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In re Estate of Schlenker

April 01, 2004

IN RE ESTATE OF LEVI E. SCHLENKER, DECEASED
(IMOGENE RODGERS, APPELLEE,
v.
TROY SCHLENKER, EX'R, ET AL. (TROY SCHLENKER, APPELLANT)).



The opinion of the court was delivered by: Justice Rarick

PUBLISHED

Docket No. 96402-Agenda 12-January 2004.

Imogene Rodgers filed a petition in the circuit court of Union County pursuant to section 8-1 of the Probate Act of 1975 (755 ILCS 5/8-1 (West 2002)) to contest the validity of her father's will. The executor of the father's estate moved to dismiss Imogene's petition under 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2002)) based on lack of standing. The motion to dismiss was granted. The appellate court reversed and remanded. 338 Ill. App. 3d 761. We granted the executor's petition for leave to appeal. 177 Ill. 2d R. 315. For the reasons that follow, we now affirm the appellate court's judgment.

The pertinent facts are undisputed. The father, Levi E. Schlenker, died on July 16, 2001. His wife, Blanche, had predeceased him, as had two of the couple's four children, Darrell and Johnnie. The father was survived by his remaining two children, a daughter named Imogene Rodgers and a son named Troy, both of whom were adults. The father was also survived three grandchildren, Bradley Schlenker and Ashley Schlenker Funk, who were the offspring of his deceased son Darrell, and Brian Rodgers, who was Imogene's child.

Prior to his death, the father had allegedly executed four separate wills. The first was dated February 14, 1990. The last bore the date January 4, 2001. Only three of the wills have been found. These include both the February 14, 1990, and the January 4, 2001, wills, as well as a will dated September 16, 1998.

Following the father's death, a petition was filed in the circuit court of Union County to have the January 4, 2001, will admitted to probate. See 755 ILCS 5/6-2 (West 2002). On August 22, 2001, the court entered an order admitting that will to probate and issuing letters testamentary to the executor. The person appointed executor was Troy, the father's surviving son.

Had the father died intestate, Imogene and Troy, his two surviving children, would each have inherited a one-third share of his real and personal property under the Illinois rules of descent and distribution. The remaining one-third share would have been divided equally between Bradley and Ashley, the two surviving children of his deceased son Darrell. 755 ILCS 5/2-1(b) (West 2002). Under the January 4, 2001 will admitted to probate, Imogene, Bradley and Ashley received nothing. They were expressly excluded from the will, as was Imogene's son, Brian.

Within the period prescribed by statute, Imogene filed a petition under section 8-1 of the Probate Act (755 ILCS 5/8-1 (West 2002)) to contest the will's validity. As grounds for her petition, Imogene asserted that her father had been impaired by a variety of physical and mental conditions, including severe and chronic illnesses, and lacked the mental capacity to make decisions regarding the disposition of his property. Imogene further asserted that her brother Troy had breached fiduciary duties he owed their father and exerted undue influence over him.

Acting in his role as executor, Troy moved to dismiss Imogene's petition pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2002)). Troy's motion argued that Imogene lacked standing to contest the January 4, 2001, will because a ruling on the will's validity would not affect her position. Even if Imogene's allegations proved true and the January 4 will were declared to be invalid, there was still the matter of her father's three prior wills. According to Troy, Imogene stood to receive nothing under those wills just as she stood to receive nothing under the January 4, 2001, will. As a result, the only possible way Imogene could ever claim a legally cognizable interest in her father's estate is by showing that all of the prior wills were invalid too. Imogene's present petition, however, made no attempt to do that. It was concerned exclusively with the January 4 will. The prior wills were not challenged.

The circuit court found Troy's position to be meritorious and granted his motion to dismiss. Imogene appealed. The appellate court reversed and remanded for further proceedings. It held that because Imogene was an heir who would inherit from her father's estate if it was determined that the estate should be distributed under this state's laws of intestacy, admission of the January 4, 2001, will to probate would have a detrimental effect on her pecuniary interests. In the appellate court's opinion, that was sufficient to confer on her the right to bring this will contest. Validity of the previous wills, which have not yet been submitted or proved, did not have to be resolved first. "While judicial economy may be best served if the 2001 will and all prior wills are considered successively in a single action," the court observed, the parties were not required to follow that approach. 338 Ill. App. 3d at 764.

Troy, as executor of his father's estate, petitioned our court for leave to appeal from the appellate court's judgment. We allowed that petition (177 Ill. 2d R. 315), and the matter is now before us for review. As indicated earlier in this opinion, the appeal arises in the context of an order dismissing Imogene's will contest petition pursuant to section 2-619(a)(9) of the Code of Civil Procedure. Section 2-619(a)(9) permits involuntary dismissal where "the claim asserted *** is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2002). The phrase "affirmative matter" refers to something in the nature of a defense that negates the cause of action completely or refutes crucial conclusions of law or conclusions of material fact contained in or inferred from the complaint. The affirmative matter asserted by Troy in this case is Imogene's lack of standing. Our precedent makes clear that lack of standing qualifies as "affirmative matter" within the meaning of section 2-619(a)(9) and may properly be challenged through a motion to dismiss under that statute. Glisson v. City of Marion, 188 Ill. 2d 211, 220 (1999).

Under Illinois law, a plaintiff need not allege facts establishing standing. Rather, it is the defendant's burden to plead and prove lack of standing. Where standing is challenged in a motion to dismiss under section 2-619, a court must accept as true all well-pleaded facts in plaintiff's complaint and all inferences that can reasonably be drawn in plaintiff's favor. The court should grant the motion only if the plaintiff can prove no set of facts that would support a cause of action. Chicago Teachers Union, Local 1 v. Board of Education of the City of Chicago, 189 Ill. 2d 200, 206 (2000). An order granting a motion to dismiss based on lack of standing presents a question of law which we review de novo. Lyons v. Ryan, 201 Ill. 2d 529, 534 (2002).

The right to contest the validity of a will is purely statutory. It must be exercised by the person or persons, in the manner, and within the time prescribed by the Probate Act. Handley v. Conlan, 342 Ill. 562, 565 (1931). Section 8-1 of the Probate Act of 1975 (755 ILCS 5/8-1 (West 2002)) provides that a petition to contest the validity of a will may be filed by "any interested person." An "interested person" is defined by the Probate Act as

"one who has or represents a financial interest, property right or fiduciary status at the time of reference which may be affected by the action, power or proceeding involved, including without limitation an heir, legatee, creditor, person entitled to a spouse's or child's award ...

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