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In re Estate of Riordan

July 23, 2004

[5] IN RE ESTATE OF MARY ELIZABETH RIORDAN, DECEASED
(FR. PATRICK M. RIORDAN, CLAIMANT-APPELLANT, V. ESTATE OF RIORDAN, RESPONDENT-APPELLEE).



[6] Appeal from the Circuit Court of the 13th Judicial Circuit LaSalle County, Illinois, No. 2001-P-314. Honorable Eugene P. Daugherity, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Slater

[8]  Father Patrick Riordan ("claimant") filed a statutory custodial claim against his mother's estate pursuant to section 18--1.1 of the Probate Act of 1975 ("Act") (755 ILCS 5/18--1.1 (West 2002)). The trial court dismissed the claim on the basis that the claimant had not met the three-year requirement of the Act. The court also partially granted a petition for attorney fees filed by the objecting heirs. Appeals from those orders were consolidated in this court on claimant's motion. We affirm the dismissal of the statutory custodial claim and vacate the award of attorney fees.

[9]  Facts

[10]   Claimant, a Catholic priest, is the son of the decedent, Mary Elizabeth Riordan,*fn1 who died on November 26, 2001, at the age of 99. On June 16, 1999, claimant took a leave of absence so that he could care for his mother. Prior to that time, claimant would visit Elizabeth two or more days per week at her home in Streator, Illinois, where he rendered nursing and personal care services. Claimant also often spent his vacation time at his mother's home. Claimant's sisters, Judy Arbise and Dolores Lonergan, also helped care for Elizabeth. However, after Dolores's death in 1998, and with Judy's increasing health problems limiting her ability to help, more of the responsibility fell upon claimant. After he was granted a leave of absence, claimant lived with his mother full-time and remained with her until her death.

[11]   Following Elizabeth's death, claimant filed a statutory custodial claim (755 ILCS 5/18--1.1 (West 2002)) against his mother's estate alleging that he suspended his vocation as a priest to care for his mother. As a result, according to claimant, he lost employment opportunities, experienced a significant change in lifestyle and endured emotional distress. Two of Elizabeth's heirs, Daniel and James Riordan, filed a motion to dismiss the claim on the basis that claimant had not cared for Elizabeth for the three-year period required by the Act. The trial court granted the dismissal motion on that basis.

[12]   Appeal No. 3--03--0805

[13]   Standard of review Construction of a statute is a matter of law which we review de novo. See Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 783 N.E.2d 1024 (2002).

[14]   Analysis

[15]   Section 18--1.1 of the Act provides:

[16]   "§18--1.1. Statutory custodial claim. Any spouse, parent, brother, sister, or child of a disabled person who dedicates himself or herself to the care of the disabled person by living with and personally caring for the disabled person for at least 3 years shall be entitled to a claim against the estate upon the death of the disabled person. The claim shall take into consideration the claimant's lost employment opportunities, lost lifestyle opportunities, and emotional distress experienced as a result of personally caring for the disabled person. The claim shall be in addition to any other claim, including without limitation a reasonable claim for nursing and other care. The claim shall be based upon the nature and extent of the person's disability and, at a minimum but subject to the extent of the assets available, shall be in the amounts set forth below:

[17]   1. 100% disability, $100,000 2. 75% disability, $75,000 3. 50% disability, $50,000 4. 25% disability, $25,000[.]"

[18]   (Emphasis added.) 755 ILCS 5/18--1.1 (West 2002).

[19]   Claimant acknowledges that he did not begin caring for his mother full-time until June 16, 1999. Upon her death in November of 2001, approximately 2 1/2 years had elapsed. Claimant argues, however, that he should be given credit for the two or three days of visitation per week prior to 1999, as well as the vacation time he spent at Elizabeth's home. We disagree.

[20]   The statutory award is available to one who "dedicates" himself to the care of the disabled person. That dedication is shown by "living with and personally caring for the disabled person for at least 3 years." 755 ILCS 5/18--1.1. In the absence of a statutory definition, undefined words must be given their ordinary and popularly understood meaning. In re D.F., 201 Ill. 2d 476, 777 N.E.2d 930 (2002). We believe that "living with" a disabled person entails more than visiting them when one has time, even when that visitation is regular and extensive. Many adult children visit their parents on a regular basis, but in our opinion section 18--1.1 clearly requires some sort of shared living arrangement. Indeed, this court has held that ...


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