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In re Estate of Mohr

June 9, 2005

IN RE ESTATE OF JOHN MOHR, DECEASED.
(WILMA THINSCHMIDT, PETITIONER-APPELLANT,
v.
THOMAS CARTALINO, AS EXECUTOR OF THE ESTATE OF JOHN MOHR, DECEASED, AND AS LEGATEE AND INDIVIDUALLY, RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Cook County. Honorable Jeffery A. Malak, Judge Presiding.

The opinion of the court was delivered by: Justice Quinn

Wilma Thinschmidt filed a petition in the circuit court of Cook County pursuant to section 8-1 of the Illinois Probate Act of 1975 (755 ILCS 5/8-1 (West 2002)) to contest the validity of her brother's will. The executor of the brother's estate moved to dismiss Thinschmidt's petition under section 2-619(a)(5) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 2002)) based on the fact that the petition was untimely. The motion to dismiss was granted because the trial court found it lacked jurisdiction due to the fact that the action was not timely filed. Thinschmidt now appeals that dismissal and contends that the trial court maintained jurisdiction to hear her petition to contest the validity of her brother's will. For the reasons that follow, we affirm the trial court's order dismissing Thinschmidt's petition.

BACKGROUND

John Mohr died on February 20, 2003, with a will dated January 26, 2003. Joseph McDonough, a nephew of the deceased, filed a petition for letters of administration. He was appointed an independent administrator on February 24, 2003. On March 7, 2003, Thomas Cartalino filed his cross-petition for probate of will and for letters testamentary. Pursuant to the cross-petition, Mohr's will was admitted to probate on March 7, 2003. The letters of office previously issued to McDonough were revoked.

Concurrent with the admission of the will to probate, Mohr's sister Wilma Thinschmidt filed a petition for proof of will pursuant to section 6-21 of the Probate Act (755 ILCS 5/6-21 (West 2002)). The hearing on the formal proof of will was set for May 2, 2003. The trial court heard testimony from Michael Malinowski, one of the attesting witnesses and Robert Kall, an attorney and scrivener. The hearing was continued approximately seven times due to the inability to locate one of the witnesses to the will. On March 3, 2004, the missing witness, James Peck, testified as to the due execution and attestation of the decedent's will and the trial court entered an order confirming the order admitting the will to probate.

On July 30, 2003, during the pendency of the petition for proof of will, Thinschmidt requested and was granted leave to file a petition to contest the admission of the will. Thinschmidt filed a petition to contest admission of the will on September 11, 2003.

Cartalino filed a motion to dismiss the petition to contest the admission of the will on the basis that the six-month statutory period had expired. Following a hearing on Cartalino's motion to dismiss, the trial court found that the petition to contest admission of the will was not filed within the six-month period as required by section 8-1 of the Probate Act (755 ILCS 5/8-1(a) (West 2002)) and that the court did not have jurisdiction to hear the petition. The trial court then entered an order granting Cartalino's motion and dismissing the petition to contest admission of the will. Thinschmidt now appeals.

ANALYSIS

Thinschmidt contends on appeal that the trial court erred in dismissing her petition to contest admission of the will. She argues that the trial court gave her leave to file the document, clearly contemplating the filing of a petition at some point in the future. She argues that she should not be punished when the trial court's order set no time restriction for actually filing the petition. Thinschmidt also notes that, at the time she was granted leave to file, the petition for proof of will was pending and unresolved. Thinschmidt argues that, by granting leave to file, the trial court necessarily retained jurisdiction to enforce that order and to hear her will contest.

"[T]he 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." In re Estate of Schlenker, 209 Ill. 2d 456, 461-62 (2004), citing Handley v. Conlan, 342 Ill. 562, 565 (1931). An action to admit a will to probate cannot be expanded to constitute a will contest, and if no direct proceeding to contest the will is brought within the statutory period, the validity of the will is established for all purposes. In re Estate of Mayfield, 288 Ill. App. 3d 534, 538 (1997).

Section 8-1 of the Probate Act provides, in pertinent part, as follows:

"Within 6 months after the admission to probate of a domestic will *** any interested person may file a petition in the proceeding for the administration of the testator's estate or, if no proceeding is pending, in the court in which the will was admitted to probate, to contest the validity of the will." 755 ILCS 5/8-1(a) (West 2002).

The time limit set out in the statute limiting the time in which to file will contests is not a statute of limitations in the ordinary sense but is a jurisdictional statute, for without compliance with the applicable time limit, the trial court loses jurisdiction to hear the will contest. Julia Rackley Perry Memorial Hospital v. Peters, 81 Ill. App. 3d 487, 489 (1980). "[T]he basic justification for the construction of the statute as one of a limitation on the trial court's jurisdiction is the necessity to expedite the administration and distribution of estates and to prevent undue delay in the settlement and determination of property interests created by a will." Julia Rackley Perry Memorial Hospital, 81 Ill. App. 3d at 490. In this case, the decedent's will was admitted to probate on March 7, 2003, and, therefore, pursuant to section 8-1 of the Probate Act, Thinschmidt had six-months from that date to file a petition to contest the validity of that will. However, Thinschmidt filed her petition to contest the will on September 11, 2003, beyond the required six month period.

Thinschmidt argues, nonetheless, that the trial court's order granting leave to file a petition to contest the will, entered during the statutory period to contest the will, conferred jurisdiction on the court to hear the later-filed contest. We reject this argument because section 8-1 of the Probate Act specifically requires that the petition to contest the validity of the will be filed within six months after the admission to probate of the will. "Where a statute is clear and unambiguous, we cannot restrict or enlarge its meaning. Rather, we must interpret and apply it in the manner in which it was written. We cannot rewrite a statute to make it consistent with the court's idea of orderliness and public policy." Estate of Schlenker, 209 Ill. 2d at 466, citing Henrich v. Libertyville High School, 186 Ill. 2d 381, 394-95 (1998). ...


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