Appeal from the Circuit Court of Cook County. 07 P 6699 The Honorable James W. Kennedy, Judge Presiding.
The opinion of the court was delivered by: Justice Pucinski
JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Presiding Justice Gallagher and Justice Lavin concurred in the judgment and opinion.
Petitioner-appellee and cross-appellant, Margaret A.H. Whitaker, independent executor of the estate of Margery M. Elias, deceased, filed a petition for recovery of citation against respondent-appellant and cross-appellee, Eleanor A.H. McDonnell, to recover personal property and approximately $471,000 which was transferred from Elias's brokerage account to McDonnell pursuant to a transfer-on-death beneficiary form Elias executed while McDonnell was acting under a power of attorney. The trial court found that Elias lacked mental capacity to effect the transfer of money and gifts of personal property. The trial court also found that there was a presumption these transfers were fraudulent because McDonnell was appointed Elias's power of attorney, and that McDonnell failed to rebut this presumption. The court awarded Whitaker her fees and costs as executor, but assessed all fees and costs against the estate. Both appealed. McDonnell seeks to have the judgment reversed. Whitaker seeks to have the fees and costs assessed entirely against McDonnell. We find the trial court's determination of lack of testamentary capacity and use of undue influence was not against the manifest weight of the evidence and affirm that judgment. We also affirm the portion of the fee order awarding the total amount of attorney fees and costs. However, the trial court abused its discretion in not equitably apportioning the fees and costs between the estate and McDonnell, and thus, we reverse that portion of the order and remand for a determination of the fees and costs incurred as a result of the misconduct of McDonnell and order that this portion of fees and costs be assessed against her.
The following facts were adduced at trial in the citation proceedings.
Elias executed a will on September 14, 1997, and two codicils, one on January 21, 1988, and another on February 10, 1995. The will left $5,000 to Elias' son, Ramon J. Elias, Jr. (Jay), with the balance of her estate split equally between McDonnell and Whitaker. McDonnell and Whitaker are both daughters of the late Elias. The January 21, 1988, codicil named as executors Elias' husband, followed by Whitaker, then in succession McDonnell, William A. Edwards, and Society National Bank. The second codicil dated February 1, 1995, only amended the first paragraph of the will to reflect that all jewelry would be split equally between McDonnell and Whitaker, and did not amend any other will provision.
Elias and her husband, Ramon Elias, had a 45-acre farm property and residence in Ohio.
Ramon Elias died in March 2004. Whitaker testified that before her father died, she would visit on holidays and at other unscheduled times, but the only time the whole family got together was for her father's funeral. The family had a history of friction, including the disowning of Whitaker and McDonnell's brother Jay about 30 years ago, and there was always friction between Whitaker and McDonnell.
Elias decided to sell the farm after her husband died. There were frequent telephone calls among Elias, McDonnell and Whitaker regarding where Elias would live. Elias eventually moved into an apartment in Mayfield, Ohio, in March 2005.
After the farm was sold in August 2005, McDonnell and Whitaker both spent four weekends in October 2005 helping Elias pack up the items in the house. Whitaker testified that Elias was "wandering" and was not packing, but McDonnell testified that Elias was doing loads of laundry, making meals for everyone, cleaning and organizing the packing, and assisting in the moving process.
On the second weekend, Whitaker and McDonnell were sorting items for packing when Elias screamed that one of the paintings, either a Picasso or a Rembrandt, was missing. McDonnell accused Whitaker of taking it and said that either Whitaker or their brother Jay must have it. Whitaker stated that was not possible because she arrived on Friday night at 9 p.m., after McDonnell arrived, and left Sunday night, while McDonnell left Monday morning, and McDonnell had the key. McDonnell tackled Whitaker in the atrium as Whitaker tried to leave to take a break, and Elias told the two of them to stop.
On the third weekend, Whitaker arrived at the farm at around 9 p.m. as usual, but the house was locked and dark. Elias and McDonnell arrived at 11:30 p.m. and went inside and hung up their coats. Whitaker followed them inside and stated, "You two are the two most self-centered women that I have ever known in my life," because neither had called Whitaker to let her know they would be running late. At that point, Elias slapped Whitaker. Whitaker in turn touched Elias, and Elias lost her balance and stepped back but did not fall. McDonnell did not witness this altercation. Also, McDonnell never witnessed Whitaker strike Elias at any time. Whitaker stayed overnight and proceeded to continue assisting in packing that weekend, speaking with her mother about the order of packing items. Elias was still wandering around the house. On the final weekend, moving trucks moved all the personal property they had packed into four storage units in Mayfield Heights, down the street from Elias' apartment.
The only items gifted to McDonnell by Elias were a baby grand piano, some cabinets, books, and two chandeliers. Whitaker was given the player piano, a small marble end table, some books and two chandeliers, because, according to Whitaker, it was an even split. Other than the items Elias took to her new apartment, all remaining personal property went into storage. Whitaker testified that McDonnell took other personal property of Elias, while McDonnell testified that she was given the items by Elias, including a gold ring, blue lamp, and flatware. As to particular items, Whitaker's and McDonnell's valuations varied substantially. In particular, the flatware given to McDonnell is alleged by Whitaker to be worth up to $200,000, but McDonnell's appraiser placed the value of the flatware at approximately $14,050. McDonnell's appraiser further appraised the contested personal property in possession of McDonnell at $31,000, and the personal property of the Estate in storage at $45,000.
Witness Cosette Gaul helped Elias do work on the farm while Elias owned the farm and had many conversations with her during 2004 to 2005, which continued by phone one to two times a week after the farm was packed up, into 2006. Gaul testified that in all these conversations, Elias was of sound mind and memory. Gaul was present on one of the weekends when Whitaker and McDonnell were helping Elias pack up the house and observed Whitaker swearing and being rude to everyone including Elias. Gaul testified that "Eleanor [McDonnell] seemed to be there for her mother. I wouldn't say Maggie [Whitaker] was."
Ann Lax testified that she had known the Eliases for 50 years. While Elias was living on the farm, Lax saw her in person once a month and spoke with her one to two times a week. After Ramon Elias died, Lax spoke with Elias by telephone approximately three times a week. After Elias moved to Mayfield Heights in August 2004, Lax saw her in person four times a month and spoke with her on the telephone one to two times a week. Lax testified that Elias seemed normal and of sound mind and memory.
Whitaker visited Elias in person at least once a month after her father's death and before Elias moved from the farm to the apartment. Prior to her father's death, Whitaker recalled her mother's personality as "very, very strong-willed" and "very, very independent." She loved doing activities, going to a movie or the symphony or the ballet, and she traveled. She also organized dinners, cocktail parties, and gatherings and was very organized. Whitaker testified that Elias became confused and very depressed after her husband died and had trouble remembering things.
Elias had several car accidents, one of which resulted in the total loss of her vehicle. Whitaker arranged for the purchase of a new vehicle. However, six months later Elias called Whitaker to tell her the car was getting repossessed and that the dealer made a mistake with the paperwork. Elias had decided to put the insurance money from the accident in her account, instead of paying the car in full, and executed a 60-month note. The dealer had given her a coupon book for her payments, but Elias told Whitaker she never received a coupon book and was not aware that she had a note on the vehicle. Elias also indicated she was having trouble balancing her checkbook. Whitaker discussed the issue with McDonnell and they decided that Elias' broker, John Turner, would assist her with paying her bills and balancing her checkbook. Elias was advised to pay for the vehicle in full and so she kept it.
There was also an incident where Elias struck a vehicle in 2005 in a shopping mall parking lot and did not remember doing so. She called Whitaker to complain that she thought she was being involved in insurance fraud. Whitaker informed McDonnell of this incident.
Whitaker was concerned about Elias and wrote a letter to Elias' primary physician, Dr. Thomas King, in March 2005 outlining her concerns and Dr. King saw Elias. Elias told Whitaker that Dr. King gave her a clean bill of health, but Whitaker did not believe Elias.
Whitaker spoke with McDonnell and McDonnell indicated that she had some of the same concerns. They discussed that Elias had gotten lost on the way to a restaurant that she had been going to for 45 years. McDonnell indicated she would research and find a better doctor for Elias to ascertain whether Elias had a confusion problem, a depression problem, or a hearing problem. According to McDonnell, Dr. King called her and told her he thought Elias was depressed, but that otherwise she was fine.
McDonnell testified that she had frequent contact with her mother after her father died, including in-person visits at least one week every month. McDonnell also had phone contact with Elias two to three times per week.
Elias executed a health care power of attorney on September 28, 2005, naming McDonnell, with Whitaker as successor. On that same date, Elias executed a durable general power of attorney appointing Whitaker as her power of attorney. However, on November 16, 2005, Elias executed another durable general power of attorney instead naming McDonnell, with Whitaker as successor. The durable power of attorney granted broad powers to McDonnell to handle and dispose of Elias' real and personal property.
According to McDonnell, she did not invoke her power of attorney because Elias gave her permission to talk to her doctors. However, on February 20, 2006, McDonnell sent a fax to Dr. King asking to "have my mother sign consent for me to be able to assist you regarding her matters," and indicating she had previously faxed the signature page of her health care power of attorney executed September 28, 2005.
McDonnell moved Elias to Illinois initially for testing, and then moved her there permanently. According to McDonnell, in December 23, 2005, she took Elias to Alexian Brothers Hospital in Elk Grove Village, Illinois, because she was still attempting at that time to get Elias into an assisted living facility in Cleveland where Elias wanted to go but Dr. King was not cooperating. It was more convenient for McDonnell to take Elias to doctors in Illinois as opposed to Ohio. McDonnell did not look into any other doctors for Elias in the Cleveland area.
McDonnell was not concerned with Elias' mental capacity; rather, she wanted to investigate whether Elias had a hearing problem. However, McDonnell did not make any appointments for an ear, nose and throat specialist. McDonnell was aware that the doctor at Alexian Brothers Hospital, Dr. Forchetti, specialized in treating patients with memory problems who had Alzheimer's and dementia, but claimed dementia was "never" a concern of hers.
Whitaker was unaware that McDonnell took Elias to Alexian Brothers Hospital in Illinois, and none of the evaluations or test results were shared with Whitaker. According to McDonnell, she was acting as Elias' "sole sounding board" within the family because "[t]hat's the way [Elias] wanted it." Elias specifically informed McDonnell that she did not want Whitaker or their brother Jay to know anything about her life.
Whitaker found out that McDonnell was moving Elias to Barrington from her brother Jay. McDonnell had left a voicemail for Jay stating that Elias was moving to Chicago and if he wanted to see Elias he should have lunch with them in Cleveland. Whitaker decided to go as well, even though McDonnell did not invite her, and drove 3 1/2 hours from Dayton to Cleveland. McDonnell told Whitaker and Jay that she had a power of attorney, that she was the one in control of making business decisions for Elias, and if Whitaker or Jay wanted to know anything about Elias, they were to call McDonnell and not Elias.
Whitaker was "in shock." Previously, Elias had been adamant about staying in Cleveland because she had been there for 50 years and had a social circle of friends there. At no time in 2006 did Elias ever express to Whitaker that she wished to move from the Cleveland area. According to McDonnell, however, Elias had no objection to moving to Illinois and was looking forward to it as a new "adventure," and knew many of McDonnell's friends. McDonnell also claimed that at the lunch, both Whitaker and Jay seemed "relieved" that McDonnell was taking Elias with her.
After the lunch, McDonnell left with Elias and drove her to Chicago. Whitaker consulted an attorney about McDonnell's power of attorney and moving Elias to Illinois, but the attorney told her once the power of attorney was in place, there was nothing Whitaker could do. McDonnell denied making these statements and claimed Whitaker and Jay perhaps "misunderstood" what she said.
At Alexian Brothers Hospital, Michelle SanFilippo, a physician assistant, worked for Dr. Forchetti. SanFilippo also directed special care units for patients with Alzheimer's and dementia and was a volunteer for the Alzheimer's Association for 10 years. SanFilippo evaluated Elias for her mini-mental status examination at Alexian Brothers on December 23, 2005. Elias came with McDonnell. Elias did not want to be at the evaluation, was angry about not living in Ohio, and was very irritated. Elias also had poor insight into the importance of paying bills. Based on this evaluation, it was recommended that Elias not live alone for safety concerns due to her memory problems, behavior and lack of insight into her problem. Elias eventually was placed and lived at Lake Barrington Woods in Illinois from June 2006 to March 2007.
Dr. Forchetti performed a mini-mental-status examination in early 2006. Forchetti has an M.D. in neurology and a Ph.D. in neuropharmacology and sees approximately 1,000 patients a year who suffer from dementia or Alzheimer's. Dr. Forchetti remembered Elias as being very resistant to evaluation. Dr. Forchetti found Elias to be suffering from mild to moderative cognitive impairment. However, according to Dr. Forchetti, even in November 2006 Elias was partially competent. Dr. Forchetti also testified that urinary tract infections can affect a patient's cognitive function. Dr. Forchetti further testified that she and other members of her staff are trained to evaluate whether family members are acting in the best interests of the patient and that, in her opinion, McDonnell was "absolutely" acting in the best interests of Elias.
The next time Elias was evaluated at Alexian Brothers Hospital was September 12, 2006, when she was again seen by SanFilippo. At that time, Elias was already at Lake Barrington Woods, but was having behavioral issues. McDonnell told SanFilippo that Elias was wandering into other residents' rooms and did not respond well to redirection. Elias did not know the season, month, day, date, or the location of the place they were in terms of state, county, town or city, hospital or floor. SanFilippo felt Elias needed to live in a more structured environment.
SanFilippo also saw Elias for another mini-mental-state examination on March 21, 2007. On this date, Elias only knew that it was spring. Elias was unable to recall the words "apple, table, and penny." The note for this visit indicated that McDonnell moved Elias to a dementia-specific unit at another facility. McDonnell's report from that facility was that Elias often refused to eat and to take her medication. There was also a note by Dr. Forchetti:
"Even long-term memory appears severely compromised at this time. The patient cannot tell me nothing [sic] of her youth, of her past in general. She recalls to have been married but cannot tell the name of her husband. She cannot name ...