Appeal from the Circuit Court of Deceased Cook County No. 05 P 2377 Honorable Jeffery A. Malak, Judge Presiding.
The opinion of the court was delivered by: Justice Sterba
JUSTICE STERBA delivered the judgment of the court, with opinion.
Presiding Justice Lavin and Justice Salone concurred in the judgment and opinion.
¶ 1 This case arises from a dispute involving the administration of the estate of decedent, Agnes B. Parker. A group of decedent's heirs, Bernard L. Bush, Francis A. Bush, Mary Margaret Myers, Anne Marie Allison, Marjorie McCollom and Janice Bush, as executor of the estate of Patricia A. Bush (collectively, the heirs), moved pursuant to section 2--619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(5) (West 2008)) to dismiss a counterclaim filed against the estate by respondent and counterplaintiff, Sharon McCollom (respondent). The circuit court of Cook County granted the heirs' motion to dismiss, ruling that respondent's counterclaim was untimely pursuant to section 18--12(b) of the Probate Act of 1975 (Probate Act) (755 ILCS 5/18--12(b) (West 2008)).
¶ 2 On appeal, respondent seeks: (1) the reversal of the circuit court's order granting the heirs' motion to dismiss her counterclaim; (2) a finding that the circuit court erred as a matter of law when it ruled Code section 13--207 (735 ILCS 5/13--207 (West 2008)) prohibited respondent from filing her counterclaim after the heirs had filed and served upon her a citation for recovery of assets under section 16--1 of the Probate Act (755 ILCS 5/16--1 (West 2008)); (3) a finding as a matter of law that section 13--207 permitted the filing of respondent's claim; and (4) an order reinstating the counterclaim against the estate. For the following reasons, we affirm the decision of the circuit court.
¶ 4 Decedent executed her will on November 1, 1978. On December 5, 1997, decedent executed a codicil appointing respondent as executrix of the will. On January 14, 1999, decedent granted respondent power of attorney, which allowed respondent to act as decedent's agent with respect to numerous personal transactions, including, among others, real estate, financial institution and stock transactions. The power of attorney also provided that respondent "shall be entitled to reasonable compensation for services rendered."
¶ 5 Decedent died on February 24, 2005. On April 26, 2005, respondent filed a petition for probate of will and for letters testamentary. Respondent listed the approximate value of the estate at $925,000. An exhibit attached to the petition listed a total of 13 heirs and legatees to the estate, which includes the heirs involved in this appeal.
¶ 6 Decedent's will and codicil were admitted into probate by order entered June 15, 2005. The order also appointed respondent as supervised executor of the estate.
¶ 7 Immediately upon decedent's will being admitted to probate, controversy arose between the heirs and respondent with regard to the administration of the estate. Respondent and the heirs each filed petitions for issuance of citation to discover assets directed to each other, which were granted by the circuit court on June 15, 2005.
¶ 8 The rider to the citation issued to respondent requested production of the following:
"1. Any tax returns of [decedent] including all 1099s and/or other attachments, schedules or other information relative to the preparation thereof;
2. Any and all records relating to accounts of any kind at any financial institution, brokerage firm, mutual fund company, insurance company, or other such institution or company in which [decedent] had an interest in at any time as individual owner, co-owner, joint tenant, trustee, beneficiary or in any other capacity.
3. Any and all records relating to any alleged gifts made by or on behalf of [decedent] at any time to any person, organization or entity in excess of $500.00 in any given calendar year.
4. Any and all records, invoices, receipts, estimates or other document[s] relating to or evidencing the Respondent's payment of any expenses, bills, debts or other obligation of [decedent] either for her individually or for any real estate owned by [decedent] or which she had an interest in."
¶ 9 The citations issued to the heirs requested information and documents related to the following:
"(1) any and all property or assets of, or held by or on behalf of [decedent];
(2) any keys to safety deposit boxes of [decedent];
(3) any money loaned by [decedent] to you or any other person;
(4) any money expended on behalf of [decedent];
(5) any transactions, deposits, withdrawals, transfers, or any other actions, conducted on any accounts with any Bank, investment company, financial institution or any other company, including but not limited to savings accounts, checking accounts, certificates of deposit, trust accounts, stock accounts, investment accounts or any other accounts, by or on behalf of [decedent] from January 1, 1990 to and including the present in your possession and control.
(6) any evidence of money, checks, or other property given to you by [decedent] or on behalf of [decedent], whether as a gift or loan from January 1, 1990 to the present."
¶ 10 Respondent published notice to creditors of the death of decedent in the Chicago Daily Law Bulletin on July 11, 18, and 25, 2005. The notice provided that claims against the estate may be filed on or before January 12, 2006.
¶ 11 On September 27, 2005, respondent, as supervised executor, filed the inventory of the real and personal property of decedent. The total value of the estate was listed at $971,402.
¶ 12 On February 2, 2006, respondent filed a motion for rule to show cause to be issued upon Marjorie McCollom for her failure to cooperate with the scheduling of the citation to discover assets served upon her. In an order entered on March 22, 2006, the citations issued against respondent and the heirs were continued for status to June 22, 2006. The citation for Marjorie McCollom was scheduled to be conducted on April 6, 2006. On June 22, 2006, the court entered an order discharging Marjorie McCollom from the citation filed against her.
¶ 13 On August 24, 2006, the heirs filed a petition to direct respondent under decedent's power of attorney to render an accounting. The petition alleged, inter alia, that "it appears that [respondent] obtained control over hundreds of thousands of dollars of the decedent's cash assets from bank accounts and from the sale of stock. However, the Inventory filed by [respondent] as the Executor of this estate includes only approximately $41,000 of cash." The heirs requested an order requiring respondent to file an accounting of her actions as agent for decedent listing all receipts, disbursements and significant actions under said agency and allowing the heirs to file objections against the accounting as may be appropriate.
¶ 14 In a September 13, 2006 response to the heirs' petition, respondent stated that she complied with the citation and testified that she produced all the documents within her care, custody and control. The response also stated that respondent, who listed herself as 74 years of age, was supposed to have two major surgeries and was the sole care provider to her 84-year-old husband, John McCollom, who was diagnosed with colon cancer, diabetes and heart disease. In addition, the response stated that respondent was not financially able to afford the costs and expenses associated with the petition's request for an accounting.
¶ 15 On September 26, 2006, the heirs replied to respondent's response, asserting that under section 2--7 of the Illinois Power of Attorney Act (755 ILCS 45/2--7 (West 2004)), respondent was required to keep a record of all receipts, disbursements and significant actions taken under the agency. The heirs alleged that respondent "cannot shirk her responsibilities to account for the substantial assets of the decedent that she controlled as agent merely because she claims to be ill and financially 'strapped,' and that respondent's "claim of being too ill to render an accounting does not solicit any sympathy." The heirs asserted respondent subjected one of the heirs, Frank Bush, an elderly man in ill health, to a deposition on the citation respondent had issued against him. The heirs stated that respondent claimed she disposed of records and documents in November 2004 in an attempt to justify her refusal or inability to render an accounting, but produced records dating back to 1995 for the examination of one of the heirs, Marjorie McCollom. The heirs asserted that respondent was capable of producing records when it suited her interests, but failed to produce records for a proper and full accounting while she served as decedent's power of attorney.
¶ 16 Respondent filed a surreply on October 10, 2006. She stated that during the last year of decedent's life, decedent's nursing home fees exceeded $504,000. Respondent also stated that she distributed gifts to decedent's heirs and friends totaling $450,000. Respondent rejected the argument that she was shirking her responsibilities and asserted that one or more of the heirs were trying to characterize her as a negligent or deceitful agent. Respondent requested that the court deny the heirs' petition for an accounting and moved to close the estate.
¶ 17 On November 6, 2006, the court ordered respondent to file an accounting on or before January 9, 2007. Respondent filed an accounting as former agent of decedent on January 9, 2007. The accounting included a description of the condition of decedent's home. Another document "explain[ed] the way [decedent] had [respondent] take care of her expenses," which stated:
"She had a checking account at First National Bank of Chicago [and] also a saving[s] account. Monies from the savings account would be transfer[ed] to the checking account when necessary.
At this time this is the only bank I was aware of. Frank Bush had access to over $350,000 at LaSalle [B]ank which he or I never discussed [decedent's] income or worth. Only after he was deposed was the first time I knew of that account. From 1998 [through] 2002 interest from income for those years was credited back to that account at LaSalle.
With regard to Austin Bank I contacted them, [their] records show [an] account opened in 2001 and closed in 2002 which as close as I can recall must ...