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In Re: the Estate of William Kendall v. Walter K. Nicholls

September 29, 2011

IN RE: THE ESTATE OF WILLIAM KENDALL
NICHOLLS, DECEASED, BEVERLY J. SHORES, COEXECUTOR OF THE ESTATE OF WILLIAM KENDALL NICHOLLS,
DECEASED, PETITIONER-APPELLEE,
v.
WALTER K. NICHOLLS, RESPONDENT-APPELLANT, AND UNITED COMMUNITY BANK, AN ILLINOIS BANKING CORPORATION, RESPONDENT.



Appeal from Circuit Court of Sangamon County No. 07P585 Honorable John W. Belz, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Knecht

PRESIDING JUSTICE KNECHT delivered the judgment of the court, with opinion.

Justices Steigmann and Cook concurred in the judgment and opinion.

OPINION

¶ 1 Following the death of William Kendall Nicholls, petitioner, Beverly J. Shores, coexecutor of his estate, filed a petition for discovery and recovery citation against respondent, Walter K. Nicholls, coexecutor of Nicholls' estate. The action sought to recover funds petitioner asserted belonged to the estate. Respondent changed beneficiaries of certificates of deposit owned by Nicholls to himself upon Nicholls' death under authority purportedly given him by his appointment as power of attorney by Nicholls. Respondent appeals from the trial court's order in favor of petitioner. Respondent argues the trial court erred in (1) applying the Illinois Power of Attorney Act (Act) (755 ILCS 45/1-1 et seq. (West 2004)) so as to limit the scope of the agent's authority pursuant to the subject power of attorney and (2) barring testimony of noninterested witnesses concerning alleged oral communications with decedent regarding authorizing respondent to take the complained-of actions regarding certificates of deposit. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On February 18, 2005, Nicholls executed his last will and testament naming petitioner and respondent, his niece and nephew, as coexecutors. The will provided the assets of Nicholls were to be equally divided between petitioner and respondent. Those assets included several certificates of deposit purchased at State Bank of Auburn (now known as United Community Bank).

¶ 4 On June 17, 2005, respondent drove Nicholls to the office of Nicholls' attorney.

On that date, Nicholls signed a document entitled "Durable General Power of Attorney." An employee of the attorney came out to the automobile occupied by Nicholls and respondent and witnessed and signed the document as notary. There was no other witness.

¶ 5 After that date and prior to Nicholls' death, respondent, using his power of attorney, renewed or purchased additional certificates of deposit at United Community Bank (the Bank) and changed the beneficiaries of the certificates of deposit. Specifically, respondent (1) removed the name of petitioner as a beneficiary and made the certificates payable on death to himself or (2) he named the owners as Nicholls "or" himself. All of the funds to acquire the certificates were the property of Nicholls.

¶ 6 On September 8, 2007, Nicholls died. On October 12, 2007, his will was admitted to probate and petitioner and respondent were appointed as coexecutors. Between September 12 and November 30, 2007, respondent presented for payment and redeemed four certificates of deposit in the total amount of $615,291.81.

¶ 7 On November 4, 2009, petitioner filed a petition for discovery and a recovery citation against respondent alleging he improperly changed the beneficiaries on the certificates of deposit. On January 4, 2010, petitioner filed a motion in limine seeking to bar respondent from testifying regarding alleged oral communications with Nicholls concerning his authorization of the actions respondent took with regard to the certificates of deposit. On April 23, 2010, petitioner filed an additional motion in limine seeking to bar employees of the Bank from testifying to the same.

¶ 8 On January 27, 2010, a hearing was held on the petition. Respondent testified he had the power to make the changes to Nicholls' certificates of deposit under his power of attorney, and he contended he made the changes at Nicholls' behest. The trial court did not rule on petitioner's motion in limine in regard to testimony from respondent; but in ruling on objections by petitioner's counsel, the court barred respondent from testifying to any conversations with decedent, Nicholls.

¶ 9 The trial court continued the hearing to March 24, 2010, for a hearing on the motion in limine and an offer of proof by respondent. The court asked for memoranda of law regarding the issue of the scope of the power of attorney and the motion in limine. On March 24, the matter was continued to April 30 for further legal arguments and to May 19 for possible testimony. On April 30, arguments were heard. The issue of both motions in limine was taken under advisement.

¶ 10 On May 17, 2010, the trial judge entered an order via docket entry in which he found, based on "arguments of counsel and submitted case law and evidence in the record," the durable general power of attorney at issue did not allow respondent to name or change beneficiaries of the certificates of deposit. The court found no such authority in the power of attorney in either the general grant clause, the banking powers clause, or the tax power clause.

ΒΆ 11 The trial court also found because no ambiguity, no oral evidence would be allowed to be considered. Further, the court found probate law, the parol evidence rule, and relevancy precluded testimony with ...


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