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Colleen Bjork v. Frank P. O'meara

January 11, 2012

COLLEEN BJORK,
PLAINTIFF-APPELLANT,
v.
FRANK P. O'MEARA, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County No. 10 L 11857 Honorable Michael R. Panter, Judge Presiding.

The opinion of the court was delivered by: Justice Murphy

JUSTICE MURPHY delivered the judgment of the court, with opinion.

Presiding Justice Steele and Justice Salone concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Colleen Bjork, appeals from an order of the circuit court of Cook County dismissing her complaint against defendant, Frank P. O'Meara. On appeal, plaintiff contends that the circuit court erred in applying the statute of limitations for a will contest to her complaint and dismissing it as untimely. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 Frank J. Dama passed away on February 18, 2009, and the entirety of his estate was then distributed to defendant and his wife pursuant to his will. On February 24, 2009, defendant filed Dama's will with the clerk of the circuit court of Cook County. Plaintiff's counsel then entered his appearance on plaintiff's behalf and defendant filed a petition for probate of will and for letters testamentary. On April 16, 2009, the circuit court entered an order admitting the will to probate and appointing defendant as the independent representative of Dama's estate. In May and June 2009, plaintiff filed petitions for the issuance of citations to discover information and recover property to The Northern Trust Company (Northern Trust). Plaintiff asserted that defendant considered the assets contained in a Northern Trust bank account as belonging to the estate and that she was the rightful owner of such assets. On July 14, 2009, the court entered an order allowing the issuance of a citation for discovery of information to Northern Trust, which then provided plaintiff with numerous requested documents. On October 16, 2009, plaintiff filed a petition for leave to depose Mary Williams, a Northern Trust employee, in furtherance of the discovery citation, and the court denied that petition. Plaintiff filed a motion to reconsider and clarify the denial of her petition, and the court denied her motion. On April 2, 2010, defendant filed a final report as independent representative of Dama's estate and the court entered an order discharging him from his role as independent representative and closing the estate.

¶ 4 On October 15, 2010, plaintiff filed a complaint against defendant for tortious interference with a testamentary expectancy in which she asserted that Dama had planned to name her as the pay-on-death beneficiary of a Northern Trust bank account. Plaintiff alleged that defendant had interfered with Dama's plan to do so by fraud, undue influence, misrepresentation, or other tortious means, that he had benefitted from his tortious conduct where the proceeds of the account were distributed to him and his wife pursuant to Dama's will, and that she would have been named the beneficiary of the account if not for defendant's wrongdoing. Plaintiff requested the court enter judgment in her favor in an amount equal to $566,695.52, plus interest, and award her attorney fees and expenses.

¶ 5 On December 3, 2010, defendant filed a motion to dismiss plaintiff's complaint asserting, inter alia, that her action was untimely where it was not commenced within the six-month statute of limitations for a will contest set forth in section 8-1 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/8-1 (West 2008)). Defendant maintained that Dama's will was admitted to probate on April 16, 2009, and that plaintiff was therefore required to file a will contest or tort claim by October 16, 2009, but did not do so. Plaintiff responded that her complaint was not subject to section 8-1 of the Probate Act because she had alleged a tort claim against defendant and was not contesting the validity of Dama's will. On May 31, 2011, the circuit court granted defendant's motion to dismiss, finding that plaintiff's action was untimely where she participated in the probate proceedings but did not contest the will and failed to file her claim until well after the six-month statute of limitations had run. Plaintiff now appeals from that order.

¶ 6 ANALYSIS

¶ 7 Plaintiff contends that the circuit court erred in granting defendant's motion to dismiss because section 8-1 of the Probate Act does not apply to her complaint. In ruling on a motion to dismiss, a court must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party, and this court will review the grant of such a motion de novo. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352 (2008).

¶ 8 Pursuant to section 8-1 of the Probate Act, an individual must file a petition to contest the validity of a will within six months of the date on which the will is admitted to probate. 755 ILCS 5/8-1 (West 2008). Although a tort action for interference with a testamentary expectancy is distinct from a petition to contest the validity of a will in several important respects, Illinois courts have applied the six-month statute of limitation set forth in section 8-1 of the Probate Act to such tort claims in certain circumstances. In re Estate of Ellis, 236 Ill. 2d 45, 51-53 (2009).

¶ 9 In Robinson v. First State Bank of Monticello, 97 Ill. 2d 174, 186 (1983), our supreme court held that the circuit court correctly dismissed the plaintiffs' claim for tortious interference with their testamentary expectancy where it was not filed within the six-month limitation period for a will contest. In doing so, the court determined that the validity of the will at issue had been established where it was not contested in a timely will contest and that the plaintiffs' claim was based on the assertion that the decedent's estate should pass to them through intestacy because her will was the product of the defendant's fraud and undue influence and therefore invalid. Id. at 182-84. The court held that the purpose of section 8-1 of the Probate Act was "to limit the time within which the validity of a will may be questioned and to create stability in the administration of estates" and that allowing the plaintiffs to maintain their tort action would defeat that purpose because they would then be provided with a second opportunity to challenge the validity of the will. Id. at 185. The court also clarified: "we believe that section 8-1 was enacted in an attempt to make the administration of an estate as orderly as possible because of the gravity of the interests at stake; we therefore refuse to have section 8-1 circumvented by allowing the plaintiffs in this case to maintain a tort action which in its practical effect would invalidate a will that has become valid under the Probate Act of 1975." Id. at 186.

¶ 10 In In re Estate of Ellis, 236 Ill. 2d 45, the plaintiff alleged that the defendant interfered with its inheritance expectancy by unduly influencing the decedent to provide him with numerous gifts and to execute a new will naming him as the sole beneficiary and heir. The court held that the plaintiff's tort claim was not subject to the six-month limitation period set forth in section 8-1 because it did not know that it was a beneficiary of the decedent's previous will until more than two years after the final will had ...


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