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In Re Estate of Larry W. Harn v. Danielle C. Bachman

July 3, 2012


Appeal from the Circuit Court of the 9th Judicial Circuit, McDonough County, Illinois Circuit No. 09-P-22 Honorable Richard H. Gambrell, Judge, Presiding.

The opinion of the court was delivered by: Justice Carter

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

Justices McDade and O'Brien concurred in the judgment and opinion.


¶ 1 Petitioner, Scott Harn (Scott), filed a petition to contest the 2004 will of his father, decedent, Larry W. Harn, alleging claims of undue influence and lack of testamentary capacity. The administrator of the estate, Danielle Bachman, filed a motion for summary judgment as to both claims. After a hearing, the trial court granted the motion. Scott appeals the trial court's ruling as to his testamentary-capacity claim only.*fn1 We affirm the judgment of the trial court as to Scott's undue-influence claim, which was not contested on appeal, and reverse the trial court's judgment as to Scott's testamentary-capacity claim.


¶ 3 Decedent lived in McDonough County in Blandinsville, Illinois, and passed away in March 2009. During the course of his lifetime, decedent was married and divorced three times and had three children: Scott Harn and Katina Livermore, as a result of one marriage, and Danielle Bachman, as a result of another. In 1998, decedent executed a will, in which he divided up his property between all three of his children. However, in 2004, after decedent had a falling out with Scott, he executed another will (the will or the 2004 will), which is the subject of the instant will contest. In the 2004 will, decedent gave $1 to Scott and divided up the rest of his estate between Katina and Danielle. Scott and decedent later reconciled in about 2006. Although there is some indication in the record that decedent wanted to put Scott back into his will before he died, that was never done.

¶ 4 After decedent passed away, Danielle was appointed independent administrator of his estate. In August 2009, Scott filed the instant petition to contest the 2004 will. In the petition, Scott alleged, among other things, that decedent lacked testamentary capacity to make the 2004 will in that: (1) decedent was physically ill and suffering from alcoholism; (2) decedent's alcoholism caused a disease of the mind; (3) decedent suffered from oxygen depravation and loss of function and control of his bodily and mental functions; (4) decedent did not have the ability to understand that he was providing for the disposition of his property after his death; (5) decedent did not have the ability to know the nature and extent of his property; (6) decedent did not have the ability to know the natural objects of his bounty; and (7) decedent did not have the ability to know the manner in which the will disposed of his property. Danielle, as administrator of the estate, filed a motion for summary judgment on Scott's will contest. Attached to the motion were numerous supporting documents. Scott opposed the motion for summary judgment and filed supporting documents in opposition to the motion.

¶ 5 In June and July 2011, a hearing was held on the motion for summary judgment. Although some of the above-referenced documents were filed during the course of the hearing, at the time the trial court made its ruling, it had before it the pleadings, the written arguments of the attorneys, the oral argument of the attorneys, and numerous depositions and affidavits. The evidence presented in the summary-judgment proceeding relative to the issue of testamentary capacity can be summarized as follows.

¶ 6 Scott testified in his deposition that he and decedent did not have a good relationship in 2004 and did not get along at the time the will was drafted. Scott estimated that he saw decedent less than six times that year and did not have any contact with decedent from March through July 2004. Scott did not have contact with decedent on the date the will was executed and did not know anyone who had spoken to decedent on that date. According to Scott, on the occasions that he spoke with decedent, decedent appeared or sounded "ill" from alcohol, was noticeably intoxicated a lot of the time, and would become very angry and agitated. Scott did not remember, however, if he saw decedent noticeably drunk in 2004 but stated that at times when he spoke to decedent on the phone, decedent slurred his words and was intoxicated. Scott had no knowledge of whether decedent was drunk when he made the 2004 will. Scott did not observe the decedent lose control of his bodily functions in 2004. In Scott's opinion, when he saw or spoke to the decedent in 2004, the decedent was mentally impaired.

¶ 7 Prior to 2004, when Scott was in high school, the decedent was in the hospital with a severe lung infection due to heavy smoking. His symptoms throughout that time period were shortness of breath and alcohol withdrawal. Scott stated that the decedent was like that when he lived with him when he was a child in the 1990s and probably earlier than that. Scott witnessed the decedent drink all the time when he was growing up. When Scott spoke to the decedent in the years leading up to 2004, the decedent expressed he was experiencing a lack of oxygen or that his lungs hurt and was limited on what he could do throughout those years. Scott did not specifically remember the decedent saying that in 2004, however.

¶ 8 Joe O'Donnell testified in his deposition that he had been a licensed attorney in Illinois since 1984. Over the course of his career, Joe had drafted about 15 wills a year. Joe was a friend of decedent and also performed legal work for him on occasion. Joe represented decedent in a prior divorce and drafted the 1998 will and the 2004 will. In the 1998 will, decedent left everything to his three children. However, in the 2004 will, decedent cut Scott out of the will and divided everything up between Katina and Danielle.

¶ 9 On May 14, 2004, Joe met with decedent regarding the drafting of a new will. Decedent brought into Joe's office a handwritten note listing the changes that he wanted made. The note indicated that decedent wanted to remove Scott from the will and have everything divided up between Katina and Danielle. Joe did not see decedent write the note but believed that the note was in decedent's handwriting. Joe discussed with decedent the changes that decedent wanted to make to the will and the reasons for those changes. Decedent told Joe that he had a falling out with Scott. Decedent stated further that Katina was well off and that he did not know if she would want any of his estate, but he wanted to make sure that she was aware that he recognized her as a person he wanted to be included in his estate. According to Joe, decedent appeared to be clear minded and sober and not anxious or pressured. Decedent did not appear to have any doubt, misgivings, or reservations about the way he wanted things set up in his will. As a friend of decedent, Joe felt that he would have been able to tell if decedent did not feel at ease with what he wanted to do in the will.

ΒΆ 10 Joe met with decedent again on May 17, 2004, and the 2004 will was executed on that date. Decedent appeared to be in good health at that time. The meeting took 15 to 30 minutes, and Joe went over the will with decedent. As far as Joe knew, decedent walked into the office on that date and the prior date, was alone, and there was nothing about decedent that was out of the ordinary. Decedent was not ...

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