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In Re: the Estate of Wyverne Blickenstaff, Deceased v. Jon M. Blickenstaff

December 18, 2012

IN RE: THE ESTATE OF WYVERNE BLICKENSTAFF, DECEASED, SCOTT E. BLICKENSTAFF AND KIM D. BLICKENSTAFF,
PETITIONERS-APPELLEES, AND
TODD A. BLICKENSTAFF, PETITIONER,
v.
JON M. BLICKENSTAFF, AS EXECUTOR OF THE ESTATE OF WYVERNE BLICKENSTAFF; AND WILLIAM R. KOHLHASE, RESPONDENTS-APPELLANTS.



Appeal from Circuit Court of Woodford County No. 06P26 Honorable Charles M. Feeney, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

Carla Bender 4th District Appellate Court, IL

JUSTICE APPLETON delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Turner concurred in the judgment and opinion.

OPINION

¶ 1 Petitioners, Scott E. Blickenstaff and Kim D. Blickenstaff, are challenging the will of their deceased father, Wyverne A. Blickenstaff. They also have petitioned the trial court to remove their brother, Jon M. Blickenstaff, from the position of executor. During pretrial discovery in this litigation, petitioners requested the executor's personal financial documents as well as the billing statements corresponding to attorney fees he paid, without prior court approval, from the assets of the estate. The executor refused these requests. Later, the executor and his attorney, William R. Kohlhase, refused to comply with a court order to turn over the documents in question. They adhered to their position that, under the law, the documents were exempt from discovery.

Consequently, the court found them to be in contempt of court and fined them $100. Respondents, the executor and Kohlhase, appeal.

¶ 2 We find an abuse of discretion in requiring the executor to turn over his personal financial documents (e.g., his individual tax returns, private bank statements, and cancelled checks), because we do not see how those documents are relevant to the issues framed by the pleadings; nor do we see how those documents could reasonably be expected to lead to admissible evidence. We agree, however, that respondents should have to produce the unredacted billing statements corresponding to the attorney fees paid with estate assets. By paying the attorney fees out of the estate, the executor voluntarily injected into this case the issue of whether these attorney fees were reasonable and were for services beneficial to the estate. Production of the unredacted billing statements is necessary to the fair and truthful resolution of that issue, and insomuch as the billing statements come within the attorney-client privilege, that privilege is impliedly waived. Therefore, we affirm the trial court's judgment in part and reverse it in part.

¶ 3 I. BACKGROUND

¶ 4 A. Wyverne A. Blickenstaff's Surviving Offspring

¶ 5 Wyverne A. Blickenstaff (decedent) died in January 2006. A daughter and four sons survived him: Gaylene J. Evans, Todd A. Blickenstaff, the two petitioners, and the executor.

¶ 6 B. The Decedent's Will

¶ 7 The decedent left a will, dated October 21, 2004. In his will, the decedent named Jon M. Blickenstaff to be the executor and also bequeathed to him, individually, enough stock in Blickenstaff Farming Corporation to make him the owner of 67% of the voting shares. The decedent bequeathed the remaining shares and the residue of his estate equally to all five children.

¶ 8 In March 2006, the trial court admitted the will to probate and, in accordance with the will, appointed Jon M. Blickenstaff as executor.

¶ 9 C. The Petition Contesting the Will

¶ 10 In September 2006, petitioners as well as Todd A. Blickenstaff filed a petition contesting the will. The petition alleged, on information and belief, that the decedent had lacked the requisite mental capacity to make the will and that Jon M. Blickenstaff had exerted undue influence over him.

¶ 11 D. The Subpoena Duces Tecum

¶ 12 In March 2010, petitioners obtained the issuance of a subpoena duces tecum, which they caused to be served on the executor, Jon M. Blickenstaff. The subpoena sought documents "pertaining to the Estate of Wyverne A. Blickenstaff," including the following:

"3. Copies of all checks, bank statements, records of accounts, bills paid and bills due from the opening of the Estate to date.

4. All records relating to the Blickenstaff Farm [sic] Corporation including checks, receipts, bank statements, paid bills and any other financial information."

¶ 13 In April 2010, the executor moved to quash this subpoena. He offered two reasons for quashing the subpoena: (1) discovery in the will contest had closed; and (2) the documentation that the subpoena sought was irrelevant to the issue of whether the will was valid-which, at the time, was the only issue framed by the pleadings.

¶ 14 Petitioners explained, however, that, instead of seeking the documentation for purposes of the will contest, they were merely exercising their statutory right to inspect the books of account of the decedent. See 755 ILCS 5/19-3 (West 2010).

¶ 15 In May 2010, the trial court denied the executor's motion to quash the subpoena duces tecum.

¶ 16 E. The Petition To Remove Jon M. Blickenstaff From the Executorship

ΒΆ 17 In May 2011, petitioners filed a petition to remove Jon M. Blickenstaff from the position of executor of the decedent's will. In their petition, they ...


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