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Danhauer v. Danhauer

Court of Appeals of Illinois, First District, First Division

December 2, 2013

DANIEL A. DANHAUER and DEBORAH L. SUPIS, as Executors of the Estate of Daniel J. Danhauer, Deceased, Petitioners-Appellants,
JEANNE NEWTON DANHAUER, Respondent-Appellee.

Held [*]

In an action arising from a dispute between decedent’s children by his first wife and his second wife as to who should receive his individual retirement account, the trial court properly denied the children’s motion for substitution of judge for cause, since their allegations did not constitute “cause” for purposes of section 2-1001(a)(3) of the Code of Civil Procedure, parol evidence related to a change in the beneficiary of the account in the course of a merger of the account holder with another brokerage and the second wife’s later use of her authority as power of attorney to correct the alleged “mistake” was properly admitted in evidence, and the testimony of one of decedent’s sons was found inadmissible under the Dead-Man’s Act; however the entry of summary judgment for decedent’s second wife was reversed and the cause was remanded for further proceedings on the ground that a genuine issue of material fact existed as to whether decedent intended to change the beneficiary or a mistake was made by the account holder.

Appeal from the Circuit Court of Cook County, No. 10-P-003455; the Hon. James G. Riley, Judge, presiding.

David A. Novoselsky and Edward J. Stawicki, both of Novoselsky Law Offices, of Chicago, for appellants.

Clarke M. Gillespie III, of Kubasiak, Fylstra, Thorpe & Rotunno PC, of Chicago, for appellee.

JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Cunningham and Delort concurred in the judgment and opinion.



¶ 1 The petitioners, Daniel A. Danhauer and Deborah L. Supis, as executors of the estate of Daniel J. Danhauer, deceased, appeal the circuit court order which denied their petition to substitute the judge under section 2-1001(a)(3) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1001(a)(3) (West 2012)) and granted summary judgment under section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2012)) in favor of the respondent, Jeanne Newton Danhauer. On appeal, the petitioners argue that the circuit court erred when it: (1) denied their petition for substitution of judge for cause; (2) determined that the 2008 beneficiary designation form was ambiguous and admitted parol evidence; and (3) refused to allow Daniel A. Danhauer to testify during the hearing on the respondent's motion regarding statements made by the decedent. For the following reasons, we affirm in part and reverse in part.

¶ 2 On July 8, 2010, the petitioners filed for probate of the 2004 will of Daniel J. Danhauer, stating the following facts. On February 19, 2010, at the age of 84, Daniel J. Danhauer died from a failure to thrive and advanced dementia. According to the death certificate, the decedent failed to thrive for several months before his death and had suffered from advanced dementia for several years before his death. The decedent's heirs included five children from his first marriage: Susan M. Clark, Kathleen A. Jacobs, Sandra L. Fuelts, and the petitioners; and his second wife, the respondent, whom he married in 1994 following the death of his first wife two years earlier.

¶ 3 The petition states that the decedent left a pour-over will, dated June 3, 2004, which provides that the estate's assets pour over into the Daniel J. Danhauer Trust under trust authority dated November 15, 1991. The decedent's children are named beneficiaries of the trust, but the respondent is not. According to the petition, five months before his death, on September 17, 2009, the decedent signed a second will, an amendment to the trust, and documents assigning power of attorney (POA) for health care and property to the respondent. The beneficiaries of the trust remained unchanged.

¶ 4 According to the petition, on January 21, 2010, the decedent's physician, Dr. Laura Saelinger-Shafer, wrote a letter to the respondent stating that the decedent's dementia had rapidly progressed over the past year, leaving him with impaired memory and judgment, and that he was no longer competent to make financial decisions.

¶ 5 The petitioners further allege that, on February 18, 2010, the day before the decedent died, the respondent signed, as POA, a beneficiary form on the decedent's individual retirement account (IRA) held at Morgan Stanley Smith Barney (Morgan Stanley), worth approximately $110, 000. The 2010 beneficiary form changed the beneficiary from the decedent's trust to the respondent.

¶ 6 On February 23, 2010, the respondent filed a petition to admit the 2009 will for probate. On December 8, 2010, the circuit court admitted the 2009 will and issued letters of office naming the petitioners supervised co-executors of the decedent's estate.

¶ 7 On March 24, 2011, the petitioners requested that the court issue citations to several financial and medical institutions because they believed that the respondent had unlawfully withdrawn assets from the estate. Morgan Stanley filed more than one motion for leave to file an interpleader complaint and for declaratory judgment, seeking to determine the proper beneficiary to the IRA account. However, the trial court denied Morgan Stanley's motions.

ΒΆ 8 On April 10, 2012, the respondent filed a "Petition for Turnover Order of IRA Account Funds, " alleging the following. In 2002, the decedent named the respondent beneficiary to his IRA account, which was held at Smith Barney at that time. On September 7, 2007, upon Smith Barney's merger with Citibank, the decedent was required to complete a new beneficiary designation form in which he again named the respondent as the beneficiary. In November 2008, upon Citi Smith Barney's merger with Morgan Stanley, the decedent was again required to complete new beneficiary paperwork. According to the petition, the decedent instructed his financial advisor, Mark Ratay, and Ratay's assistant, Chastity Peterson, to transfer his accounts, including the IRA, without making any changes to his listed beneficiaries. As of that date, the trust was the named beneficiary on the decedent's accounts, except the IRA, which listed the respondent as beneficiary. The petition further alleges that Ratay and Peterson made a mistake and changed the beneficiary on the IRA account from the respondent to the trust. On February 4, 2010, the respondent provided Peterson with her POA documents. On February 18, 2010, ...

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