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In re Estate of Mondfrans

Court of Appeals of Illinois, Second District

March 20, 2014

In re ESTATE of JEAN MONDFRANS Conard Mondfrans, as Administrator of the Estate of Harry Mondfrans, Petitioner-Appellant,
v.
John Collins, as Executor of the Estate of Jean Mondfrans, Respondent-Appellee.

Appeal from the Circuit Court of Kane County. No. 11-P-634. Honorable David R. Akemann, Judge, Presiding.

Affirmed.

SYLLABUS

In estate proceedings where a petition to renounce decedent's will was filed on behalf of decedent's spouse, an incompetent who was living in an assisted living facility, the trial court's dismissal of the petition was upheld on appeal, notwithstanding the fact that the spouse was not sent notice of the probate of his wife's will, since decedent's spouse died less than two months after the will was admitted to probate, no one notified the executor of decedent's estate that a guardian had been appointed for her spouse in a separate proceeding, under the circumstances, there was no one decedent could notify of the probate proceedings, there was no indication of any concealment of the probate proceedings, and even if decedent's will had been renounced in a timely manner, the right to renounce, which is intended to provide for a surviving spouse during his or her lifetime, ceased upon the death of decedent's spouse.

James C. James III, of Alschuler, Simantz & Hem, LLC, of Aurora, for appellant.

Richard D. Skelton, of R.D. Skelton Ltd., of Geneva, for appellee.

PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices McLaren and Schostok concurred in the judgment and opinion.

OPINION

BURKE, PRESIDING JUSTICE

Page 2

[¶1] Jean Mondfrans passed away, leaving a will that did not include any provisions for her husband, Harry Mondfrans, who was suffering from dementia and residing in an assisted living facility. When Jean's will was admitted to probate, no notice was sent to Harry, and he died less than two months later.

[¶2] Conard Mondfrans, Harry's son, served as his conservator in the probate proceedings on Jean's will and as the administrator of his estate. Conard petitioned to renounce Jean's will under section 2-8 of the Probate Act of 1975 (755 ILCS 5/2-8 (West 2012)). John Collins, the executor of Jean's estate, objected on the ground that the petition was filed after Harry's death and more than seven months after the admission of Jean's will to probate. The trial court sustained the objection and dismissed the petition with prejudice as untimely.

[¶3] Conard appeals, arguing that the seven-month limitations period for petitioning to renounce a will should not apply and that Harry's right to renounce Jean's will should survive his death, because Jean's representatives engaged in " active concealment" of the probate proceedings. We affirm. We conclude that, under the undisputed facts of this case, (1) there was no concealment of the proceedings and (2) Harry's statutory right to renounce Jean's will abated upon his death, because the right is purely personal and not intended to benefit Harry's heirs contrary to Jean's intent. Even if Harry or Conard had petitioned to renounce the will while he was alive, his right to renounce would have abated upon his death, because there was no concealment.

[¶4] I. BACKGROUND

[¶5] The parties do not dispute the salient facts. Jean and Harry were married for 44 years, and each had three adult children from prior marriages. Jean's children, Steven, Randall, and Thomas, resided in the western suburbs of Chicago. Harry's children, Conard, Jan, and Scott, resided in California.

[¶6] In November 2006, Harry was moved to an assisted living facility because he suffered from worsening dementia and needed around-the-clock supervision. Jean visited Harry daily and managed his

Page 3

health care and living arrangements. On August 22, 2008, Jean executed a will that did not include any provisions for Harry. The will stated that Harry was disabled but with sufficient personal assets to maintain his care.

[¶7] Jean died unexpectedly on September 28, 2011, at the age of 76. Harry was almost 91 years old and suffering from Lewy body dementia, diabetes, atrial fibrillation, and osteoarthritis. Harry was mentally incompetent and unable to care for himself. After Jean died, Harry's children considered moving him to California but decided that his assisted living facility was providing good care and that Harry should remain there.

[¶8] On October 30, 2011, Randall, Jean's son, contacted Jan, Harry's daughter, by email and told her that probate proceedings would be opened for Jean's estate. Randall suggested that Jan arrange for the appointment of a guardian for Harry so proper notice could be delivered to someone acting on Harry's behalf. Jan replied ...


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