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In re Estate of Scherr

Court of Appeals of Illinois, Second District

June 28, 2017

In re ESTATE OF MARJORIE FRIEDMAN SCHERR, Deceased
v.
Julie L. Ehrlich, Joel L. Friedman, and Jeremy L. Friedman, as Heirs and Legatees of the Estate of Marjorie Friedman Scherr, Deceased, Respondents-Appellees. Lisa K. Scherr, as Trustee of the George H. Scherr Trust Dated March 14, 2002, Petitioner-Appellant,

         Appeal from the Circuit Court of Lake County. No. 16-P-3 Honorable Donna-Jo R. Vorderstrasse, Judge, Presiding.

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

          OPINION

          HUDSON PRESIDING JUSTICE.

         ¶ 1 I. INTRODUCTION

         ¶ 2 Petitioner, Lisa K. Scherr, as Trustee of the George H. Scherr Trust Dated March 14, 2002, appeals an order of the circuit court of Lake County. That order sustained an objection made by respondents, Julie L. Ehrlich, Joel L. Friedman, and Jeremy L. Friedman, to the renunciation of the will of Marjorie Friedman Scherr by her spouse, George H. Scherr (both are deceased). For the reasons that follow, we reverse and remand.

         ¶ 3 II. BACKGROUND

         ¶ 4 On September 5, 2015, Marjorie died. George filed a petition for probate and letters on January 5, 2016. The petition stated that Marjorie left a will dated August 14, 1970, which George believed to be her valid last will (the will was executed while Marjorie was married to her first husband, and respondents, Marjorie's children, were the sole surviving legatees under this will). He further averred that it had not been previously admitted to probate. The individuals listed in the will as executor and successor-executor had predeceased Marjorie, so George asked that petitioner, his daughter, be named executor. She was so appointed. The will made no provision for George. Respondents filed their appearances in February 2016.

         ¶ 5 On April 1, 2016, George filed a renunciation of the will. It stated, "The undersigned, George Scherr, surviving spouse of the above named decedent hereby renounces the will of the decedent which was admitted to probate in this Court on January 14, 2016." George died on May 23, 2016. A copy of the renunciation was sent to respondents' counsel on May 24, 2016. On June 23, 2016, respondents filed an objection to the renunciation. In it, they asserted the following: (1) respondents were not given notice of the filing of the renunciation, and it was only after George died that their attorney was provided with a copy of the renunciation; (2) the legislative purpose behind allowing a renunciation is to provide for a surviving spouse during that person's lifetime; and (3) this court recently stated that a renunciation abates upon the death of a surviving spouse, even if it was filed before that spouse's death (see In re Estate of Mondfrans, 2014 IL App (2d) 130205, ¶ 3). Subsequently, respondents also asserted that petitioner lacked standing to assert George's renunciation, as that right was personal to him. Petitioner responded by offering an assignment to the trust, executed by George, of his interest in Marjorie's estate.

         ¶ 6 Following a hearing, the trial court sustained respondents' objection to the renunciation. It first addressed petitioner's standing. Respondents complained that the assignment was not verified. Petitioner testified as to George's execution of the assignment and his capacity to do so. The trial court then found that the assignment was valid and transferred to the trust the "ability to enforce" the renunciation. The court then turned to the renunciation.

         ¶ 7 Respondents argued that George's renunciation abated at his death. Respondents acknowledged that no Illinois case holds that a renunciation abates at death. However, they pointed to dicta in Mondfrans, id., that did so state. Further, respondents pointed to Illinois public policy, which indicates that a renunciation's sole purpose is to provide for a surviving spouse after the death of the decedent spouse. Petitioner responded that George had complied with the "very simple requirements of the statute" and that Mondfrans was factually inapposite. According to petitioner, since George complied with the statute in its entirety, his subsequent death had no bearing on the validity of the renunciation.

         ¶ 8 The trial court began its ruling by acknowledging that there was "no case in Illinois that [had] exactly these facts." The trial court noted the Illinois public policy that a renunciation is for the benefit of the surviving spouse and that the interests of any heirs of that spouse are irrelevant. The trial court rejected petitioner's position that filing is sufficient to complete the renunciation. It explained that it hears "objections to renunciations all the time, " based on issues like premarital agreements or divorce decrees. It then reasoned, "So renunciation still has to be approved by the court." The trial court acknowledged that its position "raises the issue [of] how long does one have to survive for a renunciation to take effect." However, it emphasized that this was not at issue here. Rather, in this case, the renunciation had not come before the trial court and "was not approved yet." Further, George died "shortly after the renunciation" and it would not benefit him. Accordingly, the trial court concluded that allowing the renunciation would violate public policy and it sustained the objection. This appeal followed.

         ¶ 9 III. ANALYSIS

         ¶ 10 On appeal, petitioner argues that the trial court erred in sustaining respondents' objection. She primarily relies on the plain language of section 2-8 of the Probate Act of 1975 (Act) (755 ILCS 5/2-8 (West 2016)). Respondents raise three arguments in opposition. First, they contend that the policy underlying the statute indicates that the right to renounce abates on the death of the renouncing spouse. Second, they contend that any action that is a creation of statute abates on the death of ...


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