Galloni v. Barry (In re Barry)

538 B.R. 739, 2015 Bankr. LEXIS 3454, 61 Bankr. Ct. Dec. (CRR) 173
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedOctober 9, 2015
DocketBankruptcy Case No. 13-38329; Adversary Case No. 14-00034
StatusPublished
Cited by1 cases

This text of 538 B.R. 739 (Galloni v. Barry (In re Barry)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Galloni v. Barry (In re Barry), 538 B.R. 739, 2015 Bankr. LEXIS 3454, 61 Bankr. Ct. Dec. (CRR) 173 (Ill. 2015).

Opinion

MEMORANDUM OPINION

Janet S. Baer, Bankruptcy Judge

Joan Galloni (the “Plaintiff’) filed an adversary complaint in the bankruptcy case of Kevin J. Barry (the “Debtor”), seeking a determination that a judgment debt owed to her by the Debtor and the Barry Law Group, P.C. (the “Barry Law Group”) is not dischargeable pursuant to 11 U.S.C. §§ 523(a)(4) and (a)(6).1 According to the Plaintiff, the debt should be excepted from discharge based on the Debtor’s purported misconduct in connection with the preparation and execution of a will under which the Plaintiff was named as a beneficiary. For the reasons set forth below, the Court finds in favor of the Plaintiff and against the Debtor and the Barry Law Group (together, the “Defendants”) and holds that the judgment debt is nondischargeable under both §§ 523(a)(4) and (a)(6).

JURISDICTION

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. This is a core proceeding under 28 U.S.C. §§ 157(b)(2)(A) and (I).

BACKGROUND

The pertinent facts are drawn from the parties’ pleadings, the exhibits attached thereto, and the Court’s docket, as well as the testimony and various exhibits received into evidence at a bench trial that was held on June 8, 2015. At that trial, the Debtor admitted many of the facts that he had initially denied in his answer. Thus, virtually all of the material facts alleged in the complaint are uncontested. Those facts are as follows.

The Debtor, an attorney and the principal owner/shareholder of the Barry Law Group, has been licensed to practice law in the state of Illinois since November 1994.2 (Answer ¶ 1; Trial Tr.' morning session (“Trial Tr. 1”), 9:4-13; Trial Tr. afternoon session (“Trial Tr. 2”), 5:7-9.) He concen[743]*743trates his practice in the areas of estate planning, probate, and real estate and has prepared more than one hundred wills in the last twenty years. (Trial Tr. 1, 9:25-10:6; Trial Tr. 2, 5:7-20.)

On February 22, 2011, the Debtor was retained by Josephine Wilke (“Wilke”), the Plaintiffs first cousin, to prepare various legal documents, including her last will and testament, a durable power of attorney, and an amendment to a .land trust agreement. (Answer ¶¶ 2, 7; Trial Tr. 1, 9:18— 24, 17:1-11; Trial Tr. 2, 18:3-6, 23:5-12.) Their initial meeting took place at the Smith Village senior center in Chicago (“Smith Village”), where Wilke was rehabilitating after having fallen and broken her hip. (Trial Tr. 1, 19:4-22; Trial Tr. 2, 19:7-10.) During that meeting, the Debtor spoke with Wilke for about forty-five minutes, ensuring that she was competent to execute the documents that he was being asked to prepare and making the relevant inquiries as to her wishes with respect to the disposition of her property. (Trial Tr. 1, 19:23-20:7; 20:25-21:16; Trial Tr. 2, 23:3-4.) In particular, the Debtor learned that Wilke wanted to appoint the Plaintiff as the executor of her will, to donate a total of $15,000 to three different charities, and to leave the residue of her estate to the Plaintiff. (Trial Tr. 1, 22:19-23:4.) The Debtor also learned that Wilke’s closest living relative was her brother Frank Wilke (“Frank”) and that Wilke did not want Frank to receive anything under the will. (Id. at 20:8-16; 23:5-14.) Instead, Wilke told the Debtor, she had provided for her brother by naming him as a beneficiary of or joint owner on various accounts. (Id. at 23:15-23.)

Shortly after meeting with Wilke, the Debtor drafted a will pursuant to her stated wishes. (Answer ¶ 8; PL’s Ex. 2 ¶ 4.) Article 1 of the will confirmed that Wilke was not married and had no children. (Pl.’s Ex. 1; Trial Tr. 1, 28:16-18.) Article 2 addressed the gifts to the Plaintiff and the three charities. (PL’s Ex. 1; Trial Tr. 1, 28:19-29:6.) And Article 4 named the Plaintiff as the executor of the- estate. (PL’s Ex. 1; Trial Tr. 1, 29:7-10.)

On February 25, 2011, the Debtor returned to Smith Village for the execution of the will. (Answer ¶ 9.) The only people in the room at the time of the execution were Wilke, the Debtor, and the Plaintiff.3 (PL’s Ex. 2 ¶ 5; Trial Tr. 2, 26:8-12.) The Debtor reviewed the statements in the will with Wilke, confirmed that she understood them and that they reflected her wishes, and instructed her to sign the will, which she proceeded to do. (Answer ¶ 11; Trial Tr. 1, 31:10-15; Trial Tr. 2, 27:7-11.)

. The signature page to the will included both a statement of certification and an affidavit. The Debtor knew that, pursuant to Illinois law, the signatures of at least two disinterested witnesses to Wilke’s signing of the will were needed under each. (Answer ¶ 13; Trial Tr. 1, 31:18— 32:4, 42:4-9; see also PL’s Ex. 1 at 6.) The certification provided as follows:

The testator, JOSEPHINE V. WILKE, signed this Will in our presence on the date it bears. Immediately thereafter, at the testator’s request and in the testator’s presence and in the presence of each other, we signed our names as witnesses. We certify that we believed the testator to be of sound mind and memory at the time of signing.

[744]*744(PL’s Ex. 1 at 6.) The affidavit provided, in turn, as follows:

We, the undersigned, being the attesting witnesses to the Will of JOSEPHINE V. WILKE, being first duly sworn, depose and state: (a) that each of us was present and saw the testator sign the Will, of which this Affidavit is a part, in our presence!;] (b) that the Will was attested by each of us in the presence of the testator, and in the presence of each other; and [(c)] that at the time the testator signed the Will, of which this Affidavit is a part, each of us believed the testator to be of full age and sound mind and memory, and acting voluntarily and not under duress or constraint of any kind.

(Id.) The Debtor signed his name under each paragraph as the first of the two witnesses to the will. (Answer ¶ 14; Trial Tr. 42:10-12; see PL’s Ex. 1 at 6.) He also signed the name of a second witness, Timothy Murphy (“Murphy”), in both places on the signature page. (Answer ¶ 15; Trial Tr. 1, 32:18-20, 34:16-35:1.) Murphy is a construction manager who co-owned a building with the Debtor. (Trial Tr. 1, 41:19-20.) He was neither present, nor did he witness the execution of Wilke’s will or sign the document. (Id., 32:14-20, 35:3-7.)

The Debtor admits that he signed Murphy’s name to the signature page, but there is disagreement as to when this occurred. The Plaintiff testified that the signature page was already completed when the Debtor came to Smith Village and that the Debtor said to Wilke, “I’ve already got the witnesses’ signatures to expedite things.” (Trial Tr. 2, 24:2-25:11.) The Debtor categorically denied that the signature page had been prepared ahead of time. (Trial Tr. 1, 40:119; Trial Tr. 2, 49:14-22.) Rather, the Debtor testified that he had made arrangements for Murphy to meet him at Smith Village but that Murphy had failed to come. (Trial Tr.

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Cite This Page — Counsel Stack

Bluebook (online)
538 B.R. 739, 2015 Bankr. LEXIS 3454, 61 Bankr. Ct. Dec. (CRR) 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galloni-v-barry-in-re-barry-ilnb-2015.