In re Estate of Butts

2026 IL App (2d) 240506-U

• Court: Appellate Court of Illinois
• Decided: February 6, 2026
• Docket: 2-24-0506
• Status: Unpublished

Opinion

2026 IL App (2d) 240506-U Nos. 2-24-0506, 2-24-0510, 2-24-0615, 2-24-0617 cons. Order filed February 6, 2026

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re ESTATE OF THOMAS A. BUTTS, ) Appeal from the Circuit Court Deceased ) of Kane County. ) ) Nos. 21-MR-1476 ) 21-P-383 ) (Rose Ellen May, Plaintiff-Appellee v. ) Honorable Allen Butts and Steven Butts, Defendants- ) Joseph M. Grady, Appellants). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE MULLEN delivered the judgment of the court. Justices Hutchinson and Birkett concurred in the judgment.

ORDER

¶1 Held: (1) The trial court’s finding that decedent’s will was invalid was immaterial to issues raised in plaintiff’s complaint and therefore did not impact jurisdiction of the trial court; (2) the trial court’s finding that plaintiff proved by clear and convincing evidence the existence of an oral contract to make a will pursuant to which decedent would leave assets to plaintiff was not against the manifest weight of the evidence; (3) the trial court did not err in striking defendants’ first affirmative defense and dismissing a corresponding counterclaim, which were based on section 4-6(a) of the Probate Act of 1975 (755 ILCS 5/4-6(a) (West 2020)); but (4) the trial court erred in striking defendants’ second affirmative defense and dismissing a corresponding counterclaim, which were based on the Third Party Beneficiary Contract Act (755 ILCS 30/0.01 et seq. (West 2020)).

¶2 I. INTRODUCTION 2026 IL App (2d) 240506-U

¶3 These consolidated appeals arise out of a dispute as to the distribution of the assets of

decedent, Thomas A. Butts. At the time of his death, decedent had been in a long-term, non-marital

relationship with plaintiff, Rose Ellen May. In addition, decedent was survived by his father,

defendant Allen Butts (Allen), and his brothers, Michael Butts (Michael) and defendant Steven

Butts (Steven). 1

¶4 Following decedent’s death, Allen opened a probate case in the circuit court of Kane

County. Plaintiff subsequently filed a two-count complaint for declaratory judgment and other

relief in the same court, which she later amended. At issue in both the probate case and the

declaratory judgment action are a written document captioned as the “Last Will and Testament of

Thomas A. Butts” and a purported oral contract to make a will between plaintiff and decedent.

Plaintiff alleged that, pursuant to her oral contract with decedent, he agreed to leave her his assets

upon his death and to disinherit his brothers. Decedent’s assets included certain investment and

retirement accounts (referred to as the “Edward Jones accounts”), of which decedent had named

Allen as the sole surviving transfer-on-death beneficiary. Defendants filed two affirmative

defenses to plaintiff’s complaint and Allen also filed a counterclaim. On plaintiff’s motion, the

trial court struck the affirmative defenses and dismissed the counterclaim with prejudice pursuant

to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2020)). During

the hearing on the motion to strike and dismiss, the trial court indicated that the written document

submitted as decedent’s will is invalid.

1 Michael died on January 14, 2023, during the pendency of this case. Allen passed away on October

15, 2025, during the pendency of this appeal. Following Allen’s death, Steven was substituted as special

representative of Allen, individually and as administrator of decedent’s estate.

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¶5 Following a bench trial in the probate case and the declaratory judgment action, the trial

court determined that decedent had entered into an agreement with plaintiff to leave all his assets

to her. As such, the court entered an order awarding plaintiff the assets of decedent’s estate and

imposing a constructive trust for her benefit on the probate assets as well as the Edward Jones

accounts. Defendants appeal, arguing that (1) the trial court lacked jurisdiction to declare

decedent’s will invalid; (2) the trial court’s judgment in favor of plaintiff on her amended

complaint was against the manifest weight of the evidence; and (3) the trial court erred in striking

their affirmative defenses and dismissing Allen’s counterclaim with prejudice. For the reasons set

forth below, we agree that the trial court erred in striking defendants’ second affirmative defense

and a counterclaim by Allen that corresponded to the second affirmative defense. As such, we

affirm in part, reverse in part, and remand for further proceedings.

¶6 II. BACKGROUND

¶7 Decedent died unexpectedly on March 9, 2021, when the motorcycle he was operating was

struck by an automobile. At the time of his death, decedent was 57 years of age. He was survived

by his father (Allen), his two brothers (Steven and Michael), and his significant other (plaintiff).

Palma Butts (Palma), decedent’s mother and Allen’s wife, passed away prior to decedent.

¶8 A. Probate Case (21-P-383)

¶9 Allen, believing decedent passed away without a will, filed a petition for letters of

administration on June 15, 2021, in the circuit court of Kane County, certifying that decedent had

died intestate. This cause was assigned case No. 21-P-383. On June 18, 2021, the trial court entered

an order granting independent administration of decedent’s estate to Allen, as administrator.

¶ 10 On June 21, 2021, plaintiff filed in the circuit court of Kane County a document dated

November 12, 2020, entitled “Last Will and Testament of Thomas A. Butts” (decedent’s will).

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Plaintiff was one of two attesting witnesses to decedent’s will. Plaintiff then filed a petition for

probate of decedent’s will on July 19, 2021, which petition verified plaintiff’s belief that the will

was valid. Plaintiff’s petition was assigned case No. 21-P-460. Plaintiff took no further action to

admit decedent’s will to probate and the matter (21-P-460) was dismissed on September 13, 2022,

for want of prosecution.

¶ 11 Separately, on August 6, 2021, counsel for plaintiff entered an appearance in case No. 21-

P-383. On September 2, 2021, plaintiff filed various documents, including a petition to terminate

the independent administration of decedent’s estate and a motion to convert decedent’s estate to a

supervised estate. In response to plaintiff’s pleadings, the trial court converted decedent’s estate to

supervised administration and appointed Allen as the supervised administrator of the estate.

¶ 12 Claims were filed against decedent’s estate in the probate case on September 3, 2021, on

behalf of plaintiff (plaintiff’s claim) and on January 7, 2022, on behalf of Warbirds of North

America (Warbirds), a non-profit, section 501(c)(3) charitable organization (see 26 USC

§ 501(c)(3) (2020)) (the Warbirds claim). These claims sought to enforce what plaintiff called a

“Will Contract” and the interests of plaintiff and Warbirds in, among other things, the Edward

Jones accounts, which had been distributed to Allen.

¶ 13 Thereafter, on January 17, 2023, Allen filed a petition for probate of will and letters

testamentary in case No. 21-P-383, seeking to probate decedent’s will. Over plaintiff’s objection,

the trial court admitted decedent’s will to probate on January 19, 2023.

¶ 14 B. Declaratory Judgment Action (21-MR-1476)

¶ 15 Meanwhile, on August 24, 2021, plaintiff filed an action for declaratory judgment and other

relief against decedent’s estate and others in the circuit court of Kane County. Plaintiff’s complaint

was assigned case No. 21-MR-1476. In her complaint, plaintiff alleged that she and decedent had

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entered into a civil contract pursuant to which decedent agreed to leave plaintiff certain assets upon

his death and to disinherit Steven and Michael. The case was subsequently transferred to the judge

presiding over the probate case.

¶ 16 On September 14, 2022, plaintiff filed a verified amended complaint for declaratory

judgment and other relief against decedent’s estate, Allen (individually, as the administrator of

decedent’s estate, and as trustee of the Allen & Palma Butts Family Trust), Steven, and Michael.

In the amended complaint, plaintiff alleged as follows. Plaintiff and decedent lived together as a

couple for more than 20 years before his death. Plaintiff cared for decedent’s parents (Allen and

Palma), regularly acting as their medical advocate during doctor visits and hospital stays and

preparing dinner for Allen daily after Palma moved to a memory-care facility. Plaintiff and

decedent formed and operated Leading Edge Flight Services, Inc. (Leading Edge), an aviation

consulting company, of which decedent was the sole shareholder and president. Leading Edge

owned three aircraft, including a 1957 U.S. military aircraft that plaintiff and decedent worked to

restore. The income decedent generated from Leading Edge enabled him to invest in the Edward

Jones accounts. Plaintiff and decedent also formed Warbirds, the purpose of which was to generate

interest in vintage aircraft.

¶ 17 Plaintiff further alleged that by July 2014, decedent orally agreed that he would make a

will by which he would transfer to her all his assets, including his home, Leading Edge, and the

Edward Jones accounts. On November 12, 2020, following a “harrowing experience” in which

they almost lost control of an aircraft they were piloting together, decedent created and signed

decedent’s will using a do-it-yourself form from the internet. Decedent’s will included a schedule

of beneficiary designations specifying that if decedent predeceased plaintiff, plaintiff would inherit

the home, all household items and personal property, Leading Edge, and decedent’s automobiles.

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Decedent’s will designated Warbirds as the recipient of the Edward Jones accounts and plaintiff

as the recipient of Warbirds. Decedent’s will also included a “Disinherit Schedule,” wherein

decedent voiced his intention to disinherit his two brothers, Steven and Michael. Plaintiff created

and signed a “temporary will” on the same date.

¶ 18 Plaintiff additionally alleged that she made an appointment with an estate planning attorney

to prepare proper estate planning documents in accordance with the oral agreement, but decedent

unexpectedly died before those documents could be drafted. Further, between November 2020 and

March 2021, she and decedent had multiple conversations with Sheldon Clark, their investment

advisor at Edward Jones, about designating the death beneficiary on the Edward Jones accounts in

accordance with the oral agreement. Although Clark agreed to send them paperwork to effectuate

those changes, he never did so. Soon after decedent’s death, plaintiff emailed Clark, advising him

that she had a claim to the assets in the Edward Jones accounts and instructing him to retain the

assets until a court order could be obtained determining the rightful owner thereof. Nevertheless,

Edward Jones distributed the accounts to Allen, apparently under a previous death-beneficiary

designation by decedent. Plaintiff claimed that the assets previously held in the Edward Jones

accounts were being held in an account under Allen’s name, the death beneficiaries of which are

Michael and Steven or the Butts Family Trust for the benefit of Michael and Steven.

¶ 19 In count I of her complaint, plaintiff sought a declaration that decedent’s alleged agreement

to create a will was enforceable against decedent’s estate and that she was entitled to ownership of

all probate assets in decedent’s estate, as well as all assets previously held in the Edward Jones

accounts, which had been distributed to Allen under the death-beneficiary designation. In count II,

plaintiff sought the imposition of a constructive trust on all probate assets in decedent’s estate and

all assets previously held in the Edward Jones accounts under a theory of unjust enrichment.

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¶ 20 On October 7, 2022, Allen (individually and as supervised administrator of decedent’s

estate), Michael, and Steven filed a verified answer and affirmative defenses to the amended

complaint, denying that decedent had orally agreed to make a will transferring all his assets to

plaintiff. Allen (individually and as supervised administrator of decedent’s estate) also filed a

verified counterclaim for declaratory and other relief against plaintiff. Both filings, which were

later amended, asserted that: (1) decedent’s will is valid, but that since plaintiff witnessed

decedent’s will, her beneficial interest thereunder is void under section 4-6 of the Probate Act of

1975 (Probate Act) (755 ILCS 5/4-6 (West 2020)) (first affirmative defense and corresponding

counterclaim); and (2) the Edward Jones accounts are non-probate assets based on decedent’s

designation of Allen as the primary beneficiary and, pursuant to section one of the Third Party

Beneficiary Contract Act (755 ILCS 30/1 (West 2020)), cannot be defeated by plaintiff’s claim of

a contract to make a will or unjust enrichment (second affirmative defense and corresponding

counterclaim). On December 7, 2022, plaintiff moved to strike the affirmative defenses and

dismiss the counterclaim pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2020)).

Plaintiff essentially asserted that both statutory provisions cited by defendants in their affirmative

defenses and Allen in his counterclaim are inapplicable and that neither statute operates to defeat

her causes of action.

¶ 21 Following a hearing on May 16, 2023, the trial court, with little explanation, granted

plaintiff’s motion, struck defendants’ affirmative defenses, and dismissed Allen’s counterclaim

with prejudice pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2020)). In making

the ruling, the court stated that it was “not sure [decedent’s will] is a valid will,” but that “it is

evidence of a contract for a will.” Defense counsel sought clarification of the trial court’s ruling,

asking the court “are you ruling today that it is your position that the decedent’s will that’s been

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admitted to the probate [sic] is not a valid will?” The trial court responded in the affirmative. The

court’s ruling was memorialized in a written order dated May 22, 2023.

¶ 22 C. Bench Trial

¶ 23 Following discovery, these matters proceeded to a bench trial on January 16, 2024. The

same day, plaintiff purported to withdraw the Warbirds claim “on behalf of Warbirds” (plaintiff

and Warbirds were represented by the same counsel). The following evidence and testimony were

presented.

¶ 24 1. Decedent’s Relationship with Plaintiff and the Alleged Contract for Will

¶ 25 Plaintiff testified that she is 52 years of age and resides in Hampshire, in the home that was

owned by decedent. Plaintiff is employed by Microsoft, where she has worked for the past 10

years. Plaintiff met decedent in January 2001, and they began living together a few months later.

Decedent traveled frequently, but was at home in the early years of his relationship with plaintiff.

In 2002 or 2003, decedent decided that he wanted to learn how to fly airplanes, so he became

certified. In 2003, decedent bought his first plane, a Warrior. Also in 2003, plaintiff and decedent

created Leading Edge to limit decedent’s liability due to his ownership of the plane. Initially, the

income generated by Leading Edge was from the lease of the Warrior to a flight school. In 2005,

plaintiff and decedent bought another plane, a 1957 T-28, and created Warbirds to help manage its

restoration.

¶ 26 Around 2010, decedent left his job and began working for himself through Leading Edge,

which became a consulting company. Decedent did the consulting, while plaintiff performed tasks

such as payroll and invoicing. Plaintiff was not compensated for her work at Leading Edge.

¶ 27 According to plaintiff, she and decedent “made provisions” to leave their assets to each

other and agreed that each “provided certain things to the other in life.” Her part of the agreement

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was to take care of the business of Leading Edge and Warbirds, provide meals for Allen on a

regular basis, and help decedent with medical care and advocacy for his parents. In addition,

plaintiff agreed to change the beneficiaries on her life insurance policies and to make decedent the

primary beneficiary on her 401(k) and Fidelity account. In 2016, plaintiff added decedent to her

employer’s health plan as a domestic partner. Plaintiff testified that she and decedent intended to

create wills and trusts that would benefit each other and that they made this agreement at least by

2014, based on her recollection of certain events, including that decedent’s mother Palma, who

had Alzheimer’s disease, moved into a memory-care facility. Plaintiff testified that estate planning

documents reflecting this agreement were not prepared in this timeframe because decedent

procrastinated a lot and he was gone from Sunday afternoon through Friday night, with very few

exceptions.

¶ 28 Plaintiff testified that she and decedent would visit Palma at the memory-care facility on

Saturday evenings. She would also attend quarterly meetings with the staff that decedent could not

attend because he was out of town, she would chat with the director of the facility about once a

month, and she would regularly communicate with the staff to advise them what decedent wanted.

Plaintiff further testified that in the time frame 2014 to 2021, she provided meals to Allen almost

every day, took him to doctor appointments when her schedule allowed, stayed with him for

outpatient visits, visited him every day during in-patient stays, and helped him select Medicare

plans.

¶ 29 Plaintiff testified that her own mother had health conditions and that she would frequently

leave her mother’s early to make dinner for Allen. During this time, plaintiff wanted to move to

Texas because she “hated Illinois,” she did not care for the weather or political climate, and

decedent was already in Texas every week. Plaintiff’s mother died in 2017, and plaintiff had

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applied, and interviewed for, another position at Microsoft in Texas. However, she withdrew her

application once she discussed the situation with decedent, who thought they needed to stay around

longer because Allen had been diagnosed with cancer. Plaintiff testified that the situation affected

her decision to not take the job in Texas, which would have provided her a higher salary and

opportunities for advancement.

¶ 30 2. Decedent’s Will

¶ 31 Plaintiff testified that in November 2020, she and decedent were flying from De Kalb to

Tennessee in a plane decedent was piloting when they encountered dense fog while approaching

the airport. All the “terrain alerts” went off, and decedent had to climb approximately 7,000 feet

to clear the clouds. Plaintiff testified that she was “terrified” and that she told decedent they needed

wills and powers of attorney in case one of them died or needed care. Within hours, she and

decedent created wills from the internet, including decedent’s will.

¶ 32 Plaintiff testified that both she and decedent intended their wills to be, and believed them

to be, valid wills. Plaintiff’s position on decedent’s will is that she is entitled to all of decedent’s

assets, including the Edward Jones accounts, but not a $100,000 life insurance policy to Allen.

Nevertheless, she acknowledged the beneficiary schedule in decedent’s will called for Warbirds

to receive 100% of the Edward Jones accounts and that it was expressly designated as a “charitable

gift.” When pressed on the issue and reminded of the contents of decedent’s will, plaintiff testified

that decedent did not want the funds to go to Warbirds, but that decedent wanted her to have the

assets to finish the plane restoration project, and that because she, her brother, and her uncle

constituted the board of Warbirds, they essentially controlled the flow of funds from Warbirds.

¶ 33 Gary Heath met decedent in 2016 or 2017, and they became friends and workout partners.

Heath described plaintiff’s and decedent’s relationship as “a marriage, a commitment to one

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another.” Heath testified that decedent told him that when he (decedent) was working out of town,

plaintiff “was taking Allen to the doctors and making sure he had the right food and cooking for

him.” Heath stated that plaintiff “was willing to do all the work she did, on top of her job and on

top of keeping the house *** together.” Heath initially testified that decedent never told him that

he had prepared a will. Heath later acknowledged that decedent did tell him that he had a will.

Heath agreed that if decedent did prepare a will, it would evidence his intentions. Heath testified

that decedent told him that he wanted plaintiff “to have everything that he owned.”

¶ 34 Eva Schweitzer is married to plaintiff’s uncle and has known plaintiff since 1982.

Schweitzer met decedent in 2000 or 2001. Schweitzer testified that decedent and plaintiff were

close and “appeared to be a very loving couple.” Schweitzer testified that plaintiff researched and

found a memory-care facility for Palma. Further, plaintiff recommended a nephrologist for Allen,

found a cleaning service to care for Allen’s home, prepared meals for Allen, ensured Allen arrived

to his medical appointments, and checked in on Allen when decedent was traveling. Schweitzer

testified that decedent and plaintiff postponed moving to take care of decedent’s parents.

Schweitzer testified that decedent was appreciative of the things that plaintiff did for his parents,

but she did not know how much actual time plaintiff devoted to the care of Palma and Allen.

¶ 35 Schweitzer recalled talking with plaintiff and decedent about an “internet will” after

decedent and plaintiff had a bad flying experience and that “basically” they were leaving each

other everything, that decedent did not want his brothers to get anything, and that decedent wanted

to leave Allen an insurance policy. Schweitzer agreed that regardless of whether the wills followed

the gist of what decedent and plaintiff had discussed with her, she believed they wanted the wills

enforced, as written, even where the wills made dispositions other than to each other.

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¶ 36 Margaret Franck is plaintiff’s long-time friend. Franck testified that she met decedent in

2001, shortly after decedent and plaintiff began dating. Asked to what extent she would

characterize decedent’s and plaintiff’s relationship as “devoted,” Franck responded “very much

so.” Franck testified that in November 2020, plaintiff called her the day after she and decedent had

a frightening flying experience and told her that the two of them used an internet program to

prepare wills. Franck saw the wills because plaintiff emailed them to her. Franck testified that

plaintiff told her that she (plaintiff) and decedent agreed to leave each other their property and

estates, but Franck agreed that she believed their actual intentions were set forth in their respective

wills.

¶ 37 Allen admitted that decedent did not discuss his estate plan or assets with him.

Nevertheless, Allen believed that if decedent prepared and signed a will, the contents of the will

would evidence decedent’s intent. Allen reviewed the beneficiary schedule on decedent’s will and

agreed that not everything bequeathed in decedent’s will was to go to plaintiff, just as not

everything in plaintiff’s will would have been bequeathed to decedent.

¶ 38 3. Edward Jones Accounts

¶ 39 Sheldon Clark is a financial advisor at Edward Jones. Decedent, plaintiff, and Allen were

all clients of Clark. Clark testified that decedent never told him that he planned to give his estate

to plaintiff. Further, decedent never asked Clark to prepare any beneficiary forms to accomplish

that.

¶ 40 Clark testified that the transfer-on-death beneficiaries for decedent’s Edward Jones

investment and IRA accounts were Allen and Palma, which is reflected in beneficiary-designation

forms dated October 8, 2014, and August 29, 2017, respectively. Clark did not recall decedent ever

requesting to change his beneficiaries to plaintiff. But, he stated, if decedent had made such a

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request, it would have been done because it is a simple process. Clark further testified that he could

not recall having a conversation with decedent about naming Warbirds as a beneficiary under either

his Edward Jones brokerage account or his Edward Jones IRA account.

¶ 41 Plaintiff testified that between what happened in Tennessee in November 2020 and

decedent’s accident in March 2021, she and decedent made multiple calls to Clark to have the

death beneficiary on the Edward Jones accounts changed to her. Plaintiff also recalled a luncheon

in May 2018, where she told Clark that she “still needed the beneficiary form,” to which Clark

responded, “Oh boy, yes. We need to take care of that. [Decedent] definitely doesn’t want his

brothers to inherit anything from him.”

¶ 42 4. Further Attempts at Estate Planning

¶ 43 Plaintiff testified that through her employment benefits, she obtained a list of estate-

planning attorneys. The morning of decedent’s accident, plaintiff contacted an estate-planning

attorney from the list to schedule an appointment for their estate plan. However, decedent passed

away before she and plaintiff could meet with the estate-planning attorney.

¶ 44 5. Decedent’s and Plaintiff’s Relationship with Allen

¶ 45 At the time of trial, Allen was 85 years of age. Allen testified that decedent was a devoted

son, he loved decedent, he and decedent had a very close relationship, and he believed that he

knew decedent better than anyone else, including plaintiff. Over the years, Allen and decedent did

many things together, including building decedent’s home and working on motorcycles. Allen

believed decedent was an honest man and a hard worker. Allen testified that he and decedent never

talked about personal financial matters.

¶ 46 Allen testified that his net worth is about $2.6 million. Allen stated that he has a trust which

leaves all his assets to Steven (his surviving son) and to the wife and children of Michael, one of

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his deceased sons. Allen testified that over the past 10 to 15 years he has had some very serious

illnesses, including prostate cancer, bladder cancer, skin cancer, and a heart attack. Allen agreed

that he has already lived longer than some of his doctors expected. Allen testified that unless he

personally uses all his assets during his lifetime, any part of the assets he would receive from

decedent would pass through his trust and go to Steven and to Michael’s wife and family. Allen’s

trust gives nothing to Warbirds, and he has not pledged or promised to do so.

¶ 47 Heath testified that decedent had a great deal of affection for Allen and that decedent

indicated he would not leave the Chicago area until both of his parents had passed. Decedent told

Heath that, in decedent’s absence, plaintiff was taking care of Allen’s medical and dietary needs.

¶ 48 Franck testified that plaintiff’s and Allen’s relationship seemed very familiar and

comfortable, and that she was present on at least one occasion when plaintiff checked on Allen at

Allen’s home. Other than with respect to maybe three or four occasions when Franck was present

while plaintiff prepared meals for Allen, she had no personal knowledge of how often plaintiff

cared for Allen. However, over the course of many years, Franck had conversations with plaintiff

in which plaintiff would tell her about the care she provided for Allen and Palma. Franck testified

that decedent and plaintiff stayed in Illinois to be close to decedent’s parents.

¶ 49 It was Schweitzer’s impression that decedent and plaintiff would assist with finding Allen

and Palma caregivers and preparing meals. Schweitzer had no personal knowledge of how much

time plaintiff may have assisted with Allen or Palma.

¶ 50 Steven testified that since decedent’s passing, plaintiff has provided no support whatsoever

to Allen and that Allen is able to drive himself to his appointments, organize and take his

medications, and order supplies.

¶ 51 6. Decedent’s Relationship with His Brothers

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¶ 52 Allen testified that he was aware that decedent did not have the best relationship with his

brothers and did not particularly enjoy their company. Allen agreed that decedent told him Steven

and Michael were wrong in not helping take care of Palma and Allen.

¶ 53 Steven testified that growing up, the household had a regular family dynamic and that he

had a normal childhood. Decedent was the best man at Michael’s wedding. Steven and his wife

also asked decedent to be their oldest daughter’s godfather. Steven confirmed that after Palma

needed Alzheimer’s care, decedent became estranged from both him and Michael. But even after

the estrangement, Steven believed decedent would still have done anything for him and Steven

stated that he would have done anything for decedent.

¶ 54 According to Heath, decedent did not have a relationship with his brothers because

decedent felt his brothers were unwilling to help care for Allen and Palma. Heath further testified

that decedent told him he did not want his brothers to get any of his money and wanted plaintiff

“to have everything that he owned.”

¶ 55 Franck never heard decedent discuss that he did not want his brothers to inherit any of his

assets, only that decedent had advised he was not close with his brothers and did not have a

relationship with them.

¶ 56 Clark recalled decedent expressing resentment and disappointment towards his brothers.

Decedent was irritated to the point where he would use “colorful language” to describe his

brothers.

¶ 57 Plaintiff testified that decedent’s brothers were unwilling to help care for Palma and Allen.

Decedent felt this was disrespectful, and it frustrated and upset him. This caused a strain in the

relationship between decedent and his brothers. Decedent told others that he did not want his

brothers to receive any of his assets.

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¶ 58 7. The Trial Court’s Ruling

¶ 59 The parties submitted written closing arguments. In an order dated August 8, 2024 (but file

stamped on August 12, 2024), the trial court found that decedent entered into an agreement with

plaintiff to leave all his assets to her. It awarded plaintiff “all of the assets of decedent’s estate”

and imposed a constructive trust on the Edward Jones accounts and the probate assets for plaintiff’s

benefit. The trial court further denied “the issue of attorney’s fees.”

¶ 60 Both parties moved to modify or clarify the August 12, 2024, order regarding various

matters, including “the issue of attorney’s fees,” and plaintiff also requested a finding pursuant to

Illinois Supreme Court Rule 304(a) (eff. March 8, 2016) and a directive to Allen to distribute to

plaintiff the probate estate assets and the assets previously transferred from the Edward Jones

accounts. On August 27, 2024, defendants filed a notice of appeal in each case from the trial court

order dated May 22, 2023 (striking defendants’ affirmative defenses and dismissing Allen’s

counterclaim) and the trial court order dated August 8, 2024 (file stamped August 12, 2024). We

docketed the probate appeal (21-P-383) as case No. 2-24-0506 and the declaratory judgment

appeal (21-MR-1476) as case No. 2-24-0510.

¶ 61 Meanwhile, on September 9, 2024, the trial court granted defendants’ motion for purposes

of clarifying the issue of attorney fees and granted in part and denied in part plaintiff’s motion,

stating that it would enter a revised judgment. On September 11, 2024, the trial court entered a

revised judgment order, again awarding plaintiff “all of the assets of decedent’s estate,” imposing

a constructive trust on the Edward Jones accounts and the probate assets for plaintiff’s benefit,

ordering that all the probate estate assets be distributed to plaintiff, and ordering Allen to transfer

to plaintiff all assets previously transferred to him from the Edward Jones accounts. The court

explained:

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“This is based on clear and convincing testimonial evidence provided by a number of

witnesses and as reflected in the purported will of the decedent and the almost identical

purported wills of decedent and [plaintiff] [sic], and her substantial performance of what

has been referred to as obligations in accordance with the agreement between the decedent

and [plaintiff], including turning down an opportunity for promotion and moving to the

State of Texas in her employment, and [plaintiff] having made the decedent her beneficiary

on her investments and other financial accounts, and helping the decedent conduct his

business by which he amassed his assets and which without her assistance, he might not

have been so free to travel in his business, and assisting the decedent’s father and late

mother.

***

The evidence strongly supports the allegations that the decedent intended that [plaintiff]

was to receive all of his assets, except one life insurance policy that was to go to Allen ***.

The evidence is stronger and appears to be completely unrebutted that the decedent

absolutely and without question did not want any of his assets to go to or become the

property of either of his brothers, Steven or the late Michael, or Michael’s family, and the

award in favor of [plaintiff] of the decedent’s property and the impressing of a constructive

trust on the decedent’s Edward Jones investment account and the decedent’s probate assets

appears to be consistent with the decedent’s often expressed wishes, orally and in writing,

that his brothers Michael and Steven receive none of the assets of the decedent or his

estate.”

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¶ 62 The trial court reserved ruling on any pending and future petitions for attorney fees of the

administrator of decedent’s estate until the conclusion of any appeal. 2 It further found that the

judgment disposed of all claims against all parties in the declaratory judgment action or,

alternatively, that there was no just cause for delay of enforcement or appeal of the judgment under

Illinois Supreme Court Rule 304(a) (eff. March 8, 2016) and that the order was final and appealable

as to plaintiff’s claim in the probate case under Illinois Supreme Court Rule 304(b)(1) (eff. March

8, 2016). On October 11, 2024, defendants filed a notice of appeal in each case from the trial court

orders dated May 22, 2023, and September 11, 2024. We docketed the appeal from the declaratory

judgment action (21-MR-1476) as No. 2-24-0615 and the appeal from the probate case (21-P-383)

as No. 2-24-0617. All four appeals were subsequently consolidated.

¶ 63 III. ANALYSIS

¶ 64 On appeal, defendants argue that reversal of the trial court’s judgment is warranted for

various reasons. First, they argue that the trial court lacked jurisdiction to invalidate decedent’s

will because no petition to contest the will was filed within six months of the will’s admission to

probate. Defendants also argue that the trial court’s judgment in favor of plaintiff on counts I and

II of her amended complaint and the corresponding probate case was against the manifest weight

of the evidence. Finally, defendants contend that the trial court erred in striking their affirmative

defenses and dismissing Allen’s counterclaim pursuant to section 2-615 of the Code (735 ILCS

5/2-615 (West 2020)). We address each of these contentions in turn.

¶ 65 A. Jurisdiction

2 Counsel for the administrator of decedent’s estate filed a petition for attorney fees in the probate

case on November 8, 2023, which had not yet been ruled upon.

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¶ 66 Defendants first argue that the trial court lacked jurisdiction to invalidate decedent’s will

when it ruled on plaintiff’s motion to strike their affirmative defenses and dismiss Allen’s

counterclaim. Defendants’ argument is centered on section 8-1(a) of the Probate Act (755 ILCS

5/8-1(a) (West 2020)), which requires an interested party to file a petition to contest the validity

of a will within six months after the will is admitted to probate. See In re Estate of Mohr, 357 Ill.

App. 3d 1011, 1014 (2005). Defendants assert that the time limit set forth in section 8-1(a) is

jurisdictional. See Mohr, 357 Ill. App. 3d at 1014. As such, in the absence of compliance with the

applicable time limit, the trial court loses jurisdiction to hear a will contest. In support of their

argument, defendants note that decedent’s will was admitted to probate on January 19, 2023. In

May 2023, when the trial court ruled on plaintiff’s motion to strike defendants’ affirmative

defenses and dismiss Allen’s counterclaim, it determined that decedent’s will was invalid.

Defendants reason, however, that because no petition or suit to invalidate the will had been filed

by any party prior to the May 2023 hearing, the trial court was without jurisdiction to determine

“sua sponte” that decedent’s will was invalid. Therefore, the court’s order striking their affirmative

defenses and dismissing Allen’s counterclaim should be reversed. Defendants acknowledge that

this issue was not raised previously, but note that the lack of subject-matter jurisdiction can be

raised at any time, even on appeal. See City of Marseilles v. Radke, 287 Ill. App. 3d 757, 761

(1997).

¶ 67 Plaintiff counters that the six-month limitations period in section 8-1(a) of the Probate Act

does not apply here because neither her complaint nor the related pleadings asked the court to

make a finding on the validity of the will. To the contrary, according to plaintiff, the validity of

the will is immaterial to either the issue of whether there was a contract to make a will, trust, or

other contractual instrument or the issues raised in the related affirmative defenses and

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counterclaim. Plaintiff points out that at the May 2023 hearing, the trial court did not initially make

a specific finding as to the validity of the will because it did not need to when adjudicating the

legal issues presented by her motion to strike defendants’ affirmative defenses and dismiss Allen’s

counterclaim. It was only after defense counsel asked for clarification that the trial court declared

the will invalid. Plaintiff further argues that even if her complaint and the related proceedings are

“retroactively construed” to ask the trial court to make a finding on the validity of decedent’s will,

the trial court would have had jurisdiction to make its finding because the subject complaint was

filed and pending as part of the consolidated proceedings at the time the trial court admitted

decedent’s will to probate. As such, plaintiff alternatively asserts, any question as to the validity

of the will was timely made before the statutory period expired.

¶ 68 Although not cited by either party, we note at the outset that in In re Estate of Young, 2020

IL App (2d) 190392, ¶¶ 20-26, we rejected the notion that section 8-1(a) of the Probate Act is

jurisdictional. While acknowledging that some prior cases deemed the six-month limitation period

jurisdictional (Young, 2020 IL App (2d) 190392, ¶ 26 (citing Ruffing v. Glissendorf, 41 Ill. 2d 412,

419 (1968) and Mohr, 357 Ill. App. 3d at 1014)), we concluded that the supreme court declined to

adopt this view in Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 338

(2002) (Young, 2020 IL App (2d) 190392, ¶ 26). We explained:

“The Belleville court noted that, beginning with the 1964 amendments to the

judicial article of the 1870 constitution, the legislature’s role in determining the jurisdiction

of the circuit court ‘radically changed.’ [Belleville, 199 Ill. 2d] at 337. Thereafter, the

circuit court had jurisdiction over all justiciable matters, and the legislature’s power to

define the court’s jurisdiction was limited to administrative review. Id. (further noting that

the 1970 constitution retained this language). The supreme court questioned the

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precedential value of case law that examined the court’s jurisdiction under pre-1964 law.

Id. As relevant here, the court rejected the pre-1964 rule that ‘a limitations period contained

in a statute that creates a substantive right unknown to the common law, and in which time

is made an inherent element of the right, is more than an ordinary statute of limitations; it

is a condition of the liability itself and goes to the subject matter jurisdiction of the court.’

Id. at 338. The rule ‘under which time limitations in statutory actions are deemed

jurisdictional, is not a rule of general applicability to all statutory causes of action. Rather,

the rule is limited by the constitutional context in which it first arose.’ Id. at 340. Belleville

instructs that the trial court has jurisdiction to hear a will contest, because it is among the

class of cases—those presenting a claim under the Probate Act, a justiciable matter—‘to

which the court’s constitutionally granted original jurisdiction extends.’ Id. at 340-41

(further holding that the limitations period contained in the vehicle-franchise statute was

not a jurisdictional prerequisite to suit). Thus, to the extent that post-1964 case law views

the six-month limitation in section 8-1(a) of the Probate Act as a jurisdictional requirement,

Belleville Toyota instructs that that case law is no longer controlling.” (Emphasis in

original.) Young, 2020 IL App (2d) 190392, ¶ 26.

Our holding in Young seemingly forecloses defendants’ jurisdictional argument. But see In re

Estate of Ellis, 236 Ill. 2d 45, 50 (2009) (stating, in case decided after Belleville Toyota, but without

referencing that case, that the six-month limitation period in section 8-1(a) of the Probate Act is

jurisdictional).

¶ 69 Young aside, we also point out that defendants’ claim that the trial court “sua sponte”

declared decedent’s will invalid lacks support in the record. The term “sua sponte” means

“[w]ithout prompting or suggestion; on its own motion.” Black’s Law Dictionary (12th ed. 2024).

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Although the trial court, in ruling on plaintiff’s motion to strike defendants’ affirmative defenses

and dismiss Allen’s counterclaim, questioned the validity of decedent’s will, it did not initially

decide whether the will was invalid. Rather, it was only in response to defense counsel’s inquiry

whether the trial court was “ruling today *** that the decedent’s will that’s been admitted to

probate is not a valid will” that the trial court stated that the will was invalid. In other words, the

trial court’s finding was made at defendants’ prompting. It was also made in May 2023 and thus

was within the six-month period set forth in section 8-1(a) of the Probate Act (755 ILCS 5/8-1(a)

(West 2020)). As such, defendants’ claim that no interested party requested a finding on the

validity of decedent’s will within six months after the admission of decedent’s will to probate is

not supported by the record.

¶ 70 Regardless, defendants’ jurisdictional argument fails for a simpler reason—it relies on the

mistaken premise that resolution of plaintiff’s complaint depends on the validity of the will. As

defendants correctly note section 8-1(a) of the Probate Act provides that within six months after a

will is admitted to probate, “any interested person may file a petition in the proceeding for the

administration of the testator’s estate or, if no proceeding is pending, in the court in which the will

was admitted to probate.” 755 ILCS 5/8-1(a) (West 2020). A will contest is a quasi in rem

proceeding to set aside a will. Ellis, 236 Ill. 2d at 51. “The single issue in a will contest is whether

the writing produced is the will of the testator.” Ellis, 236 Ill. 2d at 51. “Any ground which, if

proved, would invalidate the will, including undue influence, incapacity, fraud, or revocation, may

state a cause of action.” Ellis, 236 Ill. 2d at 51. However, a claim that does not seek or require the

invalidation of a will does not implicate section 8-1(a) of the Probate Act. See, e.g., Bjork v.

O’Meara, 2013 IL 114044, ¶¶ 22-32 (holding that six-month period applicable for filing a will

contest did not apply to bar a tort claim for intentional interference with inheritance as, under the

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circumstances of the case, that cause of action did not contest the validity of the will); Ellis, 236

Ill. 2d at 51-57 (same); but see Robinson v. First State Bank of Monticello, 97 Ill. 2d 174, 182

(1983) (declining to recognize tort action for intentional interference with inheritance where the

plaintiffs engaged an attorney to determine whether they should file a will contest, decided not to

contest the will, entered into a settlement agreement, and allowed the statutorily-prescribed period

in which to contest the will to expire).

¶ 71 Turning to the facts in this case, we conclude that the limitations period in section 8-1(a)

of the Act does not apply because plaintiff did not seek a finding that decedent’s will was invalid

and resolution of the claims in plaintiff’s amended complaint do not depend on the validity of

decedent’s will. Count I of plaintiff’s amended complaint sought a declaration that plaintiff is

entitled to all of decedent’s probate assets based on a breach of contract to make a will, trust, or

other contractual instrument. Significantly, plaintiff’s complaint did not allege undue influence,

incapacity, fraud, revocation, or any other ground which, if proved, would invalidate defendant’s

will. Moreover, resolution of count I of plaintiff’s complaint does not require a determination of

the validity of decedent’s will. It merely requires a finding that the alleged oral contract was valid

and enforceable. The validity of decedent’s will is immaterial. See, e.g., Jatcko v. Hoppe, 7 Ill. 2d

479, 486-87 (1955) (specifically enforcing oral contract to make a will over contrary subsequent

written will; court did not opine on validity of written will); In re Estate of Vinkus, 2013 IL App

(3d) 110864-U, ¶¶ 20-34 (affirming summary judgment in the plaintiff’s favor, finding that the

plaintiff established a valid and oral contract to make a will that superseded the terms of the

decedent’s written will); In re Estate of Spaulding, 187 Ill. App. 3d 1031, 1035 (1989) (“A contract

to make a will supported by valid and adequate consideration, is enforceable in a court of equity.”).

In count II of the amended complaint, plaintiff raised a claim for unjust enrichment against

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defendants, seeking a constructive trust and the transfer to her of all of decedent’s probate assets

based on the alleged oral contract as well as the non-probate assets. Like count I, count II of

plaintiff’s complaint did not seek a finding on the validity of the will and it does not require a

finding of the validity of decedent’s will. Hence, we reject defendants’ jurisdictional challenge.

¶ 72 B. Plaintiff’s Amended Complaint

¶ 73 Next, defendants argue that the trial court’s judgment in favor of plaintiff on counts I and

II of her amended complaint and the corresponding probate claim are against the manifest weight

of the evidence. We address each count separately.

¶ 74 1. Count I—Contract for a Will

¶ 75 An oral contract to make a will, supported by valid and adequate consideration, may be

valid and enforceable. Burke v. Burke, 12 Ill. 2d 483, 486 (1957); Laughlin v. France, 241 Ill. App.

3d 185, 195 (1993); Spaulding, 187 Ill. App. 3d at 1035; In re Estate of Nelson, 103 Ill. App. 3d

640, 642 (1981). Such a contract “is sufficiently definite and certain to be enforceable if the court

is enabled from the terms and provisions thereof *** to ascertain what the parties have agreed to

do.” (Internal quotation marks omitted.) Pritchett v. Asbestos Claims Management Corp., 332 Ill.

App. 3d 890, 896 (2002). The burden of proof is on the party attempting to establish the contract.

Laughlin, 241 Ill. App. 3d at 195.

¶ 76 Courts accept with caution evidence offered in support of an alleged contract to make a

disposition of a deceased person’s property different from that provided by law. Jatcko, 7 Ill. 2d

at 484-85. One who seeks to enforce an oral contract for a will must establish the existence and

terms of such contract by clear, explicit, and convincing evidence. In re Estate of Kucharski, 3 Ill.

App. 3d 32, 36 (1971). Mere statements by the deceased of his or her intention to make a will are

insufficient proof to warrant the inference that a contract of any kind was made. Spaulding, 187

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Ill. App. 3d at 1036. Nevertheless, “[a] contract to make a will may be proved by declarations and

conduct of the parties not in the presence of each other.” In re Estate of Niehaus, 341 Ill. App. 454,

459 (1950). In addition, a party’s acceptance of the contract “may be shown by circumstantial

evidence, direct proof is not essential.” Niehaus, 341 Ill. App. at 459. Where a party is seeking to

enforce a purported oral contract to make a will in exchange for personal services, the trial court

must scrutinize the evidence presented with “scrupulous care.” Kucharski, 3 Ill. App. 3d at 36.

¶ 77 The existence of an oral contract, its terms, and the intent of the parties are questions of

fact. Laughlin, 241 Ill. App. 3d at 195. Further, when reviewing the testimony and evidence from

the trial, the weight and believability to be given “is a task solely within the province of the fact

finder.” Laughlin, 241 Ill. App. 3d at 196-97. The trier of fact’s findings will not be disturbed on

review unless they are against the manifest weight of the evidence. Laughlin, 241 Ill. App. 3d at

195. A finding is against the manifest weight of the evidence only if an opposite conclusion is

clearly apparent or if the finding is unreasonable, arbitrary, or not based on the evidence presented.

Graham v. Van Rengen, 2024 IL App (2d) 230611, ¶ 53. With these principles in mind, we turn to

the parties’ arguments.

¶ 78 Defendants contend that the trial court’s entry of judgment in favor of plaintiff on count I

of her amended complaint was against the manifest weight of the evidence and should be reversed.

According to defendants, plaintiff did not establish by clear and convincing evidence the definite

and certain terms required under Illinois law for a contract-for-will and the purported contract was

demonstrably inconsistent with the only written instructions decedent provided for the disposition

of his assets. Defendants further maintain that there is nothing to suggest that plaintiff’s decision

to stay with decedent in Illinois, to help him with his business, or to look after his family in his

absence “was anything other than the result of the ‘affinity’ two people have in a loving

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relationship.” Defendants also contend that plaintiff did not establish substantial reliance on the

agreement, describing certain services plaintiff performed as “done gratuitously without an

expectation of payment.” As such, defendants claim that plaintiff failed to establish definite and

specific terms of the alleged contract-for-will or her substantial reliance on decedent’s alleged

promise to leave her all his assets in exchange for performing certain services for him.

¶ 79 Plaintiff counters that the trial court’s judgment on count I of her declaratory judgment

action was not against the manifest weight of the evidence. According to plaintiff, she presented

evidence supporting the existence, terms, and intent of the will contract. Plaintiff further asserts

that her testimony on these key elements was not only unrebutted, it was corroborated by other

substantial and unrebutted testimony and evidence that, in its totality, was sufficient to support the

trial court’s judgment.

¶ 80 We agree with plaintiff. Here, the trial court found that decedent entered into an agreement

with plaintiff to leave all his assets to her based on the testimony of “a number of witnesses” and

as reflected in decedent’s “purported will” and the almost identical purported will of plaintiff. The

trial court also cited plaintiff’s performance of “obligations” in accordance with the agreement

between decedent and plaintiff. The trial court stated that plaintiff’s substantial performance

included turning down an opportunity for a job promotion and moving to Texas in her employment,

making decedent the beneficiary on her investments and other financial accounts, helping decedent

conduct his business by which he amassed his assets and which, without her assistance, he might

not have been so free to travel in his business, and assisting decedent’s father and late mother. The

trial court concluded that this evidence strongly supported the allegations that decedent intended

that plaintiff receive all his assets, except one life insurance policy that was to go to Allen, and that

decedent did not want any of his assets to go to Steven, the late Michael, or Michael’s family.

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Based on our review of the record, we cannot say that an opposite conclusion is clearly apparent

or that the trial court’s findings are arbitrary, unreasonable, or not based on the evidence presented.

¶ 81 Notably, plaintiff testified that in 2014, following several significant life events, she and

decedent entered into an oral agreement. Pursuant to the agreement, she and decedent agreed to

leave their assets to the other if one predeceased the other. As part of the agreement, plaintiff

agreed to help decedent with the business (Leading Edge) and a related non-profit entity

(Warbirds). In addition, plaintiff agreed to help decedent care and advocate for his parents. Plaintiff

also agreed to change the designations on her life insurance policies and investment accounts to

name decedent as the beneficiary.

¶ 82 Plaintiff’s testimony that she and decedent each agreed to leave their assets to the other

was corroborated by other witnesses. Heath, a friend of decedent, testified that decedent told him

that he had a will and that he wanted plaintiff “to have everything that he owned.” Schweitzer,

plaintiff’s uncle’s wife, testified that after decedent and plaintiff had a bad flying experience, they

said that “basically” they were leaving each other everything, that decedent did not want his

brothers to get anything, and that decedent wanted to leave Allen an insurance policy. For his part,

Allen admitted that he did not know for certain whether decedent did or did not enter into an

agreement with plaintiff. Plaintiff’s testimony that she and decedent made an agreement to leave

their assets to the other was also corroborated by the will documents themselves. These documents

show that plaintiff intended to give certain assets to decedent and decedent intended to give certain

assets to plaintiff.

¶ 83 Defendants attempt to introduce uncertainty about the agreement by relying on the

beneficiary designations for the Edward Jones accounts referenced in decedent’s will and certain

forms. Decedent’s will identifies Warbirds as the beneficiary of the Edward Jones accounts while

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the beneficiary-designation forms for the Edward Jones accounts name Allen and Palma as the

beneficiaries. Based on this, defendants contend that the evidence is inconsistent with the existence

of an agreement. We disagree that these discrepancies render the trial court’s ruling that plaintiff

established an oral contract for a will was against the manifest weight of the evidence.

¶ 84 Defendants’ position ignores other evidence presented at trial. For instance, decedent’s will

contains a section labeled “Schedule-Beneficiary Designations,” in which decedent lists the assets

he intended to give to plaintiff. This schedule assigns to plaintiff the home where the couple

resided, “all household items and personal property in all locations,” and six titled vehicles.

Additionally, this schedule assigns to plaintiff “100%” of “Leading Edge Flight Services, Inc. and

the wholly owned subsidiary, Warbirds of North America, Inc., and all assets therein including the

*** hangar located in Huntley, IL, the 1957 North American T-28C components, 1974 Cessna

310Q, and 1981 Piper Warrior.” Further, several witnesses provided testimonial evidence of

plaintiff’s performance of her alleged obligations under the parties’ agreement. The trial court

could have reasonably concluded, based on the provisions of decedent’s will in conjunction with

the trial testimony, the terms of plaintiff’s almost identical “temporary will,” and plaintiff’s

substantial performance of her obligations, that the evidence was sufficiently definite and certain

to establish an enforceable contract. Such an interpretation is particularly reasonable given the

unrebutted testimony from plaintiff, Heath, and Schweitzer that decedent wanted to give plaintiff

all his assets.

¶ 85 Indeed, where there is evidence of a will, equity does not require for the will to be entirely

consistent with the agreement. Weidler v. Seibert, 405 Ill. 477, 482 (1950) (“[W]here a promisor

makes a will disposing of property involved in a manner other than promised, it will be considered

but does not prevent enforcement of the contract.”). If the oral contract is sufficiently specific and

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it is fully performed, it will be enforced. Weidler, 405 Ill. at 481 (holding that evidence was

sufficient to specifically enforce oral contract to give the plaintiff a house in exchange for services,

even though the actual will only gave the plaintiff household furniture and the use of the house for

one year, where the plaintiff, inter alia, made a “life arrangement” to care for the decedent and

provided services for the decedent’s benefit); see also Jatcko, 7 Ill. 2d at 486-87 (holding that there

was sufficient evidence to infer the decedent made a valid contract to give property to the

defendant, even though the property was devised outright to the defendant in original will but not

subsequent will).

¶ 86 The cases defendants principally rely on are distinguishable. Defendants cite to Nelson,

103 Ill. App. 3d 640. In that case, the plaintiff testified that the decedent said to her “if you take

care of everything for me, then *** I want you to have whatever is left after that time, so that I’ll

know everything is being taken care of.” The plaintiff claimed that she agreed to “take care of all

[the decedent’s] needs,” and that the decedent responded, “I want you to have the building and I

will leave you whatever is left over.” Based on these statements, the plaintiff brought an action for

specific performance of an oral agreement to make a will. The trial court granted the motion of the

decedent’s estate for summary judgment in its favor. In affirming the grant of summary judgment,

the reviewing court found it “fairly clear” that the decedent intended to bequeath something to the

plaintiff and that the plaintiff was willing to care for the decedent, but it found that the terms of

the alleged contract were “extremely vague” such that the evidence in support of the alleged

contract fell “far short of being ‘clear, explicit and convincing.’ ” Nelson, 103 Ill. App. 3d at 642.

The court added that it could not ignore the terms of an unexecuted will and the affidavit of the

decedent’s attorney, both of which indicated that the decedent intended to sell the building at issue.

Nelson, 103 Ill. App. 3d at 641.

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¶ 87 Unlike the agreement in Nelson, the agreement at issue here was not “extremely vague.”

Plaintiff did not just agree generally to “take care of everything.” Rather, plaintiff’s unrebutted

testimony established that she agreed to manage decedent’s business and related non-profit entity,

help care and advocate for his parents, and name decedent as the beneficiary on insurance policies

and financial accounts. Also unlike in Nelson, decedent’s will in this case supports that decedent

intended to give his assets, directly or indirectly, to plaintiff.

¶ 88 Defendants also direct us to Spaulding, 187 Ill. App. 3d 1031. In that case, the plaintiff

sought specific performance of an alleged will contract based on the love and affection between

her and the decedent and the many chores she performed during their relationship. However, the

court held that the decedent’s statements to plaintiff and others that he would make a will in her

favor were merely statements of testamentary intent that were insufficient to prove the existence

of a contract. Spaulding, 187 Ill. App. 3d at 1036. The court further found the absence of clear and

convincing evidence that the household chores, expenses, or the love and affection provided by

the plaintiff were in exchange for the decedent’s purported promise to make a will rather than

being the result of ordinary “male-female affinity.” Spaulding, 187 Ill. App. 3d at 1037. In the

present case, unlike Spaulding, plaintiff did not rely upon “mere statements of testamentary

intent.” Plaintiff’s unrebutted testimony at trial set forth the terms of the agreement, where plaintiff

agreed to perform specific obligations for decedent. Other witnesses testified that plaintiff

performed these specific obligations. Moreover, these obligations clearly went beyond “ordinary

‘male-female affinity.’ ”

¶ 89 Defendants also contend that plaintiff did not establish substantial reliance on the

agreement, describing certain services plaintiff performed as “done gratuitously without an

expectation of payment” because she and decedent lived together as a couple. However, we agree

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with plaintiff that the trial court could reasonably conclude that she performed the obligations for

decedent based on her reliance on the oral contract to make a will, which he benefitted from.

Notably, plaintiff handled the managerial operations of the business without compensation.

Because of plaintiff, decedent was able to focus on the consulting aspect of the business. The trial

court found that decedent “amassed his assets” from the business. The trial court could reasonably

conclude that plaintiff’s performance of these obligations enabled decedent to travel, grow the

business, and accumulate wealth.

¶ 90 Moreover, because decedent travelled for work during the week, he was unable to care for

his parents alone. Plaintiff took care of decedent’s parents in his absence, which provided decedent

with relief. After Palma moved to a memory-care facility, plaintiff would regularly visit her and

advocate for her. Plaintiff also ensured that Allen got to his medical appointments. In addition,

almost every day of the week, plaintiff delivered meals to Allen. While plaintiff was caring for

decedent’s parents, she lost time with her own mother, who passed away in 2017. Plaintiff also put

her own ambitions on hold. Plaintiff and decedent remained in Illinois for his parents. Plaintiff

withdrew her application for a position at Microsoft that would have allowed her and decedent to

move to Texas, increase her salary, and advance her career. Further, based on the oral contract to

make a will, plaintiff changed her beneficiary designations to name decedent as the beneficiary of

her life insurance policies and her investment accounts. Considering this record, we reject

defendants’ contention that plaintiff’s performance of these services was “done gratuitously.”

¶ 91 In short, as the appellant, it was defendants’ burden to establish that the trial court’s

judgment was against the manifest weight of the evidence. Based on the totality of the evidence in

the record before us, we find that there was more than sufficient evidence supporting the existence

of an oral contract to make a will. The testimony and evidence were sufficient to establish the

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existence, terms, and intent of the agreement, whereby plaintiff and decedent agreed to leave their

assets to each other if one predeceased the other. The testimony and evidence were sufficient to

establish that plaintiff substantially, and to her detriment before decedent’s death, relied on the

agreement. The trial court weighed and deemed the testimony and evidence credible. The trial

court’s judgment on count I in plaintiff’s favor was not against the manifest weight of the evidence.

¶ 92 2. Count II—Unjust Enrichment

¶ 93 Defendants also contend that the trial court’s entry of judgment in favor of plaintiff on

count II of her declaratory judgment action was against the manifest weight of the evidence and

should be reversed. Defendants make no developed argument on this point. They simply assert

that plaintiff’s unjust enrichment claim was “entirely dependent” on her establishing her contract-

for-will claim as an independent basis to establish a duty on the part of defendants to not accept

property bequeathed to them either by decedent’s beneficiary designations or pursuant to the

orderly operation of the descent and distribution provisions of section 2-1 of the Probate Act (755

ILCS 5/2-1 (West 2020)). They then posit that “[p]laintiff failed to do that here,” so the trial court’s

judgment on the unjust enrichment count was against the manifest weight of the evidence.

However, having rejected defendants’ claim that the trial court’s ruling on count I, the contract-

for-will claim, was against the manifest weight of the evidence, we decline to find that the trial

court’s judgment in plaintiff’s favor on count II was against the manifest weight of the evidence.

¶ 94 C. Affirmative Defenses and Corresponding Counterclaims

¶ 95 Finally, defendants contend that the trial court erred in striking their affirmative defenses

and dismissing Allen’s counterclaim pursuant to section 2-615 of the Code (735 ILCS 5/2-615

(West 2020)).

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¶ 96 A motion brought under section 2-615 of the Code (735 ILCS 5/2-615 (West 2020)) is used

to attack defects in a pleading. In re County Treasurer and ex officio County Collector of Cook

County, 2023 IL App (1st) 220070, ¶ 22. “An ‘affirmative defense’ is one in which the defendant

gives color to his opponent’s claim but asserts new matter which defeats an apparent right in the

plaintiff.” Raprager v. Allstate Insurance Co., 183 Ill. App. 3d 847, 854 (1989). An affirmative

defense must allege facts with the same degree of specificity required to establish a cause of action.

JPMorgan Chase Bank, N.A. v. East-West Logistics, LLC, 2014 IL App (1st) 121111, ¶ 31. A

section 2-615 motion to strike an affirmative defense admits all well-pleaded facts constituting the

defenses and attacks only the legal sufficiency of the pleading based on defects apparent on its

face. Hartman Realtors v. Biffar, 2014 IL App (5th) 130543, ¶ 20; Jordan v. Knafel, 355 Ill. App.

3d 534, 539 (2005). When determining the sufficiency of the pleading, a court will disregard any

conclusions of fact or law that are not supported by allegations of specific fact. Richco Plastic Co.

v. IMS Co., 288 Ill. App. 3d 782, 784-85 (1997). However, an affirmative defense should not be

stricken where well-pleaded facts raise the possibility that the party asserting the defense will

prevail. In re County Treasurer, 2023 IL App (1st) 220070, ¶ 22. We review de novo a trial court

order striking an affirmative defense as inadequate as a matter of law. Bogner v. Villiger, 343 Ill.

App. 3d 264, 268 (2003).

¶ 97 A “counterclaim” is “[a] claim for relief asserted against an opposing party after an original

claim has been made.” Black’s Law Dictionary (12th ed. 2024). Like a section 2-615 motion to

strike an affirmative defense, a section 2-615 motion to dismiss a counterclaim challenges the legal

sufficiency of the pleading based on defects apparent on its face. Sandholm v. Kuecker, 2012 IL

111443, ¶ 54; Rico Industries, Inc. v. TLC Group, Inc., 2018 IL App (1st) 172279, ¶ 62. The

essential question is whether the allegations of the counterclaim, when construed in the light most

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favorable to the counterclaimant, are sufficient to establish a cause of action upon which relief

may be granted. See Cochran v. Securitas Services USA, Inc., 2017 IL 121200, ¶ 11. In making

this determination, all well-pleaded facts in the counterclaim and all reasonable inferences drawn

from those facts are taken as true. Zahl v. Krupa, 365 Ill. App. 3d 653, 657-58 (2006). A motion

to dismiss should not be granted unless it clearly appears that no set of facts could ever be proved

that would entitle the counterclaimant to recover. Ostendorf v. International Harvester Co., 89 Ill.

2d 273, 280 (1982). Dismissals under section 2-615 are subject to de novo review. Bonhomme v.

St. James, 2012 IL 112393, ¶ 34; Bayview Loan Processing, LLC v. Szpara, 2015 IL App (2d)

140331, ¶ 17; RBS Citizens, N.A. v. RTG-Oak Lawn, LLC, 407 Ill. App. 3d 183, 186 (2011).

¶ 98 1. First Affirmative Defense and Corresponding Counterclaim

¶ 99 Defendants’ first affirmative defense alleged that decedent’s will is valid, but any

beneficial interest plaintiff has under decedent’s will is void pursuant to section 4-6(a) of the

Probate Code (755 ILCS 5/4-6(a) (West 2020)) because plaintiff attested to its execution. Allen’s

counterclaim sought a declaration to the same effect. On appeal, defendants, reiterating the claims

made in their first affirmative defense, contend that it was reversible error for the trial court to

strike their first affirmative defense and dismiss Allen’s corresponding counterclaim.

¶ 100 Plaintiff responds that even if all well-pleaded facts are accepted as true, defendants’ first

affirmative defense and the corresponding counterclaim were legally insufficient to defeat her right

to recovery based on her claim for breach of a contract to make a will, trust, or other contractual

instrument. As such, plaintiff argues that the trial court appropriately struck defendants’ first

affirmative defense and dismissed the corresponding counterclaim.

¶ 101 We agree with plaintiff that the trial court properly struck defendants’ first affirmative

defense and dismissed the corresponding counterclaim. Defendants’ first affirmative defense and

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the corresponding counterclaim rely on section 4-6(a) of the Probate Act (755 ILCS 5/4-6(a) (West

2020)) and its Tennessee counterpart (see Tenn. Code Ann. § 32-1-103(b) (2020)). 3 These statutes

provide that any beneficial interest of a beneficiary who attests to the execution of the will is void

as to that beneficiary, unless the will is otherwise duly attested by a sufficient number of persons

exclusive of that person, but that person is entitled to receive the interest to which they would be

entitled as though there were not a will. 755 ILCS 5/4-6(a) (West 2020) (“If any beneficial legacy

or interest is given in a will to a person attesting its execution ***, the legacy or interest is void as

to that beneficiary and all persons claiming under him, unless the will is otherwise duly attested

by a sufficient number of witnesses *** exclusive of that person ***, but the beneficiary is entitled

to receive so much of the legacy or interest given to him by the will as does not exceed the value

of the share of the testator’s estate to which he would be entitled were the will not established.”);

Tenn. Code Ann. § 32-1-103(b) (2020) (“No will is invalidated because attested by an interested

witness, but any interested witness shall, unless the will is also attested by two (2) disinterested

witnesses, forfeit so much of the provisions therein made for the interested witness as in the

aggregate exceeds in value, as of the date of the testator’s death, what the interested witness would

have received had the testator died intestate.”). Importantly, these provisions do not defeat the right

of plaintiff to recover based on the claims asserted in her amended complaint, i.e., breach of a

contract to make a will, trust, or other contractual instrument (count I) and the imposition of a

constructive trust on all probate and non-probate assets under a theory of unjust enrichment (count

II). That is, even if section 4-6(a) applied here, it would merely void any claim plaintiff may have

asserted as a legatee under decedent’s will. However, plaintiff made no claim as a legatee under

decedent’s will in her amended complaint. Rather, she alleges that decedent breached an oral

3 Recall that decedent’s will was executed in Tennessee.

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contract to make a will and sought the imposition of a constructive trust. Section 4-6(a) of the

Probate Act cannot defeat plaintiff’s right to recover for a claim against decedent’s estate that is

not based on decedent’s will itself. Accordingly, we conclude that defendant’s first affirmative

defense is inapplicable and the trial court properly struck it.

¶ 102 Similarly, we conclude that the trial court properly dismissed the counterclaim

corresponding to defendant’s first affirmative defense. Even accepting all well-pleaded facts in the

counterclaim and all reasonable inferences drawn from those facts as true, defendants do not

clearly explain how the allegations of the counterclaim, when construed in the light most favorable

to defendants, are sufficient to establish a cause of action upon which relief may be granted. In

their reply brief, defendants argue that if plaintiff were unable to prove her case in light of evidence

of a valid will, a successful counterclaim would result in plaintiff taking under the will what she

would take if decedent had died intestate—nothing. See 755 ILCS 5/2-1, 4-6(a) (West 2020). But

the same is true if plaintiff were unable to prove her case in light of evidence of an invalid will.

That is because plaintiff is not an heir at law and thus would not take anything under the statute of

descent and distribution. See 755 ILCS 5/2-1 (West 2020). In other words, defendants have not

presented any evidence to refute the proposition that the motion to dismiss was improvidently

granted on the basis that there are a set of facts that would entitle them to recover. See Ostendorf

v. International Harvester Co., 89 Ill. 2d 273, 280 (1982).

¶ 103 2. Second Affirmative Defense and Corresponding Counterclaim

¶ 104 Relying on the Third Party Beneficiary Contract Act (755 ILCS 30/1 et seq. (West 2020)),

defendants’ second affirmative defense alleged that the Edward Jones accounts are not probate

assets because they are subject to a beneficiary designation identifying Allen as a transfer-on-death

beneficiary. The counterclaim requested declaratory relief to that effect. On appeal, defendants,

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reiterating the claims made in their second affirmative defense and corresponding counterclaim,

contend that it was reversible error for the trial court to strike their second affirmative defense and

dismiss Allen’s corresponding counterclaim.

¶ 105 Plaintiff responds that the trial court appropriately struck defendants’ second affirmative

defense and dismissed the corresponding counterclaim because, even if all well-pleaded facts are

accepted as true, the second affirmative defense and the corresponding counterclaim were legally

insufficient to defeat her right to recovery based on her claim for unjust enrichment.

¶ 106 Defendants rely on the Third Party Beneficiary Contract Act. That statute provides in

relevant part as follows:

“The designation *** under a pension, retirement, death benefit, deferred

compensation, employment, agency, stock bonus or profit-sharing contract, plan, system

or trust, or the designation under an account with a securities dealer as defined in Section

2.7 of the Illinois Securities Law of 1953, as now or hereafter amended, of any person to

be a beneficiary, payee or owner of any right, title or interest thereunder upon the death of

another, or any assignment of rights under any of the foregoing, shall not be subject to or

defeated or impaired by any statute or rule of law governing the transfer of property by

will, gift or intestacy, even though such designation or assignment is revocable or the rights

of such beneficiary, payee, or owner or assignee are otherwise subject to defeasance.”

(Emphasis added.) 755 ILCS 30/1 (West 2020).

In this case, it is not seriously disputed that decedent had completed a designation identifying Allen

as the sole surviving transfer-on-death beneficiary of the Edward Jones accounts. Defendants

therefore argue that the Third Party Beneficiary Contract Act precludes plaintiff from asserting

that Allen’s designation as the transfer-on-death beneficiary is defeated by her oral-contract-for-

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a-will and unjust-enrichment claims. In support of their position, defendants direct us to In re

Estate of Bedinger, 2025 IL App (5th) 240566-U. 4

¶ 107 In Bedinger, the testator left a will which listed his wife and three children as heirs. The

will directed that the testator’s 401(k) retirement account be distributed between his wife and

children, with the majority of the 401(k) to be distributed to the children. The executor filed a

petition for citation to discover assets and recover property, which alleged, inter alia, that the will

divided the 401(k) account, but the wife had applied for and received a transfer of ownership of

the account in her name alone as surviving spouse. The wife moved to dismiss, arguing, among

other things, that she was the lawful beneficiary of the 401(k) account pursuant to surviving spouse

provisions of federal law and therefore had no legal duty to turn over the proceeds to the estate. In

response to the motion, the executor claimed unjust enrichment, arguing, inter alia, that the will

itself directed that the testator’s 401(k) account be distributed between his wife and children.

Further pleadings followed, which included arguments based on the Employee Retirement and

Income Security Act of 1974 (ERISA) (codified in part at 29 U.S.C. § 18 (2020)) and the Third

Party Beneficiary Contract Act (755 ILCS 30/0.01 et seq. (West 2020)). The trial court ultimately

ruled in the wife’s favor. The executor appealed.

¶ 108 On appeal, the reviewing court, in affirming, considered the application of the Third Party

Beneficiary Contract Act based on the facts presented. Bedinger, 2025 IL App (5th) 240566-U,

¶¶ 42-45. The court held that the executor’s claim for unjust enrichment was “specifically

4 We note that unpublished orders issued under Illinois Supreme Court Rule 23(b) (eff. Jan. 1, 2021),

are “not precedential except to support contentions of double jeopardy, res judicata, collateral estoppel or

law of the case,” but nonprecedential orders issued on or after January 1, 2021, may be cited for persuasive

purposes. See Ill. S. Ct. R. 23(e)(1) (eff. Jan. 1, 2021).

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precluded” by the statute, as the unjust enrichment claim was premised on the will itself. Bedinger,

2025 IL App (5th) 240566-U, ¶ 45 (“[T]he executor attempts to circumvent the distribution of the

401(k) proceeds by use of [the decedent’s] will pursuant to a claim of unjust enrichment. However,

such action is specifically precluded in section 1 [of the Third Party Beneficiary Contract Act].”).

In reaching this conclusion, the reviewing court distinguished In re Estate of Beckhart, 371 Ill.

App. 3d 1165 (2007).

¶ 109 In Beckhart, 371 Ill. App. 3d 1165, a father and a mother entered into a settlement

agreement pursuant to which they both agreed to name their son as the beneficiary of any life

insurance policies. The father had previously named his estate as the beneficiary of his life

insurance policy and never changed the beneficiary to accord with the settlement agreement. The

father died intestate. The mother filed a claim on behalf of her son for the proceeds of the policy.

However, the insurance company paid the proceeds of the policy to the father’s estate, not to the

son. The mother then filed a motion to establish a constructive trust. In response, the father’s estate

asserted the affirmative defense of laches, alleging that the motion for constructive trust was not

filed until one year after the insurance policy proceeds had been distributed, and the delay

prejudiced the estate because the proceeds had been used for estate expenses. The trial court agreed

with the position of the father’s estate and denied the motion for a constructive trust. The mother

appealed.

¶ 110 On appeal, the reviewing court stated that, in assessing whether the trial court had erred in

denying the mother’s motion for a constructive trust, it had to first determine who was entitled to

the proceeds of the father’s life insurance policy. In addressing that issue, the court considered the

application of the Third Party Beneficiary Contract Act. Beckhart, 371 Ill. App. 3d at 1168-1170.

The court held that the son, not the father’s estate, was entitled to the proceeds of the insurance

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policy. Beckhart, 371 Ill. App. 3d at 1168-1170. In reaching this conclusion, the court noted that

a settlement agreement that requires a parent to name a child as the beneficiary of a policy “vests

the child with an equitable right that can be enforced.” Beckhart, 371 Ill. App. 3d at 1169. Thus,

the son obtained a “vested, contingent right to [the life insurance] benefits when the settlement

agreement was entered and the judgment became final.” Beckhart, 371 Ill. App. 3d at 1168-1169.

The court added that “[i]f the insured fails to name his child as the beneficiary, equity mandates

that courts treat the policy as if the child had been named as the beneficiary.” Beckhart, 371 Ill.

App. 3d at 1169. The court stated that, as a remedy, “imposing a constructive trust requires any

other party who receives the insurance proceeds, but who has an inferior equitable right to them,

to hold the proceeds for the vested beneficiary.” Beckhart, 371 Ill. App. 3d at 1169.

¶ 111 As noted, defendants liken this case to Bedinger and distinguish Beckhart. Defendants

explain that Bedinger holds that a subsequent will does not defeat a beneficiary designation on a

401(k) account where there was no earlier “vesting” of the 401(k) proceeds, as was the case in

Beckhart. See Bedinger, 2025 IL App (5th) 240566-U, ¶¶ 44-45. Further, in discussing and

distinguishing Beckhart, the Bedinger court’s focus was on the superior, vested right of the minor

arising from the marital settlement agreement in the prior divorce proceeding, which was absent

in the case before it. Bedinger, 2025 IL App (5th) 240566-U, ¶¶ 44-45. Synthesizing these cases,

defendants argue that, absent a prior vested right, a beneficiary designation made pursuant to the

Third Party Beneficiary Contract Act trumps a contrary transfer of property by will, gift, or

intestacy. As such, defendants argue that the beneficiary designation on the Edward Jones accounts

in this case trumps plaintiff’s claim that she was entitled to these assets based on a purported oral

contract for a will, which had not been reduced to judgment. Thus, even if their second affirmative

defense based on the Third Party Beneficiary Contract Act did not defeat her claim for all of

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decedent’s assets, the trial court erred in striking defendants’ counterclaim seeking a declaration

that the proceeds of the Edward Jones accounts were rightfully Allen’s.

¶ 112 Plaintiff counters that the Third Party Beneficiary Contract Act is inapplicable to an

equitable claim like unjust enrichment when the claim, like hers here, is not premised on “any

statute or rule of law governing the transfer of property by will, gift, or intestacy.” See 755 ILCS

30/1 (West 2020). Plaintiff asserts that Bedinger is distinguishable because the unjust enrichment

claim in that case was based on the will itself and therefore governed by the probate statutes.

Plaintiff analogizes this case to Beckhart. She contends that, like Beckhart, her equitable claim for

unjust enrichment is largely premised on a contractual obligation to make a will that vests her

“with an equitable right that can be enforced.” Plaintiff reasons that when she and decedent entered

into an agreement to transfer his estate to her if he predeceased her, she was vested with an

equitable right to the Edward Jones accounts as if she had been named as the death beneficiary on

those accounts. However, because of decedent’s untimely death, he did not change the beneficiary

designation for the Edward Jones accounts to plaintiff per their agreement. Plaintiff asserts that

equity gives her the remedy of a constructive trust to prevent unjust enrichment. Further, such an

equitable claim, as Beckhart supports, is not precluded by the Third Party Beneficiary Contract

Act, which is inapplicable under the circumstances of this case.

¶ 113 We agree with defendants that the trial court erred in striking their second affirmative

defense and dismissing Allen’s corresponding counterclaim based on the Third Party Beneficiary

Contract Act. At the outset, we find that Beckhart is distinguishable from the present case. In

Beckhart, the son obtained a vested, contingent right to an asset—the proceeds of a life insurance

policy—when the settlement agreement entered and the judgment became final. In other words,

Beckhart is distinguishable as that case involved a vested right immortalized by a court-sanctioned

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settlement agreement. The same situation is not present here, where the parties merely bargained

for a mere expectancy. Other than Beckhart, plaintiff cites no applicable case law in support of her

position.

¶ 114 Moreover, we reject plaintiff’s argument that the Third Party Beneficiary Contract Act is

inapplicable here. Plaintiff’s position that her complaint is based on a contractual obligation not

premised on “any statute or rule of law governing the transfer of property by will, gift, or intestacy”

is conclusory, unsupported by any direct or analogous authority. Thus, it is forfeited. Ill. S. Ct. R.

341(h)(7), (i) (eff. Oct. 1, 2020) (noting that points not argued are forfeited).

¶ 115 Forfeiture aside, plaintiff’s position is easily refuted. A “rule of law” is simply “[a]

substantive legal principle.” Black’s Law Dictionary (12th ed. 2024). Both counts of plaintiff’s

complaint advance substantive legal principles. Count I of plaintiff’s complaint sought a

declaration that decedent breached an oral contract to make a will and that she was entitled to all

probate and non-probate assets in decedent’s estate. Count II of plaintiff’s complaint sought the

imposition of a constructive trusts on all probate and non-probate assets under a theory of unjust

enrichment. As is clear from an examination of plaintiff’s claims, she clearly seeks to defeat the

designation of Allen as the transfer-on-death beneficiary of the Edward Jones accounts by a “rule

of law. However, if defendants’ second affirmative defense and corresponding counterclaim are

successful and the Third Party Beneficiary Contract Act supersedes plaintiff’s alleged oral contract

to make a will, it will defeat plaintiff’s claim that decedent breached the oral contract to make a

will and that Allen was unjustly enriched as the designated beneficiary of the Edward Jones

accounts. Further, we disagree with plaintiff’s suggestion that her claims are premised merely on

a contractual obligation. Plaintiff’s view of her claim ignores that the subject of the oral contract

is a will. Accepting plaintiff’s position would mean that a party could easily circumvent the Third

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Party Beneficiary Contract Act by alleging the existence of an oral contract for a will. See In re

Estate of Schwendeman, 112 Ill. App. 2d 273, 276-77 (1969) (noting that if was the intent of the

legislature in enacting the payable-on-death provision of the Illinois Savings and Loan Act “ ‘to

validate the specific testamentary disposition of funds in a “P.O.D. account” even though the form

of such disposition is not in accordance with the requirements of testamentary dispositions in

general as set forth in the Statute of Wills’ ” (quoting In re Estate of Gubala, 81 Ill. App. 2d 378,

383 (1967))). 5 As such, we conclude that the Third Party Beneficiary Act is a proper affirmative

defense and counterclaim and that the trial court erred in striking defendants’ second affirmative

defense and dismissing Allen’s corresponding counterclaim.

¶ 116 We also reject plaintiff’s suggestion that the Third Party Beneficiary Contract Act excepts

equitable claims from “the rule of law” as suggested by plaintiff. As our supreme court has noted,

equity follows the law, and the legislature is empowered to limit the availability of equitable

remedies. In re Liquidation of Security Casualty Co., 127 Ill. 2d 434, 447-48 (1989) (holding that

equitable relief, such as a constructive trust, was precluded where the Insurance Code provided the

exclusive scheme for determining priorities in the distribution of liquidated insurance company

assets).

¶ 117 In short, we conclude that the trial court erred in striking defendants’ second affirmative

defense and dismissing the corresponding counterclaim that relied on the Third Party Beneficiary

Contract Act. We therefore reverse that portion of the trial court’s May 22, 2023, order striking

5 Indeed, we observe that the Edward Jones website cautions investors to regularly review their

beneficiaries lest their assets be inherited by someone the investor no longer intends. See

https://www.edwardjones.com/us-en/market-news-insights/personal-finance/planning-your-

estate/beneficiaries (last visited January 23, 2026).

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defendants’ second affirmative and dismissing the corresponding counterclaim. We remand the

matter to the trial court to allow defendants to present their second affirmative defense and

corresponding counterclaim based on the Third Party Beneficiary Contract Act.

¶ 118 IV. CONCLUSION

¶ 119 For the reasons set forth above, we affirm the trial court’s finding that plaintiff proved by

clear and convincing evidence the existence of an oral contract to make a will. We also affirm that

portion of the trial court’s order imposing a constructive trust in plaintiff’s favor of the probate

assets in decedent’s estate. However, we also find that the trial court erred in striking defendants’

second affirmative defense and dismissing Allen’s corresponding counterclaim based on the Third

Party Beneficiary Contract Act. Accordingly, we reverse that portion of the trial court order

imposing a constructive trust in plaintiff’s favor of the assets previously held in the Edward Jones

accounts. Further, we remand the matter to the trial court to allow defendants to present their

second affirmative defense and corresponding counterclaim in light of our decision in this appeal.

¶ 120 Affirmed in part, reversed in part; cause remanded with directions.

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