SIXTH DIVISION March 28, 2008
No. 1-07-1793
In re ESTATE OF GRACE ELLIS, Deceased ) ) (Shriners Hospital for Children, ) ) Petitioner-Appellant ) ) v. ) Appeal from ) the Circuit Court James G. Bauman, Individually and as Executor of the Estate of Grace ) of Cook County Ellis, Deceased, ) ) 03 P 08067 Respondent-Appellee ) ) Honorable (John W. Ellis, Robert E. Ludlow, William E. Ludlow, Kenneth R. Ellis, ) James W. Kennedy, Robert K. Ellis, Robert W. Burrill, Sharon Burrill Roark, Kenneth B. ) Judge Presiding Burrill, Harding E. van Schaack, Suzanne Kirchoff, Beatrice V.S. Bock, ) Margaret E. Warkentin, Wendy Ludlow, Elizabeth Hedquist, William ) Ellis, and Frances Haswell, ) ) Respondents)). )
PRESIDING JUSTICE McBRIDE delivered the opinion of the court:
Shriners Hospitals for Children (Shriners) appeals from a circuit court order dismissing
with prejudice its “Petition to Contest Will and for Other Relief.” The issue on appeal is whether
the six month period set out in section 8-1 of the Probate Act of 1975 applies to a claim for
tortious interference with an inheritance expectancy. 755 ILCS 5/8-1 (West 2004).
Decedent Grace Ellis, of Skokie, Illinois, was an only child who never married or had
children. When Ellis died in 2003 at the age of 86, she left a multimillion dollar estate. She
executed a will in 1964 designating her elderly parents as the primary beneficiaries of her estate
and her descendants and petitioner Shriners as the contingent beneficiaries. In 1999, 1-07-1793
approximately four years before her death, she executed a new will which omitted the previous
beneficiaries and named respondent James G. Bauman as the sole beneficiary and executor of her
estate. Shortly after Ellis died, Bauman filed the 1999 will in the probate division of the circuit
court of Cook County on October 16, 2003. On October 29, 2003, the court issued an order
admitting the will to probate and naming Bauman as the estate’s independent executor. A will
admitted to probate is valid until the will is set aside. In re Estate of MacLeish, 35 Ill. App. 3d
835, 842, 342 N.E.2d 740, 746 (1976). Notice was given to Ellis’ two paternal cousins and 12 of
their children and grandchildren. The two cousins subsequently sued but settled with Bauman and
the estate, and none of Ellis’ relatives are participating in this appeal. Nearly three years after
Ellis’ last will was admitted to probate, Shriners initiated a will contest on August 8, 2006, which
included a claim of mental incapacity and allegations against Bauman of undue influence and
tortious interference with an inheritance expectancy. Bauman motioned for the dismissal of
Shriners’ petition on the basis of section 2-615 of the Code of Civil Procedure, arguing the claims
were time-barred by the six-month period specified in section 8-1 of the Probate Act of 1975.
735 ILCS 5/2-615 (West 2004); 755 ILCS 5/8-1 (West 2004).1 The court granted Bauman’s
motion and dismissed the pleading with prejudice. Shriners contends the court misconstrued the
plain language of the statute and the relevance of cases such as Robinson v. First State Bank of
1 Shriners notes that section 2-615 provides a means to challenge the factually sufficiency
of a petition, which Bauman did not do, and that section 2-619(a)(5) provides for the dismissal of
a pleading which is untimely filed. 735 ILCS 5/2-615, 2-619(a)(5) (West 2004). Shriners,
however, is not arguing it was prejudiced by Bauman’s misdesignation.
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Monticello, 97 Ill. 2d 174, 454 N.E.2d 288 (1983), and In re Estate of Jeziorski, 162 Ill. App. 3d
1057, 516 N.E.2d 422 (1987).
Although Shriners’ notice of appeal indicated it was challenging the dismissal of all three
counts, its arguments on appeal are limited to the viability of the third claim. Shriners has
effectively waived review of its claims of mental incapacity and undue influence (counts I and II),
and we now affirm the circuit court’s dismissal of those counts. Blake v. Hy Ho Restaurant, Inc.,
273 Ill. App.3d 372, 376, 652 N.E.2d 807, 811 (1995) (failure to argue results in waiver for
purposes of appeal); 210 Ill. 2d R. 341(h)(7) (formerly Supreme Court Rule 341(e)(7), points not
argued in the opening appellate brief are waived).
The statute at issue provides in relevant part:
“(a) Within 6 months after the admission to probate of a
domestic will in accordance with the provisions of Section 6-4, ***
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, to
contest the validity of the will.” 755 ILCS 5/8-1 (West 2004).
In Ruffing v. Glissendorf, 41 Il. 2d 412, 429, 243 N.E.2d 236, 240 (1968), the supreme
court determined the statute’s six-month window (then nine months) is not a statute of limitations
which may be tolled by fraudulent concealment or other impropriety and is instead a jurisdictional
limitation which is not tolled by any fact not provided for in the statute. Thus, because Ellis’ will
was not contested in a direct proceeding within the six-month statutorily prescribed time period, it
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is considered valid for all purposes. Robinson, 97 Ill. 2d at 183, 454 N.E.2d at 293. Moreover, if
section 8-1 is applicable to Shriners’ intentional tort claim, allegations of impropriety cannot save
the claim from dismissal.
Shriners points out that section 8-1 does not expressly refer to claims of intentional
inference with an inheritance expectancy. 755 ILCS 5/8-1 (West 2004). Shriners argues that
based on its plain language, section 8-1 governs only claims that are designated as will contests,
and that the circuit court’s ruling to the contrary violated the legislature’s intent. The primary
rule of statutory construction is to ascertain and give effect to legislative intent. Hunter v.
Southworth Products Corp., 333 Ill. App. 3d 158, 163, 775 N.E.2d 238, 242 (2002). When
construing a statute, a court must not depart from the plain meaning of language employed by the
legislature and “will not, under the guise of statutory interpretation, supply omissions; remedy
defects; annex new provisions; *** [or] add exceptions, limitations, or conditions [to the statutory
language].” Hunter, 333 Ill. App. 3d 164, 775 N.E.2d at 243. Shriners emphasizes that where a
statute “lists the things to which it refers, there is an inference that all omissions should be
understood as exclusions, despite the lack of any negative words of limitation.” Burke v. 12
Rothschild’s Liquor Mart, Inc., 148 Ill. 2d 429, 442, 593 N.E.2d 522, 527 (1992). This latter
principle has no application here, because the statute does not include a list. In the case Shriners
is citing, the court resolved whether a statute listing “‘all actions *** based on negligence, or
product liability based on strict tort liability’” also fairly encompassed actions based on willful or
wanton conduct. (Emphasis in original.) Burke, 148 Ill. 2d at 442, 593 N.E.2d at 527, quoting
Ill. Rev. Stat. 1989, ch. 110, par. 2-1116. A second example of the statutory list or statutory
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enumeration concept is Department of Corrections v. Illinois Civil Service Comm'n, 87 Ill. App.
3d 304, 309, 543 N.E.2d 190, 194 (1989), in which the court addressed whether regulations
listing “bribes, gifts or gratuities” as prohibited transactions was intended to prevent an employee
of the Department of Corrections from accepting a loan from a former inmate. The statute at
issue here refers to a single type of action and does not enumerate other causes. In any event,
Shriners’ construction of the statute is implausible because it would time-bar the allegations
Shriners captioned as an undue influence claim against Bauman, yet have no effect on virtually the
same allegations captioned as an intentional interference claim.
In count I of its “Petition to Contest Will and for Other Relief,” entitled “Undue
Influence,” Shriners alleged:
“31. Grace was mentally frail, vulnerable and frequently
hospitalized toward the end of her life.
32. Upon learning of Grace’s finances and mental and
familial circumstances, Bauman set forth upon a scheme to unduly
influence Grace to provide Bauman with the entirety of her estate
both prior to and upon her death.
33. Abusing his position as minister to Grace, and in breach
of his fiduciary duties, Bauman unduly influenced Grace to execute
a will dated August 9, 1999 at the office of his attorney, which
names Bauman as executor and sole beneficiary.”
The operative allegations reappear in count III, entitled “Intentional Interference with an
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Expectancy”:
“38. With knowledge of the existence and contents of
Grace’s will and estate plan, [Bauman] set forth on an intentional
scheme to interfere with [Shriners’] expectancy for his own
personal benefit.
39. [Bauman] interfered with [Shriners’] expectancy by
such conduct as:
a.) Abusing his position of trust as minister to Grace.
b.) Unduly influencing Grace to execute a new will on
August 9, 1999, which named him as executor and sole beneficiary,
thereby overcoming Grace’s long term desire to leave her estate to
[Shriners].
c.) Violating his fiduciary duty to Grace as her minister and
spiritual advisor.
d.) Taking advantage of Grace’s age, diminished mental and
physical capacity.
e.) Violating his fiduciary duties as holder of Grace’s
Power of Attorney for property.
***
g.) Influencing Grace to purchase him gifts and luxuries
such as automobiles prior to her death.”
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We cannot conclude the legislature intended to bar a will contest as untimely after six
months yet allow the same allegations to proceed in the tort arena. Shriners’ construction of
section 8-1 leads to an absurd result and is contrary to the rule of statutory construction that one
must “presume that the legislature did not intend absurdity, inconvenience, or injustice.” Hunter,
333 Ill. App. 3d at 163, 775 N.E.2d at 242. Moreover, we consider Robinson instructive on this
issue. Robinson, 97 Ill. 2d 174, 454 N.E.2d 288. Robinson involves a slightly different set of
facts, in that the plaintiffs considered filing a will contest within the six-month time period, but
refrained after reaching a settlement agreement with defendants. The plaintiffs, however, had a
change a heart and filed a petition alleging there was not only impropriety in the making of the
will but also impropriety in the settlement agreement. Robinson, 97 Ill. 2d 174, 454 N.E.2d 288.
The circuit court dismissed the pleading, and on appeal, the supreme court cited the settlement
arrangement as one of the reasons it was rejecting the plaintiffs’ intentional interference claim:
“In this case, where a will has been admitted to probate and where
the plaintiffs have engaged an attorney to determine whether they
should file a will contest, have decided not to contest the will, have
entered into a settlement agreement for the $125,000 (agreeing to
release the other parties to the agreement *** from any and all
claims and causes of action arising from any will, codicil or other
undertaking by the parties), and have allowed the statutorily
prescribed period in which to contest the will to expire (thereby
establishing the validity of the will), we will not recognize a tort
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action for intentional interference with inheritance.” Robinson, 97
Ill. 2d at 184, 454 N.E.2d at 293.
Shriners contends this quote demonstrates the supreme court refused to recognize a tort action in
Robinson, not because of section 8-1, but because the court was enforcing the parties’ $125,000
settlement agreement. 755 ILCS 5/8-1 (West 2004); Robinson, 97 Ill. 2d 174, 454 N.E.2d 288.
Shriners further argues that the circuit court failed to recognize this important distinction and
gave an overly expansive reading to the case. We disagree and conclude that while Robinson’s
holding is limited to the specific facts of that case, the supreme court’s analysis of section 8-1 is
generally applicable here. The supreme court continued:
“It seems obvious that the purpose of section 8-1 of the
Probate Act of 1975 is to limit the time within which the validity of
a will may be questioned and to create stability in the administration
of estates. *** [In] Pedersen v. Dempsey[, 341 Ill. App. 141, 143,
93 N.E.2d 85 (1950)], *** the court stated that the reasons for the
time limit in filing a will contest was ‘the pressing importance of
securing an orderly settlement of estates, to prevent embarrassment
to creditors and others, and to avoid as much as confusion as
possible in the vast amount of property rights and titles that pass
through probate.’ [Citation.]
We wish to make it clear that we believe that section 8-1
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was enacted in an attempt to make the administration of an estate
as orderly as possible because of the gravity of the interests at
stake; we therefore refuse to have section 8-1 circumvented by
allowing the plaintiffs in this case to maintain a tort action which in
its practical effect would invalidate a will that has become valid
under the Probate Act of 1975. The appellate court [properly]
found that, ‘[i]f the will is valid, it cannot reasonably be said that
plaintiffs have suffered as in tort’ ([Robinson v. First State Bank of
Monticello, 104 Ill. App.3d 758, 761, 433 N.E.2d 285 (1982]) ***.
We believe that to allow the complaint to be filed here would
permit the issue of undue influence, which would have been
grounds for a will contest, to be litigated years after the will was
admitted to probate and immune from contest on this issue.
We conclude that the trial court correctly dismissed all three
counts of the plaintiffs’ complaint.” Robinson, 97 Ill.2d at 185-86,
454 N.E.2d at 294.
Similarly, here, allowing Shriners to proceed on its allegations that Bauman tortiously interfered
with an inheritance expectancy, by abusing his position as Ellis’ trusted advisor and “[u]nduly
influencing [her] to execute a new will on August 9, 1999, which named him as executor and sole
beneficiary, thereby overcoming Grace’s long term desire to leave her estate to [Shriners],” would
permit the grounds for a will contest to be litigated years after the will was admitted to probate
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and became immune from contest. Allowing Shriners to proceed on its untimely allegations
would be contrary to the legislature’s intent.
Shriners cites In re Estate of Jeziorski, 162 Ill. App. 3d 1057, 516 N.E.2d 422 (1987), In
re Estate of Knowlson, 204 Ill. App. 3d 454, 562 N.E.2d 277 (1990), and In re Estate of Hoover,
160 Ill. App. 3d 964, 513 N.E.2d 991 (1987), for the proposition that an action for tortious
interference with an inheritance expectancy will lie when there is a lack of probate remedy.
Shriners’ reliance on these cases is misplaced, however, because in each instance, the tort claims
were filed within the six-month period specified in the statute, unlike the petition Shriners filed
more than two years after Ellis’ 1999 will was admitted to probate.
In the first of the three cases, the timely filed will contest included alternative allegations
of tortious interference with an expectancy and abuse of a confidential relationship, but the
probate judge erroneously concluded the latter claims should proceed in the law division of the
circuit court. Jeziorski, 162 Ill. App. 3d at 1058, 516 N.E.2d at 423. In reversing the dismissal
order, the appellate court specified “plaintiffs brought their action within the six-month statutory
time limit for filing a will contest and asserted their tort action as part of the proceedings.”
Jeziorski, 162 Ill. App. 3d at 1062, 516 N.E.2d at 425. The appellate court also emphasized
Illinois favors the orderly administration of estates and that the legislative purpose “in passing
probate acts is to ensure that all claims relating to the administration of estates are handled in the
probate proceedings, thereby providing a single forum for settling the rights of the parties.”
Jeziorski, 162 Ill. App. 3d at 1062, 516 N.E.2d at 425-26. The court reasoned, “it is consistent
with these goals to allow plaintiffs to adjudicate their several claims and the relief they are seeking
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in one proceeding” (Jeziorski, 162 Ill. App. 3d at 1062, 516 N.E.2d at 425-26), and concluded
“litigation of this nature should not be pled in separate complaints and plaintiffs should be allowed
to proceed in the probate division on all counts in their complaint.” Jeziorski, 162 Ill. App. 3d at
1063, 516 N.E.2d at 426. Thus, Jeziorski stands for the proposition that a timely filed will
contest may include alternatively pled tort causes of action, and it is not a basis for Shriners’
contention that its tort allegations are viable even though its will contest is undisputedly time-
barred. Jeziorski, 162 Ill. App. 3d 1057, 516 N.E.2d 422.
Likewise, in the second case, count V of the plaintiffs’ timely petition to contest the
decedent’s will sought tort damages on the basis of interference with their expectancies.
Knowlson, 204 Ill. App. 3d at 458, 562 N.E.2d at 280. The opinion specifies the “1981 will was
admitted to probate on April 17, 1985" and, less than six months later, “On October 16, 1985,
petitioners filed the [multicount] will contest” which included count V’s allegations that “Barbara
wrongfully interfered with their expectancies by using duress, fraud, and undue influence, causing
Norah to make numerous inter vivos transfers of property *** and leave Barbara [additional
assets in her will].” Knowlson, 204 Ill. App. 3d at 456, N.E.2d at 279. The probate judge
erroneously concluded count V was duplicative of the plaintiffs’ will contest counts. Knowlson,
204 Ill. App. 3d at 458, 562 N.E.2d at 280. There was, however, a possibility that none of the
decedent’s multiple prior wills would be validated by the probate court, which meant bequests to
the plaintiffs would be substantially reduced and “adequate relief [was] not assured absent a tort
action.” Knowlson, 204 Ill. App. 3d at 458, 562 N.E.2d at 281. Therefore, Knowlson is fairly
cited for the proposition that in certain probate proceedings it is permissible to plead a tort action
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in the alternative. Knowlson, 204 Ill. App. 3d at 458, 562 N.E.2d at 281. The case does not
allow Shriners to circumvent section 8-1. 755 ILCS 5/8-1 (West 2004).
In the third case, it was specified that on November 18, 1985, the decedent’s will and
eight codicils were admitted to probate, and on April 30, 1986, the plaintiffs filed claims of undue
influence, lack of testamentary capacity, revocation of the will, and intentional interference with
expectancies. In re Estate of Hoover, 160 Ill. App. 3d at 965, 513 N.E.2d at 992. Further
discussion of the case would only belabor the point that Shriners lacks support for its appeal.
Finally, Shriners draws attention to its allegations that Bauman’s “scheme” allowed him to
obtain fraudulent inter vivos transfers of money, property, and other assets from Ellis. Shriners
argues these allegations show it brought more than a will contest alone. However, Shriners’ only
interest in the inter vivos transfers stems from the 1964 will. These allegations would have been
relevant in a timely challenge to the 1999 will, but now they amount to nothing more than a
collateral attack on the order admitting the 1999 will to probate.
We do not find Shriners’ interpretation of section 8-1 of the Probate Act of 1975 and
related case law to be persuasive. 755 ILCS 5/8-1 (West 2004). Regardless of how Shriners
styled its allegations, they were a challenge to the validity of Ellis’ last will and they were time-
barred by section 8-1. 755 ILCS 5/8-1 (West 2004). In section 8-1, the legislature established a
firm time-line for contesting wills and Shriners’ allegations of fraud or undue influence cannot
upset an order of probate after the time provided. See Pedersen, 341 Ill. App. at 143, 93 N.E.2d
at 86 (the legislature limited the time for will contests due to “the pressing importance of securing
an orderly settlement of estates, to prevent embarrassment to creditors and others, and to avoid as
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much as confusion as possible in the vast amount of property rights and titles that pass through
probate”). Accordingly, we affirm the judgment of the circuit court dismissing Shriners’ tort
claim with prejudice.
Affirmed.
McNULTY and O’MALLEY, JJ., concur.