2023 IL App (1st) 220938
SECOND DIVISION September 29, 2023
No. 1-22-0938 ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________ In re ESTATE OF ALBERT KAZOROW, Deceased. ) ) Appeal from _________________________________________ ) the Circuit Court ) of Cook County JACQUELINE BURDI and NICOLE McCURDY, as ) Successor Trustee of the Kristen Pearson Trust, ) 2017-P-006063, ) 2019-L-12197 Plaintiffs-Appellants, ) (cons.) ) v. ) Honorable ) Daniel O. Tiernan, JUDITH McCURDY, ) Judge Presiding ) Defendant-Appellee. )
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Cobbs concurred in the judgment and opinion.
OPINION
¶1 The plaintiffs contend their claims of tortious interference with inheritance expectancy are
subject to the five-year statute of limitations for tort claims (see 735 ILCS 5/13-205 (West 2016))
and were wrongfully dismissed when the circuit court instead applied the six-month statute of
limitations for filing a will contest pursuant to section 8-1 of the Probate Act of 1975 (Act) (755
ILCS 5/8-1(a) (West 2016)), as well as Robinson v. First State Bank of Monticello, 97 Ill. 2d 174
(1983), and In re Estate of Ellis, 236 Ill. 2d 45 (2009), in which the supreme court discussed the
public policy underlying that statute. 1-22-0938 ¶2 The estate at issue is Albert Kazorow’s. Kazorow, a Chicagoan, was predeceased by his
wife, Yolanda, in 2011, and then died at the age of 87 in 2017. His survivors included his
daughters, Jacqueline and Judith, and granddaughters, Kristen and Nicole.
¶3 Kazorow’s will was admitted to probate on October 6, 2017, and letters of office were
issued to Judith as executor that same day. On April 6, 2018, the three other survivors, Jacqueline,
Kristen, and Nicole, filed a petition in the probate division contesting the validity of the will and a
trust bearing Judith’s name. During the proceedings, Kristen died, Nicole abandoned her own
claims, and Nicole began representing the interests of Kristen’s trust. Thus, the plaintiff-appellants
are Kazorow’s daughter, Jacqueline, and the trust of Kazorow’s granddaughter Kristen, which is
represented by his granddaughter, Nicole as successor trustee, and which we will refer to by
Kristen’s name. The defendant-appellee is Kazorow’s daughter, Judith. The fifth amended petition
contesting the will and trust is pending in the probate division and is not part of this appeal.
¶4 The claims on appeal were first filed in the law division on November 4, 2019—well after
the will contest was filed in the probate division—when Jacqueline and Kristen sued Judith for
tortious interference with inheritance expectancy as well as common law fraud and defamation. A
person who by fraud, duress, or other tortious means intentionally prevents another from receiving
from a third person an inheritance or gift that he would otherwise have received may be found
liable to the other for loss of the inheritance or gift. Ellis, 236 Ill. 2d at 52. A tort claim for
intentional interference with inheritance expectancy is a personal action that is directed at an
individual tortfeasor and seeks a judgment for the amount of the benefit they tortiously acquired,
a constructive trust, or an equitable lien. Ellis, 236 Ill. 2d at 52. The tort action differs from a will
contest. DeHart v. DeHart, 2013 IL 114137, ¶ 39. A will contest is a quasi in rem proceeding
-2- 1-22-0938 against the will itself and seeks to set aside the will as invalid. 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. Grounds for invalidating the will may include undue influence, incapacity, fraud, or
revocation. Ellis, 236 Ill. 2d at 51. In their complaint at law, Jacqueline and Kristen alleged that
documents they obtained through discovery in the probate action indicated that while Kazorow
was alive, Judith depleted his estate by fraudulently causing some of his funds and other assets to
be transferred to her. They filed a first amended complaint, which was transferred to the probate
division and consolidated with their will contest. Then they filed a second amended complaint in
the probate division, which was dismissed on Judith’s motion. This is the ruling at issue on appeal.
Only the dismissal of their two tortious interference counts (counts I and II) are contested on
appeal.
¶5 Judith moved to dismiss the complaint pursuant to section 2-619.1 of the Code of Civil
Procedure, which allows a party to file a motion combining a section 2-615 motion to dismiss with
a section 2-619 motion to dismiss. 735 ILCS 5/2-619.1 (West 2018). A section 2-615 argument
concerns the legal sufficiency of a complaint. Bjork v. O’Meara, 2013 IL 114044, ¶ 21. A section
2-619 argument admits the sufficiency of a complaint, but asserts affirmative matter that defeats
the claim. Bjork, 2013 IL 114044, ¶ 21. One of the affirmative matters that is enumerated in section
2-619 is that “the action was not commenced within the time limited by law.” 735 ILCS 5/2-
619(a)(5) (West 2018). The circuit court granted Judith’s motion to dismiss the tortious
interference counts on this basis.
¶6 Section 8-1 of the Act states :
“(a) Within 6 months after the admission to probate of a domestic will ***, any
-3- 1-22-0938 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(a) (West 2016).
¶7 In contrast, the statute generally governing tort claims states:
“[A]ctions on unwritten contracts, expressed or implied, or on awards of arbitration, or to
recover damages for an injury done to property, real or personal, or to recover the
possession of personal property or damages for the detention or conversion thereof, and all
civil actions not otherwise provided for, shall be commenced within 5 years next after the
cause of action accrued.” 735 ILCS 5/13-205 (West 2016).
¶8 In the dismissal order, the court specified:
“2) [The claims of] Tortious Interference were not brought timely within six months of
the admission to probate of the Will of Albert Kazorow,
3) The original Complaint in Case No 2019 L 12197 was not filed until November 4,
2019, which was more than six months after the Probate Division admitted the Will of
Albert Kazorow to probate,
4) Plaintiffs had plead (sic) tortious interference in Case No 2017 P 006063, but chose
to abandon the claim in subsequent petitions,
5) Plaintiffs’ prior pleadings in Case No 2017 P 006063 show Plaintiffs were aware of
and had the opportunity to file a Tortious interference claim within the 755 ILCS 5/8-1(a)
six month limitations period [for will contests],
6) Applying the holdings and public policy in In re Estate of Ellis, 236 Ill. 2d 45 (2009)
and Robinson v. First State Bank of Monticello, 97 Ill. 2d 174 (1983), Plaintiffs are not
-4- 1-22-0938 entitled to toll the limitations period for filing their actions alleging tortious interference
with inheritance expectancy[.]”
¶9 Thus, the question on appeal is the timeliness of the claims.
¶ 10 We review de novo a dismissal pursuant to section 2-619 of the Code of Civil Procedure.
Bjork, 2013 IL 114044, ¶ 21. A section 2-619 motion admits as true all well-pled facts, as well as
all reasonable inferences that may arise therefrom. Bjork, 2013 IL 114044, ¶ 21. When ruling on
a section 2-619 motion, a court must interpret all pleadings and supporting documents in favor of
the nonmoving party. Bjork, 2013 IL 114044, ¶ 21.
¶ 11 The record does not support the circuit court’s finding that Jacqueline and Kristen’s “prior
pleadings” in the probate division show that they were aware of and had an opportunity to file a
tortious interference claim within section 8-1 of the Act’s time limitation. First, the prior pleading
the circuit court analyzed was the first amended probate petition, which was filed on May 18, 2018.
By our calculations, this was six months and six weeks after the will was admitted to probate.
Second, and more importantly, the intentional interference claim in the first amended probate
petition and the intentional interference claim in the second amended complaint at law were based
on different events. The first amended probate petition’s intentional interference claim contrasted
Kazorow’s 2011 estate planning documents, which made a relatively minor bequest to Judith but
largely benefitted Jacqueline and Kristen, and Kazorow’s 2012 estate planning documents, which
instead entirely benefitted Judith. (The plaintiffs did not include this claim in their second
amended, third amended, and fourth amended probate petitions.) The complaint at law, however,
was not based on changes to Kazorow’s will and trust, it was based on inter vivos transfers from
Kazorow to Judith when his assets exceeded $4 million. For these two reasons, the record does not
-5- 1-22-0938 bear out that Jacqueline and Kristen “were aware of and had the opportunity to file” the tortious
interference claim at issue within section 8-1 of the Act’s six-month time constraint. In fact, the
record lacks any indication that Jacqueline and Kristen knew or should have known of the
inter vivos transfers that they allege were the product of Judith’s coercion and fraud.
¶ 12 Jacqueline and Kristen argue that the cases the court relied upon, Robinson, 97 Ill. 2d 174,
and Ellis, 236 Ill. 2d 45, are distinguishable because those plaintiffs did not file will contests within
section 8-1 of the Act’s six-month limitations period but subsequently filed tort claims that
required the courts to determine whether they could proceed. The difference here is that Jacqueline
and Kristen timely filed a will contest that is still pending and then added the tort claims at issue,
which are based on newly discovered information and which would not be addressed in their
original action. Jacqueline and Kristen contend that the analysis underlying Robinson and Ellis is
not applicable to their dismissed claims. Judith responds that Robinson, Ellis, and Bjork indicate
that the determinative fact in what limitations period should apply to tortious interference claims
is whether the claims seek or require setting aside the testator’s will and that Jacqueline and
Kristen’s tort claims are dependent upon invalidating Kazorow’s last estate plan in order to
reinstate the prior version under which they had an expectancy interest. We are persuaded by
Jacqueline and Kristen’s argument.
¶ 13 After the Robinson will was admitted to probate, heirs at law who did not benefit from the
will entered into a $125,000 settlement agreement with the will’s beneficiaries and released them
from any and all claims and causes of action arising from any will, codicil, or undertaking by the
parties. Robinson, 97 Ill. 2d at 177. “[I]f no direct proceeding is brought to contest the will within
the [6-month] statutorily prescribed time period, [then] the validity of the will is established for all
-6- 1-22-0938 purposes.” Robinson, 97 Ill. 2d at 182-83. Thirty months after the will was filed and 24 months
after it had become valid under the Act, the individuals who had chosen to settle filed a tort suit
that did not directly challenge the will or seek damages from the estate. Robinson, 97 Ill. 2d at 181.
However, the supreme court reasoned that their suit was effectively a late will contest because it
would require the circuit court to determine that the settled will was invalid. Robinson, 97 Ill. 2d
at 182. It would have been against sound public policy to permit the plaintiffs to bring a collateral
attack on the order admitting the will to probate. Robinson, 97 Ill. 2d at 186. The supreme court
emphasized that the public policy which underlies section 8-1 is “ ‘the pressing importance of
securing an orderly settlement of estates, to prevent embarrassment to creditors and others, and to
avoid as much confusion as possible in the vast amount of property rights and titles that pass
through probate.’ ” Robinson, 97 Ill. 2d at 185 (quoting Pedersen v. Dempsey, 341 Ill. App. 141,
143 (1950)). Allowing the plaintiffs to affirmatively decide not to contest the will, enter into a
settlement agreement, let the six-month period expire, and yet then bring their suit “would be
giving them a second bite of the apple and defeating the purpose of *** section 8-1.” Robinson,
97 Ill. 2d at 185. The supreme court “refuse[d] 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.” Robinson, 97 Ill. 2d at 186. Allowing the plaintiffs
to maintain their tort action “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.” Robinson, 97 Ill. 2d at 186; see also In re Estate of Roeseler, 287 Ill.
App. 3d 1003, 1021 (1997) (“If a will contest is available and would provide an adequate remedy
to the petitioner, no tort action will lie.”); In re Estate of Hoover, 160 Ill. App. 3d 964, 966 (1987)
-7- 1-22-0938 (an action for the tort of intentional interference with an expectancy cannot be sustained where the
remedy of a will contest is available and would provide the injured party with adequate relief).
¶ 14 Robinson’s public policy concerns are not implicated in the present case where the
plaintiffs filed a will contest within section 8-1 of the Act’s time limit and are awaiting resolution
of that claim. The second amended complaint at law includes allegations that Judith interfered with
her father’s estate plan but also indicates that she engaged in “profligate spending and unlawful
inter vivos transfers” from her father’s assets and also delayed in disclosing his death in order to
give herself “time to further loot [his] estate and transfer all [his] estate assets into her name.”
Jacqueline and Kristen allege that the “Will Contest in Cause No. 2017 P 006003 alone will not
fully compensate” them and seek compensatory and punitive damages for Judith’s intentional
interference with her father’s estate plan and assets. The allegations of unauthorized inter vivos
transfers and depletion of the estate would not be relevant to or remediated in the pending will
contest.
¶ 15 The policy interests expressed in Robinson are not present here because by filing a will
contest prior to filing their tort claims, Jacqueline and Kristen did not “circumvent[ ]” section 8-1
by bringing a collateral attack on a “valid[ated]” will. Robinson, 97 Ill. 2d at 186. Their will
challenge is pending and is a direct attack on whether the 2012 will is actually Kazorow’s. Their
tort claims are based on documents they obtained through discovery in the will contest, and
Robinson does not suggest that they should be prevented from supplementing that pending action
with tort claims after the expiration of the limitations period for the will contest itself. Furthermore,
Kazorow’s disputed will is not a “validated” will because it has not progressed through the process
of the will challenge.
-8- 1-22-0938 ¶ 16 Ellis is another instance in which a will contest was not filed within the six-month
limitations period. Ellis, 236 Ill. 2d 45. The plaintiff would have benefitted significantly from an
earlier version of the decedent’s will but was unaware of that bequest until more than two years
after a different will was admitted to probate. Ellis, 236 Ill. 2d at 48. The plaintiff alleged that the
newer will was procured through the defendant sole beneficiary’s undue influence, fraud, and
tortious interference with the plaintiff’s expectancy, but the circuit court dismissed the action as
time-barred by section 8-1. Ellis, 236 Ill. 2d at 47. The plaintiff appealed only the dismissal of the
latter claim. Ellis, 236 Ill. 2d at 47. Distinguishing the circumstances from Robinson, the supreme
court observed that the plaintiff did not have “a fair opportunity to pursue a remedy in probate
because it was not aware of its expectancy under the earlier will, nor was it aware of [the
defendant’s] allegedly fraudulent conduct, until after the [later] will was admitted to probate and
the six-month deadline for a will contest had expired.” Ellis, 236 Ill. 2d at 55-56. The supreme
court reasoned that a will contest had never been “ ‘available’ ” to the plaintiff (Ellis, 236 Ill. 2d
at 54) and, furthermore, a will contest would not have provided “sufficient relief” because it would
not have extended to the defendant’s alleged inter vivos depletion of the estate by more than $1
million (Ellis, 236 Ill. 2d at 56). The court held that section 8-1 did not apply to the tort claim
(Ellis, 236 Ill. 2d at 56) and emphasized that its holding “does not extend to a plaintiff who fails
to bring a tort claim within the period for filing a will contest, where the will contest remedy was
available” (Ellis, 236 Ill. 2d at 57).
¶ 17 Ellis does not preclude the tort claims at issue. The Ellis plaintiff and the current plaintiffs
differ because the current plaintiffs were pursuing their timely will challenge when they discovered
the potential for another claim because financial documents they obtained suggested that the
-9- 1-22-0938 defendant had been treating the testator’s assets as if they were her own to spend and/or transfer
out of his estate. However, the Ellis plaintiff and the current plaintiffs are alike because a will
contest alone would not provide any of them “sufficient relief” because a will contest cannot reach
the alleged inter vivos depletion of an estate. Ellis, 236 Ill. 2d at 56. Ellis is not rationale for
applying section 8-1 to the current circumstances and holding that section 8-1 bars the tort claims
that Jacqueline and Kristen filed after more than six months had lapsed.
¶ 18 Bjork, 2013 IL 114044, ¶ 31, provides additional support for Jacqueline and Kristen’s
appeal, where the supreme court determined that a tort claim could proceed, in part because a prior
probate proceeding had not provided the plaintiff with an adequate remedy. Jacqueline and
Kristen’s tort claims seek relief that they could not obtain through a probate proceeding alone.
¶ 19 Furthermore, we disagree with Judith’s contention that Robinson, Ellis, and Bjork, 2013 IL
114044, justify the dismissal of Jacqueline and Kristen’s tort claims. Judith contends those cases
indicate that the test of whether tort claims may be filed after the six-month mark “is whether the
tort claims seek, or require, setting aside the testator’s probated will.” She argues that Jacqueline
and Kristen’s tort claims require first setting aside the 2012 estate planning documents before these
plaintiffs receive their requested relief of a personal judgment against Judith for the disputed
inter vivos transfers. Judith contends the cases indicate that the “claims are collateral attacks” on
the admitted will.
¶ 20 Even if Judith’s summation of Robinson, Ellis, and Bjork were correct, we point out that
the 2012 will has not been probated, there is a pending will contest, and thus, Judith’s reading of
these three cases is not the prohibition that she hopes it is. Furthermore, it appears that the will
contest and the tort claims could easily be decided together, because there is considerable overlap
- 10 - 1-22-0938 in the two sets of allegations and thus evidence and argument necessary to adjudicate whether the
will and inter vivos transfers were actually Kazorow’s. The disputed revision to Kazorow’s estate
plan and challenged financial transactions occurred around the same time. That is, the disputed
will is dated March 22, 2012, and in their tort pleading, Jacqueline and Kristen gave examples of
Judith’s “profligate spending [of Kazorow’s funds] and unlawful inter vivos transfers,” including
a $5000 check to Judith on February 14, 2012, a $47,691.28 check to an automobile dealership on
October 10, 2012, multiple checks totaling in excess of $34,000 to a builder for services for
Judith’s benefit in mid-to-late 2012, and a $2000 transfer to Judith on May 10, 2014.
¶ 21 Also, in In re Estate of Jeziorski, 162 Ill. App. 3d 1057, 1062-64 (1987), with regard to a
will contest that was jointly pled with a claim for tortious interference with expected inheritance
and sought to set aside certain inter vivos transfers, the appellate court endorsed hearing the claims
together:
“We recognize Illinois’ long-standing policy favoring the orderly administration of estates.
[Citation.] We further recognize the purpose of legislatures 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.
[Citation.] In our opinion, it is consistent with these goals to allow plaintiffs to adjudicate
their several claims and the relief they are seeking in one proceeding.
***
*** It is our opinion, consistent with the procedural rules, that 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. ***
- 11 - 1-22-0938 *** [T]he plaintiffs here allege that the defendants fraudulently induced the decedent
to make certain inter vivos transfers of assets and that substantially all of the probate assets
are outside of the estate. Therefore, even if plaintiffs should prevail in a will contest
proceeding, it would not provide them with the relief they are seeking.
*** By allowing plaintiffs an opportunity during the probate proceedings to be heard
and to present evidence regarding the tort actions, a further collateral attack on the probate
decree in a later tort action in the law division would not be required. The trial court can
hear all the evidence in one proceeding. We do not believe it is necessary for plaintiffs to
exhaust their probate remedies before bringing an action in tort.”
¶ 22 Therefore, it does not appear from the record and the parties’ arguments that the will contest
would have to entirely conclude, as Judith argues, before the circuit court could receive evidence
or argument about the merits of the tort claims. Jacqueline and Kristen’s tort claims are not “a
second bite of the apple.” Robinson, 97 Ill. 2d at 185. The tort claims do not implicate the public
policy concerns discussed in Robinson, Ellis, and Bjork regarding the property rights created by a
probated will and do not run afoul of the goals of efficient and timely administration of the estate.
¶ 23 It is undisputed that Jacqueline and Kristen filed their tort claims within the five-year
general statute of limitations for actions to recover personal property or damages for its detention
or conversion. See Bjork, 2013 IL 114044, ¶ 24 (citing 735 ILCS 5/13-205 (West 2008)).
¶ 24 Finally, Judith contends Jacqueline and Kristen lack standing to pursue the claims of
tortious interference with inheritance expectancy “because they have no expectancy interest until
[the 2012] will is set aside” and they become beneficiaries under Kazorow’s prior estate planning
- 12 - 1-22-0938 documents. Judith included this argument in her section 2-619 motion but the circuit court did not
reach it. Judith now argues that lack of standing is reason for this court to stay the tort claims
pending resolution of the will contest.
¶ 25 Lack of standing is an affirmative matter that is properly presented under section 2-619.
Glisson v. City of Marion, 188 Ill. 2d 211, 220 (1999). The doctrine of standing limits who may
sue and requires that a party have “some injury in fact to a legally cognizable interest.” Glisson,
188 Ill. 2d at 221. Standing assures that issues are raised only by those parties with a real interest
in the outcome of the controversy. Glisson, 188 Ill. 2d at 221. When addressing a standing
argument, a court must accept as true all well-pled facts in the complaint and all inferences that
can reasonably be drawn in the plaintiff’s favor and grant the dismissal only if the plaintiff can
prove no set of facts that would support a cause of action. In re Estate of Schlenker, 209 Ill. 2d
456, 461 (2004).
¶ 26 Judith erroneously relies on DeHart, 2013 IL 114137, ¶ 41, for the proposition that
Jacqueline and Kristen’s tort claims are premature so long as their will contest remains a viable
cause of action. DeHart’s analysis is specific to the complaint at issue in that case in which the
plaintiff pled multiple grounds for invalidating the will. See DeHart, 2013 IL 114137, ¶ 12. Our
analysis above regarding the circuit court’s ability to hear in one proceeding all the evidence
relating to a will contest, tortious interference with inheritance expectancy, and the propriety of
certain inter vivos transfers adequately addresses Judith’s concern about Jacqueline and Kristen’s
standing to present their various claims together rather than separately. We are not directing the
circuit court to hear the claims simultaneously, however. The circuit court is capable of managing
a party’s various causes of action and has discretion to efficiently control its docket. Scentura
- 13 - 1-22-0938 Creations, Inc. v. Long, 325 Ill. App. 3d 62, 73 (2001) (circuit court has the discretion to manage
its docket to ensure that there is no undue delay in the resolution of proceedings). We decline
Judith’s request to stay the tort claims until the will contest is resolved.
¶ 27 For the reasons stated, the judgment of the circuit court dismissing Jacqueline and Kristen’s
tort claims as untimely is reversed.
¶ 28 Reversed.
- 14 - 1-22-0938
In re Estate of Kazorow, 2023 IL App (1st) 220938
Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 2017-P- 006063, 2019-L-12197; the Hon. Daniel O. Tiernan, Judge, presiding.
Attorneys Edward S. Rueda, of ESR Law Group, LLC, of Oak Park, and for George C. Pontikes, of George C. Pontikes & Associates, PC, of Appellant: Chicago, for appellants.
Attorneys Ray J. Koenig III, Eric Dorkin, and Timothy Herman, of Clark Hill for PLC, of Chicago, for appellee. Appellee:
- 15 -