In re Estate of Mikels

2022 IL App (4th) 210277-U

• Court: Appellate Court of Illinois
• Decided: May 9, 2022
• Docket: 4-21-0277
• Status: Unpublished

Opinion

NOTICE This Order was filed under 2022 IL App (4th) 210277-U FILED Supreme Court Rule 23 and is May 9, 2022 not precedent except in the Carla Bender limited circumstances allowed NO. 4-21-0277 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re ESTATE OF BERNADINE C. MIKELS, Deceased ) Appeal from the ) Circuit Court of (Anthony R. Mikels Jr., ) Sangamon County Cross-Petitioner-Appellant, ) No. 21P25 v. ) Andrea C. Mikels and John A. Mikels, ) Petitioners-Appellees). ) Honorable ) Gail L. Noll, ) Judge Presiding.

PRESIDING JUSTICE KNECHT delivered the judgment of the court. Justices DeArmond and Steigmann concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, concluding the circuit court’s determination that cross-petitioner was unsuited to serve as the administrator of his mother’s estate because of the hostility between him and his siblings was not against the manifest weight of the evidence.

¶2 On December 17, 2020, Bernadine C. Mikels died, leaving four surviving adult

children: Joseph A. Mikels, Anthony R. Mikels Jr., John A. Mikels, and Andrea C. Mikels.

Thereafter, Andrea and John filed a petition for letters of administration nominating the Sangamon

County Public Administrator to serve as the administrator of Bernadine’s estate. Anthony, in turn,

filed a cross-petition for letters of administration nominating himself to serve as the administrator

of Bernadine’s estate, a petition which was later supported by Joseph. Following a hearing and the submission of written briefs, the circuit court entered an order directing the circuit clerk to issue

letters of administration to the Sangamon County Public Administrator. Anthony now appeals

from that order, arguing the court’s determination that he was unsuited to serve as the administrator

of Bernadine’s estate because of the hostility between him and his siblings is against the manifest

weight of the evidence. We disagree and affirm.

¶3 I. BACKGROUND

¶4 The following background is gleaned from the common law record and an agreed

statement of facts.

¶5 On January 13, 2021, Joseph, through his counsel, filed a petition for probate of

will and for letters testamentary. In the petition, Joseph sought to have a copy of Bernadine’s will

admitted to probate on the basis that he and “other family members” had been unable to locate

Bernadine’s original will “[d]espite exhaustive efforts.” Also in the petition, Joseph characterized

Andrea as a disabled person. Joseph attached to the petition the copy of Bernadine’s will. The will

acknowledges the existence of Bernadine’s four children, bequeaths to Andrea all of Bernadine’s

jewelry, divides the residuary of Bernadine’s estate equally amongst the children, names Joseph

as the executor, and names Anthony as the successor executor.

¶6 On January 15, 2021, Andrea and John, through their counsel, filed an objection to

Joseph’s petition for probate of will and for letters testamentary. In the objection, Andrea and John

argued Joseph had not alleged sufficient facts to rebut the presumption that Bernadine had revoked

the will, a presumption which exists when an original will cannot be found at a testator’s death.

They also noted, contrary to the characterization in Joseph’s petition, Andrea had not been

adjudicated disabled by any court of competent jurisdiction.

-2- ¶7 On January 19, 2021, Joseph, through his counsel, filed a response to the objection

to the petition for probate of will and for letters testamentary. In the response, Joseph alleged he

and Anthony had made efforts, including a search of Bernadine’s safe deposit box, to find

Bernadine’s original will. Joseph alleged Andrea, who resided with Bernadine at the time of her

death, and John changed the locks to Bernadine’s house and prevented him from entering the house

to search for the original will. Joseph asserted the original will was “likely in the possession of”

Andrea and John. Joseph further asserted Andrea and John had “not acted in good faith related to

[Bernadine’s] [e]state” and “taken actions to dispose of [its] assets.” Joseph sought an opportunity

for “all beneficiaries/heirs” to have access to Bernadine’s house to search for the original will and

an order preventing the disposal of any of Bernadine’s assets.

¶8 On January 20, 2021, Joseph, along with his counsel, Andrea and John, along with

their counsel, and Anthony, without counsel, appeared before the circuit court during the

“regularly scheduled uncontested [p]robate call.” The parties agreed no property would be

removed from Bernadine’s house. The court set the matter for a contested hearing on February 16,

2021.

¶9 On February 3, 2021, Joseph’s counsel filed a motion for leave to withdraw as

counsel. The motion indicated leave to withdraw was sought at Joseph’s request.

¶ 10 On February 16, 2021, Joseph, along with his counsel, Andrea and John, along with

their counsel, and Anthony, without counsel, appeared before the circuit court for the scheduled

contested hearing. The court granted the motion for leave to withdraw by Joseph’s counsel and

then continued the matter to March 22, 2021.

¶ 11 On March 22, 2021, Joseph, without counsel, Andrea and John, along with their

-3- counsel, and Anthony, along with his recently retained counsel, appeared before the circuit court

for the continued contested hearing. Joseph testified in support of his petition for probate of will

and for letters testamentary. Joseph, believing Bernadine kept her original will in her safe deposit

box, visited Bernadine’s safe deposit box with Anthony and Anthony’s wife to search for the will.

The will was not in the safe deposit box. Because John, in addition to Joseph, was an “account

holder[ ]” on Bernadine’s safe deposit box, Joseph “suggested that John could have taken the

original will.” On February 6, 2021, Joseph and his siblings, by agreement, met at Bernadine’s

house to conduct a 90-minute search for Bernadine’s original will. A law enforcement officer was

present during the search. Also during the search, Andrea, who previously lived with Bernadine,

“stood in the hallway outside the doorway to her bedroom to guard her bedroom door.” Joseph

explained how he felt “uncomfortable” with “the circumstances regarding his family and [the]

scheduled search.” Following Joseph’s testimony, Andrea and John moved for a directed finding,

which the court granted. The court denied Joseph’s petition for probate of will and for letters

testamentary.

¶ 12 On March 23, 2021, Andrea and John, through their counsel, filed a petition for

letters of administration. In the petition, Andrea and John nominated the Sangamon County Public

Administrator to serve as the administrator of Bernadine’s estate.

¶ 13 On March 24, 2021, Anthony, through his counsel, filed a cross-petition for letters

of administration. In the petition, Anthony nominated himself to serve as the administrator of

Bernadine’s estate. Also in the petition, Anthony characterized Andrea as a disabled person and

estimated the value of Bernadine’s estate to be $545,000.

¶ 14 On March 26, 2021, Andrea and John, through their counsel, and Anthony, through

-4- his counsel, filed notices of an April 7, 2021, hearing on the competing petitions for letters of

administration.

¶ 15 On April 7, 2021, Andrea and John, along with their counsel, Anthony, along with

his counsel, and Joseph, without counsel, appeared before the circuit court for the scheduled

hearing on the competing petitions for letters of administration. Joseph “voiced support for

Anthony’s petition,” and the court heard oral arguments; no testimony was given. Andrea and John

argued the “division among the heirs” suggested it would be in the best interests of all involved to

have a neutral, third party appointed as administrator. They noted, contrary to the characterizations

in the petitions filed by both Anthony and Joseph, Andrea had not been adjudicated disabled, and

“this was an example of how Andrea is viewed and had been treated by Anthony and Joseph.”

They also noted Andrea might file a claim against Bernadine’s estate which, in turn, would result

in Anthony having a conflict of interest if he was appointed as an administrator. Conversely,

Anthony argued he was qualified, willing, and able to serve as administrator and, therefore, had a

preferred right to be the administrator over a third-party nominee of Andrea and John. As to his

characterization of Andrea as disabled, Anthony asserted he characterized Andrea as such because

Joseph had previously done so and because Bernadine had received “disabled child benefits”

through her retirement account. Following oral arguments, the court directed the parties to file

briefs “on the issue of the disability of Andrea and on the appointment of a [p]ublic [a]dministrator

over a family member.”

¶ 16 On April 14, 2021, Andrea, through her counsel, filed a claim against Bernadine’s

estate, seeking to recover (1) $11,965.12 which she paid to Anthony and Joseph for funeral and

burial expenses of Bernadine and (2) at least $135,000 for the years she lived with and took care

-5- of Bernadine prior to her death.

¶ 17 On April 16, 2021, Anthony, through his counsel, filed a brief in support of his

cross-petition for letters of administration. As to his characterization of Andrea as disabled,

Anthony asserted the characterization “was not intended to take away [Andrea’s] ability to

nominate an administrator [but rather] to present an accurate representation of [his] belief

concerning Andrea’s status.” Anthony conceded, to the extent his belief was incorrect, he had no

objection to his petition being amended accordingly. As to the appointment of an administrator of

Bernadine’s estate, Anthony argued Andrea and John “provided no evidence in support of their

[p]etition for appointment of the public administrator[,] and they provided no evidence that [he] is

unable or unqualified to act as administrator.” Anthony maintained, therefore, he had a preferred

right to be the administrator over the third-party nominee of Andrea and John.

¶ 18 Also on April 16, 2021, Andrea and John, through their counsel, filed a brief in

support of their petition for letters of administration. Andrea and John maintained Andrea had

never been adjudicated as a disabled person and, therefore, she had the right to nominate an

administrator. As to the appointment of an administrator of Bernadine’s estate, Andrea and John

argued Anthony was unsuited to be the administrator and, therefore, their third-party nominee

should be appointed. In support of their argument, Andrea and John asserted Anthony would have

a conflict of interest if he was appointed administrator because he “could not possibly fulfill his

duty of loyalty to estate while balancing his personal interests of minimizing [Andrea’s claim

against the estate].” Andrea and John further asserted the court “need not look any further than the

existing record of th[e] proceedings to see that hostility exists among the interested parties.” They

highlighted (1) the objection to Joseph’s petition for probate of will and for letters testamentary

-6- and (2) Joseph’s testimony from the March 22, 2021, hearing. As to the objection to Joseph’s

petition, they noted the objection was to Andrea’s detriment given the specific bequest in the will.

As to Joseph’s testimony, they noted a law enforcement officer was present during the search for

the original will. They further alleged “all of the interested parties agreed that law enforcement

supervision was a condition precedent for everyone to be present at the home due to the high level

of tension among the family.”

¶ 19 On May 4, 2021, the circuit court entered an order directing letters of administration

be issued to the Sangamon County Public Administrator. In the order, the court initially found no

evidence to support Anthony’s characterization of Andrea as disabled and, therefore, struck the

characterization from Anthony’s petition and found Andrea was entitled to administer or nominate

a person to administer Bernadine’s estate. As to an appropriate administrator, the court considered

Anthony’s suitability to serve as an administrator. The court found: “The record in this case,

including the testimony and argument presented on March 22, 2021[,] during a hearing on

[Joseph’s petition for probate of will and for letters testamentary], supports a finding of hostility

amongst the Mikels siblings. While Anthony is statutorily qualified to serve as administrator, the

hostility renders him unsuitable for the role.” The court then, finding “the best interests of the

estate will be served by appointing a competent, neutral third party as administrator,” accepted the

nominations by Andrea and John to appoint the Sangamon County Public Administrator to serve

as the administrator of Bernadine’s estate.

¶ 20 This appeal followed.

¶ 21 II. ANALYSIS

¶ 22 On appeal, Anthony argues the circuit court’s determination that he was unsuited

-7- to serve as the administrator of Bernadine’s estate because of the hostility between him and his

siblings is against the manifest weight of the evidence. Andrea and John disagree.

¶ 23 Even though a person may be statutorily qualified to serve as an administrator of

an estate (755 ILCS 5/9-1 (West 2020)), and fall within a statutory class entitling them to a

preference to do so (755 ILCS 5/9-3 (West 2020)), that person does not have an absolute right to

serve as an administrator. In re Estate of Garbel, 142 Ill. App. 3d 1067, 1068, 492 N.E.2d 589,

591 (1986) (citing In re Estate of Abell, 395 Ill. 337, 346-47, 70 N.E.2d 252, 256 (1946)). Instead,

there are additional, nonstatutory considerations, such as the existence of hostility, an adverse

interest, or a conflict of interest, which may render a person who is otherwise qualified unsuitable

to serve as an administrator. See, e.g., In re Estate of Morrissey, 38 Ill. App. 3d 981, 983, 349

N.E.2d 642, 643-44 (1976); see also Estate of Abell, 395 Ill. at 346-47 (“Unsuitableness to

administer may well consist in an adverse interest of some kind, or hostility to those immediately

interested in the estate, whether as creditors or distributees, or even of an interest adverse to the

estate itself.”).

¶ 24 A circuit court’s determination that a person is unsuited to serve as the administrator

of an estate because of hostility between that person and those immediately interested in the estate

will not be reversed on appeal unless it is against the manifest weight of the evidence. See 1350

Lake Shore Associates v. Healey, 223 Ill. 2d 607, 623, 861 N.E.2d 944, 954 (2006) (applying the

manifest-weight-of-the-evidence standard of review where the issue on appeal involved a circuit

court’s factual determination). As our supreme court has explained:

“Under a manifest weight of the evidence standard, we give

deference to the [circuit] court as the finder of fact because it is in

-8- the best position to observe the conduct and demeanor of the parties

and the witnesses and has a degree of familiarity with the evidence

that a reviewing court cannot possibly obtain. A reviewing court,

therefore, must not substitute its judgment for that of the [circuit]

court regarding the credibility of witnesses, the weight to be given

to the evidence, or the inferences to be drawn.” In re D.F., 201 Ill.

2d 476, 498-99, 777 N.E.2d 930, 943 (2002).

A circuit court’s determination will be found to be against the manifest weight of the evidence

“only if the opposite conclusion is clearly evident [citation] or the determination is unreasonable,

arbitrary, or not based on the evidence presented.” Id. at 498.

¶ 25 Before turning to the circuit court’s determination that is in controversy in this case,

we briefly address an issue Anthony raises—for the first time on appeal—concerning the threshold

level of hostility to find a person unsuitable to serve as an administrator. Anthony posits the

“hostility” between the person seeking to be appointed and those immediately interested in the

estate must be “considerable” before the person seeking to be appointed may be found to be

unsuited to serve as an administrator. In support of that position, Anthony cites In re Estate of

Abell, 329 Ill. App. 73, 80, 67 N.E.2d 294, 297 (1946), a case in which the appellate court stated,

“the preferential right to administer must yield to the discretion of the [c]ourt in unusual cases

where considerable hostility, adversity and conflict of interest appear.” As Andrea and John point

out, the appellate court in that case did not discuss or explain what would qualify as “considerable”

in its decision, nor did the supreme court, in its later decision affirming the appellate court’s

decision (see Estate of Abell, 395 Ill. at 343-48), make any distinction between hostility and

-9- considerable hostility. In any event, even entertaining Anthony’s standard for the purposes of this

appeal that “considerable hostility between [him] and one of the estate beneficiaries must be

present” to find him unsuitable to serve as administrator, we find, for the reasons that follow, there

is sufficient evidence of record to satisfy that standard and sustain the circuit court’s determination.

¶ 26 The evidence of record shows a collaborative effort by Anthony and Joseph to

locate Bernadine’s original will, an effort which was allegedly thwarted by the actions of Andrea

and John. The search of Bernadine’s house for the original will involved the presence of a law

enforcement officer. In fact, we note the record contains an allegation that “all of the interested

parties agreed that law enforcement supervision was a condition precedent for everyone to be

present at the home due to the high level of tension among the family.” The search of Bernadine’s

house also involved Andrea allegedly “guard[ing]” her bedroom door. Joseph explained how “the

circumstances regarding his family and [the] scheduled search made him feel uncomfortable.”

Andrea and John successfully prevented Joseph’s attempt to admit a copy of Bernadine’s will for

probate. By doing so, Andrea lost a specific bequest but prevented Joseph or Anthony from being

executor of Bernadine’s estate. Thereafter, Andrea and John supported the Sangamon County

Public Administrator being appointed administrator, while Anthony and Joseph supported

Anthony being appointed administrator. During the proceedings, both Anthony and Joseph

characterized Andrea as a disabled person in their respective petitions. Anthony specifically

characterized Andrea as such after she and John had already disputed the characterization from

Joseph’s petition. Andrea and John argued the characterization of Andrea as disabled “was an

example of how Andrea is viewed and had been treated by Anthony and Joseph.”

¶ 27 The circuit court was in a unique position of evaluating the evidence of record after

- 10 - having had multiple opportunities to observe the conduct and demeanor of the Mikels siblings in

the courtroom. In fact, during one of those opportunities, the court was called upon to evaluate the

credibility of Joseph. While Anthony presents non-hostile explanations for the evidence of record,

we find the circuit could have reasonably determined, based upon its consideration of all the

evidence of record taken together, Anthony was unsuited to serve as the administrator of

Bernadine’s estate because of the considerable hostility between him and his siblings. As such, we

need not consider the alternative arguments from Andrea and John that the court’s unsuitability

determination can also be sustained as a result of an apparent conflict of interest and adverse

interest between Anthony and his siblings.

¶ 28 In reaching this decision, we note Anthony, in the concluding paragraph of his

initial brief, contends, “The circuit court cannot make determinations based on arguments made

by counsel or evidence presented at prior hearings that does not relate to the issues before the

circuit court.” Anthony provided, however, no reasoned argument or authority in support of his

contention. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Moreover, the record indicates Andrea

and John invited the court to consider “the existing record of th[e] proceedings” when ruling on

the competing petitions for letters of administration, an invitation to which no objection was made

by Anthony. Based upon both the lack of argument and objection, Anthony’s contention does not

merit further consideration.

¶ 29 III. CONCLUSION

¶ 30 We affirm the circuit court’s judgment.

¶ 31 Affirmed.

- 11 -