In re Estate of Short

2020 IL App (4th) 190297-U

• Court: Appellate Court of Illinois
• Decided: April 7, 2020
• Docket: 4-19-0297
• Status: Unpublished

Opinion

NOTICE 2020 IL App (4th) 190297-U FILED This order was filed under Supreme April 7, 2020 Court Rule 23 and may not be cited Carla Bender as precedent by any party except in NO. 4-19-0297 the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re ESTATE OF SARAH L. SHORT, Deceased ) Appeal from ) Circuit Court of (Jeffrey Short, ) Morgan County Petitioner-Appellant, ) No. 18MR71 v. ) Abigail Green, ) Honorable Respondent-Appellee). ) Christopher E. Reif, ) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court. Presiding Justice Steigmann and Justice DeArmond concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, concluding the trial court did not err in dismissing petitioner’s amended complaint.

¶2 Petitioner, Jeffrey Short, appeals the judgment of the trial court, dismissing his

first amended complaint pursuant to sections 2-615 and 2-619 of the Illinois Code of Civil

Procedure (Civil Code) (735 ILCS 5/2-615, 2-619 (West 2018)). Specifically, the court

determined petitioner (1) failed to plead in what capacity he had standing to bring the cause of

action in the matter, (2) sought to enforce an oral contract barred by the statute of frauds, and

(3) failed to adequately plead lack of capacity.

¶3 On appeal, petitioner argues the trial court erred in dismissing his amended

complaint for (1) lack of standing or statute of frauds and (2) failing to sufficiently plead lack of

capacity. For the following reasons, we affirm. ¶4 I. BACKGROUND

¶5 In November 2016, spouses William Robert Short (William) and Sarah Louise

Short (Sarah) executed separate, mutual wills which devised his or her estate to the other and,

upon the death of the surviving spouse, to petitioner and respondent, Abigail Green, in equal

shares. Both wills also left specific gifts to petitioner and respondent upon the death of the

surviving spouse. Neither will contained language regarding revocation. Petitioner is the only

child of William, and respondent is the only child of Sarah.

¶6 In February 2018, William died. In March 2018, Sarah executed a new will—

revoking her November 2016 will—leaving her entire estate to respondent. Sarah also executed

a Transfer on Death Instrument (TODI) of her residence for the benefit of respondent and made

respondent the sole beneficiary of her investment account at Jacksonville State Bank. At that

time, Sarah suffered from stage four cancer. In July 2018, Sarah died.

¶7 After Sarah’s death, petitioner filed (1) a petition for declaratory judgment

alleging the estate planning actions taken by Sarah following William’s death were invalid as a

breach of the irrevocable testamentary contract between Sarah and William created by the

November 2016 wills and (2) a verified emergency petition for preliminary injunction and

temporary restraining order enjoining respondent from “transferring, distributing or otherwise

taking personal possession of any property, real or personal, or any assets of the estate.”

Subsequently, the trial court granted petitioner’s verified emergency petition for preliminary

injunction and temporary restraining order. In August 2018, respondent filed a motion to dismiss

pursuant to sections 2-615 and 2-619 of the Civil Code (735 ILCS 5/2-615, 2-619 (West 2016)).

By agreement, the trial court granted petitioner leave to file an amended complaint.

-2- ¶8 In December 2018, petitioner filed his first amended complaint alleging

(1) breach of contract and (2) lack of capacity. In Count I of his complaint, petitioner asserted

that William’s and Sarah’s November 2016 wills created a contract making each will irrevocable

upon the death of either William or Sarah. Petitioner argued that after William died, Sarah

breached the asserted contract with William by (1) executing a new will revoking her November

2016 will, (2) executing a TODI of her residence for the benefit of respondent, and (3) making

respondent the sole beneficiary of her investment account at Jacksonville State Bank. In Count

II of his complaint, petitioner argued Sarah lacked testamentary capacity—due to her medical

condition—to (1) execute a TODI for her residence and (2) make respondent the sole beneficiary

of her investment account at Jacksonville State Bank.

¶9 In January 2019, respondent filed a motion to dismiss petitioner’s amended

complaint pursuant to sections 2-615 and 2-619 of the Civil Code (735 ILCS 5/2-615, 2-619

(West 2018)). In the motion, respondent argued (1) petitioner failed to plead in what capacity he

had standing to file his complaint, (2) petitioner’s claim was barred by the statute of frauds under

section 2-619(a)(9) of the Civil Code (735 ILCS 5/2-619(a)(9) (West 2018)), (3) petitioner failed

to plead sufficient facts to establish the existence of an irrevocable contract between William and

Sarah, (4) petitioner incorrectly sought declaratory judgment in a breach of contract action, and

(5) petitioner failed to sufficiently plead his lack of capacity claim. Respondent also argued the

Dead Man’s Act barred petitioner from testifying to any conversation with William and Sarah

regarding the alleged contract. In February 2019, petitioner filed a response to respondent’s

motion to dismiss arguing against the assertions in respondent’s motion.

¶ 10 In March 2019, the trial court granted respondent’s motion to dismiss. The court

stated,

-3- “The Court has reviewed the Motion to Dismiss and

[Petitioner’s] Response along with case law provided by way of

memorandum on March 7, 2019. The Court has further heard the

arguments of Counsel. [Petitioner] acknowledges that the will of

Jeffrey Short[sic] and alleged will of Abigail Green[sic] do not

contain language that would make them irrevocable reciprocal

wills. Plaintiff is seeking declaratory Judgment for breach of an

oral contract and to set aside a deed and investment account

transfer for lack of capacity.

[Petitioner] fails to provide support for standing to pursue

these actions. [Petitioner] is also seeking to enforce an oral

contract that is barred by the Statute of Frauds. [Petitioner] has

failed to provide any support or evidence for the ability in this

matter to set aside actions for lack of capacity.

Wherefore, the Motion to dismiss is granted.”

¶ 11 This appeal followed.

¶ 12 II. ANALYSIS

¶ 13 On appeal, petitioner argues the trial court erred by granting respondent’s motion

to dismiss his amended complaint for (1) lack of standing or statute of frauds and (2) failing to

sufficiently plead lack of capacity. As we explain below, we find petitioner failed to plead facts

necessary to state a cause of action as to lack of capacity and breach of contract.

¶ 14 A. Standard of Review

-4- ¶ 15 “A motion to dismiss brought pursuant to section 2-615 of the [Civil Code (735

ILCS 5/2-615 (West 2018))] attacks the legal sufficiency of the complaint.” Grant v. State, 2018

IL App (4th) 170920, ¶ 12, 110 N.E.3d 1089. “When ruling on such a motion, the court must

accept as true all well-pleaded facts in the complaint, as well as any reasonable inferences that

may arise from those facts.” Id. “Nonetheless, a court cannot accept as true mere conclusions of

law or facts unsupported by specific factual allegations.” Id. “A complaint should be dismissed

under section 2-615 only if it is clearly apparent from the pleadings that no set of facts can be

proved that would entitle the plaintiff to recovery.” Id. We review de novo an order granting a

section 2-615 motion to dismiss. See id.

¶ 16 B. Capacity

¶ 17 In his amended complaint, petitioner asserted that Sarah sustained diminished

capacity where she suffered from stage 4 cancer requiring a pain treatment regimen. According

to the complaint, Sarah lacked testamentary capacity to make inter vivos transfers.

¶ 18 Under Illinois law, a person is considered competent until proven otherwise

because “all men are presumed to be of sound mind until the contrary is prove[n].” Donovan v.

St. Joseph’s Home, 295 Ill. 125, 132, 129 N.E. 1, 4 (1920). Moreover, “[s]ickness and infirmity

alone do not show a lack of testamentary capacity.” Sterling v. Dubin, 6 Ill. 2d 64, 74, 126

N.E.2d 718, 724 (1955).

¶ 19 Here, in his amended complaint, petitioner makes conclusory statements and fails

to allege facts supporting his lack of capacity claim. Pleading that Sarah’s illness and pain

medicine consumption defeated her capacity fails to satisfy basic pleading requirements. Missing

are any facts describing how any incapacity manifested itself. Thus, the trial court properly

-5- dismissed count II of petitioner’s complaint for failure to state a cause of action for lack of

capacity.

¶ 20 C. Breach of Contract

¶ 21 Petitioner also asserts that William’s and Sarah’s November 2016 wills created a

contract making each will irrevocable upon the death of either William or Sarah. Therefore,

after William died, Sarah breached the asserted contract with William by (1) executing the

March 2018 will revoking her November 2016 will, (2) executing a TODI of her residence for

the benefit of respondent, and (3) making respondent the sole beneficiary of her investment

account at Jacksonville State Bank. Petitioner asserts he is the beneficiary of the reciprocal wills

and irrevocable contract between William and Sarah. Respondent argues petitioner failed to

plead facts sufficient to establish the existence of an irrevocable contract, and therefore, he lacks

standing as a third-party beneficiary because no such contract exists.

¶ 22 “Mutual wills are the separate instruments of two or more persons, which are

reciprocal in their terms, and by which each testator makes a testamentary disposition in favor of

the other.” In re Estate of Maher, 237 Ill. App. 3d 1013, 1019-20, 606 N.E.2d 46, 51 (1992).

Whether mutual wills are revocable by either party depends on the circumstances and

understanding upon which they were executed. Id. at 1020. Generally, a “will is ambulatory and

may be revoked at any time by the testator during his or her lifetime.” Id. “Thus, mutual wills

which deprive the parties of that right to revoke must be established by clear and satisfactory

evidence of a contract not to revoke.” Id.

¶ 23 “If the circumstances establish that the mutual reciprocal wills were executed

pursuant to such a contract, then they become irrevocable upon the death of one of the testators.”

Id. However, mutual wills are not generally, of themselves, sufficient evidence of a contract.

-6- Rather, the consideration to support the alleged contract must come from outside the wills. Id.

“The mere existence of mutual wills does not give rise to a presumption of a contract, nor are

they evidence that such a contract, in fact, existed.” Id. While a person may enter into a contract

to dispose of her property by will in a particular manner, such contracts are not favored.

“Consequently, the courts require clear and convincing evidence that the mutual wills were

executed pursuant to a binding contract to be irrevocable.” Id.

¶ 24 Here, William and Sarah executed mutual and reciprocal wills which devised his

or her estate to the other and upon the death of the surviving spouse, to petitioner and respondent

in equal shares. Both wills also left specific gifts to petitioner and respondent upon the death of

the surviving spouse. Absent from the wills are any provisions suggesting the parties intended to

enter into a contract making the wills irrevocable. Therefore, the language in William’s

November 2016 will and Sarah’s November 2016 will fail to suggest the formation of an

irrevocable contract between William and Sarah. Ultimately, simply pleading the existence of

mutual and reciprocal wills is insufficient to state a cause of action for breach of contract.

¶ 25 Petitioner also pled that prior to their deaths, both William and Sarah

independently acknowledged and discussed with petitioner and other family members the intent

of their estate plan which was to leave their entire joint estate to petitioner and respondent.

However, the mere allegation that William and Sarah expressed to family members their desire

to leave their entire joint estate to both petitioner and respondent is insufficient to establish the

existence of a contract not to revoke the wills. Such statements fail to suggest any agreement as

to irrevocability.

¶ 26 We find the analysis in Maher supports our resolution in this matter. In Maher,

237 Ill. App. 3d at 1020, Grace and Lawrence Maher executed a mutual and reciprocal will that

-7- “devised all property to the surviving spouse, but if the other spouse predeceased the testator,

then the property was to be divided equally between [the] petitioner and [the] respondent.” After

Lawrence’s death, Grace executed a new will naming the respondent as the sole beneficiary. Id.

at 1016. After Grace’s death, the petitioner contested the new will alleging the will was invalid

due to the existence of prior irrevocable, mutual and reciprocal wills executed by Grace and

Lawrence. Id. at 1015. The petitioner argued that “the wills were executed pursuant to an oral

contract between Grace and Lawrence and that it was their understanding and agreement that

revocation by the surviving spouse so as to disinherit the relative of the other would be a

violation of their agreement.” Id. at 1020. In support of his position, the petitioner alleged

Grace and Lawrence expressed such desire in a conversation with their attorney when they

executed their wills. Id. at 1020-21.

¶ 27 The trial court dismissed the petitioner’s claim, finding he failed to allege

sufficient facts to state a cause of action for the existence of irrevocable, mutual and reciprocal

wills. Id. at 1015. The appellate court affirmed, finding the petitioner failed to allege facts

sufficient to establish (1) an agreement that neither testator could revoke the will after the death

of the other spouse or (2) the existence of an oral contract not to revoke the wills. Id. at 1021.

The court determined that “there [was] nothing in the statement to the attorney or in the wills

themselves which would prove that they further agreed that neither of them had the right to

revocation.” Id.

¶ 28 Similarly, in this case, petitioner failed to allege sufficient facts to state a cause of

action for breach of contract. Thus, the trial court properly dismissed count I of petitioner’s

amended complaint. Given our resolution regarding the capacity and breach of contract issues,

we need not address petitioner’s remaining contentions.

-8- ¶ 29 III. CONCLUSION

¶ 30 For the reasons stated, we affirm the trial court’s judgment.

¶ 31 Affirmed.

-9-