Klebba v. O'Connor

359 Ill. App. 3d 114
CourtAppellate Court of Illinois
DecidedJuly 14, 2005
DocketNo. 1—03—3685
StatusPublished
Cited by1 cases

This text of 359 Ill. App. 3d 114 (Klebba v. O'Connor) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Klebba v. O'Connor, 359 Ill. App. 3d 114 (Ill. Ct. App. 2005).

Opinion

PRESIDING JUSTICE REID

delivered the opinion of the court:

The appellant, John Klebba,1 appeals the trial court’s order that granted summary judgment on behalf of Michael O’Connor, the administrator of John Phillips’ estate. On appeal, Klebba argues that: (1) the trial court improperly applied the Dead-Man’s Act (735 ILCS 5/8 — 201 (West 2002)) to bar his testimony and not admit a will to probate that Phillips had allegedly executed in 1987, and (2) section 8 — 501 of the Illinois Code of Civil Procedure (735 ILCS 5/8 — 501 (West 2002)) is unconstitutional. For the reasons that follow, we affirm.

BACKGROUND

Phillips died in August 2001 and his two sons, Stephen and John, petitioned to have his will, dated March 31, 1965 (the 1965 Will), admitted to probate. The relevant portions of the 1965 Will follow:

“I give, devise and bequeath the sum of FIFTEEN THOUSAND ($15,000.00) DOLLARS to THERESA PROIETTO; the sum of FIFTEEN THOUSAND ($15,000.00) DOLLARS to SUNDAE KLEBBA; the sum of FIFTEEN THOUSAND ($15,000.00) DOLLARS to my parents collectively or the survivor of them who may be living at the time of my death; In addition to any proceeds from any insurance policies which may be in effect at my death, the remainder of all my assets real or personal of whatever nature or wherever situated to my children, JOHN C. PHILLIPS and STEVEN D. PHILLIPS, in equal shares, to be given to them at the rate of THREE HUNDRED ($300.00) DOLLARS per month each until the age of twenty-one (21), at which time they will have the corpus or the remainder to them in full. I hereby direct my executor to furnish to them, whenever and wherever necessary, any and all advancements and amounts necessary for school expenditures and including but not limited to tuition, living and other reasonable amounts for their college education. I hereby nominate and appoint FRANK FRIEDMAN as the guardian of the estate of such of my children who shall not yet have attained their majority at the time of my death. In the event that FRANK FRIEDMAN cannot serve by reason of death or infirmity, then I hereby nominate and appoint THERESA PROIETTO as said guardian.” (Emphasis in original.)

Frank Friedman, who is deceased, was nominated as the executor of the estate. On November 8, 2001, letters of office issued to Michael O’Connor, whom the sons nominated to act as independent administrator.

On February 19, 2002, Klebba filed a petition to admit a lost or destroyed will to probate. In his petition, Klebba asserted that on March 12, 1987, Phillips duly executed another will (the 1987 Will), a signed copy of which he appended to his petition. Klebba maintained that the original will was no longer accessible because it was last seen when it was sent to a bank for safekeeping and that, subsequently, the files and records of the bank were seized by the federal government.

After revoking all wills and codicils heretofore made by Phillips, irrespective of the date made, the 1987 Will provided the following bequests:

“I give, devise and bequeath, after the payment of all taxes, the sums as follows: to John Klebba — $400,000.00; to Joseph Proietto— $300,000.00; Theresa Proietto — $250,000.00; to each of my parents (if alive at my death) $100,000.00; Mary Jo Toscano — $150,000.00; Jean Wiegel — $100,000.00; to my sons John and Stephen the remainder equally subject to the following. Because my son John has not matured or shown adequate evidence of accepting life’s responsibility and to avoid a spending spree, I decree that his share shall be in trust under the [surveillance] of my sister Theresa Proietto, who shall be the trustee. Under her trusteeship, she will give John $750 a month for three years; at the expiration of three years, if she deems that he has implemented responsible and industrious habits, he shall receive his share. In the event my son is not deemed as having reasonably learned habits of industry of self-sufficiency, his share shall at the expiration of three years be distributed to my son Stephen and the other beneficiaries in the same proportion as they would have received but for John’s share. My sister shall not unreasonably reach the decision to the detriment of my son John, whom I love very much and who has unfortunately not matured like my son Steve who will probably exceed and surpass me as a lawyer.”

Along with the petition, Klebba submitted an affidavit. In his affidavit, Klebba explained the origin of the 1987 Will and what happened to it after it was executed. The following are the relevant portions of Klebba’s affidavit:

“4. From November 1971 to November 1981, I was employed in my uncle’s law office in various capacities, such as office boy, file clerk, paralegal, bookkeeper and office manager.
5. Upon my licensure as an attorney in November 1981,1 was an attorney employed first by John G. Phillips, Ltd. and later by its corporate successor, John G. Phillips & Associates, until February 1995. During that time, I was present in the office Monday through Saturday and often spoke with my uncle on the phone in the evenings and on Sundays.
***
7. Late one morning in March 1987, I walked into John’s office and saw two of our secretaries, Maria Zohfeld and Betsy Ruley, gathered around John’s desk with him. They had apparently just signed some document.
8. John took up the document and told me, ‘Come with me.’
9.1 followed John to the photocopy/supply room where he placed the document on the photocopy machine and made more than one copy of the document.
10. While the photostat machine was working, John reached into one of the supply cabinets and pulled out a large manila envelope.
12. John took the original document and the copies from the photostat machine. He folded one of the copies in quarters. I saw that the original document bore the title ‘Last Will and Testament.’ The original document was identical to the copy that John gave me as described in Paragraph 13, below.
13. John gave me the folded copy of the document and told me to ‘keep this someplace safe, outside the office.’
14. Next, he took the original of the document and placed it in the manila envelop[e] he had taken from the cabinet and said, ‘I’m going to send this to Alex at the bank for safekeeping.’
15.1 understood this to mean that John was sending the original document to Alex Vercillo who, at the time, was either a vice-president or the president of the Cosmopolitan Bank at 801 N. Clark Street in Chicago.
16.1 saw John write Alex Vercillo’s name and the word ‘Personal’ on the envelop[e] in ink. He closed and sealed the envelop[e].
17. John and I then walked up to the office’s receptionist desk and John placed the envelop[e] in the spot where ‘pick-ups’ for the bank were kept.
18.

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Related

In Re Estate of Phillips
833 N.E.2d 895 (Appellate Court of Illinois, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
359 Ill. App. 3d 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klebba-v-oconnor-illappct-2005.