Miller v. Miller

544 N.E.2d 1279, 189 Ill. App. 3d 171, 136 Ill. Dec. 504, 1989 Ill. App. LEXIS 1504
CourtAppellate Court of Illinois
DecidedOctober 2, 1989
DocketNo. 2—88—1264
StatusPublished
Cited by1 cases

This text of 544 N.E.2d 1279 (Miller v. Miller) 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
Miller v. Miller, 544 N.E.2d 1279, 189 Ill. App. 3d 171, 136 Ill. Dec. 504, 1989 Ill. App. LEXIS 1504 (Ill. Ct. App. 1989).

Opinion

JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, John L. Miller, filed a petition to contest the will of his father, John H. Miller, that was admitted to probate. Decedent’s other son, Charles Miller, defendant, is executor. Plaintiff alleged (1) decedent was not of sound mind and memory when he signed the will; and (2) defendant asserted undue influence over decedent. Plaintiff’s motion for a directed verdict at the close of the evidence was denied. The jury found that the will was valid, and plaintiff’s motion for judgment notwithstanding the verdict or a new trial was denied.

On appeal, plaintiff raises essentially three issues: (1) whether the defendant was required under a will-contest proceeding to prove that decedent was of sound mind and memory when he signed the will; (2) whether the trial court erred in ruling that a tape recording consisting of telephone answering machine messages left by decedent was inadmissible under the Dead Man’s Act (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 201); and (3) whether the jury’s verdict should be reversed because it is against the manifest weight of the evidence. We affirm.

At trial, the parties stipulated that a copy of decedent’s will dated June 6, 1985, was a true and accurate copy of the last will and testament of decedent. The will left decedent’s entire estate to his son, Charles, and specifically excluded plaintiff from receiving any of the estate. The will was admitted into evidence along with an attached witnesses’ affidavit.

The testimony of the witnesses is summarized as follows.

Plaintiff testified that in October 1984 his father called him and left two messages on his answering machine. Up until this time he spoke with his father a couple times a year. After the phone messages in October, he spoke with his father every weekend and holidays. On April 20, 1985, he left his home in Florida to visit his father in Illinois. His father, 87 at this time, appeared weak and tired. He was forgetful and could not carry on a conversation. He had a lesion on his nose from cancer. In May 1985, plaintiff visited his father again to take him to the hospital for an operation on his nose. His father, however, refused to go to the hospital. On May 5, 1985, his father told a police officer that plaintiff had tried to kidnap him. Plaintiff said he had not tried to kidnap his father. A week later, his father called and said that his son Charles was trying to poison him by sprinkling powder in his apartment and putting toothpicks in his heels; he told him he called the fire department.

Police officer Philip Wander testified he responded to a call for assistance at decedent’s residence on August 12, 1985. Decedent complained to him that his son was placing caustic material in his apartment, causing his eyes to water and causing him difficulty breathing. Wander found nothing in the apartment to cause these symptoms. He made a referral to the health and human resources department because he believed decedent was having some mental problems.

Fire Captain Charles Staffeldt testified that on August 7, 1985, he went to decedent’s residence to check on a report of a smell or smoke in the residence. Decedent complained that his eyes were burning from something in his apartment. Staffeldt was unable to find any fumes or smoke in the apartment.

Dr. John Adams testified for plaintiff as an expert in psychiatry. He had reviewed decedent’s hospital records, records from a nursing home, and a tape of messages left by decedent on plaintiff’s answering machine. One record from a hospital dated August 30, 1985, reported that decedent suffered from senile dementia. The report stated decedent had a history of becoming increasingly confused over the last several months. Another record from a nursing home dated September 18, 1985, reported decedent was at times confused and hallucinated. He was fearful, suspicious, and demanding. It also stated that the date of the onset of confusion was July 1985. Dr. Adams testified that the conditions of decedent did not arise overnight, but were reflective of an extended period of development. It was his opinion decedent did not have the capacity to appreciate the nature of his assets and to make a considered plan for their distribution upon his death when he made his will on June 6,1985.

Charles Miller testified for defendant. He spoke to his father every day and visited him almost every Saturday up until August 30, 1985, when his father was hospitalized. In September and October 1985, he and his wife added their signatures to decedent’s bank account signature cards, but they had no authority over decedent’s accounts prior to September 1985. He identified a group of canceled checks from decedent’s account dated from January 2, 1985, to September 7, 1985. He testified that with the exception of the last five, which were written by him at the end of August and beginning of September, the checks were written and signed by decedent. The last check written by decedent was a check to Illinois Bell dated August 10, 1985. Charles testified that he contacted his attorney to draft the will for decedent, and the will was signed in Charles’ house. He never discussed the contents of the will with his father prior to June 6, 1985.

John Knox testified he witnessed decedent sign his will on June 6, 1985, at Charles Miller’s house. He stated he had a conversation with decedent after he witnessed the signing and that decedent actively participated in the discussion.

Helen Knox testified she witnessed decedent sign his will on June 6, 1985. She stated she stayed at the house after witnessing the will and had a conversation with decedent.

Plaintiff first contends the trial court should have granted a directed verdict and judgment notwithstanding the verdict because defendant failed to rebut his prima facie case. A verdict should be directed only when all of the evidence viewed most favorably to the opponent overwhelmingly favors the movant so that no contrary verdict could stand. (Sloan v. O’Dell (1987), 159 Ill. App. 3d 268, 272; Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494.) Plaintiff argues that after he established a prima facie case, the burden of proof shifted to defendant to prove the validity of the will by proving the statutory requirements of section 6 — 4 of the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. llOhk, par. 6 — 4), specifically, that decedent was of sound mind and memory when he signed the will (Ill. Rev. Stat. 1987, ch. llOVz, par. 6-4(a)(3)).

Plaintiff’s interpretation of the burden of proof in a will-contest proceeding is misguided. Plaintiff cites Sternberg v. St. Louis Union Trust Co. (1946), 394 Ill. 452, which held that the validity of a will in a will-contest proceeding is tried de novo, and the earlier order of admitting the will is of no force. (Sternberg, 394 Ill. at 461.) In a later case, however, the supreme court explained that a proponent of a will is not required in a will-contest proceeding to prove the statutory requirements of the will. In Metzger v. Mowe (1956), 8 Ill. 2d 274, 277-79, the court stated:

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Cite This Page — Counsel Stack

Bluebook (online)
544 N.E.2d 1279, 189 Ill. App. 3d 171, 136 Ill. Dec. 504, 1989 Ill. App. LEXIS 1504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-miller-illappct-1989.