Mills Longenecker v. Ferlita Denker

2026 IL App (4th) 250820-U

• Court: Appellate Court of Illinois
• Decided: March 2, 2026
• Docket: 4-25-0820
• Status: Unpublished

Opinion

NOTICE 2026 IL App (4th) 250820-U FILED This Order was filed under Supreme Court Rule 23 and is March 2, 2026 NO. 4-25-0820 Carla Bender not precedent except in the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

DAKOTA R. MILLS LONGENECKER, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County DEBORAH K. FERLITA DENKER, ) No. 24CH75 Successor Trustee of the Robert C. ) Hauser Declaration of Trust dated ) December 14, 1977; JAYDEN FERLITA; ) ROBERT A. HAUSER; ) Honorable and DANIELLE CLAUSEN, ) Ronald A. Barch, Defendants-Appellants. ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Justices Vancil and Grischow concurred in the judgment.

ORDER

¶1 Held: The appellate court answered the certified question, finding the testamentary exception to the attorney-client privilege does not extend beyond contests to wills or inter vivos trusts and, therefore, does not apply in this action for construction and enforcement of a trust.

¶2 This certified question arises from a dispute over a trust, particularly whether an

individual born out of wedlock, but otherwise the settlor’s biological grandchild, qualifies as a

beneficiary of a generation skipping trust (GST) that the settlor established for grandchildren.

The smaller dispute within this larger trust dispute is the parties’ battle over whether the

attorney’s notes concerning the preparation, creation, and amendment of the trust are

discoverable. Plaintiff, Dakota R. Mills Longenecker, has requested the notes and defendants,

Deborah K. Ferlita Denker, Jayden Ferlita, Robert A. Hauser, and Danielle Clausen, have claimed attorney-client privilege applies to the notes.

¶3 To resolve the smaller dispute and materially advance terminating the larger trust

dispute, the parties ask us to answer the following two questions: (1) Does the testamentary

exception to the attorney-client privilege that has been recognized in will and trust contests also

apply to disputes over the construction of wills or trusts? (2) If the answer to Question 1 is yes,

under what circumstances or conditions would the testamentary exception to the attorney-client

privilege apply in lawsuits to construe a will or trust? For reasons we will explain below, our

answer to Question 1 is no—the testamentary exception to the attorney-client privilege does not

extend to disputes over will or trust construction. Because we answer the first question in the

negative, we need not reach the second question.

¶4 I. BACKGROUND

¶5 Before his death in 1999, Robert C. Hauser executed an amendment and

restatement of the Robert C. Hauser Declaration of Trust (Trust). His surviving spouse and life

beneficiary, Marjorie R. Hauser, died in February 2024, which triggered various provisions in

the Trust and ultimately prompted this litigation. On June 10, 2024, plaintiff filed a complaint for

construction and enforcement of the Trust. Plaintiff’s complaint alleged that “ambiguity in the

definition of child/grandchild in the [Trust] requires construction by the Court to define those

terms under the language of the entire [Trust].” Plaintiff sought a determination that he qualified

as “a grandchild entitled to share *** in the beneficial interest provided under the GST

provisions of the [Trust].” Defendants filed an answer on December 2, 2024, denying most of the

complaint’s allegations. Specifically, defendants denied any ambiguity in the Trust’s definitions

and denied plaintiff was a beneficiary of the GST provisions within the Trust.

¶6 In the course of discovery, plaintiff requested attorney Michael Schappert’s notes

-2- regarding the Trust. When defendants asserted attorney-client privilege, plaintiff moved to

compel production of “the attorney notes used in the Estate planning for the Decedent, Robert C.

Hauser.” Defendants opposed the motion, arguing Illinois law allowed for breaching the

attorney-client privilege in actions to contest a will or trust, but not in actions to construe wills or

trusts, like this one.

¶7 The parties appeared before the trial court to argue the motion to compel on

February 28, 2025. During the hearing, plaintiff’s counsel conceded his client was not contesting

the validity of the Trust and confirmed plaintiff was not claiming undue influence on or

incapacity of the settlor. Counsel noted his client wanted the Trust to be construed and

interpreted to include him as a grandchild and, thus, a GST beneficiary. Counsel maintained

“that the interpretation is the contest” and argued the rationale for breaching the attorney-client

privilege in will or trust contests applied in this case. Defendants’ counsel countered by arguing

this case did not fit into the “narrow exception” for “breaching the privilege” because it was not

a trust contest. After pressing both attorneys on the case law and receiving no satisfying answers,

the court instructed the attorneys to research the law in Illinois and elsewhere for whether the

attorney-client privilege can be overcome when neither party contests the trust and both seek

enforcement.

¶8 The parties returned to the trial court for another hearing on April 17, 2025. Both

attorneys reported fruitless searches, as “neither side found any cases suggesting that this limited

exception to the attorney-client privilege has been specifically addressed in the context of a

request for construction of a will as opposed to trying to undo the will entirely, or the trust in this

case.” Both sides maintained their prior positions, and the court stated it would issue a written

order.

-3- ¶9 On April 29, 2025, the trial court entered a written decision and order, granting

“Plaintiff’s Motion to Compel the production of attorney notes and materials kept in connection

with the creation of the [Trust].” The court acknowledged the case law had not extended the

testamentary exception to actions like the one before it. However, it found “the rationale

supporting the testamentary exception in a will or trust contest setting has equal application to a

dispute among heirs or beneficiaries over rights and entitlements to distributions or allocations

under a will or trust.”

¶ 10 Defendants filed a motion to reconsider or, alternatively, to certify a question to

the appellate court pursuant to Illinois Supreme Court Rule 308(a) (eff. Oct. 1, 2019) or,

alternatively, to hold them in friendly contempt so they may appeal the decision pursuant to

Illinois Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016). The trial court denied the motion to

reconsider but granted the request for a Rule 308(a) finding. See Ill. S. Ct. R. 308(a) (eff. Oct. 1,

2019). Accordingly, the court found its “[o]rder dated April 29, 2025, involves a question of law

as to which there is substantial ground for difference of opinion and that an immediate appeal

from the order may materially advance the ultimate termination of the litigation.” The court

certified two questions:

Question 1: Does the testamentary exception to the attorney-client

privilege that has been recognized in will and trust contests apply to disputes over

the construction of wills or trusts?

Question 2: If the answer to Question 1 is yes, under what circumstances

or conditions would the testamentary exception to the attorney-client privilege

apply in lawsuits to construe a will or trust?

¶ 11 We allowed defendants’ application for leave to appeal pursuant to Rule 308.

-4- ¶ 12 II. ANALYSIS

¶ 13 By definition, certified questions are purely legal in nature, so we review them

de novo and pay no deference to the lower court’s answer. See Scott v. American Alliance

Casualty Co., 2024 IL App (4th) 231305, ¶ 15; Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d

45, 58 (2007); Ill. S. Ct. R. 308 (eff. Oct. 1, 2019).

¶ 14 Before considering an exception to a privilege, which itself is an exception, we

think it prudent to begin with the default rule. Illinois law strongly favors disclosure in judicial

proceedings to aid in discovering truth and resolving disputes. Waste Management, Inc. v.

International Surplus Lines Insurance Co., 144 Ill. 2d 178, 190 (1991). The law, nevertheless,

recognizes some evidentiary exceptions to disclosure, one being the attorney-client privilege.

This privilege is as old as the common law. It provides: “Where legal advice of any kind is

sought from a lawyer in his or her capacity as a lawyer, the communications relating to that

purpose, made in confidence by the client, are protected from disclosure by the client or lawyer,

unless the protection is waived.” Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL

113107, ¶ 30. As an exception to disclosure, the attorney-client privilege serves a valuable role in

our legal system by “encourag[ing] and promot[ing] full and frank consultation between a client

and legal advisor by removing the fear of compelled disclosure of information.” (Internal

quotation marks omitted.) Waste Management, 144 Ill. 2d at 190.

¶ 15 “The attorney-client privilege presumes that a client wishes his communications

with his attorney to remain secret until proved otherwise.” Hitt v. Stephens, 285 Ill. App. 3d 713,

718 (1997). So, generally, unless it is shown an exception applies, the privilege survives the

client’s death, and communications remain private after the client dies. DeHart v. DeHart, 2013

IL 114137, ¶ 69. One exception is relevant here—the testamentary exception, another common

-5- law doctrine our supreme court has called “well settled law.” Brunton v. Kruger, 2015 IL

117663, ¶ 51. This exception renders the attorney-client privilege temporary. “Where an attorney

prepares a will for a client and witnesses the same, the privilege only exists during the lifetime of

the client.” DeHart, 2013 IL 114137, ¶ 69. This “limited exception” arose from the rationale

“that a decedent would (if one could ask him) forgo the privilege so that the distribution scheme

he actually intended can be given effect.” (Emphasis added.) DeHart, 2013 IL 114137, ¶ 69.

¶ 16 To be sure, the testamentary exception has been narrowly applied over the years.

Our supreme court has observed this long-standing exception had been applied only in actions

contesting a will. See Brunton, 2015 IL 117663, ¶¶ 51-54 (citing Wilkinson v. Service, 249 Ill.

146, 150-51 (1911); Lamb v. Lamb, 124 Ill. App. 3d 687, 693-94 (1984); DeHart, 2013 IL

114137, ¶ 69); see also DeHart, 2013 IL 114137, ¶ 73 (finding “this is indisputably a will

contest,” and so “plaintiff will be able to make out a prima facie case on remand that the

attorney-client privilege does not apply because it is subject to the will-contest exception”); Hitt,

285 Ill. App. 3d at 717 (“The only context in which a client’s death might affect the viability of

the privilege is a will contest.”).

¶ 17 The first and only time a court applied the testamentary exception outside a will

contest occurred in Eizenga v. Unity Christian School of Fulton, Illinois, 2016 IL App (3d)

150519, a case involving a challenge to an inter vivos trust. There, the trustee filed an

interpleader action, alleging the settlor’s attorney exerted undue influence on the settlor, which

resulted in the settlor gifting “nearly the entirety of the Trust estate to Unity Christian School.”

Eizenga, 2016 IL App (3d) 150519, ¶ 1. The attorney received a subpoena to produce certain

documents, and he refused, claiming the documents were protected by the attorney-client

privilege and work product doctrine. Eizenga, 2016 IL App (3d) 150519, ¶ 17. The trial court

-6- ordered the attorney to produce the documents, noting this case was similar to a will contest,

where the testamentary exception could negate the attorney-client privilege. Eizenga, 2016 IL

App (3d) 150519, ¶ 18. The attorney refused, the court held him in indirect civil contempt, and

he appealed. Eizenga, 2016 IL App (3d) 150519, ¶¶ 19-20. The Appellate Court, Third District,

affirmed the trial court’s decision applying the testamentary exception in a trust case. Eizenga,

2016 IL App (3d) 150519, ¶ 37.

¶ 18 While the Third District acknowledged Illinois case law “has described the

testamentary exception to the attorney-client privilege as applying only in the context of a will

contest,” it concluded the underlying rationale for the testamentary exception was “of paramount

importance, rather than the question of whether the situation involves a will contest.” Eizenga,

2016 IL App (3d) 150519, ¶ 25. By focusing on the exception’s rationale, it leaned upon

secondary sources, one of which stated: “ ‘[T]he attorney-client privilege does not apply to a

communication from or to a decedent relevant to an issue between parties who claim an interest

through the same deceased client, either by testate or intestate succession or by an inter vivos

transaction.’ ” Eizenga, 2016 IL App (3d) 150519, ¶ 28 (quoting Restatement (Third) of the Law

Governing Lawyers § 81 (2000)); see Michael H. Graham, Graham’s Handbook of Illinois

Evidence § 505.7, at 372 (10th ed. 2010). The sources elaborated on the rationale behind the

testamentary exception, particularly, “ ‘that the decedent would have wished full disclosure to

facilitate carrying out the client’s intentions.’ ” Eizenga, 2016 IL App (3d) 150519, ¶ 28 (quoting

Restatement (Third) of the Law Governing Lawyers § 81 cmt. b (2000)). These sources mirrored

Illinois law, which likewise presumed deceased clients would waive attorney-client privilege in a

will contest “so that the distribution scheme [they] actually intended can be given effect.”

(Internal quotation marks omitted.) Eizenga, 2016 IL App (3d) 150519, ¶ 28. The Third District

-7- found these sources helpful, and it noted “the comments to section 81 of the Restatement (Third)

are instructive: comment (a) states that this section ‘is relevant, for example, in will-contest and

similar litigation.’ ” (Emphasis in original.) Eizenga, 2016 IL App (3d) 150519, ¶ 28 (quoting

Restatement (Third) of the Law Governing Lawyers § 81 cmt. a (2000)). It ultimately deemed

this similar litigation. Eizenga, 2016 IL App (3d) 150519, ¶ 29. And since the Third District

discerned “no material difference between” this case and “a will contest for purposes of the

testamentary exception to the attorney-client privilege,” it held the exception should be applied

in trust contests. Eizenga, 2016 IL App (3d) 150519, ¶ 29.

¶ 19 The Eizenga holding prompted near immediate calls to further expand the

testamentary exception. Morrow v. Pappas, 2017 IL App (3d) 160393, involved a lawsuit

alleging tortious interference with testamentary expectancy. Citing Eizenga, the plaintiffs argued

for the application of the testamentary exception to the attorney-client privilege. Morrow, 2017

IL App (3d) 160393, ¶ 30. The Third District rejected the argument based on factual and

procedural posture, noting, “[W]e do not have an instrument being contested.” Morrow, 2017 IL

App (3d) 160393, ¶ 30. The Third District held that, because “there is no contest to the

distribution scheme” the deceased executed in her will, “we will not apply the narrow exception

to the attorney-client privilege.” Morrow, 2017 IL App (3d) 160393, ¶ 30.

¶ 20 We consider these certified questions against this backdrop, and the parties’

arguments here echo the case law. In arguing, no, the testamentary exception does not apply to

disputes over construction of a will or trust, defendants cite the long-standing precedent

confining the testamentary exception to will or trust contests. In making the counterargument,

plaintiff cites Eizenga and its use of the exception’s rationale to extend it to trusts. Both sides

have good arguments. Both arguments are meritorious. However, considering the law’s current

-8- state, we answer the certified question, no—the testamentary exception to the attorney-client

privilege does not apply to disputes over the construction of wills or trusts.

¶ 21 To the extent Eizenga opened the door to expand the testamentary exception, we

will not push through it. Though technically an interpleader action, Eizenga was essentially a

trust contest. The court acknowledged as much, calling it a “case [that] presents no material

difference between a will contest.” Eizenga, 2016 IL App (3d) 150519, ¶ 29. Indeed, the case

centered upon “a dispute *** between former beneficiaries of the Trust and the current

beneficiary *** based on undue influence that [the] attorney *** allegedly exerted over [the

client].” Eizenga, 2016 IL App (3d) 150519, ¶ 29. Most importantly, the parties sought to have

various trust provisions set aside. Eizenga, 2016 IL App (3d) 150519, ¶ 18. This is hallmark of

will contests.

¶ 22 A trust contest is similar litigation to a will contest in ways a trust or will

construction is not. Under Illinois law, a trust contest does not materially differ from a will

contest. Cleland v. Cleland, 2018 IL App (2d) 170949, ¶ 40 (noting a will contest is like a trust

contest). Both share the same objective, grounds, and remedy. Trust and will contests challenge

the validity of the testamentary document, whether it represents the will or intent of the deceased

testator or settlor, and the remedy for each is setting aside all or part of the document. See Hall v.

Eaton, 259 Ill. App. 3d 319, 321 (1994) (“The issue in a will contest is whether the writing

produced is the will of the decedent; any ground which, if proved, would invalidate the

instrument as a will.”); In re Estate of Luccio, 2012 IL App (1st) 121153, ¶ 23 (“A trust contest

is a challenge to the validity of the document creating it and the remedy in a trust contest is the

setting aside of the trust.”). Some grounds for invalidating the document include undue

influence, fraud, duress, or incapacity. Hall, 259 Ill. App. 3d at 321; Pernod v. American

-9- National Bank & Trust Co. of Chicago, 8 Ill. 2d 16, 20 (1956); see Luccio, 2012 IL App (1st)

121153, ¶ 23 (“[U]nder the Restatement (Second) of Trusts, the law governing the effect of

fraud, duress, undue influence[,] and mistake upon testamentary dispositions is applicable to

testamentary trusts.” (Internal quotation marks omitted.)); 760 ILCS 3/406 (West 2024). Because

trust and will contests are similar actions, it follows that the testamentary exception to the

attorney-client privilege applies to both actions. Stepping back, we see Eizenga did not

significantly expand the exception.

¶ 23 Defendant here, and the trial court below, stressed the rationale for the

testamentary exception, just as the Eizenga court did. Deceased testators or settlors would forgo

attorney-client privilege so the distribution scheme they actually intended could be given effect.

DeHart, 2013 IL 114137, ¶ 69. In this hypothetical situation, the deceased, were he still alive, is

faced with an either-or proposition—disclosure of privileged communications with his attorney

or setting aside the testamentary document and his entire distribution scheme. Of course, it

would be reasonable to suppose the client would waive the privilege in that particular all-or-

nothing scenario: either forgo the privilege to ensure your last wishes are honored or retain the

privilege and expose your estate to the laws of intestacy. But this rationale does not square with

interpreting or constructing or enforcing specific provisions in a will or trust. An action

construing a will or trust does not carry the same risks. What’s more, a decedent, were he still

alive, may not want his heirs to know why certain gifts or bequests were made, and so it would

be reasonable to infer he would not waive the privilege. We have said, “Estate planning is an

extremely personal and private endeavor, and may be based on consideration one would prefer

never to reveal.” Hitt, 285 Ill. App. 3d at 718. Similarly, the client may not freely and fully

communicate with his attorney about estate planning if he knows the communications are not

- 10 - privileged after death. See Hitt, 285 Ill. App. 3d at 718 (“The privilege exists, and persists even

after death, in order that the client may ‘confide freely and fully in his or her attorney, without

fear that confidential information will be disseminated to others.’ ”) (quoting People v. Knuckles,

165 Ill. 2d 125, 130 (1995)).

¶ 24 Though we see merit in plaintiff’s argument emphasizing the rationale behind the

testamentary exception, we ultimately find it unpersuasive. It loses potency when we see it

resulted in the testamentary exception being applied to near identical actions—trust and will

contests—where the entire distribution scheme is at risk of being set aside. The case law is clear,

the testamentary exception to the attorney-client privilege does not apply to disputes over the

construction of wills or trusts. The rationale for the limited testamentary exception does not

persuade us to extend it to cases like this one.

¶ 25 III. CONCLUSION

¶ 26 For the foregoing reasons, we answer the first certified question in the negative

and decline to address the second.

¶ 27 Certified question answered.

- 11 -