Olney Trust Bank v. Hoelscher

554 N.E.2d 718, 197 Ill. App. 3d 414, 143 Ill. Dec. 783, 1990 Ill. App. LEXIS 588
CourtAppellate Court of Illinois
DecidedApril 26, 1990
Docket5-89-0012
StatusPublished
Cited by17 cases

This text of 554 N.E.2d 718 (Olney Trust Bank v. Hoelscher) 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
Olney Trust Bank v. Hoelscher, 554 N.E.2d 718, 197 Ill. App. 3d 414, 143 Ill. Dec. 783, 1990 Ill. App. LEXIS 588 (Ill. Ct. App. 1990).

Opinion

JUSTICE HARRISON

delivered the opinion of the court:

Helena Jessman died on July 27, 1985, leaving a will dated March 27, 1981, which bequeathed all her property to respondent Connie J. Hoelscher, and named Sandra Coleman, Connie’s daughter, as contingent legatee and devisee. The will specifically disinherited decedent’s only heir, her sister, Katherine Jessman. Katherine, by the Olney Trust Bank, guardian of her estate and, following her death, executor of her estate, filed a petition to contest the will in the circuit court of Effingham County pursuant to section 8 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. lUP/s, par. 8 — 1).

Petitioner’s “Second Amended Petition to Contest Will,” the subject of this appeal, contains three counts. Count I alleges that the 1981 will of Helena Jessman, admitted to probate by order dated August 8, 1985, was procured through the undue influence of respondent Connie J. Hoelscher. Count II alleges that at the time of executing said will Helena lacked the testamentary capacity to execute a valid will. Count III alleges that numerous inter vivos transfers of property, money and real estate were procured through the undue influence of respondent.

Respondent filed a motion for summary judgment on the petition, and following hearings on August 17 and December 6, 1988, the court granted her motion as to all three counts. Petitioner now appeals the judgment. As to counts I and III, we reverse and remand. However, as petitioner has failed to allege any error arising from the circuit court’s grant of summary judgment as to count II, that portion of the circuit court’s judgment is affirmed.

At the time of her death, Helena Jessman was 90 years old, and Connie Hoelscher was approximately 62. Helena was a school teacher living in Michigan when she met Connie in 1949. Helena and her sister Katherine owned a farmhouse in Kinmundy, Illinois, where they spent their summer vacations together. Connie met Helena while Connie was visiting her mother-in-law, who lived next door to the Jessman sisters. Connie became friends with the sisters and from 1949 until approximately 1959, Connie visited them two or three times a week during Helena’s summer vacations and once visited Helena in Michigan.

Helena’s trips to Kinmundy became less frequent after 1960, and following her retirement in 1966, they stopped altogether. From 1966 to 1980, Connie and Helena’s contact with each other was limited to annual phone calls during the holidays. Helena asked Connie to visit her during this 14-year period, but no visits were made.

In 1980, Helena returned to Kinmundy and purchased a home across town from where Katherine was living. At this point, the sisters owned the majority of their assets jointly with full rights of survivorship. In October 1980, Helena executed a will naming Katherine as her sole heir, legatee and devisee.

In December 1980, Katherine called Connie to tell her that Helena had returned to Kinmundy. Thereafter, Katherine periodically called Connie to ask that she visit Helena or take Helena to her doctors’ appointments. In late February and early March 1981, Katherine called Connie several times and asked that Connie take Helena home with her, which Connie did on at least two occasions for overnight or short stays. Helena was unhappy living alone, and Katherine was unwilling or unable to move Helena in with her. After Katherine suggested placing Helena in a nursing home, the sisters had “a falling out” and Connie permanently moved Helena into her home. Soon afterward, Helena requested that Connie make an appointment with an attorney to draft a new will.

Connie contacted attorney Richard Brummer, who had handled a divorce for Connie in 1972. On March 12, 1981, Connie drove Helena to Brummer’s office and the three met for over an hour. During this meeting, a broad power of attorney was prepared and executed, conferring upon Connie the right to sign checks, execute deeds and transact other business for Helena’s benefit. Brummer also obtained the information necessary to draft a will for Helena. On March 13, 1981, a draft of the new will was mailed to Helena at Connie’s home address. Prior to the execution of the will on March 27, 1981, a second draft of the will was prepared, adding “Article Two,” which reads: “Although I have a sister, Catherine Jessman of Kinmundy, Illinois, it is not my desire to leave any of my estate to her.” Katherine’s name was incorrectly spelled with a “C” in the new will, but was correctly spelled in Helena’s 1980 will.

On March 27, 1981, Connie again drove Helena to Brummer’s office. Brummer reviewed with Helena the will and a separate document designating Connie as Helena’s guardian, and discussed their legal impact with her. Brummer then called in two employees of the firm to witness the execution of the will. It is unclear from the record whether Connie was present when the will was signed. Although Connie stated that she was present, Brummer and the two witnesses did not recall her being present.

Between March 1981 and March 1982, the joint ownership of assets between Helena and Katherine was severed, and Connie became a joint tenant with Helena in the ownership of Helena’s assets. Helena’s lock box and checking accounts were placed in both Connie’s and Helena’s names. In May or June 1981, Helena purchased a home in joint tenancy with Connie, although Connie contributed none of the $70,000 cost. After Connie, her husband and Helena moved into this new home, Connie and her husband sold their home and retained all of the profits. Helena made certain other gifts to Connie between March 27, 1981, and the time of her death, including an outright transfer of 500 shares of AT&T stock.

Following Helena’s move to Connie’s home in March 1981, Connie became Helena’s sole source of transportation. Additionally, Connie handled certain financial affairs for Helena, paid her bills and deposited checks for her, purchased Helena’s clothing and personal items, and otherwise attended to her care. Connie stated, however, that she did not encourage Helena to prepare a new will, nor did she request any gifts from Helena. Connie stated that she was merely carrying out Helena’s instructions in handling her business affairs.

According to the witnesses’ affidavits, at the time Helena executed her will, she “appeared alert and of sound mind and memory” and “did not appear nervous or under any type of *** compulsion from any source.” Brummer, who represented Helena in several transactions subsequent to the execution of the will, noted a general improvement in Helena’s appearance following their first meetings in March 1981. Brummer stated that although Helena had some memory problems, she was a “rather strong-willed individual” who had indicated a dislike for, and a dissatisfaction with, her sister. Indeed, Helena resented Brummer’s suggestion that she meet with Katherine. Although Katherine made repeated attempts to reconcile with Helena, visiting Connie’s home on several occasions, Helena refused to speak with her sister.

Petitioner asserts that the trial court erred in granting summary judgment for respondent on counts I and III, where genuine issues of material fact exist as to whether Helena’s 1981 will and her subsequent inter vivos transfers of property were procured through the undue influence of respondent. We agree. ■

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Bluebook (online)
554 N.E.2d 718, 197 Ill. App. 3d 414, 143 Ill. Dec. 783, 1990 Ill. App. LEXIS 588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olney-trust-bank-v-hoelscher-illappct-1990.