Illinois Appellate Court Reverses Dismissal of Will Contest Regarding an “Interested Person”

The day before Eugene Lay died from lung cancer in January 2016, he allegedly signed a will that revoked his 1979 will. The new will left all of his assets to Delbert Miller. However, when Beverly Kelton, a legatee under the earlier 1979 will, challenged the 2016 testament, a judge in Kankakee County, Ill., granted Delbert Miller’s motion to dismiss based on alleged lack of statutory standing under Section 1-2.11 of the Illinois Probate Act.

Section 8-1(a) of the Illinois Probate Act authorizes attacks on the validity of a will by any “interested person,” as defined in Section 1-2.11. Failure to qualify as an “interested person” for a will contest amounts to a lack of standing that can be presented as an affirmative defense in a motion under Section 2-619(a)(9) of the Illinois Code of Civil Procedure.

Miller argued that Kelton was obligated to prove that she had standing because the 2016 will contained a revocation clause. Miller relied on the dicta in the Illinois Supreme Court case of Estate of Schlenker, 209 Ill.2d 456 (2004). In granting Miller’s motion to dismiss, the trial court also cited the Estate of Koziol, 366 Ill.App.3d 171 (2006), which involved the presumption that a missing will was revoked.

In reversing the ruling in favor of Miller, the Illinois Appellate Court in this case explained that “the trial court’s ruling runs afoul of long-established legal precedent and improperly insulates Lay’s suspect will from the legal challenge of a potentially interested person.”

Lay executed his will one day prior to his death, and he left the entirety of his estate to Delbert Miller who was also nominated as executor of the estate. The will was signed by two witnesses whose signatures are illegible.

A petition to open the estate was filed on March 9, 2016. The will was admitted to probate the next day with Letters of Office as executor issued to Miller.

On Sept. 8, 2016, Kelton timely filed a petition to contest the validity of Lay’s 2016 will. Kelton stated that she was the sister of Lay’s wife, Billie, who had predeceased Lay. The petition alleged that except for a $2,000 gift to Miller, Lay’s previous will had left the entirety of his estate to Kelton and her siblings.

Miller filed a motion to dismiss Kelton’s petition pursuant to Section 2-619, alleging that she lacked standing. The motion also alleged that Kelton was not an interested person under the Illinois Probate Act.

By definition, standing to sue requires an injury in fact to a legally cognizable interest. The standing doctrine requires that a party assert his or her own legal rights and interest, rather than the rights and interest of third parties. The purpose of the standing requirement is to ensure that issues are raised only by parties having the real interest in the outcome of the controversy.

In probate, standing to contest a will comes not from the common law, but from statute. Pursuant to Section 8-1(a) of the Illinois Probate Act, within six months of the admission of a will to probate, any “interested person” may file a petition to contest the validity of that will.

Section 1-2.11 of the Probate Act defines “interested person” as “one who has or represents financial interest, property right or fiduciary status at the time of reference which may be affected by the action, power or proceeding involved, including without limitation an heir, legatee, creditor, person entitled to a spouse’s or child’s award and the representative.”

As to the Schlenker Illinois Supreme Court case, its decisions finds that an heir possesses an unconditional right to contest a will; that court also concluded that the remainder of the decision constituted dicta. Dicta is often part of an appellate opinion that may refer to other case opinions and is therefore not considered having the strength of authority.

The appeals panel stated that, “We read Schlenker less as establishing a new rule that all prior revoked wills must be considered void than as reaffirming the well-established rule that all inferences must be drawn in the plaintiff’s favor when considering a Section 2-619 motion to dismiss.”

In this case, it was argued that in reading Schlenker, the decision would by rule effectively foreclose any legatee under a prior will from contesting the will, admitted to probate, which disinherits him or her. This is neither the effect nor the intent of long-settled Illinois law.

In this case, the will contest petitioner, Kelton, has alleged that she was a named beneficiary, legatee and a successor executor under a will executed by the decedent in 1979 and in effect until the day before his death when he purportedly executed the will that had been admitted to probate. Kelton claimed that the 2016 will was executed without Lay’s testamentary capacity and was the product of undo influence.

The question presented to the appellate court is whether the petitioner has standing as a legatee under the decedent’s immediately preceding will to pursue a will contest; in other words, whether Kelton had a “financial interest, property right or fiduciary status to the time of reference which may be affected by the action, power or proceeding involved.” 755 ILCS 5/1-2.11.

Concluding, it was stated that Kelton does have standing in this case if she has something financial to gain or to lose if she does not prevail in the will contest. Respondent was able to convince the trial court that under Schlenker, the 2016 will presumptively revoked the 1979 will and that the 1979 will was unrevoked at the time of Lay’s death. However, the trial court’s ruling and Miller’s argument on appeal are premised on inapposite case law.

In the case of In re Estate of Koziol, 366 Ill.App.3d 171 (2006), it was stated that:

“Where a last will and testament, after its execution, is retained by the testator and cannot be found upon his death, it is the well-settled rule of this and of the majority of jurisdictions that it will be presumed to have been destroyed by him animo revocandi. The same cases establish that the presumption is subject to being rebutted by circumstances which tend to show a contrary conclusion, and that the burden is on one seeking to probate such a will to prove that it was unrevoked at the testator’s death.’

In this case, Kelton was not attempting to probate the 1979 will; she was attempting to challenge a will offered to probate by Miller. Accordingly, Koziol has no application to the case here.

When ruling on a Section 2.619 motion to dismiss for an alleged lack of standing, all well-pled allegations in the complaint are taken as true, all presumptions and inferences are drawn in favor of the non-moving party (Kelton) and it is the burden of the moving party (Miller) to prove the lack of standing.

As the movant, Miller was not entitled to the presumption of the 1979 will’s invalidity. Further, Ms. Kelton was not required to prove she had standing to contest the 2016 will.

These principles were not followed in this case. As a result, the trial court’s ruling runs afoul of long-established legal precedent and improperly insulates Lay’s suspect will from the legal challenge of the potentially interested person. For those and other reasons, the Illinois Appellate Court reversed the trial court finding in that it had erred when it granted Miller’s Section 2-619 motion to dismiss. The case was reversed and remanded for further proceedings.

Kelton v. Miller, 2018 IL App (3d) 170378 (Sept. 18, 2018).

Kreisman Law Offices has been handling probate litigation, guardianships in probate court, commercial litigation, businesses, corporations, and partnerships creation and business disputes, lawsuits for individuals, families and businesses for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Glencoe, Northfield, Hinsdale, Naperville, Aurora, Joliet, Elgin, Lake Forest, Lake Bluff, Lake Zurich, Zion, Frankfort, Romeoville, Bolingbrook, Chicago (Archer Heights, Lawndale, Garfield Park, Humboldt Park, Logan Square, Polish Village, Jefferson Park, Edgebrook, Norwood Park, Edison Park, Andersonville, Edgewater, Roscoe Village, Canaryville, Hyde Park, Avalon Park, Calumet Heights), Evergreen Park, Blue Island and Chicago Ridge, Ill.