Ernest v. Chumley

• Decision Date: 10 August 2010
• Docket Number: No. 4-09-0663.,4-09-0663.
• Citation: 936 N.E.2d 602,344 Ill.Dec. 73,403 Ill.App.3d 710
• Parties: Deborah D. ERNEST and John P. Sonneborn, Plaintiffs-Appellants, v. Dorothy L. CHUMLEY, f/k/a Dorothy L. Sonneborn, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

936 N.E.2d 602
403 Ill.App.3d 710
344 Ill.Dec. 73

Deborah D. ERNEST and John P. Sonneborn, Plaintiffs-Appellants,
v.
Dorothy L. CHUMLEY, f/k/a Dorothy L. Sonneborn, Defendant-Appellee.

No. 4-09-0663.

Appellate Court of Illinois,
Fourth District.

Aug. 10, 2010.

936 N.E.2d 603

David E. Leefers (argued), of Leefers Law Offices, of Jacksonville, for appellants.

Michael A. Fleming (argued), of Michael A. Fleming, P.C., of Peoria, for appellee.

Justice STEIGMANN delivered the opinion of the court:

344 Ill.Dec. 74, 403 Ill.App.3d 710

Plaintiffs, Deborah D. Ernest and John P. Sonneborn, appeal from the trial court's August 2009 order denying, in part, their complaint to

403 Ill.App.3d 711

construe a will. Deborah and

344 Ill.Dec. 75, 936 N.E.2d 604

John argue that the court erred by finding that the mutual will executed by defendant, Dorothy L. Chumley, f/k/a Dorothy L. Sonneborn, and their since-deceased father, Robert A. Sonneborn, was not enforceable during Dorothy's lifetime. We affirm and remand with directions.

I. BACKGROUND

A. The Undisputed Facts

In October 1989, Robert and Dorothy married, each having had two children from a previous marriage. (Dorothy did not give birth to any children during her marriage to Robert.)

In August 2000, Robert and Dorothy each executed mutual wills that, with the exception of references to name and gender, contained identical reciprocal clauses. In particular, Dorothy's mutual will stated, in pertinent part, the following:

"ARTICLE II

In the event my husband, ROBERT A. SONNEBORN, shall survive me for a period of at least [30] days, I give him the rest, residue[,] and remainder of my estate, of whatever nature and wheresoever located. Should my said husband so survive me, I expressly make no provision for any of my children.

* * *

ARTICLE IV

Since my husband and I each have children from a prior marriage, it is our intent that upon the death of the survivor of us, that my estate or his estate, as the case may be, be divided one-half to my children and one-half to his children designated as beneficiaries in Article III. Accordingly, it is further our intent that upon the death of the first of us, the terms of the will of the surviving spouse shall become irrevocable."

In April 2003, Robert died, owning assets in joint tenancy with Dorothy valued at approximately $200,244, which included their home and several bank accounts. Two months after Robert's death, Dorothy executed a new will that bequeathed her entire estate to her biological children.

In December 2004, Dorothy married Thomas Chumley. The following month, Dorothy executed another will, in which she bequeathed her entire estate to (1) Thomas and, should he predecease her, then to (2) her biological children and Thomas's two children in equal shares. In February 2006, Dorothy sold the home she had shared with Robert, depositing the net proceeds of approximately $103,901 into a revocable trust account that she had held in joint tenancy with Robert but now

403 Ill.App.3d 712

held solely in her name. (Before Dorothy deposited the aforementioned proceeds, her trust account balance was $980.) One week later, Dorothy withdrew $96,951 from her trust account and deposited various sums totaling the withdrawal amount into three separate certificates of deposit that she held in joint tenancy with Thomas.

B. Procedural History

In October 2004—two months before Dorothy married Thomas—Deborah and John filed a complaint to construe the will, requesting that the trial court (1) find Dorothy's August 2000 mutual will irrevocable, (2) order Dorothy to itemize the assets she owned with Robert immediately before his death, and (3) impose a constructive trust, prohibiting (a) Dorothy from making gratuitous transfers of those assets and (b) Thomas's or Dorothy's future spouses from making any statutory claims on the itemized assets.

At a December 2008 bench trial, Dorothy testified that her understanding of her August 2000 mutual will was that (1) upon Robert's death, she could use the remaining

344 Ill.Dec. 76, 936 N.E.2d 605

estate for her comfort, support, maintenance, and welfare during her lifetime; (2) upon her death, her estate, if any, would be divided equally among their four children; and (3) if Robert had survived her, her children would not have been entitled to control Robert's estate. Dorothy acknowledged that her June 2003 will, which left her entire estate to her biological children, was contrary to her intent as stated in her August 2000 mutual will.

Following the presentation of evidence and argument, the trial court permitted the parties to file additional briefs in support of their respective positions. In August 2009, the court entered the following ruling:

"As agreed by the parties, the facts are basically not in dispute. The issues revolve around the intent of the parties and whether [Dorothy's] will * * * became irrevocable upon [Robert's] death * * *.

Based on the wills themselves and [Dorothy's] trial testimony * * *, the [c]ourt finds her will * * * became irrevocable on [Robert's] death.

Moreover, the [c]ourt finds all the property of the survivor at the time of his or her death was subject to the testamentary scheme regardless of how obtained.

* * *

The wills appear to give the survivor the unfettered right to use the property as each saw fit. There is absolutely no restriction in the wills on the use by the survivor.

[Deborah and John] are asking this [c]ourt to do something not provided for in the wills.

403 Ill.App.3d 713

The [c]ourt finds the contract is not enforceable against Dorothy during her lifetime as the will [is not] specific as to how [Dorothy is] to use her property during her life.

This [c]ourt declines to impose such a restriction.

The relief requested by [Deborah and John] is denied."

This appeal followed.

II. THE APPLICABILITY OF DOROTHY'S MUTUAL WILL DURING HER LIFETIME

A. The Legal Implications of Mutual Wills

Mutual wills are the separate instruments of two or more testators that contain reciprocal terms such that each testator disposes of his or her respective property to the other. In re Estate of Erickson, 363 Ill.App.3d 279, 281-82, 299 Ill.Dec. 372, 841 N.E.2d 1104, 1106 (2006). In contrast, a joint will is a single instrument that contains the wills of two or more persons, and may be considered mutual if it contains reciprocal provisions. Erickson, 363 Ill.App.3d at 281-82, 299 Ill.Dec. 372, 841 N.E.2d at 1106. In the case of mutual and reciprocal wills, " 'a judicial presumption arises in favor of the existence of the contract from the existence of the mutual wills themselves.' " In re Estate of Aimone, 226 Ill.App.3d 1057, 1063, 168 Ill.Dec. 772, 590 N.E.2d 94, 98 (1992), quoting In re Estate of Kritsch, 65 Ill.App.3d 404, 408, 21 Ill.Dec. 756, 382 N.E.2d 50, 53 (1978). A contract embodied in a mutual will becomes irrevocable as to the survivor upon the death of the first testator. Freese v. Freese, 49 Ill.App.3d 1041, 1044, 7 Ill.Dec. 692, 364 N.E.2d 983, 985 (1977).

B. Deborah and John's Claim That Dorothy's Mutual Will Implicitly Restricted Her Use of Certain Assets During Her Lifetime

We first note that Deborah and John do not contest the trial court's findings that

344 Ill.Dec. 77, 936 N.E.2d 606

(1) in April 2003, Dorothy's mutual will became irrevocable because of Robert's death; (2) the expressed terms of Robert's and Dorothy's mutual wills (a) did not restrict Dorothy's use of the assets during her lifetime and (b) show that Robert and Dorothy entered into a contractual agreement; and (3) regardless of how Dorothy obtained...