Estate of Dossett, In re

• Decision Date: 24 August 1987
• Docket Number: No. 3-86-0629,3-86-0629
• Citation: 159 Ill.App.3d 466,111 Ill.Dec. 418,512 N.E.2d 807
• Parties: , 111 Ill.Dec. 418 In re the ESTATE OF Mary T. DOSSETT a/k/a Mayme Dossett, Deceased (Phoebe Graff, Petitioner-Appellant, v. James Bennet, Individually and as Executor of the Estate of Decedent, and William Bennet, Respondents-Appellees).
• Court: United States Appellate Court of Illinois

Page 807

512 N.E.2d 807

159 Ill.App.3d 466, 111 Ill.Dec. 418

In re the ESTATE OF Mary T. DOSSETT a/k/a Mayme Dossett Deceased (Phoebe Graff, Petitioner-Appellant, v. James Bennet, Individually and as Executor of the Estate of Decedent, and William Bennet, Respondents-Appellees).

No. 3-86-0629.

Appellate Court of Illinois Third District.

Aug. 24, 1987.

Timothy V. Johnson, Johnson, Frank, Frederick & Walsh, Glenn Muller (argued Johnson, Frank, Frederick & Walsh, Urbana, for Phoebe Graff.

Bradford B. Ingram (argued), Heyl, Royster, Voelker & Allen, Peoria, for James Bennet, Mary T. Dossett, William Bennet.

Presiding Justice BARRY delivered the opinion of the court:

Petitioner Phoebe Graff appeals from judgment of the circuit court of Tazewell County granting respondents' motion for a directed verdict at the close of petitioner's case-in-chief and dismissing her complaint. For reasons that follow, we reverse.

Mary T. (Mayme) Dossett, a widow, died on September 27, 1982, at age 84. A will dated March 1, 1982, was admitted to probate on October 29. Petitioner is the sister of the testatrix and her only heir at law. In the March, 1982 will, petitioner was expressly disinherited "not through any lack of affection, but rather [because testatrix did] not wish her to share in [testatrix'] estate." The will bequeathed $1000 to respondent William Bennet and the remainder of the estate to respondent James Bennet, who was also nominated executor.

On March 8, 1983, petitioner filed a complaint to set aside the will on grounds of undue influence and lack of testamentary capacity. The matter proceeded to a jury trial on July 15-16, 1986. Petitioner's evidence established that testatrix resided at the Hopedale Nursing Home from 1979 until her death. She was paralyzed below the waist, and her health during that time was generally poor and deteriorating. Respondents knew testatrix, a retired school teacher, from their childhood. Together, they had farmed testatrix' land since around 1961. In 1980 testatrix gave respondents a power of attorney allowing them to transact business for her. The document was prepared by respondents' attorney, who also witnessed its execution by testatrix.

In April, 1981, another sister, Ruth Davis, died intestate. Petitioner's grandson, Dennis Graff, was selected as the attorney for the Davis estate. Because of the deteriorating health of both Phoebe and Mayme, Dennis suggested that the two surviving sisters jointly disclaim their interests in the Davis estate, thereby avoiding certain inheritance and estate taxes. The sisters agreed to the joint disclaimer, and on August 30, 1981, they executed a joint disclaimer document which was prepared and witnessed by Dennis Graff. After the document was filed, Dennis returned to visit testatrix, and he encountered respondent James Bennet. According to Dennis, James inquired about the joint disclaimer. James stated that he had testatrix' power of attorney and he was upset about the fact that she had signed the document outside his presence. Dennis testified that James then said that he intended to talk with testatrix about revoking the disclaimer because he (James) did not think she should be giving her property away during her lifetime.

It appears that subsequent to this conversation, testatrix executed a will drafted by Dennis Graff in which she nominated her nephew, Harold Graff, as executor and bequeathed her entire estate to petitioner Phoebe Graff. This will was signed and witnessed on October 10, 1981. According to Dennis, testatrix expressed her satisfaction with the will as drafted because it kept the family farm in the family. Dennis further testified that testatrix had complained to him that Jim Bennet was pressuring her to sign another will and that she had no intention of doing so. Finally, Dennis testified that both respondents had acted nervous around him when he (Dennis) encountered them during a visit with testatrix around April of 1982.

The evidence further established that the will executed on March 1, 1982 was prepared by respondents' attorney at no charge to testatrix. At trial, both respondents denied having any knowledge of that will until after testatrix' death. However, a "renunciation" document was procured by James Bennet through his attorney purporting to revoke testatrix' disclaimer of interest in the Davis estate. It does not appear that the renunciation document, executed on March 18, 1982, was ever filed in the Davis estate.

A nurse from Hopedale Nursing Home who had attended the testatrix around the period when she signed the March 1, 1982 will testified that, according to her notes, testatrix was confused and disoriented to place on February 25, 1982. Other evidence indicated that testatrix was depressed and had expressed her desire to die in April, 1982.

According to petitioner's witnesses, testatrix had maintained a loving relationship with petitioner over the years. Respondents, however, testifying under section 2-1102 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-1102), said that testatrix' relationship with her sister "cooled" after testatrix moved into the nursing home. James Bennet testified that petitioner's witnesses were not being truthful in their testimony of the sisters' mutual affection for each other. James also explained that the renunciation document had been procured by him in response to testatrix' complaint to him that she had been signing too many papers and that she feared she had "signed her land away."

According to respondents, testatrix was progressively deteriorating physically during the period that she resided in the nursing home, and was sometimes "down in the dumps," but that she always remained mentally sharp. Both respondents denied having personally paid for the preparation of the March 1, 1982 will.

At the close of petitioner's case-in-chief, respondents moved for a directed verdict. After receiving arguments of counsel, the court explained in extensive detail its decision in favor or respondents, pertinent parts of which follow:

"Now, we have evidence here that Mrs. Dossett, contemporaneously with March of 1982 and for some time prior thereto was physically disabled.... We have had some evidence that there might have been periods ... of disorientation, but we have also had evidence that she was alert, ... was depressed....

"That doesn't mean that she doesn't have a sound mind and memory. And there's nothing here to show, ... either directly or circumstantially that on this particular date at the time this will was executed that somehow she didn't know what she was doing.

"And the one witness that we heard from really wasn't asked many questions about that matter.

"As to the matter ... of the allegations that the will was procured at the time when the person lacked testamentary capacity, ... I do not believe that we can say from this evidence that certainly it's more probably true than not true that she lacked testamentary capacity. I deem as a matter of law that that decision cannot be made.

"And, therefore, on the ground alleged that Mary Thorne Dossett or Mayme Dossett lacked testamentary capacity on March 1, 1982 to make a will, the Court would simply hold and direct that in effect she did have testamentary capacity.

"This raises the matter of undue influence. Now, one witness, a grandson of the contestant here, has ... testified that the testatrix ... told him that the respondents here were trying to get her to leave them her property. We have that. No one else. And we also have evidence here that for some time prior to March, 1, 1982 these two respondents were, let's face it, looking after Mayme Dossett, looking after her property, tending to her business. Legally they were doing that because of powers of attorney that were granted them by Mayme Dossett.

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"[T]hey occupy with respect to her a special position of confidence or trust. I think we can even refer to it as a fiduciary relationship. If you are more or less physically helpless and you can no longer get out and about and you give someone a power of attorney which gives them power to ... collect your monies and write your checks and go into your lock box, no question you are reposing special confidence and trust in them.

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"And I deem to be the law that if there exists a fiduciary relationship and then something occurs that benefits the fiduciary, the law raises certain presumptions which those people have to rebut.

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* * * "They are now placed in a position where they could have exercised undue influence. The law also requires that the evidence show that ... the Bennets ... received a substantial benefit under the terms of the document. Well, that certainly has been proved; hasn't it. I mean, one of them gets $1000 and the other one gets the rest of the estate and is named the executor.... You've got two things established.

"But with respect to a will in order to raise this presumption there has to be another factor. With respect to a will that is challenged, the evidence must show that either those Respondents prepared the will, which clearly here the evidence shows that they did not, or that they caused it to be prepared. Now, while there is some evidence here that with respect to a certain instrument, Exhibit Four, that was prepared by the Culbertsons, I think the Bennets brought that to their attention. But as far as the will, that was prepared by Mr. Culbertson, who testified...