Estate of Howell v. Howell

• Decision Date: 19 June 2015
• Docket Number: 1–14–0180.,Nos. 1–13–3247,s. 1–13–3247
• Citation: Estate of Howell v. Howell, 36 N.E.3d 293 (Ill. App. 2015)
• Parties: ESTATE OF Donald HOWELL, a Disabled Person, by LaTanya Turks and The Northern Trust Company, as Coguardians of the Estate, Petitioners–Appellants, v. Donald Brenard HOWELL, Respondent–Appellee.
• Court: Appellate Court of Illinois

36 N.E.3d 293

ESTATE OF Donald HOWELL, a Disabled Person, by LaTanya Turks and The Northern Trust Company, as Coguardians of the Estate, Petitioners–Appellants

v.Donald Brenard HOWELL, Respondent–Appellee.

Nos. 1–13–3247

1–14–0180.

Appellate Court of Illinois, First District, Fifth Division.

June 19, 2015.

Ray J. Koenig III, Eric Dorkin, and MacKenzie A. Hyde, Clark Hill PC, and Leonard J. LeRose, Jr., Law Offices of Leonard J. LeRose, Jr., Chicago, for appellants.

Richard L. Swedberg and Donald M. Hodgkinson, Swedberg & Hodgkinson, Chicago, for appellee.

David A. Martin, Chicago, guardian ad litem.

OPINION

Justice McBRIDEdelivered the judgment of the court, with opinion.

¶ 1 Two appeals have been consolidated.In the first one, No. 1–13–3247, the Northern Trust Company and LaTanya Turks, as coguardians of the estate of Turks' adult son, Donald Howell, appeal from an order granting their petition to engage in estate planning but rejecting a proposed plan that would benefit his mother without distributing funds to his father and 10 half siblings who were born to other mothers.We are respectfully referring to Donald by his first name to avoid confusing it with his father's similar name.The statute that authorizes estate planning for an adult disabled ward of the court mandates that the estate guardians' actions shall be “in keeping with the ward's wishes so far as they can be ascertained” and that the “ward's wishes as best they can be ascertained shall be carried out.”755 ILCS 5/11a–18(West 2000).Turks, who has been her son's fulltime caregiver since he was born with severe cognitive deficits in 1991, contends her son's father and the father's 10 other children with other mothers have taken little to no interest in her son and have not been a part of his life.The trial court ruled—as a matter of law—that because Donald was born with profound cognitive deficits and has never expressed testamentary capacity, his wishes could not be ascertained and any estate plan must follow the rules of intestacy.On appeal, the coguardians contend it was error to decide the issue as a matter of law and to refuse to conduct an evidentiary hearing to determine whether it was in Donald's best interests to name his mother as the sole beneficiary.The second appeal, No. 1–14–0180, concerns attorney fees and asks us to determine whether the estate should compensate the coguardians' attorneys for pursuing this appeal.

¶ 2 Donald's profound cognitive impairment dates to his birth on November 15, 1991, with microcephaly, because his mother was exposed to lead during her pregnancy.Turks did not suffer any apparent health effects herself, but on Donald's behalf, she sued her Chicago landlord.A jury awarded Donald $16.5 million.His estate currently exceeds $11 million.

¶ 3 According to a report prepared by a guardian ad litem(hereinafter GAL) when Donald was 17 years old in 2009, Donald required constant supervision and was in need of full guardianship rather than a less restrictive form of guardianship.When the GAL interviewed Donald and posed questions about his care, Donald ignored him and continued to watch television, but when asked about his favorite foods, Donald walked to the refrigerator and returned with three items.Also, Donald “constantly repeat[ed] nonsensical words” during the GAL's visit to the home.Turks said that her teenage son was functioning like a young child in that he would try to dress himself, but usually put his clothes on the wrong way, instead of brushing his teeth he would play with the toothbrush, and because he did not recognize dangers, their entire apartment had to be “child proof.”Donald took prescription medications daily for various conditions.He was attending special classes at a public school and he did homework in the afternoons before getting play time.

¶ 4 Based in part on the GAL's recommendation, in February 2010, the trial court adjudicated Donald to be a disabled person.The court noted in its written order that although “acceptable notice was transmitted” to Donald's father, he did not respond.The court appointed Turks as the guardian of her son's person and appointed Turks and The Northern Trust Company as the coguardians of his estate.

¶ 5 The record also indicates that in 2011, Donald was having difficulty with verbal communication and needed assistance with daily activities including grooming, dressing, eating, and taking medication.Donald attended high school part time where he received physical, occupational and speech therapies and he enjoyed activities at his church, watching sports on television, listening to music, dancing, and arts and crafts.

¶ 6 Turks has been a fulltime caregiver for her only child and is not employed elsewhere.For the past 12 years, an additional caregiver, Tyheshia Wilkins, has resided with Donald and his mother.There are conflicting statements in the record as to whether Wilkins is related to the family.Turks' describes her son's father, Donald Brenard Howell, as follows.Howell has never lived with Turks or Donald.Howell has multiple criminal convictions and was first incarcerated in 1989.For the first 6 1/2 years of Donald's life, Howell was in a federal penitentiary.After being released, Howell visited Donald twice in about 18 months, with each visit lasting approximately 15 minutes.He was then reincarcerated and spent 6 1/2 years in prison.Since his release over six years ago from the second incarceration, Howell has visited Donald at most six times, Howell has never assisted with Donald's daily care, Howell has never “involved himself in any significant respects in Donald's life,” and Howell has contributed only $400 to Donald's support and comfort.

¶ 7 In late 2012, Turks and The Northern Trust Company petitioned the court for direction and authority to proceed with estate planning.Donald's primary care physician gave his opinion that Donald lacked sufficient capacity to transact ordinary business and lacked testamentary capacity.Donald's GAL reported that Donald was not capable of directing the preparation of his estate planning documents and it was the GAL's recommendation that the coguardians prepare and present a revocable trust and pour over will for court approval.

¶ 8 In late 2012, the coguardians petitioned the court to execute the estate planning documents currently at issue.The plan includes the creation of a revocable trust so as to avoid probate proceedings and reduce attorney fees incurred after Donald's death.Under the proposed trust, Donald would be the sole beneficiary during his lifetime with all disbursements subject to court approval.Thus, the procedures currently in place would continue during Donald's lifetime.After his death, his mother would become the beneficiary of the trust corpus.If she did not survive Donald, the alternate beneficiaries would be Wilkins, and then his aunt Laurie, who is Turks' younger sister.Although Donald did not own any property at the time and it is unlikely that any assets will be titled in his name, the proposed plan included a pour over will distributing all assets to the revocable trust.

¶ 9 Turks specified in the petition that she believed Donald's father had several other biological children whom Donald had met “on a few occasions,” but that none of these half siblings maintained a relationship with Donald.Turks contended that because Howell and his other children were not involved in Donald's life, the distributive portions of the proposed estate plan were “consistent with Donald's wishes so far as they can be ascertained.”Under the rules of intestacy in Illinois, if Donald were to die survived by his parents and half siblings, the parents and siblings would inherit Donald's intestate property in equal shares, except that if only one parent was living, that parent would get a double share.755 ILCS 5/2–1(d)(West 2000).The court ordered Donald's father to compile the names of all his children and their mothers and the contact details for the children.The list Howell submitted indicates that he has had 11 children with 11 different woman, that all but 1 of the children were born between 1985 and 1991, that Donald is his tenth child, and that the last child was born in 2013(during these proceedings).In January 2013, the coguardians used the compiled list to notify Howell and Donald's 10 half siblings of the pending petition.Howell is the only individual who responded.

¶ 10 Response briefs followed.In his response, the GAL proposed that because it was impossible to determine Donald's wishes, any distributive portion of the estate should follow the intestacy statute.

¶ 11 In September 2013, the trial court ordered the coguardians, over their objection, to prepare an estate plan in which the distribution of assets after Donald's death would be consistent with the laws of intestacy.Therefore, if Donald were to pass away today, under the estate plan ordered by the trial court, Donald's assets would be split into 12 shares so that Turks, Howell, and Howell's 10 other children with different mothers would all receive equal shares.755 ILCS 5/2–1(d)(West 2000).The court allowed the coguardians to specify in the trust, pour over will, and assignment that were created that the court had preserved Turks' rights under section 2–2 of the Probate Act of 1975(755 ILCS 5/2–2(West 2000) ), which provides for the probate court to reduce or eliminate distribution to a parent who has willfully neglected, deserted, or failed to provide support to a child.The court's order indicates its final determination was appealable within the meaning of Supreme Court Rule 304(a)(Ill.S.Ct. R. 304(a)(eff. Feb. 26, 2010)) and the coguardians have timely appealed from that order.The trial court next considered a fee petition filed by counsel for coguardian The Northern Trust Company.The court awarded fees from the estate for the legal work leading up to the court's ruling in September 2013, but...