Estate of Signore, In re

• Decision Date: 19 November 1986
• Docket Number: No. 86-0143,86-0143
• Citation: 103 Ill.Dec. 261,149 Ill.App.3d 904,501 N.E.2d 282
• Parties: , 103 Ill.Dec. 261 In re the ESTATE OF Marcyanna SIGNORE, f/k/a Marcyanna Swiatek, Deceased (Angelo Signore, Petitioner-Appellee, v. Margaret Kieskowski, Executor of the Estate of Marcyanna Signore, f/k/a Marcyanna Swiatek, Respondent-Appellant).
• Court: United States Appellate Court of Illinois

Page 282

501 N.E.2d 282

149 Ill.App.3d 904, 103 Ill.Dec. 261

In re the ESTATE OF Marcyanna SIGNORE, f/k/a Marcyanna Swiatek, Deceased (Angelo Signore, Petitioner-Appellee, v Margaret Kieskowski, Executor of the Estate of Marcyanna Signore, f/k/a Marcyanna Swiatek, Respondent-Appellant).

No. 86-0143.

Appellate Court of Illinois,

First District, Third Division.

Nov. 19, 1986.

Donald A. Carr. Carr & O'Rourke Assoc., Chicago, for respondent-appellant.

Sidney J. Goldstein, Chicago (Sidney Z. Karasik, of counsel), for petitioner-appellee.

Justice McNAMARA delivered the opinion of the court:

Respondent Margaret Kieskowski, executor of the estate of Marcyanna Signore, appeals from a trial court order in favor of petitioner Angelo Signore, decedent's second husband. The trial court found that decedent's will was not a joint and mutual will made by decedent and her first husband, who predeceased her, and that petitioner could therefore renounce decedent's will and receive one-half of the estate. The court also found that petitioner was entitled to $10,000 as a statutory spouse's award.

On December 21, 1973, decedent and her first husband, Stanley J. Swiatek, executed a single testamentary instrument. Swiatek died on October 27, 1975, and decedent subsequently married petitioner. Decedent died on January 25, 1985, leaving petitioner as her only surviving heir. No children were born from either marriage, but petitioner had children from a previous marriage.

The will is entitled "Last Will and Testament of Stanley J. Swiatek and Marcyanna M. Swiatek." The relevant portions of the will include an introductory paragraph which states: "[T]his instrument [is] to be our Last Will and Testament, with full reservation by both or either of us to change the terms hereof at any time * * *." Paragraph one directs that "all our respective just debts and funeral expenses be paid out of our respective estates as soon after our deaths as conveniently possible." Paragraph two states that "I, Stanley J. Swiatek, hereby give * * * my property as follows," and proceeds to make specific bequests of his tools, compressor and fishing poles, with the remainder of the estate to his spouse "as her own absolute property." Paragraph three states that, "I, Marcyanna M. Swiatek, hereby give * * * my property as follows," and proceeds to make specific bequests of her car to her husband, and all jewelry, furs and personal apparel and articles to her mother, with the remainder to her spouse "as his own absolute property." Paragraph four recites: "Upon the death of the survivor of us, or in the event of our simultaneous deaths, the survivor of us, or we, do hereby give, devise, and bequeath all of our property, of whatever nature, whether personal, real property, or mixed, as follows." Paragraph four goes on to grant specific bequests of personal property to five people, with the remainder to respondent. Paragraph seven states that Swiatek has three children, and that none of them shall share "in this, my estate." The will's attestation clause refers to "their Joint Last Will and Testament."

On March 8, 1985, letters of office were issued to respondent as the named executor under the will. Respondent is also decedent's mother and a legatee under the will. Petitioner filed a renunciation of decedent's will, and elected to take his one-half share of decedent's estate as the surviving spouse. Petitioner subsequently asked the court for a spouse's award and for a finding that he was entitled to receive one-half of the estate. Respondent filed an inventory showing that decedent's estate was valued at $94,300.

After hearing arguments, the court found that the will is a joint will, and not a joint and mutual will because it permits either testator to change the terms of the will at any time. Moreover, the court found that even if it had been a joint and mutual will, petitioner would still be entitled to a surviving spouse's award. The court awarded petitioner his one-half share of the estate, and $10,000 as the minimum statutory amount which can be awarded to a surviving spouse. Subsequently, the court denied respondent's motion to vacate the order.

The principal issue of the case is whether the trial court erred in concluding that the 1973 will was not a joint and mutual will which became irrevocable upon the death of decedent's first husband. A joint will is a single testamentary instrument which contains the will of two or more persons, is executed jointly, and disposes of property owned jointly, in common or in severalty by the testators. (Bonczkowski v. Kucharski (1958), 13 Ill.2d 443, 150 N.E.2d 144.) A joint will may or may not be mutual.

A joint and mutual will is a single testamentary instrument which contains the wills of two or more persons and is executed pursuant to a contract between the testators requiring the survivor of them to dispose of the property as the will's provisions instruct. The joint and mutual will itself may comprise the contract. (In re Estate of Schwebel (1985), 133 Ill.App.3d 777, 88 Ill.Dec. 887, 479 N.E.2d 500.) Upon the death of one of the testators, the will becomes irrevocable, the survivor is estopped from disposing of the property in a manner other than under the terms of the will, and third party beneficiaries may enforce the contract. (Rauch v. Rauch (1983), 112 Ill.App.3d 198, 67 Ill.Dec. 785, 445 N.E.2d 77.) The party arguing that the will is joint and mutual has the burden of establishing this point and it must be done by clear and convincing evidence. (In re Estate of Mueller (1975), 26 Ill.App.3d 163, 324 N.E.2d 674.) Although it has been stated that a joint will of a husband and wife raises a presumption that the will was executed pursuant to a contract not to revoke the will (see Frazier v. Patterson (1909), 243 Ill. 80, 90 N.E. 216), later decisions have been reluctant to allow the presumption to be sufficient in itself. (In re Estate of Schwebel; Proctor v. Handke (1983), 116 Ill.App.3d 742, 72 Ill.Dec. 489, 452 N.E.2d 742.) Instead, the courts look to the language of the will to determine the intent of the testator. In re Estate of Edwards (1954), 3 Ill.2d 116, 120 N.E.2d 10.

In reviewing the language of the will, the court has considered various guidelines as an aid in determining whether a will is joint and mutual. Respondent urges us to rely only upon the factors listed in Rauch v. Rauch, and not to rely on the factors listed in In re Estate of Mueller. Both cases draw from Helms v. Darmstatter (1966), 34 Ill.2d 295, 215 N.E.2d 245. Some of the factors listed in Rauch and Mueller are the same, but Rauch does not include irrevocability on its list. Rauch, however, only refers to five "common characteristics" of joint and mutual wills, and does not find this list to be exclusive. On the contrary, the court in Rauch states that each case must be reviewed individually. Significantly, Rauch expressly acknowledges the hallmark of a joint and mutual will, i.e., that the contractual agreement contained in a joint and mutual will becomes irrevocable after the death of one testator.

The various guidelines referred to in Illinois law, then, include whether the testators agree that no revocation was to be made by one testator without the consent of the other testator; whether the dispositions are made by both testators rather than by each of them individually; whether the will includes a disposition whereby the property goes first to the other testator and then is distributed under a scheme dividing the property equally between the families of each testator; whether the estates of each testator are merged into one common corpus; whether the agreement of mutuality is either referred to in the will or established by other evidence; whether the will imposes a limitation on the use of the property by the surviving spouse; whether the testators assign the label of "joint and mutual" to the will; and whether the testators use...