Estate of Sutera, In re

• Decision Date: 23 May 1990
• Docket Number: No. 1-89-1559,1-89-1559
• Parties: , 145 Ill.Dec. 601 In re ESTATE OF Anthony J. SUTERA, Deceased (Joseph Sutera, Frank Sutera, Jennie Simone, Edward Holtrop, Jr., Matthew Holtrop, Michael Holtrop, and Richy Holtrop, a minor, Petitioners-Appellants, v. Mary Ann Pulizzano, Debby Pulizzano, Darlene Pulizzano, and Louis Sutera, Respondents-Appellees.)
• Court: United States Appellate Court of Illinois

Page 371

557 N.E.2d 371

199 Ill.App.3d 531, 145 Ill.Dec. 601

In re ESTATE OF Anthony J. SUTERA, Deceased (Joseph Sutera Frank Sutera, Jennie Simone, Edward Holtrop, Jr., Matthew Holtrop, Michael Holtrop, and Richy Holtrop, a minor Petitioners-Appellants, v. Mary Ann Pulizzano, Debby Pulizzano, Darlene Pulizzano, and Louis Sutera Respondents-Appellees.)

No. 1-89-1559.

Appellate Court of Illinois First District, Third Division.

May 23, 1990.

Melvin A. Brandt, Chicago, for petitioners-appellants.

Keith E. Morehead of Morehead & Flynn, Chicago, for respondents-appellees.

Justice FREEMAN delivered the opinion of the court:

Petitioners, Joseph Sutera, Frank Sutera, Jennie Sutera Simone, Sandra Holtrop, Edward Holtrop, Jr., Matthew Holtrop, are heirs at law of decedent, Anthony J. Sutera. They filed a petition on January 23, 1986, to contest decedent's will which appointed respondent, Mary Ann Pulizzano, as executrix, and named respondents Debby and Darlene Pulizzano as residiuary legatees. (Ill.Rev.Stat.1985, ch. 110 1/2, par. 8-1.) The petition was dismissed by the circuit court in November 1986. Following a successful appeal of the dismissal to this court (In re Estate of Sutera (1988), 166 Ill.App.3d 1147, 130 Ill.Dec. 398, 537 N.E.2d 465 (unpublished order under Supreme Court Rule 23)), the matter was reinstated on November 28, 1988. Respondents subsequently moved to dismiss the reinstated petition and their motion was granted January 24, 1989, by the circuit court with an allowance for petitioners to amend. On February 21, 1989, petitioners filed their amended petition which the trial court dismissed on May 23, 1989, without leave to amend, for failure to state a cause of action. Petitioners appeal the dismissal of their amended petition and contend that: (1) the amended petition alleged sufficient facts to state a cause of action for both undue influence and lack of testamentary capacity; and (2) even if the petition was insufficient, petitioners should be allowed leave to amend in the interests of justice.

The decedent's will bequeathed his entire estate to two nieces, Debby Pulizzano and Darlene Pulizzano, and appointed their mother, Mary Ann Pulizzano, a sister of the testator, as executrix. The will was admitted to probate on November 15, 1985, and on January 23, 1986, petitioners, who are two brothers, a sister, a niece, three grand-nephews and a grand-niece of decedent, filed a petition to contest the will. Petitioners alleged that the will was the result of duress (Count I), and undue influence (Count II) exercised upon decedent by Mary Ann Pulizzano, and that decedent lacked the mental capacity to make a will at the time of the will's execution (Count III).

On March 10, 1986, respondents filed a motion to strike and dismiss the petition arguing that it did not comply with the provisions of section 8-1 of the Probate Act which requires a will contest petition to name all legatees and heirs, their addresses if known, and whether any of the parties are minors. (Ill.Rev.Stat.1985, ch. 110 1/2, par. 8-1.) On November 5, 1986, petitioners filed a late supplement to the petition containing the names of the eight petitioners and their addresses. Two weeks later, on November 20, 1986, the trial court dismissed the petition with prejudice pursuant to section 2-1301(d) of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-1301(d)).

On December 22, 1986, petitioners filed a motion to vacate this dismissal, arguing that respondents had previously failed to respond or appear for a noticed deposition and had not appeared in court in response to a notice of motion; and that their counsel had not failed to appear for the November 20, 1986 hearing, but had simply appeared late. The trial court, however, denied petitioners' motion to vacate, and petitioners appealed the dismissal.

On May 11, 1988, this court set aside the dismissal of the petition finding that the record did not reveal that petitioners had failed to comply with court orders and that there was at least some lack of diligence by both parties. This court also stated that petitioners had demonstrated the existence of a meritorious claim only for purposes of section 2-1301(e) of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-1301(e)). On November 28, 1988, petitioners' case was reinstated.

On December 19, 1988, respondents filed a second motion to dismiss, alleging generally that the petition failed to state a cause of action because it contained only conclusional allegations. On January 24, 1989, the trial court dismissed the petition holding that it was substantially insufficient at law, but allowing petitioners 30 days to file an amended petition.

On February 21, 1989, petitioners filed an amended petition which stated:

"Now comes the petitioners, heirs at law of the deceased Anthony J. Sutera, namely; Joseph Sutera, brother; Frank Sutera, brother; Jennie Simone, sister; Edward Holtrop, Jr., grand- nephew; Matthew Holtrop, grand-nephew; and Ricky Holtrop, a minor, grand-nephew * * *."

Count I alleged that the decedent had been declared incompetent on July 31, 1985, and had been suffering from:

" * * * extreme congestive heart failure for a period prior to the execution of the will * * * which caused him to have poor blood circulation; resulting in his being incapable of understanding the nature of his acts or to make any rational decisions of any kind concerning his personal and financial matters; * * * severe coronary artery disease causing shortness of breath and chest pains that further impaired his ability to understand what property he had and did not have the mental capacity to make a valid will."

Count II alleged:

"That the decedent was a homosexual person and was very apprehensive of being placed in any nursing home or similar institution. That the respondent * * * threatened to expose the deceased unless he agreed (sic ) to do whatever the respondent * * * wished.

The domination and intimidation by said respondent was complete and exclusive resulting in the deceased being totally without any free agency of his own.

The complete domination over the free will of the deceased was enhanced by the declining physical condition * * * of the decedent.

The aim and purpose of the * * * respondent * * * was to compel the deceased to execute a last will and testament in favor of her daughters * * * to the exclusion of the other lawful heirs of the deceased.

The resulting will * * * was the product of duress exercised upon the deceased by respondent Mary Pulizzano."

On March 20, 1989, respondents filed a third motion to dismiss which maintained that petitioners' amended petition was deficient because it failed to join all heirs and legatees as parties, failed to allege the interests of the petitioners so as to establish jurisdiction, and failed to set forth sufficient factual allegations to state a cause of action for lack of testamentary capacity or duress. More specifically, respondents claimed that the petition contained no allegations which recited the manner in which the free will of the testator was impaired at the time the instrument was executed. On May 23, 1989, the trial court dismissed petitioners' amended petition for failure to state a cause of action and denied petitioners leave to amend because the cause was four years old.

Section 2-603 of the Illinois Code of Civil Procedure provides in pertinent part that "all pleadings shall contain a plain and concise statement of the pleader's cause of action * * *." (Ill.Rev.Stat.1987, ch. 110, par. 2-603.) The law requires that petitioners state pertinent facts to support their claim, and pleading requirements are not complied with by the use of language which is purely conclusional. Pfendler v. Anshe Emet Day School (1980), 81 Ill.App.3d 818, 822, 37 Ill.Dec. 1, 401 N.E.2d 1094.

Undue influence sufficient to invalidate a will is defined as:

"that influence which prevents the testator from exercising his own free will in the disposition of his estate [citation] or which deprives the testator of free agency and renders the will more that of another than his own. [Citation.] The influence may be exerted at any time, but must be directly connected with the execution of the will and operate at the time the will is made. [Citation.] The influence may be that of a third person, such as the spouse of a beneficiary as well as that of direct beneficiaries." (Emphasis added.) (Schmidt v. Schwear (1981), 98 Ill.App.3d 336, 342, 53 Ill.Dec. 766, 424 N.E.2d 401.)

Furthermore,

"[T]he general rule in Illinois [is that] * * * the pleading of undue influence in a will contest must contain a specific recital of the manner in which the free will of the testator was impaired at the time the instrument was executed. A mere conclusion that the testator was influenced by the persuasive or dominant nature of one of the beneficiaries is not sufficient." (Emphasis added.) Merrick v. Continental Ill. Nat. Bank & T. Co. (1973), 10 Ill.App.3d 104, 111, 293 N.E.2d 767, quoting Sterling v. Kramer (1957), 15 Ill.App.2d 230, 234, 145 N.E.2d 757.

In order to establish the lack of testamentary capacity, it must be shown that at the time the will was executed the testator lacked sufficient mental ability to know and remember who were the natural objects of his bounty, to comprehend the kind and character of his property and to make disposition of his property according to some plan formed in his mind. In re Estate of Dossett (1987), 159 Ill.App.3d 466, 472, 111 Ill.Dec. 418, 512 N.E.2d 807.

As a preliminary matter, respondents argue that the first amended petition failed to allege the interests of the petitioners and was, therefore, properly subject to dismissal in accordance with the authority of Wheeler v. Wheeler (1890), 134 Ill. 522, 526, 25 N.E. 588. The jurisdiction of the equity court in Wheeler was stated to derive exclusively from the Probate Act of February 10,...