Estate of Wade v. Mercantile Trust & Sav. Bank (In re Re)

• Court: Appellate Court of Illinois
• Writing for the Court: JUSTICE KNECHT delivered the judgment of the court.
• Citation: Barr v. Mercantile Trust & Sav. Bank (In re Estate of Wade), 2015 IL App (4th) 140229-U, NO. 4-14-0229 (Ill. App. May 21, 2015)
• Decision Date: 21 May 2015
• Docket Number: NO. 4-14-0229,4-14-0229
• Parties: In re: the Estate of J.L. WADE, a/k/a JESSE LORAINE WADE, Deceased, SUSAN WADE BARR, Petitioner-Appellant, v. MERCANTILE TRUST & SAVINGS BANK, Executor of the Estate of J.L. WADE; MERCANTILE TRUST & SAVINGS BANK, as Trustee of the J.L. WADE Trust Dated March 22, 2001, as Amended; J.L. WADE FOUNDATION, INC.; MIMI CHUNMEI HU; and THE UNIVERSITY OF ILLINOIS FOUNDATION, Respondents-Appellees.

2015 IL App (4th) 140229-U

In re: the Estate of J.L. WADE, a/k/a JESSE LORAINE WADE,Deceased, SUSAN WADE BARR, Petitioner-Appellant, v. MERCANTILE TRUST & SAVINGS BANK, Executor of the Estate of J.L. WADE;MERCANTILE TRUST & SAVINGS BANK, as Trustee of the J.L. WADE Trust DatedMarch 22, 2001, as Amended; J.L. WADE FOUNDATION, INC.; MIMI CHUNMEI HU;and THE UNIVERSITY OF ILLINOIS FOUNDATION, Respondents-Appellees.

NO. 4-14-0229

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

May 21, 2015

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of Pike County

No. 07P40

Honorable Diane M. Lagoski, Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court.

Justices Holder White and Appleton concurred in the judgment.

ORDER

¶ 1 Held: (1) The trial court properly refused petitioner's proposed jury instruction on undue influence.

(2) The trial court did not abuse its discretion in excluding evidence regarding occurrences after May 4, 2004, the last date decedent signed a testamentary device, on relevancy grounds.

(3) Petitioner failed to establish the trial court erred in excluding deposition testimony in decedent's 2001 guardianship proceeding from admission in the will and trust contest; petitioner forfeited her argument by not supporting it with legal authority and introduced an argument not raised at trial.

(4) The trial court did not err in denying petitioner's motion for a directed verdict on the issue of undue influence.

(5) The trial court did not err in denying petitioner's motion for a mistrial.

¶ 2 In 2007, petitioner, Susan Wade Barr, initiated this suit contesting testamentary devices executed by her father, Jesse Loraine Wade (J.L.). Under the challenged devices, petitioner was essentially disinherited. At trial, petitioner presented evidence supporting two theories. Petitioner argued J.L. lacked the necessary testamentary capacity to execute the testamentary devices and J.L. was unduly influenced to alter his previous will and trust by two of petitioner's cousins, Courtney Wade and Michael Wade, and J.L.'s live-in assistant, Mimi Chunmei Hu.

¶ 3 A jury considered the will contest while the trial court ruled on petitioner's trust contest. Both ruled in petitioner's favor on the latter testamentary devices, but found the earlier devices, which significantly lessened petitioner's gift, valid.

¶ 4 Petitioner appeals, arguing the trial court erred by (1) refusing to give petitioner's tendered jury instruction on undue influence, (2) excluding testimony regarding events occurring after the date J.L. last signed a testamentary device, (3) excluding from trial the deposition testimony of unavailable witnesses who testified in the guardianship proceedings that resulted in the appointment of a guardian for J.L., (4) denying her motion for a directed verdict after petitioner presented testimony giving rise to the unrebutted presumption of undue influence, (5) denying her motion for judgment notwithstanding the verdict (judgment n.o.v.), and (5) denying her motion for a mistrial based on the improper admission of inflammatory and prejudicial evidence. We affirm.

¶ 5 I. BACKGROUND

¶ 6 J. L. died in June 2007 at the age of 94. During his lifetime, J.L., a veryintelligent man, was an astute businessman. He created and operated a company called Nature House, Inc, in Pike County. J.L. was self-made and private. He married Marjorie and had one child, petitioner. J.L.'s relationship with Marjorie was tumultuous due to Marjorie's alcoholism. This, according to the trial court, resulted in J.L.'s having a very close relationship with petitioner. Petitioner was the apple of J.L.'s eye, and he doted on her. In August 1996, J.L. executed testamentary documents leaving petitioner the bulk of his estate. Petitioner was also named executor of the estate and successor trustee of a trust created at the same time.

¶ 7 J.L.'s plan to leave his estate to his daughter changed. In March 2001, J.L. executed a will (2001 Will) and a trust agreement (2001 Trust Agreement), altering the arrangements he made in 1996 and decreasing the devise to petitioner to $1 million. According to the 2001 Will, J.L.'s estate would go the trust estate, J.L. Wade Trust, created under the 2001 Trust Agreement. Bank of America was designated as the executor of the 2001 Will and successor trustee. J.L. was the trustee. Under the 2001 Trust Agreement, the J.L. Wade Trust was to employ Hu during J.L.'s lifetime, and, if she remained employed by J.L. at his death, a home in Scottsdale, Arizona, as well as $100,000. Petitioner was to receive $1 million, so long as she did not challenge the validity of the 2001 Will or the 2001 Trust Agreement. The balance of the estate was to be given to the University of Illinois Foundation for scholarship purposes. In the 2001 Trust Agreement, J.L. identified his nephew, Michael, as his physician and designated Michael as the one to determine when J.L. could no longer manage his affairs.

¶ 8 Amendments were made in May 2002 (2002 Amendment) and in January 2004 (2004 Amendment). J.L. also signed a codicil in May 2004 (2004 Codicil). In the 2002 Amendment, J.L. reduced the gift to his daughter to $300,000 and confirmed the 2001 TrustAgreement "[i]n all other respects." In the 2004 Amendment, J.L. named Mercantile Trust & Savings Bank (Mercantile) as successor trustee. In the 2004 Codicil, J.L. appointed Mercantile as the executor of his 2001 Will.

¶ 9 The month of J.L.'s death, Mercantile petitioned the trial court to admit into probate the 2001 Will and the 2004 Codicil. Approximately six months later, in December 2007, petitioner filed suit, contesting the 2001 Will, the 2001 Trust, the two amendments, and the 2004 Codicil.

¶ 10 A. Petitioner's Argument at Trial

¶ 11 At trial, petitioner attempted to show J.L. had been improperly influenced by his sister-in-law, Wilma Wade; his nephews, Michael and Courtney; Hu; and his estate-planning attorney, William Keller, to abandon his testamentary plans to leave petitioner his estate. Petitioner relies largely on evidence of the December 2001 court order that found J.L. lacked the mental capacity to manage his person and estate fully. Petitioner further points to evidence showing J.L. moved from Illinois to Arizona, where he spent much of his time with Wilma, Michael, and Courtney, and, while there, petitioner was denied access to J.L. by Hu, Michael, and Courtney. Petitioner further points to evidence showing J.L. dramatically changed his opinion of petitioner upon spending more time with Wilma, Michael, and Courtney in Arizona.

¶ 12 Petitioner further sought to prove at trial J.L. lacked the requisite mental capacity to alter his will and trust. Petitioner relied on expert and lay testimony showing J.L.'s mental faculties began diminishing before 1999 and J.L. lacked testamentary capacity when he signed the 2001 Will, the 2001 Trust, the amendments, and the 2004 Codicil.

¶ 13 B. Respondents' Arguments at Trial

¶ 14 In contrast, respondents maintained at trial J.L. had the necessary mental capacity to alter his testamentary plan. Respondents pointed to expert testimony, as well as testimony by J.L.'s counsel, regarding the creation of the testamentary documents. Respondents further argued no undue influence occurred, as neither Wilma, Michael, nor Courtney received anything under the will or the trust, and Hu, who received a house and $100,000, received little compared to the work she did for J.L. Respondents' position is that J.L. changed his testamentary plan because he felt betrayed by his daughter after she placed an article in a local newspaper questioning his judgment, she initiated guardianship proceedings against him, and she refused to vacate property owned by J.L. until he began eviction proceedings.

¶ 15 C. Trial Court's Summary of the Evidence

¶ 16 A three-week trial was held in May 2013. Before entering judgment, the trial court summarized the evidence for the record. J.L. was very bright and an astute businessman who was proud of his accomplishments. While not afraid to speak of his accomplishments, he was also a private man. J.L. was also accustomed to his power.

¶ 17 J.L. was married to Marjorie, and the two had one child, petitioner. J.L.'s marriage was tumultuous, but he had a very close and intense relationship with his daughter. The two adored each other. J.L. doted on petitioner and determined she would have the best of everything. J.L. and petitioner's relationship changed, however, beginning in 1999. J.L., at that time, was approximately 86 years old. Around this time, J.L.'s younger brother, Walter Wade, developed cancer. This caused J.L. great distress. J.L. began to question his future and rethink his business plans. During Walter's final months, J.L. spent much time with Walter and his family, including Walter's wife, Wilma, and his sons, Michael and Courtney. Petitioner, at thistime, was either in Alabama or Connecticut. She was not with Walter Wade's family.

¶ 18 A noticeable change in the relationship of petitioner and J.L. occurred at Walter's funeral. Michael and petitioner provided differing descriptions of what occurred that day. The trial court determined it did not know exactly what occurred, but something happened. At this point in time, J.L. began to believe petitioner was an alcoholic who drank too heavily and was unable to handle the business. Wilma told petitioner she overheard Walter and J.L. discuss these beliefs. During this time, there was a shift in J.L.'s allegiance from petitioner and toward Michael, Courtney, and Wilma.

¶ 19 No evidence supported J.L.'s belief regarding petitioner's alcohol consumption or her business prowess. There was evidence petitioner was a social drinker, and she had consumed alcohol in J.L.'s presence, but not to the level of intoxication. In addition, petitioner had participated in the business as...