Frakes v. Thieme (In re Frakes)

Decision Date29 January 2020
Docket NumberAppeal No. 3-18-0649
Citation146 N.E.3d 801,438 Ill.Dec. 732,2020 IL App (3d) 180649
Parties IN RE ESTATE OF Walter Dean FRAKES, Deceased (Walter Doyle Frakes, Executor, Petitioner-Appellee, v. Emily A. Thieme, Abigail C. Schneider and William H. Thieme, Respondents-Appellants).
CourtUnited States Appellate Court of Illinois

Nicholas P. Hoeft, of Jostock & Jostock, P.C., of Chicago, for appellants.

Christopher J. Spanos, of Westervelt, Johnson, Nicoll & Keller, LLC, of Peoria, for appellee.

JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 Petitioner, Walter Doyle Frakes, filed to have a conformed copy of decedent's will admitted to probate. Respondents, Emily A. Thieme, Abigail C. Schneider, and William H. Thieme, filed a motion for summary judgment, asking that the will be denied admission to probate. Petitioner filed a cross-motion for summary judgment. The trial court ruled in favor of petitioner, admitting the will to probate. Respondents appeal.


¶ 3 Decedent executed the currently disputed version of his last will and testament on October 31, 2011. Attorney Jack Boos prepared the will and witnessed its execution along with his employee, Laurie Rollet, at decedent's place of business. Boos and Rollet then departed from decedent's office, leaving the original will behind. Boos created a conformed copy of the October 2011 will for his records once he returned to his office, but no copies of the executed will were made. Per the terms of the conformed copy, the October 2011 will revoked all prior wills.

¶ 4 In May 2013, decedent reported a burglary at his home to the local police department. Officer Sean Kozak of the Washington Police Department responded. Decedent informed Kozak that multiple items had been stolen from his safe. Among the contents reported stolen were $50,000 in cash, the deed to decedent's home, the title to his vehicle, three gold bracelets, two gold necklaces, and "his will." Decedent later contacted Kozak to amend the dollar amount of cash stolen to $80,000. Kozak believed that when the decedent told him that "his will" was stolen, he was referring to his current will. Kozak submitted to an evidence deposition in relation to this case. Kozak stated that in preparation for the deposition, he reviewed the report of the incident that he recorded the day of the incident. Kozak did not have any independent recollection of the incident prior to reviewing the report he had prepared.

¶ 5 Decedent passed away approximately four years later, on March 12, 2017. Petitioner filed the instant action to have a conformed copy of the will admitted to probate the following April. Petitioner then amended the pleadings in June and November of the same year.

¶ 6 Respondents filed a motion for summary judgment seeking to prevent the will from being admitted to probate. Respondents never requested the trial court hold an evidentiary hearing. Petitioner responded and filed a cross-motion for summary judgment seeking to admit the will to probate. Petitioner attached to his motion Kozak's evidence deposition, as well as affidavits from Boos and Rollet. Boos and Rollet both attested to being present when the will was signed, that the conformed copy of the will was an exact copy of the document they witnessed decedent execute, and that decedent was of sound mind when he executed the will.

¶ 7 Petitioner submitted an additional affidavit of Boos to the court. Boos attested that he was the long-time attorney of the decedent and remained his attorney until decedent's passing. During this time, he drafted at least three versions of decedent's last will and testament. Further, since the October 2011 will was executed at decedent's place of business, no copy was made. However, Boos returned to his office and conformed a copy of the will, by hand, to be consistent with the executed version. Boos stated the conformed version was attached to the amended petition and that decedent did not have him prepare another will after October 31, 2011.

¶ 8 The trial court heard oral arguments on the cross-motions. The gravamen of respondents' argument was that the presumption of revocation associated with lost wills applied in this case, and even if decedent's will had been stolen, he had acquiesced to what amounted to revocation by theft because of the four-year lapse in time between the theft and his passing. Respondents also argued that there was a genuine issue of material fact regarding whether the will stolen from the safe was decedent's operative will. Moreover, there was a brief argument regarding whether Kozak's statements made during the evidence deposition satisfied a hearsay exception. Petitioner argued the presumption of revocation should not apply, and even if it did, the court had been provided sufficient evidence to overcome that presumption.

¶ 9 The court took the matter under advisement and subsequently issued a memorandum of decision granting the petitioner's motion for summary judgment. The court found, in pertinent part, that the "following facts are not contested or disputed by contrary factual assertions as opposed to argument or speculation": (1) prior to the May 2013 theft, decedent never revoked the October 2011 will by any of the prescribed, statutory methods of revocation, and never executed another will; (2) decedent never executed another will after the theft of "his will"; (3) the conformed copy produced by petitioner is an accurate copy of the October 2011 will and is the only evidence of the will's content; and (4) prior to the burglary in May 2013, decedent never reported the October 2011 will lost or stolen.

¶ 10 The court ruled that decedent's reference to "his will" when describing items stolen from his safe to police compelled the inference that decedent was referring to his October 2011 will, especially in the absence of contradicting evidence. The possibilities advanced by respondents were mere conjecture and were not properly considered when ruling on a motion for summary judgment. The court found that decedent's statements to police fell into an exception to hearsay promulgated by Illinois Rule of Evidence 803(3)(A) (eff. Apr. 26, 2012). The court also agreed with petitioner that the presumption of revocation should not apply to stolen wills and, even if it did, the uncontested facts established that there was no genuine issue of material fact that decedent did not destroy his will.

¶ 11 This appeal followed.


¶ 13 On appeal, respondents advance three main arguments. Respondents' main contentions are (1) summary judgment was not proper due to the existence of genuine issues of material fact, (2) statements in Kozak's evidence deposition are barred by the rules against hearsay, and (3) the trial court failed to properly apply the presumption of revocation pertaining to lost and missing wills. Petitioner insists the lower court did not err and requests we affirm its judgment.

¶ 14 A. Summary Judgment

¶ 15 Respondents first contend that the trial court erred in granting summary judgment and, instead, an evidentiary hearing should have been held. Respondents argue that the trial court's factual findings are in contravention of well-established Illinois law: that when viewed in the light most favorable to the nonmovant, the factual findings are unsupported. Petitioner argues that respondents merely rely on unsupported speculation, opinions, and conclusions in an attempt to raise a genuine issue of material fact.

¶ 16 The purpose of summary judgment is not to try a question of fact but to determine if one exists. Adams v. Northern Illinois Gas Co. , 211 Ill. 2d 32, 42-43, 284 Ill.Dec. 302, 809 N.E.2d 1248 (2004). Summary judgment is appropriate when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2016). In reviewing a motion for summary judgment, a court must construe the pleadings, depositions, admissions, and affidavits strictly against the moving party and liberally in favor of the nonmoving party to determine whether a genuine issue of material fact exists. Cohen v. Chicago Park District , 2017 IL 121800, ¶ 41, 422 Ill.Dec. 869, 104 N.E.3d 436 (Kilbride, J., dissenting). Unsupported conclusions, opinions, or speculation are insufficient to raise a genuine issue of material fact. Outboard Marine Corp. v. Liberty Mutual Insurance Co. , 154 Ill. 2d 90, 132, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992) ; Illinois Valley Minerals Corp. v. Royal-Globe Insurance Co. , 70 Ill. App. 3d 296, 300, 26 Ill.Dec. 629, 388 N.E.2d 253 (1979).

¶ 17 When examining a grant of summary judgment, this court considers anew the facts and law related to the case to discern whether the trial court's disposition of the matter was appropriate. Jackson v. Graham , 323 Ill. App. 3d 766, 779, 257 Ill.Dec. 330, 753 N.E.2d 525 (2001). This court reviews the trial court's judgment, not its reasoning, and may affirm that judgment on any grounds called for in the record. City of Chicago v. Holland , 206 Ill. 2d 480, 492, 276 Ill.Dec. 887, 795 N.E.2d 240 (2003). We review a grant of summary judgment de novo . Id. at 487, 276 Ill.Dec. 887, 795 N.E.2d 240.

¶ 18 Respondents initially filed a motion for summary judgment with petitioner responding in kind, inviting the trial court to decide the case as a matter of law. See Oswald v. Hamer , 2018 IL 122203, ¶ 9, 425 Ill.Dec. 626, 115 N.E.3d 181 ("When parties file cross-motions for summary judgment, they mutually agree that there are no genuine issues of material fact and that the case may be resolved as a matter of law."). Respondents at no time requested an evidentiary hearing before the court.

¶ 19 If respondents would have petitioned the trial court to hold an evidentiary hearing instead of hastily moving for summary judgment, they would...

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    ...the Coghlans’ argument because we have an independent duty to determine if a genuine issue of material fact exists. In re Estate of Frakes , 2020 IL App (3d) 180649, ¶ 20, 438 Ill.Dec. 732, 146 N.E.3d 801. ¶ 23 Summary judgment is appropriate when the pleadings, depositions, and admissions ......
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