Hebrew Univ. of Jerusalem v. Zivin (In re Estate of Zivin)

• Decision Date: 17 December 2015
• Docket Number: No. 1–15–0606.,1–15–0606.
• Citation: 46 N.E.3d 902
• Parties: In re ESTATE OF Alma M. ZIVIN, Deceased (Hebrew University of Jerusalem, Claimant–Appellant, v. Norman Zivin and Sander Allen, Co –Executors of the Estate of Alma M. Zivin, Deceased and Co–Trustees of the Alma M. Zivin Trust dated May 20, 2004, Respondents–Appellees).
• Court: United States Appellate Court of Illinois

46 N.E.3d 902

In re ESTATE OF Alma M. ZIVIN, Deceased (Hebrew University of Jerusalem, Claimant–Appellant,

v. Norman Zivin and Sander Allen, Co –Executors of the Estate of Alma M. Zivin, Deceased and Co–Trustees of the Alma M. Zivin Trust dated May 20, 2004, Respondents–Appellees).

No. 1–15–0606.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 17, 2015.

A. Charles Kogut and Daniel W. Kaminski, both of Kogut & Associates, Oak Brook, for appellant.

Susan H. Booker, of Levun, Goodman & Cohen, Ltd., Northbrook, for appellees.

OPINION

Presiding Justice McBRIDE

delivered the judgment of the court, with opinion.

¶ 1 Hebrew University of Jerusalem appeals from an order dismissing its claim against a decedent's estate for lack of standing. The school sued in its capacity as a “beneficial legatee” of a trust created by a will which the decedent, Alma M. Zivin, executed with her husband, Israel Zivin, just prior to his death. To avoid confusion, we will refer to the Zivins, respectfully, by their first names. The coexecutors of Alma's estate persuasively argued in the trial court that the school's claim about a trust created by the couples' bequest should be dismissed pursuant to section 2–619(a)(9) of the Illinois Code of Civil Procedure

(Code) (735 ILCS 5/2–619(a)(9) (West 2012)), because only the testamentary trustee, not the trust's beneficiary, has authority to bring a claim. The school argues on appeal that it does have standing, or alternatively that the judge should have appointed a trustee ad litem to continue the proceeding on the school's behalf. The coexecutors respond the school failed to refute the motion to dismiss with any factual, admissible evidence of standing.

¶ 2 In 1983, the Zivins executed a document entitled “Mutual Last Will and Testament.” The premise of Hebrew University's claim is that the 1983 will is both a joint will and a mutual will that benefits the school. The coexecutors vigorously dispute this premise. We have no opinion about the merits of the school's claim and confine our analysis to the preliminary issue of its standing to sue.

¶ 3 The terms “joint will” and “mutual will” are sometimes used incorrectly. Curry v. Cotton, 356 Ill. 538, 543, 191 N.E. 307, 309 (1934)

. Mutual wills are separate instruments of two or more persons which include reciprocal terms by which each testator makes a testamentary disposition in favor of the other. Curry, 356 Ill. at 543, 191 N.E. at 309. A joint will is a single testamentary instrument that has been jointly executed by two or more persons to dispose of property that they own in severalty, in common, or jointly. Rauch v. Rauch, 112 Ill.App.3d 198, 200, 67 Ill.Dec. 785, 445 N.E.2d 77, 79 (1983). A will that is both joint and mutual is a single instrument executed jointly by two or more persons with a mutual or reciprocal provision and which shows on its face that the bequests were made in consideration of each other. Platz v. Walk, 3 Ill.2d 313, 316, 121 N.E.2d 483, 485 (1954).

¶ 4 A joint and mutual will between spouses is a contract that requires the survivor to dispose of the property as the will instructs (Rauch, 112 Ill.App.3d at 200, 67 Ill.Dec. 785, 445 N.E.2d at 79

), and generally a joint will cannot be revoked unless there is joint action of both testators or, in some instances, by either party acting separately but giving notice to the other of the revocation. Curry, 356 Ill. at 544, 191 N.E. at 309. Thus, after the death of one of the parties to a joint will, when joint action or notice to the other party is no longer possible, a survivor who benefits from the parties' agreement “is estopped from disposing of the property other than as contemplated in the will.” Rauch, 112 Ill.App.3d at 200, 67 Ill.Dec. 785, 445 N.E.2d at 79–80. Therefore, one court commented that the consequences of a contract not to revoke a will are “serious and far-reaching” because a valid contract prevents the survivor from changing the estate plan even where intervening circumstances have rendered provisions of the joint will “so inappropriate or unfair that the deceased spouse, had he or she lived, would have desired or sanctioned the changes in the testamentary provisions.” Wisler v. McCormack, 406 N.E.2d 361, 363 (Ind.Ct.App.1980).

¶ 5 Although not entitled to possession until after the death of the surviving spouse, the third-party beneficiaries of a joint and mutual will are entitled to enforcement of the couples' contract. Rauch, 112 Ill.App.3d at 200, 67 Ill.Dec. 785, 445 N.E.2d at 80

(where couple executed joint and mutual will, upon the husband's death, the inheritance rights of the couple's four children vested, and even though one of those children later died, that child's share had vested and had to pass to his widow instead of increasing the inheritance of the three other children); Ernest v. Chumley, 403 Ill.App.3d 710, 344 Ill.Dec. 73, 936 N.E.2d 602 (2010)

(where couple executed separate but mutual wills, the husband's death rendered the couple's contract irrevocable and prevented the wife from disinheriting his children who were entitled to one-quarter of her remaining estate).

¶ 6 There are five hallmarks of a joint and mutual will: generally the testators of a mutual will label their will as such, include reciprocal provisions which dispose of the entire estate in favor of the other testator; pool their interests or merge their estates into a common corpus; have a common dispositive scheme of the joint property; and use plural pronouns and terms such as “we give” and “our estate.” Rauch, 112 Ill.App.3d at 200–01, 67 Ill.Dec. 785, 445 N.E.2d at 79–80

(presence of all five characteristics clearly indicated that a husband and wife intended for their jointly-executed will to be a joint and mutual will); In re Estate of Signore, 149 Ill.App.3d 904, 906, 103 Ill.Dec. 261, 501 N.E.2d 282, 283 (1986) (setting out eight factors instead of five and concluding that a joint will which had many characteristics of a mutual will rendered irrevocable by the death of the first spouse, was not a mutual will due to a clause stating a document was the couples' “ ‘Last Will and Testament, with full reservation by both or either of us to change the terms hereof at any time’ ”).

¶ 7 In the “FIRST” paragraph of the Zivins' “Mutual Last Will and Testament,” they directed the payment of all just debts, funeral expenses and administration costs. In the “SECOND” paragraph, Israel stated:

“That I, DR. ISRAEL ZIVIN, hereby give, devise and bequeath all of my property whether same may be real, personal or mixed, and wheresoever situated or which I may own or have any interest in at the time of my death, including any lapsed legacies, to my beloved wife, ALMA M. ZIVIN, for her sole and exclusive use and benefits forever, in the event that I may predecease her.”

The “THIRD” paragraph was identical to the “SECOND” paragraph, other than switching the names and corresponding pronouns. The “FOURTH” paragraph empowered and directed the executors to liquidate “all of our property, regardless whether real, personal or mixed, as soon after the death of the survivor of us, as they may deem practicable.” This was followed by:

“FIFTH: That in the event that we shall both perish in a common disaster, or following the death of the survivor of us, we give, devise and bequeath the rest, residue and remainder of our estate after payments directed under the above provisions, excluding any property over which we have power of appointment, which power we decline to exercise, shall be distributed as follows:

A. 20% thereof to NEAL JAY YANOFSKY of Chestnut Hill, Massachusetts;

B. 10% thereof to DR. SIMON ZIVIN of Lincolnwood, Illinois;

C. 10% thereof to SANDER ALLEN of 990 Lake Shore Drive, Chicago, Illinois;

D. 10% thereof to THE ARK located at 2341 West Devon Avenue, Chicago, Illinois;

E. All of our furniture, furnishings and household effects to SANDER ALLEN and MARTHA YANOFSKY in such shares as they may mutually determine between them; F. Any remaining property not otherwise effectively disposed of shall be distributed to THE FIRST NATIONAL BANK, as Trustee (hereinafter called “Trustee”), to be held as a charitable trust for and on behalf of THE HEBREW UNIVERSITY OF JERUSALEM, New York, New York, only upon the terms and conditions as hereinafter provided.

1. The Trustee shall hold said Trust Estate as a charitable trust in perpetuity. The Trustee shall pay the entire net income only, and no part of the principal, of the Trust Estate at least annually to said charitable organization, and that the primary purpose of the said trust is for the higher education of students living in Israel.”

¶ 8 Israel died in 1984 and later that same year the Zivins' will was filed in the probate division of the circuit court of Cook County. Alma executed her own will in 2004 in which she expressly revoked any and all prior wills and codicils, made specific bequests of her personal effects and gave the rest, residue, and remainder of her estate to a “pour over trust” bearing her name. Alma's will made no provision for Hebrew University of Jerusalem. Thirty years after Israel's death, Alma died in Chicago on August 23, 2013, at the age of 95 years. The Zivins never had children and when Alma passed away, she was survived by a brother in Chicago and adult nieces and nephews in other parts of the United States.

¶ 9 Alma's 2004 will was admitted to probate on January 23, 2014, and by order of the court, her brother, Sander Allen, and her nephew, Norman Zivin, were appointed independent coexecutors of her estate. On March 3, 10, and 17, 2014, the coexecutors published notice of Alma's death. In the notice they stated there is a six month limitation period for contesting the validity of a will that has been admitted to probate and also that any claims against Alma's estate (such as creditor claims) that were not filed by September 4, 2014, were barred. See 755 ILCS 5/8–1

, 18–3; 18–12 (West 2010).

¶ 10 The Probate ...