In re ESTATE OF Bozenna MICHALAK

• Decision Date: 21 September 2010
• Docket Number: No. 1-09-0976.,1-09-0976.
• Parties: In re ESTATE OF Bozenna MICHALAK, a Disabled Person (Jacqueline H. Zagorski, Petitioner-Appellee, v. Robert and Jolanta Kaleta, Respondents-Appellants).
• Court: United States Appellate Court of Illinois

404 Ill.App.3d 75
934 N.E.2d 697
343 Ill.Dec. 373

In re ESTATE OF Bozenna MICHALAK, a Disabled Person (Jacqueline H. Zagorski, Petitioner-Appellee, v. Robert and Jolanta Kaleta, Respondents-Appellants).

No. 1-09-0976.

Appellate Court of Illinois,First District, Fifth Division.

Aug. 20, 2010.
Rehearing Denied Sept. 21, 2010.

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Angelo Ruggiero, River Forest (David M. Hundley, of counsel, Hundley Law Group, Chicago), for Appellant.

Michael Maslanka, Sacks, Goreczny, Maslanka & Costello, P.C., Chicago, for Appellee.

Presiding Justice TOOMIN delivered the opinion of the court:

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343 Ill.Dec. 378

In the instant appeal we consider whether the probate court's order amending a disabled ward's revocable trust was against the manifest weight of the evidence. Robert and Jolanta Kaleta appeal from an order granting Jacqueline Zagorski's petition to amend Bozenna Michalak's trust to remove the Kaletas and replace Zagorski as the successor trustee and contingent beneficiary under the trust. The Kaletas maintain that section 11a-18(a-5) of the Probate Act of 1975 (755 ILCS 5/11a-18(a-5) (West 2008)) does not allow amendment of a ward's preexisting trust for any reason other than tax purposes. They further contend that: (1) reappointment of Michalak's guardian ad litem after adjudication and continued participation in the proceedings finds no support in the Probate Act; (2) the guardian ad litem acted beyond the scope of her authority in presenting her report; (3) the trial court abused its discretion in denying respondents oral discovery and leave to file an answer to the petition; (4) hearsay contained in the guardian ad litem's report was erroneously admitted

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at the hearing on the petition to amend the trust; and (5) the trial court's finding was against the manifest weight of the evidence. The Kaletas also appeal from a subsequent order allowing a reverse mortgage on Michalak's home. For the following reasons, we affirm.

BACKGROUND

In October and November 2006, attorney John Kuranty met with Bozenna Michalak, an 83-year-old widow, to execute an estate plan. Michalak came alone to the consultation and spoke with Kuranty in Polish. They discussed her assets and dispositional options in great detail. Michalak stated that she was widowed and had no children. With respect to any extended family, Michalak “made reference to somebody in Michigan, somebody greedy * * * [who is] not really a family member.” Kuranty prepared a revocable trust, the corpus of which consisted only of Michalak's home, titled “The Bozenna U. Michalak Revocable Trust Dated November 6, 2006” (Michalak's trust). During the second meeting with Michalak, Kuranty reviewed and translated the entire trust document into Polish for Michalak. According to Kuranty, Michalak did not have diminished or insufficient capacity and understood everything Kuranty explained during their two consultations. Under the terms of the trust, Robert Kaleta would become the trustee in the event of Michalak's incapacity; the Kaletas would also become the beneficiaries upon Michalak's death.

934 N.E.2d 703

343 Ill.Dec. 379

In January 2007, Jacqueline Zagorski, Michalak's niece, was alerted by Chicago police officers of a potential exploitation of Michalak's financial affairs. Zagorski then accompanied Michalak to various banks to have her name added to Michalak's accounts. When she visited Michalak, Zagorski observed several conversations between Michalak and her neighbors, the Kaletas. However, because Zagorski does not speak Polish she did not understand what was being said. Zagorski did not visit Michalak again until she was alerted by a bank in May 2007 that further “attempts were being made on her accounts.”

In June 2007, during a cleanup effort at Michalak's house, Robert Kaleta came to the house between 2 and 10 times to assist Zagorski and her husband. According to Zagorski, Kaleta commented to her, “Well, I'm the boss here as far as the house goes,” and said “something along the same lines that the house was coming to him.” In turn, Zagorski applied for guardianship of Michalak.

Dr. Farhan Ibrahimi evaluated Michalak for the guardianship petition proceedings on June 15, 2007, and found her to be “incapable of making personal or financial decisions.” He diagnosed her with Alzheimer's disease. Dr. Ibrahimi did not indicate that Michalak had any

404 Ill.App.3d 79

diminished capacity at the time she executed her revocable trust, nor did he opine how far the disease had progressed. In 2007, Michalak was able to bathe herself, dress herself, to a “small extent” cook for herself, and walk outside her home to visit her neighbors. Marcella Horan was appointed as guardian ad litem for purposes of the adjudication proceedings. In turn, Michalak was adjudicated a disabled adult, and Zagorski was appointed plenary guardian.

In May 2007, Zagorski received a letter from the assessor indicating that Michalak's senior citizen exemption would not be renewed because of a change in titling of her home. Zagorski learned that the house was held in trust. A citation to tender the trust document was served upon attorney Kuranty, who appeared in court on November 15, 2007 and tendered the instrument. On that occasion, Kuranty expressed concern over the possibility that Michalak, as a native Polish speaker, may have been unjustly declared incompetent due to a communication problem with Horan. According to Zagorski, Michalak had told her she did not recall any details about the trust. When Zagorski asked whether Michalak signed any papers to give her house to Robert Kaleta, Michalak said, “I may have said it, but I didn't mean it.” Zagorski did not ask Michalak any further questions because “she didn't want to seem like [she] was asking [the ward] for anything.”

On December 13, 2007, pursuant to Zagorski's motion, Horan was reappointed as Michalak's guardian ad litem and ordered to “conduct further investigation into [Michalak's] assets, etc.” and report to the court on February 13, 2008. On that date, Horan presented a report advocating invalidation of Michalak's trust, suggesting undue influence by the Kaletas. Horan's report recounted interviews with nine people. The court entered an order reflecting Horan's presentation of the report and continuing the matter to allow Zagorski to present a petition to amend the trust.

On March 11, 2008, Zagorski filed a verified petition to amend Michalak's trust, pursuant to section 11a-18(a-5) of the Probate Act (755 ILCS 5/11a-18(a-5) (West 2008)), serving the contingent trustees and beneficiaries to the trust, Robert and Jolanta Kaleta. Zagorski alleged that Michalak was under insufficient or diminished capacity when she executed the trust. The Kaletas filed a motion to dismiss Zagorski's petition. On July 17, 2008, during

343 Ill.Dec. 380

934 N.E.2d 704

argument on the motion, without notice to respondents, Horan presented to the court a document titled, “Summary of Recent Pleadings Concerning Trust Amendment and Supplemental Report of Guardian Ad Litem,” again containing detailed recitals of the same conversations summarized in her previous report and also recommending denial of the Kaletas' motion.

404 Ill.App.3d 80

The Kaletas noticed discovery depositions of Zagorski for August 21, 2008, and of Michalak for August 22, 2008. On August 21, 2008, upon emergency motions filed by both the Zagorski and Horan, the trial court quashed the Kaletas' notices and denied their request for leave to file an answer to Zagorski's petition instanter. The court further directed that any response to the petition to amend the trust be filed by July 31, 2008.

A five-day bench trial was held between August 28, 2008, and March 10, 2009. Zagorski acknowledged that she did not see Michalak from October through December 2006. Nor did Zagorski know anyone who saw Michalak in November 2006. Over the hearsay objection of respondents, Zagorski testified that since January 2007, Michalak told her that “she wanted to remain in her house and that when something did happen to her she wanted [her house] to belong to [Zagorski] and her husband.”

From July through September 2007, Zagorski did not object to the Kaletas taking Michalak to their house for a visit, provided she knew her whereabouts. However, after being appointed plenary guardian, Zagorski forbid Michalak to visit or speak with the Kaletas without her permission, and on October 9, 2007, had her lawyer send the Kaletas a letter stating as such. Nevertheless, Zagorski acknowledged that in the 10 year period prior to January 2007, when the Kaletas were Michalak's neighbors, Mr. Kaleta drove Michalak to the bank and cut her grass, and Michalak's house was in decent condition. After the Kaletas no longer lived next door that was no longer so.

In her initial report regarding the trust, Horan stated that during her conversation with Robert Kaleta, she was able to understand him despite his Hispanic accent. However, at trial, Horan acknowledged that Kaleta was Polish, not Hispanic, and that she “misunderstood his accent” and “could not tag his accent correctly.” On cross-examination, Horan admitted that her reported conversations with Officer Jane Fudacz, Bernadette Baran, Tracey Fondren, Ann Beres, Jean Kinsinger, and Lillian Raff did not address the issue of Michalak's mental capacity on November 6, 2006, or the issue of whether Michalak wished to amend her trust document. Horan further testified that, although Kuranty was the only person she interviewed who gave information as to Michalak's mental capacity on November 6, 2006, she disregarded his statement in forming her conclusion in the report. In advocating for invalidation of the trust, Horan believed Michalak was confused when she executed the trust because the trust...