In re Estate of Henry
| Decision Date | 16 October 2009 |
| Docket Number | No. 1-08-3398.,No. 1-08-3479.,1-08-3398.,1-08-3479. |
| Citation | 919 N.E.2d 33 |
| Parties | In re ESTATE OF Richard V. HENRY, a Disabled Person (JPMorgan Chase Bank, N.A., as Plenary Guardian of the Estate of Richard V. Henry, Petitioner-Appellee, v. Peter H. Wemple and Miroslaw Zawierucha, Respondents-Appellants). |
| Court | United States Appellate Court of Illinois |
Eduard Adam Glavinskas, Porikos, Rodes, & Glavinskas, Chicago, IL, for Peter Wemple.
David C. Kwik, Chicago, IL, for Miroslaw Zawierucha.
Peter J. Schmeidel, Ronald D. Menna, Jr., Fischel & Kain, Ltd., Chicago, IL, for Appellees.
This is an appeal from an order granting the petition of JPMorgan Chase Bank, N.A. (petitioner or the estate), for authority to execute a codicil, a will, and a trust on behalf of its ward, the elderly Richard V. Henry, in order to change the terms of a 2004 will that was alleged to have been procured through the undue influence of his caretaker, Miroslaw "Mick" Zawierucha.
On February 7, 2004, Henry, at age 89, purportedly executed a will (the 2004 will) in which he gave a substantial part of his estate, worth nearly $5 million, to Mick and to the executor of the will, Peter Wemple. In 2006, he was adjudicated as a disabled adult due to cognitive decline, and petitioner was appointed the plenary guardian of his estate. The estate subsequently filed the petition at issue in the instant appeal, alleging that the 2004 will was not a valid expression of Henry's testamentary wishes, because of Mick's undue influence and Henry's incapacity to manage his financial affairs during that time period. It therefore sought to strike the distributive portions of the 2004 will and substitute the distributive provisions of Henry's prior will, as well as remove Wemple as executor. The trial court granted the estate's petition.
Mick and Wemple now appeal, requesting that this court reverse the trial court's orders in their entirety, or, in the alternative, that we reverse and remand for the trial court to conduct an evidentiary hearing on the matters raised by the estate's petition. For the reasons that follow, we dismiss this appeal, as we find that Mick and Wemple lack standing.
It is undisputed that, on February 27, 2004, the 89-year-old Henry purported to execute a will, which is the subject of the instant petition. This will purports to override the terms of all Henry's prior wills and codicils, including Henry's most recent prior will, which is dated November 10, 1999 (the 1999 will). Wemple, Henry's nephew-in-law, is named as executor of both the 1999 and the 2004 wills.
The 1999 will distributed Henry's estate as follows: his personal property to his niece, Karen Gunst, and certain of his deceased wife's nieces and nephews; a Merrill Lynch account to Gunst; a $10,000 bequest to each of Gunst's children; various real estate and appurtenances to Wemple; and the residue of his estate, in various proportions, to the University of Chicago, the University of Chicago Hospital, the Mayo Clinic of Jacksonville, Florida, the Memorial Sloan-Kettering Cancer Institute, and Northwestern Memorial Hospital. None of Henry's estate is left to Mick. The 2004 will, by contrast, modifies this arrangement to split a substantial portion of Henry's estate between Mick and Wemple, and it also leaves Henry's home in Flossmoor, Illinois, to Mick.
It is further undisputed by the parties that, on April 11, 2006, Henry was adjudicated as a disabled adult by Judge James Riley. Petitioner was appointed the plenary guardian of Henry's estate, and his niece Gunst was appointed the plenary guardian of his person.
On November 2, 2006, prior to the filing of the petition at issue in the instant case, Henry's estate filed a citation to recover assets from Mick.1 The citation alleged that Henry was suffering from severe dementia and that Mick had abused his position as Henry's caretaker to misappropriate approximately $1.3 million of Henry's funds. Petitioner therefore sought an order requiring Mick and Bozena to return these funds. The trial court, per Judge James Riley, granted the citation on June 4, 2008. It found that since December 31, 2003, Henry had lacked decisional capacity to manage his personal, legal, and financial affairs. It further found that Mick, as Henry's caretaker, was a fiduciary of Henry. Accordingly, it found that the transfers between him and Mick were presumptively fraudulent, and it further found that Mick had failed to overcome that presumption. Judge Riley therefore entered judgment against Mick for both compensatory and punitive damages.
Mick appealed. The case came before this court as In re Estate of Henry, No. 1-07-2309 (2009) (unpublished order under Supreme Court Rule 23) (Henry I). On February 23, 2009, we affirmed the order of the trial court with respect to Mick, finding that he had violated his fiduciary duties and "embarked on a deliberate campaign of repeated and intentional attempts to misappropriate large sums of money from Henry, who was mentally infirm and thus unable to defend himself from Mick's fraudulent conduct."
On February 22, 2008, while the appeal in Henry I was still pending, the estate petitioned Judge Riley for authority to execute a codicil, a will, and a trust on behalf of Henry pursuant to section 11a-18(a-5) of the Illinois Probate Act of 1975 (755 ILCS 5/11a-18(a-5) (West 2006)), which states that the probate court "may authorize the guardian to exercise any or all powers over the estate and business affairs of the ward that the ward could exercise if present and not under disability." It is this petition that is at issue in the instant appeal. In the petition, the estate alleged that the 2004 will was not Henry's valid last will and did not express Henry's true testamentary wishes, "[b]ased on this Court's findings of fraud and breach of fiduciary duties that attached to all transactions that benefited MICK, and since the ward lacked the capacity to manage his financial affairs and to execute legal documents in February of 2004." The estate further alleged that Henry's 1999 will was his valid last will and his true expression of testamentary intent, as it was executed at a time when Henry still possessed decisional capacity and before he was subject to the undue influence of Mick.
Accordingly, the estate petitioned the court to allow the estate to execute estate planning documents for Henry which, it contended, were consistent with his known wishes and which would be "free from the taint of the undue influence and fraud which was assembled upon the ward when he purportedly executed the 2004 will." In this regard, the estate submitted a proposed codicil, a proposed trust agreement and a proposed will to the court. The proposed codicil struck the distributive provisions of the 2004 will and substituted the distributive provisions of the 1999 will; likewise, the proposed trust mirrored the distributive provisions of the 1999 will. Moreover, the trust agreement granted a number of benefits to Henry, including providing for the payment of funds from the trust property for Henry's care during his lifetime, providing protection from creditors, and facilitating the disposition of the trust estate upon Henry's death.
In addition, the three instruments provided that petitioner, rather than Wemple, would be named as trustee of the trust and executor of Henry's will. The estate acknowledged that Henry had named Wemple as executor in the 1999 will that he executed while still in possession of his faculties, but it contended that Wemple faced a conflict of interest with respect to the proposed changes and would therefore not be a suitable trustee or executor.
Mick and Wemple filed objections to the petition, contending that the estate had not shown undue influence or Henry's lack of testamentary capacity as of the date that the 2004 will was executed. They further contended that the trial court lacked power under the Probate Act to authorize the execution of a new will on behalf of the ward. Thus, both Mick and Wemple requested that the petition be denied. In the alternative, Wemple requested on behalf of himself alone that the portions of the 2004 will granting Henry's property to Mick be stricken, but the remainder of the 2004 will be allowed to stand.
On August 8, 2008, after hearing the arguments of counsel, but without holding an evidentiary hearing, the trial court entered an order granting the estate's petition, over the objections of Mick and Wemple. In its order, the court issued the following findings:
"1. That it would be reasonable for a testator to remove from his Last Will and Testament a person now known to have betrayed his confidence and wrongly took his money and property.
2. The 2004 Last Will and Testament is not a valid expression of Richard Henry's testamentary wishes; it is nothing more that [sic] an example of Mick's overreaching and undue influence, a breach of his fiduciary relationship with Mr. Henry.
3. That the problem with the 2004 Last Will and Testament of Richard Henry is not cured or fixed by simply excising Mick out of the will as a legatee. The document as a whole is a drastic departure from dispositive provisions of the 1999 will.
5. That if this court were to simply reinstate the 1999 Last Will and Testament as the valid expression of Richard Henry's testamentary wishes it would create an insurmountable conflict with Peter Whimple [sic] as an Executor.
6. That all interested persons would still have available in a decedent's estate the opportunity to file a will contest."
Mick and Wemple filed motions to reconsider which were denied by the trial court in an order dated November 12, 2008. They then filed the instant appeal.
Petitioner contends that this appeal should be dismissed for two reasons: first, that appellants lack standing to bring this appeal, as...
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