Bjork v. O'Meara
2012 IL App (1st) 111617
Ill. App. Ct.2012Background
- Colleen Bjork sued Frank P. O’Meara for tortious interference with a testamentary expectancy related to a Northern Trust bank account named as pay-on-death beneficiary.
- Decedent Frank J. Dama died February 18, 2009; his will distributed the estate to O’Meara and his wife after probate was opened.
- Dama’s will was admitted to probate on April 16, 2009; O’Meara was appointed independent representative of the estate.
- Bjork participated in probate proceedings and sought discovery and relief to contest assets she claimed belonged to the estate
- The trial court dismissed Bjork’s tort claim as untimely under the six-month will-contest period (755 ILCS 5/8-1) since the will was admitted to probate in 2009
- The issue on appeal was whether the six-month probate limitation applied to Bjork’s tort claim or whether Ellis and related authorities allowed an untimely tort claim when a will contest remedy was unavailable or insufficient
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 8-1 Probate Act applies to Bjork's claim | Bjork argues 8-1 does not apply because she pursues tort, not a will contest | O’Meara contends 8-1 applies to the tort claim as an attempt to challenge the will | Six-month 8-1 applies; claim timely dismissed |
| Whether Ellis controls by allowing non-contest tort relief | Ellis controls; remedy was not available to Bjork via a timely will contest | Ellis distinguishes and is not controlling because remedy was available by contesting while probate occurred | Ellis does not apply; will-contest remedy was available to Bjork if timely |
| Whether Bjork could have pursued a timely will contest or tort relief within six months | She could have pursued a timely will contest or timely tort relief during probate | Remedy could have been pursued; the will’s validity was established by probate without timely contest | Plaintiff had an opportunity to pursue timely relief, which supports application of 8-1 |
Key Cases Cited
- Robinson v. First State Bank of Monticello, 97 Ill.2d 174 (1983) (six-month period to contest will controls tort claims interfering with testamentary gift)
- In re Estate of Ellis, 236 Ill.2d 45 (2009) (availability of relief in probate determines applicability of will-contest limitations to tort claims)
- In re Estate of Jeziorski, 162 Ill. App.3d 1057 (1987) (participation in probate does not extinguish right to pursue tort claims related to will)
- Fitch v. McDermott, Will & Emery, LLP, 401 Ill. App.3d 1006 (2010) (affirms decision that probate processes can establish validity of will under 8-1)