In re Estate of DeMarzo
39 N.E.3d 255
Ill. App. Ct.2015Background
- Patricia DeMarzo signed a will in 2004 leaving substantial gifts (real property, dogs, personal effects, and half the residuary) to Harvey Harris, her tenant/attorney/boyfriend; her brother James was largely disinherited.
- Harris is a licensed Illinois attorney; he admits he accompanied Patricia to notarize the will but denies drafting it or giving legal advice regarding its contents.
- James DeMarzo, Patricia’s sole heir, filed a petition (2010) contesting the will, alleging it violated public policy (attorney drafting a will that benefits the attorney) and that Harris exercised undue influence; he sought invalidation, punitive damages, and fees.
- Key disputed evidence: deposition of Patricia’s friend James Panagakis, who testified Patricia told him (in Harris’s presence) that Harris “knew what was in her will because he wrote it”; the trial court excluded that testimony as hearsay and rejected an admission-by-silence theory.
- The trial court granted Harris summary judgment and dismissed the contest; the appellate court affirmed, holding Panagakis’s account was inadmissible hearsay and that, absent admissible evidence Harris drafted the will or unduly influenced Patricia, no genuine issue remained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Panagakis’s testimony (hearsay) | Testimony that Patricia said Harris wrote the will should be admissible (falls under hearsay exception or is offered to show Harris’s knowledge) | Statement is classic hearsay; no applicable hearsay exception | Excluded as inadmissible hearsay; not within exceptions cited by plaintiff |
| Admission by silence | Harris’s silence/reactive grin upon statement should be treated as an admission by silence | No evidence Harris heard the remark or had an opportunity to and silence is ambiguous | Not an admission by silence—no proof Harris heard the statement or intentionally remained silent |
| Public policy / Rule 1.8(c) challenge (attorney drafting instrument benefitting self) | Rule 1.8(c) reflects public policy forbidding an attorney to prepare a testamentary instrument giving substantial gifts to the attorney; will invalid for violating public policy if Harris drafted it | Even if rule expresses public policy, there is no admissible evidence Harris drafted the will | Denied: without admissible proof that Harris prepared the will, no violation of Rule 1.8(c) or public policy is shown |
| Undue influence / Summary judgment | Inconsistent Harris testimony and circumstantial facts create triable issues about who prepared the will and undue influence | Excluding Panagakis’s hearsay, no admissible evidence shows drafting or undue influence; summary judgment appropriate | Affirmed: no genuine issue of material fact shown; summary judgment for Harris proper |
Key Cases Cited
- Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90 (state supreme court) (summary judgment reviewed de novo)
- Foutch v. O’Bryant, 99 Ill. 2d 389 (state supreme court) (appellant bears burden to provide sufficient record; omissions lead to presumption trial court acted properly)
- In re Will of Hamilton, 408 Ill. 187 (state supreme court) (statements by testator inconsistent with will inadmissible to invalidate will)
- People v. Cihak, 169 Ill. App. 3d 606 (appellate court) (elements for admission by silence/implied admission)
- Chicago Transit Authority v. Clear Channel Outdoor, Inc., 366 Ill. App. 3d 315 (appellate court) (standards for reviewing summary judgment)
- Busch v. Graphic Color Corp., 169 Ill. 2d 325 (state supreme court) (summary judgment purpose and standards)
- William Blair & Co. v. FI Liquidation Corp., 358 Ill. App. 3d 324 (appellate court) (summary judgment review principles)