In re Estate of John Schumann
2016 IL App (4th) 150844
| Ill. App. Ct. | 2017Background
- Decedent John O. “Pete” Schumann executed a will in 2007 naming Mary Ann Herren executrix and expressly revoking all prior wills; Herren petitioned to probate that will after Pete died in 2013.
- Hanna and Nathan Struever (children of Pete’s deceased wife) filed a will contest alleging lack of testamentary capacity and undue influence as to the 2007 will and asserting Pete had executed a 2002 will and trust that would benefit them.
- The Struevers attached Alice’s 2002 will and Pete’s 2002 trust to their petition but did not attach Pete’s 2002 will itself; they asked the court to set aside the 2007 will and probate the 2002 will.
- Herren moved to dismiss, arguing among other things that under In re Estate of Schlenker the 2007 will’s revocation clause voided prior wills and therefore the Struevers lacked standing as legatees of the 2002 will; the trial court initially denied the motion but later granted reconsideration and dismissed for lack of standing.
- The appellate court reversed: it held Schlenker was not controlling to bar legatee standing here, found Herren bore the burden to plead and prove lack of standing on a 2-619 motion, and concluded Herren failed to meet that burden.
Issues
| Issue | Plaintiff's Argument (Struever) | Defendant's Argument (Herren) | Held |
|---|---|---|---|
| Do the Struevers have standing to contest the 2007 will as legatees of a 2002 will? | Struevers claim legatee status under Pete’s 2002 will gives them an interest to contest the 2007 will. | Herren contends Schlenker means a later will that revokes prior wills eliminates prior legatees’ standing. | Reversed: Struevers have alleged legatee standing; Schlenker does not categorically bar standing here. |
| When deciding a 2-619 motion attacking standing, who bears the burden of proof? | N/A (argument rests on procedural rule favoring plaintiffs). | Herren argued Struevers failed to attach the 2002 will and so standing cannot be shown. | The respondent (Herren) bears the burden to plead and prove lack of standing on a 2-619 motion; she failed to meet it. |
| Does a revocation clause in an unproven will automatically void prior wills for standing purposes? | Struevers: prior will can be relied on to establish standing; revocation clause is not decisive at motion stage. | Herren: 2007 will’s revocation clause presumptively voids the 2002 will, precluding standing. | Court: Schlenker’s dicta does not establish that rule; revocation clause does not automatically deprive prior legatees of standing at this stage. |
| Is failure to attach the alleged prior will fatal to a legatee’s claim of standing? | Struevers: plaintiff need not prove standing at pleading stage; respondent must disprove it on 2-619. | Herren: absence of the 2002 will in the petition justifies presuming it revoked/does not exist. | Court: Failure to attach was not dispositive; burden remained on Herren to show lack of standing. |
Key Cases Cited
- In re Estate of Schlenker, 209 Ill. 2d 456 (2004) (held an heir has standing to contest a will; discussion about prior wills being treated as void in the context of a 2-619 motion)
- Crooker v. McArdle, 332 Ill. 27 (1928) (a will is not legally effective until admitted to probate; revocation clause is not operative until probate)
- In re Estate of Malcolm, 234 Ill. App. 3d 962 (1992) (legatees under a prior will may be ‘‘interested persons’’ with standing to contest a subsequent will)
- In re Estate of Keener, 167 Ill. App. 3d 270 (1988) (legatee may lack standing when no direct pecuniary interest in the prior will immediately preceding the will being probated)