In re Estate of Parker
2011 IL App (1st) 102871
Ill. App. Ct.2011Background
- Decedent Agnes B. Parker died in 2005; respondent Sharon McCollom served as executrix and power of attorney for decedent.
- Heirs moved under section 2-619(a)(5) to dismiss a counterclaim by respondent seeking compensation for services rendered to decedent.
- Circuit Court dismissed the counterclaim as untimely under Probate Act section 18-12(b) (two-year filing period).
- Respondent argued section 13-207 salvaged the counterclaim because the amended citation for recovery of assets was filed beyond two years.
- Heirs filed amended citations for recovery of assets, alleging respondent mismanaged and dissipated decedent’s assets; respondent sought to compel an accounting and eventual distributions.
- The appellate court affirmed, holding 18-12(b) is a jurisdictional bar that cannot be saved by section 13-207, and that the amended citations did not revive the counterclaim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether section 18-12(b) bars respondent’s counterclaim. | Heirs: 18-12(b) bars claims filed after two years from death; counters not salvaged. | Respondent: 13-207 salvages counterclaim despite 18-12(b). | Counterclaim barred; 18-12(b) is jurisdictional and 13-207 does not apply. |
| Whether section 13-207 can save a late counterclaim when 18-12(b) applies. | Heirs: 13-207 not applicable to revive counterclaim. | Respondent: 13-207 should apply to save counterclaim. | Inapplicable; 18-12(b) controls and defeats counterclaim. |
| Whether amended citation for recovery of assets relates back to timely filings under Chernyk. | Heirs: amended petition relates back; timely filing preserved proceedings. | Respondent: amended petition does not revive counterclaim. | amended petition relates back; does not revive counterclaim. |
| Whether Rice governs or is distinguishable in this context. | Heirs: Rice permits counterclaims saved by 13-207 when estate actions delayed. | Respondent: Rice distinguishable; probate context; 18-12(b) controls. | Rice distinguishable; 18-12(b) governs here. |
Key Cases Cited
- In re Estate Chernyk, 138 Ill. App. 3d 233 (Ill. App. 1985) (citation to recover assets can relate back to timely petition to discover assets)
- Estate of Chernyk, 138 Ill. App. 3d 233 (Ill. App. 1985) (related back to timely petition to discover assets)
- In re Marriage of Epsteen, 339 Ill. App. 3d 586 (Ill. App. 2003) (18-12(b) time bar is a jurisdictional grant; not a statute of limitations)
- In re Estate of Rice, 154 Ill. App. 3d 591 (Ill. App. 1987) (Salvage of counterclaims under 13-207; distinction from probate asset recovery)