Morrow v. Pappas, 90 N.E.3d 501

Background

Decedent Dorelle Denman executed a March 27, 2012 will (March Will) naming plaintiffs as beneficiaries and an attorney (Cantlin) as executor; a September 13, 2012 will (September Will) revoked the March Will and named defendants Pappas and Burrows as beneficiaries and First National Bank of Ottawa (FNB) as executor.
Denman experienced serious health problems between May and September 2012; attorneys Cantlin and Steward and Dr. Bailey met with her in August–September 2012. Denman executed a DNR and the September Will on September 13, 2012; she died September 25, 2012.
Plaintiffs sued (tortious interference with testamentary expectancy, conspiracy, fraud, malpractice, breach of fiduciary duty). The trial court dismissed conspiracy, fraud, and breach claims and later granted summary judgment for remaining defendants; plaintiffs appealed.
Discovery disputes included plaintiffs’ motion to compel documents from Steward/FNB (claimed attorney-client privilege), subpoena of Steward’s personal cell phone (protective order entered), and Dead Man’s Act and Petrillo doctrine disputes.
The trial court found plaintiffs lacked an actionable expectancy (they did not show defendants knew of the March Will or that plaintiffs were named beneficiaries), upheld the attorney-client privilege ruling, enforced the protective order on cell-phone records, rejected application of the Dead Man’s Act to plaintiffs, and denied sanctions under Petrillo.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether summary judgment on tortious interference with testamentary expectancy was improper	Existence of March Will is sufficient to plead an expectancy; disputed facts (influence, competence) preclude summary judgment	Plaintiffs lacked an enforceable expectancy because they failed to show defendants knew of the March Will or concealed it; probate limitations bar the claim	Summary judgment affirmed—plaintiffs failed to prove an expectancy or that will-contest route was unavailable due to defendants’ tortious concealment
Whether attorney-client privilege must be pierced for materials from Decedent’s attorneys/agents	Testamentary exception to privilege (as in will contests) applies to plaintiffs’ tort claim and requires disclosure	Privilege survives because plaintiffs did not timely contest the September Will and this is not a will contest; no basis to extend the testamentary exception	Privilege upheld; trial court did not err in denying motion to compel
Whether protective order/quash of Steward’s personal cell records was improper	Plaintiffs needed full cell records to show communications among defendants about estate planning	Records contained private customer/family numbers; relevant communications already produced; protective order appropriately limited use and contact	Protective order appropriate; trial court did not abuse discretion
Whether Dead Man’s Act and Petrillo sanctions should bar testimony or warrant sanctions	Plaintiffs sought exclusion of testimony under Dead Man’s Act and sanctions for improper ex parte contacts with physician	Plaintiffs lack status as representatives under Dead Man’s Act; no Petrillo violation because no improper ex parte contact with plaintiffs’ treating physician occurred	Trial court properly refused Dead Man’s Act application and denied Petrillo sanctions

Key Cases Cited

In re Estate of Hoover, 155 Ill. 2d 402 (discusses undue influence and will-execution evidence)
Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90 (standard of review for summary judgment)
In re Estate of Ellis, 236 Ill. 2d 45 (tortious interference elements; relation between will-contest period and tort claims)
DeHart v. DeHart, 2013 IL 114137 (testamentary exception to attorney-client privilege in will contests)
Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581 (prohibition on ex parte contact with plaintiff's treating physician)
Lamb v. Lamb, 124 Ill. App. 3d 687 (testamentary exception—privilege not applying between parties claiming under a will)