2017 IL App (3d) 160393
Ill. App. Ct.2018Background
- Decedent Dorelle Denman executed a March 2012 will naming plaintiffs as beneficiaries and a September 13, 2012 will that revoked the March will and named defendants Pappas and Burrows as beneficiaries; First National Bank of Ottawa (FNB) was appointed executor and Kevin Steward acted as trust officer/agent.
- Denman was hospitalized and seen by Dr. Bailey; on September 13, 2012 a DNR and the September Will were executed in the presence of Steward and two witnesses. Attorneys and witnesses testified Denman appeared competent.
- Plaintiffs filed tort claims (intentional interference with testamentary expectancy against Pappas, Burrows, Cantlin, Steward/FNB) and additional counts (conspiracy, fraud, malpractice, breach of fiduciary duty); some counts were dismissed pretrial and others survived.
- Extensive discovery followed; the trial court denied plaintiffs’ motion to compel certain FNB/Steward attorney-client materials after in camera review, entered a protective order limiting use of Steward’s personal cell records, and refused application of the Dead Man’s Act.
- Trial court granted summary judgment for defendants on the intentional-interference counts; plaintiffs’ motions for reconsideration and other discovery/sanctions claims were denied. Plaintiffs appealed; this opinion affirms the trial court on all issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of an expectancy for tortious interference | The March will’s existence is enough to show plaintiffs had an expectancy and plaintiffs lacked notice to contest the September will within six months | Defendants: plaintiffs had no evidence defendants knew of the March will or that plaintiffs would inherit; plaintiffs failed to plead or prove an expectancy | Held: No expectancy proved; summary judgment for defendants affirmed because plaintiffs provided no evidence defendants knew of the March will or concealed it; probate six-month rule bars relief absent proof defendants’ tortious conduct prevented timely contest |
| Applicability of will-contest/testamentary exception to attorney-client privilege | Plaintiffs: exception should apply to permit disclosure of attorney work product because claims implicate testamentary issues and will-exception rationale should extend beyond contests | Defendants: privilege survives; no will contest was filed and September will is established for all purposes | Held: Exception limited to will contests (and narrowly to contested inter vivos trusts); privilege upheld after in camera review; trial court did not err in denying compelled production |
| Protective order and personal cell-phone records subpoena | Plaintiffs: subpoenaed Steward’s personal phone records to show communications; sought access to all numbers | Defendants: records include private bank customers/family; protective order needed to prevent harassment/privacy invasion | Held: Trial court properly tailored protective order; plaintiffs already obtained relevant communications and protective limits were reasonable |
| Application of Dead Man’s Act | Plaintiffs: testimony about conversations with decedent should be barred or stricken under Dead Man’s Act | Defendants: plaintiffs lack standing as ‘‘representatives’’ under the Act; defendants are not ‘interested persons’ within Act’s meaning | Held: Plaintiffs lack status as representatives or heirs under the operative will; Dead Man’s Act did not apply and trial court did not err |
| Dismissal/striking of conspiracy and fraud counts | Plaintiffs: trial court wrongly dismissed these counts and denied leave to replead | Defendants: plaintiffs failed to replead as ordered; counts were properly stricken | Held: Counts V and VI were stricken without repleading and thus not part of the operative complaint; dismissal affirmed |
| Sanctions / Petrillo doctrine (ex parte communications with treating physician) | Plaintiffs: defense counsel communicated ex parte with Dr. Bailey or his staff, warranting sanctions | Defendants: communications were scheduling with staff and not forbidden ex parte communications; Bailey was not a treating physician of any plaintiff | Held: Trial court did not abuse discretion; Petrillo did not apply given facts and absence of adversarial relationship with a plaintiff’s treating physician |
Key Cases Cited
- In re Estate of Ellis, 236 Ill. 2d 45 (Ill. 2010) (elements and nature of tortious interference with testamentary expectancy)
- In re Estate of Hoover, 155 Ill. 2d 402 (Ill. 1993) (undue influence and misrepresentations in will-execution context)
- DeHart v. DeHart, 2013 IL 114137 (Ill. 2013) (limited testamentary exception to attorney-client privilege in will contests)
- Lamb v. Lamb, 124 Ill. App. 3d 687 (Ill. App. Ct. 1984) (testamentary exception does not apply to private disputes between parties not claiming under the will)
- Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill. 2d 90 (Ill. 1992) (standard of review for summary judgment)