delivered the opinion of the court:
This case is on appeal from a ruling in a bench trial that the last will and testament of Frank J. Glogovsek, deceased, be set aside. The respondents raise the issue of whether the trial judge erred in applying a presumption of undue influence by testator’s spouse towards testator, causing testator to designate his stepchildren as contingent beneficiaries, if his wife predeceased him, as opposed to decedent’s sister and her children. We find that the trial judge erred, and we reverse.
Respondent Sharon A. Week defends individually as Frank’s stepdaughter and as the executrix of his will. Respondent Robert L. West is Frank’s stepson. Both respondents inherited under Frank’s will. Petitioner, Antonia Tynan, is Frank’s sister. Her three daughters, Betty Voss, Rose Marie Quirin, and Helen Nugent, acting under a durable power of attorney executed in their behalf by petitioner, have actually handled the prosecution and appeal of this case. Respondent Walter Glogovsek is Frank’s brother, and he settled before trial.
Frank executed his contested will on April 5, 1988. Margaret died just three months later in July 1988. Frank died on July 6, 1989, at the age of 88, one year after Margaret’s death. His will was admitted to probate on July 13, 1989. Petitioners contested the will, alleging that Frank did not have testamentary capacity to execute the will and that Sharon and Margaret had unduly influenced him in making the will.
The evidence presented was substantially as follows: Frank and Margaret were married in 1954. Frank did not have any children of his own, but Margaret, a widow, had two children by a former marriage, namely Sharon and Robert. Sharon was 13 at the time of the marriage and lived with Frank and Margaret until she was 20 years old. Robert was already in the service at the time of their marriage and never lived
Donald Tedesco was the attorney who prepared decedent’s will. He testified that in early 1988, he met with Margaret twice for the purpose of getting information to prepare wills for both Margaret and Frank. On February 18, 1988, both Margaret and Frank met with attorney Tedesco to discuss their wills. Margaret had a will executed in 1982, but to Tedesco’s knowledge, Frank did not have a will prior to 1988, and there is no evidence in the record to suggest otherwise. At the meeting in February 1988, Margaret instructed Tedesco to leave her residuary assets to her children, Sharon and Robert. Frank appeared very uncertain about his testamentary wishes but instructed Tedesco to leave his residuary assets in a life estate to Margaret and the remainder after her life to his three nieces, Betty, Rose, and Helen. Tedesco prepared wills for each of them according to their instructions and mailed copies to them for review.
On March 24, 1988, Margaret came back to Tedesco’s office and asked him to make changes to both her will and Frank’s. She indicated that Frank wanted his will to be similar to hers: leave everything to her, but if she predeceased him, everything to her two children, Sharon and Robert. Tedesco made the changes but did not mail the changed versions to them. He met with them on April 5, 1988, for the purpose of executing both wills, at which time Margaret was in the hospital anticipating heart surgery. Tedesco went to the hospital, where Frank was visiting Margaret, so that they could execute their wills.
When Tedesco arrived at the hospital, both parties appeared to be alert and competent. Tedesco asked them to read their wills. He went out into the hallway to wait while they read and discussed the wills. Tedesco testified that on both occasions when he was with Frank and Margaret, he did not detect any discord between them, and he described their relationship as harmonious.
Margaret called Tedesco back into her room after approximately 15 minutes. Tedesco then asked his standard three questions to both Frank and Margaret individually. Frank responded affirmatively that he had read his will, that he understood it, and that it was correct in all respects. Tedesco also told them that he could make any changes that were necessary before signing the wills, and he could come back another time to execute the wills if necessary. Tedesco and his wife, his ersatz secretary that day, witnessed both Frank’s and Margaret’s wills at the same time. Frank signed by himself without aid from anyone, after Tedesco indicated where he was to sign.
At the time of making and executing the wills, Tedesco had practiced law for over 30 years; His practice was approximately 50% probate work, and he had prepared over 1,700 wills, with 85% prepared for husbands and wives. It was Tedesco’s usual and customary practice to allow and encourage spouses to read and discuss their wills together, outside of his presence, whether the wills were signed at his office or elsewhere, because he felt it is a family matter that should be discussed in private between the spouses. He found it very common for husbands and wives to have differences of opinion as to how their property was to be distributed. Tedesco did not have any difficulty talking to or communicating with Frank, but he described Frank as a quiet man, as opposed to Margaret, who was very talkative. To Tedesco, Frank appeared “regular in all respects.” Tedesco did not see what he would call any undue influence on the part of Margaret over Frank.
Sharon testified next. She had lived in the same town as her mother and Frank since her marriage in 1961. During the three to four years before the wills were executed, she had visited them two to three times per week, plus seeing them on holidays and other special occasions. In April of 1988, her mother entered the hospital and, due to complications, was not released before her death in July 1988. For a year or two before her death, Margaret had driven Frank to doctor’s appointments and anywhere else he needed to go, because he
Frank’s three nieces testified next. They had lost their father when they were young girls and had always looked up to Frank as a father figure. They all lived in the same general area as Frank and had seen him on holidays and special occasions during the three to four years before his death. The power of attorney that had enabled them to prosecute the will contest for their mother, Frank’s sister, had been drafted after a family conference between the three nieces and their mother, at which time they decided that Mrs. Tynan, Frank’s sister, should have inherited from him. The nieces had each inherited, through joint tenancy, bonds with a face amount of $2,300, but at least one of the nieces stated that she had expected to be left more under Frank’s will because he had made statements to that effect during his lifetime.
All of the nieces testified that Frank had gradually changed in the three or four years before his death. The main changes they noted were that Frank was more easily confused and more forgetful as the years went by. He also lost his sense of humor to some degree, was quieter than normal, seemed less interested in the world around him, and became more dependent upon Margaret.
The contestants rested their case after introducing the evidence depositions of three physicians. We will not summarize these depositions, however, because the trial judge found that the contestants had not proved that Frank lacked testamentary capacity on the date he signed the will, a finding that the contestants do not challenge on appeal. Therefore, the depositions of the doctors, going only to the issue of testamentary capacity, are irrelevant for the purpose of this appeal.
Sharon testified again, on behalf of the estate. She described her relationship with Frank as a typical father-daughter relationship. She did not feel that Margaret dominated Frank, because if he did not want to do something that she wanted him to do, he just did not do it. Margaret and Frank’s relationship was good, although at times they argued. The remainder of Sharon’s testimony deals with her lack of involvement in the execution of Frank’s will and events after the will was executed. However, since the court did not find that Sharon had unduly influenced Frank, we will not reiterate those facts.
Robert West testified briefly, stating that he had maintained a close relationship with Frank over the years and considered Frank his father after his mother married him. (Robert’s and Sharon’s natural father died in an airplane accident in 1949.) Robert lived in Belleville between 1961 and 1979 and saw Frank and Margaret often. After he moved away in 1979, he continued to visit Frank and Margaret about once per month.
Everett Kassing testified that he was the trust officer at Magna Bank at the time Frank established an inter vivos revocable trust on August 23, 1988. Mr. Kassing worked with attorney Don Tedesco to set up the trust to pay Frank’s bills. Kassing had three meetings with Frank regarding the trust and met with Sharon as well. Overall, Kassing expressed the opinion that Frank generally knew what property he owned, who his relatives were, and who were the natural objects of his bounty, during the months of his meetings with Frank, which was after the will in question was executed.
The only other evidence presented was the discovery deposition of petitioner Antonia Tynan, who could not appear at the trial due to health problems. Her deposition testimony was that she had always
The trial court entered an order stating: “[Claimants had failed to adduce sufficient evidence to establish testamentary incapacity by a preponderance of the evidence. The case is at best evenly balanced so that the usual presumption requires a determination of the question in favor of the testator’s capacity to make a will.” The court further found: “[Claimants have adduced sufficient evidence to establish testator’s trust in and dependence on his wife who as substantial beneficiary was instrumental in procuring the preparation and execution of the will in her own and her children’s favor. *** Thus, while it is clear *** no presumption of undue influence arises merely from the relationship of husband and wife [citation], [a] fiduciary relationship can be found to exist from the facts and circumstances of the case.” The court cited In re Estate of Henke (1990),
The evidence relied upon by the court, as stated in the order, was that “Frank did not manage his own affairs [and] did not pay his own bills, his health was deteriorating and he was characterized as withdrawn and disinterested.” Other factors were that Frank had not received any independent legal advice and he did not ratify “his purported decision to disinherit his family” after the will was executed; that all communications with the attorney who drafted the will were made in the presence of Margaret; and that the attorney did not discuss, explain, or read the changed will to Frank at the time it was executed. The court found that it had “no clearly convincing evidence of either Frank’s purported change of heart or that the executed will was not in conformity with his prior indication to favor his nieces.”
The estate and the respondents argue on appeal that the trial court should not have applied the presumption of undue influence to Margaret over Frank because the presumption does not make sense when applied to a spousal relationship. The petitioner argues that the court was correct in applying the presumption. It appears from our review of the law and from the cases cited by the parties that the particular issue presented by this case is one of first impression in Illinois. (See Mache v. Mache (1991),
We feel that it is proper to exercise judicial restraint and not decide the issue of whether the presumption applies to spouses when such a decision is not necessary in resolving the dispute in the case at bar. A sweeping refusal to allow the application of the presumption as to spouses of testators may cause an injustice under other facts and circumstances. Suffice it to say that the use of the presumption of undue influence must be applied with caution as to marital relationships, because of the unique relationship between spouses and the importance of marriages in our society. It may be that, after further consideration of the presumption in other factual situations, the courts in Illinois may exclude the use of the presumption as applying to spouses, but we decline to do so in this case or at this time.
Turning now to the facts in Henke, a daughter was accused of unduly influencing her mother to make a will in her favor, to the exclusion of the testator’s two grandchildren from a deceased son. The testator had a former will that would have provided the grandchildren with approximately $100,000. This court found:
“A presumption of undue influence arises when a will contestant shows:
‘ “(1) a fiduciary relationship between testator and a person who receives a substantial benefit under the will (compared to other persons who have an equal claim to testator’s bounty);
(2) a testator in a dependent situation in which the substantial beneficiaries are in dominant roles;
(3) a testator who reposed trust and confidence in such beneficiaries; and
(4) a will prepared or procured and executed in circumstances wherein such beneficiaries were instrumental or participated.” ’ ” (Henke,203 Ill. App. 3d at 978 ,561 N.E.2d at 316 , quoting Nemeth v. Banhalmi (1984),125 Ill. App. 3d 938 , 960, 466 N.E .2d 977, 992, quoting Beyers v. Billingsley (1977),54 Ill. App. 3d 427 , 436-37, 369 N.E .2d 1320, 1327.)
Further research shows that the supreme court first raised the presumption of undue influence, with basically the same tests as set forth above, in will contests in Weston v. Teufel (1904),
We must keep in mind that we are considering undue influence by a spouse. “Undue” influence means influence that is excessive, improper, or illegal. (See Black’s Law Dictionary 1697 (4th ed. 1968).) “Undue influence has been defined as any improper urgency of persuasion whereby the will of a person is overpowered and he is induced to do an act which he would not do if left to act freely.” (Mache v. Mache (1991),
Every marriage varies as to the intimacy between the spouses. However, we can properly assume that, in the vast majority of marriages, spouses influence each other for better or worse from the day they first date to the day they die or the divorce order is entered. We assume that good marriages involve give and take and compromises between spouses. The law does not and should not presume a spouse to be guilty of undue influence simply by reason of the marital relationship alone (Miethe v. Miethe (1951),
In looking at the tests that raise the presumption of undue influence, as set forth in Henke, the complainant must first establish that a fiduciary relationship existed between the testator and the substantial beneficiary. Black’s Law Dictionary defines a fiduciary as a person who manages money or property for another; one is said to act in a fiduciary capacity when one handles money or property which is not his or her own, or for his or her own benefit, but for the benefit of the other person. (Black’s Law Dictionary 320-21 (abridged 5th ed. 1983).) Further:
“[A] [fiduciary] relationship exists where there is a special confidence reposed in one, who by reason of such confidence, must act in good conscience and good faith and with due regard to the interests of the person reposing such confidence. It may exist as a matter of law between attorney-client, guardian-ward, trustee-beneficiary, and the like, or it may be the result of a more informal relationship — moral, social, domestic or even personal in its origin. [Citations.] Where the relationship does not exist as a matter of law, the proof must be clear, convincing, and so strong, unequivocal, and unmistakable as to lead to but one conclusion.” Swenson v. Wintercorn (1968),92 Ill. App. 2d 88 , 100,234 N.E.2d 91 , 97.
Petitioner had to prove, therefore, by clear and convincing evidence that a fiduciary relationship existed between Margaret and Frank. We first note that there was no evidence that Margaret managed money or property that belonged solely to Frank. There was evidence that Margaret paid the household bills and living expenses of both parties out of a joint checking account after Frank lost interest in doing so. Margaret also wrote the figures on the latest tax returns, but there was no evidence that she actually did all of the computations. (Frank was a retired bank auditor.) Most likely, in every marriage the chores are divided so that one spouse assumes the primary responsibility for seeing that checks are written and sent to pay the bills. If both spouses were to equally assume the responsibility, payment of bills could be overlooked, arguments might result as to whose turn it was to write the checks, and it becomes more difficult to know the bank balance. The same can be said for tax returns. It would be unusual for two people to split the job of filling out the returns. The mere fact that one party to the marriage does the routine management of the joint checking account from which the bills are paid, which may be small compared to the rest of the assets owned by the testator, as in the case at bar, and sees to the preparation of the tax returns does not and should not create a fiduciary relationship as to all of the property in testator’s estate. There needed to be clear and convincing evidence that Frank entrusted the management of most of his personal and financial affairs to Margaret before a fiduciary relationship could be said to arise as to Frank’s entire estate. (Swenson v. Wintercorn (1968),
There is a further problem in raising the presumption of undue influence as to spouses in probate law. When we consider property transactions between spouses, the law does not place interspousal transfers in the same category as in other cases. For instance, a conveyance between spouses is presumed to be a gift, and the presumption of undue influence is not applicable. (Miethe v. Miethe (1951),
We also note that, in the first test for the presumption, there is included in parentheses the statement “compared to other persons who have an equal claim to testator’s bounty.” This phrase was first included in the test in Beyers v. Billingsley,
Margaret had no equal, morally or legally, after 34 years of marriage, to her claim for testator’s bounty. It is ironic that if Frank had predeceased Margaret there would not have been any dispute. Even if the will had been set aside because of undue influence by Margaret, Margaret would have inherited Frank’s entire estate under the intestate laws. Frank’s sister, brother, and nieces did not have a claim equal to Margaret’s claim under the law as to Frank’s bounty, and in fact, they had no claim until Margaret predeceased Frank.
The trial judge found that Sharon did not exercise any undue influence over Frank, but the trial judge stated that Frank had not ratified “his purported decision to disinherit his family.” We can only infer from that statement by the trial court that the trial judge considered the nieces or their mother to have a claim to Frank’s bounty superior to Frank’s stepchildren. This finding that Frank’s sister and her children had a better claim to Frank’s
In Redmond v. Steele (1955),
“Family” is defined primarily as “all the people living in the same house” and as “a social unit consisting of parents and the children they rear.” (Webster’s New World Dictionary 489 (3d coll. ed. 1988).) Sharon was 13 years old when Frank became her stepfather, and Sharon lived with Frank until she reached her majority. For 34 years, Sharon was, in effect, Frank’s daughter. When Margaret died, Sharon was the one who came to Frank’s assistance. While Robert was not as close to Frank as Sharon, still he visited often and remained in close contact. Robert was the only son that Frank had. There is nothing in the evidence that indicates that the petitioner and her daughters, who visited on holidays and anniversaries, should be considered as having a better claim to Frank’s bounty than Sharon and Robert. In fact, the record supports the opposite conclusion. Frank’s “family” definitely included Sharon and Robert, and so Frank did not disinherit his family.
In our discussion of a fiduciary relationship, we have partially discussed the second test in Henke as to the testator being dependent on the substantial beneficiary, who is in a dominant role. The tests are interrelated, so that in order to establish a fiduciary relationship one needs to find a dependent situation. (Nemeth v. Banhalmi (1984),
The mere facts that the testator’s health was deteriorating, that he was characterized as withdrawn and disinterested, and that Margaret was talkative and outgoing, while being relevant, do not give rise to an automatic inference that she dominated the testator. The trial court specifically found that Frank had testamentary capacity. In fact, Frank apparently was in much better health than Margaret at the time the wills were executed, because the wills were executed at a time when Margaret was in the hospital for an illness from which she never recovered. The fact that Margaret had to drive, because Frank failed his driver’s test, may have given Margaret some control over Frank, but chauffeurs do not necessarily dominate the will of their passengers. Margaret did the shopping, laundry, cooking and cleaning (Frank did vacuum occasionally) and laid out Frank’s clothes for him every day. Surely, the fact that a wife or husband performs household chores and does personal things for the other spouse is not evidence of the spouse attempting to wrongfully gain influence over the other spouse. Further, all of these matters, if such are considered evidence of domination, raise the question, who dominated whom in this marriage? The trial judge viewed such evidence as a sign of weakness on the part of Frank, because
There was evidence that Frank trusted and had confidence in Margaret. This third test, however, is probably the least important, because a presumption of undue influence could arise, if such presumption applies to marriages, even if the testator did not have trust and confidence in the spouse. For instance, the spouse suffering from the “battered woman syndrome” or whose physical impairments cause reliance on the other spouse may not have trust or confidence in the spouse, but a presumption might arise if the facts supported a finding that the other three tests had been met. A general statement by a witness that the decedent had trust and confidence in his spouse without specifying facts that show such trust and confidence and as to what aspects the decedent had such trust and confidence in his spouse is almost meaningless. Suffice it to say that there was no evidence that Frank had an unusual or extraordinary amount of trust and confidence in Margaret, especially when difficult and important decisions had to be made, nor was there any testimony, other than Margaret wrote the checks to pay the bills and she filled in the tax returns, to support the general statement and conclusion that Frank had trust and confidence in Margaret.
Finally, in reviewing the evidence in relation to the last test as to whether the will was prepared or procured and executed in circumstances wherein the beneficiaries were instrumental or participated, it is interesting to note that attorney Tedesco testified that although he felt Frank was hesitant and unsure about to whom he desired to leave his property if Margaret predeceased him, Frank did in the first meeting indicate that he desired to leave his property to his nieces. Margaret certainly did not prepare, control, and influence Frank prior to this meeting. Nor did Margaret raise any objections in this meeting to Frank’s tentative contingent disposition of his property. There is no evidence as to what Frank and Margaret discussed afterwards. The only evidence is that Margaret at a later time told the attorney outside of Frank’s presence that Frank wanted his stepchildren to be the beneficiaries if she predeceased Frank. It is only conjecture that Margaret said or did anything to Frank to improperly influence Frank to change his mind as to who should be his contingent beneficiaries.
The mere fact that Margaret drove Frank to the law office for purposes of discussing a will does not raise a presumption of undue influence. (Henke,
From a procedural aspect, we are not sure if the trial court, at the close of petitioner’s case, determined that the evidence was sufficient to raise the presumption of undue influence or whether the trial court considered all of the evidence in making such a determination. If the trial court
Petitioner failed, even if we construe the evidence most favorably for petitioner, to present clear and convincing evidence to raise a presumption of undue influence by Margaret over Frank. Accordingly, we need not discuss whether petitioner proved undue influence without benefit of the presumption. Obviously, under the facts in this case, if petitioner failed to raise the presumption of undue influence, there was no Thayer bubble for respondents to burst. Thus, petitioner failed to make a prima facie case of undue influence.
In light of the foregoing, the judgment of the circuit court is reversed, and we remand said cause to the trial court with directions to admit the will of Frank Glogovsek to probate.
Reversed and remanded with directions.
GOLDENHERSH and MAAG, JJ., concur.