Dеfendants appeal from a judgment for plaintiff in an action for malicious interference with an expectancy and abuse of a confidential relationship. They contend that (1) plaintiff failed to exhaust her probate remedies; (2) plaintiff did not prove the essential elements of her cause of action; and (3) the trial court’s findings with regard to liability and compensatory damages are contrary to the manifest weight of the evidence.
Plaintiff Vera Nemeth (Vera), bom in Hungary in 1922, is the sole surviving child from the marriage of Rose Goldner (Rose) and Eugene Jacobovich (Eugene). After
In the fall of 1975, Vera moved to West Germany to reside near her recently-married daughter, and opened a small business there. Shortly thereafter, Rose suffered a stroke and Kornelia went to Norfolk
In the summer of 1976, while Vera was visiting from Germany, Paul executed a new will, again providing that Vera and Kornelia would share equally in his estate (the 1976 will). After Paul died in November of 1978, Vera was unable to locate the original of this 1976 will and submitted a copy thereof for probate on the theory that the original was lost. 1 At that time, she first learned that there was a subsequent will, executed on January 31, 1977 (the 1977 will), which provided that she should receive the Granby Street property and 50% of such corporate stock as remained at the time of Paul’s death. The balance of his property, both real and personal, was left to Kornelia. However, it further appeared that Paul destroyed the 1977 will shortly after it was executed. Since he had never adopted Vera, his entire estate passed to Kornelia as the sole heir under the laws of intestacy.
Kornelia petitioned the probate court for letters of administration, and Vera filed a complaint against Kornelia and George in that proceeding, alleging malicious interference with her expectancy under the 1976 will.
2
The probate court dismissed her complaint without prejudice, ruling that it was improperly brought as a supplemental proceeding. Vera then refiled her complaint in circuit court, seeking damages for malicious interference with her expectancy and abuse of a confidential relationship. The trial court dismissed that complaint for failure to state a cause of action, but we reversed that order and remanded for further proceedings in Nemeth v. Banhalmi (1981),
On remand, the action proceeded to trial, and Vera testified that although Paul never adopted her, she was raised in his household from the age of seven and was treated by him as his daughter. She used the name Sternberg socially, and always referred to Paul as her
Vera also statеd that she was in West Germany when her mother suffered a stroke, and returned home when informed that Rose was near death. At that time, Kornelia told her that their mother had taken several pieces of valuable jewelry with her when first hospitalized in Norfolk, and that it had disappeared; however, no police report was made, and the jewelry was not insured. After she (Vera) returned to Germany, Kornelia informed her that Paul had moved in with her, that they were renting a larger home to accommodate him, and that Paul contributed to the rent but gave her nothing for his board and care. However, when she visited again in the summer of 1976, she learned for the first time that Kornelia and George had purchased the house in joint tenancy with Paul, and that Paul had provided the entire $15,000 down payment. He explained to her that he agreed to the arrangement because he feared that if he did not, they would put him in a nursing home. He further proposed that they marry and he return to California with her, but she did not take his proposal seriously. When confronted, Kornelia did not explain why she had written that they were renting the home, stating merely that the arrangement was more practical than renting.
Vera further testified that during this visit, Paul executed the 1976 will, gave her $5,000, and promised to send her $10,000 more in monthly payments. He also decided to give each of Rose’s daughters a portion of her jewelry, which he had inherited on her death. They took the jewelry for appraisal, then Paul gave her a diamond pin valued at $15,000, gave Kornelia a share of equal value, and retained $9,000 worth himself, promising that it would be divided between them on his death. Vera also stated that she knew this did not represent all of the jewelry and gold coins their mother owned, but Kornelia did not
Vera next stated that she returned to West Germany, where she remained until the fall of 1977, when she moved back to Los Angeles. She did not see Paul during 1977, but did hear from Kornelia on several occasions. Kornelia frequently wrote that Paul had suffered business losses and was therefore reluctant to comply with his promise to give her $10,000. Kornelia also told her that Paul suffered a mild stroke in May of 1977, and had become confused and had difficulty remembering things. According to Kornelia’s letters and telephone calls, Paul became increasingly difficult throughout the fall of 1977, locking other family members out of the house, slamming doors, and acting childishly. However, Kornelia represented him as still sharp in business matters and able to handle his affairs, although he expressed fears that he might have to flee from nonexistent creditors and was afraid that “they” were trying to take his money away from him. She further represented that Paul was refusing to give them money, even though he was dependent on them for his care; she did not tell Vera that Paul had pooled his assets with theirs, or that George was assisting him in handling his business affairs. Throughout this period, she (Vera) received no letters from Paul and was rarely able to speak with him more than briefly during telephone calls; for the most part, when she called, members of the Banhalmi family gave some excuse why he could not come to the phone.
In early 1978, Kornelia told her in a letter that it had been a difficult two years, and a doctor had advised her that Paul would become more and more difficult to handle. There were constant arguments about money matters, and she and George had to pay most of Paul’s expenses out of their own funds. Later, in April 1978, Kornelia wrote that if Paul’s mental or physical condition became any worse, it would be necessary to place him in a nursing home. However, she (Vera) did not see Paul herself until June of 1978. At that time, she was shocked at his condition; he was very childlike and called her by her mother’s name. She proposed that he return to California with her, fearing that his health was such that he could not survive winter weather. Kornelia seemed to approve of that plan, but when it was proposed to George, he turned white and appeared frightened. Because of this reaction,
Vera further testified that during her lifetime, Rose always treated her daughters equally, giving both of them gifts of money and jewelry. She also received letters from Paul, signed “Father,” before he moved in with the Banhalmi family; thereafter, the most he did was sign letters written by Kornelia. Prior to her death, their mother had a number of gold coins, both foreign and American; now only Kornelia and George would know what happened to those coins or to jewelry which Paul inherited from their mother.
Kornelia, called as an adverse witness, testified that even as a child she was always treated more favorably than Vera, and that Paul did not like Vera and treated her as a distant relative. She (Kornelia) felt guilty about this and frequently begged Paul to give Vera things and to treat her better. In 1974 or 1975, Rose took her to her safe deposit box in Norfolk and gave her some of the jewelry, then told her that upon her (Rose’s) death she was to take the rest of the jewelry and keep it. Her mother explained to her that Vera “had already received more than her share,” but suggested that she not tell Vera about it. She complied because it was her mother’s wish and because she preferred to avoid a confrontation with Vera. When it appeared that records from the Norfolk bank did not confirm that Kornelia visited the box at the times indicated, Kornelia denied giving this testimony and said she never accompanied her mother to the safe deposit box. Kornelia also stated that Paul chose to live with her after Rose’s death, and insisted on paying his own way. It was his suggestion that they purchase a house rather than rent, and Vera was not told of this arrangement because it was Paul’s wish that she not know. She acknowledged that after Rose’s death, Paul was presented with three
Kornelia further testified that Paul returned to Norfolk for a few days after Rose’s death, accompanied by George, in order to wind up his affairs there. When he returned, he opened a savings account at Crawford Bank (the Crawford account) with an initial deposit of over $15,000, and a safe deposit box at Norfolk Trust and Savings Bank (Paul’s box). Her name was also on the Crawford account, but she denied that George was on the account. Upon seeing bank records, she admitted that George’s name was added to the Crawford account in August 1976, and that Paul’s box was rented in all three names. She also stated that she drove Paul to the bank frequently, but denied that she ever made deposits or withdrawals from the Crawford account; however, when shown bank records, she acknowledged that a number of withdrawal slips on that account were signed by her or George. Kornelia admitted that $20,531.35 was deposited on March 19, 1976, followed by a $10,000 withdrawal the same day; however, she could not explain where the money came from or what was done with the $10,000. In October 1978, after Paul was declared incompetent, she and George withdrew the remaining $2,000 from the account, but she could not recall what they did with that money.
Kornelia also stated that when Rose suffered a stroke in 1975, she had to go to Norfolk to help because Paul could not cope with the situation. After Rose’s death, Paul did depend on her to an extent. When Paul moved in with them, he might have brought some gold coins with him, and she remembered seeing coins on his dresser along with important papers, including a number of stock certificates. She later contradicted this and stated that those coins were in their safe deposit box and had never belonged to Paul. When Vera visited in 1976, she learned that Paul had provided $15,000 for the down pay-' ment on the house, and angrily demanded that Paul also give her $15,000. At the same time, Vera demanded a division of their mother’s jewelry, and she agreed to it although this was the jewelry that their mother had given to her. She acknowledged that she did not tell this to Vera and, as a result, she might have gotten the impression that Paul was giving her the jewelry. Kornelia admitted stating in a
Kornelia acknowledged that it had always been her understanding that Rose and Paul’s estate would be divided equally between the two daughters, and that Paul made a will to that effect in 1976. However, in 1977, Paul decided to make a new will, and she and George were present when he discussed its provisions with the attorney as well as when he executed it. After Paul’s death, she searched his effects for the original of the 1977 will but could not find it; she never saw him destroy any will.
Kornelia denied that Paul’s behavior changed after the 1977 stroke or that she discussed his poor mental condition with Dr. Mohacsy at that time, although she admitted writing a letter stating that he had a poor memory and complained that people were trying to take his money away from him. In late February 1978, Paul suddenly decided to give her all of his stock, mentioned in the 1977 will, and signed in her presence the stock certificates which he kept in his bedroom. Although the certificates were signed on March 1, they were not transferred until October, after Paul had been declared incompetent. The stock in question consisted of 200 shares of Exxon, 100 shares of General Motors, 100 shares of AT&T, and several shares of Chrysler. She further testified that at his death Paul had a few thousand dollars in cash, the Granby Street property, subsequently sold for $100,000, and the Del Argo Apartments, later sold for $380,000, and a joint interest in their home; he owned no gold coins, and no jewelry other than a gold watch. She also stated that George helped Paul with financial matters at his request, and that large bills were paid out of their joint account. Kornelia admitted that she, Susan, and Paul took a trip to Jamaica in 1978 which was financed from that account, but denied that trips she, George, and Susan took to Florida and Hawaii while Paul lived with them, or their trips after his death to Taiwan and the Middle East, were paid for with those joint funds. She stated that one factor in having Paul declared incompetent in September of 1978 was to keep Vera from gaining control over him;
Kornelia asserted that she never threatened to place Paul in a nursing home if he did not give her money and help purchase a house, nor did she ever tell him that he was suffering extensive business losses or that the cost of a nursing home was prohibitive. However, it was possible that she told him Vera was not an honest person and that she was emotionally disturbed, but this was to excuse her behavior toward him as illness, not meanness. Although Paul had always been somewhat eccentric and absent:minded, he was in good physical and mental health throughout 1977 and into 1978; he visited with friends during that time and played chess. She answered Vera’s letters to Paul because he did not want to write to her, not because he was incapable of doing so. Kornelia further testified that she and Paul had a very close relationship, and he told hеr in February or March of 1977 that he tore up the 1977 will to ensure that she, his natural daughter, would get everything and Vera, whom he did not like, would take nothing. Finally, Kornelia acknowledged that she and George had one safe deposit box before Paul came to live with them, but opened several more while he was residing there; they kept important papers, their jewelry, and George’s coin collection in those boxes.
The evidence deposition of Dr. Mohacsy, a psychiatrist, was admitted and she stated therein that she and Vera had been friends for 40 years. She knew the Sternbergs and Banhalmis in Hungary, and Kornelia called her seeking advice shortly after Paul suffered a stroke, although she could not remember whether that call took place in 1977 or 1978. During the call, Kornelia described Paul as senile and irritable, complaining that he was acting peculiarly, was forgetful and misplaced things, and that it was impossible to communicate with him.
Dr. Littman, Paul’s physician, testified that he treated Paul from February 1976 until his death. He did not remember each visit, but stated that his office notes disclosed that Paul suffered from mild emphysema in early 1976 and was hospitalized for pneumonia in September of that year. At that time, his emphysema was moderately severe, and an EKG showed probable remote damage to his heart. When he first met Paul, he spoke intelligently, and he did not note any signs of confusion until 1978. Dr. Littman further testified that Paul suffered a mild stroke episode in May 1977, and denied telling Vera that he suffered a series of small strokes. On September 2, 1978, he signed an affidavit stating that he examined Paul on that date and found him confused, disoriented as to time, place and person, and physicаlly and
Dr. Arieff, a psychiatrist and neurologist, testified that he had examined Paul’s medical records as well as depositions and, in his opinion, Paul suffered from progressive mental deterioration which reached a severe degree of dementia in September 1978, when he was declared incompetent. Such a condition is rarely precipitous; the deterioration would have taken place over an extended period of time. He found signs of deterioration for over a year before Paul was declared incompetent, and it appeared that this deterioration was intensified by the May 1977 stroke, as well as by the decreased flow of oxygen caused by emphysema. Hospital records from his 1976 admission indicated that nurses had difficulty obtaining a medical history and communicating with him, and that Paul was at times agitated and confused; however, while those could be signs of dementia, they could also be the result of fever. In his opinion, Paul was not able to manage his personal economic affairs from 1977 to his death in 1978.
Nicholas Burczyk, an expert in handwriting analysis, testified that he had compared signatures on Paul’s stock certificates with known examples of his handwriting and, in his opinion, taking into account that Paul was an elderly gentleman, Paul did not sign the stock certificates. He acknowledged that he did not have the original documents, but believed that he could give a reasonably accurate opinion because the copies were very clear.
George, called as an adverse witness, testified that in 1975 his after-tax income was $16,531.23, he had little savings, and he rented his home; therefore, one reason he agreed to Paul’s moving in with them was the chance to improve his financial standing. However, he liked Paul and would have taken him in under any circumstances. At the time of Rose’s death, he and Kornelia had one safe deposit box in
George further testified that Paul’s tax returns reflected the following after-tax income from his Norfolk property: $25,970.22 in 1976; $22,075.41 in 1977; $19,324.45 in 1978; and $19,375.01 in 1979 (estate return). This money was placed in their joint fund, and he could not recall exactly how the money was spent; he acknowledged that when they pooled their funds, his and Kornelia’s names were placed on Paul’s account, but Paul’s name was not added to their account, and he had no joint checking account with Paul. The only expenditure he specifically recalled making from those pooled funds was the purchase of a new automobile in his own name in 1977. During this same period, he and Kornelia had the following income: $18,150.39 in 1976; $21,904.33 in 1977; $21,500 in 1978; and $28,745.45 in 1979. In 1980, they had income of $24,624.47, and included in their return income from the Del Argo Apartments; in 1981, they had income of $39,733.80, but that return did not reflect the sale of the Del Argo Apartments. It sold for $380,000 but was subject to a $100,000 loan which they took out after Paul’s death to pay taxes and other expenses, including litigation expenses. George also stated that he saw Paul sign the stock certificates on March 1, 1978, but could not explain why dividends received in 1978 were reported on Paul’s estate tax return rather than on their income tax return.
George asserted that it was Paul’s idea to buy the house, and he decided to provide further money to pay for expenses and repairs when it became apparent that he and Kornelia could not manage on
Robert Homer, a jewelry appraiser, testified that when opened pursuant to discovery, the Banhalmi’s safe deposit boxes contained jewelry with a replacement value of approximately $50,000. He also examined the coin collection contained therein and found it to be of very little value, including as it did rolls of 1980-81 pennies, nickles, and dimes. He estimated the value of the entire collection at $5,697.80, including 11 gold coins of moderate value. The four missing pieces of jewelry described by Vera were not in the box; however, based on her descriptions and pictures of similar pieces, he estimated that the unaccounted-for items were worth between $25,500 and $121,000, depending on the quality of the stones, which he had no means of evaluating.
Nicholas Simon, a defense witness, testified that he had known George and Kornelia since 1957, and first met Paul at their home in 1976. At that time, Paul seemed very alert and сonversed intelligently about the theater and the arts. He visited their home eight to 10 times in 1977 and played chess with Paul on several occasions; Paul was a skilled player and frequently won their games. He appeared to have a close, affectionate relationship with the Banhalmi family but never spoke of Vera. Simon stated that he did not speak to Paul very much in 1978, and could not judge his mental condition at that time.
Pearl Abrahamson, a psychiatric social worker, testified that she had known the Banhalmis for 22 years. She met Paul frequently at their home, and during those visits he spoke knowledgeably and intelligently about political and historical matters, as well as current events, particularly Jewish issues and his own experiences during the Nazi occupation of Hungary. He had a warm, loving relationship with his family and participated actively with them in social events. She never noticed anything unusual about Paul’s behavior, but had not seen him for several months before he died. Abrahamson further testified that she met Vera on two occasions; the second time, in 1976, she was shocked to hear Vera speak seriously of marrying Paul.
Julia Curry, director of the speech and hearing clinic at the University of Illinois, testified that she first met Paul in 1976 when Kornelia brought him in for a hearing evaluation. He was alert and friendly and adapted well to the hearing tests, giving rapid responses.
Dr. Herron, a psychiatrist, testified for the Banhalmis that he had reviewed Paul’s medical records as well as depositions given in the case and, in his opinion, Paul was not mentally disabled in 1977 but was disabled shortly before his death in 1978. If Paul were suffering from senile dementia, tests would have shown a loss of past and recent memory and a change in personality, and he would have had a history of confusion, unreliability, and inability to care for himself adequately. However, Paul’s medical records did not reflect any tests, and the material reviewed did not suggest such a history, other than episodes of confusion during his 1976 hospitalization, but that was probably attributable to the fever he suffered at that time rather than senile dementia. The average duration of senile dementia is three to four years, and the disease might be characterized by increased forgetfulness, preoccupation with bodily functions, childlike conduct, and increased agitation. Dr. Herron stated that he had not seen Dr. Littman’s affidavit from the September 1978 incompetency proceeding, but it would not change his opinion, since he knew that Paul had been declared incompetent at that time. He acknowledged that Kornelia’s description related to Dr. Mohacsy was indicative of a person who might be demented, but he was unable to ascertain whether that description was given in 1977 or 1978. If Paul was exhibiting such conduct in 1977, he would be inclined to agree with the diagnosis of senile dementia, and that Paul was dementing in 1977; however, if his behavior was of shorter duration, he would be more inclined to attribute it to a stroke or similar, sudden disorder.
Laslo Boldizsar, an attorney, testifiеd that he first met Paul in 1976 in connection with the purchase of the Northbrook home. Later, he prepared the 1976 will at Paul’s direction, and Paul came to his office accompanied by Vera, Kornelia, and George to execute it. Paul was very alert at that time and wanted to be assured that signing the will would not prevent him from dealing with his property as he wished during his lifetime. Approximately six months later, Paul called and said he wanted to change the will in order to convey substantially more of his estate to Kornelia, explaining that he felt that distribution was only fair since he was living with her and being taken care of. Paul was quite coherent and, when shown a draft of the 1977
Boldizsar further testified that Vera called his office in 1978, asking if he had the original of the 1976 will. He told her that he searched his files and could not find it, but it did not occur to him to tell her about the 1977 will. He acknowledged that he did some legal work for George and Kornelia, including drafting their wills and handling the sale of Paul’s Norfolk real estate. He also stated that calls from Paul were usually initiated by a member of the Banhalmi family, and he had no way of knowing whether they stayed on the line during his conversations with Paul.
Roger Simon, Boldizsar’s law partner, testified that he witnessed the execution of the 1976 and 1977 wills. On both occasions, Paul appeared to be of sound mind and memory, and he observed him conversing with others and answering questions; however, he did not talk to Paul and did not know the content of the conversations that took place, since they were conducted in Hungarian — which he does not understand.
James Hayes, an expert in document examinations, testified that he compared the signatures on the stock certificates with known examples of Paul’s signature and, in his opinion, the differences therein were within the range of variation of one writer. His opinion was influenced in part by the fact that the signatures had a natural appearance and did not bear the common characteristics of forgery. Hayes acknowledged that there was a large variation in the signatures, but stated that it was necessary to take into account that the writer was quite elderly. He agreed that it was possible, but unlikely, that someone other than Paul signed the stock certificates.
Kornelia and George also testified in their own behalf, making statements consistent with those contained in their examination as adverse witnesses.
In an extensive memorandum opinion, the trial court found that Vera had an expectancy under the 1976 will; that there was a reasonable certainty that she would have received a devise of one-half of Paul’s estate but for defendants’ interference; that their interference was tortious; and that Vera was damaged thereby in the amount of $300,000. It awarded judgment for Vera in that amount, and assessed an additional $79,667.25 in punitive damages against defendants. Defendants’ post-trial mоtion seeking vacation or modification of the judgment was denied, and this appeal followed.
Opinion
Defendants first contend that the judgment should be reversed and plaintiff’s complaint dismissed, because an action for malicious interference with an expectancy under a will may not be maintained unless the plaintiff has exhausted her probate remedies. They acknowledge that they failed to raise this issue before the trial court or in the prior appeal from its order dismissing plaintiff’s complaint, but maintain that we may consider the issue and correct our “error” in reversing dismissal of the complaint for failure to state a cause of action in Nemeth v. Banhalmi (1981),
We agree that under certain unusual circumstances, where a complaint entirely fails to state a proper cause of action and that defect is not curable, it may be raised for the first time on appeal. (See, e.g., People ex rel. Difanis v. Futia (1978),
Defendants further suggest that this is a question of the trial court’s subject matter jurisdiction, arguing that probate cоurts in Illinois are vested with exclusive jurisdiction to hear and determine probate matters. Therefore, they posit, “exhaustion of probate remedies is not simply a matter of preference or judicial convenience; it is a matter of subject matter jurisdiction.” While it is true that at one time probate courts had original and exclusive jurisdiction of probate matters (In re Estate of Willavize (1960),
Moreover, we have considered the numerous cases cited by defendants, and it is our view that they do not support their argument. In some of those cases, the action involved not malicious interference with an expectancy, but wrongful destruction of a will. In
In a second line of cases cited by defendants, the plaintiff’s actions for malicious interference with an expectancy necessarily involved establishing the invalidity of a previously probated will, either by showing that a subsequent will existed which revoked the will admitted to probate (see, e.g., McGregor v. McGregor (D. Colo. 1951),
Defendants admit that the facts of this case are somewhat different, in that no will was submitted to probate and, in the absence of a petition to probate a will, plaintiff did not have available to her the remedy of a will contest. Nevertheless, they urge that the above cases are authority for the proposition that plaintiff should have attempted to probate the 1976 will, thus provoking them to present proof that it was revoked, at which point plaintiff would have been able to contest denial of admission of the 1976 will to probate pursuant to section 8— 2 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 1101/2, par. 8— 2); in effect, arguing that plaintiff had a duty to take steps to make the remedy available in a situation where it was otherwise unavailable rather than proceeding with her action for malicious interference. They acknowledge that the burden of proof would be the same in either action; i.e., that plaintiff would have to prove that revocation of the 1976 will was procured through the exercise of undue influence, but maintain that pursuing the action through probate proceedings was preferable.
We believe that, contrary to defendants’ assertions, there is a great deal of difference between holding that where a will has been submitted for probate, a plaintiff must avail herself of the statutory remedy of a will contest, and holding that where no will has been submitted, plaintiff must provoke a situation which would make the statutory remedy available rather than pursue her tort remedy. Defendants do not cite, nor has our own research discovered, any case so holding, although one case cited by defendants appears to make that statement. In DeWitt v. Duce (Fla. 1981),
Nevertheless, the DeWitt court went on to make the broad general statement that “[t]he rule is that if adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortious interference claim may be pursued” (
Defendants nevertheless assert that this action is in fact a collateral attack on the probate proceedings. The only proceedings to which they can have reference is their petition for letters of administration, since that is the only proceeding that was completed. In effect, then, they argue that those proceedings are res judicata on the
Defendants next contend that plaintiff has failed to prove an essential element of her cause of action, and the trial court’s judgment must be reversed. It is their position that plaintiff has not proved the existence of an expectancy, maintaining that, in the absence of an express finding that the 1977 will and its subsequent revocation were invalid, the trial court could not properly have found that plaintiff had an expectancy under the 1976 will.
It is apparently defendant’s argument that if the trial court did not discuss in its memorandum opinion whether Paul was acting under duress or undue influence in executing the 1977 will, then it must have failed to consider that issue. We disagree. That finding is implicit in the court’s findings that plaintiff had an expectancy under the 1976 will and that the devise therein would have been received but for defendants’ tortious interference. Moreover, the trial court need not make any findings of fact, and the failure to make a specific finding is not grounds for reversal (Inter-Insurance Exchange v. Travelers Indemnity Co. (1965),
Defendants do not dispute that an expectancy existed at the time Paul executed the 1976 will; it was identical to an earlier will which also evidenced an intent to divide his estate equally between Vera and
A prima facie case of undue influence is established, and a presumption thereof 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.” (Beyers v. Billingsley (1977),54 Ill. App. 3d 427 , 436-37,369 N.E.2d 1320 , 1327.)
Once these elements are shown, the burden is on the proponent of the will to present evidence tending to rebut the presumption (Tidholm v. Tidholm (1945),
This standard, then, requires a three-tiered inquiry on review: (1) whether plaintiff established a prima facie case of undue influence; (2) if the prima facie case was established, whether defendants introduced evidence sufficient to rebut the resultant presumption; and (3) if the rebuttal evidence was sufficient, whether the trial court’s determination that the 1977 will was the product of undue influence is contrary to the manifest weight of the evidence.
With regard to the first step in our analysis, we believe that plaintiff did establish a prima facie case of undue influence sufficient to raise a presumption thereof. There is evidence that, although never formally adopted, she enjoyed a warm familial relationship with Paul and had been treated as his daughter until he took up residence 'with defendants; that defendants substantially benefited by the 1977 will in comparison to her; that at the time of revocation, Paul was 86 years old and suffering from moderately severe emphysema and senile dementia; that Paul depended on defendants for his physical care, transportation, and transaction of his financial affairs; that he reposed considerable trust and confidence in then, turning over all of his assets to them as well as management of his financial affairs; that defendants limited plaintiff’s access to Paul and told him that she was of low moral character, mentally ill, and treated him badly, while giving him the impression that they were assuming a considerable financial burden in providing for his care; and that defendants contacted the lawyer who drafted the 1977 will, were present at each stage of its preparation and execution, and participated in the discussion of its provisions.
The next question, then, is whether defendants presented sufficient evidence to rebut the presumption. As we noted, the quantum of evidence necessary in rebuttal depends on the circumstances of each casе. Here, since no fiduciary relationship existed as a matter of law, the only circumstance which might increase the quantum of evidence necessary is proof that Paul was enfeebled by age or disease in January 1977, when the 1977 will was executed, rendering him unusually susceptible to. the exercise of undue influence. It appears from the testimony that Paul was 86 and suffering from emphysema and, in all probability, at least the early stages of senile dementia. This last finding is vehemently denied by defendants; however, we do not believe that it is particularly relevant at this juncture, because despite these ailments, plaintiff’s own testimony established that Paul was mentally alert just six months before executing the will, and the only testimony
We therefore reach the third level of our analysis, i.e., whether the trial court’s judgment is contrary to the manifest weight of the evidence. In considering this issue, we must bear in mind that it is the province of the trial court, when sitting without a jury, to resolve disputed questions of fact and to determine the credibility of witnesses and the weight to be given their testimony (MBL (USA) Corp. v. Diekman (1983),
Defendants maintain that three findings relevant to this issue are contrary to the manifest weight of the evidence. First, they assert that plaintiff’s relationship,with Paul was such that she was not a natural object of his bounty. In effect, they argue that this poor relationship, rather than any undue influence on their part, explains his decision to alter his will in their favor. Second, they contend that Paul was not dependent on them, thus negating the finding that a fiduciary relationship existed. Finally, they maintain that the evidence entirely fails to show that they procured or in any way participated in the drafting and execution of the 1977 will.
With regard to plaintiff’s relationship to Paul, the trial court found, based on her testimony, that a loving father-daughter relationship existed. This finding is supported by the fact that in the 1975
Defendants and their daughter, on the other hand, asserted that Paul disliked plaintiff to the degree that he would not answer her letters or talk to her on the telephone, avoided her when she visited, and did not even want her present at his funeral. However, the trial court found that their testimony on this issue was not credible, and we will not substitute our judgment thereon. Nevertheless, they maintain that there was ample “objective” proof of a strained relationship, as evidenced by the fact that Rose had to “make” Paul sign the 1975 will in order to protect plaintiff, and that plaintiff “compelled” him to execute the 1976 will and to give her the jewelry. This interpretation of the facts is possible if we accept defendants’ testimony regarding the relationship between plaintiff and Paul; however, if we accept plaintiff’s testimony, then the inference arises that these acts were the result of Paul’s fatherly affection for both women. It is settled that “ ‘[wjhere *** several reasonable inferences are possible from conflicting testimony, we are obligated to accept those which support the trial court’s order.’ ” (Kelley v. First State Bank (1980),
Turning to the relationship between defendants and Paul, we note that a fiduciary relationship may exist as a matter of law, “or it may be moral, social, domestic or even personal in its origin.” (Wiik v. Hagen (1951),
Defendants argue that Paul freely placed himself in their care, and posit that, under those circumstances, no dependent relationship existed because he could have chosen to depend on others. We disagree. This contention does not negate the existence of a fiduciary relationship; that he chose to depend entirely on defendants is a measure of the absolute trust and confidence that he reposed in them; it does not make him any the less the dependent party in the relationship. The central issue is not whether he chose to depend on defendants rather than on others, but whether defendants used this choice to their advantage.
The final question we must address with regard to this issue is the circumstances surrounding execution of the 1977 will. It appears from the testimony that defendants made the initial contact with the attorney for Paul, were present when the will was discussed and when it was executed, and participated in the discussions. Defendants, however, point to the testimony of the attorney and witnesses as proof that Paul was mentally competent and acting of his own free will. The testimony with 'regard to his mental competency, of course, goes to testamentary capacity, which is not in issue here. Moreover, the only witness who testified stated that he could not relate the substance of the conversations between Paul, defendants, and the attorney who drafted the will, because they were conducted in Hungarian — a language he did not understand. The evidence, then, turns on the testimony of the drafting attorney, and wе find his statements of little assistance on this issue. He never spoke to Paul outside defendants’ presence, and although he was cognizant of the drastic alteration in an elderly client’s dispositive scheme over a period of just six
We must turn, then, to the circumstances which occurred between June 1976, when it was clearly Paul’s will that the two women he referred to as his daughters be treated equally, and January 1977, when that intention apparently changed. During that period, Paul was living with defendants and dependent upon them. Kornelia acknowledged making statements to him that plaintiff was of low moral character and a liar, and that she was mentally ill, asserting that the latter statement was to “excuse” plaintiff’s conduct toward Paul “as illness, not meanness,” apparently suggesting to Paul that he was receiving poor treatment from plaintiff. In contrast to this, defendants stated that Paul knew that if he came to live with them they would have to have a larger residence; that he knew the burden of this larger home was beyond their means; and that he agreed to pay them, first $1,000 per month, then his entire income in return for the burden they had assumed in caring for him. Also during this period, Paul was hospitalized for a time with pneumonia and moderately severe emphysema, and spent a short time in a nursing home thereafter as part of his recuperation. It could reasonably be inferred from this testimony that Paul came to believe, through defendants’ discussions with him, that plaintiff was immoral and mentally ill and treated him badly, while defendants were caring for him and making financial sacrifices on his behalf. His illness might reasonably have reinforced in his mind his dependency on defendants, as well as his desire to remain with them rather than be placed in a nursing home.
Defendants assert that all of the testimony indicates that they treated Paul with love and kindness, and that because of their care, it was natural that he would want to benefit them more than plaintiff, and that this intention was evidenced in the 1977 will. However, the question here is undue influence, not duress; on that issue, it need not be shown that the testator was abused or coerced. A number of courts have noted that the question is the degree of influence acquired, not the manner in which it was acquired. In Swenson v. Wintercorn (1968),
“The normal influence gained or acquired by affection or kindness is not undue influence under the law. If, however, the degree of influence so-acquired is such as to deprive the testator of her own free will and agency, then it does become undueinfluence. In the absence of fraud or similar conduct, whether the influence is wrongful or undue depends not on the manner of influence, but on the degree of influence. Thus, even though influence is not acquired in any untoward manner, if it deprives the testator of his free agency, it is wrongful and undue.”
Similarly, in Kelley v. First State Bank (1980),
“If kindness and affection result in overcoming the testator’s free agency and leave the will that of the beneficiary rather than the testator, then such constitute undue influence.” (81 Ill. App. 3d 402 , 414,401 N.E.2d 247 , 256.)
Thus, undue influence, whatever its origin, is “ ‘any improper *** urgency of persuasion whereby the will of a person is overpowered and he is induced to do or forbear an act whiсh he would not do or would do if left to act freely.’ [Citation.]” (Franciscan Sisters Health Care Corp. v. Dean (1983),
Defendants next contend that various findings of fact are contrary to the manifest weight of the evidence. The major elements of their arguments have already been addressed in our consideration of the last issue. Because defendants alleged that the trial court merely adopted findings suggested by plaintiff, rather than reaching its own conclusions, we have carefully reviewed the testimony and exhibits on
Defendants have also suggested that the trial court was so biased against them that “he has abandoned his duty to be fair and impartial in his consideration of the evidence,” and we should therefore give little weight to the findings. We have searched the record for any indication of bias, and have found instead that the trial court conducted this 13-day trial with fairness, impartiality, and considerable patience. In its extensive memorandum opinion, the trial court did express its views on the credibility of the witnesses, but we believe that this was offered in explanation of its findings and was not reflective of any impartiality or bias in reaching those conclusions. Furthermore, what defendants particularly object to are the trial court’s findings with regard to their motivation. In our view, such findings are irrelevant in any event, since, in proving the elements of her action, plaintiff need show only tortious conduct on defendants’ рart, not their motivation in engaging in that conduct.
Finally, defendants contend that the amount of compensatory damages awarded is contrary to the manifest weight of the evidence. The trial court’s memorandum opinion does not state the basis for its award of $300,000; however, as with any factual finding, we may affirm if the amount is supported by the evidence. (Farwell Construction Co. v. Ticktin (1980),
Under the expectancy found to exist, plaintiff would have received
(1) Real Estate. The Del Argo Apartments, which sold for $380,000, and the Granby Street property, which sold for $100,000, as well as a one-third interest in the Northbrook home, which had an appraised value of $90,000, were clearly owned by Paul at the time of his death. Testimony established that defendants received $250,000 on the sale of the Del Argo Apartments, but $100,000 of the $130,000 difference went to repay a loan that they procured after Paul’s death, using the property as security, while the remaining $30,000 went to pay the costs of selling the property. The trial court could have found that the value of this property was $250,000. Defendants’ income tax return indicated that they received $47,000 from the sale of the Granby Street property. These prices reflect a higher value than the appraised value contained in the 1979 estate tax return, but we believe that the trial court could have found that the actual selling price was a more accurate reflection of the property’s value. The 1979 estate tax return values the interest in the Northbrook home at $30,000. The evidence, then, would support a finding that Paul’s estate included real estate with a value of $327,000.
(2) Stocks. The trial court found that a number of stock certificates purportedly transferred to defendants by inter vivos conveyance were forged. Defendants dispute this finding, but as noted above, their argument is based on the credibility of the witnesses and the reasonable inferences to be drawn from the circumstances. Therefore, the evidence supports a finding that they should be included in the estate. Plaintiff suggested at trial that this stock be valued at its selling price of $19,350, and that figure is supported by the evidence.
(3) Jewelry. The trial court could have found that Paul retained $9,000 worth of jewelry in 1976 when he gave each of the women a share; and that jewelry with an appraised value of $57,050 was contained in defendants’ safe deposit boxes after Paul’s death (the 1983 appraisal), and the jewelry included therein and not otherwise accounted for was properly included in Paul’s estate. However, a comparison of the 1976 appraisal on which Paul’s $9,000 share is based and plaintiff’s testimony regarding what Paul and Kornelia received in the 1976 distribution reveals that three of the pieces included in the 1983 appraisal were items given to Kornelia in 1976, and they
1983 appraisal $57,050
1976 appraised value of Paul’s share 9,000
$66,050
Less 1976 items included in 1983 appraisal (3,400)
Less items included in 1983 appraisal which were given to Kornelia in 1976 (31,250)
Total jewelry: $31,400
(4) Income. Paul’s estate generated $19,323.45 in income after his death, which clearly should be included in his estate. During the period of his residency with defendants, his income was pooled with theirs and thereafter expended by them. The trial court could have found that Paul’s action in pooling his income with that of defendants was the product of duress or undue influence, and therefore could have included some portion of the $67,370 he received in income from 1976 through 1978 as part of his estate. Of course, this income could have been offset by proof of reasonable expenses incurred during his lifetime; however, defendants, who are the only parties having access to that information, testified that those funds were commingled with their own, and that no accounting was possible because they failed to keep records. Thus, plaintiff was unable to show Paul’s expenses for the relevant period, and defendants made no attempt to present evidence which would have supported a setoff of expenses against this element of damages. Nevertheless, we believe that one expense can be ascertained from the record. If we are to include in Paul’s estate a one-third interest in the Northbrook home, it is only equitable that the reasonable expenses of acquiring that interest be set off against his income. The evidence discloses that a down payment of $15,000 was made in 1976, and thereafter monthly mortgage payments totaling $17,920 were made during Paul’s lifetime (payments of $564 per month from April 1976 through November 1978). Since Paul had a one-third interest in the house, one-third of the expenses should be
Income from 1976 through 1978: $66,050
Less one-third of the $15,000 down payment: (5,000)
Less one-third of the $16,920 mortgage payments: (5,640)
Total income: $55,410
Plaintiff suggests that there was evidence to support inclusion of several other items in Paul’s estate. First, she asserts that George’s coin collection should be included, apparently on the theory that the coins were purchased from the pooled funds, and the 11 gold coins therein were Paul’s property. We disagree. Even if the coins were purchased with joint funds, Paul’s share of the funds are included in the income found to be a part of his estate, and plaintiff may not reсover twice for the same item. Furthermore, it appears from plaintiff’s own testimony that Kornelia received nine gold coins as part of her share in the 1976 distribution of Rose’s jewelry, and it was Susan Banhalmi’s uncontroverted testimony that several of the gold coins were gifts to her from Rose; this adequately accounts for the gold coins included in George’s collection. Plaintiff also asserted that Rose and Paul had a number of other gold coins, although she did not state that she ever saw them, or even estimate how many they might have owned. Instead, she asked the trial court to speculate that some unspecified number of coins existed, that they had once been kept in the five safe deposit boxes that defendants rented, and that defendants had concealed them somewhere prior to trial. This rank conjecture falls far short of the reasonable degree of certainty required to sustain a finding of damages.
Plaintiff also maintains that the trial court could have found that defendants converted items of jewelry other than those contained in the safe deposit boxes. She testified that her mother owned four unaccounted-for items, and an expert appraiser estimated their value at $25,500 to $121,000, based on pictures of purportedly similar pieces. However, plaintiff also stated that she last saw these items in her mother’s possession in 1972 or 1973; there was simply no evidence to indicate what happened to them between 1973 and Rose’s death, or that, as plaintiff conjectured, defendants had them hidden at some unknown location. As with the gold coins, this speculative testimony does not provide the fair degree оf probability which case law requires as the basis for an award of damages.
Real estate: $327,000
Stock: 19,350
Jewelry: 31,400
Estate income: 19,324
Income during lifetime: 55,410
Gross estate: $452,484
However, we cannot say that plaintiff was damaged in the amount of one-half of the gross estate, since it is clear from the 1979 estate tax return that various expenses and taxes were paid out of the estate prior to distribution. Had plaintiff received half of Paul’s estate as a beneficiary, half of the expenses would have been allocable to her.
The 1979 estate tax return shows the following deductions from Paul’s estate:
Funeral expenses: $ 1,679
Probate costs: 1,251
Tentative tax liability: 81,992
Total deductions: $84,922
We believe that the estimated tax figure is low, since the return values Paul’s Norfolk property at a price substantially below its eventual selling price, upon which we calculated the gross estate, and does not include any of the items of jewelry and income which the trial court could have found were properly included in the estate. Nevertheless, defendants presented no expert testimony on what the taxes would have been, and we will not speculate on that issue. We also note that the 1979 estate tax return includes a deduction from the estate of $40,000 in estimated attorney fees. However, this is merely an estimate, and there is no evidence of the actual attorney fees paid in connection with probating the estate, as opposed to defending litigation occasioned by defendants’ tortious conduct; therefore, we do not believe that this figure should be included in calculating what distribution plaintiff would have received from Paul’s estate.
It is our view, then, that while Paul's gross estate could properly have been valued at $452,484, plaintiff’s damages should have been based on an estate of $367,572, taking into account the costs and taxes which would have been deducted prior to distribution. It appears that the trial court’s finding with regard to compensatory damages that Paul’s estate had a value of $600,000, entitling plaintiff to $300,000 in damages, is contrary to the manifest weight of the evidence.
For the foregoing reasons, the trial court’s order is modified to provide for compensatory damages of $183,781, and the judgment is affirmed as modified. 3
Affirmed as modified. ■
LORENZ and WILSON, JJ., concur.
Notes
Vera’s motion to voluntarily dismiss the action was granted in January of 1980.
Vera also filed a claim against the estate, alleging the existence of a contract between Rose and Paul under which they agreed to make wills for the equal benefit of Vera and Kornelia, and a breach thereof by Paul. In January of 1980, Vera’s motion for leave to withdraw her claim was granted when it appeared that the estate assets were insufficient to satisfy her claim.
It should be noted that no question was raised on appeal as to the propriety of the punitive damages awarded.