In re Estate of Mank

FIFTH DIVISION
August 14, 1998

No. 1-96-2699

In re ESTATE OF HELEN M. MANK, Deceased )
)
(Sally Palmer Canfield, Denise Ferchaud, )
Anne Stentiford, Gregory Stentiford, ) Appeal from
Mitchell Stentiford, Kari Stentiford-Bynum, ) the Circuit Court
Betsy Youngquist, Charles Youngquist, ) of Cook County.
Jeremy Youngquist, Joseph Youngquist, )
Lance Youngquist, Matthew Youngquist, and )
Susannah Youngquist, )
) No. 95-P-5157
Petitioners-Appellants, )
)
v. )
) Honorable
Stefan I. Mozer, Guardian of Alvin W. Mank, ) Robert Cusack,
and First National Bank of Chicago, ) Judge Presiding.
Adm'r with the Will Annexed of the Estate )
of Alvin W. Mank, Deceased, )
)
Respondents-Appellees). )

JUSTICE THEIS delivered the opinion of the court:

We are asked to decide whether the trial court erred when, as a
matter of public policy, it refused to disinherit a disabled adult
ward under the terms of the in terrorem clause in his deceased
sister's will because his court-appointed guardian, at the suggestion
of the court, filed a petition to contest the will for the limited
purpose of tolling the statute of limitations. For the following
reasons, we affirm the trial court's decision not to enforce the
clause.
Helen M. Mank (Helen) died testate on May 20, 1994, at the age of
95, leaving a substantial estate. At her death, Helen's sole heir was
her brother and only sibling, Alvin W. Mank (Alvin). At the time of
Helen's death, Alvin and Helen resided in the same building and held
significant assets in joint tenancy.
In article 10 of her will (the will) of September 18, 1990, Helen
bequeathed her condominium and its contents to Alvin, if he should
survive her. The will also names Alvin as a co-executor of Helen's
estate. Additionally, articles 5 through 9 and articles 11 and 12 of
the will bequeath certain amounts of money and stocks to various
individuals and charitable organizations. Specifically, article 11 of
the will bequeaths to 17 individuals 1,000 shares each of Abbott
Laboratories stock. Those 17 individuals are the nieces, nephews,
grandnieces, grandnephews, and great-grandnephews of Helen's sister-
in-law, Alvin's late wife. Certain of those individuals (the article
11 legatees) comprise the appellants in this action. Article 11 also
contains an anticontest or in terrorem clause, which reads as follows:
"If any beneficiary shall commence or, except as
required by law, participate in any proceedings to
contest the validity of this will or especially
Article 11 hereof, or to assert any claim based on
an alleged agreement to make a will or otherwise
dispose of my estate, such beneficiary shall
forfeit whatever interest he would have taken under
this will and my estate shall be administered and
distributed as though he had predeceased me."
Article 13 of the will leaves one-half of the residue of Helen's
estate to Alvin, if he survives her, and the other half, or whole if
Alvin does not survive Helen, in equal shares to the individuals
listed in article 11.
On June 22, 1995, Richard Moore (Moore or the executor), who was
named in the will as a legatee and as successor executor, filed a
petition for probate. On that date, Moore was appointed independent
executor of Helen's estate and letters of office were issued.
Several weeks later in a separate proceeding on July 14, 1995,
the circuit court adjudicated Alvin to be a disabled person. On
August 31, 1995, the circuit court appointed Stefan Mozer (Mozer or
the guardian) to serve as the successor guardian of the estate and
person of Alvin W. Mank pursuant to sections 11a-3 and 11a-15 of the
Probate Act of 1975. 755 ILCS 5/11a-3, 11a-15 (West 1994).
At some point, a question arose as to whether Moore could recover
for the estate any of the assets held by Alvin and Helen in joint
tenancy. A question also arose as to whether Mozer would contest
Helen's will. These questions were resolved when Moore, as executor
of Helen's estate, agreed to concede that all of the disputed joint
assets were Alvin's, and, Mozer, as Alvin's guardian, agreed to waive
Alvin's right to contest Helen's will. The proposed mutual settlement
and release agreement was reduced to writing and submitted to the
court for approval.
The circuit court proceedings as to Alvin's guardianship and
settlement agreement were not included in the record on appeal.
However, a memorandum filed by article 11 legatees in support of Sally
Canfield's motion for distribution to substituted takers states that
Mozer's petition for approval of the settlement was filed on or about
November 29, 1995. That memorandum also indicates that on December 1,
1995, Mozer advised the circuit court of the petition, and the court
appointed Barbara Chuhak Bernau, the guardian ad litem (GAL) of Alvin
Mank who had been appointed to review fee petitions in the
guardianship case, to review the settlement agreement. The parties
agree that, at that time, Mozer apprised the circuit court of his
belief that the deadline for filing a will contest was fast
approaching and of his intention, if the necessity arose, to file a
will contest petition before the deadline. The parties reference and
do not dispute that the court responded to Mozer's concern with the
following suggestion: "Perhaps you could file kind of a pro forma
will contest petition to contest the will, so that it can be amended
at a later time, but that's sufficient legally to toll the statute of
limitations."
Accordingly, on December 14, 1995, Mozer, acting as guardian of
Alvin's person and estate, filed a petition to contest Helen's will,
asking the circuit court to set aside the will. Mozer alleged in the
petition that Helen suffered from arteriosclerotic heart disease and
various other ailments when she executed her will at the age of 91.
Mozer further alleged that Helen lacked the requisite mental capacity
to execute a will because she was "of unsound mind and memory and was
unable to understand the nature and extent of her property."
Thereafter, the GAL submitted a report to the circuit court,
stating that the proposed settlement agreement was in Alvin's best
interests. Consequently, on January 23, 1996, the court entered an
order approving the settlement agreement as a compromise of any claim
on behalf of Alvin regarding the sufficiency of Helen's will. The
order called for the withdrawal of the will contest with prejudice
upon receipt of the executed agreement. However, for reasons not
clear from the record, Mozer did not then file a motion to dismiss the
will contest even though the agreement was executed the day after the
order approving it was entered.
On March 22, 1996, Sally Canfield (Canfield), an article 11
legatee, filed a motion for distribution to substituted takers
pursuant to former Rule 12.2(f) of the circuit court of Cook County.
Cook Co. Cir. Ct. R. 12.2(f) (eff. April 27, 1984). At the same time,
Canfield also filed a motion for summary judgment, seeking to
disinherit Alvin under the in terrorem clause of Helen's will because
Mozer had filed a petition to contest the will. Canfield requested
that the bequest made to Alvin be redistributed to the article 11
legatees, some of whom, as previously noted, also filed memoranda in
support of Canfield's motion.
On April 2, 1996, Mozer filed a petition to dismiss the will
contest, attaching as exhibits a copy of the settlement agreement and
a copy of the court's order approving the agreement and requiring,
upon its execution, withdrawal of the will contest with prejudice.
The same day, the circuit court granted Mozer's petition and dismissed
the will contest with prejudice.
On April 19, 1996, Moore filed a petition, seeking directions
from the circuit court as to whether the in terrorem clause was
enforceable against Alvin. On May 13, 1996, the court entered an
order stating that Canfield had withdrawn her motion for summary
judgment. Thus, only Canfield's motion for distribution to
substituted takers and Moore's request for instructions regarding the
in terrorem clause remained, all other motions and petitions having
been dismissed or ruled upon by the circuit court.
On June 26, 1996, the circuit court entered an order denying
Canfield's motion for distribution to substituted takers. In denying
the motion, the court issued the following instructions regarding the
effect of the in terrorem clause pursuant to section 28-5 of the Act.
755 ILCS 5/28-5) (West 1994). The court found that the petition to
contest the will had been dismissed with prejudice in keeping with the
order entered on April 2, 1996, it having been represented to the
court that all matters in controversy were settled. The court further
found that it is against public policy in Illinois to enforce an in
terrorem clause against a minor and concluded that, therefore, it is
also against public policy to enforce an in terrorem clause against a
disabled adult ward. Upon entry of the circuit court's order, 13 of
the article 11 legatees filed this appeal.
Alvin died on December 29, 1996. The circuit court appointed the
First National Bank of Chicago as administrator with the will annexed
of the estate of Alvin W. Mank, deceased. This court permitted the
administrator to be added as a party to this appeal on August 13,
1997. The Attorney General of the State of Illinois submitted a brief
pursuant to his authority under the Illinois Charitable Trust Act (760
ILCS 55/1 et seq. (West 1996)), seeking to safeguard charitable
bequests made by Alvin in his will, the amount of which would be
reduced if the in terrorem clause of Helen's will were enforced.
Except as limited by statute or contract, a testator has the
right to distribute her property as she wishes. Logsdon v. Logsdon,
412 Ill. 19, 26, 104 N.E.2d 622, 625 (1952); Continental Illinois
National Bank & Trust Co. of Chicago v. Bailey, 104 Ill. App. 3d 1131,
1139, 433 N.E.2d 1098, 1103 (1982). Moreover, it is fundamental that,
in construing a will, the intention of the testator, as derived from
the provisions of the will, is to be given effect unless contrary to
law or in violation of public policy. Weber v. Hawkins, 30 Ill. 2d 278, 283, 196 N.E.2d 695, 698 (1964); Weilmuenster v. Swanner, 404 Ill. 21, 24, 87 N.E.2d 756, 758 (1949). Additionally, a will must be
construed as a whole and every word, phrase and clause given effect if
possible. Feder v. Luster, 54 Ill. 2d 6, 11, 294 N.E.2d 293, 295
(1973).
"Generally, conditions in a clause against contesting the will or
attempting to set it aside are valid." In re Estate of Wojtalewicz,
93 Ill. App. 3d 1061, 1063, 418 N.E.2d 418, 420 (1981) (in terrorem
clause at issue, though valid and violated, held unenforceable as
against law and public policy where legatee exercised statutory right
to challenge appointment of executor of estate, alleging waste to
estate resulting from proposed executor's inaction and conduct).
However, though they may be valid, such clauses are disfavored and are
strictly construed to avoid forfeiture. Wojtalewicz, 93 Ill. App. 3d
at 1063, 418 N.E.2d at 420. Illinois courts are further guided by
"the well-established rule that equity does not favor forfeitures, and
in construing conditions, both precedent and subsequent, a reasonable
construction must be given in favor of the beneficiary." Clark v.
Bentley, 398 Ill. 535, 540, 76 N.E.2d 438, 441 (1947).
As our supreme court previously emphasized, the proper
disposition of a given case may not lie in a "purely lexicographical
approach" to the in terrorem clause at issue but, rather, in the
court's examination of the clause in relation to the peculiar position
of the parties. See Oglesby v. Springfield Marine Bank, 25 Ill. 2d 280, 287-89, 184 N.E.2d 874, 878-79 (1962). Similarly, in this case,
our analysis does not begin and end with the language of the clause
and the conduct at issue. Rather, we must consider whether, under the
particular facts and circumstances of this case, application of the
clause to the conduct would be contrary to the law or to the public
policy of Illinois.
We turn first to Alvin's legal status and to the legal status of
Mozer, the person who filed the petition to contest the will on his
behalf. Alvin was adjudicated a disabled person, and the court
appointed Mozer the guardian of Alvin's estate pursuant to section
11a-3(a) of the Act. 755 ILCS 5/11a-3 (West 1994). Section 11a-3(b)
of the Act sets forth the general purpose and policy behind the
appointment of a guardian for a disabled adult ward in this state:
"Guardianship shall be utilized only as is necessary to promote the
well-being of the disabled person, to protect him from neglect,
exploitation, or abuse, and to encourage development of his maximum
self-reliance and independence." 755 ILCS 5/11a-3(b) (West 1994).
In Illinois, "[t]he trial court protects the disabled person as
its ward, vigilantly guarding the ward's property and viewing the ward
as a favored person in the eyes of the law." In re Estate of Wellman,
174 Ill. 2d 335, 348, 673 N.E.2d 272, 278 (1996). "Generally, the
trial court functions in a central role which permits it to oversee
and control all aspects of the management and protection of the
incompetent's estate." In re Estate of Berger, 166 Ill. App. 3d 1045,
1055, 520 N.E.2d 690, 696 (1987). The court controls the ward's
person and estate and directs the guardian's care, management, and
investment of the estate. Wellman, 174 Ill. 2d at 348, 673 N.E.2d at
278. The guardian only acts as the hand of the court and is at all
times subject to the court's direction in the manner in which the
guardian provides for the care and support of the disabled person. In
re Estate of Nelson, 250 Ill. App. 3d 282, 287, 621 N.E.2d 81, 85
(1993).
The court's protection of an adult disabled person is
effectuated by those appointed by the court to act as guardian of the
ward's person, guardian of the ward's estate, guardian ad litem, and
in some instances, counsel for the ward. "The appointment of a
guardian creates the relation of trustee and beneficiary between the
guardian and the ward." In re Estate of Wellman, 174 Ill. 2d 335,
347, 673 N.E.2d 272, 278 (1996). Section 11a-17(a) of the Act
specifically provides that the guardian for the person of a disabled
adult is to act "[t]o the extent ordered by the court and under the
direction of the court." (755 ILCS 11a-17(a) (West 1994). The court
is duty bound to intervene if the guardian of the person is about to
cause harm or threaten harm to the ward. In re Estate of Nelson, 250
Ill. App. 3d 282, 287, 621 N.E.2d 81, 85 (1993).
In this instance, Mozer, the court-appointed guardian who
negotiated the mutual release and settlement agreement and filed the
petition to contest the will on Alvin's behalf, was charged by statute
with facilitating the trial court's protection of Alvin's estate and
with promoting Alvin's wellbeing. At the same time, Bernau, in her
capacity as GAL of Alvin, functioned as the "`eyes and ears of the
court'" in determining whether the mutual release and settlement
agreement was in Alvin's best interest. See In re Guardianship of
Mabry, 281 Ill. App. 3d 76, 88, 666 N.E.2d 16, 23-24 (1996), quoting
In re Marriage of Wycoff, 266 Ill. App. 3d 408, 415, 639 N.E.2d 897,
904 (1994).
Mozer's conduct, like the conduct at issue in Oglesby, was
undertaken pursuant to a fiduciary duty owed by him to protect and
promote the interests of another. In re Estate of Dyniewicz, 271 Ill.
App. 3d 616, 622, 648 N.E.2d 1076, 1081 (1995) (fiduciary relationship
between guardian and ward is equivalent to one between trustee and
beneficiary, rendering fiduciary duties owed similar as to each). In
Oglesby, the court emphasized that the beneficiary was not asserting
"a purely personal interest in derogation of the provisions of her
mother's will." Oglesby, 25 Ill. 2d at 288, 184 N.E.2d at 878.
Rather, the beneficiary, "in her capacity as trustee, *** was under an
obligation to take the position and make the contentions she did in
the earlier suit." Oglesby, 25 Ill. 2d at 288, 184 N.E.2d at 878.
As in Oglesby, we cannot permit the conduct at issue here to
result in forfeiture. Mozer filed the petition to contest the will
pursuant to his duties as Alvin's guardian while under the direct
supervision of the circuit court. However, there is nothing in the
record to suggest that Mozer informed the court that Helen's will
contained an in terrorem clause. Nor does the record show that the
court did more than merely suggest that the petition be filed for the
limited purpose of staying the statute of limitations until the court
approved the settlement agreement. Where, as here, the court was
unaware that the course of conduct it suggested could put Alvin at
risk of forfeiture, it cannot reasonably be said to have authorized
conduct from which forfeiture could flow. Equitable considerations
preclude us from disinheriting Alvin where his court-appointed
guardian failed to communicate to the court the contents of Helen's
will thereby alerting the court of the potential consequences to Alvin
of filing the petition. See Zimmerman v. Village of Skokie, 174 Ill.
App. 3d 1001, 1008, 529 N.E.2d 599, 603 (1988).
Consequently, rather than authorizing conduct that could be
deemed to trigger forfeiture, we conclude that the court merely
suggested a mechanism by which Mozer could protect Alvin's statutory
right to contest Helen's will. The court suggested that Mozer could
file a pro forma will contest for the limited procedural purpose of
staying the statute of limitations until such time as the settlement
agreement received court approval. The limited purpose the will
contest petition was intended to serve is evidenced by the court order
approving the settlement agreement resolving the question of ownership
of the joint tenancy accounts and relinquishing Alvin's right to
contest the will. That order required dismissal of the petition with
prejudice upon execution of the agreement.
In addition, the character of Mozer's conduct, the filing of a
petition to contest, was de minimis and substantively ineffectual once
Alvin's agreement to surrender his right to contest the will was
approved by the court. Accordingly, the order approving the
settlement and release agreement and requiring dismissal of the
petition with prejudice rendered the petition to contest a nullity.
This stillborn petition to contest the will filed at the court's
suggestion by Alvin's guardian cannot be allowed to work a forfeiture
upon Alvin. To hold otherwise would elevate form over substance to
work a forfeiture against one with whose care the court is charged
based upon conduct authorized by statute and suggested by the court.
Because we conclude that, under the particular facts of this
case, it would be against public policy to enforce the language to
work a forfeiture against Alvin, we need not consider the other issues
raised by this appeal. In so concluding, we emphasize that Helen's
dispositional scheme is preserved, not contravened by our refusal to
work a forfeiture in this instance.
Affirmed.
HOFFMAN, P.J., and HOURIHANE, J., concur.