Page 21 - John Hundley 2009

Sharp Thinking

No. 26 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. November 2009
Will-Contest Bar Doesn’t Affect Inheritance Interference Suit

Suits claiming a defendant has wrongfully interfered with an inheritance which the plaintiff otherwise
would have received are not bound by Illinois’ six-month deadline for filing contests to wills
in probate, the Illinois Supreme Court held last month.
Distinguishing objections seeking to have a new will held invalid from tort suits
claiming that a third party tortiously caused the will-maker to disinherit the plaintiff, the
high court on October 29 ruled that only the former are covered by the six-month bar (755
ILCS 5/8-1). In re Estate of Ellis, __ Ill.2d __, 2009 WL 3471069.

Moreover, the court held that a suit for tortious interference with an expectancy of an inherit-
ance can be brought even if one had no conscious expectation of the inheritance because he was
unaware of the former will.
In Ellis, Shriners Hospitals alleged it was the principal beneficiary under a will which a woman had had
for 35 years. However, when she was in her 80s she made a new will with the principal beneficiary being
her pastor. She also made the pastor her agent on property and health
care powers of attorney, and she retitled more than $1 million in assets
to him. When Shriners learned of its interest under the former will (long
after the six-month bar for contesting the new will had passed), it filed
suit, claiming that the new will was invalid due to undue influence and
lack of mental capacity and that the pastor had tortiously interfered with
its expectancy under the former will. The lower court threw out the
counts seeking to hold the new will invalid, and the high court made clear
it thought that result correct. However, the lower court also had tossed
the tortious interference claim against the pastor personally, and on that point it erred, the high court said.
The Supreme Court distinguished a prior case in which the disinherited party had known of its
prospective interest before the will-contest bar passed and had settled certain claims in documents which
appeared to call for no further court action. In that case, the high court noted, full relief could have been
obtained by timely filing of a will contest, while in Ellis it could not because of plaintiff’s being injured by
the gifts which occurred prior to death. How many of those grounds of distinction – knowledge of the
claim when it could have been asserted in a will contest, sufficiency of the will contest remedy,
and prior settlement implying no further litigation – were critical is unclear.
The court also outlined the elements required for a claim under the tort theory.
According to the opinion, “a plaintiff filing a tort claim must establish the following distinct
elements: (1) the existence of an expectancy; (2) defendant’s intentional interference with
the expectancy; (3) conduct that is tortious in itself, such as fraud, duress, or undue
influence; (4) a reasonable certainty that the expectancy would have been realized but for
the interference; and (5) damages.”
Ellis underscores that a given will does not necessarily become irrelevant just because the client has
made a new one. Law firms may want to consider their will retention policies in light of this decision.
-- John Hundley, Jhundley@lotsharp.com, 618-242-0246

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