In re Estate of John Schumann

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Appellate Court Date: 2017.01.20

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In re Estate of Schumann, 2016 IL App (4th) 150844

Appellate Court In re ESTATE OF JOHN O. SCHUMANN, Deceased (Hanna

Caption Struever and Nathan Struever, Petitioners-Appellants, v. Mary Ann

Herren, a/k/a Mary Ann Yoswig, as Executrix of the Estate of John O.

Schumann, Respondent-Appellee).

District & No. Fourth District

Docket No. 4-15-0844

Filed November 3, 2016

Decision Under Appeal from the Circuit Court of Calhoun County, No. 14-P-8; the

Review Hon. Frank McCartney, Judge, presiding.

Judgment Reversed and remanded.

Counsel on Edward J. Fanning (argued), of Hardin, for appellants.

Appeal

Michael J. McDonald and Anita G. Cooper (argued), of Cooper

McDonald & McDonald, of Jerseyville, for appellee.

Panel JUSTICE STEIGMANN delivered the judgment of the court, with

opinion.

Justices Appleton and Pope concurred in the judgment and opinion.

OPINION

¶1 John O. Schumann (Pete) died in July 2013. In March 2014, Mary Ann Herren (otherwise

known as Mary Ann Yoswig)—Pete’s caretaker and holder of his power of attorney during the

later years of his life—petitioned to probate a will Pete executed in October 2007, which

appointed Herren as executrix and devised Pete’s entire estate to be administered pursuant to a

trust agreement. Hanna and Nathan Struever—the children of Pete’s late wife,

Alice—petitioned to contest the 2007 will. The Struevers claimed that Pete lacked the capacity

to execute the 2007 will and that Herren exerted undue influence over Pete in creating it. The

Struevers further asserted that Pete executed a valid will and trust in 2002, which would benefit

the Struevers.

¶2 Herren moved to dismiss the Struevers’ will contest, arguing that under the supreme

court’s decision in In re Estate of Schlenker, 209 Ill. 2d 456, 808 N.E.2d 995 (2004), the

Struevers lacked standing. The trial court agreed and dismissed the Struevers’ petition. The

Struevers appeal, and we reverse.

¶3 I. BACKGROUND

¶4 Pete died in 2013. In March 2014, Herren filed a petition to probate Pete’s October 18,

2007, will, which was attached to Herren’s petition and which named her as executrix. The will

explicitly revoked “all prior wills” and bequeathed Pete’s entire estate to “the Trustee under

the Trust Agreement dated October 18, 2007.” (The referenced trust agreement was not

attached to Herren’s petition to probate and does not appear anywhere in the record on appeal.)

¶5 In December 2014, the Struevers filed an amended petition to contest the 2007 will. The

amended petition alleged that (1) Pete lacked the testamentary capacity to execute the 2007

will and (2) Herren exerted undue influence over Pete when executing the will. The Struevers

alleged further that in October 2002, Pete and Alice executed “mutual” wills and trusts.

Attached to the Struevers’ petition to contest were Alice’s 2002 will and trust agreement and

Pete’s 2002 trust agreement. The Struevers’ petition did not explain why Pete’s 2002 will was

not attached. The Struevers requested that the trial court set aside the 2007 will and distribute

Pete’s estate according to his 2002 will.

¶6 In January 2015, Herren filed a motion to dismiss the Struevers’ amended petition. Herren

argued that the Struevers’ petition failed to meet the pleading requirements of section 2-603 of

the Code of Civil Procedure (735 ILCS 5/2-603 (West 2014)) and the mailing requirements of

section 8-1(b) of the Probate Act of 1975 (755 ILCS 5/8-1(b) (West 2014)). In March 2015,

Herren filed a supplement to her motion to dismiss, in which she added an additional

argument: that the Struevers lacked standing to challenge the 2007 will. Citing Schlenker,

Herren claimed that the Struevers could not establish standing as legatees to the 2002 will

because the 2007 will explicitly revoked all prior wills, thus voiding the 2002 will and

precluding any claim to standing that relied on it.

¶7 In June 2015, the trial court denied Herren’s motion to dismiss. The court determined that

the Struevers had standing as legatees to the 2002 will and as creditors to the 2007 will.

¶8 On July 9, 2015, Herren filed a motion to reconsider, reiterating her argument that,

pursuant to Schlenker, any prior will of Pete’s was revoked by his 2007 will and could not be

relied upon to establish standing. In addition, Herren added an argument that the 2002 will

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should be presumed to be revoked because it “has never been produced and its current

existence is speculative.”

¶9 In August 2015, the trial court conducted a hearing on Herren’s motion to reconsider and,

in September 2015, entered an order granting the motion. The court determined that under the

supreme court’s holding in Schlenker, Pete’s 2002 will must be considered revoked and void

and could not be used to establish standing. The court also accepted Herren’s argument that the

2002 will must be presumed to be revoked because the Struevers produced no evidence

establishing its existence or validity. Therefore, the court concluded that the Struevers lacked

standing to challenge Pete’s 2007 will as legatees. In addition, the court determined that the

Struevers were not creditors of Pete’s estate. The court therefore concluded that the Struevers

did not have standing as “interested person[s]” under the Probate Act and granted Herren’s

motion to dismiss the Struevers’ amended petition.

¶ 10 This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 The Struevers argue that the trial court erred by dismissing their petition to contest Pete’s

2007 will for lack of standing. Specifically, the Struevers argue that they had standing to

challenge Pete’s 2007 will because they were legatees to Pete’s 2002 will. Herren responds by

arguing that under Schlenker, the Struevers cannot rely on their status under the 2002 will to

establish standing because the 2007 will revoked all prior wills, thereby making the 2002 will

void. Herren argues further that even if Schlenker does not preclude the Struevers’ standing,

the Struevers did not establish standing because they failed to attach the 2002 will to their

petition to contest the 2007 will.

¶ 13 A. Standing in General and the Standard of Review

¶ 14 In Illinois, lack of standing is an affirmative defense that must be pleaded and proved by

the defendant. The appropriate vehicle for alleging lack of standing is a motion to dismiss

pursuant to section 2-619(a)(9) of the Code of Civil Procedure, which permits involuntary

dismissal when “the claim asserted *** is barred by other affirmative matter avoiding the legal

effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2014). Lack of standing

qualifies as an “affirmative matter” within the meaning of section 2-619(a)(9). Schlenker, 209

Ill. 2d at 461, 808 N.E.2d at 998. In this case, although Herren did not label her motion as a

motion to dismiss under section 2-619(a)(9) (the motion was titled “motion to dismiss” and did

not cite any section of the Code), we will consider it as such. Cf. Sandholm v. Kuecker, 2012 IL

111443, ¶ 54, 962 N.E.2d 418 (considering a motion to dismiss asserting immunity as a section

2-619 motion, despite its label as a section 2-615 motion).

¶ 15 “The doctrine of standing ensures that issues are raised only by parties having a real

interest in the outcome of the controversy.” Powell v. Dean Foods Co., 2012 IL 111714, ¶ 35,

965 N.E.2d 404. “A party must assert its own legal rights and interests, rather than assert a

claim for relief based upon the rights of third parties.” Id. ¶ 36. “The gravamen of standing is a

real interest in the outcome of the controversy ***.” Stevens v. McGuireWoods LLP, 2015 IL

118652, ¶ 23, 43 N.E.3d 923.

¶ 16 The respondent bears the burden to plead and prove lack of standing. Schlenker, 209 Ill. 2d

at 461, 808 N.E.2d at 998. Accordingly, a plaintiff need not allege facts establishing standing.

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Id. When standing is challenged in a section 2-619(a)(9) motion to dismiss, a court must accept

as true all well-pleaded facts in the plaintiff’s complaint and all inferences that can reasonably

be drawn in the plaintiff’s favor. Id. The court should grant the motion to dismiss only if the

plaintiff could prove no set of facts that would support a cause of action. Id.

¶ 17 An order granting a motion to dismiss for lack of standing presents a question of law that

we review de novo. Id.

¶ 18 B. Standing Under the Probate Act

¶ 19 Although standing is generally a “common law concept” (In re N.C., 2014 IL 116532, ¶ 42,

12 N.E.3d 23), standing under the Probate Act of 1975 is entirely a creature of statute.

Schlenker, 209 Ill. 2d at 461, 808 N.E.2d at 998. Pursuant to section 8-1(a) of the Probate Act,

“any interested person” may file a petition to contest the validity of a will. 755 ILCS 5/8-1(a)

(West 2014). The Probate Act defines an “interested person” as the following:

“one who has or represents a financial interest, property right or fiduciary status at the

time of reference which may be affected by the action, power or proceeding involved,

including without limitation an heir, legatee, creditor, person entitled to a spouse’s or

child’s award and the representative.” (Emphases added.) 755 ILCS 5/1-2.11 (West

2014).

¶ 20 C. Case Law Prior to Schlenker Concerning Standing of Legatees

¶ 21 Until recently, Illinois courts were in agreement that a legatee under a previously executed

will could file a petition to contest a subsequent will so long as the legatee had “ ‘a direct,

pecuniary, existing interest which would have been detrimentally affected by the probate’ of a

subsequent will.” In re Estate of Malcolm, 234 Ill. App. 3d 962, 964-65, 602 N.E.2d 41, 43

(1992) (quoting Kelley v. First State Bank, 81 Ill. App. 3d 402, 413, 401 N.E.2d 247, 255

(1980)); see also In re Estate of Keener, 167 Ill. App. 3d 270, 521 N.E.2d 232 (1988); In re

Estate of Watson, 127 Ill. App. 3d 186, 468 N.E.2d 836 (1984); In re Estate of King, 91 Ill.

App. 2d 342, 348, 235 N.E.2d 276, 279 (1968) (“petitioners, as devisees and legatees of a prior

will of the decedent, were ‘interested persons’ within the meaning” of the Probate Act); Wilson

v. Bell, 315 Ill. App. 418, 43 N.E.2d 162 (1942).

¶ 22 Although Keener, 167 Ill. App. 3d 270, 521 N.E.2d 232, agreed with the general rule about

a legatee’s standing described above, it distinguished that rule, based on the specific facts of

that case. In Keener, the decedent executed several wills and codicils. Id. at 271, 521 N.E.2d at

233. After the decedent’s death, the petitioner challenged the decedent’s final will, which was

being probated. Id. The Keener court concluded that the petitioner lacked standing to bring the

challenge because the petitioner did not have a pecuniary interest in the prior will that

immediately preceded the will being probated. Id. at 274, 521 N.E.2d at 235.

¶ 23 D. Schlenker’s Interpretation of Standing Under the Probate Act

¶ 24 In Schlenker, 209 Ill. 2d 456, 808 N.E.2d 995, the decedent, Levi Schlenker, executed four

separate wills before he died. He was survived by his two children, Troy and Imogene. Levi’s

fourth and final will—which granted Imogene nothing—was petitioned to probate, after which

Imogene filed a petition contesting its validity. In response, the executor of the will, Troy, filed

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a motion to dismiss the will contest under section 2-619(a)(9) of the Code, arguing that

Imogene lacked standing to challenge the will.

¶ 25 Specifically, Troy argued that even if Imogene successfully challenged the final will, the

earlier wills likewise granted her nothing. As a result, Imogene would need to successfully

challenge all four wills before she could hope to receive any share of the estate, at which point

she would take as Levi’s heir under the intestacy statutes. Troy contended that, similar to the

situation in Keener, because Imogene’s petition challenged only the final will, the will contest

provided her no possibility of obtaining an interest in Levi’s estate. That is, even if Imogene’s

petition to contest the final will were successful, three prior wills still stood between her and

the intestacy statutes. Therefore, Troy argued, Imogene lacked standing because she did not

have a real interest in the outcome of the proceedings. The trial court agreed and granted

Troy’s motion to dismiss, but the appellate court reversed.

¶ 26 The supreme court agreed with the appellate court, providing three reasons why the prior

wills did not affect Imogene’s standing to contest the final will. The “more fundamental

reason” was that Imogene had an unconditional right to challenge the will as Levi’s heir. Id. at

464, 808 N.E.2d at 1000. The court noted that section 1-2.11 of the Probate Act defined an

“interested person,” as anyone whose financial interest may be affected by the will contest,

“including without limitation an heir.” (Emphasis and internal quotation marks omitted.) Id. at

466, 808 N.E.2d at 1001; 755 ILCS 5/1-2.11 (West 2002). The court interpreted that language

to mean that “one’s status as an heir is sufficient, in itself, to confer standing to contest a will’s

validity.” (Internal quotation marks omitted.) Schlenker, 209 Ill. 2d at 466. That is, an heir need

not establish in every case a tangible interest in challenging a will. Instead, the Probate Act

creates a bright-line rule of law that a decedent’s heir always has standing to challenge any will

executed by the decedent. Therefore, because Imogene had an unconditional right to challenge

Levi’s will as his heir, any prior wills executed by Levi were irrelevant to the question of

standing. Id. at 465, 808 N.E.2d at 1000.

¶ 27 Although the court’s holding described above was sufficient to decide the case, the court

included two additional reasons why Levi’s prior wills did not affect Imogene’s standing. The

court’s second reason for discounting Levi’s three prior wills was that “our presumption must

be that none of [the prior] wills have any legal effect.” Id. at 463, 808 N.E.2d at 999. The court

explained that Levi’s final will contained a clause revoking all prior wills and that Levi had

made no later effort to revive those wills. Thus, the court concluded that “[a]t this stage of the

proceedings, we must therefore regard all of the prior wills as void.” Id. Presuming that the

prior wills were void, the court concluded that those wills could not affect Imogene’s standing.

¶ 28 The Schlenker court then provided a third reason why the prior wills did not affect

Imogene’s standing: Troy’s argument “assumes that Imogene would be no better off under any

of the earlier wills” than she is under the final will. Id. The court explained that Levi’s second

will had never been produced and that his first will established a trust to provide for Imogene.

As a result, Troy had not established his claim that Imogene would not take under any of the

three prior wills and would need to successfully contest all four wills before she would receive

an interest in Levi’s estate. The court explained that Troy was “attempt[ing] to sidestep these

deficiencies by shifting the burden of pleading and proof to Imogene.” Id. at 464, 808 N.E.2d

at 1000. The court reiterated that Troy, as the respondent, had the burden to plead and prove

Imogene’s lack of standing. The court concluded that Troy had failed to meet that burden and,

therefore, his motion to dismiss should have been denied.

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¶ 29 Justice Garman specially concurred, disagreeing with the majority’s holding that the

Probate Act grants an heir unconditional standing to challenge a will. Id. at 467-68, 808 N.E.2d

at 1001-02 (Garman, C.J., specially concurring). Under Justice Garman’s interpretation, an

“interested person” under the Probate Act must have an “affected interest” in the particular

proceedings. Id. at 467, 808 N.E.2d at 1001. According to Justice Garman, an heir who stood

to receive the same share of an estate under the decedent’s will as she would under the

intestacy statutes would lack standing to challenge the will. Justice Garman explained that a

contrary rule would allow for mischief: an heir without a legally cognizable interest in the

proceedings could file a will contest to affect other parties’ interests, possibly for personal,

nonlegal reasons. Id. at 468, 808 N.E.2d at 1002.

¶ 30 Justice Garman also took issue with the majority’s assertion that, because Levi’s final will

revoked all prior wills, the prior wills were void and could not be used to assess Imogene’s

standing. Justice Garman cited Crooker v. McArdle, 332 Ill. 27, 163 N.E. 384 (1928), for the

proposition that a will is not effective for any purpose—including revoking other wills—until

the will is admitted to probate. An order admitting a will to probate is not final until the time for

filing a will contest has run. Therefore, the revocation clause in Levi’s final will was not yet in

effect when Imogene filed her will contest. As a result, the prior wills had not yet become void

and should be considered when determining whether Imogene had an interest in challenging

the final will. Justice Garman continued by noting that a contrary rule would contradict

long-standing Illinois law and promote fraud. Schlenker, 209 Ill. 2d at 468-70, 808 N.E.2d at

1002-03 (Garman, C.J., specially concurring).

¶ 31 E. Standing in This Case

¶ 32 The Struevers argue that the trial court erred by granting Herren’s motion to dismiss the

Struevers’ petition to contest Pete’s 2007 will. Specifically, the Struevers argue that they had

standing as legatees to Pete’s 2002 will. In response, Herren argues that Schlenker precludes

standing for the Struevers as legatees to the 2002 will because the 2007 will revoked all prior

wills.

¶ 33 1. Schlenker Does Not Proscribe Standing in This Case

¶ 34 Herren argues that Schlenker stands for the proposition that a legatee under a prior will

does not have standing to challenge a current will where the current will contains a clause

revoking the prior will. We disagree with Herren’s reading of Schlenker.

¶ 35 The “fundamental” holding of Schlenker was that under the Probate Act, an heir

unconditionally has standing to contest a will. Id. at 464, 808 N.E.2d at 1000. In further support

of that holding, the court went on to provide additional discussion unnecessary to its decision.

People v. Flatt, 82 Ill. 2d 250, 261, 412 N.E.2d 509, 515 (1980) (the precedential scope of a

decision is limited to the facts before the court). That additional discussion included the

following proposition: “At this stage of the proceedings, we must therefore regard all of the

prior wills as void.” Schlenker, 209 Ill. 2d at 463, 808 N.E.2d at 999. For the following reasons,

we conclude that the aforementioned statement from Schlenker does not affect the Struevers’

standing as legatees in this case.

¶ 36 The Schlenker court’s presumption that the prior wills were void was based on the

applicable burden of proof, instead of a broader statement about the power of a probated will to

revoke prior wills. As the court explained, “At this stage of the proceedings, we must therefore

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regard all of the prior wills as void.” (Emphasis added.) Id. The court reached that conclusion

because, “[a]t this stage of the proceedings, there is no evidence to support [the prior wills’]

validity.” Id. at 462, 808 N.E.2d at 999. Without any evidence of the prior wills’ validity, the

court concluded that its “presumption must be that none of those wills have any legal effect”

because the final will included a clause revoking the prior wills. Id. at 463, 808 N.E.2d at 999.

The critical aspect of the court’s reasoning was that it was making a presumption against the

respondent, Troy, and in favor of the plaintiff, Imogene. The burden of proof applicable when

deciding a section 2-619 motion to dismiss required the court to “accept as true all

well-pleaded facts in plaintiff’s complaint and all inferences that can reasonably be drawn in

plaintiff’s favor.” Id. at 461, 808 N.E.2d at 998. In Schlenker, one inference that could be

drawn in Imogene’s favor was that all the prior wills were void and therefore could not affect

her standing. We read Schlenker less as establishing a new rule that all prior revoked wills

must be considered void than as reaffirming the well-established rule that all inferences must

be drawn in the plaintiff’s favor when considering a section 2-619 motion to dismiss.

¶ 37 Our reading of Schlenker is buoyed by that court’s reasoning immediately following its

decision to consider the prior wills as void. The court went on to consider the possibility that

those prior wills might instead be valid, in direct contradiction of its previous statement that it

was presuming that the prior wills were void. The court considered that the prior wills might

grant Imogene an interest in Levi’s estate greater than she would take under the final will,

which would create a direct financial interest in Imogene’s challenging the final will. The court

explained that Troy had not met his burden to prove that the prior wills did not grant Imogene

such a direct interest. The court concluded that Troy was attempting “to sidestep these

deficiencies by shifting the burden of pleading and proof to Imogene.” Id. at 464, 808 N.E.2d

at 1000. The court reiterated that it was Troy’s burden to plead and prove lack of standing.

¶ 38 The common thread tying together the Schlenker court’s reasoning is that Troy, as the

respondent, had the burden to plead and prove lack of standing. Accordingly, all inferences

were required to be drawn in Imogene’s favor. Schlenker involved a factual scenario in which

contrary inferences could be drawn in Imogene’s favor—first, that the prior wills were void

and, second, that the prior wills gave Imogene a greater interest than the final will. The court

therefore considered both those presumptive possibilities in reaching its decision. Because the

Schlenker court’s reasoning was based on the inferences that could be drawn in the plaintiff’s

favor, we decline to extrapolate any broader legal holding about the efficacy of revocation

clauses from its analysis.

¶ 39 We also find compelling the long-standing case law prior to Schlenker providing that a

legatee under a prior will has standing to contest a subsequent will. See Malcom, 234 Ill. App.

3d 962, 602 N.E.2d 41; Watson, 127 Ill. App. 3d at 189, 468 N.E.2d at 837 (“It has been held

that legatees of a prior will of a decedent, even though not heirs at law, are ‘interested’ persons

within the meaning of the [Probate] Act.”); Kelley, 81 Ill. App. 3d 402, 401 N.E.2d 247; King,

91 Ill. App. 2d 342, 235 N.E.2d 276. We find it hard to fathom that the majority in Schlenker

set out to create a rule that would make such a drastic change to established precedent without

acknowledging as much.

¶ 40 We also find it difficult to conclude that the supreme court intended, as a matter of law, to

prohibit a legatee under a prior will from challenging a subsequently executed will containing

a revocation clause. Prior legatees have the kind of “real interest in the outcome” of the

controversy that is generally sufficient to establish standing. Powell, 2012 IL 111714, ¶ 35,

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965 N.E.2d 404 (describing the general requirements for standing). Legatees are asserting their

“own legal rights and interests” rather than the rights of a third party. Id. ¶ 36. A rule holding

that legatees cannot challenge a will containing a revocation clause would prevent potentially

interested parties from challenging suspect wills.

¶ 41 Further, unlike the factual scenarios in Schlenker and Keener, in this case, no intervening

wills stood between the challenged 2007 will and the 2002 will, under which the Struevers

claimed to be beneficiaries. That is, if the Struevers successfully challenged the 2007 will, no

other obstacle prevented them from immediately seeking to probate the 2002 will. The

Struevers therefore have the “direct, pecuniary, existing interest” in their will contest that the

petitioner lacked in Keener, 167 Ill. App. 3d at 271, 521 N.E.2d at 234.

¶ 42 In addition, we agree with the point made in Justice Garman’s special concurrence that a

will’s clause revoking all prior wills does not become effective until the will is successfully

probated. In Crooker, 332 Ill. at 29-30, 163 N.E. at 385, the supreme court held that “no will is

legally effective until it has been admitted to probate. No will can be shown to revoke a

previous will until the subsequent will has been admitted to probate.” As we noted earlier,

Schlenker did not explicitly overrule that holding.

¶ 43 The rule stated in Crooker that no part of a will becomes effective until the will is probated

makes perfect sense. Certainly, a will’s revocation clause could not and should not be effective

if the will was the product of undue influence. And we do not know whether the will was the

product of undue influence until the will is successfully admitted to probate. Again, we

construe the Schlenker court’s presumption that the prior wills were voided by the revocation

clause as a necessary presumption because of the burden of proof and not a holding that prior

wills cannot be used to establish standing to challenge a subsequent will containing a

revocation clause.

¶ 44 Because the Struevers do not raise the argument, we have no need to determine whether

section 1-2.11 of the Probate Act (755 ILCS 5/1-2.11 (West 2014)) provides standing to

legatees as a matter of law, regardless of whether a legatee has an actual pecuniary interest in

the outcome of the will contest.

¶ 45 2. Herren Did Not Meet Her Burden to Establish Lack of Standing

¶ 46 Applying the foregoing principles to this case, we conclude that Herren failed to meet her

burden to establish the Struevers’ lack of standing. As explained above, according to facts

pleaded in the Struevers’ petition to contest the 2007 will, they were legatees with standing to

challenge Pete’s 2002 will. Herren claims that we must presume that the 2002 will is revoked

because the Struevers have failed to attach it to their petition to contest. However, Herren’s

argument is contrary to the appropriate burden of proof. At this stage of the proceedings, the

Struevers did not have the burden to plead and prove standing. Instead, Herren had the burden

to plead and prove the Struevers’ lack of standing. Herren did not meet that burden. As a result,

her motion to dismiss the Struevers’ petition to contest the 2002 will should have been denied.

¶ 47 Because we find that Herren’s motion to dismiss should have been denied based on the

Struevers’ standing as legatees, we need not address the Struevers’ standing as creditors.

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¶ 48 III. CONCLUSION

¶ 49 For the foregoing reasons, we reverse the trial court’s judgment and remand for further

proceedings.

¶ 50 Reversed and remanded.

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