Petition for Writ of Certiorari — Ellizzette McDonald, Petitioner v. Shawn McDonald

No. 22In the

Supreme Court of the United States

ELLIZZETTE MCDONALD,

Petitioner,

v.

SHAWN MCDONALD , ADMINISTRATOR OF THE

ESTATE OF JOHN W. MCDONALD, III,

Respondent.

On Petition for a Writ of Certiorari to

the Supreme Court of Illinois

PETITION FOR A WRIT OF CERTIORARI

Robert G. Black

Counsel of Record

Law Offices of

Robert G. Black, P.C.

101 North Washington Street

Naperville, Illinois 60540

(630) 527-1440

rblack@rgb-law.com

Counsel for Petitioner

Steven J. Roeder

Ryan P. Weitendorf

Roeder Law Offices LLC

77 West Washington Street,

Suite 2100

Chicago, Illinois 60602

(312) 667-6000

317703

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

Dr. John W. McDonald, III, M.D., Ph.D., was a worldrenowned physician and scientist. When he married

Ellizzette McDonald, John possessed all necessary

competence to marry under prevailing Illinois law. Two

months before they married, John’s brother Shawn

obtained an order of guardianship in absentia over

John which did not address his competency to marry or

specifically withdraw his constitutional right to marry.

In proceedings after John’s death, the Illinois Supreme

Court held that John’s marriage to Ellizzette was void because

any order of guardianship eliminated his right to marry. Illinois

thus joined at least three states that eliminate an adult ward’s

fundamental right to marry without an order specifically

addressing whether the right should be removed. At least twelve

states hold an order of guardianship itself does not.

The court below further held that a ward’s incompetency

is “not because the ward lacked the mental competence to

understand the nature, effect, duties, and obligations of

marriage;” instead, it was because of “the ward’s failure

to comply with the provisions for obtaining consent” under

a statute – even though no ward has the statutory ability

to satisfy these conditions. Every Illinois ward’s right

to marry thus is now a constitutional Catch-22. As the

partial dissent noted, this decision renders void not only

John’s and Ellizzette’s marriage, but an untold number

of marriages entered into by couples in Illinois who had

no reason to believe their marriages were void.

The question presented is:

Whether a state statute impermissibly interferes with

the fundamental rights of wards to marry under the Equal

ii

Protection and Due Process Clauses of the Fourteenth

Amendment.

iii

PARTIES TO THE PROCEEDINGS

Petitioner Ellizzette McDonald is a natural person.

Respondent Shawn McDonald, administrator of the

Estate of John W. McDonald, III, is a natural person.

iv

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings in the

Illinois Supreme Court, the Appellate Court of Illinois,

Second District, and the Circuit Court of the Sixteenth

Judicial Circuit, Kane County, Illinois:

• In re Est. of McDonald, 2017-P-744, Circuit Court

of the Sixteenth Judicial Circuit, Kane County,

Illinois. Judgment entered November 18, 2019.

• In re Est. of McDonald, No. 2-19-1113, Appellate

Court of Illinois, Second District. Judgment

entered December 22, 2020, opinion published

February 1, 2021.

• In re Est. of McDonald, Docket 126956, Illinois

Supreme Court. Judgment entered April 21, 2022,

rehearing denied September 26, 2022.

v

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . iii

STATEMENT OF RELATED PROCEEDINGS . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTIT U TIONA L PROV ISIONS A ND

STATUTES INVOLVED . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

A. Facts material to consideration of the

questions presented . . . . . . . . . . . . . . . . . . . . . . . . 3

B. The Illinois Appellate Court’s decision . . . . . . . . 5

C. The Illinois Supreme Court’s decision . . . . . . . . . 6

1.

The Majority Opinion. . . . . . . . . . . . . . . . . . . 6

vi

Table of Contents

Page

2.

The Partial Dissent . . . . . . . . . . . . . . . . . . . . 9

D. Ellizzette’s Petition for Rehearing . . . . . . . . . . . 12

REASONS FOR GRANTING THE PETITION . . . . 12

I.

The states have split on whether a ward’s

fundamental right to marry can be eliminated

without a specific order removing the

right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

II. Whether the Illinois statute is the least

restrictive way to protect wards and

protect their ability to marry merits

review by this Court . . . . . . . . . . . . . . . . . . . . . . 20

III. The high evidentiary burden imposed on

the right to marry merits review by this

Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

IV. Whether obvious, easy alternatives exist

that protect the state’s interest and do not

unnecessarily interfere with a ward’s right

to marry merits review by this Court . . . . . . . . 23

V.

Whether rendering void the marriages of

John, Ellizzette and all similarly situated

couples without due process should be

reviewed by this Court . . . . . . . . . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

vii

TABLE OF CITED AUTHORITIES

Page

CASES

Dobbs v. Jackson Women’s Health Organization,

___ U.S. ___, 142 S. Ct. 2228 (2022) . . . . . . . . . . . . . 26

Grayned v. City of Rockford,

408 U.S. 104 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Greathouse v. Vosburgh,

19 Ill.2d 555 (Ill. 1960) . . . . . . . . . . . . . . . . . . . . . . . . . 9

In re Guardianship of O’Brien,

847 N.W.2d 710 (Minn. App. 2014) . . . . . . . . . . . . . . . 17

In re the Guardianship of Mikulenec,

356 N.W.2d 683 (Minn. 1984) . . . . . . . . . . . . . . . . . . . 16

Karbin v. Karbin,

2012 IL 112815 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Logan v. Zimmerman Brush Co.,

455 U.S. 422 (1982) . . . . . . . . . . . . . . . . . . . . . 24, 25, 26

Loving v. Virginia,

388 U.S. 1 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 26

M.L.B. v. S.L.J.,

519 U.S. 102 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Matter of Guardianship of Kindell,

2022 Ohio-3456 (Ohio App. 2022) . . . . . . . . . . . . . . . 17

viii

Cited Authorities

Page

Pape v. Byrd,

145 Ill.2d 13 (Ill. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . 17

Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 535 (1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Turner v. Safley,

482 U.S. 78 (1987) . . . . . . . . . . . . . . 6, 12, 13, 14, 22, 23

Washington v. Glucksberg,

521 U.S. 702 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Zablocki v. Redhail,

434 U.S. 374 (1978) . . . . . . . . . . . . . 6, 12, 13, 14, 21, 23

STATUTES AND OTHER AUTHORITIES

U.S. Const., amend. XIV . . . . . . . . . . . . . . . . . . . . . . . 2, 13

28 U.S.C. §1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

20 Pa. C.S.A. § 5521(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . .18

755 ILCS 5/11a-17(a-5) . . . . . . . . . . . . . . . . . . . . . . . . 20, 22

755 ILCS 5/11a-17(a-10) . . . . . . 2, 5, 6, 9, 10, 11, 16, 20, 21,

22, 25, 27

755 ILCS 5/11a-3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

ix

Cited Authorities

Page

755 ILCS 5/17.1(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Ala. Code § 26-2A-108(a) . . . . . . . . . . . . . . . . . . . . . . . . . 19

Ala. Code § 26-2A-78(c)(5) . . . . . . . . . . . . . . . . . . . . . . . . 19

Ariz. Rev. Stat. § 14-5209(C)(5) . . . . . . . . . . . . . . . . . . . 19

Cal. Prob. Code § 1900 . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Cal. Prob. Code § 1901(a) . . . . . . . . . . . . . . . . . . . . . . . . . 18

Fla Stat. § 744.3215(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . 19

Ga. Code § 29-4-21(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Haw. Rev. Stat. § 560:5-315(a)(5) . . . . . . . . . . . . . . . . . . 19

Hu r ch a nd A pplebau m , Def inin g an d

Assessing Capacity to Vote: The Effect of

Mental Impairment on the Rights of Voters,

38 McGeorge L. Rev. 931 (2007) . . . . . . . . . . . . . . . . 17

Ind. Code § 29-3-8-2(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . 24

Ind. Code § 29-3-8-2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Ind. Code § 29-3-8-8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Iowa Code § 633.635(4) . . . . . . . . . . . . . . . . . . . . . . . 18, 24

x

Cited Authorities

Page

Mass. Gen. Laws ch. 190B, § 5-209(c)(4) . . . . . . . . . . . . 19

Me. Rev. Stat. tit. 18-C, § 5-310(2)(B) . . . . . . . . . . . . . . 18

N.D. Cent. Code § 30.1-28-05(3) . . . . . . . . . . . . . . . . . . . 18

N.J. Stat. § 3B:12-24.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . 19

N.Y. Mental Hyg. Law § 81.29(a) . . . . . . . . . . . . . . . . . . 18

N.Y. Mental Hyg. Law § 81.29(b) . . . . . . . . . . . . . . . . . . 18

Pan, Oa, Liu, Xu, McDonald & Belagu, “Spinal

cord organogenesis model reveals role of

Flk1+ cells in self-organization of neural

progenitor cells into complex spinal cord

tissue,” Stem Cell Research, December 2018,

epublished September 6, 2018 . . . . . . . . . . . . . . . . . . . 4

Quasius, The Next Step in Marriage Equality:

Indiana Restr ictions on Mar r iage for

Individuals under Adult Guardianship, 31

Geo. Mason U. Civ. Rts. L.J. 135 (2021) . . . . . . . . . . 24

Rotunda, Nowak, Amar, Amar & Calabresi, Treatise

on Constitutional Law (5th Ed.) §18.28(a) . . . . . . . . 15

S.C. Code § 62-5-304A(A)(1) . . . . . . . . . . . . . . . . . . . . . . 19

Uniform Guardianship, Conservatorship, and

other Protective Arrangements Act, § 310(a)(4) . . . 15

xi

Cited Authorities

Page

Uniform Guardianship, Conservatorship, and

other Protective Arrangements Act, § 310(b) . . . . . 15

Utah Code § 75-5-301.5(2)(k) . . . . . . . . . . . . . . . . . . . . . 19

Wash. Rev. Code § 11.130.310(1)(d) . . . . . . . . . . . . . . . . . 19

Wis. Stat.§ 54.25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24

Wis. Stat.§ 54.44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24

Wyo. Stat. § 3-2-201(b)(vi) . . . . . . . . . . . . . . . . . . . . . . . . 19

1

PETITION FOR A WRIT OF CERTIORARI

This petition seeks the resolution of a critical issue

concerning the fundamental rights of adult wards and

those who marry them. Specifically, it asks this Court to

determine whether a state may remove the fundamental

right of a ward to marry solely through the entry of an

order of guardianship that does not specifically remove

that right.

It also asks this Court to determine whether a state

can condition a ward’s ability to marry on the ward’s

compliance with the terms of a statute with which the

ward cannot comply and which impermissibly interfere

with the right to marry.

Finally, it requests that this Court determine whether

the statute violated due process rights when, as applied,

it rendered void the marriages of couples who married

without orders directing their guardians to consent to

their marriages, even though the text of the statute gave

no reason to know that such compliance was required.

OPINIONS BELOW

The Illinois Supreme Court’s decision (Pet.App.1a54a) is reported at 2022 IL 126956. The Illinois Appellate

Court’s decision (Pet.App.55a-114a) is reported at 2021 IL

App (2d) 191113. The trial court’s ruling (Pet.App.115a118a) is unreported.

2

JURISDICTION

On April 21, 2022, the Illinois Supreme Court

reversed the appellate court and entered judgment. (Pet.

App.1a-54a) A timely petition for rehearing was denied

on September 26, 2022. (Pet.App.119a) This Court has

jurisdiction under 28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

This case implicates the Due Process and Equal

Protection Clauses of the Fourteenth Amendment to the

U.S. Constitution which provide in pertinent part:

[N]or shall any State deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction

the equal protection of the laws.

It also involves 755 ILCS 5/11a-17(a-10), which provides

in pertinent part:

Upon petition by the guardian of the ward’s

person or estate, the court may authorize and

direct a guardian of the ward’s person or estate

to consent, on behalf of the ward, to the ward’s

marriage pursuant to Part II of the Illinois

Marriage and Dissolution of Marriage Act if

the court finds by clear and convincing evidence

that the marriage is in the ward’s best interests.

3

STATEMENT OF THE CASE

A. Facts material to consideration of the questions

presented.

John W. McDonald III, M.D., Ph.D., was associate

professor of neurology at the Johns Hopkins University

School of Medicine and the director of the International

Center for Spinal Cord Injury at the Kennedy Krieger

Institute. Shawn McDonald is John’s brother.

On May 30, 2017, Shawn obtained an in absentia

order declaring himself John’s guardian contending that

John suffered from bi-polar disorder and alcoholism. Pet.

App.57a-58a. Although John objected to this order, no

trial on John’s objections to the guardianship was ever

held. Pet.App.58a.

On July 11, 2017, John, then 54, married Ellizzette,

then 53, whom John had known for decades. Pet.App.69a.

Raymond Bement, a licensed clinical psychologist and

a friend of both since 1982, when they attended college

together, celebrated their marriage. Pet.App.69a, 20a.

Bement participated in John and Ellizzette’s

marriage preparations. Pet.App.69a. The day before

their ceremony, Bement attended a Ketubah signing in

John’s and Ellizzette’s home. Pet.App.69a-70a. Bement

testified a Ketubah is “like what Christians would call a

marriage license” and states what each party will bring

to the relationship. Id.

Other w itnesses testified regarding John and

Ellizzette’s relationship and John’s capacity in the summer

4

of 2017. John’s colleague from Johns Hopkins, Dr. Visar

Belagu, first met Ellizzette in March 2004, when he went

to work for John in St. Louis. Pet.App.19a. Dr. Belagu had

contact with John two or three times a week in 2017 and, in

his opinion, John and Ellizzette were happily married. Pet.

App.69a. Dr. Belagu also traveled with John in the summer

of 2017 because they were working on a project together.

Pet.App.19a. They also worked on a scientific paper that

was accepted for publication in a major scientific journal

sometime at the end of 2017 or early 2018. Id.1 Also in 2017,

John was offered and accepted a position internationally

commencing in 2018. Id.

John passed on December 11, 2017. The wrongful

death complaint Shawn filed on behalf of John’s estate

alleges that when John presented himself at a hospital

emergency room that day, he reported having suicidal

thoughts for approximately three weeks. (Appellee’s

Motion to allow Supreme Court to Take Judicial Notice,

Ex. A, Count I, ¶5.) Shawn’s wrongful death complaint

contends the failure of the hospital and its professionals

to admit John, and their decision to release him without

interviewing “collaterals,” including John’s wife, resulted

in John’s death. (Id., ¶¶15, 23.) Although the wrongful

death complaint does not refer to Ellizzette by name, the

reference to John’s wife can only refer to her.

Shortly after John’s death, Shawn obtained ex parte

orders appointing himself administrator of John’s probate

1. Pan, Oa, Liu, Xu, McDonald & Belagu, “Spinal cord

organogenesis model reveals role of Flk1+ cells in self-organization

of neural progenitor cells into complex spinal cord tissue,” Stem Cell

Research, December 2018, epublished September 6, 2018.

5

estate and disinheriting Ellizzette. Pet.App.58a-59a. On

the trial to determine whether she was validly married

to John, Ellizzette proceeded pro se. Pet.App.68a.

Ellizzette called Bement and Dr. Belagu as witnesses but

was prevented personally from testifying regarding her

marriage. Pet.App.68a-71a. At the close of her case, the

trial court directed a finding against Ellizzette ruling,

among other things, that she failed to show a prior order

approving her marriage to John. Pet.App.118a. The trial

court did not reference a specific statute in its oral ruling.

Id.

B. The Illinois Appellate Court’s decision.

On appeal, the Illinois Appellate Court rejected

the various and sundry reasons the trial court gave for

directing a finding against Ellizzette. The appellate

court specifically rejected the argument on appeal that

section 11a-17(a-10) of the Illinois Probate Act, 755 ILCS

5/11a-17(a-10), required a prior order approving the

marriage before John could marry Ellizzette, holding the

section did not apply:

The plain language of this provision simply does

not require prior approval by the court before

a ward can marry of his or her accord. Instead,

it provides a procedure to allow a guardian to

petition the court for authorization to consent,

on behalf of the ward, to the ward’s marriage.

The fact that a guardian may seek an order

allowing consent from the court, however, does

not mean that the ward may not marry unless

and until the guardian first obtains the court’s

consent. We read nothing in the language of

6

section 11a-17(a-10) of the Probate Act which

expressly declares that a marriage entered

into by a ward is void in the absence of a bestinterest hearing. Pet.App.112a.

C. The Illinois Supreme Court’s decision.

1.

The Majority Opinion.

In his reply brief before the Illinois Supreme Court,

Shawn first cited Zablocki v. Redhail, 434 U.S. 374 (1978),

for the proposition that “[r]easonable regulations that do

not significantly interfere with the decisions to enter into

the marital relationship may be imposed.” (Appellant’s

Supreme Court Reply Brief, pp. 2, 8.) In his response to

Ellizzette’s request for cross-relief, however, Shawn also

suggested that, as John’s guardian, he had the right to

determine whether John could exercise his fundamental,

constitutional right to marry. (Id., p. 17.)

In response, citing Zablocki and Turner v. Safley, 482

U.S. 78, 95 (1987), Ellizzette specifically argued that

“if [the Illinois Supreme Court] were inclined to accept

the argument that section 11a-17(a-10) applies to John

and Ellizzette’s marriage, it also must address the

constitutional issues surrounding the statute’s purported

restrictions on the fundamental right to marry.”

(Appellee’s Supreme Court Cross Reply Brief, pp. 1112.)2 Ellizzette further explained in detail why section

11a-17(a-10) did not pass constitutional muster under

Zablocki and Turner. (Id., pp. 11-16.) Apparently aware

2. Ellizzette’s Supreme Court Cross Reply Brief is available

on Westlaw.

7

it had no answer to Ellizzette’s constitutional objections,

that court did not address them.

Instead, speaking for four justices, the majority

announced that “a ward who wishes to enter into a

marriage may do so only with the consent of his guardian.”

Pet.App.30a. It cited no provision in the Probate Act

which expressly prevented a ward from marrying on his

or her accord unless the guardian consented, let alone

one which explicitly granted to the guardian the sole

authority to consent to a ward’s marriage. The majority

further concluded:

if a person is adjudged a disabled person in

need of a guardian under the Probate Act,

that person is limited in his ability to enter

into a marriage, i.e., such person must obtain

the guardian’s consent, which is given upon

the court’s authorization and direction after a

determination that the marriage is in the ward’s

best interest. Pet.App.33a.

The majority additionally held the guardian alone

cannot provide this consent. Instead, “for a guardian to

obtain the ability to consent, he must file a petition with

the court.” Pet.App.30a. (Emphasis added.) Since only

the guardian can file such a petition, the guardian may

deny the ward the right to marry by refusing to file one.

If a guardian nonetheless did petition the court, the

majority held the guardian is required to prove by clear

and convincing evidence that the marriage is in the ward’s

best interest:

8

If the court finds by clear and convincing

evidence that the marriage is in the ward’s

best interest, the court may then authorize and

direct the guardian to consent to the ward’s

marriage. Pet.App.30a. (Emphasis added.)

As a result, the trial court may decline to direct the

guardian to consent if “the court believes that the

marriage would result in substantial harm to the ward’s

welfare or personal or financial interests.” Id. (Emphasis

added.)

As announced by the Illinois Supreme Court’s majority

opinion, based solely upon the entry of a guardianship

order and without any specific ruling withdrawing the

ward’s right to marry, no ward in Illinois retains any right

whatsoever to marry of his or her accord. This is the rule

no matter the type of guardianship ordered, the evidence

presented in support of the guardianship, the reasons the

guardianship was ordered, and the ward’s specific mental

competence to understand the nature, effect, duties, and

obligations of marriage. And even though it acknowledged

the Probate Act mandates that “[g]uardianship shall be

ordered only to the extent necessitated by the individual’s

actual mental, physical, and adaptive limitations,” (Pet.

App.27, (citing 755 ILCS 5/11a-3(b) (emphasis added)),

the majority made no attempt to harmonize its ruling

with this mandate.

Indeed, the Illinois Supreme Court held, also for

the first time, that whether the ward actually has the

competence to consent to the marriage is entirely

irrelevant:

9

the lack of capacity to enter into a marriage is

based on the ward’s failure to comply with the

provisions for obtaining consent, not because

the ward lacked the mental competence to

understand the nature, effect, duties, and

obligations of marriage. Pet.App.33a.

Under this formulation, the ward obtains capacity to marry

only by somehow complying with section 11a-17(a-10) of the

Probate Act. Since the ward has no independent ability to

comply with these provisions, the Illinois Supreme Court

turned every Illinois ward’s fundamental right to marry

into a constitutional Catch-22.

Under this ruling, a ward such as Dr. McDonald

who is contesting his guardianship, whose tremendous

mental ability allowed him to work on a highly specialized

scientific paper, evaluate commercial technologies, and

engage in business transactions – all of which fully

established his capacity to marry under Illinois law3 – and

whom the uncontested trial evidence showed understood

the nature, effect, duties, and obligations of marriage, had

no right or legal capacity to marry.

2.

The Partial Dissent.

Speaking for three justices, the partial dissent of

now Chief Justice Theis first commented that “much of

3. See Greathouse v. Vosburgh, 19 Ill.2d 555, 567-68 (Ill.

1960) (noting that “all of such authorities agree that a person who

has sufficient mental capacity to transact ordinary business has

mental capacity to perform all three of the aforesaid acts,” i.e.,

“entering into a marriage,” “executing a will,” and “conveying

real estate by deed.”)

10

the majority’s extensive background discussion concerns

matters that were neither presented at trial nor formed a

basis for circuit court’s order under review.” Pet.App.43a44a (Theis, J., dissenting.)

Having confirmed this discussion was unnecessary,

the partial dissent noted “[t]he plain language of section

11a-17(a-10) … does not mandate prior approval by the

court before a ward can marry of his or her own accord.”

Pet.App.48a. (Theis, J., dissenting.) Indeed, it commented

that while the majority purported to base its decision on

section 11a-17(a-10), the majority never parsed the statute’s

text:

The majority acknowledges this statutory

provision but chooses to dodge the language

itself. Instead, after quoting section 11a-17 in

its entirety, the majority simply concludes that,

‘under the Probate Act, a ward who wishes

to enter into a marriage may do so only with

the consent of his guardian’ and ‘[p]ursuant to

section 11a-17(a-10), for a guardian to obtain the

ability to consent, he must file a petition with

the court.’” Id. (Emphasis added.)

The partial dissent further stated:

The plain language of section 11a-17(a-10), as

the appellate court recognized, merely provides

a procedure to allow a guardian to petition the

court for authorization to consent, on behalf of

a ward, to the ward’s marriage following a bestinterest determination. Among other reasons, a

guardian may seek such a court order for ease

11

of meeting the requirements of the Marriage

Act on behalf of his or her ward who is marrying

or to prevent a subsequent challenge that his or

her ward lacked, for purposes of the Marriage

Act, the capacity to consent to the marriage.

The fact that the provision permits a guardian

to seek an order allowing consent from the

court does not mean the legislature intended

that a ward’s marriage would be invalid unless

the guardian first obtained the court’s approval.

The appellate court was correct that nothing

in the plain language of section 11a-17(a-10)

provides that a marriage entered into by a

ward without his or her guardian’s consent,

or following a judicial determination of best

interest, is void. Pet.App.48a-49a. (Theis, J.

dissenting, emphasis added.)

The partial dissent additionally made clear the broad

impact of the majority’s holding:

The majority’s erroneous ruling renders void

any marriage in Illinois that has been entered

into since August 26, 2014, by a ward with

a plenary guardian who did not first receive

a court order authorizing and directing the

guardian to consent to the ward’s marriage. See

Pub. Act 98-1107, (eff. Aug. 26, 2014) (adding

755 ILCS 5/11a-17(a-10)). The majority fails to

acknowledge the very serious impact of this

holding on such couples, including those who

may have had a child following what they had

every reason to believe was a valid marriage

in Illinois. Pet.App.51a. (Theis, J., dissenting.)

12

D. Ellizzette’s Petition for Rehearing.

Ellizzette petitioned for rehearing contending the

majority overlooked that its construction of section

11a-17(a-10) impermissibly interfered with the fundamental

rights of wards to marry, as she had previously argued,

citing Zablocki and Turner. (Appellee’s Petition for

Rehearing, pp. 6-19.) Ellizzette also maintained the

majority opinion should not be applied retroactively

because of the tremendous prejudice that rendering void

an untold number of marriages in Illinois would have on

these couples and their children. Id., pp. 19-23.

On September 26, 2022, the Illinois Supreme Court

denied rehearing. Pet.App.119a. Neither that court’s

majority opinion nor its order denying rehearing

addressed Ellizzette’s constitutional objections or the

effect on couples who had every reason and right to believe

they entered valid marriages.

REASONS FOR GRANTING THE PETITION

This case presents a clear opportunity for this

Court to rule on an issue that has and will continue to

have importance throughout the country: whether the

fundamental rights of adult wards to marry can be

eliminated simply by an order of guardianship, without

any specific reference to withdrawing that right. It also

allows this Court to address the limitations the Due

Process Clause and the Equal Protection Clause impose

on states’ attempts to restrict the exercise of these rights.

The right to marry has long been recognized as a

fundamental right protected by the Due Process and

13

Equal Protection Clauses of the Fourteenth Amendment.

See Loving v. Virginia, 388 U.S. 1, 12 (1967); M.L.B. v.

S.L.J., 519 U.S. 102, 116 (1996); Turner, 482 U.S. at 95.

As this Court held in Zablocki, the right to marry

is “one of the ‘basic civil rights of man’ fundamental to

our very existence and survival.” Zablocki, 434 U.S. at

398, quoting Loving, 388 U.S. at 12, quoting Skinner v.

Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).

Zablocki further made clear:

When a statutory classification significantly

interferes with the exercise of a fundamental

right, it cannot be upheld unless it is supported

by sufficiently important state interests and

is closely tailored to effectuate only those

interests.

Zablocki, 434 U.S. at 388.

Thus, in Zablocki, this Court struck down a Wisconsin

statute that rendered void marriages of fathers who

owed child support payments unless the fathers obtained

court orders allowing their marriages – orders that

could only be obtained if the fathers proved they paid the

child support arrearages or proved their children would

not become public charges. Id. at 377-378. In holding

these requirements impermissibly interfered with the

constitutional right to marry, this Court held:

Some of those in the affected class, like

appellee, will never be able to obtain the

necessary court order, because they either

lack the financial means to meet their support

14

obligations or cannot prove that their children

will not become public charges. These persons

are absolutely prevented from getting married.

Many others, able in theory to satisfy the

statute’s requirements, will be sufficiently

burdened by having to do so that they will in

effect be coerced into forgoing their right to

marry. And even those who can be persuaded

to meet the statute’s requirements suffer a

serious intrusion into their freedom of choice

in an area in which we have held such freedom

to be fundamental. (Id. at 387.)

This Court acknowledged that the interests the Wisconsin

statute sought to further may be valid. Nonetheless,

because less restrictive alternatives were available, the

statute impermissibly interfered with the right to marry.

It noted:

rega rdless of the applicant’s abi lity or

willingness to meet the statutory requirements,

the State already has numerous other means for

exacting compliance with support obligations,

means that are at least as effective as the

instant statute’s, and yet do not impinge upon

the right to marry. (Id. at 389.)

In Turner, this Court expanded upon Zablocki and

ruled that prison restrictions impermissibly restricted

inmates’ rights to marry when they required proof of

a “compelling reason” to allow a prisoner’s marriage.

Turner, 482 U.S. at 98-99. The “compelling reason”

exception was particularly problematic since there were

“obvious, easy alternatives … that accommodate the right

to marry” that could still implement those objectives. Id.

15

I.

The states have split on whether a ward’s

fundamental right to marry can be eliminated

without a specific order removing the right.

Recognized standards of due process and equal

protection require particularized findings before a state

may totally restrict the exercise of a fundamental right.

“Since marriage is a fundamental right, the state could

not restrict the right to marry for less than compelling

reasons.” Rotunda, Nowak, Amar, Amar & Calabresi,

Treatise on Constitutional Law (5th Ed.) §18.28(a).

Additionally, “the Court will subject laws that restrict

individual choice regarding marriage or divorce to ‘strict

scrutiny’ under the due process or equal protection

clauses.” Id.

Recognizing these standards, section 310(a)(4) of

the Uniform Guardianship, Conservatorship, and other

Protective Arrangements Act requires that an order of

guardianship:

state whether the adult subject to guardianship

retains the right to marry and, if the adult does

not retain the right to marry, include findings

that support removing that right.

Uniform Guardianship, Conservatorship, and other

Protective Arrangements Act, §310(a)(4). Section 310(b)

provides that “[a]n adult subject to guardianship retains

the right to marry unless the order under subsection (a)

includes the findings required by subsection (a)(4).” The

Comment to section 310 further notes “the right to vote

and the right to marry are fundamental rights and should

not be removed without a compelling reason.” Id.

16

While the drafters of the Uniform Act recognize

the ward should retain the right to marry unless an

appropriate order specifically withdrawing that right is

entered, no decision from this Court has so held directly.

As a result, whether a state may remove the fundamental

right of a ward to marry solely upon the entry of an order

of guardianship, without a specific order withdrawing the

right, is also not uniform.

Some states have held that a specific determination

that the ward is incapacitated regarding his or her ability

to marry is required before a guardian may be granted

the right to determine who the ward may marry. In In re

the Guardianship of Mikulenec, 356 N.W.2d 683 (Minn.

1984), for example, the Minnesota Supreme Court held

the right could be withdrawn and granted to the guardian

only upon satisfactory proof that the ward was “clearly

incapacitated with respect to choosing a spouse.” It noted:

Freedom to choose a spouse is one of those

personal freedoms which may, under proper

circumstances, be restricted. In certain rare

cases, such as this case, where a person clearly

is incapacitated with respect to choosing a

spouse, a court may appoint a conservator of the

person to approve or disapprove of a marriage.

Id. at 688. (Emphasis added.)

Unlike section 11a-17(a-10), the statute before

the Minnesota Supreme Court did not interfere with

marriage on its face. But even it if it did, “only those found

‘incapacitated with respect to choosing a spouse’ could

have conservators appointed for them.” Id. at 689. “Once

that determination was made the guardian could only be

17

given the limited powers necessary to protect the ward.”

Id. As a result, “[t]the statute would not violate the 14th

Amendment, even if subject to strict scrutiny test.” Id.

See also Matter of Guardianship of Kindell, 2022 Ohio3456, ¶34 (Ohio App. 2022) (“In the context of marriage,

an adjudication of incompetency prior to marriage is not

necessarily conclusive proof of the person’s incapacity to

enter a valid marriage.”); In re Guardianship of O’Brien,

847 N.W.2d 710, 715 (Minn. App. 2014) (fundamental right

to marry not withdrawn by guardianship order; guardian

bore the burden of showing ward lacked capacity to

marry).

Indeed, before the Illinois Supreme Court ruled in

the case below, it agreed with Minnesota and Ohio that

an order of guardianship alone did not withdraw the right

to marry. In Pape v. Byrd, 145 Ill.2d 13, 22 (Ill. 1991),

the court held that “the appointment of a guardian of a

person is not sufficient, in and of itself, to show that the

person was incompetent to have consented to a marriage.”

While the court below attempted to distinguish its earlier

ruling by noting that, although a guardianship had been

entered in Pape, the prior guardian had resigned when

the ward married so no consent or best interest hearing

was at issue, it made no attempt to reconcile its ruling

with Pape’s actual holding. Pet.App.33a-34a.4

4. In contrast to the elimination of the ward’s right to marry,

a ward in Illinois retains the fundamental right to vote. See Hurch

and Applebaum, Defining and Assessing Capacity to Vote: The

Effect of Mental Impairment on the Rights of Voters, 38 McGeorge

L. Rev. 931, 958-59 (2007) (noting Illinois wards retain the right to

vote); https://ova.elections.il.gov/ (listing requirements for voting in

Illinois). The ward also retains the fundamental right to procreate

and specifically to withhold consent to a guardian’s request for the

18

At least 12 states agree that an order of guardianship

alone does not eliminate the ward’s fundamental right

to marry. 5 Other states withdraw the right to marry,

ward’s sterilization. See 755 ILCS 5/17.1(f) (“The ward shall not be

deemed to lack such capacity solely on the basis of the adjudication

of disability and appointment of a guardian” and if court finds the

ward has the ability to consent and withholds consent to sterilization

it “shall enter an order consistent with the ward’s objection or consent

and the proceedings on the verified motion shall be terminated.”)

5. See e.g., Cal. Prob. Code §1900 (“[t]he appointment of a

conservator of the person or the estate or both does not affect the

capacity of the conservatee to marry” and §1901(a) (‘[t]he court

may by order determine whether the conservatee has the capacity

to enter into a valid marriage”); Iowa Code § 633.635(4) (court

shall “state those areas of responsibility which shall be supervised

by the guardian and all others shall be retained by the protected

person. The court may make a finding that the protected person

lacks the capacity to contract a valid marriage” but absent specific

order withdrawing the ward’s ability to marry, the ward retains

that right); Me. Rev. Stat. tit. 18-C, § 5-310(2)(B) (“An adult subject

to guardianship retains the following rights:...[t]he right to marry,

unless the court orders otherwise. A court order removing the

right to marry or placing conditions on the right to marry must

include findings that support the removal of the right to marry or

support conditions on the right to marry.”); N.Y. Mental Hyg. Law

§81.29(a)-(b) (“incapacitated person for whom guardian is appointed

retains all powers and rights except those powers and rights which

the guardian is granted…” and “[s]ubject to subdivision (a) … the

appointment of a guardian shall not be conclusive evidence that the

person lacks capacity for any other purpose,…”); N.D. Cent. Code §

30.1-28-05(3) (“Letters of guardianship must contain... [s]pecification

of limitations by the court upon the rights and privileges of the

ward in matters not governed by powers of the guardian, such as

voting, marriage, and driving.”); 20 Pa. C.S.A. § 5521(d)(2) (“Unless

specifically included in the guardianship order after specific findings

of fact or otherwise ordered after a subsequent hearing with specific

19

without a specific finding.6 Still other states provide that

the “guardian may consent to the marriage” of the ward.7

The split in authority, exacerbated by the Illinois

Supreme Court’s ruling, confirms the need for this Court

findings of fact, a guardian or emergency guardian shall not have

the power and duty to...[p]rohibit the marriage or consent to the

divorce of the incapacitated person.”); S.C. Code § 62-5-304A(A)

(1) (“[t]he court shall set forth the rights and powers removed from

the ward. To the extent rights are not removed, they are retained

by the ward. Such rights and powers include the rights and powers

to...marry or divorce.”); Utah Code § 75-5-301.5(2)(k) (“[e]xcept as

otherwise provided by this chapter or any other law, a person alleged

to be incapacitated has the right to...(k) engage in any activity that

the court has not expressly reserved for the guardian, including

marriage or domestic partnership, traveling, working, or having

a driver license.”); Wash. Rev. Code § 11.130.310(1)(d) (“[a] court

order appointing a guardian for an adult must...[s]tate whether the

adult subject to guardianship retains the right to marry and, if

the adult does not retain the right to marry, include findings that

support removing that right.”); Wis. Stat.§§ 54.25; 54.44 (order

of guardianship may declare ward lacks capacity “to consent to

marriage” but the finding supporting removing the right “must be

based on based on clear and convincing evidence. In the absence of

such a finding, the right is retained by the individual.”)

6. See e.g., Fla Stat. §744.3215(2)(a) (if the right to contract

is removed, the right to marry is also removed); Ga. Code §29-421(a)(1) (“Unless the court’s order specifies that one or more of the

following powers are to be retained by the ward, the appointment

of guardian shall remove from the ward the power to …contract

marriage….”); N.J. Stat. §3B:12-24.1(a) (“guardian shall exercise

all rights and powers of incapacitated person.”).

7. See e.g., Ariz. Rev. Stat. §14-5209(C)(5) (“guardian may

… consent to the marriage or adoption of the ward”); Ala. Code

§ 26-2A-108(a); §26-2A-78(c)(5) (“guardian may … consent to the

marriage or adoption of the ward”); Haw. Rev. Stat. § 560:5-315(a)(5);

Mass. Gen. Laws ch. 190B, § 5-209(c)(4); Wyo. Stat. § 3-2-201(b)(vi).

20

to settle the issue of whether a state can remove a ward’s

fundamental right to marry without an order specifically

removing that right, supported by compelling reasons.

II. Whether the Illinois statute is the least restrictive

way to protect wards and protect their ability to

marry merits review by this Court.

Section 11a-17(a-10), as now construed by the Illinois

Supreme Court, prevents a ward from marrying of his or

her accord. Because obvious, less restrictive methods exist

to protect the ward and the ward’s ability to exercise his

or her right to marry, this Court should grant certiorari

to determine if their existence confirms that the statute

impermissibly interferes with these rights.

A less restrictive method to protect the ward and his

or her right to marry is to follow the statutory procedure

the Illinois legislature actually enacted: recognize a ward

has the right to marry of his or her accord subject to the

guardian’s ability “to file a petition for … declaration of

invalidity of marriage under the Illinois Marriage and

Dissolution of Marriage Act on behalf of the ward if the

court finds by clear and convincing evidence that the

relief sought is in the ward’s best interests.” 755 ILCS

5/11a-17(a-5). Another less restrictive method is to follow

the Uniform Guardianship Act and require the entry of

an order that specifically withdraws the ward’s right to

marry, based on compelling evidence, before the ward’s

right may be withdrawn.

The rule announced by the Illinois Supreme Court,

however, ignores these obvious and less restrictive

alternatives. Indeed, even without considering the effect

21

of delegating to the guardian the decision of whether

the ward can marry, the requirement of a best interest

hearing itself requires resources that not all wards and

their guardianship estates may have. Using language from

Zablocki, “[s]ome of those in the affected class … will

never be able to obtain the necessary court order, because

their [guardianship estates] lack the financial means” to

fund the preparation of the petition and the presentation

of evidence necessary to meet this demanding standard

of proof. Zablocki, 434 U.S. at 387. If the guardianship

estate cannot fund this litigation, including paying for

qualified experts to meet this standard, “[t]hese persons

are absolutely prevented from getting married.” (Id.) In

other instances, the guardian may simply refuse to spend

the money to obtain the order, which may be influenced by

the impact of the estate proceeds that the guardian may

receive later. These expenses effectively close the door

for many wards to marry.

Additionally, section 11a-17(a-10)’s language does not

compel a guardian to file a petition for an order directing

him or her to consent to the marriage, even when the

ward is completely able to understand the nature, effect,

duties, and obligations of marriage and the marriage is

in the ward’s best interest. Nor does the statute allow

the ward to compel the filing of a petition. Additionally,

any guardian could contend, for example, that he or she

“believed” a marriage was not in the ward’s interests.

Indeed, to the extent a spouse will be entitled to a portion

of the ward’s property, one could argue that marriage

will almost always not be in the ward’s economic interest.

Guardians also may have financial incentives and

conflicts of interest that interfere with their decisions to

22

file petitions. Here, for example, John’s guardian Shawn

is disinherited if the ward married.

III. The high evidentiary burden imposed on the right

to marry merits review by this Court.

In addition to the restrictions imposed by cost of filing

and prosecuting the petition, this Court should review

whether the high evidentiary burden of section 11a-17(a-10)

improperly interferes with the fundamental rights of wards

to marry. This Court has already made clear this type of

burden impermissibly restricted prisoners’ rights to marry.

See Turner, 482 U.S. at 96-97 (regulation that required proof

of a “compelling reason” to allow the marriage is particularly

problematic and impermissibly restricted prisoners’ right to

marry.) And while the removal of a ward’s fundamental right

to marry should require extraordinary proof, the exercise

of that right by the ward should not.

To be sure, a clear and convincing evidentiary burden

makes sense when a guardian totally supplants the ward

and seeks to consent to a marriage to which the ward

has no physical or mental capacity to consent. Ellizzette

argued below that the intent of section 11a-17(a-10) was

to provide a mechanism to allow a guardian to consent

to a marriage when the ward lacked the actual ability

to do so personally. Indeed, section 11a-17(a-10) is the

mirror image of section 11a-17(a-5), which grants a

guardian standing to prosecute a divorce action on behalf

of a ward. 8 Additionally, as the partial dissent noted, “a

8. In Karbin v. Karbin, 2012 IL 112815, the case that

prompted the enactment of section 11a-17(a-5), a catastrophically

injured and abandoned spouse could not consent to the divorce

23

guardian may seek such a court order for ease of meeting

the requirements of the Marriage Act on behalf of his

or her ward who is marrying or to prevent a subsequent

challenge that his or her ward lacked, for purposes of the

Marriage Act, the capacity to consent to the marriage.”

Pet.App.48a-49a.

When, however, this high evidentiary burden is used

to restrict rather than to assist a ward’s right to marriage,

this Court should determine, as it did in Turner and

Zablocki, whether it impermissibly interferes with the

fundamental right of the ward to marry.

IV. Whether obvious, easy alternatives exist that

protect the state’s interest and do not unnecessarily

interfere with a ward’s right to marry merits review

by this Court.

When obvious, easy alternatives to protect the state’s

interest exist and do not unnecessarily interfere with

the right to marry, this Court has struck down statutory

restrictions that do substantially interfere with this right.

Turner, 482 U.S. at 98.

Aware of these constitutional obligations, many states

require an individualized assessment of a ward’s ability

action, but the court ruled the guardian could initiate the

proceeding anyway. Similarly, a fiancé who suffered a catastrophic

injury, e.g., while deployed in combat serving in the armed

services, may no longer be able to consent to the marriage he or

she agreed to before the injury. In such an instance, the guardian

may seek an order directing him to consent “on behalf of the ward”

to the marriage upon a clear and convincing proof the ward would

have agreed to, had he or she been able to consent, and is in the

ward’s best interests.

24

to marry before the ward’s fundamental right can be

revoked, including states surrounding Illinois. Wisconsin,

for example, requires an individualized assessment and a

specific finding, based on clear and convincing evidence,

before the ward’s right to consent to marriage can be

removed. Wis. Stat.§§ 54.25; 54.44. Absent such an order,

the ward retains that right. Id.

Iowa requires the trial court to “state those areas

of responsibility which shall be supervised by the

guardian and all others shall be retained by the protected

person.” Iowa Code Ann. § 633.635(4). Iowa also confirms

“[t]he court may make a finding that the protected person

lacks the capacity to contract a valid marriage.” Id. As

in Wisconsin, absent a specific order withdrawing the

ward’s ability to marry, the ward retains that right. Id.

Indiana’s statute, on the other hand, provides the guardian

“may consent” to the ward’s marriage. Ind. Code §§ 293-8-2(a)(5), (b). Since Indiana also prevents a court clerk

from issuing a marriage license to any person adjudged

“mentally incompetent,” Ind. Code § 29-3-8-8, it removes

the rights of all wards to marry.9

Illinois’ Probate Act, like guardianship statutes

around the country, provide that “[g]uardianship shall be

ordered only to the extent necessitated by the individual’s

actual mental, physical, and adaptive limitations,” 755

ILCS 5/11a-3(b) (emphasis added). As a result, each ward

has a legitimate property interest protected by state law

to expect that such an order would be entered. See Logan

9. See Quasius, The Next Step in Marriage Equality:

Indiana Restrictions on Marriage for Individuals under Adult

Guardianship, 31 Geo.Mason U.Civ.Rts.L.J. 135, 148-49. (2021)

(concluding that Indiana’s guardianship statutory scheme is

unconstitutional).

25

v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982) (noting

that property “is an individual entitlement grounded in

state law’”).

This Court should review whether requiring a

specific determination, based on compelling evidence, is

a sufficiently obvious alternative that protects the ward

and the ward’s right to marry before the right can be

withdrawn.

V. Whether rendering void the marriages of John,

Ellizzette and all similarly situated couples without

due process should be reviewed by this Court.

A law should provide fair warning of what it requires,

providing a “person of ordinary intelligence a reasonable

opportunity to know what is prohibited.” Grayned v. City

of Rockford, 408 U.S. 104, 108 (1972).

There is simply no notice in section 11a-17(a-10) to

persons of ordinary intelligence that a marriage entered

into by a ward without a prior court order directing the

guardian to consent to the marriage, after presenting

clear and convincing evidence that the marriage is in the

ward’s best interests, is void ab initio. Until the Illinois

Supreme Court’s decision, no reported case law in Illinois

provided any such notice. Similarly, no notice was provided

by any other Illinois statute.

Interests in marriage are “deeply rooted in this

Nation’s history and tradition” and “implicit in the concept

of ordered liberty.” Washington v. Glucksberg, 521 U.S.

702, 720-721 (1997). All parties to these marriages,

including Ellizzette, have liberty interests in their

26

marriages. They also have property interests in their

marriages. See, e.g. Logan, 455 U.S. at 430. All such

liberty and property interests have been eliminated

by a statute that renders their marriages void without

any further proceedings – even though the text of the

statute plainly does not require this result. See Loving v.

Virginia, 388 U.S. 1, 12 (1967) (statute that held marriages

void without decree violated due process).

And even if “the Due Process Clause at most

guarantees process,” Dobbs v. Jackson Women’s Health

Organization, ___ U.S. ___, 142 S. Ct. 2228, 2301 (2022)

(Thomas, J., concurring, emphasis in original), the

individuals whose marriages are now rendered void, as

well as their children, were not even given that. Indeed,

the majority opinion did not even parse the statute to

explain the textual source of its ruling.

The prejudice to these individuals is great. Those

who wish to continue their “marriages” must obtain the

consent of the wards’ guardians, who can only provide such

consent after running the gauntlet of section 11a-17(a-10).

Husbands or wives who opportunistically no longer wish

to remain “married” may decide that the complication and

expense of divorce proceedings are no longer necessary.

Instead, relying on the ruling that their marriages are and

have always been void, they may simply walk away from

them. The fate of surviving “spouses” to such “marriages,”

as well as the legal status of their children, especially in

the event one of them passes, is also uncertain.

Neither guardians nor wards are required to be

clairvoyant. They are not required to anticipate an

unprecedented construction of a statute that is not moored

27

in its text. This Court is the only one that can give back

these marriages. It should therefore grant review to

determine whether section 11a-17(a-10), as applied by the

Illinois Supreme Court, violates due process.

CONCLUSION

The Court should grant the petition.

Respectfully Submitted,

Steven J. Roeder

Ryan P. Weitendorf

Roeder Law Offices LLC

77 West Washington Street,

Suite 2100

Chicago, Illinois 60602

(312) 667-6000

Robert G. Black

Counsel of Record

Law Offices of

Robert G. Black, P.C.

101 North Washington Street

Naperville, Illinois 60540

(630) 527-1440

rblack@rgb-law.com

Counsel for Petitioner

APPENDIX

i

TABLE OF APPENDICES

Page

Appendix A — opinion of the supreme

court of the state of illinois,

filed april 21, 2022 . . . . . . . . . . . . . . . . . . . . . . . 1a

Appendix b — opinion of the appellate

court of illinois, second district,

filed february 1, 2021 . . . . . . . . . . . . . . . . . . 55a

APPENDIX C — EXCERPT OF TRANSCRIPT

OF THE STATE OF ILLINOIS, COUNTY

OF KANE, DATED NOVEMBER 18, 2019 . . . . 115a

APPENDIX D — DENIAL OF REHEARING

FOR THE SUPREME COURT OF ILLINOIS,

DATED SEPTEMBER 26, 2022 . . . . . . . . . . . . . . 119a

1a

Appendix of

A the supreme

Appendix A — opinion

court of the state of illinois,

filed april 21, 2022

IN THE Supreme Court of Illinois

Docket No. 126956

In re ESTATE OF JOHN W. McDONALD III,

Deceased.

Shawn McDonald,

Appellant,

v.

Ellizzette McDonald,

Appellee.

April 21, 2022, Opinion Filed

CHIEF JUSTICE ANNE M. BURKE delivered the

judgment of the court, with opinion.

Justices Garman, Neville, and Michael J. Burke

concurred in the judgment and opinion.

Justice Theis concurred in part and dissented in part,

with opinion, joined by Justices Overstreet and Carter.

2a

Appendix A

OPINION

The issue in this appeal is whether Ellizzette

McDonald, also known as Ellizzette Duvall Minnicelli

(Ellizzette), sufficiently established that she is the

surviving spouse of John W. McDonald III (John) and, as

such, the sole heir of his estate.

On November 18, 2019, trial was held in Kane County

circuit court on Ellizzette’s claim of heirship. Ellizzette,

pro se, presented the testimony of three witnesses in an

effort to establish that, on July 11, 2017, she entered into

a legally valid marriage with John, who died intestate, on

December 11, 2017. At the conclusion of Ellizzette’s case,

Shawn McDonald (Shawn), as the appointed administrator

of John’s estate, moved for a directed finding, which the

circuit court granted. The court held that Ellizzette failed

to present a prima facie case establishing the validity of

her marriage to John.

Ellizzette appealed, and the Appellate Court, Second

District, affirmed in part, reversed in part, and remanded

for further proceedings. 2020 IL App (2d) 191113-U.

The appellate court held that a new trial was necessary

because the circuit court erred when it barred Ellizzette

from testifying based on the Dead Man’s Act. 735 ILCS

5/8-201 (West 2016).

Shawn filed a petition for leave to appeal in this

court, which we granted. For the reasons that follow, we

now reverse the appellate court judgment and affirm the

circuit court’s judgment.

3a

Appendix A

BACKGROUND

On December 15, 2017, Shawn McDonald filed a

petition in the circuit court of Kane County, seeking letters

of administration for the estate of his deceased brother,

John W. McDonald III, who died intestate on December

11, 2017, in Paris, Illinois. Attached to the petition was an

affidavit of heirship, in which Shawn averred that John’s

estate consisted of approximately $225,000 in personal

property and that John’s only heirs were his parents,

John W. McDonald Jr. and Brenda K. McDonald, and

his siblings, Heather Ladue (sister), Shawn McDonald

(brother), and Brett McDonald (brother). Shawn further

averred that on May 30, 2017, he had been appointed

plenary guardian over John’s person and estate by the

circuit court of Kane County and that thereafter, on July

11, 2017, without the prior knowledge or consent of his

guardian or the court, John participated in a purported

wedding ceremony with a person who identified herself

as Ellizzette Duvall Minnicelli. Shawn alleged that this

marriage was without legal effect and void ab initio

because John, as a ward, lacked the legal capacity to

consent to the marriage without a judicial finding that the

marriage was in John’s best interest. On December 19,

2017, the circuit court entered orders appointing Shawn

administrator and declaring John’s heirs to be John Jr.,

Brenda, Heather, Shawn, and Brett.

On December 22, 2017, Shawn filed a petition for

declaration of invalidity of marriage pursuant to section

301(1) of the Illinois Marriage and Dissolution of Marriage

Act (Marriage Act), which provides:

4a

Appendix A

“The court shall enter its judgment declaring

the invalidity of a marriage (formerly known

as annulment) entered into under the following

circumstances:

(1) a party lacked capacity to consent

to the marriage at the time the

marriage was solemnized, either

because of mental incapacity or

infirmity or because of the influence of

alcohol, drugs or other incapacitating

substances, or a party was induced

to enter into a marriage by force

or duress or by fraud involving the

essentials of marriage[.]” 750 ILCS

5/301(1) (West 2016).

In support of his petition, Shawn attached an affidavit

in which he averred that on May 30, 2017, he had been

appointed by the circuit court of Kane County to serve

as plenary guardian of John’s person and estate. Shawn

further averred that during a contested guardianship

hearing on November 16, 2017, he learned for the first

time that John had participated in a purported marriage

ceremony on July 11, 2017, and that John entered into this

marriage without the prior knowledge or consent of his

guardian (Shawn) or the court.

Attached to Shawn’s affidavit were various documents

considered by the guardianship court, including a

physician’s report from Dr. Ramon A. Gonzales. Dr.

Gonzales reported that John had been diagnosed with

5a

Appendix A

“bipolar disorder with manic and depressive episodes” and

that John suffered from “alcohol use disorder (severe).”

According to Dr. Gonzales, John’s bipolar disorder,

which “by its own nature impair[ed] his ability to make

reasonable and safe decisions,” coupled with John’s refusal

to comply with prescribed treatment, meant that John was

“at a high risk of being hurt by others due to his behavior,

or to hurt himself, besides not being able to manage his

financial affairs at this time.”

Shawn also provided a report from Fred J. Beer,

who served as John’s guardian ad litem (GAL) in the

2017 guardianship proceedings, which the guardianship

court also considered. Beer reported that, based on his

conversations with John and several members of John’s

family, John had been a neurologist but he had not

practiced for the last four years. Beer also reported that

John suffered from bipolar disorder, alcoholism, and drug

addiction; that John had been in rehabilitation at least

three times, each completed unsuccessfully; and that John

had twice attempted suicide by taking pills and alcohol.

Beer noted that John, when in a manic state, spent money

recklessly and irrationally. For example, Beer reported

that John had a habit of purchasing expensive jewelry

and gifts only to give them away to total strangers. In the

three years prior to the guardianship hearings, John had

frivolously spent approximately $600,000. John’s family

members described John as “out of control” and a “king

manipulator.” Based on his investigation, Beer advised the

court that he concurred with the doctor’s recommendation

that guardianship was in John’s best interest.

6a

Appendix A

Based on the above information, the guardianship

court found that John was a disabled person in need

of guardianship, as defined in the Probate Act of 1975

(Probate Act) (755 ILCS 5/1-1 et seq. (West 2016)), and

appointed Shawn as John’s plenary guardian. The record

indicates that, after Shawn’s appointment, John filed a

motion to vacate the guardianship order. Although the

court denied John’s motion at a hearing on July 6, 2017,

the court appointed independent counsel for John, to assist

him in seeking the termination of Shawn’s guardianship.

In addition, the court ordered John to appear at Alexian

Brothers Hospital on Monday, July 10, 2017, for further

evaluation. Subsequently, John, through his counsel, filed a

petition to terminate Shawn’s guardianship. Proceedings

on this petition were ongoing until John’s death on

December 11, 2017.

In addition to the above documents and court orders,

Shawn attached, to his petition to declare the marriage

invalid, a photocopy of what purported to be a certified

marriage certificate for John Wood McDonald III and

Ellizzette Duvall Minnicelli, issued on July 17, 2017. It

indicated that the marriage took place in Paris, Illinois, on

July 11, 2017, with Raymond Carl Bement as the officiant.

No witnesses were listed on the certificate.

On January 3, 2018, Shawn filed a petition to recover

assets, seeking an order requiring Ellizzette to turn over

to the estate John’s cremains,1 as well as various personal

items including John’s cell phone and laptop computer. It

1. More than a year later, at a hearing on May 1, 2019, Ellizzette

testified that she scattered John’s ashes in Lake Michigan and that

no one accompanied her to witness this event.

7a

Appendix A

was alleged that, shortly after John’s death and without

the knowledge of John’s family, Ellizzette took possession

of John’s body and authorized its cremation “in order to

prevent any further investigation into the cause of [John’s]

death.” 2

In response to Shawn’s petition, counsel entered

an appearance on behalf of “Ellizzette McDonald” on

January 4, 2018, and moved for a substitution of judge

as a matter of right. That motion was granted, and on

January 17, 2018, Ellizzette filed a motion to vacate the

court’s orders appointing Shawn administrator of John’s

estate and declaring heirship. Ellizzette asserted that

she was John’s surviving spouse and, as such, his sole

heir. Ellizzette further asserted that Shawn, having

been aware that she was John’s surviving spouse, had

obtained letters of administration under false pretenses.

Ellizzette maintained that the orders granting Shawn

letters of administration and declaring heirship were void

for want of personal jurisdiction because Shawn failed to

comply with the mandatory requirements of sections 9-4

and 9-5(a) of the Probate Act (id. §§ 9-4, 9-5(a)), failed to

include a necessary party (her), and wrongfully excluded

her as John’s heir. In the alternative, Ellizzette also filed

a motion to reconsider and modify the orders.

2. On January 31, Shawn also sought a court order to require

MNS Labs to turn over to the estate a sample of John’s blood that

was in its possession. According to the motion, the blood sample had

been taken following John’s death and remained in storage at MNS

Labs after testing. It was alleged that the sample would advance

the estate’s investigation into John’s death, which Ellizzette had

concealed from John’s family. That motion was later granted over

Ellizzette’s objection.

8a

Appendix A

On February 1, 2018, Ellizzette filed a response

to Shawn’s petition for declaration of invalidity of

marriage, denying that John lacked the capacity to

marry. Ellizzette offered no evidence to support her

claim that the marriage was legally valid. Rather, she

asserted that Shawn had engaged in a “years-long

extensive, improper and unjustified pattern and practice

of attempting to wrongfully seize control of John’s assets

and otherwise harass John and Ellizzette,” as evidenced

by Shawn’s “unwarranted and unjustified procurement of

guardianship over John.”

On March 7, 2018, Shawn voluntarily withdrew his

petition for declaration of invalidity of marriage. On the

same day, Shawn filed his response to Ellizzette’s motion

to vacate his appointment as administrator, asserting that,

although Ellizzette may have participated in a marriage

ceremony with John, John lacked the capacity to enter

into a legally valid marriage contract because he was a

ward subject to plenary guardianship. In support of this

position, Shawn cited sections 11a-17(a-10) and 11a-22(b)

of the Probate Act (id. §§ 11a-17(a-10), 11a-22(b)). Section

11a-22(b) provides that

“[e]very note, bill, bond or other contract by

any person for whom a plenary guardian has

been appointed or who is adjudged to be unable

to so contract is void against that person and

his estate, but a person making a contract with

the person so adjudged is bound thereby.” Id.

§ 11a-22(b).

9a

Appendix A

Shawn asserted that marriage is a contract and, pursuant

to section 11a-22(b), the marriage contract entered into

by John and Ellizzette on July 11, 2017, was void and the

marriage invalid, affording Ellizzette no rights regarding

the estate.

Ellizzette replied, asserting that section 11a-22(b) of

the Probate Act was inapplicable to a marriage contract.

She contended that the validity of a marriage is governed

by section 301 of the Marriage Act (750 ILCS 5/301

(West 2016)). Further, she argued that a challenge could

not be made to the validity of the marriage since John

was deceased and section 302(b) of the Marriage Act

provides: “In no event may a declaration of invalidity of

marriage be sought after the death of either party to the

marriage under subsections (1), (2) and (3) of Section 301.”

Id. § 302(b).

On March 20, 2018, counsel for Shawn issued a “Notice

of Deposition to Ellizzette McDonald (‘Ellizzette’)” and

on April 19, 2018, Shawn filed a petition for a citation to

discover and recover information and/or assets under

section 16-1 of the Probate Act. 755 ILCS 5/16-1 (2016).

After a hearing on April 18, 2018, the court denied

Ellizzette’s motion to vacate the order appointing Shawn

administrator but granted her leave to file a petition

seeking letters of administration and an affidavit of

heirship based on her assertion that she is John’s surviving

spouse and sole heir. Ellizzette filed that petition on May

1, 2018.

10a

Appendix A

On May 17, 2018, Shawn filed a response to Ellizzette’s

petition, along with a “Request to Admit Facts and

Genuineness of Documents” in which Shawn sought

documentation from Ellizzette regarding her identity,

including birth records, marriage and divorce records,

documentation of any official name changes, and an

admission that a birth certificate for Lisa Anne Blaydes

was, in fact, her birth certificate.

Ellizzette did not appear for a deposition, nor did

she respond to any of the requests to admit facts and

provide discovery. As a result, on June 5, 2018, Shawn

filed a motion to compel discovery. Two days later, on

June 7, 2018, Ellizzette filed a motion for judgment

on the pleadings regarding her petition for letters of

administration. In addition, Ellizzette sought a protective

order to stay discovery pending the resolution of her

motion for judgment on the pleadings. The motion to stay

discovery was denied on June 13, 2018, and the court

ordered Ellizzette’s counsel to respond to Shawn’s request

to admit facts and to produce Ellizzette for deposition.

Nevertheless, Ellizzette failed to appear for two scheduled

depositions—on July 19 and 25, 2018. Under threat of

sanctions, Ellizzette appeared for a deposition on August

22, 2018.

At the deposition, Ellizzette was shown copies of

a marriage license application, marriage license, and

marriage certificate, each listing Ellizzette Duvall

Minnicelli as the bride. In addition, each of these

documents indicated that Ellizzette Duvall Minnicelli

was born in Lyon, France, on March 21, 1964, and that

11a

Appendix A

she was a “physician scientist.” Throughout discovery

and at the deposition, Ellizzette failed to produce any

documents to verify the information contained in these

documents, nor did she establish her identity as Ellizzette

Duvall Minnicelli. When Ellizzette was shown a birth

certificate and other documents suggesting that Ellizzette

was born Lisa Anne Blaydes on March 21, 1963 (one

year earlier than stated in the marriage documents),

in Maine Township, Cook County, Illinois, she refused

to acknowledge that this was her birth certificate. She

admitted that she had been known by other names and

produced the following: an employment verification

letter indicating that Lisa Blaydes-Zollner (SS# ***-**1769) worked as a student employee at the University of

Illinois at Chicago for various periods between 1985 and

1993; two United States passports, one issued November

23, 1999/expiring November 22, 2009, and a second one

issued April 11, 2013/expiring July 10, 2013, as well as

an undated Social Security card (***-**-1769), and an

Australian driver’s license (expiration date June 25, 2012),

all issued in the name Ellizzette Blaydes Duvall; a social

security card (***-**-1769) issued August 2, 2010, in the

name Ellizzette Anne Mareen Minnicelli; an “interim

Medicare card” expiring July 24, 2013, issued in the

name Ellizzette B. Minnicelli; a passport issued July 3,

2013/expiring July 2, 2023, in the name Ellizzette Duvall;

an Illinois driver’s license dated April 25, 2013/expiring

March 21, 2018, issued in the name Ellizzette Duvall

Minnicelli; an undated Social Security card (***-**-1769)

issued to and signed by Ellizzette A.M. Duvall; an Illinois

driver’s license dated July 18, 2017/expiring March 21,

2018, issued in the name Ellizzette Duvall McDonald; and

12a

Appendix A

a Social Security card dated September 8, 2017, issued in

the name Ellizzette Anne Mareen McDonald. No evidence

of marriages, divorces, or applications for name changes

were provided.

After deposing Ellizzette, Shawn filed a response to

the motion for judgment on the pleadings on August 28,

2018. He argued that there were disputed issues of fact.

In support, Shawn attached portions of the deposition

transcripts of Anthony Scifo and Ellizzette. Scifo, who

had been the attorney representing John in the contested

guardianship proceedings, testified that he advised John

that he could not marry because he had been declared a

ward of the court. In addition, Scifo testified that he had

discussed, with both John and Ellizzette, the probability

that any marriage, if it took place, would be found invalid.

Ellizzette confirmed in her deposition that Scifo had

advised both her and John, prior to their wedding, that

their marriage might not be valid.

On September 6, 2018, Shawn petitioned the court for

an order requiring Ellizzette to submit to fingerprinting

so her identity could be established. In support, Shawn

alleged that, at her deposition, Ellizzette admitted she

had used many names yet provided no explanation for the

various name changes. In addition, when shown a copy of

the birth certificate for Lisa Ann Blaydes, who was born

in Illinois and not Lyon, France, Ellizzette claimed she

“didn’t know” if it was her birth certificate but produced

no birth certificate for “Ellizzette Duvall Minnicelli.”

13a

Appendix A

After a hearing on September 10, 2018, the court

denied Ellizzette’s motion for judgment on the pleadings.

Also, following a hearing on September 18, 2018, the

court ruled that Ellizzette would be required to submit to

fingerprinting if she continued to pursue her petition to be

named administrator of the estate. The court held that, if

Ellizzette amended her petition to seek the appointment

of someone other than herself as administrator, she need

not submit to fingerprinting.

On October 2, 2018, Shawn filed a motion asking

the court to take judicial notice of John and Ellizzette’s

certificate of marriage, marriage license, and application

for marriage license. In these documents, Ellizzette

attested that her name was Ellizzette Duvall Minnicelli,

that her last name on her birth certificate was “Duvall,”

that she was born in Lyon, France, that she had one

prior marriage, and that her occupation was “physician

scientist.” On November 6, 2018, Ellizzette objected to

Shawn’s motion, stating that the documents contained

“assertions of purported fact which may be subject to

reasonable dispute at trial.”

Prior to a ruling on that motion, on October 22, 2018,

Ellizzette moved the court to enter “a Rule 218 Scheduling

Order to set deadlines for discovery and dispositive motion

deadlines, as well as a trial date on [her] Petition for

Letters, to bring the central controversy in this matter

to a final adjudication.” Shawn responded on October 24,

stating, “by Ellizzette filing her Motion for Supreme Court

Rule 218 Scheduling Order, she has made clear that she

wishes to pursue her petition to have herself appointed

14a

Appendix A

as administrator pursuant to the Probate Act of 1975. 755

ILCS 5/28-1, et seq.” As a result, Shawn moved the court

to require Ellizzette to submit to fingerprinting.

On November 30, 2018, the court, inter alia, granted

Shawn’s motion to take judicial notice of the marriage

documents over Ellizzette’s objection and set a case

management schedule, requiring that all discovery be

completed by September 30, 2019. The court also ordered

Ellizzette to present herself at the Kane County Sheriff’s

Office within 60 days for fingerprinting. The record

shows that, after three attempts to obtain Ellizzette’s

fingerprints, no usable prints were ever acquired.

Subsequently, on January 29, 2019, the court ruled that

certain answers by Ellizzette to Shawn’s request to admit

facts would be deemed admitted without qualification

and ordered Ellizzette to amend other answers found to

be nonresponsive. The court also ordered Ellizzette to

turn over John’s iPhone and laptop to the estate within

14 days and issued a protective order to preserve the

electronically stored information (ESI) on these devices.

The court granted Ellizzette’s combined motion for

subpoenas to obtain John’s medical records and a qualified

order pursuant to the Health Insurance Portability and

Accountability Act of 1996 (Pub. L. No. 104-191, 110 Stat.

1936 (1996) (codified as amended in scattered sections of

Titles 18, 26, 29, and 42 of the United States Code)), subject

to in camera review by the court.

On February 11, 2019, Ellizzette’s counsel moved for

leave to withdraw as Ellizzette’s counsel, which the court

15a

Appendix A

granted on February 15, 2019. Ellizzette was allowed 21

days to find a new attorney and substitute appearance.

In the interim, on February 13, 2019, Shawn filed a

request that the court take judicial notice of a Doximity3

file on an account for Ellizzette Duvall, who represented

herself as an academic neurosurgeon affiliated with

New York-Presbyterian Hospital’s department of

neurosurgery. The file contained information regarding

an investigation Doximity conducted into Ellizzette’s

account. According to Doximity’s findings, Ellizzette’s

professional profile could not be substantiated and,

therefore, her account was deemed a fake. Notably, in

response to a request from Doximity for verification of

her credentials, Ellizzette provided a picture identification

card for “Ellizzette Duvall” from two medical institutions

in New York. Ellizzette’s only other response was an

assertion that Shawn had instigated the inquiry into her

professional credentials and that she had sought an order

of protection from Shawn on November 17, 2017, in Edgar

County, Illinois. Ellizzette attached an unsigned copy

of an emergency order of protection against Shawn on

behalf of Ellizzette and John. In the petition for an order

of protection, Ellizzette alleged that Shawn took marital

property from certain storage units and sold it; harassed

her and John by contacting businesses, hospitals, and

their colleagues; and “assumed John’s identity” to change

passwords, redirect John’s mail, and stop bank cards.

Ellizzette also contended that Shawn physically abused

3. Doximity is an online networking service for medical

professionals.

16a

Appendix A

and stalked her and John and that Shawn made repeated

calls to the police for “health checks” on John, alleging that

John was an alcoholic and dangerous. It appears from the

record that on March 19, 2019, the court deferred ruling

on this motion to take judicial notice. However, there is

no further discussion or ruling on the motion found in

the record.

On March 18, 2019, Ellizzette filed her appearance

pro se, along with a motion to extend time for filing

responses, which the court granted. Then, on April 10,

2019, Ellizzette’s previous counsel filed a new appearance

on her behalf, only to file another motion to withdraw five

months later, on September 12, 2019. The court granted

the second motion to withdraw on September 18, 2019.

In August 2019, Shawn moved the court to take

judicial notice of court records indicating that, on

November 26, 2001, felony charges were brought against

Ellizzette Duvall, also known as Lisa Blaydes, in New

York state for falsifying business records, unauthorized

use of professional title, and forgery, based on Ellizzette

misrepresenting herself as a doctor between September

12 and September 15, 2001, in the New York State Army

National Guard Volunteer Registration Log. Ellizzette

pled guilty to misdemeanor forgery and was sentenced

to three years’ probation. At a hearing on October 23,

2019, the court granted the motion, taking judicial notice

of the New York state court documents, subject to their

relevance at trial.

17a

Appendix A

On October 16, 2019, Shawn filed a motion in limine

to bar Ellizzette from testifying regarding the existence

of a marital relationship, alleging that such testimony was

barred by the Dead Man’s Act (735 ILCS 5/8-201 (West

2016)). On October 23, 2019, Ellizzette filed an appearance

on her own behalf, and a week later, on October 30, 2019,

Ellizzette filed a response to Shawn’s motion in limine,

arguing that the plain text of section 8-201(d) of the Dead

Man’s Act provides that “[n]o person shall be barred

from testifying as to any fact relating to the heirship of

a decedent.” Id. § 8-201(d). Ellizzette also attached an

affidavit by Raymond Bement, who was named on the

marriage certificate as the officiant. On November 4, 2019,

Shawn filed a reply to Ellizzette’s response along with a

motion to strike Bement’s affidavit, contending that the

affidavit was in direct conflict with testimony Bement gave

at his deposition. On November 13, 2019, the trial court

entered an order granting Shawn’s motion in limine and

barring Ellizzette from testifying at trial.

On the day of trial, Monday, November 18, 2019,

Ellizzette appeared in court and requested a continuance.

She sought to postpone the trial to “December 3, 2019,

or later,” explaining that on the previous Friday she had

unsuccessfully attempted to contact the judge’s chambers.

She stated that she spoke with someone from the clerk’s

office who advised her that she would have to come to

court to request a continuance. Accordingly, Ellizzette

submitted her motion for a continuance in court.

In the motion, Ellizzette alleged that she had good

cause for requesting an extension, because (1) her father

18a

Appendix A

had been hospitalized in Arizona and declared “end of life,”

(2) her mother, whom she categorized as a “key witness,”

would be unable to attend the trial due to the status of

Ellizzette’s father, (3) Ellizzette’s attorneys withdrew

from the case due to the “high outstanding balance” of

attorney fees that Ellizzette was unable to pay because

she was involved in an automobile accident that resulted

in significant out-of-pocket medical expenses but that she

now had resolved, hoping they would be allowed to reenter

the case, and (4) she was unable to subpoena two “key

witnesses.” Shawn objected to the motion, arguing that

it had been a year since the matter was first set for trial.

In response to questioning by the court, Ellizzette

explained that the two “key witnesses” were both

paraplegics who lived in Colorado and, due to their

disability, could not be required to travel to Illinois to

testify. Ellizzette did not make an offer of proof as to what

their testimony would be but admitted that they were not

witnesses to the marriage ceremony.

The court denied Ellizzette’s motion for a continuance,

finding inter alia that Ellizzette failed to show that the

unavailable witnesses’ testimony would be material to

the issues in the case. The bench trial commenced with

Ellizzette proceeding pro se. Prior to hearing evidence, the

court asked for clarification on what issues were currently

before it. Shawn’s attorney responded that Ellizzette had

abandoned her petition for letters of administration and

the only matter before the court was Ellizzette’s claim that

she was John’s surviving spouse and sole heir. Ellizzette

made no assertions to the contrary, and the trial then

proceeded on the matter of heirship.

19a

Appendix A

Ellizzette called three witnesses. The first witness

was Diane Boyer, who testified that she had known John

and Ellizzette for about three years but that her main

interaction with John occurred in November or December

of 2017, when John lived with her for two weeks due to a

protective order issued by the guardianship court that

physically separated John and Ellizzette temporarily.

Boyer testified that, on one occasion, she went to a court

hearing in the contested guardianship case to verify that

John and Ellizzette had recently married and, in her

opinion, should not be kept apart. However, Boyer also

testified that she did not witness the marriage ceremony,

though she was involved in preparations for the marriage

and took John and Ellizzette out to a “wedding dinner”

three or four days after the wedding to celebrate.

Ellizzette next called Dr. Visar Belegu, who testified

that he was a scientist residing in Baltimore, Maryland.

Belegu also testified that he first met Ellizzette in 2004,

when he initially began working with John in St. Louis. It

is unclear how long his initial affiliation with John lasted;

however, Belegu testified that he phoned or texted John

at least once each week in 2017 and that he traveled with

John in the summer of 2017, because they were working

on a project together. Belegu also testified that a research

paper he and John had been working on “for quite a while”

was submitted and accepted for publication in a major

scientific journal sometime at the end of 2017 or early

2018, and it was Belegu’s understanding that John had

accepted a position that was to begin in 2018, working “on

an international level.”

20a

Appendix A

Belegu testified that he did not attend John and

Ellizzette’s wedding but knew they were engaged and

learned, on September 11, 2017, that they married. In

response to questions by Ellizzette, Belegu testified that

he was aware that John had been involved in guardianship

proceedings in July 2017. On cross-examination Belegu

testified that he did not know the exact date that the

guardianship order was entered but believed it was

sometime in July 2017. Belegu also admitted that he

never attended any of the guardianship proceedings and

did not know the contents of any reports prepared by the

examining physicians, though he knew that John was upset

about what the doctors said about him.

Ellizzette’s final witness was Raymond C. Bement. On

direct examination, Bement testified that he first met John

and Ellizzette (whom he knew as Lisa) when they were

all in college together in 1982 and was aware that she and

John had a relationship in the mid-1980s. Bement further

testified that he reconnected with Ellizzette in 2015, but he

was not sure whether she was in a relationship with John

at that time. In 2017, he learned that John and Ellizzette

were engaged when John told him. He then helped them

prepare for the marriage ceremony, which he officiated.

Bement further testified that there were actually two

wedding ceremonies. He said he performed the “legal

ceremony” on July 11, 2017, in John and Ellizzette’s Paris,

Illinois, home and then signed the marriage certificate at

their kitchen table. After that ceremony, the three of them

went to Allerton Park in Monticello (Piatt County) for

the “secular” portion of the ceremony. It is unclear what

21a

Appendix A

Bement meant by “secular ceremony.” During Ellizzette’s

questioning of Bement, she referred to the ceremony in

Paris as the “interfaith” ceremony and the ceremony in

Monticello as the “religious” ceremony. Neither of the

ceremonies was described in detail, and there were no

witnesses at either location.

On cross-examination, it was established that Bement

was employed as a licensed clinical social worker and that

he had very little contact with either John or Ellizzette

from 2000 to 2016. There was some suggestion that

Bement may have known John in his professional capacity

while John was receiving mental health services, but that

was not definitively established.

Bement was questioned extensively about the affidavit

he provided to Ellizzette, which was notarized in New

York. Initially, Bement refused to say why the affidavit

was notarized in New York, but he later claimed he had

traveled to New York on a “date” and took the affidavit

with him. He did not explain how he found a notary in New

York, nor could he explain why the notary’s certification

was dated 2026.

Bement further testified on cross-examination that

he offered to be the officiant for John and Ellizzette’s

marriage when he learned, sometime in 2017, that John

and Ellizzette were engaged. To that end, he obtained an

online certification from Universal Life Church Ministry,

a process that took him about 5 to 10 minutes. When asked

about the marriage certificate he had signed, Bement

admitted that he did not realize it listed Ellizzette’s name

22a

Appendix A

as Ellizzette Duval Minnicelli and admitted he never

knew her by that name. When asked if he was aware

that Ellizzette claimed to be born in Lyon, France, he

responded, “That’s news to me.”

During redirect examination, Ellizzette attempted

to clarify Bement’s testimony; however, nearly every

question she asked was objected to on grounds of

“leading,” “not relevant,” or “beyond the scope.” In fact,

throughout the trial, Ellizzette, as a self-represented

litigant, failed to frame her questions appropriately,

opening her up to constant objections from opposing

counsel. Though the court tried to assist her by explaining

its rulings, answering her questions, and instructing her

to “rephrase,” Ellizzette would typically engage in a long

explanation, telling the court what she was “trying to

establish.”

When Ellizzette completed her questioning of Bement,

she informed the court that she had no further witnesses.

Shawn then moved for a directed finding, which the trial

court granted. In so ruling, the court stated that the

issue was the “validity of the marriage, the ceremony,

the contract, and whether such a marriage—if it was

conducted according to Illinois law or could have been

conducted under the Probate Act when it happened—if

it happened.” The court then stated that the minimum

relevant evidence necessary to establish a prima facie

case of a valid marriage was “a valid application for a

marriage license, a ceremony performed in Edgar County

and witnessed by two witnesses.” The court then concluded

that, as a matter of law, Ellizzette did not present a prima

23a

Appendix A

facie case of a valid marriage. Specifically, the court held

that the marriage was not properly witnessed nor licensed

and that no best-interest determination was made by

the probate court. The court entered an order granting

a directed finding in Shawn’s favor and included Rule

304(a) language. See Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016).

Ellizzette filed her notice of appeal on December 18, 2019.

On appeal, Ellizzette raised five issues. First, she

argued that the trial court erred when it appointed Shawn

as the administrator of decedent’s estate because she was

not provided with statutorily required notice. Second,

she maintained that the trial court erred in denying her

motion for a continuance on the day of trial. Third, she

argued that the trial court erred in denying her motion for

judgment on the pleadings. Fourth, she claimed that the

trial court committed reversible error in barring her from

testifying regarding her marriage and heirship. Finally,

she contended that the trial court erred in granting

Shawn’s motion for a directed finding.

The appellate court affirmed in part, reversed in

part, and remanded for further proceedings. 2020 IL

App (2d) 191113-U. In sum, the appellate court affirmed

the trial court’s denial of Ellizzette’s motion to vacate the

order granting Shawn letters of administration, affirmed

the denial of Ellizzette’s motion for continuance, and

affirmed the denial of Ellizzette’s motion for judgment

on the pleadings. However, the appellate court reversed

the trial court’s ruling on Shawn’s motion in limine that

barred Ellizzette from testifying and reversed the grant

of a directed finding in favor of Shawn. Id. ¶ 106.

24a

Appendix A

The matter was remanded for further proceedings,

and Shawn filed a petition for leave to appeal in this court,

which we granted.

ANALYSIS

On appeal to this court, Shawn, in his capacity as

administrator of John’s estate, raises three issues. First,

he contends that the appellate court erred when it reversed

the circuit court’s grant of a directed finding on the ground

that a best interest determination was not required prior to

John marrying Ellizzette. Second, Shawn argues that the

appellate court erred when it reversed the circuit court’s

grant of a directed finding, because Ellizzette failed to

establish her actual identity. And last, Shawn contends

that the appellate court erred when it found that the Dead

Man’s Act did not bar Ellizzette from testifying and that

she was substantially prejudiced by her inability to testify.

In her reply brief, Ellizzette seeks cross-relief,

arguing that the trial court erred when it granted Shawn’s

petition for letters of administration and declaration

of heirship and that the appellate court erred when it

declined to review those orders.

STANDARD OF REVIEW

The parties agree that the trial court’s grant of a

directed finding, based on its determination that Ellizzette

failed to present a prima facie case on the validity of the

marriage, is a matter to be reviewed by this court de

novo. See People ex rel. Sherman v. Cryns, 203 Ill. 2d

264, 275, 786 N.E.2d 139, 271 Ill. Dec. 881 (2003). As to

25a

Appendix A

the trial court’s ruling on the motion in limine based on

its finding that the Dead Man’s Act barred Ellizzette from

testifying, Shawn contends that our review is for an abuse

of discretion (People v. $5,608 United States Currency,

359 Ill. App. 3d 891, 835 N.E.2d 920, 296 Ill. Dec. 567

(2005)) and that the ruling should not be reversed unless

the error was substantially prejudicial and affected the

trial’s outcome (In re Estate of Goffinet, 318 Ill. App. 3d

152, 156, 742 N.E.2d 874, 252 Ill. Dec. 336 (2001)).

While acknowledging that a ruling on a motion in

limine is generally reviewed for an abuse of discretion,

Ellizzette argues that the issue presented here concerns

the trial court’s interpretation of the Dead Man’s Act,

which is a question of law subject to de novo review.

Having considered the positions of both parties, we

find that the applicable standard for our review of the

matters presented in this appeal is de novo.

I. Legal Capacity to Marry—Necessity

of a Best Interest Hearing

In his first issue, Shawn argues that the appellate

court erred when it rejected the trial court’s finding that,

pursuant to section 11a-17(a-10) of the Probate Act (755

ILCS 5/11a-17(a-10) (West 2016)), John, as a ward subject

to plenary guardianship, lacked the capacity to marry

without first seeking a judicial finding that the marriage

was in John’s best interest. In addressing this issue, we

look first to the provisions of the Probate Act concerning

wards who have been found to be disabled and in need of

plenary guardianship.

26a

Appendix A

Article XIa of the Probate Act (id. art. XIa) sets forth

the rules and requirements governing the appointment of

guardians for adults with disabilities, as well as the duties

of the guardian so appointed. In section 11a-2, the Probate

Act defines a “‘[p]erson with a disability’” as follows:

“‘Person with a disability’ means a person

18 years or older who (a) because of mental

deterioration or physical incapacity is not fully

able to manage his person or estate, or (b) is a

person with mental illness or a person with a

developmental disability and who because of his

mental illness or developmental disability is not

fully able to manage his person or estate, or (c)

because of gambling, idleness, debauchery or

excessive use of intoxicants or drugs, so spends

or wastes his estate as to expose himself or his

family to want or suffering, or (d) is diagnosed

with fetal alcohol syndrome or fetal alcohol

effects.” Id. § 11a-2.

A guardian may be appointed for an adult with

disabilities pursuant to section 11a-3 of the Probate Act,

which at that time stated, in pertinent part:

“(a) Upon the filing of a petition by a reputable

person ***, the court may adjudge a person to

be a person with a disability, but only if it has

been demonstrated by clear and convincing

evidence that the person is a person with a

disability as defined in Section 11a-2. If the

court adjudges a person to be a person with a

27a

Appendix A

disability, the court may appoint (1) a guardian

of his person, if it has been demonstrated by

clear and convincing evidence that because of

his disability he lacks sufficient understanding

or capacity to make or communicate responsible

decisions concerning the care of his person,

or (2) a guardian of his estate, if it has been

demonstrated by clear and convincing evidence

that because of his disability he is unable to

manage his estate or financial affairs, or (3) a

guardian of his person and of his estate.

(b) Guardianship shall be utilized only as

is necessary to promote the wellbeing of

the person with a disability, to protect him

from neglect, exploitation, or abuse, and to

encourage development of his maximum selfreliance and independence. Guardianship shall

be ordered only to the extent necessitated by

the individual’s actual mental, physical, and

adaptive limitations.” Id. § 11a-3.

In the version of section 11a-17 in effect at the time,

the Probate Act described the duties of a guardian, stating

in pertinent part:

“(a) To the extent ordered by the court and

under the direction of the court, the guardian

of the person shall have custody of the ward

***. ***

28a

Appendix A

(a-5) If the ward filed a petition for dissolution

of marriage under the Illinois Marriage and

Dissolution of Marriage Act before the ward

was adjudicated a person with a disability

under this Article, the guardian of the ward’s

person and estate may maintain that action for

dissolution of marriage on behalf of the ward.

Upon petition by the guardian of the ward’s

person or estate, the court may authorize and

direct a guardian of the ward’s person or estate

to file a petition for dissolution of marriage or to

file a petition for legal separation or declaration

of invalidity of marriage under the Illinois

Marriage and Dissolution of Marriage Act on

behalf of the ward if the court finds by clear

and convincing evidence that the relief sought

is in the ward’s best interests. In making its

determination, the court shall consider the

standards set forth in subsection (e) of this

Section.

(a-10) Upon petition by the guardian of the

ward’s person or estate, the court may authorize

and direct a guardian of the ward’s person or

estate to consent, on behalf of the ward, to the

ward’s marriage pursuant to Part II of the

Illinois Marriage and Dissolution of Marriage

Act if the court finds by clear and convincing

evidence that the marriage is in the ward’s

best interests. In making its determination, the

court shall consider the standards set forth in

subsection (e) of this Section. Upon presentation

29a

Appendix A

of a court order authorizing and directing a

guardian of the ward’s person and estate to

consent to the ward’s marriage, the county

clerk shall accept the guardian’s application,

appearance, and signature on behalf of the

ward for purposes of issuing a license to marry

under Section 203 of the Illinois Marriage and

Dissolution of Marriage Act.

***

(e) Decisions made by a guardian on behalf

of a ward shall be made in accordance with

the following standards for decision making.

Decisions made by a guardian on behalf of a

ward may be made by conforming as closely as

possible to what the ward, if competent, would

have done or intended under the circumstances,

taking into account evidence that includes,

but is not limited to, the ward’s personal,

philosophical, religious and moral beliefs, and

ethical values relative to the decision to be made

by the guardian. Where possible, the guardian

shall determine how the ward would have

made a decision based on the ward’s previously

expressed preferences, and make decisions in

accordance with preferences of the ward. If

the ward’s wishes are unknown and remain

unknown after reasonable efforts to discern

them, the decision shall be made on the basis

of the ward’s best interests as determined by the

guardian.” (Emphases added.) Id. § 11a-17(a),

(a-5), (a-10), (e).

30a

Appendix A

Reading these provisions as a whole and giving them

consistent, harmonious, and sensible effect, we conclude

that, under the Probate Act, a ward who wishes to

enter into a marriage may do so only with the consent

of his guardian. Pursuant to section 11a-17(a-10) (id.

§ 11a-17(a-10)), for a guardian to obtain the ability to

consent, he must file a petition with the court. If the court

finds by clear and convincing evidence that the marriage

is in the ward’s best interest, the court may then authorize

and direct the guardian to consent to the ward’s marriage.

When making its best interest determination, the court

must follow the standards set forth in subsection (e),

which means that the court must rule in conformity with

the ward’s preferences unless the court believes that the

marriage would result in substantial harm to the ward’s

welfare or personal or financial interests.

We believe this interpretation of the above-cited

provisions of the Probate Act is in keeping with our

decision in Karbin v. Karbin, 2012 IL 112815, ¶ 45, 977

N.E.2d 154, 364 Ill. Dec. 665, wherein we held that it is

the policy of this state that, once a person is found to be

“disabled” under our Probate Act, he or she is viewed as

“‘“a favored person in the eyes of the law” and is entitled

to vigilant protection’” (quoting In re Mark W., 228 Ill.

2d 365, 374-75, 888 N.E.2d 15, 320 Ill. Dec. 798 (2008),

quoting In re Estate of Wellman, 174 Ill. 2d 335, 348,

673 N.E.2d 272, 220 Ill. Dec. 360 (1996)). This policy is

fulfilled through the creation of a guardianship, which will

“promote the well-being of the person with a disability,

[and] to protect him from neglect, exploitation, or abuse.”

755 ILCS 5/11a-3(b) (West 2016).

31a

Appendix A

Ellizzette argues, and the appellate court held, that

the plain language of the Probate Act does not require a

best interest hearing before a ward may marry. Moreover,

Ellizzette contends that the validity of a marriage is

governed by section 301 of the Marriage Act, which

provides:

“The court shall enter its judgment declaring

the invalidity of a marriage (formerly known

as annulment) entered into under the following

circumstances:

(1) a party lacked capacity to consent

to the marriage at the time the

marriage was solemnized, either

because of mental incapacity or

infirmity or because of the influence of

alcohol, drugs or other incapacitating

substances, or a party was induced

to enter into a marriage by force

or duress or by fraud involving the

essentials of marriage[.]” 750 ILCS

5/301(1) (West 2016).

Further, Ellizzette contends that this court has

consistently held that “the appointment of a guardian of

a person is not sufficient, in and of itself, to show that the

person was incompetent to have consented to marriage,”

citing Pape v. Byrd, 145 Ill. 2d 13, 582 N.E.2d 164, 163

Ill. Dec. 898 (1991). We reject Ellizzette’s arguments and

find her reliance on Pape to be misplaced.

32a

Appendix A

In Pape, we held:

“We agree *** that the appointment of a

guardian of a person is not sufficient, in and of

itself, to show that the person was incompetent

to have consented to a marriage. In this regard,

we note that section 11a-3 of the Probate Act

of 1975 provides, inter alia, that a court may

adjudge a person disabled and may appoint

a guardian of his person if, because of his

disability, he lacks sufficient understanding or

capacity to make or communicate responsible

decisions concerning the care of his person.

In contrast, section 301 of the Marriage Act

provides that a declaration of invalidity of

a marriage may be obtained where a party,

inter alia, lacked the capacity to consent to

the marriage because of, inter alia, mental

incapacity or infirmity. (Ill. Rev. Stat. 1989, ch.

40, par. 301.) Moreover, a person lacks capacity

to consent to a marriage where he is unable

to understand the nature, effect, duties and

obligations of marriage. (Larson v. Larson

(1963), 42 Ill. App. 2d 467, 473, 192 N.E.2d

594.) It is thus clear that the test of incapacity

in each of the foregoing provisions is limited

and does not speak to the incapacity required

for purposes of the other provision. Moreover,

Illinois case law recognizes the difference

between the types of incapacity involved in each

provision.” Id. at 21-22.

33a

Appendix A

As recognized in Pape, the Probate Act identifies

various types of disabilities that could give rise to the need

for the appointment of a guardian, who has control over

the disabled adult’s person and estate. Accordingly, if a

person is adjudged a disabled person in need of a guardian

under the Probate Act, that person is limited in his ability

to enter into a marriage, i.e., such person must obtain

the guardian’s consent, which is given upon the court’s

authorization and direction after a determination that the

marriage is in the ward’s best interest. Under the Probate

Act, the lack of capacity to enter into a marriage is based

on the ward’s failure to comply with the provisions for

obtaining consent, not because the ward lacked the mental

competence to understand the nature, effect, duties, and

obligations of marriage.

Pape is factually distinguishable from the case at bar.

In Pape, Jean A. Pape, as plenary guardian of Simpson

Driskell Jr., a disabled adult, filed a petition to declare

invalid the purported marriage between Driskell and

Wilma Louise Byrd. Id. at 15-16. Byrd then filed a petition

in probate court to have Pape removed as Driskell’s

guardian. Id. at 16. Pape’s petition to declare the marriage

void was found to be untimely. Id. at 25. However, Pape

was permitted to challenge the validity of the marriage in

response to Byrd’s petition to remove Pape as guardian.

Id. at 28-29. After hearing the evidence, the trial court

held that the marriage was invalid because Driskell lacked

the mental capacity to enter into the marriage and that

decision was affirmed on appeal. Id. at 19.

34a

Appendix A

The appellate court noted that medical evidence

showed that Driskell was diagnosed with “organic brain

syndrome,” schizophrenia, and Alzheimer’s disease. In

re Driskell, 197 Ill. App. 3d 836, 845, 555 N.E.2d 428,

144 Ill. Dec. 309 (1990). In addition, Driskell, who had

numerous physical impairments, was found to have an

IQ of 38 and was described as being “unable to know

what he was doing.” Id. Several nurses who had attended

Driskell at hospitals or nursing homes around the time of

the marriage testified that Driskell was difficult to work

with, unable to dress or clean himself, and often required

restraint. Id. Under these circumstances, the court held

that the applicable test to determine whether Driskell

was competent to marry was whether he had the ability

to understand the nature, effect, duties, and obligations of

marriage. The court then found Driskell was not competent

to enter into the marriage. Id. at 846. Significantly, Pape

was appointed Driskell’s guardian after the purported

marriage ceremony took place. See Pape, 145 Ill. 2d at

17. Consequently, the question of whether consent of the

guardian and a best interest hearing were required prior

to the marriage was not at issue.

Larson v. Larson, 42 Ill. App. 2d 467, 192 N.E.2d 594

(1963), cited by Pape regarding the test for determining

competency, is also factually distinguishable. In Larson,

the husband, Sydney, filed a petition in 1956 to annul his

marriage to Myrtle, which took place six years earlier

in 1950. Id. at 468. Sydney contended that the marriage

was invalid because Myrtle was insane at the time of

the marriage and, therefore, incapable of contracting

marriage pursuant to section 2 of the Marriage Act as it

existed in the 1950s (Ill. Rev. Stat. 1953, ch. 89, ¶ 2).

35a

Appendix A

The Larson court ruled that, while

“there is no clear dividing line between

competency and incompetency, and each case

must be judged by its own peculiar facts; the

parties must have sufficient mental capacity

to enter into the status, but proof of lack of

mental capacity must be clear and definite; if

the party possesses sufficient mental capacity

to understand the nature, effect, duties, and

obligations of the marriage contract into which

he or she is entering, the marriage contract is

binding, as long as they are otherwise legally

competent to enter into the relation.” Larson,

42 Ill. App. 2d at 473.

In Larson, no guardian was involved. Prior to the

marriage, Myrtle was not determined to be a disabled

adult under the Probate Act, and she was never appointed

a plenary guardian to oversee her person or estate.

Based on the above, we reject Ellizzette’s argument

that John’s competency to marry is governed by section

301 of the Marriage Act and that, to prove the validity

of the marriage it was only necessary to show that John

understood the nature, effect, duties, and obligations of

the marriage contract into which he entered.

In the case at bar, Ellizzette brought suit, seeking to

be named the sole heir of John’s estate as John’s surviving

spouse. Therefore, it was Ellizzette’s burden to prove

her status as heir by proving that she and John entered

36a

Appendix A

into a valid marriage. The validity of the marriage was

challenged by Shawn, as administrator of John’s estate,

based on the contention that John was a ward under the

plenary guardianship of Shawn and, as such, John lacked

the capacity to enter into a valid marriage without the

authorization and consent of his guardian granted by the

court after a finding that the marriage was in John’s best

interest. We agree.

Under the facts of this case, we find that John’s capacity

to marry is governed by the Probate Act. Applying our

interpretation of the provisions of the Probate Act, we

further find that, for John to have the legal capacity to

enter into a valid marriage, he had to obtain the consent

of his guardian, Shawn, given upon the authorization and

direction of the court after a best interest determination.

Thus, for Ellizzette to meet her burden of proving a valid

marriage to John, she would have to show that, prior to

the marriage, the court authorized and directed Shawn to

consent to the marriage upon a finding that the marriage

was in John’s best interest.

Turning to the record, we must review the evidence

Ellizzette presented at trial to determine whether she

met her burden of proving that her marriage to John was

valid. First, however, we must determine whether the trial

court erred when it granted Shawn’s motion in limine

and barred Ellizzette from testifying, and whether, as the

appellate court held, the trial court’s ruling substantially

prejudiced Ellizzette’s ability to present her case.

37a

Appendix A

II. The Dead Man’s Act

In this case, the trial court granted Shawn’s motion

in limine and barred Ellizzette from testifying at trial

regarding her marriage and heirship, based on its

finding that section 8-201 of the Code of Civil Procedure,

commonly referred to as the Dead Man’s Act (735 ILCS

5/8-201 (West 2016)), precluded such testimony. In so

ruling, the trial court relied on our decision in Laurence v.

Laurence, 164 Ill. 367, 45 N.E. 1071 (1896). On appeal, the

appellate court reversed the trial court’s ruling, finding,

inter alia, that Laurence is no longer good law. 2020 IL

App (2d) 191113-U, ¶ 83.

Before this court, Shawn argues that the appellate

court erred when it found that Laurence was no longer

good law. Shawn directs our attention to Illinois Rule of

Evidence 101 (eff. Jan. 6, 2015), which states: “A statutory

rule of evidence is effective unless in conflict with a rule

or a decision of the Illinois Supreme Court.” Shawn then

contends that, because the Dead Man’s Act is a statutory

rule of evidence that is “in conflict” with our decision in

Laurence, Laurence still controls. We disagree.

When Laurence was decided, the Dead Man’s Act

provided:

“No party to any civil action, suit or proceeding,

or person directly interested in the event

thereof, shall be allowed to testify therein of his

own motion or in his own behalf, by virtue of the

foregoing section, when any adverse party sues

38a

Appendix A

or defends as the *** heir *** of any deceased

person, *** unless when called as a witness by

such adverse party so suing or defending ***.”

Ill. Rev. Stat. 1895, ch. 51, ¶ 2.

Ou r decision in Laurence was based on ou r

interpretation and application of the Dead Man’s Act as

it then existed. Subsequently, however, in 1973, the Dead

Man’s Act was repealed and replaced. The successor act

now reads, in pertinent part:

“In the trial of any action in which any party sues

or defends as the representative of a deceased

person or person under a legal disability, no

adverse party or person directly interested in

the action shall be allowed to testify on his or

her own behalf to any conversation with the

deceased or person under legal disability or to

any event which took place in the presence of

the deceased or person under legal disability,

except in the following instances:

***

(d) No person shall be barred from testifying

as to any fact relating to the heirship of a

decedent.” 735 ILCS 5/8-201(d) (West 2016).

No conflict exists between this statutory rule of

evidence and our decision in Laurence because we were

not interpreting this new language of the Dead Man’s Act

when we decided Laurence. In In re Estate of Babcock,

39a

Appendix A

105 Ill. 2d 267, 272-73, 473 N.E.2d 1316, 85 Ill. Dec. 511

(1985), we applied the successor act and observed that

the legislature had made it “less restrictive” by adding

language that “no longer bar[red] all testimony by

interested persons.” See also In re Estate of Bailey, 97 Ill.

App. 3d 781, 784, 423 N.E.2d 488, 53 Ill. Dec. 104 (1981)

(section 2(4) of the Dead Man’s Act (Ill. Rev. Stat. 1979, ch.

51, ¶ 2(4)) was “intended to change the rule of Laurence”);

In re Estate of Hutchins, 120 Ill. App. 3d 1084, 458 N.E.2d

1356, 76 Ill. Dec. 556 (1984). Based on the above, we are

compelled to agree with the appellate court below that

the trial court erred when it granted Shawn’s motion in

limine and barred Ellizzette from testifying.

Although we find that the trial court erred, our

inquiry is not over. Shawn argues here, as he did in the

appellate court, that even if it was error for the trial

court to have barred Ellizzette from testifying, the error

was not properly preserved for review. Shawn contends

that an adequate offer of proof, which informs the trial

court, opposing counsel, and the reviewing court of the

exact nature and substance of the evidence sought to be

introduced, is necessary to preserve a trial court’s alleged

error in excluding evidence. Colella v. JMS Trucking Co.

of Illinois, 403 Ill. App. 3d 82, 93, 932 N.E.2d 1163, 342

Ill. Dec. 702 (2010); see also Snelson v. Kamm, 204 Ill. 2d

1, 23, 787 N.E.2d 796, 2003 Ill. LEXIS 456, 272 Ill. Dec.

610 (2003). Because Ellizzette failed to make any offer of

proof, Shawn maintains that she failed to preserve for

review the trial court’s error in granting the motion in

limine that barred her from testifying.

40a

Appendix A

The appellate court, while acknowledging that no

offer of proof was made by Ellizzette, held that an offer of

proof is not required where it was apparent that the trial

court clearly understood the nature and character of the

evidence sought to be introduced. See Dillon v. Evanston

Hospital, 199 Ill. 2d 483, 495, 771 N.E.2d 357, 264 Ill. Dec.

653 (2002). The court then rejected Shawn’s claim that the

trial court’s error was not preserved for review, stating,

“[g]iven this record, *** the trial court understood that

Ellizzette would testify as to her purported marriage to

decedent.” 2020 IL App (2d) 191113-U, ¶ 85. The court

then went on to conclude that Ellizzette was substantially

prejudiced by her inability to testify and, therefore,

remand for a new trial was required. Id. ¶ 86. We disagree.

It is certainly true that an offer of proof need not

be made if it is clear that the trial court understood the

nature and character of the evidence that would have been

offered had Ellizzette been allowed to testify. However,

we do not find it clear from the record in this case

what Ellizzette’s exact testimony “as to her purported

marriage to decedent” would be. Moreover, the issue in

this case was not simply whether a marriage ceremony

took place but whether the marriage was legally valid.

Shawn alleged, and we have now determined, that the

validity of the marriage and John’s capacity to enter

into the marriage are dependent upon proof that a court

determined, based on clear and convincing evidence, that

the marriage was in John’s best interest. We find nothing

to indicate that Ellizzette intended to present testimony

to dispute Shawn’s allegations, nor does it appear that

Ellizzette could have presented testimony that would have

41a

Appendix A

established the validity of the marriage. Thus, we find

that, not only did Ellizzette fail to preserve the error by

failing to make an offer of proof, but any testimony that

Ellizzette might have offered could not have established

John’s capacity to enter into a valid marriage.

Ellizzette was aware at the time the marriage took

place that, as a result of guardianship proceedings, John

was under the plenary guardianship of Shawn and, for that

reason, the marriage might not be valid. It is also clear

from the record that no best interest finding was ever

sought or made. In light of our holding in this opinion that a

disabled person lacks the capacity to marry unless a court

authorizes and directs that person’s guardian to consent

to the marriage after a best interest finding, Ellizzette

could not have provided any testimony that would have

been sufficient to prove the validity of the marriage.

Consequently, Ellizzette could not have been prejudiced

by her inability to testify regarding the marriage.

Thus, we reverse the appellate court’s finding that

Ellizzette was substantially prejudiced by her inability

to testify. The error occasioned by the trial court’s ruling

that barred Ellizzette from testifying was harmless.

Accordingly, remand for a new trial is not necessary.

III. Directed Finding

As noted above, the trial court granted Shawn’s

motion for a directed finding after ruling that Ellizzette

failed to present a prima facia case regarding the validity

of her marriage to John. The trial court so ruled based,

42a

Appendix A

in part, on the ground that, pursuant to the Probate Act,

a best interest hearing was required before John could

marry.

The appellate court reversed the directed finding in

Shawn’s favor, finding inter alia that a prima facie case

had been presented. The appellate court concluded that

the trial court erred in granting a directed verdict in favor

of Shawn on the grounds it set forth. Id. ¶ 90. The appellate

court found that Ellizzette had presented some evidence

that a ceremony was performed in Edgar County through

Bement’s testimony and that the trial court erred when it

held that section 11a-17(a-10) of the Probate Act required

a prior best interest hearing or the court’s consent before

John could validly marry. Id. ¶ 102.

Because we have found that a best interest hearing

was required before John could validly marry, we reverse

the appellate court’s holding and affirm the trial court’s

grant of a directed verdict in favor of Shawn.

CONCLUSION

Based on our findings above, we reverse the appellate

court judgment and affirm the circuit court’s grant

of a directed finding in favor of Shawn McDonald, as

representative of the estate of John W. McDonald III.

Appellate court judgment reversed.

Circuit court judgment affirmed.

43a

Appendix A

JUSTICE THEIS, concurring in part and dissenting

in part:

In this heirship proceeding, we are tasked with

reviewing the circuit court’s order granting Shawn

McDonald’s motion for a directed finding because

Ellizzette McDonald failed to present a prima facie

case that her marriage to John McDonald was valid. The

majority holds that she failed to do so because the lack of

a judicial determination that the marriage was in John’s

best interest rendered the marriage void under section

11a-17(a-10) of the Probate Act of 1975 (Probate Act) (755

ILCS 5/11a-17(a-10) (West 2016)). I disagree with that

holding because it conflicts with the plain language of

section 11a-17(a-10) and is in contravention of the Illinois

Marriage and Dissolution of Marriage Act (Marriage Act)

(750 ILCS 5/101 et seq. (West 2016)). Additionally, while

I agree with the majority’s holding that the circuit court

erred in denying Ellizzette the right to testify regarding

the existence of her marital relationship under section

8-201 of the Code of Civil Procedure (735 ILCS 5/8-201

(West 2016)), I disagree with their conclusion that she

failed to preserve the error because she did not make an

offer of proof. No offer of proof was necessary because

it was clear that she would be testifying regarding the

circumstances surrounding her purported marriage. For

these reasons, I concur in part and dissent in part.

Before addressing the merits of this case, I note that

much of the majority’s extensive background discussion

concerns matters that were neither presented at trial

nor formed a basis for the circuit court’s order under

44a

Appendix A

review. See supra ¶¶ 6-51. In the process, the majority has

highlighted certain allegations against Ellizzette. To the

extent that these claims were even relevant to the issue

at trial, she did not testify or present evidence regarding

them. Although Shawn argues before this court that the

circuit court’s grant of a directed finding was proper

because Ellizzette failed to establish her actual identity,

the circuit court did not make that factual determination,

and it was not a basis for its ruling.

Rather, the facts necessary to resolve this appeal

are limited. On May 30, 2017, Shawn was appointed

John’s plenary guardian. On December 11, 2017, John

died intestate. Ellizzette subsequently filed a petition

for letters of administration, an affidavit of heirship, and

a motion for judgment on the pleadings. She asserted

that, as John’s surviving spouse, she was his sole heir

because he had no children. Prior to trial, the court

granted Shawn’s request to take judicial notice of three

certified documents: John and Ellizzette’s application for

a marriage license in Edgar County, the marriage license,

and a certificate of marriage.

In November 2019, the matter proceeded to a bench

trial on Ellizzette’s petition. The evidence centered on the

validity of her purported marriage to John on July 11, 2017.

Pursuant to the circuit court’s pretrial order, Ellizzette

was barred from testifying regarding the circumstances

of her relationship with John and the existence of any

marital relationship between them.

45a

Appendix A

Ellizzette, proceeding pro se, called three witnesses.

Diane Boyer testified regarding her involvement in the

preparations for the wedding. Dr. Visar Belegu, one of

John’s colleagues, testified that he had frequent weekly

contact with John in 2017 and thought that John and

Ellizzette were happily married. Raymond Bement,

a licensed clinical social worker, testified that he

participated in preparations for and performed a marriage

ceremony between Ellizzette and John in their home in

Edgar County on July 11, 2017. Later that day, the three

of them went to a park in Monticello, Illinois, for a second

ceremony.

At the close of Ellizzette’s case-in-chief, the circuit

court granted Shawn’s motion for a directed finding on

the validity of the marriage. The circuit court found that

Ellizzette had not made a prima facie case of a valid

marriage because (1) she presented no evidence that the

purported marriage was properly licensed, (2) there was

no evidence of two witnesses to the marriage, and (3)

there was no best-interest hearing to determine John’s

competency to marry.

The appellate court methodically rejected each of

these findings; it remanded for further proceedings

because genuine issues of fact existed as to whether

Ellizzette was decedent’s surviving spouse and sole heir.

2020 IL App (2d) 191113-U.

As a threshold matter, although Shawn was appointed

John’s plenary guardian in May 2017, this case does

not concern John’s protection under the guardianship.

46a

Appendix A

The Probate Act directs that a guardianship “shall be

utilized only as is necessary to promote the well-being of

the person with a disability, 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 2016). It is well settled that in

all instances, the guardian is to act in the ward’s “best

interests.” Id. § 11a-17(e); see also Karbin v. Karbin, 2012

IL 112815, ¶ 21, 977 N.E.2d 154, 364 Ill. Dec. 665. Under

the Probate Act, however, the guardianship ended upon

John’s death. See 755 ILCS 5/24-12 (West 2016). Thus,

rather than relating to John’s protections under the

guardianship, this case concerns the proper distribution

of John’s assets because he died intestate. Additionally,

Shawn is a party in this case not as John’s guardian but,

rather, as a potential heir along with his parents and

siblings.

The central issue in this appeal is whether the circuit

court erred in holding that Ellizzette had failed to make

a prima facie case of a valid marriage because, under

section 11a-17(a-10) of the Probate Act, a best-interest

determination is required before an individual subject to

a plenary guardianship is permitted to marry.

Our framework is a familiar one. The fundamental

rule of statutory interpretation is to ascertain and give

effect to the intent of the legislature. Nowak v. City of

Country Club Hills, 2011 IL 111838, ¶ 11, 958 N.E.2d 1021,

354 Ill. Dec. 825. The most reliable indicator of that intent

is the language of the statute itself. Id. If the statutory

language is clear and unambiguous, it must be applied

47a

Appendix A

as written, without resorting to further aids of statutory

interpretation. Id. A court may not depart from the

plain language of the statute and read into it exceptions,

limitations, or conditions that are not consistent with

the express legislative intent. Acme Markets, Inc. v.

Callanan, 236 Ill. 2d 29, 37-38, 923 N.E.2d 718, 337 Ill.

Dec. 867 (2009).

Section 11a-17(a-10) of the Probate Act provides:

“Upon petition by the guardian of the ward’s

person or estate, the court may authorize and

direct a guardian of the ward’s person or estate

to consent, on behalf of the ward, to the ward’s

marriage pursuant to Part II of the Illinois

Marriage and Dissolution of Marriage Act if

the court finds by clear and convincing evidence

that the marriage is in the ward’s best interests.

In making its determination, the court shall

consider the standards set forth in subsection

(e) of this Section. Upon presentation of a court

order authorizing and directing a guardian of

the ward’s person and estate to consent to the

ward’s marriage, the county clerk shall accept

the guardian’s application, appearance, and

signature on behalf of the ward for purposes

of issuing a license to marry under Section

203 of the Illinois Marriage and Dissolution of

Marriage Act.” 755 ILCS 5/11a-17(a-10) (West

2016).

48a

Appendix A

The majority acknowledges this statutory provision

but chooses to dodge the language itself. Instead, after

quoting section 11a-17 in its entirety, the majority simply

concludes that, “under the Probate Act, a ward who wishes

to enter into a marriage may do so only with the consent

of his guardian” and “[p]ursuant to section 11a-17(a-10)

[(755 ILCS 5/11a-17(a-10) West 2016))], for a guardian to

obtain the ability to consent, he must file a petition with

the court.” Supra ¶ 64.

The plain language of section 11a-17(a-10), however,

does not mandate prior approval by the court before a

ward can marry of his or her own accord. The provision

begins “[u]pon petition by the guardian” and then provides

that “the court may authorize and direct a guardian ***

to consent, on behalf of the ward, to the ward’s marriage

*** if the court finds *** that the marriage is in the ward’s

best interests.” 755 ILCS 5/11a-17(a-10) (West 2016).

Thereafter, the section states that, “[u]pon presentation

of a court order authorizing and directing a guardian

of the ward’s person and estate to consent to the ward’s

marriage, the county clerk shall accept the guardian’s

application.” Id.

The plain language of section 11a-17(a-10), as the

appellate court recognized, merely provides a procedure

to allow a guardian to petition the court for authorization

to consent, on behalf of a ward, to the ward’s marriage

following a best-interest determination. Among other

reasons, a guardian may seek such a court order for ease of

meeting the requirements of the Marriage Act on behalf of

his or her ward who is marrying or to prevent a subsequent

49a

Appendix A

challenge that his or her ward lacked, for purposes of the

Marriage Act, the capacity to consent to the marriage.

The fact that the provision permits a guardian to seek

an order allowing consent from the court does not mean

the legislature intended that a ward’s marriage would

be invalid unless the guardian first obtained the court’s

approval. The appellate court was correct that nothing

in the plain language of section 11a-17(a-10) provides that

a marriage entered into by a ward without his or her

guardian’s consent, or following a judicial determination

of best interest, is void.

The majority extraordinarily holds that the Marriage

Act does not govern in a case centered on whether a

couple was legally married in Illinois. See supra ¶ 76.

The majority ignores the obvious; the Marriage Act

specifically addresses the requirements and formalities

that a couple must fulfill to be legally married in Illinois.

See 750 ILCS 5/101 et seq. (West 2016). None of those

requirements reference section 11a-17(a-10) of the Probate

Act or suggest that a ward must have the consent of his

or her guardian after a court hearing on best interest to

enter into a valid marriage in Illinois.

The Marriage Act does, however, provide a clear

process by which a court may declare a marriage invalid

when it is shown, prior to a ward’s death, that he or she

lacked the capacity to consent to the marriage because of

mental incapacity or infirmity.

Section 301 of the Marriage Act provides, in pertinent

part:

50a

Appendix A

“Declaration of invalidity—Grounds. The court

shall enter its judgment declaring the invalidity

of a marriage (formerly known as annulment)

entered into under the following circumstances:

(1) a party lacked capacity to consent

to the marriage at the time the

marriage was solemnized, either

because of mental incapacity or

infirmity or because of the influence of

alcohol, drugs or other incapacitating

substances, or a party was induced

to enter into a marriage by force

or duress or by fraud involving the

essentials of marriage[.]” Id. § 301.

Section 302 of the Marriage Act then specifies, in

pertinent part:

“Time of commencement. (a) A declaration of

invalidity under paragraph[ ] (1) *** of Section

301 may be sought by any of the following

persons and must be commenced within the

times specified:

(1) for any of the reasons set forth in

paragraph (1) of Section 301, by either

party or by the legal representative

of the party who lacked capacity to

consent, no later than 90 days after

the petitioner obtained knowledge of

the described condition;

51a

Appendix A

***

(b) In no event may a declaration of invalidity

of marriage be sought after the death of either

party to the marriage under subsection[ ] (1)

*** of Section 301.” (Emphases added.) Id.

§ 302.

The Marriage Act unambiguously requires that any

challenge by a guardian to his or her ward’s competency

to consent to marriage because of mental incapacity or

infirmity occur no later than 90 days after the guardian

obtained knowledge and “in no event” after the ward’s

death. By reading language into section 11a-17(a-10) of the

Probate Act and in complete contravention of the Marriage

Act, the majority is allowing a marriage to be declared

invalid after the death of a party to the marriage; the

majority is doing indirectly what the Marriage Act clearly

prohibits. See Accettura v. Vacationland, Inc., 2019 IL

124285, ¶ 11, 440 Ill. Dec. 636, 155 N.E.3d 406 (a court

may not alter the plain meaning of a statute’s language

by reading into it exceptions, limitations, or conditions not

expressed by the legislature). The majority’s erroneous

ruling renders void any marriage in Illinois that has

been entered into since August 26, 2014, by a ward with

a plenary guardian who did not first receive a court order

authorizing and directing the guardian to consent to the

ward’s marriage. See Pub. Act 98-1107, § 5 (eff. Aug. 26,

2014) (adding 755 ILCS 5/11a-17(a-10)). The majority fails

to acknowledge the very serious impact of this holding on

such couples, including those who may have had a child

following what they had every reason to believe was a

valid marriage in Illinois.

52a

Appendix A

While not addressed by the majority, the circuit court

provided two additional reasons for granting Shawn’s

motion for a directed verdict that were also erroneous.

First, the court erroneously found there was no evidence

that the purported marriage was properly licensed.

Second, the court erroneously found that two witnesses

to the marriage were required for it to be valid.

Section 2-1110 of the Code of Civil Procedure provides

that, in all cases tried without a jury, a defendant may,

at the close of the plaintiff’s case, move for a finding or

judgment in his favor. 735 ILCS 5/2-1110 (West 2016). In

ruling on such a motion for a directed verdict, the trial

court must determine, as a matter of law, whether the

plaintiff has presented a prima facie case. Kokinis v.

Kotrich, 81 Ill. 2d 151, 154-55, 407 N.E.2d 43, 40 Ill. Dec.

812 (1980). A plaintiff establishes a prima facie case

by proffering at least some evidence on every element

essential to the underlying cause of action. Id. at 154.

As previously recognized, to legally marry in Illinois,

a couple must fulfill the requirements and formalities set

out in the Marriage Act. See 750 ILCS 5/101 et seq. (West

2016). Section 201 of the Marriage Act provides that “[a]

marriage between 2 persons licensed, solemnized and

registered as provided in this Act is valid in this State.” Id.

§ 201. The parties must apply for a marriage license from

the county clerk’s office of the county in which they intend

to marry. Id. §§ 203, 207. The parties must then appear

before a duly authorized officiant and, after consenting

to marry, must file the marriage certificate with the

county clerk’s office within 10 days after the marriage is

solemnized. Id. § 209.

53a

Appendix A

The circuit court found that Ellizzette, a selfrepresented litigant, failed to present a prima facie case

of a valid marriage, in part, because there was no evidence

that her purported marriage was properly licensed. In

doing so, the court stated,

“It would have been simple to present the evidence of

a marriage license and certificate and application and have

some witnesses testify about that, but that was not done.”

This finding overlooked the fact that the court already

had evidence of a marriage application, license, and

certificate because it had previously granted Shawn’s

motion to take judicial notice of these certified documents.

Because the circuit court had taken judicial notice of these

three documents for purposes of the trial, there was no

need for Ellizzette to reintroduce them. Consequently, the

circuit court erred in holding that there was no evidence

that the purported marriage was properly licensed.

Similarly, the circuit court erred by holding that

Ellizzette had not made a prima facie case based on a lack

of evidence of two witnesses to the marriage ceremony

of which Raymond Bement testified he officiated at the

couple’s home in Edgar County. Simply put, no provision in

the Marriage Act requires the presence of two witnesses

for a marriage to be valid in Illinois, so that rationale could

not form a basis either for granting Shawn’s motion for a

directed finding.

Finally, I agree with the majority that the circuit court

erred when it granted Shawn’s motion in limine, barring

Ellizzette from testifying regarding the marriage and

54a

Appendix A

heirship. The circuit court’s erroneous ruling was based

on its conclusion that section 8-201 of the Code of Civil

Procedure (735 ILCS 5/8-201 (West 2016)), commonly

referred to as the Dead Man’s Act, precluded her testimony.

As the majority finds, section 8-201(d) specifically provides

that “[n]o person shall be barred from testifying as to any

fact relating to the heirship of a decedent.” Id.

I disagree, however, with the majority’s conclusion

that Ellizzette failed to preserve the error by not making

an offer of proof. “The purpose of an offer of proof is to

inform the trial court, opposing counsel, and a reviewing

court of the nature and substance of the evidence sought

to be introduced.” Dillon v. Evanston Hospital, 199 Ill.

2d 483, 495, 771 N.E.2d 357, 264 Ill. Dec. 653 (2002). This

court has long held that “an offer of proof is not required

where it is apparent that the trial court clearly understood

the nature and character of the evidence sought to be

introduced.” Id. (citing People v. Peeples, 155 Ill. 2d 422,

457-58, 616 N.E.2d 294, 186 Ill. Dec. 341 (1993), In re A.M.,

274 Ill. App. 3d 702, 709, 653 N.E.2d 1294, 210 Ill. Dec.

832 (1995), and Michael H. Graham, Cleary and Graham’s

Handbook of Illinois Evidence § 103.7, at 23-24 (7th ed.

1999)). Here, an offer of proof was not necessary because

it was clear that Ellizzette would be testifying regarding

the circumstances surrounding her purported marriage

to John, which was the core issue at trial.

For the reasons stated, the circuit court erred in barring

Ellizzette from testifying and in granting Shawn’s motion

for a directed finding, and I would remand this matter to

the circuit court for further proceedings. Accordingly, I

respectfully concur in part and dissent in part.

JUSTICES OVERSTREET and CARTER join in

this partial concurrence, partial dissent.

55a

Appendix

B the appellate

Appendix b — opinion

of

court of illinois, second district,

filed february 1, 2021

IN THE Appellate Court of Illinois

Second District

No. 2-19-1113

In re ESTATE OF JOHN W. MCDONALD III,

Deceased.

Shawn McDonald,

Petitioner and Counterrespondent-Appellee,

v.

Ellizzette McDonald,

Respondent and Counterpetitioner-Appellant.

February 1, 2021, Opinion Filed

Appeal from the Circuit Court of Kane County

No. 17-P-744

Honorable James R. Murphy, Judge, Presiding

JUSTICE HUDSON delivered the judgment of the

court, with opinion.

Justices Schostok and Birkett concurred in the

judgment and opinion.

56a

Appendix B

OPINION

I. INTRODUCTION

This appeal concerns the estate of decedent, John

W. McDonald III. Decedent died intestate on December

11, 2017. Four days later, petitioner, Shawn McDonald

(Shawn), decedent’s brother, filed in the circuit court of

Kane County a petition for letters of administration and

an affidavit of heirship. The trial court appointed Shawn

as the administrator of decedent’s estate and declared

decedent’s parents—John W. McDonald Jr. and Brenda

K. McDonald—and siblings—Shawn, Heather Ladue, and

Brett McDonald—as his only heirs. Respondent, Ellizzette

McDonald (Ellizzette), purporting to be decedent’s

surviving spouse, sought to vacate the order appointing

Shawn as the administrator of decedent’s estate and the

order of heirship. The trial court denied Ellizzette’s motion

but granted her leave to proceed pursuant to section 9-7

of the Probate Act of 1975 (Probate Act) (755 ILCS 5/9-7

(West 2016)). Ellizzette then filed a petition for letters of

administration, an affidavit of heirship, and a motion for

judgment on the pleadings with regard to her petition

for letters of administration. After the trial court denied

Ellizzette’s motion for judgment on the pleadings, the

matter proceeded to a bench trial. Shawn moved for a

directed finding at the close of Ellizzette’s case. The trial

court granted Shawn’s motion, concluding that Ellizzette

failed to present a prima facie case on the validity of her

marriage to decedent. Ellizzette then filed a notice of

appeal.

57a

Appendix B

On appeal, Ellizzette raises five principal issues. First,

she argues that the trial court erred when it appointed

Shawn as the administrator of decedent’s estate, because

she was not provided with the statutorily required notice.

Second, she asserts that the trial court erred in denying

her motion for judgment on the pleadings. Third, she

contends that the trial court erred in granting Shawn’s

motion for a directed finding. Fourth, she argues that

the trial court committed reversible error in barring her

from testifying, at the trial on her petition, regarding her

marriage and heirship. Finally, she maintains that the

trial court erred in denying her motion for a continuance.

For the reasons set forth below, we affirm in part, reverse

in part, and remand this matter for further proceedings.

II. BACKGROUND

Decedent died intestate on December 11, 2017, in

Paris, Illinois. As noted, Shawn is decedent’s brother and

Ellizzette purports to be decedent’s surviving spouse.

A.

Guardianship

On March 7, 2017, Shawn filed in the circuit court of

Kane County a petition for the appointment of a guardian

for a disabled person. In support of the guardianship

petition, Shawn submitted a physician’s report stating

that decedent suffered from “bipolar disorder with manic

and depressive episodes” as well as “alcohol use disorder

(severe).” On May 30, 2017, the trial court entered an

order declaring decedent a disabled person who “is

totally without capacity” as specified in section 11a-3

58a

Appendix B

of the Probate Act (755 ILCS 5/11a-3 (West 2016)) and

appointing Shawn as the plenary guardian of decedent’s

person and estate. The record suggests that decedent

did not participate in the guardianship proceedings.

When made aware of the proceedings, decedent obtained

counsel and objected to the order appointing Shawn as

his guardian. However, the record does not show that a

trial was conducted on whether the guardianship should

have been entered.

B. Petition for Letters of Administration and

Affidavit of Heirship

On December 15, 2017, four days after decedent’s

death, Shawn filed in the circuit court of Kane County (1)

a petition for letters of administration and (2) an affidavit

of heirship. In his affidavit of heirship, Shawn asserted

that decedent had been married “once and only once and

then to Debbie Greene McDonald,” with said marriage

ending in divorce sometime prior to 2012. Shawn stated

that on July 11, 2017, decedent “participated in a wedding

ceremony with Ellizzette Duvall Minnicelli.” Shawn

claimed, however, that the marriage was void ab initio

because decedent lacked the capacity to consent to the

marriage. Therefore, Shawn requested that decedent’s

parents and his three siblings be declared as decedent’s

heirs at law. The matter was assigned to Judge John A.

Noverini. In an order bearing the handwritten date of

December 18, 2017, but file-stamped December 19, 2017,

Judge Noverini appointed Shawn as the administrator of

decedent’s estate. Judge Noverini also entered an order

declaring heirship, listing decedent’s parents and his

59a

Appendix B

three siblings as his only heirs. On December 21, 2017, the

clerk of the circuit court issued letters of office advising

of Shawn’s appointment as the independent administrator

of decedent’s estate pursuant to the order entered by the

trial court.

C.

Petition for Declaration of Invalidity of

Marriage

On December 22, 2017, Shawn filed a verified “Petition

for Declaration of Invalidity of a Marriage,” pursuant to

section 301(1) of the Illinois Marriage and Dissolution

of Marriage Act (Marriage Act) (750 ILCS 5/301(1)

(West 2016)). The petition asserted as follows. On July

11, 2017, decedent participated in a marriage ceremony

with an individual named “Ellizzette Duvall Minnicelli”

in Edgar County, Illinois. Shawn first learned of the

marriage ceremony when it was disclosed to him in open

court on November 16, 2017, during a hearing in the

guardianship case. Because decedent’s person and estate

were under plenary guardianship when he participated

in the marriage ceremony, decedent lacked the legal

capacity to consent to the marriage. At the time the

marriage ceremony was performed, decedent had actual

knowledge of the existence of the guardianship and was

actively participating in litigation in the guardianship

case. Further, at the time the marriage ceremony was

performed, “Ellizzette Duvall Minnicelli” had actual

knowledge of the existence of the guardianship and was

actively assisting decedent in pursuing then-ongoing

litigation in the guardianship case. Shawn prayed for the

entry of an order “declaring the invalidity of the marriage

60a

Appendix B

of the Decedent *** to Ellizzette Duvall Minnicelli and

further declaring the said marriage to be void ab initio.”

Attached to the petition was a copy of a “Certification of

Marriage” issued by the clerk of Edgar County, Illinois.

Shawn voluntarily withdrew this pleading without

prejudice on March 7, 2018.

D. Ellizzette’s Motion to Vacate

Meanwhile, on January 4, 2018, counsel entered

an appearance on Ellizzette’s behalf. That same day,

Ellizzette filed a motion for substitution of judge as a

matter of right. Ellizzette’s motion was granted, and the

matter was transferred to Judge James R. Murphy.

On January 17, 2018, Ellizzette filed a “Motion to

Vacate Order Appointing Administration and Order of

Heirship.”1 Ellizzette’s motion asserted that the order

appointing Shawn as the administrator of decedent’s

estate and the order of heirship should be vacated because

Shawn obtained letters of administration and assumed

control of decedent’s estate under false pretenses.

Specifically, Ellizzette contended that, (1) as decedent’s

surviving spouse, she is decedent’s sole heir and has a

superior right to act as decedent’s administrator and (2)

Shawn intentionally failed to provide her notice of his

petition for letters.

1. On the same date, Ellizzette filed a “Motion to Reconsider

Order Appointing Administration and Order of Heirship.” The

motion to reconsider was substantively identical to the motion to

vacate.

61a

Appendix B

On March 7, 2018, Shawn filed his response to

Ellizzette’s motion to vacate. Shawn asserted that,

although Ellizzette participated in a “marriage ceremony”

with decedent, decedent lacked the capacity to enter into

a “marriage contract,” because of the guardianship. In

support of his position, Shawn cited section 11a-22(b)

of the Probate Act (755 ILCS 5/11a-22(b) (West 2016)).

Section 11a-22(b) provides that “[e]very note, bill, bond or

other contract by any person for whom a plenary guardian

has been appointed or who is adjudged to be unable to so

contract is void against that person and his estate, but a

person making a contract with the person so adjudged is

bound thereby.” 755 ILCS 5/11a-22(b) (West 2016). Shawn

asserted that marriage is a contract. Hence, pursuant

to section 11a-22(b), the “marriage contract” entered

into on July 11, 2017, between decedent and Ellizzette

is void. Since the marriage is void, decedent was not

married at the time of his death and his only heirs at law

are his parents and his siblings. Shawn did not dispute

that Ellizzette was not provided notice of his petition

for letters of administration. He asserted, however, that

notice is required to be served on only a decedent’s heirs.

Since Ellizzette is not an heir, there was no need to serve

notice on her.

In her reply to Shawn’s response, Ellizzette argued

that section 11a-22(b) of the Probate Act does not address

the validity of a marriage but, rather, is intended to

address transactional contracts entered into by a ward.

Ellizzette further asserted that her marriage to decedent

enjoys a strong presumption of validity under Illinois

law (see Larson v. Larson, 42 Ill. App. 2d 467, 472, 192

62a

Appendix B

N.E.2d 594 (1963) (“When the celebration of marriage

is shown, the contract of marriage, the capacity of the

parties, and, in fact, everything necessary to the validity

of the marriage, in the absence of proof to the contrary,

will be presumed ***.”)) and that the guardianship over

decedent did not compel the conclusion that he was unable

to consent to marriage, because the appointment of a

guardian is not sufficient, in and of itself, to show that the

person was incompetent to have consented to a marriage

(see Pape v. Byrd, 145 Ill. 2d 13, 21, 582 N.E.2d 164,

163 Ill. Dec. 898 (1991)). Ellizzette added that questions

regarding the validity of her marriage are governed by

the Marriage Act (750 ILCS 5/101 et seq. (West 2016)).

Further, section 302(b) of the Marriage Act prohibits

any attempt to invalidate a marriage after the death of

either party to the marriage on the basis of one party’s

incapacity to consent. 750 ILCS 5/302(b) (West 2016) (“In

no event may a declaration of invalidity of marriage be

sought after the death of either party to the marriage

under subsections (1), (2), and (3) of Section 301.”); see

also 750 ILCS 5/301(1) (West 2016) (“The court shall

enter its judgment declaring the invalidity of a marriage

*** entered into under the following circumstances: (1)

a party lacked capacity to consent to the marriage at

the time the marriage was solemnized, either because of

mental incapacity or infirmity or because of the influence

of alcohol, drugs or other incapacitating substances, or a

party was induced to enter into a marriage by force or

duress or by fraud involving the essentials of marriage[.]”).

Despite his knowledge of Ellizzette’s and decedent’s

marriage, Shawn failed to challenge the marriage during

decedent’s lifetime and was therefore time-barred from

63a

Appendix B

attempting to invalidate the marriage. See 750 ILCS

5/301, 302(b) (West 2016). Thus, Ellizzette reasoned, the

marriage was valid as a matter of law and she is decedent’s

surviving spouse and sole heir at law.

On April 18, 2018, the trial court denied Ellizzette’s

“motion to vacate.” 2 In the same order, the court granted

Ellizzette leave to file a petition for the appointment of

an administrator and an affidavit of heirship pursuant

to section 9-7 of the Probate Act (755 ILCS 5/9-7 (West

2016)). The court directed Ellizzette to file the documents

by May 2, 2018.

E. E l l i z z e t t e ’s Pe t i t i o n fo r L e t t e r s o f

Administration and Shawn’s Response

On May 1, 2018, Ellizzette filed her petition for letters

of administration and affidavit of heirship. In the filings,

Ellizzette stated that she is decedent’s surviving spouse.

She further asserted that, since decedent had no children,

she is decedent’s sole heir.

On May 25, 2018, Shawn filed his response to

Ellizzette’s petition for letters of administration and

affidavit of heirship. In his response, Shawn argued that,

pursuant to section 9-7 of the Probate Act (755 ILCS

5/9-7 (West 2016)), Ellizzette had three months after the

issuance of letters of administration to him to file her own

2. Although the trial court’s April 18, 2018, order references

only the denial of Ellizzette’s motion to vacate, we conclude that it also

dispensed with the motion to reconsider, which was nearly identical to

and raised the same substantive arguments as the motion to vacate.

64a

Appendix B

petition for letters of administration. Shawn argued that

Ellizzette’s petition for letters of administration, which

was filed on May 1, 2018, was untimely because it was filed

more than three months after letters of administration

were issued to him. Shawn further asserted that nothing

in the statute allows the court to grant an extension to file

a petition for letters of administration outside the threemonth window. Therefore, he argued, the court lacked

jurisdiction to consider Ellizzette’s petition.

F. Ellizzette’s Motion for Judgment on the

Pleadings

On June 7, 2018, Ellizzette filed a motion for judgment

on the pleadings. Initially, Ellizzette argued that the

trial court was empowered to extend the filing window

for a pleading under section 9-7 of the Probate Act (755

ILCS 5/9-7 (West 2016)) beyond the three-month window,

because the language of the statute is permissive and

controlling law makes clear that a party seeking to

challenge an order declaring heirship is free to do so at

any time during the administration of the estate or after

the estate has been closed. Ellizzette also contended that,

since Shawn failed to deny her verified factual allegations,

including that she is decedent’s surviving spouse, these

allegations were deemed admitted. See 735 ILCS 5/2-610

(West 2016). Alternatively, Ellizzette argued that the only

basis to challenge the validity of a marriage after the

death of one of the parties to the marriage is “the narrow

bar against ‘prohibited marriages’ under the [Marriage

Act].” See 750 ILCS 5/301(4), 212 (West 2016). Ellizzette

requested full judgment on the pleadings in her favor or,

65a

Appendix B

alternatively, “partial judgment on the pleadings in [her]

favor *** limiting discovery and hearing on the Petition

to the narrow issue of whether the Decedent’s marriage

to [her] constitutes a ‘prohibited marriage’ under the

[Marriage Act].”

On July 3, 2018, Shawn filed a response to Ellizzette’s

motion for judgment on the pleadings. Shawn reiterated

his position that section 11a-22(b) of the Probate Act (755

ILCS 5/11a-22(b) (West 2016)) bars any contract, including

one for marriage, entered into by someone such as decedent,

for whom a plenary guardian had been appointed. Thus,

he concluded, any marriage contract between Ellizzette

and decedent was void. Shawn further contended that

judgment on the pleadings was inappropriate because

there remained a factual issue regarding whether the

alleged marriage between Ellizzette and decedent was

valid. See In re Estate of Davis, 225 Ill. App. 3d 998, 1000,

589 N.E.2d 154, 168 Ill. Dec. 40 (1992).

On September 10, 2018, the trial court denied

Ellizzette’s motion for judgment on the pleadings as

“premature.”

G. Shawn’s Motion for Judicial Notice

On October 2, 2018, Shawn filed a motion requesting

the trial court to take judicial notice of the “Certified

Copy of Edgar County, Illinois[,] Marriage Application

and Record of [decedent] and Ellizzette Duvall Minicelli

[sic].” Shawn attached three documents to his motion: (1)

a certified copy of a “Certification of Marriage” between

66a

Appendix B

decedent and “Ellizzette Duvall Minnicelli” issued by the

clerk of Edgar County, Illinois; (2) a certified copy of a

“Marriage License” for decedent and “Ellizzette Duvall

Minnicelli” issued by the clerk of Edgar County, Illinois;

and (3) a certified copy of a “Marriage Application and

Record” issued by the clerk of Edgar County, Illinois.

On November 30, 2018, the trial court entered an order

granting Shawn’s motion for judicial notice.

On April 15, 2019, the trial court entered an order

setting the matter for trial over several dates beginning

on November 18, 2019.

H. Ellizzette’s Counsel’s Motion to Withdraw

On September 12, 2019, Ellizzette’s counsel moved to

withdraw. The trial court granted counsel’s motion in an

order dated September 18, 2019. The same order further

provided that (1) Ellizzette would have 21 days “to find

other counsel and/or file a [s]ubstitute [a]ppearance,” (2)

the scheduled November 18, 2019, trial date would stand,

and (3) all pending motions and status of counsel would

be continued to October 23, 2019.

I. Shawn’s Motion In Limine

On October 16, 2019, Shawn filed a “Motion In Limine”

seeking to bar Ellizzette from testifying or presenting

any evidence as to any marital relationship she had with

decedent. Citing Laurence v. Laurence, 164 Ill. 367, 45

N.E. 1071 (1896), In re Estate of Diak, 70 Ill. App. 2d 1,

217 N.E.2d 106 (1966), and In re Estate of Enoch, 52 Ill.

67a

Appendix B

App. 2d 39, 201 N.E.2d 682 (1964), Shawn alleged that the

admission of such testimony would violate the Dead Man’s

Act (735 ILCS 5/8-201 (West 2016)).

On October 23, 2019, Ellizzette filed an appearance on

her own behalf. A week later, Ellizzette filed a response

to Shawn’s motion in limine. Ellizzette argued, inter

alia, that the “plain text” of section 8-201(d) of the Dead

Man’s Act provides that “[n]o person shall be barred

from testifying as to any fact relating to the heirship of

a decedent.” 735 ILCS 5/8-201(d) (West 2016). Ellizzette

contended that, because her testimony would “relate to

facts surrounding the heirship of [decedent], this testimony

falls precisely within the exception carved out within the

Dead Man’s Act itself.” Ellizzette therefore contended

that her testimony as to her marriage to decedent, which

would directly relate to heirship, should not be barred.

On November 13, 2019, following oral argument by the

parties, the trial court granted Shawn’s motion in limine.

The court explained that “Illinois law says that the spouse

cannot testify as to heirship, and there’s cases cited, and

they weren’t responded to.” That same day, the trial court

entered a written order in accordance with its oral finding,

granting Shawn’s motion in limine and barring Ellizzette

from “testifying regarding her putative marriage to the

decedent or regarding the decedent’s heirship.”

J. Ellizzette’s Motion for Continuance

At the hearing on November 13, 2019, the court asked

Ellizzette if she would be ready for trial on November 18,

68a

Appendix B

2019. Ellizzette responded that she would not be ready but

stated that she was aware that “that’s the date” and that

she was “not looking to *** waste the Court’s time.” She

further informed the court that she would be present on

November 18 “if [she is] expected to be [in court].”

At 3:49 a.m. on November 18, 2019, Ellizzette filed a

“Motion for Continuance” seeking to continue the trial

to December 3, 2019, or later. In the motion, Ellizzette

alleged that she had good cause for requesting an

extension, because (1) her father had been hospitalized in

Arizona and declared “end of life”; (2) her mother, whom

she categorized as a “key witness,” would be unable to

attend the trial due to the status of Ellizzette’s father;

(3) Ellizzette’s attorneys withdrew from the case due

to the “high outstanding balance” of attorney fees that

Ellizzette was unable to pay, because she was involved in

an automobile accident that resulted in significant out-ofpocket medical expenses; and (4) Ellizzette was unable to

obtain the testimony of two key witnesses. Ellizzette also

asserted that she had paid the outstanding balance owed

to her prior attorneys and requested that they be allowed

to reenter an appearance on her behalf. The trial court

denied the motion for a continuance.

K. Trial

The matter proceeded to trial on Ellizzette’s petition,

with the evidence centered on the validity of Ellizzette’s

marriage to decedent. In accordance with the trial court’s

ruling on Shawn’s motion in limine, Ellizzette did not

testify. However, Ellizzette called three witnesses in her

69a

Appendix B

case-in-chief: Diane Boyer, Dr. Visar Belegu, and Ray

Bement.

Boyer testified that she was involved in the preparations

for Ellizzette’s and decedent’s marriage and observed

Ellizzette and decedent interacting with each other

every week in 2017. Boyer also opined that Ellizzette and

decedent were happily living together.

Dr. Belegu, a colleague of decedent, testified that he

was aware that Ellizzette and decedent had married. Dr.

Belegu further testified that he had contact with decedent

two or three times a week in 2017. In Dr. Belegu’s opinion,

decedent was happily married. On cross-examination, Dr.

Belegu testified that he was not present at any marriage

ceremony between Ellizzette and decedent and that he

was not aware of any witnesses to the marriage.

Bement testified that he met Ellizzette and decedent in

1982. In 2017, Bement learned that Ellizzette and decedent

were engaged. Bement participated in preparations for a

marriage ceremony between Ellizzette and decedent. To

that end, on July 11, 2017, Bement performed Ellizzette’s

and decedent’s marriage ceremony in the participants’

home in Paris, Edgar County, Illinois. Bement further

testified that he signed the marriage certificate in the

kitchen of Ellizzette’s and decedent’s home in Paris. After

Bement signed the marriage certificate, he, Ellizzette,

and decedent went to Allerton Park in Monticello (Piatt

County) for an additional “more secular” ceremony.

Bement also stated that he attended a Ketubah signing

on July 10, 2017, at Ellizzette and decedent’s home in

70a

Appendix B

Paris. Bement explained that a Ketubah is “like what

Christians would call a marriage license” and states what

each party will bring to the relationship. Following the

marriage, Bement interacted with Ellizzette and decedent

on professional and personal bases.

On cross-examination, Bement testified that it was

his idea to be the officiant at Ellizzette and decedent’s

marriage ceremony. He obtained a certificate to become

an officiant from an online ministry in a process that took

between 5 and 10 minutes. The following exchange then

ensued between Shawn’s counsel, Bement, Ellizzette, and

the trial court:

“Q. And the marriage ceremony, as you testified

on direct, the secular marriage ceremony

was conducted in Piatt County; is that a fair

statement?

A. Yes.

***

[Ellizzette]: Objection, Your Honor. Mr. Bement

also testified earlier that he performed a

marriage ceremony at our home in Paris.

[Shawn’s counsel]: His testimony according

to my notes was that the secular part of the

marriage was conducted in Piatt County. That’s

what he testified to.

71a

Appendix B

THE COURT: All right. You’ll be able to

redirect questions, so overruled.”

Bement further testified that the only people present

for the Piatt County ceremony were decedent and

Ellizzette.

On redirect examination, Bement reiterated that he

signed the marriage certificate in the kitchen of Ellizzette

and decedent’s house in Paris, Edgar County, Illinois.

Following Bement’s testimony, Ellizzette stated that

she had no other witnesses. Shawn’s counsel then orally

mo

This text is long and has been trimmed here. Open the source document for the complete record.