Opinion
No. 1-17-3167
09-11-2019
In re ESTATE OF PAUL G. OLEKSIUK, Deceased, (Elizabeth van den Heuvel and Andrew Oleksiuk, Petitioners-Appellants, v. Irena Oleksiuk, as Administrator of the Estate of Paul G. Oleksiuk, Respondent-Appellee).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 14 P 3898 Honorable Susan M. Coleman, Judge, presiding. JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment.
ORDER
¶ 1 Held: The circuit court properly dismissed the petition to admit a copy of the 2011 Will into probate where petitioners could not plead any facts to rebut the presumption of revocation given that decedent had executed a will in 2012 expressly revoking the 2011 Will. ¶ 2 Petitioners, Elizabeth van den Heuvel and Andrew Oleksiuk, filed a petition to admit a copy of Paul G. Oleksiuk's (hereinafter referred to as Decedent) 2011 Will into probate in lieu of the original which could not be found. Irena Oleksiuk, decedent's surviving spouse, was named Administrator of the Estate by the circuit court in earlier proceedings. Irena responded to the petition with a combined motion to dismiss pursuant to section 2-619.1 of the Illinois Code of Civil Procedure (Code). 735 ILCS 5/2-619.1 (West 2016). Petitioners now appeal from the circuit court's November 29, 2017 order dismissing the petition. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 In early June 2014, decedent suffered a stroke. He died in the hospital on June 14, 2014. He was survived by his wife Irena, his sister Elizabeth, his twin brother Peter Oleksiuk, and his three adult nephews—Andrew, Daniel, and Steve Oleksiuk. Decedent had no children. Irena had an adult daughter, Oksana Barylaik, from a prior marriage. ¶ 5 Decedent owned real property at the following locations in Chicago: 2057 West Chicago Avenue, 2225 West Superior Street, and 911 North Leavitt Street; as well as farm land in Wisconsin located at 220 Highway 2, Twin Lakes. Decedent's personal property included stocks in Port Travel Inc., his stamp collection, and other residual property. ¶ 6 Three versions of decedent's will were attached as exhibits to the pleadings. The first was executed in 2006 and divided his real property between Irena, Peter, and Elizabeth. Irena was to receive the properties at 2057 West Chicago and 2225 West Superior. Peter was to receive the Wisconsin farmland. The property at 911 North Leavitt was divided among Elizabeth, Peter, and Irena; with Elizabeth taking a majority, one-half interest and Peter and Irena each receiving a one-fourth interest. Additionally, Irena was designated to receive decedent's shares of Port Travel Inc. and Andrew to receive decedent's stamp collection. The residue of his estate was to be divided among the surviving "issue of [decedent's] parents, per stirpes." A 2011 Will similarly disposed of decedent's real and personal property except Irena's share of 911 North Leavitt under the 2006 Will was reallocated to Peter, increasing his share from one-fourth to one-half and a provision was added granting Peter "exclusive and unrestricted use of any apartment unit" at the North Leavitt property as a rent-free personal residence until his death. ¶ 7 The 2012 Will retained the gifts to Andrew and Irena as outlined in the 2011 Will. However, the will no longer made specific gifts regarding the Wisconsin farmland or 911 North Leavitt. The 2012 Will also removed the earlier provisions for per stirpes distribution of the residual estate and instead, specified the following distributions: 31% to Elizabeth, 26% to the "Paul Oleksiuk Education and Welfare Fund" to be established, 15% to Andrew, 15% to Peter, 5% to Oksana, 4% to Steve, and 4% to Dan. A separate page captioned "Amendment to My Will" from December 2012 provided for Peter's use of an apartment in 911 North Leavitt as was outlined in the 2011 Will.
During the pendency of this case, Peter Oleksiuk also died.
¶ 8 A. The Preceding Petitions
¶ 9 On June 30, 2014, Irena petitioned the circuit court to name her as administrator of the Estate stating that decedent had died without a will. The following month, Andrew petitioned the circuit court, attaching an alleged copy of decedent's 2006 Will, asking that Irena be ordered to file the original will. Andrew also asked for the court to supervise the opening of a safety deposit box owned by decedent to search for the original will. The safety deposit box was opened, but no original will was recovered. The court entered an order declaring Irena as decedent's sole heir and issued letters of office. ¶ 10 Elizabeth and Andrew challenged Irena's appointment as Administrator and petitioned the court to admit a copy of the 2006 Will into probate alleging that Irena had received the original 2006 Will, but had failed to produce and file the original in contravention of section 6-1 of the Probate Act (the Act), see 755 ILCS 5/6-1 (West 2014). All parties recognized that the rule of law in cases where an original will cannot be found is that the court presumes the testator intended to revoke the will. Nevertheless, petitioners argued that the presumption of revocation should be rejected here because decedent had not expressed an intent to revoke his 2006 Will, executed additional estate planning documents, nor changed his kind and loving attitude toward the enumerated beneficiaries of the 2006 Will prior to his death. Furthermore, the petition asserted that the original will was located at decedent's place of work and turned over to Irena. Petitioners alleged that Irena had a contentious relationship with decedent when it came to financial matters. Thus, petitioners claimed that her access to the original will combined with her adverse interest to the terms of the will implied that she, rather than decedent, had destroyed the will. Petitioners urged the court to implement decedent's testamentary intent by finding that the presumption of revocation was rebutted and entering a copy of the 2006 Will to probate. ¶ 11 Irena moved to dismiss the petition under section 2-615 arguing that the petition was based on unsupported conclusory allegations. In the alternative, Irena sought a discovery schedule and evidentiary hearing on the petition. Petitioners later amended the petition to include additional facts which Irena argued was still insufficient under section 2-615. On February 18, 2016, the circuit court denied the motion to dismiss, ordered Irena file an answer to the petition, and set timelines for discovery. ¶ 12 After conducting initial discovery, petitioners filed an amended petition acknowledging that they were made aware of two additional wills signed in June 2011 and July 2012, an amendment to decedent's will dated December 2012, as well as a handwritten, undated note with figures and references to some property. The 2011 Will was witnessed and notarized, but neither the 2012 amendment nor the 2012 Will were notarized. The Second Amended Petition sought admission of the 2012 Will copy to probate, instead of the 2006 Will copy. ¶ 13 On February 9, 2017, Irena moved for summary judgment arguing that the 2012 Will copy could not be admitted to probate. Irena maintained that her appointment as Administrator of the estate should stand and the court should apply the presumption of revocation where the original 2012 Will could not be found. Irena asserted that the deposition testimony revealed decedent's intent to change his 2012 will prior to his death, decedent's attitude toward two of decedent's nephews who were listed as beneficiaries under the 2012 Will had changed, and petitioners had failed to prove that anyone had access to the original 2012 Will before or after decedent's death. Shortly after, petitioners filed a cross-motion for default judgment and sanctions against Irena. Petitioners alleged that there Irena was involved in the spoliation of the evidence and sought relief under Illinois Supreme Court Rule 219(c) (eff. July 1, 2002). The circuit court heard argument on the motions on May 17, 2017, and issued a written order on June 9, 2017 denying the cross-motion for default judgment and sanctions as well as granting summary judgment for Irena.
From the record, it appears that Irena never sought to have any will, original or copy, admitted to probate.
In this appeal, petitioners also challenged the circuit court's order granting summary judgment and denying admission of the 2012 Will copy. However, this court found that the matter was not timely appealed. Accordingly, we dismissed the portions of the brief contesting the court's summary judgment order for lack of jurisdiction, and now consider only the arguments related to the motion to dismiss the petition for admission of the 2011 Will copy to probate.
¶ 14 B. The Present Petition
¶ 15 Petitioners reacted to the court's order by filing a separate petition to admit the 2011 Will copy to probate. Petitioners asserted that the court's June 9, 2017 order rendered the 2012 Will and its provision revoking all prior Wills and Codicils "legally ineffective." Thus, petitioners sought to admit the 2011 Will copy. Petitioners further asserted that the presumption of revocation for the 2011 Will could be overcome because the conflict in testimony regarding the existence of an original will after decedent's death should be resolved in favor of petitioners, where Irena's testimony was self-serving. Petitioners asserted that probating the 2011 Will copy would honor decedent's loving attitude toward the proposed beneficiaries and his long-standing history of maintaining a will to direct the distribution of his estate. ¶ 16 Irena filed a combined motion to dismiss under section 2-619.1 maintaining that this petition was an attempt to get "a second bite of the apple" and was barred under section 2-619(a)(9) by the law of the case and res judicata. Irena further asserted that petitioners had failed to allege a cognizable claim and the petition should be dismissed under section 2-615 because the allegations as pled were insufficient to overcome the presumption of revocation. Furthermore, petitioners had effectively "plead [themselves] out of court" as the attached exhibits negated the essential elements required to rebut the presumption of revocation. ¶ 17 After a hearing on the petition on November 29, 2017, the court entered an order stating that the petition was dismissed with prejudice for the reasons stated on the record. Neither the written order nor the hearing transcript specified whether the petition was dismissed under section 2-615 or 2-619.
¶ 18 C. Discovery Depositions
¶ 19 1. Attorney Bohdan George Oleksiuk
¶ 20 Attorney Bohdan George Oleksiuk has no familial relation to the decedent although they share a common surname. At the time of the deposition, Oleksiuk had been licensed and practicing law in Illinois for 42 years. Oleksiuk's practice included probate, estate planning, federal litigation, corporate matters, and title insurance. He was also the attorney for Selfreliance, the Ukrainian-American Federal Credit Union. ¶ 21 Decedent was employed by Selfreliance and had contact with Oleksiuk by virtue of his employment as well as through an attorney-client relationship. Oleksiuk worked to prepare and execute wills for decedent in 1993, 2003, 2006, and 2011. Additionally, he helped decedent draft a new will in 2012, but he had no knowledge that decedent actually executed the draft. When shown the 2012 Will copy, Oleksiuk noted that it appeared to be formatted differently from the wills he had prepared for decedent and he did not recognize the witness signatures. In early 2014, Oleksiuk also helped incorporate and register the Paul Oleksiuk Foundation, a not-for-profit corporation. ¶ 22 Oleksiuk typically had his clients execute their estate planning at his office in Palatine. Occasionally, documents were executed at the offices of Selfreliance if his clients worked there. In very rare instances, Oleksiuk would travel to a client's home to execute document if the client was physically incapacitated and had trouble travelling. Oleksiuk did not prepare the estate planning documents with any special backing to signify that they were special documents. They were typically handed to the client in a plain envelope once completed. ¶ 23 Oleksiuk advised his clients to keep their original documents in a bank's safety deposit box and also provided copies for them to keep at home. He did not retain any client's original estate planning documents. He would also advise them on their ability to amend, revoke, or make new documents at any time. Sometime in 2014, prior to decedent's stroke, decedent mentioned in passing at the Selfreliance office that he wanted to discuss his will, however, decedent never followed up to make an appointment with Oleksiuk.
Copies of the 1993 and 2003 wills were not admitted as deposition exhibits and are not a part of the record. Oleksiuk verified the copies of the 2006 and 2011 Wills attached to the pleadings confirming that he notarized both wills and that he recognized the signatures of the witnesses as Selfreliance employees. --------
¶ 24 2. John Pawlyk
¶ 25 Pawlyk was an old friend of decedent's and also worked at Selfreliance for a number of years. Although he retired in 2013, he still spent a lot of time at the office socializing. Pawlyk testified that he spoke with decedent shortly before his death. Pawlyk had been at Selfreliance and walked past decedent's office. After greeting decedent from the hallway, Pawlyk asked what decedent was doing. Decedent responded, "I'm working on my will." Pawlyk left decedent to continue working and walked away from his office without inquiring further.
¶ 26 2. Bohdan Watral
¶ 27 Bohdan Watral was the president of Selfreliance and testified that he worked with Ulana Hrynewych to go through decedent's office and separate any remaining business and personal records. In carrying out this task, Watral testified that he found what he believed to be two original wills in decedent's desk drawers. He testified that these were stapled documents which were titled as "Last Will and Testament of Paul Oleksiuk." Watral "scanned" through the pages and saw what looked like original signatures. According to Watral, all personal documents were given to Irena. He later amended his testimony to say he did not know if they were original wills, just that they appeared to have signatures on them. He could not verify if the documents attached to the pleadings were the same documents he found in the office because he did not know the dates or contents of the documents he turned over to Irena.
¶ 28 3. Ulana Hrynewych
¶ 29 Ulana Hrynewych was an employee of Selfreliance but she also had known decedent before he started working there. She was not close to decedent and they did not socialize outside of work. To her recollection, decedent suffered a stroke in 2014 and passed away after being hospitalized for a couple weeks. At some point during his hospitalization, Hrynewych and Watral visited decedent but were unable to speak with him because he was in a coma. Hrynewych did not recall any other details about who was present during the visit. She also attended the funeral and recalled that Watral was there, but could not recall any other details.
Prior to his death, decedent occupied one of the offices on the third floor of the building. The office was furnished with filing cabinets, a desk with drawers on both sides, two chairs facing the desk, and a typewriter. In the weeks following his death, no one used this office, although Hrynewych had been in a few times to go through his files and take over any pending work. She vaguely remembered being with Watral and cleaning out decedent's office during which time personal documents in the office were separated from business documents and turned over to Irena. She did not recognize copies of the wills provided as exhibits during the deposition. At some point after the documents were turned over to Irena, Watral may have mentioned that he thought the documents turned over included original wills.
¶ 30 4. Elizabeth van den Heuvel
¶ 31 Elizabeth testified that she was decedent's sister, she lived in Houston, Texas, and at the time of the deposition she was 73 years old, retired, and living on her social security income. For years, decedent had helped to support her financially but she never discussed his estate planning with him. She recalled at one point, decedent had asked for her social security number and another family member had suggested to her that it was related to decedent's efforts to plan for the disposition of his estate. ¶ 32 After decedent suffered his stroke, Andrew informed her of decedent's condition and she flew out to Chicago. She was not aware of the existence of any wills until Peter's ex-wife raised the issue during the reception following the funeral. She later contacted Attorney Oleksiuk and received a copy of the 2006 Will. She also spoke with Andrew about the matter. Later on, she heard from someone in her family that Watral had mentioned seeing an original will in decedent's office. She contacted him and learned he had turned all personal documents over to Irena.
¶ 33 5. Irena Oleksiuk
¶ 34 Irena testified through an interpreter that she had previously only been aware of decedent's 2012 Will of which he gave her a copy for safekeeping. However, in the spring of 2014, decedent asked for the copy back because he wished to change it. Decedent left the 2012 Will copy on his desk at Port Travel. Irena never received any other wills, copies or originals, from decedent. Irena learned of decedent's 2006 Will from Andrew's wife, Claudia, and later received copies of the 2006 and 2011 Wills from Hrynewych which were found in decedent's office. To her recollection, she and her daughter Oksana met with Hrynewych sometime in mid-July 2014 and she received all of decedent's personal documents in an envelope. Watral stopped by the office to direct Hyrnewych on what to turn over. When she examined the documents a few days later, she found that it included the will copies. She testified that she never received originals of any wills. ¶ 35 Irena retained her counsel to deal with decedent's estate around June 30, 2014. She had known him previously as a friend and she showed him the will copies she had received. He told her they were not valid. She could not recall what documents she turned over to counsel, but she no longer had the copies in her possession.
¶ 36 II. ANALYSIS
¶ 37 On appeal, petitioners assert that the circuit court erred in dismissing their petition to admit a copy of the 2011 Will to probate. Petitioners contend that the circuit court granted the combined motion to dismiss under section 2-615, finding that petitioners had failed to properly plead their claims, but must be reversed because the court did not apply the proper standard of review under section 2-615. Irena asserts that the circuit court's order was ambiguous on which grounds were relied upon, but the ambiguity has no effect because the petition cannot survive a 2-615 or 2-619 motion and this court may affirm for any basis in the record. ¶ 38 A motion filed in accordance with section 2-619.1 of the Code allows a party to file a combined motion to dismiss pursuant to sections 2-615 and 2-619 of the Code. 735 ILCS 5/2-619.1, 2-615, 2-619 (West 2016). A motion filed pursuant to 2-615 of the Code challenges the legal sufficiency of the complaint based on defects that are apparent on its face. In re Estate of Cargola, 2017 IL App (1st) 151823, ¶ 16. A motion to dismiss pursuant to section 2-619 of the Code, in turn, admits the legal sufficiency of the complaint but alleges that an affirmative matter defeats the claim contained therein. Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. When reviewing motions brought pursuant to either section, the court must accept as true all well-pleaded facts as well as all of the reasonable inferences that arise therefrom and disregard any conclusions that are not supported by allegations of fact. Id.; Morris v. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 402 (2009). Dismissals entered in accordance with either code section are subject to de novo review. Patrick Engineering, 2012 IL 113148, ¶ 31; Purmal v. Robert N. Wadington & Associates, 354 Ill. App. 3d 715, 720 (2004). ¶ 39 Petitioners maintain that Irena based her 2-619 claims on res judicata and law-of-the-case, but neither doctrine was explicitly addressed by the circuit court. Consequently, petitioners argue that the motion was clearly not decided on 2-619 grounds. Instead, petitioners assert that the motion was decided under section 2-615. Petitioners further assert that the court improperly analyzed whether there was sufficient evidence that the 2011 Will had been revoked, an issue they believe may only be resolved at trial. Petitioners maintain that the court must be reversed for improperly reviewing the evidence proffered rather than focusing on the claims asserted in the petition. Petitioner's argument that the circuit court applied the wrong standard has no effect on our review. See In re Estate of Boyar, 2013 IL 113655, ¶ 27 (Under de novo review of motion to dismiss under the statute, we afford no deference to the lower court.) As stated, we review motions to dismiss under either section de novo. Therefore, we review the judgment not the reasoning.
¶ 40 A. Failure to State a Claim
¶ 41 Dismissing a cause of action pursuant to section 2-615 is proper when it is clearly apparent that no set of facts can be proved that would entitle a plaintiff to recover. Khan v. Deutsche Bank, AG, 2012 IL 112219, ¶ 47. Here, petitioners wish to admit a copy of a will into probate in lieu of the missing original. The law in Illinois is well established regarding lost or missing wills and requires the party seeking to probate a copy of the will to prove that the testator did not intend to revoke the original will. In re Estate of Moos, 414 Ill. 54, 57 (1953). Over the years, the test has remained the same. Proponents of the will copy must prove that the original will was unrevoked and can do so by showing: the decedent's statement that he did not intend to revoke the original, that decedent maintained a loving attitude toward the proposed beneficiary under the will up to the time of death, and evidence that someone else had access to the will prior to decedent's death. In re Estate of Phillips, 359 Ill. App. 3d 114, 121-22 (2005). ¶ 42 Irena contends that petitioners failed to state a claim because they plead themselves out by attaching a subsequent will which demonstrates decedent's clear intent to revoke the 2011 Will at issue. Rather than address the fact that decedent had executed a subsequent will, petitioners focus on the fact that decedent had a long history of maintaining his estate plan via wills and that denying probate of the will would be contrary to decedent's testamentary intent. However, determining whether to admit a copy of the will to probate does not require consideration of decedent's history of maintaining a will. ¶ 43 In support of their argument for probating the 2011 Will, petitioners maintain that we must consider the effect of the court's June 9, 2017 order which denied admission of the 2012 Will copy into probate. Petitioners rely on In re Estate of Schumann, 2016 IL App. (4th) 150844, to assert that, as a matter of law, the 2011 Will is the last, valid expression of decedent's testamentary intent and should be admitted to probate. This is based on their belief that when the 2012 Will copy was denied admission to probate, its provision revoking all prior wills and codicils could not affect the 2011 Will. See In re Estate of Schumann, 2016 IL App. (4th) 150844, ¶ 42 ("[N]o will is legally effective until it has been admitted to probate. No will can be shown to revoke a previous will until the subsequent will has been admitted to probate.") (quoting Crooker v. McArdle, 322 Ill. 27, 29 (1928)). ¶ 44 However, Schumann involved the timing of a revocation clause's effect in the context of whether the legatees under an earlier will had standing to raise a will contest. Schumman, 2016 IL App. (4th) 150844, ¶ 6. There, the respondent and heir under the decedent's 2007 Will moved to dismiss a petition that claimed the will had been executed as a result of the respondent's undue influence over the decedent. Id. ¶ 2. The respondent argued that the petitioners had no standing to challenge the will because any rights they had as legatees under the 2002 Will were revoked by the 2007 Will. Id. ¶ 6. The court rejected the argument finding that the legatees had standing noting that, even where a subsequent will explicitly revokes all prior wills, the revocation clause does not take effect prior to the will's successful admission to probate. Id. ¶¶ 42-43. This analysis offers no support for petitioners' present claim. ¶ 45 Unlike in Schumman, this is neither a question of standing nor of the petitioners' rights to challenge Irena's appointment as administrator. Instead, the central inquiry is whether a copy of the 2011 Will should be admitted in lieu of the missing original 2011 Will. We acknowledge that if admission of the 2012 Will to probate was unsuccessful, for any number of reasons, then the 2011 Will was not legally revoked. Accordingly, if the original 2011 Will were submitted for probate, the petition to admit the unrevoked will could be sustained. However, here, the parties are not in possession of the original 2011 Will. Therefore, the rule that a will's revocation clause does not take effect until it is successfully probated is irrelevant to the present case and a different analysis is required. ¶ 46 An earlier will can be revoked by a revocation clause in a later executed will, and other instruments, or by a physical act of destruction by the testator. 755 ILCS 5/4-7 (West 2016). Thus, in the case of a missing original will, courts presume that the testator physically destroyed the original will with the intent to revoke it. As previously stated there are three factors considered to overcome this presumption. Even if we accepted as true that Irena had access to the original 2011 Will, and potentially hid or destroyed it, and petitioners could demonstrate decedent's unchanged kind and loving attitude towards the proposed beneficiaries, petitioners' claim would nonetheless fail. The test for admitting a will copy only requires a showing that decedent did not intend to change his will, even though it is missing. Correspondingly, if the decedent expressed any statement demonstrating an intent to change his will, the will copy cannot be admitted. ¶ 47 In the present petition and in the earlier proceedings, the parties and court acknowledged the existence of the 2012 Will. The fact that decedent drafted and signed the 2012 Will, which departed significantly from the dispositions provided for under the 2011 Will, shows that the 2011 Will no longer reflected decedent's testamentary intent. Decedent clearly intended to revoke the 2011 Will and petitioners cannot assert otherwise. The fact that the 2012 Will copy was denied admission to probate and was not legally effective has no effect on the expression of decedent's intent at the time he executed the 2012 Will and rejected the terms of the 2011 Will. ¶ 48 Furthermore, although there was testimony that decedent, shortly before his death, intended to revoke his 2012 Will as well, this does not automatically revive the 2011 Will. The 2011 Will was not expressly revived as required by statute, (7555 ILCS 5/4-7(c) (West 2016) ("A will which is totally revoked in any manner is not revived other than by its re- execution or by an instrument declaring the revival and signed and attested in the manner prescribed by this Article for the signing and attestation of a will."), nor did decedent express any interest in reviving the 2011 Will. The testimony only shows that he wanted to discuss, work on, or possibly make a new will. Thus, in the absence of the original 2011 Will, we must enforce the presumption that decedent revoked the 2011 Will. ¶ 49 As pled by petitioners, decedent executed a 2012 Will which provided for the revocation of all prior wills and codicils. This plainly defeats their assertion that decedent had no intent to revoke the 2011 Will. Accordingly, even when viewing all well-pleaded facts and reasonable inferences in favor of petitioners, there cannot be a cause of action to admit the 2011 Will copy into probate.
¶ 50 B. Affirmative Matter
¶ 51 As we have already determined that the petition should be dismissed under section 2-615 for failure to state a claim, we need not reach the arguments on res judicata, law of the case, or collateral estoppel.
¶ 52 III. CONCLUSION
¶ 53 For the reasons stated, we affirm the circuit court's dismissal of the petition to probate the 2011 Will copy. ¶ 54 Affirmed.