                                  Illinois Official Reports

                                          Appellate Court



                        In re Estate of Mondfrans, 2014 IL App (2d) 130205



Appellate Court              In re ESTATE of JEAN MONDFRANS (Conard Mondfrans, as
Caption                      Administrator of the Estate of Harry Mondfrans, Petitioner-Appellant,
                             v. John Collins, as Executor of the Estate of Jean Mondfrans,
                             Respondent-Appellee).



District & No.               Second District
                             Docket No. 2-13-0205



Filed                        March 20, 2014



Held                         In estate proceedings where a petition to renounce decedent’s will was
(Note: This syllabus         filed on behalf of decedent’s spouse, an incompetent who was living
constitutes no part of the   in an assisted living facility, the trial court’s dismissal of the petition
opinion of the court but     was upheld on appeal, notwithstanding the fact that the spouse was not
has been prepared by the     sent notice of the probate of his wife’s will, since decedent’s spouse
Reporter of Decisions        died less than two months after the will was admitted to probate, no
for the convenience of       one notified the executor of decedent’s estate that a guardian had been
the reader.)                 appointed for her spouse in a separate proceeding, under the
                             circumstances, there was no one decedent could notify of the probate
                             proceedings, there was no indication of any concealment of the
                             probate proceedings, and even if decedent’s will had been renounced
                             in a timely manner, the right to renounce, which is intended to provide
                             for a surviving spouse during his or her lifetime, ceased upon the death
                             of decedent’s spouse.




Decision Under               Appeal from the Circuit Court of Kane County, No. 11-P-634; the
Review                       Hon. David R. Akemann, Judge, presiding.
     Judgment                 Affirmed.


     Counsel on               James C. James III, of Alschuler, Simantz & Hem, LLC, of Aurora,
     Appeal                   for appellant.

                              Richard D. Skelton, of R.D. Skelton Ltd., of Geneva, for appellee.




     Panel                    PRESIDING JUSTICE BURKE delivered the judgment of the court,
                              with opinion.
                              Justices McLaren and Schostok concurred in the judgment and
                              opinion.




                                               OPINION

¶1         Jean Mondfrans passed away, leaving a will that did not include any provisions for her
       husband, Harry Mondfrans, who was suffering from dementia and residing in an assisted living
       facility. When Jean’s will was admitted to probate, no notice was sent to Harry, and he died
       less than two months later.
¶2         Conard Mondfrans, Harry’s son, served as his conservator in the probate proceedings on
       Jean’s will and as the administrator of his estate. Conard petitioned to renounce Jean’s will
       under section 2-8 of the Probate Act of 1975 (755 ILCS 5/2-8 (West 2012)). John Collins, the
       executor of Jean’s estate, objected on the ground that the petition was filed after Harry’s death
       and more than seven months after the admission of Jean’s will to probate. The trial court
       sustained the objection and dismissed the petition with prejudice as untimely.
¶3         Conard appeals, arguing that the seven-month limitations period for petitioning to
       renounce a will should not apply and that Harry’s right to renounce Jean’s will should survive
       his death, because Jean’s representatives engaged in “active concealment” of the probate
       proceedings. We affirm. We conclude that, under the undisputed facts of this case, (1) there
       was no concealment of the proceedings and (2) Harry’s statutory right to renounce Jean’s will
       abated upon his death, because the right is purely personal and not intended to benefit Harry’s
       heirs contrary to Jean’s intent. Even if Harry or Conard had petitioned to renounce the will
       while he was alive, his right to renounce would have abated upon his death, because there was
       no concealment.



                                                   -2-
¶4                                         I. BACKGROUND
¶5         The parties do not dispute the salient facts. Jean and Harry were married for 44 years, and
       each had three adult children from prior marriages. Jean’s children, Steven, Randall, and
       Thomas, resided in the western suburbs of Chicago. Harry’s children, Conard, Jan, and Scott,
       resided in California.
¶6         In November 2006, Harry was moved to an assisted living facility because he suffered
       from worsening dementia and needed around-the-clock supervision. Jean visited Harry daily
       and managed his health care and living arrangements. On August 22, 2008, Jean executed a
       will that did not include any provisions for Harry. The will stated that Harry was disabled but
       with sufficient personal assets to maintain his care.
¶7         Jean died unexpectedly on September 28, 2011, at the age of 76. Harry was almost 91 years
       old and suffering from Lewy body dementia, diabetes, atrial fibrillation, and osteoarthritis.
       Harry was mentally incompetent and unable to care for himself. After Jean died, Harry’s
       children considered moving him to California but decided that his assisted living facility was
       providing good care and that Harry should remain there.
¶8         On October 30, 2011, Randall, Jean’s son, contacted Jan, Harry’s daughter, by email and
       told her that probate proceedings would be opened for Jean’s estate. Randall suggested that Jan
       arrange for the appointment of a guardian for Harry so proper notice could be delivered to
       someone acting on Harry’s behalf. Jan replied to the email, writing that she would discuss the
       matter with her siblings.
¶9         On November 20, 2011, James Cooke, the attorney for Jean’s estate, contacted Conard and
       told him that he was preparing to open a probate estate for Jean. Cooke also told Conard that
       steps should be taken to institute guardianship proceedings for Harry because Jean was no
       longer alive to manage his affairs and Harry needed someone to act on his behalf both
       personally and financially.
¶ 10       On December 2, 2011, in a separate proceeding, the trial court appointed a guardian
       ad litem for Harry. No notice of this appointment was provided to any of Jean’s
       representatives.
¶ 11       On December 14, 2011, Collins filed a petition for probate of will and letters testamentary,
       nominating himself as the executor of Jean’s estate. Collins listed as heirs Jean’s three sons, a
       daughter-in-law, and five grandchildren. Harry was omitted from the petition because he was
       incapacitated and could not receive notice. Neither Harry nor any of his children was served
       notice of the probate proceedings.
¶ 12       On December 15, 2011, the trial court admitted Jean’s will to probate and appointed
       Collins executor of Jean’s estate. Harry was identified in the affidavit of heirship as the
       surviving spouse.
¶ 13       In Harry’s guardianship proceeding, the guardian ad litem indicated in his report that, on
       December 19, 2011, he was informed of the probate proceedings. Additional notice of the
       opening of Jean’s probate estate was provided by publication in a newspaper of general
       circulation in Kane County on December 29, 2011, and for three weeks thereafter.
¶ 14       On January 26, 2012, Conard was appointed Harry’s guardian in the probate proceedings.
       Less than two weeks later, on February 8, 2012, Harry died. Fifty-six days had elapsed since
       Jean’s will was admitted to probate.
                                                   -3-
¶ 15       On March 22, 2012, Conard was appointed the administrator of Harry’s estate, and he
       acted as his conservator in the probate proceedings on Jean’s will. On August 16, 2012, Conard
       petitioned for renunciation of Jean’s will under section 2-8 of the Probate Act. Section 2-8(a)
       provides in relevant part that “[i]f a will is renounced by the testator’s surviving spouse,
       whether or not the will contains any provision for the benefit of the surviving spouse, the
       surviving spouse is entitled to the following share of the testator’s estate after payment of all
       just claims: • of the entire estate if the testator leaves a descendant.” 755 ILCS 5/2-8(a) (West
       2012).
¶ 16       Conard also petitioned for a surviving spouse’s award from Jean’s estate (see 755 ILCS
       5/15-1(a) (West 2012)). The parties settled the surviving spouse claim, which is not at issue in
       this appeal.
¶ 17       On October 3, 2012, Collins filed an objection to the petition for renunciation of Jean’s
       will, arguing that the petition was improper under section 2-8(b) because it was filed after
       Harry’s death and more than seven months after Jean’s will was admitted to probate. Section
       2-8(b) provides as follows:
                “In order to renounce a will, the testator’s surviving spouse must file in the court in
                which the will was admitted to probate a written instrument signed by the surviving
                spouse and declaring the renunciation. The time of filing the instrument is: (1) within 7
                months after the admission of the will to probate or (2) within such further time as may
                be allowed by the court if, within 7 months after the admission of the will to probate or
                before the expiration of any extended period, the surviving spouse files a petition
                therefor setting forth that litigation is pending that affects the share of the surviving
                spouse in the estate. The filing of the instrument is a complete bar to any claim of the
                surviving spouse under the will.” (Emphases added.) 755 ILCS 5/2-8(b) (West 2012).
¶ 18       On January 17, 2013, the trial court sustained the objection and dismissed with prejudice
       the petition to renounce Jean’s will. The court rendered its decision based on the arguments of
       counsel because neither side sought an evidentiary hearing. This timely appeal followed.

¶ 19                                         II. ANALYSIS
¶ 20       Section 2-8 of the Probate Act prescribes the procedure for a surviving spouse to renounce
       a will. However, section 2-8 does not specify a standard of review when the trial court denies
       such a renunciation.
           In this case, Conard argues–and Collins does not dispute–that the trial court’s dismissal
       with prejudice of the renunciation petition is like the dismissal of a civil complaint under
       section 2-619(a) of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)). The court
       did not conduct an evidentiary hearing but rather sustained the objection based on certain
       undisputed facts. The parties essentially agree that the dismissal is subject to the de novo
       standard of review. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009) (a motion to
       dismiss under section 2-619(a) admits the legal sufficiency of the complaint, but asserts
       affirmative matter outside the complaint that defeats the cause of action). Conard argues that
       (1) the renunciation petition was timely and (2) Harry’s right to renounce the will survived his
       death.


                                                   -4-
¶ 21                         A. Alleged Concealment of Probate Proceedings
¶ 22       Conard admits that the petition to renounce Jean’s will was filed more than seven months
       after the will was admitted to probate. However, Conard argues that Collins should be
       estopped from asserting section 2-8(b)’s seven-month limitations period, because “the failure
       to provide any notice to Harry of the probate of Jean’s new will effectively tolled the
       seven-month filing requirement.” Conard asserts, and Collins does not dispute, that Collins
       failed to send Conard or Harry any documentation of the admission to probate of Jean’s will or
       any indication that Jean’s will did not contain any provisions for Harry.
¶ 23       Conard argues that, after Collins omitted Harry from the petition to admit the will to
       probate, Collins violated section 6-11(a) of the Probate Act by failing to file an amended
       petition and mail the amended petition to Harry. See 755 ILCS 5/6-11(a) (West 2012) (“If it
       appears after entry of an order admitting or denying admission of a will to probate that an heir
       or legatee was omitted from the petition to admit the will to probate or, if included in the
       petition, that notice to him was not mailed or published as provided in Section 6-10 or 6-20,
       whichever is applicable, and that no waiver of notice was filed by the omitted or unnotified
       heir or legatee, an amended petition shall be filed under Section 6-2 or 6-20 which shall
       include the omitted or unnotified heir or legatee.”). Conard contends that, if Harry had been
       sent notice, he or his representative would have had time to act upon the knowledge that Jean
       executed a new will that disinherited him.
¶ 24       Conard also argues that Collins violated the Probate Act’s provisions regarding the
       appointment of a fiduciary for Harry to represent him in the probate proceedings. 755 ILCS
       5/6-2 (West 2012) (unless supervised administration is requested, a petition to admit a will to
       probate must state the name and address of any personal fiduciary); see also 755 ILCS 5/6-12,
       28-3 (West 2012) (appointment of guardian ad litem and protection of persons under disability
       during independent administration). Conard asserts that, because Harry was not properly
       identified as an heir, these protections were not invoked for Harry’s benefit and therefore
       principles of equitable tolling should allow the petition to renounce to be filed more than seven
       months after Jean’s will was admitted to probate. We disagree.
¶ 25       “Generally, the doctrine of equitable tolling permits a court to excuse a plaintiff’s failure to
       comply with a statute of limitations where ‘because of disability, irremediable lack of
       information, or other circumstances beyond his control,’ the plaintiff cannot reasonably be
       expected to file suit on time.” Williams v. Board of Review, 241 Ill. 2d 352, 360 (2011)
       (quoting Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996)). Equitable tolling requires a
       showing of due diligence on the part of the plaintiff. Williams, 241 Ill. 2d at 372. “Due
       diligence is a ‘fact-specific inquiry, guided by reference to the hypothetical reasonable
       person[ ]’ ***.” Williams, 241 Ill. 2d at 372 (quoting Former Employees of Siemens
       Information Communication Networks, Inc. v. Herman, 24 Ct. Int’l Trade 1201, 1208 (2000)).
       However, “where the evidence leaves no room for a reasonable difference of opinion, the court
       may properly resolve such issues as a matter of law.” Mackereth v. G.D. Searle & Co., 285 Ill.
       App. 3d 1070, 1077 (1996).
¶ 26       Under the undisputed facts of this case, we conclude that Harry’s representatives did not
       exercise due diligence in preserving Harry’s right to renounce Jean’s will. Conard admits that
       the affidavit of heirship identifies Harry as the surviving spouse. Moreover, Conard does not
       dispute that Cooke and Randall informed Harry’s family of the probate proceedings before
                                                    -5-
       Harry died. After Jean died on September 28, 2011, Randall informed Jan on October 30,
       2011, that probate proceedings would be opened for Jean’s estate. Randall specifically
       mentioned the need to appoint a guardian for Harry so proper notice could be served. Then, on
       November 20, 2011, that information was reiterated when Cooke notified Conard that he was
       preparing to initiate probate proceedings and that a guardian should be appointed for Harry.
¶ 27       On December 2, 2011, two weeks before Jean’s will was admitted to probate, the trial court
       appointed a guardian ad litem for Harry. However, the guardianship case was separate from the
       probate proceedings, and no notice of the appointment was delivered to Collins. Regardless,
       the guardian ad litem and Conard had time to preserve Harry’s right to renounce Jean’s will
       while he was alive.
¶ 28       We reject Conard’s claim that the absence of notice under section 6-11 of the Probate Act
       amounts to concealment. When Jean’s will was admitted to probate, Harry was incompetent,
       he did not have a guardian in those proceedings, and no one notified Collins that a guardian
       ad litem had been appointed for Harry in a separate proceeding. Thus, there was no one for
       Collins to notify under section 6-11.

¶ 29                                     B. The Right to Renounce
¶ 30       In a related argument, Conard contends that Harry’s right to renounce the will under
       section 2-8 survived his death. Rock Island Bank & Trust Co. v. First National Bank of Rock
       Island, 26 Ill. 2d 47 (1962), is the seminal case interpreting section 2-8(b). In Rock Island, a
       husband died, and the administrator of an incompetent wife attempted to renounce the
       husband’s will after the wife died. Rock Island, 26 Ill. 2d at 48.
¶ 31       The Rock Island court noted the majority rule that the right to renounce is statutory and
       personal and dies with the surviving spouse, regardless of competency. Rock Island, 26 Ill. 2d
       at 51. The court stated that there was no logical reason for an incompetent spouse or the
       spouse’s representative to have any greater renunciation right than a competent spouse. The
       court emphasized that the statute does not allow renunciation after the death of either a
       competent or an incompetent spouse, which indicates that the right to renounce is purely
       personal. If the legislature had so intended, it easily could have provided expressly that the
       right to renounce should continue after the death of the surviving spouse. The court concluded
       that the legislature intended to provide for the personal welfare of the surviving spouse during
       his or her lifetime and that the needs for the surviving spouse’s comfort cease upon his or her
       death. Rock Island, 26 Ill. 2d at 51-52.
¶ 32       The court additionally remarked that the statute did not mention the interest of prospective
       heirs or others who may take after the death of the surviving spouse. Rock Island, 26 Ill. 2d at
       52. “Any renunciation tends to defeat the intention of the testator, and it is our opinion that
       under the Illinois statute on renunciation the benefits to parties in interest other than the
       surviving spouse personally cannot be considered.” Rock Island, 26 Ill. 2d at 52. The court
       determined that it could discern little equity in providing for the heirs of a surviving spouse in
       opposition to the wishes and the will of the testator. Rock Island, 26 Ill. 2d at 52; see also
       Kinnett v. Hood, 25 Ill. 2d 600, 603 (1962) (the interest of the heirs of the surviving
       incompetent spouse should not be considered, because the renunciation statute is for the
       benefit of the incompetent spouse).

                                                   -6-
¶ 33        Our supreme court adopted “the majority rule that the right to renounce a will is personal
       and dies with the surviving spouse regardless of her incompetency, in the absence of fraud,
       concealment, or conflicting interest of her representative.” Rock Island, 26 Ill. 2d at 52-53; see
       also Andrykowski v. Theis, 40 Ill. App. 2d 182, 193 (1963) (the question of fraud, concealment,
       or conflicting interest can be raised only in cases where an incompetent attempts to assert the
       right of renunciation). Accordingly, the Rock Island court upheld the denial of the petition to
       renounce the will.
¶ 34        We followed Rock Island in deciding In re Estate of Thompson, 131 Ill. App. 3d 544
       (1985). In Thompson, a husband and wife were involved in a divorce proceeding. The husband
       executed his last will and testament, which did not include any provisions for his wife.
       Thompson, 131 Ill. App. 3d at 544-45. About a month later, both died when the husband
       allegedly shot his wife and then shot himself. The wife outlived her husband by 45 minutes.
¶ 35        Within seven months of the admission of the husband’s will to probate, the administrator of
       the wife’s estate petitioned to renounce the husband’s will. The trial court denied the petition.
¶ 36        On appeal, the administrator argued that the wife’s estate had the right to renounce because
       the husband took her life, thereby preventing her from renouncing the will during her lifetime.
       Thompson, 131 Ill. App. 3d at 546-47. The administrator argued that public policy demands
       that a surviving spouse, such as the wife, not be precluded from renouncing a will after her
       death where she is murdered by the testator spouse. This court concluded that the rationale of
       Rock Island barred renunciation, because the wife’s heirs were the only persons who would
       benefit from allowing renunciation of the husband’s will. Thompson, 131 Ill. App. 3d at 547.
¶ 37        We further noted that the record on appeal contained no facts admitted into evidence that
       substantiated the claims of either murder or intentional and unjustifiable death. The executor of
       the husband’s estate denied the allegations and no proof on the issue was adduced at the
       hearing. Noting that the wife’s administrator, as the appellant, bore the responsibility to see
       that the record on appeal was complete, we declined to speculate about what transpired to
       cause the husband and wife to be found dead and dying from gunshot wounds. Thompson, 131
       Ill. App. 3d at 547.
¶ 38        Conard argues that Harry’s right to renounce the will under section 2-8 survived his death,
       because “the failure to provide any notice to Harry fits the Rock Island exception of
       concealment so as to allow the renunciation right to survive the death of the disabled surviving
       spouse.” In sustaining the objection to the renunciation petition, the trial court concluded that
       Rock Island and Thompson compelled dismissal with prejudice and that the exceptions set
       forth in Andrykowski do not apply. We agree with the trial court.
¶ 39        In Thompson there were no facts admitted into evidence that substantiated the claims of
       either murder or intentional and unjustifiable death. Similarly, as noted, the undisputed facts in
       this case do not establish any concealment of the probate proceedings. As discussed, the
       affidavit of heirship identifies Harry as the surviving spouse, and Randall and Cooke informed
       Jan and Conard, respectively, that probate proceedings would be opened for Jean’s estate and
       that Harry needed a legal guardian for proper service.
¶ 40        The legislature intended to provide for the personal welfare of the surviving spouse during
       that person’s lifetime, and the needs for Harry’s comfort ceased upon his death. See Rock
       Island, 26 Ill. 2d at 51-52. In the absence of concealment, the right to renounce was purely

                                                   -7-
       personal to Harry and died with him, because section 2-8 does not allow renunciation after the
       death of either a competent or an incompetent spouse. See Rock Island, 26 Ill. 2d at 51-52.
¶ 41       On the undisputed facts, we conclude that the trial court did not err in dismissing with
       prejudice Conard’s petition to renounce Jean’s will. Our conclusion obviates the need to
       address Collins’s remaining argument that, even if the petition had been timely, renunciation
       would be inappropriate because Harry had sufficient personal funds to provide for his personal
       welfare during the short period he outlived Jean.

¶ 42                                       III. CONCLUSION
¶ 43       We hold that the trial court properly dismissed with prejudice the petition to renounce
       Jean’s will, on the grounds that the petition was filed after Harry’s death and more than seven
       months after the will was admitted to probate. For the reasons stated, we affirm the judgment
       of the circuit court of Kane County dismissing the petition to renounce Jean’s will.

¶ 44      Affirmed.




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