                             2017 IL App (2d) 160723
                                  No. 2-16-0723
                           Opinion filed August 28, 2017
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

In re ESTATE OF KRZYSZTOF                 ) Appeal from the Circuit Court
JAGODOWSKI, a/k/a                         ) of Du Page County.
Christopher Jagodowski, Deceased          )
                                          ) No. 16-P-100
                                          )
(Joanna Ungstad, Petitioner and           )
Counterrespondent-Appellee, v. Boguslaw   ) Honorable
Malara, Respondent and Counterpetitioner- ) Robert G. Gibson,
Appellant).                               ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SPENCE delivered the judgment of the court, with opinion.
       Justices Hutchinson and Birkett concurred in the judgment and opinion.

                                           OPINION

¶1     This appeal presents two certified questions that arise from a dispute over the estate of

Krzysztof Jagodowski, a/k/a Christopher Jagodowski, who died intestate on January 23, 2016.

Boguslaw Malara, the administrator of Christopher’s estate, moved to establish heirship by

arguing that Joanna Ungstad was not Christopher’s biological daughter. The trial court denied

his motion, finding that Boguslaw lacked standing to challenge Christopher’s parentage and that

the challenge was otherwise time-barred.

¶2     Thereafter, the trial court certified two questions pursuant to Illinois Supreme Court Rule

308 (eff. Jan. 1, 2016). The first question asks us to determine whether the limitations periods
2017 IL App (2d) 160723


under the Illinois Parentage Act of 2015 (Parentage Act) (750 ILCS 46/205 (West Supp. 2015))1

apply in a probate proceeding, and the second asks whether the administrator of an estate has

standing to maintain a proceeding to adjudicate the nonexistence of a parent-child relationship.

We answer the first question in the affirmative, concluding that the Parentage Act applies to a

parentage challenge in a probate proceeding. We decline to answer the second question and

instead reverse the trial court order’s order and remand for further proceedings consistent with

this opinion.

¶3                                     I. BACKGROUND

¶4     The pertinent facts begin in May 1982, when Christopher married Ilona Padolski. While

Christopher and Ilona were married, Ilona gave birth to Joanna Ungstad (née Jagodowski) on

July 30, 1984. The couple divorced in 1991, and Joanna moved with Ilona to Canada, where

they lived with Ilona’s new husband. Christopher consistently paid his obligated child support

for Joanna, until she turned 18.

¶5     On January 23, 2016, Christopher died intestate. Thereafter, Stanislowa Jagadowski,

Christopher’s mother, and Barbara Jagadowski, his sister, moved for a temporary injunction to

prevent the cremation of Christopher’s body, in order to obtain samples for genetic testing. The

trial court granted the temporary injunction, and samples were retained.

¶6     On February 1, 2016, Joanna filed a petition for letters of administration, requesting to

serve as independent administrator of Christopher’s estate. On February 10, 2016, Boguslaw,

       1
           We cite the version of the Parentage Act effective from January 1, 2016, to December

31, 2016. However, unless noted, the relevant portions of the Parentage Act that we cite remain

the same or substantially the same in the amended version effective January 1, 2017. See Pub.

Act 99-769, § 5 (eff. Jan. 1, 2017) (amending various sections of the Parentage Act).



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2017 IL App (2d) 160723


Christopher’s cousin, filed a counterpetition for letters of administration. Around March 1,

2016, Boguslaw moved to dismiss Joanna’s petition on the basis that Joanna was not a United

States resident. He argued that she was a Canadian resident and therefore did not meet the

requirements of section 9-1 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/9-1 (West

2016)) to serve as administrator of Christopher’s estate. On April 26, 2016, the court granted

Boguslaw’s motion to dismiss Joanna’s petition and it appointed Boguslaw as the supervised

administrator of Christopher’s estate.

¶7     On March 1, 2016, Boguslaw filed a motion to establish heirship, arguing that Joanna

was not Christopher’s biological or adopted daughter and that Christopher’s heirs were

Stanislowa and Barbara. He attached an affidavit of heirship stating the same, and the motion

requested DNA testing. Boguslaw acknowledged that Joanna was born to Ilona while she was

married to Christopher, but he contended that Joanna had “much darker skin” and “Asian facial

features.”   He also alleged that Stanislowa had heard from a third party that Joanna was not

Christopher’s biological child. Joanna responded that Boguslaw lacked standing to challenge the

existence of a parent-child relationship and that, nevertheless, any such challenge was time-

barred by the Parentage Act.

¶8     On June 30, 2016, the trial court heard oral argument on the motion to establish heirship.

After argument, the court asked whether the parties, regardless of its ruling, would be willing to

submit Rule 308 certified questions to the appellate court. The court then denied Boguslaw’s

motion to establish heirship, including his request for DNA testing. In reaching its decision, the

court considered that Joanna’s birth certificate listed Christopher as her father; that Joanna was

now 31 years old and Christopher had paid all due child support; and that there were at least

“some indicia of parenthood” in the record. The court explicitly denied Boguslaw’s motion “on



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2017 IL App (2d) 160723


the basis of both standing and the statute of limitations.” The court thereafter entered a written

order denying the motion for the reasons stated on the record.

¶9      On August 3, 2016, the trial court entered an order certifying two questions to the

appellate court. The questions were:

               “1.   Whether the statute of limitations period(s) prescribed in the Illinois

        Parentage Act of 2015, 750 ILCS 46/101 et seq. applies to the adjudication of parentage

        in a probate proceeding to determine heirship pursuant to the Illinois Probate Act, 755

        ILCS 5/1-1 et seq., or whether in such a proceeding the statute of limitations under the

        Illinois Probate Act, 755 ILCS 5/1-1 et seq. applies? and

               2. Does the court appointed administrator of a probate estate who is not the child,

        a parent or a person presumed to be a parent have standing when pursuing a

        determination of heirship to petition the court to adjudicate the non-existence of a parent-

        child relationship between decedent and decedent’s purported heir including using the

        mechanism of DNA testing found in the Illinois Parentage Act of 2015, 750 ILCS 46/101

        et seq.?”

¶ 10    Boguslaw timely petitioned for leave to appeal pursuant to Rule 308, and we granted his

petition.

¶ 11                                     II. ANALYSIS

¶ 12    Our review of certified questions on permissive interlocutory appeal is governed by Rule

308. See Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 57 (2007). Certified questions

under Rule 308 present issues of law, and therefore our review is de novo. Dale v. South Central

Illinois Mass Transit District, 2014 IL App (5th) 130361, ¶ 11.




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2017 IL App (2d) 160723


¶ 13   Generally, an appeal pursuant to Rule 308 is limited to the questions identified by the

trial court, and we will not expand the appeal to encompass other matters that could have been

included. Blackshare v. Banfield, 367 Ill. App. 3d 1077, 1079 (2006). However, in the interests

of judicial economy and reaching an equitable result, our review is not confined to the limits of

the certified questions. Cincinnati Insurance Co. v. Chapman, 2012 IL App (1st) 111792, ¶ 24

(where the most appropriate answer to the certified question was “maybe,” due to the question’s

inadequate wording, it was appropriate to review the record and the underlying order);

Stonecrafters, Inc. v. Wholesale Life Insurance Brokerage, Inc., 393 Ill. App. 3d 951, 957 (2009)

(when necessary, we may go beyond the certified questions to consider the substantive issues

and the appropriateness of the order giving rise to the appeal). In this case, we believe that it is

necessary to consider the appropriateness of the underlying order denying the motion to

determine heirship, in the interests of judicial economy and reaching an equitable result. In

reviewing the underlying order, we remain consistent with the practice of this court. See Fosse

v. Pensabene, 362 Ill. App. 3d 172, 190 (2005) (declining to answer one of the certified

questions and reversing the underlying order); P.J.’s Concrete Pumping Service Inc. v. Nextel

West Corp., 345 Ill. App. 3d 992, 998-99 (2004).

¶ 14   Finally, our answers to the certified questions require statutory construction.        “The

fundamental rule of statutory construction is to ascertain and give effect to the intent of the

legislature,” and the best indicator of legislative intent is the language in the statute itself,

accorded its plain and ordinary meaning. Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1, 6 (2009).

We address each question in turn.

¶ 15                          A. First Question: Limitations Periods




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2017 IL App (2d) 160723


¶ 16   Before addressing the parties’ arguments, we begin by reviewing the relevant provisions

of the Parentage Act. Section 204 of the Parentage Act provides for various presumptions of

parentage, including that a person is a presumed parent of a child if that person and the mother of

the child were married when the child was born. 750 ILCS 46/204(a)(1) (West Supp. 2015).

Here, the parties do not dispute that Joanna was born while Christopher was married to Ilona and

that therefore Christopher is her presumed father.

¶ 17   A petitioner may challenge a presumption of parentage pursuant to section 205 of the

Parentage Act, subject to specified limitations. Section 205(a) permits the child, the mother, or a

presumed parent as established under section 204 to pursue a proceeding to declare the

nonexistence of a parent-child relationship. 750 ILCS 46/205(a) (West Supp. 2015). Under

section 205(b), that proceeding must be brought no later than two years after the petitioner knew

or should have known the relevant facts, although the two-year limitations period shall not

extend beyond the date that the child reaches age 18. 750 ILCS 46/205(b) (West Supp. 2015).

¶ 18   While sections 204 and 205 provide presumptions of parentage and limitations on

challenges to an existing parent-child relationship, section 601 of the Parentage Act authorizes a

proceeding to adjudicate parentage of a child generally. 750 ILCS 46/601 (West Supp. 2015).

Section 602 delineates who may petition to adjudicate parentage, and, unlike one under section

205, a section 601 proceeding may be brought by parties other than the mother, the child, or the

presumed or adjudicated father. 750 ILCS 46/602 (West Supp. 2015). Specifically, section 602

provides that, subject to the limitations of sections 607, 608, and 609 of the Parentage Act, the

following may maintain a proceeding to adjudicate parentage:

               “(a) the child;

               (b) the mother of the child;



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2017 IL App (2d) 160723


              (c) a pregnant woman;

              (d) a man presumed or alleging himself to be the parent of the child;

              (e) a woman presumed or alleging herself to be the parent of the child;

              (f) the support-enforcement agency or other governmental agency authorized by

       other law;

              (g) any person or public agency that has custody of, is providing financial support

       to, or has provided financial support to the child;

              (h) the Department of Healthcare and Family Services ***;

              (i) an authorized adoption agency or licensed child-placing agency;

       (j) a representative authorized by law to act for an individual who would otherwise be

       entitled to maintain a proceeding but who is deceased, incapacitated, or a minor; or

              (k) an intended parent ***.” (Emphasis added.) Id.

¶ 19   A proceeding to adjudicate parentage under section 602 is limited depending upon

whether the child has a presumed parent. Under section 607, a child without a presumed,

acknowledged, or adjudicated parent may commence a proceeding at any time, even after

becoming an adult. 750 ILCS 46/607 (West Supp. 2015). If the child has a presumed father,

however, a proceeding to declare the nonexistence of the parent-child relationship between the

child and the presumed father may be maintained at any time, but only by a person described

under section 204(a)(1)-(4) of the Parentage Act (750 ILCS 46/204(a)(1)-(4) (West Supp. 2015))

and only if the court determines that the presumed father and the mother of the child neither

cohabitated nor engaged in sexual intercourse with each other during the probable time of

conception. 750 ILCS 46/608(b) (West Supp. 2015).




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2017 IL App (2d) 160723


¶ 20   With these provisions in mind, we turn to the parties’ arguments. Boguslaw contends

that the Probate Act applies to a motion to determine heirship and that any limitations period

under the Parentage Act is inapplicable to such a motion. He cites In re Estate of Poole, 207 Ill.

2d 393 (2003), to support his position. He contends that the Poole court “really meant that DNA

testing under the Parentage Act, but not the strict application of the Parentage Act, should be

applied to probate issues to determine heirship.” At the same time, Boguslaw emphasizes that

heirship was not an issue before the Poole court. Rather, he argues, the Poole decision was

limited to how the mechanisms of the Parentage Act help determine preference for letters of

administration. He urges us to follow Poole in limiting the application of the Parentage Act to

simply allow DNA testing to determine whether Joanna is Christopher’s biological daughter,

“without applying the Parentage Act per se,” that is, without applying its limitations periods.

¶ 21   Boguslaw continues that heirship can be conclusively decided only after the death of a

decedent. He argues that, if the Parentage Act limitations periods were applied here, then

heirship would have been “conclusively determined at the point in time where Joanna became 21

years old”—a whole decade before Christopher’s death. He argues that this would be an absurd

result, inconsistent with legislative intent. Boguslaw directs us to section 205 of the Parentage

Act, which provides that an action to declare the nonexistence of a parent-child relationship must

be brought within two years of when the petitioner “knew or should have known of the relevant

facts.” 750 ILCS 46/205(b) (West Supp. 2015). He argues that the Illinois public policy behind

the Parentage Act—to protect every minor child’s right to physical, emotional, and financial

support—demonstrates that section 205 was not intended to be applied to a probate matter. He

concludes that, because this action does not concern child support, the Parentage Act is

inapplicable. Moreover, Boguslaw argues that a contrary interpretation, applying any of the



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2017 IL App (2d) 160723


Parentage Act’s limitations periods, would impermissibly negate parts of the Probate Act. In

particular, he warns that strict application of the Parentage Act would nullify the limitations

period under section 5-3(a) of the Probate Act. 2

¶ 22   Asserting that this is a matter of first impression in Illinois, Boguslaw cites decisions

from other jurisdictions for guidance to argue that the Parentage Act’s limitations periods should

not apply to a determination of heirship.    In particular, he directs us to New Jersey, Missouri,

and Colorado. In Wingate v. Estate of Ryan, 693 A.2d 457, 459 (N.J. 1997), the New Jersey

Supreme Court addressed the interplay between the New Jersey Parentage Act (N.J. Stat. Ann. §

9:17-38 et seq. (West 1994)) and the Act for the Administration of Estates—Decedents and

Others (New Jersey Probate Code) (N.J. Stat. Ann. § 3B:1-1 et seq. (West 1994)). There,

Wingate sought to establish that the deceased, Ryan, was her father, after the 23-year limitations

period to establish parentage under the New Jersey Parentage Act had passed. Wingate, 693

A.2d at 458. For most of her life, Wingate believed that she was the biological child of another

man, but 10 days before Ryan’s death, her mother told her that Ryan was her biological father.

Id. at 459. The trial court denied the estate’s motion to dismiss based on the limitations period,

but the appellate court reversed. Id. at 458-59.

¶ 23   The New Jersey Supreme Court reversed the appellate court, holding that the limitations

period under the New Jersey Parentage Act did not apply to claims filed under the New Jersey

       2
           Section 5-3(a) provides:

                “The court may ascertain and declare the heirship of any decedent to be entered of

       record in the court at any time during the administration of the estate without further

       notice or, if there is no grant of administration, upon such notice and in such manner as

       the court directs.” 755 ILCS 5/5-3(a) (West 2016).



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2017 IL App (2d) 160723


Probate Code. Id. at 459. The court explained that the Parentage Act and the Probate Code

served different purposes and that these different purposes helped explain why the legislature

provided a separate limitations period for each. Id. at 463. Importantly, the Parentage Act

provided that it did not affect the time within which an heirship claim must be filed. Id. at 464.

¶ 24   Boguslaw argues that the facts here are similar to the facts of Wingate, in that he is

seeking to establish parentage (or lack thereof), outside the limitations periods of the Parentage

Act, for purposes of determining heirship. He also contends that the public policy behind the

Parentage Act is similar to that behind the New Jersey Parentage Act, because both are

concerned primarily with child support, which is not at issue during probate.

¶ 25   Boguslaw next cites In the Matter of Nocita, 914 S.W.2d 358 (Mo. 1996) (en banc),

asserting that its holding is consistent with Wingate. In Nocita, Anthony Mahon sought to

establish that he was Carl Nocita’s sole child after Carl died intestate. Id. at 358. Carl’s family

asserted that, in order for Anthony to inherit as an illegitimate child, he was required to establish

paternity within the limitations period of the Missouri Parentage Act (Mo. Rev. Stat. § 210.828

(1990)), before he turned 18 years old. Nocita, 914 S.W.2d at 358. He had not done so, and

therefore, they argued, he could not inherit. Anthony countered that the limitations period of the

Missouri Probate Code (Mo. Rev. Stat. § 474.010 et seq. (1990)) controlled and that it allowed

an action to establish parentage within six months of the first publication of the letters of

administration for the estate. Id. at 358-59. The trial court found that the Parentage Act did not

bar Anthony from seeking to establish paternity. Id. at 358. The supreme court affirmed,

reasoning that the legislature passed the Parentage Act without conforming it to the preexisting

Missouri Probate Code and that therefore it did not intend to make the Parentage Act the

exclusive means to establish paternity for purposes of probate. Id. at 359. The supreme court



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2017 IL App (2d) 160723


relied on the plain language of the Probate Code, which provided that Anthony had six months

from the start of probate to establish paternity for purposes of intestate succession. Id.

¶ 26   Finally, Boguslaw directs us to Lewis v. Schneider, 890 P.2d 148 (Colo. App. 1994),

arguing again that the similar fact pattern demonstrates that the Parentage Act’s limitations

periods should not control in this case. In Lewis, Charles Schneider died intestate. Id. at 149.

Before Charles’s death, he acknowledged that he was Connie Lewis’s biological father.

Connie’s parents, Vincent and Dorothy Macrander, also acknowledged his paternity, and DNA

tests performed after his death confirmed it. Id. Connie filed a petition to declare herself

Charles’s heir, and the trial court held that she was entitled to inherit as an heir. Id. On appeal,

the estate argued that the trial court erred in allowing Connie to establish paternity outside the

limitations period of Colorado’s Parentage Act (Colo. Rev. Stat. § 19-4-107(1)(b) (1993)).

Lewis, 890 P.2d at 150. In particular, the estate argued that Connie had been required to

demonstrate, within five years of being born, that Vincent was not her biological father. The

appellate court was unpersuaded, reasoning in pertinent part that the specific provision of the

Colorado Probate Code controlled, not the more general provision of the Parentage Act. Id. at

150-51. In particular, section 15-11-109 of the Probate Code allowed a child born out of

wedlock to establish paternity after the death of the father. Id. at 151.

¶ 27   Joanna responds that the Parentage Act is the appropriate statutory mechanism for

determining parentage, including during probate. In Poole, the Illinois Supreme Court looked to

the Parentage Act to establish whether there was a parent-child relationship between the

petitioner and a stillborn child, for purposes of determining whether the petitioner had priority

under the Probate Act to serve as administrator of the child’s estate. Poole, 207 Ill. 2d at 404.

The supreme court reasoned that the Probate Act did not define the term “parents” or provide a



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2017 IL App (2d) 160723


way to determine who was a legal parent of a child, and it therefore turned to the Parentage Act

for guidance. Id. at 403. It explained that the Parentage Act applied to “any civil action *** if

parentage is at issue.”     Id.   Joanna contends that Boguslaw’s interpretation—that Poole

authorized only DNA testing under the Parentage Act in probate proceedings but excluded its

other provisions, such as limitations periods—is unfounded.        The Poole court applied the

Parentage Act to determine the parent-child relationship, and the right to inherit under the

Probate Act derived from that relationship.

¶ 28   Joanna continues that, pursuant to section 205(b) of the Parentage Act, Boguslaw is time-

barred from challenging her parent-child relationship with Christopher. Christopher was her

presumed father, and therefore, pursuant to section 205(b), Boguslaw had two years from the

time he knew or should have known the relevant facts to initiate an action to declare the

nonexistence of the parent-child relationship. 3 Section 205(b) also imposed an absolute time bar

to such an action after Joanna reached age 18. Joanna stresses that Christopher never sought to

adjudicate paternity during his lifetime, which speaks to his intent and to his relationship with

her.

¶ 29   Joanna also disagrees that applying the Parentage Act would lead to the absurd result of

determining Christopher’s heirs before his death. Rather, she argues, a living person has no heirs

and Joanna’s status as Christopher’s daughter did not confer her status as his heir until after his

death. Had she predeceased Christopher, she would not have been his heir, and any share of the

estate she would have been entitled to would have flowed to Christopher’s living heirs according

to the Probate Act. Any concern that a child would be unable to assert her status as an heir is

       3
           Joanna acknowledges a “minor exception outlined in 750 ILCS [46/]608(b)” to section

205(b)’s limitations period.



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2017 IL App (2d) 160723


unfounded, because section 607 of the Parentage Act allows a child to adjudicate parentage

without any time limitation. Further, Joanna argues that any limitations period arising under the

Parentage Act does not nullify section 5-3(a) of the Probate Act. Section 5-3(a) is not a statute

of limitations; it merely allows a court to declare heirship at any point in the administration of an

estate. See 755 ILCS 5/5-3(a) (West 2016).

¶ 30   Turning to Boguslaw’s foreign case law, Joanna argues that it does not support a holding

that the Parentage Act’s limitations periods are inapplicable here. Rather, those cases addressed

attempts to establish parentage during probate, whereas here Boguslaw attempted to disestablish

parentage. Addressing the holding in Wingate, Joanna directs us to In re Trust Created by

Agreement Dated December 20, 1961, 765 A.2d 746 (N.J. 2001). There, the New Jersey

Supreme Court clarified that Wingate, along with the New Jersey Parentage Act and Probate

Code, “apply principally to parties seeking to establish or confirm their parentage, as opposed to

those seeking to defeat the established parentage of others.” Id. at 755. The court explicitly

rejected the proposition that, because a potential heir could contest a will or trust during a

probate proceeding, a third party could collaterally attack a parentage adjudication made prior to

probate. Id. at 754. Joanna argues that Lewis and Nocita likewise fall into this distinguishable

fact pattern of a third party attacking parentage, as opposed to a potential heir seeking to

establish parentage.

¶ 31    Joanna instead directs us to case law from Nevada and Minnesota, where those states

applied their respective parentage acts in probate proceedings. In In re Estate of Murray, 344

P.3d 419, 420 (Nev. 2015), Robert Murray died intestate. Robert was survived by two siblings

and by Joyce Slaughter, who sought to establish that she was his daughter. Id. When Joyce was

born, Robert was 17 years old and he was unable to marry Joyce’s mother without parental



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2017 IL App (2d) 160723


consent. He did not marry her mother until he was 19. Id. Robert never formally established

paternity of Joyce nor challenged his status as her father. Id. Robert’s obituary identified Joyce

as his sole child, and she arranged and paid for his funeral services. Id. A few months after

Robert’s death, his siblings filed a petition for appointment as special administrators of his estate.

Id. Their petition identified Joyce as Robert’s “stepdaughter.” Id. Joyce challenged their

appointments, and the trial court found that she was entitled to administer Robert’s estate. Id. at

421. On appeal, the Nevada Supreme Court affirmed, holding that the siblings lacked standing

and were time-barred from challenging Joyce’s parentage under the Nevada Parentage Act. Id.

at 424.   It reasoned that the legislature, by failing to adopt any independent means for

determining parentage for inheritance purposes, intended the Nevada Parentage Act to apply. Id.

at 422-23. Joanna argues that Murray is analogous to this case because it addressed a similar

factual scenario under a similar statutory framework.

¶ 32   Moving to Minnesota, Joanna cites In re Estate of Jotham, 722 N.W.2d 447 (Minn.

2006), arguing that its facts are “strikingly similar to the present case.” In Jotham, the decedent,

Leonard Jotham, married Margaret Jotham in 1942. Id. at 449. Margaret had a child, Diann

Nelson, during the marriage. Shortly thereafter, Leonard divorced Margaret, and 279 days after

the judgment of divorce, Margaret gave birth to Sandra Barnett. Id. Leonard died intestate, and

Margaret sought appointment as the administrator of his estate, designating Diann and Sandra as

his daughters. Id. Diann objected to the petition, arguing that Leonard was not Sandra’s father.

Id. The trial court concluded that Leonard was Sandra’s father under the Minnesota Parentage

Act (Minn. Stat. § 257.51 et seq. (2004)), because she was born within 280 days of his divorce.

Jotham, 722 N.W.2d at 450. The appellate court reversed, holding that Diann could offer




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2017 IL App (2d) 160723


evidence to rebut the presumption of parentage, because the action was a probate proceeding and

therefore the limitations period of the Minnesota Parentage Act did not apply. Id.

¶ 33   The Minnesota Supreme Court reversed the appellate court, holding that the limitations

period of the Minnesota Parentage Act applied in the probate proceeding. Id. at 453-54. Section

257.55 of the Minnesota Parentage Act (Minn. Stat. § 257.55 (2004)) created a presumption that

a man was the biological father of a child born to the man’s former wife within 280 days of the

end of the marriage. The presumption could be challenged under the Minnesota Parentage Act,

but only within a specified period. Jotham, 722 N.W.2d at 451. The court clarified:

       “When a party benefits from a Parentage Act presumption of paternity and relies on that

       presumption to establish paternity in a probate proceeding, the party has chosen to

       establish paternity under the Parentage Act, as expressly authorized by the Probate Code.

       [Citation.] In such a situation, the provisions of the Parentage Act must apply in their

       entirety.” Id. at 452.

Sandra benefited from a paternity presumption, and the court therefore held that, for intestacy

purposes, paternity had to be determined in accordance with the Minnesota Parentage Act. Id. at

454.

¶ 34   We agree with Joanna and answer the first certified question as follows: The Parentage

Act’s limitations on declaring the nonexistence of a parent-child relationship 4 apply in a probate

proceeding to determine heirship where a party is seeking to declare the nonexistence of the

decedent’s parent-child relationship with his presumed child.

¶ 35   We first note that the Probate Act does not speak to the determination of parentage.

Rather, section 5-3(a) of the Probate Act provides that trial courts may ascertain and declare

       4
           See 750 ILCS 46/205 (West Supp. 2015).



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2017 IL App (2d) 160723


heirship “of any decedent *** at any time during the administration of the estate.” 755 ILCS

5/5-3(a) (West 2016). Contrary to Boguslaw’s argument, this general power to ascertain heirship

does not impose a limitations period on determining parentage in a probate proceeding, and our

answer does not nullify section 5-3(a). The rest of the section is concerned with how, not when,

to establish heirship (see 755 ILCS 5/5-3(b) (West 2016) (heirship may be ascertained from

affidavit, evidence in narrative form, or questions and answers reduced to writing)).

¶ 36   In order to determine parentage under the Probate Act, our supreme court has looked to

the Parentage Act for guidance. See Poole, 207 Ill. 2d at 403. In Poole, petitioner Randy Poole

had been living with Christina Clausen. Id. at 394. Randy and Christina were in a conjugal

relationship, but they never married.      Id. at 395.    Christina became pregnant during their

relationship, and, about eight months into her pregnancy, she died in an automobile accident. Id.

Doctors performed a Caesarian section to deliver the stillborn fetus, Madison Poole, and the

parties did not dispute that Madison survived Christina. Id.

¶ 37   Respondent Debra Clausen, Christina’s mother, filed a petition for letters of

administration for Madison’s estate, and the trial court granted her petition. Id. The court

identified Madison’s heirs as her maternal grandparents, which included Debra.                 Randy

thereafter filed a petition to revoke the letters of administration, asserting that he was Madison’s

biological father and, as such, was entitled to priority in the granting of letters of administration.

Id. at 396. The court dismissed Randy’s petition, based on a lack of standing. Id. at 397. The

appellate court reversed, holding that Randy had standing. Id. at 398.

¶ 38   The supreme court affirmed the appellate court, holding that Randy was entitled to a

hearing to establish parentage of Madison. Id. at 407. The question before the court was who

had legal precedence to act as the administrator of Madison’s estate. To answer that question,



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2017 IL App (2d) 160723


the court began by citing section 9-3 of the Probate Act, which listed persons entitled to

preference in obtaining letters. Id. at 401. Madison had no surviving spouse or descendants, and

therefore under the Probate Act her “parents” were next in line to act as administrators. Id.

However, the Probate Act did not define the term “parents.” Id. at 403. In order to define the

term “parents,” the court turned to the Parentage Act, believing “that the question regarding the

order of preference for the administration of this estate presents [parentage] as an issue *** and

that the Parentage Act is the statutory mechanism that serves to legally establish parent and child

relationships in Illinois.” Id. at 404. It was therefore necessary to remand for a hearing in which

Randy could petition to establish his paternity of Madison pursuant to the Parentage Act. Id. at

406. At the hearing, Randy would be free to adduce evidence to establish paternity, and DNA

testing would be available since tissue samples were preserved in the case. Id. at 407. If he were

able to establish paternity, he would take precedence over Debra to administer Madison’s estate.

Id.

¶ 39   We believe that Poole clearly establishes that, when a parentage issue arises in a probate

proceeding, we may look to the Parentage Act for guidance. Here, parentage is the primary issue

in the first certified question, specifically, what limitations periods apply in a challenge to

presumed parentage during a probate proceeding. As preference for letters of administration was

the context for the parentage issue in Poole, heirship is the context for the parentage issue here.

Also as in Poole, the Probate Act’s rules for descent and distribution do not define the parent-

child relationship or provide a mechanism for challenging it.

¶ 40   We note that our reading of Poole is consonant with the language of the Parentage Act

itself. The Parentage Act applies “to determination of parentage in this State” (750 ILCS

46/104(a) (West Supp. 2015)), and a “parent-child relationship established under this Act applies



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for all purposes, except as otherwise specifically provide by other law of this State” (750 ILCS

46/203 (West Supp. 2015)). The Parentage Act specifically provides that, “[i]n a civil action not

brought under this Act, the provisions of this Act shall apply if parentage is at issue.” 750 ILCS

46/603 (West Supp. 2015).

¶ 41   We are not persuaded by Boguslaw’s foreign case law. Joanna is correct that Wingate,

Nocita, and Lewis are distinguishable. Each of those cases addressed a situation where the child

sought to establish paternity, whereas here the administrator of the estate seeks to disestablish

paternity.   The New Jersey Supreme Court clarified that its holding in Wingate applied

“principally to parties seeking to establish parentage or confirm their parentage, as opposed to

those seeking to defeat the established parentage of others.” In re Trust Created by Agreement

Dated December 20, 1961, 765 A.2d at 755. Moreover, Missouri’s and Colorado’s respective

probate codes had applicable provisions. In Nocita, the Missouri Probate Code specifically

permitted a claimant six months from the start of probate to establish paternity. Nocita, 914

S.W.2d at 359. And in Lewis, the court found that the more specific provision of the Colorado

Probate Code, which allowed a child born out of wedlock to establish paternity after the father’s

death, controlled over the more general limitations of the Colorado Parentage Act. Lewis, 890

P.2d at 150-51.

¶ 42   On the other hand, the question before us is similar to those posed in Murray and Jotham.

In Murray, the Nevada Supreme Court addressed the decedent’s siblings’ challenge during

probate to the paternity of the decedent’s daughter. Murray, 344 P.3d at 420. The Nevada

Probate Code did not provide guidance on who was a “child” for purposes of intestate

succession, and therefore the court turned to the Nevada Parentage Act, which “ ‘applied to

determine legal parentage.’ ”    Id. at 421.     The Nevada Supreme Court reasoned that the



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legislature, by failing to provide any independent means of determining parentage for inheritance

purposes, intended Nevada’s Parentage Act to apply in probate proceedings. Id. at 422. The

court was “not persuaded that the manner in which a child’s paternity is determined should

change simply because a party is involved in a probate dispute instead of a custody or support

dispute.” Id. Similarly, here, Boguslaw is challenging the decedent’s paternity of his daughter

during a probate proceeding, and the Probate Act does not provide any independent means to

determine parentage. Murray is consistent with our supreme court’s holding in Poole, which

directs us to the Parentage Act for guidance when the Probate Act is silent on an issue of

parentage.

¶ 43   In Jotham, the Minnesota Supreme Court also entertained a challenge to parentage during

probate. The pertinent issue before the court was whether the three-year limitations period under

the Minnesota Parentage Act applied in a probate proceeding where a party was attempting to

rebut a presumption of parentage for intestacy purposes. Jotham, 722 N.W.2d at 452. The court

held that the limitations period under the Minnesota Parentage Act applied. Id. at 453-54. The

court reasoned that, when a party benefits from a presumption of paternity under the Minnesota

Parentage Act and relies on that presumption in a probate proceeding, the Parentage Act must

apply in its entirety. Id. at 452. The court distinguished between individuals seeking to establish

paternity and those contesting the paternity of another. Id. at 453. The Minnesota Parentage

Act’s limitations periods for actions to declare the nonexistence of a presumed parent-child

relationship were shorter than those for actions to declare such an existence, and this evinced “a

policy favoring the establishment of parent-child relationships.” Id. This policy bolstered the

court’s conclusion that paternity must be determined in accordance with the Minnesota Parentage

Act. Id. at 453-54. Similarly, here, Joanna benefits from the presumption of paternity under the



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Parentage Act, and she faced a petition to declare the nonexistence of her parent-child

relationship with Christopher. Like the statute in Minnesota, the Parentage Act imposes stricter

limitations on challenges to an existing parent-child relationship than on actions to establish

parentage.   Compare 750 ILCS 46/607 (West Supp. 2015) (providing no limitation on a

proceeding to adjudicate parentage of a child without any presumed, acknowledged, or

adjudicated parent) with 750 ILCS 46/608(b) (West Supp. 2015) (limiting who may seek to

declare the nonexistence of a presumed parent-child relationship and requiring findings by the

court before the proceeding may commence) and 750 ILCS 46/205(b) (West Supp. 2015)

(limiting when the child, birth mother, or presumed parent may bring an action to declare the

nonexistence of a parent-child relationship).

¶ 44   Accordingly, our conclusion that the Parentage Act applies is consistent with Joanna’s

persuasive case law, with Poole, and with the plain language of the Parentage Act.          The

applicable limitations periods include the time during which a presumed parent may rebut the

presumption of parentage (750 ILCS 46/205(b) (West Supp. 2015)) and the time during which

certain persons may maintain a proceeding to adjudicate parentage (750 ILCS 46/602, 607, 608,

609 (West Supp. 2015)). Whether the Parentage Act’s limitations periods bar Boguslaw’s

petition is entangled with the issue of standing, which we address infra.

¶ 45   Finally, we reject Boguslaw’s argument that our interpretation leads to the absurd result

of determining heirship before the decedent’s death. Although living persons have children,

living persons have no heirs. Dempsey v. Dempsey, 342 Ill. App. 3d 969, 974 (2003). Heirship

can be determined only after death, and a child, presumed or otherwise, must survive the

decedent in order to be an heir. See Morris v. William L. Dawson Nursing Center Inc., 187 Ill.




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2d 494, 497-98 (1999) (under the Probate Act, “the estate of a decedent leaving no surviving

spouse but who is survived by descendants is distributed among those descendants per stirpes”).

¶ 46                            B. Second Question: Standing

¶ 47    Boguslaw argues that he, as the administrator of Christopher’s estate, has standing to

maintain an action to adjudicate the nonexistence of a parent-child relationship between

Christopher and Joanna.     He argues that, because he has standing to petition the court to

determine heirship, he concomitantly has standing to challenge parentage. He cites Kaull v.

Kaull, 2014 IL App (2d) 130175, to argue that he specifically has standing to pursue DNA

testing. In Kaull, the respondent refused to submit a DNA sample that the trial court ordered

pursuant to Illinois Supreme Court Rule 215 (eff. Mar. 28, 2011). Kaull, 2014 IL App (2d)

130175, ¶ 1. The DNA sample was ordered in an effort to identify beneficiaries of a trust. Id.

The respondent argued, in part, that Rule 215 was unconstitutional and that the Parentage Act

controlled to the exclusion of Rule 215. Id. We held that the respondent forfeited his Parentage

Act argument and that, regardless, if the Parentage Act conflicted with the supreme court rule

over who may be ordered to submit to a DNA test in a trust case to determine beneficiaries, the

supreme court rule controlled. Id. ¶¶ 76, 94. Accordingly, we affirmed the trial court’s order for

a DNA test. Id. ¶ 94.

¶ 48   Joanna responds that, although Boguslaw insists that he is merely determining heirship,

he is in fact attempting to override the presumption of parentage established under the Parentage

Act. She argues that he cannot circumvent the Parentage Act, which explicitly states that, “[i]n a

civil action not brought under this Act, the provisions of this Act shall apply if parentage is at

issue.” 750 ILCS 46/603 (West Supp. 2015). She continues that Boguslaw’s standing is limited

by section 205(a), which enumerates those individuals who may challenge the presumption of



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parentage. 750 ILCS 46/205(a) (West Supp. 2015). Under the plain language of section 205(a),

only three people have standing to challenge parentage in this case: Joanna, as the child; Ilona,

as the birth mother; and Christopher, as the presumed parent. She argues that, because Boguslaw

is not one of those individuals, he cannot challenge parentage. She continues that nothing in the

Parentage Act prohibits its application in a probate proceeding, and, in fact, certain provisions

suggest its application. See 750 ILCS 46/604 (West Supp. 2015) (if the presumed father is

deceased, venue for a proceeding to adjudicate parentage is appropriate in any county in which a

proceeding for probate or administration of the presumed father’s estate is or could be

commenced).

¶ 49   Joanna continues that, although Boguslaw failed to present “maybe his best argument for

standing” pursuant to section 602 of the Parentage Act, such an argument still falls short.

Although Boguslaw could argue that he has standing pursuant to section 602(j) (750 ILCS

46/602(j) (West Supp. 2015)), standing under section 602 is limited by section 608 (750 ILCS

46/608 (West Supp. 2015)). Specifically, Joanna argues that section 608(b) strictly limits who

may maintain a proceeding to declare the nonexistence of a parent-child relationship between a

child and the child’s presumed father. She argues that the only person who could commence

such a proceeding was Christopher.

¶ 50   We agree with Joanna insofar as Boguslaw conflates a determination of heirship with an

effort to declare the nonexistence of a parent-child relationship. We reject Boguslaw’s repeated

attempts to frame the proceeding as simply a determination of heirship—his petition for heirship

turns on his argument that Christopher was not Joanna’s father, and his argument improperly

elevates form over substance. We also reject Boguslaw’s argument that he has standing simply

by virtue of his appointment as administrator under the Probate Act. We have already concluded



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that the Parentage Act’s limitations apply, and these include section 602’s standing provisions.

Furthermore, we find Kaull inapplicable. Kaull addressed the context of trust administration, not

the Probate Act; it considered the application of a supreme court rule that is not raised here; and,

importantly, DNA testing was sought not to declare the nonexistence of a parent-child

relationship, but instead to determine whether another person also had a parent-child relationship

with the father. Kaull, 2014 IL App (2d) 1301475, ¶¶ 3-20.

¶ 51   Nevertheless, we do not believe that the provisions of the Parentage Act provide a simple

yes or no answer to the second certified question. Rather, as we explain, standing is contingent

upon findings that the trial court in this case has not yet made.

¶ 52   First, Boguslaw’s standing as the administrator of the estate must derive from section

602(j) of the Parentage Act (750 ILCS 46/602(j) (West Supp. 2015)). Section 602(j) permits a

proceeding to be maintained by “a representative authorized by law to act for an individual who

would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated, or a

minor.” Id. In other words, section 602(j) puts a legal representative in the shoes of a person

who could seek to adjudicate parentage but for being deceased, incapacitated, or a minor.

Pursuant to section 602(d), “a man presumed or alleging himself to be the parent of the child”

also has standing. 750 ILCS 46/602(d) (West Supp. 2015). Therefore, the administrator of an

estate (Boguslaw) has standing if the presumed father (Christopher) could maintain a proceeding,

absent his death.

¶ 53   Whether a presumed father may challenge parentage is limited by several Parentage Act

provisions. Although section 205(a) permits a presumed father to file an action to declare the

nonexistence of the parent-child relationship (750 ILCS 46/205(a) (West Supp. 2015), the action

may not be filed after the child reaches age 18 (750 ILCS 46/205(b) (West Supp. 2015). Absent



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a more specific provision, section 205 would bar an action by Christopher—and therefore also

bar an action by Boguslaw—to declare the nonexistence of the parent-child relationship, as

Joanna is past the age of 18.

¶ 54   On the other hand, section 608(b) applies only to a presumed parent.             750 ILCS

46/608(b) (West Supp. 2015) (a proceeding to declare the nonexistence of a parent-child

relationship “may be maintained *** by a person described in paragraph (1) through (4) of

subsection (a) of Section 204 of this Act”). Section 608(b) permits an action to declare the

nonexistence of the parent-child relationship between a child and the child’s presumed father “at

any time,” but only after the court determines that “the presumed father and the mother of the

child neither cohabitated nor engaged in sexual intercourse with each other during the probable

time of conception.” Id. An adjudication permitted under section 608(b) serves as a rebuttal of

presumed parentage. 750 ILCS 46/608(c) (West Supp. 2015). By its plain language, section

608(b) permits a presumed parent to maintain an action to declare the nonexistence of the parent-

child relationship outside of the limitations period of section 205, contingent upon a finding that

the presumed father and the child’s mother did not cohabitate and did not have sex with each

other around the time the child was conceived.

¶ 55   Joanna urges a strict interpretation of section 608(b). She contends that, although section

608(b) carves out a “safe harbor for presumed parents to challenge parentage at any time,” it

allows only the presumed parent to maintain the proceeding—not the child, not the child’s

mother, and not the administrator of the deceased presumed parent’s estate. Rather, she argues,

the limitations period of section 205 still applies to anyone except the presumed father himself.

¶ 56   We are not persuaded by her argument, in light of section 602(j) (750 ILCS 46/602(j)

(West Supp. 2015)). As discussed supra, the administrator of an estate, as the deceased’s legal



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representative, stands in the deceased’s shoes. The administrator’s standing is contingent upon

whether the presumed father, if not deceased (or incapacitated or a minor), could maintain a

proceeding. Here, Christopher’s standing to maintain a proceeding to declare the nonexistence

of the parent-child relationship outside of section 205’s limitations period is contingent upon

satisfaction of section 608(b). In order for Boguslaw to have standing, the court must first find

that Christopher and Ilona did not cohabitate and did not engage in sexual intercourse around the

probable time of Joanna’s conception. 750 ILCS 46/608(b) (West Supp. 2015). Absent that

finding, section 608(b) is inapplicable, and Boguslaw’s challenge to the presumed parent-child

relationship is time-barred pursuant to section 205.

¶ 57   Accordingly, we cannot provide a general answer to the second certified question.

Standing under the Parentage Act will turn on the facts of the particular case. Therefore, we

decline to answer the second question.

¶ 58                                   III. CONCLUSION

¶ 59   We answer the first certified question by concluding that the Parentage Act’s limitations

periods apply in a probate proceeding where parentage is challenged. We do not answer the

second question, because standing depends upon a section 608(b) finding. We therefore reverse

the underlying order and remand to the Du Page County circuit court for further proceedings

consistent with this opinion.

¶ 60   First certified question answered; second certified question not answered; order reversed

and cause remanded.




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