                                  Illinois Official Reports

                                          Appellate Court



                         Danhauer v. Danhauer, 2013 IL App (1st) 123537




Appellate Court              DANIEL A. DANHAUER and DEBORAH L. SUPIS, as Executors
Caption                      of the Estate of Daniel J. Danhauer, Deceased, Petitioners-Appellants,
                             v. JEANNE NEWTON DANHAUER, Respondent-Appellee.


District & No.               First District, First Division
                             Docket No. 1-12-3537


Filed                        December 2, 2013


Held                         In an action arising from a dispute between decedent’s children by his
(Note: This syllabus         first wife and his second wife as to who should receive his individual
constitutes no part of the   retirement account, the trial court properly denied the children’s
opinion of the court but     motion for substitution of judge for cause, since their allegations did
has been prepared by the     not constitute “cause” for purposes of section 2-1001(a)(3) of the
Reporter of Decisions        Code of Civil Procedure, parol evidence related to a change in the
for the convenience of       beneficiary of the account in the course of a merger of the account
the reader.)                 holder with another brokerage and the second wife’s later use of her
                             authority as power of attorney to correct the alleged “mistake” was
                             properly admitted in evidence, and the testimony of one of decedent’s
                             sons was found inadmissible under the Dead-Man’s Act; however the
                             entry of summary judgment for decedent’s second wife was reversed
                             and the cause was remanded for further proceedings on the ground that
                             a genuine issue of material fact existed as to whether decedent
                             intended to change the beneficiary or a mistake was made by the
                             account holder.


Decision Under               Appeal from the Circuit Court of Cook County, No. 10-P-003455; the
Review                       Hon. James G. Riley, Judge, presiding.


Judgment                     Affirmed in part; reversed in part.
                             Cause remanded.
     Counsel on              David A. Novoselsky and Edward J. Stawicki, both of Novoselsky
     Appeal                  Law Offices, of Chicago, for appellants.

                             Clarke M. Gillespie III, of Kubasiak, Fylstra, Thorpe & Rotunno PC,
                             of Chicago, for appellee.


     Panel                   JUSTICE HOFFMAN delivered the judgment of the court, with
                             opinion.
                             Justices Cunningham and Delort concurred in the judgment and
                             opinion.




                                            OPINION

¶1         The petitioners, Daniel A. Danhauer and Deborah L. Supis, as executors of the estate of
       Daniel J. Danhauer, deceased, appeal the circuit court order which denied their petition to
       substitute the judge under section 2-1001(a)(3) of the Code of Civil Procedure (Code) (735
       ILCS 5/2-1001(a)(3) (West 2012)) and granted summary judgment under section 2-1005 of
       the Code (735 ILCS 5/2-1005 (West 2012)) in favor of the respondent, Jeanne Newton
       Danhauer. On appeal, the petitioners argue that the circuit court erred when it: (1) denied
       their petition for substitution of judge for cause; (2) determined that the 2008 beneficiary
       designation form was ambiguous and admitted parol evidence; and (3) refused to allow
       Daniel A. Danhauer to testify during the hearing on the respondent’s motion regarding
       statements made by the decedent. For the following reasons, we affirm in part and reverse in
       part.
¶2         On July 8, 2010, the petitioners filed for probate of the 2004 will of Daniel J. Danhauer,
       stating the following facts. On February 19, 2010, at the age of 84, Daniel J. Danhauer died
       from a failure to thrive and advanced dementia. According to the death certificate, the
       decedent failed to thrive for several months before his death and had suffered from advanced
       dementia for several years before his death. The decedent’s heirs included five children from
       his first marriage: Susan M. Clark, Kathleen A. Jacobs, Sandra L. Fuelts, and the petitioners;
       and his second wife, the respondent, whom he married in 1994 following the death of his first
       wife two years earlier.
¶3         The petition states that the decedent left a pour-over will, dated June 3, 2004, which
       provides that the estate’s assets pour over into the Daniel J. Danhauer Trust under trust
       authority dated November 15, 1991. The decedent’s children are named beneficiaries of the
       trust, but the respondent is not. According to the petition, five months before his death, on
       September 17, 2009, the decedent signed a second will, an amendment to the trust, and

                                                  -2-
     documents assigning power of attorney (POA) for health care and property to the respondent.
     The beneficiaries of the trust remained unchanged.
¶4        According to the petition, on January 21, 2010, the decedent’s physician, Dr. Laura
     Saelinger-Shafer, wrote a letter to the respondent stating that the decedent’s dementia had
     rapidly progressed over the past year, leaving him with impaired memory and judgment, and
     that he was no longer competent to make financial decisions.
¶5        The petitioners further allege that, on February 18, 2010, the day before the decedent
     died, the respondent signed, as POA, a beneficiary form on the decedent’s individual
     retirement account (IRA) held at Morgan Stanley Smith Barney (Morgan Stanley), worth
     approximately $110,000. The 2010 beneficiary form changed the beneficiary from the
     decedent’s trust to the respondent.
¶6        On February 23, 2010, the respondent filed a petition to admit the 2009 will for probate.
     On December 8, 2010, the circuit court admitted the 2009 will and issued letters of office
     naming the petitioners supervised co-executors of the decedent’s estate.
¶7        On March 24, 2011, the petitioners requested that the court issue citations to several
     financial and medical institutions because they believed that the respondent had unlawfully
     withdrawn assets from the estate. Morgan Stanley filed more than one motion for leave to file
     an interpleader complaint and for declaratory judgment, seeking to determine the proper
     beneficiary to the IRA account. However, the trial court denied Morgan Stanley’s motions.
¶8        On April 10, 2012, the respondent filed a “Petition for Turnover Order of IRA Account
     Funds,” alleging the following. In 2002, the decedent named the respondent beneficiary to
     his IRA account, which was held at Smith Barney at that time. On September 7, 2007, upon
     Smith Barney’s merger with Citibank, the decedent was required to complete a new
     beneficiary designation form in which he again named the respondent as the beneficiary. In
     November 2008, upon Citi Smith Barney’s merger with Morgan Stanley, the decedent was
     again required to complete new beneficiary paperwork. According to the petition, the
     decedent instructed his financial advisor, Mark Ratay, and Ratay’s assistant, Chastity
     Peterson, to transfer his accounts, including the IRA, without making any changes to his
     listed beneficiaries. As of that date, the trust was the named beneficiary on the decedent’s
     accounts, except the IRA, which listed the respondent as beneficiary. The petition further
     alleges that Ratay and Peterson made a mistake and changed the beneficiary on the IRA
     account from the respondent to the trust. On February 4, 2010, the respondent provided
     Peterson with her POA documents. On February 18, 2010, Peterson faxed an IRA
     designation of beneficiary form to the respondent to correct the beneficiary information,
     which the respondent completed and faxed back to Peterson. The respondent attached copies
     of the various beneficiary forms which substantiate the allegations contained in her petition.
¶9        In response, the petitioners argued that the respondent did not have authority as POA to
     change the beneficiaries on the decedent’s accounts under section 3-4 of the Illinois Power of
     Attorney Act (755 ILCS 45/3-4 (West 2010)), which prohibits an agent from changing
     beneficiaries. They further argued that, based on Dr. Shafer’s letter, the decedent was
     incompetent at the time he signed the POA documents. The petitioners attached the

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       transcripts of the depositions of Ratay and Peterson in support of their argument that the
       decedent’s 2008 beneficiary designation form should be honored.
¶ 10        Ratay testified that he had worked as the decedent’s financial advisor since 1985. In
       2008, Ratay requested the decedent’s permission to transfer his accounts from Citi Smith
       Barney to Morgan Stanley. Ratay’s assistant, Peterson, sent paperwork to the decedent, who
       signed the forms on November 27, 2008. Sometime before the decedent died, his children
       contacted Ratay to find out the beneficiary information on all of the accounts. At that point,
       he and Peterson realized a mistake was made because the decedent had always wanted the
       respondent to inherit the IRA account. Ratay testified that the 2008 beneficiary form did not
       match what the decedent had “always said he wanted to do.” While he admitted it was
       possible the decedent had changed his mind, Ratay did not believe that the decedent intended
       to change the IRA beneficiary because he never expressed such an intention.
¶ 11        Peterson testified that she had known the decedent since she began working for Smith
       Barney in 1998. She knew that the IRA account was the only account with the respondent
       listed as beneficiary. In 2008, during Citi Smith Barney’s merger with Morgan Stanley,
       Peterson sent account transfer paperwork to the decedent. She testified that she wrote in the
       decedent’s name but that he completed the beneficiary sections. Peterson stated that she
       made some corrections, including redacting the date of birth because trusts do not generally
       include one and correcting the relationship to “trustee.” She became aware of the beneficiary
       mistake when the respondent contacted her in February 2010. Peterson recalled informing the
       respondent that the change was Morgan Stanley’s mistake because the decedent had wanted
       everything to transfer without any changes. She explained that, at the time of the 2008
       merger, she called Smith Barney and requested the most recent beneficiary designation for
       the IRA account and received the wrong information. Peterson passed on the incorrect
       information to the decedent, who entered the information on the Morgan Stanley documents.
       She testified that the decedent never indicated that he wanted to change the beneficiaries on
       any of his accounts and had stated that he wanted the accounts set up in exactly the same
       manner. Peterson testified that, as of November 2008, the decedent was actively monitoring
       the performance of his accounts with her and Ratay, and she believed that he was aware of
       his actions.
¶ 12        The petitioners also attached an affidavit by Daniel A. Danhauer, which states that,
       during Christmas 2008, the decedent told him that the trust should be the beneficiary of the
       Morgan Stanley IRA.
¶ 13        On June 1, 2012, the circuit court denied the respondent’s petition to turnover the IRA
       funds but allowed her to file an amended petition by July 2, 2012. During the hearing, the
       petitioners objected to the respondent bringing in any parol evidence, arguing that the court
       should consider only the four corners of the 2008 beneficiary designation form. The
       petitioners argued that the 2010 beneficiary designation form was invalid because the
       respondent exceeded her POA authority. The court, however, determined that there was an
       ambiguity in the decedent’s intended beneficiary. The court agreed that the POA statute
       prohibits an agent from changing an account’s beneficiary, but it determined that the
       respondent had used her POA to correct a mutual mistake. The court stated that, even if the
                                                 -4-
       POA method used by the parties to correct the mistake was incorrect, the respondent could
       proceed under a constructive trust theory. The court then allowed the respondent to call
       Peterson to testify, which she did consistent with her deposition testimony. However, the
       wrong account paperwork was brought to the hearing, and the court denied the respondent’s
       petition because there was no proof that the IRA still existed. Although the court denied the
       respondent’s petition, it stated that the respondent could refile her claim after she obtained
       the correct account numbers and documentation.
¶ 14       On July 2, 2012, the respondent filed a motion for summary judgment under section
       2-1005 of the Code or declaratory judgment under section 2-701 of the Code (735 ILCS
       5/2-701 (West 2012)). She argued that there was no dispute of fact that the beneficiary
       designation on the IRA was changed due to a mutual mistake by Morgan Stanley and the
       decedent and prayed that a constructive trust be imposed to correct the mistake. The POA,
       will, trust, and IRA documents, along with the deposition transcripts of Ratay and Peterson,
       were attached to the motion.
¶ 15       On August 8, 2012, the petitioners’ response to the summary judgment motion was due,
       but instead they filed a motion for an extension of time and a petition for substitution of the
       judge for cause under section 2-1001(a)(3) of the Code (735 ILCS 5/2-1001(a)(3) (West
       2012)). The petition stated that the June 1, 2012, hearing on the respondent’s petition to turn
       over the IRA funds demonstrated that the circuit court had prejudged the dispute and
       possessed a bias in favor of the respondent. The petition particularly noted the following
       comments made by the trial court:
                    “I don’t disagree with what [counsel for petitioner] says [regarding POA powers].
                But all we’re going to do is have another six-month delay while they file some trust
                document indicating somebody is holding it as a constructive trust.
                                                   ***
                    So if the POA can’t do it, then certainly somebody is holding this money under a
                constructive trust theory.
                                                   ***
                    The issue is whether or not [counsel for respondent] could prove up the mistake
                that took place and whether or not the actions that happened to correct or change the
                mistake were viable. That’s what we’re doing.
                                                   ***
                    Right, so I’m going to stick it to some nice 85-year old lady because the bank
                can’t give me the link documents. Forget it. Not happening. That’s not fundamental
                fairness. That’s not due process to anybody. We’re trying to get to the bottom line
                here of who owns this [IRA] account, right?”
¶ 16       The petitioners also highlighted comments by the court in which it told counsel for the
       petitioners to “be quiet” and stated that it was “confused” and that there was “ambiguity all
       over this courtroom.” Based on these comments, the petitioners alleged that the circuit court
       was biased in favor of the respondent and affirmatively undertook the role of an advocate for
       the respondent.
                                                  -5-
¶ 17       On August 23, 2012, the court denied the petitioners’ motion for an extension of time and
       petition for substitution of judge. A hearing on the respondent’s motion for summary
       judgment then proceeded.
¶ 18       During the hearing, the petitioners objected to the respondent’s references to parol
       evidence, arguing that the 2008 beneficiary form naming the trust is unambiguous. The
       petitioners further objected to evidence of the decedent’s intentions through the testimony of
       Peterson based on the Dead-Man’s Act (735 ILCS 5/8-201 (West 2012)). The court,
       however, determined that Peterson was not an interested party and, therefore, her testimony
       was admissible under an exception to the Dead-Man’s Act. The court also determined that
       Daniel A. Danhauer’s affidavit was inadmissible under the Dead-Man’s Act because he was
       an interested party. The petitioners then sought to have Daniel testify, but the circuit court
       denied that request. The court stated that the petitioners failed to file a response to the motion
       and it was not letting them “morph this into an evidentiary hearing.”
¶ 19       Based on the record before it, the court determined that there was a mistake made by
       Morgan Stanley, not by the decedent. It also found that Morgan Stanley discovered the error
       and sought to correct the error by having the respondent sign a new beneficiary form. The
       court found it relevant that the decedent never sought to make any account changes in 2008,
       but he was only following the directions of Morgan Stanley to complete the transfer of his
       accounts from Citi Smith Barney. The court granted the respondent’s motion for summary
       judgment and found the IRA account belongs to the respondent as there was no evidence
       contradicting the fact that the 2008 beneficiary change was a mistake. The court order further
       stated that Morgan Stanley was to pay the IRA funds to the respondent.
¶ 20       On September 21, 2012, the petitioners moved for reconsideration of the court’s August
       23 denial of their petition for substitution of judge and grant of the respondent’s motion for
       summary judgment. That motion was denied on October 17, 2012, and this appeal followed.
¶ 21       The petitioners first argue that the circuit court erred in denying their petition for
       substitution of judge for cause. They argue that their petition should have been decided by
       another judge, not the one named in the petition. We disagree.
¶ 22       Because our judgment rests on the interpretation and application of section 2-1001(a)(3)
       of the Code, we apply de novo review. In re Estate of Wilson, 238 Ill. 2d 519, 552 (2010).
       Section 2-1001(a)(3) of the Code provides that a substitution of judge may be had in a civil
       action “[w]hen cause exists.” 735 ILCS 5/2-1001(a)(3) (West 2012). This provision further
       states:
                   “(i) Each party shall be entitled to a substitution or substitutions of judge for
               cause.
                   (ii) Every application for substitution of judge for cause shall be made by petition,
               setting forth the specific cause for substitution and praying a substitution of judge.
               The petition shall be verified by the affidavit of the applicant.
                   (iii) Upon the filing of a petition for substitution of judge for cause, a hearing to
               determine whether the cause exists shall be conducted as soon as possible by a judge
               other than the judge named in the petition. The judge named in the petition need not

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                 testify but may submit an affidavit if the judge wishes. If the petition is allowed, the
                 case shall be assigned to a judge not named in the petition. If the petition is denied,
                 the case shall be assigned back to the judge named in the petition.” 735 ILCS
                 5/2-1001(a)(3) (West 2012).
¶ 23        In Wilson, the supreme court considered whether a circuit judge who is the subject of a
       petition for substitution for cause under section 2-1001(a)(3) of the Code must automatically
       refer the petition to another judge for a hearing upon the filing of the petition, even when the
       petition, on its face, fails to comply with threshold procedural and substantive requirements.
       Wilson, 238 Ill. 2d at 522. The court held that a party’s right to have a petition for
       substitution heard by another judge is not automatic, but the right is triggered only if the
       party seeking that relief is able to bring himself or herself within the provisions of the law.
       Id. at 553. “In order to trigger the right to a hearing before another judge on the question of
       whether substitution for cause is warranted in a civil case pursuant to section 2-1001(a)(3),
       the request must be made by petition, the petition must set forth the specific cause for
       substitution, and the petition must be verified by affidavit.” Id. The court stated that in order
       to meet the statute’s threshold requirements, a petition for substitution must allege grounds
       that, if true, would justify granting substitution for cause. Id. at 554. “Where bias or prejudice
       is invoked as the basis for seeking substitution, it must normally stem from an extrajudicial
       source, i.e., from a source other than from what the judge learned from her participation in
       the case before her.” Id. The supreme court explained that opinions formed by the judge
       during the course of the proceedings do not constitute a basis for a bias unless they
       “ ‘ “display a deep-seated favoritism or antagonism that would make fair judgment
       impossible.” ’ ” Id. (quoting Eychaner v. Gross, 202 Ill. 2d 228, 281 (2002), quoting Liteky v.
       United States, 510 U.S. 540, 555 (1994)).
¶ 24        In Wilson, the party seeking the substitution alleged that the judge’s determination that its
       witness was not credible in a previous hearing created a bias that would make fair judgment
       in the upcoming hearing impossible. Id. at 555. The supreme court rejected this as a ground
       for cause, stating that an assessment of the credibility of a witness based on the evidence
       presented in the course of the proceedings is a matter within the trial court’s discretion and
       does not rise to the level of deep-seated favoritism or antagonism that would make fair
       judgment impossible. Id. For this reason, the supreme court stated that, even if it had taken
       the allegations as true, they would not establish “cause” for substitution within the meaning
       of section 2-1001(a)(3) of the Code. Id. Therefore, the trial court had no obligation under the
       statute to refer the matter to another judge for a hearing. Id.
¶ 25        Likewise, in this case, the petitioners’ allegations, taken as true, do not establish cause for
       substitution as meant under section 2-1001(a)(3) of the Code. As evidence of bias toward the
       respondent, the petitioners cite to statements the trial judge made during the June 1, 2012,
       hearing, which we point out did not end in the respondent’s favor, but rather in favor of the
       petitioners. The statements do not reveal opinions derived from an extrajudicial source, but
       rather are remarks made during the course of proceedings which do not show a high degree
       of favoritism or antagonism such that fair judgment was impossible. For instance, the court’s
       comment that it was not “going to stick it to some nice 85-year-old lady because the bank
                                                    -7-
       can’t give” it certain documents, when read in context of the proceedings, revealed only that
       the court was unwilling to grant the petitioners’ motion for a directed verdict because the
       bank did not supply the proper bank documents at the hearing. Ultimately, the court denied
       the respondent’s petition but allowed her time to replead with the proper bank account
       documents.
¶ 26       Next, when the court stated that it agreed with counsel’s argument regarding the POA
       statute, but mentioned a constructive trust issue, the court was merely rejecting the
       petitioners’ contention that the POA statute resolved the entire claim made by the respondent.
       The court went on to explain that the POA issue did not resolve the question of a mutual
       mistake. We further reject the petitioners’ claim that the court sua sponte advocated a
       constructive trust claim for the respondent. The record reflects that the respondent argued
       that the beneficiary information was only changed in 2010 to correct the mistake that
       occurred in the 2008 brokerage account transfer. The circuit court did not advocate for the
       respondent when it mentioned the constructive trust possibility, but simply was discussing
       the legal implications of the respondent’s claim.
¶ 27       Finally, the other statements highlighted by the petitioners also reveal no specific bias or
       antagonism, but reflect only the court’s frustration with the parties and the proceedings. The
       court stated “Jesus. Well, I’m real–for the purpose of the Appellate Court, I’m totally
       confused. There’s ambiguity all over this courtroom. I can’t link anything together.” The
       court made this comment out of frustration because the parties did not produce the proper
       bank account documents at the hearing, and the court could not follow the IRA account’s
       many account changes. The court also told counsel for the petitioner to “be quiet,” again
       indicating it was frustrated with the parties. None of these statements, however, demonstrate
       a deep-seated favoritism or antagonism that would make fair judgment impossible. Under
       these facts, the trial court was not obligated to transfer the petition to be heard by another
       judge because the allegations, even taken as true, did not constitute “cause” under the
       meaning of section 2-1001(a)(3).
¶ 28       Next, the petitioners argue that the circuit court erred when it determined the 2008
       beneficiary designation form was ambiguous and then considered parol evidence. The
       petitioners contend that, because the respondent exceeded her POA authority when she
       signed the 2010 form, the unambiguous 2008 form controlled. We disagree.
¶ 29       Generally, if the instrument at issue appears complete, certain, and unambiguous, then
       parol evidence of a prior or contemporaneous agreement is inadmissible to vary the terms of
       the instrument. In re Marriage of Johnson, 237 Ill. App. 3d 381, 391 (1992). However, it is
       well settled that the parol evidence rule does not bar the admission of extrinsic evidence on
       the question of mutual mistake, even when the instrument to be reformed is clear and
       unambiguous on its face. Id. A mutual mistake is one which is common to both contracting
       parties and each labors under the same misconception. Id. In other words, the parties are in
       actual agreement but the agreement in its written form does not express the parties’ true
       intent. Id. Thus, parol evidence may be used to show the real agreement between the parties
       when a mistake has been made and the evidence is for the purpose of making the contract
       conform to the original intent of the parties. Id.; see also First Health Group Corp. v.
                                                  -8-
       Ruddick, 393 Ill. App. 3d 40, 53 (2009) (stating that parol evidence is admissible to prove
       mutual mistake); Schaffner v. 514 West Grant Place Condominium Ass’n, 324 Ill. App. 3d
       1033, 1045 (2001) (stating that, in reformation action, parol evidence is admissible to prove
       by clear and convincing evidence the actual agreement).
¶ 30        In this case, the respondent argued that she signed the 2010 beneficiary form in order to
       correct the mistake that the decedent and Morgan Stanley made during the 2008 transfer of
       the IRA account. To prove the mistake, the respondent presented evidence of the IRA
       account’s beneficiary history, which showed the respondent had always been the named
       beneficiary. She also presented the testimony of Peterson, who confirmed that the decedent
       had always wanted the respondent to receive the IRA account and had instructed her and
       Ratay to transfer his accounts to Morgan Stanley without any changes. Peterson testified that
       she received mistaken beneficiary information from Smith Barney and gave that information
       to the decedent, who put the information on the beneficiary form. Because mutual mistake
       was at issue, the circuit court did not err in admitting parol evidence. Therefore, the
       petitioners’ argument on this issue fails.
¶ 31        Finally, petitioners argue that the circuit court erred when it refused to allow Daniel A.
       Danhauer to testify that the decedent told him in December 2008 that he intended the trust to
       be the beneficiary of the IRA. The petitioners argue that, assuming that parol evidence was
       admissible, they should have been allowed to present the testimony of Daniel A. Danhauer to
       demonstrate a triable issue of fact exists. The respondent argues that Daniel A. Danhauer’s
       testimony was inadmissible under the Dead-Man’s Act, and without it, there is no dispute
       that the 2010 beneficiary form was an attempt to correct the mistake in the 2008 form. While
       we disagree with the petitioners’ contention that the court erred in excluding Daniel A.
       Danhauer’s testimony, we agree that a triable issue of fact exists which makes summary
       judgment in this case improper.
¶ 32        We first address the court’s exclusion of Daniel A. Danhauer’s testimony or affidavit,
       noting that the petitioners failed to file a response to the respondent’s motion for summary
       judgment. However, the petitioners previously filed Daniel A. Danhauer’s affidavit and the
       trial court was obligated to consider the entire record in ruling on the motion for summary
       judgment (see March v. Miller-Jesser, Inc., 202 Ill. App. 3d 148, 160 (1990)). Regardless, as
       the trial court previously determined, Daniel A. Danhauer’s statements were inadmissible
       under the Dead-Man’s Act (735 ILCS 5/8-201 (West 2012) (an interested party may not
       testify to conversations with the decedent)), and the court could not consider it (Watkins v.
       Schmitt, 172 Ill. 2d 193, 203-04 (1996) (stating that any evidence which would be
       inadmissible at trial cannot be considered by the court in support of or opposition to a motion
       for summary judgment)).
¶ 33        To render a witness incompetent to testify under the Dead-Man’s Act, the potential
       witness must have an interest in the judgment that will result in a direct, immediate monetary
       gain or loss. Michalski v. Chicago Title & Trust Co., 50 Ill. App. 3d 335, 339 (1977). Further,
       contrary to the petitioners’ argument that Daniel A. Danhauer could testify as an executor of
       the estate, the Dead-Man’s Act specifically states that an “ ‘interested person’ ” does not
       include a person who is “interested solely as executor” or other fiduciary capacity. (Emphasis
                                                  -9-
       added.) 735 ILCS 5/8-201 (West 2012). Here, Daniel A. Danhauer had an interest in the
       judgment that extended beyond his role as executor of the estate as the judgment would have
       resulted in a direct monetary gain or loss for him. Accordingly, the court did not err in
       refusing to consider Daniel A. Danhauer’s affidavit or refusing to allow him to testify.
¶ 34       We are left to consider whether summary judgment was appropriate in this case.
       Reformation of a contract based on mutual mistake should be allowed only when clear and
       convincing evidence compels the conclusion that the instrument does not properly reflect the
       true intent of the parties. Parrish v. City of Carbondale, 61 Ill. App. 3d 500, 505 (1978).
       Whether the evidence offered to support the claim of mutual mistake is sufficient to
       overcome the presumption that the written instrument expressed the true intent of the parties
       is primarily a question that the trier of fact must determine. Id. at 506. Here, the trial court
       determined that the evidence presented was sufficient to prove mutual mistake in a summary
       judgment proceeding.
¶ 35       Summary judgment is appropriate where the pleadings, depositions, admissions,
       affidavits and exhibits submitted to the trial court reveal that there is no genuine issue of
       material fact and that the movant is entitled to judgment as a matter of law. 735 ILCS
       5/2-1005 (West 2012); Upper Level, Inc. v. Provident Venture Corp., 209 Ill. App. 3d 964,
       967 (1991). “A triable issue of fact exists where there is a dispute as to a material fact or
       where, although the facts are not in dispute, reasonable minds might differ in drawing
       inferences from those facts.” Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 31
       (1999). Summary judgment is a drastic remedy and should be allowed only when the right of
       the moving party is free and clear from doubt. Id. We review de novo a circuit court order
       granting summary judgment. Id. at 30.
¶ 36       In this case, the respondent presented the testimony of Ratay and Peterson to support her
       claim that the decedent and Morgan Stanley mistakenly believed that the IRA transferred in
       2008 without any changes to the beneficiary. Ratay and Peterson both testified that the
       decedent instructed them to transfer his accounts without making any changes. However,
       Ratay admitted that it was possible that the decedent had changed his mind, and Peterson
       admitted that the decedent filled out the beneficiary paperwork. Without any evidence from
       the decedent himself that he mistakenly changed the IRA beneficiary during the 2008
       account transfer, a genuine issue of material fact remained as to whether the mistake was
       mutual. Whether the mistake had been mutual required the court to assess the credibility of
       Ratay and Peterson and determine the weight to place on their testimony, which are duties of
       the trier of fact. Coole v. Central Area Recycling, 384 Ill. App. 3d 390, 396 (2008) (the trial
       court cannot make credibility determinations or weigh evidence in deciding a motion for
       summary judgment). When considering a summary judgment motion, the circuit court does
       not decide a question of fact but, rather, determines whether one exists. Id. Here, the circuit
       court decided a question of fact, namely, that the 2008 beneficiary form did not reflect the
       true intent of the decedent, which is not a question properly decided in a summary judgment
       proceeding. See Giannetti v. Angiuli, 263 Ill. App. 3d 305, 313 (1994) (“Summary judgment
       is particularly inappropriate where, as here, the parties seek to draw inferences on questions

                                                   - 10 -
       of intent.”). Accordingly, the circuit court erred in granting the respondent’s motion for
       summary judgment.
¶ 37       Based on the foregoing reasons, we affirm the judgment of the circuit court of Cook
       County which denied the petitioners’ request for substitution of judge for cause, admitted
       parol evidence, and refused to admit the testimony of the petitioners’ witness; however, we
       reverse the judgment of the circuit court which granted summary judgment in favor of the
       respondent and remand the cause for further proceedings.

¶ 38      Affirmed in part; reversed in part.
¶ 39      Cause remanded.




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