                                                                                   FILED
                                    2016 IL App (4th) 150844                   November 3, 2016
                                                                                  Carla Bender
                                         NO. 4-15-0844                        4th District Appellate
                                                                                    Court, IL
                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT

 In re ESTATE OF JOHN O. SCHUMANN, Deceased                 )   Appeal from
 (Hanna Struever and Nathan Struever,                       )   Circuit Court of
                 Petitioners-Appellants,                    )   Calhoun County
                 v.                                         )   No. 14P8
 Mary Ann Herron, a/k/a Mary Ann Yoswig, as Execu-          )
 trix of the Estate of John O. Schumann,                    )   Honorable
                 Respondent-Appellee).                      )   John Frank McCartney,
                                                            )   Judge Presiding.


               JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
               Justices Appleton and Pope concurred in the judgment and opinion.

                                            OPINION

¶1             John O. Schumann (Pete) died in July 2013. In March 2014, Mary Ann Herren

(otherwise known as Mary Ann Yoswig)—Pete’s caretaker and holder of his power of attorney

during the later years of his life—petitioned to probate a will Pete executed in October 2007,

which appointed Herren as executrix and devised Pete’s entire estate to be administered pursuant

to a trust agreement. Hanna and Nathan Struever—the children of Pete’s late wife, Alice—

petitioned to contest the 2007 will. The Struevers claimed that Pete lacked the capacity to exe-

cute the 2007 will and that Herren exerted undue influence over Pete in creating it. The Struevers

further asserted that Pete executed a valid will and trust in 2002, which would benefit the

Struevers.

¶2             Herren moved to dismiss the Struevers’ will contest, arguing that under the su-

preme court’s decision in In re Estate of Schlenker, 209 Ill. 2d 456, 808 N.E.2d 995 (2004), the
Struevers lacked standing. The trial court agreed and dismissed the Struevers’ petition. The

Struevers appeal, and we reverse.

¶3                                     I. BACKGROUND

¶4             Pete died in 2013. In March 2014, Herren filed a petition to probate Pete’s Octo-

ber 18, 2007, will, which was attached to Herren’s petition and which named her as executrix.

The will explicitly revoked “all prior wills” and bequeathed Pete’s entire estate to “the Trustee

under the Trust Agreement dated October 18, 2007.” (The referenced trust agreement was not

attached to Herren’s petition to probate and does not appear anywhere in the record on appeal.)

¶5             In December 2014, the Struevers filed an amended petition to contest the 2007

will. The amended petition alleged that (1) Pete lacked the testamentary capacity to execute the

2007 will and (2) Herren exerted undue influence over Pete when executing the will. The

Struevers alleged further that in October 2002, Pete and Alice executed “mutual” wills and trusts.

Attached to the Struevers’ petition to contest were Alice’s 2002 will and trust agreement and

Pete’s 2002 trust agreement. The Struevers’ petition did not explain why Pete’s 2002 will was

not attached. The Struevers requested that the trial court set aside the 2007 will and distribute

Pete’s estate according to his 2002 will.

¶6             In January 2015, Herren filed a motion to dismiss the Struevers’ amended peti-

tion. Herren argued that the Struevers’ petition failed to meet the pleading requirements of sec-

tion 2-603 of the Code of Civil Procedure (735 ILCS 5/2-603 (West 2014)) and the mailing re-

quirements of section 8-1(b) of the Probate Act of 1975 (755 ILCS 5/8-1(b) (West 2014)). In

March 2015, Herren filed a supplement to her motion to dismiss, in which she added an addi-

tional argument: that the Struevers lacked standing to challenge the 2007 will. Citing Schlenker,

Herren claimed that the Struevers could not establish standing as legatees to the 2002 will be-



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cause the 2007 will explicitly revoked all prior wills, thus voiding the 2002 will and precluding

any claim to standing that relied on it.

¶7             In June 2015, the trial court denied Herren’s motion to dismiss. The court deter-

mined that the Struevers had standing as legatees to the 2002 will and as creditors to the 2007

will.

¶8             On July 9, 2015, Herren filed a motion to reconsider, reiterating her argument

that, pursuant to Schlenker, any prior will of Pete’s was revoked by his 2007 will and could not

be relied upon to establish standing. In addition, Herren added an argument that the 2002 will

should be presumed to be revoked because it “has never been produced and its current existence

is speculative.”

¶9             In August 2015, the trial court conducted a hearing on Herren’s motion to recon-

sider and, in September 2015, entered an order granting the motion. The court determined that

under the supreme court’s holding in Schlenker, Pete’s 2002 will must be considered revoked

and void and could not be used to establish standing. The court also accepted Herren’s argument

that the 2002 will must be presumed to be revoked because the Struevers produced no evidence

establishing its existence or validity. Therefore, the court concluded that the Struevers lacked

standing to challenge Pete’s 2007 will as legatees. In addition, the court determined that the

Struevers were not creditors of Pete’s estate. The court therefore concluded that the Struevers did

not have standing as “interested person[s]” under the Probate Act and granted Herren’s motion to

dismiss the Struevers’ amended petition.

¶ 10           This appeal followed.

¶ 11                                       II. ANALYSIS

¶ 12           The Struevers argue that the trial court erred by dismissing their petition to con-



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test Pete’s 2007 will for lack of standing. Specifically, the Struevers argue that they had standing

to challenge Pete’s 2007 will because they were legatees to Pete’s 2002 will. Herren responds by

arguing that under Schlenker, the Struevers cannot rely on their status under the 2002 will to es-

tablish standing because the 2007 will revoked all prior wills, thereby making the 2002 will void.

Herren argues further that even if Schlenker does not preclude the Struevers’ standing, the

Struevers did not establish standing because they failed to attach the 2002 will to their petition to

contest the 2007 will.

¶ 13                     A. Standing in General and the Standard of Review

¶ 14           In Illinois, lack of standing is an affirmative defense that must be pleaded and

proved by the defendant. The appropriate vehicle for alleging lack of standing is a motion to

dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure, which permits involun-

tary dismissal when “the claim asserted *** is barred by other affirmative matter avoiding the

legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2014). Lack of standing

qualifies as an “affirmative matter” within the meaning of section 2-619(a)(9). Schlenker, 209 Ill.

2d at 461, 808 N.E.2d at 998. In this case, although Herren did not label her motion as a motion

to dismiss under section 2-619(a)(9) (the motion was titled “motion to dismiss” and did not cite

any section of the Code), we will consider it as such. Cf. Sandholm v. Kuecker, 2012 IL 111443,

¶ 54, 962 N.E.2d 418 (considering a motion to dismiss asserting immunity as a section 2-619

motion, despite its label as a section 2-615 motion).

¶ 15           “The doctrine of standing ensures that issues are raised only by parties having a

real interest in the outcome of the controversy.” Powell v. Dean Foods Co., 2012 IL 111714,

¶ 35, 965 N.E.2d 404. “A party must assert its own legal rights and interests, rather than assert a

claim for relief based upon the rights of third parties.” Id. ¶ 36. “The gravamen of standing is a



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real interest in the outcome of the controversy ***.” Stevens v. McGuireWoods LLP, 2015 IL

118652, ¶ 23, 43 N.E.3d 923.

¶ 16           The respondent bears the burden to plead and prove lack of standing. Schlenker,

209 Ill. 2d at 461, 808 N.E.2d at 998. Accordingly, a plaintiff need not allege facts establishing

standing. Id. When standing is challenged in a section 2-619(a)(9) motion to dismiss, a court

must accept as true all well-pleaded facts in the plaintiff’s complaint and all inferences that can

reasonably be drawn in the plaintiff’s favor. Id. The court should grant the motion to dismiss on-

ly if the plaintiff could prove no set of facts that would support a cause of action. Id.

¶ 17           An order granting a motion to dismiss for lack of standing presents a question of

law that we review de novo. Id.

¶ 18                             B. Standing Under the Probate Act

¶ 19           Although standing is generally a “common law concept” (In re N.C., 2014 IL

116532, ¶ 42, 12 N.E.3d 23), standing under the Probate Act is entirely a creature of statute.

Schlenker, 209 Ill. 2d at 461, 808 N.E.2d at 998. Pursuant to section 8-1(a) of the Probate Act,

“any interested person” may file a petition to contest the validity of a will. 755 ILCS 5/8-1(a)

(West 2014). The Probate Act defines an “interested person” as the following:

               “one who has or represents a financial interest, property right or fi-

               duciary status at the time of reference which may be affected by

               the action, power or proceeding involved, including without limita-

               tion an heir, legatee, creditor, person entitled to a spouse’s or

               child’s award and the representative.” (Emphases added.) 755

               ILCS 5/1-2.11 (West 2014).




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¶ 20            C. Case Law Prior to Schlenker Concerning Standing of Legatees

¶ 21           Until recently, Illinois courts were in agreement that a legatee under a previously

executed will could file a petition to contest a subsequent will so long as the legatee had “ ‘a di-

rect, pecuniary, existing interest which would have been detrimentally affected by the probate’ of

a subsequent will.” In re Estate of Malcolm, 234 Ill. App. 3d 962, 964-65, 602 N.E.2d 41, 43

(1992) (quoting Kelley v. First State Bank, 81 Ill. App. 3d 402, 413, 401 N.E.2d 247, 255

(1980)); see also In re Estate of Keener, 167 Ill. App. 3d 270, 521 N.E.2d 232 (1988); In re Es-

tate of Watson, 127 Ill. App. 3d 186, 468 N.E.2d 836 (1984); In re Estate of King, 91 Ill. App. 2d

342, 348, 235 N.E.2d 276, 279 (1968) (“petitioners, as devisees and legatees of a prior will of the

decedent, were ‘interested persons’ within the meaning” of the Probate Act); Wilson v. Bell, 315

Ill. App. 418, 43 N.E.2d 162 (1942).

¶ 22           Although Keener, 167 Ill. App. 3d 270, 521 N.E.2d 232, agreed with the general

rule about a legatee’s standing described above, it distinguished that rule based on the specific

facts of that case. In Keener, the decedent executed several wills and codicils. Id. at 271, 521

N.E.2d at 233. After the decedent’s death, the petitioner challenged the decedent’s final will,

which was being probated. Id. The Keener court concluded that the petitioner lacked standing to

bring the challenge because the petitioner did not have a pecuniary interest in the prior will that

immediately preceded the will being probated. Id. at 274, 521 N.E.2d at 235.

¶ 23             D. Schlenker’s Interpretation of Standing Under the Probate Act

¶ 24           In Schlenker, 209 Ill. 2d 456, 808 N.E.2d 995, the decedent, Levi Schlenker, exe-

cuted four separate wills before he died. He was survived by his two children, Troy and Imo-

gene. Levi’s fourth and final will—which granted Imogene nothing—was petitioned to probate,

after which Imogene filed a petition contesting its validity. In response, the executor of the will,



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Troy, filed a motion to dismiss the will contest under section 2-619(a)(9) of the Code, arguing

that Imogene lacked standing to challenge the will.

¶ 25            Specifically, Troy argued that even if Imogene successfully challenged the final

will, the earlier wills likewise granted her nothing. As a result, Imogene would need to success-

fully challenge all four wills before she could hope to receive any share of the estate, at which

point she would take as Levi’s heir under the intestacy statutes. Troy contended that, similar to

the situation in Keener, because Imogene’s petition challenged only the final will, the will con-

test provided her no possibility of obtaining an interest in Levi’s estate. That is, even if Imo-

gene’s petition to contest the final will were successful, three prior wills still stood between her

and the intestacy statutes. Therefore, Troy argued, Imogene lacked standing because she did not

have a real interest in the outcome of the proceedings. The trial court agreed and granted Troy’s

motion to dismiss, but the appellate court reversed.

¶ 26            The supreme court agreed with the appellate court, providing three reasons why

the prior wills did not affect Imogene’s standing to contest the final will. The “more fundamental

reason” was that Imogene had an unconditional right to challenge the will as Levi’s heir. Id. at

464, 808 N.E.2d at 1000. The court noted that section 1-2.11 of the Probate Act defined an “in-

terested person,” as anyone whose financial interest may be affected by the will contest, “includ-

ing without limitation an heir.” (Emphasis and internal quotation marks omitted.) Id. at 466, 808

N.E.2d at 1001; 755 ILCS 5/1-2.11 (West 2002). The court interpreted that language to mean

that “one’s status as an heir is sufficient, in itself, to confer standing to contest a will’s validity.”

(Internal quotation marks omitted.) Schlenker, 209 Ill. 2d at 466. That is, an heir need not estab-

lish in every case a tangible interest in challenging a will. Instead, the Probate Act creates a

bright-line rule of law that a decedent’s heir always has standing to challenge any will executed



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by the decedent. Therefore, because Imogene had an unconditional right to challenge Levi’s will

as his heir, any prior wills executed by Levi were irrelevant to the question of standing. Id. at

465, 808 N.E.2d at 1000.

¶ 27           Although the court’s holding described above was sufficient to decide the case,

the court included two additional reasons why Levi’s prior wills did not affect Imogene’s stand-

ing. The court’s second reason for discounting Levi’s three prior wills was that “our presumption

must be that none of [the prior] wills have any legal effect.” Id. at 463, 808 N.E.2d at 999. The

court explained that Levi’s final will contained a clause revoking all prior wills and that Levi had

made no later effort to revive those wills. Thus, the court concluded that “[a]t this stage of the

proceedings, we must therefore regard all of the prior wills as void.” Id. Presuming that the prior

wills were void, the court concluded that those wills could not affect Imogene’s standing.

¶ 28           The Schlenker court then provided a third reason why the prior wills did not affect

Imogene’s standing: Troy’s argument “assumes that Imogene would be no better off under any

of the earlier wills” than she is under the final will. Id. The court explained that Levi’s second

will had never been produced and that his first will established a trust to provide for Imogene. As

a result, Troy had not established his claim that Imogene would not take under any of the three

prior wills and would need to successfully contest all four wills before she would receive an in-

terest in Levi’s estate. The court explained that Troy was “attempt[ing] to sidestep these defi-

ciencies by shifting the burden of pleading and proof to Imogene.” Id. at 464, 808 N.E.2d at

1000. The court reiterated that Troy, as the respondent, had the burden to plead and prove Imo-

gene’s lack of standing. The court concluded that Troy had failed to meet that burden and, there-

fore, his motion to dismiss should have been denied.

¶ 29           Justice Garman specially concurred, disagreeing with the majority’s holding that



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the Probate Act grants an heir unconditional standing to challenge a will. Id. at 467-68, 808

N.E.2d at 1001-02 (Garman, C.J., specially concurring). Under Justice Garman’s interpretation,

an “interested person” under the Probate Act must have an “affected interest” in the particular

proceedings. Id. at 467, 808 N.E.2d at 1001. According to Justice Garman, an heir who stood to

receive the same share of an estate under the decedent’s will as she would under the intestacy

statutes would lack standing to challenge the will. Justice Garman explained that a contrary rule

would allow for mischief: an heir without a legally cognizable interest in the proceedings could

file a will contest to affect other parties’ interests, possibly for personal, nonlegal reasons. Id. at

468, 808 N.E.2d at 1002.

¶ 30            Justice Garman also took issue with the majority’s assertion that, because Levi’s

final will revoked all prior wills, the prior wills were void and could not be used to assess Imo-

gene’s standing. Justice Garman cited Crooker v. McArdle, 332 Ill. 27, 163 N.E. 384 (1928), for

the proposition that a will is not effective for any purpose—including revoking other wills—until

the will is admitted to probate. An order admitting a will to probate is not final until the time for

filing a will contest has run. Therefore, the revocation clause in Levi’s final will was not yet in

effect when Imogene filed her will contest. As a result, the prior wills had not yet become void

and should be considered when determining whether Imogene had an interest in challenging the

final will. Justice Garman continued by noting that a contrary rule would contradict long-

standing Illinois law and promote fraud. Schlenker, 209 Ill. 2d at 468-70, 808 N.E.2d at 1002-03.

¶ 31                                   E. Standing in This Case

¶ 32            The Struevers argue that the trial court erred by granting Herren’s motion to dis-

miss the Struevers’ petition to contest Pete’s 2007 will. Specifically, the Struevers argue that

they had standing as legatees to Pete’s 2002 will. In response, Herren argues that Schlenker pre-



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cludes standing for the Struevers as legatees to the 2002 will because the 2007 will revoked all

prior wills.

¶ 33                  1. Schlenker Does Not Proscribe Standing in This Case

¶ 34            Herren argues that Schlenker stands for the proposition that a legatee under a prior

will does not have standing to challenge a current will where the current will contains a clause

revoking the prior will. We disagree with Herren’s reading of Schlenker.

¶ 35            The “fundamental” holding of Schlenker was that under the Probate Act, an heir

unconditionally has standing to contest a will. Id. at 464, 808 N.E.2d at 1000. In further support

of that holding, the court went on to provide additional discussion unnecessary to its decision.

People v. Flatt, 82 Ill. 2d 250, 261, 412 N.E.2d 509, 515 (1980) (the precedential scope of a de-

cision is limited to the facts before the court). That additional discussion included the following

proposition: “At this stage of the proceedings, we must therefore regard all of the prior wills as

void.” Schlenker, 209 Ill. 2d at 463, 808 N.E.2d at 999. For the following reasons, we conclude

that the aforementioned statement from Schlenker does not affect the Struevers’ standing as lega-

tees in this case.

¶ 36            The Schlenker court’s presumption that the prior wills were void was based on the

applicable burden of proof, instead of a broader statement about the power of a probated will to

revoke prior wills. As the court explained, “At this stage of the proceedings, we must therefore

regard all of the prior wills as void.” (Emphasis added.) Id. The court reached that conclusion

because, “[a]t this stage of the proceedings, there is no evidence to support [the prior wills’] va-

lidity.” Id. at 462, 808 N.E.2d at 999. Without any evidence of the prior wills’ validity, the court

concluded that its “presumption must be that none of those wills have any legal effect” because

the final will included a clause revoking the prior wills. Id. at 463, 808 N.E.2d at 999. The criti-



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cal aspect of the court’s reasoning was that it was making a presumption against the respondent,

Troy, and in favor of the plaintiff, Imogene. The burden of proof applicable when deciding a sec-

tion 2-619 motion to dismiss required the court to “accept as true all well-pleaded facts in plain-

tiff’s complaint and all inferences that can reasonably be drawn in plaintiff’s favor.” Id. at 461,

808 N.E.2d at 998. In Schlenker, one inference that could be drawn in Imogene’s favor was that

all the prior wills were void and therefore could not affect her standing. We read Schlenker less

as establishing a new rule that all prior revoked wills must be considered void than as reaffirming

the well-established rule that all inferences must be drawn in the plaintiff’s favor when consider-

ing a section 2-619 motion to dismiss.

¶ 37           Our reading of Schlenker is buoyed by that court’s reasoning immediately follow-

ing its decision to consider the prior wills as void. The court went on to consider the possibility

that those prior wills might instead be valid, in direct contradiction of its previous statement that

it was presuming that the prior wills were void. The court considered that the prior wills might

grant Imogene an interest in Levi’s estate greater than she would take under the final will, which

would create a direct financial interest in Imogene’s challenging the final will. The court ex-

plained that Troy had not met his burden to prove that the prior wills did not grant Imogene such

a direct interest. The court concluded that Troy was attempting “to sidestep these deficiencies by

shifting the burden of pleading and proof to Imogene.” Id. at 464, 808 N.E.2d at 1000. The court

reiterated that it was Troy’s burden to plead and prove lack of standing.

¶ 38           The common thread tying together the Schlenker court’s reasoning is that Troy, as

the respondent, had the burden to plead and prove lack of standing. Accordingly, all inferences

were required to be drawn in Imogene’s favor. Schlenker involved a factual scenario in which

contrary inferences could be drawn in Imogene’s favor—first, that the prior wills were void and,



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second, that the prior wills gave Imogene a greater interest than the final will. The court therefore

considered both those presumptive possibilities in reaching its decision. Because the Schlenker

court’s reasoning was based on the inferences that could be drawn in the plaintiff’s favor, we de-

cline to extrapolate any broader legal holding about the efficacy of revocation clauses from its

analysis.

¶ 39           We also find compelling the long-standing case law prior to Schlenker providing

that a legatee under a prior will has standing to contest a subsequent will. See Malcom, 234 Ill.

App. 3d 962, 602 N.E.2d 41; Watson, 127 Ill. App. 3d at 189, 468 N.E.2d at 837 (“It has been

held that legatees of a prior will of a decedent, even though not heirs at law, are ‘interested’ per-

sons within the meaning of the [Probate] Act.”); Kelley, 81 Ill. App. 3d 402, 401 N.E.2d 247;

King, 91 Ill. App. 2d 342, 235 N.E.2d 276. We find it hard to fathom that the majority in

Schlenker set out to create a rule that would make such a drastic change to established precedent

without acknowledging as much.

¶ 40           We also find it difficult to conclude that the supreme court intended, as a matter

of law, to prohibit a legatee under a prior will from challenging a subsequently executed will

containing a revocation clause. Prior legatees have the kind of “real interest in the outcome” of

the controversy that is generally sufficient to establish standing. Powell, 2012 IL 111714, ¶ 35,

965 N.E.2d 404 (describing the general requirements for standing). Legatees are asserting their

“own legal rights and interests” rather than the rights of a third party. Id. ¶ 36. A rule holding that

legatees cannot challenge a will containing a revocation clause would prevent potentially inter-

ested parties from challenging suspect wills.

¶ 41           Further, unlike the factual scenarios in Schlenker and Keener, in this case, no in-

tervening wills stood between the challenged 2007 will and the 2002 will, under which the



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Struevers claimed to be beneficiaries. That is, if the Struevers successfully challenged the 2007

will, no other obstacle prevented them from immediately seeking to probate the 2002 will. The

Struevers therefore have the “direct, pecuniary, existing interest” in their will contest that the pe-

titioner lacked in Keener, 167 Ill. App. 3d at 271, 521 N.E.2d at 234.

¶ 42           In addition, we agree with the point made in Justice Garman’s special concur-

rence that a will’s clause revoking all prior wills does not become effective until the will is suc-

cessfully probated. In Crooker, 332 Ill. at 29-30, 163 N.E. at 385, the supreme court held that

“no will is legally effective until it has been admitted to probate. No will can be shown to revoke

a previous will until the subsequent will has been admitted to probate.” As we noted earlier,

Schlenker did not explicitly overrule that holding.

¶ 43           The rule stated in Crooker that no part of a will becomes effective until the will is

probated makes perfect sense. Certainly, a will’s revocation clause could not and should not be

effective if the will was the product of undue influence. And we do not know whether the will

was the product of undue influence until the will is successfully admitted to probate. Again, we

construe the Schlenker court’s presumption that the prior wills were voided by the revocation

clause as a necessary presumption because of the burden of proof and not a holding that prior

wills cannot be used to establish standing to challenge a subsequent will containing a revocation

clause.

¶ 44           Because the Struevers do not raise the argument, we have no need to determine

whether section 1-2.11 of the Probate Act (755 ILCS 5/1-2.11 (West 2014)) provides standing to

legatees as a matter of law, regardless of whether a legatee has an actual pecuniary interest in the

outcome of the will contest.

¶ 45            2. Herren Did Not Meet Her Burden to Establish Lack of Standing



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¶ 46           Applying the foregoing principles to this case, we conclude that Herren failed to

meet her burden to establish the Struevers’ lack of standing. As explained above, according to

facts pleaded in the Struevers’ petition to contest the 2007 will, they were legatees with standing

to challenge Pete’s 2002 will. Herren claims that we must presume that the 2002 will is revoked

because the Struevers have failed to attach it to their petition to contest. However, Herren’s ar-

gument is contrary to the appropriate burden of proof. At this stage of the proceedings, the

Struevers did not have the burden to plead and prove standing. Instead, Herren had the burden to

plead and prove the Struevers’ lack of standing. Herren did not meet that burden. As a result, her

motion to dismiss the Struevers’ petition to contest the 2002 will should have been denied.

¶ 47           Because we find that Herren’s motion to dismiss should have been denied based

on the Struevers’ standing as legatees, we need not address the Struevers’ standing as creditors.

¶ 48                                   III. CONCLUSION

¶ 49           For the foregoing reasons, we reverse the trial court’s judgment and remand for

further proceedings.

¶ 50           Reversed and remanded.




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