                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           Bjork v. O’Meara, 2012 IL App (1st) 111617




Appellate Court            COLLEEN BJORK, Plaintiff-Appellant, v. FRANK P. O’MEARA,
Caption                    Defendant-Appellee.



District & No.             First District, Third Division
                           Docket No. 1-11-1617


Filed                      January 11, 2012
Rehearing denied           February 15, 2012
Held                       The trial court properly dismissed as untimely plaintiff’s complaint
(Note: This syllabus       alleging that defendant, as the independent representative of decedent’s
constitutes no part of     estate, tortiously interfered with plaintiff’s testamentary expectancy of
the opinion of the court   being named as the pay-on-death beneficiary of a bank account, since the
but has been prepared      six-month statute of limitations for a will contest in section 8-1 of the
by the Reporter of         Probate Act applied to plaintiff’s complaint and the complaint was filed
Decisions for the          more than six months after decedent’s will was admitted to probate.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 10-L-11857; the
Review                     Hon. Michael R. Panter, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Kurt J. LeVitus, of LeVitus Law Offices, of Chicago, for appellant.
Appeal
                            Kris Daniel, of Chicago, for appellee.


Panel                       JUSTICE MURPHY delivered the judgment of the court, with opinion.
                            Presiding Justice Steele and Justice Salone concurred in the judgment and
                            opinion.



                                              OPINION

¶1          Plaintiff, Colleen Bjork, appeals from an order of the circuit court of Cook County
        dismissing her complaint against defendant, Frank P. O’Meara. On appeal, plaintiff contends
        that the circuit court erred in applying the statute of limitations for a will contest to her
        complaint and dismissing it as untimely. For the reasons that follow, we affirm.

¶2                                        BACKGROUND
¶3          Frank J. Dama passed away on February 18, 2009, and the entirety of his estate was then
        distributed to defendant and his wife pursuant to his will. On February 24, 2009, defendant
        filed Dama’s will with the clerk of the circuit court of Cook County. Plaintiff’s counsel then
        entered his appearance on plaintiff’s behalf and defendant filed a petition for probate of will
        and for letters testamentary. On April 16, 2009, the circuit court entered an order admitting
        the will to probate and appointing defendant as the independent representative of Dama’s
        estate. In May and June 2009, plaintiff filed petitions for the issuance of citations to discover
        information and recover property to The Northern Trust Company (Northern Trust). Plaintiff
        asserted that defendant considered the assets contained in a Northern Trust bank account as
        belonging to the estate and that she was the rightful owner of such assets. On July 14, 2009,
        the court entered an order allowing the issuance of a citation for discovery of information to
        Northern Trust, which then provided plaintiff with numerous requested documents. On
        October 16, 2009, plaintiff filed a petition for leave to depose Mary Williams, a Northern
        Trust employee, in furtherance of the discovery citation, and the court denied that petition.
        Plaintiff filed a motion to reconsider and clarify the denial of her petition, and the court
        denied her motion. On April 2, 2010, defendant filed a final report as independent
        representative of Dama’s estate and the court entered an order discharging him from his role
        as independent representative and closing the estate.
¶4          On October 15, 2010, plaintiff filed a complaint against defendant for tortious
        interference with a testamentary expectancy in which she asserted that Dama had planned to
        name her as the pay-on-death beneficiary of a Northern Trust bank account. Plaintiff alleged
        that defendant had interfered with Dama’s plan to do so by fraud, undue influence,
        misrepresentation, or other tortious means, that he had benefitted from his tortious conduct

                                                  -2-
     where the proceeds of the account were distributed to him and his wife pursuant to Dama’s
     will, and that she would have been named the beneficiary of the account if not for
     defendant’s wrongdoing. Plaintiff requested the court enter judgment in her favor in an
     amount equal to $566,695.52, plus interest, and award her attorney fees and expenses.
¶5       On December 3, 2010, defendant filed a motion to dismiss plaintiff’s complaint asserting,
     inter alia, that her action was untimely where it was not commenced within the six-month
     statute of limitations for a will contest set forth in section 8-1 of the Probate Act of 1975
     (Probate Act) (755 ILCS 5/8-1 (West 2008)). Defendant maintained that Dama’s will was
     admitted to probate on April 16, 2009, and that plaintiff was therefore required to file a will
     contest or tort claim by October 16, 2009, but did not do so. Plaintiff responded that her
     complaint was not subject to section 8-1 of the Probate Act because she had alleged a tort
     claim against defendant and was not contesting the validity of Dama’s will. On May 31,
     2011, the circuit court granted defendant’s motion to dismiss, finding that plaintiff’s action
     was untimely where she participated in the probate proceedings but did not contest the will
     and failed to file her claim until well after the six-month statute of limitations had run.
     Plaintiff now appeals from that order.

¶6                                          ANALYSIS
¶7        Plaintiff contends that the circuit court erred in granting defendant’s motion to dismiss
     because section 8-1 of the Probate Act does not apply to her complaint. In ruling on a motion
     to dismiss, a court must interpret all pleadings and supporting documents in the light most
     favorable to the nonmoving party, and this court will review the grant of such a motion de
     novo. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352 (2008).
¶8        Pursuant to section 8-1 of the Probate Act, an individual must file a petition to contest
     the validity of a will within six months of the date on which the will is admitted to probate.
     755 ILCS 5/8-1 (West 2008). Although a tort action for interference with a testamentary
     expectancy is distinct from a petition to contest the validity of a will in several important
     respects, Illinois courts have applied the six-month statute of limitation set forth in section
     8-1 of the Probate Act to such tort claims in certain circumstances. In re Estate of Ellis, 236
     Ill. 2d 45, 51-53 (2009).
¶9        In Robinson v. First State Bank of Monticello, 97 Ill. 2d 174, 186 (1983), our supreme
     court held that the circuit court correctly dismissed the plaintiffs’ claim for tortious
     interference with their testamentary expectancy where it was not filed within the six-month
     limitation period for a will contest. In doing so, the court determined that the validity of the
     will at issue had been established where it was not contested in a timely will contest and that
     the plaintiffs’ claim was based on the assertion that the decedent’s estate should pass to them
     through intestacy because her will was the product of the defendant’s fraud and undue
     influence and therefore invalid. Id. at 182-84. The court held that the purpose of section 8-1
     of the Probate Act was “to limit the time within which the validity of a will may be
     questioned and to create stability in the administration of estates” and that allowing the
     plaintiffs to maintain their tort action would defeat that purpose because they would then be
     provided with a second opportunity to challenge the validity of the will. Id. at 185. The court


                                               -3-
       also clarified:
            “[W]e believe that section 8-1 was enacted in an attempt to make the administration of
            an estate as orderly as possible because of the gravity of the interests at stake; we
            therefore refuse to have section 8-1 circumvented by allowing the plaintiffs in this case
            to maintain a tort action which in its practical effect would invalidate a will that has
            become valid under the Probate Act of 1975.” Id. at 186.
¶ 10        In In re Estate of Ellis, 236 Ill. 2d 45, the plaintiff alleged that the defendant interfered
       with its inheritance expectancy by unduly influencing the decedent to provide him with
       numerous gifts and to execute a new will naming him as the sole beneficiary and heir. The
       court held that the plaintiff’s tort claim was not subject to the six-month limitation period set
       forth in section 8-1 because it did not know that it was a beneficiary of the decedent’s
       previous will until more than two years after the final will had been admitted to probate and
       a successful will contest would not have furnished it with the relief sought in its complaint.
       Id. at 54-56.
¶ 11        In doing so, the court noted that “[t]he concern articulated in Robinson about the
       ‘practical effect’ of allowing the plaintiffs to maintain the tort action must be read in the
       context of the facts of that case,” and that unlike the plaintiff in Ellis, “the plaintiffs in
       Robinson could have obtained complete relief had they filed a timely will contest.” Id. at 54.
       The court determined that “[i]n the instant case, we cannot say that a will contest was
       ‘available’ to [the plaintiff], nor that a successful will contest would have furnished the relief
       sought by [the plaintiff] in its tort action.” Id. The court explained that unlike in Robinson
       where the plaintiffs chose not to contest the will, the plaintiff in Ellis never had the
       opportunity to contest the will because it was unaware of its bequest in the previous will until
       well after the final will had been admitted to probate. Id. The court further explained that a
       successful will contest would not have provided the plaintiff with sufficient relief because
       it could have only recovered assets that were part of the decedent’s estate and could not have
       reached the gifts given to the defendant during the decedent’s lifetime. Id. at 56. In
       conclusion, the court emphasized “that our holding applies to the particular parties under the
       circumstances of this case and does not extend to a plaintiff who fails to bring a tort claim
       within the period for filing a will contest, where the will contest remedy was available.” Id.
       at 56-57.
¶ 12        Plaintiff asserts that the supreme court’s holding in Ellis controls the outcome of this
       appeal and directs that her complaint is not subject to section 8-1 of the Probate Act because
       she is not contesting the validity of Dama’s will and its invalidation would not provide her
       with adequate relief. Defendant responds that this case is distinguishable from Ellis because
       plaintiff could have filed her claim within the six-month limitation period and there were
       sufficient assets in Dama’s estate to provide her with the relief sought. As the holding in Ellis
       does not apply to a plaintiff who fails to bring a tort claim within the limitation period set
       forth in section 8-1 when the will contest remedy was “available” (id.) and plaintiff did not
       file her complaint within six months of the date on which Dama’s will was admitted to
       probate, Ellis will not apply in this case if the will contest remedy was “available” to
       plaintiff.


                                                  -4-
¶ 13       There is no dispute that plaintiff could have filed her complaint within the six-month will
       contest limitation period where she was aware of the probate proceedings as to Dama’s will
       and participated in them. See In re Estate of Jeziorski, 162 Ill. App. 3d 1057, 1064 (1987)
       (plaintiffs need not exhaust their probate remedies before bringing an action in tort).
       However, it is also clear that a timely and successful will contest would not have provided
       plaintiff with the relief she is seeking because she has no claim to the bank account at issue
       pursuant to rules of intestacy or a bequest in a previous will and the invalidation of Dama’s
       final will would grant her no such rights. Thus, this court must decide whether the will
       contest remedy was “available” to plaintiff because she could have filed her tort claim within
       the six-month limitation period or whether it was not “available” to plaintiff because a
       successful will contest could not have provided her with sufficient relief.
¶ 14       In Ellis, 236 Ill. 2d at 54, the court initially found Robinson to be distinguishable because
       the plaintiffs in that case could have obtained complete relief had they filed a timely will
       contest, but had instead agreed not to do so as part of a settlement agreement with the estate.
       The court then explained in the next sentence that “[i]n the instant case, we cannot say that
       a will contest was ‘available’ to [the plaintiff], nor that a successful will contest would have
       furnished the relief sought by [the plaintiff] in its tort action.” Id. Over the remainder of that
       paragraph and the whole of the ensuing paragraph, the court considered the fact that the
       plaintiff was not aware of its expectancy under the earlier will or the defendant’s conduct
       until after the limitation period had run and determined that the plaintiff did not have a fair
       opportunity to pursue “a remedy” in probate. Id. at 54-56. Over the following two
       paragraphs, the court determined that a timely will contest would not have provided the
       plaintiff with sufficient relief because it could have only recovered assets that were part of
       the decedent’s estate. Id. at 56.
¶ 15       Thus, the court addressed the issue of the availability of a will contest remedy separately
       from the issue of whether a will contest would provide the plaintiff with sufficient relief and
       considered the plaintiff’s ability to pursue “a remedy” during probate in determining that a
       will contest was not “available.” As such, pursuant to Ellis, a will contest remedy is
       “available” to a plaintiff where she has the opportunity to obtain sufficient relief in probate
       by a will contest or a tort claim.
¶ 16       In this case, the parties do not dispute that plaintiff could have filed her complaint within
       the six-month will contest limitation period where she was aware of the probate proceedings
       as to Dama’s will and participated in them. In addition, plaintiff could have obtained the
       relief she is seeking by bringing a successful tort claim while Dama’s will was in probate
       where the bank account at issue was part of the estate. Thus, the will contest remedy was
       “available” to plaintiff and the holding in Ellis does not apply to this case because plaintiff
       had the opportunity to obtain sufficient relief in probate by filing her tort claim within the
       six-month limitation period for a will contest, but failed to do so.
¶ 17       We therefore conclude that the six-month limitation period set forth in section 8-1 of the
       Probate Act applies to plaintiff’s complaint and that the circuit court did not err in dismissing
       her complaint as untimely. As stated earlier, the purpose of section 8-1 of the Probate Act
       is “to limit the time within which the validity of a will may be questioned and to create
       stability in the administration of estates.” Robinson, 97 Ill. 2d at 185. In addition, a plaintiff

                                                  -5-
       will not be allowed to circumvent section 8-1 by maintaining a tort action that would have
       the practical effect of invalidating a will that has become valid. Id. at 186. In this case, the
       validity of Dama’s will was established under the Probate Act where it was not contested
       during the six-month time period provided in section 8-1 (Fitch v. McDermott, Will &
       Emery, LLP, 401 Ill. App. 3d 1006, 1019 (2010)) and the entirety of Dama’s estate was
       distributed to defendant and his wife pursuant to that will. Thus, plaintiff’s tort claim would
       have the practical effect of invalidating that portion of Dama’s will granting the bank account
       at issue to defendant.

¶ 18                                   CONCLUSION
¶ 19      Accordingly, we affirm the judgment of the circuit court of Cook County.

¶ 20      Affirmed.




                                                 -6-
