                          Illinois Official Reports                         Digitally signed by
                                                                            Reporter of Decisions
                                                                            Reason: I attest to the
                                                                            accuracy and integrity of
                                                                            this document
                                  Appellate Court                           Date: 2016.01.27 11:19:11
                                                                            -06'00'




                  In re Estate of Opalinska, 2015 IL App (1st) 143407



Appellate Court      In re ESTATE OF IRENE OPALINSKA, Deceased (David A.
Caption              Epstein, Public Administrator of Cook County, Petitioner-Appellant,
                     v. Darota Opalinska Chaban, Respondent-Appellee).



District & No.       First District, Fourth Division
                     Docket No. 1-14-3407



Filed                November 5, 2015



Decision Under       Appeal from the Circuit Court of Cook County, No. 08-P-6112; the
Review               Hon. Karen L. O’Malley, Judge, presiding.



                     Affirmed.
Judgment


Counsel on           Gary A. Weintraub, of Gary A. Weintraub, P.C., of Northfield, and
Appeal               Thomas More Leinenweber, of Leinenweber, Baroni & Daffada LLC,
                     of Chicago, for appellant.

                     Joel A. Brodsky, of Chicago, for appellee.



Panel                JUSTICE COBBS delivered the judgment of the court, with opinion.
                     Presiding Justice McBride and Justice Howse concurred in the
                     judgment and opinion.
                                             OPINION

¶1       Darota Opalinska Chaban, the daughter of Irene Opalinska, and the wife of William
     Chaban, was convicted of perjury and obstruction of justice in connection with her statements
     during the investigation of her mother’s murder. Her husband was eventually convicted of the
     murder.
¶2       This appeal involves the probate estate of Irene Opalinska. The administrator of the estate,
     the public administrator (Administrator), argued that Darota could not benefit from the estate
     for two reasons. First, section 2-6 of the Probate Act of 1975 (Act), commonly known as the
     “Slayer Statute,” prohibits Darota from inheriting her mother’s estate due to the indirect
     benefit to her husband. 755 ILCS 5/2-6 (West 2012). Moreover, the Administrator argued that
     Darota should not inherit her mother’s estate due to her “unclean hands” in the investigation of
     the murder.
¶3       The trial court rejected the Administrator’s arguments, finding that Darota is eligible to
     inherit her mother’s estate. The Administrator appeals the court’s order. For the reasons that
     follow, we affirm.

¶4                                         BACKGROUND
¶5       The following facts were established in People v. Opalinska, 2013 IL App (1st) 110486-U,
     a criminal case involving respondent, Darota Opalinska Chaban (Darota). Darota married
     William Chaban (Chaban) in Las Vegas on June 9, 2007. They returned to Chicago on June 13
     and informed Darota’s mother, Irene Opalinska, of their marriage. Irene was initially upset, but
     eventually calmed down. On June 18, 2007, Irene was discovered dead in her condominium by
     Darota and Chaban. Irene was last seen on Friday, June 15, at her place of employment. Darota
     told the police, and later a grand jury, that she had not been at her mother’s condominium that
     Friday or the rest of the weekend; that she was never in the condominium on the 15th; and that
     she was with Chaban most of the day. After Darota was confronted with phone records that
     placed her in the condominium on Friday, she admitted that she had lied and claimed that she
     was following Chaban’s instruction. Darota was convicted of perjury and obstruction of
     justice. Chaban was charged and convicted of first-degree murder of Irene and was sentenced
     to 45 years in prison.
¶6       Darota filed a petition for probate of Irene’s will in the Circuit Court of Cook County and
     the court appointed her administrator of the estate. Darota later resigned, and the trial court
     appointed the Administrator to administer the estate. The Administrator argued that Darota
     was barred from inheriting her mother’s estate by section 2-6 of the Act. 755 ILCS 5/2-6 (West
     2012). The trial court denied the Administrator’s petition, finding that Darota could inherit her
     mother’s estate because there was no evidence that Darota was involved in Irene’s murder.
¶7       The Administrator appeals, arguing that any property inherited by Darota would indirectly
     benefit Chaban since they are still married, and therefore she cannot inherit under section 2-6.
     Moreover, the Administrator argues that Darota should be barred from inheriting from her
     mother because of her “unclean hands” in lying to the police who were investigating her
     mother’s death.




                                                 -2-
¶8                                               ANALYSIS
¶9         We begin by addressing two of Darota’s arguments regarding alleged improprieties in the
       Administrator’s appeal. Darota first argues that the Administrator improperly cited to this
       court’s Illinois Supreme Court Rule 23(b) (eff. July 1, 2011) decision in her criminal case titled
       People v. Opalinska, 2013 IL App (1st) 110486-U, to establish the facts of this case. Second,
       she argues that the Administrator’s citation to her husband’s criminal case is improper because
       she was not a party to that case, and, accordingly, had no opportunity to respond to any
       allegations in that case.
¶ 10       Rule 23(e) states that written orders filed under Rule 23(b) are “not precedential and may
       not be cited by any party except to support contentions of double jeopardy, res judicata,
       collateral estoppel or law of the case.” Ill. S. Ct. R. 23(e) (eff. July 1, 2011). Our supreme court
       has held that the doctrine of collateral estoppel applies to issues determined in criminal
       convictions. American Family Mutual Insurance Co. v. Savickas, 193 Ill. 2d 378, 384 (2000).
¶ 11       “Collateral estoppel may be applied when the issue decided in the prior adjudication is
       identical with the one presented in the current action, there was a final judgment on the merits
       in the prior adjudication, and the party against whom estoppel is asserted was a party to, or in
       privity with a party to, the prior adjudication.” Du Page Forklift Service, Inc. v. Material
       Handling Services, Inc., 195 Ill. 2d 71, 77 (2001) (citing Illinois State Chamber of Commerce
       v. Pollution Control Board, 78 Ill. 2d 1, 7 (1979)).
¶ 12       Here, the Administrator does not cite to Darota’s criminal case for its legal precedent, but
       for purposes of collateral estoppel. Such use of the court’s unpublished opinion is expressly
       permitted by the rule. Thus, citation to Darota’s criminal case was appropriate. Ill. S. Ct. R.
       23(e) (eff. July 1, 2011).
¶ 13       The doctrine, however, does not apply to People v. Chaban, 2013 IL App (1st) 112588. A
       necessary element for application of collateral estoppel is that the party against whom estoppel
       was asserted, in this case, Darota, was a party to the prior adjudication. Darota was not a party
       to her husband’s criminal case. Although collateral estoppel does not apply, we may
       nonetheless take judicial notice of this court’s opinion affirming Chaban’s conviction. Aurora
       Loan Services, LLC v. Kmiecik, 2013 IL App (1st) 121700, ¶ 37 (An appellate court may take
       judicial notice of another court’s written decisions.).
¶ 14       Darota next argues that the Administrator is bringing this appeal “for an impermissible
       reason,” in that the Administrator merely wishes the court to advise it on how it should proceed
       in future cases of a similar nature. Darota argues that the Administrator is seeking an advisory
       opinion, which is not the role of the courts to provide. We reject Darota’s argument as without
       merit. There is a present controversy over whether Darota should be allowed to inherit her
       mother’s estate. In McCormick v. Robertson, a case cited by Darota, the court noted that a case
       must present an actual controversy, otherwise the court risks providing an impermissible
       advisory opinion. 2015 IL 118230, ¶ 21. A case presents an actual controversy when there is “a
       concrete dispute admitting of an immediate and definitive determination of the parties’ rights.”
       (Internal quotation marks omitted.) Id.
¶ 15       Here, the Administrator has presented a legal challenge to Darota’s right to inherit her
       mother’s estate. This controversy is definite and concrete; it is neither hypothetical nor moot
       and touches upon the legal relations of parties having adverse legal interests. See Belleville
       Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 335 (2002). That the
       Administrator may also gain insight from the court’s disposition of this case is not a reason to

                                                    -3-
       find the case non-justiciable. Accordingly, we find the Administrator’s appeal entirely
       appropriate.
¶ 16       At its root, this case presents a question of statutory construction, the principles of which
       are more than well settled. Interpretation of a statute is a question of law, which we review
       de novo. Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 439 (2010). The focus of
       statutory interpretation is to give effect to the legislature’s intent. People v. Beachem, 229 Ill.
       2d 237, 243 (2008) (citing People v. Perry, 224 Ill. 2d 312, 323 (2007)). The most reliable
       indicator of legislative intent is the language in the statute, which we afford its plain and
       ordinary meaning, without resort to other aids of statutory construction. Id.
¶ 17       We begin, then, with the language of section 2-6 of the Act, which states:
               “Person causing death. A person who intentionally and unjustifiably causes the death
               of another shall not receive any property, benefit, or other interest by reason of the
               death, whether as heir, legatee, beneficiary, joint tenant, survivor, appointee or in any
               other capacity and whether the property, benefit, or other interest passes pursuant to
               any form of title registration, testamentary or nontestamentary instrument, intestacy,
               renunciation, or any other circumstance. The property, benefit, or other interest shall
               pass as if the person causing the death died before the decedent, provided that with
               respect to joint tenancy property the interest possessed prior to the death by the person
               causing the death shall not be diminished by the application of this Section. A
               determination under this Section may be made by any court of competent jurisdiction
               separate and apart from any criminal proceeding arising from the death ***. A person
               convicted of first degree murder or second degree murder of the decedent is
               conclusively presumed to have caused the death intentionally and unjustifiably for
               purposes of this Section.
                   The holder of any property subject to the provisions of this Section shall not be
               liable for distributing or releasing said property to the person causing the death if such
               distribution or release occurs prior to a determination made under this Section.
                   If the holder of any property subject to the provisions of this Section knows or has
               reason to know that a potential beneficiary caused the death of a person within the
               scope of this Section, the holder shall fully cooperate with law enforcement authorities
               and judicial officers in connection with any investigation of such death.” 755 ILCS
               5/2-6 (West 2012).
¶ 18       The Administrator argues that even though Darota herself may not have murdered her
       mother, the Slayer Statute nonetheless bars her inheritance because of the “indirect benefit” to
       Chaban. Darota responds that section 2-6 of the Act only prohibits the person who
       intentionally and unjustifiably killed the victim, and Darota has never been directly implicated
       in her mother’s murder. Further, Darota argues that there is no evidence that Chaban will even
       receive indirect benefits from Irene’s estate, as he was sentenced to prison for 45 years.
¶ 19       The Administrator urges us to equate this case to In re Estate of Vallerius, 259 Ill. App. 3d
       350 (1994). In Vallerius the trial court found that two brothers intentionally and unjustifiably
       killed their grandmother. Id. at 352. The victim’s sole heir was her daughter, who was the
       mother of the two brothers. Id. at 351. A few months after the murder, the victim’s daughter
       died as well, leaving her two sons as her natural heirs. Id. The court found that the broad
       language of the statute indicated that the intent of the legislature was that the brothers should
       not inherit from the victim despite the fact that the inheritance was indirect and the victim’s

                                                    -4-
       estate flowed through the mother’s intermediate estate. Id. at 355. The court pointed out that
       the statute required the court to look at the murderers as if they predeceased the victim. Id.
       Thus, the brothers were legally dead when their mother’s estate inherited the estate of the
       victim. Id.
¶ 20        Vallerius is distinguishable from our case. In Vallerius the brothers who were disinherited
       were the actual murderers. Although the means of inheritance was indirect, only the murderers
       were disinherited. Here, the Administrator seeks to disinherit a party never accused of murder,
       on the chance that the murderer might receive an indirect benefit.
¶ 21        A plain reading of section 2-6 of the Act would not bar Darota’s inheritance. The statute
       precludes someone “who intentionally and unjustifiably causes the death of another” from
       receiving property “by reason of the death.” (Emphasis added.) 755 ILCS 5/2-6 (West 2012).
       If Chaban were to receive any of Irene’s property, it would be because Darota transferred the
       property to him, not because of, or by reason of, Irene’s death. Further, the statute states that
       property “shall pass as if the person causing the death died before the decedent.” If we apply
       the words of the statute to our case, and consider Chaban to have predeceased Irene, Darota
       would still inherit Irene’s estate. By contrast, the murderers in Vallerius stood to receive their
       grandmother’s property by reason of her death.
¶ 22        The Administrator additionally argues that this case is similar to In re Estate of Mueller, a
       case in which the wife murdered her husband. 275 Ill. App. 3d 128, 131 (1995). In Mueller, the
       husband’s will provided that, upon his death, half of his estate would go to his wife, but if she
       predeceased him, the wife’s children from a previous marriage would receive half of his estate.
       Id. at 130. Although the trial court found it obvious that the wife was precluded from inheriting
       from her husband’s estate, it certified a question of law for the appellate court to answer under
       Illinois Supreme Court Rule 308(b) as to whether the Slayer Statute prevented the husband’s
       non-biological children from inheriting as contingent beneficiaries. Id. at 131; Ill. S. Ct. R. 308
       (eff. Feb. 1, 1994). The court found that public policy prohibited the wife’s children from
       taking under the will because the wife had since been released from jail and was the guardian
       over her children. Mueller, 275 Ill. App. 3d at 137. Accordingly, there was a danger that the
       wife could partake in the estate’s property through the children. Id. The court noted that the
       case presented “unique facts and circumstances” that required the court to prevent the
       murderer’s children from inheriting. Id. at 138.
¶ 23        We find this case distinguishable from Mueller, in that the murderer would have actually
       controlled the property of the estate because her children were minors. Here, Darota is an adult
       and, although we might speculate, we cannot say with any certainty that Darota’s inheritance
       would be controlled by Chaban. Moreover, unlike the murderer in Mueller, Chaban is still in
       prison. Finally, we agree that the murderer in Mueller should have been prevented from
       controlling her children’s inheritance; however, we find no language in the statute to support
       barring anyone other than the murderer(s) from inheriting. Further, although in Mueller there
       was a real danger that the children’s mother would control their inheritance, we read nothing in
       the statute which would permit the complete avoidance of a testator’s intent regarding the
       named contingent beneficiaries, who were not only innocent of the murder, but whose interest
       had already vested.
¶ 24        The Administrator also points to Prudential Insurance Co. of America v. Athmer as further
       support for the proposition that an innocent beneficiary should be divested of an inheritance if
       the murderer of the decedent might be an indirect beneficiary. 178 F.3d 473 (7th Cir. 1999). In

                                                    -5-
       Prudential, the Seventh Circuit applied Illinois’s interpretation of its Slayer Statute to a case in
       which a wife killed her husband, and the husband’s life insurance policies named the wife’s
       son and her sister as contingent beneficiaries. Id. at 474. Citing our appellate court decisions in
       Mueller and Vallerius, the court found that Illinois law prohibits the relative of a murderer
       from inheriting the murder victim’s property if it would confer an indirect benefit on the
       murderer. Id. at 478. Although the Seventh Circuit questioned the wisdom of such an
       approach, finding no contrary precedent, the court determined that it was bound by Illinois’s
       state court decisions. Id.
¶ 25       In its analysis, the Seventh Circuit noted the Mueller court’s suggestion that the trial court
       make a factual determination as to whether allowing a relative of the murderer to take in the
       place of the murderer is likely to confer a significant benefit on the murderer. Id. The court
       noted that in Mueller, the court thought it important that the murderess had already been
       released from prison, had custody of one of her children, that the marriage had been a sham,
       and that the children had not lived with her husband. Id. The Seventh Circuit ruled that, in its
       case, the wife’s son could be permitted to benefit from the insurance policy, because unlike in
       Mueller, the murderess mother was still in prison and the son was no longer a minor. Id. Thus,
       it was unlikely that the murderess would ever benefit significantly from the proceeds of her
       murdered husband’s insurance policies. Id. at 479.
¶ 26       We first note that decisions by federal courts interpreting Illinois law are not binding and
       are merely persuasive. People v. Criss, 307 Ill. App. 3d 888, 900 (1999). Moreover, the
       Seventh Circuit rested its decision on Vallerius and Mueller, decisions which we find
       distinguishable from the present case. Finally, the Seventh Circuit itself questioned the
       wisdom of determining whether the murderer might be an “indirect beneficiary.” If we were to
       prohibit all instances where the murdering party might eventually receive some indirect benefit
       from the inheritance, we question just how far this concept might reach. For example, if a son
       kills his parents, must we disinherit all of his siblings if they plan to share a portion of the
       inheritance with him? As the Seventh Circuit noted, Slayer Statutes do not require “a kind of
       reverse constructive trust” to ensure that the murderer never receives the property. Athmer, 178
       F.3d at 476. Further, for the court to determine whether the murderer might receive an indirect
       benefit from the innocent beneficiary “requires an inherently speculative judgment about the
       future and an investigation of family relations quite likely to be of Faulknerian opacity.” Id. at
       478.
¶ 27       The Administrator further argues that Darota should be disinherited based on the final
       paragraph of section 2-6 of the Act which states:
                    “If the holder of any property subject to the provisions of this Section knows or has
                reason to know that a potential beneficiary caused the death of a person within the
                scope of this Section, the holder shall fully cooperate with law enforcement authorities
                and judicial officers in connection with any investigation of such death.” 755 ILCS
                5/2-6 (West 2012).
¶ 28       Darota certainly did not cooperate with law enforcement and judicial officers in connection
       with their investigation of her mother’s death. However, we do not find that this section of the
       Act prohibits Darota from inheriting for two reasons. First, although Darota may have had
       reason to know that Chaban caused Irene’s death, the statute explicitly refers to a potential
       beneficiary, and Chaban is not a potential beneficiary. The Act does not give direction
       regarding cooperating with law enforcement authorities when the murderer, who is not a

                                                    -6-
       beneficiary, may receive an indirect benefit. Therefore, although Darota was guilty of criminal
       conduct for her failure to cooperate in the investigation of her mother’s death, she did not
       violate section 2-6 of the Act.
¶ 29       Moreover, section 2-6 of the Act does not provide a consequence for failing to cooperate
       with law enforcement authorities. Even if Chaban had been a beneficiary, there is nothing in
       the statute which would allow Darota to be disinherited for her lack of cooperation. We will
       not presume that the legislature intended for a holder of property who fails to cooperate with
       law enforcement officials to be disinherited. “It is not the province of the courts to inject
       provisions not found in a statute.” Wilson v. F.B. McAfoos & Co., 344 Ill. App. 3d 452, 457
       (2003) (citing Gaskill v. Robert E. Sanders Disposal Hauling, 249 Ill. App. 3d 673, 678
       (1993)). Clearly, had the legislature so intended, it could have specified a prohibition for a
       noncooperating property holder in the same manner as it specified a prohibition for the
       murderer. Apparently, it chose not to do so. Accordingly, we do not find that section 2-6 of the
       Act, as it is currently written, prohibits Darota from obtaining property from Irene’s estate.

¶ 30                                     Equitable Disinheritance
¶ 31       The Administrator also argues that even if we were to find that Darota can inherit under
       section 2-6 of the Act, we should, nonetheless, prohibit Darota from inheriting from her
       mother’s estate due to her “unclean hands,” as evidenced by her false statements to the police
       and the grand jury. Darota argues that no previous Illinois case has found the unclean hands
       doctrine to apply to inheritance and to do so would be “judicial legislating.”
¶ 32       The unclean hands doctrine prohibits a party from seeking equitable relief if the party was
       guilty of fraud, misconduct, or bad faith in connection with the disputed matter. Jackson v.
       Board of Election Commissioners, 2012 IL 111928, ¶ 26 (citing O’Brien v. Cacciatore, 227 Ill.
       App. 3d 836, 846 (1992)). The doctrine is based on the principles that “he who seeks equity
       must do equity,” and that a party should not profit from his own wrongdoing. Gambino v.
       Boulevard Mortgage Corp., 398 Ill. App. 3d 21, 60 (2009). In Jackson, our supreme court
       noted that the unclean hands doctrine was not favored and found that it was not applicable to
       the plaintiff’s challenge of election law, inter alia, because there was no precedent for the
       doctrine to be applied in such a case. 2012 IL 111928, ¶¶ 26-27.
¶ 33       Here, Darota does not seek her inheritance under equitable principles, but seeks to inherit
       her mother’s estate under Illinois’s Probate Act. Moreover, as we have stated, the doctrine is
       not favored in Illinois, and the Administrator fails to cite to any authority applying the unclean
       hands doctrine to inheritance laws. Finally, the doctrine of unclean hands is meant to prevent a
       party from profiting from their own wrongdoing, but Darota stood to inherit her mother’s
       estate regardless of whether she cooperated with the law enforcement and the grand jury. If she
       receives her mother’s estate, it will not be because of her acts of perjury and obstruction of
       justice.
¶ 34       The only case that the Administrator cites in support of his argument is DeHart v. DeHart,
       2013 IL 114137, which the Administrator argues shows that equitable principles are relevant
       to inheritance laws. In DeHart, the plaintiff argued that the decedent equitably adopted him,
       and he should therefore be entitled to a portion of the proceeds from the decedent’s estate. Id.
       ¶ 12. The court recognized the doctrine of equitable adoption in cases where a close familial
       relationship evidences an objective intent to adopt. Id. ¶ 62. However, we do not find that
       DeHart supports the Administrator’s position. We find significant that the court applied

                                                   -7-
       equitable principals to adoption law, which then affected who would inherit the decedent’s
       estate. The court did not, however, apply equitable principals to inheritance laws. Moreover,
       the court’s reliance on equitable principles in DeHart allowed the plaintiff in that case to
       inherit what he otherwise would not have absent the equitable adoption. In our case, the
       Administrator seeks to disinherit a party who otherwise would take under the estate. We find
       no precedent for this type of equitable “relief,” and believe that it is for the legislature to decide
       whether the doctrine should apply in similar scenarios. Therefore, we decline to apply the
       unclean hands doctrine for purposes of disinheriting a party who otherwise would benefit from
       a decedent’s estate.

¶ 35                                        CONCLUSION
¶ 36       For the reasons stated above, we affirm the judgment of the circuit court of Cook County.

¶ 37       Affirmed.




                                                     -8-
