next cases gender number twelve case number one one four one three seven james thomas the hart versus wonka the hard  one whether illinois should recognize that will adoption and if so what the parameters of that should be number two whether james or her sufficiently pled his second in a complaint in courts of the only code of civil procedure and finally issues relating to the attorney client privilege and a motion to compel just briefly just like to mention the fact that james the heart was born to virginia boswell in one thousand nine hundred two out of wedlock his natural father was james sr donald the heart of the deceit in this case married virginia when james was two and each year thereafter they celebrated their anniversary but they kept secret the year from family and other people in there in the outside world it wasn't passport that passport identified james staley sr as his birth father not donald to heart which is important also for this court to understand in that if you have a certified record from the register in this case cook county for a birth certificate if there is an adoption under the only parent object as well as a vital records act the birth certificate should be amended to reflect the name of the adoptive parent which was not the case and that is part of the record in this case it's part of the complaint incorporated i reference after he did this he confronted donald about this in the allegations of the complaint with the donna believe he adopted them but at that point in time that was reflected as far as donald being confronted with this person to fix it subsequent donald did execute the will which is the subject of the subpoena and on that date which is december fourth two thousand and six and i will come back to the some a little bit more in the argument which is the critical date he still had love affection and care for james to heart on that and as part of that will of course the will had an attachment at the station or a witness signature that said that at the time he executed the will the witnesses stated that he was on noah that he was of sound mind and no one to influence subsequent to this eventually donal passed away and this is the heart had the will admitted to probate and james had five games subsequently filed his will contest action which we're here for today seeking to claim has substantial portion of donald the state after the initial will contest  filed eventually what happened is there is an amendment to the complaint which led to the second man a complaint were probably recognizing the fact that if he is successful in setting aside the will under and test to see law he would need to establish a contracted out or neck will adoption theory in order to take under the under the law now equable dop sion and contracted out has been previously recognized by the state for over one hundred years is an equable rmy to an unfulfilled contract to adopt it does not confer actual adopted status on the child it allows the child to inherit through the loss of a test to see be claimed an heir of the deceit in as an act will remedy it seeking to fulfill a contract so the requirement in illinois  contract is up part of this case as was every other state is referenced in our brief to the l r that both myself and the counsel for james referenced is that you have to have a contract is actually seeking to fulfill a contract now the majority in the appellate court decision said that was reasonable to infer that there was a contract to adopt according to the wall cloud facts of the second minute complaint however they do not identify what those facts are instead they refer to the case of mana hav monahan a decision of this court from a while back where it said you can have circumstantial evidence of a contract to adopt the problem is monahan is distinguishable from this case for two reasons both procedurally and factually in monaghan there's actually no allegation o contract to adopt it was decided on evidentiary basis and the evidentiary basis monahan it was looked at was that the natural mother had basically signed or agreed to sign away her rights to her child and she actually gave up custody both of which are missing in this case rather this case is much more similar to the case of in various state of staley and in that case which was a two six fifteen case just like this one we have very similar facts and that case you had a natural mother remarried later in life the husband she remarried held the child out as there is throughout their entire life in fact and still if he actually had the father according to the allegations the complaint acknowledged in writing that he was the parent of this each of the elements you have to you have to plead facts to support and offer acceptance and consideration and if you look at the second in the complaint in this case you'll notice that there is absolutely no fact pled regarding virginia boswell the mother james to heart there's no fact lead that she was agreeing to give up james to heart there is no fact pled that she actually that there's any cost to that was changed and i'm not talking to sara lee that i'm like ever the case in the state where we've had a contract to adopt and you had the natural mother out of picture is not even allegations of any kind of giving up intention to give up any of her legal rights to show any kind of consideration those are completely missing now apart from these legal deficiencies here the other issue is what is the public policy going forward based on the complaint facts and second a complaint there's no allegation of a contract what would be sufficient enough a birthday card a letter calling someone their son someone acting nice and considerate to someone  what would be considered will be enough for that and how long we're going to have someone that's holding one out for a day a year a life do we know the circumstances of that more importantly what if they ever get divorced every case in this state before this case and including this who raise this theory of this court recognizes it and then the parents divorce does that mean that that person now has to go ahead and either execute a will to say that i specifically disclaim this person or they can have just one of the rest of their life that even though they never formally adopted someone that this person could be an heir of their state then also another public policy concern for this court is in illinois there are probably a substantial amount of wills i know we've heard to millions of wills in our brief but how many wills in the state of we're going to take the intense of those testator's and now deal with whether or not they considered a concept that didn't exist till this case came about and that could have a substantial effect on wills trust and state plans throughout the state that's a concern as well now i understand i believe adoption serves a very important purpose in society i believe the statutory protections of illinois are sort of very good purpose for and i think that when people go through adoption they have a good placement a good child they're ending up with it works out well now adoption officer acquires the current the natural parents the docking parents to agree which we're missing any allegation agreement here but also requires a court's evaluation of the best interest of the child and i understand i'm dealing with an equity remedy for  question is now are we going to have a situation where people are going to work outside the bounds of the adoption statute for either good or bad purposes and we're avoiding the problems we're committing the problems here with the best interest of the child so for those reasons in the fact that there is no case in the state that i am aware there's no case in state part of this one where you've actually had a contract adopt recognize for the natural mother did not give up the cost of the child consideration i respectfully request this court to reverse that decision of the appellate court and find that they were now obviously to have a lack of testamentary capacity you have to show that the person does not have the capacity to know the natural object of their bounty a kind of character their property and that they dispose of it in some planned form in their mind now the reason for that obviously is you want to make sure the person has sounds to their mind when they're executing this very important document dealing with their property and typical cases that come before the courts of the state before involve people with dementia maybe alcoholism problems or other situations and usenet demonstrate that the person did not have the capacity at the time they executed the well in this case there are none of those allegations and in fact if you look at exhibit a to the second amended complaint which is the will it incorporates by reference the witnesses who said that according to their personal knowledge the extent they could tell he appeared to be of sound mind now if we accepted your point me witnesses could there ever be a will contest for lack of  haven't refuted it i understand they have to attach the complaint they will to contest it but there's no allegations in the complaint saying that you know whatever for our greasing these witnesses here did not you know nobody it's up to six fifteen motion right that's been brought in we do h chanson the complaint that we have to take is true that there was on some sort of well it's and i understand as i said i can see where there would be proof to the contrary by offering the complaint to the will itself i would think that the person making that complaint would need to contest that portion that speaks negatively to what they're seeking so they would have to make some allegation that notwithstanding this or come  few that will come up with another positive allegation of someone else say they would know that says you know this person had either dementia all timers alcohols you know something that could kind of work in that to kind of contest that i think that would be something to be necessary time he executed the will the paragraph fourteen right before that allegation says that on that very same day as i mentioned before december fourth two thousand and six he had a loving caring and affectionate relationship donal did with james and  get an internal conflict as well that complaint which is deficient as a matter of law as well and i understand that under two six fifteen years or you resolve the inferences in favor of the person making the complaint the one they have an internal conflict that's a problem as well so from the purposes that i think that complaint is insufficient as a matter of walkers if you look at fourteen with fifteen now is directly contradicting himself in the pleadings he may now apart from and so for that reason person b going to head and actually being influenced and what's required for that is you have to have a specific recital of the manner in which the person's free will is overcome in this case the only allegation is and paragraph twenty two of the s complaint with a general allegation that succumbing to this is to heart's influence he executed a well stating he had no children now there's no allegation as to whether that was caused by some case because this case again is a two six fifteen and hoover the court found there circumstantial evidence to show the influence impacted the the testator's the problem isn't hoover you had a couple things we don't have here because there's evidence you're not pleading you have an issue of  a diary that was produced discovered who are the diary showed that the person who drafted who executed the will internalize and comment some family comments namely the family comments that i one of his children and his ex wife had made to him moral character and it influenced him there's actually evidence in that now i understand that was evidence but again here in this case we're talking allegations we don't have that allegation rather this case is much more similar to the case of in re status to tear her tears to six fifteen tara you have a situation where there was an allegation and the allegation was basically that the person who was eventually the decision was a was a homosexual and that he was afraid that he was going to be placed in a home these people told you placed in a home nursing home and expose him and he was concerned about himself not a problem is there again there is a general allegation his influence was overcome but no allegation of the specific manner in recital and on the appellate decision in that specific case they noted that in the brief that talked about how we connected the dots from the influence to the actual will but that was implied in the complaint which is the same situation we have here we have a conclusion the allegation we do not have that connection of the dots and furthermore even if the court wants to go beyond that and start to pick out of other facts in the case again we know at the time that donald the heart executed his will the paragraph or said that he was under that he had a loving and caring relationship the same date december fourth two thousand and six he had a loving and caring relationship with james if this is to heart as alleged this is just allegations was trying to influence and destroy that relationship then how come on the same day he executed well he had a loving and caring relationship and with respect to the issues about being a son and adopted o'donnell clearly knew that he was not james his natural father in in two thousand he was confronted with a birth certificate that showed he wasn't as natural father but then that conversation going to establish the heart caused donald to sign as well while the three statements in that count not going back to all of them where the james was dead or two related to the adoption now james is dead cannot be accurate because paragraph fourteen incorporates that had a loving and affectionate relationship on the day executed the will so that's saying that's directly conflict and secondly you have the issue of adoption and we do know that same thing with respect that bush to fix this incorporated by reference which we can take notice of the fact that he was not adopted so those are false statements if he was not of that if he was not adopted and he was not dead then how could he how could misrepresentation to actually influence but more importantly is there's no allegation that somehow he had a moral conviction against leaving property to someone who is not legally a son there's just no tie up and that the same with the interference count as well there's no it's high up there of but for a certain action that donald done something differently donald executed a will according to the allegations because bloch wanted executed but the fact he executed a will does not mean that he did not intend to doesn't affect whether he intended to provide for james or not he could of finally very briefly on the motion to compel issues from the client privilege does survive the death of the client however there's an exception for people claiming through the air claiming it is like the heirs legatees that's the wilkinson the service case however that's only in favor of those claiming through the deceit and at the trial court this is under an abuse of discretion standard the trial court the record was presented with a motion to compel to ask for privileged information but if i recall correctly there is no evidence presented to the trial court to james to heart that within the limited exception for which in turn a client privilege should be waived i see that my time is up birth certificate which jim de hart used his entire life until he went to the passport office and that is a birth certificate that got him into school got a driver's license and gotten married is there at exhibit b a forty six  that birth certificate has his name on it he used it for all of those other government purposes couldn't use it for his passport and that's when he went down the street and on march ninth two thousand received from the state of illinois or from the county this word certificate exhibit c want to point out a few things about this these two birth certificates that sort of support or i think things are here first of all exhibit b at th it came from the office of vital statistics in cook county down the street from the passport office now donald hart told jim that he went to a home warrior which is where one would go if you lived on the southeast side of the county to have this adoption taken care of and his words it was all legal those are the words of frankly many would use but particularly a farmer he wouldn't get into details he would say it's all we go this  certificates exhibit b in many respects does reflect evidence of what was known at that point who changed it is an issue that is not  clear but frankly it is a birth certificate that jim de hart used most glaringly if you look closely at the birth certificate and the right justification of it you'll see the mother is listed as we're ginia  boswell the heart of course she wasn't a heart when jim was born her name was not to heart but look very closely at the heart if runs over what should be the right justification of this document somebody prepared this document i don't know if it was the homewood lawyer i don't know if it was the right destroyed deeds i don't know if they work together i don't know who was were ginia and donald together but this was given to james and he used it for fifty six years of his life and intended on using it all of his life until this came to be and so in my view the facts of this case are far more compelling than monaghan which talks about a contract that frankly i think most courts would consider abhorrently if you actually try to enforce it kids are not property you can't contract rights back and forth with respect to kids i mean enforcing that written contract and any other context outside of probate which is what we're dealing with here is an impossibility and i don't know you might get disbarred for trying frankly or creating a contract to have one parent give up for some sum of money to someone else what really here we're talking about is equitable remedies the third district had i think the guts to say it's an equitable adoption other states have used that phrase back in one nine hundred fifty eight is courts used the phrase contract for adoption and applied other equitable principles home and before i get too far there are other aspects of this these two birth certificates that are similar but don't quite line up there's handwriting on some endings typing of the same facts on the other so and the typing by the way is the one that my client had exhibit b for his whole life and so there was a concerted effort to create that birth certificate so i think equitable principles and want has been called an equitable doctrine really  issue here and when we look at the maximus of equity the first equity regards has done what ought to be done and i don't know what's wrong with that here donald the heart held him out for ever as his son the one piece of paper in the entire world is this will that we have here where he says i don't have any children but if you look at donald to heart when he was preparing his obituary at the funeral home what did he say he said i have a son james to heart i have grandchildren james's children i have grandchildren james's i have great grandchildren james's grandchildren i've played bass in there so what equity were guards to be done  intent to fulfill an obligation donald to heart made clear through his words through his actions that he intended to be the adopted father of james he thought he was the adoptive father it was only when confronted with this new birth certificate that the county gave my client that he didn't know that the adoption hadn't occurred so was he supposed to at that point in the year two thousand when his son was fifty six fifty seven years old started an adoption proceeding there didn't seem to be any need for that and i don't think anyone can be blamed for not going in that regard  fifteen but actually the parties did take the deposition of the raja straw the assistant registrar of births in harvey and we try to ascertain just that and i don't know that that deposition  part of the record but essentially she told us that there should be in springfield this original changed birth certificate i'm sorry that the one that was originally issued by engels wore a hospital in there and harvey would be taken out of the file and sent to springfield and someone of all down here there was supposed to be there should be that now i've talked to the lady and she so i have a court order isn't coming up with anything but that's obviously outside of on the record but i think that that question goes to what i'm trying to demonstrate here that you know in footnote one which house and takes issue i speculate that there was a gentleman's agreement that's my basis for right there is that should not be bleeding over like it is the typing on exhibit b which my client had for his whole life when you actually get the birth certificate from the vital statistics his hand written now who did all that whether it's the homewood lawyer whether it's the right to straw i don't know but the point is what did donald think and what are we to do with this situation given not donald has in every aspect  there may be a contract between donald heart and virginia heart in terms of consideration about keeping this a secret because regina was sixteen years old when  so when donald comes into the picture jim is a year or two old and there is an agreement a bench are we about their marriage that we're going to keep this a secret for the good of the family for the good of kid th the contract is somehow involves my client my client help himself alt's well frankly to this day as donald hart's son he work on his farm that's not very easy work for his whole life  you know and so is there consideration running between donald in james certainly can you have a contract if you have consideration for a contract that jim didn't actually even know existed that's why i suggest to you that the contract for adoption simply one should look behind it and what really is going on there is a stopping equitably from the other side from saying there isn't some relationship here or some contract and i think both sides point to says that you know that whether you call it a contract for adoption or whether you're looking behind this contract for equitable principles that's what's going on and if monaghan isn't forcible on those terms the heart certainly should be because the monaghan case there's a couple years where this mother has are this woman has taken in another child for eight dollars a week she's going to watch her and then gives her up in some you know ledger is noted and adoption is attempted what a lawyer again whether he's mistaken or what the deal is but that warrior is asked about an adoption he says we have to find the father he apparently didn't know that could discontinue the father's rights through proper notice or through i would think publication here another lawyer makes those you make a mistake i don't know but there's a homewood lawyer involved and i'll never find macdonald it quite clearly says and acts like that that is the case throughout his life no paragraph fourteen as been mentioned several times here paragraph would cain is in the un do influence columns and i've played in the alternative in capacity and undue influence on indeed donald did love james and provide for him you can see just a year a couple years before he died the whole extended family for generations go on vacation together and donald picks up the tab he sold his hundred sixty acre farm a new one next probably and spent a lot of money as a farmer and so now he's being generous to the only son he knows undue influence talent you know i'm entitled to plead in the alternative and i plead lots of facts about undue influence including the fact that donald did love and care for rod jim and i don't retreat from those statements and i think that it will only last certainly allows me to plead and the alternative on these two own theories now donal's counsel suggests that the settled expectation of testator's and there's millions or thousands or hundreds of wills out there frankly these are some pretty unique facts and i'm not asking this court to extrapolate largely  with this and how that would affect wills that around there i don't know that facts like this could occur again and frankly at a minimum i mean think about whether donald had died first everything is going through virginia to jim his mother they were virginia and donald were married for decades passed away a few years before donald did to me frankly that speaks to equity but it also speaks to this settled expectation attorney client privilege and whether or not attorney peters can speak i'm going to happen here the facts scream out that we want to know donald's intention we want to know donald's will we want you know in this case to know what donald wanted and we want to know whether blanca was in that meeting and exerting undue influence over him who is in the best position to tell us that the drafter of this well who met with donald and frankly probably with wonka is well and that's what i have a wedge because blanca had all but taken over donald's affairs in dealing with the developer it's not entirely clear that was  hundred sixty acre farm here donald home the enough gentleman farmer at that point kept five acres with his farm house bought a house in town in frankfort but there was still dealings going on with hearts construction over this large project block it came right in on it took over took over dealings that he had with an attorney i've actually noted within my complaint the attorney who drafted a prior will and if this court wants to rule narrowly it may do so i've pled that there was a prior will i've pled the drafter his name is cruz park he died i talked to his wife the files were you know not a wound but who had that will it was in the farmhouse where my client was not allowed to go any longer and want to had complete control over so if you don't want to talk about equitable adoption and the inferences that go on with that ending i have standing jim dart has standing here based on the allegation of that prior will or won't in my view and so if we don't want to reach the big equitable issues in the contract issues that's what this case was dismissed on a standing two six one five saying my client's a stranger to this matter my client's not a stranger there was a prior will that provided for him provided for donald the hearts church and others and i believe that i'll have testimony to that effect i know that i'll have a testimony to that effect and i've played it so there are no or ways to get at this if the court wants to because standing is really why i'm here and that's what i lost on so i don't have anything further court working backwards this very briefly here on the motion to compel issues now counsel did not address the abuse of discretion standard mind you the motion to compel me to turn a client privilege to dealing with your dealing with the decision of the trial court regarding discovery and the review of this court is an abuse of discretion that the trial court abuse its discretion and not revealing privileged information under the attorney client privilege to james to heart and the record the issue of whether or not the trial court abused its discretion that the trial court and not having the information the record before it as far as this court has as well to determine whether or not this limited exception applies is it in the piece of discretion of the not basically waive the attorney client privilege to someone is not established they're entitled to that waiver i don't think it is now apart from that council side of the ale are the baits alar we both cited and it's a good l r because it's a survey of all of the state all the councils talk about equity well in this case your equity is to fulfill the intentions of parties to a contract and you've got to plead the required elements for a contract in the state to have a contract to adopt and i understand that in this case there's actually no allegations of anything with respect to virginia if donald unilaterally on his own goes ahead in the side he's going to say i want to make this person my son does that mean virginia now all of a sudden because donald hired a home and lawyer and thought it was all legal does that mean that virginia now has essentially without any involvement of course the law or the statute sending region has given up her rights to her kids that she can't walk out with them no there are no allegations of that an agreement to adopt there's no allegations of the courts involvement the hiring of a lawyer and he thought as a handshake agreement with the registrar the counsel's talking about now as part of the argument i had that i think that's improper because it's not in the record well that would mean that people can go ahead adopt somebody by just talking to an administrative official or a clerk that's not appropriate that frustrates the whole intent of the adoption statute which is to go ahead and have the parents of all the natural ones giving notice of the one who might not be in the picture the ones for adopting and making sure the best first of all the record on the people respectfully your honor there's nothing to indicate that he fits within the fit in the requirements but secondly i think that if you want to go a step further and say well if there is something that we have i still think james byrd has to prove that he fits within one of those exceptions i think he needs to show something to the court we need to have something significant for it with respect to consideration counsel talked about a secret they kept the marriage secret he doesn't allege that that was the consideration for the contract and back in the time that we're talking most councils addressed church children with all due respect when out of wedlock it's not viewed as accepted by society or understood as it is today the reason why is probably secret in why they didn't talk about the actual date that they married and they talked about the whole secret about their date of your their marriages because they didn't want to want donald as a gentleman he didn't want to go and have the outside world knowing that james was born out of wedlock or that virginia had a child out of wedlock but there's no allegation and finally i just want to reiterate the fact i think it's very important for this court to rely on the precedent it's had for probably almost over one hundred years of contract to adopt when they've had a contract adopt you require the agreement people for light on that people their wills to the extent that i'm assuming a lot of the state planning turns don't even know the contract adopt exists but most likely when someone sits down with their estate planning attorney and they draft their will they ask you that the two questions you have any children without any children they probably intentions are carried out because if we know that when you look at a will a lot of times you have the category it says i leave to my children purse turkeys or my children well usually that's drafted by wars you know some people draft their own the law time to hire a lawyer to do it was their understanding of what a child is and we really need to get the intent of the test later on these things and if we allow this to exist now and also allow going forward to affect wills that have already been drafted and people maybe already died in this state now we're creating a whole bunch of chaos  respect to those a mystery in the world because not smoking come in and say i live with this person their whole life he's no longer alive he can't contest anything i say and i was held out as a son i'm his son i don't have any record of it i don't have an adoption which a third party like the courts would be able to get from the registrar of the i don't have the natural proof and i you know i'm just going to say i'm a son well the problem with as a person is dead they're no longer around unfortunately and they can't speak for themselves and this just is going to open up a pandora's box of people who want to come in understand counsel says this is a very unique set of circumstances if this court allows freckled option especially under the facts alleged in this complaint we can see a lot more of these cases coming through the court system in illinois in the future where people are saying i was hold out as a son i'm his son you know he helped me out he called me sonny boy all these other from kinds of things that that's going to come a recurring problem i don't think this court really should invite in a lesson one has any other questions i guess  i'm done now thank you thank you very much mr sherman mr parris we thank you for your arguments this morning case number one one four one three seven james thomas hardy versus block of the hardest taken under advisement as a john as agenda number twelve mr marshall the only supreme court stands adjourned until thursday january twenty fourth two thousand and thirteen n