marry her shall i want to begin give the court a roadmap as to what i would like to address subject of obviously to the court's direction but i want to begin by noting two of the standards for s judgment that i don't think are controversial propositions of law but which matter to my presentation most one is that this court as the court below when considering summary judgment de novo construes the evidence against the movement which in this case was mary hirschfeld the executor the nd one i think is even more important where it's when the only when the undisputed facts admit above a single inference does the issue become one of law for summary judgment and so in my presentation today i'm going to discuss the ruling on the last the test marry capacity the ruling on the presumption of under the influence the discovery process and the evidence struck time permitting but i do really want to focus on the ruling on the lack of testamentary capacity because frankly runners i believe the case begins and ends there in terms of review and summary judgment respectfully i believe the trial court improperly balanced evidence to conclude the summary judgment was appropriate and what i'd like to do is put forth to the court the two facts that i think were competing in where the trial court went wrong the principal focus for any lack of past any lack of capacity case is whether st whether the deceit and lack the capacity to know the natural objects of his bounty it is not our contention that this case is one where john did or didn't know his family the rd is whether he lacked the ability to dispose of his property with a plan in his own mind that is that is not necessarily what we're dressing here the nd is didn't know the nature and extent of his property and i submit to you from the record he did not want to begin with the st undisputed fact as recognized by the trial court in paragraph thirty six of his opinion which is part of the appendix at seventy six and that is that the property of one thousand four hundred and two waverly was owned jointly by john and mary now we come to the relevant portion of the will in for purposes of lack of capacity on this test this is my fact i'm not relying on any other fact but this  relying only on the will or the evidence that he didn't understand his property here is the provision an issue at the time of executing this will i own a home at fourteen o two waverly drive i submit to you that that is untrue this an attorney of forty years telling this court the court below through his will the property that was properly titled to his wife he owned  by himself the will continues if i own this home on my death i leave my interest in the residence to my wife mary for her life now the trial court understood that maybe there was an error there but the trial court's reasoning was it needn't be error free and it wasn't really error it was just a contingency and this is the position that mary the executor has taken as well but i suggest to the court what contingency could it be if he already owns it with mary the only way he owns the home is if she die because then it is property part of his estate but if she dies she can't get a life a stick the only other contingency evil is if mary quick claim deed the property to john such that he could then give her a life estate in his will and while these are possibilities there is no evidence in the record that john considered these contingencies possible or that they were even remotely in his consideration when the will was drafted so we have two problems with this provision what is the factual error that he owns the property free and clear such that he can  undisputed fact in paragraph thirty six is the deed in the record the deed is not officially in the record because it was not a disputed fact of the time around and you can find that on the appendix pa seventy six where he says this that it is owned jointly between the two of them and so as i say we have two problems one is he doesn't know the nature of his problem property and then i suppose you could say i've always looked at it in preparing for this is that the  nd error was in nature but it may be the plan in his mind that he's trying to bequeath property that he has no legal right to bequeath or if he had the legal right to bequeath it mary produces him he's leaving it to her with a life estate and that makes no she doesn't quit claim deed it to him but she produces him such that he owns the property at that point it makes no sense for him to give her a life estate the only way to avoid that conundrum is if she were to quit claim dee it to him and then this makes sense however there is no evidence in the record that that contingency was ever discussed or considered by john in crafting the will and so i submit to you that while there isn't a while th of this court could conclude it's possible that this works the standard for summary judgment is what do i get as the not move it i get the benefit of the doubt and if there's an inference in my favor that is he didn't understand the ownership then for purposes of summary judgment it's improper that done and i'm not saying that i've been the case because of this what i'm saying is that the jury as fact finder gets to weigh in balance my reading of the will with all of the counter evidence to the executor can muster at trial but that it's improper for the trial court judge to waive away this problem and say that there's a possible explanation without its providing one what that possible explanation is while the trial court uses the words contingency and while mary's counsel uses the words contingency nobody explains what that contingency is and that's what i submit to you are my two factual one doesn't make any sense and the other while it could make sense there is no evidence in the record and so i have a question can there be a mistake in the draft dean or in the plan going forward in that not come to the level of lack of memory capacity is simply a mistake this for instance i don't what type of  tell a practice you know this is not a specialty i was i guess my response to that is twofold your honor i believe you are correct that there's a continuum of mistakes so for example trans days of what numbers on the address would not give rise to lack of capacity describing a piece of property in his will that doesn't exist i think we probably all agree with the fairly strong evidence that he lacked impassi and we're somewhere in the middle where he's describing a piece of property that he does have an ownership interest in but he gets his ownership interest wrong so there's your back conflict is it fair for us to balance that inconsistency with all the consistencies in the couple of different wells and the other bequest i think as soon as you're balancing respectfully your honor that's an issue for the trial court and i don't and again i'm not saying that my evidence as a matter of law would outweigh the executors i'm simply saying that a jury when confronted with all the evidence could decide this there's two facts i want to point out and i sort of glossed over the  eleven is the how the property passes i think is problematic but the other is a statement that i own the home and i don't know that one needs to be an attorney or forty years of real estate to know that if you've got a joint ownership interest you do don't know but it jointly titled with my spouse but and i might even say that in a formal setting like if i was speaking to a bank officers particularly since i made i mean if we're if you can see it is odd then then i don't i just don't think that the summary judgment case i think at that point is an odd enough doesn't rise when i hear the court saying it doesn't rise to the level and i think that's a jury a fundamentally a jury question and again i think it does rise to the level i would argue to the jury that it rises to the level when i will speak frankly do i think i would be shocked if a jury said no we didn't think it rose to the  think that that is when we consider measure it up against the other things that he may have gotten right but as soon as you have to look to other facts to argue this fact away i think you're doing the jury's job which requires the reversal of summary judgment let's say i leave my wife my two thousand and fifteen billing and in fact i traded it in depth before i wrote the will decides a question in fact i will i will tell the court in all of my mock arguments that's precisely the argument i used where what if somebody says i own something that either a i no longer or never own and the notion of what i could hear and i believe the executor to your point about what you would say to the bank officer the executor makes the point in i will poke him nothing suggest that this is meant to be a technical description of the form of ownership of the home and i take that to be true in the setting you were describing where you're telling someone you own your home or you're telling the bank officer your own your home but when you're  i think it i think you are making a statement about whether or not you have the right and the authority to grant interest in this property so that's the st argument as to why he left pat i say to you why you  end up balancing because you have to in my view if you have to argue the way you're doing the role of the jury the nd thing i would like to point to is a statement by the trial court that i don't believe holds up to scrutiny and i know what i think i know what the trial court meant but the trial court said john's ability to list is assets supports the presumption of co honor when you were making the point about sort of colloquial conversations if you're going to praise his ability to list as assets i think you have to praise him if he gets it right and by not getting it right i don't think we can rely on his ability to list as assets what i think the trial court was focusing on was the the the sprocket the personal property schedules on the back but to the earlier questions again you're using a different portion of the will to counterpart counterbalance a a paid what i suspect maybe judge turner's question the aisle it was not a part of the summary judgment record it's a point that was made by mr feast it is a part of the local lower court record itself it was an exhibit to the executors motion to dismiss so it is a part of the lower court record it was not a part of the summary judgment record i still believe this court can look at it and i don't there's i don't believe there's any prejudice in discussing it with the court given john hirschfeld divides up his a state based upon the relative weight of what his children will get from the eyelet as he sees it so he figures out from that number what a fifty one percent forty nine percent split would look like to come up with a number for marriage but when looking at the isl it doesn't work the way john thinks it works the children do not get upon his death the four hundred and seventy thousand dollars or so dollars that he says in his will the money is to it was part of the divorce settlement with his st wife she has st dibs on that money for her life and only at her death does the money pass to or to the children through her power of a point so that's not to say again that it's impossible that the money reaches the children but it doesn't reach them in the way the judge said it would reach them in his will the trust is directed that she has st priority to those funds so now i have two instances of judge john herself getting his property wrong to the court's questions how wrong did he get it i think wrong enough for trial wrong enough that if you have to talk about other things to counterbalance it you're doing what the jury should be doing court and also address now i still are question and the before i get to the question of was there will i also want to emphasize the relevant legal standards so mr gore can mention the three prongs the i supreme court one hundred and fifty five and in that case the court lost that standard by saying where a man has sufficient mental capacity to transact ordinary business and act rationally in the ordinary affairs of life  and you made a mistake admitted legal malpractise one thing that's not the question here the question is solely that of the athletes transact ordinary business act rationally in the ordinary affairs of life and that spoke exactly the same way here by saying i own my home and we get to the question of is it an error in the truck or blow said no it's a contingent mr durkin challenges my accounts and in that context it's not uncommon for one spouse to sell an interest in a property to the other they're intending to keep their property and so it is extremely couple that make just looking at the four corners a little and knowing that that is the possibility there's no evidence that there's any error in fact it would be very reasonable for john to say look you know i buy your half of the house i give you a few one hundred thousand dollars for it  and then i die you're still my widow i want you to be taken care of so in that case if i own my home and my death i give you a life that's a very common state planning procedure to make sure that the deceased out out  the error which i don't want to gloss over because it ties into our larger argument which is the same provisions about the house you know i own a house on waverly drive if i own that house my death i get a life it's mary the same provision from the two thousand here and so if you came up with the scheme before you had any health issues and you just kept the scheme in place in two thousand and six again that's that's evidence that's not an error that's evidence that it was part of what he wanted to do this was a carefully planned out scheme to make sure that if he bought mary's half of the house from her mary would still have a place to live when  and forty seven to two hundred and forty eight that it was a possible outcome that the seven children would receive the four hundred and seventy thousand dollars exactly as john hirschfeld expect and the will in fact houses  had the ordinary capacity to transact this area of life and the st change is going on had another granddaughter born in two thousand and five and between the two wills and he wanted to make sure that she was with her siblings as a successor beneficiary in paragraph four a section two of the will very rational reasonable thing to do that can change in section two paragraph three is a slight change to the list of assets from which mary could select her four hundred and ninety five thousand dollars it was a long list to start with in two thousand and four but he added one thing in two thousand and six which is quote my goal as another asset that she could select from deposition and so he knew what was going on john appreciated all of the dynamics and he made an appropriate change and then the th change is that there are minor changes to the schedule the personal property about who gets what and it's true mary got slightly more to the tune of some old golf balls some patches and decals and one old car worth three thousand five hundred dollars that's additional property that mary got to have sex that she didn't get in to thousands or i would just say mary is really unduly influencing john or coming up with a scheme here in order to benefit herself she didn't do very well she ended up with more golf ball will and the two thousand and four will including the notary all of whom testified that john was competent and able to make a will all find self proving affidavits which are admissible in court on this issue under the recorded recollection exception to the hearsay rule and every single one of them agreed that they would not have signed as john's witness if they didn't think that he was competent one of the witnesses in two thousand and four also remembered having a conversation with them talking to him and  ascertaining that he was confident unable to find the will but the nd category the rd category of evidence is evidence that john's activities again tending to prove that he was able to transact the ordinary affairs of life of diagnosis there's nothing opticians did not submit any medical records so the law is quite clear when one party submit evidence and the other party submit nothing to refute it that the will and she testified that she only ever dealt with john she never talked to mary about it john called her up and told her what he wanted and then she asked and that's that testimony is confirmed by a note of a call that john made to cher reynolds where he outlined exactly the changes that were made in the two thousand and four then you've got again the testimony of the three witnesses in the notary in two thousand and six who said mary with not around me and the well then you've got mary's affidavit that i don't in their briefs they are petitioners argue that none of this matters because john was acting as his own attorney and that he was preparing the well at home mary was also at home and maybe she and that kind of the after show that john dominant was dominated by mary and again this is refuted by all the evidence showing that john was handling his own finances that he was the one who was drafting the wills and that he was the one who was in a position of control when it not have as a lay person and so there's nothing to support the argument that mary dominated john other than again pure speculation and then just to touch on the discovery issues your honor briefly from because i know  reply brief rely almost exclusively on the argument that it was error for the trial court not to set a discovery schedule there's no case as that trial courts have extreme discretion when handling discovery they get eighty days into the case if they thought a case manager conference sort of happened in a discovery federal showed them that one hundred and eighty days then they could have stopped and asked then they didn't they waited until all the way at the end of the argument on summary judgment and they said oh wait a minute we need more discovery shall enter cut off date and in their brief they cited bright i believe an illinois supreme court case that was decided five months before rule to eighteen became the new rule for courts in illinois so the rule is under two hundred and eighteen dollars you're supposed to avoid surprise by setting a schedule that orderly does written discovery orderly does oral fact discovery and says expert discovery cut off dates dispositive motion cutoff dates and trial dates that's the norm in practice that wasn't done but i want to go back to the issue of looking outside the will and on the face of the will you always have to look outside the will it's never from the face of the will you have to link up what the testator's saying in the will to the property that he or she does or doesn't  and respectfully if you've got every single piece of property in the schedule right button but misstated his single largest asset i don't believe that summary judgment would be proper so the question we have before us today harkening back to the questions of my when i was speaking is is this enough and truthfully if you're asking is it enough you're saying there is a potential inference that he didn't understand how we own the property council said repeatedly it's very common it's very common commonalities not in the record respectfully whether that that would be a rebuttal to our argument it's very common for husbands and wives to do this it's very common for quitclaim deed i don't know that i don't know that it is com how often do or how often should an estate planner expect quickly and these between spouses that's a countervailing fact the executor could put into evidence to show that our reading of that provision in property ownership is off base but counsel telling you that it's common that's not in the record and i don't in fact believe it's supported by what is practice i want to talk about shefflin quickly shevlin was after a trial it was a directed verdict but there was a trial in shetland the ordinary business the only town or veiling evidence that the plaintiff had in shevlin was typographical errors and this goes to my continuum point earlier i believe that the devil the shevlin court was correct to say that the misspellings don't outweigh the ordinary business i accept that but i don't believe that's where we are on the continuum in this case we're not talking about misspellings we're talking about misunderstanding the fundamental nature of the homeownership and misunderstanding the eyelift and just quickly it's not his expectation the provision the will says because the children will receive the above proceeds they will receive in truth they want if his st wife survives him they will not get those proceeds they will get some portion of those proceeds but they will not get those proceeds blindly under two thousand and four will we have a burden of sea quench really doing the will we have to do the august two thousand and six will st we then have to do the february two thousand and six well why was there for every two thousand such well i don't know then we have to do the two thousand and four will but saying that he got it wrong a bunch of times isn't evidence that he had capacity in two thousand and six it suggests a much larger problem that went to two thousand and four and just to be clear the speech the testing witnesses the will was not read there's not a single witness that could say he understood the terms of the will they can say he carried on a conversation but not that he understood the terms of the will and what we're saying is that the basis for reversal is that he did not fundamentally understand the terms of the will for those reasons your honor respectfully we asked the reverse to grant summary judgment allow the parties to fully and fairly complete discovery so that there might then be a trial on the merits thank you very much thank you counsel will take this matter in your mind and in recess