2016 IL App (4th) 150844 NO. 4-15-0844 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT In re ESTATE OF JOHN O. SCHUMANN , Deceased (Hanna Struever and Nathan Struever, Petitioners -Appellants, v. Mary Ann Herron, a/k/a Mary Ann Yoswig, as Exec utrix of the Estate of John O. Schumann, Respondent- Appellee ). ) ) ) ) ) ) ) ) Appeal from Circuit Court of Calhoun County No. 14P8 Honorable John Frank McCartney, Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Appleton and Pope concurred in the judgment and opinion.
O PINION ¶ 1 John O. Schumann (Pete) died in July 2013. In March 2014, Mary Ann Herren (otherwise known as Mary Ann Yoswig)— Pete ’ s caretaker and holder of his power of attorney during the later years of his life—petitioned to probate a will Pete executed in October 2007, which appointed Herren as executr ix and devised Pete ’ s entire estate t o be administered pursuant to a trust agreement

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

— petitioned to contest the 2007 will. The Struevers claimed that Pete lacked the capacity to execute the 2007 will and that Herren exerted und ue influence over Pete in creating it. The Struevers further asserted that Pete ex ecuted a valid will and trust in 2002, which would benefit the Struevers. ¶ 2 Herren moved to dismiss the Struevers’ will contest, arguing that under the s upreme court ’s decision in In re Estate of Schlenker , 209 Ill. 2d 456, 808 N.E.2d 995 (2004), the 

## FILED November 3, 2016 Carla Bender 4 th District Appellate Court, IL- 2 - Struevers lacked standing. The trial court agreed and dismissed the Struevers’ petition. The Struevers appeal , a nd we reverse. ¶ 3 I. BACKGROUND ¶ 4 Pete died in 2013. In March 2014, Herren filed a petition to probate Pete ’ s Oct ober 18, 2007, will, which was attached to Herren ’s petition and which named her as executr ix

. The will explicitly revoked “ all prior wills ” and bequeathed Pete ’ s entire estate to “ the Trustee under the Trust Agreement dated October 18, 2007. ” (The referenced trust agreement was not attached to Herren ’s petition to probate and does not appear anywhere in the record on appeal.) ¶ 5 In December 2014, the Struevers filed an amended petition to contest the 2007

w ill. The amended petition alleged that (1) Pete lacked the testamentary capacity to execute the 2007 will and (2) Herren exerted undue influence over Pete when executing the will. The Struevers alleged further that in October 2002, Pete and Alice executed “mutual” wills and trusts. Attached to the Struevers’ petition to contest were Alice ’s 2002 will and trust agreement and
Pete ’s 2002 trust agreement. The Struevers ’ petition did not explain why Pete’s 2002 will was not attached. The Struevers requested tha t the trial court set aside the 2007 will and distribut e Pete ’ s estate according to his 2002 will. ¶ 6 In January 2015, Herren filed a motion to dismiss the Struevers’ amended pet ition. Herren argued that the Struevers ’ petition failed to meet the pleading requirements of se ction 2-603 of the Code of Civil Procedure (735 ILCS 5/2-603 (West 2014)) and the mailing r equirements of section 8- 1(b) of the Probate Act of 1975 (755 ILCS 5/8-1(b) (West 2014)). In March 2015, Herr en filed a supplement to her motion to dismiss , in which she added an add itional argument: that the Struevers lacked standing to challenge the 2007 will. Citing Schlenker , Herren claimed that the Struevers could not establish standing as legatees to the 20 02 will b e-- 3 - cause the 2007 will explicitly revoked all prior wills , thus voiding the 2002 will and precluding any claim to standing that relied on it

. ¶ 7 In June 2015, the trial court denied Herren’ s motion to dismiss. The court dete rmined that the Struevers had standing as legatees to the 2002 will and as creditors to the 2007 will. ¶ 8 On July 9, 2015, Herren filed a motion to reconsider, reiterating her argument that, pursuant to Schlenker , any pr ior will of Pete ’s was revoked by his 2007 will and could not be relied upon to establish standing. In addition, Herren added an argument that the 2002 will should be presumed to be revoked because it “ has never been produced and its current existence is speculative.” ¶ 9 In August 2015, the trial court conducted a hearing on Herren’s motion to reconsider and , in September 2015, entered an order granting the motion. The court determined that under the supreme court’s holding in Schlenker , Pete ’s 2002 will must be consid ered revoked and void and could not be used to establish standing. The court also accepted Herren ’ s argument that the 2002 will must be presumed to be revoked because the Struevers produced no evidence establishing its existence or validity. Therefore, the cou rt concluded that the Struevers lacked standing to challenge Pete ’ s 2007 will as legatees. In addition, the court determined that the Struevers were not creditors of Pete’ s estate. The court therefore concluded that the Struevers did not have standing as “ interested person[s] ” under the Probate Act and granted Herren ’s motion to dismiss the Struevers ’ amended petition. ¶ 10 This appeal followed. ¶ 11 II. ANALYSIS ¶ 12 The Struevers argue that the trial court erred by dismissing their petition to co n-- 4 - test Pete ’s 2007 will for lack of standing. Specifically, the Struevers argue that they had standin g to challenge Pete ’ s 2007 will because they were legatees to Pete ’s 2002 will. Herren responds by arguing that under Schlenker , the Struevers cannot rely on their status under the 2002 will to e stablish standing because the 2007 will revoked all prior wills, thereby making the 2002 will void. Herren argues further that even if Schlenker does not preclude the Struevers’ standing, the Struevers did not establish standing because the y failed to attach the 2002 will to their petition to contest the 2007 will. ¶ 13 A. Standing in General and the Standard of Review ¶ 14 In Illinois , lack of standing is an affirmative defense that must be plead ed and proved by the defendant. The appropriate vehicle for alleging lack of standing is a motion to dismiss pursuant to s ection 2 -619(a)(9) of the Code of Civil Procedure, which permits involu ntary dismissal when “ the claim asserted *** is barred by other affirmative matter avoiding the legal effect of or de feating the claim. ” 735 ILCS 5/2-619(a)(9) (West 2014). Lack of standing qualifies as an “ affirmative matter ” within the meaning of section 2-619(a)(9). Schlenker , 209 Ill. 2d at 461, 808 N.E.2d at 998. In this case, although Herren did not label her motion as a motion to dismiss under section 2-619(a)(9) (the motion was titled “ motion to dismiss ” and did not cite any section of the Code) , we will consider it as such. Cf. Sandholm v. Kuecker , 2012 IL 111443, ¶ 54, 962 N.E.2d 418 (considering a motion to dismiss asserting immunity as a section 2 -619 motion, despite its label as a section 2 -615 motion). ¶ 15 “ The doctrine of standing ensures that issues are raised only by parties having a real interest in the outcome of the controversy. ” Powell v. Dean Foods Co. , 2012 IL 111714, ¶ 35, 965 N.E.2d 404. “ A party must assert its own legal rights and interests, rather than assert a claim for relief based upon the rights of third parties. ” Id. ¶ 36. “The gravamen of standing is a- 5 - real interest in the outcome of the controversy ***. ” Stevens v. McGuireWoods LLP , 2015 IL 118652, ¶ 23, 43 N.E.3d 923. ¶ 16 The respondent bears the burden to plead and prove lack of standing. Schlenker , 209 Ill. 2d at 461, 808 N.E.2d at 998. Accordingly, a plaintiff need not allege facts esta blishing standing. Id. When standing is challenged in a section 2-619(a)(9) motion to dismiss, a court must accept as true all well

- pleaded facts in the plaintiff ’ s complaint and all inferences that can reasonably be drawn in the plaintiff’ s favor. Id. The court should grant the motion to dismiss only if the plaintiff could prove no set of facts that would support a cause of action. Id. ¶ 17 An order granting a motion to dismiss for lack of standing presents a question of law that we review de novo

. Id. ¶ 18 B. Standing Under the Probate Act ¶ 19 Although standing is generally a “ common law concept ” ( In re N.C. , 2014 IL 116532, ¶ 42, 12 N.E.3d 23), s tanding under the Probate Act is entirely a creature of statute. Schlenker , 209 Ill. 2d at 461, 808 N.E.2d at 998. Pursuant to section 8-1(a) of the Probate Act,

“ any interested person ” may file a petition to contest the validity of a will. 755 ILCS 5/8- 1(a) (West 2014). The Probate Act defines an “interested person” as the following:

“ one who has or represents a finan cial interest, property right or fiduciary status at the time of reference which may be affected by the action, power or proceeding involved, including without limit ation an heir, legatee , creditor, person entitled to a spouse’ s or child ’ s award and the representative.” (Emphases added.) 755 ILCS 5/1 -2.11 (West 2014).- 6 - ¶ 20 C. Case Law Prior to Schlenker Concerning Standing of Legatees ¶ 21 Until recently, Illinois courts were in a greement that a legatee under a previously executed will coul d file a petition to co ntest a subsequent will so long as the legatee had “ ‘ a d irect, pecuniary, existing interest which would have been detrimentally affected by the probate ’ of a subsequent will. ” In re Estate of Malcolm , 234 Ill. App. 3d 962, 964-65, 602 N.E.2d 41, 43 (1992) (quoting Kelley v. First State Bank , 81 Ill. App. 3d 402, 413, 401 N.E.2d 247, 255 (1980)); see also In re Estate of Keener , 167 Ill. App. 3d 270, 521 N.E.2d 232 (1988) ; In re Estate of Watson , 127 Ill. App. 3d 186, 468 N.E.2d 836 (1984); In re Estate of King , 91 Ill. App. 2d 342, 348, 235 N.E.2d 276, 279 (1968) (“petitioners, as devisees and legatees of a prior will of the decedent, were ‘interested persons’ within the meaning ” of the Probate Act) ; Wilson v. Bell , 315 Ill. App. 418, 43 N.E.2d 162 (1942). ¶ 22 Although Keener , 167 Ill. App. 3d 270, 521 N.E.2d 232, agreed with the general rule about a legatee ’s standing described above, it distinguished that rule based on the specific facts of that case. In Keener , the decedent executed several wills and codicils. Id . at 271, 521 N.E.2d at 233. After the decedent ’s death, the petitioner challenged the decedent ’ s final will, which was being probated. Id

. The Keener court concluded that the petitioner lacked standing to bring the challenge because the petiti oner did not have a pecuniary interest in the prior will that immediately prece ded the will being probated. Id . at 274, 521 N.E.2d at 235. ¶ 23 D. Schlenker ’s Interpretation of Standing Under the Probate Act ¶ 24 In Schlenker , 209 Ill. 2d 456, 808 N.E.2d 995, the d ecedent , Levi Schlenker, executed four separate wills before he died

. He was survived by his two children, Troy and Im ogene . Levi ’ s fourth and final will—which granted Imogene nothing— was petitioned to probate, after which Imogene filed a petition contesting its validity. In response, the executor of the will,- 7 - Troy, filed a motion to dismiss the will contest under section 2-619(a)(9) of the Code, argui ng that Imogene lacked standing to challenge the will. ¶ 25 Specifically, Troy argued that even if Imogene successfully challenged the final will, the earlier wills likewise granted her nothing. As a result , Imogene would need to succes sfully challenge all four wills before she could hope to receive any share of the estate, at which point she would take as Levi ’ s heir under the intestacy statutes. Troy contended that , similar to the situation in Keener , because Imogene ’ s petition challenged only the final will, the will co ntest provided her no possibility of obtaining an interest in Levi ’ s estate. That is, even if Im ogene ’ s petition to contest the final will were successful, three prior wills still stood between her and the intestacy statutes. Therefore, Troy argued, Imogene lacked standing because she did not have a real interest in the outcome of the proceedings. The trial court agreed and granted Troy ’s motion to dismiss, but the appellate court reversed. ¶ 26 The supreme cou rt agreed with the appellate court, providing three reasons why the prior wills did not affect Imogene ’s standing to cont est the final will. The “ more fundamental

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

. Id. at 464, 808 N.E.2d at 1000. The court noted that section 1-2.11 of the Probate Act defined an “interested person,” as anyone whose financial interest may be affected by the will contest, “ inclu ding without limitation an heir. ” (Emphasis and internal quotation marks omitted.) Id . at 466, 808 N.E.2d at 1001; 755 ILCS 5/1-2.11 (West 2002). The court interpreted that language to mean that “one’ s status as an heir is sufficient, in itself, to confer standing to contest a will ’ s validity. ” (Internal quotation marks omitted.) Schlenker , 209 Ill. 2d at 466. That is, an heir need not establish in every case a tangible interest in challenging a will. Instead, the Probate Act creates a bright- line rule of law that a decedent ’ s heir always has standing to challenge any will executed- 8 - by the decedent. Therefore, because Imogene had an unconditional right to challenge Levi ’ s will as h is heir, any prior wills executed by Levi were irrelevant to the question of standing. Id. at 465, 808 N.E.2d at 1000. ¶ 27 Although the court’ s holding described above was sufficient to decide the case, the court included two additional reasons why Levi’ s prior wills did not affect Imogene ’ s stan ding. The court ’s second reason for discounting Levi ’ s three prior wills was that “our presumption

mu st be that none of [the prior ] wills have any legal effect.” Id. at 463, 808 N.E.2d at 999. The court explained th at Levi ’ s final will contained a clause revoking all prior wills and that Levi had made no later effort to revive those wills . Thus, the court concluded that “ [a]t this stage of the proceedings , we must therefore regard all of the prior wills as void. ” Id. Presuming that the prior wills were void, the court concluded that those wills could not affect Imogene ’s standing. ¶ 28 The Sc hlenker court then provided a third reason why the prior wills did not affect Imogen e’ s standing: Troy ’ s argument “ assumes that Imogene would be no better off under any of the earlier wills ” than she is under the final will. Id

. The court explained that Levi’s second will had never been produced and that his first will established a trust to provide for Imogene. As a result, Troy h ad not established his claim that Imogene would not take under any of the threeprior wills and would need to successfully contest all four wills before she would receive an interest in Levi ’ s estate. The court explained that Troy was “ attempt[ing] to side step these deficiencies by shifting the burden of pleading and proof to Imogene. ” Id. at 464, 808 N.E.2d at 1000. The court reiterated that Troy, as the respondent, had the burden to plead and prove Imogene ’s lack of standing. The court concluded that Troy had failed to meet that burden and, ther efore, his motion to dismiss should have been denied. ¶ 29 Justice Garman specially concurred, disagreeing with the majority ’s holding that- 9 - the Probate Act grants an heir unconditional standing to challenge a will. Id. at 467-68, 808 N.E.2d at 1001-02 (Garman, C.J., specially concurring). Under Justice Garman ’s interpretation,

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

. Id. at 467, 808 N.E.2d at 1001. According to Justice Garman , an heir who stood to receive the same share of an estate under the decedent ’s will as she would under the intestacy statutes would lack standing to challenge the will. Justice Garman explained that a contrary rule would allow f or mischief : an heir without a legally cognizable interest in the proceedings could file a will contest to affect other partie s’ interests , possibly for personal, nonlegal reasons. Id. at 468, 808 N.E.2d at 1002. ¶ 30 Justice Garman also took issue with the majority ’ s assertion that, because Levi ’ sfinal will revoked all prior wills, the prior wills were void and could not be used to assess Imogene ’s standing. Justice Garman cited Crooker v. McArdle , 332 Ill. 27, 163 N.E. 384 (1928), for the proposition that a will is not effective for any purpose— including revoking other wills

— until the will is admitted to probate. An order admitting a will to probate is not final until the time for fi ling a will contest has run. Therefore, the revocation clause in Levi’ s final will was not yet in effect when Imogene filed her will contest. As a result, the prior wills had not yet become void and should be considered when determining whether Imogene had an interest in challenging the final will. Justice Garman continued by noting that a contrary rule would contradict longstanding Illinois law and promote fraud. Schlenker , 209 Ill. 2d at 468-70, 808 N.E.2d at 1002-03. ¶ 31 E. Standing in This Case ¶ 32 The Struevers argue that the trial court erred by granting Herren ’s motion to di smiss the Struevers ’ petition to contest Pete ’s 2007 will. Specifically, the Struevers argue that they had standing as legatees to Pete ’s 2002 will. In response, Herren argues that Schlenker pr e-- 10 - cludes standing for the Struevers as legatee s to the 2002 will because the 2007 will revoked all prior wills. ¶ 33 1. Schlenker Does Not Proscribe Standing in This Case ¶ 34 Herren argues that Schlenker stands for the proposition that a legatee under a prior will does not have standing to challenge a current will where the current will contains a clause revoking the prior will. We disagree with Herren ’ s reading of Schlenker

. ¶ 35 The “ fundamental ” holding of Schlenker was that under the Probate Act, an heir unconditionally has standing to contest a will. Id

. at 4 64, 808 N.E.2d at 1000. In further support of that holding, the court went on to provide additional discussion unnecessary to its decision. People v. Flatt , 82 Ill. 2d 250, 261, 412 N.E.2d 509, 515 (1980) (the precedential scope of a d ecision is limite d to the facts before the court ). That additional discussion included the following proposition: “A t this stage of the proceedings , we must therefore regard all of the prior wills as void. ” Schlenker , 209 Ill. 2d at 463, 808 N.E.2d at 999. For the following reasons, we conclude that the aforementioned statement from Schlenker does not affect the Struevers ’ standing as leg atees in this case. ¶ 36 The Schlenker court’ s presumption that the prior wills were void was based on the applicable burden o f proof , instead of a broader statement about the power of a probated will to revoke prior wills. As the court explained, “ At this stage of the proceedings , we must therefore regard all of the prior wills as void. ” (Emphasis added.) Id

. The court reached t hat conclusion because , “[a]t this stage of the proceedings, there is no evidence to support [the prior wills’ ] v alidity. ” Id. at 462, 808 N.E.2d at 999. Without any evidence of the prior wills’ validity, the court concluded that its “presumption must be that none of those wills have any legal effect ” because the final will included a clause revoking the prior wills. Id. at 463, 808 N.E.2d at 999. The crit i-- 11 - cal aspect of the court ’ s reasoning was that it was making a presump tion against the respondent, Troy , and in favor of the plaintiff, Imogene. The burden of proof applicable when deciding a se ction 2-619 motion to dismiss required the court to “ accept as true all well

- pleaded facts in plai ntiff ’ s complaint and all inferences that can reasonably be drawn i n plaintiff ’ s favor. ” Id. at 461, 808 N.E.2d at 998. In Schlenker , one inference that could be drawn in Imogene’ s favor was that all the prior wills were void and therefore could not affect her standing. We read Schlenker less as establishing a new rule that all prior revoked wills must be considered void than as reaffirming the well

- established rule that all inferences must be drawn in the plaintiff’ s favor when conside ring a section 2-619 motion to dismiss. ¶ 37 Our reading of Schlenker is buoyed by that court ’ s reasoning immediately follo wing its decision to consider the prior wills as void. The court went on to consider the possibility that those prior wills might instead be valid , in direct contradiction of its previous statement that it was presuming that the prior will s were void. The court considered that the prior wills might grant Imogene an inter est in Levi ’ s estate greater than she would take under the final will, which would create a direct financial interest in Imogene ’ s challenging the final will. The court e xplained that Troy had not met his burden to prove that the prior wills did not grant Imo gene such a direct interest. The court concluded that Troy was attempting “ to sidestep these deficiencies by shifting the burden of pleading and proof to Imogene. ” Id . at 464, 808 N.E.2d at 1000. The court reiterated that it was Troy ’s burden to plead and prove lack of standing. ¶ 38 The common thread tying together the Sc hlenker court’ s reasoning is that Troy , as the respondent, had the burden to plead and prove lack of standing. Accordingly , all inferences were required to be drawn in Imogene ’s favor. Schlenker involved a factual scenario in which contrary inferences could be drawn in Imogene ’ s favor

— first, that the prior wills were void and,- 12 - second, that the prior wills gave Imogene a greater interest than the final will. The court therefore considered both those presumptive possibilities in reaching its decision. Because the Schlenker court’s reasoning was based on the inferences that could be drawn in the plaintiff’ s favor, we decline to extrap olate any broader legal holding about the efficacy of revocation clauses from its analysis. ¶ 39 We also find compelling the long-standing case law prior to Schlenker providing that a legatee under a prior will has standing to contest a subsequent will. See Malcom , 234 Ill. App. 3d 962, 602 N.E.2d 41 ; Watson , 127 Ill. App. 3d at 189, 468 N.E.2d at 837 (“It has been held that legatees of a prior will of a decedent, even though not heirs at law, are ‘ interested ’ pe rsons within the meaning of the [Probate] Act. ”) ; Kelley , 81 Ill. App. 3d 402, 401 N.E.2d 247 ; King , 91 Ill. App. 2d 342, 235 N.E.2d 276. We find it hard to fathom that the majority in Schlenker set out to create a rule that would make such a drastic change to established precedent without acknowledging as much. ¶ 40 We also find it difficult to conclude that the supreme court intended , as a matter of law, to prohibit a legatee under a prior will from challenging a subsequently executed will containing a revocation clause. Prior legatees have the kind of “ real interest in the outcome ” of the controversy that is generally sufficient to establish standing

. Powell , 2012 IL 111714, ¶ 35, 965 N.E.2d 404 (describing the general requirements for standing). Legatees are asserting their “own legal rights and interests” rather than the rights of a third party. Id. ¶ 36. A rule holding that legatees cannot challenge a will containing a revocation clause would prevent potentially inte rested parties from c hallenging suspect wills. ¶ 41 Further, unlike the factual scenarios in Schlenker and Keener , in this case, no intervening wills stood between the challenged 2007 will and the 2002 will, under which the- 13 - Struevers claimed to be beneficiaries. That is, if the Struevers successfully challenge d the 2007 will, no other obstacle prevent ed them from immediately seeking to probate the 2002 will. The Struevers therefore have the “ direct, pecuniary, existing interest ” in their will contest that the p etitioner lacked in Keener , 167 Ill. App. 3d at 271, 521 N.E.2d at 234. ¶ 42 In addition, we agree with the point made in Justice Garman’ s special concu rrence that a will ’ s clause revoking all prior wills does not become effective until the will is su ccessfully probated. In Crooker , 332 Ill. at 29-30, 163 N.E. at 385, the supreme court held that

“ no will is legally effective until it has been admitted to probate. No will can be shown to revoke a previous will until the subsequent will has been admitted to probate. ” As we noted earlier, Schlenker did not explicitly overrule that holding. ¶ 43 The rule stated in Crooker that no part of a will becomes effective until the will is probated makes perfect sense. Certainly, a will ’ s revocation clause could not and should not be effective if the will was the product of undue influence. And we do not know whether the will

was the product of undue influence until the will is successfully admitted to probate. Again, we construe the Schlenker court’ s presumption that the prior wills w ere voided by the revocation clause as a necessary presumption because of the burden of proof and not a holding that prior wills cannot be used to establish standing to challenge a subsequent will containing a revocation clause. ¶ 44 Because the Struevers d o not raise the argument, we have no need to determine whether section 1-2.11 of the Probate Act (755 ILCS 5/1-2.11 (West 2014)) provides standing to legatees as a matter of law, regardless of whether a legatee has an actual pecuniary interest in the

outcome of the will contest. ¶ 45 2. Herren Did Not Meet Her Burden t o Establish Lack of Standing- 14 - ¶ 46 Applying the foregoing principles to this case, we conclude that Herren failed to meet her burden to establish the Struevers’ lack of standing. As explained above, according to facts ple ad ed in the Struevers’ petition to contest the 2007 will, they were legatees with standing to challenge Pete ’s 2002 will. Herren claims that we must presume that the 2002 will is revoked because the Struevers have failed to attach it to th eir petition to contest. However, Herren ’ s a rgument is contrary to the appropriate burden of proof. At this stage of the proceedings, the Struevers d id not have the burden to plead and prove standing. Instead, Herren had the burden to plead and prove the S truevers ’ lack of standing. Herren did not meet that burden. As a result, her motion to dismiss the Struevers’ petition to contest the 2002 will should have been denied. ¶ 47 Because we find that Herren ’s motion to dismiss should have been denied based on the S truevers ’ standing as legatees, we need not address the Struevers’ standing as creditors. ¶ 48 III. CONCLUSION ¶ 49 For the foregoing reasons, we reverse the trial court ’s judgment and remand for further proceedings. ¶ 50 Reversed and remanded

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