ILLINOIS OFFICIAL REPORTS

Supreme Court

Bjork v. O’Meara, 2013 IL 114044

Caption in Supreme

Court:

COLLEEN BJORK, Appellant, v. FRANK P. O’MEARA, Appellee.

 

Docket No. 114044

Filed

Rehearing denied

January 25, 2013

March 25, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

A tort claim that defendant independent representative of an estate had

intentionallyinterferedwith the testamentaryexpectancyof plaintiff, who

had once been a pay-on-death beneficiary of one of decedent’s bank

accounts, did not challenge the will and should not have been dismissed

as not filed within the time period for will contests.

Decision Under 

Review

Appeal from the Appellate Court for the First District; heard in that court

on appeal from the Circuit Court of Cook County, the Hon. Michael R.

Panter, Judge, presiding.

Judgment Appellate court judgment reversed.

Circuit court order reversed.

Cause remanded.
Counsel on

Appeal

Kurt J. LeVitus, of Chicago, for appellant.

David P. Schippers and Kris Daniel, both of Chicago, for appellee.

Justices JUSTICE FREEMAN delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke,

and Theis concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Colleen Bjork, brought an action in the circuit court of Cook County against

defendant, Frank P. O’Meara, alleging intentional interference with a testamentary

expectancy. The circuit court dismissed plaintiff’s complaint as time-barred under the

limitation period governing will contests. The appellate court affirmed the dismissal. 2012

IL App (1st) 111617. This court allowed plaintiff’s petition for leave to appeal. Ill. S. Ct. R.

315 (eff. Feb. 26, 2010). We now reverse the judgment of the appellate court and the order

of the circuit court, and remand the cause to the circuit court for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 Forseveral years prior to his death, Frank J. Dama was a friend to Bjork and to O’Meara.

He was not related to either by blood or marriage. Bjork worked as a hospice nurse for

Dama’s late wife. O’Meara was Dama’s dentist.

¶ 4 In a May 2005 telephone conversation with Bjork, Dama, who was 90 years old, told

Bjork that he owned two bank accounts. One was his regular checking account containing

approximately $800,000. Dama told Bjork that O’Meara knew the existence of this account,

and that O’Meara “had been asking Dama for more and more money.” The other account,

containing approximately “half a million,” was not used to pay expenses, and O’Meara did

not know this account existed. Dama told Bjork that he wanted her to have this account

“because he did not want O’Meara to get everything.” Dama told Bjork that he wanted to

name her as the pay-on-death beneficiary on this account.

¶ 5 Over the course of several months, Dama’s personal banker, Mary Williams of the

Northern Trust Company (hereafter Northern Trust), twice telephoned Bjork to inform her

that Dama wanted to name Bjork as pay-on-death beneficiary on one of his bank accounts.

In these conversations, Williams obtained information from Bjork, and asked her if she

would sign documents to complete the beneficiary designation process. Bjork agreed.

¶ 6 On October 4, 2005, Williams sent a package to Bjork via FedEx, which contained

documents for Bjork to sign to complete the beneficiary designation process. One of the

documents was Northern Trust’s form entitled “Power of Attorney,” which already had been

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signed by Dama and had been partially completed. The information on the form included the

account number (612375), the social security numbers of Dama and Bjork, and the title of

“Frank J. Dama Trustee for Colleen Mary Bjork Beneficiary.” Bjork signed this form and

returned it to Williams. Thereafter, two deposits were made into Dama’s Northern Trust

bank account number 612375, bringing the balance of that account to $566,695.52.

¶ 7 On October 21, 2005, Dama signed a power of attorney for property that appointed

O’Meara as his agent, and expressly revoked all powers previously granted to Bjork. On

December 13, 2005, Dama executed a will containing a general residuary clause, in which

he left his entire estate to O’Meara and O’Meara’s wife.

¶ 8 From late 2005 through the end of 2008, Bjork and Dama were in contact through letters,

telephone conversations, and in-person visits. In mid-January 2009, Dama telephoned Bjork

to inform her that he had fallen and was not feeling well. Bjork visited Dama in his

apartment, where O’Meara’s secretary was present. Thereafter, Bjork’s telephone calls to

Dama’s apartment went unreturned.

¶ 9 Dama died on February 18, 2009. Shortly after Dama’s death, a representative of

Northern Trust informed Bjork that she was not a beneficiary of any Dama account.

¶ 10 A. Probate Proceeding

¶ 11 O’Meara filed the will with the clerk of the circuit court, and thereafter filed a petition

for probate of will and for letters testamentary. Counsel for Bjork subsequently filed an

appearance on her behalf. The court admitted the will to probate and appointed O’Meara as

the independent representative of Dama’s estate.

¶ 12 Bjork filed two citation petitions pursuant to section 16-2 of the Probate Act of 1975 (755

ILCS 5/16-2 (West 2008)). Bjork filed a petition for a citation to Northern Trust for the

recovery of property. Bjork asserted that she was the rightful owner of the assets in the

Northern Trust account, but that O’Meara considered those funds as belonging to the estate.

¶ 13 Bjork also filed an amended petition for a citation to Northern Trust for discovery of

information. Bjork alleged that when she asked for additional information, a Northern Trust

representative stated that no further information would be provided except by court order.

The circuit court issued a citation to Northern Trust for discovery. In response, Northern

Trust produced documents. Bjork thereafter petitioned for leave to depose Williams in

furtherance of the citation to discover information. Bjork asserted that Williams had

information that was crucial to Bjork’s claim, which was not contained in the documents

produced thus far. Bjork alleged that a deposition of Williams would be the most efficient

and least burdensome means to learn the truth about Dama’s intent regarding the Northern

Trust account.

¶ 14 On October 27, 2009, the circuit court denied Bjork’s petition to depose Williams. Bjork

filed a combined motion to reconsider and motion to clarify the denial of Bjork’s petition to

depose Williams. On November 30, 2009, the circuit court denied Bjork’s motion to

reconsider, and the court explained that it lacked the authority to order the deposition of

Williams.

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¶ 15 On April 2, 2010, O’Meara presented his “Final Report of Independent Representative,”

in which he stated that the “assets of the estate have been distributed to the persons entitled

thereto.” The circuit court entered an order discharging O’Meara and closing the estate.

¶ 16 B. Instant Complaint

¶ 17 In October 2010, Bjork filed a complaint for intentional interference with a testamentary

expectancy. In addition to alleging the above-recited background, Bjork alleged as follows:

Dama had planned to name her as the pay-on-death beneficiary of Northern Trust account

number 612375, and had taken affirmative steps toward fulfilling his intention; O’Meara

intentionally deprecated Bjork’s relationship with Dama and interfered with Dama’s plan by

fraud, undue influence, misrepresentation, or other tortious means; O’Meara benefitted from

his tortious conduct where the proceeds of the account were distributed to him and his wife

pursuant to Dama’s will; and, if not for O’Meara’s wrongdoing, Bjork would have been

named the beneficiary of the account and would have received the account proceeds on

Dama’s death. As damages, plaintiff requested $566,695.52, whichwasthe amount of money

deposited in the account, plus interest, attorney fees, and expenses.

¶ 18 O’Meara filed a combined motion to dismiss pursuant to section 2-619.1 of the Code of

Civil Procedure (735 ILCS 5/2-619.1 (West 2008)) alleging defects under both section 2-

619(a)(5) and section 2-615 (735 ILCS5/2-615, 2-619(a)(5)(West 2008)). The section 2-619

portion of the motion alleged that Bjork’s action was time-barred because she did not bring

it within the six-month limitation period governing will contests. See 755 ILCS 5/8-1 (West

2008). Alternatively, the section 2-615 portion of the motion alleged that Bjork’s complaint

failed to state a cause of action.

¶ 19 The circuit court granted O’Meara’s motion to dismiss in a memorandum order. The

court concluded that Bjork’s action wastime-barred based on the six-month limitation period

of section 8-1 of the Probate Act. The appellate court affirmed. 2012 IL App (1st) 111617.

Bjork appeals to this court.

¶ 20 II. ANALYSIS

¶ 21 O’Meara moved to dismiss Bjork’s complaint pursuant to section 2-619.1 of the Code

of Civil Procedure, which allows a party to file a motion combining a section 2-615 motion

to dismiss with a section 2-619 motion to dismiss. 735 ILCS 5/2-619.1 (West 2008). A

section 2-615 motion to dismiss tests the legal sufficiency of a complaint. A section 2-619

motion to dismiss admits the sufficiency of the complaint, but asserts affirmative matter that

defeats the claim. Patrick Engineering, Inc. v. City of Naperville, 2012 IL113148, ¶ 31; King

v. First Capital Financial Services Corp., 215 Ill. 2d 1, 11-12 (2005). Among such

affirmative matter is that “the action was not commenced within the time limited by law.”

735 ILCS 5/2-619(a)(5) (West 2008). The circuit court granted O’Meara’s motion to dismiss

on this basis. A section 2-619 motion admits as true all well-pleaded facts, as well as all

reasonable inferences that may arise therefrom. Further, when ruling on a section 2-619

motion, a court must interpret all pleadings and supporting documents in favor of the

nonmoving party. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352 (2008). Our

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review of a dismissal under either section 2-615 or section 2-619 is de novo. Patrick

Engineering, 2012 IL 113148, ¶ 31; King, 215 Ill. 2d at 12.

¶ 22 The sole issue presented in the case at bar is the timeliness of Bjork’s tort claim. The

circuit and appellate courts applied the six-month limitation period governing will contests

(see 755 ILCS 5/8-1 (West 2008)), rendering her complaint time-barred.

¶ 23 After the admission of a will to probate, section 8-1 of the Probate Act establishes a sixmonth limitation period to “file a petition *** to contest the validity of the will.” 755 ILCS

5/8-1 (West 2008). The single issue in a will contest is whether the document produced is

the will of the testator. The object of a will contest proceeding is not to secure a personal

judgment against an individual defendant. Rather, a will contest is a quasi in rem proceeding

against the will itself and seeks to set the will aside. In re Estate of Ellis, 236 Ill. 2d 45, 51

(2009) (and cases cited therein). This six-month limitation period is not subject to tolling by

fraudulent concealment or any other fact not expressly provided for by the Probate Act. If a

challenger to a will fails to initiate a will contest proceeding within the six-month statutory

time period, the validity of the will is established for all purposes. Id. at 50; Robinson v. First

State Bank of Monticello, 97 Ill. 2d 174, 182-83 (1983).

¶ 24 A will contest is quite distinct from a tort action for intentional interference with a

testamentary expectancy. One who by fraud, duress, or other tortious means intentionally

prevents another from receiving from a third person an inheritance or gift that she would

otherwise have received is subject to liability to the other for loss of the inheritance or gift.

Ellis, 236 Ill. 2d at 52; see Nemeth v. Banhalmi, 99 Ill. App. 3d 493, 497-99 (1981);

Restatement (Second) of Torts § 774B (1979). This widely recognized cause of action does

not contest the validity of the will. Rather, the tort is a personal action directed at an

individual tortfeasor. A plaintiff must establish the following elements: (1) the existence of

an expectancy; (2) defendant’s intentional interference with the expectancy; (3) conduct that

is tortious in itself, such as fraud, duress, or undue influence; (4) a reasonable certainty that

the expectancywould have been realized but for the interference; and (5) damages. Ellis, 236

Ill. 2d at 52. The remedy for an intentional interference with a testamentary expectancy is not

the setting aside of the will, but a judgment against the individual defendant. Further, where

the defendant has received the benefit of the bequest or legacy, the plaintiff’s remedies

include a simple money judgment to the extent of the benefit tortiously acquired. Id. In the

instant case, it is undisputed that Bjork filed her complaint within the five-year general

statute of limitations for actions to recover the possession of personal property or damages

for its detention or conversion. See 735 ILCS 5/13-205 (West 2008).

¶ 25 The six-month limitation period for will contests established in section 8-1 of the Probate

Act does not expressly limit a tort action for intentional interference with a testamentary

expectancy. Under certain circumstances, however, Illinois courts have prohibited the tort

where a plaintiff forgoes an opportunity to file a tort claim within the six-month limitation

period for a will contest. For example, in Robinson v. First State Bank of Monticello, this

court viewed the plaintiffs’ tort allegations as challenging the validity of the decedent’s will

and codicil. Robinson, 97 Ill. 2d at 182. This court stated:

“In this case, where a will has been admitted to probate and where the plaintiffs have

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engaged an attorney to determine whether they should file a will contest, have

decided not to contest the will, have entered into a settlement agreement for $125,000

(agreeing to release the other parties to the agreement *** from any and all claims

and causes of action arising from any will, codicil or other undertaking by the

parties), and have allowed the statutorily prescribed period in which to contest the

will to expire (thereby establishing the validity of the will), we will not recognize a

tort action for intentional interference with inheritance.

* * *

Given the facts in this case, if we were to allow the plaintiffs to maintain their tort

action, we would be giving them a second bite of the apple and defeating the purpose

of the exclusivity of a will contest under section 8-1.” Id. at 184-85.

With this court’s decision in Robinson, the rule developed that the tort action is not available

“where the remedy of a will contest is available and would provide the injured party with

adequate relief.” In re Estate of Hoover, 160 Ill. App. 3d 964, 966 (1987); see In re Estate

of Knowlson, 204 Ill. App. 3d 454, 457-58 (1990); In re Estate of Roeseler, 287 Ill. App. 3d

1003, 1021 (1997).

¶ 26 In Estate of Ellis, this court distinguished Robinson and allowed the claim of intentional

interference of testamentary expectancy to go forward. In 1964, the decedent executed a will

naming plaintiff, Shriners Hospitals for Children, as a contingent beneficiary. In 1999, she

executed a new will naming another as sole primary beneficiary. When decedent died in

2003, the 1999 will was probated, and the six-month period ran without any will contest

being filed. It was not until 2006 that the plaintiff first became aware of its interest in the

1964 will. Plaintiff filed a complaint containing a will contest and a claim for intentional

interference with a testamentary expectancy. Ellis, 236 Ill. 2d at 48-49.

¶ 27 This court explained: “Our holding in Robinson was limited to not recognizing the tort

action where plaintiffs have an opportunity to contest a probated will but choose not to do

so, and subsequently enter into an agreement to take no further court action.” Id. at 54. We

reasoned that, unlike the plaintiffs in Robinson, the plaintiff in Ellis “did not choose to forgo

an opportunity to contest the probated will. It never had that opportunity.” Id. We also

concluded that our holding did not “extend to a plaintiff who fails to bring a tort claim within

the period for filing a will contest, where the will contest remedy was available.” Id. at 57.

¶ 28 In the case at bar, O’Meara asserts that the controlling distinction between Robinson and

Ellis is the plaintiff’s awareness of the probate proceeding. O’Meara reasons that the will

contest remedy was not available to the plaintiff in Ellis because that plaintiff was unaware

of its interest under the prior will, the execution of the subsequent will, or the probate

proceeding. O’Meara argues that Bjork should be precluded from bringing her tort claim

because she knew of the probate proceeding and actually participated therein.

¶ 29 We disagree. In Robinson, we expressed our concern of giving tort plaintiffs “a second

bite of the apple and defeating the purpose of the exclusivity of a will contest under section

8-1.” Robinson, 97 Ill. 2d at 185. This court refused to allow such plaintiffs to maintain a tort

action that would have the practical effect of invalidating a will that had been validated

through the Probate Act. Id. at 186. These concerns are not found in the case at bar.

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¶ 30 Initially, the availability of probate relief to Bjork was only speculative, based on what

actually occurred during the probate proceeding. Bjork never contested Dama’s will. Rather,

she filed petitions for citation. Section 16-2 of the Probate Act allows third-party claimants

to bring two types ofsummaryand informal citation proceedings, discoveryand adjudication,

concerning the right and title to property in the possession of the estate representative.

Section 16-2 authorizes a circuit court sitting in probate to “hear the evidence offered by any

party,” and to determine the ownership of such property. 755 ILCS 5/16-2 (West 2008); see

1A Michael P. McElroy, Horner Probate Practice and Estates § 24:1 (4th ed. rev. 2002); 7

Ill. Jur. Probate, Estates and Trusts §§ 30:01 through 30:12 (2001). A citation proceeding,

although it is historically neither an action at law nor a bill in equity, possesses the equitable

aspects of a bill for discovery, in which it is necessary to acquire facts of which the party

charged alone could have knowledge. The court may compel the person cited to disclose, on

oath, whether or not he or she has estate property in his or her possession. In re Estate of

Lashmett, 369 Ill. App. 3d 1013, 1017 (2007) (quoting 1A Michael P. McElroy, Horner

Probate Practice and Estates § 24:3, at 390-91 (4th ed. rev. 2002)). In a citation proceeding,

the admission of evidence lies within the discretion of the circuit court, subject to reversal

only for clear abuse of discretion. In re Estate of Weisberg, 62 Ill. App. 3d 578, 586 (1978).

¶ 31 In the case at bar, the circuit court failed to order the deposition of Williams in the

erroneous belief that it lacked the authority to do so. Error is committed when a trial court

refuses to exercise its discretion in the erroneous belief that it has no discretion as to the

question presented. People v. Queen, 56 Ill. 2d 560, 565 (1974); see, e.g., Moffitt v. Illinois

Power Co., 248 Ill. App. 3d 752, 758 (1993); Department of Public Aid ex rel. McNichols

v. McNichols, 243 Ill. App. 3d 119, 123 (1993). Before this court, counsel for O’Meara

expressly concedes, correctly, that the circuit court’s denial of Bjork’s petition to depose

Williams was erroneous. The circuit court’s error reduced the availability of probate relief

to Bjork to mere speculation. Accordingly, Bjork did not have the convenient and summary

citation proceeding as the legislature intended. Since no adequate remedy was available

through the probate proceeding, we conclude that Bjork’s tort action was permissible.

¶ 32 Additionally, unlike the tort claims in Robinson and Ellis, Bjork’s tort claim does not

seek or require an invalidation of Dama’s will. Bjork alleges that she was injured by not

receiving the gift of the money in bank account number 612375, which Dama intended for

Bjork to receive upon Dama’s death, which Dama had actually taken steps toward perfecting

as a gift, and which Dama intended to be a nonprobate asset separate and apart from his will.

Bjork does not contest Dama’s will in any way; she does not make any claim against Dama

or his estate. Bjork does not seek title to the account, or the imposition of a constructive trust

over the account and its proceeds. Rather, Bjork seeks money damages from O’Meara to

compensate her for the damages that she sustained as a proximate result of O’Meara’s

tortious interference with her expectancy.

¶ 33 In sum, Bjork’s tort claim does not implicate the concerns expressed by this court

regarding certainty in property rights created by a probated will, and efficient and timely

estate administration. The probate proceeding did not provide meaningful relief to Bjork.

Also, Bjork’s tort claim does not in any way seek to invalidate Dama’s will.

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¶ 34 III. CONCLUSION

¶ 35 For the foregoing reasons, the judgment of the appellate court and the order of the circuit

court of Cook County are reversed, and the cause is remanded to the circuit court for further

proceedings.

¶ 36 Appellate court judgment reversed.

¶ 37 Circuit court order reversed.

¶ 38 Cause remanded.

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