## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

Bjork v. O’Meara , 2013 IL 114044

Caption in S upreme Court: COL L EEN B J ORK, Appellant, v. F RANK P. O’MEARA, Appe llee.

Docke t No. 114044

Filed Rehea ringdenied J anuar y 25, 2013
Marc h 25, 2013

Held ( Note : This syl lab us

con st i t ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) A tort claim that defe n d an t i ndepende nt repr esentative of an estate had intentionally in

ter f e re d with the testamentar

y expectancy of plaintiff, who had once been a p ay -on-death benef iciary of one of dece dent’s bank

acc ounts, did not challeng e the will and should not have been dismiss ed as not filed within the time period for will contests.

Dec ision Under Review Appea l from the Appellate Court for the First District; heard in that court

on appea l from the Circuit Court of C ook County
, the Hon. Michae l R. Panter, Judge, pr esiding

.

J udg ment Appellate c ourt judg ment reve rsed. Circuit court orde r re verse d. Cause re manded.Counsel on

Appea l Kurt J. L eVitus, of Chicag o, for a ppellant.

David P. Schippers and K ris Daniel, both of Chica g o, for a ppellee.

J ustices J USTI CE FREEMAN delivere d the judgme nt of the court, with opinion. Chief J ustice Kil bride and J ustices Thomas, Ga rman, Ka rmeier , Bur

ke, and The is concurr ed in the judgment and opinion.

OP INION

¶ 1 Plaintiff, Colleen Bjork, brought an action in t h e circ uit court of Cook County ag ainst defe ndant
, Fr ank P. O’Mea ra, alleg ing intentional interfe renc e with a testamentar y expectancy

. The circ uit court dismiss ed plaintif f’ s co mplaint as time-barr ed under the limit ation period g overning will c ontests. T he appellate court a ffirme d the dismiss al. 2012 I L App (1st) 111617. This court allowed plaintiff’s petition for leave to appea l. I ll. S. Ct. R. 315 (ef f. Fe b. 26, 2010). We now reve rse the judgme nt of the appellate court and the order of the c ircuit court, a

nd rema nd the ca use to the circ uit court for f urther pr ocee dings.

¶ 2 I . BA CKGROUND ¶ 3 For sever al year s prior to his death, Fr ank J

. Dama was a friend to Bjork and to O ’Mea ra. He was not related to either by b l o od or marria g e. Bjork worke d as a hospice nurse for Dama’ s late wife . O’Mea ra w as Dama’s dentist. ¶ 4 In a May 2005 telephone conver sat i o n wi t h Bjork, Dama, who was 90 year s old, told Bjork that he owne d two bank accounts. One was his regular checking acc ount containing approximately $800,000. Dama told Bjork that O’Mea ra knew the exis tence of this acc ount, and that O’Mea

ra “had been asking Dama for more and m o re m oney .” The other account, containing approximately “half a milli on,” was not use d to pay expenses, and O’Mea ra did
not know this acc oun t ex isted. Dama told Bjork that he wanted her to have this acc ount “bec ause he did not want O’Mea ra to g et ever

y thing.” Da m a t o l d Bjork that he wanted to name he r as the pa

y -on-de ath bene ficiar

y on this account. ¶ 5 Ov er t h e co urse of sever al months, Dama’ s persona l banker
, Mary Wil li am s o f t h e Norther n Trust Company

(her eaf ter Nor thern Tr ust), twice telephoned Bjork to inf orm her that Dama wanted to na

me Bjork as pay-on-de ath benef iciary on one of his bank ac counts. In these conver sations, Wil liams obtained information from Bjork, an d as k ed her if she would sign doc uments to complete the be nefic iary designation proce ss. Bjork a gree d. ¶ 6 On October 4, 2005, Wil liams sent a packa ge t o Bj o rk v i a Fe d Ex
, which conta ined documents for Bjork to s i gn t o co mplete the benef iciary designation proce ss. One of the documents was Norther

n Trust’s form entitled “Power of Attorney ,” which alre ady had been

-2-signe d by Dama and had been partially completed. The information on the form included the

acc ount number (612375) , the social security numbers of Dama and Bjork, and the title of “F rank J

. Dama Trustee for C olleen Mary Bjork Be nefic iary .” Bjork signe d this form and
returne d it to Wil liams. There afte r, two deposits wer e mad e i n to Dama’ s Norther n Trust bank ac count number 612375, bringingthe balanc e of tha t acc ount to $566,695.52. ¶ 7 On October 21, 2005, Dama signe d a power of at t o rn ey fo r p ro p erty that appointed O’Meara as his ag ent, and expressly revoke d all power s previously grante d to Bjork. On Dec ember 13, 2005, Dama e x ecute d a will containinga g ener al re siduary clause , in which he lef t his entire estate to O’Mea ra a nd O’Mea

ra’ s wife. ¶ 8 Fr om late 2005 through the end of 2008, Bjork and Dama wer e in contac t through letters, telephone conver sations, and in-person visits. In mid-J anuar y 2009, Dama telephoned Bjork
t o i n fo rm her that he had fallen and was not fee ling well. Bjork visited Dama in his
apar tment, wher e O’Mea

ra’ s secr etar

y was prese nt. There afte r, Bjork’s telephone calls to Dama’ s apar

tment went unre turned. ¶ 9 Dama died on Februar y 18, 2009. Shortly afte r Dama’ s death
, a re p re s en t at i v e o f Norther n Trust informed B

jork that she wa s not a bene ficiar y of any Dama a ccount.

¶ 10 A. Probate Proc eeding ¶ 11 O’Mea

ra f iled the will with the clerk of the circuit court, and there afte r filed a petition for probate of will and for letters testamentar y

. Counsel for Bjork subsequently filed an appea ranc e on her behalf

. The court admitted the will to probate and appointed O’Mea ra as the independe nt repre sentative of D ama’ s estate. ¶ 12 Bjork filed two citation petitions pursuant to section 16-2 of the Probate Act of 1975 (755 I L CS 5/16-2 (West 2008))

. Bj o rk filed a petition for a citation to Norther n Trust for the

rec overy of proper

ty

. Bjork asser

ted that she was th e ri gh t ful owner of the assets in the Norther n Trust acc ount, but that O’Mea ra considere d those funds as belong ing to the estate. ¶ 13 Bjork also filed an amended p et i t i o n for a citation to Norther n Trust for discovery

of information. Bjork alleg ed that when she asked for additional information, a Norther n Trust repr esentative stated t hat no further informatio n wo uld be provided except by court order. The circ uit court issued a citation to Norther n Trust for discovery

. In resp o n s e, No rt hern Trust produce d documents. Bjork there afte r petitioned fo r l eave to depose Wil liams in fu rthera nce of the citation to discover information. Bjork asser ted that Wil liams had information that was cruc ial to Bjork’ s claim, which was not contained in the d o cuments produce d thus far. B

jork alleg ed that a deposition of W illiams would be the most eff icient and least burde nsome means to lea rn the truth about Da

ma’s intent r eg arding the Norther n Trust ac count. ¶ 14 On October 27, 2009, the circ uit court denied Bjork’ s petition to depose Wil liams. Bjork filed a combined motion to rec onsider and motion to clarify the denial of Bjork’ s petition to depose Wil liams. On November 30, 2009, the circ uit court denied Bjork’ s motion to

rec onsider, and the court explained th at i t l ac ked the authority to order the deposition of Wil liams.

-3-¶ 15 On April 2, 2010, O’Mea ra prese nted his “F inal Report of Independe nt Represe ntative,” in which he stated that the “asse ts of the estate have been distributed to the persons entitled there to.” The c ircuit court e ntere d an orde r discharg ing O ’Mea ra a nd closingthe estate

.

¶ 16 B. Instant Complaint ¶ 17 In October 2010, Bjork filed a complaint for intentional interfe renc e with a testamentar y expectancy

. In addition to alleg ing the above- rec ited background, Bjork alleg ed as follows: Da m a had planned to name her as the pay -on-de ath beneficiar y of Northern Trust acc o u n t number 612375, and had taken aff irmative steps toward fulfilling his intention; O’Mea ra intentionally depre cate d Bjork’ s relationship with Dama and interfe red with Dama’ s plan by fra ud, undue influence
, misrepre sentation, or other tortious means; O’Mea ra benef itted from his tortious conduct wher e the proce eds of the acc ount wer e distributed to him and his wife pursuant to Dama’ s will; and, if not for O’Mea ra’ s wrong d o i n g , Bjork would have been named t h e b enef

iciary of the acc ount and would have rec eived the acc ount proce eds on Dama’ s death. As damag es, plaintiff reque sted $566,695.52, wh ic h w a s th e a mou nt o f money deposited in the ac count, plus interest, attorne y fee s, and expenses. ¶ 18 O’Mea

ra filed a combined motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedur e (735 I L CS 5/2-619.1 (West 2 0 0 8 )) al leg ing defe cts under both section 2- 619(a) (5) and section 2-615 (735 IL CS 5 /2

- 615, 2-619(a )(5) (West 2008)). The section 2-619 portion of the motion alleg ed that Bjork’ s action was time-barr ed beca use she did not bring it within the six -month limit ation period g overning will contests. See 755 I L CS 5/8-1 (West 2008). Alterna

tively
, the section 2-615 portion of the motion alleg ed that Bjork’ s complaint failed to state a

cause of ac tion. ¶ 19 T h e circ uit court g rante d O’Mea ra’ s motion to dismiss in a memorandum order. T h e court conclude d that Bjork’ s action w a s ti me

- b arr ed based on the six -month limit ation period of section 8-1 of the Probate Act. The a ppellate c ourt aff

irmed. 2012 I L App (1st) 111617. Bjork a ppeals to this court.

¶ 20 I I . ANALYSI S ¶ 21 O’Mea

ra moved t o dismiss Bjork’ s complaint pursuant to section 2-619.1 of the Code of Civil Procedur e, 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 I L CS 5/2-6 19.1 (West 2008). A section 2-615 motion to di smiss t ests the leg al suffic iency of a c omplaint. A section 2-619 motion to dismiss admits the sufficie ncy of the complaint, but asser ts aff irmative matter that defe ats the claim. Patrick Engineering, Inc. v. City of Naperville
, 2012 I L 113148, ¶ 31; King

v. First C

a p ital Financial Servic es Corp.
, 215 I ll. 2d 1, 11-12 (2005). Among such aff irmative m atter is that “the action was not commenc ed within the t ime limit ed by law.” 735 I L CS 5/2-619(a) (5) (West 2008). The circ uit court grante d O’Mea ra’ s motion to dismiss

on this basis. A section 2-619 motion admits as true all well-plea ded fac ts, as we l l as all

rea sonable infere nces that may arise there from. Fur ther, when ruling on a section 2-619 motion, a court must interpre t all pleadings an d s up porting documents in favor of the nonmoving party

. Porter v. Dec atur Mem orial Hospital
, 227 I ll. 2d 343, 352 (2008). Our

-4-revie w of a dismiss al under either section 2-615 or section 2-619 i s de n o vo

. Patrick

Engineering , 2012 I L113148, ¶ 31; King , 215 I ll. 2d at 12. ¶ 22 The sole issue prese nted in the case at b ar is the timeliness of Bjork’ s tort claim. The circ uit and appellate courts applied the six -month limit ation period g overning will contests (see 755 I L CS 5/ 8-1 (West 2008)), r endering he r complaint time-bar red. ¶ 23 After the admission of a will to probate
, section 8-1 of the Probate Act establishes a six

month limit ation period to “file a petition *** to contest the validity of the will.” 755 I L CS 5/8-1 (West 2008). The single issue in a will contest i s whether t h e d ocument produced is the will of the testator. The object of a will contest proce eding is not to s ec u re a persona l judgme nt ag ainst an individual defe ndant. Rather, a will contest is a quasi in rem proce eding
ag ainst the will itself and seeks to se t the will aside. In re Estate of Ellis , 236 I ll. 2d 45, 51 (2009) (and case s cited there in). This six -month limit ation period is not subject to tolling by fra udulent conce alment or any other fac t not expressly provided for by the Probate Act. I f a challeng er to a will fails to initiate a will contest proce eding 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 Montice llo , 97 I ll. 2d 174, 182-83 (1983). ¶ 24 A wi l l co n t es t i s quite distinct from a tort action for intentional interfe renc e wit h a testamentar

y expectancy

. One who by fra ud, duress, or other tortious means intentionally
preve nts another from rec eiving from a third person an i n h eritance or g ift that she would otherwise have rec eived is subject to liability to the other for loss of the inheritanc e or g ift. Ellis
, 236 I ll. 2d at 52; see N em et h v. B a nhalmi
, 99 I ll. App. 3d 493, 497-99 (1981); Restatement (Second) of Torts § 774B (1979). This widely rec ognized cause of action does
not contest the validity of the wi l l

. Rather, the tort is a persona l action direc ted at an individual tortfea sor. A plaintiff must establish the following elements: (1) the exis tence of

an expectancy ; (2) defe ndant’s intentional interfe renc e with the expectancy ; (3) conduct that is tortious in itself, such as fra ud, duress, or undue influence ; (4) a rea sonable cer tainty that the expectancy would have been rea liz ed but for the interfe renc e; and (5) damag es. Ellis
, 236 I ll. 2d at 52. The reme dy for an intentional interfe renc e with a testamentar y expectancy is not the setting aside of the will, but a judgme nt ag ainst the individual defe ndant. Fur ther, wher e the defe ndant h as re ce i v ed the benef it of the bequest or leg acy , the plaintiff’s reme dies include a simple mone y judgme nt to the extent of the benef it tortiously acquir ed. Id. In the instant case , i t i s undisputed that Bjork filed her complaint within the five-year g ener al
statute of limit ations for a ctions to recove r the possession of persona l pr operty or damag es for its detention or c onversion. See 735 IL CS 5/ 13-205 (West 2008). ¶ 25 The six -month limit ation period for will contests established in section 8-1 of the Probate Act does not expressly limit a tort action for intentional interfe renc e with a testamen tary

ex pecta ncy

. Under cer

tain circ umstances, however
, I llinois courts have prohibi ted t he t o rt wher e a pla intiff forg oes an oppor tunity to f ile a tort claim within the six-month li mitation period for a will contest. For example, in Robinson v. First State Bank of Mo n t i ce l lo
, this
court viewed the plaintiffs’ tort alleg ations as challeng ing the validity of the dece dent’s will and codic il. Robinson , 97 I ll. 2d at 182. This court stated:
“In this case , wher e a will has been admitted to probate and wher e the plaintiffs have

-5-eng ag ed an attorney to d et er m i n e whether they should file a will contest, have decide d not to contest the will, have enter ed into a settlement agree ment for $125,000 (agree ing to rele ase the other parties to the agr eeme nt * * * fr o m any and all claims and cause s of action arising from any wi l l
, codicil or other undertaking by the parties)
, and h av e allowed the statutorily presc ribed period in which to contest the will to expire (thereby establishing the validity of the will), we will not rec ognize a tort action for

intentional interfer ence with inheritance

.

* * * Given the fac ts in this case , if we wer e to allow the plaintiffs to maintain their tort action, we would be g iving them a second bite of the apple and defe ating the purpose of the e x clusivity

of a w ill contest under sec tion 8-1.” Id. at 184-85. Wit h this court’s decision in Robinson
, the rule develope d that the tort action is not available “whe re the reme dy of a will contest is available and wou l d p ro v i d e the injured party with adequate re lief.” In re Estate of Hoover , 160 I ll. App. 3d 964, 966 (1987); see In re Estate ofKnowls on , 204 I ll. App. 3d 454, 457-58 (1990); In re Estate of Roesele r , 287 I ll. App. 3d 1003, 1021 (1997). ¶ 26 In Estate of

Ellis
, this court distinguished Robinson and allowed the claim of intentional interfe renc e of testamentar y expectancy to g o forwa

rd. In 1964, the dece dent executed a will naming plaintiff, Shriners Hospitals for Children, as a c ontinge nt be nefic iary

. In 1999, she executed a new will n am i n g another as sole primary benef iciary

. When dece dent died in 2003, the 1999 will was probate d, and the six -m o n t h p eriod ran without any will contest being filed. It was not until 2006 that the plaintiff first beca me awa re of its in tere st in the 1964 will. Plaintiff filed a complaint containing a will contest and a claim for intentional interfe renc e with a testamentary expectancy

. Ellis , 236 I ll. 2d at 48-49. ¶ 27 This c ourt explained: “ Our holdingin Robinson was limit ed to not rec ognizi ng the tort action where plaintiffs have an opportuni ty to contest a probated will but choose not to do
so, and subsequently enter into a n agree ment to take no further court action.” Id. at 54. We

rea soned that, unlike the plaintiffs in Robinson
, the plaintiff in Ellis “did not choose to forg o

an o p p o rt unity to contest the probate d will. It never had that opportunity .” Id. We also conclude d that our holding did not “extend to a plaintiff who fails to bring a tort claim within the per iod for filing a will c ontest, wher e the will contest remedy was available.” Id. at 57. ¶ 28 In the case at bar, O’Mea ra asser ts that the controlling distinction betwee n Robinson and Ellis is the plaintiff’s awa rene ss of the probate pro ceeding

. O’Mea ra rea sons that the will
contest reme dy was not available to the plaintiff in Ellis beca use that plaintiff was unawa re of its interest under the prior will, the execution of the subsequent will, or t h e probate
proce eding

. O’Mea

ra ar gues that Bjork should be prec luded from bring ing her tort claim beca use she kne w of the pr obate pr ocee ding a nd actua lly

participated there in. ¶ 29 We disagree

. In Robinson
, we expressed our conce rn of g iving tort plaintiffs “a se cond bite of the apple and defe ating the purpose of the exclusivi ty of a will contest under section 8-1.” Robinson
, 97 I ll. 2d at 185. This court ref used to allow such plaintiffs to maintain a tort

ac t i o n that would have the prac tical eff ect of invalidating a will that had been validated through the Probate A ct. Id. at 186. Theseconce rns ar e not found in the c ase at bar.

-6-¶ 30 Initially , the ava ilability of probate re lief to Bjor

k was only speculative, based on what
actua lly occur

red during the probate proce eding

. Bjork never contested Dama’ s will. Rather, she filed petitions for citation. Section 16-2 of the Probate Act allows third-par ty claimants
to bring two ty

pe s o f s u mm a r y a n d in f o r ma l citation proce eding s, discovery and adjudication,

co n ce rn ing the right and title to proper ty in the possession of the estate repr esentati v e. Section 16-2 authorizes a circ uit court sitti ng in probate to “hea r the evidenc e offe red by any party ,” and to deter

mine the owner ship of such proper ty

. 755 I L CS 5/16-2 (West 2008); see 1A M ichae l P. McElroy , Horne r Probate Practice and Estates § 24:1 (4th ed. rev. 2002); 7 I ll. Jur. Probate, Estates and Trusts §§ 30:01 through 30:12 ( 2001). A citation proce eding
, althoug h it is historically neither an action at law nor a bill in equity
, possesses the equitable
aspec ts of a bill for discovery
, in which it is nece ssary to acquir e fac ts of wh i ch t h e party charg ed alone could have knowledg e. The court may compel the person cited to disclose, on oath, whether or not he or she has estate proper ty in his or her po s s es s i o n

. In re Estate of Lashmett
, 369 I ll. App. 3d 1013, 1017 (2007) (quoting 1A M i chae l P. McElroy
, Horne r Probate Practice and Estates § 24:3, at 390-91 (4th ed. rev. 2002)). In a citation proce eding
, the admission of evidenc e lies within the di scre tion of the circuit court, subject to rever sal only for clea

r abuse of discretion. In re Estate of W eisberg
, 62 I ll. App. 3d 578, 586 (1978). ¶ 31 In the case at bar, the circ uit court failed to order the depositio n o f W i l l i am s in the

err oneous belief that it lacke d the authority to do so. Error is committ ed whe n a trial court ref uses t o ex erc ise its discretion in the err oneous belief that it has no discretion as to the question prese nted. People v. Quee n , 56 I ll. 2d 560, 565 (1974); see, e.g. , Moffitt v. Illinois Power Co.
, 248 I ll. App. 3d 752, 758 (1993); Departme nt of Public Aid ex rel. Mc Nichols

v. McN i ch o ls
, 243 I ll. App. 3d 119, 123 (1993). Be fore this court, counsel for O’Mea ra expressl y co n ce des, corr ectly
, that the circ uit court’s denial of Bjork’ s petition to depose Wil liams was er

roneous. The circ uit court’s er ror r educe d the ava ilability of probate relief
to Bjork to mere speculation. Acc ording ly
, Bjork did not have the convenie nt and summary citation proce eding as the leg islature intended. Since no adequate reme dy wa s av ai lable through the probate proc eeding , we c onclude that B jork’s tort ac tion was permissible. ¶ 32 Additionally
, unlike the tort claims in Robinson and Ellis
, Bjork’ s t o rt cl ai m does not

s ee k or require an invalidation of Dama’ s will. Bjork alleg es that she was injur ed b y n o t

rec eivingthe g ift of the money in ba nk acc ount numbe r 612375, which D ama intende d for Bjork to rec eive upon Dama’ s death, which Dama had actua lly taken steps toward perf ecting

as a g ift, and which Dama intended to be a nonprobate asset separ ate and apar t from his will. Bjork does not contest Dama’ s will in any way ; she does not make any claim ag ainst Dama

or his estate. Bjork does not seek title to the acc ount, or the imposit ion of a constructive trust

over the acc ount and its proce eds. Rather, Bjork seeks money damag es from O’Mea ra to compensate h er fo r t he damag es that she sustained as a proxi mate result of O’Mea ra’ s tortious interfer ence with her e x pecta ncy

. ¶ 33 In sum, Bjork’ s tort claim does not im p l i ca t e t h e co n ce rn s ex presse d by this court
reg arding cer

tainty in proper

ty rights cre ated by a probate d will, and eff icient and timely
estate administration. The probate proce eding did not provide meaning ful relief to Bjork. Also, Bjork’ s tort claim does not in any way seek to invalidate Dama’ s will.

-7-¶ 34 I I I . CONCLUSI ON

¶ 35 For the fore g oing rea sons, the judgme nt of the appellate court and the order of the circ uit
court of Cook County are reve rsed, and the cause is rema nded to the circ uit court for further
proce eding s.

¶ 36 Appellate c ourt judg ment reve rsed. ¶ 37 Circuit court orde r re verse d. ¶ 38 Cause re manded.

-8-