ESTATE PLANNING, PROBATE & ELDER LAW NEWS
Clients often ask me, "why is probate litigation so expensive?" The main reason is that the law tends to behave like an unruly beast. Some questions posed to me are easy to answer -- if you want to know the requirements for executing a valid Will in Illinois, I can give them to you. But other questions are much more difficult to answer.
Take, for instance, pleading requirements for a Will contest. Most Will contests include allegations of lack of testamentary capacity (the person who signed the Will didn't know what he or she was doing) and undue influence (someone "forced" the person who signed the Will to do it). As you might imagine, there's a lot of proof required to win a Will contest -- that's as it should be. But what about getting in the door, and being allowed to prove your case through discovery, etc.? The first step in a Will contest is the filing of a petition. The second step in almost every Will contest is for the other side to file a motion to dismiss the petition, on the grounds that it "failed to state a claim for which relief can be granted."
There is no magic book to turn to in order to find out whether a petition will survive a motion to dismiss. Instead, attorneys have to look to caselaw:
Lack of Testamentary Capacity
Two very old cases -- American Bible Society v. Price and Anlicker v. Brethorst -- suggest that pleadings for lack of testamentary capacity don't have to be very in-depth. But then there's this curious Estate of Sutera case from the 1st District in 1990. It seems to suggest that conclusory statements are insufficient, but it's hard to tell. On the one hand, a very well-known book on Illinois probate states that Sutera does not apply to the issue of testamentary capacity generally, but applies only in cases where the petition includes allegations of an "insane delusion." At least one subsequent court case implies the same thing. But Sutera never mentions the phrase "insane delusion"!
That being said, my experience in court has been that judges still view American Bible Society and Anlicker as setting forth the law on pleading lack of testamentary capacity. But I suppose it depends in large part on how the attorneys frame their arguments, and the judge's take on the caselaw. It is, however, an attorney's job to make sure he or she understands and can argue for or against any of the cases that may come up at the hearing on this issue. And reading and understanding cases takes a LOT of time.
Undue Influence
Undue influence requires more in-depth pleading, but there appear to be (again, "appear to be," since there's no answer set in stone) two ways to approach it:
1. You need to make a "specific recital of the manner in which the free will of the testator was impaired." OR
2. You need to show that the person you are accusing of undue influence had a fiduciary relationship with the person who signed the Will (aka the Testator), that the Testator depended on the person and reposed trust in the person, and that the person "prepared or procured" the Will.
Of course, no case says the above, and clearly indicates that you have two paths to take in proving undue influence for motion to dismiss purposes. Again, this is something of which the petitioning attorney must convince the judge.
I usually talk about estate planning in terms of two different approaches:
Simple: having a simple Will, where you give away all of your property outright
vs.
More involved: having what's known as a pourover Will and a separate living trust. You give your property away in your living trust -- you leave it to a trustee, who holds it for one or more beneficiaries
But there's also a middle way, which involves having only a Will, but incorporating trusts into that Will. This is known as having a Will with a testamentary trust. What's the drawback to this approach, and why isn't it more popular?
Well, when I talk about the advantages of a living trust, I address 5 of them in particular:
1. Probate avoidance
2. Control
3. Creditor protection for beneficiaries
4. Privacy
5. Estate tax minimization
If you create trusts under your Will rather in a separate document, those trusts can't be funded during your life (since your Will has no effect until death). As a result, you will need a probate. Your beneficiaries also don't get privacy, since the trust information is all located in your Will, which is a public document. But the other three advantages still exist.
I've complained loudly in the past about Oak Park's unconstitutional ban on "for sale" signs. The issue has arisen once again -- here are links to the present controversy:
It's time to rethink For Sale signs, by Ed Messina (3/18/08)
Rethink 'For Sale' signs? Think again, by Dan Lauber (3/25/08)
Galewood integrated without engineering, by Ed Messina (4/1/08)
No, it's not time to go back to For Sale Signs, by Kurt Hedlund (4/8/08)
Galewood used OP techniques to integrate, by Kurt Hedlund (4/8/08)
The most frightening thing to me about the above exchange is the editor's note at the end of Mr. Messina's 4/1/08 piece. It says, "Contrary to conventional wisdom, there is no formal For Sale sign ban in the village. It's a longstanding, voluntary agreement among local Realtors at the request of the village."
I can only assume that this was an April Fool's Day joke. When I check the Oak Park village code (via the village's website), and click through to the Village Code page (here), I see section 13-2-3. That section reads as follows (the emphasis is mine):
13-2-3: REAL ESTATE FOR RENT AND FOR SALE SIGNS PROHIBITED:
The President and Board of Trustees find as follows:
A. That a prohibition of "For Sale" and "Sold" signs has been recommended by the Commission on Community Relations on the basis that said signs tend to encourage unfair housing practices and tend to defeat the purposes of the Village's Human Rights Program.
B. That a prohibition of "For Rent" signs has been recommended by the Commission on Community Relations for the following reasons:
1. "For Rent" signs presently are used more frequently in areas that have a greater percentage of occupancy of minority residents. "For Rent" signs are seldom used in connection with buildings that have no minority occupants. The use of these signs therefore tends to "signal" that minorities may be more welcome in some areas of the Village than others and this tends to segregate areas contrary to the policy of the Village to maintain an integrated community.
2. A proliferation of "For Rent" signs encourages panic peddling and block busting.
3. "For Rent" signs may give an appearance of community instability when concentrated in a limited geographic area.
4. A proliferation of "For Rent" signs may infer that an area is less desirable than other areas.
5. A system of apartment management that refers tenants to the source of rentals will encourage greater professionalism in apartment management.
It shall, therefore, be unlawful for any person to construct, place, maintain or install a "For Sale", "Sold" or "For Rent" sign on any property developed for residential use in the Village. The term "For Sale" sign shall include signs carrying the following or similar words: "Open House" or "Open for Inspection" and shall include any other devices placed on the property to indicate that the property is for sale.
In the case of new construction of residential property or conversion of an existing structure to condominium use where a condominium declaration is recorded, a "For Sale" sign shall be permitted on the property until the property or condominium units are sold, but not to exceed one and a half (1 1/2) years after issuance of a certificate of occupancy for a new building or from the date the "For Sale" sign is posted in the case of a conversion. (1981 Code)
Does that look to you like an informal, voluntary agreement between the village and local realtors?
My letter to the editor was published on April 8 -- here it is (yay! I'm officially a crank!) The Features/Viewpoints editor for The Wednesday Journal, Ken Trainor, tried to respond to my concern about the constitutionality of Oak Park's ban with this editorial, published at the same time. My two problems with Mr. Trainor's editorial are:
1. He admits that, "in 2003, we were told by staff at village hall that there was no official For Sale sign ban. it was simply a voluntary ban observed by local Realtors all these years. Well, they weren't being entirely upfront about that. Turns out the ban is still on the books, only it's not enforced." And yet, in 2008, the viewpoints page of The Wednesday Journal includes an editor's note stating that ""Contrary to conventional wisdom, there is no formal For Sale sign ban in the village. It's a longstanding, voluntary agreement among local Realtors at the request of the village." I don't know which is worse -- that the Village would lie to The Wednesday Journal about the nature of the ban in 2003, or that The Wednesday Journal would perpetuate that lie by repeating it in 2008.
2. Mr. Trainor tries to make the argument that "Oak Park might very well be able to withstand a court challenge" on the ban. I'm not a big fan of the John Yoo school of legal thought, where a clear law that you don't like can be read to say whatever you want it to say. The Supreme Court stated, in 1977, that bans on "For Sale" signs of the type employed in Oak Park are unconstitutional. The reasoning for that ban given by Justice Marshall is pretty clear (the opinion is available here). That Mr. Trainor thinks the ban will be overturned by showing "the documented resegregation of the West Side of Chicago" only shows US that Mr. Trainor either hasn't read or doesn't understand the case. And all the thousands of words put down in The Wednesday Journal about why Oak Park needs the ban, has to have the ban, will be destroyed if the ban is lifted, are just wasted.
Note that I am not commenting on whether Oak Park should be able to do what the Village, Mr. Trainor, and others seem to want it to do -- protect Oak Park from the (in their opinion) danger of low-income black people swarming into the community and destroying it once the "For Sale" sign ban is lifted. Rather, I'm stating that, if Mr. Trainor and the Village want to maintain what they see as an "appropriate" level of diversity in Oak Park, they're going to have to figure out a different way to do it.
