Opinion
4-22-0824
05-09-2023
DEBRA HAWPETOSS, Plaintiff-Appellant, v. SHANE LARSON, Individually and as Executor of the Estate of Darlene Anderson, Deceased, Defendant-Appellee.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Sangamon County No. 20L210 Honorable Raylene Grischow, Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Presiding Justice DeArmond and Justice Steigmann concurred in the judgment.
ORDER
KNECHT, JUSTICE
¶ 1 Held: (1) No fiduciary duty existed between a successor co-trustee and a beneficiary when a testamentary trust failed due to the insolvency of the decedent's estate; summary judgment in defendant's favor was appropriate on this claim and on the constructive-trust claim that turned on the existence of a fiduciary duty.
(2) A triable question of fact exists for plaintiff's claim of tortious interference with a testamentary expectancy; summary judgment in defendant's favor on this claim and on the correlating constructive-trust claim was improper.
(3) Plaintiff forfeited her claim of error for spoliation of evidence by not complying with the briefing requirements of Illinois Supreme Court Rule 341(h)(7) (eff Oct. 1, 2020).
(4) The trial court did not err in quashing subpoenas seeking financial records related to the breach-of-fiduciary-duty claim.
¶ 2 This case centers on a dispute between sisters, one of whom is deceased, over the estates and testamentary devices of their deceased parents, Dwight and Helen Anderson. It also involves claims against a family friend, Shane Larson, individually and as the deceased sister's executor. In September 2020, the trial court granted summary judgment in Larson's favor on the counts related to the claims against Larson in his role as executor, denied plaintiff's motion for summary judgment on the same counts, and found no just reason to delay the appeal of those final orders under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).
¶ 3 On appeal, plaintiff asserts the summary judgment order was improper. Plaintiff contends (1) the trial court erred in finding the trust created by their mother was not funded and, therefore, did not exist, (2) a triable issue of fact precludes summary judgment on her tortious-interference-with-a-testamentary-expectancy claim, (3) Darlene Anderson, destroyed evidence related to their mother's estate, and (4) the court erred by quashing subpoenas related to Darlene's financial status. We affirm in part and reverse in part.
¶ 4 I. BACKGROUND
¶ 5 Helen and Dwight were married for over 45 years. During their marriage, they had three daughters, plaintiff, Lynda Anderson, and Darlene Anderson. Lynda was a disabled adult who resided with her parents. Helen died in December 2003. Dwight died in January 2020. Plaintiff filed her initial complaint in October 2020. Lynda died on November 4, 2020. Four days later, Darlene died. Defendant, Shane Larson, a close friend and neighbor of Dwight, financially benefited from that relationship. Larson is the appointed executor of Darlene's estate.
¶ 6 Other individuals relevant to the resolution of the summary judgment motions include the living grandchildren of Dwight and Helen. Phillip Hawpetoss and Madeline Hawpetoss are plaintiff's adult children. Crystal Brockman is Darlene's stepdaughter.
¶ 7 Since Helen's death, the Anderson family members lived near each other in Springfield, Illinois. Dwight, plaintiff, Lynda, and Madeline resided together in Dwight's home at 4551 Chinquipin. Darlene resided at 4171 Chinquipin; Phillip lived with his girlfriend and daughter at 4595 Chinquipin.
¶ 8 Plaintiff's dispute with Darlene centers on the estates of each parent. Regarding their mother's estate, plaintiff contends Darlene, as a successor co-trustee under the 2002 trust created by Helen (Helen's Trust), owed her, the only surviving beneficiary under the terms of the trust, fiduciary duties of care. Plaintiff argues Darlene breached those duties in multiple ways, including by taking funds for her own benefit. Regarding Dwight's estate, plaintiff contends Darlene tortiously interfered with her testamentary expectancy.
¶ 9 A. Evidence of Helen's Property
¶ 10 The record shows Helen acquired multiple assets, including properties in Bond County and corporate stock in DarLynDeb, Inc. and Lu Bob, Inc. The parties point to no evidence regarding the value or assets of DarLynDeb, Inc., other than the fact DarLynDeb, Inc. owed Helen a significant sum. Lu Bob, Inc., owned two restaurants on Helen's Bond County property: Lu Bob's Restaurant and Circle B Restaurant Steakhouse (Circle B). After Helen's death, Dwight filed an inventory with the probate court, valuing Helen's assets at the time of her December 28, 2003, death with a negative number. Plaintiff disputes that inventory with the following evidence as to the value of those assets.
¶ 111. 1997 Statement of Financial Condition
¶ 12 In October 1997, an accounting firm produced a statement of financial condition for Helen. At the beginning of the statement, the firm observed Helen "elected to omit substantially all of the disclosures required by generally accepted accounting principles." The firm further observed if those disclosures had been included, such disclosures might affect the conclusion of the firm as to Helen's August 1997 financial condition.
¶ 13 According to the statement, Helen's net worth was over $691,000. The statement shows Helen owned all outstanding shares of stock in two corporations: DarLynDeb, Inc., and Lu Bob, Inc. According to the statement, the shares of stock had no value as the corporate liabilities exceeded the value of the assets. However, the statement showed "Notes Receivable" from those corporations totaled almost $500,000. That amount was factored into Helen's "net worth" figure, as was real estate valued at $255,000.
¶ 14 2. 1997 "Restricted Appraisal Report-Limited Appraisal"
¶ 15 This October 1997 "limited appraisal" provides the market value for "Anderson Properties" in Bond County. The appraiser determined Circle B was valued at $395,000, Lu Bob's Restaurant valued at $325,000, the vacant land next to Lu Bob's valued at $90,000, and Prairie House, a 38-acre parcel, valued at $350,000.
¶ 16 3. 2002 Restricted Appraisal Report
¶ 17 This appraisal report determined the market value of vacant land adjacent to Lu Bob's Restaurant. Next to the intended use of report, the appraiser wrote the sole purpose of the appraisal was to assist Greenville Bank in underwriting a real-estate loan on this property. The report valued the property at $304,000 as of January 2001.
¶ 18 4. 2001 Personal Financial Statement
¶ 19 On a personal financial statement submitted to Union Planters Bank for an application for individual credit. Helen listed her net worth at over $1.2 million.
¶ 20 5. Lu Bob, Inc.
¶ 21 At one point, Helen was the sole shareholder in Lu Bob, Inc. In support of his summary judgment motion, defendant provided evidence Helen sold that share to Robert Funderburk on October 17, 2003. According to an affidavit signed by Funderburk, Helen approached him in the fall of 2003 about buying the one outstanding share of LuBob, Inc. Funderburk averred he purchased that share on October 17, 2003. Attached to the affidavit is a copy of the stock certificate showing the sale occurred on October 17, 2003.
¶ 22 Plaintiff attached to her motion for summary judgment minutes from the January 2, 2004 meeting of Lu Bob, Inc.'s board of directors. The minutes were taken by plaintiff, who was elected president/secretary of Lu Bob, Inc. According to the page of the record cited by plaintiff, those who attended that meeting were plaintiff, Dwight, Lynda, and Darlene. The minutes provide the following: "On this date, one share of stock was sold to Robert L. Funderburk, for the price of $1,000, paid for by check in hand."
¶ 23 B. Helen's Testamentary Devices and Probate
¶ 24 On May 1, 2002, Helen executed both a will and a declaration of trust. Under the terms of the will, Helen left the residue of her estate to her daughters, whom she identified as "Successor Co-Trustees" under the terms of her trust.
¶ 25 According to the terms of the trust, Helen and Dwight were named co-trustees. Darlene and Dwight were named successor co-trustees. Lynda and plaintiff were named successor co-trustees should either Darlene or Dwight die or be unwilling to act as a successor co-trustee. Helen, Dwight, Darlene, Lynda, and plaintiff signed the trust document.
¶ 26 In the trust, if Dwight were to survive Helen, the amount that could pass free of federal estate taxes would be placed in a "family trust" for the benefit of the successor co-trustees. Dwight had the benefit to the income with a right to encroach on the principal if "needed for his health, comfort, support and in his best interest in his accustomed standard of living." Upon Dwight's death, the principal of the family trust would be distributed to Helen's children in equal shares. If one of her children died with no descendants, the share would lapse to the remaining children.
¶ 27 On December 28, 2003, Helen died.
¶ 28 In March 2005, Dwight opened a probate case, Sangamon County case No. 05-P-120, for Helen. According to the filing, Dwight listed Helen's Trust as the sole legatee. Dwight also filed an inventory of probate assets for Helen's estate. This inventory lists the approximate value of the estate as a negative value. The inventory identifies two parcels of property in Bond County, Illinois. One parcel was 2.53 acres; the other was 38.24 acres (Prairie House). The inventory further identifies some personal property owned by Helen, including funds in a bank account, an automobile, a mobile home, and miscellaneous items, valued at approximately $8000. An addendum lists the "2003 Taxes Assessed Valuation" for each property, as well as amounts owed to the bank as of the date of Helen's death. The total equity for the properties was listed as approximately negative $146,000. The inventory includes the following notation: "No waiver or proof of service showing that Debra received notice of the proceedings is in the probate file."
¶ 29 The probate court entered an order approving the accounting in January 2006.
¶ 30 C. Transactions Involving Helen's Former Property
¶ 31 Plaintiff provided documentary evidence showing Dwight's disposal of properties formerly owned by Helen. Regarding Prairie House, the 38-acre property listed in the inventory, the mortgage was released in July 2011 after payment of the loan was satisfied. In September 2011, a quit claim was conveyed from plaintiff, Darlene, and Lynda as successor co-trustees of Helen's Trust to DarLynDeb, Inc. This property was then sold in 2014 under a "contract for deed." Dwight received the payments, and the remainder interest was assigned to Darlene by Dwight's estate.
¶ 32 Regarding the 2.56 acres listed in the inventory, plaintiff presented evidence showing part of the parcel, with a part owned by Lu Bob, Inc., was sold in 2019 for over $150,000. The proceeds went into an account for which Darlene was the remainder beneficiary.
¶ 33 In support of his summary judgment claims, defendant included deposition testimony from Michael Barton, an attorney hired by Dwight to clean title to property Helen owned in Bond County: "The problem was that a deed had been prepared, apparently by him, that attempted to convey a lot that was owned by his wife." For the 2.536-acre parcel, Barton drafted a quit claim deed from Dwight and Darlene, as co-trustees of Helen's Trust, to plaintiff, Darlene, and Lynda, as successor co-trustees in Helen's Trust. The deed states the following: "This deed is being filed to correct and clarify the title to the property *** due to the filing of an invalid executor's deed filed February 27, 2007[.]" A second quit claim deed, executed the same day and signed by the parties, then conveyed the property from plaintiff, Darlene, and Lynda as successor co-trustees of Helen's Trust to Dwight.
¶ 34 D. Dwight's Testamentary Actions
¶ 35 Dwight executed a trust in 2008. At his deposition, Barton testified he reviewed that trust and found it incomplete as "it didn't have all the necessary paragraphs to provide for administration." In January 2012, Dwight executed a "Restatement" to amend his 2008 trust. In the Restatement, Dwight provided for the division of various personal items between plaintiff and Darlene, $1000 to Phillip, and $1000 to Madeline. Dwight's stock in Lu Bob, Inc., and DarLynDeb, Inc., as well as his real-estate interests in Bond County, would go to Darlene. Dwight's remaining property was to be placed in the "Dwight Anderson Family Trust." The income was to be paid equally to plaintiff, Darlene, and Larson for their lives. The principal was then to be divided equally among Phillip, Madeline, and Brockman. On the same day the Restatement was signed, Dwight deeded Shane a house.
¶ 36 After the Restatement was signed, there is evidence of misconduct by Phillip and Madeline. Attached to defendant's motion for summary judgment are documents showing court and police involvement as a result of the misconduct. On June 25, 2012, Jaclynn Lewis, who resided with Phillip and their daughter, filed a verified petition for order of protection against Phillip based on an allegation of abuse. On January 25, 2013, the Sangamon County Sheriff's Office responded to the residence of Dwight, plaintiff, and Madeline, for a disturbance call involving a brother and sister. According to the report, the mother was also present. She informed police she was "tired of her kids getting into arguments all the time." The brother fit the description of Phillip provided in the aforementioned order of protection. No physical injuries were observed.
¶ 37 On March 13, 2013, the Sheriff's Office responded to another disturbance call at the family residence. The dispute involved a 54-year-old woman and her 22-year-old daughter. The daughter, after her request for money was denied, began yelling, throwing garbage, and ransacking her room. The mother went upstairs to talk to her father. The mother decided she had enough of her daughter's violent outbursts and told her to pack up and leave. The mother called the police.
¶ 38 On April 2, 2013, Lewis petitioned for an emergency order of protection against Phillip. Among other acts, Lewis alleged Phillip hit and kicked her and struck her with a guitar.
¶ 39 On May 21, 2013, plaintiff petitioned for an order of protection against Madeline. Plaintiff alleged in the verified petition Madeline kept her in her apartment against her will, forced her to write her a check for $200 and to give her $80 in cash, threw food at plaintiff and dye on the carpet, threw heavy glass and ceramic objects around the house, and disconnected the phone. Plaintiff alleged Madeline struck her, leading plaintiff to call the police.
¶ 40 Barton testified the conduct of Madeline and Phillip prompted Dwight to make changes to his trust. By affidavit, Barton averred he met with Dwight in June 2016 to discuss changes Dwight wanted to make to his trust. Dwight told Barton he wanted to remove Madeline and Phillip from his testamentary plans. Dwight relayed Madeline and Phillip were not paying their obligations, were not maintaining their properties, and were difficult to be around. Dwight further indicated he had concerns "over money disappearing."
¶ 41 On June 22, 2016, Dwight executed the Second Restatement to his trust. The property dispositions outlined from the initial Restatement remained the same except the cash bequests to Phillip and Madeline were deleted. While the income distribution provisions during the lives of plaintiff, Darlene, and Shane remained the same as in the initial Restatement, Dwight changed the provision for the ultimate disposition of the trust assets. Under the Second Restatement, the survivor of plaintiff, Darlene, and Shane would have a limited testamentary power of appointment over the trust property. If the power of appointment were not exercised the trust property would default to Brockman.
¶ 42 In March 2018, Barton and Dwight met to discuss updates to the estate plan. Dwight wanted to eliminate plaintiff and Darlene as co-managers of the properties since the two were not getting along. Dwight also stated he had Indiana properties he had failed to include in the earlier documents. He wanted those properties to go to Darlene as she had a relationship with her Indiana cousins. Dwight wanted Darlene to keep her house and nearby properties, which included nine addresses. Dwight wanted plaintiff to have lifetime use and control of his house and four rental properties. Dwight wanted Darlene to have a general power of appointment over trust assets, "with the default taker being [Brockman], thus eliminating any possible pass down from Plaintiff to her children, Phillip and Madeline." The document to reflect Dwight's wishes, the Third Restatement, was executed in May 2018.
¶ 43 In 2019, Barton drafted at Dwight's request, a final revision to his trust documents. Dwight "was tired of dealing with the whole family situation and wanted out of the property[-]management responsibilities." The provisions of this version were essentially the same as the Third Restatement, but he wanted the provisions to be effective as soon as the new trust was funded. This document was executed on February 28, 2019. Dwight died before the trust was funded.
¶ 44 Barton testified in his meetings with Dwight he observed no signs of cognitive impairment.
¶ 45 In her arguments regarding Barton's counsel to Dwight and preparation of his testamentary documents, plaintiff emphasizes the billing records of Barton, which shows multiple conversations with Darlene and few with Dwight. In January 2012, 0.75 hours were billed for "Revise documents and Telephone conference with Darlene." On August 4, 2014, 1.0 hours were billed for "Conference with Darlene re update and issues with grandson." On June 20, 2016, 1.50 hours were billed for "Conference with family and prepare new documents and deeds." Over the next two days, the documents were drafted and finalized. On April 17, 2017, 0.25 hours were billed for "Telephone conference with Darlene;" in December 2017, another conference with Darlene lasted 0.75 hours. In March 2018, there was a 45 minute "Conference with Dwight." On May 1, 2018, 3.75 hours were billed for "Draft documents, work on legals, conference with Dwight and daughters, work on options." On June 5, 2018, another 15-minute telephone conference was had with Darlene. On February 21, 2019, 1.75 hours were billed for "Finalize new documents and conference with Darlene."
¶ 46 Plaintiff further emphasizes a problem with Barton's credibility in the inconsistent statements made about Lynda's signature on the deeds transferring property through Helen's Trust. On the deed, Barton notarized Lynda appeared before him and signed the written instrument. In the answer to the interrogatories, however, Barton answered Lynda signed at her home in Darlene's presence.
¶ 47 E. Dwight's Health
¶ 48 Plaintiff raises issues regarding Dwight's mental health, calling Dwight "elderly and enfeebled." For this proposition, plaintiff points generally to 22 pages of medical records appearing in the record. According to these records, Dwight had a history of physical issues, including diabetes, coronary artery disease, and hypertension. He also suffered transient global amnesia. The records show, in April 2003, Dwight's mental status was "entirely intact." In May 2011, Dwight was "still running his own business." He had "put in some rental mobile homes." Dwight's memory was "a little worse than it used to be." In January 2012, a physician observed "[Dwight] is steady on his feet." He appeared well. The physician believed Dwight's memory was "diminishing some." In January 2015, a physician observed Dwight had an unsteady gait. His memory was "obviously poor," but Dwight was "alert and oriented." A note of the physician's impression included Dwight "may certainly have Alzheimer disease." In December 2017, it was observed Dwight was a "[w]ell-developed, well-nourished, elderly, forgetful male." The medical records list a family history of Alzheimer's disease, including Dwight's mother and sisters.
¶ 49 To address the mental-health concerns, defendant includes the affidavit of Glennon Paul, M.D. Dr. Paul averred he treated Dwight as a patient regularly between 2001 and 2015. Dr. Paul averred Dwight "was always alert and fully in charge of his medical care." Dr. Paul observed no behavior that would indicate Dwight suffered from Alzheimer's disease or any other form of dementia.
¶ 50 F. Subpoenas and First Amended Complaint
¶ 51 Beginning approximately three months after filing the complaint, plaintiff issued multiple subpoenas, seeking documents from various financial institutions and healthcare facilities. In September 2021, Lawson moved to quash the subpoenas for Darlene's financial records.
¶ 52 In October 2021, plaintiff filed her first amended complaint, alleging claims against Shane as executor of Darlene's estate and against Larson individually.
¶ 53 In count I, plaintiff alleged a claim for breach of fiduciary duty against Darlene's estate. Plaintiff alleged Darlene, as successor trustee of Helen's Trust, owed her, the only remainder beneficiary, a fiduciary duty. Plaintiff asserted Darlene breached that duty by (1) converting assets from Helen's Trust for Darlene's benefit, (2) failing to inform plaintiff she was entitled to remaining trust assets, (3) wrongfully removing trust principal, and (4) failing to segregate trust assets and maintain an accurate accounting of trust dealings.
¶ 54 In count II, plaintiff sought a constructive trust against Darlene's estate. Plaintiff asserted she was entitled to assets that were purchased from proceeds of the principal of Helen's Trust.
¶ 55 In count III, plaintiff asserted a claim of tortious interference with expectancy of inheritance against Darlene's estate. Plaintiff alleged she had an expectancy to inherit money and land from Dwight. Plaintiff maintained Darlene acted in a fiduciary capacity with Dwight, as she was actively involved in creating the estate documents that limited plaintiff's inheritance. Plaintiff maintained Darlene benefitted materially from her influence over Dwight's estate.
¶ 56 In count IV, plaintiff asserted a claim for conspiracy to commit tortious interference with expectancy of inheritance against Larson. Plaintiff alleged Larson committed acts of fraud and intimidation against Dwight and converted rental incomes into his own personal property.
¶ 57 In counts V and VI, plaintiff sought constructive trusts over the property Darlene and Larson allegedly held due to their acts of financially exploiting Dwight in their scheme against plaintiff.
¶ 58 Count VII is a spoliation of evidence claim against both the estate of Darlene and Larson. In this count, plaintiff alleged Darlene and Larson, before Dwight's death, began removing boxes of paperwork related to Dwight's and Helen's estates and burning them.
¶ 59 G. Motions for Summary Judgment
¶ 60 1. The Motion Filed by Larson, as Executor
¶ 61 In January 2022, Larson, as executor of Darlene's estate, moved for summary judgment on counts I, II, III, V, and VII. Larson did not move for summary judgment on the claims against him individually, i.e., counts IV and VI.
¶ 62 For counts I and II, Larson argued Darlene did not owe a fiduciary duty under Helen's Trust as no valid trust was created. Larson emphasized the final approved accounting for the estate established the estate was insolvent. Regarding the tortious-interference counts, Larson argued plaintiff cannot establish elements of the offense. Larson further maintained the Dead Man's Act (735 ILCS 5/8-201 (West 2020)) substantially limits the evidence plaintiff can use to support her claims, as Darlene, Dwight, Helen, and Lynda are all deceased.
¶ 63 As to count VII, Larson maintained the evidence fails to show he and Darlene owed no duty to plaintiff to preserve evidence.
¶ 64 2. Plaintiff's Motion
¶ 65 Plaintiff asserted she established Helen's Trust existed. Plaintiff further maintained the inventory filed by Dwight in probate was not binding as the inventory was created by "fraud, accident, or mistake." Plaintiff further emphasized she attached an affidavit by Brockman, who testified she assisted Darlene in burning 12-13 banker's boxes of financial records related to Helen's business interests in late 2019 and Darlene's conduct in the burning of the records upset Larson. As to her tortious-interference-based claims, plaintiff maintained the estate plans executed by Dwight were presumptively invalid as the product of undue influence by Darlene and the evidence presented by Larson did not overcome that presumption.
¶ 66 H. Summary Judgment Order
¶ 67 In September 2022, the trial court granted defendant's motion for summary judgment. The court found the evidence established Darlene did not owe a duty of fiduciary care to plaintiff, as the trust was not funded and did not, therefore, exist. The court concluded the evidence overcame the presumption that the conduct of Darlene, who had a fiduciary relationship with Dwight, was presumptively fraudulent. The court concluded the testimony by Barton was uncontradicted and corroborated by evidence of Phillip and Madeline's behavior. This evidence, the court found, established Dwight's choices were his own. Last, the court concluded plaintiff could not establish the spoliation claim as there are no facts to show Darlene had a duty to preserve the evidence and any evidence to show Darlene had voluntarily undertaken such a duty would be inadmissible under the Dead Man's Act.
¶ 68 After granting defendant's motion for summary judgment and denying plaintiff's, the trial court entered an order pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), finding no just reason for delaying appeal of the final orders on counts I, II, III, V, and VII.
¶ 69 This appeal followed.
¶ 70 II. ANALYSIS
¶ 71 Summary judgment is proper when the pleadings, depositions, affidavits, and admissions, viewed in the light most favorable to the nonmovant, establish (1) no genuine issue of material fact and (2) the movant is entitled to judgment as a matter of law. Blagden v. McMillin, 2023 IL App (4th) 220238, ¶ 38. On a motion for summary judgment, the court is not to try issues of fact but determine whether a triable issue exists. Messerly v. Boehmke, 2014 IL App (4th) 130397, ¶ 32, 8 N.E.3d 57. An issue is triable when material facts are disputed or when the facts are undisputed but reasonable persons may make different inferences from those facts. Id. "Summary judgment is a drastic means of disposing of litigation and, therefore, should only be allowed when the right of the moving party is clear and free from doubt." Lewis v. OSF Healthcare System, 2022 IL App (4th) 220016, ¶ 38. The question of whether a duty of care exists is one of law to be decided by the court, and it may be decided on a motion for summary judgment. Blagden, 2023 IL App (4th) 220238, ¶ 39.
¶ 72 Our review of an order granting summary judgment is de novo. Lewis, 2022 IL App (4th) 220016, ¶ 38.
¶ 73 A. Breach of Fiduciary Duty
¶ 74 On this claim, the trial court agreed with defendant and found plaintiff's claim for breach of fiduciary duty against Darlene's estate failed as no trust was created due to the insolvency of Helen's estate. Plaintiff does not dispute the court's conclusion a trust is not valid without definite subject matter or trust property. Instead, plaintiff maintains the court was incorrect in finding Helen's estate insolvent.
¶ 75 In challenging the trial court's conclusion the estate was insolvent, plaintiff argues Dwight, when seeking to close Helen's estate, provided a false inventory to the probate court. Plaintiff maintains, under section 28-11(f) of the Probate Act of 1975 (755 ILCS 5/28-11(f) (West 2020)), the order declaring Helen's estate as closed is not binding on her as a "fraud, accident or mistake" was committed in the filing of the inventory. In support of her claim Helen's estate was not insolvent, Helen points to the August 1997 statement of financial condition that shows she was owed near $500,000 from DarLynDeb, Inc., and Lu Bob, Inc. Plaintiff further points to the amounts for which Helen's properties sold in 2011. Plaintiff last emphasizes the minutes from the Lu Bob, Inc., meeting showing the sale occurred in January 2004, after Helen died, not before as set forth on the stock certificates.
¶ 76 However, the evidence on which plaintiff relies does not establish Helen's Trust was funded and solvent at the time of her death in December 2003. The August 1997 appraisal was six years old at the time of Helen's death and does not show the estate was solvent. The weight of the appraisal is further undermined by the fact the accountants who provided the appraisal noted, "Helen L. Anderson has elected to omit substantially all of the disclosures required by generally accepted accounting principles." The January 2001 appraisal showing an increase in the property value, as well as the April 2001 financing statement, are too far removed to establish the financial condition of Helen's estate at the end of December 2003 and undermine the probate court's order. Similarly, the 2011 sales of the two parcels listed in the inventory, which occurred approximately six years after probate was closed, do not show the estate was solvent in December 2003.
¶ 77 The closer question is the ownership of Lu Bob, Inc., as of December 28, 2003. The evidence on this matter includes the sworn testimony of Funderburk he purchased the lone outstanding share from Helen in October 2003 and a stock certificate with the same date. Other evidence is a copy of the minutes from a Lu Bob, Inc., board meeting in which it is noted the shares were sold to Funderburk in January 2004. The minutes show plaintiff, Darlene, Dwight, and Lynda were present and plaintiff authored the minutes. There is, however, no indication on the face of the minutes, as cited in the record by plaintiff, that show Funderburk was present at this meeting or agreed it was a fair representation of what occurred. The more reliable evidence, that of the affidavit and the stock certificates themselves, support the inventory's exclusion of any mention of Lu Bob, Inc., stock as property of Helen.
¶ 78 Even when viewed in plaintiff's favor, this evidence does not establish the inventory filed by Dwight and approved by the probate court is the result of fraud or mistake.
¶ 79 We further find unconvincing the argument the transactions in September 2011, used to clean title to the Bond County properties, establishes "the trust absolutely existed." If the trust did not form, the use of the trust's name does not create a valid trust eight years after the trust failed.
¶ 80 As the trust was not funded, plaintiff has not established Darlene owed her a fiduciary duty. Her claim for breach fails. Count II is founded on proof Darlene briefed a fiduciary duty to plaintiff. As we have found no duty existed, summary judgment in defendant's favor on count II is proper. As summary judgment was proper for Larson on counts I and II, we find the trial court did not err in denying plaintiff's motion for summary judgment on counts I and II.
¶ 81 B. Tortious Interference with an Inheritance
¶ 82 To recover for tortious interference with testamentary expectance, a claimant must prove 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 expectancy would have been realized but for the interference; and (5) damages." Morrow v. Pappas, 2017 IL App (3d) 160393, ¶ 16, 90N.E.3d 501 (citing In re Estate of Ellis, 236 Ill.2d 45, 52, 923 N.E.2d 237, 241 (2009)).
¶ 83 Plaintiff contends a triable issue of fact precludes summary judgment on this claim. She disagrees with the trial court's conclusion she failed to meet the first element. She contends she, as heir, has shown the existence of an expectancy.
¶ 84 We agree there is sufficient evidence upon which to find the existence of an expectancy. The 2012 Restatement provides the Bond County interests and stock in the two corporations would go to Darlene but the rest of the property would be placed in trust. The income from that trust would go to plaintiff, Darlene, and Larson. In the 2018 version, however, the "residue" from which plaintiff would receive income decreased substantially. Indiana properties, and nine Springfield-area properties, were directed to go to Darlene, while plaintiff was given a life estate in Dwight's house and four properties. In addition, plaintiff lost the power to co-manage the properties. Plaintiff thus had an expectancy for greater income under the 2012 version than in the 2018 one and that expectancy changed to Darlene's benefit. The first element is satisfied. See generally DeHart v. DeHart, 2013 IL 114137, ¶ 40, 986 N.E.2d 85 (finding a claim for tortious interference sufficiently alleged when there were allegations a prior will existed that provided an expectancy that did not exist in a later will).
¶ 85 Plaintiff next challenges the trial court's conclusion there is no genuine issue of material fact as to fraud. Plaintiff maintains, because Darlene was a fiduciary to Dwight, there is a presumption the transactions that benefited Darlene were fraudulent. Plaintiff contends there is a triable issue fact on the question of whether that presumption was overcome. Plaintiff emphasizes Dwight's physical and mental condition and the billing records that show Barton conversed primarily with Darlene about Dwight's trust and its revisions.
¶ 86 Larson admits plaintiff enjoys the benefit of the presumption of fraud but argues the testimony of Barton was uncontradicted. According to Larson, this uncontradicted testimony establishes the decision to change the trust was his alone.
¶ 87 When a fiduciary benefits from a transaction involving the principal, a presumption of fraud exists. Estate of Alfordv. Shelton, 2017 IL 121199, ¶ 23, 89 N.E.3d 391. "Once a fraudulent transaction has been alleged, the burden then shifts to the agent to prove by clear and convincing evidence that the transaction was fair and did not result from his undue influence over the principal." Id. If that burden is met, "the transaction in question will be upheld." Spring Valley Nursing Center, L.P. v. Allen, 2012 IL App (3d) 110915, ¶ 13, 977 N.E.2d 1230. The amount of evidence necessary to overcome the presumption of fraud is not determined by a fixed rule. Nemeth v. Banhalmi, 125 Ill.App.3d 938, 960, 466 N.E.2d 977, 993 (1984). "If a strong presumption arises, the weight of the evidence brought in to rebut it must be great." Id. (quoting Franciscan Sisters Health Care Corp. v. Dean, 95 Ill.2d 452, 463, 448 N.E.2d 872, 877 (1983)). When "it is shown that the testator was enfeebled by age or disease," courts have generally required "a greater quantum of evidence." Id.
¶ 88 We find a triable issue exists as to whether the presumption is overcome. We agree Barton has testified Dwight expressed reasons for the changes to his estate plans. However, the corroborated portions of those expressed reasons relate to the exclusion of Phillip and Madeline from his testamentary plans. There is no corroborating evidence to support Dwight's reasons for lowering plaintiff's inheritance from the income of his properties. On the other hand, there is evidence establishing Dwight's health unsurprisingly worsened as he aged. He became more physically enfeebled and there were questions by medical personnel as to whether he suffered Alzheimer's disease. Dwight expressed frustration at dealing with the family drama, and this frustration was not limited to his thoughts on Phillip and Madeline. For example, he made changes to avoid such drama by removing plaintiff as a co-manager with Darlene and by seeking to set the trust in motion before his death. Moreover, the billing records of Barton show Darlene was involved in the drafting of the testamentary devices. Multiple conversations between Barton and Darlene occurred, including discussions about final drafts. As reasonable persons may make different inferences from these facts, especially when viewed in the light most favorable to plaintiff, the nonmovant, a triable issue exists and summary judgment is inappropriate. See Messerly, 2014 IL App (4th) 130397, ¶ 32.
¶ 89 As a triable issue exists on this matter, a triable issue also exists on the constructive-trust claim based on the tortious-interference claim (count V).
¶ 90 C. Count VII-Spoliation of Evidence
¶ 91 In the argument section of her opening brief, plaintiff set forth four sentences on her claim for spoliation of evidence. In these sentences, plaintiff asserts Phillip and Brockman both witnessed Darlene's burning of records. Plaintiff further maintains Brockman's statements were against her interests and were, therefore, exceptions to the rule against hearsay. Plaintiff did not, however, set forth the elements of a spoliation claim nor put forth any legal argument on why the trial court's order granting summary judgment on count VII should be reversed. This argument fails to comply with the Supreme Court briefing requirements and is, therefore, forfeited. Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020) ("Argument, which shall contain the contentions of the appellant and the reasons therefor, with citations of the authorities and the pages of the record relied on. *** Points not argued are forfeited and shall not be raised in the reply brief ***.")
¶ 92 D. Order Quashing Subpoenas
¶ 93 Plaintiff contends the trial court erred in quashing her subpoenas related to Darlene's personal financial records. Plaintiff seeks these records to find where the proceeds from Helen's properties went.
¶ 94 Plaintiff sought these documents to prove her claim of a breach of fiduciary duty by Darlene. As we have concluded the trial court properly concluded the trust was not funded and no fiduciary duty under the trust therefore arose, the order quashing the subpoenas and the order denying the motion to reconsider were proper.
¶ 95 III. CONCLUSION
¶ 96 We affirm the trial court's order granting summary judgment on counts I, II, and VII. We reverse the court's order granting summary judgment on counts III and V and remand for additional proceedings.
¶ 97 Affirmed in part; reversed in part.