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Estate Planning & Probate Law FLASHPOINTS April 2021

Elizabeth A. Garlovsky, Sarah Barnes & Jennifer J. Thurswell, Harrison & Held, LLP, Chicago
312-753-6185 | E-mail Elizabeth A. Garlovsky | 312-753-6155 | E-mail Sarah Barnes | 312-753-6126| E-mail Jennifer J. Thurswell

Spouse as Administrator of Estate: Whether Spouse and Ward Had Legal Marriage

In In re Estate of McDonald, 2021 IL App (2d) 191113, the appellate court addressed issues that are common to probate practice, including providing notice to heirs, declaring heirship, and the admissibility of testimony under the Dead Man’s Act. The unique procedural history of McDonald, however, led the appellate court to also address the issue of whether a marriage entered into by an adult who was under a legal guardianship requires the court’s approval and what constitutes a valid marriage in Illinois. While some of the trial court’s rulings surrounding this contested estate were affirmed, the critical question of whether the appellant presented sufficient evidence to demonstrate a valid marriage to the decedent (who was under legal disability at the time), thus making her the sole legal heir to the decedent’s estate, is now being remanded to the trial court for a new hearing on the appellant’s petition for appointment as the administrator.

Prior to his death, the decedent, John W. McDonald III, was adjudicated a person with a disability on March 7, 2017. His brother, Shawn McDonald, was appointed as plenary guardian of the decedent’s person and estate. In support of his guardianship petition, Shawn provided a doctor’s statement that the decedent suffered from “bipolar disorder with manic and depressive episodes [and] alcohol use disorder (severe).” 2021 IL App (2d) 191113 at ¶7. The decedent subsequently retained an attorney and objected to the guardianship order, but the record does not show that a trial was ever conducted regarding the objection. A few months later, on July 11, 2017, the decedent obtained a marriage license and participated in a marriage ceremony with respondent, Ellizzette McDonald. Five months later, on December 11, 2017, the decedent died intestate.

Shawn petitioned the Kane County Circuit Court for letters of administration, and he was named as the administrator of the decedent’s estate. Based on the affidavit of heirship that Shawn filed, the court declared the decedent’s parents and siblings as his only heirs. Shawn’s affidavit of heirship further stated that the decedent was married “once and only once and then to Debbie Greene McDonald,” with that marriage ending in divorce on a date prior to 2012. 2021 IL App (2d) 191113 at ¶9. Shawn asserted that on July 11, 2017, the decedent “participated in a wedding ceremony with Ellizzette Duvall Minnicelli”; however, Shawn argued that the decedent and Ellizzette’s marriage was void ab initio as the decedent did not possess the capacity to consent to the marriage. Id. Shawn then filed a petition to declare the marriage to Ellizzette invalid and attached the certificate of marriage as an exhibit. Shawn later filed a motion asking the court to take judicial notice of three documents that were issued by the clerk of Edgar County, Illinois, namely (1) a certified marriage certificate between the decedent and Ellizzette, (2) a certified marriage license for the decedent and Ellizzette, and (3) a certified copy of a marriage application and record for the decedent and Ellizzette. The court granted Shawn’s motion and entered an order taking judicial notice of said documents.

On January 17, 2018, Ellizzette filed motions to vacate the order appointing Shawn as administrator of the decedent’s estate and the order of heirship, claiming that she was the decedent’s surviving spouse. Ellizzette asserted that as the decedent’s surviving spouse she was the decedent’s sole heir and had a superior right to act as the administrator of the decedent’s estate. In response to Ellizzette’s motions to vacate the orders, Shawn responded that although the decedent and Ellizzette participated in a “marriage ceremony,” because of the guardianship, the decedent did not have the capacity to enter into a “marriage contract.” 2021 IL App (2d) 191113 at ¶15. Asserting that marriage is a contract, Shawn referred to §11a-22(b) of the Probate Act, 755 ILCS 5/1-1, et seq., which provides that “[e]very note, bill, bond or other contract by any person for whom a plenary guardian has been appointed or who is adjudged to be unable to so contract is void against that person and his estate, but a person making a contract with the person so adjudged is bound thereby.” Id.

In reply, Ellizzette contended that §11a-22(b) of the Probate Act is meant to focus on transactional contracts entered into by a ward and not does not address the validity of a marriage. In fact, Ellizzette argued that the decedent’s guardianship alone was insufficient to establish that he was unable to consent to marriage “because the appointment of a guardian is not sufficient, in and of itself, to show that the person was incompetent to have consented to a marriage.” 2021 IL App (2d) 191113 at ¶16, citing Pape v. Byrd, 145 Ill.2d 13, 582 N.E.2d 164, 168, 163 Ill.Dec. 898 (1991). Ellizzette asserted that the validity of her marriage to the decedent was due a strong presumption under Illinois law. 2021 IL App (2d) 191113 at ¶16 (“When the celebration of a marriage is shown, the contract of marriage, the capacity of the parties, and, in fact, everything necessary to the validity of the marriage, in the absence of proof to the contrary, will be presumed.”), citing Larson v. Larson, 42 Ill.App.2d 467, 192 N.E.2d 594, 597 (2d Dist. 1963). Ellizzette contended that inquiries regarding the validity of marriage are controlled by the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq., §302(b) of which prohibits any effort to discredit a marriage after the death of either spouse on the basis of one’s capacity to consent thereto. 2021 IL App (2d) 191113 at ¶16 (“In no event may a declaration of invalidity of marriage be sought after the death of either party to the marriage under subsections (1), (2), and (3) of Section 301.”),citing 750 ILCS 5/302(b). See also 750 ILCS 5/301(1) (“The court shall enter its judgment declaring the invalidity of a marriage . . . entered into under the following circumstances: (1) a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage.”). Ellizzette asserted that Shawn was aware of the marriage between her and the decedent during the decedent’s lifetime but that, by failing to object to the marriage during the decedent’s lifetime, he was thus “time-barred” from challenging the marriage after the decedent’s passing.

The trial court ultimately denied Ellizzette’s motions to vacate but allowed Ellizzette to proceed with a petition under §9-7 of the Probate Act, which allows for letter of office previously issued to be revoked. Ellizzette subsequently filed a petition for letters of administration, an affidavit of heirship, and a motion for judgment on the pleadings with regard to her petition for letters of administration. After the trial court denied Ellizzette’s motion for judgment on the pleadings as “premature,” Shawn filed a motion in limine requesting that Ellizzette be barred from submitting any evidence or testifying regarding her alleged marriage to the decedent, arguing that such evidence would contravene the Dead Man’s Act (735 ILCS 5/8-201). 2021 IL App (2d) 191113 at ¶31, citing Laurence v. Laurence, 164 Ill. 367, 45 N.E. 1071 (1896); In re Estate of Diak, 70 Ill.App.2d 1, 217 N.E.2d 106 (1st Dist. 1966); and In re Estate of Enoch, 52 Ill.App.2d 39, 201 N.E.2d 682 (1st Dist. 1964).

After Ellizzette’s counsel was granted leave to withdraw, Ellizzette filed an appearance on her own behalf with a response to Shawn’s motion in limine, arguing that the plain language of §8-201(d) of the Dead Man’s Act states that “[n]o person shall be barred from testifying as to any fact relating to the heirship of a decedent.” 2021 IL App (2d) 191113 at ¶32, citing 735 ILCS 5/8-201(d). Following the parties’ oral arguments, the court granted Shawn’s motion in limine, barring Ellizzette from testifying as to her supposed marriage to the decedent or to the decedent’s heirship.

At the hearing on November 13, 2019, Ellizzette told the court that her father had been hospitalized and declared “end of life” two days earlier. 2021 IL App (2d) 191113 at ¶64. The court inquired whether Ellizzette would be ready for trial on November 18, 2019, and she informed the court that she would be present on that day. However, on November 18, 2019, Ellizzette filed a motion for continuance requesting the trial be continued to at least December 3, 2019, because her father’s illness was preventing both the father and mother from testifying and because her attorneys had withdrawn from the case. The court denied Ellizzette’s motion for a continuance.

Ellizzette’s petition went to trial with the evidence focused on the legitimacy of Ellizzette and the decedent’s marriage because if it were found that the marriage was valid, Ellizzette would be the sole heir of the decedent’s estate. During the trial, Ellizzette called witnesses, including the officiant, who testified regarding the logistic preparations for the marriage and the marriage ceremony itself and that Ellizzette and the decedent were “happily living together.” 2021 IL App (2d) 191113 at ¶¶39 – 42. Shawn moved for a directed finding at the close of Ellizzette’s case. The trial court granted Shawn’s motion, finding that Ellizzette failed to present a prima facie case on the validity of her marriage to the decedent because she did not present (1) a valid application for a marriage license, (2) evidence that a valid marriage ceremony occurred in Edgar County, (3) evidence that the ceremony was witnessed by two individuals, and (4) evidence that a best-interests hearing was held to determine if the marriage was in the decedent’s best interests. Ellizzette then filed a notice of appeal.

On appeal, Ellizzette raised five main issues. First, Ellizzette asserted that the court erred by appointing Shawn as the administrator of the decedent’s estate because she was not provided with the statutorily required notice. Second, she contended that the court erred in denying her motion for a continuance. Third, Ellizzette argued that the court erred in denying her motion for judgment on the pleadings. Fourth, she asserted that the court erred by barring her from testifying about her marriage and heirship at the trial. Fifth, Ellizzette argued that the court erred in granting Shawn’s motion for a directed finding.

First, regarding the lack of notice, the appellate court found that Ellizzette was not prejudiced by any lack of notice. She was allowed to file her own petition for letters of administration and an affidavit of heirship. Furthermore, the trial court held a hearing on Ellizzette’s pleadings, during which she was given an occasion to address her claims. Thus, the appellate court found that the trial court did not err when it granted Shawn’s petition without notice to Ellizzette.

Second, in affirming the trial court’s denial of Ellizzette’s request for continuance of the trial, the appellate court noted that litigants do not have absolute rights to continuances, the granting of which are within the sound discretion of the court. 2021 IL App (2d) 191113 at ¶62, citing In re Marriage of LaRocque, 2018 IL App (2d) 160973, ¶94, 107 N.E.3d 349, 424 Ill.Dec. 36, and Doe v. Parrillo, 2020 IL App (1st) 191286, ¶39. Because Ellizzette did not exercise due diligence in pursuing her motion to continue the trial, the court found that the trial court did not abuse its discretion in denying the motion for a continuance.

Third, regarding Ellizzette’s claim that the court erred when it denied her motion for judgment on the pleadings, the court noted that “a judgment on the pleadings is proper only when the pleadings disclose no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” 2021 IL App (2d) 191113 at ¶69, citing Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill.2d 381, 830 N.E.2d 575, 577, 294 Ill.Dec. 163 (2005). The trial court is entitled to take judicial notice of its own files and records as well as the trial court’s file. 2021 IL App (2d) 191113 at ¶72. In this case, the pleadings contain not only Ellizzette’s assertions that she was the decedent’s spouse and only heir but also Shawn’s contentions that the decedent died unmarried. Thus, there was a genuine issue of material fact regarding Ellizzette’s status as the decedent’s surviving spouse and sole heir. Therefore, the appellate court found that the trial court did not err in denying the motion for judgment on the pleadings.

Fourth, regarding Ellizzette’s assertion that the court erred in granting Shawn’s motion in limine that barred Ellizzette from testifying about her marriage and the decedent’s heirship under the Dead Man’s Act, Ellizzette argued that subsection (d) of the Dead Man’s Act expressly and unequivocally provides that “[n]o person shall be barred from testifying as to any fact relating to the heirship of a decedent.” [Emphasis added.] 2021 IL App (2d) 191113 at ¶75, citing 735 ILCS 5/8-201(d). In ruling in Shawn’s favor, the trial court relied on Laurence, supra, cited to in Shawn’s motion in limine. However, since Laurence, the Dead Man’s Act has been revised and two additional cases have shed light on the significant change in the law. Specifically, the court looked to In re Estate of Bailey, 97 Ill.App.3d 781, 423 N.E.2d 488, 53 Ill.Dec. 104 (5th Dist. 1981), and In re Estate of Hutchins, 120 Ill.App.3d 1084, 458 N.E.2d 1356, 76 Ill.Dec. 556 (4th Dist. 1984), which allowed testimony on the issue of heirship of the decedent pursuant to subsection (d) of the Dead Man’s Act. Because the express language of the Dead Man’s Act allows for testimony related to the heirship of the decedent, the appellate court reversed the ruling that barred Ellizzette’s testimony on her marriage to the decedent.

Fifth, Ellizzette challenged the grounds on which the trial court relied in its decision to grant a directed finding in Shawn’s favor. In ruling on a motion for a directed verdict, the trial court must first determine whether the plaintiff presented a prima facie case, and if the court finds that it has, then the court “weighs the evidence to determine whether the prima facie case survives.” 2021 IL App (2d) 191113 at ¶88, citing Minch v. George, 395 Ill.App.3d 390, 917 N.E.2d 1169, 1177, 335 Ill.Dec. 105 (1st Dist. 2009). In order to establish a prima facie case, the plaintiff must provide some evidence regarding each essential element of the cause of action. 2021 IL App (2d) 191113 at ¶89, citing In re Foxfield Subdivision, 396 Ill.App.3d 989, 920 N.E.2d 1102, 1106, 336 Ill.Dec. 512 (2d Dist. 2009). To legally marry in Illinois, a couple must apply for a marriage license in the county in which they intend to marry and both parties must be present before the county clerk or a deputy, pay the requisite fee, and sign the application for the license. 2021 IL App (2d) 191113 at ¶89, citing 750 ILCS 5/203. The couple must subsequently appear in front of an authorized officiant and consent to marry; they are then required to file the marriage certificate with the county clerk’s office within ten days of the ceremony. 2021 IL App (2d) 191113 at ¶89, citing 750 ILCS 5/209.

In this case, the court initially found that there was sufficient evidence to find that the alleged marriage was properly licensed. In fact, the trial court took judicial notice of the marriage license, certificate, and application on November 20, 2018, (almost a year before the trial) upon Shawn’s own motion. There was no limitation of the purpose for which the exhibits were admitted at trial; therefore, there was no need for Ellizzette to reintroduce them.

Regarding the ceremony, not only did Ellizzette’s witness testify that he performed the ceremony on July 11, 2017, but also the “Certification of Marriage” judicially noticed by the court lists the wedding ceremony as having occurred in Illinois on that date. Additionally, although Shawn and the trial court asserted that Ellizzette failed to present evidence that the marriage ceremony was witnessed by two individuals, neither cited any statutory provision that requires two witnesses to be present at the ceremony for a marriage to be valid in Illinois. Many states do have such a witness requirement, but Illinois is not one of them. The appellate court was also unpersuaded by Shawn’s reliance on Pike v. Pike, 112 Ill.App. 243 (1904), a decision from when common-law marriage was recognized in Illinois, thus requiring public knowledge of the marriage. Finally, the appellate court found that a best-interests hearing was not required before the decedent could get married based on the plain language of the Probate Act. The court noted that the law does not require prior approval by the court before a ward can get married. Therefore, the appellate court found that the trial court erred in granting Shawn’s motion for a directed finding and remanded the case for further proceedings.

Proposed Estate Tax Hike

In estate news: The 102nd General Assembly introduced H.B. 3920, 102d Gen.Assem. (2021), which would amend the Illinois Public Aid Code, 305 ILCS 5/1-1, et seq. If passed, the Illinois Department of Human Services will, going forward, provide $279 monthly payments to Illinois residents who receive Supplemental Security Income and to Illinois “undocumented residents who have a disability and meet other criteria.” Funding for these payments will come from state estate taxes by amending the Illinois Estate and Generation Skipping Transfer-Tax Act, 35 ILCS 405/1, et seq., to provide for an additional 5-percent tax on estates of $4 million or more.

For more information about estate planning and probate, see ASSET PROTECTION PLANNING (IICLE®, 2018). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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