Argument Report: Can Lack of Testamentary Capacity Be Proven From the Will Alone?

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A relatively quiet Illinois Supreme Court gave little indication of its leanings last week during oral argument in DeHart v. DeHart. Our preview of DeHart is here.

DeHart is a will contest. According to the complaint, the decedent had held plaintiff out for some sixty years as his son. This continued until 2000, when the plaintiff requested a certified copy of his birth certificate in connection with a passport application. The certified copy listed an entirely different person as the plaintiff's natural father. The decedent told the plaintiff that he had "secretly" adopted the plaintiff two years after his birth. In the years that followed, the decedent continued to hold out the plaintiff as his son. But in the final years of his life, the decedent married the defendant. Only a year later, he signed a will stating that he had no children and never mentioning the plaintiff. Three months later, the decedent died. The plaintiff challenged the will for lack of testamentary capacity, undue influence, and a claim for "equitable adoption." The Circuit Court dismissed, but the Appellate Court reversed. The Appellate Court held that the plaintiff could go forward on his lack of capacity claim based solely on the will's statement that decedent had no children, and became the first Illinois court to adopt the theory of equitable adoption.

Counsel for the defendant began with the issue of equitable adoption, heavily emphasizing what he saw as the policy reasons not to adopt the cause of action. Counsel pointed out that equitable adoption has always required pleading a contract to adopt, and since no such contract had been pled, the Court could reject the plaintiff's claim without ever reaching the issue of whether Illinois recognized the cause of action. Turning to the issue of the will contest, counsel argued that the representations of the witnesses to the will that the decedent appeared to be of sound mind had become a judicial admission on the plaintiff's part when the plaintiff attached the will to his complaint without impeaching the witnesses' views. Justice Thomas wondered how a will contest could ever proceed if such representations were conclusive. Counsel argued that the plaintiff was obligated to somehow impeach the witnesses through affirmative factual allegations. Justice Thomas suggested that the Court was required to accept the plaintiff's mere allegations of unsoundness on a 2-615 motion to dismiss. Counsel responded that the plaintiff's conclusory allegations weren't enough without supporting facts. The only basis for a finding of unsoundness was the statement in the will, and yet the complaint also alleged that the plaintiff and decedent had a loving relationship at the time the will was signed; according to counsel, since the complaint was internally contradictory, the complaint failed as a matter of law to allege lack of capacity. Turning to undue influence, counsel argued that the complaint was deficient for lack of specific factual allegations suggesting that the decedent's free will had been overcome.

Counsel for the plaintiff began his argument by showing the Court that plaintiff had actually had two birth certificates: one that he had used for most of his life, showing decedent's name as father, and the second certified certificate which had only come to light in 2000. Counsel argued that there had been a concerted effort to create plaintiff's first birth certificate, and even the decedent's obituary -- after the will was signed -- had said that the decedent had a son, grandson and great-grandchildren. Justice Burke asked whether, when there is a legal adoption, the birth certificate reflecting the name of the birth mother was destroyed. Counsel responded that he had learned in depositions that it was forwarded to Springfield. Justice Theis pointed out that the Court's earlier cases had referred to contracts to adopt, and asked what the elements of the contract were in this case. Counsel responded that under the unique circumstances - the social attitude towards unwed pregnancy at the time of plaintiff's birth - keeping the adoption a secret was sufficient consideration. The case presented unique circumstances, counsel argued; there was no need to establish a sweeping rule to govern a broad spectrum of cases.

On rebuttal, counsel for the defendant insisted that the law was clear in many jurisdictions that there could be no equitable adoption without an underlying contract. Plaintiff had never alleged that secrecy was the consideration for any agreement to adopt, according to counsel. Counsel closed by returning to the issue of public policy, arguing that it was very important that the Court not upset settled expectations by abruptly holding that merely "holding out" someone was sufficient to establish equitable adoption. Counsel predicted that adopting the plaintiff's theory would open up a Pandora's Box of problems as further cases tried to push the boundaries of the new claim.

DeHart should be decided within three to five months.

 

Topics:  Adoption, Equitable Adoption, Testamentary Capacity, Wills

Published In: Family Law Updates, Wills, Trusts, & Estate Planning Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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