Can the Language of a Will Prove Lack of Capacity?

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We complete our preview of the new civil review grants at the Illinois Supreme Court with DeHart v. DeHart [pdf], a will contest which raises a range of issues from how do you prove lack of testamentary capacity, to undue influence, to whether or not Illinois should adopt the theory of "equitable adoption."

Like many will contests, DeHart has a complex domestic drama wrapped inside. Plaintiff filed a will contest. According to his operative complaint, decedent had held plaintiff out for some sixty years as his son. In addition to telling members of the community for years that plaintiff was his son, decedent gave plaintiff a birth certificate listing his own name as the plaintiff's natural father. There the story remained until 2000, when plaintiff applied for a passport. The government wouldn't accept the copy of plaintiff's birth certificate he had, so for the first time, he requested a certified copy. The certified copy listed an entirely different person as plaintiff's father. When the plaintiff confronted decedent, the decedent said that plaintiff's mother had married the listed father after learning she was pregnant, but that decedent had "secretly" adopted plaintiff two years later. In the years following the 2000 discussion, decedent continued to represent plaintiff as his son; he financed a family vacation for himself, plaintiff and plaintiff's children, and at some point drafted a will leaving bequests to plaintiff and his children.

But then, at approximately eighty-three years of age, decedent married defendant. Only a year later, he signed a new will stating that he had no children and never mentioning plaintiff. When decedent died three months after the will was signed, the widow probated the document.

Plaintiff challenged the will on a litany of grounds: lack of testamentary capacity; defendant's undue influence; a separate tort claim against defendant for fraudulent inducement; and a claim that plaintiff was entitled to share in the estate as his adopted son, either through a contract of adoption or "equitable adoption," a theory which Illinois has neither adopted nor rejected. The Circuit Court dismissed, but the Appellate Court reversed on all counts.

The lack of capacity count is of particular interest. Although plaintiff alleged a host of facts which, on motion to dismiss, sufficiently alleged that plaintiff was a natural object of decedent's bounty, unlike many will contests, the lack of capacity rested on one fact only: decedent's statement in his will that he had no children. The defendant argued that the statement was factually true, but the Court held that that was for the jury to decide -- the statement in the will was sufficient for plaintiff's challenge to the decedent's capacity to proceed.

Reversal of several additional claims was relatively fact-bound: plaintiff alleged undue influence based on the claim that defendant held decedent's power of attorney, and plaintiff's allegations that she had intercepted and destroyed cards and letters from plaintiff. Although the Court noted that plaintiff's tort claim against defendant might ultimately be vulnerable if the will contest succeeded, it declined to affirm dismissal at this point.

The Appellate Court's holdings on adoption, however, may well establish an interesting precedent at the Supreme Court. Relying on Monahan v. Monahan, 14 Ill.2d 449 (1958), the court held that plaintiff had alleged enough circumstantial evidence that a jury could permissibly infer the existence of an enforceable contract to adopt. Presiding Justice Schmidt dissented from this holding, emphasizing the complaint's failure to identify the parties to the purported contract. In the alternative, the Appellate Court became the first court in Illinois to endorse the theory of adoption by equitable estoppel, pursuant to which, when a plaintiff alleges an express or implied contract to adopt, detrimental reliance, and performance of obligations under the de facto relationship, equitable estoppel prevents the alleged parent and those in privity with him from denying the relationship. The Court held that the complaint's allegations of sixty years of conduct by decedent consistent with a parental relationship was sufficient to establish an estoppel applicable against decedent's estate.