Illinois Supreme Court Holds Will's Language Can Suggest Lack of Capacity, and Adopts Cause of Action for Equitable Adoption

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A testator has held a younger man out for nearly sixty years as being his son. When the testator drafts a will stating that he has no children, is that statement a sufficient basis to plead a will challenge based on lack of testamentary capacity? On Thursday, a unanimous Supreme Court, in an opinion by Justice Robert R. Thomas, held in DeHart v. DeHart that the answer was “yes.” The Court made further news for wills-and-estates practitioners, adopting into Illinois law the cause of action for “equitable adoption.” Our detailed preview of the facts and lower court opinions in DeHart is here. Our report on the oral argument is here.

The decedent testator had told members of the community that the plaintiff was his son for fully six decades. When he made his funeral arrangements, he listed the plaintiff as his son, and listed the plaintiff’s children and grandchildren as his grandchildren and great-grandchildren. He provided the plaintiff with a birth certificate listing the testator as his father. Only when the plaintiff requested an original birth certificate in 2000, he discovered that the testator was not his biological father. He confronted the testator, who explained that he had married the plaintiff’s mother when plaintiff was two years old. The plaintiff’s natural father had married his mother after she became pregnant, but had subsequently abandoned them, and had not been seen or heard from since. The testator explained that he had hired an attorney to complete a legal adoption of the plaintiff, and he and the plaintiff’s mother had agreed to keep the details of the situation secret. For several years after plaintiff’s discovery, the testator continued to represent the plaintiff as his son, and treat him that way, allegedly making a will naming the plaintiff and his children as beneficiaries.

Things only began to change in 2005, when the 83-year old testator met the fifty-four year old defendant. In the months that followed their marriage, the defendant acquired a power of attorney, and the testator allegedly made her joint tenant on assets worth millions. In the final months before the contested will was drawn up, the defendant allegedly made misrepresentations to the testator about the plaintiff, telling the testator that the plaintiff was not his son, and ultimately began preventing the plaintiff’s cards and letters from reaching the testator. In December 2006, the testator made a new will stating that he had no children.

The testator died three months later. When defendant filed the will, plaintiff filed his complaint, alleging lack of testamentary capacity, undue influence, fraudulent inducement, intentional interference with testamentary expectancy, a contract to adopt the plaintiff and an equitable adoption. The plaintiff sought to depose the attorney who prepared the December 2006 will. On defendant’s motion, the circuit court dismissed the complaint and denied plaintiff’s motion to compel the attorney’s deposition. The appellate court reversed with respect to dismissal of all six counts as well as the refusal to compel the attorney’s deposition.

The Supreme Court affirmed the Appellate Court in all respects. With respect to the lack of testamentary capacity claim, the Court found that the complaint adequately alleged that the plaintiff was the natural object of the testator’s bounty. In addition, because the plaintiff’s statement in the will that he had no children was “completely inconsistent with his life history and prior declarations,” it was sufficient to state a claim. On the second count, the Court agreed that the plaintiff had adequately alleged a presumption of undue influence (which is ultimately decided at trial, at or after the close of plaintiff’s case). The Court noted that the defendant’s power of attorney created a general fiduciary relationship, and the fact that the testator began putting assets amassed over an 84-year period into joint tenancies shortly after the marriage sufficiently suggested undue influence. Although the Court noted that the plaintiff’s tort claims against the defendant would of course fail if his will contest succeeded, the Court held that he had adequately alleged fraudulent inducement and intentional interference with testamentary expectancy, and any dismissal of those claims at the pleading stage would be premature.

The Court held that plaintiff had successfully pled a contract to adopt between the testator and the plaintiff’s mother, supported by plaintiff’s allegations that the testator had hired an attorney to finalize the adoption. The Court found that given that the natural father had permanently abandoned the plaintiff three years after his birth, it was unnecessary for the natural father to be a party to the adoption contract.

Noting that the cause of action had been to some degree foreshadowed by earlier Illinois cases, the Court formally adopted the cause of action for equitable adoption. Following the 2004 California case Estate of Ford v. Ford, the Court declined to require proof of the elements of a contract to adopt in order to plead an equitable adoption. A claim for equitable adoption under Illinois law, the Court found, will require clear and convincing proof of the circumstances of a persistent parent-child relationship, together with “’some direct expression, on the decedent’s part, of an intent to adopt the claimant.”

The Court concluded by affirming the Appellate Court’s decision that plaintiff should have been permitted to depose the attorney who drafted the challenged will. The Court pointed out that attorney-client privilege does not survive the decedent’s death when the attorney prepares and witnesses the decedent’s will, since the decedent would presumably waive the privilege under such circumstances if he or she were still alive in hopes of having his or her true intent carried out. All that was necessary in order to trigger the application of the rule was a prima facie showing that the plaintiff was an heir or next of kin, or a beneficiary of a previous will, in order to establish a right to the attorney’s deposition.