The Appellate Strategist

Too Late: Suing Over the Will

Today in our continuing series of previews for the Illinois Supreme Court, we bring you two cases on the perils of waiting too long: Bjork v. O'Meara and Rodriquez v. Department of Financial and Professional Regulation.

In Bjork [pdf], the plaintiff died, and his will was probated. Plaintiff filed an appearance in the probate proceeding, and sought issuance of citations to discover information and recover property to a certain Trust Company, arguing that she, rather than the estate, was the rightful owner of assets contained in a Trust account. She lost on all counts, and the estate was closed.

So plaintiff sued defendant for tortious interference with a testamentary expectancy, alleging that she had expected to be named pay-on-death beneficiary of the Trust bank account. The defendant cited section 8-1 of the probate Act, which requires that actions to contest the validity of a will must be filed within six months of the admission of the will to probate. 755 ILCS 5/8-1. The Circuit Court agreed and dismissed the suit, and the Appellate Court affirmed.

Bjork involves a traditional conflict of authority. On the one hand, we have Robinson v. First State Bank of Monticello, 97 Ill.2d 174 (1983), which held that an action for tortious interference with testamentary expectancy was governed by the six-month statute of limitations, since it would call into question a probated will. On the other hand, there's In re Estate of Ellis, 236 Ill.2d 45 (2009), where the Court held that the statute of limitations was not implicated, since plaintiff could not have known he was a possible beneficiary of the will until the statute had run, and a successful will contest would not have provided full relief.

But what if the plaintiff had no claim under intestacy law, so that he or she couldn't mount a successful will contest? The Appellate Court held it didn't matter.   The plaintiff clearly knew about the will and her claim, so an action was "available," and even though she had no basis for a will contest, she could and should have brought her tort action while the probate action was pending. Any other result, the Court found, would destabilize wills and estates by allowing the practical invalidation of a will after it emerged from probate.

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