The Appellate Strategist
Is a Tort Suit Against the Executor a "Will Challenge" For Purposes of the Statute of Limitations?
We conclude our previews of the civil cases on the Illinois Supreme Court's November term oral argument docket with Bjork v. O'Meara, a case about traps for the unwary in challenges to the disposition of a decedent's property. We previewed Bjork just after review was granted here.
Here's the problem the Court faces in Bjork. Every state agrees that there is a strong public interest in distributing property pursuant to an estate as quickly as possible. But does that principle apply only to "frontal attack" will contests? What about tort claims for interference with a testamentary expectancy?
The decedent in Bjork passed away in early 2009. Plaintiff filed petitions for issuance of citations to discover information and recover property, arguing that assets in a bank account belonged to her, not the estate. The petitions were granted, and plaintiff received discovery. Next, the plaintiff filed a petition for leave to depose a bank officer, but that was denied. Subsequently, the estate was wound up and closed.
Six months after the estate closed -- twenty months after the decedent's death -- the plaintiff sued the executor of the estate for tortious interference with testamentary expectancy, alleging that she should have received the bank account and charging the executor with fraud, undue influence, misrepresentation, and assorted other wrongdoing. The executor moved to dismiss, arguing that the action was barred by the six month statute of limitations in the Probate Act on will challenges. (755 ILCS 5/8-1) The plaintiff responded that she was stating a tort claim, not challenging the will, but the Circuit Court dismissed.
Like many cases which reach the Supreme Court, Bjork will play out in the boundary between two earlier cases. In Robinson v. First State Bank of Monticello, the Supreme Court held that when an estate is closed, the will has been established as valid. If a tort claim is based on the proposition that the will is not valid, then it must be filed within the six month statute of limitations, or the claim is barred, regardless of how it's pled. On the other hand, there was In re Estate of Ellis, where the Court had held a tort claim was not barred, since the plaintiff hospital had not been aware of its interest in a previous will until long after the final will was probated. Further, the Court noted that the plaintiff could not have recovered lifetime gifts to the defendant -- sought in the tort suit -- through a will contest.
Ultimately, the Appellate Court in Bjork affirmed the Circuit Court's dismissal. The Court agreed that the plaintiff could not have received complete relief in a will contest, since she had no claim in intestacy to the bank account at issue. Nevertheless, the Court held that since plaintiff's tort action challenged the property disposition in the will, it should have been filed in conjunction with the estate proceeding, within the six month state of limitations.
Bjork will be argued during the 9:00 a.m. session of the Illinois Supreme Court on Tuesday, November 20.