Our reports on the civil oral arguments of the Illinois Supreme Court’s November term continue with Bjork v. O’Meara. Our pre-argument preview of Bjork is here. Watch the oral argument here.

Before his death, decedent begins taking steps to transfer a bank account to the plaintiff. He dies before the process is completed. The plaintiff intervenes in the will contest, but discovery shows that the bank account was never transferred, and the plaintiff loses her challenge. Later the plaintiff files a suit against the executor for tortious interference with testamentary capacity. Is the suit barred by the six-month statute of limitations on will contests?

That’s the question in Bjork. Before the Circuit Court, the plaintiff insisted that she was stating a tort claim against the executor, not challenging the will. The Circuit Court dismissed anyway. The Appellate Court affirmed, holding that although the plaintiff couldn’t have received complete relief in a will contest, she could have filed her claim in Probate Court in conjunction with the will proceeding.

Based upon the oral argument, the Supreme Court may reverse. The plaintiff began by making it clear that before the decedent’s death, he had begun the process of transferring the bank account. Justice Garman asked whether the plaintiff had tried to prove interference with testamentary capacity in the Probate Court, or just that the account was not in the estate. Counsel responded that at the time of filing her petition to return property, plaintiff had believed that the transfer of the bank account was complete, only discovering otherwise in discovery. Justice Freeman asked whether plaintiff’s allegations of fraud or undue influence would invalidate the will. Counsel responded that such allegations could invalidate the will in other cases, but the plaintiff’s claim had nothing to do with the will. Justice Burke asked whether plaintiff had standing in the Probate Court after her petition was denied, and counsel responded that she did not, listing a variety of distinctions between a will contest and a suit at law for tortious interference. Justice Theis confirmed that the Probate Court had granted the executor’s motion to dismiss the plaintiff, and asked whether at that point, there was nowhere for plaintiff to go but appeal. Counsel agreed that his client’s only remaining choices at that point were appeal or filing the separate lawsuit. Justice Burke asked whether the plaintiff was merely seeking a personal judgment against the executor, and counsel confirmed this: plaintiff was seeking nothing from the estate. Counsel argued that affirmance of the Appellate Court’s opinion would essentially allow a fiduciary to wash fraud through the Probate Act.

Counsel for the defendant faced a hotter bench than had the plaintiff. Justice Burke asked how a will contest could have worked for the plaintiff, since she had no standing. Counsel responded that plaintiff did, in fact, had standing as an interested party under the will — plaintiff’s petition for return of property from the estate was clearly an attack on the will. Justice Thomas pointed to the conflict we discussed in our pre-argument preview between Robinson v. First State Bank of Monticello and In re Estate of Ellis, asking counsel about the Ellis court’s comment that Robinson was limited to situations where the plaintiff had deliberately chosen not to prosecute an available challenge in Probate Court. Counsel argued that the plaintiff had, in fact, appeared in Probate Court, so the Ellis situation didn’t apply. Justice Thomas followed up, asking whether the plaintiff had had the opportunity to contest the will but had chosen not to do so.  Counsel responded that the defendant believed that the Probate Court’s holding that the plaintiff lacked standing to proceed was wrong. Justice Theis asked what relief plaintiff could have gotten in Probate Court. Counsel responded that plaintiff could have filed her tortious interference claim in that Court. Justice Burke pointed out that a tortious interference claim was brought against an individual, not the estate, and wondered why such a claim didn’t fall outside the Probate Act. Counsel responded that the claim was still within the jurisdiction of the Probate Court. Justice Theis sought to clarify the series of events at the Probate Court — when did the Probate Court find that it lacked jurisdiction? Counsel responded that the court had so held on the plaintiff’s motion for reconsideration after her petition was denied. Chief Justice Kilbride asked counsel whether a claim for tortious interference was directed against the estate. Counsel responded that once the Probate Court acquired jurisdiction, it had jurisdiction over all related claims, whether they were, strictly speaking, directly against the estate or not. Justice Thomas asked counsel whether he could cite authority for the proposition that plaintiff had to pursue an appeal after being dismissed at the Probate Court, and counsel cited Robinson and Ellis. Justice Garman asked whether the plaintiff could have filed a complaint in the Law Department while probate was still pending. Counsel responded that no, plaintiff was required to pursue the action in Probate Court, including through an appeal.

When the plaintiff returned to the lectern for rebuttal, the Chief Justice asked counsel what he had filed in probate. Counsel responded that he had filed a petition to return property, and later a citation to discover information. When discovery showed that the transfer of the bank account had not been completed, counsel tried to depose a bank employee; but the Probate Court had denied permission, and the tort claim followed.

Bjork should be decided in the next three to six months.