The Saga Of The Undertaker’s Family – Part 1

Every few years, a case comes along which would make a fabulous law school exam question because of the number of issues and possible results. This is one such story.

Jozef and Helen were married for many years. They had four children: Robert, Irene, Marlene, and Edward. Jozef was a funeral director. In the 1960’s, he bought a mixed-use building in Chicago and opened a funeral chapel on the first floor. He and his family lived in an apartment on the second floor.

For most of his life, Jozef ran the funeral business himself. Helen had her own career and was not involved at all in her husband’s business. Edward also became a funeral director and assisted his father in the business. However, Edward had personal problems which affected his performance. Edward would not handle some aspects of the business as his father wanted, and he was often unreliable. In approximately 1994, there was a blow-up between Jozef and Edward. Edward’s name was taken off the business bank account, and his role in the business thereafter became greatly limited. Jozef would call on Edward only to handle specific funerals, and Edward did so as an independent contractor. As Jozef got older, his own participation in the business diminished. Marlene assisted her father with business recordkeeping, bill paying, and similar matters. The ethnic make-up of the surrounding community also changed, and the business gradually declined. By Fall, 2000, it averaged only two or three funerals per month.

Marlene was the only one of the children who was divorced. In the 1980’s Jozef and Helen purchased a home in the suburbs for Marlene to live in, although they initially kept the title in their own names. During the 1990’s, the health of both Jozef and Helen began to decline. At various times, Jozef and Helen lived with Marlene for periods of time while one or both of them recuperated. Marlene welcomed her parents into her home and took care of them. At least during those years, Helen and Jozef were closer to Marlene and her son than to any of their other children.

In 1994, Jozef and Helen decided to do some “estate planning.” They executed wills naming each other as executor and Marlene as successor executor, providing specific bequests to all of the children and to Marlene’s son, and bequeathing the residue of each estate to Marlene. They also signed powers of attorney for health care and property naming each other as primary agents and naming Marlene as successor agent. At the same time, they changed ownership of the three pieces of real estate that they owned jointly. The home that Marlene lived in and the summer home in Lake Geneva were conveyed from Jozef and Helen to Marlene and Helen as joint tenants. The chapel property was first conveyed from Jozef and Helen to Jozef and then conveyed from Jozef to Jozef and Marlene as joint tenants. Jozef and the business continued to pay all of the expenses for all of the properties, except that Marlene (as she had before) paid for some improvements on the home in which she resided and for its utilities and maintenance.

In November, 2000, the family situation changed suddenly. Jozef developed aspirated pneumonia while he was in the hospital and went into a coma. At virtually the same time, Helen changed dramatically from someone who loved and cared about Marlene to someone who was hostile toward her. Helen moved out of Marlene’s home to live with Irene and Edward for varying periods of time and started playing off her children against each other to get what she wanted.

Jozef had often told Marlene that whenever she was no longer able to run the business, she could close the doors and turn off the telephones. Marlene then did so. With Jozef in a coma and with the business phones turned off, Helen (working with Edward) looked for Jozef’s powers of attorney but could not find them. She did not ask Marlene if she had them. Irene and Edward found an attorney for Helen, and Helen instituted guardianship proceedings to declare Jozef mentally disabled. On request, Marlene turned over to Helen’s attorney all of her parents’ estate planning documents in her possession, including Jozef’s powers of attorney. After Helen’s attorney received them, she prepared a deed to the chapel property from Jozef to Jozef, had Helen execute the deed as attorney-in-fact, recorded the deed with Jozef’s power of attorney for property, and severed the joint tenancy on that property. Helen also severed her joint tenancies with Marlene on the other two properties. Jozef died in January, 2001, before any final order was entered in the guardianship proceeding. Helen opened a decedent’s estate for Jozef and was appointed executor of his estate. On the record, Jozef’s one-half interest in the chapel property was an asset of his estate, and as sole legatee of that estate, Helen would inherit that one-half interest.

Over a period of almost three years after Jozef died, there were six different legal disputes between the parties. Helen sued to partition the property where Marlene resided, and forced the sale of the home. Similar action was taken with regard to the summer home. Jozef’s estate sued Marlene to recover checks that she had written for her own benefit from the business with her father’s permission and to recover the proceeds of sale of Jozef’s car that he had signed over to Marlene. Jozef’s estate also sued Marlene for tortious interference with a business expectancy based upon Marlene’s turning off the business telephones. (It was Edward who wanted the phones turned back on, so that he could operate his father’s business as his own.) The last two cases went through a six-day jury trial with essentially a “split decision.” Helen filed a replevin action to recover three rings that she had given to Marlene years before but which she now claimed had been delivered to Marlene only for safekeeping. While these cases were interesting and each had its own twists and turns, they are summarized here only as background.

The remaining action involved the funeral chapel property. The twists and turns of that litigation will be the subject of the next articles.

©2004 by Cary A. Lind, all rights reserved.