Will Contests – Part 2

The Deadly Trap Of “Election.”

The doctrine of election can kill any chance of a will contest before the client or attorney even knows it is gone. The basic law is as follows:

Both parties recognize the general equitable doctrine of election. Under that doctrine, one cannot simultaneously accept benefits conferred by a will while setting up claims contrary to the terms of the document itself. Rather, one accepts or rejects the instrument in its entirety, and cannot pick and choose those clauses one finds most advantageous. (Wilbanks v. Wilbanks (1856), 18 Ill. 17; Remillard v. Remillard (1955), 6 Ill.2d 567, 129 N.E.2d 744; Kyker v. Kyker (1983), 117 Ill.App.3d 547, 72 Ill.Dec. 803, 453 N.E.2d 108.) The result of this rule is that once a beneficiary under a will has accepted a benefit granted by the will, he will be estopped from asserting any claim contrary to the validity of the will.

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The doctrine of election, however, is not absolute and is subject to exception. Two such exceptions have been recognized in Illinois. Under the first exception, it is well-established that one may take under a will and still be free to challenge any provisions of the will which are contrary to law or public policy. (Chaney v. Baker (1922), 302 Ill. 481, 484 125 N.E. 14; In Re Estate of Gerbing (1974) 22 Ill.App.3d 454, 458, 318 N.E.2d 117, aff’d in part and rev’d in part on other grounds, and remanded, 61 Ill.2d 503, 337 N.E.2d 29). Additionally, acceptance of a bequest under a will must have been made with full knowledge of the facts and circumstances surrounding the execution of the will, and acceptance of the benefit must not have been procured by fraud or mistake. Where acceptance is fraudulently induced, of where acceptance has been made based on ignorance of material facts, such acceptance will not function to preclude a beneficiary from challenging the will. (Kyker v. Kyker (1983), 117 Ill.App.3d 547, 72 Ill.Dec. 803, 453 N.E.2d 108.)

Estate of Joffe, 143 Ill.App.3d 438, 493 N.E.2d 70, 97 Ill.Dec. 588 (Ill.App. 1 Dist. 1986)

In Joffe, the decedent left specific bequests of $2,500.00 to each of five grandchildren. Those bequests were sent to the grandchildren, and the payments were accepted. After they were accepted, the grandchildren learned that under the decedent’s prior wills, they and their mother, whose interest they would ultimately succeed to, would have received much more and that their father was instrumental in obtaining the changes in the last will. Two of the grandchildren (the petitioners) filed a will contest. The Estate answered and filed a motion to dismiss on the basis of election. At about the same time, the petitioners tendered their bequests back to the estate, and the estate refused to accept the checks. The trial court dismissed the will contest and the Appellate Court affirmed the dismissal. The Appellate Court initially noted the issue of whether petitioners clearly knew at the time that checks were accepted by petitioners of their rights under the prior wills. However, the court focused on their knowledge at the time the will contest was filed. At that time, the petitioners knew of their rights. However, the petitioners did not return the bequests and did not even attempt to do for at least one month after they filed their will contest. The court said that they should have returned the money prior to filing the will contest and that their failure to do so doomed the contest. The dismissal was upheld.

In Kyker v. Kyker, 117 Ill.App.3d 547, 453 N.E.2d 108, 72 Ill.Dec. 803 (Ill.App. 2 Dist. 1983), the executor sent the petitioner a $500.00 bequest. The petitioner later filed a will contest. An answer was filed denying the allegations of the petition. The check was then cashed by the petitioner more than three months after the will contest was filed. After the check was cashed, the executor moved to withdraw his answer and to file a motion to dismiss based upon the doctrine of election. Both motions were granted. Approximately one month later, the petitioner moved to tender back the bequest to the estate. The trial court denied the motion. The Appellate Court said that despite any purported lack of prejudice to the estate, the petitioner was bound by the election, and the dismissal was affirmed.

In Estate of King, 245 Ill.App.3rd 1088, 614 N.E.2d 1348, 185 Ill.Dec. 663 (Ill.App. 5 Dist. 1993), the specific bequest consisted of tangible personal property of the estate. The five plaintiffs agreed to the disposition and received their shares. The plaintiffs subsequently filed a will contest. Approximately four months after the filing, one of the defendant’s attorneys wrote plaintiffs and informed the attorney that the will contest could not be maintained because of the doctrine of election, citing Joffe and Kyker. Plaintiffs did not respond to the letter and subsequently filed an amended petition and a second amended petition. The estate filed a motion to dismiss. Plaintiffs raised a number of arguments, including the claim that they would have received the items they received regardless of the outcome of the will contest, lack of prejudice to the estate, and lack of full knowledge of their rights at the time of the distribution of the personal property. Plaintiffs also offered to return the personal property. The petition was dismissed, and the dismissal was upheld on appeal. The Appellate Court found that the value of the benefit received was irrelevant. The crux of the doctrine of election is equitable estoppel, the taking of inconsistent positions by challenging a will and at the same time accepting benefits under the will. The court held that the election was “made” at the time the will contest was filed.

As if the loss in King was not bad enough, the estate petitioned for fees and costs against the plaintiffs because they had proceeded with the will contest after being advised by the attorney’s letter that they could not successfully proceed as a matter of law. The trial court denied the request for fees. The Appellate Court upheld the ruling of the trial court based upon a purported bona fide issue of fact. It is my opinion that the plaintiffs’ attorney dodged a serious bullet and that the Court would have been fully justified in imposing attorney’s fees against the plaintiffs and their attorney for all time spent after the letter was sent which spelled out the law.

Practical Considerations: The lessons and conclusions to be derived from the foregoing cases are easy. The law is clear.

  1. If a party accepts any benefit under a will and does not return it prior to filing a will contest, the party will be barred from proceeding unless he can successfully argue fraud or concealment or some violation of public policy.
  2. It is incumbent on the attorney for a plaintiff to ask prior to filing a will contest if the plaintiff received anything from the estate. Failure to do so can lead to dismissal at best and an award of fees against the attorney and/or the client at worst.
  3. If an attorney represents an estate, the attorney should determine if any benefits were paid prior to doing any other work on the matter. If so, the first step should be to do as the attorney did in King, namely, to write to the attorney for the contestant and advise that attorney that he or she has a losing case and that the action must be dismissed at once. Upon any failure to do so, the estate should then move to dismiss the will contest and should seek sanctions against the attorney for proceeding with the case.
  4. If an attorney fails or refuses to do any of the foregoing, it is time to notify the malpractice carrier.

©2005 by Cary A. Lind, all rights reserved.