In re Estate of DiMatteo , 2013 IL App (1st) 122948 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Estate of DiMatteo, 2013 IL App (1st) 122948
Appellate Court In re ESTATE OF RICHARD DiMATTEO, Deceased (Thomas Golly,
Caption Petitioner-Appellant, v. Clint Eastman, Individually, and as Independent
Executor of the Estate of Richard DiMatteo, Respondent-Appellee).
District & No. First District, Sixth Division
Docket No. 1-12-2948
Filed August 16, 2013
Held Where petitioner sufficiently pleaded facts that could prove undue
(Note: This syllabus influence and tortious interference with his testamentary expectancy in
constitutes no part of connection with decedent’s execution of a will revoking his prior will
the opinion of the court naming petitioner as the executor of his estate and giving his entire estate
but has been prepared to petitioner and making respondent the executor and recipient of his
by the Reporter of entire estate, the dismissal of petitioner’s will contest was reversed, and
Decisions for the the cause was remanded with leave to allow petitioner to amend his
convenience of the petition to show how he discovered the facts he pleaded on information
reader.)
and belief.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-P-003915; the
Review Hon. John J. Fleming, Judge, presiding.
Judgment Reversed and remanded with instructions.
Counsel on Kevin J. Todd and John C. Lillig, both of Hoogendoorn & Talbot, LLP,
Appeal of Chicago, for appellant.
Donald M. Thompson, of Chicago, for appellee.
Panel JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Lampkin and Justice Hall concurred in the judgment
and opinion.
OPINION
¶1 Two months before he passed away, decedent Richard DiMatteo executed a will naming
respondent Clint Eastman executor of his estate and giving his entire estate to Eastman. This
will revoked a previous will, which named petitioner Thomas Golly executor and gave
DiMatteo’s entire estate to Golly. After Eastman filed a petition to probate DiMatteo’s new
will and request his letters testamentary, Golly filed a petition to contest and invalidate the
will. The petition contained two counts: (1) undue influence; and (2) tortious interference
with testamentary expectancy.
¶2 Eastman filed a motion to dismiss under section 2-615 of the Illinois Code of Civil
Procedure (735 ILCS 5/2-615 (West 2010)), arguing that Golly failed to plead sufficient facts
to state a claim for both counts. The probate division granted Eastman’s section 2-615
motion and dismissed the petition with prejudice. Golly appeals, and for the following
reasons, we reverse.
¶3 BACKGROUND
¶4 Decedent Richard DiMatteo, a resident of Cook County, Illinois, passed away on June
14, 2011. On April 8, 2011, two months before he passed away, DiMatteo executed a will
naming respondent Clint Eastman executor of his estate and “giv[ing] all the rest and residue
of my estate of every kind and character, whether real or personal, wherever situated,
including lapsed legacies, but expressly excluding any property over which I may have power
of appointment at my death” to Eastman (the 2011 will). The 2011 will revoked “all prior
wills and codicils.” DiMatteo had previously executed a will on April 26, 2010 (the 2010
will), which the 2011 will revoked. The 2010 will named petitioner Thomas Golly as
executor and gave “all the rest and residue of my estate of every kind and character, whether
real or personal, wherever situated, including lapsed legacies, but expressly excluding any
property over which I may have power of appointment at my death” to Golly. If Golly did
not survive by 30 days, DiMatteo’s estate would pass to Golly’s grandson, Thomas McIntosh
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Golly. If Golly’s grandson was a minor at the time he inherited DiMatteo’s estate, “payment
[would be] made for the benefit of Golly’s grandson to a custodian under the Uniform Gifts
or Transfers to Minors Act.”
¶5 On June 16, 2011, two days after DiMatteo passed away, Eastman filed a petition to
probate the 2011 will and for the issuance of letters testamentary in the probate division of
the circuit court of Cook County. Eastman attached a list of heirs and legatees, which listed
two of DiMatteo’s cousins as heirs,1 and listed Eastman as a legatee. The list stated that
Eastman was DiMatteo’s friend. On December 12, 2011, Golly filed a petition to contest and
invalidate the will. The petition included two counts: (1) undue influence and (2) tortious
interference with testamentary expectancy. Eastman filed a motion to dismiss the petition
under section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)),
arguing that Golly failed to state a cause of action. On May 1, 2012, the probate division
granted Eastman’s motion without prejudice and gave Golly leave to file an amended
petition. Golly filed an amended petition on May 31, 2012, and it is this petition that serves
as the basis for this appeal.
¶6 I. The Amended Petition
¶7 Golly alleges the following in his amended petition.
¶8 A. The Parties
¶9 DiMatteo lived alone in Riverside, Illinois. DiMatteo never married, had no children, and
was not close with his extended family. DiMatteo passed away after a “precipitous decline
in his health in the last few months of his life.” The petition further alleges that DiMatteo
was suspicious of others and paranoid, and exhibited paranoid characteristics. He did not
develop trust or friendships quickly.
¶ 10 Golly is a farmer residing on his family farm in Winnebago, Minnesota. In the early
2000s, DiMatteo purchased farmland adjacent to Golly’s family farm.
¶ 11 Eastman resides in Winnebago, Minnesota, and worked for Golly as a farmhand.
Eastman is not related to DiMatteo by blood or marriage, and, on information and belief,
Eastman “was, at most, a passing acquaintance of the decedent prior to the sharp decline in
decedent’s health in the last few months of decedent’s life, at or about the time the 2011 Will
was executed.”
¶ 12 B. DiMatteo’s Relationship With Golly
¶ 13 From the time DiMatteo purchased his farm property in Minnesota, Golly rented it from
DiMatteo. During his visits to Minnesota, DiMatteo became friends with Golly and his
family, and often stayed with the Golly family. DiMatteo spent multiple summers in
Minnesota and stayed rent-free in a house occupied by Golly and his family.
1
The list also stated “Unknown heirs.”
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¶ 14 Over the course of the time that DiMatteo spent in Minnesota, he became close with
Golly and his family, and the Gollys treated DiMatteo as a member of their family. DiMatteo
also became close with Golly’s grandson, Thomas McIntosh Golly,2 and DiMatteo frequently
played with Golly’s grandson and gave him gifts. DiMatteo regularly asked Golly and his
family, including Golly’s son Todd Golly, for assistance with various projects and needs.
Some of these needs required traveling from Minnesota to Illinois to assist DiMatteo with
medical issues, including taking DiMatteo to the hospital and to healthcare providers.
¶ 15 At various times, DiMatteo informed Golly that he intended to include Golly in his will
because of their long and close friendship, because of the kindness and assistance Golly and
his family had provided him over the years, and because he was not close with his own
family. In or about April 2010, DiMatteo suffered a stroke. He contacted Golly and requested
that Golly travel from Minnesota to Central DuPage Hospital in Winfield, Illinois, where
DiMatteo was hospitalized. Golly provided DiMatteo with any assistance DiMatteo
requested, including settling DiMatteo in his residence after he was discharged from the
hospital. On or about April 26, 2010, DiMatteo executed the 2010 will, naming Golly as
executor and leaving his entire estate to Golly, or, in the event that Golly did not survive
DiMatteo by 30 days, to Golly’s grandson. Golly had no involvement in the preparation of
the 2010 will, nor did he encourage DiMatteo to include him or any of his family members
in the will. DiMatteo also appointed Golly his agent under a power of attorney for healthcare
decision making. “At some point thereafter,” DiMatteo gave Golly a copy of the 2010 will
and told Golly that he had given him the power of attorney over his healthcare. DiMatteo
informed Golly that he had provided for him because of the close friendship DiMatteo had
with Golly and his family, “who had done so much for him over the years.”
¶ 16 C. Eastman’s Influence on DiMatteo
¶ 17 DiMatteo’s health continued to decline following his April 2010 stroke, and “sharply
declined in the last few months of his life, from March [2011] until his death on June 14,
2011.” The petition further states that, on information and belief, DiMatteo suffered from
additional strokes, which physically weakened him, and suffered from leukemia, which was
in its end stages in March 2011. DiMatteo’s emotional and mental condition and stability
declined along with his physical condition. As a result, the petition concluded that DiMatteo
was “increasingly dependent on others and vulnerable to the influence of others.”
¶ 18 In March 2011, DiMatteo purchased a house in Blue Earth, Minnesota, near Winnebago.
DiMatteo asked Golly to help him move from his Riverside residence to Minnesota, and
Golly agreed to help. Golly had recently undergone knee replacement surgery, so he enlisted
the help of Eastman, one of his farmhands. On March 12, 2011, Golly, his son, and Eastman
drove to DiMatteo’s Riverside residence to pack up his belongings. The petition further
alleges that, on information and belief, prior to this trip, Eastman and DiMatteo had only
been casual acquaintances, having met at Golly’s farm when DiMatteo was residing there
and Eastman was working there.
2
The petition does not state the age of Thomas McIntosh Golly.
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¶ 19 “By March 2011, [DiMatteo] was obviously weakened and depressed and it was clear
that his health was failing and that he was dying. Eastman then began to exploit [DiMatteo’s]
vulnerability and undertook to secure a position of trust and confidence with [DiMatteo].”
Eastman “pursued a course of conduct to undermine the friendship and trust that existed
between [DiMatteo] and [Golly], to make false statements about [Golly] to [DiMatteo], to
cast [Golly] in a disparaging light and to make [Golly] appear to be an unworthy recipient
of [DiMatteo’s] estate,” while simultaneously portraying “himself and his family as victims
of [Golly]’s greed and exploititive [sic] conduct and to insinuate himself into a position of
trust with [DiMatteo]” for the purpose of using his new position of trust to create “an
estrangement and loss of trust between [DiMatteo] and [Golly], and to influence [DiMatteo]
to include Eastman in his will.”
¶ 20 Golly alleges that Eastman made “repeated false statements about [Golly] to [DiMatteo],
calculated to undermine [Golly’s] character and trustworthiness in [DiMatteo’s] eyes,” which
characterized Golly as greedy and Eastman and his family as victims of Golly’s greed. These
statements caused DiMatteo to resent Golly. Eastman intended for these statements to
convince DiMatteo to change his estate plan to benefit Eastman, to the detriment of Golly.
The petition further alleges that, “[o]n information and belief, Eastman’s false statements and
conduct operated on [DiMatteo] at the time he executed the 2011 Will and caused
[DiMatteo] to disinherit [Golly] and to include Eastman in the [2011] will.”
¶ 21 The petition further alleges that, “[o]n information and belief,” Eastman knew of
DiMatteo’s vulnerability and exploited DiMatteo’s paranoia by criticizing Golly, questioning
Golly’s “good faith and trustworthiness,” and challenging Golly’s “worthiness to be a
recipient of [DiMatteo]’s estate” for the purpose of insinuating himself into a position of
trust with DiMatteo. Eastman’s false statements to DiMatteo included assertions that Golly
“did not need the money because he was already successful but that Eastman did need it, and
that [Golly] was refusing to pay Eastman.” These statements were false, as Golly had paid
Eastman in full for all the work Eastman told DiMatteo about, and, “on information and
belief,” Eastman knew these statements to be false.
¶ 22 On or about March 16, 2011, Eastman made inquiries about how to change the will of
someone who already had a will. One person to whom Eastman made these inquiries was
Alberto Rosillo, a local scrap collector. Eastman told him that the person, DiMatteo, whose
will he was planning to have changed was not in good shape and was dying from leukemia,
and that, in his effort to convince the person to change his will, Eastman told him that he
needed money for his family and that his boss, Golly, was not paying him for his work,
creating a hardship for his family. Eastman further told him that he believed that the person,
DiMatteo, was not very competent and that he did not have much time to live.
¶ 23 Eastman’s false statements were intended to cast Golly in a false light in DiMatteo’s eyes
and to undermine the confidence that DiMatteo placed in Golly, causing DiMatteo to believe
that Golly was not a worthy recipient of his estate. The petition further alleges that these
statements were “particularly effective against [DiMatteo] because of [DiMatteo]’s paranoia
and susceptibility to believe the worst about others and, on information and belief, the fact
that such an approach would be successful in light of [DiMatteo’s] paranoia was known to
Eastman.”
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¶ 24 On or about March 26, 2011, DiMatteo came to Minnesota. He was complaining of a
severe headache and pain in his eyes, he could not talk properly, his eyes appeared bloody,
and he was visibly physically weak and mentally diminished. He grew increasingly paranoid
and easily upset. Eastman traveled to DiMatteo’s residence in Blue Earth, Minnesota,
seeking to “prevail upon [DiMatteo] who was in a weakened and vulnerable physical,
emotional and mental condition to revoke his existing will and to prepare a new will that
included Eastman as the beneficiary of [DiMatteo’s] estate.” The petition further alleges that,
on information and belief, Eastman repeated his false statements to DiMatteo for the purpose
of angering DiMatteo and causing him to turn against Golly and remove him from his estate
plan.
¶ 25 “At or about this time, Rosillo asked Eastman how he was able to get [DiMatteo] to
change his will.” Eastman told Rosillo that he informed DiMatteo that Golly was not paying
him for the work he did, that Golly refused to pay Eastman when Eastman asked to be paid,
that Eastman’s family was suffering hardship as a result, and that Golly did not need
DiMatteo’s money, but Eastman did. Eastman then asked Rosillo whether he could “go to
jail for pressuring someone to change their will.”
¶ 26 “At or about this time,” Eastman told Rosillo that he could take down a windmill on
some property for scrap metal and parts and haul away scrap iron at the property. The
property belonged to DiMatteo, but Eastman told Rosillo that the property would belong to
him after DiMatteo died. Rosillo arrived at the property, and shortly thereafter, Eastman and
DiMatteo arrived. DiMatteo looked “pale and weak and fell to the ground as he got out of
[Eastman’s] truck.” DiMatteo inquired as to why Rosillo was on his property and told
Rosillo to leave his property. Eastman “told Rosillo not to tell [DiMatteo] why he was at the
property.” DiMatteo asked Eastman whether he trusted Rosillo, and Eastman responded by
telling DiMatteo that Rosillo was a friend and that he trusted him. “Eastman attempted to
enlist Rosillo in lying to [DiMatteo] about not being paid, and asked Rosillo to tell
[DiMatteo] that [Golly] had not paid Eastman for work Eastman had performed for [Golly]
at [Golly]’s request. Rosillo declined to do so because he did not believe this was true.”
¶ 27 In Rosillo’s presence, Eastman told DiMatteo that Golly had not paid him for work
Eastman performed on Golly’s farm and for work knocking down a trailer, and that this
failure to pay created a hardship for Eastman’s family. Eastman, in Rosillo’s presence, told
DiMatteo that “he was not making it financially” due to Golly’s failure to pay him, and that
he needed to be paid because he had a wife and family to support. DiMatteo became “visibly
very angry at [Golly]” and stated that he had trusted Golly to handle his affairs, but in
response to this information, “he would ‘write-out’ [Golly].” DiMatteo stated that he was
“upset by the news that [Golly] did not pay Eastman and indicated that since [Golly] did not
pay Eastman, he would take care of Eastman and make sure that he got his money.” The
petition further alleges that, on information and belief, Eastman made these false statements
for the purpose of turning DiMatteo against Golly and to induce DiMatteo to remove Golly
from his will and to include Eastman instead, and that Eastman’s false statements and
conduct “operated on [DiMatteo] at the time he executed the 2011 Will and caused
[DiMatteo] to disinherit [Golly] and to include Eastman in the [2011] will.”
¶ 28 On or about April 8, 2011, DiMatteo executed the 2011 will, revoking the 2010 will and
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disinheriting Golly. At no time prior to April 8, 2011, had DiMatteo named Eastman in any
will or other estate planning document, as either a beneficiary or in any fiduciary capacity.
The petition further alleges that, on information and belief, at the time DiMatteo executed
the 2011 will, he was acting under the undue and wrongful influence of Eastman, resulting
from the false statements made to him by Eastman. The petition further alleges that, on
information and belief, as a result of Eastman’s conduct and false statements, Eastman
prevailed upon DiMatteo to place his trust and confidence in Eastman, “thereby creating a
fiduciary relationship and imposing on Eastman the duties of a fiduciary.”
¶ 29 Prior to Eastman’s false statements about Golly, DiMatteo had never expressed anger
with Golly that could explain his complete disinheritance of him. DiMatteo continued to
contact Golly whenever he needed help or when he had health problems. However, “it
appeared that there was some change in [DiMatteo] in that he did not appear to trust [Golly]
to handle his financial affairs as he had previously and, for example, would not let [Golly]
pay [DiMatteo’s] LP gas bill from [DiMatteo’s] funds as he had done previously.” DiMatteo
did not inform Golly that he was changing his estate plan and disinheriting him.
¶ 30 After DiMatteo passed away, “Eastman was heard stating that he had been able to prevail
upon [DiMatteo] to change his will and leave his estate to [Eastman].”
¶ 31 D. Count I–Undue Influence
¶ 32 Golly’s first count in the petition alleges that Eastman unduly influenced DiMatteo to
change his estate plan and revoke the 2010 will. In support, Golly alleges the following facts.
¶ 33 The 2011 will was the result of false statements by Eastman about Golly. Eastman’s false
statements caused DiMatteo to turn against Golly and execute a new will, to the detriment
of Golly and to the benefit of Eastman. DiMatteo was in a vulnerable mental, physical, and
emotional position, and Eastman successfully preyed upon this condition, which created a
fiduciary and confidential relationship between Eastman and DiMatteo. Eastman “insinuated
himself into a position of trust and confidence by, among other things, making repeated false
statements to [DiMatteo] criticizing [Golly] and undermining [Golly]’s merit and
trustworthiness to [DiMatteo] and preying upon sympathy for Eastman through false
statements.”
¶ 34 The petition further alleges that, on information and belief, DiMatteo’s weakened mental,
physical, and emotional condition rendered him increasingly unable to resist Eastman’s
undue influence and unable to discern the falsity of Eastman’s statements regarding Golly.
DiMatteo was “suffering the effects of multiple strokes, the end stages of leukemia, was
taking numerous medications, displayed an increasingly morbid outlook and was expecting
to die very soon, and was increasingly paranoid and suspicious.” The petition further alleges
that, on information and belief, as a result of the “trusting and fiduciary relationship”
between Eastman and DiMatteo, as well as Eastman’s undermining of DiMatteo’s
relationship with Golly, Eastman had the opportunity to, and did, exercise influence over
DiMatteo’s execution of the 2011 will, “such that the free and natural intention of
[DiMatteo] was overwhelmed by the influence of Eastman. As a result, the 2011 Will does
not reflect [DiMatteo’s] independent intentions, but, rather, the intentions of Eastman.”
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Eastman owed a fiduciary obligation to DiMatteo not to use influence over him to benefit
Eastman at Golly’s expense. The petition further alleges that, on information and belief, had
Eastman not subjected DiMatteo to undue influence and false statements of fact, DiMatteo
would not have executed the 2011 will. Eastman’s conduct was “willful, malicious and
manifested a wanton disregard for the rights of [Golly].”
¶ 35 E. Count II–Tortious Interference With Testamentary Expectancy
¶ 36 Golly’s second count alleges that Eastman tortiously interfered with his testamentary
expectancy. In support, Golly alleges the following facts.
¶ 37 “As a natural object of [DiMatteo]’s bounty, [Golly] had an expectancy that he would
receive [DiMatteo]’s estate pursuant to the valid 2010 Will.” DiMatteo expressly stated to
Golly that his intention was to leave his estate to Golly via the 2010 will. DiMatteo “never
disavowed or modified [this intent] except as reflected in the unduly influenced 2011 Will
and in the statements of [DiMatteo] in response to Eastman’s false statements with respect
to [Golly].”
¶ 38 The 2011 will “completely denies” Golly any bequest and instead lists Eastman as the
sole beneficiary of DiMatteo’s estate. The petition further alleges that, on information and
belief, Eastman would not have received any portion of DiMatteo’s estate had he not unduly
influenced DiMatteo.
¶ 39 The petition further alleges that, on information and belief, Eastman knew that DiMatteo
was vulnerable to the undue influence he exerted over DiMatteo, and he used the position
of trust he created to “unfairly and unlawfully undermine the longstanding friendship and
trust that had existed between [DiMatteo] and [Golly].” Eastman’s undue influence upon
DiMatteo “was to the detriment of [Golly], thereby interfering with [Golly]’s testamentary
expectancy.” The petition further alleges that, on information and belief, Eastman made his
false statements to DiMatteo at the time DiMatteo executed the 2011 will, which disinherited
Golly.
¶ 40 Eastman’s conduct constituted “a violation of his confidential and fiduciary relationship
with [DiMatteo] and breached his confidential and fiduciary obligations owed to [DiMatteo].
Such conduct was undertaken for the personal gain of Eastman and for the purpose of
defeating the testamentary expectancy of [Golly].” The petition further alleges that, on
information and belief, Eastman intentionally interfered with Golly’s testamentary
expectancy through exercising undue influence over DiMatteo, abusing a confidential
relationship with him, and breaching fiduciary obligations to him. These actions resulted in
DiMatteo executing the 2011 will, which was not his free act, but instead “constituted
Eastman’s substitution of his own interest and intentions in the place of [DiMatteo’s]
intentions at a time when [DiMatteo] was unable to resist such influence, all to the benefit
of Eastman and to the detriment of [Golly].” The petition further alleges that, on information
and belief, had Eastman not engaged in this wrongful conduct, Golly would have realized his
testamentary expectation pursuant to the 2010 will, and, as a direct and proximate result of
Eastman’s wrongful conduct, Golly was damaged by not “receiving the portion of the estate
that he would have received but for Eastman’s interference,” and, as a result, has been forced
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to incur attorney fees.
¶ 41 II. Eastman’s Section 2-615 Motion to Dismiss
¶ 42 On June 27, 2012, Eastman filed a section 2-615 motion to dismiss the amended petition
for failure to state a cause of action. 735 ILCS 5/2-615 (West 2010). Eastman argues that
Golly failed to allege sufficient facts to support his claims, and instead only pleaded
conclusions. Eastman argues that Golly failed to allege that DiMatteo lacked the requisite
capacity to make a will or that DiMatteo was incompetent. Eastman argues that, although
Golly alleged in his first petition “that after [DiMatteo] died Eastman was heard to say that
he had succeeded in getting [DiMatteo] to change his will,” such a statement is not alleged
in the amended petition.3 Eastman argues that Golly failed to plead sufficient facts to show
that a fiduciary relationship existed between himself and DiMatteo, but instead merely
asserts that such a relationship existed. Eastman further argues that “no facts are alleged to
show why [DiMatteo] would trust Eastman or have confided in him or rely on him for
anything.”
¶ 43 Eastman argues that Golly’s allegation of undue influence was lacking because he failed
to allege “a specific recital of the manner in which the free will of the testator was impaired
at the time the instrument was executed. The mere conclusion that the testator was influenced
by the dominant nature of the disproportionate beneficiary is insufficient.” Eastman argues
that “mere opportunity” to influence someone does not establish undue influence, nor does
“advice and persuasion.” Furthermore, the existence of a fiduciary relationship or a
confidential relationship is not enough to show undue influence; “the relationship must have
been used to procure the will and the will of the testator must be overcome by it.” Eastman
argues that there must be “specific allegations to show how the will of the testator was
overcome.”
¶ 44 Eastman argues that although the amended petition “states that Eastman tried to get
[DiMatteo] to trust him,” the facts of how this was done are not alleged, nor is it specifically
alleged that DiMatteo did trust Eastman, and trust alone would not create a fiduciary
relationship. Therefore, argues Eastman, Golly failed to allege the requisite fiduciary or
confidential relationship. Eastman also states that fiduciaries owe obligations to the other
person in the relationship and indicates that Eastman owed no duties to DiMatteo.
¶ 45 Eastman next argues that, even had Golly sufficiently alleged a fiduciary relationship,
Golly alleges no facts to show how “Eastman’s acts procured the will. Persuasion by a
fiduciary is not enough.” Eastman further argues that “pleading persuasion or lies is not
enough,” and that Golly needed to allege how Eastman’s lies caused DiMatteo to execute a
new will when doing so was not his own intention. Eastman argues that alleging that a
testator believed someone’s lies “does not mean that [the liar’s] will has overcome [the
testator’s].”
3
Paragraph 24 of the amended petition reads as follows: “After decedent’s death, Eastman
was heard stating that he had been able to prevail upon [DiMatteo] to change his will and leave his
estate to him.
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¶ 46 Eastman next argues that Golly failed to allege sufficient facts to state a claim for tortious
interference with a testamentary expectancy. Specifically, Golly “failed to allege any facts
to state a claim for fraud.”
¶ 47 Eastman’s section 2-615 motion also questions the logic underlying some of Golly’s
allegations:
“[Golly] is alleging that [DiMatteo], a paranoid, would trust and believe someone who
was a casual acquaintance 14 days earlier and who had, in [DiMatteo’s] presence, just
told a trespasser [Rosillo, the scrap dealer] not to tell [DiMatteo] why he is there. This,
and by saying [Golly] had not paid him, is how Eastman got a paranoid to trust him. And
of course we are to believe all this because Rosillo, the trespasser, who knows he is
trespassing, says so.”
¶ 48 On September 17, 2012, the probate division granted Eastman’s section 2-615 motion
and dismissed the petition with prejudice. Golly timely appeals.
¶ 49 ANALYSIS
¶ 50 Golly raises three issues on appeal: (1) whether the probate division erred when it granted
Eastman’s section 2-615 motion with prejudice; (2) whether the probate division erred in
ruling that the amended petition failed to state a cause of action for undue influence; and (3)
whether the probate division erred in ruling that the amended petition failed to state a cause
of action for tortious interference with testamentary expectancy.
¶ 51 I. Standard of Review
¶ 52 “In considering a motion to dismiss, we accept as true all well-pleaded facts and draw
all inferences from those facts in favor of the nonmovant.” Lee v. Nationwide Cassel, L.P.,
174 Ill. 2d 540, 545 (1996) (citing Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 473
(1990)). “We will sustain a dismissal for failure to state a claim only if it clearly appears that
no set of facts could be proved under the allegations which would entitle the party to relief.”
Lee, 174 Ill. 2d at 545 (citing Meerbrey, 139 Ill. 2d at 473). Whether a complaint should be
dismissed under a section 2-615 motion presents a question of law, which we review de
novo. Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381, 392 (2008)
(citing Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147-48 (2002)). De novo consideration
means we perform the same analysis that a trial judge would perform. Khan v. BDO
Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 53 II. Section 2-615 Motions
¶ 54 Section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)) states that
“[a]ll objections to pleadings shall be raised by motion. The motion shall point out
specifically the defects complained of, and shall ask for appropriate relief, such as: that a
pleading or portion thereof be stricken because substantially insufficient in law, or that the
action be dismissed ***.” 735 ILCS 5/2-615(a) (West 2010). “If a pleading or a division
thereof is objected to by a motion to dismiss or for judgment or to strike out the pleading,
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because it is substantially insufficient in law, the motion must specify wherein the pleading
or division thereof is insufficient.” 735 ILCS 5/2-615(b) (West 2010).
¶ 55 A motion to strike a complaint as being substantially insufficient in law raises the issue
of whether the complaint states a cause of action. See Janes v. First Federal Savings & Loan
Ass’n of Berwyn, 57 Ill. 2d 398, 406 (1974). Often, we say that a pleading or a portion
thereof is “dismissed.” This is incorrect. Pleadings are stricken in whole or in part; only
actions are dismissed. The dismissal of a complaint cannot be equated with a striking of a
party’s pleading and this distinction is a substantive one which has long been recognized in
Illinois. Bejda v. SGL Industries, Inc., 82 Ill. 2d 322, 328 (1980).
¶ 56 A cause of action should not be dismissed on the pleadings unless it clearly appears that
no set of facts could be proven which would entitle the pleader to relief. Illinois Graphics
Co. v. Nickum, 159 Ill. 2d 469, 488 (1994). For this reason, as a general rule, leave to amend
is freely granted when a pleading has been stricken.
¶ 57 When ruling on a section 2-615 motion, “court[s] must accept as true all well-pleaded
facts, as well as any reasonable inferences that may arise from them.” Patrick Engineering,
Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. However, “a court cannot accept as true a
mere conclusion unsupported by specific facts.” Patrick Engineering, 2012 IL 113148, ¶ 31.
Furthermore, such motions do not admit allegations within the body of a pleading that are
in conflict with the facts contained within an exhibit to that pleading. Outboard Marine
Corp. v. James Chisholm & Sons, Inc., 133 Ill. App. 3d 238, 245 (1985).
¶ 58 A motion to strike or dismiss concedes that all well-pleaded facts, as well as all
reasonable inferences that may be drawn therefrom, in the pleading under attack are true.
Khan v. Deutsche Bank AG, 2012 IL 112219, ¶ 47. Only the well-pleaded facts are taken as
true; conclusions of law or conclusions of fact unsupported by allegations of specific facts
upon which such conclusions rest are not taken as true and are not to be considered by the
court in ruling on the motion. Curtis v. Birch, 114 Ill. App. 3d 127, 129 (1983). A motion to
dismiss should not be granted so long as a good cause of action has been stated even if that
cause of action is not the one that the plaintiff intended to assert. Illinois Graphics Co., 159
Ill. 2d at 488. For example, where the well-pled facts in a complaint support a negligence
theory of liability, a motion to strike the complaint must be denied even though the plaintiff
did not argue that the defendant was negligent but incorrectly argued that the defendant was
strictly liable for the harm caused. Arca v. Colonial Bank & Trust Co. of Chicago, 265 Ill.
App. 3d 498, 502 (1994). No pleading is bad in substance if it sets forth sufficient
information to reasonably inform the opposite party of the nature of the claim or defense
which said party is called upon to meet. 735 ILCS 5/2-612(b) (West 2010). A complaint
should not be stricken and the action dismissed unless the court can conclude that there is
no possible set of facts in support of the allegations in the complaint that would entitle the
plaintiff to relief based on the pleadings themselves. Canel v. Topinka, 212 Ill. 2d 311, 318
(2004); Nickum, 159 Ill. 2d at 488.
¶ 59 III. The Sufficiency of the Amended Petition
¶ 60 Golly argues that the amended petition includes extensive, factually specific allegations
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setting out Eastman’s actions which amounted to undue influence and tortious interference
with a testamentary expectation. In response, Eastman argues that Golly failed to plead
sufficient facts to state his claims and that Golly relied on conclusions rather than facts.
¶ 61 A. Undue Influence
¶ 62 Undue influence necessary to invalidate a will is that influence which prevents the
testator from exercising his own free will in the disposition of his estate. In re Estate of
Maher, 237 Ill. App. 3d 1013, 1017 (1992). Undue influence must be directly connected with
the execution of the instrument, operate at the time it was made, and be directed toward
procuring the will in favor of a particular party or parties. Maher, 237 Ill. App. 3d at 1017.
Our Illinois Supreme Court has defined “undue influence” as follows:
“ ‘[U]ndue influence which will invalidate a will is “ ‘any improper *** urgency of
persuasion whereby the will of a person is over-powered and he is indeed induced to do
or forbear an act which he would not do or would do if left to act freely.’ [Citation.]” To
constitute undue influence, the influence “ ‘must be of such a nature as to destroy the
testator’s freedom concerning the disposition of his estate and render his will that of
another.’ ” [Citations.]
What constitutes undue influence cannot be defined by fixed words and will depend
upon the circumstances of each case. [Citation.] The exercise of undue influence may be
inferred in cases where the power of another has been so exercised upon the mind of the
testator as to have induced him to make a devise or confer a benefit contrary to his
deliberate judgment and reason. [Citation.] Proof of undue influence may be wholly
circumstantial. [Citation.] The influence may be that of a beneficiary or that of a third
person which will be imputed to the beneficiary. [Citations.] False or misleading
representations concerning the character of another may be so connected with the
execution of the will that the allegation that such misrepresentations were made to the
testator may present triable fact questions on the issue of undue influence.’ [Citations.]”
DeHart v. DeHart, 2013 IL 114137, ¶ 27 (quoting In re Estate of Hoover, 155 Ill. 2d 402,
411 (1993)).
DeHart makes clear that there is a difference between alleging a cause of action for undue
influence and alleging a presumption of undue influence. After defining undue influence and
examining the facts of the case, our supreme court found that the “plaintiff has alleged
sufficient facts to state a cause of action.” DeHart, 2013 IL 114137, ¶ 28. In the next
paragraph, the court said the following:
“Additionally, we note that the appellate court also found that [the] plaintiff alleged
sufficient facts to allege a presumption of undue influence. We agree with that
observation. We note, however, that a presumption of undue influence is something that
can only be ultimately determined–at the earliest–after the close of plaintiff’s case. See,
e.g., In re Estate of Glogovesk, 248 Ill. App. 3d 784, 798 (1993). Once the presumption
is established, the defendant would then have the burden to rebut it.” (Emphasis in
original.) DeHart, 2013 IL 114137, ¶ 29.
A presumption of undue influence will arise under certain circumstances. DeHart, 2013 IL
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114137, ¶ 30. One such circumstance is where: (1) a fiduciary relationship exists between
the testator and a person who receives a substantial benefit from the will; (2) a testator who
was in a dependent situation where the beneficiary was in a dominant role; (3) a testator who
placed his trust and confidence in the beneficiary; and (4) a will that was prepared or
executed in circumstances where the beneficiary was instrumental or participated. DeHart,
2013 IL 114137, ¶ 30.
¶ 63 The active agency of the chief beneficiary in procuring a will, especially in the absence
of those having an equal claim on the estate of a testator whose mind is debilitated by age
and illness, is a circumstance indicating the probable exercise of undue influence. Maher,
237 Ill. App. 3d at 1018 (citing Mitchell v. Van Scoyk, 1 Ill. 2d 160, 172 (1953)). “[T]his
presumptive undue influence arises irrespective of the existence of a fiduciary relationship
between the testator and the beneficiary.” Maher, 237 Ill. App. 3d at 1018. See also Schmidt
v. Schwear, 98 Ill. App. 3d 336, 345 (1981); Swenson v. Wintercorn, 92 Ill. App. 2d 88, 101-
02 (1968) (even in the absence of a fiduciary relationship, where one procures the execution
of a will largely benefitting himself to the detriment of others having an equal claim to the
bounty of the testator, who is infirm due to age or illness, a presumption arises that the
beneficiary used undue influence).
¶ 64 In DeHart, the plaintiff filed a complaint contesting the will of his adoptive father and
alleging undue influence in the creation of the contested will. DeHart, 2013 IL 114137, ¶ 1.
The plaintiff alleged that the decedent had previously executed a will naming the plaintiff,
the plaintiff’s sons, and the decedent’s church as beneficiaries. DeHart, 2013 IL 114137, ¶ 7.
The plaintiff further alleged that the decedent married the defendant, who was 29 years
younger than the decedent, within one year of meeting her. DeHart, 2013 IL 114137, ¶ 8. The
plaintiff alleged that after the decedent and the defendant had been married for one year, the
decedent signed a new will, which stated that he “ ‘[has] no children.’ ” DeHart, 2013 IL
114137, ¶ 9. Plaintiff alleged that, in the time between the decedent’s wedding to the
defendant and the decedent signing the new will, the “defendant made several
misrepresentations to [the decedent] concerning plaintiff and his character, each of which
was told to [the decedent] shortly before the execution of the will.” DeHart, 2013 IL 114137,
¶ 11. These misrepresentations included telling the decedent that the plaintiff was not his son,
not telling the decedent that the plaintiff and his family had called the decedent on the
telephone and had sent him cards and letters, and intercepting and destroying these cards,
letters, and telephone calls. DeHart, 2013 IL 114137, ¶ 11.
¶ 65 Our Illinois Supreme Court quoted In re Estate of Hoover, 155 Ill. 2d 402 (1993), to
define “undue influence” and states that “ ‘[f]alse or misleading representations concerning
the character of another may be so connected with the execution of the will that the allegation
that such misrepresentations were made to the testator may present triable fact questions on
the issue of undue influence.’ ” DeHart, 2013 IL 114137, ¶ 27 (quoting Hoover, 155 Ill. 2dat 411-12). The DeHart court characterized the Hoover case as concerning a “ ‘subtle,
invidious kind of undue influence’ in which the testator’s will was overborne by a series of
misrepresentations by the defendant about the plaintiff’s character.” DeHart, 2013 IL
114137, ¶ 27 (quoting Hoover, 155 Ill. 2d at 413). In such a case, “the testator may act as if
directed and guided by his own agency but that agency may have been overpowered by
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‘secret influences.’ ” DeHart, 2013 IL 114137, ¶ 27 (quoting Hoover, 155 Ill. 2d at 414).
Plaintiffs may introduce circumstantial evidence to demonstrate that the influence was
connected with and operative at the time of the execution of the will and that the influence
was directed toward procuring the will in favor of the beneficiary. DeHart, 2013 IL 114137,
¶ 27 (citing Hoover, 155 Ill. 2d at 414).
¶ 66 Our supreme court analogized the facts before it to Hoover, finding that in both cases,
the plaintiff alleged that he had a close relationship with the decedent and that the decedent
disinherited the plaintiff shortly after the defendant made the misrepresentations. DeHart,
2013 IL 114137, ¶¶ 27-28. The court determined that the plaintiff had alleged sufficient facts
to survive a section 2-615 motion to dismiss and state a cause of action for undue influence.
DeHart, 2013 IL 114137, ¶ 28.
¶ 67 DeHart is instructive to the facts of the case at bar. Golly alleges that he shared a close
relationship with DiMatteo for many years and that DiMatteo planned to leave his estate to
Golly. Golly alleges that Eastman made false statements of fact concerning Golly’s character
to DiMatteo and that shortly after Eastman made these statements, DiMatteo executed a new
will, naming Eastman as the sole beneficiary.
¶ 68 Eastman argues that DeHart, Hoover, and Sterling v. Kramer, 15 Ill. App. 2d 230 (1957),
all of which concern defendants making false statements of fact regarding the plaintiffs to
the decedents, are distinguishable. Eastman argues that although these cases allow plaintiffs
to allege that the will of the testator was overcome through circumstantial evidence, Golly
failed to allege sufficient facts to show circumstantial evidence of how Eastman unduly
influenced DiMatteo to create the 2011 will. DeHart, 2013 IL 114137, ¶ 27; Hoover, 155 Ill.
2d at 414. Eastman also argues that, unlike in DeHart, Hoover, and Sterling, in which the
plaintiffs were family members of the decedents, Golly was not related to DiMatteo. Eastman
argues that Golly alleges two false statements to DiMatteo and, thus, did not make a “series
of different misrepresentations” as is required by DeHart, Hoover, and Sterling. Eastman
further distinguished DeHart by arguing that the defendant in DeHart had power of attorney
over the decedent and, thus, was in a fiduciary relationship with the defendant by law.
DeHart, 2013 IL 114137, ¶¶ 10, 31.
¶ 69 We do not find these arguments persuasive. Although DeHart, Hoover, and Sterling all
had plaintiffs who were related to the decedents, none of the decisions ever stated that
familial relationships were a factor in the analysis. Eastman argues that Golly failed to allege
“how [Eastman] was able to substitute his will for [DiMatteo’s] in just a few weeks,”4 and
states that he, “like anyone else, was entitled to ask [DiMatteo] for his money. Asking
someone to make a will in your favor is not undue influence.” See Thompson v. Bennett, 194
Ill. 57, 65 (1901). This argument ignores the fact that the petition alleges that Eastman made
4
Throughout Eastman’s argument, he makes statements challenging the truth of the facts
alleged in the petition, such as here when he indicates that the time span in which he acted was too
short to impose his will upon DiMatteo. When reviewing a section 2-615 motion to dismiss, we must
take all well-pleaded facts as true. Khan, 2012 IL 112219, ¶ 47. Therefore, we shall ignore all of
Eastman’s arguments that challenge the truth of the facts alleged.
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statements inquiring how to convince someone to change his will and whether he could “go
to jail for pressuring someone to change their will.” This shows that Eastman was aware that
any requests he made of DiMatteo to change his will involved wrongdoing, because we must
take this allegation as true for the purpose of the section 2-615 motion. Furthermore, the
petition does allege how, over time, Eastman convinced DiMatteo to change his will by
giving his estate to Eastman instead of Golly. In Hoover, the defendants argued that the
plaintiffs failed to provide evidence5 that the defendants’ influence was directly connected
with the execution of the codicils that disinherited the plaintiffs or that any influence
defendants exerted was directed toward procuring a will in their favor. Hoover, 155 Ill. 2dat 413. Our supreme court found the defendants’ argument “misguided.” Hoover, 155 Ill. 2dat 413. The complaint in Hoover alleged that the decedent’s will was “overbourne by a series
of misrepresentations about [the plaintiff’s] character.” Hoover, 155 Ill. 2d at 413.
¶ 70 “In essence, the complaint alleges that these misrepresentations were internalized by [the
decedent] and prompted him to act in accordance with the influencer’s intent rather than his
own original intent.” Hoover, 155 Ill. 2d at 413-14. “Under these circumstances, the testator
may act as if directed and guided by his own agency but that agency may have been
overpowered by ‘secret influences.’ ” Hoover, 155 Ill. 2d at 414 (citing Sterling, 15 Ill. App.
2d at 237).
¶ 71 In the case at bar, Golly alleges facts indicating that DiMatteo was susceptible to
misrepresentations and that Eastman made misrepresentations concerning Golly’s character.
Golly alleges that Eastman told DiMatteo that Golly was greedy and refused to pay Eastman
monies owed to him for work performed. Golly alleges that Eastman also stated that Golly
did not need DiMatteo’s money because he was already successful, but Eastman did need
DiMatteo’s money because he was unable to support his family as a result of Golly not
paying him for work performed. Golly alleges that Eastman attempted to enlist Rosillo, the
scrap dealer, to agree to the false statements that Golly had not paid Eastman for work
performed, and, as a result, Eastman and his family were suffering financial hardship, but
Rosillo refused. Golly alleges that, in response to these misrepresentations, DiMatteo became
“visibly very angry at [Golly]” and said that he would “write-out [Golly].” Like in Hoover,
the allegations in Golly’s petition lead to the logical inference that DiMatteo internalized
these misrepresentations and prompted him to act in accordance with Eastman’s intent, rather
than his own. Hoover, 155 Ill. 2d at 413-14. Eastman cites no authority to argue how many
misrepresentations are required to create a “series of misrepresentations,” and neither DeHart
nor Hoover nor Sterling bases its decision on how many misrepresentations were made.
¶ 72 Eastman cites In re Estate of Sutera, 199 Ill. App. 3d 531 (1990), and In re Estate of
Julian, 227 Ill. App. 3d 369, 375 (1991), to argue that the facts of this case are
distinguishable from DeHart, Hoover, and Sterling. In Sutera, the petition alleged that the
decedent was homosexual, that the respondent “ ‘threatened to expose the [decedent] unless
he agreed [sic] to do whatever [the] respondent *** wished,’ ” and that the “ ‘domination and
5
Unlike the case at bar, Hoover decided whether the trial court improperly granted summary
judgment to the defendant on the issue of undue influence. Hoover, 155 Ill. 2d at 408.
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intimidation by said respondent was complete and exclusive resulting in the [decedent] being
totally without any free will of his own.’ ” Sutera, 199 Ill. App. 3d at 535. The court
distinguished Sterling, holding that the petition did not included the “detailed allegations of
a conspiracy” alleged in Sterling, and instead failed to allege how the threat of exposure
overcame the decedent’s free will. Sutera, 199 Ill. App. 3d at 538. In Julian, the petition
alleged that the beneficiary, who was the decedent’s son, managed the decedent’s business
when the decedent was no longer healthy enough to do so himself. Julian, 227 Ill. App. 3d
at 374. As a result, the beneficiary was the decedent’s main source of income. Julian, 227
Ill. App. 3d at 374. The petition then alleged that the beneficiary overcame the decedent’s
will by making “repeated threats and demands that unless [the] decedent gave [the
beneficiary] control over the business and assured that [the beneficiary] would retain control
by transferring ownership of the business to [the beneficiary] by contract or will,” the
beneficiary would terminate his employment with the business. Julian, 227 Ill. App. 3d at
374-75. The court stated that, although the petitioners “come[ ] closer [than the Sutera
petitioner] to specifically alleging the manner in which the alleged influence operated to
overcome the free will of the [decedent],” they failed to allege undue influence with the
requisite specificity required to survive a motion to dismiss. Julian, 227 Ill. App. 3d at 376-
77.
¶ 73 We find both cases distinguishable. Unlike the case at bar, which included the alleged
false statements made by Eastman to DiMatteo, the manner in which those statements
operated on DiMatteo to overcome his will, and the allegation that DiMatteo stated that he
would “write-out” Golly as a result of the false statements, the petitions in Sutera and Julian
fail to allege how the threats operated to overcome the decedents’ will. Furthermore, the
court in Julian states that the petition failed to allege that the beneficiary directly participated
in the procurement or the execution of the will. Julian, 227 Ill. App. 3d at 377. Golly alleges
that Eastman directly participated in the procurement or execution of the 2011 will:
“Eastman repeated the false claim that [Golly’s] failure to pay him created a hardship for
his family, that he was not making it financially due to [Golly’s] failure to pay [Eastman]
for his work and that he needed to be paid because he had a wife and family to support.
In response, [DiMatteo] got visibly very angry at [Golly] for not paying Eastman and
stated that he had trusted [Golly] to handle his affairs and that (in response to this
information) he would ‘write-out’ [Golly]. [DiMatteo] stated that he was upset by the
news that [Golly] did not pay Eastman and indicated that since [Golly] did not pay
Eastman, he would take care of Eastman and make sure he got his money.”
See Sterling, 15 Ill. App. 2d at 237 (stating that “[w]here the defendant plays an active role
in procuring the execution of a will it is not essential to show that he was present at the
signing of the instrument in order to invalidate the will on the ground of undue influence”).
The Julian court also indicated that misrepresentations, which were present in Sterling and
alleged in the case at bar, are more likely to state a cause of action for undue influence than
threats, which were present in Sutera and Julian. The Julian court stated that Sutera
distinguished Sterling by pointing to the allegation of a conspiracy to misrepresent facts to
the decedent. Julian, 227 Ill. App. 3d at 377 (citing Sutera, 199 Ill. App. 3d at 538). The
Julian court then stated that “[i]n this case, as in Sutera, there are no such allegations of
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misrepresentation.” Julian, 227 Ill. App. 3d at 377.
¶ 74 Eastman cites three cases to argue that Golly failed to allege facts to “show that Eastman
had anything to do with preparation or the execution of [DiMatteo’s] will.” In Swenson v.
Wintercorn, 92 Ill. App. 2d 88 (1968), the defendants were present when the decedent signed
her will. Swenson, 92 Ill. App. 2d at 101. In Smith v. Henline, 174 Ill. 184 (1898), the
beneficiaries of the contested will were present when it was executed. Smith, 174 Ill. at 196.
In Cheney v. Goldy, 225 Ill. 394 (1907), the beneficiary held the decedent’s arm to assist him
in signing the contested will. Cheney, 225 Ill. at 398. Such activity is relevant to determining
whether there was undue influence, but its absence is not fatal to a petition. In fact, Sterling
states that “[w]here the defendant plays an active role in procuring the execution of a will it
is not essential to show that he was present at the signing of the instrument in order to
invalidate the will on the ground of undue influence.” Sterling, 15 Ill. App. 2d at 237.
¶ 75 Eastman next argues that “[r]egardless of whether or not a fiduciary relationship is
required to show undue influence, [Golly] rests his pleading on a breach of fiduciary duty,”
and Golly failed to allege the existence of a fiduciary relationship. This argument is not
persuasive. A motion to dismiss should not be granted so long as a good cause of action has
been stated even if that cause of action is not the one that the plaintiff intended to assert.
Illinois Graphics Co., 159 Ill. 2d at 488. Golly has alleged sufficient facts to state a claim of
undue influence.
¶ 76 B. Tortious Interference
¶ 77 To state a cause of action of tortious interference with a testamentary expectation,
plaintiffs must allege sufficient facts to indicate the following: “(1) the existence of his
expectancy; (2) defendant’s intentional interference therewith; (3) tortious conduct such as
undue influence, fraud, or duress; (4) a reasonable certainty that the expectancy would have
been realized but for the interference; and (5) damages.” (Emphasis added.) DeHart, 2013
IL 114137, ¶ 39. “A will contest is distinct from a tort action for intentional interference with
[a] testamentary expectancy.” DeHart, 2013 IL 114137, ¶ 39. “One who, by fraud, duress,
or other tortious means intentionally prevents another from receiving from a third person an
inheritance or gift that he otherwise would have received is subject to liability to the other
for the loss.” (Emphasis added.) DeHart, 2013 IL 114137, ¶ 39. “The remedy is not setting
aside of the will, but a judgment against the individual defendant, which would include
money damages in the amount of the benefit tortiously acquired.” DeHart, 2013 IL 114137,
¶ 39.
¶ 78 According to DeHart, the element of damages in a tortious interference claim cannot be
known until the will contest has been resolved. DeHart, 2013 IL 114137, ¶ 40. If Golly were
to succeed on the undue influence claim, the will would be set aside, and his tortious
interference count would be set aside “because the adequacy of the probate relief would be
undisputed and there would therefore be no damages in tort.” DeHart, 2013 IL 114137, ¶ 41.
If Golly were not to succeed on the undue influence claim, he could proceed against Eastman
on the tortious interference claim in the same court. DeHart, 2013 IL 114137, ¶ 41.
¶ 79 Eastman argues that Golly failed to plead that he knew of the previous will, and thus he
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could not have intentionally interfered with the will, and that the petition includes “no
allegations that support a finding of tortious conduct.” We do not find his argument
persuasive.
¶ 80 The allegation that a prior will existed is a sufficient allegation of an expectancy. DeHart
v. DeHart, 2012 IL App (3d) 090773, ¶ 33, aff’d, 2013 IL 114137, ¶¶ 39-41.6 Golly alleges
that the 2010 will named him as beneficiary and has thus satisfied the first element of
tortious interference with a testamentary expectancy. Eastman argues that Golly does not
explicitly state that Eastman knew of the 2010 will and that, therefore, Golly failed to allege
that Eastman intended to interfere with Golly’s expectancy. However, Golly alleges that
Eastman inquired how to change the will of a person who already had a will and that, after
DiMatteo died, Eastman stated that he had succeeded in convincing DiMatteo to change his
will. From these allegations, which we must accept as true at this point in the proceedings,
we can infer that because Eastman referred to “changing” a will, both prior to and after
DiMatteo executed the 2011 will, he must have known that the 2010 will existed. As we
have stated above, Golly has alleged that Eastman unduly influenced DiMatteo to execute
the 2011 will, and thus, Golly has satisfied the third element of pleading a cause of action for
tortious interference. DeHart, 2013 IL 114137, ¶ 39 (tortious conduct includes undue
influence, fraud, and duress). Finally, Golly alleges that DiMatteo expressly stated to Golly
that his intention was to leave his estate to Golly via the 2010 will and that DiMatteo “never
disavowed or modified [this intent] except as reflected in the unduly influenced 2011 Will
and in the statements of [DiMatteo] in response to Eastman’s false statements with respect
to [Golly].” Therefore, Golly has alleged that he reasonably would have remained DiMatteo’s
beneficiary but for Eastman’s interference.
¶ 81 Golly has therefore sufficiently alleged the first four elements of a cause of action for
tortious interference with a testamentary expectation. The fifth, damages, “can only be
known if it exists after the resolution of” the will contest. DeHart, 2013 IL 114137, ¶ 40.
¶ 82 C. Information and Belief
¶ 83 Golly’s complaint repeatedly alleges facts based on “information and belief.” In some
cases, certain relevant facts of a cause of action will not be known to the plaintiff. “Where
facts of necessity are within defendant’s knowledge and not within plaintiff’s knowledge, a
complaint which is as complete as the nature of the case allows is sufficient.” Yuretich v.
Sole, 259 Ill. App. 3d 311, 313 (1994). At times, plaintiffs “may be forced to present
allegations of express authority upon information and belief.” Patrick Engineering, Inc. v.
City of Naperville, 2012 IL 113148, ¶ 40. “ ‘[A]n allegation made on information and belief
is not equivalent to an allegation of relevant fact’ [citation], but at the pleading stage a
6
The Illinois Supreme Court affirmed the appellate court’s finding that the DeHart plaintiff
sufficiently alleged a cause of action for tortious interference with a testamentary expectancy.
DeHart, 2013 IL 114137, ¶ 40. However, the supreme court did not provide the reasoning for doing
so that was present in the appellate court decision. Therefore, we cite to the appellate court case to
provide an explanation as to how the plaintiff adequately alleged a cause of action.
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plaintiff will not have the benefit of discovery tools” to discern facts hidden from the
plaintiff. Patrick Engineering, 2012 IL 113148, ¶ 40 (quoting Whitley v. Frazier, 21 Ill. 2d
292, 294 (1961) (holding that, in an equitable estoppel action against a municipality, before
discovery, plaintiffs will not have access to information about the municipality’s
“bureaucratic hierarchy”). The plaintiff will have knowledge of what he did to learn the facts
that he alleges on information and belief, and should allege any efforts taken to discover
those facts. Patrick Engineering, 2012 IL 113148, ¶ 40.
¶ 84 Golly failed to allege how he discovered the facts that he alleges upon information and
belief. Thus, these allegations are not the equivalent of allegations of relevant facts. Patrick
Engineering, 2012 IL 113148, ¶ 40 (citing Whitley, 21 Ill. 2d at 292). However, a cause of
action should not be dismissed on the pleadings unless it clearly appears that no set of facts
could be proven which would entitle the pleader to relief. Illinois Graphics Co., 159 Ill. 2d
at 488. For this reason, as a general rule, leave to amend is freely granted when a pleading
has been stricken. We therefore reverse the probate division’s order dismissing the petition
with prejudice and order that Golly be given leave to file an amended petition, alleging how
he discovered the facts he pleads on information and belief.
¶ 85 CONCLUSION
¶ 86 For the above reasons, we reverse the probate division’s order, and order that it grant
Golly leave to file an amended petition. Golly has sufficiently pleaded a set of facts that
could prove undue influence and tortious interference with a testamentary expectancy.
¶ 87 Reversed and remanded with instructions.
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