Wills

In re the Estate of Lea J. Erickson, 363 Ill App 3d 279, 841 NE2d 1104, 299 Ill Dec 372 (4th D 2006).

Facts: Charles and Lea Erickson, husband and wife, executed a joint and mutual will providing the entire estate of each to pass to the survivor, "as the survivor's property absolutely" during the survivor's remaining life, then to pass to their children in equal shares upon the death of the surviving spouse. Charles Erickson was the first spouse to die. Five days prior to Lea's death, she conveyed three tracts of land to two of her daughters, Julie Schackmann and Sandra McDougal, and a grandson, Sean Doggett, (hereafter "the defendants") in exchange for $10 from each. After Lea's death, William Erickson, a son of Charles and Lea, filed a complaint seeking the return of the three parcels of real property to the estate, asserting that a joint and mutual will prohibited Lea from distributing property in a manner that would contradict the dispositive scheme of the will.

The trial court agreed with William, reasoning that because the will was joint and mutual, his mother's actions in deeding the property away were improper because they violated the terms of the joint and mutual will. The defendants appealed. The issue on appeal was whether the term "absolutely," found in the phrase "as the survivor's property absolutely," permits Lea to dispose of property belonging to the estate in a way that is in disharmony with the estate planning scheme provided for in the joint and mutual will she and her husband executed prior to the husband's death.

Holding: Affirmed. The term "absolutely" does not give Lea the power to disrupt the scheme provided under a joint and mutual will; therefore, the conveyances are void and the judgment of the circuit court was affirmed. The parties each conceded that the will was joint and mutual, meaning that it was executed jointly by two or more persons with reciprocal provisions and showed on its face that the bequests were made one in consideration of the other. Joint and mutual wills are testamentary as well as contractual, meaning that a joint and mutual will serves as a contract between the testators. As a result, the joint and mutual requires the survivor to dispose of the property as provided under the will and estops the survivor from disposing of the property in any different manner.

Emphasizing the term "absolutely" in describing the gift to the surviving spouse, the defendants argued that Lea was allowed to transfer the property under the will, while William called a construction of this sort an illogical attempt to upset the common dispositive scheme of the will. The court began by acknowledging the settled law that in interpreting a will, it is proper to focus not just on one provision, but to consider the will in its entirety, thus giving effect to the intent of the testator. Accordingly, the court held that the inclusion of the term "absolute" neither gave Lea complete power over the property nor the freedom to disrupt the agreed-upon scheme. As a result, the court said that when a scheme under a will has provided for equal treatment of family, as it did here, it would be illogical to interpret the will as giving the surviving spouse the power to disrupt the settled scheme.

Moreover, the court also noted that permitting Lea to transfer the property in contravention of the scheme provided for in the will would breach the duty of good faith, part of every contract.

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