Appellate Law

No Standing To Appeal Order Allowing Estate To Re-Write Will

By Steven R. Merican

Richard Henry, then 89 years old, signed a will in 2004 that overrode all of his previous wills and codicils. The 2004 will left a substantial part of Henry?s estate to Peter Wemple and Mick Zawierucha. Henry?s prior will did not. Wemple was named executor of the 2004 will; Zawierucha was Henry?s caretaker.

About two years later, an Illinois trial court ruled that Henry was disabled, and J.P Morgan Chase Bank was named executor of Henry?s estate. The bank claimed that the 2004 will was procured through Zawierucha?s undue influence, so it asked the trial court for permission to change the terms of the document to reflect Henry?s last-known wishes.

Wemple and Zawierucha objected, but the trial court granted the bank?s request. Wemple and Zawierucha appealed. The bank then asked the appellate court to dismiss the appeal because, it argued, neither Wemple nor Zawierucha had standing to bring the appeal.

The First District Illinois Appellate Court agreed with the bank and dismissed the appeal. Wemple and Zawierucha did not have standing because, as yet, they did not have a legally protectable interest in the 2004 will. This is how the appellate court explained the ruling.

[A] will confers no rights upon a legatee until the death of the testator ?

Consequently, the dispository provisions of the 2004 will cannot provide standing for appellants: since appellants enjoyed no vested rights under the 2004 will, they cannot claim any injury in fact from the granting of the estate's petition. Our adjudication of this appeal would not result in an "immediate and definitive determination" of appellants' [Wemple and Zawierucha] rights, as is required for standing ?

The appellate court stated that Wemple?s and Zawierucha?s recourse would be to file a will contest at the proper time. Read the whole opinion, In re Estate of Henry, Nos. 1-08-3398, 1-08-3479 (10/16/09), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on February 10, 2010 (boomark / email).