Taxation & Estate Planning

Estate of Pawlinski -- New Citation/Undue Influence Case

By Joel A. Schoenmeyer

Sometimes I blog about a court case because it takes the law in a new direction. At other times, I blog about a case because it simply serves as a reminder of what the law is.

Estate of Pawlinski (link is to PDF) is in the latter category. It's a 1st District Appellate Court case involving a citation proceeding. Just as a refresher: you file a citation when you believe that someone is holding property that belongs to the estate.

This case has facts that are fairly typical for a citation. Victoria Pawlinski had three children (Sid, Ed, and Margaret). Victoria made Sid her agent under a power of attorney for property. After doing so, certificates of deposit worth about $500,000 were retitled in the names of Victoria and Sid as joint tenants (meaning that, upon Victoria's death, Sid would become sole owner of the CD's).

Victoria died, and Ed and Margaret sought to have the CD's brought back into the estate. Here's the main point: In Illinois, there is a presumption of undue influence if a person makes a gift to someone with whom they have a fiduciary relationship (like, their agent under their property power of attorney). This presumption can only be overcome if the fiduciary/gift recipient produces "clear and convincing evidence" of no undue influence.

In the Pawlinski case, Sid had varying degrees of involvement in helping his mother re-title her CD's in her name and his name as joint tenants. The trial judge (the recently-retired Judge Malak) didn't believe that Sid overcame the presumption, and therefore the CD's went back into the estate.

Thanks to Patricia Brosterhous, whose Estate Planning and Probate FlashPoints brought this case to my attention. FlashPoints are highly recommend for Illinois attorneys -- and they're free. Here is a link.

Full post as published by Death and Taxes Blog on February 18, 2011 (boomark / email).