FOURTH DIVISION
May 22, 2003

JUSTICE KARNEZIS delivered the opinion of the court:

In this consolidated appeal, Teen Living Programs, Inc. (TLP), Joseph Benjamin(Benjamin) and the Attorney General of Illinois (the Attorney General), filing on behalf of thePeople of the State of Illinois as ultimate beneficiaries of any bequest to TLP, a charitableorganization, appeal from an order of the trial court denying TLP's and Benjamin's motions tovacate an "Agreed Pre-Trial Settlement Order" (agreed order) and the Attorney General'smotion to intervene in the proceedings. The agreed order was entered in guardianshipproceedings involving Charlotte E. Barth (Charlotte) and the Charlotte E. Barth Trust (the trust). The parties to the agreed order are Charlotte's guardian ad litem and court-appointed attorneyLynn Ostfeld (Ostfeld), Charlotte's son Roger Barth (Roger), Charlotte's daughter Rona Roe(Rona), and LaSalle Bank, the trustee of the Charlotte E. Barth Trust. The order declaredCharlotte incompetent, appointed a guardian for her estate, invalidated an amendment shemade to the trust, and made distributions from the trust and from the proceeds of a liquidatedannuity. In addition, Benjamin appeals from an order of the trial court in Charlotte's decedent'sestate dismissing, on res judicata grounds, his claim against Ostfeld challenging the validity ofthe agreed order.

On appeal, appellants argue that the court erred in denying their motions to vacate andintervene because the agreed order was void for the following reasons: (1) it affected theirrights as beneficiaries under the trust, and therefore, as interested and necessary parties, theywere entitled to notice regarding the proceedings which they did not receive; (2) the courtlacked subject matter jurisdiction to enter the agreed order because (a) the only pleadingsbefore the court concerned appointment of a guardian, not a petition to take estate planningmeasures pursuant to the Probate Act of 1975 (755 ILCS 5/1-1 et seq. (West 1998)) (ProbateAct) and (b) Ostfeld had no statutory authority to agree to revoke the amendment; and (3) theorder was procured by fraud. Benjamin also argues that, because the order denying his motionto vacate entered in the guardianship proceedings was still on appeal when the court dismissedhis claim against the decedent's estate, that order was not final and res judicata did not apply. We reverse and remand both the court's order in the guardianship proceedings and the court'sorder in the decedent's estate proceedings.

Charlotte established the trust in 1992, providing for her care during her lifetime. Uponher death, after certain bequests including a $25,000 bequest to Benjamin, the trust residualwould go to Roger and Rona. In 1998, Roger and Rona filed a chancery suit against Charlotteand her then co-trustee Benjamin alleging mismanagement of the trust and breach of fiduciaryduty. The court appointed former Illinois Supreme Court Justice Seymour Simon as guardianad litem for Charlotte to determine her condition.

Justice Simon interviewed Charlotte three times in February 1999 and once in March1999. On March 10, 1999, Justice Simon filed a report stating that Charlotte was angry withRoger and Rona, she wished to have nothing to do with them because of their allegation in thechancery suit that she was not competent to make decisions, and she was fearful that Rogerwould assault her. Justice Simon did not think that Charlotte needed a guardian of either herperson or her estate. However, because of Charlotte's memory lapses, he recommended thatshe receive help with her bill paying, an institutional co-trustee be appointed to the trust to servewith her, and an audit of her accounts be conducted. Pursuant to an agreed order, the courtdismissed the chancery suit without prejudice on November 22, 1999.

On July 15, 1999, Charlotte changed the beneficiary of a $400,000 annuity from Rogerand Rona to Benjamin.

On September 27, 1999, Charlotte executed amendment 3 to the trust, increasingBenjamin's bequest to $50,000 and substituting TLP as residuary beneficiary under trust,thereby eliminating Roger and Rona as beneficiaries.

On March 20, 2000, LaSalle Bank, as trustee of the trust, filed a petition for appointmentof a private social service agency as guardian of Charlotte's person, stating that Charlotte wasa disabled person due to "dementia" and unable to make responsible decisions concerning hercare. On April 11, 2000, Rona filed a cross-petition requesting appointment of Roger asguardian of Charlotte's person.

On April 7, 2000, Charlotte liquidated the annuity of which Benjamin was the beneficiaryand on April 19, 2000, deposited the $389,000+ proceeds into a joint account she held withRoger.

In connection with the guardianship proceedings, Dr. Steven Fox, D.O., interviewedCharlotte on February 11, 2000, February 23, 2000, and April 24, 2000. In his April 27, 2000,report, Dr. Fox found 90-year-old Charlotte "totally incapable of making financial, personal andmedical care decisions," "highly susceptible to patronization, exploitation and undue influence,"and likely to require "surrogate decision making for the remainder of her life."

On April 20, 2000, the court appointed Ostfeld as guardian ad litem for Charlotte todetermine her condition. Ostfeld interviewed Charlotte on April 26, 2000, and filed a report onApril 27, 2000, in which she recommended that the court appoint a plenary guardian forCharlotte's person and estate. Ostfeld stated that her opinion of Charlotte's capabilities was inconformity with Dr. Fox's report. Ostfeld reported that Charlotte expressed to Ostfeld that shewould only accept Roger as guardian of her person, she wanted her money to go to her familyand any decisions regarding her money should be made by family members who had workedfor the money and deserved to have it.

On April 27, 2000, both LaSalle Bank and Rona were allowed to amend their petitions torequest appointment of a guardian of Charlotte's estate as well as her person. In the sameorder, the court appointed Ostfeld as Charlotte's attorney and "her powers and duties [were]expanded accordingly."

On June 5, 2000, Charlotte revoked amendment no. 3.

On June 10, 2000, at Ostfeld's request, Dr. Fox examined Charlotte again to furtherevaluate her capacity. He filed an addendum report reaffirming the need for a plenary guardianof her estate and person, "in particular the need for a guardian of the estate, due to theoverwhelming evidence of patronization, exploitation and undue influence, which rise to thelevel of reportable elder abuse and professional misconduct."

On September 21, 2000, the probate court transferred the case to calendar 14 forpretrial hearing or settlement. That same day, by agreement of the parties, the court appointedRoger plenary guardian of Charlotte's person. An October 10, 2000, joint pretrial statementfiled by the parties makes clear that the only pleadings pending before the court were thepetition and cross-petition for appointment of a plenary guardian of the estate. However, thestatement also raised issues regarding Charlotte's competence when she executed amendmentno. 3, whether legal fees should be paid and whether certain distributions could be made fromthe trust.

On October 16, 2000, the court entered the agreed pretrial settlement order, therebyappointing Roger as plenary guardian of Charlotte's estate; finding Charlotte incompetent whenshe executed amendment 3; voiding amendment 3; ordering payment from the proceeds of theliquidated annuity of legal fees to Rona and Roger's attorneys and to Ostfeld; putting theremaining proceeds from the annuity into a trust for Roger's use in his capacity as guardian;providing for payment of a one-time gift of $675,000 to Roger and Rona and yearly $10,000gifts to Roger, Rona and Rona's daughter; forgiving a $200,000 loan the trust made to Rogerand providing that the loan be considered an advance against Roger's residuary share of thetrust; and indemnifying LaSalle Bank, Roger and Rona from claims each may have against theother.

Charlotte died on November 6, 2000. On December 21, 2000, Roger, as guardian ofCharlotte's estate, filed a petition to close the guardianship estate in lieu of filing an inventoryand accounting.

On January 11, 2001, TLP orally made a motion for leave to appear in the proceedingsregarding the petition to close the guardianship estate. The court granted TLP leave to appearas "legatee under the 3rd Trust Amendment of the decedent's amended and restated trustagreement," "no notice of the motion being given, but no objection thereto stated." "[A]llmatters relating to the closing of the estate and the Agreed Pre-trial Settlement Order" wereagain transferred to another calender for pretrial and/or settlement. On February 7, 2001,Benjamin sought leave to intervene.

On March 6, 2001, TLP filed a motion pursuant to section 2-1401 of the Code of CivilProcedure (735 ILCS 5/2-1401 (West 1998)) to vacate the October 16, 2000, agreed orderasserting that: (1) TLP, as the residuary beneficiary under amendment 3, was entitled to priornotice of any action taken with regard to the trust; (2) the estate planning measures taken in theagreed order were done in violation of section 11a-18(a) of the Probate Act (755 ILCS 5/11a-18(a) (West 1998)); and (3) even if the proceedings were conducted in accordance with therequirements of the Probate Act, the court did not have subject matter jurisdiction to entertainthe relief requested because no pleadings had been filed requesting the relief ultimatelygranted.

Benjamin subsequently filed a motion for leave to adopt and incorporate TLP's motion tovacate or, in the alternative, to transfer the proceeds of the liquidated annuity to the estate. Inaddition to TLP's arguments, Benjamin asserted that Roger and Rona committed fraud uponthe court, concealed facts from the judge and exercised undue influence over Charlotte; thatOstfeld breached her fiduciary duty to Charlotte; and that the court lost jurisdiction to decideclaims against the estate upon Charlotte's death.

On June 14, 2001, the Attorney General petitioned the court for leave to intervene onbehalf of the People of the State of Illinois as the ultimate beneficiaries of any bequest to acharity and to adopt and join TLP's motion to vacate. Roger and Rona filed motions to dismissTLP's motion to vacate, Benjamin's motion to adopt and incorporate TLP's motion to vacate andthe Attorney General's petition to intervene and adopt TLP's motion to vacate or, in thealternative, to deny the motions to vacate and intervene.

On September 6, 2001, following a hearing, the court allowed Benjamin's motion toadopt, denied the Attorney General's motion to intervene and denied TLP and Benjamin'smotions to vacate. The court declared the motions to dismiss moot. TLP, Benjamin and theAttorney General timely appealed the order.

The basis for the court's decision denying TLP and Benjamin's motions to vacate andthe Attorney General's motion to intervene was that it felt that the agreed order had beenentered properly. We find that this determination could not be made without a full hearingregarding Charlotte's competence to make the estate planning decisions, which affectedappellants' alleged beneficiary rights, and, as will be discussed below, TLP, Benjamin and theAttorney General were necessary parties to such a determination. Accordingly, we find that thecourt erred in denying TLP and Benjamin's motions to vacate and in denying the AttorneyGeneral's motion to intervene.

As a preliminary matter, we briefly address (1) Benjamin's argument that the court hadno jurisdiction to consider the motions to vacate because the court's jurisdiction to superviseCharlotte's estate terminated with her death; and (2) appellees' arguments that TLP andBenjamin's motions to vacate were insufficient because TLP and Benjamin did not file petitionsto intervene establishing due diligence and the absence of another adequate remedy.We findno error in the court's decision to consider the motions to vacate.

Benjamin argues that the court's jurisdiction over the motions to vacate the agreed orderterminated at Charlotte's death because the motions were brought in Charlotte's guardianshipestate rather than her decedent's estate. "The general rule is that, upon the ward's [disabledperson's] death, both the guardianship and the trial court's jurisdiction to supervise the ward'sestate necessarily terminate." In re Estate of Gebis, 186 Ill. 2d 188, 193, 710 N.E.2d 385, 387(1999). "The Probate Act accords with this general rule, providing that * * * '[t]he office of therepresentative of a ward terminates * * * when the ward dies.'" Estate of Gebis, 186 Ill. 2d at193, 710 N.E.2d at 387, quoting 755 ILCS 5/24-12 (West 1996). It is clear from the ProbateAct that it is the power of the ward's representative, the guardian, to collect claims for and payout claims against the ward's estate which ends upon the ward's death. After the ward's death,that power rests with the executor or administrator of the estate and the guardian, in the role of"administrator to collect," has only the power to preserve the guardianship estate until anexecutor or administrator is appointed. Estate of Gebis, 186 Ill. 2d at 194, 710 N.E.2d at 388;755 ILCS 5/24-19(a) (West 1998). Concomitantly, because the guardian is powerless to pay aclaim filed against a deceased ward's guardianship estate, "the trial court supervising theguardianship estate is powerless to adjudicate such claims, as jurisdiction lies only where thecourt can grant the particular relief requested." (Emphasis omitted.) Estate of Gebis, 186 Ill. 2dat 194, 710 N.E.2d at 388.

Here, the relief requested is well within the purview of the guardianship court to grant. When Charlotte died, the guardianship court's jurisdiction was confined to supervising thepreservation of Charlotte's estate until her will was admitted to probate or letters ofadministration issued because that is what the guardian's duties were confined to. Estate ofGebis, 186 Ill. 2d at 196, 710 N.E.2d at 389. The intent of the Probate Act is that any claims formonies or bequests from the deceased ward's estate should be filed against the decedent'sestate. Estate of Gebis, 186 Ill. 2d at 194, 710 N.E.2d at 388. Such are not the claims at issuehere. Contrary to appellees' view, TLP or Benjamin's assertions are not "tantamount to claims"against Charlotte for changing her revocable inter vivos trust. Rather, TLP's assertions are ofjurisdictional error by the court while Benjamin's are of fraud and undue influence against Rogerand Rona and breach of fiduciary duty against Ostfeld.

Neither TLP nor Benjamin is claiming against Charlotte herself or the estate. As TLPstated in its motion to vacate, "It is axiomatic that if Charlotte Barth herself had taken steps torevoke and set aside Amendment No. 3, without involvement of a court of law, she would havebeen entirely within her rights to change her estate plan as long as the change did not involvemisconduct or a mistake of fact or law." The only claims here are for vacating an agreed order. Supervising the preservation of the guardianship estate would entail deciding purely proceduralmatters such as motions to vacate because, if the agreed order was vacated, the only resultwould be a return to the status quo existing prior to entry of the agreed order. If appellants, asalleged beneficiaries, then want to claim their share of the estate, they would file their claimsagainst Charlotte's decedent's estate. There was no error by the court in considering themotions to vacate. See Altieri v. Estate of Snyder, 262 Ill. App. 3d 427, 438-39, 633 N.E.2d711, 718 (1992).

Section 2-408 of the Code of Civil Procedure provides that, upon timely application, thecourt can allow an applicant to intervene in an action, either permissively or as of right. 735ILCS 5/2-408(a), (b) (West 1998). The purpose of section 2-408 "is to liberalize the practice ofintervention so as to avoid, upon timely application, the relitigation of issues in a second suitwhich were being litigated in a pending action." People ex rel. Birkett v. City of Chicago, 202 Ill.2d 36, 57, 779 N.E.2d 875, 887 (2002). Therefore, "intervention is usually allowed only beforejudgment" (O'Bannon v. Northern Petrochemical Co., 113 Ill. App. 3d 734, 737, 447 N.E.2d985, 988 (1983)) and one "may not normally seek intervention after the rights of the originalparties have been determined and a final decree entered" (Citicorp Savings of Illinois v. FirstChicago Trust Co. of Illinois, 269 Ill. App. 3d 293, 298, 645 N.E.2d 1038, 1044 (1995)). Thedecision to allow or deny intervention, whether permissively or as of right, is within the sounddiscretion of the trial court, and its judgment will not be reversed absent an abuse of thatdiscretion. People ex rel. Birkett, 202 Ill. 2d at 58, 779 N.E.2d at 888.

Contrary to appellees' assertion, Benjamin did file a petition to intervene, on February 7,2001. Although the record does not contain an order allowing Benjamin's petition to intervene,the court presumably granted the petition since the record shows that the court allowedBenjamin to file his motion to adopt and incorporate TLP's motion to vacate, allowed Benjaminto participate in the hearing on the motion and, ultimately, allowed the motion to adopt.Therecord contains no objections to the adequacy of Benjamin's petition to intervene nor doappellees assert that they made any such objections. Accordingly, appellees' argumentsregarding the adequacy of Benjamin's petition to intervene are waived. Jorgensen v.Whiteside, 263 Ill. App. 3d 998, 1002, 636 N.E.2d 735, 738 (1994); 735 ILCS 5/2-612(c) (West1998).

TLP did not file a petition to intervene. Rather, on January 11, 2001, it made an oralmotion in the proceedings to close Charlotte's guardianship estate for leave to file anappearance. On January 12, 2001, the court entered an order granting the motion withoutobjection and TLP filed its appearance. Subsequently, on February 9, 2001, the court set abriefing schedule giving TLP 21 days in which to file its motion to vacate. TLP filed its motionon March 6, 2001. The record does not reflect nor do appellees assert that they objected in thetrial court to TLP's motion for leave to file an appearance, the court's giving permission to filethe motion to vacate or TLP's filing of the motion to vacate on any grounds, let alone on thebasis of the intervention statute. Accordingly, appellees' argument on this basis are waived.

Moreover, a final decree, the agreed order, had already been entered. As TLP states,there were no pending proceedings in which it could intervene. Further, TLP had no standing,even as a beneficiary under the trust, to intervene in the proceedings that resulted in the agreedorder because only the petition for appointment of a guardian of Charlotte's estate was beforethe court at that time and determination of that issue would not affect TLP's beneficial interest.

TLP and Benjamin filed their motions to vacate pursuant to section 2-1401 of the Codeof Civil Procedure (735 ILCS 5/2-1401 (West 1998)). The purpose of a section 2-1401 petitionis to bring before the trial court facts not appearing in the record which, if known to the court atthe time judgment was entered, would have prevented entry of the judgment. PhysiciansInsurance Exchange v. Jennings, 316 Ill. App. 3d 443, 457, 736 N.E.2d 179, 190 (2000). Thepetitioner must set forth specific factual allegations supporting the following three elements: (1)the existence of a meritorious claim or defense; (2) due diligence in presenting this claim ordefense to the trial court in the original action; and (3) due diligence in filing the section 2-1401petition. Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381, 1386 (1986).

If based on matters outside the trial record, a section 2-1401 petition must be supportedby sworn allegations of the party or parties having personal knowledge of the relevant facts, setforth either by verified petition or by attached affidavit in order to be legally sufficient. Padilla v.Vazquez, 223 Ill. App. 3d 1018, 1025-26, 586 N.E.2d 309, 314 (1991). A party seeking section2-1401 relief must give notice to opposing parties pursuant to Supreme Court Rules 105 and106 (134 Ill. 2d Rs. 105, 106). Padilla, 223 Ill. App. 3d at 1024, 586 N.E.2d at 313. It is withinthe sound discretion of the trial court whether to grant a section 2-1401 petition, and we will notdisturb the court's judgment absent an abuse of that discretion. Airoom, 114 Ill. 2d at 221, 499N.E.2d at 1386. We find that the court abused its discretion here.

Appellees argue that TLP's section 2-1401 motion to vacate should have beendismissed as insufficient because TLP allegedly did not aver timeliness or due diligence in filingits motion, did not verify its motion or attach affidavits, and did not serve the proper parties,including the executor of the estate, with notice of the motion as required pursuant to section 2-1401. However, we find that the requirements of section 2-1401 do not apply to TLP's motionto vacate.

An order, judgment or decree entered by a court without jurisdiction of the subjectmatter or the parties, or by a court which lacks the inherent power to make or enter the orderinvolved, is void and may be attacked, directly or collaterally, in any court, at any time. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 103, 776 N.E.2d 195, 201 (2002); In reEstate of Steinfeld, 158 Ill. 2d 1, 12, 630 N.E.2d 801, 806 (1994). A motion attacking ajudgment solely on the basis that it is void for lack of jurisdiction is not subject to the timelimitations of section 2-1401 and negates the need to allege a meritorious claim or defense anddue diligence; the requirements of section 2-1401 do not apply. Sarkissian, 201 Ill. 2d at 104,776 N.E.2d at 201-02; In re Marriage of Stefiniw, 253 Ill. App. 3d 196, 200, 625 N.E.2d 358, 361(1993). However, in a collateral attack on a judgment, "all presumptions are in favor of thevalidity of the judgment attacked, and want of jurisdiction must appear on the face of therecord." Scheller v. Trustees of Schools of Township 41 North, Range 12, East of ThirdPrincipal Meridian, 67 Ill. App. 3d 857, 866, 384 N.E.2d 971, 979 (1978). The record itself mustfurnish the facts which establish that the court acted without jurisdiction. In re Marriage ofStefiniw, 253 Ill. App. 3d at 201, 625 N.E.2d at 362.

Here, TLP urged that the order should be vacated as void, asserting that the courtlacked (1) personal jurisdiction because necessary parties affected by the order were notnotified of the proceedings and (2) subject matter jurisdiction because (a) the court had nopleadings before it which requested the relief given and (b) the relief was not entered pursuantto the procedures set out in the Probate Act. TLP relied on the record to support its argumentsand did not bring additional facts to the court's attention. Accordingly, because TLP challengedthe agreed order solely on the basis of lack of jurisdiction evident from the record, its motionwas not restricted by the requirements of section 2-1401 and we need not address appellees'arguments thereon. In re Estate of Steinfeld, 158 Ill. 2d at 19, 630 N.E.2d at 809.

Similarly, with regard to Benjamin's motion to vacate, the jurisdictional arguments headopted from TLP's motion to vacate are the same as those discussed above and, therefore,with regard to those arguments, his motion to vacate need not comply with the requirements ofsection 2-1401. However, Benjamin also asserted that the agreed order was procured by fraud,alleged undue influence and concealment of the facts by Roger and Rona and/or Ostfeld, andalleged breach of fiduciary duty by Roger and/or Ostfeld. These allegations are not apparentfrom the record. "Where a motion to vacate a judgment is predicated upon error which is notapparent from the record and requires proof by other evidence, the party seeking to vacate thejudgment must proceed under section 2-1401 and must comply with all of the requirements setforth in that section." In re Marriage of Stefiniw, 253 Ill. App. 3d at 201, 625 N.E.2d at 362. Accordingly, the requirements of section 2-1401 apply to these arguments.

A petition for relief from judgment alleging fraud, undue influence or incompetence isinsufficient as a matter of law unless verified or supported by affidavit. Storcz v. O'Donnell, 256Ill. App. 3d 1064, 1069, 628 N.E.2d 677, 681 (1993). Benjamin did not attach an affidavit orother supporting evidence to his motion and there is no evidence in the record to support hisfraud allegations. These unsupported, conclusory allegations are inadequate to meet therequirements of section 2-1401 and insufficient to warrant relief under that section, and the trialcourt acted properly in denying the relief requested therein. Storcz, 256 Ill. App. 3d at 1070, 628N.E.2d at 681.

Whether TLP and Benjamin prevail on their claims that the agreed order is void for lackof jurisdiction is irrelevant to a determination of whether the requirements of 2-1401 restrict theirmotions. In re Estate of Steinfeld, 158 Ill.2d at 19, 630 N.E.2d at 809. It is sufficient that theychallenged the order on that basis. In re Estate of Steinfeld, 158 Ill.2d at 19, 630 N.E.2d at 809. The requirements of section 2-1401 do not apply to those claims and the trial court, therefore,properly considered them. However, we find that the court erred in denying the motions tovacate without a full hearing regarding Charlotte's competence to execute Amendment 3.

In their motions to vacate, Benjamin and TLP argue that the agreed order is void forthree reasons: (1) lack of personal jurisdiction because the order affected the interests ofnecessary parties who had not been notified of the proceedings; (2) lack of subject matterjurisdiction because the court did not have pleadings before it requesting the relief sought; and(3) lack of subject matter jurisdiction because the proceedings did not comply with therequirements of the Probate Act. The crucial determination is whether TLP and Benjamin werenecessary parties to the agreed order. If they were necessary parties, the agreed order is voidand should be vacated (Schlosser v. Schlosser, 218 Ill. App. 3d 943, 949, 578 N.E.2d 1203,1207 (1991)) and we need not address TLP and Benjamin's second and third arguments.

"[B]eneficiaries of a trust are necessary parties to an action to foreclose their interest,"unless their interests are represented by others such that they receive actual and efficientrepresentation or they are so numerous that it would be oppressive and burdensome to namethem. Schlosser, 218 Ill. App. 3d at 947, 578 N.E.2d at 1205, citing Illinois National Bank ofSpringfield v. Gwinn, 390 Ill. 345, 356, 61 N.E.2d 249, 254-55 (1945), and Village of Lansing v.Sundstrom, 379 Ill. 121, 125, 39 N.E.2d 987, 989 (1942). "The beneficiary is a necessary partybecause he has the equitable and ultimate interest to be affected by the decree." IllinoisNational Bank of Springfield, 390 Ill. at 356, 61 N.E.2d at 255. If beneficiaries are deemednecessary parties, then failure to name them as parties renders a judgment void. Schlosser,218 Ill. App. 3d at 949, 578 N.E.2d at 1207. Accordingly, the initial determination is whether TLPand Benjamin were beneficiaries of Charlotte's trust. If they were beneficiaries, then it must bedetermined whether they were necessary parties to the agreed order.

Charlotte executed amendment 3 on September 27, 1999, arguably creating a beneficialinterest for TLP (and concomitantly, the Attorney General) and increasing Benjamin's beneficialinterest. The agreed order voided the amendment because Charlotte was, allegedly, incapablewhen she executed it. However, we find no evidence in the record from which the court couldhave made this determination. There is some evidence of Charlotte's capacity six monthsbefore executing the amendment (Justice Simon's report filed on March 10, 1999) and sevenmonths after executing the amendment (Dr. Fox's report and Ostfeld's report, both filed on April27, 2000). There is no evidence of Charlotte's mental capabilities between the date JusticeSimon filed his report on March 10, 1999, and the date that Dr. Fox first interviewed Charlotte onFebruary 11, 2000, let alone for the specific date on which she executed the amendment,September 27, 1999. "Since the law presumes every person sane until the contrary is proved,the burden rests on the party asserting the lack of testamentary capacity to prove it." Wiszowatyv. Baumgard, 257 Ill. App. 3d 812, 816, 629 N.E.2d 624, 629 (1994). There is no evidence oneway or the other that Charlotte was incapable to execute the amendment on September 27,1999. Therefore, whether TLP became a beneficiary under the trust pursuant to amendment 3could not be determined from the evidence presented.

Benjamin already had a beneficial interest prior to amendment 3. Amendment 3 merelydoubled his interest. However, TLP's and Benjamin's interests were arguably eliminated and/orreduced by Charlotte's revocation of the amendment. The agreed order makes bare mention ofthe revocation given the order held amendment 3 to be invalid. Accordingly, if the courtdetermines that Charlotte was competent when she executed the amendment, in order todetermine whether TLP had a beneficial interest and whether Benjamin's beneficial interest wasincreased, it must then determine Charlotte's capacity when she executed the revocation. IfCharlotte was incapable when she executed the revocation, the revocation is invalid, TLP's andBenjamin's financial interests pursuant to amendment 3 were not affected by the purportedrevocation and they were beneficiaries of the trust when the agreed order was entered.

As beneficiaries, unless they received adequate representation by others during theproceedings, failure to name TLP and Benjamin as necessary parties rendered the agreed ordervoid. Schlosser, 218 Ill. App. 3d at 949, 578 N.E.2d at 1207. Again, this is a question of fact tobe determined by the trial court. If the court finds that TLP and Benjamin were necessaryparties, then the court lacked personal jurisdiction over the parties because it entered theagreed order without notice to all necessary parties and the agreed order is void.

We find similarly with regard to the annuity of which Benjamin was the beneficiary. Charlotte changed the beneficiary of the annuity to Benjamin on July 15, 1999. As with herexecution of amendment 3, there is no record of Charlotte's mental state at that time. JusticeSimon filed his report four months earlier, on March 10, 1999, while Dr. Fox and Ostfeld filedtheir reports nine months after the change, on April 27, 2000. Moreover, Charlotte liquidated theannuity on April 7, 2000, and her incapacity on that date is also in question. Therefore, whetherBenjamin was ever the beneficiary of the annuity or remained the beneficiary such that he wasentitled to notice of the proceedings regarding the agreed order, given its impact on theproceeds of the annuity, should be determined by the trial court. Accordingly we remand to thetrial court for a determination of whether TLP was a beneficiary under the trust and necessaryparty to the agreed order, whether Benjamin was beneficiary under the annuity, and whetherBenjamin was a necessary party to the agreed order pursuant to either the trust or the annuity.

We find similarly with regard to the Attorney General's petition to intervene. The AttorneyGeneral filed his petition to intervene on behalf of the People of the State of Illinois as theultimate beneficiaries of any bequest to a charity.

" '[He] has the authority to protect a charitable trust and its property either defensively,where an attack is made on its validity, or by an action as plaintiff, by securing theconstruction of the trust instrument. In a suit by others where the validity or theenforcement of a charitable trust may come into question the Attorney General should bemade a party defendant.' " In re Estate of Stern, 240 Ill. App. 3d 834, 837, 608 N.E.2d534, 536 (1992), quoting In re Estate of Tomlinson, 65 Ill. 2d 382, 387, 359 N.E.2d 109,111 (1976).

"[F]unds which are appropriated for the benefit of society at large are considered to be held in acharitable trust, over which the Attorney General has regulatory authority. There is norequirement that express trust language be used to qualify the funds as a 'charitable trust.'" Inre Estate of Stern, 240 Ill. App. 3d 834, 837, 608 N.E.2d 534, 536 (1992). Here, TLP is thecharitable organization in question. If TLP was a necessary party to the proceedings concerningthe agreed order, the Attorney General could properly intervene on behalf of the People in thisaction to determine the validity of Charlotte's bequest. Accordingly, the court erred in denyingthe Attorney General's petition to intervene and we remand to the trial court pending itsdetermination of TLP's status.

Lastly, we consider Benjamin's claim in Charlotte's decedent estate. Benjamin filed theclaim against the estate, the trust, Roger, Rona, LaSalle Bank, Roger and Rona's attorney andhis law firm, and Ostfeld and her law firm. He accused them of fraud, contested the validity ofthe agreed order, contested the validity of Charlotte's liquidation of the annuity and of herpurported change in its beneficiary, and requested imposition of a constructive trust on theproceeds of the liquidated annuity held by any party, including any legal fees paid to Ostfeld. The court granted Ostfeld's motion to dismiss Benjamin's claim against her and her firm, finding"lack of subject matter jurisdiction based on the court order of Oct., 2000 and res judicata." Benjamin appeals that order, arguing that the court should not have granted the dismissal on resjudicata grounds because his appeal from the order dismissing his motion to vacate the agreedorder in the guardianship case was still pending.

The doctrine of res judicata bars relitigation of a cause of action between the sameparties after a final judgment on the merits has been rendered by a court of competentjurisdiction. Saxon Mortgage, Inc. v. United Financial Mortgage Corp., 312 Ill. App. 3d 1098,1104-05, 728 N.E.2d 537, 542 (2000). The doctrine extends not just to those claims actuallydecided in the first action, but also to those issues that could have been decided in that action. Saxon Mortgage, Inc., 312 Ill. App. 3d at 1105, 728 N.E.2d at 542. Whether a subsequentclaim is barred by res judicata is a question of law, which we review de novo. Saxon Mortgage,Inc., 312 Ill. App. 3d at 1105, 728 N.E.2d at 542.

Benjamin's cause of action and claims in the decedent's estate are essentially the sameas asserted in his motion to vacate the agreed order filed in the guardianship proceedings, filedagainst the same parties and alleging the same issues or issues that could have been raised inthe guardianship proceedings. The question, therefore, is whether the guardianship court'sdenial of Benjamin's motion to vacate is a final judgment for purposes of res judicata. We findthat it is. The court held a full hearing on the motions to vacate and issued an order resolvingthe matter with finality: it dismissed the motion to vacate, thereby finding the agreed order validand, concomitantly, liquidation of the annuity to be valid given that the legal fees were paid fromthe annuity and the balance of the proceeds were put into trust. Although Benjamin appealedthe denial of his motion to vacate, "a final judgment can serve as the basis to apply the doctrinesof res judicata and collateral estoppel even though the judgment is being appealed." IllinoisFounders Insurance Co. v. Guidish, 248 Ill. App. 3d 116, 120, 618 N.E.2d 436, 440 (1993), citingWiseman v. Law Research Inc., 133 Ill. App. 2d 790, 792, 270 N.E.2d 77, 79 (1971). Therefore,the pending appeal of the guardianship court's order denying Benjamin's motion to vacate doesnot bar use of that order for purposes of res judicata.

However, where the judgment in one case is being appealed, conflicting judgments canresult from allowing the judgment in that case to serve as the basis for res judicata in a secondcase since the judgment in the first case could be reversed on appeal. Illinois FoundersInsurance Co., 248 Ill. App. 3d at 120-21, 618 N.E.2d at 440; Wiseman, 133 Ill. App. 2d at 792,270 N.E.2d at 79. "[T]he only means of avoiding such conflicting judgments is to delay adecision in the second suit pending a decision on the appeal of the first." Illinois FoundersInsurance Co., 248 Ill. App. 3d at 121, 618 N.E.2d at 440. Where, as here, the court in thesecond case did not delay its judgment pending a decision in the appeal of the first case, we willgenerally reverse and remand the judgment in the second case with directions to stayproceedings until the appeal of the first case is resolved. Illinois Founders Insurance Co., 248 Ill.App. 3d at 123, 618 N.E.2d at 442; Wiseman, 133 Ill. App. 2d at 793, 270 N.E.2d at 80. Here,we reversed and remanded the judgment in the first case (guardianship court's denial ofBenjamin's motion to vacate) to the trial court for a full hearing on the 2-1401 petition. Therefore, we reverse and remand the judgment in the second case (dismissal on basis of resjudicata) with directions to the court to stay its proceedings until resolution of the case in theguardianship proceedings.

For the reasons stated above, we (1) reverse and remand the trial court's denial of TLPand Benjamin's motions to vacate and its denial of the Attorney General's motion to intervene inthe guardianship proceeding and (2) reverse and remand the dismissal of Benjamin's claim inthe decedent estate proceeding with directions to stay proceedings pending resolution of theproceedings in the guardianship case.

Reversed and remanded.

THEIS, P.J., and GREIMAN, J., concur.