In re Estate of Elias

SUPREME COURT CASES

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State: Illinois

Court: 1st District Appellate

Docket No: 1-09-3328, 1-09-3451 Cons., NRel

Case Date: 03/24/2011

Preview:FOURTH DIVISION March 24, 2011

No. 1-09-3328 and 1-09-3451 (consolidated)

In Re ESTATE OF MARGERY M. ELIAS, Deceased,

) ) ) Margaret K.H. Whitaker, as Independent Executor ) of the Estate of Margery M. Elias, Deceased, ) ) Petitioner-Appellee and Cross-Appellant, ) ) v. ) ) Eleanor A.H. McDonnell, ) ) Respondent-Appellant and Cross-Appellee, ) )

Appeal from the Circuit Court of Cook County.

07 P 6699

The Honorable James W. Kennedy, Judge Presiding.

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Gallagher and Justice Lavin concurred in the judgment and opinion. OPINION Petitioner-appellee and cross-appellant, Margaret A.H. Whitaker, independent executor of the estate of Margery M. Elias, deceased, filed a petition for recovery of citation against respondent-appellant and cross-appellee, Eleanor A.H. McDonnell, to recover personal property and approximately $471,000 which was transferred from Elias's brokerage account to McDonnell pursuant to a transfer-on-death beneficiary form Elias executed while McDonnell was acting under a power of attorney. The trial court found that Elias lacked mental capacity to effect the transfer of money and gifts of personal property. The trial court also found that there was a presumption these transfers were fraudulent because McDonnell was appointed Elias's power of

1-09-3328 and 1-09-3451 (consolidated) attorney, and that McDonnell failed to rebut this presumption. The court awarded Whitaker her fees and costs as executor, but assessed all fees and costs against the estate. Both appealed. McDonnell seeks to have the judgment reversed. Whitaker seeks to have the fees and costs assessed entirely against McDonnell. We find the trial court's determination of lack of testamentary capacity and use of undue influence was not against the manifest weight of the evidence and affirm that judgment. We also affirm the portion of the fee order awarding the total amount of attorney fees and costs. However, the trial court abused its discretion in not equitably apportioning the fees and costs between the estate and McDonnell, and thus, we reverse that portion of the order and remand for a determination of the fees and costs incurred as a result of the misconduct of McDonnell and order that this portion of fees and costs be assessed against her. BACKGROUND The following facts were adduced at trial in the citation proceedings. Elias executed a will on September 14, 1997, and two codicils, one on January 21, 1988, and another on February 10, 1995. The will left $5,000 to Elias' son, Ramon J. Elias, Jr. (Jay), with the balance of her estate split equally between McDonnell and Whitaker. McDonnell and Whitaker are both daughters of the late Elias. The January 21, 1988, codicil named as executors Elias' husband, followed by Whitaker, then in succession McDonnell, William A. Edwards, and Society National Bank. The second codicil dated February 1, 1995, only amended the first paragraph of the will to reflect that all jewelry would be split equally between McDonnell and Whitaker, and did not amend any other will provision. Elias and her husband, Ramon Elias, had a 45-acre farm property and residence in Ohio.

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1-09-3328 and 1-09-3451 (consolidated) Ramon Elias died in March 2004. Whitaker testified that before her father died, she would visit on holidays and at other unscheduled times, but the only time the whole family got together was for her father's funeral. The family had a history of friction, including the disowning of Whitaker and McDonnell's brother Jay about 30 years ago, and there was always friction between Whitaker and McDonnell. Elias decided to sell the farm after her husband died. There were frequent telephone calls among Elias, McDonnell and Whitaker regarding where Elias would live. Elias eventually moved into an apartment in Mayfield, Ohio, in March 2005. After the farm was sold in August 2005, McDonnell and Whitaker both spent four weekends in October 2005 helping Elias pack up the items in the house. Whitaker testified that Elias was "wandering" and was not packing, but McDonnell testified that Elias was doing loads of laundry, making meals for everyone, cleaning and organizing the packing, and assisting in the moving process. On the second weekend, Whitaker and McDonnell were sorting items for packing when Elias screamed that one of the paintings, either a Picasso or a Rembrandt, was missing. McDonnell accused Whitaker of taking it and said that either Whitaker or their brother Jay must have it. Whitaker stated that was not possible because she arrived on Friday night at 9 p.m., after McDonnell arrived, and left Sunday night, while McDonnell left Monday morning, and McDonnell had the key. McDonnell tackled Whitaker in the atrium as Whitaker tried to leave to take a break, and Elias told the two of them to stop. On the third weekend, Whitaker arrived at the farm at around 9 p.m. as usual, but the

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1-09-3328 and 1-09-3451 (consolidated) house was locked and dark. Elias and McDonnell arrived at 11:30 p.m. and went inside and hung up their coats. Whitaker followed them inside and stated, "You two are the two most selfcentered women that I have ever known in my life," because neither had called Whitaker to let her know they would be running late. At that point, Elias slapped Whitaker. Whitaker in turn touched Elias, and Elias lost her balance and stepped back but did not fall. McDonnell did not witness this altercation. Also, McDonnell never witnessed Whitaker strike Elias at any time. Whitaker stayed overnight and proceeded to continue assisting in packing that weekend, speaking with her mother about the order of packing items. Elias was still wandering around the house. On the final weekend, moving trucks moved all the personal property they had packed into four storage units in Mayfield Heights, down the street from Elias' apartment. The only items gifted to McDonnell by Elias were a baby grand piano, some cabinets, books, and two chandeliers. Whitaker was given the player piano, a small marble end table, some books and two chandeliers, because, according to Whitaker, it was an even split. Other than the items Elias took to her new apartment, all remaining personal property went into storage. Whitaker testified that McDonnell took other personal property of Elias, while McDonnell testified that she was given the items by Elias, including a gold ring, blue lamp, and flatware. As to particular items, Whitaker's and McDonnell's valuations varied substantially. In particular, the flatware given to McDonnell is alleged by Whitaker to be worth up to $200,000, but McDonnell's appraiser placed the value of the flatware at approximately $14,050. McDonnell's appraiser further appraised the contested personal property in possession of McDonnell at $31,000, and the personal property of the Estate in storage at $45,000.

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1-09-3328 and 1-09-3451 (consolidated) Witness Cosette Gaul helped Elias do work on the farm while Elias owned the farm and had many conversations with her during 2004 to 2005, which continued by phone one to two times a week after the farm was packed up, into 2006. Gaul testified that in all these conversations, Elias was of sound mind and memory. Gaul was present on one of the weekends when Whitaker and McDonnell were helping Elias pack up the house and observed Whitaker swearing and being rude to everyone including Elias. Gaul testified that "Eleanor [McDonnell] seemed to be there for her mother. I wouldn't say Maggie [Whitaker] was." Ann Lax testified that she had known the Eliases for 50 years. While Elias was living on the farm, Lax saw her in person once a month and spoke with her one to two times a week. After Ramon Elias died, Lax spoke with Elias by telephone approximately three times a week. After Elias moved to Mayfield Heights in August 2004, Lax saw her in person four times a month and spoke with her on the telephone one to two times a week. Lax testified that Elias seemed normal and of sound mind and memory. Whitaker visited Elias in person at least once a month after her father's death and before Elias moved from the farm to the apartment. Prior to her father's death, Whitaker recalled her mother's personality as "very, very strong-willed" and "very, very independent." She loved doing activities, going to a movie or the symphony or the ballet, and she traveled. She also organized dinners, cocktail parties, and gatherings and was very organized. Whitaker testified that Elias became confused and very depressed after her husband died and had trouble remembering things. Elias had several car accidents, one of which resulted in the total loss of her vehicle. Whitaker arranged for the purchase of a new vehicle. However, six months later Elias called

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1-09-3328 and 1-09-3451 (consolidated) Whitaker to tell her the car was getting repossessed and that the dealer made a mistake with the paperwork. Elias had decided to put the insurance money from the accident in her account, instead of paying the car in full, and executed a 60-month note. The dealer had given her a coupon book for her payments, but Elias told Whitaker she never received a coupon book and was not aware that she had a note on the vehicle. Elias also indicated she was having trouble balancing her checkbook. Whitaker discussed the issue with McDonnell and they decided that Elias' broker, John Turner, would assist her with paying her bills and balancing her checkbook. Elias was advised to pay for the vehicle in full and so she kept it. There was also an incident where Elias struck a vehicle in 2005 in a shopping mall parking lot and did not remember doing so. She called Whitaker to complain that she thought she was being involved in insurance fraud. Whitaker informed McDonnell of this incident. Whitaker was concerned about Elias and wrote a letter to Elias' primary physician, Dr. Thomas King, in March 2005 outlining her concerns and Dr. King saw Elias. Elias told Whitaker that Dr. King gave her a clean bill of health, but Whitaker did not believe Elias. Whitaker spoke with McDonnell and McDonnell indicated that she had some of the same concerns. They discussed that Elias had gotten lost on the way to a restaurant that she had been going to for 45 years. McDonnell indicated she would research and find a better doctor for Elias to ascertain whether Elias had a confusion problem, a depression problem, or a hearing problem. According to McDonnell, Dr. King called her and told her he thought Elias was depressed, but that otherwise she was fine. McDonnell testified that she had frequent contact with her mother after her father died,

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1-09-3328 and 1-09-3451 (consolidated) including in-person visits at least one week every month. McDonnell also had phone contact with Elias two to three times per week. Elias executed a health care power of attorney on September 28, 2005, naming McDonnell, with Whitaker as successor. On that same date, Elias executed a durable general power of attorney appointing Whitaker as her power of attorney. However, on November 16, 2005, Elias executed another durable general power of attorney instead naming McDonnell, with Whitaker as successor. The durable power of attorney granted broad powers to McDonnell to handle and dispose of Elias' real and personal property. According to McDonnell, she did not invoke her power of attorney because Elias gave her permission to talk to her doctors. However, on February 20, 2006, McDonnell sent a fax to Dr. King asking to "have my mother sign consent for me to be able to assist you regarding her matters," and indicating she had previously faxed the signature page of her health care power of attorney executed September 28, 2005. McDonnell moved Elias to Illinois initially for testing, and then moved her there permanently. According to McDonnell, in December 23, 2005, she took Elias to Alexian Brothers Hospital in Elk Grove Village, Illinois, because she was still attempting at that time to get Elias into an assisted living facility in Cleveland where Elias wanted to go but Dr. King was not cooperating. It was more convenient for McDonnell to take Elias to doctors in Illinois as opposed to Ohio. McDonnell did not look into any other doctors for Elias in the Cleveland area. McDonnell was not concerned with Elias' mental capacity; rather, she wanted to investigate whether Elias had a hearing problem. However, McDonnell did not make any

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1-09-3328 and 1-09-3451 (consolidated) appointments for an ear, nose and throat specialist. McDonnell was aware that the doctor at Alexian Brothers Hospital, Dr. Forchetti, specialized in treating patients with memory problems who had Alzheimer's and dementia, but claimed dementia was "never" a concern of hers. Whitaker was unaware that McDonnell took Elias to Alexian Brothers Hospital in Illinois, and none of the evaluations or test results were shared with Whitaker. According to McDonnell, she was acting as Elias' "sole sounding board" within the family because "[t]hat's the way [Elias] wanted it." Elias specifically informed McDonnell that she did not want Whitaker or their brother Jay to know anything about her life. Whitaker found out that McDonnell was moving Elias to Barrington from her brother Jay. McDonnell had left a voicemail for Jay stating that Elias was moving to Chicago and if he wanted to see Elias he should have lunch with them in Cleveland. Whitaker decided to go as well, even though McDonnell did not invite her, and drove 3 1/2 hours from Dayton to Cleveland. McDonnell told Whitaker and Jay that she had a power of attorney, that she was the one in control of making business decisions for Elias, and if Whitaker or Jay wanted to know anything about Elias, they were to call McDonnell and not Elias. Whitaker was "in shock." Previously, Elias had been adamant about staying in Cleveland because she had been there for 50 years and had a social circle of friends there. At no time in 2006 did Elias ever express to Whitaker that she wished to move from the Cleveland area. According to McDonnell, however, Elias had no objection to moving to Illinois and was looking forward to it as a new "adventure," and knew many of McDonnell's friends. McDonnell also claimed that at the lunch, both Whitaker and Jay seemed "relieved" that McDonnell was taking

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1-09-3328 and 1-09-3451 (consolidated) Elias with her. After the lunch, McDonnell left with Elias and drove her to Chicago. Whitaker consulted an attorney about McDonnell's power of attorney and moving Elias to Illinois, but the attorney told her once the power of attorney was in place, there was nothing Whitaker could do. McDonnell denied making these statements and claimed Whitaker and Jay perhaps "misunderstood" what she said. At Alexian Brothers Hospital, Michelle SanFilippo, a physician assistant, worked for Dr. Forchetti. SanFilippo also directed special care units for patients with Alzheimer's and dementia and was a volunteer for the Alzheimer's Association for 10 years. SanFilippo evaluated Elias for her mini-mental status examination at Alexian Brothers on December 23, 2005. Elias came with McDonnell. Elias did not want to be at the evaluation, was angry about not living in Ohio, and was very irritated. Elias also had poor insight into the importance of paying bills. Based on this evaluation, it was recommended that Elias not live alone for safety concerns due to her memory problems, behavior and lack of insight into her problem. Elias eventually was placed and lived at Lake Barrington Woods in Illinois from June 2006 to March 2007. Dr. Forchetti performed a mini-mental-status examination in early 2006. Forchetti has an M.D. in neurology and a Ph.D. in neuropharmacology and sees approximately 1,000 patients a year who suffer from dementia or Alzheimer's. Dr. Forchetti remembered Elias as being very resistant to evaluation. Dr. Forchetti found Elias to be suffering from mild to moderative cognitive impairment. However, according to Dr. Forchetti, even in November 2006 Elias was partially competent. Dr. Forchetti also testified that urinary tract infections can affect a patient's

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1-09-3328 and 1-09-3451 (consolidated) cognitive function. Dr. Forchetti further testified that she and other members of her staff are trained to evaluate whether family members are acting in the best interests of the patient and that, in her opinion, McDonnell was "absolutely" acting in the best interests of Elias. The next time Elias was evaluated at Alexian Brothers Hospital was September 12, 2006, when she was again seen by SanFilippo. At that time, Elias was already at Lake Barrington Woods, but was having behavioral issues. McDonnell told SanFilippo that Elias was wandering into other residents' rooms and did not respond well to redirection. Elias did not know the season, month, day, date, or the location of the place they were in terms of state, county, town or city, hospital or floor. SanFilippo felt Elias needed to live in a more structured environment. SanFilippo also saw Elias for another mini-mental-state examination on March 21, 2007. On this date, Elias only knew that it was spring. Elias was unable to recall the words "apple, table, and penny." The note for this visit indicated that McDonnell moved Elias to a dementiaspecific unit at another facility. McDonnell's report from that facility was that Elias often refused to eat and to take her medication. There was also a note by Dr. Forchetti: "Even long-term memory appears severely compromised at this time. The patient cannot tell me nothing [sic] of her youth, of her past in general. She recalls to have been married but cannot tell the name of her husband. She cannot name her children and does not remember exactly how many she had." Dr. Leahy, board certified in clinical neuropsychology and clinical rehabilitative psychology, testified that the mini-mental-status exam is a very brief exam, and that none of the tests they perform are specifically designed to determine capacity to handle finances. Elias likely

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1-09-3328 and 1-09-3451 (consolidated) had some difficulties in organizing and paying bills, but Dr. Leahy did not assess testamentary capacity. Leahy would not give an opinion regarding testamentary capacity. Dr. Roger Weise was Elias' internal medicine and geriatric doctor at Alexian Physicians Group beginning at the time she moved to Illinois in July 2006. Weise was the medical director of Older Adult Health Care at Alexian Physicians Group and an attending physician for patients with dementia. Elias was brought to Weise by McDonnell. Dr. Weise's nurse administered a minimental-status test and Dr. Weise personally evaluated Elias. Elias only knew what day it was and what town she was in. Elias exhibited moderate to severe impairment. Elias needed help with instrumental activities of daily living, including managing money, managing medication, doing laundry, buying food, driving a car, getting from place to place, and performing home repairs. A note in Dr. Weise's records dated August 1, 2006, indicated that McDonnell called and left a message that Elias was forgetting to go down to eat dinner and needed an escort and that she was not taking showers. Another message from November 21, 2006, indicated that McDonnell reported to Dr. Weise's office that Elias was wandering into other residents' apartments and used someone else's bathroom. McDonnell also reported that Elias was accusing people of stealing her belongings. Also, on January 12, 2007, McDonnell reported to Dr. Weise that Elias was naked in her apartment when the staff at Lake Barrington Woods would bring her breakfast, and went down the hall with only a nightgown on, no slippers and no robe. However, at trial McDonnell denied making such statements and claimed they were "boilerplate verbiage" that applied to patients with memory problems. McDonnell claimed that Elias merely used to visit a resident named Betty, and Betty did not desire frequent visits 11

1-09-3328 and 1-09-3451 (consolidated) anymore. McDonnell also denied telling anyone at Alexian Brothers that Elias had five car accidents, claiming "that was another stock verbiage that they put in there." McDonnell remembered telling them about only three accidents. According to McDonnell, the conclusion that Elias was unable to take care of her own finances was "generic information" that "they just plug in from the computer into these various reports." McDonnell denied that she was acting under the power of attorney. However, a copy of McDonnell's power of attorney was sent to Alexian Brothers from McDonnell's business fax machine on July 17, 2006, though she claimed she could not recall ever sending it. During that time, Whitaker visited Elias with her friend Brenda Tutterow in October 2006. Whitaker telephoned Elias on a Sunday and stated she would come to see her on Thursday. On Tuesday night, Elias called asked Whitaker where she was and stated she was dressed up and ready to go to dinner. On Thursday, Whitaker called Elias to let her know she was running late in traffic, and Elias did not remember that she was coming. When Whitaker arrived for her visit with Tutterow, Elias was confused as to who Tutterrow was, confusing her with Whitaker's daughter, Elizabeth. Tutterrow testified that she had known Elias since 1990, and saw Elias possibly four to seven times and Elias previously knew who she was. Elizabeth and Tutterow were 10 years apart in age, and there was a 75-pound physical difference between the two. Tutterrow testified that Elias "did not seem like the person" she knew, was confused, and was not attentive at all, "[l]ike she wasn't there." From June 2006 to December 2006, McDonnell visited Elias one to two times a week, including extensively on Sundays. In late June or early July 2006, McDonnell began writing out 12

1-09-3328 and 1-09-3451 (consolidated) checks for Elias, and then began also signing all of Elias' checks in January 2007. McDonnell testified that Elias was not confused, with the exception of periods when she had urinary tract infections and had some short-term memory problems as a result of those infections. Elias executed the transfer-on-death agreement for her Linsco Private Ledger (LPL) account on August 12, 2006, naming McDonnell as the sole beneficiary and McDonnell's husband, Peter J. McDonnell, as contingent beneficiary. McDonnell testified that she was alone with Elias when she executed it. Elias did not consult with an attorney or any other advisor. Except for Elias' signature, the entirety of the document was written by McDonnell. McDonnell filled out the beneficiary information on the form, listing herself as the 100% primary beneficiary, and made no provision for Elias' other children, Whitaker and Jay. According to McDonnell, Turner sent her the transfer-on-death document and asked her if she would have Elias sign it. McDonnell told Elias that Elias' broker, John Turner, wanted Elias to fill out the form. McDonnell showed Elias where to sign the form, and she signed. In April 2007, Whitaker discovered that Elias was moved from Lake Barrington Woods because she had broken her hip, had hip replacement surgery, and was in the hospital. McDonnell had not informed her. Whitaker wanted to visit Elias the following week, but McDonnell objected because she would be out of town. McDonnell then instituted a password protection system whereby no one could speak with Elias unless they knew the password. In May 2007, Whitaker telephoned the hospital to wish Elias a happy Mother's Day, but was told that she could not speak with Elias unless she had the password. McDonnell informed Whitaker that she instituted the password because Elias was not ready to talk to Whitaker yet, and she had the 13

1-09-3328 and 1-09-3451 (consolidated) power of attorney. McDonnell further refused to give Whitaker Elias' address. McDonnell claimed she instituted the password because she was "protecting" Elias' safety and "encouraging her fast recovery." According to McDonnell, after the "abuse" at the farm, Elias "did not feel safe in the presence of" Whitaker and Elias requested not to be alone with Whitaker. According to McDonnell, Elias stated she did not want to ever be alone with Whitaker. McDonnell claimed at trial that "it turns out" Whitaker had been verbally abusing Elias for "years." Although McDonnell claimed that she first acted pursuant to the general durable power of attorney on April 2, 2007, when Elias broke her hip, checks written by McDonnell dated August 31, 2006, September 1, 2006, September 11, 2006, and numerous other checks, stated "durable power of attorney," "DPOA" or "POA" on the memo line. Elias' National City Bank account was in her name only; McDonnell was not on the account. McDonnell wire-transferred $20,000 from Elias' National City Bank account to a joint account in her name and Elias' name at Barrington Bank & Trust on December 27, 2006. That joint account was opened on July 14, 2006, for "convenience" and was primarily funded with Elias' money. All the checks drawn on that account were written by McDonnell. McDonnell wrote check number 2526 dated December 30, 2006, to herself for $11,750.00, and wrote "Gift from mom." McDonnell and her husband had a tax lien that was placed on their Barrington property on April 19, 2004, in the amount of $26,650, which was released on April 19, 2007. However, McDonnell claimed she used only funds from her business to release the tax lien. On May 15, 2007, McDonnell wrote check number 1027 to herself drawn on Elias' account for $11,500. McDonnell testified that Elias told her if she ever needed money to help herself. 14

1-09-3328 and 1-09-3451 (consolidated) Though McDonnell refused Whitaker any information when Elias broke her hip, Whitaker found Elias' address in the White Pages. For six weeks, Whitaker and Jay drove to Chicago and visited Elias for three days of the week. Whitaker testified that during this time Elias was "totally cooked," oblivious to her surroundings. Elias was in a psychiatric ward because the hospital staff stated she was combative and not willing to take her medication. Elias passed away on June 20, 2007. McDonnell faxed a copy of Elias' death certificate to LPL and on July 30, 2007, sent a request that all of the money in Elias' LPL account be transferred to McDonnell's LPL account and another bank account. McDonnell had previously faxed her durable general power of attorney to Turner on February 20, 2007. As of July 31, 2007, the amount in Elias' LPL account was $440,743.11. The amount of $398,808.19 was transferred to McDonnell's account. A further transfer of $40,000 was made from Elias' LPL account to McDonnell's personal account at Barrington Bank & Trust. During the entire six weeks Whitaker and Jay were visiting Elias, McDonnell claimed she was the executor of Elias' estate. However, on August 28, 2007, after locating "lost legal documents," McDonnell discovered Whitaker was actually the executor and called Whitaker to notify her she was the executor and that she needed to hire an attorney because there was a conflict of interest. However, McDonnell did not provide Whitaker a copy of Elias' will at that time. Whitaker received a copy of the will after her counsel requested it. Even after discovering the will which bequeathed the bulk of Elias' estate in equal portions to McDonnell and Whitaker, McDonnell continued to write checks using the money she had transferred from Elias' LPL brokerage account. McDonnell wrote check number 1002 from her 15

1-09-3328 and 1-09-3451 (consolidated) Barrington bank account dated August 31, 2007, payable to herself for $15,000, with a memo stating "$10,000 retainer," but McDonnell could not remember what the "retainer" was for. McDonnell wrote check number 1005 dated September 19, 2007, to her husband for $1,500, to reimburse him for clothes McDonnell had bought herself. McDonnell wrote check number 1006 dated September 26, 2007, to her husband for $3,000, also for clothes. McDonnell wrote check number 1007 dated September 26, 2007, payable to herself, for $10,000, but could not explain what that check was for. McDonnell wrote check number 1008 in the amount of $5,525.58, for landscaping at her house. McDonnell wrote check number 1012 in the amount of $3,034.96 to Macy's. McDonnell also wrote three checks totaling $50,000, payable to herself, in November 2007, and the bulk of these funds were then deposited into McDonnell's A.G. Edwards account. McDonnell did not know if she kept the remainder of these funds in cash. Meanwhile, there were debts for Elias which remained unpaid. According to McDonnell, she was advised by her attorney not to pay the debts because there was a question whether she was the executor. There was an unpaid IRS tax bill for the year 2006 in the amount of $31,438.90. McDonnell did not set aside funds to pay those taxes because she was advised "it was going to be a wash" based on write-offs, and thus would not owe any taxes. However, a letter from the IRS stated that the amount was indeed owed. After Whitaker became executor and received letters of office on September 14, 2007, she made an inventory list of all the items in the storage units, with the assistance of her brother Jay, and made a list of items that were missing, including missing furniture, jewelry and flatware. Because the storage units were an estate matter, the storage facility double-locked the units and 16

1-09-3328 and 1-09-3451 (consolidated) did not allow Whitaker to open the units without the presence of someone from the facility. Whitaker took photos of the items and did not remove anything from the storage units. Prior to Whitaker becoming executor, only Elias, McDonnell and her husband had keys and access to the storage units. McDonnell responded to Whitaker's line-item missing pieces by stating either they were in her possession and were gifted to her, should be in storage, or she did not know where they were. McDonnell came into possession of a majority of the items she had after Elias moved to Illinois. McDonnell maintained that Elias gave her a blue lamp, gold crest ring, pearl ring, dining room table, and a highboy previously as gifts from Elias, as well as a secretary desk given to McDonnell by Elias as a gift from McDonnell's grandmother. McDonnell retained numerous items in her possession that she felt were "susceptible to theft," which were not discovered until June 9, 2008, when she brought the items to the storage units for appraisal. After Whitaker became executor, she also learned of the outstanding debts for Elias that were not paid, that Elias' LPL brokerage account had been completely withdrawn pursuant to the transfer-on-death document naming McDonnell as the sole beneficiary, and that the combined amount of money in Elias' remaining accounts was less than $3,000. Whitaker also learned that Elias' 2006 taxes were not filed because McDonnell did not ask the accountant to file the return. Whitaker discovered that the nearly $31,000 was owed because McDonnell instructed Turner to sell some of Elias' Exxon stock in 2006 and there was a capital gain. Turner told Whitaker that McDonnell had instructed him to sell the stock because there was a margin call. However, Whitaker discovered that there was no margin call. McDonnell claims Elias sold the stock. 17

1-09-3328 and 1-09-3451 (consolidated) Subsequently, Whitaker filed a petition to recover the assets McDonnell took. At trial, Dr. Daniel Marson, a professor and director in the department of neurology and Alzheimer's Disease Research Center at the University of Alabama at Birmingham, testified as McDonnell's expert. Marson also has a law degree. Marson acknowledged that Elias lacked contractual and financial capacity, but testified that "testamentary capacity requires the lowest level of mental capacity among the financial capacities that are discussed in the law." Marson opined that Elias probably had testamentary capacity on August 12, 2006, when she executed the transfer-on-death certificate designating McDonnell as the beneficiary, and that she was probably not subject to undue influence at that time. He opined that although Elias was "clearly" suffering from Alzheimer's at this time and "was on a path of decline," she must be accorded a presumption of capacity that has to be rebutted, and neither Dr. Forchetti nor Dr. Leahy evaluated Elias' testamentary capacity. Marson did not feel there was strong evidence of loss of such historical knowledge associated with testamentary capacity until March 2007. Marson relied on the deposition testimony of Dr. Forchetti wherein Forchetti indicated her belief that McDonnell was acting in Elias' best interest, as well as the testimony of Lax. However, in arriving at his opinion, Marson did not review the following: the medical records of Dr. King, including Whitaker's letters stating her concerns; Whitaker's deposition; and the deposition of Dr. Weise. Marson conceded that Elias missing car payments and being involved in an accident would be relevant considerations if they were related to incipient dementia, as would be Elias confusing Tuttera's daughter for her own granddaughter. Marson also conceded as relevant Dr. Leahy's note of September 12, 2006, indicating that Elias was not 18

1-09-3328 and 1-09-3451 (consolidated) aware of the place, month, day, date, or year. Marson further conceded it was relevant that when Elias went to an attorney on November 16, 2005, she made no changes to her will, but when Elias was alone with McDonnell on August 12, 2006, she executed the transfer-on-death document leaving her entire account to McDonnell. Marson conceded that it "is possible" that Elias lacked testamentary capacity, if he considered additional evidence that McDonnell was completely handling Elias' check writing and bill payments, and was assisting her with her medical treatment to the exclusion of other family members. The trial court found that Elias lacked the mental capacity to execute the transfer-on-death form for her LPL brokerage account, and entered judgment on August 11, 1009, ordering McDonnell to return $471,750 in cash and all personal property, except for the three items she already had, to Elias' estate. On November 19, 2009, the trial court also granted Whitaker's counsel's petition for attorney's fees in the amount of $201,227.50 and costs of $33,135.85, finding that these fees and costs were fair and reasonable, but ordered that they be assessed against the estate and did not grant Whitaker's supplemental petition requesting that the fees and costs be assessed against McDonnell. Both Whitaker and McDonnell appealed. ANALYSIS McDonnell appeals both the order allowing attorney fees and costs, and the judgment order of August 11, 2009, finding that Elias lacked mental capacity to execute the testamentary transfer of her LPL account and that McDonnell exercised undue influence to effect a fraudulent transfer. Whitaker cross-appeals only the order assessing attorney fees out of the estate and not against McDonnell personally. We discuss the appeal of the judgment order of August 11, 2009, 19

1-09-3328 and 1-09-3451 (consolidated) first. I. Judgment Finding Lack of Mental Capacity and Fraudulent Transfer and Undue Influence McDonnell appeals from the judgment of August 11, 2009, finding both lack of testamentary capacity and undue influence and seeks reversal of the order directing her to return to the estate $471,750 in cash and personal property and remand for a new trial. In a citation proceeding, the probate court is empowered to determine the title and right of property and enter such order as the case requires. In re Estate of Kolbinger, 175 Ill. App. 3d 315, 322, 529 N.E.2d 823, 827 (1988). The Probate Act of 1975 (Probate Act) (755 ILCS 5/1-1 et seq. (West 2008)) provides, in pertinent part: "(a) Upon the filing of a petition therefor by the representative or by any other person interested in the estate or, in the case of an estate of a ward by any other person, the court shall order a citation to issue for the appearance before it of any person whom the petitioner believes (1) to have concealed, converted or embezzled or to have in his possession or control any personal property, books of account, papers or evidences of debt or title to lands which belonged to a person whose estate is being administered in that court or which belongs to his estate or to his representative ***. *** (d) The court may examine the respondent on oath whether or not the petitioner has proved the matters alleged in the petition, may hear the evidence offered by any party, may determine all questions of title, claims of adverse title and the right of property and may enter such orders and judgment as the case requires." 755 ILCS 5/16-1(a), (d) (West 20

1-09-3328 and 1-09-3451 (consolidated) 2008). The objectives of a citation proceeding under the Probate Act are to obtain the return of personal property belonging to the estate but in the possession of, or being concealed by, others or to obtain information to recover estate property. In re Estate of Kolbinger, 175 Ill. App. 3d at 322, 529 N.E.2d at 827. To recover property in a citation proceeding, an executor must initially establish a prima facie case that the property at issue belongs to the decedent's estate; the burden then shifts to the respondent to prove his or her right to possession by clear and convincing evidence. In re Estate of Casey, 155 Ill. App. 3d 116, 121-22, 507 N.E.2d 962, 966 (1987). In the citation proceeding, Whitaker alleged that the LPL account money belonged to Elias's estate and sought to recover the funds by setting aside the LPL account transfer-on-death executed by Elias to transfer the funds to McDonnell. Dispositions of funds in payment-on-death accounts are testamentary dispositions. In re Estate of Gubala, 81 Ill. App. 2d 378, 382, 225 N.E.2d 646, 649 (1967). Such a disposition is often referred to as a "will substitute," defined by section 7.1 of the Restatement as "an arrangement respecting property or contract rights that is established during the donor's life, under which (1) the right to possession or enjoyment of the property or to a contractual payment shifts outside of probate to the donee at the donor's death; and (2) substantial lifetime rights of dominion, control, possession, or enjoyment are retained by the donor." (Internal quotation marks omitted.) Handelsman v. Handelsman, 366 Ill. App. 3d 1122, 1130, 852 N.E.2d 862, 869 (2006) (quoting Restatement (Third) of Property

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