{ "id": 3074870, "name": "FRANCISCAN SISTERS HEALTH CARE CORPORATION, d/b/a St. Elizabeth Hospital, Plaintiff-Appellee, v. JOHN R. DEAN, Indiv. and as Ex'r of the Estate of Elizabeth R. Messmer, Deceased, Defendant-Appellant.-(KATE FISK et al., Defendants.)", "name_abbreviation": "Franciscan Sisters Health Care Corp. v. Dean", "decision_date": "1981-12-10", "docket_number": "No. 16890", "first_page": "61", "last_page": "74", "citations": [ { "type": "official", "cite": "102 Ill. App. 3d 61" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "375 N.E.2d 508", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "511-12" } ], "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 269", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3357165 ], "pin_cites": [ { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0269-01" ] }, { "cite": "115 N.E.2d 226", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "230" } ], "opinion_index": 0 }, { "cite": "1 Ill. 2d 160", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5315286 ], "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/1/0160-01" ] }, { "cite": "122 N.E. 827", "category": "reporters:state_regional", "reporter": "N.E.", "pin_cites": [ { "page": "829" } ], "opinion_index": 0 }, { "cite": "287 Ill. 440", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4946491 ], "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/ill/287/0440-01" ] }, { "cite": "410 N.E.2d 1063", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. 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App. 3d", "case_ids": [ 3229695 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0402-01" ] }, { "cite": "136 N.E. 754", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1980, "opinion_index": 0 }, { "cite": "304 Ill. 586", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4998907 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill/304/0586-01" ] }, { "cite": "405 N.E.2d 799", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. 2d 105", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5480076 ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0105-01" ] }, { "cite": "287 N.E.2d 682", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "52 Ill. 2d 202", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5393210 ], "opinion_index": 1, "case_paths": [ "/ill-2d/52/0202-01" ] }, { "cite": "87 Ill. 2d 233", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3031179 ], "weight": 3, "pin_cites": [ { "page": "241" }, { "page": "239" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/87/0233-01" ] }, { "cite": "5 A.L.R. 3d 19", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1966, "pin_cites": [ { "page": "39" } ], "opinion_index": 1 }, { "cite": "357 N.E.2d 1128", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "1133" } ], "opinion_index": 1 }, { "cite": "65 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5436950 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "105" }, { "page": "105-06" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/65/0095-01" ] }, { "cite": "62 N.E.2d 473", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "476" }, { "page": "476" } ], "opinion_index": 1 }, { "cite": "391 Ill. 19", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2513402 ], "weight": 2, "pin_cites": [ { "page": "25-26" }, { "page": "25-26" } ], "opinion_index": 1, "case_paths": [ "/ill/391/0019-01" ] }, { "cite": "375 N.E.2d 102", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "pin_cites": [ { "page": "105" } ], "opinion_index": 1 }, { "cite": "71 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5449590 ], "year": 1973, "pin_cites": [ { "page": "272" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/71/0263-01" ] } ], "analysis": { "cardinality": 1454, "char_count": 37327, "ocr_confidence": 0.889, "pagerank": { "raw": 9.990310848915026e-08, "percentile": 0.5383767547837731 }, "sha256": "e7d89af400062d63f2e4c8349b3b8666333303e98648ea5bb3bd4f4b0cfbe14e", "simhash": "1:af87ec887786a666", "word_count": 6167 }, "last_updated": "2023-07-14T17:07:42.734695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FRANCISCAN SISTERS HEALTH CARE CORPORATION, d/b/a St. Elizabeth Hospital, Plaintiff-Appellee, v. JOHN R. DEAN, Indiv. and as Ex\u2019r of the Estate of Elizabeth R. Messmer, Deceased, Defendant-Appellant.\u2014(KATE FISK et al., Defendants.)" ], "opinions": [ { "text": "JUSTICE LONDRIGAN\ndelivered the opinion of the court:\nDefendant Dean, a lawyer, drafted what turned out to be Elizabeth Messmer\u2019s final will February 7, 1978; after making two small specific bequests Messmer gave the residue of her estate to Dean and St. Elizabeth Hospital, the plaintiff, in equal shares. Messmer died in St. Elizabeth Hospital April 10,1979, at the age of 97, and the will was later admitted to probate. According to the estate\u2019s Illinois inheritance tax return, Messmer died owning property and money worth almost $300,000; schedule E of the return shows that the hospital\u2019s and Dean\u2019s shares were each worth approximately $130,000. The plaintiff filed this suit to contest the will, alleging that Dean as drafter presumptively had exercised undue influence in obtaining his substantial legacy. The plaintiff sued to invalidate the entire will and not just Dean\u2019s legacy (cf. Williams v. Crickman (1980), 81 Ill. 2d 105, 405 N.E.2d 799 (permitting partial invalidation of wills)). Finding that Dean had not overcome the presumption of undue influence, the trial court invalidated the will. Dean appeals this decision, arguing that the trial court misunderstood the effect of the presumption and that his evidence rebutted it and supports the will.\nAt the outset of the trial the parties agreed that the pleadings admitted the existence of an attorney-client relationship between Dean and Messmer and that the will in question had been typed in Dean\u2019s office. The trial court entered orders of default as to the recipients of the two specific bequests, Chapman, who died before the start of the trial, and Castle, and also as to Messmer\u2019s heirs. Before hearing testimony the judge declared that the presumption of undue influence was in effect.\nBecause Dean\u2019s appeal focuses on the strength of the evidence adduced at trial, a rather detailed summary of the testimony is necessary; the parties provided a large amount of information regarding Messmer\u2019s health during the last several years of her long life and the relationship between Messmer and the Dean family. The plaintiff\u2019s first witness was Robert D. Acton, an attorney in Danville who knows Dean. Acton had done legal work for Messmer, including the preparation of two wills, from some time in the 1950s until some time in the 1970s, when he directed her to seek another lawyer because his continued representation of her posed a conflict of interest with his representation of another client. At some point between 1974 and 1979 Acton received a telephone call from Mrs. Messmer; in response he asked Dean to return to him a key to Messmer\u2019s safe deposit box; Dean did not do this. Acton saw Messmer April 3 or 4,1979, at the Americana Nursing Home in Danville; according to Acton she told him, \u201c \u2018I want you to arrange to have the Second National Bank look after my affairs. I want out from under the influence of Mr. Dean and want nothing more to do with him.\u2019 \u201d Acton then prepared a power of attorney, which Messmer signed, and delivered it to the Second National Bank of Danville. In the nursing home Messmer was hard of hearing but mentally alert; she was strong-willed. Acton said that Messmer had generally looked after her own business affairs. He also said, though, that Messmer had often received advice on business matters from Norman Dale, a local real estate broker, and that Messmer had generally followed Dale\u2019s advice. Acton said that \u201cby someone Messmer trusted she was easily influenced.\u201d In the two wills that Acton drafted for Messmer he had disposed of the property according to her instructions.\nKathy Omahen, who worked at the nursing home, was in the same room when Acton visited Messmer in April 1979; Omahen had telephoned Acton at Messmer\u2019s behest. Omahen confirmed what Acton testified to regarding his visits.\nViola Kersey, a private nurse, was in the nursing home with her patient when Acton stopped by to talk to Messmer. Kersey testified that Messmer told Acton that she wanted him to assume the management of her financial affairs; Acton asked, \u201c \u2018Are you sure? Mr. Dean has been your business advisor for awhile.\u2019 \u201d Messmer said that she was sure, and at that point Kersey left the room. The day when Kersey heard this conversation Messmer appeared disturbed about a recent matter: Mrs. Dean had visited Messmer several days earlier and had been rude to her; they had argued whether Messmer should live at home and pay persons to stay with her. Kersey did not know whether Messmer was still upset about that the day she talked to Acton.\nDon Fuller, vice-president, trust officer, and counsel for the Second National Bank of Danville, testified; he identified several exhibits, including a power of attorney signed April 5, 1979, authorizing him to transact certain business matters for Messmer.\nBessie K. Castle had lived across the street from Messmer since 1940 and was to receive a specific bequest under the will involved here. Castle testified that her friendship with Messmer became closer after Messmer\u2019s 90th birthday in 1971 or 1972, and that during the last two years Messmer was alive Castle visited her daily. According to Castle, the Dean family began to visit Messmer and dine out with her after Dean wrote a will for her, and these visits continued through the last year of Messmer\u2019s life; Messmer considered Dean a very competent attorney. Mrs. Dean usually was the one to telephone Messmer to invite her out. Castle testified that Messmer had regarded these calls as a nuisance and had generally declined the invitations; even when Messmer accepted them she would make a face as she talked on the telephone. Castle also testified that Messmer\u2019s mental and physical condition had remained about the same from 1972 until shortly before her death and described her as intelligent and opinionated. In the early 1970s Messmer did not have any close friends in Danville; one friend lived in Waukegan and another in Rockford. Castle also referred to trips that Messmer and the Deans had taken together during the 1950s. Messmer and the Deans\u2019 daughter went to Puerto Rico, and Messmer went to Florida with the entire family. After the 1950s Messmer traveled with others and was \u201coff the Deans.\u201d On Messmer\u2019s 97th birthday the Deans took a cake to her house. Messmer never spoke to Castle about her wills. The several times that Messmer needed to go to a hospital she went to St. Elizabeth.\nThe defendant\u2019s first witness was Edward Litak, who is an attorney in Danville and has known Dean since about 1950; the two men are acquaintances rather than friends. Litak testified that he spoke to Messmer February 7,1978, regarding her will. That day Dean went to Litak\u2019s office and asked him to witness a will that he, Dean, had drafted and that made him a beneficiary; Litak was immediately aware of the potential ethical problem and therefore was determined to interrogate Messmer longer and more thoroughly than he normally interrogates testators and testatrices. Litak called in his secretary, Julie Hembrey, and explained to her what he intended to do and advised her to listen carefully. Dean took Messmer and the will to Litak\u2019s office, introduced Messmer, and then left. For about 15 to 20 minutes Litak questioned Messmer to determine whether the will was voluntary and whether she was aware of the large legacy to Dean. Litak did not, however, discuss with Messmer the size of the legacy beyond referring to it as \u201csubstantial.\u201d Messmer understood that it was a large amount and explained that she was giving it to Dean because he was her attorney; she also said that she did not have any relatives to leave anything to. Litak repeated his questions but in different forms; he testified that she had the opportunity to reveal any impropriety in the preparation of the will but did not mention anything. Litak\u2019s questions concerned whether the will was voluntary, whether Messmer realized that Dean stood to receive a large amount under it, and whether she had been pressured into this. Litak did not read each provision of the will to Messmer; he explained at trial that when he witnesses a will he prefers not to discuss the dispositions because frequently persons do not like to reveal their financial matters to strangers. Thus he did not read the will to Messmer paragraph by paragraph and did not read it to himself; he did not know that Castle and Chapman were to receive bequests. During the interview Litak handed the will to Messmer for her to read. Litak did not advise Messmer about the tax consequences of the will or the role of an executor \u2014 the will named Dean executor. Litak also did not tell her about the ethical problems that arise when a lawyer drafts a will that makes him a beneficiary. Litak did, however, ask Messmer whether she knew that Dean was a beneficiary of the will, and he may have mentioned the hospital too. Although Messmer did not refer to the dispositions of her earlier wills, Litak was left with the impression from his conversations that day with either Messmer or Dean that this was the first of her wills to give anything to Dean.\nLitak testified to his belief that \u201cwithout question [Messmer] was acting freely and voluntarily and intelligently.\u201d In his opinion Messmer\u2019s mind was strong and she was intelligent and determined; when Litak met her he judged her to be in her early or middle sixties. Litak did not notice whether Messmer was wearing a hearing aid and at trial did not recall that she had had any difficulty hearing. Litak was not paid for interviewing Messmer, although he did receive the customary $25 fee for testifying when the will was admitted to probate. At the conclusion of his interview he, Messmer, and Hembrey each signed the will in the presence of each other. After this Litak spoke only briefly with Dean, handing him the document and saying something to the effect that this was the will that had been executed.\nJulie Hembrey also testified for the defendant. Hembrey did not hear Dean\u2019s initial conversation with Litak. Hembrey had never seen Messmer before nor did she see her later. According to Hembrey, Litak asked Messmer whether the will was hers, whether she realized that she was leaving something to Dean, and whether she was certain that she wanted to do that; Messmer replied affirmatively to all three questions. Litak read aloud the provision in the will concerning Dean. Litak also asked Messmer whether she had any close relatives or friends, other than Dean, that she wanted to benefit, and she said that she did not. Litak asked Messmer whether she and Dean were friends, and she said that they had been friends for about 20 years and that Dean was her attorney. Litak repeated these questions several times. At trial Hembrey did not recall any reference during the interview to St. Elizabeth Hospital. In Hembrey\u2019s opinion Messmer understood the contents of the will and realized what she was doing; Messmer was very alert, appeared to be younger than 90 years old, and did not have any difficulty walking or hearing. Like Litak, Hembrey received no compensation in connection with this except the witness fee given for her testimony in probate court. At trial Hembrey thought that Litak had referred during the interview to the specific bequests and not just to the provision concerning Dean, yet she did not remember hearing Castle, Chapman, or St. Elizabeth Hospital mentioned.\nDean\u2019s daughter, Gwendolyn Fish, and grandaughter, Diana Whitley, also testified in his behalf. Fish and Whitley knew Messmer for about 25 years; Messmer and the Dean family were friends and frequently traveled together; they took their last joint vacation sometime during the 1950s. Throughout the past three decades, and including the last five years of Messmer\u2019s life, Messmer and the Deans dined out together, usually about once a month. Their socializing did not increase during the last years of Messmer\u2019s life. Messmer gave the Deans gifts; Messmer bought some of these items with the intent to make a gift and bought other items for herself and then decided to give them away when she decided that they were unsuitable for herself. Messmer gave Dean and his granddaughter each a ring. Fish and Whitley visited Messmer in the nursing home about every other week; Dean and his wife visited more frequently. Messmer told Fish and Whitley that she had no relatives.\nDean\u2019s and his wife\u2019s testimony was presented in an offer of proof; the plaintiff\u2019s objection to this was sustained under the Dead Man\u2019s Act (Ill. Rev. Stat. 1979, ch. 51, par. 2). Dean does not attack this ruling here.\nThe plaintiff presented two rebuttal witnesses, Janet O\u2019Rourke and Neils Neilson. O\u2019Rourke lived next door to Messmer for 10 years; O\u2019Rourke did not specify which ten. According to O\u2019Rourke, Messmer was \u201csmall and frail\u201d and hard of hearing and could not see well; these problems worsened during the 10 years the two women were neighbors. Because O\u2019Rourke was frequently in her kitchen, where she could see Messiiier\u2019s yard and driveway, she often saw who was visiting Messmer. Castle went to Messmer\u2019s home every day, and Chapman, who mowed the lawn, stopped by almost as frequently. A friend from out of town visited Messmer about once a year. O\u2019Rourke saw Dean there \u201cvery occasionally\u201d; he visited more frequently during the last year of Messmer\u2019s life. O\u2019Rourke did not remember ever seeing Fish or Whitley next door.\nNeils Neilson lived across the street from Messmer for an unspecified length of time. After the death of Messmer\u2019s former advisor, Norman Dale, Neilson assumed that role. Several times Neilson\u2019s own business matters led him to have business dealings with her. At trial Neilson described Messmer as \u201can amazing woman up until four or five years ago, I would say\u201d; although she was small and frail, she was strong until that time. Her loss of hearing was \u201cquite advanced,\u201d and despite her hearing aid one had to speak to her loudly. Like O\u2019Rourke, Neilson was able to see who visited Messmer; Castle and Chapman were daily visitors; Dean _ visited, \u201cparticularly a year or so before [her] death.\u201d\nThe trial court admitted into evidence previous wills signed by Messmer; although Dean objected at trial to their admission, he does not dispute that here. Previous wills containing testamentary schemes that conflict with that of the contested will are admissible evidence of growing influence; their use is limited to this purpose. (Blackhurst v. James (1922), 304 Ill. 586, 136 N.E. 754; Kelley v. First State Bank (1980), 81 Ill. App. 3d 402, 401 N.E.2d 247.) In her immediately preceding will dated September 22, 1975, Messmer gave Dean her safe or vault and all its contents. On March 4, 1976, she executed a codicil to that will, naming Dean executor in place of the Second National Bank of Danville. Messmer\u2019s wills of March 10,1972, and November 25, 1974, do not mention Dean.\nOn October 16, 1980, the trial judge entered his written order. After summarizing the evidence and discussing the presumption of undue influence he concluded that Dean had not overcome the presumption and declared the will invalid. The judge also said:\n\u201cIn making this finding, the Court, as fact finder, realizes the evidence would not have been sufficient to upset the will if the presumption was not in existence. The Court, however, recognizes and agrees with the reasoning for the presumption.\u201d\nDean does not dispute that the facts here raise the presumption of undue influence. He drafted the will in question and stands to receive a substantial benefit from it; this much is sufficient. (In re Saladino (1978), 71 Ill. 2d 263, 375 N.E.2d 102; Breault v. Feigenholtz (1973), 54 Ill. 2d 173, 296 N.E.2d 3.) Dean argues that the evidence presented by him rebutted the presumption and that the court\u2019s decision is contrary to the manifest weight of the evidence. In his written order the trial judge rejected Dean\u2019s contention that the presumption of undue influence is rebutted by producing some evidence to the contrary; the court then quoted the following passage from Herbolsheimer v. Herbolsheimer (1977), 46 Ill. App. 3d 563, 566, 361 N.E.2d 134, 136:\n\u201cOnce the presumption of undue influence has been raised, the burden shifts to the proponents of the will to prove that the influence exerted over the testator was not so great that it overcame the will of the testator.\u201d\nThe trial judge construed this to mean that \u201cthe weight of the evidence or preponderance of evidence test would be the obligation of the proponents\u201d; the court also noted that early Illinois cases required clear and convincing evidence to overcome this presumption. The court also said, however, that \u201cthe evidence would not have been sufficient to upset the will if the presumption was not in existence.\u201d We hold that the trial court misconstrued the role of the presumption and incorrectly shifted onto Dean the burden of persuasion.\nPart of this confusion stems from Herbolsheimer s statement, quoted above, that when undue influence is presumed \u201cthe burden shifts to the proponents of the will to prove\u201d that the testator\u2019s volition was not overborne. In reaching this conclusion Herholsheimer cites generally to Tidholm v. Tidholm (1945), 391 Ill. 19, 62 N.E.2d 473; Tidholm said, however, that the presumption of undue influence:\n\u201c* * * casts upon the proponent, if he is to sustain the will, the necessity of showing that the execution of the will was the result of free deliberation on the part of the testator and of the deliberate exercise of his judgment, and not an imposition or wrong practiced by the trusted beneficiary. [Citations.] This, however, does not change the general rule, which is, that upon the whole case, the burden of proof is upon the contestant to establish undue influence by the whole evidence. [Citation.]\u201d (391 Ill. 19, 25-26, 62 N.E.2d 473, 476-77.)\nIn re Saladino (1978), 71 Ill. 2d 263, 272, 375 N.E.2d 102, 105, an attorney disciplinary proceeding, quoted approvingly a similar statement made in Dial v. Welker (1927), 328 Ill. 56, 63, 159 N.E. 286, 289, that evidence raising the presumption of undue influence \u201c \u2018casts upon the proponents, if the will is to be sustained, the necessity of producing evidence to show that its execution was the result of free deliberation on the part of the testator and of the deliberate exercise of his judgment.\u2019 \u201d Thus, in rebutting the presumption of undue influence the proponent\u2019s burden is one of production rather than persuasion.\nIn Diederich v. Walters (1976), 65 Ill. 2d 95, 357 N.E.2d 1128, the supreme court reaffirmed its earlier decision in McElroy v. Force (1967), 38 Ill. 2d 528, 232 N.E.2d 708, that Illinois follows the Thayer \u201cbursting bubble\u201d theory of presumptions. McElroy involved the presumption that the owner of a car is driving it when he is in it; Diederich dealt with the presumption that children seven to 14 years of age are incapable of being contributorily negligent. On appeal to the supreme court the plaintiff in Diederich argued that the trial court should have instructed the jury on the presumption even though the defendant had presented evidence rebutting it. Diederich held that rebutting evidence causes a presumption to evaporate. Once a presumption takes effect, the opposing party has the burden of producing evidence to rebut it:\n\u201cHowever, once evidence opposing the presumption comes into the case, the presumption ceases to operate, and the issue is determined on the basis of the evidence adduced at trial as if no presumption had ever existed. [Citation.] The burden of proof thus does not shift but remains with the party who initially had the benefit of the presumption.\u201d (65 Ill. 2d 95, 100-01, 357 N.E.2d 1128, 1130-31.)\nThat last sentence must be read narrowly: for \u201cburden of proof\u201d read \u201cburden of persuasion,\u201d and the rule is true only when the plaintiff is claiming the benefit of a presumption: a defendant whose presumption has been rebutted does not then have the burden of disproving the plaintiff\u2019s allegations. Diederich then cited Wigmore for the proposition that presumptions will dictate a particular result when unrebutted but dissolve when rebutted and Jones for the proposition that the jury ought not to be instructed on a presumption that has been rebutted. Thayer\u2019s theory regarding the effect of presumptions, the \u201cprevailing\u201d one, \u201chas generally been followed in Illinois.\u201d (65 Ill. 2d 95, 102, 357 N.E.2d 1128, 1131; see also McElroy.) Diederich distinguished the opposing position, the Pennsylvania or Morgan theory, that presumptions continue in force even after the production of rebutting evidence and form the basis for instructions to the jury.\nThus, Illinois observes an essential difference between presumptions and inferences; some inferences are occasionally incorrectly referred to as \u201cpermissive presumptions.\u201d (E. Cleary & M. Graham, Handbook of Illinois Evidence \u00a7302.2 (3d ed. 1979).) The fact-finder may in its discretion make the inference but in the absence of evidence to the contrary would have to take the presumption; thus, the party urging an inference is not entitled to a directed verdict, but the party urging a presumption is, when no rebuttal evidence is introduced; stated another way, a presumption shifts the burden of production but an inference does not. Furthermore, the rebuttal of a group of facts that gives rise to a presumption and supports an inference will cause the presumption to disappear but will not preclude the fact-finder from drawing the inference. E. Cleary & M. Graham, Handbook of Illinois Evidence \u00a7\u00a7302.1, 302.2 (3d ed. 1979); McCormick, Evidence \u00a7345, at 821 (2d ed. 1972).\nDiederich and McElroy are applicable to all presumptions and therefore govern here; in those opinions the court spoke broadly and did not limit the intended applicability of its rules to the two presumptions at issue.\nDiederich said only that \u201cevidence opposing the presumption\u201d will rebut it, without elaborating on what that quantum of evidence must be. (Shaver v. Berrill (1976), 45 Ill. App. 3d 906, 908, 358 N.E.2d 290, 292.) Consistent with the Thayer approach is the requirement that the opponent of the presumption produce evidence that is \u201csufficient to support a finding of the non-existence of the presumed fact.\u201d (Graham, Presumptions in Civil Cases in Illinois: Do They Exist? 1977 S. Ill. U. L.J. 1, 24.) This is also consistent with the language used in other cases involving fiduciaries (e.g., Zeilenga v. Stelle Industries, Inc. (1977), 52 Ill. App. 3d 753, 367 N.E.2d 1347) that presumptions of undue influence or fraud or unfairness must be rebutted with \u201cclear and convincing\u201d proof. When fact P is presumed, evidence that will support not-P constitutes clear and convincing proof in rebuttal. A defendant faced with a presumption has the burden of producing evidence to rebut it, not the burden of persuading the fact finder that facts Q, R, and S exist. The requirement of clear and convincing evidence cannot mean anything more than this. Measured by this standard, Dean\u2019s evidence was sufficient to rebut the presumption of undue influence. The key question here is Messmer\u2019s state of mind February 7, 1978, the day that she signed the will (Sterling v. Duhin (1955), 6 Ill. 2d 64, 72, 126 N.E.2d 718, 723); if she was not under Dean\u2019s influence at that time, then her earlier or later feelings toward Dean are irrelevant. Litak and Hembrey provided the only descriptions of Messmer on that day, and they both concluded that Messmer was acting of her own volition in making Dean a substantial beneficiary of her estate. This evidence was sufficient to rebut the presumption of undue influence. Although Litak did not advise Messmer in the sense of drafting another will for her (see, e.g., In re Estate of Stuhlfauth (1980), 88 Ill. App. 3d 974, 410 N.E.2d 1063), or in the sense of recommending an alternative disposition in her will or discommending the devise to Dean, he did question her thoroughly. Litak recognized the ethical problem involved here and undertook to determine whether the will represented Messmer\u2019s intent and not Dean\u2019s. We also note that Messmer was not survived by any close relatives and had few friends. She had known the Deans for years and had traveled with them, given them gifts, and dined with them. All the witnesses agreed that Messmer was determined and knew her own mind; she was alert and in good health. On this basis, then, we conclude that the evidence is sufficient to rebut the presumption of undue influence.\nThe inference of undue influence still remains, however, and the force of the inference will vary according to the evidence presented at trial. The statement in Wunderlich v. Buerger (1919), 287 Ill. 440, 445, 122 N.E. 827, 829, that \u201c[t]he strength of the presumption [of undue influence] and the amount of proof required to overcome it must depend upon the circumstances of each case\u201d is valid under Diederich and Thayer\u2019s theory only as a rule of inferences and not of presumptions: a presumption operates until it is rebutted, and when rebutted, it evaporates and has no further effect on the action. What remains is a factual question, and we remand the cause to the trial judge as trier of fact to assess the strength of the evidence.\nDean also argues that the trial court erred in permitting the plaintiff to open and close and in admitting Castle\u2019s testimony. Dean argues that because the pleadings admitted the facts necessary to raise the presumption, he should have been allowed to rebut it at the outset of the trial. We find the contrary to be true. Will contests are the products of statute (Mitchell v. Van Scoyk (1953), 1 Ill. 2d 160, 167, 115 N.E.2d 226, 230), and the statute provides:\n\u201cThe contestant shall in the first instance proceed with proof to establish the invalidity of the will. At the close of the contestant\u2019s case, the proponent may present evidence to sustain the will.\u201d Ill. Rev. Stat. 1979, ch. IIOJ2, par. 8 \u2014 1(c).\nDean mildly attacks the admission of Castle\u2019s testimony. The will in question here gives Castle $1,000 in cash; the immediately preceding will, dated September 22, 1975, gave her one-half of Messmer\u2019s household furnishings, which were worth slightly more than $1,100, according to an affidavit filed as part of her estate\u2019s inheritance tax return. Castle\u2019s testimony was therefore adverse to her pecuniary interest and admissible. In re Estate of Shanahan (1978), 59 Ill. App. 3d 269, 272, 375 N.E.2d 508, 511-12.\nReversed and remanded.\nGREEN, P. J., concurs.", "type": "majority", "author": "JUSTICE LONDRIGAN" }, { "text": "Mr. JUSTICE TRAPP,\ndissenting:\nWe deal with the fact that an attorney was a major beneficiary under a will which he drafted for his client. I must dissent from the majority opinion in its application of the Thayer hypothesis of the \u201cbursting bubble\u201d in the presumption of undue influence arising under the fiduciary relationship which exists as a matter of law.\nIt is the conclusion of the opinion that since Dean produced \u201csome evidence\u201d which might be considered to suggest a voluntary choice of the testator, and the plaintiff produced no specific evidence of undue influence in addition to the admitted presumption, the trial court erred in finding the issues for plaintiff. The majority have not sufficiently explored the depths of the Thayer hypothesis.\nThe annotation in Annot., 5 A.L.R. 3d 19, 39 (1966), quotes the Thayer expansion of the hypothesis as stated in J. Thayer, Evidence App.' B, at 575-76 (1898):\n\u201c(1) A presumption operates to relieve the party in whose favor it works from going forward in argument or evidence. (2) It serves therefore the purposes of a prima facie case, and in that sense it is, temporarily, the substitute or equivalent for evidence. (3) It serves this purpose until the adversary has gone forward with his evidence. How much evidence shall be required from the adversary to meet the presumption, or, as it is variously expressed, to overcome it or destroy it, is determined by no fixed rule. It may be merely enough to make it reasonable to require the other side to answer; it may be enough to make out a full prima facie case; and it may be a great weight of evidence, excluding all reasonable doubt. (4) A mere presumption involves no rule as to the weight of evidence necessary to meet it. When a presumption is called a strong one, like the presumption of legitimacy, it means that it is accompanied by another rule relating to the weight of evidence to be brought in by him against whom it operates.\u201d (Emphasis added.)\nAs so explicated, the \u201cbursting bubble\u201d of Thayer does not provide that \u201csome evidence\u201d in behalf of the proponent is necessarily sufficient to make the presumption valueless.\nThe position taken here was succinctly stated by Mr. Justice Goldenhersh in Diederich v. Walters (1976), 65 Ill. 2d 95, 105, 357 N.E.2d 1128. That opinion concluded that a particular presumption ceased \u201cto operate in the face of contrary evidence In dissent, it was stated:\n\u201cAssuming arguendo the correctness of the majority\u2019s conclusion the flaw in its treatment of the question is that it has attempted to apply the same rule to all presumptions whereas it is clear from the decisions of this court that all presumptions are not alike.\u201d 65 Ill. 2d 95, 105-06, 357 N.E.2d 1128, 1133.\nOne finds that 1 Card, Illinois Evidence Manual ch. II (1979) lists some 40 presumptions, in addition to statutory presumptions, which may be considered under the Thayer hypothesis. McCormick, Evidence \u00a7343, at 806-07 (2d ed. 1972), states that it is inappropriate \u201cto attempt to list the hundreds of recognized presumptions, \u00b0 \u00b0\nMcCormick states the nature, quality, and purpose for the creation of presumptions:\n\u201cA presumption shifts the burden of producing evidence, and as we shall see, under the preferable view operates to assign the burden of persuasion as well. Therefore naturally, the reasons for creating particular presumptions are similar to the considerations, which have already been discussed, that bear upon initial or tentative assignment of those burdens. Thus, just as the burdens of proof are sometimes allocated for reasons of fairness, some presumptions are created to correct an imbalance resulting from one party\u2019s superior access to the proof. * 0 e. Similarly, notions, usually implicit rather than expressed, of social and economic policy incline the courts to favor one contention by giving it the benefit of a presumption, and correspondingly to handicap the disfavored adversary.\u201d\nIn discussing the \u201cbursting bubble\u201d theory of the Thayer hypothesis, it is stated in McCormick:\n\u201cAs has been discussed, presumptions are frequently created in instances in which the basic facts raise a natural inference of the presumed fact. This natural inference may be sufficient to take the case to the jury, \u00b0 * * despite the resultant destruction of the presumption. \u00b0 McCormick, Evidence \u00a7345, at 821 (2d ed. 1972).\nThe text continues:\n\u201cPresumptions, as we have seen, have been created for policy reasons that are similar to and just as strong as those that govern the allocation of the burdens of proof prior to the introduction of evidence. These policy considerations generally persist despite the existence of proof rebutting the presumed fact. They may be completely frustrated by the Thayer rule when the basic facts of the presumption do not give rise to an inference that is naturally sufficient to take the case to the jury.\u201d McCormick, Evidence, \u00a7345 at 822 (2d ed. 1972).\nThe majority opinion cites controlling authority upon the established policy of the courts where a fiduciary relationship exists and a presumption of undue influence is created, i.e., the fiduciary is required to show that the execution of the will:\n\u201c[W]as the result of free deliberation on the part of the testator and of the deliberate exercise of his judgment, and not an imposition or wrong practiced by the trusted beneficiary.\u201d Tidholm v. Tidholm (1945), 391 Ill. 19, 25-26, 62 N.E.2d 473, 476.\nHappily, relatively few will contests include an issue where the testator\u2019s attorney drafts a will wherein he is a beneficiary. However, instances are found in attorney disciplinary proceedings. It may be argued that in a narrow sense, attorney disciplinary proceedings include factors not necessarily concerned in the decision here, i.e., \u201can obligation to avoid even the appearance of impropriety.\u201d\nIn In re Saladino (1978), 71 Ill. 2d 263, 272, 375 N.E.2d 102, 105, the supreme court agreed with the finding \u201cthat the evidence is not clear and convincing that respondent was actually carrying out complainant\u2019s wishes.\u201d That language is cited with approval in In re Barrick (1981), 87 Ill. 2d 233. In Barrick, the attorney drafted a will wherein the testator left to him a legacy from a substantial estate. The legacy was computed as the equivalent of his retainer fee for a period of five years. In a disciplinary proceeding, the supreme court found that although undue influence might have been presumed \u201cthe evidence established that there was none.\u201d (Emphasis supplied.) (87 Ill. 2d 233, 241.) Among the items of evidence noted was that the testimony showed that the attorney had emphasized his conflict of interest to the testator and pressed the testator to obtain other counsel to the point that the testator was offended and adamant. There was substantial evidence that the testator had received independent advice (Saladino; In re Anderson (1972), 52 Ill. 2d 202, 287 N.E.2d 682.) Barrick states that while the act of the attorney in drafting such a will may be proper in special circumstances \u201che should be prepared to prove later what really happened.\u201d 87 Ill. 2d 233, 239.\nUpon the conclusion that the Thayer hypothesis does not undertake to specify what quantum of evidence is required to rebut the presumption of undue influence, one finds that the cases cited as to both will contests and disciplinary proceedings establish a standard of evidence to rebut the presumption of undue influence which is much greater than the \u201csome evidence\u201d which is deemed sufficient in the conclusions of the majority. The standard of clear and convincing evidence found in the disciplinary proceedings is consistent with, and the equivalent of, the standard of Tidholm cited in the majority opinion as the \u201cnecessity of showing that the execution of the will was the result of free deliberation 0 * \u201c and of the deliberate exercise of his judgment \u201d * e.\u201d (Tidholm v. Tidholm (1945), 391 Ill. 19, 25-26, 62 N.E.2d 473, 476.) One may fairly conclude that notwithstanding the Thayer hypothesis, the supreme court has established that in cases of this character the proponent has the burden of persuasion, and that the rationale of the majority opinion is clearly inconsistent with the standard of proof required under these facts.\nThe evidence presented in support of this will clearly fails to rebut the presumption of undue influence arising from the attorney-client relation. An absence of close relatives is hardly proof that the bequest to Dean was a product of the testator\u2019s free and voluntary determination. Again, evidence that Dean and testator went to dinner once a month, or had in years past joined in vacation trips, is hardly persuasive evidence upon that significant issue. Such facts may equally be interpreted as a program to enlarge Dean\u2019s influence.\nTestator\u2019s interview with Mr. Litak prior to the execution of the will cannot fairly be called independent advice. Conceding that Litak made a conscientious effort to cope with an apparently unexpected, unclear, and embarrassing circumstance, one finds that testator was simply introduced by Dean and delivered to Litak to execute the will. Although Dean did not preside at the execution in a literal sense, he not only drafted the will, but procured its execution before strangers to the testator. It does not appear that Litak knew the contents of the will, or that he was in any way aware of the circumstances under which Dean became a major beneficiary. There is no basis to necessarily conclude that the testator would immediately disclose doubts, or fears to the strangers introduced to her some 20 minutes before the signing of the will.\nThe majority opinion emphasizes the language of the trial court concerning reliance upon the presumption to reach his decision. The statement is not remarkably significant for the reason that the plaintiff had no access to information concerning the substance and background of the transaction between the testator and Dean. The circumstances of the making of the will in this case are precisely the reason for which the presumption was created as a matter of policy. The quoted sentence of the trial court may fairly be interpreted to mean that the presumption of undue influence was not rebutted, and I would affirm.", "type": "dissent", "author": "Mr. JUSTICE TRAPP," } ], "attorneys": [ "F. Daniel Welsch, of Young, Welsch, Young & Hall, of Danville, for appellant.", "Sebat, Swanson, Banks, Lessen & Carman, of Danville (Hardin W. Hawes and Ralph J. Swanson, of counsel), for appellee." ], "corrections": "", "head_matter": "FRANCISCAN SISTERS HEALTH CARE CORPORATION, d/b/a St. Elizabeth Hospital, Plaintiff-Appellee, v. JOHN R. DEAN, Indiv. and as Ex\u2019r of the Estate of Elizabeth R. Messmer, Deceased, Defendant-Appellant.\u2014(KATE FISK et al., Defendants.)\nFourth District\nNo. 16890\nOpinion filed December 10, 1981.\nTRAPP, J., dissenting.\nF. Daniel Welsch, of Young, Welsch, Young & Hall, of Danville, for appellant.\nSebat, Swanson, Banks, Lessen & Carman, of Danville (Hardin W. Hawes and Ralph J. Swanson, of counsel), for appellee." }, "file_name": "0061-01", "first_page_order": 83, "last_page_order": 96 }