{ "id": 2469050, "name": "In re ESTATE OF CHARLOTTE E. BARTH, a Disabled Person, Now Deceased (Joseph A. Benjamin et al., Appellants, v. Estate of Charlotte E. Barth et al., Appellees (The People ex rel. James E. Ryan, Attorney General of Illinois, Prospective Intervenor-Appellant))", "name_abbreviation": "Benjamin v. Estate of Barth", "decision_date": "2003-05-22", "docket_number": "Nos. 1-01-3652, 1-01-3653, 1-01-3681, 1-02-1779 cons.", "first_page": "651", "last_page": "669", "citations": [ { "type": "official", "cite": "339 Ill. App. 3d 651" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "270 N.E.2d 77", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1971, "pin_cites": [ { "page": "79" }, { "page": "79" }, { "page": "80" } ], "opinion_index": 0 }, { "cite": "133 Ill. App. 2d 790", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2474584 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "792" }, { "page": "792" }, { "page": "793" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/133/0790-01" ] }, { "cite": "618 N.E.2d 436", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "440" }, { "page": "440" }, { "page": "440" }, { "page": "442" } ], "opinion_index": 0 }, { "cite": "248 Ill. App. 3d 116", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2849975 ], "year": 1992, "pin_cites": [ { "page": "438-39" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0427-01" ] }, { "cite": "710 N.E.2d 385", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1999, "pin_cites": [ { "page": "387" }, { "page": "387" }, { "page": "388" }, { "page": "388" }, { "page": "389" }, { "page": "388" } ], "opinion_index": 0 }, { "cite": "186 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243909 ], "weight": 6, "year": 1999, "pin_cites": [ { "page": "193" }, { "page": "193" }, { "page": "194" }, { "page": "194" }, { "page": "196" }, { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0188-01" ] } ], "analysis": { "cardinality": 1255, "char_count": 39595, "ocr_confidence": 0.744, "pagerank": { "raw": 8.180275507057373e-08, "percentile": 0.4753132325475346 }, "sha256": "71d05ece9de14dcc5cbedbc5658dea9214860fe781ff68c5024e12874b1f236c", "simhash": "1:01bc721ddfc5ce41", "word_count": 6532 }, "last_updated": "2023-07-14T22:12:32.579911+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF CHARLOTTE E. BARTH, a Disabled Person, Now Deceased (Joseph A. Benjamin et al., Appellants, v. Estate of Charlotte E. Barth et al., Appellees (The People ex rel. James E. Ryan, Attorney General of Illinois, Prospective Intervenor-Appellant))." ], "opinions": [ { "text": "JUSTICE KARNEZIS\ndelivered the opinion of the court:\nIn this consolidated appeal, Teen Living Programs, Inc. (TLP), Joseph Benjamin (Benjamin) and the Attorney General of Illinois (the Attorney General), filing on behalf of the People of the State of Illinois as ultimate beneficiaries of any bequest to TLR a charitable organization, appeal from an order of the trial court denying TLP\u2019s and Benjamin\u2019s motions to vacate an \u201cAgreed Pre-Trial Settlement Order\u201d (agreed order) and the Attorney General\u2019s motion to intervene in the proceedings. The agreed order was entered in guardianship proceedings involving Charlotte E. Barth (Charlotte) and the Charlotte E. Barth Trust (the trust). The parties to the agreed order are Charlotte\u2019s guardian ad litem and court-appointed attorney Lynn Ostfeld (Ostfeld), Charlotte\u2019s son Roger Barth (Roger), Charlotte\u2019s daughter Rona Roe (Rona), and LaSalle Bank, the trustee of the Charlotte E. Barth Trust. The order declared Charlotte incompetent, appointed a guardian for her estate, invalidated an amendment she made to the trust, and made distributions from the trust and from the proceeds of a liquidated annuity. In addition, Benjamin appeals from an order of the trial court in Charlotte\u2019s decedent\u2019s estate dismissing, on res judicata grounds, his claim against Ostfeld challenging the validity of the agreed order.\nOn appeal, appellants argue that the court erred in denying their motions to vacate and intervene because the agreed order was void for the following reasons: (1) it affected their rights as beneficiaries under the trust, and therefore, as interested and necessary parties, they were entitled to notice regarding the proceedings which they did not receive; (2) the court lacked subject matter jurisdiction to enter the agreed order because (a) the only pleadings before the court concerned appointment of a guardian, not a petition to take estate planning measures pursuant to the Probate Act of 1975 (755 ILCS 5/1\u20141 et seq. (West 1998)) (Probate Act) and (b) Ostfeld had no statutory authority to agree to revoke the amendment; and (3) the order was procured by fraud. Benjamin also argues that, because the order denying his motion to vacate entered in the guardianship proceedings was still on appeal when the court dismissed his claim against the decedent\u2019s estate, that order was not final and res judicata did not apply. We reverse and remand both the court\u2019s order in the guardianship proceedings and the court\u2019s order in the decedent\u2019s estate proceedings.\nCharlotte established the trust in 1992, providing for her care during her lifetime. Upon her death, after certain bequests including a $25,000 bequest to Benjamin, the trust residual would go to Roger and Rona. In 1998, Roger and Rona filed a chancery suit against Charlotte and her then co-trustee Benjamin alleging mismanagement of the trust and breach of fiduciary duty. The court appointed former Illinois Supreme Court Justice Seymour Simon as guardian ad litem for Charlotte to determine her condition.\nJustice Simon interviewed Charlotte three times in February 1999 and once in March 1999. On March 10, 1999, Justice Simon filed a report stating that Charlotte was angry with Roger and Rona, she wished to have nothing to do with them because of their allegation in the chancery suit that she was not competent to make decisions, and she was fearful that Roger would assault her. Justice Simon did not think that Charlotte needed a guardian of either her person or her estate. However, because of Charlotte\u2019s memory lapses, he recommended that she receive help with her bill paying, an institutional co-trustee be appointed to the trust to serve with her, and an audit of her accounts be conducted. Pursuant to an agreed order, the court dismissed the chancery suit without prejudice on November 22, 1999.\nOn July 15, 1999, Charlotte changed the beneficiary of a $400,000 annuity from Roger and Rona to Benjamin.\nOn September 27, 1999, Charlotte executed amendment No. 3 to the trust, increasing Benjamin\u2019s bequest to $50,000 and substituting TLP as residuary beneficiary under trust, thereby eliminating Roger and Rona as beneficiaries.\nOn March 20, 2000, LaSalle Bank, as trustee of the trust, filed a petition for appointment of a private social service agency as guardian of Charlotte\u2019s person, stating that Charlotte was a disabled person due to \u201cdementia\u201d and unable to make responsible decisions concerning her care. On April 11, 2000, Rona filed a cross-petition requesting appointment of Roger as guardian of Charlotte\u2019s person.\nOn April 7, 2000, Charlotte liquidated the annuity of which Benjamin was the beneficiary and on April 19, 2000, deposited the $389,000+ proceeds into a joint account she held with Roger.\nIn connection with the guardianship proceedings, Dr. Steven Fox, D.O., interviewed Charlotte on February 11, 2000, February 23, 2000, and April 24, 2000. In his April 27, 2000, report, Dr. Fox found 90-year-old Charlotte \u201ctotally incapable of making financial, personal and medical care decisions,\u201d \u201chighly susceptible to patronization, exploitation and undue influence,\u201d and likely to require \u201csurrogate decision making for the remainder of her life.\u201d\nOn April 20, 2000, the court appointed Ostfeld as guardian ad litem for Charlotte to determine her condition. Ostfeld interviewed Charlotte on April 26, 2000, and filed a report on April 27, 2000, in which she recommended that the court appoint a plenary guardian for Charlotte\u2019s person and estate. Ostfeld stated that her opinion of Charlotte\u2019s capabilities was in conformity with Dr. Fox\u2019s report. Ostfeld reported that Charlotte expressed to Ostfeld that she would only accept Roger as guardian of her person, she wanted her money to go to her family and any decisions regarding her money should be made by family members who had worked for the money and deserved to have it.\nOn April 27, 2000, both LaSalle Bank and Rona were allowed to amend their petitions to request appointment of a guardian of Charlotte\u2019s estate as well as her person. In the same order, the court appointed Ostfeld as Charlotte\u2019s attorney and \u201cher powers and duties [were] expanded accordingly.\u201d\nOn June 5, 2000, Charlotte revoked amendment No. 3.\nOn June 10, 2000, at Ostfeld\u2019s request, Dr. Fox examined Charlotte again to further evaluate her capacity. He filed an addendum report reaffirming the need for a plenary guardian of her estate and person, \u201cin particular the need for a guardian of the estate, due to the overwhelming evidence of patronization, exploitation and undue influence, which rise to the level of reportable elder abuse and professional misconduct.\u201d\nOn September 21, 2000, the probate court transferred the case to calendar 14 for pretrial hearing or settlement. That same day, by agreement of the parties, the court appointed Roger plenary guardian of Charlotte\u2019s person. An October 10, 2000, joint pretrial statement filed by the parties makes clear that the only pleadings pending before the court were the petition and cross-petition for appointment of a plenary guardian of the estate. However, the statement also raised issues regarding Charlotte\u2019s competence when she executed amendment No. 3, whether legal fees should be paid and whether certain distributions could be made from the trust.\nOn October 16, 2000, the court entered the agreed pretrial settlement order, thereby appointing Roger as plenary guardian of Charlotte\u2019s estate; finding Charlotte incompetent when she executed amendment No. 3; voiding amendment No. 3; ordering payment from the proceeds of the liquidated annuity of legal fees to Ro\u00f1a and Roger\u2019s attorneys and to Ostfeld; putting the remaining proceeds from the annuity into a trust for Roger\u2019s use in his capacity as guardian; providing for payment of a one-time gift of $675,000 to Roger and Ro\u00f1a and yearly $10,000 gifts to Roger, Ro\u00f1a and Rona\u2019s daughter; forgiving a $200,000 loan the trust made to Roger and providing that the loan be considered an advance against Roger\u2019s residuary share of the trust; and indemnifying LaSalle Bank, Roger and Rona from claims each may have against the other.\nCharlotte died on November 6, 2000. On December 21, 2000, Roger, as guardian of Charlotte\u2019s estate, filed a petition to close the guardianship estate in lieu of filing an inventory and accounting.\nOn January 11, 2001, TLP orally made a motion for leave to appear in the proceedings regarding the petition to close the guardianship estate. The court granted TLP leave to appear as \u201clegatee under the 3rd Trust Amendment of the decedent\u2019s amended and restated trust agreement,\u201d \u201cno notice of the motion being given, but no objection thereto stated.\u201d \u201c[A]ll matters relating to the closing of the estate and the Agreed Pre-trial Settlement Order\u201d were again transferred to another calender for pretrial and/or settlement. On February 7, 2001, Benjamin sought leave to intervene.\nOn March 6, 2001, TLP filed a motion pursuant to section 2 \u2014 1401 of the Code of Civil Procedure (735 ILCS 5/2\u20141401 (West 1998)) to vacate the October 16, 2000, agreed order asserting that: (1) TLP as the residuary beneficiary under amendment No. 3, was entitled to prior notice of any action taken with regard to the trust; (2) the estate planning measures taken in the agreed order were done in violation of section 11a\u201418(a) of the Probate Act (755 ILCS 5/11a\u201418(a) (West 1998)); and (3) even if the proceedings were conducted in accordance with the requirements of the Probate Act, the court did not have subject matter jurisdiction to entertain the relief requested because no pleadings had been filed requesting the relief ultimately granted.\nBenjamin subsequently filed a motion for leave to adopt and incorporate TLP\u2019s motion to vacate or, in the alternative, to transfer the proceeds of the liquidated annuity to the estate. In addition to TLP\u2019s arguments, Benjamin asserted that Roger and Rona committed fraud upon the court, concealed facts from the judge and exercised undue influence over Charlotte; that Ostfeld breached her fiduciary duty to Charlotte; and that the court lost jurisdiction to decide claims against the estate upon Charlotte\u2019s death.\nOn June 14, 2001, the Attorney General petitioned the court for leave to intervene on behalf of the People of the State of Illinois as the ultimate beneficiaries of any bequest to a charity and to adopt and join TLP\u2019s motion to vacate. Roger and Rona filed motions to dismiss TLP\u2019s motion to vacate, Benjamin\u2019s motion to adopt and incorporate TLP\u2019s motion to vacate and the Attorney General\u2019s petition to intervene and adopt TLP\u2019s motion to vacate or, in the alternative, to deny the motions to vacate and intervene.\nOn September 6, 2001, following a hearing, the court allowed Benjamin\u2019s motion to adopt, denied the Attorney General\u2019s motion to intervene and denied TLP and Benjamin\u2019s motions to vacate. The court declared the motions to dismiss moot. TLI] Benjamin and the Attorney General timely appealed the order.\nThe basis for the court\u2019s decision denying TLP and Benjamin\u2019s motions to vacate and the Attorney General\u2019s motion to intervene was that it felt that the agreed order had been entered properly. We find that this determination could not be made without a full hearing regarding Charlotte\u2019s competence to make the estate planning decisions, which affected appellants\u2019 alleged beneficiary rights, and, as will be discussed below, TLP, Benjamin and the Attorney General were necessary parties to such a determination. Accordingly, we find that the court erred in denying TLP and Benjamin\u2019s motions to vacate and in denying the Attorney General\u2019s motion to intervene.\nAs a preliminary matter, we briefly address (1) Benjamin\u2019s argument that the court had no jurisdiction to consider the motions to vacate because the court\u2019s jurisdiction to supervise Charlotte\u2019s estate terminated with her death; and (2) appellees\u2019 arguments that TLP and Benjamin\u2019s motions to vacate were insufficient because TLP and Benjamin did not file petitions to intervene establishing due diligence and the absence of another adequate remedy. We find no error in the court\u2019s decision to consider the motions to vacate.\nBenjamin argues that the court\u2019s jurisdiction over the motions to vacate the agreed order terminated at Charlotte\u2019s death because the motions were brought in Charlotte\u2019s guardianship estate rather than her decedent\u2019s estate. \u201cThe general rule is that, upon the ward\u2019s [disabled person\u2019s] death, both the guardianship and the trial court\u2019s jurisdiction to supervise the ward\u2019s estate necessarily terminate.\u201d In re Estate of Gebis, 186 Ill. 2d 188, 193, 710 N.E.2d 385, 387 (1999). \u201cThe Probate Act accords with this general rule, providing that *** \u2018[t]he office of the representative of a ward terminates *** when the ward dies.\u2019 \u201d Estate of Gebis, 186 Ill. 2d at 193, 710 N.E.2d at 387, quoting 755 ILCS 5/24\u201412 (West 1996). It is clear from the Probate Act that it is the power of the ward\u2019s representative, the guardian, to collect claims for and pay out claims against the ward\u2019s estate which ends upon the ward\u2019s death. After the ward\u2019s death, that power rests with the executor or administrator of the estate and the guardian, in the role of \u201cadministrator to collect,\u201d has only the power to preserve the guardianship estate until an executor or administrator is appointed. Estate of Gebis, 186 Ill. 2d at 194, 710 N.E.2d at 388; 755 ILCS 5/24\u201419(a) (West 1998). Concomitantly, because the guardian is powerless to pay a claim filed against a deceased ward\u2019s guardianship estate, \u201cthe trial court supervising the guardianship estate is powerless to adjudicate such claims, as jurisdiction lies only where the court can grant the particular relief requested.\u201d (Emphasis omitted.) Estate of Gebis, 186 Ill. 2d at 194, 710 N.E.2d at 388.\nHere, the relief requested is well within the purview of the guardianship court to grant. When Charlotte died, the guardianship court\u2019s jurisdiction was confined to supervising the preservation of Charlotte\u2019s estate until her will was admitted to probate or letters of administration issued because that is what the guardian\u2019s duties were confined to. Estate of Gebis, 186 Ill. 2d at 196, 710 N.E.2d at 389. The intent of the Probate Act is that any claims for monies or bequests from the deceased ward\u2019s estate should be filed against the decedent\u2019s estate. Estate of Gebis, 186 Ill. 2d at 194, 710 N.E.2d at 388. Such are not the claims at issue here. Contrary to appellees\u2019 view, TLP or Benjamin\u2019s assertions are not \u201ctantamount to claims\u201d against Charlotte for changing her revocable inter vivos trust. Rather, TLP\u2019s assertions are of jurisdictional error by the court while Benjamin\u2019s are of fraud and undue influence against Roger and Ro\u00f1a and breach of fiduciary duty against Ostfeld.\nNeither TLP nor Benjamin is claiming against Charlotte herself or the estate. As TLP stated in its motion to vacate, \u201cIt is axiomatic that if Charlotte Barth herself had taken steps to revoke and set aside Amendment No. 3, without involvement of a court of law, she would have been entirely within her rights to change her estate plan as long as the change did not involve misconduct or a mistake of fact or law.\u201d The only claims here are for vacating an agreed order. Supervising the preservation of the guardianship estate would entail deciding purely procedural matters such as motions to vacate because, if the agreed order was vacated, the only result would be a return to the status quo existing prior to entry of the agreed order. If appellants, as alleged beneficiaries, then want to claim their share of the estate, they would file their claims against Charlotte\u2019s decedent estate. There was no error by the court in considering the motions to vacate. See Altieri v. Estate of Snyder, 262 Ill. App. 3d 427, 438-39, 633 N.E.2d 711, 718 (1992).\n\u20223 Section 2 \u2014 408 of the Code of Civil Procedure provides that, upon timely application, the court can allow an applicant to intervene in an action, either permissively or as of right. 735 ILCS 5/2\u2014408(a), (b) (West 1998). The purpose of section 2\u2014408 \u201cis to liberalize the practice of intervention so as to avoid, upon timely application, the re-litigation of issues in a second suit which were being litigated in a pending action.\u201d People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 57, 779 N.E.2d 875, 887 (2002). Therefore, \u201cintervention is usually allowed only before judgment\u201d (O\u2019Bannon v. Northern Petrochemical Co., 113 Ill. App. 3d 734, 737, 447 N.E.2d 985, 988 (1983)) and one \u201cmay not normally seek intervention after the rights of the original parties have been determined and a final decree entered\u201d (Citicorp Savings of Illinois v. First Chicago Trust Co. of Illinois, 269 Ill. App. 3d 293, 298, 645 N.E.2d 1038, 1044 (1995)). The decision to allow or deny intervention, whether permissively or as of right, is within the sound discretion of the trial court, and its judgment will not be reversed absent an abuse of that discretion. People ex rel. Birkett, 202 Ill. 2d at 58, 779 N.E.2d at 888.\nContrary to appellees\u2019 assertion, Benjamin did file a petition to intervene, on February 7, 2001. Although the record does not contain an order allowing Benjamin\u2019s petition to intervene, the court presumably granted the petition since the record shows that the court allowed Benjamin to file his motion to adopt and incorporate TLP\u2019s motion to vacate, allowed Benjamin to participate in the hearing on the motion and, ultimately, allowed the motion to adopt. The record contains no objections to the adequacy of Benjamin\u2019s petition to intervene nor do appellees assert that they made any such objections. Accordingly, appellees\u2019 arguments regarding the adequacy of Benjamin\u2019s 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\u2014 612(c) (West 1998).\nTLP did not file a petition to intervene. Bather, on January 11, 2001, it made an oral motion in the proceedings to close Charlotte\u2019s guardianship estate for leave to file an appearance. On January 12, 2001, the court entered an order granting the motion without objection and TLP filed its appearance. Subsequently, on February 9, 2001, the court set a briefing schedule giving TLP 21 days in which to file its motion to vacate. TLP filed its motion on March 6, 2001. The record does not reflect nor do appellees assert that they objected in the trial court to TLP\u2019s motion for leave to file an appearance, the court\u2019s giving permission to file the motion to vacate or TLP\u2019s filing of the motion to vacate on any grounds, let alone on the basis of the intervention statute. Accordingly, appellees\u2019 argument on this basis is waived.\nMoreover, 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 agreed order because only the petition for appointment of a guardian of Charlotte\u2019s estate was before the court at that time and determination of that issue would not affect TLP\u2019s beneficial interest.\nTLP and Benjamin filed their motions to vacate pursuant to section 2\u20141401 of the Code of Civil Procedure (735 ILCS 5/2\u20141401 (West 1998)). The purpose of a section 2 \u2014 1401 petition is to bring before the trial court facts not appearing in the record which, if known to the court at the time judgment was entered, would have prevented entry of the judgment. Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 457, 736 N.E.2d 179, 190 (2000). The petitioner 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 or defense to the trial court in the original action; and (3) due diligence in filing the section 2 \u2014 1401 petition. Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381, 1386 (1986).\nIf based on matters outside the trial record, a section 2 \u2014 1401 petition must be supported by sworn allegations of the party or parties having personal knowledge of the relevant facts, set forth 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 section 2\u20141401 relief must give notice to opposing parties pursuant to Supreme Court Rules 105 and 106 (134 Ill. 2d Rs. 105, 106). Padilla, 223 Ill. App. 3d at 1024, 586 N.E.2d at 313. It is within the sound discretion of the trial court whether to grant a section 2\u20141401 petition, and we will not disturb the court\u2019s judgment absent an abuse of that discretion. Airoom, 114 Ill. 2d at 221, 499 N.E.2d at 1386. We find that the court abused its discretion here.\nAppellees argue that TLP\u2019s section 2\u20141401 motion to vacate should have been dismissed as insufficient because TLP allegedly did not aver timeliness or due diligence in filing its 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\u20141401. However, we find that the requirements of section 2\u20141401 do not apply to TLP\u2019s motion to vacate.\nAn order, judgment or decree entered by a court without jurisdiction of the subject matter or the parties, or by a court which lacks the inherent power to make or enter the order involved, 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 re Estate of Steinfeld, 158 Ill. 2d 1, 12, 630 N.E.2d 801, 806 (1994). A motion attacking a judgment solely on the basis that it is void for lack of jurisdiction is not subject to the time limitations of section 2\u20141401 and negates the need to allege a meritorious claim or defense and due diligence; the requirements of section 2\u20141401 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, \u201call presumptions are in favor of the validity of the judgment attacked, and want of jurisdiction must appear on the face of the record. \u2019 \u2019 Scheller v. Trustees of Schools of Township 41 North, Range 12, East of Third Principal Meridian, 67 Ill. App. 3d 857, 866, 384 N.E.2d 971, 979 (1978). The record itself must furnish the facts which establish that the court acted without jurisdiction. In re Marriage of Stefiniw, 253 Ill. App. 3d at 201, 625 N.E.2d at 362.\nHere, TLP urged that the order should be vacated as void, asserting that the court lacked (1) personal jurisdiction because necessary parties affected by the order were not notified of the proceedings and (2) subject matter jurisdiction because (a) the court had no pleadings before it which requested the relief given and (b) the relief was not entered pursuant to the procedures set out in the Probate Act. TLP relied on the record to support its arguments and did not bring additional facts to the court\u2019s attention. Accordingly, because TLP challenged the agreed order solely on the basis of lack of jurisdiction evident from the record, its motion was not restricted by the requirements of section 2\u20141401 and we need not address appellees\u2019 arguments thereon. In re Estate of Steinfeld, 158 Ill. 2d at 19, 630 N.E.2d at 809.\nSimilarly, with regard to Benjamin\u2019s motion to vacate, the jurisdictional arguments he adopted from TLP\u2019s 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 of section 2\u20141401. 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, and alleged breach of fiduciary duty by Roger and/or Ostfeld. These allegations are not apparent from the record. \u201cWhere a motion to vacate a judgment is predicated upon error which is not apparent from the record and requires proof by other evidence, the party seeking to vacate the judgment must proceed under section 2\u20141401 and must comply with all of the requirements set forth in that section.\u201d In re Marriage of Stefiniw, 253 Ill. App. 3d at 201, 625 N.E.2d at 362. Accordingly, the requirements of section 2\u20141401 apply to these arguments.\nA petition for relief from judgment alleging fraud, undue influence or incompetence is insufficient as a matter of law unless verified or supported by affidavit. Storcz v. O\u2019Donnell, 256 Ill. App. 3d 1064, 1069, 628 N.E.2d 677, 681 (1993). Benjamin did not attach an affidavit or other supporting evidence to his motion and there is no evidence in the record to support his fraud allegations. These unsupported, conclusoiy allegations are inadequate to meet the requirements of section 2\u20141401 and insufficient to warrant relief under that section, and the trial court acted properly in denying the relief requested therein. Storcz, 256 Ill. App. 3d at 1070, 628 N.E.2d at 681.\nWhether TLP and Benjamin prevail on their claims that the agreed order is void for lack of jurisdiction is irrelevant to a determination of whether the requirements of section 2\u20141401 restrict their motions. In re Estate of Steinfeld, 158 Ill. 2d at 19, 630 N.E.2d at 809. It is sufficient that they challenged 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\u20141401 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 to vacate without a full hearing regarding Charlotte\u2019s competence to execute amendment No. 3.\nIn their motions to vacate, Benjamin and TLP argue that the agreed order is void for three reasons: (1) lack of personal jurisdiction because the order affected the interests of necessary parties who had not been notified of the proceedings; (2) lack of subject matter jurisdiction 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 the requirements of the Probate Act. The crucial determination is whether TLP and Benjamin were necessary parties to the agreed order. If they were necessary parties, the agreed order is void and 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\u2019s second and third arguments.\n\u201c[Bjeneficiaries of a trust are necessary parties to an action to foreclose their interest,\u201d unless their interests are represented by others such that they receive actual and efficient representation or they are so numerous that it would be oppressive and burdensome to name them. Schlosser, 218 Ill. App. 3d at 947, 578 N.E.2d at 1205, citing Illinois National Bank of Springfield v. Gwinn, 390 Ill. 345, 356, 61 N.E.2d 249, 254-55 (1945), and Village of Lansing v. Sundstrom, 319 Ill. 121, 125, 39 N.E.2d 987, 989 (1942). \u201cThe beneficiary is a necessary party because he has the equitable and ultimate interest to be affected by the decree.\u201d Illinois National Bank of Springfield, 390 Ill. at 356, 61 N.E.2d at 255. If beneficiaries are deemed necessary 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 TLP and Benjamin were beneficiaries of Charlotte\u2019s trust. If they were beneficiaries, then it must be determined whether they were necessary parties to the agreed order.\nCharlotte executed amendment No. 3 on September 27, 1999, arguably creating a beneficial interest for TLP (and concomitantly, the Attorney General) and increasing Benjamin\u2019s beneficial interest. The agreed order voided the amendment because Charlotte was, allegedly, incapable when she executed it. However, we find no evidence in the record from which the court could have made this determination. There is some evidence of Charlotte\u2019s capacity six months before executing the amendment (Justice Simon\u2019s report filed on March 10, 1999) and seven months after executing the amendment (Dr. Fox\u2019s report and Ostfeld\u2019s report, both filed on April 27, 2000). There is no evidence of Charlotte\u2019s mental capabilities between the date Justice Simon filed his report on March 10, 1999, and the date that Dr. Fox first interviewed Charlotte on February 11, 2000, let alone for the specific date on which she executed the amendment, September 27, 1999. \u201cSince 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.\u201d Wiszowaty v. Baumgard, 257 Ill. App. 3d 812, 816, 629 N.E.2d 624, 629 (1994). There is no evidence one way 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 No. 3 could not be determined from the evidence presented.\nBenjamin already had a beneficial interest prior to amendment No. 3. Amendment No. 3 merely doubled his interest. However, TLP\u2019s and Benjamin\u2019s interests were arguably eliminated and/or reduced by Charlotte\u2019s revocation of the amendment. The agreed order makes bare mention of the revocation given the order held amendment No. 3 to be invalid. Accordingly, if the court determines that Charlotte was competent when she executed the amendment, in order to determine whether TLP had a beneficial interest and whether Benjamin\u2019s beneficial interest was increased, it must then determine Charlotte\u2019s capacity when she executed the revocation. If Charlotte was incapable when she executed the revocation, the revocation is invalid, TLP\u2019s and Benjamin\u2019s financial interests pursuant to amendment No. 3 were not affected by the purported revocation and they were beneficiaries of the trust when the agreed order was entered.\nAs beneficiaries, unless they received adequate representation by others during the proceedings, failure to name TLP and Benjamin as necessary parties rendered the agreed order void. Schlosser, 218 Ill. App. 3d at 949, 578 N.E.2d at 1207. Again, this is a question of fact to be determined by the trial court. If the court finds that TLP and Benjamin were necessary parties, then the court lacked personal jurisdiction over the parties because it entered the agreed order without notice to all necessary parties'and the agreed order is void.\nWe 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 her execution of amendment No. 3, there is no record of Charlotte\u2019s mental state at that time. Justice Simon filed his report four months earlier, on March 10, 1999, while Dr. Fox and Ostfeld filed their reports nine months after the change, on April 27, 2000. Moreover, Charlotte liquidated the annuity on April 7, 2000, and her incapacity on that date is also in question. Therefore, whether Benjamin was ever the beneficiary of the annuity or remained the beneficiary such that he was entitled to notice of the proceedings regarding the agreed order, given its impact on the proceeds of the annuity, should be determined by the trial court. Accordingly we remand to the trial court for a determination of whether TLP was a beneficiary under the trust and necessary party to the agreed order, whether Benjamin was beneficiary under the annuity, and whether Benjamin was a necessary party to the agreed order pursuant to either the trust or the annuity.\nWe find similarly with regard to the Attorney General\u2019s petition to intervene. The Attorney General filed his petition to intervene on behalf of the People of the State of Illinois as the ultimate beneficiaries of any bequest to a charity.\n\u201c \u2018[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 the construction of the trust instrument. In a suit by others where the validity or the enforcement of a charitable trust may come into question the Attorney General should be made a party defendant.\u2019 \u201d In re Estate of Stern, 240 Ill. App. 3d 834, 837, 608 N.E.2d 534, 536 (1992), quoting In re Estate of Tomlinson, 65 Ill. 2d 382, 387, 359 N.E.2d 109, 111 (1976).\n\u201c[F]unds which are appropriated for the benefit of society at large are considered to be held in a charitable trust, over which the Attorney General has regulatory authority. There is no requirement that express trust language be used to qualify the funds as a \u2018charitable trust.\u2019 \u201d In re Estate of Stern, 240 Ill. App. 3d 834, 837, 608 N.E.2d 534, 536 (1992). Here, TLP is the charitable organization in question. If TLP was a necessary party to the proceedings concerning the agreed order, the Attorney General could properly intervene on behalf of the People in this action to determine the validity of Charlotte\u2019s bequest. Accordingly, the court erred in denying the Attorney General\u2019s petition to intervene and we remand to the trial court pending its determination of TLP\u2019s status.\nLastly, we consider Benjamin\u2019s claim in Charlotte\u2019s decedent estate. Benjamin filed the claim against the estate, the trust, Roger, Rona, LaSalle Bank, Roger and Rona\u2019s attorney and his law firm, and Ostfeld and her law firm. He accused them of fraud, contested the validity of the agreed order, contested the validity of Charlotte\u2019s liquidation of the annuity and of her purported change in its beneficiary, and requested imposition of a constructive trust on the proceeds of the liquidated annuity held by any party, including any legal fees paid to Ostfeld. The court granted Ostfeld\u2019s motion to dismiss Benjamin\u2019s claim against her and her firm, finding \u201clack of subject matter jurisdiction based on the court order of Oct., 2000 and res judicata.\u201d Benjamin appeals that order, arguing that the court should not have granted the dismissal on res judicata grounds because his appeal from the order dismissing his motion to vacate the agreed order in the guardianship case was still pending.\nThe doctrine of res judicata bars relitigation of a cause of action between the same parties after a final judgment on the merits has been rendered by a court of competent jurisdiction. 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 actually decided 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 subsequent claim 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.\nBenjamin\u2019s cause of action and claims in the decedent\u2019s estate are essentially the same as asserted in his motion to vacate the agreed order filed in the guardianship proceedings, filed against the same parties and alleging the same issues or issues that could have been raised in the guardianship proceedings. The question, therefore, is whether the guardianship court\u2019s denial of Benjamin\u2019s motion to vacate is a final judgment for purposes of res judicata. We find that it is. The court held a full hearing on the motions to vacate and issued an order resolving the matter with finality: it dismissed the motion to vacate, thereby finding the agreed order valid and, concomitantly, liquidation of the annuity to be valid given that the legal fees were paid from the annuity and the balance of the proceeds was put into trust. Although Benjamin appealed the denial of his motion to vacate, \u201ca final judgment can serve as the basis to apply the doctrines of res judicata and collateral estoppel even though the judgment is being appealed.\u201d Illinois Founders Insurance Co. v. Guidish, 248 Ill. App. 3d 116, 120, 618 N.E.2d 436, 440 (1993), citing Wiseman 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\u2019s order denying Benjamin\u2019s motion to vacate does not bar use of that order for purposes of res judicata.\nHowever, where the judgment in one case is being appealed, conflicting judgments can result from allowing the judgment in that case to serve as the basis for res judicata in a second case since the judgment in the first case could be reversed on appeal. Illinois Founders Insurance 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. \u201c[T]he only means of avoiding such conflicting judgments is to delay a decision in the second suit pending a decision on the appeal of the first.\u201d Illinois Founders Insurance Co., 248 Ill. App. 3d at 121, 618 N.E.2d at 440. Where, as here, the court in the second case did not delay its judgment pending a decision in the appeal of the first case, we will generally reverse and remand the judgment in the second case with directions to stay proceedings 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\u2019s denial of Benjamin\u2019s motion to vacate) to the trial court for a full hearing on the 2\u20141401 petition. Therefore, we reverse and remand the judgment in the second case (dismissal on basis of res judicata) with directions to the court to stay its proceedings until resolution of the case in the guardianship proceedings.\nFor the reasons stated above, we (1) reverse and remand the trial court\u2019s denial of TLP and Benjamin\u2019s motions to vacate and its denial of the Attorney General\u2019s motion to intervene in the guardianship proceeding and (2) reverse and remand the dismissal of Benjamin\u2019s claim in the decedent estate proceeding with directions to stay proceedings pending resolution of the proceedings in the guardianship case.\nReversed and remanded.\nTHEIS, EJ., and GREIMAN, J., concur.", "type": "majority", "author": "JUSTICE KARNEZIS" } ], "attorneys": [ "Rieck & Grotty, EC., of Chicago (Jerome F. Grotty, Kevin E Brown, and Maria E. Fardo, of counsel), for appellant Joseph A. Benjamin.", "Chuhak & Tecson, EC., of Chicago (Daniel F. Marren, of counsel), for appellant Teen Living Programs, Inc.", "James E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Floyd D. Perkins, Therese Harris, and Matthew D. Shapiro, Assistant Attorneys General, of counsel), for appellant People ex rel. James E. Ryan.", "Lynne R. Ostfeld, EC., of Chicago (Lynne R. Ostfeld, of counsel), appellee pro se.", "Peck, Bloom, Miller & Mitchell, of Chicago (Kerry R. Peck, Ray J. Koenig III, and Marisa T. Cipolla, of counsel), for appellee LaSalle Bank, N.A.", "Hauselman & Rapping, Ltd., of Chicago (Martin F. Hauselman and Rhoda E. Markovitz, of counsel), for other appellees." ], "corrections": "", "head_matter": "In re ESTATE OF CHARLOTTE E. BARTH, a Disabled Person, Now Deceased (Joseph A. Benjamin et al., Appellants, v. Estate of Charlotte E. Barth et al., Appellees (The People ex rel. James E. Ryan, Attorney General of Illinois, Prospective Intervenor-Appellant)).\nFirst District (4th Division)\nNos. 1-01-3652, 1-01-3653, 1-01-3681, 1-02-1779 cons.\nOpinion filed May 22, 2003.\nRieck & Grotty, EC., of Chicago (Jerome F. Grotty, Kevin E Brown, and Maria E. Fardo, of counsel), for appellant Joseph A. Benjamin.\nChuhak & Tecson, EC., of Chicago (Daniel F. Marren, of counsel), for appellant Teen Living Programs, Inc.\nJames E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Floyd D. Perkins, Therese Harris, and Matthew D. Shapiro, Assistant Attorneys General, of counsel), for appellant People ex rel. James E. Ryan.\nLynne R. Ostfeld, EC., of Chicago (Lynne R. Ostfeld, of counsel), appellee pro se.\nPeck, Bloom, Miller & Mitchell, of Chicago (Kerry R. Peck, Ray J. Koenig III, and Marisa T. Cipolla, of counsel), for appellee LaSalle Bank, N.A.\nHauselman & Rapping, Ltd., of Chicago (Martin F. Hauselman and Rhoda E. Markovitz, of counsel), for other appellees." }, "file_name": "0651-01", "first_page_order": 667, "last_page_order": 685 }