Brother Against Brother
The Illinois Administrator has charged an attorney with misconduct in successfully convincing his mother to disinherit his brother
He allegedly wrote the will
On or about April 14, 2004, then 75-year-old Margaret signed a document entitled “Last Will and Testament” (“Will”) which Respondent prepared. The Will, which named Respondent as executor, included a disinheritance clause which excluded Margaret’s other son, William, in favor of the entire estate being distributed solely to Respondent, as sole legatee. Margaret’s prior will distributed her estate equally between William and Respondent.
From approximately 2004 through May 25, 2010, Respondent performed many legal or financial functions for Margaret, including the preparation of documents related to her legal and financial affairs, preparation of tax filings, preparation of her Power of Attorney for Healthcare, and the Will.
After she passed away
On September 2, 2011, William brought an action contesting the Will in Kane County, docket number 10 P 594, alleging that Margaret lacked the testamentary capacity to make her will and that Margaret had been unduly influenced by Respondent, in the execution of that document.
On February 7, 2014, subsequent to hearing testimony in the will contest, the Honorable David Akemann set aside the Will and made the following findings:
a) a fiduciary relationship existed between Margaret and Respondent;
b) Respondent drafted the Will;
c) Margaret reposed great trust and confidence in Respondent placing legal and financial affairs in his hands, depositing legal documents with Respondent for safekeeping;
d) Respondent was the dominant party and Margaret the dependent party;
e) Respondent exerted undue influence over Margaret; and
f) There had been no testimony that Margaret chose to disinherit William.
A second count involves alleged false deposition testimony
During his deposition, Respondent was asked the following questions by William’s attorney, Linda Stroschein, regarding Margaret’s Will, and Respondent gave the following answers:
Q. And what were the circumstances surrounding the time when you saw it in the summer of 2004? (P. 19, L. 3-5)
A. My recollection is that my mother mailed me the original of this document for safekeeping. (P. 19, L. 6-8)
Q. Why did you mother send you the original of this will?
(P. 19, L. 16-17)
A. She stated to me that she sent to me for safekeeping. (P. 19, L. 18-19)
Q. Do you know who prepared this will? (P. 20, L. 18)
A. I do not. (P. 20, L. 19)
Q. Did you prepare this will for her? (P. 21, L. 16)
A. No. (P. 21, L. 17)
Q. Did you provide this form for her? (P. 21, L. 18)
A. No. (P. 21, L. 19)
The answers given by Respondent during his deposition on July 27, 2011, as set forth above…were false, and Respondent knew the statements were false.
Respondent knew his answers…above, were false because Respondent prepared Margaret’s will.
On January 15, 2014, Respondent was called as an adverse witness at trial in case number 10 P 594 and testified under oath that: he had prepared the Will for Margaret to provide the entire estate to himself to the exclusion of his brother William; that Respondent sent letters to and prepared various beneficiary forms from MetLife and AIG which changed the beneficiaries of policies held by those companies, thereby excluding William and naming Respondent as sole beneficiary of assets from MetLife and AIG; causing the majority of Margaret’s assets, both probate and non-probate assets, to pass to Respondent and causing the disinheritance to William.
(Mike Frisch)