Freeman writes ruling that time limit only applies in will contests January 25, 2013 By Marc KarlinskySpecial to the Law Bulletin SPRINGFIELD — The Illinois Supreme Court today reversed lower court rulings in an estate dispute between two friends of a deceased man. Under state law, individuals get six months after a court receives a will to contest its validity. But in a unanimous nine-page opinion written by Justice Charles E. Freeman, the high court said that time limit does not apply to lawsuits that don't question the document's validity. If a plaintiff — who claims entitlement to a portion of the will — acknowledges that the will seems valid but challenges the actions of its executor, the lawsuit can't be considered a will contest, the high court ruled. "The single issue in a will contest is whether the document produced is the will of the testator," Freeman wrote. "The object of a will contest proceeding is not to secure a personal judgment against an individual defendant." The plaintiff, Colleen Bjork of Lafayette, Ind., filed suit in October 2010 after the death of her friend, Frank Dama of Des Plaines, involving Dama's will. In 2005, Dama began the process of adding Bjork as the pay-on-death beneficiary to his bank account. Later that same year, Dama signed powers of attorney to his friend, Frank O'Meara, and named him as executor and beneficiary of his estate. In the final few weeks of Dama's life in 2009, Bjork contacted bank officials about accessing Dama's account. Around the same time, O'Meara directed the bank to close the account and reopen it under a new number. The will went to Cook County Circuit Court for approval in March 2009 and Bjork filed a petition to claim the roughly $500,000 in Dama's bank account. But the bank's records did not indicate any of the changes from 2005 to put Bjork on the account. Bjork petitioned the court to depose a bank employee who could provide information supporting her claim to the account, but the court dismissed the petition. Today's ruling determined that the circuit court erred in its belief that it could not order the deposition of the bank employee, hindering Bjork's ability to participate in the probate proceeding. "The circuit court's error reduced the availability of probate relief to Bjork to mere speculation," Freeman wrote. "Since no adequate remedy was available through the probate proceeding, we conclude that Bjork's tort action was permissible." When the probate options got exhausted, Bjork sued O'Meara for interfering with her bequest, and Cook County Associate Judge Michael R. Panter dismissed Bjork's complaint on the premise that it got filed after the six month time limit. The 1st District Appellate Court unanimously affirmed the trial court's dismissal. The high court ruled that lower courts erred in applying the time limit because the issues of the case did not make it a will contest. Bjork's case now returns to the circuit court. Kurt J. LeVitus, owner of LeVitus Law Offices who represented Bjork, said his client is happy to have her case revived. "It was a well-reasoned opinion," LeVitus said. "We're ready to prove our case in court." O'Meara's attorneys, David P. Schippers, owner of David P. Schippers & Associates, and attorney Kris Daniel, were unavailable for comment. The case is Colleen Bjork v. Frank P. O'Meara, No. 114044.

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