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Estate Battles Turns on the Meaning of the Phrase “Survivors”

An interesting recent Illinois appellate court decision from the First District addressed who may inherit from a testator’s estate when one of the named beneficiaries dies before the testator, with the outcome turning on the meaning of “survivors” as written in the will.  Albert Lello, who passed away in 2012, drafted a will leaving his entire $8.2 million estate to his wife and two sisters “in equal shares, or to the survivor or survivors of them.” One sister, Virginia H., predeceased him by seven months. Her four children argued that “survivors” referred to them as the survivors, or heirs, of one of Albert’s named beneficiaries, and they should inherit what would have been her one-third share. The Cook County probate court and First District appellate court disagreed, siding with the two surviving beneficiaries, Albert’s widow and sister Rita S., who argued that the will unambiguously created a class gift that could only be inherited by surviving members of that class.

In 2013, Virginia’s children filed a petition for construction of the will, alleging that Albert would have intended them to inherit Virginia’s share because of the close relationship they shared with him and the fact that he had no children of his own, and that ambiguity in the will as to the “survivors” language should be construed in their favor under state laws of intestate succession. After further motions by both sides, the probate court entered an order finding the will unambiguous as a matter of law.

On appeal, the appellate panel affirmed the probate court’s conclusion that the phrase in the will, “to share and share alike in equal shares or to the survivor or survivors of them” (emphasis added) established a class gift so that Albert’s widow and surviving sister were entitled to Virginia’s share of the estate. Although Albert’s legatees were each specifically named, which would ordinarily indicate an intent to create an individual and not a class gift, the court found that the inclusion of the survivorship language negated this rule. The court cited Illinois statute, 755 ILCS 5/4–11(b), which provides if any class member dies before the testator, the surviving members take the share of the legacy that the deceased would have taken. Further, the court noted that case law and common law have construed the term “survivor” used in conjunction with a class gift to refer to the remaining named members of the class and not the survivors of a deceased member.

To support its holding, the court cited Waugh v. Poiron (315 Ill. App. 78 (1942)), which had virtually identical circumstances and language. There, the testator’s intent in the disputed will turned on the phrase “to the survivor of them [the named beneficiaries],” which is similar to the phrasing in the Lello case. The court also cited a 1976 case, Estate of Carlson (39 Ill. App. 281), which contained similar survivorship language and where the court found an unambiguous class gift. Writing for the panel, Judge Robert Gordon wrote that the arguments of the Lello petitioners in attempting to distinguish the two cases were unpersuasive. Gordon also rejected petitioners’ claim that their case was analogous to the more recent case of Estate of Garrett (325 Ill. App. 3d 123 (2001)), where the court found similar but not identical language in a will ambiguous because of the wording surrounding it. For instance, in Garrett, the testator had designated a specific percentage of his estate to be apportioned to each named legatee. Such an apportionment was not present in Albert’s will; rather, the share that his legatees received would depend on how many of them survived at the time of his death.

Source:  In re Estate of Albert Lello, IL App (1st) 142500 (2016)Super Lawyers named Illinois business trial attorneys Peter Lubin and Vincent DiTommaso Super Lawyers in the Categories of Class Action, Business Litigation and Consumer Rights Litigation. DiTommaso Lubin Austermuehle’s Illinois business trial lawyers have over a quarter of century of experience in litigating complex class action, copyright, non-compete agreement, trademark and libel suits, consumer rights and many different types of business and commercial litigation disputes including lawsuits between businesses or between shareholders and owners of the same business.  Our Oak Park and Evanston business dispute lawyers handle emergency business law suits involving copyrights, trademarks, injunctions, and TROS, covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. Our Chicago business trial and business dispute attorneys also assist businesses and business owners who are victims of fraud. You can contact us by calling (630) 333-0000 or our toll free number (877) 990-4990.  You can also contact us online here.