If you're pulling for the family of Ernie Banks in their dispute with his long-time caretaker over his estate, know this: The widow will fare well no matter what, and the children have some tools to work with (though the best one is too new to be available to them).
The facts: Mr. Cub died on January 23, 2015 in Chicago at the age of 83. A wife and three children survived him. The wife secured appointment as the administrator of the estate (which implies that he died without a will). Then the caretaker filed a will made in October of 2014 that named her the executor and gave all the property to a trust that she controls. A will of that kind is fairly common and is known as a "pour-over will": The probate estate pours over into a trust. Details of the trust have not been reported, which is one of the virtues of having a trust - privacy: Trusts do not go through probate as wills do.
The wife will do all right in this contest no matter what. A spouse cannot be disinherited. At minimum, the wife can exercise her right to renounce the will and thereby receive one-third of the property (the share would be one-half if there were no descendants). (See 2-8 of the Probate Act of 1975 (755 ILCS 5/2-8)). (Of course, that right can be waived pursuant to a pre-nuptial agreement.)
The children have no right of renunciation. Their recourse is to contest the will on the basis of some defect in the making, signing, or witnessing of it. For instance, these facts invite a challenge on the "composite theories" of undue influence and incompetence: The will was made only three months before Ernie Banks died, and he had dementia, according to the death certificate. He put great trust and confidence in the caretaker, who has ended up with total control of the property (if not ownership of it). The will was prepared by a suburban attorney who apparently had no prior relationship with the ballplayer but only with the caretaker.
However, Ernie Banks had every right to give his property away as he pleased, and it is not illegal to be 83 years old. The law presumes that he was competent when he made that will, and the burden is upon challengers to the will to rebut that presumption.
Which gets to the aforementioned point about a "tool" that is too new to be available to the children of Ernie Banks. Today certain transfers of property to caregivers are presumptively void. Public Act 98-1093, which added Article 4a to the Probate Act, applies to wills, trusts, and the like made or changed after January 1, 2015. Any transfer of more than $20,000.00 of money or other property to a caregiver is presumed to be void if (i) it is challenged, (ii) provision for it appears in a "transfer instrument" intended to take effect after the death of the transferor (e.g., a will or a trust), and (iii) the caregiver is unrelated to the transferor.
The caregiver can attempt to rebut the presumption by (i) showing, by a preponderance of evidence, that the share is no greater than what the caregiver would have been entitled to under an instrument in effect before the caregiver became a caregiver; or (ii) showing, by clear and convincing evidence, that the transfer was not the product of fraud, duress, or undue influence. A caregiver who tries and fails to overcome the will be chargeable with the costs and attorney's fees of the proceeding.
This new law could be improved by expanding it to caregivers who are family members. Family members, after all, account for much of the mischief in this area. An opportunistic family member was the mastermind in a contested probate matter that was recently resolved to the satisfaction of some 30 clients of this office. First he submitted for himself a $17,000.00 claim against a probate estate for caregiver services to a sibling who lived in a nursing home with round-the-clock professional care. That claim, which was allowed in full before we entered the case, was a trifle compared to his other activity. He orchestrated an eleventh hour change to a trust that increased the share earmarked for his children from a mere nine percent of the value of the trust to 75 percent. We built a case for undue influence and incompetence that induced the opposition to propose a settlement conference with the judge. The ensuing settlement agreement restored nearly $900,000.00 to the side of the family that we represented, and reversed the split from 75/25 in favor of the opposition to 63/37 in favor of our clients.
