There were serious questions about whether 93-year-old Margaret Decharinte was competent to act as administrator of her late husband Frank’s estate. During a 2018 hearing in DuPage County on objections by Margaret’s stepdaughter — Joanne Bartolone — Bartolone’s attorney reported that she interviewed Margaret and that Margaret “doesn’t know what year it is,” “thinks it’s 2014,” “doesn’t know what season it is,” “didn’t know what day of the week it is,” “doesn’t handle her own personal finances” and “doesn’t know what her bank is.”
Questioned by the judge, Margaret gave some befuddled answers but insisted she could handle the job with help from her daughter Laurie. And the judge ruled “she’s competent enough to handle this with the assistance that she has.”
Affirming, the Illinois Appellate Court explained that the test for determining whether someone is competent to serve as an administrator under the Probate Act is the same as the standard for testamentary capacity: “the ability to know and remember the natural objects of his or her bounty, to understand the character of his or her property and to plan a disposition of that property.”
The trial judge’s ruling wasn’t against the manifest weight of the evidence under this standard. And although “Joanne’s counsel made certain representations regarding her ‘interview’ with Margaret,” these statements didn’t count because the attorney “was not placed under oath.” Decharinte v. Bartolone, 2019 IL App (2d) 190060-U (Sept. 16, 2019).
Here are highlights of Justice Kathryn E. Zenoff’s Rule 23 decision (with light editing and omissions not noted):
Decedent died on August 21, 2018, leaving a will dated March 16, 2001. Margaret, his second wife and widow, filed a petition for letters of administration; Joanne, decedent’s daughter with his first wife, filed a cross-petition.
The first hearing on the petitions took place on December 5, 2018. Joanne’s counsel suggested to the court that Margaret had cognitive difficulties and was not competent to serve as administrator.
Margaret’s counsel expressed that, with his and her daughter’s help, Margaret would be capable of serving. The court stated that it was inclined to appoint Margaret to serve with supervision, but, after further discussion, it agreed to have her appear at a later hearing.
Margaret was present at a hearing on December 14, 2018. Joanne’s counsel, after talking to Margaret, relayed her impressions to the court:
“I did speak with Margaret, and I just can’t, in good conscience, agree to her appointment. She doesn’t know what year it is. She thinks it’s 2014 — basic questions. She doesn’t know what season it is. She didn’t know what day of the week it is. She gets help and assistance on a day-to-day basis from her daughter, Laura. She doesn’t handle her own personal finances. She doesn’t know what her bank is.”
The court itself then questioned Margaret under oath. Margaret stated her address and said that she lived with her daughter Laurie. Margaret testified that she took care of her finances with Laurie’s and her other daughter’s assistance.
When the court inquired whether Margaret wrote her own checks, she answered: “I do write my own checks, yes.” The court asked Margaret if she knew what administering an estate entails. Margaret answered, “Yes, I know.”
The court asked what her understanding of her duties was, and she stated: “There’s a lot of things that go on that I don’t understand, but I know what should be — ” The court interrupted Margaret’s answer and said, “Do you understand what it means to be an administrator?” Margaret responded: “It takes a lot of willpower and a lot of truth.”
The court asked, “Do you understand that you have to gather the assets and you have to do an inventory and accounting? Did anybody explain any of this to you; do you understand that?” Margaret responded, “Yes, I understand. I had my own account for years, and then I signed up some of it to my husband, and he took over. And he took over the house, and I didn’t know, but they did a lot of things I didn’t know.”
When the court asked her if she could “do the duties,” she responded, “Yes. And I can have help. I stay with my daughter, and she reads everything, and then she reads it to me.”
The court asked, “And so you think between the two of you, you can handle this?” Margaret said, “Yes.” Her counsel interjected, “And certainly with the assistance of myself, your [h]onor.”
The court found that “she’s competent enough to handle this with the assistance that she has.”
Under Section 9-1 of the Probate Act, a “person who has attained the age of 18 years, is a resident of the United States, is not of unsound mind, is not an adjudged person with a disability as defined in this act and has not been convicted of a felony, is qualified to act as administrator.”
These are the same as the statutory qualifications for an executor under the act. Thus, we take authority addressing whether a potential executor is not of unsound mind to apply to the qualifications of a potential administrator as well.
In questioning Margaret’s competency to act as administrator, Joanne essentially asserted that Margaret was of unsound mind within the meaning of the act. A trial court’s ruling on a petition for removal of an executor is subject to a manifest-weight-of-the-evidence standard of review. We apply the same standard of review here, as the issue involves a factual determination as to Margaret’s competency to serve as administrator.
A trial court’s ruling is against the manifest weight of the evidence only if it is unreasonable, arbitrary and not based on the evidence or when the opposite conclusion is clearly evident from the record.
Joanne claims that the trial court “erred in relying on preference alone when fitness should have outweighed preference.” Under Section 9-3 of the act, a decedent’s surviving spouse is entitled to preference in obtaining letters of administration. Contrary to Joanne’s contention, the record shows that the court did not rely solely on the statutory preference.
At the first hearing, the court recognized Margaret’s possible infirmity due to her age and stated that it would order supervised administration. Then, it agreed to postpone its decision to appoint Margaret until it had an opportunity to examine her in court with regard to her competence. Ultimately, the court found, not just that Margaret enjoyed statutory preference, but that she was “competent enough to handle this with the assistance that she has.”
Under the common law, the general rule is that the capacity to make a will is sufficient to make a person mentally competent to serve as an executor. Clark v. Patterson, 114 Ill. App. 312 (1904); Griffin v. Irwin, 21 So. 2d 668 (Ala. 1945). Under older formulations of the rule, “idiots and lunatics” were “practically the only ones disqualified” by the common law. Griffin, 21 So. at 670; see also Clark, 114 Ill. App. at 318; In re Leland’s Will, 114 N.E. 854 (N.Y. 1916) (noting the “common law disability of imbeciles and lunatics”).
The Illinois Supreme Court, in the appeal from Clark, agreed that the common law requires no greater competence of an executor than of a testator. Clark v. Patterson, 214 Ill. 533 (1905).
Sections 9-1 and 6-13(a) of the act — like the equivalent provision concerning executors in the era of Clark — do not add mental competency requirements beyond those of the common law.
The law presumes that adults are mentally competent and places the burden to prove incompetence on the party claiming incompetence; incompetence “cannot be inferred merely from old age, physical illness or defective memory.” In re Estate of Gruske, 179 Ill. App. 3d 675 (1989). The modern standard for testamentary capacity requires that a testator have the ability to know and remember the natural objects of his or her bounty, to understand the character of his or her property and to plan a disposition of that property. See, e.g., In re Estate of Elias, 408 Ill. App. 3d 301 (2011).
Applying these standards, we hold that the court’s finding that Margaret was mentally competent to serve was not against the manifest weight of the evidence. To be sure, some of the answers that she gave the court were vague and nonresponsive. However, Margaret also testified that she paid her own bills, working with her daughters when she needed assistance.
Nothing in her testimony suggested that she was unable to know and remember the natural objects of her bounty — or the natural objects of decedent’s bounty, for that matter. Nothing suggested that she could not understand the nature of the property that the estate would manage.
Joanne asserts the trial court did not “properly weigh the evidence.” However, Joanne presented no contrary evidence.
Joanne’s counsel made certain representations regarding her “interview” with Margaret, but she was not placed under oath. As Margaret’s counsel pointed out, “That is Joanne’s counsel’s assertion of the interview.”
Joanne cites In re Estate of Abell, 395 Ill. 337 (1946), and Dennis v. Dennis, 323 Ill. App. 328 (1944). Neither Abell nor Dennis addresses a court’s determination of whether a proposed administrator is of unsound mind. Instead, they address whether the court may consider nonstatutory disqualifications: “hostility, adversity and conflict of interest” in Dennis, and “adverse interest, or hostility to those immediately interested in the estate, or even of an interest adverse to the estate itself” in Abell. They thus are not relevant.
For the reasons stated, we affirm the court’s appointment of Margaret as administrator of the estate.