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Ernie Banks Estate, Part 7: Intro to Will and Trust Contests


This is the seventh in my series on various legal aspects of the Estate of Ernie Banks. You can read my first six installments here.

Before I get into today’s main topic, I want to update regular readers on developments since my last installment on July 28. As you’re probably aware, Elizabeth Banks filed a will and trust contest complaint on July 24, a couple weeks before the deadline. However, Ernie Banks’ children did not join in or file their own will/trust contest. In fact — despite their initial protestations and promise to contest — they have not filed any appearance or had any direct involvement in the court proceedings. Due to their inaction, the children are now time-barred from filing their own contest.

Probate hearing on August 6

The lack of involvement from Banks’ children actually came up at the last hearing on August 6, which I was personally able to attend along with Jason Meisner, who has consistently delivered excellent articles on the case for the Chicago Tribune — August 6 article here. In addition, a few other matters were addressed at that hearing:

1. Spouse’s award approved. This was the main topic of my last blog post. Elizabeth Banks asked the court to approve the minimum $20,000 spouse’s award, while Rice had objected to any award on the basis that Elizabeth was a “spouse in name only” and had received non-probate benefits. Predictably, Judge Riley said that the law was clear and that he had no discretion to deny a minimum award. “I’ll tell you exactly what the appeals court would say if I denied it. They’d say, ‘Hey, what’s wrong with Riley?'” But whether the estate will have funds to satisfy the award could be a different story.

2. Spousal renunciation deadline extended. The attorneys also debated Elizabeth’s request to extend the regular 7-month deadline for filing renunciation of the will. Elizabeth wanted an indefinite extension, while Rice wanted it limited. Judge Riley ultimately extended the deadline into late October. Perhaps a topic for a future blog post — renunciation of the will means that the spouse receives a fixed share of the probate estate regardless of what the will says. That fixed share is 1/3 of the estate when the decedent left children (as is the case here) or 1/2 of the estate when there are no children. Elizabeth attorneys’ concern involved her renouncing the will while simultaneously contesting it.

3. Pre-trial settlement conference scheduled. Maybe the most important development was the signaling of the parties’ interest to engage in settlement talks. Despite the pointed accusations in Elizabeth’s complaint, it was noted that the estate has limited assets and that a protracted battle is not in the parties’ best interests. A settlement conference with the judge, which will be personally attended by both Elizabeth Banks and Regina Rice, is scheduled for September 25. As noted in Part 5, the right to control Ernie Banks’ name, likeness and publicity is likely to be a main sticking point. In a letter to the Chicago Tribune, a friend, fan and dentist of Ernie Banks suggested that the estate go to a “Ernie Banks Tikkun Olam Charity Fund” managed by the Cubs.

One more creditor claim against the estate

Speaking of friends, a longtime friend of Ernie Banks — Shirley Marx — filed a claim against the estate for unpaid loans that she alleges to have made to Banks over the years. The claim for “$80,000+” was filed with a jury demand on August 17 — the very last day for filing claims permitted in the 6-month claim window. I discussed the creditor claims process in Part 3. In total, 7 creditor claims have been filed with the court.

This latest claim suggests that Banks was indeed having liquidity problems over the past few years. Ms. Marx has at least three obstacles in pursuing her claim:

  • Can she sufficiently prove the propriety and amounts of the “loans?”
  • Are any of the unpaid loans time-barred?
  • Even if awarded, will the estate have sufficient funds to pay 7th-class claims?

It will be interesting to see how this claim proceeds. Sometimes a claim like this can become a case within a case.

Introductory FAQ on Illinois will and trust contests

I’ll get into the specific counts and allegations in Elizabeth’s will/trust contest in a future blog post, but I figured I’d take this opportunity to provide a short FAQ on will contests.

What is a will contest and why can it be filed?

A will contest is a formal attack on the validity of a will, based on the contention that the will does not reflect the actual intent of the testator. This contention is typically based on one or both of the following grounds:

  • Lack of testamentary capacity
  • Undue influence

“I don’t like the will,” however, is not a valid basis for a will contest. Neither is a contention that the will is unfair, unequal or unexpected.

Who can file a will contest?

Only someone with a financial interest in having the will invalidated has standing to file a will contest. An heir always has standing. Additionally, a beneficiary under a prior valid will also would have standing.

When can a will contest be filed?

A will contest cannot be filed until the will has been admitted to probate. Once admitted, the time limit is 6 months from the date of admission. The limit is jurisdictional — the court has no authority to extend the deadline. The only exception would be is if the executor did not send proper required notice to the heirs and legatees, and therefore lacks jurisdiction with respect to those persons.

How and where is a will contest filed?

A will contest is filed as a “supplemental proceeding” within the probate case in the county where the will was admitted to probate (where decedent lived). The complaint must allege specific facts to support the necessary elements of at least one valid basis for a will contest. Conclusory allegations alone are not sufficient.

What is the difference between a will and trust contest?

A trust contest can be filed for reasons very similar to those for a will contest. If the trust is the beneficiary of the will, then the 6-month period also applies to any trust contest. One difference is that while a will contestant is entitled to demand a jury trial, this right does not apply to a trust contest.

Stay Tuned…

In the next installment, I’ll provide an update on the progress of the case and the September 25th settlement conference. I’ll also dig a little deeper into lack of capacity and undue influence generally, and also with reference to the allegations made by Elizabeth Banks.

And of course — go Cubs!