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Ernie Banks Estate, Part 9: Answer to the Will Contest

Banks Daley Plaza

This is the ninth installment in my series on various legal aspects of the Estate of Ernie Banks. You can read my first eight pieces here.

It’s been a couple of months since my last update on the Banks Estate case. Quick recap: Ernie’s surviving wife, Elizabeth Banks, filed a combined will and trust contest on July 24th. Elizabeth and Regina Rice (the executor and beneficiary) then engaged in an early settlement conference to see if their differences could be amicably resolved without further litigation. As detailed in my last post, those talks fell apart fairly quickly. So the case goes on.

Responding to a Complaint: Motion to Dismiss or Answer

As with other types of civil cases, after a plaintiff files a complaint the defendant is expected to file a response. This response usually comes in the form of either: (1) a Motion to Dismiss; or (2) an Answer.

There are a number of different types of motions to dismiss, but generally they allege some sort of legal defect in the complaint. An alleged defect could be based on jurisdiction, improper service or an expired statute of limitations. It also could be for failure to state sufficient facts for the alleged cause of action. In other words, the defendant would be arguing that even if all of the allegations in the complaint are true, it wouldn’t be sufficient to win the case. For example, this might be used when the complaint provides conclusions without alleging sufficient underlying facts to support those conclusions.

If a Motion to Dismiss doesn’t apply or isn’t advantageous, then the defendant will file a written Answer. An Answer is a point-by-point response to each numbered allegation in the complaint. The basic response to each allegation will be to either: (a) admit; (b) deny; or (c) allege insufficient information to admit or deny.

The Estate’s Answer

On October 26th, Regina Rice (on behalf of the Estate) filed her Answer to the will and trust contest complaint. The media did not cover the Answer (no mass media articles have been written since my last post), but I have had a chance to review the Answer. While most of the allegations in the complaint are denied in one way or another, there are a number of potentially important admissions that add to our current knowledge of the facts.

The first three admissions speak to Banks’ condition in October 2014:

  1. On October 8, 2014, Banks fell while alone in his condominium, and was then taken for treatment to Northwestern Memorial Hospital.
  2. On October 11, 2014, Banks was discharged from Northwestern Memorial, with a recommendation of 24 hour “assistance” and outpatient physical therapy.
  3. On October 14, 2014, a neuropsychological evaluation was performed on Banks by a licensed psychologist and board certified neuropsychologist.

Although certain denials are based on the form of the Complaint, beyond these few factual admissions, Rice denies Elizabeth’s characterizations of the consequences of Banks’ fall and the results of his evaluation. Ultimately, the details and findings from these evaluations could be critical.

The last four admissions relate to Rice’s relationship with Banks and her involvement with the creation of Bank’s revised estate plan:

  1. Rice admits that she was Banks’ “trusted friend and confidant.”
  2. Rice was added as a co-signor to a Bank of America checking account in 2010.
  3. On October 17, 2014, Rice drove Banks to attorney Byron Faermark’s office, and she was present when Ernie signed the will and trust in Faermark’s office on that same date.
  4. Rice forwarded the payment for the revised estate plan to attorney Faermark, which Rice further alleges was at Banks’ request.

Although not necessarily outcome determinative, these are facts that can be used toward the necessary elements to establish the presumption of undue influence (See Part 8 for more on this).

What’s Next?

The parties are now engaged in written discovery. I plan to review the discovery process in a future post. The next court status hearing on discovery matters is currently set for February 11, 2016.

And Finally…

I’m excited to announce that I will be co-presenting (with attorney David Lutrey) for the Illinois Institute for Legal Education (IICLE) 59th Annual Estate Planning Short Course on “The Ernie Banks Estate: Lessons for Estate Planners.” This event will be held on May 17 and 18, 2016 in Champaign and May 25 and 26, 2016 in Chicago.

Image courtesy of Scott L via Flickr