Illinois Appellate Court Finds That Class Gift Was Unambiguous

Albert Lello’s will gave his assets (after paying debts, taxes and administrative expenses) to his wife, Luzminda and two of his three sisters, Virginia Harris and Rita Sopka. The will, written in 2005, stated that the assets were “to share and share alike in equal shares or to the survivor or survivors of them.”

He died at age 88 in 2012 and left an estate worth approximately $8.2 million. His sister, Virginia Harris, had died and was survived by 4 children; they argued they were entitled to their mother’s share. Luzminda, the wife, renounced the will and elected to take her statutory share.

The Harris children petitioned the court for construction of the will. The surviving sister, Rita Sopka, moved to dismiss, arguing the will created a class gift.

The Cook County circuit court judge granted Sopka’s motion declaring: “The will of Albert Lello, deceased, is hereby declared unambiguous as a matter of law,” with “unambiguous” in all capital letters.

The Illinois Appellate Court affirmed that circuit court judge opinion, stating that “to share and share alike in equal shares to the survivor or survivors of them” as establishing “a class gift, meaning upon Virginia’s death, Rita and Luzminda will be entitled to Virginia’s share of the estate.”

The appeals panel stated that the Illinois Supreme Court has stated that “a gift to a class is defined as a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, and who are all to take in equal or some other definite proportions, the share of each being dependent for its amount upon the ultimate number of persons.”  O’Connell v. Gaffney, 23 Ill.2d 611 (1962).

“One of the essential features of a class gift is that the number of the persons who are to take the property is to be ascertained at a future time. A gift to persons who are both numbered and named in the language of gift is prima facie or by an initial presumption a gift to them as individuals notwithstanding they are also designated in general terms as by relationship to the testator to others.”  O’Connell, 23 Ill.2d at 617.

“The decisive inquiry is whether or not the testator, in making the particular gift in question, if so with group-mindedness, whether in other words, he was looking to the body of persons in question as a whole or unit rather than to the individual members of the group as individuals; if the former, they take as a class.”  Krog v. Hafka, 413 Ill. 290 (1952).  In this case, paragraph 4 of the decedent’s will names the three legatees.

Accordingly, the presumption is that the decedent’s bequest to each of them is an individual gift, unless there is something additional contained in the will to rebut that presumption. See Brown v. Leadley, 81 Ill.App.3d 504 (1980) (Illinois cases seem clear that a gift to persons named is a gift to them individually and not a class gift unless reasons are found in the will for the decision that the testator’s intent would best be served by disregarding the rule.”)

In short, the language “to share and share alike in equal shares or the survivor of survivors of them,” has been considered many times by Illinois courts and have found that such language indicates a class gift, with a deceased legatee’s share passing to the surviving legatees.

As the language in the will in this case was strikingly similar to the language present in several long-established Illinois cases, the court agreed with the circuit court judge in that the language of the will means that a class gift was created and upon Virginia’s death, her share of the estate passes to Rita [Sopka] and Luzminda [Lello].

In re Estate of Lello, 2016 IL App (1st) 142500 (Feb. 5, 2016).

Kreisman Law Offices has been handling probate litigation matters, catastrophic injury cases and civil trials for individuals, families and businesses for more than 40 years, in and around Chicago, Cook County and its surrounding areas including, Palos Hills, Worth, Chicago Ridge, Justice, Countryside, Burr Ridge, Western Springs, Oakbrook Terrace, Westchester, Forest Park, Berwyn, Cicero, Joliet, Villa Park and Bensenville, Ill.

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