reciprocal wills

In 1937 H. Franklin Johnson and Eleanor Johnson married and for more than 36 years enjoyed a happy marriage without children. The plaintiff accumulated an estate in excess of $2,000,000 and frequently gave his wife substantial gifts of money and securities that she managed following his advice. In 1966 Mrs. Johnson learned she had cancer and a life expectancy of less than five years. Prior to 1969 the couple maintained reciprocal wills leaving the survivor the entire estate. On February 5, 1969 they executed new wills under which Mrs. Johnson's relatives would receive 20 percent of the plaintiff's estate if she predeceased him. In the summer of 1970 Mrs. Johnson executed a new will. Again in February 1972 she executed another will and simultaneously created a revocable inter vivos trust into which she placed substantially all her assets with the will pouring any residue into the trust. She named herself trustee. She retained the entire income for life. She held the power to invade principal in her discretion. She held broad powers to invest and distribute the property. She held the power to alter amend or revoke the trust. She designated La Grange State Bank as successor trustee upon her death or disability. Upon her death the successor trustee was to distribute the assets to her mother, sister, niece and named charities. A limited provision existed for the plaintiff's emergency support medical and burial expenses after considering other sources and the needs of her mother and sister. Mrs. Johnson moved to Florida in 1972 where she died in September 1972. Her will was admitted to probate in Florida on October 19, 1973. During the Florida probate the plaintiff filed a three-count amended complaint in the circuit court of Cook County against the trustee and trust beneficiaries alleging the trust was illusory and fraudulent as to his marital rights and seeking a constructive trust for his statutory share. The trial court dismissed counts I and II. It allowed count III to stand. After a bench trial the court entered judgment for the defendants at the close of the plaintiff's case. The court also assessed attorney's fees and costs against the plaintiff under section 41 of the Civil Practice Act. The First District Appellate Court reversed both the judgment and the fee award. Myra Havey and Paul Havey had been married more than 35 years when she died in 1972 although they lived apart amid marital difficulties. In July 1972, knowing she was terminally ill, Mrs. Havey converted a savings account standing in her name to a joint account with her sister-in-law Frances B. Patton. She opened another joint savings account with Patton. She purchased a joint certificate of deposit. None of which Patton funded and from which Patton could withdraw only to pay Mrs. Havey's bills. Mrs. Havey executed a will naming Patton executor and dividing her estate between Patton and her husband with a paragraph stating the joint accounts were to pass by operation of law outside probate. Her probate estate totaled approximately $4,000, insufficient to cover last-illness, funeral and administration expenses. The joint accounts held $47,509.77. Paul Havey renounced his wife's will. He died during administration of the estate. His executor John F. Havey then filed an action for declaratory judgment alleging the joint accounts fraudulently deprived Paul Havey of his marital rights. The trial court entered judgment for defendant Patton and the Fourth District Appellate Court affirmed finding sufficient donative intent. The Supreme Court of Illinois consolidated the appeals noting that the Florida judgment did not bind Illinois courts on the validity of the inter vivos trust whose corpus remained in Illinois.