In re Estate of Matthews

FOURTH DIVISION
MARCH 24, 2011

1-10-1427

In re ESTATE OF ROBERT ) Appeal from the
JAMES MATTHEWS, Deceased ) Circuit Court of
) Cook County.
(Cheryl Herbeck, )
)
Petitioner-Appellant, )
) No. 2008P544
and )
)
Kenneth W. Radamacker, ) Honorable
) Henry A. Budzinski,
Respondent-Appellee). ) Judge Presiding.

JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Justice Lavin concurred in the judgment and opinion.
Presiding Justice Gallagher dissented, with opinion.

OPINION

Petitioner Cheryl Herbeck appeals the trial court’s denial of her petition to vacate an order

allowing respondent Kenneth Radamacker to recover the real estate expenses he incurred on

property bequeathed to him by the decedent, Robert Matthews, from the residue of the decedent’s

estate. On appeal, she argues that the trial court erred in denying her petition because decedent

failed to specifically provide for the payment of real estate tax expenses from his estate in his last

will and testament. Accordingly, section 20-19 of the Illinois Probate Act of 1975 (Probate Act)

(755 ILCS 5/20-19 (West 2006)) bars respondent from recovering the real estate expenses he

incurred on the bequeathed property from decedent’s estate. For the reasons detailed herein, we

reverse the judgment of the trial court.
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BACKGROUND

Decedent Matthews died testate on October 12, 2007. His last will and testament, dated

June 4, 2004, was admitted to probate on February 11, 2008. In his will, the decedent

bequeathed $20,000 and real estate located in Sarasota, Florida, to respondent and named the

petitioner the sole residuary legatee. Decedent’s will contained the following provision:

“I give my Executor or Successor-Executor the following powers

and discretions, in each case to be exerciseable without court order:

***

(e) To pay all governmental charges, taxes or liens imposed

upon my estate or upon the interest of any and all beneficiaries

hereunder by any law of any state, foreign state or federal

government, relating to the transfer of property by descent or

devise, and I do further direct that all such charges, taxes and liens

be considered and treated as expenses and costs of administering

my estate and be paid out of the same before distribution thereof.”

Title to the Florida property was transferred to respondent on March 13, 2009. Respondent

subsequently filed a claim against the decedent’s estate in which he sought reimbursement for the

money he paid to maintain the property, including the real estate taxes he paid on the property.

Respondent indicated that he paid delinquent real estate taxes for 2006 amounting to $12,702.30;

$12,056.01 in delinquent real estate taxes for 2007; and $10,918.75 in delinquent real estate

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taxes for 2008; and he advanced $1,782 for the 2009 fiscal year. Accordingly, respondent sought

to recover $37,459.06 that he had paid to satisfy the property’s real estate tax obligations from

decedent’s estate.

On November 10, 2009, the executor of decedent’s estate agreed that respondent should

be compensated for the real estate tax expenses he incurred on the Florida property from the

proceeds of decedent’s estate. Accordingly, the court entered an agreed order allowing

respondent to recover the $37,459.06 sum that he paid in real estate taxes on the Florida

property. Thereafter, petitioner filed a petition to vacate the trial court’s order allowing

respondent’s claim pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Civil Code)

(735 ILCS 5/2-1401 (West 2006)), a copy of which does not appear in the record on appeal.

On May 17, 2010, the trial court presided over a hearing on petitioner’s section 2-1401

petition to vacate respondent’s claim against decedent’s estate. Following that hearing, the

transcripts of which also do not appear in the record, the trial court entered a written order

denying petitioner’s petition, finding: “The court finds that the decedent’s will expressly provided

for payment of the real estate taxes out of the residue of his estate and therefore the estate is

responsible for the payment of the real estate taxes.” This appeal followed.

ANALYSIS

On appeal, petitioner argues that the trial court erred in denying her section 2-1401

petition to vacate respondent’s claim against decedent’s estate. Specifically, she argues that the

trial court erred in permitting respondent to recover the real estate taxes he paid on the Florida

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property from decedent’s estate because decedent’s will did not expressly provide for the payment

of real estate taxes encumbering the property he bequeathed to respondent. Because section 20-

19 of the Probate Act (755 ILCS 5/20-19 (West 2006)) bars an inheritor from obtaining

reimbursement of real estate taxes encumbering real property unless expressly provided for in the

decedent’s will, petitioner argues that respondent may not recover the real estate tax expenses he

incurred on the property.

Respondent, in turn, argues that decedent’s will sufficiently expressed his intention to have

the delinquent real estate taxes on the Florida property be paid from the residue of his estate.

Accordingly, he argues that the trial court correctly found that decedent’s will expressly provided

for the payment of real estate taxes out of the residue of his estate.

Before we address the substantive merit of this appeal, we note as a threshold matter that

jurisdiction over this appeal is proper as we are reviewing the propriety of the trial court’s denial

of petitioner’s section 2-1401 petition. A trial court’s ruling on section 2-1401 petition

constitutes a final order and vests a reviewing court with jurisdiction pursuant to Supreme Court

Rule 304(b)(3). Ill. S. Ct. R. 304(b)(3) (eff. Feb. 26, 2010); Sarkissian v. Chicago Board of

Education, 201 Ill. 2d 95, 101-02 (2002).

As another preliminary matter, we observe that neither petitioner’s petition to vacate

respondent’s claim pursuant to section 2-1401 of the Civil Code nor the transcript of the hearing

that the court conducted on her petition appears in the record on appeal. Petitioner did attach a

copy of her petition to the appendix of her brief; however, it is well established that the record on

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appeal cannot be supplemented by attaching documents to the appendix of a brief. Whittmanhart,

Inc. v. CA, Inc., 402 Ill. App. 3d 848, 852 (2010). It is the burden of the appealing party to

provide the reviewing court with a sufficiently complete record to allow for meaningful appellate

review. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984); Lewandowski v. Jelenski, 401 Ill.

App. 3d 893, 902 (2010). As a general rule, “[a]n issue relating to a circuit court’s factual

findings and basis for its legal conclusions obviously cannot be reviewed absent a report or record

of the proceeding.” Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 156 (2005). In the absence

of a sufficiently complete record, a reviewing court will resolve all insufficiencies apparent therein

against the appellant and will presume that the trial court’s ruling had a sufficient legal and factual

basis. Foutch, 99 Ill. 2d at 391-92; Lewandowski, 401 Ill. App. 3d at 902. While we will keep

these principles in mind, we observe that the trial court issued a detailed written order rejecting

the arguments in petitioner’s petition, finding that decedent’s will expressly provided for the

payment of real estate taxes out of the residue of the estate. Accordingly, we have sufficient

information to review the propriety of the trial court’s ruling on petitioner’s section 2-1401

petition.

State law presumes that the creator of a will or trust had knowledge of the law governing

the document at the time it was executed and drafted the document in conformance with the law.

Bank of America, N.A. v. Carpenter, 401 Ill. App. 3d 788, 797 (2010). In construing a will, the

court’s objective is to ascertain the testator’s intent and to effectuate that intent, provided that it

is not contrary to public policy. In re Estate of Feinberg, 235 Ill. 2d 256, 268-69 (2009); Bank of

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America, 401 Ill. App. 3d at 797. To ascertain the testator’s intent, the provisions of a will

should not be considered in isolation; rather, the court must examine the document in its entirety.

Bank of America, 401 Ill. App. 3d at 797. The interpretation of a will raises an issue of law and is

subject to de novo review. In re Estate of Williams, 366 Ill. App. 3d 746, 748 (2006).

Real estate taxes constitute a lien against the property subject to those taxes. 35 ILCS

200/21-75 (West 2006); In re Estate of Light, 385 Ill. App. 3d 196, 200-01 (2008). The Probate

Act provides when a beneficiary is bequeathed real estate subject to an encumbrance, that

beneficiary “takes [the property] subject to the encumbrance and is not entitled to have the

indebtedness paid from other real or personal estate of the decedent” unless it is “otherwise

expressly provided by decedent’s will.” (Emphasis added.) 755 ILCS 5/20-19 (West 2006).

This provision in the Probate Act “operates in derogation of the common law doctrine of

exoneration, which provided that a devisee of real estate mortgaged or otherwise encumbered by

a testator in his lifetime was entitled to a discharge of the lien from [the] testator’s personal estate

unless he directed otherwise in his will.” Griffin v. Gould, 72 Ill. App. 3d 747, 749 (1979).

Because this provision, effective Jan. 1, 1976, is in derogation of common law, courts have held

that a testator who wishes his estate to assume responsibility for real estate tax obligations of a

bequeathed property must make that wish sufficiently clear and that the burden of real estate taxes

will not be shifted to the estate absent a clear expression of that wish. Id.

For example in Griffin, this court reviewed a will containing the following provisions:

“‘*** that the executors shall provide for the payment out of the residue of

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my probate estate of the following without seeking reimbursement from or charging any

person therefor:

(a) My last illness and funeral expenses and the costs of my burial.

(b) All indebtedness owed by me at the time of my death.

(c) All expenses in connection with the administration of my

estate.

(d) All valid inheritance, estate, transfer and succession taxes,

including interest and penalties thereon, which may become payable by

reason of my death ***.” Id. at 748.

Although the decedent’s will contained a general provision about taxes and “all [of the

decedent’s] indebtedness,” this court found the language insufficient to shift burden of the real

estate taxes incurred by bequeathed property to the decedent’s estate, reasoning: “something

more than the stock phrase ‘all indebtedness owed by me at the time of my death,’ *** is required

in order to effectuate that shift.” Id. at 752. Accordingly, we reversed an order of the trial court

permitting the decedent’s nephew to obtain payment of real estate taxes from the residue of the

testator’s estate. Id. at 753.

More recently, the Third District in In re Estate of Light, relying on our decision in

Griffin, found that a decedent’s general provision regarding the payment of taxes incurred by his

estate was insufficient to express the intent for the estate to assume responsibility for the payment

of real estate taxes incurred by bequeathed property. Light, 385 Ill. App. 3d at 201. Specifically,

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the court construed the following provision:

“‘FIRST: I direct that my Executor hereinafter

named *** shall pay all taxes assessed or imposed against

my estate or against any beneficiary of my estate, any surviving

joint tenant or donee of any gift, that said Executor shall not

apportion such tax and shall not have the right, power, authority

or duty to recover any portion of any tax from any beneficiary

under my will or under any insurance policy that I may own or

from any other person, firm or corporation.” Id. at 197.

In finding the provision insufficient to shift the real estate tax burden on the decedent’s

bequeathed properties to the estate, the court explained: “In her will, Light directed her executor

to pay ‘all taxes assessed or imposed against my estate or against any beneficiary of my estate.’

The real estate taxes on the [bequeathed] properties *** do not fall within this mandate because

the real estate taxes were assessed and imposed against the real property, not against Light’s

estate.” Id. at 201.

Here, the decedent directed his executor “[t]o pay all governmental charges, taxes or liens

imposed upon my estate or upon the interest of any and all beneficiaries hereunder by any law of

any state, foreign state or federal government, relating to the transfer of property by descent or

devise.” Like the provisions at issue in Griffin and Light, there is no specific direction for the

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estate to assume responsibility for the real estate taxes associated with the bequest of the

decedent’s real property. The decedent’s reference to the taxes imposed on his estate concerns

the payment of estate and inheritance taxes, not real estate taxes. See Light, 385 Ill. App. 3d at

201. Real estate taxes are not imposed on a decedent’s estate or upon a beneficiary; rather, they

are assessed and imposed against real property and constitute an encumbrance on the property

upon which they are assessed. 755 ILCS 5/1-2.07 (West 2006); Light, 385 Ill. App. 3d at 201.

Because real estate taxes are imposed against the property itself and not against the estate or a

beneficiary named in the will, the provision in decedent’s will merely directing the payment of all

charges “imposed upon [his] estate or upon the interest of any and all beneficiaries *** relating to

the transfer of property by descent or devise” is not sufficient to shift the real estate tax obligation

to the estate. Light, 385 Ill. App. 3d at 201. While ownership of the Florida property was

transferred, the real estate tax obligation imposed against the property remained at all times an

encumbrance on the property itself. 755 ILCS 5/1-2.07 (West 2006); Light, 385 Ill. App. 3d at

201. Accordingly, we find that decedent’s will did not specifically provide for his estate to

assume responsibility for the real estate tax obligations of his real property and the trial court

erred in finding that respondent was entitled to recoup the real estate tax expenses he incurred on

the Florida property from decedent’s estate.

In so finding, we reject respondent’s argument that, based on our decision in Griffin,

decedent’s will sufficiently expressed his intent to shift the burden of real estate tax expenses to

the estate because in Griffin this court “expressly rejected the proposition that a testator was

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required to expressly provide for the payment of real estate taxes in order to shift that burden to

the residuary estate.” Respondent misconstrues that ruling. In Griffin, the co-executors of the

decedent’s estate had contended that for the decedent to “expressly provide” for the estate’s

assumption of real estate tax liability under section 20-19 of the Probate Act, he would have had

“to use words that contemplated the statute.” Griffin, 72 Ill. App. 3d at 752. In response, we

stated: “We need not go so far in coming to our conclusion that the present provision under the

will does not expressly provide for shifting taxes to the estate as required by section 20-19;

something more than the stock phrase ‘all indebtedness owed by me at the time of my death,’

however, is required in order to effectuate that shift.” Id. A testator’s general direction for the

estate to assume responsibility for debts and expenses merely states what the law requires to be

done and does not impose any additional legal obligations on the estate. Id. Accordingly,

although a testator need not use the precise statutory language contained in section 20-19 of the

Probate Act, he must still include an express provision in his will directing his estate to assume

responsibility for real estate taxes to shift the tax obligation from a beneficiary to the estate. Id.

To require otherwise would ignore the plain language of the Probate Act, which requires a

beneficiary to assume responsibility for real estate taxes “[e]xcept as otherwise expressly provided

by decedent’s will.” (Emphasis added.) 755 ILCS 5/20-19 (West 2006).

Here, the decedent’s instruction for his executor to “pay all governmental charges, taxes

or liens imposed upon my estate or upon the interest of any and all beneficiaries * * * relating to

the transfer of property by descent or devise,” like the provisions at issue in Griffin and Light,

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merely reiterates what the law requires. We acknowledge that the language at issue in this case

differs from that present in Griffin and Light because the decedent directed his estate to pay

charges, taxes and liens imposed “upon the interest of any and all beneficiaries.” However, we

find that the addition of the term “interest” does not broaden the instruction and bring it within

section 20-19 of the Probate Act because a beneficiary has an interest in a bequest or devise with

or without a testator’s use of that term, as that is the ultimate purpose of a will. If, as our

respected colleague asserts in his dissent, that the use of the term “interest of any and all

beneficiaries” is sufficient to exonerate the beneficiary from the property tax burden, then we

would have to determine that the addition of the word “interest” does more than the actual

Probate Act itself, which governs the transfer of real and personal property from the testator’s

estate to the beneficiaries who necessarily have an interest in the property regardless of whether

that term is specifically included in the will. Indeed, Illinois law confers the interest to the

beneficiary with or without the extra word “interest.”

Similarly, we find that the decedent’s use of the term “devise” in his last will and testament

also fails to satisfy the requirements of section 20-19. Black’s Law Dictionary defines the term

“devise” as follows: “The act of giving property by will. Although this term traditionally referred

to gifts of real property–and in British usage the term is still confined to real property–in

American usage the term has been considerably broadened. In both the Restatement of Property

and the Uniform Probate Code, a disposition of any property by will is a devise.” (Emphasis

added.) Black’s Law Dictionary 517 (9th ed. 2009). Notably, section

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20-19(a) of the Probate Act, which clearly only applies to real property, does not rely on

traditional terminology and does not specifically reference property that is “devised”; rather, it

refers to real estate that is “specifically bequeathed” even though the traditional use of the term

“bequeath” refers to personal, rather than real, property. 755 ILCS 5/20-19(a) (West 2006).

Indeed, if one were to strictly adhere to the historical definition of “bequest,” its usage in the

statute would be illogical because that section clearly refers to the payment of real estate taxes.

See Antioch Community High School District 17 v. Board of Education, 373 Ill. App. 3d 544,

552 (2007) (recognizing that the cardinal rule in statutory construction is to give effect to the

intent of the legislature and to avoid construing a statute in a manner that produces an absurd,

unjust or unreasonable result). Although this provision was perhaps inartfully drafted, the statute

is nonetheless clear that the burden of real estate taxes on real property falls on the beneficiary

unless “otherwise expressly provided by decedent’s will.” We find that the simple use of the word

“devise” is not sufficient to satisfy this statutory requirement and shift the real estate burden to the

estate. This case is a cautionary tale for attorneys that the requirements of drafting wills, while

mellowed by case law, are still not aspirational. Because the decedent’s will contained no express

provision concerning the estate’s assumption of real estate tax obligations, we find that the trial

court erred in permitting respondent to recoup the $37,459.061 in real estate

1
We note that even if decedent’s will had satisfied the requirements of section 20-19 of

the Probate Act and had contained an express provision shifting the burden of the real estate taxes

to the estate, the trial court nonetheless would have erred in permitting respondent to recover the

entire $37,459.06 sum he paid to satisfy the property’s real estate tax obligations. Under Illinois

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tax expenses he incurred on the Florida property from the residue of decedent’s estate.

CONCLUSION

Accordingly, and respectfully, we reverse the judgment of the trial court.

Reversed.

PRESIDING JUSTICE GALLAGHER, dissenting:

I respectfully dissent. I agree with the majority that section 20-19 of the Probate Act (755

ILCS 5/20-19 (West 2006)) requires that a testator expressly provide that real estate taxes are to

be paid out of an estate or else the devisee must assume the responsibility to pay them. However,

in trying to effect the testator’s intent, as we are required to do, I believe the intent of the testator,

Dr. Matthews, was made clear in this case.

Article V, paragraph(e), of the will, in pertinent part, provides as follows:

“Article V. I give my Executor or Successor-Executor the following

powers and discretions, in each case to be exercisable without court order

law, title to devised real property is vested to a devisee upon the entry of an order admitting the

will to probate (755 ILCS 5/4-13 (West 2006); Scott v. Scott, 179 Ill. App. 3d 489 (1989)) and

the owner of real property on January 1 of any given year is personally liable for the real estate

taxes imposed that year (35 ILCS 200/21-75 (West 2006)). Accordingly, because the will was

admitted to probate on February 11, 2008, respondent would have been personally liable for the

real estate taxes imposed thereafter, and the trial court erred in permitting respondent to recover

all of the real estate taxes imposed in 2008 as well as the portion he advanced for 2009.

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***

(e) To pay all governmental charges, taxes or liens imposed upon my

estate or upon the interest of any and all beneficiaries hereunder by any law

of any state, foreign state or federal government, relating to the transfer of

property by descent or devise, and I do further direct that all such charges,

taxes and liens be considered and treated as expenses and costs of

administering my estate and be paid out of the same before distribution

thereof.”

The majority concludes that since real estate or taxes on real estate are not

specifically mentioned, there is no intent to include real estate taxes. I disagree. The

majority relies on In re Estate of Light, 385 Ill. App. 3d 196 (2008), in support of its

conclusion. In Light, the executor was directed to pay “ ‘all taxes assessed or imposed

against my estate or against any beneficiary of my estate.’ ” Id. at 201. The attorney who

drafted the will testified that this was “ ‘boilerplate’ ” language intended to cover the state

inheritance tax and the federal estate tax, not real estate taxes. Id. at 198. This court

determined that the language in Light was not sufficient because the real estate taxes were

assessed and imposed against the real property, not against the estate or the beneficiaries.

Id. at 201.

In Griffin v. Gould, 72 Ill. App. 3d 747, 752 (1979), this court held that something

more than the general phrase “ ‘all indebtedness owed by me at the time of my death’ ” is

required to satisfy the express provision required by section 20-19. However, this court

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also rejected the argument that the testator must use a specific term or phrase in order to

“expressly provide” for the assumption of real estate tax liability by the estate as required

by section 20-19. Id.

It is my view that the language in this case can be distinguished from the language

in both Light and Griffin. In both of those cases, the language was general and, as one

attorney testified, “boilerplate.” Here, the will provided that any taxes imposed on the

estate or on any interest of any beneficiary, relating to the transfer of property by descent

or devise, which includes real property, should be paid by the estate. The real estate taxes

were imposed on real property, an interest of one of the beneficiaries. Moreover, it is

unlikely that Dr. Matthews had the intent to devise a parcel in Sarasota, Florida, to his

“friend Kenneth Radamacker and simultaneously saddle him with over $37,000 in

delinquent real estate taxes. One would hardly intend to do so to a “friend.”

We are also without the benefit of the transcript of the hearing below, so we do

not know what evidence was considered by the circuit court in reaching its conclusion that

the will expressly provided for the payment of real estate taxes by the estate. As the

majority correctly notes, the appellant bears the burden of providing a sufficiently

complete record to allow for meaningful review, and in the absence of such a record, this

court will resolve all insufficiencies against the appellant and presume the ruling below had

a sufficient legal and factual basis. For these reasons, I would affirm the judgment of the

circuit court.

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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

In re ESTATE OF ROBERT JAMES MATTHEWS,
Deceased

(Cheryl Herbeck,

Petitioner-Appellant,

and

Kenneth W. Radamacker,

Respondent-Appellee).

No. 1-10-1427

Appellate Court of Illinois
First District, FOURTH DIVISION

March 24, 2011

Justice Pucinski delivered the opinion of the court, with opinion.

Justice Lavin concurred in the judgment and opinion.
Presiding Justice Gallagher dissented, with opinion

Appeal from the Circuit Court of Cook County.
The Hon. Henry A. Budzinski, Judge Presiding.

COUNSEL FOR PETITIONER-APPELLANT:

KIENLEN & PIETSCH, of Wheaton, IL
(J. Laurence Kienlen)

COUNSEL FOR RESPONDENT-APPELLEE:

LAW OFFICES OF DENNIS L. KARNS, of Chicago, IL
(Dennis L. Karns)

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