dissenting:
It is clear from the facts alleged in the complaint that a fiduciary relation existed between the testator and Arthur who received a substantial benefit under tire will and who procured the preparation of the will. These facts and the not unreasonable inference that Arthur was the dominant party and the testator the dependent party were sufficient to show that the testator reposed trust and confidence in Arthur. See Yung v. Peloquin, 6 Ill.App.2d 258; Peters v. Catt, 15 Ill.2d 255.
I.P.I. Civil (2d ed.) Will Contest, §§ 200.03 and 200.09, makes it even more clear.
Section 200.03 states the elements which must be proved (therefore alleged):
1. Did the testator repose trust and confidence in Arthur to such an extent that Arthur could have exerted undue influence on the mind of the testator?
[The complaint alleges that the testator entrusted Arthur with all his personal property for the duration of his military service.]
A fiduciary relation arises when the property of one person is placed in charge of another.
2. Did Arthur cause the preparation of the document purporting to be the last will of the testator?
(The complaint alleges that he did.)
3. Did Arthur receive a substantial benefit?
(He got it all.)
Was influence exerted upon the testator which caused him to make a disposition of his property that was not his free and voluntary act? (Sec. 200.09.)
(The complaint so charges.)
The allegations are sufficient to raise a presumption (as a matter of law) that the document was executed as a result of undue influence.
I believe that Swenson v. Wintercorn, 92 Ill.App.2d 88, does state the elements which must be alleged (and proven) in order to make a case of undue influence arising out of the abuse of a fiduciary relationship. Under our system of pleading ultimate facts alone are required to be stated — ultimate facts which are susceptible of proof by substantive evidence and a statement of evidentiary facts is neither necessary or proper and facts necessarily implied from the statement of other facts need not be stated (Nichols, Illinois Civil Practice, secs. 761, 762, 769), nor is it necessary to plead facts which the law presumes to exist.
I have analyzed every case cited by the majority as follows:
In Heavner v. Heavner, 342 Ill. 321, 324, the supreme court stated, “* * * No act or word of Frank Heavner is alleged tending to show that he took any part in procuring the execution of the will *." It is obvious that an essential element was not pleaded.
In Ryan v. Deneen, 375 Ill. 452, at page 455, the court stated, “The alleged threat * * * is a mere statement that a reciprocal act would be withheld if the testatrix did not dispose of her property in the manner suggested. * * * No other fact is alleged as to the charge of undue influence” (Emphasis supplied.) Again, it is obvious that essential elements were not pleaded.
In Sterling v. Kramer, 15 Ill.App.2d 230, the defendant contended that the complaint was insufficient because it failed to allege specifically that he requested a will to be executed in his favor or that he was present at the execution of the will. The defendant lost, the complaint was held good.
In Ater v. McClure, 329 Ill. 519, 525, the court stated, “The statement of facts in the bill could have had no influence upon the mind of the testator when engaged in the business of making the will. If not operating then, they do not affect its validity.” (Emphasis supplied.) Again, it is obvious that an essential element was not alleged.
In Merrick v. Continental Illinois National Bank & Trust Co., 10 Ill.App.3d 104, it is obvious that essential elements were not pleaded. The court stated on page 112, “However, the complaint does not allege the existence of a confidential relationship between the respondents and decedent.” The ultimate facts showing the existence of a confidential or fiduciary relationship were not pleaded.
In Lake v. Seiffert, 410 Ill. 444, 450, there was no proof of a fiduciary relationship (the court felt that being frequent drinking companions was not enough).
Thus, in every case cited by the majority it may be seen that an essential element was either not afleged or proved.