dissenting in part and specially concurring in part:
I respectfully dissent from the majority’s conclusion that count I is sufficient to state a claim that Lidia has breached an oral agreement she allegedly made with Anthony to execute mutual and reciprocal wills. Anthony’s children allege the legal conclusion that Anthony and Lidia entered into an oral agreement to execute mutual and reciprocal wills. They include allegations regarding the terms of this alleged oral agreement. However, Anthony’s children do not allege any specific facts from which the entry into or existence of an oral contract may be ascertained. Because of this lack of specific factual allegation to support the pleaders’ legal conclusion that Anthony and Lidia entered into such án oral agreement, count I is insufficient to state a cause of action for breach of an oral agreement to make mutual and reciprocal wills and was properly dismissed by the trial court.
I agree with the majority’s conclusion that count II of the complaint is insufficient to state a claim for tortious interference with an expectancy interest. However, I disagree with the majority’s reasons for this conclusion, and specially concur in the majority’s affirmance of the trial court’s dismissal of count II alleging tortious interference with an expectancy interest.
I
Anthony Scarpelli and his second wife, Lidia, executed separate wills whereby the entire estate of each spouse was left to the other spouse. In the event that one of the spouses predeceased the other, the estate, after two special bequests, was to pass equally to all of the spouses’ children from their previous marriages. During the marriage, the spouses held some of their funds in accounts at a bank in Chicago. Of these accounts, four were held in joint tenancy between Anthony and Lidia. Nine other accounts were held in revocable trusts wherein Anthony and Lidia were co-trustees. One of these trust accounts named no beneficiaries and was closed while Anthony was alive. The remaining eight revocable trust accounts specified as beneficiaries the children of both Anthony and Lidia from their first marriages. Anthony died after 23 years of marriage to Lidia. Within a week of Anthony’s death, all of the accounts at the Chicago bank were closed. Anthony’s will was duly filed in the circuit court of Cook County without probate. Approximately one week after the will was filed, Anthony’s children were informed by the Chicago bank, pursuant to their inquiry, that the accounts held by Anthony and Lidia at the bank had been closed as specified above.
Approximately 2V2 years after these events, Anthony’s children filed this action against Lidia, Lidia’s daughter and son-in-law, and Lidia’s granddaughter and grandson-in-law (hereinafter collectively Lidia’s children). Anthony’s children now allege that they believe that Anthony and Lidia orally agreed to execute each spouse’s will in exchange, for the other spouse’s will. They allege that they believe that Lidia has transferred in joint tenancy or gifted to Lidia’s children “all or substantially all” of the estate of Anthony and Lidia. They assert that by these transfers or gifts, Lidia has violated her oral agreement with Anthony and tortiously interfered with their expectancy interest. Initially, the trial court dismissed the complaint with leave to amend, on the ground that the complaint failed to allege sufficient facts to indicate the existence of an oral agreement between Anthony and Lidia. Following amendment, the trial court dismissed the complaint with prejudice, finding it insufficient to demonstrate the existence of the alleged oral agreement. Anthony’s children appeal.
II
Upon review, the majority concludes that the complaint is sufficient to state a claim that Lidia breached an oral agreement with Anthony to make mutual and reciprocal wills. I cannot concur in this conclusion.
Anthony’s children argue that Anthony and Lidia orally agreed that each of their wills was executed in exchange for the other’s will, such that once Lidia took under Anthony’s will, she could not later revoke her own will. In order to show that Anthony and Lidia entered into such an oral agreement with respect to their wills, Anthony’s chil- ' dren must allege specific facts to demonstrate the existence of the oral agreement itself; if they allege no more than the legal conclusion that such an agreement was entered into, their complaint is factually insufficient to state a claim. (See Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615; In re Beatty (1987), 118 Ill. 2d 489, 499; Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426, 430 N.E.2d 976.) Also, factual allegations to establish the existence of this oral contract generally may not derive exclusively from the mere circumstance that the spouses’ wills are mutual and reciprocal. As the court observed in Proctor v. Handke, “Mutual wills, however, are not, generally, of themselves sufficient evidence of a contract, and the consideration to support it must be aliunde the wills. (Monninger v. Koob (1950), 405 Ill. 417, 422, 91 N.E.2d 411; Frese v. Meyer (1945), 392 Ill. 59, 64, 63 N.E.2d 768.) The mere existence of mutual wills does not lead to a presumption of contract nor is it evidence that such a contract does, in fact, exist. (Campbell v. Cowden (1974), 18 Ill. App. 3d 500, 503, 309 N.E.2d 601.)” Proctor v. Handke (1983), 116 Ill. App. 3d 742, 746-47, 452 N.E.2d 742, 746; see generally 1 Page, Wills §11.1, at 554 (Bowe-Parker rev. ed. 1960).
There is nothing in the amended complaint of Anthony’s children to indicate the existence of the alleged oral agreement. As the majority notes, “the existence of a binding contract between Lidia and Anthony is not specifically expressed in the wills, nor do either of the wills contain any reference to each other.” (165 Ill. App. 3d at 872.) In fact, both wills leave all of the decedent spouse’s property “as and for [the surviving spouse’s] property forever.” The only matters alleged by Anthony’s children to demonstrate the existence of the oral contract are the existence of the mutual and reciprocal wills and the circumstance that they were executed by two spouses. These facts do not establish the existence of an oral contract between the two spouses to make irrevocable mutual and reciprocal wills. Consequently, the amended complaint is factually insufficient to state a claim for which relief may be granted.
The majority finds persuasive that Anthony’s children make detailed allegations regarding the terms of the alleged contract. I disagree. The alleged terms of the oral agreement cannot serve as substitute for specific factual allegations demonstrating the very entry into and existence of the alleged oral agreement. Also, contrary to the majority’s reasoning, Monninger v. Koob (1950), 405 Ill. 417, 91 N.E.2d 411, demonstrates that count I of the amended complaint pleads insufficient facts to state a cause of action. Notwithstanding the distinctions between Monninger and the instant case, Monninger supports the conclusion that Anthony’s children plead nothing which, if proved, would permit the inference that Anthony and Lidia agreed to make mutual and reciprocal wills.
In Monninger, the plaintiffs presented testimony tending to show that the testators-spouses entered into an oral agreement to make mutual and reciprocal wills. As the majority notes, this testimony was provided “by interested persons about what people who were deceased at the time of the hearing said.” (Emphasis added.) (165 Ill. App. 3d at 872.) The evidence in Monninger also indicated that “both husband and wife knew they could make new wills at any time.” 165 Ill. App. 3d at 872.
In this case, Anthony’s children fail to allege anywhere in their I complaint that Anthony and Lidia ever said or wrote anything to any of their children, or anyone else, about an oral agreement to make mutual and reciprocal wills. Anthony’s children also fail to allege specific facts to show that Anthony or Lidia believed they could not revoke their wills after one of the spouses had died. Without such specific factual allegation, Anthony’s children have not established that Anthony land Lidia entered into an oral agreement. The circumstance that Mon-Winger was an appeal from a judgment entered upon full evidentiary ¡hearing, while this case comes before us on the pleadings, does not ¡dictate the conclusion that the complaint at issue here is factually sufficient to state a claim.
The trial court provided Anthony’s children an opportunity to amend their complaint in order to plead sufficient facts to state a claim for breach of an oral agreement between Anthony and Lidia to make mutual and reciprocal wills, but they failed to remedy the deficiencies in their pleadings. Under these circumstances, the trial court properly exercised its discretion when it dismissed the amended complaint with prejudice. I would affirm.
Ill
In count II of their complaint, Anthony’s children allege that Lidia and her children have tortiously interfered with their expectancy interests. Anthony’s children argue that they have an expectancy interest in the marital estate by virtue of the oral agreement between Anthony and Lidia to make mutual and reciprocal wills. As stated above, the complaint is factually insufficient to establish that Anthony and Lidia entered into an oral agreement to execute mutual and reciprocal wills. Consequently, count II is insufficient to state a claim for tortious interference with an expectancy interest which is premised on Anthony and Lidia’s entry into an oral agreement to make mutual and reciprocal wills.
Anthony’s children also maintain that by setting up the revocable trust agreements at the Chicago bank and naming the children as beneficiaries, Anthony affirmatively took steps to provide an expectancy interest for all of the children from the spouses’ first marriages. They assert that Lidia tortiously interfered with this expectancy interest when she closed those accounts. However, the complaint of Anthony’s children acknowledges that the trust accounts were revocable. Anthony’s children do not argue or allege that the accounts were to become irrevocable upon the death of one of the spouses, or that revocation required the consent of the beneficiaries of the trust. Anthony’s children do not allege that the trust accounts were not revocable without restriction by Lidia. (Cf. Northern Trust Co. v. Tarre (1981), 86 Ill. 2d 441, 427 N.E.2d 1217; Williams v. Springfield Marine Bank (1985), 131 Ill. App. 3d 417, 475 N.E.2d 1122.) Under these circumstances, count II of the amended complaint was properly dismissed for failure to state a claim. For these reasons, I specially concur in the majority’s affirmance of the trial court’s dismissal of count II of the complaint.
I would affirm the trial court’s dismissal of both counts I and II of the amended complaint of Anthony’s children.