specially concurring:
I agree that Imogene has standing to contest Levi’s most recent will, regardless of her status under the prior wills. I would reach that result for different reasons than the majority. I write separately because I believe that the majority’s analysis is flawed.
The majority premises its conclusion that Imogene has standing on the Probate Act’s “plain and unambiguous language” that “one’s status as an heir is sufficient, in itself, to confer standing to contest a will’s validity.” 209 Ill. 2d at 464. The majority notes that the Probate Act provides that “ ‘any interested person’ ” may contest a will. 209 Ill. 2d at 462, quoting 755 ILCS 5/8 — 1 (West 2002). Then the majority quotes the Probate Act’s definition of “interested person,” which states that an interested person is:
“ ‘one who has or represents a financial interest, property right or fiduciary status at the time of reference which may be affected by the action, power or proceeding involved, including without limitation an heir, legatee, creditor, person entitled to a spouse’s child or child’s award and the representative.’ (Emphasis added.)” 209 Ill. 2d at 462, quoting 755 ILCS 5/1 — 2.11 (West 2002).
The majority reads the italicized language to mean that heirs have standing as a matter of law and concludes that Imogene, as an heir, has standing regardless of prior wills. 209 Ill. 2d at 462, 464. For the following reasons, I believe the quoted language is ambiguous and the majority’s interpretation is an improper way to resolve the ambiguity.
First, the majority’s reading renders the first part of the definition — “one who has or represents a financial interest, property right, or fiduciary status *** which may be affected” — completely superfluous when heirs, legatees or creditors are at issue. In other words, the majority believes the definition means that an heir is an “interested person” regardless of whether there is any effect on her interests. Surely, an “interested person” should actually have an affected interest. If the legislature really intended to say that heirs are interested persons as a matter of law, it would have said an interested person is an heir, legatee, creditor or a person who has or represents a financial interest which may be affected. The legislature did not utilize that definition. A more rational reading of what the legislature said is that heirs, legatees and the others are examples of those who will typically have an interest affected by a probate proceeding. Since the language can be read in at least two different ways, the definition of “interested person” is ambiguous.
The majority’s interpretation of the definition fails for at least two reasons. First, under the majority’s reading, creditors are also interested persons as a matter of law, because the definition of “interested person” lists creditors along with heirs. As the majority notes, “ ‘any interested person’ ” has standing to contest a will. 209 Ill. 2d at 462, citing 755 ILCS 5/8 — 1 (West 2002). It is hard to believe the legislature intended to grant creditors standing to contest wills regardless of whether they have an interest actually affected by the will. Consider the following example. A creditor has a claim, but the amount is in dispute. He says to the executor, “Pay me the amount I say is owed, or I will tie up the estate by filing a will contest.” If creditors are “interested persons” as a matter of law, his threat may have to he taken seriously even if what he gets paid has nothing to do with the validity of the will.
Second, even if the majority could somehow escape the consequence that creditors have standing as a matter of law, it is problematic to grant heirs standing as a matter of law. 209 Ill. 2d at 464-65. Consider the following possibility. Testator T has three heirs, A, B and C. T’s will gives half to A and B each, and nothing to C. Under intestacy each gets a third. According to the majority, the Probate Act not only allows C, but also A and B, to contest the will. Why would A, for example, do so? Perhaps A feels C has been wronged through B’s undue influence on T. Perhaps A always said T was crazy and is now glad to pay for the opportunity to prove it in a court of law. In general, a party has standing only if he suffers some injury in fact to a legally cognizable interest. Glisson v. City of Marion, 188 Ill. 2d 211, 221 (1999), citing Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492 (1988). It is an odd view of standing, to put it mildly, that lets a private person litigate just to right a wrong done entirely to someone else or just to make a point. The majority’s view of the Probate Act’s definition of “interested person” reads this anomaly into the statute.
The majority offers another reason why the prior wills cannot affect Imogene’s standing. The majority contends that, because the most recent will revokes all prior wills, the prior wills are void and therefore we cannot refer to them to determine whether Imogene has standing. 209 Ill. 2d at 463. The majority correctly points out that a subsequent will may revoke a prior will. A will, however, is not effective for any purpose until it is admitted to probate. Crooker v. McArdle, 332 Ill. 27 (1928). An order admitting a will to probate is not final as to the validity of the will until the time for filing a will contest has run, and if a contest is timely filed the order has no force or effect for purposes of the contest. Sternberg v. St. Louis Union Trust Co., 394 Ill. 452, 459 (1946). Thus in this case the prior wills have not been not revoked by the present will for purposes of the will contest because the present will’s admission to probate is currently without effect.
Moreover, if the majority were correct that the prior wills are void, then a plaintiff in a will contest could not be an interested person based on his status as legatee under a prior will revoked by the present will. The prior will would be void and therefore could not be considered for purposes of standing. However, the law in Illinois has long been to the contrary. See, e.g., Kelley v. First State Bank of Princeton, 81 Ill. App. 3d 402, 413 (1980); Wilson v. Bell, 315 Ill. App. 418, 425 (1942). The majority’s reasoning overrules long-standing precedent sub silentio. There is no reason to do so to resolve this issue.
The appellate court, in a published opinion that the majority’s analysis ignores, reasons that the current will contest would benefit Imogene if successful, because it is the first step toward her avowed goal of challenging and voiding all the wills and taking as an heir. 338 Ill. App. 3d at 764. In other words, because there is nothing remote or speculative about Imogene’s interest in voiding all four wills, her interest in taking the first step by voiding this will is not remote or speculative. The majority fails to explain why it does not adopt the appellate court’s reasoning. I find it persuasive.
The appellate court cites In re Estate of Malcolm, 234 Ill. App. 3d 962 (1992). 338 Ill. App. 3d at 764. Malcolm involved three legatees who would each take approximately $200,000 under the testator’s first will, while the second and third wills only gave each of them $10,000. They sought to contest the third will. Similar to this case, the executor argued that the plaintiffs were not “interested persons” because their position under the second will was no better than under the third. Malcolm held the plaintiffs were interested persons, reasoning that if the necessity of challenging more than one will before realizing a gain were to defeat standing, a wrongdoer could insulate fraud from judicial scrutiny by creating two wills in succession. Malcolm, 234 Ill. App. 3d at 966, quoting In re Estate of Keener, 167 Ill. App. 3d 270, 274 (1988) (Heiple, J., dissenting). Likewise, if it were the law that Imogene lacks standing because the next three wills in line also give her nothing, that would provide a way to insulate overreaching from judicial scrutiny. We have held that the will contest provisions of the Probate Act should not be interpreted in a way that would work to protect fraud. Williams v. Crickman, 81 Ill. 2d 105, 116-17 (1980).
In sum, I find that the appellate court’s opinion, Malcolm and Crickman provide good reasons to reach the same result the majority reaches for the wrong reasons. Therefore, I agree that the judgment of the appellate court should be affirmed, but I respectfully decline to join the majority opinion.