On March 21, 2013 the Supreme Court of Illinois filed its decision in the case of DeHart v. DeHart, No. 114137. While this case involved numerous will contest issues, two issues were addressed that will have a profound effect on estate planning and estate litigation: the Court’s recognition of equitable adoption and the establishment of a standard for a limited waiver of the attorney-client privilege after a testator’s death by a person claiming to be equitably adopted.

Concept of Equitable Adoption

Equitable adoption where it has been previously recognized is not a legal adoption, but rather an equitable remedy in which a court will find a child who was the subject of an unfulfilled contract to adopt to be considered as if the child was actually adopted so the child can be considered an heir of the putative adoptive parent. Tracy Bateman Farrell, Modern Status of Law as to Equitable Adoption or Adoption by Estoppel, 122 A.L.R. 5th 205, § 2(a). The court’s recognition does not confer the legal status of adopted child, but rather is merely an equitable remedy. Id. In most states that have recognized equitable adoption “the most important prerequisite to application of the doctrine in most states is proof that a contract of adoption was entered into between the foster parent and the child’s natural parent or some individual or institution standing in loco parentis.” Id.

Facts Pertaining To Equitable Adoption in DeHart1

James DeHart was born out of wedlock as James Thomas Staley, Jr. to Virginia Boswell and James Staley, Sr. in the 1940s. James Staley, Sr. abandoned James when he was an infant and Virginia married Donald DeHart when James was two. Donald and Virginia raised James together and held him out as their son during their lives. Donald also provided James with a birth certificate indicating that Donald was James’ father. In 2000 James applied for a passport and needed a certified copy of his birth certificate. When he obtained a copy, the birth certificate identified James Staley, Sr. as James’ natural father. James confronted Donald about the birth certificate, to which Donald replied that he believed he had adopted James and hired a lawyer to do so.

Virginia subsequently passed away and Donald remarried. Donald executed a will one year after he remarried naming his second wife and his siblings as heirs and stating that he had no children. Donald subsequently passed away and when his will was admitted to probate James filed a will contest. James subsequently amended his complaint to add claims of contract to adopt and equitable adoption for the purpose of being able to claim as an heir in the event he was successful in setting aside Donald’s will.

Illinois’ Broadening of Equitable Adoption

In DeHart the Court recognized the vast majority of states require a contract in order for a claim of equitable adoption and that in that context equitable adoption is “essentially indiscernible from the Illinois cases involving a failure to follow the statute of adoption that have proceeded on a contract theory.” DeHart v. DeHart, 2013 IL 114137, ¶ 52 (Mar. 21, 2013).

Nonetheless, the Court chose to allow for equitable adoption without a contract by requiring a plaintiff to prove the “decedent’s intent to adopt and form a close and enduring familial relationship”. Id. at ¶ 62. The Court noted that the decedent’s intent “must not be just as readily harmonizable with the mere intention to provide a good home, but must instead indicate a clear intent to adopt or to continuously represent to the plaintiff and the world at large that the plaintiff was the decedent’s natural child.” Id., at ¶ 63 (Emphasis added).

The Court did recognize that “[f]irst, and foremost, equitable adoption cases in the inheritance context deal with deceased persons who can no longer testify as to their intent” and did require that proof be made by clear and convincing evidence. Id., at ¶ 64.

Potential Estate Planning and Litigation Impacts

Estate planners going forward will need to not merely ask if a client has any children or adopted any children, but will need to delve deeper into a client’s background to determine if there are any potential equitably adopted children.

• Is the client a stepparent, and if so, did the client hold himself/herself out as the natural parent of the child?

• Is the client aware of any persons with whom he/she has had a close relationship that may claim to be equitably adopted after the client has passed away?

Estate planners should also review the definition of “child” in their will and trust templates to make sure they account for not only equitable adoption, but also contract to adopt scenarios. One possibility is to identify an adopted child as a child who’s adoption has been completed in accordance with the Illinois Adoption Act (750 ILCS 50/1 et seq.). Another possibility is to include language that expressly disclaims any children that may claim to be equitably adopted or the subject of a contract to adopt and make sure the client expressly includes those children who are not naturally born or legally adopted in the will and/or trust. Considerations regarding corrective language should not only be done prospectively, but current clients should have their wills reviewed to make sure that there are no unintended consequences.

Corrective language should prevent an accidental heirship from being created, but will not prevent a person from challenging the validity of a will or trust in court. A person claiming to be equitably adopted could seek to have a will or trust set aside for lack of testamentary capacity, as in DeHart, by claiming that the decedent did not have the capacity to know the natural objects of his or her bounty because the person making the claim should have been identified in the decedent’s will. If such an allegation were combined with facts similar to DeHart, then a claim for lack of testamentary capacity would probably have to be litigated and not disposed of at the initial pleadings stage.

Considering that the testator cannot speak, the most likely and credible source of evidence for trial will be the attorney that drafted the will or trust that is being contested. The attorney who prepared the will or trust expect to be deposed and for his notes to be the subject of a request for production. The attorney’s notes should reveal the questions and answers of the testator regarding the subject of equitable adoption, as well as contract to adopt. An attorney’s questions should be probing and approach the issue from multiple perspectives because a client may believe that because he/she is filling out a legal document that only legally adopted children should be included.

Standard for Limited Waiver of Attorney-Client Privilege to Persons Claiming to be Equitably Adopted in Estate Contests

The court in DeHart also addressed a situation that will be common in future will contests involving equitable adoption: at what point is the attorney-client privilege waived in favor of a person who claims to be equitably adopted?

Prior to DeHart there has been a limited waiver of the attorney-client privilege in favor of heirs and legatees of a decedent because it is assumed that the decedent would want his/her intentions known. Wilkinson v. Service, 249 Ill. 146, 150-51, 94 N.E. 50, 52 (Ill. 1911). In DeHart the Court addressed the issue of when a person claiming to be equitably adopted should be considered an heir for the purpose of seeking privileged information. The Court held that James “need only make an initial evidentiary showing that he is an heir or next of kin . . . .” DeHart, 2013 IL 113137, ¶ 73. The court noted that if a prima facie case is shown that the Estate would need to rebut the evidence provided by James. Id. Therefore, while a person cannot merely allege that he or she was equitably adopted to seek to have the attorney-client privilege waived, the threshold for waiver to obtain privileged communications is a very low standard.

Conclusion

Equitable adoption is now recognized in Illinois and estate planners and litigators need to be aware of the ramifications of this new theory on their practices. While the impact on successful future litigation on this theory is unknown, the likelihood of attorneys raising this theory as the basis to establish standing and contest wills and trust is likely to increase. Therefore, it is prudent for estate planners to take affirmative steps to make sure that a client’s familial situation is clearly understood during the estate planning process so that steps can be taken to make sure that inadvertent heirships can be minimized and the true intent of a client is expressed. ■

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1. DeHart was decided on a motion to dismiss pursuant to Illinois Code of Civil Procedure section 5/2-615 so the following facts from James DeHart’s Second Amended Complaint were taken by the Court as true for the purpose of determining the legal sufficiency of James DeHart’s Second Amended Complaint.

Edward R. Sherman is an attorney in the Oak Brook firm of Lillig & Thorsness, Ltd., and was among the counsel on appeal for Blanca DeHart, Donald DeHart's second wife. Mr. Sherman's practice includes civil litigation in multiple areas, as well as appeals. He is a member of the Appellate Lawyers Association, Illinois Association of Defense Trial Counsel, as well as the Defense Research Institute’s Appellate Advocacy Committee where he is the Appellate Rules Vice-Chair. Mr. Sherman can be reached by email at esherman@lilliglaw.com or (630) 571-1900.