Lesnik v. Estate of Lesnik - 82 Ill. App. 3d 1102, 38 Ill. Dec. 452, 403 N.E.2d 683 (1980)

Rule:

In Illinois it has always been the law that an owner of property has the absolute right to dispose of his property during his lifetime in any manner he desires. Moreover, he may do so despite the fact that the transfer is for the express purpose of minimizing or defeating the statutory marital interests of the surviving spouse. The only exception to this rule occurs when the transaction is colorable or illusory and is tantamount to a fraud.

Facts:

Casmir Lesnik was married to Anastasia Lesnik for several years before she died. Before the marriage, Anastasia created a land trust, making her children from a previous marriage (defendants herein) the beneficiaries. She placed the parties' marital home, which she had paid for, in the trust prior to her death. Casmir filed suit challenging the conveyance. He claimed that his wife promised to make him a beneficiary of the trust, and he sought specific performance of an oral argument to make him a joint tenant in the trust agreement. The trial court entered summary judgment for defendants, and the husband appealed.

Issue:

Did the trial court err in granting summary judgment as to the conveyance?

Answer:

No.

Conclusion:

Casmir’s amended complaint contains the unsupported allegation that Anastasia conveyed the property into the trust in order to defraud him. It sets forth no facts from which we can infer an absence of donative intent. On the other hand, defendant Zbos' affidavit contains facts which would establish that Anastasia intended to make a present gift of a future interest to her children. Anastasia established the land trust seven years prior to her death and at no time altered the terms of the trust. During this period, her children were involved in the management of the trust res as evidenced by their participation in the decision to sell the Chicago property and to purchase the Homewood property. Moreover, Zbos made all the mortgage payments on the Homewood property. Because Casmir filed no counteraffidavit to contradict Zbos' statements, her affidavit must be taken as true. Casmir’s contention that the pleadings present a factual question is based solely on the unsupported allegation in his complaint. Conclusions, unsupported by facts admissible in evidence, do not create a genuine material issue of fact. Casmir’s pleadings are, therefore, not sufficient to raise a material issue of fact as to preclude entry of summary judgment.