Opinion filed May 6, 2016 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2016

DALE A. EIZENGA, as Trustee of the Walter ) Appeal from the Circuit Court B. Westendorf Trust dated August 27, 1997, ) of the 14th Judicial Circuit, ) Whiteside County, Illinois. Plaintiff, ) ) v. ) ) UNITY CHRISTIAN SCHOOL OF FULTON, ) ILLINOIS, an Illinois Not-For-Profit ) Corporation; THE CITY OF MORRISON, ) ILLINOIS, a Municipal Corporation; ODELL ) PUBLIC LIBRARY, a Local Public Library; ) SHRINERS HOSPITALS FOR CHILDREN, a ) Colorado Nonprofit Corporation; CAMP ) COURAGEOUS OF IOWA, an Iowa Not-For- ) Profit Corporation; FULTON ASSOCIATION ) FOR COMMUNITY ENRICHMENT (FACE), ) an Illinois Not-For-Profit Corporation; ) Appeal No. 3-15-0519 MORRISON EDUCATION FOUNDATION, ) Circuit No. 13-CH-133 a Private Foundation; LYNDA ENDRESS; ) PEGGY JEAN WEAVER; LISA MADIGAN, ) Attorney General of the State of Illinois; and ) HEIRS AT LAW OF WALTER B. ) WESTENDORF, deceased, ) ) Defendants ) ) (Camp Courageous of Iowa, ) ) Petitioner-Appellee, ) ) v. ) ) Russell Holesinger, ) The Honorable ) William S. McNeal, Respondent and Contemnor-Appellant). ) Judge, presiding. ) ____________________________________________________________________________

JUSTICE McDADE delivered the judgment of the court, with opinion. Presiding Justice O’Brien and Justice Schmidt concurred in the judgment and opinion.

____________________________________________________________________________

OPINION

¶1 The plaintiff, Dale A. Eizenga, as the Trustee of the Walter B. Westendorf Trust, filed an

interpleader action against numerous defendants, including Unity Christian School of Fulton and

Camp Courageous of Iowa, and alleged that Westendorf’s attorney, Russell J. Holesinger,

exerted undue influence over Westendorf regarding the gift of nearly the entirety of the Trust

estate to Unity Christian School. Holesinger refused to disclose certain documents in discovery,

alleging that they were protected by the attorney-client privilege and the work product doctrine.

The circuit court disagreed and ordered Holesinger to produce the documents. Holesinger

appealed after he was found in contempt for failing to comply with the court’s order. On appeal,

Holesinger argues that the circuit court erred when it ruled that the documents were not protected

by the attorney-client privilege or the work product doctrine. He also requests that we vacate the

order finding him in contempt for failing to comply with the circuit court’s order to disclose the

documents. We affirm in part and vacate in part.

¶2 FACTS

¶3 Westendorf created the Trust on August 27, 1997. The Trust provided that while

Westendorf was living, the trustee would pay Westendorf all of the Trust’s net income and any

of the principal that Westendorf requested in writing. Westendorf was to act as trustee unless he

died, resigned, became incapacitated, or otherwise. Eizenga was named as the successor trustee.

2 ¶4 At Westendorf’s death, the Trust estate was to “consist of the principal together with any

accrued and undistributed income of the trust at the time of [Westendorf’s] death, plus any

property added to the trust estate by [Westendorf’s] Will, or payable to the Trust by reason of the

death of [Westendorf], reduced by the payment and gifts provided for under the preceding

Articles.”

¶5 The Trust also provided that upon Westendorf’s death, $50,000 of the balance of the

Trust estate would be paid to Peggy Jean Weaver, unless the balance was less than $100,000, in

which instance the entire balance would be paid to her. That provision would lapse in the event

that Weaver predeceased Westendorf. After that distribution, the remainder of the Trust estate

was to be paid in three equal parts to Odell Public Library (in memory of Mable Baker

Westendorf), Shriners Hospital for Children, and the City of Morrison (to be used by the Parks

and Recreation Committee and with a focus on planting sugar maple trees in certain areas of the

city).

¶6 The first amendment to the Trust was executed on July 16, 2004, and provided new

distribution instructions. First, Westendorf’s property at 223 East Main in Morrison was to be

given to his friend, Lynda Endress. In the event that she predeceased him, the property was to be

sold and distributed in equal shares to Shriners Hospital for Children, Camp Courageous, and the

Morrison Education Foundation. After that distribution, the remainder of the Trust estate was to

be paid in equal shares to those three entities. The first amendment also named Endress as

successor trustee and Eizenga as second successor trustee.

¶7 The second amendment to the Trust was executed on November 5, 2004, and contained

changes to the instructions regarding the Trust’s expenses.

3 ¶8 The third amendment to the Trust was executed on December 13, 2006, and provided

modified distribution instructions. The Morrison Education Foundation was removed from the

distribution and replaced with Unity Christian School. Also added in that distribution to Unity

Christian School was the following statement:

“It is my hope and desire that a portion of these funds be used to

further the business curriculum of Unity with a special emphasis

on financial planning, personal finance, and investing. I have been

blessed by investing on a regular basis. I was assisted by a mentor,

and I have seen the benefits of learning the skills necessary to be

successful in obtaining financial freedom. The above directions

are not mandatory, but they are intended to provide a direction for

the use of a portion of this gift as determined by the Unity

Christian School board.”

¶9 In addition, the third amendment changed the trustee designation to Endress and

Holesinger as successor co-trustees, and Eizenga as second successor trustee.

¶ 10 The fourth amendment to the Trust was executed on March 6, 2009, and provided

modified distribution instructions. The property distribution to Endress was retained, but the

residual balance was to be split equally between Shriners Hospital for Children and Unity

Christian School. The above-quoted statement regarding the distribution to Unity Christian

School was also retained.

¶ 11 The fifth amendment to the Trust was executed on June 10, 2010, and provided modified

distribution instructions. The property distribution to Endress was retained, but one-third of the

residual balance was to be paid to the Fulton Association for Community Enrichment (FACE),

4 and the other two-thirds to Unity Christian School. With regard to FACE, the distribution was

“to be used for the maintenance, support, promotion and growth of Fulton’s Heritage Canyon as

a means of recognizing our ancestors for the contributions they have made for the greater good

of our communities. Preserving our past helps us to remember and celebrate our heritage.” With

regard to the distribution to Unity Christian School, the accompanying statement was changed to

read: “It is my hope and desire that a portion of these funds be used to further the business

curriculum of Unity with a special emphasis on financial planning, personal finance, and

investing. The above directions are not mandatory, but they are only intended to provide a

possible direction for the use of a portion of this gift.”

¶ 12 The sixth amendment to the Trust was executed on April 15, 2011, and provided several

changes. First, with regard to distribution, the property distribution to Endress was removed and

replaced with a distribution of $5,000. Second, Eizenga was named as successor trustee and

Chris Hawkins as second successor trustee. Third, some changes were made to the instructions

regarding the Trust’s expenses.

¶ 13 The seventh amendment to the Trust was executed on October 5, 2012, and provided

several changes. First, the $5,000 distribution to Endress was retained, but the remainder of the

Trust estate was to be distributed to Unity Christian School. The accompanying statement

regarding the distribution to Unity Christian School, as it appeared in the fifth amendment, was

retained. Second, Holesinger replaced Hawkins as second successor trustee. Third, some

changes were made to the instructions regarding the Trust’s expenses. Fourth, a small provision

was added regarding the trustee’s management of Westendorf’s commercial building.

¶ 14 Westendorf died on July 10, 2013, and on August 13, 2013, Eizenga filed an interpleader

action regarding the Trust. Eizenga stated in the complaint that he was “well and personally

5 acquainted” with Westendorf, whom Eizenga did not believe to be a religious person or to have

any connection to Unity Christian School. The complaint alleged that Holesinger exercised

undue influence over Westendorf with regard to the Trust, as Holesinger “was and is an avid

booster of the school.”

¶ 15 The complaint was amended on January 29, 2014, and added more specific allegations

regarding Holesinger. The complaint alleged that Holesinger was Unity Christian School’s

attorney and that, inter alia, he promised to waive his fee for administering the Trust to induce

Westendorf to contribute to Unity Christian School.

¶ 16 Counterclaims were also filed by several defendants that had been listed as beneficiaries

of the Trust at various times between its creation and Westendorf’s death.

¶ 17 A subpoena for production of certain documents was served on Holesinger in July 2014.

He refused to produce numerous documents, and he filed a motion to quash the subpoena,

alleging that the documents were protected by the attorney-client privilege and the work product

doctrine. In the privilege log Holesinger filed with the circuit court, he listed documents

spanning from 1996 to 2014, including, inter alia, letters to Westendorf, notes on estate planning

matters, notes from calls, notes regarding communications about potential beneficiaries of the

Trust, notes on calculations and valuations, and timesheets. Nearly all of the documents that

were dated after the complaint was filed in this case on August 13, 2013, were timesheets.

¶ 18 On April 10, 2015, the circuit court held a hearing on the document production matter.

After hearing arguments, the court took the matter under advisement and issued a written

decision five days later. The court denied Holesinger’s motion to quash, finding:

“The Court *** concludes the attorney-client privilege does

not survive the death of Walter Westendorf as it applies to the

6 documents at issue, because privilege does not apply to

communications relevant to an issue between parties who claim

through the same deceased client, regardless of whether claims are

by testate or intestate succession, or by inter vivos transaction.

Lamb v. Lamb, [

(1984)]. This case is

very similar to a will contest, but it is not a will contest. The issues

in this case are between parties who claim to be the beneficiaries

under the Walter Westendorf trust and amendments thereto, and

interested parties are seeking to have various trust provisions set

aside alleging undue influence by the settlor/decedent’s attorney.

In summary, this action contests the validity of certain trust

amendments executed by Walter Westendorf and falls within the

above exception to survival of attorney-client privilege.”

The court also ruled that the work product doctrine did not apply because the documents

Holesinger refused to produce “do not appear to be related to theories, mental impressions, or

litigation plans prepared by Attorney Holesinger in anticipation of pending or threatened

litigation.”

¶ 19 Holesinger refused to comply with the circuit court’s order, and on June 26, 2015, he was

found in indirect civil contempt and assessed a penalty of $1 per day for any continued refusal to

produce the documents.

¶ 20 Holesinger appealed.

¶ 21 ANALYSIS

7 ¶ 22 First, Holesinger argues that the circuit court erred when it ruled that the documents were

not protected by the attorney-client privilege. Specifically, he contends that the only exception

to the rule that the attorney-client privilege survives the client’s death exists when a will is

contested. Because this case involves a trust and not a will contest, he claims the court erred

when it extended the exception to a trust.

¶ 23 In relevant part, Illinois Supreme Court Rule 201(b)(2) (eff. Jan. 1, 2013) provides that

“[a]ll matters that are privileged against disclosure on the trial, including privileged

communications between a party or his agent and the attorney for the party, are privileged

against disclosure through any discovery procedure.” The attorney-client privilege “is intended

to encourage ‘full and frank communication between attorneys and their clients and thereby

promote broader public interests in the observance of law and the administration of justice.’ ”

Swidler & Berlin v. United States,

(1998) (quoting Upjohn Co. v. United

States,

(1981)). The privilege is the exception and the duty to disclose is the

rule; accordingly, the privilege should be confined as narrowly as possible. Waste Management,

Inc. v. International Surplus Lines Insurance Co.,

(1991). Additionally,

Illinois “adhere[s] to a strong policy of encouraging disclosure, with an eye toward ascertaining

that truth which is essential to the proper disposition of a lawsuit.”

We review de novo the

question of whether the attorney-client privilege prohibits the disclosure of sought-after

information. Center Partners, Ltd. v. Growth Head GP, LLC,

.

¶ 24 In general, the attorney-client privilege survives death. Swidler,

.

However, an exception to the general rule has been recognized in testamentary contexts.

. Both the attorney-client privilege and the testamentary exception arose from the

common law (Brunton v. Kruger,

, ¶ 55), and the testamentary exception was

8 recognized by our supreme court in the nineteenth century. Fossler v. Schriber,

, 173-

74 (1865); Scott v. Harris,

(1885) (noting that while the attorney-client

privilege typically survives the client’s death, “[i]n cases of testamentary disposition, the rule

seems to be otherwise”); see also Wilkinson v. Service,

(1911) (holding that

“[w]hile [attorney-client] communication might be privileged if offered by third persons to

establish claims against the estate, when the contest is between the heirs or next of kin of the

testator the rule is otherwise”); Mason v. Willis,

(1945) (noting that

“although statements made by a testatrix to her attorney would be privileged if offered in

evidence in a suit against her, they are not privileged after her death”).

¶ 25 We acknowledge the case law in this state that has described the testamentary exception

to the attorney-client privilege as applying only in the context of a will contest. See Hitt v.

Stephens,

(1997) (holding that “[t]he only context in which a client’s

death might affect the viability of the privilege is a will contest”); DeHart v. DeHart,

(holding that the attorney-client privilege does not survive the client’s death with

respect to a will); Adler v. Greenfield,

(holding that “the

attorney-client privilege survives the death of the client, except in the case of a will contest”

(citing Hitt,

)). However, none of these cases had to address the situation

presented by this case. See Hitt,

(involving a replevin action in which

the sole heirs of the decedents sought the disclosure of the estate files from the decedents’ law

firm 13 and 40 years after the estates were closed); DeHart,

(involving a will contest and “claims of testamentary capacity and undue influence”); Adler,

(refusing to apply the testamentary exception in a legal

malpractice case in which the a trustee of a decedent’s trust sought the disclosure of

9 communications the decedent’s attorney made to a third party). In fact, a closer examination of

the exception leads us to the conclusion that it is the rationale behind it that is of paramount

importance, rather than the question of whether the situation involves a will contest.

¶ 26 In United States v. Osborn, the United States Court of Appeals stated:

“The rationale behind the exception to the general rule is that the

privilege itself is designed for the protection of the client, and it

cannot be said to be in the interests of the testator, in a controversy

between parties all of whom claim under the testator, to have those

confidential communications of the testator and attorney excluded

which are necessary to a proper fulfillment of the testator's intent.”

United States v. Osborn,

, 1340 n.11 (9th Cir. 1977).

See also Glover v. Patten,

(1897); Swidler,

.

¶ 27 While we are unaware of any Illinois cases that have applied the testamentary exception to the

attorney-client privilege in a case involving a trust, there is ample persuasive authority for doing

so.

¶ 28 The Restatement (Third) of the Law Governing Lawyers states that “[t]he attorney-client

privilege does not apply to a communication from or to a decedent relevant to an issue between

parties who claim an interest through the same deceased client, either by testate or intestate

succession or by an inter vivos transaction.” Restatement (Third) of the Law Governing

Lawyers § 81 (2000); see also Michael H. Graham, Graham’s Handbook of Illinois Evidence §

505.7, at 372 (10th ed. 2010) (stating that the attorney-client privilege “does not apply to a

communication relevant to an issue between parties who claim through the same deceased client,

regardless of whether the claims are by testate or intestate succession or by inter vivos

10 transaction”). The comments to section 81 of the Restatement (Third) are instructive: comment

(a) states that this section “is relevant, for example, in will-contest and similar litigation.”

(Emphasis added.) Restatement (Third) of the Law Governing Lawyers § 81 cmt. a (2000).

Comment (b) states:

“The exception in the Section is sometimes justified on the ground

that the decedent would have wished full disclosure to facilitate

carrying out the client's intentions. The dispute might involve

either testate or intestate succession or claims arising from inter

vivos transactions to which the decedent was a party. The witness

will most often be the decedent's lawyer, who is in a position to

know the client's intentions and whose testimony ordinarily will

not be tainted by personal interest. Suppressing such testimony

would hamper the fair resolution of questions of testator intent in

will-contest and similar types of cases. It is therefore probable that

the exception does little to lessen the inclination to communicate

freely with lawyers [citation].” (Emphasis added.) Restatement

(Third) of the Law Governing Lawyers § 81 cmt. b (2000).

This rationale has been repeatedly cited in cases discussing the testamentary exception. See,

e.g., Swidler,

; Lamb v. Lamb,

(1984); Zook v.

Pesce,

(Md. 2014) (noting that the rationale behind the exception was to

ensure the decedent’s donative intent was honored, and holding that the exception can apply “in

a dispute between putative heirs or devisees under a will or trust”). Our supreme court also

reiterated this rationale in DeHart: “a decedent would (if one could ask him) forgo the privilege

11 so that the distribution scheme he actually intended can be given effect.” DeHart,

(citing Hitt,

, and Glover,

, as

supporting authority).

¶ 29 Even if a will contest is the primary circumstance under which this exception can apply,

certainly it is not the only circumstance. In this case, Westendorf created the Trust during his

life—an inter vivos transaction. He changed the beneficiaries of the Trust several times before

he died. A dispute has arisen between former beneficiaries of the Trust and the current

beneficiary, Unity Christian School, based on undue influence that attorney Holesinger allegedly

exerted over Westendorf. The documents Holesinger claims are privileged are relevant to the

resolution of that dispute. As the circuit court indicated, this case presents no material difference

between a will contest for purposes of the testamentary exception to the attorney-client privilege.

Because this case fits squarely within the purview of the rationale behind the testamentary

exception (see, e.g., Swidler,

; DeHart,

), we hold that

the circuit court did not err when it ruled that Holesinger’s documents were not protected by the

attorney-client privilege.

¶ 30 Second, Holesinger argues that the circuit court erred when it ruled that his documents

were not protected by the work product doctrine. Holesinger claims that the documents he

withheld include his “notes, memos, and correspondence to the client relative to legal services

*** which documents contain Holesinger’s confidential theories and mental impressions.” In

addition, Holesinger claims that the documents he withheld also include “invoices, timesheets,

and calendar entries, which contain Holesinger’s thoughts and mental impressions in that they

reflect the legal work he decided to perform on Westendorf’s behalf, which decisions could only

be made by an attorney.”

12 ¶ 31 In relevant part, Illinois Supreme Court Rule 201(b)(2) (eff. Jan. 1, 2013) provides that

“[m]aterial prepared by or for a party in preparation for trial is subject to discovery only if it does

not contain or disclose the theories, mental impressions, or litigation plans of the party's

attorney.” We review de novo the question of whether the work product doctrine protects the

disclosure of sought-after information. Shields v. Burlington Northern & Santa Fe Ry. Co.,

(2004).

¶ 32 In Waste Management, our supreme court stated the following with regard to the work

product doctrine:

“The work-product doctrine provides a broader protection than the

attorney-client privilege, and is designed to protect the right of an

attorney to thoroughly prepare his case and to preclude a less

diligent adversary attorney from taking undue advantage of the

former's efforts. See Hickman v. Taylor, [

(1947)].

Illinois has taken a narrow approach to the discovery of

attorney work product. The overriding considerations under our

discovery rule are ascertainment of the truth and expedited

disposition of the lawsuit. (Monier v. Chamberlain, [

(1966)]). Thus, under our rule, ordinary work product,

which is any relevant material generated in preparation for trial

which does not disclose ‘conceptual data’ (Monier,

), is freely discoverable (134 Ill. 2d R. 201(b)(2)). Opinion or

‘core’ work product, which consists of materials generated in

preparation for litigation which reveal the mental impressions,

13 opinions, or trial strategy of an attorney, is subject to discovery

upon a showing of impossibility of securing similar information

from other sources. Monier,

.” Waste

Management,

.

¶ 33 Our review of the record in this case reveals no error in the circuit court’s decision that

the work product doctrine did not apply to the documents listed in Holesinger’s privilege log.

Again, the privilege log listed documents spanning from 1996 to 2014, including, inter alia,

letters to Westendorf, notes on estate planning matters, notes from calls, notes regarding

communications about potential beneficiaries of the Trust, notes on calculations and valuations,

and timesheets. Essentially the only documents that were dated after the complaint was filed in

this case on August 13, 2013, were timesheets. As the circuit court found, there is no indication

that any of the documents listed in the privilege log were created in preparation for any

impending or pending litigation. We are unpersuaded by Holesinger’s claims to the contrary,

and we therefore hold that the circuit court did not err when it ruled that Holesinger could not

assert the work product privilege with regard to the documents listed in the privilege log. See,

e.g., Lawndale Restoration Ltd. Partnership v. Acordia of Illinois, Inc.,

, 32-

33 (2006).

¶ 34 Lastly, Holesinger asks this court to vacate the order finding him in contempt for failing

to comply with the circuit court’s order to disclose the documents.

¶ 35 “A finding of contempt against an attorney will not stand if the attorney acted in good

faith to serve his client and the court.” Adler,

. Contempt

proceedings are an appropriate method of challenging the propriety of a circuit court’s discovery

ruling. Reda v. Advocate Health Care,

(2002). In this case, the issue of

14 whether the exception to the post-death viability of the attorney-client privilege extends to trusts

was unclear and the basis for the contempt order against Holesinger was an apparent good faith

attempt to serve his client and the court. Accordingly, we vacate the circuit court’s order finding

Holesinger in contempt. See Adler,

.

¶ 36 CONCLUSION

¶ 37 The judgment of the circuit court of Whiteside County is affirmed in part and vacated in

part.

¶ 38 Affirmed in part and vacated in part.

15