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Docket No. 96402-Agenda 12-January 2004.

In re ESTATE OF LEVI E. SCHLENKER, Deceased (Imogene
Rodgers, Appellee, v. Troy Schlenker, Ex'r, et al. (Troy Schlenker, Appellant)).

Opinion filed April 1, 2004.

JUSTICE RARICK delivered the opinion of the court:

Imogene Rodgers filed a petition in the circuit court of Union Countypursuant to section 8-1 of the Probate Act of 1975 (755 ILCS 5/8-1(West 2002)) to contest the validity of her father's will. The executor ofthe father's estate moved to dismiss Imogene's petition under 2-619(a)(9)of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2002))based on lack of standing. The motion to dismiss was granted. Theappellate court reversed and remanded. 338 Ill. App. 3d 761. Wegranted the executor's petition for leave to appeal. 177 Ill. 2d R. 315. Forthe reasons that follow, we now affirm the appellate court's judgment.

The pertinent facts are undisputed. The father, Levi E. Schlenker,died on July 16, 2001. His wife, Blanche, had predeceased him, as hadtwo of the couple's four children, Darrell and Johnnie. The father wassurvived by his remaining two children, a daughter named ImogeneRodgers and a son named Troy, both of whom were adults. The fatherwas also survived three grandchildren, Bradley Schlenker and AshleySchlenker Funk, who were the offspring of his deceased son Darrell, andBrian Rodgers, who was Imogene's child.

Prior to his death, the father had allegedly executed four separatewills. The first was dated February 14, 1990. The last bore the dateJanuary 4, 2001. Only three of the wills have been found. These includeboth the February 14, 1990, and the January 4, 2001, wills, as well as awill dated September 16, 1998.

Following the father's death, a petition was filed in the circuit courtof Union County to have the January 4, 2001, will admitted to probate.See 755 ILCS 5/6-2 (West 2002). On August 22, 2001, the courtentered an order admitting that will to probate and issuing letterstestamentary to the executor. The person appointed executor was Troy,the father's surviving son.

Had the father died intestate, Imogene and Troy, his two survivingchildren, would each have inherited a one-third share of his real andpersonal property under the Illinois rules of descent and distribution. Theremaining one-third share would have been divided equally betweenBradley and Ashley, the two surviving children of his deceased sonDarrell. 755 ILCS 5/2-1(b) (West 2002). Under the January 4, 2001 willadmitted to probate, Imogene, Bradley and Ashley received nothing. Theywere expressly excluded from the will, as was Imogene's son, Brian.

Within the period prescribed by statute, Imogene filed a petitionunder section 8-1 of the Probate Act (755 ILCS 5/8-1 (West 2002)) tocontest the will's validity. As grounds for her petition, Imogene assertedthat her father had been impaired by a variety of physical and mentalconditions, including severe and chronic illnesses, and lacked the mentalcapacity to make decisions regarding the disposition of his property.Imogene further asserted that her brother Troy had breached fiduciaryduties he owed their father and exerted undue influence over him.

Acting in his role as executor, Troy moved to dismiss Imogene'spetition pursuant to section 2-619(a)(9) of the Code of Civil Procedure(735 ILCS 5/2-619(a)(9) (West 2002)). Troy's motion argued thatImogene lacked standing to contest the January 4, 2001, will because aruling on the will's validity would not affect her position. Even if Imogene'sallegations proved true and the January 4 will were declared to be invalid,there was still the matter of her father's three prior wills. According toTroy, Imogene stood to receive nothing under those wills just as she stoodto receive nothing under the January 4, 2001, will. As a result, the onlypossible way Imogene could ever claim a legally cognizable interest in herfather's estate is by showing that all of the prior wills were invalid too.Imogene's present petition, however, made no attempt to do that. It wasconcerned exclusively with the January 4 will. The prior wills were notchallenged.

The circuit court found Troy's position to be meritorious and grantedhis motion to dismiss. Imogene appealed. The appellate court reversedand remanded for further proceedings. It held that because Imogene wasan heir who would inherit from her father's estate if it was determined thatthe estate should be distributed under this state's laws of intestacy,admission of the January 4, 2001, will to probate would have adetrimental effect on her pecuniary interests. In the appellate court'sopinion, that was sufficient to confer on her the right to bring this willcontest. Validity of the previous wills, which have not yet been submittedor proved, did not have to be resolved first. "While judicial economy maybe best served if the 2001 will and all prior wills are consideredsuccessively in a single action," the court observed, the parties were notrequired to follow that approach. 338 Ill. App. 3d at 764.

Troy, as executor of his father's estate, petitioned our court for leaveto appeal from the appellate court's judgment. We allowed that petition(177 Ill. 2d R. 315), and the matter is now before us for review. Asindicated earlier in this opinion, the appeal arises in the context of an orderdismissing Imogene's will contest petition pursuant to section 2-619(a)(9)of the Code of Civil Procedure. Section 2-619(a)(9) permits involuntarydismissal where "the claim asserted *** is barred by other affirmativematter avoiding the legal effect of or defeating the claim." 735 ILCS5/2-619(a)(9) (West 2002). The phrase "affirmative matter" refers tosomething in the nature of a defense that negates the cause of actioncompletely or refutes crucial conclusions of law or conclusions of materialfact contained in or inferred from the complaint. The affirmative matterasserted by Troy in this case is Imogene's lack of standing. Our precedentmakes clear that lack of standing qualifies as "affirmative matter" within themeaning of section 2-619(a)(9) and may properly be challenged througha motion to dismiss under that statute. Glisson v. City of Marion, 188 Ill.2d 211, 220 (1999).

Under Illinois law, a plaintiff need not allege facts establishingstanding. Rather, it is the defendant's burden to plead and prove lack ofstanding. Where standing is challenged in a motion to dismiss undersection 2-619, a court must accept as true all well-pleaded facts inplaintiff's complaint and all inferences that can reasonably be drawn inplaintiff's favor. The court should grant the motion only if the plaintiff canprove no set of facts that would support a cause of action. ChicagoTeachers Union, Local 1 v. Board of Education of the City ofChicago, 189 Ill. 2d 200, 206 (2000). An order granting a motion todismiss based on lack of standing presents a question of law which wereview de novo. Lyons v. Ryan, 201 Ill. 2d 529, 534 (2002).

The right to contest the validity of a will is purely statutory. It must beexercised by the person or persons, in the manner, and within the timeprescribed by the Probate Act. Handley v. Conlan, 342 Ill. 562, 565(1931). Section 8-1 of the Probate Act of 1975 (755 ILCS 5/8-1 (West2002)) provides that a petition to contest the validity of a will may be filedby "any interested person." An "interested person" is defined by theProbate Act as

"one who has or represents a financial interest, property rightor fiduciary status at the time of reference which may be affectedby the action, power or proceeding involved, including withoutlimitation an heir, legatee, creditor, person entitled to aspouse's or child's award and the representative." (Emphasisadded.) 755 ILCS 5/1-2.11 (West 2002).

The text of this statute specifically includes heirs in the definition of"interested persons." "[T]he word 'heir' in its primary meaning designatesthe person appointed by law to succeed to the estate in case of intestacy."McCormick v. Sanford, 318 Ill. 544, 547 (1925). Stated another way,it refers to anyone who would take from a person's estate under thestatute of descent and distribution if that person died without leaving a will.See 6 Ill. Jur. Probate, Estates & Trusts