According to the Illinois Department of Aging, approximately four to five percent of persons over the age of sixty are abused each year.1 The term "abuse" encompasses a wide range of egregious conduct, from neglect and abandonment, to financial exploitation, to psychological or physical abuse.2 With a current elderly population in Illinois of 1.5 million, the four to five percent estimate suggests that 75,000 elderly citizens are being victimized this year.3 Ninety percent of elder abusers are family members, predominantly the victims' adult children, the children's spouses, and the victims' spouses.4 With the steady aging of the nation's population, the number of elderly persons at risk will undoubtedly, albeit unfortunately, increase. The disgrace of elder abuse and neglect has only recently been given the attention by state legislatures and courts that it deserves. States still vary widely in the extent to which they investigate and report elder abuse, and in how they legislate against it. The Illinois Legislature, however, has consistently been in the forefront in battling abuse and neglect of the elderly.5 Thus, it should come as no surprise to learn that the Illinois Legislature has now enlisted the probate code in a new role, a role virtually unique among the states, in the fight against elder abuse. In addition, shortly before the Legislature's recent action, an Illinois appellate court also broadly interpreted the "slayer statute" section of the probate code and determined that elder abuse or neglect that results in death could bar the abuser from inheriting from the victim.6
On January 1, 2004, a new probate statute entitled "Financial Exploitation, Abuse, or Neglect of an Elderly Person or a Person with a Disability" takes effect. The new law prevents any person convicted of financial exploitation, abuse, or neglect of an elderly person from receiving "any property, benefit, or other interest by reason of the death of that elderly person" . . . "whether as heir, legatee, beneficiary, survivor . . . or in any other capacity."7 The law also covers the financial exploitation, abuse, or neglect of disabled persons.8 The new law can be circumvented only if the convicted person demonstrates "by clear and convincing evidence" that the victim knew about the conviction and still wanted to transfer property to the abuser.9 Since abusers are usually relatives of the elderly victim and, as such, are the persons most likely to become the elderly victim's heirs, using the probate code to address elder abuse seems commonsensical. However, other than California, no other state has yet taken the radical step of penalizing elder abusers in this fashion.10
The definitions in the new statute are derived from Illinois criminal statutes relating to elder abuse. "Financial exploitation" occurs when a person "in a position of trust or confidence" knowingly obtains control over an elderly person's property by means of deception or intimidation.11 "Abuse" includes not only overt acts of physical abuse, harassment or intimidation, but also acts that endanger the elderly person's life or injure his or her health, acts of abandonment, and omissions of acts that the caregiver "knows or reasonably should know are necessary" to preserve the elderly person's life or health. For omissions to constitute abuse, the elderly person's life or health must actually be affected by the caregiver's failure to perform.12 "Neglect," which constitutes more passive conduct than abuse, occurs when a caregiver negligently fails "to provide adequate medical care or maintenance" and this failure causes physical or mental injury or deterioration.13
This new amendment to the probate code merges society's more recent concern for the problem of elder abuse with a much older policy that "unworthy heirs" should be prevented from receiving property or other benefits from a decedent. The common law doctrine that "no one ought to benefit from his own evil" has long been codified in the Illinois probate code under the popularly titled "slayer statute."14 Prior to 1983, this section of the code was titled "Heir murdering ancestor," and it required that a person be convicted of the decedent's murder before he or she could be barred from inheriting or receiving property from a decedent.15 Now, the "slayer statute" is titled "Person causing death."16 The statute bars "a person who intentionally and unjustifiably causes the death of another" from receiving "any property, benefit, or other interest by reason of the death."17 The determination of whether a person has actually "intentionally and unjustifiably" caused the death of another can be made "by any court of competent jurisdiction separate and apart from any criminal proceeding arising from the death."18
Interestingly, the new probate statute, which is found directly after the "slayer statute" in the 2004 probate code, is both broader and narrower than the actual "slayer statute." The new statute is broader than the "slayer statute" in that it prevents a person from inheriting or receiving property from the decedent's estate even if the abuse, neglect, or financial exploitation was not directly related to the elderly person's death. By doing so, the new statute wholeheartedly embraces the notion that an unworthy heir should not profit from any type of misdeed directed at the decedent.19 However, the new statute is also narrower than the "slayer statute" because it requires an actual criminal conviction in order for it to take effect.20 By contrast, the "slayer statute" only requires a determination by a court that a person "intentionally and unjustifiably" caused the death of another. Proof by a "preponderance of the evidence" is sufficient.21
On first consideration this may seem paradoxical since the probate code requires that the more heinous conduct, causing a person's death, need only be proved by a preponderance of the evidence, whereas abuse, neglect, or financial exploitation of an elderly person requires anactual conviction, with its accompanying higher burden of proof. Perhaps with the stakes involved - the possibility that a person could be completely cut off from an expected inheritance or testamentary gift - the legislature determined that a higher standard of proof is required before preventing an alleged abuser from inheriting. In addition, were an actual conviction not required, courts could be swamped with post-death allegations by one set of the decedent's relatives that other relatives had abused or neglected the decedent and should not stand to inherit. This would unduly burden civil courts with difficult factual determinations and could hold estates in probate "limbo" for years.
Even without a conviction for financial exploitation, abuse, or neglect, however, it is still theoretically possible in Illinois to prevent an elder abuser from inheriting or benefiting from the elderly decedent's estate by means of the original slayer statute, if the abuse or neglect "intentionally and unjustifiably" caused the death of the elderly victim. A recent Illinois case, Estate of Malbrough,22 addressed this very issue. In Malbrough, the brother of decedent Ira Malbrough asked the court to deny an inheritance worth $3 million to Ira's wife. The petitioning brother claimed that the wife had caused Ira's death by intentionally denying him care and that the "slayer statute" should be applied. Prior to his death, Ira had been completely dependent on his wife, Graciela, for care. He was blind and incapacitated, and he required an oxygen machine and in-home care from a health services agency.23
As evidence that Graciela was responsible for Ira's death, the petitioner supplied affidavits from the health services agency's caregivers. The affidavits "set out with specificity" alleged instances of abuse and neglect by Graciela.24 The caregivers repeatedly found Ira's oxygen machine was repeatedly found turned off, leaving Ira "unresponsive with blue lips and fingertips." At other times, Ira would beg the caregivers for food and water and they found Ira's soiled clothing often was not changed. When the caregivers recommended that Ira be admitted to the hospital, Graciela repeatedly refused.25 On April 9, 1998, over Graciela's objections, Ira was finally admitted to the hospital. He died there six days later; his death certificate listed his cause of death as renal failure and congestive heart failure.26 According to the petitioner's complaint, renal failure is caused by "prolonged denial of food and liquid."27
Graciela moved to dismiss the petitioner's complaint, arguing that Ira's death certificate, which indicated that his death was caused by renal and congestive heart failure, conclusively defeated the petitioner's claim that she had "unjustifiably and intentionally" caused Ira's death.28 The Circuit Court, Cook County, agreed with Graciela's argument and dismissed the complaint. However, on appeal, the First District appellate court reversed the lower court and remanded the case for a determination of whether Graciela had caused Ira's death.29 The appellate court noted that the death certificate's determination that Ira's death was caused by renal and congestive heart failure did not preclude further inquiry into the cause of his death.30 The court also noted that the petitioner's complaint was supported by the affidavits that set forth specific instances of abuse and neglect. The petitioner had provided adequate support for the allegations in his complaint.31 Thus, even though Graciela was never convicted or even charged with any crime in connection with her husband's death, at least one Illinois court was persuaded that she could possibly have intentionally and unjustifiably caused his death, precluding her from any inheritance from her deceased husband's estate.
By finding that failure to provide adequate care could constitute "causing death," the appellate court's decision in Malbrough is as ground-breaking as the new probate statute. In other jurisdictions, findings of gross neglect toward a decedent have been insufficient to deprive the heir of his inheritance.32 Even though some legal scholars may find the Malbrough decision unprecedented and a bit disturbing in its implications, others may applaud the court's willingness to read the probate code's "slayer statute" expansively. With the addition now of the new probate statute, Illinois will likely serve as an inspiration to other states searching for hard-hitting ways to attack the nation-wide scandal of elder abuse and neglect. Inheritance rights are not absolute. By denying abusers the right to inherit from their victims, Illinois' lawmakers have effectively upheld the common law maxim that "no one can attain advantage by his own wrong."33
1 See www.state.il.us/aging (last visited December 18, 2003). Fifty percent of reported elder abuse in Illinois involves financial exploitation, twenty-five percent alleges physical abuse, forty-five percent alleges emotional abuse, and forty-five percent alleges active or passive neglect.
3 Id. According to the 2000 census, Dupage County has 88.794 residents over the age of sixty-five.
4 See The National Elder Abuse Incidence Study: Final Report (1998), available at www.aoa.gov/eldfam/Elder_Abuse/ABReport_Full.pdf (last visited December 18, 2003).
5 Illinois has legislated against financial exploitation and abuse and neglect of the elderly since 1990. See 720 ILL. COMP. STAT. 5/16-1/3 (2003) (financial exploitation) and 720 ILL. COMP. STAT. 5/12-21 (2003) (criminal abuse or neglect of an elderly or disabled person).
6 755 ILL. COMP. STAT. 5/2-6 (2003). See Estate of Malbrough, 329 Ill. App. 3d 77, 768 N.E.2d 120 (Ill. App. Ct. 1st Dist. 2002).
7 755 ILL. COMP. STAT. 5/2-6.2 (2004).
8 755 ILL. COMP. STAT. 5/2-6.2 (2004).
9 755 ILL. COMP. STAT. 5/2-6.2 (2004).
10 See CAL. PROB. CODE § 259 (West 2003) (providing that if a person is shown "by clear and convincing evidence" to be liable for physical abuse, neglect, or fiduciary abuse of an elderly or dependent adult, the person shall be prohibited from receiving any property that was awarded to the victim's estate from the abuser as a result of liability for the abuse). Although the California statute is an attempt to address the elder abuse problem, it falls far short of the position Illinois has taken.
11 See 720 ILL. COMP. STAT. 5/16-1.3 (2004) (defining financial exploitation of an elderly person or a person with a disability).
12 See 720 ILL. COMP. STAT. 5/12-21 (2003) (defining criminal abuse).
13 See 720 ILL. COMP. STAT. 5/12-19 (2004) (defining neglect in the statute titled "Abuse and Criminal Neglect of a Long Term Care Resident).
14 755 ILL. COMP. STAT. 5/2-6 (2003).
15 See ILL. REV. STAT. 1973, ch3 § 15a. See also ILL. REV. STAT. 1973, ch3 § 49a (holding that a devise or legacy by the victim to the murderer is void).
16 755 ILL. COMP. STAT. 5/2-6 (2003).
17 755 ILL. COMP. STAT. 5/2-6 (2003).
18 755 ILL. COMP. STAT. 5/2-6 (2003).
19 Prior to 2004, the only other probate section that penalizes an "unworthy heir" is 755 ILL. COMP. STAT. 5/2-6.5 (2003) ("Parent neglecting child").
20 755 ILL. COMP. STAT. 5/2-6.2 (2004).
21 755 ILL. COMP. STAT. 5/2-6 (2003). See Eskridge v. Farmers New World Life Ins. Co., 250 Ill. App. 3d 603, 609, 621 NE2d 164 (Ill. Ct. App. 1st Dist. 1993) (noting that "the proper burden of proof to be applied when a party seeks to prove in a civil action that a crime was committed is by a preponderance of the evidence.")
22 329 Ill. App. 3d 77, 768 N.E.2d 120 (Ill. App. Ct. 1st Dist. 2002).
23 Id. at 80.
24 Id. at 81.
25 Id. at 80.
27 329 Ill. App. 3d 77, 80 (Ill. App. Ct. 2002).
28 Id. at 78.
29 Id. at 83.
30 Id. at 82.
31 Id. at 81.
32 See, e.g., Cheatle v. Cheatle, 662 A.2d 1362 (App. D.C. 1995). The petitioner in Cheatle alleged that the decedent's sister had abused and neglected the decedent, hastening his death.
33 Estate of Mueller, 275 Ill. App. 3d 128, 134, 655 N.E.2d 1040 (Ill. App. Ct. 1st Dist. 1995), citing Estate of Safran, 306 N.W.2d 27, 29 (Wis. 1981).
Kadi Weck attends Northern Illinois University College of Law (J.D. expected May 2004). Assistant Editor - NIU Law Review. Associate Justice - Moot Court Society. 711 Intern with the Kane County State's Attorney.