The parties divorce. In their agreement, they are each to make and keep in full force and effect a valid will. It is to provide that each of them will give and bequeath at least 50% of their net estate to their six children in equal shares.
They also agreed to a remedy in case either failed to keep the agreement. The children of the parties, or any of them, shall have a provable, liquidated claim, lien, and charge against the estate of either parent for such amount as a child would have received had such deceased party made a will as agreed to.
The father died after he remarried and established a new trust. His six children from his prior marriage filed claims against his estate. They asserted that he had left them less than 50% of his net estate.
Father’s estate argued that the six children’s claims against the father’s estate should be dismissed. The estate argued that a money judgment becomes dormant after 7 years and was required to be revived within 20 years in order to be enforceable.
It was now 35 years since the agreement (MSA) had originally been made in the divorce decree. The estate argued that the six children had not revived the judgment within the 20-year time limit. They maintained that these claims were no longer enforceable.
The probate court agreed with the estate. The six children appealed. The appellate court reversed and sent the case back to the probate court.
The appellate court found that the father was not a judgment debtor to children under the MSA. The MSA was not subject to the revival provisions in section 12-108 or 2-1602. It remained in full force and effect at the time of father’s death. The provision in the MSA requiring a will was a mandatory injunction, not a money judgment.
In re Estate of Pigott, 2019 IL App (1st) 181716 (August 16, 2019) Cook Co., 5th Div.
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