Posts from: October 2016

Illinois Employee Sick Leave Act

The Illinois Employee Sick Leave Act was signed by Governor Rauner on August 19, 2016, and will take effect on January 1, 2017.  Though misleadingly titled “Employee Sick Leave Act,” the Act does not require employers to provide sick leave benefits to their employees. Rather, the law requires employers who provide sick leave benefits to their employees to allow their employees to take such leave for absences due to the illness, injury, or medical appointment of the employee’s child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent. The leave must be granted on the same terms under which the employee is able to use sick leave benefits for his or her own illness or injury.  The term “personal sick leave benefits” is defined in the Act to include time accrued and available for absences due to personal illness, injury, or medical appointments.

The Employee Sick Leave Act does not require employers to adopt or even to retain sick leave policies. While the new law allows Illinois employers to limit the amount of personal sick leave benefits available for the care of family members to “not less than the personal sick leave that would be accrued during 6 months” at the employee’s personal sick leave accrual rate, the law specifically provides that it does not expand the maximum period of leave to which an employee is entitled under the Family and Medical Leave Act, which generally applies to employers with at least 50 employees.

Illinois employers that have policies that otherwise provide for sick leave as required by the Act do not have to modify their policies to expressly provide sick leave for family care.  The Act also makes it unlawful for employers to discharge, threaten to discharge, demote, suspend, or discriminate against employees for using sick leave benefits, attempting to exercise their rights to use sick leave benefits, filing a complaint with the Illinois Department of Labor, alleging a violation of the Act, cooperating in an investigation or prosecution of the Act, or opposing any policy, practice or act that is prohibited by the Act.

If you would like to discuss this or any employment related matter, please contact:

Mitchell S. Chaban at:

mchaban@lgattorneys.com or 312-368-0100.

Time is of the Essence When Challenging the Validity of a Will

An interested party has six months from the date a will is admitted into probate to challenge the validity of the will.  This deadline is set by statute is strictly enforced. See 755 ILCS 5/81(a) (West 2010).  Regardless of whether the will is being challenged for undue influence, lack of capacity, fraud, forgery, or revocation, the will must be challenged within six months of admission.

The First District Appellate Court upheld the dismissal of a will contest where a party had leave of Court to file a will contest, but did so four days after the sixth month will contest deadline.  In re Estate of Mohr, 357 Ill. App. 3d 1011, 1015, 830 N.E.2d 810, 813 (1st Dist. 2005).  After the sixth month window has passed, the court no longer has jurisdiction to hear the will contest. Id. This approach provides a level of certainty to the probate process but harshly penalizes those who do not act quickly.

There are precious few exceptions to this rule and most of the exceptions involve mistakes in the form of the will contest.  E.g. Filing in wrong division was curable after the six month expiration, as was misnomer of one of the parties. In re Estate of Howell, 867 N.E.2d 559, 561, (5th Dist. 2007); In re Estate of Morgan, 2015 IL App (3d) 140176-U.

However, even after six months have passed, all is not necessarily lost.  Certain related tort claims can be filed after the six month expiration where the will contest remedy was not available.  A tort claim for intentional interference with inheritance is where:

“[o]ne who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.” Restatement (Second) of Torts § 774B (1979).

This claim might be actionable where the executor of the admitted will intentionally hid the admission of the will from one of the interested parties, so long as the admitted will deprived the aggrieved party of some part of his or her inheritance.

The Illinois Supreme Court has twice held that these claims may be pursued after the closure of the six month will contest deadline under certain circumstances.  In re Estate of Ellis, 236 Ill. 2d 45, 52, 923 N.E.2d 237, 241 (Ill. 2009); Bjork v. O’Meara, 2013 IL 114044, 986 N.E.2d 626 (Ill. 2013).  While the tort claim would not disturb the validity of the will, it would provide a right to sue the executor under the will for monies the interested party would have received, but for the admission of the improper will.  Under this tort action, key questions will include: was the will contest remedy available to the aggrieved party during the six month window; and would the will contest have fully compensated the aggrieved party if it had been timely filed.

Rather than shoehorning a will contest into a tort claim, an interested party who believes that a will is improper should act quickly to protect his or her rights.

If you have any questions regarding will contests or intentional interference with inheritance, please contact:

Robert Cooper at:

rcooper@lgattorneys.com or (312) 368 0100.

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