Illinois Appellate Court Denies Stay of Summary Judgment Proceedings for Children Challenging Testamentary Capacity of Father with Dementia and Brain Tumor

Appellate Court of the State of Illinois, Fourth District. (

Summary: On June 15, 2021, an Illinois appellate court affirmed the lower court’s refusal to halt summary judgment proceedings in a conflict over the estate of John Hirschfeld. The seven Hirschfeld Siblings had contested the validity of their father’s will based on allegations regarding their father’s testamentary capacity and the undue influence of executrix Mary E. Hirschfeld.

In 2005, John Hirschfeld (decedent) was diagnosed with a brain tumor and dementia. Leading up to his death on November 30, 2014, he became increasingly reliant on his second wife, Mary Hirschfeld, for his care. His latest will, executed in August 2006, left her approximately 51% of his assets and named her executrix of his estate.

The decedent’s seven children, collectively called the “Hirschfeld Siblings,” claimed that the decedent lacked testamentary capacity to know the nature and extent of his property due to the effects of decades of alcoholism and prescription medication abuse, a brain tumor, and dementia, and that his reliance on the executrix for his psychological, emotional, and physical care allowed her to exert undue influence to procure the latest will.

In support of their claim that their father was not of sound mind, the Hirschfeld Siblings noted his dementia and a brain tumor diagnoses and contended that at the time of the latest will’s execution, he was no longer licensed to practice law, no longer capable of providing legal advice, and unable to accurately assess legal advice provided by another. They also alleged that the August 2006 will was inconsistent with his actual property and contained initials which did not match his previous handwriting, but failed to produce evidence supporting these claims.

The executrix provided evidence that decedent remained in charge of his personal and financial affairs at the time of the final will and moved for summary judgment. In response, the Hirschfeld Siblings requested a stay of summary judgment proceedings to provide more time for discovery. In addition, two of the siblings submitted affidavits testifying that decedent’s behavior became “erratic” as he aged, allowing executrix to commit fraud. Both affidavits were stricken based on irrelevancy and the Dead-Man’s Act, which bars interested parties from testifying about conversations with a deceased person in court.

On appeal, the court found that despite the decedent’s dementia diagnosis, there was no admissible evidence that he lacked testamentary capacity. Accordingly, the court affirmed the lower court’s decision to deny the siblings’ motion to stay summary judgment proceedings.

Citation: In re Estate of Hirschfeld, 2021 IL App (4th) 190632-U.

Keywords: Illinois, dementia, elder justice, capacity, aging brain

This post is the 110th post as part of an ongoing Center for Law, Brain & Behavior (CLBB) series tracking the latest developments in law and neuroscience cases. To see previous posts about recent cases, see the full case archive on the CLBB website. To see updates on legal scholarship, see the Neurolaw News, hosted by the MacArthur Foundation Research Network on Law and Neuroscience. This project is made possible through support of the Dana Foundation.



Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store