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      In re ESTATE OF FRANK J. GLOGOVSEK, Deceased (Antonia M. Tynan, a/k/a Antonette M. Tynan, Petitioner-Appellee, v. Sharon Ann Weck, Indiv. and as Ex’r of the Instrument Purported to be the Last Will and Testament of Frank J. Glogovsek, Deceased, et al., Respondent-Appellants).
    Fifth District
    No. 5 — 91—0891
    Opinion filed August 5, 1993.

      P.K. Johnson, Jr., of Johnson & Johnson, of Belleville, for appellants.
    Kay A. Welch, of Lindauer, Vick & Welch, of Belleville, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

This case is on appeal from a ruling in a bench trial that the last will and testament of Frank J. Glogovsek, deceased, be set aside. The respondents raise the issue of whether the trial judge erred in applying a presumption of undue influence by testator’s spouse towards testator, causing testator to designate his stepchildren as contingent beneficiaries, if his wife predeceased him, as opposed to decedent’s sister and her children. We find that the trial judge erred, and we reverse.

Respondent Sharon A. Week defends individually as Frank’s stepdaughter and as the executrix of his will. Respondent Robert L. West is Frank’s stepson. Both respondents inherited under Frank’s will. Petitioner, Antonia Tynan, is Frank’s sister. Her three daughters, Betty Voss, Rose Marie Quirin, and Helen Nugent, acting under a durable power of attorney executed in their behalf by petitioner, have actually handled the prosecution and appeal of this case. Respondent Walter Glogovsek is Frank’s brother, and he settled before trial.

Frank executed his contested will on April 5, 1988. Margaret died just three months later in July 1988. Frank died on July 6, 1989, at the age of 88, one year after Margaret’s death. His will was admitted to probate on July 13, 1989. Petitioners contested the will, alleging that Frank did not have testamentary capacity to execute the will and that Sharon and Margaret had unduly influenced him in making the will.

The evidence presented was substantially as follows: Frank and Margaret were married in 1954. Frank did not have any children of his own, but Margaret, a widow, had two children by a former marriage, namely Sharon and Robert. Sharon was 13 at the time of the marriage and lived with Frank and Margaret until she was 20 years old. Robert was already in the service at the time of their marriage and never lived with them. Decedent did not adopt Sharon or Robert.

Donald Tedesco was the attorney who prepared decedent’s will. He testified that in early 1988, he met with Margaret twice for the purpose of getting information to prepare wills for both Margaret and Frank. On February 18, 1988, both Margaret and Frank met with attorney Tedesco to discuss their wills. Margaret had a will executed in 1982, but to Tedesco’s knowledge, Frank did not have a will prior to 1988, and there is no evidence in the record to suggest otherwise. At the meeting in February 1988, Margaret instructed Tedesco to leave her residuary assets to her children, Sharon and Robert. Frank appeared very uncertain about his testamentary wishes but instructed Tedesco to leave his residuary assets in a life estate to Margaret and the remainder after her life to his three nieces, Betty, Rose, and Helen. Tedesco prepared wills for each of them according to their instructions and mailed copies to them for review.

On March 24, 1988, Margaret came back to Tedesco’s office and asked him to make changes to both her will and Frank’s. She indicated that Frank wanted his will to be similar to hers: leave everything to her, but if she predeceased him, everything to her two children, Sharon and Robert. Tedesco made the changes but did not mail the changed versions to them. He met with them on April 5, 1988, for the purpose of executing both wills, at which time Margaret was in the hospital anticipating heart surgery. Tedesco went to the hospital, where Frank was visiting Margaret, so that they could execute their wills.

When Tedesco arrived at the hospital, both parties appeared to be alert and competent. Tedesco asked them to read their wills. He went out into the hallway to wait while they read and discussed the wills. Tedesco testified that on both occasions when he was with Frank and Margaret, he did not detect any discord between them, and he described their relationship as harmonious.

Margaret called Tedesco back into her room after approximately 15 minutes. Tedesco then asked his standard three questions to both Frank and Margaret individually. Frank responded affirmatively that he had read his will, that he understood it, and that it was correct in all respects. Tedesco also told them that he could make any changes that were necessary before signing the wills, and he could come back another time to execute the wills if necessary. Tedesco and his wife, his ersatz secretary that day, witnessed both Frank’s and Margaret’s wills at the same time. Frank signed by himself without aid from anyone, after Tedesco indicated where he was to sign.

At the time of making and executing the wills, Tedesco had practiced law for over 30 years; His practice was approximately 50% probate work, and he had prepared over 1,700 wills, with 85% prepared for husbands and wives. It was Tedesco’s usual and customary practice to allow and encourage spouses to read and discuss their wills together, outside of his presence, whether the wills were signed at his office or elsewhere, because he felt it is a family matter that should be discussed in private between the spouses. He found it very common for husbands and wives to have differences of opinion as to how their property was to be distributed. Tedesco did not have any difficulty talking to or communicating with Frank, but he described Frank as a quiet man, as opposed to Margaret, who was very talkative. To Tedesco, Frank appeared “regular in all respects.” Tedesco did not see what he would call any undue influence on the part of Margaret over Frank.

Sharon testified next. She had lived in the same town as her mother and Frank since her marriage in 1961. During the three to four years before the wills were executed, she had visited them two to three times per week, plus seeing them on holidays and other special occasions. In April of 1988, her mother entered the hospital and, due to complications, was not released before her death in July 1988. For a year or two before her death, Margaret had driven Frank to doctor’s appointments and anywhere else he needed to go, because he had failed his driver’s license test. Since at least 1986, Margaret had written all of the checks to pay for their household bills and everyday living expenses, out of their joint checking accounts. After Margaret’s death, Sharon took over this job, until a trust was established in 1989 wherein the Magna Bank became trustee for paying all of Frank’s bills. Until her hospitalization, Margaret had done all of the family shopping, laundry, cooking, and cleaning and laid out Frank’s clothes for him every day. She also prepared their yearly income taxes. Sharon admitted that Frank had trusted and had confidence in Margaret.

Frank’s three nieces testified next. They had lost their father when they were young girls and had always looked up to Frank as a father figure. They all lived in the same general area as Frank and had seen him on holidays and special occasions during the three to four years before his death. The power of attorney that had enabled them to prosecute the will contest for their mother, Frank’s sister, had been drafted after a family conference between the three nieces and their mother, at which time they decided that Mrs. Tynan, Frank’s sister, should have inherited from him. The nieces had each inherited, through joint tenancy, bonds with a face amount of $2,300, but at least one of the nieces stated that she had expected to be left more under Frank’s will because he had made statements to that effect during his lifetime.

All of the nieces testified that Frank had gradually changed in the three or four years before his death. The main changes they noted were that Frank was more easily confused and more forgetful as the years went by. He also lost his sense of humor to some degree, was quieter than normal, seemed less interested in the world around him, and became more dependent upon Margaret.

The contestants rested their case after introducing the evidence depositions of three physicians. We will not summarize these depositions, however, because the trial judge found that the contestants had not proved that Frank lacked testamentary capacity on the date he signed the will, a finding that the contestants do not challenge on appeal. Therefore, the depositions of the doctors, going only to the issue of testamentary capacity, are irrelevant for the purpose of this appeal.

Sharon testified again, on behalf of the estate. She described her relationship with Frank as a typical father-daughter relationship. She did not feel that Margaret dominated Frank, because if he did not want to do something that she wanted him to do, he just did not do it. Margaret and Frank’s relationship was good, although at times they argued. The remainder of Sharon’s testimony deals with her lack of involvement in the execution of Frank’s will and events after the will was executed. However, since the court did not find that Sharon had unduly influenced Frank, we will not reiterate those facts.

Robert West testified briefly, stating that he had maintained a close relationship with Frank over the years and considered Frank his father after his mother married him. (Robert’s and Sharon’s natural father died in an airplane accident in 1949.) Robert lived in Belleville between 1961 and 1979 and saw Frank and Margaret often. After he moved away in 1979, he continued to visit Frank and Margaret about once per month.

Everett Kassing testified that he was the trust officer at Magna Bank at the time Frank established an inter vivos revocable trust on August 23, 1988. Mr. Kassing worked with attorney Don Tedesco to set up the trust to pay Frank’s bills. Kassing had three meetings with Frank regarding the trust and met with Sharon as well. Overall, Kassing expressed the opinion that Frank generally knew what property he owned, who his relatives were, and who were the natural objects of his bounty, during the months of his meetings with Frank, which was after the will in question was executed.

The only other evidence presented was the discovery deposition of petitioner Antonia Tynan, who could not appear at the trial due to health problems. Her deposition testimony was that she had always maintained a close relationship with Frank, as had her daughters, and that she thought Frank would leave her something in his will. The reason for the will contest, in her opinion, was that she and her daughters had been close to Frank and felt that Frank should have “thought of” them in his will. She did not have any information that Margaret had ever dominated Frank.

The trial court entered an order stating: “[Claimants had failed to adduce sufficient evidence to establish testamentary incapacity by a preponderance of the evidence. The case is at best evenly balanced so that the usual presumption requires a determination of the question in favor of the testator’s capacity to make a will.” The court further found: “[Claimants have adduced sufficient evidence to establish testator’s trust in and dependence on his wife who as substantial beneficiary was instrumental in procuring the preparation and execution of the will in her own and her children’s favor. *** Thus, while it is clear *** no presumption of undue influence arises merely from the relationship of husband and wife [citation], [a] fiduciary relationship can be found to exist from the facts and circumstances of the case.” The court cited In re Estate of Henke (1990), 203 Ill. App. 3d 975, 561 N.E.2d 314. The court found that a fiduciary relationship arose between Frank and Margaret “by virtue of the factors inherent in this case and not as a matter of law from the fact of marriage.” The court stated: “The court is aware that influence obtained as a result of affection or kindness is not undue,” but the court went on to state that it was “nevertheless equally aware that such influence is insufficient to rebut the presumption of undue influence,” citing In re Estate of Mooney (1983), 117 Ill. App. 3d 993, 453 N.E.2d 1158. The court found no rational basis to distinguish the holding in Henke and found that, because the estate had not produced clear and convincing evidence to rebut the presumption of undue influence, the will could not stand.

The evidence relied upon by the court, as stated in the order, was that “Frank did not manage his own affairs [and] did not pay his own bills, his health was deteriorating and he was characterized as withdrawn and disinterested.” Other factors were that Frank had not received any independent legal advice and he did not ratify “his purported decision to disinherit his family” after the will was executed; that all communications with the attorney who drafted the will were made in the presence of Margaret; and that the attorney did not discuss, explain, or read the changed will to Frank at the time it was executed. The court found that it had “no clearly convincing evidence of either Frank’s purported change of heart or that the executed will was not in conformity with his prior indication to favor his nieces.”

The estate and the respondents argue on appeal that the trial court should not have applied the presumption of undue influence to Margaret over Frank because the presumption does not make sense when applied to a spousal relationship. The petitioner argues that the court was correct in applying the presumption. It appears from our review of the law and from the cases cited by the parties that the particular issue presented by this case is one of first impression in Illinois. (See Mache v. Mache (1991), 218 Ill. App. 3d 1069, 578 N.E.2d 1253 (where decedent’s children sought injunctive relief against decedent’s second and legally separated wife, requesting the court to prohibit the wife from using funds transferred to her shortly before decedent’s death); Meeker v. Meeker (1874), 75 Ill. 260 (where testator’s children from a prior marriage raise the issue of undue influence by testator’s third wife, but said case was prior to the development of a presumption of undue influence in will contests that appears to have first been pronounced by the supreme court in Weston v. Teufel (1904), 213 Ill. 291, 72 N.E. 908).) Specifically, both parties are asking us to decide if the four-tiered test for finding a presumption of undue influence in a will contest situation, as set forth in In re Estate of Henke (1990), 203 Ill. App. 3d 975, 561 N.E.2d 314, applies to spousal relationships. For reasons more fully detailed below, we do not believe that we have to decide this issue, because the facts in the case sub judice do not raise the presumption of undue influence.

We feel that it is proper to exercise judicial restraint and not decide the issue of whether the presumption applies to spouses when such a decision is not necessary in resolving the dispute in the case at bar. A sweeping refusal to allow the application of the presumption as to spouses of testators may cause an injustice under other facts and circumstances. Suffice it to say that the use of the presumption of undue influence must be applied with caution as to marital relationships, because of the unique relationship between spouses and the importance of marriages in our society. It may be that, after further consideration of the presumption in other factual situations, the courts in Illinois may exclude the use of the presumption as applying to spouses, but we decline to do so in this case or at this time.

Turning now to the facts in Henke, a daughter was accused of unduly influencing her mother to make a will in her favor, to the exclusion of the testator’s two grandchildren from a deceased son. The testator had a former will that would have provided the grandchildren with approximately $100,000. This court found:

“A presumption of undue influence arises when a will contestant shows:
‘ “(1) a fiduciary relationship between testator and a person who receives a substantial benefit under the will (compared to other persons who have an equal claim to testator’s bounty);
(2) a testator in a dependent situation in which the substantial beneficiaries are in dominant roles;
(3) a testator who reposed trust and confidence in such beneficiaries; and
(4) a will prepared or procured and executed in circumstances wherein such beneficiaries were instrumental or participated.” ’ ” (Henke, 203 Ill. App. 3d at 978, 561 N.E.2d at 316, quoting Nemeth v. Banhalmi (1984), 125 Ill. App. 3d 938, 960, 466 N.E .2d 977, 992, quoting Beyers v. Billingsley (1977), 54 Ill. App. 3d 427, 436-37, 369 N.E .2d 1320, 1327.)

Further research shows that the supreme court first raised the presumption of undue influence, with basically the same tests as set forth above, in will contests in Weston v. Teufel (1904), 213 Ill. 291, 72 N.E 908. Just one year prior to Weston, the supreme court in Michael v. Marshall (1903), 201 Ill. 70, 66 N.E. 273, had refused to apply the presumption of undue influence in will contests between family members, because “knowledge and experience teach that persons in confidential relations are very likely to be the beneficiaries of wills freely made, and of the most natural character.” (Michael, 201 Ill. at 76, 66 N.E. at 275.) This court found in Henke that the contestants had established the presumption of undue influence by the evidence and reasonable inferences, but this court then found that the estate had presented sufficient evidence with which to rebut the presumption as a matter of law and found that the court as trier of fact had sufficient evidence with which to find the that there was no undue influence as a matter of fact under the manifest weight of the evidence standard. In re Estate of Henke (1990), 203 Ill. App. 3d 975, 561 N.E.2d 314.

We must keep in mind that we are considering undue influence by a spouse. “Undue” influence means influence that is excessive, improper, or illegal. (See Black’s Law Dictionary 1697 (4th ed. 1968).) “Undue influence has been defined as any improper urgency of persuasion whereby the will of a person is overpowered and he is induced to do an act which he would not do if left to act freely.” (Mache v. Mache (1991), 218 Ill. App. 3d 1069, 1075, 578 N.E.2d 1253, 1257.) “The word ‘undue,’ when used to qualify influence, has the legal meaning of ‘wrongful.’ Hence ‘undue influence’ means a wrongful influence.” (Hurd v. Reed (1913), 260 Ill. 154, 161, 102 N.E. 1048, 1050.) The question becomes what quality and quantity of evidence should be required before a wife of 34 years is presumed to have acted wrongfully?

Every marriage varies as to the intimacy between the spouses. However, we can properly assume that, in the vast majority of marriages, spouses influence each other for better or worse from the day they first date to the day they die or the divorce order is entered. We assume that good marriages involve give and take and compromises between spouses. The law does not and should not presume a spouse to be guilty of undue influence simply by reason of the marital relationship alone (Miethe v. Miethe (1951), 410 Ill. 226, 101 N.E.2d 571) or because the spouse has been able throughout the marriage to have considerable influence on her spouse. If this were the case, the closer the spouse becomes to his or her mate, the more it could be said that the spouse is excessively, improperly, and illegally influencing the testator. On the other hand, the more estranged the spouses become the more reasonable, proper, and legal is the influence directed toward the testator. The law should make sense.

In looking at the tests that raise the presumption of undue influence, as set forth in Henke, the complainant must first establish that a fiduciary relationship existed between the testator and the substantial beneficiary. Black’s Law Dictionary defines a fiduciary as a person who manages money or property for another; one is said to act in a fiduciary capacity when one handles money or property which is not his or her own, or for his or her own benefit, but for the benefit of the other person. (Black’s Law Dictionary 320-21 (abridged 5th ed. 1983).) Further:

“[A] [fiduciary] relationship exists where there is a special confidence reposed in one, who by reason of such confidence, must act in good conscience and good faith and with due regard to the interests of the person reposing such confidence. It may exist as a matter of law between attorney-client, guardian-ward, trustee-beneficiary, and the like, or it may be the result of a more informal relationship — moral, social, domestic or even personal in its origin. [Citations.] Where the relationship does not exist as a matter of law, the proof must be clear, convincing, and so strong, unequivocal, and unmistakable as to lead to but one conclusion.” Swenson v. Wintercorn (1968), 92 Ill. App. 2d 88, 100, 234 N.E.2d 91, 97.

Petitioner had to prove, therefore, by clear and convincing evidence that a fiduciary relationship existed between Margaret and Frank. We first note that there was no evidence that Margaret managed money or property that belonged solely to Frank. There was evidence that Margaret paid the household bills and living expenses of both parties out of a joint checking account after Frank lost interest in doing so. Margaret also wrote the figures on the latest tax returns, but there was no evidence that she actually did all of the computations. (Frank was a retired bank auditor.) Most likely, in every marriage the chores are divided so that one spouse assumes the primary responsibility for seeing that checks are written and sent to pay the bills. If both spouses were to equally assume the responsibility, payment of bills could be overlooked, arguments might result as to whose turn it was to write the checks, and it becomes more difficult to know the bank balance. The same can be said for tax returns. It would be unusual for two people to split the job of filling out the returns. The mere fact that one party to the marriage does the routine management of the joint checking account from which the bills are paid, which may be small compared to the rest of the assets owned by the testator, as in the case at bar, and sees to the preparation of the tax returns does not and should not create a fiduciary relationship as to all of the property in testator’s estate. There needed to be clear and convincing evidence that Frank entrusted the management of most of his personal and financial affairs to Margaret before a fiduciary relationship could be said to arise as to Frank’s entire estate. (Swenson v. Wintercorn (1968), 92 Ill. App. 2d 88, 234 N.E.2d 91.) Since the record was devoid of evidence of any important or major decision Margaret made as to the management or disposal of any of Frank’s property, we cannot find that the trial judge was justified in finding a fiduciary relationship between Frank and Margaret.

There is a further problem in raising the presumption of undue influence as to spouses in probate law. When we consider property transactions between spouses, the law does not place interspousal transfers in the same category as in other cases. For instance, a conveyance between spouses is presumed to be a gift, and the presumption of undue influence is not applicable. (Miethe v. Miethe (1951), 410 Ill. 226, 101 N.E.2d 571; Mache v. Mache (1991), 218 Ill. App. 3d 1069, 578 N.E.2d 1253.) In fact, even if the grantee receives the entire estate of his or her spouse, the presumption of undue influence does not arise; rather, the presumption of a gift is indicated. (Miethe v. Miethe (1951), 410 Ill. 226, 101 N.E.2d 571.) It appears to be inconsistent to hold that Frank could make a permanent inter vivos conveyance of all of his property to Margaret at her insistence without raising the presumption of undue influence, but he could not make Margaret or her children contingent beneficiaries under his will without raising the presumption. It would seem that the opposite should be law when you take into account the finality of the acts. A testator can easily revoke the will prior to death, thereby defeating the undue influence, whereas a grantor cannot singlehandedly revoke a conveyance.

We also note that, in the first test for the presumption, there is included in parentheses the statement “compared to other persons who have an equal claim to testator’s bounty.” This phrase was first included in the test in Beyers v. Billingsley, 54 Ill. App. 3d at 436-37, 369 N.E.2d at 1327, but was not and has not been included in any supreme court cases. (See Redmond v. Steele (1955), 5 Ill. 2d 602, 126 N.E.2d 619; Tidholm v. Tidholm (1945), 391 Ill. 19, 62 N.E.2d 473.) In the case of a spouse, no one has a claim to a testator’s bounty that is equal or superior to that of the surviving spouse. Our legislature has given preference to spouses through our laws of testacy and intestacy that totally ignore any question of undue influence by a spouse on a decedent. If a person dies without a will and without descendants, the entire estate goes to the spouse. (Ill. Rev. Stat. 1991, ch. 110½, par. 2 — 1(c).) If a person has left insufficient or no provision for his or her spouse through a will, the surviving spouse can renounce the will and is then entitled to one-third of the estate if there are descendants or one-half if there are not. (Ill. Rev. Stat. 1991, ch. 110½, par. 2 — 8(a).) These laws provide protection to persons from spouses who do not succumb to their influence during their life-time and try to cut them out of their estate via a will, and they protect surviving spouses from other relatives and creditors if the spouse dies without a will. The protections advanced by the legislature are in recognition of the special relationship shared by spouses. It is the peculiarly intimate nature of the relationship that deserves these protections and that militates against a presumption of undue influence under the four factors of Henke.

Margaret had no equal, morally or legally, after 34 years of marriage, to her claim for testator’s bounty. It is ironic that if Frank had predeceased Margaret there would not have been any dispute. Even if the will had been set aside because of undue influence by Margaret, Margaret would have inherited Frank’s entire estate under the intestate laws. Frank’s sister, brother, and nieces did not have a claim equal to Margaret’s claim under the law as to Frank’s bounty, and in fact, they had no claim until Margaret predeceased Frank.

The trial judge found that Sharon did not exercise any undue influence over Frank, but the trial judge stated that Frank had not ratified “his purported decision to disinherit his family.” We can only infer from that statement by the trial court that the trial judge considered the nieces or their mother to have a claim to Frank’s bounty superior to Frank’s stepchildren. This finding that Frank’s sister and her children had a better claim to Frank’s bounty strictly because of blood relations was improper.

In Redmond v. Steele (1955), 5 Ill. 2d 602, 126 N.E.2d 619, the supreme court found that it was natural for the testator to leave his estate to his fiancee, who was his girl friend of 23 years, rather than to his brothers and sisters, who had been unkind to him. In Nemeth v. Banhalmi (1984), 125 Ill. App. 3d 938, 466 N.E.2d 977, the court found against testator’s natural daughter and in favor of testator’s stepdaughter in an action by the stepdaughter for malicious interference with an expectancy under a former will. A blood relationship between testator and the person excluded from the will can be considered, but a blood relationship in and of itself does not necessarily give the person a claim to testator’s bounty which is superior to that of a person who is not directly related to the testator.

“Family” is defined primarily as “all the people living in the same house” and as “a social unit consisting of parents and the children they rear.” (Webster’s New World Dictionary 489 (3d coll. ed. 1988).) Sharon was 13 years old when Frank became her stepfather, and Sharon lived with Frank until she reached her majority. For 34 years, Sharon was, in effect, Frank’s daughter. When Margaret died, Sharon was the one who came to Frank’s assistance. While Robert was not as close to Frank as Sharon, still he visited often and remained in close contact. Robert was the only son that Frank had. There is nothing in the evidence that indicates that the petitioner and her daughters, who visited on holidays and anniversaries, should be considered as having a better claim to Frank’s bounty than Sharon and Robert. In fact, the record supports the opposite conclusion. Frank’s “family” definitely included Sharon and Robert, and so Frank did not disinherit his family.

In our discussion of a fiduciary relationship, we have partially discussed the second test in Henke as to the testator being dependent on the substantial beneficiary, who is in a dominant role. The tests are interrelated, so that in order to establish a fiduciary relationship one needs to find a dependent situation. (Nemeth v. Banhalmi (1984), 125 Ill. App. 3d 938, 466 N.E.2d 977.) The mere fact that Margaret wrote the checks to pay the family bills after Frank lost interest did not make her dominant to Frank or place Frank in a dependent situation. There was no evidence in the record that Frank did not manage his own affairs, contrary to the trial court’s finding. In fact, one of the nieces admitted on cross-examination that Frank had bought bonds periodically over a number of years with a face value totaling $2,300, excluding accumulated interest, in joint tenancy with each niece. Margaret did nothing to stop this practice and did not take any action to influence Frank to defeat the survival provisions in the bonds in favor of the nieces.

The mere facts that the testator’s health was deteriorating, that he was characterized as withdrawn and disinterested, and that Margaret was talkative and outgoing, while being relevant, do not give rise to an automatic inference that she dominated the testator. The trial court specifically found that Frank had testamentary capacity. In fact, Frank apparently was in much better health than Margaret at the time the wills were executed, because the wills were executed at a time when Margaret was in the hospital for an illness from which she never recovered. The fact that Margaret had to drive, because Frank failed his driver’s test, may have given Margaret some control over Frank, but chauffeurs do not necessarily dominate the will of their passengers. Margaret did the shopping, laundry, cooking and cleaning (Frank did vacuum occasionally) and laid out Frank’s clothes for him every day. Surely, the fact that a wife or husband performs household chores and does personal things for the other spouse is not evidence of the spouse attempting to wrongfully gain influence over the other spouse. Further, all of these matters, if such are considered evidence of domination, raise the question, who dominated whom in this marriage? The trial judge viewed such evidence as a sign of weakness on the part of Frank, because Margaret assisted Frank in some of his physical and menial tasks. One could just as easily find from the evidence that Margaret was a devoted wife just giving tender, loving care to her husband of 34 years, while others might even view the evidence as showing Margaret was a slave to Frank. We note that on really important matters, such as Frank’s failure to adopt his stepchildren or what investments Frank made, there is no evidence that Margaret had any influence over Frank. The point is that there was no evidence showing a domination or control by Margaret over the mind of Frank. Even the petitioner, Frank’s sister, admitted in her deposition that she had no information that Margaret dominated Frank.

There was evidence that Frank trusted and had confidence in Margaret. This third test, however, is probably the least important, because a presumption of undue influence could arise, if such presumption applies to marriages, even if the testator did not have trust and confidence in the spouse. For instance, the spouse suffering from the “battered woman syndrome” or whose physical impairments cause reliance on the other spouse may not have trust or confidence in the spouse, but a presumption might arise if the facts supported a finding that the other three tests had been met. A general statement by a witness that the decedent had trust and confidence in his spouse without specifying facts that show such trust and confidence and as to what aspects the decedent had such trust and confidence in his spouse is almost meaningless. Suffice it to say that there was no evidence that Frank had an unusual or extraordinary amount of trust and confidence in Margaret, especially when difficult and important decisions had to be made, nor was there any testimony, other than Margaret wrote the checks to pay the bills and she filled in the tax returns, to support the general statement and conclusion that Frank had trust and confidence in Margaret.

Finally, in reviewing the evidence in relation to the last test as to whether the will was prepared or procured and executed in circumstances wherein the beneficiaries were instrumental or participated, it is interesting to note that attorney Tedesco testified that although he felt Frank was hesitant and unsure about to whom he desired to leave his property if Margaret predeceased him, Frank did in the first meeting indicate that he desired to leave his property to his nieces. Margaret certainly did not prepare, control, and influence Frank prior to this meeting. Nor did Margaret raise any objections in this meeting to Frank’s tentative contingent disposition of his property. There is no evidence as to what Frank and Margaret discussed afterwards. The only evidence is that Margaret at a later time told the attorney outside of Frank’s presence that Frank wanted his stepchildren to be the beneficiaries if she predeceased Frank. It is only conjecture that Margaret said or did anything to Frank to improperly influence Frank to change his mind as to who should be his contingent beneficiaries.

The mere fact that Margaret drove Frank to the law office for purposes of discussing a will does not raise a presumption of undue influence. (Henke, 203 Ill. App. 3d at 982, 561 N.E.2d at 319.) The facts that the attorney never discussed Frank’s will outside of the presence of Margaret, that Frank changed his mind as to whom he desired to leave his property, and that Margaret conveyed to the attorney the message of Frank’s change of mind as to the contingent beneficiaries are all important, when considered together, and are sufficient to meet the fourth test of Henke as to participation in procuring the will. The weakness in the conclusion to be drawn from these facts, however, stems from the lack of evidence needed to meet the prior tests. The total lack of evidence to show that Margaret dominated Frank causes Margaret’s role in procuring the will to be less ominous.

From a procedural aspect, we are not sure if the trial court, at the close of petitioner’s case, determined that the evidence was sufficient to raise the presumption of undue influence or whether the trial court considered all of the evidence in making such a determination. If the trial court considered all of the evidence, then the final difficulty in establishing the presumption of undue influence was the length of time and opportunity that Frank had to change his will after Margaret died. Sharon correctly anticipated that if she managed Frank’s affairs the nieces would soon begin to question her motives. Sharon, therefore, contacted Frank’s banker, and the banker and Tedesco set up the trust to pay Frank’s bills. Frank participated in the discussions, agreed to a course of action, and established an inter vivos revocable trust. If Frank had not been satisfied with his will, he had an excellent opportunity for one year to amend such without Margaret’s influence. (See Hurd v. Reed (1913), 260 Ill. 154, 102 N.E. 1048 (where the party accused of exercising undue influence returned to his home in Washington, leaving testator several months to change his will before his death).) While Frank may not have done anything formally to ratify the will, he certainly did so passively and informally.

Petitioner failed, even if we construe the evidence most favorably for petitioner, to present clear and convincing evidence to raise a presumption of undue influence by Margaret over Frank. Accordingly, we need not discuss whether petitioner proved undue influence without benefit of the presumption. Obviously, under the facts in this case, if petitioner failed to raise the presumption of undue influence, there was no Thayer bubble for respondents to burst. Thus, petitioner failed to make a prima facie case of undue influence.

In light of the foregoing, the judgment of the circuit court is reversed, and we remand said cause to the trial court with directions to admit the will of Frank Glogovsek to probate.

Reversed and remanded with directions.

GOLDENHERSH and MAAG, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY STATON, Defendant-Appellant.
    Second District
    No. 2 — 91—1107
    Opinion filed August 17, 1993.
    John H. Vogt, of Beckmire, Garrity & Vogt, of Freeport, for appellant.
    Michael P. Bald, State’s Attorney, of Freeport (William L. Browers, Robert J. Biderman, and Charles F. Mansfield, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

The circuit court found defendant, Terry Staton, guilty of driving under the influence of alcohol (Ill. Rev. Stat. 1991, ch. 95½, par. 11— 501 (now 625 ILCS 5/11 — 501 (West 1992))), driving while his driver’s license was revoked (Ill. Rev. Stat. 1991, ch. 95½, par. 6 — 303 (now 625 ILCS 5/6 — 303 (West 1992))), disobeying a stop sign (Ill. Rev. Stat. 1991, ch. 95½, par. 11-1204(b) (now 625 ILCS 5/11-1204(b) (West 1992))), illegal operation of a snowmobile (Ill. Rev. Stat. 1991, ch. 95½, par. 605-2(A) (now 625 ILCS 40/5-2(A) (West 1992))), and operating a snowmobile without a valid driver’s license (Ill. Rev. Stat. 1991, ch. 95½, par. 605-3(D)(l) (now 625 ILCS 40/5-3(D)(l) (West 1992))). Defendant appeals, contending that the court erred in holding that the general provisions of the Illinois Vehicle Code (Vehicle Code or Code) (Ill. Rev. Stat. 1991, ch. 95½, par. 1 — 101 et seq. (now 625 ILCS 5/1 — 101 et seq. (West 1992))) apply to snowmobiles.

Early in the morning of December 9, 1990, Jimmy Hartney, a part-time Lena police officer, saw defendant, whom he recognized, walk across a municipal parking lot. Hartney was parked in the lot, and defendant passed within 15 feet of him. A few minutes later, Hartney saw a snowmobile, which did not appear to have its lights on, travel through an alley.

Hartney drove a few blocks to determine where the snowmobile went. At the intersection of Mason and Rantoul Streets, he saw the snowmobile westbound on Mason and turning west onto Oak Street. The officer followed the snowmobile for some distance down the street. Hartney activated the lights on his squad car and attempted to stop the snowmobile to inform the driver that the route he was taking “was not the most direct route out of town” and “was not the snowmobile route.”

The snowmobile did not stop immediately, but stopped a block later when the officer pulled his car in front of it. After the snowmobile driver removed his helmet, Hartney recognized him as defendant. Hartney ran a test of defendant’s driver’s license and discovered that it was revoked. Upon making some observations and conducting some tests, Hartney determined that defendant was intoxicated. Defendant was charged with the offenses listed above. ,

Defendant waived a jury trial. After a bench trial, the court found him guilty of all charges. In closing argument and in his post-trial motion, defendant argued that he could not be convicted of driving under the influence of alcohol, driving with a revoked license or disobeying a stop sign because those offenses require that defendant be driving a “vehicle” or “motor vehicle” and that a snowmobile is not a vehicle or motor vehicle as defined by the Code. The court rejected this argument, found defendant guilty of all charges, and denied his post-trial motion. Defendant filed a timely notice of appeal.

On appeal, defendant again presses his argument that a snowmobile is not a “vehicle” or “motor vehicle” as defined by the Code. Defendant does not challenge his convictions of the two snowmobile offenses. He contends, however, that he could not be convicted of the three Code offenses.

The Code contains the following definitions:

“Vehicle. Every device, in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power, devices used exclusively upon stationary rails or tracks and snowmobiles as defined in the Snowmobile Registration and Safety Act.” Ill. Rev. Stat. 1991, ch. 95½, par. 1 — 217 (now 625 ILCS 5/1 — 217 (West 1992)).
“Motor vehicle. Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, except for vehicles moved solely by human power and motorized wheelchairs.” Ill. Rev. Stat. 1991, ch. 95½, par. 1 — 146 (now 625 ILCS 5/1-146 (West 1992)).

Defendant points out that each of the three general statutes under which he was convicted requires as an essential element that the defendant be operating a vehicle or motor vehicle. For example, section 6 — 303 provides, “Any person who drives or is in actual physical control of a motor vehicle on any highway of this State at a time when such person’s driver’s license, permit or privilege to do so *** is revoked or suspended as provided by this Code *** shall be guilty of a Class A misdemeanor.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 95½, par. 6-303(a) (now 625 ILCS 5/6-303(a) (West 1992)).

Defendant points out that the legislature has enacted a separate statute, the Snowmobile Registration and Safety Act (the Act) (Ill. Rev. Stat. 1991, ch. 95½, par. 601 — 1 et seq. (now 625 ILCS 40/1 — 1 et seq. (West 1992))), specifically regulating the registration and operation of snowmobiles. He posits that the creation of the Act and the exclusion of snowmobiles from the definition of vehicle under the Code expressed the legislature’s intention to create a separate statutory scheme to regulate snowmobiles. Thus, he contends that he cannot be convicted of any offense under the Code while operating a snowmobile.

The State responds that statutes having similar purposes must be construed in pari materia. According to the State, the legislature could not have intended to exempt completely snowmobiles from the “rules of the road” provisions of the Code and subject them only to the less stringent regulations of the Act. Therefore, the State concludes that certain provisions of the Code must be read as applying to snowmobiles where the context clearly requires it. The State relies on section 1 — 101 of the Code, which defines various words and phrases used therein and provides that those words and phrases for purposes of the Code shall have the meanings respectfully ascribed to them, except when the context otherwise requires and except where another definition set forth in another chapter of the Code and applicable to that chapter or a designated part thereof is applicable. Ill. Rev. Stat. 1991, ch. 95½, par. 1 — 101.

' Although it is indeed simplistic, there is merit in defendant’s position that the plain language of the definition section demonstrates the legislature’s intention to exclude snowmobiles from the Vehicle Code’s general provisions. “The statutory language used by the legislature is usually the best indication of the intent of the drafters. [Citations.] Such language is to be given its plain or ordinary and popularly understood meaning.” (Collins v. Board of Trustees of the Firemen’s Annuity & Benefit Fund (1993), 155 Ill. 2d 103, 111.) The plain and ordinary meaning of “[e]very device *** except *** snowmobiles” as a definition of a vehicle is that a snowmobile is not a vehicle. (Ill. Rev. Stat. 1991, ch. 95½, par. 1-217 (now 625 ILCS 5/1-217 (West 1992)).) To say that the disclaimer in section 1 — 101, that the definitions apply except where the context indicates otherwise, applies to this situation is for the exception to swallow the rule. The State is able to identify only two sections of the Vehicle Code to which the definition might apply: the registration provisions, which are clearly superseded by the Act, and portions of the equipment provisions which are inappropriate for a snowmobile, such as the requirement of rubber tires. It appears that the “general” definition would apply in fewer instances than the exception.

Moreover, such an interpretation would create uncertainty concerning what conduct is prohibited. Due process requires that the proscription of a criminal statute be clearly defined and provide sufficiently definite warning concerning the proscribed conduct when measured by common understanding and practices. (People v. Williams (1990), 133 Ill. 2d 449, 451-52.) This is necessary so that “the person of ordinary intelligence [has] a reasonable opportunity to know what is prohibited” and can act accordingly. (Williams, 133 Ill. 2d at 452.) It is not clear that a person of ordinary intelligence will be able to determine when “context” dictates that a snowmobile be considered a vehicle embraced by the Code and when it does not.

The State warns of dire consequences if snowmobiles are allowed to run rampant on the highways of the State without regulation. The State even suggests that the Vehicle Code may work an unconstitutional denial of equal protection by treating snowmobilers differently from operators of other types of vehicles. The State suggests there is no rational basis for this distinction. However, the State also appears to contradict itself, suggesting there is a legitimate difference between snowmobiles and other vehicles.

Snowmobiles are not intended to be operated on highways. It is illegal to drive one on a highway except in very limited circumstances. (Ill. Rev. Stat. 1991, ch. 95½, par. 605 — 2 (now 625 ILCS 40/5 — 2 (West 1992)).) Under ordinary road conditions, it would be impractical, if not impossible, to run a snowmobile on a highway for any length of time. Most of the time, the asserted threat of unregulated snowmobiles running rampant on the highways is minimal. Moreover, snowmobiles are smaller and lighter than passenger cars. Even if one were operated on a highway, the extent of its threat to other vehicles is questionable. For these reasons, the legislature could have rationally concluded that the irresponsible operation of snowmobiles did not pose as severe a threat as the similar operation of cars, trucks and other devices. Thus, the dual-regulation scheme — one statute governing vehicles generally and one governing snowmobiles — can be said to have a rational basis. See generally People v. Blackorby (1992), 146 Ill. 2d 307, 318.

It should be noted that the Snowmobile Registration and Safety Act does place significant restrictions on the operation of snowmobiles. (See Ill. Rev. Stat. 1991, ch. 95½, par. 605 — 1 (now 625 ILCS 40/5 — 1 (West 1992)).) The legislature could have rationally believed that subjecting snowmobiles to all the regulations of the “rules of the road” was unnecessary given the extremely limited circumstances under which they are permitted on highways at all and the general prohibition of reckless driving contained in section 5 — 1.

We believe there is merit to the State’s argument that the drunken operation of a snowmobile on a highway should subject the violator to the same penalties, including license suspension, as the drunken operation of a car or motorcycle. There is further merit to the suggestion that one who chooses to run his snowmobile on the road should be subject to the rules of the road, including appropriate penalties. However, we believe these arguments are properly addressed to the legislature. That body has, we believe, clearly demonstrated its intention that there should be two statutory schemes, one for cars (and other “vehicles”) and one for snowmobiles. The legislature has demonstrated that it knows how to make the general requirements of the Vehicle Code applicable to snowmobiles when it wants to. See Ill. Rev. Stat. 1991, ch. 95½, par. 605 — 3(D) (now 625 ILCS 40/5 — 3(D) (West 1992)) (“Any person who operates a snowmobile on a highway as provided in Section 5 — 2 shall (1) possess a valid motor vehicle driver’s license”).

Generally, the legislature possesses broad powers to create offenses and prescribe penalties therefor. (People v. Wade (1989), 131 Ill. 2d 370, 379.) The legislature could properly determine that snowmobiling is a less dangerous activity than driving a car and could accordingly prescribe less severe penalties for violations involving the former.

We believe that until the legislature more clearly expresses its intention to apply the Vehicle Code to snowmobiles, the language of the definition of “vehicle” should be given its plain and ordinary meaning.

Defendant’s convictions and sentences for the offenses of driving under the influence of intoxicating liquor, stop sign violation, and driving while license revoked are reversed and vacated. Defendant’s conviction and sentences for illegal operation of a snowmobile and operation of a snowmobile without a license are affirmed.

Affirmed in part; reversed in part.

QUETSCH and COLWELL, JJ., concur.


author: JUSTICE QUETSCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DESI CHISM, Defendant-Appellant.
    Second District
    No. 2 — 91—1345
    Opinion filed August 9, 1993.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Kathleen T. Zellner and Douglas H. Johnson, both of Kathleen T. Zellner & Associates, of Naperville, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Susan Davis Brunner, of Evanston (William L. Browers, Lisa A. Hoffman, and John X. Breslin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE QUETSCH

delivered the opinion of the court:

Following a bench trial in the circuit court of Du Page County, defendant, Desi Chism was convicted of unlawful delivery of more than 15 but less than 100 grams of a substance containing cocaine (720 ILCS 570/401(a)(2)(A) (West 1992)) and was sentenced to a term of six years’ imprisonment and fined $9,600. On appeal, defendant contends that his conviction must be reversed because the State failed to prove beyond a reasonable doubt that he was not entrapped.

The evidence adduced at trial was as follows. The State’s principal witness was Larry Wiess, a police officer with the Du Page County sheriff’s police assigned to the Du Page Metropolitan Enforcement Group (DuMEG). During his assignment to DuMEG, Wiess duties consisted exclusively of investigating narcotics trafficking. Wiess testified that during the first week of January 1991, he received a call on his electronic pager. Wiess telephoned the number that appeared on the pager, and the telephone call was answered by an individual who identified himself as “Deacon.” Wiess later learned that Deacon was defendant. Defendant stated that he was a friend of Marty and Corky and had obtained Wiess’ telephone number from them. Marty was Martin Gomez, an individual who had previously agreed to act as an informant to Wiess. Corky was a mutual .friend of defendant and Gomez. During this conversation, defendant asked Wiess to purchase cocaine from him, and during the next two weeks, Wiess and defendant had several conversations aimed at setting up a sale of a quarter kilogram of cocaine. Defendant wanted $10,000 for the cocaine and wanted the sale to take place at a location on the south side of Chicago. Wiess was unwilling to complete the transaction on the south side of Chicago, and the negotiations in January 1991 broke off.

Wiess had no further contact with defendant until late April 1991. During the week of April 22, Wiess received approximately five telephone calls from defendant. At first, defendant did not leave a telephone number where he could be reached, and Wiess did not return any of the calls until April 30, when Wiess called defendant at his home. Defendant asked Wiess why he did not return defendant’s calls, and Wiess responded that he was able to obtain cocaine from another source without travelling to Chicago. Defendant indicated that he had a new source who could provide nine ounces a week and that Wiess would not have to drive to Chicago to purchase the narcotics. Wiess asked defendant to find out the price and to call him back. About half an hour later, defendant left a voice mail message for Wiess, indicating that he had paged his cocaine supplier and would provide Wiess with prices on the following day.

At about 10 a.m. on April 30, Wiess called defendant but defendant had not yet obtained a price for the cocaine. Later that day, at about 5:30 p.m., defendant paged Wiess and told him he could provide four ounces of cocaine that evening at a price of $1,300 an ounce. Wiess responded that he would be working late, and defendant asked Wiess to call him when he got off of work. Wiess did not call again that evening, and the next day, May 1, at 12:25 p.m. defendant contacted Wiess, asking why Wiess had not called him the prior evening. Wiess responded that he got home from work late. Defendant asked if Wiess still wanted to go through with the transaction and Wiess said he did. Defendant indicated that he had previously been mistaken about the price for the cocaine, which was $1,350 per ounce rather than $1,300. Defendant further stated that he was not making any money on the transaction, and he wanted Wiess to provide him with an ounce of cannabis, fill up his car with gasoline and let him take some of the big rocks out of the cocaine bag. Wiess agreed to these requests.

About an hour later defendant again contacted Wiess and they agreed to meet at a Denny’s restaurant in Willowbrook to complete the sale. Defendant was waiting for a friend to arrive and stated that he would page Wiess when the friend arrived. Wiess did not hear from defendant again until about 1:15 a.m. the next morning, May 2, when defendant again paged Wiess. Defendant stated that his friend failed to show up. Defendant further stated that he was going to call his nephew, who was his source, and would then contact Wiess again. That afternoon defendant contacted Wiess and indicated that his source had sold the four ounces being held for Wiess, but would be getting another four ounces at 6 or 7 p.m. Defendant indicated that he would page Wiess at that time. Apparently, however, there were no further conversations between Wiess and defendant on May 2. On May 3, at 9 p.m., Wiess telephoned defendant after defendant had paged him twice. Defendant stated that his source had the four ounces, but Wiess replied that he had obtained two ounces and was in no hurry to purchase four ounces from defendant. Defendant responded that if Wiess did not make the purchase, defendant’s source would not do business with Wiess anymore. Wiess agreed to make the purchase the following day.

On May 4, three telephone conversations between defendant and Wiess took place in preparation for the sale at the Denny’s in Willowbrook. In their last conversation that day, defendant indicated that his car had broken down near the expressway and that he would call back when it was running. Wiess did not hear from defendant again until May 6. Defendant indicated that his source wanted to complete the transaction on the previous day, but defendant did not want to bother Wiess because it was a Sunday. Defendant still wanted to sell Wiess the four ounces of cocaine and they agreed that defendant would page Wiess and leave the number “666” on Wiess’ electronic pager as a signal that defendant was on his way to the Denny’s. After receiving the “666” code on his pager at about 4:20 p.m., Wiess proceeded to the Denny’s and waited in his parked car for defendant, who had indicated that he would be travelling in a brown car. Subsequently a brown car arrived in which defendant was riding in the backseat, and two males were riding in the front seat. The car at first pulled into a space near where Wiess was parked, but then backed out of the space and drove around to the other side of the building, out of Wiess’ sight. Defendant then approached Wiess’ car and identified himself as “Deacon.” Defendant climbed into the passenger side of Wiess’ car and gave Wiess a clear plastic bag inside of which were four smaller bags containing a white powdery substance later identified as cocaine. Wiess complained that defendant had told him the cocaine would be “rock right off the brick,” but that it appeared powdery. Defendant told Wiess to open the bag and check out the rocks inside. Wiess had defendant open one of the bags, and Wiess pulled out the money to buy the cocaine. Defendant stated that now that they had done business, he would be able to provide four ounces every week. At that point Wiess signalled to other police officers present at the scene who arrested defendant. As he was being arrested, defendant ripped open the bag he was holding and spilled the powdery contents onto the parking lot.

Wiess testified that he had known Martin Gomez for several months prior to January 1991, and had been involved in arresting Gomez in 1990 for the alleged delivery of a controlled substance. Subsequently, Wiess enlisted Gomez to act as an informant and introduce Wiess to narcotics sellers. Wiess was aware that Gomez had enlisted an individual named Corky to help him. Wiess had never met Corky, but had spoken with him by telephone.

Robert Guerrieri, Michael Cooke and William Simmons, all law enforcement officials assigned to DuMEG, observed the transaction in the Denny’s parking lot from a mini van and arrested defendant after being signalled by Wiess. When the brown car in which defendant was riding pulled into the lot, Guerrieri observed the passenger in the front reach down toward the floorboard area and hand something to defendant, who was seated in the back. Simmons similarly testified that he observed the passenger in front, who he identified as James Lofton, reach over into the backseat.

Following his arrest, defendant was questioned by Agents Cooke and Simmons at the Willowbrook police department. When asked where he obtained the cocaine he delivered to Wiess, defendant stated that he asked his cousin, Jeff Higgins, if he could obtain the cocaine. Higgins said he could get four ounces for defendant and he put defendant in touch with John Lofton, who likewise said he could provide defendant with the cocaine. Defendant, Higgins and Lofton drove out to the Denny’s, and when they arrived, Lofton reached over the backseat and handed defendant the cocaine which he delivered to Wiess.

Defendant testified that on an occasion in January 1991, Lawrence Cortez, who was known as “Corky,” was at defendant’s house and had asked if he could make a few telephone calls. Corky dialed a number and handed the telephone to defendant indicating that Wiess was on the line. Defendant testified as follows regarding the ensuing conversation with Wiess:

“He introduced himself as Larry, Marty’s brother-in-law, and he told me that he had learned through Corky and Marty that I knew some people that might be able to help him out. And I said help him out? And he say [sic], you know, and he was talking about getting something for us. And I said what do you mean? He said have Corky and Marty talked to you about it? I told him I only met Marty one time, he asked me to do something about for him [sic], but I told him I really didn’t have too much interest.”

Defendant testified that Wiess asked defendant to provide him with narcotics. Defendant was not selling or in possession of narcotics at that time.

During the period between this conversation and May 6, 1991, defendant spoke with Wiess over 40 times. In the week following the first conversation, Wiess called defendant, leaving messages on defendant’s answering machine which defendant didn’t return. Defendant testified that he next spoke to Wiess in April. Wiess had apparently left a message for defendant and defendant returned the call. Defendant testified that Marty and Corky kept pestering him. They called at all times of the night and left messages when he was not home. When defendant tried to reach Wiess but was unsuccessful, the pressure continued. According to defendant, “Corky would come by, and Marty would call and leave messages, and about a week later I did call [Wiess].” During the conversation in April, Wiess indicated that he wanted a quarter “key,” but defendant told him that he did not really use or sell drugs. Wiess responded that he knew defendant was out of work and that they could possibly come to some kind of agreement. Wiess stated that he understood that defendant did not like cocaine and offered him some cannabis. Defendant agreed to “look into it.” Defendant testified that Corky had provided him with the cocaine that he delivered to Wiess on May 6, 1991.

In his testimony during redirect examination, defendant indicated that during the period in question Marty and Corky made promises to defendant suggesting, in essence, that doing business with Wiess would offer defendant a solution to financial difficulties he was experiencing. Defendant stated that “[Marty and Corky] badgered me for months, and then when I needed the money and I still wouldn’t get any drugs for them, they come and ask me, okay, well, you say you won’t get him any drugs, how about dropping this off, and I needed the money, so I did.”

Martin Gomez testified on behalf of the State as a rebuttal witness. Gomez admitted to a history of involvement with narcotics, including a prior conviction and pending charges in the circuit courts of Cook and Du Page Counties for unlawful delivery of a controlled substance. Following his arrest in connection with the charges in Du Page County, Gomez entered into an agreement with Agent Wiess, pursuant to which Gomez would supply Wiess’ telephone numbers to persons who could deliver four or more ounces of cocaine. In exchange for his cooperation, it was agreed that Gomez’s assistance to the police would be considered in connection with his pending charges in Du Page County. Gomez subsequently entered into a plea agreement with respect to those charges. The plea agreement did not require his testimony against defendant. Gomez testified that he approached Corky and asked him for help in supplying drug contacts for Agent Wiess. Gomez informed Corky that Wiess was an undercover police officer seeking to apprehend drug dealers. Gomez believed things would go badly for him if he did not supply Wiess with a drug dealer. Gomez admitted that he was using narcotics at the time of Wiess’ initial contact with defendant in January 1991.

Gomez testified that he had only met defendant once, in mid-January 1991. During that meeting, defendant told Gomez that he heard Gomez was “looking for something.” Gomez said he was trying to obtain “four O’s, maybe a quarter.” Defendant responded that it would be no problem. Gomez requested that the transaction take place in Aurora, and defendant stated that he knew the area. Gomez then gave defendant several of Agent Wiess’ telephone numbers, telling defendant that either Gomez or his brother-in-law Larry would answer. After the conversation in January, Gomez did not again speak to defendant personally, but on one occasion near the beginning of April, Gomez left a message on defendant’s answering machine indicating that Gomez was still interested in doing the deal if defendant wanted to work.

Defendant contends that the evidence adduced at trial establishes the defense of entrapment, and his conviction must therefore be reversed. Section 7 — 12 of the Criminal Code of 1961 (720 ILCS 5/7 — 12 (West 1992)) provides:

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.”

The defense of entrapment is an affirmative defense, and once a defendant presents some evidence to raise the issue of entrapment, the burden is on the State to prove beyond a reasonable doubt that the defendant was not entrapped. People v. Tipton (1980), 78 Ill. 2d 477, 487; People v. Colano (1992), 231 Ill. App. 3d 345, 348; People v. Lambrecht (1992), 231 Ill. App. 3d 426, 433.

Entrapment is established when governmental officials originate a criminal design, implant in the mind of an innocent person the disposition to commit the offense, and induce the commission of the offense in order to obtain evidence for use in prosecuting that person. (People v. Martin (1991), 219 Ill. App. 3d 1064, 1075.) To support a finding of entrapment, the evidence must reveal (1) the State improperly induced the defendant to commit the crime, and (2) a lack of predisposition to commit the crime on the defendant’s part. (People v. Draheim (1993), 242 Ill. App. 3d 80, 88; Lambrecht, 231 Ill. App. 3d at 434.) A defendant’s predisposition to commit an offense is a critical element in overcoming an entrapment defense, and in order to sustain its burden of proving that defendant was not entrapped, the State must show that the defendant was ready and willing to commit the crime without persuasion and therefore was predisposed to commit it. Draheim, 242 Ill. App. 3d at 88, Lambrecht, 231 Ill. App. 3d at 434-35; see also Colano, 231 Ill. App. 3d at 349.

In this court’s recent decision in People v. Draheim (1993), 242 Ill. App. 3d 80, we discussed the principles applicable to the issue of predisposition in a narcotics prosecution:

“There are several factors that courts consider when determining a defendant’s predisposition to commit a crime: the defendant’s initial reluctance or readiness to commit the offense, and, in the context of drug offenses, the defendant’s familiarity with drugs, his willingness to accommodate the needs of drug users, the defendant’s willingness to make a profit from the illegal act, the defendant’s own prior or current use of illicit drugs, whether he has a ready source to supply illicit drugs, and his participation in cutting or testing the drugs. [Citations.] It is also significant whether defendant was involved in a course of conduct which involved similar offenses. [Citations.] While a factor to be considered is whether defendant has a prior criminal record, that alone is not enough to show entrapment.” Draheim, 242 Ill. App. 3d at 88-89.

See also Colano, 231 Ill. App. 3d at 349-50.

Before turning to the evidence in this case we must address an issue related to the standard of review applicable to the defense of entrapment. Citing People v. Connor (1988), 176 Ill. App. 3d 900, defendant contends that a reviewing court is to consider all of the defendant’s testimony regarding an entrapment defense in a light most favorable to him. We recently rejected this standard of review in People v. Colano (1992), 231 111. App. 3d 345, and People v. Lambrecht (1992), 231 Ill. App. 3d 426. The proposition in Connor which defendant relies upon apparently originated in People v. Husted (1981), 97 Ill. App. 3d 160, which in turn purported to rely upon People v. Carpentier (1974), 20 Ill. App. 3d 1024. However, as we observed in Colano and Lambrecht, Carpentier dealt with the limited issue of whether the defendant was entitled to a jury instruction on the defense of entrapment and held that in this context the evidence was to be viewed in a light most favorable to the defendant. We declined to apply this standard to appellate review of whether the State has sustained its burden of proof on the issue of entrapment. (Colano, 231 Ill. App. 3d at 349; Lambrecht, 231 Ill. App. 3d at 434.) Instead, “the relevant inquiry is whether, upon viewing the evidence in the light most-favorable to the prosecution, any rational trier of fact could have found the elements essential to the criminal conviction beyond a reasonable doubt.” Lambrecht, 231 Ill. App. 3d at 434.

The evidence presented at trial, when viewed in a light most favorable to the prosecution, supports the trial court’s determination that defendant was not entrapped. The trial court expressly found that there was no improper inducement by the law enforcement officials and that they merely afforded defendant the opportunity to commit the crime. We note that the facts in this case were heavily disputed. Although defendant contends that he was reluctant to engage in the transaction, and did so only after constant badgering, evidence presented by the State provides a much different account. Martin Gomez testified that when he first met defendant, after having been introduced by their mutual friend, Corky, defendant inquired whether Gomez was “looking for something,” and indicated that it would be no problem to provide Gomez with “four o’s and a quarter,” at which point Gomez gave defendant Wiess’ telephone numbers. Moreover, defendant’s testimony regarding his first conversation with Agent Wiess was wholly at odds with Wiess’ account. While defendant testified that Corky placed the call to Wiess and then handed the telephone to defendant, Wiess testified that he placed the call to defendant after having been electronically paged. Wiess’ testimony that during their first telephone conversation defendant requested that Wiess purchase drugs from him evidences that defendant conceived of the offense for which he was ultimately prosecuted.

The trial court apparently discredited defendant’s account that Wiess initiated the discussion of narcotics with veiled references to defendant “getting something” for him, and that defendant disclaimed any interest or ability to provide narcotics to Wiess. While defendant maintains that he was badgered into providing narcotics, there was no testimony that any badgering occurred before defendant’s first telephone conversation with Wiess. Accordingly, evidence of defendant’s readiness to supply narcotics at the time of this first conversation negates the “improper inducement” element of the entrapment defense. Furthermore, defendant’s testimony that Marty and Corky constantly badgered or pestered him between January and April 1991 was partially contradicted by Martin Gomez’s testimony that he only met with defendant once and did not again speak with defendant except to leave a message on defendant’s telephone answering machine. While defendant’s testimony that Corky badgered him was not specifically contradicted, defendant failed to elaborate on the nature of this “badgering.” In any event, leaving aside the issue, which we address below, of whether the State’s failure to call Corky to testify raises an inference against it, the trial court, as trier of fact, was not required to accept defendant’s exculpatory testimony. People v. Loferski (1992), 235 Ill. App. 3d 675, 682.

Moreover, consideration of the factors bearing on predisposition supports the trial court’s rejection of the entrapment defense. As discussed above, the trial court was persuaded the evidence presented by the State showing that defendant’s initial readiness to engage in the transaction and disbelieved the defendant’s testimony that he was reluctant to do so. Moreover, the record contains evidence of defendant’s familiarity with drugs. For instance, defendant appears to have been somewhat conversant with the terminology of the drug trade. (See Lambrecht, 231 Ill. App. 3d at 436; People v. Miszkiewicz (1992), 236 Ill. App. 3d 411, 431.) Defendant was also willing to accommodate the needs of drug users, as is evidenced by his statement during the sale to Wiess that he would be able to provide four ounces every week. (See People v. Draheim (1993), 242 Ill. App. 3d 80, 89 (defendant showed an inclination to accommodate undercover officer and informant’s needs by stating that he would try to get them more cocaine later).) The record contains evidence of drug use by defendant. While defendant may have told Wiess at some point that he did not like cocaine, defendant requested that Wiess let him take some of the big rocks out of the bag. Defendant also requested cannabis as part of the transaction.

According to defendant, the evidence demonstrates that he had no ready source of narcotics, indicating that he lacked a predisposition to commit the offense. Defendant notes that the transaction, although first discussed in January 1991, was not completed until May of that year. Defendant also notes that in May 1991, the transaction was postponed several times before it actually took place on May 6. We disagree with defendant that this evidence shows that defendant lacked a ready source of cocaine. According to Agent Wiess’ testimony, his negotiations with defendant in January 1991 were suspended because Wiess was unwilling to complete the transaction in Chicago. There is nothing to indicate that defendant lacked a source for narcotics at this time. The discussion of a drug sale resumed on April 30, and within a week defendant actually delivered approximately $5,000 worth of cocaine which he later told police he had obtained from his cousin and his cousin’s friend. The evidence shows that defendant had a ready source of narcotics.

Defendant also argues that the evidence does not show that he was making a profit on the sale. While prior to the sale itself defendant told Agent Wiess that he was not making any money on the deal, defendant told the officers who arrested him that he participated in the sale because he needed the money, apparently because of financial problems he was experiencing. (Cf. People v. Singletary (1992), 237 Ill. App. 3d 503, 506-07.) Moreover, defendant was willing to profit from the transaction by taking cannabis and some of the cocaine itself.

It is true that evidence does not show that defendant was engaged in a course of conduct involving similar offenses and defendant had no prior convictions for drug offenses. However, these factors do not overcome the other evidence of defendant’s willingness to make unlawful sales when the opportunity presented itself. (People v. Singletary (1992), 237 Ill. App. 3d 503, 507.) Nor does the fact that defendant was not observed cutting or testing the drugs preclude a finding of predisposition.

In support of his argument that he was entrapped, defendant cites People v. Poulos (1990), 196 Ill. App. 3d 653, and People v. Fisher (1979), 74 Ill. App. 3d 330. Both cases are factually distinguishable. In Poulos, the defendant had purchased a game room business from an individual who was working as a government informant. During the course of their business relationship, the informant repeatedly asked the defendant to find someone to supply cocaine to “Greg,” who was, in actuality, an undercover police officer. The defendant testified that he repeatedly refused these requests. Later the informant asked the defendant to sell Greg a package containing cocaine which the informant himself acquired. Defendant at first refused, but then relented. Under these circumstances, the appellate court reversed the defendant’s conviction. Poulos is distinguishable in that the State did not present evidence of the defendant’s predisposition. (See People v. Martin (1991), 219 Ill. App. 3d 1064, 1078.) Moreover, in Poulos the evidence was apparently uncontradicted that the defendant agreed to participate in the sale, which involved narcotics supplied by the informant, only after repeated urging by the informant. Here although the evidence was conflicting, the testimony of the State’s witnesses portrayed defendant as a willing participant from the outset.

Defendant’s reliance on Fisher is similarly misplaced. In Fisher, the defendant, who was working as a dancer at a tavern, sold tablets represented to be amphetamines to an undercover police officer present at the tavern. The defendant testified that the officer had previously asked her to sell him drugs on three occasions during the preceding week, but she refused. The defendant testified that she was afraid of the officer and wanted him to leave her alone, so she sold him some tablets previously given to her by another patron of the tavern which she thought were amphetamines. The undercover officer did not think he had asked the defendant for drugs prior to the occasion when he actually purchased them, but he did not deny that it was possible he had done so. Like Poulos, Fisher is distinguishable from the present case because of the uncontradicted evidence of the defendant’s repeated refusal to supply drugs prior to the actual sale and the apparent lack of evidence of predisposition. Defendant contends that in the present case, as in Fisher, the undercover officers were unable to procure drugs from the defendant. However, Fisher involved refusal, whereas the present case merely involved delay. Here, according to the evidence presented by the State, defendant was never unwilling to supply narcotics.

Defendant also argues that because the State failed to call Corky as a witness to rebut defendant’s testimony that he was badgered to commit the offense, an inference arises against the State. Defendant also maintains that the State’s failure to call Corky to rebut defendant’s testimony that Corky supplied the narcotics requires that his conviction be reversed. In support of the latter contention, defendant cites People v. Martin (1984), 124 Ill. App. 3d 590, 593, which contains the following statement:

“While the People are correct that there is no rule establishing entrapment as a matter of law solely because the government provided the controlled substance which the accused was charged with delivering (People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812), .it is persuasive evidence that if the substance was supplied by the government or its paid informer and the State fails to call the informer, to rebut the defendant’s testimony that the informant supplied the drugs to the defendant, a conviction for selling the drugs may not be sustained.” (Martin, 124 Ill. App. 3d at 593.)

Defendant suggests that this passage establishes a per se rule requiring reversal. We disagree. While the language in Martin is somewhat confusing, a per se rule of reversal would be contrary to the holding of the Illinois Supreme Court in People v. Cross (1979), 77 Ill. 2d 396, which expressly held that a conviction for unlawful delivery of a controlled substance need not be reversed simply because the government supplied the substance forming the basis for the prosecution. The court observed:

“The offense in question here is the unlawful delivery of a controlled substance and, although the government may have supplied the substance, the critical inquiry is whether the ‘criminal purpose’ of selling these substances originated with the defendants [citation]. By supplying an individual with controlled substances, the government is "merely facilitating or providing the opportunity for the individual to make an unlawful delivery. This is not entrapment under our entrapment statute [citation].” (Emphasis in original.) Cross, 77 Ill. 2d at 404.

Under Cross, the State’s unexplained failure to call an informant to rebut the defendant’s testimony that the informant supplied the narcotics may give rise to an inference against the State. (Cross, 77 Ill. 2d at 406; see also People v. Johnson (1989), 191 Ill. App. 3d 940, 945; People v. Simon (1981), 101 Ill. App. 3d 89, 95.) For several reasons, however, we believe an inference against the State would be inappropriate under the circumstances of this case.

In People v. Irby (1992), 237 Ill. App. 3d 38, 68, which arose from a murder prosecution, we discussed the general principles regarding the State’s failure to call a witness:

“The State is not obligated to call every witness who might testify concerning evidence of a crime. [Citations.] The failure to do so does not ordinarily create a presumption that the testimony of that witness would be unfavorable to the State. [Citation.] As a general rule, if a potential witness is available and appears to have special information relevant to the case, so that his testimony would not merely be cumulative, and the witness’ relationship with the State is such that it would ordinarily be expected that to favor it, the State’s failure to call the witness may give rise to a permissible inference that, if the witness were called, the witness’ testimony would have been unfavorable to the State’s case. *** However, no negative inferrence is raised when the witness is also known and available to the defense yet is not called by it.” (Emphasis in original.) Irby, 237 Ill. App. 3d at 68-69.

In the present case, even were we to assume, arguendo, that Corky should be considered an “agent” of the State for entrapment purposes generally, his relationship with the State was not such that he would ordinarily be expected to favor the State in his testimony. Corky was not enlisted by law enforcement officials to act as an informant and apparently had no agreement with the State. While Agent Wiess knew that Corky was assisting Martin Gomez, Wiess apparently had minimal contact with Corky. In addition, Corky was known to the defense, and there is no reason to believe Corky was any less available to the defense than to the State. (See People v. Parsons (1991), 222 Ill. App. 3d 823, 831.) Indeed, it was defendant who interjected Corky into the proceedings. When defendant first testified that Corky badgered him to sell narcotics, and later testified that Corky had supplied the narcotics, the State claimed surprise, asserting that it believed that defendant’s entrapment defense would be based upon Agent Wiess’ conduct. Near the end of the second day of trial, the assistant State’s Attorney indicated that after hearing defendant’s testimony he attempted to contact Corky but was unsuccessful. The assistant State’s Attorney indicated that he might present Corky’s testimony on the following day, although he did not ultimately do so. Under these circumstances, the State’s failure to call Corky to testify is not entirely unexplained.

Finally, any inference against the State regarding the source of the narcotics would be severely undermined by the fact that defendant’s testimony that. Corky supplied the cocaine was contradicted by his own statements to police, following his arrest, that he obtained the cocaine from his cousin, Jeff Higgins, and John Lofton.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

McLAREN and GEIGER, JJ., concur.