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In re Vardalos’ Estate, 24 Ill. App. 3d 520, 320 N.E.2d 568 (1st Dist. 1974).

Issue:

Whether the facts establish as evidence a valid gift causa mortis while Gus Vardalos was
facing death, or was he incompetent to make such a gift?

Holding:

The Appellate Court determined the decedent, Gus Vardalos, made a valid gift causa mortis
to his nephew the Respondent, as established by the testimony and evidence.

Statement of the Parties:

The administrator of Gus Vardalos’ estate, his daughter Betty Bagrowe, filed a citation to
discover assets comprising her father’s estate. She then sued her cousin, Alex Giannoulious, for
$7,757.61, monies emptied out of a savings account and gifted to him by her father.

Statement of the Facts:

Gus Vardalos, the decedent, suffered strokes that left him disoriented, remote, agitated, and
removed, as testified to by his doctor. He was admitted to Augustana Hospital emergency room in
November 1971, where he remained until his death in February 1972.

His daughter testified during this three month period, she visited her father only twice and
this did not include holidays including Thanksgiving or Christmas.

On the other hand, the decedent’s brother, Steve Vardalos, testified he and his brother
spoke weekly by phone, and he visited his brother frequently for a two week period during his
hospital stay. During those two weeks, the Respondent, Alex, drove his uncle Steve to see his other
uncle Gus, daily. Steve testified the decedent acted all right, and recognized him. He also testified
the decedent offered an unspecified gift to his nephew, conditional upon his release from the
hospital. Steve never saw his niece, the Petitioner, during that visit.

A friend of the decedent’s, Catherine Horvarth, testified she had been close to the decedent
for 10 years, and had known him for a total of 30. The decedent contacted her when he fell sick.
She visited him daily in the hospital, and the only family members she witnessed visiting the
decedent were his brother Steve and the Respondent. She testified she witnessed the decedent sign
a bank transfer slip over to the Respondent, state he felt his nephew the Respondent was like a son
to him, and although the decedent was sick and occasionally confused, was of sound mind.

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The Respondent testified that years ago he resided with his uncle upon first moving to
America from Greece for seven years, and the day his uncle signed the bank slip, he transferred the
funds.

Procedural Posture:

Upon the death of her father, the Petitioner filed a citation to discover all his assets. When a
gift to her cousin was found, she argued that her father was not of sound mind to make a valid gift.
The decedent’s nephew argued that her father was not of sound mind to make a valid gift. The
decedent’s nephew argued that a valid gift had been made, without distinguishing whether it was a
gift inter vivos or a gift causa mortis. The trial court did not clearly distinguish between whether
their ruling was based on the nature of the gift or the decedent’s donative capacity. Conversely, the
Respondent successfully argued that all the evidence proved a valid gift causa mortis, without
addressing a gift inter vivos. The Petitioner failed to reply to the Respondent’s contention, and the
Respondent failed to argue the Petitioner waived her right to contest whether enough evidence
existed at the Appellate level since she did not raise the issue in trial court.

Rationale:

The Appellate Court enumerated the elements of a gift causa mortis as: the donor must be
stricken with a fatal disorder; the death of a donor must occur as a result of the very disorder
without any true recovery; the gift must be made conditional on the donor’s death by the said
disorder; and the actual delivery of the gift must have occurred to the donee. The court informed
that the burden to prove such a gift lies on the donee by clear and convincing evidence. The court
also informed that by virtue of the familial relationship existing between the decedent and the
respondent, a lesser burden of proof was required, when no evidence of fraud or undue influence
exists. The Petitioner never argued that the Respondent exercised such. Based on the testimony of
all the parties, the court concluded the decedent was aware of his impending death. The court
stated that based on the testimony of his brother and friend, Mr. Vardalos made the gift to his
nephew conditionally based on whether he recovered or not and was of sound mind when he did
so. The court gave as much weight to the laymen testimony of friends and family as it did the
physician’s testimony that he was disoriented. This was in opposition to the Petitioner’s assertion
that her father lacked testamentary capacity when he made the gift, to which the court stated
sickness does not constitute a lack of mental capacity. The court also restated the testimony that
the Petitioner rarely visited her father while in the hospital; while on the other hand, the
Respondent did so daily.

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Disposition:

The Appellate Court affirmed the Trial Court’s opinion that the elements of a valid gift causa
mortis had been met.