Brother sues to undue kin's last will and testament

Kelly Holleran Jun. 23, 2009, 1:34pm

A man is suing the executrix of his brother's estate, saying the executrix falsified his brother's probate of will and letters testamentary.

Leonard Matthews filed a lawsuit June 17 in St. Clair County Circuit Court against Azelia Matthews and Sha-Net Davis, executrix of Herbert Matthews.

Leonard Matthews says Herbert Matthews died on Jan. 1, 2007, at the Collinsville Care Center.

Herbert Matthews left his brothers -- Leonard Matthews, Edward Matthews and Alfred Matthews – as his only surviving heirs at law, according to the complaint.

Allegedly, Herbert Matthews bequeathed all his property to Azelia Matthews and Davis and named Davis as executrix of his estate in an alleged written document dated Nov. 18, 2006, the complaint says.

The will was admitted to probate by St. Clair County Circuit Court on Feb. 23, 2007. On the same day, Davis falsely testified under oath that the testator's heirs were defendants, the suit states. In addition, she filed a proof of heirship, but failed to list Edward Matthews and Leonard Matthews, according to the complaint.

However, Leonard Matthews says the will was procured through the fraudulent conduct of Azelia Matthews and Davis.

"At the time of the making of the purported will, decedent was of unsound mind and memory and without power to devise or bequeath real or personal estate by will, in that he did not then have mental capacity to know, and did not know, the nature of extent of his property, the natural objects of his bounty and his relations with them, or the disposition he wished to make of the property, nor did he understand the nature of his act or the act of the supposed will," the complaint says. "He suffered from dementia and schizophrenia."

On July 26, 2007, the court entered an order allowing the sale of Herbert Matthews's real estate, the suit states.

However, as of the filing of the suit, Davis had not filed a report of sale of real estate and had not filed an estate inventory, Leonard Matthews claims.

"Plaintiff fears that decedent's assets will be seized and dissipated by defendants to irreparable injury as an heir of decedent and to the irreparable injury to the heirs of Herbert Matthews," the complaint says.

In the two-count complaint, Leonard Matthews is asking the court to purport Herbert Matthews's last will and testament to be set aside and declared not to be his last will and testament; to judge the probate of the purported will be set aside; to rule that Davis be removed as executrix of the estate of Herbert Matthews and that a new one be appointed; to order the defendants to account for the assets of Herbert Matthews's estate; and to distribute Herbert Matthews's estate between Leonard Matthews, Edward Matthews and Alfred Matthews.

He is also asking the court issue a temporary and permanent injunction to prevent the defendants from disposing of Herbert Matthews's assets and to turn them over to the clerk of the court and to prohibit the defendants and any banks or brokerage houses from disposing of any of Herbert Matthews's remaining assets.

In addition, he is seeking a judgment in excess of $50,000, plus punitive damages of $500,000, costs and other relief the court deems just.

George R. Ripplinger of Ripplinger and Zimmer in Belleville will be representing her.

St. Clair County Circuit Court case number: 09-L-322.

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