## Facts

- Edward C. Cancik built a family mausoleum at Woodlawn Cemetery in Illinois and paid for perpetual care, including a partial payment placed in a perpetual-care fund.
- In 1978, Cancik executed a will that (1) gave his “personal effects” to his cousin, Charles E. Cancik, and (2) left the residuary estate to a bank as trustee of a testamentary trust, directing that trust income be used for perpetual mausoleum care.
- The will also stated that the testator had “intentionally omitted” the names of relatives from the will “for reasons” he considered sufficient, except for Charles.
- Cancik died in 1982; the estate exceeded $200,000.
- The cemetery association determined only $10,850 was needed to provide the contemplated perpetual care, leaving a substantial surplus if the entire residue were dedicated to the mausoleum trust.
- A guardian ad litem was appointed for unknown heirs; investigation identified 12 additional cousins living in Czechoslovakia.
- The parties agreed the entire residuary estate could not be justified for mausoleum care, but disputed who should receive the excess: Charles alone or all heirs under intestacy.

## Issues

1. Whether the surplus beyond what was reasonably required to fund the mausoleum-care trust passed solely to Charles or passed by intestacy to all heirs.
2. Whether a will clause expressing an intent to “omit” or “disinherit” unnamed relatives can prevent those relatives from taking property not effectively disposed of by the will.

## Decision

- The Illinois Supreme Court affirmed the lower courts’ orders distributing the excess as intestate property.
- The court held the will did not dispose of the surplus remaining after fully funding the mausoleum-care purpose.
- The “intentionally omitted” clause was not an operative devise of property and did not bar the omitted relatives from sharing in intestate property.

## Legal Principles

- A presumption against partial intestacy yields to the will’s actual dispositive language; courts may not avoid intestacy by speculation when the will fails to dispose of property.
- Heirs are not cut off from taking intestate property by a mere statement of omission or disinheritance; disinheritance must be accomplished by an effective testamentary disposition of the property to someone else.
- A residuary gift in trust tied to a specific purpose is construed in light of that purpose; once the purpose is fully satisfied, property not fairly within the purpose and not otherwise devised may pass by intestacy.

## Conclusion

The court held that surplus estate assets remaining after funding a purpose-limited mausoleum-care trust were not disposed of by the will and therefore passed under intestacy to the decedent’s heirs, notwithstanding a clause stating that other relatives were intentionally omitted from the will.


In re Estate of Cancik, 476 N.E.2d 738 (Ill. 1985)