Appeal from the Circuit Court of McLean County; the Hon.
William T. Caisley, Judge, presiding.
PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 2, 1984.
Four years, 10 months later.
Motions to dismiss allowed.
The original proceedings in this matter were commenced on January 3, 1977. On that date, the LeRoy State Bank, as trustee under the will of Dean Bishop, filed a petition in the circuit court to amend the will.
The petition sought to amend the terms of a testamentary trust so that the trust would qualify as a charitable remainder unitrust under section 664 of the Internal Revenue Code (I.R.C. sec. 664 (1977)). One of the more significant amendments to the trust was that the annuity paid to the income beneficiaries was to be fixed at 5% of the net fair market value of the trust assets. The will had originally provided that all of the net returns of the trust corpus were to be paid to the income beneficiaries.
The income beneficiaries and the LeRoy Presbyterian Church were named as respondents in the petition. All of the named respondents signed written appearances which consented to an immediate hearing without notice on the bank's petition. A decree amending the will in accordance with the petition was entered on January 3, 1977.
The bank filed its final report as executor on June 5, 1979. All of the income beneficiaries signed forms acknowledging receipt of the final report, waiving notice of the report and consenting to the approval of the report. The bank was discharged as executor, and the estate was closed on June 21, 1979.
On November 16, 1981, the income beneficiaries (respondents here) filed a motion to vacate the decree amending the will. Respondents argued that the bank's failure to obtain their consent to the amendment to the will deprived the circuit court of subject matter jurisdiction and, therefore, the decree amending the will was void.
The Attorney General of the State of Illinois and the LeRoy Presbyterian Church filed motions to dismiss respondents' motion to vacate. The circuit court allowed the motions to dismiss and respondents have appealed.
Respondents' motion to vacate the decree amending the will was filed 4 years and 10 months after the decree was entered and thus constitutes a collateral attack on the decree. (See Federal Sign & Signal Corp. v. Czubak (1978), 57 Ill. App.3d 176, 372 N.E.2d 965.) The attack is grounded on the contention that the decree was void for lack of subject matter jurisdiction in the circuit court. See, e.g., Federal Sign & Signal Corp. v. Czubak ...