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06/02/94 ESTATE LOTTA ROSALIND STERN v. WANDA A.

June 2, 1994

IN RE ESTATE OF LOTTA ROSALIND STERN, DECEASED. NORTHERN TRUST COMPANY OF CHICAGO, SUCCESSOR TRUSTEE OF LOTTA R. STERN TRUST DATED MAY 23, 1980, PETITIONER-APPELLANT,
v.
WANDA A. GIBBS, INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF LOTTA ROSALIND STERN; AMERICAN RED CROSS, MID-AMERICA CHAPTER; SAINT JUDE TEMPLE; LINDA HAYGOOD; HEART ASSOCIATION OF CHICAGO; GLENCOE PUBLIC LIBRARY; AND UNKNOWN HEIRS, RESPONDENTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Frank M. Siracusa, Judge Presiding.

Released for Publication August 2, 1994.

Theis, Hoffman, Cahill

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

Northern Trust Company, the successor trustee of the Lotta R. Stern Trust dated May 23, 1980, filed a petition to contest the 1989 will of Lotta R. Stern. Wanda Gibbs, executrix of the 1989 will, moved for summary judgment on this petition. (735 ILCS 5/2-1005 (West 1992).) The probate court granted Gibbs' motion on October 20, 1992. We now reverse the decision of the lower court and remand this case for further proceedings consistent with this opinion.

FACTUAL BACKGROUND

On the sparse record before us, we note the following factual background. Lotta R. Stern executed a will on May 23, 1980. On that same date, she established the Lotta R. Stern Trust dated May 23, 1980 (hereinafter referred to as "the Stern Trust"). The will devised the residue of Lotta Stern's estate to the acting successor trustee of the "Lotta R. Stern Trust Dated May 23, 1980, as in effect at my death" and named Lotta Stern as the trustee of the Stern Trust and the Northern Trust Company as the successor trustee. In essence, then, Lotta Stern created a pour-over will in 1980. Northern Trust was also named as the executor of this will.

In 1989, Lotta Stern apparently executed a second will which revoked the 1980 will and named Wanda Gibbs as executrix of the will. After Stern's death, Northern Trust filed this petition to contest the validity of the 1989 will. In response, Gibbs filed a motion for summary judgment, contending that there was no issue of material fact and that Gibbs was entitled to judgment as a matter of law.

During a proceeding on a citation to discover assets issued against Northern Trust, the probate court entered an order on April 27, 1992, finding that the Stern Trust had terminated on May 12, 1988. Gibbs argued that, because the Stern Trust had terminated, Northern Trust no longer has an interest under the prior will and was therefore not an interested party who had standing to bring this action. The probate court granted Gibbs' motion for summary judgment.

Northern Trust appeals this decision of the lower court. The central issue raised in this appeal revolves around whether section 4-4 of the Probate Act (755 ILCS 5/4-4 (West 1992)) affects the Stern Trust. In other words, is it possible that, if the 1989 will is found to be invalid, the Stern Trust could be revived pursuant to section 4-4?

ANALYSIS

The Meaning of Section 4-4

Section 4-4 of the Probate Act, entitled "Testamentary additions to trusts," states, in part:

"If the trust is terminated prior to the testator's death by revocation of the trust or by revocation of that portion of the instrument creating the trust, the bequest or appointment shall take effect according to the terms and provisions of the instrument creating the trust as they existed at the time of the ...


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