Appeal from the Circuit Court of Cook County, Illinois, County Department, Probate Division. No. 10 P 3334 Honorable James G. Riley, Judge Presiding.
The opinion of the court was delivered by: Justice Fitzgerald Smith
JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Pucinski and Sterba concurred in the judgment and opinion.
¶ 1 The petitioner-appellant, Robert A. Boyar (hereinafter Robert), appeals from an order of the circuit court dismissing his petition to contest the validity of an amendment to the trust of his deceased father, Robert E. Boyar. The circuit court predicated its decision to dismiss on the doctrine of election, which prohibits a party from both accepting a benefit conferred by a will while simultaneously maintaining an action to contest the validity of that document. The trial court found that since Robert had accepted a benefit conferred by the trust, i.e., personal property belonging to the trust, he had ratified the entire trust agreement and was barred from maintaining his action to contest the last amendment to that trust. On appeal, Robert first contends that we should reverse the circuit court's order because the doctrine of election applies solely to wills and not trusts. Robert also contends that even if the doctrine of election is extended to trusts, it should not apply to this case because: (1) his receipt of personal property from the trust was nominal and therefore not an acceptance of a benefit conferred by the trust in any meaningful sense; (2) his receipt of personal property was ambiguous and not done with full knowledge of the circumstances surrounding the creation of the challenged trust amendment; and (3) his receipt of personal property was not inconsistent with his challenge to the trust amendment, since it pertained only to the amendment appointing Dixon as trustee and not to any substantive elements of the trust. In support of his last contention, Robert points out that under the trust itself, the invalidity of the sixth amendment would not render the entire trust invalid as the trust contains a severability clause. For the reasons that follow, we affirm the judgment of the circuit court.
¶ 3 The record reveals the following undisputed facts and procedural history. On January 12, 1983, Robert E. Boyar (the decedent) established the Robert E. Boyar Trust (hereinafter the trust). Under the terms of the decedent's will dated September 11, 1997, "all of his property of whatever nature and kind" was to be distributed to the trust. The trust was restated by the decedent twice, in 1997 and in 2000. Beginning in 2002, over a period of eight years, the decedent amended the trust six times: the first amendment on February 19, 2002, the second on October 18, 2003, the third on May 20, 2005, the fourth on November 17, 2006, the fifth on February 24, 2007, and the sixth and final amendment on April 27, 2010.
¶ 4 In the first amendment to the trust, the decedent named the Northern Trust Company (hereinafter Northern Trust) and Robert as co-trustees of the non-marital trust, which were part of his trust. Northern Trust and Robert remained the designated cosuccessor trustees in the second and third amendments, and no changes to successor trustees were made in the fourth and fifth amendments. Under the original trust document, a trustee could be removed by a majority of the beneficiaries then eligible to receive mandatory or discretionary distributions of net income from the trust. The sixth amendment, however, revoked this language in the original trust, and instead appointed G. Grant Dixon (hereinafter Dixon), a licensed Illinois attorney, as the sole cotrustee and successor trustee. Under the sixth amendment, removal of a trustee was not possible by a majority of the beneficiaries. The sixth amendment, however, made no other changes to the trust document. Specifically, no changes were made to any distribution provision under the trust and no benefits were conferred upon Dixon, other than appointment as trustee.
¶ 5 The decedent died of a heart attack on May 19, 2010. He was survived by five children, all of whom are beneficiaries to the trust: (1) Robert; (2) Joan F. Boyar (hereinafter Joan); (3) Jeffrey W. Boyar (hereinafter Jeffrey); (4) Ellen L. Boyar (hereinafter Ellen); and (5) Linda J. Graziani (hereinafter Linda). According to the trust, the trust property was to be divided into as many shares as necessary to create an equal share for each of the decedent's five children who survived him, and one equal share for each predeceased child as well as one share for all of the decedent's grandchildren. The first five amendments to the trust specified and revised the distribution scheme of the trust property with respect to the five children.*fn1
¶ 6 A petition for probate of the decedent's will was filed on June 9, 2010. On that same date, the circuit court entered an order granting Robert independent administration of the decedent's estate, and naming Robert as an independent administrator.*fn2
¶ 7 After being informed by Dixon's counsel, Jeanine M. Cunningham, that the decedent had executed the sixth amendment to the trust pursuant to which Dixon would now be acting as trustee, on September 27, 2010, Robert filed a three-count verified petition to contest that amendment to the trust (hereinafter the petition).*fn3 The petition alleged that: (1) the decedent lacked the requisite mental capacity to execute the sixth amendment; (2) attorney Dixon had breached his fiduciary duty by placing himself as trustee and not allowing the income beneficiaries of the trust to remove him by majority vote; and (3) Dixon had exerted undue influence on the decedent in the procurement of the sixth amendment. The petition named Dixon as respondent and each of the beneficiaries as necessary parties.
¶ 8 According to the petition, the trust estate exceeds approximately $2.5 million. The petition alleged that Dixon was the decedents' neighbor for about five years and that he "orchestrated" the sixth amendment to the trust, knowing that the 84-year-old decedent suffered from dementia and would be incapable of appreciating or understanding the repercussions of that amendment.
¶ 9 The petition specifically alleged that in the last five years of his life, the decedent's physical health deteriorated so that he had become dependent on others. According to the petition, in the last three years of the decedent's life, his son, Jeffrey, moved into the decedent's home to help the decedent with his daily activities, including grocery shopping, doctor's visits, paying bills, managing finances, investing assets, and the like.
¶ 10 The petition further alleged that beginning in 2005, the decedent began to suffer from dementia, which progressively worsened up until his death. According to the petition, after suffering a fall and being taken to Hinsdale Hospital in January 2010, the decedent was moved to the Plymouth Place Nursing Home in LaGrange. He was subsequently treated by two geriatric specialists, both of whom opined as to his inability to make decisions regarding his finances. In support of this allegation, Robert attached copies of letters by the two treating physicians prepared in the months prior to the decedent's death. The first letter was from Dr. Rahmawati Sih and was dated February 24, 2010, and the second was written by Dr. Mohammad T. Siddique and dated March 3, 2010. Both letters contained identical diagnoses, staging that the decedent suffered from "congestive heart failure, atrial fibrillation and Lewy Body Dementia, which [was] in the moderate stages." Both letters also opined that "due to his significant dementia," the decedent was "unable to make decisions regarding his personal and financial affairs, and thus, is considered disabled."
¶ 11 The petition further alleged that the sixth amendment to the trust was prepared by attorney Jeanine M. Cunningham, who was an attorney in the same building and on the same floor as attorney Dixon. The petition alleged that because the sixth amendment removed any other individual and corporate trustees and took away the right of the majority of the income beneficiaries to remove the trustee, Dixon had used the amendment to give himself sole control of the trust so as to collect trustee fees.
¶ 12 On November 2, 2010, Dixon filed a petition for issuance of a citation to discover and recover assets (hereinafter citation) against Robert pursuant to section 16-1 and 16-2 of the Illinois Probate Act of 1975 (Probate Act) (755 ILCS 5/16-1, 16-2 (West 2008)). The citation alleged, on information and belief, that on several occasions Robert impermissibly removed personal property located in the decedent's primary residence and belonging to the trust. The citation further alleged that Dixon as trustee informed Robert that these items belonged to the trust and requested that Robert provide him with an itemized list of any items removed.
¶ 13 In support of these allegations, the citation attached a copy of the general bill of sale and assignment of assets to the trust, which was executed by the decedent on October 18, 2003. This bill of sale specifically transferred "all of the [decedent's] furniture, furnishings, and household goods, including any similar interest [the decedent] may have in [his] jewelry, silver, books, pictures, works of art, paintings, collectibles, such as stamps, coins, antiques or memorabilia, and all other tangible personal property [other than vehicles]" located in the decedent's primary residence at 728 South Stone LaGrange, Illinois, and elsewhere, to the trust.
¶ 14 The citation also attached copies of two letters sent by Dixon as trustee to Robert. The first letter dated August 10, 2010, requested that Robert "itemize any and all items removed from the home, including a description, name of person removing said items, date of removal, current location, and approximate value," and provide the itemized list to Dixon as trustee within 14 days of the receipt of the letter. The second letter dated September 2, 2010, reiterated that Dixon was waiting on Robert to provide him with the inventory of the items he had removed from the decedent's home. The letter stated that "all the other children have provided me with their lists," and informed Robert that by "failing to provide this documentation, [Robert was] interfering with the prompt administration of this trust." The letter finally warned that if Robert did not provide Dixon with the inventory prior to September 9, 2010, Dixon, as trustee, would assume that Robert was refusing to produce the list and would be forced to "take appropriate action."
¶ 15 Subsequent to Dixon's citation, on November 10, 2010, Robert filed an emergency motion for leave to remove personal property from the decedent's home prior to the sale and closing of the home. In that motion, Robert admitted that the decedent had executed a general bill of sale and assignment of assets on October 18, 2003, which assigned all his tangible personal property to the trust. The motion, however, alleged that as permitted by the trust, the decedent's children allocated the tangible personal property among themselves on or about May 25, 2010 and July 16, 2010. The motion alleged that "all of the decedent's children were present and they all came to an agreement on the distribution of the personal property." The motion further alleged that a portion of the personal property was left behind in the decedent's home, and that all of the children, except for Jeffrey, have confirmed that they do not want the remaining property. According to the motion, the remaining property was appraised by an auction home for a total price of $1,560. The motion sought permission to remove the remaining personal property from the home to prepare the home for sale prior to November 17, 2010. In support of his motion, Robert attached a copy of the appraisal list of the remaining 56 items at the decedent's home, prepared by Bunte Auction Services, Inc., and dated November 5, 2010.
¶ 16 The circuit court granted Robert's emergency motion, ordering that all of the decedent's children be notified that the personal property would be removed and disposed of from the residence on November 17, 2010, and providing them with reasonable access to the home before the sale so that, if they chose, they could take additional personal property and notify Robert's and Dixon's counsel, if they did so.
¶ 17 On November 24, 2010, Robert filed his response to Dixon's citation to discover and recover assets. In that response, Robert alleged that the citation should be denied because in allocating the personal property among themselves the decedent's children had acted in accordance to the exact terms of the trust,*fn4 and the remaining property was sold after an order by the circuit court permitted the removal of the property from the home. The response also finally attached a receipt for the personal property Robert had taken from the home, which Dixon had repeatedly requested. That receipt was signed by Robert on November 22, 2010, and acknowledged Robert's receipt of 14 items of personal property "as a partial distribution of [his] interest from the [trust], as amended." The items included: a stereo system, a card table set, art figurines from the living room, a coin collection, end tables from the living room and den, a television, DVD player and a few videos, an army uniform, a part of a China set, securing of the decedent's fire arms, a Samurai sword, an Indian knife, a Persian knife, a fork set and miscellaneous family photographs.
¶ 18 On December 27, 2010, Dixon filed his reply to Robert's response to the citation, contending that in his response to the citation for discovery Robert had inappropriately raised issues of fact, namely whether the decedent's property was distributed by mutual agreement and without objection from all of the beneficiaries. According to the reply, such issues are only properly resolved through discovery. The reply pointed out that Robert's unverified response alleging such mutual agreement by the ...