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In Re Estate of Robert E. Boyar (Robert A. Boyar v. Grant Dixon et al.

April 4, 2013


The opinion of the court was delivered by: Justice Karmeier

JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Garman, and Theis concurred in the judgment and opinion.

Justice Burke dissented, with opinion.


¶ 1 The questions we are asked to resolve in this appeal are: (1) whether the "doctrine of election" applicable to will contests should be extended to challenges to amendments to living trusts in cases where the trust serves the same purpose as a will, and (2) if so, whether the challenge to the trust amendment at issue in this case should nevertheless be permitted to proceed under one of the doctrine's exceptions. The circuit court held that the doctrine of election was applicable to the trust in this case and that because the trust beneficiary had accepted property belonging to the trust following the settlor's death, he was barred from contesting an amendment to the trust pertaining to removal of the trustee. The appellate court affirmed in a published opinion, agreeing that the doctrine should apply to trusts which serve the same function as wills and concluding that none of the exceptions to the doctrine applied here. 2012 IL App (1st) 111013. For the reasons that follow, we have determined that there was no need for the lower courts to address whether the doctrine of election should be extended to living trusts because that doctrine could not be invoked under the circumstances present here in any case. The judgments of the circuit and appellate courts are therefore reversed, and the cause is remanded to the circuit court for further proceedings.


¶ 3 Robert E. Boyar (Decedent) died testate on May 19, 2010. The following month, his will was admitted to probate and letters of office as independent administrator were issue to one of his sons, Robert A. Boyar (Robert).

¶ 4 Under the terms of Decedent's will, all of his property was to be distributed to a revocable living trust he had established in 1983 known as the Robert E. Boyar Trust. Decedent and his spouse, Patricia, were designated as trustees of that trust. Under the terms of the trust, the trust property was to be divided into two separate trusts in the event Patricia survived Decedent, the Marital Trust and the Family Trust. In the event Patricia did not survive him, which is what ultimately happened, the trust was to be divided into separate shares upon his death and the shares were to be distributed to his heirs.

¶ 5 Decedent subsequently executed written restatements of the trust, one in 1997 and a second in 2000. Then, beginning in 2002, he amended the trust multiple times.

¶ 6 Article 15, section 2(c), of decedent's 2000 restatement of the trust provided that after the death or disability of both Decedent and Patricia, 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. In the first of the amendments to the trust, Decedent provided that as to non-marital trusts created under the trust instrument, Decedent's son Robert and The Northern Trust Company were to serve as co-trustees following his death. In four subsequent amendments to the trust, the designation of Robert and The Northern Trust Company as co-trustees remained unchanged.

¶ 7 Decedent assigned all of his tangible personal property to the trust in 2003. Patricia, his wife, died approximately two years later. When Decedent himself passed away in 2010, he was survived by five children, including Robert. Under the provisions of the trust, the trust property was to be divided so that each of the five children would receive one equal share, with one additional share to be divided among Decedent's grandchildren. The trust further provided that Decedent's children were to allocate any of his nonbusiness tangible personal property (jewelry, clothing, household items, and the like) among themselves "as they shall agree."

¶ 8 As noted earlier in this opinion, Decedent's will was admitted to probate and letters of office as independent administrator were issued to Robert within weeks of Decedent's death. In addition, and in accordance with the terms of the trust, Robert and his four siblings agreed on how to allocate Decedent's tangible personal property among themselves. They did so after meeting together on or about May 25, 2010, which was six days after Decedent's death, and again on July 16, 2010. Robert described his share as consisting of the following items: a stereo system, a card table set, art figurines from Decedent's living room, a coin collection, end tables from Decedent's living room and den, a television set, a DVD player and "a few videos," an army uniform, part of a china set, "securing of Decedent's fire arms," a Samurai sword, an Indian knife, a Persian knife, a fork set and miscellaneous family photographs.

¶ 9 Unknown to Robert and his siblings was that on April 27, 2010, less than a month before Decedent's death, a sixth and final amendment to the trust had been executed. The amendment left undisturbed the substantive provisions of the trust itself. It merely revoked former article 15 of the trust and replaced it with a new article 15 naming Decedent's friend and neighbor, a lawyer named G. Grant Dixon, to be his cotrustee while Decedent was living and then to be his successor trustee upon Decedent's death or at such time as Decedent ceased to act as trustee or cotrustee. Under this revision, Dixon was not subject to removal by a vote of the income beneficiaries.

¶ 10 Acting under the authority conferred by the sixth amendment,

Dixon sent written notice to Robert that he considered all property within Decedent's home to belong to Decedent's trust and demanded that Robert provide him with "an itemization of any and all items removed from the home, including a complete description, name of person removing said items, date of removal, current location, and approximate value." The notice and demand was dated August 10, 2010, and addressed to Robert's lawyer. Dixon faxed a follow-up demand to Robert's lawyer on September 2, 2010.

¶ 11 Approximately one week later, on September 10, 2010, Robert filed a petition in circuit court of Cook County challenging the validity of the amendment to the trust naming Dixon as trustee. The petition alleged that Decedent had been "unduly influenced to create [that amendment] at a time that he clearly lacked the mental capacity to create such a document." According to the petition, Decedent began suffering from dementia in 2005 and his mental capacity progressively worsened. During the last five years of his life, Decedent was dependent on others to manage his personal affairs, including paying bills, investing his assets, doing grocery shopping, and going to the doctor. Decedent's eyesight began to fail and he could not drive. Eventually, during the last three years of Decedent's life, one of his sons, Jeffrey, moved in with him to assist him.

¶ 12 Robert's petition further alleged that in early 2010, Decedent was admitted to the hospital because of congestive heart failure. His physical and mental health further deteriorated to the point where he was unable to return home. Instead, he was transferred to a nursing facility in LaGrange Park known as Plymouth Place.

¶ 13 According to Robert's petition, Plymouth Place advised him in February of 2010 that Decedent was unable to make decisions for himself and that Robert would need to make all decisions for him. This was corroborated by Decedent's physicians in letters dated February 24, 2010, and March 3, 2010, which stated that "[d]ue to his significant dementia, [Decedent] is unable to make decisions regarding his personal and financial affairs and, thus, is considered disabled."

¶ 14 Robert alleged that the amendment to the trust instrument naming

Dixon as sole trustee was executed by Decedent in April of 2010, just a month before Decedent's death and during a time when Plymouth Place was in the process of transferring him to the facility's Alzheimer's unit. Robert contended that the amendment was orchestrated by Dixon in order to permit Dixon to maintain control of the trust and allow Dixon to collect fees for doing so, that Decedent lacked the mental capacity to execute the sixth amendment, that Dixon came to occupy a position of the trust in Decedent's life, and that Dixon violated that trust by taking advantage of Decedent's mental and physical disabilities for his own personal gain. The substantive provisions of the trust instrument itself were not questioned.

ΒΆ 15 After Robert filed his petition challenging the validity of the amendment naming Dixon as trustee, Dixon, purporting to act in his capacity as trustee, filed a petition pursuant to the Probate Act of 1975 (755 ILCS 5/1-1 et seq. (West 2010)) requesting issuance of a citation directed at Robert, individually and as administrator of Decedent's estate, to discover and recover assets. As grounds for that petition, Dixon asserted, on information and belief, that Robert had ...

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