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McCarthy v. Taylor

Court of Appeals of Illinois, First District, Fifth Division

August 22, 2014

GERALD S. McCARTHY, Plaintiff-Appellant,

Page 808

Appeal from the Circuit Court of Cook County. No. 13 CH 0278. The Honorable Rodolfo Garcia, Judge Presiding.


Where the creator of a trust named plaintiff as the successor trustee of the trust if the named successor trustee could not act at the time of the creator's death, and the creator made a handwritten amendment to the trust appointing defendant as the successor after the original successor trustee died and just before the creator committed suicide, the trial court's finding that the handwritten amendment was valid was upheld by the appellate court, notwithstanding plaintiff's contentions that the amendment did not comply with the requirements of the trust's amendment clause or the laws of Illinois, since the amendment had to be " in writing," but there was no requirement that the amendment had to be a separate formal legal document, it did not need to contain a signature or an " express intent" of amending, it did not have to be delivered to the successor trustee and it did not have to comply with the formalities of prior amendments, such as being notarized or witnessed.

For APPELLANT: James E. Taylor, Law Office of James E. Taylor, P.C., Chicago, Illinois.

For APPELLEE: Colin Quinn Commito, Luther Franklin Spence, Law Office of Luther Franklin Spence & Associates, Maywood, Illinois.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Taylor concurred in the judgment and opinion.


Page 809


[¶1] Plaintiff Gerald S. McCarthy appeals the trial court's finding that a handwritten amendment to a trust naming defendant Rozlyn Taylor as the successor trustee is valid and enforceable. Plaintiff claims: (1) that during the last years of decedent Abraham Lincoln Reynolds III's life and at the time of his death, plaintiff was successor trustee; and (2) that the handwritten amendment to the trust appointing defendant as successor trustee is invalid as it neither complied with the requirements of the trust's own amendment clause nor complied with the requirements for amendments under Illinois law. For the following reasons, we affirm.


[¶3] I. The Complaint

[¶4] On January 4, 2013, plaintiff filed a verified complaint for declaratory judgment and other relief.

[¶5] The complaint alleges that on July 20, 2006, Reynolds created and executed the " A.L. Reynolds III 2006 Declaration of Living Trust" (the trust). Reynolds was the " first trustee and instructed that he would have full power over the trust during his life and that after his death the trust assets 'shall be administered by [Reynolds'] successor trustee(s) in accordance with the terms that are set forth'" in the trust. The trust named Cherie Coles[1] as the successor trustee and it

Page 810

provided that " if Coles could not act at the time of [Reynolds'] death, and no alternate successor was named," then plaintiff was to be appointed second successor trustee. The trust granted 10% of the residuary estate to plaintiff, 80% to Coles, and 10% to Elaine Lawell. However, if Coles predeceased Reynolds, her 80% interest would go to plaintiff.

[¶6] Coles passed away on April 23, 2007. The complaint alleges that, after Coles' death, Reynolds never appointed a replacement successor trustee, and " thus, pursuant to the terms of the Trust [plaintiff] became the successor trustee."

[¶7] On March 3, 2010, Reynolds " amended the Trust by a type-written, executed[,] and notarized document." Furthermore, the complaint alleges that this amendment " was delivered to [plaintiff], as successor trustee, during [Reynolds'] life as required by the Trust in order to make the Amendment effective."

[¶8] The complaint alleges that Reynolds left plaintiff a voice message on December 15, 2012. The message indicated that Reynolds was taking his own life and that " something was left in [Reynolds'] apartment."

[¶9] Reynolds committed suicide on December 15, 2012. After plaintiff listened to the voice message left by Reynolds, on December 16, 2012, he contacted the Chicago police department, which discovered Reynolds' body in his automobile.

[¶10] The complaint alleges that defendant[2] was on the scene when the police discovered the body and that she was left alone to go to Reynolds' apartment. The complaint further alleges that, " on information and belief, Taylor removed items from the apartment."

[¶11] According to the complaint, Reynolds' attorney contacted plaintiff on December 16, 2012, and told him that plaintiff was the successor trustee and that there were tasks that had to be accomplished. However, after meeting with defendant, the attorney contacted plaintiff and told him that he had forgotten that Reynolds had come to see him about a week before his death and given him instructions on amending the trust. The attorney told plaintiff that, under the amendment, defendant, not plaintiff, was the successor trustee and would take 80% of the trust assets.

[¶12] The complaint alleges that on December 19, 2012, the attorney sent plaintiff a copy of the amendment to the trust with a cover letter, which stated:

" You indicated to me by phone that A.L. left you a message in the evening of December 17, 2012, advising you that he visited with me and that he wanted you and Rozlyn to share the trust assets. At home at about mid-day on that same date, [Reynolds] presented to me the amended trust document that he had made in his own handwriting."

Two days later, on December 21, 2012, the attorney sent plaintiff a letter stating that his reference to December 17, 2012, in the cover letter should be replaced with December 15, 2012, the date that Reynolds passed away.

[¶13] The complaint alleges that the amendments " were not initialed, were not type-written, were not signed, and were not notarized -- as the Trust and [2010] amendment had been." The complaint further alleges that " the revisions are inconsistent ***

Page 811

and make no sense in places." For example, " on page 2, [plaintiff's] interest is stated to be both 20 and 10%."

[¶14] According to the complaint, " [the attorney], presumably at the direction of Taylor, began to contact financial institutions, the medical examiner, the condominium association, etc. claiming that he was acting under the direction of the successor trustee, Taylor, and indicating that Taylor had [the] power to direct the Trust." On December 26, 2012, plaintiff sent a letter to the attorney " requiring him to cease and desist from taking [any] further steps related to the Trust or any amendments thereto, actual or purported." On December 28, 2012, the attorney " indicated that he would refrain from liquidating assets under the Trust while this suit was drafted and filed[,] but did not commit to taking no further action under the Trust."

[¶15] In the complaint, plaintiff requested that the trial court declare the 2012 amendments to the trust invalid, enter a temporary restraining order preventing defendant from taking any actions with respect to the trust, and enter a preliminary and permanent mandatory injunction for the same. Moreover, plaintiff alleges " on information and belief, [that] Taylor, in conjunction with [the attorney] wrongfully assumed control, dominion and/or ownership of Trust assets."

[¶16] A. The Trust

[¶17] The first paragraph of the trust declares that the trust consists " of the property identified on [an] attached Schedule of Property." It declares Reynolds " first trustee" and provides that, upon Reynolds' death, the trust shall " be administered by [his] successor trustee(s) in accordance with the terms that are set forth" in the trust.

[¶18] The second paragraph of the trust, hereinafter referred to as " the amendment clause," provides:

" At any time during my life, I may amend or revoke this instrument or remove the successor trustee, by written notice delivered to the successor trustee, and if this instrument is completely revoked, all trust property held by the trustee shall be transferred and delivered in total and revert back to me as my personal and/or individual property or as I otherwise may direct in writing."

[¶19] The third paragraph of the trust, hereinafter referred to as " the succession clause," names Coles as Reynolds' successor trustee. The remainder of the paragraph provides:

" The successor trustee may resign at any time by written notice to me if living, otherwise to each beneficiary then entitled to receive assets from the trust. In the case of the resignation, refusal or inability to act of the successor trustee appointed to act hereunder, notice should be provided to me, if living, otherwise to the beneficiaries who shall appoint another successor trustee. If such notice is received by me and I am unable to then appoint a second successor trustee, I declare that Gerald McCarthy *** is hereby appointed second successor trustee. In the event that neither Cherie Coles nor Gerald McCarthy are able to serve as successor trustees and I am unable to then appoint an alternative second successor trustee, I appoint [my attorney] to serve in their stead."

[¶20] The fourth paragraph provides that, upon Reynolds' death, the successor trustee is to take possession of and provide care for Reynolds' dog " Joy Joy." If the successor trustee is unable to provide for his dog, Elaine Lawell is to provide for Joy Joy.

Page 812

[¶21] The fifth paragraph provides that all unliquidated assets and property in the trust are to be sold " and, thereby, reduced to cash" upon Reynolds' death. After the cash is used to satisfy certain expenses, obligations, and debts, the trust provides that " the remaining cash shall be distributed" in the following manner: (1) 10% to plaintiff; (2) 10% to Lawell; and (3) 80% to Coles.

[¶22] The sixth paragraph of the trust provides, in relevant part:

" In the event that Cherie Coles pre-deceases me, her percentage share (80%) shall be given to Gerald McCarthy and Gerald McCarthy's percentage share (10%) *** shall [be] extinguished and be ...

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