KENNETH GWINN, JR.; GEORGE GWINN, and ROBERT GWINN, Plaintiffs-Appellants,
KENNETH GWINN, SR.; MARIA MAY FRITZ, a/k/a Maria May Gwinn, Defendants (Kenneth Gwinn, Sr., Defendant-Appellee).
from the Circuit Court of Du Page County, No. 13-CH-3347; the
Hon. Bonnie M. Wheaton, Judge, presiding.
Kenneth J. Vanko and Gregory P. Adamo, both of Clingen,
Callow & McLean, LLC, of Lisle, for appellants.
Patrick J. Williams and Vincent C. Mancini, both of Ekl
Williams & Provenzale LLC, of Lisle, for appellee.
JUSTICE ZENOFF delivered the judgment of the court, with
opinion. Justices Hutchinson and Jorgensen concurred in the
judgment and opinion.
1 Plaintiffs, Kenneth Gwinn, Jr., George Gwinn, and Robert
Gwinn, filed a four-count complaint against Kenneth Gwinn,
Sr. (defendant), and Maria May Fritz-their father and his
wife. Plaintiffs' action centered on distributions that
defendant made as both the trustee and the primary
beneficiary of the Betty M. Gwinn Trust, which his late wife
(Betty) established. The trial court dismissed
plaintiffs' complaint for failure to state a claim upon
which relief could be granted (735 ILCS 5/2-615 (West 2014)).
Plaintiffs appeal the dismissal only of the first two counts,
directed against defendant but not Fritz. They contend that
these counts stated causes of action for, respectively,
breach of the trust and breach of fiduciary duty. We reverse
2 Plaintiffs' second amended complaint, filed April 23,
2015, alleged as follows. Plaintiffs are three of defendant
and Betty's four children. Kenneth Jr. resides in West
Bloomfield, Michigan; Robert resides in Oak Brook, Illinois;
and George resides in Scottsdale, Arizona. The fourth child,
Katherine Weyrens, is not involved in this case. Defendant
resides in both Oak Brook, Illinois, and Montrose, Colorado.
Fritz resides in Montrose, Colorado.
3 On May 8, 2002, Betty executed the trust. She named herself
and defendant as initial trustees. The "Declaration of
Trust" (Trust Agreement) stated that Betty had four
children now living: plaintiffs, who resided at the addresses
given in the second amended complaint, and Weyrens, who
resided in Topeka, Kansas. Article I stated in part, "I
intend by this Trust Agreement to provide for my spouse and
all my children." Article IV stated that, should Betty
predecease defendant, the trustee shall divide the trust
property into two separate trusts, the "Marital
Trust" and the "Family Trust." The former
would consist of "an amount equal in value to the
smallest amount of the federal estate tax marital deduction
allowable to [Betty's] estate that will result in the
least possible federal estate tax being payable at [her]
death." The latter would consist of the balance of the
4 According to the second amended complaint, in 2009, the
trust assets' total value was less than the federal
estate-tax exclusion of $3.5 million. Thus, the Family Trust
contained all the trust assets.
5 Article IV, section 2, stated, as pertinent here:
"The Marital Trust shall be administered by the trustee
for the benefit of my spouse as follows:
(a)The trustee shall pay or apply for my spouse's
benefit, at least quarterly during my spouse's lifetime,
all of the net income from the Marital Trust.
(b)The trustee shall also distribute to or for my
spouse's benefit as much of the principal of the trust as
is necessary or advisable for my spouse's education,
health, maintenance, companionship, enjoyment, medical care,
comfort, support and general welfare. The trustee shall take
into consideration, to the extent that the trustee deems
advisable, any income or resources of my spouse which are
outside of the trust and are known to the trustee.
(c)Notwithstanding provisions (a) and (b) above, the trustee
shall also distribute any part or all of the principal of the
Marital Trust to my spouse at any time upon his written
request. Such distribution must be made pursuant to my
spouse's voluntary ...