United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
S. SHAH, UNITED STATES DISTRICT JUDGE
David Lipari passed away, a dispute arose over the
beneficiary of his life insurance policy. The insurer,
Minnesota Life Insurance Company filed a complaint for
interpleader and a motion to deposit funds in this action.
Defendants Susan, John, Carol, Mary and Paul Lipari,
David's ex-wife and children, respectively, filed
cross-claims against their co-defendants, Linda Sullivan,
David's sister, and Clorinda D'Agnolo, David's
significant other. The Liparis move for partial summary
judgment regarding the distribution of the Minnesota Life
Insurance policy proceeds. The parties have asked the court
to resolve: (1) who is the beneficiary of the life insurance
policy; (2) which is the controlling document of the trust;
and (3) who is the trustee. For the following reasons, the
Liparis' motion for partial summary judgment is granted
in part and denied in part.
judgment is appropriate if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
A genuine dispute as to any material fact exists if the
evidence would allow a reasonable jury to return a verdict
for the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Justifiable inferences
are drawn in the nonmoving party's favor. Id. at
255. The moving party bears the burden of establishing that
there is no genuine dispute as to any material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
October 23, 2001, David Lipari executed the “David M.
Lipari Trust Agreement.” [57-12] at 1-5. The subsection
“Trustee and Powers” provides, in relevant part:
I shall act as Trustee under this instrument. Upon my death,
or if I resign or become incapacitated, my spouse, SUSAN M.
LIPARI, shall act as successor Trustee. If SUSAN M. LIPARI is
unable or unwilling to act, then CAROL MORIARTY shall act as
successor Trustee. If CAROL MORIARTY is unable or unwilling
to act, then CAROLYN LINDGREN shall act as Trustee. If
CAROLYN LINDGREN is unable or unwilling to act, then LORAINE
DILETTI and DENISE SULLIVAN shall act as Co-Trustees. If only
one of the aforementioned individuals is able and willing to
act, then TERRY SULLIVAN shall act as Co-Trustee with the
remaining Co-Trustee. If only one of the aforementioned
individuals is able and willing to act, then that individual
shall act alone as sole Trustee. If none of the
aforementioned individuals are able and willing to act, then
NEW YORK LIFE TRUST COMPANY, F.S.B., (or any successor to its
trust business) shall act as final Trustee hereunder;
provided, however, that the Corporate Trustee shall have no
duties under this instrument until it has actual knowledge or
has received notice in writing of the death, resignation or
incapacity of all of the above named individual Trustees.
[57-12] at 3. Over six years later, David and Susan ended
their marriage.  ¶ 45. The marriage dissolution
order required David to name his four children as sole and
exclusive beneficiaries under his wills and trusts. 
¶¶ 50-51; [21-3] at 11.
document dated February 19, 2011, and titled “First
Amendment to the David M. Lipari Trust Agreement Dated
October 23, 2001, ” bears David's signature and a
notary's signature. [97-2] at 1-2. It purports to delete
the original trust's list of successor trustees and
replace the relevant language with the following:
I shall act as Trustee under this instrument. Upon my death,
or if I resign or become incapacitated, the following named
individuals, in the following order, shall serve as successor
Trustee: 1. My sister, LINDA SULLIVAN; 2. My sister, DENISE
SULLIVAN; 3. My sister, LORI DILETTI; 4. My brother, JOE
LIPARI; and 5. My significant other, CLORINDA D'AGNOLO.
In the event that CLORINDA D'AGNOLO and I are married at
the time of my death, resignation or incapacity, CLORINDA
D'AGNOLO's nomination and appointment as successor
Trustee shall take priority over any other named individual
herein. In the event that my spouse, CLORINDA D'AGNOLO,
is unable or unwilling for any reason to so act, the
remaining named individuals shall then be nominated, in the
same order following her appointment thereof.
[97-2] at 1-2. The Liparis challenge the authenticity of this
document.  at 8-9. During a deposition in David and
Susan's divorce case, David was shown a document titled
“First Amendment to the David M. Lipari Trust Agreement
Dated October 23, 2001, ” which included the language
quoted above and which was identical to the first page of the
First Amendment filed as an exhibit in this case.  at 8.
David testified that he never executed the document.
named the David M. Lipari Trust as the sole beneficiary to
the proceeds of his Minnesota Life Insurance policy. [57-2]
at 3-4. A few weeks after David passed away, the Lipari
children claim to have entered into a “Non-Judicial
Settlement Agreement Pursuant to 760 ILCS 5/16.1(d)”
with their aunt, Carolyn Lindgren, who they say was then the
trustee.  at 18; [107-1] at 1. It states that the
parties to the agreement wish to amend the terms of the
administration of the trust, as is permitted under 760 ILCS
16.1(d)(4)(k) & (f) and §§ 11.01, 11.02, 11.08
of the Trust. [107-1] at 1. It then provides that
“effective this date, and until such time as she
resigns, becomes incapacitated or dies, Susan Lipari shall be
delegated all the powers of the position of Trustee.”
Thereafter the powers and duties of the Trustee shall revert
to Carolyn Lindgren. Id. Sullivan and D'Agnolo
challenge the authenticity of the Non-Judicial Settlement
Agreement because the Liparis neglected to mention the
document in earlier pleadings, including in the Liparis'
declaratory judgment claim that Susan is trustee.  at 7.
months after David's death and after this litigation had
commenced, Sullivan signed a “Trustee Resignation Under
the David M. Lipari Trust Agreement, ” which stated
that she had not acted as trustee thus far, nor did she
intend to act as trustee in the future, and she confirmed
that she “do[es] not accept the appointment as trustee
under the trust and, if [she is] deemed to be trustee under
the trust, [she] hereby resign[s] as trustee effective
immediately.” [107-2] at 2. Sullivan's attorney
wrote the Liparis a letter, enclosing Sullivan's
resignation, and explaining that “[f]or various reasons
not related to your aunt's relationship with you she does
not believe that it is in your best interests for her to be
the successor trustee of your father's trust.”
[107-2] at 1. Thereafter, Sullivan claims, the Liparis'
attorney solicited similar resignations from the other named
trustees in the First Amendment.  ¶¶ 9, 11.
Denise Sullivan and Loraine/Lori Diletti agreed to not act as
successor trustee, but Joe Lipari and Clorinda D'Agnolo
have neither agreed nor declined to do so. Id.
Believing that no one had been properly installed as trustee,
 ¶ 10, and due to a change of circumstances and
perspective, Linda Sullivan ...