Boyar v. Dixon (In re Estate of Boyar)

• Decision Date: 26 January 2012
• Docket Number: No. 1–11–1013.,1–11–1013.
• Citation: 2012 IL App (1st) 111013,964 N.E.2d 1248
• Parties: In re ESTATE OF Robert E. BOYAR, Deceased (Robert A. Boyar, Petitioner–Appellant, v. Grant Dixon, as Trustee of the Sixth Amendment to the Robert E. Boyar Trust Agreement dated January 12, 1983, Joan F. Boyar, Jeffrey W. Boyar, Ellen L. Boyar, Linda J. Graziani, Kristina Boyar, Linda J. Graziani (as parent or legal guardian to Lucas Graziani), and Joan F. Boyar (as parent or legal guardian to Marianne Boyar–Larsen), Respondents–Appellees.)
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 111013

964 N.E.2d 1248

In re ESTATE OF Robert E. BOYAR, Deceased (Robert A. Boyar, Petitioner–Appellant,

v.Grant Dixon, as Trustee of the Sixth Amendment to the Robert E. Boyar Trust Agreement dated January 12, 1983, Joan F. Boyar, Jeffrey W. Boyar, Ellen L. Boyar, Linda J. Graziani, Kristina Boyar, Linda J. Graziani (as parent or legal guardian to Lucas Graziani), and Joan F. Boyar (as parent or legal guardian to Marianne Boyar–Larsen), Respondents–Appellees.)

No. 1–11–1013.

Appellate Court of Illinois, First District, Fourth Division.

Jan. 26, 2012.

Barry A. Feinberg, Daniel J. Fumagalli, David J. Feinberg, Chuhak & Tescon, P.C., Chicago, for Appellant.

Kerry R. Peck, Timothy J. Ritchey, Peck Bloom LLC, Chicago, for Appellees.

OPINION

Justice FITZGERALD SMITH delivered the judgment of the court, with 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.

¶ 2 I. BACKGROUND

¶ 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 cotrustees of the nonmarital 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.¹

¶ 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.²

¶ 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).³ 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...