2016 wills, trusts, & probate annual seminar · 2018-03-31 · in mendelson i the second...

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Lake County Bar Association

2016 Wills, Trusts, & Probate

Annual Seminar

Case Law and Legislative Update

November 11, 2016

John P. Richtman

Jessica Duhig

Leo Delaney

Churchill, Quinn, Richtman, & Hamilton, Ltd.

2 South Whitney Street

Grayslake, Illinois 60030

847.223.1500

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New Caselaw

1. Trust Funding

Estate of Mendelson v. Mendelson, 2016 IL App (2d) 150084 (March 8, 2016) Lake Co.

A deed which is not recorded until after the death of the grantor creates a presumption of a

gift that can be rebutted by evidence “even of the slightest character.”

Facts: The decedent had four sons, one of which resided with her. In 2005 she executed a deed

placing the residence in joint tenancy with her son, Michael, who resided with her. The deed

was not recorded. There was evidence that the deed was not recorded to avoid a problem with

the senior exemption, but there was also evidence that she did not record it because she wasn’t

ready to complete the gift. Significantly, Michael did not exercise dominion and control over the

property. In 2006 she prepared a trust that divided her estate equally amongst her sons. She

executed a deed conveying the real estate into the 2006 trust. That deed was recorded. Mrs.

Mendelson also executed a will that poured over into the 2006 trust. In 2011 she executed

another trust that stated that all prior trusts were revoked. The 2011 trust left everything to

Michael.

In Mendelson I the Second District held that Mrs. Mendelson left a 100% interest in the

residence to Michael through the 2011 trust—despite the fact that the residence had never been

transferred to the trust and there was no pour over will for the 2011 trust. Her executor

petitioned for rehearing. The Second District granted the rehearing and modified its conclusion

without reversing its earlier opinion.

Issue: Is there a completed gift if the gift deed is not recorded until after the death of the grantor

and there is some evidence that the grantor did not intend to deliver the deed.

Holding and Analysis: The Appellate Court focused its analysis on the delivery of the 2005

deed. The court pointed out that a completed gift by deed requires that the deed be “signed,

sealed, and delivered.” Since the 2005 deed was unrecorded during Mrs. Mendelson’s lifetime,

there was a rebuttable presumption that the deed was delivered. However, they cited a 1995 case

that held that the presumption can be overcome with evidence, “even of the slightest character.”

There was significant evidence that indicated that Mrs. Mendelson was at least ambivalent about

delivering the deed, and therefore the presumption of delivery was overcome. The Court also

used a convoluted analysis to find that Mrs. Mendelson did not intend to distribute the residence

to Michael via the 2011 trust. Interestingly, the Court did not mention the 2006 recorded deed as

clear evidence that Mrs. Mendelson did not intend to deliver the 2005 deed.

Public Act 99-743 (S.B. 2842) was passed in response to the two decisions by the Illinois

Appellate Court in Estate of Mendelson v. Mendelson. To resolve the considerable confusion

created by these decisions, the General Assembly took action to clarify the requirements of

conveyances of real property to trustees. The result, found at 760 ILCS 5/6.5, provides that

transfer of real property to a trust requires a transfer of legal title to the trustee by a written

2016 Annual Trusts & Estates Seminar November 11, 2016

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instrument of conveyance and acceptance by the trustee. If the grantor is a trustee of the trust the

real property does not become trust property unless the instrument of conveyance is recorded in

the county in which the property is located. Public Act 99-743 takes effect on January 1, 2017.

2. Trust Construction

Estate of Agin, 2016 IL App (1st) 152362 (June 30, 2016)

“Per stirpes” language only applies when the named beneficiary predeceases the primary

beneficiary of a land trust.

Facts: The decedent, Stephen Agin, died on April 10, 2014, at age 82 without a will. He left a

widow and four children from a previous marriage. In 2001 Mr. Agin’s uncle, Michael

Yergovich, created a land trust to hold his residence. The trust provided that upon Yergovich’s

death, a 4% beneficial interest would pass to Mr. Agin, with the following language:

In the event of the death of said Michael Yergovich prior to termination of this trust or prior to

other disposition of his interest hereunder, then all interest of said Michael Yergovich shall pass

and vest, as follows, per stirpes…Stephen Agin 4%.

The trust also provided as follows:

On the death of any beneficiary his interest, except as otherwise specifically

provided, shall pass to his executor or administrator and not to his heirs at law.

Not surprisingly Mr. Agin’s widow argued that the language of the trust meant that his interest

was vested and passed according to the terms of his will, while his children argued that the “per

stirpes” wording limited the disposition to his descendants. The Probate Court found that the

decedent’s interest was vested and therefore passed as part of his estate.

Issue: Does a contingent interest in a land trust vest upon the death of the primary beneficiary

despite “per stirpes” language?

Holding and Analysis: The Appellate Court began by pointing out that when interpreting

trusts—which are construed according to the same principles as wills—the goal is to determine

the settlor’s intent. When language of a document is clear and unambiguous, a court should not

modify or create new terms. Language is ambiguous when it is reasonably susceptible to more

than one meaning. The Court noted that the dispute appeared to center on the timing of the

vesting of decedent’s interest in the trust. The children thought it should vest upon the sale of

the corpus of the trust; the Probate Court thought it vested upon the death of the primary

beneficiary. The Court held that the language of the trust clearly indicated Mr. Agin’s interest

vested when Mr. Yergovich died and they couldn’t see any reason why the “per stirpes”

language would alter that.


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3. Will Construction

In re Estate of Lello, 2016 IL App (1st) 142500.

Will that left decedent’s estate to wife and two named siblings “share and share alike in

equal shares or to the survivor or survivors of them” unambiguously created a class gift

that resulted in deceased sister’s share being distributed between the two surviving named

legates, to the exclusion of deceased sister’s children.

Facts: Albert Lello died leaving a three-page will that disposed of his property and naming his

wife Luzminda as the executor of his estate. The subject of the controversy was the dispositive

provision that left his estate:

To my sister, VIRGINIA HARRIS, to my sister, RITA SAPKO, and to my wife,

LUZMINDA R. LELLO, to share and share alike in equal shares or to the

survivor or survivors of them.”

Virginia Harris predeceased the decedent. After the will was admitted to probate, the four

children of Virginia filed a petition requesting the probate court to determine whether Virginia’s

share of the estate passed to her heirs or to Rita and Luzminda. Two days later Luzminda

renounced the will and chose to take her statutory share of the estate.

Rita, the remaining legatee, filed a motion to dismiss the children’s petition arguing that the will

created a class gift so that upon Virginia’s death, her share passed to Rita and Luzminda, the

surviving members of the class. The probate court denied the petition, finding that “the will of

Albert Lello, deceased, is hereby declared UNAMBIGUOUS as a matter of law” and further

finding that there was “no latent or patent ambiguity.”

Issue: Whether a will that left the estate to the testator’s wife and two named siblings “share and

share alike in equal shares or to the survivor or survivors of them” created a class gift that

resulted in a deceased sister’s share being distributed between the two surviving named legates

or to a deceased sister’s children.

Holding and Analysis: The Illinois Appellate Court for the First District affirmed the trial

court’s conclusion that the will language established a class gift so that upon Virginia’s death,

Rita and Luzminda were entitled to Virginia’s share of the estate. The court first considered what

constituted a class gift noting that the Illinois supreme court has held that “[a] gift to a class is

defined … as a gift of an aggregate sum to a body of persons uncertain in number at the time of

the gift, to be ascertained at a future time, and who are all to take in equal or some other definite

proportions, the share of each being dependent for its amount upon the ultimate number of

persons.” O’Connell v. Gaffney, 23 Ill. 2d 611, 616-17 (1962). The court then observed that

paragraph four of Albert’s will named three legatees. The initial presumption would be that

Albert’s bequest to each of them “was an individual gift, unless there was something additional

contained in the will to rebut that presumption.” The court found that “something additional” in

the survivorship language at the end of paragraph four, which stated that the three named

legatees were “to share and share alike in equal shares or to the survivor or survivors of them.”


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The court observed that the language in Albert’s will is “strikingly similar to the language

present in both Waugh and Carlson.” In addition, the will had been drafted by an attorney.

Therefore the court found significance not only in the actual language of the will, but also in the

words that were not used. The will did not use the terms “heirs,” “descendants,” “children,”

“issue,” “per stirpes,” or any other language that would indicate that a predeceased legatee’s

share was intended to pass to her children. The court concluded that the language in Albert’s will

had created a class gift and that upon Virginia’s death, her share of the estate passed to Rita and

Luzminda.

4. Trust Construction

Gwinn v. Gwinn, 2016 IL App (2d) 150851 (DuPage Co.)

Language giving express grant of power to make gifts of trust assets to the trustmaker’s

descendants is an implied denial of power to make gifts of assets to any other person.

Facts: Before she died, Betty Gwinn created a trust naming her husband, Kenneth, as her

successor trustee and primary beneficiary with their children as contingent beneficiaries. After

Betty died, Kenneth remarried. He then purchased a residence in Colorado with trust assets,

titling it in his second wife’s name only. The children filed a complaint against their father

arguing that Kenneth violated the trust agreement and breached his fiduciary duty by making this

exceptional gift and that they had suffered damages because the trust’s assets had been depleted.

The trial court dismissed the children’s complaint for failure to state a complaint upon which

relief could be granted (735 ILCS 5/2/615 (West 2014)).

Issue: When the trust language provides the trustee with the discretion to provide gifts to the

trustmaker’s descendants, can the trustee distribute an extraordinary gift using trust assets to any

other person?

Holding and Analysis: On appeal, the Court looked to the language of the Trust to determine

the trustee’s gifting powers. The trustmaker gave Kenneth the authority as trustee to provide for

himself as the primary beneficiary of the trust in regards to his ‘health, maintenance and support.

The trustee had no obligation to support the children from the trust while he was alive. However,

the trustee was given the power to make gifts of trust assets to the trustmaker’s descendants. The

Court clarified that this case is about an extraordinary gift. In analyzing the language of the trust,

the court found nothing that would allow defendant to make an extraordinary gifts of trust assets

to the second wife. Additionally, the court noted their interpretation is consistent with the

Restatement (Third) of Trusts § 50 cmt d(2) (2003), which explains that provisions for using

trust assets for the support and maintenance of a beneficiary do not authorize distributions in

order to enlarge the beneficiary’s personal estate or to enable him to make extraordinary gifts.

The court agreed with the children that, under the familiar principle of construction expressio

unius est exclusion alterius, the express grant of power to make gifts of assets to late wife’s

descendants is an implied denial of power to make gifts of assets to any person other than late

wife’s descendants. See Altenheim German Home v. Bank of America, N.A., 376 Ill. App. 3d 26,


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36 (2007). Viewing the complaint in the light most favorable to the children, the Court

determined that Kenneth breached his fiduciary duty by making an extraordinary gift to his

second wife of the Colorado residence. The court reversed the judgment of the circuit court and

remanded for further proceedings.

5. Powers of Attorney

Ruth Ann Alford, as the executor of the Estate of Doris E. Shelton v. Rodney I. Shelton, 2016 IL

App (3d) 140163 (August 1, 2016) Grundy Co.

A successor agent does not have fiduciary duty to the principal until the successor agent

has the power conferred to them. However, a successor agent has a duty to report a breach by his predecessor agent.

Facts: In 2005 Thomas and Doris, husband and wife, executed a powers of attorney for property

naming each other as agent and their son Rodney as first successor agent. Thomas and Doris

owned a farm together. On December 1, 2011, Thomas executed quitclaim deeds conveying his

and Doris’s interest in the farm to Rodney and Rodney’s wife. At the time of the transaction,

Doris was incompetent. Thomas conveyed Doris’s interest in the farm as attorney-in-fact under

Doris’s power of attorney. After both parents passed away, their daughter and executor of their

estates, Ruth Ann, filed a citation seeking the return of her parents’ farm to her mother’s estate.

She used two theories, one on behalf of Thomas’s estate and one on behalf of Doris’s estate.

First, Ruth Ann alleged that the conveyance was presumptively fraudulent because it occurred

while Rodney was named as the successor power of attorney under their father’s Illinois

Statutory Short Form Power of Attorney for Property (POA), and while their mother, their

father’s primary agent, was incompetent. Therefore, a transfer to Rodney was presumptively

fraudulent because he was a fiduciary for Thomas. Second, Ruth Ann alleged that Rodney also

breached his fiduciary to his mother by participating in an action counter to Doris’s best interests

which would be a violation of section 2-10.3(b) of the Illinois Power of Attorney Act (Act) (755

ILCS 45/2-10.3(b) (West 2010). The defendant moved to dismiss the complaint and the motion

was granted.

Issue: Whether a successor agent under a POA has a fiduciary duty to the principal before he or

she becomes the acting agent by virtue of being named a successor agent in the POA?

Holding and Analysis: On appeal, the Court stated that Illinois courts have held repeatedly that

an appointed agent under a POA has a fiduciary duty to the principal as a matter of law from the

time the POA is executed, regardless of whether or when he exercises his powers under the POA.

See, e.g., Estate of Elias, 408 Ill. App. 3d at 320. Rodney’s designation and power to act as his

father’s agent under the POA, would be triggered if, and only if, the designated attorney-in-fact

(the parties’ mother) died, became incompetent, or refused to accept the agency. Until any of

those events occurred, Rodney would not become agent. Although there was an allegation that

Doris was incompetent at the time of the conveyance of the farm, there had not been a

declaration by a court or a doctor. Instead, Ruth Ann relied on a physician’s certification that

Doris was incompetent at the time of the transfer, but the physician created the certification two

after Doris’s death. The court concluded that a physician's certification of incompetency had to


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be rendered prior to the conveyance, and that Doris's incompetency could not establish

retroactively for purposes of creating a duty as successor agent.

As to the allegation that Rodney breached his fiduciary to his mother, the court looked at Section

2-10.3 of the Power of Attorney which provides as father:

An agent is not liable for the actions of another agent, including a predecessor agent, unless the

agent participates in or conceals a breach of fiduciary duty committed by the other agent. An

agent who has knowledge of a breach or imminent breach of fiduciary duty by another agent

must notify the principal and, if the principal is incapacitated, take whatever actions may be

reasonably appropriate in the circumstances to safeguard the principal’s best interest. 755 ILCS

45/2-10.3(b).

Despite Rodney’s arguments to the contrary, the Court held that the duty imposed by 10.3(b)

applies to successor agents and the duty is clearly stated. Consequently, the trial court erred in

dismissing the citation sought by Doris’s estate.

6. Probate - disclaimers

Estate of Sterba, 2016 IL App (3d) 150483 (July 7, 2016) Grundy Co.

A disclaimer is invalid if it makes any attempt to direct the disposition of the subject

property.

Facts: Catherine Sterba died on January 10, 2013, leaving a quarter interest in her estate to her

son, Jason. After the will was admitted to probate, Jason filed a ‘Disclaimer’ that included

language that stated that he “does hereby disclaim his specific interest so that Sheila Dearth shall

take the shares which Jason Dearth would have received but for this disclaimer.” Sheila was one

of his three siblings. Three months later, Jason filed bankruptcy. The bankruptcy trustee argued

that the document was not a valid disclaimer, rather it was voidable as a fraudulent transfer to

Sheila. The probate court agreed.

Issue: Can a disclaimer direct the subject property to a particular person?

Holding and Analysis: Execution of a disclaimer causes the interest to pass as if the person

making the disclaimer predeceased the decedent. The Appellate Court pointed out that the

Probate Act provides that the right to disclaim property “shall be barred by an assignment,

conveyance, encumbrance, pledge, sale or other transfer of the property…by the disclaimant or

his representative.” 755 ILCS 5/2-7(e). They also noted that the Illinois Supreme Court has held

that the legislature intended section 2-7(e) to bar disclaimer whenever a devisee, before

disclaiming, has dealt with the property in a manner which is inconsistent with a complete

renunciation of any interest in or power over the property. The Court held that the mere fact that

Jason titled his document as “Disclaimer” did not determine the nature of the instrument. The

language of the instrument clearly indicated he was attempting to assign his interest to Sheila

which is inconsistent with the disclaimer statute.


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7. Probate Pleading

Estate of Yanni, 2015 IL App (2d) 150108 (November 4, 2015) Kane Co.

A Citation for Recovery of Assets requires pleading sufficient to state a cause of action.

Facts: Patricia Yanni was adjudicated a disabled person. Patricia had a daughter, Kristin, and a

son, Richard. Kristin’s petition for guardianship included an allegation that Richard lived in

Patricia’s home and had neglected her. Patricia had been removed from her residence and placed

in a nursing home. Kristin was appointed guardian of the person and the Kane County Public

Guardian was appointed to be guardian of the estate. During the proceedings the GAL met with

Patricia and found her to be “oriented to time and space.” Patricia consented to the guardianship

if Kristin would be guardian and also expressed displeasure with Richard because he deeded her

house to himself without her consent. The Public Guardian petitioned for a citation to recover the

amount that Patricia had invested in the house. The petition was based on the legal theory that

Richard had taken the funds Patricia invested in the house by conversion. The evidence showed

that Richard had lived with Patricia since she bought the house in 2004 and through a series of

refinances and title transfers had gained title to the residence with his wife to the exclusion of

Patricia. The court imposed a constructive trust on the value of the residence in an amount equal

to what Patricia had invested in the property and entered punitive damages against Richard to the

extent that he had any remaining interest in the property.

Issue: Does a Citation for Recovery of Assets require the petitioner to state a cause of action.

Holding and Analysis: The Appellate Court held that the probate court should have granted

Richard’s 2-615 motion because the Guardian could not state a cause of action for conversion

since the case involved real estate, not money. Simply put, you cannot have a conversion of

funds if no funds are taken. The only thing that changed was Patricia’s interest in real property,

an interest that was not converted into funds. An action for conversion does not lie for real

property. The Court noted, “A cause of action for conversion requires: 1) the unauthorized and

wrongful assumption of control, dominion, or ownership by the defendant over the personal

property of another; 2) the plaintiff’s right in the property; 3) the plaintiff’s absolute and

unconditional right to immediate possession of the property; and 4) a demand for possession of

the property.” The Court also held that the Guardian failed to state a cause of action for undue

influence because she did not allege all the required elements.

8. Probate Pleading - Claims

Craig v. Zink, 2016 IL App (4th) 150939 (September 27, 2016) McLean Co.

An affirmative defense to a claim brought against an estate should be evaluated under

more relaxed standards than the strict pleading requirements of the Code of Civil

Procedure.


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Facts: A decedent’s estate was opened and a claim was filed against the estate. The estate filed a

motion to dismiss the claim. The claimant filed a response to the estate’s motion to dismiss under

section 2-615 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-615 (West 2014)). The

trial court found the estate’s affirmative defenses were insufficient as a matter of law and entered

an order striking with prejudice the estate’s affirmative defenses against the claim. The estate

appealed, arguing the trial court erred by applying the wrong legal standard to evaluate the

sufficiency of its pleadings.

Issue: Did the trial court err by evaluating the pleadings under the strict pleading requirements of

the Civil Code (see 735 ILCS 5/2-613, 2-608 (West 2014)) rather than the more relaxed pleading

standards typically applied during probate proceedings?

Holding and Analysis: First, the Court looked to the Probate Act, Section 1-6 of the Probate Act

(755 ILCS 5/1-6 (West 2014)) provides: “The Civil Practice Law [(Article II of the Civil Code)]

and all existing and future amendments and modifications thereof and the Supreme Court Rules

now or hereafter adopted in relation to that Law shall apply to all proceedings under this Act,

except as otherwise provided in this Act.” The plain language of section 1-6 suggests claims and

affirmative defenses of claims must be pleaded within the strictures of the Civil Code. However,

after reviewing case law the Court found such an interpretation would create an unjust result.

The Court followed Sarron, 317 Ill. App. 3d at 404, 736 N.E.2d at 134. In Sarron, the estate

raised a statute-of-limitations defense to a claim for the first time in a posttrial motion. Id. The

claimant, asserted the estate’s affirmative defense was forfeited, as the Civil Code required an

affirmative defense to be set forth in the reply to a claim. Sarron, 317 Ill. App. 3d at 404, 736

N.E.2d at 135. The court disagreed, finding: “It has long been the law in Illinois *** that

pleadings under the Probate Act are more relaxed in form than pleadings under the Civil Practice

Law. The proceedings in a probate court for the presentation and allowance of claims are not

governed by the technical rules that apply to formal suits at law. [Citation.] Because no formal

pleadings are required in the probate court, the statute of limitations applies even though not

specially pleaded. [Citations.]” Id. The court agreed with Sarron, to the extent it suggests

pleadings filed as part of a probate proceeding, including a reply to a claim raising an affirmative

defense, should be evaluated under more relaxed standards than pleadings in a formal suit at law.

The Court found an estate must be given a degree of latitude in replying to that claim. A relaxed

pleading standard facilitates the early settlement of an estate while assuring a court has the

ability to scrutinize the claim and defenses. To avoid an unjust result, the Court found the

legislature intended the pleadings to be evaluated under more relaxed standards than pleadings in

a formal suit at law. The Fourth District Appellate Court reversed the trial court’s judgment

evaluating the Estate’s pleadings under the Civil Code and remanded.


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9. Slayer Statute

Estate of Opalinska, 2015 IL App (1st) 143407 (November 5, 2015)

Slayer Statute does not bar heir from inheriting even though murderer might indirectly

benefit.

Facts: On June 8, 2007, Irene Opalinska was murdered. Darota Opalinska Chaban was Irene’s

daughter and Darota was married to William Chaban. William was convicted of murdering Irene

and Darota was convicted of perjury and obstruction of justice in relation to the murder

investigation. The Public Administrator was appointed administrator of Irene’s estate and not

surprisingly petitioned to exclude Darota pursuant to the Slayer Statute because William would

indirectly benefit and because Darota had unclean hands. The trial court held that William was

barred, but not Darota.

Issue: Does Slayer Statute bar daughter from inheriting from mother who was murdered by

daughter’s husband?

Holding and Analysis: The so-called Slayer Statute (755 ILCS 5/2-6) bars distribution to an

heir/legatee who causes the death of the decedent. The person causing the death is treated as if

he or she predeceased the victim. Two recent decisions expanded the persons who could be

barred. In Estate of Vallerius, 259 Ill. App. 3d 350 (1994), two brothers murdered their

grandmother. Shortly after the murder their mother died. She was the grandmother’s sole heir,

so the brothers were in a position to indirectly inherit from their victim. The Appellate Court in

that case held that the Slayer Statute barred the brothers from indirectly inheriting from their

grandmother because they were treated as having predeceased their victim. The present

Appellate Court found that the holding in Vallerius did not bar Darota’s share. William caused

the death, so he would be treated as having predeceased, but she would not. The Court also

reviewed Estate of Mueller, 275 Ill. App 3d 128 (1995), in which a woman murdered her

husband and the husband’s will left his estate to the wife’s minor children as contingent

beneficiaries. The wife had been released from jail and was guardian for her children. The wife

was barred by the Slayer Statute because “there was a danger that she could partake in the

estate’s property through the children.” The present Court distinguished Mueller because the

wife/mother would control the inheritance of her minor children. Here there was no reason to

think that William would control the inheritance, although he might partake in it. More

importantly, the Court acknowledged that the reasoning in Vallerius and Mueller was

questionable. “If we were to prohibit all instances of where the murdering party might

eventually receive some indirect benefit from the inheritance, we question just how far this

concept might reach.” Vallerius and Mueller depended more on specific fact patterns than a

coherent legal theory, and the Court decided it was time to dial it back, thus they held that Darota

could inherit from her mother.


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10. Trust Preparation – Attorney-Client Privilege

Eizenga v. Unity Christian School of Fulton, Illinois, 2016 IL App (3d) 150519 (May 6, 2016)

Whiteside Co.

The attorney-client privilege continues after death of the client except in cases involving

testamentary issues and that includes trusts as well as wills.

Facts: Walter Westendorf created a trust on August 27, 1997. He had no wife or children so the

trust benefited some friends and charities. All of his estate planning work was done by attorney

Russell Holesinger. Westendorf amended the trust many times over the years, each time

increasing the amount left to a school that Holesinger was closely tied to. The seventh and final

amendment left virtually the entire trust estate to the school. The trustee filed an interpleader

because he knew of Holesinger’s connection to the school and alleged that he had unduly

influenced Westendorf. Holesinger refused to turnover Westendorf’s estate planning file on the

basis that it was protected by the attorney client privilege. The court disagreed and found him in

contempt.

Issue: Whether attorney-client privilege applies to an attorney’s trust planning file when the trust

is challenged.

Holding and Analysis: The Appellate Court acknowledged that attorney-client privilege applies

to estate planning files and that the privilege survives the client. However, an exception has been

recognized in testamentary contexts. While an attorney-client communication might be

privileged if offered by a third party claimant, when the contest is between heirs or next of kin of

the testator the rule is otherwise. Previously the exception had only applied to will contests; it

had never been applied in a trust context. Noting that the purpose of the exception was intended

to ensure he decedent’s donative intent was carried out, the Court could find no reason why it

should not be applied to trusts.

11. Guardianship

Estate of Chase McHenry, 2016 IL App (3d) 140913 (August 26, 2016)

Probate court has broad discretion in selecting guardian for a disabled adult when there

are multiple qualified choices.

Facts: Mother and Father married in 1990 and lived in Florida. They had two children, Kaitlin

and Chase. Mother and Father separated in 1997 and Mother and the two children moved to

Peoria, where she had family. Father remained in Florida. Shortly thereafter it was determined

that Chase had autism. When Mother and Father’s divorce was finalized in 2001, they entered

into a joint parenting agreement, which gave Mother custody of the children and Father

visitation. When Chase approached age 18, Mother petitioned for guardianship and father cross-

petitioned for co-guardianship. By this time Chase was a senior in high school and employed.

He was happy in Peoria. Before trial the parents agreed co-guardianship was not a workable


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solution. After a three-day trial the probate court appointed Mother guardian and Father

appealed.

Issue: Is there abuse of discretion in choosing guardian under the facts presented?

Holding and Analysis: The Appellate Court began by pointing out that review of an

appointment of a guardian is subject to an abuse of discretion standard of review on appeal. A

guardianship should be utilized only as is necessary to promote the well-being of the disabled

person; to protect that person from neglect, exploitation, of abuse; and to encourage the

development of that person’s maximum self-reliance and independence. 755 ILCS 5/11a-3(b).

In selecting the guardian, the trial court shall give due consideration to the preferences of the

disabled person but is not bound by that preference. The primary consideration is the best

interest and well-being of the disabled person. Some of the factors the probate court may

consider in making that determination include: 1) the degree of relationship between the disabled

person and the proposed guardian; 2) the recommendations of persons with familial ties to the

disabled person; 3) conduct of the disabled person prior to the adjudication demonstrating trust

or confidence in the proposed guardian; 4) prior conduct by the proposed guardian indicating a

concern for the well-being of the disabled person; 5) the ability of the proposed guardian to

manage the disabled person’s estate; and 6) the extent to which the proposed guardian is

committed to discharging any responsibilities which might conflict with his or her duties as a

guardian. The appellate court concluded that each parent was well qualified to serve as guardian

and each parent had a plan for Chase’s future, but the probate court did not abuse it’s discretion

by selecting Mother as the sole guardian.

12. Standing of Beneficiary of Testamentary Trust

Estate of Zivin, 2015 IL App (1st) 150606 (December 17, 2015)

A beneficiary of a trust has standing to bring an action on behalf of the trust in limited

circumstances such as when the trustee is unavailable or wrongfully refusing to act.

Facts: In 1983 Israel and Alma Zivin executed a document entitled “Mutual Last Will and

Testament.” Shortly thereafter Israel passed away. A joint and mutual will is a single instrument

that has been jointly executed by two or more persons with a mutual and reciprocal provision and

in which the bequests are made in consideration of each other. Because the mutual consideration

makes it a contract, it cannot be modified after one of the makers dies. In 2004 Alma executed a

new will. The primary asset of her estate was a $600k residence. Hebrew University of

Jerusalem was a beneficiary of a testamentary trust under the first will, but not included under

Alma’s will. The probate court denied the university’s claim because it lacked standing; only the

trustee could bring the claim.

Issue: Does a beneficiary have standing to sue on behalf of a trust?

Holding and Analysis: The Appellate Court began by identifying the “hallmarks” of a joint and

mutual will: 1) usually labeled as joint and mutual; 2) include reciprocal provisions that dispose


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of the entire estate in favor of each other; 3) pool their interests into a common corpus; 4) have a

common dispositive scheme for the joint property; and 5) use plural pronouns and terms.

Despite reviewing the hallmarks of a joint and mutual will, the court declined to evaluate the

Zivin will. Instead, it addressed the standing issue. The court acknowledged that normally a

beneficiary does not have standing to bring a claim on behalf of the trust. However, there is an

exception for situations when the trustee is unavailable or wrongfully refusing to act. The court

pointed out that the defendant has the burden of pleading and proving a lack of standing. In the

instant case, it was unclear why the named trustee, Chase Bank, had not asserted the claim on

behalf of the university. The court found that there were material issues regarding standing that

were unresolved by the probate court. The case was remanded for an evidentiary hearing on the

standing issue.

13. Trusts- powers of appointment

BMO Harris Bank N.A. v. Towers, 2015 IL App (1st) 133351.

Limited testamentary powers of appointment are not valid where the appointed property is

commingled with outside assets and has the potential to be used to benefit a party outside

out the designated class of beneficiaries.

Facts: Plaintiff, a bank, as trustee of two trusts, filed a petition seeking instructions from the

court regarding the validity of the exercise of the testamentary powers of appointment by a

beneficiary. The two trusts, created by beneficiary’s parents, were to be administered for the

benefit of their son during his lifetime. Each trust granted the beneficiary limited testamentary

powers of appointment. Under the terms of the trusts, the beneficiary could appoint assets to or

in further trust for his spouse, beneficiary’s lineal descendants and their spouses, or any

charitable organization. If the powers of appointment were not effectively exercised, then

distributions would be made to beneficiary’s descendants at the time of his death. Using his Will

and Revocable Trust as conduit, the beneficiary attempted to exercise his powers of appointment

and convey the trust assets to his spouse and several of his children. The defendants,

beneficiary’s children, filed a counter petition against the bank, alleging that the beneficiary’s

exercise of his powers of appointment was valid. Another defendant, beneficiary’s omitted

daughter, moved for partial summary judgment in her favor stating the exercise of the power of

appointment was void. The trial court granted defendant daughter’s partial motion for summary

judgment.

Issues: Is a power of appointment impermissibly exercised where the appointed property is

commingled with other assets which could be used to benefit a party outside the class of

designated beneficiaries?

Analysis: On appeal, the court looked to the language of the trusts. The plain language

controlling the powers of appointment for both trusts establishes that the beneficiary could not

exercise the powers of appointment in favor of himself because he was not within the class of

permissible beneficiaries designated by his parents. Yet, the plain terms of the beneficiary’s will

and trust agreement provided that the assets from his parents’ trusts would be commingled with

the assets of his original trust and then his trustee would pay “all debts” that were payable as a


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result of the beneficiary’s death from the original trust. No language in the beneficiary’s trust

agreement segregated the assets from his parents’ trusts from the assets of his trust, and the

beneficiary’s creditors could have used the commingled assets to satisfy the beneficiary’s debts.

Thus, the Court concluded that the beneficiary blended his own property with the appointed

property. The appellate court held that the beneficiary’s exercise of his limited testamentary

powers of appointment in favor of himself were ineffective and therefore void because he was

not a permissible appointee. Accordingly, the appellate court affirmed the trial court’s instruction

to the Bank to distribute the appointed property per stirpes to the beneficiary’s four children who

were living at the time of his death, in compliance with the terms of the parent’s trusts in the

event the powers of appointment were not effectively exercised.

14. Negligent Interference with the Right to Possession of a Decedent’s Body

Cochran v. Securitas Sec. Serv. USA, Inc., 2016 IL App (4th) 150791 (August 3, 2016)

A plaintiff alleging an action for negligent interference with the right to possession of a

decedent’s body only needs to plead ordinary negligence by the defendant, not willful and

wanton conduct.

Facts: Plaintiff brought a cause of action against defendant alleging interference with her right to

possession of the remains of her deceased son. The plaintiff alleged that the defendant

mislabeled the remains and mistakenly provided the remains to a funeral home. Under the false

assumption they received the correct remains from the defendant, the funeral home cremated the

decedent’s remains. Plaintiff did not authorized cremation. Plaintiff asserted defendant had a

duty not to interfere with her right to possession of her son’s body, but violated that duty by

mislabeling the remains. Defendant moved to to dismiss plaintiff’s complaint. Under section 2-

615, defendant argued dismissal was merited because plaintiff failed to plead willful and wanton

conduct by defendant. The trial court granted defendant’s motion and plaintiff appealed.

Issues: Can a plaintiff maintain a suit for negligent interference with the right to possession of a

decedent’s body by pleading ordinary negligence, rather than willful and wanton negligence?

Analysis: On appeal, plaintiff argued the trial court erred in finding that she failed to allege

sufficient facts as she presented a claim where defendant breached his duty. Conversely,

defendant asserted the plaintiff was required, but was unable to, plead that defendant willfully

and wantonly interfered with plaintiff’s right to possession of a decedent’s remains. First, the

Court examined the authoritative case Mesinger, which held, a plaintiff must demonstrate the

defendant’s interference was willful and wanton. Mensinger v. O’Hara, 189 Ill. App. 48 (1914).

However, the Court declined to follow Mesinger, reasoning the law in this area has evolved since

the Mesinger decision. The Court looked at the parallels between claims for negligent infliction

of mental distress and interference with the next of kin’s right to possession of a decedent’s

remains. At the time of Mesinger, the general rule for negligent infliction of mental distress was

that there can be no recovery “in the absence of some contemporaneous physical impact.” Now,

a plaintiff who is a direct victim of a defendant’s negligence may bring a cause of action for

negligent infliction of emotional distress without demonstrating a physical injury or impact. See


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Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 346, (1995). Akin to the expansion of

negligent infliction of emotional distress, the Court reasoned the law concerning interference

with the next of kin’s right to possession of a decedent’s remains has similarly evolved to be

more encompassing of claims and is not limited to defendant’s acting willfully and wantonly.

Additionally, although not an authority, the court looked to Section 868 of the Second

Restatement, stating: “[o]ne who intentionally, recklessly or negligently removes, withholds,

mutilates or operates upon the body of a dead person or prevents its proper interment or

cremation is subject to liability to a member of the family of the deceased who is entitled to the

disposition of the body.” (Emphases added.) Restatement (Second) of Torts § 868 (1979). Thus,

the Fourth District Appellate Court recognized an ordinary negligence cause of action arising out

of the next of kin’s right to possession of a decedent’s remains. The trial court’s judgment was

reversed and remanded.

15. Medical-battery claim

Fiala v. Bickford Senior Living Group, LLC, 2015 IL App (2d) 150067

Medical-battery claim based on complete lack of consent does not require a Section 2-622

reviewing physician's affidavit and report.

Facts: Plaintiff, who had previously been a resident at a long-term-care facility for 10 months,

filed an action including medical-battery claim, against the defendant-doctor. Plaintiff's medical

chart indicated that use of Paxil was prohibited, but plaintiff alleged that the defendant

prescribed it and had staff administer Paxil to him. The defendant moved to dismiss the claim

arguing that plaintiff had not filed the required health-professional’s report pursuant to section 2-

622 of the Code of Civil Procedure (735 ILCS 5/2-622 (West 2014)). Plaintiff argued that he was

not required to file a health-care professional’s report pursuant to section 2-622(a)(1), because

section 2-622 does not apply to a medical-battery claim based on a complete lack of consent. The

circuit court dismissed plaintiff’s medical-battery claim.

Issue: Does section 2-622 of the Code of Civil Procedure apply to a medical battery claim that is

based on complete lack of consent?

Holding and Analysis: On appeal, the court reviews Section 2-622 of the Code. Section 2-622

requires the plaintiff to file with the complaint an affidavit of merit that states that the affiant has

consulted with a health professional who, after reviewing the medical records and other relevant

material, has determined in a written report that there is a reasonable and meritorious cause for

filing the action. 735 ILCS 5/2-622(a)(1) (West 2014). The plaintiff is to attach a copy of the

report to the affidavit, and the medical report must identify the plaintiff and the reasons why the

professional believes there to be a reasonable and meritorious cause of action. Here, the

Appellate court found that the plaintiff was not required to file a report pursuant to section 2-

622(a)(1). The court concentrated on the fact that the plaintiff alleged only that he did not

consent to the administration of any medications for any reason unless he or his authorized

representatives gave prior consent to it. By alleging a lack of consent rather than a deviation


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from consent given, plaintiff remains outside of the requirements of section 2-622. Thus, the

court held that the trial court erred in dismissing the claim.

16. Health Care Services Lien Act

McKim v. Southern Illinois Hospital Services, 2016 IL App (5th) 140405 (August 26, 2016)

Medicare and Medicare Part D and Medicaid bills should not be included within the

statutory 40% limitation of the Health Care Services Lien Act.

Facts: The defendant, a hospital, appealed from the trial court's order adjudicating liens and

distributing the settlement proceeds. The Health Care Services Lien Act limits the total amount

of medical liens to 40% of the settlement or verdict. The defendant contends that the trial court

improperly included Medicare, Medicare Part D, and Medicaid "liens" in the total amount of

liens subject to the 40% cap mandated by the Health Care Services Lien Act. Because the court

allowed 100% reimbursement of the Medicare and Medicaid bills, the defendant’s

reimbursement was substantially decreased.

Issues: At issue is whether bills owed to Medicare, Medicare Part D, and Medicaid can be

included in the 40% cap under the Health Care Services Lien Act?

Holding and Analysis: The Court first turned to the relevant sections of the Health Care

Services Lien Act. The Health Care Services Lien Act creates a statutory lien for providers in

two defined categories. One category being health care professionals, which is is defined as “any

individual in any of the following license categories: licensed physician, licensed dentist,

licensed optometrist, licensed naprapath, licensed clinical psychologist, or licensed physical

therapist.” 770 ILCS 23/5 (West 2012). The other category being, a “health care provider” is

defined as “any entity in any of the following license categories: licensed hospital, licensed home

health agency, licensed ambulatory surgical treatment center, licensed long-term care facilities,

or licensed emergency medical services personnel.” Id. Here, it is clear the defendant, a hospital,

is a health care provider as defined in The Health Care Services Lien Act.

The Appellate Court emphasizes that, the trial court by including Medicare, Medicare Part D,

and Medicaid in the 40% limit established by the Health Care Services Lien Act for health care

professionals and providers, the trial court implicitly found that these entities were either health

care professionals or health care providers. Medicare, Medicare Part D, and Medicaid are not

listed in the definition of health care provider of health care professional and the statutory

definitions are unambiguous. A court may not ignore the plain language of a statute. The court

disagreed with the trial court’s conclusion. The Appellate Court further reasoned Medicare and

Medicaid are public agencies and do not directly provide medical care to the patient. Therefore,

the Fifth District Appellate Court found that Medicare, Medicare Part D, and Medicaid were not

subject to the Health Care Services Lien Act. Thus, the trial court erred by including Medicare,

Medicare Part D, and Medicaid in the 40% limit of the Health Care Services Lien Act.


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17. Social Security Benefits

Hill v. Colvin, No. 15-1230 (December 3, 2015) N.D. Ind

A denial of claimant's application for Social Security disability benefits will not be upheld

where the ALJ found that claimant was unbelievable, despite the record supporting

innocent explanations existed for claimant's actions.

Facts: Claimant was 56 years old, worked for more than 13 years at a steel factory, where her

duties included lifting and carrying steel sheets that weighed up to 100 pounds. The manual labor

took a toll on her body and she was unable to keep working at the factory. Plaintiff applied for

disability benefits in July 2011. An administrative law judge (ALJ) disbelieved claimant’s

testimony and denied her application for Disability Insurance Benefits and Supplemental

Security Income. Under 42 U.S.C. § 405(g), the claimant challenged the adverse credibility

finding, arguing that the ALJ improperly discredited her testimony that back and neck pain limit

her ability to stand, sit, and walk for extended periods of time.

Issues: Is there a reversible error where the ALJ denied benefits to the claimant based on

negative credibility despite the claimant’s testimony supporting explanation for the behavior?

Analysis: The decision was appealed from the United States District Court for the Northern

District of Indiana, Fort Wayne Division. The United States Court of Appeals for the Seventh

Circuit disagreed with the denial of Disability Insurance Benefits and Supplemental Security

Income. They Appellate Court reviewed the record. First, the ALJ reasoned that claimant’s

credibility was undermined because she had stopped taking narcotic pain relievers. Yet, the ALJ

ignored explanation that the claimant’s doctor was worried about the addictiveness of the pain

relievers. See SSR 96‐7P, 1996 WL 374186, at *7 (ALJs must consider “any explanations that

the individual may provide, or other information in the case record, that may explain infrequent

or irregular medical visits or failure to seek medical treatment”). The ALJ acknowledged the

plaintiff’s testimony that she could not afford to visit doctors frequently, but nonetheless found

claimant’s testimony about back pain not credible because she “did not even seek a referral to a

back specialist.” However, the claimant could not afford a specialist. See Craft v. Astrue, 539

F.3d 668, 679 (7th Cir. 2008) (ALJ should have considered claimant’s “inability to pay for

regular treatment and medicine”). Next, the ALJ reasoned that Hill was exaggerating her back

pain because she had never been diagnosed with an associated condition. The ALJ’s conclusion

is not supported by any medical evidence in the record; it amounts to the ALJ improperly

“playing doctor.” See Engstrand v. Colvin, 788 F.3d 655, 660–61 (7th Cir. 2015). The Court held

the ALJ would not have reached the same conclusion about the claimant’s credibility had she not

inappropriately “played doctor” and ignored possible explanations for Hill’s conservative

treatment. Thus, the Seventh Circuit found the ALJ’s errors were not harmless; the court

reversed and remanded for further proceedings.

Judge Posner wrote a separate concurrence to express the persistent problem with ALJ denying

social security benefits and to declare “[i]t is time the Social Security Disability Office cleaned

up its act.”


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Mental Health Case Briefs

Involuntary Administration of Medication

In re Debra B., 2016 IL App (5th) 130573.

Debra B. appealed a court order authorizing involuntary administration of psychotropic

medication. Although Debra had been presented with information regarding the medication that

the doctor proposed that she receive, the State failed to prove that she had been provided with

written information as to reasonable alternatives to medication. As such, the State had failed to

show that Debra lacked capacity to make a reasoned decision as to the medications. The court

observed that the State must prove more than the fact that a patient is mentally ill or the fact that

the patient is subject of involuntary admission because of her illness. The State must prove that

involuntary medication is appropriate by clear and convincing evidence, which requires the State

to present expert medical testimony. Here the doctor for the State testified that the medication

was appropriate because Debra was “suffering” and her ability to function had deteriorated. The

doctor’s testimony offered conclusory opinion that Debra’s condition had deteriorated and

generally described her mental illness. He did not provide examples to support these conclusions.

As such, the trial court's findings that Debra was suffering and that her ability to function had

deteriorated were against the manifest weight of evidence.

Mental Health

Thompson v. N.J., 2016 IL App (1st) 142918.

Plaintiff, a public school employee, was involved in a dismissal action brought by the State

Board of Education based on his inappropriate sexual conduct with a 17-year old student. During

the proceedings the student had told an investigator that she was receiving mental health

treatment due to the incident. Plaintiff sought a declaration that the student had waived the

confidentiality protections of section 10(a)(1) of the Mental Health Confidentiality Act by

introducing her mental condition as part of a discharge proceeding.

The court observed that the Confidentiality Act was carefully drawn to maintain the

confidentiality of mental health records except in specific circumstances. For the court to order

disclosure, it must find that the student introduced her mental condition or an aspect of the

services received for such condition as an element of her claim or defense. The “claim” at issue

was found in one of the charges brought by the Board against plaintiff in his dismissal action.

The charge alluded to the student’s mental condition was an allegation that plaintiff had violated

the CPS rule which prohibits “cruel, immoral, negligent, or criminal conduct or communication

to a student, that causes psychological or physical harm or injury to a student.” The court noted

that the Board was the party that had placed the student’s mental condition at issue when it raised

that claim. Since the student had not affirmatively placed her mental condition at issue in

plaintiff’s disciplinary proceedings, she had not waived confidentiality and the disclosure of her

mental health records was not proper.


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Involuntary Administration Of Medication

In re Sharon H., 2016 IL App (3d) 140980.

Sharon H. was the subject of petitions for involuntary admission and for involuntary

administration of medication. The court first found that two of Sharon's claims (regarding

whether there was sufficient evidence to involuntarily admit and medicate her) were moot and

not excused by any applicable exception to mootness doctrine. Sharon’s remaining claims

satisfied the public interest exception to mootness doctrine. Sharon claimed that the State

violated section 2-107.1(a-5)(1) of the Mental Health and Developmental Disabilities Code

because it did not serve the medication petition on her at least three days prior to the hearing.

Since the record showed that the medication petition was filed with the circuit court on the same

day as the admission hearing the court had no problem agreeing with her.

Sharon also argued that the circuit court violated section 2-107.1(a-5)(2) of the Code by holding

simultaneous hearings on both the admission and medication petitions. The record showed that

the court held the admission portion of the hearing first and then held the medication portion.

Since section 2-107.1(a-5)(2) allows the medication hearing to be conducted “immediately

preceding or following (an admission hearing) and may be heard by the same trier of fact or law

as in that judicial proceeding” the court found that the medication hearing was proper. Last, the

trial court order violated the Code by failing to specify in the medication order what testing it

was requiring to be conducted on Sharon. Thus, the trial court's decision ordering psychotropic

medication to be involuntarily administered was reversed.

Mental Health and Developmental Disabilities Confidentiality Act

Stuckey v. The Renaissance at Midway, 2015 IL App (1st) 143111.

Johnnie Stuckey filed a personal injury suit against a long-term care facility on behalf of a

resident injured when he was physically assaulted by another patient, who happened to be his

roommate. Stuckey sought to obtain records from the facility regarding the roommate. The

facility objected arguing that the records were protected by HIPAA, the physician-patient

privilege and the Mental Health and Developmental Disabilities Confidentiality Act. The trial

court conducted an in camera review of the records and ordered the nursing home to turn over

certain partially redacted records of about the roommate.

The appellate court examined the Confidentiality Act and found that the scope of the protection

afforded by the Act is very broad and applies to a wide range of records and communications. It

found that the documents provided at the in camera inspection fell within the very broad

definitions of the Act. It also noted that the Act contains a number of specific, narrow exceptions

whereby disclosure of records and communications without consent is permitted. After

reviewing those exceptions the court held that Stuckey failed to establish that any exception to

Act applied. As such, the trial court’s order to release records was reversed.


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New Statutes

Unclaimed Life Insurance Benefits Act.

Public Act 99-893 (H.B. 4633) applies to all policies, annuity contracts, and retained asset

accounts in force on after January 1, 2017. The Act requires each insurer to implement policies

and procedures for performing a comparison of its policies, annuity contracts, and retained asset

accounts against the United States Social Security Administration's Death Master File. If a match

is found but the beneficiaries do not file a claim within 120 days, the insurer is required to make

a good-faith effort to locate them. Failure to meet any requirement of the Act is an unfair trade

practice under the Illinois Insurance Code. Public Act 99-893 is effective on January 1, 2017.

Personal guardian

Public Act 99-821 (H.B. 5924) amends the personal guardian statute in the Probate Code. If

there is no court order to the contrary, it requires the guardian to use reasonable efforts to notify

the ward's known adult children, who have requested notification and provided contact

information, of the ward's admission to a hospital or hospice program, the ward's death, and the

arrangements for the disposition of the ward's remains. If a guardian unreasonably prevents an

adult child of the ward from visiting the ward, the court, upon a verified petition by an adult

child, may order the guardian to permit visitation between the ward and the adult child if the

court finds that the visitation is in the ward's best interests. In making its determination, the court

shall consider the standards set forth in 755 ILCS 5/11a-17(e). This Act does not apply to duly

appointed Public Guardians and the Office of State Guardian. Public Act 99-821 is effective

January 1, 2017.

Fiduciary Access to Digital Assets

Public Act 99-775 (H.B. 4648) creates the Revised Uniform Fiduciary Access to Digital Assets

Act (2015). This act provides procedures and requirements for the access and control by

guardians, executors, agents, and other fiduciaries of the digital assets of persons who are

deceased, under a legal disability, or subject to the terms of a trust. Public Act 99-775 was

effective on August 12, 2016.

Transfer of Property to Trust.

Public Act 99-743 (S.B. 2842) was passed in response to the two decisions by the Illinois

Appellate Court in Estate of Mendelson v. Mendelson. To resolve the considerable confusion

created by these decisions, the General Assembly took action to clarify the requirements of

conveyances of real property to trustees. The result, found at 760 ILCS 5/6.5, provides that

transfer of real property to a trust requires a transfer of legal title to the trustee by a written

instrument of conveyance and acceptance by the trustee. If the grantor is a trustee of the trust the


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real property does not become trust property unless the instrument of conveyance is recorded in

the county in which the property is located. Public Act 99-743 takes effect on January 1, 2017.

Land Trust Beneficiary Rights Act.

Public Act 99-609 (H.B. 4697) provides that the rights of a beneficial owner may not be

impaired in any way by the change of trustees if the identity of the trustee of a land trust has been

changed by virtue of sale, assignment, appointment, or otherwise, but the beneficial owner or

owners of the land trust remain unchanged. Provides that a change of trustees by a sale,

acquisition, or appointment governed by the Corporate Fiduciaries Act is not a bar or defense to

any court action filed by or in the name of either the previous trustee or the new trustee,

regardless of whether the court action was originally filed in a representative capacity on behalf

of the beneficial owner or owners. Public Act 99-609 is effective January 1, 2017.

Short-Term Guardian

Public Act 99-599 (H.B. 4327) provides that a parent or guardian who is a member of the Armed

Forces of the United States (and several other agencies), may appoint a short-term guardian for a

period of longer than 365 days if on active duty service. Provides that the writing appointing the

short-term guardian shall include the dates of the parent's or guardian's active duty service, and

the appointment may not exceed the term of active duty plus 30 days. It also makes

corresponding changes in the statutory appointment of short term guardian form. Public Act 99-

599 is effective January 1, 2017.

Citation on behalf of estate.

Public Act 99-497 (S.B. 163) reverses the changes made by Public Act 99-93, which had

expanded the scope of persons to whom a citation to discover or recover assets of an estate may

be issued. The Act makes three changes to section 755 ILCS 5/16-1. (1) The section had stated

that a court may order a citation to issue against any person if the petitioner believes that person

has concealed, converted, or embezzled any “assets” of the ward. The Act strikes the word

“assets.” (2) The section had stated that a court may order a citation to issue against any person

who “had” in his or her possession any personal property, books of account, papers or evidences

of debt or title to lands that belonged to the estate. The Act strikes the word “had” but leaves in a

person who currently has possession of those things. (3) The Act repeals the ability of a court to

issue a citation against a person who may be liable to the estate of a ward pursuant to any civil

cause of action. Public Act 99-497 was effective on January 29, 2016.


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