Supreme Court Summaries

Opinions filed April 4, 2013



In re Estate of Boyar, 2013 IL 113655

Appellate citation: 2012 IL App (1st) 111013.


      JUSTICE KARMEIER delivered the judgment of the court, with opinion.

      Chief Justice Kilbride and Justices Freeman, Thomas, Garman, and Theis concurred in the judgment and opinion.

      Justice Burke dissented, with opinion.


      This dispute about the will and trust left by a decedent comes from Cook County. Robert E. Boyar died on May 19, 2010, in a La Grange nursing home where he was suffering from dementia. His will, as to which his son Robert A. Boyer, the plaintiff and appellant here, was administrator, distributed all of the property to a trust for the benefit of decedent’s five children and his grandchildren. Under the trust, son Robert A. Boyar and a bank were to be cotrustees, but there was also a provision that a trustee could be removed by a majority of the beneficiaries. Less than a month before his demise, the decedent had executed an amendment to the trust naming a lawyer who was his friend and neighbor as trustee and providing that this designee, who is the appellee here, would not be subject to removal by any of the other trust beneficiaries.

      The trust had provided that nonbusiness tangible personal property, such as jewelry and household items, should be divided among the children pursuant to their own agreement, which they began to do about a week after the demise. Later that summer, they petitioned to have a company remove remaining personal property from the house so that it could be sold.

      In late August of 2010, the putative new trustee informed appellant, son Robert A. Boyer, of the trust amendment and demanded a personal property itemization. Appellant, however, was of the view that the amendment, although not changing the substantive dispositions made by the trust, had been orchestrated by appellee in order to permit appellee to maintain control of the trust and collect fees for so doing. Appellant filed a petition in the circuit court of Cook County on September 10, 2010, challenging the validity of the amendment which named appellee as trustee. Undue influence over a person lacking full mental capacity was claimed.

      The circuit court dismissed the petition challenging the trust amendment and the appellate court affirmed. The appellee had argued that, because of the acceptance of a portion of decedent’s personal property, appellant had no right to challenge the amended trust provision naming appellee as trustee.

      The supreme court disagreed with this result and reversed both courts below. The supreme court said that there was no need to address the question of whether the “doctrine of election” (applicable to will contests) should be extended to living trusts such as this one where the trust serves the same purpose as a will, since that doctrine could not be invoked under the circumstances here. Allowing appellant to challenge the provision changing the trustee had no impact on the substantive distribution made by the decedent. By accepting the items of personal property, appellant cannot be said to have made a “choice” which now precludes his challenge to the trust amendment.

       The dismissal of the petition challenging the trust amendment was improper, both courts below were reversed, and the cause was remanded to the circuit court for further proceedings.