The Illinois Court of Appeals affirmed the application of the doctrine of election as a bar to beneficiary’s contest to trust amendment, where the trust operated in the same manner as a will and the beneficiary took, and refused to return, tangible personal property belonging to the trust.
Robert E. Boyar executed a pour over will and a revocable trust with the trust assets passing equally to his five children at his death. Mr. Boyar amended the trust five times to change the distribution provisions. Mr. Boyar amended the trust a sixth time to remove Northern Trust Company and his son, Robert, as co-trustees and appointed his neighbor, attorney G. Grant Dixon, as sole trustee.
Mr. Boyar died in 2010 survived by his five children, all of whom were trust beneficiaries. Robert sued to contest the sixth amendment on the grounds of lack of capacity, breach of duty by Dixon by appointing himself as trustee without the beneficiaries being able to remove him by majority vote, and undue influence by Dixon.
Robert removed personal property held under the trust from his father’s residence, and when it was challenged by Dixon, Robert claimed that pursuant to the trust terms the children had allocated the tangible personal property among themselves.
Dixon then moved to dismiss Robert’s contest to the amendment on the grounds that Robert’s claim was barred by the doctrine of election as a consequence of his accepting benefits under the trust. Dixon also counterclaims asking the court to declare that Robert had violated the trust’s no-contest clause resulting in his forfeiture of his interest in the trust.
The circuit court granted Dixon’s motion and dismissed Robert’s contest, finding that “if you take advantage of something you can’t at a later date turn around and disavow the existence of it.” The court noted that under the doctrine of election the petition should be dismissed in its entirety and that Robert could always file a petition to remove the trustee. Robert filed a motion to reconsider which was denied, and then appealed.
On appeal, the Illinois Court of Appeals affirmed the trial court on the grounds that: (1) the doctrine of election applies to a trust that is used to achieve the same effect as a will, such as the trust at issue in this case, and bars Robert’s claims; (2) the exception to the doctrine where the beneficiary does not know all of the fact including the contents of the documents and the circumstances of execution does not apply in this case; (3) the application of the doctrine in this case would not violate any law or public policy; (4) the exception to the doctrine where the beneficiary returns the property does not apply in this case because Robert was repeatedly asked to return the property and sued before returning the property; and (5) Robert’s challenge to the sixth amendment would be considered a challenge to the trust and not merely to the appointment of a trustee, regardless of the severability provision in the trust agreement.