On November 6, 2006, Bozenna Michalak, an 83-year-old Polish immigrant, created a revocable trust and funded it with her home. Her attorney reviewed and translated the entire document into Polish, and according to his testimony, Bozenna did not have diminished capacity at the time she executed the trust and understood its terms. Under the trust, Robert Kaleta would become the trustee on Bozenna’s incapacity. The trust provided for the distribution of the trust assets at Bozenna’s death to her neighbors, the Kaletas.
In January of 2007, Bozenna’s niece Jacqueline Zagorski, was alerted by the Chicago police of a potential exploitation of Bozenna’s financial affairs. Jacqueline visited Bozenna and had her name added to several of Bozenna’s bank accounts. During her visit, Jacqueline observed several conversations between Bozenna and the Kaletas but because she did not speak Polish could not understand the conversations. In June of 2007, Jacqueline visited Bozenna again because further attempts had been made on her accounts. Jacqueline applied for guardianship of Bozenna. Bozenna was evaluated by a doctor for the guardianship proceedings and was diagnosed with Alzheimer’s disease; however, the doctor did not indicate whether Bozenna had capacity in 2006 when she had executed the trust. Marcella Horan was appointed as Bozenna’s guardian ad litem. Bozenna was adjudicated a disabled adult and Jacqueline was appointed her plenary guardian.
Thereafter, Jacqueline discovered that Bozenna’s home was titled in the name of the trust and, according to Jacqueline, Bozenna indicated that she did not know any details about the trust. On Jacqueline’s motion, Marcella was reappointed as Bozenna’s guardian ad litem and ordered to conduct further investigation into Bozenna’s assets. Marcella presented a report containing interviews with nine people and ultimately advocating invalidation of Bozenna’s trust and alleging undue influence by the Kaletas. The court entered an order allowing Jacqueline to petition to amend the trust.
In 2008, Jacqueline petitioned to amend the trust and gave notice to the successor trustees and the Kaletas, alleging that Bozenna was under diminished capacity when she executed the trust. The Kaletas moved to dismiss the petition.
At trial, the Kaletas testified that: (1) they had been Bozenna’s neighbors and helped her with chores, yard work, getting around, and had invited her to spend holidays with them; and (2) they had no knowledge that Bozenna had intended to create a trust naming them as the remainder beneficiaries and that it was not until they were presented with the trust document that they knew of the trust.
Jacqueline testified that: (1) the house was a mess; (2) Bozenna called Mr. Kaleta an “old crook”; and (3) Bozenna had specifically stated that she wanted her house to go to Jacqueline. Marcella testified consistent with Jacqueline’s testimony, and indicated that at various times Bozenna seemed to have diminished capacity and that certain factors pointed to undue influence over Bozenna by the Kaletas.
The trial court granted Jacqueline’s petition to amend the trust to substitute: (1) Jacqueline as successor trustee; and (2) Bozenna’s heirs at law as beneficiaries. The trial court also granted Jacqueline permission to seek a reverse mortgage on the trust property. The Kaletas appealed.
On appeal, the Appellate Court of Illinois affirmed the trial court on the grounds that: (1) the guardian had the authority under state law to amend the trust; (2) Marcella had acted properly as guardian ad litem; (3) the procedural objections to the proceedings were without merit; (4) Marcella’s report as guardian ad litem was properly admissible over objections about hearsay in the contents of the report, and the statements in the report were not offered to prove the truth of the matter asserted, but rather to show Bozenna’s mental capacity to gift her residence to the Kaletas; (5) Jacqueline had the burden of establishing intent by a preponderance of the evidence only, a burden that she had carried; (6) there was sufficient competent evidence to support the trial court’s decision; (7) the trial court had authority to approve the reverse mortgage while the appeal was pending.