Court granted Defendant’s motion to dismiss in two cases. Plaintiff appealed both decisions and appellate court consolidated the appeals. Plaintiff and Defendant are brother and sister. The parties’ parents served as each others attorney-in-fact, and their children were designated successor agents. Before his death, their father transferred Defendant him and his wife’s farm. Plaintiff brought suit on behalf of the mother, alleging that the transaction was fraudulent because Defendant had a fiduciary duty to their father at the time of the transaction. Defendant did not have a fiduciary relationship with his father, because a successor agent is not a fiduciary agent. Physician’s report created two years after mother’s death stating that she was incompetent at the time of the transaction was insufficient to establish that Defendant had become replaced her as the father’s attorney-in-fact. Plaintiff’s second argument is that Defendant breached his fiduciary duty as his mother’s successor trustee. Court improperly dismissed this claim, because although Defendant did not owe her a fiduciary duty, successor agents may be liable for breaches of fiduciary duty committed by their predecessor. Thus, Defendant may be liable if his father breached his fiduciary duty. (CARTER and SCHMIDT concurred in part and dissented in part.)
Illinois Appellate Court
Civil Court
Trusts and Estates