July 2013 • Volume 101 • Number 7 • Page 330
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Supreme court declines to extend doctrine of election beyond wills to trusts
The Illinois Supreme Court found the doctrine irrelevant to the facts of In re Estate of Boyar, leaving the question of whether it applies to trusts as well as wills for another day.
This spring, the Illinois Supreme Court issued its first decision in 58 years involving the "doctrine of election," a civil law that prohibits certain challenges to the validity of wills.
In a 6-1 split decision, the court's majority overruled the lower courts by holding that there was no need to extend the doctrine to apply to the trust at issue, because even if the doctrine were expanded to apply to trusts in addition to wills, it was irrelevant to the facts of In re Estate of Boyar, 2013 IL 113655.
"[W]e have not even discussed the doctrine of election in connection with a will contest for over half a century. The page is essentially blank," Justice Karmeier wrote for the majority. "For today, at least, it shall remain so."
According to the court, the doctrine of election is an "ancient" principle that was imported into equity from civil law. It prohibits a beneficiary from challenging the provisions of a will when he or she has already elected to receive benefits under those same provisions.
The supreme court found that the purpose of the equitable theory is twofold. First, it honors the testator's intent. Secondly, it protects the rights of all the other heirs who stand to benefit from the will.
"Properly understood, the doctrine of election is triggered in the context of wills only when there are two different benefits to which a person is entitled, the testator did not intend the beneficiary to take both benefits, and allowing the beneficiary to claim both would be inequitable to others having claims upon the same property or fund," Karmeier wrote.
In Boyar, the trial court summarily dismissed a beneficiary's challenge to a last-minute amendment to his father's family trust that was executed less than a month before the father died. The appellate court affirmed, finding that since the beneficiary and his siblings had already taken possession of much of their father's personal property, the beneficiary challenging the trust amendment was estopped from doing so because he had already elected to benefit from the trust.
"[T]he appellate court in this case concluded that the doctrine of election was not limited to will contests but could be extended to challenges to trusts, at least where the trust is 'used to achieve the effect of testation,'" the high court found.
The appellate court also determined that "the doctrine was triggered in this case by [the beneficiary's] acceptance of a share of Decedent's personal items, and that the exceptions to the doctrine of election were inapplicable," Karmeier wrote.
The beneficiary, on the other hand, argued the doctrine of election should not be applied generally to trusts and, in any case, it was not applicable to the facts of the Boyar case.
The supreme court agreed that the doctrine would not apply to the facts of the case if the doctrine were extended to apply to trusts, and therefore declined to even address the issue of expanding the law.
"Established principles of judicial review counsel against consideration of issues which are not essential to the disposition of the cause or where the result will not be affected regardless of how the issues are decided," the court wrote. "Even if we were to agree with the appellate court that the doctrine of election should be extended to living trusts, at least where the trust served the same purpose as a will, the appellate court's judgment could not be sustained. That is so because the elements necessary for application of the doctrine are absent in this case."
Boyar: No election for the beneficiary to make
The decedent, Robert E. Boyar, died on May 19, 2010, following a five-year battle with the onset of dementia. According to the court, decedent's health and mental stability declined rapidly in those last five years, which was exacerbated by congestive heart failure during his last year of life.
In February and March of 2010, the decedent's physician wrote letters stating that, due to the dementia and other factors, the decedent was "unable to make decisions regarding his personal and financial affairs and, thus, is considered disabled."
On April 27, 2010, about a month after the doctor's recent letter and less than a month before he died, the decedent executed a sixth and final amendment to his living trust, removing a title company and his son, Robert A. Boyar, as the trustees and appointing in that position the decedent's friend and neighbor, a lawyer named G. Grant Dixon.
The decedent's five children were unaware of the sixth amendment and, therefore, after their father's death they moved ahead pursuant to the terms of the trust and decided amongst themselves how to distribute their father's personal property.
That August, about a month after the children had completed the distribution of personal property, Dixon sent a notice to Robert informing him of the sixth amendment and the fact that Robert was no longer a trustee.
Shortly thereafter, Robert filed a petition in the circuit court of Cook County challenging the sixth amendment to the trust, insofar as it removed Robert and a trust company as co-trustees, to be replaced by a lawyer who assisted with the execution of the amendment at a time when the decedent lacked testamentary capacity.
Despite the letters from the physician, statements from nursing home workers, and other alleged evidence suggesting the decedent was unable to make such decisions at the time he executed the amendment, the trial judge granted Dixon's motion to dismiss and the appellate court affirmed.
The supreme court reversed after finding that Robert never made an "election" that would trigger the doctrine when he and his siblings doled out their father's personal property, as they were instructed to do by the trust's provisions.
"In this case, Robert was never presented with a choice between any such plurality of gifts or inconsistent or alternative rights or claims to property conferred by the trust," the court held. "Without such a choice,…there was simply no 'election' for Robert to make."
Not the right set of facts
According to DeKalb-based trusts and estates lawyer Charles G. Brown, the court made the right call in refusing to apply the doctrine of election to a case in which there was no election, and in which the beneficiary was merely contesting an administrative amendment to the trust, without raising any challenge to the substantive distributions called for in the trust's provisions.
"The court corrected a bad decision, and in that sense they did, I guess, have to take this case even though they didn't tell us much about whether the doctrine of election should apply to trusts," said Brown, who chairs the ISBA Trusts and Estates Section Council.
The lesson to be learned for estate-planning attorneys, according to Brown, is to accurately and unambiguously draft wills and trusts for clients, because the doctrine of election could possibly apply to both.
"The doctrine of election is still a valid theory of law in Illinois, and it may apply to trusts because the Boyar court did not reject that argument," Brown said. "The facts just didn't present a doctrine of election legal issue. Therefore, we'll have to wait for another day," if not another 58 years.