Herlehy v. Marie v. Bistersky Trust
407 Ill. App. 3d 878
| Ill. App. Ct. | 2010Background
- Marie V. Bistersky established a trust with LaGrange Bank as trustee in 1989 and amended it six times, including a 1999 sixth amendment.
- The 2002 Feldman investment form, prepared by nonattorney McNamara and approved by Marie, plus related actions, were claimed to amend the trust through direction to transfer assets to Marie's grandnephews Timothy and Michael and residuary to charities.
- Marie died in 2002; the residuary beneficiaries were the Charities listed in the trust.
- Timothy and Michael filed a complaint for trust construction and unjust enrichment against the Charities and others, alleging Breach of fiduciary duty by LaGrange Bank for not effectuating Marie’s desired amendment.
- The trial court dismissed with prejudice the claims against LaGrange Bank, granted summary judgment for the Charities invalidating the Feldman form, and denied plaintiffs’ request for attorney-fee reimbursement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Feldman form is a valid trust amendment | Herlehy argues Feldman form reflects Marie's intent and amends the trust. | LaGrange Bank argues Feldman form was drafted by a nonlawyer in violation of 2BB and thus void. | Feldman form not valid; 2BB violation voids amendment. |
| Whether LaGrange Bank owed a duty to amend or to hire an attorney | Bank failed to act on Marie’s written instructions to amend the trust. | Bank had no duty to amend; drafting was Marie’s and 2BB bars nonlawyer drafting. | No fiduciary duty to amend; dismissal proper. |
| Whether the second amended complaint states a viable claim for breach of fiduciary duty | LaGrange Bank breached by failing to ensure a valid amendment reflecting Marie’s intent. | No duty to amend or proximate cause; Feldman form invalidates claim. | Second amended complaint properly dismissed. |
| Whether plaintiffs are entitled to reimbursement of attorney fees | Attorneys’ fees should be recoverable when construction of a trust is needed. | No basis for reimbursement; Feldman form invalid and no qualifying ambiguity. | Affirmed denial of reimbursement; fees not recoverable. |
| Whether LaGrange Bank’s fee motion was timely and court had jurisdiction | N/A | Bank timely under postjudgment or collateral-jurisdiction rules. | Bank’s fee motion untimely; court lacked jurisdiction. |
Key Cases Cited
- Landheer v. Landheer, 383 Ill.App.3d 317 (2008) (nonlawyer drafting of trust amendments prohibited under 2BB)
- Whittaker v. Stables, 339 Ill.App.3d 943 (2003) (signed instrument concept for amendments)
- Eychaner v. Gross, 202 Ill.2d 228 (2002) (trust must identify beneficiaries and property)
- In re Estate of Mendelson, 298 Ill.App.3d 1 (1998) (trust construction principles)
- In re Chicago Flood Litigation, 176 Ill.2d 179 (1997) (deference in interpreting complex civil matters)