2015 IL App (1st) 150606
Ill. App. Ct.2016Background
- Alma and Israel Zivin executed a 1983 “Mutual Last Will and Testament” that, in the event both died or after the survivor’s death, directed residual assets be held by First National Bank (now Chase) as trustee in a charitable trust for Hebrew University of Jerusalem.
- Israel died in 1984 and the 1983 will was filed; Alma later executed a 2004 will that revoked prior wills, created a pour-over trust benefitting others, and omitted Hebrew University.
- Alma died in August 2013; her 2004 will was probated and coexecutors (her brother and nephew) were appointed; estate creditors and claimants faced statutory deadlines for filing claims.
- Hebrew University filed a claim on September 4, 2014, asserting it was a beneficial legatee under the 1983 joint-and-mutual will and sought ~60% of the estate per the 1983 will’s residuary allocations.
- The coexecutors moved to dismiss under 735 ILCS 5/2-619(a)(9), arguing Hebrew University lacked standing because the 1983 will named a trustee (First National/Chase) as the party to enforce trust rights; the school produced an affidavit that Chase had declined to pursue a claim.
- The trial court granted dismissal with prejudice for lack of standing; the appellate court vacated and remanded for further proceedings to resolve material factual disputes about the trustee’s availability/refusal and possible appointment of a trustee ad litem.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a purported beneficiary (Hebrew University) has standing to sue the estate to enforce a joint-and-mutual will/trust | Hebrew University: trustee (Chase) failed/refused to act to protect the trust, so beneficiary may sue or court should appoint trustee ad litem | Coexecutors: the 1983 will vests enforcement rights in the named trustee; only a trustee (or successor) has standing; lack of standing is an affirmative defense | Remanded: material factual disputes exist about trustee’s refusal/unavailability; dismissal vacated and trial court must hold evidentiary proceedings to determine standing or appointment of trustee/ad litem |
| Whether Stringer’s affidavit was sufficient to show trustee refusal/unavailability | Affidavit: attorney told Chase about the claim and deadline and was verbally told Chase would not pursue it; this shows trustee refusal/unavailability | Coexecutors: affidavit contains hearsay and does not meet the Restatement standard to bypass trustee | Held: affidavit sufficiently alleges contact and inaction to create a material factual dispute; hearsay aspect not dispositive—evidentiary hearing required |
| Whether beneficiary-only enforcement is barred by general trust law (trustee as proper plaintiff) | Hebrew University: exceptions allow beneficiary suit where trustee is unable/unwilling; exigent deadline supports exception | Coexecutors: general rule controls—trustee has statutory and common-law authority to sue on behalf of trust; beneficiary lacks standing absent narrow exceptions | Held: General rule acknowledged; but exceptions under Restatement (Third) of Trusts §107 and analogous authorities may apply—trial court must resolve factual questions on remand |
| Whether dismissal with prejudice and denial of leave to amend was proper | Hebrew University: should be allowed to present evidence or seek appointment of trustee ad litem; dismissal premature | Coexecutors: claim legally deficient because only trustee may sue; dismissal appropriate | Held: Dismissal with prejudice reversed; court remanded for evidentiary proceedings; leave to proceed via trustee or trustee ad litem to be considered on remand |
Key Cases Cited
- Curry v. Cotton, 356 Ill. 538 (discusses distinction between joint and mutual wills)
- Rauch v. Rauch, 112 Ill. App. 3d 198 (joint-and-mutual wills create enforceable contract; beneficiary rights vest at first death)
- Platz v. Walk, 3 Ill. 2d 313 (when a will is both joint and mutual on its face)
- In re Estate of Signore, 149 Ill. App. 3d 904 (analysis of factors showing intent for joint-and-mutual will)
- Ernest v. Chumley, 403 Ill. App. 3d 710 (mutual wills can render survivor’s later disposition irrevocable as to third-party beneficiaries)
- In re Estate of Schlenker, 209 Ill. 2d 456 (standing is an affirmative defense under section 2-619)
- Wisler v. McCormack, 406 N.E.2d 361 (commentary on serious consequences of contracts not to revoke wills)