| MARY WHITTAKER, as Successor Trustee of the Clarice Dauberman Trust, U/A dated 7/21/97, Plaintiff-Appellant, v. CAROL LEE STABLES, Indiv. Defendant-Appellee (Scott Whittaker, Intervenor- | ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court of Kane County. No. 00--CH--182 Honorable |
JUSTICE BOWMAN delivered the opinion of the court:
The parties to this case dispute the disposition of the estateof Clarice Dauberman, who died February 16, 1999. At issue iswhether a document, handwritten by Dauberman and delivered to herdaughter after Dauberman's death, amended the terms of her trust. The trial court found that it did not and granted summary judgmentin favor of defendant, Carol Lee Stables. Plaintiff, MaryWhittaker (Mary), and intervenor, Scott Whittaker (Scott), appeal. We reverse and remand.
BACKGROUND
Dauberman changed the distribution of her estate several timesduring her life. A 1988 will divided her estate equally betweenher two children, Stables and Andrew Whittaker. Shortly after thedeath of her son in 1990, Dauberman prepared a new will leaving 75%of her estate to Stables and 25% to her grandson Scott, AndrewWhittaker's son. Dauberman again altered her estate plan on July21, 1997, when she executed a declaration of trust and a last willand testament. The will distributed items of personal property andleft everything else to be distributed in accordance with the termsof the trust. The trust gave Dauberman the benefit of theprincipal and income during her lifetime. It also provided thatafter death expenses, $1,000 was to be paid to each of her fourgrandsons, with the remainder distributed to Stables. Threegrandsons were the children of Stables, and the fourth grandson wasScott.
Dauberman was named the original trustee. After her death,her husband, Earl Dauberman, who was designated first successortrustee, declined to serve. The responsibility then went toStables and Mary (Dauberman's daughter-in-law), and they were namedco-trustees and co-executors. Stables distributed the estateaccording to the 1997 will and trust.
According to Mary's deposition testimony, Dauberman draftedthe 1997 documents under pressure from Stables. Dauberman toldStables earlier in 1997 that both Stables and Scott were to receivepart of her estate. Stables became angry and said that the planput Scott ahead of her sons. Mary further testified that Stableswas also not satisfied with a will Dauberman drafted giving Stablesand each grandchild 20% of the estate. Stables threatened to neversee or speak to Dauberman again, and Stables did not returnDauberman's phone calls for many weeks. Mary believes Daubermanexecuted the 1997 documents to appease Stables. BarbaraBurgholzer, Dauberman's housekeeper/friend, also testified in herdeposition that although Dauberman loved her daughter, she was alittle bit afraid of her.
In the last year of her life, Dauberman prepared a writingand placed it in a sealed envelope addressed to Stables. She gaveit to Burgholzer with specific instructions to deliver it, afterher death, to Stables. Stables received the writing as planned. The parties to this case dispute the contents of the note. Thedocument is no longer available because Stables admittedly destroyed it.
Stables claims that the writing contained instructions for herto make sure that the July 21, 1997, will was probated. Shefurther claims she did not share the contents of the writing withanyone. Mary testified in her deposition that either she read orStables read to her all or part of the writing. Mary referred toit as a letter and testified that it said something to the effectof: "Dear Carol, I love you very much and don't want to upset you,but I want Scott to have his father's share. Love, Mom." Marythought there may have been something written after that. WhenMary was asked during her deposition if she had noticed whetherDauberman signed the letter, she replied:
"[I]t was signed something like, 'Love, Mom.' I mean, itwasn't signed 'Clarice.' This wasn't my father. My dad usedto sign his letters, 'Love, your Father, J.M. Newton.' Youknow, there aren't many people who sign their letters to theirchildren that way."
Mary testified that Stables discussed a 50-50 split between Stablesand Scott in the presence of family members. Scott also testifiedin his deposition that Stables told him he was to receive half ofDauberman's estate.
According to Mary, Stables discovered Dauberman's 1990 willwhile going through her mother's papers a few weeks after thefuneral. Mary said that Stables became very upset upon finding thewill and said, in her presence, "Why didn't mom let me read this[?]*** If she had of [sic], I wouldn't have even had to make herchange anything. *** Mom was leaving me 75%. Scott was onlygetting 25%. I just screwed myself out of half of what I was goingto get." Stables then said she was going to give Scott only 25% ofthe residuary estate, in accordance with the 1990 will. Stableslater distributed to him 25% of a farm payment payable to thetrust.
Scott testified in his deposition that he talked with Stablesby phone about two months after Dauberman's death. At that time,Stables still discussed splitting the estate equally. However, thenext day, Stables called him and said that the deal was off, and heshould not call her again.
Mary initially filed a petition to remove Stables as co-trustee and co-executor on the grounds that Stables unilaterallydistributed the trust and estate assets to herself, withoutauthority. Scott then intervened and petitioned for declaratoryrelief, arguing that Dauberman's handwritten document constituteda valid amendment to the trust and that he was entitled to 50% ofDauberman's estate. The parties filed cross-motions for summaryjudgment, and the trial court granted summary judgment in favor ofStables. On appeal, Mary and Scott argue that the court erred in(1) holding that the note could not be a valid amendment to thetrust; (2) denying them summary judgment; and (3) granting summaryjudgment for Stables.
ANALYSIS
Summary judgment is appropriate when the pleadings,depositions, and affidavits show that there is no genuine issue asto any material fact and that the moving party is entitled tojudgment as a matter of law. 735 ILCS 5/2--1005(c) (West 2000). We review a grant of summary judgment de novo. General CasualtyInsurance Co. v. Lacey, 199 Ill. 2d 281, 284 (2002). In order todetermine whether the trial court's grant of summary judgment wasappropriate, we must examine whether the handwritten document couldhave been a valid amendment to the trust.
If a method of exercising a power to modify is described inthe trust instrument, the power can be asserted only in thatmanner. Parish v. Parish, 29 Ill. 2d 141, 149 (1963). Article Iof Dauberman's declaration of trust provides: "By signedinstruments delivered to the Trustee, during my life, I may revokethis agreement in whole or in part from time to time in anyrespect." The court's main concern in construing a trust is todetermine the intent of the creator when the instrument wasexecuted, and the court must consider the plain and ordinarymeanings of the words used. Williams v. Springfield Marine Bank,131 Ill. App. 3d 417, 419-20 (1985). The court is limited toestablishing what the creator did say rather than what the creatormeant to say. Williams, 131 Ill. App. 3d at 420. Therefore, inorder to modify the trust, Dauberman required (1) a signedinstrument; (2) delivered to the trustee; (3) during her lifetime. We discuss each of these requirements in turn.
A. Signed Instrument
In this case, Stables destroyed the writing that purportedlymodified the trust. When one destroys a written instrument of anykind and the contents of the writing become a matter of judicialinquiry between the spoliator and an innocent party, the innocentparty may establish a right founded thereon by slight evidencerather than strict proof of the writing's contents. Anderson v.Irwin, 101 Ill. 411, 416 (1882). In such a case, all presumptionsshall be taken against the spoliator. Hudson v. Hudson, 287 Ill.286, 301 (1919).
Based on Mary's recollection, Dauberman signed the document"Love, Mom." It is well established that the name used is notimportant as long as the person to whom it applies is identified asbeing the one having authority to act. Anderson v. Quinn, 65 Ill.App. 2d 193, 198 (1965). Dauberman, as creator and trustee of thetrust, clearly had authority to amend the trust "in whole or inpart from time to time in any respect." Moreover, in presumingthat the evidence is against Stables, we will assume that thewriting possessed the wording necessary for the status of a signedinstrument. Thus, we hold that Dauberman's letter satisfied the"signed instrument" requirement.
B. Delivered to the Trustee During Her Lifetime
Whether the writing was delivered to the trustee during herlifetime is a question independent of the contents of the writing. The parties do not dispute that Dauberman sealed the document in anenvelope addressed to Stables and entrusted it to Burgholzer, withspecific instructions that it be delivered to Stables afterDauberman's death. It is Stables' position that Dauberman'sactions did not effectively amend the trust. Specifically, Stablesargues that, because the letter was delivered to Burgholzer ratherthan a trustee, the delivery requirement was not satisfied. Inaddition, Stables contends that delivery did not occur duringDauberman's lifetime since the contents of the letter were notintended to take effect until after Dauberman's death. Wedisagree.
When it comes to trust agreements, there is a legalpresumption in favor of delivery. Jackson v. Pillsbury, 380 Ill.554, 577 (1942). Furthermore, manual delivery is unnecessary wherethe trustee has accepted in writing the terms and provisions of thedocument. Jackson, 380 Ill. at 577.
We note initially that this case presents a unique situationin that Dauberman both created the trust and served as trustee. However, it is this dual role that controls the outcome here. Interms of "delivery," this requirement was automatically satisfiedthe moment Dauberman created the letter. With Dauberman acting astrustee, we know of no other action required. Indeed, hadDauberman placed the letter in a drawer, for example, there wouldbe no question as to whether she had effectively amended the trust. Thus, the fact that Dauberman decided to entrust the letter to athird party rather than retain it herself is immaterial.
In line with this reasoning, it is also clear that Daubermandelivered the document, albeit to herself, "during her lifetime." Again, we are left with no other conclusion. Obviously, Daubermanwas alive at the time she wrote the letter. As a result,Dauberman's letter effectively amended the trust at the time shecreated it. The fact that Stables was not to learn of thisamendment until after Dauberman's death is of no consequence. Inlight of the record, it is conceivable that Dauberman entrusted theletter to Burgholzer in order to avoid further disharmony with herdaughter during her lifetime. Dauberman's instructions for futuredelivery of the letter to Stables evidenced an intention to amendthe trust without Stables' knowledge.
In sum, we hold that the letter created by Dauberman satisfiedthe three requirements for modifying the trust. Because Daubermaneffectively amended the trust, it was error for the court to grantsummary judgment in favor of Stables.
CONCLUSION
For the foregoing reasons, we reverse the judgment of thecircuit court of Kane County granting summary judgment to Stablesand remand the cause for further proceedings consistent with thisopinion.
Reversed and remanded.
BYRNE and KAPALA, JJ., concur.
