NO. 4-08-0151 Filed 11/21/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
PATRICIA A. LAUBNER and PAMELA A. ) Appeal from
LARSON, ) Circuit Court of
Plaintiffs-Appellants, ) Sangamon County
v. ) No. 07CH571
JP MORGAN CHASE BANK, N.A., Trustee; )
DEBORAH B. ALLEY, Trustee; and SARAH )
A. MANGES, SUSAN A. MERTZ, KELSEY L. )
DENNIS, COURTNEY L. LARSON, KRISTIN )
A. LARSON, WILLIAM CURVIN LARSON, )
LAWSON M. MERTZ, EMILY MANGES, HALEY )
M. MANGES, and All Future Descendants ) Honorable
of WILLIAM J. ALLEY, Deceased, ) Robert J. Eggers,
Defendants-Appellees. ) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
On October 31, 2007, plaintiffs Patricia A. Laubner and
Pamela A. Larson filed an amended petition to remove codefendant
Deborah B. Alley as trustee and to modify the distributions being
made from the trusts. On November 30, 2007, defendants, co-
trustees Deborah B. Alley and JP Morgan Chase Bank, N.A., filed a
motion to dismiss. Following a hearing on January 25, 2008, the
trial court granted defendants' motion to dismiss. Plaintiffs
appealed. We affirm.
I. BACKGROUND
William J. Alley, deceased, had four daughters: Patri-
cia A. Laubner (plaintiff), Pamela A. Larson (plaintiff), Sarah
A. Manges, and Susan A. Mertz. Patricia has one child, Kelsey L.
Dennis. Pamela has three children: Courtney L. Larson, Kristin
A. Larson, and William Curvin Larson. Sarah has two children:
Emily Manges and Haley M. Manges. Susan has one child, Lawson M.
Mertz. Sometime before his death, William married Deborah B.
Alley, who would become plaintiffs' stepmother.
On March 23, 1994, William executed a trust entitled
"Irrevocable Split-Dollar Insurance Trust Agreement" (original
trust). The trust was between William (grantor) and Deborah (co-
trustee) and Bank One, Springfield (cotrustee). Bank One,
Springfield has since become JP Morgan Chase Bank, N.A. (JP
Morgan). The original trust provided that should either Deborah
or JP Morgan cease to be a trustee, Deborah could appoint another
trustee or, if she did not appoint one, the continuing trustee
could appoint a successor. When William passed away in 1996, the
principal of the original trust was divided into four separate
trusts, one for each of the four daughters.
By the direction of cotrustees Deborah and JP Morgan,
plaintiffs' trusts were further divided as follows. Patricia's
trust was divided into three trusts: (1) the Patricia Laubner
Generation Skipping Tax (GST) Exempt Trust #1, (2) the Patricia
Laubner GST Exempt Trust #2, and (3) the Patricia Laubner GST
Nonexempt Trust (Patricia's trusts). Likewise, Pamela's trust
was divided into three trusts: (1) the Pamela Larson GST Exempt
Trust #1, (2) the Pamela Larson GST Exempt Trust #2, and (3) the
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Pamela Larson GST Nonexempt Trust (Pamela's trusts). The record
does not indicate how Deborah and JP Morgan administered and/or
divided the trusts of Sarah and Susan, although we have no reason
to guess that those trusts were handled differently.
As of December 31, 2006, the value of Patricia's trust
was as follows:
Name of Trust Value of Trust
The Patricia Laubner GST
Exempt Trust #1 $1,505,291.76
The Patricia Laubner GST
Exempt Trust #2 $500,798.87
The Patricia Laubner
Nonexempt Trust $2,870,407.52
Total Value of ______________
Patricia's Trusts $4,876,498.15
As of December 31, 2006, the value of Pamela's trust
was as follows:
Name of Trust Value of Trust
The Pamela Larson GST
Exempt Trust #1 $1,517,285.77
The Pamela Larson GST
Exempt Trust #2 $508,726.91
The Pamela Larson
Nonexempt Trust $2,994.306.39
Total Value of ______________
Pamela's Trusts $5,020,319.07
Patricia's trusts and Pamela's trusts were subject to
the same distribution standard set forth in the original trust
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agreement, namely:
"During the Trust Period, the trustees shall
hold, invest, and reinvest each share so
provided as the principal of a separate trust
hereunder, collect the income therefrom and,
after deducting from said income all proper
charges and expenses, in each year pay at
least quarterly to or apply for the use of
such daughter and such daughter's issue, so
much of the net income as the trustees shall
deem advisable for the proper care, support,
maintenance or education of such daughter of
the grantor and such daughter's issue and
shall add to the principal from time to time
any balance of net income not so applied.
The trustees shall be authorized also to pay
to or apply to the use of such daughter and
her issue, at any time and from time to time,
so much of the principal of such trust (even
to the extent of wholly terminating the trus-
t) as the trustees may deem advisable for the
proper care, support, maintenance or educa-
tion of such daughter or her issue or for any
other purpose after giving such consideration
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as the trustees may deem feasible and appro-
priate to other financial resources available
for the purpose to which such payment or
application is proposed to be made. In exer-
cising their discretion with respect to the
payment or application of income or principal
pursuant to the provisions of this paragraph,
the grantor directs his trustees to bear in
mind that his primary concern is the comfort-
able maintenance and support of his daughters
during their lifetime." (Emphases added.)
Under this rather discretionary distribution standard, Deborah
and JP Morgan adopted a distribution schedule of $11,500 per
month to both Patricia and Pamela. This amounts to an annual
distribution of 3.5% of the fair market value of the trusts.
It appears some exceptions to the steady distribution
of funds existed. For example, in 2004, the trustees distributed
$54,893 in lump sum to Patricia to pay off her credit card debt
and balance owing on her vehicle. During this time, it seems
that monthly distributions to Patricia were as high as $12,500
because she purportedly fell on financial hard times due to the
loss of her husband's income. It also seems, based on an admis-
sion made in plaintiffs' complaint, that Patricia and Pamela are
reimbursed, or the trustees directly pay, for tuition, fees, and
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living expenses for plaintiffs' children, up through and includ-
ing graduate school. The complaint mentioned one instance where
the cotrustees hesitated to pay a "medical bill" for one of the
grandchildren, but it appears, based on an admission in the
complaint, that this bill was ultimately paid with the use of
trust funds.
On March 26, 2007, Patricia and Pamela's attorney,
Sarah Delano Pavlik, wrote JP Morgan to propose a change in the
established distribution plan. Attorney Pavlik noted that the
monthly distributions came solely from the nonexempt trusts. The
nonexempt trusts were subject to the GST tax, which, as of March
2007, was set at a rate of 45%. To avoid imposition of the GST
tax upon plaintiffs' deaths, Pavlik proposed that the distribu-
tions from the nonexempt trusts be calculated to liquidate the
nonexempt trusts over plaintiffs' life expectancies, resulting in
a monthly distribution of $17,769 for Patricia and $18,536 for
Pamela over approximately the next 30 years. Pavlik noted that
liquidating the nonexempt trusts of Patricia and Pamela would not
put them at risk because, in the event they should need addi-
tional funds, the assets in their exempt trusts would still be
able to provide for them. The cotrustees declined to accommodate
plaintiffs' requests as set forth in the letter.
On July 25, 2007, plaintiffs filed a petition request-
ing to convert the distribution standard of the trusts and to
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modify the trust agreement such that the funds be distributed at
a rate of 5% of the total fair market value of all of the plain-
tiffs' trusts but that the funds only be distributed from the
nonexempt trusts. Plaintiffs also requested that, in the event
of Deborah's death or incapacitation, each respective plaintiff
would become cotrustee of her own trusts and have the discretion
to appoint a new corporate cotrustee if she so desired.
On August 27, 2007, defendants filed a motion to
dismiss. On October 30, 2007, the trial court entered an order
cancelling a hearing on the matter; allowing leave to amend the
petition; and appointing a guardian ad litem (GAL) for the minor
remainder beneficiaries, i.e., Emily and Haley Manges, and future
descendants of grantor William Alley.
On October 31, 2007, plaintiffs filed the amended
petition at issue in this appeal, alleging that Deborah in
particular acted with an improper motive due to her personal
animosity toward plaintiffs. Therefore, plaintiffs requested
that the trial court remove Deborah as a trustee and appoint each
plaintiff cotrustee of her respective trusts. Plaintiffs further
alleged that both trustees breached their fiduciary duty by (1)
showing a preference for the remainder beneficiaries by preserv-
ing the principal rather than focusing on plaintiffs' comfortable
maintenance, (2) adopting arbitrary distribution standards, and
(3) wasting the assets of the trusts by unnecessarily subjecting
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plaintiffs' descendants to generation- skipping taxes. Plain-
tiffs requested that the trustees distribute income so as to
deplete the nonexempt trusts over plaintiffs' lifetimes and that
plaintiffs' attorney fees from the instant case be paid from the
nonexempt trust.
On November 30, 2007, defendants filed a motion to
dismiss, arguing that the amended complaint did not allege a
factual basis for removal of Deborah as cotrustee or for reforma-
tion of the trust. See 735 ILCS 5/2-615 (West 2007). On January
24, 2008, the GAL for the minor remainder beneficiaries joined in
defendants' motion to dismiss plaintiffs' amended complaint.
Some of the adult remainder beneficiaries of plaintiffs' trusts,
who also happen to be plaintiffs' children, Kelsey L. Dennis,
Courtney L. Larson, Kristin A. Larson, William Curvin Larson,
entered an answer in the circuit court asking that plaintiffs'
relief be granted. No adult remainder beneficiary entered a
request that the court deny plaintiffs' relief.
On January 25, 2008, the trial court held a hearing on
defendants' motion to dismiss and granted said motion. The court
endorsed the argument of cotrustees' counsel, that plaintiffs
simply failed to allege a basis for removing Deborah as trustee
or for modifying the distribution scheme. The court told plain-
tiffs they could amend their complaint, but plaintiffs did not do
so. This appeal followed.
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II. ANALYSIS
On appeal, plaintiffs appeal the dismissal under
section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615
(West 2006)) of their petition, which began as follows:
"[Plaintiffs] petition the Court (a) [to]
remove Deborah B. Alley as Trustee of the
Trusts (as defined below), (b) to appoint
Pamela A. Larson as Co-Trustee of the Pamela
Trusts (as defined below), (c) to appoint
Patricia A. Laubner as Co-Trustee of the
Patricia Trusts (as defined below), and (d)
to modify the distributions being made from
the Trusts as set forth below."
We will first address whether plaintiffs properly stated a claim
for reformation of the trust, especially as this pertains to
modifying the distribution scheme. We will then address whether
plaintiffs properly stated a claim for removing Deborah as a
trustee and appointing plaintiffs as successor trustees.
A dismissal motion under section 2-615 attacks the
legal sufficiency of the complaint. Canel v. Topinka, 212 Ill.
2d 311, 317, 818 N.E.2d 311, 317 (2004), citing Illinois Graphics
Co. v. Nickum, 159 Ill. 2d 469, 484, 639 N.E.2d 1282, 1289
(1994). A section 2-615 motion does not raise affirmative
factual defenses but alleges only defects appearing on the face
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of the complaint. Canel, 212 Ill. 2d at 317, 818 N.E.2d at 317.
In evaluating a section 2-615 dismissal, the question is whether
the allegations of the complaint, when viewed in a light most
favorable to the plaintiff, are sufficient to state a cause of
action upon which relief can be granted. Canel, 212 Ill. 2d at
317, 818 N.E.2d at 317. The trial court should dismiss the cause
of action only if it is clearly apparent that no set of facts can
be proven which will entitle the plaintiff to recovery. Canel,
212 Ill. 2d at 318, 818 N.E.2d at 317. We review dismissals
under section 2-615 de novo. Canel, 212 Ill. 2d at 318, 818
N.E.2d at 317.
However, the general policy favoring a liberal con-
struction of the pleadings as described in Canel cannot cure a
plaintiff's failure to set forth well-pleaded facts. See Teter
v. Clemens, 112 Ill. 2d 252, 256-57, 492 N.E.2d 1340, 1342
(1986). Illinois is a fact-pleading state, meaning that a
plaintiff must allege facts that are sufficient to bring his
claim within the scope of a legally recognized cause of action.
Teter, 112 Ill. 2d at 256, 492 N.E.2d at 1342. Conclusions of
law and conclusory factual allegations unsupported by specific
facts are not deemed admitted. Time Savers, Inc. V. LaSalle
Bank, 371 Ill. App. 3d 759, 767, 863 N.E.2d 1156, 1163-64 (2007).
It is often difficult to distinguish the difference between a
conclusion and an ultimate fact, and the amount of detail neces-
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sary to adequately plead a cause of action may depend upon the
circumstances of a given case. 3 R. Michael, Illinois Practice
§23.4, at 308 (1989), citing People ex rel. Fahner v. Carriage
Way West, Inc., 88 Ill. 2d 300, 307, 430 N.E.2d 1005, 1008
(1981). Courts generally adopt a stricter approach and require
more specificity in the pleadings where (1) the pleader had an
opportunity to amend the complaint and did not (3 R. Michael,
Illinois Practice §23.4, at 313 (1989), citing Knox College v.
Celotex Corp., 88 Ill. 2d 407, 421, 430 N.E.2d 976, 983 (1981)
(regarding plaintiff's failure to amend)) or (2) the cause of
action is generally disfavored or simply is such that it would
require exceptional circumstances for the plaintiff to prevail (3
R. Michael, Illinois Practice §23.4, at 311-12 (1989) (regarding
exceptional circumstances/generally disfavored causes of ac-
tion)); see also Thomas v. Hileman, 333 Ill. App. 3d 132, 136,
139, 775 N.E.2d 231, 234, 236 (2002) (where court found the
disfavored action of malicious prosecution pleaded with insuffi-
cient specificity).
A. Current Distribution Scheme
1. Distribution Amount
Plaintiffs pleaded that the cotrustees breached
their fiduciary duties by "arbitrarily" setting the distribution
rate at 3.5% of the principal per year, resulting in payments of
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$11,500 per month for each plaintiff. Plaintiffs believe that a
distribution scheme that amounts annually to only 3.5% of the
value of the principal of the trust, so that the value of the
principal is protected, thwarts William's stated purpose of
providing for the comfortable maintenance and support of his
daughters over their lifetimes and has the effect of favoring the
remainder beneficiaries over plaintiffs. Plaintiffs also pleaded
that the distribution amount (i.e., $11,500 per month each) is
arbitrary because the cotrustees did not sufficiently communicate
with plaintiffs to see whether that amount would be enough to
sustain their current lifestyles.
A trustee is to exercise the same degree of care in
managing a trust as persons of prudence and intelligence exercise
in their own affairs. Durdle v. Durdle, 141 Ill. App. 3d 12,
15, 489 N.E.2d 1142, 1144 (1986). A trustee is held to a high
standard of conduct and must exercise the utmost or highest good
faith in the administration of the trust. In re Estate of
Muppavarapu, 359 Ill. App. 3d 925, 929, 836 N.E.2d 74, 77 (2005).
Acting with good faith in administering the trust means that the
trustee must act honestly and with undivided loyalty to the
trust, not merely with the standard of the workaday world but
with the most sensitive degree of honor. Rennacker v. Rennacker,
156 Ill. App. 3d 712, 715, 509 N.E.2d 798, 800 (1987). The
trustee must be mindful of the beneficiaries' interests, and the
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trustee cannot act inconsistently with the beneficiaries' inter-
ests, irrespective of the trustee's good or bad faith. Rennacke-
r, 156 Ill. App. 3d at 715, 509 N.E.2d at 800.
That being said, a court should not interfere with a
trustee's exercise of discretion given to him or her by the trust
instrument so long as the trustee does not act in a wholly
unreasonable and arbitrary manner. Chicago Title & Trust Co. v.
Chief Wash Co., 368 Ill. 146, 155, 13 N.E.2d 153, 157 (1938).
Likewise, "[w]here discretion is conferred upon the trustee with
respect to the exercise of a power, its exercise is not subject
to control by the court, except to prevent an abuse by the
trustee of his discretion." Restatement (Second) of Trusts §187,
at 402 (1959) (current through 2008). The trust instrument at
issue here confers a great deal of discretion to the trustees.
Each authorization of power in the distribution clause seems to
include the phrase, "as the trustees shall deem advisable."
We cannot say the cotrustees are acting in a "wholly
unreasonable and arbitrary" manner because they have sought to
protect the principal of the trust, especially where they con-
tinue to distribute the substantial sum of $11,500 per month to
each plaintiff, not including educational and living expenses for
plaintiffs' children. See Chicago Title, 368 Ill. at 155, 13
N.E.2d at 157. To the contrary, the cotrustees' decision to
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preserve the principal and distribute from the income of the
trust seems to be in keeping with William's stated intent:
"The trustees shall *** collect the income
[from the trusts] and, *** pay *** so much of
the net income as the trustees shall deem
advisable for the proper care, support, main-
tenance or education of such daughter *** and
shall add to the principal from time to time
any balance of net income not so applied."
From this clause, it seems clear William envisioned some sort of
preservation of the principal. In fact, William appears to have
envisioned that the income earned on the trust could potentially
exceed the amount necessary to provide for his daughters' com-
fortable support and said excess would therefore be used to grow
the principal of the trust. Simply because William authorized
depletion of the principal in the event that his daughters' needs
were not being met does not mean that the cotrustees are breach-
ing their fiduciary duty by holding off on that authorization.
Nor does it mean that the cotrustees are breaching their fidu-
ciary duty by favoring the remainder beneficiaries over plain-
tiffs.
Plaintiffs cite Northern Trust Co. v. Heuer, 202 Ill.
App. 3d 1066, 1070, 560 N.E.2d 961, 964 (1990), for the proposi-
tion that a fiduciary's duty to each beneficiary precludes it
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from favoring one party over another. In Heuer, the trustee
filed a complaint in the circuit court for construction of the
trust agreement and argued that the court interpret the trust in
a manner that was favorable to one beneficiary and detrimental to
the other. Heuer, 202 Ill. App. 3d at 1068-69, 560 N.E.2d at
962-63. The court found the trustee breached his duty of impar-
tiality in that he should not have argued for an interpretation
that favored one of the beneficiaries at the expense of the
other. Heuer, 202 Ill. App. 3d at 1072, 560 N.E.2d at 965.
Heuer involves an instance of blatant favoritism on the part of
the trustee for one beneficiary over the other.
In contrast, the cotrustees here merely adopted a
conservative and responsible distribution plan that incidentally
benefits the remaindermen by protecting the principal. We note
it can just as well be said that protecting the principal bene-
fits plaintiffs; cost of living is sure to rise, and plaintiffs
themselves state they expect to live another 30 years. The
cotrustees are not acting partially by protecting the principal
of the trust.
Plaintiffs pleaded that cotrustees have never met with
them in person to establish that $11,500 per month is a suffi-
cient amount of money to sustain their respective lifestyles.
Plaintiffs cite section 50 of the Restatement of Trusts, comment
e, for the proposition that the "trustee[s have] a duty to act in
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a reasonable manner in attempting to ascertain the beneficiary's
needs." Restatement (Third) of Trusts §50, Comment e(1), at 271
(2003). Plaintiffs argue that the trusts contain millions of
dollars to properly provide for the comfortable life of plain-
tiffs, not for preservation of the principal of the trust, and
that the current distribution rate of $11,500 per month caused
plaintiffs to lower their standard of living. However, no
requirement exists that trustees meet in person with beneficia-
ries.
More to the point, plaintiffs have not set forth any
facts to show why $11,500 per month is not enough to sustain
their respective lifestyles in a manner that is "comfortable."
Plaintiffs make no allegations of debt (aside from the credit
debt that trustees paid off), steep mortgage payments, or any
other expense that we can imagine that would result in $11,500
per month being insufficient. Without pleading facts to support
the assertion that $11,500 per month is insufficient to support a
comfortable lifestyle, said assertion is merely a conclusory
factual allegation. See Time Savers, 371 Ill. App. 3d at 767,
863 N.E.2d at 1163-64 (conclusory factual allegations are not
deemed admitted).
2. Allegation of Waste: the Nonexempt Trust
Plaintiffs complain that the cotrustees are subjecting
the trusts to waste by refusing to distribute from the nonexempt
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trust at a rate that would lead to its depletion by the end of
plaintiffs' respective lives and thereby avoid any generation-
skipping tax on the funds in the nonexempt trust. Such a deple-
tion of the nonexempt trust would lead to a distribution rate of
approximately $18,000 per month for each plaintiff. Plaintiffs
cite Warner v. Rogers, 255 Ill. App. 78, 87 (1929) (1929 WL 3388,
at 4), for the general proposition that trustees owe a duty to
remainderman to manage the trust estate so as to prevent waste.
Plaintiffs have not pleaded sufficient facts to show
the cotrustees are committing waste by failing to deplete the
nonexempt trust. The only fact that plaintiffs pleaded in
support of their claim that failing to immediately start deplet-
ing the nonexempt trust constitutes waste is that nonexempt trust
funds are currently subject to a 45% generation-skipping tax.
However, plaintiffs predict they will each live another 30 years.
The tax laws might be different at that time. The cost of living
will have risen. Plaintiffs might require expensive end-of-life
care. It seems the trustees are acting prudently at this stage,
planning ahead for the aforementioned concerns rather than
depleting the trust at a steady rate.
Plaintiffs have not set forth facts to establish a
breach of fiduciary duty, and therefore reformation of the
distribution scheme would not be appropriate. Generally, refor-
mation is appropriate only in extreme circumstances, such as
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where the trust as written actually frustrates the grantor's
intent because circumstances evolved in a manner that the grantor
could not have anticipated. Dyer v. Paddock, 395 Ill. 288, 294-
95, 70 N.E.2d 49, 52 (1946); see also In re Estate of Phelan, 375
Ill. App. 3d 875, 882, 874 N.E.2d 185, 191 (2007) (noting Illi-
nois courts' aversion to reforming trusts). Ordering the
cotrustees to adopt a distribution scheme wherein the nonexempt
trust was depleted at a rate of approximately $18,000 per month
would take away most of the discretion that William expressly
granted to the cotrustees.
B. Whether Plaintiffs Stated a Claim for Removal
Plaintiffs argue that they properly stated a claim for
removal of Deborah as cotrustee. In support of their claim to
remove Deborah, plaintiffs alleged in their petition that Deborah
acted with "improper motive" and that she improperly managed the
trusts. In regard to their claim that Deborah acted with im-
proper motive, plaintiffs set forth the following circumstances
that led them to believe that Deborah had a great deal of animos-
ity for them. Following William's death, Patricia provided the
local newspaper with family information to be used in the obitu-
ary. Apparently, Deborah felt the information was too personal
to be released to the public. Deborah did not attend the memo-
rial service for William that Patricia organized, even though
Deborah was in town on the date of the service. Also in 1996,
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more than 10 years prior to the instant action, Deborah went to
Patricia's house and accused Patricia of being responsible for
William's suicide. At a date not clear from the record, Deborah
invited all three of William's daughters except for Patricia to
her son Brayton's wedding. On at least one occasion, Deborah
denied Pamela access to visit William's ashes, which Deborah
interred in a gated community. Plaintiffs contend that Deborah
refused to communicate with them, noting that she did not reply
to a letter from Patricia dated August 18, 2003, or to the letter
from attorney Pavlik dated September 7, 2006. Plaintiffs believe
that Deborah refused to increase distributions because of this
alleged personal animosity.
A court of equity has inherent powers to remove a
trustee for breach of trust, misconduct, or disregard of his
fiduciary duties. Chicago Title, 368 Ill. at 155, 13 N.E.2d at
157. However, removal of a trustee is an extreme remedy, and
neither the court nor any party should lightly disregard the
testator's choice of trustee. See Wylie v. Bushnell, 277 Ill.
484, 505, 115 N.E. 618 (1917). Not every instance of mistake or
neglect on the trustee's part requires the removal of the truste-
e. Durdle, 141 Ill. App. 3d at 15, 489 N.E.2d at 1145. The
court should remove a trustee only if the trustee endangers the
trust fund and removal is clearly necessary to save the trust.
Durdle, 141 Ill. App. 3d at 15, 489 N.E.2d at 1145. Personal
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hostility between a trustee and a beneficiary is not a per se
ground for removal of the trustee. Rennacker, 156 Ill. App. 3d
at 715, 509 N.E.2d at 800. To remove the trustee, the hostility
must be shown to interfere with the beneficial administration of
the trust. Rennacker, 156 Ill. App. 3d at 715, 509 N.E.2d at
800, citing Wylie, 277 Ill. 484, 115 N.E. 618. Such hostility is
just one factor to consider where the "hostilities of the parties
combine with other circumstances to render removal of the trustee
essential to the interests of the beneficiary and the execution
of the trust." Rennacker, 156 Ill. App. 3d at 715, 509 N.E.2d at
800.
In dismissing plaintiffs' claim for removal of Deborah,
the trial court stated:
"The fact that they don't like their step-
mother is not sufficient to carry the day
here. If you want time to amend, I'll give
you time to amend, but you're going to have
to tell me something more than you are at
this point."
Plaintiffs did not take advantage of their opportunity to amend
the complaint. See Knox College, 88 Ill. 2d at 421, 430 N.E.2d
at 983. The cause of action itself, i.e., removal of a trustee,
generally requires extraordinary circumstances for the plaintiff
to prevail. See Durdle, 141 Ill. App. 3d at 15, 489 N.E.2d at
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1144-45 (stating removal only necessary where the fund itself is
in danger). As such, the pleadings in this case must contain a
high degree of specificity and detail. See 3 R Michael, Illinois
Practice §23.4, at 311-13 (1989).
This case is distinguishable from other cases we were
able to find regarding removal of the trustee where personal
animosity existed between the trustee and the beneficiary. For
example, in Rennacker, in addition to the hostility between the
trustee and the beneficiary, the trustee also sold the trust
residence and put the sale proceeds under his own social security
number, constituting a "questionable transaction at best."
Rennacker, 156 Ill. App. 3d at 715, 509 N.E.2d at 800.
Here, it does not appear that the alleged personal
animosity endangered the trust fund. As discussed above, there
is nothing unreasonable about the way that Deborah has been
coadministering the trust. As such, plaintiffs have not pleaded
sufficient facts to justify Deborah's removal as trustee.
Because plaintiffs have not pleaded sufficient facts to justify
Deborah's removal, they certainly have not pleaded sufficient
facts to warrant appointing themselves as successor trustees.
C. Attorney Fees
Finally, we affirm the trial court's denial of plain-
tiffs' request for attorney fees in this matter. At the trial
court's discretion, it may order that the trust pay plaintiffs'
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attorney fees where the plaintiffs' actions in bringing a lawsuit
somehow confer a benefit on the trust, but will not award fees
where plaintiffs seek personal benefits. Stein v. Scott, 252
Ill. App. 3d 611, 617, 625 N.E.2d 713, 718 (1993). Here, plain-
tiffs' claim did not benefit the trust. The court did not abuse
its discretion in declining to award attorney fees.
III. CONCLUSION
For the aforementioned reasons, we affirm the trial
court's judgment.
Affirmed.
TURNER and STEIGMANN, JJ., concur.
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