ILLINOIS OFFICIAL REPORTS
Appellate Court
Faville v. Burns, 2011 IL App (1st) 110335
Appellate Court ANDREW M. FAVILLE and WILLIAM A. FAVILLE, JR., Plaintiffs-
Caption Appellants, v. MARTIN H. BURNS, JR., Individually and as Trustee of
the Martin H. Burns, Sr., Trust, Defendant-Appellee.
District & No. First District, Fifth Division
Docket No. 1-11-0335
Filed September 30, 2011
Rehearing denied November 1, 2011
Held In an action alleging that plaintiffs should be deemed descendants of their
(Note: This syllabus stepmother following their adult adoption by their stepmother in
constitutes no part of determining their rights under a trust established for her by her father and
the opinion of the court seeking the removal of their stepmother’s brother as trustee of the trust
but has been prepared based on a breach of fiduciary duty and the conflict of interest arising
by the Reporter of from the fact that he was an adverse remainder beneficiary of the trust,
Decisions for the the trial court erred in relying on the amended version of section 2-4(a)
convenience of the of the Probate Act in dismissing plaintiffs’ claim that they should be
reader.)
deemed descendants for failing to state a cause of action, and the
dismissal of the count seeking the trustee’s removal was reversed where
plaintiffs’ allegations were sufficient to state a cause of action for
removal based on the conflict of interest.
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CH-3428; the
Review Hon. Kathleen M. Pantle, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Richard C. Johnson and Elizabeth A. McKillip, both of Ice Miller LLP,
Appeal of Lisle, for appellants.
George N. Vurdelja, Jr., of Harrison & Held, LLP, of Chicago, for
appellee.
Panel JUSTICE HOWSE delivered the judgment of the court, with opinion.
Presiding Justice Epstein and Justice McBride concurred in the judgment
and opinion.
OPINION
¶1 Plaintiffs Andrew Faville and William Faville filed an amended complaint for declaratory
and injunctive relief against defendant Martin Burns in the circuit court, alleging plaintiffs
should be deemed descendants of Barbara Burns Faville for purposes of determining their
rights under the terms of a trust agreement. Plaintiffs also requested the circuit court remove
defendant as trustee of the trust agreement based on a conflict of interest as an adverse
remainder beneficiary and a breach of fiduciary duty. Defendant filed a motion under section
2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)) to strike the amended
complaint. The trial court granted defendant’s motion to strike on January 5, 2011.
¶2 On appeal, plaintiffs contend the trial court erred in dismissing their claims based on a
determination that section 2-4(a) of the Illinois Probate Act of 1975 (755 ILCS 5/2-4(a)
(West 2010)), rather than section 2-4(f), applied with regard to whether plaintiffs were
Barbara’s descendants under the trust agreement. Plaintiffs also contend the trial court erred
in dismissing their claim that defendant should be removed as trustee of the trust agreement.
For the reasons that follow, we reverse the circuit court’s order and remand the cause for
further proceedings.
¶3 BACKGROUND
¶4 Barbara Faville’s father, Martin Burns, died in 1939. He left behind a “Last Will and
Testament” dated August 19, 1939, which divided his estate into three separate trusts–one
for his wife Miriam Burns, one for his son Martin Burns and one for his daughter Barbara.
After Miriam died, her trust was divided equally between Martin and Barbara. Barbara was
the sole beneficiary of the trust created for her benefit and was entitled to receive the “net
income” derived from the trust for the remainder of her life. The principal of the trust was
reserved for the remainderman. Following her death, the trust agreement outlined the
remaining corpus of the trust would pass “to her then living descendants per stirpes.”
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¶5 Barbara appointed Martin as trustee of her trust in 1978. Plaintiffs alleged that sometime
after Martin was appointed as trustee the relationship between Martin and Barbara
“deteriorated.” Before her death, Barbara requested that Martin resign as trustee. He refused
to do so. Barbara then sought to revoke her designation of Martin as successor trustee and
appoint American Bank and Trust Co. of St. Charles (American Bank) in his place on
February 16, 2009. Martin refused to transfer the trust property to American Bank. On May
5, 2009, Barbara legally adopted Andrew and William Faville, her adult stepchildren who
were in their 50s, in Florida. Andrew’s and William’s birth certificates were amended to
reflect Barbara as their adopted mother, and the brothers provided notice to Martin of their
status as adopted children. Prior to the adoptions, Martin was considered the sole
remainderman of the trust under the trust agreement’s terms.
¶6 On January 26, 2010, Barbara filed a declaratory judgment action against Martin, seeking
a declaration that she has the power under the trust agreement to remove Martin as trustee.
The complaint also sought a declaration that her adopted children, Andrew and William, are
her descendants for purposes of distributing the trust. After Barbara passed away on February
28, 2010, Andrew and William filed an amended complaint naming themselves as plaintiffs
in the declaratory judgment action. Plaintiffs sought a declaration that they were Barbara’s
“descendants” under the trust agreement. Plaintiffs also sought Martin’s removal as trustee
and a preliminary injunction barring Martin from dissipating the trust’s assets prior to
resolution of the action.
¶7 In support of their contention that Martin should be removed as trustee for good cause,
plaintiffs noted Martin has “failed to produce sufficient income and has breached his
fiduciary duties to the beneficiaries of the Trust.” Plaintiffs alleged that instead of
maximizing the investment potential of the trust assets, Martin had placed the assets in low-
yielding accounts intended to preserve the trust’s principal instead of maximizing investment
returns. Plaintiffs also alleged Martin had a conflict of interest because he considers himself
to be the sole remainderman of the trust, despite notice of Barbara’s legal adoption of
plaintiffs as her children.
¶8 Martin filed a section 2-615 motion to strike the amended complaint, alleging section 2-
4(a) of the Act provides plaintiffs should not be considered Barbara’s “descendants” for
purposes of the trust agreement because they were adopted after attaining the age of 18 and
never resided with the adopting parent before attaining the age of 18. Martin also contended
plaintiffs’ request to remove him as trustee should also be dismissed because plaintiffs had
no standing and Martin had not breached his fiduciary duties as trustee.
¶9 Plaintiffs countered in their answer to the section 2-615 motion that section 2-4(f) of the
Act, not section 2-4(a), should apply to the trust agreement because the instrument was
created before September 1, 1955. Plaintiffs alleged that under section 2-4(f) of the Act, they
should presumptively be considered Barbara’s descendants for purposes of the trust
agreement unless such a presumption could be rebutted by clear and convincing evidence.
¶ 10 The trial court granted Martin’s motion to dismiss plaintiffs’ claims, finding section 2-
4(a), not section 2-4(f), of the Act applied to the claims because it is the more specific
provision in the statute. The court also rejected plaintiffs’ contention that section 2-4(a) only
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applies in situations where there is proof of an adoption done in bad faith, i.e., where the
adult adoption was performed strictly for purposes of making the adoptee an heir. The trial
court also determined count II did not state a valid cause of action under the prudent investor
rule, finding there was no requirement the trustee produce “sufficient income” or maximize
the investment potential of the trust assets. The court also noted plaintiffs had not alleged any
facts to show Martin’s conduct amounted to an abuse of the broad discretion granted to him
under the trust agreement’s terms. Plaintiffs appeal.
¶ 11 ANALYSIS
¶ 12 A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based
on defects apparent on its face. 735 ILCS 5/2-615 (West 2010); City of Chicago v. Beretta
U.S.A. Corp., 213 Ill. 2d 351, 364 (2004). In reviewing the sufficiency of a complaint, we
construe the complaint’s allegations in the light most favorable to the plaintiff. King v. First
Capital Financial Services Corp., 215 Ill. 2d 1, 11-12 (2005). We also accept as true all well-
pleaded facts and all reasonable inferences that may be drawn from those facts. Beretta U.S.A
Corp., 213 Ill. 2d at 364. A claim should not be dismissed unless it is clearly apparent that
no set of facts can be proven that would entitle the plaintiff to recovery. Canel v. Topinka,
212 Ill. 2d 311, 318 (2004).
¶ 13 We review a trial court’s grant of a section 2-615 motion to dismiss de novo. Chandler
v. Illinois Central R.R. Co., 207 Ill. 2d 331, 349 (2003).
¶ 14 I. Probate Act
¶ 15 Plaintiffs contend the trial court erred in determining section 2-4(a), rather than section
2-4(f), of the Probate Act applied to plaintiffs’ claim when considering whether plaintiffs
could establish they were Barbara’s descendants for purposes of the trust agreement.
¶ 16 Questions of statutory interpretation are issues of law reviewed de novo. In re
Application of the County Collector, 356 Ill. App. 3d 668, 670 (2005). The primary rule in
statutory interpretation is to determine and effectuate the intent of the legislature. In re
Application of the County Collector, 356 Ill. App. 3d at 670. The best indication of
legislative intent is the language of the statute. U.S. Bank National Ass’n v. Clark, 216 Ill.
2d 334, 346 (2005).
¶ 17 Words in the statute should be construed in context and given their plain and ordinary
meaning. In re Application of the County Collector, 356 Ill. App. 3d at 670; Clark, 216 Ill.
2d at 346. We will not read into a statute any exceptions, limitations, or conditions that were
not expressed by the legislature. Hudson v. YMCA of Metropolitan Chicago, LLC, 377 Ill.
App. 3d 631, 635 (2007). Where a statute’s meaning is unclear from a reading of its
language, we may look beyond the statutory language and consider the purpose of the law,
the evils it was intended to remedy, and the legislative history of the statute. Ultsch v. Illinois
Municipal Retirement Fund, 226 Ill. 2d 169, 181 (2007).
¶ 18 A court presumes the legislature intended that two or more statutes which relate to the
same subject are to be read harmoniously so that no provisions are rendered inoperative.
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Knolls Condominium Ass’n v. Harms, 202 Ill. 2d 450, 458-59 (2002). “Even when an
apparent conflict between statutes exists, they must be construed in harmony with one
another if reasonably possible.” Knolls Condominium Ass’n, 202 Ill. 2d at 459. However, it
is a fundamental rule of statutory construction that where there exists a general statutory
provision and a specific statutory provision both relating to the same subject–either in the
same or another act–the specific provision controls and should be applied. Knolls
Condominium Ass’n, 202 Ill. 2d at 459 (citing People v. Villarreal, 152 Ill. 2d 368, 379
(1992)).
¶ 19 Section 2-4(f) of the Act provides, in relevant part:
“After September 30, 1989, a child adopted at any time before or after that date is
deemed a child born to the adopting parent for the purpose of determining the
property rights of any person under any instrument executed before September 1,
1955, unless one or more of the following conditions applies:
(1) The intent to exclude such child is demonstrated by the terms of the
instrument by clear and convincing evidence.
(2) An adopting parent of an adopted child, in the belief that the adopted child
would not take property under an instrument executed before September 1, 1955,
acted to substantially benefit such adopted child when compared to the benefits
conferred by such parent on the child or children born to the adopting parent.”
755 ILCS 5/2-4(f) (West 2010).
¶ 20 However, section 2-4(a) of the Act provides, in relevant part:
“An adopted child is a descendant of the adopting parent for purposes of inheritance
from the adopting parent and from the lineal and collateral kindred of the adopting
parent and for the purpose of determining the property rights of any person under any
instrument, unless the adopted child is adopted after attaining the age of 18 years and
the child never resided with the adopting parent before attaining the age of 18 years,
in which case the adopted child is a child of the adopting parent but is not a
descendant of the adopting parent for purposes of inheriting from the lineal or
collateral kindred of the adopting parent. *** For purposes of inheritance, the
changes made by this amendatory Act of 1997 apply to all decedents who die on or
after January 1, 1998. For the purposes of determining the property rights of any
person under any instrument, the changes made by this amendatory Act of 1997 apply
to all instruments executed on or after January 1, 1998.” 755 ILCS 5/2-4(a) (West
2010).
¶ 21 Although the trial court found section 2-4(a) is the more specific and recently passed
statute with regard to how adopted children who have already attained the age of 18 at the
time of the adoption should be treated for purposes of disposing of an estate under the
Probate Act, plaintiffs correctly note the trial court did not address whether the 1997
amendments to section 2-4(a) properly applied to plaintiffs in this case given the fact that the
trust agreement was executed before January 1, 1998. To the extent Martin contends
plaintiffs waived consideration of the issue by failing to raise it in their initial answer to
Martin’s section 2-615 motion, we note plaintiffs adequately preserved the issue by raising
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it in the trial court during the hearing below on Martin’s motion to dismiss. Contrary to
Martin’s contention, plaintiffs are not raising the issue for the first time on appeal.
¶ 22 The legislature amended section 2-4(a) in 1997, adding language providing that “unless
the adopted child is adopted after attaining the age of 18 years and the child never resided
with the adopting parent before attaining the age of 18 years, in which case the adopted child
is a child of the adopting parent but is not a descendant of the adopting parent for purposes
of inheriting from the lineal or collateral kindred of the adopting parent.” Pub. Act 90-237
(eff. Jan. 1, 1998) (amending 755 ILCS 5/2-4(a) (West 1996)). Both parties recognize the
legislative amendment was intended to codify the holding reached in Cross v. Cross, 177 Ill.
App. 3d 588, 591 (1988), where this court determined “[t]he adoption of an adult solely for
the purpose of making him an heir of an ancestor under the terms of a testamentary
instrument known and in existence at the time of the adoption is an act of subterfuge.” In
reaching its decision, the court recognized in part that the presumption in favor of adoptees
found in section 2-4(e) of the Act did not apply because “that statute concerns inheritance
rights and not powers of appointment under a trust.” (Emphasis added.) Cross, 177 Ill. App.
3d at 592.
¶ 23 The 1997 legislative amendment makes clear that “[f]or purposes of inheritance, the
changes made by this amendatory Act of 1997 apply to all decedents who die on or after
January 1, 1998.” (Emphasis added.) Pub. Act 90-237 (eff. Jan. 1, 1998) (amending 755
ILCS 5/2-4(a) (West 1996)). However, the 1997 legislative amendment to section 2-4(a) also
makes clear that “[f]or the purposes of determining the property rights of any person under
any instrument, the changes made by this amendatory Act of 1997 apply to all instruments
executed on or after January 1, 1998.” (Emphasis added.) Pub. Act 90-237 (eff. Jan. 1, 1998)
(amending 755 ILCS 5/2-4(a) (West 1996)).
¶ 24 Here, the trial court was clearly asked to determine the property rights of plaintiffs under
the terms of the trust agreement–i.e., an instrument–created in 1939. Because section 2-4(a)’s
plain language makes clear the 1997 amendments to the Act are only intended to apply “[f]or
the purposes of determining the property rights of any person under any instrument executed
on or after January 1, 1998,” we find the amended version of section 2-4(a) simply does not
apply to plaintiffs’ property-rights claims under the 1939 trust instrument’s terms.
¶ 25 Notwithstanding, Martin contends plaintiffs’ alleged rights under the trust agreement at
issue here are intended to fall under the terms “for purposes of inheritance” as used by the
legislature in section 2-4(a).
¶ 26 Although section 2-4 of the Act does not specifically define “inheritance” and
“instrument,” the legislature’s use of “inheritance” and “instrument” as completely separate
concepts in multiple places throughout section 2-4’s subsections strongly indicates it
intended the terms to have separate and distinct meanings. Moreover, the term “instrument,”
as used throughout section 2-4 of the Act, has also been interpreted by Illinois courts as a
term intended by the legislature to encompass both trust agreements and testamentary
documents. See, e.g., Altenheim German Home v. Bank of America, N.A., 376 Ill. App. 3d
26, 38-39 (2007) (“By using the broad term ‘written instruments’ [in amending section 2-4
of the Act], which encompasses both testamentary documents and trust agreements, we
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concluded that the legislature intended to change the presumption in the contexts of both
inheritance and trusts.”). It seems clear to us that the language “for purposes of inheritance”
was intended to apply only to “intestate” deaths; or, in other words, situations where the
decedent dies without making a will or instrument for the disposal of her estate after her
death.
¶ 27 Section 2-4(f) of the Act, on the other hand, creates a rebuttable presumption in favor of
including adoptees under an “instrument.” In re Estate of Roller, 377 Ill. App. 3d 572, 582
(2007). The plain language of section 2-4(f) makes clear that “a child adopted at any time
before or after that date is deemed a child born to the adopting parent for the purpose of
determining the property rights of any person under any instrument executed before
September 1, 1955,” unless either of the two exceptions noted in the subsection applies. 755
ILCS 5/2-4(f) (West 2010). Our supreme court has recognized “ ‘section 2-4(f) expands a
statutory presumption, applicable to the determination of property rights under written
instruments, that no distinction is to be drawn between adopted children and natural
offspring.’ ” (Emphasis in original.) In re Estate of Roller, 377 Ill. App. 3d at 582 (quoting
First National Bank of Chicago v. King, 165 Ill. 2d 533, 538 (1995)).
¶ 28 Although we recognize section 2-4(f) refers to a “child” being adopted rather than a
“person” or an “adult,” we note courts have recognized the legislature’s use of the term
“child” in other subsections of the Act was not meant to refer only to minors. See In re Estate
of Brittin, 279 Ill. App. 3d 512, 517 (1996) (“Considering the subject matter and context in
which the word ‘child’ is used in [the pre-1997 version of] section 2-4(a), the plain language
of the statute indicates that the legislature intended to use the word ‘child’ in its relational
sense; referring to the parent-child relationship between the adoptee and the adopting parent.
The word ‘child,’ as used here, cannot be interpreted fairly as meaning a minor, in light of
section 3 of the Adoption Act, which permits adult adoptions. *** [T]here is nothing in
section 2-4(a) indicating a distinction between the adoptee’s status as an adult or a minor at
the time of adoption with regard to the adoptee’s classification as a descendant of the
adopting parent. The only qualification set forth in the statute is that the adoptee be legally
adopted. Nothing more is required.”). Similar to the pre-amended version of section 2-4(a)
discussed in Brittin, nothing in section 2-4(f) indicates the legislature intended a distinction
between whether the adoptee was an adult or a minor at the time of adoption when
determining the adoptee’s property rights under an instrument.
¶ 29 While section 2-4(f)’s presumption in favor of including adoptees as heirs under a written
instrument may be rebutted, Martin has not alleged clear and convincing evidence to
demonstrate the terms of the trust agreement intended such a result. See 755 ILCS 5/2-4(f)
(West 2008) (“The intent to exclude such child is demonstrated by the terms of the
instrument by clear and convincing evidence.”). Nor has Martin alleged Barbara, in the belief
that plaintiffs would not take property under an instrument executed before September 1,
1955, acted to substantially benefit plaintiffs through the adoption when compared to the
benefits conferred to other children actually born to her. Accordingly, we find section 2-4(f)
is the statutory provision that should apply in this case when determining whether plaintiffs
are Barbara’s “descendants” under the terms of the trust agreement
¶ 30 Because section 2-4(a)’s plain language indicates the 1997 amendments to the Act simply
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do not apply to the 1939 trust instrument at issue in this case, we find the trial court erred in
relying on the 1997 amended version of section 2-4(a) to dismiss count I of plaintiffs’
complaint for failing to state a cause of action.
¶ 31 II. Removal of Trustee
¶ 32 Plaintiffs contend the trial court erred in dismissing count II of their complaint, which
sought the removal of Martin as trustee of Barbara’s trust and the appointment of a successor
trustee. Plaintiffs contend Martin has a conflict of interest in administering the trust as a
contingent remainderman of the trust’s principal. Plaintiffs also contend Martin should be
removed based on his violation of the prudent investor rule. In support of their contentions,
plaintiffs alleged below that “[i]nstead of maximizing the investment potential of the Trust
assets, Martin has placed the assets in low yielding accounts, thereby significantly reducing
its value.” The record reflects the investment account in which the trust assets are held pays
only an estimated 2.53% per annum.
¶ 33 A. Prudent Investor Rule
¶ 34 The prudent investor rule provides, in relevant part:
“(1) The trustee has a duty to invest and manage trust assets as a prudent investor
would considering the purposes, terms, distribution requirements, and other
circumstances of the trust. This standard requires the exercise of reasonable care,
skill, and caution and is to be applied to investments not in isolation, but in the
context of the trust portfolio as a whole and as a part of an overall investment
strategy that should incorporate risk and return objectives reasonably suitable to the
trust.
(2) No specific investment or course of action is, taken alone, prudent or
imprudent. The trustee may invest in every kind of property and type of investment,
subject to this Section. The trustee’s investment decisions and actions are to be
judged in terms of the trustee’s reasonable business judgment regarding the
anticipated effect on the trust portfolio as a whole under the facts and circumstances
prevailing at the time of the decision or action. The prudent investor rule is a test of
conduct and not of resulting performance.” 760 ILCS 5/5(1), (2) (West 2008).
¶ 35 A trustee is expected to exercise the same degree of care in managing a trust as persons
of prudence and intelligence would exercise in their own affairs. Laubner v. JP Morgan
Chase Bank, N.A., 386 Ill. App. 3d 457, 463 (2008). “The trustee must be mindful of the
beneficiaries’ interests, and the trustee cannot act inconsistently with the beneficiaries’
interests, irrespective of the trustee’s good or bad faith.” Laubner, 386 Ill. App. 3d at 464.
That said, a court will not interfere with a trustee’s exercise of discretion given to him by the
trust instrument so long as the trustee does not act in a wholly unreasonable and arbitrary
manner. Laubner, 386 Ill. App. 3d at 464.
¶ 36 The trust at issue here confers considerable discretion upon the trustee with regard to
handling the trust assets. Specifically, the trust agreement notes the trustee “shall have full
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power in their sole and uncontrolled judgment and discretion.” The trust agreement also
notes that in investing and reinvesting the trust asset, the trustee “shall not be limited by any
restrictions imposed by any rule or law or by the statutes of the State of Illinois or of any
other jurisdiction.”
¶ 37 Keeping in mind the rather broad discretion granted to the trustee under the 1939 trust
agreement, we note plaintiffs have not pled sufficient facts to establish Martin has abused
his discretion in how he has chosen to invest the trust assets. Plaintiffs suggest the fact that
the investment account in which the trust assets are held pays only an estimated 2.53% per
annum to the trust beneficiary reflects Martin has violated the prudent investor rule by
seeking to improperly preserve the trust principal for himself as a contingent remainderman
of the trust principal. As the trial court properly noted, however, nothing in the trust
document itself requires the trustee to produce a certain level of income for the beneficiary
or to maximize the investment potential of the trust assets. Moreover, the prudent investor
rule is intended to be “a test of conduct and not of resulting performance” of the trust. 760
ILCS 5/5(2) (West 2008). Plaintiffs’ claims focus solely on the resulting performance of
Martin’s investments as trustee, not his actual conduct as trustee in making those
investments.
¶ 38 Accordingly, we find the trial court did not err in finding plaintiffs failed to establish a
cause of action under the prudent investor rule. See Laubner, 386 Ill. App. 3d at 464 (“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 continue to
distribute the substantial sum of $11,500 per month to each plaintiff ***.”).
¶ 39 B. Conflict of Interest
¶ 40 Generally, a trustee owes a fiduciary duty to a trust’s beneficiaries and is obligated to
carry out the trust according to its terms and to act with the highest degree of fidelity and
utmost good faith. Dick v. Peoples Mid-Illinois Corp., 242 Ill. App. 3d 297, 303 (1993).
Further, a trustee owes a fiduciary duty to serve the interests of the beneficiaries with total
loyalty, excluding all self-interest, and is prohibited from dealing with the trust’s benefit for
his own individual benefit. Dick, 242 Ill. App. 3d at 303-04.
¶ 41 “It is a well-settled rule of law in this State that a trustee may not engage in any form of
self-dealing with the trust [citation] or place himself in a position where his interests conflict
with those of the trust beneficiaries [citation].” In re Estate of Hawley, 183 Ill. App. 3d 107,
109 (1989). However, a well-recognized exception to this rule exists where the instrument
creating the trust expressly contemplates, creates and sanctions such a conflict of interest. In
re Estate of Hawley, 183 Ill. App. 3d at 109.
¶ 42 Here, plaintiffs contend they have sufficiently stated a cause of action for removing
Martin as trustee for good cause based on an alleged conflict of interest. Specifically,
plaintiffs alleged Martin’s status as a possible contingent remainderman of the trust’s assets
creates a potential conflict of interest with other potential beneficiaries of the trust that
renders him unfit to serve as trustee. In support, plaintiffs alleged that Martin has indicated
he will refuse to acknowledge Barbara’s adoption of her stepchildren and what impact that
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may have on her trust, and that he considers himself to be the sole remainderman of the trust
principal despite notice of the adoptions. We agree.
¶ 43 Although very few cases directly address the alleged conflict presented here, our supreme
court has previously noted it is proper for a court to remove a contingent remainderman as
an appointed successor trustee due to the inherent conflict between the trustee’s contingent
interest in the trust remainder versus the interest a life beneficiary may have under the trust,
especially where the life beneficiary specifically objects to the trustee’s appointment. See
Lorenz v. Weller, 267 Ill. 230 (1915); Yates v. Yates, 255 Ill. 66, 74 (1912). Moreover,
although personal hostility between a trustee and a beneficiary is not a per se ground for
removal of the trustee, courts have recognized removal may be warranted 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.’ ” Laubner, 386 Ill.
App. 3d at 467 (quoting Rennacker v. Rennacker, 156 Ill. App. 3d 712, 715 (1987)).
¶ 44 Here, similar to Yates, Martin–a contingent remainderman of the trust principal–was
appointed as a successor trustee of Barbara’s interest in the trust after the prior trustee
resigned. Prior to her death, Barbara sought the removal of Martin as successor trustee based
in part on the fact that his status as a contingent remainderman under the trust agreement
created a conflict of interest with other potential beneficiaries of the trust, which she alleged
was evidenced by Martin’s refusal to acknowledge the legal adoption of plaintiffs as her
children. Barbara’s declaratory judgment action also alleged that the relationship between
her and Martin had “deteriorated” and that they were “estranged and rarely communicate
with one another” to the point where he should no longer act as trustee. Following Barbara’s
death, plaintiffs–as potential beneficiaries under the terms of the trust as Barbara’s legally
adopted children–continued to seek Martin’s removal based on the alleged conflict of interest
created between themselves as potential beneficiaries and Martin as a contingent
remainderman of the trust principal.
¶ 45 Based on the fact that Martin’s status as both a trustee and a contingent remainderman
of the trust could present a direct conflict of interest with other potential beneficiaries under
the trust agreement, we find plaintiffs’ allegations are sufficient to state a cause of action as
to whether Martin should be removed as trustee for good cause based on the conflict. See
Yates, 255 Ill. at 74. Accordingly, we find the trial court erred in dismissing count II of
plaintiffs’ complaint under section 2-615 of the Code.
¶ 46 CONCLUSION
¶ 47 We reverse the trial court’s dismissal order and remand the cause for further proceedings
consistent with this opinion.
¶ 48 Reversed and remanded.
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