dissenting:
Sims made her wishes clear when she created the Arizona Trust in 1991: the trustee’s discretion in making or not making disbursements from that trust was essentially unlimited. The majority has decided that either Sims could not have so intended or, if she did, she was wrong to do so. After so concluding, the majority has arrogated to itself to decide what Sims really meant, thereby disregarding what Sims wrote and reaching a conclusion that the majority finds more agreeable. I respectfully dissent.
I. THE IRREVOCABLE TRUST The Arizona Trust at issue was created in September 1991 and entitled “Irrevocable Declaration of Trust.” During the entire course of this litigation, including questioning of plaintiff at oral argument, plaintiffs position has been to concede that the Arizona Trust was irrevocable. Thus, this case presented the court with the question of the powers of the trustee of the Arizona Trust as set forth in the 1991 document creating the Arizona Trust.
Despite this procedural posture, the majority writes the following: “Assuming that the Arizona Trust was an irrevocable trust, it does not appear that Sims attempted to alter or modify that trust by her 1999 amendment to her Illinois Trust.” 367 Ill. App. 3d at 232. This phraseology betrays the majority’s unwillingness to concede what plaintiff has already conceded — the Arizona Trust was irrevocable. But, the majority states, assuming the Arizona Trust was irrevocable, the 1999 amendment to the Illinois Trust did not constitute a change in the Arizona Trust (presumably because an irrevocable trust, by definition, cannot be so modified), but, instead, merely constituted an effort by Sims to make “clear what the language of the Arizona Trust already seemed to require.” 367 Ill. App. 3d at 232. Thus, the majority creates in Illinois the doctrine of “Irrevocable Trust (Sort Of),” which means that even if a trust is irrevocable, it may be subject to “clarification” eight years after the fact to “explain” what its terms meant.
The majority is not clear regarding the scope of this new doctrine. That is, can such “clarification” occur only in subsequent trust documents, or would some other legal document (like a will) suffice? In addition, what would be the effect of a letter the settlor writes to the trustee eight years after the creation of the trust, indicating her “clarification” of the terms of the trust?
II. THE TRUSTEE’S DISCRETION
In my judgment, the key to this case is the extraordinary language Sims used in empowering the trustee of the Arizona Trust — language that literally could hardly be stronger in expressing her intent. The Arizona Trust provides that the trustee’s “discretion in making or not making disbursements of income or principal from this trust is final.” That would be a strong statement by itself, but just in case someone might have missed its significance, the trust goes on to provide that the trustee’s discretion is final “even if found arbitrary.” Again, an extraordinary statement. But just in case someone still missed its import, the trust instrument goes even further, stating that the trustee’s discretion is “final even if found unreasonable.” Then, just in case any lingering doubt could somehow exist as to the scope of the trustee’s discretion, this sentence concludes as follows: “trustee’s sole and independent judgment being the criterion upon which any disbursements are made or withheld.” An interesting exercise for the majority would be to ask: Assuming Sims in fact wished to grant the trustee essentially unlimited discretion, what additional language could she have employed to make her wishes clear?
III. THE AMBIGUITY AS TO THE PURPOSE OF THE TRUST
The majority is correct that the creation of multiple trusts in this case creates some ambiguity regarding both their purpose and their relationship to each other. However, no ambiguity exists regarding Sims’ wish as to who was empowered to resolve all such questions regarding any disbursements from the Arizona Trust: the trustee of the Arizona Trust possessed essentially unlimited discretion — that is, the trustee was to make disbursements from that trust in his sole discretion, even if someone else might find his exercise of that discretion arbitrary or unreasonable.
Last, I note that this case does not involve any reimbursement of, or claim made by, any governmental agency. Here, plenty of money was available in both trusts at all times to address all of Sims’ then-current and future needs. In fact, even after the trustee of the Arizona Trust refused to pay anything regarding Sims’ expenses before she died, the Illinois Trust (which paid all of those expenses) still contained over $60,000.