Ford v. Fitzjarrell

NOTICE 2023 IL App (4th) 230127-U
This Order was filed under
FILED
November 20, 2023
Supreme Court Rule 23 and is NO. 4-23-0127
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
IN THE APPELLATE COURT Court, IL
under Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

SHAWN FORD and SHIRLEYN LAMBERTI, ) Appeal from the
Plaintiffs-Appellees, ) Circuit Court of
v. ) Greene County
GARY D. FITZJARRELL SR., Individually and as ) No. 17L1
Trustee of the Marjorie Fitzjarrell First Amended Trust
)
Agreement Dated June 26, 2008, ) Honorable
Defendant-Appellant. ) Christopher G. Perrin,
) Judge Presiding.
______________________________________________________________________________

JUSTICE HARRIS delivered the judgment of the court.
Presiding Justice DeArmond and Justice Zenoff concurred in the judgment.

ORDER

¶1 Held: The trial court erred in granting plaintiffs’ motion for partial summary judgment on
claims seeking judicial construction of a trust and declaratory judgment.

¶2 Plaintiffs, Shawn Ford and Shirleyn Lamberti, filed a multiple-count action against

defendant, Gary D. Fitzjarrell Sr., individually and as trustee of the Marjorie Fitzjarrell revocable

trust (Trust), alleging defendant misinterpreted and mismanaged the Trust, depriving plaintiffs of

their right to equitable ownership of the Trust estate. They filed a motion for summary judgment

with respect to two counts in which they a sought judicial construction of the Trust and a

declaratory judgment that identified them as Trust beneficiaries “with equal vested interests in the

class gift.” The trial court granted plaintiffs’ motion and defendant appeals, arguing the court’s

ruling was inconsistent with the unambiguous language of the Trust and plaintiffs’ claims were

“not proper” because they did not allege the Trust was ambiguous. Defendant alternatively argues
plaintiffs’ claims were barred by the doctrine of laches. We reverse and remand for further

proceedings.

¶3 I. BACKGROUND

¶4 In June 2008, Marjorie Fitzjarrell executed a first amended trust agreement,

amending and consolidating two prior trusts in her name and creating the Trust at issue. The trust

agreement identified (1) Marjorie as the grantor of the Trust, (2) defendant as Marjorie’s only

child, and (3) plaintiffs and Gary Dean Fitzjarrell II (Gary II) as Marjorie’s only grandchildren.

Additionally, both Marjorie and defendant were named as cotrustees. Trust property included farm

real estate and the following: “All financial assets, personal property and household effects

including but not limited to checking accounts, money markets, savings accounts, certificates of

deposit, stocks, bonds, titled vehicles, tools, machinery and jewelry.”

¶5 According to the trust agreement, income and principal of the Trust estate were to

be paid at Marjorie’s direction during her lifetime. However, if Marjorie were to become

incapacitated, defendant, as cotrustee, was empowered to use income and principal of the Trust

estate that he determined was “required for the needs, best interests[,] and welfare” of Marjorie

and her descendants. Upon Marjorie’s death, “all personal and household effects *** such as

jewelry, clothing, automobiles, furniture, furnishings, silver, books[,] and pictures” were to be

distributed to defendant. The trust agreement further provided for the creation of separate

generation skipping tax (GST) trusts for the benefit of Majorie’s three grandchildren. Specifically,

the trust agreement stated as follows:

“7.00 Disposition Upon Death of Grantor

***

7.02 The Grantor hereby gives the available GST Exemption Amount of trust

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property to the Trustee to allocate in shares of equal value for the Grantor’s

grandchildren ***. Allocation for the Grantor’s grandchildren under this Section

shall be subject to the GST Separate Trust provisions. When making allocations to

the GST Separate Trust and Section 7.02, the Trustee shall allocate all real estate

to the GST Separate Trust established for the benefit of the Grantor’s grandson,

[Gary II.]

***

7.50 GST Separate Trust

Any Trust property allocated for a grandchild of the Grantor’s subject to the GST

Separate Trust provisions shall be added to or used to fund the principal of three

GST Separate Trusts[:] one known as the Shawn L. Ford GST Separate Trust, one

known as the Shirleyn J. Lamberti GST Separate Trust[,] and one known as [Gary

II] GST Separate Trust. When allocating the property between these three Trusts,

all real estate held in this Trust shall be allocated to the [Gary II] GST Separate

Trust up to the allowable amount which is one-third of the total GST Exemption

Amount. Any excess real estate exceeding the funding amount for the [Gary II]

GST Separate Trust shall be distributable under the provisions of Section 7.02

above. The Trustee shall administer each GST Separate Trust as follows:

(a) The Trustee may pay as much of the income and principal to the

Grantor’s grandchild and his or her descendants, as the Trustee ***

considers necessary for the health, maintenance and reasonable comfort, or

education of each of them as the Trustee determines. The Trustee will make

the payments in equal or unequal shares, taking into account the present and

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 prospective needs of those persons. Any income not so paid in each year

shall be added to principal at the end of each year.

(b) On the death of a grandchild, the Trustee shall distribute their GST

Separate Trust to any one or more persons and organizations (other than the

creditors of the grandchildren) as the grandchild appoints by Will,

specifically referring to this power of appointment.

(c) On the death of the grandchild, The Trustee shall, subject to the GST

Separate Trust provisions, allocate the GST Separate Trust not effectively

appointed as follows:

(i) To the descendant’s [sic], per stirpes, of the Grantor’s

grandchild, or if there are none to the Grantor’s then living

descendant’s [sic], per stirpes.”

¶6 Marjorie died on April 28, 2009. At the time of her death, defendant and Marjorie’s

three grandchildren remained living. On September 21, 2009, defendant prepared a trustee’s

report, stating the only asset held in the Trust at the time of Marjorie’s death was the farm real

estate and that “[a]ll liquid assets were used to pay [for Marjorie’s] nursing home care.”

Additionally, the report stated that pursuant to the trust agreement, all real estate held in the Trust

had been allocated to the GST trust established for the benefit of Gary II.

¶7 In January 2017, plaintiffs initiated the underlying cause of action, and, in

December 2017, they filed the seven-count, first amended complaint that is at issue on appeal. Six

of the seven counts were directed against defendant. A seventh count, alleging legal malpractice

(count VII), was directed against the attorney and law firm that assisted in preparing the trust

agreement and advised defendant regarding the Trust after Marjorie’s death. The legal malpractice

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count was later dismissed, and it is not at issue on appeal.

¶8 Against defendant, plaintiffs brought claims seeking judicial construction of the

Trust (count I), alleging breach of fiduciary duty (count II), seeking the imposition of a

constructive trust (count III), alleging unjust enrichment (count IV), seeking an accounting of the

Trust (count V), and seeking a declaratory judgment (count VI). Relevant to this appeal, in count

I, plaintiffs alleged that “the four corners” of the trust agreement expressed Marjorie’s intention to

treat her grandchildren equally as “class beneficiaries *** with each grandchild to receive a benefit

equal to one third of the value of the gift to the class.” They asserted defendant unreasonably

ignored and rejected that interpretation, as well as defeated Marjorie’s intent, by distributing the

Trust estate in a way that benefited only Gary II and not plaintiffs. Plaintiffs sought judicial

construction of the Trust so that the trial court could “resolve ambiguity created or effectuated by

[defendant] *** and to direct distribution of the Trust estate.” They alleged: “There exists in the

Trust an uncertainty, that is not necessarily an ambiguity of a single term or phrase, but instead an

ambiguity of intent and meaning.” Plaintiffs asked the court to construe the Trust consistent with

their interpretation.

¶9 In count VI of their amended complaint for a declaratory judgment, plaintiffs

asserted that the trial court should interpret the Trust “to include [them] as Trust beneficiaries, and

declare [defendant] failed to fund [their] respective GST Exempt Trusts.” Plaintiffs asked the court

to enter judgment in their favor, identifying them as “Trust beneficiaries with equal vested interests

in the class gift, who, each, should have received 1/3 of the value of the distribution for the benefit

of the grandchildren into their respective GST Exempt Trusts.”

¶ 10 Initially, on defendant’s motion, the trial court dismissed five of the six counts

against defendant, including counts I and VI, finding plaintiffs’ claims were either barred by the

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relevant statute of limitations or the doctrine of laches. However, the court later reconsidered its

ruling and vacated its dismissals. In March 2019, defendant filed his answer and affirmative

defenses to plaintiffs’ amended complaint, denying plaintiffs’ claims and, again, asserting they

were barred by the relevant statute of limitations or laches.

¶ 11 In September 2022, plaintiffs filed a motion for summary judgment on counts I and

VI of their amended complaint. They argued that language within the four corners of the trust

agreement expressed Marjorie’s intention to treat each of her three grandchildren equally.

According to plaintiffs, the Trust’s language clearly gave them each a one-third interest in property

that was in the Trust at the time of Marjorie’s death, as well as a one-third interest in the income

from such property. They pointed to paragraphs 7.02 and 7.50 of the trust agreement, which they

asserted provided that, at the time of Marjorie’s death, all Trust property would be awarded to her

grandchildren up to the amount of the GST exemption and that the Trust property would be divided

equally among the three grandchildren and placed in separate GST trusts. Although they

acknowledged language in the trust agreement that required real estate to be “initially placed” in

the GST trust created for Gary II, they noted that such allocation was only “up to *** one-third of

the total GST exemption amount.” Plaintiffs argued the language utilized in paragraph 7.50

showed “that the value [of the real estate was] to be divided by thirds.”

¶ 12 Plaintiffs also argued that the trust agreement otherwise reflected Marjorie’s intent

to distribute the Trust estate equally among her grandchildren in one-third shares. They noted that

paragraph 7.01 provided that in the event defendant predeceased Marjorie, her personal and

household effects were to be distributed to defendant’s living descendants “per stirpes in equal

shares.” Plaintiffs further pointed out that the trust agreement created separate GST trusts for each

grandchild, and they argued that paragraph 2.08 of the trust agreement, which defined the phrase

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“ ‘Available GST Exemption Amount,’ ” treated all descendants equally. Finally, plaintiffs argued

that the trust agreement contained no language that indicated Marjorie had any intent to disinherit

plaintiffs or any intent to distribute the Trust estate to Gary II alone. Plaintiffs attached the trust

agreement to their motion.

¶ 13 In October 2022, defendant filed a response to plaintiffs’ motion for summary

judgment. He argued that real estate held in the Trust at the time of Marjorie’s death was properly

allocated to the GST trust created for Gary II. Relying on paragraphs 7.02 and 7.50 of the trust

agreement, defendant argued “that any real estate held by the *** Trust at the time of [Marjorie’s]

passing was initially to have been given to the GST Trust established for the benefit of [Gary II].”

He acknowledged that “if the value of the real estate exceeded one-third of the GST Exemption

Amount, the real estate exceeding that value could be allocated to the GST Trusts established for

the benefit of Plaintiffs.” However, defendant maintained that for 2009, the year Marjorie died,

relevant provisions of the United States Code set the applicable GST exemption amount at $3.5

million, one-third of which was $1,166,666.66. According to defendant, “real estate owned by the

[Trust] with a value of up to $1,166,666.66 was properly allocated solely to the GST Trust

established for the benefit of [Gary II].” He further alleged that a May 2009 appraisal report

established the value of real estate held by the Trust as $1,158,400. Defendant argued that the

entirety of that real estate was properly allocated to Gary II’s GST trust. He also asserted that

genuine issues of material fact existed as to whether any additional property was held by the Trust

at the time of Marjorie’s death, in that while plaintiffs claimed additional assets existed, the

trustee’s report he prepared near the time of Marjorie’s death showed the Trust held no assets other

than real estate.

¶ 14 Defendant also noted that he had previously moved to dismiss plaintiffs’ amended

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complaint, arguing that count I failed to state a claim upon which relief could be granted because

plaintiffs did not identify any ambiguity in the trust agreement and that both counts I and VI were

barred by the doctrine of laches. He stated he was readopting and reincorporating those arguments

into his response. To his response, defendant attached relevant portions of the United States Code,

excerpts of Gary II’s discovery deposition, and the May 2009 appraisal report.

¶ 15 In December 2022, the trial court entered a written order, granting plaintiffs’

motion for summary judgment as to counts I and VI. It cited case authority for the proposition that

“[w]hen the language of [a] document is clear, the court should not modify the document or create

new terms. See Northern Trust Co. v. Tarre, 86 Ill. 2d 441, 450, 427 N.E.2d 1217, 1221 (1981).”

The court then held that the language of the trust agreement “indicate[d] that [Marjorie] intended

for the property of the Trust to be divided equally among her grandchildren upon her death, and

not solely for the benefit of [Gary II].” It ordered that (1) plaintiffs and Gary II were “Trust

beneficiaries with equal vested interests in the class gift and each should have received one-third

of the value of the distribution for the benefit of the grandchildren into their respective GST

Exempt Trusts,” (2) the trustee take all necessary actions to establish the three separate GST trusts

“using all property of the trust at the time of [Marjorie’s] death, dividing the property equally

among the three trusts for each grandchild,” and (3) the trustee distribute all future income from

the Trust to all Trust beneficiaries in equal one-third shares.

¶ 16 In January 2023, defendant filed a motion asking the trial court to enter a special

finding pursuant to Illinois Supreme Court Rule 304(a) (eff. March 8, 2016) that there was no just

reason for delaying enforcement or appeal of the court’s order granting summary judgment in

plaintiffs’ favor as to counts I and VI. The same month, the court granted defendants’ motion and

entered the requested Rule 304(a) finding.

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¶ 17 This appeal followed.

¶ 18 II. ANALYSIS

¶ 19 On appeal, defendant argues the trial court erred by granting summary judgment in

plaintiffs’ favor as to counts I and VI of their amended complaint and directing that Trust property

be divided equally among the three GST trusts established for the benefit of plaintiffs and Gary II.

He contends the record contains no evidence that Marjorie’s trust owned any property other than

real estate at the time of her death and, pursuant to the unambiguous language of the trust

agreement, such real estate had to be allocated only to the GST trust established for the benefit of

Gary II. Defendant also maintains that because plaintiffs did not allege ambiguity in the language

of the trust agreement in their amended complaint, an action for construction of the trust, which

formed the basis of both counts I and VI, was “not proper.” Alternatively, he argues that counts I

and VI of plaintiffs’ amended complaint are barred by the doctrine of laches.

¶ 20 A. Construction or Interpretation of the Trust

¶ 21 Summary judgment is appropriate when “the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS

5/2-1005(c) (West 2020). “Where a plaintiff has moved for summary judgment, the materials

relied upon must establish the validity of the plaintiff’s factual position on all the contested

elements of the cause of action.” (Emphasis omitted.) Triple R Development, LLC v. Golfview

Apartments I, L.P., 2012 IL App (4th) 100956, ¶ 7, 965 N.E.2d 452. “Once the movant has met its

initial burden of production, the burden shifts to the nonmovant.” Id. ¶ 12.

¶ 22 “Summary judgment is a drastic means of disposing of litigation and should be

allowed only when the right of the moving party is clear and free from doubt.” Beaman v.

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Freesmeyer, 2021 IL 125617, ¶ 72, 183 N.E.3d 767. The trial court’s ruling on a motion for

summary judgment is subject to de novo review. Id.

¶ 23 “In interpreting trusts, which are construed according to the same principles as

wills, the goal is to determine the settlor’s intent, which the court will effectuate if it is not contrary

to law or public policy.” Citizens National Bank of Paris v. Kids Hope United, Inc., 235 Ill. 2d

565, 574, 922 N.E.2d 1093, 1097 (2009). “In determining this intent, courts consider the plain and

ordinary meaning of the words used, taking into consideration the entire document.” Id.

Additionally, “courts should give effect to each word and phrase and should decline to adopt a

construction which would render any portion of the language meaningless or nonsensical.” Stein

v. Scott, 252 Ill. App. 3d 611, 615-16, 625 N.E.2d 713, 717 (1993) (citing Harris Trust & Savings

Bank v. Donovan, 145 Ill. 2d 166, 172-73, 582 N.E.2d 120, 123 (1991)).

¶ 24 Initially, as argued by defendant, relevant case authority provides that an action for

construction of a will or trust must be accompanied by an allegation of ambiguity in the document.

“The court will take jurisdiction to hear and determine complaints to construe wills

where there is doubt or uncertainty as to the rights and interests of parties arising

under such wills. [Citations.] On the other hand, the court will refuse to assume

jurisdiction of a complaint to construe a will which is neither ambiguous or

uncertain. The court does not acquire jurisdiction to construe a will merely because

the complaint contains an allegation that a question requiring construction exists

where the record shows no such question exists. [Citations.]” Jusko v. Grigas, 26

Ill. 2d 92, 96-99, 186 N.E.2d 34, 37-39 (1962) (finding an amended complaint

“sufficiently stated a cause of action for will construction” where it contained

allegations that “the will embodied a contract and that the will was ambiguous and

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 required construction”).

See Mitchell v. Snyder, 402 Ill. 279, 286, 83 N.E.2d 680, 683 (1949) (stating that when there is

“no ambiguity or uncertainty in the clause, there is nothing to construe,” and “[a] court does not

acquire jurisdiction to construe a will merely by allegation that a question requiring construction

exists, when the record shows there is no such question”); Lloyd v. Sears Bank & Trust Co., 67 Ill.

App. 3d 141, 144, 384 N.E.2d 742, 745 (1978) (“In suits involving the construction of a will or

trust, the complaint is fatally defective if the language of the document is unambiguous.”); Cickyj

v. Skeltinska, 93 Ill. App. 3d 556, 562, 417 N.E.2d 699, 703 (1981) (concluding “that the terms of

the decedent’s will [were] clear and unambiguous” and, “[t]herefore, the amended complaint

fail[ed] to set forth an action for the construction of the language”); In re Estate of Krotz, 168 Ill.

App. 3d 545, 549, 522 N.E.2d 790, 792 (1988) (“Before undertaking to construe a disputed

provision in a will, the trial court must find an ambiguity giving rise to doubt or uncertainty as to

the rights and interests of the parties arising under such wills.”); In re Estate of Miller, 230 Ill.

App. 3d 141, 148, 595 N.E.2d 630, 634 (1992) (stating that “because a court has no authority to

construe a will which is neither ambiguous nor uncertain [citation], [the] petitioner’s action for

construction of [a] will should have been dismissed”).

¶ 25 The threshold question in an action to construe a will or trust is whether

construction is necessary, and only if a court finds that the will or trust is ambiguous will it

entertain the action. Coussee v. Estate of Efston, 262 Ill. App. 3d 419, 423, 633 N.E.2d 815, 818

(1994). Although cases have discussed the ambiguity requirement in terms of jurisdiction, “it is

more precise to say that once a court determines that no ambiguity exists in a will, an action for

construction should be dismissed.” Id. at 424. “If a court finds that a will is ambiguous, however,

the action for construction continues, and the court is given greater latitude to determine the

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testator’s intent.” Id. “The court may apply rules of construction to the will [citation], and the court

may examine extrinsic evidence relevant to the testator’s intent to resolve the ambiguity.” Id.

¶ 26 Whether a will or trust document is ambiguous presents a question of law, “and

ambiguity can be found only if the language is reasonably or fairly susceptible to more than one

interpretation.” Stein, 252 Ill. App. 3d at 615. “A contract is not ambiguous merely because the

parties disagree on its meaning.” Id. “An ambiguity can appear on the face of a will or when

attempting to implement a will’s provisions.” Coussee, 262 Ill. App. 3d at 424. “A latent ambiguity

occurs when the will appears clear on its face but some fact external to the will reveals that a

description of a bequest or of a legatee in the will is inadequate to determine who or what was

intended by the testator.” Id. “For the threshold determination of whether or not a will is

ambiguous, the court may examine only the four corners of the will and evidence brought by the

parties which tends to show a latent ambiguity.” Id.

¶ 27 Here, count I of plaintiffs’ first amended complaint was for construction of the

Trust. In connection with that count, they alleged as follows:

“Plaintiffs seek judicial construction of the Trust for the court to interpret or

construe the Trust to resolve ambiguity created or effectuated by [defendant], as

demonstrated herein, and to direct distribution of the Trust estate. There exists in

the Trust an uncertainty, that is not necessarily an ambiguity of a single term or

phrase, but instead an ambiguity of intent and meaning where the court is called to

consider the circumstances.”

Plaintiffs did not allege that any ambiguity was present on the face of the Trust or that a latent

ambiguity existed in that some external factor rendered Marjorie’s intentions unclear. Instead, they

asserted the existence of an ambiguity created by defendant in his allegedly erroneous

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interpretation of the Trust. In connection with their motion for summary judgment, plaintiffs

argued the Trust language “clearly” expressed Marjorie’s intention to treat her grandchildren

equally and give both plaintiffs a one-third interest in the property held by the Trust at the time of

her death. Additionally, on appeal, plaintiffs explicitly assert that the Trust language is

unambiguous.

¶ 28 Because plaintiffs failed to allege that the Trust was ambiguous, they did not

sufficiently state a cause of action for trust construction. Moreover, without alleging or establishing

ambiguity in the Trust at issue, a necessary element of a construction claim, plaintiffs could not

show their entitlement to summary judgment on that claim. Accordingly, we agree with defendant

that the court erred by granting partial summary judgment in plaintiffs’ favor as to count I.

¶ 29 Defendant argues that the result must be the same for plaintiffs’ claim for a

declaratory judgment in count VI, which he asserts was also based on a claim of construction. We

disagree.

¶ 30 “The essential requirements for asserting a declaratory judgment action are (1) a

plaintiff with a legal tangible interest, (2) a defendant with an opposing interest, and (3) an actual

controversy between the parties involving those interests.” Cahokia Unit School District No. 187

v. Pritzker, 2021 IL 126212, ¶ 36, 184 N.E.3d 233. In count VI of their amended complaint,

plaintiffs asked the trial court to “interpret Articles 7.20 and 7.50 of the Trust to include [them] as

Trust beneficiaries, and declare [that defendant] failed to fund [their] respective GST Exempt

Trusts.” As set forth above, both in the trial court and on appeal, plaintiffs have essentially

conceded that the language of the trust agreement is clear and unambiguous but disagreed with

defendant on its meaning, arguing defendant misinterpreted the plain and unambiguous language

of the trust agreement. Under such circumstances, “whether the trust agreement itself is ambiguous

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is not controlling, since it is the duty of the trial judge to interpret the agreement, which presents a

question of law, regardless of ambiguity.” Espevik v. Kaye, 277 Ill. App. 3d 689, 694, 660 N.E.2d

1309, 1313 (1996); see Barasch v. Barasch, 259 Ill. App. 3d 958, 961, 628 N.E.2d 833, 835 (1993)

(same). “Furthermore, it is the duty of the reviewing court to determine whether the trial judge’s

interpretation of the agreement was correct.” Espevik, 277 Ill. App. 3d at 694. We note that even

the case authority cited by defendant on appeal recognizes a court’s ability in a declaratory

judgment action to interpret trust provisions absent a claim or finding of ambiguity. See Stein, 252

Ill. App. 3d at 615 (interpreting the provisions of a trust in a declaratory judgment action when

“neither party dispute[d] that the trust terms were unambiguous” and no ambiguity was found by

the court).

¶ 31 Although we reject defendant’s assertion that declaratory judgment remedies were

unavailable to plaintiffs because they did not allege an ambiguity in the Trust, we agree that the

trial court erred in its interpretation of the Trust. Specifically, we find plaintiffs’ interpretation of

the Trust ignores the plain and unambiguous language of the trust agreement and Marjorie’s

expressed intent of allocating real estate held by the Trust for the benefit of Gary II up to the GST

exemption amount.

¶ 32 The record reflects the trial court determined the trust agreement was clear and that

its language indicated Marjorie intended any Trust property be divided equally among her

grandchildren at the time of her death, “and not solely for the benefit of [Gary II].” The most

relevant provisions of the trust agreement are contained in paragraphs 7.02 and 7.50. As noted by

plaintiffs, paragraph 7.02 indicates an intention by Marjorie to equally distribute Trust property to

her grandchildren, stating that upon Marjorie’s death, “the available GST Exemption Amount of

Trust property” would be given to the trustee “to allocate in shares of equal value for [Marjorie’s]

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grandchildren.” Significantly, however, paragraph 7.02 also sets forth qualifications regarding

such allocations. First, it explicitly states that “allocation for [Marjorie’s] grandchildren under

[paragraph 7.02] shall be subject to the GST Separate Trust provisions,” which are set forth in

paragraph 7.50 of the trust agreement. (Emphasis added.). It also provides that when making

allocations, the trustee “shall allocate all real estate” to the GST trust established for the benefit of

Marjorie’s grandson, Gary II.

¶ 33 Paragraph 7.50 then provides that any Trust property allocated for a grandchild

must be used to fund the principal of one of three separate GST trusts established for their benefit.

Importantly, paragraph 7.50 further provides that “[w]hen allocating the property between these

three Trusts, all real estate held in this Trust shall be allocated to [the Gary II GST trust] up to the

allowable amount which is one-third of the total GST Exemption Amount.” It next states that any

excess real estate that exceeds the funding amount for Gary II’s GST trust should be distributed

under the provisions of paragraph 7.02. Although paragraph 7.50 indicates the maximum funding

amount for Gary II’s GST trust is one-third of the total GST exemption amount, it also

unequivocally requires Trust real estate up to that maximum amount be allocated to only Gary II’s

GST trust.

¶ 34 The plain language of the trust agreement clearly and unambiguously expresses an

intention that Gary II be given preference over plaintiffs with respect to the allocation of real estate

held by the Trust. Paragraph 7.02, which generally provides for an equal allocation of Trust

property, is subject to qualification and is, ultimately, subordinate to Paragraph 7.50, which

explicitly requires that the trustee allocate Trust real estate up to one-third of the GST exemption

amount to only the GST trust for Gary II. Plaintiffs’ interpretation, which was accepted by the trial

court, fails to give effect to relevant provisions in the trust agreement and essentially renders

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meaningless the language in paragraphs 7.02 and 7.50 regarding the allocation of real estate to

Gary II.

¶ 35 Additionally, we note that during the summary judgment proceedings, defendant

presented evidence that one-third of the applicable GST exemption amount at the time of

Marjorie’s death was $1,166,666.66 and that the appraised value of real estate held by the Trust

and allocated to Gary II’s GST trust was $1,158,400. Plaintiffs do not dispute that evidence.

¶ 36 On appeal, the parties both discuss the Third District’s decision in Shea v. Lyons,

47 Ill. App. 2d 187, 192, 198 N.E.2d 151, 154 (1964), which plaintiffs cited below for the

proposition that a “testator’s heirs cannot be disinherited on mere conjecture, and when the testator

seeks to disinherit them[,] he must express his intention clearly, either by express words or

necessary implication.” (Emphasis omitted.). In that case, the court further stated as follows:

“[L]aw favors the construction of a will which conforms most nearly to the general

law of inheritance. Accordingly, where there is an ambiguity in a will, unless there

is a manifest intention to the contrary, the presumption that the testator intended

that his property should go in accordance with the laws of descent and distribution

will be applied as an aid in construing the will, and a construction which favors

heirs at law in preference to persons not so closely related to the testator should be

given to the will. In construing a will the presumption is against disinheritance, and,

while the testator is allowed to ignore, either in part or altogether, the rules laid

down in the statute as to where the estate of a decedent should go, it will not be

presumed that it was his intention to disregard the law as it is contained in the statute

in any part unless the terms of the will make such intention manifest. *** [I]f

disinheritance is manifest from the will, no construction contrary to the manifest

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 language of the will will be permitted.” (Emphasis added.). Id. at 191-92.

On appeal, plaintiffs argue that Marjorie expressly indicated that Trust property was to be divided

equally between her grandchildren and, as a result, “[d]efendant’s construction constitutes an

improper disinheritance in contravention of the clearly expressed intent of Marjorie.” They assert

that “[a]s stated in Shea, [they] cannot be disinherited on mere conjecture.”

¶ 37 Again, however, the language of the trust agreement is unambiguous. As a result,

we look to the plain language of the trust agreement without resorting to rules of construction. As

stated, plaintiffs’ interpretation of the Trust ignores and fails to give effect to language in the trust

agreement that explicitly requires the real estate held by the Trust to be allocated to the GST trust

established for the benefit of Gary II. The plain language of the trust agreement supports

defendant’s interpretation and does not result in plaintiffs being “disinherited on mere conjecture.”

¶ 38 Defendant acknowledges that under circumstances where only real estate under

one-third of the GST exemption amount remained in the Trust, there are no Trust assets to fund

plaintiffs’ GST trusts. However, “[i]t is an established rule *** that when a testator fails to provide

in the will for a contingency which the testator most likely would have provided for if he had

considered it, the court cannot guess or speculate as to the disposition the testator likely would

have made.” Larison v. Record, 117 Ill. 2d 444, 448, 512 N.E.2d 1251, 1253 (1987). In this

instance, the trust agreement contains no express provision addressing the circumstance of the

Trust assets including only real estate, and, specifically, real estate appraised at less than one-third

of the applicable GST exemption amount. We cannot speculate that such an event would have

altered the manner in which Marjorie elected to allocate the Trust real estate.

¶ 39 For the reasons expressed, the plain and unambiguous language of the trust

agreement does not support plaintiffs’ interpretation. Accordingly, we find the trial court erred by

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granting summary judgment in plaintiffs’ favor on their claim for declaratory relief in count VI.

¶ 40 B. Laches

¶ 41 On appeal, defendant additionally asks this court to “determine that Counts I and

VI of Plaintiffs’ First Amended Complaint are barred by the doctrine of laches.”

¶ 42 “Laches is an equitable principle that bars relief for a litigant whose unreasonable

delay in bringing an action has prejudiced the other party.” PNC Bank, National Ass’n v. Kusmierz,

2022 IL 126606, ¶ 25, 193 N.E.3d 1196. “The party asserting laches bears the burden of

establishing the defense by a preponderance of the evidence.” Id. ¶ 26. “Two elements must be

established for laches to successfully defeat a claim: (1) lack of diligence by the party asserting

the claim and (2) prejudice to the opposing party resulting from the delay.” Id.

¶ 43 Initially, we note that defendant raised the doctrine of laches as an affirmative

defense when answering plaintiffs’ amended complaint. Although he also raised the issue in his

response to plaintiffs’ motion for summary judgment, defendant did not file a cross-motion for

summary judgment asserting the doctrine of laches operated to defeat plaintiffs’ claims as a matter

of law.

¶ 44 Additionally, while defendant argues a lack of diligence by plaintiffs in bringing

their claims and points to specific evidence in the record to support his contentions, he raises no

argument in his appellant’s brief that he suffered any prejudice. In his reply brief, defendant

generally asserts that because many years have passed since Marjorie’s death, relevant documents

have become unavailable, witnesses have died or can no longer be reached, recollections have

faded, and evidence has become less available. However, he fails to cite any evidence in the record

to support his claim and does not specifically identify what relevant evidence is no longer available

to him. Given the above circumstances, defendant has failed to show his entitlement to a

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determination that counts I and VI of plaintiffs’ complaint are barred by laches.

¶ 45 III. CONCLUSION

¶ 46 For the reasons stated, we reverse the trial court’s judgment and remand for further

proceedings.

¶ 47 Reversed and remanded.

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