In re the Estate of Weidner

2016 IL App (4th) 160306, 68 N.E.3d 1011

Opinion

FILED

December 20, 2016

Carla Bender

2016 IL App (4th) 160306 4th District Appellate

Court, IL

NO. 4-16-0306

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Estate and Trust of Evelyn K. Weidner, FIRST ) Appeal from MID-ILLINOIS BANK & TRUST, N.A., ) Circuit Court of Petitioner-Appellee, ) Piatt County and ) No. 13CH45 TRUSTEE OF GERALD and LAVEDA WEIDNER ) TRUST, and JAMES GREGORY PETERS, ) Petitioners, ) v. ) LILA JOLENE PEIFER, PATRICIA MILLER, ) CAROLYN S. BAKER, LYLE J. WEIDNER, KEVIN ) Honorable WEIDNER, CURTIS WEIDNER, ) Timothy J. Steadman, Respondents-Appellants. ) Judge Presiding.

PRESIDING JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Holder White and Pope concurred in the judgment and opinion.

OPINION

¶1 Respondents, Lila Jolene Peifer, Patricia Miller, Carolyn S. Baker, Lyle J.

Weidner, Kevin Weidner, and Curtis Weidner, appeal from the trial court’s order finding James

Gregory Peters (Greg) to be a descendant of Betty Peters for purposes of distribution under the

Evelyn K. and Lyle F. Weidner, Sr. Trust and the Evelyn K. Weidner Children’s Trust. We

affirm.

¶2 I. BACKGROUND

¶3 On November 26, 1967, Greg was born to Ron and Patricia Peters. In 1970, Ron and Patricia divorced. Patricia was granted custody of Greg, subject to Ron’s visitation rights.

Greg resided with Patricia in the Champaign-Urbana area for a majority of his childhood.

¶4 In 1973, Ron moved in with Betty. In 1978, Ron and Betty were married.

Between late 1982 and early 1983, Greg resided with Ron and Betty in Farmer City. From

November 16, 1982, through January 13, 1983, Greg was enrolled in Farmer City schools.

¶5 On July 29, 1988, Evelyn K. and Lyle F. Weidner, Sr., created an irrevocable

inter vivos trust—the Evelyn K. and Lyle F. Weidner, Sr. Trust—to provide for the extra and

supplemental needs, comforts, and luxuries of their daughter Donna Weidner. The trust

terminated upon Donna’s death, after which any balance was to be distributed to certain then-

living children, grandchildren, descendants, or descendants of the named grandchildren of

Evelyn and Lyle Sr. In relevant part, the trust directed the distribution of one-fifth of the trust res

to the “Settlors’ daughter, BETTY JEAN PETERS, if then living; and if not then living, to her

descendants, per stirpes, then living; and if there are no such descendants of said BETTY JEAN

PETERS then living, then in equal portions to the [other then-living] beneficiaries.”

¶6 That same day, Evelyn executed the Last Will and Testament of Evelyn K.

Weidner, which created a testamentary trust—the Evelyn K. Weidner Children’s Trust. In her

will, Evelyn provided Lyle Sr. with a life estate in her farm real estate. Subject to Lyle Sr.’s life

estate, Evelyn provided the farm real estate was to pass to the trustee of the Evelyn K. Weidner

Children’s Trust. Upon Lyle’s death, the income from the farm real estate was to be distributed

to certain then-living children, grandchildren, descendants, or descendants of the named

grandchildren of Evelyn and the trustee of the Evelyn K. and Lyle F. Weidner, Sr. Trust. In

relevant part, the trust directed one-sixth of the income “to my daughter, BETTY JEAN

-2­ PETERS, if then living; and if not then living, to her descendants, per stirpes, then living; and if

there are no such descendants of said BETTY JEAN PETERS then living, then in equal portions

to the [other then-living and trust] beneficiaries.” The trust terminated upon Donna’s death, after

which any balance was to be distributed to certain then-living children, grandchildren,

descendants, or descendants of the named grandchildren of Evelyn. In relevant part, the trust

directed the distribution of one-fifth of the trust res to “my daughter, BETTY JEAN PETERS, if

then living; and if not then living, to her descendants, per stirpes, then living; and if there are no

such descendants of said BETTY JEAN PETERS then living, then in equal portions to the [other

then-living] beneficiaries.”

¶7 In November 1989, Evelyn died and her will was admitted to probate.

¶8 In September 1990, Betty adopted Greg. Betty was 47 years old, and Greg was 22

years old. The adoption file was sealed.

¶9 In July 1996, Lyle Sr. executed the Last Will and Testament of Lyle F. Weidner,

Sr., which excluded Greg by name. In August 1997, Lyle Sr. executed his first codicil to that

will, which defined Lyle Sr.’s descendants as his own children and their “lawful, natural, blood

descendants,” including persons adopted by them prior to attaining the age of 18.

¶ 10 In December 2000, Lyle Sr. died. The trustee of the Evelyn K. Weidner

Children’s Trust began making income payments from Evelyn’s farm real estate to the remainder

beneficiaries, including Betty.

¶ 11 In January 2005, Betty died. Following Betty’s death, the portion of the income

payments from the farm real estate earmarked for Betty or her descendants was divided amongst

the other then-living beneficiaries. Greg never received income payments from the farm real

-3­ estate.

¶ 12 In September 2012, Donna died. The res from the Evelyn K. and Lyle F.

Weidner, Sr. Trust was distributed, none of which went to Greg. Following that distribution but

before the full distribution of the Evelyn K. Weidner Children’s Trust, Greg asserted claim to a

share of each trust.

¶ 13 At a February 2016 hearing, Greg testified regarding his relationship with Betty

and the Weidner family. Greg knew Betty since he was six. Betty transported Greg to and from

Patricia’s home for visitation with Ron. Betty was always present during visitation. Greg spent

time with Betty and Ron every other weekend, if not every weekend. Betty had always talked

about having Greg as her son. Betty attended Greg’s high school graduation. On Fridays, Betty

and Greg would spend time at Evelyn’s home. Greg attended Weidner family vacations and

spent time with the Weidner family during holidays, including his birthday. Up until her death,

Greg received birthday cards and presents from Evelyn.

¶ 14 Greg also testified regarding the circumstances surrounding his adoption. Greg

stated:

“I think Betty would have probably tried to adopt me earlier in life

but since I had such a good relationship with my mother, I don’t

think Betty ever wanted to cross that boundary and then make it a

fight, you know, because they got along. And Betty came to me

around that time and said that she would really like to adopt me for

estate reasons, and you know, Betty really loved me. I mean, you

know, we shared a great I guess mother-son relationship the whole

-4­ time, you know, I was growing up. We never had any fights or any

arguments or any of that sort of effect. And this, the way she told

me about this was if she adopted me this would give me the

opportunity to be in her estate, plus it wouldn’t take any rights

away from my mother. It wouldn’t be like she was stepping on my

mother’s feet to adopt me.”

When later again questioned regarding the adoption, Greg stated:

“I mean it was for the estate itself. Betty loved me a lot and

she wanted to make sure that if something happened to her before

it happened to my father, that she wanted me to have a little bit of

something. That was the conversation we had.”

At the time of the adoption, Greg was living 10 miles from Betty and Ron and had been Betty’s

step-son for 12 years. Greg later moved away for a couple of years but ultimately returned and

spent much of his time with Betty and Ron. Greg was at Betty’s bedside when she passed. Greg

considered Betty to be his mother. Greg first told Patricia about the adoption after Betty’s death.

¶ 15 In April 2016, the trial court entered a written order finding Greg to be a

descendent of Betty for purposes of distribution under both trusts. Specifically, the court found,

given the statutory presumption and the lack of language in the trust instruments suggesting any

intent to exclude adopted children, Greg was entitled to take under the trusts as Betty’s

descendant. The court further rejected respondents’ argument suggesting the adoption was a

subterfuge similar to the adoptions occurring in Cross v. Cross, 177 Ill. App. 3d 588, 532 N.E.2d

486 (1988), and Dixon v. Weitekamp-Diller, 2012 IL App (4th) 120209, 979 N.E.2d 98. The

-5­ court found:

“Greg first became acquainted with Betty when he was

[six] years old. Their relationship continued for over 30 years until

her death in 2005. It is uncontradicted that Betty provided

transportation to accommodate child visitation, that she took a

special interest in Greg’s activities as a youth, that Greg moved in

with Betty and his father for a couple of months or so while he was

in high school, that she had conversations with Greg’s biological

mother regarding his well being, and that Betty attended Greg’s

high school graduation. Greg was at Betty’s bedside during her last

few days. It is clear from the evidence that they shared a close

relationship with Betty being more actively involved in Greg’s life

than might normally be expected of a step parent. The evidence

shows that through Betty[,] Greg became a regular participant in

Weidner family activities such as holiday and birthday celebrations

and family vacations.

There is little doubt that when Betty adopted Greg she was

motivated in part by a desire to provide a means for him to be her

descendant for purposes of inheritance, however, it is also

abundantly clear from the evidence that her intent to provide for

him financially in this manner was also the product of traditional

parental desires. The court finds that the evidence fails to show the

-6­ adoption was done solely for the purpose of making Greg an heir.

There was no subterfuge as existed in Cross and like cases.”

(Emphasis in order.)

¶ 16 This appeal followed.

¶ 17 II. ANALYSIS

¶ 18 On appeal, respondents argue the trial court erred in concluding Greg was a

descendent of Betty for purposes of distribution under the Evelyn K. and Lyle F. Weidner, Sr.

Trust and the Evelyn K. Weidner Children’s Trust. Specifically, respondents argue (1) the record

demonstrates Evelyn and Lyle Sr. intended to exclude Greg from taking under the trusts, and (2)

Greg’s adoption was an act of subterfuge for the purpose of distribution under the trusts. We

review de novo a trial court’s legal conclusions as to the construction and legal effect of a trust

document. Church of the Little Flower v. US Bank, 2012 IL App (4th) 120266, ¶ 15, 979 N.E.2d

106.

¶ 19 A. Statutory Presumption and Trust Language

¶ 20 Section 2-4(e) of the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. 110 1/2, ¶ 2­

4(e) (now 755 ILCS 5/2-4(e) (West 2014))) provides: “For the purpose of determining the

property rights of any person under any instrument executed on or after September 1, 1955, an

adopted child is deemed a child born to the adopting parent unless the contrary intent is

demonstrated by the terms of the instrument by clear and convincing evidence.” See also In re

Estate of Brittin, 279 Ill. App. 3d 512, 516, 664 N.E.2d 687, 690 (1996) (“The adoptee,

regardless of his age upon adoption, attains the status of a natural child of the adopting

parents.”). Under the statutory presumption, Greg is unquestionably entitled to be treated as a

-7­ beneficiary under the trusts.

¶ 21 In an attempt to rebut that presumption, respondents assert the record

demonstrates Evelyn and Lyle Sr. intended to exclude Greg from taking under the trusts. In

support, respondents highlight (1) the Wiedners’ previous relationship with Greg, yet the lack of

explicit inclusion as a beneficiary under the trust instruments, and (2) Lyle Sr.’s later exclusion

of Greg in his will.

¶ 22 To rebut the statutory presumption in favor of adoptees, the evidence “must be

something more in the terms of the instrument itself to demonstrate, at a minimum, that the

testator actually considered the contingency of adoption.” First National Bank of Chicago v.

Narcissa Swift King, 165 Ill. 2d 533, 540-41, 651 N.E.2d 127, 131 (1995); see also Continental

Bank, N.A. v. Herguth, 248 Ill. App. 3d 292, 300-01, 617 N.E.2d 852, 858 (1993) (Inglis, P.J.,

dissenting); In re Estate of Roller, 377 Ill. App. 3d 572, 582, 880 N.E.2d 549, 557 (2007). The

trust instruments direct the distribution of the income and/or res to Betty “if then living; and if

not then living, to her descendants, per stirpes, then living.” This language does not provide clear

and convincing evidence Evelyn and Lyle Sr. intended to exclude adopted children from taking

under the trusts. See King, 165 Ill. 2d at 541, 651 N.E.2d at 131 (finding the testator’s use of the

terms “lawful descendants” and “per stirpes “ was not sufficient to demonstrate by clear and

convincing evidence an intent to exclude adopted children from taking under the trust); Estate of

Roller, 377 Ill. App. 3d at 584, 880 N.E.2d at 559 (finding the testator’s use of the terms “natural

children” and “heirs of the body” was not sufficient to demonstrate by clear and convincing

evidence an intent to exclude adopted children from taking under the trust). We reject

respondents’ attempt to rely on speculative extrinsic evidence to demonstrate a contrary intent.

-8­ Ill. Rev. Stat. 1989, ch. 1101/2, ¶ 2-4(e) (requiring the court to evaluate whether a contrary intent

appears by the terms of the instrument). Respondents have failed to rebut the statutory

presumption by clear and convincing evidence.

¶ 23 B. Limited-Use Subterfuge Exception

¶ 24 Respondents assert that, regardless of the statutory presumption, we should

invoke the limited-use subterfuge exception to preclude Greg from taking under the trusts.

Respondents argue Greg’s adoption was an act of subterfuge for the purpose of distribution

under the trusts. In support, respondents highlight (1) Greg’s age when he was adopted; (2) the

fact the adoption occurred one year after Evelyn’s will was admitted to probate; (3) the fact Greg

did not tell his biological mother about the adoption until Betty’s death; and (4) Greg’s testimony

indicating Betty wanted to adopt him for estate reasons.

¶ 25 In 1988, the First District addressed the concept of a limited-use subterfuge

exception. In Cross, 177 Ill. App. 3d at 589, 532 N.E.2d at 487-88, the testator died, leaving her

estate in trust and granting her son a testamentary power of appointment to distribute the res of

the trust to any of her descendants. Any part of the trust estate not effectively appointed by the

testator’s son was directed to be divided equally amongst the testator’s husband’s nephews. Id. at

590, 532 N.E.2d at 488. One month after the testator’s death, her 49-year-old son adopted the 36­

year-old defendant as his son and then exercised his testamentary power of appointment in favor

of the defendant as the grandson and descendant of the testator. Id. The exercise of the power of

appointment was later challenged, and the trial court found the defendant was not a descendant

of the testator. Id. On appeal, the court found the trust language demonstrated the testator’s

desire to have her estate remain in her family unless the family chose to give it to charity. Id. The

-9­ court further found to allow the testator’s son to select by adoption the one to take his mother’s

estate would disregard the intent of the trust, a use of the adoption process the court could not

condone. Id. at 591, 532 N.E.2d at 488. Specifically, the court noted: “The 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.” Id. at 591,

532 N.E.2d at 488-89. The defendant attempted to argue extrinsic facts to demonstrate the

adoption was motivated by traditional parental desires. Id. at 592, 532 N.E.2d at 489. The court

found, while it was unnecessary to review such facts, the record demonstrated any such argument

to be unpersuasive. Id.

¶ 26 Almost 24 years later, our court had the opportunity to address and apply the

limited-use subterfuge exception. In Dixon, 2012 IL App (4th) 120209, ¶ 8, 979 N.E.2d 98,

Hughes was the life-estate income beneficiary of three trusts created by family members. Those

trusts provided for the res of each to be distributed to Hughes’ children at his death; however, if

Hughes were to die without children, the res of each trust would go to Hughes’ sister’s children.

Id. ¶¶ 1, 10-14. Eighty-seven-year-old Hughes, who had previously been unmarried, married his

71-year-old former assistant, Barbara. Id. ¶ 2. At the age of 94, Hughes adopted Barbara’s four

adult daughters, all of who were in their 50’s. Id. ¶¶ 28, 30. Following Hughes’ death, the trial

court found Barbara’s daughters were not entitled to take under the trusts as (1) the sole purpose

of the adoptions was to take under the trusts and (2) the settlors of the trusts did not intend for the

remainder interests to pass to nonfamily members who were adopted long after they became

adults and were never raised by the family. Id. ¶ 32. On appeal, we found the trusts demonstrated

the testators’ intent to have the res of the trust remain in the testators’ family, an intent that

- 10 ­ would be thwarted by allowing Barbara’s daughters to take under the trusts. Id. ¶ 41. We further

declined to enforce the statutory presumption and treat Barbara’s daughters as Hughes’

biological children as the record revealed their adoptions were for the sole purpose of making

them beneficiaries under the trusts. Id. ¶ 39.

¶ 27 We are now tasked with determining whether the facts of this case warrant

applying the limited-use subterfuge exception. In making that determination, we must consider

the entire record to determine whether the adoption was an act of subterfuge for the sole purpose

of taking under the trusts.

¶ 28 The record reveals a relationship significantly different than the relationships

detailed in Cross and Dixon. Greg and Betty maintained an active, close relationship for over 30

years. Betty was his stepmother. She was an integral part of Greg’s childhood, and Greg

considered Betty as a mother. Greg lived with Betty and Ron for a period while in high school.

Greg became a regular participant in Weidner family holidays and vacations. During his

childhood, Betty had expressed a desire to adopt. While Greg later moved away, he ultimately

returned and spent much of his time with Betty and Ron.

¶ 29 Betty adopted Greg when he was 22 years old. At that time, Greg was living 10

miles from Betty and Ron. Greg suspected Betty would have adopted him earlier in life but she

wanted to avoid stressing the relationship with Greg’s biological mother. According to Greg,

Betty sought to adopt for “estate reasons” and because she “really loved [him].” Greg suggested

the adult adoption allowed him “to be in her estate” without taking away any of his biological

mother’s rights.

¶ 30 As the trial court succinctly stated:

- 11 ­ “There is little doubt that when Betty adopted Greg she was

motivated in part by a desire to provide a means for him to be her

abundantly clear from the evidence that her intent to provide for

him financially in this manner was also the product of traditional

parental desires.”

We find the record fails to demonstrate Greg’s adoption occurred solely for the purpose of taking

under the trusts. We agree with the trial court’s judgment and decline to invoke the limited-use

subterfuge exception to preclude Greg from taking under the trusts.

¶ 31 III. CONCLUSION

¶ 32 We affirm the trial court’s judgment.

¶ 33 Affirmed.

- 12 ­