2014 IL App (1st) 132239 No. 1-13-2239 Fifth Division August 22, 2014
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
) GERALD S. McCARTHY, ) ) Appeal from the Circuit Court Plaintiff-Appellant, ) of Cook County. ) v. ) No. 13 CH 0278 ) ROZLYN TAYLOR, ELAINE LAWELL, ) The Honorable Rodolfo Garcia, WAYNE REYNOLDS, SR., ) Judge Presiding. and DEVON MORRIS, ) ) Defendants-Appellees. ) )
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Taylor concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Gerald S. McCarthy appeals the trial court’s finding that a handwritten
amendment to a trust naming defendant Rozlyn Taylor as the successor trustee is valid and
enforceable. Plaintiff claims: (1) that during the last years of decedent Abraham Lincoln
Reynolds III’s life and at the time of his death, plaintiff was successor trustee; and (2) that
the handwritten amendment to the trust appointing defendant as successor trustee is invalid
as it neither complied with the requirements of the trust’s own amendment clause nor No. 1-13-2239
complied with the requirements for amendments under Illinois law. For the following
reasons, we affirm.
¶2 BACKGROUND
¶3 I. The Complaint
¶4 On January 4, 2013, plaintiff filed a verified complaint for declaratory judgment and
other relief.
¶5 The complaint alleges that on July 20, 2006, Reynolds created and executed the “A.L.
Reynolds III 2006 Declaration of Living Trust” (the trust). Reynolds was the “first trustee
and instructed that he would have full power over the trust during his life and that after his
death the trust assets ‘shall be administered by [Reynolds’] successor trustee(s) in accordance
with the terms that are set forth’ ” in the trust. The trust named Cherie Coles 1 as the
successor trustee and it provided that “if Coles could not act at the time of [Reynolds’] death,
and no alternate successor was named,” then plaintiff was to be appointed second successor
trustee. The trust granted 10% of the residuary estate to plaintiff, 80% to Coles, and 10% to
Elaine Lawell. However, if Coles predeceased Reynolds, her 80% interest would go to
plaintiff.
¶6 Coles passed away on April 23, 2007. The complaint alleges that, after Coles’ death,
Reynolds never appointed a replacement successor trustee, and “thus, pursuant to the terms
of the Trust [plaintiff] became the successor trustee.”
¶7 On March 3, 2010, Reynolds “amended the Trust by a type-written, executed[,] and
notarized document.” Furthermore, the complaint alleges that this amendment “was delivered
1 According to the trial court’s oral opinion, Cherie Coles was the love interest of Reynolds, but predeceased him. 2 No. 1-13-2239
to [plaintiff], as successor trustee, during [Reynolds’] life as required by the Trust in order to
make the Amendment effective.”
¶8 The complaint alleges that Reynolds left plaintiff a voice message on December 15,
2012. The message indicated that Reynolds was taking his own life and that “something was
left in [Reynolds’] apartment.”
¶9 Reynolds committed suicide on December 15, 2012. After plaintiff listened to the voice
message left by Reynolds, on December 16, 2012, he contacted the Chicago police
department, which discovered Reynolds’ body in his automobile.
¶ 10 The complaint alleges that defendant 2 was on the scene when the police discovered the
body and that she was left alone to go to Reynolds’ apartment. The complaint further alleges
that, “on information and belief, Taylor removed items from the apartment.”
¶ 11 According to the complaint, Reynolds’ attorney contacted plaintiff on December 16,
2012, and told him that plaintiff was the successor trustee and that there were tasks that had
to be accomplished. However, after meeting with defendant, the attorney contacted plaintiff
and told him that he had forgotten that Reynolds had come to see him about a week before
his death and given him instructions on amending the trust. The attorney told plaintiff that,
under the amendment, defendant, not plaintiff, was the successor trustee and would take 80%
of the trust assets.
¶ 12 The complaint alleges that on December 19, 2012, the attorney sent plaintiff a copy of the
amendment to the trust with a cover letter, which stated:
“You indicated to me by phone that A.L. left you a message in the evening of
December 17, 2012, advising you that he visited with me and that he wanted you and 2 According to the trial court’s oral opinion, after Cherie Coles passed away, Reynolds met defendant and the two became intimately involved. 3 No. 1-13-2239
Rozlyn to share the trust assets. At home at about mid-day on that same date,
[Reynolds] presented to me the amended trust document that he had made in his own
handwriting.”
Two days later, on December 21, 2012, the attorney sent plaintiff a letter stating that his
reference to December 17, 2012, in the cover letter should be replaced with December 15,
2012, the date that Reynolds passed away.
¶ 13 The complaint alleges that the amendments “were not initialed, were not type-written,
were not signed, and were not notarized – as the Trust and [2010] amendment had been.” The
complaint further alleges that “the revisions are inconsistent *** and make no sense in
places.” For example, “on page 2, [plaintiff’s] interest is stated to be both 20 and 10%.”
¶ 14 According to the complaint, “[the attorney], presumably at the direction of Taylor, began
to contact financial institutions, the medical examiner, the condominium association, etc.
claiming that he was acting under the direction of the successor trustee, Taylor, and
indicating that Taylor had [the] power to direct the Trust.” On December 26, 2012, plaintiff
sent a letter to the attorney “requiring him to cease and desist from taking [any] further steps
related to the Trust or any amendments thereto, actual or purported.” On December 28, 2012,
the attorney “indicated that he would refrain from liquidating assets under the Trust while
this suit was drafted and filed[,] but did not commit to taking no further action under the
Trust.”
¶ 15 In the complaint, plaintiff requested that the trial court declare the 2012 amendments to
the trust invalid, enter a temporary restraining order preventing defendant from taking any
actions with respect to the trust, and enter a preliminary and permanent mandatory injunction
for the same. Moreover, plaintiff alleges “on information and belief, [that] Taylor, in
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conjunction with [the attorney] wrongfully assumed control, dominion and/or ownership of
Trust assets.”
¶ 16 A. The Trust
¶ 17 The first paragraph of the trust declares that the trust consists “of the property identified
on [an] attached Schedule of Property.” It declares Reynolds “first trustee” and provides that,
upon Reynolds’ death, the trust shall “be administered by [his] successor trustee(s) in
accordance with the terms that are set forth” in the trust.
¶ 18 The second paragraph of the trust, hereinafter referred to as “the amendment clause,”
provides:
“At any time during my life, I may amend or revoke this
instrument or remove the successor trustee, by written notice delivered
to the successor trustee, and if this instrument is completely revoked,
all trust property held by the trustee shall be transferred and delivered
in total and revert back to me as my personal and/or individual
property or as I otherwise may direct in writing.”
¶ 19 The third paragraph of the trust, hereinafter referred to as “the succession clause,” names
Coles as Reynolds’ successor trustee. The remainder of the paragraph provides:
“The successor trustee may resign at any time by written notice to
me if living, otherwise to each beneficiary then entitled to receive
assets from the trust. In the case of the resignation, refusal or inability
to act of the successor trustee appointed to act hereunder, notice should
be provided to me, if living, otherwise to the beneficiaries who shall
appoint another successor trustee. If such notice is received by me and
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I am unable to then appoint a second successor trustee, I declare that
Gerald McCarthy *** is hereby appointed second successor trustee. In
the event that neither Cherie Coles nor Gerald McCarthy are able to
serve as successor trustees and I am unable to then appoint an
alternative second successor trustee, I appoint [my attorney] to serve in
their stead.”
¶ 20 The fourth paragraph provides that, upon Reynolds’ death, the successor trustee is to take
possession of and provide care for Reynolds’ dog “Joy Joy.” If the successor trustee is unable
to provide for his dog, Elaine Lawell is to provide for Joy Joy.
¶ 21 The fifth paragraph provides that all unliquidated assets and property in the trust are to be
sold “and, thereby, reduced to cash” upon Reynolds’ death. After the cash is used to satisfy
certain expenses, obligations, and debts, the trust provides that “the remaining cash shall be
distributed” in the following manner: (1) 10% to plaintiff; (2) 10% to Lawell; and (3) 80% to
Coles.
¶ 22 The sixth paragraph of the trust provides, in relevant part:
“In the event that Cherie Coles pre-deceases me, her percentage
share (80%) shall be given to Gerald McCarthy and Gerald
McCarthy’s percentage share (10%) *** shall [be] extinguished and be
given to Reverend Wayne Reynolds, Senior.”
¶ 23 Finally, the last paragraph of the trust provides:
“It is my further intention that this document and its contents
remain confidential during my life and shall not be disclosed to anyone
including the successor trustee(s) named herein and the beneficiaries;
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the original shall be kept in my possession and a duplicate of the
original shall be maintained by [my attorney] who, upon my death,
shall distribute copies to my successor trustee and the beneficiaries.”
¶ 24 A schedule of the property “encompassed and *** owned by [the] trust” is attached to the
document. Among other assets, the attachment lists Reynolds’ checking account, money
market checking account, two individual retirement accounts (IRAs), multiple savings bonds,
and a “1996 Mercury Grand Marquee automobile.”
¶ 25 B. 2010 Amendment
¶ 26 On March 3, 2010, Reynolds executed an “Amendment to the Abraham Lincoln
Reynolds, III 2006 Declaration of Living Trust” (2010 amendment). Like the trust, the 2010
amendment is typewritten, signed, and notarized.
¶ 27 Specifically, the 2010 amendment: (1) “clarified and augmented” the powers of the
trustee to include the powers “to borrow money on behalf of the trust and to pledge and
encumber property of the trust” and (2) provided that “real property owned by [the trust] is
encumbered or conveyed by [Reynolds] to secure payment” for a “Home Equity Conversion
Mortgage” (HECM) through Wells Fargo Bank.
¶ 28 C. Cover Letter and 2012 Amendment
¶ 29 In a cover letter dated December 19, 2012, the attorney informed plaintiff that Reynolds
came to the attorney’s home prior to his suicide and presented the attorney with an amended
trust document that he “had made in his own handwriting.” The attorney wrote that the
amendments named defendant as successor trustee, not plaintiff, and that Reynolds “assured
[the attorney] that they represented his desire as the settlor and first trustee of the trust
assets.”
7 No. 1-13-2239
¶ 30 The attorney attached a copy of the 2012 amendment to his letter to plaintiff. The
document is an exact copy of the original trust. As a result, the document bears Reynolds’
initials on pages one through three, Reynolds’ signature on page four, and the original
notarization from when Reynolds executed the document in 2006. However, certain words
are crossed out in the body of the document. Where a provision or word is crossed out, a new
word or provision is handwritten above.
¶ 31 Relevantly, wherever Coles’ name appears on a document, it is crossed over by hand, and
“Rozlyn Taylor” is handwritten above. Additionally, in the fifth paragraph, the distribution of
the remaining cash after expenses is modified. Both the names and respective shares of
Lawell and Coles are crossed off. Handwritten above Lawell’s name are the words “10% to
Devon Morris.” Handwritten above Coles’ name are the words “70% [to] Rozlyn Taylor.”
Additionally, “20%” is handwritten above plaintiff’s original 10% share. 3 Thus, the changes
appear to increase plaintiff’s share from 10 to 20%, give Lawell’s original 10% share to
Devon Morris, and change the original “eighty percent to Cherie Coles” to “70% [to] Rozlyn
Taylor.”
¶ 32 Finally, on the attached schedule of property, Reynolds’ checking account, money market
checking account, two IRAs, and multiple savings bonds are crossed out. The word “gone” is
handwritten next to each one. At the bottom of the page, different checking accounts and
IRA accounts are handwritten. Last, “1996 Mercury Grand Marquee” is crossed out.
Handwritten above is “1988 Oldsmobile.”
3 Unlike Lawell’s and Coles’ original shares, plaintiff’s original “10%” share is not crossed out. 8 No. 1-13-2239
¶ 33 II. Pretrial Proceedings
¶ 34 On January 9, 2013, the trial court entered a temporary restraining order against
defendant requiring her to refrain from taking any actions with respect to the trust. On
February 11, 2013, the temporary restraining order was extended to March 20, 2013. On
March 13, 2013, defendant filed her answer and affirmative defenses to plaintiff’s verified
complaint.
¶ 35 III. Trial
¶ 36 On March 21, 2013, the trial court held a hearing to determine the validity of the 2012
amendments. The trial court took the matter under advisement and directed the parties to
prepare written closing arguments to be submitted by April 23, 2013. 4 Additionally, the trial
court further extended the temporary restraining order until May 8, 2013.
¶ 37 In her written closing arguments, defendant argued that under the terms of the trust,
plaintiff was never named successor trustee. Defendant argued that there were two conditions
precedent to plaintiff becoming successor trustee: (1) Reynolds had to receive notice that
Coles was unable to serve as successor trustee, and (2) Reynolds had to be unable to appoint
a second trustee. While the first condition occurred when Reynolds received notice of Coles’
passing, defendant argued, Reynolds was never unable to appoint a second trustee and in fact
did appoint defendant as successor trustee with the 2012 amendments.
¶ 38 In her written closing arguments, defendant quoted the attorney’s testimony at trial, in
which the attorney testified that plaintiff, “as a matter of fact, was never named successor
trustee at all by Mr. Reynolds.” Additionally, defendant quoted the attorney as testifying that
4 There are no transcripts of trial testimony on the record. However, defendant, in her written closing arguments, and the trial court, in its oral opinion, did reference and quote certain parts of the testimony, which we rely on. 9 No. 1-13-2239
Reynolds “never was [unable to appoint a successor trustee]. He was always able and did at
the end [appoint defendant as successor trustee].”
¶ 39 Additionally, defendant argued that “the undisputed evidence at trial shows that Reynolds
purposely reserved in his trust document the unfettered right to amend or revoke it.”
(Emphasis in original.) Defendant further argued that the 2012 amendments were valid
because they complied with the amendment clause set out in the original trust, which,
according to defendant, placed no restrictions on Reynolds’ ability to amend the document.
¶ 40 In support of her argument that Reynolds intended to amend and did amend the trust with
the 2012 amendment, defendant cited “evidence at trial” consisting of a transcript of a
telephone message left by Reynolds on December 14 for the attorney, seeking an
appointment “ ‘so [Reynolds] can come in and execute this [2012 amendment], get this out of
the way.’ ” Defendant stated that, according to the attorney’s testimony at trial,“after receipt
of [the December 14] telephone message, [the attorney] called Reynolds on Saturday,
December 15, 2012.” Defendant cited the attorney as testifying that Reynolds “already”
made the amendments at that point and wanted to “bring them by” the attorney’s home that
day.
¶ 41 Defendant also argued that delivery was not required for a valid amendment and that the
delivery provision in the amendment clause was only intended to apply to Reynolds’ removal
of the successor trustee. In support of her argument, defendant pointed to the fact that
Reynolds wrote into the trust a provision that the trust was to remain confidential and
undisclosed to “anyone, including the successor trustee(s),” until his death. Defendant also
cited the attorney’s testimony at trial that the delivery provision was placed in the trust to
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provide Reynolds with a mechanism to remove Cherie Cole as successor trustee “should the
parameters of that romance change.”
¶ 42 On May 7, 2013, defendant filed an emergency motion to strike certain pleadings filed by
plaintiff. The motion alleged that, while the trial court received plaintiff’s written closing
arguments, defendant never received a copy. 5
¶ 43 On May 9, 2013, the trial court issued its ruling. In its oral opinion, the trial court noted
that the “facts are virtually uncontested” and that “there are two provisions of the Trust that
are at the center of the dispute between the parties.” The first provision at issue is the
succession clause, and the second provision at issue is the amendment clause.
¶ 44 Since Coles passed away during Reynolds’ lifetime, the trial court found that, “without a
valid amendment to the Living Trust, Gerald McCarthy would be the appointed second
successor trustee” under the succession clause. Thus, the trial court stated that “this case
turns on” whether Reynolds properly amended the trust under the amendment clause.
¶ 45 Turning to what is required under the amendment clause, the trial court reviewed the
attorney’s testimony at trial. The court stated:
“ [According to the attorney’s testimony], the omission of any requirement in the
trust instrument that any trust amendment be written, signed, notarized, or witnessed
*** reflect[s] Mr. Reynolds’ desire, and here’s the quote [from the attorney’s
testimony], ‘to be free and unfettered, with respect to his ability to amend the trust,
should he see fit.’ ”
5 Although there is an email in the record corroborating that the trial court did receive a copy of plaintiff’s written closing arguments, there is no copy of plaintiff’s closing arguments in the record. 11 No. 1-13-2239
Noting that the amendment clause concludes with the phrase “or as I otherwise may direct in
writing,” the trial court rejected defendant’s argument that there were no restrictions on
Reynolds’ ability to amend the trust. Therefore, the trial court found that, under the trust’s
amendment clause, any amendment had to be in writing.
¶ 46 However, the trial court found no other restrictions under the trust’s amendment clause.
In so doing, the trial court rejected plaintiff’s argument that in addition to a valid amendment
being in writing, an amendment also had to be (1) delivered to the successor trustee and (2)
newly signed with Reynolds’ signature. Concluding that delivery was not required, the court
stated “it was either a misplaced comma in [the amendment clause] or the mistaken insertion
of the power to remove the successor trustee in the same sentence regarding the power to
amend or modify the trust that gave rise to this legal dispute.” 6 The court continued:
“I find it so unlikely that Mr. Reynolds meant for the second
comma to be placed where it was that I rule that the first provision
should be interpreted without that second comma. No notice to Cherie
Coles or anyone else named as successor trustee was required before
Mr. Reynolds could exercise his right amend the 2000 [sic] Living
Trust in writing.”
In concluding that a signature was not required, the trial court found that “handwritten
changes are equally reliable as a signature of the person making the changes” and that in any
event, the trust was “already signed by Mr. Reynolds [in 2006], making it unnecessary that
he sign the changes he directed in his own handwriting.”
6 Here, the trial court refers to the following portion of the amendment clause: “At any time during my life, I may amend or revoke this instrument or remove the successor trustee, by written notice delivered to the successor trustee ***.” (Emphasis added.)
12 No. 1-13-2239
¶ 47 Accordingly, the trial court entered judgment in favor of defendant, finding that the 2012
amendment is valid and that defendant is the rightful successor trustee. The court then
dissolved the temporary restraining order.
¶ 48 On June 5, 2013, plaintiff filed a motion for reconsideration and for stay pending hearing.
In the motion, plaintiff argued that the trial court was improperly “rewriting” the trust
agreement when it disregarded the second comma of the amendment clause. Additionally,
plaintiff argued that the trial court improperly considered the attorney’s testimony that
Reynolds desired “to be free and unfettered with respect to his ability to amend his trust, as
he should see fit.”
¶ 49 On June 14, 2013, the trial court denied plaintiff’s motion to reconsider.
¶ 50 ANALYSIS
¶ 51 Plaintiff appeals the trial court’s finding that a handwritten amendment to the trust
naming defendant as the successor trustee is valid and enforceable. Plaintiff claims: (1) that
during the last years of Reynolds’ life and at the time of his death, plaintiff was successor
trustee; and (2) that the handwritten amendment to the trust appointing defendant as
successor trustee is invalid as it neither complied with the requirements of the trust’s own
amendment clause nor complied with the requirements for amendments under Illinois law.
For the following reasons, we affirm.
¶ 52 I. Standard of Review
¶ 53 Plaintiff claims that we should review the trial court’s decision de novo. Eychaner v.
Gross, 202 Ill. 2d 228, 252 (2002). Defendant, on the other hand, claims that we should
review the trial court’s decision under the “manifest weight of the evidence” standard.
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Eychaner, 202 Ill. 2d at 251 (citing Chicago Investment Corp. v. Dolins, 107 Ill. 2d 120, 124
(1985)).
¶ 54 To the extent that we consider the construction and legal effect of a trust document, we
review a trial court’s conclusions of law. Eychaner, 202 Ill. 2d at 252. In reviewing a trial
court’s conclusions of law, our standard of review is de novo. Eychaner, 202 Ill. 2d at 252
(citing Norskog v. Pfiel, 197 Ill. 2d 60, 70-71 (2001), and Woods v. Cole, 181 Ill. 2d 512, 516
(1998)). De novo consideration means we perform the same analysis that a trial judge would
perform. Dass v.Yale, 2013 IL App (1st) 122520, ¶ 33 (citing Khan v. BDO Seidman, LLP,
408 Ill. App. 3d 564, 578 (2011)).
¶ 55 However, where a “trial court heard witness testimony and resolved conflicts of fact” and
“where findings of fact depend on the credibility of witnesses, *** a reviewing court will
defer to the findings of the trial court unless they are against the manifest weight of the
evidence.” Eychaner, 202 Ill. 2d at 251 (citing Chicago Investment Corp., 107 Ill. 2d at 124).
“A judgment is against the manifest weight of the evidence only when the opposite
conclusion is clearly apparent.” In re Parentage of J.W., 2013 IL 114817, ¶ 55 (citing In re
A.P., 2012 IL 113875, ¶ 17). In other words, under the manifest weight of the evidence
standard, a reviewing court will overturn a trial court’s findings only “ ‘when [the] findings
appear to be unreasonable, arbitrary, or not based on evidence.’ ” In re Kendale H., 2013 IL
App (1st) 130421, ¶ 28 (quoting Bazydlo v. Volant, 164 Ill. 2d 207, 215 (1995)).
¶ 56 II. Principles of Construction
¶ 57 “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
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565, 574 (2009) (citing First National Bank of Chicago v. Canton Council of Campfire Girls,
Inc., 85 Ill. 2d 507, 513 (1981)). “General rules of construction of written instruments apply
to the construction of trust instruments, whether they are contracts, deeds, or wills.” Storkan
v. Ziska, 406 Ill. 259, 263 (1950).
¶ 58 “When the language of the document is clear and unambiguous, a court should not
modify or create new terms.” Ruby v. Ruby, 2012 IL App (1st) 103210, ¶ 19 (citing Fifth
Third Bank, N.A. v. Rosen, 2011 IL App (1st) 093533, ¶ 24). “However, where the language
of a trust is ambiguous and the settlor's intent cannot be determined, a trial court may rely on
extrinsic evidence to aid construction.” Ruby, 2012 IL App (1st) 103210, ¶ 19 (citing Rosen,
2011 IL App (1st) 093533, ¶ 24). Language is ambiguous when it is reasonably susceptible to
more than one meaning. Thompson v. Gordon, 241 Ill. 2d 428, 441 (2011).
¶ 59 Additionally, trusts may contain a latent ambiguity. Koulogeorge v. Campbell, 2012 IL
App (1st) 112812, ¶ 24. “A latent ambiguity occurs where the language employed is clear
and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous
evidence creates a choice among two or more possible meanings.” Koulogeorge, 2012 IL
App (1st) 112812, ¶ 24 (citing Hays v. Illinois Industrial Home for the Blind, 12 Ill. 2d 625,
628 (1958)). “If a petition to construe a will or trust states facts that, if proven, show a latent
ambiguity, only then will a hearing with extrinsic evidence be held to determine the possible
existence of a latent ambiguity as alleged.” Koulogeorge, 2012 IL App (1st) 112812, ¶ 24
(citing In re Estate of Smith, 198 Ill. App. 3d 400, 402 (1990)).
¶ 60 III. Succession Clause
¶ 61 Plaintiff claims that, upon the death of Cherie Coles in 2007, he became successor trustee
under the terms of the trust. The succession clause of the trust provides:
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“In the case of the resignation, refusal or inability to act of the
successor trustee appointed to act hereunder, notice should be provided
to me, if living, otherwise to the beneficiaries who shall appoint
another successor trustee. If such notice is received by me and I am
unable to then appoint a second successor trustee, I declare that Gerald
McCarthy *** is hereby appointed second successor trustee. In the
event that neither Cherie Coles nor Gerald McCarthy are able to serve
as successor trustees and I am unable to then appoint an alternative
second successor trustee, I appoint [my attorney] to serve in their
stead.” (Emphasis added.)
¶ 62 We are not persuaded by plaintiff’s argument that he became successor trustee upon
Cherie Coles’ death. Under the plain language of the succession clause, plaintiff was to be
appointed successor trustee if (1) Reynolds received notice that the successor trustee was
unable to fulfill his or her duties, and (2) Reynolds was “unable to then appoint a second
successor trustee.” By the express terms of the document, both conditions had to occur
before plaintiff became successor trustee. While the first condition was satisfied when
Reynolds received notice of Coles’ death, there is no evidence in the record that indicates
Reynolds was unable to appoint a successor trustee before his own death. On the contrary,
the 2012 amendment indicates that Reynolds intended to amend the trust to appoint
defendant as successor trustee. Thus, under the plain language of the trust, plaintiff never
became successor trustee, if the 2012 amendment appointing defendant as successor trustee is
valid.
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¶ 63 As a result, the trial court was correct in stating that “without valid amendment to the
Living Trust [appointing defendant as successor trustee], Gerald McCarthy would be the
appointed second successor trustee,” and that “the ultimate issue here is whether the
handwritten changes to the 2006 Living Trust constitute a valid amendment.” (Emphasis
added.)
¶ 64 IV. Requirements of Trust Amendments
¶ 65 We next consider what constitutes a valid amendment. Under Illinois law, “[i]f a method
of exercising a power to modify is described in the trust instrument, the power can be
asserted only in that manner.” Whittaker v. Stables, 339 Ill. App. 3d 943, 946 (2003) (citing
Parish v. Parish, 29 Ill. 2d 141, 149 (1963)). In the present case, the amendment clause
states:
instrument or remove the successor trustee, by written notice delivered
to the successor trustee, and if this instrument is completely revoked,
all trust property held by the trustee shall be transferred and delivered
in total and revert back to me as my personal and/or individual
¶ 66 First, plaintiff claims that trial court improperly considered extrinsic evidence because the
trust’s amendment clause is unambiguous. Second, plaintiff argues that, under the plain terms
of the trust and Illinois law, a valid amendment requires (1) delivery to the successor trustee;
(2) a written, separate, and formal legal document; (3) a signature that is an “original[,]
separate[, and] recognized marking”; and (4) “an expressed intent or a clear expression of
amending.” We consider each contention in turn.
17 No. 1-13-2239
¶ 67 A. Ambiguity and Extrinsic Evidence
¶ 68 Before we may consider what is required for a valid amendment, we must consider
whether the trial court properly considered extrinsic evidence when it determined what
constituted a valid amendment. Specifically, plaintiff argues that the trust unambiguously
requires delivery to the successor trustee for an amendment to be valid and that, therefore,
the trial court improperly considered the attorney’s testimony when it held that delivery was
not required for a valid amendment.
¶ 69 Indeed, courts may not consider extrinsic evidence (i.e., evidence other than the language
of the trust) if the language of the trust is unambiguous. Ruby v. Ruby, 2012 IL App (1st)
103210, ¶ 19 (citing Rosen, 2011 IL App (1st) 093533, ¶ 24). “General rules of construction
of written instruments apply to the construction of trust instruments, whether they are
contracts, deeds, or wills.” Storkan v. Ziska, 406 Ill. 259, 263 (1950). Thus, “whether a [trust
or] contract is ambiguous is a question of law,” which we review de novo. Central Illinois
Light Co. v. Home Insurance Co., 213 Ill. 2d 141, 154 (2004) (citing Quake Construction,
Inc. v. American Airlines, Inc., 141 Ill. 2d 281, 288 (1990)).
¶ 70 As noted, language is ambiguous when it is reasonably susceptible to more than one
meaning. Thompson v. Gordon, 241 Ill. 2d 428, 441 (2011). Moreover, “[w]hen interpreting
a trust, a court[] *** examin[es] the plain and ordinary meaning of the words used in the
instrument within the context of the entire document.” Ruby, 2012 IL App (1st) 103210, ¶ 19
(citing Fifth Third Bank, N.A. v. Rosen, 2011 IL App (1st) 093533, ¶ 23).
¶ 71 Within the context of the entire trust document, the amendment clause is reasonably
susceptible to more than one meaning. The first reasonable meaning is that delivery is
required to validate an amendment. However, this meaning becomes questionable when read
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in light of the confidentiality provision in the final paragraph of the trust. The final paragraph
“It is my further intention that this document and its contents
remain confidential during my life and shall not be disclosed to anyone
including the successor trustee(s) named herein and the beneficiaries;
the original shall be kept in my possession and a duplicate of the
original shall be maintained by [my attorney] who, upon my death,
shall distribute copies to my successor trustee and the beneficiaries.”
Defendant argues that, in light of Reynolds’ intention to keep the document confidential and
undisclosed to “anyone, including the successor trustee(s)” during his lifetime, Reynolds
intended the delivery provision to apply only to the removal of the successor trustee.
Defendant argues that it is incongruous for Reynolds to have intended the delivery of
amendments when he also intended that the trust remain confidential for the remainder of his
life. We cannot say that this reading is unreasonable. Thus, as it is reasonably susceptible to
more than one meaning, the amendment clause is ambiguous. Accordingly, the trial court
properly considered extrinsic evidence to determine the requirements under the amendment
clause.
¶ 72 B. Requirements for Amendment
¶ 73 We next consider whether the trial court erred when it found that the only requirement for
valid amendments in the present case is that they be “in writing.” Plaintiff argues that, in
addition to being in writing, the amendment clause requires valid amendments to be
delivered to the successor trustee. Additionally, plaintiff argues that the trial court erred when
it found that, as a matter of law, a “writing” (1) does not need to be a separate formal legal
19 No. 1-13-2239
document; (2) does not need to contain a signature; and (3) does not need to contain “an
expressed[, i.e., explicitly stated,] intent or a clear expression of amending.” Finally, plaintiff
argues that the trial court erred when it found that the formalities of prior amendments do not
serve as binding models for subsequent amendments. We consider each of plaintiff’s
arguments in turn.
¶ 74 1. Delivery
¶ 75 Plaintiff argues that, in addition to being in writing, the amendment clause requires the
delivery of valid amendments to the successor trustee. As noted, the trial court considered
extrinsic evidence by considering the attorney’s testimony in arriving at its finding that the
amendment clause does not require delivery for a valid amendment. As a result, we must
“defer to the findings of the trial court unless they are against the manifest weight of the
evidence.” Eychaner, 202 Ill. 2d at 251 (citing Chicago Investment Corp., 107 Ill. 2d at 124).
Under the manifest weight of the evidence standard, a reviewing court will overturn a trial
court’s findings only “ ‘when [the] findings appear to be unreasonable, arbitrary, or not based
on evidence.’ ” In re Kendale H., 2013 IL App (1st) 130421, ¶ 28 (quoting Bazydlo v. Volant,
164 Ill. 2d 207, 215 (1995)).
¶ 76 We cannot say that the trial court’s finding is unreasonable, arbitrary, or not based on the
evidence. Reynolds’ attorney testified that Reynolds wished to remain “free and unfettered”
to amend the trust, and that the delivery provision was included to provide Reynolds a
mechanism to remove Cherie Coles as successor trustee “should the parameters of
[Reynolds’] romance [with Coles] change.” There is no evidence in the record that indicates
that Reynolds intended to require delivery for valid amendments other than the trust language
itself, which we have already determined to be ambiguous. As a result, the trial court’s
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finding that delivery is not required for a valid amendment was not against the manifest
weight of the evidence.
¶ 77 2. Legal Requirements of “Writings”
¶ 78 The trial court found that the amendment clause requires valid amendments to be “in
writing.” The trial court rejected plaintiff’s argument that, where an amendment clause
requires that a modification be in writing, “courts will interpret such language to require that
the writing contain a signature and be in the form of a [separate] ‘formal legal document.’ ”
The trial court also rejected plaintiff’s argument that courts require such writings to contain
“an expressed [i.e., explicitly stated] intent or a clear expression of amending.” In reviewing
a trial court’s conclusions of law, our standard of review is de novo. Eychaner, 202 Ill. 2d at
252 (citing Norskog v. Pfiel, 197 Ill. 2d 60, 70-71 (2001), and Woods v. Cole, 181 Ill. 2d 512,
516 (1998)). De novo consideration means we perform the same analysis that a trial judge
would perform. Dass v.Yale, 2013 IL App (1st) 122520, ¶ 33 (citing Khan v. BDO Seidman,
LLP, 408 Ill. App. 3d 564, 578 (2011)). We are not persuaded by plaintiff’s arguments and
the authorities he cites are distinguishable from the case at bar.
¶ 79 First, to support his argument that the writing must be in the form of a “formal legal
document,” plaintiff cites Northwestern University v. McLoraine, 108 Ill. App. 3d 310, 318
(1982). In Northwestern, the trust at issue required amendments to be made with “ ‘an
instrument in writing signed *** and delivered.’ ” Northwestern, 108 Ill. App. 3d at 313.
Finding that the words “ ‘instrument in writing’ ” meant a “formal legal document,” the court
explicitly considered what the decedent trustee believed the phrase to require. In so doing,
the court considered three valid amendments made over a period of 11 years that the
decedent trustee had made prior to the challenged amendment. Northwestern, 108 Ill. App.
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3d at 318-19. In other words, the Northwestern court did not establish a general rule that
where a trust requires an amendment to be made by an “instrument in writing,” that an
amendment must be made by a formal, legal document. Rather, the decision in Northwestern
considered the decedent trustee’s understanding of the phrase and the decedent’s past
conduct to ascertain that understanding.
¶ 80 Northwestern also does not support plaintiff’s claim that where a trust requires an
amendment to be “in writing,” courts will require that writing to contain a signature. Unlike
Northwestern, the trust in the present case does not explicitly require valid amendments to
contain a signature. Northwestern, 108 Ill. App. 3d at 313. Indeed, the Northwestern court
based its finding that a signature was required on the express language of the trust itself.
Northwestern, 108 Ill. App. 3d at 319.
¶ 81 Second, plaintiff argues that a valid amendment must contain an express intent to amend.
In so doing, plaintiff appears to argue that an amendment must state in words that it is an
“amendment,” and that crossing out provisions and writing above those provisions is
insufficient to express an intent to amend. He argues that without such express intent, “no
reasonable person would interpret the 2012 alleged amendment as an amendment” without
resorting to extrinsic evidence. To support this claim, plaintiff cites the 1938 case of Barber
v. Barber, 368 Ill. 215, 221 (1938).
¶ 82 This argument is unpersuasive. In Barber, the Illinois Supreme Court considered whether
a decedent testator designated a particular document as his will. Barber, 368 Ill. at 220. After
quoting the section of the statute that outlines the requirements for wills, the supreme court
stated:
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“The foregoing section does not require any specific form of words in the drafting of
a will. An instrument in writing, irrespective of its informality, made with the
expressed intent of giving a posthumous disposition to a person's property is
testamentary in character, and, if duly executed, is entitled to admission to probate.
[Citations.] Neither a formal attestation clause nor even words in addition to the
signatures of the witnesses are prerequisites to a valid execution of a will. [Citations.]
A clearly expressed wish of the testator in his will is equivalent to a positive direction
or command. [Citation.]” (Emphases added.) Barber, 368 Ill. at 220-21.
While the Barber court did state that “[a]n instrument in writing [requires an] expressed
intent,” it did not prescribe how that intent must be expressed. Barber, 368 Ill. at 220. Indeed,
the court reasoned that no “specific form of words” is required to express the intent that the
document is a will. Barber, 368 Ill. at 220. Moreover, the Barber court’s reasoning
depended entirely on the text of a statute not applicable to trust amendments. Barber, 368 Ill.
at 220. Even if Barber was applicable to the trust at bar, no specific words would be required
to demonstrate that a document is a trust amendment.
¶ 83 Therefore, the trial court did not err in the case at bar when it found that a “writing” (1)
does not need to be a separate formal legal document; (2) does not need to contain a
signature; and (3) does not need contain “an expressed[, i.e., explicitly stated,] intent or a
clear expression of amending.”
¶ 84 3. Previous Amendments as Binding Models
¶ 85 Finally, plaintiff also argues that the 2010 amendment “serves as the model for
subsequent amendments.” (Emphasis added.) In support of this claim, he cites the
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Northwestern court’s consideration of the decedent trustee’s prior amendments when it
determined the requirements of a valid amendment. Northwestern, 108 Ill. App. 3d at 318-19.
¶ 86 While the Northwestern court did consider prior amendments in its determination of what
constituted a valid amendment, the Northwestern court never held that prior amendments are
binding models or the only evidence that trial courts may consider when determining the
validity of subsequent amendments. Northwestern, 108 Ill. App. 3d at 318-19.
¶ 87 Accordingly, the trial court did not err when it found that the formalities of the 2010
amendment were not required for the subsequent 2012 amendment to be valid.
¶ 88 CONCLUSION
¶ 89 In sum, (1) under the plain language of the trust, plaintiff did not become successor
trustee upon the death of Cherie Coles because Reynolds was never incapable of appointing a
second successor trustee; (2) the trial court properly considered extrinsic evidence since the
trust’s amendment clause is ambiguous; (3) the trial court’s finding that valid amendments to
this particular trust need to be “in writing,” but do not need to be delivered to the successor
trustee was not against the manifest weight of the evidence; and (4) the trial court’s finding
that valid amendments “in writing” for this trust do not need to be a separate formal legal
document, do not need to contain a signature, do not need to contain an “express intent” of
amending, and do not necessarily need to comply with the formalities of prior amendments
was not erroneous.
¶ 90 Affirmed.