Chuhak & Tecson wins ‘doctrine of election’ estate case at Illinois Supreme Court

April 9, 2013

In a case of first impression argued by David Feinberg at Chuhak & Tecson, P.C., the Illinois Supreme Court has ruled that the doctrine of election pertaining to last wills is not necessarily the last word in court challenges to a living trust amendment.

The 6-1 judgment reversed two lower court decisions in Estate of Robert E. Boyar v. Grant Dixon, 2013 IL 113655. The case was presented by Chuhak & Tecson principals David Feinberg, Barry Feinberg and Daniel Fumagalli, and marked the first time the Illinois Supreme Court has dealt with the doctrine of election in almost 60 years.

In its April 4, 2013, opinion, the Supreme Court reversed both the circuit and appellate court decisions applying the doctrine of election as it relates to wills to an amendment to a trust. The upper court departed from the earlier judgments of the lower court in ruling that Boyar v. Dixon should not have been based on the doctrine of election or dismissed in circuit court. It ruled the appellate court also was in error in upholding the dismissal.

Dismissal in both proceedings had been based on a bright line interpretation of the doctrine of election, a case law principle that precludes a beneficiary to a will from contesting any part of the will if property has already been received.

“In this instance, our client had received nominal personal property that was owned by his father’s revocable living trust,” said David Feinberg, who argued the case. “Both the circuit court and appellate court ruled that because he had accepted the benefit, the client was foreclosed from contesting any part of his father’s trust, including an amendment that had nothing to do with property issues.”

Drafted less than a month before the death of the testator and without the knowledge of the beneficiaries, the amendment in question involved the designation of a new successor trustee. The amendment replaced both the Northern Trust and the testator’s son, Robert A. Boyar, as co-trustees, with a neighbor, Grant Dixon, as sole trustee. In addition, the amendment also provided that a majority of the income beneficiaries of the trust could not remove Grant Dixon as sole trustee.

Feinberg argued, and the court agreed, that there was no inconsistency between Boyar’s and other family members’ receipt of personal property and his challenge to the amendment naming a new trustee—and that in any case, the doctrine of election should be applied on a case-by-case basis rather than as a bright line rule.

Additionally, Boyar would have had to be aware of all the facts and circumstances relating to the case in order for the doctrine of election to apply properly, Feinberg argued. The specific facts and circumstances, including the contents of the trust, had not yet become known when Boyar received the personal property from his father’s trust.

“We contested the amendment because in Robert’s view, his father, who was suffering from dementia, lacked the mental capacity to execute this document,” Feinberg said. “Our client believes that his father did not want this person to be the trustee and was unduly influenced into changing the trusteeship.”

The Supreme Court decision remanded the case to Cook County Circuit Court for further proceedings.

“We really are feeling quite a sense of accomplishment,” Feinberg said. “From day one we felt we were in the right, that this case should not have been dismissed on the doctrine of election, that it should have been heard on its merits.”

“Any time you’re talking about overturning a lower court ruling, it’s not an easy thing to do,” said Fumagalli, who was part of the Chuhak & Tecson team preparing Boyar. “Historically, it’s a long shot because it doesn’t happen that often. I thought we had the better argument in the briefs and the oral argument before the court, but one never knows. There are seven justices who get to weigh in on it.”

Boyar v. Dixon marked the first time the Illinois Supreme Court heard a case in which the doctrine of election was applied to an amendment to a trust. The outcome suggests new thinking on this issue, Feinberg said.

“The Illinois Supreme Court is clearly indicating to the lower courts that it is not going to apply the doctrine of election unilaterally in the context of wills, trusts or otherwise,” Feinberg said. “Rather, the court seems to imply in Boyar that the doctrine must be applied based on equity fairly, looking to the totality of the facts and circumstances of the individual case to decide whether or not the doctrine should be applied.”

The last time the state Supreme Court dealt with the doctrine of election at all was in 1955.

“The doctrine has been applied in a very draconian fashion,” Fumagalli said. “Having started out as an equitable doctrine, it became somewhat rigidly applied by the courts.

“Going forward, this introduces a strong measure of fairness.”