Legal Question in Wills and Trusts in Illinois

My parents set up two separate trusts, one for each of them and also separate wills. My mother after setting up these documents developed dementia a couple of years later. My father influenced my mother after the development of her dementia to add amendments to her trust and therefore had her to take out a couple of her children to which she had originally written in her original trust and will, He also changed his trust and will under undue influence by one of my siblings to disinherent a couple of their children. This was done at a time when he was was under doctors care for a number of illnesses, including brain trauma. A guardianship process was initiated by one of their children in an attempt to get them from under the undue influence of their son. The courts then had my father declared mentally incompetent as well as my mother. They both became wards of the state under an agreed order. My mother was trustee of her trust and my fathers. Her trust stated that she was not deemed mentally incompetent until two doctors certified in writing that she was mentally incompetent. One physician certified in writing that she was unable to handle her affairs. The guardian ad litem influenced the successor trustee to resign from the trust although my mother would have still been the active trustee because the guideline of the trust had not been followed as to two doctors certifying in writing according to her trust that that would be when she would be considered mentally incompetent or incapacitated. The court report stated that she was deemed mentally incompetent by 1 doctor and the report of the guardian ad litem. The GAL incorporated this trust into the guardianship and after co-ercing the successor trustee to resign, although I had not become the successor trustee yet to resign, because technically my mother was still the trustee. My sister would have then become successor trustee after me and then my other brother who resides out of town. This trust was set up with three successor trustees. The paperwork was written up with my resignation and then my sister who was successor trustee after me submitted this trust to the jurisdiction of the court. Although neither of us were successor trustees yet because the guidelines of the trust had not been followed and my mother had not been certified by two physicians as being mentally incompetent. As a result a corporate trustee was appointed and have served in that capacity for a year now. My mother has since passed away. Is it legal for the corporate trustee to remain in that capacity? Also the amendments to the trust and the codicil to the will is it legal because my mother was mentally incompetent. Also the corporate trustee has taken over my fathers trust because my mother was also his trustee. But how can I resign as successor trustee if I had not served in that capacity yet because technically my mother was still trustee of both trusts. We are in the process of opening up the descedent's estate. Under what guidelines should we proceed? And is this Corporate Trustee reversible because this did not legally follow the guidelines of the trust. Are there any statue of limitations that can reverse this? I am not concerned about the guardianship my father is under because he is in need of a guardian. He currently has co- guardians of the person and the financial institution is guardian of his estate (which was not funded in the trust) and they are co-trustees of the trust, along with my sister, who has no powers to act with them, except for the ability to petition the court if she feels that the management of the trust is unsuitable. In any event that this corporate trustee cannot be removed how does the distribution of the will and trust get distributed? The original will is missing, but they have a copy. The original trust is also missing because it was believed to be stolen by the sibling that encouraged my parents to disinherent his other siblings. My father created 3 amendments to his trust and no originals have been located, nor have the originals of his codicils been located either. Please advise


Asked on 9/15/09, 10:37 am

1 Answer from Attorneys

Steve Raminiak Law Offices of Steve Raminiak, P.C.

You seem to be primarily concerned about the following.

1) Removal of the corporate trustee/guardian for your father. The events that you've described are uncommon but not unusual. The Trust documents may provide you with methods to remove Trustees. Also, you may be able to make an argument in a different Court about the appointment of corporate Trustees. It's also possible that you may be able bring worthwhile pleadings in the Probate Court. I recommend that you consult with an attorney who can provide you with some options.

2) Attacking the amendments. This is easier said than done. It is very difficult to prove that a person lacked the capacity to understand that he was changing his estate plan. Similarly, it is quite difficult to prove that a person's own free will was so overpowered by another that he had no choice but to follow the undue influence of someone else. Difficult, but not impossible with the right set of circumstances. Since you are the child of these disabled persons, it does put you in a favorable position in launching these attacks. I suggest that you consult with an attorney to discuss the strength of your case, as well as potential pitfalls inherent in such a lawsuit. Be advised, an adjudication of incompetency is helpful in pursuing such a case, but it is usually not a crucial factor.

Feel free to give me a call if you'd like to talk about this.

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Answered on 9/21/09, 5:13 pm


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