The Illinois Appellate Court upholds a trial court's decision allowing a guardian to revise her ward's trust after a guardian ad litem's report found that the ward's neighbors, who were also the trust's remainder beneficiaries, may have exercised undue influence over the ward. In Re Estate of Bozenna Michalak (Ill.App.Ct., No. 1-09-0976, Aug. 20, 2010).
In November 2006, Bozenna Michalak created a revocable trust and named her neighbors, the Kaletas, as the trust's sole beneficiaries upon her death. Ms. Michalak also named Robert Kaleta as her successor trustee. Shortly thereafter, the Chicago police contacted Ms. Michalak's niece, Jacqueline Zagorski, after they noted several suspicious transactions involving Ms. Michalak's bank accounts. After a doctor certified that Ms. Michalak was suffering from Alzheimer's disease, Ms. Zagorski obtained appointment as Ms. Michalak's guardian and the court appointed attorney Marcella Horan as Ms. Michalak's guardian ad litem. After Attorney Horan submitted a report suggesting that the Kaletas had exercised undue influence over Ms. Michalak, Ms. Zagorski filed a petition pursuant to the Illinois Probate Act to amend Ms. Michalak's trust to remove the Kaletas as beneficiaries and to eliminate Mr. Kaleta as a successor trustee.
After a five-day trial, the trial court gave Ms. Zagorski the authority to amend the trust to remove the Kaletas. The Kaletas appealed, arguing that the Probate Act allowed a court to amend a ward's trust only in order to adjust to changes in tax law. The Kaletas also argued that the trial court improperly admitted hearsay testimony from Attorney Horan regarding Ms. Michalak's wishes, and that Attorney Horan's report exceeded the scope of her authority as guardian ad litem.
The Illinois Appellate Court, Fifth Division, upholds the trial court's ruling. The court finds that although the Probate Code specifically mentions a change in tax law as one reason to amend a ward's trust, there is nothing in the Code limiting the power to amend a trust to cases that involve taxes. Although the court finds that hearsay may be considered in making such investigations and determinations, it reviews all of the evidence before the trial court and finds that, even if the court had excluded the hearsay testimony in Attorney Horan's report, it still would have had sufficient evidence to rule in favor of Ms. Zagorski.
For the full text of this decision, go to: https://www.state.il.us/court/Opinions/AppellateCourt/2010/1stDistrict/August/1090976.pdf
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