In the case of In Re ESTATE OF BOYER, 2013 IL 113655, the Illinois Supreme Court deals with the old and little used legal doctrine of election in probate law. The case involved an man living in the Alzheimer’s unit in a nursing home in La Grange Park, and suffering from dementia who passed away in 2010. The decedent, Robert Boyer, had many years earlier executed a living trust for the purpose of providing for his children after his death. The trustees of that trust were designated to be the decedent’s son Robert along with the Northern Trust Bank as co-trustee. The decedent also executed a will which provided that all of the assets of the estate not already designated as trust property should be distributed as trust property. This type of a will is commonly referred to as a “pour over will”, meaning that any property not designated as trust property at the time of death “pours over the trust and is caught by the will”, which then places it back into the trust. The trust in this case distributes all the property of the trust to the children in equal shares.

A short time after the decedent’s passing, his children got together and divided up some items of the personal property among themselves, which was consistent with the terms of the trust. A short time afterwards, Robert, the trustee, and the other children discovered that their father, in the late stages of Alzheimer’s a month before his death, executed an amendment to the trust, designating a lawyer by the name of Grant Dixon as the trustee under the trust. Robert challenged this amendment, and Grant Dixon filed a motion to dismiss based upon the legal doctrine of election, alleging that because Robert had already accepted some personal items under the trust, he would now be barred from challenging any provision of the trust, whether or not that provision related to what he had received. The motion was granted in the circuit court and affirmed in the 1st District Appellate Court and then brought before the Illinois Supreme Court.

The Supreme Court pointed out that the doctrine of election only applied in cases where a legatee is on a position to accept two or more inconsistent benefits under a will, and accepts one such benefit, thereby barring him from receiving the other. In this case, there are no inconsistent benefits to be received by the legatees under the trust. No matter who the trustee is, Robert is entitled to the items of personal property he received. Robert’s challenge of Grant Dixon as trustee bears no relation to his right to receive the benefits that he did. The Supreme Court reversed the rulings of the circuit court and the appellate court and remanded the case back to the circuit court to deiced the issue of the validity of the amendment.