Landheer v Landheer (IL)

383 Ill App 3d 317, 891 NE2d 975, 322 Ill Dec 684 (3rd D 2008).

Facts: Herbert and his wife had three sons, Arlyn, Mark, and Warren, and owned two large farms containing over 300 acres of land in total. In 1996 Herbert and his wife created a trust which provided that upon their mutual deaths the interest in one of the farms would be transferred from the trust to the Warren, along with other provisions relating to the land. The trust allowed for its own amendment by either of the grantors in writing when that writing was provided to the trustee. Herbert's wife passed away in 2001, and Herbert was diagnosed with cancer shortly after. In 2003 he signed a document entitled "Last Will and Testament", which Warren help to write and prepare. The document provided for limits on the worth attached to the land, various purchase options among the children and divisionary rights not listed in the original trust.

Arlyn and Mark brought action against Warren for declaratory judgment that the document was not an effective amendment to the trust because it was not prepared by an attorney. The trial court ruled in favor of Arlyn and Mark, citing the Consumer Fraud and Deceptive Businesses Practice Act: "[t]he assembly, drafting, execution, and funding of a living trust document or any of those acts by a corporation or a nonlawyer is an unlawful practice within the meaning of this Act." 815 ILCS 505/2BB. The trial court found that any such modification, either by Herbert or Warren, would have been unlawful under the act. Warren appealed.

Holding: Affirmed. On appeal, the defendants argued that Section 2BB does not specifically prohibit a non-attorney from amending a trust and even if it did, Warren was a mere scrivener of Herbert's efforts. The court disagreed, noting that the language of the statute clearly prohibited a non-attorney from drafting any living trust document, which clearly applied to amendments. "We find, therefore, that the plain language of section 2BB prohibits a nonlawyer from drafting a document that amends a living trust for another person." However, the appellate court also declined to expand the prohibition beyond drafting of documents, curtailing the broad view of the trial court. "[T]he statute does not prohibit an individual from preparing his own living trust documents, even if that individual is not an attorney. To rule to the contrary, as the trial court apparently did, would be to ignore the entire purpose of the Act…" Even though the trust might have allowed, by its language, for less stringent amendment requirements, it must still comply with the laws of the state. The court further held that because Warren had actively participated in what to add to the purported amendment, he could not be considered a mere scrivener.

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By: ATG Underwriting Department | Posted on: Wed, 11/05/2008 - 1:52pm