In re Estate of Rivera , 2018 IL App (1st) 171214 ( 2019 )

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Appellate Court Date: 2019.03.18
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In re Estate of Rivera, 2018 IL App (1st) 171214Appellate Court In re ESTATE OF INEZ RIVERA, a Disabled Adult (The Northern
Caption Trust Company, as Both Plenary Guardian of the Estate of Inez
Rivera, a Disabled Adult, and Trustee of the Inez Rivera Trust,
Petitioner-Appellee; Jennifer M. Vega, as Plenary Guardian of the
Person of Inez Rivera, a Disabled Adult, Respondent-Appellee; and
Martin A. Rivera and All of His Descendants Other Than Jazlyn
Rivera, Respondents-Appellants).
District & No. First District, Fourth Division
Docket No. 1-17-1214
Filed June 21, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 13-P-000438; the
Review Hon. Caroline G. Quinn, Judge, presiding.
Judgment Affirmed.
Counsel on Linda S. Kagan, of Chicago, for appellants.
Appeal
Celeste E. Kralovec and Lynne M. Kralovec, of Kralovec Law Group
LLC, of Chicago, for appellee the Northern Trust Company.
Paul S. Franciszkowicz and Kathryn T. McCarty, of FMS Law Group
LLC, of Chicago, for other appellee.
Panel JUSTICE McBRIDE delivered the judgment of the court, with
opinion.
Presiding Justice Burke and Justice Gordon concurred in the judgment
and opinion.
OPINION
¶1 Martin A. Rivera and 8 of his 11 children appeal from a trial court order authorizing an
amendment to the estate plan of his third daughter, 23-year-old Inez Yolanda Rivera, who is
permanently and profoundly disabled by birth injuries. Inez’s estate is sizeable after her receipt
of a $12 million personal injury settlement in 2003. Because of her physical and cognitive
delays, Inez has never married, has not had or adopted children, and has never had
testamentary capacity. Inez’s initial estate plan followed the rules of intestacy and benefitted
both parents and all full- and half-siblings in equal shares, but after a “best interests” hearing
pursuant to Howell, the trial court authorized the guardian of Inez’s estate, the Northern Trust
Company (Northern Trust), to amend the plan. Estate of Howell v. Howell, 2015 IL App (1st)
133247, ¶ 41, 36 N.E.3d 293 (finding estate coguardians were statutorily empowered to act in
an adult ward’s best interests, which could include deviating from rules of intestacy in crafting
an estate plan, and remanding for an evidentiary hearing to determine the ward’s best
interests). The current plan excludes Inez’s father and eight paternal half-siblings and benefits
Inez’s mother, sister, and three maternal half-siblings. The appellants contend it was error to
allow the amendment because the Probate Act of 1975 (Probate Act) (755 ILCS 5/1-1 et seq.
(West 2016)) does not authorize amending a trust to deviate from intestacy, Howell is not on
point, and, in any event, the hearing evidence should have been subjected to the
clear-and-convincing standard instead of the preponderance standard. Howell, 2015 IL App
(1st) 133247.
¶2 Appellant Martin, born on August 14, 1967, and Inez’s mother, appellee Jennifer M. Vega,
née Garcia, born on May 3, 1978, began dating on an unspecified date when he was in his early
twenties and she was about 13 years old. We calculate the age gap between Jennifer and Martin
to be 10 years, 8 months, and 19 days. Martin had already fathered two children with two
different women. His daughter Salina Castaneda was born on September 1, 1987, and his
daughter Yolanda Rivera Frederick was born on May 8, 1991. Jennifer began living with
Martin and became pregnant by him when she was 15 years old. Their first daughter, Inez, was
born on January 1, 1995, when Jennifer was 16 years old. Inez was deprived of oxygen at birth
and has consequently suffered from cerebral palsy, autonomic instability, seizure disorder,
encephalopathy, and severe developmental delays. These injuries rendered Inez legally blind
and incapable of walking, talking, sitting up on her own, or feeding herself. Inez is able to
move her hands but cannot pick up anything or get herself out of bed. While still a young child,
Inez became dependent on a gastrostomy feeding tube and a tracheostomy breathing tube. She
cannot be left unattended and requires skilled assistance 24 hours a day. Within a year of Inez’s
birth, Martin and Jennifer had a second daughter together, Jazlyn Allison Rivera, who was
born November 27, 1995. Their third child together, Martin Peter Rivera, was stillborn on
October 18, 1996. Martin and Jennifer married on March 24, 1998, when he was 30 years old
and she was 19 years old, and they divorced less than 8 years later, on November 8, 2005.
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While Martin was married to Jennifer, he had two children with Lisa Marie Luman. Fabian A.
Luman was born on December 20, 2002, and Alexia Rivera was born on March 19, 2004. After
his divorce from Jennifer, Martin had four more children with Lisa and another woman,
Claudia Cabrales. Martin had Gianna Rivera with Claudia on March 1, 2005, Alessandra
Rivera with Lisa on December 6, 2006, Analya Rivera with Lisa on August 2, 2007, and Enaya
Rivera with Claudia on December 10, 2009.
¶3 The record indicates that when Inez was a minor, Northern Trust was appointed as the
guardian of her estate in conjunction with her receipt of the personal injury settlement. The
estate is the legal owner of Inez’s home, stock, and cash. Shortly after Inez’s eighteenth
birthday in 2013, Jennifer petitioned the court to adjudicate Inez as a disabled person, appoint
Jennifer as the sole guardian of Inez’s person, and appoint Northern Trust as guardian of her
estate. Martin did not oppose the petition, and it was granted.
¶4 In 2015, after Inez’s twentieth birthday, Northern Trust petitioned for authority to execute
estate planning documents and fund a revocable trust and pour-over will so that upon Inez’s
death, her remaining assets could be distributed to her heirs without incurring the costs and
delays of a probate estate. Northern Trust specified that the proposed estate plan would not
affect Inez’s access to her assets during her lifetime and that if the proposed plan were adopted,
it could be changed at any time, either by the court, or by Inez, if she were later determined to
have testamentary capacity. The estate plan, which was proposed to and approved by circuit
court Judge Carolyn Quinn on May 19, 2015, provided for Inez’s parents and siblings (both
full and half) to be equal heirs.
¶5 At the time that Inez’s initial estate plan was being considered and approved, an appeal was
pending in Howell, 2015 IL App (1st) 133247, which questioned whether a guardianship court
could consider an estate plan deviating from intestacy for a disabled young adult who never
had testamentary capacity. Like Inez, the disabled adult in Howell had received compensation
for personal injuries. Under the rules of intestacy, most of the disabled ward’s $11 million
estate would be distributed upon his death to the father, whom it was alleged had never lived
with him, never assisted in his care, visited only occasionally, and contributed an insignificant
amount toward his support and comfort, and the father’s 10 other children, whom it was
alleged had never met the disabled ward. Howell, 2015 IL App (1st) 133247, ¶ 1. Relying on
the “substituted judgment” doctrine, his mother and Northern Trust, who were the coguardians
of his estate, argued that the disabled adult would want his assets to go to his mother, who was
his full-time caretaker, rather than also being shared under intestacy rules with his father and
10 half-siblings. Howell, 2015 IL App (1st) 133247, ¶ 8. We reversed the trial court’s
determination that the only possible plan was to follow intestacy. Howell, 2015 IL App (1st)
133247, ¶ 41. We remanded for an evidentiary hearing, explaining that “reading the relevant
sections of the Probate Act together, the preferred approach to estate planning is to follow the
ward’s subjective wishes, to the extent those wishes can be ascertained, but the overriding
principle is to act in the ward’s objective ‘best interests.’ ” The relevant provisions of section
11a-18 of the Probate Act were subsections (a) and the very next paragraph, (a-5), both of
which concern duties of an estate guardian, and will be set out as relevant below. 755 ILCS
5/11a-18(a), (a-5) (West 2016).
¶6 After Howell was filed on June 19, 2015, Northern Trust met with Jennifer and Martin
about the possibility of deviating from intestacy in Inez’s estate plan if the guardianship court
determined that this was in her best interests. In December 2015, Northern Trust requested
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direction from Jennifer, in her capacity as the guardian of Inez’s person, regarding Inez’s
possible wishes for her estate plan. Jennifer recommended that the sole beneficiaries of Inez’s
estate plan be five individuals: the full sister, Jazlyn, who had lived with Inez until moving out
as an adult; the three young half-sisters, Samantha, Jessica and Emma, who continued to live
with Inez; and the parent who had always been her caretaker, Jennifer.
¶7 That same month, on December 10, 2015, Martin returned to the domestic relations
division of the circuit court, where his marriage to Jennifer had been ended by a judgment
order in 2005, and filed a petition for visitation with Inez. In this 2015 petition, Martin alleged,
“The parties had an informal visitation agreement that took place at [Jennifer’s] residence but
recently she told [Martin] that she was not going to allow him any more visitation with [Inez].”
Martin further alleged that Inez’s physical condition had deteriorated to the point that she was
in extremis (in her last illness or near death), it was impracticable for her to be transported for
visitation, and that he had a right to visit his child. That same day, Jennifer advised the
domestic relations judge that Inez had been adjudicated a disabled adult and that the probate
division of the circuit court had jurisdiction over visitation questions. The domestic relations
judge agreed with Jennifer and ordered that Martin’s petition be heard in the probate division.
The probate division judge reappointed Peter Schmiedel as the guardian ad litem in this matter
and entered a briefing schedule.
¶8 Next, in early 2016, Northern Trust filed a verified petition in the probate division, seeking
judicial direction regarding further estate planning on Inez’s behalf.
¶9 Before proceeding to a best interests hearing on Northern Trust’s petition, the parties
addressed Martin’s visitation petition. Jennifer filed a section 2-619 motion to dismiss
Martin’s visitation petition (735 ILCS 5/2-619(a)(9) (West 2014)) and first argued that the
facts militated against allowing Martin to have visitation. She contended that Martin had
consistently chosen to have only sporadic and minimal contact with Inez during her lifetime
regardless of whether she was undergoing one of her numerous and long hospitalizations,
where he had the unimpeded ability to visit, or was at home with Jennifer. For instance, when
Martin visited Inez at home in October 2015, he had not seen her in two-and-a-half years.
Jennifer contended that the few visits that did occur had been initiated by her and that Martin’s
new interest in visitation was motivated by the possibility of his disinheritance. Jennifer noted
that Martin also made no effort to contact or visit their 20-year-old daughter, Jazlyn, who was
residing in her own apartment. Jennifer’s second point was that Inez did not know Martin and
was not aware of him. Jennifer also said she was afraid of Martin because of his history of
violence and abuse, which included criminal convictions, time in the penitentiary, and beating
her when she was nine months pregnant in 1996 to the point that their son was stillborn a week
later, and Jennifer, Inez, and Jazlyn had to flee to a shelter despite Inez’s medically precarious
condition. These facts led Jennifer to state that it was not in Inez’s best interests to be visited by
Martin. Jennifer also contended that, as the sole legal guardian of Inez’s person, Jennifer, not
the court, had authority to make decisions concerning visitation and that Martin had no
standing to assert a right of visitation with his adult daughter. The guardian ad litem informed
the court that he made a home visit and found, as he had during previous home visits with Inez,
that she was receiving excellent care; that, during a telephone interview, Martin admitted to
infrequent visits with Inez but blamed the situation on Jennifer; and that it was unnecessary for
the court to determine why Martin’s visits were sporadic because Martin had no standing to
challenge Jennifer’s visitation decision. After oral arguments in March 2016, the probate
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division judge denied Martin’s petition for visitation due to his lack of standing, and it was
agreed that any future discussion about visitation would be handled by counsel rather than
direct communication between Jennifer and Martin. During the hearing, the judge emphasized
that the parents should not request or refuse visitation out of a belief that they would influence
the court’s ruling on the estate planning issue because the court would be taking a
comprehensive look at Inez’s entire life.
¶ 10 The parties next prepared and filed legal briefs regarding the best interests hearing that
would be conducted over two days in October 2016.
¶ 11 Jennifer was the first witness at the hearing regarding Inez’s family life. Jennifer testified
that she and Inez were residing in Orland Park, Illinois, with Jennifer’s husband, Emanuel
Vega Jr. and their three daughters, Samantha, Jessica, and Emma Vega. Inez had to spend a
month in the hospital after she was born. Jennifer and Martin’s relationship had been “off and
on,” and at the time he was still dating Karen Varella, the mother of his second child, Yolanda.
Martin did not visit Inez on his own, and went to the hospital only once or twice when Jennifer
“begged” him for a ride so she would not have to take the bus as she “often” did during that
month. When Inez was discharged, Jennifer took the baby home to her mother’s house. Martin
and Jennifer continued their “off and on” relationship and subsequently had Jazlyn and Martin
Peter. Martin Peter was stillborn because Martin “became physical,” “would always hit”
Jennifer, and was “abusive.” Martin hurt Jennifer in front of Jazlyn and Inez, and he struck
Jazlyn in Inez’s presence. Martin, however, never hurt Inez.
¶ 12 Jennifer broke off the relationship and divorced Martin when she and Jazlyn moved to
Orland Park in 2005. Jennifer was granted sole custody of Inez. Martin was not required to pay
monthly support for Inez because of her settlement; however, he has never provided any
monetary support for her or given her any Christmas or birthday cards or any gifts. Martin did
make some of the court-ordered monthly payments toward Jazlyn’s support, but then he
stopped.
¶ 13 Inez needs care every day, 24 hours a day, which she receives primarily from a registered
nurse. She also has weekly or monthly visits from a teacher, an occupational therapist, and a
physical therapist. Jennifer takes sporadic eight-hour nursing shifts, and otherwise cares for
Inez. Inez smiles when she hears her mother’s voice and can signal when she is hungry.
Jennifer has received training that enables her to replace Inez’s “G-tube,” give medication, and
change and bathe her daughter. Regardless of the time of day or night, Inez needs to be moved
into a different position at least every two hours so that her sensitive skin does not break down.
Martin has never received any training to care for Inez, and he has never spent time alone
caring for her. Many years ago, Jennifer agreed to bring Inez to a mall for some visitation time
with Martin, and although they waited for him for two hours, Martin did not show up. The
record includes an order dated June 7, 2010, which appears to have been handwritten by
Martin’s attorney, indicating Martin would have visitation with Inez and Jazlyn every other
Saturday “in the food court of the Orland Park Mall, by Taco Bell, from 12:00 pm to 4:30 pm.”
Other than the 2005 judgment order dissolving the marriage, giving Jennifer custody and
Martin visitation with Inez and Jazlyn, this 2010 order was the only order regarding visitation.
Jennifer did not deny Martin the opportunity to come visit Inez at home and she used to ask
him to visit his daughter there, but Martin chose to visit Inez only “[w]hen he feels like it,”
which was less than once a year, and only for 15 or 20 minutes at a time. However, after the
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meeting with Northern Trust regarding a revision to Inez’s estate plan, Martin indicated he
wanted visitation.
¶ 14 Inez has a “hospital quality” room on the ground floor of the Orland Park residence, and
the kitchen doorway and counter have been modified so that she can spend time with the
family in the kitchen. Jennifer’s husband, who has not been included in the estate plan, spends
time with Inez every day. Inez has a “[t]rue friendship” with her little sisters Samantha, Jessica,
and Emma, and also a good relationship with her sister Jazlyn. Jazlyn went away to boarding
school for two or three years of high school and was at home again between the ages of 16 and
18, before moving out as an adult. Since she has moved out, Jazlyn still visits Inez and calls to
ask about her. Jazlyn is now learning how to take care of Inez.
¶ 15 One of Martin’s daughters with Claudia, Anaya, has never visited Inez, and Jennifer has
never met Anaya. Martin’s daughter Gianna and Gianna’s mother, Claudia, lived with Jennifer
for a couple of months because the women “became friends, and [Jennifer] felt sorry for
[Claudia].” Other than staying in the house, Claudia did not have contact with Inez. Jennifer
was unsure if she knew Lisa’s daughters Analya or Alexia or if they had ever visited Inez.
Martin brought Lisa’s other children “sporadically,” specifically, Alessandra came to visit Inez
once or twice, and Fabian came three or four times. Their last visit had been in October 2015, a
year before the best interests hearing. Martin’s oldest child, Salina, has never met Inez.
Yolanda had last visited Inez five years ago, but started calling after Jennifer and Martin met
with Northern Trust about revising the estate plan.
¶ 16 Neither Martin nor any of these other children have attended any of Inez’s school events,
such as her graduation from middle school, and Martin has never attended the Individual
Education Planning meetings about Inez’s schooling. Martin had never taken custody of Inez
to provide care for her and never assisted with her physical or occupational therapies.
¶ 17 As Inez’s mother and the legal guardian of her person, Jennifer recommended that she and
her daughters be included in Inez’s estate plan because they have maintained relationships with
Inez, but that Martin and his children with other women should be left out because they never
had relationships with Inez.
¶ 18 On cross-examination, Jennifer said she was uncertain about the dates, but that after Inez
came home from the hospital, Jennifer and the baby moved back and forth between her
mother’s house and either Martin’s mother’s house or an apartment. After Jennifer and Inez
moved into the house in Orland Park in 2005, Martin only visited for a couple of nights and
never lived there. Those visits stopped 9 or 10 years before the best interests hearing, and
Jennifer and Martin’s sexual relationship stopped in 2006. The divorce was granted on grounds
of irreconcilable differences, not physical cruelty, but there were “a lot” of times when Jennifer
had to protect herself from being struck by Martin, and the neighbors, not Jennifer, would call
the police. Jennifer pressed charges against Martin once, but the charges were dropped. Inez
was first assigned caregivers after she was discharged from a hospital stay when she was
almost three years old and had “a trach and G-tube.” Martin was “in and out of jail” during this
time period and did not assist with Inez’s care. Martin helped Jennifer bathe Inez once, when
she was still in the hospital after her birth, and he might have changed her diaper once. Inez is
not able to make choices. When asked whether Jazlyn and Yolanda had a friendship, Jennifer
answered that Martin and Yolanda’s mother, Karen, had an agreement that “he was supposed
to watch her,” so Jennifer babysat Yolanda when the children were little and the family did not
have the house in Orland Park. Martin, Yolanda, and his other children would sometimes come
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visit; Yolanda came for a visit by herself once when Jazlyn was away at school, and her last
visit was in 2011.
¶ 19 On redirect, Jennifer indicated that she was 5 feet tall and Martin was 6 feet, 2 inches or 6
feet, 3 inches tall; that she was physically afraid of him; and that after Martin was stillborn, she
had taken Jazlyn and Inez with her to a domestic violence shelter.
¶ 20 Jazlyn, who was 20 years old at the best interests hearing, testified that she grew up living
with her mom, occasionally stayed over with her dad as a preteen or young teen, and then went
to boarding school between the ages of 15 and 17. Inez always lived with Jennifer. Jennifer
took responsibility for Inez’s care, cleaning, feeding, and doctor’s visits. Martin did “[t]he bare
minimum” to take care of Inez, he “pretty much neglected” Inez and Jazlyn, and he was
aggressive, abusive, and violent toward Jennifer. Martin hit Jennifer in front of Jazlyn. Jazlyn
could not recall if Inez was also present. “On a scale of one to 10, [Martin’s level of violence
was] like nine.” After boarding school, Jazlyn returned home for about two years. She now
visits the family at least twice a month and has a stable, loving relationship with Inez. Inez is
“very happy when she sees [Jazlyn]” and also loves her little sisters. Jazlyn confirmed that she
has not seen Martin’s other children visiting at the Orland Park house.
¶ 21 On cross-examination, Jazlyn attributed her stay at the boarding school to being a
“troubled teenager” who was depressed because she “didn’t have a stable family.” During this
phase, Jazlyn had to take prescription medication for depression and anxiety, but she no longer
needs medication. When Jazlyn visits and kisses Inez on the check, Inez smiles instantly and
moves her arms.
¶ 22 Yolanda Frederick, who was 25 at the best interests hearing, testified that the last time she
saw Inez was at Inez’s house in 2013 when Yolanda “got out of basic training.” Yolanda and
Martin have been in Inez’s life “consecutively” and “[t]here hasn’t been a time where it
stopped and started.” Yolanda went to the hospital with her father and mother (Karen Varella)
when Inez was born, and then visited Inez at home as often as she could, meaning “all the
time,” every other weekend, and after school on weeknights. Martin was still living with
Jennifer even after Yolanda graduated from high school in 2009. Martin lived in the Orland
Park house with Jennifer, Claudia, and sometimes Lisa, as well as Jazlyn, Fabian, and Inez.
After high school, Yolanda and Martin did not visit Inez as frequently, but they did try to visit.
They went to the house at least 15 times between 2009 and 2011, but Jennifer would not grant
them access through the security gate, and she would text or call to say they could not visit.
Yolanda was in the National Guard between 2011 and 2014. She visited once in 2013, to
introduce her then-husband. Yolanda has attempted to visit since, but has not been able to.
¶ 23 On cross examination, Yolanda said she lived in Lemont with her mother during high
school, but would nevertheless “frequently” drive 15 or 20 minutes after school to visit in
Orland Park. Yolanda would drive her mother’s car, until she was 17 and her mother bought
Yolanda her own car. Even after Martin was no longer living in the Orland Park home,
Yolanda would visit. She would spend at least two weekends a month at the house, if Martin
was there. Yolanda denied knowing why she was testifying, said her grandmother told her
Martin and Jennifer were “battling over stuff for Inez,” and stated that she did not “understand
the legalities of it.” Yolanda was aware that if she testified that she had not seen Inez in five
years, as was alleged in the petition for direction from the court, Yolanda might be excluded
from the estate. Yolanda denied speaking with Martin’s attorney before the hearing and said
she did not know what questions would be posed to her.
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¶ 24 Daniel Loy said he lived in the Orland Park home with Jennifer and Martin between 2005
and 2009. For a while he lived upstairs, but then moved to the basement. He never witnessed an
argument between Jennifer and Martin and never saw them strike each other. He saw Martin
visiting Inez. On cross examination, Daniel reiterated that he lived in the Orland Park house for
four years and said he received his work checks and W2 forms at that address. Daniel and
Martin were childhood friends. Daniel saw Martin change Inez’s diaper two or three times a
day, change her feeding tube “maybe once a day,” and administer medication. Daniel admitted
that he could not see any of this from downstairs in the basement, but he was “pretty sure
[Martin’s] in there doing something, feeding her, taking care of her.”
¶ 25 Lisa Marie Lumen testified that she has four children with Martin and that he supports
those children, “always has been there,” sees the children daily, and is “a very loving father.”
Lisa met Jennifer in April 2002, when Lisa and Martin were living on Burnham in South
Chicago, and Jennifer and Jazlyn came to stay with them for three months. The women next
encountered one another in 2004, when Jennifer and Jazlyn came to pick up Martin from his
mother’s house in Hammond. They also had contact at the Orland Park residence, once in
2005, once in 2006 when Lisa stayed over after Inez’s birthday party, and then periodically
throughout 2006. Lisa observed that Daniel was living in the basement in 2006. Lisa’s children
would come with her and would visit Inez. Inez would respond by smiling and moving around.
Lisa’s last visit to the Orland Park home was in 2007 because Jennifer said that Lisa was no
longer welcome and then blocked Lisa’s phone calls. Lisa’s children, however, continued to go
there with Martin at least once or twice a year until 2010 or 2011, and then one more time in
October 2015. On cross examination, Lisa acknowledged that she was not in the Orland Park
home after 2007, when her children were purportedly visiting Inez, and that she had not seen
Martin interact with Inez in nine years. She had testified that Martin sees their children every
day, but admitted that when their first two children were born, Martin was married to Jennifer.
Lisa was unaware that Jennifer had remarried and had more children. Martin’s current
girlfriend is Nece Flores.
¶ 26 Martin testified that when Inez was born, he and Jennifer were living with Jennifer’s
mother, Ursula Garcia. When Inez came home from the hospital, Jennifer was the caregiver but
Martin “participated at times.” Inez lived in a rehabilitation center between 1998 and 2005.
During those years, Martin would visit Inez “[m]aybe three times out of the month” by himself,
with Lisa, or with his mother, and Jennifer was not always present for those visits. During that
time period, his relationship with Jennifer was “off and on,” and he sometimes lived with her.
Inez was released from the rehab center in 2005 to go live in the new house in Orland Park with
Martin, Jennifer, Jazlyn, and later also Daniel. Even though Jennifer and Martin divorced in
November 2005, Martin continued to live in the Orland Park home for almost the next four
years. By watching Jennifer, Martin had learned how to clean Inez’s trachea tube, add a
syringe of formula to her feeding tube, wash her, and change her clothing. Whenever Jennifer
was too tired, which was “maybe two three times every now and then,” Martin “would help her
out” and perform these procedures himself.
¶ 27 Martin lived in the Orland Park home until 2009. After that, he was “able to visit here and
there” but there were times that Jennifer would ignore his calls or texts or would respond with
“an excuse for [Martin] not to go.” There were also “at least 10 plus” times that Martin
attempted to visit between 2009 and 2010 when Jennifer would not permit him access through
the security gate.
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¶ 28 In 2010, Martin petitioned the court and was granted visitation a couple of hours every
other Saturday at the Orland Park mall. Martin went once but was not given a specific meeting
point within the “pretty big” mall, so he contacted Jennifer on her cell phone, and she did not
respond. Martin did not have visitation after that because “[s]he was finding an excuse for me
not to see her anymore. She wasn’t answering any of my calls anymore.” Jennifer did not
initiate contact with Martin, and he was “assuming she was upset, and she just didn’t want me
to see her.”
¶ 29 When Martin and Jennifer lived together at 8628 South Burnham, there were some violent
episodes between them because Jennifer “gets short tempered” and “throws cups, glasses, you
name it,” and would strike and scratch him. Jennifer was arrested once because a neighbor
called the police, and “they saw where she had threw the knife at [Martin].” There were times
when Martin would respond to Jennifer’s attacks and they would “put hands on each other.”
Jennifer’s attacks on Martin were “fighting over nonsense” and did not concern Inez’s care.
¶ 30 On cross-examination, Martin acknowledged that he could have returned to court to
enforce the 2010 visitation order, but he said, “I took it into my own hands to call her and
repeatedly called her to visit my daughter.” He also acknowledged there was an Illinois law
making it “a crime to interfere with visitation,” meaning that he could have made a police
report that Jennifer was failing to cooperate with the visitation order, but he did not make that
report. Although Jennifer was interfering with his visitation, he did not object in 2013 to her
petition to be appointed Inez’s sole legal guardian because he “didn’t know exactly what the
laws were.” As for the time Jennifer was arrested for attacking him, Martin did not know if she
ever went to court, and his lawyer never told him that Jennifer was convicted of any crime.
¶ 31 Martin acknowledged “[p]utting hands, [in] self defense” on Jennifer, that he had
“punched” her but was unsure how many times, and that he kicked her while she was on the
ground, but he was unsure how many times. Martin denied punching and kicking Jennifer
when she was pregnant with their son who was later stillborn, but he acknowledged that after
“she lost the baby, she went to a shelter for battered women.” According to Martin, he never hit
Jennifer during the pregnancy; instead, she fell down outside the house, he picked her up, and
two or three days later she said the baby was not moving. At the hospital, they said the baby
had died.
¶ 32 With regard to Martin’s testimony that he lived in the Orland Park house with Jennifer
between 2005 and 2009, Martin said he was not sure whether she became engaged in 2007, he
was not sure whether she remarried in 2009, he denied living in the house with her new
husband when she was pregnant, and he was not aware that she had a baby in 2009. Martin then
said he moved out in the beginning of 2009. Until then, his clothes, shoes, paintings, and
treadmill were there, and the treadmill was still there to this day. Martin admitted he never had
the Orland Park address on his driver’s license.
¶ 33 Martin has four felony convictions: one for drug possession in 2003, one prior to that for
unlawful use of an unregistered weapon, and two others that he could not recall, although one
of them might have been for assault or battery.
¶ 34 Martin said the reason he never took any training to care for Inez was he “was never asked
to” and it had never occurred to him to be trained, but he knew how to care for Inez and had
“helped [Jennifer] do it.”
¶ 35 Martin said he was in court because he was fighting for his other children’s right to inherit
from Inez.
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¶ 36 Jennifer was called as a rebuttal witness. Jennifer disagreed with Yolanda’s testimony that
she visited the Orland Park residence frequently as a teenager. Jennifer said the visits were
“[w]ith her father sporadically.” When Yolanda was two years old, Martin would drop her off
so that Jennifer would babysit her during his visitation time. David Loy lived in the Orland
Park house only in 2005 for two months. Jennifer started dated her second husband in 2006,
and David Loy was no longer living in the basement. Jennifer was “always” at the hospital
when Inez had to live there between 1999 and 2005 and observed that Martin did not come to
visit Inez. Jennifer was there as often as twice a week and would stay from 9 a.m. to almost 8
p.m. It was possible that Martin came later in the day. There was a sign-in log that Jennifer had
to use. Jennifer and her mother took training at the hospital to care for Inez, but the training was
never offered to Martin because “[h]e never came.”
¶ 37 The guardian ad litem, Peter Schmiedel, testified that he had also been appointed by the
court in the fall of 2009 when Inez was a minor and the question was whether a “do not
resuscitate” order should be in place. At the time, Inez was living in the Orland Park house, and
Schmiedel visited there at least twice. Jennifer was living there, but not Martin, and his
whereabouts were actually unknown then. Schmiedel observed that Inez was receiving
excellent care, Jennifer was interacting very well with her, and there could not be a safer or
more appropriate placement for Inez. Schmiedel, who was reappointed for another issue in
2013, observed that Inez’s health had improved, that her hospitalization time had gone down,
that Jennifer was again cooperative with his investigation, and that he had no contact with
Martin. Schmiedel was appointed for the current issue in early 2016, at which point Martin’s
lawyer provided his client’s phone number, and Schmiedel called to discuss Martin’s visitation
history. Martin said that he visited Inez only 9 or 10 times in the last 7 years. With regard to
whether it was in Inez’s best interests to deviate from intestacy, Schmiedel was of the opinion
that Inez could not express her wishes. Also, the factors the court should consider in
determining a testamentary plan were who resided with the ward, cared for her, and
demonstrated a long-standing relationship, which in this instance were Jennifer and her
immediate family. The court should also look at negative interactions, such as domestic
violence, and whether family members had contributed to Inez’s well being and day-to-day
care, when the court determined who should take from the estate and what percentage they
should take. Schmiedel was of the opinion that the evidence indicated the court should deviate
from intestacy in this instance.
¶ 38 On cross-examination, Schmiedel said he made two home visits in 2009, for probably an
hour each time, and that it was possible Martin visited before or after him. At the time,
however, Jennifer told Schmiedel that she did not have Martin’s contact information.
Schmiedel had a one-hour phone conversation with Martin regarding the current issue and
came to the conclusion that visiting 9 to 10 times in a 7-year period was “not a very consistent
visitation pattern.” Schmiedel also held the opinion that the trial court should take into
consideration whether Martin and his other children had a consistent relationship with Inez
over the years.
¶ 39 During the best interests hearing, Jennifer and Martin tendered photos of themselves with
Inez at various ages. After the hearing concluded, they prepared and submitted legal briefs to
assist the court with its analysis. About two months after the hearing, Jennifer, Jennifer’s
attorney, Martin’s attorney, and the guardian ad litem returned to court on December 12, 2016,
to obtain the judge’s ruling.
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¶ 40 The judge first found that the preponderance-of-the-evidence standard set out in In re
Estate of Michalak, 404 Ill. App. 3d 75, 934 N.E.2d 697 (2010), was controlling, and that the
cases Martin was relying upon for the clear-and-convincing standard either were not
guardianship cases or were guardianship-of-the-person cases. The judge also took into
consideration that the legislature had added the clear-and-convincing standard to certain
sections of the Probate Act, such as whether to sterilize a ward or terminate a ward’s marriage,
but the legislature did not include this standard in section 11a-18 of the Probate Act, which is
the section relevant to these proceedings. 755 ILCS 5/11a-18 (West 2016) (defining the duties
of the guardian of a disabled adult’s estate).
¶ 41 Applying Howell, the judge next indicated that Inez would execute an estate plan if she was
not under a disability. The evidence of Inez’s severe, permanent impairment supported the
position of the guardian of the estate, guardian of the person, and the guardian ad litem that
proceeding with an estate plan was appropriate and that Inez lacked any ability to express her
wishes about an estate plan. The natural objects of Inez’s bounty would include those who care
for and are involved in her life, as opposed to those who are not. Jennifer and Jazlyn have a
close relationship with Inez, and the three little sisters also have an active and true friendship
with Inez. Martin, however, has played a far smaller role in Inez’s life than Jennifer’s second
husband. It was undisputed that Martin and Jennifer’s relationship as a couple had been “off
and on” and punctuated by violence. The judge did not find Martin credible when he said he
acted in self defense and when he said that Jennifer fell outside the house instead of being a
victim of domestic violence. Martin has a criminal history, and Jennifer was credible and
reasonable when she said she wanted to limit her family’s contact with Martin. The guardian
ad litem and Jennifer credibly testified that Martin’s visits were rare and that Jennifer did not
block his visitation until recently. Martin’s contentions that he did not move out of the Orland
Park house until 2009 and that Jennifer stymied his attempts to visit were undermined by the
fact that he did not attempt to enforce the 2010 visitation order even though he blamed Jennifer
for being nonresponsive to his phone calls and the fact that he did not seek visitation again until
years later when Inez’s estate plan was being discussed. David Loy was not credible when he
said Martin lived in the house between 2005 and 2009, particularly since Loy contended he
saw Martin taking care of Inez but then Loy admitted he did not see Martin performing any of
the tasks. Martin’s lack of commitment to Inez’s care was underscored by his failure to seek
training as a caregiver and his inability to identify a single witness who would confirm that he
was capable of rendering appropriate care to her. The judge also found Yolanda not credible
when she testified that she was a frequent visitor as a teenager and that she was ignorant of the
purpose of the best interests hearing. The judge also considered Lisa’s testimony that her
children visited Inez infrequently and had not seen Inez since 2007.
¶ 42 The judge concluded that the preponderance of the evidence indicated it was in Inez’s best
interests to deviate from intestacy, to include those family members who had consistent and
loving relationships with Inez, and to exclude those family members who did not. The judge
directed Northern Trust to move forward on a new estate plan and denied Martin’s motion for
reconsideration. Martin has taken this appeal to challenge those two rulings. Illinois Supreme
Court Rule 304(b)(1) gives us jurisdiction to consider his appeal. Ill S. Ct. R. 304(b)(1) (eff.
Mar. 8, 2016) (conveying jurisdiction to review a judgment or order entered in the
administration of an estate, guardianship, or similar proceeding that finally determines a right
or status of a party). Jennifer filed a response brief in her capacity as Inez’s personal guardian,
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the guardian ad litem agreed with Jennifer’s arguments and rationale and adopted her brief as
his own instead of filing a separate brief, and Northern Trust subsequently filed a response
brief in its capacity as the estate guardian. We also have benefit of Martin’s reply brief.
¶ 43 Martin first argues it was reversible error to permit Northern Trust to amend Inez’s estate
plan to disinherit Martin and his other children, when there was no statutory authority to make
this change. Martin’s argument implicates section 11-18(a) of the Probate Act, the next
paragraph, section 11-18(a-5), and our opinion in Howell regarding these two portions of the
statute. Howell, 2015 IL App (1st) 133247.
¶ 44 Section 11a-18(a) provides as follows:
“ ‘(a) To the extent specified in the order establishing the guardianship, the
guardian of the estate shall have the care, management and investment of the estate,
shall manage the estate frugally and shall apply the income and principal of the estate
so far as necessary for the comfort and suitable support and education of the ward, his
minor and adult dependent children, and persons related by blood or marriage who are
dependent upon or entitled to support from him, or for any other purpose which the
court deems to be for the best interests of the ward, and the court may approve the
making on behalf of the ward of such agreements as the court determines to be for the
ward’s best interests.’ ” (Emphases in original.) Howell, 2015 IL App (1st) 133247,
¶ 18 (quoting 755 ILCS 5/11a-18(a) (West 2000)).
¶ 45 In Howell, we characterized section 11a-18(a) as setting “the ward’s ‘best interests’ as the
touchstone for all actions taken by an estate guardian.” Howell, 2015 IL App (1st) 133247,
¶ 12.
¶ 46 The next paragraph of the statute, section 11a-18(a-5), provides more detail about the
estate guardian’s duties, specifying that the estate guardian is to give notice to all other
interested parties and petition the court for approval of actions or applications of funds that are
“in keeping with the ward’s wishes so far as they can be ascertained”:
“ ‘The probate court, upon petition of a guardian, other than the guardian of a minor,
and after notice to all other persons interested as the court directs, may authorize the
guardian to exercise any or all powers over the estate and business affairs of the ward
that the ward could exercise if present and not under disability. The court may
authorize the taking of an action or the application of funds not required for the ward’s
current and future maintenance and support in any manner approved by the court as
being in keeping with the ward’s wishes so far as they can be ascertained. The court
must consider the permanence of the ward’s disabling condition and the natural objects
of the ward’s bounty. In ascertaining and carrying out the ward’s wishes the court may
consider, but shall not be limited to, minimization of State or federal income, estate, or
inheritance taxes; and providing gifts to charities, relatives, and friends that would be
likely recipients of donations from the ward. The ward’s wishes as best they can be
ascertained shall be carried out, whether or not tax savings are involved.’ ” Howell,
2015 IL App (1st) 133247, ¶ 17 (quoting 755 ILCS 5/11a-18(a-5) (West 2000)).
¶ 47 Continuing into further detail about permissible “action[s] or the applications of funds,”
section 11a-18(a-5) sets out a nonexhaustive list of examples, stating that “[a]ctions or
applications of funds may include, but shall not be limited to, the following,” including what
was the subject of the Howell litigation, “(6) creating for the benefit of the ward or others,
revocable or irrevocable trusts of his or her property that may extend beyond his or her
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disability or life.” 755 ILCS 5/11a-18(a-5)(6) (West 2016). Martin focuses on the last entry in
the list of examples, “(11) modifying by means of codicil or trust amendment the terms of the
ward’s will or any revocable trust created by the ward, as the court may consider advisable in
light of changes in applicable tax laws.” 755 ILCS 5/11a-18(a-5)(11) (West 2016).
¶ 48 After this list of examples, section 11a-18(a-5) concludes with further detail about the
contents of the estate guardian’s petition, identifies various individuals and charities who may
benefit from the disposition of estate funds, and specifies that the estate guardian need not
make dispositions to “any person who he has reason to believe would be excluded by the
ward”:
“The guardian in his or her petition shall briefly outline the action or application of
funds for which he or she seeks approval, the results expected to be accomplished
thereby, and the tax savings, if any, expected to accrue. The proposed action or
application of funds may include gifts of the ward’s personal property or real estate, but
transfers of real estate shall be subject to the requirements of Section 20 of this Act.
Gifts may be for the benefit of prospective legatees, devisees, or heirs apparent of the
ward or may be made to individuals or charities in which the ward is believed to have
an interest. The guardian shall also indicate in the petition that any planned disposition
is consistent with the intentions of the ward insofar as they can be ascertained, and if
the ward’s intentions cannot be ascertained, the ward will be presumed to favor
reduction in the incidents of various forms of taxation and the partial distribution of his
or her estate as provided in this subsection. The guardian shall not, however, be
required to include as a beneficiary or fiduciary any person who he has reason to
believe would be excluded by the ward. A guardian shall be required to investigate and
pursue a ward’s eligibility for governmental benefits.” 755 ILCS 5/11a-18(a-5) (West
2016).
¶ 49 Reading these paragraphs together, we came to the conclusion in Howell that the guardian
of the estate of a disabled adult is obligated to propose to the court that a trust established as
part of an estate plan include as beneficiaries only those individuals whom the guardian has
reason to believe the ward would choose to include, if the ward was present and not under
disability. Howell, 2015 IL App (1st) 133247, ¶ 29.
¶ 50 Martin, however, contends the estate plan that was adopted for Inez was not authorized by
this statute. Martin points out that the estate plan that was originally adopted for his daughter
followed the rules of intestacy and that intestacy is based on the sound principle that a person’s
estate should benefit the natural objects of the person’s bounty, including those individuals
who are related to the person by blood or who have ties of affection. DeHart v. DeHart, 2013
IL 114137, ¶ 20, 986 N.E.2d 85 (defining the “natural objects of one’s bounty”). Section
11a-18 of the Probate Act defines the duties of an estate guardian, and Martin contends
subsection (a-5)(11) contains the only statutory language that in any way implicates
disinheritance when it states that the guardian of a disabled ward’s estate may “modif[y] by
means of codicil or trust amendment the terms of the ward’s will or any revocable trust created
by the ward, as the court may consider advisable in light of changes in applicable tax laws.”
(Emphasis added.) 755 ILCS 5/11a-18(a-5)(11) (West 2016). Martin reads the quoted
language to mean that once a trust agreement has been adopted for a disabled adult ward, the
plan may be modified only to reflect changes in the tax code. He contends that Northern
Trust’s petition for judicial direction in 2016 clearly acknowledged that an estate plan, based
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on intestacy, had been approved for Inez in 2015, and that nothing in the 2016 petition could be
construed as a concern about the tax implications of that plan. According to Martin, Northern
Trust’s petition “disingenuously” referred to the broadly worded paragraph (a-5) rather than
the only subparagraph that authorizes disinheritance, (a-5)(11), and erroneously cited Howell
for the proposition that the statute authorized the estate guardian to “start fresh” in creating an
estate plan for Inez. Howell, 2015 IL App (1st) 133247. Martin contends that Howell
“conflates the general language of paragraph (a-5) with the specific language of
[sub]paragraph (a-5)(11),” and in so many words, Martin is contending that Howell was
wrongly decided. Alternatively, Martin contends Howell should be limited to its facts, which
were the creation of a new trust, rather than the modification of an existing trust, and should be
deemed irrelevant to the current proceedings. Martin concludes that the plain and limiting
language of section 11a-18(a-5)(11) regarding disinheritance was not properly followed here
and that the order entered in excess of the court’s statutory authority must be voided. See
Cushing v. Greyhound Lines, Inc., 2012 IL App (1st) 100768, ¶ 105, 965 N.E.2d 1215 (voiding
the trial court’s appointment of a special administrator where the court had exceeded its
statutory authority).
¶ 51 “The construction of a statute, including section 11a-18(a-5)(11) of the Probate Act, is a
question of law, which this court reviews de novo.” Michalak, 404 Ill. App. 3d at 84-85. “Our
supreme court has consistently held that ‘[t]he cardinal rule of statutory construction, and the
one to which all other cannons and rules must yield, is to ascertain and give effect to the true
intent and meaning of the legislature.’ ” In re Mark W., 383 Ill. App. 3d 572, 588-89, 895
N.E.2d 925, 939 (2008) (quoting State Farm Mutual Automobile Insurance Co. v. Illinois
Farmers Insurance Co., 226 Ill. 2d 395, 401, 875 N.E.2d 1096, 1100 (2007)). Because the
words chosen by the legislature are the most reliable indication of the legislature’s intent, we
give the statutory language its plain and ordinary meaning. In re Mark W., 383 Ill. App. 3d at
588-89.
¶ 52 Northern Trust, Jennifer, and the guardian ad litem respond that Martin failed to make his
statutory construction argument in the trial court and, therefore, it is waived. Robinson v.
Toyota Motor Credit Corp., 201 Ill. 2d 403, 413, 775 N.E.2d 951, 958 (2002). Martin
acknowledges that the argument is a new one, but points out that all the parties fully briefed the
issue and that even if he had made the argument in the trial court, it would have been addressed
de novo on appeal. Martin urges us to consider his argument, in the interests of justice. We
choose to address Martin’s argument because doing so is simple and straightforward.
¶ 53 Martin’s argument was rejected almost eight years ago in Michalak. Michalak, 404 Ill.
App. 3d 75. The appellants in Michalak relied on the same language Martin relies on,
contended that the plain language of subsection 11a-18(a-5)(11) was intended to be a
restriction on the broad permissive language of 11a-18(a-5), and concluded that amendments
to estate plans were thereby permitted solely to take advantage of changes in the tax laws.
Michalak, 404 Ill. App. 3d 75. The Michalak court merely read the language of the statute,
noting that the legislature’s “ ‘consistent and exclusive use of the term “may” throughout
section 11a-18(a-5)’ ” when listing the possible actions and applications of funds by the estate
guardian and describing the role of the trial court “indicated that the provision was permissive
[and not mandatory] and that the trial court may exercise its discretion in granting relief under
it.”Michalak, 404 Ill. App. 3d at 86 (quoting In re Estate of Ahmed, 322 Ill. App. 3d 741, 746,
750 N.E.2d 278, 281 (2001)). The Michalak court also found that the use of the words
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“ ‘ “include” ’ ” and “ ‘ “including” ’ ” indicated the itemized list of permissible actions or
applications of funds was not meant to be exclusive or exhaustive. Michalak, 404 Ill. App. 3d
at 86 (quoting Gem Electronics of Monmouth, Inc. v. Department of Revenue, 286 Ill. App. 3d
660, 667, 676 N.E.2d 1016, 1021 (1997)). First, section 11a-18(a-5) clearly stated: “ ‘In
ascertaining and carrying out the ward’s wishes the court may consider, but shall not be limited
to, minimization of State or federal income, estate, or inheritance taxes; and providing gifts to
charities, relatives, and friends that would be likely recipients of donations from the ward. The
ward’s wishes as best they can be ascertained shall be carried out, whether or not tax savings
are involved.’ ” (Emphases in original.) Michalak, 404 Ill. App. 3d at 85 (quoting 755 ILCS
5/11a-18(a-5) (West 2008)). Section 11a-18(a-5)(11) is also permissive, stating:
“Actions or applications of funds may include, but shall not be limited to, the
following:
***
(11) modifying by means of codicil or trust amendment the terms of the ward’s will
or any revocable trust created by the ward, as the court may consider advisable in light
of changes in applicable tax laws.” (Emphases in original.) Michalak, 404 Ill. App. 3d
at 85 (quoting 755 ILCS 5/11a-18(a-5)(11) (West 2008)).
¶ 54 Thus, Martin’s contention that section (a-5)(11) should be read as a limitation on the estate
guardian’s authority was dispensed with by Michalak and is not persuasive to this court.
Martin urges us to “part company” with Michalak, but in addition to the fact that we find the
analysis sound and persuasive, the legislature has signaled that the statutory language was
properly interpreted in Michalak because the legislature has not subsequently changed the
statute to correct the interpretation. Provena Health v. Illinois Health Facilities Planning
Board, 382 Ill. App. 3d 34, 45, 886 N.E.2d 1054, 1065 (2008) (the legislature is presumed to
know how courts have interpreted a statute and may amend a statute if it intended a different
construction). Michalak states the settled law of Illinois.
¶ 55 For these same reasons, we reject Martin’s contention that Howell should be limited to the
initial creation of an estate plan for a disabled adult ward and deemed inapplicable to Northern
Trust’s petition to amend Inez’s estate plan to exclude her father and some of his children.
Martin’s argument is contrary to section 11a-18’s expansive and permissive description of the
duties of the estate guardian, and, in particular, it goes against the estate guardian’s statutory
duty to always act “for the ward’s best interests.” 755 ILCS 5/11a-18(a) (West 2016); Howell,
2015 IL App (1st) 133247, ¶ 12 (section 11-18(a) “sets the ward’s ‘best interests’ as the
touchstone for all actions taken by an estate guardian”). This standard is written into the statute
without any modifying language and, therefore, is in effect regardless of whether we are
discussing an initial estate plan as we did in Howell, or an amendment to an estate plan, as we
are discussing here. Furthermore, a ward’s best interests are not fixed and it would be unsound
to conclude that a ward’s estate plan should be unmodifiable, particularly in this case where the
ward is a young adult and her best interests may change over her lifetime. We find that an
estate guardian is empowered and obligated by the Probate Act to amend a disabled ward’s
estate plan when material circumstances change and an existing plan, whether it be an original
or amended version, is no longer in the ward’s best interests due to a change in circumstances.
According to the Probate Act, an estate guardian’s duties are to manage the ward’s estate
“frugally” and apply the income and principal “so far as necessary for the comfort and suitable
support and education of the ward, *** or for any other purpose which the court deems to be
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for the best interests of the ward, and the court may approve the making on behalf of the ward
of such agreements as the court determines to be for the ward’s best interests.” 755 ILCS
5/11a-18(a) (West 2016); In re Guardianship of Mabry, 281 Ill. App. 3d 76, 88, 666 N.E.2d
16, 23 (1996). Furthermore, the legislature has amended the Probate Act three times since
Howell was decided, without changing the language we analyzed in that case and which the
probate court judge subsequently applied to Northern Trust’s petition to amend Inez’s estate
plan. The lack of revision to the statutory language applied in Howell is an indication that we
construed the language as the legislature intended. Provena Health, 382 Ill. App. 3d at 45 (the
legislature is presumed to know how courts have interpreted a statute and may amend a statute
if it intended a different construction). Accordingly, we have no reason to interpret the
statutory language any differently than we did in Howell. In Howell, we applied the statutory
language to a disabled adult ward’s initial estate plan; we now affirmatively extend Howell’s
reasoning to amendments to a disabled adult ward’s estate plan.
¶ 56 Martin’s second main argument is that the trial court erred by enabling the estate guardian
to impermissibly cede its decision-making authority about the estate to the personal guardian,
when Northern Trust let Jennifer recommend who should benefit from Inez’s estate plan upon
her death. Martin contends Northern Trust “completely deferred to Jennifer *** to make the
estate planning decisions” and that the Act does not empower a personal guardian to make
those types of decisions. Acts of an estate guardian which exceed its statutory authority are not
to be approved or ratified by the probate court. In re Estate of Swiecicki, 106 Ill. 2d 111, 120,
477 N.E.2d 488, 491 (1985).
¶ 57 Northern Trust, Jennifer, and the guardian ad litem respond that Martin failed to make this
argument in the trial court and, therefore, it is waived. Robinson v. Toyota Motor Credit Corp.,
201 Ill. 2d 403, 413, 775 N.E.2d 951, 958 (2002). Martin concedes that the argument is a new
one, but contends that in the interests of justice, we should address it.
¶ 58 We find the argument is waived. Waiver aside, we point out that Martin’s argument is
deeply flawed. Martin is essentially arguing that Northern Trust, a corporate trustee without
any personal contact with Inez, should have formed an estate plan without input from Inez’s
mother, the person the record indicates has the most knowledge about Inez’s family life and
her contact with other persons who might be considered as the natural objects of the bounty of
her estate. Furthermore, Northern Trust did not cede any decisions to Jennifer, and instead
petitioned the trial court for directions regarding estate planning and gave all interested parties,
including Martin, an opportunity to participate in the proceedings and comment on what would
be in Inez’s best interests. In addition, the trial court ordered the presentation of legal briefs and
conducted a two-day hearing in order to hear directly from the interested parties and their
supporting witnesses. Also, the record indicates the trial court carefully weighed and
considered the undisputed facts, testimony which was on some points conflicting, exhibits, and
relevant law, before the trial court, not Jennifer, made the decision about whether to proceed
with an amendment to the 2015 estate plan. Thus, the contention that the trial court condoned
an impropriety between the estate guardian and the personal guardian is not supported by the
record.
¶ 59 Martin’s next argument is that the trial court’s decision should be reversed because the
court employed the incorrect burden of proof at the best interests hearing. Martin criticizes
Howell because we did not announce the burden of proof to be used at the best interests hearing
that would be conducted on remand. Howell, 2015 IL App (1st) 133247, ¶ 41. It would have
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been inappropriate, however, for this court of review to decide an issue that the parties had
never argued and the trial court had never addressed. Howell was a case of first impression in
which the trial court had ruled, as a matter of law, that the adult disabled ward’s estate plan
must follow the rules of intestacy and had refused to conduct an evidentiary hearing into the
ward’s best interests. Howell, 2015 IL App (1st) 133247, ¶ 1. On appeal, we concluded that the
ruling was in error and we remanded the case with directions to proceed with the evidentiary
hearing that the co-guardians were seeking. Howell, 2015 IL App (1st) 133247, ¶ 36. On
remand, those parties would have been given their first opportunity to argue for a specific
evidentiary standard. No subsequent appeal was taken, and we do not know what standard was
used in the proceeding.
¶ 60 Martin contends the trial court that considered Inez’s best interests incorrectly adopted the
evidence standard set out in Michalak. Michalak, 404 Ill. App. 3d 75. He cites Board of
Education of the City of Chicago v. State Board of Education, 113 Ill. 2d 173, 191-92, 497
N.E.2d 984, 991-92 (1986), for the proposition that courts use different evidentiary standards
to resolve different types of questions. Whether the trial court applied the correct burden of
proof is a question of law that we review de novo. Gataric v. Colak, 2016 IL App (1st) 151281,
¶ 14, 59 N.E.3d 109.
¶ 61 In Michalak, which was decided five years before Howell, we held that a petition to amend
an adult disabled ward’s trust is subject to the preponderance of the evidence standard.
Michalak, 404 Ill. App. 3d at 96. We remarked that it would be inappropriate to use the clear
and convincing standard because the petition did not concern a personal issue such as
withdrawing life-sustaining treatment or invoking extraordinary mental health measures.
Michalak, 404 Ill. App. 3d at 96. When addressing the petition regarding Inez’s estate plan, the
trial court not only considered Michalak’s analysis, but also reasoned that when the legislature
believes the best interest of the ward should be demonstrated by clear and convincing
evidence, the legislature expressly adds that standard to the Probate Act, as it did in the
sections regarding whether to terminate a ward’s marriage or whether to have a ward sterilized,
but that standard was not incorporated into section 11a-18, which is the section relevant to
these proceedings. 755 ILCS 5/11a-18 (West 2016).
¶ 62 Martin argues that Michalak is not on point because it was not dealing with the peculiar
facts of this case, in which a disabled ward’s biological parent and some of that parent’s other
children who did not have a relationship with the disabled ward were being disinherited.
Martin contends that the clear-and-convincing evidence standard should have been applied
because “there is a strong public policy interest in protecting disabled persons and the
inheritance rights of their blood relatives.” Martin also contends the ruling does not promote
Inez’s relationships with the relatives who were disinherited. He cites In re Mark W., 228 Ill.
2d 365, 374-75, 888 N.E.2d 15, 20 (2008), for the proposition that a person who has been
adjudicated as disabled is viewed as a favored person entitled to the court’s vigilant protection.
He does not cite any authority indicating it is good public policy to support inheritance
expectations of a disabled ward’s relatives. He also relies on In re Estate of Hook, 207 Ill. App.
3d 1015, 1029, 566 N.E.2d 759, 768 (1991), for the proposition that the clear and convincing
standard is applied to prevent inheritance by someone who has murdered the person from
whom he or she stands to inherit. Martin argues, “There is something fundamentally wrong
with a ruling which makes it easier to be disinherited for not visiting enough or for having
extramarital affairs than it is for murder.”
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¶ 63 We decline Martin’s invitation to disagree with Michalak, as that case involved similar
circumstances. Also, because this case involved the disposition of a disabled ward’s estate, not
the ward’s person, we decline to endorse an evidentiary standard that is relevant to questions
regarding the ward’s person (sterilization or dissolution of marriage).
¶ 64 Martin’s last contention is that it was an abuse of discretion for the trial court to conclude
that Martin did not have a substantial relationship with his daughter, even though it was her
mother who impeded that relationship by not allowing him to visit. Martin contends Jennifer
had sole discretion over whom to admit to the Orland Park residence and that although he and
others wanted to visit Inez, Jennifer was the gatekeeper. Martin filed a visitation petition on
December 10, 2015, but the trial court denied the petition due to settled authority, Struck,
which indicates that a relative of a disabled adult ward has no standing to assert a right to visit
the ward and challenge the decisions of the guardian of the person to deny visitation. Struck v.
Cook County Public Guardian, 387 Ill. App. 3d 867, 876, 901 N.E.2d 946, 954 (2008). Martin
argues that Struck, which prevented him from visiting Inez, and Howell, which indicated
deviating from intestacy may be in the best interest of a disabled ward, work together as a
“legal non-compete agreement against any blood relative whom Jennifer seeks to disinherit.”
Martin contends that once Jennifer had the sole discretion to decide whether Martin could visit
Inez, it was inevitable that Jennifer would unjustly end his visits.
¶ 65 Jennifer and the guardian ad litem respond that the trial court properly considered the
evidence, and made sound credibility determinations, before concluding that Martin did not
have a loving and consistent relationship with Inez.
¶ 66 We review the trial court’s evidentiary ruling for an abuse of discretion. In re Rocker, 2017
IL App (4th) 170133, ¶¶ 38-39, 92 N.E.3d 988. A court abuses its discretion where its decision
is arbitrary, fanciful or unreasonable, or when no reasonable person would take the same view.
Rocker, 2017 IL App (4th) 170133, ¶ 39; Lisowski v. MacNeal Memorial Hospital Ass’n, 381
Ill. App. 3d 275, 288, 885 N.E.2d 1120, 1134 (2008).
¶ 67 The record indicates that the best interests hearing and the trial court’s ruling encompassed
Inez’s entire life, not just her recent adulthood, which is when Martin petitioned for visitation.
The trial court determined that the credible evidence indicated Martin had chosen not to be
involved in Inez’s life and to care for her, even when she was an infant in 1995, when he had
the unfettered ability to spend time with her and care for her; even when she was confined to
the rehabilitation center as a young child, where he could visit her freely; and even later, after
2005, when she was still a minor and sometimes hospitalized for long periods when she was
not living in the Orland Park residence with her mother. It was not until shortly after Inez’s
18th birthday in 2013 that she was adjudicated a disabled adult, Jennifer was appointed as the
sole guardian of Inez’s person, Jennifer then had sole authority over visitation questions with
her adult child, and Jennifer decided that she would no longer permit Martin to visit Inez. Only
then did Struck and Howell become relevant. The record indicates that Martin showed little to
no interest in his daughter since her birth in 1995. He did not care for her and create a
relationship with her when she was a child and when he had the unfettered legal right to be a
part of her life. When Inez was older, Martin did not oppose her mother’s petition to be
appointed as the sole guardian of their adult daughter, and he did not petition for visitation until
almost three years later, in 2015. By 2015, Martin had created a 20-year track record of
disinterest and lack of concern for Inez’s health and wellbeing. Martin consistently chose not
to have a close relationship with Inez. The amendment to her estate plan did not occur because
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of recent case law, and it did not occur because of Jennifer’s recent decision to deny visitation
with her adult child, which she attributed to Martin’s intention only to avoid being excluded
from the estate, rather than to a newfound interest in their eldest daughter. The amendment
occurred because the competent record showed that it was in Inez’s best interests to distribute
the estate remaining after her death only to her close and loving family members and to
exclude other people whose only claim to the assets was through the rule of intestacy. Martin
has failed to present any reason to disturb the trial court’s ruling at the conclusion of the best
interests hearing and we affirm that ruling.
¶ 68 Affirmed.
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