Caregivers sometimes end up getting written into a will or a trust.  When they do, it’s not surprising if litigation ensues.  In Gardner v. Cole (Rule 23 order), we get to see an Illinois caregiver and her husband withstand a challenge by the grantor’s surviving relatives to impose a constructive trust over the trust assets and bank accounts that went to the caregiver and her husband.  So, how was the caregiver successful?

After Jessica Smith suffered a second stroke in February 2007, she needed assistance with housework and personal care.  Sherry Gardner was hired in March 2007.  Sherry cleaned Jessica’s house, took her out to eat, and cared for the dog.  In February 2008, Jessica added Sherry and her husband as two “pay on death beneficiaries” to her bank account.  In April 2008, Jessica executed a third amendment to her trust, which added Sherry and her husband as beneficiaries of Jessica’s house.  Jessica’s family members did not learn of this third amendment until after Jessica’s death.

After Jessica’s death, her surviving family members alleged, among other things, that Jessica lacked capacity, that Sherry exerted undue influence over Jessica, and that Sherry tortiously interfered with their inheritance.  A bench trial was held and a lot of testimony was heard by the court.  The trial court denied the claims against Sherry and her husband as they related to the house and bank account.

The appellate court affirmed the trial court’s order, agreeing that Sherry and Jessica were not in a confidential relationship at the time that Jessica executed the third amendment to the trust and made changes to her bank account to add Sherry.  The court noted that Illinois courts look at the following factors when determining whether a confidential relationship exists:

(1) the degree of the kinship;

(2) the disparity in age, health, mental condition, education, and business experience between the parties; and

(3) the extent to which the allegedly servient party entrusted the handling of her business and financial affairs to the ‘dominant’ party and placed trust and confidence in him.

Jessica’s family members were unable to prove by clear and convincing evidence that a confidential relationship existed between Jessica and Sherry at the time that Jessica changed her estate plan to include Sherry and her husband.  The court highlighted the following evidence in support of this conclusion:

– After Jessica suffered her second stroke, she needed a walker but did not use it all of the time and, in early 2008, Jessica still occasionally drove a car;

– At the time of the change in the estate plan, Jessica had not yet suffered her third stroke, which led to her requiring a wheelchair and full-time care;

– Sherry had been working three to four hours a day for Jessica since March 2007;

– Sherry’s tasks included taking Jessica out to eat, cleaning Jessica’s home, and caring for Jessica’s dog;

– Sherry was unrelated to Jessica, and her age was not disclosed at trial;

– Little evidence was presented about Sherry’s business experience, while, on the other hand, evidence was presented that Jessica had been a successful realtor, had negotiated her own real estate transactions between 2000 and 2007, and had negotiated a good deal on a new purchase of a car around the time of the estate changes;

– Jessica’s financial advisor testified that Jessica continued to communicate with him until the last few months of her life and, while her speech had slowed, her mind was clear about what she wanted;

– There was much testimony that Jessica was strong-willed and domineering;

– While Sherry drove Jessica to the trust signing, Sherry was not a part of the lawyer’s conversation with Jessica about the changes to the trust; and

– The bank employee who added Sherry and her husband to Jessica’s bank account testified that Jessica expressed her wishes and knew what she was doing.

Because much of the evidence showed that Jessica, even in her later years, was not the type of person who would be influenced or allow another to gain superiority over her, Jessica’s family failed to show the existence of a confidential relationship.