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?

In Estate of Boyar, the Supreme Court of Illinois had an opportunity to address an important question of Illinois trust law:  whether the “doctrine of election” applicable to will contests should be extended to challenges to amendments to living trusts in cases where the trust serves the same purpose as a will.  The trial court decided it did.  The Illinois appellate court also decided it did.  The Illinois Supreme Court, however, decided that there was no reason for the lower courts to address whether the doctrine of election should be extended to living trusts because that doctrine couldn’t be invoked under the circumstances present in the case.  Nevertheless, we get some good insight into when the doctrine of election could come into play in whatever contexts it might be applicable.

First, some quick facts.