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                                     Appellate Court                             Date: 2017.01.26
                                                                                 08:39:02 -06'00'




                  In re Estate & Trust of Weidner, 2016 IL App (4th) 160306



Appellate Court         In re ESTATE AND TRUST OF EVELYN K. WEIDNER, First
Caption                 Mid-Illinois Bank & Trust, N.A., Trustee of Gerald and Laveda
                        Weidner Trust; and James Gregory Peters, Petitioners-Appellees, v.
                        Lila Jolene Peifer, Patricia Miller, Carolyn S. Baker, Lyle J. Weidner,
                        Kevin Weidner, and Curtis Weidner, Respondents-Appellants).



District & No.          Fourth District
                        Docket No. 4-16-0306


Filed                   December 20, 2016



Decision Under          Appeal from the Circuit Court of Piatt County, No. 13-CH-45; the
Review                  Hon. Timothy J. Steadman, Judge, presiding.



Judgment                Affirmed.


Counsel on              John T. Wozniak (argued), of Fischer & Wozniak, P.C., of Urbana,
Appeal                  and Darrel F. Parish, of Parish & Castleman, LLP, of Decatur, for
                        appellants.

                        Denis Knipp Bates and Kenneth D. Reifsteck (argued), of Thomas,
                        Mamer & Haughey, LLP, of Champaign, for appellee.

                        Blake Weaver (argued), of Novak, Weaver & Solberg, of Urbana, for
                        petitioner James Gregory Peters.
     Panel                    PRESIDING JUSTICE KNECHT delivered the judgment of the court,
                              with opinion.
                              Justices Holder White and Pope concurred in the judgment and
                              opinion.

                                               OPINION

¶1         Respondents, Lila Jolene Peifer, Patricia Miller, Carolyn S. Baker, Lyle J. Weidner,
       Kevin Weidner, and Curtis Weidner, appeal from the trial court’s order finding James
       Gregory Peters (Greg) to be a descendant of Betty Peters for purposes of distribution under
       the Evelyn K. and Lyle F. Weidner, Sr. Trust and the Evelyn K. Weidner Children’s Trust.
       We affirm.

¶2                                          I. BACKGROUND
¶3         On November 26, 1967, Greg was born to Ron and Patricia Peters. In 1970, Ron and
       Patricia divorced. Patricia was granted custody of Greg, subject to Ron’s visitation rights.
       Greg resided with Patricia in the Champaign-Urbana area for a majority of his childhood.
¶4         In 1973, Ron moved in with Betty. In 1978, Ron and Betty were married. Between late
       1982 and early 1983, Greg resided with Ron and Betty in Farmer City. From November 16,
       1982, through January 13, 1983, Greg was enrolled in Farmer City schools.
¶5         On July 29, 1988, Evelyn K. and Lyle F. Weidner, Sr., created an irrevocable inter vivos
       trust—the Evelyn K. and Lyle F. Weidner, Sr. Trust—to provide for the extra and
       supplemental needs, comforts, and luxuries of their daughter Donna Weidner. The trust
       terminated upon Donna’s death, after which any balance was to be distributed to certain
       then-living children, grandchildren, descendants, or descendants of the named grandchildren
       of Evelyn and Lyle Sr. In relevant part, the trust directed the distribution of one-fifth of the
       trust res to the “Settlors’ daughter, BETTY JEAN PETERS, if then living; and if not then
       living, to her descendants, per stirpes, then living; and if there are no such descendants of
       said BETTY JEAN PETERS then living, then in equal portions to the [other then-living]
       beneficiaries.”
¶6         That same day, Evelyn executed the Last Will and Testament of Evelyn K. Weidner,
       which created a testamentary trust—the Evelyn K. Weidner Children’s Trust. In her will,
       Evelyn provided Lyle Sr. with a life estate in her farm real estate. Subject to Lyle Sr.’s life
       estate, Evelyn provided that the farm real estate was to pass to the trustee of the Evelyn K.
       Weidner Children’s Trust. Upon Lyle’s death, the income from the farm real estate was to be
       distributed to certain then-living children, grandchildren, descendants, or descendants of the
       named grandchildren of Evelyn and the trustee of the Evelyn K. and Lyle F. Weidner, Sr.
       Trust. In relevant part, the trust directed one-sixth of the income “to my daughter, BETTY
       JEAN PETERS, if then living; and if not then living, to her descendants, per stirpes, then
       living; and if there are no such descendants of said BETTY JEAN PETERS then living, then
       in equal portions to the [other then-living and trust] beneficiaries.” The trust terminated upon
       Donna’s death, after which any balance was to be distributed to certain then-living children,
       grandchildren, descendants, or descendants of the named grandchildren of Evelyn. In
       relevant part, the trust directed the distribution of one-fifth of the trust res to “my daughter,


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       BETTY JEAN PETERS, if then living; and if not then living, to her descendants, per stirpes,
       then living; and if there are no such descendants of said BETTY JEAN PETERS then living,
       then in equal portions to the [other then-living] beneficiaries.”
¶7         In November 1989, Evelyn died and her will was admitted to probate.
¶8         In September 1990, Betty adopted Greg. Betty was 47 years old, and Greg was 22 years
       old. The adoption file was sealed.
¶9         In July 1996, Lyle Sr. executed the Last Will and Testament of Lyle F. Weidner, Sr.,
       which excluded Greg by name. In August 1997, Lyle Sr. executed his first codicil to that
       will, which defined Lyle Sr.’s descendants as his own children and their “lawful, natural,
       blood descendants,” including persons adopted by them prior to attaining the age of 18.
¶ 10       In December 2000, Lyle Sr. died. The trustee of the Evelyn K. Weidner Children’s Trust
       began making income payments from Evelyn’s farm real estate to the remainder
       beneficiaries, including Betty.
¶ 11       In January 2005, Betty died. Following Betty’s death, the portion of the income payments
       from the farm real estate earmarked for Betty or her descendants was divided amongst the
       other then-living beneficiaries. Greg never received income payments from the farm real
       estate.
¶ 12       In September 2012, Donna died. The res from the Evelyn K. and Lyle F. Weidner, Sr.
       Trust was distributed, none of which went to Greg. Following that distribution but before the
       full distribution of the Evelyn K. Weidner Children’s Trust, Greg asserted claim to a share of
       each trust.
¶ 13       At a February 2016 hearing, Greg testified regarding his relationship with Betty and the
       Weidner family. Greg knew Betty since he was six. Betty transported Greg to and from
       Patricia’s home for visitation with Ron. Betty was always present during visitation. Greg
       spent time with Betty and Ron every other weekend, if not every weekend. Betty had always
       talked about having Greg as her son. Betty attended Greg’s high school graduation. On
       Fridays, Betty and Greg would spend time at Evelyn’s home. Greg attended Weidner family
       vacations and spent time with the Weidner family during holidays, including his birthday. Up
       until her death, Greg received birthday cards and presents from Evelyn.
¶ 14       Greg also testified regarding the circumstances surrounding his adoption. Greg stated:
                “I think Betty would have probably tried to adopt me earlier in life but since I had
                such a good relationship with my mother, I don’t think Betty ever wanted to cross that
                boundary and then make it a fight, you know, because they got along. And Betty
                came to me around that time and said that she would really like to adopt me for estate
                reasons, and you know, Betty really loved me. I mean, you know, we shared a great I
                guess mother-son relationship the whole time, you know, I was growing up. We never
                had any fights or any arguments or any of that sort of effect. And this, the way she
                told me about this was if she adopted me this would give me the opportunity to be in
                her estate, plus it wouldn’t take any rights away from my mother. It wouldn’t be like
                she was stepping on my mother’s feet to adopt me.”
       When later again questioned regarding the adoption, Greg stated:
                    “I mean it was for the estate itself. Betty loved me a lot and she wanted to make
                sure that if something happened to her before it happened to my father, that she
                wanted me to have a little bit of something. That was the conversation we had.”

                                                  -3-
       At the time of the adoption, Greg was living 10 miles from Betty and Ron and had been
       Betty’s step-son for 12 years. Greg later moved away for a couple of years but ultimately
       returned and spent much of his time with Betty and Ron. Greg was at Betty’s bedside when
       she passed. Greg considered Betty to be his mother. Greg first told Patricia about the
       adoption after Betty’s death.
¶ 15       In April 2016, the trial court entered a written order finding Greg to be a descendent of
       Betty for purposes of distribution under both trusts. Specifically, the court found, given the
       statutory presumption and the lack of language in the trust instruments suggesting any intent
       to exclude adopted children, Greg was entitled to take under the trusts as Betty’s descendant.
       The court further rejected respondents’ argument suggesting the adoption was a subterfuge
       similar to the adoptions occurring in Cross v. Cross, 177 Ill. App. 3d 588, 532 N.E.2d 486
       (1988), and Dixon v. Weitekamp-Diller, 2012 IL App (4th) 120209, 979 N.E.2d 98. The court
       found:
                   “Greg first became acquainted with Betty when he was [six] years old. Their
               relationship continued for over 30 years until her death in 2005. It is uncontradicted
               that Betty provided transportation to accommodate child visitation, that she took a
               special interest in Greg’s activities as a youth, that Greg moved in with Betty and his
               father for a couple of months or so while he was in high school, that she had
               conversations with Greg’s biological mother regarding his well being, and that Betty
               attended Greg’s high school graduation. Greg was at Betty’s bedside during her last
               few days. It is clear from the evidence that they shared a close relationship with Betty
               being more actively involved in Greg’s life than might normally be expected of a step
               parent. The evidence shows that through Betty[,] Greg became a regular participant in
               Weidner family activities such as holiday and birthday celebrations and family
               vacations.
                   There is little doubt that when Betty adopted Greg she was motivated in part by a
               desire to provide a means for him to be her descendant for purposes of inheritance,
               however, it is also abundantly clear from the evidence that her intent to provide for
               him financially in this manner was also the product of traditional parental desires. The
               court finds that the evidence fails to show the adoption was done solely for the
               purpose of making Greg an heir. There was no subterfuge as existed in Cross and like
               cases.” (Emphasis in original.)
¶ 16       This appeal followed.

¶ 17                                         II. ANALYSIS
¶ 18       On appeal, respondents argue the trial court erred in concluding Greg was a descendent
       of Betty for purposes of distribution under the Evelyn K. and Lyle F. Weidner, Sr. Trust and
       the Evelyn K. Weidner Children’s Trust. Specifically, respondents argue (1) the record
       demonstrates that Evelyn and Lyle Sr. intended to exclude Greg from taking under the trusts
       and (2) Greg’s adoption was an act of subterfuge for the purpose of distribution under the
       trusts. We review de novo a trial court’s legal conclusions as to the construction and legal
       effect of a trust document. Church of the Little Flower v. US Bank, 2012 IL App (4th)
       120266, ¶ 15, 979 N.E.2d 106.



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¶ 19                           A. Statutory Presumption and Trust Language
¶ 20       Section 2-4(e) of the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. 110½, ¶ 2-4(e) (now
       755 ILCS 5/2-4(e) (West 2014))) provides: “For the purpose of determining the property
       rights of any person under any instrument executed on or after September 1, 1955, an
       adopted child is deemed a child born to the adopting parent unless the contrary intent is
       demonstrated by the terms of the instrument by clear and convincing evidence.” See also
       In re Estate of Brittin, 279 Ill. App. 3d 512, 516, 664 N.E.2d 687, 690 (1996) (“The
       adoptee, regardless of his age upon adoption, attains the status of a natural child of the
       adopting parents.”). Under the statutory presumption, Greg is unquestionably entitled to be
       treated as a beneficiary under the trusts.
¶ 21       In an attempt to rebut that presumption, respondents assert the record demonstrates
       Evelyn and Lyle Sr. intended to exclude Greg from taking under the trusts. In support,
       respondents highlight (1) the Wiedners’ previous relationship with Greg, yet the lack of
       explicit inclusion as a beneficiary under the trust instruments, and (2) Lyle Sr.’s later
       exclusion of Greg in his will.
¶ 22       To rebut the statutory presumption in favor of adoptees, the evidence “must be something
       more in the terms of the instrument itself to demonstrate, at a minimum, that the testator
       actually considered the contingency of adoption.” First National Bank of Chicago v. King,
       165 Ill. 2d 533, 540-41, 651 N.E.2d 127, 131 (1995); see also Continental Bank, N.A. v.
       Herguth, 248 Ill. App. 3d 292, 300-01, 617 N.E.2d 852, 858 (1993) (Inglis, P.J., dissenting);
       In re Estate of Roller, 377 Ill. App. 3d 572, 582, 880 N.E.2d 549, 557 (2007). The trust
       instruments direct the distribution of the income and/or res to Betty “if then living; and if not
       then living, to her descendants, per stirpes, then living.” This language does not provide clear
       and convincing evidence that Evelyn and Lyle Sr. intended to exclude adopted children from
       taking under the trusts. See King, 165 Ill. 2d at 541, 651 N.E.2d at 131 (finding the testator’s
       use of the terms “lawful descendants” and “per stirpes” was not sufficient to demonstrate by
       clear and convincing evidence an intent to exclude adopted children from taking under the
       trust); Estate of Roller, 377 Ill. App. 3d at 584, 880 N.E.2d at 559 (finding the testator’s use
       of the terms “natural children” and “heirs of the body” was not sufficient to demonstrate by
       clear and convincing evidence an intent to exclude adopted children from taking under the
       trust). We reject respondents’ attempt to rely on speculative extrinsic evidence to
       demonstrate a contrary intent. Ill. Rev. Stat. 1989, ch. 110½, ¶ 2-4(e) (requiring the court to
       evaluate whether a contrary intent appears by the terms of the instrument). Respondents have
       failed to rebut the statutory presumption by clear and convincing evidence.

¶ 23                              B. Limited-Use Subterfuge Exception
¶ 24       Respondents assert that, regardless of the statutory presumption, we should invoke the
       limited-use subterfuge exception to preclude Greg from taking under the trusts. Respondents
       argue Greg’s adoption was an act of subterfuge for the purpose of distribution under the
       trusts. In support, respondents highlight (1) Greg’s age when he was adopted, (2) the fact the
       adoption occurred one year after Evelyn’s will was admitted to probate, (3) the fact Greg did
       not tell his biological mother about the adoption until Betty’s death, and (4) Greg’s testimony
       indicating Betty wanted to adopt him for estate reasons.
¶ 25       In 1988, the First District addressed the concept of a limited-use subterfuge exception. In
       Cross, 177 Ill. App. 3d at 589, 532 N.E.2d at 487-88, the testator died, leaving her estate in

                                                   -5-
       trust and granting her son a testamentary power of appointment to distribute the res of the
       trust to any of her descendants. Any part of the trust estate not effectively appointed by the
       testator’s son was directed to be divided equally amongst the testator’s husband’s nephews.
       Id. at 590, 532 N.E.2d at 488. One month after the testator’s death, her 49-year-old son
       adopted the 36-year-old defendant as his son and then exercised his testamentary power of
       appointment in favor of the defendant as the grandson and descendant of the testator. Id. The
       exercise of the power of appointment was later challenged, and the trial court found the
       defendant was not a descendant of the testator. Id. On appeal, the court found the trust
       language demonstrated the testator’s desire to have her estate remain in her family unless the
       family chose to give it to charity. Id. The court further found that to allow the testator’s son
       to select by adoption the one to take his mother’s estate would disregard the intent of the
       trust, a use of the adoption process the court could not condone. Id. at 591, 532 N.E.2d at
       488. Specifically, the court noted: “The adoption of an adult solely for the purpose of making
       him an heir of an ancestor under the terms of a testamentary instrument known and in
       existence at the time of the adoption is an act of subterfuge.” Id. at 591, 532 N.E.2d at
       488-89. The defendant attempted to argue extrinsic facts to demonstrate the adoption was
       motivated by traditional parental desires. Id. at 592, 532 N.E.2d at 489. The court found,
       while it was unnecessary to review such facts, the record demonstrated any such argument to
       be unpersuasive. Id.
¶ 26       Almost 24 years later, our court had the opportunity to address and apply the limited-use
       subterfuge exception. In Dixon, 2012 IL App (4th) 120209, ¶ 8, 979 N.E.2d 98, Hughes was
       the life-estate income beneficiary of three trusts created by family members. Those trusts
       provided for the res of each to be distributed to Hughes’ children at his death; however, if
       Hughes were to die without children, the res of each trust would go to Hughes’ sister’s
       children. Id. ¶¶ 1, 10-14. Eighty-seven-year-old Hughes, who had previously been unmarried,
       married his 71-year-old former assistant, Barbara. Id. ¶ 2. At the age of 94, Hughes adopted
       Barbara’s four adult daughters, all of who were in their 50s. Id. ¶¶ 28, 30. Following Hughes’
       death, the trial court found Barbara’s daughters were not entitled to take under the trusts as
       (1) the sole purpose of the adoptions was to take under the trusts and (2) the settlors of the
       trusts did not intend for the remainder interests to pass to nonfamily members who were
       adopted long after they became adults and were never raised by the family. Id. ¶ 32. On
       appeal, we found the trusts demonstrated the testators’ intent to have the res of the trust
       remain in the testators’ family, an intent that would be thwarted by allowing Barbara’s
       daughters to take under the trusts. Id. ¶ 41. We further declined to enforce the statutory
       presumption and treat Barbara’s daughters as Hughes’ biological children as the record
       revealed their adoptions were for the sole purpose of making them beneficiaries under the
       trusts. Id. ¶ 39.
¶ 27       We are now tasked with determining whether the facts of this case warrant applying the
       limited-use subterfuge exception. In making that determination, we must consider the entire
       record to determine whether the adoption was an act of subterfuge for the sole purpose of
       taking under the trusts.
¶ 28       The record reveals a relationship significantly different than the relationships detailed in
       Cross and Dixon. Greg and Betty maintained an active, close relationship for over 30 years.
       Betty was his stepmother. She was an integral part of Greg’s childhood, and Greg considered
       Betty as a mother. Greg lived with Betty and Ron for a period while in high school. Greg


                                                  -6-
       became a regular participant in Weidner family holidays and vacations. During his
       childhood, Betty had expressed a desire to adopt. While Greg later moved away, he
       ultimately returned and spent much of his time with Betty and Ron.
¶ 29       Betty adopted Greg when he was 22 years old. At that time, Greg was living 10 miles
       from Betty and Ron. Greg suspected Betty would have adopted him earlier in life but she
       wanted to avoid stressing the relationship with Greg’s biological mother. According to Greg,
       Betty sought to adopt for “estate reasons” and because she “really loved [him].” Greg
       suggested the adult adoption allowed him “to be in her estate” without taking away any of his
       biological mother’s rights.
¶ 30       As the trial court succinctly stated:
                   “There is little doubt that when Betty adopted Greg she was motivated in part by a
              desire to provide a means for him to be her descendant for purposes of inheritance,
              however, it is also abundantly clear from the evidence that her intent to provide for
              him financially in this manner was also the product of traditional parental desires.”
       We find the record fails to demonstrate Greg’s adoption occurred solely for the purpose of
       taking under the trusts. We agree with the trial court’s judgment and decline to invoke the
       limited-use subterfuge exception to preclude Greg from taking under the trusts.

¶ 31                                      III. CONCLUSION
¶ 32      We affirm the trial court’s judgment.

¶ 33      Affirmed.




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