                             2016 IL App (2d) 150084
                                  No. 2-15-0084
                            Opinion filed March 8, 2016
______________________________________________________________________________

                                           IN THE

                            APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE ESTATE OF DIANE MENDELSON,         ) Appeal from the Circuit Court
                                       ) of Lake County.
      Petitioner and                   )
      Counterrespondent-Appellee,      )
                                       )
v.                                     ) No. 11-P-919
                                       )
MICHAEL MENDELSON,                     )
                                       ) Honorable
      Respondent and                   ) Michael J. Fusz,
      Counterpetitioner-Appellant.     ) Judge, Presiding.
______________________________________________________________________________

       PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
       Justices Zenoff and Spence concurred in the judgment and opinion.

                                          OPINION

¶1     The instant controversy arises primarily from a dispute as to whom the decedent, Diane

Mendelson, intended to inherit her Highland Park home. In 2005, she signed a deed that placed

the home in joint tenancy with her son Michael Mendelson. In 2006, she prepared a trust that

divided her estate (including the home) equally among her four sons. In 2011, three months

before she died, she revoked the 2006 trust and created a new trust that indicated, among other

things, that Michael was to receive the home via the 2005 joint tenancy deed.        After the

decedent’s death, the circuit court of Lake County considered competing claims between

Michael and his three brothers as to their interests in the Highland Park home and determined
2016 IL App (2d) 150084


that the four brothers had equal interests in the home. The trial court also rejected Michael’s

claim that he was entitled to compensation for the care that he provided to the decedent prior to

her death.

¶2     On September 9, 2015, this court entered an opinion determining that the trial court

properly rejected Michael’s claim for compensation but erred in not awarding him a 100%

interest in the Highland Park home. This court held that the decedent conveyed a 100% interest

in the home to Michael via her 2011 trust. We therefore reversed the trial court’s decision,

which found that Michael was entitled to 25% of the Highland Park home. On October 14, 2015,

the decedent’s estate filed a petition for rehearing. Upon considering that petition, as well as

Michael’s response and the estate’s reply, we now determine that the decedent intended to

convey to Michael an interest in her home only via the 2005 joint tenancy deed, not via the 2011

trust. As that deed was not valid, Michael was in fact entitled only to 25% of the Highland Park

home. We therefore grant the petition for rehearing and now affirm the trial court’s decision.

¶3                                      BACKGROUND

¶4     The decedent had four sons: Robert, Michael, Ronald, and Daniel Mendelson. She

owned and lived at a home located at 1509 Arbor Avenue in Highland Park. In 2004 or 2005,

Michael, along with his girlfriend and his two children, moved in with the decedent.

¶5     On July 15, 2005, the decedent executed a deed to her home, placing it in joint tenancy

with herself and Michael as the joint tenants (the 2005 deed). Neither the decedent nor Michael

recorded the deed during the decedent’s lifetime. Michael explained that the decedent was a

senior citizen who received a property tax benefit, allowing her to defer payment of a substantial

portion of those taxes. Both Michael and the decedent were concerned that if she recorded the

deed she would lose that property tax benefit.



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¶6     On June 16, 2006, the decedent signed estate planning documents prepared by attorney

Larry Magill. The documents included: (1) a last will and testament; (2) the Diane Mendelson

Living Trust, dated June 16, 2006 (the 2006 trust); (3) a Property Power of Attorney; (4) a

Health Care Power of Attorney; (5) a Living Will; and (6) a Deed in Trust (the 2006 deed). The

2006 deed transferred the Highland Park home from the decedent to the 2006 trust. The 2006

trust provided that, after her death, her estate was to be divided equally among her four sons. On

September 18, 2006, the 2006 deed was recorded with the Lake County Recorder of Deeds.

Magill testified that the decedent never told him that she had placed her home in joint tenancy

with Michael. Rather, she told him that Michael had been pressuring and threatening her to sign

some documents that she had not read and did not understand. She also told him that she wanted

to be even and fair to her four sons and wanted to leave her property to her sons in equal shares.

¶7     In March 2011, the decedent refinanced the mortgage on the Highland Park home

through Fifth Third Bank. In the refinancing settlement statement, she listed herself as the sole

owner of the property.

¶8     On July 1, 2011, the decedent executed a new trust (the 2011 trust). The 2011 trust

designated the decedent as trustee and Michael as successor trustee. The 2011 trust stated that it

revoked any and all prior trusts. The 2011 trust also provided in relevant part:

                                            “Article 3

                                        Gifts on My Death

       On my death, the trustee shall distribute the following gifts from the trust estate:

       3.1 Tangible Personal Property. ***

       3.2 Gifts of Remaining Tangible Personal Property. ***

       3.3 Gift of Balance of the Trust Estate. ***



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       3.4 Real-Property. On July 14, 2005 I had quit-claimed the property located at 1509

       Arbor Avenue Highland Park, Illinois, to my son, Michael Mendelson, in Joint Tenancy

       with the Right of Survivorship as such it was my intent at that time as it is my intent

       today (i.e. the execution of this instant Living Trust) that the real property, located at

       1509 Arbor Avenue Highland Park, Illinois, upon by [sic] death shall become the sole

       and exclusive property of my son, Michael Mendelson.

       3.5 Survivorship. ***”

¶9     On October 1, 2011, the decedent died.

¶ 10   On October 5, 2011, Michael recorded the 2005 deed. On November 14, 2011, Michael

recorded the 2011 trust along with a deed identical to the 2005 deed.

¶ 11   On November 22, 2011, the decedent’s estate filed a petition to determine the proper

distribution of the Highland Park home. The petition requested that the court declare the real

property to be legally titled in the name of the 2006 trust, or, in the alternative, if the trial court

declared the 2006 trust revoked, that the property be subject to probate and distributed according

to the laws of intestacy.

¶ 12   On February 12, 2012, Michael filed a custodial care claim against the estate pursuant to

section 18.1-1 of the Probate Act of 1975 (755 ILCS 5/18.1-1 (West 2012)). Michael sought

$125,000 for the personal care that he provided to the decedent.

¶ 13   On March 19, 2012, Michael filed a counterpetition to determine the disposition of the

Highland Park home.         He claimed that the 2005 deed and the 2011 trust entitled him to

ownership of that home. The counterpetition further alleged that he had paid the mortgage, real

estate taxes, and upkeep and remodeling of the home out of his own funds from March 2004

through the date of the filing of the counterpetition.



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¶ 14   From April 21 to May 9, 2014, the trial court conducted a hearing on the parties’

competing petitions. As to the Highland Park home, Michael testified that, in lieu of rent, the

decedent had him pay the monthly mortgage of $527. This was less than he had been paying for

a one-bedroom apartment in Chicago ($599).

¶ 15   Michael testified that he cooked meals for the decedent daily, that he made breakfast for

her every morning, and that he assisted her in cleaning the house and doing laundry. The

decedent stopped driving during the last three or four years of her life. After that, he took her to

physical therapy sessions about 12 times per month. He helped her take medications, took her

shopping, helped her with laundry, and ran errands for her.

¶ 16   Daniel testified that he lived about 15 minutes from the decedent and that he visited her

about once a week. He believed that, between 2006 and 2011, she was not eating with Michael

or his family and no one was preparing her food, because she had asked him (Daniel) to order

her Meals on Wheels. On 10 occasions from 2006 to 2011 when he was there at dinner time, he

observed that she had already eaten and was in her room. He never saw her eat with the family

on those occasions. She had a home caretaker/companion from Catholic Charities between 2004

and 2011 who would do her laundry, pick things up for her, cook for her, and bathe her.

¶ 17   On September 12, 2014, the trial court entered its ruling, determining that the decedent’s

estate should be divided evenly among the four sons. The trial court explained that the 2005

deed did not validly transfer the property into joint tenancy, because the decedent did not intend

to convey any present interest to Michael when she signed it. The trial court found that the 2006

trust was valid. The trial court further found that the estate had not presented sufficient evidence

that Michael had exerted undue influence before or when the 2011 trust was made and executed.

The trial court therefore determined that the 2011 trust was valid and that it effectively revoked



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the 2006 trust. However, because no deed was executed or recorded to transfer the Highland

Park home into the 2011 trust, the 2011 trust did not include the Highland Park home. As the

2011 trust revoked the 2006 trust, and the 2006 deed was now funding a revoked trust, the trial

court found that the Highland Park home reverted to the decedent’s probate estate (which would

be divided equally among the four sons according to the laws of intestacy).

¶ 18   The trial court further denied Michael’s claim against the estate because he had failed to

demonstrate that he had “dedicate[d] himself” to taking care of a disabled person. The trial court

explained that there was evidence that he had provided only minimal assistance to the decedent

with regard to transportation, providing meals, or helping with household tasks. Additionally,

the trial court found that there was no evidence as to how much time he spent with her on a daily

or weekly basis; there were no calendars, diaries, or other records documenting any activities

with the decedent; and the statements by the decedent to Michael’s brothers (which were

admitted without objection) indicated that Michael, his girlfriend, and his children did not make

it a regular practice to include her in activities of daily living, such as meals. As such, the trial

court found that Michael did not “personally care” for the decedent and was not entitled to

statutory compensation. Michael thereafter filed a timely notice of appeal.

¶ 19                                        ANALYSIS

¶ 20   Michael’s first contention on appeal is that the trial court erred in determining that the

decedent did not validly transfer the Highland Park home into joint tenancy with him in 2005. In

order for a deed to transfer title to property, the deed must be signed, sealed, and delivered.

Nofftz v. Nofftz, 290 Ill. 36, 41 (1919). Even if a deed is executed, it conveys no title unless it is

proven that the deed was delivered. Id. The mere placing of a deed in the grantee’s hands does

not in and of itself constitute a delivery. Sample v. Geathard, 281 Ill. 79, 82 (1917). Whether a



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deed has been delivered depends upon the intention of the grantor, and the question of that

intention is a question of fact depending on the circumstances of each case. Stanford v. Stanford,

371 Ill. 211, 215 (1939). For a deed to be valid as an instrument of conveyance, there has to be

delivery with the intention of passing title at that time. Rouland v. Burton, 296 Ill. App. 138,

142-43 (1938). If the deed is intended to become operative only in the event of the grantor’s

death, it would be in law a testamentary disposition and would have to conform to the

requirements of the Statute of Wills. Id.

¶ 21   There is a presumption that a deed has been delivered in a “case of a voluntary settlement

by a parent upon a child in which there is a reservation of a life estate in the parent.” Nofftz, 290

Ill. at 42. This presumption may be rebutted, however, by a showing that it was not the intention

of the grantor to deliver the deed. Sample, 281 Ill. at 82. Where the grantee obtains possession

of and records a deed after the grantor’s death, delivery is not presumed and any presumption of

delivery has no force when confronted with evidence, even of the slightest character. Foster v.

Foster, 273 Ill. App. 3d 106, 110 (1995). A trial court’s finding that delivery did or did not

occur will not be disturbed unless it is against the manifest weight of the evidence. In re Estate

of Wittmond, 314 Ill. App. 3d 720, 728 (2000).

¶ 22   Here, we cannot say that the trial court’s determination that the decedent did not deliver

the deed to Michael is against the manifest weight of the evidence. First, we observe that,

although there was a presumption, based on the mother-son relationship between the decedent

and Michael, that there was a valid delivery of the deed (Nofftz, 290 Ill. at 42), that presumption

was cancelled out by the failure of Michael and the decedent to record the deed prior to her death

(Foster, 273 Ill. App. 3d at 110).          Second, we note that the decedent made several

representations to others that she was the sole owner of the property.              She made this



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representation to the State of Illinois in order to get a deferment on paying part of her property

taxes. She made this representation to Magill in 2006 when she placed the Highland Park home

into a trust. Further, she made this representation to a bank when she refinanced the Highland

Park home in March 2011. The decedent’s representations to others that she was the sole owner

of the property indicate that she did not intend the 2005 deed to deliver any present interest in the

Highland Park home to Michael.

¶ 23   Moreover, we note that Michael did not exercise dominion over the property. Prior to the

decedent’s death, he did not indicate to his brothers or anyone other than the attorney who

drafted the 2005 deed that he was the owner of the Highland Park home. Although he made

some mortgage payments on the property, Michael explained that the decedent viewed those

payments as being made in lieu of rent. Payment of rent on the property suggests that he did not

really own that property. See id. at 110-11. Further, although Michael argues that he made some

payments associated with maintaining the home, we note that the evidence suggests that many of

these payments were made from checking accounts that were commingled with the decedent’s

assets. As such, and in conjunction with the trial court’s finding that Michael was not a credible

witness, there is no basis for us to find that the trial court’s determination that the decedent did

not intend to deliver the 2005 deed to Michael is against the manifest weight of the evidence.

¶ 24   Michael’s second argument on appeal is that the trial court erred in not finding that he

was entitled to the Highland Park home based on the decedent’s 2011 trust. In order to resolve

this contention, we must determine whether the decedent ever intended that the Highland Park

home be part of her 2011 trust.

¶ 25   A court’s primary concern in construing a trust is to discover the settlor’s intent, which

the court will effectuate if it is not contrary to law or public policy. First National Bank of



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2016 IL App (2d) 150084


Chicago v. Canton Council of Campfire Girls, 85 Ill. 2d 507, 513 (1981). The settlor’s intent is

determined as of the time the instrument is executed. Id. In determining the settlor’s intent, the

court must consider the plain and ordinary meaning of the words used and must consider the

entire document. Id. at 514. The court may also consider the surrounding circumstances when

the instrument was executed, to the extent that they may aid in determining the settlor’s intent in

using certain language. Id. If the intent may be gathered from the language of the document,

without reference to the rules of construction, there is no need to use those rules. Id.

¶ 26    Here, the decedent set forth in article 3 of the 2011 Trust the gifts she wanted distributed

from her trust estate. As subheading 3.5 refers to “Survivorship,” it is readily apparent that,

despite the heading, not everything listed under article 3 was intended to be a gift from the trust

estate. In subheading 3.3, the decedent referred to a gift of the “balance” of the trust estate. A

“balance” is the “residue or remainder, and, in a general sense, may be defined as what remains

or is left over.” Black’s Law Dictionary 142 (6th ed. 1990). A “residue” is “[t]he surplus of a

testator’s estate remaining after all the debts, taxes, costs of administration, and particular

legacies have been discharged.” Id. at 1310. Based on the above meanings of the terms

“balance” and “residue,” the reasonable inference is that the decedent intended that no gifts from

the trust estate were listed after subheading 3.3, as that subheading covered everything that was

“remaining.” As the reference to the Highland Park home occurs under subheading 3.4 (after

subheading 3.3), the logical inference is that the decedent did not intend the Highland Park home

to be part of the trust estate.

¶ 27    This determination is bolstered by the plain language of subsection 3.4. Nowhere in that

subsection did the decedent indicate that she intended to convey or transfer any interest in the

Highland Park home to the trust estate. Rather, by explaining that she had previously quit-



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claimed the property to Michael in joint tenancy, the decedent was actually explaining why she

was not transferring the Highland Park home to the trust. As the plain language of article 3

demonstrates that the decedent did not intend to convey the Highland Park home to the trust,

Michael cannot receive an ownership interest in the home on the basis of the trust.

¶ 28   We next turn to Michael’s third contention, that the trial court erred in denying his claim

under section 18-1.1 of the Probate Act (755 ILCS 5/18-1.1 (West 2012)).              That section

provides:

       “Any spouse, parent, brother, sister, or child of a disabled person who dedicates himself

       or herself to the care of the disabled person by living with and personally caring for the

       disabled person for at least 3 years shall be entitled to a claim against the estate upon the

       death of the disabled person. The claim shall take into consideration the claimant’s lost

       employment opportunities, lost lifestyle opportunities, and emotional distress experienced

       as a result of personally caring for the disabled person.” Id.

In order to recover under section 18-1.1, a claimant must demonstrate that he dedicated himself

to the care of the decedent. Id. “Dedicate” means to commit to something as a constant goal or

way of life. In re Estate of Jolliff, 199 Ill. 2d 510, 517 (2002). Although not dispositive, factors

to consider as to whether a claimant dedicated himself to the decedent’s care include whether the

claimant lost employment opportunities, lost lifestyle opportunities, and suffered emotional

distress due to his care of the decedent. In re Estate of Lower, 365 Ill. App. 3d 469, 478-79

(2006) (citing 755 ILCS 5/18-1.1 (West 2004)). A trial court’s finding as to whether a claimant

is entitled to compensation pursuant to section 18-1.1 will not be disturbed unless that finding is

against the manifest weight of the evidence. Id. at 479.




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¶ 29   We do not believe that the trial court’s finding that Michael did not dedicate himself to

the care of the decedent is against the manifest weight of the evidence. Michael acknowledged

that he did not lose any employment opportunities due to his care of the decedent. He did not

testify as to how much time he spent with the decedent on a daily or weekly basis. As the trial

court found, Michael’s lifestyle opportunities actually improved after he moved in with the

decedent, as he was able to live in a four-bedroom house, pay less than he did when he

previously lived in a one-bedroom apartment, and send his children to the Highland Park

schools. There is no indication in the record that Michael suffered any emotional distress due to

his care of the decedent.

¶ 30   In so ruling, we reject Michael’s argument that the numerous things that he did on the

decedent’s behalf—cooking for her daily, and regularly assisting her by house cleaning, doing

laundry, administering medications, and driving her to medical appointments and other personal

errands—warranted his being compensated under the Probate Act. The trial court specifically

found that Michael was not credible, and thus his testimony is not a basis to disturb the trial

court’s ruling. See In re Marriage of Miller, 2015 IL App (2d) 140530, ¶ 41 (reviewing court

will not disturb trial court’s credibility determinations).

¶ 31   Further, even if we were to overlook the trial court’s credibility determination, we note

that Michael’s insistence that he did a lot of things for his mother over a six-year period does not

necessarily rise to a level of dedication that merits his being compensated. Cf. Lower, 365 Ill.

App. 3d at 478-79 (claimant showed dedication to decedent’s care by watching decedent,

monitoring his needs, sleeping next to him, and awaking several times each night to alert the

caretaker of problems decedent was having).




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¶ 32   Moreover, we reject Michael’s claim that he is entitled to compensation under the

Probate Act because he paid numerous bills on the decedent’s behalf. Claims for custodial care

under section 18-1.1 are in addition to other monetary claims, not in place of them. See In re

Estate of Hale, 383 Ill. App. 3d 559, 564-65 (2008).

¶ 33                                    CONCLUSION

¶ 34   For the reasons stated, we affirm the judgment of the circuit court of Lake County.

¶ 35   Affirmed.




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