trust the doctrine of election is not statutory in nature but has been developed and expanded by case law and this usually by in the context of will simply put under the doctrine of election one can not simultaneously accept benefits conferred by a will while setting up claims contrary to the terms of the document itself the appellant in this case and hand robert a boy or not to be confused with robert either way or who is that the seed and was not accepting any benefit under the sixth amendment to his father's living trust and have to same time setting up claims contrary to the document thousand and ten leaving a will and a trust the trust which restated twice by deceiving and nearly after amended six separate times by that to see that the northern trust in robert remained robert filed his three count titian to contest the sixth amendment on september twenty seventh two thousand and ten the petition included allegations that his father lack the mental capacity to decisions trust was executed on april twenty seventh two thousand and ten when the decision was suffering from dementia the sixth amendment was executed within one month of  personal property among themselves pursuant to the trust on may twenty fifth two thousand and ten and july sixteenth two thousand and ten all the children were present and they a granting the trustees motion to dismiss the trial court and appellate court in applying the doctrine of election the reason they aired is because it doctrine of election is based on equity what's fair circumstances of the individual case and not just to a bright line rule applying the same concept here this court should look to the totality of all the facts and circumstances and not just and i agree that whether the doctor question is should be applied to trust but in this case what we're dealing with is just a separable sixth amendment to the trust so he issue is whether the doctrine of election should case that did apply the doctrine of election to a trust but in that case the facts were completely different in that case he petitioner i had received  property and then in addition and in the burnett case what he was trying to do with fish was trying to do was overthrow in turn over the entire trust scheme in our case we're not we're not trying to do that we're not trying to overthrow the entire trust scheme fact the sixth amendment has absolutely nothing to do with distributions our client my client robert would receive the exact same distribution doctrine should or should not apply if if you are not or you are in for a blanket rule that the god of election should not apply to any trust under any circumstances correct i think that i agree and for your honor i am not arguing that it should never apply to any trusts at any time i think what the court should do is look at all the facts and circumstances and not just apply a bright line rule to a trust or to a will or tenney document and in this case what we're doing with this is strictly an amendment to a trust if this amendment fails the trust along with amendments one through f would continue on and stay in place there is in fact a separable severability provision that would provide as such so the way i'm looking at it is the sixth amendment is a document in itself separate from the trust and and the amendments one through five yes you look at the entire document or construction issues to understand what the intentions were of the deceit and but the  fairly let's let's look at the core issue of the case robert filed a petition true move a trustee that was improperly appointed by his father when his father was suffering from dementia the fact that robert and siblings divided up this property and six one nine motion so we never got to point but but to answer the question is it make a difference i think it does i the court has made it clear that one of the exceptions to the doctrine of elect would be important and should be a factor that should be considered and whether there was a knowing acceptance of the personal property now in this case what we do know is that robert and his siblings did divide up the personal property amongst themselves shortly after their father passed away and they did this because different people were coming from out of town they met together at the family home there was no disagreement they all divided up the property among amongst themselves there was no involvement of attorneys and and and there was no issue at that time to divide up the property amongst themselves now they divide the property and no issues whatsoever no complaints and then the context of this case is that there was a then a citation to discover that was  in november which is two months after the filed a petition to contest the sixth amendment that it is when they're included a ever see eight that robert did sign showing that he did receive the personal property and i think it's also important to note though that the property was being removed as well because the home was owned by mike client's mother and  were in the process of selling the home and in order to sell the home they were dividing up the personal property so they could clear it out so that the home that was owned by a totally separate trust the mother's trust could then be sold in a residential sale so i think this court should look at all these different factors and not just apply black and white bright line rule to say doctrine of election should be applied in every single case including every trust and in this case i trust the moment it would be fair a doctrine based on equity needs to be applied fairly and justly and facts and circumstances of the situation need to be taken into consideration just like the this court advise on applying the doctrine of election to an amendment and there or any acceptance of the property would foreclose any opportunity to to thank contest any part of  now they did rely on a couple of out of state cases including the big linger and the holes cases which are michigan cases which this court does not need  property in the bag linger i believe it was ten thousand in the holes by was there was four hundred thousand dollars upon that receipt what the petition was trying to do though was to void out the entire distributions and then what they're doing is they're trying to overturn the entire document itself and potentially receive a different different distribution we're not doing it here the only thing we're doing is petitioning to to pay to remove an amendment that was prepared for my client's father was suffering allegedly was suffering from dementia we had doctor's notes that stated that his father was suffering from amendment does not affect the distribution whether he accepted or not then the second was that there should be an exception based upon the acceptance of the of the property having been made with full knowledge of the relevant facts and circumstances so does it make any difference whether boyer knew of the existence of the sixth amendment when he accepted the property with regard to your first  i think it's important the exception i believe you are you are asking about is is whether my client had to make a knowing acceptance of the property and know that that property was in fact owned by the sixth owned by his father's trust what are the relevant facts and circumstances the lawyer would have had to have known is it just who owned the property or is this have to do with the grafting of the sixth in that specific case the court concluded that there is an exception that is a political here bad is that the son who lived in the home to not making a knowing acceptance and he would not have known that that the fact that he was living in the home was the fact that he was living in the home was a benefit to him without without paying the rent in this example where the court said that he did not make a knowing acceptance he did not know that the property that his staying in the home was a benefit so if the facts in our case are similar in the fact that robert  should not have known that these assets were owned by the trust in fact usually personal property is owned by a will it's not usually not assigned to the trust so our client would had to understand they out there wasn't that his father executed an assignment of personal property back in two thousand and three and keep in mind our client was not a a who is not in step or an acting trustee he was removed from the sixth member so he would have had to know if there was a sign on the personal property then then he would have to make it pay a knowing and understanding that they had the property that he was receiving was part of the trust and that and then the other point is this this  of election has never been applied before to an amendment to a trust so even if he knew this the law is there is no law that says that that the doctor of all the election would be applied to  never made a knowing acceptance and i think that's that's that's a important factor in in this case and in addition we have to understand that that w robert was doing was he was not accepting something in taking an inconsistent position as i mentioned the court recently decided in the reliable case that you've got to look at it out the totality of the facts and circumstances is not reliable case or restrictive covenant it is the facts are different it's not to the british different issue but the concept is similar in that this court would not apply a a  case and others it's resulted in the equitable situation if you look at the totality of the circumstances you would you would understand he would understand that he should doubt have been applied in this particular case but yes that this court also for the happily established equitable doctrine of election two trusts the doctrine of election is a judicially created doctrine of equitable stoppel and applies to trust such as the case of bar as it has been previously applied to wills as the michigan supreme court said in one thousand sixty three in the whole speil vs detroit bacon trust company one three seventy one michigan for thirty two a beneficiary cannot blow hot and cold at the same time interestingly enough they relied on the lord kenyon the english jurist and then case the michigan supreme much like the case of barr has become the preferred choice of a state planning primary benefit of a revokable living trust is post death probate avoidance the legal issue before this evolutionary expansion of this principle to provide for the orderly expeditious administration of trusts the case of bar is a classic textbook case to enunciate this important public policy decision i respectfully suggest that the proposed case is straightforward and clear if you accept the benefits of a trust you cannot there after challenge the trust was this if it's a trust that can be changed or altered during the lifetime does that make any difference as to whether or not this doctrine should be applied no matter what happens during the lifetime of the both the grant or the subtle or in the beneficiaries down to the to the trial court and this decision councils argument has evolved the answer is in the case at buyer certainly mr boyer knew what was going on counsel gave  funeral scuse me indicating that he was the trustee and indicating that there was a sixth amendment counsel was engaged to advise mr boyer of these facts did so by correspondence the children got together mr boyd or took property and notably mr boyer is the only one who currently is refusing distributions from this trust everybody else in title the distributions has received those  so yes i would i would agree that someone should know what their actions are based upon but knowledge is important but there's no doubt in my mind mr boyer was aware he was advised twice by correspondence and he was advised at least once in a face to face conversation with mr rudd dixon is that part of the record i'm not aware that it is and i apologize for that but the two letters i'm i'm sure  mansion it's your position that there's no room for severability of amendments with in this doctrine of election and so the question is going to be why does and i believe takes the position especially when there is nothing inconsistent or incompatible receiving a distribution of a trust love the same time content contesting him a service trustee ok first of all let me suggest again in the appellate court specifically in its decision and paragraph fifty one fifty two in addressing in paragraph fifty three notes that mr the sixth amendment in this case is a critical component of an integrated document it needs to be read as an integrated document this trustee is granted substantial discretion and in the exercise of his discretion i would refer respectfully suggest that severability is inappropriate filing a petition to remove and i think that as as we go back to the issue of knowledge you know mr boyer asserts that there was one to inform some lack of capacity there was never a discovery in this case so you know we obviously would would adopt the opposite view but mr boyer knew he had a cause of action as far back as february in march when he purportedly got letters of twenty ten yes in the case of buyer mr boyer has twice taken personal property from the trust in essence he received a tangible benefit from the trust thereafter he filed a lawsuit to overturn the trust and two months thereafter  he executed a receipt prepared by opposing counsel which knowledge is on the receipt in page twenty of the record receipt  distribution of my interest from the trust it's quote unquote we assert that the expansion of the doctrine of election in essence prohibiting a beneficiary from taking a benefit and thereafter challenging the trust will aid the trial courts in the state of illinois in the following manner adoption of the stockton were eliminate the floodgate of litigation but its right going to occur with the proliferation of a vocal living trusts and estate planning this is a critical provision and it's not a stand alone document issued before the court it is the beneficiaries in consistent conduct taking taking taking their after challenging hypothetically we could easily construct a hypothetical in which a beneficiary beneficiary a receives partial distributions from the trust beneficiary he has not received any distributions beneficiary eight after receiving distributions decides to challenge the trust to prohibit beneficiary b from receiving under the trust again they could assert undue influence of beneficiary b or something of that nature that is in consistent behavior and that's a clear hypothetical that would apply relative to the expansion of this doctrine of election to trusts in the case and by the up the line is received a coin collection samurai sword presumably a world war two and to equate because he also receded for his father's army uniform for sure stereo to name a few items today apple argues that the personal property is of nominal value and should be conclusive according to the op on to this core the option of the doctrine of election and its extension to trust would be very clear if you accept the benefits of a trust  outlined is done you cannot thereafter challenge the trust the trial courts of this state should not be required to determine if the personal property was of sentimental value nominal value or great monetary value adoption of the doctrine of election to trust will prevent beneficiaries from taking inconsistent positions during the course of the administration of the trust and it will limit eight unnecessary litigation and expense to trust the states just as it has done in the application of the doctrine to will the state king case a fifth district make hundred ninety three illinois case two forty five  distribution the challenging who is the trustee what's inconsistent about that i would respectfully suggest that if you receive a benefit you should be barred from challenging it a provision of the trust and appointment the trustee selection and the powers invested in the trustee both under the document and the trust and trustees act is a very substantive back substitute of amendment and it's inconsistent to say i get a benefit and thereafter i turn around a challenge so we should look at the purpose for which the doctrine of election came into being which as i understood it was not to allow an individual to take a take  benefit under the agreement and then challenge those very provisions to make sure somebody else doesn't get a no i think that you certainly need to view the totality of the circumstances but i believe that the sixth consistent in the cain case the beneficiaries who who contested the will argue that by accepting personal property they had not accepted a sufficient benefit and were not ratifying the will fifth district appellate court disagreed and held with the beneficiaries had confirmed and ratified the entirety of the will by accepting a benefit tangible personal property accorded both the doctrine of election and prevented an attack upon the will  want has argued and i think we've addressed the knowledge issue relative to apple i'm being adequately and completely advised of the circumstances of this case before he signed a receipt and notably there is a case that on point says the assessment of knowledge is to be determined at the time of filing the lawsuit so mr boyer files a lawsuit in scuse me september of twenty ten after receiving property twice after being advised by counsel from mr boyer then counsel for mr boyer a multiple times twice of the terms of the document and after purportedly gaining knowledge but he had the basis for his he asserts undue influence case so if knowledge is assessed under the jaffee case one forty three illinois hello third the first district case a nine hundred eighty six case at the time of filing the lawsuit certainly mr boyer knew and had ample information regarding the knowledge of the circumstances in this case r refuses to refer to either seek or receive any further distributions in the nine hundred ninety seven the michigan appeals court relying in part on our illinois courts in the state of appellate two seventy three in one thousand nine hundred ninety seven case factually the plaintiffs who had alleged lack of capacity alleged on do influence had accepted ten thousand dollars under the trust and dollar under the case in conclusion i would say that the case of buyer provides this honorable court with an opportunity to logically extend the doctrine of election to trusts i've highlighted the reasons that the expansion of the sto necessary i believe it will aid the trial courts in that in the orderly and expeditious administration of trusts and i conclude with the comment that this court i would respectfully you your honor has been snowed in this court has not ruled on the doctrine of election since one thousand fifty five now is the chance for the supreme court to make a ruling on a doctrine or backward to be equity applied to trust one time and only that and that is the person that case and i described that case is completely different from this case at hand because in that case they were trying to overthrow the entire trust in the wrist knowledge this case our client did not helpful knowledge of the facts and circumstances and in fact how how could the opposing counsel mention that there was a conversation that they are not of record that that he amendment or that or that there was a alleged trustee so there in the will contacts let's keep in mind in the world context we're dealing with more court supervision oftentimes a person can have supervised administration where they would get inventory in sixty days you were dealing with a private trust document that if you did apply the doctrine of action in a bright line fashion you're going to get inexorable results such as the one in this case now we're not blowing hot and cold there's no inconsistency here we're not affecting the orderly administration trust him anyway what's hot and cold about the fact that our client never a knowing acceptance of personal property all he's trying to do is contest a separable sixth amendment which has absolutely nothing to do with distributions and that doctrine in itself ok clients trying to do is remove a trustee there's nothing inconsistent about their he had knowledge about the trustee before the distribution rights he knew who this person was he had had contact with fully developed i'm hearing for the first time that potentially there was a conversation between god and that he could potentially knew that this was a successor trustee but keep in mind so the only question is what is in the complaint and you know was there any affirmative matter attached it to six one nine motion i don't i don't i think the two six one one motion i think they're the facts were not developed therefore this court doesn't have the ability to to look at those type of situations or facts and i believe that this court does he have the right to in order to preserve justice to look at the facts and circumstances of the case at hand and for example with that with the separate building issue it it was raised in fact there was discussion between level i'm not sure of the exact letters he was referring to that there were did that there were two letters stating that there was a new that there was a alleged trustee but that in order for us to yet and that the client is not picking and choosing what clauses he likes and what clauses he doesn't like from the trust our position is that we're dealing with a separate sixth whatsoever we're contesting one separable document which has absolutely nothing to do with trust distributions and i think it's important to note that most of the cases that are cited deal with with trying to overthrow an inconsistent with accepting benefits under the rest of the guard it with your argument be the same no i would i would still i would look to the totality of the facts and circumstances i would take each case correct so for example if if the facts and circumstances were there was an amendment one call and my client had received substantial amount of assets or significant amount of the assets from that amendment and then or vice versa so mebody that was take a hypothetical if somebody else was receiving substantial amounts from this amendment and my client was trying to throw out that amendment so he could receive more they're there you got thing consistent  them and got thrown out he would then receive more you look to the full the entirety not you can't pick and choose and you should especially a doctrine based on i could be in what is fair how can you two to apply it bright line rule would result in in equitable situations and that's not the purpose of this doctrine it's to what if what if and taking personal property he had a million dollar coin collect that's would still be able to challenge six in our situation my and my answer would be yes and the reason why is this regard less of whether the sixth amendment stays in or gets thrown out he would still get the dollar collection he's not he's not doing anything that's inconsistent the only thing he's trying to do is remove and he successor alleged successor trustee who came into place at a time when he rodgers his father was suffering from dementia