there was no evidence for any finding of any bad faith in the creation of the trust that should have been the end of the discussion however in the trial court improperly focused on the conduct of the trustee rather than on the terms of the trust and the section one thousand four hundred and three requirements that is inappropriate because there is no law supporting review of what the trustee actually did as opposed to what the trustee was authorized by the trust to do in unlike here the debtor was the sole beneficiary unlike here and there was no ascertainable standard unlike here the standard in chicago police sergeant was best interest of the debtor now i know that b discusses the best interest section in this trust but that does not apply to mark's assets or distributions that relates to the separate trust established for the descendants of mark not to market themselves see for example article fifty one be regarding the eight hundred and twenty five distributions for the descendants page appendix forty five and article nine separate trusts discussion at page a forty nine misconduct an action by the beneficiary against the trustee not void in the trust questions a couple questions mr virtually the position that when the trust was created it did not allow mark independent trustee and beneficiary and take the entire principle at his so discretion you didn't have the discretion to do that at any time correct based on the standard is set for the trust and article two and i can pull it up really the trust language is that he has an ascertainable standard e as the standard under which you can only withdraw to support his lifestyle  exists in the last five years she's mean you're not disputing are you the trial court's findings that essentially mark was able to pay personal expenses bills household was able to use the trust for whatever purposes he desired with guess let me let me ask it from a different perspective what was the limit on his discretion the limit was his standard of living over the previous five years as support for the trust of the living ok you know if a majority of the trustees say this you know you can do whatever i can even anticipate a circumstance where they would be hard to enforce were somebody at least required in a circumstance where the route to trustees that you receive you had retired to confer with or run something by the other trustee but the way i read this trust and tell me if i'm wrong is that elaine and mark are entirely independent in their ability to do whatever it is they think is appropriate under the terms of the trust and one is not a check on the other under the terms of the trust let me ask you is that a correct reading in terms of the duties of the trustees under the terms i don't think it's correct if  to say that they can do whatever they want they can do do what is consistent with the terms of the trust what each one is the independent arbiter of that is that fair well there is no other party o the cool then i'm checking on them to determine whether or not they're complying with the terms of trust so if a lame thinks that i recognize he's no longer active but we're going back to the time when the trust was practiced look at the the trust if a line thinks that mark is exceeding his standard willing over the last five years you know in terms of spending what he's supposed to do is a go into the chance and say i believe trustee marc is spending too much money and i'm bringing this action on behalf of the beneficiary mark how's that suit going to look from a practical standpoint and i know that the and it was due to the lawyer for then is going to address but what if this court were to determine as the the children of mark or the descendants of mark were vested beneficiaries at that point who would living be printing that suit on behalf of which he still has to bring it on behalf of the trust itself under the terms of the trust is that fair if he's the only beneficiary yes but she had the power to do that he had the power to shut him down and disagree with him and if that was if you disagreed with him on a spending issue the only power of course being to go to court not anything under the terms themselves having to agree or anything like that well i guess i agree that it but it in any instance is not testifying to the interpretation of the terms he is testifying to the context of the creation of the trust in order to support our argument that the trust was created in good faith and to rebut actually did did there was no evidence to rebut but to potential evidence that some of the trust was created that state that is his testimony with respect to tax consequences and his testimony respect to the ascertainable standard all were directed toward you'd tell me otherwise would be unfair to define good faith and comply with you know the common law and statutory was related to the creation of trust i would define it as as having good reasons to create a trust and create a trust in appropriate format all right thank you ok i have just a couple of questions sir we do agree that the rationale that prevents predators from reaching the truss assets is that the beneficiar cannot reach them but it would strain logic and law to continue doing for suspension of cause after the benefits year and asked us to trust in essence are you familiar with in principle similar with the principle i believe you're referring to merger well here isn't in rate are you familiar with in remarriage i'm sure i have read the case yes well how is how is in remarriage different from the banks in this case with respect to requiring the beneficiary to turn over assets from the trust how's that case any different well i can't call to mind it's the specifics of the shark case i iraq i said factually it's a little different because we're talking about child support is as opposed to being in a judgment creditor but the reality is that in this case he has in sharp the the beneficiary who's the debtor was living off of the assets in the trust and he had access to the trust and here you have mark is both the and was both the beneficiary and the trustee and he used that those assets to purchase and to sustain his standard of living including buying a twenty one dollars to twenty seven thousand dollars rolex watch and to do with the way his lifestyle was in the last five  ok and the you don't you don't contest the issue that he was poor a substantial proof time both the trustee and beneficiary correct with access to the as a mother of two minor children mark my clients are involved in this appeal d because they were denied the opportunity to participate in the underlying proceedings in which the trial court set aside a trust which was established by their grandfather for not only the benefit of their father but also for their benefit as you are aware from our brief filed in this regard my clients maintain they were necessary parties to the undersigned underlying motion to set aside the trust and the trial court's decision to set aside the trust is null and void due to their absence from the proceedings the trial court denied my clients the opportunity to intervene primarily because it found them to be contingent beneficiaries of their grandfather's trust in fact however they were direct trust under the only trust and trustees act it states that a primary beneficiary means a beneficiary of the trust who as of the date of the determination is either currently eligible to receive income or principal from the trust or a presumptive remainder beneficiary i would argue that my client under either of those standards they were eligible to receive income or principal from the trust and they were presumptive remainder beneficiary under the illinois trust  act they were in fact primary beneficiaries more importantly my client's status as necessary parties arises from the language of the trust itself in the very st recital and march descendants at the time fred stablished to trust in twenty thousand and thirty two of my clients a leash and iowa had already been born clearly their grandfather intended them to be beneficiaries of the tribes in addition to the language i quoted from the recital an article for the trust provides and i again quote the discussion the discretionary trust shall be held as a separate trust of which the beneficiary shall be mark and all descendants of mark shall be living from time to time during the period of such trust again the specific language of the trust made my clients direct rather than contingent in addition to this very specific language section two of article for granted my client's father a limited power of appointment to distribute any portion of the trust the state to all or any  one of his descendants which included my clients this language is obviously significant because under the decision in ogle's b versus springfield in the ring bank three hundred and eighty five illinois nd for fourteen individuals subject to the potential exercise of a limited power of appointment are deemed to be necessary parties and as i indicated in our briefs the old rules the decision was cited favorably by the court in st national bank of  code of civil procedure even under section two to four away my client should have been granted the right to intervene and particular section four away provides that a party seeking need to intervene and i quote shall be permitted as of right to intervene in an action when the representation of the applicant's interests by existing parties is or may be inadequate and the applicant will or may be bound by an order judgment there can be no dispute my clients would be bound by any order entered in connection with the motion to set aside the trust for further needless to say under the facts of this case the representation of my client's interests by the existing parties could not be up at least like to point out the fact that in my opinion the nd district court decision in community bank of elmhurst versus klein is governed and that the remedy that the plaintiffs should have been allowed to receive was essentially a charging order a lien against any distributions on you lifetime is it true that the only means by which your clients can receive a distribution under the discretionary trust well mark is allies to live is if one of the trustees determines at their sole discretion  your clients had unusual expenses is that true yes but that applies to mark as beneficiary even even monies granted to marc are subject to the trustees discretion but on the staff your clients cannot while mark is alive see anything unless mark or his mother were to agree with that correct and again i would i would say yes to that but if in fact there was a situation that came up that under immediately the other way that they your client certainly could receive a distribution is if they were alive at the time that mark is that correct here's the problem i'm having with that both of those items both of those means by which they would obtain some distributions under the slats or case which i'm sure you read which cites the city of mccomb case case held that that type of interest is contingent and does that provide standing to intervene so how do you answer that holding in the slats or case again i think this particular case looked at him properly and in fact you know some of the language in that was different than what we have here again i think you know focusing on us the simple transfer case ignores all the other case won't affect the nords the language of the trust itself which i think the trial court is what is what is bound by the language of the trust itself i think it's all  to put in a discretionary trust for one of the children that corpus is that's a radical correct if they create a discretionary trust that power exists i'm not sure i'm not sure i quite understand it i think that's accurate but the trust itself was considered a discretionary trust i know the trust is considered a discretionary trust but it also allows for the creation of additional discretionary trust grandchildren at the discretion of either of the trustees not correct that's correct yes and if that were to occur the trust would be irrevocable as it relates to whatever is put in that some discretionary trust the lack of a better word with the land that has that warmer there was nothing in the record to suggest that that had never happened that there was a discretionary trust created under the main discretionary trust for the grandchildren as want to make sure i didn't read it but i'm not i'm not aware of any separate trust for any of the grandchildren but the document itself a lot of for that at the trust situations correct it doesn't apply to mark that's correct that's the way i read the trust all right thank you thank you itself of the trust which which creates no limits on saturday even just by the language of the trust and secondly it's based on the the world of the case well and the appellant's entire argument is  case they want a trial court and now the public court to ignore that total control by i o's zero as the beneficiary and the trustee to control the at that so that trust with impunity there's no legal event that however the case law in illinois is also clear that want to trust beneficiary has complete and unrestricted control of the assets and the trust that trust is extinguished finds from the evidence that i also is in complete unfettered control over those assets use that power is own benefit and that for those reasons that the sole beneficiary and trustee in illinois the law's clear those cannot trust cannot be used to shield assets from creditors when that beneficiary has unrestricted access to the trust ethnic every case is a double that exists in this case i believe that proposition appellant don't comment at all in the briefing on the record on the facts they don't challenge the facts i don't challenge that i also had better control of the trust assets to avoid the bare judgment they banned  paying for his house mortgage through it credit card payments it was a little bit under three million in five years five exotic tricks trips just in the st three to four months of two thousand and seventeen which was after the of this whole scheme that he had to do anything possible to avoid paying his friend what he owed him after the judgment he changed that he changed the rent payment to the discretionary trust which had been from what might lincoln thirty two thousand five hundred to the discretionary trust the only income trusts other than perhaps interest he changed that to the fred i also trust he did that by directing like to do that and ask any questions like he never did rubber stamped everything that was thirty two thousand five hundred dollars a month he diverted from the discretionary trust   a guarantee was signed and behalf of the trust mark signed as the beneficiary of the trust the beneficiary and then confirmed that in his testimony at the e based on the facts of the law i also noted that each each trust the trustee can independently do what mark did even if the lane was part of that there's no evidence of a five y the sole discretion in it with respect to i also support we have the children support sole discretion used twice and that's action and with respect to our unusual items we have limited powers of appointment so discretion discretion is the language the term may be based on an instrument in writing that didn't happen unusual circumstances didn't happen didn't happen and then death it's interesting in section we also need to look at article nine i think each separate truss's divide not really defined but a proper reading of this trust document provides that this discretionary trust is a trust that is being discussed in section nine section five uses the term desirable and best interest action that you use the terms discretion best interest comfort convenience happiness also provides that the that the trustee does not have to consider the benefit of the beneficiary of the remainder that he can terminate the trust or eliminate the contingent interests we serve in our brief is the correct position and that is that since this is a supplemental proceeding the motion to set aside was filed during the sub supplemental proceeding after the individual judgment in the appeal affirmation  that three o four before apply and it provides for a thirty day appeal period i don't think there's anything inconsistent where there's a final judgment and then case talked about the final judgment including judgments needed to be appealed within thirty days with respect to the merits of the motion to dismiss filed as an attachment to the petition to intervene have the same issues that all of them but all same there was clearly an adequate representation of interest the appellant cite the city of chicago versus john hancock with respect to the standards regarding adequacy of representation but they don't apply and and  when the court looks at those standards those are clearly a political there are two arguments in the reply that are not appropriate the only on trust code argument and the trust and trust the x arguments and the court properly found  that intervention was denied the interest were aligned there clearly contingent beneficiaries and there's nothing in here that they're in the truck in the entire truck that they are direct beneficiary for those reasons we would ask issue of whether this court lacks jurisdiction because the ozone petitioners allegedly did not file a notice of appeal from the trial court's final order denying final or denying leave to intervene  itself what's your client citation petitioner in a position to collect and yet that remark nor did it affect your client from doing so in the future why are you saying that that order of september th was the final order your honor we're basing it on the decision and then lent and a couple of the other cases that have been cited in this case i don't have them at my fingertips that apply that standard that inland states with respect to a final order  these would be three o four before and that language is if it terminates the litigation between the parties on the merits or supposes the right of the parties either and the entire controversy or separate part thereof using that standard provides the basis for this being a final order against the children because their rights to contest the set aside anguished and because of that we believe the the the interpretation is that three or four before does in fact apply what you've read national life real and you've read international bank chicago cases based on the facts of that case where a judgment debtor was with looking to get a collection of a creditor was looking to get a collection of judge where is here and there this was the issue was simply that the motion to set aside was being sought by the other parties and there was not about did right and this final this was a final judgment as to these descendants so it it puts it squarely within the language of the in lindh case as well as some of the others which i don't have an at my fingertips but i can so i can supplement that if you would like i think you must we'll just that's all i have to think you any kind of oversight or to use the language one hundred discretion and you ask us to affirm that decision my question is this because i haven't found it in a few found it i'd like to know situation where merger want to bind the terms of the trust and it could be set aside and reports you don't agree with that if that exist right yes yes my question is this is su t let's just assume for a moment that the terms of this trust not inherently problematic in that regard that's the case is there any case law that says look we're just going to look to how the beneficiary in the trustee is actually dealing with the corpus what they're actually doing and we look at what they're actually doing and it's exercising on petter discretion any reported case in illinois we're just based on that what's actually happening a trust a set aside independent of the terms of the trust i think i do not recall it being a case it is  squarely state that i think there is that thanks and that we believe that the the terms of the trust are problem for i just want to make sure that we're on the same page that if there's not a problem with the terms of the trust at least i have not identified an illinois case i've seen cases not a jurisdictions in bankruptcy cases but i've not identified an illinois case that sets aside a trust based soley upon what's happening on the ground if you will versus the terms of the trust you don't have one either i don't know if this is properly answering the question but all of the cases that provide where the beneficiary is i'm centered access to the to the assets of the trust support fullerton's ruling d and know whether they characterize that as a merger issue many of the other cases also talk about how the you cannot be the trustee in the beneficiary and and that supports judge fullerton's ruling as well but in terms of your specific question i can at least say that i'm aware of a case like that one another question so i trust this concept of you know how education or maintenance support that type of language that governs how trustees will distribute money i mean those are those are generally accepted right there's nothing wrong with the mains or maintenance or support of the beneficiary you would agree with that  yes i think those are our standard clauses and i think i think where you know where what we have here is that there's an attempt by the appellants to characterize this trust as getting ascertainable standard when it doesn't in this document i mean someone who i spoke to find out what his total spending was over a period of five years the average in say that that is the definition of support in this particular circumstance would that i mean support always somewhat amorphous but why is attaching it to your average spending for the last five years turning into something under the terms of the trust that makes that without any kind of an ascertainable standard i think it's the sole discretion aspect of this and it's also the language and sections  dollars and five dollars which we believe what we believe the was intended to this discretionary trust is one of the discretionary trust with capital letters that article five talks about of those all of those all of that language and section nine about comfort convenience happiness that's interested cetera in the sole discretion are those are are the buzzwords of of decisions which state some of them are in this case which state that that is not control that's that's that's not an sat that doesn't avoid the stuttered aspect of it i wouldn't agree with you except i read distrust that language you know for the happiness except for that applies to discretionary trusts created by the trustees on behalf of the children i don't think that applies more so that's that's the way we read that and we also believe that the you know that aside from the we don't believe that we believe that the the actual conduct we applied it doesn't have any relevance here because it doesn't apply because of it's affected a chain or a twelve thousand and twenty two proceedings that are in effect prior to that time but it also recognized expressly that the common law remains part following up on mr justice is coming about article fifty nine and following up again and on the justices common article five article might relate to separate trusts for the children there they are discretionary trust no doubt but they also use the language separate trusts and that that is the reason for the distinction in the standard for the separate trusts i also want to point out that the first recitals of the trust itself says t no longer able to trust the both the line and mark were replaced with mr fly at that time and let me see if there's anything else i wanted to comment on findings to the contrary what we argued i would agree with you we argue that this should be the noble because there is no evidence no evidence on bare side of the equation with respect to whether or not