## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Estat

e of Lucc io , 2012 IL App (1st) 121153

Appellate Court Caption In re ESTATE OF BEN J AMI N LUCCI O, Dec ease d (Rocco Lucio, J ohn Lucio, Patricia Chiarello, Danielle Morey
, Niccole Morey
, Amanda Morey
, Be nefic iaries Under a Prior Trust, and Tina Norton, as M o t h er and L eg al Guar dian of Ka ylee Nor ton, Be nefic iary

Under a Prior Trust, Plaintiffs-Appellee s, v. Khristian Rao, Individually and as Ben ef iciary Un der the Six th Amendment to the Be njamin Luccio a/k/a Be rnard i n o Luccio, Dec laration of Trust Dated J anuar y 12, 2001, De fe n d antAppellant (St. J ude’s Children’s Resear ch Hos pital, Be nefic iary Under the Six th Amendment to the Be njamin L uccio, a/k/a Be rnar dino Luccio, Dec laration of Trust Dated J anuar y 12, 2001, and ATG Trust Company
, as Trustee of the Be njamin Luccio, a/k/a Be rnar dino Luccio, Dec laration of Trust Dated J anuar

y 12, 2001, Def

endants))

.

District & N o. First District, Second D ivision Docke t No. 1-12-1153

Filed Dec ember 18, 2012

Held (Note : This syl lab us

c ons ti tut es no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In answe r to a ce rtified question, the appellate court ruled that the six

month limit ations period in section 8-1(f ) of the Probate Act for bring ing

a co n t est to the validity of a trust that rec eives a leg acy from a wi l l admitted to probate does not apply to a tort action for intent i o n al interfe renc e with an inheritanc e expect an cy , but if a trust contest is “ava ilable” to a litigant, an d h e i s “aw are ” of his leg acy , but agree s to take no a ction in exchang e for a settl ement, then he cannot late r bringa tort action.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, Nos. 09-P-7737, 10-CH46854 cons.; the Hon. James G. Riley , J udg e, pre siding.J udg ment Certified que stion answere d; cause rema nded.

Counsel on Appea l Peter J

. Schmiedel, Ro b er t W. Kauf man, and Amanda M. By rne, all of Fische l & Ka

hn, L td., of Chicag o, for a ppellant.

Andre w T. Ha

y s, of Hay s Firm L L C, of Chicag o, for a ppellees.

Panel J USTI CE CONNORS delivere d the judgme nt of the court, with opinion. Presiding J ustice Har

ris and J ustice Quinn concur red in the judgme nt and opinion.

OP INION

¶ 1 Plaintiffs fi l ed a complaint in the chanc ery division ag ainst defe ndant Khristian Rao,
among others, for intentional interfe renc e with an inheritanc e expectancy and brea ch of fiduciar y duty in a matter involving a testamentar y trust. The case was then transfe rre d to the probate division and consolidated with a pending action involving the estate of the dece dent, Be njamin Luccio. Rao moved to dismiss the claims ag ainst her as time-barr ed under section 8-1(f ) of the Probate Act of 1975 (Ac t) (755 I L CS 5/ 8-1(f ) (West 2008)). The circ uit court denied the motion to dismi s s

. After also denying Rao’s motion to rec onsider, the court

cer tified the following question for interlocutory appea l under I llinois Supreme Court Rule 308 (ef f. F eb. 26, 2010):
“Doe s the six [-] month limitations period of 755 I L CS 5/8-1(f) for bring ing a contest to the validity of a trust that rec eives a leg acy from a will admitted to probate apply to a tort action, i n cl u d ing an action for [i ]nt entional [i ]nt erf ere nce with an [i ]nheritance [e] x pecta ncy wher e, unlike a will that has been admitted to probate
, the trust instrument and amendments there to are not publicly filed or otherwise made av ai l ab l e t o tort claim an t s wh o were to have rec eived a benef it from a prior version of the trust or an amendment ther eto? ”
On May 25, 2012, a differ ent division of this court allowed the interlocutory appea l. For the

rea sons that follow, we a

nswer the cer

tified question in the neg ative, with qualification.

¶ 2 BA CKGROUND ¶ 3 The following fac ts wer e taken from plaintiffs’ first amende d complaint. On J anuar y 12, 2001, the dece dent executed the “B enjamin Luccio, a/k/a Be rnar dino L uccio, Dec laration of Trust Dated J anuar

y 12, 2001” (Tru s t ). The second amendment to the dece dent’s Trust, executed in 2007, g ave the balanc e of a bank acc ount to his nephew
, specific monetary g ifts to his niece a

nd g randc hildren, and the balanc e of the residuar y trust estate to his brother.

-2-¶ 4 In September of 2008, the dec edent hire d Rao to provide in-home medical care for his

ailing wife, Max ine. R ao allege dly acc ompanied the de cede nt to his bank to retrie ve som e financ ial documents from a safe ty deposit box befor e visiti ng an attorney “in order to amend [t he d]ecede nt’s estate plan.” Rao then transporte d Maxi ne to her home in Arka nsas ag ainst the advice of Maxine’s doctors. ¶ 5 Over the next few months, the dece dent beg an to exhibi t signs of dementia. Although the dece dent had been paying Rao for M ax ine’s medical car e, he also alleg edly transfe rre d $130,000 to Rao in Dec ember of 2008. In J anuar y of 2009, the dece dent reta ined an attorney

rec ommended by Rao to amend his Trust. The third amendment g ave the dece dent’s house
to his daughter, Tina Norton, and the balanc e of his residuar y trust estate to Rao. Two wee ks 1 later, the dece dent executed a fourth amendment to his Trust, adding a monetary bequest to his nephew. ¶ 6 In M ar ch o f 2 0 0 9
, the dece dent was diagnosed with advanc ed dementia and re quired around- the-c lock medical car e. Around the same time, Maxi ne died. Rao then moved from Arka nsas into the dece dent’s home to provide him with in-home medical ca re. ¶ 7 A couple of wee ks later, the dece dent executed a fifth amendment to his Trust. In it, he
g ave a monetary g ift to a children’ s rese arc h hospital, he g ave his house to his nephew
, and the balanc e of the residuar y trust estate was to be divided equally betwee n Rao and three of the dece dent’s relatives. In J une of 2009, the decede n t executed a six th amendment to his Trust, which g ave a monetary g ift to the hospital and the balanc e of the residuar y trust estate to Rao. ¶ 8 Shortly there afte r, Rao moved the dece dent to her home in Arka nsas without telling his family . The de cede nt’s family members located him a couple of m onths later in Ar kansas. Rao alleg edly “cut off communications betwee n the [d] ece dent and his rela tives, telling the [d] ece dent that they

no longe r ca

red for hi m.” W hile in Rao’s care, the dece dent broke his hip and duri n g t h e s u rge ry to repa ir it, he suffe red a hear t attack. Norton tried to make

arr ang ements to visit the d ec ed ent, but was told that he had left the hospital. Rao did not return any of Norton’s phone calls. Finally
, Rao informed Norton by email that the dece dent died on Novembe r 5, 2009. ¶ 9 Rao later told Norton that the dece dent’s Trus t wa s b eing administered by ATG Tr ust Company
, which was repres en t ed by attorney J ames Kash. Norton contac ted Kash to g et copies of the will and trust documents, but he alleg edly refu s ed t o provide her with those documents. ¶ 10 On Oc t o b er 28, 2010, plaintiffs filed a lawsuit in the chanc ery division ag ainst Ra o , ATG, a nd the childre n’s hos pital. Counts I and I I sought to set aside the Trust beca use the dece dent lacke d capa city to execute the third, fourth, fifth, and six th amendments to the Trust and beca use the amendments wer e procur ed throug h undue influence

. Counts I I I and IV wer e

T ina Nort on is not a pla int if f in thi s cas e, but app ear s in the cap ti on as the m oth er and le gal 1 guardi an of pla int if

f K aylee Nort on. As the sol e heir of the dec ede nt’ s est at e, T ina Nort on fi le d an

uns ucc ess ful pet it ion to set asi de the admissi on of the wil l to pro bat e. However, none of the pro bat e ord er s a re in volved in th is in te rl ocu tor y appea l.

-3-direc ted at R ao, alleg ing that she intentionally interfe red with plaintiffs’ inheritanc e

expectancy whe n she induced the dece dent to amend the Trust and that she brea ched her fiduciar y duty to the dece dent. Count V soug ht to enjoin ATG from disbursing any funds or assets under

the terms of the Trust. ¶ 11 The case was transfe rre d to the probate division and was consolidated with the pending probate matter. The defe ndants eac h moved t o dismiss the complaint as time barr ed under section 8-1(f

) of the Ac t. The cour

t dismi ssed counts I

and I Iwith prejudice , but permitted plaintiffs to amend the r emainingcounts. ¶ 12 Plaintiffs then submitt ed their first amende d complaint, whi ch i s at i s sue in this case. Count I ag ain al le g e s th a

t Ra o in te ntiona lly interfe red with plaintiffs’ inheritanc e expectancy

. Plaintiffs asser

ted that they wer e benef

iciarie s under prior versions of the Trust and that Rao unduly influence d the dece dent to “tra nsfer larg e sums of money and/or stocks to her during [t he d]ecede nt’s lifetime. These t ra nsfer s included funds from chec king acc ounts, saving s

acc ounts, broker ag e acc oun t s an d cer tificates of deposit.” They alleg ed that but for Rao’s interfe renc e, they would have inherited from an estate worth more than $1.5 milli on, which

was its value befor e Rao induced the dece dent to transfe r his assets to her. Count I I asser ted

a claim for brea ch of fiduciar y duty ag ainst Rao, alleg ing that she used her relationship with the dece dent to forc e him to execute the third, fo u rt h, fifth, and six th amendments to the Trust and appropr iate his assets for her own benef it. Count I I I of the amende d complaint was direc ted at ATG , seekingto enjoin it from disbursing a ny assets under

the Trust. ¶ 13 Rao ag ain filed a motion to dismiss the complaint, arguing that the t o rt cl ai m s we re barr ed by section 8-1. After oral argument on the motion, the court issued a written opinion. I t rec ounted that the Trust is the sole leg atee of the will that was admitted to probate

. I t noted that plaintiffs’ complaint does not contest the validity of the dece dent’s will or the Trust; rathe r, it seeks a persona l judgme nt ag ainst Rao for her tor t i o u s i n t er fer ence with the plaintiffs’ inheritanc e expectancy

. I t further noted that althoug h the will had been filed with the court, distributed to all heirs and leg atee s, and become a public document pursuant to the Act, the Trust had not beca use I llinois law d o es not require the same disclosure of trust documents. Acc ording ly
, the court stated, there is “a hug e g ap in how we trea t a will contest

versus trust contests yet both are subject to the same six [-] month statute of limit ation.” The
court also noted that plaintiffs reque sted copies of the will and Trust from Kash, the estate’ s attorney , an d ATG, the trustee, but the documents wer e “not forthcoming in a timely

manner .” ¶ 14 The court th en d enied Rao’s motion to dismiss and allowed the tort claims to proce ed based on the foll owing finding s. Plainti ffs we re not e ntitled to a copy of the Tr ust beca use they wer e not named benef iciarie s. Under these circ umstan ce s , the court conclude d that plaintiffs would have to have filed a lawsuit ag ainst the trustee to obtain a copy of the Trust in or der to discove r whe ther they could have brought suit to challeng e the Trust, all within the six -month time fra

me for filing a trust contest under section 8-1(f ) of the Act. The court found that proce ss to be “unduly burdensome” and contra ry to the public policy of ensuring “an order ly settlement of estates.” I t also conclude d that a will contest would not have benef itted pla intiffs beca

use the dece dent’s will was a “ pour over ” will that transfe rre d his residual estate into the Trust, as did the prior version of his will; thus, the dece dent’s residual

-4-estate would have been g overne d by the terms of the Trust reg ardle ss of which version of the

will was admitted to probate

. Additionally
, plaintiffs soug ht to rec over the value of alleg edly fra udulent inter vivos transfe rs the decedent made t o Rao, which relief cannot be obtained in a will contest p roceeding

. Thus, the court conclude d that plaintiffs wer e not require d to file a will contest within six months of the will being admitted to probate pursuant to section 8-1 and c ould proce ed with their tort cla im. ¶ 15 Rao filed a motion to rec onsider, citing our rec ent opinion in Bjork v. O’Me ara , 2012 I L App (1st) 1116 1 7, in support. The court denied the motion to rec onsider but cer tified the 2 question that is the subject of this appea l. This court g rante d Rao’s application for interlocutory

appea l.

¶ 16 ANALYSI S ¶ 17 We b egi n wi t h a re ci t at i o n o f t h e scope of revie w we apply to Rule 308 appea ls. Gene rally
, courts of appea l have jurisdiction to revie w onl y final j udg ments enter ed in the trial court, absent a statutory exception or rule of the supreme court. W alker v. Carnival Cruise Lines, Inc.
, 383 I ll. App. 3d 129, 133 (2008). Supreme Court Rule 308 provides one such exception. Rule 308 allows for permissive appea l of an interlocutory order cer tified by the t ri al co u rt as involving a question of law as to which there is substantial g round for differ ence of opinion and whe re a n immediate appe al may materia lly advanc e the ultimate termination of the litigation. I ll. S. Ct. R. 308 (ef f. Fe b. 26, 2010); Brookbank v. Olson
, 389 I ll. App

. 3 d 6 8 3
, 6 8 5 (2009). Howeve r, the rule was not intended to be a mecha nism for expedited revie w of an order that mere ly applies the law to the fac ts of a p ar ticular case

. W alker
, 383 I ll. App. 3d at 133; Morrissey v. City of Chicago
, 334 I ll. App. 3d 251, 258 (2002). Nor does it permit us to revie w the propriety of the order enter ed by the lower court. W alker
, 383 I ll. App. 3 d at 133. Rather, we are limit ed to answe ring the specific question

cer tified by the trial court to which we apply a de novo standard of revie w. Moore v. Chicago Park District , 2012 I L112788, ¶ 9. ¶ 18 Initially
, we note that the cer tified question prese nts a case of first impression. Although the Act as a wh o l e ref

lects t he long-standing principles of probate law and the process for the order ly settlement of estates ( Robinson v. First State Bank of Monticello
, 97 I ll. 2d 174, 186 (19 83)), subsection (f) of the Act, which g overns a challeng e to the validity of a

revoc able inter vivos trust that rec eives a leg acy from a wi l l
, h as yet to be construed by I llinois courts. Until 1995, s u ch challenge s to testamentar y trusts proce eded under section 13-223 of the Code of Civil Procedur e (Code). 735 I L CS 5/13-223 (West 2008). Howeve r, 3

as part of a larg er leg islative enac tment, the languag e of section 13-223 was added to the Act verbatim and, along with some additional statutory ref eren ce s , beca

me s ubsection (f). S ee

On Ma y 30, 2012
, the I ll ino is Supr eme Co u r t a l l o w ed the pet it ion for le ave to app eal in 2 Bjo rk

. Bjo rk v. O’M

ear a , 2012 I L App (1s t) 1116 17, appe al all owed
, N o

. 1 1 4 0 4 4 (I ll

. Ma y 30, 2012 ). T he c ase was ar gued be for e t he s upr eme cour t o n Novem ber20, 2012

.

We re nde r n o op ini on o n t he c ont inu ing app li cab il it y of se ct ion 13- 223. 3

-5-Pub. Act 89-364 (e ff. Aug . 18, 1995) (a dding 755 I L CS 5/ 8-1(f )). ¶ 19 The languag e of subse ction (f) rea ds as follows:

“An action to set aside or contest the validity of a revoc able inter vivos trust a g ree ment

or decla ration of trust to which a leg acy is p ro v i d ed b y the settlor’s will which is admitted to probate shal l be commence d within and not afte r the time to contest the validity of a will as provided in subsection (a) of this Section [(755 I L CS 5/8-1(a) (West 2008))] and Section 13-223 of the Code of Civil Procedur e [(735 I L CS 5/13-223 (West 2008))].” 755 I L CS 5/ 8-1(f ) (West 2008). The ref ere nce to subsection (a) of the Act imposes a require ment that any such challeng e to the validity of the trust be filed within six months of the acc ompanying will’s admission to probate . 755 I L CS 5/ 8-1(a) (West 2008); In re Estate of Ellis , 236 I ll. 2d 45, 50 (2009). ¶ 20 The six -month limit ation period in subsection (a ) h as l o n g b ee n re co gn i z ed as a jurisdictional limit ation barring any claims filed beyond that period. Ellis
, 236 I ll. 2d at 50. Howev er, we have previously char acte rized the limit ation period of a testamentar y trust contest under section 13-223 as administrative and not jurisdictional. Anderson v. Marquette National Bank
, 164 I ll. App. 3d 626, 634-35 (1987) (noting t h at section 13-223 mere ly
presc ribes the commence ment of t he li mitations period and i t s duration). I n Anderson
, we conclude d that beca

use section 13-223 i s part of the C ode, it should be liberally construed
t o protec t ag ainst the procedura l pitfalls of common law pleading that often deny l i t i gan t s

an opportunity to have their disputes hear d on the merits. Anderson
, 164 I ll. App. 3d at 635. On the other hand, we said that the limit ation period in the Act is jurisdictional, and justifiably so, beca

use as a whole, it contains very specific notice provisions that require strict adher ence

. Anderson
, 164 I ll. App. 3d at 633-34. Thus, we held, section 13-223 “does
not car ry with it the jurisdictional aspec t of the *** Act.” Anderson
, 164 I ll. App. 3d at 635. Although we need not construe section 13-223 for purposes of this appea l, we note that the analy sis underlying our holding in Anderson must be revisited to ref lect the chang e that the leg islature made to include testamenta ry trust contests wit hin the s tatutory org anization of the Act. Neve rtheless, beca use subsection (f) is part o f t h e Ac t , it must be construed as a jurisdictional limi tation, as subsection (a) has longbeen c onstrued. ¶ 21 Turningto the question at issue, whether the six -month jurisdictional limi tation period in subsection (f) applies to a claim for intentional interfe renc e wi th an inheritanc e expectancy i n v o lving a trust that rec eives a leg acy from a will admitted to probate
, we beg in with the fa m i l i ar rules of statutory construction. Our primary objective in construing a statute is to

asce rtain and g ive eff

ect to the intent of the leg islature. Ellis
, 236 I ll. 2d at 50. All other rules of statutory construction are subordinate to this principle. Alvarez v. Pappas
, 229 I ll. 2d 217, 228 (2008). The best evidenc e of leg islative intent is the languag e of the statute itself, which
must be g iven its plain and ordinary meaning

. E l l is , 2 3 6 I ll. 2d at 50. Where the statutory languag e is clea

r and unambiguous, we may not depar t from i t s p l ain meaning by rea ding into it ex ceptions, limitations, or conditions notexpressed by the l eg islature. Ellis , 236 I ll. 2d at 51. ¶ 22 S ub s ec t i o n (f ) ap p l ies to “[a]n action to set aside or contest the validity ” of a tr u s t

rec eivinga leg acy

from a w ill. An “action” ha s been de fined a s

-6-“an ordinary proce eding in a court of justice, by which one party prosec utes another party for the enfor ceme nt or protec tion of a rig ht [or] the redr ess or preve ntion of a wrong ***. *** More acc urate ly
, it is define d to be any judicial proce eding
, which, if conducte d to

a deter mination, will result in a judgme nt or decr ee.” Bla ck’s L aw Dictionary 28-29 (7th ed. 1999) (quoting 1 Morris M

. Estee, Estee’s P leading s, Practice
, and Forms § 3, at 1 (Carte r P. Pomeroy

ed., 3d ed. 1885) ).
See also 7-Elev en, Inc. v. Dar
, 325 I ll. App. 3d 399, 406 (2001). By it s p l ai n terms, subsection (f) ap p l i es to any ordinary judicial proce eding prosec uted by one party ag ainst another to “set aside or contest the val i d i t y ” of a trust, whether it be a quasi in rem proce eding or another ty

pe of proce eding that would have the same eff ec t

. See Pernod v. American National Bank & Trust Co. of Chicago
, 8 I ll. 2d 16, 20 (1956) (noting t h at a “voluntary trust ma

y be set aside only upon a showing that it was induced by fra ud, duress, undue influence or mistake ”) ; see also Ellis
, 236 I ll. 2d at 51 (identifying a wil l contest as

a quasi in rem proce eding t h e object of which is to set aside a will). The trust itself is a “ ‘fiducia ry relationship with respe ct to proper ty , subjecting the person by whom the title to the proper

ty is held to equitable duties t o d ea l wi t h the proper ty for the benef

it of another person, whic h arises as a result of a manifestation of an intention to create it.’ ” (E mphasis omitted.) Eyc haner v. Gross
, 202 I ll. 2d 228, 253 (2002) (quoting Restatement (Second) of Trusts § 2 (1959))

. ¶ 23 Howeve r, as our supreme court rec ently made clea r, in this context specific ally
, a cla im for intentional interfe renc e with an inheritance ex pecta ncy is not an action to “set aside or contest the validity ” of a trust. Ellis
, 236 I ll. 2d at 52. Rather, it is a “per sonal action [i n tort] direc ted at an individual tortfea sor.” Ellis
, 236 I ll. 2d at 52. Although the tort action may rely

on the same evidenc e prese nted in a trust contest, the key inquiries in the tort action are : “(1) the exis tence of an expectancy ; (2) defe ndant’s intentional interfe renc e with the expectancy ; (3) conduct that is tortious in itself, such as fra ud, duress, or undue influence ; (4) a

rea sonable c erta inty

that the expectanc y

would have be en re alized but for the interf ere nce; and (5) damag es.” Elli s , 2 3 6 I l l. 2d at 52. The reme dy is a persona l judgme nt ag ainst the individual defenda

nt, which may

be a money judgme nt or t he im position of a constructive
trust or equitable lien wher e the defe ndant wrong fully rec eived the leg acy

. Ellis
, 236 I ll. 2d
at 52. On the other hand, a trust contest is a challeng e to the validity of the document cre ating it and the reme dy in a trust contest is the setting aside of the trust. See Pernod
, 8 I ll. 2d at 20;

see also Ellis
, 236 I ll. 2d at 51. As such, a tortious interfe renc e claim is not “an action to set aside or contest the validity of” a trust under the plain languag e of subsection (f)

. See Ellis
, 236 I ll. 2d at 53. Although Ellis involved the setting aside of a will as opposed to a trust, the court’s rationale is equally ap plicable here beca use, under the Restatement (Second) of Trusts, “[t] he law g overning the eff ect of fra ud, duress, undue influence [,] and mistake upon testamentar

y dispositi on s i s applicable to testamentar y trusts.” Restatement (Second) of Trusts § 333 cmt. a (1959). See also In re Estate ofBoyar
, 2012 I L App (1st) 111013, ¶ 30. ¶ 24 Ellis went on to rec oncile the plain languag e of subsection (a) with an ea rl i er ca s e in which the court barr ed a tortious interfe renc e claim “whe re a plaintiff fore go es an opportunity to file a [ t o rt i o u s i n terfe renc e] claim within the six -month period for a will

co n t es t.” Ellis
, 236 I ll. 2d at 53. In Robinson v. First State Bank of Monticello
, the cou rt

-7-applied the limit ation period to bar a tortious interfe renc e claim filed more than six months

afte r the will had been admitted to probate
, notwithstanding the plain languag e of the statute. Robin s o n v. F

irst State Bank of Monticello
, 97 I ll. 2d 174 (1983). Howeve r, the key consideration in that case was the fa ct t h at “the plaintiffs *** eng ag ed an attorney to deter mine whether they should file a will contest, *** decide d not to contest the will, [and]
enter ed into a settlement agree ment [wit h the estate] for $125,000.” Robinson , 97 I ll. 2d at 184. In exchang e for that cash se ttlement, the plaintiffs “a llowed the st atutorily presc ribed period in which to contest th e wi l l expire (there by establishing the validity of the will).” Robinson
, 97 I ll. 2d at 184. Severa l months later, the plaintiffs filed a complaint for intentional interfer ence with an inheritanc e expectanc y seekingan additional re cover y

. ¶ 25 The court ref

used to allow the claim to proce ed, rea soning that “if we wer e to allow the plaintiffs to maintain their tort action, we would be giving them a second bite of t he apple and defe ating the purpose of the exclusivi ty of a will contest under section 8-1.” Robinson
, 97 I ll. 2d at 185. Allowing the plaintiffs to maintain the tort action under those circ umstances would have had the “pra ctical eff ect” of i n validating a will that had become valid by
operation of law. Robinson , 97 I ll. 2d at 186; Ellis , 236 I ll. 2d at 54. ¶ 26 Howeve r, Ellis cautioned that Robinson “must be rea d in the context of the fac ts of that

case .” Ellis
, 236 I ll. 2d at 54. Ellis made clea r that in Robinson
, the relief aff orded by the Act

wa s “available” to the plaintiffs but they chose not to avail themselves of it. That i s , t h e plaintiffs knew that the will had been admitted to probate
, they hired an attorney to evaluate the wisdom of setting aside the will, but ult imately chose to settle their

dispute by

takinga cash settlement and fore g oing any further claims arising from the will and codicil. Ellis
, 236 I ll. 2d at 54; Robinson
, 97 I ll. 2d at 185. Thus, the “holding in Robinson was limit ed to not

rec og nizi ng the tort action wher e plaintiffs have an opportunity to contest a probate d will but cho ose not to do so, and subsequently enter into an agree ment to take no further court action.” Ellis , 236 I ll. 2d at 54. ¶ 27 In contra st, the court conclude d, wher e a will co n t es t re medy is not “ava ilable” to a litigant, that litigant may proce ed with a tortious interfe renc e claim. Ellis
, 236 I ll. 2d at 54. The plaintiff in Ellis was a char itable org anization th at was named as a benef iciary of the dece dent’s will executed in 1964. Ellis
, 236 I ll. 2d at 48. In 1999, the dec edent ex ecute d a

new will that left her entire estate to her pastor. Ellis
, 236 I ll. 2d at 48. After the dece dent died, her 1999 will was admitted to probate. Ellis , 236 I ll. 2d at 48. ¶ 28 The plaintiff did not lear n of its interest in the dece dent’s 1964 wi l l until near ly three
y ear s after

her de ath. Ellis , 236 I ll. 2d at 48. The plainti ff then filed a claim for intentional interfe renc e with an inheritanc e expectancy ag ainst the dece dent’s pastor, alleg ing that but for the pastor’s intentional scheme to exercise undue influence over the dece dent and abuse his position of trust, the plaintiff would be the sole benef iciary of the dece dent’s estate. Ellis
, 236 I ll. 2d at 49. The plaintiff specific ally alleg ed that the pastor induced the dece dent to buy him g ifts duri n g her lifetime and to execute the 1999 will naming the pastor as the sole benef iciary of her estate. Ellis , 236 I ll. 2d at 49. ¶ 29 Unlike t he p l ai n t i ffs in Robinson
, the pl aintiff in Ellis was allowed to proce ed with i ts tort claim beca

use a will contest proce eding under th e Ac t was not “ava ilable” to it and,

-8-there fore
, it co u l d not be said that the plaintiff voluntarily relinquished an opportunity to

follow that require d proce dural course

. The plaintiff in Ellis was “unaw are of its bequest in the 1964 will until more than two y ear s afte r t he 1999 will had been admit ted t o probate .” Ellis
, 236 I ll. 2d at 54. Thus, it never had the opportunity to proce ed under the Act. Ellis
, 236 I ll. 2d at 54. ¶ 30 Additionally
, Ellis rec og nized that a will contest would not have provide d the pl aintiff wi t h t h e relief it soug ht. The plaintiff in Ellis soug ht rec overy of inter vivos transfe rs of
proper ty

. E l l is , 236 I ll. 2d at 56. Howeve r, a will contest would only have allowed the plaintiff to re co ver assets that wer e part of the estate and would not have extended to the inter vivos transfe rs, which further supported the conclusion that the will contest proce eding

was unavailable to the plaintiff. Ellis
, 236 I ll. 2d at 56 (citing In re Estate of J eziorski
, 162 I ll. App. 3d 1057, 1063 (1987)). ¶ 31 Acc ording ly , we a nswer the cer

tified question,
“Doe s the six [-] month limit ations period of 755 I L CS 5/8-1(f ) for bring ing a contest to the validity of a trust that rec eives a leg acy from a will admitted to probate apply to a tort action, including an action for [i ]nt entional [i ]nt erf ere nce wi t h an [i ]nheritance [e] x pecta ncy ***? ” in the neg ative with qualification. As with subsection (a), the plain languag e of subse ction (f) provides that the six -month limit ation period applies to challeng es to the validity of a trust but does not app l y to actions for intentional interfe renc e with an inheritanc e expectancy involving a trust that rec eives a leg acy from a will. See Ellis
, 236 I ll. 2d at 56. The exception
to that rule, based on the logic of Robinson
, also extends to actions involving subsection (f)

. That is, if a trust contest is “ava ilable” to a litigant, such that he is “aw are ” of his leg acy and has an opportunity to contest the trust and to obtain complete relief
, but chooses n o t to, instead agree ing to t ak e n o ac tion ag ainst the trust in exchang e for a settlement, then he
cannot later bring a separ ate action for intentio n al interfe renc e with an inheritanc e expectancy

. See Ellis
, 236 I ll. 2d at 54; see also Boyar
, 2012 I L App (1st) 111013, ¶ 30. This exception repr esents the essenc e of the doctrines of elec tion and estoppel, both of which have long been applied in probate matters. S ee Boyar
, 2012 I LApp (1st) 111013, ¶ 28 ( “once a benef iciary has acc epted a benef it und er [ a] wi l l, he will be estopped from asser ting any claim inconsistent with or contra ry to the validity

of that will”). ¶ 32 Howeve r, we decline to addre ss the rema inder of the cert i fi ed q u estion. As too often happens, a cer

tified question is framed as a question of law, but the ultimate dispositi on depends on “the resolution of a host of fac tual predic ates.” Dowd & Dowd, Ltd. v. Gleason
, 181 I ll. 2d 460, 469 (1998); see also Morrissey
, 334 I l l

. App. 3d at 258. Thus, any answe r

we provide would be an advisory opinion. Dowd & Dowd
, 181 I ll. 2d at 469. The courts of I llinois do not issue advisory opinions to guide future litigation and this case is no exception. Golden Rule Insurance Co. v. Schwartz
, 203 I ll. 2d 456, 469 (2003). Specifica lly
, the

rema inder of the question calls for a n application of the Robinson exception to the fac ts of this case to deter

mine whether a trust contest was “ava ilable” to plaintiffs, which is beyond the scope of this appea l. W alker
, 383 I ll. App. 3d at 133 (a Rule 308 appea l is limit ed to

answe ring a cer

tified question of law and was not intended to addre ss the application of the

-9-law to the fa cts of a pa rticular c ase)

. ¶ 33 Additionally
, and for the same rea son, we need not discuss Bjork despite the importance place d on it in the court below. The differ ence in the proce dural postures of these case s makes Bjork inapplicable. In Bjork
, we applied Ellis to deter mine whether under the fac ts of that case , a will contest was “ava ilable” to t h e plaintiff, there by prec luding her action for intentional interfe renc e with an inheritance ex pecta ncy

. Bjork
, 2012 I L Ap p (1 s t) 111617, ¶ 13. In this case , the court must make that deter mination on rema

nd; any doubts about how that deter mina t i o n i s m ad e must be addressed on direc t appea l afte r a final order has been
enter ed in the ca se.

¶ 34 Certified que stion answere d; cause rema nded.

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