ILLINOIS OFFICIAL REPORTS

Appellate Court

In re Estate of Luccio, 2012 IL App (1st) 121153

Appellate Court

Caption

In re ESTATE OF BENJAMIN LUCCIO, Deceased (Rocco Lucio, John

Lucio, Patricia Chiarello, Danielle Morey, Niccole Morey, Amanda

Morey, Beneficiaries Under a Prior Trust, and Tina Norton, as Mother

and Legal Guardian of Kaylee Norton, Beneficiary Under a Prior Trust,

Plaintiffs-Appellees, v. Khristian Rao, Individually and as Beneficiary

Under the Sixth Amendment to the Benjamin Luccio a/k/a Bernardino

Luccio, Declaration of Trust Dated January 12, 2001, DefendantAppellant (St. Jude’s Children’s Research Hospital, Beneficiary Under

the Sixth Amendment to the Benjamin Luccio, a/k/a Bernardino Luccio,

Declaration of Trust Dated January 12, 2001, and ATG Trust Company,

as Trustee of the Benjamin Luccio, a/k/a Bernardino Luccio, Declaration

of Trust Dated January 12, 2001, Defendants)).

 District & No. First District, Second Division

Docket No. 1-12-1153

Filed December 18, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In answer to a certified question, the appellate court ruled that the sixmonth limitations period in section 8-1(f) of the Probate Act for bringing

a contest to the validity of a trust that receives a legacy from a will

admitted to probate does not apply to a tort action for intentional

interference with an inheritance expectancy, but if a trust contest is

“available” to a litigant, and he is “aware” of his legacy, but agrees to

take no action in exchange for a settlement, then he cannot later bring a

tort action.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, Nos. 09-P-7737, 10-CH46854 cons.; the Hon. James G. Riley, Judge, presiding.
Judgment Certified question answered; cause remanded.

Counsel on

Appeal

Peter J. Schmiedel, Robert W. Kaufman, and Amanda M. Byrne, all of

Fischel & Kahn, Ltd., of Chicago, for appellant. 

Andrew T. Hays, of Hays Firm LLC, of Chicago, for appellees.

Panel JUSTICE CONNORS delivered the judgment of the court, with opinion.

Presiding Justice Harris and Justice Quinn concurred in the judgment and

opinion.

OPINION

¶ 1 Plaintiffs filed a complaint in the chancery division against defendant Khristian Rao,

among others, for intentional interference with an inheritance expectancy and breach of

fiduciary duty in a matter involving a testamentary trust. The case was then transferred to the

probate division and consolidated with a pending action involving the estate of the decedent,

Benjamin Luccio. Rao moved to dismiss the claims against her as time-barred under section

8-1(f) of the Probate Act of 1975 (Act) (755 ILCS 5/8-1(f) (West 2008)). The circuit court

denied the motion to dismiss. After also denying Rao’s motion to reconsider, the court

certified the following question for interlocutory appeal under Illinois Supreme Court Rule

308 (eff. Feb. 26, 2010):

“Does the six[-]month limitations period of 755 ILCS 5/8-1(f) for bringing a contest to

the validity of a trust that receives a legacy from a will admitted to probate apply to a tort

action, including an action for [i]ntentional [i]nterference with an [i]nheritance

[e]xpectancy where, unlike a will that has been admitted to probate, the trust instrument

and amendments thereto are not publicly filed or otherwise made available to tort

claimants who were to have received a benefit from a prior version of the trust or an

amendment thereto?”

On May 25, 2012, a different division of this court allowed the interlocutory appeal. For the

reasons that follow, we answer the certified question in the negative, with qualification.

¶ 2 BACKGROUND

¶ 3 The following facts were taken from plaintiffs’ first amended complaint. On January 12,

2001, the decedent executed the “Benjamin Luccio, a/k/a Bernardino Luccio, Declaration of

Trust Dated January 12, 2001” (Trust). The second amendment to the decedent’s Trust,

executed in 2007, gave the balance of a bank account to his nephew, specific monetary gifts

to his niece and grandchildren, and the balance of the residuary trust estate to his brother.

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¶ 4 In September of 2008, the decedent hired Rao to provide in-home medical care for his

ailing wife, Maxine. Rao allegedly accompanied the decedent to his bank to retrieve some

financial documents from a safety deposit box before visiting an attorney “in order to amend

[the d]ecedent’s estate plan.” Rao then transported Maxine to her home in Arkansas against

the advice of Maxine’s doctors.

¶ 5 Overthe next few months, the decedent began to exhibit signs of dementia. Although the

decedent had been paying Rao for Maxine’s medical care, he also allegedly transferred

$130,000 to Rao in December of 2008. In January of 2009, the decedent retained an attorney

recommended by Rao to amend his Trust. The third amendment gave the decedent’s house

to his daughter, Tina Norton, and the balance of his residuary trust estate to Rao. Two weeks 1

later, the decedent executed a fourth amendment to his Trust, adding a monetary bequest to

his nephew.

¶ 6 In March of 2009, the decedent was diagnosed with advanced dementia and required

around-the-clock medical care. Around the same time, Maxine died. Rao then moved from

Arkansas into the decedent’s home to provide him with in-home medical care.

¶ 7 A couple of weeks later, the decedent executed a fifth amendment to his Trust. In it, he

gave a monetary gift to a children’s research hospital, he gave his house to his nephew, and

the balance of the residuary trust estate was to be divided equally between Rao and three of

the decedent’s relatives. In June of 2009, the decedent executed a sixth amendment to his

Trust, which gave a monetary gift to the hospital and the balance of the residuary trust estate

to Rao.

¶ 8 Shortly thereafter, Rao moved the decedent to her home in Arkansas without telling his

family. The decedent’s family members located him a couple of months later in Arkansas.

Rao allegedly “cut off communications between the [d]ecedent and his relatives, telling the

[d]ecedent that they no longer cared for him.” While in Rao’s care, the decedent broke his

hip and during the surgery to repair it, he suffered a heart attack. Norton tried to make

arrangements to visit the decedent, 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 decedent

died on November 5, 2009.

¶ 9 Rao later told Norton that the decedent’s Trust was being administered by ATG Trust

Company, which was represented by attorney James Kash. Norton contacted Kash to get

copies of the will and trust documents, but he allegedly refused to provide her with those

documents.

¶ 10 On October 28, 2010, plaintiffs filed a lawsuit in the chancery division against Rao,

ATG, and the children’s hospital. Counts I and II sought to set aside the Trust because the

decedent lacked capacityto execute the third, fourth, fifth, and sixth amendments to the Trust

and because the amendments were procured through undue influence. Counts III and IV were

Tina Norton is not a plaintiff in this case, but appears in the caption as the mother and legal 1

guardian of plaintiff Kaylee Norton. As the sole heir of the decedent’s estate, Tina Norton filed an

unsuccessful petition to set aside the admission of the will to probate. However, none of the probate

orders are involved in this interlocutory appeal.

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directed at Rao, alleging that she intentionally interfered with plaintiffs’ inheritance

expectancy when she induced the decedent to amend the Trust and that she breached her

fiduciary duty to the decedent. Count V sought to enjoin ATG from disbursing any funds or

assets under the terms of the Trust.

¶ 11 The case was transferred to the probate division and was consolidated with the pending

probate matter. The defendants each moved to dismiss the complaint as time barred under

section 8-1(f) of the Act. The court dismissed counts I and II with prejudice, but permitted

plaintiffs to amend the remaining counts.

¶ 12 Plaintiffs then submitted their first amended complaint, which is at issue in this case.

Count I again allegesthat Rao intentionallyinterfered with plaintiffs’ inheritance expectancy.

Plaintiffs asserted that they were beneficiaries under prior versions of the Trust and that Rao

unduly influenced the decedent to “transfer large sums of money and/or stocks to her during

[the d]ecedent’s lifetime. These transfers included funds from checking accounts, savings

accounts, brokerage accounts and certificates of deposit.” They alleged that but for Rao’s

interference, they would have inherited from an estate worth more than $1.5 million, which

was its value before Rao induced the decedent to transfer his assets to her. Count II asserted

a claim for breach of fiduciary duty against Rao, alleging that she used her relationship with

the decedent to force him to execute the third, fourth, fifth, and sixth amendments to the

Trust and appropriate his assets for her own benefit. Count III of the amended complaint was

directed at ATG, seeking to enjoin it from disbursing any assets under the Trust.

¶ 13 Rao again filed a motion to dismiss the complaint, arguing that the tort claims were

barred by section 8-1. After oral argument on the motion, the court issued a written opinion.

It recounted that the Trust is the sole legatee of the will that was admitted to probate. It noted

that plaintiffs’ complaint does not contest the validity of the decedent’s will or the Trust;

rather, it seeks a personal judgment against Rao for her tortious interference with the

plaintiffs’ inheritance expectancy. It further noted that although the will had been filed with

the court, distributed to all heirs and legatees, and become a public document pursuant to the

Act, the Trust had not because Illinois law does not require the same disclosure of trust

documents. Accordingly, the court stated, there is “a huge gap in how we treat a will contest

versus trust contests yet both are subject to the same six[-]month statute of limitation.” The

court also noted that plaintiffs requested copies of the will and Trust from Kash, the estate’s

attorney, and ATG, the trustee, but the documents were “not forthcoming in a timely

manner.”

¶ 14 The court then denied Rao’s motion to dismiss and allowed the tort claims to proceed

based on the following findings. Plaintiffs were not entitled to a copy of the Trust because

they were not named beneficiaries. Under these circumstances, the court concluded that

plaintiffs would have to have filed a lawsuit against the trustee to obtain a copy of the Trust

in order to discover whether they could have brought suit to challenge the Trust, all within

the six-month time frame for filing a trust contest under section 8-1(f) of the Act. The court

found that process to be “unduly burdensome” and contrary to the public policy of ensuring

“an orderly settlement of estates.” It also concluded that a will contest would not have

benefitted plaintiffs because the decedent’s will was a “pour over” will that transferred his

residual estate into the Trust, as did the prior version of his will; thus, the decedent’s residual

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estate would have been governed by the terms of the Trust regardless of which version of the

will was admitted to probate. Additionally, plaintiffs sought to recover the value of allegedly

fraudulent inter vivos transfers the decedent made to Rao, which relief cannot be obtained

in a will contest proceeding. Thus, the court concluded that plaintiffs were not required to

file a will contest within six months of the will being admitted to probate pursuant to section

8-1 and could proceed with their tort claim.

¶ 15 Rao filed a motion to reconsider, citing our recent opinion in Bjork v. O’Meara, 2012 IL

App (1st) 111617, in support. The court denied the motion to reconsider but certified the 2

question that is the subject of this appeal. This court granted Rao’s application for

interlocutory appeal.

¶ 16 ANALYSIS

¶ 17 We begin with a recitation of the scope of review we apply to Rule 308 appeals.

Generally, courts of appeal have jurisdiction to review only final judgments entered in the

trial court, absent a statutory exception or rule of the supreme court. Walker v. Carnival

Cruise Lines, Inc., 383 Ill. App. 3d 129, 133 (2008). Supreme Court Rule 308 provides one

such exception. Rule 308 allows for permissive appeal of an interlocutory order certified by

the trial court as involving a question of law as to which there is substantial ground for

difference of opinion and where an immediate appeal may materially advance the ultimate

termination of the litigation. Ill. S. Ct. R. 308 (eff. Feb. 26, 2010); Brookbank v. Olson, 389

Ill. App. 3d 683, 685 (2009). However, the rule was not intended to be a mechanism for

expedited review of an order that merely applies the law to the facts of a particular case.

Walker, 383 Ill. App. 3d at 133; Morrissey v. City of Chicago, 334 Ill. App. 3d 251, 258

(2002). Nor does it permit us to review the propriety of the order entered by the lower court.

Walker, 383 Ill. App. 3d at 133. Rather, we are limited to answering the specific question

certified by the trial court to which we apply a de novo standard of review. Moore v. Chicago

Park District, 2012 IL 112788, ¶ 9.

¶ 18 Initially, we note that the certified question presents a case of first impression. Although

the Act as a whole reflects the long-standing principles of probate law and the process for

the orderly settlement of estates (Robinson v. First State Bank of Monticello, 97 Ill. 2d 174,

186 (1983)), subsection (f) of the Act, which governs a challenge to the validity of a

revocable inter vivos trust that receives a legacy from a will, has yet to be construed by

Illinois courts. Until 1995, such challenges to testamentary trusts proceeded under section

13-223 of the Code of Civil Procedure (Code). 735 ILCS 5/13-223 (West 2008). However, 3

as part of a larger legislative enactment, the language of section 13-223 was added to the Act

verbatim and, along with some additional statutory references, became subsection (f). See

On May 30, 2012, the Illinois Supreme Court allowed the petition for leave to appeal in 2

Bjork. Bjork v. O’Meara, 2012 IL App (1st) 111617, appeal allowed, No. 114044 (Ill. May 30,

2012). The case was argued before the supreme court on November 20, 2012.

We render no opinion on the continuing applicability of section 13-223. 3

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Pub. Act 89-364 (eff. Aug. 18, 1995) (adding 755 ILCS 5/8-1(f)).

¶ 19 The language of subsection (f) reads as follows:

“An action to set aside or contest the validity of a revocable inter vivos trust agreement

or declaration of trust to which a legacy is provided by the settlor’s will which is

admitted to probate shall be commenced within and not after the time to contest the

validity of a will as provided in subsection (a) of this Section [(755 ILCS 5/8-1(a) (West

2008))] and Section 13-223 of the Code of Civil Procedure [(735 ILCS 5/13-223 (West

2008))].” 755 ILCS 5/8-1(f) (West 2008).

The reference to subsection (a) of the Act imposes a requirement that any such challenge to

the validity of the trust be filed within six months of the accompanying will’s admission to

probate. 755 ILCS 5/8-1(a) (West 2008); In re Estate of Ellis, 236 Ill. 2d 45, 50 (2009).

¶ 20 The six-month limitation period in subsection (a) has long been recognized as a

jurisdictional limitation barring any claims filed beyond that period. Ellis, 236 Ill. 2d at 50.

However, we have previously characterized the limitation period of a testamentary trust

contest under section 13-223 as administrative and not jurisdictional. Anderson v. Marquette

National Bank, 164 Ill. App. 3d 626, 634-35 (1987) (noting that section 13-223 merely

prescribes the commencement of the limitations period and its duration). In Anderson, we

concluded that because section 13-223 is part of the Code, it should be liberally construed

to protect against the procedural pitfalls of common law pleading that often deny litigants

an opportunity to have their disputes heard on the merits. Anderson, 164 Ill. App. 3d at 635.

On the other hand, we said that the limitation period in the Act is jurisdictional, and

justifiably so, because as a whole, it contains very specific notice provisions that require

strict adherence. Anderson, 164 Ill. App. 3d at 633-34. Thus, we held, section 13-223 “does

not carry with it the jurisdictional aspect of the *** Act.” Anderson, 164 Ill. App. 3d at 635.

Although we need not construe section 13-223 for purposes of this appeal, we note that the

analysis underlying our holding in Anderson must be revisited to reflect the change that the

legislature made to include testamentary trust contests within the statutory organization of

the Act. Nevertheless, because subsection (f) is part of the Act, it must be construed as a

jurisdictional limitation, as subsection (a) has long been construed.

¶ 21 Turning to the question at issue, whether the six-month jurisdictional limitation period

in subsection (f) applies to a claim for intentional interference with an inheritance expectancy

involving a trust that receives a legacy from a will admitted to probate, we begin with the

familiar rules of statutory construction. Our primary objective in construing a statute is to

ascertain and give effect to the intent of the legislature. Ellis, 236 Ill. 2d at 50. All other rules

of statutory construction are subordinate to this principle. Alvarez v. Pappas, 229 Ill. 2d 217,

228 (2008). The best evidence of legislative intent is the language of the statute itself, which

must be given its plain and ordinary meaning. Ellis, 236 Ill. 2d at 50. Where the statutory

language is clear and unambiguous, we may not depart from its plain meaning by reading

into it exceptions, limitations, or conditions not expressed by the legislature. Ellis, 236 Ill.

2d at 51.

¶ 22 Subsection (f) applies to “[a]n action to set aside or contest the validity” of a trust

receiving a legacy from a will. An “action” has been defined as

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“an ordinary proceeding in a court of justice, bywhich one partyprosecutes another party

for the enforcement or protection of a right [or] the redress or prevention of a wrong ***.

*** More accurately, it is defined to be any judicial proceeding, which, if conducted to

a determination, will result in a judgment or decree.”Black’s Law Dictionary 28-29 (7th

ed. 1999) (quoting 1 Morris M. Estee, Estee’s Pleadings, Practice, and Forms § 3, at 1

(Carter P. Pomeroy ed., 3d ed. 1885)).

See also 7-Eleven, Inc. v. Dar, 325 Ill. App. 3d 399, 406 (2001). By its plain terms,

subsection (f) applies to any ordinary judicial proceeding prosecuted by one party against

another to “set aside or contest the validity” of a trust, whether it be a quasi in rem

proceeding or another type of proceeding that would have the same effect. See Pernod v.

American National Bank & Trust Co. of Chicago, 8 Ill. 2d 16, 20 (1956) (noting that a

“voluntary trust may be set aside only upon a showing that it was induced by fraud, duress,

undue influence or mistake”); see also Ellis, 236 Ill. 2d at 51 (identifying a will contest as

a quasi in rem proceeding the object of which is to set aside a will). The trust itself is a

“ ‘fiduciary relationship with respect to property, subjecting the person by whom the title to

the property is held to equitable duties to deal with the property for the benefit of another

person, which arises as a result of a manifestation of an intention to create it.’ ” (Emphasis

omitted.) Eychaner v. Gross, 202 Ill. 2d 228, 253 (2002) (quoting Restatement (Second) of

Trusts § 2 (1959)).

¶ 23 However, as our supreme court recently made clear, in this context specifically, a claim

for intentional interference with an inheritance expectancy is not an action to “set aside or

contest the validity” of a trust. Ellis, 236 Ill. 2d at 52. Rather, it is a “personal action [in tort]

directed at an individual tortfeasor.” Ellis, 236 Ill. 2d at 52. Although the tort action may rely

on the same evidence presented in a trust contest, the key inquiries in the tort action are: “(1)

the existence of an expectancy; (2) defendant’s intentional interference with the expectancy;

(3) conduct that is tortious in itself, such as fraud, duress, or undue influence; (4) a

reasonable certainty that the expectancy would have been realized but for the interference;

and (5) damages.” Ellis, 236 Ill. 2d at 52. The remedy is a personal judgment against the

individual defendant, which may be a money judgment or the imposition of a constructive

trust or equitable lien where the defendant wrongfully received the legacy. Ellis, 236 Ill. 2d

at 52. On the other hand, a trust contest is a challenge to the validity of the document creating

it and the remedy in a trust contest is the setting aside of the trust. See Pernod, 8 Ill. 2d at 20;

see also Ellis, 236 Ill. 2d at 51. As such, a tortious interference claim is not “an action to set

aside or contest the validity of” a trust under the plain language of subsection (f). See Ellis,

236 Ill. 2d at 53. Although Ellis involved the setting aside of a will as opposed to a trust, the

court’s rationale is equally applicable here because, under the Restatement (Second) of

Trusts, “[t]he law governing the effect of fraud, duress, undue influence[,] and mistake upon

testamentary dispositions is applicable to testamentary trusts.” Restatement (Second) of

Trusts § 333 cmt. a (1959). See also In re Estate of Boyar, 2012 IL App (1st) 111013, ¶ 30.

¶ 24 Ellis went on to reconcile the plain language of subsection (a) with an earlier case in

which the court barred a tortious interference claim “where a plaintiff foregoes an

opportunity to file a [tortious interference] claim within the six-month period for a will

contest.” Ellis, 236 Ill. 2d at 53. In Robinson v. First State Bank of Monticello, the court

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applied the limitation period to bar a tortious interference claim filed more than six months

after the will had been admitted to probate, notwithstanding the plain language of the statute.

Robinson v. First State Bank of Monticello, 97 Ill. 2d 174 (1983). However, the key

consideration in that case was the fact that “the plaintiffs *** engaged an attorney to

determine whether they should file a will contest, *** decided not to contest the will, [and]

entered into a settlement agreement [with the estate] for $125,000.” Robinson, 97 Ill. 2d at

184. In exchange for that cash settlement, the plaintiffs “allowed the statutorily prescribed

period in which to contest the will expire (thereby establishing the validity of the will).”

Robinson, 97 Ill. 2d at 184. Several months later, the plaintiffs filed a complaint for

intentional interference with an inheritance expectancy seeking an additional recovery.

¶ 25 The court refused to allow the claim to proceed, reasoning that “if we were to allow the

plaintiffs to maintain their tort action, we would be giving them a second bite of the apple

and defeating the purpose of the exclusivity of a will contest under section 8-1.” Robinson,

97 Ill. 2d at 185. Allowing the plaintiffs to maintain the tort action under those circumstances

would have had the “practical effect” of invalidating a will that had become valid by

operation of law. Robinson, 97 Ill. 2d at 186; Ellis, 236 Ill. 2d at 54.

¶ 26 However, Ellis cautioned that Robinson “must be read in the context of the facts of that

case.” Ellis, 236 Ill. 2d at 54. Ellis made clear that in Robinson, the relief afforded by the Act

was “available” to the plaintiffs but they chose not to avail themselves of it. That is, the

plaintiffs knew that the will had been admitted to probate, they hired an attorney to evaluate

the wisdom of setting aside the will, but ultimately chose to settle their dispute by taking a

cash settlement and foregoing any further claims arising from the will and codicil. Ellis, 236

Ill. 2d at 54; Robinson, 97 Ill. 2d at 185. Thus, the “holding in Robinson was limited to not

recognizing the tort action where plaintiffs have an opportunity to contest a probated will but

choose not to do so, and subsequently enter into an agreement to take no further court

action.” Ellis, 236 Ill. 2d at 54.

¶ 27 In contrast, the court concluded, where a will contest remedy is not “available” to a

litigant, that litigant may proceed with a tortious interference claim. Ellis, 236 Ill. 2d at 54.

The plaintiff in Ellis was a charitable organization that was named as a beneficiary of the

decedent’s will executed in 1964. Ellis, 236 Ill. 2d at 48. In 1999, the decedent executed a

new will that left her entire estate to her pastor. Ellis, 236 Ill. 2d at 48. After the decedent

died, her 1999 will was admitted to probate. Ellis, 236 Ill. 2d at 48.

¶ 28 The plaintiff did not learn of its interest in the decedent’s 1964 will until nearly three

years after her death. Ellis, 236 Ill. 2d at 48. The plaintiff then filed a claim for intentional

interference with an inheritance expectancy against the decedent’s pastor, alleging that but

for the pastor’s intentional scheme to exercise undue influence over the decedent and abuse

his position of trust, the plaintiff would be the sole beneficiary of the decedent’s estate. Ellis,

236 Ill. 2d at 49. The plaintiff specifically alleged that the pastor induced the decedent to buy

him gifts during her lifetime and to execute the 1999 will naming the pastor as the sole

beneficiary of her estate. Ellis, 236 Ill. 2d at 49.

¶ 29 Unlike the plaintiffs in Robinson, the plaintiff in Ellis was allowed to proceed with its

tort claim because a will contest proceeding under the Act was not “available” to it and,

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therefore, it could not be said that the plaintiff voluntarily relinquished an opportunity to

follow that required procedural course. The plaintiff in Ellis was “unaware of its bequest in

the 1964 will until more than two years after the 1999 will had been admitted to probate.”

Ellis, 236 Ill. 2d at 54. Thus, it never had the opportunity to proceed under the Act. Ellis, 236

Ill. 2d at 54.

¶ 30 Additionally, Ellis recognized that a will contest would not have provided the plaintiff

with the relief it sought. The plaintiff in Ellis sought recovery of inter vivos transfers of

property. Ellis, 236 Ill. 2d at 56. However, a will contest would only have allowed the

plaintiff to recover assets that were part of the estate and would not have extended to the

inter vivostransfers, which furthersupported the conclusion that the will contest proceeding

was unavailable to the plaintiff. Ellis, 236 Ill. 2d at 56 (citing In re Estate of Jeziorski, 162

Ill. App. 3d 1057, 1063 (1987)).

¶ 31 Accordingly, we answer the certified question,

“Does the six[-]month limitations period of 755 ILCS 5/8-1(f) for bringing a contest to

the validity of a trust that receives a legacy from a will admitted to probate apply to a tort

action, including an action for [i]ntentional [i]nterference with an [i]nheritance

[e]xpectancy ***?”

in the negative with qualification. As with subsection (a), the plain language of subsection

(f) provides that the six-month limitation period applies to challenges to the validity of a trust

but does not apply to actions for intentional interference with an inheritance expectancy

involving a trust that receives a legacy from a will. See Ellis, 236 Ill. 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 “available” to a litigant, such that he is “aware” of his legacy and

has an opportunity to contest the trust and to obtain complete relief, but chooses not to,

instead agreeing to take no action against the trust in exchange for a settlement, then he

cannot later bring a separate action for intentional interference with an inheritance

expectancy. See Ellis, 236 Ill. 2d at 54; see also Boyar, 2012 IL App (1st) 111013, ¶ 30. This

exception represents the essence of the doctrines of election and estoppel, both of which have

long been applied in probate matters. See Boyar, 2012 IL App (1st) 111013, ¶ 28 (“once a

beneficiary has accepted a benefit under [a] will, he will be estopped from asserting any

claim inconsistent with or contrary to the validity of that will”).

¶ 32 However, we decline to address the remainder of the certified question. As too often

happens, a certified question is framed as a question of law, but the ultimate disposition

depends on “the resolution of a host of factual predicates.” Dowd & Dowd, Ltd. v. Gleason,

181 Ill. 2d 460, 469 (1998); see also Morrissey, 334 Ill. App. 3d at 258. Thus, any answer

we provide would be an advisory opinion. Dowd & Dowd, 181 Ill. 2d at 469. The courts of

Illinois do not issue advisory opinions to guide future litigation and this case is no exception.

Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 469 (2003). Specifically, the

remainder of the question calls for an application of the Robinson exception to the facts of

this case to determine whether a trust contest was “available” to plaintiffs, which is beyond

the scope of this appeal. Walker, 383 Ill. App. 3d at 133 (a Rule 308 appeal is limited to

answering a certified question of law and was not intended to address the application of the

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law to the facts of a particular case).

¶ 33 Additionally, and for the same reason, we need not discuss Bjork despite the importance

placed on it in the court below. The difference in the procedural postures of these cases

makes Bjork inapplicable. In Bjork, we applied Ellis to determine whether under the facts of

that case, a will contest was “available” to the plaintiff, thereby precluding her action for

intentional interference with an inheritance expectancy. Bjork, 2012 IL App (1st) 111617,

¶ 13. In this case, the court must make that determination on remand; any doubts about how

that determination is made must be addressed on direct appeal after a final order has been

entered in the case.

¶ 34 Certified question answered; cause remanded.

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