The Law Offices of Cooper, Storm & Piscopo - family law

Contact Us

877-391-7889 630-232-6170
Our offices are ready to serve your needs during this crisis. However, effective immediately, for the health and safety our staff and clients, and everyone in our community, we are taking steps to limit in person contact in our offices except in extraordinary circumstances. Please do not come into the offices without contacting us first. We will be glad to schedule phone appointments! We are also taking steps to handle important matters for our existing and prospective clients whenever and wherever possible by electronic means. Please do not hesitate to reach out to us by phone or email. Thank you for your understanding and patience. We will all get through this if we work together!

Cooper, Storm &
Piscopo Blog

in the section

Beneficiaries Stated Claim for Breach of Fiduciary Duty and Breach of Trust Provisions Where Their Father Made a Gift from Marital/Family Trust to His New Wife

Gwinn v. Gwinn, 2016 IL App (2d) 150851

The Second District Appellate Court in Illinois has ruled that the gift provisions in a Marital/ Family Trust did not give the surviving Husband as trustee the discretion to make a large gift from the trust to his new wife. The Court held that even though the trust provisions permitted him to use the trust assets for what he deemed in his discretion to be "necessary or advisable" for his health, support and maintenance, that did not authorize him to use large amounts of money to pay for the construction of a home in Colorado and title it in his new wife's name. The court relied with authority on the the Restatement (Third) of Trusts ยง 50 cmt. d(2) (2003),which explains that provisions for using trust assets for the support and maintenance of a beneficiary do not authorize distributions in order to enlarge the beneficiary's personal estate or to enable the making of extraordinary gifts. The Court also relied on the principle of construction "expressio unius est exclusio alterius" to interpret the Trust provisions to decide that the express grant of power to make gifts of assets to the Grantor's (deceased wife's) descendants was an implied denial of power to make gifts of assets to any person other than the Grantor's descendants. The case illustrates that practitioners and trustees should carefully review Marital/Family Trusts to be certain that the intended level of discretion is set forth in the trust provisions. In addition, in administering a Family Trust, a trustee/beneficiary must carefully consider whether contemplated distributions may be deemed to be outside the discretion granted by the Trust provisions. Peter M. StormCooper, Storm & Piscopo

No Comments

Leave a comment
Comment Information

Contact The Firm

Bold labels are required.

Contact Information

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.


Privacy Policy

Contact Us
The Law Offices Cooper, Storm & Piscopo hours of operation

Monday-Friday: 8-4:30 pm
Saturday & Evenings: By Appointment Only

117 South 2nd Street
Geneva, IL 60134

Geneva Business Law Office