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FOURTH DIVISION

November 27, 2002

PRESIDING JUSTICE THEIS delivered the opinion of the court:

Petitioner, Gerard V. Centioli, filed a petition for dissolution of marriage. During thependency of the dissolution proceedings, he removed his wife, respondent, Debora C. Centioli, asthe beneficiary of his inter vivos revocable trust. Thereafter, Debora filed a petition forinjunctive relief pursuant to section 501(a)(2) of the Illinois Marriage and Dissolution ofMarriage Act (The Act) (750 ILCS 5/501(a)(2) (West 2000)), to compel Gerard to restore hisestate plan to the status that existed prior to the institution of the dissolution proceedings, and torestrain Gerard from disposing of his property except in the usual course of business or for thenecessities of life. The trial court granted Gerard's motion to dismiss the petition pursuant tosection 2-615 of the Illinois Code of Civil Procedure (the Code)(735 ILCS 5/2-615 (West 2000)for failure to state a cause of action upon which relief could be granted. This appeal raises anissue of first impression as to whether the court can enjoin a spouse from changing thebeneficiary designation of an inter vivos revocable trust while dissolution of marriageproceedings are pending. Additionally, we consider whether Debora has pled sufficient facts toenjoin Gerard from transferring or disposing of marital assets. For the following reasons, weanswer both questions in the negative.

Debora and Gerard were married on September 8, 1979. Subsequently, in 1987, theparties created separate inter vivos revocable trusts for estate planning purposes under whicheach party designated the other as trust beneficiary upon their deaths. The trusts wereaccompanied by a trust agreement. Under Gerard's trust, he was named as settlor and trustee. Article 3 of the trust agreement provided that "[d]uring his lifetime, [t]rustor may alter, amend orrevoke this instrument, in whole or in part, and withdraw from the operation of the trust all orany part of the trust estate." The trust was originally funded with $100. In addition, the partiesboth executed wills that purportedly provide for each of their estates to pour over into theirrespective trusts upon their death.

In January 1998, Gerard filed a petition for dissolution of marriage. During the pendencyof the dissolution proceedings, Gerard removed Debora as the beneficiary of his trust and insteaddesignated his then living descendants as the beneficiaries. In response, Debora filed a petitionfor temporary restraining order, preliminary injunction and other relief pursuant to section5/501(a)(2) of the Act to maintain the status quo with regard to the marital assets. Therein shesought to compel Gerard to restore his estate plan to the status that existed prior to the institutionof the dissolution of marriage proceedings by reinstating Debora as the beneficiary, and sought torestrain Gerard from transferring, encumbering, concealing or otherwise disposing of anyproperty except in the usual course of business or for the necessities of life.

Debora alleges therein that the parties agreed to have mutual wills and that they may notunilaterally revoke the provisions of the wills. Additionally, she maintains that pursuant tosection 503(e) of the Act (750 ILCS 5/503(e)(West 2000)), her rights to the marital propertyvested at the time the dissolution proceedings commenced. She states in her attached affidavitthat there are significant assets titled solely in Gerard's name that constitute vested maritalproperty. These assets either are already registered in the name of the trust or will pour over intothe trust in the event of his death during the pendency of the dissolution proceedings. Withoutthe requested relief, Debora alleges that she would be permanently divested of all of her interestsin the significant marital property that forms the corpus of Gerard's trust. The trial court grantedGerard's section 2-615 motion to dismiss the petition for failure to state a claim upon which reliefcould be granted. Debora filed a timely interlocutory appeal pursuant to Supreme Court Rule307(a)(1). 166 Ill. 2d R. 307(a)(1).

On appeal, Debora contends that the trial court erred in granting Gerard's motion todismiss because she has pled sufficient facts to establish the requirements necessary forpreliminary injunctive relief. A motion to dismiss under section 2-615 (735 ILCS 5/2-615 (West2000)) tests the legal sufficiency of a pleading. Brogan v. Mitchell International, Inc., 181 Ill. 2d178, 183, 692 N.E.2d 276, 277 (1998). When the trial court is presented with a motion todismiss, it must determine whether the complaint sets forth sufficient allegations that, ifestablished, could entitle the plaintiff to relief. Bryson v. News America Publications, Inc., 174Ill. 2d 77, 86, 672 N.E.2d 1207, 1214 (1996). The judge must accept all well-pleaded facts in thecomplaint as true and draw reasonable inferences from those facts that are favorable to theplaintiff. Bryson, 174 Ill. 2d at 86, 672 N.E.2d at 1213. We review the matter de novo. Jacksonv. Michael Reese Hospital & Medical Center, 294 Ill. App. 3d 1, 9, 689 N.E.2d 205, 211 (1997).

Debora requests relief pursuant to section 501(a)(2) of the Act. That section provides, inpertinent part:

"(a) Either party may move for:

* * *

(2) a temporary restraining order or preliminary injunction,accompanied by affidavit showing a factual basis for any of thefollowing relief:

(i) restraining any person from transferring, encumbering,concealing or otherwise disposing of any property except in theusual course of business or for the necessities of life * * *,. [or]

* * *

(iv) providing other injunctive relief proper in thecircumstances." 750 ILCS 5/501(a)(2) (West 2000).

A preliminary injunction is an extraordinary remedy that is applicable only to situationswhere an extreme emergency exists and serious harm would result if not issued. New York LifeInsurance Co. v. Sogol, 311 Ill. App. 3d 156, 158, 724 N.E.2d 105, 107 (1999). Generally, aparty seeking a preliminary injunction must demonstrate that it: (1) has a clearly ascertainableright that needs protection; (2) will suffer irreparable harm without the protection; (3) has noadequate remedy at law; and (4) is likely to succeed on the merits. Delta Medical Systems v.Mid-America Medical Systems, Inc., 331 Ill. App. 3d 777, 789, 772 N.E.2d 768, 779 (2002); Inre Marriage of Schmidt, 118 Ill. App. 3d 467, 470, 455 N.E.2d 123, 125 (1983). With theseprinciples in mind, we examine the issues before us.

In count I of her petition, Debora seeks to compel Gerard to restore his estate plan to thestatus that existed prior to the dissolution proceedings pursuant to section 501(a)(2)(iv). Deboracontends that she has sufficiently pled a clearly ascertainable right in need of protection. Initially, she maintains that she has a right to be reinstated as the beneficiary of Gerard's "pour-over" trust because she and Gerard executed mutual wills and he may not unilaterally revoke theprovisions of his will. Mutual wills are the "separate instruments of two or more persons, whichare reciprocal in their terms, and by which each testator makes a testamentary disposition in favorof the other." In re Estate of Maher, 237 Ill. App. 3d 1013, 1019, 606 N.E.2d 46, 51 (1992). Oneof the main attributes of a will is that it is changeable and may be revoked at any time by thetestator during his lifetime. Thus, mutual wills that deprive a party of the right of revocationmust be established by clear and convincing evidence of a binding contract not to revoke. In reEstate of Maher, 237 Ill. App. 3d at 1020, 606 N.E.2d at 51-52. The mere existence of mutualwills does not give rise to a presumption of such a contract, nor are they evidence that such acontract, in fact, existed. In re Estate of Maher, 237 Ill. App. 3d at 1020, 606 N.E.2d at 52.

Debora's allegations are wholly insufficient to allege either the existence of mutual willsor a binding contract regarding revocation. She has not attached a copy of the wills, but merelymakes the conclusory allegation that the parties' concurrent execution of their estate plans andtheir concurrent revisions evidence an intent to have mutual wills. While she alleges thatcorrespondence from their attorney states that "the terms of your proposed wills and trustagreements must be read together," this merely means that the provisions of the wills must beread in conjunction with the provisions in the trusts. Furthermore, Debora has failed to allegeany facts outside the will that would establish an agreement that neither testator could unilaterallyrevoke the will. Rather, the terms of their trusts specifically provide that during their lifetime,they could revoke the trusts in whole or in part. Absent specific allegations to show that theparties entered into a contract to make mutual wills affecting the right of revocation, Debora'sargument must fail.

Additionally, Debora alleges under count I that she has a clearly ascertainable right to"share in the parties' marital assets in the event of Gerard's death during the pending dissolutionof marriage proceedings." Her argument necessarily involves an understanding of theintersection between her marital right to a division of property in divorce under the Act versusher spousal right to property at Gerard's death under the Probate Act of 1975 (755 ILCS 5/1-1 etseq. (West 2000)). We first consider Debora's rights under the Dissolution Act and the court'sauthority during the pendency of the dissolution proceedings.

Section 503(d) of the Act calls for the equitable distribution of both spouses' property ondivorce and establishes the concept of marital property. 750 ILCS 5/503(d) (West 2000). Pursuant to section 503(b) of the IMDMDA, "all property acquired by either spouse after themarriage and before a judgment of dissolution * * * is presumed to be marital property,regardless of whether title is held individually or by the spouses in some form of co-ownership." 750 ILCS 5/503(b) (West 2000). Further, section 503(e) provides in pertinent part that "[e]achspouse has a species of common ownership in the marital property which vests at the timedissolution proceedings are commenced and continues only during the pendency of the action." 750 ILCS 5/503(e) (West 2000). Thus, during the pendency of the divorce proceedings Deborahas a vested interest in all marital property regardless of which party holds title to it. 750 ILCS5/503(e) (West 2000); Hofmann v. Hofmann, 94 Ill. 2d 205, 446 N.E.2d 499 (1983) (recognizingthe "common enterprise" theory of marriage).

While the term "property" has been defined as "a word of the very broadest import,connoting any tangible or intangible res which might be made the subject of ownership"(emphasis omitted) (In re Marriage of Goldstein, 97 Ill. App. 3d 1023, 1026, 423 N.E.2d 1201,1203 (1981)), in order to be property within the ambit of the Act, "the res must be in the nature ofa present property interest, rather than a mere expectancy interest" (emphasis omitted) ( In reMarriage of Weinstein, 128 Ill. App. 3d 234, 244, 470 N.E.2d 551, 559 (1984)). An expectancyinterest is the " ' interest of a person who merely foresees that he might receive a futurebeneficence, such as the interest of an heir apparent * * * or of a beneficiary designated by aliving insured who has a right to change the beneficiary.' " In re Marriage of Weinstein, 128 Ill.App. 3d at 244, 470 N.E.2d at 559, quoting In re Marriage of Pesheck, 89 Ill. App. 3d 959, 964,412 N.E.2d 698, 702 (1980).

Here, Gerard has a revocable trust in the nature of a will substitute which provides thathis estate will pour over into his trust upon his death. Thus, Debora's right to a beneficial interestin Gerard's trust was but a mere expectancy. While Gerard's change in beneficiary may be arelevant factor in determining an equitable distribution of property (see In re Marriage of Eddy,210 Ill. App. 3d 450, 460, 569 N.E.2d 174, 181 (1991)), it cannot be characterized as a vestedproperty interest within the ambit of the Act. Consequently, her beneficial interest is not aclearly ascertainable right to be protected.

Furthermore, while Debora argues that she only seeks to maintain the status quo, theeffect of requiring Gerard to replace her as the beneficiary during the pendency of the dissolutionproceedings would result in her obtaining his entire estate if he were to die during the pendencyof the divorce. This amount would be certainly more than she would acquire under an equitabledistribution of the marital estate and would result in an overcompensation to Debora. Rather, theright Debora seeks to protect in the instant case is essentially the continued right to an equitabledistribution of the marital assets in the event of Gerard's death.

However, it is well settled in Illinois that the death of either party to a divorce action priorto final judgment deprives the circuit court of jurisdiction over all aspects of the marriagerelationship. In re Estate of Chandler, 90 Ill. App. 3d 674, 679, 413 N.E.2d 486, 491 (1980). Thus, if Gerard were to die during the pendency of the divorce proceedings, the assets in his trustwould no longer be within the divorce court's jurisdiction and would instead be subject toprobate law which is concerned not with equitable distribution of property, but only withproperty rights. In Illinois, if Gerard dies intestate, Debora would be entitled to one half of hisestate if Gerard has surviving descendants or all of the estate if he has no surviving descendants. 755 ILCS 5/2-1(a), (c) (West 2000). If Gerard dies testate, Debora has the right to renounceGerard's will and claim her elective share of one third of the estate if Gerard leaves descendantsor one half of the estate if he leaves no descendants. 755 ILCS 5/2-8(a) (West 2000).

We are cognizant, however, of the possible inconsistencies between Debora's rights indivorce and her spousal rights. If Gerard were to transfer all of his assets into the trust prior tohis death such that none of the assets were to pass through probate, Debora could beundercompensated. Johnson v. La Grange State Bank, 73 Ill. 2d 342, 358, 383 N.E.2d 185, 192(1978)(property transferred to a revocable trust prior to death not subject to surviving spouse'srenunciation unless transfer was "'colorable' or 'illusory' and tantamount to fraud"). We agreethat this outcome would not reflect the partnership-based theory of marriage.

We note that under recent amendments to North Carolina law, the legislature has soughtto ensure that, in the event a spouse dies prior to a distribution of property, a surviving spousewould receive a distribution that would reflect the partnership-based theory of marriage. Toprevent the undercompensation of a spouse, the legislature has provided that a pending action forequitable distribution of marital assets does not abate upon the death of a party. N.C. Gen. Stat.