In re Estate of Tait
2017 IL App (3d) 150834
Ill. App. Ct.2017Background
- Susann M. Zoleske was appointed guardian of her 95‑year‑old mother Marion Young Tait’s person and estate in 2006; estate valued ~ $138,000 and court initially waived bond.
- Petitioner filed accountings intermittently; the court waived regular accountings until 2009, then required reports later after status inquiries.
- Guardian ad litem Colleen Wengler repeatedly raised concerns about the accountings (2013–2015); multiple amended accountings were filed; Wengler requested a brief pretrial conference to discuss accounting issues.
- At the end of the pretrial conference in September 2015 (no record of the conference), the trial court sua sponte removed Zoleske as guardian and later ordered she post a surety bond, which she never posted.
- Zoleske moved to vacate, arguing she was removed without citation or opportunity to show cause as required by 755 ILCS 5/23‑3; the trial court denied the motion and Zoleske appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation (waiver) | Zoleske argued removal procedure objection was preserved via motion to vacate and hearing. | Respondents argued she failed to object during the pretrial conference. | Court: Issue preserved—Zoleske raised procedural objection in motion to vacate and at hearing. |
| Statutory compliance with 755 ILCS 5/23‑3 (citation & hearing) | Zoleske: Court failed to issue citation stating causes and denied opportunity to show cause/hearing. | Respondents: Pretrial conference and prior objections to accountings put Zoleske on notice and opportunity to respond. | Court: Reversed—trial court did not comply; Zoleske lacked notice of causes and opportunity to be heard; remand for removal hearing under §23‑3. |
| Substantial compliance doctrine | Zoleske: No substantial compliance because she was prejudiced by lack of notice/hearing. | Respondents: Prior proceedings and discussions amounted to substantial compliance. | Court: No substantial compliance; due process required adequate notice and meaningful opportunity to be heard. |
| Assessment of appeal costs | N/A (respondents sought costs if removal later affirmed) | Respondents sought costs of appeal if later removal is affirmed. | Court: Denied costs now; may assess costs on remand if petitioner is removed after a proper §23‑3 proceeding. |
Key Cases Cited
- Western Casualty & Surety Co. v. Brochu, 105 Ill.2d 486 (1985) (issues not raised at trial generally waived on appeal)
- In re Estate of Abbott, 38 Ill. App. 3d 141 (1976) (substantial compliance with §23‑3 shown when party awarded a fair hearing)
- In re Estate of Austwick, 275 Ill. App. 3d 665 (1995) (public guardian notification and opportunity to present evidence supports substantial compliance)
- In re Estate of Denaro, 112 Ill. App. 3d 872 (1983) (notice of proceedings and opportunities for hearing support substantial compliance)
- In re Estate of Rumoro, 90 Ill. App. 3d 383 (1980) (removal reversed where conservator was not notified removal was at issue and lacked opportunity to be heard)
- In re Estate of Moore, 189 Ill. App. 3d 920 (1989) (burden on representative to prove account items are proper when objections are filed)
- In re Estate of Roth, 24 Ill. App. 3d 412 (1974) (discussing burden of proof with accounting objections)
