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In re Estate of Tait
2017 IL App (3d) 150834
Ill. App. Ct.
2017
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Background

  • 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)
Read the full case

Case Details

Case Name: In re Estate of Tait
Court Name: Appellate Court of Illinois
Date Published: May 18, 2017
Citation: 2017 IL App (3d) 150834
Docket Number: 3-15-0834
Court Abbreviation: Ill. App. Ct.