In re Estate of Tait
74 N.E.3d 64
| Ill. App. Ct. | 2017Background
- Susann M. Zoleske was appointed guardian of the person and estate of her disabled mother, Marion Tait, in 2006; estate value ≈ $138,000 and the trial court initially waived bond.
- Petitioner filed accountings and an annual report sporadically; guardian ad litem Colleen Wengler repeatedly raised concerns about the accounting but did not file written objections before removal.
- After multiple amended accountings (first in 2014, second in July 2015, third in September 2015) and an order in July 2015 requiring petitioner to post a surety bond (which she never posted), the guardian ad litem requested a brief pretrial conference to discuss accounting concerns.
- At the end of that pretrial conference (September 25, 2015), the trial court sua sponte removed petitioner as guardian; no citation to show cause was issued and no formal hearing on removal occurred.
- Petitioner moved to vacate; the trial court denied the motion. Petitioner appealed, arguing the court failed to follow section 23-3 of the Probate Act (notice and hearing before removal).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner preserved objection to removal procedure | Zoleske argued she preserved the issue by moving to vacate and litigating removal procedure below | Respondents argued she waived by not objecting at the pretrial conference | Preserved — petitioner raised the issue in a motion to vacate and argued it at hearing, so appellate review allowed |
| Whether the trial court complied with 755 ILCS 5/23-3 (citation and show-cause hearing) | Removal without citation or opportunity to be heard violated §23-3 and due process | Respondents contended the pretrial conference and prior objections to accounting gave sufficient notice and opportunity | Reversed — court held there was not substantial compliance: petitioner lacked proper notice of causes and a meaningful opportunity to be heard; remand for statutorily required removal hearing |
| Whether procedural defects were harmless given accounting concerns and bond default | Petitioner contended no evidence of mismanagement; bond waiver initially granted and bond issue tied to unresolved accounting approval | Respondents emphasized accounting issues and failure to post bond as grounds for removal | Court found record lacked evidence of estate mismanagement and petitioner was prejudiced by procedural defects; remand required so petitioner can be heard on bond and accounting issues |
| Whether appellees may recover appellate costs if petitioner is later removed on remand | Petitioner sought to avoid costs because removal was improper and appeal successful | Respondents requested costs if subsequent removal affirmed | Court denied appellate costs now; left to trial court discretion on assessing costs after remand if petitioner is removed per §23-3(d) |
Key Cases Cited
- Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d 486 (discusses waiver of issues not raised below)
- In re Estate of Abbott, 38 Ill. App. 3d 141 (1976) (substantial compliance test for §23-3: fair hearing and lack of prejudice)
- In re Estate of Austwick, 275 Ill. App. 3d 665 (1995) (substantial compliance found where parties had notice and could present evidence)
- In re Estate of Denaro, 112 Ill. App. 3d 872 (1983) (substantial compliance where executor had notice of proceedings and opportunities for hearing)
- In re Estate of Rumoro, 90 Ill. App. 3d 383 (1980) (removal reversed where conservator was not notified that removal was at issue)
- In re Estate of Moore, 189 Ill. App. 3d 920 (1989) (burden on representative to justify account items when objections filed)
- In re Estate of Roth, 24 Ill. App. 3d 412 (1974) (same principle regarding burden when objections to accounting are filed)