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In re Estate of Burd

December 13, 2004


Appeal from the Circuit Court of Lake County. No. 02-P-54. Honorable John R. Goshgarian, Judge, Presiding.

The opinion of the court was delivered by: Justice Kapala


The former executor of Margaret P. Burd's estate, Kenneth F. Theisen (Theisen), appeals from the order of the circuit court of Lake County denying his motion to reconsider the circuit court's order removing him as executor. We reverse.


Margaret Burd (Burd) had three children, Nancy Lefler, Robert Burd, and petitioner, Susan Ross. Burd signed her last will and testament on June 15, 2001. The will was witnessed by Theisen and his wife Mary Theisen. Theisen was Burd's attorney and had also represented other members of the Burd family, including Burd's three children, during the past 25 years. Theisen was also named as the executor of Burd's estate. Burd died on December 27, 2001.

On January 16, 2002, Theisen filed a petition for probate of will and for letters testamentary. On January 25, 2002, an order was entered admitting the will to probate and appointing Theisen as independent executor. Also on that date, an affidavit of heirship was filed upon which an order of heirship was entered. A waiver of notice, which had been signed by all three of Burd's children, was also filed on January 25, 2002. This waiver indicated, inter alia, that signing the document meant that the signer consented to the appointment of Theisen as "Independent Representative" of the estate. All three Burd children also signed an "Appearance and Proof of Will" form.

On February 25, 2002, petitioner's counsel sent a notice of motion to all parties regarding a petition for substitution of judge. On March 1, 2002, petitioner's counsel filed an appearance. Theisen acted as executor without objection to his representative status until March 4, 2003. On that date, petitioner filed her petition for revocation of letters of office. The petition alleged that Theisen violated section 4--6(a) of the Probate Act of 1975 (Probate Act) (755 ILCS 5/4--6(a) (West 2002)), which provides that an attesting witness forfeits any beneficial interest in a will unless certain exceptions, not applicable to this case, are present. Theisen argued in the trial court, inter alia, that the motion was not timely filed. The trial court granted the petition and removed Theisen as executor. Theisen filed a motion to reconsider which was denied. Theisen timely appealed.


Theisen makes three contentions on appeal. First, that petitioner's motion for removal was time barred under Supreme Court Rule 304(b)(1) (155 Ill. 2d. R. 304(b)(1)). Second, that petitioner's actions in the trial court amounted to a waiver of her right to challenge Theisen's appointment as executor. Third, that petitioner did not comply with the procedural and substantive requirement of section 23--2 of the Probate Act (755 ILCS 5/23--2 (West 2002)), which governs removal of executors. As we explain below, we agree with Theisen's first contention and we find our resolution of this issue dispositive.

Preliminarily, we note that the parties disagree as to the standard of review which is appropriate in this case. Theisen admits that, generally, the decision to remove an executor will not be reversed unless the decision was against the manifest weight of the evidence. In re Estate of Kirk, 242 Ill. App. 3d 68, 74 (1993). However, Theisen contends that when the decision to remove involves interpretation of law, our review should proceed de novo. We agree. In order to determine the appropriate standard of review, we must not simply look to the type of ruling being appealed, but we must analyze the contentions made by the appellant. An appeal from a given ruling could implicate several different standards of review depending on the appellate contentions. See Franz v. Calaco Development Corp., No. 2--03--0672, slip op. at 8-11 (October 21, 2004). As we have already stated, we will address only Theisen's first contention as our resolution of that issue is dispositive. However, we find it important to note that all three of Theisen's contentions on appeal do not dispute any factual findings of the trial court but, instead, Theisen asks us to determine the legal effect of a supreme court rule, certain sections of the Probate Act (755 ILCS 5/1--1 et seq. (West 2002)), and actions taken by petitioner. We review questions of law, including the construction of statutes and supreme court rules, de novo. Robidoux v. Oliphant, 201 Ill. 2d 324, 332 (2002).

Theisen contends that Supreme Court Rule 304(b)(1) (155 Ill. 2d R. 304(b)(1)) mandates that a motion to remove an executor must be filed within 30 days of the order appointing the executor. Rule 304 states, in relevant part:

"(b) Judgments and Orders Appealable Without Special Finding. The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:

(1) A judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status ...

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