Appellate Law

Order Upholding Guardian?s Refusal Sell Ward?s House Reviewed For Abuse Of Discretion

By Steven R. Merican

Rosa Neal was guardian of a disabled person?s estate. On behalf of her ward, Rosa contracted to sell the ward?s home to Damon Perry. Damon asked for, and received, approval from the probate court of the contract for sale of the property.

The contract had a mortgage contingency clause. Damon asked for a 30-day extension a day before the contingency was set to expire. The estate refused Damon?s request. Damon then said he would waive the contingency and that he intended to purchase the house as planned. But the estate had received a better offer, so its attorney told Damon that his inability to get a mortgage commitment by the contingency deadline rendered the contract null and void.

Damon then asked the probate court to enforce his contract to purchase the house. But the probate court agreed with the estate, and ruled ?that the contract was null and void due to the mortgage contingency provision, and, moreover, because of equitable considerations the contract was not in the best interests of the estate.?

Damon appealed. The parties argued over the correct standard of review. Damon wanted a de novo standard; the estate wanted review by a manifest weight of the evidence.

The First District Illinois Appellate Court chose a third ground. Because the probate court?s decision was ?rooted on equitable grounds,? the appellate court chose to review the decision with an ?abuse of discretion? standard. Here?s the court?s thinking:

Our reference to the [Illinois] Probate Act of 1975 ? does not reflect a clear statement of the standard of review to be applied to probate court orders generally. Although de novo review would be proper if we were interpreting the Probate Act, here we are not presented with a matter of statutory interpretation ? While issues concerning the construction, interpretation, or legal effect of contracts are subject to de novo review, it has long been recognized that decisions rooted on equitable grounds should only be disturbed when there is a clear abuse of discretion in the judgment rendered by the lower court ? Where a party seeks confirmation of an offer to purchase the assets of an estate, the court, as de facto vendor, may enter or withhold consent, in its discretion ? Accordingly, we will review the decision in the case sub judice under that standard.

In the end, Damon?s contract was tossed. Read the whole opinion, Perry v. Estate of Carpenter, No. .1-09-0312 (11/13/09), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on February 09, 2010 (boomark / email).