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FIFTH DIVISION
March 29, 2002

No. 1-00-3376

Before she died, Genevieve Romanowski gave her daughter Evelyn Wall power of attorney in a statutory short form power ofattorney. Evelyn, acting in that capacity, deeded a piece ofcommercial property into trust, designating Genevieve beneficiaryof that trust, and herself and her daughter, Eileen Wall, as thecontingent beneficiaries. When Genevieve died, the property wassold with Evelyn and Eileen retaining the proceeds of the sale. Edward, Genevieve's son, filed a petition for letters ofadministration which was granted over objection. The estate fileda motion for summary determination of major issues of respondent'sliability on petition to recover property. The trial court foundin favor of the estate, ordering Evelyn and Eileen (the Walls) toturn over all of the proceeds from the sale to the estate. TheWalls now timely appeal from that order. No questions are raisedon the pleadings.

On appeal, the Walls argue that: (1) the trial court erred infinding there existed no genuine issue of material fact in dispute;(2) the trial court erred in finding Evelyn Wall acted beyond thescope of the power of attorney; and (3) the trial court erred indeclaring void the designation of Evelyn and Eileen Wall ascontingent beneficiaries. For the reasons that follow, we affirm.

I. STATEMENT OF FACTS

On January 10, 1993, Genevieve Romanowski executed a statutoryshort form power of attorney designating her daughter, Evelyn Wall,as her agent for property matters. The statutory short form powerof attorney was signed by both Genevieve and Evelyn. No specificlimitations or expansions were designated by Genevieve in thespaces provided on the form.

Genevieve owned various assets, one of which included a rent-producing, multiple-unit, residential and commercial building inChicago. On March 25, 1993, Evelyn, acting under the power ofattorney, executed a land trust agreement, creating trust No. 3189,with the First National Bank of LaGrange. Evelyn executed a deedin trust, conveying the building into the trust. Evelyn designatedGenevieve as the beneficiary of the land trust and designatedherself and her daughter, Eileen Wall, as the only contingentbeneficiaries upon the death of Genevieve.

On May 13, 1997, Genevieve died leaving no will. Genevievewas survived by her four children, Edward Romanowski, JohnRomanowski, Nancy Scymczak and Evelyn Wall. On September 29, 1998,Evelyn directed the trust to sell the building. As the trust'spurported contingent beneficiaries, Evelyn and Eileen received andretained the proceeds from the building sale. The proceeds totaled$569,722.64.

On January 11, 1999, Edward filed a petition for letters ofadministration. Evelyn filed a cross-petition for letters ofadministration, asserting that she sold the building and retainedthe proceeds in accordance with the power of attorney and,therefore, no letters should be issued because there were no debtsor property to administer. On January 29, 1999, the trial courtgranted Edward's petition and letters of administration wereissued.

On February 16, 1999, as independent administrator ofGenevieve's estate, Edward filed a petition for citations forrecovery of property. The petition requested that Evelyn turn overthe proceeds from the sale of the building. In August of 1999, thetrial court preliminarily enjoined Evelyn from transferring ordissipating the funds from the sale. On October 4, 1999, Evelynfiled a responsive pleading to the petition. On May 10, 2000, theestate then filed a motion for summary determination of the majorissue of respondent's liability on the petition to recoverproperty.

On August 9, 2000, the motion for summary determinationproceeded to hearing. The trial court found that Evelyn exceededthe scope of her agency authority. The court found that Evelyn didnot have the authority to designate herself and Eileen ascontingent beneficiaries of the trust and, therefore, declared thedesignation void. The court ordered that the proceeds of the saleof the building were property of the estate. Evelyn now timelyappeals.

II. ANALYSIS

Summary judgment is proper when the pleadings, depositions,admissions on file and any affidavits show that there is no genuineissue of material fact and the moving party is entitled to judgmentas a matter of law. 735 ILCS 5/2-1005(c) (West 1998). Theinterpretation of a formal power of attorney and the effect ofrelevant statutory provisions on the powers granted the agent namedtherein are questions of law that are appropriately decided on amotion for summary judgment. Wirtz Realty Corp. v. Freund, 308Ill. App. 3d 866, 873, 721 N.E.2d 589 (1999). The standard ofreview on a summary judgment ruling involving statutoryinterpretation is de novo. King v. Industrial Comm'n, 189 Ill. 2d167, 171, 724 N.E.2d 896 (2000).

Evelyn argues that the trial court erred in finding that thereexisted no genuine issue of material fact in dispute. Specifically, Evelyn maintains that the intent of Genevieve withregard to the building was a disputed issue of material fact. Evelyn argues in her brief that the "repeated implicationscontained in the motion for summary determination as to whatGenevieve wanted to accomplish, versus what she allegedly didaccomplish by executing the Power of Attorney, go to Genevieve'sintent, which is a genuine issue of material fact in disputebetween the parties."

For the purposes of appeal, this argument is waived. A partyclaiming he has not been given the opportunity to prove his casemust provide a reviewing court with an adequate offer of proof asto what the excluded evidence would have been. Chicago ParkDistrict v. Richardson, 220 Ill. App. 3d 696, 701, 581 N.E.2d 97(1991). The purpose of an offer of proof is to disclose the natureof the offered evidence for the information of the trial judge andopposing counsel, and to allow the reviewing court to determinewhether exclusion was erroneous and harmful. Wright v. Stokes, 167Ill. App. 3d 887, 522 N.E.2d 308 (1988). "To be adequate, an offerof proof must apprise the trial court of what the offered evidenceis or what the expected testimony will be, by whom it will bepresented and its purpose." Chicago Park District v. Richardson,220 Ill. App. 3d at 701. In the absence of an offer of proof, theissue of whether evidence was improperly excluded will be deemedwaived. Tarshes v. Lake Shore Harley Davidson, 171 Ill. App. 3d143, 524 N.E.2d 1136 (1988).

In this case, Evelyn is essentially complaining that she wasnot allowed to prove her case where the trial court prevented herfrom introducing evidence as to Genevieve's intent. This argumentis not persuasive where Evelyn failed to file a verified answer tothe motion for summary determination on the petition to recoverproperty. Although Evelyn had generally argued in her pleadingsthat Genevieve intended to name Evelyn and Eileen as contingentbeneficiaries, she did not file an affidavit or offer of proof asto the evidence from which that intent could be ascertained. Infact, the only evidence introduced to support this assertion wasEvelyn's statement in a responsive pleading that the trust officerat the bank contacted Genevieve and confirmed that she did wish tohave the trust established and to have Evelyn and Eileen namedcontingent beneficiaries. However, Evelyn never tendered anaffidavit of the officer attesting to such or sought to call him asa witness to make an offer of proof. By failing to make adequateoffers of proof on this issue, Evelyn cannot complain that thetrial court erred in failing to admit evidence. Based on therecord before us, we can only speculate whether Evelyn wasprejudiced by the failure to admit evidence of Genevieve's intent,and therefore Evelyn's argument is waived.

Even were the argument not deemed waived, the trial court didnot commit reversible error in granting the motion for summarydetermination. A written power of attorney must be strictlyconstrued so as to reflect the "clear and obvious intent of theparties." Amcore Bank N.A. v. Hahnaman-Albrecht, Inc., 326 Ill.App. 3d 126, 135, 759 N.E.2d 174, 182 (2001), quoting Fort DearbornLife Insurance, Co. v. Holcomb, 316 Ill. App. 3d 485, 499 (2000). In the case at bar, Genevieve Romanowski utilized the statutoryshort form power of attorney in appointing Evelyn as her agent. The instrument at issue provided:

"POWER OF ATTORNEY made this 10th day of January (month) 1993 (year)

1. I, Genevieve Romanowski 1619 West North AvenueChicago, IL 60622, (insert name and address ofprincipal) hereby appoint:

Evelyn Wall 146 North Drexel, La Grange, IL 60525(insert name and address of agent) as my attorney-in-fact (my agent) to act for me and in myname (in any way I could act in person) with respect tothe following powers, as defined in Section 3-4 of the'Statutory Short Form Power of Attorney for Property Law'(including all amendments), but subject to anylimitations on or additions to the specified powersinserted in paragraph 2 or 3 below:

(YOU MUST STRIKE OUT ANY ONE OR MORE OF THE FOLLOWINGCATEGORIES OF POWERS YOU DO NOT WANT YOUR AGENT TO HAVE.FAILURE TO STRIKE THE TITLE OF ANY CATEGORY WILL CAUSETHE POWERS DESCRIBED IN THAT CATEGORY TO BE GRANTED TOTHE AGENT. TO STRIKE OUT A CATEGORY YOU MUST DRAW A LINETHROUGH THE TITLE OF THAT CATEGORY.)

(a) Real estate transactions.

(b) Financial institution transactions.

(c) Stock and bond transactions.

(d) Tangible personal property transactions.

(e) Safe deposit box transactions.

(f) Insurance and annuity transactions.

(g) Retirement plan transactions.

(h) Social Security, employment and military servicebenefits.

(i) Tax matters.

(j) Claims and litigation.

(k) Commodity and option transactions.

(l) Business operations.

(m) Borrowing transactions.

(n) Estate transactions.

(o) All other property powers and transactions.

(LIMITATIONS ON AND ADDITIONS TO THE AGENT'S POWERS MAYBE INCLUDED IN THIS POWER OF ATTORNEY IF THEY ARESPECIFICALLY DESCRIBED BELOW.)

2. The powers granted above shall not include thefollowing powers or shall be modified or limited in thefollowing particulars (here you may include any specificlimitations you deem appropriate, such as a prohibitionor conditions on the sale of particular stock or realestate or special rules on borrowing by the agent):

3. In addition to the powers granted above, I grant myagent the following powers (here you may add any otherdelegable powers including, without limitation, power tomake gifts, exercise powers of appointment, name orchange beneficiaries or joint tenants or revoke or amendany trust specifically referred to below): "

Genevieve's alleged oral representation to the trust officerthat she agreed with the creation of the trust and the designationof contingent beneficiaries would have been inadmissible evidenceof assent to the delegation of trust beneficiaries. As the estaterecognizes, the parol evidence rule precludes a party fromintroducing or relying upon evidence of a party's intention inentering into a written agreement where that agreement isunambiguous.

Looking to the tenets of Illinois probate law, it isfundamental that any disposition by way of verbal guidelines isprohibited by the Probate Act of 1975 (Probate Act) (755 ILCS 5/1-1et seq. (West 1998)). In re Estate of Reiman, 115 Ill. App. 3d879, 881, 450 N.E.2d 928 (1983). Section 4-3(a) of the Probate Actprovides that every will must be in writing and signed by thetestator. In re Estate of Koziol, 236 Ill. App. 3d 478, 603 N.E.2d60 (1992). "'The rules governing the admission of extrinsicevidence to aid in the construction of a will are well settled inthis State, the crucial determination in each case being whether asa matter of law the will is ambiguous, necessitating extrinsicevidence. [Citation.]'" In re Estate of Giganti, 231 Ill. App. 3d828, 831, 596 N.E.2d 1224 (1992). This same rule applies tocontracts. Chicago Investment Corp. v. Dolins, 93 Ill. App. 3d971, 418 N.E.2d 59 (1981). In Illinois, contract interpretationfollows the "four corners" doctrine, so that we look only to thelanguage of the contract to determine if it is susceptible to morethan one meaning. Air Safety, Inc. v. Teachers Realty Corp., 185Ill. 2d 457, 462, 706 N.E.2d 882, 885 (1999). A party does notcreate an ambiguity and thereby open the door to extrinsic evidencemerely by offering evidence that the testator did not intend to saywhat is otherwise clearly stated in a will. Coussee v. Estate ofEfston, 262 Ill. App. 3d 419, 425-26, 633 N.E.2d 815 (1994).

While no Illinois cases are directly on point, in light of thetenets of law governing testamentary dispositions and contracts, wehold that it is improper to admit oral evidence as to thedelegation of contingent beneficiaries of a trust through a powerof attorney when it appears the same is governed by an unambiguouswritten agreement in existence. The decision in Estate of Hustonv. Greene, 51 Cal. App. 4th 1721, 1727 60 Cal. Rptr. 2d 217, 221(1997), offers guidance on this issue. As the California court ofappeals held:

"'A power of attorney is a written authorization to anagent to perform specified acts on behalf of theprincipal. [Citation.] The rights and liabilities createdby the exercise of such authority are centered in the lawof agency. [Citation.] [Citation.] Ratification of anagent's act' can be made only in the manner that wouldhave been necessary to confer an original authority forthe act ratified...[Citation.] Because a power ofattorney must be in writing, any act performed by theagent acting under the power of attorney must thereforebe ratified in writing to be valid."

Therefore, because the short form was in writing and wasunambiguous, Genevieve's purported oral assent is not admissibleevidence to establish her intent that Evelyn have authority to namecontingent beneficiaries to the trust. For these reasons, we holdthat the trial court properly granted summary judgment to theestate.

Evelyn next argues that the trial court erred in finding thatshe acted beyond the scope of her agency authority in designatingherself and her daughter, Eileen, as contingent beneficiaries tothe land trust. She maintains that these designations werepermissible under the language of the Illinois Power of AttorneyAct (Act) (755 ILCS 45/1-1 et seq. (West 1998)).

In 1987 the Illinois legislature enacted the Illinois Power ofAttorney Act. Under the Act, a power of attorney can be designatedthrough a short form power of attorney. The statutory short formwas enacted with the purpose that "the public interest requires astandardized form of power of attorney that individuals may use toauthorize an agent to act for them in dealing with their propertyand financial affairs." 755 ILCS 45/3-1 (West 1998). The Actfurther provides that "[a] short statutory form offering a set ofoptional powers is necessary so that the individual may design thepower of attorney best suited to his or her needs in a simplefashion and be assured that the agent's authority will be honoredby third parties with whom the agent deals, regardless of thephysical or mental condition of the principal at the time the poweris exercised." 755 ILCS 45/3-1 (West 1998). The portions of thestatute relevant to this case provide:

"