Estate plans often include gifts of farmland, rental properties, or family homes — and sometimes, they include special rights for long-time tenants or family members to purchase that property. But as an important 2024 Illinois appellate case reminds us, the exact wording matters. One phrase can dramatically change who controls the property after someone passes away.
In In re Estate of Case, the Illinois Appellate Court drew a clear line between two concepts that people (and sometimes lawyers) mistakenly treat as the same:
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A Right of First Refusal
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An Option to Purchase
The difference can determine who ultimately ends up with the property — and at what price.
Let’s break it down in plain English.
⚖️ What Happened in Estate of Case?
The decedent owned farmland that had been leased for years by a tenant farmer, Thomas Pichon. In her will and later codicil, she gave Pichon what she called a “right of first refusal” to buy the land.
But the codicil didn’t simply say he could match a third-party offer.
Instead, it said:
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Pichon could purchase the land for its appraised value, and
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Only if he declined would the land pass to the remaining devisees.
During probate, the trial court — and eventually the appellate court — decided that even though the document used the words “right of first refusal,” the substance of the language created an option to purchase.
Bottom Line from the Court:
This was not a true right of first refusal.
It was a binding option giving Pichon the power to buy the land at a preset price before anyone else had any rights in it.
Right of First Refusal vs. Option: Why the Difference Matters
Although they sound similar, they operate very differently.
Right of First Refusal (ROFR)
• Tenant can only buy if the property is offered to others first
• Price is based on a third-party offer
• Property cannot be sold without offering matching terms
• Devisees or heirs have an interest unless and until a third party triggers the ROFR
Option to Purchase
• Tenant has the affirmative right to buy, without waiting for a sale
• Price is set in advance (often appraisal or fixed dollar amount)
• Property cannot pass to other beneficiaries unless the option holder declines
• Functionally gives the option holder priority ownership rights
In practical terms:
An option is significantly more powerful — and can dramatically change the expected distribution of the estate.
Why This Case Matters for Illinois Families and Estate Planners
This case is a textbook example of how small wording choices create big legal consequences. Calling something a “right of first refusal” does not control if the language actually gives the holder an unconditional right to purchase.
For Families
If you’re planning to leave property to children but also want to give a tenant or family member a chance to buy it, your documents must be crystal clear about:
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When and how the right is triggered
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How the price is determined
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Whether heirs get the property only if the right is declined
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Whether the holder has a true option or merely a matching right
For Executors
Ambiguous terms can create delays, disputes, and even litigation. Executors should review these clauses early in administration to understand who has priority rights and when.
For Lawyers
The word “option” should be used when you mean it.
The phrase “right of first refusal” should be used only when the client intends its traditional meaning.
Blending the concepts can unintentionally change the entire economic structure of an estate.
Practical Takeaways from Estate of Case
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Labeling isn’t enough. Courts look at what the language does, not just what it’s called.
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Options create vested purchase rights. ROFRs do not.
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Farm families and property-based estates must carefully consider how these tools affect long-term ownership.
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Codicils need the same precision as full wills. Even small amendments can reshape an entire estate plan.
If you or a loved one owns farmland, rental property, or investment real estate, this is an issue you absolutely want to get right.
Need guidance? We can help.
If you have questions about your estate plan, farmland succession, or probate administration — especially involving purchase rights or property transfers — contact us anytime.
📞 (708) 529-7794 | Law Office of Jonathan W. Cole P.C. — “Your Neighborhood Law Firm.”
