The requirements for admitting a will to probate under the Illinois Probate Act appear at first blush to be relatively straight-forward. However, as in all legislation, once the human element is added, questions regarding such "straightforward" provisions inevitably arise. For example, does a clause within the will referencing a verbal directive satisfy the writing requirement? Does the testator’s handwritten name, anywhere on the will, satisfy the signature requirement? Does the requirement that witnesses "attest" the will require the witness’ signature at the time of execution? This article will review how the courts have responded to these and other issues, which the human element has brought to the Probate Act.
Section 5/4-3 of the Illinois Probate Act ("Act") provides that a will must be in writing, signed by the testator or by some person in his presence and at his direction and attested to in the testator’s presence by two or more credible witnesses.1 Section 5/6-4(a) of the Act enumerates the requirements for admission of a will to probate.2 Under this section the petitioner must show that each of the two witnesses: (1) was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or the testator acknowledged it to the witness as his act; (2) signed the will in the presence of the testator; and (3) believed the testator to be of sound mind and disposing memory. In addition, there must be no evidence of fraud, forgery, compulsion or other improper conduct sufficient to invalidate the will.3
Once these requirements are met, the court may impose no others, such as a testamentary disposition of property. Therefore, if an instrument purporting to be a will complies with the statutory provisions but makes no testamentary disposition, it is nevertheless valid and must be admitted to probate.4 This ruling has consequences in the case where the non-testamentary instrument names an executor or revokes a prior will.5
The will must be written
The Probate Act requires that a will be written. It stands to reason then that a tape recording is not a will.6 While the Act does not provide for a videotaped will, videotapes of the execution of the will with or without a testator’s explanation of the will dispositions have been used as evidence of mental capacity and no undue influence.7
Even where a will is written, a provision within the will directing an executor to distribute property in accordance with the testator’s "verbal guidelines" is not a valid testamentary disposition.8 In such a case, while the will itself may be admitted to probate, the verbal guidelines provision will be treated as an invalid trust.9 In Reiman, the executor argued that the verbal guidelines created a general power of appointment. The court distinguished a general power of appointment, subject to a discretionary exercise, from a trust creating enforceable rights against the trustee.10 The court held that the provision at issue evinced the testator’s intention to direct property disposition rather than creating a discretionary power of appointment. Since this disposition failed to specify enforceable rights in ascertainable beneficiaries, it was considered a failed trust. As such, the property passed through intestate succession to the decedent’s heirs.11
While a separate writing, such as a trust provision, may be incorporated by reference, it must be properly identified.12 Similarly, a general or specific power of appointment may be created, but only with appropriate language.13 The drafting attorney must question the testator to determine exactly what he intends and then specify those intentions in writing.
Testator’s Signature Requirement
A will must be "signed by the testator or by some person in his presence and by his direction."14 Generally, an issue under this provision arises in cases where somebody guides a testator’s hand in the execution of the instrument. In most cases, the validity of the signature is upheld for purposes of admitting the will to probate. 15 Thus, where the testator rested her hand on her attorney’s while he signed her name was sufficient to establish a valid signature. 16 It is not essential that the testator sign the will in the presence of the witnesses provided the testator acknowledge his signature on the will, as "his act."17 A testator may nod his head to acknowledge his signature.18 Moreover, it is not essential that the testator identify the instrument as his will as long as he acknowledged that it is his signature on the document.19
The testator must have intended that his handwritten name be his authenticating signature. This issue arises when the testator has written his name in the opening paragraph of the will rather than at the end of the will in a signature clause. This was the case in, In re Estate of Carroll,20 where the decedent filled in sections of a preprinted form will with cursive handwriting naming an executor and bequeathing property. This was sufficient evidence that the deceased intended her written name at the beginning of the will to be her authenticating signature.21
A different result occurred in, Matter of Estate of Wedeberg, where the decedent wrote, "Opal Wedeberg’s Will" at the top of her three page handwritten will and but left no signature at the bottom.22 The court denied the will holding that there was insufficient proof that the testator intended her handwritten name to be her signature.23 The court distinguished Carroll on several grounds, first noting that the format of the Carroll Will indicated that the decedent intended her name in the first line to be her signature. Next, in Carroll there were witness attestation clauses not present in Wedeberg. Finally, the court opined that Carroll failed to follow Hoffman, an Illinois Supreme Court opinion invalidating a will under similar circumstances.24
There must be attesting witnesses
Two credible witnesses must attest to the will.25 This requirement has been regarded as a protective measure to prevent fraud and to judge the testator’s mental capacity.26 While the testator may sign a will outside the presence of the witnesses and later acknowledge his signature, the attesting witnesses must attest the will in the presence of the testator.27
The requirement that a witness "attest" to a will includes the act of signing the will as opposed to simply perceiving the testator sign the will.28 In Lum, the decedent dictated and signed a will that was never signed by witnesses. Two witnesses signed affidavits after the decedent’s death averring that they saw him sign the will and believed him to be of sound mind and memory at that time. The trial court found that "attest" means to "acts as a witness to" and admitted the will. Reversing, the appellate court held that the term "attest" also requires the act of signing.29
The witness must not only sign the will but must do so with the intention of being the attesting witness as opposed to some other purpose.30 Therefore, an issue may arise as to whether a notary public signed a will in his official capacity attesting to the authenticity of the signatures or whether he was signing as an attesting witness.31 The issue is determined by the circumstances in which the notary signed. Thus, where it appears that the notary signed in his official capacity, his signature is not effective as an attesting witness.32
The requirement that the attesting witnesses be "credible" is interpreted to mean "competent" and arises in cases where one or both of the attesting witnesses or their spouses are beneficiaries under the will.33 Illinois courts have held that the spouse of a devisee under a will is not a competent witness to that will.34 The Act now provides that any legacy to a person (or their spouse) that is a witness to a will is void unless a sufficient number of witnesses otherwise attest to the will.35 Thus, under the statute a beneficiary or the spouse of a beneficiary may be a competent attesting witness but if there are insufficient disinterested witnesses, his or her legacy will lapse.36 The Act provides, however, that the beneficiary heir-at-law is entitled to receive the legacy to the extent that it does not exceed his or her interest had the decedent died intestate.37
For purposes of admission, the court is not required to find that the testator was of sound mind and memory when he executed the will but only that the witnesses believed that he was.38 Thus, an attesting witness is not required to provide foundational testimony regarding the basis of his belief that the testator was of sound mind and memory.39 This reflects the legislative intent to expedite the administration of a decedent’s estate so that an executor can be appointed to marshal and protect the assets of the estate.40 Deeper inquiry into the mental capacity of the testator is reserved for a subsequent will contest.41 Thus, when a will is properly attested, there is a presumption of proper execution and a court will not weigh the evidence further than to determine whether a prima facie case for admitting the will to probate has been demonstrated.42
While the witness attestation clause is ubiquitous in modern wills, neither a formal attestation clause nor any words at all need accompany witness signatures for validity.43 While not required, the witness attestation clause has traditionally played an important role in validating wills where attesting witnesses are forgetful, equivocating, or recant.44 Thus, a properly executed attestation clause may establish prima facie validity even where attesting witnesses had no recollection of the execution of the will.45 Whether witness attestation clauses are admissible in a "formal proof" hearing pursuant to section 6-21 of the Act is arguably unclear.46 While section 6-21 prohibits the use of attestation clauses at "formal proof" hearings,47 appellate courts, at least in the first district, appear to sanction their use.48
Fraud, forgery, compulsion or other improper conduct
The admissions proceeding is generally limited to determining whether the will has been executed in accordance with the statutory formalities.49 While contestants may introduce evidence showing fraud, forgery, compulsion or other improper conduct sufficient to invalidate the will, a will is rarely denied admission on these grounds. The "fraud" permitted to be proven at an admission hearing does not include issues of testamentary capacity.50 Rather, it relates to conduct such as inducing a person to sign the document believing it is something else; altering the will after it has been signed; substituting another paper for part of the will after it has been signed, or similar conduct.51 "Compulsion" means constraint or pressure, physical or otherwise, amounting to duress, or threats to compel the execution of the instrument.52 "Other improper conduct" refers to conduct "similar" to fraud and compulsion.53
When circumstances suggest forgery, the court may consider all the facts bearing on the validity of the document.54 Where several factors standing alone may not be significant, taken together they may sufficiently establish decedent’s signature as a forgery to defeat admission.55 Evidence of forgery of a deceased attesting witnesses’ signature is also sufficient to defeat admission.56
The admission of a will is the first of a continuum of proceedings in the probate process and is limited to determining whether a prima facie showing of compliance with the Act has been made. While such compliance is shown in the vast majority of admission proceedings, inevitably issues surface and are ultimately resolved in the appellate courts. It behooves the probate practitioner to stay tuned as appellate opinions continue to address these issues.
1 755 ILCS 5/4-3. Signing and Attestation (a) Every will shall be in writing, signed by the testator or by some person in his presence and by his direction and attested in the presence of the testator by 2 or more credible witnesses. (b) A will that qualifies as an international will under the Uniform International Wills Act is considered to meet all the requirements of subsection.
2 755 ILCS 5/6-4.
3 755 ILCS 5/6-4(a); In re Estate of Nicola, 275 Ill.App.3d 497, 499, 656 N.E.2d 431,433 (3rd D 1995).
4Estate of Parker, 42 Ill.App.3d 860,866, 356 N.E.2d 967, 969 (1st D 1776) citing, Sheperd v. Yokum, 323 Ill.328, 334, 145 N.E.156, 159 (1926).
6 Muka v. Estate of Muka, 164 Ill.App.3d 223, 517 N.E.2d 262 (1987).
7 See, e.g., In re Estate of Peterson, 232 Neb. 105, 439 N.W.2d 516 (1989); Hammer v. Powers, 819 S.W.2d 669 (Tex.Civ.App. 1991); Comment, Videotaped Wills: An Evidentiary Tool or a Written Will Substitute, 77 Iowa L. Rev. 1187 (1992); Beyer, Gerry, W and Buckley, William, R., Videotape and the Probate Process: The Nexus Grows, 42 Okla. L. Rev. (1989).
8 In the Matter of the Estate of Reiman, 115 Ill.App.3d 879, 450 N.E.2d 928 (1983).
9 115 Ill.App.3d at 881-882, 450 N.E.2d at 932 citing, Wagner v. Clauson, 399 Ill. 403, 405-406, 78 N.E.2d 203, 205 (1948).
10 115 Ill.App.3d at 884-885, 450 N.E.2d at 930.
12 In re Meskimen’s Estate, 39 Ill.2d 415, 235 N.E.2d 619 (1968) (The incorporated document must exist at the time of the will’s execution and the description of the document must correspond sufficiently to the actual document in order to demonstrate the testator’s intent to incorporate it by reference.) See also, In re Estate of Phelan, 375 Ill.App.3d 875, 874 N.E.2d 185 (1st D 2007)(Pour-over will incorporates trust by reference.)
13 See generally, Estate of Schaff, 19 Ill.App.3d 662, 312 N.E.2d 348 (4th D 1974).
14 See note 1.
15 See, e.g., Matter of Estate of Weaver, 50 Ill.App.3d 223, 365 N.E.2d 1038 (5th D 1977).
16 In re Kehl’s Estate, 397 Ill.251, 73 N.E.2d 437 (——).
17 Weaver, 365 N.E.2d at 1044, citing, In re Lagow’s Will, 391 Ill.72, 62 N.E.2d 469,472 (1945).
18 Id., citing, Bronson v. Martin, 384 Ill. 129, 51 N.E.2d 149, 152; (1943) and In re Lagow’s Will, 391 Ill.72, 62 N.E.2d 469, 472.
19 Id. While assisted signatures and nonverbal indications usually satisfy the signing and acknowledgment requirements for validating a will, these facts may not always impress a jury in a subsequent will contest. See, e.g., Bailey v. Clark, 203 Ill.App.3d 1017, 561 N.E.2d 367 (5th D 1990).
20 192 Ill.App.3d 202, 548 N.E.2d 650 (1st D 1989).
21 192 Ill.App.3d 192 at 206, 548 N.E.2d at 652. In accord, Yowell v. Hunter, 403 Ill. 202, 85 N.E.2d 674 (1949) (Where will was typed, fact that name was written in exordium clause would indicate that it was intended as authenticating signature.)
22 226 Ill.App.3d 948, 589 N.E.2d 1000 (4th D 1992).
23 226 Ill.App.3d at 951-952, 589 N.E.2d at 1003 citing, Bamberger v. Barbour, 335 Ill.458, 167 N.E. 122 (1929) (Holding that the primary purpose in placing the name in the exordium clause was descriptive; no evidence showed decedent intended it to be his signature; and no declaration the instrument was a will.)
24 Id., citing, Hoffman v. Hoffman, 370 Ill. 176, 179, 18 N.E.2d 209, 210 (1938), in which the court affirmed a circuit court order denying probate of a holographic will.
25 See note 1.
26 Weaver, 50 Ill.App.3d 223, 230, 356 N.E.2d 1038, 1044.
27 See notes 1 and 2. This requirement is explicit in both section 5/4-3 and section 5/6-4(a) of the Act.
28 In re Estate of Lum, 298 Ill.App.3d 791, 699 N.E.2d 1049 (1st D 1998).
29 298 Ill.App.3d at 792-793, 699 N.E.2d at 1050.
30 In re Estate of Alfaro, 301 Ill.App.3d 500, 703 N.E.2d 620 (2nd D 1998). In accord, Williams v. Springfield Marine Bank, 131 Ill.App.3d 417, 475 N.E.2d 1122 (4th D 1985)(Witness did not sign addendum with the intention of being an attesting witness but as a trust officer on behalf of the trustee.)
31 Alfaro at 510, 703 N.E.2d at 627 citing, In re Estate of Koziol, 236 Ill.App.3d 478, 483, 603 N.E.2d 60 (1st D 1992).
32 Id., citing, In re Hammer’s Estate, 72 N.Y.S.2d 636, 637 (Sur.Ct.1946).
33 Matter of Estate of Webster, 214 Ill.App.3d 1014, 574 N.E.2d 245 (1st D 1991).
34 Webster at 1020, 574 N.E.2d at 250 citing, Sloan v. Sloan, 184 Ill. 579, 56 N.E. 952 (1900) and Fern v. Postlewaite, 240 Ill.626, 88 N.E. 1057 (1909).
35 755 ILCS 5/4-6.
36 Webster, at 1020, 574 N.E.2d at 250-251.
37 See note 35.
38 Sheperd v. Yokum, 233 Ill.328, 154 N.E.2d 156 (1926).
39 In the Matter of the Estate of Haines, 51 Ill.App.3d 163, 169, 366 N.E.2d 548, 552-553 (1st D 1977), citing, Both v. Nelson, 31 Ill.2d 511, 513, 202 N.E.2d 494, 496 (1964), citing Brownlie v. Brownlie, 357 Ill.117, 191 N.E. 268 (——).
40 In re the Estate of Marucci, 54 Ill.2d266, 296 N.E.2d 849 (1973).
41 Estate of Haines, at 168, 366 N.E.2d at 551. See also, 755 ILCS 5/8-1 et. seq.
42 In re Estate of Ragen, 96 Ill.App.3d 1035, 422 N.E.2d 179 (1st D 1981) citing Sheperd v. Yokum, 232 Ill.328, 154 N.E. 156 (1926).
43 See, e.g., Spangler v. Bell, 390 Ill. 152, 60 N.E.2d 864 (1945). Nor is it required that a will be notarized. See, e.g., In re Estate of Koziol, 236 Ill.App.3d 468, 603 N.E.2d 60 (1st D 1992).
44 See, e.g., Kahn, How Important is the Attestation Clause in a Will? 40 Ill. Bar J. 181 (March, 1951).
46 755 ILCS 5/6-21.
47 Section 5/6-21excludes the use of the attesting witness clause and witness affidavits by reference to 755 ILCS 5/6-4: .
48 In re Estate of Carroll, supra, note 20 (forgetting witnesses); In re Estate of Chelbos, 194 Ill.App.3d 46, 550 N.E.2d 1069 (1st D 1990) (equivocating witnesses); In re Estate of Koziol, 236 Ill.App.3d 468, 603 N.E.2d 60 (1st D 1992) (recanting witnesses). C.f., In re Estate of Lynch, 103 Ill.App.3d 506, 431 N.E.2d 734 (3rd D 1982). ("[Section 6-21] of the Probate Act requires oral testimony and forbids reliance upon an attestation clause... ").
49 Ruffing v. Glissendorf, 41 Ill.2d 412, 243 N.E.2d 236 (1969).
50 Id. citing Stuke v. Glaser, 223 Ill.316, 320, 79 N.E. 105, 107 (1906).
51 Id. citing In re Estate of Weedman, 254 Ill. 504, 98 N.E. 156, Sheperd, supra, note 38.
52 Sheperd, 154 N.E. at 159, citing Buerger v. Buerger, 317 Ill.401, 148 N.E.274 (1925).
54 In re Estate of Ragen, supra, note 39.
55 Id. In accord, McClallen v. Village of Morton, 21 Ill.2d 374, 172 N.E.2d 763 (1961) (Upholding trial court’s refusal to admit will based upon testimony of handwriting expert showing will was forged.)
56 See, e.g., In the Matter of the Estate of Jaeger, 16 Ill.App.3d 872, 307 N.E.2d 202 (5th D 1974).
Lawrence P. Devens is a solo practitioner who also provides contract services in areas of probate, medical malpractice and personal injury research and litigation. firstname.lastname@example.org