Mary Dicks died on Sept. 25, 2012. Her granddaughter, Jennifer Barber, was her closest living relative and her only heir. Barber claimed that Dicks died intestate and filed a petition to be named administrator of her estate.
However, Allison Ferconio, who was Dicks’s niece, filed a will with the Circuit Court. The will was dated May 23, 2012 naming Ferconio as executor and left Dicks’s estate to six individuals. On that list was Ferconio, but not Barber. The will was signed and witnessed by Richard Tebik and Robert Abraham who signed a standard attestation clause.
The attestation clause indicated that the will was signed in the presence of each of the two witnesses. There was a second attestation clause, claiming that Dicks signed the document as her will and acknowledged her signature in the presence of both witnesses. The court admitted the will and named Ferconio as her executor. Barber filed a request for a formal proof of will seeking the testimony of Tebik and Abraham.
Tebik, the attorney who prepared the will, testified that he prepared the will, read it to Dicks and Dicks approved it and signed it in his presence alone and that he in turn signed the will in Dicks’s presence, but not in Abraham’s. Abraham, a neighbor of Dicks, testified that he had been called in to sign the papers but did not read the entire document although he testified that Dicks told him the document was her will.
Abraham signed it, but not in the presence of Tebik. According to his testimony, there were “no other signatures, no other writings.” The circuit court judge did not find a problem with the fact that Tebik and Abraham did not witness each other’s signatures, but instead took the issue with Abraham’s assertion that the “page was blank when he affixed his signature to it.”
That was significant because Abraham, as a witness, was required to acknowledge the signature of Dicks. The circuit court therefore denied the confirmation of the will and vacated the will admitting it to probate. Ferconio appealed. The appellate court acknowledged that the statutory requirements of due execution of the will are mandatory and that the proponent of a will doesn’t need to prove general validity, just that the essential elements of the statute are met.
According to the appellate court, if the attestation clause is “in due form” and the signatures are genuine, it is prima facie evidence of due execution and not overcome by “the mere fact that the subscribing witnesses testify they failed to notice whether the will was signed or not, and cannot remember whether they saw the signature.” This prima facie assumption of due execution can only be overcome by a showing of “noncompliance with all the statutory requisites.”
Barber argued that because Abraham did not see Dicks’s signature, he failed to witness her will. The statutory reasons for seeing Dicks’s signature is to prove that the document signed is intended as the will. The court found that Dicks acknowledging it as her will to Abraham was sufficient to meet the requirement.
The court found no evidence supporting Barber’s claim that the will was invalid. The appellate court, accordingly, reversed the decision of the circuit court, remanding the case with orders to admit the will to probate and making Ferconio the executor of the estate.
In re Estate of Mary Dicks, 2014 IL App (1st) 132809-U (May 12, 2014).
Kreisman Law Offices has been handling trial matters for individuals and families for businesses matters, probate matters and injury cases for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Libertyville, Western Springs, Winthrop Harbor, Wheaton, Aurora, St. Charles, Geneva, Gurnee, Kenilworth, Chicago (Logan Square, Wicker Park, Lakeview, Hyde Park, Chinatown, Lincoln Square), Mt. Prospect and Elmhurst, Ill.
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