In Re Estate of Carroll

548 N.E.2d 650, 192 Ill. App. 3d 202, 139 Ill. Dec. 265, 1989 Ill. App. LEXIS 1848
CourtAppellate Court of Illinois
DecidedDecember 13, 1989
Docket1-87-3073
StatusPublished
Cited by5 cases

This text of 548 N.E.2d 650 (In Re Estate of Carroll) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Estate of Carroll, 548 N.E.2d 650, 192 Ill. App. 3d 202, 139 Ill. Dec. 265, 1989 Ill. App. LEXIS 1848 (Ill. Ct. App. 1989).

Opinion

JUSTICE RIZZI

delivered the opinion of the court:

Executor-appellant, Richard C. Carroll (Carroll), appeals from the circuit court’s order denying the deceased’s will to probate. On appeal, Carroll argues that the court improperly denied admission of the will to probate. We reverse and remand with instructions.

Genevieve B. Carroll died on November 19, 1984. Her son, Carroll, petitioned the circuit court of Cook County for letters testamentary and to probate the will. On January 15, 1987, the court admitted the will to probate and appointed Carroll the independent executor of her estate. The court, on its own motion, after noting that the deceased’s signature was not at the end of the will, appointed an attorney as guardian ad litem for Timothy Carroll, the minor grandson of the decedent. Thereafter, the guardian ad litem filed a petition requesting a formal proof of the will.

The decedent’s will, dated June 10, 1983, consists of a standard preprinted form entitled “LAST WILL AND TESTAMENT.” The purported signature of Genevieve B. Carroll appears on the first line in a sentence which declares the document to be her last will and testament. The form does not include instructions or language indicating a signature line. Rather, the signature line is designated by the word “Seal.”

Three witnesses signed the will. At the time of the hearing on the petition, one witness, Rose Steeman, was deceased. The other two' witnesses, Hiltrude May Kuhlman and Mildred Gibbons, were not ambulatory, and on June 12, 1987, their evidence depositions were taken at their nursing home.

During her deposition, Ms. Kuhlman recognized her signature and testified that she had signed the will. She also testified that her address was written in her handwriting. Ms. Kuhlmann acknowledged that the other witnesses were her friends, but had no recollection of the circumstances under which she had signed the will. Similarly, the other witness, Mildred Heiden Gibbons, Genevieve Carroll’s former roommate at the nursing home, acknowledged that she had signed the will, but could not remember the surrounding circumstances. Both witnesses, however, testified that they would not have signed the attestation clause if the allegations therein were untrue.

The will’s attestation clause states the following:

“This instrument was, on the date thereof, signed, sealed, published and declared by the Testator as and for her Last Will and Testament, in our presence, who at her request and in her presence and in the presence of each of us, have subscribed our names hereto as witnesses thereof. And do hereby certify that at the time of the execution thereof the Testator was of sound and disposing mind and memory.”

The Probate Act of 1975 provides:

“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.” Ill. Rev. Stat. 1985, ch. 1101/2, par. 4—3.

The last will and testament in question contains the purported signature of Genevieve B. Carroll in the first line of the document as follows. “I, Genevieve B Carroll, of Darien in the State of Illinois, declare this to be my last WILL and TESTAMENT, and I revoke all Wills and Codicils heretofore made by me.”

The Probate Act does not require that the testator’s signature appear at the end of the will. (Ill. Rev. Stat. 1985, ch. 1101/2, par. 4—3.) In fact, it is immaterial where in the will the signature of the testator is placed, if it was placed there with the intention of authenticating the instrument. (Kolowski v. Fausz (1902), 103 Ill. App. 528, 533.) According to the attestation clause, the testator signed, published and declared the instrument as her last will and testament. The deceased’s intention also may be gleamed from the title, “LAST WILL AND TESTAMENT,” and language of the document following her signature stating that she declared this to be her last will and testament.

This standard will form first orders and directs the executor to pay all just debts and funeral expenses as soon after her death as practicable. The form also contains the preprinted language, “SECOND: I give, devise and bequeath” followed by blank lines. Herein, the following is written in cursive handwriting: “to my beloved son Richard C. Carroll also my Executor all my worldly possessions, my stocks, certificate of deposits [sic], and any other investment and all money. To my dear friend, Gerry Glatz I leave my diamond ring.”

The form document provides “LASTLY: I hereby nominate and appoint_as Executor of this, my Last Will and Testament, and I direct that my Executor shall be required to furnish a surety bond to act as such Executor.” In this section, the deceased named Richard C. Carroll as executor. Preceding the attestation clause, the printed language concludes: “IN WITNESS WHEREOF I have hereunto set my hand and seal this __day of _19__” The deceased inserted the date June 10 and the year 83. All of the above suggest that the deceased intended for her signature at the beginning of the will to be her authenticating signature.

Section 6 — 4 of the Probate Act (Ill. Rev. Stat. 1985, ch. lHWa, par. 6 — 4), entitled “Admission of will to probate — Testimony or affidavit of witnesses,” states as follows:

“(a) When each of 2 attesting witnesses to a will states that (1) he was present and saw the testator *** sign the will in the presence of the witness or the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will, the execution of the will is sufficiently proved to admit it to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will. *** If the proponent establishes the will by sufficient competent evidence, it shall be admitted to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will.
(b) The statements of a witness to prove the will under subsection 6 — 4(a) may be made by (1) testimony before the court, (2) an attestation clause signed by the witness and forming a part of or attached to the will or (3) an affidavit which is signed by the witness at or after the time of attestation and which forms part of the will or is attached to the will or to an accurate facsimile of the will.” (Ill. Rev. Stat. 1985, ch. llOVz, par. 6 — 4.)

It is well settled that the statutory requirements of due execution of a will are mandatory and it is indispensable that these provisions be complied with in order to make a valid will. Brelie v. Wilkie (1940), 373 Ill. 409, 411, 26 N.E.2d 475, 476.

In the present case, three witnesses signed their signatures and addresses below the attestation clause.

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Cite This Page — Counsel Stack

Bluebook (online)
548 N.E.2d 650, 192 Ill. App. 3d 202, 139 Ill. Dec. 265, 1989 Ill. App. LEXIS 1848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-carroll-illappct-1989.