2015 IL App (2d) 140706
Ill. App. Ct.2015Background
- Decedent Tyler B. Brewer died July 17, 2013; his 1999 will was admitted to probate and Todney Brewer named executor.
- Hannah Brewer (heir) filed a petition (Mar. 11, 2014) contesting the will, alleging Tyler cancelled the will on Sept. 22, 2012 by marking and signing a copy and stating the will was void and he was drafting a new one.
- Exhibit A attached to the petition was an unsigned, unattested copy with markings and initials "TB." Hannah alleged the original was lost or not in Tyler’s possession.
- Todney moved to dismiss under section 2-615, arguing (1) markings on the copy were insufficient to cancel the will and (2) cancellation of a copy cannot revoke the original as a matter of law.
- The trial court granted dismissal, holding markings on an unattested copy are insufficient to cancel an original will; Hannah appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether revocation by cancelling a copy can revoke the original will | Hannah: markings on the copy (with testator’s initials and statement) manifest intent to revoke original, especially if original believed lost | Todney: revocation must be performed on an actual "will"; cancelling a copy (unsigned/unattested) cannot revoke the original as a matter of law | Revocation by cancelling an unsigned, unattested copy is ineffective; dismissal affirmed |
| Whether petition pled sufficient facts to state revocation under Probate Act §4-7 | Hannah: pleadings allege sufficient facts (intent, markings, original not in possession) to survive 2-615 | Todney: petition fails to allege revocatory act upon a statutory "will" as required by §4-7 | Petition legally insufficient; no set of facts alleged would constitute statutory revocation |
Key Cases Cited
- In re Estate of Holmberg, 400 Ill. 366 (1948) (cancellation of one duplicate original cancels the other duplicate original)
- In re Will of Barrie, 393 Ill. 111 (1946) (marks on an original will can manifest revocation)
- In re Estate of Wedeberg, 226 Ill. App. 3d 948 (1992) (handwritten name alone did not satisfy statutory signature requirement)
- In re Estate of Lum, 298 Ill. App. 3d 791 (1998) (unwitnessed instrument fails statutory attestation requirement)
- Gushwa v. Hunt, 197 P.3d 1 (N.M. 2008) (writing "revoked" on a photocopy is ineffective to revoke the original)
- In re Estate of Tolin, 622 So. 2d 988 (Fla. 1993) (destruction of a copy of a codicil, not the original, does not revoke it)
- In re Krieger, 595 N.Y.S.2d 272 (N.Y. App. Div. 1993) (physical destruction of an unexecuted/conformed copy is ineffectual for revocation)
- Estate of Stanton, 472 N.W.2d 741 (N.D. 1991) (destruction of an unexecuted/conformed copy cannot revoke the original)