attestation clause in Illinois

1974A. Yes.” 2 As stated in the early case of Gould v. Chicago Theological Seminary, 189 Ill. 282 , 289: “ ‘The precise force which should be accorded to a full attestation clause regularly authenticated is not very clearly defined in the cases, but they all agree in the conclusion that it is entitled to great weight in the determination of the question of fact involved.”'

1915(Gould v. Chicago Theological Seminary, 189 Ill. 282 .) In the case just cited, the will, including the attestation clause, was in the handwriting of the testator.

1992If it is merely doubtful from the evidence whether the requirements have been complied with, the presumption arising from the attestation clause is not overcome.” Conway, 14 Ill. 2d at 466-67 , 153 N.E.2d at 14 .

1992If it is merely doubtful from the evidence whether the requirements have been complied with, the presumption arising from the attestation clause is not overcome.” Conway, 14 Ill. 2d at 466-67 , 153 N.E.2d at 14 .

1974Thus, even if his recollection is faded, the attestation clause speaks authoritatively for his actions. 2 See also, Brelie v. Wilkie, 373 Ill. 409, 412 , 26 N.E.2d 475 , where it was stated:.

1974Thus, even if his recollection is faded, the attestation clause speaks authoritatively for his actions. 2 See also, Brelie v. Wilkie, 373 Ill. 409, 412 , 26 N.E.2d 475 , where it was stated:.

1940(Hobart v. Hobart, 154 Ill. 610 .) Where the attestation clause is in due form and the will bears the genuine signatures of the testatrix and the subscribing witnesses, it is prima facie evidence of the due execution of the will; and this prima facie case is 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.

1931(Robinson v. Brewster, supra; 1 Redfield on Wills, 132.) In case of the death of the witnesses to a will which on the face thereof appears to have been regularly executed and is shown to bear the genuine signatures of the testator and the witnesses, compliance with the statutory requirement is to be presumed, in the absence of express recitals to that effect. — 1 Jarman on Wills, pp. 219, 220.” In Hobart v. Hobart, supra, the attestation clause was: “Written, signed and sealed in the presence of Mordecia Tamling, Normal, McLean Co., Ill. — Betsey A. Tamling, Normal, McLean Co., Ill.” The objec

1918(Thompson v. Owen, 174 Ill. 229 .) In this last case numerous authorities are cited and reviewed to the effect, substantially, that the law for wise and obvious reasons requires wills to be executed with such precautions as will usually guard against fraud; that when the attestation clause is complete and the signature genuine and the circumstances corroborative of due execution, and there is no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect th

1915Tt seems to be well settled that in the absence of all proof, the witnesses being deceased or not in a condition to give testimony, the presumption omnia rite acta will arise, as in ordinary cases. * * * And where the attestation clause contains all the particulars of a good execution it will always be prima facie evidence of due execution, and will often prevail' over the testimony of witnesses who give evidence tending to show that some of the requisites were omitted.’—1 Redfield on Wills,—4th ed.—238; Thompson v. Owen, 174 Ill. 229 .” The facts in In re will of Barry, 219 Ill. 391 , are ver

1970(See, e.g., Conway v. Conway, 14 Ill.2d 461 ; Hart v. Hart, 290 Ill. 476 .) Here the testimony of the witness was contradicted by the attestation clause which she signed, and it was so internally inconsistent as not to carry conviction.” In Estate of Willavize, 21 Ill.2d 40 , it was contended that proof of the sound mind and memory of the testator was lacking because one of the attesting witnesses had previously given the statement that she did not believe the testator at the time of executing the will was of sound mind.

1967(Thompson v. Karme, 268 Ill 168; Rupp v. Jones, supra.) The testimony of the subscribing witness who seeks to impeach the will should be received with caution, particularly where the weight of the evidence is against her testimony, which is conflicting in itself and positively contradicted by two other witnesses who appear to be credible witnesses.” In Hart v. Hart, 290 Ill 476, 125 NE 366 , where an attorney who had signed an attestation clause stating a belief in the soundness of the mind of the testator and later expressed an opinion that the testator was under the influence of sedatives an

1945(Landry v. Morris, 325 Ill. 201 ; Harris v. Etienne, 315 Ill. 540 .) Under some circumstances, such an attestation clause has been held to prevail over the contradictory testimony of a subscribing witness.

1930It has been held by this court that in order to admit a will to probate these statutory requirements must be complied with. ( Harris v. Etienne , 315 Ill. 540 *Page 129 .) In construing this section it has been held that it is not necessary that the attesting witnesses see the signature of the testator upon the face of the will, or that an acknowledgment of the signature be made to them by the testator, or that they know that the instrument is a will, but the statutory requirements are satisfied if the testator acknowledges the execution of the will. ( Thornton v. Herndon , 314 Ill. 360 ; Jenk

2016Specifically, petitioner argues that "[t]he disqualified petitions substantially complied with the requirements of the circulator's attestation clause under 10 ILCS 5/7-10." Because neither the circulator affidavit nor the testimony of Amy and/or petitioner reveal who the circulator of the petitions was, we uphold the Board's decision disallowing the petitions. 6 ¶ 11 "Where, as here, judicial review of an electoral board's decision is sought pursuant to *** the Election Code [citation], the proceeding is in the nature of administrative review." Jackson v. Board of Election Commissioners, 2012

2016Specifically, petitioner argues that "[t]he disqualified petitions substantially complied with the requirements of the circulator's attestation clause under 10 ILCS 5/7-10." Because neither the circulator affidavit nor the testimony of Amy and/or petitioner reveal who the circulator of the petitions was, we uphold the Board's decision disallowing the petitions. 6 ¶ 11 "Where, as here, judicial review of an electoral board's decision is sought pursuant to *** the Election Code [citation], the proceeding is in the nature of administrative review." Jackson v. Board of Election Commissioners, 2012

1974The court, citing Mead, supra, and Loomis v. Campbell, 333 Ill.App. 617 , 78 N.E.2d 143 , affirmed the trial court’s admittance of the wUl to probate.

1965In Loomis v. Campbell, 333 Ill App 617, 78 NE2d 143 , the court allowed a holographic will without an attestation clause to be admitted to probate, stating at pages 622, 623: It is settled law that execution of an instrument may be sufficiently proved where one witness testifies positively to the requisites of execution, and the other witness does not recollect or denies compliance with the statutory requirements.

1974The majority interprets the case of In re Estate of Willavize, 21 Ill.2d 40 , to mean that where a will does not contain a complete attestation clause, there is no presumption in favor of its proper execution.

1974App.2d 134 , 223 N.E.2d 466 . • 5 In the instant case, where the purported will does not contain an attestation clause, the proponent of the will has the burden of proving its proper execution by other evidence. ( In re Estate of Willavize, 21 Ill.2d 40 , 171 N.E.2d 21 ; In re Estate of Thomas, 6 Ill.

1931(Robinson v. Brewster, supra; 1 Redfield on Wills, 132.) In case of the death of the witnesses to a will which on the face thereof appears to have been regularly executed and is shown to bear the genuine signatures of the testator and the witnesses, compliance with the statutory requirement is to be presumed, in the absence of express recitals to that effect. — 1 Jarman on Wills, pp. 219, 220.” In Hobart v. Hobart, supra, the attestation clause was: “Written, signed and sealed in the presence of Mordecia Tamling, Normal, McLean Co., Ill. — Betsey A. Tamling, Normal, McLean Co., Ill.” The objec

1931(Robinson v. Brewster, 140 Ill. 649 .) The attestation clause may consist of a single word, as ‘witness/ ‘attest’ or ‘test/ or there may be no words at all.

1945(Landry v. Morris, 325 Ill. 201 ; Harris v. Etienne, 315 Ill. 540 .) Under some circumstances, such an attestation clause has been held to prevail over the contradictory testimony of a subscribing witness.

1945(Landry v. Morris, 325 Ill. 201 .) An attestation clause reciting due execution of a will is entitled to weight in determining whether the will has been legally executed, but it is not, however, conclusive.

1908(Gould v. Theological Seminary, 189 Ill. 282 ; Mead v. Presbyterian Church, supra.) And in the Gould case we quoted with approval from Orser v. Orser, 24 N. Y. 51 , that “a will duly attested upon its face, the signatures to which are all genuine, may be admitted to probate although none of the subscribing witnesses are able to swear, from recollection, that the formalities required by the statute were complied with, and even although some of them should swear positively that they were not, if the other evidence warrants the inference that they were.” We also quoted with approval in the Gould

1901Matter of Will of Kellum, 52 N. Y. 517 , it was said (p. 519): “If the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, and no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect the execution or what took place at the time.

1907In Abbott v. Abbott, 41 Mich. 540 , which was approved in the Thompson and Gould cases, supra, and where one of the attesting witnesses failed to remember and could not testify that all the formal requisites required by the statute to be observed had been complied with, the court said (p. 542): “But we know of no rule of law which makes the probate of a will depend upon the recollection or even the veracity of a subscribing witness.

1901“It seems to be well settled that, in the absence of all proof, the witnesses being deceased or not in a condition to give testimony, the presumption omnia rite acta will arise, as- in ordinary cases. * * "x" And where the attestation clause contains all the particulars of a good execution it will always be prima facie evidence of due execution, and will often prevail over the testimony of witnesses who give evidence tending to show that some of the requisites were omitted.” 1 Redfield on Wills,—4th ed.-—288; Thompson v. Owen, supra. In Abbott v. Abbott, 41 Mich. 540 , it is said (p. 542): “We

1998Jaeger, 16 Ill.App.3d at 875 , 307 N.E.2d 202 .

1998Jaeger, 16 Ill.

1992As indications of that intent, the court noted (1) the statement in the attestation clause that the decedent had declared the instrument to be her will; (2) the title stating “ ‘LAST WILL AND TESTAMENT’ ”; (3) the direction to pay debts and funeral expenses; (4) the provision for gifts; (5) the naming of an executor; and (6) a provision prior to the attestation clause wherein the form stated “ ‘IN WITNESS WHEREOF I have hereunto set my hand and seal’ ” (Carroll, 192 Ill.

1992The other case relied upon by the proponents of the 1988 instrument is In re Estate of Carroll (1989), 192 Ill.

1992The supreme court reversed, ruling that the witness, who also had served as a notary public and who had attached his jurat reciting that the instrument was subscribed and sworn before him, should have refused to sign the attestation clause if the testator was not then present: “While notarizing can lend no efficacy to a will nor detract from its validity, Baska [the notary] undoubtedly understood that the jurat of a notary public is for the purpose of authenticating or verifying the statements in the instrument to which it is attached.” Szarat, 365 Ill. at 327 .

1945(In re Estate of Elkerton, 380 Ill. 394 ; Szarat v. Schuerr, 365 Ill. 323 .) The rule is that the testimony of subscribing witnesses impeaching a will is to be viewed with suspicion and received with caution.

1990(In re Estate of Thomas, 6 Ill.

1974App.2d 134 , 223 N.E.2d 466 . • 5 In the instant case, where the purported will does not contain an attestation clause, the proponent of the will has the burden of proving its proper execution by other evidence. ( In re Estate of Willavize, 21 Ill.2d 40 , 171 N.E.2d 21 ; In re Estate of Thomas, 6 Ill.

1984App.2d 464 , 205 N.E.2d 265 , were nearly identical to those of the instant case; that defendant discovered the will in its mutilated condition months before decedent's death but never informed anyone of the discovery until after decedent died; that decedent had been instructed as to how to revoke the will, and the mere tearing of the attestation clause was contrary to those instructions; that decedent was expressly asked if he wished to change his will, but he stated he did not want to change it; that, based on these observations, it appeared that possession of the will was in defendant at th

1984App. 2d 464 , 205 N.E.2d 265 , were nearly identical to those of the instant case; that defendant discovered the will in its mutilated condition months before decedent’s death but never informed anyone of the discovery until after decedent died; that decedent had been instructed as to how to revoke the will, and the mere tearing of the attestation clause was contrary to those instructions; that decedent was expressly asked if he wished to change his will, but he stated he did not want to change it; that, based on these observations, it appeared that possession of the will was in defendant at t

1974In re Estate of Willavize, 21 Ill.2d 40 , 171 N.E.2d 21 ; In re Estate of Elkerton, 380 Ill. 394 , 44 N.E.2d 148 ; In re Estate of Russell, 130 Ill.App.2d 839 , 264 N.E. 2d 269 ; In re Estate of Hart, 79 Ill.App.2d 134 , 223 N.E.2d 466 .

1974App.2d 134 , 223 N.E.2d 466 . • 5 In the instant case, where the purported will does not contain an attestation clause, the proponent of the will has the burden of proving its proper execution by other evidence. ( In re Estate of Willavize, 21 Ill.2d 40 , 171 N.E.2d 21 ; In re Estate of Thomas, 6 Ill.

1974In re Estate of Willavize, 21 Ill.2d 40 , 171 N.E.2d 21 ; In re Estate of Elkerton, 380 Ill. 394 , 44 N.E.2d 148 ; In re Estate of Russell, 130 Ill.App.2d 839 , 264 N.E. 2d 269 ; In re Estate of Hart, 79 Ill.App.2d 134 , 223 N.E.2d 466 .

1974In re Estate of Willavize, 21 Ill.2d 40 , 171 N.E.2d 21 ; In re Estate of Elkerton, 380 Ill. 394 , 44 N.E.2d 148 ; In re Estate of Russell, 130 Ill.App.2d 839 , 264 N.E. 2d 269 ; In re Estate of Hart, 79 Ill.App.2d 134 , 223 N.E.2d 466 .

1970(Jenkins v. White, 298 Ill. 502 ; Estate of Koss, supra; In re Estate of Hart, 79 Ill.App.2d 134 .) As pointed out in Estate of Hart, the statute makes no distinction as to the proof of the three requirements for admission to probate of the will.

1939In Jenkins v. White, 298 Ill. 502 , it was held that the testimony of a subscribing witness who seeks to impeach the will should be received with caution when his testimony is conflicting, in itself, arid is positively contradicted by other witnesses who appear to be credible.

1967(Ill Rev Stats sec 2, chap 148, entitled ‘Wills.’) But it is also expressly provided by section 13 of the same chapter, that if the probate of any will shall have been refused by any county court and an appeal shall have been taken from such order of the county court to the circuit court, it shall be lawful for the party seeking probate of such will to support the same, on the hearing in the circuit court, by any evidence competent to establish a will in chancery.” (Emphasis supplied.) The same principles of the then existing differences from an appeal to the circuit court from an order granti

1908(Gould v. Theological Seminary, 189 Ill. 282 ; Mead v. Presbyterian Church, supra.) And in the Gould case we quoted with approval from Orser v. Orser, 24 N. Y. 51 , that “a will duly attested upon its face, the signatures to which are all genuine, may be admitted to probate although none of the subscribing witnesses are able to swear, from recollection, that the formalities required by the statute were complied with, and even although some of them should swear positively that they were not, if the other evidence warrants the inference that they were.” We also quoted with approval in the Gould

1945(Schofield v. Thomas, 236 Ill. 417 ; Calkins v. Calkins, 216 Ill. 458 .) An attestation clause reciting due execution of a will, while entitled to weight in determining whether a will has been legally executed, is not, however, conclusive.

1923“It is not necessary, however, that a formal attestation clause reciting all the facts necessary to a correct execution of the will be added to the instrument to make it a valid will.” (Schofield v. Thomas, 236 Ill. 417 ; Mead v. Presbyterian Church, 229 id. 526 .) “It has been repeatedly held by this court that on the hearing in the circuit court on the question of the due execution of the instrument involved, the question of fact presented is determined by the same rules and presumptions which control the trial of other questions of fact, and that the instrument should be admitted to record

1939Where a witness who has subscribed to a will stating in the attestation clause all the facts required for a proper attesting of the will testifies on the hearing to a contrary state of facts, he thereby assumes an attitude which is not only inconsistent with the position that he has voluntarily taken but one that may well be argued to be suggestive of fraud and double dealing.” In Beck v. Lash, 303 Ill. 549 , this court stated that an attesting witness cannot be too severely criticised for signing an attestation clause and then swearing to the contrary when he is produced as a witness in court

1937Where a witness who has subscribed to a will stating in the attestation clause all the facts required for a proper attesting of the will testifies on the hearing to a contrary state of facts, he thereby assumes an attitude which is not only inconsistent with the position that he has voluntarily taken but one that may well be argued to be suggestive of fraud and double dealing.” In Beck v. Lash, 303 Ill. 549 , we said that an attesting witness cannot be too severely criticised for signing an attesting clause like the one in this case and then swearing to the contrary when he is produced as a wi

1931As to him it was said, “It is to be presumed that he duly attested the will in the presence of the testator,” quoting from Nickerson v. Buck, 12 Cush. 332 : “As regards this witness, if nothing appears in other parts of the evidence to control the presumption resulting from proof of his handwriting, it may be taken that as to his attestation it was properly made to the signature by the testator.” In Robinson v. Brewster, 140 Ill. 649 , the execution and attestation of the will were in the following form: “Witness my hand and seal this 7th day of May, 1877. his Attest: • Joseph X Robinson.

1867This view of a similar question is taken in Nickerson v. Buck, 12 Cush. 332 ; Peck v. Carey, 27 N. Y. 9 , and Nelson v. McGifford, 3 Barb.

1930It has been held by this court that in order to admit a will to probate these statutory requirements must be complied with. ( Harris v. Etienne , 315 Ill. 540 *Page 129 .) In construing this section it has been held that it is not necessary that the attesting witnesses see the signature of the testator upon the face of the will, or that an acknowledgment of the signature be made to them by the testator, or that they know that the instrument is a will, but the statutory requirements are satisfied if the testator acknowledges the execution of the will. ( Thornton v. Herndon , 314 Ill. 360 ; Jenk

1930It has been held by this court that in order to admit a will to probate these statutory requirements must be complied with. ( Harris v. Etienne , 315 Ill. 540 *Page 129 .) In construing this section it has been held that it is not necessary that the attesting witnesses see the signature of the testator upon the face of the will, or that an acknowledgment of the signature be made to them by the testator, or that they know that the instrument is a will, but the statutory requirements are satisfied if the testator acknowledges the execution of the will. ( Thornton v. Herndon , 314 Ill. 360 ; Jenk

1930The attestation clause was properly received in evidence upon the hearing in the circuit court (Chandler v. Fisher, 290' Ill. 440; In re Will of Porter, 309 Ill. 220 ; Thornton v. Herndon, 314 Ill. 360 ) and is some evidence tending to show due attestation.

1923In re Will of Porter, supra; Mead v. Presbyterian Church, supra. Taking the attestation clause as a whole, together with the proof offered as to the genuineness of the signatures of the testator and the witnesses, we think there is sufficient proof that the testator acknowledged the instrument as his act and deed.

1921(Thompson v. Karme, 268 Ill. 168 ; Rupp v. Jones, supra.) The testimony of the subscribing witness who seeks to impeach the will should be received with caution, particularly where the weight of the evidence is against her testimony, which is conflicting in itself and positively contradicted by two other witnesses who appear to be credible witnesses.

1918Tt seems to be well settled that in the absence of all proof, the witnesses being deceased or not in a condition to give testimony, the presumption omnia rite acta will arise, as in ordinary cases. * * * And where the attestation clause contains all the particulars of a good execution it will always be prima facie evidence of due execution, and will often prevail over the testimony of witnesses who give evidence tending to show that some of the requisites were omitted.’—(1 Redfield on Wills,—4th ed.—238.)” This same doctrine of Redfield was quoted with approval by this court in the recent case

1918In In re Estate of Kohley, 200 Ill. 189 , when one witness (Judson) was called to testify he stated that he signed the attestation clause but that the testatrix did not sign the will in his presence and that he did not see her sign it, and that she did not in any manner, by word or act, acknowledge the paper to be her will, act or deed; that he could not recollect any conversation he had with the testatrix or that she had said anything; that he was only in the' room long enough to sign his name and then turned around and walked out.

1917In re Estate of Kohley, 200 Ill. 189 .