The Illinois Appellate Court has affirmed a decision by a Cook County probate judge regarding the admission of a will. Jozef Opiela died in January 1975. He purportedly left a will dated March 1972, as well as a codicil to the will that was dated August 1972. Under the terms of the will, Opiela left all of his property to his son, Edward. The codicil made it clear that Opiela’s other heirs were disinherited. Edward Opiela died in June 2003 and was survived by his son, Richard. Richard petitioned the court to admit the will and codicil to probate in an action brought in April 2007.
At the trial level, the probate judge held an evidentiary hearing concerning the will. The sole witness to testify was Richard McQueen, whose mother was a friend of Richard Opiela’s mother and who had known the decedent. At the hearing, McQueen testified that on the day the will was executed, he gave Jozef a ride to an attorney’s office where Jozef told him he had “some papers” to take care of. At the time, McQueen was 20 years old and believed Jozef to have been about 70. McQueen drove Jozef to the office and entered with him.
At the attorney’s office, Eugenie Wnorowski and her colleague, both of whom are dead, were present.
Wnorowski presented Jozef with a document and translated it into Polish. McQueen, who also was fluent in Polish, knew from this discussion that the document being discussed was a will. McQueen identified a certified copy of the will as the one similar to the document that was presented to Jozef. On that document were the purported signatures of Wnorowski and the colleague, who had witnessed Jozef’s mark. At the probate hearing, McQueen was not asked to identify the signatures and did not testify to the signing of the codicil. He did testify to Jozef’s apparent competency and understanding of that procedure.
At the end of the hearing, the probate judge ruled that the will and codicil would not be admitted to probate because the attestation clause did not contain a provision stating that the attesting witnesses believed the testator to be of sound mind and memory. An appeal was taken.
On appeal, the Illinois Appellate Court stated that it would reverse a trial court’s decision on admission of a will to probate only when that decision was contrary to the manifest weight of the evidence. Richard argued that the absence of a statement concerning the testator’s sound mind and memory from the attestation clause may not be fatal to admission of the will. This was argued that under the Illinois Probate Act, a proponent may also introduce any other competent evidence to establish a will. The court agreed and noted that other evidence cannot substitute for the requirement to establish a will. Since there was no evidence to back up the genuineness of the signatures of the attesting witnesses, and there was no proof offered that Jozef was competent, the will and codicil could not be admitted to probate. Therefore, the appellate court found that the probate judge’s order was proper in denying the will and its codicil into probate.
In re Estate of Jozef Opiela, deceased v. Donald Opiela, et al., 2012 IL App. (1st) 113320-U.
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