Illinois Appellate Court Finds That an Inadmissible Will by Decedent’s Clear Intent Revokes Earlier Will

Paul Oleksiuk’s legacy included an intricate probate puzzle. His 2012 will revoked his 2011 will. He died in 2014 before finalizing a revision to a 2012 will. However, on June 9, 2017, a Cook County judge ruled that the 2012 will didn’t qualify for admission to probate because it wasn’t notarized.

Inasmuch as the petitioners, Oleksiuk’s sister and nephew, could not find an original copy of the 2011 will, they tried again, petitioning for admission of a copy of the 2011 will.

Attacking the second petition, with a combined motion to dismiss based on Sections 2-615 and 2-619 of the Illinois Code of Civil Procedure, his widow, Irena Oleksiuk, argued that the revocation clause in the defective 2012 will blocked the petitioners from rebutting the presumption that he intended to revoke the missing 2011 will.

The petitioners’ claim tried to rebut the presumption of revocation because (1) Oleksiuk continued to have a loving relationship with the beneficiaries of the 2011 testament [will] and (2) circumstantial evidence supported an inference that his widow, Irena, destroyed the original copy of the 2011 will.

The petitioners also argued that the revocation clause in the defective 2012 will was ineffective based on a case that said: “No will is legally effective until it has been admitted to probate. No will can be shown to revoke a previous will until the subsequent will has been admitted to probate.” In re Estate of Schumann, 2016 IL App (4^th) 150844.

The trial judge granted Irena’s combined motion. Affirming the Illinois Appellate Court acknowledged that the June 9, 2017, order, which denied probate of the 2012 will, would have prevented the 2012 revocation clause from blocking admission of the original 2011 will. But the petitioners couldn’t find the original copy of the older will, and the revocation clause in the 2012 will “plainly defeats their assertion that decedent had no intent to revoke the 2011 will.”

In this case, the petitioners wanted to admit a copy of a will into probate in lieu of the missing original. The law in Illinois is well-established regarding lost or missing wills and requires the parties seeking to probate a copy of the will to prove that the testator did not intend to revoke the original will. In re Estate of Moos, 414, Ill. 54 (1953).

Irena contended that the petitioners failed to state a claim, thus the Section 2-615 motion to dismiss, because they pled themselves out by attaching a subsequent will which demonstrated decedent’s clear intent to revoke the 2011 will that was at issue.

Petitioners focused on the fact that the decedent had a long history of maintaining his estate plan by way of wills and that denying probate of the will would be contrary to decedent’s testamentary intent. However, determining whether to admit a copy of the will to probate does not require consideration of decedent’s history of maintaining a will.

The court said that if the admission of the 2012 will to probate was unsuccessful, then the 2011 will has not been legally revoked. Accordingly, if the original 2011 will were submitted to probate, the petition to admit the unrevoked will could be sustained. However, here, the parties are not in possession of the original 2011 will. Therefore, the rule that a will’s revocation clause does not take effect until it is successfully probated is irrelevant to the present case and a different analysis is required.

According to Illinois law, an earlier will can be revoked by a revocation clause in a later executed will, and other instruments, or by a physical act of destruction by the testator. 755 ILCS 5/4-7. Thus, in a case of a missing original will, courts presume that the testator physically destroyed the original will with the intent to revoke it.

The test for admitting a will copy only requires a showing that decedent did not intend to change his will, even though it is missing. Correspondingly, if a decedent expressed any statement demonstrating an intent to change his will, the will copy cannot be admitted. In this case, the parties in court acknowledged the existence of the 2012 will. The fact that decedent drafted and signed a 2012 will, which departed significantly from the dispositions provided for under the 2011 will, shows that the 2011 will no longer reflected decedent’s testamentary intent.

Decedent clearly intended to revoke the 2011 will and petitioners cannot asset otherwise. The fact that the 2012 will copy was denied admission to probate and was not legally effective has no effect on the expression of decedent’s intent at the time he executed the 2012 will and rejected the terms of the 2011 will.

Furthermore, although there was testimony that decedent, shortly before his death, intended to revoke his 2012 will as well, this does not automatically revive the 2011 will. The 2011 will was not expressly revived as required by statute (755 ILCS 5/4-7(c): “A will which totally revoked in any manner is not revived other than by its re-execution or by an instrument declaring the revival and signed and attested in the manner prescribed by this article for the signing and attestation of a will”), nor did decedent express any interest in reviving the 2011 will.

Accordingly, for the reasons stated, the Illinois Appellate Court affirmed the circuit court’s dismissal of the petition to probate the 2011 will copy.

Van den Heuvel v. Oleksiuk, 2019 IL App (1^st) 173167-U, Sept. 11, 2019.

Kreisman Law Offices has been handling probate litigation, guardianships, jury trials and Illinois and federal appeals for individuals, families and loved ones and businesses for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Morton Grove, Glenview, Northbrook, Glencoe, Winnetka, Wilmette, Evanston, Skokie, Long Grove, Cary, Park Ridge, Lincolnwood, Lincolnshire, Addison, Elmhurst, River Forest, Riverside, Berwyn, Summit, Bedford Park, Palos Heights, Country Club Hills, Hazel Crest, Oak Forest, Matteson, Richton Park, Glenwood, Chicago (East Side, Pullman, Beverly, Roscoe Village, Chicago Lawn, Marquette Park, Garfield Ridge, West Garfield Park, Belmont Gardens, Sheffield Neighbors, Wrightwood Neighbors, Park West, West Lakeview, Bricktown, Ukrainian Village, Noble Square, Fulton River District, Chinatown, Pilsen, Douglas Park, McKinley Park, Bridgeport, Canaryville, West Elsdon, Archer Heights, Gage Park), Waukegan, Cicero, Melrose Park, Oak Brook, Clarendon Hills, Burr Ridge, Palos Park, Orland Hills, Tinley Park, Franklin Park, Frankfort and South Chicago Heights, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.