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In Re Estate of Salzman

JANUARY 18, 1974.

IN RE ESTATE OF WALTER W. SALZMAN, DECEASED — (HAZEL ZOCHERT ORELUP, A/K/A HAZEL ORELUP ET AL., PETITIONERS-APPELLANTS,

v.

HAZEL ORELUP ET AL., RESPONDENTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. HOGAN, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This is an appeal taken from an order denying the will of Walter Salzman to probate. The three page holographic will bequeathed assets approximating $20,000 to the petitioners herein. The effect of the trial court's ruling resulted in one-half of the estate escheating to the county with the remainder distributed to some 30 cousins of the decedent. On appeal the County of Cook has filed the only respondent brief.

The will in question was drafted by decedent and witnessed by Ida Douglas and Rose Wright on December 6 and 7, 1970, respectively. Salzman subsequently died on June 5, 1972. Pursuant to section 62 of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, par. 62), the executor of the will petitioned to admit the will to probate. No objections were made to the probate of the will, nor was there any evidence of fraud, forgery, compulsion or other improper conduct.

At the hearing, Ida Douglas testified that she was summoned to the decedent's residence and asked to sign his will. She neither saw the decedent sign the instrument, nor did she recall seeing his signature. She did, however, testify that decedent expressly acknowledged the instrument to be his will. Rose Wright testified that she too signed the instrument in the presence of the decedent. However, petitioners claim that her testimony was inconsistent in respect to the decedent's proper acknowledgment of the will as his act. The court, apparently as a result of this testimony, denied admittance of the will. Pertinent parts of Rose Wright's testimony are set out below. *fn1

Petitioners filed a post-trial motion seeking to vacate the order denying admission of the will; or to retry or rehear the issues; or to have an order admitting the will to probate. After denial of this motion and pursuant to section 329 of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, par. 329) petitioners perfected this appeal.

Petitioners assert that decedent properly acknowledged to Rose Wright that the instrument she was signing was his will and, because the signatures were valid, there is a presumption of due execution and attestation. Conversely, the respondents assert that petitioners have not complied with the requirements necessary to admit a will to probate: specifically, that the decedent failed to sign his will or acknowledge it as his act in the presence of his witness, Rose Wright.

OPINION

• 1, 2 In order to allow admittance of a will to probate there must be compliance with section 69 of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, par. 69):

"When each of two attesting witnesses to a will testifies before the court (a) that he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or that the testator acknowledged it to the witness as his act, (b) that the will was attested by the witness in the presence of the testator, and (c) that 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. The proponent may also introduce any other evidence competent to establish a will in chancery. 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."

These legislative directives are mandatory. As stated in Ruffing v. Glissendorf, 41 Ill.2d 412, 420, 243 N.E.2d 236:

"It has long been recognized that the proof necessary to entitle a will to probate is confined to the essential elements fixed by the statute (section 69 and its predecessors) and is for the purpose of establishing whether a prima facie case of validity has been made. [Citations.]"

The burden of proof in establishing the validity of the proffered will is upon the proponent of the will. (In re Estate of Thomas, 6 Ill. App.3d 70, 284 N.E.2d 513; In re Estate of Willavize, 21 Ill.2d 40, 171 N.E.2d 21.) However, it is not the duty of the proponent to show that the will is valid in all respects; it is his duty only to prove the essential elements included in the statute. In re Estate of Lewicki, 282 Ill. App. 192.

Petitioner correctly states that the court will indulge every reasonable presumption in favor of the execution and attestation of a will in order to uphold the validity of an apparently properly executed document. This is true even in the absence of witness recollection as to what transpired during the attestation of the will. As stated in Conway v. Conway, 14 Ill.2d 461, 466, 153 N.E.2d 11:

"The probate of a will cannot be made to depend upon the recollection or veracity of subscribing witnesses, for if it were necessary for them to remember and testify to the fact that all the prescribed formalities ...


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