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In re Estate of Yua Kee Lum

August 04, 1998

IN RE ESTATE OF YUA KEE LUM, DECEASED (SHUK FAN CHEUNG LUM, THE SURVIVING SPOUSE, PETITIONER-APPELLANT,
v.
DAVID LUM, ADM'R, RESPONDENT-APPELLEE).



The opinion of the court was delivered by: Justice Rakowski

Appeal from the Circuit Court of Cook County, Probate Division.

No. 96 P 6020

Honorable James W. Kennedy, Judge Presiding.

Section 4-3 of the Probate Act of 1975 (755 ILCS 5/4-3 (West 1992)) requires that a will must be "attested" by two credible witnesses to be valid. In this case, Yua Kee Lum, decedent, dictated and signed a hand-written will on May 27, 1996, providing for the Disposition of all his property upon his death. The will was never signed by any witnesses, although decedent had the will notarized by Wol Ju Mendoza the next day. Decedent later died on June 15, 1996.

On May 15, 1997, almost a year after the will was made, Lisa Lum, decedent's daughter, prepared an affidavit claiming that she was present when decedent signed the will and that she believed decedent was of sound mind and memory at that time. Likewise, on June 19, 1997, Wol Ju Mendoza prepared an affidavit virtually identical to Lisa Lum's except that he also certified that he notarized and dated the will on May 28, 1996.

David Lum, administrator of decedent's estate and son of decedent, filed a petition to admit the will into probate, which the trial court granted over the objection of Suk Fan Cheung, decedent's surviving spouse. The issue below and on appeal is whether the decedent's will is valid pursuant to section 4-3 of the Probate Act of 1975 where the attesting witnesses did not sign the will. Finding that "attest" includes the act of subscribing, we conclude that decedent's will is invalid. Therefore, we reverse.

Discussion

"The party seeking to have a will admitted to probate has the burden of proving it was properly executed according to statute." In re Estate of Smith, 282 Ill. App. 3d 389, 393 (1996). "We will not reverse the trial court's decision to admit a will to probate unless it is against the manifest weight of the evidence." Smith, 282 Ill. App. 3d at 393. In this case, however, the facts are not in dispute; rather, the parties' contentions regard the proper interpretation of the Probate Act of 1975 (Act). Consequently, we review the circuit court's decision as a matter of law and conduct a de novo review. Von Meeteren v. Sell- Sold, Ltd., 274 Ill. App. 3d 993, 996 (1995).

This case hinges on the interpretation of the term "attest" as contained in the Act. Appellee defends the trial court's decision by asserting that the court should read the term "attest" to mean "acts as a witness to." Appellant, on the other hand, urges this court to construe "attest" to encompass not only the act of perceiving, but also the act of subscribing one's signature. As such, appellant argues that section 4-3 of the Probate Act requires that the will be signed by two attesting witnesses and that, without such signatures, the will is not valid and is incapable of being proved for admission into probate. See 755 ILCS 5/4-3, 6-4 (West 1992). We agree with appellant.

In providing the signing and attestation requirements, section 4-3 states in pertinent part that "[e]very will shall be in writing *** and attested in the presence of the testator by 2 or more credible witnesses." (Emphasis added.) 755 ILCS 5/4-3 (West 1992). Adherence to section 4-3 of the Act is mandatory. Young v. Young, 20 Ill. App. 3d 242, 244 (1974); 755 ILCS 5/4-3 (West 1992).

Furthermore, for a will to be admitted into probate, the proponent must prove that the will was properly executed by satisfying the requirements set forth in section 6-4 of the Act. 755 ILCS 5/6-4 (West 1992). Section 6-4 provides:

"(a) When each of 2 attesting witnesses to a will states that (1) 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 the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) 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 ***. The proponent may also introduce any other evidence competent to establish a will. ***

(b) The statements of a witness to prove the will under subsection 6-4(a) may be made by (1) testimony before the court, (2) an attestation clause signed by the witness and forming a part of or attached to the will or (3) an affidavit which is signed by the witness at or after the time of attestation and which forms part of the will or is attached to the will or to an accurate facsimile of the will." (Emphasis added.) 755 ILCS 6-4(a), (b) (West 1992).

Some courts in other jurisdictions have found that "attest" does not encompass the witness subscribing her name to the will. In those jurisdictions, "attest" and "subscribe" have distinct meanings. 2 W. Bowe & D. Parker, Page on the Law of Wills §19.74, at 171 (1960) (hereinafter Law of Wills). As such, "[a]ttestation is the act of perceiving and knowing the performance of the various acts which are necessary to the legal execution of the will, while subscription is the act of the attesting witness in signing his name upon the will to identify the instrument thus attested." Law of Wills §19.74, at 171-72 (subscription ...


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