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In re Afaro

November 24, 1998

IN RE ESTATE OF TOMASA ALFARO, DECEASED (JUANITA KOBLE AND RAMONA ALCALA, PETITIONERS-APPELLANTS,
v.
SANTOS ALFARO, DOMINGO ALFARO, JULIAN ALFARO, ANTONIO A. ALFARO, TOMAS ALFARO, AND FELIPA NAVARRO, RESPONDENTS-APPELLEES).



The opinion of the court was delivered by: Justice Bowman

No. 96--P--524

Appeal from the Circuit Court of Lake County.

Honorable John G. Radosevich, Judge, Presiding.

In this will contest case, petitioners, Juanita Koble and Ramona Alcala (proponents of the will), appeal from the circuit court's order granting summary judgment to respondents, Santos Alfaro, Domingo Alfaro, Julian Alfaro, Antonio A. Alfaro, Tomas Alfaro, and Felipa Navarro (contestants of the will). On appeal, the proponents argue that the trial court erred in finding the will invalid and granting summary judgment to the contestants of the purported will of Tomasa Alfaro (Alfaro), deceased. Under the circumstances presented, we conclude that the entry of summary judgment was inappropriate. We reverse the judgment and remand the cause for further proceedings.

Before we consider the facts and merits of this appeal, we briefly examine the requirements for admitting a will to probate and for contesting a will. Section 6--4 of the Probate Act of 1975 (Act) states:

"(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, 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. 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. (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." 755 ILCS 5/6--4 (West 1996).

The probate process represents a continuum of proceedings, and an order of admission is among the first to be entered. The admission proceeding is limited to determining whether a prima facie showing of compliance with section 6--4(a) of the Act has been made. In re Estate of Lynch, 103 Ill. App. 3d 506, 507-08 (1982). However, the admission of a will to probate is not res judicata as to issues that may be raised in a later will contest, and such a contest allows the relitigation of the same issues raised in the admission proceeding. Lynch, 103 Ill. App. 3d at 508-09. An order admitting a will to probate is not final as to the validity of the will where a timely, direct contest of the will is initiated in the same proceeding. The question presented in a will contest is not whether the will was properly admitted but whether the will is to be declared valid or invalid, and all questions concerning the validity of the will are tried de novo. Sternberg v. St. Louis Union Trust Co., 394 Ill. 452, 459 (1946); In re Estate of Koziol, 236 Ill. App. 3d 478, 485-86 (1992).

The procedures and quantum of proof are quite different in the two types of litigation. While the admission proceeding requires only a prima facie showing of the validity of the will, the will contest provides the contestant a full opportunity, after admission, to investigate thoroughly all the circumstances affecting the validity of the instrument. Lynch, 103 Ill. App. 3d at 509. In a will contest, the burden is on the contestant to provide proof sufficient to overcome the prima facie validity of the previously admitted will. Lewis v. Deamude, 376 Ill. 219, 221-22 (1941).

The statutory scheme preserves the right of a contestant to show fraud, compulsion, forgery, or other improper conduct sufficient to invalidate a will. In re Estate of Jaeger, 16 Ill. App. 3d 872, 874 (1974). If the instrument contains an attestation clause that shows on its face that all of the formalities required by law have been met and the signatures on the instrument are admittedly genuine, a prima facie case has been made in favor of the due execution of the will. However, when the evidence clearly shows that the attestation clause does not speak the truth, the attestation clause alone cannot establish a prima facie case in favor of due execution. Jaeger, 16 Ill. App. 3d at 875. A prima facie case of the validity of the will may be overcome by the positive testimony of the subscribing witnesses that one of the statutory requirements was not met. In re Estate of Thomas, 6 Ill. App. 3d 70, 72 (1972).

Section 8--1(a) of the Act provides, among other things, that any interested person may file a petition to contest the admission of the will to probate within six months of its admission. 755 ILCS 5/8--1(a) (West 1996). Any party to the proceeding may demand a trial by jury, and the contestant shall in the first instance proceed with proof to establish the invalidity of the will; at the close of the contestant's case, the proponent may present evidence to sustain the will. An authenticated transcript of the testimony of any witness taken at the time of the hearing on the admission of the will to probate, or an affidavit of any witness received as evidence under section 6--4(b), is admissible as evidence. 755 ILCS 5/8--1(c) (West 1996).

Having reviewed the legal background for this type of proceeding, we now turn to the factual and legal issues presented by this appeal. At the initial hearing to admit the will to probate, Elba Franco testified on behalf of the proponents of the will. She identified a six-page document (the purported will) upon which she recognized her signature and the initials "LC." She stated that her initials appeared on each page of the document. She recalled Ramona Alcala coming into the office with an older lady (Tomasa Alfaro). She saw Alfaro sign the document and Alfaro seemed to know what she was doing.

The document was dated February 23, 1992, the date on which it was signed. Franco was called in to witness her signature. Lucy Copado was present during the signing of the will. Franco saw Copado place her initials on each sheet. Franco did not know Alfaro before that day and did not know if she spoke English. She did not hear her say anything that day. When asked whether an investigator asked her if Copado was present and signed the will, Franco said, "I told him most likely she was." According to Franco, Copado was there "because that's the way it usually ran in the office. Lucy Copado would be there." Franco did not remember the older lady (Alfaro) but did remember being a witness to the signature. Franco volunteered in the office to help Copado. She believed that it was Lucy Rios who prepared the will. Rios was not a lawyer.

Lucy Rios testified that she was self-employed in a secretarial service and also worked for the Lake County health department. She sometimes did translating and interpreting for the court and did income taxes and typing for several lawyers' offices. She identified the document in question that was prepared by her office as the will of Tomasa Alfaro. Rios had known Alfaro's daughter Ramona for the past 15 years and knew the family well. Alfaro asked Rios to prepare the will. Rios had her daughter Lucy type it up. When they came to the office, Rios went over the will and Alfaro signed it. In court, Rios recognized her own signature on the last page of the document "as the notary to the document." Rios's initials also appeared on every page of the document.

Rios testified that Ramona (Alfaro's daughter), Tomasa Alfaro, Rios's daughter Lucy (Copado), Elba Franco, another daughter of Rios, and Janie were present in the office. Copado, Franco, and Rios signed the document and they saw Alfaro sign it. Rios saw Franco place her name and initials on the document and saw her sign her name as a witness to the document. Rios also saw Copado sign the document and place her initials on the left side of each page of the document. Alfaro ...


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