Appeal from Circuit Court of Coles County No. 10P11 Honorable the Mitchell K. Shick, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Steigmann and Knecht concurred in the judgment and opinion.
¶ 1 The petitioners in this case are Larry Koester and Gerard Koester. The decedent, Maurice J. Koester, named them as coexecutors in his will, dated December 5, 1980.
¶ 2 The respondents are First Mid-Illinois Bank & Trust, N.A., and Michael J. Metzger. The bank is the administrator of Maurice's estate (letters of administration were issued before his purported will came to light). Metzger is the executor of Patricia A. Koester's will. Patricia was Maurice's wife. She died several months after him.
¶ 3 Petitioners filed a petition to admit Maurice's will to probate. Respondents objected to the petition, alleging that Maurice had burned a duplicate original of his will of December 5, 1980, thereby revoking the duplicate original now on file with the Coles County circuit clerk. Respondents relied on In re Estate of Holmberg, 400 Ill. 366 (1948), for their theory that, by destroying one of two duplicate original wills, Maurice revoked both of them. At the conclusion of an evidentiary hearing, the trial court agreed with respondents' theory of revocation and consequently denied admission of the will to probate. Petitioners appeal.
¶ 4 Reviewing the record with a deferential eye, we do not find any actual evidence that Maurice executed duplicate wills on December 5, 1980, as opposed to only one will, the will on file with the circuit clerk. Ultimately, one can only speculate that he did so-and speculation is not evidence.
¶ 5 In any event, even if Maurice did execute duplicate wills on December 5, 1980, one of which he afterward burned, respondents presented no evidence that the surviving duplicate original-the one that petitioners wish to be admitted to probate-was out of Maurice's possession at his death so as to prevent him from revoking that one as well by "burning, canceling, tearing or obliterating it." 755 ILCS 5/4-7(a)(1) (West 2010). In that respect, Holmberg is distinguishable, for the supreme court held in Holmberg that "cancellation by a testator of one of two duplicate originals of his will cancels and revokes the other duplicate original left in the custody of another person." (Emphasis added.) Holmberg, 400 Ill. at 370. We see no evidence that the surviving duplicate original remained in someone else's custody so as to make its continued existence explainable.
¶ 6 For these reasons, we conclude that the trial court's judgment is against the manifest weight of the evidence, and we reverse the judgment and remand this case for further proceedings.
¶ 8 A. Events and Procedures Leading Up to the Bench Trial
¶ 9 On December 5, 1980, Maurice executed a will, in which he gave all his personal property to his parents and the residue of his estate to a testamentary trust for the benefit of his parents and siblings. Upon the death of Maurice's last-surviving parent, the trust was to terminate, and its assets were to be distributed to the descendants of Maurice's parents. The will named petitioners as co-trustees and coexecutors. They both are brothers of Maurice.
¶ 10 In June 1982, Maurice married Patricia.
¶ 11 On January 27, 2010, Maurice died. His wife, Patricia, survived him.
¶ 12 On February 3, 2010, Patricia filed a petition to be appointed independent administrator of Maurice's estate. In her petition, she alleged that Maurice had left no will. That same day, the trial court appointed her as independent administrator of Maurice's estate.
¶ 13 On June 21, 2010, Patricia resigned her position as independent administrator-"as a result of issues relating to [her] health," her resignation said-and she designated Metzger to be the successor independent administrator. That same day, the trial court appointed Metzger as the successor administrator.
¶ 14 In July 2010, Maurice's will of December 5, 1980, was mailed anonymously to the trial court. It is an original signed will. None of the parties dispute the authenticity of the will, although it is unknown where the will came from.
¶ 15 On October 21, 2010, petitioners filed a petition to admit the will to probate and for the issuance of letters testamentary.
¶ 16 On October 28, 2010, Patricia died.
¶ 17 On November 3, 2010, Metzger resigned his position as the successor independent administrator of Maurice's estate. The stated reason for his resignation was that he was named as executor in Patricia's will and he believed that his responsibilities as her executor conflicted with his responsibilities as administrator of Maurice's estate. He recommended First Mid-Illinois Bank & Trust, N.A., to replace him as administrator. On December 1, 2010, the trial court appointed the bank as the successor independent administrator of Maurice's estate.
¶ 18 On December 13, 2010, Metzger, in his capacity as executor of Patricia's will, filed objections to the petition to admit Maurice's will to probate. Metzger alleged that Maurice revoked the will sometime after marrying Patricia.
¶ 19 On December 22, 2010, the bank, as the independent administrator of Maurice's estate, likewise filed objections to the petition to admit the will to probate. On information and belief, the bank likewise alleged that Maurice revoked the will sometime after marrying Patricia.