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In re Estate of Brewer

Court of Appeals of Illinois, Second District

June 17, 2015

In re ESTATE OF TYLER B. BREWER, Deceased
v.
Todney B. Brewer, Executor and Legatee, Jourdan Brewer, Heir, and Erin E. Walsh, Guardian ad litem, Respondents-Appellees) (Hannah Brewer, Petitioner-Appellant,

Appeal from the Circuit Court of Winnebago County. No. 13-P-387. Honorable Lisa R. Fabiano, Judge, Presiding.

Kevin W. Bruning and A. Kathleen Barauski, both of Bruning & Associates, P.C., of Crystal Lake, for appellant.

Alexander J. Mezny, of Holmstrom & Kennedy, P.C., of Rockford, for appellee Todney B. Brewer.

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Presiding Justice Schostok and Justice Jorgensen concurred in the judgment and opinion.

OPINION

BIRKETT, JUSTICE.

Page 150

[¶1] This is an appeal from an order of the circuit court of Winnebago County granting a motion to dismiss a petition to contest the validity of a will. The sole issue on appeal is whether the petition alleged sufficient facts to establish that the will had been revoked in accordance with the relevant provisions of the Probate Act of 1975 (Probate Act) (755 ILCS 5/4-7 (West 2012)). For the reasons that follow, we affirm.

[¶2] I. BACKGROUND

[¶3] Tyler B. Brewer died on July 17, 2013. At the time of his death, he had two heirs, Hannah Brewer and Jourdan Brewer. On September 12, 2013, the Last Will and Testament of Tyler Brewer, dated December 1, 1999, was admitted to probate. Todney Brewer, Tyler's brother, was named executor of the will.

[¶4] On March 11, 2014, Hannah filed a petition to contest the validity of the will. In her petition, Hannah alleged:

" On or about September 22, 2012, in contemplation of his impending death and with the intention to revoke the Alleged Will, Tyler cancelled a copy of the Alleged Will by signing the first page, striking through material provisions of the copy, and writing 'As of 9/22/12, This will is void. I am working on a new one that includes both Hannah & Jordan [ sic ].' On information and belief, [a] true and correct copy of the cancelled copy is attached hereto as 'Exhibit A'."

Page 151

Hannah alleged that Tyler wrote the initials " 'TB'" on the document and that such writing was intended to be his signature. Hannah further alleged that, on or about September 22, 2012, Tyler's original will was " lost, misplaced, or otherwise not in the possession of Tyler." Hannah attached a copy of the purportedly cancelled will to her petition as Exhibit A. Exhibit A reveals that Tyler purportedly cancelled an unsigned and unattested copy of the will. Hannah asked the court to declare the will invalid, to find that Tyler died intestate, to revoke the order appointing Todney as executor, to appoint an administrator of the estate, and to order supervised administration of the estate.

[¶5] Todney, as executor and legatee, moved to dismiss the petition to contest the validity of the will, arguing that the petition failed to allege sufficient facts to establish that the will had been revoked in accordance with the relevant provisions of the Probate Act (755 ILCS 5/4-7 (West 2012)).[1] In his motion to dismiss, Todney argued (1) that the writing on the copy of the will was insufficient to cancel ...


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