In re: Estate of Koziol

FOURTH DIVISION
May 18, 2006
No. 1-05-1455
In re ESTATE OF IRENE S. KOZIOL, )
Deceased )
) Appeal from
(Shirley Koch, ) the Circuit Court
) of Cook County.
Petitioner-Appellant, )
)
v. )
)
Estate of Irene S. Koziol, ) Honorable
) Robert E. Cusack,
Respondent-Appellee). ) Judge Presiding.
PRESIDING JUSTICE QUINN delivered the opinion of the court:
Petitioner Shirley Koch, the daughter and sole heir of the
decedent Irene Koziol, appeals from an order of the circuit court
denying her petition to vacate the admission of a copy of a will
and the original codicil of the decedent. Petitioner also
appeals the circuit court's denial of her request for formal
proof of decedent's will. For the following reasons, we reverse
the circuit court's order and remand this case for further
proceedings.
I. BACKGROUND
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On September 25, 2003, the circuit court admitted to probate
a copy of a will of the decedent dated September 14, 1984, and an
original codicil dated January 10, 1994, pursuant to section 6-4
of the Illinois Probate Act of 1975 (Probate Act) (755 ILCS
5/6-4 (West 2002)) 1. The parties both indicated that the
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"'6-4. Admission of will to probate--Testimony or
affidavit of witnesses. (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
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original will could not be located. Both parties also
acknowledge that no evidentiary hearing was conducted in this
matter. Under the copy of the will, decedent's granddaughters,
Susan Weber (f/k/a Susan Thompson) and Cheri Adrian, are the
residuary beneficiaries, each entitled to receive one-half of the
residuary estate. Under the will, petitioner is a specific
legatee entitled to receive the sum of $5,000. The Decedent's
probate estate includes Series E savings bonds and real estate
located in Chicago, Illinois.
The codicil added a definition for decedent's use of the
term "per stirpes" and a forfeiture provision instructing that
"[i]f any person takes any action to prevent the admission to
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 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 2002).
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probate or to contest the validity of this Will, that person
shall take nothing hereunder." The codicil also included
decedent's statement that "I republish my will dated September
14, 1984 as modified by this First Codicil."
On November 3, 2003, petitioner filed petitions to vacate
the order admitting the copy of decedent's will and original
codicil and requesting formal proof of the will and codicil under
section 6-21 of the Probate Act. Petitioner argued that
decedent's original will had not been produced and, therefore,
there was a presumption that the will was revoked by the
decedent. Petitioner also argued that the burden was on the
proponent of decedent's will to prove that the will was unrevoked
at the time of the testator's death and that petitioner was
entitled to a hearing before the copy of the will was admitted to
probate. On July 20, 2004, the circuit court denied petitioner's
petitions to vacate the order admitting decedent's will and
codicil and request for formal proof of will. Petitioner now
appeals.
II. ANALYSIS
A. Formal Proof of Will
Petitioner argues that the circuit court should have granted
her request for formal proof of the missing will pursuant to
section 6-21 of the Probate Act. Section 6-21 of the Probate Act
provides in pertinent part:
"'6-21. Formal proof of will. If a will has been
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admitted to probate before notice in accordance with
Section 6-4, any person entitled to notice under
Section 6-10 may file a petition within 42 days after
the effective date of the original order admitting the
will to probate to require proof of the will pursuant
to this Section. The court must set the matter for
hearing upon such notice to interested persons as the
court directs. At the hearing the proponent must
establish the will by testimony of the witnesses as
provided in subsection 6-4(b)(1) or Section 6-5 or
other evidence as provided in this Act, but not as
provided by subsection 6-4(b)(2) or subsection 6-
4(b)(3), as if the will had not originally been
admitted to probate. If the proponent establishes the
will by sufficient competent evidence, the original
order admitting it to probate and the original order
appointing the representative shall be confirmed and
are effective as to all persons, including creditors,
as of the dates of their entries, unless there is proof
of fraud, forgery, compulsion or other improper
conduct, which in the opinion of the court is
sufficient to invalidate or destroy the will." 750
ILCS 5/6-21 (West 2002).
This section of the Probate Act provides a mechanism by which an
heir, such as the petitioner in this case, may file a petition to
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require formal proof of the will. Upon the filing of such
petition, the circuit court "must set the matter for [a] hearing"
in which the proponent of the will must establish the will by
testimony of witnesses or other evidence under section 6-21. 755
ILCS 5/6-21 (West 2002). Accordingly, we find that petitioner
was entitled to a hearing for formal proof of the missing will.
B. Evidentiary Hearing Regarding Revocation
Petitioner also argues that the court should have conducted
an evidentiary hearing, before admitting the missing will to
probate, to determine the fate of the missing 1984 will and that
the presumption that a missing will has been destroyed is not
refuted by the mere presence of an original codicil. Respondent
maintains that no evidentiary hearing was required because the
original codicil was per se sufficient to prove the will and that
petitioner can present evidence of revocation after the will has
been admitted by filing a will contest.
We must first consider whether the 1994 codicil is
sufficient to prove the will and to obviate any inquiry into the
will's revocation. Respondent relies upon the principle that a
codicil, which clearly and unmistakenly refers to the will,
republishes the original will as of the date of the codicil's
execution. See Hubbard v. Hubbard, 198 Ill. 621 (1902).
Therefore, respondent maintains that, under Illinois law, a will
is proved by proving a subsequent codicil and no other evidence
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is relevant at the time of determining whether the will and
codicil should be admitted to probate. Under this view, the
original will, subsequent to the execution of the codicil, is no
longer relevant, as the codicil replaces the will. Thus, the
destruction of the original will has no legal effect unless
accompanied by the destruction of the codicil. Otherwise the
codicil instantly revives the revoked will's terms by its
reaffirmation and republication of the will. Following this
reasoning, respondent argues that the introduction of the
original codicil was sufficient to prove the 1984 will.
Respondent cites In re Estate of Smith, 145 Mich. App. 634,
378 N.W.2d 555 (1985), in support of her reasoning. The court in
Smith found that a codicil which expressly ratified provisions of
a will, except for changes in a minor bequest, was by itself a
valid will and therefore the common-law presumption of revocation
with regard to the missing will did not apply to the codicil.
The Smith court based its holding upon a Michigan statute that
defined a codicil as a "separate and independent testamentary
instrument." 145 Mich. App. at 638, 378 N.W.2d at 557. Here,
respondent argues that section 2.18 of the Probate Act (755 ILCS
5/1-2.18 (West 2002)), which states that the word " '[w]ill'
includes testament or codicil," compels this court to reach the
same result as the Smith case.
However, we note that section 1-2.18 of the Probate Act
merely provides a definition for statutory construction and does
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not apply to this case. Rather, Illinois, along with many other
jurisdictions, has adopted the alternative view that the codicil
and will together function as a single testamentary instrument.
See Fischer v. LaFave, 188 Ill. App. 3d 16, 19 (1989); Watt v.
Farmers State Bank & Trust Co., 71 Ill. App. 3d 455, 460 (1979).
In determining whether the revocation of the will
revokes the codicil, the general rule in these jurisdictions is:
"[W]here a codicil is of such character that it
may stand independently of the will, the revocation of
the will does not affect the codicil. If, however, a
codicil is not so complete a testamentary instrument as
to stand alone, the revocation of the will to which it
is appurtenant automatically revokes it." 79 Am. Jur.
2d Wills ' 476 (2002).
See also In re Estate of King, 149 N.H. 226, 231, 817 A.2d 297,
301 (2003).
In In re Estate of King, the Supreme Court of New Hampshire
was presented with an argument similar to the one respondent
raises in this case. After noting the above-stated rule, the New
Hampshire Supreme Court determined that because the codicil was
not sufficiently complete to stand alone, a revocation of the
will would have also revoked the codicil in that case. In re
Estate of King, 149 N.H. at 230-31, 817 A.2d at 301.
We agree with this rule and reject respondent's proposed
rule where it may contravene the testator's intent. When a
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testator executes both a will and codicil adopting a minor change
to that will, and then destroys that will, it is clear that the
testator's intent is to revoke her entire testamentary scheme.
The rule proposed by respondent would lead to a contrary result
and would force a testator who has drafted numerous minor
codicils to destroy every one of these codicils, in addition to
the original will, to accomplish a revocation. See In re Estate
of King, 149 N.H. at 231, 817 A2d at 301.
In this case, the 1994 codicil made only a few minor
amendments and was not sufficiently complete as a testamentary
document to stand alone without the original will. Therefore,
revocation of the 1984 will would have also revoked the 1994
codicil. For this reason, we find that an evidentiary hearing
was necessary for the probate court to determine what happened to
the original 1984 will.
Respondent nonetheless argues that petitioner was not
entitled to an evidentiary hearing regarding the testator's
intention to revoke the will because petitioner could present
evidence of revocation after the will and codicil were admitted
by filing a will contest under section 8-1 of the Probate Act
(755 ILCS 5/8-1) (West 2002)). However, our supreme court has
held that evidence giving rise to a presumption of revocation may
be presented in probate court proceedings under section 6-4 of
the Probate Act, and that a party is not limited to a will
contest if she desires to produce such evidence. See In re
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Estate of Millsap, 75 Ill. 2d 247, 252-53 (1979); see also In re
Estate of Gaglione, 109 Ill. App. 3d 748, 753 (1982), aff'd, by
In re Estate of Gaglione, 97 Ill. 2d 408 (1983).
In In re Estate of Millsap, our supreme court noted that
probate courts have long had the power to hear testimony on the
question of revocation and to deny probate when it appears that
the alleged will has been revoked. In re Estate of Millsap, 75
Ill. 2d at 251. The court further held that the presumption of
revocation may be the basis of a probate court's denial of
admission. In re Estate of Millsap, 75 Ill. 2d at 253.
Therefore, petitioner in this case was entitled to an evidentiary
hearing to present evidence regarding the testator's intent to
revoke the 1984 will during probate proceedings to admit the will
and codicil under section 6-4 of the Probate Act.
The law in Illinois is well established regarding lost or
missing wills. It is established:
"'Where a last will and testament, after its execution,
is retained by the testator and cannot be found upon
his death, it is the well-settled rule of this and of
the majority of jurisdictions that it will be presumed
to have been destroyed by him animo revocandi.
[Citations.] The same cases establish that the
presumption is subject to being rebutted by
circumstances which tend to show a contrary conclusion,
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and that the burden is on one seeking to probate such a
will to prove that it was unrevoked at the testator's
death.' (In re Estate of Moos, (1953) 414 Ill. 54, 57,
110 N.E.2d 194, 195, noted in In re Estate of Millsap,
(1979) 75 Ill. 2d 247, 250, 388 N.E.2d 374, 375-77.
[Citations.] Factors to be considered in addressing
the rebuttal of the presumption include evidence as to
statements from the testator that [s]he did not intend
to revoke the will, evidence that [s]he entertained a
kind and loving attitude toward the proposed
beneficiary under the will up to the time of death, and
evidence of other individuals' access to the will prior
to death. [Citations.] In cases where the issue is
raised whether some person has unlawfully destroyed a
missing will, however, it will not be presumed that a
missing will has been destroyed by any other person,
without the knowledge of or authority of the testator,
although such person may have had the motive and the
opportunity, as that would be presuming a crime." In
re Estate of Phillips, 359 Ill. App. 3d 114, 121-22
(2005).
Accordingly, in this case, the circuit court must give effect to
the presumption if the necessary evidence is brought to the
attention of the court and no rebuttal evidence is admitted to
overcome the presumption. If the proponent of the will has not
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presented such rebuttal evidence, it cannot be said that she has
produced "sufficient competent evidence" within the meaning of
section 6-4 to have the will admitted. See In re Estate of
Millsap, 75 Ill. 2d 247.
We also note respondent's argument that the existence of the
1994 codicil was sufficient evidence to rebut the presumption of
revocation. There are no Illinois cases addressing the effect of
a codicil upon the presumption of revocation. Several other
courts have addressed this issue and adopted the view that an
existing codicil alone is not sufficient to overcome the
presumption that the will was destroyed by the decedent with the
intent to revoke and cannot be used, together with a copy of the
missing will, to substitute for the will at probate under a
theory that the codicil incorporates the will by reference and
becomes a new will. See In re Ayres' Will, 36 Ohio Law Abs. 267,
43 N.E.2d 918 (1940); In re Estate of Bowles, 96 Ohio App. 265,
114 N.E.2d 229 (1953); In re Estate of Steel, 8 Ohio Misc. 133,
219 N.E.2d 236 (1966). Specifically, in In re Estate of Bowles,
the will could not be located, but the original codicil was found
among decedent's documents. The court rejected the claim that
destruction of the will without destruction of the codicil could
not constitute revocation. Bowles, 96 Ohio App. at 280, 114
N.E.2d at 237-38. As the codicil was dependent upon the will for
its effectiveness, the court deemed both were presumed revoked.
Bowles, 96 Ohio App. at 282, 114 N.E.2d at 239. In In re Steel,
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the court followed Bowles. The court remarked that the execution
of a subsequent codicil only proves the will was in existence at
that time. The codicil is dependent upon the will and cannot be
used to substitute for a will which is lost or destroyed after
the codicil is executed. Steele, 8 Ohio Misc. at 139-40, 219
N.E.2d at 242.
Other courts have determined that, where an executed codicil
was found among the decedent's papers together with a copy of the
missing will, the presumption that the missing will had been
destroyed by the decedent with the intent to revoke the will was
overcome. See In re Estate of Kuszmaul, 491 So.2d 287 (Fla. App.
1986); In re Estate of Smith, 145 Mich. App. 634, 378 N.W. 2d 555(1985); In re Estate of Herbert, 89 Misc. 2d 340, 391 N.Y.S.2d
351 (1977). In In re Estate of Day, 12 Kan. App. 2d 668, 753
P.2d 1296 (1988), the court noted that the probate court can
consider that the codicil was in existence and the facts
concerning it in making its factual determination as to whether
the presumption of revocation is overcome. The court found that
the existence of the codicil was insufficient to overcome the
presumption where the testator was never in possession of the
codicil but had continuous possession of the original will. The
court found that the codicil was intended to modify the existing
will; it was not intended to be an independent addition to the
will; and a copy of the will was not kept with the original
codicil. The court also noted that unlike In re Estate of Smith,
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145 Mich. App. at 638, 378 N.W.2d at 557, there was no state
statute declaring a codicil an independent document and the
codicil could not be read as an independent document.
Here, we need not decide this issue and remand this case to
the circuit court to conduct an evidentiary hearing to determine
whether the presumption of revocation should be applied in this
case and to take into account the relevant factors in addressing
whether the proponent of the will can offer sufficient evidence
to rebut the presumption of revocation.
III. CONCLUSION
For the above-stated reasons, we reverse the order of the
circuit court and remand this case for a hearing regarding
petitioner's request for formal proof of the 1984 will and an
evidentiary hearing regarding the revocation of the will.
Reversed and remanded.
CAMPBELL and GREIMAN, JJ., concur.
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