Illinois Probate Act 755 ILCS 5/6-19: Judge as Witness

When a decedent passes away, if he (or she) had a will, the will must go through a process called probate. Probate involves the will being “proved.” To begin the probate process, the petitioner, usually the executor named in the will, files the will with the appropriate Chicago area Probate Court, along with a petition requesting that the will be admitted to probate. The role of the Probate Court judge is to review the petition as well as evidence supporting the petition. However, under Illinois Probate Act section 6-19- Judge as witness, if the Probate Court judge assigned to preside over the proceeding is also a witness to the will, then another judge must replace him. If you have questions or concerns about a probating the will of a loved one, contact the skilled Chicago probate attorneys at the Law Offices of Stephen Bilkis & Associates who can explain the procedural requirements.

In Illinois, in order for a will to be valid, the testator must be at least 18 years old and must be of sound mind and memory. In other words, the person must not have been deemed mentally incompetent at the time the will was executed. In addition, the will must be in writing, signed by the testator and at least two witnesses. Each witness must sign the will in the presence of the testator. Thus, it would not be unusual for a person who also happens to be a probate judge, to serve as witness to the signing of a will.

Under Illinois Probate Act section 4-3, a witness can be anyone who is credible. The witnesses should be disinterested. This means that the witnesses should not also be beneficiaries. While the law does not exactly prohibit a person who is also a beneficiary from being a witness, if a witness is also a beneficiary, the gift to the beneficiary is void. Thus, as a Chicago probate attorney will explain, if you want to leave property to someone in your will, do not permit that person to also witness your will. In the alternative, make sure that you have at least two other witnesses who are disinterested.

During probate a will is authenticated. A probate court judge will not probate a will that is not executed according to the requirements of Illinois law.

There are two general ways to prove a will in Illinois. When a will is executed, the law requires that two witnessed observe the signing of the will and that they also sign it. During a probate hearing, those two witnesses are subpoenaed to appear before the probate judge and testify. Their testimony must include that they were present when the will was signed, that they observed the testator sign the will, and that they believed that the testator was of sound mind at that time. The judge may ask additional questions necessary to determine whether the will is valid or not. Furthermore, interested parties have the right to object to probate. For example, common reasons to object to probate include:

• Lack of testamentary capacity. A testator must have the requisite mental capacity to executor a will. This means that he (or she) must understand what it means to create a will, must understand the extent of his estate, and must understand who is heirs are. If there is evidence that testator did not have the mental capacity to make a will, the probate judge will not admit the will to probate.
• Undue influence. In addition, the will must not be based on undue influence. Undue influence means that someone manipulated the testator to make a will favorable to the manipulator at the expense of the testator’s heirs.
• Forgery. A forged will would be fraudulent and invalid.

There would be an obvious conflict if the judge was a witness stating that the will is valid, and then another person filed an objection stating that the will was not valid due to lack of testamentary capacity, undue influence, forgery, or some other reason. If you have question about the validity of the will, contact an experienced probate lawyer in Chicago.

The other way to prove that the will is valid is for the will to be self-proving. This means that at the time the will is executed, the witnesses sign an affidavit stating that they observed the testator sign the will and that they believe that he was of sound mind.

1. Petition to admit will or to issue letters : Illinois Probate Act, 755 ILCS 5/6-2
2. Power of administrator with the will annexed: Illinois Probate Act, 755 ILCS 5/6-16

If a judge is a witness to a will which is required by law to be proved before him, another judge shall be designated to take the testimony of witnesses to the will and to decide whether or not the will shall be admitted to probate. The judge who is the witness may proceed to administer the estate unless he is otherwise precluded therefrom by this Act

If you have questions about the probate or administration process, contact a probate attorney serving Chicago at the Law Offices of Stephen Bilkis & Associates. We have decades of experience representing client in complex estate matters before the Illinois Probate Court. If you have concerns related to probate including the requirements of Illinois Probate Act section 6-19- Judge as witness, contact one of our skilled attorneys attorneys at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve clients throughout Chicago.