Illinois Probate Act 755 ILCS 5/6-6: Proof of Handwriting of a Deceased or Inaccessible Witness or a Witness With a Disability

When someone passes away in Chicago and leaves a will, before the decedent’s property can be distributed to the beneficiaries named in the will, the decedent’s estate must go through a process called probate . Probate is initiated when the executor named in the will files the will with the appropriate Illinois Probate Court. Before the Probate Court judge will allow the executor to move forward with the process of winding up the decedent’s estate and distributing the assets, the judge must be satisfied that the will is valid. If you have concerns related to probating the will of a loved one, including the requirements of 755 ILCS 5/6-6 of the Illinois Probate Act, Proof of handwriting of a deceased or inaccessible witness or a witness with a disability, contact an experienced Chicago probate administration lawyer at the Law Offices of Stephen Bilkis & Associates.

Before the Probate Court will issue letters testamentary or letters of administration with will annexed, the court must be sure that the will authentic. The petition submitted requesting letters must include statements from the two people who were witnesses to the signing of the will to prove that the will is authentic and was properly executed. The witnesses must state that they were present when the will was signed and that they witnessed that testator signing the will. The witnesses must also state that they believe that at the time the testator signed the will that the testator was not suffering a mental incapacity. As a Chicago probate administration attorney will explain, typically the Probate Court will admit a will to probate based on these statements from the witnesses. However, there are situations that may require a judge to further inquire into the validity of a will.

If a witness is unable to sign a statement or otherwise testify about the validity of a will, the court may admit proof of handwriting. Circumstances that may necessitate the use of handwriting include the following:

• A witness is deceased
• A witness is blind
• A witness is mentally incapable of testifying
• A witness is physically incapable of testifying
• A witness is missing
• A witness is an active member of the armed forces
• A witness is outside of Illinois

In other instances, the court may use the deposition of the witnesses as evidence of the authenticity of the will. If your are concerned about the whether or not the will of loved one I valid, discuss your concerns with an experienced probate administration attorney in Chicago.

In Estate of Smith, 668 N.E.2d 102 (Ill. App., 1996), Ethel Smith died in 1994, leaving a will that was executed in 1974. Her brother John, who lived out of state, submitted the will to probate. The petition listed the decedent's heirs as her brother, John C. Polk, and her nieces, Ann Koontz and J. LeVelle Williams. The approximate value of the estate was stated to be $100,000 in personal property and $50,000 in real property. The Probate Court ordered that the will be admitted to probate and that letters of administration be issued to Ann Koontz. With the help of any attorney, J. LeVelle Williams filed a petition to require proof of the will by testimony pursuant to 755 ILCS 5/6-6 of the Illinois Probate Act, Proof of handwriting of a deceased or inaccessible witness or a witness with a disability.

The only witness to the will who could be located for the hearing was Terry Spencer. Terry signed the will as a witness at a bank. He testified that he believed Smith to be "of sound mind and memory" when she signed her name to the will and when he witnessed it. However, Spencer also testified that he did not see the decedent sign the will and did not think she saw him sign as a witness. Other witnesses testified that they were familiar with Smith’s signature and that they believed the signature on the will was Smith’s.

The court concluded that the because the attestation clause establishes that the decedent and the witnesses signed the will in the presence of each other and the witnesses believed decedent was of sound mind and memory, Spencer's statements that he did not see the decedent sign the will and did not think she saw him sign are not sufficient to rebut the presumption of validity to be accorded the attestation clause and does not call into question the presumptive validity of the signatures of the other two witnesses.

1. Signing and attestation: Illinois Probate Act, 755 ILCS 5/4-3
2. Petition to admit will or to issue letters: Illinois Probate Act, 755 ILCS 5/6-2
3. Petition to issue letters: Illinois Probate Act, 755 ILCS 5/6-4
4. Formal proof of will: Illinois Probate Act, 755 ILCS 5/6-21

(a) If a witness to a will (1) is dead, (2) is blind, (3) is mentally or physically incapable of testifying, (4) cannot be found, (5) is in active service of the armed forces of the United States or (6) is outside this State, the court may admit proof of the handwriting of the witness and such other secondary evidence as is admissible in any court of record to establish written contracts and may admit the will to probate as though it had been proved by the testimony of the witness. On motion of any interested person or on its own motion, the court may require that the deposition of any such witness, who can be found, is mentally and physically capable of testifying and is not in the active service of the armed forces of the United States outside of the continental United States, be taken as the best evidence thereof.

(b) As used in this Section, "continental United States" means the States of the United States and the District of Columbia.

The probate administration lawyers serving Chicago at the Law Offices of Stephen Bilkis & Associates have extensive experience working closely with beneficiaries, executors, estate administrators, personal representatives and other interested parties on matters related to probating wills. If you have concerns related to the administration of an estate including the requirements of Illinois Probate Act section 6-6- Proof of handwriting of a deceased or inaccessible witness or a witness with a disability, contact one of our attorneys at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve clients throughout Chicago.