Formal Proof of Will Hearings in Illinois
I recently represented a client in a formal proof of will hearing in Cook County Probate Court (Daley Center 18th Floor). This type of hearing involves bringing the (usually two) witnesses to a decedent’s Will into court to testify under oath as to the authenticity of their signatures and the circumstances surrounding the execution of the Will.
The Attestation Clause
When executed properly, a Will should include an “attestation clause” prior to the signature block for the witnesses. The attestation clause basically recites the legal requirements for a valid Illinois Will — that the testator (maker of Will) and the two witnesses all signed the Will in each others presence and the witnesses believed that the testator was of sound mind and memory. If the original Will appears on its face to be properly signed and witnessed and an attestation clause is included, then upon petition the probate judge will admit the Will to probate without witness testimony.
Notice and Demand
After the Will is admitted to probate, certain notices must be sent (unless notice was previously waived) within 14 days by the executor/administrator to all of the decedent’s heirs (those who would inherit if there was no Will) and to everyone named as a beneficiary in the Will (the “legatees”). One of those notices informs the heirs and legatees that while the judge has already admitted the Will to probate, they still have a right to demand a formal proof of will hearing by filing a petition with the court within 42 days of the order admitting the Will to probate. If the demand is filed timely by any heir or legatee, then the court will schedule the proof of will hearing and arrangements will typically be made with the witnesses to appear in open court to present their testimony. If witnesses are deceased or unavailable, the statute provides for alternative means of proof.
Reasons to Demand Formal Proof
Why might an heir or legatee want to demand a formal proof of will hearing? There are a number of possible reasons. They might believe that the purported Will is a fraud or forgery. Maybe the witnesses on the Will didn’t really sign their names or didn’t see the testator sign. If a will contest is anticipated (e.g. due to possible lack of capacity or undue influence), it is almost always a good idea to start with a formal proof of will hearing prior to the will contest to put the witnesses on the record and to elicit any useful facts or discrepancies.
There are limits on the scope of the hearing. It is not in itself a will contest hearing, so proving lack of capacity or undue influence will not invalidate the will at this stage. As long as the witnesses testify to the recitations in the attestation clause, then the probate judge will confirm admission of the will to probate, unless there is sufficient proof of fraud, forgery, compulsion or other improper conduct. Note that the 42-day time limit is strict. If the deadline is missed (as long as proper notice was given) then the hearing is no longer available.