In re Estate of Lum

Second Division
August 4, 1998

1-97-3533

In re ESTATE OF YUA KEE LUM, ) Appeal from the Circuit
Deceased (Shuk Fan Cheung Lum, ) Court of Cook County,
the Surviving Spouse, ) Probate Division.
)
Petitioner-Appellant, )
) No. 96 P 6020
v. )
)
DAVID LUM, Adm'r, ) Honorable
) James W. Kennedy,
Respondent-Appellee). ) Judge Presiding.

JUSTICE RAKOWSKI delivered the opinion of the court:

Section 4-3 of the Probate Act of 1975 (755 ILCS 5/4-3 (West
1992)) requires that a will must be "attested" by two credible
witnesses to be valid. In this case, Yua Kee Lum, decedent,
dictated and signed a hand-written will on May 27, 1996,
providing for the disposition of all his property upon his death.
The will was never signed by any witnesses, although decedent had
the will notarized by Wol Ju Mendoza the next day. Decedent
later died on June 15, 1996.
On May 15, 1997, almost a year after the will was made, Lisa
Lum, decedent's daughter, prepared an affidavit claiming that she
was present when decedent signed the will and that she believed
decedent was of sound mind and memory at that time. Likewise, on
June 19, 1997, Wol Ju Mendoza prepared an affidavit virtually
identical to Lisa Lum's except that he also certified that he
notarized and dated the will on May 28, 1996.
David Lum, administrator of decedent's estate and son of
decedent, filed a petition to admit the will into probate, which
the trial court granted over the objection of Suk Fan Cheung,
decedent's surviving spouse. The issue below and on appeal is
whether the decedent's will is valid pursuant to section 4-3 of
the Probate Act of 1975 where the attesting witnesses did not
sign the will. Finding that "attest" includes the act of
subscribing, we conclude that decedent's will is invalid.
Therefore, we reverse.
DISCUSSION
"The party seeking to have a will admitted to probate has
the burden of proving it was properly executed according to
statute." In re Estate of Smith, 282 Ill. App. 3d 389, 393
(1996). "We will not reverse the trial court's decision to admit
a will to probate unless it is against the manifest weight of the
evidence." Smith, 282 Ill. App. 3d at 393. In this case,
however, the facts are not in dispute; rather, the parties'
contentions regard the proper interpretation of the Probate Act
of 1975 (Act). Consequently, we review the circuit court's
decision as a matter of law and conduct a de novo review. Von
Meeteren v. Sell-Sold, Ltd., 274 Ill. App. 3d 993, 996 (1995).
This case hinges on the interpretation of the term "attest"
as contained in the Act. Appellee defends the trial court's
decision by asserting that the court should read the term
"attest" to mean "acts as a witness to." Appellant, on the other
hand, urges this court to construe "attest" to encompass not only
the act of perceiving, but also the act of subscribing one's
signature. As such, appellant argues that section 4-3 of the
Probate Act requires that the will be signed by two attesting
witnesses and that, without such signatures, the will is not
valid and is incapable of being proved for admission into
probate. See 755 ILCS 5/4-3, 6-4 (West 1992). We agree with
appellant.
In providing the signing and attestation requirements,
section 4-3 states in pertinent part that "[e]very will shall be
in writing *** and attested in the presence of the testator by 2
or more credible witnesses." (Emphasis added.) 755 ILCS 5/4-3
(West 1992). Adherence to section 4-3 of the Act is mandatory.
Young v. Young, 20 Ill. App. 3d 242, 244 (1974); 755 ILCS 5/4-3
(West 1992).
Furthermore, for a will to be admitted into probate, the
proponent must prove that the will was properly executed by
satisfying the requirements set forth in section 6-4 of the Act.
755 ILCS 5/6-4 (West 1992). Section 6-4 provides:
"(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 ***. The proponent may also
introduce any other evidence competent to
establish a will. ***
(b) The statements of a witness to
prove the will under 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
and which forms part of the will or is
attached to the will or to an accurate
facsimile of the will." (Emphasis added.)
755 ILCS 6-4(a), (b) (West 1992).
Some courts in other jurisdictions have found that "attest"
does not encompass the witness subscribing her name to the will.
In those jurisdictions, "attest" and "subscribe" have distinct
meanings. 2 W. Bowe & D. Parker, Page on the Law of Wills
19.74, at 171 (1960) (hereinafter Law of Wills). As such,
"[a]ttestation is the act of perceiving and knowing the
performance of the various acts which are necessary to the legal
execution of the will, while subscription is the act of the
attesting witness in signing his name upon the will to identify
the instrument thus attested." Law of Wills 19.74, at 171-72
(subscription is the mechanical act of signing and "attestation
is the act of signing for the purpose of affirming the thing, the
knowledge of which constitutes attestation").
While many courts hold this view, others have rejected the
distinction between the import of these terms and hold that they
are practically synonymous. Law of Wills 19.74, at 171-72.
According to this view, "attestation" is "broad enough to include
both knowledge of the facts of execution and subscription by the
witnesses." Law of Wills 19.74, at 172-73. "Accordingly, if
the statute provides that witnesses must 'attest' a will, they
must sign their names thereto as witnesses, in addition to
perceiving the acts necessary to the legal execution of the
will." Law of Wills 19.74, at 173; Annotation, "Attestation" or
"Witnessing" of Will, Required by Statute, as Including Witness'
Subscription, 45 A.L.R.2d 1365, 1366 (1956) (cases arising in
jurisdictions where the statutes require the will to be attested
by witnesses but not subscribed uniformly hold that "attestation"
includes the act of "subscription"). Illinois courts have long
adhered to this interpretation of the term "attestation."
In Sloan v. Sloan, 184 Ill. 579 (1900), the supreme court
addressed the issue of whether the term "attestation" necessarily
encompassed the requirement of subscription. The court stated:
"The rule has, however, been long acquiesced
in and understood in this State, that in
order to render a will valid it must be
subscribed by the attesting witnesses, and
this court has so held. *** 'This act of
attestation consists in the subscription of
the names of the witnesses to the attestation
clause, as a declaration that the
[testator's] signature was made or
acknowledged in their presence. It is this
act of attestation by subscribing their names
to the will as witnesses thereto which the
statute requires to be in the presence of the
testator. The object of the law, as
frequently declared, is to prevent fraud or
imposition upon the testator or the
substitution of a surreptitious will, and to
effectuate that object it is necessary that
the testator shall be able to see and know
that the witnesses subscribe their names to
the paper which he has executed or
acknowledged as his will.' " Sloan, 184 Ill. at 583-84, quoting Drury v. Connell, 177 Ill. 43, 47 (1898) ("attestation consists in the
subscription of the names of the witnesses to
the attestation clause as a declaration that
the signature was made or acknowledged in
their presence")
Illinois courts since Sloan have continued to read the term
"attestation" to include the act of signing. In re Estate of
Guinane, 65 Ill. App. 2d 193, 198-99 (1965) (the law regarding
attestation requires that the testator "be able to see and know
that the witnesses have affixed their names to the paper which he
has signed and acknowledged as his will"); Walker v. Walker, 342 Ill. 376, 383 (1930) (it is essential for attestation that the
testator must be able to see the witnesses sign their names to
the instrument); Ellis v. Flannigan, 253 Ill. 397, 400 (1912)
(for attestation, witnesses must sign the will within the sight
of the testatrix); Calkins v. Calkins, 216 Ill. 458, 462 (1905)
("[a]ttestation is the act of witnessing the actual execution of
an instrument and subscribing the name of the witness in
testimony of the fact"); see also In re Estate of Lynch, 103 Ill.
App. 3d 506, 510 (1982); Spangler v. Bell, 390 Ill. 152, 154
(1945).
Furthermore, case law has restated the substance of section
6-4(a) in a manner that further confirms that the term "attest"
encompasses the act of "subscribing" in Illinois. In re Estate
of Nicola, 275 Ill. App. 3d 497, 499 (1995). In Nicola the court
asserted:
"[A] will is sufficiently proved to admit it to probate
when two attesting witnesses state: (1) that they were
present when the testator signed the will or
acknowledged his signature upon the will; (2) that they
signed as witnesses in the presence of the testator;
and (3) that they believed the testator to be of sound
mind and memory at the time of the execution."
(Emphasis added.) In re Estate of Nicola, 275 Ill.
App. 3d 497, 499 (1995).
Nevertheless, appellee argues that the legislature no longer
requires strict compliance with section 4-3 and section 6-4 of
the Probate Act. Appellee contends that the provision in section
6-4(a) stating that "[t]he proponent may also introduce any other
evidence competent to establish a will" not only relaxes strict
compliance with the provisions of that section, but also relaxes
compliance with the provisions of section 4-3 in cases where the
trial court finds sufficient proof to support the conclusion that
a valid will has been made. (Emphasis added.) 755 ILCS 5/6-4(a)
(West 1992). He further argues that earlier case law defining
the meaning of "attest" does not apply because those cases
addressed the language as it was under the former Wills Act (Ill.
Rev. Stat. 1939, ch. 148, 2 (repealed by 1939 Ill. Laws 80 (
344 to 45), eff. January 1, 1940), which did not have the above
provision regarding other evidence.
Contrary to appellee s argument, the plain language of
section 6-4(a), when read as a whole, fails to alter the required
elements of section 4-3 that must be proved to establish a valid
will. Rather, it only expands the means by which the proponent
may prove the will under section 6-4. The word "also" is a
conjunctive word meaning "in addition to" and modifies the verb
"introduce" in the sentence. When one reads the first sentence
of section 6-4(a), it becomes apparent that it provides for the
introduction of attesting witnesses' statements as a means of
proving the will. Accordingly, when section 6-4 is read as a
whole, the cited provision merely provides a proponent with the
option of proffering additional evidence other than the testimony
of the attesting witnesses to prove that the execution of the
will complied with the requirements of the Act. See In re Estate
of Koziol, 236 Ill. App. 3d 478, 483-84 (1992) (court relied on
notary's testimony as evidence of will's validity where two of
the three attesting witnesses denied that the will was properly
attested).
To construe the provision in the manner that appellee urges
would effectively eliminate all the formalistic requirements set
forth by the legislature for the formation of wills under section
4-3. This, we cannot do. Young, 20 Ill. App. 3d at 243-44;
Spangler, 390 Ill. at 154 (statute controls right to dispose of
property and adherence to it is mandatory). See also In re
Estate of Weaver, 50 Ill. App. 3d 223, 227 (1977) ("The object of
a [probate] hearing when a supposed will is presented for probate
is to determine whether it has been executed with the formalities
required by law").
Moreover, appellee's claim that the older case law should
not be used for guidance purposes is misplaced and without merit.
The Probate Act of 1975 requires the same formalities pertaining
to the signing and attestation of wills as did the former Probate
Act and that act's predecessor, the Wills Act. Compare 755 ILCS
5/4-3 (West 1992) ("Every will shall be in writing, signed by the
testator *** and attested in the presence of the testator by 2 or
more credible witnesses"), with Ill. Rev. Stat. 1941, ch. 3, par.
194 (repealed by Pub. Act 79-328, eff. January 1, 1976) ("Every
will *** shall be reduced to writing, shall be signed by the
testator ***, and shall be attested in the presence of the
testator by two or more credible witnesses"), with Ill. Rev.
Stat. 1939, ch. 148, 2 (repealed by 1939 Ill. Laws 80 ( 344 to
45), eff. January 1, 1940) ("All wills *** shall be reduced to
writing, and signed by the testator or testatrix, *** and
attested in the presence of the testator or testatrix by two or
more credible witnesses"). Again, the provision in section 6-
4(a) allowing other competent evidence to establish a will only
expands the means by which the proponent may prove the will, but
it does not reduce the required formalities for the formation of
a valid will pursuant to section 4-3 of the Act. Thus, the early
case law still provides sound guidance on the interpretation and
application of the term "attestation."
Therefore, for the above reasons, we reverse the judgment of
the circuit court of Cook County.
Reversed.
McNULTY, P.J., and COUSINS, J., concur.