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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