dissenting:
The decision of the majority is in conflict with an earlier decision of this court in Kelley v. First State Bank (1980), 81 Ill. App. 3d 402, which reiterated a long-standing rule of this State. Moreover, it fails to comport with any reasonable standard of justice. Accordingly, I dissent.
In Kelley, the plaintiffs brought a will contest action to set aside a 1974 trust agreement, will, codicil, and certain gifts of the decedent. The plaintiffs stood to inherit a large portion of the decedent’s estate under a 1965 will which would apparently be effective if the 1974 instruments were declared invalid and set aside. The defendants, who stood to inherit a large portion of the estate under the 1974 instruments, argued the plaintiffs had no standing to bring the action. They argued that there had been a March 1, 1973, will of the decedent which revoked all prior wills, including the 1965 will relied on by the plaintiffs. Since the 1965 will had been revoked, the defense argued, the plaintiffs had no right to contest the 1974 will and trust agreement. After noting that the March 1, 1973, will was nonexistent, this court disagreed, stating:
“It has been found, expressly, that devisees and legatees of a prior will of the decedent, even though not heirs at law, are ‘interested persons’ within the meaning of [section 8 — 1]. [Citations.] There is no question that plaintiffs, as devisees and legatees under a prior will, have a direct, pecuniary, existing interest which would have been detrimentally affected by the probate of the 1974 will and trust. They are interested persons and were entitled to contest the 1974 documents.” Kelley v. First State Bank (1980), 81 Ill. App. 3d 402, 413.
The majority holds that to be an interested party within the meaning of paragraph 8 — 1, the petitioner had to have a direct, pecuniary, existing interest in the will “immediately preceding” the purported will sought to be probated. However, such is not the requirement of Kelley, which held that devisees and legatees of a prior will are interested persons within the meaning of section 8 — 1. “Prior” has been defined as “[ejarlier; elder; preceding” (Black’s Law Dictionary 1074 (5th ed. 1979), and “earlier, coming before another or others in time or order” (emphasis added) (Oxford American Dictionary 531 (1980)). Prior does to necessarily mean “immediately preceding.” Thus, the rule stated in Kelley should be deemed to apply whether or not there are intervening wills between the will naming the plaintiff as a beneficiary and the will sought to be probated.
Additionally, by limiting the definition of an “interested person” only to those who were named in the will immediately preceding the one sought to be probated, the majority completely ignores the possibility that more than one will may be invalid. In so ruling, the majority’s opinion delineates a scheme for those who seek to defraud probate courts and beneficiaries named in a will. That is, if one is going to design a fraudulent will for probate, he should be sure to create two such documents, both of which are dated subsequent to the true will, and neither of which name the beneficiaries sought to be defrauded.
In further support of its holding, the majority notes:
“To interpret the statute as conferring upon the petitioner the status of an ‘interested person’ would also require the petitioner plead and prove facts attacking the validity of the four wills and several codicils drafted subsequent to the particular will naming her as a beneficiary. To interpret the statute in this manner would conflict with the orderly administration of estates and controvert the policy of the Probate Act.” (167 Ill. App. 3d at 272.)
That the petitioner may have burdensome and lengthy litigation ahead is really beside the point. It is certainly unjust if the “orderly administration of estates” should either operate to condone a fraud or to deny a legal remedy to interested persons who may have a genuine challenge to the will sought to be probated. Such is not, and has never been, the policy of the Probate Act.