Law Office of
Michael J. Fleck, P.C.
-Illinois Legal Topics-
by Michael J. Fleck, Esq.
WARNING: THIS IS NOT LEGAL ADVICE. CONSULT YOUR ATTORNEY FOR INFORMATION CONCERNING YOUR PERSONAL SITUATION.
This is a series of discussions on legal issues in Illinois. Topics covered include Real Estate, Estate Planning and Administration (wills, trusts, probate and guardianship), Business Law, Employment and Civil Litigation.
Thursday, September 22, 2016
Don't Lose Your Will - Seriously, Don't Misplace Your Last Will and Testament
(And Make Sure it Gets Filed When the Time Comes)
The law 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. The same cases establish that the presumption is subject to being rebutted by circumstances which tend to show a contrary conclusion, 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, 376-77.)
(See also, In re Estate of Weir (1983), 120 Ill. App. 3d 18, 20, 458 N.E.2d 134, 136; In re Estate of Netherton (1978), 62 Ill. App. 3d 55, 57-58, 378 N.E.2d 800, 802.) Factors to be considered in addressing the rebuttal of the presumption include evidence as to statements from the testator that he did not intend to revoke the will, evidence that 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. (See, Moos, 414 Ill. 54, 110 N.E.2d 194; In re Estate of Morgan (1945), 389 Ill. 484, 59 N.E.2d 800; Holler v. Holler (1921), 298 Ill. 418, 131 N.E. 663; In re Estate of Deskins (1984), 128 Ill. App. 3d 942, 471 N.E.2d 1018; Jackson v. Jackson (1971), 132 Ill. App. 2d 66, 268 N.E.2d 62.) 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. Moos, 414 Ill. at 60, 110 N.E.2d at 197; Holler, 298 Ill. at 432, 131 N.E. at 669; St. Mary's Home for Children v. Dodge (1913), 257 Ill. 518, 526, 101 N.E. 46, 49.
Our supreme court has noted that because the evidence with respect to any rebuttal will vary from case to case, other cases "constitute little assistance in [making] the determination" whether the presumption has been overcome. (Morgan, 389 Ill. at 487, 59 N.E.2d at 801; see also Moos, 414 Ill. at 60-61, 110 N.E.2d at 197.)
- Make an instruction sheet for a trusted loved one on what to do in the event of your death. This can be a note or a checklist, and can advise them where the original Will is located, what date it was made, and if an attorney assisted, who that attorney is and how that attorney may be contacted. NOTE: Some lawyers will keep the original Wills for their clients in their safe. While this has been a common practice over the years, and there is strong debate and good arguments for keeping client Wills or for not keeping them, it is my opinion that this practice is trending toward giving the client the Will and therefore, it is the client's responsibility to ensure that it is safe and secured.
- Consider giving a note to your attorney as to where the original Will is located, that can be placed in your client file.
- Keep the original in a sealed envelope, identifying it as the Last Will of [Testator].
- Put the Will in a safe location, such as a safe, fireproof locked storage, safety deposit box, or other location.
- If you have a copy, keep that in another secure location.
- Consider a sticky note on the envelope indicating that the Will must be filed within 30 days of the date of death in the County where the decedent resided at the time of death. NOTE: This may be a different requirement in other states under that state's Probate Act.
- Also, bear in mind that only trusted persons should have this information. Sadly, some may not honor your wishes, or be disappointed with what you have in the Will. Another consideration is to have more than one trusted person have that information such that there is a "check and balance" between these two to make sure that your Will is filed properly and not altered, lost or destroyed.
- Naturally, these are just suggestions. Ultimately, you need to do what you think is best for your particular situation, and as always, consult your attorney for more information.