In re Estate of Frakes , 2020 IL App (3d) 180649 ( 2020 )

Digitally signed by
Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2020.06.08
13:45:12 -05'00'
In re Estate of Frakes, 2020 IL App (3d) 180649Appellate Court In re ESTATE OF WALTER DEAN FRAKES, Deceased (Walter
Caption Doyle Frakes, Executor, Petitioner-Appellee, v. Emily A. Thieme,
Abigail C. Schneider, and William H. Thieme, Respondents-
Appellants).
District & No. Third District
No. 3-18-0649
Filed January 29, 2020
Decision Under Appeal from the Circuit Court of Tazewell County, No. 17-P-116; the
Review Hon. Kirk D. Schoenbein, Judge, presiding.
Judgment Affirmed.
Counsel on Nicholas P. Hoeft, of Jostock & Jostock, P.C., of Chicago, for
Appeal appellants.
Christopher J. Spanos, of Westervelt, Johnson, Nicoll & Keller, LLC,
of Peoria, for appellee.
Panel JUSTICE SCHMIDT delivered the judgment of the court, with
opinion.
Justices Holdridge and O’Brien concurred in the judgment and
opinion.
OPINION
¶1 Petitioner, Walter Doyle Frakes, filed to have a conformed copy of decedent’s will
admitted to probate. Respondents, Emily A. Thieme, Abigail C. Schneider, and William H.
Thieme, filed a motion for summary judgment, asking that the will be denied admission to
probate. Petitioner filed a cross-motion for summary judgment. The trial court ruled in favor
of petitioner, admitting the will to probate. Respondents appeal.
¶2 I. BACKGROUND
¶3 Decedent executed the currently disputed version of his last will and testament on October
31, 2011. Attorney Jack Boos prepared the will and witnessed its execution along with his
employee, Laurie Rollet, at decedent’s place of business. Boos and Rollet then departed from
decedent’s office, leaving the original will behind. Boos created a conformed copy of the
October 2011 will for his records once he returned to his office, but no copies of the executed
will were made. Per the terms of the conformed copy, the October 2011 will revoked all prior
wills.
¶4 In May 2013, decedent reported a burglary at his home to the local police department.
Officer Sean Kozak of the Washington Police Department responded. Decedent informed
Kozak that multiple items had been stolen from his safe. Among the contents reported stolen
were $50,000 in cash, the deed to decedent’s home, the title to his vehicle, three gold bracelets,
two gold necklaces, and “his will.” Decedent later contacted Kozak to amend the dollar amount
of cash stolen to $80,000. Kozak believed that when the decedent told him that “his will” was
stolen, he was referring to his current will. Kozak submitted to an evidence deposition in
relation to this case. Kozak stated that in preparation for the deposition, he reviewed the report
of the incident that he recorded the day of the incident. Kozak did not have any independent
recollection of the incident prior to reviewing the report he had prepared.
¶5 Decedent passed away approximately four years later, on March 12, 2017. Petitioner filed
the instant action to have a conformed copy of the will admitted to probate the following April.
Petitioner then amended the pleadings in June and November of the same year.
¶6 Respondents filed a motion for summary judgment seeking to prevent the will from being
admitted to probate. Respondents never requested the trial court hold an evidentiary hearing.
Petitioner responded and filed a cross-motion for summary judgment seeking to admit the will
to probate. Petitioner attached to his motion Kozak’s evidence deposition, as well as affidavits
from Boos and Rollet. Boos and Rollet both attested to being present when the will was signed,
that the conformed copy of the will was an exact copy of the document they witnessed decedent
execute, and that decedent was of sound mind when he executed the will.
¶7 Petitioner submitted an additional affidavit of Boos to the court. Boos attested that he was
the long-time attorney of the decedent and remained his attorney until decedent’s passing.
-2-
During this time, he drafted at least three versions of decedent’s last will and testament.
Further, since the October 2011 will was executed at decedent’s place of business, no copy
was made. However, Boos returned to his office and conformed a copy of the will, by hand, to
be consistent with the executed version. Boos stated the conformed version was attached to the
amended petition and that decedent did not have him prepare another will after October 31,
2011.
¶8 The trial court heard oral arguments on the cross-motions. The gravamen of respondents’
argument was that the presumption of revocation associated with lost wills applied in this case,
and even if decedent’s will had been stolen, he had acquiesced to what amounted to revocation
by theft because of the four-year lapse in time between the theft and his passing. Respondents
also argued that there was a genuine issue of material fact regarding whether the will stolen
from the safe was decedent’s operative will. Moreover, there was a brief argument regarding
whether Kozak’s statements made during the evidence deposition satisfied a hearsay
exception. Petitioner argued the presumption of revocation should not apply, and even if it did,
the court had been provided sufficient evidence to overcome that presumption.
¶9 The court took the matter under advisement and subsequently issued a memorandum of
decision granting the petitioner’s motion for summary judgment. The court found, in pertinent
part, that the “following facts are not contested or disputed by contrary factual assertions as
opposed to argument or speculation”: (1) prior to the May 2013 theft, decedent never revoked
the October 2011 will by any of the prescribed, statutory methods of revocation, and never
executed another will; (2) decedent never executed another will after the theft of “his will”;
(3) the conformed copy produced by petitioner is an accurate copy of the October 2011 will
and is the only evidence of the will’s content; and (4) prior to the burglary in May 2013,
decedent never reported the October 2011 will lost or stolen.
¶ 10 The court ruled that decedent’s reference to “his will” when describing items stolen from
his safe to police compelled the inference that decedent was referring to his October 2011 will,
especially in the absence of contradicting evidence. The possibilities advanced by respondents
were mere conjecture and were not properly considered when ruling on a motion for summary
judgment. The court found that decedent’s statements to police fell into an exception to hearsay
promulgated by Illinois Rule of Evidence 803(3)(A) (eff. Apr. 26, 2012). The court also agreed
with petitioner that the presumption of revocation should not apply to stolen wills and, even if
it did, the uncontested facts established that there was no genuine issue of material fact that
decedent did not destroy his will.
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 On appeal, respondents advance three main arguments. Respondents’ main contentions are
(1) summary judgment was not proper due to the existence of genuine issues of material fact,
(2) statements in Kozak’s evidence deposition are barred by the rules against hearsay, and
(3) the trial court failed to properly apply the presumption of revocation pertaining to lost and
missing wills. Petitioner insists the lower court did not err and requests we affirm its judgment.
-3-
¶ 14 A. Summary Judgment
¶ 15 Respondents first contend that the trial court erred in granting summary judgment and,
instead, an evidentiary hearing should have been held. Respondents argue that the trial court’s
factual findings are in contravention of well-established Illinois law: that when viewed in the
light most favorable to the nonmovant, the factual findings are unsupported. Petitioner argues
that respondents merely rely on unsupported speculation, opinions, and conclusions in an
attempt to raise a genuine issue of material fact.
¶ 16 The purpose of summary judgment is not to try a question of fact but to determine if one
exists. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Summary judgment
is appropriate when “the pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2016). In
reviewing a motion for summary judgment, a court must construe the pleadings, depositions,
admissions, and affidavits strictly against the moving party and liberally in favor of the
nonmoving party to determine whether a genuine issue of material fact exists. Cohen v.
Chicago Park District, 2017 IL 121800, ¶ 41 (Kilbride, J., dissenting). Unsupported
conclusions, opinions, or speculation are insufficient to raise a genuine issue of material fact.
Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 132 (1992); Illinois
Valley Minerals Corp. v. Royal-Globe Insurance Co., 70 Ill. App. 3d 296, 300 (1979).
¶ 17 When examining a grant of summary judgment, this court considers anew the facts and law
related to the case to discern whether the trial court’s disposition of the matter was appropriate.
Jackson v. Graham, 323 Ill. App. 3d 766, 779 (2001). This court reviews the trial court’s
judgment, not its reasoning, and may affirm that judgment on any grounds called for in the
record. City of Chicago v. Holland, 206 Ill. 2d 480, 492 (2003). We review a grant of summary
judgment de novo. Id. at 487.
¶ 18 Respondents initially filed a motion for summary judgment with petitioner responding in
kind, inviting the trial court to decide the case as a matter of law. See Oswald v. Hamer, 2018
IL 122203, ¶ 9 (“When parties file cross-motions for summary judgment, they mutually agree
that there are no genuine issues of material fact and that the case may be resolved as a matter
of law.”). Respondents at no time requested an evidentiary hearing before the court.
¶ 19 If respondents would have petitioned the trial court to hold an evidentiary hearing instead
of hastily moving for summary judgment, they would have been entitled to one. See In re
Estate of Koziol, 366 Ill. App. 3d 171, 177 (2006). Their haste eliminated that entitlement.
However, the filing of cross-motions does not preclude a court from finding that a triable issue
of fact exists. Pielet v. Pielet, 2012 IL 112064, ¶ 28.
¶ 20 While it has been held that the filing of a motion for summary judgment in the lower court
precludes a claim of error by the moving party based on genuine issues of material fact, we
will nonetheless assess respondents’ arguments because we have an independent duty to
determine if a genuine issue of material fact exists. See Chicago Board Options Exchange, Inc.
v. International Securities Exchange, L.L.C., 2012 IL App (1st) 102228, ¶ 50 (“As both sides
contended below that no disputed facts remain, we will not entertain [appellant’s] belated claim
to the contrary.”); Pielet, 2012 IL 112064, ¶ 28 (“mere filing of cross-motions for summary
judgment does not establish that there is no issue of material fact”).
¶ 21 Respondents assert it was error for the court to find that the will in decedent’s safe reported
stolen in May 2013 was his then-current will. Respondents offer no evidence that contradicts
-4-
the assertion and evidence that decedent’s will was stolen. Instead, they merely assert that the
fact is contested while relying on speculation and conjecture. After reviewing the record, the
only reasonable inference to draw from the decedent’s statement “his will” was stolen is that
decedent’s current will was in the safe and was stolen. Common sense dictates that someone
would not report a previous, revoked version of his or her will stolen, or even keep it in a safe.
Even if he did, it seems highly unlikely that he would describe a revoked will as “his will.”
Additionally, there is a reasonable inference that if decedent had placed his previous wills in
the safe that was burglarized, he would have followed suit and placed the October 2011 will in
the safe. Allegations that genuine issues of material fact exist without evidence to support those
allegations fail to create an issue of material fact. Illinois Valley Minerals Corp., 70 Ill. App.
3d at 300. Respondents offer no evidence of an intent by decedent to revoke the October 2011
will, simply relying on their pleadings when faced with evidence that shows a contrary
conclusion.
¶ 22 Respondents argue that the trial court was required to construe facts concerning the
whereabouts of the allegedly missing will in the light most favorable to them. It is an accurate
statement of law to say that the trial court was required to construe facts in the light most
favorable to the nonmovant, but the trial court was not required to make unreasonable
inferences or ignore reasonable ones when ruling on a motion for summary judgment. Thede
v. Kapsas, 386 Ill. App. 3d 396, 401 (2008). Respondents also ignore the fact that both they
and petitioner were moving parties. The trial court did not err in finding the will stolen from
decedent’s safe was the October 2011 will.
¶ 23 Next, respondents enumerate and take issue with facts the trial court found to be
uncontested and undisputed, specifically that (1) decedent never revoked his will pursuant to
statute, (2) decedent never executed another will before or after the theft, (3) decedent never
lost his will, (4) decedent never reported the will stolen prior to the theft, and (5) the conformed
copy of the will is the only evidence of the will’s contents.
¶ 24 Respondents support their contentions by stating,
“This Court’s review of the record will reveal that the so-called undisputed facts
are neither uncontested nor are they even supported by actual undisputed facts.
Moreover, it will discover that the so-called undisputed facts are not even facts at all,
but rather, inferences drawn from the absence of facts.”
This vague assertion does not bring to our attention any revelations of consequence. In making
this argument, respondents completely ignore the testimony of Kozak and affidavit from
decedent’s long-time attorney Boos. Again, while the trial court was required to view the
pleadings in the light most favorable to the nonmoving party, this did not preclude the court
from drawing reasonable inferences in favor of petitioner since both petitioner and respondents
were “the moving parties.” Further, respondents rely on speculation, opinion, and unsupported
conclusions in order to raise a material issue of genuine fact. Petitioner has submitted evidence
to support the conclusions he requested the court to reach; respondents did not. Respondents
do not offer even a scintilla of evidence the court could use to reach alternative findings and
our review of the record does not provide any. Moreover, as noted above, even if the trial court
erred in making its factual findings that does not preclude us from affirming its judgment. See
Jackson, 323 Ill. App. 3d at 779; Holland, 206 Ill. 2d at 492.
¶ 25 There was evidence submitted that decedent’s will was stolen. Once the will was stolen,
this precluded revocation by “burning, cancelling, tearing or obliterating.” 755 ILCS 5/4-7
-5-
(West 2016). The affidavit of Boos stated that he was the long-time attorney of the decedent
and maintained that role until the decedent’s demise. After the October 2011 will was executed,
Boos prepared no other wills for decedent revoking previous versions. Respondents provided
no other wills or documents to the trial court that run contrary to the evidence provided by
petitioner. There is no evidence that decedent revoked his will and probative evidence to the
contrary. Petitioner submitted a conformed copy of the will to the court, along with the
affidavits of the two attesting witnesses. No evidence was presented by respondents.
¶ 26 As a final attempt at creating a genuine issue of material fact, respondents argue there are
questions as to the contents of the October 2011 will and the process used to execute it. In
order to clarify these issues, they insist it is necessary to illicit testimony from Boos and Rollet
via cross-examination.
¶ 27 Respondents’ haste in litigating this matter precludes them from making this argument with
any sort of seriousness. They were free to depose Boos and Rollet when faced with petitioner’s
cross-motion for summary judgment; they requested neither discovery nor an evidentiary
hearing. Petitioner provided the evidence necessary for the will to be admitted to probate. See
In re Estate of Nicola, 275 Ill. App. 3d 497, 499 (1995) (acknowledging if two attesting
witnesses state that they were present when testator signed will or acknowledged his signature
upon will, that they signed as witnesses in presence of testator, and that they believed testator
to be of sound mind at time of execution, will must be admitted to probate); In re Estate of
Moos, 414 Ill. 54, 57 (1953) (unavailable will may be admitted to probate if shown to be
destroyed accidentally or fraudulently without consent of testator); 755 ILCS 5/6-4 (West
2016).
¶ 28 In light of the cross-motions for summary judgment, we find no genuine issue of material
fact that would have precluded judgment as a matter of law.
¶ 29 B. Hearsay Exception
¶ 30 Respondents next argue Kozak’s evidence deposition testimony regarding decedent’s
statements about his will were inadmissible hearsay. They also assert there is a second layer of
hearsay that must be overcome because Kozak’s memory was refreshed using the report he
prepared after the incident. Petitioner avers that the decedent’s statements to Kozak fall within
an exception to the prohibition against hearsay pursuant to Illinois Rule of Evidence 803(3)(A)
(eff. Apr. 26, 2012) and that Kozak’s refreshed recollection constituted admissible testimony.
¶ 31 The rule against hearsay prohibits the introduction of out-of-court statements that are
offered to prove the truth of the matter for which they purport to assert. People v. Peterson,
2017 IL 120331, ¶ 17. However, “[a] statement that is hearsay may be admissible if it satisfies
an exception recognized by Illinois common law or an exception provided by statute.” In re
Estate of Holmgren, 237 Ill. App. 3d 839, 842-43 (1992). When double hearsay is sought to be
admitted as substantive evidence, both layers must fall within an exception to the hearsay rule
in order to be considered. Horace Mann Insurance Co. v. Brown, 236 Ill. App. 3d 456, 461
(1992).
-6-
¶ 32 1. First Layer of Hearsay From Decedent to Kozak
¶ 33 Illinois Rule of Evidence 803(3) provides,
“The following are not excluded by the hearsay rule, even though the declarant is
available as a witness:
***
(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the
declarant’s then existing state of mind, emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental feeling, pain, and bodily health), but
not including:
(A) a statement of memory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation, identification, or terms
of declarant’s will[.]” (Emphasis added.) Ill. R. Evid. 803(3)(A) (eff. Apr. 26,
2012).
¶ 34 When the decedent described to Kozak the items contained in the safe, he was clearly doing
so for the purpose of identification. The decedent’s statement evidenced he believed in that
moment that his will was among the items stolen from the safe. Additionally, by identifying
his will as stolen, decedent laid bare the absence of an intent to revoke the will. Therefore,
while hearsay, the statements fall within a statutory exception.
¶ 35 Respondents contend that these statements being admissible under Rule 803 hinges on the
assumption of one dispositive fact: that the will decedent was describing to Kozak was the
October 2011 will. However, as we found above decedent was, in fact, talking about the
October 2011 will. Supra ¶ 21. The statements from decedent to Kozak are admissible under
an exception to hearsay.
¶ 36 2. Second Layer of Hearsay,
Use of Police Report to Refresh Recollection
¶ 37 Kozak, during his evidence deposition, acknowledged that he did not have an independent
recollection of the incident; his memory was refreshed by a report he made the same day of
the occurrence. Respondents argue (1) since a police report refreshed Kozak’s recollection, his
statements are inadmissible hearsay, and (2) after reading the police report Kozak had no
independent recollection of the incident.
¶ 38 A witness may refer to documents to refresh his recollection prior to testifying. People v.
Cantlin, 348 Ill. App. 3d 998, 1003 (2004). However, the witness must then testify from his
independent recollection. Id. The extent to which the documents actually refreshed the
witness’s recollection goes to the weight, not the admissibility, of his testimony. Corrales v.
American Cab Co., 170 Ill. App. 3d 907, 911 (1988). Police reports are generally inadmissible
as substantive evidence but may be used to refresh a witness’s recollection so long as the report
is not merely read into evidence. Baumgartner v. Ziessow, 169 Ill. App. 3d 647, 655-56 (1988).
¶ 39 We note that respondents did not argue this second layer of hearsay in their initial brief but
instead advanced the argument in their reply brief; therefore, this contention has been waived.
See People v. English, 2011 IL App (3d) 100764, ¶ 22 (“ ‘A contrary practice would permit
appellants to argue questions in their reply briefs as to which counsel for appellees would have
no opportunity to reply.’ ”).
-7-
¶ 40 Even if not waived, the use of the police report to refresh Kozak’s memory alone does not
make the testimony inadmissible. See Baumgartner, 169 Ill. App. 3d at 655. Further, Kozak
reviewed the police report before the deposition and admitted that he had no independent
recollection of meeting with decedent on the day of the burglary prior to reading the report.
There is no indication the report was in front of Kozak during the deposition; he was not merely
reading it into the record. He was testifying from his refreshed recollection, having reviewed
the document prior to the deposition. Even in the absence of waiver, the testimony of Kozak
as a refreshed recollection is not barred by the rules against hearsay. See id.
¶ 41 C. Presumption of Revocation and Stolen Wills
¶ 42 The common theme that permeates all of respondents’ arguments on appeal is that the trial
court misapplied the presumption of revocation in the instant case. This misapplication
thereafter lingered, tainting the trial court’s findings of fact and grant of summary judgment.
Respondents assert that the presumption applies in this case. Petitioner argues the presumption
should not apply to stolen wills.
¶ 43 In Illinois, the revocation of a will is prescribed by statute. 755 ILCS 5/4-7(a)(1)-(4) (West
2016). A will can only be revoked
“(1) by burning, cancelling, tearing or obliterating it by the testator himself or by some
person in his presence and by his direction and consent, (2) by the execution of a later
will declaring the revocation, (3) by a later will to the extent that it is inconsistent with
the prior will or (4) by the execution of an instrument declaring the revocation and
signed and attested in the manner prescribed by this Article for the signing and
attestation of a will.” Id.
¶ 44 In addition to the statutory methods of revocation, it has long been established, where a
last will and testament, after its execution, is retained in the exclusive control of the decedent
and upon his or her death cannot be found, a presumption arises that the decedent destroyed
the will animo revocandi. Taylor v. Pegram, 151 Ill. 106, 116 (1894); Moos, 414 Ill. at 57;
In re Estate of Millsap, 55 Ill. App. 3d 749, 750 (1977); In re Estate of Babcock, 119 Ill. App.
3d 482, 488-89 (1983). The rationale for this presumption appears to stem from the inherent
ignorance a court would face concerning the testator’s intent regarding the will and whether
any physical acts were visited upon the will manifesting that intent. Given this ignorance,
courts have found it best to presume the will was revoked and place the burden on the
proponent to prove otherwise. See Moos, 414 Ill. at 57.
¶ 45 The cases in this vein also establish that the presumption is rebuttable by circumstances
that tend to show a contrary conclusion. In re Estate of Morgan, 389 Ill. 484, 487 (1945).
Factors to be considered in addressing the rebuttal of the presumption include evidence that
shows “an attitude of mind and statements of the testator not only inconsistent with such
revocation but contrary to it” (id. at 489), statements the decedent did not intend to revoke the
will, and evidence of other individual’s access to the will prior to death. In re Estate of Strong,
194 Ill. App. 3d 219, 226 (1990). “[I]t is not necessary that the court be able to determine what
happened to a will if there is evidence that indicates it was not revoked or cancelled by the
testator.” Morgan, 389 Ill. at 487. Again, the burden is on the proponent of the will to prove
that the testator did not revoke the will prior to his death. Moos, 414 Ill. at 57.
-8-
¶ 46 1. Application of Presumption of Revocation
¶ 47 We note that the parties do not cite to any Illinois authority directly on point concerning
the application of the presumption of revocation to stolen wills, and our research does not
reveal any. In addressing this matter, the parties instead present to us authority from other
jurisdictions that have resolved this issue. See In re Will of Roman, 194 A.2d 40, 42 (Hudson
County Ct. 1963) (finding presumption of revocation did not apply in light of testimony
proving will was stolen); In re Estate of McCaffrey, 309 A.2d 539, 541-42 (Pa. 1973) (finding
presumption did not apply where record revealed will was stolen); In re Estate of Simmons,
No. 01A01-9608-PB-00366, 1997 WL 718399, at *5 (Tenn. Ct. App. Nov. 19, 1997) (finding
presumption of revocation applied to stolen will but was rebutted by clear and convincing
evidence).
¶ 48 The trial court here found, given the circumstances, the presumption should not apply. In
the alternative, even if the presumption did apply, it had been rebutted. We find that the
presumption of revocation applies to all missing wills, even those claimed stolen. Trial courts
should presume all missing wills as revoked, applying the presumption until such time as
sufficient proof is presented evidencing the theft or the lack of intent by decedent to revoke or
cancel the will. Applying the presumption where theft is alleged is an exercise in prudence.
The allegation of theft alone is inadequate to insulate the proponent of a will from the
presumption. Requiring the proponent to rebut the presumption of revocation by presenting
sufficient evidence that the decedent, in fact, did not revoke or cancel the will or the will was
stolen is in the best interest of an ordered means of probate.
¶ 49 There are two necessary predicates for the presumption to apply. First, the will must be last
traced to the decedent’s possession. Morgan, 389 Ill. at 489. Second, the will must be unable
to be located after decedent’s death. Id. Boos states in his affidavit that he left the will in the
possession of the decedent. Thereafter, there is testimony by Kozak that decedent reported his
will stolen. Once decedent’s effective will was stolen, it could not have been last traced to his
possession. Evidence that the missing will was stolen rebuts the presumption.
¶ 50 2. Revocation of Will by Acquiescence to Theft
¶ 51 Respondents also argue that by failing to take action after the will was stolen, decedent
essentially acquiesced to revocation of his will via theft. Petitioner argues that this proposition
is a perversion of the law and finds no support in our jurisprudence.
¶ 52 As described above, revocation of a will is controlled by statute absent the presumption
that arises from lost or missing wills. Supra ¶¶ 43-44. The essence of the statutory means of
revocation include the intent of the testator to revoke the will and a physical act to manifest
that intent. In re Estate of Davies, 5 Ill. App. 3d 15, 16 (1972); 755 ILCS 5/4-7 (West 2016).
When a will is stolen, intent on behalf of the testator to revoke is absent. When the decedent
reports his or her will stolen, it further evidences the lack of intent to revoke. Theft of a will
does not include an affirmative act on the part of the decedent.
¶ 53 Respondents request that we find decedent’s failure to act after his will was stolen
tantamount to revocation. This is a departure from the text and spirit of the statutory means of
revocation. See Board of National Missions of the Presbyterian Church v. Sherry, 372 Ill. 272,
278 (1939) (“An intention to revoke a will, unaccompanied by at least one of the acts
prescribed by the statute and executed in compliance therewith, is insufficient.”). The
modalities of revocation are creatures of statute and are best left to modification by the
-9-
legislature. See In re M.M., 156 Ill. 2d 53, 69 (1993) (“Any alteration to the statute, regardless
of any perceived benefit or danger, must necessarily be sought from the legislature.”). We will
not create a new method outside of the means provided. As such, the decedent could not have
acquiesced to the theft of his will resulting in revocation.
¶ 54 In addition, to impose a duty on the victim of a crime to execute a new will or risk
revocation of the stolen will, rewards the thief at the expense of the victim. To allow thieves
the ability to revoke wills while placing the burden and expense on victims to prevent the
revocation fails to serve any cognizable public policy interest. According to the record,
decedent had prepared at least three wills throughout his lifetime. To find that his estate must
now pass intestate because the last executed version of his will was stolen is illogical.
¶ 55 Accordingly, the presumption of revocation applies to all missing wills, and petitioner
rebutted the presumption by providing evidence that established decedent did not revoke his
will.
¶ 56 III. CONCLUSION
¶ 57 For the foregoing reasons, we affirm the judgment of the circuit court of Tazewell County.
¶ 58 Affirmed.
- 10 -