                        Illinois Official Reports

                               Appellate Court



                  In re Estate of Brewer, 2015 IL App (2d) 140706



Appellate Court    In re ESTATE OF TYLER B. BREWER, Deceased (Hannah Brewer,
Caption            Petitioner-Appellant, v. Todney B. Brewer, Executor and Legatee,
                   Jourdan Brewer, Heir, and Erin E. Walsh, Guardian ad litem,
                   Respondents-Appellees).




District & No.     Second District
                   Docket No. 2-14-0706




Filed              June 17, 2015




Decision Under     Appeal from the Circuit Court of Winnebago County, No. 13-P-387;
Review             the Hon. Lisa R. Fabiano, Judge, presiding.




Judgment           Affirmed.




Counsel on         Kevin W. Bruning and A. Kathleen Barauski, both of Bruning &
Appeal             Associates, P.C., of Crystal Lake, for appellant.

                   Alexander J. Mezny, of Holmstrom & Kennedy, P.C., of Rockford, for
                   appellee Todney B. Brewer.
     Panel                     JUSTICE BIRKETT delivered the judgment of the court, with
                               opinion.
                               Presiding Justice Schostok and Justice Jorgensen concurred in the
                               judgment and opinion.




                                                 OPINION

¶1         This is an appeal from an order of the circuit court of Winnebago County granting a
       motion to dismiss a petition to contest the validity of a will. The sole issue on appeal is
       whether the petition alleged sufficient facts to establish that the will had been revoked in
       accordance with the relevant provisions of the Probate Act of 1975 (Probate Act) (755 ILCS
       5/4-7 (West 2012)). For the reasons that follow, we affirm.

¶2                                           I. BACKGROUND
¶3         Tyler B. Brewer died on July 17, 2013. At the time of his death, he had two heirs,
       Hannah Brewer and Jourdan Brewer. On September 12, 2013, the last will and testament of
       Tyler Brewer, dated December 1, 1999, was admitted to probate. Todney Brewer, Tyler’s
       brother, was named executor of the will.
¶4         On March 11, 2014, Hannah filed a petition to contest the validity of the will. In her
       petition, Hannah alleged:
               “On or about September 22, 2012, in contemplation of his impending death and with
               the intention to revoke the Alleged Will, Tyler cancelled a copy of the Alleged Will
               by signing the first page, striking through material provisions of the copy, and writing
               ‘As of 9/22/12, This will is void. I am working on a new one that includes both
               Hannah & Jordan [sic].’ On information and belief, [a] true and correct copy of the
               cancelled copy is attached hereto as ‘Exhibit A.’ ”
       Hannah alleged that Tyler wrote the initials “ ‘TB’ ” on the document and that such writing
       was intended to be his signature. Hannah further alleged that, on or about September 22,
       2012, Tyler’s original will was “lost, misplaced, or otherwise not in the possession of Tyler.”
       Hannah attached a copy of the purportedly cancelled will to her petition as Exhibit A. Exhibit
       A reveals that Tyler purportedly cancelled an unsigned and unattested copy of the will.
       Hannah asked the court to declare the will invalid, to find that Tyler died intestate, to revoke
       the order appointing Todney as executor, to appoint an administrator of the estate, and to
       order supervised administration of the estate.
¶5         Todney, as executor and legatee, moved to dismiss the petition to contest the validity of
       the will, arguing that the petition failed to allege sufficient facts to establish that the will had
       been revoked in accordance with the relevant provisions of the Probate Act (755 ILCS 5/4-7




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       (West 2012)).1 In his motion to dismiss, Todney argued (1) that the writing on the copy of
       the will was insufficient to cancel the will, and (2) that an attempt to cancel a copy of a will
       is insufficient as a matter of law.
¶6          In response, Hannah first argued that the court should stay the proceedings and allow her
       to conduct discovery, because facts material to determining the effectiveness of the alleged
       cancellation were at all times in the exclusive custody of Todney. In the alternative, Hannah
       argued that Todney’s motion should be denied, because (1) the markings on the copy of the
       will were sufficient to cancel the will, and (2) Todney failed to meet his burden of proving
       that, under the circumstances, cancellation of a copy of the will was impermissible.
¶7          The trial court granted the motion to dismiss “on the basis that markings on an unattested
       copy of a will are insufficient to cancel an original will” and it specifically declined to
       address the issue of “whether the markings on the copy of the will are sufficient to support
       cancellation.” The court found no just reason to delay enforcement or appeal of its order
       under Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010).
¶8          Hannah timely appealed.

¶9                                              II. ANALYSIS
¶ 10       As an initial matter, we note that Todney’s motion to dismiss did not designate whether it
       was brought pursuant to section 2-615 or section 2-619 of the Code of Civil Procedure
       (Code) (735 ILCS 5/2-615, 2-619 (West 2012)). A motion to dismiss under section 2-615
       tests the legal sufficiency of the plaintiff’s claim, while a motion to dismiss under section
       2-619 admits the legal sufficiency of the plaintiff’s claim but asserts certain defects or
       defenses outside the pleading that defeat the claim. Patrick Engineering, Inc. v. City of
       Naperville, 2012 IL 113148, ¶ 31; Wallace v. Smyth, 203 Ill. 2d 441, 447 (2002). When a
       moving party fails to designate under which section it seeks dismissal, a reviewing court
       typically reviews the motion according to its grounds, its requests, or its treatment by the
       parties and the trial court. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484 (1994). Here,
       Todney argued in his motion that “[t]he Petition fails to allege sufficient facts to show
       cancellation.” Although he referred, in a footnote, to factual matters not contained in the
       petition, he specifically noted that they were immaterial to the arguments raised in his
       motion. In her response, Hannah argued that, because the motion was directed toward the
       manner in which her petition was pleaded, she would treat it as brought under section 2-615.
       Accordingly, it is clear that Todney sought dismissal under section 2-615 and that the parties
       and the court treated the motion as such.
¶ 11       On review of a dismissal under section 2-615, the question presented is whether the
       allegations of the complaint, when taken as true and viewed in the light most favorable to the
       plaintiff, are sufficient to state a cause of action upon which relief can be granted. Cowper v.
       Nyberg, 2015 IL 117811, ¶ 12. A cause of action should not be dismissed under section
       2-615 unless it is clearly apparent that no set of facts can be proved that would entitle the

           1
            In a footnote, Todney took issue with Hannah’s claim that the original will had been lost or
       misplaced, maintaining instead that it had been found in Tyler’s filing cabinet and filed with the court.
       He also took issue with Hannah’s assertion that Tyler’s death had been “impending,” claiming instead
       that Tyler died unexpectedly in his sleep. Nevertheless, Todney noted that these allegations were
       immaterial to the arguments raised in his motion to dismiss.

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       plaintiff to recovery. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). Dismissals
       under section 2-615 are reviewed de novo. Id. Further, to the extent that we must interpret
       any provision of the Probate Act, we do so de novo. In re Estate of Poole, 207 Ill. 2d 393, 401
       (2003).
¶ 12       “[R]evocation of a will is a matter of intent, an act of the mind of the testator manifested
       by some physical act.” In re Estate of Davies, 5 Ill. App. 3d 15, 16 (1972). To be effective,
       the act that manifests the intent must be one of those described by the Probate Act. In re Will
       of Barrie, 393 Ill. 111, 115-16 (1946). Section 4-7(a) of the Probate Act provides:
               “A will may be revoked only (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.” 755 ILCS 5/4-7(a) (West
               2012).
       Hannah argues that Tyler cancelled his original will by virtue of certain markings that he
       made to a copy of that will. According to Hannah, cancellation of a copy of a will is a
       sufficient manifestation of an intent to cancel an original will if the original will was believed
       to be lost, misplaced, or otherwise not in the testator’s possession.
¶ 13       Taking the allegations of Hannah’s petition as true, we must determine whether Tyler’s
       act in purporting to cancel an unsigned and unattested copy of a will falls within the language
       of section 4-7 of the Probate Act. When we interpret a statute, the cardinal rule is to ascertain
       and give effect to the intent of the legislature. National City Mortgage v. Bergman, 405 Ill.
       App. 3d 102, 109 (2010). “The language of the statute is the best indication of the
       legislature’s intent.” Murray v. Chicago Youth Center, 224 Ill. 2d 213, 235 (2007). The
       statute’s language must be given its plain and ordinary meaning, and we are not free to
       construe the statute in a manner that changes that meaning. Id. If the statutory language is
       clear and unambiguous, we must give effect to that plain and ordinary meaning without
       resorting to other canons or aids of statutory interpretation. Id.
¶ 14       Under the plain language of the Probate Act, only a “will” may be revoked by
       cancellation. Specifically, the Probate Act provides that “[a] will may be revoked only (1) by
       burning, cancelling, tearing or obliterating it.” (Emphases added.) 755 ILCS 5/4-7(a) (West
       2012). The pronoun “it” references the word “will.” A “will” must meet specific statutory
       requirements. Under section 4-3 of the Probate Act, “[e]very will shall be in writing, signed
       by the testator or by some person in his presence and by his direction and attested in the
       presence of the testator by 2 or more credible witnesses.” (Emphasis added.) 755 ILCS
       5/4-3(a) (West 2012). An unsigned will is not a “will.” See In re Estate of Wedeberg, 226 Ill.
       App. 3d 948, 949-50 (1992) (decedent’s name handwritten by decedent at the top of her will
       for purposes of titling the will did not meet the signature requirement of the Probate Act and
       thus will was not valid). An unattested will is not a “will.” See In re Estate of Lum, 298 Ill.
       App. 3d 791, 792-93 (1998) (decedent’s will declared invalid where it was not signed by the
       witnesses). Here, because the will purportedly cancelled by Tyler is an unsigned and
       unattested copy of his original will, it is not a “will” for purposes of section 4-7 of the
       Probate Act. Thus, any act taken by Tyler upon that unsigned and unattested copy does not
       amount to a revocation of the will under the Probate Act.

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¶ 15       Our conclusion is supported by courts of other jurisdictions that have held that a
       revocatory act performed on any photocopy is legally ineffective. See Gushwa v. Hunt,
       2008-NMSC-064, ¶ 20, 145 N.M. 286, 197 P.3d 1 (testator’s act of writing “revoked” across
       the pages of a photocopy of his will was insufficient to revoke the original will); In re Estate
       of Tolin, 622 So. 2d 988, 990 (Fla. 1993) (testator’s destruction of a copy of a codicil, rather
       than the original codicil, was insufficient to revoke the codicil); In re Krieger, 595 N.Y.S.2d
       272, 272 (N.Y. App. Div. 1993) (“a will cannot be revoked by the physical destruction of an
       unexecuted conformed copy”); Estate of Charitou, 595 N.Y.S.2d 308, 311-12 (N.Y. Sur. Ct.
       1993) (holding that the writings upon a photocopy of a will were insufficient to revoke the
       will); In re Estate of Stanton, 472 N.W.2d 741, 747 (N.D. 1991) (“the destruction of an
       unexecuted or conformed copy is ineffectual as an act of revocation regardless of the
       testator’s intent”).
¶ 16       Hannah’s reliance on In re Estate of Holmberg, 400 Ill. 366 (1948), does not warrant a
       different conclusion. There, the supreme court held that “cancellation by a testator of one of
       two duplicate originals of his will cancels and revokes the other duplicate original left in the
       custody of another person.” (Emphasis added.) Id. at 370. The issue was “whether an
       otherwise effective revocation of a will is nullified by the continued existence, in the
       possession of another, of a duplicate original bearing no mark or evidence of revocation.” Id.
       Here, Tyler purportedly cancelled an unsigned and unattested copy, not a duplicate original.
       Unlike in Holmberg, this was not an “otherwise effective revocation.” Id.
¶ 17       The remaining cases relied on by Hannah are similarly inapplicable, because they all
       involved acts done on original wills. See Will of Barrie, 393 Ill. at 123 (the word “ ‘Void’ ”
       was written in various places on the will by the decedent in such a manner as to manifest her
       intent to revoke the will); Noesen v. Erkenswick, 298 Ill. 231, 235 (1921) (writing across and
       upon a part of the signature, the date, the name of the executor, and the devise made by the
       will was effective cancellation); Burton v. Wylde, 261 Ill. 397, 398 (1913) (“When the will
       was produced for probate the signature of the testatrix to the codicil had been cut out with
       some sharp instrument, destroying at the same time certain words that appeared in the
       residuary clause on the other side of the page.”); Estate of Davies, 5 Ill. App. 3d at 16
       (decedent’s declaration of intent to revoke the will, handwritten on face of will, was effective
       revocation); In re Estate of Flynn, 307 Ill. App. 582, 587 (1940) (decedent directed another
       individual to write “ ‘Cancelled 10-28-27’ ” on the margin of her will).
¶ 18       Based on the foregoing, we affirm the order granting Todney’s motion to dismiss. Like
       the trial court, we need not consider whether the markings on the copy of the will otherwise
       would have been sufficient to cancel the will.

¶ 19                                      III. CONCLUSION
¶ 20      For the reasons stated, we affirm the judgment of the circuit court of Winnebago County
       granting Todney’s motion to dismiss Hannah’s petition to contest the validity of the will.

¶ 21      Affirmed.




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