Taxation & Estate Planning

Details on Formal Proof of Will

By Joel A. Schoenmeyer

I blogged here about the basics involved in a formal proof of Will. Just a couple of practice notes:

-Formal Proof of Will usually means hauling the witnesses to the Will into court, to testify about the following (each of which relates to a specific technical requirement for validity of a Will):

1. Were you present when the testator sign his/her Will?

2. Was another witness present when the testator signed his/her Will?

3. Did you sign the Will as witness in the presence of the testator?

4. Did the other witness sign the Will as witness in the present of the testator?

5. Did you believe the testator to be of sound mind and memory at the time of signing?

This should cover most everything, although there are some different questions to ask if the testator didn't sign the Will but instead directed another person to sign on his/her behalf (which is allowable in some cases). That's obviously a pretty rare occurrence, though.

-What if a witness can't make it to court? Maybe the witness is out of state/country, or is too sick to appear. In that case, section 6-5 of the Illinois Probate Act allows a petition for the court to issue what's called a commission. This allows for the deposition of the witness outside of court. Cook County has PDF forms for this:

1. Petition for Deposition of Witness

2. Commission

3. Deposition

Full post as published by Death and Taxes Blog on January 14, 2009 (boomark / email).