Friday, May 30, 2008
Assume that you have prepared Client’s will and you have retained the original will in your firm’s safe deposit box. Client then executes a subsequent will. What should you do with the “old original.”
This is the topic of a recent article by Helen Gunnarsson entitled Where there are two wills, is there a way?, 96 Ill. B.J. 232 (2008). Here is an excerpt from her article:
755 ILCS 5/6-1(a) provides in relevant part that "[i]mmediately upon the death of the testator any person who has the testator's will in his possession shall file it with the clerk of the court of the proper county...." Subsection (b) provides that a person who willfully secretes a will for 30 days after learning of the testator's death may, upon conviction, be sentenced as in cases of theft of property classified as a class 3 felony.
Most lawyers who participated in the discussion expressed no doubt about the proper procedure under the statute. Oak Park lawyer Joel Schoenmeyer said, "I seem to recall a Judge...addressing this in his courtroom by telling an attorney that he was under a duty to file all [w]ills made by the decedent, because it was the court's job to decide which was the valid one. Since then I've always gone by the adage 'File 'em all and let God (the Judge) sort 'em out.'" * * *
But other lawyers differed, noting that subsection (a) of the paragraph cited speaks of "the" will, and not, for example, "an original" will. "I don't think a person can have more than one will," opined Salem lawyer Curt Ferguson.
Noting that "[p]rior wills are (almost universally) revoked by subsequent wills," Chicago lawyer Thomas W. Williams agreed. "Prior wills are no longer wills. There is only one 'Last Will and Testament.'" * * *
But, wondered South Holland lawyer Scott Dillner, "why wouldn't you, with the client's permission of course, rip up the old will upon signing a new one?" Good question, agrees Schoenmeyer, who says he counsels all of his estate planning clients to do just that.