Background
Warren A. Rogers Sr. executed a will in 1992 leaving his estate to his wife, Karen Wein Rogers. The drafting attorney retained the original for safekeeping, while Rogers received photocopies and gave one to Karen. The original was inadvertently destroyed in a 1996 flood at the attorney’s office. No will or photocopy was found among Rogers’s effects after his 2017 death.
Karen petitioned to admit her photocopy to probate, and the Kane County circuit court admitted it and appointed her executor. Rogers’s son Daniel later petitioned to have the will declared revoked, arguing that the missing photocopy once held by Rogers triggered a presumption that he had revoked the will. The circuit court struck one allegation under the Dead-Man’s Act and dismissed the petition under section 2-615.
The Court’s Holding
The appellate court affirmed. Illinois’s presumption of revocation applies only when a will was traced to the decedent’s possession and cannot be found after death. Because the original will remained in the attorney’s exclusive possession until its accidental destruction, Rogers never possessed the original, so the presumption did not arise.
The missing document in Rogers’s possession was only a photocopy, not an executed duplicate original. A photocopy lacks original signatures and witness attestations and therefore is not a “will” capable of revocation under the Probate Act. Rogers’s knowledge that the original had been destroyed, and his failure to execute another will, did not establish revocation. The court did not reach the Dead-Man’s Act issue because any error in striking the allegation would not alter the result.
Key Takeaways
- A missing-will presumption requires that the original will have been in the testator’s possession.
- The disappearance of an unsigned, unattested photocopy does not create a presumption of revocation.
- Accidental destruction of an original held by someone else, followed by inaction by the testator, is not statutory revocation.
Why It Matters
The decision distinguishes executed duplicate originals from ordinary photocopies in Illinois will-revocation disputes. A copy may serve as evidence of a missing original for probate purposes, but that does not give it the legal status of a will for revocation purposes.
This Rule 23(b) order is nonprecedential except as permitted by Illinois Supreme Court Rule 23(e)(1).