Full Text of SB0730 102nd General Assembly
SB0730ham001 102ND GENERAL ASSEMBLY | Rep. Daniel Didech Filed: 5/10/2021
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| 1 | | AMENDMENT TO SENATE BILL 730
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 730 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Article 1. General Provisions | 5 | | Section 1-1. Short title. This Act may be cited as the | 6 | | Electronic Wills and Remote Witnesses Act. | 7 | | Section 1-5. Purpose. The purpose of this Act is to | 8 | | provide for: (1) the valid execution, attestation, | 9 | | self-proving, and probate of electronic wills, paper copies of | 10 | | electronic wills, and wills attested to by witnesses through | 11 | | audio-video communication; and (2) the valid execution, | 12 | | attestation, and witnessing of documents, other than wills, | 13 | | through audio-video communication. | 14 | | Section 1-10. Applicability. Any document executed under |
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| 1 | | this Act is executed in this State; however, executing a | 2 | | document under this Act does not automatically confer | 3 | | jurisdiction in the courts of this State. | 4 | | Section 1-15. Relation to Probate Act of 1975 and common | 5 | | law. All electronic wills, paper copies of electronic wills, | 6 | | and wills attested to under this Act are subject to all | 7 | | requirements of the Probate Act of 1975 and the common law, but | 8 | | to the extent the common law or any provision of the Probate | 9 | | Act of 1975 conflicts with or is modified by this Act, the | 10 | | requirements of this Act control. | 11 | | Section 1-20. Definitions. As used in this Act: | 12 | | "Audio-video communication" means communication by which a | 13 | | person can hear, see, and communicate with another person in | 14 | | real time using electronic means. A person's visual or hearing | 15 | | impairment does not prohibit or limit that person's use of | 16 | | audio-visual communication under this Act. | 17 | | "Electronic record" means a record generated, | 18 | | communicated, received, or stored by electronic means for use | 19 | | in an information system or for transmission from one | 20 | | information system to another. | 21 | | "Electronic signature" means a signature in electronic | 22 | | form that uses a security procedure under the Electronic | 23 | | Commerce Security Act and attached to or logically associated | 24 | | with an electronic record. |
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| 1 | | "Electronic will" is a will that is created and maintained | 2 | | as a tamper-evident electronic record. | 3 | | "Identity proofing" means a process or service through | 4 | | which a third person affirms the identity of an individual | 5 | | through a review of personal information from public and | 6 | | proprietary data sources, including: (1) by means of dynamic | 7 | | knowledge-based authentication, including a review of personal | 8 | | information from public or proprietary data sources; or (2) by | 9 | | means of an analysis of biometric data, including, but not | 10 | | limited to, facial recognition, voiceprint analysis, or | 11 | | fingerprint analysis. | 12 | | "Paper copy" means a tamper-evident electronic record that | 13 | | is printed and contains the following: (1) the text of the | 14 | | document; (2) the electronic signature of the signer; (3) a | 15 | | readable copy of the evidence of any changes displayed in the | 16 | | electronic record; and (4) any exhibits, attestation clauses, | 17 | | affidavits, or other items forming a part of the document or | 18 | | contained in the electronic record. | 19 | | "Paper document" means a document that is written or | 20 | | printed on paper. | 21 | | "Physical presence" means being in the same physical | 22 | | location as another person and close enough to see and know the | 23 | | other person is signing a document. | 24 | | "Presence" includes: (1) physical presence; or (2) being | 25 | | in a different physical location from another person, but | 26 | | able, using audio-video communication, to know the person is |
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| 1 | | signing a document in real time. | 2 | | "Remote witness" means a person attesting to a document | 3 | | who is in the presence of the signer or testator through | 4 | | audio-video communication. | 5 | | "Rule of law" means any statute, ordinance, common law | 6 | | rule, court decision, or other rule of law enacted, | 7 | | established, or promulgated by this State or any agency, | 8 | | commission, department, court, other authority, or political | 9 | | subdivision of this State. | 10 | | "Signature" includes an electronic signature and an ink | 11 | | signature. | 12 | | "Tamper-evident" means a feature of an electronic record | 13 | | by which any change to the electronic record is displayed. | 14 | | Article 5. Electronic Wills | 15 | | Section 5-5. Signing electronic wills. | 16 | | (a) To be valid under this Act, an electronic will shall be | 17 | | executed by the testator or by some person in the testator's | 18 | | presence and at the testator's direction, and attested to in | 19 | | the testator's presence by 2 or more credible witnesses. | 20 | | (b) The testator may sign the electronic will with the | 21 | | testator's electronic signature or may direct another person | 22 | | in the presence of the testator to sign the electronic will. A | 23 | | person signing at the testator's direction shall not be an | 24 | | attesting witness, a person receiving a beneficial legacy or |
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| 1 | | interest under the will, or the spouse or child of a person | 2 | | receiving a beneficial legacy or interest under the will. | 3 | | (c) Each witness shall sign the electronic will with an | 4 | | electronic signature in the presence of the testator after | 5 | | seeing the testator sign, seeing the testator direct another | 6 | | person in the testator's presence to sign, or seeing the | 7 | | testator acknowledge the signature as the testator's act. | 8 | | (d) If the will is attested to by a remote witness, the | 9 | | requirements for an attestation by a remote witness under | 10 | | Section 15-10 also apply. | 11 | | Section 5-10. Revocation. | 12 | | (a) An electronic will may be revoked in the following | 13 | | ways: | 14 | | (1) execution of a later will declaring the | 15 | | revocation; | 16 | | (2) execution of a later will to the extent that it is | 17 | | inconsistent with the prior will; or | 18 | | (3) execution of a written instrument by the testator | 19 | | declaring the revocation. | 20 | | (b) If there is evidence that a testator signed an | 21 | | electronic will and neither an electronic will nor a certified | 22 | | paper copy of the electronic will can be located after a | 23 | | testator's death, there is a presumption that the testator | 24 | | revoked the electronic will even if no instrument or later | 25 | | will revoking the electronic will can be located. |
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| 1 | | Section 5-15. Digital assets and electronic commerce. | 2 | | (a) At any time during the administration of the estate | 3 | | without further notice or, if there is no grant of | 4 | | administration, upon such notice and in such a manner as the | 5 | | court directs, the court may issue an order under the Revised | 6 | | Uniform Fiduciary Access to Digital Assets Act (2015) for a | 7 | | custodian of an account held under a terms-of-service | 8 | | agreement to disclose digital assets for the purposes of | 9 | | obtaining an electronic will from a deceased user's account. | 10 | | If there is no grant of administration at the time the court | 11 | | issues the order, the court's order shall grant disclosure to | 12 | | the petitioner who is deemed a personal representative under | 13 | | the Revised Uniform Fiduciary Access to Digital Assets Act | 14 | | (2015). | 15 | | (b) Except as specified in this Act, the Electronic | 16 | | Commerce Security Act does not apply to the execution or | 17 | | revocation of an electronic will. | 18 | | Article 10. Certified Paper Copies | 19 | | Section 10-5. Certified paper copy. Where a rule of law | 20 | | requires information to be presented or retained in its | 21 | | original form, or provides consequences for the information | 22 | | not being presented or retained in its original form, that | 23 | | rule of law is satisfied by a certified paper copy of the |
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| 1 | | electronic record. | 2 | | Section 10-10. Creation of a certified paper copy. | 3 | | (a) A certified paper copy is a paper copy of an electronic | 4 | | record that has been certified by the person who converts the | 5 | | electronic record to a paper copy. | 6 | | (b) The person certifying a paper copy shall state the | 7 | | following: | 8 | | (1) the date that the person prepared the paper copy; | 9 | | (2) the name of the person who prepared the paper | 10 | | copy; | 11 | | (3) the date that the person who prepared the paper | 12 | | copy came into possession of the electronic record; | 13 | | (4) a description of how the person who prepared the | 14 | | paper copy came into possession of the electronic record; | 15 | | (5) confirmation that the paper copy is a complete and | 16 | | correct copy of the electronic record; and | 17 | | (6) confirmation that the electronic record is a | 18 | | tamper-evident electronic record. | 19 | | (c) The statements by a person who prepares a certified | 20 | | paper copy shall be made by: | 21 | | (1) testimony before the court; | 22 | | (2) a written statement certified under Section 1-109 | 23 | | of the Code of Civil Procedure attached to the paper copy; | 24 | | or | 25 | | (3) an affidavit attached to the paper copy. |
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| 1 | | (d) A certified paper copy of a tamper-evident electronic | 2 | | record, other than an electronic will, may be created any time | 3 | | after the signer signs the electronic record under the | 4 | | Electronic Commerce Security Act. | 5 | | (e) A certified paper copy of an electronic will may be | 6 | | created any time after the testator signs the electronic will | 7 | | or directs another person in the testator's presence to sign | 8 | | the electronic will. | 9 | | Section 10-15. Witnessing a certified paper copy. | 10 | | (a) A certified paper copy of an electronic record may be | 11 | | witnessed after it is prepared. The witness shall be in the | 12 | | signer's presence when the signer acknowledges the electronic | 13 | | signature as the signer's act. | 14 | | (b) If an electronic will is not attested to by 2 or more | 15 | | credible witnesses, a certified paper copy of the electronic | 16 | | will may be attested to by witnesses in the testator's | 17 | | presence after the testator acknowledges the electronic | 18 | | signature as the testator's act. | 19 | | Article 15. Remote Witnesses | 20 | | Section 15-5. Remote witness for document other than a | 21 | | will. | 22 | | (a) A person may witness any document, other than a will, | 23 | | using audio-video communication between the individual signing |
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| 1 | | the document and the witness. The signatures may be contained | 2 | | in a single document or the document may be signed in | 3 | | counterparts. The counterparts of a document may be electronic | 4 | | records, paper copies, or any combination thereof. | 5 | | (b) During the audio-video communication: | 6 | | (1) the witness shall determine the identity of the | 7 | | signer; | 8 | | (2) the signer of the document shall sign the | 9 | | document; if the document is an electronic record, it | 10 | | shall be a tamper-evident electronic record; and | 11 | | (3) the witness shall sign the document previously | 12 | | signed or acknowledged by the signer, or if signed in | 13 | | counterparts, a separate witness's signature page of the | 14 | | document. | 15 | | (c) If the witness is signing a document in counterparts, | 16 | | then the witness's signed signature page or a copy of the same | 17 | | shall be attached to the document within 10 business days of | 18 | | the signing and before the signer's death or incapacity. The | 19 | | document becomes effective when the witness's signed signature | 20 | | page or a copy of the same is attached to the document. | 21 | | Section 15-10. Remote attestation for will. | 22 | | (a) To be valid under this Act, a will attested to through | 23 | | audio-video communication shall designate this State as its | 24 | | place of execution, be signed by the testator or by some person | 25 | | at the testator's direction and in the testator's presence, |
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| 1 | | and be attested to in the presence of the testator by 2 or more | 2 | | credible witnesses who are located in the United States at the | 3 | | time of the attestation. | 4 | | (b) The will being attested to by audio-video | 5 | | communication may be an electronic will, a paper copy of an | 6 | | electronic will, or a paper document. An electronic will being | 7 | | attested to shall be a single document containing all the | 8 | | signature pages, attestation clauses, and affidavits forming a | 9 | | part of the will. A will that is a paper copy of an electronic | 10 | | will or a paper document may have separate signature pages, | 11 | | attestation clauses, or affidavits that are electronic records | 12 | | or paper documents. Separate signature pages, attestation | 13 | | clauses, or affidavits may be distributed to the witness | 14 | | before the audio-video communication. | 15 | | (c) The testator shall sign the will or direct a person in | 16 | | the testator's presence to sign. A person signing at the | 17 | | testator's direction shall not be an attesting witness, a | 18 | | person receiving a beneficial legacy or interest under the | 19 | | will, or the spouse or child of a person receiving a beneficial | 20 | | legacy or interest under the will. | 21 | | (d) During an audio-video communication: | 22 | | (1) the witness shall determine the testator's | 23 | | identity; | 24 | | (2) the testator shall sign the will, direct another | 25 | | person in the testator's presence to sign the will, or | 26 | | acknowledge the signature as the testator's act; and |
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| 1 | | (3) the witness shall attest to the will in the | 2 | | testator's presence. | 3 | | (e) If the will consists of separate signature pages, | 4 | | attestation clauses, or affidavits forming a part of the will, | 5 | | the testator or a person appointed by the testator shall | 6 | | attach the witness's signed signature page, attestation | 7 | | clause, or affidavit forming a part of the will or a copy of | 8 | | the same to the paper document containing the testator's | 9 | | signature or a paper copy of the electronic will within 10 | 10 | | business days of the attestation. | 11 | | Section 15-15. Determining a signer's or testator's | 12 | | identity. A witness shall determine a signer's or testator's | 13 | | identity by one or more of the following methods: | 14 | | (1) personal knowledge; | 15 | | (2) a government-issued identification; | 16 | | (3) another form of identification that includes a | 17 | | photograph of the holder; or | 18 | | (4) identity proofing. | 19 | | Section 15-20. Remote witnessing and notarization during | 20 | | the COVID-19 emergency declaration. | 21 | | (a) The purpose of this Section is to give statutory | 22 | | approval to the notary and witness guidelines provided in | 23 | | Executive Order 2020-14. | 24 | | (b) Notwithstanding any provision of law or rule, |
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| 1 | | effective March 26, 2020 and ending 30 days after the | 2 | | expiration of the Governor's emergency declaration regarding | 3 | | COVID-19, a notarial act or an act of witnessing, including | 4 | | when a person must "appear before", act "in the presence of", | 5 | | or any variation thereof, may be performed through means of | 6 | | 2-way audio-video communication technology that allows for | 7 | | direct contemporaneous interaction by sight and sound between | 8 | | the individual signing the document, the witness, and the | 9 | | notary public. | 10 | | (c) A notarial act satisfies the "appearing before" | 11 | | requirement under Section 6-102 of the Illinois Notary Public | 12 | | Act if the notary public performs a remote notarization via | 13 | | 2-way audio-video communication technology, if the notary | 14 | | public commissioned in this State is physically within the | 15 | | State while performing the notarial act and the transaction | 16 | | follows any guidance or rules provided by the Secretary of | 17 | | State in existence on the date of notarization. | 18 | | (d) An act of witnessing and the technology used in the | 19 | | audio-video communication shall substantially comply with the | 20 | | following process: | 21 | | (1) the 2-way audio-video communication shall be | 22 | | recorded and preserved by the signatory or the signatory's | 23 | | designee for a period of at least 3 years; | 24 | | (2) the signatory shall attest to being physically | 25 | | located in the State during the 2-way audio-video | 26 | | communication; |
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| 1 | | (3) the witness shall attest to being physically | 2 | | located in the State during the 2-way audio-video | 3 | | communication; | 4 | | (4) the signatory shall affirmatively state on the | 5 | | 2-way audio-video communication what document the | 6 | | signatory is signing; | 7 | | (5) each page of the document being witnessed shall be | 8 | | shown to the witness on the 2-way audio-video | 9 | | communication technology in a means clearly legible to the | 10 | | witness; | 11 | | (6) the act of signing shall be captured sufficiently | 12 | | up close on the 2-way audio-video communication for the | 13 | | witness to observe; | 14 | | (7) the signatory shall transmit by overnight mail, | 15 | | fax, electronic, or other means a legible copy of the | 16 | | entire signed document directly to the witness no later | 17 | | than the day after the document is signed; | 18 | | (8) the witness shall sign the transmitted copy of the | 19 | | document as a witness and transmit the signed copy of the | 20 | | document back via overnight mail, fax, electronic, or | 21 | | other means to the signatory within 24 hours of receipt; | 22 | | and | 23 | | (9) if necessary, the witness may sign the original | 24 | | signed document as of the date of the original execution | 25 | | by the signatory if the witness receives the original | 26 | | signed document together with the electronically witnessed |
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| 1 | | copy within 30 days from the date of the remote | 2 | | witnessing. | 3 | | (e) The prohibition on electronic signatures on certain | 4 | | documents in subsection (c) of Section 120 of the Electronic | 5 | | Commerce Security Act remains in full effect. | 6 | | (f) Notwithstanding any law or rule of this State to the | 7 | | contrary, absent an express prohibition in a document against | 8 | | signing in counterparts, all legal documents, including, but | 9 | | not limited to, deeds, last wills and testaments, trusts, | 10 | | durable powers of attorney for property, and powers of | 11 | | attorney for health care, may be signed in counterparts by the | 12 | | witnesses and the signatory. A notary public shall be | 13 | | presented with a fax or electronic copy of the document | 14 | | signature pages showing the witness signatures on the same | 15 | | date the document is signed by the signatory if the notary | 16 | | public is being asked to certify to the appearance of the | 17 | | witnesses to a document. | 18 | | (g) Any technology issues that may occur do not impact the | 19 | | validity or effect of any instrument or document signed under | 20 | | this Section. As used in this Section, "technology issues" | 21 | | include, but are not limited to, problems with the Internet | 22 | | connection, user error related to the use of technology, the | 23 | | file containing a recorded act becoming corrupted, or other | 24 | | temporary malfunctions involving the technology used in an act | 25 | | of witnessing or a notarial act. |
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| 1 | | Article 20. Admission of Wills to Probate | 2 | | Section 20-5. Electronic will. In addition to the | 3 | | requirements of Section 6-2 of the Probate Act of 1975, the | 4 | | petitioner shall state in the petition to have an electronic | 5 | | will admitted to probate that the electronic will is a | 6 | | tamper-evident electronic record and it has not been altered | 7 | | apart from the electronic signatures and other information | 8 | | that arises in the normal course of communication, storage, | 9 | | and display. | 10 | | Section 20-10. Admission of paper copy of electronic will. | 11 | | Before being admitted to probate, a paper copy of an | 12 | | electronic will shall be: | 13 | | (1) certified under Section 10-10; or | 14 | | (2) supported by sufficient evidence to overcome the | 15 | | presumption under subsection (b) of Section 5-10 that the | 16 | | testator revoked the electronic will. | 17 | | Section 20-15. Admission of wills attested to by witnesses | 18 | | who are physically present. An electronic will or paper copy | 19 | | of an electronic will attested to by witnesses who are all in | 20 | | the testator's physical presence at the time of attestation | 21 | | shall be sufficiently proved under Section 6-4 of the Probate | 22 | | Act of 1975 to be admitted to probate. |
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| 1 | | Section 20-20. Admission of wills attested to by a remote | 2 | | witness. | 3 | | (a) A will, other than a will signed under Section 15-20, | 4 | | attested to by one or more remote witnesses is sufficiently | 5 | | proved to be admitted to probate when each of at least 2 of the | 6 | | attesting witnesses make the statements described in | 7 | | subsection (b), and if the testator appointed a person to | 8 | | attach any separate signature pages, attestation clauses, or | 9 | | affidavits forming a part of a paper copy of an electronic will | 10 | | or paper document, each appointed person, other than the | 11 | | testator, makes the statements described in subsection (d). | 12 | | (b) Each attesting witness shall state that: | 13 | | (1) the attesting witness was present and saw the | 14 | | testator or some person in the testator's presence and by | 15 | | the testator's direction sign the will in the presence of | 16 | | the witness or the testator acknowledged it to the witness | 17 | | as the testator's act; | 18 | | (2) the will was attested to by the witness in the | 19 | | presence of the testator; | 20 | | (3) the witness believed the testator to be of sound | 21 | | mind and memory at the time of signing or acknowledging | 22 | | the will; and | 23 | | (4) if the attesting witness is a remote witness, the | 24 | | method used to determine the testator's identity. | 25 | | (c) The statements of an attesting witness under | 26 | | subsection (b) may be made by: |
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| 1 | | (1) testimony before the court; | 2 | | (2) an attestation clause signed by the witness and | 3 | | attached to the will within 10 business days of the | 4 | | execution; | 5 | | (3) an affidavit that is signed by the witness at the | 6 | | time of attestation and is attached to the will within 10 | 7 | | business days; or | 8 | | (4) an affidavit that is signed after the time of | 9 | | attestation and is attached to an accurate copy of the | 10 | | will. | 11 | | (d) Any person appointed by the testator to attach to the | 12 | | will the witnesses' signed signature pages, attestation | 13 | | clauses, or affidavits forming a part of the will or copies of | 14 | | the same shall state: | 15 | | (1) that the signed signature pages, attestation | 16 | | clauses, or affidavits forming a part of the will or | 17 | | copies of the same were attached within 10 business days | 18 | | of each witness's attestation; | 19 | | (2) that the person attached the signed signature | 20 | | pages, attestation clauses, or affidavits forming a part | 21 | | of the will or copies of the same to the testator's | 22 | | complete and correct will; and | 23 | | (3) if the signed signature pages, attestation | 24 | | clauses, or affidavits forming a part of the will were | 25 | | signed as electronic records, the statements required to | 26 | | certify the paper copies of the electronic records under |
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| 1 | | Section 10-10. | 2 | | (e) The statements under subsection (d) by any person, | 3 | | other than the testator, attaching the attesting witnesses | 4 | | signature pages, attestation clauses, affidavits, or copies of | 5 | | the same may be made by: | 6 | | (1) testimony before the court; | 7 | | (2) a written statement certified under Section 1-109 | 8 | | of the Code of Civil Procedure that is signed and attached | 9 | | to the will when attaching the signature pages, | 10 | | attestation clauses, affidavits of the witnesses, or | 11 | | copies of the same; or | 12 | | (3) an affidavit signed at or after the time of | 13 | | attaching the signature pages, attestation clauses, | 14 | | affidavits of the witnesses, or copies of the same and | 15 | | attached to the will or an accurate copy of the will. | 16 | | Section 20-25. Admission of a will signed during the | 17 | | COVID-19 emergency declaration. A will attested to by a | 18 | | remote witness under Section 15-20 is sufficiently proved to | 19 | | be admitted to probate when each of at least 2 attesting | 20 | | witnesses: | 21 | | (1) sign an attestation clause or affidavit substantially | 22 | | complying with the statements required under subsection (a) of | 23 | | Section 6-4 of the Probate Act of 1975 within 48 hours of the | 24 | | act of witnessing, and the attestation clause, affidavit, or a | 25 | | copy of the same is attached to the will signed by the testator |
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| 1 | | or an accurate copy of the will; | 2 | | (2) sign an attestation clause or affidavit at or after | 3 | | the act of witnessing that is attached to the will or an | 4 | | accurate copy of the will stating the testator and remote | 5 | | witness to the will substantially complied with Section 15-20 | 6 | | and the remote witness believed the testator to be of sound | 7 | | mind and memory at the time of the signing; or | 8 | | (3) testify in court that the testator and remote witness | 9 | | substantially complied with Section 15-20 and that the remote | 10 | | witness believed the testator to be of sound mind and memory at | 11 | | the time of the signing. | 12 | | Section 20-30. Evidence of fraud, forgery, compulsion, or | 13 | | other improper conduct. Nothing in this Article prohibits any | 14 | | party from introducing evidence of fraud, forgery, compulsion, | 15 | | or other improper conduct that in the opinion of the court is | 16 | | deemed sufficient to invalidate the will when being admitted. | 17 | | The proponent may also introduce any other evidence competent | 18 | | to establish the validity of a will. If the proponent | 19 | | establishes the validity of the will by sufficient competent | 20 | | evidence, it shall be admitted to probate unless there is | 21 | | proof of fraud, forgery, compulsion, or other improper conduct | 22 | | that in the opinion of the court is deemed sufficient to | 23 | | invalidate the will. | 24 | | Section 20-35. Formal proof of will with remote witness |
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| 1 | | under Section 20-20. If a will has been admitted to probate | 2 | | under Section 20-20 before notice, any person entitled to | 3 | | notice under Section 6-10 of the Probate Act of 1975 may file a | 4 | | petition within 42 days after the effective date of the | 5 | | original order admitting the will to probate to require proof | 6 | | of the will, pursuant to this Section. The court shall set the | 7 | | matter for hearing upon such notice to interested persons as | 8 | | the court directs. At the hearing, the proponent shall | 9 | | establish the will by testimony of the relevant parties as | 10 | | provided in paragraph (1) of subsection (c) of Section 10-10, | 11 | | paragraph (1) of subsection (c) of Section 20-20, or paragraph | 12 | | (1) of subsection (e) of Section 20-20 or deposition of the | 13 | | relevant parties following the procedures in Section 6-5 of | 14 | | the Probate Act of 1975 or other evidence as provided in the | 15 | | Probate Act of 1975, but not as provided by paragraph (2) or | 16 | | (3) of subsection (c) of Section 10-10, paragraph (2) or (3) of | 17 | | subsection (c) of Section 20-20, or paragraph (2) or (3) of | 18 | | subsection (e) of Section 20-20, as if the will had not | 19 | | originally been admitted to probate. If the proponent | 20 | | establishes the will by sufficient competent evidence, the | 21 | | original order admitting it to probate and the original order | 22 | | appointing the representative shall be confirmed and effective | 23 | | as to all persons, including creditors, as of the dates of | 24 | | their entries, unless there is proof of fraud, forgery, | 25 | | compulsion, or other improper conduct that in the opinion of | 26 | | the court is sufficient to invalidate or destroy the will. The |
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| 1 | | time for filing a petition to contest a will under Section 8-1 | 2 | | of the Probate Act of 1975 is not extended by the filing of the | 3 | | petition under this Section if the order admitting the will to | 4 | | probate is confirmed, but if that order is vacated, the time | 5 | | for filing the petition under Section 8-2 of the Probate Act of | 6 | | 1975 runs from the date of vacation of the order admitting the | 7 | | will to probate. | 8 | | Section 20-40. Formal proof of an electronic will. If a | 9 | | petition is filed for proof of an electronic will under | 10 | | Section 6-21 of the Probate Act of 1975 or Section 20-35 of | 11 | | this Act, the Court shall determine whether the electronic | 12 | | will is a tamper-evident electronic record and has not been | 13 | | altered apart from the electronic signatures and other | 14 | | information that arises in the normal course of communication, | 15 | | storage, and display. | 16 | | Section 20-45. Formal proof of will witnessed during the | 17 | | COVID-19 emergency declaration. Testimony or other evidence | 18 | | at a hearing for formal proof of a will under Section 6-21 of | 19 | | the Probate of 1975 by a remote witness who witnessed the will | 20 | | under Section 15-20 shall establish the testator and remote | 21 | | witness substantially complied with the requirements of | 22 | | Section 15-20 and the remote witness believed the testator to | 23 | | be of sound mind and memory at the time of the signing. Formal | 24 | | proof of a will signed under Section 15-20 does not require |
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| 1 | | testimony or other evidence that the remote witness attested | 2 | | to the will in the presence of the testator. Testimony by the | 3 | | remote witness that conflicts with a statement in the | 4 | | attestation clause or affidavit that the remote witness | 5 | | attested to the will in the presence of the testator does not | 6 | | affect proof of the will or the credibility of the remote | 7 | | witness. | 8 | | Article 95. Amendatory Provisions | 9 | | Section 95-5. The Electronic Commerce Security Act is | 10 | | amended by changing Sections 5-115, 5-120, 5-125, and 10-130 | 11 | | as follows:
| 12 | | (5 ILCS 175/5-115)
| 13 | | Sec. 5-115. Electronic records.
| 14 | | (a) Where a rule of law requires information to be | 15 | | "written" or
"in writing", or provides for
certain | 16 | | consequences if it is not, an electronic record satisfies that | 17 | | rule of
law.
| 18 | | (b) The provisions of this Section shall not apply:
| 19 | | (1) when its application would involve a construction | 20 | | of a rule of law
that
is clearly
inconsistent with the | 21 | | manifest intent of the lawmaking body or repugnant to the
| 22 | | context of the
same rule of law, provided that the mere | 23 | | requirement that information be "in
writing", "written",
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| 1 | | or "printed" shall not by itself be sufficient to | 2 | | establish such intent;
| 3 | | (2) to any rule of law governing the creation or | 4 | | execution of a will or
trust ; and
| 5 | | (3) to any record that serves as a unique and | 6 | | transferable instrument of
rights and
obligations under | 7 | | the Uniform Commercial Code including, without limitation, | 8 | | negotiable instruments and other
instruments of title
| 9 | | wherein possession of the instrument is deemed to confer | 10 | | title, unless an
electronic version of
such record is | 11 | | created, stored, and transferred in a manner that allows | 12 | | for the
existence of only
one unique, identifiable, and | 13 | | unalterable original with the functional
attributes of an | 14 | | equivalent
physical instrument, that can be possessed by | 15 | | only one person, and which cannot
be copied
except in a | 16 | | form that is readily identifiable as a copy.
| 17 | | (Source: P.A. 101-163, eff. 1-1-20 .)
| 18 | | (5 ILCS 175/5-120)
| 19 | | Sec. 5-120. Electronic signatures.
| 20 | | (a) Where a rule of law requires a signature, or provides | 21 | | for certain
consequences if a
document is not signed, an | 22 | | electronic signature satisfies that rule of law.
| 23 | | (a-5) In the course of exercising any permitting, | 24 | | licensing, or other regulatory function, a municipality may | 25 | | accept, but shall not require, documents with an electronic |
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| 1 | | signature, including, but not limited to, the technical | 2 | | submissions of a design professional with an electronic | 3 | | signature. | 4 | | (b) An electronic signature may be proved in any manner, | 5 | | including by
showing that a
procedure existed by which a party | 6 | | must of necessity have executed a symbol or
security procedure | 7 | | for
the purpose of verifying that an electronic record is that | 8 | | of such party in
order to proceed further with a
transaction.
| 9 | | (c) The provisions of this Section shall not apply:
| 10 | | (1) when its application would involve a construction | 11 | | of a rule of law
that is clearly
inconsistent with the | 12 | | manifest intent of the lawmaking body or repugnant to the
| 13 | | context of the
same rule of law, provided that the mere | 14 | | requirement of a "signature" or that a
record be
"signed" | 15 | | shall not by itself be sufficient to establish such | 16 | | intent;
| 17 | | (2) to any rule of law governing the creation or | 18 | | execution of a will or
trust ; and
| 19 | | (3) to any record that serves as a unique and | 20 | | transferable instrument of
rights and
obligations under | 21 | | the Uniform Commercial Code including, without limitation, | 22 | | negotiable instruments and other
instruments of title
| 23 | | wherein possession of the instrument is deemed to confer | 24 | | title, unless an
electronic version of
such record is | 25 | | created, stored, and transferred in a manner that allows | 26 | | for the
existence of only
one unique, identifiable, and |
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| 1 | | unalterable original with the functional
attributes of an | 2 | | equivalent
physical instrument, that can be possessed by | 3 | | only one person, and which cannot
be copied
except in a | 4 | | form that is readily identifiable as a copy.
| 5 | | (Source: P.A. 101-163, eff. 1-1-20 .)
| 6 | | (5 ILCS 175/5-125)
| 7 | | Sec. 5-125. Original.
| 8 | | (a) Where a rule of law requires information to be | 9 | | presented or retained in
its original form,
or provides | 10 | | consequences for the information not being presented or | 11 | | retained in
its original form, that
rule of law is satisfied by | 12 | | an electronic record if there exists reliable
assurance as to | 13 | | the integrity of the
information from the time when it was | 14 | | first generated in its final form, as an
electronic record or
| 15 | | otherwise.
| 16 | | (b) The criteria for assessing integrity shall be whether | 17 | | the information
has remained
complete and unaltered, apart | 18 | | from the addition of any endorsement or other
information that | 19 | | arises in
the normal course of communication, storage and | 20 | | display. The standard of
reliability required to ensure that | 21 | | information has remained complete and
unaltered shall be
| 22 | | assessed in the light of the purpose for which the information | 23 | | was generated
and in the light of all the
relevant | 24 | | circumstances.
| 25 | | (c) The provisions of this Section do not apply to any |
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| 1 | | record that serves as
a unique and
transferable instrument of | 2 | | rights and obligations under the Uniform Commercial Code | 3 | | including, without
limitation, negotiable instruments and
| 4 | | other instruments of title wherein possession of the | 5 | | instrument is deemed to
confer title, unless an
electronic | 6 | | version of such record is created, stored, and transferred in | 7 | | a
manner that allows for the
existence of only one unique, | 8 | | identifiable, and unalterable original with the
functional | 9 | | attributes of an
equivalent physical instrument, that can be | 10 | | possessed by only one person, and
which cannot be copied
| 11 | | except in a form that is readily identifiable as a copy.
| 12 | | (Source: P.A. 90-759, eff. 7-1-99.)
| 13 | | (5 ILCS 175/10-130)
| 14 | | Sec. 10-130. Attribution of signature.
| 15 | | (a) Except as provided by another applicable rule of law, | 16 | | a secure
electronic signature is
attributable to the person to | 17 | | whom it correlates, whether or not authorized,
if:
| 18 | | (1) the electronic signature resulted from acts of a | 19 | | person that obtained
the
signature device or other | 20 | | information necessary to create the signature from a
| 21 | | source under the
control of the alleged signer, creating | 22 | | the appearance that it came from that
party;
| 23 | | (2) the access or use occurred under circumstances | 24 | | constituting a failure
to
exercise
reasonable care by the | 25 | | alleged signer; and
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| 1 | | (3) the relying party relied reasonably and in good | 2 | | faith to its detriment
on the
apparent source of the | 3 | | electronic record.
| 4 | | (b) The provisions of this Section shall not apply to | 5 | | transactions and documents intended
primarily for
personal, | 6 | | family, or household use, or otherwise defined as consumer
| 7 | | transactions by applicable law
including, but not limited to, | 8 | | credit card and automated teller machine
transactions except | 9 | | to the
extent allowed by
applicable consumer law , trust | 10 | | agreements, powers of attorney for property or health care, | 11 | | beneficiary designation forms, and deeds transferring | 12 | | residential real property .
| 13 | | (Source: P.A. 90-759, eff. 7-1-99 .)
| 14 | | Section 95-10. The Probate Act of 1975 is amended by | 15 | | changing Sections 1-2.18, 6-5, 6-6, 8-1, and 8-2 and by adding | 16 | | Sections 1-2.25 and 1-2.26 as follows:
| 17 | | (755 ILCS 5/1-2.18) (from Ch. 110 1/2, par. 1-2.18)
| 18 | | Sec. 1-2.18. "Will" includes electronic will, certified | 19 | | paper copy of an electronic will, testament and codicil. | 20 | | (Source: P.A. 81-213.)
| 21 | | (755 ILCS 5/1-2.25 new) | 22 | | Sec. 1-2.25. Where this Act requires information to be | 23 | | "written" or "in writing", or provides for certain |
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| 1 | | consequences if it is not, an electronic record under the | 2 | | Electronic Wills and Remote Witnesses Act satisfies the | 3 | | provisions of this Act. | 4 | | (755 ILCS 5/1-2.26 new) | 5 | | Sec. 1-2.26. "In the presence of" and any variation | 6 | | thereof includes: | 7 | | (1) being in the same physical location as another person | 8 | | and close enough to see and know the other person is signing a | 9 | | document; or | 10 | | (2) being in a different physical location from another | 11 | | person, but able, using electronic means, to see, hear, | 12 | | communicate, and know that the person is signing a document in | 13 | | real time.
| 14 | | (755 ILCS 5/6-5) (from Ch. 110 1/2, par. 6-5)
| 15 | | Sec. 6-5. Deposition of witness. ) When a witness to a will | 16 | | or other party who shall testify to have a will admitted to | 17 | | probate resides outside
the county in which the will is | 18 | | offered for probate or is
unable to attend court and can be | 19 | | found and is mentally and physically capable
of testifying, | 20 | | the court, upon the petition of any person seeking probate
of | 21 | | the will and upon such notice of the petition to persons | 22 | | interested as
the court directs, may issue a commission with | 23 | | the will or a photographic
copy thereof attached. The | 24 | | commission shall be directed to any judge, notary
public, |
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| 1 | | mayor or other chief magistrate of a city or United States | 2 | | consul,
vice-consul, consular agent, secretary of legation or | 3 | | commissioned officer
in active service of the armed forces of | 4 | | the United States and shall authorize
and require the | 5 | | authorized person him to cause that witness or other party to | 6 | | come before the authorized person him at such time and
place as | 7 | | the authorized person he designates and to take the deposition | 8 | | of the witness or other party on oath
or affirmation and upon | 9 | | all such written interrogatories
and cross-interrogatories as | 10 | | may be enclosed with the commission. With
the least possible | 11 | | delay the person taking the deposition shall certify
it, the | 12 | | commission, and the interrogatories to the court from which | 13 | | the
commission issued. When the deposition of a witness or | 14 | | other party is so taken and returned
to the court, the his | 15 | | testimony of the witness or other party has the same effect as | 16 | | if the witness or other party he testified in the
court from | 17 | | which the commission issued. When the commission is issued to
| 18 | | the officer by his official title only and not by name, the | 19 | | seal of the his
office attached to the officer's his | 20 | | certificate is sufficient evidence of the officer's his | 21 | | identity
and official character.
| 22 | | (Source: P.A. 95-331, eff. 8-21-07.)
| 23 | | (755 ILCS 5/6-6) (from Ch. 110 1/2, par. 6-6)
| 24 | | Sec. 6-6. Proof of handwriting of a deceased or | 25 | | inaccessible witness or a witness with a disability. )
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| 1 | | (a) If a witness to a will or other party who shall testify | 2 | | to have a will admitted (1) is dead, (2) is blind, (3) is | 3 | | mentally or
physically incapable of testifying, (4) cannot be | 4 | | found, (5) is in active
service of the armed forces of the | 5 | | United States or (6) is outside this
State, the court may admit | 6 | | proof of the handwriting of the witness or other party and such
| 7 | | other secondary evidence as is admissible in any court of | 8 | | record to establish
electronic records or written contracts | 9 | | and may admit the will to probate as though it had been
proved | 10 | | by the testimony of the witness or other party . On motion of | 11 | | any interested person
or on its own motion, the court may | 12 | | require that the deposition of any such
witness or other | 13 | | party , who can be found, is mentally and physically capable of | 14 | | testifying
and is not in the active service of the armed forces | 15 | | of the United States
outside of the continental United States, | 16 | | be taken as the best evidence thereof.
| 17 | | (b) As used in this Section, "continental United States" | 18 | | means the States
of the United States and the District of | 19 | | Columbia.
| 20 | | (Source: P.A. 99-143, eff. 7-27-15.)
| 21 | | (755 ILCS 5/8-1) (from Ch. 110 1/2, par. 8-1)
| 22 | | Sec. 8-1.
Contest of
admission of will to probate; notice.
| 23 | | (a) Within 6 months after the admission
to probate of a | 24 | | domestic will in accordance with the provisions
of Section 6-4 | 25 | | or Section 20-20 or 20-25 of the Electronic Wills and Remote |
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| 1 | | Witnesses Act , or of a foreign will in accordance with the | 2 | | provisions of
Article VII of this Act , any interested person | 3 | | may file a petition in the proceeding
for the administration | 4 | | of the testator's estate or, if no proceeding is
pending,
in | 5 | | the court in which the will was admitted to probate, to contest | 6 | | the validity
of the will.
| 7 | | (b) The petitioner shall cause a copy of the petition to be | 8 | | mailed or
delivered
to the representative, to his or her
| 9 | | attorney of
record, and to each heir and legatee whose name is | 10 | | listed in the petition to
admit the will to probate and in any | 11 | | amended petition filed in accordance with
Section 6-11,
at the | 12 | | address stated in the petition or amended petition. Filing a
| 13 | | pleading constitutes a waiver of the mailing or delivery of | 14 | | the notice to the
person filing the pleading. Failure to mail | 15 | | or deliver a copy of the petition
to an heir or a legatee does | 16 | | not extend the time within which a petition to
contest
the will | 17 | | may be filed under subsection (a) of this Section or affect the
| 18 | | validity of the judgement entered in the proceeding.
| 19 | | (c) Any contestant or proponent may demand a
trial by | 20 | | jury. An issue
shall be made whether or not the instrument | 21 | | produced is
the will of the testator. The contestant shall in | 22 | | the first instance proceed
with proof to establish the | 23 | | invalidity of the will. At the close of the
contestant's case, | 24 | | the proponent may present evidence to sustain the will.
An | 25 | | authenticated transcript of the testimony of any witness or | 26 | | other party taken at the
time of the hearing on the admission |
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| 1 | | of the will to probate, or an affidavit
of any witness or other | 2 | | party received as evidence under subsection 6-4(b) , paragraphs | 3 | | (c) and (e) of Section 20-20 of the Electronic Wills and Remote | 4 | | Witnesses Act, or Section 20-25 of the Electronic Wills and | 5 | | Remote Witnesses Act , is admissible in
evidence.
| 6 | | (d) The right to institute or continue a proceeding to | 7 | | contest the validity
of a will survives and descends to the | 8 | | heir, legatee, representative, grantee
or assignee of the | 9 | | person entitled to institute the proceeding.
| 10 | | (e) It is the duty of the representative to defend a | 11 | | proceeding to contest
the validity of the will. The court may | 12 | | order the representative to defend
the proceeding or prosecute | 13 | | an appeal from the judgment. If the representative
fails or | 14 | | refuses to do so when ordered by the court, or if there is no
| 15 | | representative then acting, the court, upon its
motion or on | 16 | | application of any interested person, may appoint a special
| 17 | | administrator to defend or appeal in his stead.
| 18 | | (f) An action to set aside or contest the validity of a | 19 | | revocable inter
vivos trust agreement or declaration of trust | 20 | | to which a legacy is provided by
the settlor's will which is | 21 | | admitted to probate shall be commenced within and
not after | 22 | | the time to contest the validity of a will as provided in
| 23 | | subsection (a) of this Section
and Section 13-223 of the Code | 24 | | of Civil Procedure.
| 25 | | (g) This amendatory Act of 1995 applies to pending cases | 26 | | as well as cases
commenced on or after its effective date.
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| 1 | | (Source: P.A. 89-364, eff. 8-18-95.)
| 2 | | (755 ILCS 5/8-2) (from Ch. 110 1/2, par. 8-2)
| 3 | | Sec. 8-2. Contest of denial of admission of will to | 4 | | probate.
| 5 | | (a) Within
6 months after the entry of an order denying | 6 | | admission to probate of a domestic
will in accordance with the | 7 | | provisions of Section 6-4 or Section 20-20 or 20-25 of the | 8 | | Electronic Wills and Remote Witnesses Act , or of a foreign | 9 | | will
in accordance with the provisions of Article VII of this | 10 | | Act , any interested person
desiring to contest the denial of | 11 | | admission may file a petition to admit
the will to probate in | 12 | | the proceeding for the administration of the
decedent's estate
| 13 | | or, if no proceeding is pending, in the court which
denied | 14 | | admission of the
will to probate. The petition must state the | 15 | | facts required to be stated
in Section 6-2 or 6-20, whichever | 16 | | is applicable.
| 17 | | (b) The petitioner shall cause a copy of the petition to be | 18 | | mailed or
delivered
to the representative, to his or her | 19 | | attorney of record, and to
each
heir and legatee whose name is | 20 | | listed in the petition to admit the will to
probate and in any | 21 | | amended petition filed in accordance with Section 6-11, at
the | 22 | | address stated in the petition or amended petition. Filing a | 23 | | pleading
constitutes a waiver of the
mailing or delivery of | 24 | | the notice to the person
filing the pleading. Failure to mail | 25 | | or deliver a copy of the petition to an
heir or legatee does |
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| 1 | | not extend the time within which a petition to admit the
will
| 2 | | to probate may be filed under subsection (a) of Section 8-1 or
| 3 | | affect the validity of the judgment entered in the proceeding.
| 4 | | (c) Any proponent or contestant may demand a
trial by | 5 | | jury. An issue
shall be made whether or not the instrument | 6 | | produced is the will of the
testator. The proponent shall in | 7 | | the first instance proceed
with proof to establish the | 8 | | validity of the will and may introduce any evidence
competent | 9 | | to establish a will. Any interested person may oppose the | 10 | | petition
and may introduce any evidence admissible in a will | 11 | | contest under Section
8-1. At the close of the contestant's | 12 | | case, the proponent may present further
evidence to sustain | 13 | | the will.
| 14 | | (d) The right to institute or continue a proceeding to | 15 | | contest the denial
of admission of a will to probate survives | 16 | | and descends to the heir, legatee,
representative, grantee or | 17 | | assignee of the person entitled to institute
the proceeding.
| 18 | | (e) The court may order the representative to defend a | 19 | | proceeding to probate
the will or prosecute an appeal from the | 20 | | judgment. If the representative
fails or refuses to do so when | 21 | | ordered by the court, or if there is no
representative then | 22 | | acting, the court, upon its
motion or on application of any | 23 | | interested person, may appoint a special
administrator to do | 24 | | so in his stead.
| 25 | | (f) A person named as executor in a will that has been | 26 | | denied admission
to probate has no duty to file or support a |
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| 1 | | petition under Section 8-2.
| 2 | | (g) This amendatory Act of 1995 applies to pending cases | 3 | | as well as cases
commenced on or after its effective date.
| 4 | | (Source: P.A. 89-364, eff. 8-18-95.)
| 5 | | Article 99. Effective Date
| 6 | | Section 99-99. Effective date. This Act takes effect upon | 7 | | becoming law.".
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