Law of Wills, 2016A

position, that the witnesses are signing their names to the instrument which he has signed as his will
in accordance with his request. Quirk v. Pierson, 287 Ill. 176, 122 N.E. 518. It is not enough for the
testator to be able to judge from such act as he may see that the witnesses were signing his will. It is
essential to the attestation which the law requires that the testator have the opportunity of seeing the
very act of attestation, the will, the witnesses and their act. Snyder v. Steele, 287 Ill. 159, 122 N.E. 520.
All the authorities declare that the object of the law is to prevent fraud and imposition upon the
testator or the substitution of a surreptitious will, and to effect that object it is necessary that the
testator shall be able to see and know that the witnesses have affixed their names to the paper which
he has signed and acknowledged as his will. As we view the facts presented by this record, there was
no way testatrix could have known of her own knowledge that her will was being signed by the three
subscribing witnesses and that she had not been imposed upon.
Counsel for defendant in error asserts that the attestation clause recites all the necessary facts, under
the statute, for admitting the will to probate, and was entitled to weight on the hearing in the circuit
court. An attestation clause in proper from is entitled to due weight in determining whether a will
was legally executed, but such a clause is not conclusive. Harris v. Etienne, supra.
In our opinion the requirements of the statute have not been complied with, and the judgment of
the Appellate Court and the order of the circuit court of Cook County are reversed.
Judgments reversed.
11.4.2 Conscious Presence
In order to satisfy the conscious presence test, the witness is in the presence of the testator if
the testator, through sight, hearing, or general consciousness of events, comprehends that the
witness is in the act of signing.
Whitacre v. Crowe, 972 N.E.2d 659 (Ohio Ct. App. 2012)
CARR, Judge.
Appellant, Victoria Hobson, appeals the judgment of the Medina County Court of Common Pleas,
Probate Division. This Court affirms.
I.
Kay Whitacre had five adult children at the time of her death. Her will was admitted to probate. Her
daughter Victoria was named as the sole beneficiary, while her son Michael was named as executor.
Kay’s three remaining children, Shawn, Angie, and Nick, were not mentioned in the will.
Subsequently, Shawn, Angie, and Nick filed a complaint to contest the will. They later moved for
summary judgment. Victoria and Michael responded in opposition. The trial court granted the
plaintiffs’ motion for summary judgment, concluded that Kay’s will was not executed pursuant to
the formalities required in R.C. 2107.03, and revoked an earlier order admitting the will to probate.
Victoria appealed, raising three interrelated assignments of error for review.
II.
483