The following is the memorandum prepared by Michael Roof.

OFFICE RESEARCH MEMORANDUM TO: Kristine Condon, Senior Partner

From: Michael W. Roof, paralegal Re: Estate of Fitzpatrick

Statement of Assignment You have asked me to prepare a memorandum discussing the state statutes and /or cases that will help or hurt us as we determine whether there is a cause of action in a probate case. The case involves an attorney that drafted a will all the while being named executor, named a beneficiary, was given a bequest and also charged the estate for attorneys fees.

Issues Issue I. Is a will valid under Illinois Probate Act and related case law when an attorney

who drafts a will is also named the executor of the estate? Issue II. Is a will valid under Illinois Probate Act and related case law when an attorney

who drafts a will is also named beneficiary of the estate? Issue III. Is a will valid under Illinois Probate Act and related case law when an attorney

who drafts a will then later bills the estate for attorneys fees?

Brief Answers Issue I. Yes. The will is valid under Illinois statutory law. The fact that an attorney who

drafted the will is named executor does not invalidate its execution as long as two credible witnesses attest to its execution as well.

Issue II.

Yes. The will is valid under Illinois statutory law. The fact that an attorney who

drafted the will is also named a beneficiary does not invalidate its execution as long as there are two other credible witnesses present. Issue III. Yes. The will is valid under Illinois statutory law and related case law. An

attorney is allowed reasonable compensation for his/her work for an estate.

Facts Our client, Marilyn Hogan, has come to our firm seeking legal advice on the validity of her sisters will. Hogan wants to know if a will is valid when an attorney who executed it can also be named as executor of the estate and as a beneficiary of the estate, when also billing the estate for attorneys fees. Patricia Fitzpatrick executed a Last Will and Testament on January 5, 2011, by her attorney Michael Herzog. Mr. Herzog was one of three witnesses to her signature at the time the will was executed in his office. The will stated that her estate was to be divided equally between two organizations: the Kankakee County Animal Foundation and Kankakee Community College, along with a gift to Michael Herzog for $10,000. Michael Herzog was named executor of her estate and has already billed $15,000 in attorneys fees. Patricia Fitzpatrick died on August 22, 2011. Analysis Issue I One of the rules of law governing if an attorney can attest the execution of a will while acting as executor of an estate is Illinois statute 755 ILCS 5/4-6(b) which provides, No attorney or partnership of attorneys is disqualified to act or to receive compensation for acting as attorney for any fiduciary by reason of the fact that the attorney or any employee or partner of the

attorney or partnership attests the execution of the will or testifies thereto. 755 ILCS 5/4-6(b) (West 2011). Michael Herzog should not be disqualified to act as an attorney and/or an executor, a fiduciary position, of an estate because he also attested the execution of Fitzpatricks will. To further analyze the legal question of the validity of the will within our case, another rule of law is Illinois statute 755 ILCS 5/4-3. The statute provides, Every will shall be in writing, signed by the testator or by some person in his presence and by his direction and attested in the presence of the testator by 2 or more credible witnesses. 755 ILCS 5/4-3 (West 2011). Mr. Herzog was present at the execution of the will along with two other credible witnesses. A case in which our own Third District Appellate Court interpreted the aforementioned statutes is Matter of Grabows Estate, 74 Ill. App. 3d 336, 338, 30 Ill. Dec. 215, 217, 392 N.E.2d 980.982 (3d Dist. 1979). In this case, the executor and its attorneys had many difficulties in obtaining passbooks for three bank accounts. Negotiation of the estate, consisting of two large parcels of real estate, was done by the executor and its attorneys. One parcel sale needed to be renegotiated. The executor maintained all financial records and tax returns and did extensive work settling claims and selling the properties. Within Grabows, the court held The Probate Act of 1975 specifically allows an attorney to attest the execution of a will in addition to acting as an attorney for the executor. Matter of Grabows Estate, 74 Ill. App. 3d at 338, 30 Ill. Dec. at 217, 392 N.E.2d at 982 (1979) (citing Ill. Rev. Stat. ch. 110 1/2, par. 4-6(b) 1977). In our case, just as in Grabows, Mr. Herzog drafted Fitzpatricks will and also acted as an executor, a fiduciary position, of the estate. Mr. Herzog attested to the execution of the will and acted as executor. Issue II The rule of law governing if a will is valid when attested by a person with interest in an estate is 755 ILCS 5/4-6(a) which provides, If a beneficial legacy or interest is given in a will to

a person attesting its execution or to his spouse, the legacy or interest is void as to that beneficiary and all persons claiming under him, UNLESS the will is otherwise duly attested by a sufficient number of witnesses as provided exclusive of that person 755 ILCS 5/4-6(a) (West 2011). In our case, Michael Herzog had an interest in the will as a beneficiary of a $10,000 bequest from the estate and as the attorney who attested to its execution. The wills execution was also attested by two other people who had no interest in the will. A case in which the First District Appellate Court interpreted the aforementioned statute is Matter of Estate of Webster, 214 Ill. App. 3d 1014, 1019, 574 Ill. Dec. 451, 455, 547 N.E.2d 245, 249 (1st Dist. 1991). In the Webster case, the will of John Webster was admitted into probate in 1988. The will stated that if his spouse predeceased him, all his property would go to his stepdaughters, Edith L. Hardy and Betty Hardy Williams. The will also stated the all property not effectively distributed of the will, then it would go to step grandson, Robert Bruce Williams. The will was witnessed by George W. Williams, the husband of Betty Hardy

Williams, and Muriel E. Williams, the wife of Robert Bruce Williams. Within Webster, the court held that under 755 ILCS 5/4-3 (formerly Ill. Rev. Stat. ch. 110 1/2, para. 4-3, 1989), Every will shall be in writing, signed by the testator or by some person in his presence and by his direction and attested in the presence of the testator by 2 or more credible witnesses. Estate of Webster, 214 Ill. App. 3d at 1019, 158 Ill. Dec. at 455, 574 N.E.2d at 249 (1991) (citing In re Estate of Weaver, 50 Ill. App. 3d 223, 8 Ill. Dec. 652, 658, 365 N.E.2d 1038, 1044 (5th Dist. 1977)). The court further held that Attesting witnesses are placed around the testator to make sure there is no fraud done during the execution of the will and to judge his capacity. Estate of Webster, 214 Ill. App. 3d at 1019, 158 Ill. Dec. at 455, 574 N.E.2d at 249 (1991) (citing In re

Estate of Weaver, 50 Ill. App. 3d 223, 8 Ill. Dec. 652, 658, 365 N.E.2d 1038, 1044 (5th Dist. 1977)). In our case, just as in Webster, Mr. Herzog had an interest in the will by being named a beneficiary of a $10,000 bequest in the will as well as witnessing to its execution. There were two credible witnesses other than Mr. Herzog at the execution of the will.

Issue III The rule of law governing if an attorney can attest the execution of a will and collect fees for his work done as the executor of an estate is 755 ILCS 5/4-6(b). The aforementioned statute was also reviewed in Issue I. The statute allows an attorney to receive compensation for his/her work as an attorney even though he/she attested the execution of the will. 755 ILCS 5/4-6(b) (2011). Mr. Herzog attested to the execution of the will and he also billed the estate for attorneys fees that are due to him. Within with the earlier mentioned Grabow case, the probate court had approved executors fees of $60,000 and attorneys fees of $80,000 for the firm representing the executor, while receipts to the estate totaled $2,127,324.57. The court held the determination of

reasonable compensation for services of an executor and attorney is solely within the discretion of the probate court. The determination is based on the circumstances of each case, considering the size of the estate, the work done, the skill with which it was performed, the time required and reasonable prudence. Matter of Grabows Estate, 74 Ill. App. 3d at 341, 30 Ill. Dec. at 219, 392 N.E.2d at 984 (1979). In our case, just as in Grabows, Mr. Herzog drafted the will and attested to its execution. Michael Herzog requested compensation for his work as attorney and executor on the estate of Patricia Fitzpatrick.

Summary / Recommendations At the initial case review, it appeared that the attorney could have taken liberties by acting as an executor of the estate in which he was also acting as attorney and receiving an bequest all the while being paid for his work as attorney for the estate. After doing the research into this matter, it seems that the attorney did nothing that was inappropriate according to Illinois law. Pertaining to Marilyn Hogans allegations that Mr. Herzogs conduct could be reported to the Attorney Registration and Disciplinary Commission, would appear mute given the findings within this document. The fact that there were two credible witnesses alongside Mr. Herzog begs the assumption of law that nothing unethical happened. The fact that she was left out of the will could also be assumed the reason that she wants Mr. Herzog investigated.