103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB2269

 

Introduced 2/14/2023, by Rep. Margaret Croke

 

SYNOPSIS AS INTRODUCED:
 
See Index

    Amends the Electronic Wills and Remote Witnesses Act. Changes the short title of the Act to the Electronic Wills, Electronic Estate Planning Documents, and Remote Witnesses Act. Defines "electronic", "information", "nontestamentary estate planning document", "person", "record", "security procedure", "settlor", "sign", "state", "terms of trust", "trust instrument", and "will". Creates the Electronic Nontestamentary Estate Planning Documents Article. Sets forth provisions related to: construction; scope; principles of law and equity; use of an electronic record or signature; recognition of an electronic nontestamentary estate planning document and electronic signature; attribution and effect of an electronic record and electronic signature; notarization and acknowledgment; witnessing and attestation; retention of an electronic record; certification of a paper copy; admissibility in evidence; relation to the Electronic Signatures in Global and National Commerce Act; application; and severability. Makes conforming changes in the Probate Act of 1975. Effective January 1, 2024.


LRB103 27863 LNS 54241 b

 

 

A BILL FOR

 

HB2269LRB103 27863 LNS 54241 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Probate Act of 1975 is amended by changing
5Sections 1-2.25, 8-1, and 8-2 as follows:
 
6    (755 ILCS 5/1-2.25)
7    Sec. 1-2.25. Where this Act requires information to be
8"written" or "in writing", or provides for certain
9consequences if it is not, an electronic record under the
10Electronic Wills, Electronic Estate Planning Documents, and
11Remote Witnesses Act satisfies the provisions of this Act.
12(Source: P.A. 102-167, eff. 7-26-21.)
 
13    (755 ILCS 5/8-1)  (from Ch. 110 1/2, par. 8-1)
14    Sec. 8-1. Contest of admission of will to probate; notice.
15    (a) Within 6 months after the admission to probate of a
16domestic will in accordance with the provisions of Section 6-4
17or Section 20-20 or 20-25 of the Electronic Wills, Electronic
18Estate Planning Documents, and Remote Witnesses Act, or of a
19foreign will in accordance with the provisions of Article VII
20of this Act, any interested person may file a petition in the
21proceeding for the administration of the testator's estate or,
22if no proceeding is pending, in the court in which the will was

 

 

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1admitted to probate, to contest the validity of the will.
2    (b) The petitioner shall cause a copy of the petition to be
3mailed or delivered to the representative, to his or her
4attorney of record, and to each heir and legatee whose name is
5listed in the petition to admit the will to probate and in any
6amended petition filed in accordance with Section 6-11, at the
7address stated in the petition or amended petition. Filing a
8pleading constitutes a waiver of the mailing or delivery of
9the notice to the person filing the pleading. Failure to mail
10or deliver a copy of the petition to an heir or a legatee does
11not extend the time within which a petition to contest the will
12may be filed under subsection (a) of this Section or affect the
13validity of the judgment judgement entered in the proceeding.
14    (c) Any contestant or proponent may demand a trial by
15jury. An issue shall be made whether or not the instrument
16produced is the will of the testator. The contestant shall in
17the first instance proceed with proof to establish the
18invalidity of the will. At the close of the contestant's case,
19the proponent may present evidence to sustain the will. An
20authenticated transcript of the testimony of any witness or
21other party taken at the time of the hearing on the admission
22of the will to probate, or an affidavit of any witness or other
23party received as evidence under subsection 6-4(b), paragraphs
24(c) and (e) of Section 20-20 of the Electronic Wills,
25Electronic Estate Planning Documents, and Remote Witnesses
26Act, or Section 20-25 of the Electronic Wills, Electronic

 

 

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1Estate Planning Documents, and Remote Witnesses Act, is
2admissible in evidence.
3    (d) The right to institute or continue a proceeding to
4contest the validity of a will survives and descends to the
5heir, legatee, representative, grantee or assignee of the
6person entitled to institute the proceeding.
7    (e) It is the duty of the representative to defend a
8proceeding to contest the validity of the will. The court may
9order the representative to defend the proceeding or prosecute
10an appeal from the judgment. If the representative fails or
11refuses to do so when ordered by the court, or if there is no
12representative then acting, the court, upon its motion or on
13application of any interested person, may appoint a special
14administrator to defend or appeal in his stead.
15    (f) An action to set aside or contest the validity of a
16revocable inter vivos trust agreement or declaration of trust
17to which a legacy is provided by the settlor's will which is
18admitted to probate shall be commenced within and not after
19the time to contest the validity of a will as provided in
20subsection (a) of this Section and Section 13-223 of the Code
21of Civil Procedure.
22    (g) This amendatory Act of 1995 applies to pending cases
23as well as cases commenced on or after its effective date.
24(Source: P.A. 102-167, eff. 7-26-21.)
 
25    (755 ILCS 5/8-2)  (from Ch. 110 1/2, par. 8-2)

 

 

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1    Sec. 8-2. Contest of denial of admission of will to
2probate.
3    (a) Within 6 months after the entry of an order denying
4admission to probate of a domestic will in accordance with the
5provisions of Section 6-4 or Section 20-20 or 20-25 of the
6Electronic Wills, Electronic Estate Planning Documents, and
7Remote Witnesses Act, or of a foreign will in accordance with
8the provisions of Article VII of this Act, any interested
9person desiring to contest the denial of admission may file a
10petition to admit the will to probate in the proceeding for the
11administration of the decedent's estate or, if no proceeding
12is pending, in the court which denied admission of the will to
13probate. The petition must state the facts required to be
14stated in Section 6-2 or 6-20, whichever is applicable.
15    (b) The petitioner shall cause a copy of the petition to be
16mailed or delivered to the representative, to his or her
17attorney of record, and to each heir and legatee whose name is
18listed in the petition to admit the will to probate and in any
19amended petition filed in accordance with Section 6-11, at the
20address stated in the petition or amended petition. Filing a
21pleading constitutes a waiver of the mailing or delivery of
22the notice to the person filing the pleading. Failure to mail
23or deliver a copy of the petition to an heir or legatee does
24not extend the time within which a petition to admit the will
25to probate may be filed under subsection (a) of Section 8-1 or
26affect the validity of the judgment entered in the proceeding.

 

 

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1    (c) Any proponent or contestant may demand a trial by
2jury. An issue shall be made whether or not the instrument
3produced is the will of the testator. The proponent shall in
4the first instance proceed with proof to establish the
5validity of the will and may introduce any evidence competent
6to establish a will. Any interested person may oppose the
7petition and may introduce any evidence admissible in a will
8contest under Section 8-1. At the close of the contestant's
9case, the proponent may present further evidence to sustain
10the will.
11    (d) The right to institute or continue a proceeding to
12contest the denial of admission of a will to probate survives
13and descends to the heir, legatee, representative, grantee or
14assignee of the person entitled to institute the proceeding.
15    (e) The court may order the representative to defend a
16proceeding to probate the will or prosecute an appeal from the
17judgment. If the representative fails or refuses to do so when
18ordered by the court, or if there is no representative then
19acting, the court, upon its motion or on application of any
20interested person, may appoint a special administrator to do
21so in his stead.
22    (f) A person named as executor in a will that has been
23denied admission to probate has no duty to file or support a
24petition under Section 8-2.
25    (g) This amendatory Act of 1995 applies to pending cases
26as well as cases commenced on or after its effective date.

 

 

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1(Source: P.A. 102-167, eff. 7-26-21.)
 
2    Section 10. The Electronic Wills and Remote Witnesses Act
3is amended by changing Sections 1-1, 1-5, 1-15, and 1-20 and by
4adding Article 11 as follows:
 
5    (755 ILCS 6/1-1)
6    Sec. 1-1. Short title. This Act may be cited as the
7Electronic Wills, Electronic Estate Planning Documents, and
8Remote Witnesses Act.
9(Source: P.A. 102-167, eff. 7-26-21.)
 
10    (755 ILCS 6/1-5)
11    Sec. 1-5. Purpose. The purpose of this Act is to provide
12for: (1) the valid execution, attestation, self-proving, and
13probate of electronic wills, paper copies of electronic wills,
14and wills attested to by witnesses through audio-video
15communication; (2) the valid execution of electronic
16nontestamentary estate planning documents and validation of
17electronic signatures on nontestamentary estate planning
18documents; and (3) (2) the valid execution, attestation, and
19witnessing of documents, other than wills, through audio-video
20communication.
21(Source: P.A. 102-167, eff. 7-26-21.)
 
22    (755 ILCS 6/1-15)

 

 

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1    Sec. 1-15. Relation to Probate Act of 1975, other
2statutes, and common law. All electronic wills, paper copies
3of electronic wills, and wills attested to under this Act are
4subject to all requirements of the Probate Act of 1975 and the
5common law, but to the extent the common law or any provision
6of the Probate Act of 1975 conflicts with or is modified by
7this Act, the requirements of this Act control.
8Nontestamentary estate planning documents executed in
9accordance with this Act are subject to all requirements of
10the various statutes applicable thereto, but to the extent the
11common law or any statute conflicts with or is modified by this
12Act, the requirements of this Act control.
13(Source: P.A. 102-167, eff. 7-26-21.)
 
14    (755 ILCS 6/1-20)
15    Sec. 1-20. Definitions. As used in this Act:
16    "Audio-video communication" means communication by which a
17person can hear, see, and communicate with another person in
18real time using electronic means. A person's visual or hearing
19impairment does not prohibit or limit that person's use of
20audio-visual communication under this Act.
21    "Electronic" means relating to technology having
22electrical, digital, magnetic, wireless, optical,
23electromagnetic, or similar capabilities.
24    "Electronic record" means a record generated,
25communicated, received, or stored by electronic means for use

 

 

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1in an information system or for transmission from one
2information system to another.
3    "Electronic signature" means a signature in electronic
4form that uses a security procedure under the Electronic
5Commerce Security Act and attached to or logically associated
6with an electronic record.
7    "Electronic will" is a will that is created and maintained
8as a tamper-evident electronic record.
9    "Identity proofing" means a process or service through
10which a third person affirms the identity of an individual
11through a review of personal information from public and
12proprietary data sources, including: (1) by means of dynamic
13knowledge-based authentication, including a review of personal
14information from public or proprietary data sources; or (2) by
15means of an analysis of biometric data, including, but not
16limited to, facial recognition, voiceprint analysis, or
17fingerprint analysis.
18    "Information" includes data, text, images, codes, computer
19programs, software, and databases.
20    "Nontestamentary estate planning document" means a record
21relating to estate planning that is readable as text at the
22time of signing and is not a will or contained in a will.
23"Nontestamentary estate planning document" includes a record
24readable as text at the time of signing that creates,
25exercises, modifies, releases, or revokes: (1) a trust
26instrument; (2) a trust power that under the terms of the trust

 

 

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1requires a signed record; (3) a certification of a trust under
2Section 1013 of the Illinois Trust Code; (4) a power of
3attorney that is durable under Article II of the Illinois
4Power of Attorney Act; (5) an agent's certification under
5Section 2-8 of the Illinois Power of Attorney Act of the
6validity of a power of attorney and the agent's authority; (6)
7a power of appointment; (7) an advance directive, including a
8health care power of attorney, directive to physicians,
9natural death statement, living will, and medical or physician
10order for life-sustaining treatment; (8) a record directing
11the disposition of an individual's body after death; (9) a
12nomination of a guardian for the signing individual; (10) a
13nomination of a guardian for a minor child or disabled adult
14child; (11) a mental health treatment declaration; (12) a
15community property survivorship agreement; (13) a disclaimer
16under Section 2-7 of the Probate Act of 1975; and (14) any
17other record intended to carry out an individual's intent
18regarding property or health care while incapacitated or on
19death. "Nontestamentary estate planning document" does not
20include a deed of real property or a certificate of title for a
21vehicle, watercraft, or aircraft.
22    "Paper copy" means a tamper-evident electronic record that
23is printed and contains the following: (1) the text of the
24document; (2) the electronic signature of the signer; (3) a
25readable copy of the evidence of any changes displayed in the
26electronic record; and (4) any exhibits, attestation clauses,

 

 

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1affidavits, or other items forming a part of the document or
2contained in the electronic record.
3    "Paper document" means a document that is written or
4printed on paper.
5    "Person" means an individual, estate, business or
6nonprofit entity, government or governmental subdivision,
7agency, or instrumentality, or other legal entity.
8    "Physical presence" means being in the same physical
9location as another person and close enough to see and know the
10other person is signing a document.
11    "Power of attorney" means a record that grants authority
12to an agent to act in place of the principal, even if the term
13is not used in the record.
14    "Presence" includes: (1) physical presence; or (2) being
15in a different physical location from another person, but
16able, using audio-video communication, to know the person is
17signing a document in real time.
18    "Record" means information: (1) inscribed on a tangible
19medium; or (2) stored in an electronic or other medium and
20retrievable in a perceivable form.
21    "Remote witness" means a person attesting to a document
22who is in the presence of the signer or testator through
23audio-video communication.
24    "Rule of law" means any statute, ordinance, common law
25rule, court decision, or other rule of law enacted,
26established, or promulgated by this State or any agency,

 

 

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1commission, department, court, other authority, or political
2subdivision of this State.
3    "Security procedure" means a procedure to verify that an
4electronic signature, record, or performance is that of a
5specific person or to detect a change or error in an electronic
6record. "Security procedure" includes a procedure that uses an
7algorithm, code, identifying word or number, encryption, or
8callback or other acknowledgment procedure.
9    "Settlor" means a person, including a testator, that
10creates or contributes property to a trust.
11    "Signature" includes an electronic signature and an ink
12signature.
13    "Sign" means, with present intent to authenticate or adopt
14a record, to: (1) execute or adopt a tangible symbol; or (2)
15attach to or logically associate with the record an electronic
16signature.
17    "State" means a state of the United States, the District
18of Columbia, Puerto Rico, the United States Virgin Islands, or
19other territory or possession subject to the jurisdiction of
20the United States. "State" includes a federally recognized
21Indian tribe.
22    "Tamper-evident" means a feature of an electronic record
23by which any change to the electronic record is displayed.
24    "Terms of trust" means: (1) the manifestation of the
25settlor's intent regarding a trust's provisions as (i)
26expressed in the trust instrument or (ii) established by other

 

 

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1evidence that would be admissible in a judicial proceeding; or
2(2) the trust's provisions as established, determined, or
3amended by (i) a trustee or other person in accordance with
4applicable law, (ii) a court order, or (iii) a nonjudicial
5settlement agreement under Section 111 of the Illinois Trust
6Code.
7    "Trust instrument" means an instrument executed by the
8settlor that contains terms of the trust, including any
9amendments.
10    "Will" includes a codicil and a testamentary instrument
11that merely appoints an executor, revokes or revises another
12will, nominates a guardian, or expressly excludes or limits
13the right of an individual or class to succeed to property of
14the decedent passing by intestate succession.
15(Source: P.A. 102-167, eff. 7-26-21.)
 
16    (755 ILCS 6/Art. 11 heading new)
17
Article 11. Electronic Nontestamentary Estate Planning
18
Documents

 
19    (755 ILCS 6/11-5 new)
20    Sec. 11-5. Construction. This Article shall be construed
21and applied to:
22        (1) facilitate electronic estate planning documents
23    and signatures consistent with other law; and
24        (2) be consistent with reasonable practices concerning

 

 

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1    electronic documents and signatures and continued
2    expansion of those practices.
 
3    (755 ILCS 6/11-10 new)
4    Sec. 11-10. Scope.
5    (a) Except as provided in subsection (b), this Article
6applies to an electronic nontestamentary estate planning
7document and an electronic signature on a nontestamentary
8estate planning document.
9    (b) This Article does not apply to a nontestamentary
10estate planning document if the document precludes use of an
11electronic record or electronic signature.
12    (c) This Article does not affect the validity of an
13electronic record or electronic signature that is valid under:
14        (1) the Illinois Uniform Electronic Transactions Act;
15        (2) any other Section of this Act; or
16        (3) any other State law relating to nontestamentary
17    estate planning documents.
 
18    (755 ILCS 6/11-15 new)
19    Sec. 11-15. Principles of law and equity. The law of this
20State and principles of equity applicable to a nontestamentary
21estate planning document apply to an electronic
22nontestamentary estate planning document except as modified by
23this Article.
 

 

 

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1    (755 ILCS 6/11-20 new)
2    Sec. 11-20. Use of electronic record or signature not
3required.
4    (a) This Article does not require a nontestamentary estate
5planning document or signature on a nontestamentary estate
6planning document to be created, generated, sent,
7communicated, received, stored, or otherwise processed or used
8by electronic means or in electronic form.
9    (b) A person is not required to have a nontestamentary
10estate planning document in electronic form or signed
11electronically even if the person previously created or signed
12a nontestamentary estate planning document by electronic
13means.
14    (c) A person may not waive the provisions of this Section.
 
15    (755 ILCS 6/11-25 new)
16    Sec. 11-25. Recognition of electronic nontestamentary
17estate planning document and electronic signature.
18    (a) A nontestamentary estate planning document or a
19signature on a nontestamentary estate planning document may
20not be denied legal effect or enforceability solely because it
21is in electronic form.
22    (b) If other law of this State requires a nontestamentary
23estate planning document to be in writing, an electronic
24record of the document satisfies the requirement.
25    (c) If other law of this State requires a signature on a

 

 

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1nontestamentary estate planning document, an electronic
2signature satisfies the requirement.
 
3    (755 ILCS 6/11-30 new)
4    Sec. 11-30. Attribution and effect of electronic record
5and electronic signature.
6    (a) An electronic nontestamentary estate planning document
7or electronic signature on an electronic nontestamentary
8estate planning document is attributable to a person if it was
9the act of the person. The act of the person may be shown in
10any manner, including by showing the efficacy of a security
11procedure applied to determine the person to which the
12electronic record or electronic signature was attributable.
13    (b) The effect of attribution to a person under subsection
14(a) of a document or signature is determined from the context
15and surrounding circumstances at the time of its creation,
16execution, or adoption and as provided by other law.
 
17    (755 ILCS 6/11-35 new)
18    Sec. 11-35. Notarization and acknowledgment. If other law
19of this State requires a signature or record to be notarized,
20acknowledged, verified, or made under oath, the requirement is
21satisfied with respect to an electronic nontestamentary estate
22planning document if an individual authorized to perform the
23notarization, acknowledgment, verification, or oath attaches
24or logically associates the individual's electronic signature

 

 

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1on the document together with all other information required
2to be included under the other law.
 
3    (755 ILCS 6/11-40 new)
4    Sec. 11-40. Witnessing and attestation.
5    (a) If other law of this State bases the validity of a
6nontestamentary estate planning document on whether it is
7signed, witnessed, or attested by another individual, the
8signature, witnessing, or attestation of that individual may
9be electronic.
10    (b) As used in this subsection (b), "electronic presence"
11means that 2 or more individuals in different locations are
12able to communicate in real time to the same extent as if the
13individuals were physically present in the same location. If
14other law of this State bases the validity of a
15nontestamentary estate planning document on whether it is
16signed, witnessed, or attested by another individual in the
17presence of the individual signing the document, the presence
18requirement is satisfied if the individuals are in each
19other's electronic presence.
 
20    (755 ILCS 6/11-45 new)
21    Sec. 11-45. Retention of electronic record; original.
22    (a) Except as provided in subsection (b), if other law of
23this State requires an electronic nontestamentary estate
24planning document to be retained, transmitted, copied, or

 

 

HB2269- 17 -LRB103 27863 LNS 54241 b

1filed, the requirement is satisfied by retaining,
2transmitting, copying, or filing an electronic record that:
3        (1) accurately reflects the information in the
4    document after it was first generated in final form as an
5    electronic record or under Section 11-30; and
6        (2) remains accessible to the extent required by the
7    other law.
8    (b) A requirement under subsection (a) to retain a record
9does not apply to information the sole purpose of which is to
10enable the record to be sent, communicated, or received.
11    (c) A person may satisfy subsection (a) by using the
12services of another person.
13    (d) If other law of this State requires a nontestamentary
14estate planning document to be presented or retained in its
15original form, or provides consequences if a nontestamentary
16estate planning document is not presented or retained in its
17original form, an electronic record retained in accordance
18with subsection (a) satisfies the other law.
19    (e) This Section does not preclude a governmental agency
20from specifying requirements for the retention of a record
21subject to the agency's jurisdiction in addition to those in
22this Section. In this Section, "governmental agency" means an
23executive, legislative, or judicial agency, department, board,
24commission, authority, institution, or instrumentality of the
25federal government or of a state or of a county, municipality,
26or other political subdivision of a state.
 

 

 

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1    (755 ILCS 6/11-50 new)
2    Sec. 11-50. Certification of paper copy. An individual may
3create a certified paper copy of an electronic nontestamentary
4estate planning document by affirming under penalty of perjury
5that the paper copy is a complete and accurate copy of the
6document.
 
7    (755 ILCS 6/11-55 new)
8    Sec. 11-55. Admissibility in evidence. Evidence relating
9to an electronic nontestamentary estate planning document or
10an electronic signature on the document may not be excluded in
11a proceeding solely because it is in electronic form.
 
12    (755 ILCS 6/11-60 new)
13    Sec. 11-60. Relation to the Electronic Signatures in
14Global and National Commerce Act. This Article modifies,
15limits, or supersedes the Electronic Signatures in Global and
16National Commerce Act, 15 U.S.C. Section 7001 et seq., but
17does not modify, limit, or supersede 15 U.S.C. Section 7001(c)
18or authorize electronic delivery of any of the notices
19described in 15 U.S.C. Section 7003(b).
 
20    (755 ILCS 6/11-65 new)
21    Sec. 11-65. Application. This Article applies to an
22electronic nontestamentary estate planning document created,

 

 

HB2269- 19 -LRB103 27863 LNS 54241 b

1signed, generated, sent, communicated, received, or stored
2before, on, or after the effective date of this amendatory Act
3of the 103rd General Assembly.
 
4    (755 ILCS 6/11-70 new)
5    Sec. 11-70. Severability. If a provision of this Article
6or its application to a person or circumstance is held
7invalid, the invalidity does not affect another provision or
8application that can be given effect without the invalid
9provision.
 
10    Section 99. Effective date. This Act takes effect January
111, 2024.

 

 

HB2269- 20 -LRB103 27863 LNS 54241 b

1 INDEX
2 Statutes amended in order of appearance
3    755 ILCS 5/1-2.25
4    755 ILCS 5/8-1from Ch. 110 1/2, par. 8-1
5    755 ILCS 5/8-2from Ch. 110 1/2, par. 8-2
6    755 ILCS 6/1-1
7    755 ILCS 6/1-5
8    755 ILCS 6/1-15
9    755 ILCS 6/1-20
10    755 ILCS 6/Art. 11 heading
11    new
12    755 ILCS 6/11-5 new
13    755 ILCS 6/11-10 new
14    755 ILCS 6/11-15 new
15    755 ILCS 6/11-20 new
16    755 ILCS 6/11-25 new
17    755 ILCS 6/11-30 new
18    755 ILCS 6/11-35 new
19    755 ILCS 6/11-40 new
20    755 ILCS 6/11-45 new
21    755 ILCS 6/11-50 new
22    755 ILCS 6/11-55 new
23    755 ILCS 6/11-60 new
24    755 ILCS 6/11-65 new
25    755 ILCS 6/11-70 new