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Understanding an Illinois will contest

On Behalf of | Apr 29, 2024 | Estate Planning

Many Illinois residents believe that their signature on a will is the last step in disposing of their assets and preventing disputes between family members. Unhappily, this is not always the end result. Some potential heirs may be unhappy with their bequest and some heirs may suspect fraud or other improper conduct in the execution of the will. The result of such unhappiness can lead to a lawsuit commonly referred to as a will contest.

The beginning of a will contest

A will contest may be brought only by a person who has a direct pecuniary interest in the will presented to the court for probate. Such an interest confers upon the alleged heir a legal capacity known as “standing.” A person who lacks standing is legally precluded from challenging the will.

Challenging the formalities

All Illinois wills must be signed by the person making the bequests and witnessed by two persons over the age of 18. A will that does not embody these characteristics is invalid per se.

Other grounds for invalidity

A will that is the product of undue influence, that is, a will whose terms were influenced by a person with an improper relationship with the decedent, may be declared invalid in whole or in part.

Illinois wills are presumed by law to be valid, and the person who is challenging the will has the burden of proving by the greater weight of the evidence that the will in question was the product of an unnaturally close relationship between the testator and one or more of the heirs. Such relationships are often referred to as evidence of undue influence.

Undue influence is often cited as a reason for declaring a will to be invalid because the will must be the testator’s free act and cannot be the product of the influence of a third party.

Lack of testamentary capacity

If the testator lacked the mental capacity to understand the legal effect of the will, the will may be declared invalid for that reason alone.

Fraud or forgery

If the heir challenging the will can prove that the terms of the will were the product of a fraudulent act or a forgery, all or part of the will may be declared invalid. For example, the testator may be shown to have relied on a representation by the challenger that a bequest to a particular heir will result in a benefit to an organization favored by the decedent.

As may be inferred from the preceding discussion, a will contest is a very complex legal proceeding, involving many subtle issues and arguments.