Partial Invalidation of a Will

Generally, courts are reluctant to revoke the will of a testator and only do so when there is compelling evidence that a will was signed under duress, the testator lacked testamentary capacity, or that another existing will revokes a prior document. These challenges must be brought within six months of the will’s admission to probate and can only be filed by a person who has a direct, pecuniary interest that would be detrimentally affected if the will went through probate. Once these hurdles have been met, a court may choose to revoke a will, either partially or in its entirety. A partial revocation means that only some portions of a will are considered invalidated, leaving the rest unchanged. In these situations, it can be difficult to ascertain which beneficiary is granted what interest or asset, so if you are the beneficiary of a will that has been partially revoked, it is critical to contact an experienced contested estates attorney who can explain your options.

Partial Invalidation and the Testator’s Intent

When a court determines that only a portion of a will is invalidated, it can in some cases enforce the remaining provisions. However, this is only true when the invalid provisions can be separated from the instrument as a whole without defeating the testator’s intent or destroying the testamentary scheme. For example, if the contested portions of a will were fraudulently inserted by a third party, a court could invalidate those provisions alone, while allowing the rest of the will to go through probate. For this reason, one of the key questions that courts ask when hearing a will contest is whether:

  • The undue influence, fraud, or lack of testamentary capacity affected only a limited portion of the will; and
  • The testator would have intended the entire will to fail if a single provision were invalidated.

If, in answering this query, a court determines that the remainder of a will cannot be enforced without defeating the intention of the testator or if it cannot ascertain which specific portions of a will were the result of undue influence or fraud, the entire will must be invalidated. Otherwise, the document will only be partially invalidated.

Contact us Today to Speak With our Experienced Contested Estates Attorneys

In some cases, it can be a relatively straightforward process to identify which parts of a will were the result of undue influence, fraud, forgery, or a lack of testamentary capacity. In these situations, courts can invalidate the problematic portions of the document, while leaving the rest of the will in place. However, it is not always possible to differentiate between the fraudulent portions of a will and the valid provisions and so courts are forced to invalidate the entire will, which means that the decedent’s estate will pass through probate and be distributed according to the rules of intestacy. As such, if you live in Evanston, Glencoe, Glenview, Highland Park, Northbrook, or Skokie, you are a beneficiary of a will, and believe that at least part of the document may be invalid, please contact Orlowsky & Wilson, Ltd. Attorneys at Law and we’ll help you set up an initial consultation.

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