Can You “Contest-Proof” Your Estate Plan?

Can You “Contest-Proof” Your Estate Plan?

Provided By: Alan G. Orlowsky

If we thought about it, most of us would prefer to create as little stress and conflict as possible for our children and family who survive us. We do not want our loved ones to feel compelled to engage in or find themselves trapped in the type of expensive and lengthy litigation in which one deceased Irish woman’s family now finds itself. Four years after her sister’s passing, Majella Rippington is still attempting to show her sister’s will was the product of undue influence and duress and thus invalid.

Although we may not want to, many of us here in Chicagoland and throughout the United States are setting our families up for this sort of experience through careless estate planning – or having no estate plan at all. This raises the potential that our loved ones may contest our estate planning documents after our deaths.

Common Challenges and Contests to Estate Plans

When a family member, heir, or beneficiary challenges the validity of an estate planning document (most often a will), that person is essentially asking the court to disregard that document and give it no legal effect. There are a limited number of grounds to challenge estate planning documents, and successfully contesting such documents is difficult. Nevertheless, you may wish to consider challenging a loved one’s will or other estate planning document if:

• There is evidence of fraud. If your loved one signed a will or trust document because someone tricked your loved one into believing the document was for some other purpose, then fraud has occurred and the document can be set aside. If witnesses were present when your loved one signed the document, they may need to testify what they believed your loved one was signing or what they were asked to witness.
• There is evidence of undue influence. If the will or other document was the product of the undue influence of another person, it may be set aside. This requires more than threats, nagging, or verbal abuse: the influence must be so severe that your loved one lost his or her free will.
• There is evidence of a lack of testamentary capacity. In the case of a will, a testator must understand the nature of his or her assets and what he or she is proposing to do through a will. Dementia and other mental issues will not automatically invalidate a will.
• The will or other document does not comply with statutory requirements. In the case of an Illinois will, for example, certain formalities must be followed. A will that does not comply with these requirements may be declared invalid.

Seek Legal Counsel Before Contesting a Will or Estate Document

It is highly advisable to seek out experienced legal counsel before contesting a will or estate planning document. At Orlowsky & Wilson, Ltd., our experienced estate planning attorneys can analyze your loved one’s will, trust, or other estate planning document, helping you to decide whether contesting the validity of the document is a good course of action in your situation. Where you do choose to contest a loved one’s will, our attorneys will provide vigorous and aggressive representation to you. We can also help prepare or amend your own estate planning documents so as to remove potential challenges to their validity later.

We serve clients needing assistance with estate planning and probate counsel in the Northbrook, Evanston, Skokie, Glenview, Glencoe and Highland Park, Illinois areas. Contact our estate planning lawyers for assistance in drafting your own estate plan or contesting a loved one’s estate plan by calling (847) 325-5559 today.