Contesting a Will Based on Lack of Testamentary Capacity

Contesting a Will Based on Lack of Testamentary Capacity

Provided By: Alan G. Orlowsky

When a beneficiary has reason to believe that a testator did not have the mental capacity necessary when creating a will, he or she can attempt to have the will invalidated. In Illinois, courts presume that testators possessed the requisite capacity at the time the will was executed as long as the document was properly signed in the presence of two witnesses. Although it is difficult, it is possible for a will to be invalidated based on a testator’s lack of capacity, so if you have evidence that a loved one did not have the mental capacity to execute a will, it is important to obtain the advice of an experienced contested estates lawyer who can help explain your legal options.

Testamentary Capacity

In Illinois, testators are always presumed to be of sound mind at the time the will was executed if all of the necessary formalities are met. This is even true when a testator suffered from dementia or senility. As a result, it is the responsibility of the person contesting the validity of the will to rebut this presumption by proving a lack of capacity. The test used by courts to determine whether a testator had the requisite capacity includes an analysis of whether the testator had the mental ability to:

  • Know and remember the identity of those he or she is expected to provide for and who the beneficiaries are;
  • Comprehend the kind and character of the property being disposed of; and
  • Make disposition of the property or assets according to a plan.

The threshold for testamentary capacity is low, so it can be difficult for plaintiffs to establish a lack of capacity, especially since only evidence that relates to the time period when the will was executed will be considered. In determining whether a testator had the necessary mental capacity to execute a will, courts often analyze whether the testator demonstrated behavior indicating mental capacity in other endeavors, including:

  • Transacting ordinary business; and
  • Acting rationally in the ordinary affairs of life.

Courts may also take into consideration evidence of:

  • Physical impairment;
  • The appointment of a guardian;
  • Expert testimony by qualified medical professionals; and
  • Witness testimony concerning the testator’s behavior.

If the person challenging the will is successful in establishing that the testator did not have the mental capacity to execute a will, the document may be:

  • Voided in its entirety; or
  • Voided in part.

If the entire will must be voided, a court will distribute the property according to Illinois’ intestacy laws.

Contact an Experienced Contested Estates Attorney Today

Establishing that a loved one or family member did not have the capacity to execute a will can be difficult and emotionally draining, so if you were the beneficiary of a will and have questions or concerns about the testator’s capacity, it is important to speak to an attorney who can advise you about your options. Please contact Orlowsky & Wilson, Ltd. Attorneys at Law by calling 847-348-8863 or by completing one of our quick contact forms and we’ll help you set-up a consultation with an experienced contested estates attorney.

Updated as of July 2019
  • Email
  • Mailing Address
    250 Parkway Dr. Lincolnshire, IL 60069
  • One Northfield Plaza 560 W Frontage Rd STE 300 Northfield, IL 60093
  • 115 S LaSalle St STE 2600, Chicago, IL 60603

Quick Contact