Contesting a Will Based on Revocation

Illinois courts are wary of revoking a person’s will as it is generally presumed that testators are competent at the time of a will’s execution. However, there are a few ways that an heir or family member can contest the validity of a will, one of which is to claim that a will was previously revoked by the testator. Because of the presumption of validity, establishing that a will does not represent the wishes of the decedent can be difficult, so if you or a loved one have concerns about the validity of a relative’s will, it is crucial to retain the services of an experienced contested estates attorney who can help explain your legal options.

Methods of Revocation

In Illinois, a will can be revoked in one of four ways, including:

  • By being burned, canceled, torn, or obliterated by the testator or by someone in the testator’s presence and by his or her direction and consent;
  • By the execution of a new will declaring the revocation of the previous instrument;
  • By the execution of a later will that is inconsistent with the prior instrument; or
  • By the execution of another instrument, signed by the testator and two witnesses, declaring the will’s revocation.

In addition to one of these methods, a testator must also have had the intent to revoke the will. In some cases, intent will be presumed. For example, a will that was in the possession of the testator, but cannot be found upon his or her death is enough to establish that it had been destroyed by the decedent with the intent of revocation. Similarly, when a will remained in a testator’s possession until his or her death and is then found torn or with alterations, cancellations, or erasures, it will also be presumed that those acts were committed by the testator with the intent to revoke the will.

This presumption of intent, however, can be overcome through certain types of evidence, including:

  • Evidence demonstrating that the testator had stated that he or she did not intend to revoke the will;
  • Evidence that the testator behaved kindly and lovingly towards the proposed beneficiary up to the time of death; and
  • Evidence of another person’s access to the will prior to the testator’s death.

A will is also not considered revoked if the testator experiences a change in circumstances or marital status. The one exception pertains to dissolution of a marriage when the spouse was named in the will. In these cases, all interests and power of appointment given to the former spouse will be revoked as long as the will was executed prior to the entry of judgment of dissolution. The will then takes effect as though the former spouse had passed away before the testator.

Reviving a Will

A will that is totally revoked can only be revived in one of a few ways, including:

  • Re-execution; and
  • By the signing and attesting of a new instrument declaring the revival.

Finally, if a will is partially revoked by documentation that is itself later revoked, the previously invalidated part of the will is considered revived and will become effective.

Contact a Dedicated Contested Estates Attorney

If you live near Evanston, Glencoe, Glenview, Highland Park, Northbrook, or Skokie and have concerns about the validity of a loved one’s will, please contact Orlowsky & Wilson, Ltd. Attorneys at Law at 847-325-5559 to schedule a consultation with an experienced contested estates attorney who can evaluate your case.

Updated as of July 2019
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