Contesting a Will in Illinois

Contesting a Will in Illinois

By: Alan G. Orlowsky

While around 99 percent of all wills that go through probate pass through without incident, sometimes issues arise surrounding the distribution of assets or other areas within the will. When this happens, the will is deemed “contested.” Only certain people involved in the estate can contest a will, and it must be done according to the specific requirements set by Illinois law.

Illinois Law Contesting a Will

According to the Illinois Probate Act, Chapter 5, Section 8-1 states that “within six months after the admission to probate of a domestic will . . . any interested person may file a petition in the proceeding for the administration of the testator’s estate or, if no proceeding is pending, in the court in which the will was admitted to probate, to contest the validity of the will.”

In order to file a petition, that person must have standing to contest the will. Legal standing requires that the person contesting the will must have a direct, financial, and existing interest that would be detrimentally affected by the acceptance of the will by the courts. A spouse or a child that was excluded from any inheritance is the most common example of a person with standing; however, any person who was named in a prior will that would become effective if the current will is determined to be invalid has standing, as well.

Grounds for Invalidating a Will

There are a few different ways that a contested will can be invalidated. One way involves challenging the technicalities surrounding the creation of the will. The other ways of contesting a will involve challenging the state of mind of the testator when the will was created.

• Age and Execution

Under Illinois law, a person must be at least 18 years old at the time that the will is created. If the will was created before the person was 18, it can be challenged for age. In addition, the will must be signed and witnessed by two people who have no stake, or are “disinterested,” in the will in order for it to be valid.

• Undue Influence

Undue influence exists when a person’s influence prevents the testator from exercising free will in the distribution of the estate. The undue influence must be directly connected with the preparation and signing of the will. Undue influence can be exerted by direct beneficiaries or by third parties who may profit from it.

In addition, a presumption of undue influence can result when a fiduciary relationship exists between the person making the will and a person who receives property by the terms of the will. A fiduciary relationship may exist between an elderly or infirm person and a beneficiary who provides care and assistance, who handles the financial affairs, or who is the attorney of the person creating the will.

• Fraud or Forgery

Similar to undue influence, typically a person accused of fraud or forgery is in a place of trust with the testator. This area differs from undue influence because the testator is led to believe that the terms of the will are different than what is actually being signed.

• Lack of Capacity

The testator must be of “sound mind” at the time that the will was signed. The requirements for contesting a will for lack of testamentary capacity are rigorous, and the petitioner must prove that the testator:

• Did not know what a will does or that they were making one;
• Did not know who they would be expected to provide for, like a spouse or children;
• Did not understand what was owned in the estate; and
• Was unable to decide how to distribute the property.

Contact an Illinois Probate Attorney Today

If you or someone you know wishes to challenge the provisions of a will submitted to probate in Lincolnshire, Northbrook, Evanston, Skokie, Glenview, Glencoe, or Highland Park, let the experienced attorneys at Orlowsky & Wilson, Ltd. help. Reach out to us today to discuss the specifics of your case.