Contesting a Will: Undue Influence


Contesting a Will: Undue Influence

Provided By: Alan G. Orlowsky

One of the most common reasons that family members dispute a will or estate is the concern that the testator was the victim of undue influence. Courts are reluctant to override a testator’s wishes, so it can be difficult to establish that undue influence impacted the outcome of a will, making it especially important for those who are contesting an estate to contact an experienced estate planning attorney who will help explain your legal options.

Establishing Undue Influence

Illinois law states that within six months after a will has been admitted to probate, a petitioner can contest the will in court if he or she believes that the writing does not represent the will of the decedent. In order to contest the will, a petitioner must have a direct, pecuniary, and existing interest that would be detrimentally affected by the will going through the probate process. All representatives and heirs must also be made parties to the proceedings, any of whom can request a jury trial.

When a testator is prevented from exercising his or her own will in disposing of an estate, he or she may have been the victim of undue influence. However, a will can only be invalidated if the undue influence was directly connected to the creation of the will or its execution. Undue influence can be exerted by those who directly benefit from the will, but also by third parties, such as the spouse of a beneficiary. Many people believe that to constitute undue influence, a beneficiary must have inspired fear in the testator. However, courts have recognized that kindness and affection can constitute undue influence if that behavior destroys the testator’s free agency.

Presumption of Undue Influence

A rebuttable presumption of undue influence can exist when the testator and the person who allegedly exerted undue influence had a fiduciary relationship. To establish this presumption, the plaintiff must prove that:

  • A fiduciary relationship, such as an attorney-client relationship, existed between the testator and the beneficiary to such a degree that the beneficiary was the dominant party;
  • The testator trusted the beneficiary;
  • The beneficiary prepared or arranged for the preparation of the will; and
  • Based on the terms of the will, the beneficiary would receive a substantial benefit upon the testator’s death.

Fiduciary Relationships

Fiduciary relationships do not necessarily have to be formal in nature, but can arise out of an informal relationship that is moral, social, domestic, or personal. One of the most common examples is the relationship between an elderly or ailing testator and a caregiver. To prove that this type of relationship rose to the level of being fiduciary in nature, plaintiffs must provide clear, convincing evidence that is so strong and unmistakeable that it can only lead to one conclusion. By providing evidence of these elements, the plaintiff may establish a presumption that undue influence was exercised upon the testator.

If you live in Northbrook, Evanston, Skokie, Glenview, Glencoe, Highland Park, or the greater Chicago  area and you have reason to believe that a family member was unduly influenced during the preparation of his or her will, it is vital to retain the services of an attorney who can help you prove your case. Please contact Orlowsky & Wilson, Ltd. Attorneys at Law by calling 847-325-5559 and we will help you schedule a consultation.

Updated as of July 2019
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