New Illinois Law Clarifies Disabled Testators

Individuals considering planning for their future need to be aware of a new Illinois probate law that took effect in January that may affect whether their last will and testament is deemed valid by the courts upon their passing. However, as with many aspects of estate planning, many of these issues can be mitigated with careful planning and an attention to detail.

The new law, Public Act 099-0302, helps clarify definitions regarding when a testator (person leaving a will) is incapacitated beyond the point of crafting a valid will and testament. While there were always provisions in Illinois probate laws to invalidate wills in the event of a disabled testator, the new law provides much more clarity and even an avenue to overcome a finding of incapacitation.

When can a will be invalidated under the new Illinois probate laws?

Under Illinois Public Act 099-0302, there is a rebuttable presumption that a will is invalid or void if the testator is deemed mentally impaired by the courts and a plenary guardian is appointed. Plenary guardians are persons appointed by courts to exercise all rights over a ward in their affairs.

Furthermore, even the appointment of a limited guardianship over an individual deemed devoid of testamentary capacity may affect his or her ability to craft a valid will. Limited guardianship means an individual still has the ability to handle some of his or her affairs but requires oversight by another in others.

Can the rebuttable presumption be overcome?

Even if there is a rebuttable presumption that the will and testament is void, there are certain situations where courts may overrule the finding and allow the testament to stand. Overcoming the presumption of incapacitations can be difficult and parties seeking to do so should strongly consider retaining experienced legal counsel.

  • The rebuttable presumption may not apply if courts entered an order allowing the will to stand. This amending of 755 ILCS 5/4-1 only applies to wills executed or modified after January 1 2016.
  • If clear and convincing evidence is presented the testator possessed the capacity to execute the will, the codicil may stand.

Why do courts prevent wills from being executed by incapacitated persons?

As with most states, persons must be of sound mind and body when executing wills to allocate estates upon passing. These laws were set up with the best intentions of both the testator and his or her beneficiaries to ensure estates are properly crafted and beneficiaries or guardians do not take advantage of testators by convincing them to create estates they would otherwise have not executed.

Estate planning attorneys in Illinois

If you or your family members have questions about crafting a will or challenging the validity of a loved one’s last will and testament, the experienced Skokie estate attorneys can help you answer these questions in your time of need. Our Chicago area estate attorneys serve clients throughout Lake and Cook County. Contact us for a consultation about your case.

 

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