What are Some of the Difficulties Encountered When Contesting a Will or Trust?

Contesting A Will Or Trust

Many people believe that challenging something in a will is an easy process. However, although it is possible, it is not easy, and people who try to challenge a will or a trust, often face numerous legal hurdles.

Getting Evidence

One hurdle that someone who tries to contest estate documents is death itself. This sounds obvious, but contesting a living trust, where the grantor is still alive, is much easier. When contesting a trust after the creator of the trust has passed, or a will involves looking back to when the instruments were created and trying to recreate and prove the circumstances surrounding the creation of those instruments.


You will also have to show that you have the standing to contest the will in Illinois. This means showing that, had the will or trust been drafted the way you allege that it should have been drafted, you stood to gain something from the estate that you are currently not getting.

Sometimes this is clear, such as when you have left something in a will and then the will was amended to eliminate your interest. Then, you could have grounds to contest the validity of the talent that eliminated you. Other times, however, standing can be difficult to prove.

Challenging Capacity

Your Lincolnshire estate planning lawyer can explain to you when a will or trust can be challenged. Difficulties that you may face in challenging a will depend on the basis of the challenge.

If you are challenging the grantor’s mental capacity or alleging that the grantor didn’t know, or appreciate what he or she was doing when creating or altering estate documents, you will need to show the court what the grantor’s mental capacity was. This will have to be done through witnesses.

However, as you can imagine, this is very subjective. One person may say that “dad was fine,” while another can interpret dad’s behavior as being “dementia.” The task of showing incapacity gets a bit easier if there is a clear medical diagnosis, but even that is not determinative. One person in the early stages of dementia may clearly appreciate and understand what he is doing, while another may not.


You can also try to say that there was influence between the grantor (the deceased) and someone else, who assisted in the drafting of the will, or who influenced the grater to change the will or other estate documents.

This involves an in-depth analysis of the relationship between the grantor and someone else (whoever you contend influenced the grantor). And this relationship could be one that you may not have much information about, and which you may not have been privy to.

Even if you demonstrate that an influential relationship existed between the deceased and another person, you will then have to show that the influence exerted through the course of the personal or professional relationship, is what caused the deceased to modify or draft the estate documents the way they were drafted.

Contact Our Lincolnshire Estate Planning Attorney

Challenging a will or trust takes a full analysis of the evidence and a determination of whether you have a valid case to challenge a will. Your Lincolnshire estate planning attorney at Orlowsky & Wilson, Ltd at 847-325-5559 can help you to learn more about challenging a will or a trust.

Updated as of July 2019
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