What Steps Do I Need to Take If I Want to Contest a Will?

Are you concerned that your loved one’s will was not made according to his or her actual interests? Or did you recently lose a loved one and learn that another will was drafted toward the end of his or her life at a time in which capacity was in question? Not all states allow individuals to contest a will, but Illinois law does allow certain parties to contest a will under certain circumstances. Will contests are governed by Article VIII of the Illinois Probate Act of 1975. If you want to contest a will, it is essential to understand when you can (and cannot) contest a will, and the steps you will need to take in order to do so.

1. Determine Whether You Have Standing to Contest the Will

Not everyone-and not just anyone-can contest a will in Chicago or elsewhere in Illinois. In order to be able to contest a will, you need to have standing to do so. The term “standing” refers to whether or not you are in a legal position to contest the will. To have standing, a person must be an “interest party” under Illinois law. What is an interested party? In short, it is someone who has some kind of interest in the deceased’s estate and who could be harmed or otherwise affected if the terms of the will were carried out.

Examples of people who may have standing as an “interested party” to challenge a will can include the following:

• Beneficiaries who are named in the will (such as the spouse or child of the deceased, other family members of the deceased, business partners, or charitable organizations to which the deceased left assets);
• Living heirs whether or not there is a will (such as the surviving spouse and/or surviving children, and if there is no surviving spouse or descendants, then the surviving parents and/or siblings of the deceased); and
• Estate creditors (who may have claims against the estate).

2. Determine Whether You Have Grounds for Contesting the Will

If you do in fact have standing as an “interested party” to contest a will, the next step is determining whether you have grounds to contest the will. Not only do you need to be in a certain position as an interested party, but you must also have a valid reason to contest the will under Illinois law. Grounds typically involve some reason that the testator-the person making the will-did not make the will legally. Examples of grounds for contesting a will may include but are not limited to:

• Undue influence (someone had undue influence over the testator, pressuring him or her when she or he was drafting the will);
• Incapacity (the testator was incapacitated, or did not have capacity according to the law, at the time the will was made);
• Fraud or forgery (another party added or removed material from the testator’s signed will to make it look like the current document is the one drafted by the testator, or the testator signed the will but thought it said something different or had different contents; and
• Revocation (testator revoked the will prior to his or her death).

3. Determine Whether You Are Contesting the Will Within the Statutory Time Period

If you have standing and grounds to contest a will, the next step is to determine if you can contest the will under the statutory time limits. The statute of limitations for contesting a will is six months after the admission of the will to probate. To be clear, you must contest the will within the six-month period or else the law says that you have lost the chance to do so.

4. File Documents to Contest the Will with the Probate Court to Begin the Process

Once you have determined that you can legally contest the will, you will need to file all of the necessary documents to contest the will. An experienced Chicago contested estates attorney can help. Once you file the required documents, there will be a discovery process, and it may be possible to settle the will contest outside of court. However, your will contest may need to go to trial, at which point the court will determine whether the will is valid.

Contact a Chicago Contested Estates Attorney

Do you have questions about contesting a will? A contested estates lawyer in Chicago can assist you. Contact Orlowsky & Wilson, Ltd. online or by phone at 847-325-5559.