What is a Will?
In Illinois, if someone dies with a Last Will and Testament, that will should be filed with the local county’s clerk’s office. A Last Will and Testament generally designates who will act as the estate’s representative or Executor. The will also designates legatees, or those individuals or entities, who receive either specific bequests or a share of the estate.
In order for a will to be deemed valid and admitted to probate, it must meet certain requirements, including 1) the will must be written, 2) signed by the testator (the person making the will) 3) be witnessed by at least 2 credible witnesses who saw the testator sign the will and 4) contain an attestation statement, where the witnesses state the testator is of “sound mind and memory.”
Once a will is admitted to probate, there is a legal process where certain individuals can initiate a will contest.
Who can Contest a Will
According to the Illinois Probate Act, an “interested person” may file a will contest. An interested person is defined as an heir, creditor, legatee or anyone entitled to a spouse or child’s award.
- Heirs – If a person dies without a will, their estate will pass to their heirs at law. A person’s heirs are determined by their legal relationships at the time of their death. The Probate Act dictates who is an heir to an estate and heirship is established through an Affidavit of Heirship, which is filed with the Court. A person is not required to leave their estate to heirs in a Last Will and Testament. In the event that an heir is disinherited in a will, they may be able to contest the will to prove the testator disinherited them under duress or by accident.
- Creditors – If a testator owes money when they die, creditors may be able to pursue payment from the remaining estate. While a creditor may be a person, it may also be a business or corporation who the testator owes money to at the time of their passing, for example a credit card or mortgage company.
- Legatees – A legatee is a named beneficiary of a will. Legatees may or may not be related to the testator.
When Should Someone Contest a Will?
Will contests are complex and require a legal basis to establish that a will should be set aside. The following are legal theories under which someone can begin contesting a will in Illinois:
1.Undue Influence
Undue influence is when some person improperly influences the testator to create a will that they would not otherwise have made. The influence may be physical or emotional and does not need to be overt. Undue influence can be through coercion, deception or fraud. The contestant must provide evidence to the Court or jury, which will weigh the specific circumstances in the dynamic of the drafting of the will in question. What may be undue influence in one situation may not be in another.
2.Lack of Capacity
If the testator did not have testamentary capacity at the time of the will’s execution, the will can be contested. Testamentary capacity is defined as the ability to know the objects of one’s bounty, the kind and character of the assets, and to create a plan for the disposition of those assets. If the testator did not have testamentary capacity at the time of a will’s signing, an interested party can present evidence to show that and ask that the will be set aside.
3.Forgery
Alterations to a validity executed will may constitute fraud, which may invalidate a will. A will contestant may prove forgery of a will by demonstrating the testator was not at the place and time that the will was executed, the will was not signed in the testator’s handwriting, or the witnesses to the will’s execution cannot be trusted.
Process to Contest a Will
Any interested person has 6 months after the admission of a will to probate to contest a will. Once the interested person has shown they have standing to bring a will contest, they must state the legal basis for why the will should be invalidated.
Heirs or legatees can be discouraged from contesting a will in the event that it includes of no-contest clause. If a beneficiary contests a will and is unsuccessful in doing so, they could lose their inheritance. A testator may include a no-contest clause to disincentivize legal disputes over the will. Though no-contest clauses are technically enforceable in the state of Illinois, if there is a valid reason to contest a will, it may still be advisable to do so.
If you have good reason to believe that your loved one’s will should be contested, speak with a lawyer about your options. If you have any questions about contesting a will in Illinois, or estate planning, please contact us.