If you recently lost a family member or loved one and you are concerned about the Last Will and Testament that has been introduced for probate, one option is to initiate a Will contest. In the State of Illinois, you must allege (and eventually prove to be successful) legal grounds on which the Will could be declared invalid. One of the most frequently used grounds is “incapacitation,” more commonly referred to as “lack of testamentary capacity.” How do you prove that the Testator lacked the necessary capacity to execute his/her Will? Litigating a Will contest often involved complex legal arguments and confusing facts which is why you should always consult with an experienced attorney before moving forward. In the meantime, however, the Lincolnshire estate planning lawyers at Hedeker Law, Ltd. offer some basic information about how to prove lack of testamentary capacity in a Will contest.
Grounds on Which a Will Could Be Invalidated
One of the preliminary considerations when challenging a Will is which grounds to use. Simply being unhappy with your inheritance (or lack thereof) under the terms of a Will does not legally justify initiating a Will contest. For the court to entertain a Will contest, the contestant must allege one of the legal grounds on which a Will may be declared invalid in the State of Illinois including:
- Lack of Testamentary Capacity
- Fraud
- Undue Influence
- Improper Execution
- Revocation
What Is Testamentary Capacity?
If you choose to challenge the validity of the Will, you will have the burden of proving the grounds which you allege. To prove that a Testator lacked testamentary capacity, you need a clear understanding of what is required to have testamentary capacity. Judges, attorneys, and scholars alike have tried to find a universally acceptable definition for testamentary capacity, to no avail. All agree, however, that the capacity needed to execute a Will is far less than that needed to enter into a contract or that required in other areas of the law.
Proving Lack of Testamentary Capacity
Typically, the Probate Court presiding over a Will contest will consider several things when deciding if a Testator had the requisite capacity, including whether:
- The testator had the ability to know the nature and extent of his property (or “bounty”);
- The testator had the ability to know the natural objects of his bounty;
- The testator had the ability to make a disposition of his property in accordance with some sort of plan formed in his mind.
Another important aspect of determining testamentary capacity is that capacity, or lack of capacity, is measured at the time that the Will is executed. A Testator could have suffered bouts of dementia for weeks, even months, leading up to the execution of the Will; however, if the Testator was lucid and was experiencing a period of clarity at the time the Will was executed, the court would likely find that capacity existed.
For a contestant, this means that while medical records showing dementia, or other serious illness, may indeed be helpful, they will likely not be sufficient. Proving lack of capacity requires more immediate evidence, such as credible witnesses that knew the Testator well enough to testify that he/she lacked capacity at the time the Will was executed.
Contact Lincolnshire Estate Planning Lawyers
For additional information, please download our FREE estate planning worksheet. If you have additional questions or concerns about proving lack of testamentary capacity, or contesting a Will in general in Illinois, contact the experienced Lincolnshire estate planning attorneys at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.
- How Can I Terminate a Living Trust? - September 24, 2019
- Is an AB Trust Right for My Estate Plan? - September 12, 2019
- How Can I Include Philanthropy in My Estate Plan? - September 4, 2019
