Losing a loved one is an emotionally draining experience, which is usually not the best time to make important decisions. If, however, you question the authenticity of the decedent’s Last Will and Testament, you will need to decide whether or not to pursue a Will contest. Contesting a Will is often a lengthy, and emotionally draining, experience. If you have reason to believe that the Will submitted for probate is not a valid Will, and the outcome of the probate process will directly affect you, it may indeed be in your best interest to initiate a Will contest. Every Will contest is unique which is why you should consult with an experienced probate attorney before making a final decision; however, it may help you to learn more about what is involved when you contest a Will.
What Is Probate?
The estate you leave behind after your death will consist of everything you owned, or in which you had an ownership interest, at the time of your death. Ultimately, all of those estate assets need to be transferred to the intended beneficiaries and/or legal heirs of the estate. Before that can happen, however, your estate must go through the legal process known as probate. During probate, your estate assets are identified, secured, and valued. Creditors are notified and valid claims paid, including any taxes owed to Uncle Sam. Probate is also when any challenges to the validity of your Last Will and Testament will be litigated.
Do You Have Standing to Contest the Will?
In the State of Illinois, the first hurdle you must cross if you wish to contest a Will is determining if you have “standing” to initiate the litigation. Standing refers to the legal right to bring the legal action, in this case, a Will contest. To have standing, a potential contestant must have a “direct, pecuniary, existing interest which would be detrimentally affected by the probate of the proffered Will.” As a general rule, this includes beneficiaries under the Will submitted to the court, beneficiaries under a previous Will, legal heirs of the estate, and sometimes a creditor.
Has the Time Frame for Contesting the Will Expired?
Another consideration if you wish to contest a Will is whether you are doing so in a timely manner. In Illinois, a Will contest must be filed within six months after the court enters an order which admits the Will to probate.
Do You Have the Legal Grounds to Contest a Will?
To initiate, much less succeed, at contesting a Will, you must allege legal grounds that, if proven, will invalidate the Will. A Will contest is not an opportunity for a beneficiary or heir to complain about the inheritance received (or not received) under the terms of the Will. In the State of Illinois, grounds on which a Will may be declared invalid include:
- Lack of Testamentary Capacity – testamentary capacity is required to execute a Will. The law defines testamentary capacity by looking at whether, at the time of execution, the Testator knew:
- the nature of your acts
- the extent of your property
- the proposed disposition of your property
- the natural objects of your bounty
- Fraud – includes numerous situations, such as tricking the Testator into signing a document that he/she did not realize was a Will or inducing the Testator to make gifts to beneficiaries based on fraudulent information provided by someone.
- Undue Influence – refers to the use of pressure or manipulation exerted on the Testator during the execution of the Will that caused the Testator to make gifts that he/she would not otherwise have made without that pressure or manipulation.
- Improper Execution – focuses on the technicalities of execution, such as the requirement that a Will be signed in the presence of witnesses.
- Revocation – if the Testator made another Will after the one submitted to probate, or otherwise legally revoked the Will that was submitted to probate, the Will is invalid.
Contact Illinois Probate Attorneys
For additional information, please download our free estate planning worksheet. If you have additional questions or concerns about how difficult it is to contest a Will in Illinois, contact the experienced Illinois probate attorneys at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.