The loss of a loved one brings with it a wide range of emotions, often including anger, depression, and denial among them. When the terms and provisions of the decedent’s Last Will and Testament are revealed, it can cause another emotional response altogether, especially if those terms and provisions are not what you were expecting or anticipating. If you find yourself questioning the validity of a loved one’s Will, you may have the right to legally challenge the Will during the probate of the estate. Given the complexity of a Will contest, and the importance of the outcome, you should consult with an experienced probate lawyer if you are considering challenging the Will. In the meantime, a probate lawyer offers tips on how to recognize a fraudulent Last Will and Testament.
Are You a Beneficiary or Heir?
Before analyzing the Will to try and determine if it is valid or not, there are a few preliminary considerations worth noting. For example, to pursue a Will contest at all, you must be an “interested person” which typically means you are a beneficiary under the Will in question, a beneficiary under a prior Will, or a legal heir of the estate. If you are a beneficiary or heir, keep in mind that simply being unhappy with the inheritance left to you — or lack of inheritance — under the terms of the Will is insufficient cause to initiate a challenge to the Will. Instead, you must have a valid legal ground on which a judge could invalidate the Will. In the State of Illinois, common reasons why a Will might be declared invalid include:
- Lack of testamentary capacity
- Undue influence
- Fraud or forgery
- Improper execution
Signs to Help you Recognize a Fraudulent Will
Sometimes, a close loved one need do nothing more than read through a Last Will and Testament to be certain that it is fraudulent. Other times, however, the authenticity or fraudulent nature of a Will is not immediately clear. To help you decide if a loved one’s Will is fraudulent, look for the following common signs:
- Questionable execution – was the Will not prepared by an attorney? Was the Will not witnessed by two witnesses or do the witnesses themselves provide reason to question the validity of the Will?
- Significant variance in gifts – people do not always honor promises they made nor do they always distribute their estate assets in the manner people were anticipating; however, if the Will in question distributes the estate in a significantly different way than you anticipated or contrary to the manner in which the Testator told you it would be distributed, it might be a sign that the Will is fraudulent.
- Exclusion – a Testator has the right to distribute his/her estate in any way desirable. On the other hand, if the Testator excluded a spouse or child without explaining why, it can be a sign that something is amiss.
- Gifts to charities, religious organizations, healthcare workers, or caregiver – sadly, older individuals often make easy targets for unscrupulous individuals who prey on them for financial gain. A large gift to a charity (especially one you have never heard of) or religious organization, particularly if the Testator was not overly active in the charity/religious organization when alive, can indicate undue influence occurred during the creation of the Will
- Will executed during illness – when a Testator is seriously ill, and/or suffering from the early stages of dementia at the time a Will was executed, it can be a sign of fraud. Specifically, the legal issue to consider is whether the decedent had the requisite mental capacity needed to create a Will.
Contact a Probate Lawyer
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns regarding fraudulent Wills, or if you wish to discuss pursuing a Will contest, contact the experienced probate lawyers at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.