If you recently lost someone close to you, the grieving process is likely still a big part of your life. At some point, you will learn the contents of the Last Will and Testament executed by your loved one. What do you do if something about that Will doesn’t sound right? What do you do if you believe the Will doesn’t reflect your loved one’s wishes? More specifically, what if you think someone else influenced your loved one during the execution of that Will? The Lincolnshire estate planning attorneys at Hedeker Law, Ltd. explain what is required to prove undue influence in a Will contest in Illinois.
Probate is the legal process that is typically required after the death of an individual. Probate is intended to serve several functions, including the authentication of a Last Will and Testament submitted on behalf of the decedent. If the Will is authenticated, the terms of that document will then be used to determine how the decedent’s estate assets are distributed. Probate is also when any challenges to a Will are litigated. To contest a Will you must allege one of the following grounds in Illinois:
- Lack of Testamentary Capacity
- Undue Influence
- Improper Execution
History of Undue Influence in Illinois
The historical basis for the doctrine of undue influence in Illinois rests upon the activities of a dominant party in either overpowering or inducing another to do something which that person would not do without such influence. This influence seldom rises to the level of physical duress or coercion. The usual case of undue influence involves subtle means ranging from flattery to attempts to encourage fear, isolation or loneliness on the part of the testator. “What constitutes undue influence cannot be defined by fixed words and will depend upon the circumstances of each case.” Estate of Hoover, 155 Ill. 2d 402, 615 N.E. 2d 736, 185 Ill. Dec. 866 (Supreme Court 1993).
The Presumption of Undue Influence
In Illinois, the law has long held that certain facts will give rise to a rebuttable presumption of undue influence. To raise this presumption, the plaintiff must establish four elements:
- A fiduciary relationship between the testator and a person who receives a substantial benefit under the will.
- A testator in a dependent situation in which the substantial beneficiaries were in dominant roles.
- A testator who reposed trust and confidence in such beneficiaries.
- A will prepared or procured and executed in circumstances wherein such beneficiaries participated.
More recently, Article IV(a) of the Illinois Probate Act, enacted in 2015, provides that certain transfers to caregivers are presumptively void. A “caregiver” is defined as “a person who voluntarily, or in exchange for compensation, has assumed responsibility for all or a portion of the care of another person who needs assistance with activities of daily living.” Also treated as caregivers under this article are the spouse, cohabitant, child, or employee of a caregiver. However, family members of the person receiving assistance — spouses, children, grandchildren, siblings, aunts, uncles, nieces, nephews, first cousins, and parents – are excluded from the definition of “caregiver” for purposes of this article.
The documents to which this law pertains are “transfer instruments” – that is, legal documents intended to effectuate a transfer effective on or after the transferor’s death, such as wills, trusts, deeds, forms designated as payable on death, contracts, and other beneficiary designation forms – but only if the transfer instrument was signed on or after January 1, 2015, the effective date of the law. The legislation provides that in any civil action where a transfer instrument is challenged, there is a rebuttable presumption that the transfer instrument is void if the transfer is to a caregiver and the fair market value of the transferred property exceeds $20,000.
The new law effectively shifts the burden in a claim of undue influence when a caregiver is involved. Instead of the contestant in a Will contest having to prove that a caregiver exercised undue influence over the decedent, the burden of proof shifts to the caregiver to prove that they did not.
In the event the target of your claim of undue influence was not a caregiver, the burden remains on you to prove undue influence using the facts and circumstances surrounding the execution of the Will.
Contact Lincolnshire Estate Planning Attorneys
Please join us for a FREE upcoming seminar. If you have questions or concerns regarding proving undue influence in an Illinois Will contest, contact the experienced estate planning lawyers at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.