When a loved one dies, a period of grieving and heightened emotions typically follows. There are also practical and legal steps as well, however, that follow a death. To begin with, the decedent’s Last Will and Testament must be submitted to the appropriate court as part of the probate process. What should you do, however, if you question the authenticity of the Will submitted for probate? The Waukegan estate planning lawyers at Hedeker Law, Ltd. explain how to contest a Will.
What Is Probate?
When an individual dies, the decedent’s estate is required to go through probate. If a Will is located, the Will is submitted, along with a petition to open probate and a certified copy of the decedent’s death record, to the appropriate probate court. The probate process serves several functions, including allowing creditors the opportunity to file claims against the estate and eventually transferring estate assets to beneficiaries and/or heirs. One of the first tasks of the probate court, however, is authenticating the decedent’s Will. If someone believes the Will is not valid, therefore, a Will contest may be initiated. Only an “interested person” may contest a Will though. This typically includes a spouse and legal heirs of the estate, a beneficiary under the current Will or under a previous Will, or even creditors of the estate.
Grounds for a Will Contest
Contrary to popular belief, you cannot contest a Will based on the fact that you are unhappy with the inheritance left to you in the Will, or lack of inheritance, as the case may be. In reality, to contest a Will you must allege, and ultimately prove, legal grounds on which the Will could be declared invalid. Most issues relating to Wills, trusts, and estates are governed by state law, including the available grounds a contestant may allege to contest a Will. In the State of Illinois, those grounds include:
- Lack of Testamentary Capacity – this is a little more complicated than it sounds. To defend a claim of lack of testamentary capacity it must be shown that the Testator knew the nature of his/her acts, knew the extent of his/her property, knew the proposed disposition of his/her property and also knew the natural objects of his/her bounty.
- Fraud – this can cover a wide range of situations from tricking a Testator into signing a document that the Testator did not realize was a Will to inducing a Testator to make gifts in a Will based on fraudulent information.
- Undue Influence – this occurs when someone manipulates a Testator, often by isolating the individual, into executing a Will, or making specific gifts in a Will, that the Testator would not otherwise have signed or made had the influence not been present.
- Improper Execution – for a Will to be valid, certain conditions must be met during the signing of the document, such as the presence of witnesses. If those conditions were not present, the Will could be invalid.
- Revocation – if the Testator executed a subsequent Will, or otherwise revoked the Will submitted to probate, that Will is invalid.
The Will Contest Process
Because a Will contest is typically a lengthy, emotional, and expensive endeavor, it is always best to consult with an experienced estate planning attorney before deciding how to proceed. If you do decide to go forward, you will ideally need to move forward before the court has accepted the Will for probate. Once you have initiated the challenge, it is litigated much like any other civil litigation. The Executor of the estate has a duty to defend the Will submitted for probate. Both sides will “discover” evidence and witness information and will typically attempt to negotiate a settlement that avoids trial. The court may also encourage mediation as a possible route to settlement. If it becomes clear that an out of court settlement is not forthcoming, the case will be set for trial at which point the issue will be settled. If you are successful, the Will is invalidated and the court will look for another valid Will to use to distribute the estate. If none is found, the Illinois intestate succession laws will be used to distribute estate assets. If you are not successful, the Will submitted for probate remains valid and is used to distribute the estate assets.
Contact Waukegan Estate Planning Lawyers
Please join us for a FREE estate planning seminar. If you have questions or concerns regarding contesting a Will in the State of Illinois, contact the experienced estate planning lawyers at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.
Latest posts by Dean R. Hedeker (see all)
- How to Use an Irrevocable Living Trust to Protect Assets - May 22, 2018
- How to Use an Irrevocable Living Trust to Protect Assets - May 17, 2018
- Probate Obstacles to Avoid - May 15, 2018