Handling the emotional aftermath that follows the death of a loved one is not an easy task. As a survivor, you may go through all the stages of grief, including anger and denial before reaching acceptance. It can be even harder to accept the death of a loved one when you have questions and concerns about their last days, weeks, or months. What can you do if those concerns cause you to question the Last Will and Testament left behind by your loved one? The Lincolnshire estate planning lawyers at Hedeker Law, Ltd. explain who can contest a Will in Illinois and what happens if you decide to do so.
Probate Basics
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. Anyone in possession of an original Will is required to submit that Will to the appropriate court to begin the probate process. It is during probate that you would contest the Will submitted to the court if you believe you have grounds on which to do so.
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.
Do You Have Grounds on Which to Contest the Will?
The next hurdle involves the issue of grounds on which to contest the Will. Simply being unhappy with the inheritance left to you (or not left to you as the case may be) is insufficient cause to contest a Will. Instead, you must allege one of the following grounds on which the Will can be declared invalid:
- 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.
What Happens When You Contest a Will?
Once you have initiated a Will contest, 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.
Contact Lincolnshire Estate Planning Lawyers
For additional information, please download our FREE estate planning worksheet. If you have additional questions or concerns regarding a Will contest in the State of Illinois, contact the experienced Lincolnshire estate planning lawyers at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.
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