Common Grounds to Contest A Will

 Posted on April 30, 2024 in Estate Planning

When a loved one passes away, his or her last will and testament often become the focus as families determine how assets get distributed. However, there are situations where a will may not accurately reflect the deceased’s true wishes or follow proper legal procedures. In such cases, contesting the will in probate court allows interested parties to challenge its validity. An Illinois lawyer can help you determine if you believe you have grounds for contesting a will.

Lack of Testamentary Capacity

For a will to be valid in Illinois, the testator (the person making the will) must have been of “sound mind and memory” when executing the document. This means he or she possessed the mental capacity to understand the nature and extent of the property, knew who his or her heirs were, and could make a rational plan for distributing assets. If the testator suffered from dementia or another condition that impaired mental abilities, this could serve as grounds to contest the will.

Undue Influence

A will can be contested if there is evidence that the testator did not act of his or her own free will, but rather was unduly influenced by another person through deception, coercion, or other improper conduct. This influence might come from a caregiver, family member, or anyone who stood to benefit from the will and exerted pressure on the testator.

Fraudulent Procurement

Fraudulent activities in the creation and execution of a will can also be grounds for contesting it. Such activities may involve forging the testator’s signature, altering the document’s language without permission, or misrepresenting the contents of the will. The important part is proving the testator did not knowingly approve the will.

Improper Execution

Illinois has strict will execution requirements that must be followed. Even minor deviations can potentially serve as grounds to contest a will’s validity. The will must be in writing, the testator must personally sign or direct another to sign in his or her presence, and two credible witnesses must be present when the testator signs or acknowledges his or her signature.

Witnessing requirements include the witnesses attesting the testator appeared of sound mind and free from undue influence. Remote or virtual will execution has additional strict procedures that must be followed. Issues with self-proving affidavits, missing pages, incomplete revisions, improper notarization, and similar errors can also constitute improper execution and invalidate a will under Illinois law.

No-Revocation Clauses and Time Limits Matter

A properly drafted will should contain an express clause revoking all prior wills and codicils (amendments). If this revocation clause is absent, an earlier will might still be valid, creating potential conflicts between documents.

It is important to act quickly when contesting a will in Illinois. There are relatively short time limits; for example, there are just six months to file a will contest after probate opens. Missing these deadlines could procedurally bar an otherwise valid claim.

Who Can Contest a Will?

In Illinois, typically only individuals with a legal interest in an estate have the standing to contest a will. This group may include the decedent’s current spouse, children, grandchildren, siblings, and occasionally more remote relatives or beneficiaries designated in an earlier will. Essentially, one cannot contest a will merely on the grounds of a personal belief that one deserves an inheritance.

Contact a Wheaton, IL Estate Planning Lawyer

If you feel a will should be contested, you do not have to sit back and be silent. A Lombard, IL estate planning attorney can help you with the steps you can take. Call A. Traub & Associates at 630-426-0196 to schedule a private consultation.