Can I File a Will Contest?

 Posted on November 29, 2017 in Estate Planning

The reading of a deceased person’s will is often portrayed in movies and on television as a highly dramatic event. Usually, some conflict, plot point, or comic relief revolves around heirs being surprised about what they will be receiving as an inheritance. In some cases, the scene is meant to draw attention to someone being left out of the will. In real life, things are rarely so theatrical, though the feeling of being neglected or left out of a loved one’s will can be quite unpleasant and possibly offensive. Depending on the situation, such a person may wish to contest the will—especially if he or she believes that he or she was excluded by mistake or due to fraud of some kind.

Grounds of a Will Contest

If a loved one’s will left you with less of inheritance that you expected or none at all, contesting the will could be an option, but doing so is not likely to be easy. First, you must understand that a will contest must be based on legitimate grounds. A decision that you do not agree with is not enough. For a will contest to be successful, you will need to show that:

• The deceased was unduly influenced in creating the will;
• The deceased lacked the testamentary capacity to create a valid will;
• The deceased signed the will without knowing what it contained;
• The will being probated was previously revoked; or
• The will was forged or otherwise fraudulent.

You should also realize that even if you are successful in having the will set aside, you will not automatically get the inheritance you want. In most cases, setting aside a will means that a previous version of the will be used. If there is no previous will, the person’s estate will be divided in accordance the state laws of intestate succession.

Standing to File a Contest

To file a will contest, you must also have a legitimate interest in the situation. For example, if you were to attempt to contest the will of someone you do not know, your case would be dismissed immediately. Illinois law gives standing only to those with “a direct, pecuniary, existing interest which would be detrimentally affected by” allowing the will in question to stand. Courts in Illinois have determined this includes anyone who would benefit if the contested will were set aside, including heirs named in previous versions of the will. If you are not related to the decedent and have never been included in any iteration of his or her will, you will probably not be successful in getting your case heard.

Call Us for Help

The decision to contest a will can dramatically affect your future and your relationship with your family. It should not be taken lightly. Contact an experienced Lombard probate attorney today and get the guidance you need. Call 630-426-0196 for a confidential consultation at A. Traub & Associates.

Sources:

http://www.illinoiscourts.gov/CircuitCourt/CivilJuryInstructions/200.00.pdf

http://ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2104&ChapterID=60