Allegations of fraud and forgery often go hand in hand in an Illinois will contest, but are two separate grounds upon which a will can be invalidated under Illinois law. See 755 ILCS 5/6-4.
Fraud As Basis For Illinois Will Contest
To successfully invalidate a will in Illinois on the basis of fraud, the fraud must relate to:
[S]uch conduct as a trick or device by which a person may be induced to sign the paper under the impression it is something else, or to the alteration of the will after it is signed, or the substitution of another paper for part of the will after it has been signed, and matters of like character.
Swirski v. Darlington, 369 Ill. 188, 15 N.E.2d 856 (1938).
Fraud is never presumed. In re Gray’s Estate, 39 Ill.App.2d 239, 188 N.E.2d 379 (2d Dist.1963).
Forgery As Basis For Illinois Will Contest
Forgery is another basis to invalidate a will under Illinois law, and often goes hand in hand with fraud.
To establish forgery under Illinois law the will challenger may show that:
- The witnesses to the will were unworthy of belief, or
- The testator could not have been present at the time and place he was alleged to have signed the will, or
- That the will was not signed in the testator’s handwriting.
Sellers v. Kincaid, 303 Ill. 216, 135 N.E. 429 (1922).
Evidence Of Fraud and Forgery
In most cases of fraud and forgery, a questionable execution of the will occurs. Perhaps the will was not prepared by an attorney, not properly witnessed, or just looks suspect. However, mere suspicion is not enough. In re Gray’s Estate, 39 Ill.App.2d 239, 188 N.E.2d 379 (2d Dist.1963). Instead, fraud and forgery must be proved by clear and convincing evidence under Illinois law.
Generally, when forgery and fraud are alleged, “courts permit evidence to take a wide range and every fact and circumstance, no matter of how little probative value, which throws any light on the issue, is admissible.” Shelby Loan & Trust Co. v. Milligan, 372 Ill. 397, 24 N.E.2d 157 (1939).
Evidence of fraud and forgery could include a handwriting expert comparing the decedent’s known handwriting to that on the will, or evidence that the witnesses could not have been in the room with the decedent when the will was purportedly signed.
As with any Illinois will contest, although the presence of fraud and forgery might seem obvious to you, evidence is required to convince the trier of fact that fraud and/or forgery actually occurred. Additionally, the fraud or forgery will challenge must be filed on time — see Deadlines and Timelines In Illinois Probate.