A will can be contested in an Illinois probate proceeding on a number of grounds.
Lack of Proper Formalities.
To make a valid Illinois will, the will must (1) be in writing, (2) signed by the testator or by some person in his presence and by his direction, and (3) attested in the presence of the testator by 2 or more credible witnesses. 755 ILCS 5/4-3. If a willwas not executed with the proper formalities, it can be contested and found invalid under Illinois law.
A will can also be contested in Illinois if the will is the product of undue influence. Undue influence depends on the circumstances of each case.
“The exercise of undue influence may be inferred in cases where the power of another has been so exercised upon the mind of the testator as to have induced him to make a devise or confer a benefit contrary to his deliberate judgment and reason.” In re Estate of Hoover. In many cases, the undue influencer will upset a long established estate plan where the bulk of the estate was to pass to the direct descendants or other close relatives of the decedent. Some undue influencers are new friends or acquaintances of the decedent who “befriend” the decedent in the last months or years of life, typically after the decedent has suffered some decline in mental ability. In other situations, one child of the decedent, often a caregiver will coerce the decedent to write the other children out of the will. Undue influencers can also be health care workers or live in aides who implicitly or explicitly threaten to withhold care unless the estate plan is changed in favor of the health care worker.
The undue influencer may make false or misleading representations concerning the character of another, which may be so connected to the execution of the will as to make the will invalid on the grounds of undue influence. In re Estate of Hoover
Lack of Capacity.
To make a valid will under Illinois law, a testator must have testamentary capacity.
“Testamentary capacity requires that the testator have sufficient mental ability to know and remember the natural objects of her bounty, to comprehend the kind and character of property held, and to make disposition thereof according to some plan formed in the testator’s mind.” In re Estate of Osborn. Typically, incompetence is established through a prior medical diagnosis of dementia, Alzheimer’s, or psychosis, or through the testimony of witnesses as to the irrational conduct of the deceased around the time the will was executed.A will can be declared void if lack of capacity can be proven.
A will can be contested in Illinois because it has been revoked. Under Illinois law, a will may be revoked only (1) by burning, cancelling, tearing or obliterating it by the testator himself or by some person in his presence and by his direction and consent, (2) by the execution of a later will declaring the revocation, (3) by a later will to the extent that it is inconsistent with the prior will or (4) by the execution of an
instrument declaring the revocation and signed and attested in the manner prescribed by this Article for the signing and attestation of a will. 755ILCS5/4- 7. Therefore,if someone offers a will for probate, and you have a later, inconsistent will or an instrument declaring the will revoked and properly signed and attested, you have grounds to challenge the earlier will as revoked.
Fraud, Forgery, Compulsion, or Other Improper Conduct.
A will can also be held invalid in Illinois if proof of “fraud, forgery, compulsion, or other improper conduct” is shown. 755 ILCS 5/6-4. For example, if it can be demonstrated that a fraud was exercised on the testator, a will can be found invalid. Or, if evidence is presented that the testator’s signature on the will is a forgery, the will could be found invalid on those grounds as well.
How long do I have to contest a will in Illinois?
The time to contest a will in Illinois can be short. If a will is admitted to probate, any interested person has six months after the admission to probate to contest the validity of the will. 755 ILCS 5/8-1. If the will is not challenged during this six month time period, the action will be barred.