Testamentary Capacity In Illinois Will Contests

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Lack of testamentary capacity is a common ground for invalidating a will in an Illinois will contest.  A testator is required to have capacity to execute a valid will.

How Is Testamentary Capacity Defined In Illinois?

Testamentary capacity is defined in Illinois as the “mental ability to know and remember who are the natural objects of [one’s] bounty, to comprehend the kind and character of [one’s] property, and to make disposition of the property according to some plan formed in [one’s] mind.” Beyers v. Billingsley, 54 Ill.App.3d 427, 369 N.E.2d 1320, 1328, 12 Ill. Dec. 306, 314 (3d Dist.1977).

Therefore, in order to invalidate a will based on lack of testamentary capacity in Illinois, the plaintiff must establish that the testator did not have the capacity to:

  1. Know and remember his children and immediate family, i.e., the natural objects of his bounty;
  2. Understand the property that the testator owns; and,
  3. Plan for the disposition of the testator’s property.

The Party Challenging a Will Has The Burden Of Proving Lack Of Testamentary Capacity

Illinois law presumes the capacity of every person until the contrary is proved. Sloger v. Sloger, 26 Ill.2d 366, 186 N.E.2d 288 (1962).  Pursuant to 755 ILCS 5/4-1(a):

Every person who has attained the age of 18 years and is of sound mind and memory has power to bequeath by will the real and personal estate which he has at the time of his death.

The party contesting the validity of a will on the grounds of lack of testamentary capacity has the burden of proving that the testator lacked testamentary capacity.  Estate of Wrigley, 104 Ill.App.3d 1008, 433 N.E.2d 995, 1003, 60 Ill. Dec. 757, 765 (1st Dist.1982).

Can a Disabled Adult With a Guardian Execute a Will?

Yes, it possible under Illinois law for a disabled adult with a court-appointed guardian to execute a valid will in Illinois.

If a plenary guardian has been appointed for the disabled adult, and the court has found that the adult lacks testamentary capacity, a presumption arises under Illinois law that any will executed after the appointment of the guardian is void.  This presumption only applies to wills executed after January 1, 2016, pursuant to 755 ILCS 5/4-1(b), which states:

Except as stated herein, there is a rebuttable presumption that a will or codicil is void if it was executed or modified after the testator is adjudicated disabled under Article XIa of this Act and either (1) a plenary guardian has been appointed for the testator under subsection (c) of Section 11a-12 of this Act or (2) a limited guardian has been appointed for the testator under subsection (b) of Section 11a-12 of this Act and the court has found that the testator lacks testamentary capacity. The rebuttable presumption is overcome by clear and convincing evidence that the testator had the capacity to execute the will or codicil at the time the will or codicil was executed.

How Do You Prove Lack Of Testamentary Capacity In Illinois?

Evidence that a testator lacked testamentary capacity must relate to a time at or near the execution of the will.  Manning v. Mock, 119 Ill.App.3d 788, 457 N.E.2d 447, 457, 75 Ill. Dec. 453, 463 (4th Dist.1983).  An Illinois will can only be invalidated on the ground that the testator lacked testamentary capacity if the plaintiff can prove that the testator lacked testamentary capacity at the time the will was executed.

Therefore, if a testator was diagnosed with dementia three years after executing the contested will, and began needing assistance with the activities of daily living at that time, such evidence is not particularly compelling since it is remote in time to the execution of the will.  However, if the testator was admitted to the hospital and exhibited signs of confusion and memory impairment a week after executing the contested will, such evidence is more persuasive that the testator lacked testamentary capacity at the time the will was signed.

Evidence of physical impairment can also be considered on the issue of testamentary capacity.  Manning v. Mock, 119 Ill.App.3d 788, 457 N.E.2d 447, 457, 75 Ill. Dec. 453, 463 (4th Dist.1983); In re Basich’s Estate, 79 Ill.App.3d 997, 398 N.E.2d 1182, 1185, 35 Ill. Dec. 232, 235 (1st Dist.1979).

Evidence commonly introduced to prove lack of testamentary capacity include the testator’s medical records from around the time of the execution of the will.  Testimony from witnesses who spent time with the decedent around the time of the will execution is also helpful to prove or disprove testamentary capacity.

Expert witnesses are also often used to interpret medical records and the impact of a testator’s physical and mental condition on testamentary capacity.  Read our interview with a clinical neuropsychologist to learn why expert testimony and analysis is often critical in these cases.

For an overview of other grounds to contest a will in Illinois, read How To Contest a Will In Illinois.