Drafting and completing your will requires careful consideration of how you’ll distribute your assets, and to whom. Many people don’t consider the possibility that their will could be contested in court, delaying the completion of their estate. But it’s always possible that someone could contest your will, with or without a good reason to do so.
Leaving a will tells your survivors how to handle your final affairs, and how and to whom to distribute your assets. A person with children will also name their guardians. Without a will, the state of Illinois will decide how your affairs are handled and your assets are distributed according to state law.
A will can lead to conflict for family members during a particularly emotional time. A friend or family member who believes they have been slighted can contest a will if they believe they have legal grounds. Someone who thought they would or should be a beneficiary but was omitted from the final will may decide to initiate litigation to “right” the perceived wrong. There are also valid reasons for contesting a will, even if the person bringing the action has no stake in the matter.
Grounds For Contesting A Will
Wills can be contested within six months of their admission into probate court. A personal representative for the decedent and any executors is required to defend the estate against contests and challenges.
Anyone contesting a will must have a valid and legal reason for doing so. Contesting a will is difficult and expensive and may cost more than the estate is worth. The Illinois Probate Act provides that the only ones allowed to contest any will are “interested persons.” That is individuals and institutions who would financially benefit if the will were set aside, such as an heir, a beneficiary, or a creditor.
An individual who contests a will must demonstrate:
• Lack of testamentary capacity
• Undue influence (see below)
• Forgery or fraud
• Ignorance of contents by the testator
• Failure to comply with the formal requirements for executing the will
• Revocation, where the testator intended to revoke the will and acted, such as tearing it up
• The testator was forced to sign the will
• The will was created under false pretenses
Should the will be found to be invalid, the estate will be distributed according to a previous version of the will or in accordance with Illinois’ intestacy laws.
The “No-Contest” Clause
A frequent tool used to thwart estate litigation to a will is the “no-contest” clause. The clause states that if anyone contests the will, they will lose anything they were slated to inherit. A person seeking a larger share of the estate as their inheritance could lose any inheritance if they contest. Conversely, a person who was omitted from the will who believed they should have been included would have nothing to lose.
Accepting something from the will does not stop a beneficiary from contesting the will even with a no-contest clause. However, Illinois law isn’t completely clear on enforcing these clauses.
Undue Influence and Elder Financial Abuse
Unusual and unexpected updates to a person’s will may be the result of undue influence. Someone who became close to the individual in the last months of their life may have persuaded a person to change their will to their own substantial benefit. This is one of many signs of elder financial abuse.
People of all ages can fall victim to undue influence, but the elderly are the most vulnerable. This is especially true for elderly persons with cognitive issues such as dementia or Alzheimer’s. They can take the form of a “long-lost relative,” a caretaker, a “new friend,” an attorney, a financial advisor (such as a stockbroker or investment advisor), or any other individual who “knows them well.”
Using their influence to convince the testator to change their will in their favor is using undue influence for their own benefit.
If you believe your loved one’s will was created with undue influence, you should speak with an estate planning attorney to file a will contest immediately. Undue influence for wills and other financial matters also falls under Illinois criminal law governing elderly financial abuse, and should also be reported to the Illinois Department on Aging.
Chicago’s Trust And Estate Planning Attorney
You want to make sure that your will and estate plan do exactly what you need them to do without any challenges or interference from anyone. The best way to do that is to work with an Illinois estate planning attorney who understands the process and will make sure your estate is probated and distributed as you intended.
James C. Provenza is an estate planning attorney in Illinois with more than 25 years of experience helping clients with their estate planning needs. He can work with you to ensure that your final wishes are carried out as you intended. Call our firm today at (847) 729-3939, or use our online contact form.