Are You Concerned About the Validity of Your Loved One’s Will?

validity, Naperville estate planning attorneyThe purpose of a Last Will and Testament, trust, or other estate planning tools should always be to ensure that a loved one’s final wishes and inheritance directions are followed. However, sometimes there are questions about the validity or enforceability of a person’s will. Elderly individuals or those with illnesses that affect cognition can be taken advantage of by people who wish to gain financial benefit by manipulating them. Other individuals can be tricked or forced into signing a will that they would normally have approved. In situations like this, a surviving family member of the deceased may choose to contest the will in probate court. If it can be proven that a person’s will was not entered into voluntarily, the will can be invalidated.

Understanding Testamentary Capacity

A person cannot enter into any legally binding contract, including a will, without the cognitive ability to comprehend the terms of the agreement in question. In regard to estate planning documents, this ability to understand is known as “testamentary capacity.” For a will to be valid, the testator, or person signing the will, must understand the property under consideration, the property’s value, the appropriateness of each heir’s inheritance, and the significance of creating a document with legal implications.

Testamentary capacity often comes into question when the testator is elderly or suffers from dementia or any other condition that affects mental abilities. Of course, not every person who suffers from dementia, Alzheimer’s Disease, or other cognitive impairment lacks the ability to legally draft and execute a will. It is the responsibility of the party who is challenging the legitimacy of the will to show that the testator did not have testamentary capacity. The validity of a person’s will may come down to witness testimony, medical evidence, or a finding of incapacity.

Inheritance Left to Non-Relative Caregivers

Under Illinois law, there are some estate planning scenarios which are automatically presumed to be unenforceable. Sadly, elder financial abuse is quite common in the United States. Caregivers like in-home health aides or companions can manipulate a person weakened by age or illness into making estate planning decisions they would not otherwise make. Because of this sad reality, when a testator leaves property valued at over $20,000 to a non-relative caregiver, this property transfer is assumed to be fraudulent. These so-called “presumptively void transfers” are not automatically nullified. A loved one must challenge the will or trust in a civil action in order to cancel the property transfer.

Contact a DuPage County, Illinois Estate Planning Attorney

If you are worried about the legitimacy of your loved one’s will or other estate planning document, contact an experienced Naperville wills and trusts lawyer for help. Call the Gierach Law Firm at 630-756-1160 today.


Illinois Public Act 098-1093

Probate Act of 1975

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