Contesting the Validity of a Will in Illinois

Dead Man's Act, Illinois estate planning lawyer, attorney, will, probateWhile talking about life after you are gone and deciding how to distribute your property can be difficult, estate planning is the responsible thing to do. There are many avenues to consider, but the most basic step to take is executing a will. Unfortunately, having a legally executed will does not always ensure a smooth probate process. Illinois grants interested parties the right to contest a will, even in cases where the will contains a no-contest clause (assuming that the contest is done in good faith).

A will contest can be valid and can certainly be done in good faith. The Illinois Probate Act sets forth the parameters of a legal contest:

  1. First, note that the interested party must file a petition contesting validity within six months after the will has been admitted to probate;
  2. Second, it is important to know that the petitioner has a right to demand a jury trial to determine whether or not the will is valid.

This contest right extends only to interested parties though, such as an heir, legatee, representative, grantee or assignee of an entitled person. This means that some random person off the street cannot walk in and contest the validity of an unknown person’s last will and testament.

One potential ground for contesting a will is the deceased’s mental state at the time they executed the will. Illinois law requires that a testator be of sound mind and memory in order to validly bequest their real and personal property. If the petitioner can prove that the testator was not of sound mind, the contest will likely succeed. The testator must also be at least 18 years of age and must sign the will in the presence of two credible witnesses. If these requirements are not met, that might also be a ground for contest.

Understanding The Dead-Man’s Act

To protect the interests of the deceased, Illinois enforces a procedural rule called the Dead-Man’s Act, which provides that if you are contesting the validity of a will, you are not allowed to testify about a conversation that you had with the deceased person, except in limited circumstances, such as:

  • If the representative of the deceased opens the door by presenting evidence about the conversation;
  • If the testimony relates to establishing the heirship of a decedent; or
  • If the testimony is only being offered to establish a foundation for other evidence, such as books or other documents.

 Will contests can be contentious and procedurally confusing, which is why it is important to have a skilled estate planning attorney by your side. Our attorneys have more than 30 years of experience handling probate cases and can help you contest, defend or prepare a will. We can assist those in the Naperville area.