Naperville Estate Planning Attorney Discusses Contesting a Will Due to Lack of Testamentary Capacity

challenge, Naperville business law attorneyAccording to the law, a person cannot enter into a legally binding contract such as a will or trust if they cannot fully understand what they are agreeing to. Many wills have been contested by family members who had concerns about their deceased loved one’s testamentary capacity, or cognitive wellness. In my experience as an estate planning lawyer, I have helped clients who worried that their loved one’s will did not accurately reflect their loved one’s final wishes. Lack of testamentary capacity is one of the most common reasons wills are contested, so it is important to understand exactly what this term means.

Determining When an Individual Lacks Testamentary Capacity

The Illinois Probate Act of 1975 requires individuals executing a will to be at least 18 years old and to be of “sound mind and memory.” However, if you have ever known someone with age-related cognitive decline, Alzheimer’s disease, dementia, or other health issues that affect mental acuity, you know that it is not always easy to know exactly how “sound” their mind and memory is. An Illinois appeals court offered more specific criteria for determining an individual’s testamentary capacity in the 1977 case Beyers v. Billingsley. Illinois law requires anyone completing a will to meet the following standards:

  • The testator (person drafting the will) must be able to recognize their loved ones such as children and grandchildren;
  • The testator must understand the monetary value and character of the property addressed in their will; and
  • The testator must be capable of developing a plan for distribution of their property.

Testamentary capacity is generally assumed unless evidence to the contrary can be presented to the court.

Wills Written Under Duress or Confusion Can Be Invalidated

Unfortunately, elderly people or those with cognitive issues are often taken advantage of. A friend, family member, or caretaker may attempt to convince a testator into changing his or her will so that they gain additional financial benefit. This happens so often, in fact, that in 2014, the governor of Illinois signed a law into effect that makes certain financial transfers between individuals and their caretakers automatically void. The law presumes that a gift or property transfer of more than $20,000 from an individual to their non-relative caregiver is fraudulent. However, the transfer instrument, often a will, must be formally challenged in court in order to have this property transfer cancelled. Wills can also be invalidated if it can be proven that the testator was under undue influence, did not understand what they were signing, or that the will is fraudulent in some way.

Contact a Naperville, Illinois Estate Planning Attorney

If you are worried that your loved one’s will does not accurately reflect his or her final wishes, contact an experienced DuPage County estate planning lawyer at the Gierach Law Firm to get the answers you need. Call at 630-756-1160 to schedule a confidential consultation today.


Illinois Probate Act of 1975

Illinois Civil Jury Instructions

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