If You Plan to Contest the Will, It is Best to Refuse the Bequest

By Denice A. Gierach
September 2010

If a relative of yours dies and leaves you something in their will, but you think that person did not have the legal capacity to make a will in the first place—that you do not think that the deceased knew who their family and friends were and what he or she had in general in assets and that he or she knew that the document that was being signed was their will—then don’t accept the bequest in that will, if you are planning to contest it. If that will was declared by the court as not being valid, you might be included in another will at a larger share or you may be the sole heir of the deceased who has no prior will. Perhaps, the deceased told you that he or she was leaving a larger share to you. For any of these reasons, you may determine that you will contest the will.

Of course, we are not promoting that people contest their relative’s wills, but there are times where a caretaker may be listed in the last will of the deceased, at a time when the relative knows that the deceased did not know who they were, what year it was, or where they were. In that circumstance, it may be appropriate to file a will contest.

If you decide that you wish to file a will contest, it is important that you not accept a bequest made in the will that you are contesting. If you decide to accept such bequest and then fight for your additional share, the court may determine that you elected to take the bequest under the will and your case will be dismissed. This is known in legal parlance as the doctrine of “election” in which the beneficiary cannot simultaneously accept benefits conferred by a will while setting up claims contrary to the document itself. For instance, a decedent left her estate to her surviving child and left only a nominal amount to the children of another deceased child. Those grandchildren accepted their bequest and then filed suit to challenge the validity of the will. The will contest was dismissed, due to the election of the grandchildren in accepting the gift.

In another case, the surviving spouse of the decedent had the right to stay in the family residence as long as she wished. As she had a prenuptial agreement, this was her only benefit. She filed a will contest, alleging that her husband did not have the legal capacity to make the will and that the prenuptial agreement was not valid due to the lack of disclosure. The surviving spouse stayed in the residence during the pendency of the will contest. As a result, the court dismissed her lawsuit, stating that she elected to take the benefits under the will.

The amount of the bequest, even if it is personal property, is not relevant. If you accept the bequest, you have elected to take under the will and will be precluded from maintaining your will contest lawsuit, even though a prior will provided you with a significant legacy. Although no Illinois courts have applied this doctrine to trusts, there is every indication that the courts would do so.

The bottom line is if you intend to file a will contest, refuse the bequest.

Denice Gierach is a lawyer and owner of The Gierach Law Firm in Naperville. She is a certified public accountant and has a master’s degree in management.