Preventing a Will Contest

will contest, contested will, Naperville Estate Planning LawyerA long-time Chicago Cubs baseball player died in January, leaving behind a sports legacy—and a contested will.

Three months before his death, Ernie Banks executed a new will that bequeathed his entire estate to his caregiver. The new will does not include provisions for Banks’ estranged wife or his adult children, who are now challenging the will in probate court. They allege that the caretaker manipulated Banks into leaving her everything.

A relatively new provision in Illinois probate law presumes that a will benefiting a caretaker has resulted from undue influence. The caretaker has the burden of proving that the bequest is valid. However, because this rule only applies to wills signed after January 1, 2015, it does not apply in this case. Thus, the contesting parties must rely on other provisions of Illinois probate law to challenge Banks’ will.

Here, the estranged wife will likely argue that Banks was not of sound mind when he executed the will. The mental state of the deceased is among the most common grounds for contesting a will. Illinois law requires that the testator be of sound mind and memory when executing a will, otherwise his bequests are not valid.

Four Tips for Preventing a Probate Challenge

Will contests are common among estranged spouses and in families with multiple marriages and children from prior marriages. But having a complicated family should not automatically condemn your last will and testament to a court challenge. Here are four tips for ensuring that your last wishes are carried out:

Communicate

The best way to avoid a will contest is to make your plans known to your family and friends. If they know what to expect then there will be no “unwelcome” surprises when your will is entered for probate. If you change your mind and sign a new will (like in the Banks case), make sure your family and friends are aware of the changes.

Execute it Properly

It is also important to ensure that your will has been executed properly. The will has a better chance of standing up to a court challenge if it complies with statutory requirements.

Consider No Contest

Consider including a “no contest” clause in your will. If a beneficiary challenges the provisions of your will and loses, you can bar him from inheriting anything from you. However, keep in mind that Illinois courts strictly construe such provisions. And a no-contest clause will not prevent a would-be heir who is not included in your will from mounting a challenge.

Hire an Attorney

Our skilled Naperville estate planning attorneys can help you execute a valid will and ensure that your estate plan is carried out. Contact us today for a consultation. We can assist those in the Naperville area.