When Do You Have Grounds to Contest a Will in Illinois?

As most people know, a last will and testament is a legal document that outlines a person’s wishes concerning the disposition of their assets and the care of dependents after their passing. If properly executed, it can be a powerful way to ensure that their family is taken care of after their death. One significant drawback of wills for the testator — the person who makes the will — is that it must go through a court process called probate, where the will is officially proved. 

In probate, certain interested parties who may feel they were wrongfully left out of the will, or who are concerned that the will does not truly reflect the wishes of their loved one, may contest a will, but only for very specific reasons set out in Illinois law. For these individuals, the ability to contest a will can be a legal tool to right a wrong, while the beneficiaries of the will must defend themselves against such claims. An experienced Naperville, IL probate litigation attorney can advise you on whether there are sufficient grounds for contesting a will in Illinois. 

Who Can Contest a Will in Illinois?

You must be an interested party in order to contest a will. In Illinois, the Probate Act — the primary law governing will contests in the state — defines an interested person as someone who has a financial interest or property right that may be affected by the will. This could be an heir, creditor, or someone who was a beneficiary under a prior will. Any of these people can contest a will, but they must do so within six months from the time the will is admitted to probate. 

What Are the Grounds for Contesting a Will?

While you may be disappointed with the bequest you receive (or did not receive) in a will, you cannot contest a will simply because you are unhappy with the testator’s decisions. The grounds for invalidating are all intended to help determine whether the will actually represents the wishes of the testator. Some of the valid legal grounds for contesting a will include:

Undue Influence 

A will can be contested on the grounds that there was undue influence on the testator when they made the will, meaning that a third party pressured them into putting bequests in the will that did not reflect their wishes. Such undue influence must be directly related to the contents of the will in order for it to be enough to get the well invalidated. 

Testamentary Incapacity

When preparing a will, a testator must be able to understand what they are doing and what is included in their estate. In other words, they must be of sound mind. If the testator was not of sound mind when executing the will, they lacked the legally required testamentary capacity to do so, and the will could be invalidated for that reason. 

Fraud or Forgery

When the testator made certain bequests in the will on the basis of a third party’s fraud or forgery, the will can be invalidated. A claim of fraud alleges, for example, that the testator was tricked into signing a will when they were told they were signing something else, or that someone made changes to the will after it was signed.  

Revocation

You can also contest a will on the grounds that the testator revoked it. In this case, you will allege that the testator destroyed the will before they died, or executed another valid will later that they intended to be their true will and testament. You can also allege that the will was revoked when the testator properly executed a document revoking the will. 

Ignorance

When you allege ignorance as grounds for invalidating a will, you are essentially claiming that the testator did not know what the contents of the will were, either because they signed the will without the opportunity to read it or did not have the ability to know the contents of the will. 

Can a Will be Partially Invalidated?

In some cases, it is possible to partially invalidate a will, meaning to remove a portion of the will and keep the rest, so long as the remaining portion of the will can be enforced according to what the testator would have wanted. 

What if the Will Has a No-Contest Clause?

If a will has a no-contest clause, can it still be contested and eventually invalidated? A no-contest clause does not prohibit a person from contesting a will in court. However, it can discourage will contests. A no-contest clause provides that any person who contests a will and is unsuccessful will forfeit their inheritance or receive only a small share. Illinois courts enforce no contest clauses but there is a high bar to proving that the clause is legally valid and properly drafted. 

What is the Procedure for Contesting a Will?

If you are a valid interested party and therefore have the legal right to contest the will, you can file a petition with the court to challenge the acceptance of a will to probate. You can also challenge a probate court’s decision not to accept a will into probate. When someone contests a will, they have the right to demand a jury trial to determine the validity of the will.  

What Happens if the Will Contest is Successful? 

If you successfully challenge a will, it will be invalidated. The court will look at a variety of factors to determine how to distribute the decedent’s estate, such as any previously valid will. The court may also decide to distribute the estate according to the rules of intestate succession, which set out how an estate gets distributed if there is no will in place. 

Call a Naperville, IL Probate Litigation Attorney 

If your loved one left you out of their will, or if you believe that their will does not reflect their true intentions, speak to the experienced Naperville, IL probate litigation attorney at Gierach Law Firm. Attorney Denise Gierach has over 30 years of experience both drafting wills and representing clients in will contests. Call the law firm at 630-756-1160 to speak to attorney Gierach about these concerns.