Naperville Estate Planning Lawyer Talks About When to Contest a Will

contest, Naperville estate planning lawyerThe purpose of a last will and testament is to make arrangements for how a person’s property and debt will be distributed after they pass away. The person creating a will is referred to as the testator. Wills can also contain information about guardianship of minor children, the testator’s final arrangements, inheritance, and more.

In my practice as an estate planning and administration attorney, I have seen many examples of a family member or friend realizing upon reading their love one’s will that something is not right. It can be hard to know when it is appropriate to contest—or appeal the validity of—a will, but there are some guidelines concerned individuals should follow when deciding what action to take.

Invalidating a Will

Put shortly, you should contest a will if you believe that the will does not accurately reflect the testator’s final wishes. Contested wills are subject to probate, the process in which a will is vetted by the court. If a judge finds the will to be invalid, he or she will throw it out. Depending on the situation, a previously executed, valid will may be enforced or the testator’s property will be divided according to the Illinois statutes regarding intestate succession.

Not just anyone can contest a will; only “interested persons” may do so. These people include children, heirs, beneficiaries, spouses, creditors, or any others having a property right or claim against the estate in question. A person who is not named in the will and is not a close relative or spouse of the testator will probably not be able to file a contest unless he or she was named in a previous version of the will.

Reasons to Challenge a Will

There are specific circumstances which can make a will invalid. A person cannot contest a will simply because he or she does not like the directives within it. In order for a will to be invalidated, the courts must prove one of several circumstances occurred. If the testator did not have testamentary capacity when he or she created the will, it may be invalidated. Testamentary capacity refers to the testator’s ability to understand and consent to the directions written in the will. Testamentary capacity is often questioned for persons with dementia, severe mental illness, health issues, or other disabilities.

A will can also be challenged if the plaintiff can prove that the will was acquired by fraud, forgery, or undue influence. Basically, if the testator was coerced into creating the will, it can be invalidated. Other reasons for contesting a will include insufficient witnesses, improper execution, the discovery of a more recent will, and missing state-required provisions.

An Estate Planning Attorney Can Help You Contest a Will

If you think that a loved one’s will is fraudulent or otherwise does not reflect the deceased person’s actual wishes, contact an experienced Naperville estate planning attorney. Call 630-756-1160 for a confidential consultation at The Gierach Law Firm today.

 

Sources:

Illinois Pattern Jury Instructions – Civil Court

Illinois Probate Act of 1975