On What Grounds Can a Will Be Contested?

 Posted on January 24,2020 in Estate Planning

One of the most critical reasons it is important to work with a lawyer when drafting a will is that a will can be formally challenged, or contested, if it does not meet certain criteria. If a will is successfully challenged, then some or all of the directions for property distribution contained within the will are rejected. Instead, the testator’s property is distributed according to state law. An individual cannot contest a will simply because he or she considers it to be unfair or is unhappy with his or her share of the inheritance. Read on to learn about the grounds or reasons that a person may contest a will in Illinois.

Lack of Testamentary Capacity

“Testamentary capacity” refers to person’s cognitive abilities. A testator must be of sound mind in order to legally approve of the terms contained within his or her will. If a person lacked testamentary capacity when he or she agreed to the will, the will may be considered invalid. If a person suffers from Alzheimer’s disease, dementia, or another cognitive health issue and wishes to draft an estate plan, he or she should seek legal guidance from an experienced lawyer so that steps can be taken to prevent his or her will from being contested in the future.

Undue Influence

In order for a will to be valid, the testator must have freely and voluntarily agreed to the terms contained within the will. If the testator was coerced, tricked, or manipulated into agreeing to the provisions in his or her will, the will is not valid. Undue influence is often a concern when a particular person has virtually unlimited access to an aging or ill testator.

For example, one section of the Illinois Probate Act deals with suspicious property transfers to non-related caregivers. If an individual leaves more than $20,000 to a non-related caregiver, such as a home health aid, this transfer is presumed to be void. If the will or other property transfer instrument is challenged in court, the caretaker is obligated to prove to the court that the transfer was not the result of fraud or undue influence.

Fraud and Forgery

If a will is created through fraud, the will is not valid. One example of fraud occurs when a beneficiary lies to the testator in order to get the testator to increase his or her inheritance. Another example of fraud occurs when a beneficiary forges the testator’s signature or changes the contents in the will without the testator’s consent. It can be very difficult to prove a will was affected by fraud once the testator has passed away. Contesting a will based on fraud will require help from a skilled attorney.

Contact a Wheaton Will Contest Attorney

If you have reason to believe that your loved one’s will is invalid or you wish to draft your will, trust, or other estate plan, the skilled DuPage County estate planning lawyers at Stock, Carlson & Asso. LLC can help. Call our office at 630-665-2500 and schedule a confidential consultation to discuss your needs today.

Sources:

http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=098-1093

https://www.thebalance.com/what-are-the-grounds-for-contesting-a-will-3505208