The time period immediately following the death of a family member is one that is typically filled with a number of heightened emotions, including grief, despair, and even anger. It can also be a confusing time for those left behind as they try and focus on the practical and legal ramifications of their loved one’s passing. The decedent’s Last Will and Testament must be submitted to the appropriate court for probate as soon after his/her death as possible. One of the first steps in the probate process is the authentication of the Will. What happens, however, if you want to contest the Will? The probate attorneys at Nash, Nash, Bean & Ford, LLP explain how to contest a Will in the State of Illinois and how to decide if doing so is your best option.
What Is Probate?
When an individual dies, the decedent’s estate is normally required to go through probate court. If a Will is located, the Will is submitted, along with a petition to open probate and a certified copy of the decedent’s death record, to the appropriate probate court. The probate process serves several functions, including allowing creditors the opportunity to file claims against the estate and eventually transferring estate assets to beneficiaries and/or heirs. One of the first tasks of the probate court, however, is authenticating the decedent’s Will. If someone believes the Will is not valid, therefore, a Will contest may be initiated. Only an “interested person” may contest a Will though. This typically includes legal heirs of the estate, a beneficiary under the current Will along with beneficiaries from a previous Will, or even creditors of the estate or decedent.
Grounds for a Will Contest
One of the most common misperceptions regarding the ability to contest a Will is the frequently held belief that an heir may challenge a Will based on the fact that he/she is unhappy with the inheritance left to him/her (or lack of inheritance) in the Will. In fact, to contest a Will you must allege, and ultimately prove, grounds on which the Will could be declared invalid, including:
- Lack of Testamentary Capacity – this is a little more complicated than it sounds. To defend a claim of lack of testamentary capacity it must be shown that the Testator knew the nature of his/her acts, knew the extent of his/her property, knew the proposed disposition of his/her property and also knew the natural objects of his/her bounty.
- Fraud – this can cover a wide range of situations from tricking a Testator into signing a document that the Testator did not realize was a Will to inducing a Testator to make gifts in a Will based on fraudulent information.
- Undue Influence – this occurs when someone manipulates a Testator, often by isolating the individual, into executing a Will, or making specific gifts in a Will, that the Testator would not otherwise have signed or made had the influence not been present.
- Improper Execution – for a Will to be valid, certain conditions must be met during the signing of the document, such as the presence of witnesses. If those conditions were not present, the Will could be invalid.
- Revocation – if the Testator executed a subsequent Will, or otherwise revoked the Will submitted to probate, that Will is invalid.
Should You Contest the Will?
Contesting a Will is often a lengthy, and emotionally draining, experience. If you have reason to believe that the Will submitted for probate is not a valid Will, and the outcome of the probate process will directly affect you, it may indeed be in your best interest to initiate a Will contest. Before making a decision, however, you should consult with an experienced probate/estate planning attorney to discuss your options and the likely outcome if you proceed with the Will contest. This is particularly important if the Will includes a “no contest” clause that is intended to discourage challenges to the Will.
Contact Probate/Estate Planning Attorneys
For additional information, please join us for an upcoming FREE seminar. If you have questions or concerns regarding contesting a Will in the State of Illinois, contact the experienced probate attorneys at Nash, Nash, Bean & Ford, LLP by calling 309-944-2188 to schedule your appointment today.