When someone dies, one of the first things that should be done following the death is to locate the decedent’s Last Will and Testament, if one was executed prior to death. Not only does the law require anyone in possession of a Will to come forward and submit the document to the proper court, but doing so makes the probate of the decedent’s estate much simpler in most cases because the decedent’s Will provides a “roadmap” that is intended to be used to distribute estate assets owned by the decedent at the time of death. What happens though if there is a question regarding the validity of the Will? If you are a family member and/or beneficiary of the Will submitted to the court you likely have the ability to challenge the Will by initiating a Will contest. If you plan on contesting a Will using lack of testamentary capacity you should be certain you understand what that means and what you will need to prove before moving forward. While consulting with an experienced Illinois estate planning attorney is always recommended, it may help in the meantime to gain a better understanding of what the law means by “lack of testamentary capacity.”
Contrary to what the general public is often led to believe, a Will contest cannot be filed by just anyone nor can it be filed simply because someone is unhappy with his/her inheritance – or lack thereof. To file a Will contest you must be an “interested party” which usually means a beneficiary or an heir. Furthermore, to contest a Will the contestant must allege grounds on which the Will could be declared invalid.
The legal requirements for executing a Last Will and Testament in the State of Illinois are relatively simple. Essentially, any adult over the age of 18 who is of “sound mind and memory” may execute a Will. Not surprisingly, the failure to be of “sound mind and memory” is precisely what many contestants use to challenge the validity of a Will. In legal terms, this is referred to as “lack of testamentary capacity.”
Testamentary capacity, however, is presumed in the State of Illinois, meaning the estate does not have to prove anything. Instead, the contestant must rebut the presumption by proving the Testator lacked the necessary capacity at the time the Will was executed. Furthermore, the threshold for capacity is relatively low when it comes to executing a Will. A Testator might not be found competent to enter into a contract, or even conduct business affairs, but could have testamentary capacity. In Illinois, the test for testamentary capacity asks the following three questions:
- Did the testator have the ability to know the nature and extent of his property (or “bounty”)?
- Did the testator have the ability to know the natural objects of his bounty?
- Did the testator have the ability to make a disposition of his property in accordance with some sort of plan formed in his mind?
In other words, did the Testator know what property he/she owned? Did he/she know the approximate value of the property and was he/she mentally capable enough to formulate some type of plan to dispose of the property? If the answer to all three questions is “yes” the Testator did not lack testamentary capacity.
If you have additional questions or concerns about testamentary capacity, or contesting a Last Will and Testament in general, contact the experienced Illinois estate planning attorneys at Nash, Nash, Bean & Ford, LLP by calling 309-944-2188 to schedule your appointment today.
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