Like many people, you may choose to execute a Last Will and Testament as your primary method for distributing your estate assets after you are gone. You will undoubtedly spend a considerable amount of time deciding which assets you wish to gift to which beneficiaries in your Will. After your death, your estate will need to go through the legal process known as probate. During the probate process, someone could decide to challenge the validity of your Will by filing a Will contest. The estate planning attorneys at Nash, Nash, Bean & Ford, LLP explain what happens if someone does contest your Will and what you can do to limit the likelihood of a Will contest succeeding.
The Probate Process and Initiating a Will Contest
After your death, your estate will be required to go through probate. Your Will, along with a petition to open probate and a certified copy of your death record must be submitted to the appropriate probate court. The probate process serves several functions, including allowing creditors the opportunity to file claims against your estate and eventually transferring estate assets to beneficiaries and/or heirs. One of the first tasks of the probate court, however, is to authenticate the Will submitted for probate. If an “interested person” believes the Will is invalid, they can challenge its validity by filing a Will contest. An “interested person” typically includes a spouse and legal heirs of the estate, a beneficiary under the current Will or under a previous Will, or sometimes creditors of the estate.
Grounds for Contesting Your Will
When someone contests your Will they must allege legal grounds that, if proven, will invalidate your Will. A Will contest is not an opportunity for a beneficiary or heir to complain about the inheritance he/she received (or did not receive) under the terms of the Will. In the State of Illinois, grounds on which a Will may be declared invalid include:
- Lack of Testamentary Capacity – testamentary capacity is required to execute a Will. The law defines testamentary capacity by looking at whether, at the time of execution, you knew:
- the nature of your acts
- the extent of your property
- the proposed disposition of your property
- the natural objects of your bounty
- Fraud – includes numerous situations, such as tricking you into signing a document that you did not realize was a Will or inducing you to make gifts to beneficiaries based on fraudulent information provided by someone.
- Undue Influence – refers to the use of pressure or manipulation on you when you executed the Will that caused you to make gifts you would not otherwise have made without that pressure or manipulation.
- Improper Execution – focuses on the technicalities of execution, such as the requirement that a Will be signed in the presence of witnesses.
- Revocation – if you made another Will after the one submitted to probate, or otherwise legally revoked the Will that was submitted to probate, the Will is invalid.
Preventing a Will Contest
Although there is no sure fire way to prevent someone from challenging you Will, there are a few things you can do to greatly diminish the likelihood of a successful Will contest, such as:
- Work with an estate planning attorney when you create your Will. Not only does this dramatically diminish the likelihood of mistakes in the document, but it also creates an excellent witness to your “testamentary capacity” at the time you signed the Will.
- Have a complete physical performed by your physician around the time you execute your Will.
- Execute your Will in front of uninterested witnesses.
- Include a Letter of Instruction in your estate plan explaining anything unusual in your Will.
- Consider including a “no contest” clause in your Will to discourage challenges.
Contact Estate Planning Lawyers
For additional information, please join us for an upcoming FREE seminar. If you have questions or concerns regarding what happens when someone contests a Will, contact the experienced estate planning attorneys at Nash, Nash, Bean & Ford, LLP by calling 309-944-2188 to schedule your appointment today.