When you create a will to distribute your estate, you do it so that your wishes are carried out after your death. When someone contests the will, this can create issues in your family and prevent your will from being followed. A Chicago estate planning attorney can help you make a strong and enforceable will.
Who Can Contest a Will?
In Illinois, any interested person can petition to contest a will. An interested person includes:
- A beneficiary named in the will
- An heir who would inherit under succession law or a prior will
- A creditor
- The representative of the estate, including the executor or administrator
What Are the Grounds for a Will Contest?
To file a will contest, there must be valid grounds for the contest. An heir or creditor can’t file a contest simply because they dislike how assets were distributed. Legally valid reasons for will contests include:
- Undue Influence: This claim suggests that the creator of the will, or the testator, was under the undue influence of a third party. This means that the individual was using manipulation or coercion to exert their will over the testator, resulting in the testator altering the will in the other person’s favor or disfavoring another beneficiary.
- Fraud or Forgery: Fraud claims include forged wills and the claim that the testator believed that they were signing another document. There may also be a claim that the testator was defrauded into giving assets to a fake entity or charity.
- Lack of Testamentary Capacity: This claim suggests that the testator did not have the mental capacity to comprehend the meaning of signing a will, the entirety of their assets, and their familial relationships.
- Technical Flaws: A valid will in Illinois requires a signature from the testator and the signature of two reliable witnesses who were present for the signing. Another technical flaw that may result in a valid claim includes distributing property that the estate does not own.
When an interested party brings forward a valid claim, the court will review the evidence presented. If the court decides that the will is invalid, then the will is voided. If there is a prior version of the will that exists, the court will defer to that will. If there are no prior or valid versions of the will, then the court will distribute the estate according to state succession laws.
How You Can Protect Your Will From Contests in Chicago
There are several things you can do while creating or maintaining your will to prevent the chances of contests or successful contests to the will. These include:
- Plan Early: When an interested party makes a claim for lack of testamentary capacity, it is often because the will was created when the testator was nearing the end of their life or in poor health. By beginning your estate planning early, claims on these grounds are less likely to succeed. Additionally, this will allow you to modify your estate plan throughout your life, further limiting the success of will contests.
- No-Contest Clause: A no-contest clause includes provisions for heirs or beneficiaries who contest the will. It does not prevent them from filing to contest, but it can limit or eliminate their share of the estate if the claim is unsuccessful. If the heir is not certain that they will win the will contest, they will be less likely to file it.
- Update Often: By frequently updating your will and reviewing it after major life changes, there will be a clear line of prior wills that the court can review to determine if a new version is influenced by a third party. Updating your will often also means that if a will is found to be invalid, the prior will that the court uses may not be very different from your intended wishes.
- Communicate: Informing your family and heirs of your intentions may prevent some interested parties from making well-meaning contests.
- Trust: Creating a trust allows you to distribute your assets like in a will, but it avoids probate court. It is much harder to contest a trust.
- Work With an Attorney: One of the most effective ways to prevent will contests is to ensure that the will is legally valid, straightforward, and clear in its wishes. An attorney can help you draft a legally valid will that has reasonable measures to prevent will contests.
FAQs
Q: On What Grounds Can a Will Be Contested in Illinois?
A: Any interested party, including an heir, beneficiary, executor, or creditor, can contest the will. They can do so based on the legal grounds of:
- Undue influence
- Forged signature or will
- Defrauding of the creator of the will
- Lack of testamentary capacity
- A will that was improperly signed and witnessed
- The existence of a more recent version of the will
An interested party cannot contest a will because they are unhappy with the outcome.
Q: What Is the Success Rate of Contesting a Will in Illinois?
A: It’s fairly uncommon that a will contest is successful, especially when the will was made with the assistance of an experienced attorney. Unfortunately, even when they are unsuccessful, will contests can take time, energy, and money from the interested party contesting the will and the parties who believe that the will is valid. Probate is already a long process, and a will contest will lengthen it considerably.
Q: Will Illinois Enforce a No-Contest Clause?
A: Yes, no-contest clauses are enforceable in Illinois. A no-contest clause, however, does not prohibit contests. Instead, it may prevent an heir from claiming their inheritance if the claim is unsuccessful, which can limit the likelihood of an interested party petitioning for a contest. Illinois courts also require that no-contest clauses are detailed and straightforward. If there is any uncertainty in the no-contest clause, the clause will be interpreted in the contester’s favor.
Q: How Hard Is It to Contest a Will in Illinois?
A: It can be hard to contest a will, and it is also costly and time-consuming. When an interested party files to contest a will, they must have a legally valid reason to do so. As the filing party, they also have the burden of proof. Depending on the grounds for the will contest, this may include proving that an individual was not mentally sound when they created or altered their will or that they were influenced or defrauded by another party.
Contact Stange Law Firm
If you are worried that certain parties may contest your will, contact Stange Law Firm. We can review your situation and determine the options available to protect your estate.
