Will Contests

Any interested person ("person" includes people and organizations) may contest the admission or denial of a will to probate. Any such contest must be commenced within six months after the entry of an order admitting or denying a will to probate. The executor of the estate has a duty to defend a proceeding to contest the will.

The term "interested person" refers to a person or organization who, in the event the will is invalidated, stands to better his position in terms of the share of the estate that he or she would receive. For instance, assume John Doe has two children, Sara and James. John leaves a will whereby he leaves all of his property to his daughter Sara, and provides in his will that his son, James is to receive nothing under his will. James has standing to contest the will of his father, since if the will is found to be invalid, he will increase the inheritance he will receive from his father's estate. Under the contested will, James receives nothing, but if the will is invalidated, and if the invalidated will was the only will John created, then following a successful contest, John's estate would pass under the laws of intestacy, with Sara and James splitting the estate assets equally. Similarly, assume Betty Brown prepares a will in 2001 leaving all her property to the Anti-Cruelty Society. Subsequently, Betty does a new will in 2006 that revokes her prior will and leaves all her property to her housekeeper, Anne Andrews. The Anti-Cruelty Society has standing to challenge Betty's latest will, since if the 2006 is found to be invalid, the disposition of Betty's property will revert to the terms of the 2001 will.

There are several grounds for contesting a person's will. Generally, the will contest focuses on the testamentary capacity of the decedent at the time the will was signed. There are two very common grounds for such a challenge:

1. The decedent lacked the mental capacity to make a will at the time of signing the will. Adequate mental capacity to make a will in Illinois requires that the decedent:
   1. know who his immediate family is, and,
   2. have a general understanding of the nature and extent of his assets, and.
   3. be able to formulate and communicate a plan to dispose of those assets at death.

   Expounding on each of the above:

   1. "Know who his or her immediate family is" The decedent does not need to leave anything to his immediate family; he or she just needs to know, or have the capacity to know, who they are. If a decedent is delusional and does not believe he had children, obviously a will leaving those children nothing should not be valid.
   2. "Have a general understanding of the nature and extent of his or her assets". The decedent does not need to know the specifics of his or her estate (i.e. "I have 63,452 in Bank of America and 765 shares of AT&T stock"). Rather, he or she must know, in a more general way, that they own property at the time they make their will.
   3. "Be able to formulate and communicate a plan to dispose of those assets at death." This is the most easily satisfied, since if the decedent communicated his wishes to his lawyer, the test has been met. Proof of this requirement is also a reason that a prudent lawyer will not accept instructions on how a person wishes their will prepared, from anyone but the person making the will (i.e. It is imprudent for a lawyer to draft a will for A based upon instructions from B as to what A wants in his will. Rather, a prudent lawyer will insist on personally meeting A and hearing what A wants in his will, directly from A).
2. Perhaps the most common ground for challenging a will involves an allegation that the decedent was under the undue influence of some person in making the will. In simple terms, the will contestant must prove that the decedent was so influenced by another person in making the will, that the will did not reflect the decedent's wishes, but more the influencer's wishes. The undue influence must be directly related to the procurement and execution of the will. For example, if an adult daughter occasionally tells her invalid mother that she should leave her everything because she cares for her, that probably does not rise to the level of undue influence. On the other hand, if the adult daughter repeatedly threatens her mother that she will abandon her entirely unless she leaves her everything, then that coercive threat probably does constitute undue influence.

Both mental capacity and undue influence challenges to a will are very fact intensive. The dates of events, who was present, who said what to whom, all are very important in deciding these cases. Because of this aspect of these cases, extensive discovery and investigation must be done by counsel for the will challenger, which makes these cases very expensive to bring.

Other grounds for will contests are seen much less frequently than the two set forth above. They include fraud in the execution of the will (i.e. the decedent was told he was signing a petition for a political candidate, when in fact he was signing his will), failure to follow the formalities required under Illinois law to execute a valid will (i.e. Illinois law requires two witnesses to witness a will and that both witnesses must sign in front of each other and in front of the testator. If it can be shown that the witnesses did not sign in front of each other, that would negate the will) and mistake (i.e. the decedent's attorney prepared a will that did not accurately reflect the decedent's wishes due to a mistake of drafting by the attorney).