Protesting a Will in Illinois

by Elizabeth Rayne
A will may be contested for a number of reasons.

A will may be contested for a number of reasons.

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Contesting a will can be an important part of ensuring that a decedent's wishes are properly carried out. In Illinois, these challenges can be raised by a person with standing, on the grounds that the will either was not executed properly or is the product of undue influence or fraud. Certain time limitations and notice requirements apply, and the person contesting the will bears the burden of ultimately proving the invalidity of the document.

Standing

In order to contest or invalidate a will in court, you must show that you have "standing" to do so. In order to demonstrate standing, you must provide evidence that you have an actual and monetary interest in the will in question. For example, if you are one of the people named in the will, or if you will inherit from the decedent if the will is found invalid, then you likely have standing to contest the will.

Grounds for Contesting a Will

A will may be found invalid if you can demonstrate that the document does not comply with Illinois law, or does not accurately reflect the decedent's actual interests because of fraud or similar grounds. State law provides that a will is valid only if the testator was at least 18 years old at the time the will was drafted, and the will was signed by the testator before at least two witnesses. The will may be contested if it is shown that the testator was not of sound mind when drafting the will, meaning that he did not have the mental capacity to understand issues such as the value of his property or his relation to his beneficiaries. Further, if evidence of fraud, undue influence, forgery or revocation is presented, the will may be declared invalid.

No Contest Clauses

As in most states, where a "no contest" clause is included in the will, a party with standing may still contest the document in Illinois, so long as the party acts in good faith. To demonstrate good faith, you should have a reason for contesting the will, apart from an interest in inheriting from the decedent, such as testamentary capacity or fraud.

Timing and Procedure

In Illinois, an interested party has up to six months from the will's admission to probate to contest the will in court. The petitioner must give notice of intent to contest the will to the decedent's personal representative, heirs and legatees. The court will schedule a hearing to hear evidence of the grounds to contest the will. The person bringing the will contest has the burden to prove the will's invalidity, while the representative is responsible for defending the will. The probate court may determine that the will is entirely unenforceable, or that only a portion of the will is invalid.