Contesting a Will in Illinois
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Any interested person may challenge a will or trust by showing that the will or trust is invalid, or that the person who authorized the will or trust didn't know what they were doing when they signed off on it. Common legal grounds for contesting a will or trust include: undue influence, incompetence, fraud, and ambiguous language.
Incompetence means the person who created the will or trust was not of sound mind, or did not understand the meaning of the document. Specifically, the person writing the will or trust must have understood what property he or she owned, who the property was being left to, and that they were creating a binding legal document. This is the most common way to successfully challenge a will. The key is that you must prove that the person was incompetent when the will was made. That isn't difficult if it was made in the last days of their life while undergoing chemotherapy. It's much harder if the will/trust was prepared years ago. Even if the person was incompetent then, you still have to prove they were incompetent at the moment they signed. If they have two witnesses to the document that say otherwise you will have a hard time succeeding unless their medical records say otherwise.
Undue influence is mental coercion that prevents a person from exercising his or her own free will and produces a will or trust that reflects the desires of the party exercising the undue influence. For example, a son threatens to put his mom in a nursing home unless she leaves a bigger share of the estate to him.
Fraud means that the person made the will or trust based on lies or deception. For example, a daughter falsely tells her parent that her brother is engaging in criminal activity, prompting the parent to leave the brother's share of the estate to the daughter. This is another example that is really hard to prove.
Oftentimes, people contact us because they think that they have unfairly been left out of their mother or father's will. However, being a child only gives you grounds to a parent's assets if there is no will. Unless the will wasn't validly prepared, there usually isn't a ground to challenge it in this type of situation.
For example, a father of 3 children leaves all of his assets to his 2 youngest children in his will and nothing to his oldest child because she had distanced herself from the family. As long as the father's will was validly prepared, the oldest sibling has no grounds to challenge the will.
The cost of hiring an attorney to challenge the validity of a will or trust depends on the size of the estate and the chances of success. A lawyer will likely take a case on a contingency basis if the estate is large or it can be shown that the will or trust is not valid. This means the lawyer will only get paid if your challenge is successful and that they receive a certain percentage of what you recover. If your case isn't taken on a contingency basis you will pay by the hour, win or lose.
If you have any questions about challenging a will or trust and your unique situation or want a referral to a lawyer for your unique situation, please do not hesitate to contact us. All inquiries are free and confidential. There are time limits for challenging a will or trust so if you think you might have a case it is important to act as soon as possible or your rights could be lost forever.