Your elderly mother recently passed away at a Chicago nursing home, and their will was not what you expected. Although you received a nominal amount of money, everything she promised to you (even recently) has been granted to your sister, who has been visiting your mother a lot in the last year. You’ve never gotten along with your sister, and you suspect that she influenced your mom to change her will. Is there anything you can do?
Reasons for Contesting a Will in Illinois
In Illinois, you must have the legal right to contest a will. To contest a will, you need to have what is called “standing,” and by law, only interested parties have standing. Generally, “interested parties” are those who are named as beneficiaries under a will, those who would have inherited from the deceased if they had died intestate, or those who may have a claim to the deceased’s assets, such as creditors.
In addition to standing, you must have grounds for contesting the will. The primary grounds for mounting a will challenge in Illinois are highlighted below.
Lack of Testamentary Capacity
Anyone over the age of 18 has the legal capacity to make a will in this state. To contest capacity, the testator must have lacked it at the time of the will’s drafting.
Illinois courts consider several factors when determining the testator’s capacity, such as whether the testator knew they were making a will, the extent and nature of their property, and whether the distribution of their property corresponds with their expressed intentions.
Undue influence occurs when someone is able to maintain control over the testator in order to change their will. Under Illinois law, undue influence occurs when someone takes away a testator’s free will through their actions, which causes them to execute a will with provisions the testator would not have otherwise included. Examples include a caretaker threatening to harm or abandon an elderly person if the latter’s will is not changed in their favor.
Fraud can occur in a variety of situations. By lying to the testator, an individual may commit fraud in order to get them to make or change a bequest in their favor. They may lead them to believe that a document they are signing is a will they have already drafted but is actually a new and revised version.
A forgery is an act of misrepresenting the will as having been signed by the testator when it was not. Generally, in order to establish forgery, you must prove that the witnesses were unreliable, that the testator could not have been present at the time and place when the will was allegedly signed, or that the signature is not the testator’s. If your mother’s signature looks suspiciously like your sister’s, you may be able to contest the will on the grounds of forgery.
Process of Contesting a Will
Since you believe that your mother may have been unduly influenced by your sister, you may file a contest to challenge the admission of her will to probate. You have up to six months after the admission to contest it, and parties to the proceeding must include the representatives of her estate and all of her heirs and legatees.
You and any other party to the proceeding may demand a jury trial to determine whether or not your mother’s will is legally valid. Both proponents and contestants will have the opportunity to present evidence supporting their claims.
If you succeed in getting a will set aside, then the previous valid will replace it. If none is available, Illinois intestacy laws apply. The death of a parent without a spouse usually means that everything will be divided equally between the surviving children and the descendants of any deceased children (for example, grandchildren).
Will contests can be a legally complex form of probate litigation. An experienced Chicago estate planning attorney can verify that you have standing and possible grounds to challenge a will, and then protect your interests during any subsequent legal proceedings. During this stressful time in your life, Attorney Dionna Reynolds can help you fight to ensure that the distribution of your mother’s estate is what she actually would have wanted.
Compassionate Litigation Support for Will Contests
Contesting a will can be emotionally as well as legally challenging. The stress of litigation is on top of the grief of losing a loved one. At the Law Office of Dionna Reynolds, LLC, we can help you mount a will contest when it’s clear that the document does not reflect your loved one’s actual desires and guide you through the legal process that can restore your rightful inheritance. For more information or to schedule a confidential consultation with Attorney Reynolds, call 708-981-3344 or contact our office online.