Who can make a will in Illinois?

Appealing the Admission of a Will to Probate in Illinois

Video by Attorney Kevin O'Flaherty
Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
December 6, 2019

In this article, we explain appealing the admission of a will to probate in Illinois. We address the following:

  • Who can make a will in Illinois?
  • Who can contest a will in Illinois?
  • What are valid grounds for contesting a will in Illinois?
  • Invalid grounds for contesting a will in Illinois
  • Appealing the admission of a will in probate in Illinois
  • Successful will petitions in Illinois

Who can make a will in Illinois?

Article 4 of the Probate Act states Illinois requirements for valid wills. For a will in Illinois to be legally recognized, the testator, or creator of the will, must:

  • Be at least 18 years of age
  • Be of sound mind
  • Have the mental capacity to understand the consequences of their actions
  • Sign the will in the presence of at least two witnesses

Both witnesses must immediately sign the original will after the testator. If the testator is unable to sign on their own, someone else may sign on their behalf.

Who can contest a will in Illinois?

Only an active will can be contested. Wills are activated upon the testator’s death, when they are filed with the court to begin the process to settle an estate (probate).

If a person with an interest in the estate, such as an heir, beneficiary, or creditor of the decedent, believes the authenticity of a will is questionable, they have the right to contest the will in question.

What are valid grounds for contesting a will in Illinois?

A person interested in the estate of the decedent can contest a will under the following grounds in Illinois:

  • Testator did not understand the nature and value of their property
  • Testator was under undue influence when they made the will
  • Will was created by means of fraud, forgery, or force

Invalid grounds for contesting a will in Illinois

A will cannot be contested simply because interested parties are unsatisfied with its terms. Verbal confirmation of a will’s terms is not considered valid grounds to contest either. In other words, an heir cannot challenge a will because they believe they deserve more of the decedent’s assets or because the decedent told them what they would receive from their estate.

Will Contests vs. Appealing the admission of a will in probate in Illinois

An interested person has six months from the date a will was filed to contest. A petition must be filed in the same court in which the will was filed.

Illinois counties have personalized petition formats. But in most cases, a petitioner will need the decedent’s name, date and place of death, the assigned court case number for the probate proceeding, and the grounds on which they are contesting the will.

Both the executor of an estate and the petitioner of the associated will have the right to request a trial by jury.

If a will is successfully contested by the petitioner, one of two scenarios will play out. If the decedent had a valid will that was created before the contested will, it will be admitted to probate. If no other valid will is available, Illinois intestate laws apply.

While a will contest takes place in the circuit court, an appeal asks the appellate court to overturn the order of the circuit court. If you are unsucessful in your will contest, you may file an appeal to the appellate court to seek to have the circuit court's order overturned as you would any other final civil order. You can learn more about the appeals process by checking out our article: The Illinois Appeals Process Explained.

Can You Appeal the Admission of a Will to Probate in Illinois?

The general rule is that while an order deciding a will contest is appealable, an order admitting the will to probate (which occurs prior to a will contest) is not appealable. This is because only final orders are appealable, and the order admitting the will to probate is not a final order in the probate case. However, according to Illinois Supreme Court Rule 304(b) any judgment that finally determines the right or status of any party. Sometimes an order admitting a will to probate will determine the final rights or statuses of certain parties, such as heirs at law or beneficiairies of previous wills who will not inherit under the will in question.  In these cases, those parties may appeal the order admitting the will to probate.  

The problem is that even though these parties have the right to appeal the order admitting the will to probate, the appeal will be considered moot if a will contest has occurred. This means that you can either appeal the order admitting the will to probate OR file a will contest with the probate court and then appeal the final order determining the outcome of the will contest should you lose the will contest. The latter option is preferable because the party contesting the will gets two bites at the apple: first with the circuit court and then with the appellate court.

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Who can contest a will in Illinois?

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