Schedule a Consultation

Can Living Wills be Contested? | How to Contest a Living Will in Illinois

Updated on
October 28, 2019
Article written by
Attorney Kevin O'Flaherty

In this article, we answer the question: “Can Living Wills be Contested?”, including “What is a Living Will?” and “How to Contest a Living Will”.

What is a Living Will?

A living will is a document containing instructions for the drafter’s end-of-life medical care if he or she becomes unable to communicate their decisions themselves. A living will only applies if a person has a terminal condition, meaning death is imminent. The purpose of the living will is to inform the individual’s health care provider whether or not the person wants death-delaying procedures as a result of a terminal condition in which the person is unable to state their wishes to the medical professionals.

Under Illinois law, a properly signed and witnessed living will takes effect once a person has been diagnosed with a terminal condition or an irreversible coma. The person’s attending physician must also verify this information (terminal diagnosis) in writing as part of the medical record.

Usually, a person will create a living will early on in life before something happens to their health that would take them by surprise. The main reason people create living wills is to save family members and loved ones from the burden of having to make decisions on medical care in a terminal situation. For more on this, check out our article, Illinois Living Wills Explained.

How to Contest a Living Will

To answer the initial question of this article: yes, living wills can be contested. Contesting a living will is a formal objection against the validity of the living will. This means that, if a person wishes to contest a will, it must be argued that the will does not meet the state law requirements, making it invalid.

This also means that the substance of the living will is not what is contested, but instead the formalities of execution, meaning you can’t contest a living will solely because you disagree with the creator’s wishes stated in therein.  To be successful in contesting a living will, a you must gather evidence to support that the living will did not meet state requirements when it was written.

   In Illinois law, the legal requirements for a valid living will include:

  • The person was of sound mind and age of majority at the time he or she created the living will ( For more on how to prove lack of mental capacity, check out our article: Lack of Testamentary Capacity in Illinois Will Contests.);
  • The person signed the living will, declaring his or her own wishes;
  • That the living will was witnessed by two people over the age of 18;
  • That at the time that death-delaying procedures are to be terminated, the person is not pregnant (or at a point where it could develop into a live birth with continued application of death-delaying procedures);
  • The attending physician was notified of the individual’s living will.

The process of contesting a living will is very similar to the process of contesting a standard will. For much more detail on this, check out our article, Illinois Will Contests Explained.

Can Living Wills be Contested? | How to Contest a Living Will in Illinois
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

What to Expect From a Consultation

The purpose of a free consultation is to determine whether our firm is a good fit for your legal needs. Although we often discuss expected results and costs, our attorneys do not give legal advice unless and until you choose to retain us. Although most consultations are complimentary, some may carry a charge depending on the type of matter and meeting location.


9 am - 5 pm M - F
After 5 pm by Appt
11 am - 3pm Sat by Appt
11 am - 2 pm Sun by Appt

Open Hours

Mon - Fri

9am - 7pm

By Appointment

Mon - Fri

after 7pm

Saturday

11 am - 3pm

Sunday

11 am - 2 pm


9 am - 5 pm M - F
After 5 pm by Appt
11 am - 3pm Sat by Appt
11 am - 2 pm Sun by Appt

Open Hours

Mon - Fri

9am - 7pm

Saturday

11 am - 3pm

Sunday

11 am - 2 pm


9 am - 5 pm M - F
After 5 pm by Appt
11 am - 3pm Sat by Appt
11 am - 2 pm Sun by Appt

Contact us for a Free Consultation

Who We are

We are your community law firm. Our Iowa & Illinois Attorneys are committed to providing exceptional client service in a cost-effective manner in the areas of Family Law, Probate, Estate Planning, Civil Litigation, Guardianship, Criminal Defense, Corporate & Contract Law, Bankruptcy and Real Estate.
Disclaimer: Our articles and comment responses do not constitute legal advice and are not intended to create an attorney-client relationship.

Please contact us to schedule a consultation specific to your legal situation.