What is a Living Will?

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

Video by Attorney Kevin O'Flaherty
Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
October 28, 2019

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.

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How to Contest a Living Will

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