In this article, we discuss what evidence can be used in a will contest and answer the following questions:
If someone were to construct a bar graph with “legal instrument” plotted on the horizontal axis and “percentage subject to litigation” on the vertical axis, wills and trusts would most certainly have one of the largest, if not the largest, bar on the chart. We’ve all seen or heard the story of one family member receiving everything in a will while another gets nothing: attorneys enter stage left. Suffice to say, will contests are quite common. But how does one know if they have a valid challenge to a will? The first step would be to determine if the challenging party is actually an Interested Party. An interested party in a will contest is someone who has actually been harmed as the result of a will or a modification of a will. Unfortunately, simply being left out of a will doesn’t necessarily make someone an interested party (unless two versions of a will exist with one splitting the estate between beneficiaries and another giving everything to one beneficiary). A will challenge hinges on the ability of the person contesting the will to prove that a will is invalid due to reasons such as fraud, forgery, compulsion, etc. The Will Challenge Petition must be completed with care and with thoughts to future arguments during the court hearing.
Prima Facie refers to establishing a cause of action or defense that is sufficiently established to justify a ruling in his or her favor, provided the evidence is not successfully rebutted by the other party. Basically, under Illinois Law, the proponent of the will has to show through discovery and evidence that the will is valid, and unless the contestant has evidence that clearly shows the will was generated and executed unlawfully the proponent’s case will be made. The proponent can use the following evidence to support their case and prima facie for admission of the will:
The contestant only has the right to bring forth evidence that would clearly prove one of the following:
When the Will Challenge Petition is filed the probate process for a will comes to a halt. The will contest must go through the appropriate litigation process before the probate process can continue. If the will contest fails then the probate process will continue and the decedent’s estate will be distributed according to the original will that was contested. If the will contest succeeds then the probate process must start over and the decedent’s estate will be distributed according to a prior valid will. If no prior valid will exists then the decedent’s estate will be distributed according to Illinois intestate laws.
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