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Discovery and Evidence In A Will Contest and Proving the Decedent’s Intent in Illinois

Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
June 26, 2020

In this article, we discuss what evidence can be used in a will contest and answer the following questions:

  • What happens when someone contests a will?
  • What different types of evidence can the proponent of a will use to establish prima facie?
  • What evidence can the contestant of a will bring forward?
  • What happens when a will contest fails or succeeds?

What Happens When Someone Contests a Will?

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.

What Different Types of Evidence Can the Proponent of a Will Use To Establish Prima Facie?

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:

  • Testimony of appropriate witnesses;
  • An affidavit (also known as a self-proving affidavit) that was signed by the testator and two witnesses adding more proof the will is genuine;
  • The attestation clause, which is a clause at the end of the will describing the legal requirements the document must satisfy, indicates that the requirements have been met, and is signed by at least one witness; and
  • “Any other evidence competent to establish a will,” such as the testimony of any witness to the will or any medical records proving the testator’s sound mind at the time of the creation of the will.

What Evidence Can the Contestant of a Will Bring Forward?

The contestant only has the right to bring forth evidence that would clearly prove one of the following:

  • The will was generated under undue influence. Here the contestant alleges the testator was forced, pressured, or coerced into including provisions into the will he or she wouldn’t have otherwise included or signing a will he or she wouldn’t have otherwise signed.
  • The testator lacked the mental capacity to generate and execute a will;
  • Fraud of forgery was involved in the creation of the will, signing of the will, or added later without knowledge of the testator;
  • The will was actually revoked before the testator’s death; or
  • The testator was ignorant of the contents of the will prior to signing the will.

What Happens When a Will Contest Fails or Succeeds?

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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