How to Prove that a Will is Invalid

How to Prove that a Will is Invalid in Illinois | How to Challenge an Invalid Will

Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
Updated on
October 2, 2019

In this article, we explain how to prove that a will is invalid in Illinois and how to challenge an invalid will.  We answer the question, “what are the grounds for invalidating a will in Illinois?” and explain how to challenge an invalid will in Illinois through a formal proof of will hearing or a will contest. 

What Are the Grounds for Invalidating a Will in Illinois?

There are several bases on which a will may be held to be invalid in Illinois, including:

  • The will was not properly executed: In order for a will to be valid in Illinois, it must be executed while the creator (“the testator”) is of sound mind and over the age of 18 in the presence of two witnesses, also of sound mind and over the age of 18, who must contemporaneously sign the will.  More: What is Required for a Will to Be Valid in Illinois? 
  • The creator of the will was not of sound mind at the time that the will was executed: The creator of the will must have had “testamentary capacity at the time of execution.  This means that she understood who constituted her immediate family, what property she owned, and what she was doing in disposing of her property while creating the will.  More: Lack of Testamentary Capacity in Illinois Will Contests
  • The will was executed as a result of fraud: The definition of fraud is very broad.  It basically covers any sort of trick that caused the testator to execute the will, including causing the testator to believe she was signing something different from what she actually signed or making false statements to the testator in order to induce her to dispose of her property in a certain manner.  
  • The will was executed as a result of duress: Duress includes physical, financial, or other threats that were made to the testator in order to induce her to execute the will. 
  • The will was executed as a result of undue influence: Undue influence occurs when someone in a position of trust takes advantage of her relationship with a feeble-minded testator in order to cause her to execute the will.  More: Undue Influence in Illinois Will Contests Explained.
  • The will was revoked before the testator passed away: A will can be revoked by properly executing a new will or a will revocation.  More: How to Revoke a Will in Illinois.

How to Challenge an Invalid Will in Illinois

There are two ways to challenge the validity of a will in Illinois:

  • Formal Proof of Will Hearing: A formal proof of will hearing is held for the limited purpose of requiring the executor to prove that the will was properly executed in the presence of two competent witnesses who at the time of execution believed the testator to be of sound mind.  Generally, the executor will call the witnesses to the will to court to testify to these facts.  A will contest must be filed within 42 days of the will being admitted to probate.  More: Illinois Formal Proof of Will Hearings Explained.
  • Will Contest: A will contest allows the petitioner to challenge the validity of the will on any of the grounds discussed above, including improper execution.  The deadline to file a will contest is 6 months from the date that the will was admitted to probate.  This means that you can challenge the will via a formal proof of will hearing first, and, if this is unsuccessful, file a will contest.  More: Illinois Will Contests Explained. 

Additional Financial Considerations
from Financial Experts

From Financial Experts

For many years, financial institutions have been creating a disservice to clients and the industry as a whole for years.
View More Professional Considerations

Presented By O'Flaherty Law

O'Flaherty Law is happy to meet with you by phone or at our offices in Chicago, Downers Grove, Elmhurst, Naperville, St. Charles, Lake in the Hills and Tinley Park, Illinois.

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.

Leave a Comment With Your Questions

Read more about

Will Contests & Will Disputes

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 free consultation for legal advice specific to your situation.

Here are some articles that may interest you

Contact us for a free consultation

Who We Are
We are your community law firm. Our 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.
Schedule a free consultation

Some of Our Accomplishments

Best Child Support Lawyers in Chicago
DuPage County Probate Attorney
Kevin P. O'Flaherty
Rated by Super Lawyers

loading ...
Naperville attorney
DuPage County Probate Attorney
Business Articles & Podcasts

Subscribe to our mailing list

* indicates required