In this article, we explain Illinois formal proof of will hearings in probate, also known as will prove-ups, including the difference between formal proof of will and will contests, what happens at a formal proof of will hearing, who has standing to file a petition for formal proof of will, and the deadline to file a formal proof of will petition in Illinois.
In a formal proof of will hearing, interested parties have the ability to challenge the admission of the will into probate by requesting that the executor present proof that the will was properly executed.
Only heirs and legatees may successfully file a petition for a formal proof of will hearing. “Heirs” are the individuals who would be entitled to inherit the property of the decedent under the law in the absence of a will. “Legatees” are individuals named in the decedent’s will as beneficiaries of the estate.
A petition for a formal proof of will hearing must be filed within 42 days of the date that the will was admitted to probate. If an interested party fails to file a petition for formal proof of will within this deadline, he or she may still have the right to file a will contest, which we will explain below.
If an interested party files a petition for formal proof of will, the person seeking to have the will admitted to probate must produce the witnesses to the will to testify as to the propriety of the execution of the will. The purpose of the formal proof of will hearing is for the court to determine whether there is proof of fraud, forgery, compulsion or other improper conduct in the execution of the will.
Most wills contain an “attestation clause” before the witness’ signatures that states:
The formal proof of will hearing is usually limited to an investigation as to whether these three statements, also known as “will formalities,” are true. The only evidence that is typically presented at the hearing is the testimony of the witnesses. However, other evidence of fraud, forgery, or compulsion in executing the will may be offered. The only evidence that may be offered regarding the testator’s mental capacity is the testimony of the witnesses to the will.
If the will contains an attestation clause, there is a presumption that the will was properly executed. Therefore, unless the witnesses testify that one of the statements in the attestation clause was not actually true, the attestation clause will provide sufficient evidence that the will was properly executed. If the witness does not remember or provides vague or contradictory testimony, then the presumption of validity created by the attestation clause will stand.
If a witness to the will resides outside of the county at which the will prove-up is being held or is unable to attend the hearing, the proponent of the will may present the witness’ deposition testimony rather than have the witness appear in court. The proponent of the will must petition the court for permission to depose the witness and provide notice to all interested parties. The affidavit of the witness and the attestation clause itself, without the in-court testimony or deposition testimony of the witness, are not sufficient to prove-up the will.
The formal proof of will hearing is different from a will contest. In a will contest, unlike a formal proof of will hearing, the will may be challenged for a variety reasons using a wide range of evidence. Illinois is called a “double contest” state because parties wishing to challenge a will can get two bites at the apple by pursuing both a formal proof of will hearing and a will contest.
If the proponent of the will is unsuccessful at the formal proof of will hearing, the court will deny the admission of the will to probate and the executor will be removed. The executor will no longer be able to control estate assets or use estate assets to defend the will.