In this article we will explain the procedure for will contests in Illinois probate cases. We will discuss the difference between will contests and formal proof of will hearings, the causes of action, defenses, and burdens of proof for Illinois will contests, the Illinois statute of limitations for will contests, as well as several procedural issues regarding will contests such as who has standing to contest a will, who is entitled to notice of a will contest, the executor’s duty to defend the will, and who is responsible for paying attorney fees in a will contest.
If an interested party believes that a will that has been admitted to probate is the result of mental incompetence, undue influence, or fraud, he or she may file a petition to contest the validity of the will in the probate court in which the will has been admitted. Evidence will be presented by both sides and a trial will be held to determine whether the claims of the interested party who filed the petition cause the will to be invalid.
A petition to contest the validity of the will is a different type of petition from a petition for formal proof of will, which requires the party seeking to have the will admitted to probate to establish that the will was properly executed before witnesses. In Illinois, individuals seeking to invalidate a will can first file a petition for formal proof of will, and, if unsuccessful, later file a will contest petition.
The deadline in Illinois to file a petition to contest the validity of a will is six months from the date that the will was admitted to probate. There are two exceptions to this rule:
Any “interested person,” as defined by the Illinois Probate Act, may file a petition to contest a will. The Illinois Probate Act defines an “interested person” as an heir, legatee, creditor, person entitled to a spouse’s or child’s award and the representative.” An “heir” is anyone who would be entitled to inherit in the absence of a will. A “legatee” is a beneficiary named in a well. “The representative is the executor or administrator responsible for administering the probate estate.
Parties who are neither statutory heirs or legatees may be able to gain standing through the doctrine of “equitable adoption.” If an individual can show by clear and convincing evidence that the testator had the intent to adopt him or her and acted consistently with that intent by forming a close and enduring familiar relationship with the individual, that individual may argue that he or she had been “equitably adopted” by the testator, and may gain standing to enter into an Illinois will contest.
The petition to contest a will must be mailed or delivered to all heirs, legatees, fiduciaries, or any other person whose rights would be affected by the will contest. It must also be mailed or delivered to the executor or administrator and to the attorney of record for the executor or administrator.
The executor or administrator has a duty to defend the validity of the will against will contests unless the executor or administrator reasonably believes that the contested will is invalid. The executor or administrator of the estate can recover his or her attorney fees in defending the will from the estate if the executor or administrator’s actions were for the benefit of the estate. This means that the executor or administrator will not be able to recover attorney fees for unnecessary litigation. The executor or administrator will also not be able to recover attorney fees for any appeals if the probate court finds the will to be invalid.
A the validity of a will can be contested on a variety of bases, known as “causes of action.” These include undue influence, lack of testamentary capacity, fraud, forgery, compulsion, or other improper conduct, revocation, and noncompliance with formalities of execution.
Will contests and other issues in probate litigation follow the typical Illinois Rules of Civil Procedure, meaning that they proceed just like any other Illinois civil litigation. Click here for our articles on the Illinois civil litigation process: Illinois Civil Litigation.
The Illinois Dead Man’s Act bars testimony of interested parties relating to conversations with the deceased individual or events at which the deceased individual was present, if the conversation or event would serve to benefit the witness’ own interests in the case. You can learn more about the Illinois Dead-Man’s Act, by reading our article, The Illinois Dead-Man’s Act Explained.
A heir or legatee who voluntarily accepts a bequest under a will is barred from subsequently challenging the will. The doctrine of election only applies where the heir or legatee accepts the bequest with full knowledge of the facts, and where the acceptance was did not occur as a result of fraud or mistake. Even if an heir or legatee accepts the bequest with full knowledge, he or she is not barred from challenging parts of the will that are contrary to public policy.
No-contest clauses in Illinois wills provide that if a beneficiary of the will challenges the will, he or she will forfeit any inheritance he or she would otherwise receive under the will. These clauses do not bar the beneficiary from challenging the will. They simply provide negative ramifications if the beneficiary is unsuccessful. Illinois law is unclear as to the enforceability of no-contest clauses.
Tortious interference with an expectancy of inheritance and fraudulent inducement are two causes of action that are often brought in conjunction with will contests. These causes action involve claims against a defendant for wrongfully depriving the plaintiff of an inheritance through fraud or some other action that would itself be a tort. Although these claims often require proof of the same set of facts as a will contest, the remedy is different because these claims often seek repayment of damages from the defendant, rather than a different apportionment of the estate. When the remedy sought is from non-probatable assets, tortious interference with an expectancy and fraudulent inducement claims can be brought after the 6 month deadline for a will contest.
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