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Illinois Will Contests Explained | Illinois Probate Litigation

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Article written by Attorney Kevin O'Flaherty
Updated on
October 28, 2019

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.

What is 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.  

What is the Statute of Limitations for a Will Contest in Illinois?

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:

  1. A subsequent will may be admitted to probate after the six month deadline for will contests has passed.  This is not technically a will contest, although the subsequent will will likely invalidate the prior will. 
  2. A claim for intentional interference with expectancy of inheritance may be filed after the six month time period.  This is a civil suit that is distinct from a will contest.  

Who has Standing to Contest a Will?

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.

Illinois Equitable Adoption Explained

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. 

Who is Entitled to Notice of 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.  

Who Pays Attorney Fees to Defend Against Will Contests?

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. 

In What Situations Can a Will Be Contested?

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.

  • Undue Influence:  Undue influence occurs when someone wrongfully overpowers the will of the testator, such that the will or trust was not the result of the testator’s free choice.  This can occur when someone who has a fiduciary duty to the testator influences the creation of a trust or will that substantially benefits the fiduciary. Learn more about undue influence, here: Illinois Will Contests: Undue Influence Explained.
  • Lack of Testamentary Capacity: A will or trust is invalid if the testator lacked the requisite mental capacity to execute the will or trust at the time that the will or trust was executed.  Learn more about lack of testamentary capacity here: Illinois Will Contests: Lack of Testamentary Capacity Explained.
  • Fraud, Forgery, Compulsion, or Other Improper Conduct: This is a catch-all category that includes tricking the testator into executing the will or trust by leading him or to believe that it is a different document, altering the will or trust after execution, forging the testator’s signature, and other similar improprieties.  
  • Revocation:  In a will contest based on revocation, the party contesting the will must prove (1) the testator’s intent to revoke the will or trust, and (2) that a specific action taken by the testator that shows his or her intent to revoke the will or trust, such as tearing up the will.  
  • Failure to Comply with the Required Formalities of Execution: If the testator failed to comply with the formal requirements for executing the will or trust, the will can be challenged through a petition for formal proof of will, or a will contest, or both.  The requirements for formal execution of the will are discussed in much more detail in our article, Illinois Formal Proof of Will Hearings Explained.

What is the Process for an Illinois Will Contest?

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. 

The Doctrine of Election as a Defense to Illinois Will Contests 

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. 

Do No-Contest Clauses in Illinois Wills Prevent Will Contests?

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 Claims

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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Illinois Will Contests Explained | Illinois Probate Litigation

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