In this article, our Champaign will contest attorneys discuss who has standing to contest a well as well as the process of contention and the statute of limitations behind filing 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. 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. 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 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.

 In this article, our Champaign will contest attorney examine undue influence in will contests and give you the information you need to understand what it is and how they are used in will contests. “Undue influence” is one of many bases for arguing that a will is invalid, other causes of action include lack of testamentary capacity, fraud, revocation, and noncompliance with formalities of execution.

“Undue influence” occurs when a person executing a will or trust (“a testator”) has his or her own will overpowered by another’s improper or wrongful constraint or persuasion, which causes the person executing the will or trust to act in a way he or she would not have acted in the absence of the undue influence.  

‍The undue influence must have occurred at the time that the will was drafted, and must have tended to deprive the testator of the ability to freely make decisions.  The mental capacity of the testator is an important consideration in undue influence cases.  In cases where the testator was in a weak or disabled mental state, less evidence is required to prove undue influence than when the testator has full command of his or her faculties.

In this article, our Champaign will contest lawyers discuss lack of testamentary capacity as used in will contests as a cause of action. Lack of testamentary capacity is one of several bases for arguing that a will or trust is invalid, including undue influence, fraud, revocation, and noncompliance with formalities of execution. In order to invalidate an Illinois will or trust based on lack of testamentary capacity, the person challenging the will must establish that at the time the will or trust was executed, the testator did not have the mental capacity to:

1. Know and remember his or her children and other immediate family (referred to by the term of art “natural objects of his or her bounty”);
2. Understand the property he or she owns; and
3. Plan for the disposition of his or her property.

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