Many people create a will to outline how their assets and estates are managed and distributed after their death. A will names an executor to manage your will and lists your heirs. Will contests can come from creditors, heirs, family members, or other interested parties. If a will contest is successful, your wishes won’t be adhered to. To protect your interests, it’s important to understand how contests happen and what you can do to mitigate a successful will contest.

Will Contest Grounds

Wills can only be contested on valid grounds. An heir can’t contest a will because they are upset at the amount of assets they received. Valid reasons for will contests include:

  • Lack of Testamentary Capacity: Contesting a will on these grounds means that the person is claiming that you, the creator of the will, lacked the essential coherence to understand your assets, estate, and the legal meaning of signing your will.
  • Undue Influence: A claim of undue influence suggests that you were under the influence of another person, who exerted their will over you to favor themselves.
  • Fraud: A fraud contest may suggest that the will itself or your signature is forged. It may also be claimed that someone defrauded you during the creation of the will, such as by providing a fake charity to put money into.
  • Improperly Signed: To be considered valid in Illinois, you must sign the will in the presence of two reliable witnesses, who must also sign it.

If a will contest successfully invalidates a will, a prior version of a will may be used instead. If you have no prior will, then Illinois intestate succession laws will apply.

What You Can Do to Avoid Will Contests

There is no way to prevent someone from making a will contest. There are several things you can do to make the process of contesting more difficult and successful claims unlikely. Some steps include:

  • Ensure Your Will Is Valid: This is a basic but essential safeguard against will contests. Ensure that your will follows Illinois laws for valid wills, including being signed by two reliable witnesses. An attorney can help ensure that your will fits the state’s will requirements. You can also add a self-proving affidavit to your will to state your mental capacity when signing a will and thereby prove its authenticity.
  • Create a No-Contest Clause: This clause doesn’t prevent someone from contesting your will. However, if an interested party does contest your will, this clause limits their inheritance or prevents them from inheriting anything. This clause is most effective at preventing someone who is already an heir from contesting your will if they might lose.
  • Make a Trust: Forming a trust allows you to retitle assets, name beneficiaries, and substantiate the guidelines in your will. It also allows assets to avoid probate and gives your assets and your beneficiaries more privacy. There are several benefits to an estate plan.
  • Work With an Attorney: If you have concerns that interested parties will try to contest your will, an attorney can help you craft a valid, enforceable, and well-protected will. An estate planning attorney understands how possible contests might occur and how to avoid them.
  • Discuss Your Wishes With Your Family: In some cases, a will contest is made because a family member genuinely believes that it was not what you actually intended. Although you don’t have to disclose all the information in your estate plan, you can talk with heirs and family members about some of your plans. This can help them be less surprised if they don’t receive the assets or inheritance that they were anticipating.
  • Update Your Will Frequently: By updating your will, a court can see the progression of changes, which can often make it harder to contest a will. Additionally, if a will is successfully contested, the prior will that the court will use won’t be too different from your final will. It’s important to review your will every few years to ensure that it reflects your wishes and changes in life.
  • Get Proof of Mental Capacity: You can get written statements from multiple healthcare providers and physicians when they determine your mental capacity. This can make it more difficult for a lack of testamentary capacity claim to succeed. The earlier in life you create your will, the less likely that your mental capacity can be disputed.

FAQs

Q: Can a Will in Illinois Be Contested?

A: Yes, a will can be contested on certain grounds by those who have a direct interest in the estate. This means that interested parties will gain inheritance if the current will is found invalid. Grounds for will contests include:

  • Lack of testamentary capacity
  • Fraud
  • Forgery
  • Revocation
  • Undue influence
  • Partial invalidity
  • Ignorance of the will’s contents

Q: What Is the Statute of Limitations on Contesting a Will in Illinois?

A: Once a will is admitted to probate, or is denied probate administration, an interested party has 6 months from that date to contest its validity. Interested parties include anyone who has financial, property, or fiduciary interest in the will and its contents. If a petition isn’t filed within 6 months, the will cannot be contested.

Q: Can a Child Contest a Will If Excluded in Illinois?

A: Yes, a child can contest a will if they are excluded. In Illinois, anyone with a financial or property interest in the estate can contest a will on valid grounds. A prior will may name the child as an heir, or the estate may fall under intestate succession laws. Both of these cases benefit the child, meaning that they have an interest in contesting the will.

Q: How Do You Write a Will So That It Cannot Be Contested?

A: There is no way to prevent a will contest, but there are several steps you can take to limit them and their likelihood of success. This includes:

  • Include a no-contest clause in your will.
  • Ensure that your will is valid.
  • Review your will with an attorney.
  • Create your will early in life.
  • Consistently review and update your will.
  • Create a trust.
  • Communicate your plans to your family.

Protect Your Estate and Will

An estate planning attorney can help you protect your will against contests and avoid common legal pitfalls and mistakes. Contact Stange Law Firm today.