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IL estate planning lawyerWhen someone is planning their estate in Illinois, several factors must be present in order for a will to be considered valid in a probate court. One important factor is the testamentary capacity of the person executing the will (also known as the “testator”).

Illinois law presumes a person who is writing a will possesses testamentary capacity. This means that if someone wants to prove a will is invalid due to lack of testamentary capacity, they have to proactively demonstrate that the testator was not capable of understanding or writing the will during the time in which the will was written.

Here, we’ll look at the definition of testamentary capacity, and several factors that may contribute towards a lack of testamentary capacity.

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IL probate lawyerIn our last post, we introduced and discussed the concept of undue influence in creating a will. It can be difficult to prove undue influence – even the Supreme Court of the United States has said that what constitutes undue influence depends on the individual circumstances of each case.

When someone believes their loved one may have been under undue influence when creating a will, one way to show the will is invalid is to prove that there was a formal legal relationship between the testator and the other party, called a fiduciary duty.

This can be a little confusing, so we will explore further.

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IL probate lawyerUndue influence is the most common justification in Illinois when someone wants to contest the validity of a will. But what is undue influence? And if you suspect someone is trying to wield undue influence over your loved one during the creation of their will, what can you do about it? We will explore the concept of undue influence in a short series of blog posts, explaining what undue influence is and how it is treated under Illinois law.

Undue influence is when the person for whom the will is written (the testator) has their wishes wrongfully manipulated and overpowered by someone else. This obscures the true wishes of the testator and can cause tension and conflict in executing the will after the testator is deceased.

Family members who are concerned their loved one is being subject to undue influence may have worries triggered by unusual behavior, such as sudden estrangement or confusion on the part of the testator. They may witness a decline in the mental capacity of the testator, or notice they are accompanied by a companion who seems overly zealous in “helping” the testator or seems to be influencing their decision making.

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IL estate lawyerFor people of any age, estate planning allows them to make decisions about what will happen in the future. In many cases, the focus of an estate plan will be on what happens after a person’s death, and this will be covered in part by their last will and testament, which is commonly referred to as a will. However, multiple types of estate planning documents, including a living will, can also be used to address how issues such as medical care will be handled throughout the remainder of a person’s life. By understanding the differences between wills and living wills, a person and their loved ones can ensure that their wishes will be followed correctly.

Wills vs. Living Wills

A last will and testament is used to make decisions about how a person’s final affairs will be handled after their death, including who will inherit their property and assets. It will name a person known as an executor who will complete the probate process and ensure that the deceased person’s instructions will be followed when distributing their assets to their family members or other beneficiaries. A will can also be used to nominate a person as the guardian of the deceased person’s minor children, and it can specify the deceased person’s wishes for their funeral and burial or cremation.

The term “living will” would seem to indicate that it is a document that covers similar issues as a last will and testament prior to a person’s death. However, a living will can only address certain types of specific issues, and it will only apply in certain situations. Basically, a living will can make decisions about the medical care a person receives prior to their death, ensuring that their wishes will be followed if they cannot make these wishes known. To make decisions about medical treatment in other situations, other estate planning tools such as powers of attorney may be used.

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IL estate lawyerAlthough pop star Britney Spears was a household name in the 90s and early 2000s, the singer faded into the background in later years. However, a new legal battle has returned Spears’ name to news headlines. Concerns over a court-appointed conservatorship have led many to question exactly when an adult should be subject to guardianship. Some believe that Spears’ father’s control over her finances is a despicable abuse of power. Others see it as a necessary means of assisting a woman with a history of mental instability and substance abuse issues.

Understanding the Purpose of Guardianships and Conservatorships

Estate planning terms vary from state to state. In Illinois, the term “conservatorship” is often used synonymously with guardianship of a person’s estate. A conservator or “guardian of the estate” is in charge of managing the finances of another individual. A “guardian of the person” manages the non-financial concerns in the person’s life, such as housing and medical decisions. Both conservatorships and guardianships give authority of a person’s life to another party. Conservatorships and guardianships are typically used to protect the interests of minor children or those with dementia or other conditions that reduce the individual’s ability to make sound decisions.

Why Was Britney Spears Subject to a Conservatorship?

For over 13 years, Britney Spears has been subject to a court-appointed conservatorship which gives control of her affairs to her father Jamie Spears. The conservatorship was established in 2008 amid concerns over the singer’s mental health problems and drug and alcohol use. Spears has attended several rehabilitation facilities for substance abuse and has also been placed in the hospital under psychiatric holds on two occasions. However, many proponents of the #FreeBritney movement say that conservatorship is no longer necessary. Spears has requested that her father be removed as conservator and for a financial institution to take control of her estate. In February of this year, a judge denied this request and ruled that both Jamie Spears and the financial institution would oversee Britney’s financial affairs. Britney will attend a hearing on June 23 to address the ongoing legal battle.

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Illinois State Bar Association DuPage County Bar Association Northwest Suburban Bar Association American Inns of Court DuPage Association of Woman Lawyers National Association of Woman Business Owners Illinois Association Criminal Defense Lawyers DuPage County Criminal Defense Lawyers Association
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