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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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DuPage County contested will attorneyIt can be traumatic when the loss of a loved one is coupled with shock and surprise over a will that transfers the estate’s assets in a way that appears inconsistent with the intentions of the deceased testator. If you are dealing with such a scenario in the wake of the loss of your parent, spouse, child, or another close relative, you may have the option to formally contest the validity of the will in question. In doing so, you should work closely with an experienced Illinois wills and trusts attorney.

 A Will Must Comply With Applicable State Laws to be Valid

Wills and trusts are serious business. As such, a will must comply with all formalities imposed by state law in order to be regarded as valid. For example, Illinois law requires that a will must be signed by the person whose estate it concerns, who is known as the “testator”. In addition, the testator’s signing of the will must occur in the presence and hearing of two valid witnesses. In most cases, in order to be a valid witness of a will, a person must not be a beneficiary of the will. If you have reason to believe that the will was not created in accordance with these requirements, you may have grounds to contest it.

The Drafting and Execution of a Will Must Be Free from Undue Influence and Fraud

In addition to signature and witness requirements imposed by Illinois state law, the drafting and signing of a will must be free from undue influence and fraud. Undue influence exists when a testator is subjected to extreme pressure or severe duress to the extent that free will is suppressed. When mental or physical capacity diminishes with age, a testator may be particularly vulnerable to undue influence exerted by individuals lacking scruples.

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DuPage County estate planning lawyer

You do not have to be materialistic to become sentimental about a loved one’s possessions or to feel slighted by the contents of his or her will or estate plan. In fact, even the most down-to-earth people may feel a sense of injustice when a will or trust appears to have been altered, coerced, or otherwise manipulated. The good news is that if you have the right information and the right resources, you may be able to contest the will and put things right again.

Grounds for Contesting a Will

While any “interested party” may contest a will (siblings, children, spouses, etc.), the contesting party must have valid grounds for doing so. In other words, you cannot simply challenge a will because you feel like it was unfair, insulting, or mean-spirited. You can, however, contest a will if you believe one of the following is true:

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Lombard estate planning lawyerIn the days and weeks after the death of a loved one, you are likely to remain focused on getting back to some semblance of normalcy in your life, especially if you were very close to the decedent. Just as things start to settle back down emotionally, new concerns can arise when your loved one’s will is presented for probate. When the provisions in the will are finally made known, you may be surprised to learn that your loved one has made some unexpected decisions. Such surprises may lead to you to think about filing a will contest, but there are some factors to consider before you do so.

Hurt Feelings Will Not Invalidate a Will

The first thing you need to remember is that, following a person’s death, there will almost always be someone who feels that they got ignored, left out, or the short end of the stick. They may have been led to expect a certain portion of the inheritance or a particular piece of property, only to find out later that such “promises” were never formalized in the will. If you feel slighted by your loved one’s decisions regarding his or her will, that is not sufficient grounds for challenging the document.

Appropriate Contests

There are, however, a number of situations in which you can file a challenge to your loved ones will. To be successful in such a challenge, you will need to show that:

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Lombard estate planning attorneysSadly, as long as there are vulnerable people in the world, unscrupulous individuals will attempt to exploit that vulnerability. This is especially a concern for those with elderly or disabled relatives. When someone exerts “undue influence” on an elderly or otherwise incapacitated person, they try to convince that person to make a different decision than he or she planned to make. This often occurs with financial and inheritance concerns. If you believe that your relative was under undue influence when he or she created a will or other estate planning document, you may be able to bring these suspicions to probate court.

Elderly Individuals and Those with Dementia Can Be Taken Advantage Of

Probate is the verification process which every will goes through in order for inheritance directions to be carried out after an individual dies. If you have recently lost a loved one and you suspect that his or her will does not actually reflect his or her final wishes, you may petition the court to have the will invalidated. This is called contesting the will. In order to prove your relative was under undue influence, you will need to show that:

  • Directions for asset distribution in the will are much different from what people close to the deceased would expect. For example, if close family members were left out of the will with no explanation, this may be evidence of undue influence or coercion;
  • The deceased person was particularly reliant on or trusting of the individual who you believe exerted influence;
  • Illness or cognitive decline made the deceased person susceptible to undue influence;
  • The person who you believe influenced the testator took advantage of him or her and benefited from this deceptive intimidation; and
  • The suspected influencer substituted his own desires for that of the will-maker.

It is important to note that unsolicited opinions and casual suggestions are not the same thing as undue influence. If your relative was mentally and physically independent, you may have a difficult time proving that his final wishes were not his own.

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Lombard estate planning attorneysImagine this scenario: Your elderly grandmother has lived with a caretaker for several years. She passes away and upon reading her will, you find that your grandmother has left all of her assets and belongings to the caretaker and none to her children or grandchildren. For many people, this would raise red flags. There are countless scenarios like this which lead to families contesting the validity of a loved one’s will.

When Should a Will Be Contested?

If you think that your loved one’s will does not accurately reflect his or her final wishes, you should contest it. Contesting the will means that you are asking the courts to deem the will invalid. Probate courts in Illinois can invalidate a will for several specific reasons. Firstly, a will can be thrown out if can be shown that the deceased person, or the decedent, was unduly influenced by someone during the will's creation. For example, in the hypothetical scenario above, the caretaker could have coerced the elderly grandmother to leave her property to him instead of her family.

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Posted on in Estate Planning

Lombard estate planning lawyersThere are many things to consider when you are creating your Last Will and Testament. One you may have not considered is what will happen if your will is contested. A will contest is a lawsuit that an individual files in order to invalidate a deceased person’s will. Someone might file a will contest because they don’t believe a family member’s or friend’s will accurately reflects their true final wishes. Any intestate heir or beneficiary named in the person’s will can file a will contest.

In previous blog posts, we have talked about challenging the will of a recently-deceased loved one using a will contest. Today, however, we will look at how you can help prevent your will from being challenged. There are a few things that can be done to protect your will. One of these is a provision included in the will known as a “no-contest clause.”

What Is a No-Contest Clause?

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Lombard estate planning lawyersChallenging the validity of someone’s will is not an easy undertaking, regardless of your reasons for opposing the document. Contesting a will is both time-consuming and expensive, and, in many cases, the effort to contest is more trouble than it is worth, especially in wake of the person's death. Additionally, not everyone is eligible to contest a will. In most cases, the person contesting must be listed as a beneficiary in the will in order to proceed with the objection.

Despite these considerations, however, there are certain instances where the desire to contest a will is understandable and within reason. In these cases, your best bet is to consult a competent estate planning attorney, who can help assist and guide you in the matter. You can begin the process by examining the following to determine whether or not you have legitimate grounds for contesting a will:

Can You Prove the Decedent Was Unduly Influenced?

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