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Lombard estate planning attorneysIt is not easy to think about what will happen to your personal belonging and financial assets after your death. However, the process of estate planning can be an important part of providing your surviving family members with the security and peace of mind that they deserve.

Unfortunately, it is not uncommon for families to become fractured and split by disagreements over the estate of a deceased loved one. Such disputes can lead to many years of bitterness between family members who were once close. In some cases, a family member might feel so left out that he or she files a challenge to the decedent’s will. While there is no way to fully guarantee that one of your family members will not contest your will, there are few things you can do to reduce the possibility of such action.

1.  Make Your Plan Early

Many will contests are filed on the basis that the testator—the person who wrote the will—did not have the mental clarity needed to execute a will. The longer you wait to write a will, the more likely it is that your advancing age, decreasing health, and other considerations might be used as “reasons” for contesting your will. Draft and execute your will long before your mental state could reasonably be questioned, and work closely with a qualified estate planning lawyer.

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DuPage County Wills and Trusts AttorneyThe instructions contained in a person’s Last Will and Testament are deeply personal. An individual usually thinks long and hard about how he wants his estate divided among heirs before putting these decisions in writing. According to Illinois law, wills produced through undue influence, coercion, force, or fraud are not legally-binding. If you believe that your loved ones will does not reflect his or her actual final wishes, you may be able to challenge the validity of the will in court. Challenging a will can be a complex legal endeavor. Help from an experienced estate planning lawyer may be necessary in these cases.

Did Your Loved One Have the Mental Capacity to Understand the Will?

When we age, both our bodies and our minds tend to weaken. In order for a person to be able to legally enter into a contract such as a will, he or she must have the mental ability to understand what he or she is agreeing to. This so-called “testamentary capacity" includes an understanding of the value of the property addressed in the will, an understanding of who should logically inherit this property, and the consequences of signing a legally binding document. Not everyone with dementia or another mental disability is unable to legally consent to a will, however. It is up to the person challenging the validity of the will to prove that his or her loved one could not consent to the document. In situations like this, the validity of the will may hinge on testimonies of the witnesses to the will signing, medical evidence, or an adjudication of incapacity.

Was Your Loved One Under Duress When Signing the Will?

Legal documents, such as wills and trusts, which are entered into through coercion or force are not legally valid. This means that if your loved one only agreed to the terms of the will because he or she was afraid not to, the will may be unenforceable. Duress can include threats of harm to the testator or his or her loved ones, intended harm, or other stress put upon the testator intended to get them to do something they would not otherwise do. Only estate planning documents signed and agreed to by the testator’s own free will can be enforced.

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DuPage County estate planning attorneyThe time after the death of a loved one is almost always difficult, even if the death was preceded by a lengthy illness or years of health problems. When you are dealing with the grief and other emotions associated with loss, it can be especially troubling to learn that your loved one’s will was recently changed to benefit a particular beneficiary in a way that seems suspicious. If you have a reason to believe that the beneficiary—or anyone else—tricked or forced your loved one into amending his or her will, you may have the grounds to contest the will based on undue influence.

The Importance of Voluntary Testaments

Every person has the right to decide how his or her assets will be distributed on the person’s death. It is very important, however, for those decisions to be voluntary. A person who has been deceived or coerced into making certain choices about his or her property is not making them voluntarily. He or she is being manipulated.

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Posted on in Estate Planning

Lombard estate planning lawyerThe reading of a deceased person’s will is often portrayed in movies and on television as a highly dramatic event. Usually, some conflict, plot point, or comic relief revolves around heirs being surprised about what they will be receiving as an inheritance. In some cases, the scene is meant to draw attention to someone being left out of the will. In real life, things are rarely so theatrical, though the feeling of being neglected or left out of a loved one’s will can be quite unpleasant and possibly offensive. Depending on the situation, such a person may wish to contest the will—especially if he or she believes that he or she was excluded by mistake or due to fraud of some kind.

Grounds of a Will Contest

If a loved one’s will left you with less of inheritance that you expected or none at all, contesting the will could be an option, but doing so is not likely to be easy. First, you must understand that a will contest must be based on legitimate grounds. A decision that you do not agree with is not enough. For a will contest to be successful, you will need to show that:

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Lombard estate planning lawyerWhen you are dealing with the loss of a family member or loved one, financial and property considerations may be the furthest thing from your mind. In the weeks that follow, however, your intense emotions are likely to subside, giving you the space to think about your loved one’s estate and his or her will. Depending on your relationship to the person and his or her accumulated property, you may be expecting a sizable inheritance. But what happens if the terms of the will are not what you expected? What if your inheritance is less than you were promised? According to Illinois law, you may have the option of contesting your loved one’s will, but doing so may not always be the best choice.

Contesting a Will

The law provides certain people with the right to file a will contest, including those who would have some claim to the decedent’s estate if the person had died without a will as well as those named in previous wills. This means that if the person who died was a family friend rather than a relative and you were never named in any version of his or her will, you have no standing to contest the final will.

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Lombard estate planning lawyersIn the weeks and months following the death of a loved one, you are likely to experience a wide range of emotions. Grief and sadness, of course, are often the most common, but you may also feel twinges of anger, guilt, and regret over missed opportunities. If your loved one was very sick or in pain, there may even be a sense of relief. All of these feelings are a normal part of dealing with a significant loss and are to be expected.

If your loved one had a will or another type of estate planning document, the emotional rollercoaster may resume when it comes time to execute the will. Many of the same feelings may come flooding back, possibly accompanied by a great deal of surprise if the will contains unexpected terms and provisions or is not the same document you discussed with your loved one prior to his or her death. When such surprises occur, it is worth trying to find out if the will was the product of undue influence and whether contesting the will is appropriate.

What Is Undue Influence?

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Lombard estate planning lawyersIn a recent post on this blog, we talked a little bit about how to decide if and when you should challenge the will of a recently-deceased loved one. Such a decision is never easy and must be made with great care. But, what about the other side of the equation? Is there anything you can do to help prevent a contest of your own will, if and when the time comes? In fact, there are a few things that can be done, including a provision that can be included right in the will itself. It is known colloquially as a non-contest clause and can be a useful tool in simplifying matters after your death.

What Is a No-Contest Clause?

A no-contest clause is sometimes referred to as an in terrorem provision. In terrorem translates from Latin as “about fear,” and such a clause in a legal document provides some sort of penalty to a party who challenges the document and loses. In the realm of estate planning, no-contest clauses may be used in the creation of wills or trusts to discourage most challenges from named heirs or beneficiaries.

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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.

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Lombard estate planning attorneysProcessing a loved one’s death is hard enough on its own. There is no measure for the hurt and overwhelming range of emotions that comes with saying goodbye to someone near and dear to your heart and family. When it comes time to handling wills and other estate documents following the death, the very last thing anyone wants to deal with is an estate dispute.

Whether you discover an inaccuracy or you are simply having a hard time believing the information found in the document to be fair, examining a loved one’s wishes and estate arrangements after they are gone can be overwhelming, to say the least. Deciding to mount a legal challenge can be even more difficult.

Factors to Consider

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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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