Illinois Probate Act 755 ILCS 5/4-1: Capacity of Testator

Under the Illinois Probate Act, in order for a will to be valid in Illinois, the testator must have had the capacity to make the will. Capacity means that the testator must have been at least 18 years old at the time he or she executed the will, and that he had the mental capacity to execute the will. If the testator lacked capacity, then the will would could be declared invalid through a will contest. If you have concerns about the testamentary capacity of a loved one, immediately contact a Chicago will contest lawyer to discuss your concerns.

In addition to meeting the 18-year old get requirement, in order to have testamentary capacity the testator must have had the mental capacity in order to create a will. There is a 3 factor test for mental capacity:

• The testator must have understood what is meant to create a will
• The testator must have a general idea of the value of his estate and the property included in his estate
• The testator must have must understand who is relatives are

Testamentary capacity must have existed at the time that the will was executed. For example, if the testator executed the will in 1998, and suffered a head injury in 2015 that left him with severe brain damage, his will would still be valid as long as he had the required mental capacity in 1998. Similarly, many people who suffer from dementia have periods of lucidity. If the will was executed during one of those periods, then there would be a strong argument that the testator had the mental capacity to make the will.

Under the Illinois Probate Act, a person would be presumed to lack testamentary capacity if he was determined to be disabled due to mental deterioration or physical incapacity, or if a guardian was appointment over the person. However, the presumption is rebuttable if clear and convincing evidence is presented that the person had the requisite testamentary capacity to make a will. If you would like more information about the ability of a disabled individual to execute a will, contact a Chicago will contest lawyer.

Under Illinois probate law, one of the reasons that a will can be challenged is that the testator lacked capacity and, therefore, the will does not reflect the wishes of the testator. However, only those who are interested parties have the legal right to challenge a will. “Interested parties” are those who have an immediate, direct, financial interest in the will, such as beneficiaries and heirs.

Within 6 months of when the executor files the will with the court to begin the process of probate, an interested party has the right to file a petition to challenge the will. The executor is required to defend the estate against such challenges. If the court determines that the will is not valid, then the judge will throw it out and treat the estate as if the testator passed away without a will.

As a will contest attorney in Chicago will explain, if a will is declared invalid due to the capacity of testator or for any other reason, the probate court judge will have no choice but to throw out the will. As a result, the decedent’s estate will be distributed to the decedent’s legal heirs based on the rules of intestate succession. This means that the estate will go to the decedent’s surviving spouse and children. In the absence of a surviving spouse and children, the estate will go to the parents, siblings, and other relatives.

1. Descent and distribution: Illinois Probate Act, 755 ILCS 5/2-1
2. Contest of admission of will to probate; notice: Illinois Probate Act, 755 ILCS 5/8-1
3. Contest of denial of admission of will to probate: Illinois Probate Act, 755 ILCS 5/8-2

(a) Every person who has attained the age of 18 years and is of sound mind and memory has power to bequeath by will the real and personal estate which he has at the time of his death.

(b) Except as stated herein, there is a rebuttable presumption that a will or codicil is void if it was executed or modified after the testator is adjudicated disabled under Article XIa of this Act and either (1) a plenary guardian has been appointed for the testator under subsection (c) of Section 11a-12 of this Act or (2) a limited guardian has been appointed for the testator under subsection (b) of Section 11a-12 of this Act and the court has found that the testator lacks testamentary capacity. The rebuttable presumption is overcome by clear and convincing evidence that the testator had the capacity to execute the will or codicil at the time the will or codicil was executed. The rebuttable presumption does not apply if the will or codicil was completed in compliance with subsection (d-5) of Section 11a-18 of this Act. This subsection (b) applies only to wills or codicils executed or modified after the effective date of this amendatory Act of the 99th General Assembly.

A testator must have testamentary capacity not only to create a will, but also to modify a will with a codicil. If you have concerns about the capacity of a relative to make a will or codicil, contact a will contest attorney serving Chicago at the Law Offices of Stephen Bilkis & Associates. We have years of experience representing executors, beneficiaries, and heirs in disputes and other matters related to wills, trusts, powers of attorney, and other estate documents. Contact us at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.