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Illinois Probate Act 755 ILCS 5/4a-10: Presumption of Void Transfer

Oftentimes in the weeks, months, and years preceding death, testators are in failing health and must depend on caregivers for help with activities of daily living. In such situations it is not unusual for the testator to have very little contact with anyone but the caregiver. This type of isolation can lead to the ill testator to rely on the caregiver even more. As a result, the testator ends up changing his (or her) will to leave significant property to the caregiver. Unfortunately, the relationship between the testator and the caregiver far too often leads to the caregiver illegally influencing the caregiver into making a will favorable to the caregiver, instead of the testator deciding on his own to change his will. If you are concerned that the will of a loved does not reflect the true wishes of the testator, but is the result of the undue influence of a caregiver, contact an experienced Chicago will contest lawyer who will explain your options for challenging the will.

Presumption of Void Transfer

Under Illinois Probate Act, certain transfers to caregivers are automatically void. In order for there to be a presumption of void transfer, the following factors must be present:

  • The transfer must be a caregiver. The definition of caregiver is broad and includes those who help the testator with daily activities of living in either a paid or unpaid capacity. The definition extends to the family of the caregiver.
  • The fair market value of the property involved must exceed $20,000

The presumption of void transfer is a rebuttable presumption. The caregiver is allowed to show that the gift was not a result of undue influence with evidence that there was no undue influence, fraud, or duress. Or, the caregiver can rebut the presumption of void transfer by showing that the amount the testator left him (or her) in the will does not exceed what the testator was going to leave him prior to him becoming the caregiver. If you are a beneficiary named in a will and the gift to you is being challenged because you were the testator’s caregiver, it is important that you are represented by a Chicago will contest lawyer who will ensure that your legal rights are protected.

Will Contest

Under the Illinois Probate Act, interested parties have the right to challenge the validity of a will if they feel that the will was made due to undue influence, fraud or duress. Interested parties are typically limited to beneficiaries and heirs. A will contest must be filed within 6 months of when the will was filed with the probate court. The defendant has the right to submit evidence that rebuts the presumption that the transfer is void. If the will contest is successful, either the terms of the will that are related to the voided gift will be declared invalid, or the entire will will be thrown out since the court will not probate an invalid will. If the entire will is invalidated, then the decedent’s estate will be distributed based on the rules of intestate succession. If you would like to petition the probate court to challenge a will, immediately contact a will contest attorney in Chicago, as you have only a limited timeframe to contest a will. If you fail to file your objection within the timeframe, the probate court will dismiss your petition.

Example

At the age of 81, Hazel started to show the signs of dementia. Because her children lived out of state, they hired a caregiver, Brenda, to visit Hazel a few times a week to make sure that her needs were taken care of. Over the course of time Hazel became more and more dependent on Brenda, and more isolated from her children. Upon Hazel’s death, Hazel’s children learned that Hazel had changed her will to disinherit her children and leave her entire estate to Brenda. Hazel’s estate was worth over $100,000. Both of Hazel‘s children immediately filed a will contest claiming that the $100,000 bequest to Brenda was a void based on undue influence. Because the transfer to Brenda exceeded $20,000, and because Brenda was Hazel’s caregiver, the transfer is presumed to be a void. However, Brenda will have the opportunity to overcome the presumption with evidence that there was no undue influence, fraud, or duress.

Related Statutory Provisions
  1. Exceptions: Illinois Probate Act, 755 ILCS 5/4a-15
  2. Common law: Illinois Probate Act, 755 ILCS 5/4a-20
  3. Attorney’s fees and costs: Illinois Probate Act, 755 ILCS 5/4a-25
Illinois Probate Act, Section 4a-10- Presumption of Void Transfer

(a) In any civil action in which a transfer instrument is being challenged, there is a rebuttable presumption, except as provided in Section 4a-15, that the transfer instrument is void if the transferee is a caregiver and the fair market value of the transferred property exceeds $20,000.

(b) Unless a shorter limitations period is required by Section 8-1 or 18-12 of this Act, any action under this Section shall be filed within 2 years of the date of death of the transferor.

Contact the Law Offices of Stephen Bilkis & Associates

Whether you are the caregiver, another beneficiary, an heir, or the executor, and you are involved in a will contest based on undue influence, it is important that you are represented by someone with experience. The will contest attorneys serving Chicago at the Law Offices of Stephen Bilkis & Associates have years of experience representing beneficiaries, heirs, and executors, in estate litigation in Chicago. Contact us at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.

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