Illinois Probate Act 755 ILCS 5/4a-15: Exceptions

Caregivers are often in a unique position with respect to their vulnerable clients. Because their clients often live alone and have little family or friends nearby, their clients come t rely on the caregiver and trust the caregiver. Sadly, on many occasions the caregiver takes advantage of the situation and manipulates the client into leaving the caregiver a significant gift in his (or her) will. To discourage caregivers from taking advantage of vulnerable testators, Illinois passed a rule that made testamentary gifts to caregivers that exceed $20,000 void. However, there are exceptions to this rule such that the presumption can be rebutted. If you are involved in a challenge to a will as a caregiver who is the beneficiary, or as an interested party, contact an experienced Chicago will contest lawyer who will explain how a will challenge works and who will ensure that your legal rights are protected.

Under the Illinois Probate Act, if a testator includes a gift in his will to a caregiver that exceeds $20,000, the presumption is that the gift is void. A caregiver is anyone that helps the testator with activities of daily living whether or not the caregiver is paid. This presumption extends to family members of the caregiver including spouse, cohabitant, child or employee. However, a family member of the testator such as a spouse, child, sibling, niece, nephew, or cousin would not be considered a caregiver for the purposes of voiding a transfer.

The statutory presumption that a transfer from a testator to a caregiver is void can be overcome if the caregiver produces evidence of one of the following:

• That there was no fraud, duress, or undue influence involved in the decision of the testator to make the caregiver a beneficiary. The caregiver must prove this by clear and convincing evidence.
• That the value of the gift to the caregiver does not exceed the value of the gift that the testator gave to the caregiver in a will that was in effect prior to the person becoming a caregiver. The caregiver must prove this by a preponderance of evidence.

If you are a caregiver whose bequest is being challenged during probate in a will contest, it is important that you are represented by a skilled Chicago will contest lawyer who has experience defending clients in estate litigation in Chicago courts.

Michael and his wife Sarah have three sons. Sarah predeceased Michael. At the age of 85, Michael was diagnosed with Alzheimer’s. His three sons lived out of state so that they were only able to visit Michael a few times each year. However, they hired Kristen to become Michael’s caregiver. Kristen, was Sarah’s niece, and had been very close with Michael, Sarah, and the three sons for years. When Michael passed away, the three sons were surprised to learn that Michael had left Kristen $50,000 in his will. That was the same amount of money that he had left each of the three sons. The three signs were upset about the gift to Kristen, and challenged the gift in a will contest. However, with the help of a will contest attorney in Chicago, Kristen prevailed in the will contest as she was able to prove that Michael had included the gift in his will years ago even before Sarah had passed away.

1. Presumption of void transfer: Illinois Probate Act, 755 ILCS 5/4a-10
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

The rebuttable presumption established by Section 4a-10 can be overcome if the transferee proves to the court either:

(1) by a preponderance of evidence that the transferee's share under the transfer instrument is not greater than the share the transferee was entitled to under the transferor's transfer instrument in effect prior to the transferee becoming a caregiver; or

(2) by clear and convincing evidence that the transfer was not the product of fraud, duress, or undue influence.

If you are an interested party in estate litigation involving a caregiver receiving a testamentary gift, contact an experienced will contest attorney serving Chicago at the Law Offices of Stephen Bilkis & Associates. With years of experience representing clients in estate matters, we have the skill, knowledge, and resources to help. Contact us at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.