Illinois Probate Act 755 ILCS 5/8-1: Contest of Admission of Will to Probate; Notice

Because a last will and testament is supposed to represent the true wishes of the testator with respect to how he would like his estate to be distributed, Illinois Probate Act allows interested parties to object to petition the court to object to a will being admitted to probate if there is evidence that the will is not in fact a statement of the testator’s wishes. If you believe that the will of a loved one is invalid and you are an interested party, you have the right to contest the will. However, there are strict rules as to how a contest of admission of will to probate must be filed in order for the court to take it under consideration. To learn more about the process, contact an experienced Chicago will contest lawyer at the Law Offices of Stephen Bilkis & Associates to discuss your concerns. We are here to help.

Under section 8-1 of the Illinois Probate Act, any interested party has the right to contest the validity of a will within 6 months of the date that the will was admitted to probate. Interested parties include anyone who has an immediate, direct financial interest in the estate. This would include beneficiaries that the testator named in the will. It would also include heirs who would inherit if the will is found to be invalid. To start the process of contesting a will, the petitioner must file a petition with the probate court. He (or she) must also send a notice to the executor of the estate, the executor’s attorney, and each beneficiary or heir listed in the petition to admit the will to probate. The executor has the duty to defend the will.

The petitioner must have legal ground to contest the validity of the will. As a will contest attorney in Chicago will explain, legal grounds include:

• Lack of testamentary capacity. If at the time the will was executed the testator did not have the mental capacity to understand the ramifications of making a will, the will would not be valid.
• Undue influence. A will would have been executed based on undue influence if someone used his or her position of power over a vulnerable testator to manipulate him into creating a will that he would not have made. Such a will would typically be favorable to the manipulator or a member of the manipulator’s family.
• Fraud. A will that was forged or that was the result of the some other type of fraud would be invalid.
• Revocation. A revoked will is no longer valid. However, in Chicago there are specific steps that a testator must take in order to successfully revoke will. The testator must take outward steps to revoke it such as burning it, tearing it, or in some other way obliterating it. Or, the testator must execute a document stating that intention to revoke the will. The document must be signed by the testator and witnessed by at least 2 people. To learn more about the steps necessary to revoke a will, contact a Chicago will contest attorney.

If the will is found to be invalid, then the judge will throw it out. The decedent’s estate will be treated as if the decedent died without a will. The judge will appoint an estate administrator to manage the estate, and the assets will go to the decedent’s heirs based on the rules of intestate succession. Legal heirs under intestate succession are limited to the surviving spouse, descendants, parents, siblings, and other blood relatives. In the absence of relatives, the decedent’s assets would escheat to the state of Illinois.

1. Capacity of testator: Illinois Probate Act, 755 ILCS 5/4-1
2. Presumption of void transfer: Illinois Probate Act, 755 ILCS 5/4a-10
3. Contest of denial of admission of will to probate: Illinois Probate Act, 755 ILCS 5/8-2

(a) Within 6 months after the admission to probate of a domestic will in accordance with the provisions of Section 6-4, or of a foreign will in accordance with the provisions of Article VII, any interested person may file a petition in the proceeding for the administration of the testator's estate or, if no proceeding is pending, in the court in which the will was admitted to probate, to contest the validity of the will.

(b) The petitioner shall cause a copy of the petition to be mailed or delivered to the representative, to his or her attorney of record, and to each heir and legatee whose name is listed in the petition to admit the will to probate and in any amended petition filed in accordance with Section 6-11, at the address stated in the petition or amended petition. Filing a pleading constitutes a waiver of the mailing or delivery of the notice to the person filing the pleading. Failure to mail or deliver a copy of the petition to an heir or a legatee does not extend the time within which a petition to contest the will may be filed under subsection (a) of this Section or affect the validity of the judgement entered in the proceeding.

(c) Any contestant or proponent may demand a trial by jury. An issue shall be made whether or not the instrument produced is the will of the testator. The contestant shall in the first instance proceed with proof to establish the invalidity of the will. At the close of the contestant's case, the proponent may present evidence to sustain the will. An authenticated transcript of the testimony of any witness taken at the time of the hearing on the admission of the will to probate, or an affidavit of any witness received as evidence under subsection 6-4(b), is admissible in evidence.

(d) The right to institute or continue a proceeding to contest the validity of a will survives and descends to the heir, legatee, representative, grantee or assignee of the person entitled to institute the proceeding.

(e) It is the duty of the representative to defend a proceeding to contest the validity of the will. The court may order the representative to defend the proceeding or prosecute an appeal from the judgment. If the representative fails or refuses to do so when ordered by the court, or if there is no representative then acting, the court, upon its motion or on application of any interested person, may appoint a special administrator to defend or appeal in his stead.

(f) An action to set aside or contest the validity of a revocable inter vivos trust agreement or declaration of trust to which a legacy is provided by the settlor's will which is admitted to probate shall be commenced within and not after the time to contest the validity of a will as provided in subsection (a) of this Section and Section 13-223 of the Code of Civil Procedure.

(g) This amendatory Act of 1995 applies to pending cases as well as cases commenced on or after its effective date.

If you believe that the will of a loved one is invalid, you must file a petition to contest the will in the manner prescribed in the Illinois Probate Act. Failure to do may result in you losing your opportunity to ask the court to invalidate the will. Thus, it is important that you not attempt to contest a will on your own without an attorney. It is critical to have an experienced will contest attorney serving Chicago representing you during what will likely be a contentious process. The experienced attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing executors, beneficiaries, and heirs in will challenges and other types of litigation involving estates. We are here to help. Contact us at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.