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Illinois Probate Act 755 ILCS 5/8-2: Contest of Denial of Admission of Will to Probate

While wills are supposed to represent the final wishes of the testator, there are many instances in which the will does not truly represent the wishes of the testator. If there is evidence of fraud, mental incapacity or some other circumstance that would result in the will being invalid, Illinois law allows certain individuals to object to the will by filing a petition with the probate court. Of course whenever there is estate litigation that are two sides to the dispute. Even if the person filing the will contest prevails, the litigation may be extended due to an opposing party filing a contest of denial of admission of will to probate. If you have questions related to a will contest and a denial of admission of will to probate, discuss your concerns with an experienced Chicago will contest lawyer at the Law Offices of Stephen Bilkis & Associates.

Grounds for Contesting a Will

Under Illinois law, anyone who is a interested party has the right to petition the probate court to contest the will as long as the petitioner has grounds to do so. In other words, the petitioner would have to have a reason other than being unhappy that he (or she) was disinherited or because he wanted to receive an asset that went to someone else. The petitioner must have legal grounds such as:

  • Lack of testamentary capacity. The testator did not have the mental capacity to make a will.
  • Undue influence. The petition was manipulated by someone to make a will favorable to the petitioner.
  • Fraud. Someone forged the testator’s signature, forged the signatures of the witnesses, or use some other type of deceit to make the will.
  • Revocation. The will was revoked by the testator.
Consequence of Successful Will Contest

As a Chicago will contest lawyer will explain, if the petitioner prevails and the probate court judge denies admission of the will to probate, the decedent’s estate will be treated as an intestate estate. The estate administrator appointed by the court will distribute the estate assets to the surviving spouse, children, grandchildren, parents, siblings, grandparents, or other relatives based on the priority of heirship as described in the Illinois Probate Act. This result is significant as the revoked will likely had terms that would have resulted in a very different distribution of estate assets.

Contest of Denial of Admission of Will to Probate

Interested parties who supported the invalidated will have a right to contest the court’s decision by filing a petition to admit the will to probate. Such a petition must be filed within 6 months of the order denying admission to probate. Copies of the petition must be sent to the executor, the executor’s attorney, and the heirs and beneficiaries listed in the original petition for probate.

The petitioner must offer reasons to support his or her claim that the will is valid. Any interested party has the right to oppose the petition. If you believe that a will was wrongly denied admission to probate, contact a skilled will contest attorney in Chicago who has the resources and experience to represent your interests.

Related Statutory Provisions
  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 admission of will to probate; notice: Illinois Probate Act, 755 ILCS 5/8-1
Illinois Probate Act, Section 8-2- Contest of Denial of Admission of Will to Probate

(a) Within 6 months after the entry of an order denying 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 desiring to contest the denial of admission may file a petition to admit the will to probate in the proceeding for the administration of the decedent's estate or, if no proceeding is pending, in the court which denied admission of the will to probate. The petition must state the facts required to be stated in Section 6-2 or 6-20, whichever is applicable.

(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 legatee does not extend the time within which a petition to admit the will to probate may be filed under subsection (a) of Section 8-1 or affect the validity of the judgment entered in the proceeding.

(c) Any proponent or contestant may demand a trial by jury. An issue shall be made whether or not the instrument produced is the will of the testator. The proponent shall in the first instance proceed with proof to establish the validity of the will and may introduce any evidence competent to establish a will. Any interested person may oppose the petition and may introduce any evidence admissible in a will contest under Section 8-1. At the close of the contestant's case, the proponent may present further evidence to sustain the will.

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

(e) The court may order the representative to defend a proceeding to probate the will 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 do so in his stead.

(f) A person named as executor in a will that has been denied admission to probate has no duty to file or support a petition under Section 8-2.

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

Contact the Law Offices of Stephen Bilkis & Associates

If you are an interested party in a will contest and you believe that a will was wrongly invalidated, you have the right to contest the order denying admission to probate. Because of the complexity of estate litigation, it is important that you are represented by an experienced will contest attorney serving Chicago. The attorneys at the Law Offices of Stephen Bilkis & Associates have the skill, knowledge and resources to represent your interest in your estate matter, whether you are a beneficiary, heir, executor, or other fiduciary. 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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