Filing Will Contests

In order to pass assets and property under the last will and testament, the will must be probated or go through the probate process. In the event that there is an error or complication with will, will contests may be filed by the personal representation to correct this issue. However, because the court typically wishes to uphold the directions of the grantor as explained in the will, it can be quite quite difficult to overturn the provisions of the will. Without the proper legal representation and a well-supported defense, the court typically tries to honor the will and rarely deviates from its instructions.

While most wills do proceed through the probate process without complication, it can sometimes be legally wise for individuals or families to consider challenging a will. Our Chicago estate planning attorneys provide legal counsel to clients to advise them when and how to file a successful will contest.

Bases for Will Contests

Chicago Estate Litigation | Will ContestA proper will must be constructed of sound mind by an adult in order to satisfy the grounds of testamentary capacity.  Challenges to testamentary capacity are one of the most popular bases utilized for filing will contests. Will contests on the grounds of testamentary capacity typically try to discredit the mental ability of the grantor at the time in which the will was drafted. Most notably, testamentary capacity litigation tries to exposes that the grantor suffered senility, dementia, substance influence or some compromising mental illness. Some testamentary capacity claims also argue that the grantor either did not understand the value of the estate or that the grantor did not understand the true impact of the will on the affected loved ones, suggesting that under sound mind, the grantor would have wanted a different outcome.

Another common ground to file a contest is on the basis fraud, forgery and undue influence. In this case, the personal representative would be claiming that the will was corrupted by a third party and extorted for personal gain. Undue influence suggests that, during the construction of the will, the grantor was manipulated or forced into willing assets and property against their true wishes. Although difficult to prove without concrete evidence, undue influence charges are some of the most serious claims to make against a will.

One common denominator for successful will contest is that it is usually executed by a surviving spouse. The spouse most often understands the desires of the deceased better than any other individual, so the court is often most receptive to their arguments.

The most simple way to avoid estate litigation and challenge a will is through the presentation of a newer will. If the personal representative discovers a newer will and it is clear that this will was drafted after the former document, then court will automatically adopt the terms and provisions of the newer manuscript. It is crucial for this reason when creating a will, or a secondary will for that matter, to clearly indicate the date in which the will was created.  A clear indication of the date of creation not only facilitates the estate disposition process for your loved ones but it also ensures that your last wishes are properly understood.

There are certain aspects of the will which can actually be challenged without a will contest during the probate process. It is thus crucial to seek legal support to understand the easiest and most appropriate manner to dispute the provisions of a will. Our Chicago estate planning attorneys provide legal representation for individual and families to discuss your particular case and decide whether a will contest is the best estate litigation approach for you.