Contesting the Validity of a Will

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In Illinois, a person adversely affected by the will of a deceased person may contest the validity of that will. Any claim contesting a will must be filed within 6 months after the court enters an order which admits the will to probate.
Persons Entitled to Contest a Will

In order to contest a will, a person must have what the law calls “standing”. This means that the person must have a direct, financial, and existing interest which would be detrimentally affected by the acceptance of the will by the courts. Examples of such persons would be a spouse or a child that was excluded from any inheritance. This could even include persons who were named in a prior will that would become effective if the current will is determined to be invalid. The courts strictly enforce the requirement of standing.

Grounds for Invalidating a Will

A will may be invalidated because there was undue influence exerted on the person making the will. A will may also be set aside if the person lacked capacity to make a will. Wills can also be invalidated for fraud, forgery, and ignorance of the contents of the will. However, the most common grounds alleged are undue influence and lack of capacity to make a will.

A court will find that undue influence exists when such influence prevents the person making the will from exercising his own free will in the disposition of his estate. The undue influence must have been directly connected with the preparation and signing of the will. Undue influence can be exerted by direct beneficiaries or by third parties, such as the spouse of a beneficiary.

A presumption of undue influence can result when a fiduciary relationship exists between the person making the will and a person who receives property by the terms of the will. A fiduciary relationship exists if these four factors are proven: (1) the existence of an attorney-client relationship or other fiduciary relationship between the decedent and the beneficiary such that the beneficiary is the dominant party, (2) that the decedent reposed trust and confidence in the beneficiary, (3) that the beneficiary prepared or procured the preparation of a will, and (4) that the beneficiary would receive a substantial benefit under the terms of the will.

A fiduciary relationship may exist between an elderly or infirm person and a beneficiary who provides care and assistance. Also, one who handles the financial affairs of the person creating the will may be found to be a fiduciary.

Once the presumption of undue influence is made by the court, the burden falls on the person who allegedly exercised undue influence to prove that the will was not a result of undue influence.

Lack of testamentary capacity is another common ground for invalidating a will. Testamentary capacity is defined as “the mental ability to know and remember who are the natural objects of one’s bounty, to comprehend the kind and character of one’s property, and to make a disposition of the property according to some plan formed in one’s mind”.

The law presumes the sanity and soundness of mind of every person until the contrary is proved. Anyone contesting a will on grounds of lack of capacity has the burden of proving that the deceased was not of sound mind. The proof must relate to a time at or near the signing of the will since the will may only be invalidated if it is proven that the person lacked testamentary capacity at the time the will was signed.

In such cases, proof of a person’s medical condition is often critical. Testimony from persons that are well acquainted with decedent is also essential. Finally, the testimony of the attorney who prepared and supervised the signing of the will is extremely important.

Lack of testamentary capacity is difficult to prove because the decedent only had to know and remember the persons who would have been the natural object of his bounty, to understand his property, and to have some plan as to how to dispose of his property. Persons who are infirm physically or suffer from dementia certainly can meet this standard, even though they are unable to think or function at a normal level.


Contesting the will can be difficult if there is not clear evidence of incapacity or undue influence. The attorney who prepared the will has an interest in defending the integrity of the will almost always testify that the will properly stated the wishes of the decedent. Certain evidence rules may prevent the admission of testimony regarding conversations between the deceased and persons making a claim that the will is invalid. This is a huge hurdle when the claim is based upon promises made by the decedent to the person contesting the will. The person contesting the will has the burden of proving that the will was invalid. Often the executor of the estate is in possession of evidence that demonstrates the reasons why the person challenging the will was excluded from its terms. For example, the executor may have proof that the person excluded from the will received substantial benefits during the lifetime of the decedent or that the person contesting the will had a poor relationship with the decedent.

Despite these difficulties, there can be successful challenges to a will. However, proof must be carefully assembled to determine whether there is good cause to challenge a will.