How do I contest my aunt's will?
Full Question:
Answer:
A will must be prepared and properly executed (signed and witnessed by a certain number of competent witnesses) while a person still has legal or testamentary capacity. A person must execute a will while he or she has full control over his or her mental functions. If a person waits until he or she suffers an accident or an illness, it could be too late. Testamentary capacity means the maker understands the nature of making a will, has a general idea of what he/she possesses, and knows who are the members of the immediate family or other "natural objects of his/her bounty". Testamentary capacity requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. Also, it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.
To change a will, a person can prepare and properly execute an entirely new will that revokes the previous will or prepare and properly execute a codicil to the will. A codicil is a separate document that adds to and/or replaces one or more provisions in an existing will.
Will contests challenge the admissibility of wills in probate courts. It is a kind of litigation that questions whether a will should be properly admitted by the court as evidence of a decedent's wishes regarding the distribution of his estate, appointment of guardians for minor children, or other issues dealing with the decedent's estate. One may not contest the validity of a will merely because that person does not like the will's provisions. A will's validity is not determined by one's sense of "fairness" of the will's contents. Nor is a will's validity determined by how reasonable the will's provisions appear nor on the timing of disbursements. A will is most likely to be challenged by someone claiming that the will was not properly written, signed or witnessed, or did not meet the state's formal requirements; the decedent lacked mental capacity at the time the will was executed; the decedent was a victim of fraud, force, or undue influence; or the will is a forgery. If a will contest is successful, the entire document may be thrown out. Alternatively, the probate court may reject only the part of the will that was challenged. If the entire will is disallowed, the court will distribute the decedent's property as if the person died without a will. If possible, the court may use a previous will, but such action will depend on state law and the facts and circumstances of the case. Will contests are not uncommon, but few people actually win one. They can be very expensive and create lengthy delays in the distribution of an estate's assets. A person must have legal "standing" to object to a will. What constitutes standing is determined by state law, but generally it means someone who either is a party mentioned in a will or perhaps should have been a party to the will based on a legal relationship to the decedent.
The following are Illinois statutes:
755 ILCS 5/4-1
Sec. 4-1. Capacity of testator.) Every person who has attained the age of
18 years and is of sound mind and memory has power to bequeath by will the
real and personal estate which he has at the time of his death.
755 ILCS 5/4-3
Sec. 4-3. Signing and attestation.
(a) Every will shall be in writing, signed by the testator or by some
person in his presence and by his direction and attested in the presence of
the testator by 2 or more credible witnesses.
(b) A will that qualifies as an international will under the Uniform
International Wills Act is considered to meet all the requirements of
subsection (a).
755 ILCS 5/4-7
Sec. 4-7. Revocation — revival.
(a) A will may be revoked only
(1) by burning, cancelling, tearing or obliterating it by the testator
himself or by some person in his presence and by his direction and
consent, (2) by the execution of a later will declaring the revocation,
(3) by a later will to the extent that it is inconsistent with the prior
will or (4) by the execution of an instrument declaring the revocation
and signed and attested in the manner prescribed by this Article for the
signing and attestation of a will.
(b) No will or any part thereof is revoked by any change in the
circumstances, condition or marital status of the testator, except that
dissolution of marriage or declaration of invalidity of the marriage of the
testator revokes every legacy or interest or power of appointment given to
or nomination to fiduciary office of the testator's former spouse in a will
executed before the entry of the judgment of dissolution of marriage or
declaration of invalidity of marriage and the will takes effect in the same
manner as if the former spouse had died before the testator.
(c) A will which is totally revoked in any manner is not revived other
than by its re-execution or by an instrument declaring the revival and
signed and attested in the manner prescribed by this Article for the
signing and attestation of a will. If a will is partially revoked by an
instrument which is itself revoked, the revoked part of the will is revived
and takes effect as if there had been no revocation.
755 ILCS 5/4-9
Sec. 4-9. Effect of alteration. An addition to a will or an alteration,
substitution, interlineation or deletion of any part of a will which does
not constitute a revocation of a will is of no effect, unless made by the
testator or by some person in his presence and by his direction and consent
and unless the will is thereafter signed and attested in the manner
prescribed by this Article for the execution of a will.
755 ILCS 5/8-1
Sec. 8-1. Contest of admission of will to probate; notice.
(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.
755 ILCS 5/8-2
Sec. 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.
