What is a Will Contest and How Can I Avoid One?

Nobody wants to hear that their family members ultimately could contest, or challenge, the validity of their will. Yet that is what happens in a will contest. This is a legal term that refers to a specific type of proceeding during probate where a party challenges the validity of a deceased person’s will. What do you need to know about will contests, and how can you avoid one? Learn more from our Oak Park estate planning lawyers.

General Requirements for Contesting a Will

Under Illinois law, an interested party must move to contest a will within six months following the admission to probate of a will. When a party contests a will, Illinois law is clear that the “representatives and all the heirs and legatees of the testator must be made parties to the proceeding.” It is also possible to demand a jury trial.

Party Contesting the Will Must Have Standing

Illinois law makes clear that a party must have standing in order to contest a will. What is standing? This is a legal term that means, according to the Cornell Legal Information Institute (LII), the “capacity of a party to bring suit in court.” In other words, whether or not a person has standing essentially means whether or not the law allows them to bring a complaint, a lawsuit, or a claim under various circumstances. A party must have standing in order to contest a will in Illinois.

How does a person get standing, or have standing, to contest a will in Illinois? Illinois case law clarifies that standing “requires a direct, pecuniary, existing interest which would be detrimentally affected by the probate of the proffered will.”

How to Prevent a Will Contest

Anyone who is making a will wants to ensure that their wishes will be followed and that their assets will be distributed according to the terms they have set worth. With that in mind, you might be wondering if it is possible to avoid a will contest. There are multiple tips to consider when making a will so that it will not be contested later on. Consider the following:
  • Work with an attorney to make a will: Your attorney can ensure that all requirements for a valid will under the Illinois Probate Act have been met, and your attorney can also make recommendations and assist with additional steps if there is a likelihood that questions of testamentary capacity or undue influence may arise;
  • Make your wishes clear: Your attorney can help with this as you draft your will, but it is essential to be clear about your wishes and to avoid any vague language;
  • Communicate with your heirs: It is important to be clear with your family members and any other heirs about what is in your will so that they can understand your wishes and can know, directly from you, what to expect; and
  • Review your estate plan when necessary: It is important to review your estate plan from time to time with an attorney, and if any life changes occur, work with your lawyer to revise your estate plan.
In some cases, you might also be able to consider a “no-contest” clause in your will.

Contact an Oak Park Estate Planning Lawyer Today

Making a will is extremely important for every adult in the Oak Park area, and an Oak Park estate planning attorney can help. Contact the Emerson Law Firm to learn more about the estate planning services we provide to clients in Illinois.



See Related Blog Posts:

Should I Name a New Executor?

Should I Give Away My Property Before Death Instead of Making a Will?




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