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Contesting a will that benefits a caretaker

One of the reasons a person might contest a will is because it gives valuable property to someone that the person believes had undue influence over the deceased testator. Undue influence can be a legal cause of a will contest. This type of situation has arisen in the caretaker-beneficiary setting.

Recently, the will contest concerning Mr. Cubs, Ernie Banks’ estate spotlighted the issue of potential caretaker over-influence on a vulnerable person in the months prior to his passing. In that case, shortly before he died, Mr. Banks changed his will, leaving control over his estate to his business manager. Both his children and his estranged spouse then contested the will.

Shortly after Mr. Banks changed his will, the newer law called the Presumptively Void Transfer Act came into effect. That law, among other things, creates a presumption that the transfer of property worth more than $20,000 to a caretaker, is invalid or void. Once a party gets the court to find the presumption that the transfer is void, the caretaker may choose to rebut the presumption. If unsuccessful, however, the caretaker will have to pay the attorneys’ fees and costs of all parties. The PVTA will not apply to the Banks’ case because Mr. Banks’ last will was made before the effective date of this new law.

In the Banks’ case, the contesting children and wife have to establish a presumption of undue influence. To do so, they have to prove that the caretaker had a fiduciary duty to their father and husband. They must also establish that the caretaker played a part in getting the will changed. If they can show that, the presumption of undue influence occurs and the caretaker will then have the burden to rebut the presumption. Both burdens involve a significant presentation of detailed factual evidence. The parties may include facts pertaining to the mental capacity of Mr. Banks to legally be able to change his will and undue influence by the caretaker.

The take home point, both before and after the new law, may still be that one needs to be wary of the ever potential for a will or transfer to be contested. When a person wishes to change his or her will to leave a notable part of the estate to a person of great influence in the individual’s life, extra steps should be taken to ensure there will be strong evidence later that there was no undue influence.

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9991 191st Street
Mokena, IL 60448

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