The death of a loved one in Illinois can be made even more difficult when the terms in his or her will come under question. When a will is challenged in court, two of the most common bases for its invalidity are lack of mental capacity and undue influence.
Here is summary of what these terms mean and how claims of lack of mental capacity and undue influence arise in Illinois.
Lack of mental capacity
The Illinois Courts define a person's mental capacity for the purposes of making a will as having three elements:
- the ability to know and remember one's offspring
- the ability to know what one owns
- the ability to devise a plan to dispose of one's property through a will or other means
Testators in Illinois are presumed to have the capacity to make a will. If an heir wants to challenge the validity of a will based on a testator's lack of capacity, they must prove that the testator would have failed to meet one of those three elements at the time she prepared and executed the will.
The Illinois courts define undue influence broadly as when a person's influence, "prevents the testator from exercising his own will in the disposition of the estate." Under Illinois law, there is a presumption of undue influence when the beneficiary under the part of the will that is being challenged is a caregiver and the money or property the caregiver receives is worth more than $20,000. For the purposes of this section of law, a "caregiver" is defined as a person who is not a family member of the testator but has taken on some responsibility of caring for him or her. It can also refer to the caregiver's family members, if they are named as beneficiaries under the will.
The presumption means that the portion of the will that leaves the caregiver the bequest will be invalidated in probate court if challenged, unless the caregiver can demonstrate that either no undue influence occurred, or that he or she was named recipient of a greater or equal bequest in the testator's will before becoming a caregiver.