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What is a will contest?

If you are an Illinois resident who has been disinherited by a family member or otherwise are dissatisfied with the provision of someone’s will, you can challenge the authenticity of the will in court. This is called a will contest. As FindLaw explains, however, contesting a will is rarely successful. Up to 99 percent of American wills go through probate with no problems and no challenges.

Nevertheless, if you are the surviving spouse of the testator (i.e., the person who made the will), you have a better chance of successfully contesting the provisions of your spouse’s will with which you take issue. Likewise, if you are a close relative of the testator, such as a biological or adopted child, a parent, or a sibling, your chances of mounting a successful will challenge are increased.

A successful will contest can result in part or all of the will being voided. There can be reinstatement of provisions in a will previously executed by the testator. If the court finds that the will is totally void, the State of Illinois will distribute the testator’s property as if he or she had died intestate; that is, without having ever made a will.

Grounds for challenging a will

One of the best will challenges you can make is that the testator lacked the testamentary capacity to make a will. Testamentary capacity means that all of the following four conditions must have been met:

  1. The testator was at least 18 years of age.
  2. He or she knew both the value and extent of his or her property.
  3. He or she knew who his or her natural beneficiaries were, such as spouse or children, and also knew that he or she was expected to provide for them.
  4. He or she knew how points two and three related to each other so that a “proper” property distribution could be achieved.

Another often successful will challenge you can make is that the testator was under the undue influence of someone else, such as a caregiver, at the time he or she executed the will.

This information is provided for educational purposes only. You should not interpret it as legal advice.

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