Legal Question in Wills and Trusts in Illinois

Re: Estate Contest Odds of Success

The question of incompetency and/or undue influence is highly dependent on the facts of the decedent's health and living circumstances at the time the will and/or trust was executed or amended, and the degree to which the instrument departs from the decendent's known intent. This does not mean that if someone is cut out, they win because the law of intestate succession (the law that applies if there is no will) would give the disgruntled child a share. Anyone in this country is free to disinherit a child, and with planning, a spouse provided that was the decedent's intent. If you have sufficient evidence outside of the document, such as testimony from friends or other relatives, that it was the intention of the decedent to disinherit the disgruntled child, you should prevail in a contest. Also helpful is whether the decedent was healthy and of sound mind when the document was signed. Regardless of subsequent decline in health, those facts would also help you sustain your decedent's wishes in a will contest. That is why I urge my clients to make a will before they get sick, or "need" it.

I don't know the quantity of this type of litigation in Illinois courts, but we have prevailed on both sides of the question, depending on the facts. Fortunately, you are on the side of economic right because the estate or trust must bear the costs of defending a will or trust contest as an administration expense, while the disgruntled heir's legal fees and court costs will initially come out of their pocket, and, if unsuccessful, will not be borne by the other heirs.

Our comments are based on treating your question as a hypothetical. Accordingly, our comments could be substantially and materially different were we advised of all of the relevant facts and circumstances. Our comments are by necessity general in nature, and should not be relied upon in taking or forgoing action in your circumstances without retaining an attorney. In order to fully explore your legal matter, you should meet with us or another attorney and bring to any such meeting all relevant documents and correspondence, and any other relevant facts.

We are not hired to be your attorney, and no attorney-client relationship exists between us, unless and until you enter into a written retainer agreement with us, tender the agreed amount for a retainer and it is accepted by us. We reserve the right to decline representation should circumstances change.

As you are aware, in Illinois there are various deadlines for filing a complaint, filing an answer to a complaint, or taking other action in order to preserve your legal rights, and avoid a complete loss of those rights. You should retain counsel immediately in order to be fully advised of your rights, and to be fully informed of the applicable time period within which those rights must be asserted. If you were to delay in doing so, it might result in your potential cause of action being forever barred.