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When can a family member challenge a will?

If you are an executor for your parents’ or family member’s estate, you likely will face challenges when settling your loved one’s estate. The process takes time, it can be complicated, and you can face difficulty with heirs who are unhappy about what their share is in the estate.

You may find that a disgruntled sibling or family member wants to challenge the will. Yet what are the legal grounds for challenging a will? When is that a real possibility?

Here are the circumstances that can spur a valid dispute over a will:

  1. The will doesn’t meet applicable Illinois laws. Those include the following:
  • That the person writing the will is at least 18 years old
  • That the person writing the will is of sound mind
  • That two credible witnesses have validated the will (not necessarily at the same time)
  • That the will is not an oral will (It must be a written will.)
  • That the testator (the person writing the will) didn’t completely handwrite the will
  1. The person writing the will didn’t have the mental capacity to sign it. The testator has to understand the effect of signing the will and the assets they are designating to others. In legal terms, this is known as having testamentary capacity. Yet, Illinois law assumes people have the testamentary capacity to sign a will, unless proven otherwise.
  2. That the person creating the will did so under undue influence. This means that the testator created the will under the pressure of someone else, someone who perhaps paid for the will’s creation or who didn’t allow the testator to consult family members about it.
  3. Someone frauded the testator into signing the will. Perhaps the testator thought they were signing some other type of legal document: a power of attorney designation or the deed for a property, but it was in fact a will. This counts as fraud.

If you face a family dispute and someone wants to contest your loved one’s will, you should know that proving these circumstances isn’t easy. It’s also costly. You should consult an experienced estate planning attorney if a dispute leads to contesting a will. An attorney can help you determine how to best handle the situation.

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