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Grounds for Contesting a Will

Wills are fascinating legal documents because in them you will be able to deduce quite a few things about a person’s life and family dynamics. By and large, however, the terms of a will are difficult to challenge. Most states prefer to strictly follow the written document in the disposition of a decedent’s estate, and 99% of wills pass through probate with little trouble. The presumption is that the testator had made the will as a free agent.

Of course, interested parties may challenge a will within 6 months after the will has been admitted into probate. Typically, a will can be challenged most successfully when it is the spouse of the testator that poses it and on the grounds that there was undue influence or the testator lacked the mental capacity at the time the will was made. It is important to note that a successfully challenged will can be voided in its entirety, and in the absence of a previous will, the state intestacy laws will apply in the disposition of the estate. It is as if the testator never made a will at all.

Testamentary Capacity

The testator has to be 18 years old or above to make a will. Some states provide exceptions for an emancipated minor who is married or a minor serving in the military. There are no such exceptions provided for under Illinois law, so if you are a minor in Chicago your will can be successfully challenged just because of your age.

In large part, however, testamentary capacity refers to the mental capacity of the testator when the will was made. If the testator suffers from insanity, dementia, or under the influence of a drug at the time of making the will, it can be said that the testator did not understand what he or she was doing. According to the website of Peck Ritchey, LLC, the testator “must possess the mental capacity to understand the consequences” in order for a will to be considered valid.

Undue Influence and Fraud

Some people can be tricked, coerced or persuaded by a third party into making a will that is not a reflection of the true intent of the testator. They all essentially presume that the testator was not a free agent at the time the will was made. In some instances, the signature of the testator was forged, which is perhaps the easiest to prove.

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