How does an Illinois Will Contest work?

Sometimes, there are facts and circumstances surrounding the making and execution (signing) of a Will in Illinois that causes interested parties to an estate to question its validity.  So, what issues can give rise to a potential Will contest in Illinois?  Let’s take a closer look.


Common Reasons to Challenge a Will in Illinois


In Illinois, there are two common allegations in Will contests:  undue influence and lack of testamentary capacity.  Undue influence is involved when a person attempts to unlawfully coerce the testator (Will-maker) into making a Will that is not the testator’s actual intent.  Lack of testamentary capacity is involved when the testator (Will-maker) does not have the mental competency to know what he/she is doing in making the Will.  In Illinois, testamentary capacity is defined as knowing the “natural objects of your bounty” (your heirs at law), and knowing the nature and extent of your estate (property).  If an individual is unable to evidence that he/she knows one or both of these items, he/she does not have testamentary capacity.


A Sample Will Contest Scenario


By way of illustration, let’s look at a fact pattern and sample arguments from a fictionalized Will contest scenario.  In this scenario (taken from an actual Will contest case in Illinois), Jane and John Doe are the two children of the Decedent.  Jane is alleging that John unduly influenced the Decedent into making a Will to benefit only him.  Jane is also alleging that the Decedent did not have the necessary mental capacity to make a Will.  Here is an example of the arguments that Jane would make based on the facts stated below:




1.  The Decedent died on _______________ at the age of 80.  She was survived by her two children, namely Jane Doe and John Doe.  

2.  On _______________, the Decedent executed her declaration of trust (copy attached as Exhibit A), which left her property equally to Jane and John.  This Trust has never been revoked. 

3. On _______________, the Decedent, as Trustee of the Trust conveyed real property located at 123 Main Street, Anytown, Illinois, into the Trust by signing a Deed in Trust (copy attached as Exhibit B). 

4. On _______________, Jane Doe filed a Petition for Appointment of Guardian for Disabled Person because the Decedent’s medical doctors agreed that she needed extensive care and should not live alone.  Guardianship proceedings were pending at the time of the Decedent’s death. 

5.  On _______________, the Honorable Court admitted a document purporting to be the last Will of the Decedent, dated _______________ (several years after the Trust was executed), and appointed John Doe as Independent Executor.  

6.  Jane had always had a good relationship with the Decedent.  Since moving out of the Decedent’s house in _______________, Jane visited the Decedent once a week.  She spent numerous hours and thousands of dollars improving the Decedent’s house and garden.  Jane specifically redid the Decedent’s bedroom and bathroom.  

7. In _______________, Jane became more involved in taking care of the Decedent as the Decedent’s physical and mental health significantly declined.  Jane began to take the Decedent to her doctor’s visits and hospital tests; she cooked for her; and she would regularly do the Decedent’s laundry.  Later on, Jane started paying the Decedent’s bills out of the Decedent’s account.  The Decedent’s health ultimately declined to a point when it became evident that she required daily personal care.   

8.  In the Physician’s Report by Bob Smith, M.D. (copy attached as Exhibit C), three months prior to when the purported Will was signed, Dr. Smith states:  “Because of memory and higher cognitive deficits and lack of self-awareness, I think the Decedent is not capable of making important financial or living situation decisions for herself.” 

9.  In the Physician’s Report by Susie Jones, M.D. (copy attached as Exhibit D), two months prior to when the purported Will was signed, Dr. Jones states:  “The Decedent is totally incapable of making personal and financial decisions for herself.” 

10. Pursuant to the GAL Report (copy attached as Exhibit E), the Decedent made several illogical and incorrect statements.  First of all, the Decedent stated that Jane had “been to her [Decedent’s] house only once in 10 years”.  Report of Guardian Ad Litem, pg. 2.   As previously stated, Jane visited the Decedent weekly for the past 12 years.  She had done numerous things for the Decedent, including redoing her bedroom and bathroom.  Secondly, the Decedent “said she did not remember having Jane’s name on the checks or allowing her to write checks on the account.”  Id. at pg. 3.  However, Jane’s name had been on her checks for at least five years.  Finally, the Decedent told the GAL that John had taken her to see an attorney just one month prior to signing the purported Will, “though she did not seem sure as to why they went to see the attorney.”  Id. 

11. As the Decedent’s mental and physical health declined, John Doe became more manipulative in his interactions with the Decedent and with Jane.  Upon information and belief, John added his name to the Decedent’s bank account within the last five years.  In _______________, John declared that he was going to sell the Decedent’s house, and take all of the Decedent’s assets.   

12. Shortly thereafter, when the GAL went to interview the Decedent at her home, John was there to answer the door.  He “explained that he had just arrived in town that afternoon”.  Also, John told the GAL that he was concerned about Jane having access to the Decedent’s checking account.           

13. One week later, John Doe took the Decedent to the law firm of Dewey, Cheatum, and Howe, the same firm that now represents John Doe, where they drafted a new Will for the Decedent leaving the entire estate to John, as well as naming John as the independent executor.  This Will was drafted only two months after the Decedent’s own doctor stated that she was “totally incapable of making personal and financial decisions for herself.”     

14. The principal asset in the Decedent’s Estate is real property located at 123 Main Street, Anytown, Illinois. 


Jane Doe formally contests the validity of the Will on the grounds that the Decedent was subjected to undue influence by John Doe and that the Decedent lacked testamentary capacity.  Jane Doe contends that the Decedent’s advanced age, illness and dependence on John Doe kept her from fully understanding the effects of the Will and made her unable to be aware of and/or resist the undue influence by him.   





A party contesting a Will and asserting that a Will was executed as a result of undue influence, must establish the existence of the following elements:  1) a fiduciary relationship between the testator and a person who receives a substantial benefit under the Will; 2) a testator who was in a dependent situation in which the substantial beneficiaries were in dominant roles; 3) a testator who reposed trust and confidence in such beneficiaries; and 4) a Will prepared or procured and executed in circumstances wherein such beneficiaries were instrumental or participated.  In Re Estate of Berry, 277 Ill. App. 3d 1088, 661 N.E.2d 1150 (1996). 


A Fiduciary Relationship Existed Between the Decedent and John Doe, Who is the Sole Beneficiary Under the Will.


For the purposes of undue influence, a fiduciary relationship may exist as a matter of law, like an attorney-client relationship, yet it may also exist between a parent and child where there is a confidence reposed on one side and resulting superiority and influence on the other side.  Pepe v. Caputo, 408 Ill. 321, 97 N.E.2d 260, 263 (1953).  The origin of the relationship is immaterial and may be legal, moral, social, domestic, or merely personal.  In Re Estate of William Roeseler, 287 Ill. App. 3d 1003, 679 N.E. 2d 393 (1997).  Factors to consider in determining whether a fiduciary relationship in fact existed include the degree of kinship, disparity in age, health, mental condition, education and the extent to which the servient party entrusted the handling of his affairs to the dominant party.  In Re Estate of Maher, 237 Ill. App. 3d 1013, 606 N.E. 2d 46 (1992).  


In this case, several factors establish the existence of a fiduciary relationship requiring a scrupulous duty of good faith and candor on the part of John Doe in caring for the Decedent.  First, there was a close degree of kinship, as John was the son of the Decedent.  Second, the Decedent suffered from declining mental health.  Third, John held joint accounts with the Decedent.  Thus, the facts demonstrate that John’s position was that of the Decedent’s fiduciary because there existed a relationship of trust and confidence between them.  However, John Doe misused his fiduciary position to unduly influence the Decedent to disinherit Jane in favor of himself.  


The Decedent was in a Dependent Situation, and John Doe was in a Position to Dominate and Control the Decedent.


Undue influence in a Will contest must contain a specific recital of the manner in which the free will of the testator was impaired at the time the instrument was executed.  Sterling v. Kramer, 15 Ill. App. 2d 230, 145 N.E. 2d 757 (1957).   


The facts cited above provide specific details on how John Doe was able to impair the Decedent’s free will.  By isolating the Decedent from Jane in the last few months of the Decedent’s life, and by rendering the Decedent completely dependent on him, John was able to convince the elderly, mentally impaired Decedent that Jane no longer cared for her and that Jane was only after her money.  This distorted picture of reality was imposed upon the Decedent by John when she was in a dependent situation at a time when he was in a position to dominate and control the Decedent. 


In the GAL Report, John answered the door and explained that he had “just arrived that afternoon”.  He was always in a position to dominate the situation when important decisions needed to be made regarding the Decedent’s personal affairs.  In addition, John lied to the GAL by telling her that he had purchased items for the Decedent that Jane had purchased for the Decedent several months earlier. 


Later in the report, the Decedent told the GAL that it was John’s idea that she retire from her job.  Again, he wanted complete control to dictate to the Decedent how her important decisions were to be made.  He even began to express concerns about Jane having access to the Decedent’s checking account.  


The Decedent Reposed Trust and Confidence in John Doe.


Undue influence is a species of fraud.  Flanigon v. Smith, 337 Ill. 572, 577, 169 N.E. 767 (1929).  The facts reveal that the Decedent was an elderly woman in poor health who needed significant attention and care.  The Decedent placed trust and confidence in John Doe to provide for her needs.  This trust and confidence was fraudulently violated as John first attempted to estrange the Decedent from Jane, and then convinced the Decedent to leave him her entire estate.    


John Doe Was Instrumental in the Procurement of the Decedent’s Will.


           The facts clearly show that John Doe was preoccupied with controlling the Decedent’s personal and financial affairs to the exclusion of Jane Doe.  John Doe took the Decedent to the estate planning attorneys to change her Will to leave her estate to him, just two months after the Decedent’s doctor stated that she was “totally incapable of making personal and financial decisions for herself.”  These circumstances support a finding that John Doe was instrumental in procuring the Decedent’s Will.  He took advantage of his elderly mother, who was in a position to be manipulated due to her poor health and advanced age.   


WHEREFORE, JANE DOE prays that this Honorable Court enter an order granting the following relief: 

  1. Declaring that John Doe, the Respondent, exerted undue influence over the Decedent, in procuring her Will; 
  1. Declaring the Will of the Decedent null and void; 
  1. Declaring the Trust to be the controlling legal mechanism to administer the Decedent’s property; 
  1. Appointing Jane Doe as intestate independent administrator of the Estate of the Decedent pending a determination on the existence of any prior Will of the Decedent; 
  1. Awarding damages against John Doe for all losses, costs, attorney’s fees, and related items incurred by Jane Doe and the Estate of the Decedent in pursuing this lawsuit; 
  1. Any other relief that this Court deems just and proper, including punitive damages. 





The Illinois Probate Act provides that “Every person who has attained the age of 18 years and is of sound mind and memory has power to bequeath by will the real and personal estate which he has at the time of his death.”  755 ILCS 5/4-1.  Testamentary capacity is “the ability to know and understand the natural objects of one’s bounty and nature and extent of one’s property” and to form a plan to dispose of the property.  Frazier v. Atwood State Bank, 159 Ill. App. 3d 377, 512 N.E. 2d 1050 (1987).  The facts and evidence demonstrate that the Decedent lacked this requisite understanding.  


The Decedent suffered from physical and mental ailments as indicated in the Facts section above.  Her advanced age, poor health, diminished mental abilities and John Doe’s undue influence converged to destroy the Decedent’s testamentary capacity at the time she executed her Will.  In fact, two medical doctors concurred that the Decedent did not have the requisite mental capacity to make important financial or personal decisions.  In particular, Dr. Jones stated that she was “totally incapable of making personal and financial decisions for herself.”  [emphasis supplied]  Both of the physicians reporting on the Decedent’s health just months before she executed her Will agreed that the Decedent lacked the necessary memory to make decisions.  The Decedent’s memory and lack of self-awareness destroyed her ability to make well-reasoned decisions regarding one of the most important issues of her late life, the planning of her estate disposition.  


As further proof of the Decedent’s confusion and lack of mental capacity, the Decedent made several incorrect statements to the GAL.  She stated that Jane had only come to see her once in the past ten years, that she couldn’t remember having Jane’s name on her checks, and that she could not even remember why she had been to an attorney’s office just a month prior to signing the Will at issue.  As stated in the Facts section, Jane visited her mother weekly for the past twelve years, and had had her name on the Decedent’s checks for several years prior to the GAL report.  The Decedent, just a week before signing her Will, clearly had suffered a profound memory loss and was thoroughly confused about her present state of affairs.  However, the GAL reached a contrary conclusion after her interview with the Decedent.  This conclusion is understandable since Dr. Smith states that the Decedent “interacts socially beautifully on a surface level, but has minimal knowledge of current events or content in her speech.  She does not have adequate awareness of her physical and cognitive deficits.”  In addition, the GAL clearly had incorrect information regarding the statements made by the Decedent in the interview.  All of the illogical statements made to the GAL, along with the doctors’ reports and other medical evidence, establish that the Decedent did not have the basic mental capacity necessary to plan a proper disposition of her property under Illinois law. 


It is not necessary that the Petitioner pleads specifically the particular kind of unsoundness of mind or the cause of the mental unsoundness, since these are matters of evidence and need not be alleged.  Anlicker v. Brethorst, 329 Ill. 11, 160 N.E. 197 (1928) and American Bible Society v. Price, 115 Ill. 623, 635-36, 5 N.E. 126 (1886). 


WHEREFORE, JANE DOE prays that this Honorable Court enter an order granting the following relief: 

         1)   Declaring that the Decedent did not possess the requisite testamentary capacity to execute her Will; 

           2)   Declaring the Will of the Decedent null and void; 

       3)  Declaring the Trust to be the controlling legal mechanism to administer the Decedent’s property; 

     4) Appointing Jane Doe as intestate independent administrator of the Estate of the Decedent pending a determination on the existence of any prior Will; 

           5)   Awarding damages against John Doe for all losses, costs, attorney’s fees, and related items incurred by Jane Doe and the Estate of the Decedent in pursuing this lawsuit; 

            6)  Any other relief that this Court deems just and proper, including punitive damages. 


As can be seen by this scenario, a Will contest is only reasonable to consider if there is clear evidence to present a challenge to the Will.  A suspicious fact pattern alone will likely not be enough to overturn a Will due to the strong presumption in Illinois that Wills which appear to be validly made and executed will be upheld, particularly if they were drafted by an attorney.  (Will contests are further complicated by evidentiary hurdles related to the Dead-Man’s Act in Illinois.)  Thus, Will contests must have strong, permissible evidence from witnesses, documentation, etc., to support them in order to be successful.  


Because of the complexity and low success rates in challenging Illinois Wills, the Law Office of Kevin Williams does not represent individuals seeking to challenge a Will in Illinois.  If you are in need of a Will contest attorney, contact your local bar association for a trusted referral.


* The content that is provided on this page is to be used for general information purposes only.  It is not meant to be legal advice and does not establish an attorney-client relationship.


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