Learning how probate litigation works with wills

March 24, 2017
By: John J. Pembroke

Is it possible for you to challenge a will? Trying to work through probate litigation is a challenging situation, largely because wills are seen as the “voice” of the testator, or person who has died. The will “speaks” for the decedent, so most courts in Illinois and other states tend to hold the will and other estate documents in high regard. Here are a few tips if you decide that you think it is appropriate to challenge an estate plan.

In general, the most successful challenges come from spouses of the testators, and these challenges often relate to the fact that the spouse did not have full testamentary “capacity.” What is testamentary capacity? Most adults age 18 or over have the full ability to decide about the future of their personal property. However, those adults who are suffering from senility, dementia, insanity or substance abuse may not have the full legal capacity to enter into contracts or create an estate plan.

In order to have testamentary capacity, the person must understand the value of one’s own property and the nature of the holdings. The testator must also understand his or her relationships to the beneficiaries and must be aware of the meaning of a will – that is, that it will lead to distribution of property. The author of the will must also generally adhere to requirements associated with having witnesses present at the signing of the will, along with other administrative rules.

So, how could you successfully challenge a will? If you possess a will that is newer than the one that is trying to be executed, then you may have a chance to challenge. If the will contains illegal provisions, it may not be considered a valid will. Attorneys can help you learn more about your legal rights and options when it comes to challenging a will in probate court.

Source: FindLaw, “Reasons to Challenge a Will,” accessed March 17, 2017