WILL CONTESTS - PART 4

WILL CONTESTS - PART 4

The statute governing will contests is Section 8-1 of the Probate Act. Corresponding provisions regarding denial of admission of a will to Probate are found in Section 8-2. Section 8-1 runs approximately one full column long in print, and a lot of law is crammed into the Section.

Who Can File a Will Contest?

Any "interested person" may file a petition to contest a will. In general, an interested person means anyone whose interest will be affected if the will is successfully challenged. That definition includes at least three categories:

• Heirs at law are always interested parties. Where a will is invalidated, the usual result will be that the estate will be distributed by intestacy. If there were prior wills and a will is successfully challenged, the next prior will will not necessarily be revived. See Estate Department article entitled Two Things We All Should Know.
  
  
• On the other hand, a prior will sometimes is revived. Thus, legatees under prior wills are interested parties if the share of the estate they would take under the prior will is greater than under the will being challenged. This determination is potentially very complex, especially where there is a series of prior wills. See an excellent article in the June, 2005, Illinois State Bar Journal entitled Disappointed Would-Be Legatees: Who Has Standing to Contest a Will?

• The Illinois Attorney General is always an interested party whenever charities are involved and where the bequest to the charity may change if the will is successfully challenged. The Attorney General represents all charities located in Illinois and the People of the State of Illinois generally to see that gifts to charity go where they are supposed to and in the proper amounts.

Notice of the admission of the will to Probate must be given to all parties listed on Schedule A to the Petition for Probate of Will. By definition that includes all legatees under the admitted will, all heirs at law, and the Illinois Attorney General where required.

When Must the Will Contest be Filed?

A will contest must be filed on or before six months after the date the will is admitted to Probate. The time limit is jurisdictional and absolute. It is not tolled for minority of parties, fraud, concealment, lack of discovery of rights, or any of the other usual reasons. If the will contest is filed one court day after six months after admission of the will, it will be dismissed.

The only exception to this limitation period is for parties who were not properly notified of the admission of the will. That description includes omitted or unnotified heirs or legatees.

Because the time limit is jurisdictional, it also prevents any party being added later as a party plaintiff who did not file or join in the filing of a will contest as a plaintiff within the six-month period. If the will is ultimately thrown out, other parties may also gain a benefit, non-plaintiffs have no right to participate in any settlement.

Where is the Contest Filed?

The will contest should be filed in the Probate proceedings or if no administration of the estate is proceeding, in the court where the will was admitted to Probate. In Cook County, a will contest is a supplemental proceeding with the same case number and in the same case as the Probate proceeding.

©2005 by Cary A. Lind, all rights reserved.

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