Substantive Law In Will Contests And Citation Proceedings – Part 1

There are four general theories which can be used to attack wills or trusts or to recover property in Citation proceedings. Some of the subject matter has been dealt with in prior Estate Department articles. See Joint Tenancies – See You In Court, Breach of Fiduciary Duty – Who Do You Trust, Dead-Man’s Act, Hearsay, and Other Dull Subjects, Putting It Together, and Finding and Recovering Assets – Citation Proceedings (two parts). All of the articles can be found at in the section entitled the Estate Department. The articles deal with the substantive and procedural problems that both sides face in those proceedings. There is also a fifth theory that can be used by third parties where a direct attack will not afford them relief. These theories will be discussed in this series of articles.

Remember that the Dead-Man’s Act, the Hearsay Rule, and Illinois law on presumptions are critical in almost all will contests and Citation proceedings and often are decisive. In order for the Dead-Man’s Act to apply, an estate must be a party, so it does not apply to contests of trusts. The Hearsay Rule does apply, but a major exception is for statements which show a party’s state of mind. That is usually the key issue in this kind of case.

Improper Execution Or Lack Of Formalities.

The Probate Act sets out the requirements for valid execution of a will. §4-3 of the Probate Act provides that “[e]very will shall be in writing, signed by the testator or by some person in his presence and by his direction and attested in the presence of the testator by two or more credible witnesses.” If any of those requirements are not met, the will can be invalidated. If the will is prepared by a competent attorney, it will rarely be subject to attack for improper execution. From time to time, however, there are cases that address these issues, especially where the testator is physically incapacitated and must have assistance in signing either his name or by “x.” In any case, requesting formal proof of will pursuant to §6-21 of the Probate Act allows a potential contestant to get a “free” preview of the execution of the will to see if there have been any obvious improprieties in its execution.

Short of having one of the witnesses totally recant his or her signature or the affirmations in the attestation clause, it is almost impossible to invalidate a will on the grounds of improper execution or lack of appropriate formalities. If a witness has no recollection of the circumstances of execution of the will, the attestation clause substitutes for his or her testimony and is virtually ironclad. In effect, the greater the passage of time between the execution of the will and the proof in court and the greater the time in which witnesses can forget, the more unassailable the will becomes. On the other hand, if any witnesses have died, the proponent of the will may be required to prove the deceased witnesses’ signatures, and that may prove more difficult over time.

If the attestation clause is “defective,” what can be done? If the witnesses are alive, you can prepare proper clauses, have them executed by the witnesses, and present them to the court. If not all of the witnesses are alive but if all interested parties consent, the court may still approve the will. If neither of the foregoing alternatives apply, the will is likely invalid and will not be admitted to Probate.

Lack Of Mental Capacity.

Illinois law contains a number of different definitions of mental capacity for a variety of different situations. The Health Care Surrogate Act defines “decisional capacity” as “the ability to understand and appreciate the nature and consequences of a decision regarding medical treatment or forgoing life-sustaining treatment and the ability to reach and communicate an informed decision in the matter as determined by the attending physician.” 755 ILCS 40/10. To execute a valid deed, the grantor must have sufficient mind and memory to comprehend the nature and effect of his act (i.e., that he’s selling or giving away property that he owns) to exercise his own will and cope with his adversary (i.e., the person to whom he’s giving or selling the land), and to protect his interests. Ackerman v. Trosper, 95 Ill. App. 3d 1051 (3rd Dist. 1981). For purposes of guardianship, the statute defines a disabled person as “someone who is because of mental deterioration, physical incapacity, mental illness, or developmental disability” not fully able to manage his person or estate,” or someone who “because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering.” 755 ILCS 5/11a-2. For purposes of capacity to execute a power of attorney, there is no standard set forth in any statute or to the knowledge of the writer in any reported case.

The clearest definition of the requisite mental capacity to execute a will is set forth in Illinois Pattern Jury Instructions – Civil No. 200.05. That definition is as follows:

A person has sufficient mental capacity to make a will if, at the time he executes the document he has:

(1) The ability to know the nature and extent of his property;

(2) The ability to know the natural objects of his bounty; and

(3) The ability to make a disposition of his property in accordance with some plan formed in his mind.

It is not necessary that the person actually know these things. It is necessary only that he have the mental ability to know them.

The definition of capacity to execute, amend, or revoke a trust is not consistant. IICLE Estate, Trust, and Guardianship Litigation states that it has been variously described as follows:

  1. the ability to transact ordinary business (Ring v. Lawless, 190 Ill. 520, 60 N.E. 881 (1901); Greene v. Maxwell, 251 Ill. 335, 96 N.E. 227 (1911));
  2. the ability to understand, in a reasonable manner, the nature and effect of the act in which he or she is engaged (Jackson v. Pillsbury, 380 Ill. 554, 44 N.E. 2d 537 (1942));
  3. not necessarily whether the settlor was generally of sound mind, but whether he or she had sufficient mental capacity to understand the trust that he or she executed (Coffey v. Coffey, 179 Ill. 283, 53 N.E. 590 (1899)); and
  4. the ability to understand the trust; however, this does not require “that a person setting up a trust be able to explain every technical term used in the instrument” (Brown v. Commercial National Bank of Peoria, 42 Ill.2d 365, 247 N.E.2d 894, 897 (1969), citing Pernod v. American National Bank & Trust Company of Chicago, 8 Ill.2d 16, 132 N.E.2d 540 (1956)).

The law presumes individuals to be competent. The burden of proof on the issue of capacity is on the party contesting the will. The critical moment in time is at the moment the will is executed. Even a person who has been adjudicated mentally disabled can still make a valid will under Illinois law. Estate of Letsche, 73 Ill.App.3d 643, 392 N.E.2d 612, 29 Ill.Dec. 915 (1979). If a person has one lucid interval and in that interval meets the requirements set forth above, the will is a valid will. “Evidence regarding a testator’s capacity must relate to a reasonable period before, during, or after execution of the testamentary document. Such evidence is competent so long as it tends to show the testator’s mental condition at the time of execution,” Estate of Wrigley, 104 Ill.App.3d 1008, 433 N.E.2d 995,60 Ill.Dec. 757 (1982). What is a “reasonable period” can vary dramatically and may be over a year in appropriate cases. Testimony, expert and/or lay, is critical in proving lack of capacity. As in the case of a claim of improper execution, if the will is drawn by an attorney, the attorney and the witnesses will almost certainly affirm their belief that the testator had the requisite capacity at the time of execution, and short of strong evidence to the contrary, that testimony will prevail.

Finally, if a will and trust are contested together, the standard to be used to contest both is the standard for execution of a will. Illinois courts apply the lesser standard of testamentary capacity when evaluating the validity of a trust or transfers of property in trust that are essentially testamentary in nature, usually meaning transfers with a reserved life estate. Kelley v. First State Bank of Princeton, 36 Ill.Dec. 566 3rd Dist. 1980.

©2005 by Cary A. Lind, all rights reserved