Will Contests – Part 5

Sometimes A Will Contest Is More Than A Will Contest.

Other actions may be joined with a will contest. Section 8-1(f) of the Probate Acts states as follows:

f. An action to set aside or contest the validity of a revocable inter vivos trust agreement or declaration of trust to which a legacy is provided by the settlor’s will which is admitted to Probate shall be commenced within and not after the time to contest the validity of a will as provided in subsection (a) of this Section and Section 13-223 of the Code of Civil Procedure.

In theory, a trust may be challenged in a separate proceeding subject to the shorter limitation period. However, if issues in both contests are the same, they are better combined to avoid duplication of efforts and potentially conflicting results. Where both a will and its related trust are challenged together, the standard of capacity for both challenges is the capacity to execute a will and not the somewhat stricter standard necessary to execute a trust.

Other actions that may be joined with a will contest include breach of fiduciary duty to the decedent and tortious interference with an expectancy, provided that there is a reasonable relationship among the various actions and between the additional actions and the Probate proceedings. Especially where there are similar issues of lack of capacity, undue influence, and breach of fiduciary duty relevant to the contest and to the additional proceedings, it makes sense to try all of the actions together.

Proceeding With The Action

After gathering all the facts you can, it is necessary to prepare the petition. All desired plaintiffs should be so named. The executor and all other interested parties whose shares will be affected by the proceedings should be named as defendants.

The petition to contest the will need not be verified. This is contrary to the rest of the Probate Act, which requires that all petitions in Probate must be verified. There is a practical reason for the difference. Often, the plaintiff in a will contest does not have and cannot get sufficient information on critical facts without first filing the contest. Requiring verification of unknown facts would leave most plaintiffs with an unfair dilemma. Will contests are already difficult enough.

Since August, 1995, no service of Summons is necessary on the interested parties in the estate. The plaintiff must merely mail copies of the petition to the executor’s attorney and to all interested parties. Service of Summons is necessary on defendants who are not interested parties in the estate.

After the will contest is filed, the court is very liberal in allowing amendments to the action, even to the extent of adding parties defendant, adding new actions and theories, and challenging additional documents.

Any party may demand a jury trial on all or some matters. Illinois Pattern Jury Instructions contains a full set of jury instructions for will contests and related matters.

This article will not discuss the will contest proceedings themselves. There is good basic material to be found in many places, including IICLE Contested Estates 1985, Supp. 1987, and IICLE Estate, Trust, and Guardianship Litigation, 2002. Some law and materials in each volume are not included in the other, and it is worthwhile to check out both sources.

Settlement of the case by all plaintiffs ends the litigation in the absence of any valid counterclaims by non-settling parties. Where plaintiff has only a percentage interest in the estate, it may behoove the estate to settle with that plaintiff only instead of “risking” the entire estate. For example, if a plaintiff would receive 25% of an estate, the estate might pay plaintiff his full 25% share and leave the balance of the testamentary plan in place. Instead of paying 100%, the named legatees might only pay 25%.

Practical Note: Orders arising out of Probate proceedings, including orders admitting or denying a will to Probate, are not appealable under SCR 304(a). The proper section is SCR 304(b)(1), which governs appeals from “[a] judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party.”


As with many Probate matters, a will contest is different from other litigation. The Probate Act, case law, presumptions, and more put their usual twists on what you might otherwise expect.


©2005 by Cary A. Lind, all rights reserved