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When a Hazy Mind Leads to Probate Problems

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When a Hazy Mind Leads to Probate Problems

Written by Charles Newland on . Posted in Probate and Estate Planning

hand writing "my last will", probateWhen lack of capacity or undue influence is factors in the creation of a will or trust, there exists the possibility to challenge the document. In Illinois, these constitute grounds to invalidate provisions relating to the disposition of property, financial assets, donations, etc.

Testamentary Capacity in Illinois

Under Illinois statutes, individuals must have proper testamentary capacity to execute a will. This means that the person making the will or trust knows who their loved ones are, the extent of the property they own and the ability to decide who they want to get what upon death at time he or she signs the document. Individuals who are diagnosed with a condition such as Alzheimer’s, Dementia, or other mental illness such as severe depression that leads to significant cognitive impairment at the time a will or trust is created may not have the requisite testamentary capacity to execute estate planning documents.

When contesting a will based on testamentary capacity, it is up to the plaintiff to establish that the individual was mentally incapacitated at the time the trust or will was created or amended. This may be established via medical documentation or testimony from witnesses such as from family members or caregivers.

Undue Influence

Undue influence is hard to define but it generally involves some type of coercion, duress on the person making a will or trust to get him or her to make a bequest or change a current estate plan in a way that he or she would not do if the person was acting of his or her free will. It can also be by attacking the character of someone to the person making the estate plan to get that someone whose character is attacked removed from the will or trust or have their share reduced. Undue influence can include outright threats of assault or harassment. It may also include coercion and forgery of documents that lead the deceased to involuntarily include an individual within their trust or will.

If such actions are suspected, the document can be challenged by the party whose interest was affected by the undue influence. A probate lawyer can establish the proof of a fiduciary relationship between the beneficiary and the testator and the actions that the beneficiary used to gain the testator’s confidence in order to benefit from inclusion in the trust or will and diminish or completely cut out another person. In Illinois, it is necessary to establish these factors in order to prevail in any contest of a will.

Statute of Limitations

Individuals may challenge a will up to 6 months after the admission to probate. Those who may contest the will or trust include all heirs to the estate and their representatives or those who were identified as beneficiaries under the previous document that were removed from the current one. In order to commence proceedings, individuals must be able to demonstrate that they stand to be negatively impacted by the probate of the will or trust.

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