If you believe that someone you knew had left you a gift upon their death and, after that person dies it appears that his or her last will and testament or trust disinherited you or did not leave that which you believe was promised to you, you may have a right to contest that person's will or trust. In Illinois, a potential will or trust contest must be instituted within 6 months of that person's will being admitted to probate. In order to prevail in a contest, a contestant must allege and prove, by clear and convincing evidence, a recognized cause of action. In Illinois, any person is free to disinherit anyone including a spouse or children - it is not enough to allege that you were disinherited. Some of the recognized causes are:

Lack of Capacity. To prevail, one must allege and prove that the deceased person lacked the mental capacity to understand who the natural objects of his or her bounty are. Generally, the capacity to execute a will is a lower standard than alleging that someone lacked the legal capacity to enter into a contract - even a legally declared mentally disabled person could, under appropriate factual scenarios, have the requisite capacity to execute an estate plan. The lack of capacity must be proved as of the date that person signed whatever document is being contested.

Undue Influence. When someone exerts such influence over another that causes him or her to execute documents they otherwise would not have executed and that person profits from the alleged influence, an action to contest a document could be maintained.

Duress. If a person is under such duress that they sign something they otherwise would not have, an action to set aside the document could possibly be maintained.

Forgery. If a person can allege and prove that the signature of the deceased person was forged, an action to set aside the document could be maintained.

Any "interested" person can institute an action to contest a will or a trust. This could mean an heir (an heir is defined by law and is not necessarily a "taker" under a will), a creditor or someone who may have an interest under a prior document (if a will is successfully set aside, any prior will could then be admitted to probate).

Within probate administration, there could be litigation other than to set a document aside. Often we see an estate executor or administrator who fails to bring all assets into the estate that should rightfully be part of a probate estate. Any interested person can seek to bring such assets in through a "Citation" proceeding. Additionally, under Illinois law, for example, a "joint tenancy" asset could be brought back into the probate estate if it can be shown that the joint tenancy was set up by the deceased person for "convenience only" - that such joint tenancy was not a "true joint tenancy".

We can also help to see that the executor or administrator has properly accounted for all assets subject to probate and that all expenses and fees paid or to be paid are proper. For additional information or to discuss a specific matter, please contact us.