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Contesting a Will in Illinois Based on Undue Influence


Illinois law recognizes that individuals may be subject to the undue influence of those around them. When someone is a victim of undue influence, the result is the creation of a will which does not truly reflect their wishes and leaves most or all of their property to an individual who exerted a great deal of control and influence over the decedent at the end of their life. Illinois law provides that those individuals who are improperly excluded from a loved one’s will can challenge the validity of the will based on a claim of undue influence. If you discover that your loved one left behind a will which you believe was the product of someone else’s undue influence over them, you should consult with a qualified estate litigation attorney immediately to discuss contesting the will.

What is an undue influence claim?

In order to invalidate a will on the basis of undue influence, the party challenging the will has the burden of showing that the person benefiting from the will exercised extreme influence over the decedent (or “testator”). This influence must be so extreme that the decedent’s own will was overpowered and the will that the decedent executed disposed of his or her property in such a way that he or she would never have done without the improper influence of the outside individual who benefited from the new will. Under Illinois law, the “influence must operate to destroy the testator’s free will concerning disposition of his or her estate and cause the testator to dispose of his or her property according to the plan of another person.”

Undue influence claim against a fiduciary.

If a party challenging a will is able to show that a fiduciary relationship existed between the testator and the person alleged to have exerted undue influence over the testator, there is a presumption of undue influence. This is a very important point. The presumption of undue influence then shifts the burden onto the defendant to rebut the presumption that they exerted undue influence over the testator.

In order to raise a presumption of undue influence, the party challenging the will must show that a fiduciary relationship existed between the testator and a person who substantially benefited under the will, that the person who benefited under the will was in a position to dominate and control the testator, and that the person who benefited from the will was instrumental or participated in the preparation, procurement, or execution of the will.

A fiduciary relationship may be established either (1) as a matter of law in certain recognized relationships or (2) as a matter of fact.

Fiduciary relationship as a matter of law

As a matter of law, a fiduciary relationship exists between attorney and client, guardian and ward, and trustee and beneficiary. Another common fiduciary relationship as a matter of law is that between an individual and the agent that they named under their power of attorney. In all of these relationships the fiduciary relationship is established by a written document and/or a formal legal relationship.

Fiduciary relationship as a matter of fact

A fiduciary relationship can also exist based on the facts of a particular case. In order to establish a fiduciary relationship as a matter of fact it must be shown that the decedent placed so much trust and confidence in the defendant that the result was that the defendant had superiority and extreme influence over the decedent.

Remember, a valid undue influence claim does not require a finding that a fiduciary relationship existed between the defendant and decedent. However, if such a relationship is established, the case against the defendant is much stronger.


If you believe that you were excluded from a will based on someone’s undue influence exerted over your loved one and would like to discuss your rights and options in challenging a will or making a claim against a decedent’s estate, you need to consult with a qualified estate litigation attorney. The experienced Chicago estate litigation lawyers at Hays Firm LLC have helped many individuals through the process of challenging the will of a loved one and ensuring that their loved one’s true wishes were carried out. Please feel free to contact us anytime to discuss how we can help.