Losing a loved one is never easy. The process of settling an estate should bring closure, but when challenges to the validity of a will arise, families can be faced with uncertainty, conflict and a legal process that can quickly become overwhelming.
Whether you are contesting a will as a beneficiary or defending a will as an executor, seeking expert legal advice for will disputes early is essential. Strong guidance early on can help clarify your options, build a stronger case, and protect your loved one’s final wishes, or challenge them effectively when something doesn’t feel right.
Hays Firm is a trusted probate and estate law firm, serving families throughout Chicago and Cook County since 2008. Our team specializes in guiding families through both sides of the estate conflict, including how to handle a contested will, the steps to take when a will is contested and the broader legal process for contesting a will.
Today, we’ll cover:
- Common legal grounds for contesting a will
- How to approach the legal process for contesting a will
- How to defend a will from challenges
- The complexities of contesting a will after probate
- As well as when to bring in a lawyer for contested wills
Common Reasons for Contesting a Will
A will is a legally binding document meant to provide clarity on how someone’s estate should be distributed after their passing. However there are certain situations where a will can be legally challenged. A successful challenge requires evidence-based legal grounds, not emotional reaction alone.
These are the most common reasons families pursue contesting a will:
Lack of Testamentary Capacity
For a will to hold up in probate, the testator (the person who creates the will) must have had the mental ability to understand the document they were signing and how it impacted their estate. If evidence shows they lacked the cognitive capacity to understand the implications of the will, the will can be contested in probate court.
Undue Influence
Undue influence occurs when someone pressures or manipulates the testator into changing their will to gain an unfair advantage. Red flags include sudden changes late in the testator’s life, such as unexpectedly giving a majority of assets to one heir, while cutting out others. This is one of the most frequent reasons for contesting a will.
Fraud or Forgery
Some wills contain forged signatures, fabricated provisions, or other fraudulent elements that misrepresent the testator’s true intentions. The deceased may have also been tricked or deceived into signing a document they believed was something else. Proving fraud typically requires clear documentation or forensic evidence, such as handwriting analysis and expert testimony.
Disinheritance
While choosing to exclude an heir is not illegal, disinheriting someone previously in a will is a frequent cause of legal challenges. Challenges also occur often when heirs feel they did not receive an appropriate amount compared to other heirs—but feeling left out is not reason enough alone. There must be proof that disinheritance came from a lack of capacity, fraud, or outside pressure.
Improper Execution
Under the Illinois Probate Act, for a will to be considered legally valid it must be presented in writing, and signed by the testator in front of at least two witnesses. If those requirements are not met, the will may be contested and possibly addressed in probate litigation.
Multiple Differing Wills
When several versions of a will exist with conflicting distributions, Illinois probate generally considers the most recently created will to be valid. However, competing documents often require litigation to determine which version reflects the testator’s legitimate final will.
What Happens If a Will is Contested
Many families ask “what happens if a will is contested? While each case is different, there are several general stages and outcomes that occur in civil probate court.
- The court determines whether the person contesting the will has standing, that they are financially or directly affected by the outcome
- Both sides exchange evidence during discovery, such as medical records, witness statements, communications, and expert testimony
- The court may recommend that mediation between the parties come next, before escalating to litigation
- If no resolution is reached, hearings are held to determine if the claim is legitimate, and if there is sufficient evidence to move the case to trial
- A trial will decide if the will is upheld, amended, or invalidated in whole or in part
- Depending on the final ruling, estate distributions may change
- Either side may appeal the decision if they believe the facts or law were misinterpreted.
Families tend to underestimate the stress and complexity of the legal process for contesting a will, which is why retaining the right lawyer for contested wills is a major advantage.
The Legal Process for Contesting a Will
The state of Illinois has a strict timeline for contesting a will. All will contests must be made within six months of the will being admitted to probate.
These are the steps needed to contest a will:
- Confirm you have standing: Not everyone can challenge a will. A petition to challenge must come from someone who has a financial or inheritance interest in the estate. These are typically the named heirs and beneficiaries, or someone who would be impacted if the will were invalidated.
- Review the will and identify legal grounds: There must be a valid reason for challenging the will, such as undue influence, fraud or forgery, or improper execution. Obtaining legal advice for will disputes is essential here, as challenges filed without proper grounds are quickly dismissed.
- File a petition in court: In Illinois, petitions are filed in probate or the probate division of the circuit court. The most common filings include:
- Petition for contesting a will
- Objection to the document’s validity during probate
- Petition to invalidate the will, in part, or altogether
- The discovery process: After filing, both sides have an opportunity to gather and exchange evidence such as medical records, psychological evaluations, witness depositions, communications with the testator around their intent, and even expert testimony. In court, the burden of proof always falls on the person challenging the will.
- Mediation or settlement: The court typically encourages mediation before trial. This is an ideal outcome, if possible, settling outside of court avoids the cost, time, and public nature of a courtroom trial. Mediation or settlement outcomes can include:
- Upholding the current will
- Reinstating a prior valid version
- Negotiating a new distribution of assets without a trial ruling
- Probate hearings: If mediation fails, hearings begin. A judge may:
- Rule on specific objections
- Require more evidence be presented
- Or decide if the case moves to trial.
- Trial: If the case persists, the next step is full litigation. Here, the probate judge will decide:
- Whether the will is valid
- If the testator had capacity
- If undue influence or fraud was used
- Whether the will was properly executed
Based on the judge’s ruling, the will may be fully invalidated, have only a portion struck down, reinstate a prior valid will, or uphold the current will and dismiss the challenge.
- Appeal if needed: Either side may appeal the court’s ruling if they believe the court misinterpreted the facts or law.
Contesting a Will After Probate
In most cases, the estate is legally considered final once probate closes. However there are some certain circumstances when contesting a will after probate is allowed.
A challenge can still be filed when there is a valid legal reason such as:
- Late fraud discovery
- Proof of interference in the signing of the will
- Newer will drafts found after probate
- Failure of the executor to fulfill estate duties properly
Contesting a will after probate is challenging. It may require the estate to be reopened, and has a higher burden of proof. This typically results in higher legal costs. Evidence may also be harder to obtain and witness recollection fades. Because of this, courts strongly tend to favor legal finality.
This makes filing early in the legal process for contesting a will far more likely to lead to a successful challenge.
Defending a Will
If you are the executor of an estate, defending a will against challenges means proving its validity. Here are our recommended steps for how to handle a contested will:
- Hire Legal Help Early: You’ll need professional help from someone experienced in how to handle a contested will, especially someone familiar with defending a will in probate litigation.
- Secure testamentary records: Medical records, physician testimony, and official diagnoses tied to timing are key pieces of evidence that prove the testator was of sound mental capacity when the will was signed.
- Interview witnesses: There must be at least two witnesses to the signing of a will for it to be legal. Their statements can attest help prove that the testator was of sound mind and legally aware when signing the will.
- Consider mediation: Mediation is often the fastest way to settle a contested will. It offers privacy to all parties, reduces conflict, and reduces costs by avoiding litigation.
- Build a defense strategy: If the case proceeds, formal defense focuses on challenging the credibility of claims and exposing evidence gaps or inconsistencies. The key showing the testator was of sound mind and that the signing of the will was legally valid.
- Prepare for court hearings or trial: If negotiation or mediation fails, a probate litigation lawyer can help you develop filings, prepare evidence and devise a courtroom strategy to defend the testator’s intentions.
Why Legal Counsel Matters in Will Disputes
By working with a lawyer for contested wills you can:
- Assess the validity of the case
- Get professional help gathering evidence to support your claim
- Potentially resolve the issue through mediation or negotiation
- Act as a neutral third party that minimizes conflict between family members.
- Receive professional legal representation if the case ultimately proceeds to court
Hays Firm: Experienced Chicago Lawyer for Contested Wills
Whether you’re contesting a will or defending a will, without proper legal guidance the process can take its toll on your family both legally and personally. No matter which side you’re on, getting legal advice for will disputes will give you the best chance at reaching your desired outcome.
Since 2008, Hays Firm has helped clients in Chicago and Cook County navigate the legal process for contesting a will.
Contact Hays Firm today to schedule an initial consultation regarding your case, and let our experienced team help you reach a fair result, while keeping family peace and respecting legacy.
**Disclaimer**
The content of this blog is for general informational purposes only, and does not constitute legal advice. Please consult with a qualified attorney or lawyer for advice specific to your situation.
