Introduction

Creating a will is an essential part of estate planning, ensuring that an individual’s assets are distributed according to their wishes. In Illinois, the legal framework surrounding wills is governed by the Illinois Probate Act of 1975 and various judicial precedents. This article outlines the key requirements for drafting a valid will, how a will is admitted to probate, the process of contesting a will, and the circumstances under which a will may be revoked.

Requirements for a Valid Will in Illinois

For a will to be legally valid in Illinois, it must meet the following conditions as outlined in the Illinois Probate Act of 1975:

The will must be in writing.

It must be signed by the testator (the person making the will) or by someone in their presence and at their direction.

The will must be attested by two or more credible witnesses who were present when the testator signed or acknowledged the will.

Legal precedent further affirms these requirements. Courts have upheld that a will is sufficiently proved if two attesting witnesses confirm:

They were present when the testator signed or acknowledged the will.

They signed the will as witnesses in the testator’s presence.

They believed the testator was of sound mind and memory at the time of execution (McGee v. Nicola (In re Estate of Nicola), 275 Ill. App. 3d 497; Stone v. Stone, 281 Ill. 474).

Admission of a Will to Probate. Probate is the legal process through which a will is validated and executed. A will must be admitted to probate if:

The proponent (the person presenting the will) establishes its validity with competent evidence.

There is no proof of fraud, forgery, compulsion, or other improper conduct that would invalidate the will (§ 11:26. Admission or denial of will to probate; In re Estate of Davison, 119 Ill. App. 2d 477).

Additionally, the proponent must demonstrate that the will was not revoked at the time of the testator’s death (Frakes v. Thieme (In re Estate of Frakes), 2020 IL App (3d) 180649).

Contesting a Will in Illinois

Under Illinois law, a will can be contested under specific conditions:

A petition to contest must be filed within six months after the will is admitted to probate (Burdi v. McCurdy (In re Estate of Kazorow), 2023 IL App (1st) 220938).

Only an interested party (someone who would benefit from or be harmed by the will) may file a challenge.

Grounds for Contesting a Will

A will may be contested based on:

Fraud – If the testator was misled about the contents of the will.

Lack of testamentary capacity – If the testator was not of sound mind when signing the will.

Undue influence – If someone exerted excessive pressure on the testator.

Revocation – If there is proof the will was legally revoked.

Ignorance of contents – If the testator did not understand or approve the will (Elias v. McDonnell (Estate of Elias), 408 Ill. App. 3d 301; Blaylock v. Papacio (In re Estate of Klanyac), 2012 Ill. App. Unpub. LEXIS 590).

Revocation of a Will in Illinois

A will can be revoked under various circumstances, including:

Marriage of the Testator – Illinois law assumes that if a testator marries after making a will, the will is revoked unless there is explicit evidence to the contrary (In re Estate of Day, 7 Ill. 2d 348; In re Estate of Kent, 4 Ill. 2d 81).

Physical Revocation – The testator may revoke the will by physically destroying it or by drafting a new will that explicitly revokes the previous one.

Legal Revocation – A court may invalidate a will if there is sufficient legal reason.

Illinois courts have consistently held that, in the absence of a clear contrary intention in the will, a subsequent marriage revokes the will (Sternberg v. St. Louis Union Trust Co., 394 Ill. 452; Kuhn v. Bartels, 374 Ill. 231).

Conclusion

Drafting a will in Illinois requires strict compliance with legal standards to ensure its validity. The will must be in writing, properly signed, and attested by witnesses. For a will to be executed, it must be admitted to probate, free of fraud or improper conduct. If contested, the challenge must be filed within six months on specific legal grounds. Finally, a will may be revoked through marriage, destruction, or by drafting a new will.

Understanding these legal principles ensures that your estate planning is solid and aligned with Illinois law. If you have questions about wills or estate planning, contact Khatib Law LLC for expert legal guidance.