Will Contests, Part 1: Formal Proof of Will
Most actions to contest the validity of a Will center on (a) whether the testator (i.e. the person who executed the Will) had the legal capacity to make a valid Will and/or (b) whether the testator was somehow forced (through undue influence) to execute the Will.
However, as a preliminary matter, it may be a good idea to request what's known as "formal proof" of a Will. This is done in accordance with §6-21 of the Illinois Probate Act, which sets forth the criteria for such a request (more on that in a minute).
At issue is whether the requirements for executing a valid Will in Illinois have been met. These requirements (found in §4-3 of the Illinois Probate Act) state that every Will must be:
(1) in writing (the "writing requirement");
(2) signed by (a) the testator or (b) by some person in the testator's presence and by the testator's direction (the "signature requirement"); and
(3) attested in the presence of the testator by 2 or more credible witnesses (the "witness requirement").
There are a couple things to keep in mind about requesting formal proof of Will:
- The request has to be made within 42 days of the date the Will was originally admitted to probate. (Note that Illinois takes a "shoot first, ask questions later" approach to admitting a Will to probate. That is, a probate court will usually set a initial hearing and rule on the validity of a Will without requiring that so-called "interested persons" be given notice of this hearing. However, the court will require that notice of the proceedings at the hearing be sent to all interested persons, so they can dispute the results.)
- After receiving the request for formal proof of Will, the court will set a new hearing, at which the witnesses to the Will testify about its validity.
It's not that common for a Will to be declared invalid as the result of a formal proof hearing, but the request may be worth a shot. For instance, the testimony of the witnesses might reveal that one or more of them are not credible (for example, what if the spouse of the sole beneficiary was one of the witnesses?), or that the witnesses did not sign the Will in the testator's presence.
