Northwest Suburban Contested Estates Lawyers
Our Probate and Contested Estates Attorneys Can Help You with Will Contests, Trust Contests and Estate Litigation.
There are various ways to contest or challenge a deceased person’s will or trust. Charles T. Newland & Associates has the experienced probate attorneys that know how to litigate and assist you in challenging an estate document or defending the document if you are an executor, guardian or trustee.
Improper Execution
Challenging a Will on execution means that you believe the Will was not signed properly by the testator (maker of the will) or the witnesses. This could be due to forgery of the signatures of the testator or witnesses, lacking the required number of witnesses present at signing or the Will does not contain the appropriate attestation clause. Strict compliance with the Illinois Probate Act is required for the proper execution of a Will. A trust may be challenged for improper execution but there is no witness requirement for a trust. There are two stages in probate where you can attack the execution of the Will. The first time is when you demand a formal proof of Will and the second way is to file an actual Will Contest based on improper execution. There are very strict deadlines for the filing of each proceeding so if you believe you have a basis to challenge a Will you should contact an experienced probate attorney as soon as possible.
Mental Capacity
Challenging a Will based on the lack of testamentary capacity of the testator means that you do not believe he or she was of sound mind at the time the Will was executed. The lack of capacity may be due to dementia, injury or illness. It is important to note that the threshold for determining capacity is rather low. The maker of the Will only needs to know the “natural objects of his bounty”, meaning the closest living relatives such as children and spouse and have a general idea of the nature and extent of the property he owns. In order to challenge the Will or Trust based on lack of capacity it is necessary to have medical evidence of the person’s condition at the time the document was signed. It is possible for a person to be suffering from dementia to have proper capacity at the time the document was executed, so medical records and independent witnesses are crucial in proving such cases. Call Charles T. Newland & Associates to speak with an experienced probate lawyer regarding questions concerning testamentary capacity.
Undue Influence
When contesting estate documents based on undue influence, it necessary to have witnesses to the relationship that existed between the testator or settler of the trust and the party being accused of exerting the influence. When the person accused of exerting the undue influence for his or her own benefit was also a trusted fiduciary under a power of attorney or a personal caregiver of the maker of the document, the law will recognize a presumption of undue influence and shift the burden of proof to the person alleged to have exerted the influence to prove that no such influence was implemented in creating the document. Undue influence can be exerted in many ways including such actions like physical or mental duress or coercion, threats of bodily harm, withholding of necessary care, isolation from others, and statements made to the testator that disparage the character of other family members. Call Charles T. Newland & Associates to speak with an experienced probate attorney if you believe a loved one was the victim of undue influence.
Voiding Documents
If estate planning documents such as a Will or Living Trust are prepared by a non-attorney or if the documents used to transfer assets to a Living Trust are prepared by a non-attorney, it is possible to void the document prepared or void the transfer of the asset to the Living Trust under a provision of the Illinois Consumer Fraud Act. If this is the case it is not necessary to prove improper execution, lack of mental capacity or even undue influence to have the particular document or transaction declared void. Call Charles T. Newland & Associates at 847.797.9300 if you suspect the estate planning documents or the preparation of documents transferring assets to a Living Trust of a loved one were prepared by a non-attorney.
Estate and Trust Litigation
In addition to contesting the estate documents themselves, frequently, the documents are fine but the executor, guardian in a disabled person’s estate or minor’s estate, or successor trustee of a person’s living trust are accused of administering the estate or trust improperly. This can lead to estate and trust litigation involving lawsuits to seek removal of the executor, guardian or trustee, the filing of accountings to make the executor or trustee disclose the receipts and disbursements of the estate or trust, claims for breaching fiduciary duties and even claims to surcharge the executor, guardian or trustee for improper administration.
Whether you are prosecuting or defending claims related to estate and trust litigation, Charles T. Newland & Associates has the experience and know-how probate attorneys to assist you every step of the way. We understand that these matters are sensitive and emotional because they involve family disputes. It is important to have experienced and objective legal counsel to let you know the pluses and minuses of these types of proceedings. Contact us today at 847.797.9300.
