One of the common reasons for will contests is that an interested party will claim that the testator did not have the mental capacity to sign the will. This launches an inquiry into what their mental state was at the time. Testamentary capacity in Illinois involves the following.
- Knowledge of the extent and nature of their property
- Their relationship to those who would claim substantial benefits
- The ability to make a disposition of their property according to a plan in their mind
Families Can Fight Over Wills
The third part of that test will be the one that families fight about in a will contest. A person challenging the will must go back in time to when it was signed to prove the testator’s lack of capacity. If the person was diagnosed with dementia after they signed the will, it is not evidence that could overturn the will. Essentially, you would need to prove that the testator could not understand what they were doing at the time. They could use the following evidence to prove their claims:
- Medical record from the time that the will was signed
- Witness testimony from people who were around the testator
- Expert witnesses who could discuss their state and analyze their records
Once the will has been executed, there is a presumption that the testator had the proper capacity, and the burden of proof would be on someone challenging the will to disprove that. Therefore, this is not always an easy challenge to win. However, if you have concerns, you should discuss them with a probate litigation attorney.
Speak with Liberty and Rolling Meadows Will Contest Lawyers
The attorneys at Charles T. Newland & Associates help interested parties during will contests. Call us today at 847.797.9300 or contact us online to learn more about the probate process and how a Rolling Meadows and Liberty will contest attorney can help.
