Contesting a Will in Illinois and Will County

The deadline

Section 8-1(a) of the Probate Act says that within 6 months after the admission to probate of a will, any interested person may file a petition to contest its validity. The petition goes in the estate proceeding if one is open. If none is pending, it goes to the court where the will was admitted.

Write the date the will was admitted at the top of your calendar. The window runs from that order, not from the date of death and not from the date a letter reached you. The statute also says that failing to mail or deliver a copy of the petition to an heir or legatee does not extend the time to file (8-1(b)).

Who can contest

The statute uses the words "any interested person." It does not give a list. The right to start or continue a contest also passes to an heir, legatee, representative, grantee or assignee of the person who held it (8-1(d)). Whether someone counts as an interested person in your situation is something to ask a lawyer before the clock gets short.

What a court looks at

A will is admitted when two witnesses to the signing state that they saw the testator sign or acknowledge the will, that they signed in the testator's presence, and that they believed the testator was of sound mind and memory (755 ILCS 5/6-4). The statute also says admission can be undone by proof of fraud, forgery, compulsion or other improper conduct that the court finds enough to invalidate the will. Those words give you a sense of the kinds of facts that matter.

In the contest, the court frames one issue: whether the paper is the will of the testator. The contestant goes first and must prove the will invalid. The proponent then may present evidence to support it. Either side can demand a jury trial (8-1(c)).

How the case runs

1. File the petition. Within the six month window, in the estate case.
2. Send copies. The petitioner mails or delivers a copy to the representative, the representative's attorney of record, and each heir and legatee named in the petition to admit the will (8-1(b)).
3. The representative defends. It is the representative's duty to defend the contest. If the representative refuses, or no one is acting, the court may name a special administrator to defend or appeal (8-1(e)).
4. Trial or settlement. The court hears the issue, with a jury if one is demanded.

Will County lists a $60.00 fee for a will contest after the estate is opened. A jury demand in a probate case has its own fee, shown on the clerk's schedule.

Related deadlines people mix up

• Formal proof of the will. A person entitled to notice may ask within 42 days after the order admitting the will for the proponent to prove the will with witness testimony (5/6-21). That request does not extend the six months if the order is confirmed.
• A will denied admission. An interested person has 6 months from the order to petition to admit it (5/8-2).
• A missed mailing. If your petition is filed on time but a copy to an heir is missed, fix the mailing quickly. The statute says only that the missed mailing does not extend your time to file (8-1(b)).
• A trust the will pours into. A challenge to a revocable trust that receives a legacy under an admitted will must be started within the will contest time (5/8-1(f)). More in 760 ILCS 3/604, covered on trust administration.

Keep each date on one list: the admission order, the 42 day mark and the six month mark.

Before you decide

Either way, collect the will, the court's order admitting it, the names and addresses of the heirs, and any earlier wills you know about. A contest changes the length and cost of an estate, which is why it matters to see the dates on a calendar early. Read about how long probate takes and the Will County probate process. To avoid a fight later, a clear plan helps: see wills. Jeff can read the order and tell you whether the window is still open.

Reviewed by Jeff McCarthy, Attorney, Inspired Law Group, 136 E 9th St, Lockport, IL 60441.