Chicago Lawyers for Estate Litigation for Perceived Inequity

The strain of losing a loved one can sometimes bring out the worst in people. Long-simmering frustrations, old resentments, or new disagreements can arise at a time when emotions are running high. Even when the decedent has tried to make everything run smoothly by having a will or a trust already in place, heirs or relatives can challenge it—“contest” the will in legal terms.

Although it might seem that a will or trust is unbreakable, that once it is written and the maker is deceased nothing more can be done, family members and others may still try to challenge the will for many reasons, one of them being a perceived inequity or unfairness in the will.

If you believe that your loved one’s will was unjust or that there was an inequity in the distribution of assets, contact the Chicago decedent’s estate litigation attorneys of Peck Ritchey, LLC at (312) 201-0900 about how whether we can help you reach a more appropriate outcome.

Perceived Inequity or Unjust Enrichment

A staple of old murder mysteries and romance novels, the relative who thinks they should have gotten more in the will isn’t always a fictional character. Sometimes sons and daughters believe they were going to receive more than they did or were told that everything was going to be divided equally, only to discover during probate that their information was wrong.

In other cases, a friend or caregiver may have spent considerable time with the decedent in their final days, and reasonably expected to be included in the will, but nothing was ever added or amended to leave them anything. Because of Illinois’ statutory requirements for wills and codicils, oral amendments and holographic or handwritten wills are not valid, so a promise made to an old friend cannot be considered at probate.

Contesting a Will

In Illinois, anyone who is affected by the contents and execution of a will can contest the will in court. This is called “standing.” Relatives and friends may have standing if they expected to be mentioned in the will and were not, or if they received a bequest that was not what they were told they were going to receive.

The time to contest a will is very short. Illinois allows only six months to contest a will after the date it is filed in probate. The date of the probate filing is public record since creditors and lien holders must be notified of the decedent’s death, but there is no requirement that anyone not mentioned in the will be notified, even if they are relatives.

Grounds to Challenge a Will

If you think you were unfairly left out of a will, or the bequest left you was improper, there are a few grounds on which to challenge it.

• Lack of valid execution. In Illinois, a will must be signed in the presence of two witnesses who attest that they know the signer and witnessed the signature. They are also attesting that they believe the signer intended to sign the will and intended this to be their final will.
• Lack of knowledge and approval. The testator (signer) must understand all the contents of the will and agree to everything in it. For instance, a large gift to someone the testator disliked, or a small gift to someone they loved dearly, might indicate the testator was not aware of the contents of the will when they signed it.
• Undue influence. Proving undue influence in a will is more difficult than in other areas of law. There is no presumption that merely because someone influential in the testator’s life received a large gift that there must have been undue influence. However, if this person recently arrived, if the disposition of the will abruptly changed, or if other important people were cut out of the will in favor of that person, it might indicate undue influence.
• Rectification and construction. In cases where the testator meant to change their will and was unable to do so or believed due to lack of legal knowledge or advice that the changes they had made were adequate when they were not, then the court may agree to rectify or change the will according to their instructions. For instance, if a prepared will included a handwritten note at the bottom that said “I, Mary Smith, wish to leave my friend Jane Doe, $5,000 in memory of our friendship,” and it was signed and dated, this would not be valid as a codicil under Illinois law. However, Jane could challenge the will in court and offer evidence that Mary intended this as a legal codicil to her will.

How We Can Help

The stereotype of someone who thinks they were cut out of the will is usually an entitled grandchild who never called or visited. More often, it will be someone who was a close friend or caregiver who was told or led to believe that the decedent was leaving them something. It may be a relative who thought things were being divided evenly and found they got much less than other family members.

In cases like these, you may want to consult an attorney to see whether you have any legal grounds for a case. For instance, a caregiver might reasonably expect some return for money spent on the decedent’s behalf. A family member might suspect undue influence or even declining mental capacity in cases of unequal division of property or business ownership.

At Peck Ritchey, LLC, we will review your case carefully to see if anything appears out of place or improper and give you a realistic opinion on the pros and cons of pursuing the case. We understand that making decisions at a time when emotions and grief are still raw is difficult.

Remember that the time to contest the will is very brief. Six months is a very narrow window to review the will and decide if there are grounds to challenge the case. We will take the time needed to go over your case and help you decide the best course of action within that window and see whether litigation is the ideal way to proceed.

Contact Us

Call Peck Ritchey, LLC today at (312) 201-0900 for a compassionate and confidential consultation. Let us help you through this difficult decision. However you decide to proceed, you will have done so with all the facts at your disposal.