Invalidating a will in illinois
In many jurisdictions, the signature must be at the end of the will to be valid. Like the testator, the witnesses must possess certain minimal qualifications or their attestations may be legally insufficient to validate the will.
In addition to the testator signing the will, it also has to be signed by witnesses.
There can also be a mistake in the inducement, when a testator is mistaken about a material fact and makes no provision in the will because of it. Ultimately, the testator is responsible for ensuring that the will accurately reflects his intentions. New York takes an even harsher view of undue influence in these circumstances. This explanation takes place at a hearing, even if the will is not contested and no objection to the gift is filed. Conversely, if the will was prepared by another attorney, whereby the testator received independent legal advice, no presumption of undue influence arises. Lastly, for a nominal fee, the will can be deposited in the will safe at the surrogate court.
If the elimination of a provision created under undue influence does not defeat the overall testamentary plan, it can be stricken; the rest of the will is still valid. This type of modification is similar to one found in contracts that allows a provision that is illegal or conflicting to be eliminated; however, the contract itself still remains valid. Although the will may not be invalidated or changed, the intended beneficiaries might be able to hold the attorney liable for negligent drafting. As an alternative, the will can be deposited in a will safe or vault of the attorney who drafted it.
Undue influence involves substituting another person’s will for that of the testator.
Fraud in the inducement involves the testator making the will or writing a provision that relies upon a false representation of a material fact made to him by one who knows it to be false. In effect, no relief is granted for the injured party. Accordingly, many courts presume there was undue influence in instances where the attorney drafted the will.
In these jurisdictions, even deciding where “the end” of the will is can create uncertainty. The modern view is that everything appearing before the signature is given effect; but the provisions that follow the signature are void (even assuming they existed at the time the will was made). Specifically, the witnesses must be competent—they must be mature enough and of sufficient mental capacity to understand and appreciate the nature of the act that they are witnessing and attesting to, so that, if needed, the witnesses could testify in court on these matters. Another function of the witness is to attest (or bear witness) to the fact that the will has been duly executed by the testator. In contrast, self-proved wills (wills admitted to probate on the strength of the recitals in the affidavit without the necessity for the witnesses to actually come and testify themselves) require the added step of the testator and witnesses signing a sworn affidavit, usually on a separate sheet of paper, before a notary public. Testamentary intent involves the testator having subjectively intended that the document in question constitute his or her will at the time it was executed. In addition to testamentary intent, the testator must have the testamentary capacity, at the time the will is executed. Ordinarily, the opening recital, e.g., I, Jane Doe, do hereby declare this instrument to be my Last Will and Testament . Generally, it takes less capacity to make a will than to do any other legal act. The testator must: See, e.g., Estate of Bullock, 140 Cal. Rebuttable (presumption): An established fact can be overturned upon the showing of sufficient proof. The key is that the mark must be intended to be the testator’s signature and is made willingly by the testator. Additionally, proxy signatures (made by another person) are acceptable, as long as the signing is at the testator’s direction and in his or her presence. The signature can appear anywhere, provided it was intended by the testator to be his signature. Signing anywhere can create confusion as to the effect of provisions that may appear after the testator’s signature. Today, most jurisdictions have “purging” statutes that delete the gift to the interested witness so that the will is not denied probate. Most jurisdictions define presence as the testator being conscious of where the witnesses were and what they were doing when they signed. Once evidence tending to disprove the fact is introduced, the validity of the fact is entirely dissipated and the party with the original burden of proof must come forward with evidence to avoid losing the argument. A common modification to the above list of requirements is that the testator be of “sound mind” and capable of executing a valid will. Code § 6100; Idaho Code § 15-2-501; Utah Code § 75-2-501. Even if the testator needs assistance in signing his name due to some infirmity, it still meets the signature requirement, as long as the testator desired and intended to sign the instrument. Historically, if there were material provisions appearing after the testator’s signature, the entire will was void. Some states require that the testator sign the will in the presence of the witnesses. Most courts are indifferent about whether the attesting witnesses or the testator signs first. Other jurisdictions dictate that the presence test is only satisfied if the witnesses are in the testator’s line of sight when they signed.
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