When a will does not meet Illinois requirements for signing and witnessing, a court may determine that the will is invalid. This issue is often called improper execution. If you believe a loved one’s will did not follow the required signing rules, a lawyer can explain how Illinois law may apply to your circumstances. Peck Ritchey, LLC assists Chicago clients with probate disputes involving questions about a will’s validity.
Why Choose Peck Ritchey, LLC for Will Execution Disputes
When a will’s validity is in question, legal counsel can help you understand the Illinois probate process. Peck Ritchey, LLC handles probate litigation and estate disputes. The legal team can review the available documents and discuss the procedures that may apply in a will contest.
- Experience with probate litigation and estate disputes
- Knowledge of Illinois probate law and court procedures
- Representation in will-contest matters
- Free consultations to discuss your case and questions
What Does Improper Execution of a Will Mean?
Improper execution means a will may not meet the legal requirements Illinois law sets for a valid will. Every state has rules for how a person must sign and witness a will. When a will does not follow these rules, a court may determine that it is invalid. The estate may then pass under a prior valid will or through Illinois intestacy laws.
The rules help establish that the document was properly executed. When the required steps do not occur, questions may arise about the document’s validity. Illinois courts review execution requirements when a will contest raises those issues. The Illinois State Bar Association provides general information about will execution requirements.
Common Execution Errors That Can Invalidate a Will
Several issues may lead to a finding of improper execution:
- Missing signatures from the testator or required witnesses
- Only one witness signing when Illinois law generally requires at least two credible witnesses
- The witnesses not signing in the testator’s presence
- Questions about whether the testator signed or acknowledged the will before the witnesses
- Problems with a self-proving affidavit or the absence of an affidavit
A will does not need to be dated to satisfy the basic execution requirements in Illinois. However, an undated will may create questions about timing or which document controls.
A self-proving affidavit does not replace the basic execution requirements. It may make the probate process more efficient by providing evidence of the will’s execution without live witness testimony. A will that does not meet the applicable signing and witnessing requirements may still be challenged even if it includes a self-proving affidavit.
Illinois Law on Will Execution Requirements
Illinois law, including the Illinois Probate Act, sets requirements for executing a valid will. A will must be in writing. The testator, the person making the will, must sign it. If the testator cannot sign because of a physical limitation, another person may sign at the testator’s direction and in the testator’s presence.
At least two credible witnesses must attest the will in the testator’s presence. The witnesses sign to confirm the execution of the document. A beneficiary is not automatically disqualified from serving as a witness. However, the beneficiary’s gift may be limited or affected under Illinois’s interested-witness rule unless there are sufficient other credible witnesses.
A self-proving affidavit differs from proper execution. A self-proving affidavit is a separate document that witnesses sign before a notary. It can make probate more efficient by allowing the court to consider the affidavit as evidence of execution. However, it does not replace the required signatures and witness attestations.
How to Challenge a Will Based on Improper Execution
To challenge a will for improper execution, an interested person may file a will contest in probate court. The court may review evidence such as witness testimony, the will itself, and records related to its execution. The burden of proof may depend on the issue raised and the procedural posture of the case. In a will contest, the party offering the will may need to establish that the will was properly executed. Kerry R. Peck, managing partner, has experience handling will contests in Cook County.
Evidence may include testimony from witnesses, handwriting analysis, and records showing the timeline of events. The court may also consider whether the testator used similar formalities for prior wills.
In Illinois, an interested person generally must file a will contest within six months after the court admits the will to probate. Missing that deadline may affect the ability to challenge the will. The firm’s decedent’s estate litigation page provides information about estate litigation deadlines.
Who Can File a Will Contest in Illinois?
Not everyone can challenge a will. Only interested parties have standing to file a contest. An interested party may include:
- Heirs who might inherit if the court determines the will is invalid
- Beneficiaries named in a prior will
- Family members or other people who may receive property under Illinois law on intestate succession
If you are defending a will, you may need to respond to claims about its execution. The validity of the will may affect people involved in the estate. Legal counsel can explain the procedures and help present the relevant evidence to the court. Timothy J. Ritchey and the firm’s legal team assist clients with will contests throughout Illinois.
Frequently Asked Questions About Improper Execution of Wills
What happens if a will was not signed by the testator?
If the testator did not sign the will, the will may be invalid. However, Illinois law may recognize a signature made by another person if that person signed at the testator’s direction and in the testator’s presence. The available evidence and circumstances affect the analysis.
Can a will be valid if it was signed by only one witness?
Illinois law generally requires at least two credible witnesses to attest a will in the testator’s presence. A will with only one witness signature may not meet the execution requirements for a valid Illinois will.
How long do I have to contest a will in Illinois?
An interested person generally has six months from the date the court admits the will to probate to file a will contest. This deadline can affect whether a claim may proceed. Speaking with a lawyer after learning of the will may help you understand the applicable timeline. The American Bar Association Section of Real Property, Trust and Estate Law offers resources on will contests.
What is the difference between improper execution and lack of capacity?
Improper execution involves questions about the signing and witnessing process. For example, the will may lack the required signatures or witness attestations. Lack of capacity concerns whether the testator had the legal capacity to make the will. These are separate grounds for contesting a will, and both may be raised in the same case. The firm’s lack of mental capacity page provides information about capacity disputes.
Contact Peck Ritchey, LLC for a Free Consultation
If you have concerns about a will’s execution, Peck Ritchey, LLC offers free consultations to discuss your situation. The firm can explain options that may be available and the process involved in a potential will contest. Call (312) 201-0900 to speak with a Chicago will execution lawyer. The firm’s case results demonstrate experience in will contest litigation.