When someone creates or modifies a will to leave their wealth to a beneficiary whom family or friends find suspicious, an interested person may file a petition contesting the will in Illinois state court within six months after the will was admitted for probate after the testator’s death. One ground for invalidating a will through this process is if another person exerted undue influence over the deceased person to make a bequest they would not have made without pressure or coercion.
Undue influence is a psychological phenomenon recognized in law
Psychologically, an elder (or any vulnerable person) is unduly influenced when another person exploits the senior’s “trust, dependency, and fear” to control the older person’s decision-making processes in ways similar to what happens in a cult or through brainwashing techniques, explains the National Center on Law & Elder Rights.
Illinois law recognizes that undue influence can take away the victim’s independent thinking when making a will, allowing the influencer to direct the testator (will writer) to leave assets to the influencer or a beneficiary of the influencer’s choice, rather than of the testator’s. People in the Geneva area and across Illinois may have had the experience where undue influence may not have come to light until after a loved one has died and family members who logically expect to be beneficiaries under the will learn that their loved one instead left their bounty to others at the influencer’s direction.
Illinois courts and undue influence
Illinois state courts have a long history of interpreting what undue influence is for this purpose. The bottom line is that it is unique and variable with each situation, but judges recognize certain important features.
For example, in the 2020 case In re Estate of Gerulis, the Appellate Court of Illinois (Third District) explained that the undue influence must “destroy the testator’s freedom concerning the disposition of his estate and render his will that of another.” The persuasion must have been improper, overpowering the testator’s will to do what they would otherwise have done freely and inducing them to act otherwise.
Inheritances left to non-related caregivers
The Illinois Probate Act of 1975 was recently amended to address inheritances left to caregivers who are not family members. According to Sec. 4a-10, during a will contest, if the will directs a transfer of property of more than $20,000 to a non-related caregiver, this is automatically voided with the presumption that the transfer is fraudulent. This is in response to the growing concern that caregivers assert undue influence over elderly or vulnerable individuals.
The law also states that in these circumstances, caregivers have two options to rebut this presumption:
- If they can prove to the court by a preponderance of evidence that the share left to them in the will is not greater than the share they were entitled to under the testator’s will prior to becoming the caregiver; or
- If they can provide “clear and convincing evidence” that the transfer was not clouded by undue influence, fraud or duress.
Nuts and bolts
The contestant may request a jury trial, otherwise, the judge will decide legal and factual issues. Interestingly, the overarching legal issue is whether the document “is the will of the testator.” In other words, if the purported will is invalid because of undue influence, it is legally not the testator’s will as if it does not exist.
The Illinois Supreme Court has said that a court may completely invalidate a will if the testator created all of it under undue influence. If only part of it was unduly influenced, the court may invalidate only that portion if it does not “[defeat] the testator’s intent.”
The contestant can prove four factors to establish a rebuttable presumption of undue influence:
- Fiduciary relationship between the testator and a beneficiary (or beneficiaries) of substantial assets in the will
- Testator dependency on that beneficiary
- Testator trust in that beneficiary
- Beneficiary-fiduciary involvement in the will preparation
A fiduciary relationship is automatic when the alleged influencer has an official position of responsibility for the testator like a guardian, conservator, agent under a power of attorney, representative payee for Social Security benefits, trustee or another legal position of trust. The influencer may also be a fiduciary in this circumstance such as when the elder depends on the person for assistance with housing, procuring groceries and necessities, paying bills, providing transportation or even providing direct care or companionship. It could be a neighbor, relative, caregiver, acquaintance or friend if the requisite level of domination, control or superiority exists.
The respondent to the petition (ordinarily the executor of the estate), may present evidence to rebut the presumption that disproves any of the four elements or the undue influence itself. If the court decides it was rebutted, the petitioner can still try to show undue influence without the presumption.
Allegations of undue influence, unfortunately, can arise among siblings left disproportionate inheritances and in other circumstances of unequal bequests or disinheritance.
Understanding the statute of limitations
In Illinois, interested parties must adhere to a six-month deadline in order to contest the will. This deadline begins from the date the will entered probate. Interested parties include anyone who stands to benefit or be otherwise affected financially from the contents of the will, including a spouse, children, grandchildren and others who may have had a close relationship with the testator.
Given the complexities surrounding bringing a case forward to contest a will and the time limit in which one must do so, consulting an attorney early on can be helpful.