Ill. Pattern Jury Instr. (Civil) 200.00

Introduction

A. General Principles

The statutory authority for a will contest is contained in 755 ILCS 5/8- 1 and 8-2 (1994).

Section 8 -1 provides that within six (6) months after the admission to probate of a will, an

interested person may contest the will.1

The representatives and all the heirs and legatees of the testator must be made parties to

the proceeding. Any party to the proceeding may demand a jury trial on whether or not the

instrument produced is the will of the testator. Section 8 -2 contains the same statutory ability to

contest the denial of an admission of a will to probate within six (6) months after entering the

order denying the admission. In a will contest proceeding, all issues regarding the validity of the

will are tried de novo; the order admitting the will to probate cannot be introduced into evidence

and has no force and effect. In re Ketter's Estate , 63 Ill.App.3d 796, 380 N.E.2d 385, 389, 20

Ill.Dec. 407, 411 (1st Dist.1978), citing Sternberg v. St. Louis Union Trust Co., 394 Ill. 452, 68

N.E.2d 892 (1946).

B. Standing

In order to contest a will, the plaintiff must have standing. This requires a direct,

pecuniary, existing interest which would be detrimentally affected by the probate of the proffered

will. In re Estate of Keener , 167 Ill.App.3d 270, 521 N.E.2d 232, 234, 118 Ill.Dec. 164, 166 (3d

Dist.1988) (citing Kelley v. First State Bank of Princeton, 81 Ill.App.3d 402, 401 N.E.2d 247, 36

Ill.Dec. 566 (3d Dist.1980)). This includes legatees 2 of a prior will who stand to inherit if the

contested will is set aside. Keener, 167 Ill.App.3d at 271- 72, 521 N.E.2d at 234, 118 Ill.Dec. at

166 (citing In re Lipchik's Estate, 27 Ill.App.3d 331, 326 N.E.2d 464 (1st Dist.1975)).

These requirements were strictly interpreted by the court of appeals in Keener, which held

that the wife of the testator's grandson, who was named as a beneficiary in a prior will, lacked

standing to contest the will because she was not an “interested person” in that she was not named

in the will which immediately preceded the final will. Keener, 167 Ill.App.3d at 272, 521 N.E.2d

at 234, 118 Ill.Dec. at 166. The dissent argued that this construction was too strict, and that the

1 An action to set aside or contest validity of a revocable inter vivos trust to which a legacy is provided by will which

is admitted to probate must also be commenced within the time allowed to contest the validity of a will (six months

from admission of the will to probate). 735 ILCS 5/13-223 (1994).

2 “Legatee” includes devisee. 755 ILCS 5/1-2.12 (1994).

majority was in conflict with the rule established in Kelley v. First State Bank of Princeton, 81

Ill.App.3d 402, 413, 401 N.E.2d 247, 255, 36 Ill.Dec. 566, 574 (3d Dist.1980), that a “prior will”

is not necessarily limited to the “immediately preceding” will. Keener, 167 Ill.App.3d at 273, 521

N.E.2d at 234-35, 118 Ill.Dec. at 166-67.

The purpose of a will contest proceeding is to determine whether the writing produced is

the will of the decedent. Roeske v. First Nat'l Bank , 90 Ill.App.3d 669, 413 N.E.2d 476, 478, 46

Ill.Dec. 36, 38 (2d Dist.1980). A plaintiff with standing to contest a will 3 may assert any number

of grounds to invalidate it. These grounds include undue influence, lack of testamentary capacity,

fraud, forgery, revocation, ignorance of the contents of the will, partial invalidity, or any other

ground that would show that the document is not the decedent's will. Roeske v. First Nat'l Bank ,

90 Ill.App.3d at 671, 413 N.E.2d at 478, 46 Ill.Dec. at 38. The party contesting the will has the

burden of proving its invalidity. Franciscan Sisters Health Care Corp. v. Dean, 95 Ill.2d 452,

448 N.E.2d 872, 877, 69 Ill.Dec. 960, 965 (1983).

C. Grounds for Invalidity of a Will

1. Undue Influence

Influence is “undue” when it “prevents the testator from exercising his own will in the

disposition of his estate” such that the testator's will is rendered more the will of another. Id. , 69

Ill.Dec. at 963. In order to invalidate a will, the undue influence must have been “directly

connected with the execution of the will” and it must have operated at the time the will was

made. Schmidt v. Schwear , 98 Ill.App.3d 336, 424 N.E.2d 401, 405, 53 Ill.Dec. 766, 770 (5th

Dist.1981). Undue influence can be exerted by direct beneficiaries or by third parties, such as the

spouse of a beneficiary. Swenson v. Wintercorn, 92 Ill.App.2d 88, 234 N.E.2d 91, 98 (2d

Dist.1968). Influence need not be exerted in an untoward manner to be undue. Even kindness and

affection can constitute undue influence if they destroy the testator's “free agency.” Kelley v.

First State Bank of Princeton, 36 Ill.Dec. at 575.

a. Presumption of Undue Influence

A rebuttable presumption of undue influence can result when a fiduciary relationship

exists between the testator and a legatee. A rebuttable presumption arises when the plaintiff

proves (1) the existence of an attorney -client relationship or other fiduciary relationship between

the decedent and the beneficiary such that the beneficiary is the dominant party, (2) that the

decedent reposed trust and confidence in the beneficiary, (3) that the beneficiary prepared or

procured the preparation of the purported w ill, and (4) that the beneficiary would receive a

substantial benefit under the document. Tidholm v. Tidholm , 391 Ill. 19, 62 N.E.2d 473 (1945)

(the leading case). Accord Redmond v. Steele , 5 Ill.2d 602, 610, 126 N.E.2d 619, 624 (1955);

Nemeth v. Banhalmi , 125 Ill.App.3d 938, 960, 466 N.E.2d 977, 992, 81 Ill.Dec. 175, 190 (1st

Dist.1984); In re Estate of Mooney, 117 Ill.App.3d 993, 997, 453 N.E.2d 1158, 1161, 73 Ill.Dec.

3 “Will” includes testament and codicil. 755 ILCS 5/1-2.18 (1994).

169, 172 (3d Dist.1983); In re Stuhlfauth's Estate , 88 Ill.App.3d 974, 979, 410 N.E.2d 1063,

1066-67, 43 Ill.Dec. 930, 933- 34 (3d Dist.1980); Kelley v. First State Bank , 81 Ill.App.3d 402,

413-14, 401 N.E.2d 247, 256, 36 Ill.Dec. 566, 575 (3d Dist.1980); In re Basich's Estate , 79

Ill.App.3d 997, 1002, 398 N.E.2d 1182, 1186, 35 Ill.Dec. 232, 236 (1st Dist.1979); Estate of

Letsche, 73 Ill.App.3d 643, 646, 392 N.E.2d 612, 614, 29 Ill.Dec. 915, 917 (1st Dist.1979);

Beyers v. Billingsley, 54 Ill.App.3d 427, 436, 369 N.E.2d 1320, 1326, 12 Ill.Dec. 306, 312 (3d

Dist.1977); Herbolsheimer v. Herbolsheimer, 46 Ill.App.3d 563, 565- 66, 361 N.E.2d 134, 136, 5

Ill.Dec. 134, 136- 37 (3d Dist.1977); Swenson v. Wintercorn, 92 Ill.App.2d 88, 99, 234 N.E.2d

91, 97 (2d Dist.1968). By proving these elements, a party contesting a will establishes a prima

facie case of undue influence. Nemeth v. Banhalmi , 125 Ill.App.3d 938, 960, 466 N.E.2d 977,

992, 81 Ill.Dec. 175, 190 (1st Dist.1984).

A presumption of undue influence will not arise merely upon proof of a fiduciary

relationship. Instead, the party contesting the w ill must demonstrate that the legatee who is the

dominant party procured the execution of the will. Estate of Letsche , 73 Ill.App.3d 643, 392

N.E.2d 612, 614, 29 Ill.Dec. 915, 917 (1st Dist.1979).

b. Proof of Fiduciary Relationship

The fiduciary relatio nships referred to in this four -part test are not limited to fiduciary

relationships that exist as a matter of law, such as those between an attorney and client or a

guardian and ward. A fiduciary relationship can also arise out of an informal relationship, which

is “moral, social, domestic or even personal in its origin.” Swenson v. Wintercorn, 234 N.E.2d at

97. Thus, courts have found fiduciary relationships between an elderly or infirm testator and a

devisee or legatee who was taking care of the testator or who was handling the testator's financial

affairs at the time the will was executed. See Nemeth v. Banhalmi , supra; Kelley v. First State

Bank of Princeton, supra. Where a fiduciary relationship does not exist as a matter of law, the

existence of the fiduciary relationship must be established by proof that is “clear, convincing, and

so strong, unequivocal and unmistakable as to lead to but one conclusion.” Swenson v.

Wintercorn, 234 N.E.2d at 97.

c. Effect of Presumption

Once the plaintiff has raised the presumption of undue influence, the burden of producing

evidence to rebut the presumption shifts to the persons standing in the fiduciary relationship to

the testator. Franciscan Sisters Health Care Corp. v. Dean, 69 Ill.Dec. at 964. The burden of

persuasion, however, remains with the plaintiff, since plaintiff has the burden of proving undue

influence. Id. at 964- 65. The amount of evidence necessary to rebut the presumption depends

upon the facts of each case. In re Estate of Woodruff , 164 Ill.App.3d 791, 518 N.E.2d 295, 297,

115 Ill.Dec. 770, 772 (1st Dist.1987), citing Nemeth v. Banhalmi , 81 Ill.Dec. at 191.

Establishment of a prima facie case of undue influence in the procurement of the will has been

held to be sufficient to overcome a motion for summary judgment. In re Estate of Jessman , 197

Ill.App.3d 414, 554 N.E.2d 718, 143 Ill.Dec. 783 (5th Dist.1990).

The issues of whether a presumption of undue influence has been raised and whether

sufficient evidence to rebut the presumption has been produced are questions of law for the court

to decide. If the presumption of undue influence is not rebutted, the plaintiff is entitled to a

judgment as a matter of law. Franciscan Sisters Health Care Corp. v. Dean, 69 Ill.Dec. at 965. If

the presumption is rebutted, the presumption of undue influence ceases to exist, but an inference

of undue influence remains. Plaintiff then has the burden of proving that the will was the product

of undue influence on the basis of the evidence offered at trial. Id. In a case tr ied before a jury,

the issue of undue influence must be submitted to the jury without any mention of the

presumption if the presumption has been rebutted. Id. at 964, citing Diederich v. Walters , 65

Ill.2d 95, 357 N.E.2d 1128, 1130-31, 2 Ill.Dec. 685, 687-88 (1976).

2. Lack of Testamentary Capacity

Proof that a testator lacked testamentary capacity is another ground for invalidating a will.

Testamentary capacity is defined as the “mental ability to know and remember who are the

natural objects of [one's] bounty, to comprehend the kind and character of [one's] property, and to

make disposition of the property according to some plan formed in [one's] mind.” Beyers v.

Billingsley, 54 Ill.App.3d 427, 369 N.E.2d 1320, 1328, 12 Ill.Dec. 306, 314 (3d Dist.1977). The

law presumes the sanity and soundness of mind of every person until the contrary is proved.

Sloger v. Sloger, 26 Ill.2d 366, 186 N.E.2d 288 (1962). The party contesting a will on grounds of

lack of testamentary capacity has the burden of proving such. Estate of Wrigley , 104 Ill.App.3d

1008, 433 N.E.2d 995, 1003, 60 Ill.Dec. 757, 765 (1st Dist.1982). Evidence of physical

impairment and evidence that a guardian was appointed for the testator can be considered on the

issue of testamentary capacity, but neither piece of evidence is conclusive. Manning v. Mock, 119

Ill.App.3d 788, 457 N.E.2d 447, 457, 75 Ill.Dec. 453, 463 (4th Dist.1983); In re Basich's Estate ,

79 Ill.App.3d 997, 398 N.E.2d 1182, 1185, 35 Ill.Dec. 232, 235 (1st Dist.1979). Evidence of a

lack of testamentary capacity “must relate to a time at or near the execution of the will,” Manning

v. Mock, 75 Ill.Dec. at 462, since the will may only be invalidated on this ground if plaintiff can

prove that the testator lacked testamentary capacity at the time the will was executed. Id. at 463.

3. Fraud or Forgery

The fraud which will invalidate a will relates to “such conduct as a trick or device by

which a person may be induced to sign the paper under the impression it is something else, or to

the alteration of the will after it is signed, or the substitution of another paper for part of the will

after it has been signed, and matters of like character.” Swirski v. Darlington, 369 Ill. 188, 15

N.E.2d 856 (1938). To establish forgery as a ground to invalidate a will, the contestant may show

that (1) the witnesses to the will were unworthy of belief, or (2) the testator could not have been

present at the time and place he was alleged to have signed the will, or (3) that the will was not

signed in the testator's handwriting. Sellers v. Kincaid, 303 Ill. 216, 135 N.E. 429 (1922). The

general rule is that when forgery and fraud are alleged, “courts permit evidence to take a wide

range and every fact and circumstance, no matter of how little probative value, which throws any

light on the issue, is admissible.” Shelby Loan & Trust Co. v. Milligan, 372 Ill. 397, 24 N.E.2d

157 (1939). Fraud cannot be established on mere suspicion. It must be affirmatively proved by

clear and convincing evidence. In re Gray's Estate , 39 Ill.App.2d 239, 188 N.E.2d 379 (2d

Dist.1963).

4. Revocation

Revocation is one ground that may be asserted for the purpose of invalidating an

instrument. Roeske v. First Nat'l Bank , 90 Ill.App.3d 669, 413 N.E.2d 476, 46 Ill.Dec. 36 (2d

Dist.1980). A will may be revoked only by (1) burning, cancelling, tearing or obliterating it by

the testator himself or by some person in his presence and by his direction and consent, (2) the

execution of a later will declaring the revocation, (3) execut ion of a later will to the extent that it

is inconsistent with the prior will, or (4) execution of an instrument declaring the revocation and

signed and attested in the manner required for the signing and attestation of a will. 755 ILCS

5/4-7(a) (1994). However, the commission of one of the requisite acts of revocation, standing

alone, is ineffectual unless accompanied by an intent to revoke. In re Estate of Minsky , 46

Ill.App.3d 394, 360 N.E.2d 1317, 4 Ill.Dec. 884 (1st Dist.1977).

A will last known to have been in the possession of the testator which cannot be found

upon his death is presumed to have been destroyed by the testator with the intention of revoking

it, and under these circumstances the burden is on the proponent to prove that the proffered wi ll

was valid at the time of the testator's death. In re Estate of Marsh, 31 Ill.App.2d 101, 175 N.E.2d

633 (1st Dist.1961). Factors to be considered in addressing the rebuttal of the presumption

include (1) evidence as to statements from the testator that he did not intend to revoke the will,

(2) evidence that he entertained a kind and loving attitude toward the proposed beneficiary under

the will up to the time of death, and (3) evidence of other persons' access to the will prior to

death. In re Estate of Strong, 194 Ill.App.3d 219, 550 N.E.2d 1201, 141 Ill.Dec. 155 (1st

Dist.1990).

Where a will remains in the testator's possession until his death and is then found among

his papers with erasures, alterations, cancellations, or tearings, the presumption is that such act,

manifest upon the will, was done by the testator with the intention of revoking the will. In re

Estate of Deskins, 128 Ill.App.3d 942, 471 N.E.2d 1018, 84 Ill.Dec. 252 (2d Dist.1984).

5. Ignorance of Contents of Will

Where a will is prep ared for a testator, and he is not given an opportunity to read it, or if

he is unable to read and its contents have not been explained to him, such an instrument will not,

on contest, be sustained as his will. Pepe v. Caputo, 408 Ill. 321, 97 N.E.2d 260 ( 1951); Downey

v. Lawley, 377 Ill. 298, 36 N.E.2d 344 (1941). It is likewise the rule that where the testator is

shown to have executed an instrument as his will, it will be presumed, in the absence of evidence

of fraud, imposition or mental incapacity, that he was aware of the content, and his signature is

prima facie evidence of his having understandingly executed it. Pepe v. Caputo, supra; Downey

v. Lawley, supra; Sheer v. Sheer, 159 Ill. 591, 43 N.E. 334 (1895). Where a will is shown to have

been prepared at the request of the testator, though under general directions, and he afterwards

executes the same in the manner provided by the law, it may not be set aside on the ground that

he did not understand what it contained, except upon clear and satisfactory proof of that fact.

Pepe v. Caputo, supra; Downey v. Lawley, supra; Sheer v. Sheer , 159 Ill. 591, 43 N.E. 334

(1895); Compher v. Browning, 219 Ill. 429, 76 N.E. 678 (1906).

6. Partial Invalidation of Will

A will can be partially invalidated in certain circumstances. If a portion of a will is

invalidated on any ground and if the remaining portion of the will can be enforced “without

defeating the testator's intent or destroying the testamentary scheme,” then the remaining portion

of the will is enforceable. See Williams v. Crickman , 81 Ill.2d 105, 405 N.E.2d 799, 804, 39

Ill.Dec. 820, 825 (1980). If, however, a portion of the will is invalidated and the remainder of the

will cannot be enforced without violating the testator's overall testamentary intent, then the entire

will must be invalidated. Id.

D. Tortious Interference With Expectancy

At times, certain activities that give rise to grounds to invalidate a will can also serve as

the basis for a cause of action for intentional interference with an expectancy. The practitioner

should be aware that when this tort action involves the validity of a will, the plaintiff must

likewise file this action within the six -month period provided for contesting a will. For further

discussion of this issue, see the introduction to IPI Chapter 205, Tortious Interference With

Expectancy.

E. Notes on Use

The following instructions are for use when there is a will contest. These instructions

anticipate the simple situation w here the challenged will consists of one document. Where there

is a more complex factual situation (i.e., a will with one or more codicils), the instructions will

have to be modified accordingly.