Article VIII - Will Contests
(755 ILCS 5/Art. VIII heading) ARTICLE VIII WILL CONTESTS
(755 ILCS 5/8‑1) (from Ch. 110 1/2, par. 8‑1)
Sec. 8‑1. Contest of admission of will to probate; notice.
(a) Within 6 months after the admission to probate of a domestic will in accordance with the provisions of Section 6‑4, or of a foreign will in accordance with the provisions of Article VII, any interested person may file a petition in the proceeding for the administration of the testator's estate or, if no proceeding is pending, in the court in which the will was admitted to probate, to contest the validity of the will.
(b) The petitioner shall cause a copy of the petition to be mailed or delivered to the representative, to his or her attorney of record, and to each heir and legatee whose name is listed in the petition to admit the will to probate and in any amended petition filed in accordance with Section 6‑11, at the address stated in the petition or amended petition. Filing a pleading constitutes a waiver of the mailing or delivery of the notice to the person filing the pleading. Failure to mail or deliver a copy of the petition to an heir or a legatee does not extend the time within which a petition to contest the will may be filed under subsection (a) of this Section or affect the validity of the judgement entered in the proceeding.
(c) Any contestant or proponent may demand a trial by jury. An issue shall be made whether or not the instrument produced is the will of the testator. The contestant shall in the first instance proceed with proof to establish the invalidity of the will. At the close of the contestant's case, the proponent may present evidence to sustain the will. An authenticated transcript of the testimony of any witness taken at the time of the hearing on the admission of the will to probate, or an affidavit of any witness received as evidence under subsection 6‑4(b), is admissible in evidence.
(d) The right to institute or continue a proceeding to contest the validity of a will survives and descends to the heir, legatee, representative, grantee or assignee of the person entitled to institute the proceeding.
(e) It is the duty of the representative to defend a proceeding to contest the validity of the will. The court may order the representative to defend the proceeding or prosecute an appeal from the judgment. If the representative fails or refuses to do so when ordered by the court, or if there is no representative then acting, the court, upon its motion or on application of any interested person, may appoint a special administrator to defend or appeal in his stead.
(f) An action to set aside or contest the validity of a revocable inter vivos trust agreement or declaration of trust to which a legacy is provided by the settlor's will which is admitted to probate shall be commenced within and not after the time to contest the validity of a will as provided in subsection (a) of this Section and Section 13‑223 of the Code of Civil Procedure.
(g) This amendatory Act of 1995 applies to pending cases as well as cases commenced on or after its effective date.
(Source: P.A. 89‑364, eff. 8‑18‑95.) |
(755 ILCS 5/8‑2) (from Ch. 110 1/2, par. 8‑2)
Sec. 8‑2. Contest of denial of admission of will to probate.
(a) Within 6 months after the entry of an order denying admission to probate of a domestic will in accordance with the provisions of Section 6‑4, or of a foreign will in accordance with the provisions of Article VII, any interested person desiring to contest the denial of admission may file a petition to admit the will to probate in the proceeding for the administration of the decedent's estate or, if no proceeding is pending, in the court which denied admission of the will to probate. The petition must state the facts required to be stated in Section 6‑2 or 6‑20, whichever is applicable.
(b) The petitioner shall cause a copy of the petition to be mailed or delivered to the representative, to his or her attorney of record, and to each heir and legatee whose name is listed in the petition to admit the will to probate and in any amended petition filed in accordance with Section 6‑11, at the address stated in the petition or amended petition. Filing a pleading constitutes a waiver of the mailing or delivery of the notice to the person filing the pleading. Failure to mail or deliver a copy of the petition to an heir or legatee does not extend the time within which a petition to admit the will to probate may be filed under subsection (a) of Section 8‑1 or affect the validity of the judgment entered in the proceeding.
(c) Any proponent or contestant may demand a trial by jury. An issue shall be made whether or not the instrument produced is the will of the testator. The proponent shall in the first instance proceed with proof to establish the validity of the will and may introduce any evidence competent to establish a will. Any interested person may oppose the petition and may introduce any evidence admissible in a will contest under Section 8‑1. At the close of the contestant's case, the proponent may present further evidence to sustain the will.
(d) The right to institute or continue a proceeding to contest the denial of admission of a will to probate survives and descends to the heir, legatee, representative, grantee or assignee of the person entitled to institute the proceeding.
(e) The court may order the representative to defend a proceeding to probate the will or prosecute an appeal from the judgment. If the representative fails or refuses to do so when ordered by the court, or if there is no representative then acting, the court, upon its motion or on application of any interested person, may appoint a special administrator to do so in his stead.
(f) A person named as executor in a will that has been denied admission to probate has no duty to file or support a petition under Section 8‑2.
(g) This amendatory Act of 1995 applies to pending cases as well as cases commenced on or after its effective date.
(Source: P.A. 89‑364, eff. 8‑18‑95.) |