Taxation & Estate Planning

Contesting a Will: The Limitations Period

By Joel A. Schoenmeyer

Article 8 of the Illinois Probate Act discusses how to contest the validity of a Will. Section 8-1 states that a Will can be contested by filing a petition "[w]ithin 6 months after the [Will's] admission to probate...." That's a bright line rule, and one that can cause problems for people who miss the deadline. A couple of recent cases discuss the ramifications of the rule, and whether there are exceptions:

1. Estate of Ellis. I blogged about the 1st District Court of Appeals's decision in this case back in 2008, here. The case subsequently went to the Illinois Supreme Court, which reversed the 1st District. In doing so, the Illinois Supreme Court (here) said that Shriners Hospital could go forward with their tort claim of "intentional interference with an expectancy of inheritance." A lot of the allegations in that type of tort claim are similar to the allegations you make when you seek to contest a Will (such as "undue influence"). The 1st District focused on that point, and said that the 6-month limitations period should apply.

Why did the Supreme Court disagree? I think it was due to the very sympathetic facts of the case. The Shriners Hospital is a charitable group, and they didn't file a Will contest within the 6-month period because they didn't know they had standing to do so (they didn't know they'd been named as beneficiaries under a prior Will of the decedent until 3 years after the decedent's death).

2. So, does the Supreme Court's above decision mean that potential litigants who miss the period for contesting a Will can always go forward with a tort claim of "intentional interference with an expectancy of inheritance"? Maybe not, if we consider the 2nd District's decision in the Fitch case (here). That case specifically rejects the plaintiff's attempt to invoke the Supreme Court's decision in Ellis, distinguishing between Ellis and the Fitch case as follows:

a. In Ellis, Shriners Hospital didn't know of its interest under the prior Will until after the 6-month period passed. In Fitch, the plaintiffs were immediately informed that the Will had been admitted to probate.

b. In Ellis, Shriners Hospital's claim had something to do with an issue other than the Will (in part, it related to transfers made by the decedent prior to death). In Fitch, the plaintiffs' claims are all based around the idea of undue influence leading to gifts in the decedent's Will and trust.

So what is the lesson to take away from these two cases? I think the main point is: act quickly. All too often I receive calls from clients who want to contest the Will of someone who died 2 or 5 or even 10 years ago. As more time passes, your chancees of winning your case (or even getting your day in court) diminish.

Full post as published by Death and Taxes Blog on June 08, 2010 (boomark / email).