Estate Planning, Probate & Elder Law Attorneys

» Pleading Requirements in Will Contests, and Why Litigation Is So Expensive

Clients often ask me, "why is probate litigation so expensive?" The main reason is that the law tends to behave like an unruly beast. Some questions posed to me are easy to answer -- if you want to know the requirements for executing a valid Will in Illinois, I can give them to you. But other questions are much more difficult to answer.

Take, for instance, pleading requirements for a Will contest. Most Will contests include allegations of lack of testamentary capacity (the person who signed the Will didn't know what he or she was doing) and undue influence (someone "forced" the person who signed the Will to do it). As you might imagine, there's a lot of proof required to win a Will contest -- that's as it should be. But what about getting in the door, and being allowed to prove your case through discovery, etc.? The first step in a Will contest is the filing of a petition. The second step in almost every Will contest is for the other side to file a motion to dismiss the petition, on the grounds that it "failed to state a claim for which relief can be granted."

There is no magic book to turn to in order to find out whether a petition will survive a motion to dismiss. Instead, attorneys have to look to caselaw:

Lack of Testamentary Capacity

Two very old cases -- American Bible Society v. Price and Anlicker v. Brethorst -- suggest that pleadings for lack of testamentary capacity don't have to be very in-depth. But then there's this curious Estate of Sutera case from the 1st District in 1990. It seems to suggest that conclusory statements are insufficient, but it's hard to tell. On the one hand, a very well-known book on Illinois probate states that Sutera does not apply to the issue of testamentary capacity generally, but applies only in cases where the petition includes allegations of an "insane delusion." At least one subsequent court case implies the same thing. But Sutera never mentions the phrase "insane delusion"!

That being said, my experience in court has been that judges still view American Bible Society and Anlicker as setting forth the law on pleading lack of testamentary capacity. But I suppose it depends in large part on how the attorneys frame their arguments, and the judge's take on the caselaw. It is, however, an attorney's job to make sure he or she understands and can argue for or against any of the cases that may come up at the hearing on this issue. And reading and understanding cases takes a LOT of time.

Undue Influence

Undue influence requires more in-depth pleading, but there appear to be (again, "appear to be," since there's no answer set in stone) two ways to approach it:

1. You need to make a "specific recital of the manner in which the free will of the testator was impaired." OR

2. You need to show that the person you are accusing of undue influence had a fiduciary relationship with the person who signed the Will (aka the Testator), that the Testator depended on the person and reposed trust in the person, and that the person "prepared or procured" the Will.

Of course, no case says the above, and clearly indicates that you have two paths to take in proving undue influence for motion to dismiss purposes. Again, this is something of which the petitioning attorney must convince the judge.

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» Will Contests and Philip Roth's The Ghost Writer

I recently finished reading Philip Roth's The Ghost Writer, which is the first book in his Zuckerman trilogy (or trilogy and epilogue, as I guess it's now known, since it contains four books and Roth evidently doesn't like the word "quartet"). It's a short but engaging work about a young novelist (Nathan Zuckerman) who pays a visit to a very well-respected older novelist (E.I. Lonoff).

Interestingly enough, one of the central conflicts of the book involves a fight between Zuckerman and his father over one of Zuckerman's short stories, which focuses on a will contest. According to Zuckerman, the story was based on the following facts:

A great-aunt of mine, Meema Chaya, had left for the education of two fatherless grandsons the pot of money she had diligently hoarded away as a seamstress to Newark's upper crust. When Essie, the widowed mother of the twin boys, attempted to invade the trust to send them from college to medical school, her younger brother, Sidney, who was to inherit the money remaining in Meema Chaya's estate upon conclusion of the boys' higher education, had sued to stop her.

Zuckerman's father objects to the story, on the grounds that it airs the family's dirty laundry and (more importantly) portrays Jews in an unfavorable light.

Not to take the fun out of the novel, but the whole fight over Meema Chaya's estate could have been avoided if she had clearly defined "education" to include (or exclude) graduate and/or professional school.

» Cook County Probate Procedure Changes

A couple of things involving probate in Cook County that have changed recently (or maybe I just became aware of):

1. Fee increase. It now costs $304 in fees to open a probate estate worth more than $15,000, up from $279. The entire fee schedule can be found here (as a PDF).

2. Cover sheet. One procedural thing that needs to be done when you go to file your petition to open an estate: completing a probate division cover sheet. I don't know why it's needed, but it is -- the form is here (again, as a PDF).