In most cases, no, but there is an exception.
Probate cases are governed by the Probate Act of 1975 (755 Illinois Compiled Statutes Sections 5/1-1 and 5/4-1(a)) For a Will to be enforceable by Illinois courts, the Will must be executed by a competent testator (maker of the Will) who is of legal age. According to the Probate Act of 1975, the law specifically states “Every person who has attained the age of 18 years and is of sound mind and memory has power to bequeath by Will the real and personal estate which he has at the time of his death.”
Should the testator not be of legal age, the testator is referred to as a ward. A ward includes a minor or a person with a disability.
If the court finds that a Will was executed or modified after the person (testator) is adjudicated incompetent, then the Probate Act of 1975 creates a “rebuttable presumption” that the Will is void. A rebuttable presumption is an assumption made by a court that is taken to be true unless someone comes forward to contest it and proves otherwise.
The exception to this presumption was created in January 2016. The amendment enables the ward (minor or disabled person), or the guardian of the estate of the ward, to petition for a court order which would allow the ward to execute his/her Will. If such petition is brought by the ward, it must be accompanied by a physician’s report that specifically states the ward possesses testamentary capacity.
In summary, a Will would be void if executed by an adjudicated incompetent testator or minor. However, if the minor, or his guardian, petitions the court to allow him to execute his Will and provides a physician’s report that specifically states the ward possesses testamentary capacity, then the court will most likely hold such Will to be valid. Contact my firm for more information.
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