When Do Clauses In A Will Become Legally Effective?

No part of a will can become effective until the will is successfully probated.

Facts: 

  • In July 2013 a man named John Schumann passed away.
  • In March 2014, Mary Herren, Mr. Schumann’s caretaker and holder of his power of attorney, requested the court to allow her to probate a will that John executed back in October of 2007.
  • The will appointed Mary the caretaker to carry out the provisions of that will.
  • The will stated that Mr. Schumann’s entire estate was to be administered according to the terms of his trust and bequeathed to the trustee.
  • The will also explicitly revoked “all prior wills”.
  • Mr. Schumann’s widow’s children contested the will in 2007, arguing that Mary the caretaker exerted undue influence over Mr. Schumann when he created his will.
  • The children also contested that Mr. Schumann lacked the capacity to execute his will in 2007.

At issue in these set of circumstances was whether children have standing as legatees because Mr. Schumann’s will executed in 2007 revoked a prior will that was created by Mr. Schumann in 2002, benefiting the children.

  1. According to the Illinois Probate Act, a person has standing if that person has a financial interest, property right, fiduciary status in the estate, legatee, creditor, or a person entitled to award.
  2. Mr. Schumann executed, in total, 4 wills during his life. In his last will, he did not leave anything behind for the caretaker.
  3. Mary the caretaker failed to prove that the children lacked standing to contest the will and the ball was in her court to meet the burden of proof. The children’s petition to contest the 2007 will showed that they were legatees.
  4. The judge stated that it has been fundamentally ruled in previous cases that an heir or legatee unconditionally has standing to contest a will. The clause in Mr. Schumann’s will revoking all prior wills does not become effective until that will is successfully probated. Thus, no part of a will can become effective until the will is successfully probated.

 

In Re Estate of John Schumann, 2016 IL. App. (4th) 150844 (November 3, 2016)

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