Contesting a Will and Statutes of Limitations

Over the weekend I received an e-mail from a reader in Missouri, asking about time limitations and Will contests.  In Illinois, the rule is as follows:

Within 6 months after the admission to probate of a... will... any interested person may file a petition in the proceeding... to contest the validity of the will.

This rule is found in §8-1(a) of the Illinois Probate Act (755 ILCS 5/8-1).  Section 8-1(f) of the Illinois Probate Act applies the same rule to "[a]n 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."  The practical upshot of these rules is fairly simple: if you don't file your Will or trust contest within the six-month period after the Will is admitted to probate, then your action is barred.

According to the reader (whose information I haven't verified), Missouri has the same six-month rule.

Basically, the reader wondered if the setting of a time limitation on a Will contest could "allow self interested parties... to cover up or not disclose something until after the deadline to contest has passed.  What protection is there in place should something substantial arise after the deadline has passed that [had it been known prior to the deadline] would have warranted filing a Will contest[?]"

Statutes of limitations are employed in probate because there's a public policy in favor of the speedy and orderly administration of estates.  Basically, the legislature has decided that we don't want a situation where the administration of a testate estate is completed (including the distribution of property to the Will's beneficiaries) and then, 2 -- or 5 or 10 -- years later, someone tries to undo that administration by filing a Will contest.  Not having a time limitation for Will contests could wreak havoc with our courts and with beneficiaries (who could potentially have to refund their inheritances). 

Of course, as the reader implies, having statutes of limitations for Will contests means that a person could be robbed of his or her inheritance if he or she doesn't file a Will contest within the six-month time period, and then discovers facts that suggest such a contest would have been successful.   Are there any ways of preventing this?  I can think of only one piece of advice:

BE VIGILANT

If you think someone is taking advantage of an elderly relative or friend, or think an elderly relative or friend can't make decisions for himself or herself anymore, do something about it. Besides producing good karma, spending time with an elderly relative or friend means that you should be able to tell if the person is incompetent or being unduly influenced, enabling you to get them help during their life.  If, after a person's death, you assert for the first time that the decedent wasn't able to make his or her own decisions or was being controlled by a third party, you will likely run into proof problems.  There's also a good chance that (fairly or unfairly) the attorney for the other side will attempt to portray you as greedy.

Comments

[Gary Harrelson]

I live in missouri my mother passed away 1/27/2006 in her and my step fathers will was a codicil statting that neither party on surviving the others death could buy,sel or trade any real propertys or assets of the other designated for the surviving children.My step father has already began liquidating all my mothers accounts and realistate holdings in both california and missouri without regard to her will the codicil for any of the benificiarys.In some instances the will seems invalid since both realistate and personnel property have been traded sold and even given away without any consent or notification to the airs is this legal??