estate planninglegal analysiswills

Dueling Executors

By September 11, 2013No Comments

Frequently, I answer questions on Avvo about estate planning and related topics. A little while ago, someone asked a question about the validity of a will that was “poorly written” and disputes between co-executors. This article expands on that answer.

A will is considered invalid if its “formalities” are not followed. The formalities are that the will be signed by 2 credible witnesses while in the presence of a legally sound adult testator (person who makes the will) when he or she signed the will. So, Skyping or video signings are not allowed, at least in Illinois. In addition to being credible, witnesses must also be adults and “disinterested.” A disinterested witness is one who is not a beneficiary, either primary or contingent, under the will. If a potential beneficiary or the spouse of a potential beneficiary acts as a witness, then 3 witnesses should be used. Sometimes it is difficult to equally divide estate assets to an exact amount, which is why attorneys use “substantially equal” or “as equal as possible” with respect to distribution language.

OLYMPUS DIGITAL CAMERAPresuming a disputing co-executor has a copy of the will, the will’s terms should define how disputes between co-executors should be handled. If the will is silent on that issue, then a case of breach of fiduciary duty may exist because an executor, even if also a beneficiary, has an obligation to all of the beneficiaries, not just himself of herself. However, Illinois courts have started looking very closely at the terms of the instrument and the facts surrounding disputes. Additionally, courts are interpreting wills and trusts from a contractual perspective, going so far as to state one executor did not have a fiduciary duty. Thus, breach of fiduciary duty may now be a very difficult claim to successfully make.

A will is typically invalidated on grounds of undue influence, i.e., someone took advantage of the testator’s mindset while he or she was making the will, or other similar grounds. A validly executed but poorly written will is not a reason to invalidate the will as a whole. Even if a provision of a will is deemed invalid, a court will likely strike the provision as invalid but maintain the validity of the rest of the instrument.

Feel free to check out my Avvo answers on our website.

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