Can the Doctrine of Elections prevent a will contest? 3 Answers as of May 11, 2016

Grandchildren, who are heirs, received $2,500 in proceeds from a will in Illinois, although they were not named beneficiaries. This money was given to them in memory of their mother, who passed away. Afterwards, they received the will and trust docs, per their request, which showed that only the children were named as beneficiaries. Now that they know what is in the will, they want to file a will contest. Must they first return the $2,500 prior to filing a will contest? In other words, should the doctrine of elections be pursued as a defense in this case? What are the chances that the doctrine of elections is effective to thwart this matter? At what point in the will contest can this be done?

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Law Office of T. Phillip Boggess | T. Phillip Boggess
The language of the trust and will prevails as to the distribution. Typically, you will have to look at the distributions to see if they were per stripes or anything else in there that says the deceased mother's share should go to her children.
Answer Applies to: Illinois
Replied: 5/11/2016
Shimberg and Crohn, P.C. | Jonathan Shimberg
I doubt that the concept of election is effective. One elects to accept the benefit of the will. If they were receiving a bequest from the will and received the $, then election might apply, but acceptance of a gift not in the will - they did not elect anything.
Answer Applies to: Illinois
Replied: 5/11/2016
Ashcraft & Ashcraft, Ltd.
Ashcraft & Ashcraft, Ltd. | Randall C. Romei
The Doctrine of Elections could be used as a defense to a Will contest, however, this does not fit neatly into the Doctrine of Elections. Since the grandchildren were not beneficiaries under the Will the payment was not authorized by the Will. The payment was in the nature of a gift from the beneficiaries not from the probate estate and would not necessarily mean an acceptance of the Will. A defense is raised when a claim or action is presented. You should review the facts with an attorney to determine the likelihood the defense would be effective.
Answer Applies to: Illinois
Replied: 5/11/2016
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