The day before Eugene Lay died from lung cancer in January 2016, he allegedly signed a will that revoked his 1979 will. The new will left all of his assets to Delbert Miller. However, when Beverly Kelton, a legatee under the earlier 1979 will, challenged the 2016 testament, a judge in Kankakee County, Ill., granted Delbert Miller’s motion to dismiss based on alleged lack of statutory standing under Section 1-2.11 of the Illinois Probate Act.
Section 8-1(a) of the Illinois Probate Act authorizes attacks on the validity of a will by any “interested person,” as defined in Section 1-2.11. Failure to qualify as an “interested person” for a will contest amounts to a lack of standing that can be presented as an affirmative defense in a motion under Section 2-619(a)(9) of the Illinois Code of Civil Procedure.
Miller argued that Kelton was obligated to prove that she had standing because the 2016 will contained a revocation clause. Miller relied on the dicta in the Illinois Supreme Court case of Estate of Schlenker, 209 Ill.2d 456 (2004). In granting Miller’s motion to dismiss, the trial court also cited the Estate of Koziol, 366 Ill.App.3d 171 (2006), which involved the presumption that a missing will was revoked.