Common Law Doctrine of Election in Illinois

Robert S. Held (attorney, Chicago, IL) recently published his article entitled Refuse the Bequest or Lose the Will Contest:  The Unforgiving Doctrine of Election, 98 Ill. Bar J. 374 (July 2010).  The introduction is below:

Illinois has adopted the common law doctrine of election, which prevents a beneficiary from accepting benefits under a will and then challenging that same document. Typically, returning the bequest, or offering to do so, will not cure the problem.

As such, accepting even a token bequest left under a decedent’s last will bars a beneficiary from challenging that will, even though a prior will may have provided a significant legacy to the beneficiary. Although not yet addressed in Illinois, the doctrine of election almost certainly applies not only to wills but to bequests from trusts as well.

Accordingly, you must immediately advise your client that any bequest must be refused if the beneficiary intends to pursue a challenge to the estate plan. Such challenges usually take the form of an allegation that the decedent did not have capacity at the time of execution of the estate plan or was unduly influenced to execute the plan.