Illinois Appellate Court Upholds Will Despite DIY Drafting, Missing Copy and Caregiver Challenge

A recent Illinois appellate decision illustrates just how complicated a will contest can become when a will appears under unusual circumstances after someone dies.

In In re Estate of Miller, 2026 IL App (1st) 251314, the First District Appellate Court considered a will that was prepared using a home computer program, was discovered after the decedent’s death, left nearly the entire estate to a person who had helped care for him, and could not be matched with the second copy that supposedly had been left in the decedent’s home.

A family member challenged the will as a forgery and argued that the inheritance to the caregiver was the product of undue influence. The appellate court nevertheless upheld the will.

The case also addressed an important procedural issue: when is it too late to ask for a substitution of judge as a matter of right in a will contest?

The decision provides several important lessons for Illinois families, and for anyone who is considering using a do-it-yourself will.

What Happened in the Miller Estate?

Michael Miller died in March 2021. His niece, Michelle Zwerling, was his only living heir. She was unaware that Miller had executed a will, so she opened an estate believing that he had died intestate, without a will.

Approximately two months after Miller’s death, a will surfaced.

The will had been prepared by Miller’s longtime friend, Michael Patoff, using a home computer and a will-creation program. According to the testimony credited by the trial court, Miller had asked Patoff to help him create a will around Christmas 2020. Patoff entered Miller’s answers into the computer program, and the two discussed Miller’s wishes over several days.

The will left virtually Miller’s entire estate to Patricia Kahn, a longtime friend who had helped him with errands and other tasks as his health declined. It named Kahn as executor. The only specific gift to anyone else was a gift of plumbing tools.

Kahn testified that she did not know the will existed until after Miller’s funeral. Patoff testified that he contacted Kahn after Miller’s death and told her about the will.

That unusual sequence of events immediately raised questions.

The Family Member Challenged the Will

Zwerling questioned whether the will was genuine.

Among other things, she pointed out that:

• The will was not discovered until approximately 64 days after Miller’s death.
• The computer used to prepare the will was no longer available.
• A second copy that was supposedly left with Miller could not be located.
• The will contained handwritten corrections.
• Some names were misspelled.
• Zwerling believed the signature did not look like Miller’s more recent signature.
• The date on the document appeared to have been altered.
• The will excluded Miller’s only living heir while leaving virtually everything to Kahn.

Zwerling therefore challenged the will as a forgery and also argued that it was the product of undue influence.

These are exactly the types of circumstances that can lead to a will contest in Illinois.

But suspicious circumstances do not automatically establish that a will is invalid.

A DIY Will Is Not Automatically an Invalid Will

One of the more interesting aspects of Miller is that the will was not prepared by an attorney.

Patoff testified that he and Miller used a home computer and a will-creation program. Patoff essentially acted as Miller’s assistant, asking questions generated by the program and entering Miller’s answers.

That fact alone did not make the will invalid.

The trial court heard testimony from Patoff and his wife, who both testified that Miller participated in creating the document and personally signed the wills in their presence. The trial court found their testimony credible.

The appellate court deferred to those credibility determinations.

The appellate court also noted that the trial judge personally compared Miller’s signature on the will with signatures appearing on other documents and found them sufficiently similar.

The lesson is important:

A homemade will is not necessarily an invalid will simply because an attorney did not prepare it.

At the same time, Miller should not be interpreted as an endorsement of DIY estate planning.

A professionally prepared estate plan can help establish a much clearer record concerning:

• who prepared the documents;
• what the client’s wishes were;
• who was present during execution;
• whether the client understood the plan;
• why particular beneficiaries were included or excluded;
• whether a person receiving a substantial inheritance participated in the planning;
• where the original documents are stored; and
• whether subsequent changes were made properly.

Those details can become extremely important if the estate plan is challenged years later.

The Missing Original Did Not Automatically Destroy the Will

Another unusual feature of Miller was that the second copy of the will could not be located.

Zwerling argued that the missing copy supported her position that the will had been forged or revoked.

The courts did not agree.

The trial court found that the testimony concerning the execution of the will was credible and that there were plausible explanations for why the second copy could not be found. The appellate court emphasized that it was not enough for the contestant to present evidence that was consistent with forgery. The evidence had to make the opposite conclusion, that the will was genuine, clearly unreasonable.

The appellate court therefore upheld the trial court’s finding that the will was genuine.

This illustrates an important distinction in a will contest:

Suspicious circumstances can create questions without necessarily providing enough evidence to invalidate a will.

The credibility of witnesses can be extremely important.

The Caregiver Issue Was More Complicated

The most significant substantive issue for estate-planning purposes may be the challenge based on undue influence and Illinois’ caregiver presumption.

Illinois law provides a special protection when a caregiver receives a substantial transfer from the person receiving care.

Under section 4a-10 of the Illinois Probate Act, there is a rebuttable presumption that a transfer instrument is void when the transferee is a caregiver and the fair market value of the transferred property exceeds $20,000. A will qualifies as a “transfer instrument.”

The statute defines a caregiver as someone who voluntarily or for compensation has assumed responsibility for all or part of another person’s care when that person needs assistance with activities of daily living.

But there is an important second part of the statute.

The presumption can be overcome by clear and convincing evidence that the transfer was not the product of fraud, duress, or undue influence.

In Miller, Zwerling argued that Kahn qualified as Miller’s caregiver and therefore that the will should be presumed invalid.

The trial court disagreed that Kahn was a “caregiver” within the statutory definition. Kahn had helped Miller with things such as transportation, groceries, banking and medication, although nurses also came to Miller’s home to provide medical care.

The appellate court did not definitively resolve the broader question of exactly where the statutory definition of “caregiver” begins and ends.

Instead, it held that even if the statutory presumption applied, the evidence was sufficient to rebut it.

Why?

The evidence credited by the court showed that Miller himself initiated the process of creating the will. Kahn was not involved in preparing it, did not know about it when Miller died, and apparently did not learn of the will until after the funeral.

The appellate court therefore agreed that there was no sufficient evidence that Kahn had procured or influenced the will.

Being a Caregiver Does Not Automatically Make a Gift Invalid

This is an important point for Illinois families.

The caregiver statute creates a rebuttable presumption. It does not mean that every gift to someone who helps an elderly or disabled person is automatically invalid.

The circumstances surrounding the transfer matter.

For example, questions may arise about:

• Did the caregiver participate in preparing the estate plan?
• Did the caregiver recommend the attorney?
• Did the caregiver drive the person to the attorney’s office?
• Did the caregiver provide information to the attorney?
• Was the caregiver present during meetings?
• Did the caregiver select the beneficiaries?
• Did the caregiver isolate the person from family members?
• Did the person independently express the desire to benefit the caregiver?
• Was the estate plan consistent with earlier expressed wishes?
• Was the person capable of understanding the estate plan?
• Did the beneficiary know about the plan before it was executed?

Miller demonstrates why these facts matter.

The court was persuaded by evidence that the person receiving the inheritance was not involved in procuring the will and did not even know that it existed when the decedent died.

That is a very different factual situation from a caregiver who arranges a new will, accompanies an incapacitated person to the attorney, and receives the bulk of the estate shortly afterward.

The Case Also Contains an Important Procedural Lesson

Miller was not only about whether the will was valid.

It also addressed a motion for substitution of judge as a matter of right.

Under Illinois law, each party generally has one substitution of judge without cause as a matter of right. But the request must be timely. The statute requires the motion to be made before trial and before the judge has ruled on a substantial issue in the case.

In Miller, Zwerling waited until several years into the litigation before seeking substitution.

She argued that the judge had not yet ruled on a substantial issue in the will contest.

The appellate court disagreed.

The judge had previously conducted the formal-proof proceeding and admitted the will to probate. The appellate court held that this was a ruling on a substantial issue because it directly addressed the merits: the judge had determined that the proponent had presented sufficient evidence to establish the validity of the will.

Consequently, the later request for substitution was untimely.

Formal Proof of a Will Matters

Illinois law provides a mechanism for an interested person to demand formal proof of a will rather than simply allowing it to proceed through the ordinary admission process.

Under section 6-21 of the Probate Act, an interested person entitled to notice may petition for formal proof within the statutory period. At that hearing, the proponent must establish the will through competent evidence.

The Miller decision makes clear that this proceeding is not merely an administrative formality when determining whether a later substitution of judge is timely.

The admission of a will to probate is a ruling on the merits for purposes of the substitution statute, even though an interested person may subsequently file a will contest.

That distinction is important for attorneys handling contested estates.

A Will Contest Must Be Properly Pleaded

Perhaps one of the most practical lessons from Miller is the importance of pleading the grounds for the will contest carefully.

At trial, Zwerling argued that Miller had revoked the will.

But her petition contesting the will did not actually plead revocation as a separate ground.

The appellate court held that she could not obtain relief on that theory because a will contestant is limited to the grounds alleged in the pleading. The fact that the missing second copy of the will might have been relevant to revocation did not cure the failure to actually plead revocation.

Interestingly, the appellate court reached a different conclusion regarding the caregiver theory.

Although Zwerling’s petition did not cite the specific statutory section, it alleged that Miller was ill, that the will left his estate to his caregiver, and that the will appeared to be the product of undue influence.

The appellate court found that those allegations were sufficient to put the statutory caregiver presumption at issue.

For anyone involved in probate litigation, the lesson is straightforward:

Do not assume that an issue will be available for trial simply because evidence concerning it exists. The grounds for contesting a will need to be properly pleaded.

What Does the Miller Decision Mean for Illinois Families?

The Miller decision does not mean that a suspicious will should simply be accepted.

Instead, it demonstrates that will contests are highly fact-specific.

Illinois law gives interested parties the ability to challenge a will, generally requiring a petition to contest the admission of a domestic will within six months after the will is admitted to probate.

But successfully challenging a will requires more than showing that the estate plan is unusual or that a family member received less, or nothing, under the will.

The evidence matters.

Miller also provides several estate-planning lessons:

1. Keep the original will in a secure, known location

A missing original can create unnecessary questions after death. Your family should know where the original estate-planning documents are located and how to access them.

2. Be cautious about DIY estate-planning documents

A DIY will may be legally valid, but it may leave more questions about execution, intent, changes to the document, and the circumstances surrounding its creation.

3. Document major changes in an estate plan

If a person dramatically changes an estate plan late in life, particularly to benefit someone who provides care, a clear record of the person’s independent wishes can become extremely valuable.

4. Minimize beneficiary involvement in the planning process

When possible, the person receiving a substantial inheritance should not be the person directing the estate-planning process.

5. Consider the caregiver presumption

If an elderly or disabled person wants to leave a substantial portion of an estate to someone who provides care, the potential application of Illinois’ caregiver-transfer rules should be considered before the estate plan is finalized.

6. Don’t wait to address a suspicious will

Illinois imposes deadlines for challenging a will. Waiting too long can result in losing the opportunity to contest it.

The Bottom Line

In re Estate of Miller is a reminder that an unusual estate plan is not necessarily an invalid estate plan.

The will in this case was prepared using a home computer rather than by an attorney. It contained handwritten corrections, included questionable dates and misspellings, could not be located in the decedent’s home, and left virtually the entire estate to someone who had helped care for him.

Those facts raised legitimate questions.

But after hearing the evidence, the trial court found the witnesses supporting the will credible. The appellate court concluded that the evidence did not establish that the will was a forgery and that, even assuming the caregiver presumption applied, there was sufficient evidence to rebut it.

The case ultimately shows why good estate planning is about more than simply signing a document. Creating a clear record of a person’s wishes, properly executing and storing the original documents, and periodically reviewing an estate plan can help reduce the uncertainty and litigation that families sometimes face after a death.

If you have questions about your estate plan or a probate matter, contact the Law Office of Jonathan W. Cole P.C. at (708) 529-7794 Your Neighborhood Law Firm.