Ernie Banks' family has said they'll challenge his will, which was executed before Illinois' tough new Presumptively Void Transfers Act took effect.

On January 23, 2015, Chicago lost one of its most beloved sports icons, Ernie Banks. On October 17, 2014, Banks executed a new will. While it's not unusual for an individual to update a will, Banks's new will gave control of his estate to his 'caretaker,' Regina Rice. Banks' children and estranged wife, Elizabeth Banks, have announced that they intend to challenge the validity of the will.

The Presumptively Void Transfers Act does not apply

Had Banks executed his newest will on or after January 1, 2015, Illinois' new Presumptively Void Transfers Act (Pub. Act 98-1093) would apply to the dispute if Ms. Rice meets the "caregiver" definition. The statute amends the Probate Act of 1975, adding provisions for determining when a testamentary gift to a caregiver is presumptively void. 755 ILCS 5/4a-5 et seq.

"Caregiver" is defined to exclude family members of the transferor. It includes the family members of the caregiver. Id. § 5/4a-5(1). "Family member" is also defined under the statute. It means a spouse, child, grandchild, sibling, aunt, uncle, niece, nephew, first cousin, or parent. Id. § 5/4a-5(2).

It is worth noting that the definition of "transfer instrument" is rather broad. It includes wills and trusts, but also deeds, forms designated as payable on death, contracts, and other beneficiary designation forms. Id. § 5/4a-5(3). Under the Act, any transfer to a caregiver that exceeds $20,000 is presumptively void if challenged. Id. § 5/4a-10(a).

In his January 2015 Illinois Bar Journal article on the new law, Palatine estate planning attorney Jeffrey R. Gottlieb points out that caregiver gifts are aggregated under the act - a gift that appears to be less than $20,000 can exceed the threshold if beneficiary designations or other transfer documents are also executed by the testator. Jeffrey R. Gottlieb, A New Weapon Against Elder Abuse: Presumptively Void Transfers to Caregivers, Ill. B.J. (Jan. 2015). If a transfer is deemed presumptively void, the caregiver may elect to attempt to overcome the presumption, but must pay the costs and attorneys' fees for all parties if the attempt is unsuccessful. Id. § 5/4a-25.

The long history of will contests

As to the Ernie Banks will, Gottlieb says that even though Illinois has never had a presumptively void transfer statute before, "will contests have a long history in the law." A challenge to the Ernie Banks will would most likely involve seeking to invalidate the will due to undue influence allegedly asserted by Ms. Rice and/or due to Banks' lack of capacity to execute the will.

"Reportedly, his children say that he was impaired; his death certificate may indicate dementia," says Gottlieb. He believes that such a finding is not necessarily conclusive that Banks lacked capacity, because dementia involves a wide spectrum and an individual with dementia is capable of having lucid moments.

The basic legal standard is whether he had "the ability to know the nature and objects of his bounty." Essentially, does the testator know who his children are and does he generally know what he owns? "It is a fairly low standard," Gottlieb says.

Another option for Elizabeth Banks as Ernie's surviving spouse is to simply reject the will and take her statutory share of the probate estate, Gottlieb writes on his blog (http://www.illinoisestateplan.com/ernie-banks-and-the-illinois-disposition-of-remains-act/). However, he suspects that Banks' family will try to claim that Rice exerted an undue influence on Banks.

The pre-Act presumption of undue influence

Although the Presumptively Void Transfer Act does not apply to Banks' will, there is still a procedure for establishing a presumption of undue influence. In order for the Banks family to obtain the presumption, they must first establish that Rice had a fiduciary relationship with Banks. "That seems pretty obvious here," observes Gottlieb, noting that Rice was Banks' business manager and helped manage his affairs.

For the presumption to apply, the Banks family must also show that Rice was involved with procuring the will. For example, did she hire the attorney who drafted the will? The standard is whether Rice was "instrumental in procuring preparation of the will," a fact that is still unknown, according to Gottlieb. If the Banks family can establish the presumption of undue influence, the onus will be on Rice to rebut it. Establishing and rebutting the presumption is fact-intensive.

Had Banks' will been subject to the Act, the transfer to Rice may have triggered its provisions. Then Rice would have been forced to defend the will and commit to pay the legal fees of both sides if she was unsuccessful. The new "statute puts the ball in the caregiver's court," says Gottlieb.

He also finds it interesting that the Presumptively Void Transfer Act was signed into law in August 2014. "One could speculate that people knew the law was changing; it could have been a motivation to get the will done fast." Additionally, Banks' has a pour-over will - one where the will funds a trust that then disposes of the property. The beneficiaries of the Ernie Banks Declaration of Trust, which is also dated October 17, 2014, are unknown at this time, although Regina Rice is the sole trustee.

Gottlieb plans to continue covering the Banks will dispute on his blog. (Just how much of an estate Banks has left is also a subject of speculation.) In addition to his own interest in Banks, Gottlieb thinks there are some interesting legal issues in play. "Sometimes these cases can be close calls," he says.