No one likes the idea of their family tearing itself apart with lawsuits and will challenges after they are gone. That’s why many Illinois residents who create their wills insist that their attorneys include a no-contest clause, in an attempt to force their family members to honor the will as written and avoid bringing a challenge. How do courts typically respond to these types of clauses? Are they even enforceable?
The enforceability of the clauses
A no-contest clause (also known as an in terrorem clause) is a provision of a will that states that, if any beneficiaries to the will challenge the will’s terms, validity or authenticity, their share of the estate is reduced to zero. These clauses are useful for discouraging will contests when the testator knows that they are likely to occur.
The Illinois legislature has never passed a statute that forces Illinois courts to recognize no-contest clauses. Thus, it’s technically within the discretion of each judge.
However, the precedent from cases where the topic has come up in court shows that Illinois judges tend to enforce them as written – unless a certain exception applies.
The good faith exception
It’s possible that a judge will decide not to enforce a no-contest clause against you if you have a real, good faith reason for bringing a contest to the will. In other words, they’ll likely enforce the clause if you just don’t like the outcome of the asset distribution, but they may choose not to enforce it against you if you have a legitimate reason for your contest.
These good faith reasons for challenging a will include things such as if you have a concern about undue influence on the testator, if you think the will was fraudulent or if you think there is another, more recent version of the will than the one currently in probate.
No one likes the idea of going to court over the will of a loved one, but unfortunately sometimes there is no other option. Before you decide to bring your will challenge, however, make sure you know whether the will has a no-contest clause in it or not, so that you know what you’re up against.
