The Validity of No-Contest Clauses in Wills

The Validity of No-Contest Clauses in Wills

Provided By: Alan G. Orlowsky

Some families seem to live together harmoniously and resolve all disputes and disagreements amicably. Other families seem ready to attack one another upon the slightest of provocations. Individuals with families that fall more into the second category often worry about what might happen after they die. Will contentious and costly legal battles be waged by one family member against another over trivial matters? Will the decedent be remembered as favoring one side of the family over another due to the way the decedent structured his or her estate plan? As a means of addressing these fears, individuals needing to create an estate plan but whose family members are prone to argument may include a “no-contest clause” within their wills.

What is a “No-Contest Clause”? 

A no-contest clause is a provision in a will that specifically and expressly disinherits any heir or beneficiary who challenges any provision of the person’s will. For example, suppose a mother creates a will with a no-contest clause because her two sons always appear to be fighting. When the mother passes, the brothers discover that their mother’s will left substantially more assets to the younger brother than to the older brother. Enraged, the older brother files a lawsuit to challenge the manner in which his mother’s estate is distributed and challenges the admission of the will to probate. In this situation, the no-contest clause could be used to completely disinherit the older brother so that he would receive no inheritance at all.

Are No-Contest Clauses Enforceable?

No-contest clauses are generally permissible and enforceable, so long as the terms used to create the clause are clear and unambiguous. The language used should clearly indicate your wish to create a no-contest clause and disinherit any heir or beneficiary (or both) that brings any challenge (or only certain specific challenges) to your will after you die. Because it is important to use precise language when crafting these provisions, you may wish to have an experienced Illinois estate planning attorney create your will and include this provision within it.

A No-Contest Clause Does Not Prevent All Fights 

Even if your no-contest clause reads as if you wish to disinherit any heir or beneficiary who challenges the validity of your will and this phrase is clearly stated, a court may choose not to enforce such a clause if it finds an heir or beneficiary had a good faith reason to challenge your will. A “good faith reason” is generally one that goes to the validity or authenticity of the will itself (such as whether the testator had capacity to make the will at the time when he or she did). Conversely, the clause may be enforced where an heir or beneficiary challenges the specific manner in which the decedent’s estate is distributed (for instance).

Orlowsky & Wilson, Ltd. is a Chicago estate planning law firm helping individuals craft wills, trusts, and other estate plans and estate planning documents so that their final wishes are honored and respected after they are gone. Our firm assists clients in Skokie, Northbrook, Glenview, Glencoe, Evanston, and Highland Park with their estate-planning needs. Contact our firm today for assistance. You can reach our office by calling (847) 325-5559 or by completing our online contact form.

 

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