Illinois Wills and Trusts – The Use and Limitations of No Contest Clauses

Web Admin - Wednesday, May 24, 2017
Grief from losing a loved one can cause irrational behavior in even the most level-headed of people. When an inheritance is factored into the equation, arguments between family members can become downright volatile. In some cases, things can become so explosive that it irreparably damages relationships. This risk is why many people choose to create wills and trusts; they want to reduce the possibility of family strife. Unfortunately, it does not always work. Miffed family members can still contest a will or trust. An in terrorem provision may help. 

In Terrorem Provisions

An in terrorem provision, or a no contest clause, is sometimes used to discourage the contesting of a will or trust. It specifies that an heir may either lose their inheritance or receive only a nominal amount of money if they contest the validity of their loved one’s will or trust. Unfortunately, it is not always enough of a deterrent, and contests are still possible. 

Contests Can Still Occur

You can take all the right steps and put all the protective provisions in place, but you still cannot completely control what family members do once you are gone. Some may still contest the will, fully knowing they are at risk of losing their inheritance. Granted, individuals with smaller inheritances are far more likely to do so, but even those with a substantial amount to lose may consider the risk worth their potential gain. In some cases, that gain may not even relate to the inheritance; it could, instead, relate to getting “even” with a family member. 

Enforcement of No Contest Clauses in Illinois

An in terrorem provision is not much of a deterrent if it is not enforceable. Unfortunately, the law in Illinois is rather vague when it comes to the enforceability of no contest clauses. At least one court has overruled a no contest provision, stating that the contest was filed in good faith. However, that does not mean that all no contest provisions will be thrown out. Assistance from an experienced attorney can decrease the risk of language issues in your will or trust. As a result, your wishes are more likely to be honored by both your loved ones and the courts. 

Contact Our Arlington Heights Wills and Trusts Attorneys

If you fear family members may try to contest your will or trust and want to reduce the risk with an in terrorem provision, contact Drost, Gilbert, Andrew & Apicella, LLC for assistance. Experienced and dedicated to preserving your estate, our Arlington Heights wills and trusts lawyers will carefully examine your situation to help you develop a creative and comprehensive solution. Schedule your consultation by calling 847-934-6000 today.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.


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