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Should you include a no-contest clause in your will?

On Behalf of | Jul 21, 2022 | Estate Planning

When you execute a will, your hope is that your final wishes will be carried out. No one wants to think of their will being challenged in probate, with infighting among their beneficiaries. To prevent such turmoil, you may consider including a no-contest clause. But will it work?

What is a no-contest clause?

Also known as an in terrorem clause, the purpose of a no-contest clause is to make someone think twice before challenging a will. The provision states something to the effect that if a beneficiary does challenge the will, they are automatically disinherited.

Illinois does not have a specific law in place authorizing no-contest clauses. Instead, they are recognized judicially and previous court decisions favor their enforcement. It’s important to note that courts will only enforce the letter of a no-contest provision—if it’s too vague, a court may not enforce it at all.

There are limitations

The first weakness of a no-contest clause is that it is only effective against beneficiaries who are named in the will. Someone who does not already stand to inherit has nothing to lose by challenging the will and the provision will not dissuade them.

Another limitation is that courts will permit challenges by beneficiaries if the challenge is brought in good faith. So, while a no-contest clause may prevent frivolous challenges by beneficiaries, if there is a legitimate concern that something is wrong with the will and a challenge is made on that basis, courts will not enforce the provision.

A no-contest clause may be a valuable addition to your will but it must be drafted properly. Seek the assistance of a professional who is experienced in Illinois estate planning and probate law to ensure your will has the best chance of achieving your goals.