Is a “No Contest” Provision in a Will Enforceable?
In TeRROREM CLAUSEs
A no contest, or in terrorem clause, is a provision in a will or trust which is designed to threaten anyone from challenging the validity of the document. These types of provisions generally provide that in the event that someone challenges the validity will or trust then that person is deemed to have predeceased the Decedent. In other words, if they challenge the will they forfeit any right to recover from the will.
The general rule is that this type of no contest provision is valid is under Illinois law. However, no contest provisions are often held unenforceable against public policy. When a court examines the enforceability of a no contest provision the court construes the clause strictly, and guided by the rule that equity does not favor forfeitures, they construct conditions in favor of the beneficiary.
In examining the application of a no contest provision, the court does not only look at the plain language of the provision. Instead, court will look beyond the language of the clause and the parties’ conduct and instead focus on whether, under the particular facts and circumstances of this case, application of the clause to the conduct would be contrary to the law or to the public policy of Illinois.
If an heir is cut out of a will or trust they generally have the right to contest the document and ask the court to void that document. lllinois law does allow the inclusion of no contest provisions which could potentially strip the disgruntled heir of the right to challenge the will. However, the court will examine each no contest provision and construe its language strictly in favor of the heir who was cut out of the will.
If you believe that you were excluded from a will or trust and are considering challenging a document which contains a no contest provision, you need to consult with a qualified estate litigation attorney as soon as possible. The experienced Chicago estate litigation lawyers at Hays Firm LLC have helped many individuals through the process of challenging a will or trust which contained a no contest clause. Please feel free to contact us anytime to discuss how we can help.