in terrorem clauses explained

No-Contest Clauses Explained | Illinois Wills and Trusts

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Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
Updated on
July 29, 2019

‍In this article, we will explain no-contest clauses in Illinois wills, and answer the question, “are no-contest clauses in wills enforceable in Illinois?”

What is a No-Contest Clause in an Illinois Will?

No-contest clauses, also known as in terrorem (“by way of threat”) clauses, are provisions in wills that provide that if a beneficiary of the will (“a legatee”) challenges the validity of the will, he or she will forfeit his or her inheritance or receive only a nominal inheritance.

The purpose of a no-contest clause is to prevent familial disputes after the creator of the will (the “testator”) passes.  No-contest clauses are intended to disincentivize probate litigation because the potential challenger to the will would be putting the inheritance that he or she is already receiving at risk. 

Do No-Contest Clauses Prevent Will Contests in Illinois Probate?

No-contest clauses do not actually bar potential litigants from contesting the validity of a will. They simply provide that if a legatee challenges the will and is unsuccessful, he or she will not receive any benefit he or she would otherwise be entitled to under the will.  

No-contest clauses tend to only be effective if the potential will challenger is set to receive a substantial benefit under the will before the challenge.  In the absence of a substantial benefit under the will that would be at risk if the challenger were to lose the will contest, the no-contest clause provides very little disincentive to challenge the will.  

Further, no-contest clauses are only effective if the will is challenged unsuccessfully.  If the will is successfully invalidated, the no-contest clause will not be effective.  

Are No-Contest Clauses in Wills Enforceable In Illinois?

The general rule is that no-contest clauses in Illinois wills are enforceable.  However, they are strictly construed by Illinois courts.  If they are ambiguous, they are interpreted in favor of the beneficiary challenging the will. 

Further, the case law in Illinois is somewhat unclear as to the extent that no-contest clauses are enforceable.  At least one Illinois court has set aside a no-contest clause where a will contest was filed in good faith.  A “good faith” reason for a will contest is one that goes to the validity of the will itself (such as undue influence or lack of testamentary capacity), as opposed to the manner in which the estate is distributed. ​

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