Probate, trust, guardianship and inheritance litigation
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Are No Contest Clauses Enforceable In Illinois?

Yes, no contest clauses are enforceable in Illinois.  This means that if a beneficiary brings an unsuccessful will contest, the beneficiary might forfeit their inheritance under the will or receive only a nominal inheritance.  However, an exception exists that allows a will contestant to keep their inheritance even though they unsuccessfully challenged the will if the will contest was brought in good faith.

What Is a No Contest Clause In an Illinois Will Or Trust?

A no contest clause (also known as an in terrorem clause) in an Illinois will or trust is a provision that provides that if a beneficiary under the will challenges the validity of the will, the beneficiary forfeits their inheritance.

What Is the Purpose Of a No Contest Clause?

The purpose of a no contest clause is to discourage baseless litigation challenging a decedent’s will.  A no contest clause in a will should incentivize would-be will challengers in Illinois to think long and hard before bringing a will contest.  If a will contestant does not have good cause to bring the will contest, they will lose their inheritance if the will contains a no contest clause and their will contest is unsuccessful.

If the possibility exists that the beneficiary will receive nothing, they are more likely to accept the terms of a will that leaves them something, even if they are disgruntled at not receiving more under the will’s terms.

Does a No Contest Clause Prevent a Will Contest?

No, a no contest clause does not prevent someone from filing a will contest under Illinois law.  Anyone with standing to pursue a will contest can do so.  However, the person challenging the will risks losing any inheritance left to them under the will if their will contest is unsuccessful and if the Illinois court determines that the will contest was not brought in good faith.

Good Faith Exception To Enforcement Of an Illinois No Contest Clause

In Illinois, a will contest brought in good faith, even though ultimately unsuccessful, will not bar the will contestant from receiving their share of the estate under the will.

For example, if the will contestant presents evidence that the decedent had diminished capacity, was isolated from family, and was persuaded to sign a new will in the last months of life, the Illinois probate court might determine that although the evidence did not rise to the level of invalidating the will, the evidence supported the pursuit of a will contest and did not trigger enforcement of the no contest clause.

Ultimately, the determination of whether the will contest was brought in good faith, and whether to enforce the no contest clause, is made by the Illinois probate court.  No contest clauses are construed strictly by Illinois courts, and so the action brought regarding the will must clearly fall under the prohibition of the no contest clause to trigger its application.

Case Study: No Contest Clause Void As Against Public Policy

In In re Estate of Wojtalewicz, the Illinois appellate court reviewed whether or not the conduct of a legatee in challenging the appointment of the executor of the estate violated the no contest clause in the will and if the clause should be enforced.  The court held that enforcement of the no contest clause in this case would contravene public policy and was therefore void:

Generally, conditions in a clause against contesting the will or attempting to set it aside are valid. (See Page on Wills § 44.29, at 469 (1962).) Even where they are held valid, though, conditions against contests are so disfavored by the courts that they are construed very strictly. (Page.) This view is guided by the well-established rule that equity does not favor forfeitures, and in construing conditions, both precedent and subsequent, a reasonable construction must be given in favor of the beneficiary. (See Oglesby v. Springfield Marine Bank (1962), 25 Ill. 2d 280, 184 N.E.2d 874; Clark v. Bentley (1947), 398 Ill. 53576 N.E.2d 438.) Nevertheless, the duty of the court in any will construction case is to ascertain from the words of the will the intention of the testator and give effect thereto unless the same is in violation of public policy or some rule of law. Weilmuenster v. Swanner (1949), 404 Ill. 2187 N.E.2d 756.

Enforcement of the intent of the testator as expressed by the plain language of clause seventh of the will would violate the law and public policy of this State. First, it would deprive respondent of his statutory right under section 6-3 of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 110 1/2, par. 6-3) to request the court to deny the appointment of the executor for the latter’s failure to initiate a proceeding to have the will admitted to probate within 30 days of acquiring knowledge of being named as executor in the will. It is undisputed that the executor took no action to admit the will to probate for nearly one year following the testator’s death. Respondent’s statutory right to contest the appointment of the executor for this breach of duty cannot be defeated by the wishes of the testator.

Second, it would violate public policy to give effect to the in terrorem clause since its enforcement would endanger the assets of the estate. Courts closely scrutinize an executor’s behavior to insure that the standards of fair dealings and diligence of an executor toward the estate are adhered to. (See, e.g., In re Estate of Glenos (1964), 50 Ill. App. 2d 89, 200 N.E.2d 65.) It is the duty of the executor to properly manage the estate and protect it from wilfull waste. (Glenos.) The respondent sought to deny the appointment of the executor on grounds that the executor’s lengthy period of inaction and his failure to file proper tax returns caused the estate to incur substantial penalties. The trial court found petitioner’s challenge to be made in good faith, yet denied his motion to deny appointment of the executor. In so ruling, the court stated that it would be advantageous to have the executor within the court’s jurisdiction in order *1064 to assess him personally with penalties and costs, should petitioner’s allegations prove to be true. The legatee has a right to express a feeling of hostility toward and an opinion of the executor “in any way, at any place, at any time” he sees fit, without being vulnerable to a charge that he directly or indirectly aided in the contest of the will. (Lavine v. Shapiro (7th Cir.1958), 257 F.2d 14, 19.) The petitioner, as a legatee under this will, cannot be terrorized into relinquishing his legacy by any threat of forfeiture. Otherwise, he would be forced to stand by silently while the executor jeopardizes the assets of the estate. We will not allow this result, because it permits the estate to be subject to waste and thereby diminishes the desired share of each beneficiary chosen by the testator under her will.

No Contest Clauses Can Be Valid In Illinois Trusts

In Ruby v. Ruby, the Illinois appellate court addressed a no contest in terrorem clause in a trust.  In Ruby, the parties sought construction of the Trust terms.  The Illinois court held that the no contest clause had no application in the case and that plaintiffs were within their rights to institute the proceedings to construe the Trust.

No contest clauses are disfavored by Illinois courts and are construed very strictly.  When considering a will contest, it is important to discuss the merits of your case with your Illinois probate attorney and consider the impact of any no contest clause in the will or trust you are challenging.

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