When To Include An “in terrorem” Or A No Contest Clause In Your Will Or Trust

  • Estate Litigation
when to include an in terrorem or a no contest clause in your will or trust | estate and probate legal group

You may have spent much time deciding how to leave your assets to your family and loved ones. And you want your last wishes to be carried out as you outlined them in the will or trust. But what if one or more of your beneficiaries feels the will is wrong? Either they deserve more, or someone else deserves less? You can include an in terrorem or a no contest clause to deter anyone from challenging your will or trust.

What Is in terrorem Or A No Contest Clause?

An in terrorem clause is a provision in a will or trust that states that if a beneficiary challenges the will or trust, they could forfeit their inheritance. You can add this clause to discourage frivolous challenges to your will or trust.

Here are some examples of when someone may contest the will or trust:

  • It is incomplete or faulty
  • Lack of mental capacity
  • Under undue influence

But there are times when a beneficiary can challenge the clause and lose the fight but not lose their inheritance.

When You Can Challenge A Will

In Illinois, an in terrorem clause will be enforced unless the beneficiary who challenges the will or trust can show that they acted in good faith. This means that they had a reasonable belief that the will or trust was invalid. And if the beneficiary can show that they acted in good faith, they will not forfeit their inheritance, even if the challenge is unsuccessful.

For example, suppose the beneficiary can show that they reasonably believed that the testator was not of sound mind. In that case, they will not forfeit their inheritance, even if the challenge is unsuccessful.

The good faith exception to the in terrorem clause is intended to protect beneficiaries who have legitimate concerns about the validity of a will or trust. Illinois enforces an in terrorem clause: This means that Illinois courts will uphold no contest clauses in wills and trusts unless it is proven that the challenge is based on good faith. If a beneficiary challenges a will or trust, they will not forfeit their inheritance if they can prove that they are not a disgruntled beneficiary.

You will need an experienced estate litigation attorney to challenge or uphold the terms of a will or trust.

Oak Brook Estate Planning Attorney

If you have questions about a no contest clause, an experienced estate litigating lawyer can advise you on the best options for your situation. To talk to a qualified estate litigating attorney in Chicago or Oak Brook, contact the Estate & Probate Legal Group at 630-864-5835

Areas We Serve: Cook, DuPage, Kane, Lake and Will counties.

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