Those who draft Wills often include a “no-contest clause” in a decedent’s Last Will and Testament. If an heir challenges the validity of the decedent’s Will, this clause provides for the disinheritance of that heir. Although the no-contest clause could have this effect, it might also be defeated during a challenge to the Will. Also, if the litigation is settled before trial, parties often reach an agreement in which the no-contest clause would not apply.
An heir to an estate might challenge the validity of a no-contest clause in the same way that they would challenge the validity of the decedent’s Will. This heir might call into question the decedent’s capacity to execute a Last Will and Testament or assert that a third party exerted undue influence over the decedent. There are also other ways a Will might be challenged, but these two ways are the most common.
When deciding whether to challenge a Last Will and Testament that contains a no-contest clause, an heir will often consider the inheritance they would receive under the current Will compared to what they would gain if their challenge were successful. If the heir has little to gain from contesting the Will, it may make sense to forego a challenge to it. On the other hand, if they could inherit a considerably higher amount (especially if they are set to inherit very little under the current Will), an heir might be more likely to challenge it.
A no-contest clause is usually enforced following an order entered by the court which disinherits a beneficiary of the estate. The enforcement of this clause typically occurs after the conclusion of litigation via motion brought by the executor of the estate.
If the challenge to the Will is successful, the no-contest clause is voided along with the Will. Additionally, if the parties settle the litigation without a trial, the no-contest clause is typically no longer applicable.
While a no-contest clause might seem intimidating, it may not keep someone from contesting a Will – or it might be a determining factor in their decision. It is important for an heir to review the impact of the no-contest clause and to seek wise counsel in order to make the most sound decision when considering contesting a Will.
For assistance creating or updating your estate plan, contact us at Wilson and Wilson Estate Planning and Elder Law, LLC at 708 482 7090 for our main office in LaGrange, Illinois or at 847 656 8958 for our Northbrook, Illinois office.