Legal Question in Wills and Trusts in Illinois
No-Contest Clause Discrepancy
I am the Successor Trustee of a Trust. The Trustors are deceased. An Amendment to that Trust as well as a Codicil to a Pour-Over Will that accompanies the Trust are currenly being contested by a disgruntled child of the original Trustors. My probate attorneys have told me that judges usually do NOT uphold No-Contest Clauses. The Trust and the Pour Over Will both have No-Contest clauses that state that if any person contests the validy of the Trust including any amenmendts thereto or the validity of the Will including any codicils thereto, then the right of that person or entity to take any interest in our Trust Estate or to act in any fiduciary capacity shall cease, and the demise of that person (and his or her descendents) or entity shall be deemed to have occured prior to that of either or both of us, as applicable. The individual contesting was once a beneficiary but was later written out specifically via the Amendment and the Codicil. The case is still in its infancy, and my lawyer has indicated that he plans to bring up the No-Contest Clauses to the judge, but he doesn't seem to have much faith in their efficacy. So, what are my chances of being able to successfully utilize these No-Contest Clauses?
2 Answers from Attorneys
Re: No-Contest Clause Discrepancy
Did I miss something. The person that is contesting the will [including the codicil} and trust was already disinherited by the codicil. So it was the testator's clear intent expressed by the codicil to disinherit the beneficiary. The no contest clause is secondary at best since the beneficiary was already disinherited. The best position which im sure has already been discussed by your attorney is to show that it was the clear intent of the trustor to disinherit the beneficiary. Courts do not like to over turn the intent of the testator or trustor.
Re: No-Contest Clause Discrepancy
If I understand this correctly, I think the no-contest issue is an irrelevant false road. Sorry.
Let me explain.
A normal no-contest clause is in document A, saying I leave money to X, if he contests this will he will lose X. If A were not upheld, X would get more. The clause in the document says -- I can't stop you from winning, but if you try & lose, you're cut out. So he has to weigh a sure thing vs. trying for the jackpot. It does not prevent him from collecting if he wins, because if he wins the document is invalid & has no legal effect.
Now if I understand, A leaves to X and has a no-contest clause. B amends to cut him out.
If he loses and B is effective, he gets nothing anyway.
If he wins by overthrowing B, then A is in effect. But he hasn't challenged A. He has challenged what was concluded to be an invalid amendment -- a legal nullity. He is in fact carrying out the intent expressed in A.
If I understand the facts correctly, you'd be better off putting in your efforts to sustain B.
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