A contingent will is a will that takes effect only when a specific condition occurs. To determine whether a will is “contingent” one must look at whether the happening of the contingency is a condition precedent for the will to operate or if the language of the contingency was made to induce the drafting and execution of the will. If the condition fails to occur, the will becomes inoperative.
One can further examine the testator’s intent to determine if the testator intended a contingent will. The testator must affirmatively intend that the will does not take effect unless the specified event occurs. While the courts should not impose intentions not found in the language of the will, some courts take into account poor or unskilled drafting by the testator. Because most courts disfavor contingent wills, when in doubt many courts interpret the event as not contingent to hold the will valid.
For example, a testator may want to use a contingent will to encourage their children to reach specific education goals.
- A testator could put in a contingency to get a Master’s Degree, MBA, law degree, etc.
- The contingency would look something like “This bequest is effective only if my child, Sam, graduates from law school by the time they turn 30-years-old.”
In Illinois, parol evidence can be used to show that the testator intended a general will instead of a contingent will. But one cannot use parol evidence to show that an instrument written as a general will was intended to operate only upon the happening of a condition. One can also use the evidence that the will was preserved for a fair amount of time after the non-occurrence of the contingency to show that the testator intended the contingency to induce the drafting of the will and not as a condition precedent to the will.
See also e.g.; Eaton v. Brown, 193 U.S. 411 (1904)
[Last updated in September of 2022 by the Wex Definitions Team]