As contentious probate disputes continue to increase, no contest clauses in Wills are on the rise in an attempt to stop beneficiaries from making a legal challenge.
A no contest clause, also referred to as a forfeiture clause, makes a bequest in a Will conditional upon the beneficiary not making a claim against the estate. The clause will state that, should a beneficiary make a claim, they will not be entitled to inherit the sum of money or asset they have been left.
The person making the Will, the testator, will aim to leave them a sum that is large enough to deter them from risking it by trying a claim.
Inheritance Act claims
No contest clauses are aimed at preventing litigation, including claims under the Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act). This provides that certain individuals close to the deceased can make a claim against the estate if they have not been left reasonable financial provision. Those entitled to make a claim are:
- The deceased’s spouse or civil partner
- A former spouse or civil partner
- A cohabiting partner who lived with the deceased for at least two years immediately prior to their death
- A child of the deceased, or someone the deceased treated as a child of the family
- Anyone the deceased was supporting financially at the time of their death
A spouse or civil partner can claim a sum equal to that which they might have received in a divorce. Other claimants are entitled to reasonable financial provision, which is broadly held to be more than mere subsistence, but not enough for a life of luxury.
Why use a no contest clause?
A no contest clause can deter beneficiaries from trying to secure more from the estate than they have been left. If they run the risk of losing the sum bequeathed to them, they are less likely to bring a claim or try to force the estate’s executors to negotiate a settlement to avoid legal proceedings and delays in the winding up of the estate.
A recent case
In the case of Sim v Pimlott & Ors [2023], Dr Sim died after a 30-year marriage to Mrs Sim, leaving her cash of around £375,000 and a life interest in his residuary estate. A no contest clause relating to the cash gifts stated that in accepting the bequest, she must give up her rights to bring an Inheritance Act claim and release her claim over a jointly owned property.
Mrs Sim chose to make an Inheritance Act claim against the estate, which was valued at around £1.2 million.
The court denied her claim, finding that the Will made reasonable financial provision for her. However, by bringing the claim, she had forfeited her right to the cash gifts. This left her homeless, and would be unreasonable under the Inheritance Act, as her housing needs were not met. The court ordered that the life interest trust should purchase a property for her to live in.
Mrs Sim was left worse off than she would have been had she not made a claim. She also faced an adverse costs order.
Should a no contest clause be included in a Will?
A no contest clause can be effective in preventing weak or baseless claims and in deterring beneficiaries from trying to increase the sum offered. Where a reasonable financial provision has been made, they are likely to be reluctant to risk this.
However, sound claims can still be brought, both under the Inheritance Act and on other valid grounds, such as undue influence or lack of testamentary capacity.
An experienced Wills solicitor will be able to advise you on the use of a no contest clause. If you wish to deter beneficiaries from making an Inheritance Act claim, it is important to ensure that the sum left to them is one that would generally be considered a reasonable financial provision.
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