Wills — what are ‘no contest’ or ‘forfeiture’ clauses and are they legally enforceable?

We’ve recently seen a rise in the use of ‘no contest’ clauses — also known as ‘forfeiture’ clauses — to discourage beneficiaries from challenging the terms of a testator’s Will. Such clauses aim to prevent future litigation and uphold the testator’s wishes by stating that if a beneficiary contests the Will and doesn’t succeed, they’ll forfeit their inheritance — either in part or entirely.

However, if the challenge is successful and the Will is deemed invalid, the forfeiture clause will also be invalid.

Here, Lauren Ainsworth and Beth Middleton from our Will and inheritance disputes team outline exactly whether or not no contest clauses are legally enforceable.

How no contest clauses are treated at Court

The extent to which a no contest clause can be enforced has been an area of ambiguity for some time. However, the recent case of Sim v Pimlott [2023] gave us some further clarification.

This concerned the estate of Dr Sim, who was a former GP that had been married three times. At the time of his death at the age of 79, divorce proceedings had been initiated between Dr Sim and his then wife, Valerie, following various criminal allegations that had been made against him.

By his Will, Valerie was left two cash legacies:

1. £250,000 — provided that she waived her right to a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
2. £150,000 — subject to her giving up her interest in their jointly-owned property in Dubai. 

It was likely that Dr Sim had included a no contest clause to deter Valerie from making any further claim against his £1m estate. Despite this, Valerie pursued a claim — arguing that the Will didn’t make reasonable financial provision for her pursuant to the Inheritance (Provision for Family and Dependants) Act 1975.

The emphasis at trial was whether Dr Sim’s testamentary intentions were reasonable and whether reasonable financial provision had been made for Valerie. 

In the first instance, the Judge held that he couldn’t accept Valerie’s allegations against Dr Sim and found that her behaviour towards her late husband was “unwarranted, and wholly unacceptable”. In the circumstances, the Judge was satisfied that it was reasonable for Dr Sim to draft the Will in the terms that he did and held that the no contest clause was effective.

However, when considering whether the provision for Valerie from the Will was ‘reasonable’ — taking into consideration the effect of the no contest clause — it was found that the Will failed to make reasonable provision for Valerie in respect of her housing needs. The Court therefore varied the Will to allow a property to be purchased.

However, this was significantly less than the legacies Valerie would’ve received had she not brought a claim against the estate. 

A warning to future claimants?

In essence, the Court found that it would be wrong for a beneficiary to willingly pursue a claim while knowing that they’d forfeit their inheritance — and to then argue that because they’d forgone the benefit, the Will fails to make reasonable financial provision for them. 

As a result, an adverse costs order was made against Valerie. This should serve as a warning to all future claimants.  

How effective are no contest clauses?

Yet despite the fact that these clauses can be successful deterrents against baseless claims, they fail to provide an absolute defence against legitimate challenges to a Will. 

Moreover, the court still has discretion to vary any trusts created by a Will, which might undermine the intentions of a testator that a prospective challenger should be disinherited entirely.

Talk to us

If you’re facing a dispute relating to a no contest clause or anticipate potential litigation in respect of your own estate, it’s essential to seek trusted, professional legal advice as soon as possible.

Our contentious probate solicitors are specialists in resolving disputes that relate to Wills, inheritance, estates and trusts.

Talk to us today by giving us a call on 03333 004 4488, sending us an email at hello@brabners.com or completing the contact form below.