A no‑contest clause is meant to stop people challenging a will, but, as B P Collins’ contentious probate team explains, the 2023 case of Sim v Pimlott shows that, in reality, these clauses don’t always prevent litigation.
What is a “no contest” clause?
A no‑contest clause (sometimes called a forfeiture clause) is a provision in a will stating that if a beneficiary challenges the will, they lose what they were left. The intention is to discourage disputes especially where they are likely. Given the rise in inheritance disputes over the last decade, it is always sensible to consider if your will might be subject to a challenge and how you might take steps to prevent that.
In many cases, a no-contest clause will be effective because beneficiaries will not take the risk of losing what inheritance they have received, even if they might have hoped to receive a bit more. However, the case of Sim v Pimlott shows that not all beneficiaries are deterred.
In Sim v Pimlott, the deceased, Dr Sim, left his third wife, Valerie, to whom he had been married for 19 years, some provision from his Estate, but only if she agreed not to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. If she challenged the will, she would forfeit the provision which had been made for her. The evidence was that, despite their marriage persisting at the time of his death, the marriage between Dr Sim and Valerie had broken down, and divorce proceedings were imminent.
Dr Sim’s will had left Valerie:
- The sum of £250,000, on condition that Valerie entered into an agreement not to pursue a claim under the 1975 Act.
- A further sum of £125,000, on condition that within 6 months of the date of Dr Sim’s death Valerie had released her interest in the Dubai property; and
- A life interest in the Residuary Estate.
Despite the no-contest clause, Valerie brought a 1975 Act claim, arguing that the will did not provide her with reasonable financial provision.
The court determined that the will was entirely reasonable especially in light of Valerie’s unwarranted and “wholly unacceptable” conduct toward Dr Sim in the last months of his life. Valerie had not complied with any of the conditions and therefore she did not receive the sums of £250,000 or £125,000, leaving her with only a life interest in the residue. However, the court did make an order requiring the trustees to give Valerie the sum of £400,000 outright instead of her life interest.
Therefore, whilst the court ultimately upheld the no-contest clause (costing Valerie £375,000), it still considered Valerie’s claim on its merits.
Whilst each case depends on its own facts, the key point is that the court is not prevented from considering a claim just because there is a no contest clause.
Why do claimants litigate even when a will has a no‑contest clause?
If a clause threatens financial loss, why would anyone take the risk? There might be many reasons including:
- Invalidity of the will – perhaps the most compelling reason to challenge a will despite a no-contest clause is if the beneficiary believed the will was invalid, for example, because they deceased wrote it at a time when they lacked testamentary capacity or they were coerced into preparing the will in those terms. Crucially, a no-contest clause cannot be valid if it is contained in a will which is invalid.
- Necessity – a beneficiary may feel they simply cannot manage with the inheritance they have been left. If the will leaves them without secure housing, income, or stability, the risk of losing a legacy may seem worth taking. This is especially the case if the beneficiary’s circumstances had significantly changed since the will was prepared.
- Belief that the will is unreasonable – Sometimes the terms of a will feel punitive or unfair. In Sim v Pimlott, the conditions placed on the widow were strict, and she believed they did not reflect her needs or contributions.
- Potential for a better outcome – A claimant may calculate that a court could award them more than the will provides – even after forfeiting the conditional gifts.
- Misunderstanding the clause – Some beneficiaries assume the clause will not be enforced, or that the court will override it automatically. Sim v Pimlott shows that courts can and do enforce them and still consider statutory claims separately.
- Emotional motivations – Inheritance disputes often arise from strained relationships, feelings of exclusion, or a desire for recognition. These emotions can outweigh the financial risk.
Do no‑contest clauses actually prevent litigation?
Many preparing their will might feel that there is little point including a no-contest clause if it does not prevent litigation. Such clauses do prevent some claims and will cause many beneficiaries to think very carefully before embarking on costly litigation which might see them significantly worse off, especially if the claim is unlikely to be successful, frivolous, or being brought in the hopes of reaching an agreement which provides a slightly bigger inheritance.
Therefore, if you are considering challenging a will which contains a no-contest clause, this needs careful consideration and specialist advice about the potential risks of a claim.
If you require advice in relation to an estate or will dispute, please contact our contentious probate lawyers at enquiries@bpcollins.co.uk or 01753 889995.
