Stick or Twist? When Challenging a Will Goes Awry

What to do when a beneficiary gets something, but in their eyes, not enough under the terms of a Will. And the testator anticipates such a challenge by placing a warning within the Will? In the case of Sim v Pimlott [2023], the deceased’s Will included a “no contest” condition to two cash gifts of £250,000 and £125,0000 made in favour of his wife, but not her life interest to income from the residue of the Estate.

What is a no-contest clause?

In generic terms, it’s a warning from the testator to the beneficiaries not to seek more than they have already been bequeathed, otherwise they risk losing it all. Such a clause is drafted in broadly these terms:

“If any beneficiary under this Will contests the validity of this Will or any of its provisions, or files any proceeding to set aside or void this will or any of its provisions, then that beneficiary shall be deemed to have predeceased me and shall forfeit any interest in my estate.”

Would a beneficiary stick or twist in those circumstances and would such a clause survive any judicial assessment?

This issue arose in Sim v Pimlott, where the wife and the deceased husband were in the midst of divorce proceedings at the date of his death. The wife made numerous and serious allegations concerning the conduct of (1) the deceased and (2) his children from other relationships. These included allegations against the deceased of a serious sexual nature. The Will, made shortly before death, made express reference to a “no contest” clause, in other words, if the wife did not accept the two cash gifts under the terms of the Will and decided to fight for more - via the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) - she would forfeit the benefit to receive those cash gifts.

The wife initially intimated a Will validity claim and though this was not ultimately pursued, she did commence a claim under the 1975 Act arguing her share of the Estate (which had a net value of £1.2m) under the Will did not constitute “reasonable financial provision”. Following protracted litigation, the judge found the wife’s evidence to be weak and the claim for reasonable financial provision failed, but there was an additional sting in the tail. The judge also recorded it was reasonable to discourage a beneficiary from embarking upon a legal claim that would delay the administration of the Estate and the distribution of assets to beneficiaries, and this would come at a financial cost. Accordingly, as the wife had broken the relevant conditions not to pursue a 1975 Act claim and that the provision for her in the Will was reasonable in any event, the Court found that it was reasonable to deny her entitlement to the two cash gifts, in light of the express no contest provision. The judge also stated “….it would be wrong in principle for a claimant to pursue a 1975 Act claim in the knowledge that in doing so, they will forego a certain benefit; and then to say that, because they have foregone that benefit, the Will fails to make reasonable financial provision for that beneficiary. In my judgement, there is good reason for the court to uphold the validity of such a condition.”

However, not all was lost. The ruling still meant that the wife received no capital sums under the Will, but the Court effectively enlarged the wife’s life interest (which was not subject to a no-contest provision) so as to require the Executors to set aside a capital sum (£400,000) to provide a property for her to occupy rent-free at as life tenant provided she pay for all council tax, utilities and other outgoings. Upon her death, the property would pass to the Estate for distribution amongst the other beneficiaries. The wife also received the deceased’s NHS pension of £2,000 per month. That said, the wife would also have been penalised in costs for her largely defeated 1975 Act claim.

But this is an interesting judgement for its discussion upon the reasonableness of “no contest” clauses. It serves as a reminder to practitioners to thoroughly assess the merits of a potential claimant’s case before advising them to embark on a claim under the 1975 Act when the threat of losing all of their entitlement is clear and present. From the side of the Estate, it will be necessary to consider carefully whether the no contest clause is appropriate by ensuring it is not too low – which might still lead to a successful claim for reasonable financial provision, nor not too high – as that would defeat, at least to some extent, the testator’s wishes.

How can we help?

This blog was written by Noel McNicholas, an Associate Solicitor with many years of expertise when it comes to probate litigation. If you have any questions concerning probate disputes, please contact Noel McNicholas on 01926 887700 or noel.mcnicholas@thomasflavell.co.uk.