No-contest clauses vs 1975 Inheritance Act claims: let’s roll the dice

However, this does not necessarily mean that they are all successful. The recent decision in Sim v Pimlott and others [2023] EWHC 2296 (Ch) - where a widow sought to deploy the 1975 Act to claim that her late husband’s will failed to make reasonable financial provision for her - has shed new light on the enforceability of a no-contest clause. In high level terms, the case (which could perhaps be claimed as a (Pyrrhic) victory by both sides) confirms the effectiveness of no-contest clauses and their potential ability to discourage claims under the 1975 Act.

What is a no-contest clause?

"No-contest" clauses in wills, generally stating that a beneficiary will lose their entitlements should they choose to dispute the will, are gaining in popularity amongst testators. They are typically included for their supposed deterrent effect in dissuading a beneficiary from challenging a will or bringing a claim under the 1975 Act. However, the conundrum remains as to whether, if they operate, they actually strengthen the disappointed beneficiary’s potential claim, since by definition the will makes even less provision for that beneficiary (or none) after the clause has swung into effect.

Background

The Deceased, Dr Sim, and his wife, Mrs Sim, were reported to have a "complicated relationship". At Dr Sim’s death, the couple had been married for 19 years and in a relationship for 35 (the longevity of their relationship being a factor that was considered when assessing the strength of Mrs Sim’s claim). In the case and at points during their marriage, Mrs Sim had alleged domestic abuse and sexual violence. Additionally, at the time of Dr Sim’s death, there were divorce proceedings pending between the couple and Mrs Sim had sought non-molestation and occupation orders against the Deceased (despite his living in a care home).

Against this background, Dr Sim, in drawing up his will in late 2017, was expressly advised by his solicitors to make reasonable financial provision for his wife: he attempted to do this by including cash legacies to her, as well as a life interest in his residuary estate. He was clear however that, given the deterioration of their relationship, he wished to go no further: he wanted the remainder of his estate to be split between four of his children and for each of his nine grandchildren to receive a generous cash legacy. Despite the above provisions, Dr Sim’s solicitors warned that the will could still be challenged by Mrs Sim, which Dr Sim anticipated was likely.

The will was drafted to include the cash gifts, but subject to some “Conditions Precedent” (effectively, a no-contest clause) stating that Mrs Sim would be given: (i) £250,000, provided she executed a written deed releasing any claims against the estate under the 1975 Act (alongside other conditions); and (ii) £125,000, if she released her interest in a property in Dubai, owned jointly with Dr Sim. The residue of the estate was then to be held on trust, with Mrs Sim entitled to receive the estate’s income during her lifetime (subject to a power of appointment).

Dr Sim died in January 2018, with a net estate of approximately £1,200,000. Within three days of his death, Mrs Sim had instructed lawyers in relation to his estate, which ultimately culminated in the 1975 Act claim: Mrs Sim claiming that the Deceased’s will failed to make adequate financial provision for her given the length of their marriage and the abuse she had allegedly suffered during that time (in doing so, she released neither her rights to claim under the 1975 Act nor her interest in the Dubai property).

Judgment

In assessing the claim, the court considered:

• whether the financial provision set out within the will for Mrs Sim was reasonable;
• whether it was reasonable to include the no-contest clause; and
• whether a claimant can subsequently argue a will has failed to make reasonable financial provision because of an effective no-contest clause.

The court found that, given the "unusual circumstances", the will did make reasonable financial provision for Mrs Sim by offering her £375,000 upfront plus a life interest in the (net) residuary estate (of c. £600,000). Additionally, Mrs Sim was in receipt of an NHS’s widow’s pension of approximately £2,000 per month.

On the no-contest clause, the judge remarked that:

“In circumstances where the actual provision made by the will is objectively reasonable…it was also reasonable to include a provision intended to discourage the relevant beneficiary from embarking upon what is…an [potentially] unwarranted claim”.

The judge subsequently added that:

“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”.

As such, the judge confirmed that, having brought her claim, Mrs Sim had effectively forfeited her right to the two cash amounts and therefore, her life interest was her only remaining entitlement under the will.

It was however held that, in that context, the will failed to make reasonable provision in one respect, given the length of the marriage: this being for Mrs Sim’s housing needs (it being clear that, despite her life interest, the family home would need to be sold to settle pecuniary legacies). Accordingly, the court decided to vary the will to require the trustees to set aside up to £400,000 for the purchase of a property for Mrs Sim’s rent-free occupation. 

Concluding remarks

These latent statutory claims stand in counterpoint to the famed freedom of testamentary disposition enjoyed by English domiciled testators and continue to be debated both here and in the civil law world. In simple terms, freedom is potentially curtailed and it isn’t open to testators to cast aside the 1975 Act in the way they can limit certain provisions of the Trustee Act 1925, for example.

The judgment comes across, at a high level, as a blessing of no-contest clauses and a slight swing back towards freedom of disposition, provided the clauses are used in a will which otherwise offers reasonable financial provision. Whilst the facts of the case are unusual (the judge was highly critical of Mrs Sim’s conduct towards her husband at the end of his life and regarded her evidence as "unreliable" and "exaggerated"), the judgment has broader applicability to wills where no-contest clauses are used appropriately.

Potential challengers of estates should perhaps therefore reflect more deeply on the merits of their case before embarking on claims, where a no-contest clause has been used in an objectively rational will. Such beneficiaries may not be able to later argue that the will does not provide them with reasonable financial provision because of the effect of such a clause, assuming that this case continues to be followed. On the flipside, for testators and their advisors, whilst there are inevitably many factors to weigh-up when considering whether to include a no-contest clause in a will (for example, its enforceability and a beneficiary’s reaction), this case suggests that courts may look favourably on such a provision used sensibly. Such a clause should however be pitched appropriately, to avoid the court making a reward to a beneficiary, which the testator ultimately wished to avoid.

This article was also authored by Samar Alam, a trainee solicitor in the firm’s private client group.