Elderly married couple wish to include a Non Contest Clause. This is despite my advice that such a clause provides no guarantees. They are, however, insistent. As such, any pointers to a good precedent or useful wording suggestions would be gratefully received. I have cobbled something together:
“If the said ??? contests any aspect of this my Will she/he will forfeit all of her/his entitlements granted in this my Will and she/he shall instead receive the sum of One thousand pounds absolutely.”
Maybe it as straightforward as that but thought I’d check first.
This is a clause which I used in a will where a challenge was anticipated. In this, we were correct, although not from the person from whom we expected it! The dispute was settled, on the basis that the clause was effective. The textbooks suggest that it is important to include an explicit gift over if the condition is triggered.
My Trustees may require any residuary beneficiary to confirm in writing that he or she accepts the validity of this will and if he or she shall not give such written confirmation as they may require or shall enter a caveat against this will being admitted to probate or shall institute proceedings in a Court in which the validity of this will is in issue and does not within such reasonable time as my trustees may allow (having being given a copy of this will and reasonable particulars as to the circumstances of its making and execution) withdraw such caveat or proceedings on terms acceptable to my Trustees or give written confirmation as above then the share to which he or she would have been entitled shall be forfeit and shall pass to [charity beneficiaries]
My understanding is that a suitably drafted non-contest clause may be upheld by the English courts.
However, the client needs to be aware that, even if valid, such a clause does not prevent the will, or its provisions, being contested. It merely results in the claimant effectively betting on achieving a better result by having the will set aside, or under the Inheritance (Provision for Family and Dependents) Act 1975.
Depending upon the personality(s) of the beneficiary(s) in question, such a clause might even encourage a claim.
Where a claim is made, one of the issues tested will be the validity of the clause in question. I would therefore recommend adoption of a tried and tested form of wording, rather than something that is “cobbled together”, to avoid the possibility of the litigants looking to the draftsman to bear some of the costs of that element of the dispute.
Many thanks…and agree re my ‘cobbling’ hence I posted here (non of our precedent books include such a clause). The requirement for a ‘gift over’ element came to me last night. But thanks for the clause you included in the post.
I made it clear to the clients that such a clause does not prevent a claim being made, and I’ll be mentioning this again in the Client Care letter. It is a good point you make re ‘personality’ (more the benef’s spouse being the problem) so I’ll ask they consider this further before proceeding.
Here’s one I use:
I declare that any person who would otherwise benefit under my Will but who
1.1 institutes any proceedings to set aside or contest the validity of my Will or any provision of it;
1.2 lodges any formal objection to the probate of my Will; or
1.3 brings any claim under the Inheritance (Provision for Family and Dependants) Act 1975 in respect of my Estate
shall forthwith be excluded from receiving any benefit under my Will and my Will shall take effect as if no provision had been made to benefit that person.
Coles Miller Solicitors LLP
I have been intrigued by the possible requirement for a gift over in a no-contest (or forfeiture) clause and so did some research.
I had retained a copy of a related post on 3 April 2014 by Alexander Learmonth on the subject of a non-interference clause. He mentioned the availability of relief from forfeiture if there was no gift over.
My view after conducting the research is that if you have a no-contest clause WITHOUT a gift over, it is not invalid, but the Court will retain its jurisdiction to grant relief from forfeiture in appropriate circumstances - which it will not be able to do if there is a gift over (seems any gift will do, other than one which occurs by operation of law).
Here is a relevant section from para 226 of Vol 37 (5th Edn) of Halsbury’s:
A court with equitable jurisdiction may grant a donee relief against a condition precedent, or against forfeiture under a condition subsequent, for example where performance has been prevented by the contrivance of the executors or other persons interested, and by no fault of the donee, or where the condition is in the nature of a penalty; and also in the case of conditions relating to matters such as the payment of legacies or other sums, or the release of claims, where the act has not been performed within the time required by the testator but is capable of being adequately performed at any time, on compensation being made, by the payment of interest or otherwise, for the delay. The court does not, however, give relief even in such cases where there is a gift over to any person other than the one who would take by operation of law; and outside such cases the court cannot give relief at all."
Hope this is of interest.
Thackray Williams LLP