As the number of disputes relating to people's wills and estates increase, there has been an increasing public awareness of so called "no contest" clauses in wills. But how do these no contest clauses work exactly, and what must they include in order to be valid?
In this article, we examine the essential legal requirements that make no contest clauses valid and enforceable, discuss when they're typically used in estate planning, and highlight key considerations for proper drafting to ensure they achieve their intended effect.
What is a no contest clause in a will?
These clauses usually include wording to the effect that if a person (or persons) seek to make a claim after the testator's death, then the legacy they receive from the estate is reduced, or removed all together.
They are intended to act as a deterrent when a person making a will suspects that somebody might try to challenge the will after their death.
When are no contest clauses used?
These clauses are often included in a will when the person is concerned that one (or more) of their beneficiaries might contest the validity of their will, or bring a claim against their estate. This can include arguing for a greater share by way of claiming under the Inheritance Act, for example.
As a matter of law, these no contest clauses can be effective, but only when properly drafted.
Are no contest clauses enforceable?
In order for a no contest clause to take effect as intended, it is essential that the will records what is to happen to the legacy in question if challenged. If this "gift over" is lacking, then the clause will not be valid and will have no effect whatsoever.
While these clauses are permissible in the law of England and Wales, any attempt to simply block a beneficiary from bringing a challenge, or an Inheritance Act claim, will be invalid as a matter of public policy. Such clauses would, if valid, circumvent legislation and oust the jurisdiction of the court, neither of which will the law tolerate.
Other considerations
What is, and is not, deemed to be a "challenge" to a will could be open to debate. Is it necessary to formally challenge the will by court proceedings, or would simply threatening that in pre-action correspondence be deemed a "challenge"?
Is a claim under the Inheritance Act a challenge, given such claims do not actually dispute the validity of a will, merely its effects? What about lodging a caveat at the probate registry? While that may often be the first step in challenging a will, there might be other circumstances where it is used, such as where the suitability of an executor is being questioned.
All of these factors will need consideration at the drafting stage. What is deemed a "challenge" should be expressly set out in the will. A failure to do that may result in diluting the effect of the clause, or even making in ineffective all together.
Case law on no contest clauses
There are very few cases to have reached trial on the issue of no contest clauses in this jurisdiction. We have published a more detailed article on two such cases.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
