CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEESPECIALISTS – DO WILL NO CONTEST CLAUSES WORK?

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss
whether Will no contest clauses work

What is a Will no contest clause?

A Will no contest clause is a clause in a Will which seeks to stop a beneficiary from
potentially challenging the bequest they are entitled to receive in the Will by making its
receipt dependant on the beneficiary in question, not subsequently challenging or contesting the Will after the testator has passed away.
So for example, the Will might say something along the lines that a sum is bequeathed to a
particular beneficiary but subject to he or she not contesting or disputing it (whether by way
of a challenge to the legal validity of the Will or more pertinently by way of a claim for
financial provision under s. 2 of the Inheritance (Provision for Family and Dependants) Act
1975 (“the Act”).

The decision in Sim v Pimlott and others [2023] EWHC 2296 (Ch)

This was a claim under the Act by a disappointed widow (the deceased’s third wife) of many
years – the relationship had lasted for some 35 years and the marriage for 19 and a half. The
decision can be found here at:

Sim v Pimlott & Ors [2023] EWHC 2296 (Ch) (05 May 2023) (bailii.org)

She was actually left £375,000 subject to conditions to include vacating the matrimonial
home so that it could be sold subject to her not claiming against the estate under the Act or
otherwise. She did bring the claim (as above) and so potentially lost the benefit of this
although she did retain a life interest in the residue of the estate which was unaffected by the no-contest provision.

Spousal claims under the Act – they tend to be “favoured” applicants

The law relating to spousal claims (under the Act) is dealt with by HHJ Hodge KC in Sim
from paragraph 159. Widows (or widowers) tend to be favoured applicants because:

• (paragraph 160) “reasonable financial provision” means such financial provision as it
  would be reasonable in all the circumstances of the case for the survivor to receive
  whether or not that provision is required for their maintenance
• (paragraph 163) in the case of the surviving spouse, the court shall, in addition, have
  regard to ….the age and duration of the marriage and the contribution made by the
  applicant to the welfare of the family of the deceased, including any contribution
  made by looking after the home or caring for the family (s. 3 (2) )
• (paragraph 164) the court is also required to have regard to the provision which the
  applicant might reasonably have expected to receive if, on the day on which the
  deceased died, the marriage, instead of being terminated by death, had been terminated by divorce [the so-called “divorce cross-check” – s. 3 (2) ]

Moreover and having regard to the divorce cross-check in particular, account is generally
taken of the fact that unlike in divorce (where the court has to consider there are going to be
two households to maintain) only one of the parties has survived (creating an expectation that provision may well be more generous following death than on divorce).

In Sim the Court considered the no-contest clause was reasonable but it was
nevertheless rendered “ineffective” because it created a financial need which the court
was not prepared to ignore

HHJ Hodge KC found, notwithstanding what appear to be have been major conduct issues on the part of the spouse (see paragraphs 201 to 204) and that he found the deceased had been entirely justified in including the no-contest provisions (see paragraph 205) and notwithstanding the provisions he did make were reasonable (see paragraphs 220 to 221), he was not prepared to leave her homeless, which was a risk once the no-contest provisions were triggered. He therefore exercised his power under s. 2 of the Act to vary for the Claimant’s benefit the trusts on which the deceased’s estate were held, so as to include provision that the Claimant was entitled to require the trustees of the estate to set aside a sum of up to £400,000 in order to provide a property for the Claimant to occupy rent-free.

What do we learn from Sim?

We learn very simply that “effective” and “fair” no-contest clauses can be rendered
completely ineffective if they contribute to and/or create a financial need. The Court will still
exercise its discretion in favour of the “unreasonable” applicant.

If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you
simply want us to assess your claim, then please do not hesitate to contact us for a
confidential no strings chat and/or visit us at www.willclaim.com.

We provide details about our no win no fee arrangements at https://www.willclaim.com/no-
win-no-fee/.