Reasons to choose Wilson Browne
I was asked this week about challenging a Will. My client was unhappy with her mother’s Will – it provided a modest bequest for my client and his sister. The bulk of the Estate was left to three charities who had been involved in the care of his mother before her death.
My client was concerned that his mother had been influenced into making the Will in the way that she had.
Unfortunately for my client, his mother’s Will contained a “no contest” clause.
A no contest clause (also known as a forfeiture clause) is a clause in a Will which states that a beneficiary will forfeit their inheritance if they challenge the Will. In my client’s case this clause applied to the bequest left to him.
Where a “no contest” clause is in a Will it is vital to think about the risk that you are running if you do raise a challenge to the Will.
If a challenge to the validity of a Will is successful and the whole Will is found to be invalid, the no contest clause will also be invalid. What then happens is that the most recent previous Will of the Deceased is applies.
In my client’s case there was an additional issue.
In this case I had to advise my client that the previous Will made no provision for him or his sister. This would mean that a challenge to the Will would risk not just my client’s bequest but also his sister’s bequest too.
On balance – and I think rightly – my client decided not to take the risk.
A “no contest” clause can be a very useful tool where a testator wants to make a Will leaving only a nominal sum to a child or other relative. This can be more effective than leaving someone out completely and looking to justify that.
A “no contest” clause will not always prevent a challenge – if a Will was incorrectly executed, if the testator lacked capacity or if there are other genuine grounds to challenge the validity of the Will then action should still be taken.
The case of Nathan v Leonard considered whether “no contest” clauses are contrary to public policy as they could deter those with claim under the Inheritance (Provision for Family and Dependants) Act 1975. Although the “no contest” clause was ultimately found to be invalid in that case it was held that the existence of such a clause itself was not contrary to public policy.
Mr John Martin QC stated that this was not the case. The condition did not in itself prevent an applicant from making a claim under the Act. If somebody chose to do so and as a result forfeited their benefit under the will, this could be considered by the court when determining the outcome of his claim.
The key is to take advice early and consider not only all of the options and how to approach a challenge but what the likely outcome of a successful challenge would be.