Can you still make a claim if you are left something in a Will but that gift is conditional on you not bringing a claim?
The short answer is yes. However, there are a few warnings to consider before embarking on legal action as you could be left with nothing.
What is a non-contest or forfeiture clause?
A non-contest or forfeiture clause is often included in a testators will to try to avoid anticipated litigation on the testator's death. Those clauses leave a specified gift to the beneficiary on the condition that they undertake a certain action or refrain from bringing a claim against the Estate. If they fail to comply with the condition, the gift to the beneficiary is revoked and they receive nothing pursuant to the terms of the Will.
Sim v Pimlott
A recent Inheritance Act claim (Sim v Pimlott [2023]), where a wife brought a claim against her estranged husband's estate, highlights the issue with conditional gifts. The wife's late husband had left gifts in his Will on the condition that she did not bring a claim for further inheritance. However, this case found itself at the High Court where they considered whether the terms of his Will were justified.
HHJ Hodge KC commented that the test to consider was not whether the husband's intentions were reasonable but, objectively, whether the provision left for the wife in the Will amounted to reasonable financial provision (that being the test for a 1975 Act claim).
HHJ Hodge KC commented that if the Will was found to have made reasonable financial provision for the wife and, in bringing a claim, she had failed to comply with the conditions attached to that gift, then:
- the inclusion of a non-contest clause seeking to prevent an unmeritorious claim against the estate was enforceable and reasonable
- it would be wrong for someone making a claim in the knowledge that they would lose their benefit under the terms of the Will if they were to pursue such a claim, to then be able to allege that, following the loss of that benefit, they had not been properly provided for.
Conclusion
A properly considered and reasonable gift in a Will with a non-contest condition may leave a beneficiary with nothing should they pursue a claim against the Estate anyway. As a result, it is important that legal advice is engaged at the earliest opportunity to properly assess the merits of any claim being considered and throughout the litigation where a non-contest clause is included.
Likewise, anyone intending to include a non-contest or forfeiture clause in their Will should obtain proper advice on the level of such gift to ensure that it has the desired effect. Too small a gift and the beneficiary may take their chances and/or the gift may be considered unreasonable provision.
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.