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Claims under the Inheritance (Provision for Family and Dependants) Act 1975
The Inheritance Act enables a qualifying applicant to bring a claim where a Will (or an intestacy) leaves them without "reasonable financial provision".
A claimant must fall into one or more of the categories to be able to bring a claim:
- A spouse or civil partner of the deceased.
- A former spouse or civil partner who has not remarried.
- An unmarried partner of the deceased who lived with them as husband or wife for two years before the date of death.
- A child of the deceased, including illegitimate or legally adopted children.
- A person treated by the deceased as a child of the family.
- A person who was financially maintained by the deceased.
No-contest clause
There is no cast-iron way of preventing a claim under the Act. However, claimants can be deterred by including a 'forfeiture clause', also known as a 'no-contest clause' in a Will.
Under this clause, the testator leaves a sum or percentage of their estate to the possible claimant on the condition that they do not bring any claims against the estate when they die.
The clause may mean that the claimant will seriously need to consider the "pros and cons" of bringing a claim or face losing the gift in the Will.
Including such a clause does not guarantee that a claim will be avoided, but it can act as a strong deterrent as the claimant beneficiary runs the risk that by bringing a claim, they could be left with less than their entitlement under the Will or nothing at all.
Limitations of a no-contest clause
Considerable care must be taken in drafting such clauses because they can be attacked on various grounds.
The general principle is that a no-contest clause will only be valid if it provides that the benefit shall pass to someone else on forfeiture.
The no-contest condition will be no great deterrent where the value of the claim may exceed the benefit under the Will.
In the case of Wellesley v The 8th Earl of Cowley [2019] EWHC 11 (Ch), the testator left a legacy of £20,000 from an estate of £1.3m to his estranged adult daughter.
In a previous Will, he had made the legacy conditional upon the Will not being challenged by the daughter or any other beneficiary.
In his last Will, he removed that condition.
The Judge's decision
The Judge found that the daughter was responsible for the long estrangement and that the legacy of £20,000 represented a reasonable provision for her maintenance.
The result may have been the same whether or not there was a no-contest clause, but its removal at least indicated a degree of reasonableness on the father's part.
He must have been content enough to give a small legacy to his daughter on the basis that it was more than she deserved but that he was prepared to be fair in giving her something.
It is important to note that the size of this estate was £1.3m, so it is highly unlikely that the £20,000 would have prevented a claim.
The daughter had significant financial needs, which were no doubt a factor in her decision to pursue her case.
Summary
If you are included in a Will that has a no-contest clause, it is important to take advice on whether to bring a claim and to obtain a fair and qualified assessment of the risks, advantages and disadvantages that might be present.
The clauses may be inadequately drafted to prevent a claim or the amount left of little value. No two cases are the same, and it is important to be fully informed before making a decision.