In the context of increasing challenges to exclusions or disappointed beneficiaries (in terms of those receiving less than they had expected) and litigated claims or disruption to administration by intimated challenges, now seems like a sensible time to write a little bit about Will exclusions and no contest clauses.

Exclusion Clauses

These expressly stipulate that a particular individual has been excluded from the testator’s Will and make clear this was no oversight.

Usually these are accompanied, whether disclosable or not, with a form letter of wishes incorporating an explanation, and sometimes a statement. It is the writer’s view that a statement is a better option as further time is taken to focus on the decision adopted.

I was drawn by another practising colleague in the area, Justin Sadler, to the quote of Justice Green from Reeves v Drew & Others [2022] EWHC 159 (Ch):

“It is trite that in this country testators have complete testamentary freedom and they can do as they please. They can act out of pure spite, irrationally, nastily and capriciously, and they do not need to justify their dispositions by reference to any notions of fairness, reasonableness or morality. That means that those seeking to uphold a will do not need to prove that the dispositions can be explained or justified as fair, reasonable or coherent.”

As such a formal exclusion clause sets out the testator’s position clearly.

When considering with a client the determination to exclude a potential beneficiary obviously it is necessary to discuss the risks and potential pitfalls. This will cover explanation of potential challenges to the process of administration and indeed the need to consider if there are other options to sit alongside, particularly where a challenge may be foreseen by the testator but even where it is thought this decision will be accepted. Recording the advice in this respect, or at least that such advice has been discussed is also an important consideration.

What might result is a determination to provide a limited legacy, when this is of some value then it may be sensible to consider whether there is a benefit to be achieved from adding a no contest clause.

No Contest clauses

These I believe can be seen as slightly more common of late. They are not a solution but rather I would suggest represent an additional tool that might dissuade a speculative challenge. Failing that at least they can place an additional risk factor on the individual seeking to challenge the Will provision.

In the case of Sim v Pimlott and others [2023] EWHC 2296 (Ch) there was consideration of conditional clauses, in the case the Court found these objectively allowed for reasonable provision in the context of a challenge and the forfeiture aspect incorporated had a “bite”. The result was it was held that a claimant could not trigger a no-contest clause and then argue that reasonable provision had not been made for them because they had forfeited their inheritance by failure to accept. The provision was intended to discourage “an unwarranted claim under the 1975 Act”. The Court went on to say in terms of the Claimant in that case: “it would be wrong in principle for a claimant to pursue a 1975 Act claim in the knowledge that in doing so, they will forego a certain benefit; and then to say that, because they have foregone that benefit, the will fails to make reasonable financial provision for that beneficiary. In my judgment, there is good reason for the court to uphold the validity of such a condition.”

This is a good example of the law recognising the benefit of this type of condition. However such clauses have to be considered with care. The case Sim was a very unusual case and such clauses in my view should not be seen as giving necessarily a higher value than to discourage challenges or at least cause a receiving beneficiary who might want more to have a pause and weigh up the risk that the challenge might have the additional effect in terms of being unsuccessful of reducing further the provision under the Will. Using sensibly they are an additional hurdle for those considering a challenge to consider and advise those making Wills as an option.

In terms of advice when faced with a no contest clause or when concerned with preparing a new Will setting out your testamentary wishes please contact our Contentious Probate Team or Private Wealth and Inheritance Team for advice relevant to your particular circumstances.