Enforceability of no-contest clauses in wills

No-contest clauses in wills, sometimes called "in terrorem" clauses, have a limited and somewhat uncertain status in England and Wales. Here is the position.

What a no-contest clause does:

A no-contest clause typically says that if a beneficiary challenges the will, they forfeit their entitlement under it. The idea is to deter challenges by making the beneficiary risk losing what they have been left.

The legal position in England and Wales:

The courts have historically treated these clauses with considerable caution. The key principles are as follows.

1. A no-contest clause is not automatically void, but nor is it automatically enforceable. The court retains a discretion to consider whether enforcing it would be appropriate in the circumstances.

2. If a beneficiary brings a challenge on the ground that the will is invalid, for example because of lack of testamentary capacity, undue influence, or fraud, the courts have generally been reluctant to allow a forfeiture clause to penalise someone for raising a legitimate issue about the validity of the will. The reasoning is that public policy favours ensuring that only valid wills are admitted to probate.

3. If the challenge is a claim under the Inheritance (Provision for Family and Dependants) Act 1975, a no-contest clause is even less likely to be effective. That Act gives the court a statutory jurisdiction to make provision for eligible applicants, and it would be contrary to the policy of the Act to allow a testator to effectively contract out of it through a forfeiture clause.

4. Where the challenge is more speculative or vexatious, or where the beneficiary is simply unhappy with their share rather than raising a genuine question about validity, a forfeiture clause may carry more weight. However, even then, enforcement is not guaranteed.

5. The leading older authority is Nathan v Leonard (2003), where the court considered the effect of a forfeiture clause and confirmed that the court has discretion and will look at the nature and merits of the challenge.

Practical effect:

In reality, no-contest clauses in England and Wales operate more as a psychological deterrent than as a reliable legal barrier. They may give a disgruntled beneficiary pause for thought, particularly if they have been left a meaningful legacy that they would lose. But they cannot prevent a challenge from being brought, and they are unlikely to survive judicial scrutiny where the challenge raises genuine issues about the will's validity or where the claim is a statutory one under the 1975 Act.

If you are making a will:

Including a no-contest clause can be part of a broader strategy to discourage challenges, but it should not be relied upon as the primary defence. Far more effective measures include ensuring the will is properly executed with independent legal advice, obtaining a capacity assessment where there is any doubt, keeping a detailed attendance note, and considering a letter of wishes explaining the testator's reasoning.

If you are thinking of challenging a will that contains such a clause:

The clause should not on its own deter you if you have genuine grounds. The court will look at the substance of your challenge, not simply enforce the clause mechanically. That said, the clause does add a layer of risk, particularly if your challenge is weak, because you could lose your existing entitlement without gaining anything.

If you can give me more detail about your specific situation I can tailor the advice further.