Can a Gift Under my Will Stop a Claim Being Made Against my Estate When I Die?

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.

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.

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.