I have, on occasion, been asked if it is possible to add a clause to a Will which specifically excludes any beneficiary if they seek to challenge the Will in any way. Generally the advice is to avoid such clauses. This is for two reasons. Firstly, they are difficult to enforce and must be tightly drafted. Secondly, there is still a debate in legal circles as to whether or not such clauses should generally be held to be unlawful.
The leading case in this country is that of Nathan v Leonard, in which the general legality of such clauses was examined. In addition, the question of what should happen to the gift that is forfeited was considered.
In Nathan v Leonard the clause in question was a codicil, drafted by the Testatrix herself. Even for qualified solicitors and legal executives experienced in the area of Will drafting, getting a forfeiture clause, as they are known, correct can be challenging.
The provision would effectively have denied all of the beneficiaries their inheritance. This was because one of them, the Testatrix’s son, sought to challenge the distribution of the estate. Unfortunately the Testatrix, who drafted this clause herself, had done so in such a way that it was impossible to know what she intended. Her son made a claim under the Inheritance (Provision for Family & Dependants) Act 1975 as he felt that the provision made for him in the Will was not adequate. It was argued that the condition should be invalid simply because it sought to discourage people from making legitimate claims against an estate. This was therefore also against public policy.
In this particular case, a Charity mentioned in the Will argued on behalf of both itself and a second Charity named in the Will, that the clause itself was repugnant to the law. This was because the clause denied all beneficiaries their gift if just one beneficiary challenged the Will.
On the facts of the matter the judge decided that although the condition was valid as it was neither repugnant nor capricious, the wording of the codicil made the gift so uncertain as to be impossible to enforce. Unfortunately, as a solicitor had not been used to draw up the Will, there was no file available to show the judge what the Testatrix’s true intention was to aid his decision.
Therefore it is fair to say that a well drafted clause, stating that any beneficiary who seeks to challenge a Will should forfeit their gift, is valid. Even a clause which could result in all of the beneficiaries losing out could also stand. However, it is essential that the clause is drafted carefully and that what is to happen to the forfeited gift is also clearly expressed and legally enforceable.
If you have any queries or questions about this or any other matters relating to Wills or Probate, or if you need to draft a Will, or seek to challenge or defend a claim against an Estate, please contact James Trescothick-Martin on 01225 462871.