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The recent case of Sim v Pimlott and others [2023] EWHC 2296 (Ch) highlights the potential conflict arising between the increasingly popular “non-contest clauses” and claims for reasonable financial provision brought under the Inheritance (Provision for Family and Dependants) Act 1975 (the “Inheritance Act”).

Non-contest clauses seek to dissuade will challenges or Inheritance Act claims, typically by stating a claimant will lose their entitlement under a will if they seek to bring either of those claims.

Background

Dr David Sim (“Dr Sim”) had lived a "complicated life”, having been married 3 times, leaving 5 children and 9 grandchildren. Dr Sim died in January 2018, less than a month after executing his last valid will on 19 December 2017. He left an estate with a net value of over £1.2 million.

At the time of his death, Dr Sim had been in a long relationship of some 35 years, and had been married to his wife, Valerie Sim for over 19 years.

Whilst Valerie and Dr Sim remained married at the date of his death, their relationship had significantly deteriorated, and divorce proceedings were pending.

Dr Sim wished to limit any provision to Valerie under the terms of his will and had therefore included a non-contest clause in his will.

The will provided for Valerie to receive:

  1. A pecuniary legacy of £250,000, on the condition that Valerie entered into a written deed of release, agreeing that she would not pursue a claim under the Inheritance Act.
  2. A further pecuniary legacy of £125,000, on the condition that within 6 months of the date of Dr Sim’s death Valerie had released her interest in the Dubai property; and
  3. A life interest in the Residuary Estate.

Valerie would also receive approximately £2,000 per month from Dr Sim’s NHS pension.

The claim

Despite the non-contest clause in the will, Valerie brought a claim for reasonable financial provision under the Inheritance Act. Valerie also sought a declaration in respect of various items that had been gifted to her by Dr Sim during their relationship.

The findings

Considering the unusual circumstances of the case, and given Valerie’s conduct towards Dr Sim’s during the last few months of his life was “simply unwarranted, and wholly unacceptable”, the court found:

  1. It was entirely reasonable for Dr Sim to change the terms of his will.
  2. The legacies constituted reasonable financial provision.
  3. It was reasonable for the conditions to be attached to the pecuniary legacies, which were intended to discourage “an unwarranted claim” under the Inheritance Act.

Further, given that Valerie failed to comply with the conditions attached to the pecuniary legacies, the court found that under the terms of the will Valerie was only entitled to receive the life interest in the residuary estate.

Considering the significant financial disadvantage to Valerie resulting from the failure to provide for an option to take a capital sum from the life interest, the court agreed to vary the terms on which the residuary estate was held and ordered the Trustees to provide Valerie with a capital sum of up to £400,000 to enable Valerie to purchase a property.

What can be learned about non contest clauses in Sim v Pimlott?

The decision in Sim v Pimlott highlights the potential effectiveness of appropriately pitched non-contest clauses. 

The likely enforceability of non-contest clauses will be determined objectively and against the specific facts of each case. Broadly speaking, the judicial wind appears to be blowing in support of carefully considered and worded non contest clauses, placing more emphasis on testamentary freedom.

When considering including a non-contest clause in a will or considering the prospects of successfully challenging the provisions of a non-contest clause, it is sensible to first obtain specialist legal advice.

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