Sim v Pimlott

The background of the matter

Valerie and David had what is described as a “complicated” marriage, with Valerie having made numerous criminal allegations against David and divorce proceedings had been initiated; however, they had not divorced by the time of his death.

David died on 16 January 2018 with a net estate of £1,209,000. 

His Will dated 19 December 2017 provided that Valerie would receive:

1. A pecuniary legacy of £250,000 on the condition that she executed a “written deed of release” in respect of any claim she may have under the 1975 Act
2. A pecuniary legacy of £125,000 on the condition that she released her interest in a property which she jointly owned with David in Dubai (to allow the property to pass in accordance with the Will and / or Sharia Law)
3. A life interest in the residuary estate

In addition to the above, it is understood Valerie also received David’s NHS pension of £1,750pcm.

The decision

When considering if the Will made reasonable financial provision for Valerie, the Court looked at (i) whether the financial provision set out within the Will for Valerie was reasonable; (ii) whether it was reasonable to include what has become known as non-contest clauses; and (iii) whether a claimant can subsequently argue a Will has failed to make reasonable financial provision as a result of any effective non-contest clause.

The Court found that “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”. 

In short, where a Will is objectively reasonable, then it's also reasonable to include a provision intended to discourage a beneficiary (i.e., Valerie) from bringing a claim, and the potential claimant cannot then subsequently seek to assert that the Will does not make reasonable financial provision as a consequence of the effectiveness of such a clause.

The Court found in this matter that the Will did not make reasonable provision in one sole respect – it did not provide Valerie with accommodation (as notwithstanding her life interest, the family home would need to be sold to pay the pecuniary legacies). For this reason, the Court varied the trusts on which the estate was held to enable a capital sum to be set aside to provide a property for Valerie which she could occupy rent-free as a life tenant.

Practical use of no-contest clauses

Sim v Pimlott is the latest case which confirms the efficacy and enforceability of non-contest clauses within Wills. It's, therefore, a useful shield to limit the prospect of a potential claim (whether under the 1975 Act or a claim against the estate more generally). 

However, any non-contest clause must be appropriately pitched – in short, it must be high enough to be a sufficient deterrent so the potential claimant will not wish to lose that sum, but at the same time it must not be so high that it simply acts to provide the provision for the potential claimant the testator wishes to avoid. It is therefore always helpful to take advice from both a contentious and non-contentious probate specialist to enable full and proper consideration of the potential merits of using a non-contest clause and at what level it should be pitched.