Disputes after death are common in estate planning, and forfeiture clauses in wills are sometimes considered where there is a known risk of a challenge. Even a carefully prepared will can be contested by disappointed relatives, beneficiaries, or dependants who believe the outcome is unfair, leading clients to ask whether wording can be included to discourage litigation.
This article explains what these clauses are, when they can be useful, and the key limitations to be aware of.
What are forfeiture clauses in wills?
A forfeiture clause is a provision in a will stating that a beneficiary will lose all or part of their entitlement if they bring specified claims against the will or the estate.
The claims covered might include, for example:
- claims under the Inheritance (Provision for Family and Dependants) Act 1975 for lack of reasonable financial provision;
- allegations of lack of testamentary capacity;
- claims based on undue influence;
- lack of knowledge and approval; or
- allegations of fraud or forgery.
These clauses are sometimes described as no-contest clauses or in terrorem clauses, meaning they are intended to deter challenges by creating a financial risk for the person considering it. They do not prevent a claim being made, but they expose the beneficiary to the risk that, if proceedings are unsuccessful, their entitlement under the will is forfeited.
Why are these clauses used?
Will and estate disputes can be damaging. Even where a challenge ultimately fails, legal costs may significantly reduce the value of the estate.
Forfeiture clauses in wills may therefore be used to:
- discourage speculative or tactical claims;
- reinforce the testator’s intentions where provision is unequal or contentious;
- protect the estate for vulnerable beneficiaries; and
- reduce disruption to a family business, farm, or wider planning.
An example
A father leaves his house to a daughter who cared for him for many years. His son receives a cash legacy of £50,000. The father expects that the son may feel aggrieved and may consider a challenge.
A forfeiture clause could provide that, if the son contests the will, his cash legacy is forfeited. That does not prevent the son bringing proceedings, but it may cause him to think carefully before doing so.
Potential uses of forfeiture clauses in wills
These clauses can be useful in a number of situations.
Blended families
Where a testator has children from different relationships, competing expectations are common. A clause may help discourage litigation after death.
Unequal gifts
If one child receives significantly less than another, the testator may anticipate a challenge. A forfeiture clause can reinforce the intention that the distribution should stand.
Family businesses or farms
Where an estate includes a business or agricultural property that is left primarily to one beneficiary, litigation can disrupt trading or occupation. A clause may help reduce the risk of one beneficiary using proceedings as leverage.
Limitations and risks
It is equally important to understand what these clauses cannot do.
They do not guarantee no dispute
A determined claimant with a strong case may proceed regardless, particularly if they receive little under the will.
They may highlight the testator’s concerns
Including a forfeiture clause may flag to a beneficiary that the testator anticipated a potential claim.
They do not prevent the court from doing its job
A will cannot remove the court’s role. The court retains jurisdiction to consider any potential claim.
They are of no benefit where a person is totally excluded
The deterrent effect of forfeiture clauses in wills is in giving a beneficiary something to lose. Where a person is entirely excluded, the clause offers no protection.
They are not a substitute for good preparation
A forfeiture clause is a tool but it not a substitute for good practice, which still includes:
- clear attendance notes and file records;
- capacity evidence where appropriate; and
- a reasoned explanation for unusual gifts or exclusions (usually in a letter of wishes).
Sim v Pimlott and others [2023] EWHC 2296 (Ch)
The case of Sim v Pimlott and others [2023] EWHC 2296 (Ch) provides a useful illustration of the court’s approach. It concerned an application by a wife under the Inheritance (Provision for Family and Dependants) Act 1975 on the estate of her late husband, whose will included a forfeiture clause alongside provision she did not consider reasonable.
The court accepted that, where a will already made objectively reasonable financial provision, it could be legitimate to include a clause intended to discourage what might otherwise be an unwarranted claim. The judge also made clear that it would generally be wrong for a claimant to give up a benefit under the will by bringing a claim and then argue that the will was unreasonable because that benefit had been lost.
However, the case also confirms that such clauses are not absolute. The court still examined whether reasonable financial provision had been made overall, and intervened where it found the wife’s housing needs had not been adequately met.
Conclusion
Forfeiture clauses in wills can play a useful role where there is a known risk of disagreement or concern that a beneficiary may seek to challenge the arrangements after death.
Their effectiveness depends on careful drafting and realistic expectations. They are not a complete bar to challenges, and they do not prevent the court from dealing with genuine disputes, but when used appropriately can be a useful risk‑management strategy.
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