No Contest Clause in a Will (In Terrorem Clause) in England and Wales

Many people making a will are concerned that a family member might challenge it after their death. One response that frequently comes up is the idea of a “no contest clause” — a provision that strips a beneficiary of their gift if they dispute the will. In the United States these clauses (known as in terrorem clauses) are common and partially enforceable. In England and Wales the position is more nuanced and, for most purposes, less useful than people expect.

This article explains what no contest clauses are, how English courts treat them, and what genuinely effective steps a testator can take to reduce the risk of a successful will challenge.

What is a no contest clause?

A no contest clause (also called an in terrorem clause or a forfeiture condition) is a provision in a will that purports to revoke or forfeit a gift to a beneficiary if that beneficiary challenges the will. The typical wording runs along the lines of:

“I give £50,000 to my son John, provided that he does not contest or otherwise challenge the validity of this will. If John contests or challenges this will, the gift to him lapses and falls into residue.”

The purpose is deterrence: the threat of losing a legacy is intended to discourage a beneficiary from bringing a challenge they might otherwise pursue.

The law in England and Wales

English courts have consistently been reluctant to enforce no contest clauses, for two overlapping reasons.

Public policy and the administration of justice

There is a strong public policy principle in English law that a person should not be penalised for seeking access to justice. If a beneficiary has reasonable grounds to believe a will is invalid — because the testator lacked testamentary capacity, or was the victim of undue influence, or because the will was not properly executed — courts are uncomfortable with provisions that financially punish them for raising those concerns. A clause that discourages people from reporting genuine invalidity is seen as contrary to the proper administration of justice.

The conditional gift problem

A will clause can validly attach conditions to a gift. “I give my house to Sarah provided she does not remarry” is a recognised (if controversial) form of conditional gift. In theory, “provided she does not challenge this will” is also a condition. However, this only works if the will is valid in the first place — if the will is successfully challenged and set aside, the no contest clause is set aside with it, because it does not exist in any prior valid will. The clause therefore only operates against unsuccessful challengers.

Where a challenge fails (the will is upheld), the court must then decide whether to enforce the no contest condition and strip the challenger of their gift. English courts have generally declined to do so where the challenge was brought on reasonable grounds, distinguishing between vexatious or opportunistic challenges and legitimate good-faith disputes.

In Re Dickson [2017] EWHC 3 (Ch), the High Court confirmed that a conditional gift of this kind is not automatically void as contrary to public policy — but in that case and others, courts have used their equitable discretion not to forfeit the gift where the challenger acted reasonably.

The practical result: limited deterrence

The upshot is that a no contest clause in an English will:

• Is not automatically void — the courts will not simply strike it out at the drafting stage.
• May have some deterrent effect on a beneficiary who stands to lose a meaningful gift and whose grounds are uncertain.
• Will generally not be enforced against a challenger who had reasonable grounds for bringing the challenge, even if that challenge ultimately fails.
• Is entirely ineffective if the challenge succeeds — the whole will is set aside, taking the no contest clause with it.
• Provides no protection at all against a claim under the Inheritance (Provision for Family and Dependants) Act 1975 — a claim for reasonable financial provision is not a challenge to the will’s validity and is not affected by a no contest clause.

In short, a no contest clause is a weak deterrent in England and Wales, not a reliable mechanism for preventing will disputes.

What actually works to prevent will challenges

There are several steps that genuinely reduce the risk of a successful challenge, all of which address the underlying grounds for challenge rather than simply threatening a financial penalty.

Medical capacity evidence

The most common ground for challenging a will is lack of testamentary capacity. The most effective counter is contemporaneous evidence that capacity existed at the time of signing. Options include asking the GP for a capacity assessment shortly before execution, or arranging for the will to be witnessed by a solicitor who can record their observations of the testator’s capacity.

Video recording of the signing

A short video recording of the testator signing and briefly explaining their wishes in their own words provides powerful evidence of capacity and the absence of undue influence. This is increasingly recommended for testators who are elderly, have received a dementia or cognitive decline diagnosis, or are making a will that departs significantly from family expectations. The recording should be kept with the original will.

Solicitor involvement

A will drafted and witnessed by a solicitor who took attendance notes of the instructions is significantly harder to challenge on undue influence or capacity grounds than a will witnessed only by family members. Solicitors are trained to detect the warning signs of both. If cost is a concern, even a single appointment for advice and witnessing (without full drafting) provides a layer of professional oversight.

Letter of wishes explaining the reasoning

A letter of wishes is not legally binding, but it allows the testator to explain in their own words why the will is structured as it is — for example, why one child receives less than another, or why a cohabiting partner is excluded. Courts frequently take letters of wishes into account in Inheritance Act proceedings as evidence of the testator’s intentions.

Keeping the will up to date

An outdated will — one that predates a significant change in family circumstances — is more vulnerable to challenge because it may look as though the testator was not making their wishes afresh. A will executed close to death, reflecting current relationships and assets, carries more credibility than one made 20 years earlier and never updated.

Lifetime gifts to reduce the estate

The less value there is in the estate, the less incentive there is to challenge the will. Lifetime gifts of property, cash, or investments (subject to IHT and CGT planning) can reduce the pool available to would-be challengers while also getting assets to intended beneficiaries sooner.

No contest clause vs the forfeiture rule

There is an important distinction between a no contest clause and the forfeiture rule. The forfeiture rule is an automatic rule of public policy that prevents a person from benefiting from a will or intestacy where they have unlawfully killed the testator. It operates by operation of law and does not require any provision in the will. It is entirely separate from contractual or testamentary no contest clauses.

The two are sometimes confused, but they address completely different situations: the forfeiture rule applies to unlawful killing; no contest clauses attempt to address the risk of legal challenges.

Summary

• No contest (in terrorem) clauses are not automatically void in England and Wales but are rarely enforceable in practice.
• Courts will not generally strip a beneficiary of their gift for bringing a challenge on reasonable grounds, even if that challenge fails.
• A no contest clause is entirely ineffective if the challenge succeeds — the whole will falls, taking the clause with it.
• Such clauses do not affect Inheritance Act 1975 claims, which are not challenges to validity.
• Practical alternatives — capacity evidence, video recording, solicitor witnessing, a clear letter of wishes — address the grounds for challenge directly and are far more effective.