IAN JOHNSON�

CONDITIONS NOT TO DISPUTE WILLS AND THE INHERITANCE(PROVISIONS FOR FAMILY AND DEPENDANTS) ACT 1975

ABSTRACT. In this article, the author reviews the recent decision of the High Courtin In the Estate of Nathan Deceased [2002] N.P.C. 79, The Times 6/4/02, relating to thevalidity and effect off conditions not to dispute wills (i.e., gifts by will on condition thatthe beneficiary does not seek to challenge the will) and how such conditions affect claimsmade under the Inheritance (Provision for Family and Dependants) Act 1975. The decisionin this case reveals a considerable tension between the principle of testamentary freedomand the aims and operation of public policy in this area of the law. In the article, the authormaps out the changes which will have to be made in statements of the law in leading text-books relating to conditions not to dispute wills and further argues that certain dicta in thecase suggest that the High Court has now gone too far in preferring testamentary freedomover public policy, opening a door which may yet permit the triumph of constructive fraudin some cases.

KEY WORDS: conditions not to dispute wills, constructive fraud, In the Estate of NathanDeceased, Inheritance (Provision for Family and Dependants) Act 1975, public policy,testamentary freedom

CONDITIONS NOT TO DISPUTE WILLS

Until recently, the law relating to conditions not to dispute wills1 was fairlysummarised in the following passage from Williams on Wills:

Beneficiary’s rights protected. A condition not to dispute a will is notvoid for uncertainty, nor as being contrary to good morals or public policy,nor prohibited by any positive law, but, on the other hand, it is not brokenif the proceedings taken by the legatee are necessary for the protection ofhis rights.2

This passage must now be re-assessed in light of the recent decision inIn the Estate of Nathan Deceased, Nathan v Leonard and Others,3 in whichJohn Martin Q.C. sitting as a Deputy High Court Judge reviewed not only

� LLB (Hons.), PGCE, Barrister-at-Law, Atlantic Chambers, Cook Street, Liverpool,and Senior Lecturer in Law, Manchester Metropolitan University.

1 i.e., a gift in a will made on condition that the beneficiary does not seek to challengeor dispute either the validity of the will or its terms.

2 8th edition, at paragraph 35.38.3 [2002] N.P.C. 79, The Times 6/4/02 and 2002 WL 820080 (Ch D).

Liverpool Law Review 25: 71–77, 2004.© 2004 Kluwer Academic Publishers. Printed in the Netherlands.

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the law relating to conditions not to dispute wills but also considered howthat law impacts on claims under the Inheritance (Provision for Familyand Dependants) Act 1975 (hereafter the 1975 Act). In this case, the Test-atrix, having made her last will together with her first codicil thereto (bothprofessionally drawn), proceeded to make a second codicil to her will(acting in person without professional advice) containing the followingprovision:

As a safeguard to my wishes and to protect them from any parties be they family membersor the charities, should they wish to contest or disagree with my will. Then, I want thefollowing clause to over ride everything previously stated in my will. The following willbecome my will in its entirety. This I hope will prevent anyone from taking this case ofaction.

I GIVE DEVISE AND BEQUEATH My beneficial share in the Property known asOakwood Farm, to my beneficiaries to SALLY LEONARD and PAUL LEONARD. Freeof any taxes, which will be covered by my estate.

I also give to the above named persons all my real and personal property. This clausecannot be superseded, and will only come into being if at anytime during the life of theTrust or up to 80 years has elapsed.

By her will, as varied by the first codicil, the Testatrix, having appointedMrs. Sally Leonard as her executrix, and having later made certain smallspecific and pecuniary bequests, directed that Sally and Paul Leonard(hereafter “the Leonards”) should be entitled to occupy the property,Oakwood Farm, in which the Testatrix had a beneficial half share, foras long as they wished subject to certain conditions, and subject theretofurther directed that her residuary estate be divided into three parts, onepart being held for the Leonards and the other two parts being held ondiscretionary trusts for her son, Andrew, his children and remoter issueand two named charities. The will and the two codicils thereto were dulyproved by the executrix.

Within six months of the grant of probate, Andrew commenced pro-ceedings under the 1975 Act for an award of further provision from theTestatrix’s estate. In those proceedings, the following questions relating tothe provisions of the second codicil set out above were set down for trialas preliminary issues:

(i) Is the first paragraph of the second codicil set out above a validcondition in law?

(ii) If so, has there been a breach of that condition (by the commencementof the proceedings or otherwise)?

(iii) If so, what is the effect of the gift over in the second paragraph of thesecond codicil set out above?

At the hearing of these preliminary issues before John Martin Q.C., theLeonards contended that the condition was a valid condition and had been

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triggered by either the commencement of these proceedings or some priorpreparatory acts with the consequence that the entire estate was now vestedin them. The contrary arguments on these three preliminary issues weretaken by one of the two charities – MIND. As for the applicant/claimant,his position at this point in the proceedings was largely neutral on the basisthat, whether he was a mere beneficiary under a discretionary trust (underthe will and first codicil) or someone to whom the Testatrix had givennothing at all (under the second codicil), he was nevertheless entitled to anaward under the 1975 Act.

John Martin Q.C. considered these three preliminary issues and deter-mined as follows.

Valid Condition?

One interesting point that arose in considering the first issue was whethera condition that not only deprived the person challenging the will of anybenefits under it (here, the claimant) but also deprived other “innocent”parties of their benefits (here, the two charities) could be a valid conditionat law. In considering this point, John Martin Q.C. remarked that such acondition went further than any condition that had been the subject of anycase reported in the UK or any Commonwealth jurisdiction.

MIND argued that the condition was void for repugnancy. As a matterof general principle, a condition is void for repugnancy if it is inconsistentwith the nature of the interest given to the donee – e.g., conditions thatpurport to impose restrictions on the alienation of property given abso-lutely or attempt to forfeit an absolute gift in the event of the donee’sbankruptcy. In support of his arguments, counsel for MIND submitted that,under the first will and codicil the legacies (given to persons who werenot party to these proceedings) were payable immediately and absolutely(subject to any claims made against them in the due administration of theestate), but, if it were held that the condition was valid, these legacies couldbe subsequently defeated by the actions of someone wholly unconnectedwith the same. This was repugnant to the nature of what was otherwise anabsolute gift of these legacies and, therefore, (so the argument went) thecondition must be void at law as regards the legacies. What is more, sincea condition fails for all gifts if it fails for any,4 the condition was whollyineffective.

John Martin Q.C. disagreed. He drew a distinction between (i) a condi-tion that attempted to limit or control the rights of ownership of what wouldotherwise be an absolute gift – which is repugnant to the nature of that

4 See Re Smith [1916] 1 Ch 369.

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gift, and (ii) a condition that divests a donee of the ownership of such agift should he (or, indeed, someone else) dispute the will under which it isgiven – which is not. In short, while a testator cannot dictate what a doneecan and cannot do with an absolute gift, he can divest the donee of that giftif the donee (or someone else) should choose to commit a defined act. Onhis analysis of the law, the fact that someone else might commit an act thatresults in the divesting of an absolute gift made to another did not affectthe validity of the condition under which it was given. The effect of sucha condition may be arbitrary or capricious but a testator was entitled tobe arbitrary or capricious if he so wished. That was the very nature of theconcept of testamentary freedom in the law of England and Wales.

The learned Judge went on to dispose of the arguments of counsel forMIND that were founded on a claim that public policy favoured the promptand orderly administration of the estates of deceased persons in similarfashion. While it might be in the interests of the state to ensure the dueand timely administration of a deceased’s estate (John Martin Q.C. didnot necessarily accept that it was), the manner in which a deceased persondisposes of his estate on his death is a matter of private property and no realconcern of the state; and, in any event, (so the learned Judge contended) itis the policy of the law to protect testamentary freedom.

The second “public policy argument” put forward by counsel for MINDwas that the condition was void on the basis that its effect would be to deteran applicant from making an application under the 1975 Act. If applicantswere so deterred, that would be contrary to public policy; and, it was publicpolicy to allow those who were entitled to an award under the 1975 Act topursue a remedy under that Act without interference from others.

Once again, John Martin Q.C. disagreed. On the basis that a claim underthe 1975 Act would trigger the condition, the learned Judge took the viewthat mere deterrence was not enough to make the condition void on thegrounds of public policy. Such a condition did not prevent an applicantmaking his claim under the 1975 Act; and, if in making his claim heforfeited his interest under the will, that would be something that the courtwould be entitled to take account of in determining that claim.

At this point, counsel for MIND played his final card on the first issue:he further submitted that the condition contained in the first paragraph ofthe second codicil set out above was void for uncertainty. With this, JohnMartin Q.C. agreed. Conditions of defeasance had to be clear so that thoseaffected by the same could see with certainty the precise event that wouldcause their gift to be divested.5 The concluding words of the final para-graph of the second codicil set out above – “This clause . . . will only come

5 See Clayton v Ramsden [1943] A.C. 320 per Lord Russell of Killowen at 326.

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into being . . . [etc.]” – which purported to control the whole operation ofthe condition – were meaningless, and therefore the whole condition mustbe void.

On the basis of this, the second and third preliminary issues did not fallto be decided; nevertheless, John Martin Q.C. chose to express his viewson those issues as follows.

Breach of Condition?

In the opinion of the learned Judge a claim under the 1975 Act amountedto (in the words of the second codicil) “a contest to or disagreement withthe will”. And, therefore, if the condition had been valid, there would havebeen a breach of that condition on the commencement of the proceedings.

In his submissions, counsel for MIND had submitted (on the basis ofthe authorities cited in support of the final proposition in the passage fromWilliams on Wills set out above6) that forfeiture for breach of the condi-tion can only take place if the claim contained in those proceedings isultimately unsuccessful. John Martin Q.C. reviewed these authorities andheld that the cases that supported the conclusion that a successful challengeto a will escapes such a condition were all based upon the fact that the chal-lenge to the will had the effect of setting aside both the will and condition.For example, if X challenges a will on the basis that the testator lackedtestamentary capacity and is successful, the whole will (which includesthe condition that seeks to deter a challenge to the will) is invalid.

Yet, this may not always be the case. A successful “challenge” to thewill based upon the claim that some but not all the gifts in that will areinvalid on the ground of want of knowledge and approval may leave thecondition that effects a forfeiture of a gift in the event of a challenge tothe will entirely intact. If Z, a residuary beneficiary, were to challengecertain gifts on that basis (i.e., want of knowledge and approval) and besuccessful, should his gift be subject to defeasance on the basis that he hasacted in breach of a condition that divests his residuary gift should he seekto challenge the will? For John Martin Q.C. the answer to this questionis wholly matter of construing the condition itself. It may be possible toconstrue the condition as applying only to unsuccessful challenges; but, ifit is not, then the condition must take effect whether the challenge succeedsor fails. In the present case, the learned Judge took the view that, had thecondition been valid, the forfeiture would have taken place whether or notthat claim had been successful.

6 See Stevenson v Abington (1863) 9 L.T. 74, and Evanturel v Evanturel (1874) L.R. 6P.C. 1.

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Effect of Gift Over?

Subject to one particular point, the effect of the gift over – had the condi-tion been valid – would have been to pass the whole estate to the Leonards.As to this point, it was submitted by counsel for MIND that, in the circum-stances of this case, equitable relief from forfeiture was available and suchrelief should be granted to all those beneficiaries whose interests would beforfeited through no fault of their own.

John Martin Q.C. accepted that – on the authorities – the court hadjurisdiction to relieve against forfeiture in cases such as this. Yet, perhapsunsurprisingly, given the learned Judge’s support for the principle of test-amentary freedom, he went on to indicate that, on the facts of the case,he would have refused to grant such relief on the basis (i) that the failureof a number of gifts to certain beneficiaries in the event of a challenge tothe will by someone other than those beneficiaries was exactly what theTestatrix intended, and (ii) that the granting of relief to these beneficiariesbut not to the claimant would entail a difficult re-writing of the will whichhe was not prepared to do.

CONCLUSION. IT’S ALL A QUESTION OF CONSTRUCTION OR IS IT?

If correct, what is the effect of this decision on the passage quoted fromWilliams on Wills?

Firstly, a condition not to dispute a will may (not “is not”) be void foruncertainty – it’s all a question of construction. The best that one can say isthat it is not void for uncertainty per se. Secondly, a condition not to disputea will is not void as being contrary to good morals or public policy eventhough its effect may be to deter the making of a claim under the 1975 Actand even though its effect may be to deter the making of claims challengingthe validity of the will that are well-founded. Similarly, a condition not todispute a will is not void as being contrary to public policy simply becauseits effect (amongst others) is to penalize a beneficiary who does not seek tochallenge the validity of the will. Finally, (although this part of the decisionis only obiter) a condition not to dispute a will may (not “is not”) be brokenby the taking of proceedings which are necessary for the protection of alegatee’s rights and which are ultimately successful – it’s all a question ofconstruction.

The most questionable part of the decision in In the Estate of NathanDeceased appears to be the second proposition. Let us imagine that X is apecuniary legatee under a will. His legacy is subject to a condition whichprovides that if he challenges the will the legacy falls into residue. X is in

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possession of clear evidence that a substantial gift to another person, Y, inthe will has been obtained through the use of undue influence against thetestator. No other gifts under the will are affected by this undue influence.The court is perfectly capable of rejecting part of a will obtained by undueinfluence (as it is also capable of rejecting part of a will obtained by fraudor rejecting part of a will made while the testator did not have a sounddisposing mind). Should it not be public policy to encourage X to make itknown to the court that the gift to Y has been obtained through the use ofwhat is constructive fraud? If so, shouldn’t public policy strike down anyprovision – the condition against challenging the will – that discourages Xfrom taking such action? The concept of testamentary freedom cannot beused in these circumstances to support a gift that has been obtained by actsthat have effectively removed that freedom. Yet, if these facts were beforeJohn Martin Q.C., it would seem that the question of whether X forfeitedhis gift in the event of a successful challenge to the will would be whollyresolved on the construction of the condition. Similar points could be madewhere the gift to Y was a gift which lacked the requisite knowledge andapproval of the testator.

It is hoped that, should this point come before the Court of Appealone day, greater support will be shown for public policy as opposed totestamentary freedom.

On a final note, it is worth remembering, particularly from a draftingpoint of view, that a conditions not to dispute a will that is annexed solelyto a gift of personality is subject to the in terrorem doctrine so that if thereis no gift over the condition is bad; in contrast, gifts of realty subject to thesame condition are good.7

School of LawManchester Metropolitan UniversityElizabeth Gaskell CampusManchester M13 0JAUKE-mail: I.Johnson@mmu.ac.uk

7 The author also regularly presents a continuing professional development courseentitled “Contentious Probate” for “B.P.P.”.