This blog post discusses the steps that parents can take to disinherit a child and, in doing so, maximize their chances that their disinherited child won’t successfully challenge the parent’s will or trust.
When to Disinherit
Clearly, no parent should necessarily want to disinherit a child. But, there are a range of situations that could make such a decision not only warranted, but also necessary. For example, some children completely ignore their parents, or act so disrespectfully towards them, that it would be entirely appropriate to disinherit a child. I’ve seen scenarios whereby children have been disinherited for having tried to commit their parent to a mental institution, for committing adultery and abandoning their spouse and children, for shooting a relative, and for a whole host of other factors. In short, no parent should lightly undertake to disinherit their child, but there are some times when most people in society would find it to be appropriate.
Tip #1: Hire Legal Counsel to Draft the Will or Trust Amendment
It’s never a good idea to try to draft your own estate planning documents, and this especially applies when a parent is attempting to disinherit a child. It’s likely that the disinherited child will hire an attorney who will closely scrutinize the amendment to the will or trust that disinherited him, in order to assess whether there’s a basis to try to challenge it. Accordingly, this is not the time for a parent to attempt to simply draft a holographic will (a will entirely in his own handwriting) or use an internet-provided form will.
Tip #2: Establish a Paper Trail for why you are Disinheriting the Child
If the disinherited child tries to challenge the amendment to your will or trust that disinherited him, then your executor or trustee will need to defend the amendment in court. Your executor or trustee will have an easier time doing that if he can point to a trail of other evidence that you left that explains and corroborates your decision. For example, if you wrote about the decision in a diary or journal, or made handwritten notes about it, that would help demonstrate that the disinheritance was not simply an off-the-cuff act, but rather the result of a thoughtful process.
Also, if you discussed your decision with a close friend, neighbor, or member of the clergy, and shared why you were disinheriting the child, that would help show that you had good reasons for doing so, and that the disinheritance was not the result of another child having pressured you to do so.
Tip #3: Be Careful About Stating a Reason in the Will for the Disinheritance
Frequently when parents disinherit a child, their will says something to the extent of “for reasons personal to me, I do not provide for John Doe in my will.” This is often the best strategy to take, compared to stating in the will that your child “never visited you” or “stole money” or something to that effect. That’s because if you gave a reason in your will, and it turned out to be anything less than 100% true, the disinherited child could try to challenge the will on the basis that it was the product of fraud (in other words, that you were given false information about the disinherited child, which caused you to disinherit him). So, for example, if you said in your will that your child never visited you “in the past ten years”, but it turns out that he did visit you seven years ago, then the disinherited child could argue that the disinheritance was the product of fraud, in that the false information was fed to the parent by a jealous sibling. Moreover, the disinherited child could try to argue that your mental abilities had declined at the time that you executed the will (since you didn’t remember the facts correctly), or that you were unduly influenced by a jealous sibling into believing information that was false. In sum, if you provide a reason for the disinheritance in the will (which, again, I don’t recommend), you must ensure that every word is 100% accurate.
Tip #4: Consider not Telling the Child
If you tell a child that he’s been disinherited, you run the risk of him lashing out at you, or trying to repeatedly pressure you to put him back into your estate plan as a beneficiary. This pressure could go on for years or even decades and serve as a constant source of aggravation to you in the final years of your life. As a result, I think it’s preferable that a parent not tell a child, and leave the child to find out about it after the parent is deceased, and when the child can no longer lash out at the parent.
There is a competing school of thought that believes that in some scenarios, it’s preferable to let the child know, in order for the child to vent about it while the parent is alive, and hopefully come to peace with that fact by the time the parent passes away. Under this theory, the hope is that by the time the parent dies (which is the time that the child has legal standing to file a lawsuit contesting the validity of the estate plan), the child will have accepted the situation, compared to being shocked by a disinheritance, and, while he’s still fuming mad, file a lawsuit to contest the estate plan. My response to this theory is that in my experience, many disinherited children are never able to get over a disinheritance, so there’s often little to no benefit to trying to give the disinherited child a “cooling off” period by informing him earlier.
Tip #5: Consider a Modest Bequest Coupled with a No Contest Clause
Instead of outright disinheriting a child, some parents may want to consider providing in their wills for a modest bequest to the child instead, and also inserting a “no contest clause” into their will that provides that in the event the child unsuccessfully challenges the validity of the will, the child is disinherited. This could serve to deter a contest to the will by the child, and save the parent’s estate the hassle and legal fees in litigating to uphold the validity of the will. In order to effectively deter a contest, the bequest needs to be more than a minimal amount (or otherwise, the child will figure he doesn’t have much to lose in bringing the will contest).
In some cases, this strategy likely wouldn’t help much at all, given that some children could be so emotionally charged that they couldn’t be effectively deterred from contesting the will. So, it would be important for the parent to diligently evaluate their child’s emotional disposition and inclination towards litigation to assess whether this would be a feasible deterrent or not.
