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.
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Imagine your aging, widowed mother (“Mother”) has dementia and moves into assisted living. You live about four hours away from Mother. Your sibling (“Sibling”) lives about five (5) minutes away from Mother. Sibling becomes increasingly involved in Mother’s affairs. One day Sibling provides you with a copy of Mother’s recently changed will. The new will leaves everything to Sibling. Given Mother’s dementia, you are highly concerned because you don’t think Mother had the capacity to make the new will. You ask Sibling about the new will. Sibling says “It’s what Mother wants.”
Spoiler Alert: This post contains spoilers about the recent Star Wars movie, 
I recommend that before an ill or very elderly person signs a will (or trust), that the estate planning attorney obtain a note from a doctor as to the person’s mental capacity. Doing so will help create a record that will make it more challenging to contest the will (or trust) on the basis that the person lacked testamentary capacity (i.e., the requisite mental capacity in order to execute a will or trust).
Without question, one of the most common estate disputes we see centers around allegations that one person unduly influenced another person to write (or re-write) a will or trust. The typical situation involves an elderly person, no longer capable of living independently, who becomes increasingly reliant on another person for care and assistance.
The new year is a good time to look ahead at what trends we may expect to see in the area of estate litigation in 2018. I have 4 predictions.
People typically picture the probate process going something like this: a person dies, you find their will, you take the will to the courthouse, the executor pays the debts, and then the executor distributes the assets. Of course, the process is much more complicated and time-consuming than that. Moreover, there are also multiple people involved in the process of administering an estate or testamentary trust. One of these critical people is the Commissioner of Accounts.
Imagine you’ve thought you were married for a decade and all of a sudden your spouse denies that you were ever married at all. The Virginia Supreme Court (the “Court”) recently decided just such a case in 
Actor Alan Thicke – best known for his role on the TV show 
Back in June of this year, the Virginia Supreme Court handed down a ruling in an estate dispute case that, while it didn’t particularly break new legal ground, provides a helpful overview of the current state of Virginia law regarding Virginia’s Slayer Statute as well as claims contesting a deed of gift on the basis of undue influence.
