Let’s say that one of your children hasn’t had contact with you since COVID in 2019. He or she has been off the radar and never calls. You may not feel obligated to give them an inheritance. Nj.com’s recent article entitled “We want to cut one child out of our will. Can we?” makes the obvious point that adult children aren’t legally entitled to an inheritance.
However, leaving one or more children out is one of the primary driver of will contests and probate litigation. A will contest is a probate proceeding where interested parties dispute the validity of a will. The most common legal grounds for disputing the validity of a will are undue influence, duress, mistake and the decedent’s lack of capacity when they signed the will.
When one or more children receive less or are disinherited, they may claim that the sibling who received more coerced their parent to do so. This is an especially tricky situation if the parent is in poor health and completely reliant on that child. In fairness, situations like these do lend themselves to improper influence being placed on seniors who may be fragile or sick.
To properly avoid a will contest, you should work with a qualified estate planning attorney who will document his or her file and prepare a will for you with appropriate language.
Note that it isn’t necessary or advisable to provide an explanation as to why you’re disinheriting a child. That’s because if you give a reason, that reason may cause controversy.
If avoiding litigation is a priority, as an alternative to totally disinheriting a child, your attorney can also talk with you about the different forms of “no-contest” clauses that can be placed in a will.
This clause, also called an `in terrorem’ clause, indicates that if a beneficiary raises a claim with respect to the will, he or she will lose his or her inheritance.
For a no-contest clause to be effective, a child must be a beneficiary of some amount in your will. Courts do typically uphold these clauses, unless there is probably cause to substantiate the claim of coercion or undue influence.
Reference: nj.com (Dec. 2, 2022) “We want to cut one child out of our will. Can we?”