From time to time, a client asks me, “do you think I’m a terrible person if I want to leave a child of mine nothing in my Will or Trust … he hasn’t spoken to me for 20 years … he never writes or calls, not even on Mother’s Day, Thanksgiving or Christmas … we had a disagreement a long time ago, and I’ve forgiven him but he says he’ll never forgive me.”
Sometimes people want to disinherit a child, grandchild, parent or other person, and they have their reasons. There is no law that says that you can’t disinherit a family member (although there are laws that protect a spouse from being totally disinherited). However, to make sure your wishes are followed and no litigation arises to invalidate your wishes, careful steps and planning need to be followed.
I just finished a case where a client’s father had left his entire estate to my client – and disinherited 2 other children. Sure enough, the disinherited children wanted their “fair share” from the estate and they filed a lawsuit to have the father’s Will and Trust invalidated. They made several accusations such as:
- father was not of sound mind;
- father was unduly influenced by the son who was not disinherited;
- that son coerced ‘feeble old dad’ into leaving everything to him;
- father had mentioned to them that even though they’d had no contact with him for 20+ years, he was forgiving them and planning on changing his Will and Trust to divide the estate “equally.”
Well, father never made the changes and there was a considerable amount of evidence showing that he never intended to make any changes.
Although I was not the attorney who prepared the Will and Trust, in hindsight I could see many precautions that the father could have taken to protect the integrity and validity of the Will and Trust, but didn’t. For example, the Will and Trust should have contained a provision that read:
“This Will and Trust are the final expression of my intentions. It can only be changed or amended by a written amendment signed by me. No verbal expressions that I may ever make, or that I may be accused of making, indicating an intent to change my Will or Trust, shall have any legal significance.”
There were also other precautions that could have been taken, but because they were not significant and costly lawsuit ensued that took a long time to resolve. In the end, the son who was included in the inheritance gave more than a third of his inheritance to the other two children in order to end the lawsuit and “buy” peace.
The moral of the story? Disinheriting someone is legal and possible, but it must be done very carefully and the legal documents need to say more than “I disinherit you.”