Disinheriting a Child or Heir in a Will or Trust

September 22, 2011 by Scott C. Soady

The decision to disinherit a child can be very difficult for some people. Other people just want to give less to one child and more to another. There are usually valid reasons behind the decision and it is not one people take lightly. Most clients I see are reluctant to share their reasoning behind their decision. They think, correctly, that “they can leave money in their will or trust to whomever they wish.” However, it is very important to discuss your reasoning with your attorney. Once you pass away your estate planning attorney is in the best position to testify about the language and intent of your estate plan.

You intent is crucial to determine the validity of your will and trust if it is ever contested. Many people think, incorrectly, that a will or a trust cannot be challenged. However, any estate planning document can be challenged by a disinherited heir on two grounds. The first is undue influence, meaning that the person who benefited from the will or trust exerted too much influence over the person leaving them an inheritance. The only other ground is lack of capacity meaning that the person making the will or trust did not understand what they were doing when they executed their estate plan.

There are a few ways to prevent a contest of an estate plan. One is to have a ‘no-contest clause’, sometimes referred to as an ‘in terrorem clause’ in the will and trust. Basically this states anyone contesting the terms of the estate plan gets nothing. The other popular phrasing is the person contesting gets one dollar. The problem is these clauses only work if you give the person you are disinheriting something in the first place. I always advise clients who want to disinherit children completely to leave them some amount of money so that a disinheritance clause will work. The purpose of the clause is to take an emotional decision about being disinherited and making it an economic decision.

If someone is disinherited there first reaction is to be angry and they take the news very personally. They will fight because there is an injustice in their eyes and something needs to be done about it. However, if they realize they get a sum of money if they do not fight, this makes them pause and decide rationally if it is worth fighting over.

Another technique I have seen is for the client to write a letter to the disinherited child to be delivered after their death. No- contest clauses can be very harsh in a will or trust. They often just state a particular person is disinherited. This can leave a void and the disinherited person is left wondering why. A letter can spell out in detail the reasoning behind the decision and provides the needed explanation.