Our son has an addiction & mental health issues. Can we leave him out of our wills?

Not all parents want to treat their children equally in their wills, and they usually have what they consider good reasons for this. A reader recently left me a note asking about leaving out a son who has mental health issues and an addiction. Here is the question, followed by my comments:

"We have two children - one of whom has addiction and mental health issues. We would like to leave the bulk of our estate to our daughter who is married with children. How do we ensure that our son cannot contest the will? What do we leave him to ensure that he cannot contest?"

I assume that the son that you want to leave out is the child with addiction and mental health issues.

This question doesn't have an easy answer. First of all, let's talk about whether you can leave him out of your will. I believe your concern is that a person with addictions may simply blow his inheritance by spending it on his addiction. This is certainly a valid concern, and one that I've heard from many parents over the years.

I'm concerned, though, about the fact that your son has mental health issues. Is this a condition that prevents him from earning a living? The reason this concerns me is that a parent cannot disinherit a child with a mental disability because such a child is considered in law to be a dependent of the parent. Obviously I don't know the facts of your son's situation, but I urge you to consider the fact that he might be a dependent for the rest of his life if his mental illness is in fact a disability.

If your son is a dependent, you cannot ensure that he won't contest the will. In fact, the likelihood that he would contest it is quite high. All provinces and territories have what is known as "dependent relief" laws that give an automatic right to dependents to sue estates which do not properly support them.

If your son is a dependent, you would most likely find that leaving his share of the estate in a trust would work for him. Using a trust, you could restrict the amount of spending money he has available. You could set up the trust so that the trustee pays the basics - rent, utilities - directly without the funds passing through your son's hands.

Now let's look at the situation as it would be if your son is not in fact a dependent. If he is not, you can choose to disinherit him or to leave him only a small part of your estate. You are not required to support an adult child who is capable of supporting himself. (Note that the law in BC is different on this point, but I don't know which province you live in).

There is no magic number or formula that would prevent your son from contesting your will. Over the years, many people have told me that leaving a person $1 prevents them from contesting the will, but that is not true. You can strengthen your will by including a short statement in it that you have your reasons for treating your children unequally in your will.

You might also consider using an in terrorem clause, which is sometimes called a "no contest clause". This is a paragraph in your will that says if a beneficiary contests the will to get a larger share, that beneficiary will forfeit his share and someone else will inherit it instead. Don't try to draft this kind of thing on your own because they are tricky and not always valid, but it's worth considering.

You can never guarantee in advance that someone won't contest your will. All you can do is make it as hard as possible for them to win, thereby discouraging them from attempting it.