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Tuesday, July 20, 2010

Can I leave my child out of my Will?


When planning their Wills, parents usually put quite a bit of thought into what they want to leave to their children. Occasionally a parent doesn't want to leave anything to a particular child. There are plenty of good reasons for this. It could be because the parent and child are estranged. It could be because the parent gave the child quite a bit of financial help while the parent was alive. It could be because the parent really wants to leave it to someone else (either a person or a charity). Perhaps the parents have left an insurance policy or other property directly to that child.

Whether or not a parent would be successful in leaving a child out of the Will depends in large part on whether the child is either a minor, or an adult child who can't earn a living because of a handicap. Children who fall into those two categories are considered to be financial dependants of the parent and can't be left out of the Will without a significant risk that the Will would be contested.

Because adult children who are not handicapped do not have an automatic right to contest the parent's Will to get a larger share, the parent does not legally have to leave the child anything. This is an area where real life isn't as simple as the legal rules. A parent who leaves a child out of a Will is going against the expectations of the child and likely of everyone else. A child who is left out of the Will generally feels punished and wonders what he or she did to upset Mom or Dad.

Plenty of people think it's the law that they must leave their estates to their children and that they must treat all children equally in their Wills, but it isn't. It is, however, a strong cultural tradition that children inherit from parents, so if the parent plans to do something else with the estate, he or she is working against a very strong tradition and an even stronger expectation.

Whenever a client of mine wants to do something in a Will which may not seem logical or obvious to other people, I include a clause that briefly explains the person's reasons for taking this route. For example, if a parent were to leave a child out of the Will, the Will would contain a sentence or two giving the facts that the parent won't be around to give in person. It could say that the parties are estranged, or that the child has already been supported by joint property given to him or her. The purpose of including a clause like this is to make it clear to anyone reading the Will that the testator had put thought into the decision, knew that he or she had a child who expected to inherit, and that he or she made a different choice anyway.

Sometimes Wills are attacked on the basis that the testator (in this case the parent) didn't "know what he or she was doing". Having a rational explanation included goes a long way towards refuting that kind of claim.

If you are thinking of leaving one or more of your children out of your Will, please talk to an estate-planning lawyer about this. If you want to do this because of an ongoing problem between you and your child, also talk to the lawyer about how you will be able to protect yourself financially if you should lose mental capacity.

4 comments:

  1. My will is drafted, but now both adult children have estranged themselves from me, their mother. Is it possible to draft a codicil to adjust who inherits to my grandchildren? A young man I know and trust has agreed to be Executor of my will, power of attorney and living will. My son indicated he does not want next of kin status, so, since he no longer wants an association with me, am I able to adjust as well by codicil? I plan on a structure stipulating that if the will is contested that the person contesting can only be awarded the sum of $5.00

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    Replies
    1. Hi Lena,
      A codicil is an amendment to an existing will that confirms the will but makes only a small change. If you're changing the executor, changing the beneficiaries, and adding extra clauses, that is not a small change. You need a whole new will.

      I think you'll find that not many lawyers do codicils anymore since they were designed to prevent having to create a whole new document by hand or by typewriter. Since they're all done on computers now, codicils are quickly disappearing.

      As for the changes you want to make, yes, you are entitled to make them.

      I am somewhat concerned about your comment that there is a young man you know and trust who will act on your behalf. If this is someone you've known for years, such as a nephew or a professional such as a lawyer or accountant, that would probably be ok. However, call me cynical if you will, but my warning bells ring when unrelated young persons volunteer to do all that work for no return. Could you consider using a trust company? I don't know your financial situation so I don't know whether that's feasible, but I just don't want to see anyone take advantage of you.

      Lynne

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  2. Good evening Lynne!
    My oldest child and I have been estranged for the last 2 decades (his choice) and his father and I want to leave him out of our will completely, but, leaving only a few of my favourite pieces of jewellery to his children. Can we do as you suggest and include a comment in our will(s) stating that due to the estrangement that was of his making, that we are choosing NOT to include him in our will(s), but wish for our grandchildren to each have a piece of jewellry each that have come down 4 generations in both of our families?
    I am okay with our decision, but, do NOT wish for our other son to be harrassed by his older brother in regards to this...

    ReplyDelete
    Replies
    1. Certainly you can. Having a few words in there to explain your decision will give your executor son the back-up he needs if he is questioned.

      Lynne

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