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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.

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