March 21, 2019

Cutting kids out of your Will (Disinheriting)

DISINHERITING …

When parents draft Wills they occasionally decide that one or more of their children should receive less than their other children. In some cases parents decide to leave nothing to one or more of their children.

There are many reasons for treating children differently when it comes to their inheritance:

  • A child may be financially secure and not require any inheritance;
  • A child may have received loans or gifts while their parents were alive;
  • One child may have been particularly attentive to the parents, particularly as they grew older;
  • One child may have annoyed their parents one way or another.

Whatever the reason for treating children differently in a Will, it should be done carefully to minimize the risk of the Will being successfully challenged. The following steps may reduce the risk of a Will challenge, although nothing can guarantee that a challenge will not occur:

  • Make sure your Will is prepared and signed. Although you do not need a lawyer to prepare your Will, it may not be a bad idea if you are not going to benefit all of your children equally;
  • Tell your lawyer the reason for the children being treated differently and request they make notes of the reasons. Your lawyer may suggest that you prepare a note in your own handwriting explaining the reasons;
  • Consider including a provision in your Will explaining the differential treatment.

If a Will is challenged, the Court Rules determine what evidence is admissible. Notes made by you or your lawyer may or may not be admissible. A challenged Will is always admissible, of course. The risk with including an explanation in your Will is that it may cause upset and spark a Will challenge where one might not have otherwise occurred.

Some other considerations for helping to reduce the risk of a Will being challenged are:

  • Have a family meeting where you explain to all of your children what you are doing and why. Such a meeting may make it difficult for the disinherited child to suggest that someone forced you to cut them out of your Will or that you did not know what you were doing;
  • If you or your lawyer are concerned that a family member may later question your mental capacity to make a Will, consider arranging to see your doctor the same day you sign the Will and obtain a letter from the doctor to confirm your mental capacity.

Unless your children are financially dependant on you, you may not have a legal obligation to leave them anything. It does not mean your children will be happy if you leave them nothing. When drafting a Will that excludes one or more of your children or treats any of your children differently from the others, you should assume there will be a challenge to the Will and proceed very cautiously.

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