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Can You Exclude a Child from Your Will

a will

If you are a parent who is estranged from your children, you are probably wondering if you can exclude a child from your will. In New York, yes, you can exclude a child from your will and disinherit them.

If you need assistance in writing your will, you can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.

How do you exclude a child from receiving a portion of your estate

To ensure that your child will not receive any portion of your estate, you need to write a will. If you don’t write a will, your estate will be distributed intestate, and under New York intestate laws, your children will be entitled to inherit and will receive a portion of your estate. If you don’t want your children to receive anything, you have to write a will.

When writing a will, you need to make sure that it will withstand judicial scrutiny. Your excluded child might object to the will, so your will has to be written correctly and executed properly. To be written correctly, consult with an experienced estates lawyer who can make a will that can effectively exclude your child. To ensure that the will is executed properly, let an experienced estates lawyer supervise its execution.

The supervision of a lawyer in the execution of a will gives rise to a presumption that the will was properly executed. Your lawyer will also include a self-proving affidavit for your witnesses to sign so that the witnesses do not need to testify during probate.

How can you effectively exclude a child from your will

To exclude a child from your will, the best way is to expressly state in your will that you are leaving nothing for your child and state your reasons for disinheriting. An express statement will leave the court with no doubt that you plan to leave your excluded child with nothing.

After-born children also receive something because the law presumes that the omission from the will was accidental. It is recommended that you update your will when there is an after-born child who you want to exclude from receiving any portion of your estate.

An excluded child will likely try to contest your will

A child you exclude will most likely contest your will. Your excluded child will engage a lawyer to begin a pre-litigation probe of the circumstances surrounding the execution of the will. This process is authorized under Section 1404 of the Surrogate’s Court Procedure Act (SCPA §1404).

Under the said law, an excluded child who is looking to contest a will has the legal right to:

  • examine the witnesses to the will or the attorney who drafted it, in the form of depositions;
  • request for your parent’s financial or medical records as part of the discovery process for a period limited from 3 years prior to the execution of the will to 2 years after the execution of the will or until the death of your parent, whichever period is shorter.

Your estate will have to pay for the SCPA § 1404 examinations. To avoid giving your excluded child substantial basis to contest the will, it is recommended that your medical records be free from any evidence that you were taking any mind-altering pharmaceuticals or that you were suffering from an extreme mental illness, such as schizophrenia or dementia, anytime three years prior and two years after the execution of the will. Taking mind-altering pharmaceuticals or suffering from dementia or schizophrenia during this period could give doubt to your mental capacity at the time you executed the will and will strengthen your excluded child’s case in the will contest.

Grounds to contest the will

Your excluded child will look for reasons to contest your will. Examples of grounds that can be the basis for contesting the will are described below:

The will was not executed in accordance with New York laws

If the will was not executed under the supervision of an attorney, there is no presumption that the will was properly executed. Contesting the will may be easier. If the will is not accompanied with a self-proving affidavit executed by the witnesses, the witnesses still need to testify to prove the will. A lawyer can help you ensure that your will is executed in accordance with New York laws.

The decedent lacked testamentary capacity

Testamentary capacity requires that a person be of sound mind and at least 18 years of age. The lack of testamentary capacity is usually bolstered by medical records showing lack of mental capacity on the part of the testator. These medical records would show whether the testator was taking mind-altering pharmaceuticals or suffering from dementia, Alzheimer’s, schizophrenia, or other similar illnesses or disorders.

Review of medical records is limited to three years prior to the date of the will and two years thereafter, or from the date of decedent’s death, whichever is the shorter period. This 3/2 rule is found in Rule 207.27, Uniform Surrogate Court’s Rules.

The decedent was subjected to undue influence in the execution of the will

Undue influence happens when another person exerts improper influence upon your parent, amounting to moral coercion and convincing your parent to leave a substantial part of the estate to him. This is the often-used ground for contesting a will.

The will is a forgery

Forgery occurs when the signature in the will is not your parent’s signature. It can be proven by handwriting experts who can compare signatures and provide expert testimony.

The will was procured through fraud

The will is procured through fraud either by way of execution or by inducement. It is fraud by execution when a person asks you to sign a document, and you sign thinking the document was something other than your will. There is fraud by inducement when a false misrepresentation is made upon you, making you change the distribution of your estate because of this misrepresentation. For example, when someone tells you that your child has died and because of this statement, you did not leave anything for your child in the will, there is fraud by inducement.

Excluding a child from the will

If you would like to exclude your child from your will, you need to consult with an estates attorney who can help you in writing a will that effectively excludes your child and will withstand judicial scrutiny. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.