Disinheriting a child is possible in most U.S. jurisdictions. Can you disinherit a child in your will? Yes. All a person has to do is to make a duly executed will without mentioning the child.
A person does not have to mention a child in their will. Failure to mention a child in a will is not grounds for setting aside a will.
A child has no automatic share when they are disinherited.
When disinheriting a child, it’s good to keep in mind that the child has the right to attempt a will contest. Therefore, everything has to be documented to the best extent possible. It makes sense for the attorney drafting that will to spend much more time documenting the will as the attorney will possibly need, so that he will have documents to fall back on when he needs to testify about the will to the court and in depositions. It makes sense for the attorney to meet with the person making the will in person and multiple times and document all of the meetings and the state of mind of the person making the will. It would make sense for the attorney to have as little contact as possible with people who are not making the will, such as the people who the person making the will is favoring instead of the child. The attorney will also have to develop defensive strategies, such as deciding whether or not to record the will execution on video.
A child who is attempting a will contest would have to prove at least one of the following will contest grounds:
- lack of mental capacity
- undue influence
- the will was not made correctly
The favored strategy for will contests when contesting disinheriting a child is to allege a combination of undue influence and lack of mental capacity.
To prove undue influence, the disinherited child would have to show to the court that a trusted person took advantage of the testator and manipulated him into making the will.
While undue influence most often is not the subject of direct proof, it may be proved by circumstantial evidence. It can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his relationship with the child, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person.
To show mental incapacity, the disinherited child would need to prove that the testator did not understand one or more of the following:
- what they own
- who their relatives and friends are
- what is in their will.
When disinheriting a child, it is recommended to not do the will yourself but to hire an estate attorney. It’s important for many reasons. First, a will drafted by an estate attorney is automatically considered to be made correctly with all of the elements of due will execution being satisfied. Second, an attorney will make sure that the will is made correctly. Third, the attorney will serve as the most important witness to the fact that the testator was there, made the will and had the required capacity. Experienced estate attorneys are given great weight in determining whether a testator has a capacity to make a will that disinherits a child.
It is sad to see the relationship between the parent and child in such a state that disinheriting a child is an issue. It is, however, a legal right of a parent to do so in most of the U.S. A will disinheriting a child will stand unless successfully contested in court.
Albert Goodwin is an estate lawyer in New York. If you are dealing with an issue of disinheriting a child, you can call 212-233-1233 or 718-509-9774.