Since literally biblical times, the possibility that a parent would favor one child over the other has been a cause for resentment for the less loved children. Consider this passage from the Book of Genesis Chapter 37, verses 3 through 5:
“Now Israel loved Joseph more than any of his other sons, because he had been born to him in his old age; and he made an ornate robe for him. When his brothers saw that their father loved him more than nay of them, they hated him and could not speak a kind word to him. Joseph had a dream, and when he told it to his brothers, they hated him all the more. He said to them, ‘Listen to this dream I had: We were binding sheaves of grain out in the field when suddenly my sheaf rose and stood upright, while your sheaves gathered around mine and bowed down to it.”
It is of course legally permissible to provide for one child, or any one person, over that of another, subject only to some state law that grants minimum inheritance rights to a surviving spouse and minor children.
But when you elect not to provide for someone who might have an expectation of receiving otherwise, there are certain risk factors that might materialize and require analysis.
A. Don’t Inadvertently Give “Legal Standing” to an Omitted Beneficiary
In 17th century England and Ireland, there was a doctrine called “gavelkind” which required the wills of all men to provide equally for their sons. Later modifications to the law in the late 1800s permitted fathers to distribute their estates unevenly to their sons, but required them to give something to at least every son.
As a result, early 20th century practitioners began drafting standard estate forms that would give nominal, token inheritances of $1.00 to every child that was effectively disinherited, to avoid the possibility that the will would be struck down for not following the gavelkind laws.
This procedure was also followed for excluding other relatives who were not children or heirs at law. This can be a mistake, as there are only two classes of individuals that have legal standing to challenge a will’s disposition: (1) individuals named in the will, and (2) heirs at law.
The risk of giving $1.00 or something equally nominal to an heir at law such as a child carries minimal risk, as they would have standing to challenge the will’s validity just by virtue of being a child (i.e. heir at law). However, a greater risk arises when you attempt to exclude, say, a stepchild by giving them a nominal or taken bequest such as a dollar. In this instance, you have not only tapped into the part of human nature that triggers extreme resentment and a desire for vengeance by slighting them, but you have also given them legal standing to challenge other portions of the will (whereas if they were generally ignored they would not have standing since most states don’t regard stepchildren as heirs at law nor would they otherwise be mentioned so the Court wouldn’t consider their challenges to the wills because they would lack standing).
By following the old traditions when it is not applicable, you could inadvertently execute a document that provides easier access for the omitted beneficiary to legally challenge their omission.
B. The Favored Child or Beneficiary Should Not Assist in Creating the Will
Whenever a beneficiary receives more than a co-equal share than someone than someone on the same relationship plane (i.e. if there are children of the deceased one child receives half the proceeds rather than a third), the child that receives less may attempt to challenge the will on the grounds of undue influence.
Most states define undue influence to mean the terms of the disposition were executed in such a way that “the testator had lost the ability to exercise his own judgment and instead exercised the judgment of the influencer.” As such, it would be unwise for a testator that seeks to leave a greater inheritance to one beneficiary to receive any help or assistance from that beneficiary in preparing the will. If the testator can make the will on his own with the aid of an attorney and the favored beneficiary does not pay the attorney fees or show up at the consultation meeting, then there is a strong chance that an undue influence attack from the disfavored beneficiary will fail.
When you have an asset titled in your own name, you do not have to provide justification to anyone about how you choose to dispose of it. However, if you choose to make a disposition in a way that cuts against a traditional understanding of human nature, many states will impose heightened evidentiary requirements to prove that the disposition truly reflects your intent. The reason why articles that discuss disinheritance always end with “consult a attorney” is because each state has unique requirements for the action necessary to clearly and convincingly prove that the disinheritance is reflective of your intent.
Nota Bene: Although I am an attorney, I am not your attorney. Nothing in this article should be construed as legal, investment, or tax advice. This article should be read for entertainment rather than legal advice purposes. If you are engaging in asset planning, you should consult learned counsel rather than a blog.
Originally posted 2018-08-20 01:20:33.