When planning your estate for inheritance, you may be considering leaving out a child with whom you haven't had a good relationship. The dynamics of family relationships can be complex, and it's not unusual for a parent to feel as if a particular child should not be entitled to their estate. You may also consider leaving out a child who you believe may squander your inheritance on alcohol and other irresponsible purchases.
When preparing your will, it's not as simple as just leaving out the child from your inheritance list. Any dependents you have (whether related by blood or not) can contest your will for their fair share of inheritance. So how can you prepare a will that successfully leaves out one of your children?
1. You should first understand testamentary freedom
In the past, estate owners had all the power to decide who could inherit their property. In fact, most wills were almost always followed to the letter (as long as they were prepared correctly and had reasonable provisions). This is what was referred to as testamentary freedom, the freedom to decide exactly who you would wish to inherit your estate.
However, new laws now impose limitations to this testamentary freedom. Under Family Provision Claims, any person who is directly related to (or dependent on) the estate owner can challenge a will if they were excluded. Therefore, you should carefully consider who your current dependents are and why you're considering leaving them out of the will.
2. Have clearly detailed reasons for leaving out the child
If you're planning on leaving out a child from your will, you should have adequate and compelling reasons why this is the case. Document these reasons in your will and have them viewed and approved by a wills and estates lawyer.
Some reasons (such as an irresponsible child who you feel may squander the estate, or a potentially dangerous child who has a criminal history) may hold up in your will. However, you often can't exclude a child who has mental or physical disabilities simply because they're disabled. Other unreasonable provisions are also likely to be challenged in court.
3. Consider the effect it will have on your spouse and other children
Remember that the child you choose to disinherit is still a part of the family. Your decision may be received differently by your spouse and other children. To avoid bitter disputes moving forward, you may consider giving a member of your family (such as your spouse) the discretion to re-inherit the child. You could do this through a trust, where you designate your spouse as the primary trustee. In this way, your spouse will be in a better position to make decisions regarding the disinherited child moving forward.