Question: If I affirmatively disinherit a child in my estate planning documents, can my child contest it?
Answer: Anyone can file an action to contest a Will. Of course, this doesn’t mean that they will prevail. If an action is filed, though there are many reasons a child might contest a Will, the child will generally have to prove one of two things:
- Prove that the testator lacked capacity to make a Will; and/or
- Prove that the testator was under some sort of undue influence when they made and signed the Will.
If you think a child will claim you lacked capacity to sign your estate planning documents, you should consider having your physician provide you with a letter that you are capable of understanding your financial affairs. You can also have the signing of your estate planning documents videotaped to show that you indeed do understand the nature of your actions.
Another defense against a claim of incapacity is to specifically state in the Will the reason for the disinheritance (child received other assets, the child was estranged, or other personal reasons).
You can also have your attorney put a certain clause in the Will that says that if the Will is ever challenged, the individual gets nothing or a limited amount. This particular clause is called an ‘In Terrorem’ or ‘no contest’ clause. However, in some states, such as Maryland, these clauses are not necessarily going to be enforced, particularly if the beneficiary has some probable cause for bringing an action.
As always, if you have any questions or would like to learn more, please contact Steve Shane at email@example.com or .
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Steve Shane provides strategic counseling to clients in need of estate administration, charitable giving and business continuity planning while minimizing estate, gift, and generation-skipping transfer tax exposure. He offers legal guidance to clients on asset protection and the proper disposition of assets in accordance with the client’s objectives, while employing tax planning techniques such as the use of irrevocable trusts, life insurance planning, lifetime gifts and charitable trust. He is also experienced with drafting documents for business planning, the incorporation and application for exemption for Private Foundations and the administration of decedents’ estates.
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