Disinheriting

October 15, 2013. The following are two examples, and real ones, of attempts to disinherit heirs that have always amused me:

(1) “Before anything else is done, fifty cents be paid to my son-in-law to buy for himself a good stout rope with which to hang himself, and thus rid mankind of one of the most infamous scoundrels that ever roamed this broad land or dwelt outside of a penitentiary.”

(2) “Unto my two daughters, Frances Marie and Denise Victoria, by reasons of their unfilial attitude toward a doting father, I leave the sum of $1.00 each and a father’s curse. May their lives be fraught with misery, unhappiness, and poignant sorrow. May their deaths be soon and of a lingering malignant and torturous nature. May their souls suffer the torments of the condemned for eternity.”

I pulled this from a Dukeminier Will and Trusts textbook I had lying around, but I think it serves its purpose. It fairly presents that there may be some skill, if not an art, in properly excluding a descendent or potential heir from one’s will or trust. And never is the process as amusing for those involved. And, not to mention, it can be dangerous to the drafting attorney.

The first crossroad reached is whether to make mention of a disinherited descendant or to avoid referencing them altogether. The safe and, I believe, uncontested answer would be, yes, include some mention of them. Of all the questions the estate planning process can raise long after the documents have been made, one we can at least avoid is an assertion that the potential heir was overlooked.

The heart of the issue, then, is how much does one say? Generally, less is better. Acknowledge those that would normally inherit, but say little else. An overly detailed exclusion is an open door to argue testamentary capacity, undue influence, or perhaps, though extreme, fraud.

Another mistake is to offer some nominal gift in the will, say a dollar or ten. The idea being that this somehow shores up the disinheritance, or cures some of the above raised issues. This is a poor decision, and a misinterpretation of English common law. The negative ramifications of this are practical and immediate. The disinherited can demand information and accountings without having to file a lawsuit. Being a beneficiary of the process, they are also now in a position to create unique costs, delays, and inefficiencies for the administrator, representative, or trustee. And it would be ill-advised to underestimate a person’s determination to create hurdles where they believe they are the recipient of a gift in spite.

The unfortunate truth is that there is no certain way to avoid an heir apparent when planning for an estate, and excluding an individual will often result in a will contest. In the end, it may be of worth considering the testator communicating with the disinherited individual and explaining their reasons. This may help soothe genuine feelings of hurt and exclusion. On the other hand, perhaps a modest gift in the will can serve as a preventative function. Lastly, if the testator does not want the individual to take under the will or trust, making a transfer outside of the will or trust, such as payable on death accounts or another gift, might be practical. To learn more about Goosmann Law's estate planning practice, email info@goosmannlaw.com or call 712.226.4000.