My Kids Would Never Do That!

“My kids would never do that.”  It’s a line I hear with some frequency, particularly when I discuss the possibility of a challenge to the client’s Will.

A last will and testament passes the property of a decedent to the beneficiaries she chooses.  Typically, the beneficiaries are family members, sometimes friends, and sometimes charities.

If a person dies without a Will, she is said to have died intestate.  When a person dies intestate, a law determines who receives their estate, the person’s heirs.  Heirs are the closest blood relatives of the decedent.  For instance, if Mrs. Smith dies with four children, her four children would each receive an equal share of her estate.  Mrs. Smith’s estate passing to her four children equally is said to be a natural disposition of Mrs. Smith’s estate.

If Mrs. Smith comes to me and wants to leave her estate to her children on an unequal basis—for instance, 50% to one child, 20% to another child, and 15% to the other two children—this is said to be an unnatural disposition of Mrs. Smith’s estate.  Now, Mrs. Smith is free to make an unnatural disposition of her estate; she may even have a very reasonable reason for disposing of her estate in this manner.

And Mrs. Smith’s children may all agree with her unnatural disposition.  Each of the four children may think, Mom can do what she wants with her property; I’m fine with her leaving my sister a larger portion of her estate.

Of course, the children may not feel this way, and the children’s opinion might change after Mrs. Smith dies for one reason or another.  I have had several family members who were involved in estate litigation say to me, “I can’t believe this is my family.”

To help clients preserve the integrity of their Wills after they die, I often ask family members who accompany the client to my office to leave the office while I speak with the client alone.  I want to hear my client tell me how she wants her Will drafted without anyone else putting words into the client’s mouth.

The most common scenario I experience is, Mrs. Smith’s child who is going to receive 50% of her estate is the child who accompanies Mrs. Smith to my office.  Mrs. Smith may be perfectly lucid and understand exactly what is being discussed.  Nevertheless, the child who accompanies Mrs. Smith, if left in the room, will be the person who answers my questions, not Mrs. Smith.  “Who would you like to appoint as executor?,” I’ll ask.  “Me,” the child will say.  Even when I say, “Please let your mom answer the questions,” the child will say, “Ok,” then the very next question I ask the child will answer or will whisper the answer to the client.

As I have mentioned in the past, if Mrs. Smith’s Will were ever challenged after her death—and I know that Mrs. Smith will tell me that “My kids would never do that”—I would have to testify as to what happened when Mrs. Smith came to me to have her Will drafted.  I would have to testify to the fact that the child sat in the room with mom, that the child provided answers to me, that the child often whispered into mom’s ear.

Since I would have to testify to those facts, do you think that Mrs. Smith’s Will would withstand a Will challenge?  Given those answers, if you were one of the children receiving a lesser percentage of Mrs. Smith’s estate—15% or 20%–do you think you would agree that Mrs. Smith’s Will reflects Mrs. Smith free will?  I can assure you, that you would not feel that way, and you would be correct in feeling that way.

Given that testimony, Mrs. Smith’s Will would be set aside.  Mrs. Smith would be deemed to have died intestate, without a Will, and her estate would pass to her four children equally.  So, ironically, the 50%-child who just wanted to help mom will end up ruining Mrs. Smith’s plan and will receive a much smaller share of Mrs. Smith’s estate.

So, what do I suggest:  Don’t come with mom to the lawyer’s office: Have mom make the appointment.  Have mom pay for the appointment.  If you do come, leave the lawyer’s office without fuss when the lawyer asks you to leave.  Or, do none of these things and accept the fact that mom’s Will may not be worth the paper on which it is written.

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