When Your Children Write Your Will

Wills are very important documents. So important, in fact, that I think everyone who owns property should have a Will.

For those of you who might not know what the primary purpose of a Will is, a Will directs how your property passes after your death. “I give my estate to my spouse,” or “to my children, equally,” or some such language.

On occasion, a client asks a lawyer to draft a Will through which he or she disinherits a child. Perhaps the child is estranged from the parent. Perhaps the parent thinks that one child has enough money and that another child would benefit more by receiving the entire estate.

To me, the reason a client might want to disinherit a child isn’t very important. I’m a firm believer that a person should dispose of their assets in any manner that pleases them. It’s their money, so how they want their property to pass after their death is what’s important, not what other people think. Under New Jersey law, the only person you can’t disinherit is your spouse.

If a parent wants to disinherit a child, I think it’s wise that the client identify the child in the Will and state the reason why the parent is disinheriting the child. In this way, it is clear that the parent knew he had a child and there is a specific and coherent reason why the parent disinherited the child.

Disinheriting a child – or anyone else who might feel that they are entitled to a portion of your estate – tends to cause bad feelings, and when people are hurt, they often file a lawsuit. When someone files a suit challenging a Will, there is said to be a “Will contest,” and one of the primary grounds of attack in Will contests is “lack of testamentary capacity.”

To sign a Will, a person must have testamentary mental capacity. In short, testamentary mental capacity involves knowing who your relatives are, knowing the assets that make up your estate, and being able to formulate a plan for the disposal of your assets after your death. If you can do that, you have “testamentary capacity,” so your Will cannot be set aside for lack of testamentary capacity. When a client identifies the child that he is disinheriting and states a reason as to why he is disinheriting his child, he has provided some evidence as to his testamentary capacity and is helping to prevent a Will contest.

With all that being said, even a perfectly thought-out plan can go astray. Few people are aware of a New Jersey statute that allows the beneficiaries of an estate to change the terms of a Will. For example, assume that a decedent had four children but chose to disinherit a son because the decedent did not have a good relationship with the son. Instead of leaving one-fourth of his estate to each of his four children, the decedent left a third of his estate to three of his children and left nothing to the estranged son. The other three children could decide to change the terms of the Will and divide the estate into fourths, re-inheriting the disinherited son.

Or what if the father wanted to leave one child’s inheritance in trust, as opposed to leaving the child an outright bequest. For example, assume that one son has a drinking problem, so the father left that son’s inheritance in trust, with a daughter as the trustee. If the son with the drinking problem and the daughter who is the trustee agree to forego the trust and allow the son to have his inheritance free of trust, there will be no trust.

While it is very important to have a Will, a Will is no guarantee that your intentions will be carried out. The law allows the beneficiaries of an estate to change the terms of your Will. Though I am not a proponent of living trusts and firmly believe they are oversold, the New Jersey statute that allows your beneficiaries to re-write your Will may, in certain circumstances, be a good reason to use a living trust instead of a Will to pass your estate.