October 29, 2012
Authored by: Luke Lantta
Hell hath no fury like a disinherited child. Or, if not fury, then at least an appetite for litigation.
Many estate planners recommend against total disinheritance and instead couple a token distribution with an in terrorem clause. That way the disinherited child stands to lose something if he or she pursues estate litigation. Of course, that doesn’t always work. Especially if the risk is greatly outweighed by the potential reward – say giving up a sure $5,000 for a possible $1 million.
So, what else can a testator do to ensure that his or her intent to disinherit is upheld if there is litigation?
In In the Matter of the Probate of the Alleged Will of Joan Pennella, a recent case out of New Jersey, we see the value placed by a court on the testator’s own explanation of why she disinherited two of her children.
Joan Pennella essentially disinherited two of her children, Sam and Carol. Those two children filed a claim alleging that Joan lacked testamentary capacity and that their brother, Carl, exercised undue influence over Joan.
The appellate court upheld the trial court’s finding that Joan had the requisite capacity to make a will and that there was no undue influence exercised over Joan. In reaching their decisions, the appellate and trial courts put emphasis on a handwritten letter from Joan explaining why she was largely disinheriting Sam and Carol.
If a child gets disinherited, judges and juries are going to want to know why. While plenty of witnesses can talk about why, the strongest explanation why comes from the testator him or herself. So, if a testator is set on disinheriting a child, it might be a good idea to have them put in their own words why they’re doing it.