For testators who have been actively involved in the dynamics of their own family for decades, disinheritance might be an easy decision. For estate planners, however, disinheritance is a difficult issue to deal with that must be addressed adequately or can leave an estate plan open to challenge after the testator's death.
Disinheritance is a profound element of an estate plan. It can be triggered by a single, specific event, or result from the lifelong flaws of a relationship. For example, a parent may decide to remove one child as a residuary beneficiary under his or her will because of a heated dispute and subsequent estrangement.
From an estate planner's perspective, it is important to do everything possible to document the reasons behind the disinheritance. If there is a specific event resulting in a disinheritance, it should be identified. Further, the drafting solicitor should obtain the testator's explanation for why the disinheritance was not featured in an earlier version of the estate plan.
Disinheritance can be direct or indirect, and will be present, in one form or another, in every element of every estate plan. The exclusion of one individual from an estate plan and the inclusion instead of another can represent disinheritance. Where the individual being disinherited is a dependent or one member of a group, this poses a red flag and a good opportunity for the disinherited person to challenge the estate plan. However, especially where this is not the case, the disinheritance will not always have an objectionable consequence or legal remedy.
When acting as a drafting solicitor, it is important to educate clients about the impact of a will. Often, a will is thought of as merely the document that gives away one's property at death. A will, however, represents the last words of a person. The will is the lasting record of a person's intention to favour certain individuals over others, and can be of great significance from an emotional point of view. Whether it is intentional or not, the disinheritance of a child is akin to saying that this child is loved less than the others, who remain as beneficiaries pursuant to the will.
If a will is carefully drafted around a disinheritance, it may be less susceptible to challenge by the disinherited person. Forfeiture clauses may be included to effectively disinherit a person who commences unsuccessful litigation with respect to the estate, but this may be of limited practicality when no benefit has been provided to the applicant under the will to begin with.
There are many ways by which a will can be challenged or "ignored" in favour of an individual who has been disinherited from a legal standpoint, and clients who intend to disinherit an existing or expected beneficiary should be reminded of this fact. The financial impact of a will challenge on an estate can be extreme. No matter how great the size of an estate, if it becomes subject to litigation, that size will be significantly reduced. Contrary to popular belief that the provisions in a will are set in stone, wills can be, and frequently are, challenged.
When a will is being challenged, evidence provided by doctors, relating to the mental capacity of the deceased at the time that a will was executed, and the notes of drafting solicitors are often key evidence. Lawyers should ensure that they take detailed notes when consulted to assist with estate planning.
Some lawyers may choose to audio-record conversations during which the client is explaining why an individual is being disinherited, in this high-risk situation. It may be effective in preventing litigation for a child to hear what their parent had said and may serve as effective evidence before a court, with the availability of the testator's explanation for disinheritance in the actual words of the testator. However, there may be some difficulty in managing such evidence.
The nature of the questions asked to a client greatly influence the answers provided. If the estate planner uses leading questions, the audio evidence could have the opposite effect of portraying the lawyer as having guided the process to obtain the answers that were produced. The questions asked of a client might be relevant, but sometimes too much information with respect to the interview process will not be helpful.
There is no foolproof way to disinherit beneficiaries. Where a testator chooses to disinherit his or her survivors, a consequence will ordinarily follow. Sometimes a disinheritance, even if reflecting the testator's true preferences, may not be worth the associated emotional and financial impacts.
Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.