When most people hear that someone has been "disinherited," they usually think of someone who has been written out of someone else's will. While this certainly is the classic definition of disinheritance, it is not the only way that a person can be excluded from an estate.
Through their actions, beneficiaries can be excluded from a person's estate regardless of whether the testator actually went through the steps to write them out of their will. These exclusions are done for public policy reasons, and operate exclusive of the testator's will. The most well-known example of disinheritance for public policy reasons is murder. If you murder a person who had previously left a testamentary devise to you in their will you are precluded from inheriting under their will.
Because it is extremely difficult to predict instances of bad behaviour that will result in disinheritance, this episode of Hull & Hull TV focuses on the classic instance of disinheritance -- being written out of a will. This is the most common way disinheritance leads to will challenges and other forms of estate litigation.
Due to the enormous amount of wealth that is being and will be inherited by baby boomers and their children, instances of disinheritance will inevitably be on the rise. Denying a loved one wealth that they have come to expect to inherit is a sensitive issue that can often bring about disputes. However, a comprehensive estate plan and effective communication between family members prior to death can serve to avoid the stressful and expensive process that is estate litigation.
Estate planning is a subject that individuals and families often avoid. Despite the emotions associated with death, it is an unfortunate inevitability and planning for what happens to an estate afterwards allows loved ones to grieve and deal with the logistical issues associated with death while not having to worry about potential disputes.
The first step to staving off estate litigation is to move past the initial inclination to avoid communication. Sit down with your family to talk about the issues and clearly convey what you want, so as not to leave those left behind guessing at your testamentary intentions.
We often tell our clients that this family meeting is most effectively conducted in a "business" type of environment, as opposed to a family one. This allows for emotions to be set aside and serious communication to take place. The head of the family should broach the subject and clearly convey what he or she wants done and why they want to do it. If this communication is done effectively, a will challenge becomes much less likely.
This conversation will initially be uncomfortable. It is important to quickly move past the early feelings of discomfort and deal with the issues prior to death, so loved ones aren't left with messy disputes afterwards. Estate planning is an intensely personal, albeit necessary, subject to tackle. It is crucial to be transparent in these conversations with your family as secrets often lead to fights.
If you decide to disinherit someone from your estate, the best course of action is to communicate this decision and the reasons for it to that person. While this will undoubtedly be an uncomfortable conversation, it can go a long way to circumvent potential litigation after death.
*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.