Q. Regretfully, our son has been a ne’er-do-well for some time. He has been only sporadically employed and would likely squander any inheritance on drugs. My wife and I are thinking of taking him out of our will and leaving everything to our other two children. Any thoughts about how we should go about doing this?
A. I am sure that this decision must hurt both of you deeply. However, since you asked: Yes, I do have some advice which I call the “Do’s and Don’ts” when disinheriting a child:
1) Do Consider a “Skip Bequest” to His Children: If your son has children, you might leave his share directly to his own children, perhaps in a trust or guardianship arrangement managed by one of your other children. That might be more palatable to both you and your wife, and might very well discourage a will contest by him.
2) Do Consider an Incentive Trust: You might leave your son’s share to an Incentive Trust. This is a trust designed to encourage behavioral changes as a condition to receiving trust benefits. For example, if your goal is to encourage him to be drug-free, you might specify that he must test free of drugs for a period of 24 months before he receives any benefit from the trust. You could also require that he maintain steady employment and provide proof of same to the trustee.
3) Do Document Your Decision: If you feel there is any possibility that your son might challenge your will on the ground that you lacked capacity, take steps now to help your other children defend against a challenge later. You might suggest to your attorney that, at the time of signing your will, he or she record an audio or videotape interview with you and your wife, wherein you discuss your reasons for disinheriting your son. Additionally, it might be wise to secure from each of your physicians a letter affirming your capacity to make estate planning decisions.
4) Don’t Overlook Naming Him In Your Will or Trust. If you stay with your decision to disinherit your son, it might be tempting to not even identify him in your estate plan. That would be a mistake. Were you to omit his name entirely, the law would presume that you just had a memory lapse, and a judge would likely insert him back into your will to take his proportionate share as a pretermitted heir. To protect against this, you should specifically identify him in your plan documents, and only then recite that he is left nothing.
5) Don’t Rely Exclusively on the “No Contest Clause”: While designed to discourage will contests, the common No Contest Clause (“NCC”) often included in wills, standing alone, would likely not work. The NCC merely says that anyone who unsuccessfully challenges a will receives nothing. It is designed to discourage a beneficiary from trying to get a larger share of one’s estate. However, in your case, you propose to leave nothing to your son at the outset. Thus, he would have nothing to lose — and potentially a lot to gain — by challenging your will. For this reason, it would be better to leave him something, say, just enough to discourage a will contest. He would then have something at risk, and the NCC would have a greater chance of achieving its purpose.