Legally everyone is entitled to leave their estate to anyone they want. This means that they can exclude (or “omit”) anyone they want from receiving any distributions under a Will or a Trust. Often there is already an expectation that such individuals will feel wronged and will contest the will or trust. How to prepare for such contest ahead of time?
First – the provisions in the Will or Trust pertaining to omitted individuals should be very clear and should provide some reasonable explanation for the act of omitting these individuals. For example, sometimes heirs are named as Beneficiaries under a large life insurance policy, and are “taken care of” in this fashion, instead of via a Will/Trust. If this is the case, the Will/Trust should make a mention of this to clarify the intent of the Testator (Will-maker) / Settlor (Trust-maker), and explain the underlying intent to omit such individuals. Any time the Will/Trust contains ambiguous provisions that can lend to multiple interpretation, litigation is no doubt going to arise to have a court confirm the true intent of the Testator/Settlor. Being very clear about the intent to deliberately omit someone from distribution is the first step towards preventing such litigant from contesting these wishes, and imposing high litigation costs on the Trust/Estate.
Sometimes, even the most clearly worded Wills/Trusts are contested on the grounds of lack of capacity of the Testator/Settlor. The omitted individual would question whether the Testator/Settlor was fully aware of the consequences of his/her actions, and due to advanced age did not have full testamentary capacity to appreciate the provisions of the documents, and as a result - inadvertently exclude people who were (allegedly) near and dear to him/her. To document the clear testamentary capacity of the Testator/Trust-maker, he or she would be wise to meet with a geriatric physician and obtain a Physician's Letter confirming his or her ability to fully understand the consequences of his/her testamentary wishes. Such Letter of Capacity can be an invaluable tool in defending the true wishes as expressed in a Will/Trust when such wishes are contested by the omitted party.
Another way to attack the validity of a Will or a Trust is to claim that the omission was a product of undue influence, and that, but for such undue influence, the omitted party would have never been taken out as a Will/Trust beneficiary. A way to counteract such argument is to have a second meeting with an attorney – different from the attorney who prepared the Will/Trust. During this “second opinion” meeting, the Will/Trust creator will have the Will/Trust reviewed and discussed with the second attorney, who in turn will confirm the Will/Trust creator's true intent in disinheriting (excluding) individuals from distribution. Once such intent is confirmed, the Attorney will issue a Certificate of Independent Review confirming that the Will/Trust-maker's intent is genuine, independent, unbiased, and not a product of undue influence or duress.
In addition, writing an authentic hand-written letter which outlines the personal reasons why someone is disinherited, is another tool which demonstrates one's true intent to exclude individuals from receiving assets under their Will or Trust.
Finally, creating a video recording of the Will/Trust-maker's personal address and reasoning behind excluding people as beneficiaries, is another way to authenticate such omissions.
Employing one or all of the above tools to document the true intent behind omitting individuals from distribution may come at an additional cost, but surely such cost is a drop in the bucket compared to the cost of litigating a Will or a Trust when an omitted individual feels wrongfully excluded. Such techniques are worth employing when preparing the family for litigation which is expected to erupt on someone's death, on account of omitting individuals from distribution under a Will or a Trust.
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