Intentionally Omitting Children From Your Will

If a client chooses not to leave his estate equally to his heirs, or even to disinherit one or more of the children from any distribution of estate assets, the client’s estate attorney can take steps now to minimize the risk of a future challenge to the will. Such challenges usually involve claims that the testator lacked testamentary capacity to make the will, see N.J.S.A. 3B:3-1, or that the will was the product of undue influence.

“Undue influence” is defined as “’mental, moral or physical’ exertion which has destroyed the ‘free agency of a testator’ by preventing the testator ‘from following the dictates of his own mind and will and accepting instead the domination and influence of another.’” Haynes v. First National Sate Bank of New Jersey, 87 N.J. 163 (1981).

If a will benefits a person who stood in a “confidential relationship” with the testator, and there are additional “suspicious” circumstances, the law presumes that undue influence was present, unless the person defending the will proves otherwise.

Examples of a “confidential relationship” include when the testator lives with and depends upon one of his children for his daily needs. “Suspicious circumstances” may be only “slight,” and could include, for example, a drastic change in the testator’s estate plan; or utilizing a drafting attorney who also has an attorney-client relationship with the beneficiary.

Notably, the same factors that may lead a client to favor one child in an estate plan (for example, the fact that the client might live with that child and depend on him for daily needs) may also be used to support a claim of undue influence.

In order to protect a client’s will from future challenge, it is vital that the estate attorney meet privately with the client, outside the presence of any third party, even if the client tells the attorney that he wants the third party present. Likewise, those persons who have an interest in the client’s estate plan should never attend the signing or be used as a witness to the will. In taking these steps, the estate attorney can assure him/herself that the client has testamentary capacity and is not being unduly influenced, while also establishing a record to support the validity of the will in the event of a later challenge.

Several other devices may be used to further protect a client’s will from subsequent attack based upon the omission of a child, including a letter to the client (or a letter drafted by the client) memorializing the basis for his estate plan decisions; the use of a will execution checklist, to document issues addressed at the signing; and a letter from the client’s physician attesting to his mental capacity.