by David A. (Andy) Hall
The decision to disinherit a child is generally not made lightly and neither should be the approach to planning. Careful consideration as to why a parent wishes to exclude a child from her estate planning is necessary prior to preparing the documents. There may be ways to arrive at alternative solutions that achieve many of the client’s goals without risk of litigation that disinheriting can bring (which I will cover in part 2 of disinheriting a child).
Some may want to disinherit because they want to create incentives for their children to develop a strong work ethic. This is the approach that Sting intends to take with his children. A number of celebrities, like Bill Gates and Warren Buffet, have similar ideas to Sting. Celebrities have also disinherited children for reasons that were (allegedly) known only to the children. Leona Helmsley famously left $12 million for the care of her dog Trouble while also disinheriting two of her grandchildren “for reasons which are known to them.”
Whatever the reason or reasons for choosing to disinherit, a diligent approach to the estate planning and the documentation of the estate planning is necessary. It is relatively easy to challenge a will. In Maryland, a Petition to Caveat a Will (a will contest) is a notice pleading. The Petition needs to contain “an allegation that the instrument challenged is not a valid will . . . and the grounds for challenging its validity.” In simpler terms, one challenging a will (the “Caveator”) needs to say that the will is not valid and offer a laundry of reasons that it may not be valid. The list of reasons does not need to be supported by facts. Many practitioners describe the grounds for challenging a will as including the “kitchen sink” because due to the six-month statute of limitations it is necessary to plead every single possible cause of action or it will be barred despite further evidence that may be generated.
“For reasons which are known to them” is a common refrain in estate plans that disinherit. This language, however, does no favors for litigation counsel who ultimately defend the will against a disgruntled heir. The disgruntled heir inevitably has nary a clue as to what the cryptic language is referring to; indeed, they will describe their relationship with the disinheriting parent in glowing terms.
Litigation counsel will then turn to the drafting attorney’s file and look for clues as to the testator/testatrix’s intent for disinheriting a child or grandchild. In a will contest, the drafting attorney’s file is no longer privileged upon the death of the testator. Experience has shown that drafting attorneys do not always have the best habits of taking notes when meeting with their estate planning clients. Even when they did take copious notes, the estate planning file has a tendency to winnow down through the years where the only remaining documents are usually only the final draft or executed version of a will. The attrition of an estate planning file can seem suspicious to an outsider, but it also makes sense from a logical perspective. Successful attorneys have thousands of clients that they represent over the course of a career, which generates reams of paper. As the files build up, a game of survivor begins to take place. Documents may be destroyed in accordance with a firm’s file retention policy or those documents may be returned to the client upon the conclusion of the representation or the drafting attorney’s retirement from practice. Absent explanation in the drafting attorney’s notes, litigation counsel is forced to rely on other contemporaneous documents and the testimony of those that knew the testator/testatrix – namely their children or grandchildren – those who stand to lose out on a portion of their inheritance.
The attorney representing the Caveator can attack the lack of evidence and cryptic words of the testator/testatrix in an attempt to extract a settlement from the estate. Many times a settlement will make sense because of the risk involved in litigating any case and also the attorney’s fees that will be expended by the estate in defending against the caveat. A little additional care by the planning attorney in maintaining their file or documenting the reasons for the caveat in the first place can go a long way in protecting the client’s ultimate wishes for the disposition of their assets.
We will discuss some other approaches to estate planning where the client wishes to disinherit a child in our next blog in this series. Should you wish to discuss your estate plan with an attorney who has not only drafted, but also litigated a will or trust, then do not hesitate to call.
David A. (Andy) Hall, Esq.
5300 Dorsey Hall Drive
Ellicott City, Maryland 21042
 See Md. Rule 6-431.
 See Benzinger v. Hemler, 134 Md. 581, 107 A. 355 (1919).