Intentions to disinherit in connection with the making of wills are not uncommon. Disinheritance circumstances give rise to acrimony and much litigation. In many cases, children and family members often find themselves dealing with these circumstances.
Clients planning their estates often are confounded with how to deal with a formed intention to cut someone out of sharing in the estate. Putting feelings and emotions aside, it is a matter of carrying out the decedent’s intentions, money and fairness.
Common Ineffective Solution Attempt
In estate cases in New York, many challenged estate plans contain an in terrorem clause with an additional provision stating that the particular person is cut out or left nothing. It is not uncommon for a will to make specific reference to the fact that the decedent specifically considered and deliberately intended to leave the person out of the plan. In some instances, no reasons are stated. In other cases, no mention of the person is made.
There are other cases where the will expressly states that the person cut out will not benefit from the will and advances the intended double whammy threat that if the person cut out challenges the will, that person is automatically cut out. The client drawing the will feels satisfied.
This is a failing strategy and plan. Coupling the in terrorem clause with a provision that the ditributee, problem person or child receives nothing sets up a guaranteed challenge to the will. The double whammy threat is empty, meaningless and ineffectual. In fact, in practice the attempted solution often invites litigation and has no estate litigation deterrent effect whatsoever.
Better Solution Attempt
Quite simply and more properly the in terrorem clause should actually be coupled with a sufficient and enticing incentive. Think of the cart driver dangling the carrot in front of the mule on the stick extended in front of the animal’s mouth. For illustration, include in the will an in terrorem clause with a specific bequest of say $20,000 for the problem person. The incentive of a specific bequest in the plan coupled with the potential for enforcement of the in terrorem clause creates significant risk of forfeiture of the bequeathed sum. The particular sum in each case must be thoughtfully determined, and often it is not or circumstances change.
This solution is entirely acceptable but in the context of litigation, can be a failure. The carrot and stick approach still subjects the plan to risk and chance – up in the air for future lawsuits. There is a better approach, which will be discussed in the next blog post.