Accounting for Law
Estates & Wills & Trusts

Avoid conflict over disinheritance by being upfront

The decision to disinherit a child may be reasonable depending on the circumstances, but it will likely lead to hurt relationships and confusion if an upfront conversation with family members doesn’t take place first, says Ottawa wills and estates lawyer Timothy N. Sullivan.

A recent Globe and Mail article says when it comes to disinheriting a child, there are no blanket rules that apply. Courts will consider the facts of a specific case before deciding whether to side with the child or the estate, says the report.

But in almost all cases, says the Globe, fighting to change a deceased person’s estate plan is complicated, expensive and stressful.

Sullivan, principal at SullivanLaw in Ottawa, says when a client comes to him to express a wish to disinherit an adult child, he immediately looks for signs of undue influence.

“I’m always concerned there may be some force at play that would point to undue influence,” he tells AdvocateDaily.com. “I have to be satisfied that the instructions I’m being given are voluntary.”

Undue influence, explains Sullivan, is the imposition of pressure on a testator from an individual who is going to somehow benefit from the consequences of the intended action.

“A child might press a parent to favour him or her, or exclude a sibling from the will,” he says.

“Not all influence is undue, but it’s necessary to be on alert and ask the right questions. It’s never done light-heartedly. When clients stick to an answer and give a rational reason for their decision then I’m satisfied that I can record in my notes that I was given proper instructions and they were given voluntarily.”

After all, says Sullivan, disinheriting a child isn’t always an attempt to hurt that child.

“One of the reasons a parent may disinherit a child is that he or she may have received quite a bit from the parents in life, so they feel they’re being properly treated — they’re just being treated earlier,” he says.

“It would be unfair to treat all children equally at the time of death if one received full tuition for years of schooling and the others didn’t, for example.”

Disinheriting doesn't always signal a relationship breakdown, says Sullivan.

“What you want to do is meet the testator’s intentions and there are always ways to do that,” he adds.

“My goal for clients is to avoid conflict after death by preparing the will in a way that is upfront and clear,” says Sullivan.

“If that means having conversations early on before death on expectations and what the plan is, then that’s what must happen. Even if the details are not fleshed out, it’s worth discussing the general plan so the intentions are understood.”

After death, the opportunity to ask questions is gone, which often leads to confusion and anger, says Sullivan.

“Conflict means litigation, litigation means expense, and expense eats into the estate and reduces what’s available to everybody,” he advises. “The only ones who benefit from conflict are the lawyers.”

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