As sometimes happens the person wanting a will (the testator) has decided that they will leave their children different amounts, or nothing, for many different reasons.
Sometimes they have loaned money to a child on a promise of payment which was never kept. Sometimes the child is a spendthrift or has substance abuse issues. Possibly the child has been estranged for many years. Undoubtedly there are many other reasons.
Where the testator wishes to leave the child nothing I suggest that the reasons for doing so be written signed, witnessed, and dated by the testator or that the reasons be referred to in the will. This is to substantiate the reasons why the beneficiary received no benefit. This is not going to prevent the “disappointed beneficiary” from contesting the will and the court but it will at least explain your reasons for this inheriting someone.
If however the testator simply wishes to leave one child less than another a court case may be avoided when the disappointed beneficiary receives some portion of the estate in return for not going to court. This amount needs to be sufficient enough that the beneficiary does not want to risk losing this reduced share of the estate.
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CONSIDER Notifying anyone whom you believe should be told about your estate planning decisions. This is whether or not you included a non-contestation clause in your will. One of the reasons for doing so is to try to prevent a court case after your death. For instance, if you intentionally omitted one of your children as a beneficiary or reduced their share in your estate it is possible they would contest your will. By notifying them now, while you are alive, you have a better chance of preserving your estate and avoiding litigation.
I am setting out below a typical “non-contestation” clause for consideration.
If any person who may be entitled to any benefit under this my Will shall institute or cause to be commenced any litigation in connection with any of the provisions of this my Will, in which the validity of this my Will or any codicil thereto is unsuccessfully sought to be impeached, other than for any necessary judicial interpretation thereof or for the direction of the Court in the course of administration all benefits to which such person would have been entitled shall thereupon cease and be revoked. The said benefits so revoked shall fall into and form part of the Residue of my estate to be distributed as directed in this my Will without regard to any bequest made to that person as if they had predeceased me without heirs. It is not my intention to deny any beneficiary with a bona fide belief in the justness of their cause access to the courts but to ensure that if they are unsuccessful they shall forfeit any benefit under my estate. In this way, I hope to minimize the potential for unwarranted litigation by any disappointed beneficiary.
