Law News and Tips

But Jason Got His

Fred Vilbig - Monday, March 14, 2016

Mom and dad had been married for many years. They have three children whom they love very much. The oldest, John, is married with the family. John and his wife don’t have much, but they’ve been making it. They’ve never asked for anything from mom and dad and have always been ready to help.

Their second child is Susan. Susan also is married with four children. Her husband has a good job and has been able to provide for the family, so Susan was a stay-at-home mom and raised the children, bringing them by for their grandma and grandpa to spend time with. Great joy for mom and dad.

Their youngest son was Jason. Jason has had a tough life. His career never took off. His ex-wife got everything in the divorce. Mom and dad have financially bailed Jason out fairly often. They have spent a lot of money on Jason, and he was finally getting to a more stable point in his life.

When mom and dad came to see me, they were sort of conflicted. They equally loved all of their kids, but it seemed to them (to different degrees) that Jason already had received his inheritance. Dad felt stronger about that than mom. And there was some resentment of Jason by John and Susan. When mom and dad did the math, they actually discovered that they had already given Jason much more than John and Susan would receive on their deaths.

In the end, mom and dad decided that Jason had already received his inheritance. They decided to leave their estate only to John and Susan. Mom was torn about this because she knew Jason would feel cheated, but she hoped that over time, he would understand. Still, it was a very difficult decision.

The law allows people to do basically whatever they want with their property on their deaths. They can disinherit any one or more or even all of their children.

However, where a child is disinherited, you need to be careful. If you don’t even mention them in your will or trust, the validity of the will or trust comes into question. A person must be competent, and one requirement for competency is that the person must know the “natural objects of their beneficence.” Good phrase, huh? Learned it in law school. It means a person must know the people who would ordinarily receive that person’s inheritance. If you don’t mention all of your children, then that raises a question of competency.

But even if you mention them, that may not be the end of things. After the death of mom and dad, Jason may feel that John and Susan made mom and dad write him out of the will. Since he has nothing to lose, he could bring a will contest or trust contest based on undue influence. There are plenty of attorneys who could take that case, for one reason or another.

Under these circumstances, I recommended that mom and dad leave Jason something. It had to be an amount or percentage that Jason could not ignore. And the will or trust would include what is called an “in terrorem” clause. That clause says that if you sue, you lose everything. So be afraid; be very afraid.

Families are complicated, and estate planning is too. Equal is not always fair, but a lot of times children don’t want to be fair. Plan carefully.

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