Sometimes family and estate planning begins before the family is complete, particularly in an age where people (generally) are waiting until later to have children. In that case there could be grandchildren named in a will and others not, who are all in the same family. The reason may simply be that the children who were left out were not born when the will was made and it is too late to remake it. Fortunately, most states now have laws that are designed to remedy this situation.

Generally children are protected if they are left out, because they are considered to be overlooked as opposed to specifically disinherited. Some states protect spouses and grandchildren under the theory that they have been omitted rather than excluded. But, states have a couple different ways of handling omitted relatives. Many states assume that if the testator (the will maker) had a chance or had not forgotten to do so, that they would have included the omitted relative. This is important because the suggestion is that naming the individual would have been the testator’s intent had they recognized the omission. Other states make no mention of what the testator’s intentions would have been, because they want a testator who intends to disinherit someone to do it using positive language rather than just not mentioning that person. Both of these approaches can fly in the face of the facts regarding what the testator wanted or intended. But, one thing is clear, if you intend to leave someone out of your will who is a close relative you must do so expressly. That can be done by saying something like, “And, to my wife Sheila I leave nothing,” or “To my son Thomas, I leave the kick in the rear end I should have given him years ago.”

Such a scenario is a nightmare for your estate planner who knows that Shelia and Thomas will challenge your will because they have no reason not to. As was discussed in a previous article, it is better to leave a relative something that they are afraid to lose and use a no-contest clause in many instances. However, sometimes a client is clear in the desire not to leave a thing to one of his/her relatives. This is become increasingly difficult under state laws that protect omitted relatives and disfavor no-contest clauses. It is another case of laws that are designed to protect our interest also protecting us from being free. Why shouldn’t the testator be able to disinherit those they don’t like with ease? Why should the government decide who your assets will go to? Remember that most people die intestate so the state is used to making these decisions, but why should they be able to do so if you make a will? Perhaps it is another legal road paved with good intentions or perhaps it is another instance of big brother deciding for you.

This is another pitfall that your estate planner will be able to help you avoid. If you want to disinherit someone, then let your estate planner clearly know your intention. There is nothing wrong with that. Remember that, as an attorney, your estate planner’s job is not to judge your wishes, but to make them happen and guard you and your estate against what you don’t want. Your estate planner should not, and most likely will not, make you feel judged. They work for you and have taken an oath to faithfully serve your legal wishes to the extent that they have the legal power to refuse to break your confidence even after you pass away. Any estate planner who isn’t ready to fight tooth and nail to see your wishes met is not doing their job.

Just remember that if you intend to leave someone out of your will, you can do that. And conversely, your estate planner can help you provide for extra grandchildren that you may not have been lucky enough to meet, but that you still might help go to college.

Wills and trusts have an interesting history in a culture as heavily influenced by British common law as our own. The bequests of wills have been the pole star around which a great deal of mystery fiction has been written where furtive and anxious relatives wait around a long imposing table to hear what is to become of the family fortune and thus; what is to become of them. As usual, fiction and the media give one side of what something has been or is, while the other side of the tale exists behind the scenes or on an obscure back page of a newspaper.

What is not often shown about a will is that it is contested. Perhaps this is because the craving for legal courtroom drama is a relatively new phenomenon, and perhaps because the way the family members behave toward one another over large sums of money is too violent even for television. Wills are contested in long bitter rivalries that often leave no member of the family unscathed. Often there are two opposing camps and each relative must decide which “side” they are going to be on. It is refreshing when the sides earnestly agree that they each wish to bring about what they believe the deceased would have wanted, but it is more often the case in which that is merely the incantation recited to get what each opposing camp thinks is their due.

One means of opposing a will is to suggest that the person making the will was crazy when they made it. That is why even most lay people begin their will with the phrase, “I (so and so) being of sound mind and body….” This legal doctrine is not unique to wills, but affects the right to enter into contracts and agreements of all sorts. In the context of wills, this is called capacity.

Capacity can be broken down into two elements — first, the will maker must not be mentally deficient. For the most part this means that the will maker must understand what they own, who will get it and the basic arrangements used to get that person whatever it is they are to receive. These elements combine such that the will maker must understand how these elements relate. It seems that video taped sessions where the deceased explains the whole process are changing the applications of this law. There is the deceased on-screen explaining who gets what, why and how and in what way that affects the rest of his/her property. Note that the requirement of mental deficiency is not about what the person understands generally, but what they understand about what they own. It is tempting to wonder if this requirement stems from the fact that the rich are allowed to be ‘eccentric’ to a certain extent in our society.

The second prong of capacity is whether the will maker is operating under an “insane delusion” or “mental derangement.” However, again, this insane delusion or “false belief against reason,” is not about anything other than the assets in the will. Provided that someone has an insane belief against reason, it doesn’t matter unless it affects the property divided up by the will. If someone believes they see dead people, but doesn’t attempt to leave money to any of them, then that is probably all right. Usually, insane delusions come in the form of an irrational belief that someone is not the deceased’s child or that the deceased spouse has been disloyal in the conjugal sense. But, again the deceased can hold a whole host of irrational beliefs about matters other than their property, and that would not invalidate their will.

“I am taking you out of the will,” or “I am going to disinherit Gregory and leave all my money to Steven,” are statements that seem far more like they belong in an Agatha Christie novel than in a serious discussion of estate planning.

Although the world is not filled with conniving relations who maneuver endlessly to gain the favor of a truly despicable older family matron or patron who uses their wealth to control them all until it culminates in murder most foul, this model is instructive regarding how changing a will can cause hard feelings between family members and create legal difficulties. The chief legal difficulty created by changing a will is that sometimes the two wills look like sequels to a movie and are literally called (Will I) and (Will II).

When this happens there will be, just as in the Agatha Christie mysteries, a group of relatives and friends who are favored by the first will (Will I) and not by the second (Will II). These relatives realize that if they can challenge and get rid of Will II, Will I will take its place, and they set out to get rid of Will II after the deceased is gone and can not take further action. Of course there are also the relations or friends that are favored by the revised will (Will II) and fight to keep it valid in the eyes of the law. There are many ways to attempt to invalidate a will that can be the subject of another article. The point of this article is to make it clear that changing a will by substituting it with another will drafted later in time is an exercise fraught with peril.

A better way to go is to expressly change from one will to the other or to expressly repudiate the first will. An express change is a change in writing. For example, if you want to get rid of the first will write that, “I hereby repudiate the first will with this writing and all of its provisions hereby are to be considered void.” It is difficult to get around the fact that you intend to get rid of the first will entirely if you fail to make such a claim in writing. Once that is settled, then you can begin the second will by stating again that you made another will before and that it is entirely void and does not in any way reflect your desires with respect to your property. And finally, include in the second will that it and it alone are a reflection of what you want when you are gone.

Another good way to go is not to let anyone, other than your attorney, know you are making a will or replacing an old will with a new one. People cannot fight over what they have no idea exists or has existed. This is a good way to keep the elements of an Agatha Christie novel regarding wills out of your life and the lives of your heirs. The fictional tyrant who rules the family with their notions of inheritance or disinheritance is the kind of person who has people fighting over their will because they are always blabbing about it. With wills it is best to adopt the policy that loose lips sink ships when it comes to your relatives fighting over what you meant after you are gone. This is not what anyone wants for their families and, with a little discretion and a lot of planning, it is easily avoided.