GUEST APPEARANCE: Why you shouldn’t try to disinherit an heir by leaving them $1 | Opinion

There’s a long-standing line of thought that has persisted as long as anyone remembers in estate planning law that you should disinherit someone by leaving them $1. The theory goes that this prevents them from contesting your will because they have not been disinherited; they received a monetary gift.

Many lawyers and clients, to this day, buy into this principle and haven’t given much thought to the context or why or how it would work mechanically. The truth is that this old tactic is not based on solid law, it is unnecessary and can cause problems for the estate in the long run.

The theory

There is an estate planning rule in New York that if you add what is called a no contest clause to your will, and someone later disputes your will, that person loses their inheritance. The purpose of leaving money to someone is to deter them from contesting the will because according to the no-contest rule they would lose all the money you leave them.

Also, the theory goes that there is an argument that if you specifically leave someone out of your will, say an adult child, while leaving gifts for the rest of your children, it opens the door to deprived child to contest the will and question your mental capacity at the time you signed the document. They might argue that you must have forgotten they existed and therefore leaving them $1 instead of not mentioning them at all shows that you considered them when you executed your will.

The faulty logic

Anyone can challenge your will, whether you disinherit that person or leave something to them. However, leaving someone $1 and adding a no-challenge clause means that, taken together, the only thing that person has to lose is $1. This will not deter anyone from contesting your will if they intend to. It is simply an ineffective planning approach.

The problems

By leaving $1 to someone, you are also creating unnecessary work for the estate and potentially bringing someone into the estate who otherwise might not be involved at all.

You may inadvertently include someone who would otherwise have no inheritance rights or otherwise receive notice of your death or estate. This person may now cause problems for your estate and, frankly, may have the motivation to do so after finding out that they are being paid the insulting sum of $1. You also open the door to an argument that you intended to leave this person more than a dollar and that must be a typo given the size of the gift.

Finally, for a person to officially receive their $1, they must be notified and a check must be drawn up and sent to that person. Your executor or administrator will have to wait to receive a receipt and discharge from that person, or explain to the court why none have been received, which may delay the closing of the estate. In addition, all this work will add time and expense to the domain.

How to Properly Disinherit Someone It is best to make a definitive statement that you specifically and intentionally make no provision for a person or a statement that you are disinheriting them. Such a statement clearly shows that you remembered the person (they can’t claim that you wanted to leave something for them and just forgot), and also shows that you unequivocally wanted them not to be included in your estate.

While that person can still dispute, such a clear statement will make any dispute more difficult to win, especially if you state why they are disinherited (i.e. if you state that you provided them during your lifetime ). In this way, with a properly drafted and executed Will, and making it clear in your Will that you are making no provision for a certain person, you can create an estate plan that should stand up to future scrutiny.

No-contest clause

A no-contest clause can be a powerful deterrent, if the person has been left enough to make them think twice about contesting the will. The problem with this approach is that it forces you to leave something to the person you think can challenge the will, and of such value that they won’t want to risk losing it by challenging the will.

You can never completely prevent someone from challenging your will, but you can mitigate the risk of this happening by discussing your wishes with your family and having a properly drafted estate plan.

David J. Whitcomb, Esq., is owner of Whitcomb Law Firm PC, with offices in Canandaigua and Geneva. Contact him at [email protected] with questions.

David J. Whitcomb, Esq., is owner of Whitcomb Law Firm PC, with offices in Canandaigua and Geneva. Contact him at [email protected] with questions.

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