Can You Cut Your Child Out Of Your Will?

You may feel hurt and disappointed, even angry by the way you’ve been treated by your children – to the point where you want to leave them little or nothing of your estate. Even if they’re adults and no longer dependent on you, that can be problematic. But it’s not impossible.

Our wills, estates and succession laws allow independent, adult children to challenge your will after you die. They can ask the court to change it, arguing it doesn’t adequately provide for their maintenance and support. If the court agrees, it can change your will so it makes “adequate, just and equitable” provision for your kids, despite what your will says.

But what if you have good, valid reasons that are logically connected to and justify your decision to leave very little to them – or to cut a child or children out of your will altogether?

A recent case shows (yet again) that even if your estate is big enough and current community standards are considered, there are circumstances where you no longer have any ongoing moral obligation to provide for independent, adult offspring.

Here, a family patriarch, Mr. Smith (names changed) decided in his last will to leave everything to Manny, the youngest of his seven grown children. Four of his other offspring, led by his oldest son John, asked the court to change the will in their favour.

Mr. Smith hadn’t signed a written document setting out his reasons for the unequal treatment of his offspring. But the court looked at what Mr. Smith told his lawyer (who prepared the will) about why he was cutting his other kids out. The court also considered some of the factual background that led Mr. Smith to his decision.

It turned out that many years earlier, his eldest son John, a successful man himself, had a nasty falling-out with his parents about a house the two families shared, leading to a hurtful parting of the ways.
When Mrs. Smith developed dementia years later, John spear-headed a court fight with his dad over who should be “committee” (take protective care) of Mrs. Smith and take charge of her estate. In that lawsuit, John made some very upsetting allegations against his father, who was deeply offended and angered by them.

In the years after those events, John had no further contact with Mr. Smith. And even when Mr. Smith reached out and asked John to come see him shortly before his death, John refused.

The court decided John had been estranged from his dad for some years, and Mr. Smith was justified in leaving nothing to him and another son. Taking into account Mr. Smith’s wishes, the court also only awarded 5% of Mr. Smith’s estate to the other two sons who attacked his will.

To give yourself the best chance of having your wishes in your will honoured after you’re gone, make sure you consult a lawyer.

Written by Janice and George Mucalov, LL.B.s with contribution by COBBETT & COTTON. This column provides information only and must not be relied on for legal advice. Please contact COBBETT & COTTON for legal advice concerning your particular case. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer. “You and the Law” is a registered trade-mark. ©Janice and George Mucalov.

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