Legal Issues: Excluding Persons from Your Will

The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

Very often this firm is asked to exclude from a testator’s Will a child or other person who would otherwise be the natural beneficiary of the testator’s bounty.

This occurs most often when the omitted child has shown little or no desire to have a relationship with a parent or has done something that is unforgivable in the eyes of the Testator.

There are at least two wrong ways to perform that task:

The First Wrong Approach is just to not mention that child, if it is a child who is being excluded.

This approach is not very effective because it makes the Will easier to attack by the person excluded.

There are very few ways that a Will of a testator can be successfully overturned. Those ways include lack of capacity, undue influence and fraud. Not mentioning a child plays into the hands of a person challenging the Will. It could be argued that you did not intend to exclude your child, but you did not have sufficient mental capacity to remember all your children. This argument might be bolstered by an argument that the child who did maintain a relationship with their parent in someway exerted undue influence. No opinion is offered on either of these arguments—they are mentioned to demonstrate some of the possible pitfalls in not mentioning a child in the Will.

Second Wrong Approach – Mentioning the child but leaving only a token gift of ten dollars or other similarly small sum to him/her.

This approach is effective in avoiding the possible problem cited above, but may create a whole new set of problems for the Executor that you have chosen to administer your estate.

In my own practice, I have been confronted with testators who left a token bequest to persons that either cannot be easily found or do not wish to be found. This is compounded by Wills that do not provide for independent administration.

In those cases, independent administration status may be achieved by the consent of all beneficiaries, but if that beneficiary is either unwilling to cooperate or cannot be found, it is an unnecessary problem that the Executor must solve before he can complete his tasks.

Even if an independent administration has been authorized by the Will, token gifts create problems. In most cases, the problem can be solved by tendering payment to the last known address, bonding around it or in extreme cases, paying the funds into the registry of the Court (usually not practical for a very small bequest). The point is that all of these problems in probate could have been avoided by proper Will drafting.

I have been truthfully advised by a few of my clients that in some of our sister states that it is mandatory to leave each child something. I do not profess to comment on the law of sister states, but under a Texas Will, no mandatory gift to children is required.

Right Approach – There may be more wrong ways than I have listed, but the correct way is to approach this subject of excluding children as follows:

Acknowledge the existence of the excluded child but make certain that it is well understood that such child is to receive nothing from your estate. Example: “I have one child, John T. Blacksheep, who is excluded as a beneficiary under this Will for any purpose. He, together with all of his lineal descendants, shall never be deemed to be entitled to any portion of my estate.”

This sentence or something similar makes clear that you had sufficient mental capacity to make a Will, and that you excluded this child as an intentional act. It was not an oversight or an error.

As always, when you need a Will, have it drafted by a competent Texas attorney of your choosing. The above is just one of the problems created by so-called “street knowledge” of the law, some “will kits” or persons who may not be sufficiently familiar with Estate Law in Texas.

James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see- www.houstontxprobate.com

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