Family Estrangement & Excluding Specific People
Will - Updating Will - Invalid or No Will - Power of Attorney - Personal Directive
To schedule an appointment, contact our law firm at 403-400-4092 or Chris@NeufeldLegal.com
When you are looking to have your will and other estate planning documents drafted, and you have estranged children (or other estranged family members), it creates several legal challenges, primarily because disinherited children (disinherited family member) may challenge the legitimacy of your will after your death. The estranged child (estranged family member) may argue that the will is invalid, including:
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Undue influence: The child might claim that the parent was pressured or manipulated by another person (such as another heir or a caregiver) into changing their will.
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Lack of capacity: The child could assert that the parent was not of sound mind or lacked the mental capacity to make a valid will at the time it was drafted.
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Fraud or forgery: The estranged child might allege that the will was tampered with or that their parent's signature was forged.
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Improper execution: They could claim the will was not signed or witnessed correctly according to legal requirements.
To minimize the risk of a legal challenge, you need to be take proactive steps when your will is drafted and excludes estranged children (estranged family members), including the consideration of:
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Explicitly state disinheritance: Do not simply omit the estranged child's name. Instead, explicitly state your intention to disinherit them in the will. Using clear and unambiguous language makes it more difficult for a court to assume the omission was an oversight.
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Include a no-contest clause: A no-contest clause (or in terrorem clause) can be included in the will, which states that any beneficiary who challenges the will loses their inheritance. This can be a strong deterrent, especially if the parent leaves a small bequest to the estranged child, giving them something to lose if they decide to contest the will. In Alberta, an in terrorem clause can be legal, but its enforceability is not absolute and is subject to significant limitations.
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Document your reasons: You may want to document the reasons for the disinheritance in a separate, sealed letter to be opened by the executor or a court after your death. While you should avoid overly detailed or inflammatory language in the will itself, this document can provide context and support your decision if it is ever questioned. It can also provide evidence that you were of sound mind when the will was drafted.
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Consider a trust: Placing assets into a trust can be an effective way to avoid the probate process, which is where challenges to a will typically occur. In a trust, you can stipulate how assets are to be distributed and under what conditions, and since the assets are not part of the will, it is much harder for an estranged child (or estranged family member) to contest their distribution.
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Seek legal counsel: Working with an experienced estate planning lawyer tends to be a crucial step, as the lawyer can advise and navigate the specific laws and legal precedent at issue, and draft a will (and trust instrument) that is legally sound and less susceptible to challenges.
Our law firm can help you plan for the future, including the preparation of a well-drafted will and other estate planning documents, including when you are looking to exclude certain family members from your inheritance, as well as dealing with the legal demands associated with the passing of a loved one. We welcome you to contact our law firm today at 403-400-4092 or via email at Chris@NeufeldLegal.com to schedule a confidential initial consultation.
IMPORTANT NOTE: This website is designed for general informational purposes. The site is not designed to answer specific questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice in respect of your individual situation nor use it as substitute for individual legal advice. If you want specific legal advice, you need to engage a lawyer under established legal engagement procedures that have been specifically agreed to by that lawyer.
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