My spouse and I currently have wills in place. We have three children. We have omitted one of the children from any benefits. Our estate will be divided among two of them. I heard watching Perry Mason that the one omitted would be able to contest the will. Is that correct and if so could I just leave the third child a nominal amount?
2 Answers from Attorneys
You can direct your estate to be distributed in any way you wish. In order to mount a successful will contest, the disinherited child would have to prove someone overcame your free will to write him or her out, or prove that you were not competent to make a will. For example, if the other two of your children conspired to manufacture untruths about the disinherited child to persuade you to remove him or her from receiving a legacy, maybe the disinherited child would have grounds. However, you're still alive. Better to spend your resources on yourself and leave little for anyone to fight over.
I agree with Attorney Prihoda. I would also recommend highly that you go back to the attorney that prepared the wills (since she or he is familiar with your circumstances).
Some attorneys would recommend acknowledging the third child or, as you said, leaving a nominal amount and, beyond that, including a no-contest clause (aka in terrorem clause). That would set up circumstances where the omitted heir would have to consider his or her own costs to contest in relation to the likelihood of winning, as well as the loss of the nominal amount.
If the circumstances for your exclusion are fairly clear, you probably do not have a significant concern, especially if the omitted child does not have significant resources with which to retain counsel. Your attorney might also advise you concerning the amount of specificity to use.
There is not, however, anything you can do to avoid the issue altogether. If someone wants to challenge, even with a losing case, they can.
Gifts and the use of trusts are another consideration.
Finally, I note, it sounds like your wills were professionally prepared, but, if not, I have yet to see a will done at home that I would consider "correct." A slight mistake could open other avenues for challenge that then might negate your intentions.