Legal Question in Wills and Trusts in North Carolina

can a mentally unstable (permantly disabled)child be disinherited with a verbal will?

Asked on 11/16/13, 7:52 am

1 Answer from Attorneys

No. There are very very limited circumstances for a verbal will in NC and it will be very difficult to establish. If the "verbal" will is declared invalid, then the child will inherit. Even if this is arguably considered, it is going to invite a will caveat (assuming the child can dig up enough funds for a lawyer) and a caveat is most certainly going to be filed putting the validity of the will into doubt.

Wills are not that expensive. If a parent is trying to do something as sophisticated as disinheriting a child, it must be done in the right way so as to avoid any sort of will caveat or make a will caveat very unlikely to succeed. The parent should get to an attorney to have this done. While I would not recommend the forms out there, even that is better than having an oral will. Finally, even a handwritten will (entirely in the parent's writing and found at death among the parent's important papers) will be better than a verbal will.

If the parent is still alive and mentally competent, I would encourage them to make a will now. I prepare wills and related estate planning documents for a reasonable fee; the parent may contact me at [email protected] if interested.

If the parent is deceased and only made this oral will, and if you are the personal representative, then I would speak to a probate lawyer who practices in the county where the estate is or will be probated. Explain the circumstances and see if this "will" meets the qualification for a valid will in NC. Even if the will is invalid, and if the mental issues with the child are bad enough, it may be possible to get a guardian appointed for the child. That way, the guardian can assume control of the child's share of the money and can distribute it to the child as needed to prevent the child from frivolously spending the money.

If you are the beneficiary who supposedly has been disinherited, then I would advise you to go to a probate attorney who practices in the county where the estate is or would be pending. I do not know what assets are in the estate or what a will caveat would cost, but this oral will can and should be challenged if it does not meet the requirements.

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Answered on 11/16/13, 11:12 am

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