New York Estate Planning & Elder Law Blog
It happens often enough that a parent for many reasons decides to disinherit one, several or all of his/her children. At the same time, this is often not a controversial decision and is just as common both understandable and predicable. Perhaps a person promised their estate to a specific child, stepchild or niece or nephew for taking care of them instead of being required to be sent to a long term continuing care facility. Perhaps the parent provided financial largesse to his/her via college education, graduate school and even helped them purchase a house but had one child who had special needs who always lived at home and insured that child’s future by funding a trust during his/her lifetime and then disinherited all of his/her other children by putting the whole of the estate into the trust.
Mickey Rooney was a very well known and well paid actor that had a long career, with many children and many marriages and disinherited his children. He instead left his estate to his stepson and explained that his kids were better off than he was. By the time Mr. Rooney passed, his estate dwindled to just about $18,000, so there was little incentive for any of his kids to contest the will, although the same did not hold true for Mr. Rooney’s then current spouse. Unfortunately for some families, this can be a shock and there are sufficient incentives for the family to contest the will.
INVALIDATING THE WILL
Louisiana is the only state that allows for a disinherited child to elect to take a statutory share against the stated wishes of a parent’s will. If the parent did not dispose of everything in the will, due to perhaps an heir predeceasing him/her, the children may inherit that property via intestacy statutes. If a parent, however, leaves all of his/her property to someone else via his/her will, the only thing the child/children can do is to invalidate the will. In New York, if a person dies intestate – meaning without a will – the spouse inherits the first $50,000 and half of the remainder. The children then split the other half between themselves. The child/children must also consider if there was a previous will, and, if so, what treatment is afforded to them in that will. But the matter gets more complicated from there. Property held in joint tenancy (with a business partner for example), by the entireties (held as a marital asset with the spouse) takes those assets out of the estate.
GROUNDS TO CONTEST WILL
There are many many factual scenarios that enable a party to contest a will. The first consideration is who may contest the will, or, more properly stated, who has standing to contest the will? In New York, only people who have a material interest that may be prejudiced if the will as written is fully probated. Perhaps the heir stands to inherit more if the intestacy law controlled or perhaps the heir stood to gain more under an older will. There are several grounds to contest the validity of a specific will:
- Undue influence, coercion or duress;
- Revocation;
- Incapacity or lack of capacity;
- Fraud;
- Forgery; and
- Improper execution.