What happens when an heir is disinherited?
This article discusses what it means for an individual to disinherit an heir along with how it affects the administration of an estate after death.
Not every British Columbia family gets along. Some relationships degrade to the point where a person may decide not to leave someone who would legally qualify as an heir an inheritance. When an individual creates his or her estate plan, the family dynamic could affect how the testator, or creator of the will, structures it.
The heir in question may or may not know of the testator’s intent to disinherit him or her. In either case, the estate trustee could receive a challenge to the will if the heir decides to fight for his or her share of the estate. It may help for the parties involved to understand what disinheritance is and what happens during estate administration.
What does it mean to disinherit an heir?
As the name implies, to disinherit an heir means not to leave him or her a share of the estate. In some cases, a testator may leave a share to an heir, but it is not as much of a share as other heirs receive, which the law refers to as an indirect disinheritance. On the other hand, a testator could fail to leave any inheritance to a particular heir, which the law refers to as a direct disinheritance.
Regardless of the circumstances, the individual creating the will could also include a clause in his or her will indicating that if any heir challenges the provisions of the will, he or she forfeits any potential inheritance in an unsuccessful will contest. What most people fail to understand is that this particular type of clause only applies if the individual making the challenge is named in the will. The court may invalidate such a clause as a violation of public policy.
How disinheritance affects estate administration
A disinherited heir has two avenues for filing an objection to the will. The first occurs before the court issues a Certificate of Appointment of Estate Trustee. The heir may file a Notice of Objection, which, if granted, will keep the estate trustee from beginning administration until the matter is resolved. If the Certificate of Appointment already exists, then the heir may file a motion to return it in order to challenge to will and prevent administration.
Once this process begins, the estate trustee’s job is to defend the testator’s wishes. This tends to go much more smoothly if the deceased individual left some form of written explanation for the disinheritance. Perhaps when creating the will, he or she discussed the matter with a lawyer, who asked plenty of questions and kept detailed notes. Medical records could also indicate whether testamentary capacity was an issue at the time of the will’s execution. In the absence of definitive evidence, the heir may receive a share of the estate.
Whether an individual is the heir or the estate trustee, addressing a situation in which a decedent disinherited an heir could result in a time-consuming and stressful legal battle that could potentially diminish the assets of the estate. A good first step would more than likely involve thoroughly discussing the situation with a lawyer in order to gain an understanding of the rights and legal options on both sides of the issue. Doing so could make it clear whether going to court is worth the time, effort and expense.