A good friend of mine Josh Coleman is, among other things, a world-famous therapist in the genre known as 'control mastery theory,' which is a branch of psychotherapy that relies upon nurturing and developing the client's own subconscious plan for mental health. Just as the body has built-in processes for healing, so does the mind. As you might imagine, such a philosophy dovetails well with the client-centric estate planning we espouse in our firm and on this blog. So I am always interested in what Josh has to say about issues of estate planning.
In Dr. Coleman's October newsletter, he posted an answer to the question a client posed whether or not to leave an estranged child out of a will. I cannot do justice to his answer without quoting it in full, so - with Josh's permission - you will see the entire Q&A reprinted below.
"I [Dr. Coleman] recently received this question from a reader. Since it's a common question from people who have read my new book, I thought I decided to post my response for others who may considering this.
Dear Dr. Coleman,
For those whose children have refused to acknowledge/speak to/communicate with them for several years, what do you think about leaving those children out of a will? I feel so hurt and betrayed by my child's refusal to see me or let me see my grandchildren. It's really hard to want to respond by being generous.
Dear Reader,
I would certainly sympathize with the impulse to leave them out of your will where they have refused contact for several years. However, if I were going to leave my children with a long-lasting message that would carry on after my death, it would be one of generosity and dedication, despite how unjustly I believed that I was treated by them. Our parents are with us long after they die, and we will be with our children long after we're gone. Imagine how powerful it would be to give your child his or her inheritance with a letter of love and - without guilt - not only shares your regret that you couldn't be closer in your lives together, but also acknowledges that he or she must have had her reasons to have cut off contact.
Now imagine the message you send if you leave your child nothing, or only leave the inheritance to the child who remained close to you. There would be damage done to the child left out of the inheritance and there won't be much satisfaction to you in it, because you will no longer be there. I believe that, as parents, we need to think of how those consequences will play out well after we're gone. It is also possible for children to forgive us after we're gone for whatever ways that we wronged them, or for whatever ways that they believed that we wronged them."
In my [Peter Myers's] practice, I have seen this from all three angles: 1. the client/parent who desires to disinherit a child; 2. the disinherited child; and 3. the non-disinherited child (or other relative) who receives the windfall from their sibling. With rare exception, no one is happy with the result. In about half the instances, a lawsuit, trust contest or will contest is filed. Depending upon the strength of the evidence, that case may or may not be settled, but even when the case is settled, you can forget about the children's relationship with each other ever healing. If the case is not settled, the children are both left unhappy as the parents' and their 'dirty laundry' is aired in public, lawyers are enriched at the expnse of both children, and no one is vindicated.
The court system is an inefficient forum for any sort of dispute. This is because probate examiners and judges have to follow all of the laws and rules of procedure, regardless of the size of the case, the stupidity of the arguments being advanced, or the relationship of the litigants. Thus, concerns over very small amounts of money or property can turn into full-blown trials over silly things like "she sold the Hummel figures for less than they're worth" (using an actual example from my early practice) - and the siblings may never speak to each other again.
The best way to minimize disputes that occur after death is to spend a little extra time with a competent drafting attorney discussing the unique family situation that is causing you to fret about the possibility of the dispute occurring. There is no single solution: in one case, you might want to use a third-party trustee, while in another situation (where the children have a decent working relationship), you might consider making two or more of them co-trustees, and in yet another situation you might want to discuss use of a "trust protector" (which can be a committee of close friends or family) to be able to remove and replace a trustee if things are not going smoothly. Different prospective solutions need to be evaluated so that the path chosen best accomplishes the planning client's family's objectives.
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