Ways to Prevent a Less-Favored Child from Successfully Challenging Your Will in Court

When you have more than one child, the easiest way to divide your estate among them is to give each child the same amount. If you have two kids, they each receive half of your assets; if you have three, they each get a third.

But what if you don't want to divide your assets equally among your children? What if you don't want to leave any of your estate to any of your children at all? You need to do some advance planning to minimize the chance of a child successfully challenging your will.

A simple way to prevent a lawsuit over an unequal inheritance is by making your wishes known to your children while you’re alive.

“Many parents assume their kids will understand why they did what they did, but this is usually not the case,” says Candice N. Aiston, an estate planning attorney with Aiston Law in Portland, Oregon. “Parents should communicate their thoughts with their children during their lifetime and get any feedback from the kids that maybe they had not considered. It is much easier to sort out hard feelings while the parents are still alive than it will be after they're gone,” she says. “Parents should communicate their thoughts with their lawyer and get feedback from the lawyer about how successful a plan they have in mind will be.”

Another step to take is to create evidence that you were of sound mind and not acting under duress when you created your will.

If you are older or in poor health, consider having your will executed after your next doctor’s visit, says Margaret T. Campbell, J.D., an assistant professor in the School of Legal Studies at Husson University in Bangor, Maine. You can even take your estate planning attorney to your doctor’s office and ask your doctor to be a witness to the will to make any challenge on the basis of incapacity more difficult, she says.

In addition, you should never include your children in meetings with your attorney discussing the will, or at the execution of the will, Campbell says. While your children might object, especially a child who is your caregiver, it’s for your own protection. Campbell says she follows this practice in all cases, no matter how loving the family, so that no matter how many years later a challenge comes up, “I can testify that I did not allow anyone other than the client into those meetings and thus the favored sibling was not there to unduly influence the parent. I also question closely any client who is considering an unequal division, to assure myself that they are not doing it out of undue influence,” she says.

If you’re concerned about a child using an inheritance irresponsibly but you would otherwise like to leave them something, consider using a trust to provide for them. They might not be thrilled about the decision, but they'll probably accept it more readily than they would being left out of your will. A trust can help prevent conflict and increase the odds of your child using your money responsibly.

For more expert advice on how to allocate your estate among two or more children, read my Investopedia article, Advice on Wills: Should Each Child Get the Same?