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Kates Nussman Rapone Ellis Farhi, LLP

Trying to Disinherit a Child? Better Leave a Letter!

Imagine your feelings if you were left out of a parent's will while your siblings were not? Well, if you are Sam or Carol Pennella, you don't have to imagine it, because it happened.

Sam and Carol faced this situation in In the Matter of the Probate of the Alleged Will of Joan Pennella, recently litigated in Bergen County, New Jersey. In a case that would make any sibling jealous, the late Joan Pennella deliberately left two of her children, Sam and Carol, out of her will, while leaving equal shares of her estate to her other five children. Sam and Carol sued, claiming that their mother Joan was not of "sound mind and competent" to create such a will and that she was "unduly influenced" was under mental, moral or physical exertion) by their brother Carl.

The appeals court upheld the trial court's finding that Joan indeed had the capability to create this will and was not under undue influence. Both courts placed strong emphasis on letters that Joan had written to both Carol and Sam before her death, showing that she intended to disinherit them. In one letter to Carol, Joan wrote that if Carol did not return her necklace, she would not leave her an equal share of her estate. In a similar letter to all seven children, Joan noted that if Sam did not repay his outstanding debt to her, he would also not receive a share. Sam and Carol may have interpreted these as a mother's half-hearted threats, but the Court interpreted them as a clear statement of Joan's intent.

When trying to disinherit a child, it is helpful to follow Joan Pennella's lead. Courts are looking for evidence of intent. While witness testimony is significant, it could come down to "he said, she said." The strongest evidence will come from the parent, grandparent or other will drafter herself or himself. In this case, Joan's warnings that she would remove Sam and Carol from her will were undisputable proof that she did, in fact, want to disinherit them. To help avoid legal battles between family members, it may be a good idea for those wishing to disinherit a child, or give one child or children greater shares than others, to write down their intentions - and the reasons why - in their own words. With assistance from Angela Yu, Rutgers School of Law & Rutgers Business School.

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