October 5, 2020

A common myth about estate planning is that if you leave a nominal amount (say $1.00) to someone it prevents them from challenging your will. Like most urban legends, there is a grain of truth here – but it’s still a myth.

This grain of truth is that one of the grounds to challenge a will is to argue that the testator (i.e. someone who makes a will) lacked testamentary capacity (in other words, that they did not have the capacity to make a will). One element of having testamentary capacity is to remember the persons that you might be expected to benefit under your will.

As such, while it is not determinative, giving nothing in your will to, say, your daughter (while your other children benefited) raises questions about your testamentary capacity (as people would be expected leave something in their wills to their children). A provision in your will giving your daughter a dollar answers that specific question by demonstrating that she was remembered.

However, your hypothetical daughter could still argue that receiving substantially less than her siblings was indicative of lack of capacity. While capable testators have the right to exclude their children for any reason, if your daughter was your dependant she could argue that she was entitled to dependant support. She could also assert that you did not appreciate the dependant support claim she could bring due to the exclusion – another factor for demonstrating testamentary incapacity. Your daughter could also argue other factors showing a lack of testamentary capacity, such as understanding the nature of your property or understanding the nature and effect of a will.

Your dollar-only daughter could challenge the will on other grounds, such as stating that the required formalities were not met (e.g. not two witnesses for a non-holograph will) or claim that you were unduly influenced (in other words, your will was essentially supplanted by someone imposing their own will).

Finally, even if your daughter does not challenge your will per se, she may be able to seek for your will to be rectified (corrected). For example, if she was left $10, she could argue that this should have been $10,000 and the lawyer simply made a mistake when writing the will (the proverbial slip of the drafter’s pen). While the rectification application might not be successful (especially if the drafting lawyer took good notes), even unsuccessful litigation will delay the administration of your estate and will be costly.

The bottom line is that rather than relying on an old wives’ tale, a testator who wants to exclude someone close to them from their will should ensure that their will is drafted by a professional who specializes in will drafting. In matters that will be likely to cause conflict, an ounce of prevention is certainly worth a pound of cure.