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Can your problem child challenge your will?

You have four children, and three of them have been everything you ever hoped for as a parent. They never got in trouble with the law, they all graduated from college, they got married and started families and careers. They still come home for Christmas and send you cards on your birthday.

Your other child, though, has always faced problems. Small-time legal issues started in high school. They led to failing grades. That child never even went to college. He or she now struggles to keep a job for more than a few months.

As a result, that child has always resented the other siblings and their success. He or she has never listened to you, not while growing up and certainly not now. You barely see each other. When you do, it leads to arguments and fights.

You do not want to leave a substantial inheritance to that child. You love him or her, but you know the money would quickly get wasted. It’s not a risk you will take.

What you worry about, though, is whether your child will challenge your will. Does a child have a right to do that?

Leaving someone out

Your child typically does have a right to challenge if he or she gets cut out of the will entirely or given an inheritance that is not proportionate. If the court finds the will invalid, that child would then get a portion of your estate since it naturally passes on to your children. He or she stands to gain from such an action due to this inherent relationship and therefore has a right to challenge and protect his or her interests.

Prior wills

Another thing to consider is a prior will. Anyone listed in that will and then removed from the current will has a right to challenge.

For instance, perhaps you planned to leave that child $500,000. You kept it in your will for years, hoping he or she would turn a corner. When it was clear that was not going to happen, you cut the child out in the current will.

Even if that person was not a direct heir, this would give him or her the right to challenge.

What can you do?

If you really want to prevent a challenge, you may have to grit your teeth and give that child an equal portion. Yes, he or she may waste it, but keeping things even can reduce conflict. Which do you care about more?

It is important to know about all of your options to avoid a contentious estate litigation process, so you should also know that no-contest clauses do see occasional use as a way to discourage legal action. However, be warned that many of these clauses do not hold up in court.

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