People usually have their reasons. Jane may feel she treated all the kids equally, but the kids might feel differently either with or without cause. Or maybe something happened between the siblings Jane knows nothing about. Parents usually think they know a lot more about what goes on between their kids than they actually know. Mary might also find the family deeply annoying on a personal level, even though she loves them. Some personalities just don’t match. Some families have dynamics, like bickering or teasing, that are fine for most but some members just can’t handle.
It’s up to Mary. I don’t personally like to think of will bequests as a set of beyond-the-grave rewards or punishments, but, to some people they are.
Be very careful of leaving “reasons why”. There is such a thing as “testamentary libel”, and the disinherited child is likely to sue if she feels she was wronged, thereby getting more out of the estate than the testator intended.
It’s best to include a “no contest” clause such that if anyone contests the will they lose their share, and leave some small gift to the wayward kid. That way, they have something to lose by contesting, and they may be satisfied with getting anything and go away peacefully.
I think the only ‘should’ here is that you should absolutely consult a lawyer, like Nava said.
Apart from that - it depends on what you want to say to Mary and the other kids. I agree that wills should be for beyond-the-grave reward or punishment, but like it or not, the reality is that they do get read as beyond-the-grave messages. You’ve got two options:
leave her nothing. The message is ‘Mary, for whatever reasons, doesn’t see herself as part of this family and has gone to a lot of effort to make that clear. I’m going to respect that.’
leave her something. The message is, ‘I’m always going to see Mary as part of this family. If she wants to reject what I’ve left her, that’s her deal, but she’s my daughter and I’m treating her like it.’
I don’t think there’s anything horribly wrong with either one, but personally, I’d definitely be going for the second. Among other reasons, two years isn’t actually that long - just because she’s been out of touch for two years doesn’t mean she’ll want to be out of touch all her life. If I left her nothing, I’d be haunted by the idea of her changing her mind at just the wrong moment, and getting back in touch only to find that I was dead and had left her out of the will, and taking that to mean I’d stopped loving her. (I would also be leaving her a highly sappy letter. Again, that’s just me.)
I used to work at a bank that dealt with trust funds. Many people had rather odd stipulations:
One said his two kids could only inherit (a lot!) if they got a Doctorate Degree - otherwise, they got nothing.
One woman had three kids - one of which was the “problem child”. The money was divided evenly, but problem child got a small, weekly amount to be paid directly for rent and living expenses. I guess she figured if he got it all in one lump sum (like the other two kids) he would blow it all in short order on drugs/bad habits.
One guy split it up so the kids got some money for college, some money when they turned 21, and the final lump sum when they turned 30.
There were several who had given $1 to a particular child - shows they did not “forget” to include them in the will, but were not giving them any more than a single dollar. I believe this is the best course of action to take when you want to be specific about NOT giving a specific heir any money. No future lawsuits about mom/dad being forgetful and unintentionally excluding them from the will.
As to this case - if the parent has no ill-will, I would divide money equally. But if this disappearance and lack of contact is considered a break with the family, I don’t see why they shouldn’t keep any inheritance from them as well.
If I were in this situation as the mother, I think I would inclined to leave a quarter share to each child, but with the stipulation that if Mary doesn’t come for hers in 18 mos or whatever time, that share is divided between the other three.
That’s not quite the same thing as contesting the will: if your father had said “that’s ridiculous, I want half”, THAT would be contesting.
In your specific situation, there would be no legal battles whatsoever (though the father and aunt should check into whether it changes the tax situation any, e.g. gift tax).
For the OP: In your situation, Mary might well consider contesting the will if she’s left out of it or given a smaller share than she thinks fair. It is possible you can avoid that by setting up a living trust and transferring all your assets to that, with the trust documents saying what happens to any money you didn’t spend.
I can’t say whether you should disinherit Mary, but if you do decide that’s the way to go, discuss that risk with your lawyer and set things up to reduce that risk.
Oooh - and reading more of the thread: if you do want to keep Mary in the will, but believe the estrangement has a cause such as mental illness, controlling spouse, drugs or whatever, you can leave her share in a kind of trust that can be used for her benefit, but that she can’t gain access to directly. Our wills leave the bulk of our estate in trust for the kids; my daughter’s trust would be dissolved when she turns 25, my son’s trust would be held until he can prove he can support himself (it’s a “special needs trust”; my son has a form of autism).
My opinion – and we all know what opinions are worth – if the daughter didn’t do anything violent, didn’t set fire to the house, didn’t shoot one of her brothers, but simply moved away and won’t talk to anyone – then leave her in the will as an equal-shares heir. She’ll inherit, and perhaps be thankful.
Family matters more than emotions do.
Disinheriting makes it much, much harder for her ever to come back to her brothers and sisters. Giving her the same birthright as them makes it easier for a reunion some day. Why put obstacles in the way of someone else’s happiness?
My own will divides everything equally among surviving classes of relatives. (Some of these classes are now empty, but the will was written with that in mind. For instance, my dad would have had a full share…but now he’s gone.)
My will also has a clause asking the courts not to execute my murderer, if the matter should ever arise. I oppose the death penalty…and if the victim’s beliefs carry any weight at all – and in California, they do – then I don’t want my murderer’s blood on my soul. I only mention this to emphasize: the will is yours. It reflects your wishes, opinions, values, and conditions.
You could require that the missing daughter come back and spend time with her siblings – have dinner, talk – even require her to be available for contact by phone or mail – before the inheritance is granted. Wills with weird conditions are fun!
(“To my nephew Ferdinand, half the value of my estate, but only if he shaves off that goddamn goatee and keeps it off for ten years.”)
Never mind about what we think you should or shouldn’t do. This is one of those situations where there’s not a right or wrong answer, only the answer you can be at peace with. And that is likely to be whatever your gut-level, knee-jerk response is.
So, right off the top of your head without thinking at all, what do you think about this whole will thing? Is your instinctive response “She doesn’t want to be part of this family, so be it,” or is “No matter what, she’s my kid just like the rest of them and always will be”? Is it somewhere in between? Whatever that answer is, that’s your answer. If you fall in the “so be it” camp, disinherit her. If you’re a “no matter what” kind of gal, leave her an equal share. If you’re somewhere in the middle, give her a smaller share than the other kids. And if the other kids protest at your decision, tell 'em to suck it. If they want their sister to have a larger inheritance, they’re welcome to give her part of their share. If they want her cut out, tough shit.
Not sure what this means; So you don’t have anything to leave any of your kids but the proceeds of a life insurance policy?
What’s the point of leaving Mary out of the will then, if no one will get much of anything anyways?
ETA
Is it a huge insurance policy?
Are you actually just looking for a way to hurt Mary symbolically from beyond the grave? If so, fair enough (I guess) as she is your daughter, and you can interact with her as you see fit, but if you own nothing to leave to anyone, why bother “stiffing” Mary?
I don’t understand why so many people are saying, “Talk to a lawyer.” The question is NOT, “Can she disinherit the daughter legally?”, the question is whether she should do it or not, if it’s legally possible. The “could” question is for a lawyer, the “should” question is not.
As the the “should”, I don’t think any of us can answer that. I don’t think it should be automatically ruled out as an unconscionable act. I think it’s worth talking over with your other kids – perhaps they have more contact with her than you’re aware of. Or even if they’re not in contact with her at the moment, they may have some more insight as to why she’s behaving as she is.
What would I, personally, do? if she merely cut off contact, but didn’t have a history of being an asshole or a perpetual problem child, I wouldn’t cut her out altogether. Knowing as little as I do, I don’t feel comfortable offering more specific advice than that.
I saw something similar a few years ago. The parent really wanted to get in touch with the adult child, but the parent had a block against understanding the cause of the separation; understanding the reason the adult child had cut the parent off would mean admitting, if not guilt, at least the possibility of guilt (the parent had taken an action on the adult child’s behalf that was very protective and did not respect the child’s autonomy).
So I’ll tell you what I told the parent in that situation:
Reach out the child, through whatever means possible–e.g., through a friend of the kid. Ask the friend to pass along the message that you’d like to meet with the child and hear what’s going on, that the separation has been very difficult, and that you’ll listen and not argue, and that if the child needs the separation to be permanent you’ll respect that, but that you’re asking for the favor of one more meeting in a neutral place. Failing that, even a letter explaining the cause of the separation would be appreciated.
Kid may have something tough to tell you. Might be that she can’t see any way to relate to you as one adult to another, and so she’s ended the relationship, as she unwilling to be related to as a child. Might be something ugly in the past you never knew about. Might be an abusive and controlling boyfriend or husband.
I’d try reaching out humbly, and see what happens. And if it fails? Keep her in the will, IMO: she’s still your daughter.
But if she can’t, then the question becomes moot; my mother can leave me “3€ and the right to bid for the use of common land” without a disinheritance process; her mother cannot do the same to her own children (unless she disinherits them first, the children are entitled by law to a minimum of half grandma’s estate, divided evenly) - the two situations are completely different. If she can’t set up a trust (in Spain it’s not possible, I don’t know whether it is in Australia), then all the advice re. trusts becomes, again, moot. She needs to know what’s possible before she makes a decision, rather than run the risk of making a decision, then discovering that decision is not possible to follow through and having to go through that painful decision process again.
If she decides not to do it, the legal question becomes moot. She can decide not to do it and not spend any money at all on a lawyer, or she can decide that she wants to do it and then go spend some money to try making it happen.
You have the order of questions backward, unless you have money you can toss at a lawyer before you even decide if you need one or not.
From the point of view of a self-estranged child of my father, I can’t imagine getting an inheritance. Not only do I not expect one, I don’t want it!
Not in a Rot In Hell way, either. My dad isn’t a horrible guy. I just don’t like him. He never gave me any great reason to believe that he liked me very much either, so I don’t talk to him anymore. I don’t want his leftover money. I don’t want to be involved in any way when he dies.
I still talk to my uncles, so that’s going to be a weird event when it happens. I’m kind of obligated at that point. Way more weird if they go first, but I’m kind of obligated any which way the cards fall. The whole thing is just an impending period of suck.
Dangit, I just came back here and reread that post - it should say ‘wills shouldn’t be for beyond-the-grave reward or punishment’.
Also, seems to me that she needs to talk to a lawyer either way. If she wants to leave her daughter a share, then she needs to figure out the best way to work with the facts that the daughter may not be findable and may turn her share down. That would probably need a lawyer.
