It is very difficult for the testator to disinherit his/her infant child or disabled adult child
While the testator may feel no need to provide for an infant child or disabled adult child, the Court will rarely uphold the disinheritance.
When a lawsuit is commenced on behalf of an infant child or disabled adult child, the Court will look at whether or not the Will adequately provides for the child. If the child is financially in need and there is a legal obligation on the part of the testator towards the child, the obligation to provide for the child under the Will is heightened compared to other children.
In law, a parent must provide for his/her infant child. There are also ongoing legal obligations to support an adult child having a serious mental or physical disability. As a result, there would be few situations where an infant child or disabled adult child would be unable to challenge a Will. One exception would be where the estate is very small, and the needs of the spouse outweigh the size of the estate. Another exception is where a generous trust was set up by the testator for the benefit of the child.
In addition to the legal obligation to an infant child or disabled adult child, there is also the moral obligation owing to the child just like any adult independent children.
In summary, it is very difficult for the testator to disinherit his/her infant child or disabled adult child. The legal and moral obligations of the testator overtake any rationale provided by the testator for the disinheritance. In other words, testamentary autonomy is seldom allowed in these situations.
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