Navigating Testamentary Disposition: The Power to Disinherit and the Importance of Consistently, Expressly, and Impliedly Excluding any Person you Wish to Disinherit in your Will. 

In the intricate world of estate planning, the power to disinherit is a crucial aspect of testamentary disposition.[i]Crafting a will requires careful consideration to ensure that your final wishes are not only legally sound but also clearly communicated.  Those wishes can change over time and it is up to you to hire a competent attorney to revise or rewrite your Will should your decisions and/or circumstances change in your life or in your family. In this blog post, we will explore the power to disinherit, emphasizing the significance of both express and implied exclusions as a general guide for questions you should ask an attorney helping navigating the complexities of will creation.  Remember, this is NOT legal advice and case law and statutes change frequently. This blog post is not legal advice and its content is NOT regularly updated.

Understanding Testamentary Disposition:

Testamentary disposition refers to the power an individual holds to distribute their property and assets after their death through a legally binding document known as a will (Last Will and Testament). This process allows for the thoughtful allocation of assets to beneficiaries, and equally important, the ability to disinherit certain individuals. Sometimes this disinheriting is preferred by the individual being disinherited. Sometimes disinheriting an individual is important due to a history of domestic violence, abuse, vulnerable adult abuse, alienation, disassociation with family, financial exploitation, or a host of other issues that are specific and personal to each individual.  The way you craft your legacy through your will is your decision and an experienced attorney puts his clients’ express needs and desires first so long as they are consistent with the law and the professional responsibilities of the lawyer. Attorney Ellis has helped clients in many different situations both in the creation of wills and probating estates address circumstances where disinheriting an individual was desirable.

The Power to Disinherit:

Disinheriting someone in a will is the act of intentionally excluding an individual from inheriting any portion of the testator's estate. The testator is the person whose will it was. The testators estate is what remains of the deceased’s property after they have hopefully lived a long life. While the Tennessee law recognizes the right to disinherit, it's crucial to approach this power with care. The use of clear and unambiguous language is essential to avoid legal disputes and ensure that your wishes are carried out as intended.[ii]

Express Disinheritance:

Express disinheritance involves explicitly stating in the will that a particular individual is intentionally being excluded from the inheritance. This can be accomplished through direct language such as "I hereby disinherit [individual's name] from my estate," leaving no room for ambiguity or misinterpretation.  Often terminology such as “for reasons I consider good and proper” is included in a will.  Often other terminology which creates more ambiguity is NOT advisable. You want this statement to be clear, direct, indicating discernment and intention and not wavering between whether to inherit or disinherit the individual.  Keep it simple, brief, clear and unambiguous and consistent with the rest of the will to the extent possible in the circumstances.

Implied Disinheritance Consistent with Express Disinheritance:

In addition to express disinheritance, implied disinheritance plays an important role in testamentary disposition. This occurs when a testator leaves the entirety of their estate to other entities and/or individuals, implicitly excluding others. By ensuring that all assets are accounted for and designated to specific beneficiaries, a testator can effectively disinherit individuals without explicitly naming them.  HOWEVER, if due to the express wishes of the client or other factors the Will seems to indicate contradictory intent, then Courts in Tennessee (as of the posting of this Blog Post) seek to construe the various clauses and sections consistent with each other so as to “if possible, to form one consistent whole.[iii]

Conversely, by the same logic, Tennessee Courts are supposed to only suppress a descriptive term or section of a Will if that term is plainly “out of harmony with the other parts.” However, this is something that Courts are not supposed to do as the “judicial leaning should be to the retention of every word.[iv]

The Importance of Express and Implied Inclusions:

Crafting a will involves striking a delicate balance between expressing clear disinheritance intentions and making necessary implied inclusions. To the extent approved by the client, it is generally suggested that leaving no room for ambiguity is crucial to avoid legal challenges, and the careful selection of language ensures that your wishes are accurately represented.

Considerations for a Comprehensive Will:

  1. Consultation with Legal Professionals:

   Seek guidance from experienced legal professionals licensed in Tennessee experienced in both probate and preparing essential estate planning documents like your Last Will and Testament to ensure your wishes are compatible with relevant case law, statute, and regulations.

  1. Thorough Asset Inventory:

   Compile a comprehensive list of your assets to facilitate both express and implied disinheritance.

  1. Clarity in Expression:

   Listen to your attorney’s advice regarding the use clear and unambiguous language to express your disinheritance intentions and ensure that all parties involved understand your wishes and save your estate from costly Will Contests, hearings, and disputes.

  1. Periodic Review:

   Regularly review and update your will with Attorney Daniel L. Ellis to accommodate changes in circumstances, relationships, or assets, maintaining the accuracy of your testamentary disposition. No one knows what tomorrow may bring – ensure your legacy is consistent with your wishes – schedule a confidential consultation by calling 865-235-1787 today. Be sure to leave a message. You can also use our Contact Form.

In conclusion, the power to disinherit is an integral aspect of testamentary disposition. By consistently using both express and implied inclusions in your will, you can effectively communicate your wishes and avoid potential legal complications. Remember, consulting with legal professionals ensures that your will is not only a reflection of your intent but also a legally binding document that stands up to scrutiny. Take the time to thoughtfully navigate the nuances of testamentary disposition with the Law Firm of Daniel L. Ellis, PLLC, and let us help you secure the future distribution of your estate in accordance with your desires.

[i] “The power to disinherit is part of the power of testamentary disposition." In re Estate of Eden, 99 S.W.3d at 92 (citing Bradford v. Leake, 137 S.W. 96, 98 (Tenn. 1911); In re Estate of Jackson, 793 S.W.2d 259, 261-62 (Tenn. Ct. App. 1990)).

[ii] "In order to disinherit an heir, a testator must prepare a will that disinherits the heir by express words or by necessary implication." In re Estate of Eden, 99 S.W.3d at 92 (citing McDonald, 205 S.W. at 314.)

[iii] See Wood v. Polk, 59 Tenn. (12 Heisk.) 220, 224 (Tenn. 1873) (reciting that "[i]t is a safe law in the construction of wills, that all the parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole.")

[iv] “McDonald v. Ledford, 140 Tenn. 471, 477-78, 205 S.W. 312, 314 (Tenn. 1918)..." In re McKinney, M2021-00703-COA-R3-CV (Tenn. App. Jun 09, 2022), and later McDonald at 205 S.W. at 315 (instructing that a court should "hesitate to thrust out of a will any part of the language of the testat[or]" and that "[t]o justify the suppression of a single descriptive term, that term must plainly be out of harmony with the other parts of the demonstration, after putting a reasonable construction upon the entire descriptive context, and 'the judicial leaning should be to the retention of every word.'" (quoting Evens v. Griscom, 42 N.J.L. 579, 594 (N.J. 1880)).” This in State and out of state persuasive authority has been adopted by the Tennessee Court of Appeals in In re McKinney, M2021-00703-COA-R3-CV (Tenn. App. Jun 09, 2022) as recently as 2022.