Published in the Union Leader
Q: My father recently died, and I discovered that he left me out of his Will. My mother passed several years ago and my brother, Steve, is the executor. The Will leaves everything to Steve and my father’s church. Steve told me that there is nothing he can do to include me. Is there anything I can do?
A: Assuming your father’s Will is valid, the answer likely depends upon its language. In New Hampshire, parents can (and do) disinherit children. However, the law assumes that unless there is evidence in the Will itself that the omission was intentional, failure to provide for children is the result of inadvertence or mistake.
For example, Calvin Coolidge, our 30th president, famous for his economy of words, successfully disinherited his son John in a twenty-three word Will. “Silent Cal’s” Will read, “Not unmindful of my son John, I give all my estate, both real and personal, to my wife, Grace Coolidge, in fee simple.” By mentioning John, he was demonstrating that he did not forget to provide for him - just that he chose not to. Had it simply said, “I give all my estate, both real and personal, to my wife, Grace Coolidge, in fee simple,” the outcome would have likely been different.
Generally, if a child is not named or referred to in a Will, he is a “pretermitted heir” and may be entitled to a share of the estate. Just how much is determined by the laws of intestacy: the pretermitted heir is entitled to the same share he or she would have received if the parent had died without a Will. The share is calculated by the court based on a complicated formula driven by the number and class of other surviving heirs. Depending upon family circumstances, the share for a pretermitted heir, particularly a child of the deceased, may be substantial.
Whether a testator “intentionally” omitted, a child in a Will is often a matter of interpretation by the court. A general or even indirect reference in a Will such as “children,” “issue,” or “legal heirs” should be enough to preclude you. You should consider consulting with an attorney to review the language of your father’s Will to determine if the pretermitted heir statute may apply and if so, to help you petition the probate court to obtain your share of the estate.
Christopher Paul can be reached at [email protected].
Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
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