Rights of descendants intentionally omitted from a will

While spouses are protected when intentionally omitted from a will through the elective share, children are not (except in Louisiana)

That said, testators invite challenges to their estate plan when they omit children (unless the estate goes to the child’s surviving parent), and juries and judges tend to be sympathetic to the children (p. 520)

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Protection of descendants inadvertently omitted from the will

While testators are permitted to deny their children a bequest, the law also protects their children from being left out of the will unintentionally Usually, the statutes apply to children born

or adopted after execution of the will Sometimes, though, they also apply to

children alive when the will is executed When is an omission considered

intentional and when is it considered unintentional?

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Gray v. Gray

John

Robert

Gray v. Gray 947 So. 2d 1045 (Ala. 2006), p.528

MaryRose

Monica Jack

1981 1984 1989 2004

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What was the effect of John’s will after he died?

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Was the omission of Jack unintentional under Alabama law?

What’s wrong with viewing Jack’s situation as an (a) (2) situation?

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Would Jack take under the 1990 UPC?

What would have been a better way for the court to reach the result it reached under Alabama law and which was probably the correct result?

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Note 3, p. 532

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Pretermitted child(1969 UPC)

a) If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:1) It appears from the will that the omission was

intentional;2) When the will was executed the testator had one or

more children and devised substantially all his estate to the other parent of the omitted child; or

3) The testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven. . . .

Ala. Code in Gray (pages 528-529)Ind. Code § 29-1-3-8 (a) follows 1969 UPC through (a)(2)

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Pretermitted child(1990 UPC, § 2-302(a)(1))

Except as provided in subsection (b), if a testator fails to provide in his [or her] will for any of his [or her] children born or adopted after the execution of the will, the omitted after-born or after-adopted child receives a share in the estate as follows:1) If the testator had no child living when he [or

she] executed the will, an omitted after-born or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will.

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Pretermitted child(1990 UPC, § 2-302(a)(2))

Except as provided in subsection (b), if a testator fails to provide in his [or her] will for any of his [or her] children born or adopted after the execution of the will, the omitted after-born or after-adopted child receives a share in the estate as follows:2) If the testator had one or more children living

when he [or she] executed the will, and the will [made a bequest] to one or more of the then-living children, an omitted after-born or after-adopted child is entitled to share in the testator’s estate as follows:

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Pretermitted child(1969 UPC)

a) If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:1) It appears from the will that the omission was

intentional;2) When the will was executed the testator had one or

more children and devised substantially all his estate to the other parent of the omitted child; or

3) The testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven. . . .

Ala. Code in Gray (pages 528-529)Ind. Code § 29-1-3-8 (a) follows 1969 UPC through (a)(2)

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Pretermitted child(1969 UPC)

a) If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:1) It appears from the will that the omission was

intentional;2) When the will was executed the testator had one or

more children and devised substantially all his estate to the other parent of the omitted child; or

3) The testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven. . . .

Ala. Code in Gray (pages 528-529)Ind. Code § 29-1-3-8 (a) follows 1969 UPC through (a)(2)

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Will of Calvin Coolidge“The White House”

WashingtonWill of Calvin Coolidge of Northampton,

Hampshire County, Massachusetts

Not unmindful of my son John, I give all my estate both real and personal to my wife Grace Coolidge, in fee simple – Home at Washington, District of Columbia this twentieth day December, A.D. nineteen hundred and twenty six.

/s/ Calvin Coolidge____

Signed by me on the date above in the presence of the testator and of each other as witnesses to said will and the signature thereof.

/s/ Everett Sanders___ /s/ Edward T. Clark___ /s/ Erwin C. Geiser___

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