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September 3, 2013 > Legal Eyes: Accidental Disinheritance

Legal Eyes: Accidental Disinheritance

By Stephen F. Von Till

Q: A mother's Will "accidentally" disinherits her daughter. Mother's second husband inherits everything. Can daughter attack Will because of Mother's "mistake?"


A: No.

Children from a prior marriage can cause difficulties with inheritance. The Will must be carefully drafted. Otherwise, someone may be unexpectedly "disinherited."

Spouses often leave everything to the surviving spouse. They expect that the surviving spouse will provide an inheritance to the other's children from a prior marriage "when the time comes."

Unfortunately, that may not happen. After husband and wife are deceased, children of prior marriages may be "at each other's throats."

In the California case of Belva Smith, Belva made a handwritten Will. She left her estate to her daughter, India Rose.

She made another Will years later using a form that she bought. The form was undated and incomplete. But the form was signed with two witnesses. Belva died at age 83.

This second "form" Will provided that Husband was to inherit the entire estate if he survived Wife. If he did not survive Wife, then the estate provided a trust for her child.

The form contained the following: NOTICE TO THE PERSON WHO SIGNS THIS WILL. THIS FORM CONTAINS A TRUST FOR YOUR DESCENDANTS.

Unfortunately, while the Notice on the form was technically true, the Will only provided for the descendant (daughter) if the Husband did not outlive his wife. If he outlived her, the wording on the form gave him a full, unrestricted inheritance. There was no obligation for him to leave anything to Belva's daughter from her prior marriage.

Sure enough, that's what happened. Second husband Taylor outlived Belva. He claimed his full inheritance from her estate. No trust for Belva's daughter came into existence.

The second husband died shortly thereafter. His son, Charles, from a prior marriage claimed the entire estate.

With competing claims by India Rose versus Charles, the Court found in favor of Charles. Charles was awarded the entire estate. The form used by Belva did not accomplish what she thought and intended.

The decision was final. Although Belva loved her daughter, had a close relationship with her, and had no intention of disinheriting her, she misunderstood the legal effect of the form she used. Her daughter received nothing.

A Will may not be invalidated on a claim that the maker misunderstood. The language of the document controls the inheritance. If the legal rule were otherwise, "a great deal of uncertainty would be introduced," as noted by the Court. The outcome of estate distributions "would be significantly unsettled."

While "mistake" is not a basis to attack a Will, there are other ways to attack. These include fraud and undue influence on the maker of the Will.

THE LESSONS: Don't use a "form" that you buy. Careful drafting of a Will or Trust can assure that children of a prior marriage share the inheritance. One should discuss this issue with an experienced lawyer hired to draft the Will or Trust.

Making a handwritten Will or filling out a form is legal, but may have unintended consequences. The wording is critically important.

You would not do your own appendectomy although legal to do so. You would hire a surgeon. Why would you make a Will on your own without expert legal advice? Why risk the loss of all that you have worked for?

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