Contesting a will in Texas

What is a pretermitted child

A pretermitted child is a child who is:

  1. born or adopted after a parent’s will is executed, and
  2. who is not otherwise provide for by the parent.

Inheritance involving a pretermitted child

A pretermitted child takes a share of his parent’s estate even though he is not mentioned in the will.

What does “not otherwise provided for mean?”

A recent inheritance case out of Dallas dealt with both of the issues above. A man made a will leaving his estate to his brother and to his brother’s children. He later married, had two children and divorced. After he was divorced, he wrote a note on the bottom of his original will that said in its entirety  “9/9/99 I am now divorced from Melissa McCormick & Virginia Dillon. The same will and testament exists now as on 4/30/99 Charles Hendler.”

The divorced wife alleged that her children were entitled to share in the estate because they were pretermitted children since the original will was made before they were born and they were not otherwise provide for. The brother alleged that he was entitled to all of the estate because the addition of the quoted note republished the will so that the will was not made before the children were born. He also alleged that the children were provided for since they were minors and were getting social security, were receiving court ordered child support and since one was listed as a contingent beneficiary on a life insurance policy. The trial court ruled in favor of the brother and denied the children any inheritance.

The appeals court reversed part of the trial court’s decision. It held that there was a fact issue that a jury should decide as to whether the note on the bottom of the old will was done with testamentary intent. Testamentary intent is required to make a will or to republish one. The appeals court went on to hold that receiving social security benefits or child support did not conclusively prove that the children were “otherwise provided for” by the parent. The court noted that “otherwise provided for” has to be intended to take effect at the testator’s death. The court however was convinced that naming one of the children as a contingent beneficiary in a life insurance policy did satisfy the otherwise provided for requirement and the court held that the child so named was not a pretermitted child and therefore not entitled to any inheritance. 316 S.W.3d 703.

In another case, the court held that even though the child was a pretermitted child, he was not entitled to a share of the decedent’s estate because he was provided for in the decedent’s will. The will directed that the decedent’s estate go to his “heirs at law” if his wife failed to survive him; the child was an heir at law, but because the decedent’s wife survived him, the child was barred from sharing in the decedent’s estate. 319 S.W.3d 185.

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