A “LegalZoom Will” failed to mention the family members of the testator on their form. Look what happens when you fail to name a child in your will…

In the modern age of online sources, clients typically do research before they talk to lawyers. They come to us with many questions that shows they have done some preliminary research on the issues related to estate planning. Many clients have previous experience with estate administration – probating a will or serving as a Power of Attorney for a sibling or a parent.

This is generally good and helps us facilitate family discussions about the issues pertaining to passing along their estate assets to their designated beneficiaries. It crosses a line, however, when people get emboldened by their knowledge and fail to consult the experts. These are the professionals who have spent thousands of hours representing clients in numerous legal matters.

The LegalZoom products offer clients the option to do their own will and save some money in the long run, which seems appealing to some at first. But what if taking the easy way out means what you want relative to the passing of your hard-earned wealth doesn’t happen as you intend? What if instead it creates controversy that disrupts your family?

Introducing the pretermitted heir…

What is that exactly? And why is it important? The New Hampshire Pretermitted Heir Statute RSA 551:10 essentially creates a conclusive presumption that the failure to name a child in a will, even if the child is not to inherit anything under the will, is accidental or unintended by the testator. Therefore, the child takes as though there was no will.

“The purpose of this section is to prevent a mistake or unintended failure by the testator or testatrix to remember the natural object of their bounty.” – In Re Estate of Came (1987)

So, what would happen in the case of a testator leaving everything to her granddaughter and failing to mention that she had three children who were not named or designated to take anything under the will? The omission or failure to mention her children would be deemed an inadvertent omission and the child (in this case the three children) would inherit as though there were no will. The granddaughter who was expecting the inheritance from conversations with her grandmother and knowledge of what was in the will won’t receive anything. Rather, it went to her aunt and uncles instead. The reason? The will did not acknowledge the existence of the three adult children in the LegalZoom will! And the solution is simple…

“Mere mention of or reference in a will to a child is all that this section requires to preclude its application.” – In Re Estate of Osgood (1982)

All wills should have a “biography” section that simply outlines who the family members are and whether you are going to leave a bequest to them or not. In the above case, if the grandmother had merely mentioned her three adult children in a section outlining all her family members and distributed her assets to the granddaughter in another section of the will (without mentioning her children) the grandchild would have inherited and the dispositional wishes of the grandmother would have been realized. Instead, because of the reliance on an improper form and the lack of expert consultation the matter lives on… in court!