What is a Pretermitted Child?

A pretermitted heir describes a person who would likely stand to inherit under a Last Will and Testament, except that the person who wrote the Will did not know or did not know of the child at the time the Will was written. Many jurisdictions have enacted statutes that allow a pretermitted child to demand an inheritance under the Will

Florida’s probate code provides when a testator omits to provide by Will for any of his or her children born after making the Will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless it appears from the Will that the omission was intentional, or the testator had one or more children when the Will was executed and devised substantially all of his or her estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the Will. Fla.Stat. §732.302.

One court has stated that the purpose of the pretermitted child statute is to avoid an unintentional or inadvertent disinheritance of a child; accordingly, only children physically born or adopted after the execution of a Will are to be considered pretermitted children under the statute. See J.E.W. v. Estate of Doe, 443 So.2d 249 (Fla. 1st DCA 1983).

Can Adopted Children Be Pretermitted Heirs?

Many states, including Florida, have enacted probate codes that provide that when a testator omits to provide by Will for any of his or her children adopted after making the Will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless it appears from the Will that the omission was intentional; or the testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the Will.

An Interesting Case from Oklahoma

I recently read a very interesting appellate opinion out of Oklahoma where the court held that the express exclusion of one child does not prevent unmentioned children from taking as pretermitted children. In re Estate of Livsey, 183 P.3d 1038 (Okla.Civ.App.2008) presents a good example of the analysis involved in cases dealing with the issue of pretermitted children in the probate context. In this probate case, Billie Sue Coody, Carolyn Livsey, and Beatrice Livsey, the natural children of Louis T. Livsey, deceased (Decedent), filed a lawsuit in the probate court after their father’s death.
At issue was Article II of Decedent’s Last Will and Testament:

I hereby declare that I am divorced and have not remarried. I have one and only one child, a son named Larry Wayne Livsey. I have four living brothers and one living sister, namely Carl Livsey, Robert Livsey, Roy Livsey, Clarence Livsey and Estell Grecian.

Article IV of the Will stated as follows:

I specifically state that it is my intention to exclude my son, namely Larry Wayne Livsey, from taking anything under this my Last Will and Testament. Nor do I desire that any of my brothers or sisters take anything under this my Last Will and Testament.

Under Article III of the Will, Decedent bequeathed and devised his entire estate to his long-time friends, Daniel R. Wood, Special Administrator, and Daniel’s wife, Charlotte A. Wood.
The Administrator filed a petition for administration in the probate court setting forth that Decedent has six children. The children objected to the proposed distribution of the entire estate to Daniel Wood and his wife. The children argued that Decedent’s Will did not contain language evidencing his intent to exclude his five other unnamed children from inheriting; therefore, contestants were entitled to an intestate share of their father’s estate pursuant to Oklahoma’s probate code (similar to Florida’s probate code). The probate court disagreed with the children’s claim and ordered that the entire estate be distributed to Daniel Wood and his wife. The children appealed and the case worked its way through the state appellate court system.
The Oklahoma appeals court noted that it was undisputed that Decedent misrepresented the number of his children in his Will. It was likewise uncontroverted that Larry and Decedent’s siblings were specifically mentioned and excluded from inheriting, but nowhere in the Will were the five other children mentioned by class or individually. Contestants claim Decedent clearly knew how to disinherit some of his heirs, but chose not to utilize this same method to exclude his five other children from their inheritance rights; therefore, the Court found that Decedent’s omission of his five other children was obviously unintentional.

Daniel Wood and his wife argued that Decedent was quite estranged from his entire family and intended that no sibling or child inherit from his estate. Mr. and Mrs. Wood further argued that by stating “I have one and only one child” in his Will – even though this statement was incorrect – Decedent clearly and affirmatively stated his intent to exclude all his children, individually and as a class, from inheriting. Appellee further argues Decedent’s complete disposition of his estate to Appellee and Appellee’s wife, as provided in Article III, further evidenced Decedent’s intent to fully disinherit all of his children.

The Court then noted that the purpose of the pretermitted child statute in the state probate code is to protect an issue’s right to take unless the Will itself gives a clear expression of an intentional omission. The court then looked to state court precedent which had consistently held the determination as to whether the testator’s omission to provide for his child was intentional must be made from the four corners of the Will and such intent to disinherit must appear in strong and convincing language. To effectively exclude an heir, that heir must be mentioned in the Will either by name or class. Simply leaving the entire estate to others is not alone sufficient to show intent to omit a child.

After reviewing the record, the court held that Decedent’s Will did not contain the requisite strong and convincing language to evidence Decedent’s intent to exclude his other five children from inheriting. Decedent’s exclusive listing of only one of his six children without mentioning the other children by name or by class simply did not evince, in strong and convincing language, Decedent’s intent to disinherit his five other children. Therefore, the court held that because the children’s omission from Decedent’s will appeared to be unintentional, they were entitled to share in Decedent’s estate as if Decedent died intestate.

I have found in my practice that courts are reluctant to apply and interpret the law in a manner that results in an unnatural disposition of probate assets. This Oklahoma case is no exception.

Rule 4-1.8. Conflict of Interest; Prohibited and Other Transactions

(c) Gifts to Lawyer or Lawyer’s Family. A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this subdivision, related persons include a spouse, child, grandchild, parent, grandparent, or other relative with whom the lawyer or the client maintains a close, familial relationship.

This code provision was relied on in disciplinary proceedings against a lawyer in The Florida Bar vs. Anderson, 638 So.2d 29 (Fla. 1994). In October 1988, Anderson, a probate lawyer, undertook the representation of Mary Sisler. Between that time and Sisler’s death two years later, he prepared nine testamentary instruments, six of which named him or his wife as beneficiaries of Sisler’s estate. The Court found his conduct to be unprofessional even though Anderson did not intend that either he or his wife benefit from the bequests and even though he received no real benefit from any instrument he drafted for Sisler. The Court found, however, that Anderson was attempting, inartfully, to effectuate Sisler’s intent to shield the bequests from the creditors of the Palm Beach Festival, her intended beneficiary.

The Anderson decision and the Rule of Professional Responsibility upon which it is predicated, underscores the deep-rooted policy in Florida that a lawyer who drafts a will in which the attorney or a member of his family is a beneficiary raises the issue of undue influence that taints the entire will and may destroy the validity of other bequests as well. Florida law will not tolerate this conduct as it frustrates the intentions of a client who has entrusted the attorney with the responsibility of seeing that the estate is distributed according to the client’s wishes. Further, in the cases I have handled, I invariably find that the attorney’s credibility as a witness on testamentary capacity is impaired by the attorney’s personal interest in the outcome.

“The best solution to this problem of clerical overreaching is to treat all relationships between a testator and her spiritual advisor as per se confidential for purposes of the law of undue influence. Not only would such a solution recognize the enormous power of religious influence and thereby prevent undue leniency in the face of undue influence by mainstream clergyman, it would also guard against the temptation to assess the reasonableness of any religious or spiritual beliefs. The contestant would need to produce evidence only as to the category into which the alleged influencer fell (together with evidence of a “suspicious circumstance”); the inquiry would then turn, with the proponent having the burden of production, to the fundamental–and purely secular–issue of whether the will represented the testator’s own wishes.” 73 BROOKLYN LAW REVIEW 579 (2008).

The suspicion surrounding gifts made in eleventh hour wills to churches and religious institutions isn’t something new. In fact, the English common law and its courts have many dusty old books of legal opinions memorializing their concern that organized religion was taking advantage of the deathbed fears of the faithful for its own profit. These concerns are also evident in the passage of mortmain statutes. For example, Florida’s mortmain statute, before it was declared unconstitutional, prohibited any gift by will to a church when it was done less than six months prior to the person’s death.

A good illustration of why it is right to view religious influence as undue influence is found in the case of Hartley v. Toth (In re Estate of Hee), 252 So. 2d 846 (Fla. 3rd DCA 1971). The facts of Estate of Hee are summarized in the court’s opinion:

“Louis Hee was an elderly resident of Dade County, Florida prior to his death on May 21, 1969. He lived alone and had no immediate next of kin resident in Dade County, Florida. For some time prior to his death he had been in extreme ill health to the point of being confined to his bed a great deal of the time. He was primarily cared for by a friend, Stephen Bertok, who looked after his personal needs for some time prior to his death.” Id. at 846.

“[A] few months prior to the death of Mr. Hee, members of the religious sect known as Jehovah’s Witnesses called at the home of Mr. Hee to interest him in their literature and religious beliefs. Several return visits were made during which time other members of the religious sect also called upon Mr. Hee. Among these visitors were John Hartley, Jr. and William H. Payne, who are members or ministers of the Jehovah’s Witnesses. During these several weeks of visiting, Mr. Hee remained a member of the Christian Church of his faith and just before his death attended his church on Easter Sunday for Easter Sunday services. He was never a member of the religious sect known as Jehovah’s Witnesses or in any manner connected with the Watch Tower Bible and Tract Society, a Pennsylvania Corporation.” Id. at 846.

“Mr. Hartley had sought the services of A. C. Lowery, Esquire, an attorney at law of this city who was an attorney for the Watch Tower Bible and Tract Society to go to the home of Mr. Hee to have a will prepared by him and that it had to be done immediately. Upon Mr. Lowery advising him that he could not immediately take care of the matter, Mr. Hartley then proceeded to prepare a will for Mr. Hee’s signature. In company with William H. Payne and Lillie Mae Payne, who were also members of Jehovah’s Witnesses, the three of them proceeded to the home of Mr. Hee where they obtained his execution of the alleged last will and testament…in which will Mr. Hartley and W. Harold Payne were named as Co-Executors and the Watch Tower Bible and Tract Society of Pennsylvania was made the sole beneficiary of the will. The will also directed that the funeral services of the testator were to be conducted by a minister of Jehovah’s Witnesses under the direction of the Watch Tower Bible and Tract Society of Pennsylvania. No provision was made for the church of which he was a member, or for any services by the minister of his own church in any manner whatsoever.” Id. at 846.

“Immediately after the execution of the will, the named executor who had prepared and obtained the execution of the will immediately forwarded the original of the will to the main office of the Watch Tower Bible and Tract Society of Pennsylvania at 124 Columbia Heights, Brooklyn, New York, where it remained in the hands of officials of that corporation until the decedent’s death some seventy-five (75) days later.” Id. at 846.

“No copy of the will was left with the testator. The decedent’s closest friends and minister had no knowledge of the execution of a last will and testament and no disclosure of its existence was made until after the death of Mr. Hee.” Id. at 846.

Under these circumstances, the Miami Dade County probate court judge found that:
• Mr. Hee’s last will and testament was unnatural in its content and disposition;
• The will was procured and prepared by the sole beneficiary-the Watch Tower Bible (either individually or by its agents, officers or members).
• The Watch Tower Bible members were the sole witnesses to the execution of the will.
• Mr. Hee’s will was kept in the possession of the Watch Tower Bible members without disclosure to anyone.

As I have written in prior blogs, the presence of the above factors creates a presumption of undue influence. Where the presumption arises, the burden is upon the proponent of the will to show by preponderance of the evidence that the will was in truth and fact the free and voluntary act of the testator and expressed his wish and desires and was not the instrument of undue influence, overreaching or coercion. In the Estate of Hee, the Court had no difficulty concluding that there was a complete failure on the part of the proponent of the will to carry this burden of proof, and therefore the will proffered by the Watch Tower Bible members was declared invalid as the result of undue influence.

Elderly persons in Florida are vulnerable and exposed too many scams. Unfortunately, they are not exempt from fraudulent fleecing by religious organizations. I was involved in a case where a nationally known charity engaged in approximately twenty seven forms of communication until an elderly lady, who had no prior significant history of charitable giving, excluded her son and left her estate to the charity. The drafting attorney of the will was referred to the 92 year old lady by the charity. This and other similar incidents should remind us to remain mindful of the careful scrutiny that must be given to any gift by a person susceptible to undue influence, even religious influence. This suspicion should not be suspended merely because it requires us to examine a gift by an elderly person to a church, synagogue or a television evangelist.

Earlier I noted that many will contests center on an elderly Floridian suffering from the infirmities of age and the ingestion of prescription drugs to combat their mental deterioration caused by the progression of the many forms of dementia. Equally important are challenges to the testamentary capacity of a person making a will in Florida where that person is a drug addict and/or suffers from alcoholism.

First, simply because the person making the will is an addict or has a drinking problem does not automatically render any will that the person executes invalid as a matter of law. The rule was stated long ago in a Florida Supreme Court opinion:

“The rule appears well settled that if a testator is cognizant of the nature and extent of his property, the proper objects of his bounty, and the nature of the testamentary act at the time he executes his will, the fact that he is habitually intoxicated or uses alcohol frequently, or has even been declared an habitual drunkard does not necessarily deprive him of testamentary capacity. A like rule applies as to testamentary capacity where the ravages of disease combine with the effects of alcohol to affect the testator. One may be a physical wreck and may suffer from Bright’s disease, the use of narcotics, drugs, or insomnia, and still have testamentary capacity.” Fermstrom v. Taylor, 107 Fla. 490, 145 So. 208 (Fla. 1933).

Rather, the cases I accept and prosecute attempt to answer the inquiry into whether or not, and to what extent, the person making the will had sufficient capacity to make a will at the time it was executed.

Sometimes, the conclusion that the person was incapacitated at the time the will was executed is an easy conclusion to make where there is evidence discovered during the case indicating that the drug and/or alcohol abuse had progressed to the point where it caused permanent impairment. This evidence usually finds its basis in the decedent’s medical records and is then expanded on at trial by a medical expert or toxicologist.

In other cases, the will may be invalidated by showing evidence that the person making the will was under the influence of alcohol or drugs at the time the will was executed. I have seen cases which were successfully developed through locating and interviewing witnesses who could testify to the person’s bizarre behavior and the extent of the person’s problem-bartenders, employers, liquor store owners, and neighbors are all potential witnesses to this critical issue.
A recent Florida case illustrates the type of evidence that will invalidate a will. In Miami Rescue Mission v. Roberts, 943 So.2d 274 (Fla. 3d DCA 2006) the court of appeals affirmed the probate court’s invalidation of a will offered for probate where there was evidence that the will was executed at a time when the testatrix was hospitalized with severe pain and under the influence of very strong medication. The following day she passed away. The effect of Mrs. Manucy’s 2005 will was to disinherit her longtime caregiver and friend, Fair Ellen Roberts and, instead, leave her residuary estate to four charities, in equal shares. Other evidence included testimony that the testatrix developed delusions that Roberts had abandoned her, “let her dog die,” and was stealing from her.

Roberts used the testimony of medical professional at trial to assist the court in understanding how the medication given to the testatrix affected her in the days leading up to her passing. The evidence at trial also included testimony of how the personality of the testatrix completely changed in the period of time leading up to the will execution. This evidence was corroborated by testimony that the testatrix failed to recognize Ms. Roberts and instead, referred to her by her daughter’s name.

Even though there was plenty of evidence presented at trial that the testatrix was found to be alert by the nurses treating her throughout her hospitalization, these observations and classifications by the nurses were challenged and disagreed to by the medical professionals who testified on behalf of Ms. Roberts. One of the physicians testified that certain forms of delirium are often mistaken as cooperativeness in a patient. “Further, a nurse’s observation that a patient is alert does not equate to a legal finding that the patient possesses testamentary capacity.”