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How to Overcome the “Negative Will”

Written by on Apr 13, 2009| Posted in: Probate Litigation

Can disinherited heirs still take inheritance by intestacy?Sometimes a testator leaves a last will that expresses his or her intent to disinherit an heir. These wills are described under the common law, and some states’ statutes, as “negative wills.” Sometimes, the law allows a relative or heir disinherited under the negative will to nevertheless share in property that the testator failed to devised to another and as to which he or she died intestate. See In re Levy’s Estate, 196 So.2d 225 (Fla 3d DCA 1967).

The Uniform Probate Code addresses the issue and provides that a decedent through a last will and testament may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession, and if that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his or her intestate share. Uniform Probate Code ยง2-101(b). Stated more plainly, if you really want to exclude a person and every descendent, relative and heir of that excluded person, you need to make it crystal clear in the last will and testament.

Thus, there is different treatment under the model probate code promoted by the UPC and the existing common law of many jurisdictions in the treatment of disinherited heirs, intestate distribution, and negative wills. Because of the great variance in the law’s treatment of these tricky situations, it is a good idea to follow the decisions of our sister states in order to predict how the law might progress in its treatment of this unique situation. Once such case was recently published by the Supreme Court of North Dakota in In re Estate of Samuelson, 757 N.W.2d 44 (N.D. 2008).

Estate of Samuleson involved the Last Will and Testament of Ernest Samuelson. Paragraph IV stated: “I give, devise, and bequeath all the rest, residue and remainder of my estate to my mother, Hulda Samuelson.” Paragraph V provided: “I have intentionally failed to provide for my half sister, Eleanor West.”

Ernest Samuelson died on August 12, 2005. He never married and did not have children. His mother, Hulda Samuelson, father, Harry Samuelson, and sister, Eleanor West, all predeceased him. Eleanor West’s two granddaughters, Amanda West and Robin West, survived Ernest Samuelson.

Following the commencing of probate proceedings, Amanda West and Robin West asserted that Ernest Samuelson died intestate; therefore, they were entitled to the residue of Ernest Samuelson’s estate, through intestacy law.

The case worked its way to the state’s highest court and was presented with the issue of whether Ernest Samuelson’s clear and unambiguous intent to exclude Eleanor West, as expressed in his last will and testament, also precludes Eleanor West’s heirs from inheritance. The Supreme Court observed that in paragraph IV of his last will, Ernest Samuelson gave the residue of his estate to his mother, Hulda Samuelson. However, Hulda Samuelson predeceased him. Ernest Samuelson did not include a provision in his will governing the event in which his mother predeceased him. “We have not found, and the parties have not brought to our attention, case law discussing whether a testator who excludes an individual by will, needs to specify whether that exclusion applies to only testate distribution, or both testate and intestate distribution.”

Next, the Court observed that Ernest Samuelson excluded Eleanor West specifically by name and relationship. He did not expressly exclude Eleanor West’s heirs, either individually or by class, and the Court was unwilling to infer Ernest Samuelson intended to exclude Eleanor West’s heirs.

The Court then looked to the official comment to section 2-101 of the 1990 Uniform Probate Code, which provides an example comparable to the issue in this case. The example provides: “G died partially intestate. G is survived by brother [H], [H’s] 3 children (X, Y, and Z), and the child (V), of a deceased sister. G’s will excluded [H] from sharing in G’s intestate estate. The example explains V takes one-half of G’s intestate estate, and X, Y, and Z split one-half. The comment provides if H would not have been excluded in G’s will, he would have taken one-half of G’s intestate estate. But, since G excluded H, H’s share, which was one-half of G’s estate, passed to H’s descendants via representation, as though H disclaimed his intestate share. The court then concluded, using the same logic as the UPC’s example that since Ernest Samuelson excluded Eleanor West, the share she would have received had she not been excluded, that being the remainder of Ernest Samuelson’s estate, passes to Eleanor West’s heirs, Amanda West and Robin West. Therefore, Amanda West and Robin West qualify to take the residue of Ernest Samuelson’s estate.

This fascinating case presents a great example of the complicated issues faced by both probate lawyers and lawyers who prepare wills.

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