Testator’s valid will left his entire estate to his wife but if she
did not survive him, to his heirs at law. Testator had two non-marital
children who claimed they were entitled to his estate as pretermitted
children under Probate Code § 67. Son One claimed that although he was
born twelve years before Testator executed the will, he was nonetheless
pretermitted because Testator was not adjudicated as his father until
one year after he executed his will. Son Two claimed he was pretermitted
because he was born after Testator executed the will and is not provided
for even though the contingent beneficiary of the will was Testator’s
“heirs at law.” The trial court granted summary judgment in favor of
both children.
The appellate court reversed. With regard to Son One, the court rejected
the argument that he was “constructively born” after will execution
because Testator was not adjudicated as his father until after he
executed his will. Instead, once a adjudication of paternity occurs, Son
is treated as being Testator’s child from the moment of child’s birth
which was twelve years prior to will execution.
The court began its analysis of Son Two’s case by recognizing that Son
Two was a pretermitted child because he was born many years after
Testator executed his will. However, Son Two was mentioned or otherwise
provided for in Testator’s will and thus not entitled to a pretermitted
child’s share. The contingent class gift to Testator’s “heirs at law”
encompassed Son Two as Son Two would have been one of Testator’s heirs
had Testator’s wife not survived. The court also explained that even if
Son Two was not included in this class gift, he would still not be
entitled to share in Testator’s estate because he would be limited to
sharing in the contingent gift to Son One as a heir at law. Because
Testator’s wife survived, Son One received nothing and thus Son Two
would receive nothing as well.
Moral: If a testator wishes to prevent his or her intended property
disposition from being attacked by children alleging to be pretermitted,
the testator should include an express provision in the will such as, “I
intentionally make no provision for any pretermitted child and I intend
that pretermitted children receive nothing from my estate either under
this will or by intestacy.”