Does 'predeceased leaving no issue' really hold up when the child, age 13,is alive?

[Deb0514]

What is the name of your state (only U.S. law)? NV

I have a 13 year son with Asperger's and ADHD. His father, a NV resident, died a month ago, leaving no provision for his son. In fact, in his will, he stated, "I have one son, who has predeceased me leaving no issue". He then went on to designate his entire estate, including personally owned businesses to employees and his sister. He mentioned the above-mentioned phrase twice in the Will and further stated the Will is to expressly disinherit his son. He was not married and has no other children. We have a NY State Family court order for support and 90/10 pro rata share of medical expenses etc. in place since 1999. He was also unisurable as he was ill.
this will, by the way, was executed the night before he died.

What rights do I have as my sons representative to contest the validity of thie Will. Is this even legal to state your only son is predeceased..when in fact, he is very much alive, a minor with special needs, and leaves no provision in a multi-million dollar estate???

 

[nextwife]

Had he been legally established as dad? Did the will predate the paternity?

 

[TheGeekess]

Had he been legally established as dad? Did the will predate the paternity?

She said there were court orders established for support in 1999, so I would have to say yes, he was established as Dad.

 

[anteater]

Was the will prepared by an attorney (if you know)?

You really need to consult with a NV attorney to get a review of the will. Stating that the son is predeceased and then "...expressly disinherit[ing] his son" is odd.

The problem is, one way or another, that the will seems to state that he did not intend to leave any assets to his son. But the strange provisions that you cite might be grounds to argue that he was not competent to make a will.

 

[Deb0514]

that's a great point. yes, he uses the term 'predeceased' but two pages later states he 'expressly' disinherits his son. The issue really is odd...his family is jewish, money has been in their family for hundreds of years..my son was born out of wedlock, and i am a christian, raising my son as a Christian. That really is the reason for the disinheritance. And yes, he was hospitalized at the time he executed the 'new' will the eve of his passing. This was his third surgery in less than six weeks, and i understand he was on high doses of methadone for pain management for weeks prior to his passing. When i hire a NV attorney, will we be able to request the prior will and also, to request the medical records from the hospital to obtain what drugs were in his body when signing the will from his hospital bed?? with all the hippa laws in effect, not sure if we can. And yes, paternity was established in 1999.,his name appears as father on the birth certificate..the only child.

 

[nextwife]

...his family is jewish, money has been in their family for hundreds of years..my son was born out of wedlock, and i am a christian, raising my son as a Christian.

????

What does being Jewish have to do with money, unless you are reinforcing a stereotype. I hope you are teaching your child differently about his father's religious/cultural heritage. And even if his family DOES have money, it has nothing to do with being Jewish and does not belong in the same sentence as a discussion of his faith.

His families money isn't necessarily his money. Only his own money matters.

If he wasn't mentally competent when the will was done, it can be challenged. Additionally, you can make a claim against his estate on behalf of your son.

 

[FlyingRon]

Was there another son that died? If so, was the statement of "I have..." intended to describe all his issue, or just acknowledging the dead one.

 

[nextwife]

. . .his name appears as father on the birth certificate..the only child.

IN what state was the birth certificate issued? Without an Acknowledgment of Paternity or other legal action, being on the birth certificate does not legally establish paternity in all states.

 

[nextwife]

Was there another son that died? If so, was the statement of "I have..." intended to describe all his issue, or just acknowledging the dead one.

Good point. The child that predeased Dad may very well have been a different child. Mom may not know all of dad's life story.

 

[TrustUser]

wills (or trusts, for that matter), done at the last second, that disinherit some people, giving others to gain - it does not take a rocket scientist to suspect some leaking fuel.

 

[TheGeekess]

IN what state was the birth certificate issued? Without an Acknowledgment of Paternity or other legal action, being on the birth certificate does not legally establish paternity in all states.

From OP's first post:

We have a NY State Family court order for support and 90/10 pro rata share of medical expenses etc. in place since 1999.

 

[latigo]

If the will is admitted to probate and you as the guardian ad litem for your son seek to recover an intestate interest -

I think you are going to encounter an insurmountable hurdle with a specific Nevada statute, which provides that an omitted child can only share in the testator’s estate when it is found that the omission was unintentional. Otherwise when there is no provision made for a child there is a conclusive presumption in Nevada that the omission was intentional. *

Had the will left it with the testator’s assertion that the child was deceased, there is ample authority holding that the child would take an intestate share.

However the addition of the clause following which expressly disinherits the child, though incompatible in context, as it seems, is nevertheless a clear and unequivocal expression of the testator’s intention to omit.

In other words, in order for the court to find that the omission was “unintentional” under the Nevada statute, it would have to delete that entire clause from the will, and I don’t think you will find any recognized precedent that would permit it.

The rules of construction of wills do allow language to be disregarded when to do so removes patent ambiguity and clarifies testamentary intent. But there is nothing ambiguous about this particular wording. At least as you have related it.

_________________________

Anyway you need to present these question to your Nevada attorney, not asking total strangers about your child’s rights to such a sizeable estate.

Also the child may have claims against the estate arising out of the New York family court orders.

As far as the prospects of successfully overturning the will and throwing the estate into an intestate status, again you need to rely on your attorney’s advice. But the proximity of the signing of the will and the testator’s death alone will not supply sufficient legal grounds.

____________________

[*] Nevada Revised Statutes Chapter 33- Wills Section 133.170

“When the child of a testator or the issue of a deceased child of a testator is omitted from the testator’s will, it must be presumed that the omission was intentional. Should the court find that the omission was unintentional, the child, or the issue of the deceased child, is entitled to the same share in the estate of the testator as if the testator had died intestate.”

 

[anteater]

If the will is admitted to probate and you as the guardian ad litem for your son seek to recover an intestate interest -

I think you are going to encounter an insurmountable hurdle with a specific Nevada statute, which provides that an omitted child can only share in the testator’s estate when it is found that the omission was unintentional. Otherwise when there is no provision made for a child there is a conclusive presumption in Nevada that the omission was intentional. *

Had the will left it with the testator’s assertion that the child was deceased, there is ample authority holding that the child would take an intestate share.

However the addition of the clause following which expressly disinherits the child, though incompatible in context, as it seems, is nevertheless a clear and unequivocal expression of the testator’s intention to omit.

In other words, in order for the court to find that the omission was “unintentional” under the Nevada statute, it would have to delete that entire clause from the will, and I don’t think you will find any recognized precedent that would permit it.

The rules of construction of wills do allow language to be disregarded when to do so removes patent ambiguity and clarifies testamentary intent. But there is nothing ambiguous about this particular wording. At least as you have related it.

Could not have said it better myself, Lats! A likely slam dunk if the will had stopped at that "predeceased" part.

Still, the will, as described, has the smell of a "Cut and Paste by Committee at the Decedent's Bedside."

 

[TrustUser]

hi ant,

great minds think alike - LOL !!!

if i was the judge, i would disallow all last second wills and trusts that ended up disinheriting otherwise normal heirs, unless someone could provide some other substantial proof. and i did say SUBSTANTIAL.

why is it that the disinherited people are typically the ones that live far away, while the ones who gained are usually nearby ?

as the judge, all i have is a piece of paper. from that, there is no way that i can KNOW the real intentions of the testator.

that being the case, i need to go with percentages, and what is typical.

people do not disinherit natural heirs at the last moment. if that is the real intention, wills/trusts are made way beforehand, with those people disinherited.

a human being is much, much more apt to re-inherit someone in those last seconds, than they are to disinherit someone at the last second.

this current situation has so much leaking fuel that i told the rocket scientist to go home - he wasnt needed today. LOL.

obviously, i did not state a legal opinion. i was just demonstrating the weakness in our current system.

being that i am an analyst by trade, my instincts are to first understand the problem, and then try to fix it.

i would change the law, and require that a video of the disinheritance be made and recorded at the county recorder's office (but as a private document that could only be viewed by those in the need). which typically means a judge and any natural heirs.

now i at least know the date of the disinheritance, and can see how lucid the testator appears to be.

 

[curb1]

Key sentence: "he was hospitalized at the time he executed the 'new' will the eve of his passing".