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Will From Previous Marriage - Please Help?

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kire

Registered User
What is the name of your state?CA

Father passed and left will from previous marriage(mother prior wife deceased). Will leaves estate to my brother and I...however, he has re-married an adopted. The will was never updated...he left 2 businesses, property, liquid assets, stocks etc.

what does Article 7 state and what does this mean when considering the factors...?
article 7:

I have with knowledge, intentionally omitted to provide for my heirs not specifically mentioned in this will, and hereby generally and specifically disinherit each, any all persons claiming to be my heir, or who may lawfully be determined to be my heir, by marriage or otherwise; and should any person obkect to the probate of this will or in any wy contest this will, or any provisions of this will, I hearby bequeath to that person the sum of One Dollar from my estate and such person shall take nothing more wheter under provisions of this will or otherwise.

Please Help?
 


BelizeBreeze

Senior Member
kire said:
What is the name of your state?CA

Father passed and left will from previous marriage(mother prior wife deceased). Will leaves estate to my brother and I...however, he has re-married an adopted. The will was never updated...he left 2 businesses, property, liquid assets, stocks etc.

what does Article 7 state and what does this mean when considering the factors...?
article 7:

I have with knowledge, intentionally omitted to provide for my heirs not specifically mentioned in this will, and hereby generally and specifically disinherit each, any all persons claiming to be my heir, or who may lawfully be determined to be my heir, by marriage or otherwise; and should any person obkect to the probate of this will or in any wy contest this will, or any provisions of this will, I hearby bequeath to that person the sum of One Dollar from my estate and such person shall take nothing more wheter under provisions of this will or otherwise.

Please Help?
Please wait for IAAL who practices law in L.A. to answer definatively. However, from what you have posted here, it seems your father was a very sharp old geezer.

Div. 1 - WillsCh. 4 - Revocation of Wills - 1994 - p. PAGE 1
CHAPTER 4


§401. Marriage After Making Will: Will Revoked as to Spouse. If a testator marries after making a will, and the spouse of that marriage survives the testator, the will is revoked as to such spouse, unless provision has been made for such spouse by marriage contract, or unless such spouse is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the
presumption of revocation can be received.


Your father either planned for such an eventuality or had a very shrewd attorney.

The purpose of §401 is to protect the widow or widower of a testator who made his or her will before the marriage; see In re Poisl's Estate (1955), 44 C.2d 147, 280 P.2d 789, wherein the court held that the purpose of the similar California statute was to secure a specific moral influence on the
testamentary act of having in mind a contingent event as momentous as marriage. Although perhaps confusing at first reading, §401 operates as follows:

Assume that W makes a will in which her entire estate is bequeathed to X; then W marries H; then W dies. By the operation of §401, W's will is revoked as to H, so that H takes from W's estate under the law of succession and X takes the balance (if any) under W's will.

However, if W and H had entered into a marriage contract by the terms of which H would be provided for in the event of W's death; or if W's will provided some bequest for H; or if W's will showed an intention not to make a provision for H; then §401 would not apply -- i.e., the will would not be revoked as to H, and its provisions would govern.

An excellent summary of the various types of will provisions which “...show an intention not to make ... provision...” for the surviving spouse is set forth in the discussion following §70 of the California Probate Code in West's Annotated California Codes. Also see Comments to §§403 and 405, infra.
 

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