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In re Estate of Dow: Son Omitted from Will Nonetheless Takes under NH’s Pretermitted Heir Statute (Part 2 of 2)

This is our second post in a two-part series on this case. Click here to review Part One.

By:  David Eby and Sydney Gillis

In In re Estate of Dow, the New Hampshire Supreme Court was asked to analyze whether the son of the late Marie Dow should be considered a “pretermitted heir,” such that he would take a portion of the estate, even though Ms. Dow’s will omitted him completely.

In New Hampshire, a pretermitted heir includes every child not named or referred to in the testator’s will, who is neither a devisee nor legatee (an identified recipient of part of the testator’s estate). RSA 551:10. These pretermitted heirs are entitled to the same portion of the testator’s estate as they would be if the testator had died without a will at all, unless they were intentionally omitted. The purpose of the statute is to prevent a mistake or unintended omission by the testator, so that parents do not unintentionally disinherit their own children.

In applying the New Hampshire pretermitted heir statute, the Court found that Ms. Dow’s son was in fact a pretermitted heir. This holding entitled him to receive a share of his mother’s estate, despite the fact that she left him out of her will entirely.

To reach its holding, the Court considered whether the son was mentioned in Ms. Dow’s will at all. It concluded that he was not, even though the argument was made that there may have been reference to his exclusion, as Ms. Dow specifically identified that she had a daughter-in-law. However, the Court found that any language surrounding the daughter-in-law of Ms. Dow was insufficient to show that the omission of Ms. Dow’s son was intentional.

The Court noted that Ms. Dow did not specifically list her son by name or state that she intentionally omitted to mention or give any of her property to him. While Ms. Dow included a provision in her will noting that she “intentionally omitted to mention, or to devise or bequeath or give anything…to any person…other than those mentioned”, the Court noted that this did not provide an adequate indirect reference to her son, or proof that Ms. Dow had her son in mind when drafting her will.

Interestingly, the New Hampshire pretermitted heir statute appears to be more forgiving to omitted heirs, and stricter toward testators, than statutes from other states. Like many states, in New Hampshire, a child born after the execution of a testator’s will may be considered a pretermitted heir.  And, as addressed in the Estate of Dow case, even a child born before will execution may qualify for pretermitted heir status.  In Massachusetts and Maine for example, the governing law applies only to heirs omitted from a will who are born or adopted after the execution of a testator’s will. Under the Massachusetts pretermitted heir statute, which had been previously followed by the lower court, Ms. Dow’s son was not a pretermitted heir, taking nothing.

If New Hampshire testators wish to exclude their children from taking under their will, they should express this desire as clearly as possible, referring to the intended, disinherited child by name.  Otherwise, the New Hampshire statute may allow such a child to take a sizeable portion of the estate.

Next Post >
In re Estate of Dow: N.H. Law Governs Will, Despite Express Language to the Contrary (Part 1 of 2)
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