Will Falsely States that the Decedent Had No Children

State:NC

My father passed away a little over a month ago.He had a will that I finally got to see after it was filed at the court house because his wife would not let me see it.

My father is not on my birth certificate and we did not meet until I was 15 years old.We have had a relationship for the past 17 years,although a bit rocky here and there.He never denied me,all his family knows Im his child as well as his friends.I am listed in the obit as his child,as well as my kids as grandchildren since i insisted on going to the funeral home.

Well the will left everything to his wife,or everything to 2 of his 3 stepkids if the wife died first.He made the will at the end of '06.

The kicker is in his will it states..."My spouse is____.I have no children."
Of course I am devastated.He didnt want to leave me anything thats fine but he didnt have to act as if I dont exist.

Im also very shocked because he always told me that most of his property would some day be mine.He was diagnosed with lung cancer in Jan.and it had already spread through out his bones.

I was hoping if someone knew if there was any legal action I could take.He lied in his will,does this make it invalid?

Ive also read that if a parent doesnt want a child to recieve anything he must state that in the will,not just lie and say he has no children.Is this true?

You're actually probably better off that way than if he had specifically identified you and left either a token request or intentionally disinherited you. Consult an estate lawyer to see what rights you have in North Carolina as a "pretermitted heir".

I will.Thank you for responding.:)

Aaron, how would this apply. A pretermitted heir is one the decedant did not know about or that was born after the will was made. Here the OP claims the decedant knew about him. Since the will clearly left everything to the wife I fail to see how the OP has a claim.

from:http://legal-dictionary.thefreedicti...ermitted+heirs

pretermitted heir n. the child of a person who has written a will in which the child is not left anything and is not mentioned at all. After the death of the parent, a pretermitted heir has the right to demand the share he/she would have received as an heir under the laws of distribution and descent. The reasoning is that the parent either inadvertently forgot the child or incorrectly believed the child was dead, and did not mean to leave him/her out. Thus, if someone wishes to disinherit a child or omit him/her from his/her will, that parent should specifically state in the will: "I leave nothing to my son, Gordon," with or without stating a reason. Otherwise there may be unfair and unintended results. Example: Tommy Testator has three children, gives two of them $10,000 each, and the remainder (which turns out to be a million dollars) to set up a scholarship fund for orphans. His omitted child, who has not spoken to him for 20 years, is a pretermitted heir entitled to one-third of the estate, and will receive $340,000 compared to his siblings specified $10,000 each. (See:

Thanks for the defination jk.I tried to find it earlier but couldnt find a definition that was clear like that,they were all in legal jargin which left me wondering its exact meaning.


Thank you again!

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Quoting lwpat

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Aaron, how would this apply. A pretermitted heir is one the decedant did not know about or that was born after the will was made. Here the OP claims the decedant knew about him. Since the will clearly left everything to the wife I fail to see how the OP has a claim.

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I was wondering this also. A pretermitted heir is a term used in the law of property to describe a person who would likely stand to inherit under a will, except that the testator (the person who wrote the will) did not know or did not know of the party at the time the will was written. The most common category of pretermitted heir is the pretermitted child, born after the execution of the will. **If the court determines that an heir was accidentally omitted**, that heir is entitled to receive the same share of the estate as she/he would have if the deceased had died without a will.
Also a will may contain a clause which explicitly disinherits any heirs unknown at the time that the will is executed, or any heirs not named in the will.
re jk's definition re:"The reasoning is that the parent either inadvertently forgot the child or incorrectly believed the child was dead, and did not mean to leave him/her out." I don't think he inadvertently left him out since he said he had no children + he knew about the child & I don't think he assumed he was dead since they have had contact.
Original Poster can get a lawyer though & they can see what the court decides - if the court decides he was accidentally left out or not.

Many (but not all) states have statutes which define who can make a claim as a pretermitted heir, and of course the definitiion can be modified by statute. jk's definition of "pretermitted heir" is broadly correct, and in many states (e.g., Arkansas Code § 28-39-407(b)) you don't have to be born after the will is drafted or be unknown by the testator to be "pretermitted". I have not yet found North Carolina statutes or case law describing how that state would resolve this situation.

Normally though it has to be proven that the pretermitted heir was accidentally left out - not left out on purpose. It certainly helps though if they put in the will that no assets are to go to this heir or just leave them a small amt. There could very well be some court cases though where the pretermitted heir inherits no matter what - courts that include them to receive assets if no mention was made of them. They may believe if no mention made one way or another - they should inherit. However, I don't think that is the norm. The OP should prob. go ahead & seek counsel - it sure won't hurt.

I know you don't have to be born after the will made or unknown though many/most times this is the case. It just have to be proven that the person making the will accidentally left them out. Though like I said some courts maybe not being absolutely sure of deceased's intentions will let the pretermitted heir inherit.

Certainly it is sensible for somebody who wishes to disinherit a particular heir to specify that, or to leave a nominal request. The thing about leaving somebody completely out is that it suggests inadvertence or oversight.

The easiest way for a child not mentioned in a will to claim against the estate is when they are born or adopted after the will is drafted. I believe every state provides for that possibility.

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Quoting forgottenone

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State:NC

My father passed away a little over a month ago.He had a will that I finally got to see after it was filed at the court house because his wife would not let me see it.

My father is not on my birth certificate and we did not meet until I was 15 years old.We have had a relationship for the past 17 years,although a bit rocky here and there.He never denied me,all his family knows Im his child as well as his friends.I am listed in the obit as his child,as well as my kids as grandchildren since i insisted on going to the funeral home.

Well the will left everything to his wife,or everything to 2 of his 3 stepkids if the wife died first.He made the will at the end of '06.

The kicker is in his will it states..."My spouse is____.I have no children."
Of course I am devastated.He didnt want to leave me anything thats fine but he didnt have to act as if I dont exist.

Im also very shocked because he always told me that most of his property would some day be mine.He was diagnosed with lung cancer in Jan.and it had already spread through out his bones.

I was hoping if someone knew if there was any legal action I could take.He lied in his will,does this make it invalid?

Ive also read that if a parent doesnt want a child to recieve anything he must state that in the will,not just lie and say he has no children.Is this true?

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Q: I was hoping if someone knew if there was any legal action I could take.

A: Sue everyone. Let the court sort it out. Ask for the farm, settle for a goat.

law encyclopedia - Modern laws concerning the inheritance of property attempt to protect the rightful heirs. A pretermitted heir is a child or descendant of the testator—the maker of a will—who has *unintentionally* been omitted from the will.

I agree with what you're saying, aaron. I'm sure each state/court has their own rules/regulations re a pretermitted heir. The thing is here we are not talking about a child born or adopted after the will was made but they *might* still be considered a pretermitted heir.

If you know a way to bring the decedent back to life and ask him, then we can find out if the omission was accidental or not.

Well, that's what a pretermitted heir is - one left out accidentally/inadvertently -- it will be up to the states/courts to decide if they want to consider a person a pretermitted heir or not. (sometimes they might, sometimes they might not according to state/court/situation)

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Quoting aaron

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If you know a way to bring the decedent back to life and ask him, then we can find out if the omission was accidental or not.

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I don't know a way to bring a decedent back to life but I know a medium who can contact & speak to the dead. :D (just teasing)

The medium probably should have told you that I know how these cases work in court. ;)

Thanks all!I think I will take everyone adviceand talk to an attorney and see what he says.I will let you guys know how it goes.


By the way thanks for making me laugh!