A pretermitted defence is a legal strategy employed in court to dispute a claim made against a will. It is commonly utilised when an heir or beneficiary is excluded from a will, and the pretermitted heir statute may be relevant. This statute permits an omitted heir, such as a child or spouse, to receive a portion of the estate as if the person who made the will had died without one. However, this is only applicable if the omission was accidental, as in the instance of a child born after the will was created.
A pretermitted defence is a legal defence used in cases involving wills and estates. It is based on the fact that the person who made the will (the testator) did not include a certain individual or entity in their will, either intentionally or unintentionally. A pretermitted heir is someone who would have inherited from the testator’s estate if they had been included in the will, but for some reason, they were not. This can occur if the testator forgot to update their will after a significant life event, such as the birth of a child. A pretermitted-heir statute is a state law that offers protection for pretermitted heirs. According to this law, an omitted child or spouse can receive the same portion of the estate as if the testator had died without a will, unless the omission was intentional. This means that if a child or spouse was accidentally left out of the will, they can still inherit from the estate. For instance, let’s consider the case of John who creates a will leaving his entire estate to his wife, Jane. However, John forgets to update his will after the birth of their child, Sarah. When John passes away, Sarah would be considered a pretermitted heir since she was not included in the will. If the state where John resided has a pretermitted-heir statute, Sarah would be entitled to a portion of John’s estate, even though she was not mentioned in the will.
Pretermitted defence is a legal term used to describe a situation where a child or spouse is unintentionally left out of a person’s will or trust.
Yes, in most jurisdictions, pretermitted children and spouses are entitled to a share of the deceased’s estate, even if they were not specifically mentioned in the will or trust.
The share for a pretermitted child or spouse is typically determined based on the laws of intestacy, which outline the distribution of assets when there is no valid will or trust in place.
Yes, a pretermitted child or spouse can challenge the validity of the will or trust if they believe it was executed under undue influence, fraud, or lack of capacity.
If it can be proven that the omission was intentional, the pretermitted child or spouse may not be entitled to any share of the estate. However, this can vary depending on the specific laws of the jurisdiction.
In some cases, a pretermitted child or spouse may be entitled to receive more than their statutory share if they can prove that the omission was a result of mistake or oversight.
Yes, estrangement does not typically affect the rights of a pretermitted child or spouse to inherit from the deceased’s estate.
In some jurisdictions, a person can legally disinherit a child or spouse by including specific language in their will or trust. However, this may not be valid in all jurisdictions, and certain legal requirements must be met.
Yes, a pretermitted child or spouse may still be able to claim assets that were transferred outside of the will or trust, such as through joint ownership or beneficiary designations.
If you believe you are a pretermitted child or spouse, it is advisable to consult with an experienced estate planning attorney who can guide you through the legal process and help protect your rights.
This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.
This glossary post was last updated: 27th April 2024.
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