Citation. In re Estate of Laura, 141 N.H. 628, 690 A.2d 1011, 1997)
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Brief Fact Summary.
Edward R. Laura, Sr. disinherited certain individuals who were in his will, specifically, but not limited to the grandmother and father of the appellants, Neil Chicoine III, and Cecilia Chicoine. The Probate Court held that the appellants were not pretermitted heirs because their grandmother was mentioned in the will.
Synopsis of Rule of Law.
When a testator’s child has been named, referred to, or is a devisee or legatee under a will, the child’s issue may not take under a pretermitted child statute.
Facts.
Laura, Sr. created a will that disinherited the grandmother of Neil Chicoine III and Cecilia Chicoine. Later, Laura Sr. attempted to execute a codicil to a will that would have disposed his estate in three equal shares to Edward R. Laura Jr., Shirley Chicoine, and Richard Chicoine, and to Shirley and Edward’s respective children. However the codicil was not properly witnessed. Laura, Sr. never mentioned the grandchildren in the disinheritance clause. However he specifically mentioned the father of the great-grandchildren, Neil Chicoine, Jr. He also named the great-grandchildren’s grandmother, JoAnn in his will. Richard Chicoine on behalf of himself and the testator’s great grandchildren appealed the decision arguing because the great grand children were not named, they should take a portion of the estate under the pretermitted heir statute
Issue.
Whether a child is pretermitted if they are the issue of a child who was named in the will?
Held.
No. The appellants are not pertermitted because they are the issue of a child who was named in the will. The testator named his daughter in the will who is the great grandmother of the appellants. The testator also named the appellants father in the will. The omission is not the product of forgetfulness because the testator actually names his issue in the will who are the ancestors of the omitted children.
Discussion.
The law determines that when a testator disinherits a certain person, it includes that individual’s issue. If that individual had been included in the will, their issue would be entitled to take under anti-lapse statutes.
