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Estate of Shannon

    Brief Fact Summary. Russell Shannon executed a will in which he disinherited all persons who were not mentioned in the will. Shannon later married Lila Shannon. At Shannon’s death, Lila Shannon petitioned for determination of her heirship under an omitted spouse statute.

    Synopsis of Rule of Law. A will does not express a specific intent to disinherit a spouse if her specific name does not appear on the face of the will and the facts do not express a specific intent by the testator to disinherit his wife.

    Facts. Shannon executed a will in which he disinherited all other living persons and relatives other than those mentioned in the will. After executing the will, he married Lila Shannon. Russell never changed his will to include Lila Shannon. Lila petitioned the court for family allowance and a determination of an estate distribution as an omitted spouse. Under the Probate Code, an omitted spouse whom the testator marries after executing his will, is entitled to take a certain share of his estate unless the (1), the testator’s failure to provide for the spouse in the will was intentional and that intention appears on the face of the will, (2) the testator provided for the spouse by transfer outside of the will with the intention that the transfer be in lieu of a testamentary provision that is shown by the testator’s statements or from the amount of the outside transfer or other evidence, or (3) the spouse made a valid agreement to waive her rights to the share.

    Issue.
    Whether a will shows a specific intent to disinherit a spouse on its face if the testator disinherits persons not mentioned in the will and later marries a woman whose specific name does not appear in the disinheritance clause.

    Whether a spouse intended to make a transfer outside of the will to his wife instead of providing for her in the will making a testamentary disposition where the evidence shows, (1) the spouse received a portion of the deceased’s inheritance money before he died, (2) the spouse kept her property separate from her husband during the marriage, and (3) the testator told his attorney that he wanted his daughter instead of his wife to take his estate.

    Held.
    No. The will does not show a specific intent to disinherit his spouse because the testator did not specifically identify his wife by name in the disinheritance clause. At the time that the testator wrote his will, he did not have a wife who could become an “heir.”

    No. The spouse did not intend to make a transfer outside of the will to his wife instead of providing for her in the will the evidence must directly show that the deceased made the transfer to his wife in lieu of providing for her under the will. Even though the wife received money from the deceased’s retirement fund in the amount of $2,000 and (2) the deceased told a his attorney in the twelve months immediately preceding his death that he wanted his daughter to have his estate because his wife was wealthy, this evidence was not sufficient to show that the decedent specifically intended to disinherit his wife. Furthermore, an omitted spouse does not waive her right to take an elective share of her spouse’s estate just because she kept her property separate from her husband during marriage.


    Discussion. The evidence here failed to show a specific intent of the testator to disinherit his wife. Her name was not mentioned in the will and though she took money outside of the will, there was no sufficient evidence to rebut a presumption that the husband did not intend to disinherit his wife.


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