Does a disinheritence provision contained in a Will which excludes a specifically-named child, also include that child's descendants, even though they are not specifically disinherited?

Decedent's inartfully drafted Will contains one paragraph which specifically disinherits her Son.  Her Will also contains a residuary clause which leaves everything to her children or their descendants, per stirpes.  The term "children" is not defined in the Will.  So, even though Son is disinherited, and he died before the Testator/Decedent, does that exclude his two surviving children (Testator's grandchildren)?
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Answer
Robert Keating
Boulder, Colorado
Business Law
(303) 448-8801

About
Robert Keating formed Robert Keating Law, P.C., the predecessor firm to Keating & Lyden, LLC, in May 2009 to provide the highest quality legal services to his clients.

If you are thinking to give your children their inheritance early except one named child. This issue can be resolved. You can disinherit adult children, something that people often do for one of two reasons. One is because the disinherited child may be more financially secure than others. Another is because the parent and child are estranged or otherwise at odds. Whatever your reason, we strongly recommend  that you disinherit children reluctantly. This will be your last interaction with your children and the last thing they remember about you. And because you will no longer be around for them to take their frustration out on, they may direct their ire towards their siblings with litigation. All your children may end up with bitter feelings about your decision.

 
You cannot, however, disinherit children younger than 18. Disinherited minor children can elect to receive whatever they would have received under state law if you didn’t have a will. Children left out of a will that was written after they were born can make the same election if the will didn’t have any provision for “after-born” children.

05/30/2017

Answer
Jerrold L Goldstein
Cleveland, Ohio
Financial Transactions
216/687-3347

About
Enjoy travel, food and wine. Interested in the arts.

The issue will be resolved only by a construction action. In a similar situation, it was my opinion that the descendants of the disinherited child were not excluded, at least where the disinheritence provision did not expressly extend to the descendants and there was nothing else in the document which could arguably be pointed to to generate that result.
The inconsist provisions create an ambiguity which could permit testimony in a construction action to explain what the testator indended.

11/24/2010

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