In re Estate of Laura
141 N.H. 628, 690 A.2d 1011 (1997)

  • Laura had three kids; Edward Jr., Shirley, and JoAnn. He wrote a will that specifically by name mentioned and disinherited Edward Jr., JoAnn, and JoAnn’s two kids Richard and Neil.
  • JoAnn and Neil died.
    • Neil had two children (Laura’s great-grandkids), Cecilia and Neil Jr. Cecilia was born one day before Laura’s will was executed, and Neil Jr. was born several years after.
  • Laura later attempted to write a codicil that gave shares to Edward and Richard, but it was never properly witnessed. Then he died.
  • Cecilia and Neil Jr. stepped forward and asked for shares as pretermitted heirs.
    • A pretermitted heir is a descendant who was omitted from the will. The assumption is that the omission was accidental, “unless there is evidence in the will itself that the omission was intentional.”
      • By Statute, pretermitted heirs get the share they would have received under intestate succession.
    • Since Cecilia and Neil Jr. were not alive when Laura’s will was written, they were obviously omitted.
  • The Probate Court barred Cecilia and Neil Jr. from inheriting. They appealed.
    • Cecilia and Neil Jr. argued that since JoAnn and Neil Sr. were dead, they were entitled to inherit per stirpes.
      • They further argued that just because JoAnn and Neil Sr. were explicitly disinherited by name, they were not, so they still fell under the pretermitted heir statute.
  • The New Hampshire Supreme Court affirmed.
    • The New Hampshire Supreme Court found that a testator who specifically names one heir in an effort to disinherit them has “referred to” the descendents of that heir for the purposes of that Statute.
      • Basically, by explicitly disinheriting JoAnn and Neil, Laura also disinherited all of JoAnn’s children and grandchildren, even the ones not specifically named.
      • JoAnn was never entitled to a share, so her grandkids couldn’t get more than she would have received.