Josiah Treloar’sfirst will left his estate to his wife unless she died before he did, in which case one piece of land was to go to his daughter, Evelyn, another to his son, Rodney, and the rest of his estate was to be divided equally among Evelyn, Rodney and another daughter, Beverly. 

After his daughter Evelyn died, Josiah executed a new will. To help his lawyer in preparing this document, Josiah gave him a copy of the old will with handwritten changes, including Evelyn’s name crossed out. The new will left the land to Rodney and the remainder of the estate to Rodney and Beverly equally. Evelyn’s husband and children got nothing although Evelyn’s husband, Leon, was named as executor. The will stated: “I hereby nominate and so far as I legally may appoint as Executor of this will, my son-in-law, Leon Merrill of Concord, New Hampshire.”

Under New Hampshire law, all issue (including children and grandchildren) can qualify as pretermitted heirs. The law assumes that if the testator does not leave anything to his issue or does not refer to them in his will, it is because he has forgotten them. They are therefore entitled to a share of his estate. If Josiah had mentioned Evelyn then the assumption would be that he had not forgotten her or her children. Evelyn’s children argued that they were pretermitted heirs and, therefore, were entitled to a share of Josiah’s estate. Josiah’s attorney was serving as executor (not Leon). When he refused to pay the children, they sued. 

Questions:

1. Are Evelyn’s children entitled to a share of Josiah’s estate?

2. What is a pretermitted heir? 

3. Is a child entitled to inherit something? 

4. How can courts tell if a child is left out by accident?

5. What must a parent do then if he doesn’t want to leave money to a child?

6. Why does the law presume that a child who is left nothing has been forgotten?

7. What happens to the pretermitted heir?

8. How much is that?

9. In this case, did Josiah forget Evelyn?

10. Why did the court ignore his clear intent?

11. What should Josiah have done?