Take-Away: Courts often struggle when it comes to the implied disinheritance of a child or grandchild under a Will or Trust. If an excluded individual falls within the scope of an issue, heir or descendant, it is wise to expressly name that person and expressly state that such person is not to take any distribution under the decedent’s Will or Trust. Otherwise, an ambiguity can exist, inviting the court to interpret the instrument in search of the settlor/testator’s intent.

Background: The Estates and Protected Individuals Code (EPIC) provides several definitions of key words used in estate plans. Heir means a person, including a surviving spouse or the state, that is entitled under the statutes of intestate succession to a decedent’s property. [MCL 700.1104(p).] Issue means an individual’s descendant. [MCL 700.1105(d).] Descendant means in relation to an individual, all of his or her descendants of all generations, with relationship of parent and child at each generation being determined by the definitions of child and parent contained in EPIC. [MCL 700.1103(k).] An ambiguity is created, however, when an individual who might fall within the definitions of heir, issue or descendant is not expressly mentioned, yet the legal term is used as part of the distributive provisions of the Will or Trust. Such was the situation in a recent decision from the Nebraska Supreme Court.

Court Decision: In re Estate of Michael R. Brinkman, 308 Neb. 117 (January 8, 2021)

Facts: Michael died in late 2016 leaving a Will. Michael was survived by two children, Nicole and Seth. Michael’s mother Kim was named personal representative. Michael’s daughter Nicole was not mentioned in his Will. Michael’s Will contained three relevant provisions.

In Article I, Michael states: The references in this Will to my ‘son’ refer to my son, Seth Michael Brinkman. The references in this Will to my ‘children’ and/or my ‘issue’ shall include my son, Seth Michael Brinkman, and all children of mine born or adopted after the execution hereof.

  • Nicole, who was not mentioned in the Will, was a child born to Michael prior to the execution of his Will.

In Article V, Michael provided: I give the residue of my estate to my issue, per stirpes.  

  • Nicole was Michael’s issue, along with Seth, under Nebraska’s statutes.

In Article VII, Michael provided: If at any time before final distribution there shall not be in existence anyone who is, or who might become, entitled to receive benefits under the foregoing provisions of this Will, any portion remaining shall be distributed to the persons to whom and in the proportions in which the same would have been distributed had I died intestate, domiciled in Nebraska, owning such assets immediately following the death of the last survivor of the class composed of my issue and myself.

  • As one of Michael’s issue, Nicole would be entitled to an intestate share had Michael died without a Will. 

Nicole objected to the probate of her father’s Will. She claimed that the use of the term issue was ambiguous, and that she was entitled to one-half of her late father’s estate under the Will’s residuary provision. Both the personal representative and Seth claimed that Nicole was disinherited under the Will, specifically Article I.

Trial Court: The trial judge found that Michael’s Will was ambiguous with regard to Nicole’s status. The judge found that Nicole had not been disinherited, and thus she was Michael’s heir and issue for purposes of the distribution of the residue of his estate under Article V.

Nebraska Supreme Court: The Supreme Court affirmed the decision of the trial judge that Nicole was entitled to one-half of her father’s estate.

The Court looked to the use of the word include in Article I where it was used to refer to Michael’s children. It noted that the word include could be used to include a child born out of wedlock to avoid an argument that such a child should be excluded. The Court found that the use of the word include created a patent ambiguity which required that Article I had to be harmonized with Michael’s intention as determined from the other plain provisions of his Will.

The Court then found that to include as referenced in Article I of Michael’s Will does not result in an exclusion. Article I therefore did not exclude the issue of a person pursuant to state statute. “Nicole is not excluded from Michael’s use of ‘issue’ simply because he wished to note that Seth and other children born or adopted later should be included. To include is not to exclude in this context.”

Since Nicole was a linear descendant of Michael, she thus was included in Nebraska’s statute that defines issue, which was the class that was to share in the distribution of the residue of Michael’s estate under Article V.

Finally, in its search for Michael’s intention in the interpretation of his Will, the Court noted that his Will did not include any express statement that disinherited Nicole from the estate. Instead, the Will contained language that provided for the ultimate distribution of Michael’s estate to his heirs at law, which included Nicole. “No express statement disinherits Nicole or otherwise provides that she not receive from the estate, and we will not speculate as to Michael’s intentions not contained in his will. A close examination of the entirety of the will is contrary to the suggestion of Seth and [the personal representative] to the effect that Nicole was disinherited.”

Conclusion:  It is hard to tell if the Nebraska Supreme Court came to the right result. It did mention, in passing, that Wills and Trusts should not be interpreted, whenever possible, to cause the disinheritance of a child or grandchild, so that might have been the ‘tipping point’ for the Court’s holding in favor of Nicole, even though she was unmentioned in the Will.

If anything, this case is a good reminder that Wills and Trusts should define children, heirs, issue, and descendants as each of these terms reflect a class of individuals who otherwise share equally in the distribution of the decedent’s estate. If an individual is not to share in the decedent’s estate, yet one or more of the ‘class gift’ terms is used in the instrument, it would be wise to expressly exclude the named individual from both the class and also from sharing in any part of the decedent’s estate. This is particularly the case if the individual comes from different relationships than others in the ‘class’, e.g. a child/issue from a prior marriage with other children/issue from a later marriage. Second families always tend to complicate the distribution of a decedent’s estate, to it is important to not unintentionally create an ambiguity by using class-gift terms unless that is what is actually intended.