Probate & Trust Litigation

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Pretermitted Heirs


© Ralph F. Holmes

            To protect children and grandchildren from being inadvertently disinherited when omitted in a Will, RSA 551:10 provides that, if certain conditions are met, the omitted child or grandchild shall receive the same estate share as he or she would have received had there been no Will at all and the estate passed by intestate succession. RSA 551:10 provides:

Every child born after the decease of the testator, and every child or issue of a child of the deceased not named or referred to in his will, and who is not a devisee or legatee, shall be entitled to the same portion of the estate, real and personal, as he would be if the deceased were intestate.

Under the statute, an adopted child enjoys the same protection as a natural one. RSA 170-B: 20, V; In the Matter of Jackson, 117 N.H. 898 (1977).

In some cases, the familial relationship between the testator and the claimant will be contested, which will lead counsel to seek DNA testing as well evidence of whether the testator affirmed or denied parenthood.

The analysis under the statute is limited to an examination of the governing estate plan without consideration of extrinsic evidence. In re Estate of MacKay, 121 N.H. 682 (1981). Application of the statute to the facts of a given situation requires review of the case law, which is summarized below. The Court has yet to decide whether a child who is not named or referenced in a pour-over Will who is named in the trust is a pretermitted heir. The Court’s decision in In re Estate of Came, 129 N.H. 544 (1987), suggests that such a child may indeed be pretermitted, notwithstanding the testator’s clear awareness of the child.


Claimant Situation Is Claimant Pretermitted? Authority
Child Will does not name or reference Claimant, but references Claimant’s child (grandchild of testator)


Yes Gage v. Gage, 29 N.H. 533 (1854)
Child Claimant is named in Will as husband of a legatee


No Boucher v. Lizotte, 85 N.H. 514 (1932)
Child Will references “Children”


No Smith v. Smith, 72 N.H. 168 (1903)
Child and


Will refers to “Heirs” or “Next-of- Kin”


Yes In re Estate of MacKay, 121 N.H. 682 (1981); see also In re Estate of Robbins, 756 A.2d 602 (2000)


Child Child is not named in most recent codicil, but is named in Will provision revoked the codicil


No In re Estate of Osgood, 122 N.H. 961 (1982)
Child Child is named in prior Will, but not in later Will revoking prior Will


Yes In the Matter of Jackson, 117 N.H. 898 (1977)
Child Child is not named or referenced in Will, but is named in trust that Will says is excluded from the estate


Yes In re Estate of Came, 129 N.H. 544 (1987)


(Note: Ralph Holmes is currently retired from McLane Middleton. For information on this or other probate litigation issues, please contact Alexandra Cote at