Bailey v. Warren, 319 S.W.3d 185 (Tex. App.—Tyler 2010, pet. denied).


Pretermitted Child


Testator’s valid will left his entire estate to his wife but if she did not survive him, to his heirs at law. Testator had two non-marital children who claimed they were entitled to his estate as pretermitted children under Probate Code § 67. Son One claimed that although he was born twelve years before Testator executed the will, he was nonetheless pretermitted because Testator was not adjudicated as his father until one year after he executed his will. Son Two claimed he was pretermitted because he was born after Testator executed the will and is not provided for even though the contingent beneficiary of the will was Testator’s “heirs at law.” The trial court granted summary judgment in favor of both children.

The appellate court reversed. With regard to Son One, the court rejected the argument that he was “constructively born” after will execution because Testator was not adjudicated as his father until after he executed his will. Instead, once a adjudication of paternity occurs, Son is treated as being Testator’s child from the moment of child’s birth which was twelve years prior to will execution.

The court began its analysis of Son Two’s case by recognizing that Son Two was a pretermitted child because he was born many years after Testator executed his will. However, Son Two was mentioned or otherwise provided for in Testator’s will and thus not entitled to a pretermitted child’s share. The contingent class gift to Testator’s “heirs at law” encompassed Son Two as Son Two would have been one of Testator’s heirs had Testator’s wife not survived. The court also explained that even if Son Two was not included in this class gift, he would still not be entitled to share in Testator’s estate because he would be limited to sharing in the contingent gift to Son One as a heir at law. Because Testator’s wife survived, Son One received nothing and thus Son Two would receive nothing as well.

Moral: If a testator wishes to prevent his or her intended property disposition from being attacked by children alleging to be pretermitted, the testator should include an express provision in the will such as, “I intentionally make no provision for any pretermitted child and I intend that pretermitted children receive nothing from my estate either under this will or by intestacy.”