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Will Omission Does Not Entitle Estranged Son to Inheritance

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JULY 24, 2000 VOLUME 8, NUMBER 4

The general public is frequently misinformed about wills and estate planning. One pervasive notion is that a will must leave some token amount to every child (or other relative) in order to disinherit that individual. While the most frequent formula is to leave $1.00 to each individual, one will took a different approach: in order to disinherit his wife and eight children, one Tucson man left the dining room table to the wife and one chair to each child.

Disinheritance need not be so complicated, at least in most cases. In some circumstances (and this varies by state in the U.S.), it may be impossible to completely disinherit spouses and/or children, but leaving one dollar to each will not improve the prospects of success.

That practice grew out of challenges to wills on the basis that the signer simply forgot he or she had a spouse or children. By leaving a token amount to a disfavored child, the signer of a will demonstrates that the omission is intentional, not accidental. The same result can be obtained more directly, by language describing the disinheritance. “I have a son Jeremy, to whom I leave nothing” is every bit as effective as “I leave the sum of $1.00 to my ne’er-do-well son, Jeremy.”

Incredible as it may seem, sometimes people really forget that they have children. Some states’ laws provide default rules, by which a child who has not been mentioned may be entitled to receive some share of the decedent’s estate. In Montana, for example, the law provides that a child will receive a share of the estate even though not mentioned, if it can be shown that the parent mistakenly believed that the child had died.

That was the section relied on by William Prescott Putman when his mother, Gertrude E. Prescott, died. Mr. Putman had been raised by his father after his parents’ marriage was annulled in 1954, and he had no direct contact with his mother after he was three. In a 1985 will she left her entire estate to Montana State University and the Museum of the Rockies; in a draft prepared six years later (but never signed), she directed inclusion of a paragraph reciting that “the line of succession for this branch of the Prescott family ends with me.”

Mr. Putman challenged the will, claiming that he was entitled to a share of his mother’s estate. He claimed that she must have believed that he was deceased. Otherwise, he argued, she must have been incompetent to sign a will.

Mr. Putman could not produce any affirmative evidence that his mother thought he had died. The only indication along those lines was the mention in the unsigned will that “the Prescott family ends with me.” In fact her lawyer’s file included a note indicating that she had told him about the existence of her son some time after the will was signed.

On the subject of her alleged incompetence, Mr. Putman pointed to several factors. His mother had been determined to be 30% disabled by the Veteran’s Administration in 1945, due to an anxiety disorder. She had been diagnosed as mentally ill several times during her life. She had gotten a college degree (in Agriculture) at Montana State College in 1953, but she lived alone in a small cabin near White Sulphur Springs, Montana, without running water or electricity for years. She had suffered a stroke four years before she signed her will, and was under a conservatorship at the time of signing.

On the other hand, Ms. Prescott’s attorney testified that she knew what she was doing when she signed the will, that she was consistent in her intentions over a two-decade period, and that she wanted her property to go to the Montana State University and the Museum of the Rockies. Even her conservator testified that she understood her financial affairs at the time the will was signed. One doctor testified on behalf of Mr. Putman, saying that the records seemed to indicate to him that her competence was questionable. Even that expert witness, however, acknowledged that her understanding of her finances and her family “ebbed and flowed” during the time the will was signed.

Both the Gallatin County probate court and the Montana Supreme Court determined that Ms. Prescott was competent, and that the omission of her son was intentional. He was not entitled to receive any portion of her estate by law, and her bequest to the two charities was upheld. But Ms. Prescott could have probably have saved her estate the cost of legal proceedings if she had simply written “I have a son William, to whom I leave nothing.” Estate of Prescott, July 20, 2000.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.