New Hampshire Supreme Court Reverses Probate Court Finding That Son Was Not Pretermitted Heir

In In re Estate of Marie G. Dow, “the New Hampshire Supreme Court analyzed the pretermitted heir statute and case law to determine that decedent’s son was a pretermitted heir and entitled to his intestate share of his mother’s estate.” Marie Dow executed her last will on June 30, 2014, when she lived in Massachusetts. Marie died in 2018 and lived in New Hampshire at the time. Marie’s son Christopher Dow and ex-daughter in law Leslie Dow, another son, and granddaughter survived Marie. 

After Marie’s death, her attorney filed her will in Massachusetts but did not attempt to open probate. Christopher Dow filed a petition for estate administration in New Hampshire, but the probate court would not act on the petition without the original will. A dispute over proper venue (Massachusetts or New Hampshire) followed. 

Probate was opened in New Hampshire and Marie’s attorney was ordered to file the original will there.

Christopher then filed a motion claiming that he was a pretermitted heir under Marie’s (his mother) will. Leslie, the beneficiary of the estate under the will, objected to the petition. 

The Court held that New Hampshire probate law applies despite the choice of law provision of a will, if the will disposes only of personal property.

The pretermitted heir statute, simply stated, holds that a child of the deceased not named or referred to in the decedent’s will and who is not a devisee or legatee, shall be entitled to the same portion of the estate, real and personal, as they would if the deceased died intestate. 

The purpose of the statute is to “prevent a mistake or unintended failure by testator to remember the natural object of his or her bounty.” 

In order for this statute to apply, the child must not be named or referred to in the will as it’s purpose is prevent forgetfulness and not disinheritance. 

If the child is not referred to at all, it can be presumed that the it was not the testator’s intent to disinherit the child. 

See New Hampshire Supreme Court Reverses Probate Court Finding That Son Was Not Pretermitted Heir, Probate Stars, January 28, 2021.