Wills and Living Wills

questions & answers

Question: can a mother say she had no children in a last will and testament if she does. Then state that no one of her lineage can contest the will?

Answer:

Here is the Arizona Revised Statute regarding your question:
 14-2302. Omitted children; shares; definition

A. Except as provided in subsection C of this section, if a testator fails to provide by will for a child who is born or adopted after the testator executes the will, the omitted child receives a share in the estate as follows:

1. If the testator had no child living when the testator executed the will, an omitted child receives a share in the estate equal in value to what the child would have received if the testator had died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will.

2. If the testator had one or more children living when the testator executed the will and the will devised property or an interest in property to one or more of the then-living children, an omitted child is entitled to share in the testator's estate as follows:

(a) The portion of the testator's estate in which the omitted child is entitled to share is limited to devises made to the testator's then-living children under the will.

(b) As limited under subdivision (a) of this paragraph, the omitted child is entitled to receive the share of the testator's estate that the child would have received if the testator had included all omitted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.

B. To the extent feasible, the interest granted an omitted child under subsection A, paragraph 2 of this section shall be of the same character, whether equitable or legal, present or future, as that devised to the testator's then-living children under the will.

C. In satisfying a share prescribed by subsection A, paragraph 2 of this section, devises to the testator's children who were living when the will was executed abate ratably. In abating the devises of the then-living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.

D. Subsection A of this section does not apply if either of the following is true:

1. It appears from the will that the omission was intentional.

2. The testator provided for the omitted child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or can be reasonably inferred from the amount of the transfer or other evidence.

E. If at the time the testator executed the will the testator fails to provide by will for a living child solely because the testator believes the child to be dead, the child is entitled to share in the estate as if the child were an omitted after-born or after-adopted child.

F. In satisfying a share provided by subsection A, paragraph 1 of this section, devises made by the will abate under section 14-3902.

G. For the purposes of this section, "omitted child" means a child who was born or adopted after the testator executed a will.


If you pay attention to D.1 of the statute, it appears they may leave you out of the will if they choose.

I would recommend you contact an attorney who is versed in Wills & Trusts. They will be able to guide you better through this process.                 
    

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  • can a mother say she had no children in a last will and testament if she does. Then state that no one of her lineage can contest the will?

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