M Civ JI 178.03 Pretermitted Child: Omission of Living Child from Will Because of Mistaken Belief Child Is Dead (EPIC)

The law provides that if at the time a decedent executed [ his / her ] will, [ he / she ] omitted from the will any of [ his / her ] living children solely because [ he / she ] mistakenly believed that the child was dead, that child is entitled to a certain share of the deceased parent’s estate.

In this case, the share of [ name of decedent ]’s estate that [ name of child ] would receive is [ describe share child would be entitled to under MCL 700.2302(1)(a) or (b) ].

The petitioner has the burden of proving that:

(a) at the time [ name of decedent ] executed [ his / her ] will, [ he / she ] believed that [ name of child ] was dead, and

(b) the sole reason that [ name of decedent ] omitted [ name of child ] from the will was the mistaken belief that [ name of child ] was dead.

You must determine whether petitioner has met [ his / her ] burden of proof.

The Court will furnish a Special Verdict Form to assist you in your duties. Your answers to the questions in the Special Verdict Form will provide the basis on which this case will be resolved.

Note on Use

The statute setting forth the share of a pretermitted child is reproduced in the Introduction to this chapter.

Comment

See MCL 700.2302(3).

Under section 2302(3) of EPIC, a child living at the time the will was executed can claim pretermitted status only if the testator mistakenly believed that the child was dead and that was testator’s sole reason for omitting the child. The mistaken belief must be the sole reason, and not one of several reasons, for the exclusion.

Under prior law, any child, issue of deceased child, or child born out of wedlock omitted from a testator’s will could claim pretermitted status if the omission was not intentional but was made by mistake or accident. MCL 700.127(2). Except for a mistaken belief that a child is dead, EPIC eliminated mistake or accident as a grounds for claiming pretermitted status. EPIC also changes prior law by providing only for claims by a child, and not claims by issue of a deceased child. The definition of child in EPIC specifically excludes grandchild. MCL 700.1103(h).

Prior case law under section 127(2) of the Revised Probate Code held that decedent’s intent and whether the omission was by mistake or accident are issues for the jury (In re Estate of Stebbins, 94 Mich 304; 54 NW 159 (1892)), and that the omitted child or issue of deceased child has the burden of proof on these issues (In re Potts’ Estate, 304 Mich 47; 7 NW2d 217 (1942); Brown v Blesch, 270 Mich 576; 259 NW 331 (1935); In re Estate of Stebbins). The cases also held that the fact-finder is not limited to the will, but can consider extrinsic evidence on these issues. O’Neall v Her, 254 Mich 631; 236 NW 890 (1931); Bachinski v Bachinski’s Estate, 152 Mich 693; 116 NW 556 (1908).

One pre-EPIC case decided that children were not omitted from a will where the will included a specific bequest for each child to be funded from a life policy even though the testator failed to make the estate the policy beneficiary. In re Estate of Norwood, 178 Mich App 345; 443 NW2d 798 (1989).

The April 2024 amendment is a housekeeping change reflecting a re-numbering of MCL 700.1103(f) to MCL 700.1103(h).

History

M Civ JI 178.03 was added April 1, 2002.​ Amended April 2024