M Civ JI 178.02 Pretermitted Child: Will Executed Prior to Birth or Adoption of Child Omitted from Will (EPIC)

The law provides that a child who was born or adopted after the parent executed [ his / her ] will and who was omitted from the will is entitled to a certain share of the deceased parent’s estate. However, the child is not entitled to a share of decedent’s estate if:

*(a) it appears from the will that the omission of the child was intentional,

(or)

*(b) decedent provided for the child by transfer of property outside the will and intended the transfer to substitute for provision for the child in [ his / her ] will.)

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 respondent has the burden of proving (either of) the following:

*(a) The will expresses an intention of [ name of decedent ] to omit [ name of child ] from the will, (or))

*(b) [ Name of decedent ] **(provided for [ name of child ] by transfer of property outside the will, and) intended that the transfer of property outside the will substitute for provision for [ name of child ] in [ his / her ] will.)

You must determine whether respondent 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 Court should delete either subsection if it is not an issue in the case. Subsection a. should be deleted if the will is unambiguous and there is no issue for the jury. See Hankey v French, 281 Mich 454; 275 NW 206 (1937); Carpenter v Snow, 117 Mich 489; 76 NW 78 (1898).

**If the parties do not dispute the transfer or transfers of property outside the will, the Court should delete this first part of subsection b.

Decedent’s intent to substitute transfers outside the will may be shown by his or her statements or reasonably inferred from the amount of the transfer or other evidence. MCL 700.2302(2)(b).

The provision of EPIC that sets forth the share of the estate allotted to a pretermitted child is reproduced in the Introduction to this chapter.

The child claiming under MCL 700.2302 must show that he or she is a child of the testator, that he or she was born or adopted after the will was executed, and that the will failed to provide for him or her. If any of these present issues of fact, this instruction must be modified.

MCL 700.2302 is taken almost verbatim from the 1990 version of the Uniform Probate Code (UPC) §2-302. The UPC comment explains that the moving party has the burden of proof on the elements of subsections (b)(1) and (b)(2) (numbered (2)(a) and (2)(b) in the Michigan statute).

Comment

MCL 700.2302.

Under EPIC there are two grounds that disqualify an after-born or after-adopted child omitted from the will from claiming pretermitted status: (1) that it appears from the will that the omission was intentional; and (2) that the testator made other provisions for the child meant to substitute for provision in the will. Prior law contained only the first of the two grounds. MCL 700.127(1).

Under prior law, any of a testator’s children (and issue of a deceased child) not provided for in the will could claim pretermitted status if the omission was due to mistake or accident. MCL 700.127(2). EPIC eliminates these claims and allows a child living when the will was executed to claim pretermitted status only if the testator’s sole reason for omitting the child was a belief that the child was dead. See M Civ JI 178.03 Pretermitted Child: Omission of Living Child from Will Because of Mistaken Belief Child is Dead (EPIC). EPIC also eliminated the special provision in prior law for a child who was the offspring of nonconsensual sex. MCL 700.127(3).

EPIC retains the provision of prior law precluding an omitted after-born or after-adopted child from claiming pretermitted status if “[ i]t appears from the will that the omission was intentional.” MCL 700.2302(2)(a). Prior law expressed this provision as “unless it is apparent from the will that it was the testator’s intention not to make a provision for the child.” MCL 700.127(1). In Carpenter, the court construed a substantially identical earlier statute and held that the trial court should have considered only the will on the issue whether the decedent intended to omit the after-born child and erred in considering extraneous testimony. See also Hankey. However, in some cases, courts have permitted extrinsic evidence to construe an ambiguity in a will. See In re Estate of Kremlick, 417 Mich 237; 331 NW2d 228 (1983); Anno: Admissibility of Extrinsic Evidence to Show Testator’s Intention as to Omission of Provision for Child, 88 ALR2d 616 (1963).

Like prior law, under EPIC only a child omitted from the will can claim pretermitted status. Two pre-EPIC cases have addressed the meaning of omitted. In one case, the court held that an after-adopted child was not omitted from the will where testator provided for the child in a contingent devise that failed because the contingency did not occur. In re McPeak Estate, 210 Mich App 410; 534 NW2d 140 (1995) (rejecting an argument that the child was omitted because the will provided for the child as a stepchild, but not as an adopted child). In another case, the court held that a child named in a will but given a mere memento was not precluded from claiming that the testator omitted to provide for her. In re Estate of Stebbins, 94 Mich 304; 54 NW 159 (1892).

History

M Civ JI 178.02 was added April 1, 2002.​