What happens to your Will when another beneficiary is born?

You Will usually says "I leave my estate to my children" or maybe "to my
grandchildren" or "to my children, and if a child isn't living, then to their
children". You will notice that no names are being used. Guest blogger
Stacey C. Maiden, Esq., Of Counsel to our Tax, Trust, Estates and Elder
Law Practice Area, today looks at the question of what happens when
new children or grandchildren are born after the Will is executed.

 

A common question from our estate planning clients, who name children, grandchildren or great-

grandchildren in their Wills, is "what happens if another child, grandchild or great-grandchild is
born or adopted? Do I need to update my Will?" New Jersey has a statute which addresses the
issue of the after-born or after-adopted child (N.J.S.A. 3B:5-16) and we can draft language to
specifically include any after-born or after-adopted children, grandchildren or great-grandchildren in
the Will. But what if the Will does not contain this sort of language and the beneficiaries are great-
grandchildren?

The New Jersey Appellate Court recently considered these facts in the unpublished case, In the

Matter of the Estate of Francis Marie Ackerson Yetter, Deceased, (A-0971-09, decided December 22,
2010). In her Will, Mrs. Yetter left certain shares of stock to two named great-grandchildren, who were
her only great-grandchildren at the time. After Mrs. Yetter signed her Will, two more great-
grandchildren joined the family. The after-born great-grandchildren argued that the devise should be
treated as a class gift, entitling them to share equally with the great-grandchildren identified in the
Will.

 

The Court considered the circumstances and overall testamentary scheme, and agreed,

finding that Mrs. Yetter did not intend to omit her after-born great-grandchildren. The Court

applied the doctrine of probable intent, which allows the Court, as far as possible, to ascribe to the

testator "those impulses which are common to human nature," finding that excluding two of her greatgrandchildren from her Will would be against the "common human impulses" of a great-grandmother who otherwise always treated her family fairly and equally. 

By Deirdre Wheatley-Liss 

For more information on these matters, please call our office at 305 548 5020.

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