Updated: Jan 6, 2022
Dear Mr. Premack: A man makes a Will saying he has no children and leaving his estate to other relatives. Later he discovers he has an illegitimate child but does not change the Will after he finds out about the child (now an adult). Can the child get the Will annulled or get any part of the father’s estate when he dies? – MTH
The father’s Will is his final instruction about distribution of his estate. If the Will meets all the formalities set out in the law, it should be admitted to probate after the father dies. Only the people named specifically in the Will as heirs will receive any part of the father’s assets. Since the unrecognized child is not mentioned, the child should get no part of the estate.
The unrecognized child might try to prevent the Will from being admitted to probate. To do so, there must be proper legal grounds to contest the Will’s validity. There are a limited number of legal grounds on which to base a contest, including lack of proper formalities, lack of testamentary capacity, undue influence, fraud or forgery.
One of the requirements of “testamentary capacity” is knowing the extent of your family. But the general focus is on forgetting something you already know, as in an Alzheimer’s patient being asked to sign a new Will after forgetting that she has children.
The man in your letter did not forget about this child, instead he never knew about the child. That lack of knowledge means he did not know the entire extent of his family but does not in any way impinge on his mental capacity. The fact that this man found out about his illegitimate child and did not modify his Will also indicates he made a deliberate choice to exclude the discovered child.
If the facts were different, if the man had died without any Will, then this illegitimate child would be included as an heir-at-law if paternity exists. Texas law presumes paternity if 1) the man was married to the child’s mother at the time of birth or the child was born within 301 days after that marriage ended, 2) if the man married the mother after the date of birth and voluntarily agreed to be named as father on the birth certificate, or 3) if the man resided in the mother’s household for the first two years of the child’s life and told others that he is the father.
If none of those fact patterns apply – and since your letter claims the man did not know about the child, it seems they do not apply – then the child can petition the probate court to determine the validity of the paternity claim. The court must find that there is clear and convincing evidence of paternity; if so, the child becomes an heir-at-law along with any other children.
But remember: the rights of heirs-at-law are secondary to the rights of devisees clearly identified in the man’s Will. If the Will is legitimate, the estate goes to the persons named in the Will and the heirs-at-law have no claim.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, February 12, 2010