Legal Definitions - pretermission

Pretermission refers to the situation where a person who creates a will (known as the testator) unintentionally fails to include a direct heir, such as a child, in that will. It also describes the legal status of such an heir who has been left out. In many legal systems, specific laws exist to protect these "pretermitted heirs," often assuming that the omission was an oversight rather than a deliberate decision to disinherit them, especially if the heir was born after the will was made.

Here are some examples illustrating pretermission:

• Example 1: Child Born After the Will Was Made

  A young couple, Sarah and Tom, draft a will stating that all their assets should go to each other, and then to their only child, Lily. Two years later, they have another child, Max. Tragically, Sarah and Tom pass away before they have a chance to update their will to include Max.

  How it illustrates pretermission: Max is a pretermitted heir. He was unintentionally omitted from the will because he was not yet born when the will was created. Laws in many jurisdictions would presume that Sarah and Tom would have wanted Max to inherit alongside Lily and would allow Max to receive a share of the estate, despite not being named in the will.

• Example 2: Heir Believed to Be Deceased

  Mr. Henderson had three children: Alice, Ben, and Carol. Years ago, Carol disappeared and was presumed lost at sea. Believing Carol to be deceased, Mr. Henderson drafted a will leaving his entire estate to Alice and Ben. Later, it is discovered that Carol survived and is alive and well.

  How it illustrates pretermission: Carol is a pretermitted heir. Mr. Henderson's will did not include her, not because he wished to disinherit her, but because he mistakenly believed she was no longer living. Pretermission laws could allow Carol to claim a portion of her father's estate, arguing that her omission was unintentional.

• Example 3: Unintentional Oversight in Drafting

  Mrs. Rodriguez, an elderly woman with four adult children, decides to write her will. She intends to divide her estate equally among all of them. However, due to a momentary lapse in memory or a clerical error during the drafting process, her will explicitly names only three of her children as beneficiaries, completely omitting her youngest son, David.

  How it illustrates pretermission: David is a pretermitted heir. His mother's intention was to include him, but he was unintentionally left out of the will. David could present evidence (such as previous statements from his mother or a history of equal treatment) to demonstrate that his omission was an oversight, allowing him to potentially claim his share of the inheritance under pretermission statutes.