In Oklahoma, Can A Pretermitted Child Challenge Or Be Excluded From A Will?

In estate planning and probate law in Oklahoma, a unique situation arises when dealing with a pretermitted child. This is a child that is unintentionally omitted from a will. Some reasons might be because they were born or adopted after the will was made. The following information clarifies whether a pretermitted child in Oklahoma can challenge a will, and if so, under what circumstances.

What Does Oklahoma Law Say About A Pretermitted Child?

According to Oklahoma Statutes Section 84-132, when a testator (the person who made the will) fails to provide for any of their children, or the children of any deceased child, in their will, it is presumed that this omission was unintentional. Unless it is evident that the exclusion was deliberate, the pretermitted child is entitled to a share of the estate as if the testator had died without a will (intestate). This means that the pretermitted child will inherit a portion of the estate based on Oklahoma’s intestacy laws.

What Is A Will Contest?

Under Oklahoma Statutes Section 58-29, any “person interested” can contest a will. This includes devisees, legatees, heirs, and pretermitted children. Their challenge can be pursued either personally or through a guardian or attorney.

The challenge could be founded on various grounds as outlined in Oklahoma Statutes Section 58-41. These include questioning the decedent’s competency to make a will, the presence of duress, menace, fraud, or undue influence at the time of the will’s execution, the due execution and attestation of the will, or any other substantial issues affecting the will’s validity. This could come into play if there was some evidence showing that the exclusion of the child from the will was deliberate.

During the trial of a contested will, witnesses to the will who are still competent can be examined. The court may allow other witnesses to prove the testator’s sanity and the will’s execution, particularly if the subscribing witnesses are unavailable, deceased, or not competent.

Even after a will has been admitted to probate, a challenge can still be mounted within three months. The grounds for such a post-probate contest include the discovery of a later will revoking or changing the previous one, a lack of jurisdiction for probate, incompetence of the testator, or improper execution and attestation of the will.

Excluding A Pretermitted Child

The Oklahoma statute that deals with pretermitted children is found at 84 O.S. 2011 §132. A review of the statute tells us that it is intended to protect forgotten children. Forgotten children are those children that are unintendedly left out of a will. This is why its important to list the names of all of your living and predeceased children in your will. It doesn’t matter if you leave them a dime or disinherit them its important to name them. If you have children born to your heirs or otherwise adopted its important to included them as well. Another tool is to place everything in a Trust. Because a trust does not have to be probated you have fewer hoops to jump through towards distributing assets to the heirs you want to receive.

Estate Planning Attorneys in Tulsa

A pretermitted child in Oklahoma has the legal standing to challenge a will. The basis for such a challenge can range from unintentional omission to questions regarding the validity of the will’s execution. This can also include, the testator’s competency, and the presence of undue influence or fraud. However, as with any legal matter, particularly one as complex as challenging a will, it is best to seek the guidance of a qualified estate planning and probate lawyer. The lawyer can provide invaluable assistance in the legal process. This helps to ensure that the rights and interests of the pretermitted child are effectively represented. Kania Law Office is experienced in representing clients who may need to challenge a will or who have other probate or estate issues in Oklahoma. Call Kania Law Office at (918) 743-2233 or reach out online.