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statuteappealtrialwill
appealtrialwilldivorce

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In re Estate of Livsey v. Wood, 183 P.3d 1038, 2008 OK CIV APP 45

Facts

Louis T. Livsey died testate, leaving a will that explicitly mentioned only one child, Larry Wayne Livsey, while excluding his other five children. The will stated that he had one child and did not desire any of his siblings to inherit. After the executor filed for summary administration, the omitted children objected, arguing that the will did not clearly express an intent to disinherit them. The trial court ruled against them, leading to the appeal.

Decedent died testate on February 16, 2001. Article II of Decedent's last will and testament dated January 17, 1996, declared: I hereby declare that I am divorced and have not remarried. I have one and only one child, a son named Larry Wayne Livsey. I have four living brothers and one living sister, namely Carl Livsey, Robert Livsey, Roy Livsey, Clarence Livsey and Estell Grecian.

Issue

Whether the testator intended to disinherit his five other children by omitting them from his will.

The issue on appeal is whether it is apparent from Decedent's will that he intended to disinherit his five other children by omitting them from his will.

Rule

Under 84 O.S.2001 § 132, if a testator omits to provide for any of his children in his will, the omission is presumed unintentional unless there is clear evidence of intent to disinherit.

When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section.

Analysis

The court analyzed the language of the will and determined that it did not contain strong and convincing evidence of the testator's intent to disinherit his other children. Unlike previous cases where the testator explicitly denied the existence of other heirs, Livsey's will only mentioned one child without addressing the others, leading the court to conclude that the omission was unintentional.

After reviewing the record, we hold Decedent's will does not contain the requisite strong and convincing language to evidence Decedent's intent to exclude his other five children from inheriting. In this regard, the instant case is distinguishable from Estate of Hester because in that case, the testator specifically denied the existence of members of a class to which the claimant belonged.

Conclusion

The court reversed the trial court's decision, holding that the omitted children were entitled to inherit from their father's estate as pretermitted heirs.

We therefore hold the trial court erred when it concluded Contestants had no rights as pretermitted heirs of the estate. The trial court's order is reversed and this matter is remanded for a determination of Contestants' shares of the estate as pretermitted heirs.

Who won?

The Contestants (the omitted children) prevailed because the court found that their exclusion from the will was unintentional, allowing them to inherit under the pretermitted heir statute.

The court found that Contestants' omission from Decedent's will appears to be unintentional, Contestants are entitled to share in Decedent's estate as if Decedent died intestate.

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