The Oklahoma Bar Journal November 2024

and they were also not provided for as a separate, designated class. 18 Instead, the will left the majority of the property to the testator’s granddaughter and the residue of the estate to “all relatives.” 19 Shepherd held that a provision in the will leaving the residue of the estate to “all relatives” was sufficient to provide for the testator’s children by class, and therefore, the omitted child statutes did not apply. 20 The specificity of the described class should be analyzed when assessing omitted child issues. 21 If the testator provides for the child through a testamentary trust created by the will or through a will naming the child but pouring all assets into an inter vivos trust incorporated into the will, then the child was not omitted, and Section 132 does not apply. 22 This is true even if the trust is subsequently amended to provide nothing for the child. 23 Presumably, transfers to a child outside of the will (and not addressed within, or otherwise incorporated into, the will), such as a transfer on death account, life insurance policy or separate trust, would not constitute provision for the child under the will. 24 WAS THE OMISSION TO PROVIDE FOR THE CHILD IN THE WILL INTENTIONAL? If the testator’s omission to pro vide for a child was intentional, the child is not protected by Section 132. 25 Intent to disinherit the child must appear within the four corners of the will in strong and convincing language. 26 Extrinsic evidence is inadmissible unless the will is ambiguous on its face. 27 Even the disposition of the entire estate does not alone evince an intent to omit a child. 28

In James , the Oklahoma Supreme Court freshly observed that there are many ways a person can express the intention to omit to provide for a child in their will, including: (1) expressly state that the named child is to receive noth ing; (2) provide only a nominal amount for the child who claims to be pretermitted; (3) name a child, but then leave them nothing; (4) declare any child claiming to be pretermitted take nothing; or (5) specifically deny the existence of members of a class to which the claimant belongs coupled with a complete disposition of the estate. 29 Notwithstanding the broad reference to category (5) in James , other Oklahoma cases have held this could be insufficient or give rise to an ambiguity in the will if the testator falsely denied in the will that he had any children or any other unidentified children. 30 Still, Oklahoma case law con tains potential inconsistencies regarding a will that devises classes of omitted persons nothing or some minimal sum as a means of disinheritance. For example, in Bridgeford v. Chamberlin’s Estate , the Oklahoma Supreme Court held that a will limiting to $5 the share of any person who challenged the estate plan claiming to be a pretermitted “child” sufficiently evidenced the testator’s intent to disinherit the omitted child, stress ing that this was not a “‘simple’ no contest clause” provision, which would seemingly be invalid. 31 Bridgeford should be compared with the decision in In re Estate of Massey , where the court held that a “no contest” clause in a will capping at $1 the share of any person claiming

relationship in a “paternity pro ceeding” is governed by the Oklahoma Uniform Parentage Act (OUPA) . 10 Thus, evaluate the OUPA to assess whether the purportedly omitted child can establish status as a “child” of a decedent under Oklahoma law. This is especially true in genetic testing kit cases where the facts will, more likely, support a defense based upon a preexisting “presumed father” of the purportedly omitted child. 11 Further, because genetic testing kit cases lend themselves to the possibility that the supposed father will not be discovered for some time, perhaps even after the probate is closed, practitioners should be aware of the Oklahoma Supreme Court’s recent ruling in Matter of Est. of Georges regarding the limitations period to claim that a person qualifies as a “child.” 12 DID THE TESTATOR OMIT TO PROVIDE FOR THE CHILD IN THE WILL? The omitted child statute only applies if the testator failed to provide for the child in the will. 13 The statute does not secure a child with a minimum statutory share of the estate upon the parent’s death. 14 Recently, in In re Estate of James , the Oklahoma Supreme Court clarified that a child is not omitted where a testator intended to provide for the child in the will, but the bequest to the child fails or lapses. 15 A child is not omitted simply because they are not specifically named in the will. 16 The testator can provide for children in the will by name or by class. This issue was addressed recently in In the Matter of Estate of Shepherd . 17 There, the testator’s children argued that they were omitted because they were not provided for by name in the will,

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

16 | NOVEMBER 2024

THE OKLAHOMA BAR JOURNAL