When drafting a will, or any other estate planning document for that matter, the most important job of the attorney is to accurately depict the client’s intentions. However, the Nebraska Supreme Court's opinion in In Re Estate of Brinkman, 308 Neb. 117 (2021) found a “patent ambiguity” in the language of a decedent’s will. As such, the court provided its interpretation based on legal principles and possibly devoid of the testator’s intention. The dispute before the court involved two children of the testator and whether or not one of them was disinherited by their late father.
The decedent passed on December 23, 2016, leaving two children. His will named the mother of his younger child as personal representative and only mentioned their child, Seth, by name. No mention was made in the will as to decedent’s elder child, Nicole, who is a half sibling of Seth. The first article of the will sets out to define “children” and “issue” as they are used throughout the instrument. The express language states: “The references in this Will to my ‘children’ and/or my ‘issue’ shall include my son, SETH MICHAEL BRINKMAN, and all children of mine born or adopted after the execution hereof.” Seth and his mother argued that this language is not ambiguous and expressly disinherited Nicole, whereas Nicole argued, and the county court agreed, that the provision was patently ambiguous and that she was included as a descendant of the decedent. On appeal, the Supreme Court of Nebraska affirmed the county court’s ruling.
Reading this provision plainly supports the inference that the decedent created a class of beneficiaries, his “children and/or issue” and established parameters to determine members of the class (i.e. “born or adopted after the execution [of the will].”) Another inference may be drawn that an express exception to the rules of determining membership was made for Seth by specifically referring to him as a member. On the other hand, the county court’s interpretation that “such terms do not clearly disinherit Nicole” relies on “definitions of ‘include’” as well as its own reasoning that “to include is not to exclude.” To the court, Seth was a child born out of wedlock and therefore, naming an individual in the provision only served to expand the normally accepted definition of “children” and “issue.” This finding is contradicted by Nebraska Revised Statute § 30-2209, which states the term “child” excludes stepchildren, foster children, grandchildren, and any more remote descendants. The same statute also defines “issue” as “descendants of all generations, with the relationship of parent and child … determined by the definitions of child and parent contained in the Nebraska Probate Code.” So the question remains, where do those definitions purport to exclude a child born out of wedlock?
Interestingly enough is that the court does not discuss the implications of § 30-2309 which appears to be the only section that further defines “child” as used in the Nebraska Probate Code and mentions children born out of wedlock. However, the court’s decision to refrain from referencing this section may be justified because the opening sentence expressly states that it is for purposes of “intestate succession” which is not applicable since it is the terms of decedent’s will at issue. The Nebraska Supreme Court then bolstered the lower court’s reasoning with the plain language of Article V of decedent’s will, wherein the decedent left the residue of his estate to his “issue, per stirpes.” The court then inferred that decedent’s use of the term “issue” supports the lack of his intention to disinherit Nicole based purely on the statutory definition of “issue” mentioned above.
Finally, the court references Article VII of decedent’s will which serves as a catch-all provision in the event no beneficiary survives him, dictating that the assets be distributed as if he had died intestate (i.e. to his heirs at law). The court reasoned that the language of Article VII supports an inference that the decedent knew Nicole would inherit as an heir by operation of law if Seth predeceased him without issue. This reasoning has one major flaw, specifically, that it implies Nicole is included as decedent’s issue under Article V but is not his issue with respect to triggering Article VII. Although the court is hesitant to hold that a child has been disinherited absent express language, the Nebraska Supreme Court’s reasoning cannot hold water. Moreover, does Article I’s attempt to define “children” and “issue” not support an inference that decedent had intentionally excluded Nicole from that definition? Either way, this case serves to show that drafting a will requires more care and attention than just any attorney can provide.