Law of Wills, 2016A

does the will contain anything indicating that he intended the statute should not have its full
operation. The presumption must be indulged that he knew the law and had the provisions of this
statute in mind when making his will. Lurie v. Radnitzer, 166 Ill. 609, 46 N.E. 1116, 1118. The
following language of this court in the case last cited might also be aptly applied to the present case:
‘It may be observed, also, that the testator could not know that the child would be born alive. He
did know, however, as it must be held, that if he made no provision for the child, and did not by the
will show an intention to disinherit it, it would, if born alive, receive its due share, under the statute
making provision in such cases.’ Viewed in this light, the testator, Leslie E. Miner, by his will
provided for his wife under any and all circumstances and also for his unborn child in the event such
child should be born alive and survive the testator.
We are of the opinion that it does not appear by the will in this case, when properly construed, that
it was the intention of the testator to disinherit the child, Sandra Louise Miner, born subsequent to
the time the will was made. There is nothing in the case of Hawkins v. McKee contrary to the
conclusion we have reached in this case.
Decree affirmed.
Notes and Questions
1. Parents are legally obligated to provide financial support for their children. Therefore,
noncustodial parents must pay child support. Nonetheless, that duty ends when the parent dies.
Since children do not have a right to inherit from their parents, their parents can disinherit them.
However, should parents be permitted to disinherit minor and disabled children? What are the pros
and cons of the majority approach which allows parents to disinherit their children regardless of
their youth or disability?
2. What are the pros and cons of the Uniform Probate Code’s approach to the omitted child
problem?
3. Should parents be required to state reasons why they are disinheriting their children?
4. In light of the Hodel decision discussed in Chapter Seven, is Louisiana’s forced heir statute
unconstitutional? Is there a difference between prohibiting a person’s property from being disposed
of under the intestacy system and requiring that a portion of the person’s property be disposed of
under the intestacy system?
5. In all jurisdictions the spouse is entitled to a share of the decedent’s estate whether he or she
leaves a will or dies intestate. Therefore, a person cannot disinherit his or her spouse. In light of that
fact, should a person be able to disinherit his or her minor and disabled children?
6. The Hedlund court found that the father did not intend to disinherit the child born after the
execution of the will. At the time the will was executed the testator’s wife was pregnant, so he knew
about the child’s impending birth. However, he failed to make provision for the child in the will.
What are arguments in favor of finding that the testator intended to disinherit the afterborn child?
What are arguments in favor of finding that the testator did not intend to disinherit the afterborn
child? The court made a distinction between cases involving a testator who had living children at the
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