Disinheriting an Heir – To Include Is Not To Exclude.

A recent case out of Nebraska dealt with a question whether a deceased father intended to disinherit his daughter in his will. The case, In re Estate of Michael R. Brinkman, 308 Neb 117 (2021), shows us the importance of clear and unambiguous writing in legal documents, including a will.

Michael Brinkman died in 2016 survived by two children, Nicole and Seth. Michael’s did not mention Nicole by name in his will. Nicole claimed that she was entitled to one-half of Michael’s estate despite the omission.

Michael’s will stated in part:

“ARTICLE I. The references in this Will to my “son” refer to my son, SETH MICHAEL BRINKMAN. 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.” . . . .

ARTICLE V. I give the residue of my estate to my issue, per stirpes. . . . .”

Nicole claimed that the language in the will was ambiguous regarding the term “issue.” Nicole argued the term “issue” included both her and Seth. Seth countered that the will was not ambiguous and that it disinherited Nicole.

The Nebraska county court agreed with Nicole that the will was ambiguous as to whether Michael intended to disinherit her. The court ruled that the will language did not disinherit Nicole, because it did not clearly exclude her. Simply stated, to include is not to exclude. The county court determined that Nicole was entitled to a share of Michael’s estate as one of Michael’s issue.

On appeal, the Nebraska Supreme Court focused on the words used in the will to include Seth by name, but not Nicole, and the residue clause leaving the residue of the estate to Michael’s “issue” equally.

The Court held that the use of “issue” did not exclude Nicole simply because only Seth was included in the meaning of the word “children.” The Court noted that to include someone within a class is not to exclude another from that class. The Court concluded: “No express statement disinherits Nicole or otherwise provides that she not receive from the estate.”

Courts will typically rule against disinheriting an heir when the language of a will is capable of more than one interpretation . One or two poorly chosen words, or words inartfully used can create sufficient ambiguity to defeat a will maker’s intentions. The Brinkman case illustrates the importance of careful will drafting and clear expression of one’s wishes to avoiding a will contest later.

You can read the Nebraska Supreme Court’s opinion here.