Meaning
First, it is important to parse the language correctly. It means:
(1) Every child born after the decease of the testator who is not a devisee or legatee (usually because the mother was pregnant at the time of death, although not always), shall be entitled to the same portion of the estate, real and personal, as he would be if the deceased were intestate.
and
(2) Every child of the deceased not named or referred to in his will, if this child is not a devisee or legatee shall be entitled to the same portion of the estate, real and personal, as he would be if the deceased were intestate.
and
(3) Every descendant of a predeceased child of the deceased not named or referred to in his will, if this descendant is not a devisee or legatee shall be entitled to the same portion of the estate, real and personal, as he would be if the deceased were intestate.
This appears to say that a person making out a will in NH must
explicitly disinherit any children or grandchildren or great
grandchildren, otherwise they can claim part of the estate "as though
the testator was intestate". Is that right? Seems kind of crazy. What
if the person has a child they do not know about? Then they are really
screwed aren't they
Normally, one can disinherit a child simply by stating at the beginning of a Will, I have the following "children" including the disinherited child, and then not making a disposition in favor of that child elsewhere in the Will.
Purpose
There are three main circumstances that this provision is intended to address:
1. The afterborn child.
Suppose you wrote a will as you were required to do in basic training before being shipped off to Vietnam in 1969 when you were unmarried and had no children, and you leave everything to your sister (who survives you) in the Will. You marry, have seven kids, and survive your wife, but never get around to changing your will. Your sister and kids going through your effects in 2021 find your will in a dusty old box of your souvenirs from your military days along with your dog tags and a picture of you with your army buddies.
Does your sister take or your children? Under this rule, your children take rather than your sister. The theory is intent reinforcing. It is more likely that you forgot that you had a will that needed to be revoked or didn't get around to writing a new one to reflect your post-paternity intent than it is that you intended to disinherit your children in this backhanded way.
2. The forgotten child.
It applies to cases when someone suffering mild dementia leaves out the name of a child when writing a new will, perhaps forgetting to tell their lawyer the full family tree, despite not actually meaning to disinherit them in a conscious way.
3. The unknown child.
You have an affair with a women in Vietnam while you are stationed there and after you leave, unknown to you, she has a baby boy. She names you as the father on the birth certificate in Vietnam and a DNA test would confirm that this boy, who is now middle aged, was your son.
After you leave Vietnam, you marry, have seven kids and survive your wife. You write a will stating all to wife, and give each of your seven children a one share, mentioning each one by name. After your seventh child from your current wife is born, you are surgically sterilized and have no more children, and then write a will.
The law conclusively presumes that you would have provided for your unknown son in your will if you had known he existed and that equity causes what should have been done to be considered done. It cannot be drafted around in general terms.
Most people would not say that "they are screwed" by having to give a share equal to their own shares to an unknown half-sibling who never got child support and never got to know his or her dad. That's pretty harsh and that's what the New Hampshire legislature thought when it wrote the law.
It really isn't all that crazy at all to presume that a parent intended to be fair towards afterborn, forgotten, and unknown children.
This is considerably more testator friendly than the law of many states in Mexico, for example, which only permit you to disinherit a child if there is good cause to show that the child has expressly disrespected you in some what that justifies the disinheritance, or in the medieval inheritance laws of England that did not permit a parent to disinherit a child.
Discussion From A Recent Case On Point
A 2021 case from New Hampshire discusses and interprets the law:
The purpose of the statute is to prevent a mistake or unintended
failure by the testator to remember the natural object of his or her
bounty. When a child is not designated as a devisee or legatee in the
testator's will, the naming of or reference to the child in the will
establishes a conclusive inference that the testator's failure to
provide for him was not the result of mistake or forgetfulness. The
statute is therefore not a limitation on the power to make
testamentary dispositions but rather is an attempt to effectuate a
testator's presumed intent. It prevents forgetfulness, not
disinheritance. The statute does not create merely a presumption that
pretermission is accidental, but a rule of law. This rule of law is
conclusive unless there is evidence in the will itself that the
omission was intentional.
To be deemed a pretermitted heir in New Hampshire, the child must not
be named in the will, referred to in the will, or be a devisee or
legatee under the will. We have previously interpreted the phrase
"named or referred to" to require clear evidence that the testator
actually named or distinctly referred to the heir personally, so as to
show that the testator had the heir in mind."
The respondent acknowledges that “no children of Marie were named as
beneficiaries” in her will (a pretermitted heir cannot be a devisee or
legatee of the will), and, as the probate division stated, the will
“fails to specifically name the testator's son, Christopher, in any
way,” (a pretermitted heir cannot be named in the will). Consequently,
for the petitioner not to be a pretermitted heir, he must be referred
to in his mother's will. We conclude he is not.
We understand the respondent to argue that Christopher Dow was
sufficiently referred to in the will because the respondent herself is
referred to as a “daughter-in-law,” which indicates that she “was
married to a child of Marie Dow ... and that Marie did not intend for
anyone other than Leslie Dow or the testator's granddaughter to take
anything under her will.” This is insufficient to demonstrate that the
omission of Christopher Dow from the will was intentional.
An indirect reference to the child is sufficient where the reference
demonstrates that the deceased had the child in mind when she made the
will, however, the naming of one person, however closely related to
another, without more, is no reference to that other. It is well
established that there must be a reference in the will to the child
himself. It is not sufficient to infer that the child was not
forgotten because a sibling or other relative was remembered in the
will. Here, although the will describes the respondent as a
“daughter-in-law,” and identifies a “granddaughter,” there is nothing
more that distinctly refers to Christopher Dow personally, so as to
show that Marie G. Dow had him in her mind.
As relevant to the identification of a “granddaughter” in the will, we
held in Gage that the naming of and reference to a grandchild was not
a sufficient reference to the grandchild's father, the testator's son,
to preclude application of the pretermitted heir statute to the
testator's will. The naming of a grandson and describing him as such,
is no reference to his father or mother.”. The same reasoning applies
here.
The identification of the respondent as a “daughter-in-law” is
similarly insufficient as a reference to the petitioner for purposes
of RSA 551:10. In Boucher, the testator's will bequeathed property “to
Marianna Lizotte, wife of my son Alphonse Lizotte.” We held that the
testator's son Alphonse Lizotte was not a pretermitted heir because
any naming of, or reference to, the heir, which demonstrates that he
was not out of the mind of the testator at the time of making his will
gives rise, under the statute, to a conclusive inference that the
testator's failure to provide for him was not the result of mistake or
forgetfulness.
Although Marie G. Dow described the respondent in her will as her
“daughter-in-law,” unlike the will in Boucher, there is no other
reference to, let alone naming of, the child to whom the respondent
was married.
We addressed an analogous argument regarding language of a
“son-in-law”. There, the testator's will named two of his children as
devisees, but did not name his other child, Evelyn. The testator's
will also named his son-in-law, Evelyn's husband, as executor. We
rejected the argument that “the reference in the will to the
testator's "son-in-law" showed that he had his daughter Evelyn in mind
when he drafted the will” and concluded that she was not sufficiently
referred to. Accordingly, we also reject the respondent's argument
here that the phrase “daughter-in-law” in Article Second demonstrated
that the testator had her son Christopher Dow in mind when she drafted
her will.
Nor can we conclude that Article Eighth's language, stating the
testator had “intentionally omitted to mention, or to devise or
bequeath or give anything ... to any person or persons other than
those mentioned in this my last Will and Testament,”
provides a sufficient indirect reference to the petitioner to
demonstrate that she had him in mind when drafting her will.
Although we have suggested that a reference to a class circumscribed
by the terms “children” or “issue” may be a sufficient recognition of
a child of the testator to exclude the child from the ambit of RSA
551:10, a reference to a class which may include children, such as
“heirs-at-law” or “next-of-kin” is not sufficient recognition.
Although the language in Article Eighth, expressing the intent to
disinherit “any person or persons other than those mentioned” in Marie
G. Dow's will, could be interpreted as “a reference to a class which
may include children, the fact that a referenced class may include
children does not provide clear evidence that the testator had her
“children” or “issue” — the petitioner and another son, collectively —
in her mind when she drafted her will.
In re Est. of Dow, 2019-0752, 2021 WL 199619, at *6–7 (N.H. Jan. 20, 2021) (citations and internal editorial indications omitted).
