Testament valid / children disinherited GEORGIA

Question

following scenario:

A man lives and dies in Georgia.

He served in the army and was located for a specific time in Germany. While he was there he was in a relationship with a woman. She became pregnant. The man signed the acknowledgement of paternity while the woman was still pregnant. He left Germany some weeks before his child would be born. A few days / weeks after his return he married in the states. He adopted the son of this fresh married wife and soon after the marriage she became pregnant with a girl.

So far as a background.

Now the man dies in the scenario. He created a testament will many years ago when his son in Germany was only a couple of years old. In this testament and will he mentioned that he is married and that he has 2 children (the adopted one and the girl).

In a paragraph you can find this: "Except as otherwise provided in this my LAST WILL AND TESTAMENT, I have intentionally anitted to provide herein for any other relatives or for any other person, whether claiming to be an heir of mine or not."

Questions:

• is the son from Germany disinherited by the sentence mentioned above?
• As it is his son (he is named as father in the birth certificate) and he didn´t name him in the testament and will: is this positive for the son to contest the will?
• if the family of the man wants the son from Germany to sign the acknowledgment of service and the son refuses: what will happen next?

Thank you!

Answer 1

Under Georgia inheritance law, when a person writes a will then, unless the will is proven invalid, the provisions of the will are followed. If a person dies without a will, then the laws of intestate succession apply, whereby potentially all children receive a share of the estate. The courts will presumably interpret "anitted" in the will to mean "omitted". The son from Germany is not necessarily disinherited by the sentence. The outcome depends on the provisions stating who will receive what portion of the estate. Typically, a will would say e.g. "I bequeath my stuff to my son Billy Rae and my daughter Becky Sue", so the fact of omission of Karl Johan suffices to not entitle Karl Johan to a share. If the will specifies "my two children", then there is an opportunity for litigation, since "my children" might be interpreted to mean "my two natural issue", or "the two whom I treated as my children, one having been formally adopted" (who would be entitled to a share under Georgia law – adoption is as thick as blood under the law).

On the third hand, if the will designates as beneficiaries "all of my children whether by lineal descent or by adoption", Karl does fall into that category, however, Karl's sister has been explicity excluded by that sentence, likewise his mother, aunt etc.

Karl can contest the will, but whether it would benefit him to do so depends on what the will actually says. The consequences of refusing to sign an acknowledgment of service are hard to assess, but it will at the very least draw out the process. However, under Georgia law, it does mean that you agree to the terms of the will and do not contest it. So, if Becky Sue is the nominated executor and has signaled her intent to ignore Karl, in signing the acknowledgment of service, Karl has indicated that he'll abide by her decisions. Therefore, Karl should not sign and should lawyer up to contest the will or choice of executor (and Karl should hire a Georgia attorney to do this, since German inheritance law i different).

Answer 2

Every U.S. state allows you to disinherit your children.

Many U.S. states provide (in what is probably the majority rule) that if a child not provided for in a Will has to be identified by name or other adequate description (which the language in this Will would not meet) is entitled to the same share as other children provided for in the Will. See, e.g., a Law.SE analysis of New Hampshire law on point.

Georgia does have a somewhat similar provision in the case of afterborn children, which can be deemed to be a partial revocation of a Will if the Will is not revised to reflect an intent to provide for that child. The relevant statute is Georgia Code § 53-4-48. Subsection (a) of that section states:

Except as otherwise provided in Code Section 53-4-49, the marriage of the testator, the birth of a child to the testator, including a posthumous child born within ten months of the testator's death, or the adoption of a child by the testator subsequent to the making of a will in which no provision is made in contemplation of such event shall result in a revocation of the will only to the extent provided in the remainder of this Code section.

In this case, however, since the German child is not an afterborn child and was not unknown to the testator (i.e. to th person who wrote the Will), Georgia's law does not amend the Will to reflect this omission.

is the son from Germany disinherited by the sentence mentioned above?

As noted by user6726, the failure to affirmatively provide for the German child is what disinherits that child, not the sentence quoted above.

As it is his son (he is named as father in the birth certificate) and he didn´t name him in the testament and will: is this positive for the son to contest the will?

Not really. There is not indication from the facts of the question that the omission of the German child from the will was due to the incapacity of the person writing the Will at the time that the Will was written. Given his formal acknowledgment of paternity, there is every reason to believe that he knew that he has a German child at the time and intentionally omitted that child, rather than doing so because due to dementia he didn't know who his children were.

if the family of the man wants the son from Germany to sign the acknowledgment of service and the son refuses: what will happen next?

There is no context in the question for this statement. Who is serving the German child with what?