Heath Ledger executed a will in Australia and afterwards he had a child, Matilda. Because Matilda was not included in the will, in some jurisdictions it is possible that she could be excluded from receiving anything from Ledger’s estate. Matilda’s claim to the estate (and the total she stands to lose) is worth up to $20 million. After learning of the child’s birth, “Johnny Depp, Jude Law and Colin Farrell have shown their respect for the Australian actor who died too young and donated their sizeable earnings from the film, The Imaginarium of Dr Parnassus, to Heath Ledger’s three-year-old daughter (Matilda).”

In California, where a lawyer drafts a will that is later executed, and a child is born afterwards (defined as a “pretermitted” or “omitted child”), there is a statutory presumption the omission of the child was unintentional. Thus, the child may “receive a share in the decedent’s estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instrument.” California Probate Code § 21620. So in California, Matilda would take as if no other devise had been made under Heath Ledger’s will.

There are three statutory exceptions to the pretermitted child doctrine. The first is if the failure to provide for the child in the instrument was intentional, and that intention appears in the instrument. The second exception is if the decedent left substantially of the estate to the natural parent of the omitted child. The third exception is if the omitted child is otherwise provided for outside of the will and that intent is shown by statements of the decedent or from the amount of the transfer or by other evidence. If Heath Ledger’s will was probated in California, provided none of the exceptions apply, Matilda would likely be cared for despite the absence of her name in the will.

Filed under: Estate Planning of the Rich and Famous