Afterborn Children and Some Great Precatory Language – The Will of Philip Seymour Hoffman


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Philip Seymour Hoffman was a superb actor who died far too young (at age 46) on February 2, 2014.  His will was filed for probate in the Surrogate’s Court, New York County seventeen days later.  Why might a will be filed for probate that quickly?

You can read most of the will here if you acquire a free account. The document looks and reads as if it was created with the same Drafting Libraries software that we use at the college. Maddeningly, all of the dispositive dispositions are missing from this, the only copy I can find on the web (the will skips from Article Third to Article Sixth) but the Daily News and The New York Post both reported on Hoffman’s dispositive plan.  Apparently, Hoffman’s will, executed in 2004, leaves “much” of his estate to his girlfriend, Marianne (“Mimi”) O’Donnell who is  named executor.   Apparently it also creates a trust for the benefit of his only then-living (non-marital) child, Cooper.

The probate petition merely notes that Hoffman’s estate is valued in excess of $500,000 but I’ve read estimates that value his estate between $35 and $55 million.  If O’Donnell does in fact inherit most of the estate, there will be a hefty estate tax.  In 2014, the federal estate tax exemption is approximately $5.3 million and the maximum tax rate is 40%, so Hoffman’s estate could face taxes starting at almost $12 million.  And then there is the New York State estate tax as well.

If Hoffman and O’Donnell had been married, his estate could have taken a marital deduction for the value of all property that passed to his surviving spouse.   Then, there could have been zero estate taxes at Hoffman’s death!

After Hoffman signed his will, he had two more non-marital children with Mimi.  His daughters, Tallulah and Willa are known as “pretermitted” (or “afterborn” children).  New York law on pretermitted children is very complicated, but it is very possible that all three children may end up dividing Cooper’s share under that law or perhaps under the language in the will itself (if Hoffman made a “class gift” to his children rather than naming Cooper specifically).

Hoffman’s will has some wonderful “precatory language”.  Article Twelfth provides:

It is my strong desire, and not direction to my Guardian, that my son, COOPER HOFFMAN be raised and reside in or near the borough of Manhattan in the State of New York, or Chicago, Illinois, or San Francisco, California, and if my Guardian cannot reside in any of such cities, then it is my strong desire, and not direction, that my son, COOPER HOFFMAN, visit these cities at least twice per year throughout such guardianship. The purpose of this request is so that my son will be exposed to the culture, arts and architecture that such cities offer.”·

Generally, precatory language (words of “wish, hope or desire”) is not legally enforceable.  Lawyers use mandatory language (“shall or “must”) when they intend will clauses to be enforceable.

Still, I think it is beautiful that some of  Hoffman’s last wishes were to expose his son to what he considered good places on earth – cities with culture, arts and architecture.  Do you agree with his choice of cities? Interestingly, he did not include Los Angeles or Miami or Philly or Dallas or many other of the largest cities in the country.  He did, however, specify Manhattan as opposed to anywhere else in the City!  Cool.





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