This opinion is subject to revision before final

publication in the Pacific Reporter.

2013 UT 46

IN THE

SUPREME COURT OF THE STATE OF UTAH

———————

In the Matter of the ESTATE OF WILLIAM J. HANNIFIN

———————

MAX HILL, as Special Administrator of the Estate,

Appellant,

v.

WILLIS NAKAI, individually and as 

Personal Representative of the Estate,

Appellee.

———————

No. 20111125

Filed August 2, 2013

———————

Third District, Salt Lake

The Honorable Royal I. Hansen

No. 103900808

———————

Attorneys:

Charles M. Bennett, Salt Lake City, for appellant

Donald J. Winder, Jerald V. Hale, Salt Lake City, for appellee

———————

JUSTICE LEE authored the opinion of the Court, in which 

CHIEF JUSTICE DURRANT and ASSOCIATE CHIEF JUSTICE NEHRING

joined.

JUSTICE DURHAM filed a dissenting opinion, 

in which JUSTICE PARRISH joined.

———————

JUSTICE LEE, opinion of the Court:

¶1 Max Hill, in his capacity as Special Representative of the 

Estate of William J. Hannifin, appeals from a district court order 

awarding Willis Nakai a portion of that estate. Though Nakai is 

neither biologically nor legally related to Hannifin, the district 

court determined that he was nonetheless entitled to inherit under 

the doctrine of equitable adoption. 
IN RE ESTATE OF WILLIAM J. HANNIFIN

Opinion of the Court

2

¶2 We reverse. We hold that the doctrine of equitable adoption, first recognized in In re Williams’ Estates, 348 P.2d 683 (Utah 

1960), has been preempted by the detailed provisions of Utah‘s 

Probate Code. See UTAH CODE §§ 75-1-101 to -8-101. And, because 

Nakai does not qualify under the Probate Code‘s intestate succession provisions, we reverse the decision entitling him to inherit 

from Hannifin.

I

¶3 Willis Nakai is a member of the Navajo Nation. He was 

raised by his aunt from infancy to age five or six. After her death, 

he attended a series of boarding schools, though his biological 

parents were living and married to each other throughout his 

childhood. At one of these schools, the Intermountain Indian 

School (IIS) in Brigham City, Utah, Nakai met Father William J.

Hannifin, an Episcopal priest. 

¶4 In the summer of 1958, Hannifin had occasion to visit the 

Navajo Reservation near Aneth, Utah, where Nakai and his family 

were then residing. During this visit, Hannifin had a conversation 

with Nakai‘s mother and maternal grandparents, during which 

Nakai‘s mother asked Hannifin to take Nakai—who was fourteen 

years old at the time—and raise him as his own child. Hannifin

agreed. Because Nakai‘s father was frequently away from home 

and not involved in family matters, he was not a party to this 

conversation. 

¶5 Hannifin assumed this parental role when Nakai returned 

to IIS the following school year. Though Nakai subsequently 

made brief yearly visits to see his biological family, his parents 

did not assert parental control over him and did not support him

financially. Instead, from that point forward, Hannifin provided 

Nakai an allowance, food, clothing, medical care, transportation, 

and emotional support. He monitored Nakai‘s schoolwork and 

generally provided for Nakai‘s health and welfare. Though Nakai 

initially boarded at IIS and visited Hannifin only on weekends 

and holidays, he began living with Hannifin full time after he developed health problems during his secondary education and continued to live there throughout his secondary and college education. 

¶6 From Nakai‘s return to IIS in 1958–59 until the end of Hannifin‘s life, the two referred to each other as father and son and 
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Opinion of the Court

3

held themselves out to the community as such. Even after Nakai 

married and moved out of Hannifin‘s house, he and Hannifin 

maintained a close relationship, with Hannifin providing Nakai 

counsel and acting as if he were grandfather and greatgrandfather to Nakai‘s children and grandchildren. Hannifin even 

arranged for many of his assets, including his life insurance policy, bank accounts, and investment accounts to be transferred to 

Nakai upon Hannifin‘s death. 

¶7 Yet when Hannifin died in 2009, he was intestate and had 

no spouse and no biological descendants. Nakai, alleging that he 

and his family were Hannifin‘s only known heirs and devisees,

petitioned to be appointed as Personal Representative of Hannifin‘s estate, which petition the district court granted. 

¶8 Max Hill, acting on behalf of himself and nineteen other 

collateral relatives of Hannifin, petitioned the court to be appointed Special Administrator of Hannifin‘s estate for the limited purpose of contesting Nakai‘s claim to the estate. The court granted 

Hill‘s petition and, following a bench trial, held that under the 

doctrine of equitable adoption, Nakai was entitled ―to inherit

from Father Hannifin‘s estate as though he were his legally 

adopted son.‖ The district court also awarded Nakai attorney fees, 

which Hill opposed on the grounds that Nakai was not eligible to 

serve as Personal Representative. 

¶9 Hill filed this appeal, arguing that Utah‘s enactment of the 

Probate Code preempted the common law doctrine of equitable 

adoption. That is a question of law, which we review de novo. See 

Navajo Nation v. State (In re Adoption of A.B.), 2010 UT 55, ¶ 21, 245 

P.3d 711.

II

¶10 We have long recognized the axiom ―that our precedent 

must yield when it conflicts with a validly enacted statute.‖ Patterson v. Patterson, 2011 UT 68, ¶ 37, 266 P.3d 828. Statutes ―may 

preempt the common law either by governing an area in so pervasive a manner that it displaces the common law‖ (field preemption) ―or by directly conflicting with the common law‖ (conflict 

preemption). OLP, L.L.C. v. Burningham, 2009 UT 75, ¶ 16, 225 P.3d 
IN RE ESTATE OF WILLIAM J. HANNIFIN

Opinion of the Court

4

177.1 Preemption may be indicated expressly, by a stated intent to 

preempt the common law. ―More often,‖ however, ―explicit preemption language does not appear, or does not directly answer 

the question. In that event, courts must consider whether the . . . 

statute‘s structure and purpose or nonspecific statutory language 

nonetheless reveal a clear, but implicit, pre-emptive intent.‖ Bishop v. GenTec Inc., 2002 UT 36, ¶ 9, 48 P.3d 218 (alteration in original) (internal quotation marks omitted).

¶11 We have relied on ―the federal model for determining 

whether federal law pre-empts state law‖ to determine ―whether 

a state statute pre-empts the common law.‖ Id.; see UTAH CODE

§ 68-3-2(1) (―The rule of the common law that a statute in derogation of the common law is to be strictly construed does not apply 

to the Utah Code.‖). Under that model, ―[f]ield preemption occurs 

when the scope of a statute indicates that [the legislature] intended [a statute] to occupy a field‖ in such a way ―as to make reasonable the inference that [the legislature] left no room for the [common law] to supplement it.‖ In re Adoption of A.B., 2010 UT 55, 

¶ 31 (internal quotation marks omitted). Conflict preemption, on 

the other hand, ―occurs where it is impossible . . . to comply with 

both [the common law] and [a statute], or where [the common 

law] stands as an obstacle to the accomplishment and execution of 

the full purposes and objectives of [the legislature].‖ Id. ¶ 33 (alteration in original) (internal quotation marks omitted).

¶12 This notion of conflict preemption is reiterated in the Probate Code. Though the Code provides that ―principles of . . . equity supplement its provisions,‖ UTAH CODE § 75-1-103, it also contains an express caveat that principles of equity may not be invoked where they are ―displaced by the particular provisions of 

th[e] code.‖ Id. A judge-made doctrine that conflicts with a statute 

is certainly ―displaced‖ by it.

2

 

1 See Daniels v. Gamma W. Brachytherapy, LLC, 2009 UT 66, ¶ 49, 

221 P.3d 256 (―A statute preempts a common law claim by specifically adopting a limitation or prohibition on a claim or by comprehensively addressing a particular area of law such that it displaces the common law.‖).

2 The argument that equitable adoption properly ―supplement[s]‖ the Code because it operates ―parallel with‖ it infra ¶¶ 
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Opinion of the Court

5

¶13 We find the Code to displace the doctrine of equitable 

adoption recognized in Williams’ Estates. In that case, a couple 

took a child into their home, agreeing with the birth mother that 

they would adopt the child and ―raise, care for and treat [her] in 

all respects as their own child.‖ In re Williams’ Estates, 348 P.2d 

683, 685 (Utah 1960). Though they never formally adopted the 

child, they did raise her as their own. Id. at 684. And when the 

couple died intestate, the child claimed that ―she should be 

awarded the same share of the Williamses[ ̳] estate as she would 

have been entitled to had they . . . fulfilled their agreement to 

adopt.‖ Id. We agreed that a child in that situation could possibly 

inherit through intestacy, noting that 

 

39–40, is an effective acknowledgement that the two cannot be 

reconciled. A doctrine that operates outside (parallel to) the Code 

cannot be seen as a supplement to it. That is not to say that no 

provision of the Probate Code is amenable to supplementation. It 

is merely a recognition that the provisions prescribing who can 

take through succession (and in what order) are not. They are 

clear and detailed and leave no room for common-law adaptation. 

See Riddell v. Edwards, 76 P.3d 847, 855–56 (Alaska 2003) (recognizing that Alaska‘s Uniform Probate Code gives courts ―latitude to 

supplement statutory provisions with equitable principles‖ but 

deciding that ―the particular provisions of statutory law governing void and voidable marriages and accrual of allowances and 

share fully covered [the circumstances of the case] and affirmatively displaced the equitable remedy‖ sought (internal quotation 

marks omitted)). So the fact that we may have supplemented other parts of the Code in the past has no bearing on our decision in 

this case. See infra ¶ 40 (citing cases where we have purportedly 

―supplemented [the code] in . . . outcome-determinative ways‖). 

In any event, in none of these past instances have we supplemented the Code in a way that conflicts with it. See, e.g., In re Estate of 

Pepper, 711 P.2d 261, 263 (Utah 1985) (holding that a rule 60(b) motion can vacate an otherwise final closing order, a result that is 

specifically allowed under section 75-1-304‘s assertion that ―the 

rules of civil procedure, including the rules concerning vacation of 

orders and appellate review, govern formal proceedings under 

the [Probate Code]‖ (internal quotation marks omitted)).
IN RE ESTATE OF WILLIAM J. HANNIFIN

Opinion of the Court

6

[i]t is generally recognized that where a child‘s parents agree with the adoptive parents to relinquish all 

their rights to the child in consideration of the adopted parents‘ agreement to adopt such child, . . . and 

such agreement is fully performed by all parties connected with such contract except there is no actual 

adoption, the courts will decree specific performance 

of such contract and thereby award to the child the 

same distributive share of the adoptive parents‘ estate as it would have been entitled to had the child 

actually been adopted as agreed.

Id.

¶14 In such circumstances, we determined that ―[a] contract to 

adopt . . . may be proved by circumstantial evidence, but such evidence must be clear and convincing.‖ Id. at 684–85. Though we 

have not had occasion to opine on this doctrine since it was recognized, most other jurisdictions employing the doctrine have followed the same path, requiring claimants to prove the existence of 

an agreement to adopt. Modern Status of Law as to Equitable Adoption or Adoption by Estoppel, 122 A.L.R. 5th 205 (2012). Most also 

limit use of the doctrine to situations that benefit the equitably 

adopted child, meaning, for example, that the doctrine does not 

prevent the equitably adopted child from inheriting from natural 

parents, and typically cannot be used by an adoptive parent to inherit from the equitably adopted child. Id. Courts deem these and 

other similar restrictions proper ―since equitable adoption is only 

an equitable remedy to enforce a contract right, is not intended or 

applied to create the legal relationship of parent and child, with 

all the legal consequences of such relationship, [and] is [not] 

meant to create a legal adoption.‖ Id.

¶15 The Probate Code, enacted fifteen years after we embraced 

equitable adoption in Williams’ Estates, is in direct conflict with the 

doctrine in three principal respects: (A) Equitable adoption allows 

children who cannot satisfy the Probate Code‘s definition of 

―Child‖ to nonetheless participate in intestate succession as if they 

had. (B) Equitably adopted children can take by succession from 

both natural and adoptive parents—despite the Code‘s clear 

mandate to the contrary. (C) The doctrine adds confusion and 

complexity to our law‘s intestate succession scheme, in contraven-
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Opinion of the Court

7

tion of the Code‘s stated purpose of streamlining and clarifying

the distribution of a decedent‘s estate.

¶16 In light of these conflicts, the equitable adoption doctrine 

cannot be squared with the Probate Code; it is impossible to satisfy both the requirements of the Probate Code and the elements of 

equitable adoption.

3 This is a doctrine in conflict with the Code, 

which we therefore repudiate as preempted by statute.

4

A

¶17 At the time of our decision in Williams’ Estates, our intestate 

succession statutes did not define the terms ―child‖ or ―parent.‖

See UTAH CODE § 74-4-1 to -24 (1953). They did not distinguish

classes of children that could take by succession (such as natural 

and adopted children) from those that could not (like foster children, stepchildren, and grandchildren). The Probate Code 

changed the landscape by providing precise definitions of parties 

legally entitled to take by intestate succession. These provisions

displaced the open-ended system within which Williams’ Estates

was situated.5

 

3 Though we typically ―reconcile the common law with statutory 

law whenever possible,‖ see infra ¶ 36, here, for all the reasons 

discussed below, reconciliation is not possible. 

4 Though a number of states that have adopted the Uniform 

Probate Code have continued to endorse equitable adoption, see 

e.g., Poncho v. Bowdoin, 126 P.3d 1221, 1226 (N.M. Ct. App. 2005); 

Johnson v. Johnson, 617 N.W.2d 97, 101 (N.D. 2000), none of these 

states, to our knowledge, have considered the key question addressed herein—whether there are conflicts between the Code and 

the common law doctrine that sustain a finding of preemption. 

See, e.g., Calista Corp. v. Mann, 564 P.2d 53, 61 & n.18 (Alaska 1977) 

(accepting and applying the doctrine without any preemption discussion or analysis). And absent some analysis of this pivotal issue, these precedents are unhelpful. We look to other states‘ 

caselaw to help us analyze the legal questions before us, not as a 

statistical exercise of nose-counting.

5 Admittedly, the previous version of the Probate Code detailed 

the order in which different categories of takers took through suc-
IN RE ESTATE OF WILLIAM J. HANNIFIN

Opinion of the Court

8

¶18 The Probate Code provides that ―[a]ny part of a decedent‘s 

estate not effectively disposed of by will passes by intestate succession to the decedent‘s heirs as provided in‖ the Code. UTAH 

CODE § 75-2-101(1). Thus, the Code establishes a detailed scheme 

that governs the priority by which certain classes of heirs are entitled to succeed to the decedent‘s estate. Under the Code, ―[a]ny 

part of the intestate estate‖ that does not pass to the decedent‘s 

spouse (because, for example, the decedent‘s spouse did not survive him) passes ―to the decedent‘s descendants per capita at each 

generation,‖ id. § 75-2-103(1)(a), and if no surviving descendants 

exist, then to the decedent‘s parent(s), id. § 75-2-103(1)(b). And if 

neither parent survived the decedent, the estate goes to the parents‘ descendants, if any, and then, if none exist, to the decedent‘s 

grandparents or the grandparents‘ descendants. Id. § 75-2-

103(1)(c)-(e).

¶19 The second group of takers, ―the decedent‘s descendants,‖ 

generally includes a decedent‘s children, ―with the relationship of 

parent and child . . . being determined by the definition of child 

and parent contained in [the Probate Code].‖ Id. § 75-1-201(9). 

And according to the Code, a ―Child‖ is ―any individual entitled 

to take as a child under this code by intestate succession from the 

parent whose relationship is involved and excludes any person 

who is only a stepchild, a foster child, a grandchild, or any more 

remote descendant.‖ Id. § 75-1-201(5). ―Parent‖ similarly ―includes 

any person entitled to take, or who would be entitled to take if the 

child died without a will, as a parent under this code by intestate 

succession from the child whose relationship is in question and 

excludes any person who is only a stepparent, foster parent, or 

grandparent.‖ Id. § 75-1-201(33). And ―for purposes of intestate 

succession by, through, or from a person, an individual is the 

child of the individual‘s natural parents‖ and ―[a]n adopted individual is the child of the adopting parent or parents and not of the 

natural parents.‖ Id. § 75-2-114(1), (2).

¶20 By enacting a Probate Code with a specific definition of 

―child‖ that excludes those ―equitably‖ adopted, the legislature 

 

cession. See UTAH CODE § 74-4-5 (1953). But it did not define the 

proper members of each of these categories, and it was openended in that respect. See infra ¶ 38 n.2.
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Opinion of the Court

9

preempted common law doctrines that are in conflict with the results those definitions require.6 See Christensen v. Christensen (In re 

Estate of Christensen), 655 P.2d 646, 649 (Utah 1982) (deciding that 

because the Probate Code ―makes no mention‖ of a term that 

―figured prominently in prior statutes and case law‖ that the 

―omission must have been deliberate,‖ particularly ―[i]n a statute 

so carefully drafted‖ and determining that ―re-engraft[ment]‖ of 

that term ―by judicial decision‖ would be ―inappropriate‖). Under 

this scheme and according to these definitions, the only methods 

of determining who is a child for intestate succession purposes are 

legal adoption and natural parentage.7 And Nakai is neither Hannifin‘s legally adopted nor his natural child.8 The closest Nakai 

comes to any of the relations delineated in the Probate Code is to a 

 

6 See In re Estate of Peterson, 716 P.2d 801, 803 (Utah 1986) (refusing to allow a judgment creditor to be joined in probate court proceeding as an interested party because ―the Uniform Probate Code 

expressly limit[s] the categories of interested persons that may 

present claims‖ and the creditor was ―not among those designated‖).

7 Perhaps the doctrine of equitable adoption ―is not premised on 

our ability to judicially define the statutory term  ̳child‘ or  ̳parent.‖‘ See infra ¶ 39. But that does not at all answer the question 

before us. The fact that equitable adoption countermands the statutory definitions of ―child‖ and ―parent‖ does. Because the statute 

now provides these definitions, we can no longer define those categories as we see fit. The statutory definitions foreclose our ability 

to decide that ―justice require[s] awarding‖ a person that does not 

meet those definitions ―the same inheritance she would have received if‖ she did. See infra ¶ 39.

8 It is telling that under these definitions as well as under equitable adoption, Hannifin can never qualify as a ―parent.‖ Because, 

as Nakai argues, equitable adoption ―is not intended to create the 

legal relationship of parent and child . . . and does not effect a legal adoption‖, it can never be used in reverse to allow an ―adoptive‖ parent to take through intestate succession from an equitably adopted child. So, under the facts before us and as another example of the conflict between the Code and equitable adoption, 

not only is Nakai not a child, but Hannifin is also not a parent for 

purposes of intestate succession. 
IN RE ESTATE OF WILLIAM J. HANNIFIN

Opinion of the Court

10

foster child, which is a category specifically excluded from taking 

intestate. Yet he falls short even there. A foster child/parent relationship is one marked by legal rights and responsibilities, neither 

of which existed in this case. Nakai thus can have no claim under 

the Probate Code to a distribution through intestate succession.

¶21 It is thus impossible to comply with both the Probate Code 

and with the principles of equitable adoption. See In re Adoption of 

A.B., 2010 UT 55, ¶ 33 (stating that conflict preemption ―occurs 

where it is impossible . . . to comply with both [the common law] 

and [a statute]‖). Because Hannifin had neither a spouse nor children, the Probate Code requires that his estate pass to his parents 

or, if neither survived him, to his parents‘ descendants. UTAH 

CODE § 75-2-103(1)(a)-(c). If no takers exist in those categories, 

then his estate must past to his grandparents or, if none survived 

him, to their descendants. The statutory scheme makes this chain 

of distribution both clear and mandatory. And Hill and his fellow 

relatives qualify as takers in that chain. In contrast, equitable 

adoption requires that the estate pass to Nakai, a legal stranger to 

Hannifin, leaving nothing for Hill and the others. There is no way 

to reconcile the two different sets of requirements.

B

¶22 Another intractable conflict between the Probate Code and 

equitable adoption stems from section 75-2-114(1)-(2), which 

states that ―for purposes of intestate succession . . . [a]n adopted 

individual is the child of the adopting parent . . . and not of the 

natural parents.‖ This section operates to prohibit adopted children from taking by intestacy from both their natural parents and 

their adoptive parents. This is in direct contravention of the doctrine of equitable adoption, which is purely beneficial to the child 

and in no way alters the legal relationship between the claimant 

and the decedent or between the claimant and the biological parents. See infra ¶ 43.

¶23 At the time of Williams’ Estates, dual succession was permitted under our common law. In Benner v. Garrick (In re Benner’s 

Estate), 166 P.2d 257, 258 (Utah 1946), we recognized that principle 

while rejecting the argument that our succession statute foreclosed it. In so doing, the court concluded that ―a great array of 

authority convinces us that the laws of adoption do not so limit 
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Opinion of the Court

11

[the succession statute] as to cause a child, on being adopted, to 

lose its right to inherit from its natural parent.‖ Id. The referenced 

succession statute provided only that ―[i]f the decedent leaves no 

surviving husband or wife, but leaves issue, the whole estate goes 

to such issue, and if such issue consists of more than one child living, or one child living and the issue of one or more deceased 

children, then the estate goes in equal shares to the children living, or to the child living and the issue of the deceased child or 

children by right or representation.‖ UTAH CODE § 101-4-5(2) 

(1946). The rule allowing dual inheritance existed only in the

common law; it was never codified.

¶24 Thus, at the time of Williams’ Estates, the Utah Code posed 

no barrier to a ―beneficial‖ law of equitable adoption that could 

establish a right of succession from an equitably adopting parent 

without foreclosing any succession rights on the part of or flowing 

from natural parents. But when our legislature enacted the Probate Code fifteen years later, it expressly foreclosed that possibility. It did so by enacting section 114, which prevents a child from 

inheriting from two sets of parents. See UTAH CODE § 75-2-114(1)-

(2) (―[F]or purposes of intestate succession . . . [a]n adopted individual is the child of the adopting parent . . . and not of the natural parents.‖). That is a significant legislative development in our 

law in the Probate Code and one that is in direct conflict with equitable adoption.

¶25 True, section 114 is more explicit in its rejection of the ruling in In re Brenner’s Estate than in its overriding of the broad 

principle of Williams’ Estates. But the fact that the legislature could 

have preempted Williams’ Estates more explicitly is of no consequence. In any matter of statutory construction of any consequence, it will almost always be true that the legislature could 

have more clearly repudiated one party‘s preferred construction. 

But the converse is almost always true as well, as it is here: Just as 

the legislature could have explicitly discarded the doctrine by 

name, it also could have expressly preserved it, as the California

legislature did. See CAL. PROBATE CODE § 6455 (―Nothing in this 

chapter affects or limits application of the judicial doctrine of equitable adoption for the benefit of the child or the child‘s issue.‖). 

¶26 The legislature‘s failure to speak more clearly does not 

provide a basis for us interpreting the unambiguous words that it 
IN RE ESTATE OF WILLIAM J. HANNIFIN

Opinion of the Court

12

did use. See Badaracco v. C.I.R., 464 U.S. 386, 398 (1984) (―Courts 

are not authorized to rewrite a statute because they deem its effects susceptible of improvement.‖). And those words are plenty 

clear enough. The Probate Code expressly forecloses a core element of the doctrine of equitable adoption (dual succession).9 That 

is more than enough to sustain the conclusion that the Code is in 

conflict with the common law doctrine, and thus that the latter is 

preempted. 

¶27 We do not and cannot require the legislature to use magic 

words or express references to our precedent to preempt it. So it is 

no matter that ―[n]o provision in the Probate Code mentions . . . 

equitable adoption‖ or that ―the legislature has not specifically 

abolished equitable adoption,‖ as Nakai claims. We look at the 

words the statute does use, the results those words require, and 

the scheme that they create to decide whether our precedent has a

continuing place in the law. See Bishop, 2002 UT 36, ¶ 9; Burningham, 2009 UT 75, ¶ 16. And here the answer is clear. Dual succession is an inherent element of equitable adoption. Yet dual succession is expressly foreclosed by statute. The conflict is palpable and 

explicit. Again, it is impossible to comply with both the Probate 

Code and with the judge-made doctrine of equitable adoption, as 

the former prohibits what the latter requires. And in light of this 

conflict, our only option is to abandon the doctrine of equitable 

adoption.

 

9 Our holding is not that section 114 contains ―a one-person-oneinheritance rule.‖ See infra ¶ 44. Rather, the statute establishes a 

one-set-of-parents inheritance rule. And equitable adoption treats 

an equitable adoptee as one entitled to inherit from a decedent as 

though she were the biological or adopted child of the decedent 

without cutting off inheritance rights from actual biological or 

adoptive parents. See infra ¶ 43. That treatment, moreover, runs 

afoul of Section 114. Our construction of that section, and of the 

other intestacy provisions of the Probate Code, does nothing to 

alter the ability of ―individuals to inherit from a wide range of relatives.‖ See infra ¶ 44. It simply gives proper respect to the word 

―relative.‖
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Opinion of the Court

13

C

¶28 Such abandonment is the only way to maintain fidelity to 

the objectives expressly detailed in the Probate Code. See Bishop, 

2002 UT 36, ¶ 9 (stating the court considers a statute‘s stated objective in determining preemptive intent). As the Code indicates, 

its detailed intestate succession scheme is designed:

(a) To simplify and clarify the law concerning the affairs of decedents, missing persons . . .;

(b) To discover and make effective the intent of a decedent in distribution of his property;

(c) To promote a speedy and efficient system for administering the estate of the decedent and making 

distribution to his successors;

(d) To facilitate use and enforcement of certain trusts; 

and

(e) To make uniform the law among the various jurisdictions.

Id. § 75-1-102(2). 

¶29 The doctrine of equitable adoption undermines these objectives by introducing uncertainty, complexity, and inefficiency—

the very evils the Probate Code was designed to avoid.

¶30 Though the equitable adoption doctrine has been on the 

books for more than fifty years, neither we nor any other Utah 

court has given it any dimension. This boundary-less quality is 

another point of incompatibility with the Probate Code, which 

values predictability and stability. Were we to retain the doctrine, 

we would have to provide predictable definition to the otherwise 

vague standard announced in Williams’ Estates. For instance, in 

future cases we would surely be called on to decide questions 

along the following lines: Must both biological parents be party to 

the agreement to adopt? What kind of evidence is required to 

prove the existence of an agreement to adopt? How long must the 

adoptive parents treat the child as their own before the child qualifies for intestate succession? Just how limited must the child‘s re-
IN RE ESTATE OF WILLIAM J. HANNIFIN

Opinion of the Court

14

lationship with his biological family be? How completely must the 

natural parents relinquish ―all their rights to the child‖?10

¶31 In working to populate these fields, we would only compound the problem we identify today. With each new contour 

added to the standard, we would inevitably substitute our own

policy choice for that expressed by the legislature when it enacted 

the Probate Code. We cannot condone such substitution.

11 In the 

Code the legislature decided, as a policy matter, that efficiency 

and predictability are best served by distributing the estates of 

those that die intestate in accordance with a prediction as to the 

preference of the average intestate decedent.

12 And that prediction 

follows biological and legal relationship lines.13 We have no au-

 

10 The dissent suggests that equitable adoption doesn‘t conflict 

with the Probate Code because the statute‘s ―invit[ation]‖ to supplement the Probate Code with legal and equitable principles is 

evidence that ―the legislature evidently is willing to tolerate a degree of complication in furtherance of a just and equitable outcome.‖ See infra ¶ 46. But the legislature can be seen as making 

that determination only where it left room for such supplementation. Here it left no such room.

11 See Harper v. Lucas (In re Estate of Lucas), No. ADM 1327-03, 

2005 WL 674682, at *7–8 (D.C. Super. March 22, 2005) (―The legislature of the District of Columbia has . . . provided a comprehensive set of laws for intestate succession . . . . This Court is of the 

opinion that it should not use its equity power to disturb the District‘s statutory scheme. . . . Whether to permit inheritance by one 

who is neither the natural nor the adopted child of an intestate is a 

policy issue for the legislative branch.‖).

12 See UNIF. PROBATE CODE, art. II, pt. 1 gen. cmt. (1969) (stating 

that the Probate Code is a gap filler meant ―to reflect the normal 

desire of the owner of the wealth as to the disposition of his property at death‖); Joel R. Glucksman, Intestate Succession in New Jersey, Does it Conform to Popular Expectations?, 12 COLUM. J. L. & SOC.

PROBS. 253, 266 (1976) (stating that intestacy laws ―pattern what 

people desire to do in distributing an estate‖).

13 The question whether the decedent in this case ―would likely 

have preferred to leave his estate to an individual whom the decedent raised as his own child rather than to distant relatives,‖
Cite as: 2013 UT 46

Opinion of the Court

15

thority to second-guess that decision.14 Doing so would substitute 

our preference for that of the legislature. It would also override

the presumptive preference of the decedent, who is entitled to 

presume that absent a will his estate will pass in accordance with 

the detailed scheme enacted by the legislature, and not with the 

second-guesses of a court.15

¶32 Thus, equitable adoption ―stands as an obstacle to the accomplishment and execution of the full purposes and objectives of 

[the legislature]‖ in enacting the Probate Code. In re Adoption of 

A.B., 2010 UT 55, ¶ 33. The two cannot coexist. And when a 

 

infra ¶ 47, is a matter beyond our capacity to resolve on this record. As an appellate court we are in no position to engage in such 

speculation. And in any event the question is withheld from us by 

the terms of the Probate Code.

14 It is certainly true, as the dissent suggests, that ―the legislature 

can amend the statute to direct a different outcome in future cases‖ if it ―disapproves‖ of the way we tinker with its statutory enactments. See infra ¶35. But the availability of a legislative selfhelp remedy is of little consequence. We are tasked with interpreting the legislature‘s handiwork by our best lights. It is not enough 

to offer a merely plausible construction in the anticipation that the 

legislature will override us if we mistake its intent. 

It may be that ―[s]tate courts and state legislatures function in 

dialogue with one another.‖ See infra ¶ 35. But in this dialogue 

and in this context, when the legislature speaks, we must listen. 

We cannot properly speak over the legislature‘s voice on this matter. And though we may be free to ―call the attention of the legislature to statutes in need of clarification or modernization,‖ see 

infra ¶ 35, we should not force such changes on the legislature by 

judicial mandate.

15 The dissent posits that equitable adoption may represent the 

wishes of some decedents and may not prolong all estate proceedings. See infra ¶¶ 47–48. But this hedging is significant; it ultimately supports the conclusion that equitable adoption adds uncertainty and complexity to the intestacy scheme.
Cite as: 2013 UT 46

JUSTICE DURHAM, dissenting

16

statute and common law principle butt heads, the common law 

must yield.

III

¶33 We accordingly jettison the doctrine of equitable adoption 

as a vestige of a common-law friendly intestacy regime that has 

been overtaken by statute. Thus, we hold that the administration

of Hannifin‘s estate is subject to the express terms of the Probate 

Code, including terms governing matters of distribution and representation. We reverse and remand for further proceedings consistent with this opinion.

——————

JUSTICE DURHAM, dissenting:

¶34 I disagree with the majority‘s conclusion that it is ―impossible‖ to follow both the doctrine of equitable adoption and Utah‘s 

version of the Uniform Probate Code (Probate Code or Code). See 

supra ¶ 16.

¶35 State courts and state legislatures function in dialogue with 

one another and serve as checks on one another‘s power—

alternately reinforcing, calling into question, and even reversing 

the other‘s law-making activities. In the words of one commentator, we live in a ―world where common and statutory law are woven together in a complex fabric.‖ David L. Shapiro, Continuity 

and Change in Statutory Interpretation, 67 N.Y.U. L. Rev. 921, 937 

(1992). When courts fill interstices in statutory law in a manner the 

legislature disapproves of, the legislature can amend the statute to 

direct a different outcome in future cases. See, e.g., Gressman v. 

State [forthcoming] (noting that in response to the district court‘s 

holding, the legislature amended the Post-Conviction Remedies 

Act to clarify that claims expire on the claimant‘s death). Similarly, the legislature can overrule or preempt common law doctrines 

by statute. See, e.g., Bishop v. GenTec Inc., 2002 UT 36, ¶ 12, 48 P.3d 

218 (holding that the Liability Reform Act preempted in part the 

common law doctrine of respondeat superior). Although courts 

cannot overrule statutory law on the basis of policy, they are responsible for determining the constitutionality of challenged statutes. See, e.g., Gallivan v. Walker, 2002 UT 89, ¶¶ 64, 83, 54 P.3d 

1069 (holding that the multi-county signature requirement for initiatives violated the uniform operation of laws clause and the federal equal protection clause). Additionally, courts can call the at-
IN RE ESTATE OF WILLIAM J. HANNIFIN

JUSTICE DURHAM, dissenting

17

tention of the legislature to statutes in need of clarification or 

modernization. See, e.g., McArthur v. State Farm Mut. Auto. Ins. Co., 

2012 UT 22, ¶¶ 40–47, 274 P.3d 981 (Durham, J., concurring) (urging the legislature to revisit the uninsured motorist statute).1

¶36 Given the dynamic nature of the state law-making process, 

we assume, absent a contrary indication, that the legislature intends its statutes to work in tandem with our case law, and we 

reconcile the common law with statutory law whenever possible. 

See Olseth v. Larson, 2007 UT 29, ¶ 39, 158 P.3d 532 (―We presume 

the Legislature is aware of our case law . . . .‖); see also Bishop, 2002 

UT 36, ¶ 10 (―[T]he common law must necessarily give way‖ to 

statutory law only when the two are ―in conflict‖ or when the legislature intended to preempt the common law.). Conflict preemption occurs only ―where it is impossible . . . to comply with both 

[the common law] and [statutory] requirements, or where [the 

common law] stands as an obstacle to the accomplishment and 

execution of the full purposes and objectives of [the legislature].‖ 

Navajo Nation v. State (In re Adoption of A.B.), 2010 UT 55, ¶ 33, 245 

P.3d 711 (first alteration in original) (internal quotation marks 

omitted).

¶37 When the legislature enacted the Probate Code thirty-eight 

years ago, 1975 Utah Laws 579–715, it included the following section, which has not been amended: ―Unless displaced by the particular provisions of this code, the principles of law and equity 

supplement its provisions,‖ UTAH CODE § 75-1-103. The legislature 

instructed the judiciary not to infer preemption just because the 

legislature had spoken on a subject. Rather, courts are to find 

preemption only where the Probate Code directly ―displace[s]‖ a 

common law doctrine. At the time the Code was enacted with this 

presumption against preemption, equitable adoption had been the 

law in Utah for fifteen years. In re Williams’ Estates, 348 P.2d 683 

(Utah 1960). Yet nothing in the original Probate Code or its subsequent amendments either addresses or conflicts with equitable 

adoption.

 

1 Evidentiary and procedural rule-making is another arena 

where the courts and the legislature interact, with the supreme 

court having primary authority and the legislature the power to 

amend rules. See UTAH CONST. art. 8, § 4.
Cite as: 2013 UT 46

JUSTICE DURHAM, dissenting

18

I. THE PROBATE CODE‘S DEFINITIONS OF ―CHILD‖

AND ―PARENT‖ DO NOT UNDERMINE THE

DOCTRINE OF EQUITABLE ADOPTION

¶38 The majority seems to recognize that equitable adoption 

was valid as a common law doctrine before the Code was enacted. 

See supra ¶¶ 17, 24. In the majority‘s view, equitable adoption and 

the previous probate code could coexist because the previous 

probate code did not define the terms ―child‖ or ―parent.‖2 The 

majority holds that the Uniform Probate Code‘s definitions of 

―child‖ and ―parent,‖ quoted above in paragraph 19, are preemptive. See supra ¶¶ 19–21.

¶39 Contrary to the majority‘s view, these definitions are not 

preemptive because the doctrine of equitable adoption is not 

premised on our ability to judicially define the statutory term 

―child‖ or ―parent.‖ The version of the probate code in effect 

when Williams’ Estates was decided provided for intestate succession by a decedent‘s ―child‖ or ―issue.‖ UTAH CODE § 74-4-5(1)–(2) 

(1953). We did not reach our holding in Williams’ Estates by judicially defining these statutory terms, as the majority suggests. See 

supra ¶ 20. Instead, we exercised our equitable power to hold that, 

even though the claimant was not a ―child‖ or ―issue‖ under the 

statute, justice required awarding her the same inheritance she 

would have received if she had been adopted. See In re Williams’ 

Estates, 348 P.2d 683, 684 (Utah 1960). Nothing in the Uniform 

Probate Code definitions changes our ability to do that.3 Equitable 

adoption has always operated in parallel with the probate code, 

providing a non-statutory, equitable right to inherit as if the 

claimant were the child of the decedent. See id.

 

2 The majority refers to the previous version of the probate code 

as an ―open-ended system.‖ Supra ¶ 17. This characterization is 

surely exaggerated. The probate code in effect when Williams’ Estates was decided addressed intestate succession in as much detail 

as the Code provisions quoted in paragraph 18. Compare UTAH 

CODE § 75-2-103 (2013) with UTAH CODE § 74-4-5 (1953).

3 Even if equitable adoption were a judicial method of interpreting the statutory term ―child,‖ it would be difficult to find 

preemptive intent in the Code‘s exclusion of foster children and 

grandchildren because Williams’ Estates did not involve these categories of individuals.
IN RE ESTATE OF WILLIAM J. HANNIFIN

JUSTICE DURHAM, dissenting

19

¶40 The majority further holds that equitable adoption conflicts 

with the Probate Code because it leads to a different distribution 

of estate assets than the intestacy provisions would otherwise dictate. Supra ¶ 21. But supplemental legal and equitable principles—

explicitly invited by the legislature in Utah Code section 75-1-

103—almost always alter the outcomes of the cases to which they 

are applied. Otherwise, there would be no reason to apply them. 

Courts in Utah and other states that have adopted the Uniform 

Probate Code have supplemented it in several outcomedeterminative ways. See Berneau v. Martino, 2009 UT 87, ¶ 10, 223 

P.3d 1128 (allowing the equitable discovery rule to toll the threeyear statute of limitations required in the Probate Code); Morgan 

v. Zion First Nat’l Bank (In re Estate of Pepper), 711 P.2d 261, 263 

(Utah 1985) (holding that final closing orders in a probate proceeding can be vacated through a rule 60(b) motion, despite the 

fact that section 75-3-1001 of the probate code ―discharges a personal representative from further claim or demand after a final 

closing order has been entered‖); In re Estate of Butler, 444 So. 2d 

477, 479 (Fla. Dist. Ct. App. 1984) (estopping the first wife of decedent from asserting her inheritance rights as against the decedent‘s second wife); In re Estate of Peter C., 488 A.2d 468, 470 (Me. 

1985) (holding that the common law rule that a guardian is in a 

fiduciary relationship to his ward was not abrogated by the adoption of the Uniform Probate Code even though the code does not 

shoulder guardians with fiduciary responsibilities); In re Estate of 

Foster, 699 P.2d 638, 645 (N.M. Ct. App. 1985) (applying the equitable rule ―authoriz[ing] an award of attorney fees for services 

rendered which confer a benefit upon the estate‖); In re Estate of 

O’Keefe, 583 N.W.2d 138, 140 (S.D. 1998) (holding that the circuit 

court had the equitable authority to partially disqualify a beneficiary from inheriting from an estate because of his fraudulent 

acts); see also In re Estate of Wagley, 760 P.2d 316, 319-20 (Utah 1988) 

(holding that a claim of quantum meruit was appropriate in a 

probate case because under section 103, ―principles of law and 

equity supplement the provisions of the [Utah Uniform Probate 

Code] unless displaced by particular provisions of the Code‖).

¶41 More specifically, several states that have enacted the Uniform Probate Code recognize equitable adoption. See, e.g., Calista 

Corp. v. Mann, 564 P.2d 53, 61 & n.18 (Alaska 1977) (holding that 

Alaska‘s version of Utah Code section 75-1-103 permitted the 

court to recognize equitable adoption); In re Estate of Jenkins, 904 

P.2d 1316, 1320 (Colo. 1995) (en banc) (acknowledging that the 

state recognizes equitable adoption); Jolley v. Seamco Laboratories, 
Cite as: 2013 UT 46

JUSTICE DURHAM, dissenting

20

Inc., 828 So. 2d 1050, 1051 (Fla. Dist. Ct. App. 2002) (same); Johnson 

v. Johnson, 617 N.W.2d 97, 101 (N.D. 2000) (same). I am aware of 

no case in which a litigant has argued or a court has held that equitable adoption is incompatible with the Uniform Probate Code.

¶42 Because the doctrine of equitable inheritance has never relied on the absence of a definition of ―child‖ or ―parent‖ in the 

probate code, and because equitable principles are almost always 

outcome-determinative where applied, I would hold that the Uniform Probate Code‘s definitions of ―child‖ and ―parent‖ do not 

conflict with the doctrine of equitable adoption.

II. THE PROBATE CODE‘S RULE THAT ADOPTED 

CHILDREN CANNOT INHERIT FROM THEIR BIOLOGICAL 

PARENTS IS IRRELEVANT TO THE DOCTRINE OF 

EQUITABLE ADOPTION

¶43 The majority also finds preemption based on the Probate 

Code‘s rule that ―for purposes of intestate succession . . . [a]n 

adopted individual is the child of the adopting parent . . . and not 

of the natural parents.‖ UTAH CODE § 75-2-114(1)-(2); see supra ¶¶ 

22–27. The majority correctly states that claimants who inherit 

under the doctrine of equitable adoption could also inherit from 

their biological parents because ―the doctrine of equitable adoption . . . is purely beneficial to the child and in no way alters the 

legal relationship between the claimant and the decedent or between the claimant and the biological parents.‖ Supra ¶ 22; see

Tracy Bateman Farrell, Annotation, Modern Status of Law as to Equitable Adoption or Adoption by Estoppel, 122 A.L.R.5th 205, § 2[a] 

(2004). I agree with this assessment. But the necessary implication 

of the ―purely beneficial‖ nature of equitable adoption is that 

Utah Code section 75-2-114(2) is irrelevant to our preemption inquiry. In a case of equitable adoption, there is no ―adopted person‖ and no ―adopting parent.‖

¶44 The majority seems to have derived its own version of a 

fairness principle from this Code section that would prevent individuals from inheriting both from their biological parents and 

from other adults who perform parental duties. However, the intestacy statutes allow individuals to inherit from a wide range of 

relatives. The Probate Code does not contain a one-person-oneinheritance rule. Section 75-2-114 simply clarifies the effect of a 
IN RE ESTATE OF WILLIAM J. HANNIFIN

JUSTICE DURHAM, dissenting

21

statutory adoption—which has no relation to the inaptly named 

doctrine of equitable adoption4—on intestate succession.

III. THE STATED OBJECTIVES OF THE PROBATE CODE

ARE NOT IN CONFLICT WITH THE DOCTRINE OF

EQUITABLE ADOPTION

¶45 I disagree with the majority‘s emphatic conclusion that equitable adoption frustrates the following ―underlying purposes 

and policies‖ of the Probate Code:

(a) To simplify and clarify the law concerning the affairs of 

decedents, missing persons, protected persons, minors, and 

incapacitated persons;

(b) To discover and make effective the intent of a decedent 

in distribution of his property;

(c) To promote a speedy and efficient system for administering the estate of the decedent and making distribution to 

his successors; . . .

(e) To make uniform the law among the various jurisdictions.

UTAH CODE § 75-1-102(2).

¶46 The majority‘s strongest point is that equitable inheritance 

adds uncertainty to the determination of an intestate decedent‘s 

heirs, in frustration of objective (a). A claim of equitable adoption 

does indeed require a court to consider evidence for and against 

the claim. But any of the legal and equitable principles with which 

the legislature has invited courts to supplement the Probate Code 

could be viewed as adding ―uncertainty, complexity, and inefficiency.‖ See supra ¶ 29. The legislature evidently is willing to tolerate a degree of complication in furtherance of a just and equitable outcome.5

 

4 The presence of the word ―adoption‖ in the phrase ―equitable 

adoption‖ falsely suggests a relationship between this doctrine 

and statutory adoption. I prefer the term ―equitable inheritance‖ 

because it is more descriptive of the specific relief that ought to be 

available to claimants in limited circumstances and does not suggest itself as a basis for other rights and duties associated with 

adoption.

5 As a side note, I do not share the majority‘s general skepticism 

of state common-law development. See supra ¶¶ 30–31. Incremen-
Cite as: 2013 UT 46

JUSTICE DURHAM, dissenting

22

¶47 The remaining objectives could be furthered or hindered by 

equitable adoption, depending on the circumstances of individual 

cases. As to objective (b), the majority notes that the ―presumptive 

preference‖ of a decedent who dies intestate is for assets to be distributed according to the Probate Code. Supra ¶ 31. However, a 

decedent could also rely on the common law doctrine of equitable 

adoption found in Williams’ Estates, which has been binding law 

in Utah for over fifty years. Furthermore, in a case like the present 

one, a decedent would likely have preferred to leave his estate to 

an individual whom the decedent raised as his own child rather 

than to distant relatives with whom he might not have had any 

personal relationship.

¶48 As to objective (c), equitable adoption will likely prolong 

many but not all estate proceedings in which it is claimed. In this 

case, if the viability of the doctrine had not been challenged, it 

may have been speedier and more efficient to award the entire estate to Mr. Nakai than to trace the decedent‘s bloodlines to distant 

relatives, painstakingly calculate each relative‘s share, and distribute the estate (including personal and real property) among 

nineteen individuals.

¶49 Regarding objective (e), the goal of uniformity would be 

furthered slightly more by retaining the doctrine of equitable 

adoption than by overruling it. Approximately half of the states 

recognize equitable adoption, but of the state courts to have directly considered the doctrine, significantly more than half have 

adopted it. See Tracy Bateman Farrell, Annotation, Modern Status 

of Law as to Equitable Adoption or Adoption by Estoppel, 122 A.L.R.5th 

205 (2004). This trend suggests that equitable adoption will continue to grow in acceptance.

¶50 Equitable adoption does not categorically frustrate the 

purposes of the Probate Code. Neither these stated objectives nor 

the other Code provisions analyzed above provide a basis for 

overruling the doctrine. Because no ―particular provisions‖ of the 

Probate Code have ―displaced‖ equitable adoption, see UTAH 

CODE § 75-1-103, I would allow the doctrine to continue to coexist 

with statutory law, as it has done for over fifty years. Given the 

majority‘s foreclosure of this outcome, however, I would encour-

 

tal change through resolution of the questions posed by individual cases is the sine qua non of the common law. See Judith S. Kaye, 

State Courts at the Dawn of a New Century, 70 N.Y.U. L. Rev. 1, 5 

(1995).
IN RE ESTATE OF WILLIAM J. HANNIFIN

JUSTICE DURHAM, dissenting

23

age the legislature to consider the policy arguments in favor of its 

specific inclusion in the Code.

——————