b'\x0cLaw of Wills\n\nBrowne C. Lewis\nLeon and Gloria Plevin Professor of Law and\nDirector, Center for Health Law & Policy\nCleveland-Marshall College of Law\n\nCALI eLangdell Press 2016\n\n\x0cAbout the Author\nProfessor Lewis is the Leon & Gloria Plevin Professor of Law and the Director of the Center of\nHealth Law & Policy at Cleveland-Marshall College of Law. Prior to joining the faculty at ClevelandMarshall, Professor Lewis was an associate professor at the University of Detroit Mercy School of\nLaw, a visiting professor at the University of Pittsburgh School of Law, a summer visiting professor\nat Seattle University School of Law and a legal writing instructor at Hamline University School of\nLaw. Professor Lewis has also taught in the American Bar Association CLEO Summer Institute.\nProfessor Lewis has been a visiting scholar at the Brocher Foundation in Geneva, Switzerland, the\nHasting Center, and Yale University\xe2\x80\x99s Interdisciplinary Center for Bioethics. As a Senior Fulbright\nSpecialist, Professor Lewis conducted research at Hebrew University and Haifa University in Israel.\nProfessor Lewis was also a Core Fulbright Scholar at King\xe2\x80\x99s College in London, and a Robert Wood\nJohnson Public Health Law Scholar in Residence at the Cleveland Public Health Department.\nProfessor Lewis writes in the areas of estate planning, probate and reproductive law. Her article on\nhuman oocyte cryopreservation was recently published in the Tennessee Law Review. In 2012, New\nYork University Press published Professor Lewis\xe2\x80\x99 book on paternity and artificial insemination.\nProfessor Lewis has recently completed a book on posthumous reproduction for Routledge Press.\n\ni\n\n\x0cNotices\nThis is the first edition of this casebook, updated June 2016. Visit http://elangdell.cali.org/ for the\nlatest version and for revision history.\nThis work by Browne C. 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CALI disclaims all liability to any person for any loss\ncaused by errors or omissions in this collection of information.\n\nii\n\n\x0cAbout CALI eLangdell Press\nThe Center for Computer-Assisted Legal Instruction (CALI\xc2\xae) is: a nonprofit organization with over\n200 member US law schools, an innovative force pushing legal education toward change for the\nbetter. There are benefits to CALI membership for your school, firm, or organization. ELangdell\xc2\xae\nis our electronic press with a mission to publish more open books for legal education.\nHow do we define "open?"\n\xef\x82\xb7\n\nCompatibility with devices like smartphones, tablets, and e-readers; as well as print.\n\n\xef\x82\xb7\n\nThe right for educators to remix the materials through more lenient copyright policies.\n\n\xef\x82\xb7\n\nThe ability for educators and students to adopt the materials for free.\n\nFind available and upcoming eLangdell titles at elangdell.cali.org. Show support for CALI by\nfollowing us on Facebook and Twitter, and by telling your friends and colleagues where you received\nyour free book.\n\niii\n\n\x0cTable of Contents\nLaw of Wills .......................................................................................................... ii\nAbout the Author ................................................................................................... i\nNotices.................................................................................................................. ii\nAbout CALI eLangdell Press .............................................................................. iii\nPreface ................................................................................................................ xx\nPart I \xe2\x80\x93 The Intestacy System ............................................................................... 1\nChapter One: Ethically Representing the Elderly Client ..................................... 1\n1.1\n\nIntroduction ................................................................................................................. 1\n\n1.2\n\nClient Identification .................................................................................................... 1\n\n1.3\n\nConflict of Interest ....................................................................................................... 2\nChase v. Bowen, 771 So.2d 1181 (Fla. Dist. Ct. App. 2000) ............................................................. 2\n\n1.4\n\nConfidentiality ............................................................................................................. 3\nA. v. B., 726 A2d 924 (N.J. 1999) .................................................................................................... 3\nNotes, Problems, and Questions .................................................................................... 9\nAmerican Bar Association Model Rule 1.6 Confidentiality of Information............................................11\n\n1.5\n\nCompetency ............................................................................................................... 11\nAmerican Bar Association Model Rule 1.14 Client With Diminished Capacity ...................................12\nIn re Disciplinary Action Against Kuhn, 785 N.W.2d 195 (N.D. 2010) .........................................12\nNotes, Problems, and Questions .................................................................................. 18\nEstate of Schneider v. Finmann, 933 N.E.2d 718 (N.Y. 2010) ........................................................19\n\n1.5.2\n\nThe Intended Beneficiary................................................................................... 20\n\nSisson v. Jankowski, 809 A.2d 1265 (N.H. 2002) ...........................................................................20\nEthics Exercise One ..................................................................................................... 25\nEthics Exercise Two ..................................................................................................... 25\n\nChapter Two: Intestacy System (Basic Overview) ............................................. 27\n2.1\n\nIntroduction ............................................................................................................... 27\n\n2.2\n\nDistribution Under the Intestacy System.................................................................. 27\n\n2.2.1\n2.3\n\nUniform Probate Code \xc2\xa7 2-103. Share of Heirs other than Surviving Spouse ... 28\n\nDescendants .............................................................................................................. 28\niv\n\n\x0c2.3.1\n\nIllustration One .................................................................................................. 28\n\n2.3.2\n\nIllustration Two .................................................................................................. 29\n\n2.3.3\n\nTwo Important Rules to Remember .................................................................. 29\n\n2.4\n\nThe Meaning of Representation ............................................................................... 30\n\n2.4.1\n\nEnglish per stirpes .............................................................................................. 30\n\n2.4.2\n\nModern per stirpes ............................................................................................. 31\n\nNotes and Questions .................................................................................................... 32\n2.4.3\n\nA Case Illustration .............................................................................................. 32\n\nIn re Estate of Evans, 827 N.W.2d 313 (Neb. App. 2013) ..............................................................32\nNotes, Problems, and Questions .................................................................................. 38\n2.4.4\n\nPer capita at each generation (1990 Uniform Probate Code) ............................ 38\n\nUPC \xc2\xa7 2-106(b) .................................................................................................................................39\n2.4.5\n\nComparison ........................................................................................................ 40\n\nProblems ....................................................................................................................... 41\n2.5\n\nAncestors, Collaterals and Others. ............................................................................ 42\n\n2.5.1\n\nParents ................................................................................................................ 42\n\nUniform Probate Code \xc2\xa7 2-114. Parent and Child Relationship. .........................................................42\nIn re Estate of Fleming, 991 P.2d 128 (Wash. Ct. App. 2000) (Voluntary Termination of Parental\nRights).................................................................................................................................................42\nNew Jersey Div. of Youth and Family Services v. M.W., 942 A.2d 1 (N.J. App. Div. 2007)\n(Involuntary Termination of Parental Rights) .......................................................................................45\nNotes, Problems, and Questions .................................................................................. 57\n2.5.2\n\nOther Ancestors and Collaterals ......................................................................... 58\n\nIn re Wolbert\xe2\x80\x99s Estate, 135 A.2d 533 (N.J. Super. Ct. App. Div. 1957) .....................................59\n2.5.3\n\nLaughing Heirs .................................................................................................. 61\n\n2.5.4\n\nEscheat ............................................................................................................... 61\n\nUniform Probate Code \xc2\xa7 2-105 No Taker. .........................................................................................61\n2.5.6\n\nAdvancements .................................................................................................... 61\n\nTankesley v. Thompson, 469 S.E.2d 853 (Ga. App. Ct. 1996) ........................................................62\nUniform Probate Code \xc2\xa7 2-109 ...........................................................................................................63\nVa. Code Ann. \xc2\xa7 64.206. Advancements brought into hotchpot ..........................................................63\n2.5.7\n\nComputation of Shares-Hotchpot Method. ....................................................... 63\nv\n\n\x0cProblems and Questions ............................................................................................... 64\n\nChapter Three: Intestacy System (Surviving Spouse) ........................................ 65\n3.1\n\nIntroduction ............................................................................................................... 65\nUniform Probate Code \xc2\xa7 2-102. Share of Spouse. ................................................................................66\nProblems ....................................................................................................................... 66\n\n3.2\n\nDefinition of Spouse .................................................................................................. 67\n\n3.2.1\n\nPutative Spouse .................................................................................................. 67\n\nM.S.A. \xc2\xa7 518.055 Putative Spouse (Minnesota).................................................................................67\nEstate of Leslie, 689 P.2d 133 (Cal. 1984) .......................................................................................68\nNotes, Problems, and Questions .................................................................................. 77\nEstate of Hafner, 184 Cal. App. 3d 1371 (Cal. App. Ct. 1986) ......................................................78\n3.2.2\n\nCommon Law Spouse......................................................................................... 89\n\nIn re Estate of Duval, 777 N.W.2d 380 (S.D. 2010) .......................................................................89\nNotes, Problems, and Questions .................................................................................. 94\n3.2.3\n\nSame-Sex Spouse ................................................................................................ 95\n\n3.2.4\n\nOther Issues Impacting the Status of Surviving Spouse .................................... 95\n\n3.2.4.1\n\nLegal Separation ............................................................................................. 96\n\nEstate of Lahey, 76 Cal App. 4th 1056, 91 Cal. Rptr. 30 (Ct. App. Cal. 1st Dist. Div. 5, 1999) ....96\nNotes, Problems, and Questions .................................................................................. 98\n3.2.4.2\n\nAbandonment.................................................................................................. 98\n\nEstate of Joyner v. Joyner, 753 S.E.2d 192 (Ct. App. N.C. 2014) (Constructive Abandonment) .......98\nNotes, Problems, and Questions ................................................................................ 100\n3.3\n\nWhat does it mean to survive? ..................................................................................101\n\n3.3.1\n\nCommon Law ................................................................................................... 102\n\n3.3.2\n\nOriginal Uniform Simultaneous Death Act ..................................................... 102\n\nMatter of Bausch\xe2\x80\x99s Estate, 100 Misc.2d 817 (N.Y. 1979) .............................................................. 102\nProblems ..................................................................................................................... 103\n3.3.3\n\nUPC and Modern USDA (120 Hour Rule) ....................................................... 104\n\nUniform Probate Act \xc2\xa7 2-104. Requirement that Heir Survive Decedent for 120 Hours. .................. 104\nStephens v. Beard, 428 S.W.3d 385 (Ct. App. Tex. 2014) ............................................................ 104\n3.3.4\n\nBrain Death vs. Hearth Death.......................................................................... 107\nvi\n\n\x0cIn re Haymer, 450 N.E.2d 940 (Ill. App. 3d 1983) ...................................................................... 107\n3.4\n\nOther Surviving Spousal Resources ......................................................................... 111\n\n3.4.1.\n\nSocial Security and Retirement Benefits ...........................................................112\n\n3.4.2.\n\nHomestead, Personal Property Set-Aside, and Family Allowance ...................112\n\n3.4.3\n\nDower ................................................................................................................113\n\nOhio Revised Code Ann. 2103.02 ................................................................................................... 113\nArmstrong v. Armstrong, 715 N.E.2d 207 (Ohio App. Ct. 1998)................................................. 113\n3.4.4\n\nFractionalize Forced Share ................................................................................115\n\nIn re Estate of Soard, 173 S.W.3d 22 (Tenn. App. Ct. 2005) ........................................................ 115\n\nChapter Four: The Intestacy System (Marital and Adopted Children) ........... 128\n4.1\n\nIntroduction ............................................................................................................. 128\n\n4.2\n\nMarital Children ...................................................................................................... 128\n\n4.2.1\n\nPosthumously Born Children ........................................................................... 128\n\nMorrow v. Scott, 7 Ga. 535 (Ga. 1849) .......................................................................................... 128\nUniform Probate Code \xc2\xa7 2-108 Afterborn Heirs .............................................................................. 129\nClass Discussion Tool One ......................................................................................... 129\n4.3\n\nAdopted Children .................................................................................................... 130\n\n4.3.1\n\nLegal Adoption ..................................................................................................131\n\nMcKinney\xe2\x80\x99s D.R.L. \xc2\xa7 117(b) Right to inherit from and through the biological parents eliminated after\nadoption ............................................................................................................................................ 131\nAldridge v. MIMS, 884 P.2d 817 (N.M. 1994) ............................................................................ 131\nEllis v. West, 971 So. 2d 20 (Ala. 2007) ....................................................................................... 134\nRight to inherit from biological parent retained after adoption .................................... 136\nIn re Estate of Moore, 25 P3d 305 (Oklahoma 2001)..................................................................... 136\nIn re Estate of Wulf, 167 N.W.2d 181 (Neb. 1969) ...................................................................... 138\nThe right to inherit from two lines ................................................................................. 140\nUniform Probate Code \xc2\xa7 2-113 ........................................................................................................ 140\nJenkins v. Jenkins, 990 So. 2d 807 (Miss. App. Ct. 2008) ............................................................. 141\nNotes and Questions .................................................................................................. 145\n4.3.2\n\nEquitable Adoption .......................................................................................... 145\n\nRight to inherit from the intended adoptive parents ..................................................... 145\nO\xe2\x80\x99Neal vs. Wilkes, 439 S.E.2d 490 (Ga. 1994) ............................................................................ 146\nvii\n\n\x0cWelch vs. Wilson, 516 S.E.2d 35 (W. Va. 1999) .......................................................................... 149\nNotes and Questions .................................................................................................. 152\nRight to inherit from biological parents ......................................................................... 153\nGardner v. Hancock, 924 S.W.2d 857 (Mo. 1996) ........................................................................ 153\nNotes and Questions .................................................................................................. 155\nThe right to inherit through the intended adoptive parents .......................................... 156\nBd. of Education of Montgomery County v. Browning, 635 A.2d 373 (Md. 1994) .......................... 156\nNotes and Problems.................................................................................................... 164\n4.3.2\n\nAdult Adoption ................................................................................................. 166\n\nThe right to inherit through the adoptive parents ......................................................... 166\nIn the Matter of the Petition of P.A.L., 5 P.3d 390 (Colo. 2000) .................................................... 166\nTinney v. Tinney, 799 A.2d 235 (R.I. 2002) .................................................................................. 168\nNotes and Questions .................................................................................................. 170\nRight to inherit through adoptive parents.......................................................................171\nIn re Estate of Brittin, 664 N.E.2d 687 (Ill. 1996) ........................................................................ 171\nIn re Ellison Grandchildren Trust, 261 S.W.3d 111 (Tex. 2008)................................................... 175\n4.3.3\n\nStepparent Adoption ......................................................................................... 187\n\nUniform Probate Code \xc2\xa7 2-114 Parent and Child Relationship ........................................................ 187\nUniform Adoption Act \xc2\xa7 4-103 (1994) ........................................................................................... 188\nImpact on the right to inherit from biological parent(s) ............................................... 188\nEstate of Jacobs, 719 A.2d 523 (Me. 1998).................................................................................... 188\nImpact on the right to inherit through biological parent(s) .......................................... 190\nIn re Estate of McQuesten, 578 A.2d 335 (N.H. 1990) ................................................................ 190\n\nChapter Five: Intestacy (Non-Marital Children, Stepchildren and Foster\nChildren) ............................................................................................................ 194\n5.1\n\nIntroduction ............................................................................................................. 194\n\n5.2\n\nNon-Marital Children .............................................................................................. 195\n\n5.2.1\n\nThe Right to Inherit From Mothers ................................................................. 195\n\nLevy v. Louisiana, 391 U.S. 68 (1968) .......................................................................................... 196\nNotes and Questions .................................................................................................. 197\nOhio Revised Code Annotated .......................................................................................................... 198\nviii\n\n\x0c5.2.2\n\nThe Right to Inherit From Fathers .................................................................. 198\n\nLalli v. Lalli, 439 U.S. 259 (1978) ............................................................................................... 198\nNotes and Questions .................................................................................................. 204\nPhillips v. Ledford, 590 S.E.2d 280 (N.C. App. 2004) ................................................................. 205\nNotes and Questions .................................................................................................. 207\nNotes and Questions .................................................................................................. 208\n5.2.3\n\nRight to Inherit Through Fathers .................................................................... 209\n\nIn re Dumaine, 600 A.2d 127 (N.H. 1991) .................................................................................. 209\nNotes and Questions .................................................................................................. 213\nUniform Parentage Act \xc2\xa7 202. No Discrimination Based on Marital Status. ................................... 213\nNotes and Questions .................................................................................................. 214\nSample State Statutes...................................................................................................... 215\nNotes and Questions .................................................................................................. 219\n5.3\n\nStepchildren and Foster Children ........................................................................... 219\n\n5.3.1\n\nStepchildren/Foster Children are not entitled to inherit ................................. 219\n\nWyo. Stat. Ann. \xc2\xa7 2-4-104 (1977) ................................................................................................. 220\n5.3.2\n\nStepchildren/Foster Children may inherit if the necessary relationship exists\n220\n\nWest\xe2\x80\x99s Ann. Cal. Prob. Code \xc2\xa7 6454 .............................................................................................. 220\nEstate of Claffey, 257 Cal. Rptr. 197 (Cal. App. 3d 1989) ............................................................ 220\n5.3.3\n\nStepchildren/Foster Children may inherit if there are no other heirs available\n223\n\nMD Code, Estates and Trusts, \xc2\xa7 3-104 ........................................................................................... 223\nEstate of Smith, 299 P.2d 550 (Wash. 1956) ................................................................................. 224\nEstate of Joseph, 949 P.2d 472 (Cal. 1998) .................................................................................... 227\nNotes and Questions .................................................................................................. 236\n\nChapter Six: Intestacy (Children of Assisted Reproductive Technology) ....... 237\n6.1\n\nIntroduction ............................................................................................................. 237\n\n6.2\n\nPosthumously Conceived Children ......................................................................... 238\n\n6.2.1\n\nThe Right to Inherit From Fathers .................................................................. 239\n\nAstrue v. Capato ex. Rel. B.N.C., 132 S. Ct. 2021 (2012) ........................................................... 239\nWoodward v. Commissioner of Social Sec., 760 N.E.2d 257 (Mass. 2002) ..................................... 241\nix\n\n\x0cNotes and Questions .................................................................................................. 251\nKhabbaz v. Commissioner of Social Security Administration, 930 A.2d 1180 (N.H. 2007) ........... 252\nIn Re Estate of Kolacy, 753 A.2d 1257 (N.J. 2000) ...................................................................... 256\nQuestions .................................................................................................................... 261\nFinley v. Astrue, 270 S.W.3d 849 (Ark. 2008) ............................................................................. 261\nQuestions .................................................................................................................... 266\n6.2.2\n\nThe Right to Inheritance Through Fathers ..................................................... 266\n\nIn re Martin, 841 N.Y.S.2d 207 (N.Y. Sur. Ct. 2007)................................................................. 266\nNotes and Questions .................................................................................................. 270\nStatutes Addressing the Inheritance Rights of Posthumously Conceived Children ..... 270\nQuestions .................................................................................................................... 271\nQuestions .................................................................................................................... 273\nProblems ..................................................................................................................... 274\n6.3\n\nChildren Conceived Using Artificial Insemination................................................. 275\n\n6.4\n\nThe Paternity of the Inseminated Woman\xe2\x80\x99s Husband ........................................... 275\n\n6.4.1\n6.4.1.1\n\nConsenting Husband is the Legal Father ........................................................ 276\nWritten Consent ............................................................................................ 276\n\nLane v. Lane, 912 P.2d. 290 (N.M. 1996) .................................................................................... 276\nNotes and Questions .................................................................................................. 282\n6.4.1.2\n\nVerbal Consent .............................................................................................. 282\n\nK.S. v. G.S., 440 A.2d 64 (N.J. Super. Ct. App. Div. 1981) ....................................................... 283\n6.4.1.3\n\nPresumed Consent ........................................................................................ 286\n\nW.W. v. W.W., 51 A.D.3d 211 (N.Y. App. Div. 2008) ............................................................. 286\nNotes and Questions .................................................................................................. 290\n6.4.1.4\n\nImplied Consent ........................................................................................... 290\n\nIn re Baby Doe, 353 S.E.2d 877 (S.C. 1987) ................................................................................ 290\nNotes and Questions .................................................................................................. 292\n6.4.2\n\nNonconsenting Husband is not the Legal Father ........................................... 292\n\nMarriage of Witbeck-Wildhagen, 667 N.E.2d 122 (Ill. App. Ct. 1996) ........................................ 292\nNotes and Questions .................................................................................................. 296\n6.5\n\nThe Paternity of the Sperm Donor .......................................................................... 297\nx\n\n\x0c6.5.1\n\nThe Sperm Donor is not the Legal Father ....................................................... 297\n\nLamaritata v. Lucas, 823 So. 2d 316 (Fla. Dist. Ct. App. 2002) ................................................. 297\nQuestions .................................................................................................................... 299\n6.5.2\n\nThe Sperm Donor May Be the Legal Father.................................................... 299\n\nShultz v. Shultz, 923 A.2d 473 (Pa. Super Ct. 2007) ................................................................... 299\nSample Statutes............................................................................................................... 303\n6.6\n\nChildren Conceived Through Surrogacy Arrangements......................................... 304\n\n6.6.1\n6.6.1.1\n\nThe Possibility of Inheriting From the Woman ............................................... 304\nThe Genetics/Blood Test ............................................................................. 304\n\nBelsito v. Clark, et al., 644 N.E. 2d 760 (C.P. Ct. Oh. 1994) ...................................................... 304\nNotes and Questions .................................................................................................. 312\n6.6.1.2\n\nThe Gestational Test .................................................................................... 313\n\nA.H.W. and P.W. v. G.H.B., 772 A.2d 948 (N.J. 2000) ........................................................... 314\nNote and Questions .................................................................................................... 316\n6.6.1.3\n\nThe Intent Test ............................................................................................. 317\n\nJohnson v. Calvert, 851 P.2d. 776 (Cal. 1993) ............................................................................... 317\n6.6.1.4\n\nThe Best Interests of the Child Test............................................................. 323\n\nJohnson v. Calvert, 851 P.2d. 776 (Cal. 1993) ............................................................................... 323\nNotes and Questions .................................................................................................. 324\n6.6.1.5\n\nThe Totality of the Circumstances ............................................................... 324\n\nIn re C.K.G., 173 S.W. 3d 714 (Tenn. 2005) ................................................................................ 324\n6.6.2\n\nThe Possibility of Inheriting Through The Woman ........................................ 337\n\nMatter of Petition Of Successor Trustees for the Construction of three inter vivos trusts created in 1959 f/b\nto the Issue of K. Doe, C. Doe, and M. , 793 N.Y.S. 2d 878 (2005).............................................. 337\n\nPart II \xe2\x80\x94The Testacy System........................................................................... 341\nChapter Seven: Testamentary Freedom ........................................................... 341\n7.1\n\nIntroduction ............................................................................................................. 341\n\n7.1.1.\n\nThe Decedent\xe2\x80\x99s Right to Control the Distribution of Property ....................... 341\n\nHodel v. Irving, 481 U.S. 704 (1987) ............................................................................................. 341\nNotes and Questions .................................................................................................. 346\nOstrander v. Preece, 196 N.E. 670 (Ohio 1935) ............................................................................. 346\nxi\n\n\x0cNotes, Problems, and Questions ................................................................................ 348\n7.2\n\nThe Decedent\xe2\x80\x99s Right to Place Restrictions on the Right to Inherit ..................... 349\n\n7.2.1\n\nSome Restrictions are Unreasonable ............................................................... 349\n\nMaddox & al. v. Maddox\xe2\x80\x99s adm\xe2\x80\x99r & als., 11 Grat., Va. 804 (Va. 1854) ................................... 349\n7.2.2\n\nSome Restrictions are Reasonable ................................................................... 355\n\nShapira v. Union National Bank et. al., 315 N.E.2d 825 (Ohio 1974)......................................... 355\nIn re Estate of Feinberg, 919 N.E.2d 888 (Ill. 2009) ..................................................................... 359\nNotes, Problems, and Questions ................................................................................ 372\n\nChapter Eight: Disinheritance .......................................................................... 374\n8.1\n\nIntroduction ............................................................................................................. 374\n\n8.2\n\nExceptions ............................................................................................................... 374\n\n8.2.1\n\nForced Heirs ..................................................................................................... 374\n\nLSA. C.C. Art. 1493. Forced heirs ................................................................................................ 374\n8.3\n\nNegative Disinheritance.......................................................................................... 374\n\n8.3.1\n\nExample............................................................................................................ 375\n\n8.3.2\n\nUPC \xc2\xa7 2-101 Intestate Estate ............................................................................ 375\n\nIn re Estate of Melton, 272 P.3d 668 (2012) .................................................................................. 375\n8.4\n\nExpressed Disinheritance by the Testator .............................................................. 383\nEstate of D.M.R., 735 N.E.2d 359 (Mass. 2000)......................................................................... 384\nNotes and Questions .................................................................................................. 388\n\n8.5\n\nDisinheritance by Operation of Law (Slayer Rule) ................................................ 388\nWest\xe2\x80\x99s Alaska Statutes Annotated \xc2\xa7 13.12.803. Effect of homicide on intestate succession, wills, trusts,\njoint assets, life insurance, and beneficiary designations........................................................................ 389\n\n8.5.1\n\nApplication of the Slayer Statute ..................................................................... 389\n\n8.5.1.1 Slayer Is Legally Disinherited .......................................................................... 389\nIn the Matter of the Estate of Blodgett, 147 P.3d 702 (Alaska 2006) ............................................. 389\n8.5.1.2\n\nSlayer\xe2\x80\x99s Descendant May Not Be Legally Disinherited ............................... 393\n\nIn the Matter of the Estate of Van Der Veen, 935 P.2d 1042 (Kan. 1997) ................................... 393\n8.5.2\n8.5.2.1\n\nExceptions ........................................................................................................ 396\nAssisted Suicide ............................................................................................ 396\n\nIn re the Estate of Schunk, 760 N.W.2d 446 (Wis. 2008) ............................................................. 396\n8.5.2.2\n\nMentally Incompetent Slayer ........................................................................ 400\nxii\n\n\x0cEstate of Armstrong v. Armstrong, 170 So.3d 510 (Miss. 2015) .................................................... 400\nNotes and Questions .................................................................................................. 406\nProblems ..................................................................................................................... 407\n\nChapter Nine: Testamentary Capacity (Mental Competency and Insane\nDelusion) ........................................................................................................... 409\n9.1.\n\nIntroduction ............................................................................................................. 409\n\n9.2\n\nTestamentary Capacity ............................................................................................ 410\nIn re Estate of Romero, 126 P.3d 228 (Colo. App. 2005) ............................................................... 410\nNotes, Problems, and Questions ................................................................................ 414\nMatter of Estate of Oliver, 934 P.2d 144 (Kan. App. 1997) .......................................................... 415\nNotes, Problems, and Questions ................................................................................ 419\nPaine v. Sullivan, 950 N.E.2d 874 (Mass. App. 2011) ................................................................. 420\nNotes, Problems, and Questions ................................................................................ 425\n\n9.3\n\nInsane Delusion....................................................................................................... 426\nMatter of Estate of Killen, 937 P.2d 1368 (Ariz. App. 1996) ....................................................... 426\nMatter of Estate of Watlack, 945 P.2d 1154 (Wash. App. 1997).................................................. 432\nNotes, Problems, and Questions ................................................................................ 436\nClass Discussion Tools ............................................................................................... 436\n\nChapter Ten: Testamentary Capacity (Undue Influence, Duress and Fraud) 438\n10.1\n\nIntroduction ............................................................................................................. 438\n\n10.2\n\nUndue Influence/Duress ........................................................................................ 438\n\n10.2.1\n\nPresumption of Undue Influence ..................................................................... 438\n\nNoblin v. Burgess, 54 So.3d 282 (Miss. 2010) ................................................................................ 439\nIn re Estate of Saucier, 908 So. 2d 883 (Miss. Ct. App. 2005) ...................................................... 444\nProblems ..................................................................................................................... 448\n10.2.2\n\nUndue Influence ............................................................................................... 449\n\nIn re Estate of Schoppe, 710 N.W.2d 258 (Iowa Ct. App. 2005) ................................................... 449\nNotes, Problems, and Questions ................................................................................ 453\n10.2.3\n\nDuress ............................................................................................................... 454\n\nIn re Estate of Rosasco, 31 Misc. 3d 1214(A), 927 N.Y.S.2d 819 (N.Y. Sur. Ct. 2011) ............. 455\n10.3\n\nFraud........................................................................................................................ 463\nxiii\n\n\x0c10.3.1\n\nFraud in the inducement .................................................................................. 463\n\n10.3.2\n\nFraud in the Execution..................................................................................... 464\n\n10.4\n\nIntentional Interference With An Inheritance Expectancy (IIE) ........................... 464\n\xc2\xa7 774B Intentional Interference with Inheritance or Gift .................................................................... 465\nSchilling v. Herrera, 952 So. 2d 1231 (Fla. App. 2007) ................................................................ 465\nNotes, Problems, and Questions ................................................................................ 470\nClass Discussion Tool................................................................................................. 471\n\nChapter Eleven: Attested Wills ......................................................................... 472\n11.1\n\nIntroduction ............................................................................................................. 472\nVa. Code Ann. 64.2-403. Execution of wills; requirements ............................................................. 472\n\n11.2\n\nWriting ..................................................................................................................... 472\nN.R.S. 133.085. Electronic will (Nevada) ....................................................................................... 472\nProblems ..................................................................................................................... 473\n\n11.3\n\nSigned by the Testator............................................................................................. 474\n\n11.3.1\n\nSignature Problems .......................................................................................... 474\n\nTaylor v. Holt, 134 S.W.3d 830 (Tenn. Ct. App. 2003)................................................................ 474\nMatter of Will of Bernatowicz, 233 A.D.2d 838 (N.Y. App. Div. 1996) ...................................... 477\nNotes, Problems, and Questions ................................................................................ 479\n11.4\n\nIn the Presence ........................................................................................................ 479\n\n11.4.1\n\nLine of Sight ..................................................................................................... 480\n\nWalker v. Walker, 174 N.E. 541 (Ill. 1930) ................................................................................ 480\n11.4.2\n\nConscious Presence .......................................................................................... 483\n\nWhitacre v. Crowe, 972 N.E.2d 659 (Ohio Ct. App. 2012) .......................................................... 483\n12.5\n\nWitnesses ................................................................................................................. 489\nA.C.A. \xc2\xa7 28-25-102. Competency, etc., of witnesses ......................................................................... 489\nScandurro v. Beto, 234 S.W.2d 695 (Tex. Civ. App. 1950) ........................................................... 490\nProblems ..................................................................................................................... 493\n\n11.6\n\nRevocation ............................................................................................................... 494\nM.G.L.A. 190B \xc2\xa7 2-507 Revocation by writing or by act (Mass.) ................................................... 494\n\n11.6.1\n\nBy Later Writing ............................................................................................... 495\n\nProblems ..................................................................................................................... 495\nxiv\n\n\x0c11.6.2\n\nBy Physical Act ................................................................................................. 496\n\n11.6.2.1 Attempted Destruction ................................................................................... 496\nThompson v. Royall, 175 S.E. 748 (Va. 1934) .............................................................................. 496\n11.6.2.2 Presumption of Destruction ........................................................................... 498\nEdmonds v. Edmonds, 772 S.E.2d 898 (Va. 2015) ...................................................................... 498\nHarrison v. Bird, 621 So.2d 972 (Ala. 1993) ................................................................................ 507\nNotes, Problems, and Questions ................................................................................ 508\n11.6.3 Dependent Relative Revocation and Revival (DRRR)......................................... 509\n11.6.3.1\n\nDRRR ........................................................................................................ 510\n\nKroll v. Nehmer, 705 A.2d 716 (Md. 1998). ................................................................................. 510\nNotes, Problems, and Questions ................................................................................ 517\n11.6.3.2 Revival............................................................................................................. 517\nN.C.G.S.A. \xc2\xa7 31-5.8.Revival of revoked will .................................................................................. 518\nVA Code Ann. \xc2\xa7 64.2-411. Revival of wills after revocation ........................................................... 518\n20 Pa.C.S.A. \xc2\xa7 2506. Revival of revoked or invalid will .................................................................. 518\nMCA 72-2-529. Revival of revoked will (Montana) ........................................................................ 518\nProblems ..................................................................................................................... 518\n11.6.4\n\nRevocation by Changed Circumstances .......................................................... 519\n\n11.6.4.1 Spouses............................................................................................................ 519\n11.6.4.1.1 Divorce ........................................................................................................................... 519\nDavis v. Aringe, 731 S.W.2d 210 (Ark. 1987) ............................................................................. 519\n11.6.4.1.2 Marriage......................................................................................................................... 522\nEstate of Murrary, 193 Cal. Rptr. 355 (1983) ............................................................................... 522\n11.6.4.2 Children .......................................................................................................... 524\n11.6.4.2.1 Omitted Children ............................................................................................................ 524\nUPC \xc2\xa7 2-302. Omitted Children ..................................................................................................... 524\nProblems ..................................................................................................................... 525\n11.6.4.2.2 After Born Children ....................................................................................................... 526\nHedlund et al. v. Miner et. al., 69 N.E.2d 862 (Ill. 1946) ............................................................. 526\nNotes and Questions .................................................................................................. 531\n\nChapter Twelve: Non-Attested Wills ................................................................ 533\nxv\n\n\x0c12.1\n\nIntroduction ............................................................................................................. 533\n\n12.2\n\nHolographic Will ..................................................................................................... 533\nUniform Probate Code \xc2\xa7 2-502. Execution; Witnessed or Notarized Wills; Holographic Wills. ....... 533\n\n12.2.1\n\nTestamentary Intent ......................................................................................... 533\n\nIn re Kimmel\xe2\x80\x99s Estate, 278 Pa. 435 (Pa. 1924) .............................................................................. 534\nEstate of Southworth, 51 Cal. App. 4th 564 (Cal. Ct. App. 1996) ................................................. 537\nProblems ..................................................................................................................... 542\n12.2.2\n\nIn the Testator\xe2\x80\x99s Handwriting ......................................................................... 543\n\nMatter of Estate of Hand, 684 A.2d 521 (N.J. 1996) ................................................................... 543\n12.2.3\n\nMaterial Portions .............................................................................................. 546\n\nMatter of Estate of Krueger, 529 N.W.2d 151 (N.D. 1995) .......................................................... 546\n12.2.4\n\nPreprinted Forms.............................................................................................. 548\n\nIn re Will of Ferree, 848 A.2d 81 (N.J. 2003) ............................................................................... 548\n12.3\n\nNuncupative Wills ................................................................................................... 553\nT. C. A. \xc2\xa7 32-1-106. Nuncupative wills (Tenn.) ............................................................................. 553\nProblems ..................................................................................................................... 554\n\nChapter Thirteen: Additional Doctrines Impacting Wills ............................... 556\n13.1\n\nIntroduction ............................................................................................................. 556\n\n13.2\n\nIncorporation by Reference ..................................................................................... 556\n\xc2\xa7 2-510. Incorporation by Reference .................................................................................................. 556\n\n13.2.1\n\nIn Existence...................................................................................................... 556\n\nCyfers v. Cyfers, 759 S.E.2d 475 (W. Va. 2014)........................................................................... 556\nClark v. Citizens Nat. Bank of Collingswood, 118 A.2d 108 (N.J. Super. Ct. App. Div 1955) ... 562\n13.2.2\n\nDescription and Intent ..................................................................................... 567\n\nClark v. Greenhalge, 582 N.E.2d 949 (Mass. 1991) ..................................................................... 567\nProblems ..................................................................................................................... 571\n13.3\n\nIntegration ............................................................................................................... 572\nIn re Morrison\xe2\x80\x99s Estate, 220 P.2d 413 (Cal. Ct. App. 1950) ......................................................... 572\nProblems ..................................................................................................................... 576\n\n13.4\n\nRepublication by Codicil ......................................................................................... 576\nRestatement (Third) of Property (Wills & Don. Trans.) \xc2\xa7 3.4 (1999) ............................................. 576\nxvi\n\n\x0c\xc2\xa7 4-512. Events of Independent Significance. ..................................................................................... 578\nProblems ..................................................................................................................... 579\n13.6\n\nInteraction Between the Doctrines ......................................................................... 579\nWalsh v. St. Joseph\xe2\x80\x99s Home For Aged, 303 A.2d 691 (Del.Ch. 1973) ........................................... 579\n\n13.7\n\nContracts Relating to Wills .................................................................................. 581\n\n13.7.1\n\nContract to Make a Will.................................................................................... 582\n\nUniform Probate Code \xc2\xa7 2-514. Contracts Concerning Succession ..................................................... 582\nNewton v. Lawson, 720 S.E.2d 353 (Ga. Ct. App. 2011) ............................................................ 582\nProblems ..................................................................................................................... 586\n13.7.2\n\nContract Not to Revoke a Will ......................................................................... 586\n\nProblems ..................................................................................................................... 587\n\nChapter Fourteen: Mistakes and Curative Doctrines....................................... 588\n14.1\n\nIntroduction ............................................................................................................. 588\n\n14.2\n\nDrafting Errors ........................................................................................................ 588\nIn re Gibb\xe2\x80\x99s Estate, 111 N.W.2d 413 (Wis. 1961) ....................................................................... 588\n\n14.3\n\nExecution Errors ..................................................................................................... 592\n\n14.3.1\n\nStrict Compliance ............................................................................................. 592\n\nIn re Pavlinko\xe2\x80\x99s Estate, 148 A.2d 528 (Pa. 1959) ......................................................................... 592\n14.3.2\n\nSubstantial Compliance.................................................................................... 598\n\nMatter of Will of Ranney, 589 A.2d 1339 (N.J. 1991) .................................................................. 599\n14.3.3\n\nHarmless Error/Dispensing Power ................................................................. 606\n\nIn re Estate of Ehrlich, 47 A.3d 12 (N.J. Super. Ct. App. Div. 2012) .......................................... 606\nIn re Estate of Sky Dancer, 13 P.3d 1231 (Colo. App. 2000) ........................................................ 613\n\nChapter Fifteen: The Stale Will Problem .......................................................... 617\n15.1\n\nIntroduction ............................................................................................................. 617\n\n15.2\n\nCommon law/Default Lapse Rules ........................................................................ 617\n\n15.2.1\n\nSpecific and General Devises ........................................................................... 617\n\n15.2.2\n\nResiduary Devises ............................................................................................ 618\n\n15.2.3\n\nNo Residue-of-a Residue Rule......................................................................... 618\n\n15.2.3\n\nClass Devises .................................................................................................... 619\n\nMatter of Seaman, 196 Misc. 202 (N.Y. Sur. Ct. 1949) ............................................................... 619\nxvii\n\n\x0cMatter of Kalouse\xe2\x80\x99s Estate, 282 N.W.2d 98 (Iowa 1979) ............................................................... 620\nNolan v. Borger, 203 N.E.2d 274 (Ohio Prob. 1963) .................................................................... 628\n15.2.4\n\nVoid Devises ..................................................................................................... 634\n\nIn re Estate of Russell, 444 P.2d 353 (Cal. 1968) .......................................................................... 634\nNotes, Problems, and Questions ................................................................................ 640\nM.S.A. \xc2\xa7 524.2-603. Antilapse; deceased devisee; class gifts; words of survivorship (Minn.) .............. 642\n14.3.1\n\nDevisee Predeceases the Testator .................................................................... 642\n\nGianoli v. Gabaccia, 412 P.2d 439 (Nev. 1966) ............................................................................. 642\nIn re Estate of Evans, 326 P.3d 755 (Wash. Ct. App. 2014) ........................................................ 644\n15.3.2\n\nTestator\xe2\x80\x99s Contrary Intent ................................................................................ 650\n\n15.3.2.1\n\nLanguage of the Will ................................................................................ 651\n\nM.S.A. \xc2\xa7 524.2-603. Antilapse; deceased devisee; class gifts; words of survivorship (Minn.) .............. 651\nRuotolo v. Tietjen, 890 A.2d 166 (Conn. App. Ct. 2006) .............................................................. 651\n15.3.2.2\n\nAlternative Disposition .............................................................................. 658\n\nKubiczky v. Wesbanco Bank Wheeling, 541 S.E.2d 334 (W. Va. 2000)....................................... 658\n15.4\n\nAdemption ............................................................................................................... 665\n\n15.4.1\n\nAdemption by Extinction ................................................................................. 665\n\nStewart v. Sewell, 215 S.W.3d 815 (Tenn. 2007) ........................................................................... 665\nNotes, Problems, and Questions ................................................................................ 675\nUniform Probate Code \xc2\xa7 2-606. Nonademption of specific devises: Unpaid proceeds of sale,\nCondemnation, or insurance; Sale by conservator or agent ................................................................... 676\n15.4.2\n\nAdemption by Satisfaction ............................................................................... 676\n\nIn re Estate of Condon, 715 N.W.2d 770 (Iowa Ct. App. 2006) ................................................... 677\nSDCL \xc2\xa7 29A-2-609. Ademption by satisfaction (S.D.) .................................................................. 680\nProblems ..................................................................................................................... 681\n15.5\n\nOther Doctrines Relevant to Will Property ............................................................. 681\n\n15.5.1\n\nExoneration of Liens ........................................................................................ 681\n\nVA Code Ann. \xc2\xa7 64.2-531. Nonexoneration; payment of lien if granted by agent ............................ 682\nEstate of Fussell v. Fortney, 730 S.E.2d 405 (W. Va. 2012)......................................................... 682\n15.5.2\n\nAbatement ........................................................................................................ 687\n\nPart III \xe2\x80\x94 Nonprobate Transfers ..................................................................... 688\nxviii\n\n\x0cChapter Sixteen: Will Substitutes...................................................................... 688\n16.1\n\nIntroduction ............................................................................................................. 688\n\n16.2\n\nLife Insurance.......................................................................................................... 688\n\n16.2.1\n\nChanging the Beneficiary ................................................................................. 689\n\nCarruthers v. $21,000 (Formerly New York Life Ins. Co.), 434 A.2d 125 (Pa. Super. 1981) ....... 689\nDoss v. Kalas, 383 P.2d 169 (Ariz. 1963) ..................................................................................... 691\nNotes, Problems, and Questions ................................................................................ 693\n16.3\n\nPrivate Retirement Accounts................................................................................... 694\nEgelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141 (2014) ............................................................... 695\nQuestions .................................................................................................................... 703\n\n16.4\n\nJoint Bank Accounts ................................................................................................ 703\nIn re Estate of Platt, 772 N.E.2d 198 (Ohio Ct. App. 2002) ........................................................ 704\nNotes, Problems, and Questions ................................................................................ 707\n\n16.5\n\nConcurrently Owned Real Property ........................................................................ 708\n\n16.6\n\nInter Vivos Trusts .................................................................................................... 708\n\n16.6.1\n\nCreation of a Trust............................................................................................ 709\n\n16.6.1.1.\n\nIntent ......................................................................................................... 709\n\nFrazier v. Hudson, 130 S.W.2d 809 (Ky. Ct. App. 1939) ............................................................. 709\nBothe v. Dennie, 324 A.2d 784 (Del. 1974) ................................................................................... 712\nNotes and Problems.................................................................................................... 716\n16.6.1.2.\n\nProperty ..................................................................................................... 717\n\nIn re Estate of McDowell, 781 N.W.2d 568 (Iowa Ct.App. 2010) ................................................ 717\n16.6.2\n\nModification/Revocation of a Trust ................................................................ 722\n\nChiles v. Chiles, 242 S.E.2d 426 (S.C. 1978) ................................................................................ 722\nNotes, Problems, and Questions ................................................................................ 724\n\nxix\n\n\x0cPreface\nBoth lay persons and budding lawyers continue to be interested in the area of estates and\ntrusts. While I was writing this book, several celebrities died. Certain deaths really attracted the\nattention of the public. Facebook and other social media sites were full of dedications to Prince\nwhen his death was announced. Robin Williams spent his life making us laugh; the tragic\ncircumstances of his death made us sad. After all of the tears, memorials and speculations ceased,\npeople started searching the Internet for copies of the wills. They were interested in the worth of the\nvarious estates and the manner in which those estates would be distributed. They were shocked\nwhen Prince died without leaving a will. They watched legal experts go on television to explain the\nconsequences of Prince\xe2\x80\x99s failure to execute a will. At times, the media coverage was like watching\nthe introduction to a Wills & Trusts class. Prince died a single man with no children. He was\nsurvived by several whole-blood and half-blood siblings. There were even persons coming forth\nclaiming to be his non-marital children. When cases like this occur, people realize that estate\nplanning and probate law are still interesting and relevant.\nThe purpose of this casebook is to train the students to think and act like estate planning\nattorneys. This book is meant to be used in conjunction with a book on the law of trusts. The\nfocus of the book is problem-solving and legal application. The book includes numerous problems,\nso the students can learn to apply the law they learn from reading the cases. It also contains\ncollaborative learning exercises to encourage students to engage in group problem-solving. This\nbook contains less policy than traditional casebooks in the area. Instead the book contains\nnumerous problems that will enable the students to understand and apply the black letter law. The\nbook is divided into three parts to reflect the main types of issues that students will encounter if they\npractice elder or estate planning law. The order of the book mirrors the manner in which estate\nplanning law is practiced in the real world.\nThe book starts with an examination of the intestacy system because the majority of people\ndie without executing a will. Therefore, most of the legal issues an estate planning lawyer faces\ncenter around the intestacy system. Unlike the typical wills casebook, this book provides a detailed\ndiscussion of the intestacy system. A chapter on ethics is included because estate planning attorneys\nencounter ethical issues that are different from persons practicing in other areas of law.\nThe second part of the book includes an exploration of the testacy system. It is arranged so\nprofessors can lead students from the client interview to the will execution. The first three chapters\nof this section deal with issues that directly impact the existence of the inheritance system. It\nanalyzes a person\xe2\x80\x99s ability to control the disposition of his or her property after death. This serves\nas the students\xe2\x80\x99 first introduction to the power of the \xe2\x80\x9cdead hand\xe2\x80\x9d. These chapters are included to\nstart a public policy discussion about the rights of the dead, the right of heirs, and the necessity of an\ninheritance system. I tell my students that, when executing a will, they must think of the ways that it\ncan be contested. In addition, I tell them that a will can be contested on two fronts-an attack on the\ntestator and an attack on the will. Two chapters in this part highlight the various ways that someone\nmight question the testator\xe2\x80\x99s ability to execute a valid will.\nThe final chapters in this unit show the issues that can be raised to dispute the validity of the\nwill. They also explain the different types of wills that are available. The final part of the book deals\nwith non-probate transfers. These chapters are included to show students the other devises that\npeople can use to dispose of their property. That knowledge is important because a significant\nxx\n\n\x0cnumber of people use these devices to transfer their property. For example, at the end of the\nsemester, my students have to draft a will based upon a fact pattern that I give them. I intentionally\ninclude non-probate property in order to see if they will attempt to distribute that using the will.\nMost of the litigation that occurs in the estates and trusts area center around family\ndisputes. Consequently, the book devotes a significant amount of time analyzing family dynamics.\nTo that end, the book discusses the ways in which families are legally formed.\n\nxxi\n\n\x0cPart I \xe2\x80\x93 The Intestacy System\nChapter One: Ethically Representing the Elderly Client\n1.1\n\nIntroduction\n\nAs an estate planning attorney most of the clients you encounter will be elderly or vulnerable\nin some way. This is the case because the young and the healthy do not usually think about estate\nplanning. Representing elderly clients can be challenging for a variety of reasons. This chapter will\nexamine some of the most common problems an estate planning attorney may face when\nrepresenting an elderly or disabled client. All lawyers are bound by the rules of professional\nresponsibility. The fact that estate planning attorneys are often considered to be lawyers for the\n\xe2\x80\x9centire family\xe2\x80\x9d may lead to conflicts of interests and other ethical problems.\nThe law is moderately clear-cut when it comes to the rights and responsibilities of minor\nchildren. For example, the law makes it clear that, as a general rule, persons under the age of\nmajority are prevented from entering into transactions that are legally binding. In additional, parents\nare permitted to speak for their minor and/or permanently disabled children. Nevertheless, it is\nunclear when the tables should be turned. When should children be allowed to make decisions for\ntheir elderly parents? This inquiry presents problems for practicing lawyers. Adult children\nfrequently believe that the moment their parents start having cognitive problems it is legally\npermissible for them to make decisions for their parents. The baby boomers are aging, so the elderly\npopulation will continue to increase. Therefore, attorneys are going to find themselves representing\na greater number of elderly clients.\nThe representation of elderly clients may present unique challenges for estate planning\nattorneys. Lawyers who represent older clients often fail to follow some of the Model Rules of\nProfessional Conduct. For instance, attorneys typically have discussions with their elderly clients in\nthe presence of their adult children. That makes sense as a practical matter because the adult child is\noften the one who contacts the attorney, arranges the meeting, and brings the elderly client to the\nattorney\xe2\x80\x99s office. Yet, that action may cause the attorney to violate Model Rule 1.6 that protects the\nclient\xe2\x80\x99s confidentiality.\n1.2\n\nClient Identification\n\nAll lawyers have an ethical obligation to make it very clear who they represent. The person\nwho hires the attorney and pays the bills may not be the client. The client is the person whose\ninterests are most at stake in the legal planning or legal problem. The attorney owes the professional\nduties of competence, diligence, loyalty and confidentiality to the client, not the family. It is crucial\nto make this distinction in estate planning law cases because family members may be involved in the\nlegal concerns of the older person, and may even have a stake in the case. It is possible, in some\nsituations, for an attorney to represent more than one member of the same family. For instance, that\nmay be a common practice when the attorney is dealing with a married couple.\n\n1\n\n\x0c1.3\n\nConflict of Interest\n\nLawyers have an ethical duty to avoid conflicts of interest. This means that, in most\nsituations, a lawyer may only represent one individual. For example, when legal estate planning\ninvolves property, such as the family home, in which several people have an interest, these interests\nare actually or potentially conflicting. Sometimes joint representation is possible, even with a\npotential conflict of interest, if the client gives informed consent to the representation in writing.\nHowever, the attorney should be very careful. This is particularly true when the client is an elderly\nperson executing a will or a testamentary trust because there is a third party who has the potential to\nbenefit from the attorney\xe2\x80\x99s actions. The next case involves a situation where the lawyer represented\nthe testator and a devisee.\n\nChase v. Bowen, 771 So.2d 1181 (Fla. Dist. Ct. App. 2000)\nHARRIS, J.\nNaomi Chase sued Lennon Bowen for legal malpractice because he prepared her mother\xe2\x80\x99s revised\nwill omitting Naomi as a beneficiary and instead making major bequests to her mother\xe2\x80\x99s business\nassociates, the Lavenders. Her claim is based on her allegation that Bowen was \xe2\x80\x9cher lawyer\xe2\x80\x9d as well\nas the lawyer for her mother and the Lavenders and that Bowen was \xe2\x80\x9cmandated ... by the ethical\nobligations imposed by his profession\xe2\x80\x9d to notify her, her mother and the Lavenders of his\n\xe2\x80\x9cirreconcilable conflict of interest\xe2\x80\x9d in preparing her mother\xe2\x80\x99s rewrite of her will. The trial court\xe2\x80\x99s\nsummary judgment in favor of Bowen is now before us. We affirm.\nAlthough there is no dispute that Bowen has from time to time during the relevant years represented\nthe daughter, her mother and the Lavenders, the record is not clear exactly what, at the time of the\npreparation of the mother\xe2\x80\x99s contested amended will and trust, the nature of Bowen\xe2\x80\x99s alleged\nrepresentation of Naomi was. She alleges only that, \xe2\x80\x9cBeginning in 1988 and continuing through\n1996, ... Bowen drafted will and trust documents for [Naomi] and redrafted the will and amended\nthe trust agreement of [the mother].\xe2\x80\x9d\nNaomi apparently believes that Rule 4\xe2\x80\x931.7, \xe2\x80\x9cConflict of Interest; general rule,\xe2\x80\x9d requires that if a\nlawyer represents a group of people in one matter or in various matters, he must necessarily get the\napproval of all in order to represent any one of such group in an unrelated matter. We do not so\nread the rule. If a lawyer prepares the wills of various members of a family, he thereby assumes no\nobligation to oppose any testator or testatrix from changing such will. Nor is he precluded from\nassisting such testator or testatrix in the redrafting. There are no allegations that Bowen conspired\nwith the Lavenders to induce the mother to change her will nor is there an allegation that Bowen\nused his influence to bring about the mother\xe2\x80\x99s change of heart. Naomi simply had no legal right to\nobject to Bowen representing her mother when the mother desired to change her previous will\nprepared by him.\nWe believe the supreme court in The Florida Bar v. Moore, 194 So.2d 264, 269 (Fla. 1966), explained\nthe principle behind the rule when it stated:\nWe are of the opinion that a lawyer represents conflicting interests, within the\n2\n\n\x0cmeaning of the Canon, when it becomes his duty, on behalf of one client, to\ncontend for that which his duty to another client would require him to oppose.\nIt is our view that a lawyer who prepares a will owes no duty to any previous beneficiary, even a\nbeneficiary he may be representing in another matter, to oppose the testator or testatrix in changing\nhis or her will and, therefore, that assisting in that change is not a conflict of interest.\nAFFIRMED.\n1.4\n\nConfidentiality\n\nLawyers have an obligation to keep information and communication between them and their\nclients confidential. Thus, attorneys cannot share client information with other family members\nwithout obtaining approval from the clients. The amount of information a client is willing to permit\nhis or her attorney to disclose may vary. Some clients may be comfortable having their attorneys\nshare all of the information and having family members participate in the discussions. On the other\nhand, some clients may only want their family members to be given general updates. There are also\nclients who may demand complete confidentiality. The attorney needs to establish the limitations of\ndisclosure during the initial consultation. In all cases, one of the attorney\xe2\x80\x99s main objectives should be\nto keep his or her clients fully informed. In some cases, accomplishing that goal may be complicated\nby the duty to keep certain information confidential.\nConfidentiality issues often occur when an attorney chooses to represent two or more\npersons with competing interests. A prime example of this situation is when a husband and wife\nretain an attorney to execute a will. Lawyers routinely take these types of cases because many\ncouples may want reciprocal wills. There are several reasons why this type of dual representation\ncan lead to problems. First, one party may have a secret that is relevant to the distribution of the\nestates. For instance, if a husband is having an affair, the wife may not be willing to make him the\nsole beneficiary of her estate. The lawyer usually becomes aware of the other woman when the man\nseeks to include her in his testamentary plans by secretly leaving her a portion of his estate. Second,\none or both of the clients may be in a second marriage. This is relevant because there may be\nchildren who are not children of the second marriage. Consequently, one or both of the clients may\ntry to get the attorney to draft a testamentary document that leaves a portion of the estate to a child\nwithout the stepparent\xe2\x80\x99s knowledge. Finally, for whatever reason, one of the parties may contact the\nattorney to have his or her will modified in a way that is detrimental to the other party. Since the\npurpose of reciprocal or mutual wills is to make sure that each person inherits the other person\xe2\x80\x99s\nestate, the modification may put the attorney in the position of acting in a way that is not in the best\ninterests of one of his or her clients.\n\nA. v. B., 726 A2d 924 (N.J. 1999)\nPOLLOCK, J.\nThis appeal presents the issue whether a law firm may disclose confidential information of one coclient to another co-client. Specifically, in this paternity action, the mother\xe2\x80\x99s former law firm, which\ncontemporaneously represented the father and his wife in planning their estates, seeks to disclose to\n3\n\n\x0cthe wife the existence of the father\xe2\x80\x99s illegitimate child.\nA law firm, Hill Wallack (described variously as \xe2\x80\x9cthe law firm\xe2\x80\x9d or \xe2\x80\x9cthe firm\xe2\x80\x9d), jointly represented the\nhusband and wife in drafting wills in which they devised their respective estates to each other. The\ndevises created the possibility that the other spouse\xe2\x80\x99s issue, whether legitimate or illegitimate,\nultimately would acquire the decedent\xe2\x80\x99s property.\nUnbeknown to Hill Wallack and the wife, the husband recently had fathered an illegitimate child.\nBefore the execution of the wills, the child\xe2\x80\x99s mother retained Hill Wallack to institute this paternity\naction against the husband. Because of a clerical error, the firm\xe2\x80\x99s computer check did not reveal the\nconflict of interest inherent in its representation of the mother against the husband. On learning of\nthe conflict, the firm withdrew from representation of the mother in the paternity action. Now, the\nfirm wishes to disclose to the wife the fact that the husband has an illegitimate child. To prevent Hill\nWallack from making that disclosure, the husband joined the firm as a third-party defendant in the\npaternity action.\nIn the Family Part, the husband, represented by new counsel, Fox, Rothschild, O\xe2\x80\x99Brien & Frankel\n(\xe2\x80\x9cFox Rothschild\xe2\x80\x9d), requested restraints against Hill Wallack to prevent the firm from disclosing to\nhis wife the existence of the child. The Family Part denied the requested restraints. The Appellate\nDivision reversed and remanded \xe2\x80\x9cfor the entry of an order imposing preliminary restraints and for\nfurther consideration.\xe2\x80\x9d\nHill Wallack then filed motions in this Court seeking leave to appeal, to present oral argument, and\nto accelerate the appeal. Pursuant to Rule 2:8\xe2\x80\x933(a), we grant the motion for leave to appeal,\naccelerate the appeal, reverse the judgment of the Appellate Division and remand the matter to the\nFamily Part. Hill Wallack\xe2\x80\x99s motion for oral argument is denied.\nI.\nAlthough the record is both informal and attenuated, the parties agree substantially on the relevant\nfacts. Because the Family Part has sealed the record, we refer to the parties without identifying them\nby their proper names. So viewed, the record supports the following factual statement.\nIn October 1997, the husband and wife retained Hill Wallack, a firm of approximately sixty lawyers,\nto assist them with planning their estates. On the commencement of the joint representation, the\nhusband and wife each signed a letter captioned \xe2\x80\x9cWaiver of Conflict of Interest.\xe2\x80\x9d In explaining the\npossible conflicts of interest, the letter recited that the effect of a testamentary transfer by one\nspouse to the other would permit the transferee to dispose of the property as he or she desired. The\nfirm\xe2\x80\x99s letter also explained that information provided by one spouse could become available to the\nother. Although the letter did not contain an express waiver of the confidentiality of any such\ninformation, each spouse consented to and waived any conflicts arising from the firm\xe2\x80\x99s joint\nrepresentation.\nUnfortunately, the clerk who opened the firm\xe2\x80\x99s estate planning file misspelled the clients\xe2\x80\x99 surname.\nThe misspelled name was entered in the computer program that the firm uses to discover possible\nconflicts of interest. The firm then prepared reciprocal wills and related documents with the names\nof the husband and wife correctly spelled.\n4\n\n\x0cIn January 1998, before the husband and wife executed the estate planning documents, the mother\ncoincidentally retained Hill Wallack to pursue a paternity claim against the husband. This time, when\nmaking its computer search for conflicts of interest, Hill Wallack spelled the husband\xe2\x80\x99s name\ncorrectly. Accordingly, the computer search did not reveal the existence of the firm\xe2\x80\x99s joint\nrepresentation of the husband and wife. As a result, the estate planning department did not know\nthat the family law department had instituted a paternity action for the mother. Similarly, the family\nlaw department did not know that the estate planning department was preparing estate plans for the\nhusband and wife.\nA lawyer from the firm\xe2\x80\x99s family law department wrote to the husband about the mother\xe2\x80\x99s paternity\nclaim. The husband neither objected to the firm\xe2\x80\x99s representation of the mother nor alerted the firm\nto the conflict of interest. Instead, he retained Fox Rothschild to represent him in the paternity\naction. After initially denying paternity, he agreed to voluntary DNA testing, which revealed that he\nis the father. Negotiations over child support failed, and the mother instituted the present action.\nAfter the mother filed the paternity action, the husband and wife executed their wills at the Hill\nWallack office. The parties agree that in their wills, the husband and wife leave their respective\nresiduary estates to each other. If the other spouse does not survive, the contingent beneficiaries are\nthe testator\xe2\x80\x99s issue. The wife\xe2\x80\x99s will leaves her residuary estate to her husband, creating the possibility\nthat her property ultimately may pass to his issue. Under N.J.S.A. 3B:1-3, the term \xe2\x80\x9cissue\xe2\x80\x9d includes\nboth legitimate and illegitimate children. When the wife executed her will, therefore, she did not\nknow that the husband\xe2\x80\x99s illegitimate child ultimately may inherit her property.\nThe conflict of interest surfaced when Fox Rothschild, in response to Hill Wallack\xe2\x80\x99s request for\ndisclosure of the husband\xe2\x80\x99s assets, informed the firm that it already possessed the requested\ninformation. Hill Wallack promptly informed the mother that it unknowingly was representing both\nthe husband and the wife in an unrelated matter.\nHill Wallack immediately withdrew from representing the mother in the paternity action. It also\ninstructed the estate planning department not to disclose any information about the husband\xe2\x80\x99s assets\nto the member of the firm who had been representing the mother. The firm then wrote to the\nhusband stating that it believed it had an ethical obligation to disclose to the wife the existence, but\nnot the identity, of his illegitimate child. Additionally, the firm stated that it was obligated to inform\nthe wife \xe2\x80\x9cthat her current estate plan may devise a portion of her assets through her spouse to that\nchild.\xe2\x80\x9d The firm suggested that the husband so inform his wife and stated that if he did not do so, it\nwould. Because of the restraints imposed by the Appellate Division, however, the firm has not\ndisclosed the information to the wife.\nII.\nThis appeal concerns the conflict between two fundamental obligations of lawyers: the duty of\nconfidentiality, Rules of Professional Conduct (RPC) 1.6(a), and the duty to inform clients of material\nfacts, RPC 1.4(b). The conflict arises from a law firm\xe2\x80\x99s joint representation of two clients whose\ninterests initially were, but no longer are, compatible.\nCrucial to the attorney-client relationship is the attorney\xe2\x80\x99s obligation not to reveal confidential\ninformation learned in the course of representation. Thus, RPC 1.6(a) states that \xe2\x80\x9c[a] lawyer shall not\nreveal information relating to representation of a client unless the client consents after consultation,\n5\n\n\x0cexcept for disclosures that are impliedly authorized in order to carry out the representation.\xe2\x80\x9d\nGenerally, \xe2\x80\x9cthe principle of attorney-client confidentiality imposes a sacred trust on the attorney not\nto disclose the client\xe2\x80\x99s confidential communication.\xe2\x80\x9d State v. Land, 73 N.J. 24, 30, 372 A.3d (1977).\nA lawyer\xe2\x80\x99s obligation to communicate to one client all information needed to make an informed\ndecision qualifies the firm\xe2\x80\x99s duty to maintain the confidentiality of a co-client\xe2\x80\x99s information. RPC\n1.4(b), which reflects a lawyer\xe2\x80\x99s duty to keep clients informed, requires that \xe2\x80\x9c[a] lawyer shall explain a\nmatter to the extent reasonably necessary to permit the client to make informed decisions regarding\nthe representation.\xe2\x80\x9d See also Gantam v. De Luca, 215 N.J. Super. 388, 397, 521 A.2d 1343\n(App.Div.1987)(stating that attorney has continuing duty \xe2\x80\x9cto inform his client promptly of any\ninformation important to him\xe2\x80\x9d); Passanante v. Yormark, 138 N.J.Super. 233, 238, 350 A.2d 497\n(App.Div.1975) (\xe2\x80\x9c[An attorney\xe2\x80\x99s] duty includes the obligation of informing his client promptly of\nany known information important to him.\xe2\x80\x9d). In limited situations, moreover, an attorney is\npermitted or required to disclose confidential information. Hill Wallack argues that RPC 1.6\nmandates, or at least permits, the firm to disclose to the wife the existence of the husband\xe2\x80\x99s\nillegitimate child. RPC 1.6(b) requires that a lawyer disclose \xe2\x80\x9cinformation relating to representation\nof a client\xe2\x80\x9d to the proper authorities if the lawyer \xe2\x80\x9creasonably believes\xe2\x80\x9d that such disclosure is\nnecessary to prevent the client \xe2\x80\x9cfrom committing a criminal, illegal or fraudulent act that the lawyer\nreasonably believes is likely to result in death or substantial bodily harm or substantial injury to the\nfinancial interest or property of another.\xe2\x80\x9d RPC 1.6(b)(1). Despite Hill Wallack\xe2\x80\x99s claim that RPC\n1.6(b) applies, the facts do not justify mandatory disclosure. The possible inheritance of the wife\xe2\x80\x99s\nestate by the husband\xe2\x80\x99s illegitimate child is too remote to constitute \xe2\x80\x9csubstantial injury to the\nfinancial interest or property of another\xe2\x80\x9d within the meaning of RPC 1.6(b).\nBy comparison, in limited circumstances RPC 1.6(c) permits a lawyer to disclose a confidential\ncommunication. RPC 1.6(c) permits, but does not require, a lawyer to reveal confidential\ninformation to the extent the lawyer reasonably believes necessary \xe2\x80\x9cto rectify the consequences of a\nclient\xe2\x80\x99s criminal, illegal or fraudulent act in furtherance of which the lawyer\xe2\x80\x99s services had been\nused.\xe2\x80\x9d RPC 1.6(c)(1). Although RPC 1.6(c) does not define a \xe2\x80\x9cfraudulent act,\xe2\x80\x9d the term takes on\nmeaning from our construction of the word \xe2\x80\x9cfraud,\xe2\x80\x9d found in the analogous \xe2\x80\x9ccrime or fraud\xe2\x80\x9d\nexception to the attorney-client privilege. See N.J.R.E. 504(a)(excepting from attorney-client privilege\n\xe2\x80\x9ca communication in the course of legal service sought or obtained in the aid of the commission of\na crime or fraud\xe2\x80\x9d); Kevin H. Michels, New Jersey Attorney Ethics \xc2\xa7 15:3\xe2\x80\x933 at 280 (1998) (\xe2\x80\x9cWhile the\nRPCs no longer incorporate the attorney-client privilege into the definition of confidential\ninformation, prior constructions of the fraud exception may be relevant in interpreting the\nexceptions to confidentiality contained in RPC 1.6(b) and (c) ....\xe2\x80\x9d) (internal citation omitted). When\nconstruing the \xe2\x80\x9ccrime or fraud\xe2\x80\x9d exception to the attorney-client privilege, \xe2\x80\x9cour courts have generally\ngiven the term \xe2\x80\x98fraud\xe2\x80\x99 an expansive reading.\xe2\x80\x9d Fellerman v. Bradley, 99 N.J. 493, 503-04, 493 A.2d 1239\n(1985).\nWe likewise construe broadly the term \xe2\x80\x9cfraudulent act\xe2\x80\x9d within the meaning of RPC 1.6(c). So\nconstrued, the husband\xe2\x80\x99s deliberate omission of the existence of his illegitimate child constitutes a\nfraud on his wife. When discussing their respective estates with the firm, the husband and wife\nreasonably could expect that each would disclose information material to the distribution of their\nestates, including the existence of children who are contingent residuary beneficiaries. The husband\nbreached that duty. Under the reciprocal wills, the existence of the husband\xe2\x80\x99s illegitimate child could\naffect the distribution of the wife\xe2\x80\x99s estate, if she predeceased him. Additionally, the husband\xe2\x80\x99s child\nsupport payments and other financial responsibilities owed to the illegitimate child could deplete\n6\n\n\x0cthat part of his estate that otherwise would pass to his wife.\nFrom another perspective, it would be \xe2\x80\x9cfundamentally unfair\xe2\x80\x9d for the husband to reap the \xe2\x80\x9cjoint\nplanning advantages of access to information and certainty of outcome,\xe2\x80\x9d while denying those same\nadvantages to his wife. Teresa S. Collett, Disclosure, Discretion, or Deception: The Estate Planner\xe2\x80\x99s Ethical\nDilemma from a Unilateral Confidence, 28 Real Prop. Prob. Tr. J. 683, 743 (1994). In effect, the husband\nhas used the law firm\xe2\x80\x99s services to defraud his wife in the preparation of her estate.\nThe New Jersey RPCs are based substantially on the American Bar Association Model Rules of Professional\nConduct (\xe2\x80\x9cthe Model Rules\xe2\x80\x9d). RPC 1.6, however, exceeds the Model Rules in authorizing the disclosure\nof confidential information. A brief review of the history of the Model Rules and of RPC 1.6 confirms\nNew Jersey\xe2\x80\x99s more expansive commitment to the disclosure of confidential client information.\nIn 1977, the American Bar Association appointed a Commission on Evaluation of Professional\nStandards, chaired by the late Robert J. Kutak. The Commission, generally known as the \xe2\x80\x9cKutak\nCommission,\xe2\x80\x9d originally proposed a rule that permitted a lawyer to disclose confidential information\nin circumstances comparable to those permitted by RPC 1.6, The House of Delegates of the\nAmerican Bar Association, however, rejected the Kutak Commission\xe2\x80\x99s recommendation. As adopted\nby the American Bar Association, Model Rule 1.6(b) permits a lawyer to reveal confidential\ninformation only \xe2\x80\x9cto the extent the lawyer reasonably believes necessary to prevent the client from\ncommitting a criminal act that the lawyer believes is likely to result in imminent death or substantial\nbodily harm.\xe2\x80\x9d Unlike RPC 1.6, Model Rule 1.6 does not except information relating to the\ncommission of a fraudulent act or that relating to a client\xe2\x80\x99s act that is likely to result in substantial\nfinancial injury. In no situation, moreover, does Model Rule 1.6 require disclosure. Thus, the Model\nRules provide for narrower disclosure than that authorized by RPC 1.6.\nIn 1982, this Court appointed a committee to consider the Model Rules. The committee, chaired by\nthe Honorable Dickinson R. Debevoise, became known as the \xe2\x80\x9cDebevoise Committee.\xe2\x80\x9d It\ndetermined that the original provisions proposed by the Kutak Commission more closely reflected\nthe existing ethics rules in New Jersey. Thus, the Committee concluded that Model Rule 1.6 would\n\xe2\x80\x9cnarrow radically the circumstances in which New Jersey attorneys either may or must disclose the\ninformation of their clients\xe2\x80\x99 criminal or fraudulent behavior.\xe2\x80\x9d Report of the New Jersey Supreme Court\nCommittee on the Model Rules of Professional Conduct (1983), reprinted in Michels, supra, Appendix D at\n1043. When adopting the RPC s, this Court substantially followed the recommendation of the\nDebevoise Committee. Described as an \xe2\x80\x9copenly-radical experiment,\xe2\x80\x9d Geoffrey C. Hazard, Jr. & W.\nWilliam Hodes, 2 The Law of Lawyering \xc2\xa7 AP4:104 (1998), RPC 1.6 \xe2\x80\x9ccontained the most far-reaching\ndisclosure requirements of any attorney code of conduct in the country,\xe2\x80\x9d Leslie C. Levin, Testing the\nRadical Experiment: A Study of Lawyer Response to Clients Who Intend to Harm Others, 47 Rutgers L. Rev.\n81, 92 (1994).\nUnder RPC 1.6, the facts support disclosure to the wife. The law firm did not learn of the husband\xe2\x80\x99s\nillegitimate child in a confidential communication from him. Indeed, he concealed that information\nfrom both his wife and the firm. The law firm learned about the husband\xe2\x80\x99s child through its\nrepresentation of the mother in her paternity action against the husband. Accordingly, the husband\xe2\x80\x99s\nexpectation of nondisclosure of the information may be less than if he had communicated the\ninformation to the firm in confidence.\nIn addition, the husband and wife signed letters captioned \xe2\x80\x9cWaiver of Conflict of Interest.\xe2\x80\x9d These\n7\n\n\x0cletters acknowledge that information provided by one client could become available to the other.\nThe letters, however, stop short of explicitly authorizing the firm to disclose one spouse\xe2\x80\x99s\nconfidential information to the other. Even in the absence of any such explicit authorization, the\nspirit of the letters supports the firm\xe2\x80\x99s decision to disclose to the wife the existence of the husband\xe2\x80\x99s\nillegitimate child.\nNeither our research nor that of counsel has revealed a dispositive judicial decision from this or any\nother jurisdiction on the issue of disclosure of confidential information about one client to a coclient. Persuasive secondary authority, however, supports the conclusion that the firm may disclose\nto the wife the existence of the husband\xe2\x80\x99s child.\nThe forthcoming Restatement (Third) of The Law Governing Lawyers \xc2\xa7 112 comment l (Proposed\nFinal Draft No. 1, 1996) (\xe2\x80\x9cthe Restatement \xe2\x80\x9d) suggests, for example, that if the attorney and the coclients have reached a prior, explicit agreement concerning the sharing of confidential information,\nthat agreement controls whether the attorney should disclose the confidential information of one\nco-client to another. Ibid. (\xe2\x80\x9cCo-clients ... may explicitly agree to share information\xe2\x80\x9d and \xe2\x80\x9ccan also\nexplicitly agree that the lawyer is not to share certain information ... with one or more other coclients. A lawyer must honor such agreements.\xe2\x80\x9d); see also Report of the ABA Special Study Committee on\nProfessional Responsibility: Comments and Recommendations on the Lawyer\xe2\x80\x99s Duties in Representing Husband and\nWife, 28 Real Prop. Prob. Tr. J. 765, 787 (1994)(\xe2\x80\x9cAlthough legally and ethically there is no need for a\nprior discussion and agreement with the couple about the mode of representation, discussion and\nagreement are the better practice. The agreement may cover ... the duty to keep or disclose\nconfidences.\xe2\x80\x9d); American College of Trust and Estate Counsel, ACTEC Commentaries on the Model\nRules of Professional Conduct 65\xe2\x80\x9366 (2d ed. 1995) (\xe2\x80\x9cWhen the lawyer is first consulted by the multiple\npotential clients the lawyer should review with them the terms upon which the lawyer will undertake\nthe representation, including the extent to which information will be shared among them.\xe2\x80\x9d).\nAs the preceding authorities suggest, an attorney, on commencing joint representation of co-clients,\nshould agree explicitly with the clients on the sharing of confidential information. In such a\n\xe2\x80\x9cdisclosure agreement,\xe2\x80\x9d the co-clients can agree that any confidential information concerning one\nco-client, whether obtained from a co-client himself or herself or from another source, will be\nshared with the other co-client. Similarly, the co-clients can agree that unilateral confidences or other\nconfidential information will be kept confidential by the attorney. Such a prior agreement will clarify\nthe expectations of the clients and the lawyer and diminish the need for future litigation.\nIn the absence of an agreement to share confidential information with co-clients, the Restatement\nreposes the resolution of the lawyer\xe2\x80\x99s competing duties within the lawyer\xe2\x80\x99s discretion:\n[T]he lawyer, after consideration of all relevant circumstances, has the ... discretion to inform the\naffected co-client of the specific communication if, in the lawyer\xe2\x80\x99s reasonable judgment, the\nimmediacy and magnitude of the risk to the affected co-client outweigh the interest of the\ncommunicating client in continued secrecy.\n[Restatement (Third) of The Law Governing Lawyers, supra, \xc2\xa7 112 comment l.]\nAdditionally, the Restatement advises that the lawyer, when withdrawing from representation of the\nco-clients, may inform the affected co-client that the attorney has learned of information adversely\naffecting that client\xe2\x80\x99s interests that the communicating co-client refuses to permit the lawyer to\n8\n\n\x0cdisclose. Ibid.\nIn the context of estate planning, the Restatement also suggests that a lawyer\xe2\x80\x99s disclosure of\nconfidential information communicated by one spouse is appropriate only if the other spouse\xe2\x80\x99s\nfailure to learn of the information would be materially detrimental to that other spouse or frustrate\nthe spouse\xe2\x80\x99s intended testamentary arrangement. (citations omitted).\nBecause Hill Wallack wishes to make the disclosure, we need not reach the issue whether the\nlawyer\xe2\x80\x99s obligation to disclose is discretionary or mandatory. In conclusion, Hill Wallack may inform\nthe wife of the existence of the husband\xe2\x80\x99s illegitimate child.\nFinally, authorizing the disclosure of the existence, but not the identity, of the child will not\ncontravene N.J.S.A. 9:17-42, which provides:\nAll papers and records and any information pertaining to an action or proceeding\nheld under [the New Jersey Parentage Act] which may reveal the identity of any\nparty in an action, other than the final judgment or the birth certificate, whether\npart of the permanent record of the court or of a file with the State registrar of\nvital statistics or elsewhere, are confidential and are subject to inspection only\nupon consent of the court and all parties to the action who are still living, or in\nexceptional cases only upon an order of the court for compelling reason clearly\nand convincingly shown.\nThe law firm learned of the husband\xe2\x80\x99s paternity of the child through the mother\xe2\x80\x99s disclosure before\nthe institution of the paternity suit. It does not seek to disclose the identity of the mother or the\nchild. Given the wife\xe2\x80\x99s need for the information and the law firm\xe2\x80\x99s right to disclose it, the disclosure\nof the child\xe2\x80\x99s existence to the wife constitutes an exceptional case with \xe2\x80\x9ccompelling reason clearly\nand convincingly shown.\xe2\x80\x9d\nThe judgment of the Appellate Division is reversed and the matter is remanded to the Family Part.\nNotes, Problems, and Questions\n1. The secret child problem is more common than you would think. What are some steps that the\nattorney can take during the initial consultation to ensure that he or she is not faced with the\nsituation involved in A. v. B.?\n2. Why did the attorney for the firm argue that the state rules of professional conduct required the\nfirm to tell the wife about her husband\xe2\x80\x99s non-marital child? Why did the court reject that argument?\n3. Why did the court hold that the firm was permitted to disclose the existence of the child under\nthe state rules of professional conduct?\n4. If the court had applied the ABA Model Rules of Professional Conduct instead of the state rules,\nmight the outcome of the case have been the same? Why? Why not?\n5. What safeguards should an attorney representing co-clients take with regards to confidential\n9\n\n\x0cinformation?\n6. In a jurisdiction that adopts the Restatement (Third) of The Law Governing Lawyers, what would\nbe the possible outcome of the case?\n7. Wallace has been retained by Harold and Wanda to prepare wills pursuant to an arrangement\nunder which each spouse agrees to leave most of his or her property to the other. Shortly after the\nwills are executed, Harold (unknown to Wanda) asks Wallace to prepare an inter vivos trust for\nJeremy, the man that Harold has been having an affair with for the last ten years. Harold has kept\nthe fact that he is bisexual from Wanda for many years. Prior to the execution of the wills, Harold\ndid not tell Wallace about Jeremy. Harold states that Wanda would be distraught at learning of\nHarold\xe2\x80\x99s infidelity and of Harold\xe2\x80\x99s silence and that disclosure of the information could destroy their\nmarriage. As a result, Harold directs Wallace not to inform Wanda. The inter vivos trust that\nHarold purposes to create would not materially affect Wanda\xe2\x80\x99s own estate plan or her expected\nreceipt of property under Harold\xe2\x80\x99s will, because Harold proposes to use property designated in\nHarold\xe2\x80\x99s will for a favorite charity to fund the proposed trust. Under the ABA Model Rules, is\nWallace required to disclose the affair to Wanda? Is Wallace permitted to disclose the affair? What\nresult under the Restatement? What result under the rules of professional conduct in your state?\n8. Same facts as Problem 7, except that Harold\xe2\x80\x99s proposed inter vivos trust would significantly\ndeplete Harold\xe2\x80\x99s estate to Wanda\xe2\x80\x99s material detriment and in frustration of the spouses\xe2\x80\x99 intended\ntestamentary arrangements. Harold wants to create the trust because Jeremy is HIV positive and\ncannot work. Under the ABA Model Rules, is Wallace required to disclose the affair to Wanda? Is\nWallace permitted to disclose the affair? What result under the Restatement? What result under the\nrules of professional conduct in your state?\n9. The American College of Trust and Estate Counsel (ACTEC) favors a discretionary rule. It\nrecommends that the \xe2\x80\x9clawyer should have a reasonable degree of discretion in determining how to\nrespond to any particular case.\xe2\x80\x9d The ACTEC suggests that the lawyer first attempt to convince the\nclient to inform the co-client. When urging the client to disclose the information, the lawyer should\nremind the client of the implicit understanding that all information will be shared by both clients.\nThe lawyer also should explain to the client the potential legal consequences of non-disclosure,\nincluding invalidation of the wills. Furthermore, the lawyer may mention that failure to\ncommunicate the information could subject the lawyer to a malpractice claim or disciplinary action.\nThe ACTEC reasons that if unsuccessful in persuading the client to disclose the information, the\nlawyer should consider several factors in deciding whether to reveal the confidential information to\nthe co-client, including: (1) duties of impartiality and loyalty to the clients; (2) any express or implied\nagreement among the lawyer and the joint clients that information communicated by either client to\nthe lawyer regarding the subject of the representation would be shared with the other client; (3) the\nreasonable expectations of the clients; and (4) the nature of the confidence and the harm that may\nresult if the confidence is, or is not, disclosed.\n10. Lawyer has represented Percy and June, his wife, for many years in a range of personal matters,\nincluding estate planning. Percy and June have substantial individual assets, and they also own\nsubstantial jointly-held property. Recently, Lawyer prepared new updated wills that Percy and June\nsigned. Like their previous wills, their new wills primarily benefit the survivor of them for his or her\nlife, with beneficial disposition at the death of the survivor being made equally to their children.\nSeveral months after the execution of the new wills, Percy confers separately with Lawyer. Percy\n10\n\n\x0creveals to Lawyer that he has just executed a codicil prepared by another law firm that makes\nsubstantial beneficial disposition to a woman with whom Percy has been having an extra-marital\nrelationship. Under the ABA Model Rules, is Lawyer required to disclose information about the\ncodicil to June? Is Lawyer permitted to disclose the affair? What result under the Restatement?\nWhat result under the rules of professional conduct in your state?\n\nAmerican Bar Association Model Rule 1.6 Confidentiality of Information\n(a) A lawyer shall not reveal information relating to the representation of a client unless the\nclient gives informed consent, the disclosure is impliedly authorized in order to carry out the\nrepresentation or the disclosure is permitted by paragraph (b).\n(b) A lawyer may reveal information relating to the representation of a client to the extent the\nlawyer reasonably believes necessary:\n(1) to prevent reasonably certain death or substantial bodily harm;\n(2) to prevent the client from committing a crime or fraud that is reasonably certain to result\nin substantial injury to the financial interests or property of another and in furtherance of\nwhich the client has used or is using the lawyer\xe2\x80\x99s services;\n(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of\nanother that is reasonably certain to result or has resulted from the client\xe2\x80\x99s commission\nof a crime or fraud in furtherance of which the client has used the lawyer\xe2\x80\x99s services;\n(4) to secure legal advice about the lawyer\xe2\x80\x99s compliance with these Rules;\n(5) to establish a claim or defense on behalf of the lawyer in a controversy between the\nlawyer and the client, to establish a defense to a criminal charge or civil claim against the\nlawyer\xe2\x80\x99s representation of the client;\n(6) to comply with other law or a court order; or\n(7) to detect and resolve conflicts of interests arising from the lawyer\xe2\x80\x99s change of\nemployment or from changes in the composition or ownership of a firm, but only if the\nrevealed information would not compromise the attorney-client privilege or otherwise\nprejudice the client.\n(c) lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure\nof, or unauthorized access to, information relating to the representation of a client.\n1.5\n\nCompetency\n\nLawyers have special ethical responsibilities in working with clients whose capacity for\nmaking decisions may be diminished. Lawyers must treat the impaired person with the same\nattention and respect to which every client is entitled. This means meeting privately with the client\nand giving him or her enough time to explain what he or she wants. If the client is unable to make\n11\n\n\x0cdecisions due to diminished capacity, and is at risk of serious physical, financial, or other harm, the\nethics rules require attorneys to consider actions to protect that client. Nevertheless, the attorney\nhas to be cautious when taking steps to protect the interests of a diminished client.\n\nAmerican Bar Association Model Rule 1.14 Client With Diminished Capacity\n(a) When a client\xe2\x80\x99s capacity to make adequately considered decisions in connection with a\nrepresentation is diminished, whether because of minority, mental impairment or for some other\nreason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship\nwith the client.\n(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of\nsubstantial physical, financial or other harm unless action is taken and cannot adequately act in the\nclient\xe2\x80\x99s own interest, the lawyer may take reasonably necessary protective action, including\nconsulting individuals or entities that have the ability to take action to protect the client, and in\nappropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.\n*****************\n(d) Information relating to the representation of a client with diminished capacity is protected by\nRule 1.6(a) to reveal information about the client, but only to the extent necessary to protect the\nclient\xe2\x80\x99s interests.\n\nIn re Disciplinary Action Against Kuhn, 785 N.W.2d 195 (N.D. 2010)\nPER CURIAM.\nA hearing panel of the Disciplinary Board recommended attorney Gerald A. Kuhn be suspended\nfrom the practice of law for ninety days and pay the costs of the disciplinary proceeding in the\namount of $2,654.07 for violating N.D.R. Prof. Conduct 1.7(a), Conflict of Interest, and 1.14, Client\nWith Limited Capacity. Counsel for the Disciplinary Board urges this Court to accept the hearing\npanel\xe2\x80\x99s recommendation. Kuhn objects to the hearing panel\xe2\x80\x99s conclusions, arguing they are not\nsupported by clear and convincing evidence. Determining there is clear and convincing evidence\nKuhn violated N.D.R. Prof. Conduct 1.14, we direct that Kuhn be suspended from the practice of\nlaw for ninety days and that he pay the costs of the disciplinary proceeding in the amount of\n$2,654.07.\nI.\nKuhn has been licensed to practice law in the courts of North Dakota since July 8, 1974. Shortly\nafter he started his practice, he began to do tax work for Jake Leno. In 2005, Kuhn wrote a will for\nJake Leno. In that will, Jake Leno devised his condominium to his daughter, Kathleen McKinley.\nIn 2006, McKinley filed a petition for appointment of a guardian/conservator for Jake Leno. The\ndistrict court appointed Guardian and Protective Services, Inc. (\xe2\x80\x9cGAPS\xe2\x80\x9d) as Jake Leno\xe2\x80\x99s temporary\nguardian/conservator. The district court also appointed a physician, guardian ad litem, and visitor to\n12\n\n\x0cmeet with Jake Leno and report back to the district court.\nThe court-appointed physician reported Jake Leno suffered from \xe2\x80\x9cParkinson\xe2\x80\x99s disease with\nconcurrent adult onset diabetes\xe2\x80\x9d and \xe2\x80\x9csome short term memory loss,\xe2\x80\x9d and indicated Jake Leno\nneeded full-time care. The guardian ad litem reported she \xe2\x80\x9cfirmly believe[d] that the proposed ward\nneeds a guardian.\xe2\x80\x9d Jake Leno\xe2\x80\x99s former home health care provider informed the guardian ad litem\nJake Leno \xe2\x80\x9chas Parkinson\xe2\x80\x99s disease and dementia of the Alzheimer\xe2\x80\x99s type.\xe2\x80\x9d The court-appointed\nvisitor also recommended Jake Leno needed a guardian/conservator.\nAt the hearing on the guardianship/conservatorship petition, Kuhn represented Jake Leno\xe2\x80\x99s sons,\nRonald Leno and Randy Leno. Ronald Leno and Randy Leno testified they were willing to serve as\nJake Leno\xe2\x80\x99s guardians/conservators. Jake Leno testified he did not think he needed a\nguardian/conservator. The district court found Jake Leno \xe2\x80\x9chas a current medical diagnosis of\nParkinson\xe2\x80\x99s disease with adult onset diabetes and exhibits short term memory loss.\xe2\x80\x9d The district\ncourt concluded Jake Leno was incapacitated and appointed GAPS full guardian and conservator,\nwith full control over his place of residence, legal matters, financial matters, and medical treatment.\nIn 2007, an unidentified person contacted Kuhn\xe2\x80\x99s office and told Kuhn\xe2\x80\x99s receptionist Jake Leno\nwanted his will changed. Kuhn testified at the disciplinary hearing that he thought an employee of\nGAPS had contacted his office to change the will. However, Kuhn acknowledged he did not contact\nGAPS to verify whether one of its employees had called his office. Kuhn learned later one of Jake\nLeno\xe2\x80\x99s caregivers had contacted his office. After speaking with Jake Leno, Kuhn drafted a new will\nthat gave all of Jake Leno\xe2\x80\x99s property, including the condominium, to the three children equally,\ninstead of devising the condominium solely to McKinley.\nKuhn testified that at the time he wrote the will he \xe2\x80\x9cknew [Jake Leno] had been declared\nincompetent\xe2\x80\x9d and \xe2\x80\x9cthere was allegations that he had dementia of the Alzheimer\xe2\x80\x99s type.\xe2\x80\x9d Kuhn took\ntwo of his employees to Jake Leno\xe2\x80\x99s apartment to act as witnesses as Jake Leno executed the new\nwill. Kuhn testified at the disciplinary hearing regarding his state of mind:\nI was a little uneasy because he was in-under a judicial order that said he was incompetent. So I\nquestioned him, I questioned his caregiver to ask her how he\xe2\x80\x99s doing. And she said, \xe2\x80\x9cOh, he\xe2\x80\x99s fine.\nHe knows what\xe2\x80\x99s going on, and, Jake, he knows.\xe2\x80\x9d And I questioned him in front of the witnessesin front of the two witnesses about the will. Told him exactly what he was doing. And said, \xe2\x80\x9cNow,\nare you sure this is what you want to do? This is what\xe2\x80\x99s going to happen.\xe2\x80\x9d And he said, \xe2\x80\x9cYes.\xe2\x80\x9d So,\nI mean, my impression that day was that he was fine.\nA year later, McKinley sent a letter to Kuhn protesting his actions regarding Jake Leno\xe2\x80\x99s new will.\nKuhn, as preparer of the will, subsequently filed a petition seeking an order determining the validity\nof the will. The district court dismissed the petition, stating, \xe2\x80\x9c[T]he guardianship/conservatorship\ncreated for the Ward Jake Leno, granted to the appointed guardian/conservator full authority for all\nlegal matters on behalf of Jake Leno, effective as of the date of appointment. The attempted\nexecution of a Will thereafter by the Ward Jake Leno is therefore without legal authority and\ntherefore invalid.\xe2\x80\x9d Kuhn did not appeal the district court\xe2\x80\x99s order.\nIn 2009, counsel for the Disciplinary Board filed a petition alleging Kuhn had violated N.D.R. Prof.\nConduct 1.2(a), Scope of Representation and Allocation of Authority Between Client and Lawyer;\n1.4(a)(2) and (b), Communication; 1.7(a) and (c), Conflict of Interest; and 1.14, Client With Limited\n13\n\n\x0cCapacity, by his actions regarding Jake Leno\xe2\x80\x99s guardianship/conservatorship hearing and second\nwill. The allegations in the Petition for Discipline of misconduct assert a violation of N.D.R. Prof.\nConduct 1.7 (a) and (c) which provide that a lawyer shall not represent a client if the lawyer\xe2\x80\x99s ability\nto consider, recommend, or carry out a course of action on behalf of the client will be adversely\naffected by the lawyer\xe2\x80\x99s responsibilities to another client, and a lawyer shall not represent a client if\nthe representation of that client might be adversely affected by the lawyer\xe2\x80\x99s responsibilities to\nanother client, in that Kuhn represented Ronald Leno and Randy Leno at the\nguardianship/conservatorship hearing and thereafter drafted a new will for Jake Leno, purportedly\non Jake Leno\xe2\x80\x99s behalf, which favored the interests of Ronald Leno and Randy Leno.\nThe allegations in the Petition for Discipline of misconduct assert a violation of N.D.R. Prof.\nConduct 1.14, Comment 5\nwhich provides that if the client has an appointed representative, the lawyer\nshould ordinarily look to the representative for decisions on behalf of the client,\nin that Kuhn prepared a new will for Jake Leno without having first looked to\nGuardian & Protective Services, Inc., as the court-appointed guardian and\nconservator of Jake Leno, for decision-making authority to make a new will.\nThe hearing panel found \xe2\x80\x9cKuhn\xe2\x80\x99s testimony that he believed that GAPS was aware of Jake Leno\xe2\x80\x99s\ndesire to make a new will is not credible.\xe2\x80\x9d The hearing panel concluded Kuhn had violated N.D.R.\nProf. Conduct (a), Conflict of Interest, because he:\nRepresented Ronald and Randy, who were seeking appointment as\nguardians/conservators over Kuhn\xe2\x80\x99s long-time client, Jake, and then drafted a\nnew will for Jake, which favored the interests of Ronald and Randy, after Kuhn\nhad represented Ronald and Randy at the guardianship/conservatorship hearing\nand after Jake had been judicially declared incapacitated.\nThe hearing panel also concluded Kuhn violated N.D.R. Prof. Conduct 1.14, Client With Limited\nCapacity, when he \xe2\x80\x9cprepared a new will for Jake without communicating with or securing decisionmaking authority from GAPS, the court-appointed guardian and conservator with full authority over\nJake\xe2\x80\x99s legal matters.\xe2\x80\x9d In recommending discipline, the hearing panel considered the following\naggravating factors:\nStandard 9.22(a), N.D. Stds. Imposing Lawyer Sanctions, a prior disciplinary offense;\nStandard 9.22(c), a pattern of misconduct;\nStandard 9.22(h), vulnerability of the victim, and\nStandard 9.22(I), substantial experience in the practice of law.\nThe hearing panel considered as a mitigating factor Standard 9.32(e), \xe2\x80\x9cfull and free disclosure to\ndisciplinary board or cooperative attitude toward proceedings.\xe2\x80\x9d N.D. Stds. Imposing Lawyer\nSanctions 9.32(e). The hearing panel considered suspension the most appropriate sanction under\nN.D. Stds. Imposing Lawyer Sanctions 4.32 and 8.2 and recommended Kuhn be suspended from\nthe practice of law for ninety days and pay the costs of the disciplinary proceeding in the amount of\n$2,654.07.\nKuhn subsequently filed an objection to the hearing panel\xe2\x80\x99s report. Kuhn objected to the hearing\n14\n\n\x0cpanel\xe2\x80\x99s finding that his testimony was not credible. He also objected to the hearing panel\xe2\x80\x99s\nconclusions that he had violated N.D.R. Prof. Conduct 1.7(a) and 1.14.\nII.\nThis Court reviews disciplinary proceedings de novo on the record. Disciplinary Board v. Askew, 2010\nND 7, 776 N.W.2d 816 (citing Disciplinary Board v. Light, 2009 ND 83, 765 N.W.2d 536). Counsel for\nthe Disciplinary Board must prove each alleged violation by clear and convincing evidence, which\nmeans the trier of fact must be reasonably satisfied with the facts the evidence tends to prove and\nthus be led to a firm belief or conviction. Id. \xe2\x80\x9cWe give due weight to the findings, conclusions, and\nrecommendations of the Disciplinary Board, but we do not act as a mere rubber stamp for the\nBoard.\xe2\x80\x9d Id.\nA.\nRule 1.7(a) of the North Dakota Rules of Professional Conduct states, \xe2\x80\x9cA lawyer shall not represent\na client if the lawyer\xe2\x80\x99s ability to consider, recommend, or carry out a course of action on behalf of\nthe client will be adversely affected by the lawyer\xe2\x80\x99s responsibilities to another client or to a third\nperson, or by the lawyer\xe2\x80\x99s own interests.\xe2\x80\x9d The hearing panel concluded Kuhn violated the rule when\nhe:\nRepresented Ronald and Randy, who were seeking appointment as\nguardians/conservators over Kuhn\xe2\x80\x99s long-time client, Jake, and then drafted a\nnew will for Jake, which favored the interests of Ronald and Randy, after Kuhn\nhad represented Ronald and Randy at the guardianship/conservatorship hearing\nand after Jake had been judicially declared incapacitated.\nKuhn argues the hearing panel\xe2\x80\x99s conclusion is not supported by clear and convincing evidence. He\nasserts no conflict existed because he did not represent Jake Leno at the time of the\nguardianship/conservatorship hearing, and he did not represent Ronald Leno and Randy Leno at\nthe time Jake Leno made his second will. Counsel for the Disciplinary Board did not allege Kuhn\nhad violated N.D.R. Prof. Conduct 1.9, Duties to Former Client. Rather, counsel for the\nDisciplinary Board argues clear and convincing evidence shows Kuhn\xe2\x80\x99s alternating representation of\nJake Leno and his sons created a conflict of interest under N.D.R. Prof. Conduct 1.7(a).\nThe record does not include clear and convincing evidence Jake Leno was Kuhn\xe2\x80\x99s client at the time\nof the guardianship/conservatorship hearing. The record indicates Kuhn did tax work for Jake Leno\nmultiple times since 1974 and drafted a will for him in 2005. The record does not explain the course\nof dealing between Kuhn and Jake Leno; whether Jake Leno hired Kuhn on retainer or whether they\nentered into a new contract each time Jake Leno requested Kuhn perform a task. Without such an\nexplanation, Jake Leno\xe2\x80\x99s status as a current or former client of Kuhn is unclear. See Restatement\n(Third) of the Law Governing Lawyers \xc2\xa7 31(2)(e) (2000) (explaining the relationship between a\nlawyer and a client \xe2\x80\x9cends as provided by contract or because the lawyer has completed the\ncontemplated services\xe2\x80\x9d). The record also does not include an explanation of Jake Leno\xe2\x80\x99s\nunderstanding of his professional relationship with Kuhn. See Restatement (Third) of the Law\nGoverning Lawyers \xc2\xa718(2) (2000)(stating a contract between a lawyer and a client should be\nconstrued \xe2\x80\x9cas a reasonable person in the circumstances of the client would have construed it\xe2\x80\x9d). In\nexamining the allegations in the petition for discipline and the findings of the hearing panel we are\n15\n\n\x0cuncertain as to the client relationships that existed at the times the hearing panel found the\nviolations to have occurred. Rule 1.7(a) prohibits a lawyer from representing a client if it will\nadversely affect the lawyer\xe2\x80\x99s responsibilities to another client. The rule does not prohibit all\nalternating representation but appears to assume a client relationship at the time of the violation.\nWithout clear and convincing evidence Jake Leno was Kuhn\xe2\x80\x99s client at the time of the\nguardianship/conservatorship hearing, the hearing panel\xe2\x80\x99s conclusion that Kuhn violated N.D.R.\nProf. Conduct 1.7 (a), Conflict of Interest, is not supported by the record.\nB.\nRule 1.14 of the North Dakota Rules of Professional Conduct states, in pertinent part:\n(a) When a client\xe2\x80\x99s capacity to make adequately considered decisions in connection with a\nrepresentation is limited, whether because of minority, mental impairment, or for some other\nreason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship\nwith the client.\n(b) When the lawyer reasonably believes that the client has limited capacity, is at risk of substantial\nphysical, financial, or other harm unless action is taken, and the client cannot adequately act in the\nclient\xe2\x80\x99s own interest, the lawyer may take reasonably necessary protective action, including\nconsulting with individuals or entities that have the ability to take action to protect the client and,\nin appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.\nComment 5 of the rule states, \xe2\x80\x9cIf the client has an appointed representative, the lawyer should\nordinarily look to the representative for decisions on behalf of the client. The lawyer should be\ncognizant of the extent of the powers and duties conferred upon the client\xe2\x80\x99s appointed\nrepresentative.\xe2\x80\x9d N.D.R. Prof. Conduct 1.14, comment 5. The hearing panel concluded Kuhn\nviolated Rule 1.14 when he \xe2\x80\x9cprepared a new will for Jake without communicating with or securing\ndecision-making authority from GAPS, the court-appointed guardian and conservator with full\nauthority over Jake\xe2\x80\x99s legal matters.\xe2\x80\x9d\nKuhn argues he did not violate Rule 1.14 because he was abiding by his client\xe2\x80\x99s wishes. Kuhn cites\nComment 3 of Rule 1.14:\nThe fact that a client is a minor or has limited capacity does not diminish the\nlawyer\xe2\x80\x99s obligation to treat the client with attention and respect. Even if the\nperson has an appointed representative, the lawyer should as far as possible\naccord the represented person the status of client, particularly in maintaining\ncommunication. Appointed representatives include guardians ad litem,\nconservators, guardians, individuals appointed in a durable power of attorney or\nin an advanced health care directive.\nKuhn argues he was fulfilling his duty to give Jake Leno attention and respect when he drafted the\nnew will.\nKuhn concedes he had a responsibility to communicate with Jake Leno\xe2\x80\x99s guardian/conservator, but\nKuhn testified he believed he was acting with the consent of GAPS. The hearing panel found this\ntestimony was not credible. \xe2\x80\x9c[W]e defer to the hearing panel\xe2\x80\x99s findings on the credibility of a\n16\n\n\x0cwitness, because the hearing panel has the opportunity to observe the witness\xe2\x80\x99s demeanor and hear\nthe witness testify.\xe2\x80\x9d Askew, 2010 ND 7, 9, 776 N.W.2d 816 (citing Disciplinary Board v. Johnson, 2007\nND 203, 743 N.W.2d 117).\nCounsel for the Disciplinary Board cites North Dakota Ethics Opinion No. 09-03. In that opinion,\nthe requesting attorney represented a criminal defendant who had been declared incapacitated and\nhad a guardian with full authority over legal matters. N.D. Ethics Opinion 09-03 at 1. The requesting\nattorney asked the ethics committee of the State Bar Association of North Dakota whether he was\nobligated to communicate with the guardian against his client\xe2\x80\x99s wishes, and whether he was obligated\nto communicate with the guardian regarding entry of pleas, waiver of jury trial, or whether his client\nwould testify. Id. The ethics committee cited favorably the Massachusetts Supreme Court\xe2\x80\x99s opinion\nin Guardianship of Hocker, 439 Mass. 709, 791 N.E.2d 302 (2003). Id. at 5-6. The Massachusetts\nSupreme Court stated:\nWhen a person is adjudicated incompetent ... the necessary effect ... is that the\nward is in law ... incapable of taking care of himself, as to all the world. The\npermanent guardian stands in the place of the ward in making decisions about\nthe ward\xe2\x80\x99s well-being, and the guardian is held to high standards of fidelity in\nexercising this authority for the ward\xe2\x80\x99s benefit. To be sure, an adjudication of\nincompetency ... does not obviate the need for a guardian or judge to consult a\nward\xe2\x80\x99s feelings or opinions on a matter concerning his care. It does not make the\nward any less worthy of dignity or respect in the eyes of the law than a\ncompetent person. It does not deprive the ward of fundamental liberty interests.\nBut the rights and interests of one adjudicated to be incompetent must of\nnecessity and for the benefit or advantage of the ward, often be vindicated in a\nmanner different from that of the mentally competent.\nId. (quoting Hocker, 791 N.E.2d at 307) (internal quotes and citations omitted). The ethics committee\nconcluded the requesting attorney was ethically obligated to communicate with his client\xe2\x80\x99s guardian,\nbut that it was a legal question beyond the committee\xe2\x80\x99s purview whether the guardian or the client\nhad the authority to make decisions regarding a plea, waiver of jury trial, or whether the client would\ntestify. Id. at 8.\nThe record shows Kuhn knew Jake Leno had been declared incapacitated and GAPS had been\nnamed his guardian with full authority over his legal matters. Kuhn was present at the guardianship\nhearing. He reviewed all the documents indicating Jake Leno suffered from Parkinson\xe2\x80\x99s disease and\nshort-term memory loss. He concedes it was his responsibility to communicate with Jake Leno\xe2\x80\x99s\nguardian. He failed to meet this responsibility, however. Kuhn\xe2\x80\x99s understandable desire to give his\nclient attention and respect does not overcome Jake Leno\xe2\x80\x99s incapacity to make legal decisions on his\nown behalf. Kuhn did not look to Jake Leno\xe2\x80\x99s appointed representative, as required by N.D.R. Prof.\nConduct 1.14, comment 5. Kuhn persisted in executing a will that was invalid because of Jake\nLeno\xe2\x80\x99s incapacity. Furthermore, we do not ignore the fact the second will drafted by Kuhn\nbenefitted Ronald Leno and Randy Leno, Kuhn\xe2\x80\x99s clients at the guardianship/conservatorship\nhearing. Clear and convincing evidence indicates Kuhn violated N.D.R. Prof. Conduct 1.14.\nThe hearing panel considered suspension to be the appropriate sanction under Standard 4.32 of the\nNorth Dakota Standards for Imposing Lawyer Sanctions. Standard 4.32 states, \xe2\x80\x9cSuspension is\ngenerally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a\n17\n\n\x0cclient the possible effect of that conflict, and causes injury or potential injury to a client.\xe2\x80\x9d In light of\nour determination that clear and convincing evidence does not exist to prove Kuhn violated N.D.R.\nProf. Conduct 1.7, the proper sanction is more appropriately considered under Standards 6.22 and\n8.2.\nStandard 6.22 states, \xe2\x80\x9cSuspension is generally appropriate when a lawyer knows that he or she is\nviolating a court order or rule, and causes injury or potential injury to a client or a party, or causes\ninterference or potential interference with a legal proceeding.\xe2\x80\x9d The Standards define \xe2\x80\x9cknowledge\xe2\x80\x9d as\n\xe2\x80\x9cthe conscious awareness of the nature or attendant circumstances of the conduct but without the\nconscious objective or purpose to accomplish a particular result.\xe2\x80\x9d The record indicates Kuhn was\npresent at the guardianship/conservatorship hearing, heard all the testimony, and reviewed all the\nexhibits. He knew GAPS had been declared Jake Leno\xe2\x80\x99s full guardian/conservator with authority\nover legal matters. Despite this knowledge, Kuhn drafted a will for Jake Leno without receiving\npermission or authorization from GAPS, thus violating the order establishing GAPS as Jake Leno\xe2\x80\x99s\nguardian/conservator. Suspension is the appropriate sanction under Standard 6.22.\nThe hearing panel determined suspension to be an appropriate sanction under Standard 8.2, which\nstates, \xe2\x80\x9cSuspension is generally appropriate when a lawyer has been reprimanded for the same or\nsimilar misconduct and engages in further similar acts of misconduct that cause injury or potential\ninjury to a client, the public, the legal system, or the profession.\xe2\x80\x9d Kuhn has previously consented to\ndiscipline. In 2002, Kuhn served as guardian ad litem for a ward. The hearing panel concluded Kuhn\nviolated N.D.R. Prof. Conduct 1.4(b), Communication, when he failed to advise parties to a real\nestate transaction that the ward had a guardian ad litem and evidence indicated he was incapacitated.\nThe Board also found Kuhn violated N.D.R. Prof. Conduct 1.7(a) and (c), Conflict of Interest, when\nhe provided legal advice to the parties with regard to the real estate transaction. Kuhn consented to a\nreprimand from the hearing panel for his violations. Under Standard 8.2, suspension is the\nappropriate sanction.\nIII.\nOn the basis of the record, we reject the hearing panel\xe2\x80\x99s finding that Kuhn violated N.D.R. Prof.\nConduct 1.7(a), Conflict of Interest, and accept the hearing panel\xe2\x80\x99s finding that Kuhn clearly and\nconvincingly violated N.D.R. Prof. Conduct 1.14, Client With Limited Capacity. We order Kuhn be\nsuspended from the practice of law for ninety days, effective August 1, 2010, and that he pay the\ncosts of the disciplinary proceeding in the amount of $2,654.07.\nNotes, Problems, and Questions\n1. Rule 1.14 requires an attorney to respect and protect his or her client. Even though the client\xe2\x80\x99s\ncapacity may be diminished in some way, the attorney is not supposed to treat the client like a child.\nThe rule requires a balanced approach. The attorney has to be mindful of the client\xe2\x80\x99s impairment.\nNonetheless, the attorney still has to reasonably accommodate the client\xe2\x80\x99s impairment so they can\nmaintain a normal attorney-client relationship. The diminished client is entitled to all of the rights\nand responsibilities of any other client. If the client is unable to meet those responsibilities, the\nattorney is duty-bound to seek assistance for the client.\n2. In the Kuhn case, the attorney prepared a will for a man who had been declared mentally\n18\n\n\x0cincompetent by a court without bothering to contact the man\xe2\x80\x99s guardian. Kuhn did not appear to\nbenefit from his client\xe2\x80\x99s will. Thus, his actions were probably not motivated by a desire to take\nadvantage of the client. However, he was sanctioned because his actions did not meet the\nreasonableness threshold. Might the outcome of the case have been different if the attorney had not\nknown about the guardianship?\n3. An attorney met with John Wilson, an 81 year old man, to discuss preparing a testamentary trust.\nAt the initial meeting, John gave the attorney a $1000 check for his retainer fee. When the attorney\ntook the check to John\xe2\x80\x99s bank to cash it, the cashier told him that John did not have enough money\nin his account to cover the amount of the check. The attorney\xe2\x80\x99s shock showed on his face. In\nresponse, the cashier said, \xe2\x80\x9cOver the last few months, Mr. Wilson has taken large amount of money\nout of his account. He comes in at least twice a week to make a withdrawal. Then, he goes to the\nparking lot across the street and hands the money to strangers. He hasn\xe2\x80\x99t been right since he had his\nstroke.\xe2\x80\x9d What, if anything, is the attorney ethically required to do based upon his conversation with\nthe cashier? If he is paid for his services, should he draft the will?\n1.6\n\nDuty to Third Parties\n\nA will and other testamentary documents speak at death. Thus, by the time the estate\nplanning attorney\xe2\x80\x99s error is discovered, the client who contracted to have the will prepared is dead.\nThis limits the pool of persons who can sue the attorney for malpractice. Future estate planning\nattorneys should not take any solace from that fact. Malpractice cases against estate planning\nattorneys have increased since courts have relaxed the privity requirements and permitted suits by\nthird parties.\n1.6.1\n\nThe Personal Representative\n\nEstate of Schneider v. Finmann, 933 N.E.2d 718 (N.Y. 2010)\nJONES, J.\nAt issue in this appeal is whether an attorney may be held liable for damages resulting from negligent\nrepresentation in estate tax planning that causes enhanced estate tax liability. We hold that a personal\nrepresentative of an estate may maintain a legal malpractice claim for such pecuniary losses to the\nestate.\nThe complaint alleges the following facts. Defendants represented decedent Saul Schneider from at\nleast April 2000 to his death in October 2006. In April 2000, decedent purchased a $1 million life\ninsurance policy Over several years, he transferred ownership of that property from himself to an\nentity of which he was principal owner, then to another entity of which he was principal owner and\nthen, in 2005, back to himself. At his death in October 2006, the proceeds of the insurance policy\nwere included as part of his gross taxable estate. Decedent\xe2\x80\x99s estate commenced this malpractice\naction in 2007, alleging that defendants negligently advised decedent to transfer, or failed to advise\ndecedent not to transfer, the policy which resulted in an increased estate tax liability.\nSupreme Court granted defendants\xe2\x80\x99 motion to dismiss the complaint for failure to state a cause of\naction. The Appellate Division affirmed (60 A.D.3d 892, 876 N.Y.S.2d 121 [2009]), holding that, in\n19\n\n\x0cthe absence of privity, an estate may not maintain an action for legal malpractice. We now reverse\nand reinstate plaintiff\xe2\x80\x99s claim.\nStrict privity, as applied in the context of estate planning malpractice actions, is a minority rule in the\nUnited States. In New York, a third party, without privity, cannot maintain a claim against an\nattorney in professional negligence, \xe2\x80\x9cabsent fraud, collusion, malicious acts or other special\ncircumstances\xe2\x80\x9d (Estate of Spivey, 138 A.D.2d 563, 564, 526 N.Y.S.2d 145[2d Dept.1988]). Some\nAppellate Division decisions, on which the Appellate Division here relied, have applied strict privity\nto estate planning malpractice lawsuits commenced by the estate\xe2\x80\x99s personal representative and\nbeneficiaries alike (Deeb v. Johnson, 170 A.D.2d 865, 566 N.Y.S.2d 688 [3d Dept. 1991]; Spivey, 138\nA.D.2d at 564, 526 N.Y.S.2d 145; Viscardi v. Lerner, 125 A.D.2d 662, 663-664, 510 N.Y.S.2d 183 [2d\nDept. 1986]; Rossi v. Boeher, 116 A.D.2d 636, 498 N.Y.S.2d 636, 498 N.Y.S.2d 318 [2d Dept.1986] ).\nThis rule effectively protects attorneys from legal malpractice suits by indeterminate classes of\nplaintiffs whose interests may be at odds with the interests of the client-decedent. However, it also\nleaves the estate with no recourse against an attorney who planned the estate negligently.\nWe now hold that privity, or a relationship sufficiently approaching privity, exists between the\npersonal representative of an estate and the estate planning attorney. We agree with the Texas\nSupreme Court that the estate essentially \xe2\x80\x9c \xe2\x80\x98stands in the shoes\xe2\x80\x99 of a decedent\xe2\x80\x9d and, therefore, \xe2\x80\x9chas\nthe capacity to maintain the malpractice claim on the estate\xe2\x80\x99s behalf\xe2\x80\x9d (Belt v. Oppenheimer, Blend,\nHarrison & Tate, Inc., 192 S.W.3d 780, 787 [Tex.2006]). The personal representative of an estate\nshould not be prevented from raising a negligent estate planning claim against the attorney who\ncaused harm to the estate. The attorney estate planner surely knows that minimizing the tax burden\nof the estate is one of the central tasks entrusted to the professional. Moreover, such a result\ncomports with EPTL 11-3.2(b), which generally permits the personal representative of a decedent to\nmaintain an action for \xe2\x80\x9cinjury to person or property\xe2\x80\x9d after that person\xe2\x80\x99s death.\nDespite the holding in this case, strict privity remains a bar against beneficiaries\xe2\x80\x99 and other thirdparty individuals\xe2\x80\x99 estate planning malpractice claims absent fraud or other circumstances. Relaxing\nprivity to permit third parties to commence professional negligence actions against estate planning\nattorneys would produce undesirable results\xe2\x80\x94uncertainty and limitless liability. These concerns,\nhowever, are not present in the case of an estate planning malpractice action commenced by the\nestate\xe2\x80\x99s personal representative.\nAccordingly, the order of the Appellate Division should be reversed, with costs, and defendants\xe2\x80\x99\nmotion to dismiss the complaint denied.\n1.5.2\n\nThe Intended Beneficiary\n\nSisson v. Jankowski, 809 A.2d 1265 (N.H. 2002)\nBROCK, C.J.\nThe United States District Court for the District of New Hampshire (McAuliffe, J.) has certified the\nfollowing question of law, see Sup.Ct.R. 34:\n20\n\n\x0cWhether, under New Hampshire law and the facts as pled in plaintiff\xe2\x80\x99s verified\ncomplaint, an attorney\xe2\x80\x99s negligent failure to arrange for his or her client\xe2\x80\x99s timely\nexecution of a will and/or an attorney\xe2\x80\x99s failure to provide reasonable\nprofessional advice with respect to the client\xe2\x80\x99s testamentary options (e.g., the\nability to cure a draft will\xe2\x80\x99s lack of a contingent beneficiary clause by simply\ninserting a hand-written provision), which failure proximately caused the client to\ndie intestate, gives rise to a viable common law claim against that attorney by an\nintended beneficiary of the unexecuted will.\nFor the reasons stated below, we answer the certified question in the negative.\nBecause this question arose in the context of a motion to dismiss and absent a copy of the plaintiff\xe2\x80\x99s\ncomplaint, we assume the truth of the factual allegations recited by the court in its certification\norder, and construe all inferences in the light most favorable to the plaintiff. Hungerford v. Jones, 143\nN.H. 208, 209, 722 A.2d 478 (1998).\nIn December 1998, the decedent, Dr. Warren Sisson, retained the defendants, Attorney Jankowski\nand her law firm, Wiggin & Nourie, P.A., to prepare his will and other estate planning documents.\nAccording to the plaintiff, Thomas K. Sisson, the decedent informed Attorney Jankowski that he\nwas suffering from cancer, did not want to die intestate, and, therefore, wished to prepare a will that\nwould pass his entire estate to the plaintiff, his brother. The decedent told Attorney Jankowski that\nhe was particularly interested in ensuring that none of his estate pass to his other brother, from\nwhom he was estranged. The record, however, does not reflect any request by the decedent that the\nwill be executed by a date certain.\nAttorney Jankowski prepared a will and other estate planning documents and, in mid-January 1999,\nmailed them to the decedent for his review and execution. The decedent was injured in mid-January,\nhowever, and, therefore, did not receive the documents until January 22, 1999, when a neighbor\ndelivered them to him at a nursing home. Three days later, the plaintiff contacted Attorney\nJankowski to tell her that the decedent wanted to finalize his estate planning documents quickly\nbecause of his deteriorating condition.\nOn February 1, 1999, Attorney Jankowski and two other law firm employees visited the decedent in\nthe nursing home to witness his execution of the estate planning documents. The decedent executed\nall of the documents except his will. After Attorney Jankowski asked him whether the will should\ninclude provisions for a contingent beneficiary, the decedent expressed his desire to insert such a\nclause, thereby providing that his estate would pass to a charity in the event the plaintiff predeceased\nhim.\nAccording to the plaintiff, the decedent\xe2\x80\x99s testamentary intent was clear as of the end of the February\n1, 1999 meeting: the unexecuted will accurately expressed his intent to pass his entire estate to the\nplaintiff. Nevertheless, rather than modifying the will immediately to include a hand-written\ncontingent beneficiary clause, modifying it at her office and returning later that day for the\ndecedent\xe2\x80\x99s signature, or advising the decedent to execute the will as drafted to avoid the risk of dying\nintestate and later drafting a codicil, Attorney Jankowski left without obtaining the decedent\xe2\x80\x99s\nsignature to the will.\nThree days later, Attorney Jankowski returned with the revised will. The decedent did not execute it,\n21\n\n\x0chowever, because Attorney Jankowski did not believe he was competent to do so. She left without\nsecuring his signature and told him to contact her when he was ready to sign the will.\nThe plaintiff twice spoke with a Wiggin & Nourie attorney \xe2\x80\x9cto discuss Attorney Jankowski\xe2\x80\x99s inaction\nregarding the will.\xe2\x80\x9d The attorney told him that he had spoken to other firm members about the\nsituation. Nevertheless, after February 4, 1999, Attorney Jankowski made no attempt to determine\nwhether the decedent regained sufficient testamentary capacity to execute his will.\nThe decedent died intestate on February 16, 1999. His estate did not pass entirely to the plaintiff as\nhe had intended, but instead was divided among the plaintiff, the decedent\xe2\x80\x99s estranged brother, and\nthe children of a third (deceased) brother. The plaintiff brought legal malpractice claims against the\ndefendants, alleging that they owed him a duty of care because he was the intended beneficiary of\ntheir relationship with the decedent.\nFor the purposes of this certified question, there is no dispute as to the decedent\xe2\x80\x99s testamentary\nintent: he wanted to avoid dying intestate and to have his entire estate pass to the plaintiff. Nor does\nthe plaintiff claim that the defendants frustrated the decedent\xe2\x80\x99s intent by negligently preparing his\nwill. Rather, the plaintiff asserts that the defendants were negligent because they failed to have the\ndecedent execute his will promptly and to advise him on February 1 of the risk of dying intestate if\nhe did not execute the draft presented at that meeting.\nThe narrow question before us is whether the defendants owed the plaintiff a duty of care to ensure\nthat the decedent executed his will promptly. Whether a duty exists is a question of law. Hungerford,\n143 N.H. at 211, 722 A.2d 478. A duty generally arises out of a relationship between the parties. See\nMacMillan v. Scheffy, 147 N.H. 362, 364, 787 A.2d 867 (2001). While a contract may supply the\nrelationship, ordinarily the scope of the duty is limited to those in privity of contract with one\nanother. Id. We have, in limited circumstances, recognized exceptions to the privity requirement\nwhere necessary to protect against reasonably foreseeable harm. See Hungerford, 143 N.H. at 211, 722\nA.2d 478. \xe2\x80\x9c[N]ot every risk of harm that might be foreseen gives rise to a duty,\xe2\x80\x9d however. Id.\n(quotation and brackets omitted). \xe2\x80\x9c[A] duty arises if the likelihood and magnitude of the risk\nperceived is such that the conduct is unreasonably dangerous.\xe2\x80\x9d Id. (quotation and brackets omitted).\n\xe2\x80\x9cWhen determining whether a duty is owed, we examine the societal interest involved, the severity\nof the risk, the likelihood of the occurrence, the relationship between the parties, and the burden\nupon the defendant.\xe2\x80\x9d Id. Ultimately, whether to impose a duty of care \xe2\x80\x9crests on a judicial\ndetermination that the social importance of protecting the plaintiff\xe2\x80\x99s interest outweighs the\nimportance of immunizing the defendant from extended liability.\xe2\x80\x9d Walls v. Oxford Management Co.,\n137 N.H. 653, 657, 633 A.2d 103 (1993).\nIn Simpson v. Calivas, 139 N.H. 1, 4, 650 A.2d 318 (1994), we recognized an exception to the privity\nrequirement with respect to a will beneficiary and held that an attorney who drafts a testator\xe2\x80\x99s will\nowes a duty to the beneficiaries to draft the will non-negligently. In Simpson, a testator\xe2\x80\x99s son sued the\nattorney who drafted his father\xe2\x80\x99s will, alleging that the will failed to incorporate his father\xe2\x80\x99s actual\nintent. Id. at 3, 650 A.2d 318. The will left all real estate to the plaintiff, except for a life estate in\n\xe2\x80\x9cour homestead,\xe2\x80\x9d which was left to the plaintiff\xe2\x80\x99s stepmother. Id. The probate litigation concerned\nwhether \xe2\x80\x9cour homestead\xe2\x80\x9d referred to all of the decedent\xe2\x80\x99s real property, including a house, over one\nhundred acres of land and buildings used in the family business, or only to the house, and perhaps\nlimited surrounding acreage. Id. The plaintiff argued that the decedent intended to leave him the\n22\n\n\x0cbuildings used in the family business and the bulk of the surrounding land in fee simple. Id. at 4, 650\nA.2d 318. The plaintiff lost the will construction action, and then brought a malpractice action\nagainst the drafting attorney, arguing that the decedent\xe2\x80\x99s will did not accurately reflect his intent. Id.\nat 3, 650 A.2d 318.\nWe held that the son could maintain a contract action against the attorney, as a third-party\nbeneficiary of the contract between the attorney and his father, and a tort action, under a negligence\ntheory. Id. at 7, 650 A.2d 318. With respect to the negligence claim, we concluded that, \xe2\x80\x9calthough\nthere is no privity between a drafting attorney and an intended beneficiary, the obvious foreseeability\nof injury to the beneficiary demands an exception to the privity rule.\xe2\x80\x9d Id. at 5-6, 650 A.2d 318.\nSimpson is consistent with the prevailing rule that a will beneficiary may bring a negligence action\nagainst an attorney who failed to draft the will in conformity with the testator\xe2\x80\x99s wishes. (citations\nomitted)\nSimpson is not dispositive of the certified question, however. The duty in Simpson was to draft the will\nnon-negligently, while the alleged duty here is to ensure that the will is executed promptly. Courts in\nseveral jurisdictions have declined to impose a duty of care where the alleged negligence concerns\nthe failure to have the will executed promptly. (citations omitted) The majority of courts confronting\nthis issue have concluded that imposing liability to prospective beneficiaries under these\ncircumstances would interfere with an attorney\xe2\x80\x99s obligation of undivided loyalty to his or her client,\nthe testator or testatrix.\nIn Krawczyk v. Stingle, 208 Conn. 239, 543 A.2d 733 (1988), for instance, the decedent had met with\nhis attorney approximately ten days before he died and informed her that he was soon to have open\nheart surgery and wanted to arrange for the disposition of his assets without going through probate.\nAccordingly, he directed the attorney to prepare two trust documents for his execution. Id. at 734.\nCompletion of the trust documents was delayed, and by the time they were ready for execution, the\ndecedent was too ill to see his attorney. He died without signing them. Id.\nThe Connecticut Supreme Court concluded that imposing liability to third parties for negligent delay\nin executing estate planning documents would contravene a lawyer\xe2\x80\x99s duty of undivided loyalty to the\nclient. Id. at 736. As the court explained:\nImposition of liability would create an incentive for an attorney to exert pressure\non a client to complete and execute estate planning documents summarily. Fear\nof liability to potential third party beneficiaries would contravene the attorney\xe2\x80\x99s\nprimary responsibility to ensure that the proposed estate plan effectuates the\nclient\xe2\x80\x99s wishes and that the client understands the available options and the legal\nand practical implications of whatever course of action is ultimately chosen.\nThese potential conflicts of interest are especially significant in the context of the\nfinal disposition of a client\xe2\x80\x99s estate, where the testator\xe2\x80\x99s testamentary capacity and\nthe absence of undue influence are often central issues.\nId.\nThe Massachusetts Supreme Judicial Court has similarly reasoned that:\n23\n\n\x0c[I]n preparing a will[,] attorneys can have only one client to whom they owe a\nduty of undivided loyalty. A client who engages an attorney to prepare a will may\nseem set on a particular plan for the distribution of her estate.... It is not\nuncommon, however, for a client to have a change of heart after reviewing a\ndraft will.... If a duty arose as to every prospective beneficiary mentioned by the\nclient, the attorney-client relationship would become unduly burdened. Attorneys\ncould find themselves in a quandary whenever the client had a change of mind,\nand the results would hasten to absurdity. The nature of the attorney-client\nrelationship that arises from the drafting of a will necessitates against a duty\narising in favor of prospective beneficiaries.\nMiller, 725 N.E.2d at 550-51 (quotation, ellipses and brackets omitted).\nWe have recently reaffirmed the importance of an attorney\xe2\x80\x99s undivided loyalty to a client. See\nMacMillian, 147 N.H. at 365, 787 A.2d 867. In MacMillan, we declined to extend Simpson to permit\nthe buyers in a real estate transaction to sue the sellers\xe2\x80\x99 attorney who prepared a deed, which failed\nto include a restrictive covenant. We ruled that there was no evidence that the primary purpose of\nemploying the attorney to draft the deed was to benefit or influence the buyers. Id. Accordingly, we\nheld that the buyers were not the intended beneficiaries of the attorney\xe2\x80\x99s services. Id. Moreover, we\nheld that it was imprudent to impose liability upon the attorney under these circumstances because\ndoing so would \xe2\x80\x9cinterfere with the undivided loyalty which the attorney owes his client and would\ndetract from achieving the most advantageous position for his client.\xe2\x80\x9d Id. (quotation omitted).\nBoth parties cite compelling policy considerations to support their arguments. The plaintiff asserts\nthat there is a strong public interest in ensuring that testators dispose of their property by will and\nthat recognizing a duty of an attorney \xe2\x80\x9cto arrange for the timely execution of a will\xe2\x80\x9d will promote\nthis public interest. He further argues that \xe2\x80\x9c[t]he risk that an intended beneficiary will be deprived of\na substantial legacy due to delay in execution of testamentary documents\xe2\x80\x9d requires the court to\nrecognize the duty he espouses. The defendants counter that recognizing a duty to third parties for\nthe failure to arrange for the timely execution of a will potentially would undermine the attorney\xe2\x80\x99s\nethical duty of undivided loyalty to the client.\nAfter weighing the policy considerations the parties identify, we conclude that the potential for\nconflict between the interests of a prospective beneficiary and a testator militates against recognizing\na duty of care. \xe2\x80\x9cIt is the potential for conflict that is determinative, not the existence of an actual\nconflict.\xe2\x80\x9d Miller, 725 N.E.2d at 550. Whereas a testator and the beneficiary of a will have a mutual\ninterest in ensuring that an attorney drafts the will non-negligently, a prospective beneficiary may be\ninterested in the will\xe2\x80\x99s prompt execution, while the testator or testatrix may be interested in having\nsufficient time to consider and understand his or her estate planning options. As the Massachusetts\nSupreme Judicial Court recognized:\nConfronting a last will and testament can produce complex psychological\ndemands on a client that may require considerable periods of reflection. An\nattorney frequently prepares multiple drafts of a will before the client is\nreconciled to the result. The most simple distributive provisions may be the most\ndifficult for the client to accept.\nId. at 551.\n24\n\n\x0cCreating a duty, even under the unfortunate circumstances of this case, could compromise the\nattorney\xe2\x80\x99s duty of undivided loyalty to the client and impose an untenable burden upon the attorneyclient relationship. To avoid potential liability, attorneys might be forced to pressure their clients to\nexecute their wills summarily, without sufficiently reflecting upon their estate planning options.\nOn balance, we conclude that the risk of interfering with the attorney\xe2\x80\x99s duty of undivided loyalty to\nthe client exceeds the risk of harm to the prospective beneficiary. For these reasons, we join the\nmajority of courts that have considered this issue and hold that an attorney does not owe a duty of\ncare to a prospective will beneficiary to have the will executed promptly. Accordingly, we answer the\ncertified question in the negative.\nRemanded.\nEthics Exercise One\nAttorney Oscar Walker represented Melvin and Gloria Patterson in a real estate transaction. During\nthe course of that representation, Oscar and Gloria had an affair. A few years later, while\nintoxicated, Gloria told Oscar that her daughter, Isabella, was a product of their affair.\nA few years later, Oscar ran into Melvin in the parking lot of their health club. At that time, Melvin\nasked Oscar if he was legally required to leave his property to his children. In response, Oscar told\nMelvin that children did not have a legal right to inherit. A few years later, Gloria filed for divorce\nand retained Oscar to represent her in the matter. At that time, Gloria made Oscar promise not to\nreveal Isabella\'s true paternity.\nAfter the divorce was final, Melvin hired an attorney to establish a testamentary trust. Under the\nterms of the trust, Melvin left one-third of his property to Isabella, and the other two-thirds to his\nson, Damon, who was an attorney. When Melvin passed away, Isabella retained Walker to contest\nMelvin\'s will because of undue influence on the part of Damon.\nEthics Exercise Two\nAfter Curtis Jackson\'s wife Beatrice died, his only living heirs were his niece Ellen Blackman, and his\nnephews Thomas Jackson, Michael Levinson and Justin Powell.\nIn 2010, Curtis suffered a mild heart attack a few months after his 70th birthday. Ellen urged her\nuncle to get one of his attorneys to prepare his will so he could have his affairs in order. However,\nCurtis told her he was afraid to think about dying. Finally, Curtis told Ellen that he was ready to get\nhis affairs in order. Consequently, Ellen set up an appointment for Curtis to meet with her\nattorney. At the last minute, Curtis changed his mind and did not attend the meeting. This process\nwas repeated on at least two occasions.\nIn 2012, Curtis told Ellen that he was ready to do some estate planning. He asked her to assist him\nwith the matter. Therefore, Ellen paid her attorney, Paul Johnson, to prepare a will for Curtis. She\n25\n\n\x0cpaid for Johnson\'s services because she wanted the instruments prepared before her uncle again\nchanged his mind. At the time he prepared the will, Johnson had been Ellen\xe2\x80\x99s attorney for ten years.\nWhen Curtis passed away in 2015, he had an estate worth over 50 million dollars. Curtis\xe2\x80\x99 will\nprovided for the following disposition of his estate: half of the estate was left to Ellen, and the other\nhalf of the estate was to be divided between Curtis\xe2\x80\x99 three nephews. The nephews want to set aside\nthe probate of the will on grounds that, at the time Johnson prepared the will, he was Ellen\xe2\x80\x99s\nattorney.\nPlease address the ethical issues that arise as a consequence of the above scenarios.\n\n26\n\n\x0cChapter Two: Intestacy System (Basic Overview)\n2.1\n\nIntroduction\n\nOn April 21, 2016, superstar Prince Roger Nelson died at the age of 57. A few days later, the\nmedia reported that he had died without a will. Prince, an unmarried man, was survived by his\nsiblings. People were shocked that Prince died intestate because he left a multiple million dollar\nestate. The intestacy system controls the distribution of the part of the decedent\xe2\x80\x99s estate that is not\ndisposed of by will. In addition, the system comes into play when the probate court completely or\npartially invalidates the testator\xe2\x80\x99s will. Intestacy statutes may also be germane in cases where courts\nhave to define terms that are included in validly executed wills and trusts. The main objective of this\nchapter is to examine the system that is in place to deal with the property of persons who die\nwithout leaving a plan for the disposition of their estates. Like Prince, a significant number of people\nin the United States die intestate. Thus, it is critical for students to have a good understanding of the\nlaws governing the intestacy system. The intestacy statutes of all fifty states and the District of\nColumbia discuss the amount of the decedent\xe2\x80\x99s estate that the surviving spouse has a right to\nreceive. The options available to the surviving spouse will be discussed in the next chapter. This\nchapter analyzes the disposition of the portion of the decedent\xe2\x80\x99s estate that is left after the surviving\nspouse has received his or her share. The first part of the chapter deals with distributions to the\ndecedent\xe2\x80\x99s descendants. The second part explains the interests ancestors, collaterals and others may\nhave in the decedent\xe2\x80\x99s estate. The most effective way to teach the material contained in this chapter\nis to use the problem-solving method. Therefore, the chapter contains mostly problems.\n2.2\n\nDistribution Under the Intestacy System\n\nWhen the legislature created the intestacy system, the primary goal was to establish a system\nthat would enable the probate court to carry out the decedent\xe2\x80\x99s presumed intent. The presumption is\nthat, after the surviving spouse has received a portion of the estate, a reasonable person would want\nthe remainder of his or her assets divided among his or her children. Thus, the probate system\nfavors legal children.1 Chapters Four, Five and Six explains the definition of a \xe2\x80\x9clegal child\xe2\x80\x9d for\nintestacy purposes.\nAfter the spouse receives his or her elective share, the decedent\xe2\x80\x99s children split his or her\nproperty. If the decedent is a person who never conceived or adopted children, the decedent\xe2\x80\x99s estate\nis divided between the decedent\xe2\x80\x99s surviving parent(s). If the decedent is not survived by parents, his\nor her estate is distributed to his or her siblings if any survive the decedent. The estate of a person\nwho dies with no surviving children, parents or siblings goes to that person\xe2\x80\x99s collateral relatives. If a\nperson\xe2\x80\x99s bloodline has ended, his or her property escheats to the state. I explain the distribution by\ntelling my students to first look down for children, then look up for parents, and finally to look out\nfor siblings.\n\nFor thorough discussion of the inheritance rights of children, please see Browne Lewis, The Inheritance Rights of\nChildren: Cases and Materials (Carolina Academic Press, 2010).\n1\n\n27\n\n\x0c2.2.1\n\nUniform Probate Code \xc2\xa7 2-103. Share of Heirs other than Surviving Spouse\n\nAny part of the intestate estate not passing to the decedent\xe2\x80\x99s surviving spouse under Section 2-102,\nor the entire intestate estate if there is no surviving spouse, passes in the following order to the\nindividuals designated below who survive the decedent:\n(1)\n\nto the decedent\xe2\x80\x99s descendants by representation;\n\n(2)\nif there is no surviving descendant, to the decedent\xe2\x80\x99s parents equally if both survive, or to\nthe surviving parent;\n(3)\nif there is no surviving descendant or parent, to the descendants of the decedent\xe2\x80\x99s parents or\neither of them by representation;\n(4)\nif there is no surviving descendant, parent, or descendant of a parent, but the decedent is\nsurvived by one or more grandparents or descendants of grandparents, half of the estate passes to\nthe decedent\xe2\x80\x99s paternal grandparents equally if both survive, or to the surviving paternal\ngrandparent, or to the descendants of the decedent\xe2\x80\x99s paternal grandparents or either of them if both\nare deceased, the descendants taking by representation; and the other half passes to the decedent\xe2\x80\x99s\nmaternal relatives in the same manner; but if there is no surviving grandparent or descendant of a\ngrandparent on either the paternal or the maternal side, the entire estates passes to the decedent\xe2\x80\x99s\nrelatives on the other side in the same manner as the half.\n2.3\n\nDescendants\n\nThe term \xe2\x80\x9cdescendant\xe2\x80\x9d is broader than the word \xe2\x80\x9cchild\xe2\x80\x9d. For intestacy purposes, it includes\nall persons who proceed from the body of the decedent. When a person dies intestate, the estate\ngoes to his or her lineal descendants. Parents and other ancestors do not have the right to inherit\nunless the person does not have any lineal descendants (child, grandchildren, great grandchildren\netc.). Let\xe2\x80\x99s look at some illustrations.\n2.3.1\n\nIllustration One\nLaToya, a widow, died intestate leaving behind four children, Greta, Malia, Juanita, and\nSasha. LaToya\xe2\x80\x99s estate will be split into four portions because she had four surviving\nchildren and no surviving spouse.\n\nIllustration One shows that it is not complicated to determine the manner in which a\ndecedent\xe2\x80\x99s property should be divided under the intestacy system. Nonetheless, the formula for\ndistributing an intestate decedent\xe2\x80\x99s estate can become complex if one or more of the decedent\xe2\x80\x99s\nchildren does not survive the decedent. Under the intestacy system, the decedent\xe2\x80\x99s child(ren)\xe2\x80\x99s\ndescendants can inherit his or her estate by representation.2 This means that the issue of the\ndecedent, including his or her grandchildren, great grandchildren etc., represents his or her deceased\n\n2\n\nThis term will be explained later in the chapter.\n\n28\n\n\x0cchildren for purposes of the distribution of his or her estate. The next illustration will help the\nstudent visualize this principle.\n2.3.2\n\nIllustration Two\nDiane died in 1978. She was survived by her husband Clyde and their eight children, Corey,\nGigi, Christopher, Elizabeth, Stephanie, Marcia, Timothy, and Oscar. In 1986, Marcia died\nof a massive heart attack while riding a roller coaster. Marcia was survived by her husband,\nJarvis, and her three daughters, Wanda, Ruth and Tracie. When Clyde died in 2000, he was\nsurvived by seven of his children, Marcia\xe2\x80\x99s husband and Marcia\xe2\x80\x99s three daughters.\nClyde\xe2\x80\x99s estate would be divided into eight portions because that is the number of his original\nchildren. Each of Clyde\xe2\x80\x99s surviving children would receive a one-eighth share of his estate.\nThe share of the estate that would have gone to Marcia, the child who predeceased Clyde,\nwould be divided between her three daughters. As a result, Clyde\xe2\x80\x99s estate would be\ndistributed as follows: Corey (1/8), Gigi (1/8), Christopher (1/8), Elizabeth (1/8), Stephanie\n(1/8), Timothy (1/8), Oscar (1/8), Wanda (1/24), Ruth (1/24) and Tracie (1/24). Since most\nintestacy statutes exclude sons-in-law and daughters-in-law, Jarvis, Marcia\xe2\x80\x99s husband, would\nnot be entitled to receive any part of Clyde\xe2\x80\x99s estate.\n\nIn all jurisdictions, the intestacy system allows descendants of the decedent to inherit by\nrepresentation. Consequently, Marcia\xe2\x80\x99s daughters would have the right to receive her share of\nClyde\xe2\x80\x99s estate. The definition of \xe2\x80\x9ctaking by representation\xe2\x80\x9d varies from state to state. The shares that\nthe descendants receive depend upon which one of the three commonly used methods of\nrepresentation that is applied. The main difference in each method is where the division into portion\noccurs. The decedent\xe2\x80\x99s estate may be divided at the generational level immediately below the\ndecedent or the generational level where a live descendant exists. This will be explained in more\ndetail later in this chapter.\n2.3.3\n\nTwo Important Rules to Remember\n\nThe three systems of representation will be discussed in the next section. In order to fully\ncomprehend how the decedent\xe2\x80\x99s estate will be divided, it is important to know two rules.\nRule One: The descendants whose parents are living do not receive a share of the decedent\xe2\x80\x99s estate.\nExample:\nMiguel, a widower, had three children, Juan, Carlos and Isabella. Unfortunately, Miguel lost his son\nCarlos in a car accident. Carlos was survived by two children, Manuel and Alejandro. Juan has a son\nnamed Mateo. Isabella had two children, Elena and Joaquin. Miguel died survived by Juan, Isabella,\nManuel, Alejandro, Mateo, Elena and Joaquin.\nExplanation:\n\n29\n\n\x0cCarlos\xe2\x80\x99 children take his share by representation of their dead father. Miguel\xe2\x80\x99s estate is distributed as\nfollows: Juan (1/3), Isabella (1/3), Manuel (1/6), and Alejandro (1/6). Manuel and Alejandro split\ntheir father\xe2\x80\x99s share of their grandfather\xe2\x80\x99s estate. Even though they are Miguel\xe2\x80\x99s grandchildren,\nMateo, Elena and Joaquin are not entitled to a portion of Miguel\xe2\x80\x99s estate because their parents\nsurvived Miguel.\nRule Two: Once a blood line dies out, it is ignored in the division of the decedent\xe2\x80\x99s estate.\nExample:\nRebecca, a widow, had three children, Noah, Jacob and Ava. Unfortunately, Jacob was killed in an\nairplane crash. Jacob did not have any children. Noah had two children, Joshua and Eli. Ava had\nthree children, Daniel, Caleb and Hannah. When Rebecca died, she was survived by Noah, Ava,\nJoshua, Eli, Daniel, Caleb and Hannah.\nExplanation:\nRebecca\xe2\x80\x99s estate will be divided into three parts to represent her three original children. Each of\nRebecca\xe2\x80\x99s children is entitled to receive a third of her estate. Since Jacob died without surviving\ndescendants, his share of Rebecca\xe2\x80\x99s estate will be divided between his siblings, Noah and Ava. Noah\nwill receive his one third of his mother\xe2\x80\x99s estate plus one sixth of Jacob\xe2\x80\x99s interest in the estate. Thus,\nNoah\xe2\x80\x99s interest in Rebecca\xe2\x80\x99s estate will total one-half. Like Noah, Ava will end up receiving one-half\nof Rebecca\xe2\x80\x99s estate. To avoid the complex computations, it is easier to ignore Jacob\xe2\x80\x99s interest and to\ndivide Rebecca\xe2\x80\x99s estate into two shares. You will get the same result using either method.\n2.4\n\nThe Meaning of Representation\n\nIn this chapter, we have mentioned \xe2\x80\x9ctaking by representation\xe2\x80\x9d several times. It is now time\nto explain exactly what that means. The definition of \xe2\x80\x9crepresentation\xe2\x80\x9d is relevant even when a\nperson dies with a validly executed will or a testamentary trust. This is the case because those\ntestamentary documents often refer to property being distributed by \xe2\x80\x9crepresentation\xe2\x80\x9d. When\nprobating the estate, the court will often use the definition of \xe2\x80\x9crepresentation\xe2\x80\x9d that is contained in\nthe intestacy statute.\n2.4.1\n\nEnglish per stirpes\n\nThis method is also called strict per stirpes because it requires a strict application of the rule.\nThe decedent\xe2\x80\x99s estate is divided at the generational level directly under the decedent irrespective of\nwhether or not there is a surviving descendant at that level. Under this system, the estate must be\ndivided into as many parts as there are living children of the decedent and deceased children who\nhave descendants living. Each child that dies before the decedent is represented by his or her\nsurviving children. The children are injected into their parent\xe2\x80\x99s place starting at the first generation\nbelow the decedent.\nExample:\n30\n\n\x0cLauren, a widow, had two children, Jada and Cornell. Unfortunately, Lauren lost her son, Cornell, in\na boating accident. Cornell was survived by one child, Madison. Sadly, a year later, Jada was killed\nwhen her parachute failed to open during an air show. Jada was survived by two children, Aaliyah\nand Destiny. Lauren died intestate; she was survived by Madison, Aaliyah and Destiny.\nExplanation:\nUnder this method, Lauren\xe2\x80\x99s estate is divided into two shares at the level of her children. It does not\nmatter that both of Lauren\xe2\x80\x99s children predeceased her. Madison would receive Cornell\xe2\x80\x99s one-half\nshare of the estate. Aaliyah and Destiny would split Jada\xe2\x80\x99s one-half share of the estate. Although\nthey are all her grandchildren, Madison would receive a larger share of the estate. Do you think this\nis what Grandmother Lauren would have wanted?\n2.4.2\n\nModern per stirpes\n\nAnother name for this method is per capita with representation. Under this approach, if any\nchildren survive the decedent, the decedent\xe2\x80\x99s estate would be distributed in the same way that it\nwould be under the English per stirpes method. If this scheme is used, the outcome would be\ndifferent if all of the decedent\xe2\x80\x99s children predeceased him or her. If the decedent is not survived by\nchildren, the estate would be divided equally between the survivors of the first generation in which\nthere are living descendants. The partition of the decedent\xe2\x80\x99s estate transpires at the generational level\nclosest to the decedent where there is at least one surviving descendant. The deceased descendants\nat that generation are represented by their descendants.\nExample:\nMonica, a widower, had four children, Jennifer, Ross, Camille, and Sandra. Jennifer had two\nchildren, Zachery and Molly. Ross had one child, Deanna. Camille had three children, Betsy, Irene,\nand Glynn. Sandra had one child, LaNitra. All of Monica\xe2\x80\x99s children predeceased her, and she was\nsurvived by Zachery, Molly, Deanna, Betsy, Irene, Glynn, and LaNitra.\nExplanation:\nMonica\xe2\x80\x99s estate would be divided at the level where she has at least one survivor. Since all of\nMonica\xe2\x80\x99s children predeceased her, her estate would be split at the generation of her grandchildren.\nEach grandchild would be treated equally. Thus, Zachery, Molly, Deanna, Betsy, Irene, Glynn, and\nLaNitra would each receive a one-seventh share of the estate.\nIf Monica\xe2\x80\x99s estate was distributed in a jurisdiction that had adopted the English per stirpes approach,\nthe result would be different. The estate would be divided at the generation closest to Monica\nregardless of whether or not she had a surviving child. Thus, Monica\xe2\x80\x99s estate would be split at her\nchildren\xe2\x80\x99s generation. Monica had four children; therefore, her estate would be divided into four\nshares. The resulting distribution of her estate would be as follows: Zachery and Molly would split\nJennifer\xe2\x80\x99s one-fourth; Deanna would receive Ross\xe2\x80\x99 one-fourth; Betsy, Irene, and Glynn would split\nCamille\xe2\x80\x99s one-fourth; and LaNitra would receive Sandra\xe2\x80\x99s one-fourth.\n\n31\n\n\x0cNotes and Questions\n1. As the above example shows, the Modern per stirpes system treats all of Monica\xe2\x80\x99s grandchildren\nequally. If the English per stirpes approach is used, some of Monica\xe2\x80\x99s grandchildren will receive\nlarger shares than the others. Which distribution do you think Monica would have chosen? What\nmight be the justification for the Modern per stirpes approach?\n2. The Modern per stirpes systems has been adopted by almost half of the jurisdictions in the United\nStates. From a public policy standpoint, which approach do you think is better?\n3. The intestacy system is meant to carry out the decedent\xe2\x80\x99s presumed intent. Which approach do\nyou think enables the probate court to achieve that objective?\n4. The examination of the manner in which the intestacy system treats descendants has been kept\ngeneral for the sake of simplicity. It may be more complex to apply the statute of a particular state.\nFor purposes of this course, the students only need to comprehend the basic underlying principles.\n2.4.3\n\nA Case Illustration\n\nThe debate about the meaning of \xe2\x80\x9crepresentation\xe2\x80\x9d continues. The purpose of the following\ncase is to demonstrate the difference between the two systems of distribution. The court discusses\nthree assignments of error. However, only one is relevant to the discussion of intestate distribution.\nThus, the case has been edited accordingly.\n\nIn re Estate of Evans, 827 N.W.2d 313 (Neb. App. 2013)\nSIEVERS, Judge.\nFACTUAL BACKGROUND\nThe decedent, Donald J. Evans, died intestate on October 2, 2011. At the time of his death, Donald\nwas domiciled in Wallace, Nebraska. Donald was not married at the time of his death, and he had no\nsurviving children or issue. Donald\xe2\x80\x99s parents were deceased at the time of his death. Donald had\nthree brothers, Robert Evans, Stewart Evans, and Frederick Evans, but all three brothers\npredeceased Donald. Of the brothers, Robert did not have any children. Stewart had three children:\nSusan Evans Olson (Susan), Anna Evans, and Mary C. Evans. Anna predeceased Donald and did\nnot have any children. Frederick had two children: Ted L. Evans and John Evans. John predeceased\nDonald and did not have any children. Thus, Donald was survived by nieces Susan and Mary (via\nStewart) and nephew Ted (via Frederick).\nPROCEDURAL BACKGROUND\nOn March 8, 2012, Ted filed a petition for a formal adjudication of intestacy, a determination of\nheirs, and an appointment of a personal representative of Donald\xe2\x80\x99s estate. Ted alleged that a\nstatement of informal probate was entered on November 1, 2011, appointing Ted and Mary as\ncopersonal representatives of the estate. Although the appointment does not appear in our record,\ntheir prior appointment as copersonal representatives is an undisputed fact. In his petition, Ted\n32\n\n\x0cnominated himself as the sole personal representative of the estate and alleged that he had priority\nstatus as an heir entitled to at least 50 percent of the estate as a resident of Nebraska, whereas Susan\nand Mary were Colorado residents.\nOn March 23, 2012, Mary filed an objection and responsive pleading, alleging that Ted was not\nentitled to 50 percent of the estate. Mary asked that the court continue its appointment of\ncopersonal representatives, as entered on November 1, 2011, and that it make a determination as to\nthe share to which each heir is entitled. Mary did not petition for Ted\xe2\x80\x99s removal as copersonal\nrepresentative.\nA hearing was held on April 16, 2012, on Ted\xe2\x80\x99s petition for formal adjudication. Ted testified on\ndirect examination that he believed Donald died without a will. However, on cross-examination, Ted\ntestified that Donald set up a will in 2010 with a bank, but that Donald tore up the will in September\n2011, a month prior to his death. Ted testified that he, along with the bank officer who wrote the\nwill, was present when Donald tore up his will. Ted testified that Donald also had the bank draw up\na trust, but that he tore the trust document up at the same time he tore up his will. Exhibits 2 and 3,\ncopies of Donald\xe2\x80\x99s destroyed will and trust, were received into evidence, but are not part of the\nrequested bill of exceptions. Ted testified that exhibits 2 and 3 were copies of the documents that\nDonald had torn up. He also agreed that under the will and trust documents that were torn up, the\nestate was to be divided one-third each to Susan, Mary, and Ted. There is no claim in this appeal\nthat either of such documents is effective.\nTed testified that as copersonal representative, he sent Mary various requests to sign checks to\nreimburse Ted for various expenses, including expenses incurred prior to Donald\xe2\x80\x99s death and\nexpenses for Donald\xe2\x80\x99s funeral. Some of the expenses incurred prior to Donald\xe2\x80\x99s death included\nhotel rooms for Ted and his wife to be close to Donald, such as when Donald was in the hospital.\nTed testified that he asked Mary to sign off on a total of $5,600 to $5,700 worth of reimbursements\nto him. While Ted did not testify that Mary refused the requests for reimbursements, Mary later\ntestified that she did in fact refuse such requests. Ted asked the court to appoint him to be the sole\npersonal representative of Donald\xe2\x80\x99s estate.\nMary testified that a preliminary inventory of Donald\xe2\x80\x99s estate showed a value of $2.9 to $3 million.\nMary testified that Ted sent bills to her and wanted her to sign off on checks so that he could be\npaid for various claims that he had filed. Mary testified that she was reluctant to sign because some\nof the bills seemed to be duplicative or did not pertain to estate business. Mary also testified that she\ndid not sign the estate inventory sent to her by Ted\xe2\x80\x99s attorney because she felt there were some\nomissions and because she and her attorney were trying to investigate. Mary testified that she had\nalso not yet signed the paperwork to transfer certain stock to the estate\xe2\x80\x94she stated that she had not\nrefused to sign the paperwork, but, rather, that she had not signed it yet. She also testified that she\nand Ted each proposed a different bank for the estate account. Mary testified that she had no\npersonal communication with Ted and that they each have an attorney.\nMary testified that she has been an officer-director and coowner of an investment advisory firm in\nDenver, Colorado, for the past 20 years. She testified that her firm manages \xe2\x80\x9chigh, aggressive\ngrowth portfolios\xe2\x80\x9d and that they \xe2\x80\x9cinvest them in securities for high net growth and ultra high net\nworth clients.\xe2\x80\x9d Mary testified that she holds a securities license as a stock-broker or advisor. Mary\ntestified that Ted lacks the securities experience needed for an estate as large as Donald\xe2\x80\x99s. While\nMary initially testified that she would like to continue as copersonal representative of the estate, she\n33\n\n\x0clater verbally asked during her testimony that the court appoint her to be the sole personal\nrepresentative or, in the alternative, that the court appoint a neutral third party. Finally, Mary\ntestified that she objects to Ted\xe2\x80\x99s claim that he is entitled to 50 percent of the estate. She thinks that\nthe estate should be divided one-third each to Susan, Mary, and Ted.\nIn its journal entry and order filed on May 31, 2012, the county court found that Donald died\nintestate on October 2, 2011. The court found that prior to his death, Donald executed a last will\nand testament and the \xe2\x80\x9cDonald J. Evans Revocable Trust\xe2\x80\x9d (exhibits 2 and 3), but that the\ndocuments were allegedly destroyed by Donald. Therefore, the court determined that the estate\nwould be divided in accordance with the provisions of intestate succession as set out in Neb. Rev.\nStat. \xc2\xa7 30-2303 (Reissue 2008). The court stated that in accordance with \xc2\xa7 30-2303(5) relative to\nintestate succession, \xe2\x80\x9c \xe2\x80\x98if there is no surviving issue, parent, issue of a parent, grandparent or issue of\na grandparent, the entire estate passes to the next of kin in equal degree.\xe2\x80\x99 \xe2\x80\x9d The court determined that\nSusan, Mary, and Ted were Donald\xe2\x80\x99s \xe2\x80\x9c \xe2\x80\x98next of kin\xe2\x80\x99 \xe2\x80\x9d and that each heir stands in equal degree of\nkinship to the other. The court specifically found and ordered that under \xc2\xa7 30-2303, Susan, Mary,\nand Ted shall each inherit one-third of the entire estate.\nThe court noted that Ted and Mary had previously accepted appointment as copersonal\nrepresentatives. However, the court found that Ted and Mary were \xe2\x80\x9cannoyed\xe2\x80\x9d with each other, that\ncommunication between them had in essence stopped, and that any interaction had been handled\nthrough their respective attorneys. The court found that the conflict substantially hinders the\nadministration of the estate and removed them both as copersonal representatives. The court, citing\nNeb. Rev. Stat. \xc2\xa7\xc2\xa7 30-2412(b)(2) and 30-2456 (Reissue 2008), appointed Steven P. Vinton, an\nattorney, as successor personal representative. Ted appeals.\nASSIGNMENTS OF ERROR\nTed claims that the trial court erred in (1) determining that the estate passes to Susan, Mary, and Ted\nin equal shares; (2) removing Ted as a personal representative; and (3) appointing a successor\npersonal representative who does not have priority for appointment.\nSTANDARD OF REVIEW\nIn the absence of an equity question, an appellate court, reviewing probate matters, examines for\nerror appearing on the record made in the county court. In re Estate of Cooper, 275 Neb. 322, 746\nN.W. 2d. 663 (2008). On a question of law, however, an appellate court is obligated to reach a\nconclusion independent of the determination reached by the court below. Id.\nANALYSIS\nDivision of Donald\xe2\x80\x99s Estate.\nTed\xe2\x80\x99s first assignment of error is that the trial court erred in determining that the estate passes to the\nnext of kin in equal shares. All of the parties, including Ted, Mary, and Vinton, agree that \xc2\xa7 30-2303\napplies, which statute provides:\nThe part of the intestate estate not passing to the surviving spouse under section 30\xe2\x80\x932302, or the\nentire intestate estate if there is no surviving spouse, passes as follows:\n34\n\n\x0c(1) to the issue of the decedent; if they are all of the same degree of kinship to the decedent they\ntake equally, but if of unequal degree, then those of more remote degree take by representation;\n(2) if there is no surviving issue, to his parent or parents equally;\n(3) if there is no surviving issue or parent, to the issue of the parents or either of them by\nrepresentation;\n(4) if there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or\nmore grandparents or issue of grandparents, half of the estate passes to the paternal grandparents\nif both survive, or to the surviving paternal grandparent, or to the issue of the paternal\ngrandparents if both are deceased, the issue taking equally if they are all of the same degree of\nkinship to the decedent, but if of unequal degree those of more remote degree take by\nrepresentation; and the other half passes to the maternal relatives in the same manner; but if there\nbe no surviving grandparent or issue of grandparent on either the paternal or the maternal side,\nthe entire estate passes to the relatives on the other side in the same manner as the half;\n(5) if there is no surviving issue, parent, issue of a parent, grandparent or issue of a grandparent,\nthe entire estate passes to the next of kin in equal degree, excepting that when there are two or\nmore collateral kindred in equal degree, but claiming through different ancestors, those who claim\nthrough the nearest ancestor shall be preferred to those claiming through a more remote ancestor.\nAll parties agree that \xc2\xa7 30-2303(3) applies and that the entire estate passes to the issue of the parents\nby representation. Further, the parties agree that the trial court incorrectly applied \xc2\xa7 30-2303(5) after\nfinding that there was no issue of the parents. The trial court failed to identify Susan, Mary, and Ted\nas the issue of Donald\xe2\x80\x99s parents. Susan, Mary, and Ted, as the three surviving grandchildren of\nDonald\xe2\x80\x99s parents, are the \xe2\x80\x9cissue of the parents\xe2\x80\x9d of Donald. \xe2\x80\x9cIssue of a person means all his or her\nlineal descendants of all generations, with the relationship of parent and child at each generation\nbeing determined by the definitions of child and parent contained in the Nebraska Probate Code.\xe2\x80\x9d\nNeb. Rev. Stat. \xc2\xa7 30-2209(23) (Cum.Supp.2012). Thus, it is clear from the record that \xc2\xa7 30-2303(3)\ncontrols and that Donald\xe2\x80\x99s entire estate should be distributed to the issue of his parents, by\nrepresentation.\nTed claims that Susan, Mary, and he should take proportionate shares of the estate by\nrepresentation, with Susan and Mary each inheriting one-quarter of the estate through their deceased\nfather and Ted inheriting one-half of the estate through his deceased father. Ted reaches this result\nbecause \xc2\xa7 30-2303(3) states that the issue of the parents take \xe2\x80\x9cby representation,\xe2\x80\x9d rather than\nproviding that issue take when they are \xe2\x80\x9cnext of kin in equal degree,\xe2\x80\x9d as provided in \xc2\xa7 30-2303(5).\nMary counters that the estate is to be divided equally among the surviving heirs in the nearest degree\nof kinship, with Susan, Mary, and Ted each receiving an equal one-third share because they all have\nthe same degree of kinship to Donald.\nNeb. Rev. Stat. \xc2\xa7 30-2306 (Reissue 2008) provides the operative definition of the phrase \xe2\x80\x9cby\nrepresentation,\xe2\x80\x9d as used in \xc2\xa7 30-2303(3), as follows:\nIf representation is called for by this code, the estate is divided into as many\nshares as there are surviving heirs in the nearest degree of kinship and deceased\npersons in the same degree who left issue who survive the decedent, each\nsurviving heir in the nearest degree receiving one share and the share of each\ndeceased person in the same degree being divided among his issue in the same\nmanner.\n35\n\n\x0cTed argues \xc2\xa7 30-2306 means that the surviving issue of Stewart, namely Susan and Mary, would\nreceive one share and that he, as the sole surviving issue of Frederick, would receive one share.\nTed\xe2\x80\x99s end result would have Susan and Mary splitting Stewart\xe2\x80\x99s one-half share and Ted receiving\nFrederick\xe2\x80\x99s one-half share.\nTed misapplies \xc2\xa7 30-2306. The portion applicable to our facts here provides: \xe2\x80\x9cIf representation is\ncalled for by this code, the estate is divided into as many shares as there are surviving heirs in the nearest\ndegree of kinship ....\xe2\x80\x9d \xc2\xa7 30-2306 (emphasis supplied). Because none of Donald\xe2\x80\x99s brothers survived him,\nthere are no surviving heirs in the nearest degree of kinship, namely Donald\xe2\x80\x99s siblings. Thus, the\nprobate court must look to the next degree of kinship, or the next generation, which contains at\nleast one surviving heir. The first generation which has living issue is composed of Donald\xe2\x80\x99s parents\xe2\x80\x99\ngrandchildren, who also are Donald\xe2\x80\x99s two nieces and his nephew. There must be at least one\nsurvivor in a degree of kinship. Here, because none of Donald\xe2\x80\x99s siblings survived him, the nearest\ndegree of kinship to him containing a survivor was the generation containing two nieces and a\nnephew. And we note that Donald had no deceased nieces or nephews who have surviving issue.\nSusan, Mary, and Ted, who are all in an equal degree of kinship to one another, should, therefore,\neach receive a one-third share.\nTed relies on In re Estate of Tjaden, 225 Neb. 19, 402 N.W. 2d 288 (1987), for the proposition that the\nterm \xe2\x80\x9cright of representation\xe2\x80\x9d\xe2\x80\x9d under Nebraska law means distribution on a per stirpes basis,\nresulting in a 50\xe2\x80\x93percent share. However, In re Estate of Tjaden involved the construction of a\ntestator\xe2\x80\x99s intent where there was a will and, thus, is distinguishable:\n\xe2\x80\x9cThis Court is of the opinion that the clear intent of the testator was to provide\nfor a division by a \xe2\x80\x98per stirpes\xe2\x80\x99 division among identified beneficiaries, their issue\nor descendents. Clearly, the decedent intended to divide her estate, after specific\nrequests [sic], equally among her brothers and sisters and the issue of deceased\nbrothers and sisters or the issue of deceased issue of deceased brothers and\nsisters....\xe2\x80\x9d\n225 Neb. at 22, 402 N.W.2d. at 291. The In re Estate of Tjaden court quotes Gaughen v. Gaughen, 172\nNeb. 740, 112 N.W.2d 285 (1961), for the description of distribution per stirpes:\n\xe2\x80\x9cDistribution per stirpes is a division with reference to the intermediate course of\ndescent from the ancestor. It gives the beneficiaries each a share in the property\nto be distributed, not necessarily equal, but [, rather,] the proper fraction of the\nfraction to which the person through whom he claims from the ancestor would\nhave been entitled.\xe2\x80\x9d\n225 Neb. at 27, 402 N.W.2d at 293. The court concludes, \xe2\x80\x9cin a per stirpes distribution, ordinarily\napplicable in an intestate\xe2\x80\x99s estate, there is a division of property among a class or group of\ndistributees who take the share which a decedent would have taken if such decedent were alive,\ntaking such share by the right of representing the decedent.\xe2\x80\x9d Id. at 28, 402 N.W.2d at 294.\nThe parties are all applying a form of distribution traditionally referred to as \xe2\x80\x9cper stirpes\ndistribution\xe2\x80\x9d in interpreting the words \xe2\x80\x9cby representation\xe2\x80\x9d found in \xc2\xa7 30-2303(3) and defined in \xc2\xa7\n30-2306, but Ted is applying the older version of per stirpes distribution, referred to as \xe2\x80\x9cstrict per\n36\n\n\x0cstirpes,\xe2\x80\x9d \xe2\x80\x9cclassic per stirpes,\xe2\x80\x9d or \xe2\x80\x9cEnglish per stirpes.\xe2\x80\x9d Mary and Vinton are applying the modern\nversion of per stirpes distribution, referred to as \xe2\x80\x9cmodern per stirpes,\xe2\x80\x9d \xe2\x80\x9cmodified per stirpes,\xe2\x80\x9d or\n\xe2\x80\x9cAmerican per stirpes.\xe2\x80\x9d These terms are well explained in Samuel B. Shumway, Note, Intestacy Law\xe2\x80\x94\nThe Dual Generation Dilemma\xe2\x80\x94Wyoming\xe2\x80\x99s Interpretation of Its 130\xe2\x80\x93Year\xe2\x80\x93Old Intestacy Statute. Matter of\nFosler, 13 P.3d 686 (Wyo. 2000), 2 Wyo. L. Rev. 641 (2002). We borrow liberally from that article and\nsummarize as follows: The difference between strict per stirpes and modern per stirpes is the\ngeneration at which shares of the estate are divided. Strict per stirpes begins at the generation closest\nto the decedent, regardless of whether there are any surviving individuals in that generation, whereas\nmodern per stirpes begins at the first generation where there is living issue. Thus, the distinction\nbetween strict per stirpes and modern per stirpes will be most evident in instances where all of the\nheirs in the closest degree of kinship are deceased. In the present case, as earlier detailed, all of\nDonald\xe2\x80\x99s closest heirs, his parents and siblings, were deceased at the time of his death, and thus, the\nnext generation with living members is Donald\xe2\x80\x99s parents\xe2\x80\x99 grandchildren: Susan, Mary, and Ted.\nShumway concludes that although the strict per stirpes system was the early standard for America,\nthe majority of states now follow a different system of distribution.\nAccording to Shumway\xe2\x80\x99s article, 23 states have adopted some variation of modern per stirpes\ndistribution, including Nebraska. Shumway explains that the distinction between modern per stirpes\nand strict per stirpes is that, in the latter system, the estate is divided into shares at the generation\nnearest the decedent regardless of whether there are living members, whereas in modern per stirpes,\nthe estate is divided into equal shares at the nearest generation with surviving heirs. Nebraska is one\nof the 23 states that has adopted some variation of modern per stirpes distribution, because it has\nadopted the original 1969 Uniform Probate Code, a form of modern per stirpes. See Shumway, supra.\nSee, also, 1974 Neb. Laws, L.B. 354. Section 30-2306 is modeled after the original Uniform Probate\nCode. See Unif. Probate Code, rev. art. II, \xc2\xa7 2\xe2\x80\x93106, 8 (part I) U.L.A. (1998). In comparing the\nlanguage of the two provisions, they are the same. See, Restatement (Third) of Property: Wills and\nOther Donative Transfers \xc2\xa7 2.3 (1999); Edward C. Halbach, Jr., Uniform Acts, Restatements, and Trends\nin American Trust Law at Century\xe2\x80\x99s End, 88 Cal. L. Rev. 1877, 1904-05 (2000) (\xe2\x80\x9ca modernized per stirpes\n(or taking \xe2\x80\x98by right of representation\xe2\x80\x99 with the representation beginning with equal division in the\nnearest descendant generation in which there are living members (the \xe2\x80\x98stock\xe2\x80\x99 generation) with\nrepresentation thereafter for deceased members\xe2\x80\x99 issue) has come to be the prevalent current view,\nwith reinforcement from the original (1969) Uniform Probate Code\xe2\x80\x9d).\nTherefore, in the end, it is clear that the county court applied the incorrect statutory provision, but\nachieved the correct result. The probate court applied \xc2\xa7 30-2303(5)) when it should have applied \xc2\xa7\n30-2303 (3), because the parents of Donald did have surviving issue as defined in \xc2\xa7 30-2209 (23).\nSusan, Mary, and Ted each take a one-third share of the estate, as they take by representation as\ndefined in \xc2\xa7 30-2306. Therefore, we affirm the county court\xe2\x80\x99s division of Donald\xe2\x80\x99s estate.\nCONCLUSION\nAlthough the trial court incorrectly applied \xc2\xa7 30-2303(5), the correct end result was reached with\nregard to the distribution of Donald\xe2\x80\x99s estate. Susan, Mary, and Ted are each entitled to a one-third\nshare of the estate. We remand the cause to the county court for further proceedings consistent with\nthis opinion.\n\n37\n\n\x0cNotes, Problems, and Questions\n1. What would be the distribution of Donald\xe2\x80\x99s estate under the English per stirpes system? Under\nthe Modern per stripes system? Which outcome do you think Donald would have preferred?\n2. Let\xe2\x80\x99s change the facts so that Donald was survived by his brothers, Stewart and Frederick. What\nwould be the distribution of Donald\xe2\x80\x99s estate under the English per stirpes system? Under the\nModern per stirpes system?\n3. Let\xe2\x80\x99s change the facts so that Donald was survived by only his brother, Stewart. What would be\nthe distribution of Donald\xe2\x80\x99s estate under the English per stirpes system? Under the Modern per\nstirpes system?\n4. Let\xe2\x80\x99s change the facts so that all three of Donald\xe2\x80\x99s brothers predeceased him, but Ted died leaving\na son, Marvin. Thus, Donald would have been survived by his nieces, Susan and Mary, and his greatnephew, Marvin. What would be the distribution of Donald\xe2\x80\x99s estate under the English per stirpes\nsystem? Under the Modern per stirpes system?\n5. These are the facts of the case: Donald had three brothers, Stewart, Frederick and Robert. Robert\ndid not have any children. Stewart had three children, Susan, Anna and Mary. Frederick had two\nchildren, Ted and John. Susan, Anna, Mary, Ted and John did not have any children. Stewart,\nFrederick and Robert predeceased Donald. Anna and John also died prior to Donald. Let\xe2\x80\x99s change\nthe facts to include the following. Susan had a son, Glover. Mary had two children, Bonita and\nHenry. John has four children, Gail, Samuel, Pauline and Jason. Ted had one child, Kevin. Donald is\nonly survived by John and Mary. What would be the distribution of Donald\xe2\x80\x99s estate under the\nEnglish per stirpes system? Under the Modern per stirpes system?\n6. In the Evans case, the court relied on the 1969 version of the Uniform Probate Code. According\nto the court, the 1969 version of the UPC was a form of the Modern per stirpes system. For reasons\nthat will be discussed in the next section, the UPC changed its approached with the 1990\namendments from per capita by representation to per capita at each generation. After you review the\nUPC section, come back to the Evans case and determine how Donald\xe2\x80\x99s estate would have been\ndistributed had the court applied the 1990 version of the UPC?\n2.4.4\n\nPer capita at each generation (1990 Uniform Probate Code)\n\nThe majority of jurisdictions have adopted some form of the Uniform Probate Code (UPC).\nThus, key provisions of that Code will be discussed throughout this text. If you are studying in a\njurisdiction that has not adopted the UPC, it may still be helpful to use parts of the Code for\ncomparative purposes.\nA shortcoming of the English and the Modern per stirpes approaches is that descendants\nwho are equally related to the decedent may take unequal shares of the estates. For instance, some of\nthe decedent\xe2\x80\x99s grandchildren may receive a greater share of the estate than others. Consider a brief\nexample. A has three daughters, B, C and D. B has one child, E. C has two children F and G. D has\nthree children H, I and J. A dies survived by D. The following distribution would occur under either\nper stirpes system: A\xe2\x80\x99s estate will be divided into 3 shares. D will receive 1/3 of the estate. B\xe2\x80\x99s child,\n38\n\n\x0cE, will receive her 1/3 share of the estate. C\xe2\x80\x99s two children, F and G, will split her 1/3, so they will\neach receive 1/6 of the estate.\nAlthough E, F, G, H, I, and J are all A\xe2\x80\x99s grandchildren, they are treated differently. It is\nreasonable that H, I and J not receive anything from the estate because they are yielding to their\nmother, D. It is presumed that D will provide for her children, so they are not overly disadvantaged.\nNonetheless, there appears to be no strong justification for permitting E to take a bigger share of\nA\xe2\x80\x99s estate than her cousins F and G. Should F and G be penalized because their mother had more\nchildren than B? Do you think this is what A would have wanted? Relying on a survey conducted by\nFellows of the American College of Trust and Estate Counsel, the drafters of the UPC concluded\nthat A would probably answer the question in the negative.3 Consequently, the UPC was revised to\nadopt the system of representation referred to as per capita at each generation. The revised\nprovision is set forth below.\n\nUPC \xc2\xa7 2-106(b)\n(b) [Decedent\xe2\x80\x99s Descendants.] If, under Section 2-103(1), a decedent\xe2\x80\x99s intestate estate or a part\nthereof passes \xe2\x80\x9cby representation\xe2\x80\x9d to the decedent\xe2\x80\x99s descendants, the estate or part thereof is\ndivided into as many equal shares as there are (i) surviving descendants in the generation nearest to\nthe decedent which contains one or more surviving descendants and (ii) deceased descendants in the\nsame generation who left surviving descendants, if any. Each surviving descendant in the nearest\ngeneration is allocated one share. The remaining shares, if any, are combined and then divided in the\nsame manner among the surviving descendants of the deceased descendants as if the surviving\ndescendants who were allocated a share and their surviving descendants had predeceased the\ndecedent.\nUnder the UPC system, the division of the decedent\xe2\x80\x99s estate first transpires at the level\nclosest to the decedent where there is at least one living descendant. This step results in the same\ndistribution that would occur under the Modern per stirpes system. The difference in the two\napproaches is the manner in which the decedent\xe2\x80\x99s surviving grandchildren are treated. When the\nModern per stirpes system is applied, those descendants are treated equally. The UPC system\nmandates that the shares of deceased persons on the level closest to the decedent be treated as one\npot. The shares in that pot are divided equally among the representatives on the next generational\nlevel.\nExample:\nHillary, a widow, had three children, Yvette, Raymond, and Margaret. Yvette had one child, Carmen.\nRaymond had two children, Kathleen and Russell. Margaret had one child, Luke. Hillary was\nsurvived by Carmen, Kathleen, Russell, Margaret and Luke.\n\nThe results indicated that majority of persons surveyed preferred that persons equally related receive equal shares of\ntheir estates. Young, \xe2\x80\x9cMeaning of \xe2\x80\x98Issue\xe2\x80\x99 and \xe2\x80\x98Descendants,\xe2\x80\x99\xe2\x80\x9d 13 ACTEC Probate Notes 225 (1988).\n3\n\n39\n\n\x0cExplanation:\nHillary\xe2\x80\x99s estate is divided into three parts because there is one survivor, Margaret at the generation of\nHillary\xe2\x80\x99s children. This is exactly what would have happened under the English and Modern per\nstirpes systems.\nUnder the English and Modern per stirpes systems, Margaret would have gotten one-third of the\nestate; Carmen would have gotten Yvette\xe2\x80\x99s one-third; and Kathleen and Russell would have split\nRaymond\xe2\x80\x99s one-third. Luke would not have gotten a share because Margaret survived Hillary.\nUnder the UPC\xe2\x80\x99s approach, Margaret would have gotten one-third of the estate; the two-thirds that\nYvette and Raymond would have gotten had they survived Hillary would be divided equally among\nCarmen, Kathleen and Russell. They each would have gotten two-ninths of the estate.\nThe UPC approach may be confusing and has only been adopted by a few states. The thing\nto remember is that it is similar to the Modern per stirpes approach with regards to the first\ngeneration of descendants. Another example may be helpful.\nExample:\nDennis, a widower, had four children, Thelma, Louis, Molly and Curt. Thelma had one child,\nBradford. Louis had two children, Regina and Alberta. Molly had one child, Melody. Curt had three\nchildren, Curtis, Carla and Candice. Alberta had one child, Melissa. Dennis was survived by\nBradford, Regina, Melody, Curtis, Carla, Candice and Melissa.\nExplanation:\nUnder the UPC system, Dennis\xe2\x80\x99s estate is divided into seven parts because that is the number of\ndescendants in the generation where there is at least one survivor. The estate would be divided as\nfollows: Bradford (1/7), Regina (1/7), Melody (1/7), Curtis (1/7), Carla (1/7) and Candice (1/7).\nThe 1/7 share Alberta would have received is treated as one pot and dropped down to the next\ngeneration. Since she is the only survivor at that generation, Melissa takes a 1/7 share, the entire pot.\nIf other great grandchildren had existed, Melissa would have to had split the 1/7 share with them.\n2.4.5\n\nComparison\nLet\xe2\x80\x99s illustrate the different between the three systems.\n\nTo illustrate the variances between the three systems of representation, let\xe2\x80\x99s consider the Anderson\nfamily. Stephen Anderson had three children, Leonard, Brittany and Katherine. Leonard had three\nchildren, Patrick, Brenda and Deborah. Brittany had one child, Huey. Katherine had two children,\nWalter and Clifford. Let\xe2\x80\x99s consider four different scenarios.\nScenario One: Stephen dies intestate survived by Leonard, Brittany and Katherine.\nResult: Under all three systems, Leonard, Brittany and Katherine receive one-third of Stephen\xe2\x80\x99s\nestate.\n40\n\n\x0cScenario Two: Stephen dies intestate survived by Brittany and Katherine.\nResult: Under all three systems, the following distribution occurs: Brittany (1/3), Katherine (1/3),\nPatrick (1/9), Brenda (1/9), and Deborah (1/9). Patrick, Brenda and Deborah split Leonard\xe2\x80\x99s 1/3.\nScenario Three: Stephen dies intestate. All three of Stephen\xe2\x80\x99s children predeceased him.\nResult: Under the English and Modern per stirpes systems, the following distribution occurs:\nPatrick (1/9), Brenda (1/9), Deborah (1/9), Huey (1/3), Walter (1/6) and Clifford (1/6).\nApplication of the UPC system results in each of the grandchildren receiving one-sixth share of the\nestate.\nScenario Four: Stephen dies intestate. Leonard and Brittany predecease Stephen. Stephen is\nsurvived by Katherine and his grandchildren.\nResult: Under the English and Modern per stirpes systems, the following distribution occurs:\nKatherine (1/3), Huey (1/3), Patrick (1/9), Brenda (1/9) and Deborah (1/9). Huey, a grandchild,\nreceives the same portion of the estate as Katherine, a child. He receives a larger portion than the\nother grandchildren. Under the UPC, the following distribution occurs: Kathrine takes 1/3 and the\nother two 1/3 shares are combined into a single 2/3 share and distributed as if Katherine, Walter\nand Clifford had predeceased Stephen. As a result, Patrick, Brenda, Deborah and Huey each receive\n1/6 of the estate.\nProblems\nPlease divide the property using the English per stirpes, Modern per stirpes and UPC approaches.\n1. Hank, a widower, had three children, Keith, Patti, and Rosa. Keith had one child, Edward. Patti\nhad two children, Rochelle and Pamela. Rosa had three children, David, Carlton and Vince. Hank\ndied intestate. Hank was survived by Keith, Patti, Rosa, Edward, Rochelle, Pamela, David, Carlton\nand Vince.\n2. Theresa, a widow, had five children, Donald, Sharon, Cara, Anthony, and Pearl. Donald had one\nchild, Aaron. Sharon had three children, Rene, Tina and Victor. Anthony and Cara did not have any\nchildren. Pearl had two children, Francine and Howie. All of Theresa\xe2\x80\x99s children predeceased her.\nShe died intestate survived by her six grandchildren.\n3. Raven, a widow, had three children, Darrell, Andrew, and Madison. Darrell had four children,\nGino, Edwardo, Lucy, and Tonya. Andrew did not have any children. Madison had two children,\nNancy and Ruth. Madison also had two grandchildren, Barry and Martin by her daughter Nancy and\nher husband Bryan. Raven died intestate survived by Darrell, Gino, Edwardo, Lucy, Tonya, Ruth,\nBarry and Martin. Andrew and Madison predeceased Raven. Nancy predeceased Raven, leaving a\nwill devising all of her property to Bryan.\n4. Devon, a widower, had two children, Alice and Clint, both of whom predeceased him. Alice had\none child, Charles. Clint had three children, Edwin, Kenny, and Eric. Edwin had one child, Gus.\n41\n\n\x0cEric had three children, Harriet, Ivan, and Justin. Devon died intestate. He was survived by Charles,\nGus, Harriet, Ivan and Justin.\n5. Anna, a widow, had three children, Toni, Maddy, and Nelson. Toni had one child, Christina.\nChristina had two children, Eugenia and Catherine. Nelson had two children Lawrence and Thomas.\nToni had three children, Darlene, Sarah, and Tiffany. Darlene had three children, Lisa, Minnie, and\nNoah. Anna died intestate. Toni, Maddy, Nelson, Christian and Lawrence predeceased Anna. She\nwas survived by Eugenia, Catherine, Thomas, Darlene, Sarah, and Tiffany.\n2.5\n\nAncestors, Collaterals and Others.\n\n2.5.1\n\nParents\n\nIn some cases, the intestacy system places parents second in line to children. The law\nassumes that a decedent only wants his or her parents to inherit if he or she is not survived by\nchildren. Is it possible that a decedent would prefer that an elderly parent inherit instead of an adult\nchild?\nIn about half of the states, parents take if the decedent is not survived by children.\nHowever, in the other states, the surviving spouse of a decedent with no surviving children takes the\nintestate decedent\xe2\x80\x99s entire estate. Even in jurisdictions that favor parents, parents may be prevented\nfrom inheriting.\n\nUniform Probate Code \xc2\xa7 2-114. Parent and Child Relationship.\n(c)\nInheritance from or through a child by either natural parent or his [or her] kindred is\nprecluded unless that natural parent has openly treated the child as his [or hers], and has not refused\nto support the child.\nSection 2-114 was originally designed to punish \xe2\x80\x9cdead beat dads\xe2\x80\x9d. When the Code was\nrevised in 1990, the section was amended to apply to mothers. As the next two cases illustrate,\nmothers can be just as neglectful as fathers.\n\nIn re Estate of Fleming, 991 P.2d 128 (Wash. Ct. App. 2000) (Voluntary Termination of\nParental Rights)\nBAKER, J.\nMargaret Fleming voluntarily surrendered her infant son Thomas Fleming to a charitable\norganization for adoption. At that time, she agreed to a court order that permanently relinquished all\nmaternal rights to him. However, Thomas was never adopted. He died intestate fifty years later with\nno spouse or issue. Margaret Fleming and her later-born son Antonio Marzan now assert that they\nare intestate heirs of Thomas. Because we hold that the termination order permanently divested\nFleming and her kin of intestate inheritance rights, Thomas\xe2\x80\x99s estate escheats to the State of\nWashington.\n42\n\n\x0cThomas A. Fleming was born out of wedlock to Margaret Fleming in 1946. Paternity was never\nestablished. Ms. Fleming decided to give up her son for adoption. The King County Juvenile Court\nentered a parental termination order in 1947 stating that Margaret Mary Fleming was \xe2\x80\x9chereby\npermanently deprived of any and all maternal rights and interests in and to the said Baby Boy\nFleming,\xe2\x80\x9d committing him into the permanent custody of Catholic Charity of the Diocese of Seattle,\nand authorizing that organization to consent to his adoption. Thomas was never adopted. He lived\nin foster care until the age of majority.\nThomas died intestate in 1996. He was not married and he had no children or stepchildren. Thomas\nwas survived by two biological relatives: his mother Margaret Fleming and his half-brother Antonio\nMarzan, who was born to Ms. Fleming after she terminated her parental rights to Thomas.\nIn 1998, Judith Kovacs, the personal administrator of Thomas\xe2\x80\x99s estate, filed a petition for\ndetermination of heirship. She asked the court to find that Margaret Fleming and her kin were not\nentitled to inherit in intestacy from Thomas because Ms. Fleming had terminated all maternal rights\nto Thomas at his birth. She argued that Thomas\xe2\x80\x99s estate should therefore escheat to the State of\nWashington because he died intestate without any legal heirs. In the alternative, she asked the court\nto instruct what action she should take if it determined that there are potential heirs to the estate.\nMs. Fleming and Mr. Marzan then filed a response and objections to the petition.\nThe commissioner agreed with Kovacs and ruled that the estate escheated because Thomas died\nwithout legal heirs. He found that the 1947 order terminating Margaret Fleming\xe2\x80\x99s maternal rights to\nThomas also extinguished her right to intestate inheritance, and that Marzan could not inherit from\nThomas because his right to intestate inheritance derived from Margaret Fleming\xe2\x80\x99s extinguished\nmaternal rights. Margaret Fleming died soon after, and her son Marzan was appointed personal\nrepresentative of her estate. Marzan then filed a motion to revise the ruling of the commissioner.\nThe superior court upheld the commissioner\xe2\x80\x99s order. Marzan now appeals that ruling.\nII\nAs a preliminary matter, Marzan contends that Kovacs, as the personal representative of the estate,\nlacked standing to argue in favor of escheat because the State waived its right to serve as personal\nadministrator under RCW 11.08.160 and because there were potential intestate heirs. We disagree.\nThere is nothing in the probate statutes or case law that constrains the personal representative\xe2\x80\x99s\nauthority to present evidence of escheat to the court when the State declines the right to serve as\npersonal administrator. A personal representative has a duty to exercise the utmost good faith and to\nutilize the skill, judgment and diligence which would be employed by an ordinarily cautious and\nprudent person in the management of her own business affairs. While we need not hold that Kovacs\nhad a duty to argue in favor of escheat, it is clear that she had standing to do so when a good faith\nargument under the facts and law appeared to merit such a conclusion.\nThe primary issue in this case is whether the 1947 termination order permanently deprived Margaret\nFleming of the right to inherit in intestacy from Thomas. This is an issue of first impression in\nWashington. There are numerous cases addressing the intestate inheritance rights of adopted\nchildren and their kin. Thomas was never adopted, however, so those cases are not dispositive.\nTherefore, we must rely on statutory interpretation to determine the legal effect of the parental\ntermination order on Fleming\xe2\x80\x99s intestate inheritance rights. Issues of statutory construction are\n43\n\n\x0cquestions of law, reviewed de novo on appeal.\nWe first determine which statutes govern the legal effect of the termination proceeding. Kovacs and\nthe State urge us to apply current dependency and adoption statutes because the probate statutes\nthat apply are those in effect at the time of the decedent\xe2\x80\x99s death, and the intestacy statutes vest heirs\nwith legal interests only upon the death of their intestate ancestor. Marzan agrees that modern\nprobate statutes apply, but argues that the termination proceeding is a separate matter that must be\nconsidered under the 1947 statutes. We hold that the legal effect of the 1947 termination order must\nbe analyzed under the statutes in force at the time of the termination proceeding, not under those in\neffect at the time of Thomas\xe2\x80\x99s death in 1996. The 1947 parental termination order was issued under\nRem.Rev.Stat. \xc2\xa7 1700, which governed surrender of a child to a charitable society for the purposes\nof receiving, caring for, or placing the child out for adoption. Therefore, we consider the\ntermination order in light of that statute, and we need not address the arguments advanced by\nKovacs and the State regarding the application of modern adoption and termination statutes to this\ncase.\nWe next determine whether the 1947 statute and termination order operated to permanently divest\nMargaret Fleming of her right to intestate inheritance from her biological son Thomas.\nUnder Rem. Rev. Stat. \xc2\xa7 1700, when a child is surrendered to the care and custody of a benevolent\nor charitable incorporated society for the purpose of receiving, caring for, or placing the child out\nfor adoption, then, (but not otherwise), the rights of its natural parents or of the guardian of its\nperson (if any) shall cease and such corporation shall become entitled to the custody of such child,\nand shall have authority to care for and educate such child or place it either temporarily or\npermanently in a suitable private home in such manner as shall best secure its welfare.\nThe 1947 order approved Margaret Fleming\xe2\x80\x99s voluntary relinquishment \xe2\x80\x9cof all of her maternal rights\nand interests in and to the said child,\xe2\x80\x9d ordered that Margaret Fleming \xe2\x80\x9cis hereby permanently\ndeprived of any and all maternal rights and interests in and to the said Baby Boy Fleming,\xe2\x80\x9d and\ncommitted Thomas to the permanent custody of the Catholic Charities of the Diocese of Seattle.\nMargaret Fleming chose to surrender Thomas to a charitable society under Rem. Rev. Stat. \xc2\xa7 1700.\nBy the express language of that statute and the termination order, Margaret Fleming was\npermanently deprived of all maternal rights and interests in Thomas. The statute and order need not\nexpressly provide that termination of parental rights terminates intestate succession, because \xe2\x80\x9call\nmaternal rights and interests\xe2\x80\x9d clearly includes intestate inheritance rights.\nAccording to Marzan, Fleming\xe2\x80\x99s intestate inheritance rights were not extinguished because a series\nof early Washington Supreme Court cases hold that the rights of any kin to inherit in intestacy from\neach other cannot be extinguished absent express legislative declaration. Because the Legislature has\nnever expressly stated that termination of parental rights simultaneously cuts off intestate inheritance\nrights, Marzan argues that only a decree of adoption can have this effect. Marzan\xe2\x80\x99s overly broad\nreading of these cases is incorrect. The statutes addressed in those cases were silent as to the right of\nadopted children to inherit in intestacy from their biological parents. However, as noted, the statute\nand the order issued pursuant to it in this case deprived the natural parent of all rights regarding the\nchild. The cases relied on by Marzan tracked the statutes then in effect when they held that the\nLegislature had not expressly terminated the intestate inheritance rights of a child from its biological\nparents. But the cases did not address the reverse issue presented here.\n44\n\n\x0cIn our view, the 1947 statutes could and did give effect to the differing circumstances of a natural\nparent and a child in termination and adoption proceedings. Children who were permanently\nsurrendered to foster care but never adopted had no opportunity for intestate inheritance other than\nfrom their biological parents. On the other hand, parents who chose to relieve themselves of the\nobligations of child rearing by relinquishing their children to an adoption agency nevertheless\nretained their legal relationship with other blood kin. There is little reason for them to reap the\nbenefits of intestate inheritance if a child should happen to die intestate without having been\nadopted.\nFinally, because we hold that the 1947 order terminated Margaret Fleming\xe2\x80\x99s intestate inheritance\nrights, we must decide whether it also permanently severed the right of any later born siblings to\ninherit in intestacy from Thomas. Marzan contends that even if the termination of parental rights\neffectively removed Margaret Fleming from Thomas\xe2\x80\x99s family, he is a direct collateral heir of Thomas\nand can inherit in his own right. Kovacs contends that Marzan\xe2\x80\x99s right to inherit in intestacy must\ndescend through his mother, and if her right to inherit was terminated then the line has been severed\nand Marzan\xe2\x80\x99s right terminates as well.\nTo determine intestate succession, we apply the probate statutes in effect at the time of the\ndecedent\xe2\x80\x99s death, in this case 1996. Intestacy statutes establish a system of intestate succession\nwhereby the line of descent and distribution flows through a decedent\xe2\x80\x99s parents to reach the issue of\nparents. The line must flow through a common ancestor. Margaret Fleming, as the parent of Marzan\nand Thomas, was the only direct connection between them. When Margaret Fleming\xe2\x80\x99s parental\nrights were terminated, the effect was to permanently sever Thomas from her family line, leaving\nhim without a legal parent. Therefore, the line of intestate succession between Marzan and Thomas\nwas severed as well.\nOur result is in accord with In re Estates of Donnelly, in which the Washington Supreme Court held\nthat an adopted child could not inherit in intestacy from her biological paternal grandfather because\nshe had been legally removed from her natural bloodline for inheritance purposes. The Court stated\nthat because \xe2\x80\x9cthe adopted child cannot take from her natural father, she should not represent him\nand take from his father.\xe2\x80\x9d Similarly, because Margaret Fleming cannot take from Thomas, Marzan\nshould not be able to step in and represent her.\nWe hold that Margaret Fleming and her son Antonio Marzan are not intestate heirs of Thomas\nFleming\xe2\x80\x99s estate. Therefore, there are no legal heirs, and the estate must escheat to the State of\nWashington.\nAFFIRMED.\n\nNew Jersey Div. of Youth and Family Services v. M.W., 942 A.2d 1 (N.J. App. Div. 2007)\n(Involuntary Termination of Parental Rights)\nCOLLESTER, J.A.D.\nThis is an appeal from a judgment retroactively terminating the parental rights of the natural mother\n45\n\n\x0cto her deceased child, and alternatively, holding that the mother\xe2\x80\x99s right of inheritance by intestacy is\nextinguished on equitable grounds. This novel issue was precipitated by a complaint for\nguardianship brought by the Division of Youth and Family Services (the Division) to terminate\nM.W.\xe2\x80\x99s parental rights to three of her sons: T.H., Jr., born August 28, 1998; R.W. born on June 13,\n1995; and his identical twin, F.W., who died on January 5, 2003. In an earlier opinion we affirmed\nthat portion of the judgment terminating M.W.\xe2\x80\x99s parental rights to R.W. and T.H., Jr. We now\nreview the determination of the trial judge as to the deceased F.W. In doing so it is necessary to\nrepeat some of the facts set forth in our prior opinion.\nThe facts of this case would shock the cynical and wound the most hardened of heart. When the\ncircumstances were reported by the media, the case outraged the citizenry and shook the\nfoundations of the State\xe2\x80\x99s child support system. It began on the morning of January 4, 2003, when\nthe Newark Police Department received an anonymous 9\xe2\x80\x931\xe2\x80\x931 call reporting that two beaten and\nstarving children were found locked in the basement of an apartment building at 188 Parker Street.\nWhen police arrived, they were met by Shawn Slappy who said he made the 9\xe2\x80\x931\xe2\x80\x931 call. Slappy told\nthem he was the boyfriend of Sherry Murphy, who was a tenant in the building, and that he moved\nin with her about two weeks earlier. He said he was unaware of the existence of these children until\nthat morning when he used a screwdriver to pry open the locked basement door to search for a pair\nof his boots he believed Murphy put in the basement. When he saw \xe2\x80\x9csomething moving,\xe2\x80\x9d he\ninvestigated and was shocked to find two young boys locked in a dark and fetid room with only a\nbed, no sink, no toilet, and no food. Slappy brought the frightened children upstairs to Sherry\nMurphy\xe2\x80\x99s apartment and made the 9\xe2\x80\x931\xe2\x80\x931 call.\nThe condition of the two boys was deplorable. They were emaciated with burn marks and new and\nold bruises all over their bodies, evidencing severe physical abuse. Their hair was matted. They\nsmelled rank because their clothing was filthy with urine and feces. Seven-year-old R.W. told police\n\xe2\x80\x9cSherry\xe2\x80\x9d put them in the basement. The police asked Slappy where Sherry Murphy was, and he said\nshe left early that morning. He had no idea where she was or when she would return.\nThe boys were taken by EMT to University Hospital in Newark for examination and treatment, and\nthe Division of Youth and Family Services (\xe2\x80\x9cthe Division\xe2\x80\x9d) was notified. Division worker Sandra\nOsborne responded to the hospital at about 11:30 a.m. She reported as follows:\n[T.H., Jr.], age 4, appeared to be extremely weak and needed assistance standing. He was not able\nto verbalize at all. However he understands what is being said to him. [He] has multiple bruises\nover his entire body and appears to have been burned over the buttocks, arms, legs, face and\nstomach. He is very thin and frail for his age. [R.W.], age 7, was able to provide his name and also\nhis brother\xe2\x80\x99s name. [R.W.] was also filthy with old burns and marks on back and neck. His skin is\ndry and scaly, clothes were wet with the smell of urine. He was very weak and hungry. [R.W.] gave\nhis age as 6 years old, but did not know his brother[\xe2\x80\x99]s age. Both boys appear to be\nunderdeveloped for [their] ages. It is not known how long the children were in the basement,\nhowever, it appears that they have been locked up for 3 to 4 weeks.\n[R.W.] was able to tell me that Sherry put him and his brother in the basement. He stated that she\nonly fed them sometime[s] not all the time. I asked [R.W.] how did he get the bump on his eye. He\nstated \xe2\x80\x9cSherry punched me in my face for peeing on the floor.\xe2\x80\x9d He also said that she put [T.H.,\nJr.] in hot water because he did \xe2\x80\x9cdo\xe2\x80\x9d on the floor. I then asked [R.W.] did he know where his\nmother was and he responded, \xe2\x80\x9cYes.\xe2\x80\x9d I said where is she? He responded, \xe2\x80\x9cShe\xe2\x80\x99s locked up.\xe2\x80\x9d I\n46\n\n\x0casked [R.W.] how long has he and his brother been in the basement? He responded, \xe2\x80\x9cA long\ntime.\xe2\x80\x9d ... [R.W.] did not want to answer any more questions at that time because he wanted to eat.\nHospital records and medical reports confirm the pitiful condition of the two boys. Four-year-old\nT.H., Jr. had hypopigmented patches on his skin resembling burns, scaling skin, osteopenia\n(generalized reduction of bone mass), significant dental decay, and a distended abdomen.\nCircumferential scarring around the ankles, wrists, and neck indicated he was bound with some type\nof restraints. He weighed only twenty-nine pounds and measured three feet tall, both under the third\npercentile for a four-year-old. Burn scars on his chest, neck, feet and buttocks were consistent with\nsecond degree burns. As a result of the burn scarring, T.H., Jr. had to wear a compression garment\nsuit over his entire body for twenty-three to twenty-four hours a day for almost a year. Seven-yearold R.W., twin of the deceased F.W., was emaciated. He weighed thirty-seven pounds and was three\nand one-half feet tall, a height and weight below the third percentile for a child of his age. Physical\nexamination disclosed multiple scars, old burns, lesions, scabbing, dried skin, a distended stomach,\nand severe dental decay. He suffered from chronic protein calorie malnutrition and micronutrient\ndeficiency.\nA hospital registration clerk searched the computer for past admittances and discovered M.W. was\nthe mother of the two boys. A contact number was listed for her in New York City. When Osborne\ncalled the number, R.G. answered the phone and said she was M.W.\xe2\x80\x99s sister and the children\xe2\x80\x99s aunt.\nShe related that every time she asked M.W. about the children, M.W. was \xe2\x80\x9cvague,\xe2\x80\x9d saying only that\nthey were temporarily staying with her cousin, Sherry Murphy, in Irvington until M.W. could find\nher own apartment. R.G. told Osborne that the children had lived with Murphy from March 2001 to\nJuly 2001 while M.W. served a jail sentence and that when she was released, M.W. moved into\nMurphy\xe2\x80\x99s apartment. R.G. said Murphy threw M.W. out after an argument a month later, and M.W.\nleft her children. M.W.\xe2\x80\x99s oldest son, ten-year-old F.D.W., left Murphy\xe2\x80\x99s home to live with R.G. and\nher son in New York. The three younger boys remained with Murphy. When Osborne told her that\nonly R.W. and T.H., Jr. were found in the basement, R.G. became concerned because she knew\nF.W. was also living with Murphy. R.G. told Osborne that she believed M.W. was living in Newark\nwith P.W., another sister, and she supplied the telephone number.\nOsborne checked Division records and found that M.W. did have another son named F.W. who was\nR.W.\xe2\x80\x99s twin brother. She then spoke to P.W. who told her that M.W. had been living with her since\nleaving Murphy\xe2\x80\x99s apartment in August 2001. P.W. said that when she asked about the boys, M.W.\ntold her that F.D.W. was living in New York with R.G.\xe2\x80\x99s son and the other three were living with\nrelatives in North Carolina. P.W. said that M.W. was not at her home and had left that morning to\ngo to New York. When Osborne told P.W. about the discovery that morning of the two boys in the\nbasement, P.W. became very disturbed and went to University Hospital to see them. At the hospital\nP.W. told Osborne that she was very upset that F.W. was missing because she had no idea where the\nchild might be. When asked about Sherry Murphy, P.W. said she was M.W.\xe2\x80\x99s cousin and worked\nnights in various bars as a go-go dancer.\nCaseworker Osborne then spoke to eight-year-old R.W. and asked him about his twin brother. R.W.\nsaid that the last time he saw F.W. was \xe2\x80\x9ca long time ago\xe2\x80\x9d when \xe2\x80\x9cJoe\xe2\x80\x9d took him and \xe2\x80\x9cSherry put\n[him] in hot water and he was screaming.\xe2\x80\x9d \xe2\x80\x9cJoe\xe2\x80\x9d was later identified as Joseph Reese, Sherry\nMurphy\xe2\x80\x99s former boyfriend. R.W. later reported that he had been sexually abused by Reese.\nThat night the Newark Police Department issued a missing persons bulletin for F.W. and then\n47\n\n\x0ccontinued the search for M.W. and Sherry Murphy. Later the police received information that M.W.\nwas admitted to Lincoln Hospital in the Bronx after being struck by an automobile. The night ended\nwith no information on either Sherry Murphy or the missing F.W.\nAt about 3 p.m. the following afternoon, Newark police officers returned to the basement at 188\nParker Street with a trained cadaver-sniffing dog. They found what they feared most\xe2\x80\x94the decaying\nbody of seven-year-old F.W. in a Rubbermaid storage bin located about fifteen feet from where his\nbrothers were found the day before. The desiccated corpse was so badly decomposed that only\nDNA could verify identity. No remaining facial features remained\xe2\x80\x94no eyes, no nose, and no lips.\nF.W. was pronounced dead at 3:35 p.m. that day, January 5, 2003, but it was the opinion of the\nmedical examiner that the child had been dead for several weeks. The death certificate listed F.W.\xe2\x80\x99s\ndeath as a homicide and noted blunt trauma to the head and abdomen.\nThe gruesome discoveries in the Newark basement of two starving and abused young boys and the\nmummified remains of a third spurred extensive media coverage throughout New Jersey and the\nmetropolitan area. At F.W.\xe2\x80\x99s funeral the boy who had been abused, abandoned, and forgotten and\nknown to few, was mourned by over 400 people including the Governor of New Jersey, a United\nStates Senator and the Mayor of Newark. Richard Lezin Jones,\nThe police and FBI hunt for Sherry Murphy ended after four days. On January 9, 2003, she was\nfound hiding in the Newark apartment of a man she met on the street three days earlier. She was\narrested, remanded to jail on charges of child endangerment, and subsequently indicted on seven\ncounts of attempted murder, kidnapping, and child endangerment. Avoiding trial, she pleaded guilty\nto two counts of aggravated assault, two counts of criminal restraint, and two counts of endangering\nthe welfare of a child. At her plea hearing Murphy said that F.W. died while she was living in\nIrvington. She hid the body and took it with her when she moved to Newark in December 2002,\nwhere she placed it in the basement. She further admitted to confining R.W. and T.H., Jr. in the unlit\nbasement without food, water or a toilet and causing their severe malnutrition. She also admitted to\nburning the buttocks of four-year-old T.H., Jr. by placing him in scalding bath water and then failing\nto obtain medical treatment for the injury.\nSherry Murphy was sentenced on November 2, 2005, to an aggregate term of twenty-five years with\nsixteen years parole ineligibility under the No Early Release Act. Her sentence was affirmed on\nappeal. Her projected parole eligibility date is August 13, 2016. Murphy\xe2\x80\x99s seventeen-year-old son\nWesley entered a guilty plea to reckless manslaughter causing the death of F.W. He was paroled on\nSeptember 2, 2005. Murphy\xe2\x80\x99s boyfriend, Joseph Reese, pleaded guilty to sexual assault on R.W. and\nwas sentenced to a five-year term in State prison. He was released on May 31, 2007.\nAfter the discovery of R.W. and T.H., Jr. on January 4, 2003, the Division sought and received an\nemergency order of temporary custody and supervision of the children pending a fact finding\nhearing scheduled for February 24, 2003. M.W. was served with the order and a complaint and order\nto show cause for continued care of R.W. and T.H., Jr. by a Division caseworker while M.W. was in\nLincoln Hospital in the Bronx recovering from her injuries in the January 4, 2003 accident. The\ncaseworker reported that M.W. was neither remorseful nor sad. She said that she had not seen her\nchildren since August 2001 when she left Sherry Murphy\xe2\x80\x99s apartment. She claimed that she made\nseveral failed attempts to get R.W., F.W., and T.H., Jr. back, but she did not seek the aid of the\npolice or the Division. She blamed Sherry Murphy for any harm done to her children, but she did\nnot express any anger toward Murphy, referring to her as her favorite cousin.\n48\n\n\x0cFollowing the fact finding hearing on February 24, 2003, Judge Glenn A. Grant found the Division\nhad proven by clear and convincing evidence that M.W. had abused and neglected R.W. and T.H.,\nJr. by placing them in the care of Sherry Murphy. He directed that the two boys remain in foster care\nand ordered legal custody was to remain with the Division while alternative placement was explored.\nWhile the Division was pursuing placement, M.W. was discharged from the hospital. She was then\narrested in New Jersey on charges she violated the conditions of her probation imposed as a result\nof a 1996 conviction of child endangerment of children left in her care by a friend serving a prison\nsentence. M.W. was found guilty of violating probation, and she was sentenced to four years in\nprison.\nR.W. and T.H., Jr. were reluctant to talk to Division caseworkers and others about the abuse they\nsuffered at the hands of Sherry Murphy and their mother. In bits and pieces they disclosed the evil\nthey endured in the Newark basement. R.W. said they had no food and were forced to eat their\nvomit and drink urine. He added they were tied or shackled by their ankles and wrists. They were\nburned in hot water and as a consequence were frightened at the sight of a bathtub. R.W. said\nMurphy burned them with lit cigarettes just like their mother and that Sherry Murphy learned from\ntheir mother to burn them as punishment.\nIt soon came to light that the Division had a long history with M.W. and her family. In 1989 when\nshe was sixteen, M.W. gave birth to her first child, a daughter named K.W. M.W.\xe2\x80\x99s parental rights to\nK.W. were terminated six years later. In the interim, her first son, F.D.W., was born on May 6, 1991,\nand the twin boys, R.W. and F.W., were born on June 13, 1995.\nThe Division\xe2\x80\x99s involvement with M.W. and her sons began in 1992 when an anonymous caller\nreported that the children had no food and that the house was filthy and roach infested. In July 1996\nit was reported that five-year-old F.D.W. and the eleven-month-old twins, R.W. and F.W., were left\nalone in their apartment without food for several hours and that the mother often left the children\nalone. When confronted, M.W. admitted to leaving the children by themselves. She signed her first\nof many case plans with the Division. She failed to complete or cooperate with the Division on any\nof them.\nThe Division received another anonymous call on December 4, 1996, this one reporting that drug\ntrafficking was going on in M.W.\xe2\x80\x99s apartment and that her children were left unattended and without\nproper clothing. The allegations were deemed unsubstantiated. In February 1997, M.W. failed to\nmaintain contact with the Division as required by her case plan. After attempts to locate her were\nunsuccessful, a request was made by the Division for a hold on her welfare benefits until she\ncontacted the Division. On March 4, 1997, the Division received another referral stating that M.W.\xe2\x80\x99s\napartment was filthy with garbage all over the floor, that F.D.W. was begging for food, and all the\nchildren were regularly left unattended. A field visit to the home convinced the caseworker that the\nfamily was \xe2\x80\x9cstable,\xe2\x80\x9d although the apartment was crowded and unclean.\nM.W. signed another case plan on April 2, 1997, agreeing to cooperate with the Division\xe2\x80\x99s services.\nHowever, five days later on April 7, 1997, the Division sent M.W. a letter stating that after review by\nthe caseworker and her supervisor, it was determined that M.W.\xe2\x80\x99s family no longer required\nsupervision and the Division was closing its case. This decision was both puzzling and disturbing\nsince the Division was well aware that M.W. was indicted three months earlier for child\n49\n\n\x0cendangerment based on her physical abuse of a friend\xe2\x80\x99s children who were left in her care while the\nmother served a jail sentence. The report made to the Division and the prosecutor was that those\nchildren, ages seven, five, and three and a half, were beaten with a belt, a belt buckle, and a coat\nhanger and burned with lit cigarettes. For some unexplained reason the case was delayed almost five\nyears. On April 2, 2002, M.W. pleaded guilty to second-degree child endangerment, and pursuant to\na plea agreement, was sentenced to a five year term of probation.\nAfter closing its case on M.W. and her children in April 1997, the Division was forced to re-open\nthe case on M.W. and her four sons in October 1997, amid further reports of neglect and abuse of\nthe children. M.W.\xe2\x80\x99s resistance to Division supervision continued. She signed five more case plans to\ncooperate with the Division and its services, but she did the opposite. From October 1997 to\nDecember 2001 she moved ten times with her children without notifying the Division. Once again\n\xe2\x80\x9cholds\xe2\x80\x9d were requested on her welfare benefits until she and the children were finally located.\nMedical neglect was substantiated in 1990 when caseworkers saw that F.D.W. had an untreated\nlaceration on his palm. He was taken to the emergency room where the wound was cleaned and\ntreated, but it was too old to be sutured. Later that year M.W. was referred to the Ad House Newark\nNew Start Project for a psychological evaluation, a drug screening, and pre-natal care since she was\nfour months pregnant with T.H., Jr. But within a month, M.W. again moved without informing the\nDivision. During this time, she gave birth to T.H., Jr. on August 20, 1998.\nAfter several more requests for holds on her welfare benefits, M.W. finally contacted the Division\non October 1, 1998 to advise that she was living in East Orange. M.W. was required to sign another\ncase plan on October 7, 1998. She agreed to enroll F.D.W. in school and agreed to attend the\nApostles\xe2\x80\x99 House Family Preservation Program to learn housekeeping and hygiene skills. But within a\nmonth, M.W. told her caseworker that she did not want parent aid services and would not attend.\nShe then disappeared until February 2, 1999, when a Division caseworker saw her on Broad Street in\nNewark and spoke with her. M.W. said she had moved back to Newark and gave the Division\nworker the address. But when the caseworker visited the address on February 22, 1999, she was told\nthat M.W. and her children had left and were living with relatives of T.H. On March 8, 1999, T.H.\xe2\x80\x99s\nrelatives informed the Division that M.W. left their apartment on March 1, 1999, with her children\nand they did not know their whereabouts.\nM.W. and the children were located in East Orange on April 27, 1999, after a referral from F.D.W.\xe2\x80\x99s\nschool reporting he had an inch long cut on his thumb and he told the nurse that his mother had cut\nhim with a knife while she was trying to attack her boyfriend and that there was a gun under his bed\nat home. A worker visited the family that afternoon and decided that the allegations were\nunsubstantiated. But M.W. was requested to sign another case plan because the school reported that\nF.D.W. was classified as a non-reader.\nOn July 28, 1999, the Division was contacted by H.H., the paternal grandmother of T.H., Jr., who\nsaid that three weeks earlier M.W. asked her to watch the child one afternoon. M.W. never came\nback and left no food or clothing for the child. The following day, the Division placed F.D.W.,\nR.W., and F.W. in the care of their maternal aunt, R.G., while T.H., Jr. remained with H.H. During a\nvisit by the caseworker to H.H.\xe2\x80\x99s home on August 19, 1999, H.H. said she still had not seen or heard\nfrom M.W. in two months.\nSometime between the end of November 1999 and June 2000, F.D.W., F.W., and R.W. were\n50\n\n\x0creturned to M.W. She agreed to a psychological evaluation on July 11, 2000. The examining\npsychologist reported M.W. posed a risk to her children without Division services and parental\ntraining. However, M.W. did not complete the recommended parenting skills courses or cooperate\nwith other Division services.\nThe Division was next notified in August 2000 by R.G., M.W.\xe2\x80\x99s sister in New York, that F.D.W.,\nR.W., and F.W. were living with her. But by late October they were again living with M.W. in New\nJersey. Then on January 17, 2001, the Division received an anonymous referral that M.W. and her\nchildren were living in an apartment with broken windows and no heat. A caseworker visited the\napartment building that day, saw M.W. and the children, and reported the referral as\nunsubstantiated. This was the last time that anyone from the Division saw any of M.W.\xe2\x80\x99s sons until\nJanuary 4, 2003, at University Hospital.\nAfter January 17, 2001, the Division again lost contact with M.W. On July 13, 2001, P.W. called the\nDivision to report that F.D.W. was with her in New York and that R.W., F.W. and T.H., Jr. were\nliving with Sherry Murphy while M.W. was serving a county jail sentence. On October 3, 2001, P.W.\nadvised the Division that F.D.W. was now living with her son in New York. She also said that M.W.\nhad been released from jail and was living with her other three sons with Sherry Murphy in\nIrvington. P.W. informed the caseworker that F.D.W. told her M.W. physically abused her children\nand burned them with lit cigarettes. On the same day, the caseworker went to Sherry Murphy\xe2\x80\x99s\nhome but was told that M.W. and her children did not live there. Three weeks later the caseworker\nreturned to Murphy\xe2\x80\x99s home and was told M.W. and the three children were out.\nThe caseworker then spoke to R.G. in New York who said that M.W. did not properly feed or\nclothe the children and failed to enroll them in school. She added that M.W. and Sherry Murphy\nwere abusive individuals and that F.D.W. told her both women beat and burned all the children and\nthat Murphy\xe2\x80\x99s son tried to sexually abuse him.\nFinally, after ten months, the Division successfully made contact with M.W., and a field visit at the\nMurphy home was scheduled for November 13, 2001. But M.W. called at the last minute to say that\nshe was too busy until after Thanksgiving. The caseworker made an unannounced field visit the\nfollowing day. Murphy answered the door and said that M.W. and the children were not home and\nthat all of them were doing well. During another unfruitful visit on November 26, 2001, the\ncaseworkers were told by Murphy\xe2\x80\x99s brother that M.W. and her children were away for a week.\nDivision caseworkers tried once again on December 10, 2001. As they were walking up the steps,\nthey met a young man who told them that M.W. and her children were inside. But as they\napproached the front door another man said the caseworkers had \xe2\x80\x9cjust missed her.\xe2\x80\x9d\nIncredibly, the Division gave up. The following day, December 11, 2001, the decision was made to\nclose the case even though there were reports emanating from F.D.W. that Sherry Murphy and\nM.W. had physically abused all the boys and the children had not been seen by a caseworker in a\nyear. The final \xe2\x80\x9cIn\xe2\x80\x93Home Safety Assessment\xe2\x80\x9d prepared by the Division caseworker stated that\nSherry Murphy said M.W. and the children were living with her, that they were \xe2\x80\x9cfine,\xe2\x80\x9d and the\nchildren were at \xe2\x80\x9cvery low risk.\xe2\x80\x9d The assessment concluded that the children were unlikely to be in\ndanger of immediate or serious harm. The Division \xe2\x80\x9cCase Summary for Closing\xe2\x80\x9d submitted by the\ncase manager and supervisor based the decision on the non-compliance of M.W. with Division\nsupervision, noting \xe2\x80\x9cmany attempts to make contact with the children but to no avail.\xe2\x80\x9d The case was\nclosed.\n51\n\n\x0cSo the three young boys who were abused by their mother and abandoned by her in the summer of\n2001 were again abandoned six months later, this time by the State agency that was supposed to\nprotect them. The Division\xe2\x80\x99s next contact was January 4, 2003, following the 9\xe2\x80\x931\xe2\x80\x931 call reporting\ntwo starving and abused boys of three and seven in a cold, dark basement near the yet to be\ndiscovered body of their seven-year-old brother rotting in a plastic bin.\nFollowing the fact finding determination on February 24, 2003, the Division explored relatives of\nthe children for possible placement. When it was reported that no such placement was in the\nchildren\xe2\x80\x99s best interests, Judge Grant directed the Division to pursue formal guardianship of the\nchildren and termination of M.W.\xe2\x80\x99s parental rights. The Division filed its complaint on August 12,\n2005.\nMeanwhile, while still serving her jail sentence on the probation violation, M.W. filed a civil\ncomplaint as guardian ad litem for R.W. and T.H., Jr. against the Division, alleging that the Division\nhad negligently failed to protect her children from abuse while they were in the care of Sherry\nMurphy. As administrix ad prosequendum she asserted claims for F.W.\xe2\x80\x99s estate under the Wrongful\nDeath Act, N.J.S.A. 2A:31-1, the Survivor\xe2\x80\x99s Act, N.J.S.A. 2A:15-3, and for loss of consortium. The\nState answered denying liability and filed a counterclaim against M.W. seeking expenses incurred in\nthe guardianship action commenced by the Division.\nThe civil supervising judge recognized a conflict of interest between M.W. and her sons, and\nappointed a substitute administrix ad prosequendum for the estate of F.W. and separate guardians\nad litem for R.W. and T.H., Jr. They participated in mediation with a retired Superior Court judge,\nand a settlement was reached between the State and on behalf of the children for payment of $3.75\nmillion on behalf of T.H., Jr., $2.75 million on behalf of R.W. and $1 million to the estate of F.W.\nThe settlement contained no condition or provision that would exclude M.W. from inheriting under\nthe intestacy statute. M.W. did not participate in the negotiations, and her claim of loss of\nconsortium was not included in the settlement. The judge dismissed the count of M.W.\xe2\x80\x99s complaint\nseeking relief on her own behalf without prejudice, and he specifically stated that M.W. could re-file\nher claim or claims against the Division in a subsequent action.\nA month after the civil settlement was filed, the Division moved in the guardianship action to\namend its complaint to include a demand for retroactive termination of M.W.\xe2\x80\x99s parental rights to\nF.W. including any right of inheritance. The avowed purpose was to prevent M.W. from receiving\nany portion of the $1 million settlement payable to F.W.\xe2\x80\x99s estate. M.W. opposed the amendment,\narguing: (1) the claim asserted in the proposed amendment lacked merit because there is no\nauthority permitting termination of parental rights for a deceased child; (2) any application with\nrespect to M.W.\xe2\x80\x99s interest in F.W.\xe2\x80\x99s estate was a matter for the Probate Division rather than the\nFamily Division; and (3) the Division was vindictively attempting to shift the blame for the death of\nF.W. to M.W. rather than acknowledging its failures in this case. Following oral argument on April\n17, 2006, Judge Grant ruled in favor of the Division, and the amended complaint seeking\ntermination of M.W.\xe2\x80\x99s rights to F.W. was filed the same day.\nThe guardianship trial began on May 22, 2006, and lasted three days. Psychologist Frank J. Dyer,\nDivision caseworker, Sabrina McNeil, and behavioral therapist, Charles C. Cooper testified for the\nDivision. M.W. did not testify and called no witnesses.\n52\n\n\x0cDr. Dyer testified that in his opinion M.W.\xe2\x80\x99s \xe2\x80\x9ccontact with reality is rather tenuous [she] has a rather\nplastic concept of reality.\xe2\x80\x9d M.W. categorically denied to Dr. Dyer any abusive behavior by her\ntoward any child at any time, even though she pleaded guilty and was sentenced for child\nendangerment relating to her physical abuse of children placed in her care. She also took no\nresponsibility for the Division\xe2\x80\x99s involvement in her life and the life of her children. Dr. Dyer\nconcluded that M.W. suffers from schizophrenia, dysthymic disorder and personality disorders with\nprominent antisocial features. He said that \xe2\x80\x9c[M.W.] is far too unstable emotionally and behaviorally\nto be even remotely capable of providing the kind of consistent nurturance, structure, guidance and\nstimulation, and physical protection that a child requires.\xe2\x80\x9d\nMr. Cooper was qualified as an expert in therapy and behavioral assistance. He testified he saw both\nR.W. and T.H., Jr. in therapy on a regular basis over an extended period of time. He was adamant\nthat the boys should not have any contact with their mother because they connect the abuse they\nsuffered to their mother. He stated that they had a profound fear of M.W. and regressed emotionally\nand psychologically when a photograph of her was shown to them. Cooper explained that both\nchildren had issues with fear and safety, suffered from night tremors, and were terrified even at the\nsight of a bathtub. He testified that a close relationship with foster parents was critical in order for\nthe boys to have any chance of developing a sense of normalcy. He said that any relationship\nbetween the boys and M.W. would be emotionally traumatic and psychologically disruptive to them.\nOn June 8, 2006, Judge Grant gave an oral decision terminating the parental rights of M.W. to R.W.,\nT.H., Jr., and the deceased F.W.\nWe next address the larger issue of M.W.\xe2\x80\x99s right to receive F.W.\xe2\x80\x99s settlement recovery and whether\nany legal or equitable ground precludes her from inheriting F.W.\xe2\x80\x99s estate by intestacy. The civil\naction resulting in the $1 million settlement was based on this State\xe2\x80\x99s Wrongful Death Act, N.J.S.A.\n2A:31-1 to 31\xe2\x80\x936, and Survivor\xe2\x80\x99s Act, N.J.S.A. 2A: 15-3. Actions to recover damages for the\nwrongful killing of a child are wholly statutory since no right existed at common law prior to the\npassage of Lord Campbell\xe2\x80\x99s Act. Johnson v. Dobrosky, 187 N.J. 594, 605, 902 A. 2d 238 (2006); Negron\nv. Llarena, 156 N.J. 296, 308, 716 A.2d 1158 (1998). Under this State\xe2\x80\x99s Wrongful Death Act, recovery\nis limited to pecuniary losses, which in the case of a child, is limited to loss of future financial\ncontributions and loss of companionship and care. Green v. Bittner, 85 N.J. 1, 14-15, 424 A.2d 210\n(1980). Proceeds of a recovery under the Wrongful Death Act are not part of the decedent\xe2\x80\x99s estate.\nThe recovery is for the exclusive benefit of those entitled to take the decedent\xe2\x80\x99s personal property\nby intestacy. Miller v. Estate of Sperling, 166 N.J. 370, 383-84, 766 A.2d 738 (2001); Gershon v. Regency\nDiving Ctr., 368 N.J. Super. 237, 246, 845 A.2d 720 (App. Div. 2004). N.J.S.A. 2A:31-4. In contrast,\nan action under the Survivor\xe2\x80\x99s Act permits recovery of pecuniary and non-pecuniary damages prior\nto death, but, as with the Wrongful Death Act, recovery belongs to the decedent\xe2\x80\x99s estate, which, in\nthe case of a person without a will or a child, passes to those entitled to inherit by intestacy. N.J.S.A.\n2A:15-3.\nMost state statutes prohibit recovery for wrongful death of a child to a parent who abandons or fails\nto support the child by denying the parent the right to bring a wrongful death action or share in\ndamages recovered in such an action. See Emile F. Short, Parent\xe2\x80\x99s Desertion, Abandonment, or Failure to\nSupport Minor Child as Affecting Right or Measure of Recovery for Wrongful Death of Child, 53 A.L.R.3d 566,\n568-69 (1973); see also Allison M. Stemler, Note, Parents Who Abandon or Fail to Support Their Children\nand Apportionment of Wrongful Death Damages, 27 Brandeis . Fam. L. 871 (1989. However, neither the\nNew Jersey Wrongful Death Act nor the Survivor\xe2\x80\x99s Act contain an exception to the distribution\n53\n\n\x0cmandated by the intestacy act. Evidence of mistreatment or abandonment by a parent of a child may\nbear on future financial contributions to the parent or the loss of companionship and advice to the\nparent and thereby affect the damage recovery. N.J.S.A. 2A:31-5. However, actions by a parent\ncontrary to the welfare of the child such as desertion, abandonment, or failure to support do not\npreclude recovery of damages for wrongful death of the child. See In re Rogiers, 396 N.J. Super. 317,\n325, 933 A.2s 971 (App. Div. 2007); In re Estate of Rozet, 207 N.J. Super. 321, 326, 504 A.2d 145\n(LawDiv. 1985). Compare Johnson, supra 187 N.J. at 610-11, 902 A.2d 238 with Green, supra, 85 N.J. at\n12-17, 424 A.2d 210.\nIn the absence of a surviving spouse, domestic partner, or surviving descendents, parents are next in\nline to receive the estate of an intestate child, N.J.S.A. 3B:5-4(b), and siblings inherit only if there are\nno surviving descendents or parents, N.J.S.A. 3B:5\xe2\x80\x944(c). Accordingly, absent any exception or\nexclusion, the intestacy law of this State provides that M.W. is entitled to the entire estate of F.W. to\nthe exclusion of R.W. and T.H., Jr.\nIntestacy statutes provide a will for those who have neglected to make their own or, as in this case,\nare adjudged incompetent. See generally, Ronald J. Scalise, Jr., Honor Thy Father and Mother?: How\nIntestacy Law Goes Too Far in Protecting Parents, 37 Seton Hall L. Rev. 171 (2006). They are a necessary\nresponse to the fact that most Americans die without wills. Id. at 174. The intestacy laws are thought\nto fulfill the presumed intent of decedent and, alternatively, to embody society\xe2\x80\x99s judgment as to how\nthe decedent\xe2\x80\x99s property should devolve. Id. at 173. See also Unif. Probate Code, art. II, pt. 1, gen. smt.\n(1969) (intestate succession \xe2\x80\x9cshould in the main express what the typical intestate would have\nwished had he expressed his desires in the form of a will or otherwise\xe2\x80\x9d). However, case law has held\nthat where there is no will, the distribution of a decedent\xe2\x80\x99s estate must be in accord with the order\nspecified in the intestacy statute even when the decedent expresses a contrary intent. Rozet, supra, 207\nN.J.Super. at 326, 504 A.2d 145; Maxwell v. Maxwell, 122 N.J. Eq. 247, 193 A. 719 (Ch. 1937) next of\nkin take by intestacy is not in pursuance of the testator\xe2\x80\x99s intention, but by force of law, regardless of\nwhat his intentions were).\nFor those dissatisfied with distribution by intestacy, the simple answer is to execute a will. But that\noption is not available to a seven-year-old child. A child is forced to leave property to his or her\nparents even if the parents are unworthy. If we could consider F.W.\xe2\x80\x99s presumed intent to distribute\nhis $1 million estate, he would in all likelihood mirror the fear and anger that his brothers displayed\ntoward M.W. and elect to exclude her from any inheritance in favor of his brothers. However, our\ncase law interprets the language of N.J.S.A. 3B:5--4 to rule out any judicially created exception to\nintestacy distribution based on the wishes of the child, even though the child cannot opt out of the\ndefault distribution of the intestacy statute. Rogiers, supra, 396 N.J.Super. at 325-26, 933 A.2d 971.\nTherefore, the intestacy statute does not preclude M.W. from receiving F.W.\xe2\x80\x99s entire estate in spite\nof any presumed intent of F.W. to the contrary or M.W.\xe2\x80\x99s unworthiness.\nThe exception to the mandated distribution of the intestacy statute is the \xe2\x80\x9cslayer rule,\xe2\x80\x9d codified in\nN.J.S.A. 3:B7-1.1, which states that an intentional killer forfeits all benefits from the decedent\xe2\x80\x99s\nestate, whether inherited by will or intestacy. If the victim dies intestate, the estate passes through as\nif the killer disclaimed his share. The statute codified the common law of this State and the equitable\nprinciple that wrongdoers should not be allowed to profit from wrongdoing. See, e.g., Neiman v. Hurff,\n11 N.J. 55, 93 A.2d 345 (1952); Wasserman v. Schwartz, 364 N.J. Super. 399, 836 A. 2d 828 (Law Div.\n2001); Estate of Wolyniec v. Moe, 94 N.J.Super. 43, 226 A.2d 743 (Ch. Div. 1967); cf. D\xe2\x80\x99Arc v. D\xe2\x80\x99Arc, 175\nN.J.Super. 598, 421 A.2d 602 (App. Div.1980), certif. denied, 85 N.J. 487, 427 A.2d 579, cert. denied, 451\n54\n\n\x0cU.S. 971, 101 S.Ct. 2049, 68 L.Ed. 2d 350 (1981)(husband who tried to have wife murdered held not\nentitled to equitable distribution in divorce action). In this case, however, the slayer rule is\ninapplicable since both the statute and prior case law require an intentional killing, Estate of Artz v.\nArtz, 198 N.J.Super. 585, 487 A.2d 1294 (App. Div. 1985, and M.W. did not kill her son, although\nher cruelty and abandonment ultimately led to his death in Sherry Murphy\xe2\x80\x99s apartment.\nA majority of other states have adopted a statutory exception to the mandatory succession by\nintestacy statutes applicable to children to extinguish the inheritance rights of \xe2\x80\x9cbad parents.\xe2\x80\x9d Scalise,\nsupra, at 193; see, e.g. N.Y. Est. Powers & Trusts, \xc2\xa7 5-1.2(a); Conn. Gen. Stat. Ann. \xc2\xa7 45(a)\xe2\x80\x93436(g);\nN.C. Gen. Stat. \xc2\xa7 31A-2 (1984); and 20 Pa. Cons. Stat. \xc2\xa7 2106(a). Most of these statutes are directed\nto parental abandonment and non-support, although several preclude inheritance by a parent who\nhas been convicted of crimes against the child including physical abuse, sexual abuse, and\nendangering the child\xe2\x80\x99s welfare. See, e.g., 20 Pa. Const. Stat. \xc2\xa72106(a); see also Or. Rev. Stat. \xc2\xa7 112.465\n(2005); Scalise, supra, at 102. Furthermore, both the Restatement of Property and the Uniform\nProbate Code bar inheritance by a parent who has abandoned and refused to support the child.\nRestatement (Third) of Property: Wills & Other Donative Transfers, \xc2\xa7 2.5(5); Unif. Probate Code, \xc2\xa7\n2.114(c), 8 U.L.A. 91 (1998). But New Jersey has no bad parent statute to preclude parental\ninheritance by intestacy, and it has not adopted the applicable sections of the Restatement of\nProperty or the Uniform Probate Code.\nIn Rozet, supra, 207 N.J. Super. At 323, 504 A.2d 145, a Law Division decision, the father, who\nabandoned his daughter six months after her birth and failed to pay any child support, was held\nentitled to collect his intestate share of her estate. Rozet was recently cited with approval by another\npanel in Rogiers, supra, 396 N.J.Super. at 324-25, 933 A.2d 971. In that case the child was severely\nhandicapped from birth as a result of medical malpractice. Her mother pursued the malpractice\nclaim and obtained a substantial recovery that was placed in trust for the daughter. When the child\ndied, her father sought half of the trust balance of over $1 million as his intestate share. The mother\nargued that he did not contribute to the child\xe2\x80\x99s support and therefore did not qualify as her parent\nand should not receive any part of the child\xe2\x80\x99s estate. The court rejected the argument, holding the\nfather was qualified as a parent under the Parentage Act, N.J.S.A. 3B:5-10, and the requisite legal\nrelationship qualified him to inherit as a parent through intestacy. The court further rejected the\nclaim that the New Jersey Probate Code should be read to include the portion of the Uniform\nProbate Code section that prohibits inheritance when the parent supports the child. But the court\nfound the argument was without substance, noting that the Legislature had amended the Probate\nCode twice since Rozet and had not adopted the provision.\nWe must conclude that with the exception of the slayer rule, the intestacy law of this State is blind to\nthe worthiness of a parent inheriting from a deceased child. Accordingly, M.W. has an enforceable\nlegal right to inherit the entire $1 million in F.W.\xe2\x80\x99s estate despite factual findings of cruel and abusive\nconduct toward her son unless her parental rights are terminated in a Title 30 action or there are\nother lawful grounds to interdict her from receiving the inheritance.\nM.W. argues that her parental relationship terminated on the death of F.W. and that therefore no\ncause of action could lawfully exist under Title 30. However, under the decisional law of this State, a\ncourt may exercise equitable powers in unusual circumstances to grant posthumous relief in order to\nprevent an inequity.\nIn re Estate of Santolino, 384 N.J.Super. 567, 895 A.2d 506 (Ch Div. 2005), the issue was whether the\n55\n\n\x0ccourt could annul a marriage after the death of one of the parties to the marriage. There, the eightyone year old decedent suffering from terminal lung cancer married a forty-six year old woman one\nmonth before he died intestate. The decedent\xe2\x80\x99s sister filed a caveat against granting letters of\nadministration, contending that the marriage was a nullity. The widow argued that the validity of the\nmarriage could not be challenged because the decedent\xe2\x80\x99s death terminated the marriage. The court\nheld that under its equitable powers the validity of the marriage could be addressed after the\ndecedent\xe2\x80\x99s death because \xe2\x80\x9c[a] court of equity is empowered to prevent one party from acquiring the\nbenefits of marriage when the marriage itself was somehow illicit.\xe2\x80\x9d Id. at 584, 895 A.2d 506. See also\nCarrv. Carr, 120 N.J. 336, 576A.2d 872 (1990) (holding that when the husband died during the\npendency of a divorce action, the wife may pursue a claim for equitable distribution); Fulton v. Fulton,\n204 N.J.Super 544, 499 A.2d 542 (Ch Div. 1985) (holding that final judgment of divorce could be\nadjudicated after husband\xe2\x80\x99s death based on prior testimony in order to prevent inequity to\ndecedent\xe2\x80\x99s children); Jacobson v. Jacobson, 146 N.J.Super. 491, 370 A.2d 65 (Ch Div. 1976) (after\nhusband charged with wife\xe2\x80\x99s murder, court declined to abate divorce action and substituted wife\xe2\x80\x99s\nestate as a party for purposes of equitable distribution). These cases stand for the proposition that in\nexceptional circumstances a court may apply principles of equity to posthumously grant relief from\nthe plain reading of a statute based on the equitable principle that no one should be allowed to profit\ndirectly or indirectly from his own wrongdoing, a principle described by our Supreme Court as \xe2\x80\x9cso\nessential to the observance of morality and justice [that it] has been universally recognized in the\nbasis of civilized communities for centuries and is as old as equity. Its sentiment is ageless.\xe2\x80\x9d Neiman,\nsupra, 11 N.J. at 60-61, 93 A.2d 345.\nWhile the guardianship statute contemplates a surviving child, N.J.S.A. 30:4C-15(a), there is no\nlimitation on a court\xe2\x80\x99s posthumous application of the statute. See Santolino, supra, 384 N.J.Super.\nat583, 895 A.2d 506(noting that the annulment statute did not express limitation upon its\nposthumous application). We agree with Judge Grant that the unique and extraordinary\ncircumstances of this case are such that the Family Court in the exercise of its equitable powers may\nterminate M.W.\xe2\x80\x99s rights to inherit from F.W. nunc pro tunc. The clear public policy of this State is to\nprotect and preserve the welfare of its children, and, to this end, there is reposed in the Family Court\ninherent equitable authority to fashion appropriate remedies to protect the welfare of children and\nadvance their best interests. In re Adoption of a Child by W.P., 163 N.J. 158, 195, 748 A.2d 515 (2000);\nIn re Guardianship of J.C., 129 N.K. 1, 10, 608 A.2d 1312 (1992).\nHow cruel, ironic, and inequitable it would be to hold that M.W. retained the right to inherit $1\nmillion from the child she burned, abused, neglected, and abandoned. Equity, morality, and\ncommon sense dictate that physically or sexually abusive parents have no right of inheritance by\nintestacy. The contrary result would bespeak a thoughtless jurisprudence warranting public\ndisrespect. The applicable principle of equity is that \xe2\x80\x9cequity will not suffer a wrong without a\nremedy.\xe2\x80\x9d Crane v. Bielski, 15 N.J. 342, 349, 104 A.2d 651 (1954). In these extraordinary\ncircumstances, the inherent equitable powers of the Family Part prevents the unjust enrichment of\nM.W. which would result from the mechanical application of the intestacy statute.\nWe therefore affirm the judgment by Judge Grant and hold that in these extraordinary\ncircumstances the parental rights of M.W., including any residual right of inheritance, were\nterminated pursuant to N.J.S.A. 30:4C-15.1. Concurrently, we hold that equitable principles inherent\nin the Family Court proscribe the recovery or receipt of any portion of F.W.\xe2\x80\x99s estate by M.W.,\nthereby causing her disinheritance, and we impose a constructive trust on F.W.\xe2\x80\x99s estate with the\ndirection that the funds are to be conveyed to F.W.\xe2\x80\x99s brothers as proper recipients under the\n56\n\n\x0cintestacy succession rules.\nAffirmed.\nNotes, Problems, and Questions\n1. In Fleming, the Court ruled that because Thomas died intestate without any legal heirs his estate\nshould escheat to the State of Washington. Why was Thomas\xe2\x80\x99 half-brother prevented from\ninheriting? Did the Court correctly decide that issue?\n2. In Fleming, Thomas was never adopted. He remained in the permanent custody of the Catholic\nCharities of the Diocese of Seattle. Should an exception have been made to permit his mother to\ninherit? Should the estate have been given to the charity instead of the state?\n3. In New Jersey Div., why was the decedent\xe2\x80\x99s mother prevented from inheriting his estate?\n4. In the above-cases, the biological mothers were not permitted to take under the intestacy system.\nThe legal definition of parent varies. Some states have started recognizing an expansive definition of\n\xe2\x80\x9cparent\xe2\x80\x9d for purposes pertaining to custody and child support. These theories of parenthood focus\nupon the benefit that broadly defining \xe2\x80\x9cparenthood\xe2\x80\x9d provides for children. Nevertheless, if courts\nrely upon factors other than biology and adoption to establish the legal parent-child relationship,\nthat may impact the ability of adults to inherit from children. A few of those theories are set-forth\nbelow.\n(1) Psychological Parent- Professor Katharine T. Bartlett is one of the main proponents of the\nrecognition of a psychological parent. According to Professor Bartlett, a psychological\nparent is an adult who assists in the provision of necessities that would typically be supplied\nby a child\xe2\x80\x99s nuclear family. These needs may be physical, emotional and/or social. Professor\nBartlett has suggested the use of a three-part test to identify a potential psychological parent.\nIn order to be recognized as a psychological parent, the adult must satisfy three conditions.\nFirst, the adult must be in physical possession of the child for at least six months prior to\nseeking parental status. Second, when seeking parental status, the adult must be motivated by\na desire to take care of the child and the child must consider the adult to be his or her\nparent. Finally, the adult seeking parental status must prove that his or her relationship with\nthe child was the result of the legal parent\xe2\x80\x99s consent or a court order.\n(2) Functional Parent- The functional parent is similar to the psychological or social parent. The\nfocus is on the actions the person takes after the birth of the child. This theory of parentage\nhas been put forth by Professor Nancy Polikoff. According to Professor Polikoff, in order\nfor a person to be classified as a functional parent, the child\xe2\x80\x99s legally recognized parent must\ncreate a relationship between the child and that person. In addition, the legal parent must\nintend for that relationship to be parental in nature. Finally, the person must maintain a\nfunctional relationship with the child.\n(3) Intentional Parent-The focus is upon the person\xe2\x80\x99s behavior prior to the birth of the child.\nCourts have taken this approach when determining maternity in surrogate cases. The inquiry\nis whether the person acted in such a way to indicate that he or she intended to parent the\n57\n\n\x0cchild. Professor Marjorie Maguire Shultz states that legal parenthood should be determined\nby evaluating the intentions of the parties. Specifically, Professor Shultz opines \xe2\x80\x9cintentions\nthat are voluntarily chosen, deliberate, express and bargained for ought to determine legal\nparenthood.\xe2\x80\x9d\n(4) De Facto Parent- Professor Charles P. Kindregan, Jr. advocates legally recognizing a de facto\nparent. This approach has been championed by the drafters of the ALI Principles of the Law\nof Family Dissolution. Pursuant to that document, a de facto parent must satisfy the\nfollowing conditions: (1) live with the child for two years or more; (2) have non-financial\nmotives; (3) present evidence of an agreement by a legal parent or evidence of a complete\nlack of caretaking function by the legal parent; and (4) perform caretaking duties on a regular\nbasis at least on par with the duties performed by the parent serving as the child\xe2\x80\x99s primary\ncaretaker.\n5. What impact could the recognition of several classes of parents have on the intestacy system?\n6. In deciding whether or not to recognize a parent-child relationship based upon something other\nthan biology, what factors should the courts consider?\n7. Should the parental theories discussed above be implemented into the current intestacy statutory\nregime or should courts be given the flexibility to apply the doctrines on a case by case basis? What\nare the pros and cons of each approach?\n8. The purpose of the intestacy system is to carry out the presumed intent of the testator. Will that\npurpose be better carried out if the courts recognize different types of legal parent-child\nrelationships?\n2.5.2\n\nOther Ancestors and Collaterals\n\nIf an intestate decedent is not survived by children or parents, it is logical that the estate\nwould go to the decedent\xe2\x80\x99s grandparents. However, the intestacy system does not operate in that\nmanner. In cases where there are no surviving descendants or parents, the decedent\xe2\x80\x99s estate goes to\nhis or her collateral kindred. There are two set of collaterals\xe2\x80\x94first line and second line. First line\ncollaterals include the decedent\xe2\x80\x99s siblings4 who take if he or she is not survived by children or\nparents. The decedent\xe2\x80\x99s nieces and nephews step into the shoes of any siblings who predecease the\ndecedent. The decedent\xe2\x80\x99s aunts and uncles are referred to as second line collaterals. The second line\ncollaterals may take if the decedent is not survived by first line collaterals.\nExample:\nWillis never married or fathered children. His parents predeceased him. Willis had three sisters,\nBeverly, Cissy, and Whitney and one brother, Theo. Cissy predeceased Willis leaving behind two\nsons, Vance and Donovan. Willis died intestate survived by Beverly, Whitney, Theo, Vance and\nDonovan.\nMost jurisdictions have followed the UPC\xe2\x80\x99s approach and treat half-siblings the same as whole sibling. (UPC \xc2\xa7 2-107\n\xe2\x80\x9cRelatives of the half-blood inherit the same share they would inherit if they were of the whole blood.\xe2\x80\x9d\n4\n\n58\n\n\x0cExplanation:\nWillis estate will be divided into four parts. The intestate distribution of the estate will be as follows:\nBeverly (1/4), Whitney (1/4) and Theo (1/4). Cissy\xe2\x80\x99s one-fourth will be divided between her two\nsons, Vance and Donovan who will each get 1/8 of Willis\xe2\x80\x99 estate.\nIf the decedent dies intestate without leaving children, parents, or first-line collaterals, the\ncourt must determine who should take. The court\xe2\x80\x99s decision will depend on the approach that has\nbeen adopted by the legislature. Courts typically have two options to apply\xe2\x80\x94the parentelic system or\nthe degree-of-relationship system. The parentelic scheme authorizes the probate court to start at the\ndecedent\xe2\x80\x99s grandparents and go down the line to find an heir. Under that system the options are\ngrandparents and their descendants, great-grandparents and their descendants, great-great\ngrandparents and their descendant\xe2\x80\x99s etc. The degree-of-relationship approach requires the court to\ndistribute the decedent\xe2\x80\x99s estate to the surviving relative that is the closest kin. For example, a first\ncousin would take before a fifth cousin. Finding the next of kin who is not a first line collateral can\nbe complicated.\n\nIn re Wolbert\xe2\x80\x99s Estate, 135 A.2d 533 (N.J. Super. Ct. App. Div. 1957)\nCLAPP, S.J.A.D.\nThe question brought before the court by this appeal is whether under the descent and distribution\nstatute a first cousin of Josephine Wolbert, the intestate, and issue of deceased first cousins, all\ndescendants of Miss Wolbert\xe2\x80\x99s grandparents, take her intestate property to the exclusion of Mrs.\nMarie E. W. Spratt, a second cousin who is a descendant, not of Miss Wolbert\xe2\x80\x99s grandparents, but of\nher great grandparents. The Atlantic County Court, Probate Division, Judge Naame sitting, held they\ntake to the exclusion of Mrs. Spratt, and the latter appeals. The question was raised in a proceeding\nbrought by Mrs. Spratt in the County Court to set aside letters of administration granted by the\nsurrogate as to the estate of Miss Wolbert.\nJosephine Wolbert died intestate on November 3, 1956, a resident of Atlantic City, leaving neither\nspouse, nor issue, nor parent, nor any brother or sister or issue of brother or sister. Her closest next\nof kin was a first cousin, J. Walter Steel, related to her in the fourth degree. She also left surviving\nthree children of a deceased first cousin, Francis P. Steel, Amanda Fell Steel and Alfred Steel. These\nfour persons are issue of an uncle, a brother of the intestate\xe2\x80\x99s mother. Furthermore, Miss Wolbert\nwas survived by Gretchen Wolbert and Priscilla Alden Riesenberg, issue of deceased first cousins\nwho were themselves children of another uncle of Miss Wolbert, a brother of her father.\nThe Atlantic County Surrogate\xe2\x80\x99s Court issued letters of administration to Alfred Steel, upon the\npresentation to the court of renunciations from J. Walter Steel, Francis P. Steel and Amanda Fell\nSteel, containing a request that letters be issued to him. Mrs. Spratt then brought a proceeding in the\nCounty Court, Probate Division, N.J.S. 3A:2-3, N.J.S.A., R.R. 5:3-4(a), to set aside these letters on\nthe ground that she is one of the next of kin and had never been given notice of Alfred Steel\xe2\x80\x99s\napplication for administration. The right to administration belongs to the spouse and next of kin if\nthey or any of them will accept the same. N.J.S. 3A: 6-4, N.J.S.A. Further, see R.R. 4:99-3, made\napplicable to the Surrogate\xe2\x80\x99s Court by R.R. 5:4-1. In the course of the proceeding before the County\nCourt, Gretchen Wolbert and Priscilla Alden Riesenberg approved the issuance of the letters to\n59\n\n\x0cAlfred Steel.\nThere is no merit whatever in Mrs. Spratt\xe2\x80\x99s claim that she is one of the next of kin. The point is\ndisposed of by that sentence of N.J.S. 3A:4-5, N.J.S.A., which we have italicized below:\n\xe2\x80\x98If there be no husband or widow, child or any legal representative of a child, nor a\nparent, brother or sister, nor a legal representative of any brother or sister, then the\nintestate\xe2\x80\x99s property, real and personal, shall descend and be distributed equally to\nthe next of kindred, in equal degree, of or unto the intestate and their legal\nrepresentatives. Representatives of ancestors nearest in degree to the decedent shall take to the\nexclusion of representatives of ancestors more remote in degree.\xe2\x80\x99\nThe italicized clause in the statute provides in effect that where neither spouse, issue, parent, brother\nor sister or issue of brother or sister survive, then descendants of a grandfather-in this case a first\ncousin and, Per stirpes, issue of deceased first cousins, paternal and maternal, In re Allen\xe2\x80\x99s Estate, 23\nN.J. Super. 229, 92 A.2d 857 (Ch Div. 1952), In re Miller\xe2\x80\x99s Estate, 103 N.J. Eq. 86, 141 A. 676 (Prerog.\n1928), affirmed 104 N.J.Eq. 491, 146 A. 915 (E. & A. 1929) take to the exclusion of other\ndescendants of a great grandfather, such as Mrs. Spratt. As stated in the Foreword to Title 3A, p. xi,\n\xe2\x80\x98this seems just. A person is more apt to know and therefore to want to provide for the lines of\ndescent closer to him.\xe2\x80\x99\nThe aim of this clause may be made more apparent if we observe the state of the law as to the\ndistribution of personal property, as it stood before this statute. Under the rule obtaining then, if an\nintestate should leave him surviving a great uncle as his next of kin nearest in degree, call him A, and\nif he also leaves cousins who are issue of deceased great uncles (they would be descendants of the\nintestate\xe2\x80\x99s great grandparents) and furthermore leaves cousins who are issue of deceased first\ncousins (they would be descendants of the intestate\xe2\x80\x99s grandparents), all the descendants of the great\ngrandparents would take per stirpes to the exclusion of all the descendants of the grandparents. See\nSmith v. McDonald, 71 N.J.Eq. 261, 266, 65 A. 840 (E. & A. 1907) (7 N.J.Prac. 290, 291), cf. In re\nFisher\xe2\x80\x99s Estate, 17 N.J.Super. 207, 85 A.2d 562 (Cty. Ct. 1952), holding that distribution is made to\nthe living kinsman nearest in degree, viz. A, a great uncle of the fourth degree, and \xe2\x80\x98the\nrepresentatives of those dead, who, if living, would answer the same description,\xe2\x80\x99 that is (in the\nsupposititious case) the representatives of deceased Great uncles. The cited statute rejected this\nadmittedly \xe2\x80\x98fortuitous\xe2\x80\x99 (74 N.J.Eq., at page 268, 65 A. at page 842) rule. It adopted instead what has\nbeen called the parentelic system, a system that obtained under the English law of descent. Bordwell,\n\xe2\x80\x98Law of Succession,\xe2\x80\x99 8 Rutgers L. Rev. 164 (1953); 2 Pollock and Maitland, History of English Law\n(2d ed. 1923), 295-297; 3 Holdsworth, History of English Law, (2d ed.) 143-145; Smith v. Gaines, 36\nN.J.Eq. 297, 299 (E. & A. 1882); Smith v. McDonald, 71 N.J.Eq. 261, 267, 65 A. 840 (E. & A. 1907).\nContrast the parentelic system obtaining under 6 Mass. Laws Annot., c. 190, s 3(6) (1955) (citations\nomitted).\nMrs. Spratt was therefore not one of the next of kin of Miss Wolbert. That being so, she did not\neven have the standing to institute the proceeding in the County Court. For, under R.R. 5:3-4(a),\nonly a \xe2\x80\x98person aggrieved\xe2\x80\x99 may review a judgment of the Surrogate\xe2\x80\x99s Court. A person is not aggrieved\nby a judgment unless his personal or pecuniary interests or property rights have been injuriously\naffected thereby. In re Lent, 142 N.J.Eq. 21, 22, 59 A.2d 7 (E. & A. 1948). It follows that Mrs. Spratt\nwas not aggrieved by the Surrogate\xe2\x80\x99s Court judgment here.\n60\n\n\x0cAppeal dismissed, with costs to respondents.\n2.5.3\n\nLaughing Heirs\n\nLaughing heirs are relatives that are so remote from the decedent that they may laugh if they\ndiscovered that he or she died. These persons take if the decedent dies without surviving spouse,\nchildren, parents, siblings, nieces, nephews, aunts, uncles, grandparents etc. The problem with\nremote heirs is that it takes a lot of time and resources to discover and locate them. As I have\npreviously stated, the primary objective of the intestacy system is to carry out the decedent\xe2\x80\x99s\npresumed intent. Because that is the goal it probably does not make sense for the court to track\ndown distant relatives with whom the decedent did not have any type of relationship. Section 2103(4) of the Uniform Probate Code sought to eliminate the remote heir problem by limiting\ninheritance to descendants of the decedent, parents and their descendants, and grandparents and\ncollateral relatives descended from grandparents. The majority of jurisdictions have adopted this\napproach.\n2.5.4\n\nEscheat\n\nUniform Probate Code \xc2\xa7 2-105 No Taker.\nIf there is no taker under the provisions of this Article, the intestate estate passes to the [state].\nOnce the decedent\xe2\x80\x99s blood line runs out, his or her estate goes to the state if he or she dies\nintestate. Very few estates escheat to the state because people tend to keep an eye on relatives who\nhave money and/or property. Another reason why the state seldom gets the estate is that the\nInternet is full of companies that specialize in locating missing heirs. The companies will locate\nmissing heirs in exchange for a percentage of the estate.\n2.5.6\n\nAdvancements\n\nThe intestacy system is meant to distribute property that the decedent did not dispense in a\nvalidly executed will. The advancement doctrine comes into play when the decedent gives an heir\nproperty prior to his or her death. The advancements doctrine is based on the theory that a parent\nintends to treat all of his or children in the same way. Thus, if a parent gave a child a significant\nlifetime gift of real or personal property, the common law imposed a presumption that the parent\nintended an advancement. The child who received the gift had the burden of overcoming the\npresumption in order to avoid having the gift counted against his or her share of the estate. The\ncommon law doctrine of advancements still exists, but it has been codified. Under most of the\ncurrent statutes, the court presumes that the lifetime gift was not mean to be an advancement. Some\nstates have followed the Uniform Probate approach requiring some type of writing indicating that an\nadvancement was intended.\n\n61\n\n\x0cTankesley v. Thompson, 469 S.E.2d 853 (Ga. App. Ct. 1996)\nPOPE, Presiding Judge.\nRichard Tankesley, Robert Tankesley, William Tankesley and John Tankesley are the adult sons of\nStella Lee Kays, who died intestate on July 24, 1992. During the administration of Kays\xe2\x80\x99 estate,\nRichard and the court-appointed administrator, Mary Thompson, asserted that Kays had advanced\napproximately $70,000 to Robert during the last two years of her life. Robert denied this assertion.\nAfter extensive discovery and several hearings on the matter, the probate court ruled that the\n$70,000 disbursed to Robert was not an advancement, but rather constituted loans or investments\nmade to Robert and/or businesses he had started-primarily Southern Broasted Foods, Inc. (SBF).\nConcluding that the probate court did not err in reaching its determination, we affirm.\n\xe2\x80\x9cAn advancement is any provision made by a parent out of his estate, for and accepted by a child,\neither in money or property, during the parent\xe2\x80\x99s lifetime, over and above the obligation of the parent\nfor maintenance and education.\xe2\x80\x9d OCGA \xc2\xa7 53-4-50(a). In this state, when a parent dies intestate, a\nsubstantial gift of money or property from the parent to his or her child during the parent\xe2\x80\x99s lifetime\nis ordinarily presumed to be an advancement. See Bowen v. Holland, 184 Ga. 718, 720(1), 193 S.E. 233\n(1937); Neal v. Neal, 153 Ga. 44, 45(3), 111 S.E. 387 (1922). This presumption, however, is rebuttable\nId. The relevant inquiry in cases such as this is the decedent\xe2\x80\x99s intent at the time of the transactions in\nquestion. Berry v. Berry, 208 Ga. 285, 289(2), 290, 66 S.E.2d 336 (1951). The determination as to the\ndecedent\xe2\x80\x99s intent is to be made by the finder of fact-either the jury, or a judge in a case tried without\na jury. See Smith v. Varner, 130 Ga. App. 484, 203 S.E.2d 717 (1973).\nIn the instant case, all of the money in question was disbursed in the form of numerous checks\nwritten by Kays. All of the checks except one were either payable to SBF or named SBF or another\nbusiness entity in the memo portion thereof. Many of the checks also included the notation\n\xe2\x80\x9cinvestment\xe2\x80\x9d or \xe2\x80\x9cloan.\xe2\x80\x9d Robert testified by affidavit that at the time Kays wrote each check, she\nindicated that the money was an investment. Robert further testified that at various times during her\nlife, Kays expressed her intent that at the time of her death her estate should be divided equally\nbetween her four children, regardless of any gifts she previously may have given to any particular\nchild. The affidavits of William and John corroborate that this was Kays\xe2\x80\x99 intent, as do the various\nwills, though not valid, that Kays executed during her life. Additionally, Kays\xe2\x80\x99 attorney testified by\naffidavit that as far as he was aware, \xe2\x80\x9cat the time of her death, [Kays] contemplated that her estate,\nas it existed at the time of her death, would be divided equally between her four sons,\nnotwithstanding any gifts she may have made to them during her lifetime.\xe2\x80\x9d The record also shows\nthat Kays was a shrewd business woman who often invested in other businesses, and there is some\nevidence that she expected a return on her investment in SBF.\nBased on the above evidence, we hold that the probate court, as the sole factfinder and judge of\nwitness credibility in this case, did not err in concluding that Robert had met his burden of rebutting\nthe presumption that the disbursements constituted advancements. The probate court was\nauthorized to conclude that Robert had demonstrated with clear and satisfactory evidence that Kays\xe2\x80\x99\nintent when she made the disbursements was that they be treated as loans or investments rather than\nadvancements. Accordingly, we affirm the probate court\xe2\x80\x99s ruling.\nJudgment affirmed.\n62\n\n\x0cUniform Probate Code \xc2\xa7 2-109\n(a) If an individual dies intestate as to all or a portion of his [or her] estate, property the decedent\ngave during the decedent\xe2\x80\x99s lifetime to an individual who, at the decedent\xe2\x80\x99s death, is an heir is treated\nas an advancement against the heir\xe2\x80\x99s intestate share only if (i) the decedent declared in a\ncontemporaneous writing or the heir acknowledged in writing that the gift is an advancement or (ii)\nthe decedent\xe2\x80\x99s contemporaneous writing or the heir\xe2\x80\x99s written acknowledgment otherwise indicates\nthat the gift is to be taken into account in computing the division and distribution of the decedent\xe2\x80\x99s\nintestate estate.\n(b) For purpose of subsection (a), property advanced is valued as of the time the heir came into\npossession or enjoyment of the property or as of the time of the decedent\xe2\x80\x99s death, whichever first\noccurs.\n(c) If the recipient of the property fails to survive the decedent, the property is not taken into\naccount in computing the division and distribution of the decedent\xe2\x80\x99s intestate estate, unless the\ndecedent\xe2\x80\x99s contemporaneous writing provides otherwise.\nIf the court concludes that an advancement was intended, it relies upon the hotchpot\nmethod in order to determine the amount of the estate to distribute to the child who received the\nprepayment. The hotchpot method comes from the common law, but it has been codified.\n\nVa. Code Ann. \xc2\xa7 64.206. Advancements brought into hotchpot\nWhen the descendant of a decedent receives any property as an advancement from the decedent\nduring the decedent\xe2\x80\x99s lifetime or under the decedent\xe2\x80\x99s will, and the descendant, or any descendant of\nhis, is also to receive a distribution of any portion of the decedent\xe2\x80\x99s intestate estate, real or personal,\nthe advancement shall be brought into hotchpot with the intestate estate and the descendant is\nentitled to his proper portion of the entire intestate estate, including such advancement.\n2.5.7\n\nComputation of Shares-Hotchpot Method.\n\nExample:\nZeda died intestate, survived by her four children, Denise, Jana, Melanie and Robert. Zeda\xe2\x80\x99s probate\nestate was worth $200,000. While she was living, Zeda gave $50,000 to Denise and $10,000 to\nMelanie. Zeda left a written instrument declaring that she intended the gifts to Denise and Melanie\nto be treated as advancements.\nExplanation:\nThe first step in the hotchpot method is to add the value of the advancements to the value of Zeda\xe2\x80\x99s\nprobate estate. This combined figure is called the hotchpot estate.\n\n63\n\n\x0cIn this case, Zeda\xe2\x80\x99s hotchpot estate preliminarily comes to $260,000 ($200,000 + $50,000 +\n$10,000). The $260,000 is divided equally among Denise, Jana, Melanie and Robert, so they are each\nentitled to $65,000. Jana and Robert each get $65,000 from the probate estate. $70,000 remains in\nthe probate estate to be divided between Denise and Melanie. Denise has already received $50,000,\nso she receives $15,000 from the probate estate. The remaining $55,000 in the probate estate goes to\nMelanie who had already received $10,000.\nProblems and Questions\n1. Would the outcome of the Tankesley case have been the same in a UPC jurisdiction?\n2. During his lifetime, Barry advanced $20,000 to his son, Alex. Barry died intestate, leaving a\nprobate estate of $100,000. Barry was survived by his daughter, Kellie, and by Alex\xe2\x80\x99s child, Judy.\nHow should Barry\xe2\x80\x99s estate be distributed in a UPC jurisdiction?\n3. Jean had five children, Phillip, Mona, Tommy, Suzanna, and Rita. During her lifetime, Jean did the\nfollowing: (1) paid $120,000 for Mona to attend graduate school; (2) gave Suzanna $50,000 to pay\nmedical bills; (3) loaned Rita $27,000 to make a down payment on a condo; and (4) gave Tommy\n$10,000 to take a trip to Europe. While she was sick, Phillip stole $30,000 from Jean\xe2\x80\x99s bank account.\nJean died intestate survived by her five children. Jean\xe2\x80\x99s estate was worth $500,000. Jean left a note\nstating that she loved all of her children equally. She told her friend that she was not executing a will\nbecause the lawyer told her that her children would split her estate. Which, if any, lifetime gift\nshould be considered to be an advancement? How should Jean\xe2\x80\x99s estate be distributed if no\nadvancements exists? If advancements exist?\n\n64\n\n\x0cChapter Three: Intestacy System (Surviving Spouse)\n3.1\n\nIntroduction\n\nWhen a person dies intestate, the surviving spouse is entitled to a share of the community\nproperty5 belonging to the decedent and a share of the decedent\xe2\x80\x99s separate property.6 The law of\nintestacy varies from state to state. Therefore the portion of the decedent\xe2\x80\x99s estate that goes to the\nsurviving spouse may be different.7 For the sake of uniformity, I have included the Uniform Probate\nSection that deals with the inheritance of the surviving spouse. The UPC increases the share that the\nsurviving spouse takes. Instead of including the spouse in Chapter Two, I chose to discuss the rights\nof the surviving spouse in a separate chapter. I selected that approach because I wanted to\nemphasize that the spouse is not like other heirs of the decedent. For example, a decedent can easily\ndisinherit his or her child, but it may be difficult for that person to prevent his or her spouse from\ntaking a portion of the estate.8 It is also important to note that the spouse gets the first opportunity\nto take from the estate.9 The spouse has several options. If the decedent leaves a validly executed\nwill, the spouse can choose to receive his or her portion under the will. However, if the spouse is\nnot satisfied with the terms of the will or if the spouse is intentionally omitted from the will, the\nspouse can renounce the will and take his or her elective share.10 Some jurisdictions still recognize\ndower11 and cutesy,12 so the surviving spouse can decide to exercise those rights.\n\nStates that have a community property system include Arizona, California, Idaho, Louisiana, Nevada, New Mexico,\nTexas, Washington and Wisconsin. Community property refers to money that is earned and property that is bought\nduring the marriage. In Idaho, Louisiana and Texas, income from separate property is community property. The\nspouses own community property in undivided, equal shares. Either spouse may dispose of his or her half of the\ncommunity property at death; the other half belonging to the surviving spouse.\n6\nSeparate property refers to property that belongs exclusively to one spouse or the other.\n7\nMongold v. Mayle, 452 S.E.2d 444, 447 (W. Va. 1994)(\xe2\x80\x9c[t]he purpose behind the elective-share provision \xe2\x80\xa6\xe2\x80\xa6\xe2\x80\xa6is to\nprevent spousal disinheritance in order to ensure that the surviving spouse\'s contribution to the acquisition of property\nduring the marriage is recognized and in order to ensure that the surviving spouse has continuing financial support after\nthe death of his or her spouse.\xe2\x80\x9d)\n8 This can be changed by the execution of a valid pre-nuptial agreement. Those types of arrangements are discussed in\nfamily law and property law courses. Thus, the information in this chapter assumes that a relevant pre-nuptial agreement\ndoes not exist.\n9\nEstate usually refers to a person\xe2\x80\x99s probate estate. However, some jurisdictions have permitted the surviving spouse\xe2\x80\x99s\nelective share to apply to the testator\xe2\x80\x99s nonprobate property. See Newman v. Dore, 9 N.E.2d 966 (N.Y. 1937); Dreher v.\nDreher, 634 S.E.2d 646 (S.C. 2006).\n10\nIn the majority of jurisdictions, elective share has replaced dower and curtesy rights. See, e.g., 20 Pa. C.S.A. \xc2\xa7 2105\n(West 2016). UPC \xc2\xa7 2-213 permits a surviving spouse to waive his or her elective share in writing.\n11\nDower was a common law doctrine that granted a widow a life estate in one-third of all land in which her deceased\nhusband had been seised during their marriage and that was inheritable by the descendants of husband and wife. The\nright of dower attaches the moment the man obtains title to land or upon marriage, whichever is later. Dower stays\ninchoate until the man dies. After his death, the woman\xe2\x80\x99s dower becomes possessory. During the man\xe2\x80\x99s lifetime, once\ndower attaches, he cannot sell the land free and clear of the wife\xe2\x80\x99s dower interest. Even a bona fide purchaser cannot cut\noff the wife\xe2\x80\x99s dower without her consent. See R.C. \xc2\xa7 21.03.02 (West 2016)(Ohio); M.C.L.A. \xc2\xa7 558.1 (West 2016).\n12\nAt common law, a man was given a support interest in his wife\xe2\x80\x99s land referred to as curtesy. Curtesy was similar to\ndower, but it contained the following differences: (1) the man did not obtain curtesy if no children were born during the\nmarriage, and (2) the man\xe2\x80\x99s interest in his deceased wife\xe2\x80\x99s property was a life estate in the land instead of the one-third\ninterest reserved for surviving wives. In a few states curtesy still exists, but it is pretty much gender-neutral as is dower.\nSee A.C.A. \xc2\xa7 28-11-301(b)(West 2016)(Arkansas); K.R.S \xc2\xa7 392.02 (West 2016)(Kentucky).\n5\n\n65\n\n\x0cUniform Probate Code \xc2\xa7 2-102. Share of Spouse.\nThe intestate share of a decedent\xe2\x80\x99s surviving spouse is:\n(1) the entire intestate estate if:\n(i) no descendant or parent of the decedent survives the decedent; or\n(ii) all of the decedent\xe2\x80\x99s surviving descendants are also descendants of the surviving spouse\nand there is no other descendant of the surviving spouse who survives the decedent;\n(2) the first [$200,000], plus three-fourths of any balance of the intestate estate, if no descendant of\nthe decedent survives the decedent, but a parent of the decedent survives the decedent;\n(3) the first [$150,000], plus one-half of any balance of the intestate estate, if all of the decedent\xe2\x80\x99s\nsurviving descendants are also descendants of the surviving spouse and the surviving spouse has one\nor more surviving descendants who are not descendants of the decedent;\n(4) the first [$100,000], plus one-half of any balance of the intestate estate if one or more of the\ndecedent\xe2\x80\x99s surviving descendants are not descendants of the surviving spouse.\nProblems\n1. Loretta was married for twelve years to Milton. Loretta and Milton had two children together,\nMaggie and Rod. After Loretta divorced Milton, she married Frank. Loretta and Frank had three\nchildren together, Tabitha, Jennifer and Reba. Frank also had a child, Casper, from his prior\nmarriage. Loretta died survived by Frank, Loretta, Milton, Tabitha, Jennifer and Reba. Loretta left an\nestate worth $650,000. Under the UPC, what portion of Loretta\xe2\x80\x99s estate does Frank get?\n2. Woodrow was married to Paige. Woodrow and Paige did not have any children together. Paige\nhad one child, Bessie from a previous relationship. Woodrow had five children, George, Andrew,\nJohn, Quincy, and Franklin, from his prior marriage. All five of Woodrow\xe2\x80\x99s children and his parents\npredeceased him. Woodrow died intestate survived by two grandchildren, Ronald and Bryon, Bessie\nand Paige. Woodrow\xe2\x80\x99s probate estate was worth $950,000. Under the UPC, what portion of\nWoodrow\xe2\x80\x99s estate does Paige get?\n3. Bennett was married to Pauline. Bennett and Pauline had six children, Clara, Bella, Steve, London,\nMichael, and Cody. All six of Bennett\xe2\x80\x99s children predeceased him. Bennett died intestate survived by\nPauline and his mother, Elizabeth. Bennett\xe2\x80\x99s probate estate was worth $500,000. Under the UPC,\nwhat portion of Bennett\xe2\x80\x99s estate does Pauline get?\n4. Sandra was married to Rosie. Sandra and Rosie adopted two children, Oliver and Grey. Sandra\nhad two children, Nina and Simon, from a prior relationship. Rosie had two children, Bruce and\nShelia, from her previous marriage. Sandra died intestate survived by Rosie, Oliver, Grey, Nina, and\nSimon\xe2\x80\x99s daughter, April. She was also survived by Rosie\xe2\x80\x99s two children Bruce and Shelia. Sandra\xe2\x80\x99s\nprobate estate was worth $435,000. Under the UPC, what portion of Sandra\xe2\x80\x99s estate goes to Rosie?\n66\n\n\x0c5. In America, there are variations of two marital property systems, separate property and\ncommunity property. The primary difference between the schemes is that, in a separate property\njurisdiction, the spouses own separately all property each obtains; in a community property state, the\nspouses own all property acquired from earnings after marriage in equal, undivided shares. See In re\nMarriage of Brandes, 192 Cal. Rptr. 3d 1, 9 (Cal. App. 4th 2015).\nThe two main legal issues that impact the surviving spouse\xe2\x80\x99s ability to inherit are (1) whether\nor not the person is a spouse and (2) whether or not the person survived the intestate decedent.\n3.2\n\nDefinition of Spouse\n\nTraditionally, \xe2\x80\x9cspouse\xe2\x80\x9d referred to a person who is married to a member of the opposite sex.\nIn cases where a man who is legally married to a woman or a woman who is legally married to a man\ndies intestate, it is easy to determine the person that has the right to take a spouse\xe2\x80\x99s share.\nNonetheless, the definition of spouse has evolved. Consequently, legislatures and courts have\ninterpreted the term broadly. In this section, I examine factors that may influence a person\xe2\x80\x99s ability\nto be legally identified as a spouse.\n3.2.1\n\nPutative Spouse\n\nThe putative spouse doctrine was designed to protect a person who may have been tricked\ninto a marriage. For example, a woman may marry a man without knowing that he is already legally\nmarried to someone else. If that woman enters the marriage in good faith and functions as a wife, is\nit fair for the law to deny her the advantages of marriage? The woman is given the benefit of the\ndoubt because the law presumes that she would not have married the man had she known that he\nalready had a wife. Thus, if the woman learns of the other wife and remains in the marriage, she\nloses her status as a putative spouse. The loss of that identity deprives the woman of the ability to\nreceive any type of spousal support, including an intestate portion of the man\xe2\x80\x99s estate.\n\nM.S.A. \xc2\xa7 518.055 Putative Spouse (Minnesota)\nAny person who has cohabited with another to whom the person is not legally married in the good\nfaith belief that the person was married to the other is a putative spouse until knowledge of the fact\nthat the person is not legally married terminates the status and prevents acquisition of further rights.\nA putative spouse acquires the rights conferred upon a legal spouse, including the right to\nmaintenance following termination of the status, whether or not the marriage is prohibited or\ndeclared a nullity. If there is a legal spouse or other putative spouses, rights acquired by a putative\nspouse do not supersede the rights of the legal spouse or those acquired by other putative spouses,\nbut the court shall apportion property, maintenance, and support rights among the claimants as\nappropriate in the circumstances and in the interests of justice.\n\n67\n\n\x0cEstate of Leslie, 689 P.2d 133 (Cal. 1984)\nBIRD, Chief Justice.\nIs a surviving putative spouse entitled to succeed to a share of his or her decedent\xe2\x80\x99s separate\nproperty under the Probate Code?\nI.\nOn April 22, 1972, William Garvin and Fay Reah Leslie were married in Tijuana, Mexico. The\nmarriage was invalid because it was never recorded as required by Mexican law. However, Garvin\nbelieved that he and Leslie were validly married. The couple lived together as husband and wife for\nalmost nine years, until Leslie\xe2\x80\x99s death in 1981. Throughout this period, they resided in a house in\nMira Loma. The house had been purchased by Leslie, Mike Bosnich, her former husband, and\nrespondent Alton B. Smith, a son from a prior marriage who lived next door. This case concerns the\nadministration and distribution of Leslie\xe2\x80\x99s estate.\nDuring Leslie\xe2\x80\x99s and Garvin\xe2\x80\x99s marriage, restaurant property, which had been acquired by Leslie prior\nto the marriage, was remodeled. As a result, it increased in value. There is conflicting testimony\nconcerning the source of funds and labor used for this remodeling. Garvin testified that the\nimprovements were paid for with \xe2\x80\x9ccommunity funds\xe2\x80\x9d and that he and Leslie did most of the\nremodeling. Smith testified that (1) the money used to remodel the restaurant came from his\nmother\xe2\x80\x99s separate funds, (2) he and his brother performed most of the work, and (3) Garvin\xe2\x80\x99s work\non the remodeling was minimal. After the improvements were made, Leslie sold the restaurant and\nreceived a promissory note secured by a deed of trust in her name.\nDuring the marriage, Leslie and Garvin acquired three parcels of real property in the Desert Hot\nSprings area. The manner in which title was taken varied for each parcel. The first two parcels were\npurchased in 1977. Title to Parcel 1 was taken in joint tenancy by \xe2\x80\x9cFay Bosnich, an unmarried\nwoman, and William A. Garvin, an unmarried man.\xe2\x80\x9d Title to Parcel 2 was taken in the name of \xe2\x80\x9cFay\nBosnich, an unmarried woman.\xe2\x80\x9d Parcel 3 was purchased approximately 16 months later, and title to\nit was taken as a tenancy in common by \xe2\x80\x9cFay Bosnich, an unmarried woman, and William Garvin, a\nwidower.\xe2\x80\x9d\nGarvin and Leslie also purchased furniture during their marriage. There is conflicting testimony\nregarding which pieces of furniture they acquired together. Smith testified that with the exception of\ntwo end tables purchased by his mother and Garvin, the furniture in the Mira Loma residence had\nbeen acquired either during the 15 years that Smith and his mother lived together or during his\nmother\xe2\x80\x99s former marriage. Garvin testified that he and Leslie together purchased 50 percent of the\nfurniture in the residence.\nDuring the marriage, a trustee bank account was established for Leslie\xe2\x80\x99s granddaughter, Deborah E.\nHoskins, with Leslie named as trustee. Leslie deposited the payments she received from the sale of\nher restaurant property into this account. Garvin testified that $1,000 of \xe2\x80\x9ccommunity funds\xe2\x80\x9d were\nalso deposited into this account. He also testified that Leslie withdrew money from the account and\nplaced that money into the couple\xe2\x80\x99s common funds.\n\n68\n\n\x0cOn February 6, 1981, Leslie died intestate. She was survived by Garvin, her son Smith, and three\nother adult children from a prior marriage.\nSmith filed a petition for letters of administration in the estate of his deceased mother. Garvin\nobjected to Smith\xe2\x80\x99s petition, filed his own petition for letters of administration, and sought a\ndetermination as to who was entitled to distribution of the estate.\nSmith requested to be appointed special administrator to take possession of the estate and to\npreserve it until an administrator could be appointed. (See Prob. Code \xc2\xa7 460). The superior court\ngranted that request.\nIn January 1982, a court trial was held to determine the appointment of the administrator and the\ndistribution of the property in the estate. The trial court found that a putative marriage had existed\nbetween Garvin and Leslie, denied Garvin\xe2\x80\x99s petition for letters of administration, and determined\nthat he was not entitled to any of decedent\xe2\x80\x99s separate property. The court also found that some of\nthe property was quasi-marital and some was separate.\nSpecifically, the trial court found that three bank accounts, the two end tables, and approximately\n$2,400 in cash were quasi-marital property. The remaining property was found to be Leslie\xe2\x80\x99s separate\nproperty, consisting of: (1) Parcel 2, which was in decedent\xe2\x80\x99s name alone, (2) an undivided one-half\ninterest in Parcel 3, which was in decedent\xe2\x80\x99s and Garvin\xe2\x80\x99s names and held as a tenancy in common,\n(3) the remaining furniture in the Mira Loma residence, (4) a two-thirds interest in the Mira Loma\nresidence, (5) the trustee bank account, and (6) the promissory note from the sale of the restaurant\nproperty. Finally, the trial court found that the funds used to improve the restaurant had come from\ndecedent\xe2\x80\x99s separate property and the improvements had been made by decedent\xe2\x80\x99s sons.\nGarvin makes several contentions on appeal. First, he argues that he is entitled to an intestate share\nof the decedent\xe2\x80\x99s separate property. Second, he contends that he should have been appointed\nadministrator of the estate. Lastly, he challenges several of the trial court\xe2\x80\x99s separate property\nfindings.\nII.\nThe principal issue presented by this case is whether a putative spouse is entitled to succeed to a\nshare of his or her decedent\xe2\x80\x99s separate property. Although this court has not directly confronted this\nquestion, the conclusions of other courts on this and analogous questions are instructive.\nSome guidance can be gleaned from decisions which have held that a putative spouse is entitled to\nsucceed to quasi-marital property. (See ante, fn. 5.) One such decision is Feig v. Bank of America etc.\nAssn. (1936) 5 Cal.2d 266, 54 P.2d 3. The Feigs were married in 1889. A year later, Mrs. Feig\nobtained a divorce without Mr. Feig\xe2\x80\x99s knowledge. The couple continued living together as husband\nand wife. In 1921, Mrs. Feig suggested that she and Mr. Feig remarry. It was only then that Mr. Feig\ndiscovered that he and Mrs. Feig were divorced. They remarried that year. In 1929, Mrs. Feig died\nintestate. (Id., 2 Cal. 2d at 270, 54 P.2d 3).\nAt issue in Feig was the property acquired after the 1890 divorce and before the 1921 remarriage.\nThe trial court awarded all the property to Mr. Feig. This court, affirming the judgment, noted that\nthe property acquired by the Feigs during the period they were divorced, \xe2\x80\x9calthough not community\n69\n\n\x0cby reason of the fact that there was in truth no marriage, should be marked by all the incidents of\ncommunity property.\xe2\x80\x9d (5 Cal.2d at p. 273, 54 P.2d 3). Thus, Mr. Feig was entitled to all of the\n\xe2\x80\x9ccommunity\xe2\x80\x9d property (Id., 5 Cal.2d at pp. 273-274, 54 P.2d 3).\nAlthough the surviving husband in Feig was the legal spouse at the time of his wife\xe2\x80\x99s death, he was\nalso the putative spouse for the period during which the couple were divorced. Thus, Feig essentially\nholds that a surviving putative spouse is entitled to all the property acquired during the putative\nmarriage.\nThis holding was made explicit several years later in Estate of Krone (1948) 83 Cal. App. 2d 766, 189\nP.2d 741. There, the decedent was survived by his putative wife and three children from a previous\nmarriage. The trial court determined that the putative wife was entitled to only one-half of the\n\xe2\x80\x9ccommunity\xe2\x80\x9d estate (Id., 83 Cal. App 2d at pp. 766-767, 189 P.2d 741). The Court of Appeal\nmodified the judgment to award all of the \xe2\x80\x9ccommunity\xe2\x80\x9d estate to the putative wife. (Id., 83 Cal. App.\n2d at p. 770, 189 P.2d 741). The court held that when a putative spouse dies, the surviving spouse\ntakes \xe2\x80\x9cthe same share to which she would have been entitled as a legal spouse.\xe2\x80\x9d (Id., 83 Cal. App. 2d\nat p. 769, 189 P.2d 741).\nThe Krone court reasoned that \xe2\x80\x9cthe logic appears irrefutable that if according to statute [\xc2\xa7 201] the\nsurvivor of a valid, ceremonial marriage shall be entitled to take all of the community estate upon its\ndissolution, then by parity of reasoning why should not the [putative] wife inherit the entire estate of\na putative union upon the death of her husband intestate? Clearly, she does inherit all.\xe2\x80\x9d (83 Cal. App.\n2d at pp. 769-770, 189 P.2d 741; accord Union Bank & Trust Co. v. Gordon (1953) 116 Cal. App. 2d\n681-690, 254 P.2d 644; Mazzenga v. Rosso (1948) 87 Cal. App. 2d 790, 793-794, 197 P.2d 770). It\nwould be contrary to established law to deny a putative spouse \xe2\x80\x9cher rights as a surviving spouse to\ninherit the total of the gains of the putative marriage.\xe2\x80\x9d (83 Cal. App.2d at p. 770, 189 P.2d 741).\nKrone has been read \xe2\x80\x9cto recognize a putative [spouse] as a legal spouse for the purpose of\nsuccession.\xe2\x80\x9d (Kunakoff v. Woods (1958) 166 Cal. App. 2d 59, 65-66, 332 P.2d 773). That reading is\nclearly applicable to the determination of the separate property rights of a putative spouse.\nA number of Court of Appeal decisions support the conclusion that a putative spouse is entitled to\nsucceed to a share of the decedent\xe2\x80\x99s separate property. Estate of Goldberg (1962) 203 Cal.App.2d 402,\n21 Cal.App.2d 402, 21 Cal. Rptr. 626, is one such case. Sam Goldberg died intestate, survived by\nEdith, his putative spouse, and three children from a prior marriage. The trial court found that Edith\nwas both Sam\xe2\x80\x99s actual and putative spouse. She was awarded all of the community property as well\nas one-third of Sam\xe2\x80\x99s separate property. The other two-thirds of the separate property was awarded\nto Sam\xe2\x80\x99s children. (Id., 203 Cal.App.2e at p. 404, 21 Cal. Rptr. 626; see \xc2\xa7 221, ante, fn. 6.) The children\nappealed.\nThe Court of Appeal agreed with the trial court\xe2\x80\x99s finding that there was insufficient evidence that\nEdith was Sam\xe2\x80\x99s actual wife, but sufficient evidence that she was Sam\xe2\x80\x99s putative wife. (203\nCal.App.2d at pp. 411-412, 21 Cal. Rptr. 626). As a putative spouse, Edith was entitled \xe2\x80\x9cto the same\nshare of the \xe2\x80\x98community\xe2\x80\x99 property as she would receive as an actual wife.\xe2\x80\x9d (Id., 203 Cal. App.2d at p.\n412, 21 Cal. Rptr. 626).\nAlthough the Goldberg court was silent on the question of Edith\xe2\x80\x99s right as a putative spouse to\nsucceed to Sam\xe2\x80\x99s separate property, the court did affirm the trial court\xe2\x80\x99s award of one-third of that\n70\n\n\x0cproperty to Edith. By such action, the Court of Appeal implicitly recognized the right of a surviving\nputative spouse to an intestate share of the decedent\xe2\x80\x99s separate property.\nSimilarly in Garrado v. Collins (1955) 136 Cal. App.2d 323, 288 P.2d 620, the trial court awarded the\nputative husband one-third of the decedent\xe2\x80\x99s separate property. The decedent\xe2\x80\x99s two children from a\nprevious marriage appealed, arguing that the putative husband was not entitled to any of the separate\nproperty. (Id., 136 Cal. App. 21 at pp. 324-325, 288 P.2d 620).\nThe Court of Appeal did not reach the merits of the trial court\xe2\x80\x99s award. Instead, it held that the\nchildren lacked standing as aggrieved parties and dismissed the appeal. (136 Cal. App. 2d at pp. 325326, 288 P.2d 620). In dictum, the court noted that the children could not inherit the separate\nproperty at issue because that property would descend either to the legal husband, who was still\nliving, or to the surviving putative husband. (Ibid.) That observation is significant, since the court\nrecognized the possibility that the putative husband may have been awarded the \xe2\x80\x9csurviving\nspouse\xe2\x80\x99s\xe2\x80\x9d share of the separate property even as against the legal husband.\nFinally, there is Estate of Shank (1957) 154 Cal.App.2d 808, 316 P.2d 710. Claire Shank married her\nlegal husband in 1944, then obtained a Mexican divorce, and subsequently married her putative\nhusband. In 1953, she died intestate, leaving an estate consisting entirely of separate property. She\nwas survived by a putative husband, a legal husband, and three adult siblings. (Id., 154 Cal. App. 2d\nat pp. 809-810, 316 P.2d 710).\nThe trial court found that the Mexican divorce was invalid and awarded all the separate property to\nthe siblings. The court also found that the legal husband had acquiesced in and relied upon the\nMexican divorce and had conducted himself as if that decree were valid. He was, therefore, estopped\nfrom asserting that he was the surviving spouse for the purpose of inheriting the decedent\xe2\x80\x99s separate\nproperty. In addition, the trial court found that the decedent\xe2\x80\x99s marriage to her putative husband was\ninvalid because she was still married to her legal husband at the time of the second \xe2\x80\x9cmarriage.\xe2\x80\x9d (154\nCal.App.2d at pp. 810-811, 316 P.2d 710) Both the legal and putative husbands appealed. (Id., 154\nCal.App.2d at p. 811, 316 P.2d 710).\nThe Court of Appeal affirmed the award as to the legal husband, concluding that as against the\nputative husband, the former was estopped from contending that the divorce was invalid. (154 Cal.\nApp. 2d at pp. 811-812, 316 P.2d 710). However, the court concluded that the putative husband was\nentitled to one-half of the separate property. Since the decedent was estopped from denying the\nvalidity of the Mexican divorce during her life as against the putative husband, her heirs, in privity\nwith her, were also estopped. The court noted that a second marriage is presumed to be valid. (Id.,\n154 Cal.App.2d at pp. 812, 316 P.2d 710). Although the result in Shank rests on estoppel principles,\nit provides yet another example of a putative spouse who was permitted to succeed to a share of the\ndecedent\xe2\x80\x99s separate property.\nIn many analogous contexts, California courts, as well as federal courts applying California law, have\naccorded surviving putative spouses the same rights as surviving legal spouses. Examples abound.\nIn Kunakoff v. Woods, supra, 166 Cal.App.2d at p.59, 67-68, 332 P.2d 773, a surviving putative spouse\nwas held to be an heir for the purposes of Code of Civil Procedure section 377. As such, she was\nentitled to bring an action for the wrongful death of her deceased partner. The Court of Appeal\nnoted that the term \xe2\x80\x9cspouse\xe2\x80\x9d may include a putative spouse. (Kunakoff v. Woods, supra, 166\n71\n\n\x0cCal.App.2d at p. 63, 332 P.2d 773). The court reasoned that since a putative spouse is an heir for\npurposes of succession, she is an heir for purposes of maintaining an action for wrongful death. (Id.,\n166 Cal.App.2d at pp. 67-68, 332 P.2d 773).\nA surviving putative spouse has also been held to be a surviving spouse within the meaning of\nGovernment Code section 21364. (Adduddell v. Board of Administration, supra, 8 Cal. App.3d 243, 87\nCal. Rptr. 268). That statute entitles a surviving spouse to special death benefits under the Public\nEmployees\xe2\x80\x99 Retirement Law. In Adduddell, the court indicated that it would be \xe2\x80\x9cillogical and\ninconsistent\xe2\x80\x9d for the Legislature to intend that a putative spouse is a surviving spouse under section\n201, but not a surviving spouse under Government Code section 21364. (8 Cal.App.3d at pp. 249250, 87 Cal. Rptr. 268).\nA surviving putative spouse has also been held to be a \xe2\x80\x9csurviving widow\xe2\x80\x9d within the meaning of a\nformer version of Labor Code section 4702 (Stats.1969, ch. 65, \xc2\xa7 1, p. 187), and thus entitled to\nrecovery of workers\xe2\x80\x99 compensation death benefits. (Brennfleck v. Workmen\xe2\x80\x99s Comp. App. Bd., supra, 3\nCal. App.3d 666, 84 Cal.Rptr. 50; see also Neureither v. Workmen\xe2\x80\x99s Comp. App. Bd. (1971) 15 Cal.App.\n3d 429, 433, 93 Cal. Rptr. 162).\nFinally, it is noteworthy that putative spouses have been awarded spousal benefits under the civil\nservice retirement statute (5 U.S.C. \xc2\xa7 8341, Brown v. Devine (N.D. Cal. 1983) 574 F. Supp. 790, 792),\n(under the Longshoremen\xe2\x80\x99s and Harbor Workers\xe2\x80\x99 Compensation Act (33 U.S.C. \xc2\xa7 901 et.seq., Powell\nv. Rogers (9th Cir. 1974) 496 F.2d 1248, 1250, cert. den., 419 U.S. 1032, 95 S.Ct. 514, 42 L.Ed. 2d 307;\nHolland American Insurance Company v. Rogers (N.D. Cal. 1970) 313 F. Supp. 314, 317-318, and under\nthe Social Security Act (42 U.S.C. \xc2\xa7 416, Aubrey v. Folsom (N.D. Cal. 1957) 151 F.Supp. 836, 840;\nSpeedling v. Hobby (N.D. Cal. 1955) 132 F.Supp. 833, 836).\nThe foregoing authority compels but one conclusion: a surviving putative spouse is entitled to\nsucceed to a share of his or her decedent\xe2\x80\x99s separate property. This result is inherently fair. By\ndefinition, a putative marriage is a union in which at least one partner believes in good faith that a\nvalid marriage exists. As in this case, the couple conducts themselves as husband and wife\nthroughout the period of their union. Why should the right to separate property accorded to legal\nspouses be denied to putative spouses?\nFurther, to deny a putative spouse the status of surviving spouse for the purposes of succeeding to a\nshare of the decedent\xe2\x80\x99s separate property would lead to anomalous and unjust results. For example,\nwhere the decedent is survived by a putative spouse and children of the putative marriage, such a\nrule would deny the spouse succession rights to separate property even though the children are\naccorded such rights. Such a rule would also deny succession rights to a putative spouse who lived\nwith the decedent for many years, while according these rights to the legal spouse, even if that\nspouse\xe2\x80\x99s partner died the day the couple were married. (Laughran & Laughran, Property and Inheritance\nRights of Putative Spouses in California: Selected Problems and Suggested Solutions (1977) 11 Loyola L.A.L.Rev.\n45, 68.) Surely, the Legislature never intended such results.\nThere is one Court of Appeal decision which has reached a conclusion contrary to that reached by\nthis court today. That decision must therefore be addressed. In Estate of Levie (1975) 50 Cal. App.3d\n572, 123 Cal. Rptr. 445, the trial court awarded the putative spouse all of the quasi-marital property\nas well as an intestate share of the decedent\xe2\x80\x99s separate property. (Id., 50 Cal. App.3d at p. 574, 123\nCal. Rptr. 445). One of the decedent\xe2\x80\x99s children from a prior marriage appealed. The Court of Appeal\n72\n\n\x0creversed the separate property determination, rejecting the argument that a putative spouse is\nentitled to a surviving spouse\xe2\x80\x99s share of the decedent\xe2\x80\x99s separate property. (Id., 50 Cal.App.3d at pp.\n576-577, 123 Cal. Rptr. 445).\nThe Levie court articulated three reasons in support of its holding. First, it noted that there appeared\nto be no California decision suggesting that a putative spouse is entitled to succeed to an interest in\nthe decedent\xe2\x80\x99s separate property. Second, it declared that the equities connected with quasi-marital\nproperty do not apply to a decedent\xe2\x80\x99s separate property because the joint efforts of the putative\nspouses did not contribute to the acquisition of that property. Lastly, the court observed that to give\nthe putative spouse an interest in a decedent\xe2\x80\x99s separate property would \xe2\x80\x9cunjustifiably disregard the\nstatutory scheme governing intestate succession of separate property.\xe2\x80\x9d (50 Cal. App. 3d at 576-577,\n123 Cal. Rptr. 445).\nLevie has been severely criticized by the commentators and for good reasons. (See, e.g., Laughran &\nLaughran, op. cit. supra, 11 Loyola L.A.L.Rev. at pp. 64, 66\xe2\x80\x9368, 78, 85; Bruch, The Definition and\nDivision of Marital Property in California: Towards Parity and Simplicity (1982) 33 Hastings L.J. 771, 825, fn.\n224; Reppy, Debt Collection from Married Californians: Problems Caused by Transmutations, Single-Spouse\nManagement, and Invalid Marriage (1981) 18 San Diego L. Rev. 143, 218, fn. 283.) Not only are the Levie\ncourt\xe2\x80\x99s reasons unpersuasive, but its conclusion leads to anomalous, absurd and unjust results.\nLevie\xe2\x80\x99s first reason is plainly in error. Numerous California decisions have suggested that a putative\nspouse is entitled to succeed to a share of a decedent\xe2\x80\x99s separate property. (See ante, at pp. 566\xe2\x80\x93567 of\n207 Cal.Rptr., pp. 138\xe2\x80\x93139 of 689 P.2d.) For example, the result in Estate of Krone, supra, 83 Cal. App.\n766, 189 P.2d 741 (ante, at pp. 565\xe2\x80\x93566 of 207 Cal.Rptr., pp. 137\xe2\x80\x93138 of 689 P.2d) suggests that a\nputative spouse should also be considered a surviving spouse for purposes of other sections in the\nsame division of the Probate Code. Moreover, a surviving putative spouse has been accorded the\nsame rights as a surviving legal spouse in many analogous contexts. (See ante, at pp. 567\xe2\x80\x93568, of 207\nCal.Rptr., pp. 139\xe2\x80\x93140 of 689 P.2d.) Clearly, Levie\xe2\x80\x99s first reason is without basis in fact.\nEqually unpersuasive are the other two reasons given in Levie. Two commentators have aptly\naddressed these reasons in their article concerning the rights of putative spouses. (See Laughran &\nLaughran, op. cit. supra, 11 Loyola L.A.L.Rev. at pp. 66\xe2\x80\x9368.) As the Laughrans observe, \xe2\x80\x9c[w]hile it is\ntrue that the joint efforts of putative spouses do not contribute to the acquisition of separate\nproperty, it is equally true that the efforts of a legally married person do not contribute to the\nacquisition of separate property of the other spouse. It therefore begs the question to state that the\n\xe2\x80\x98equities\xe2\x80\x99 of a putative spouse differ depending upon whether rights of succession to quasi-marital or\nseparate property are at issue, since the same distinction applies to the \xe2\x80\x98equities\xe2\x80\x99 of a legally married\nperson with respect to rights of succession to community and separate property. Thus, as to rights\nof intestate succession to separate property of the decedent, the \xe2\x80\x98equitable\xe2\x80\x99 position of a surviving\nlegal spouse and a surviving putative spouse is the same.\xe2\x80\x9d (Id., at p. 67.)\nFurther, language within the Levie opinion contradicts its ultimate conclusion. Levie stated that a\nputative spouse\xe2\x80\x99s right to succeed to quasi-marital property is derived from \xe2\x80\x9c \xe2\x80\x98[e]quitable\nconsiderations arising from the reasonable expectation of the continuation of benefits attending the\nstatus of marriage entered into in good faith ....\xe2\x80\x99 [Citations.]\xe2\x80\x9d (50 Cal. App.3d at p. 576, 123 Cal.\nRptr. 445). As the Laughrans convincingly assert, \xe2\x80\x9c[t]hat very language dictates a decision in favor of\nthe surviving putative spouse in cases involving succession to separate property, since the rights of a\n\xe2\x80\x98surviving spouse\xe2\x80\x99 [to succeed to separate property under the Probate Code] are \xe2\x80\x98benefits attending\n73\n\n\x0cthe status of marriage.\xe2\x80\x99 \xe2\x80\x9d (Laughran & Laughran, op. cit. supra, 11 Loyola L.A.L.Rev. at p. 67, italics\nadded.)\nTo accord a surviving putative spouse rights to the decedent\xe2\x80\x99s separate property honors rather than\ndisregards the statutory scheme governing intestate succession. (Laughran & Laughran, op. cit. supra,\n11 Loyola L.A.L.Rev. at p. 67; but see Levie, supra, 50 Cal.App.3d at p. 577, 123 Cal.Rptr. 445). Since\nthe right to succession is not an inherent or natural right, but purely a creature of statute (Estate of\nSimmons (1996) 64 Cal. 2d 217, 221, 49 (Estate of Simmons (1966) 64 Cal. 2d 217, 221, 49 Cal. Rptr.\n369, 411 P.2d 97), a surviving legal spouse inherits a decedent\xe2\x80\x99s separate property \xe2\x80\x9conly because the\nstatutes provide that a person having the status of \xe2\x80\x98surviving spouse\xe2\x80\x99 takes a certain share.\xe2\x80\x9d\n(Laughran & Laughran, op. cit. supra, 11 Loyola L.A.L. Rev. at p. 67.) To accord a surviving putative\nspouse the status of \xe2\x80\x9csurviving spouse\xe2\x80\x9d simply recognizes that a good faith belief in the marriage\nshould put the putative spouse in the same position as a survivor of a legal marriage. (Id., at p. 68.)\nThus, contrary to Levie, to permit a surviving putative spouse to succeed to a share of the decedent\xe2\x80\x99s\nseparate property in no way upsets the statutory scheme of intestate succession.\nLevie is \xe2\x80\x9cwrong in its analysis of the \xe2\x80\x98equities,\xe2\x80\x99 wrong as a matter of statutory construction, and ...\nignores compelling analogous precedents.\xe2\x80\x9d (Laughran & Laughran, op. cit. supra, 11 Loyola\nL.A.L.Rev. at p. 78.) Therefore, to the extent that it is inconsistent with this opinion, Levie is\ndisapproved.\nHere, the trial court determined that Garvin was not decedent\xe2\x80\x99s \xe2\x80\x9csurviving spouse\xe2\x80\x9d under section\n221. As a result, the court determined that he had no legal interest in any of her separate property.\nThat determination was in error.\nIII.\nGarvin next argues that under section 422 he should have been appointed the administrator of\ndecedent\xe2\x80\x99s estate. This argument has merit.\nSection 422 lists in order of priority the persons who are entitled to letters of administration. That\nsection provides: \xe2\x80\x9c(a) Administration of the estate of a person dying intestate must be granted to one\nor more of the following persons, who are entitled to letters in the following order: (1) The surviving\nspouse, or some competent person whom he or she may request to have appointed. (2) The\nchildren.... (b) A relative of the decedent who is entitled to priority under subdivision (a) is entitled\nto priority only if either of the following facts exist: (1) The relative is entitled to succeed to all or\npart of the estate....\xe2\x80\x9d (Italics added.)\nThe meaning of the statute is clear. \xe2\x80\x9cThe surviving spouse, when entitled to succeed to the estate or\nsome portion thereof, is given first preference. This right is absolute and the court has no right to\nrefuse to appoint the survivor or to appoint another in a lower class.\xe2\x80\x9d (Estate of Hirschberg (1964) 224\nCal.App.2d 449, 461, 36 Cal. Rptr. 661; see also Estate of Johnson (1920) 182 Cal. 642, 643, 189 P.\n280; Estate of Cummings (1972) 23 Cal.App.3d 617, 622, 100 Cal. Rptr. 809; Estate of Locke (1968) 258\nCal. App.2d 617, 622, 65 Cal.Rptr. 884).\nIn addition, the reasoning in section II (ante, at pp. 564\xe2\x80\x93570 of 207 Cal.Rptr., pp. 136\xe2\x80\x93142 of 689\nP.2d) compels the conclusion that a putative spouse is a surviving spouse within the meaning of\nsection 422. Without reiterating those reasons here, suffice it to say that in the absence of clear\n74\n\n\x0clegislative direction to the contrary, neither logic nor justice supports the conclusion that a putative\nspouse may inherit an intestate share of the decedent\xe2\x80\x99s separate property but may not administer the\nestate.\nHere, the trial court denied Garvin\xe2\x80\x99s petition for letters of administration. As a putative husband,\nGarvin is a surviving spouse under section 422. Therefore, he is entitled to letters of administration\nand has preference over anyone else. The trial court\xe2\x80\x99s ruling was in error.\nIV.\nNext, Garvin contends that the trial court erred in finding that certain of the Desert Hot Springs\nproperty, the Mira Loma furniture, and the trustee bank account were decedent\xe2\x80\x99s separate property.\nHe also contends that the trial court erred in failing to find a community interest in the\nimprovements made to decedent\xe2\x80\x99s restaurant property. His argument is essentially that the trial\ncourt\xe2\x80\x99s determinations are unsupported by substantial evidence.\nIn reviewing the sufficiency of the evidence, this court is guided by well-settled principles. \xe2\x80\x9c[T]he\npower of the appellate court begins and ends with a determination as to whether there is any\nsubstantial evidence, contradicted or uncontradicted,\xe2\x80\x9d to support the trial court\xe2\x80\x99s findings. (Crawford\nv. Southern Pacific Co. (1935) 3 Cal. 2d 427, 429, 45 P.2d 183; Jessup Farms v. Baldwin (1983) 33 Cal. 3d\n639, 660, 190 Cal. Rptr. 355, 660 P.2d 813). \xe2\x80\x9cWe must therefore view the evidence in the light\nmost favorable to the prevailing party, giving [him] the benefit of every reasonable inference and\nresolving all conflicts in [his] favor ....\xe2\x80\x9d (Ibid.) \xe2\x80\x9c \xe2\x80\x98The finding of a trial court that property is either\nseparate or community in character is binding and conclusive on the appellate court if it is supported\nby sufficient evidence, or if it is based on conflicting evidence or upon evidence that is subject to\ndifferent inferences ....\xe2\x80\x99 \xe2\x80\x9d (Beam v. Bank of America (1971) 6 Cal.3d 12, 25, 98 Cal. Rptr. 137, 490 P.2d\n257). With these familiar principles in mind, this court examines each of the challenged findings.\nThree parcels of real property were purchased during the putative marriage. Although two parcels\nwere purchased at the same time, title to each was taken in a different manner. Title to Parcel 1 was\ntaken in Leslie\xe2\x80\x99s and Garvin\xe2\x80\x99s names as joint tenants, while title to Parcel 2 was taken in Leslie\xe2\x80\x99s\nname alone. Sixteen months later, Garvin and Leslie purchased Parcel 3. Title to it was taken in both\ntheir names as tenants in common.\nGarvin contests the trial court\xe2\x80\x99s findings that Parcel 2 and Leslie\xe2\x80\x99s one-half interest in Parcel 3 were\nher separate property. However, the record amply supports those findings.\nThe fact that title to each of the three parcels was taken in a different manner, particularly where all\nwere purchased within a 16-month period, supports the inference that the parties deliberately\nintended to differentiate the ownership interests in each. Garvin\xe2\x80\x99s own testimony supports this\ninference. As he testified, a married couple \xe2\x80\x9ccould put land or buy land in one name or another,\nwhatever they wanted to. I mean, that was up to their own particular rights. Each of us knew how\n[title] got there and why. Of course, we never anticipated all these other problems at this point in\ntime.\xe2\x80\x9d Garvin was obviously sophisticated enough to understand the reasons for taking title to the\nproperties in different ways. Thus, the trial court\xe2\x80\x99s findings that Parcel 2 and one-half of Parcel 3\nwere decedent\xe2\x80\x99s separate property were amply justified.\nGarvin\xe2\x80\x99s contention that the trial court erred in finding that the bulk of Leslie\xe2\x80\x99s furniture was her\n75\n\n\x0cseparate property is also without merit.\nSmith testified that with the exception of two end tables, all of the furniture in his mother\xe2\x80\x99s\nresidence had been acquired prior to her marriage with Garvin. Although Garvin contradicted this\ntestimony, the trial court resolved the conflict in Smith\xe2\x80\x99s favor. This court is bound by the trial\ncourt\xe2\x80\x99s finding, since it is based on substantial evidence. (Jessup Farms v. Baldwin, supra, 33 Cal.3d at p.\n660, 190 Cal.Rptr. 355, 660 P.2d 813).\nAlternatively, Garvin relies on the proposition that he should be awarded all the furniture as exempt\nproperty. (\xc2\xa7 660). Since Garvin failed to make this argument below, he is precluded from raising it\nfor the first time on appeal. Estate of Westerman (1968) 68 Cal.2d 267, 66 Cal. Rptr. 29, 437 P.2d 517).\nIn any event, it is well established that a trial court has discretion to deny a surviving spouse\xe2\x80\x99s\nrequest to set exempt property apart once an inventory has been filed. (\xc2\xa7 660; Estate of Hawkins\n(1956) 141 Cal.App. 2d 391, 397-398, 296 P.2d 873). There is no evidence that the trial court abused\nits discretion.\nAccordingly, the trial court\xe2\x80\x99s finding as to the furniture is affirmed.\nGarvin also contends that the trial court erred in finding that the trustee bank account consisted\nentirely of Leslie\xe2\x80\x99s separate property. Once again, Garvin\xe2\x80\x99s contention lacks merit.\nGarvin offered the only evidence regarding the trustee account. He testified that when the account\nwas originally established, $1,000 of \xe2\x80\x9ccommunity funds\xe2\x80\x9d were placed in it. He also testified that\npayments from the sale of Leslie\xe2\x80\x99s restaurant property were deposited into the account and that\nLeslie withdrew money and placed it into the couple\xe2\x80\x99s common funds. Moreover, Leslie was the sole\ntrustee named on the account for her granddaughter. At the time of Leslie\xe2\x80\x99s death, there were $1,719\nin the account.\nIn ruling on this matter, the trial court found that Garvin had no interest in the account. The trial\ncourt specifically indicated that it had taken the witnesses\xe2\x80\x99 credibility into consideration. Since that\ncourt was in a better position to weigh Garvin\xe2\x80\x99s credibility against evidence that the account\nappeared to be Leslie\xe2\x80\x99s separate property, this court discerns no error in the trial court\xe2\x80\x99s ruling.\nLastly, Garvin asserts that funds and labor from the \xe2\x80\x9ccommunity\xe2\x80\x9d were used to improve decedent\xe2\x80\x99s\nrestaurant property and that the \xe2\x80\x9ccommunity\xe2\x80\x9d is therefore entitled to a pro rata share of the\nincreased value of that property. This assertion, too, fails.\nIt is undisputed that decedent acquired the restaurant prior to her marriage with Garvin. It is also\nuncontested that improvements were made to the restaurant that increased its value.\nHowever, the testimony was in conflict regarding the source of funds and labor used for the\nimprovements. Garvin testified that community funds were used and that he and Leslie did most of\nthe work themselves. Smith testified that his mother\xe2\x80\x99s separate funds were used, that he and his\nbrother did most of the work, and that any labor by Garvin was minimal.\nThe trial court resolved the conflict in Smith\xe2\x80\x99s favor. The finding that the restaurant property was\ndecedent\xe2\x80\x99s separate property is thus binding on this court for it is supported by substantial evidence.\n(Jessup Farms v. Baldwin supra, 33 Cal.3d at p. 660, 190 Cal. Rptr. 355, 660 P.2d 813).\n76\n\n\x0cV.\nVirtually every court which has considered the issue has accorded a surviving putative spouse the\nsame rights as a surviving legal spouse. The one court which has decided against such benefits did so\nin a poorly reasoned and unsound decision. Moreover, as in most putative spouse cases, the couple\ninvolved here lived together for a substantial period of time, conducting themselves as husband and\nwife throughout their union. To deny one of their members an intestate share of the decedent\xe2\x80\x99s\nseparate property while permitting him to succeed to the quasi-marital property defies logic and\nleads to unjust results. Therefore, this court holds that a surviving putative spouse is entitled to\nsucceed to a share of the decedent\xe2\x80\x99s separate property. Similar reasoning supports the conclusion\nthat a surviving putative spouse is entitled to first preference for letters of administration.\nAccordingly, the portion of the trial court\xe2\x80\x99s judgment denying Garvin an interest in decedent\xe2\x80\x99s\nseparate property and letters of administration in decedent\xe2\x80\x99s estate is reversed. In all other respects,\nthe judgment is affirmed.\nNotes, Problems, and Questions\n1. If Garvin is recognized as a legal spouse and the jurisdiction has adopted the UPC, what portion\nof Leslie\xe2\x80\x99s estate would Gavin take?\n2. What were the reasons the court gave for giving Garvin, the putative spouse in this case, the\nstatus of surviving spouse?\n3. What three reasons did the Levie court give for denying the putative surviving spouse status?\n4. How did the Leslie court justify not following the holding of the Levie case?\n5. The surviving spouse receives a share of an intestate decedent\xe2\x80\x99s estate because the law presumes\nthat a decedent wants to provide for the spouse that he or she leaves behind. Should that\npresumption be rebuttal? What if one spouse finds that the other spouse is cheating and dies\nintestate before he or she can obtain a divorce? Would the decedent really want his or her cheating\nspouse to inherit his or her separate property?\n6. Consider the following example. Griffin had no intention of marrying Cindy, but he wanted to\nhave intimate relations with her. Cindy had taken a purity pledge to avoid sex before marriage, so\nshe refused Griffin\xe2\x80\x99s advances. Griffin often told his friends that he would not get married unless\nthe woman signed a prenuptial agreement. Griffin got Stanley, one of his friends, to pretend to be a\nlicensed minister. Stanley performed the ceremony and declared that Griffin and Cindy were legally\nmarried. Two days later, Griffin died intestate in a car accident. He was survived by his parents, Joe\nand Betty; his brothers, Henry and Paul; and Cindy. Griffin left an estate of $930,000. Is Cindy a\nputative spouse? Should she be entitled to an elective share of Griffin\xe2\x80\x99s estate after just two days of\nmarriage? If she is entitled to take, how much would Cindy get in a UPC jurisdiction?\n\n77\n\n\x0cThe scenario of a person remarrying without divorcing the first spouse is common especially\nin small southern towns. Problems starts when the person dies and two grieving spouses show up at\nthe funeral.\n\nEstate of Hafner, 184 Cal. App. 3d 1371 (Cal. App. Ct. 1986)\nDANIELSON, J.\nThe principle issue presented by this case is: as between the surviving, innocent, wife and children of\na bigamous husband, and his surviving, innocent, putative spouse and their child, who is entitled to\nsucceed to the husband\xe2\x80\x99s intestate estate when that estate is, as to his surviving wife and children,\nthe husband\xe2\x80\x99s separate property and is, as to the putative spouse, quasi-marital property?\nWe hold that, as separate property, one-half of the estate goes to the surviving wife and four\nchildren of the decedent for distribution pursuant to former section 221 of the Probate Code\n(hereafter section 221) and the other one-half goes to the surviving putative spouse as quasi-marital\nproperty pursuant to Civil Code section 4452 and former section 201 of the Probate Code (hereafter\nsection 201).\nFactual Background and Proceedings Below\nJoan Hafner (Joan) and the decedent Charles J. Hafner (Charles) were married on June 12, 1954, in\nthe State of New York; it was the first marriage for each of them. Following their marriage they took\nup residence in College Point, New York. Joan has continued to live in or near College Point ever\nsince. The marriage between Joan and Charles produced three daughters, all of whom are now\nliving: Catherine Kotsay, born December 25, 1955; Lillian Mayorga, born November 18, 1956; and\nDorothy Hafner, born November 16, 1957.\nIn February or March of 1956 Joan learned that she was pregnant with her second child and told\nCharles. In April or May of 1956 Charles left Joan, without prior notice and without letting her\nknow where he would be. At that time their first child, Catherine, was sick and Joan moved back to\nher parents, who supported her; she received no support from Charles.\nJoan and Charles were reunited briefly in early 1957. Charles left Joan for the last time in February\n1957. Joan, then pregnant with their third child, encountered Charles on the street in New York in\nMay 1957. He told her, \xe2\x80\x9cI hear you are going to have another baby,\xe2\x80\x9d and asked her whether she\nwould like to go to California. Joan replied, \xe2\x80\x9cWhat guarantees would I have that you won\xe2\x80\x99t leave me\npregnant again?\xe2\x80\x9d Charles replied, \xe2\x80\x9cThere\xe2\x80\x99s no guarantees.\xe2\x80\x9d\nIn 1956 and 1958, Joan filed support proceedings against Charles in the New York family court. In\n1956, she obtained a $12 per week child support order and in 1958 she obtained a similar order for\n$20 per week. Charles made four support payments in 1958 but never made any other payments. In\n1958, Joan consulted an attorney in New York on the support matters, but, because of the expense\nrequired to locate Charles in California, she did not pursue the matter. In 1961, Joan abandoned any\nfurther efforts to obtain support warrants in the New York family court because such efforts caused\nher to lose time on her job.\n78\n\n\x0cJoan last saw Charles in the New York family court in 1958 when he was brought before the court\non a support warrant. Shortly after that appearance, an acquaintance told Joan that Charles had gone\nto California. From 1958 until his death in 1982, Joan and Charles never saw or communicated with\neach other again. Joan knew that Charles was in California but did not know where in California.\nBeginning in 1961, and continuously thereafter, Joan considered her marriage to Charles for all\npracticable purposes to have ended and that they would never reconcile or even see each other\nagain.\nExcept for short intervals to have their babies, Joan was employed at all times following her\nmarriage to Charles, and was so employed at the time of the trial below. She reared the three\ndaughters of herself and decedent.\nIn August, 1953, shortly after graduating from high school, Joan commenced working at a magazine\ncompany and continued until August, 1955, when she left because she was pregnant with her first\ndaughter. In April, 1957, she went to work on the assembly line of a rubber company, on a machine\nputting snaps on baby pants. Except for a three-month lay-off to have her third baby she stayed on\nthat machine for about twelve years, when the company moved away. She started at the minimum\nwage and later became a piece worker. After two weeks of unemployment she went to work for a\nglove manufacturing company, starting as an order picker, filling orders, and later as a stock\nsupervisor, making sure that the orders were picked and sent out. She was still so employed at the\ntime of the trial of the within action and had then been working at the glove factory for 14 1/2\nyears.\nJoan never sought a divorce from Charles; it is unclear whether she did not seek a divorce because\nof religious convictions, the lack of financial resources, or a lack of interest. At no time from their\nmarriage in 1954 until his death on December 25, 1982, did Charles ever file proceedings to dissolve\nhis marriage to Joan. Their marriage was still in full force and effect at the time of Charles\xe2\x80\x99 death.\nRespondent Helen L. Hafner (Helen) met Charles in 1962 when he was a patron at a beer bar where\nshe was working as a barmaid. Helen had separated from her second husband, Eldon Pomeroy, in\nNovember, 1961.\nCharles told Helen that he had divorced his wife, Joan, in New York on charges of adultery, that he\nhad three children of that marriage with Joan, and that he had given up an interest in a house in lieu\nof child support. Charles further stated that the divorce records had been destroyed in a fire in New\nYork. Helen, in good faith, relied on these representations and believed them to be true\ncontinuously thereafter; she had no actual knowledge or reasonable grounds to believe otherwise.\nIn July 1962, Helen and Charles went to Tijuana, Mexico, to enable Helen to obtain a divorce from\nPomeroy and to participate in a marriage ceremony with Charles. Both of those objectives were\naccomplished. Helen, in good faith, believed that both the divorce and marriage were valid.\nFollowing their return from Tijuana in 1962, Helen and Charles lived as husband and wife.\nHelen\xe2\x80\x99s second husband, Pomeroy, was killed in an accident on June 21, 1963. In June 1963, Helen\nconsulted an attorney and was advised that her Mexican divorce from Pomeroy was invalid in\nCalifornia. Following Pomeroy\xe2\x80\x99s death Helen and Charles went to Las Vegas, Nevada, and\nparticipated in a marriage ceremony. After that marriage ceremony, on October 14, 1963, Helen and\n79\n\n\x0cCharles returned to the Los Angeles area where they lived and held themselves out as husband and\nwife until Charles\xe2\x80\x99 death. They had one child, Kimberly Hafner, born December 10, 1964.\nOn September 27, 1973, Charles was seriously injured in an automobile accident which left him with\npermanent physical disabilities and brain damage that rendered him incapable of employment.\nDuring the nine months in the hospital and his subsequent recovery period, Helen faithfully\nattended to his needs as his wife and continued to do so for some nine years until his death.\nCharles and Helen accumulated approximately $69,000 in hospital and doctor bills as a result of the\naccident. Those bills were not paid until Charles\xe2\x80\x99s personal injury action was settled for $900,000, in\n1975, which netted decedent $600,000 after attorney\xe2\x80\x99s fees. Helen and her attorney, Charles Weldon,\nwere appointed as Charles\xe2\x80\x99s co-conservators in 1975. The personal injury settlement was placed in\nconservatorship accounts and administered under court supervision. The conservatorship assets\nwere subsequently transferred to Charles\xe2\x80\x99 probate administrator following Charles\xe2\x80\x99s death.\nCharles Hafner died intestate on December 25, 1982, leaving an estate appraised at $416,472.40; his\nentire probate estate consists of the remainder of the proceeds of his personal injury settlement.\nJoan apparently learned of Charles\xe2\x80\x99s personal injury in 1974; she was not able financially to visit him\nfollowing his accident. Joan learned of Charles\xe2\x80\x99s death a few days after Christmas, 1982; she did not\nattend his funeral and did not know where it was.\nPetitions for letters of administration were filed by Helen and by Joan on January 21 and February\n14, 1983, respectively. By stipulation the competing petitions were taken off calendar and a bank was\nappointed administrator. The bank administrator is not a party to this appeal.\nHelen filed a petition for determination of entitlement to estate (former \xc2\xa7 1080), claiming to be the\nsurviving wife of Charles and seeking to have the probate court determine the persons entitled to\nshare in the distribution of Charles\xe2\x80\x99s estate.\nAppellants (Joan and the three daughters) filed a response to the petition and a statement of interest,\nasserting their respective claims to a share of Charles\xe2\x80\x99 estate, as his surviving spouse and children,\npursuant to section 221. Kimberly Hafner, a child of Charles, also filed a statement of interest in the\nstate.\nAppellants claimed that they, together with Kimberly, should succeed to Charles\xe2\x80\x99 entire estate under\nsection 221, and that even if Helen were found to be a good faith putative spouse the court should,\nunder equitable principles, divide the estate among them.\nPursuant to stipulations without prejudice by Joan and Helen, acting through their attorneys and\nfiled in the cause, Helen was awarded a family allowance of $1,800 per month from and after the\ndate of Charles\xe2\x80\x99s death. Later, and commencing November 1, 1983, a family allowance of $1,800 per\nmonth was ordered payable to Helen and a family allowance of $400 per month was ordered payable\nto Joan, both until trial of the petition for determination of heirship. Such stipulations were\nexpressly without prejudice to either Joan or Helen in their respective positions in the controversy\nand with the provision that all such allowances should be charged in full against such person\xe2\x80\x99s\ndistributive share of the estate, and would not otherwise be reimbursed.\n80\n\n\x0cHelen\xe2\x80\x99s petition came on for a nonjury trial on January 12, 1984. Following the conclusion of the\ntrial, the court rendered its statement of decision, on February 1, 1984, in which it concluded that\nHelen had a legal right to succeed to Charles\xe2\x80\x99s entire estate as his surviving spouse under Probate\nCode section 201. The court also concluded that Helen was Charles\xe2\x80\x99 good faith putative spouse and\nthat it would be inequitable to deny her Charles\xe2\x80\x99 entire estate.\nOn February 27, 1984, the court made and entered its judgment determining entitlement to estate\ndistribution and order for family allowance, in accordance with its statement of decision. Appellants\nand Kimberly Hafner filed timely notices of appeal from that judgment.\nContentions\nAppellants contend that (1) the trial court erred in awarding the entire estate to the putative spouse,\nHelen, in the absence of an estoppel against the wife, Joan, and Charles\xe2\x80\x99 children; (2) the trial court\nimproperly applied equities so as to disinherit the wife and children of the decedent in favor of his\nputative spouse; and (3) the trial court\xe2\x80\x99s decision as to the family allowance was erroneous as a\nmatter of law, and was not supported by the evidence.\nDiscussion\nThe Findings\nThe trial court\xe2\x80\x99s statement of decision set forth certain findings upon which its decision and the\njudgment were based. Among these findings are:\n1. Joan and Charles were legally married on June 12, 1954; neither Joan nor Charles ever obtained\ndivorce, annulment, or other dissolution of their marriage; Joan never knew of Charles\xe2\x80\x99 marriage to\nHelen until his death; and three daughters were born of their marriage.\n2. Helen and Charles participated in a marriage ceremony in Tijuana, Mexico, in 1962, and another\nmarriage ceremony in Las Vegas, Nevada, on October 14, 1963; at all times to and including Charles\xe2\x80\x99\ndeath Helen believed in good faith that her marriage with Charles was valid and that Charles had\npreviously obtained a valid divorce from his wife; at all times on and after October 14, 1963, Helen\nwas a good faith putative spouse of Charles; the marriage of Helen and Charles was invalid [void] in\nthat the prior marriage of Joan and Charles was an existing marriage; Charles and Helen had one\nchild.\n3. The entire estate of Charles consists of the remainder of the proceeds of Charles\xe2\x80\x99 personal injury\nsettlement.\n4. Joan is not estopped by any act or omission on her part to assert the invalidity of the [void]\nmarriage of Charles and Helen. (Italics in statement of decision.)\n5. Joan, by reason of privity with Charles, would be estopped to challenge the validity of Charles\xe2\x80\x99s\nmarriage to Helen because of Charles\xe2\x80\x99s misrepresentation to Helen regarding his divorce from Joan.\nThe three daughters of Joan and Charles, Catherine, Lillian, and Dorothy would be estopped for the\nsame reason.\n81\n\n\x0cThe Status of the Parties\nJoan Hafner was, at all times from June 12, 1954, until the death of Charles, the wife (spouse) of the\ndecedent, Charles Hafner. The trial court properly found that Joan and Charles were married, each\nfor the first time, on June 12, 1954, and that neither had ever taken any steps to dissolve their\nmarriage.\nCharles Hafner was, at all times from June 12, 1954, until his death, the husband (spouse) of Joan\nHafner. We note that Charles was not the putative spouse of Helen. That status belongs only to the\nparty or parties to a void marriage who the trial court finds to have believed in good faith in the\nvalidity of the void marriage. (Civ. Code \xc2\xa7 4452). The trial court did not so find in this case.\nHelen was the putative spouse (Civ. Code \xc2\xa7 4452) of Charles from October 14, 1963, until his death.\nCatherine Kotsay, Lillian Mayorga and Dorothy Hafner, the three daughters of Joan and Charles,\nand Kimberly Hafner, the daughter of Helen and Charles, were all children of decedent Charles\nHafner.\nThe Character of the Property\nWe must view the character of the property in Charles\xe2\x80\x99s intestate estate from the perspectives of the\nsurviving wife and the surviving putative spouse.\n(a) From the Perspective of Joan\nAs to Joan, the entire probate estate was the separate property of Charles, the decedent.\nCharles was a married person, married to Joan, and was living separate from her at the time the\nmoney was received by him in 1975, pursuant to the settlement of his claim for damages for\npersonal injury.\nAt the time Charles\xe2\x80\x99s personal injury settlement money was received, in 1975, Civil Code section\n5126 provided, in pertinent part: \xe2\x80\x9c(a) All money ... received by a married person ... for damages for\npersonal injuries ... pursuant to an agreement for the settlement or compromise of a claim for such\ndamages is the separate property of the injured person if such money ... is received ...:... (2) While\neither spouse, if he or she is the injured person, is living separate from the other spouse.\xe2\x80\x9d\nCivil Code section 5126 is consonant with Civil Code section 5118 which provides, in pertinent part:\n\xe2\x80\x9cThe earnings and accumulations of a spouse ... while separate and apart from the other spouse, are\nthe separate property of the spouse.\xe2\x80\x9d\n(b) From the Perspective of Helen\nAs to Helen, the entire probate estate is quasi-marital property.\nThe trial court found that Helen was the putative spouse of Charles. At the time of the events of this\ncase, former section 4452 of the Civil Code, a part of The Family Law Act enacted in 1969,\nprovided, in pertinent part: \xe2\x80\x9cWhenever a determination is made that a marriage is void or voidable\nand the court finds that either party or both parties believed in good faith that the marriage was\n82\n\n\x0cvalid, the court shall declare such party or parties to have the status of a putative spouse, and, if the\ndivision of property is in issue, shall divide, in accordance with Section 4800, that property acquired\nduring the union which would have been community property or quasi-community property if the\nunion had not been void or voidable. Such property shall be termed \xe2\x80\x98quasi-marital property.\xe2\x80\x9d\xe2\x80\x99\nPrinciples Applicable to Intestate Succession to Quasi-Marital Property of a Void Marriage\nIt is settled that in the case of a void or voidable marriage, as between a putative spouse and the\nother spouse, or as between the surviving putative spouse and the heirs of his or her decedent other\nthan the decedent\xe2\x80\x99s surviving legal spouse, the putative spouse is entitled to share in the property\naccumulated by the partners during their void or voidable marriage. It is also settled that the share to\nwhich the putative spouse is entitled is the same share of the quasi-marital property as the spouse\nwould receive as an actual and legal spouse if there had been a valid marriage, i.e., it shall be divided\nequally between the parties. (Estate of Leslie, supra., 37 Cal.3d 186, 194 [207 Cal. Rptr. 561, 689 P.2d\n133]; Civ. Code \xc2\xa7\xc2\xa7 4452, 4800 subd. (a)).\nThe proportionate contribution of each of the parties to the property acquired during the void or\nvoidable union is immaterial in this state because it is divided as community property would be\ndivided upon the dissolution of a valid marriage. (Vallera v. Vallera (1943) 21 Cal.2d 681, 683-684\n[134 P.2d 761]).\nThese principles were established by numerous judicial decisions, and were made a part of our\npositive law by the enactment, in 1969, of Civil Code section 4452, a part of the Family Law Act,\neffective January 1, 1970. There is no reason to believe that the Legislature, by that enactment,\nintended to change those principles. (Cf. Marvin v. Marvin (1976) 18 Cal. 3d 660, 681 [134 Cal. Rptr.\n815, 557 P.2d 106]).\nThe Trial Court Erred in Awarding the Entire Intestate Estate to the Putative Spouse\nWe have examined the cases cited by the trial court as authorities for its decision and find them\nwanting. None of the cited cases is authority for a decision on the facts and issues which were\nbefore the trial court in the case at bench.\nThe language used in an opinion is to be understood in the light of the facts and the issues then\nbefore the court, and cases are not authority for propositions not considered therein and actually\nadjudicated. (Code Civ. Proc., \xc2\xa7 1911; People v. Ceballos (1974) 12 Cal.3d 470, 484 [116 Cal. Rptr. 233,\n526 P.2d 241]; McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal. 2d 33, 38 [4 Cal. Rptr. 176,\n351 P.2d 344; Coats v. Coats (1911) 160 Cal. 671, 679 [118 P. 441]; Karlin v. Zalta (1984) 154 Cal. App.\n3d 953, 976 [201 Cal. Rptr. 379]; (and see authorities collected at 9 Witkin, Cal. Procedure (3d ed.\n1985) Appeal, \xc2\xa7 783, pp. 753-755.)\nThe principle issue before the court in this case is, as between the surviving wife and children of the\ndecedent, on the one hand, and the decedent\xe2\x80\x99s good faith putative spouse under his bigamous\nmarriage, on the other, who is entitled to succeed to his intestate estate?\nThe trial court found and concluded that under the circumstances of this case, Helen had a legal\nright to succeed to the entire estate under Probate Code section 201 as a surviving spouse. In\n83\n\n\x0csupport of that conclusion, the court cited Estate of Krone (1948) 83 Cal. App.2d 766 at page 770 [189\nP.2d 741], Estate of Foy (19520 109 Cal.App.2d 329 [240 P.2d 685], Speedling v. Hobby (D.C. Cal. 1955)\n132 F. Supp. 833, and Kunakoff v. Woods (1958) 166 Cal.App.2d 59, 67 [332 P.2d 773]; and then\nsought to buttress its decision by also citing Union Bank & Trust Co. v. Gordon 91953) 116 Cal.app.2d\n681, 689 [254 P.2d 644]; Estate of McAfee (1960) 182 Cal.App.2d 553, 556-557 [6 Cal. Rptr. 79]; Estate\nof Long (1961) 198 Cal. App. 2d 732, 738 [18 Cal. Rptr. 105]; Estate of Goldberg (1962) 203 Cal. App.2d\n402 [21 Cal. Rptr. 626].\nWith one exception, none of the cases relied upon by the trial court presented a fact situation similar\nto the facts of the case at bench, and the facts of that one exception (Union Bank & Trust Co. v.\nGordon), supra., are so clearly and fairly distinguishable from the facts of this case that it is not\nprecedent or authority supporting the trial court\xe2\x80\x99s decision.\nUnion Bank & Trust Co. v. Gordon, supra., 116 Cal. App.2d 681, was in fact a contest between Sara, the\nfirst wife of Leo, the decedent, and Elsie, Leo\xe2\x80\x99s putative wife. The bank was special administrator of\nLeo\xe2\x80\x99s estate which consisted entirely of property which Leo and Elsie had accumulated during their\n21-year putative marriage and was in the nature of community property. Sara and Leo had married in\nNew York in 1921, and Sara obtained a decree of separate maintenance in 1927. In 1928 Leo moved\nto California, and in 1929 he sued Sara for divorce in Nevada and obtained a decree of divorce; Sara\nwas served in that action. In 1929, Leo married Elsie and lived with her as husband and wife until he\ndied in 1950. In 1936, Sara married Milton, and in 1949 she obtained an annulment of that 13-year\nmarriage on the ground of fraud. In an action to quiet title to the property in Leo\xe2\x80\x99s estate, the court\nheld that Sara was estopped \xe2\x80\x9cby every principle of law and equity from attacking the Nevada decree\nor asserting its invalidity\xe2\x80\x9d (id., at p. 689) because she had acquiesced in and relied upon it when she\nmarried Milton. The court also found that Leo and Elsie had a good faith putative marriage, and that\nthe property was acquired during that union. Leo had disposed of his interest in it by will.\nIn its decision in the case at bench, the trial court relied principally upon Estate of Krone, supra, 83 Cal.\nApp.2d 755.\nIn Estate of Krone, supra, 83 Cal. App.2d 766, three adult children of decedent by a previous marriage\nfiled a claim of interest in their father\xe2\x80\x99s estate declaring that the property of the estate was the\nseparate property of the decedent in that his surviving wife was not his lawful wife because at the\ntime of their marriage her divorce from her former husband had not become final, though a final\ndecree was entered 10 months later. The surviving wife also filed a statement of claim of interest\nalleging that she and decedent had been married in April 1934, and lived together as husband and\nwife until his death in 1946, and alleging other facts which were set forth in the findings of the trial\ncourt.\n\xe2\x80\x9cThe court found that [decedent and his wife had] lived and cohabited as man and wife from the\ndate of their attempted marriage until decedent\xe2\x80\x99s death; that at the time of such marriage neither had\nany property; that as a result of their joint efforts the parties accumulated personal property of the\nvalue of $16,412.51; that at the time of her marriage appellant believed in good faith and that she\nwas the lawfully wedded wife of decedent, due to her ignorance of the law which required the lapse\nof one year after the entry of an interlocutory decree; that she had obtained an interlocutory decree\nfrom her former husband February 13, 1934, and that the final judgment therein was not entered\nuntil February 19, 1935, or 10 months after her purported marriage to decedent; that she had no\ninformation of any claim of illegality of her marriage to decedent until the filing by respondents of\n84\n\n\x0ctheir claim to an interest in the estate;....\xe2\x80\x9d (Id., at p. 767.)\nOn appeal, the reviewing court implicitly found that the decedent and his surviving wife were\npartners to a putative marriage. The court stated that \xe2\x80\x9c[t]he term [\xe2\x80\x99putative marriage\xe2\x80\x99] is applied to a\nmatrimonial union which has been solemnized in due form and celebrated in good faith by both\nparties but which by reason of some legal infirmity is either void or voidable. The essential basis of\nsuch marriage is the belief that the marriage is valid. (Vallera v. Vallera (1943) 21 Cal.2d 681, 684)\xe2\x80\x9d\n(Estate of Krone, supra, 83 Cal. App.2d at p. 768). The court then reviewed several cases dealing with\nthe division of property acquired due to the joint efforts of the partners during a void or voidable\nmarriage entered into in good faith, and concluded \xe2\x80\x9cthat upon the dissolution of a putative marriage\nby decree of annulment or by death the [surviving spouse] is to take the same share to which [he or\nshe] would have been entitled as a legal spouse.\xe2\x80\x9d (Id., at p. 769.)\nIn Estate of Foy, supra, 109 Cal. App.2d 329, the contesting parties were the putative spouse (wife) of\nthe decedent and the decedent\xe2\x80\x99s son by a prior marriage. Decedent\xe2\x80\x99s marriage to his putative wife\nhad been celebrated in the interlocutory period following his divorce from his prior wife. Decedent\ndied intestate; his estate consisted entirely of property in the nature of community property. The\ncourt held that the putative wife/widow was entitled to take the entire estate under former Probate\nCode section 201. (Id., at pp. 331-332.)\nSpeedling v. Hobby, supra., 132 F.Supp. 833, was a controversy between a surviving putative spouse\n(wife) and the Secretary of Health, Education and Welfare as to whether the putative wife/widow\nhad the same status in taking intestate property as a widow would have and would therefore be\neligible to receive \xe2\x80\x9cmother\xe2\x80\x99s insurance benefits\xe2\x80\x9d under the social security act. Citing Krone, supra, 83\nCal. App.2d at 766, the United States District Court held that a putative spouse was entitled to\nsucceed to \xe2\x80\x9ccommunity property\xe2\x80\x9d in California and therefore entitled to the social security benefit.\nThe putative spouse and decedent had married during the interlocutory period following a divorce,\nand had lived together for 18 years until decedent\xe2\x80\x99s death.\nKunakoff v. Woods, supra., 116 Cal. App.2d 59, was an action for wrongful death and the question was\nwhether a putative spouse (wife) was an \xe2\x80\x9cheir\xe2\x80\x9d within the meaning of the statutory wrongful death\nlaw. (Code Civ. Proc., \xc2\xa7 377). Citing Krone, supra., the court held that, in the case of intestacy, the\nputative spouse could succeed to her \xe2\x80\x9chusband\xe2\x80\x99s\xe2\x80\x9d estate under former Probate Code section 201,\nand that, therefore, she was an \xe2\x80\x9cheir\xe2\x80\x9d and as such was entitled to bring an action for wrongful death\nunder Code of Civil Procedure section 377. Estate of McAfee, supra., 182 Cal. App.2d 553, is not\nauthority for anything relating to this case. McAfee was an appeal from an order appointing an\nadministrator of an estate. The reviewing court reversed the order, pointing out that the trial court\nhad failed to make findings, or had made conflicting findings, on material issues. The court\nmentioned Estate of Krone, supra, 83 Cal. App.2d 766, in commenting that the trial court would have\nto find whether the decedent was legally married and, if not, whether there was a putative marriage.\n(Id., at pp. 556-557.)\nEstate of Long, supra., 198 Cal. App.2d 732, was an appeal from an order decreeing final distribution\nof an estate. It presented a contest between the half-siblings of the decedent and the decedent\xe2\x80\x99s\nsurviving wife, Emma. The half-siblings questioned whether Emma was legally divorced from her\nformer husband at the time of her marriage to decedent. Ruling that the presumption of validity of\nthe second marriage had not been overcome, the court held that Emma and decedent were validly\nmarried, that except for a few items their property had been acquired through their joint efforts, and\n85\n\n\x0cthat all of the property should be distributed to Emma except for decedent\xe2\x80\x99s separate property and\nthat one-half of the separate property be distributed to her. In dictum, the court cited Krone, supra.,\nand stated that if there had been a putative marriage between Emma and decedent, Krone would have\napplied. (Id., at p. 738.) The Court of Appeal affirmed.\nEstate of Goldberg, supra., 203 Cal. App. 2d 402, was a contest between Edith, the second wife of Sam,\nand three of Sam\xe2\x80\x99s children by his first marriage, for succession to Sam\xe2\x80\x99s intestate estate. The\nreviewing court affirmed the trial court\xe2\x80\x99s ruling that Edith was Sam\xe2\x80\x99s good-faith putative spouse and,\nciting Krone, supra., ruled that Edith was entitled to the same share of the \xe2\x80\x9ccommunity property\xe2\x80\x9d as\nshe would have received had she been his actual wife.\nIn sum, except for Union Bank & Trust Co. v. Gordon, supra., 116 Cal.2d 681, which is clearly\ndistinguishable from this case because of its facts compelling an estoppel, none of the cases relied\nupon by the trial court present the facts and issues with which we are concerned, i.e., the competing\ninterests of a legal wife and a putative spouse. In Krone, Foy, and Goldberg, the controversy was\nbetween a putative spouse and the decedent\xe2\x80\x99s children by a prior marriage. In Long, the competing\ninterests were a legal wife and the decedent\xe2\x80\x99s half siblings. Speedling stands only for the proposition\nthat a putative wife may be eligible for certain social security benefits based upon her decedent\n\xe2\x80\x9cspouse\xe2\x80\x99s\xe2\x80\x9d earnings, and Kunakoff establishes only that a putative spouse can be a plaintiff in a\nwrongful death action. McAfee stands for nothing relevant to the case at bench.\nFive additional cases cited by the trial court are of even lesser relevance to the case at bench than the\ncases reviewed above, and do not require discussion in this opinion. Thus, we find that the cases\nrelied upon by the trial court do not support its decision and the judgment appealed from.\nAs Between the Surviving Spouse and Children of a Decedent and the Decedent\xe2\x80\x99s Putative\nSpouse, the Surviving Spouse and Children Are Entitled to Succeed to the Separate Property\nin an Intestate Decedent\xe2\x80\x99s Estate\nWe bear in mind that the issue presented in the case at bench is the proper resolution of the\ncompeting interests of the legal wife of a decedent, and his putative wife, for succession to his\nintestate estate.\nIn Estate of Leslie, supra., 37 Cal.3d 186, our Supreme Court, in deciding a contest between the\nsurviving putative spouse of an intestate decedent and the children of that decedent by a prior\nmarriage, observed that \xe2\x80\x9c[t]here may be cases in which two or more surviving spouses each claim an\nintestate share of the decedent\xe2\x80\x99s separate property. However, that scenario is not before this court\nand need not be resolved at this time.\xe2\x80\x9d (Id., at p. 197, fn. 11.) The case at bench is such a case, and\nwe find substantial public policy and precedent to establish and protect the rights of the legal\nspouse, and the children of the legal community, in the estate of their spouse and parent.\nWe first note that marriage and the family are highly favored by the public policy of the State of\nCalifornia, as evidenced by statute and by countless decisions of our courts.\nIn decisions resolving competing claims of legal spouses of decedents and the decedents\xe2\x80\x99 putative\nspouses, as to the right to succeed to the decedent\xe2\x80\x99s estate, our courts have awarded one-half of the\nquasi-marital property to the putative spouse and the rest of the property to the decedent\xe2\x80\x99s legal\nheirs or as disposed of by decedent\xe2\x80\x99s will.\n86\n\n\x0cIn Estate of Ricci (1962) 201 Cal.App.2d 146 [19 Cal. Rptr. 739], the contest was between Viola, the\nfirst and legal wife of Henry, and his putative spouse, Antoinetta. At issue was heirship to the\nproperty of decedent which had been acquired as the result of the joint efforts of decedent and\nAntoinetta during the years of their void marriage. Viola and Henry were married in Italy in 1907;\nthat marriage was never terminated and remained in force until Henry\xe2\x80\x99s death in 1956. Meanwhile,\nHenry came to California. Antoinetta, in good faith, participated in a ceremonial marriage with\nHenry in 1919. Henry and Antoinetta lived together as husband and wife continuously thereafter\nuntil Henry died, intestate, in 1956. The trial court found, inter alia, that Antoinetta was the\nsurviving putative wife of Henry, that the presumption of the validity of the second marriage had\nbeen overcome, and that there was no basis in the evidence for an estoppel against Viola. The trial\ncourt decreed that one-half of the property should be awarded to Viola and the other half to\nAntoinetta. The Court of Appeal concluded that the decision of the trial court was supported by the\nevidence and the law and affirmed the decree.\nIn its opinion, the reviewing court quoted extensively from Burby, Family Law for California\nLawyers, at pages 359-360, setting forth his comments on the problems arising in the distribution of\nproperty accumulated in a void or voidable marriage. Professor Burby had written: \xe2\x80\x9c\xe2\x80\x99Some difficulty\nis presented if conflicting claims are asserted by a legally recognized spouse and a putative spouse.\nOf course the claim of a putative spouse must be limited to property acquired during the\ncontinuance of that relationship. It seems obvious that one-half of the property in question belongs\nto the putative spouse. The other half belongs to the legal community (husband and legally\nrecognized spouse) and should be distributed as any other community property under the same\ncircumstances.\n\xe2\x80\x9cA putative marriage was involved in Estate of Krone. The property in question was acquired during\nthe continuance of this relationship and was claimed by the putative wife after the death of the\nhusband. Her claim was resisted by issue of a former marriage. The court held that all of the\nproperty in question passed to the putative spouse by force of Probate Code section 201, which\nprovides: \xe2\x80\x9cUpon the death of either husband or wife, one-half of the community property belongs\nto the surviving spouse; the other half is subject to the testamentary disposition of the decedent, and\nin the absence thereof goes to the surviving spouse ....\xe2\x80\x9d The conclusion reached by the court seems\nto be a proper one. The claimants (husband\xe2\x80\x99s issue by a former marriage) would be entitled to\nrecover only on the theory that the property in question constituted a part of the husband\xe2\x80\x99s separate\nestate. But the property in question was not of that type.\xe2\x80\x9d\n\xe2\x80\x9cA much more difficult problem would be raised if a claim were asserted by a legally recognized\nspouse. That was the situation involved in Union Bank & Trust Co. v. Gordon [supra.] 116 Cal.App.2d\n681. The deceased husband devised and bequeathed one-half of the property acquired during the\nputative marriage to his putative wife, Elsie, and one-half to his children. The legally recognized wife\nclaimed a right to share in his estate. This claim was denied. [The trial court held, inter alia, that the\nlegal wife] was estopped to deny the validity of the putative marriage because after her purported\ndivorce (it was void because secured by the husband in Nevada and without having established a\nsufficient domicile) she purported to enter into another marriage. In the absence of the argument\nthat she was estopped to deny the validity of the husband\xe2\x80\x99s putative marriage, there is no sound\nreason for excluding the legally recognized spouse from her share in acquisitions made by her\nhusband during a putative marriage. It is true that one-half of the property belongs to the putative\nspouse but the other half belongs to the legally recognized community and there is no basis upon\n87\n\n\x0cwhich the legally recognized spouse can be excluded from a proper share therein.\xe2\x80\x9d (Estate of Ricci,\nsupra., 201 Cal. App. 2d at pp. 148-150). (Estate of Ricci, supra, 201 Cal. App.2d at pp. 148-150).\nThe Ricci court went on to say: \xe2\x80\x9cThe case of Union Bank & Trust Co. v. Gordon, supra., in which it was\nheld that the legal wife was not entitled to share in the estate of her deceased husband was correctly\ndecided on the basis of estoppel, but, as we analyze the authorities, the legal wife could not have\nbeen excluded without the estoppel. To do so could penalize an innocent wife who had been\ndeserted by her husband, and would be contrary to section 201 of the Probate Code which states\nthat \xe2\x80\x98Upon the death of either husband or wife, one-half of the community property belongs to the\nsurviving spouse; ...\xe2\x80\x99 Here there are no facts in the record justifying the application of the doctrine of\nestoppel.\xe2\x80\x9d (Id., at p. 150.)\n\xe2\x80\x9cIn conclusion we agree with the following statement of the learned trial judge in his memorandum\nopinion: \xe2\x80\x98Yet under the case law of this state it seems clear that each of the two widows absent of\nthe other is entitled to the whole estate. Thus, in a contest between them it would seem both logical\nand equitable to divide the property equally, awarding the putative wife the half to which she\n[presumably] contributed and giving to the legal but deserted wife the half over which the husband\nnormally has testamentary control.\xe2\x80\x99\xe2\x80\x9d (Id., at pp. 151-152.)\nSousa v. Freitas (1970) 10 Cal. App.3d 660 [89 Cal. Rptr. 485], was a contest between Maria, the legal\nwife of Manuel, and Catherine, his putative spouse, as to the property of Manuel\xe2\x80\x99s estate, all of\nwhich had been acquired by the joint efforts of Manuel and Catherine during their void marriage.\nMaria and Manuel Sousa were married in Portugal in 1905; they had one son. Manuel emigrated to\nCalifornia in 1908, changed his name to Freitas in 1915, and participated in a marriage ceremony\nwith Catherine in 1919. Catherine believed in good faith that she was lawfully married to Manuel and\nlived with him as wife and husband until Manuel died in 1962. Manuel left a will devising and\nbequeathing all of his property to Catherine. The trial court awarded the estate one-half to Maria and\none-half to Catherine. The Court of Appeal modified the judgment holding that Catherine was\nentitled to one-half, being her share as a good-faith putative spouse, and the other half belonged to\nthe legal community of Manuel and Maria. Manuel had a right to dispose of one-half of that half by\nhis will, but the other half, one-fourth of the gross estate, belonged to Maria. As authority, the Court\nof Appeal cited Estate of Ricci and quoted from Professor Burby\xe2\x80\x99s comments as set forth in Ricci,\nabove.\nEstate of Atherley (1975) 44 Cal.App.3d 758 [119 Cal. Rptr. 41, 81 A.L.R.3d 97], was a contest\nbetween Ruth, the legal wife of Harold, and his putative wife, Annette, for determination of heirship\nto Harold\xe2\x80\x99s intestate estate. Ruth and Harold were married in 1933 and had two children. Harold left\nRuth in 1947 and joined Annette. Harold and Annette lived together from 1947 until Harold\xe2\x80\x99s death\nin 1969; they had no children. In 1961 Harold obtained an invalid divorce from Ruth in Mexico, and\nin 1962 Harold married Annette in Nevada. Ruth, Harold, and Annette were in touch with each\nother from time to time; they shared in common the knowledge of Harold\xe2\x80\x99s marriage with Ruth, his\ncohabitation with Annette, his invalid divorce from Ruth and his void marriage with Annette. Most\nof Harold\xe2\x80\x99s estate had been accumulated during the period of his cohabitation with Annette, both\nbefore and after the void Mexican divorce and Nevada marriage. The trial court held that Ruth was\nthe surviving spouse and implicitly held that Annette was Harold\xe2\x80\x99s putative spouse. The estate was\ncomprised of a mixture of real and personal property, including separate property and joint tenancy\nproperty. The Court of Appeal, applying the rule of Sousa v. Freitas, supra., 10 Cal. App.3d 660, held\nthat Annette, the putative spouse, was entitled to one half of the total estate as well as those assets\n88\n\n\x0cwhich were hers by separate ownership or joint tenancy survivorship, and that the rest of the estate\nwas property of the legal marriage and passed by intestate succession; that Ruth had an interest in\nthat property as the surviving spouse but, since Ruth and Harold had two children, the extent of her\ninterest depended on whether it was community or separate property. The judgment was reversed in\npart with directions.\n3.2.2\n\nCommon Law Spouse\n\nUnlike the putative spouse, persons in common law relationships know that they are not in\ntraditional legal marriages. Nonetheless, if one of the persons in the relationship dies, the person\nwho survives may expect to be considered a surviving spouse for intestacy purposes.\n\nIn re Estate of Duval, 777 N.W.2d 380 (S.D. 2010)\nMEIERHENRY, Justice.\nNathalie Duval-Couetil and Orielle Duval-Georgiades (Daughters) appeal the circuit court\xe2\x80\x99s\njudgment that Karen Hargrave (Hargrave) was the common-law wife of their father, Paul A. Duval\n(Duval). Daughters contend the circuit court erred when it held that Duval and Hargrave entered\ninto a common-law marriage under the laws of Mexico and Oklahoma. We agree and reverse the\ncircuit court.\nFACTS AND BACKGROUND\nDuval and Hargrave began living together in Massachusetts in 1994. In 1995, Duval acquired a\nhome in Custer, South Dakota. Hargrave moved from Massachusetts to Duval\xe2\x80\x99s home in South\nDakota in 1996. In 1997, Duval and Hargrave began a yearly routine of spending the summer\nmonths in Custer and the winter months in Mexico. In 1998, Duval and Hargrave bought a home\ntogether in Nuevo Leon, Mexico, as husband and wife.\nIn 2005, Duval was assaulted while in Mexico and placed in an intensive care unit for his injuries.\nHargrave lived with Duval at the hospital while he was being treated. She later took Duval to\nOklahoma for rehabilitation at a hospital in the Tulsa area and eventually to Rochester, Minnesota,\nfor medical treatment at Mayo Clinic. Duval and Hargrave subsequently returned to Oklahoma for a\nperiod of time; and then, resumed their annual routine of spending winters in Mexico and summers\nin Custer. Duval was killed as a result of a rock climbing accident on June 24, 2008, in Custer\nCounty, South Dakota.\nDuval and Hargrave never formally married. Hargrave testified that she and Duval had discussed a\nformal wedding ceremony, but mutually decided against it. She said they did not think they needed\nto marry because they held themselves out as husband and wife and felt like they were married. The\ncircuit court specifically found that over the course of Duval and Hargrave\xe2\x80\x99s relationship, Duval\nreferred to Hargrave as his wife on an income tax return form, designated her as the beneficiary on\nhis VA health benefits application, and executed a general power of attorney in her favor.\n\n89\n\n\x0cThe circuit court ultimately concluded that Hargrave had established that she and Duval met the\nrequirements for a common-law marriage under the laws of both Mexico and Oklahoma. As such,\nHargrave was treated as Duval\xe2\x80\x99s surviving spouse for inheritance purposes in South Dakota.\nDaughters appeal. Daughters\xe2\x80\x99 main issue on appeal is whether the circuit court erroneously\nrecognized Hargrave as Duval\xe2\x80\x99s surviving spouse entitling her to inherit from his estate. They claim\n(1) that the South Dakota domicile of Duval and Hargrave precluded them from entering into a\ncommon-law marriage in either Mexico or Oklahoma, (2) that South Dakota law does not recognize\na Mexican concubinage as a marriage, and (3) that Hargrave and Duval had not entered into a\ncommon-law marriage under Oklahoma law.\nANALYSIS\nThe relevant facts are not in dispute. Because the issues involve questions of law, our review is de\nnovo. Sanford v. Sanford, 2005 SD 34, 12, 694 N.W.2d 283, 287. The first issue centers on whether\nSouth Dakota will give effect to a common-law marriage established by South Dakota domiciliaries\nwhile living in a jurisdiction that recognizes common-law marriage.\nCommon-Law Marriage\nCommon-law marriages were statutorily abrogated in South Dakota in 1959 by an amendment to\nSDCL 25-1-29. Notwithstanding, Hargrave contends that South Dakota continues to recognize valid\ncommon-law marriages entered into in other jurisdictions. Hargrave relies on SDCL 19-8-1, which\nprovides that \xe2\x80\x9c[e]very court of this state shall take judicial notice of the common law and statutes of\nevery state, territory, and other jurisdiction of the United States.\xe2\x80\x9d Id. In addition to taking judicial\nnotice of the common-law of other states, the South Dakota Legislature specifically addressed the\nvalidity of marriages entered into in other jurisdictions in SDCL 25-1-38. This statute provides that\n\xe2\x80\x9c[a]ny marriage contracted outside the jurisdiction of this state ... which is valid by the laws of the\njurisdiction in which such marriage was contracted, is valid in this state.\xe2\x80\x9d Id. In view of these\nstatutes, we conclude that a common-law marriage validly entered into in another jurisdiction will be\nrecognized in South Dakota.\nDaughters argue that the domicile of the couple controls their ability to enter into a common-law\nmarriage. Daughters urge this Court to adopt a rule requiring parties to a common-law marriage to\nbe domiciled in the state in which the marriage occurred. Thus, a couple domiciled in South Dakota\ncould not be considered married merely by traveling to another state that recognizes common-law\nmarriage and meeting that state\xe2\x80\x99s common-law marriage requirements. Daughters further allege that\nat all relevant times, Duval and Hargrave were domiciled in South Dakota, thereby precluding them\nfrom entering into a common-law marriage in either Mexico or Oklahoma. Daughters cite Garcia v.\nGarcia as authority for the domicile requirement. 25 S.D. 645, 127 N.W. 586 (1910). In Garcia, we\nsaid that a marriage \xe2\x80\x9cvalid in the state where it was contracted, is to be regarded as valid in [South\nDakota].\xe2\x80\x9d Id. at 589. We do not interpret Garcia as requiring domicile in the state in which the\nmarriage occurred.\nThis is consistent with other jurisdictions that do not require parties to establish domicile in the state\nwhere the common-law marriage occurred. Minnesota courts have recognized common-law\nmarriages entered into in other jurisdictions. In Pesina v. Anderson, the court held it would \xe2\x80\x9crecognize\na common-law marriage if the couple takes up residence (but not necessarily domicile) in another\nstate that allows common-law marriages.\xe2\x80\x9d 1995 WL 387752 *2 (Minn. Ct. App. 1995) (quoting\n90\n\n\x0cLaikola v. Engineered Concrete, 277 N.W.2d 653, 658 (Minn. 1979)) (citations omitted). Similarly, in\nVandever v. Indus. Comm\xe2\x80\x99n of Ariz., the court stated that it \xe2\x80\x9cdisagree[d] with the legal reasoning of\ncases which hold that the policy of the domicile disfavoring common-law marriages should govern\nunless the couple has subsequently established residence in a state recognizing such marriages.\xe2\x80\x9d 148\nAriz. 373, 714 P.2d 866, 870 (1985). The Vandever court went on to state, \xe2\x80\x9c[t]hese cases effectively\nread a requirement of residency into the law of all common-law marriage states which may or may\nnot exist.\xe2\x80\x9d Id. See Grant v. Superior Court in and for County of Pima, 27 Ariz. App. 427, 555 P.2d 895,\n897 (1976) (\xe2\x80\x9cAlthough Arizona does not authorize common law marriage, it will accord to such a\nmarriage entered into in another state the same legal significances as if the marriage were effectively\ncontracted in Arizona.\xe2\x80\x9d). Mississippi has also recognized that \xe2\x80\x9c[t]he [domicile requirement] argument\nignores the basic right of all persons to choose their place of marriage. As long as they follow the\nrequirements of the law of the state of celebration, the marriage is valid in most jurisdictions.\xe2\x80\x9d George\nv. George, 389 So.2d 1389, 1390 (Miss. 1980). Likewise, Maryland \xe2\x80\x9chas continuously held that a\ncommon-law marriage, valid where contracted, is recognized in [Maryland].\xe2\x80\x9d Goldin v. Goldin, 48\nMd.App. 154, 426 A.2d 410, 412 (Md. Ct. Spec. App. 1981).\nIn addition to Garcia, the plain meaning of SDCL 25-1-38 does not require domicile in the foreign\njurisdiction in order for the marriage to be considered valid in South Dakota. Consequently, we hold\nthat South Dakota does not require domicile in the foreign jurisdiction before recognizing that\njurisdiction\xe2\x80\x99s common-law marriage scheme. All that is necessary for a marriage from another\njurisdiction to be recognized in South Dakota is for the marriage to be valid under the law of that\njurisdiction. See SDCL 25-1-38. Thus, the question in this case is whether Duval and Hargrave would\nbe considered validly married under the laws of either Nuevo Leon, Mexico, or Oklahoma.\nConcubinage in Mexico\nThe parties agree that Nuevo Leon, Mexico, has no common-law on which a common-law marriage\ncould be established. See In the Common Law of Mexican Law in Texas Courts, 26 Hous. J. Int\xe2\x80\x99l. L. 119,\n151-56 (2003)(citing Nevarez v. Bailon, 287 S.W.2d 521, 523 (Tex. Civ. App. 1956)). Nuevo Leon\ndoes, however, have a law that gives certain rights to persons who have entered into a concubinage.\nHargrave provided the state law of Nuevo Leon, which defines a concubinage as:\n[T]he union of a man and woman, free from formal matrimony, who for more\nthan five years make a marital life without being united in a formal matrimony\nunto the other as long as there is no legal impediment to their contracting it. The\nconcubine\xe2\x80\x99s gender union can have rights and obligations in reciprocal form, of\nsupport and inheritance, independently of all others recognized by this code or\nother laws.\nCompilacion Legislativa del Estado de Nuevo Leon, p 50, Book I of Persons, Title V of Matrimony,\nCh 11 of Concubinage, Art 291. The circuit court concluded that concubinages were to be given the\nsame legal effect as common-law marriages validly entered into in the United States. Daughters\nargue, however, that a concubinage is not the legal equivalent of a common-law marriage.\nOther courts that have addressed this issue have declined to equate a concubinage with a commonlaw marriage. In Nevarez, the court held a woman who cohabited with a man within the definition of\na concubinage was not entitled to claim any of the man\xe2\x80\x99s property after his death as his common-law\nwife because common-law marriage was not recognized in that Mexican state. 287 S.W.2d at 523.\n91\n\n\x0cThe court noted that under Mexican law a concubinage was a \xe2\x80\x9c \xe2\x80\x98legal union\xe2\x80\x99 but not a legal\nmarriage.\xe2\x80\x9d Id. Because the woman met the definition of a concubine, she was entitled to certain\nrights, but was not a common-law wife under the laws of Mexico. Id. Consequently, she was not\nentitled to the benefits given to a common-law wife in Texas \xe2\x80\x9cfor such a relationship [was] nonexistent in [Mexico],\xe2\x80\x9d and she would not \xe2\x80\x9cqualify in her home jurisdiction as a surviving wife.\xe2\x80\x9d Id. at\n525.\nA California court similarly addressed the issue of whether \xe2\x80\x9cconcubinage is equivalent to a Mexican\ncommon law marriage[.]\xe2\x80\x9d Rosales, 113 Cal.App. 4th at 1183, 7 Cal. Rptr.3d 13. In Rosales, a Mexican\ncitizen claimed she was the surviving spouse, for purposes of a wrongful death claim, of a deceased\nAmerican who was the father of her children. Id. The Rosales court, citing Nevarez, determined \xe2\x80\x9cthat\nalthough concubinage is a legal relationship in Mexico, it is not a legal marriage.\xe2\x80\x9d Id. at 1184, 7\nCal.Rptr. 3d 13. The Rosales court affirmed the trial court on this basis recognizing that\n\xe2\x80\x9cconcubinage is not equivalent to a common law marriage because it does not confer on the parties\nall of the rights and duties of marriage.\xe2\x80\x9d Id.\nWe are persuaded by the reasoning of Nevarez and Rosales and also conclude that a Mexican\nconcubinage is not the legal equivalent of a common-law marriage in the United States.\nConsequently, the circuit court erred in concluding the concubinage between Duval and Hargrave, if\none existed, had the same legal effect as a common-law marriage. Therefore, we reverse on this\nissue.\nCommon-Law Marriage in Oklahoma\nThe circuit court concluded that Duval and Hargrave entered into a valid common-law marriage\nwhile they lived in Oklahoma. The Oklahoma Court of Civil Appeals recently reaffirmed its\nrecognition of common-law marriages and its requirements. The court stated:\n[T]his Court recognizes in accordance with established Oklahoma case law that,\nabsent a marital impediment suffered by one of the parties to the common-law\nmarriage, a common-law marriage occurs upon the happening of three events: a\ndeclaration by the parties of an intent to marry, cohabitation, and a holding out\nof themselves to the community of being husband and wife.\nBrooks v. Sanders, 190 P.3d 357, 362 (Okla. Civ. App. 2008). In Brooks, the court referenced an earlier\nOklahoma case that explained the requirements of Oklahoma\xe2\x80\x99s common-law marriage as follows:\n\xe2\x80\x9c \xe2\x80\x98To constitute a valid \xe2\x80\x9ccommon-law marriage,\xe2\x80\x9d it is necessary that there should be an actual and\nmutual agreement to enter into a matrimonial relation, permanent and exclusive of all others,\nbetween parties capable in law of making such contract, consummated by their cohabitation as\nman and wife, or their mutual assumption openly of marital duties and obligations. A mere\npromise of future marriage, followed by illicit relations, is not, in itself, sufficient to constitute\nsuch marriage.\xe2\x80\x99 \xe2\x80\x9d\nId. at 358n. 2 (quoting D.P. Greenwood Trucking Co. v. State Indus. Comm\xe2\x80\x99n, 271 P.2d 339, 342 (quoting\nCavanaugh v. Cavanaugh, 275 P. 315)). Based on the language of these two cases, it appears that\nOklahoma requires (1) a mutual agreement or declaration of intent to marry, (2) consummation by\ncohabitation, and (3) publicly holding themselves out as husband and wife. Oklahoma law requires\n92\n\n\x0cthe party alleging a common-law marriage satisfy these elements by clear and convincing evidence.\nStandefer v. Standefer, 26 P.3d 104, 107 (citing Maxfield v. Maxfield, 258 P.2d 915, 921).\nThus, the first requirement Hargrave had to satisfy by clear and convincing evidence was that she\nand Duval had mutually agreed and/or declared their intent to marry while in Oklahoma. Brooks, 190\nP.3d at 362. \xe2\x80\x9cSome evidence of consent to enter into a common-law marriage are cohabitation,\nactions consistent with the relationship of spouses, recognition by the community of the marital\nrelationship, and declarations of the parties.\xe2\x80\x9d Standefer, 26 P.3d at 107 (citing Reaves v. Reaves, 82 P.\n490). The circuit court made no finding on mutual agreement or declaration of intent to marry, yet\nconcluded that Duval and Hargrave entered into a common-law marriage. We have said a circuit\ncourt \xe2\x80\x9cis not required to \xe2\x80\x98enter a finding of fact on every fact represented, but only those findings of\nfact essential to support its conclusions.\xe2\x80\x99 \xe2\x80\x9d In re S.K., 587 N.W.2d 740, 742 (quoting Hanks v. Hanks,\n334 N.W.2d 856, 858-59 (S.D. 1983)) A finding on whether the couple mutually agreed or declared\ntheir intent to marry while in Oklahoma was essential to support the circuit court\xe2\x80\x99s conclusion that\nthey entered into a common-law marriage. A review of the testimony may explain why the circuit\ncourt was unable to enter a finding of a mutual agreement or declaration of intent to enter into a\nmarital relationship.\nHargrave testified that she and Duval entered into an \xe2\x80\x9cimplicit agreement\xe2\x80\x9d to be married while they\nwere in Oklahoma. She also testified that \xe2\x80\x9cnobody said, okay, so we should agree to be married and\nwrite it down and put the date on it.\xe2\x80\x9d When asked on cross-examination if there was ever a point\nwhen she and Duval made an agreement to be married, Hargrave stated in the negative, and said the\ncouple just decided \xe2\x80\x9cwell, I guess we are [married].\xe2\x80\x9d\nThe Oklahoma Supreme Court addressed this issue under a similar situation and recognized the\nimportance of establishing a clear intent to marry. Standefer, 26 P.3d at 107-08. In Standefer, the court\nstated the \xe2\x80\x9cevidence [wa]s clear and convincing that both parties assented to a marriage on\nThanksgiving Day of 1988.\xe2\x80\x9d Both the husband and wife in Standefer agreed that they were commonlaw spouses as a result of their mutual assent to marry on that day. Significantly, the couple was able\nto identify an instance where they mutually assented to a marriage. This fact stands in contrast to the\npresent case where Hargrave\xe2\x80\x99s testimony established that no specific time existed when the couple\nmutually agreed or declared their intent to be married. To meet Oklahoma\xe2\x80\x99s requirements, their\nmutual agreement or declaration to marry would have to be more than an implicit agreement. This\nconsent requirement is consistent with SDCL 25-1-38, which sets forth the requirement that a\nmarriage must be \xe2\x80\x9ccontracted\xe2\x80\x9d in the other jurisdiction before South Dakota will recognize the\nmarriage as valid. SDCL 25-1-38 provides \xe2\x80\x9c[a]ny marriage contracted outside the jurisdiction of this\nstate ... which is valid by the laws of the jurisdiction in which such marriage was contracted, is valid in\nthis state.\xe2\x80\x9d Id. (emphasis added). Failing to establish that mutual assent or a declaration to marry\ntook place, Hargrave could not meet the first requirement for entering into a common-law marriage\nin Oklahoma as outlined by Brooks 190 P.3d at 362.\nThe absence of a finding of fact on this issue, coupled with Hargrave\xe2\x80\x99s testimony, leads to a\nconclusion that as a matter of law Hargrave could not prove by clear and convincing evidence that\nthe couple entered into a valid common-law marriage while in Oklahoma. Thus, no legal basis\nexisted to support the circuit court\xe2\x80\x99s conclusion that the parties entered into a common-law marriage\nin Oklahoma.\n\n93\n\n\x0cCONCLUSION\nBased on the foregoing, we conclude that Duval and Hargrave were not validly married under either\nMexico or Oklahoma law. Consequently, Hargrave cannot be considered a surviving spouse for\npurposes of inheriting from Duval\xe2\x80\x99s estate.\nWe reverse and remand to the circuit court for proceedings consistent with this opinion.\nNotes, Problems, and Questions\n1. Common law marriages are recognized in several states, including Colorado, Iowa, Kansas,\nMontana, New Hampshire, South Carolina, Texas, Utah, Alabama and Rhode Island. A few states\nlike Ohio, Illinois, New Jersey and Florida have statutes specifically stating that common law\nmarriages are not legally recognized. A person who meets the common law marriage requirements of\nState A and moves to State B, a state that does not recognize common law marriage, may still be\nconsidered to be a legal spouse by State B. See Grant v. Superior Court In and For Pima County, 555 P.2d\n895 (Ariz. App. 1976); Vaughn v. Hufnagel, 473 S.W.2d 124 (Ky. 1971); Estate of Booth v. Director,\nDivision of Taxation, 27 N.J. Tax. 600 (2014).\n2. What are the pros and cons of permitting persons in common law marriages to inherit on par with\nsurviving spouses of legal marriages? What factors should be used to decide whether or not a person\nis a common law spouse? Should the same standards apply to establish a common law marriage for\nspousal support and for the intestate spousal elective share? See Jennifer Thomas, Common Law\nMarriage, 22 J. Am. Acad. Matrim. Law 151 (2009); Sarah Primrose, The Decline of Common Law\nMarriage and the Unrecognized Cultural Effect, 34 Whittier L. Rev. 787 (Winter 2003).\n3. If the common law marriage in Duval was legally recognized, how much of the estate would the\nsurviving spouse take in a UPC jurisdiction? In your state if it has not adopted the UPC?\n4. On October 8, 2015, Travis County Probate Judge Guy Herman recognized a common-law same\nsex marriage in Texas. The judge signed an order declaring that the eight year relationship between\nStella Poswell and Sonemaly Phrasawath met the legal requirements of marriage without a license.\nThus, Phrasawath was entitled to inherit Powell\xe2\x80\x99s intestate estate as a surviving spouse. The case\narose when Powell died intestate and left no surviving children or parents. Powell\xe2\x80\x99s siblings argued\nthat she died without a surviving spouse because, at the time of her death, she could not legally\nmarry another woman under Texas law. Therefore, they claimed they were the next in line to inherit\nPowell\xe2\x80\x99s estate. The judge reasoned that Phrasawath was entitled to Powell\xe2\x80\x99s estate because Texas\xe2\x80\x99\nsame-sex marriage ban was in violation of the couple\xe2\x80\x99s constitutional rights. In essence, the judge\napplied the United States Supreme Court\xe2\x80\x99s decision invalidating bans on same-sex marriages\nretroactively. As of the writing of the book, the Texas Attorney General had vowed to appeal this\ndecision. The main concern is that the decision may result in the opening of probate estates in Texas\nand the redistribution of intestate estates.\n\n94\n\n\x0c3.2.3\n\nSame-Sex Spouse\n\nUnder the intestacy system, the word \xe2\x80\x9cspouse\xe2\x80\x9d referred to a person involved in a marital\nrelationship with a person of the opposite sex. Consequently, persons in committed long-term\nrelationships with persons of the same-sex could not inherit as surviving spouses. A recap of the\nhistory of same-sex marriages in the United States is unnecessary and beyond the scope of this\nsection. Therefore, I will include only a brief history. The first major victory for advocates of samesex marriage occurred in Hawaii. In 1983, the Hawaii Supreme Court in Baehr v. Lewin, 852 P.2d 44\n(Haw. 1993) ruled that the state had to show a compelling reason for denying marriage licenses to\nsame-sex couples. The state legislature reacted to the Baer decision by enacting a reciprocal\nbeneficiary statute that gave some of the benefits of marriage to couples who were not legally\npermitted to marry. A defeat for those same-sex marriage advocates happened when President\nWilliam J. Clinton signed the Defense of Marriage Act (DOMA) into law. According to the\nprovisions of DOMA, the federal definition of marriage was limited to the union of one man and\none woman. DOMA also stated that a state was not required to recognize any other sort of marriage\neven if that marriage was valid in another state. As a result of DOMA, same-sex couples could not\ntake advantage of federal benefits like Social Security Survivors\xe2\x80\x99 benefits. A few years after the\npassage of DOMA the tide turned when the Vermont Supreme Court heard Baker v. State, 744 A.2d\n864 (Vt. 1999) and held that the denial of a marriage license to a same-sex couple violated the\n\xe2\x80\x9ccommon benefits\xe2\x80\x9d clause of the state constitution. The Court ordered the state to extend the\nbenefits of marriage to same-sex couples or issue marriage licenses to those couples. In response,\nthe Vermont legislature enacted a civil union statute that gave same-sex couples the option to enter\ninto civil unions that gave them all of the rights and responsibilities of marriage. In 2003, in Goodridge\nv. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) the Massachusetts Supreme Judicial Court\nheld that because the state did not have a rational basis for refusing to grant a marriage license to a\nsame-sex couple that denial violated the equal protection guarantee of the state\xe2\x80\x99s constitution. A\ndivided United States Supreme Court struck down section three of DOMA in U.S. v. Windsor,\n133 S. Ct. 2675 (2013). On June 26, 2015, the United States Supreme Court ruled in Obergfell v.\nHodges, 135 S. Ct. 2584 (2015) that state bans on same-sex marriages were unconstitutional. The\nCourt held that the refusal to grant marriage licenses to same-sex couples and the failure to\nrecognize those marriages performed in other states violates the Due Process and the Equal\nProtection clauses of the Fourteenth Amendment of the United States Constitution. Consequently,\nthe laws governing opposite sex spouses now apply to persons in same-sex marriages.\n3.2.4\n\nOther Issues Impacting the Status of Surviving Spouse\n\nIn the previous sections, we discussed cases involving persons who could have been denied\nthe right to inherit as a surviving spouse because of the nature of their marital relationships. Those\npersons acted in the capacity of spouses and did not take any steps to indicate that they did not want\nto be a part of their marital relationships. The persons\xe2\x80\x99 ability to inherit as surviving spouses was\nbased upon the fact that they functioned as spouses. Those \xe2\x80\x9cfunctional spouses\xe2\x80\x9d were treated like\nlegal spouses, so that they could receive a portion of the intestate estates. The facts of the cases\ndiscussed in this section are totally different. The persons seeking to inherit engaged in activities that\nadversely impact their marital relationships. The plaintiff in the first case went to court to be legally\nseparated from her husband. The second case deals with the issue of spousal abandonment. Let look\nat the tales of two ladies named Frances.\n95\n\n\x0c3.2.4.1 Legal Separation\n\nEstate of Lahey, 76 Cal App. 4th 1056, 91 Cal. Rptr. 30 (Ct. App. Cal. 1st Dist. Div. 5, 1999)\nJONES, P.J.\nThe question presented in this proceeding is whether a spouse who obtained a judgment of legal\nseparation qualifies as a surviving spouse for purposes of intestate succession. We agree with the\ntrial court that the decedent\xe2\x80\x99s widow here does not qualify as a surviving spouse. We affirm the\njudgment.\nFactual and Procedural History\nFrances Lahey and decedent Clarence G. Lahey were married in 1984; they separated in March 1995.\nIn April 1995 Frances, acting in propria persona, petitioned for legal separation. She alleged that\nthere were no known community debts or assets. She requested termination of the court\xe2\x80\x99s\njurisdiction to award spousal support to Clarence, and she gave up her own right to receive spousal\nsupport. Clarence\xe2\x80\x99s default was eventually entered, and in July 1995 a judgment for legal separation\nwas filed, declaring as follows: \xe2\x80\x9cThere are no children or items of community property subject to the\ndisposition by this Court. Spousal support for Respondent is terminated by default. The Court\xe2\x80\x99s\njurisdiction to award spousal support to either party is terminated.\xe2\x80\x9d\nIn December 1996 Clarence died intestate survived by Frances and by his daughter from a prior\nmarriage, Dorothy Bianchi, who was appointed administrator of his estate. Apparently the main\nestate asset consists of decedent\xe2\x80\x99s separate property residence at 237 Glenwood Avenue in Daly\nCity. Frances filed a creditor\xe2\x80\x99s claim seeking her intestate share of the estate as the surviving spouse,\nbut the claim was rejected by the administrator. She then filed the instant action alleging entitlement\nto one-half of the decedent\xe2\x80\x99s estate as the surviving spouse.\nAfter a court trial, the trial court concluded that Frances did not qualify by statute as the surviving\nspouse inasmuch as she had obtained a judgment resolving her marital property rights. Frances\nappeals.\nDiscussion\nI. Judgment of Legal Separation\nWhen a decedent dies intestate, the surviving spouse is entitled to a share of the community\nproperty belonging to the decedent and a share of the decedent\xe2\x80\x99s separate property. (Prob. Code, \xc2\xa7\n6401). \xe2\x80\x9cSurviving spouse\xe2\x80\x9d is defined by statute to exclude a person whose marriage to the decedent\nwas dissolved or annulled and also to exclude \xe2\x80\x9c[a] person who was a party to a valid proceeding\nconcluded by an order purporting to terminate all marital property rights.\xe2\x80\x9d (Prob. Code, \xc2\xa7 78, subd.\n(d).)\n\n96\n\n\x0cThere is no question that Frances\xe2\x80\x99s marriage to the decedent had not been dissolved or annulled. A\njudgment of legal separation leaves the marriage bonds intact. (See Fam. Code \xc2\xa7 2347; Faught v.\nFaugh (1973) 30 Cal. App.3d 875, 878 [106 Cal. Rptr. 751]; Elam v. Elam (1969) 2 Cal. App.3d 1013,\n1019-1020 [83 Cal. Rptr. 275].) However, it is obvious that a surviving spouse for purposes of\nintestate succession is distinct from the legal wife or husband of the decedent. Probate Code section\n78 excludes not only a spouse whose marital status has been terminated but also a spouse whose\nmarital property rights have been terminated. The issue before us, then, is whether the judgment of\nlegal separation constitutes an \xe2\x80\x9corder purporting to terminate all marital property rights\xe2\x80\x9d so as to\ndisqualify Frances as the surviving spouse.\nThe concept of divisible divorce permits issues of marital status and financial responsibility to be\nlitigated at separate times and in different forums. (Faught v. Faught, supra, 30 Cal. App.3d at p. 878).\nAs Frances acknowledges, a judgment of legal separation (formerly a decree of separate\nmaintenance) is designed to resolve the financial issues between the parties, including division of\ncommunity assets and liabilities and determination of support obligations. (See Krier v. Krier (946) 28\nCal.2d 841 [172 P.2d 681]; Faught v. Faught, supra, 30 Cal. App.3d at p. 878). A judgment for legal\nseparation, however, is not an interim order. It serves as a final adjudication of the parties\xe2\x80\x99 property\nrights and is conclusive and res judicata even in a subsequent proceeding to dissolve the marriage.\n(Krier v. Krier, supra, 28 Cal. 2d 841; Faught v. Faught, supra, 30 Cal. App.3d at p. 878).\nFrances argues that her petition for legal separation sought only limited relief, and the judgment of\nlegal separation cannot be read to exceed the relief prayed for. The Judicial Council form petition for\nlegal separation includes several boxes to be checked to indicate, e.g., a request for confirmation of\nseparate property assets and obligations, a request for spousal support, a request for termination of\njurisdiction to award spousal support, and a request that property rights be determined. Frances did\nnot check the box seeking a determination of property rights, nor did she check the box requesting\nconfirmation of separate property. She checked only the box declaring that there were no\ncommunity assets or liabilities and the box requesting termination of jurisdiction to award spousal\nsupport. Frances argues because she made no request in her petition that all property rights be\ndetermined, the judgment was not a determination of all her marital property rights.\nWe reject the argument. Under the statutory scheme, the court in a legal separation proceeding must\ndivide the known community assets and must characterize the parties\xe2\x80\x99 liabilities as community or\nseparate. (Fam. Code \xc2\xa7\xc2\xa7 2550, 2551). The court may also make orders for spousal support. (Fam.\nCode \xc2\xa7\xc2\xa7 4330). Here, Frances\xe2\x80\x99s petition declared that there was no community property to divide,\nand the judgment for legal separation said the same. The judgment also terminated the rights of both\nparties to spousal support. That determination of the marital property rights was final and\nconclusive and served to terminate Frances\xe2\x80\x99s community property rights. There were no other\nproperty rights that could have been determined.\nFrances contends that nothing in the judgment for legal separation adjudicated the parties\xe2\x80\x99 separate\nproperty and therefore she retained her rights to succeed to the decedent\xe2\x80\x99s separate property\nresidence. This contention, however, ignores the import of Probate Code section 78. That statute\nexcludes from the definition of surviving spouse one whose marital property rights have been\nterminated. Nothing in the language or meaning of the statute requires in addition an express\n\n97\n\n\x0ctermination of inheritance rights, for the obvious effect of the statute itself is to terminate the\ninheritance rights of such a spouse.\nThe judgment is affirmed.\nNotes, Problems, and Questions\n1. Why did Frances argue that she should have been permitted to inherit from Clarence\xe2\x80\x99s estate?\n2. The Court admitted that Frances was still legally married to Clarence. Why did the Court refuse to\nrecognize Frances as a surviving spouse?\n3. Consider the following example. Floyd and Glenda were married for 25 years. After Floyd was\ndiagnosed with cancer, the couple spent a lot of money on medical bills. Floyd and Glenda went to a\nlocal charity for assistance. The charity agreed to pay a portion of Floyd\xe2\x80\x99s medical expenses if his\nincome fell below a certain amount. The woman who helped Glenda fill out the paperwork told\nGlenda that Floyd would qualify for assistance if he and Glenda were legally separated. Thus,\nGlenda filed for a legal separation. Two months after Glenda was granted a legal separation, Floyd\ndied intestate. Floyd was survived by Glenda and two children from his previous marriage, Vivian\nand Leigh. Floyd\xe2\x80\x99s probate estate which consisted of real estate he purchased prior to his marriage to\nGlenda was worth $72,000. In a jurisdiction that follows the reasoning of the Lahey case would\nGlenda be eligible to inherit from Floyd\xe2\x80\x99s estate? If she is permitted to inherit, what portion of the\nestate would Glenda receive in a UPC jurisdiction? In the jurisdiction where you live if it has not\nadopted the UPC?\n3.2.4.2 Abandonment\n\nEstate of Joyner v. Joyner, 753 S.E.2d 192 (Ct. App. N.C. 2014) (Constructive Abandonment)\nOpinion\nHUNTER, Judge.\nPlaintiffs appeal from an order entered 17 October 2012 in Lenoir County Superior Court by Judge\nPhyllis M. Gorham granting defendants\xe2\x80\x99 motion for summary judgment. On appeal, plaintiffs argue\nthere was a genuine issue of material fact with respect to whether Warren Joyner (\xe2\x80\x9cWarren\xe2\x80\x9d)\nconstructively abandoned his wife, Frances Joyner (\xe2\x80\x9cFrances\xe2\x80\x9d). After careful review, we affirm the\ntrial court\xe2\x80\x99s order granting summary judgment.\nBackground\nAll plaintiffs in this case are surviving siblings of Frances. Frances died intestate on 17 January 2011\nwithout children and with her husband, Warren, as her only potential heir. Warren died intestate on\n6 February 2011, survived only by his mother. Plaintiffs brought this action against the coadministrators of Warren\xe2\x80\x99s estate, Jessie Mae Britt and Linwood Joyner, and Warren\xe2\x80\x99s mother, Jessie\n98\n\n\x0cBell Joyner (collectively \xe2\x80\x9cdefendants\xe2\x80\x9d), seeking a declaratory judgment to bar Warren and his heirs\nfrom inheriting from Frances on the ground that Warren actually or constructively abandoned\nFrances.\nWarren and Frances were married for twenty-six years and lived in the same home until Frances\xe2\x80\x99s\ndeath. They were both disabled; Warren had kidney failure, and Frances was a double amputee with\nheart failure. Warren was unemployed for the last twenty years of the marriage.\nThe parties contest the level of care Warren provided for Frances. Plaintiffs claimed in depositions\nthat: (1) Warren would not take Frances to doctors\xe2\x80\x99 visits without compensation for his time and\ngas; (2) the couple ceased conjugal contact and Warren openly engaged in homosexual relationships;\n(3) Warren moved into a separate bedroom in the home he shared with Frances; and (4) Warren\nrefused to provide food or financial support for Frances for at least the last six years of their\nmarriage. Defendants testified at the summary judgment hearing that Warren was the primary\ncaretaker of Frances and was a loving, caring husband, and that Warren helped Frances around the\nhouse, cooked meals for her, checked her blood sugar, and provided her medication.\nAt the conclusion of deposition presentation and testimony at the hearing on defendants\xe2\x80\x99 motion\nfor summary judgment, the trial court granted summary judgment for defendants. Plaintiffs timely\nappealed.\nDiscussion\nI. Whether Summary Judgment was Proper\nPlaintiffs\xe2\x80\x99 sole argument on appeal is that the trial court erred in granting defendants\xe2\x80\x99 motion for\nsummary judgment. After careful review, we affirm.\n\xe2\x80\x9cOur standard of review of an appeal from summary judgment is de novo; such judgment is\nappropriate only when the record shows that \xe2\x80\x98there is no genuine issue as to any material fact and\nthat any party is entitled to a judgment as a matter of law.\xe2\x80\x99 \xe2\x80\x9d In re Will of Jones, 362 N.C. 569, 573, 669\nS.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)).\nWhen reviewing a grant of summary judgment \xe2\x80\x9cevidence presented by the parties must be viewed in\nthe light most favorable to the non-movant.\xe2\x80\x9d Brue\xe2\x80\x94Terminix Co., v. Zurich Ins. Co., 130 N.C. App.\n729, 733, 504 S.E.2d 574, 577 (1998). \xe2\x80\x9cSummary judgment is appropriate where the movant proves\nthat an essential element of the claim is nonexistent or that the opposing party cannot produce\nevidence to support an essential element of his claim.\xe2\x80\x9d Holloway v. Wachovia Bank & Trust Co., N.A.,\n339 N.C. 338, 351, 452 S.E.2d 233, 240 (1994) (citation omitted).\nN.C. Gen. Stat. \xc2\xa7 31A\xe2\x80\x941(a)(3) (2011) states that \xe2\x80\x9c[a] spouse who willfully and without just cause\nabandons and refuses to live with the other spouse and is not living with the other spouse at the time of such\nspouse\xe2\x80\x99s death \xe2\x80\x9d loses intestate succession rights in the other spouse. N.C. Gen. Stat. \xc2\xa7 31A\xe2\x80\x941(a)(3),\n(b)(1)(2011) (emphasis added). Plaintiffs cite Powell v. Powell, 25 N.C. App. 695, 699, 214 S.E.2d 808,\n811 (1975), and Meares v. Jernigan, 138 N.C. App. 318, 321, 530 S.E.2d 883, 885-86 (2000), for the\nproposition that a husband or wife could constructively abandon his or her spouse under section\n31A-1 without leaving the marital home. They argue that Warren\xe2\x80\x99s failure to provide monetary and\nemotional support amounted to constructive abandonment and that he should be divested of his\nright to intestate succession as a result. However, plaintiffs overlook the fact that Powell analyzes\n99\n\n\x0cabandonment under N.C. Gen. Stat. \xc2\xa7 50-16.2(4), which was repealed in 1995, and therefore is no\nlonger controlling. Act of Oct. 1, 1995, ch. 319, sec. 1, 1995 N.C. Sess. 641. Meares analyzes section\n31A1(a)(3) and quotes language from Powell to support the proposition that a husband or wife could\nconstructively abandon his or her spouse without leaving the marital home, but the decision stops\nshort of reaching all elements in section 31A-1. Meares, 138 N.C. App. At 321-22, 530 S.E.2d at 886.\nOur Supreme Court has made clear that abandonment alone is insufficient to deprive a spouse of\nintestate succession rights under section 31A-1. In Locust v. Pitt Cnty. Mem\xe2\x80\x99l Hosp., Inc., 358 N.C. 113,\n118, 591 S.E.2d 543, 546 (2004), the Supreme Court held that \xe2\x80\x9cnot living with the other spouse at\nthe time of such spouse\xe2\x80\x99s death\xe2\x80\x9d is a necessary element of section 31A-1.\nNotably, under the wording of the statute, intent to abandon and abandonment even when\ncombined, are insufficient to preclude an abandoning spouse from intestate succession. The\nabandoning spouse must also \xe2\x80\x9cnot [be] living with the other spouse at the time of such spouse\xe2\x80\x99s\ndeath.\xe2\x80\x9d N.C.G.S. \xc2\xa7 31A-1. This Court has held that a spouse may abandon the other spouse\nwithout physically leaving the home, thus likely prompting the legislature to include the additional\nrequirement in N.C.G.S. \xc2\xa7 31A-1. Because absence from the marital home is an element under the statute, a\ndetermination of spousal preclusion from intestate succession cannot be made until the death of\nthe other spouse.\nId. (emphasis added) (citations omitted). Because it is undisputed that Warren was not \xe2\x80\x9cabsen[t]\nfrom the marital home\xe2\x80\x9d at the time of Frances\xe2\x80\x99s death, but was merely sleeping in a separate\nbedroom, plaintiffs failed to meet this required element of section N.C.G.S. \xc2\xa7 31A-1. See id.\nAccordingly, we affirm the trial court\xe2\x80\x99s entry of summary judgment in defendants\xe2\x80\x99 favor. See\nHolloway, 339 N.C. at 351, 452 S.E.2d at 240 (\xe2\x80\x9cSummary judgment is appropriate where the movant\nproves that an essential element of the claim is nonexistent or that the opposing party cannot\nproduce evidence to support an essential element of his claim.\xe2\x80\x9d).\nAs plaintiffs failed to cite Locust in their brief, we remind counsel of the duty of candor toward the\ntribunal, which requires disclosure of known, controlling, and directly adverse authority. See N.C.\nRev. R. Prof. Conduct 3.3(a), (a)(2) (2012) (\xe2\x80\x9cA lawyer shall not knowingly: ... fail to disclose to the\ntribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to\nthe position of the client and not disclosed by opposing counsel[.]\xe2\x80\x9d). While the duty to disclose\nLocust rests upon plaintiffs, defendants also failed to cite the case. We remind counsel of the need to\nbe diligent in finding controlling authority.\nConclusion\nBecause plaintiffs failed to establish an element of their claim, we affirm the trial court\xe2\x80\x99s order\ngranting defendants\xe2\x80\x99 motion for summary judgment.\nAFFIRMED.\nNotes, Problems, and Questions\n1. If the facts in the Joyner case are true as set forth by the plaintiffs, should Warren be permitted to\ninherit from Frances\xe2\x80\x99 estate? If we punish a person for being a bad spouse, where do we draw the\nline?\n100\n\n\x0c2. What was the constructive abandonment argument made in the Joyner case?\n3. What is required to prove abandonment? Is abandonment enough to keep Warren from inheriting\nfrom Frances\xe2\x80\x99 estate?\n4. Consider the following case. In 2010, Will and Delores were married in Maine. The couple did not\nhave any children. In 2013, Will and Delores had a terrible argument when she discovered that he\nhad quit his job to become an artist. Delores moved out of the house. She left a note stating, \xe2\x80\x9cWhen\nyou come to your senses, I\xe2\x80\x99ll come back home.\xe2\x80\x9d After Delores left, Will could not afford the\nmortgage payments, so he lost the house to foreclosure. Will moved to Alaska to live with his\nbrother. Five years later, Will sold his first painting for two million dollars. When Delores found out\nabout Will\xe2\x80\x99s success, she contacted him and told him that she wanted to again be a couple. Will was\nso happy that he booked a flight back to Maine. Unfortunately, Will\xe2\x80\x99s plane hit a mountain and he\nwas one of the fatalities. Will died intestate survived by Delores, his sister, Grace, and his sister\nMarla. Will\xe2\x80\x99s grandmother, Sharon, also survived him. At the time of his death, Will\xe2\x80\x99s estate was\nworth 1.2 million dollars. What portion, if any, of Will\xe2\x80\x99s intestate estate should Delores receive?\n3.3\n\nWhat does it mean to survive?\nIn order for a person to be considered to be a surviving spouse, he or she must survive the\ndecedent. The easy cases are the ones that involve situations where a person dies before his or her\nspouse. The surviving spouse has the legal right to a share of the decedent\xe2\x80\x99s estate. Nonetheless,\nthere are times when it is difficult to determine the identity of the surviving spouse. For example, if\nthe spouses died in a common accident, it may be impossible to definitively declare one as the\nsurviving spouse. This sad state of affairs has started to happen with some regularity. A high profile\ncase involved John F. Kennedy, Jr. and his wife Carolyn. The couple was killed when their plane\ncrashed into the ocean. Kennedy and his wife stayed in the oceans for several days. When their\nbodies were found the medical examiner concluded that they died instantly. However, he could not\nsay who died first. The simultaneous death problem impacts the distribution of both intestate and\ntestate estates.\nLegislatures and courts made several attempts to solve the simultaneous death problem. For\ninstance, the provisions of the original Uniform Simultaneous Death Act (USDA) of 1940 state that\nif \xe2\x80\x9cthere is no sufficient evidence\xe2\x80\x9d of the order of deaths, each person is considered to have died\nbefore the other person, so neither inherits from the other. The legislatures adopting the USDA did\nnot give clear guidance on what was necessary to fulfill the sufficient evidence requirement. Thus,\ncourts were forced to evaluate the evidence on a case-by-case basis. That approach led to\ninconsistent results.\nThere are some clear rules governing non-probate property where simultaneous death\ncannot be definitely proven. Consider the following two examples. Ernie and Bert who owned a\nhouse as joint tenants or community property owners died at the same time. Ernie was survived by\nhis mother, Peggy, and Bert was survived by his sister, Bernice. The court distributes Ernie\xe2\x80\x99s onehalf interest in the house to Peggy and the Bert\xe2\x80\x99s one half interest in the house to Bernice. One-half\nof the property is distributed as if Ernie survived and one half is distributed as if Bert survived.\nWhen an insured and the third-party beneficiary of a life insurance policy die simultaneously, the\nproceeds are distributed as if the insured survived the beneficiary.\n101\n\n\x0c3.3.1\n\nCommon Law\n\nUnder common law, the general rule was that, if several persons died in a common disaster,\nthere was no presumption as to survivorship. The person asserting survivorship had the burden of\nproving that fact. The burden of proof was a preponderance of the evidence. It was not presumed at\ncommon law that one person survived another, or that the persons died simultaneously, even in the\nabsence of proof that one survived the other. Therefore, the common law rule governing the\ndevolution of property of persons who perish in common disasters when there was no evidence as\nto which died first was that the courts disposed of their property rights as though death had\noccurred to all the persons at the same time. These common law rules were supplanted by the\nUniform Simultaneous Death Act.\n3.3.2\n\nOriginal Uniform Simultaneous Death Act\n\nMatter of Bausch\xe2\x80\x99s Estate, 100 Misc.2d 817 (N.Y. 1979)\nF. WARREN TRAVERS, Surrogate.\nThe above named decedents were husband and wife and both died, apparently almost\nsimultaneously, as the result of injuries sustained in an automobile accident on March 5, 1979. It is\nnow necessary to establish the order of their deaths, in order that distribution of the assets of the\nestates can be made.\nIn view of the circumstances of decedents\xe2\x80\x99 deaths, it is necessary to consider whether the New York\nState Uniform Simultaneous Death Act (EPTL 2-1.6 governs the distribution of the estates\xe2\x80\x99 assets.\nThe statute provides that \xe2\x80\x9cwhere the title to property or the devolution thereof depends upon\npriority of death and there is no sufficient evidence that the persons have died otherwise than\nsimultaneously, the property of each person shall be disposed of as if he had survived . . .\xe2\x80\x9d EPTL 21.6(a).\nWhere two persons die in a common disaster, there is no presumption as to which person survived,\nand there is no presumption that the deaths were simultaneous. The burden of proof is on the party\nclaiming survivorship to establish it as a fact or by evidence, which fairly warrants an inference of\nsurvivorship. (Matter of Spatafora, 35 Misc.2d 128, 229 N.Y.S.2d 601).\nPetitioner claims that Paula E. Bausch survived her husband and that his estate should be distributed\naccordingly. Petitioner has submitted the decedents\xe2\x80\x99 death certificates which have been certified by\nthe County Coroner. The certificates recite that Paula E. Bausch died at 8:00 a. m., and her husband\ndied at 7:55 a. m. The certificates made by the County Coroner state in part: \xe2\x80\x9cOn the basis of\nexamination and/or investigation, in my opinion death occurred at the time . . . stated.\xe2\x80\x9d\nPublic Health Law, Section 4103(3), provides in part that \xe2\x80\x9ca . . . death certificate . . . shall be prima\nfacie evidence in all courts and places of the facts therein stated.\xe2\x80\x9d There has been some question as\nto whether a death certificate is admissible to prove any facts other than the fact of death. (See Fisch\n102\n\n\x0con New York Evidence, Section 956, and Matter of Esther T., 86 Misc.2d 452, 382 N.Y.S.2d 916, ,\nand cases cited therein.)\nThis court is persuaded by the reasoning of Surrogate Bennet as expressed In Matter of Esther T.,\n(supra) and holds that the death certificates offered by petitioner are admissible in evidence together\nwith the collateral facts stated therein and not solely for the proof of death.\nThe court is satisfied that EPTL 2-1.6 does not apply in the case now before the court.\nThe death certificates are sufficient proof of the fact that John A. Bausch predeceased his wife by\napproximately five minutes.\nThe estate of John A. Bausch shall be distributed as though his wife survived, and Paul E. Bausch\xe2\x80\x99s\nestate shall be distributed as though her husband predeceased her.\nProblems\n1. Based upon the reasoning in the Bausch case, is it clear how much evidence is necessary to reach\nthe \xe2\x80\x9csufficient evidence\xe2\x80\x9d requirement? Does this case provide guidance for attorneys in the\njurisdiction? The sufficient evidence only has to prove that one person survived for an instant. In\nthe Bausch case, the wife only survived her husband for five minutes. That small amount of time\nchanged the distribution of the estates and potentially disadvantaged the husband\xe2\x80\x99s heirs.\n2. If order of death can be determined, the USDA is not applicable. The statute also does not apply\nif the decedent leaves a will containing survival language. In cases where the statute is applied, the\nstatute results in an even distribution of the parties\xe2\x80\x99 estate. Thus, if H and W die in a common\ndisaster and it is not possible to prove who died first, half of the estate goes through H and half goes\nthrough W.\n3. Collin and Raven, husband and wife, were killed when their boat exploded. Their bodies were not\nfound until ten days later. Doctors concluded that they died from hypothermia when they were\nthrown from the boat into the frigid lake. A Coast Guard officer testified that, when they were\ndiscovered, Collin was wearing a t-shirt and a pair of biker shorts and Raven was wearing a longsleeved shirt and a pair of jeans. Is that sufficient evidence to conclude that Raven survived Collin\nfor an instant of time?\n4. On April 12, 2000, Parker and Anita, husband and wife, were hiking. Parker tripped and fell down\na small hill. While trying to save Parker, Anita slipped and hit her head. Two hikers found the couple\nand they were rushed to a nearby hospital. When Parker and Anita arrived at the emergency room,\nthey were both in serious condition. At the hospital, Anita\xe2\x80\x99s brain started swelling and she was\nrushed to the operating room. Due to an existing condition, Parker started having heart problems\nand he was also taken to the operating room. Following the operations, Parker and Anita were both\nplaced on life support. A review of his medical records revealed that Parker had a living will stating\nthat he did not want to remain on life support for more than two days. Anita\xe2\x80\x99s medical records\nshowed that she had an advanced health care directive that gave her sister, Trina, the right to make\nher medical decisions. Thus, the hospital decided to keep Anita on life support until Trina could\narrive. Trina was out of the country, so she did not get to the hospital until April 16, 2000. Parker\n103\n\n\x0cwas taken off of life support on April 14, 2000 and pronounced dead. Trina gave the hospital\npermission to remove Anita from last support on April 17, 2000. Was there sufficient evidence that\nAnita survived Parker?\n3.3.3\n\nUPC and Modern USDA (120 Hour Rule)\n\nIt was basically impossible to determine if one person survived another person by an instant.\nIn addition, as the situation in problem 3 indicates, the order of death may sometimes be controlled\nby doctors or other circumstances. In the interests of judicial economy and judicial consistency,\nstates legislatures adopted a bright line survival rule as a default approach. That approach was\ncodified in both the UPC and the USDA. It should be noted that the 120 hour rule does not really\nsolve the life support situation discussed in problem 3. In acknowledgment of that fact, most\nprobate attorneys include survival clauses in wills that mandate that the person survives the decedent\nby 30 or 60 days.\n\nUniform Probate Act \xc2\xa7 2-104. Requirement that Heir Survive Decedent for 120 Hours.\nAn individual who fails to survive the decedent by 120 hours is deemed to have predeceased the\ndecedent for purposes of homestead allowance, exempt property, and intestate succession, and the\ndecedent\xe2\x80\x99s heirs are determined accordingly. If it is not established by clear and convincing evidence\nthat an individual who would otherwise be an heir survived the decedent by 120 hours, it is deemed\nthat the individual failed to survive for the required period. This section is not to be applied if its\napplication would result in a taking of intestate estate by the state under Section 2-105.\n\nStephens v. Beard, 428 S.W.3d 385 (Ct. App. Tex. 2014)\nHOYLE, Justice.\nElaine Stephens, independent executrix of the estate of Vencie Beard and of the estate of Melba\nBeard, appeals from declaratory judgments construing Vencie Beard\xe2\x80\x99s will and Melba Beard\xe2\x80\x99s will. In\ntwo issues, Stephens asserts that the trial court erred in determining that Vencie and his wife, Melba,\ndied in a common disaster and that the Simultaneous Death Act applies to this case. We affirm.\nBACKGROUND\nVencie Beard shot and killed his wife, Melba, on April 16, 2011. The death certificate states that the\ntime of her death was 8:59 p.m. Vencie died that same night at 10:55 p.m. from a self-inflicted\ngunshot wound.\nParagraph 2.02 of each of the decedents\xe2\x80\x99 wills provided for specific cash bequests to nine named\nindividuals if both Vencie and Melba died in a common disaster or under circumstances making it\nimpossible to determine which died first. Paragraph 2.03 of each will provided that if the spouse did\nnot survive the testator by ninety days, Janet Lea Hopkins would receive a portion of a tract of land.\nParagraph 2.04 of each will provided that if the spouse did not survive the testator by ninety days,\nMatthew C. Hopkins would receive the remaining portion of that tract of land. In paragraph 2.05 of\n104\n\n\x0ceach will, Vencie and Melba gave \xe2\x80\x9cthe rest and residue\xe2\x80\x9d of their estates to their respective spouses.\nThat paragraph further provided that if the spouse did not survive the testator by ninety days,\nBeverly Kaye Gilmore and Janet Lea Hopkins would receive the residuary estate.\nStephens sought a declaration as to whether Vencie and Melba died in a common disaster or under\ncircumstances making it impossible to determine which of them died first. She also wanted a\ndetermination of the amounts of the cash bequests the nine individuals were to receive under the\nwills. She named as defendants the beneficiaries under the wills, Brandon Scott Beard, Brian Jake\nGilmore, Philip Chase Johnson, Megan Johnson, Jeremy Hopkins, Lindsey Beard, Pamela Johnson,\nRoland Scott Beard, Janet Lea Hopkins, individually and as trustee for Matthew C. Hopkins, and\nBeverly Kaye Gilmore.\nThe court determined that Vencie and Melba died in a common disaster and that, based on the\nlanguage in their wills, they intended to incorporate the statutory presumption of the Simultaneous\nDeath Act. Therefore, the court determined that paragraph 2.02 should apply to the distribution of\neach estate. Further, the court declared that \xe2\x80\x9cthe beneficiaries are to be awarded the amount\nprovided from each estate, to the extent the resources of the estate permit.\xe2\x80\x9d\nCOMMON DISASTER\nIn her first issue, Stephens argues that, because there is evidence of who died first, Melba and\nVencie did not die in a common disaster or under circumstances making it impossible to determine\nwho died first. Therefore, she argues, the trial court erred in concluding that they died in a common\ndisaster and the cash bequests provided for in paragraph 2.02 of each will were not effective.\nApplicable Law\nAn executrix of a decedent\xe2\x80\x99s estate may have a declaration of rights in respect to the estate to\ndetermine questions of construction of the will. TEX. CIV. PRAC. & REM. CODE ANN. \xc2\xa7\n37.005(3)(West 2008). When reviewing the trial court\xe2\x80\x99s legal conclusions, we evaluate them\nindependently and thus review the legal conclusions drawn from the facts solely to determine their\ncorrectness. Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex. App.-Dallas 1997, pet. denied) (en banc).\nAnalysis\nParagraph 2.02 provided for cash bequests to certain defendants if both Vencie and Melba died in a\ncommon disaster or under circumstances making it impossible to determine which died first. The\nevidence shows that Vencie and Melba did not die at the same time and it is possible to determine\nthat Melba died first. Stephens asserts the trial court\xe2\x80\x99s conclusion of law that the Beards died in a\ncommon disaster was erroneous.\nThe term \xe2\x80\x9ccommon disaster\xe2\x80\x9d has been defined to mean \xe2\x80\x9c[a]n event that causes two or more persons\nwith related property interests ... to die at very nearly the same time, with no way of determining\nwho died first.\xe2\x80\x9d BLACK\xe2\x80\x99S LAW DICTIONARY 292 (8th ed. 2007). Ordinarily, cases discussing\ncommon disasters involve accidents or natural disasters. See White v. Taylor, 155 Tex. 392, 386 S.W.2d\n925, 925 (1956) (automobile accident); Sherman v. Roe, 153 Tex. 1, 262 S.W.2d 393, 395 (1953)\n(airplane accident); Males v. Sovereing Camp Woodmen of the World, Tex. Civ. App. 184, 70 S.W. 108, 108\n(Fort Worth 1902, no writ) (storm). The word \xe2\x80\x9ccommon\xe2\x80\x9d can mean shared by two or more.\n105\n\n\x0cMERRIAM\xe2\x80\x93WEBSTER\xe2\x80\x99S COLLEGIATE DICTIONARY 250 (11th ed. 2011). A disaster has\nbeen defined as a calamitous event or great misfortune. Id. at 355. Generally, it can be said that a\ncommon disaster is any situation where the death of two or more people arose out of the same set\nof circumstances.\nThe record shows that Melba was found dead at her home. She died of a gunshot wound inflicted\nby Vencie who then shot himself. He did not die immediately and was transported to a hospital\nwhere he died about two hours later. The shots were fired in one episode, which is a common\ndisaster in spite of the fact that Vencie did not successfully kill himself immediately. Accordingly, the\ntrial court\xe2\x80\x99s conclusion of law that Vencie and Melba died in a common disaster is not erroneous. See\nAshcraft, 952 S.W.2d at 910. We overrule Stephens\xe2\x80\x99s first issue.\nCONSTRUCTION OF THE WILLS\nIn her second issue, Stephens asserts that the Simultaneous Death Act does not apply in this case.\nShe further contends that even if it applied, the statute would not govern due to the exception in the\nstatute, which states that if a will provides for a disposition of property that is different from the\nprovisions of the statute, the statute will not apply. She asserts that the wills\xe2\x80\x99 language providing for\na disposition of property in the event the couple died in a common disaster or under circumstances\nmaking it impossible to determine who died first satisfies the exception. She further argues that\nparagraphs 2.03, 2.04, and 2.05 provided for a different disposition of the property than the one set\nforth in the statute. Therefore, she asserts, the wills did not incorporate the Simultaneous Death Act.\nApplicable Law\nThe cardinal rule for construing a will requires that the testator\xe2\x80\x99s intent be ascertained by looking to\nthe provisions of the instrument as a whole, as set forth within the four corners of the instrument.\nPerfect Union Lodge No. 10 v. Interfirst Bank of San Antonio, N.A., 748 S.W.2d 218, 220 (Tex. 1988). The\nwill should be construed so as to give effect to every part of it, if the language is reasonably\nsusceptible of that construction. Id. Terms are to be given their plain, ordinary, and generally\naccepted meanings unless the instrument itself shows them to have been used in a technical or\ndifferent sense. Steger v. Muenster Drilling Co., 134 S.W.3d 359, 372 (Tex. App.-Fort Worth 200, pet.\ndenied). If possible, all parts of the will must be harmonized, and every sentence, clause, and word\nmust be considered in ascertaining the testator\xe2\x80\x99s intent. Id.\nThe Simultaneous Death Act provides that a person who dies less than 120 hours after the time the\ndecedent dies is deemed to have predeceased him and therefore cannot be a beneficiary. See generally\nAct of May 17, 1979, 66th Leg., ch. 713, \xc2\xa7 6, 1979 Tex. Gen. Laws 1740, 1743\xe2\x80\x9344 (amended 1993)\n(current version at TEX. EST. CODE \xc2\xa7\xc2\xa7 121.001\xe2\x80\x93.153 (West Pamph. 2013)). However, a\ndecedent\xe2\x80\x99s will can provide for a disposition of property that is different from the provisions of the\nSimultaneous Death Act and the statute will not apply. Act of May 17, 1979, 66th Leg., ch. 713, \xc2\xa7 6,\n1979 Tex. Gen. Laws 1740, 1744 (current version at TEX. EST. CODEE \xc2\xa7 121.001 (West Pamph.\n2013)).\nANALYSIS\nIn paragraphs 2.03, 2.04, and 2.05 of each will, the testators specified that the beneficiaries\xe2\x80\x99 receipt\nof property was contingent upon the decedent\xe2\x80\x99s spouse failing to survive the decedent by ninety\n106\n\n\x0cdays. These provisions constitute a disposition of property that is different from the statutory\nrequirement of survival for only 120 hours after the testator dies. Thus, the statute does not apply to\nthose provisions. Id. However, paragraph 2.02 in each will provides for certain bequests if both\nVencie and Melba \xe2\x80\x9cdie in a common disaster or under circumstances making it impossible to\ndetermine which of [them] died first.\xe2\x80\x9d This language indicates that their intent was to avoid the\nbequest going to one of them if they died simultaneously or almost simultaneously. This is also the\nintent of the statute, which prevents property from passing into the estate of a second person who is\nalready deceased only to be distributed immediately from that estate. See Glover v. Davis, 366 S.W.2d\n227, 231 (Tex.1963).The Beards articulated their intent to provide for a disposition of some of their\nproperty that was different from provisions of the statute but worded paragraph 2.02 in a manner\nthat is consistent with the Simultaneous Death Act. They could have used the same language in\nparagraph 2.02 as they did in the other paragraphs if they wanted the same result. The trial court did\nnot err in its construction of the wills. We overrule Stephens\xe2\x80\x99s second issue.\nDISPOSITION\nThe trial court properly concluded that the Beards died in a common disaster and the Simultaneous\nDeath Act applies to paragraph 2.02 of each will.\nWe affirm the trial court\xe2\x80\x99s judgment in each case.\n3.3.4\n\nBrain Death vs. Hearth Death\n\nIt is difficult to determine survival without a clear meaning of death. As the next case\nindicates, the law often grapples with the concept of legal death.\n\nIn re Haymer, 450 N.E.2d 940 (Ill. App. 3d 1983)\nRIZZI, Justice:\nOn October 28, 1982, Loyola University of Chicago, which owns and operates Foster G. McGaw\nHospital in Cook County, Illinois, sought a declaratory judgment that its patient, 7-month-old Alex\nB. Haymer, was legally dead, thereby permitting the hospital to remove Alex B. Haymer from a\nmechanical ventilation system. The child\xe2\x80\x99s parents opposed the removal of the mechanical device, as\ndid the child\xe2\x80\x99s guardian ad litem. Following an expedited hearing, the trial court entered an order on\nNovember 4, 1982, which provided that the legal death of Alex B. Haymer occurred on October 23,\n1982, the date when doctors determined that the child had suffered the total and irreversible\ncessation of all functions of the entire brain. The order also authorized Foster G. McGaw Hospital,\nLoyola University Medical Center, to discontinue the mechanical ventilation system connected to the\nbody of Alex B. Haymer. The trial court stayed the force and effect of its order for seven days to\ngive the parties an opportunity to have appellate review of the order before the mechanical\nventilation system was removed. The State of Illinois was permitted to intervene on the ground that\nit had an interest in the investigation and prosecution of any deaths which may have been caused by\nany criminal action in Cook County. The State objected to the stay on the basis that the\ncircumstances surrounding the alleged legal death of Alex B. Haymer were suspicious, and that the\n107\n\n\x0cMedical Examiner of Cook County must perform an autopsy as soon as possible because, according\nto the affidavit of the Medical Examiner of Cook County, \xe2\x80\x9cwhere brain death has occurred and the\nsubject is maintained on artificial breathing and circulatory apparatus, tissue deterioration and\ndestabilization occurs which may render it impossible to determine the cause of death * * *.\xe2\x80\x9d The\nguardian ad litem appealed the order of the trial court and moved for an emergency stay. We stayed\nthe force and effect of the trial court\xe2\x80\x99s order and set the case for oral argument on December 6,\n1982. In the meantime, on November 28, 1982, Alex B. Haymer\xe2\x80\x99s heart stopped functioning and the\nmechanical ventilation system was disconnected. Oral argument on the merits of the case was heard\non February 16, 1983.\nOn appeal the parties contest whether Alex B. Haymer was legally dead on October 23, 1982, when\nit was medically determined that he had sustained total brain death, or on November 28, 1982, when\nhis heart stopped functioning. We affirm the trial court\xe2\x80\x99s order that Alex B. Haymer was legally dead\non October 23, 1982.\nThis case presents the issue of determining when death legally occurs in Illinois. Plainly, with the\nscientific and medical advances of recent years, the general and traditional definition of death,\ncessation of heartbeat, is no longer meaningful or factually accurate. In our present-day society,\nmany people continue to live after experiencing cardiac arrest, and cardiopulmonary by-pass\nmachines permit a patient\xe2\x80\x99s heartbeat to cease for several hours with full clinical recovery after\nresuscitation. See F. Plum & J. Posner, The Diagnosis of Stupor and Coma 313, 331 (3d ed. 1980);\nJacobson, Anderson & Speigel, Towards a Statutory Definition of Death in Illinois, 14 J. Mar. L. Rev. 701,\n709 (1981). There has also been at least one instance where a permanent artificial heart has sustained\na human\xe2\x80\x99s life for a relatively extended period of time. See Time, April 4, 1983, at 62.\nIn addition, the general common law definition of death, cessation of respiration and circulation, is\nno longer acceptable by today\xe2\x80\x99s standards. See Towards a Statutory Definition of Death in Illinois, 14 J.\nMar. L. Rev. at 701-13. To illustrate, in Sweet, Brain Death, 299 New Eng. J. of Med. 410-11 (1978),\nthe author, a neurosurgeon, states: \xe2\x80\x9cIndeed, it is clear that a person is not dead unless his brain is\ndead. The time-honored criteria of stoppage of the heartbeat and circulation are indicative of death\nonly when they persist long enough for the brain to die.\xe2\x80\x9d See generally A. Guyton, Textbook of\nMedical Physiology 342 (6th ed. 1981). Moreover, Illinois has enacted the Uniform Anatomical Gift\nAct which states: \xe2\x80\x9c \xe2\x80\x98Death\xe2\x80\x99 means for the purposes of the Act, the irreversible cessation of total\nbrain function, according to usual and customary standards of medical practice.\xe2\x80\x9d Ill.Rev.Stat.1981,\nch. 110 \xc2\xbd, par. 302(b). This definition of death, which is limited to the particular statute, is\nsignificantly different from the general common law definition of death.\nIn order to bridge the gap between the past and present-day meanings of death, 29 states have\nenacted statutes which have a definition of death for general application in their respective states.\nThese statutes fall into three categories: (1) total brain death; (2) total brain death or\ncardiopulmonary death; and (3) total brain death only if artificial means of support prevent\ndetermination of death by traditional means. What all these statutes have in common is their\nrecognition that total brain death is the death of the person.\nOther states have judicially recognized that a person found to have total brain death is legally dead.\nThus, at least 34 states have now either legislatively or judicially recognized this precept. Moreover,\nno case has been found in which total brain death has been rejected as being the death of the person\nwhere the issue has been specifically raised. On this point, in A. Moraczewski & J. Showalter,\n108\n\n\x0cDetermination of Death 30 (1982), the authors state: \xe2\x80\x9cThat courts might not accept [total] brain\ndeath [as the death of the person] is of course theoretically possible. But the fact is that no court has\never rejected it, and given its overwhelming acceptance, none is likely to do so.\xe2\x80\x9d Also, it has been\nstated: \xe2\x80\x9cLegally, medically and morally, this country now generally accepts the concept of brain\ndeath (although state laws defining death are still not completely uniform). Life support systems are\nroutinely turned off when brain activity has irreparably ceased, even though heartbeat and breathing\ncan be sustained artificially.\xe2\x80\x9d Who Lives, Who Dies? Making life\xe2\x80\x99s final decision, Chicago Tribune, May 24,\n1983, \xc2\xa7 1, at 18, col. 1.\nIn the present case, the guardian ad litem contends that if total brain death is to be considered the\ndeath of the person in Illinois, the change in the law should be made by the legislature. This\ncontention was addressed in In re Welfare of Bowman, 94 Wash.2d 407, 617 P.2d 731 (Wash.1980), one\nof the leading cases in which total brain death was judicially recognized as the death of the person.\nThere, the court stated:\nAs was the case in Colorado and Massachusetts [where brain death was judicially\nrecognized], no statute in this state has been enacted to define what constitutes\ndeath as posed by the facts now before us. It is both appropriate and proper,\ntherefore, that this court decide that question. 617 P.2d at 738.\nMoreover, as the court stated in Lovato v. District Court, 198 Cole. 419, 601 P.2d 1072 (Colo. 1979) in\nholding that a person is legally dead if he has sustained irreversible cessation of all functioning of the\ntotal brain:\nWe recognize the authority of, and indeed encourage, the General Assembly to\npronounce statutorily the standards by which death is to be determined in\nColorado. We do not, however, believe that in the absence of legislative action\nwe are precluded from facing and resolving the legal issue of whether\nirretrievable loss of brain function can be used as a means of detecting the\ncondition of death. Under the circumstances of this case we are not only entitled\nto resolve the question, but have a duty to do so. To act otherwise would be to\nclose our eyes to the scientific and medical advances made worldwide in the past\ntwo or three decades. 601 P.2d at 1081.\nAs in Bowman and Lovato, no statute in our state defines what constitutes death as posed by the facts\nnow before us. Our supreme court has held that the proper relationship between the legislature and\nthe judiciary is one of cooperation and assistance in examining and changing the common law to\nconform with the ever-changing demands of the community. Alvis v. Ribar, 85 Ill.2d 1, 23, 52 Ill.\nDec. 23, 33, 421 N.E.2d 886, 896 (1981). When there is a gap in the common law that manifestly\nshould be bridged and the legislature has failed to take remedial action, it is the imperative duty of\nthe judiciary to reform the law to be responsive to the demands of society. Alvis, 85 Ill.2d at 23-24,\n52 Ill.Dec. at 33, 421 N.E.2d at 896. For these reasons, we believe that it is both appropriate and\nproper that we decide the issue that is presented in this case. See Bowman, 617 P.2d at 738; Lovato, 601\nP.2d 1081; State v. Fierro, 124 Ariz. 182, 603 P.2d 74, 77 (Ariz. 1979).\nIn resolving the issue, we recognize the nearly unanimous consensus of the medical community that\nwhen the whole brain no longer functions, the person is dead. See Determination of Death 23. In\naddition, we take into account that the prevailing practice of the medical community nationwide is\n109\n\n\x0cto regard total brain death as the death of the person. See Bowman, 617 P.2d at 733. We also\nrecognize and take into account that the Illinois General Assembly has stated, for purposes of the\nUniform Anatomical Gift Act, that death means the irreversible cessation of total brain function,\naccording to usual and customary standards of medical practice. Ill.Rev.Stat.1981, ch. 110 \xc2\xbd, par.\n302(b). In this regard, we find it significant that the legislature\xe2\x80\x99s definition of death under the\nUniform Anatomical Gift Act conforms to the consensus of the medical community that total brain\ndeath is the death of the person, and that adoption of that definition of death in the present case will\nconform the legal definition of death in Illinois to current medical standards.\nAccordingly, we conclude that a person who has sustained irreversible cessation of total brain\nfunction, according to usual and customary standards of medical practice, is legally dead. However,\nwe recognize that in most instances when a person has sustained irreversible cessation of circulatory\nand respiratory functions according to usual and customary standards of medical practice, both the\nmedical profession and our society accept that the person is dead without the need to assess brain\nfunctions directly. We see no need to change or interfere with this practice judicially. We therefore\nhold that a person is legally dead if he or she has sustained either (1) irreversible cessation of total\nbrain function, according to usual and customary standards of medical practice, or (2) irreversible\ncessation of circulatory and respiratory functions, according to usual and customary standards of\nmedical practice.\nIn the present case, Alex B. Haymer was 7 months old when he was at McGaw Hospital. He was\nattached to a mechanical ventilation system which ventilated his lungs, caused his heart to continue\npumping and sustained some of his other purely biological functions.\nDr. Timothy B. Scarff, a neurosurgeon specializing in pediatric neurosurgery, testified during the\ntrial court hearing that he had examined Alex B. Haymer in the pediatric intensive care unit at the\nhospital. His objective finding was that clinically, the child had suffered total, complete and\nirreversible brain death. Subjectively, he found that the child did not respond to any kind of stimuli\nand had no brain stem reflexes. Also, the child had no pupillary or other eye movement, and he was\nnot breathing by himself.\nScarff also testified that he ordered an EEG, or brain wave test, and a radioactive isotope blood flow\ntest. These tests showed that, in fact, there was no electrical activity in the brain and that there was\nno flow of blood to any part of the brain. After 24 hours, Scarff repeated the EEG examination and\nordered an evoked response test of the brain stem. This second EEG test confirmed that there was\nno electrical activity in the brain. The evoked response test confirmed that there was no activity in\nthe brain stem.\nScarff further testified that as of October 23, 1982, Alex B. Haymer had total and irreversible brain\ndeath and that this diagnosis was confirmed by two other consultants. The diagnosis of brain death\napplied to the entire brain. Also, Scarff testified that there are no recorded incidents of any person\nmeeting these criteria ever regaining any function whatsoever. Scarff testified that his diagnosis and\nconclusions were made according to the usual and customary standards of medical practice. Scarff\xe2\x80\x99s\ntestimony was uncontradicted.\nUnder the circumstances, we believe the record clearly establishes that on October 23, 1982, Alex B.\nHaymer sustained an irreversible cessation of total brain function, according to usual and customary\nstandards of medical practice, and was legally dead as of that date.\n110\n\n\x0cWe next address the question of whether this case should be dismissed on the basis that it became\nmoot when Alex B. Haymer\xe2\x80\x99s heart stopped functioning on November 28, 1982. If the case were to\nbe dismissed due to mootness, the date of death would remain in dispute. The trial court\xe2\x80\x99s order\nprovides that the date of legal death was October 23, 1982, but circulation and respiration did not\ncease until November 28, 1982, which is the same day that the heart stopped functioning. Thus, the\ndate of death to be recorded on the death certificate, a public record, is uncertain. Moreover, since it\nis readily apparent that the general issue involved in the case is likely to recur, and the issue plainly\ninvolves matters of public concern, we are not required to dismiss the case even though the issue\nmay be technically moot. See Johnny Bruce Co. v. City of Champaign, 24 Ill.App.3d 900, 905, 321 N.E.2d\n469, 473 (1974); Lurie v. Village of Skokie, 64 Ill.App.3d 217, 226, 20 Ill.Dec. 911, 919, 380 N.E.2d\n1120, 1128 (1978).\nIn addition, the case should not be dismissed as moot because the very urgency which moved those\nin the medical profession, the county medical examiner and the state to press for prompt action here\nis likely to recur, making it probable that similar cases arising in the future will likewise appear to be\nor become technically moot by ordinary standards before they can be decided by a reviewing court.\nSee Wallace v. Labrenz, 411 Ill. 618, 623, 104 N.E.2d 769, 772 (1952). Evidence gained from\nthousands of patients studied in many centers around the world indicates that a person attached to a\nmechanical ventilation system who has met the brain death criteria would not be expected to\nmaintain a heartbeat for the period of time it would take for appellate review no matter how\nexpeditiously the appellate process proceeds. See The Diagnosis of Stupor and Coma 315; Roe v.\nWade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147, 161 (1973). Thus, the situation before us\nis clearly a situation which is \xe2\x80\x9ccapable of repetition, yet evading review.\xe2\x80\x9d Roe, 410 U.S. at 125, 93\nS.Ct. at 713, 35 L.Ed.2d at 161. We therefore decide that this case should not be dismissed because\nof mootness.\nAccordingly, we conclude that on October 23, 1982, Alex B. Haymer sustained irreversible cessation\nof total brain function, according to usual and customary standards of medical practice, and that he\nwas legally dead as of that date. The order of the circuit court is affirmed.\nAFFIRMED.\n3.4\n\nOther Surviving Spousal Resources\n\nThe main purpose of this chapter has been to examine the steps the law takes to prevent\nspousal disinheritance. In this section, I would like to briefly discuss two other approaches states\nhave taken to achieve that goal. The earliest forms of protection from spousal disinheritance\nadopted in the United States were the common law doctrines of dower and curtesy. Dower gave a\nsurviving widow a lifetime interest in one-third of the property her husband acquired during their\nmarriage. Curtesy afforded a surviving widower slightly more protection because he was entitled to a\nlifetime interest in all of the property his wife obtained while they were married. The intestacy\nstatutes of the majority of states and the Uniform Probate Code have abolished dower and curtesy.\nHowever, a few states still retain the law of dower. In those states, dower applies to protect both\nmen and women. A few state legislatures have adopted the Uniform Probate Code recommendation\nand modified their elective share statutes to consider the marital contributions of the parties\ninvolved. Those legislatures have rejected the \xe2\x80\x9cone size fits all\xe2\x80\x9d approach in favor of permitting the\n111\n\n\x0cprobate code to evaluate each estate based upon the unique circumstances of the parties involved.\nThis section also examines the other resources that may be available to the surviving spouse.\n3.4.1. Social Security and Retirement Benefits\nA surviving spouse is eligible to receive Social Security benefits if the decedent worked long\nenough to qualify for benefits. Social Security usually pays a one-time death benefit of $255 to the\nsurviving spouse. The earliest a surviving spouse can receive benefits based upon age is 60. The\namount of benefits the surviving spouse is able to receive depends on the amount of taxed earnings,\nthe retirement age, and the number of work quarters. The surviving spouse may also have the right\nto receive some of the deceased spouse\xe2\x80\x99s retirement benefits. The federal Employment Retirement\nIncome Security Act of 1974 (ERISA) and the Retirement Equity Act of 1984 mandates that the\nsurviving spouse has an interest in the private pension plan if an employee dies before his or her\nspouse.13\n3.4.2. Homestead, Personal Property Set-Aside, and Family Allowance\nWhen a person dies, the decedent\xe2\x80\x99s surviving spouse and minor children have an interest in\nremaining in the family home. The home usually has sentimental and/or economic value to the\nsurviving family members. Funeral costs and other debts may put the family home at risk. As a\nresult, most state legislatures have enacted statutes to enable the surviving spouse to retain the family\nhome free of the claims of the deceased spouse\xe2\x80\x99s creditors.14 The provisions of state homestead laws\nvary significantly.15\nThe surviving spouse may also have the right to receive a certain amount of the decedent\xe2\x80\x99s\ntangible personal property. That property typically includes household furniture, clothing, cars etc.\nThe surviving spouse has to satisfy specific conditions to obtain the right to receive this property. 16\nUPC \xc2\xa7 2-403 (1990, rev. 2008) limits the personal property set-aside to $15,000. That amount is\nsubject to the cost of living adjustment formula in \xc2\xa7 1-109.\nAll of the states have statutes that permit the probate court to grant the surviving spouse an\nallowance for maintenance and support. The surviving spouse may receive the maintenance\nallowance for a specific period of time or until the probate case is closed. The provisions of UPC \xc2\xa7\n2-04 permits the surviving spouse to receive a reasonable allowance. If the estate does not have\nenough resources to pay all of the decedent\xe2\x80\x99s creditors, the surviving spouse can only receive the\nallowance for one year. Once the estate is closed, maintenance payments to the surviving spouse will\ncease. UPC \xc2\xa7 2-405 gives the personal representative the authority to decide the amount of the\nfamily allowance up to a specified limit without a court order; however, that decision is subject to\njudicial review.\n\nJohn H. Langbein, Susan J. Stabile, and Bruce A. Wolk, Pension and Employee Benefit Law 280-302 (5th ed. 2010).\nSee, e.g., 58 Okl. St. Ann. \xc2\xa7 311 and \xc2\xa7 313 (West 2016); 18 A.M.R.S.A. \xc2\xa7 2-401 (West 2016); O. R.S. \xc2\xa7 2-422 (West\n2016).\n15\nSee Mark E. Osborne, Asset Protection Trust Planning, SW037 ALI-CLE 97 (June 21-26, 2015)(discussing probate\nhomestead laws in various states).\n16\nIn re Estate of Rhea, 257 S.W.3d 787 (TX 2008)(court set aside decedent\xe2\x80\x99s wedding ring for his surviving spouse).\n13\n14\n\n112\n\n\x0c3.4.3\n\nDower\n\nOhio Revised Code Ann. 2103.02\nA spouse who has not relinquished or been barred from it shall be endowed of an estate for life in\none third of the real property of which the consort was seized as an estate of inheritance at any time\nduring the marriage. Such dower interest shall terminate upon the death of the consort except:\n(A) To the extent that any such real property was conveyed by the deceased consort during the\nmarriage, the surviving spouse not having relinquished or been barred from dower therein;\n(B) To the extent that any such real property during the marriage was encumbered by the deceased\nconsort by mortgage, judgment, lien except tax lien, or otherwise, or aliened by involuntary sale, the\nsurviving spouse not having relinquished or been barred from dower therein. If such real property\nwas encumbered or aliened prior to decease, the dower interest of the surviving spouse therein shall\nbe computed on the basis of the amount of the encumbrance at the time of the death of such\nconsort or at the time of such alienation, but not upon an amount exceeding the sale price of such\nproperty.\nIn lieu of such dower interest which terminates pursuant to this section, a surviving spouse shall be\nentitled to the distributive share provided by section 2105.06 of the Revised Code.\nDower interest shall terminate upon the granting of an absolute divorce in favor of or against such\nspouse by a court of competent jurisdiction within or without this state.\nWherever dower is referred to in Chapters 2101 to 2131, inclusive, of the Revised Code, it means\nthe dower to which a spouse is entitled by this section.\n\nArmstrong v. Armstrong, 715 N.E.2d 207 (Ohio App. Ct. 1998)\nDICKINSON, J.\nPlaintiff Irene Armstrong has appealed from a judgment of the Wayne County Probate Court by\nwhich it determined that she was entitled to either a statutory distributive share of her late husband\xe2\x80\x99s\nestate or her dower interest in certain real property, but not both. She has argued that the trial court\nincorrectly held that she must elect between the two. This court reverses the judgment of the trial\ncourt. Because, prior to his death, Irene Armstrong\xe2\x80\x99s late husband conveyed his one-half interest in\nthe marital residence without her consent, her dower interest in that property was not extinguished\nby his death and she was entitled to both that dower interest and a statutory distributive share of the\nrest of his estate.\nI\nIrene Armstrong was married to Norman Armstrong at the time of his death on September 1, 1995.\nLess than a month before his death, apparently because the Armstrongs were in the process of a\ndivorce, Mr. Armstrong quitclaimed his one-half interest in the marital residence to his four adult\n113\n\n\x0cchildren from a previous marriage. Irene Armstrong did not consent to the transfer, nor did she\nwaive her dower interest in the property.\nOn October 2, 1995, Mr. Armstrong\xe2\x80\x99s executor, defendant Patricia Armstrong, filed an application\nto probate Mr. Armstrong\xe2\x80\x99s will. Because Mr. Armstrong\xe2\x80\x99s last will, executed on July 31, 1995, made\nno provision for Irene Armstrong, she elected to take against the will. The trial court held that\nbecause Irene Armstrong elected to take her statutory distributive share of Mr. Armstrong\xe2\x80\x99s estate,\nshe waived her dower interest in any of Mr. Armstrong\xe2\x80\x99s real property. The trial court held that she\ncould elect to take either her dower interest or her statutory distributive share of the estate, but not\nboth. Ms. Armstrong timely appealed to this court.\nII\nMs. Armstrong has asserted that the trial court misconstrued R.C. 21203.02, which provides:\n\xe2\x80\x9cIn lieu of such dower interest which terminates pursuant to this section, a surviving spouse shall be\nentitled to the distributive share provided by section 2105.06 of the Revised Code.\xe2\x80\x9d\nThe trial court found that Irene Armstrong, as surviving spouse, was entitled to her statutory\ndistributive share of Mr. Armstrong\xe2\x80\x99s estate \xe2\x80\x9cin lieu of\xe2\x80\x9d her dower interest in his real property. As\nR.C. 21203.02 explicitly provides, however, the statutory distribution is in lieu of only that dower\ninterest \xe2\x80\x9cwhich terminates pursuant to this section.\xe2\x80\x9d\n\xe2\x80\x9c[P]ursuant to this section\xe2\x80\x9d is explained by the paragraphs immediately preceding it, which provide:\n\xe2\x80\x9cA spouse who has not relinquished or been barred from it shall be endowed of an estate for life in\none third of the real property of which the consort was seized as an estate of inheritance at any time\nduring the marriage. Such dower interest shall terminate upon the death of the consort except:\n\xe2\x80\x9c(A) To the extent that any such real property was conveyed by the deceased consort during the\nmarriage, the surviving spouse not having relinquished or been barred from dower therein.\xe2\x80\x9d\nAlthough dower rights normally terminate \xe2\x80\x9cupon the death of the consort,\xe2\x80\x9d an exception is made\nfor situations, such as here, in which the decedent, prior to his death, conveyed real property in\nwhich the surviving spouse had not waived her dower interest. Because the trial court incorrectly\nheld that Irene Armstrong was required to elect between her dower interest in the real property\nconveyed without her having relinquished her dower interest and her statutory distributive share of\nthe estate, the judgment of the trial court is reversed. She is entitled to a statutory distributive share\nof Mr. Armstrong\xe2\x80\x99s estate and her dower interest in his share of the marital residence. According to\nR.C. 2103.03, Irene Armstrong\xe2\x80\x99s dower interest is a life estate in one third of Mr. Armstrong\xe2\x80\x99s onehalf interest in the marital residence. To this extent, Irene Armstrong\xe2\x80\x99s assignment of error is\nsustained.\nIII\nIrene Armstrong\xe2\x80\x99s assignment of error is sustained. The judgment of the trial court is reversed.\nJudgment reversed and cause remanded.\n114\n\n\x0c3.4.4\n\nFractionalize Forced Share\n\nIn re Estate of Soard, 173 S.W.3d 22 (Tenn. App. Ct. 2005)\nCHARLES D. SUSANO, JR.,\nThis case involves a dispute between a widow and the personal representative of her husband\xe2\x80\x99s\nestate. The parties differ as to the correct interpretation of Tenn. Code Ann. \xc2\xa7 31-4-101 (2001), the\nstatute setting forth the criteria pursuant to which a surviving spouse\xe2\x80\x99s elective share is computed.\nThe trial court adopted the estate\xe2\x80\x99s construction of the statute and subtracted the widow\xe2\x80\x99s exempt\nproperty, homestead allowance, and year\xe2\x80\x99s support allowance from the value of her percentage share\nof the net estate in arriving at the elective-share amount to which she is entitled. We disagree with\nthe trial court\xe2\x80\x99s interpretation of the statute. Accordingly, we reverse the judgment of that court.\nI.\nThe parties filed a stipulation of material facts in the trial court. The stipulation provides, in\npertinent part, as follows:\nFrank Soard died on the 14th day of July, 2003.\nFrank Soard was survived by his wife, Sarah Soard, whom he had married on the 24th day of June,\n1995.\nThe Parties agreed that pursuant to [Tenn. Code Ann.] \xc2\xa7 30-2-209, Sarah Soard is entitled to\npayment of $5,000.00 for Homestead.\nThe Parties agreed that pursuant to [Tenn. Code Ann.] \xc2\xa7 30-2-102, Sarah Soard is entitled to [a]\nYear\xe2\x80\x99s Support in the amount of $13,656.00.\nThe Parties agreed that pursuant to [Tenn. Code Ann.] \xc2\xa7 30-2-101, Sarah Soard is entitled to\n$37,848.92 in Exempt Property.\nInasmuch as Frank and Sarah Soard had been married more than six years but less than nine years,\nthe Parties agreed that Sarah Soard was entitled to an Elective Share of Thirty Percent (30%) of the\nnet estate as set out in [Tenn. Code Ann.] \xc2\xa7 31-4-101 (a).\nPursuant to [Tenn. Code Ann.] \xc2\xa7 31-4-101(b), the Parties agreed to the following determination of\nthe net estate as of November 11, 2003, the Parties acknowledging, however, that the administrative\nexpenses are subject to increase based on attorneys fees and expenses incurred in this Elective Share\nlitigation:\n\n115\n\n\x0cGross Estate\n\n$872,253.32\n\nLess:\nORNL Mortgage\n\n$29,408.23\n\nFuneral and Admin. Exp.\n\n78,795.27\n\nExempt Property\n\n37,848.92\n\nHomestead\n\n5,000.00\n\nYear\xe2\x80\x99s Support\n\n13,656.00\n\n164,708.42\n\nNet Estate\n\n$707,544.90\n\n30% of Net Estate\n\n$212,263.47\n\nAfter determining Thirty Percent (30%) of the net estate as set out in [ Tenn. Code Ann.] \xc2\xa7 31-4101(a) and (b), the Parties agreed that said maximum Elective Share amount is $212,263.47, but the\nParties disagreed as to how that amount is to be reduced pursuant to [Tenn. Code Ann.] \xc2\xa7 31-4101(c). (Paragraph numbering in original omitted). Although not a part of the parties\xe2\x80\x99 written\nstipulation, it is abundantly clear from the record that Ms. Soard filed a petition for an elective share.\nII.\nTenn. Code Ann. \xc2\xa7 31-4-101, as it existed at the time of Mr. Soard\xe2\x80\x99s death, i.e., July 14, 2003,\nprovides as follows:\n(a)(1) The surviving spouse of an intestate decedent, or a surviving spouse who elects against a\ndecedent\xe2\x80\x99s will, has a right of election, unless limited by subsection (c), to take an elective-share\namount equal to the value of the decedent\xe2\x80\x99s net estate as defined in subsection (b), determined by\nthe length of time the surviving spouse and the decedent were married to each other, in\naccordance with the following schedule:\n\n116\n\n\x0cIf the decedent and the surviving spouse were married to The elective-share percentage is:\neach other:\nless than 3 years\n10% of the net estate\n3 years but less than 6 years\n\n20% of the net estate\n\n6 years but less than 9 years\n\n30% of the net estate\n\n9 years or more\n\n40% of the net estate\n\n(2) For purposes of determining the total number of years to be applied to the computation\nprovided in this subsection, the number of years persons are married to the same person shall be\ncombined. The years do not have to be consecutive, but may be separated by divorce. All years\nmarried shall be counted toward the total number of years for purposes of this section.\n(b) The value of the net estate includes all of the decedent\xe2\x80\x99s real and personal property subject\nto disposition under the provisions of the decedent\xe2\x80\x99s will or the laws of intestate succession,\nreduced by the following: secured debts to the extent that secured creditors are entitled to\nrealize on the applicable collateral, funeral and administration expenses, and award of exempt\nproperty, homestead allowance and year\xe2\x80\x99s support allowance.\n(c) After the elective-share amount has been determined in accordance with the foregoing\nsubsections (a) and (b), the amount payable to the surviving spouse by the estate shall be reduced by the value\nof all assets includable in the decedent\xe2\x80\x99s gross estate which were transferred, or deemed transferred, to the surviving\nspouse or which were for the benefit of the surviving spouse. For purposes hereof, the decedent\xe2\x80\x99s gross\nestate shall be determined by the court in the same manner as for inheritance tax purposes\npursuant to [Tenn. Code Ann.] \xc2\xa7\xc2\xa7 67-8-301 et. seq., except that the value of any life estate or\ntrust for the lifetime benefit of the surviving spouse shall be actuarially determined.\n(d) The elective-share amount payable to the surviving spouse is exempt from the claims of the\nunsecured creditors of the decedent\xe2\x80\x99s estate.\n(Emphasis added). For ease of reference, we will hereinafter sometimes refer to this statute as \xe2\x80\x9cthe\nelective-share statute\xe2\x80\x9d or \xe2\x80\x9cthe current elective-share statute.\xe2\x80\x9d\nIII.\nThe issue before us can be simply stated as follows:\nDoes the \xe2\x80\x9creduction\xe2\x80\x9d language set forth in subsection (c) of Tenn. Code Ann. \xc2\xa7 31-4-101\xe2\x80\x94\xe2\x80\x9cthe\namount payable to the surviving spouse by the estate shall be reduced by the value of all assets\nincludable in the decedent\xe2\x80\x99s gross estate which were transferred, or deemed transferred, to the\nsurviving spouse or which were for the benefit of the surviving spouse\xe2\x80\x9d\xe2\x80\x94contemplate the\ndeduction, from a surviving spouse\xe2\x80\x99s percentage share of the net estate, of the value of the\nsurviving spouse\xe2\x80\x99s exempt property, homestead allowance, and year\xe2\x80\x99s support allowance?\n117\n\n\x0cThe trial court held that \xe2\x80\x9csubsection (c) precisely states that all assets includable in the decedent\xe2\x80\x99s\ngross estate which are payable to the surviving spouse must be credited against the maximum\n[e]lective [s]hare to determine the actual amount of the [e]lective [s[hare payable to the surviving\nspouse.\xe2\x80\x9d In its order, the trial court concluded that\nbased [up]on the clear language of [Tenn. Code Ann.] \xc2\xa7 31-4-101(c), the amounts\npaid to the surviving spouse for [h]omestead, [y]ear\xe2\x80\x99s [s]upport and [e]xempt\n[p]roperty, as assets included in the decedent\xe2\x80\x99s gross estate, are sums which must\nbe credited against the maximum amount available as an [e]lective [s]hare to\ndetermine the amount \xe2\x80\x9cpayable\xe2\x80\x9d to the surviving spouse.\nAs far as we can determine, this case presents a question of first impression.\nSince the material facts are not in dispute, our de novo review is one of law and, hence, unburdened\nby a presumption of correctness as to the trial court\xe2\x80\x99s judgment. Southern Constructors, Inc. v. London\nCo. Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001).\nIV.\nIn the instant case, the parties stipulate that the gross estate is valued at $872,253.32. However, they\ndo not identify the component parts of the \xe2\x80\x9cgross estate.\xe2\x80\x9d Furthermore, there is nothing in the other\nparts of the record which sets forth with specificity the items included within this concept. However,\nsince the \xe2\x80\x9cgross estate\xe2\x80\x9d stipulation reflects that it is made \xe2\x80\x9c[p]ursuant to [Tenn. Code Ann.] \xc2\xa7 31-4101 (b),\xe2\x80\x9d we assume that this starting-point number of $872,253.32 comprises, in the words of the\naforesaid statutory provision, the value of \xe2\x80\x9call of the decedent\xe2\x80\x99s real and personal property subject to\ndisposition under the provisions of the decedent\xe2\x80\x99s will or the laws of intestate succession.\xe2\x80\x9d 2 It is\nclear that this language contemplates assets that pass in probate and not those that pass outside of\nprobate.\nThe parties further stipulate\xe2\x80\x94again pursuant to Tenn. Code Ann. \xc2\xa7 31-4-101 (b)\xe2\x80\x94that the value of\nthe \xe2\x80\x9cnet estate\xe2\x80\x9d is $707,544.90. They also agree that the maximum elective-share amount,\ndetermined in accordance with subsections (a) and (b) of the elective-share statute, is $212,263.47.\nFinally, they stipulate that subsection (c) of the elective-share statute requires that Ms. Soard\xe2\x80\x99s\nelective- share amount be reduced by the following items:\nWe now reach the point of the parties\xe2\x80\x99 very sharp disagreement. The estate argues that, even though\nMs. Soard\xe2\x80\x99s award of exempt property, homestead allowance, and year\xe2\x80\x99s support allowance have\nalready been subtracted from the value of \xe2\x80\x9cthe decedent\xe2\x80\x99s real and personal property subject to\ndisposition under the provisions of the decedent\xe2\x80\x99s will or the laws of intestate succession\xe2\x80\x9d as a part\nof the computation of the net estate under subsection (b) of the elective-share statute, these three\nitems must be subtracted again, this time from the value of the widow\xe2\x80\x99s percentage share of the net\nestate, in order to arrive at the elective-share amount payable to the surviving spouse. The estate\nmaintains that the further deduction of these three statutory entitlements is mandated by subsection\n(c) of the elective-share statute.\nV.\n118\n\n\x0cThe effect of the parties\xe2\x80\x99 disagreement in monetary terms is illustrated thusly:\nWidow\xe2\x80\x99s\nComputation\n\nEstate\xe2\x80\x99s\nComputation\n\nElective-share amount per subsections (a) & (b)\n\n$212,263.47\n\n$212,263.47\n\nLess: Agreed-upon deductions\n\n21,741.82\n\n21,741.82\n\n$190,521.65\n\n$190,521.65\n\nLess: Widow\xe2\x80\x99s Exempt Property, Homestead, and Year\xe2\x80\x99s N/A\nSupport\n\n56,504.92\n\nElective- Share Amount due Widow\n\n$134,016.73\n\n$190,521.65\n\nVI.\nMs. Soard argues that the critical language in subsection (c) of the elective-share statute pertains to\nassets that are transferred to a surviving spouse outside the estate. She points to language in our case\nof In re Estate of Morris, 104 S.W.2d 855 (Tenn.Ct.App.2002), which she claims is supportive of her\nposition. She also relies upon an illustration of how the elective-share statute is applied as found in\n18 Albert W. Secor, Tennessee Practice: Tennessee Probate \xc2\xa7 10.5 (2d ed.2002). She notes that in neither\nauthority is mention made of subtracting exempt property, homestead or the year\xe2\x80\x99s support\nallowance from the surviving spouse\xe2\x80\x99s percentage share of the net estate.\nThe widow further argues that the estate\xe2\x80\x99s interpretation of the statute runs afoul of well-established\nrules of statutory construction. She contends that to construe the statute as requiring the deduction\ntwice of the aforesaid three items \xe2\x80\x9cwould frustrate the purpose of the legislation.\xe2\x80\x9d She argues that the\ninterpretation placed on the statute by the estate renders this legislative enactment \xe2\x80\x9cabsurd, unjust or\nfutile.\xe2\x80\x9d Finally, the widow argues that the double deduction of these three items \xe2\x80\x9cwould not be\nsensible, would work a manifest inconvenience, would produce an absurd result and would be\nunjust.\xe2\x80\x9d\nVII.\nThe estate counters by pointing out that the \xe2\x80\x9creduction\xe2\x80\x9d concept embodied in subsection (c) of the\nelective-share statute was not in the elective-share statute in effect prior to the amendments effective\nJanuary 1, 1998. Those amendments deleted the earlier version of the elective-share statute in its\nentirety. The estate reads the language of subsection (c) broadly to mean, in the language of the\nestate\xe2\x80\x99s brief, that there is a credit against the surviving spouse\xe2\x80\x99s percentage share of the net estate\n119\n\n\x0cfor \xe2\x80\x9call items in the gross estate that the spouse otherwise receives.\xe2\x80\x9d The estate notes that subsection\n(c) of the elective-share statute expressly provides that the \xe2\x80\x9cgross estate,\xe2\x80\x9d as that concept is used in\nthat subsection, \xe2\x80\x9cshall be determined by the court in the same manner as for inheritance tax\npurposes.\xe2\x80\x9d Tenn. Code Ann. \xc2\xa7 31-4-101(c). The estate contends that exempt property, homestead\nand a year\xe2\x80\x99s support are not excluded from the gross estate for inheritance tax purposes. In support\nof this argument, the estate relies upon the provisions of Tenn. Code Ann.] \xc2\xa7 67-8-303 (2003), a\nsection of the inheritance tax statutory scheme describing the types of property subject to that tax.\nAs can be seen, the property which is subject to the tax is broadly stated and does not contain an\nexpress exclusion for exempt property, homestead and a year\xe2\x80\x99s support. The estate argues that\nsubsection (c) is unambiguous, and that our obligation is to enforce its provisions regardless of how\nwe feel about the justice of its application to the facts of the case at bar.\nVIII.\nIn this case, we are called upon to interpret and apply the provisions of the elective-share statute. In\nEastman Chem. Co. v. Johnson, 151 S.W.3d 503 (Tenn.2004), the Supreme Court recited many of the\ngeneral principles pertaining to statutory construction:\nIssues of statutory construction are questions of law that this Court reviews de novo without any\npresumption of correctness.\nOur duty in construing statutes is to ascertain and give effect to the intention and purpose of the\nlegislature. \xe2\x80\x9c\xe2\x80\x98Legislative intent is to be ascertained whenever possible from the natural and ordinary\nmeaning of the language used, without forced or subtle construction that would limit or extend the\nmeaning of the language.\xe2\x80\x99 \xe2\x80\x9d\nWhen the statutory language is clear and unambiguous, we must apply its plain meaning in its\nnormal and accepted use, without a forced interpretation that would limit or expand the statute\xe2\x80\x99s\napplication. Where an ambiguity exists, we must look to the entire statutory scheme and elsewhere\nto ascertain the legislative intent and purpose. The statute must be construed in its entirety, and it\nshould be assumed that the legislature used each word purposely and that those words convey some\nintent and have a meaning and a purpose. The background, purpose, and general circumstances\nunder which words are used in a statute must be considered, and it is improper to take a word or a\nfew words from its context and, with them isolated, attempt to determine their meaning.\nId. at 506-07 (citations omitted). In construing legislation, courts must harmonize, if possible, all\nparts of the legislature\xe2\x80\x99s enactment. See Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968)\n(\xe2\x80\x9cA statute should be construed, if practicable, so that its component parts are consistent and\nreasonable.... Inconsistent phrases are to be harmonized, if possible, so as to reach the legislative\nintent.\xe2\x80\x9d). See also State v. Netto, 486 S.W.2d 725, 729 (Tenn.1972).\n\xe2\x80\x9cA construction will be avoided, if possible, that would render one section of the act repugnant to\nanother. Or one that would produce an absurd result.\xe2\x80\x9d Tenn. Elec. Power Co. v. City of Chattanooga, 172\nTenn. 505, 114 S.W.2d 441, 444 (1937) (citations omitted). See also Turner v. Eslick, 146 Tenn. 236,\n240 S.W. 786, 789 (1922).\n\xe2\x80\x9cWhen the legislature enacts provisions of a uniform or model act without significant alteration, it\nmay be generally presumed to have adopted the expressed intention of the drafters of that uniform\n120\n\n\x0cor model act. However, when the legislature makes significant departures from the text of that\nuniform act, we must likewise presume that its departure was meant to express an intention different\nfrom that manifested in the uniform act itself.\xe2\x80\x9d Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705, 713-14\n(Tenn.2002)(citations omitted).\nIX.\nOur interpretation of the current version of the elective-share statute begins with a look back at the\nprior version of that statute. Before January 1, 1998, the elective-share statute in Tennessee provided\nas follows:\n(a) A decedent\xe2\x80\x99s surviving spouse has the right to elect to take an elective share. The elective share\nis one third (1/3) of the decedent\xe2\x80\x99s net estate as defined in subsection (b). The right to elect an\nelective share is available to the surviving spouse of an intestate decedent and a testate decedent if\nthe surviving spouse elects against the decedent\xe2\x80\x99s will. When the elective share is determined, it is\nexempt from the unsecured debts of the decedent incurred after April 1, 1977. In determining the\nelective share, it is not reduced by any estate or inheritance taxes.\n(b) The net estate includes all of the decedent\xe2\x80\x99s real and personal property subject to disposition\nunder the terms of the decedent\xe2\x80\x99s will or the laws of intestate succession reduced by funeral and\nadministration expenses, homestead, exemptions and year\xe2\x80\x99s support.\n[Tenn. Code Ann.] \xc2\xa7 31-4-101 (repealed effective January 1, 1998, by 1997 Tenn. Pub. Acts 426, \xc2\xa7\n17).\nUnder the earlier version of the statute, the method of calculating the surviving spouse\xe2\x80\x99s elective\nshare was clear and relatively simple to apply. A surviving spouse had an absolute right \xe2\x80\x9cto elect to\ntake an elective share.\xe2\x80\x9d Once the election was made, the surviving spouse, regardless of the length of\nhis or her marriage to the decedent, was entitled to one-third of a relatively well-defined concept, i.e.,\nthe value of the real and personal property that passes under the decedent\xe2\x80\x99s will or the laws of\nintestate succession reduced by funeral and administration expenses, homestead, exempt property,\nand a year\xe2\x80\x99s support allowance. There were no further reductions.\nIn 1995, the 99th Tennessee General Assembly adopted House Joint Resolution No. 223 appointing\na Special Joint Commission whose charge was to \xe2\x80\x9c[s]tudy all aspects of the probate law in Tennessee\nwith a view towards adopting the Uniform Probate Code by revising, updating, and clarifying the\nlaw so that it may give clear and consistent guidance to those using it and those affected by the law\nin order to ensure, to the extent possible, the uniformity of probate law from any legal uncertainties\nrelated to this important process; and [r]ecommend legislation to effect the above goals.\xe2\x80\x9d\n(Numbering in original omitted). The commission was directed to file \xe2\x80\x9cthe report of its findings and\nany recommendations concerning legislation, with the 99th General Assembly no later than\nDecember 15, 1995.\xe2\x80\x9d\nAs directed by the General Assembly, the commission filed a report setting forth its fact-finding\nprocess, its decision-making process, and its recommendations. The report notes that the\ncommission found \xe2\x80\x9clittle or no public support for the adoption of the Uniform Probate Code in its\nentirety.\xe2\x80\x9d At another point in the report, the commission noted that it \xe2\x80\x9cdecided that a wholesale\nrevision of the probate law at this time is unnecessary and that the Uniform Probate Code, which\n121\n\n\x0calso covers fields other than those typically considered to be of a probate nature, should not be\nadopted as a whole for various reasons.\xe2\x80\x9d\nThe commission made 15 numbered recommendations, one of which is the following:\nTo modernize the elective share for surviving spouses to take into account the\nlength of the marriage and to redefine how the amount is ascertained.\nIts recommendations were, in the language of the report, \xe2\x80\x9cincorporated into a draft of a legislative\nbill which accompanie[d][the] report.\xe2\x80\x9d\nBy Chapter 426, Public Acts of 1997, the General Assembly, without discussion, adopted verbatim\nthat portion of the proposed legislation dealing with a surviving spouse\xe2\x80\x99s elective share by deleting\nthe prior elective-share statute in its entirety and by substituting the current version of the electiveshare statute. As previously noted, the new version became effective January 1, 1998, and applies to\nall estates of decedents dying on or after that date.\nThe current version of the elective-share statute retains a few of the features of the old statute, i.e.,\nthe right to elect is still unconditional; the starting point of the calculation, once the percentage of\nentitlement is established, is still \xe2\x80\x9cthe decedent\xe2\x80\x99s real and personal property subject to disposition\nunder the provisions of the decedent\xe2\x80\x99s will or the laws of intestate succession\xe2\x80\x9d; the value of the\naforesaid concept is still reduced by funeral and administration expenses, homestead, exempt\nproperty, and the year\xe2\x80\x99s support, before the percentage of entitlement is applied to the balance; and\nthe surviving spouse\xe2\x80\x99s entitlement under the statute is still not subject to the claims of the decedent\xe2\x80\x99s\nunsecured creditors.\nWhile there are similarities between the two versions, there are striking differences, both in concept\nand language.\nThe current version of the elective-share statute replaces the \xe2\x80\x9cone size fits all\xe2\x80\x9d approach of the old\nstatute\xe2\x80\x94that all surviving spouses were previously entitled to a one-third elective share\xe2\x80\x94with the\nphased-in approach of the Uniform Probate Code (\xe2\x80\x9cthe UPC\xe2\x80\x9d) under which the percentage amount\nof a surviving spouse\xe2\x80\x99s elective share increases as the length of the parties\xe2\x80\x99 marriage increases. While\nadopting the UPC\xe2\x80\x99s approach, the current statute utilizes only four levels of percentage entitlement\ncompared to the 16 levels of the UPC. The current statute does adopt the UPC provision that all\nyears of marriage between the parties are counted even if those periods \xe2\x80\x9cmay be separated by\ndivorce.\xe2\x80\x9d\nWhile the current version of the elective-share statute retains the starting point of \xe2\x80\x9cthe decedent\xe2\x80\x99s\nreal and personal property subject to disposition under the provisions of the decedent\xe2\x80\x99s will or the\nlaws of intestate succession,\xe2\x80\x9d the new version, in subsection (b), introduces a new deduction from\nthe concept: \xe2\x80\x9csecured debts to the extent that secured creditors are entitled to realize on the\napplicable collateral.\xe2\x80\x9d Tenn. Code Ann.] \xc2\xa7 31-4-101 (b).\nAs can be seen, the new version of the elective-share statute has significantly changed the method of\ndetermining the surviving spouse\xe2\x80\x99s elective-share percentage. Under the new approach, some\nsurviving spouses will receive more than the previous one-third share while others will receive less.\nWhile this was a major change introduced by the amendments effective January 1, 1998, it is not the\none at issue in the case at bar. That \xe2\x80\x9cdistinction\xe2\x80\x9d belongs to the commission\xe2\x80\x99s recommendation as to\n122\n\n\x0c\xe2\x80\x9chow the [elective-share] amount is ascertained.\xe2\x80\x9d\nX.\nIn adopting House Joint Resolution No. 223, the General Assembly was influenced by the 1990\nadoption of a new version of the UPC by the National Conference of Commissioners on Uniform\nState Laws. The underlying theory behind the significant revisions to the elective share sections of\nthe UPC has been described thusly:\nIn constructing a new elective share, the drafters of the UPC applied two theories, both described in\nthe General Comment to the elective share section of the 1990 UPC. Unif. Prob. Code art. II, pt. 2,\ngen. cmt. (1993). One theory, the marital partnership theory, views marriage as an economic\npartnership to which both spouses contribute productive effort. This theory holds that each spouse\nis entitled to one-half of the economic gains of the marriage. The other theory, the need-based\ntheory, holds that a decedent spouse should provide for the surviving spouse. A married couple\xe2\x80\x99s\nmoral duties to one another, the expectations of the surviving spouse and public concern that the\nsurviving spouse not be left to depend on the state for support form the basis of this theory. Taken\ntogether, the two theories establish a duty of spousal support that arises in marriage and continues to\nsome degree after death. Therefore, each spouse has a right to a share of the economic gains of both\nspouses during the marriage.\nTo implement the need-based theory, the 1990 UPC creates a supplemental elective share of\n$50,000. To the extent the elective share, calculated as a percentage of the augmented estate, is less\nthan $50,000, the surviving spouse is entitled to a supplemental elective share equal to the\ndifference. Stated another way, the minimum amount of a spouse\xe2\x80\x99s elective share is $50,000. Because\nthe augmented estate includes the surviving spouse\xe2\x80\x99s assets, the spouse will receive a supplemental\nelective share only if his or her own assets are less than $50,000.\nTo implement the partnership theory, the 1990 UPC creates an augmented estate that includes\nproperty owned and controlled by both spouses\xe2\x80\x94probate property and property passing under will\nsubstitutes. The guiding principle of giving each spouse one-half of the marital property made it\nnecessary to look at the assets owned by both spouses and not just property controlled by the\ndecedent. In contrast to the prior UPC, the 1990 UPC makes no exceptions for insurance [,]\nannuities and pensions.\nA difficulty faced by the drafters of the 1990 UPC is that not all property owned by spouses is\nmarital property. A spouse may have inherited property or acquired property before marriage. To\navoid a post-death determination of marital and separate property, the drafters devised a phased-in\nelective share based on the length of the marriage. The goal of this provision was to approximate\nincreased marital sharing and the increased contribution to the acquisition of marital assets as a\nmarriage endures. The drafters concluded that \xe2\x80\x9c[b]ecause ease of administration and predictability of\nresult are prized features of the probate system,\xe2\x80\x9d a \xe2\x80\x9cmechanically determined approximation\nsystem\xe2\x80\x9d makes sense. Unif. Prob. Code art. II, pt. 2, gen. cmt. (1993). Susan N. Gary, Share and Share\nAlike? The UPC\xe2\x80\x99s Elective Share, 12 Prob. & Prop. 18, 20 (1998). The author opined as follows\nregarding the amendments to the Tennessee elective share statute effective January 1, 1998:\nA law adopted in Tennessee in 1997 borrows concepts from the UPC and uses them to modify what is still\nessentially a traditional elective share statute. The new Tennessee statute phases in the elective share\n123\n\n\x0cpercentage from 10% for less than three years of marriage to 40% for marriages lasting nine\nyears or more. The percentage is applied to the \xe2\x80\x9cnet estate,\xe2\x80\x9d which the law defines as the\nprobate estate less certain secured debts, funeral and administration expenses and family\nallowances. Property that the surviving spouse receives, whether probate or nonprobate property, reduces the\nelective share. It appears that the law will charge disclaimed interests against the surviving\nspouse because the statute refers to assets \xe2\x80\x9cwhich were transferred, or deemed transferred ... or\nwhich were for the benefit of the surviving spouse.\xe2\x80\x9d Tenn. Code Ann.] \xc2\xa7 31-4-101(c)(1997).\nThe Tennessee statute considers the augmented estate, determined by reference to the Tennessee inheritance tax\nstatute, only to reduce the surviving spouse\xe2\x80\x99s share. If the decedent dies holding only nonprobate assets,\nthe value of the net estate, and thus the elective share, will be zero....\nId. at 22 (emphasis added).\nIt is clear to us that the changes to the Tennessee elective-share statute effective January 1, 1998,\nwhile adopting some of the thrust of the 1990 changes to the UPC elective share provisions, depart\nfrom the model act in significant and substantial ways. First, the 1997 amendments did not adopt\nthe UPC\xe2\x80\x99s concept of a minimum elective share stated in monetary terms. It is clear that there is no\nsuch monetary minimum share under the current version of our statute. Second, as pointed out in\nthe article just quoted, the current elective-share statute considers the concept of an \xe2\x80\x9caugmented\nestate\xe2\x80\x9d to reduce the surviving spouse\xe2\x80\x99s elective share, but continues to use the \xe2\x80\x9cnet estate\xe2\x80\x9d concept\nin defining the amount to which the surviving spouse\xe2\x80\x99s percentage is applied.\nThe differences between the current version of the elective-share statute and the provisions of the\nUPC relating to a surviving spouse\xe2\x80\x99s elective share are so significant as to lead us to conclude that\nthe legislature\xe2\x80\x99s departure \xe2\x80\x9cwas meant to express an intention different from that manifested in the\nuniform act itself.\xe2\x80\x9d Heirs of Ellis, 71 S.W.3d at 713-14. Therefore, even though it is clear that the\nSpecial Joint Commission was directed by the General Assembly to study the probate laws of\nTennessee \xe2\x80\x9cwith a view towards adopting the [UPC],\xe2\x80\x9d the commission and later the legislature itself\nchose not to adopt the expansive and far-reaching language of the UPC as it pertains to the\nmethodology of computing the surviving spouse\xe2\x80\x99s elective share, other than the adoption of the\ntheory of the UPC that the percentage share should be tied to the length of the parties\xe2\x80\x99 marriage. We\nconclude from this that the intention behind the UPC is of no particular help in determining\nwhether the language of subsection (c) of the elective share statute contemplates the reduction of\nhomestead, exempt property, and year\xe2\x80\x99s support from the surviving spouse\xe2\x80\x99s percentage share of the\nnet estate.\nWe have discussed the UPC extensively simply because of the General Assembly\xe2\x80\x99s charge to the\ncommission. In view of this charge, we felt it essential to expressly point out that the legislature\xe2\x80\x99s\n1997 amendments evidence a general intention to go in a direction other than the one charted by the\nUPC. For the purposes of illustration and comparison, we have attached a copy of the UPC\nprovisions addressing the surviving spouse\xe2\x80\x99s elective share, as last amended in 1993, as an appendix\nto this opinion. In the interest of brevity, we have omitted the official comments and illustrations.\nXI.\nThe estate urges us to hold, as did the trial court, that the elective-share statute requires that the\nsurviving spouse\xe2\x80\x99s statutory entitlements to homestead, exempt property, and a year\xe2\x80\x99s support\n124\n\n\x0callowance be deducted twice as a part of the computation outlined in the elective share statute, i.e.,\nfirst, in reducing the gross estate passing in probate to arrive at the net estate subject to the surviving\nspouse\xe2\x80\x99s percentage share, and, second, from the product of the multiplication of the net estate by\nthe surviving spouse\xe2\x80\x99s percentage share. We agree with the widow in this case that such an\ninterpretation leads to an absurd result.\nWe find ambiguity in the wording of the statute. We note that while the legislature referred to the\nthree statutory entitlements by name in subsection (b), there is no such explicit reference in\nsubsection (c). The fact that the legislature referred to these statutory entitlements by name in\nsubsection (b) clearly shows that they were on the mind of that body when it adopted the 1997\namendments. Query: If the legislature had intended, in subsection (c), to mandate the deduction of\nthese same three items a second time in this continuing statutory computation, why did it not\nexpressly refer to them as it did in subsection (b)? In other words, if the legislature had intended to\ninclude these items in the general language of subsection (c), why did it not refer to the decedent\xe2\x80\x99s\n\xe2\x80\x9cgross estate\xe2\x80\x9d as \xe2\x80\x9cthe gross estate, including the surviving spouse\xe2\x80\x99s homestead, exempt property, and a year\xe2\x80\x99s\nsupport \xe2\x80\x9d or by the use of similar language?\nThe current version of the elective-share statute is hardly a model of clarity as far as the interplay\nbetween subsections (b) and (c) is concerned. While the author quoted earlier in this opinion may be\nright when she opines that our legislature \xe2\x80\x9cborrow[ed] concepts from the UPC and use[d] them to\nmodify what is still essentially a traditional elective[-]share statute,\xe2\x80\x9d it is clear to us that the legislature\nrejected the comprehensive statutory scheme thought to be necessary by the Commissioners on\nUniform State Law to effectuate their desire to adopt a \xe2\x80\x9cmarital partnership theory\xe2\x80\x9d and a \xe2\x80\x9cneedbased theory\xe2\x80\x9d in the elective-share concept. By adopting bits and pieces from the earlier version of\nthe elective-share statute as well as concepts from the UPC and then \xe2\x80\x9ccutting and pasting\xe2\x80\x9d them\nwith some new language into a much shorter version of an elective-share statute, the legislature has\ncreated more questions than answers. If the legislature has rejected the UPC\xe2\x80\x99s dual theories\nmentioned above, either in whole or in part, and we believe it has, what is the theory behind the\ncurrent version of the elective-share statute? What is the purpose or theory underlying the deduction\nset forth in subsection (c)? We are left to ponder these and related questions. Assuming that the\nestate is correct in its interpretation of subsection (c), what is the rationale behind the deduction of\nthe surviving spouse\xe2\x80\x99s statutory entitlements from the maximum elective share after these very same\nitems have already been \xe2\x80\x9ccleared out\xe2\x80\x9d of the gross estate as a part of the computation leading to the\ncalculation of that same maximum elective-share amount?\nWe have concluded, and so hold, that the language of subsection (c) of the elective-share statute\ncannot, consistent with the clear meaning of subsection (b), be read to include homestead, exempt\nproperty, and a year\xe2\x80\x99s support.\nWe believe the reason behind the deduction of the surviving spouse\xe2\x80\x99s statutory entitlements from\nthe gross probate estate under subsection (b) is clear: it is to remove these items from the assets\npassing in probate before the surviving spouse\xe2\x80\x99s percentage is applied. The deduction at this point in\nthe computation ensures that the surviving spouse does not get these three statutory entitlements\nplus a percentage of the same items. We believe the deduction at this stage of the statutory\ncomputation was intended to avoid \xe2\x80\x9cdouble-dipping.\xe2\x80\x9d Thus, the deduction from the probatable\nassets is reasonable and logical.\nWe cannot say the same for a subsequent deduction of the same items as a part of what is essentially\n125\n\n\x0ca continuing statutory computation. Such a deduction, in the overall scheme of things, is illogical\nand defies explanation. We recognize that it is the prerogative of the legislature to adopt such\nlegislation as it deems appropriate so long as it does not offend a provision of the United States\nConstitution or the Tennessee Constitution. Certainly, it has the authority to enact legislation which\nappears on its face to be illogical should it choose to do so. However, we believe that, had the\nlegislature intended to deduct these three items a second time in the same statutory computation, it\nwould have referred to them by name in subsection (c) just as it did in subsection (b).\nIf one of the purposes behind the current version of the elective-share statute is to reduce the\nsurviving spouse\xe2\x80\x99s elective share to compensate for the surviving spouse\xe2\x80\x99s receipt of homestead,\nexempt property, and a year\xe2\x80\x99s support, we believe the legislature could have accomplished this\nobjective in one of at least two ways. First, it could have\xe2\x80\x94and we believe it did\xe2\x80\x94construct a\ncomputation that removes these items from the gross probatable estate before the surviving\nspouse\xe2\x80\x99s percentage share is applied. Second, had it chosen not to pursue the foregoing approach in\ncarrying out this presumed objective, it could have structured a computation providing that (a) the\npercentage share is applied to the gross probatable estate without prior deduction for the statutory\nentitlements and (b) the result of that computation would then be reduced by the statutory\nentitlements. It does not make any sense, however, to do the first and then apply a significant\nvariation of the second, resulting in a deduction of these entitlements at the beginning of the\ncomputation and then again after the maximum elective share has been determined.\nWe believe the estate\xe2\x80\x99s interpretation is suspect for another reason. As can be seen from the\nillustration on page six of this opinion, the widow, having chosen to pursue her right to homestead,\nexempt property, and a year\xe2\x80\x99s support, would receive, under the approach of the estate and the trial\ncourt, an elective share of $134,016.73 plus her three statutory entitlements of $56,504.92 or a total\nof $190,521.65. If she had chosen not to receive her statutory entitlements, her elective share would\nhave been calculated as follows:\nGross Estate\n\n$872,253.32\n\nLess:\nORNL Mortgage\n\n$29,408.23\n\nFuneral and Admin. Exp.\n\n78,795.27\n\n108,203.50\n\nNet Estate\n\n$764,049.82\n\n30% of Net Estate\n\n$229,214.94\n\n126\n\n\x0cThus, as the estate and the trial court interpreted the statute, the widow would receive more, i.e.,\n$229,214.94, if she foregoes her three statutory entitlements than she would receive, i.e., $190,521.65,\nif she claimed them. We refuse to read the statute in a way that attributes to the General Assembly\nan intention to discourage a surviving spouse from pursuing homestead, exempt property, and a\nyear\xe2\x80\x99s support, all entitlements granted by that same legislative body.\nWe have attempted to construe subsections (b) and (c) of the elective-share statute in a way that will\nharmonize these two provisions. See Marsh, 424 S.W.2d at 196. We believe the only way they can be\nharmonized is if subsection (c) is read so as not to include the surviving spouse\xe2\x80\x99s homestead, exempt\nproperty, and year\xe2\x80\x99s support among the items to be deducted from the surviving spouse\xe2\x80\x99s\npercentage share of the net estate.\nIn reaching our decision, we expressly do not rely upon two of the authorities cited by the widow,\ni.e., In re Estate of Morris, 104 S.W.3d 855 (Tenn.Ct.App.2002), and 18 Albert W. Secor, Tennessee\nPractice: Tennessee Probate \xc2\xa7 10.5 (2d ed.2002). We do not believe that either of these authorities is\nimplicated by the facts and issue now before us.\nWe recognize that the \xe2\x80\x9creduction\xe2\x80\x9d concept embodied in subsection (c) was not in the elective-share\nstatute prior to January 1, 1998. We also recognize that the concept of the \xe2\x80\x9cvalue of all assets\xe2\x80\x9d as\nfound in subsection (c) of the elective-share statute is different from, and more expansive than, the\nconcept of the assets passing through probate as addressed in subsection (b). However, we are not\npersuaded that the concept in subsection (c) is broad enough to compel, for a second time, the\ndeduction of the surviving spouse\xe2\x80\x99s three statutory entitlements as a part of the statutory\ncomputation of the amount of the surviving spouse\xe2\x80\x99s elective share. We specifically hold that the\nlanguage of subsection (c) was not intended to include, and does not include, the statutory\nentitlements set forth in Tenn. Code Ann. \xc2\xa7\xc2\xa7 30-2-101 (2001), 30-2-102 (2001), and 30-2-209 (2001).\nWe believe a contrary holding with respect to the statutory entitlements would lead to an absurd\nresult. We decline to go there.\nXII.\nThe judgment of the trial court is reversed. This case is remanded to the court below for further\nproceedings. Costs on appeal are taxed to the Estate of Frank Soard.\n\n127\n\n\x0cChapter Four: The Intestacy System (Marital and Adopted Children)\n4.1\n\nIntroduction\n\nThis chapter examines the inheritance rights of what I refer to as first tier children, marital\nchildren and adopted children. Under the intestacy system, children born during the marriage are\nheirs of their mothers and their fathers. These children receive preference over other classes of\nchildren and they do not have to take additional steps to acquire the right to inherit. One argument\nin favor of this preference for marital children is that they are third party beneficiaries of the marital\ncontract between their parents. In addition, it is reasonable that a man would want his marital\nchildren to inherit his estate because those are the children with whom he usually has a relationship.\nUnder the marital presumption of paternity doctrine, children born during the marriage are the\nchildren of a woman\xe2\x80\x99s husband even if the child is a result of an extra-marital affair. The\npresumption can be rebutted by DNA testing showing that the man and the child are not\ngenetically-related. However, some jurisdictions have adopted the best interests of the child marital\npresumption. That system only permits the paternity of the child to be rebutted if it is in the child\xe2\x80\x99s\nbest interests to do so. It is seldom in the child\xe2\x80\x99s best interests to be declared a nonmarital child.\nAdopted children are treated the same as marital children.\n4.2\n\nMarital Children\n\nThe only legal issue that may come up with regards to marital children pertain to children\nborn after the death of their mother\xe2\x80\x99s husband.\n4.2.1\n\nPosthumously Born Children\n\nIt is well settled, that posthumously born children are treated the same as children that are\nalive at the time that the testator dies. In older cases, courts allowed an unborn child to inherit if the\nchild was born within the gestation period without requiring the child to be born within a specific\ntime. Modern courts have recognized a rebuttable presumption that the generally accepted gestation\nperiod is 280 days. Thus, if the child is born after the 280 days, the child or the child\xe2\x80\x99s parent or\nguardian has the burden of rebutting the presumption. Failure to rebut the presumption results in an\ninability to inherit from the deceased man. However, according to the Uniform Parentage Act, the\ncourt should recognize a rebuttable presumption that a child born to a woman within 300 days after\nthe death of her husband is a child of the deceased husband. Currently, most jurisdictions have\nfollowed the UPC approach and conditioned the ability to inherit upon the child surviving his or her\nfather by a certain period of time. Therefore, a key issue with regards to the inheritance rights of the\nposthumously born child is whether or not the child was born within the statutorily defined time\nperiod.\n\nMorrow v. Scott, 7 Ga. 535 (Ga. 1849)\nMERRIWETHER, J.\nEwing T. Morrow died intestate, leaving a large estate. His next of kin, and distributees at law, were\nhis first cousins, of whom several were in life. Within the period of gestation after his death, Mary\n128\n\n\x0cM. Morrow, another first cousin, was born, and filed a bill by her guardian, claiming a distributive\nshare. On demurrer, the Court dismissed the bill, and that decision is brought up for review.\nWARNER, J.\nThe only question made by the record in this case for our judgment is, whether the first cousin of\nthe intestate, in ventre sa mere, at the time of his death, but born within the usual period of gestation\nthereafter, is entitled to a distributive share of such intestate\'s estate.\nWe are of the opinion, both upon principle and authority, that a child in ventre sa mere, at the time of\nthe death of the intestate\'s ancestor, who is born within the usual period of gestation thereafter, is\nentitled to a distributive share of such deceased intestate\'s estate. Blackstone states the rule to be that,\n\xe2\x80\x9cAn infant in ventre sa mere, or in the mother\'s womb, is supposed in law to be born, for many\npurposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have\na guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards,\nby such limitation, as if it were then actually born; and in this point, the Civil Law agrees with ours.\xe2\x80\x9d 1\nBl. Com. 130. 1 Roper on Legacies, 53.\nPosthumous children, says Chancellor Kent, inherit, in all cases, in like manner as if they were born in\nthe lifetime of the intestate, and had survived him. This is the universal rule in this country. It is\nequally the acknowledged principle in the English Law; and for all the beneficial purposes of heirship, a child in ventre\nsa mere, is considered as absolutely born. 4 Kent\'s Com. 412. In Wallis vs. Hodson, Lord Hardwicke held that,\nboth by the rules of the Common Law, as well as by the Civil Law, a child in ventre sa mere, is in rerum\nnatura, and is as much one, as if born in the father\'s lifetime. 2 Atkyns, 116. In Doe vs. Clark, it was\nheld, that an infant in ventre sa mere is considered as born for all purposes which are for his benefit. 2\nH. Blackstone, 399. In Hall vs. Hancock, the Court ruled, that in general, a child is to be considered as\nin being, from the time of its conception, where it will be for the benefit of such child to be so\nconsidered. 15 Pickering\'s Rep. 255. This rule is in accordance with the principles of justice, and we\nhave no disposition to innovate upon it, or create exceptions to it.\nLet the judgment of the Court below be reversed.\n\nUniform Probate Code \xc2\xa7 2-108 Afterborn Heirs\nAn individual in gestation at a particular time is treated as living at that time if the individual lives\n120 hours or more after birth.\nClass Discussion Tool One\nChristine and Eric were married with two children, Polly and Diane. Diane was\ndevelopmentally disabled. Eric was diagnosed with brain cancer. Christine wanted to attempt to\nhave a son in memory of Eric. Eric stated that he did not want any more children because he had\nonly made financial preparations for two children. Eric\xe2\x80\x99s cancer temporarily went into remission.\nChristine and Eric resumed their sexual relationship. As a result, Christine became pregnant. Before\nChristine could tell Eric about her condition, his cancer reoccurred. Eric died intestate two months\nlater. Should the unborn child be able to inherit from Eric\xe2\x80\x99s estate?\n129\n\n\x0c4.3\n\nAdopted Children\n\nMuch of American inheritance law is based upon English common law. The English placed\na substantial value on blood relations. As a consequence, the common law of England did not give\nlegal recognition to the adoption by one person of the child of another person. Thus, that child did\nnot acquire the status of a child and heir of the person attempting to adopt him or her. In England,\nthe persons having the right to inherit were limited to legitimate children who were heirs by blood.\nHowever, adoption existed as a part of the civil law of Rome and other European countries.\nAdoption law, based upon the laws of France and Spain, was initially introduced into American\njurisprudence by the states of Texas and Louisiana. Eventually, several New England states enacted\nadoption statutes. One of the first states to include adoption as a part of its common law was\nMassachusetts. The requirements of Massachusetts adoption procedures were codified in the Mass.\nStat. of 1851.17 The push to recognize adoptions in America stemmed from the need to protect\nneglected and abused children. Therefore, the concept of the \xe2\x80\x9cbest interests of the child\xe2\x80\x9d was\ndeveloped as a part of American adoption law.18 Consequently, all of the states in the United States\nand the District of Columbia currently have adoption statutes in place.\nIn the majority of jurisdictions, the adopted child is treated as the legal child of the adopting\nparents once the court has entered the final adoption decree. As a result, the adopted child obtains\nthe right to inherit from the adoptive parents and from the adoptive parents\xe2\x80\x99 relatives. Generally, the\ncourt decree that finalizes the adoption ends the legal relationship between the birth parents and the\nadopted child. Therefore, the adopted child does not retain the right to inherit from or through the\nbirth parents.19 However, the adoption by the spouse of a birth parent generally has no effect on the\nright of a child to inherit from or through either birth parent.\nSince adoption law is statutory and highly localized, adoption laws varies from state to state.\nWith regards to this legal issue, the states have taken several different approaches. Some states like\nAlaska20, Idaho21, Illinois22 and Maine23 have enacted statutes that permit the adopted child to inherit\nfrom his or her birth parents as long as that right is reserved in the adoption decree. Texas24and a\nSee Ross v. Ross, 129 Mass. 262-263 (1978).\nMatter of Jarrett, 230 A.D. 2d 513 (N.Y.S. 2d 1997).\n19 See e.g., Tenn. Ann. Code \xc2\xa7 36-1-121.\n20 Alaska Stat. \xc2\xa7\xc2\xa7 25.23.130 (\xe2\x80\x9cA final decree of adoption relieves the birth parents of the adopted persons of all parental\nrights and responsibilities, and, except as provided below, terminates all legal relationships between the adopted person\nand the birth parents and other relatives of the adopted person, so that the adopted person thereafter is a stranger to the\nformer relatives for all purposes including inheritance, unless the decree of adoption specifically provided for\ncontinuation of inheritance rights.\xe2\x80\x9d).\n21 Idaho Code \xc2\xa7 16-1509 (\xe2\x80\x9cUnless the decree of adoption otherwise provides, the natural parents of an adopted person\nare relieved of all parental duties toward the adopted person, including the right of inheritance unless specifically\nprovided by will.\xe2\x80\x9d)\n22 Ill. Cons. Stat. Tit. 755, \xc2\xa7 5/2-4(b), (d) (\xe2\x80\x9c***\xe2\x80\x9dFor purposes of inheritance from or through a natural parent, an adopted\nchild is not a child of a natural parent, nor is the child a descendant of a natural parent or of any lineal or collateral\nkindred of a natural parent, unless ***The contrary intent is demonstrated by the terms of the instrument by clear and\nconvincing evidence.\xe2\x80\x9d).\n23 Maine Ann. Stat. Tit. 18-A, \xc2\xa7\xc2\xa7 9-105; 2-109 (\xe2\x80\x9cAn adopted person retains the right to inherit from the adopted person\xe2\x80\x99s\nbirth parents if the adoption decree so provides, as specified in \xc2\xa7 2-109. If a natural parent wishes an adopted child to\ninherit from the natural parents and their respective kin, the adoption decree must provide for that status.\xe2\x80\x9d).\n24 Texas Prob. Code \xc2\xa7 40; Fam. Code \xc2\xa7 162.507 (\xe2\x80\x9cThe natural parents of an adopted child shall not inherit form or\nthrough said child, but said child shall inherit from and through its natural parents.\xe2\x80\x9d) Texas Prob. Code \xc2\xa7 40 (\xe2\x80\x9cAn\n17\n18\n\n130\n\n\x0cfew other states allow the adopted child to inherit from and through both his or her adoptive and\nbirth parents. In Colorado, if there are no other heirs, the adopted child may file a claim against the\nestate of the birth parent within 90 days of the parent\xe2\x80\x99s death.25 Pennsylvania permits an adopted\nchild to inherit from the estate of a birth relative, other than a birth parent, who has maintained a\nfamily relationship with the adopted child.26\nWith regards to inheritance issues, two questions must be answered\xe2\x80\x94Which adopted\nchildren should have the opportunity to inherit? From whom should the adopted child be permitted\nto inherit?. The litigation surrounding the answers to those questions involved the following issues:\n(1) Whether the legally adopted child has the right to inherit from and through his or her birth\nparents; (2) Whether the legally adopted child has the right to inherit from and through his or her\nadoptive parents; (3) Whether the courts should use its equitable powers to permit a child who has\nnot been legally adopted to inherit from and through the intended adoptive parents; and (4)\nWhether a child who was adopted as an adult should be permitted to inherit from and through his\nadoptive parents.\n4.3.1\n\nLegal Adoption\n\nMcKinney\xe2\x80\x99s D.R.L. \xc2\xa7 117(b) Right to inherit from and through the biological parents\neliminated after adoption\n(b) The rights of an adoptive child to inheritance and succession from and through his birth\nparents shall terminate upon the making of the order of adoption except as hereinafter\nprovided.\nThe language contained in the above-cited statute is representative of the language found in\na majority of state adoption statutes. Once a competent court declares that a child has been legally\nadopted, the legal relationship between that child and his or her birth parent(s) is severed. The basis\nof having the ability to inherit from a parent who dies intestate is dependent upon the existence of a\nparent-child relationship. As a result, once a child is adopted, he or she is not considered to be an\nheir of his or her biological parent(s). As the next case illustrates, the child may lose the opportunity\nto inherit from a parent even if that parent does not consent to the legal adoption.\n\nAldridge v. MIMS, 884 P.2d 817 (N.M. 1994)\nBLACK, J.\nBorn out of wedlock, Steven Aldridge (Child) was adopted in 1978 by his maternal grandparents, but\nconsent to the adoption was not obtained from his natural father. The maternal grandmother\nattested that the adoption petition did not contain any reference to the alleged natural father because\nadopted child may, under the laws of descent and distribution, inherit from and through the adopting parents and their\nrelative, and the adopting parents and their family may inherit from and through such adopted child.\xe2\x80\x9d).\n25 Colo. Rev. Stat. \xc2\xa7\xc2\xa7 15-11-103(6)-(7); 15-11-114.\n26 Pa. Cons. Stat. Tit. 20, \xc2\xa7 2108 (\xe2\x80\x9cAn adoption person shall not be considered as continuing to be the child of his or her\nnatural parents except in distributing the estate of a natural kin, other than the natural parent, who has maintained a\nfamily relationship with the adopted person.\xe2\x80\x9d).\n\n131\n\n\x0che was very violent, and consequently the family was afraid to approach him either for consent to\nadopt or to ask him to provide support for his child. When Child\'s alleged natural father died\nintestate in 1992, Child filed a claim of heirship and a separate suit to establish paternity. The Estate\nmoved to dismiss Child\'s claim of heirship and paternity suit, and the district court granted the\nmotions to dismiss in both actions. Child appeals both dismissals, and we consolidated the cases on\nappeal. We affirm.\nI. Heirship\nIn dismissing the claim of heirship, the district court held, inter alia:\n1. Steven Ray Aldridge is precluded from making this claim by reason of his adoption by Ray D.\nAldridge and Doris Marie Aldridge under the final decree of adoption entered in cause number SA77-00007 of the Seventh Judicial District of New Mexico on March 3, 1978, said adoption having\nbeen sufficient and complete in all respects under the law of New Mexico at such time; and\n2. An adoptive child in New Mexico is precluded from inheriting from the estate of a natural father\neven if paternity of the father is established after the adoption[.]\nWe conclude that both of these district court holdings correctly state the law.\nChild\'s argument is that he should be able to prove Decedent\'s paternity so that he can inherit from\nboth his natural parents as well as his adoptive parents. Child argues that when the New Mexico\nLegislature adopted the Uniform Probate Code (UPC) in 1975 it was \xe2\x80\x9cpresumed to be aware of all\nexisting case law interpreting [NMSA 1978, Section 45-2-109 (Repl.Pamp.1989) ] and have intended\nthe same result.\xe2\x80\x9d Citing Stark v. Watson, 359 P.2d 191 (Okla.1961), Child concludes, \xe2\x80\x9c[a]ll cases at\nthat time held that Section 2-109 of the \xe2\x80\x98UPC did not reveal a legislative intent to destroy the rights\nof an adopted child to inherit from its natural parents.\xe2\x80\x99 \xe2\x80\x9d\nThe flaw in this argument is that under the UPC it is the law at the date of parent\'s death, not that in\neffect at the time of adoption, which controls. See In re Estate of Holt, 95 N.M. 412, 413, 622 P.2d\n1032, 1033 (1981); In re Estate of Mooney, 395 So.2d 608, 609 (Fla.Dist.Ct.App.1981). At the time of\nthe alleged father\'s death in 1992, the New Mexico courts had already established that, under the\nUPC, an adopted child inherits through the adoptive, not the natural, parents.\nThe New Mexico Supreme Court interpreted Section 45-2-109 in In re Estate of Holt. In rejecting the\nattempt of a child, who had been adopted by her stepfather, to inherit from her paternal\ngrandmother, who died intestate, our Supreme Court stated:\nThe clear meaning of Section 45-2-109 is that an adoption severs the legal rights and\nprivileges between the adopted child and the natural parents. From the point of adoption on,\nthe adopted child belongs to the adoptive parents as if he or she had been their natural child,\nwith the same rights of a natural child, all to the exclusion of the natural parents.\nChild next urges us to, in essence, overrule Holt. Not only are we not at liberty to overrule recent\nSupreme Court precedent, State v. Wilson, 867 P.2d 1175, 1177-78 (N.M. 1994), but additionally we\nbelieve the Holt Court followed the accepted interpretation of UPC Section 2-109.\n132\n\n\x0cII. Constitutionality\nChild next argues that if the intestate succession statute can be read to divest children who are\nadopted by their grandparents from the right to inherit from both natural parents, and not so for\nchildren adopted by their stepparents, then the statute is unconstitutional as applied. However, Child\nprovides only policy reasons and no legal precedent to support this contention. Issues raised in\nbriefs that are unsupported by legal authority need not be considered. Moreover, this issue has also\nbeen raised under the UPC and has been resolved adversely to Child\'s position. The Florida Court\nof Appeals rejected a very similar equal protection challenge to the UPC plan of substituting the\nadoptive parents for the natural parents, saying:\nAppellant has furnished us with an abundance of statistical information regarding the\nincrease of illegitimacy and the social reasons why \xc2\xa7 732.108 [Florida\'s equivalent of \xc2\xa7 45-2109] should be declared unconstitutional. This argument can best be made before the\nLegislature which has the obligation to decide the social consequences of legislation.\nHowever, the statistics do nothing to convince us that there has been a denial of equal\nprotection. The section simply provides that an adopted person is not a lineal descendant of\nhis natural parent. Other provisions in the section provide that he is a lineal descendant of\nhis adopting parents, the consequence of which afford him full and equal protection to\ninherit from his adoptive parents.\nAs in the Florida case, Child\'s arguments may be appropriate for a debate on public policy in the\nlegislature, but they are an inadequate foundation for a constitutional challenge to the intestacy\nprovisions of the UPC.\nIII. Adoption\nChild argues that the 1978 adoption is void because the 1979 United States Supreme Court decision\nin Caban v. Mohammed, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), \xe2\x80\x9cdeclared all state statutes which\nrequired an illegitimate child\'s mother, but not his father, to consent to his adoption, to be\nunconstitutional as violative of the equal protection clause.\xe2\x80\x9d This is a misreading of Caban. Caban\nrecognized a natural father\'s interest in the adoption of his children only where he has acknowledged\nhis paternity and developed a relationship with the child. Moreover, Child\'s adoption decree was\nentered in March 1978; Caban was not filed until more than a year later in April 1979. Even if Child\'s\nalleged father had acknowledged and established a relationship with Child, Caban has not been\napplied retroactively.\nThe New Mexico adoption statutes in effect at the time of Child\'s 1978 adoption may be found at\nNMSA 1953, Sections 22-2-20 to -46 (Supp.1975). Section 22-2-33(C) read:\nSubject to the disposition of an appeal, after one [1] year from the date of entry of a\njudgment of adoption, the judgment of adoption cannot be questioned by any person, including\nthe petitioner, in any manner, upon any ground, including fraud, misrepresentation or failure to\ngive any required notice. (Emphasis added.)\nThe statute was emphatic and inclusive in limiting both the persons and grounds on which an\nadoption could be set aside. Thus, it may be reasonably assumed that the legislature chose a policy\nthat would impose permanence on the adoptive relationship. We conclude that Child\'s adoption was\n133\n\n\x0cfinal and its validity cannot now be attacked.\nIV. Paternity\nFinally, Child argues that even as a lawfully adopted child he may proceed with a paternity suit\nagainst his natural father\'s estate. Paternity suits are not recognized as a common-law cause of action\nin New Mexico. See State ex rel. Human Servs. v. Aguirre, 797 P.2d 317, 319 (N.M., Ct.App.1990).\nMoreover, the primary purpose of paternity suits is to insure the putative father meets his obligation\nto help support the child. Id. As previously noted, the legal effect of an order of adoption is to cause\nthe adopted child to be treated as if it were the natural child of the adoptive parents and thus\nterminate the natural parent\'s duty to support such child. See In re Estate of Holt, 622 P.2d at 1034. It\ntherefore follows that if the adoption of a child is approved prior to the commencement of a\npaternity suit, the paternity suit will not lie.\nV. Conclusion\nThe district court properly considered the adoption decree and correctly concluded Child is legally\nprecluded from challenging his adoption at this late date. Since a lawfully adopted child does not\ninherit from its natural parents, the district court\'s order dismissing the claim of heirship is affirmed,\nand since a lawfully adopted child does not have a right to support from his natural parents, the\ndistrict court\'s order dismissing the paternity suit is affirmed.\n\nEllis v. West, 971 So. 2d 20 (Ala. 2007)\nWOODALL, Justice.\nBetty Ellis, as personal representative of the estate of her sister, Annie Laurie Pace, deceased,\nappeals from a judgment for Joshua Adam Falls West and Jacob Wayne Falls West (\xe2\x80\x9cthe children\xe2\x80\x9d),\nby and through their adoptive mother and next friend, Agnes West, on the children\'s petition\nasserting a claim in Pace\'s estate. We reverse and remand with directions.\nThe facts are undisputed. The decedent, Annie Laurie Pace, was the maternal great-grandmother of the\nchildren, being the mother of Robert Pace, deceased, who was the father of Kelly Pace, who married\nRicky Falls in 1990. In April 1993, Kelly Pace Falls died, survived by her husband and the children.\nOn November 16, 1995, the children were adopted by their paternal grandmother, Agnes West, and her\nhusband, Albert West, the children\'s step grandfather.\nAnnie Laurie Pace died intestate on July 25, 2005, and letters of administration were issued to her\nsister, Betty Ellis. Subsequently, the children, by and through Agnes West, filed in the probate court\na \xe2\x80\x9cpetition for determination of heirship,\xe2\x80\x9d alleging that they are the \xe2\x80\x9conly surviving lineal\ndescendants of Annie Laurie Pace.\xe2\x80\x9d The petition sought an \xe2\x80\x9corder determining that [the children]\nare the heirs and next-of-kin of [Annie Pace], and are entitled to inherit the estate of [Annie Pace].\xe2\x80\x9d\nThe proceeding was removed to the Jefferson Circuit Court.\nOn July 5, 2006, Ellis moved for a summary judgment, arguing that the children\'s petition had no\nmerit, based on Ala. Code 1975, \xc2\xa7 43-8-48(1), which provides:\n\n134\n\n\x0c\xe2\x80\x9cIf, for purposes of intestate succession, a relationship of parent and child must be established\nto determine succession by, through, or from a person:\n\xe2\x80\x9c(1) An adopted person is the child of an adopting parent and not of the natural parents except that\nadoption of a child by the spouse of a natural parent has no effect on the right of the child to\ninherit from or through either natural parent....\xe2\x80\x9d\n(Emphasis added.)\nOn August 30, 2006, the trial court entered an order granting the children\'s petition. The order\nstated, in pertinent part:\n\xe2\x80\x9cThe court hereby finds that the undisputed facts show that Kelly Pace Falls, the biological\nmother of [the children], died prior to the adoption of the children; therefore, there was no\ntermination of parental rights nor relinquishment of parental rights by Kelly Pace Falls. The\nminor children were adopted by their paternal grandmother, Agnes West and paternal stepgrandfather, Albert West, following the death of Kelly Pace Falls. The biological father of\nthe children consented to the adoption of the children by his mother and stepfather.\n\xe2\x80\x9cThe court finds further that \xc2\xa7 43-8-48, Code of Alabama, is not to be so strictly construed\nas to disinherit these minor children from the biological mother\'s grandmother. There are no\nreported Alabama cases applying strict construction of this statute such that these children would not inherit\nunder the law of intestate succession under the facts of this case. Their deceased biological mother, the\ngranddaughter of the decedent, Annie Laurie Pace, did not consent to the adoption of her\nchildren, nor were her parental rights terminated. Neither does this court provide for such a\nresult.\xe2\x80\x9d\n(Emphasis added.)\nSubsequently, Ellis appealed. On appeal, Ellis contends that the trial court failed to apply \xc2\xa7 43-8-48\naccording to its plain meaning, and that it erred in failing to do so.\nOur resolution of this dispute is governed by well-established principles of statutory construction\nand separation of powers. It is axiomatic that \xe2\x80\x9c \xe2\x80\x98[w]ords used in a statute must be given their natural,\nplain, ordinary, and commonly understood meaning, and where plain language is used a court is\nbound to interpret that language to mean exactly what it says.\xe2\x80\x99 \xe2\x80\x9d University of South Alabama v. Progressive\nIns. Co., 904 So.2d 1242, 1246 (Ala.2004) (quoting IMED Corp. v. Systems Eng\'g Assocs. Corp., 602\nSo.2d 344, 346 (Ala.1992)) (emphasis added). Moreover, \xe2\x80\x9c \xe2\x80\x98[i]f the language of the statute is\nunambiguous, then there is no room for judicial construction and the clearly expressed intent of the\nlegislature must be given effect.\xe2\x80\x99 \xe2\x80\x9d Id. (emphasis added).\nWe see no ambiguity in \xc2\xa7 43-8-48(1). It clearly states that an adopted child is not the child of its\nnatural parents \xe2\x80\x9cfor purposes of intestate succession.\xe2\x80\x9d The single exception is where the adoptive\nparent is \xe2\x80\x9cspouse of a natural parent.\xe2\x80\x9d It is undisputed that the exception does not apply in this case.\nThe children urge this Court to disregard the clear statutory directive and engage in a labored publicpolicy discussion, with a view to integrating the probate code with the adoption code, and to affirm\nthe judgment on that basis. Children\'s brief, at 10-17. This, we may not do.\n135\n\n\x0c\xe2\x80\x9c\xe2\x80\x98[Section] 43 of the Constitution of Alabama of 1901 mandates the separation of judicial power\nfrom legislative power and condemns the usurpation of the power of one branch of government by\nthe other.\xe2\x80\x99 \xe2\x80\x9d Sears Termite & Pest Control, Inc. v. Robinson, 883 So.2d 153, 157 (Ala.2003) (quoting Ex\nparte Thicklin, 824 So.2d 723, 732 (Ala.2002)). \xe2\x80\x9c \xe2\x80\x98The authority to declare public policy is reserved to the\nLegislature, subject to limits imposed by the Constitution.\xe2\x80\x99 \xe2\x80\x9d Id. (emphasis added). See Rogers v. City of\nMobile, 277 Ala. 261, 281, 169 So.2d 282, 302 (1964); Almon v. Morgan County, 245 Ala. 241, 245, 16\nSo.2d 511, 514 (1944) (\xe2\x80\x9c[T]he Legislature prescribes the State\'s policy; the courts do not.\xe2\x80\x9d).\n\xe2\x80\x9cOur laws of descent and distributions are of statutory creation, and ... the status of parent and child\nhas always influenced legislative action in determining what shall become of the property of those\nwho die intestate....\xe2\x80\x9d Prince v. Prince, 188 Ala. 559, 560, 66 So. 27, 28 (1914) (emphasis added). See also\nWoodliff v. Dunlap, 187 Ala. 255, 259, 65 So. 936, 938 (1914) (\xe2\x80\x9c[T]he subjects of descent and\ndistribution are of statutory control....\xe2\x80\x9d).\nThe legislature has unambiguously declared it to be the policy of this State that, except in one\ninstance immaterial to this case, an adoption severs a child from its natural lineage for purposes of\nintestate succession. The wisdom or folly of that declaration is of no legitimate concern to the\njudiciary. Alabama State Fed\'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944). The\njudiciary\'s duty is merely to enforce the policy as declared in \xc2\xa7 43-8-48(1).\nFor these reasons, the judgment of the trial court is reversed, and this cause is remanded with\ndirections to enter a judgment in favor of Ellis.\nRight to inherit from biological parent retained after adoption\nIn some jurisdictions, the adopted child may retain the right to inherit from his or her\nbiological parents. However, as the next case indicates, that right may be impacted by subsequent\nadoptions.\n\nIn re Estate of Moore, 25 P3d 305 (Oklahoma 2001)\nBUETTNER, J.\nTwo children were adopted by George and Sylvia Moore. The couple divorced. After Sylvia Moore\'s\nmarriage to Ronald Fore, George Moore relinquished his parental rights over the two children,\npaving the way for Fore\'s adoption of them. George Moore later died, leaving his estate to his\nmother, Francis Eugenia Moore. Francis Eugenia Moore subsequently died intestate. The trial court\nawarded her estate to the two children who had been adopted by George Moore and later adopted\nby Fore. We hold that children may inherit through intestate succession through their natural\nparents and their adoptive parents, but that when there are successive adoptions, the last adoption\nprecludes rights of inheritance through intestate succession through previous adoptive parents.\nThe facts in this case were stipulated:\n1. Sylvia R. Fore is the adoptive mother of Wesley Jerome Fore, born January 26, 1965, and\nChristopher Merrell Fore, born September 23, 1965.\n136\n\n\x0c2. Sylvia R. Fore married George Clifford Moore June 16, 1962.\n3. George Clifford Moore is the son of the Decedent, Francis Eugenia Moore and Clifford W.\nMoore, also deceased.\n4. George Clifford Moore and Sylvia R. Fore adopted Christopher Fore and Wesley Fore shortly\nafter the births of said children in adoption proceedings in Orleans Parish, Louisiana.\n5. Sylvia R. Fore and George Clifford Moore were divorced by Decree of Divorce entered on\nJanuary 31, 1967 by the District Court of Carter County, Oklahoma, in Case No. D-4344.\n6. Sylvia R. Fore, subsequent to her divorce from George Clifford Moore, married Ronald Wilson\nFore on or about December 31, 1969.\n7. On May 7, 1970, by Decree of Adoption entered by the District Court of Carter County,\nOklahoma, Ronald Wilson Fore, husband of Sylvia R. Fore, adopted Christopher Fore and Wesley\nFore, in Case No. A-70-18.\n8. The estate of George Clifford Moore was probated in the District Court of Kay County,\nOklahoma, Case No. P-91-141. By Decree of Distribution dated October 13, 1992, the District\nCourt of Kay County, Oklahoma distributed to Francis Eugenia Moore the entire estate of George\nClifford Moore.\n9. Francis Eugenia Moore died intestate on September 8, 1999 a resident of Stillwater, Payne\nCounty, Oklahoma.\nThe issue for the trial court, and for the appellate court, was whether \xe2\x80\x9can adopted child may inherit\nfrom an adoptive parent whose parental rights are relinquished and terminated when said child has\nbeen subsequently adopted by a third party.\xe2\x80\x9d The trial court relied on 10 O.S. Supp.1995 \xc2\xa7 70061.3(A), which states that termination of parental rights does not affect the right of the child to\ninherit from the parent; 10 O.S. Supp.1998 \xc2\xa7 7505-6.5, which abolished differences between natural\nand adopted children; and finally relied on Matter of the Estate of Flowers, 1993 OK 19, 848 P.2d 1146,\nwhich held that pursuant to the plain language of the statute, that termination of parental rights does\nnot affect the right of the child to inherit from the parent.\n\xe2\x80\x9cIssues of law are reviewable by a de novo standard and an appellate court claims for itself plenary\nindependent and non-deferential authority to reexamine a trial court\'s legal rulings.\xe2\x80\x9d Kluver v.\nWeatherford Hospital Authority, 1993 OK 85, 859 P.2d 1081, 1084.\nWe note first that the \xe2\x80\x9cright of an adopted child to inherit is decided by the law in force at the death\nof the testatrix/testator not the date of adoption.\xe2\x80\x9d Flowers, Id. at 1151. In this case, the law in effect\nSeptember 8, 1999, is the law to apply.\nDespite subsequent amendments, 10 O.S. Supp.1995 \xc2\xa7 7006-1.3 has consistently stated that\ntermination of parental rights does not \xe2\x80\x9cin any way affect the right of the child to inherit from the\nparent.\xe2\x80\x9d Matter of the Estate of Flowers, 1993 OK 19, 848 P.2d 1146, 1151. This statement is consistent\nwith the laws of descent and distribution, as well as those concerning adoption.\n137\n\n\x0cWith respect to intestate succession, \xe2\x80\x9c[i]f the decedent leave no surviving husband or wife, but\nleaves issue, the whole estate goes to such issue,....\xe2\x80\x9d A child adopted away from his natural parents\nremains \xe2\x80\x9cissue.\xe2\x80\x9d Citing 1 Am.Jur. 656, \xc2\xa7 57, the court in Stark v. Watson, 1961 OK 17, 359 P.2d 191,\n193 stated:\nConsanguinity is so fundamental in Statutes of Descent and Distribution that it may only be\nignored by construction when courts are forced so to do, either by the express terms of the\nstatute or by inexorable implication. An adopted child is, in a legal sense the child both of its\nnatural and of its adopting parents, and is not, because of the adoption, deprived of its rights\nof inheritance from its natural parents, unless the statute expressly so provides.\nThe Starks court then held that Oklahoma has \xe2\x80\x9cno statutory provisions limiting an adopted child\'s\nstatutory rights to inherit from its natural parent.\xe2\x80\x9d Id. The effect of a final decree of adoption gives\nthe adopted child and adoptive parents rights to inherit through each other in accordance with the\nlaws of descent and distribution, but there is no excluding of the child\'s right to inherit from his\nnatural parent. 10 O.S. Supp.1998 \xc2\xa7 7505-6.5.\nHowever, a subsequent adoption will terminate any inheritance rights a child might have had from a\nprevious adoption. In In re Talley\'s Estate, 1941 OK 1, 109 P.2d 495, a teen-age boy was adopted by\nthe Talleys. When the boy was nineteen, he was adopted by his natural father. In holding that the\nboy could not inherit from the Talleys\' estate (the first adoptive family), the court stated:\nneither in theory, practice nor common sense was petitioner the adopted son of his first\nadoptive parents after his second adoption. Having lost that relationship (a thing which by\nparallel he could not entirely do, at least as to blood, as to his natural parent) there was no\nlonger any predicate upon which to base the conclusion that he would thereafter inherit\nfrom his first adoptive parents the same as if he had been their natural son. Id. at 498.\nWe hold that a child may inherit through his natural parents, even after he is adopted away from his\nnatural family. And although an adopted child and adoptive parents enjoy all the rights of descent\nand distribution as if they were biological parents and child, a subsequent adoption will cut off any\nright the previous adoption might have conferred on either. If the rule in Talley\'s case is to be\nchanged, it will be up to the Oklahoma Supreme Court.\nFor these reasons, we reverse the order of the trial court and remand the matter with directions to\nproceed in a manner consistent with this opinion.\n\nIn re Estate of Wulf, 167 N.W.2d 181 (Neb. 1969)\nNEWTON, J.\nThis is an appeal from an order determining heirship in an intestate estate. The question presented is\nwhether or not an adopted child remains an heir of a natural parent who died subsequent to the\nadoption proceeding. The trial court adjudged that an adopted child may inherit from her natural\nparents notwithstanding the adoption. We affirm the judgment of the trial court.\n\n138\n\n\x0cFred Wulf died intestate April 30, 1967, a resident of Washington County, Nebraska. He was the\nfather of four children. Two of his children, Freddie Wulf and Anna Marie Wulf, were the issue of\nhis first marriage. The remaining children, Eggert Wulf and Earl Wulf, were the issue of his second\nmarriage. As an infant, Anna Marie Wulf, during the last illness of her mother, was placed in the care\nof Mr. and Mrs. Carl Reeh, Mrs. Reeh being a sister of Fred Wulf. She was ultimately adopted by\nMr. and Mrs. Reeh and subsequently married, her present name being Anna Marie Ibsen.\nThroughout his lifetime, her father, Fred Wulf, maintained close contact with his daughter. Her\nadoptive father, Carl Reeh, died testate and she shared in his estate. Subsequently the adoptive\nmother, Mrs. Carl Reeh, died intestate and Anna Marie Ibsen inherited the remaining estate of her\nparents by adoption.\nAdoption was unknown to the common law, is a creature of statute, and rights accruing or sacrificed\nby reason of adoption are to be determined by reference to the statutes of the state having\njurisdiction. There are certain general rules on the subject which are almost uniformly recognized.\n\xe2\x80\x98Consanguinity is fundamental in statutes of descent and distribution, and the right of a child to\ninherit from his natural parents or to share in the intestate personalty of their estates is affected by\nthe legal adoption of the child by another only to the extent that such rights are taken away or\nlimited by the terms of the applicable statutes of adoption and descent and distribution, or by\nnecessary implication therefrom. To state the rule another way, an adopted child is, in a legal sense,\nthe child both of its natural and of its adopting parents, and is not, because of the adoption,\ndeprived of its right of inheritance from its natural parents, unless the statute expressly so provides.\xe2\x80\x99\nThe statutes of the various states pertaining to adoption and the position in which the parties are left\nsubsequent to adoption vary greatly. In some, the right of the adopted child to inherit from its\nnatural parents is specifically preserved. In others, this right is specifically barred. In many others,\nthe statutes do not pass upon the subject by specific language and such statutes remain subject to\ninterpretation. This appears to be true with reference to the Uniform Adoption Code which has\nbeen adopted by the State of Oklahoma. In Stark v. Watson (Okl.), 359 P.2d 191, it was held that the\nUniform Adoption Code did not reveal a legislative intent to destroy the rights of an adopted child\nto inherit from its natural parents. Ordinarily, \xe2\x80\x98A statute which includes as a principal or dominant\nfeature the establishing of the child as an heir of the adopting parent, without making reference to\nthe inheritance from natural parents, is not likely to be construed as depriving the child of that\ninheritance.\xe2\x80\x99\nThe statutes of Nebraska do not specifically refer to this question of inheritance by an adopted child\nfrom its natural parents. Nevertheless, it would appear that the legislative intent is reasonably clear.\nThe Nebraska statutes provide: \xe2\x80\x98After a decree of adoption is entered, the usual relation of parent\nand child and all the rights, duties and other legal consequences of the natural relation of child and\nparent shall thereafter exist between such adopted child and the person or persons adopting such\nchild and his, her or their kindred.\xe2\x80\x99 Section 43-110, R.R.S.1943. \xe2\x80\x98Except as provided in section 43106.01, after a decree of adoption has been entered, the natural parents of the adopted child shall be\nrelieved of all parental duties toward and all responsibilities for such child and have no rights over\nsuch adopted child or to his or her property by descent and distribution.\xe2\x80\x99 Section 43-111,\nR.R.S.1943. \xe2\x80\x98When a child shall have been relinquished by written instrument, as provided by\nsections 43-104 and 43-106, to the Department of Public Welfare or to a licensed child placement\nagency and the agency has, in writing, accepted full responsibility for the child, the person so\nrelinquishing shall be relieved of all parental duties toward and all responsibilities for such child and\nhave no rights over such child. Nothing contained in this section shall impair the right of such child\n139\n\n\x0cto inherit.\xe2\x80\x99 (Emphasis supplied.) Section 43-106.01, R.R.S.1943.\nIt will be noted that although all rights of the natural parent over his or her adopted child, including\nthe right to inherit from such child, are clearly barred by the statute, the statute does not likewise bar\nthe right of the adopted child to inherit from its natural parents. Since the Legislature here dealt in\npart with the inheritable rights of the parties concerned and specifically outlined them in part, the\nfailure to restrict the right of the child to inherit from its natural parents cannot be deemed an\noversight but rather an act evidencing the legislative intent to preserve this right in the child. This\nlegislative intent is even more clearly evidenced by the language contained in section 43-106.01,\nR.R.S.1943, which provides in substance that a child who has been relinquished for adoption to the\nDepartment of Public Welfare or to a licensed child placement agency shall not thereby have its\nright to inherit impaired. To assume that this preservation of the right of the adopted child to inherit\nfrom its natural parents was to be limited only to those cases involving relinquishments of the type\nreferred to in the statute would be to strain the credulity of any reasonable person.\nIt may be of interest to consider the construction placed upon the Utah statute on adoption which is\nto all intents and purposes identical with section 43-111, R.R.S.1943. The court stated in In re Benner\'s\nEstate, 109 Utah 172, 166 P.2d 257: \xe2\x80\x98The statute does not in express terms say that an adopted child\nmay not inherit from its natural parents, nor do we think that it is a necessary implication from the\nfact that the legislature has said that natural parents lose all rights over its child when it is adopted,\nnor from the fact that the child becomes the legal child of its adopting parent and sustains all the\nrights and is subject to all of the duties of that relationship. The more reasonable import of these\nstatutes is that they were enacted for the benefit of the adopted child and to define the relationship\nbetween it and its adopting and natural parents insofar as the custody and control of the child is\nconcerned. We cannot say it is a necessary implication from the language used by the legislature that\nit intended the adopted child to lose certain rights which it otherwise would have. By being born to\nits natural parents its status was established under our succession statutes and it became entitled to\ninherit from them.\xe2\x80\x99 Other somewhat similar statutes have been likewise construed. See, In re\nRoderick\'s Estate, 291 P. 325; In re Ballantine\'s Estate (N.D.), 81 N.W.2d 259.\nThis is a case of first impression in Nebraska. We are convinced that it was the legislative intent to\npermit an adoptive child to inherit from its natural parents and that the judgment of the district\ncourt is correct. The judgment of the district court is affirmed.\nAffirmed.\nThe right to inherit from two lines\n\nUniform Probate Code \xc2\xa7 2-113\nAn individual who is related to the decedent through two lines of relationship is entitled to only a\nsingle share based on the relationship that would entitle the individual to the larger share.\n\n140\n\n\x0cJenkins v. Jenkins, 990 So. 2d 807 (Miss. App. Ct. 2008)\nBARNES, J.\nWillena Jenkins, administratrix of the estate of her daughter, Janice Jenkins, appeals the judgment of\nthe Chancery Court of Pike County, which determined that one of Janice\'s heirs at law, DeMarcus\nDeante Jenkins, would inherit two shares of the estate. The chancellor found DeMarcus entitled to\ninherit as both an adopted sibling of the decedent, Janice, and as the surviving child of Janice\'s\npredeceased sister. We find no error and affirm.\nSummary of Facts and Procedural History\nOn January 20, 2007, Janice died intestate in Pike County without a spouse, surviving children, or\nmore remote lineal descendants. Janice had been disabled since March 1999 due to an alleged\nmedical malpractice incident. Since that time, she had been in a persistent vegetative state. A lawsuit\nover the matter was settled, resulting in a large part of the estate at issue.\nAt the time of her death, Janice was a ward under a pending conservatorship proceeding in the\nChancery Court of Pike County. A decree was entered converting the conservatorship to an\nadministration of Janice\'s estate and appointing Willena as the administratrix. During the course of\nthe administration of the estate, Willena filed a petition for adjudication of heirship to determine\nJanice\'s heirs at law. Proper notice was given to all of Janice\'s possible heirs. On May 29, 2007, a\nhearing was held on the petition. The chancery court adjudicated the following individuals to be\nJanice\'s heirs-at-law: (1) Willena Jenkins, living mother; (2) Edward Jenkins, Jr., living father; (3)\nGlenn Edward Jenkins, living brother; (4) Linda Faye Jenkins Adams, living sister; (5) Lisa Michelle\nJenkins, living sister; (6) John Ellis Jenkins, living brother; (7) Shirley Rosetta Jenkins, living sister by\nadoption; and (8) DeMarcus Deante Jenkins, living minor brother by adoption. However, one of\nJanice\'s sisters, Stephanie Ann Jenkins, had predeceased her. Stephanie left one living descendant,\nher minor son and natural child, DeMarcus. However, subsequent to his mother\'s death, on April\n18, 1997, DeMarcus was lawfully adopted by his grandparents, Willena and Edward. According to\nthe parties\' stipulation of facts, the adoption decree did not preclude or limit the right of DeMarcus\nto inherit from the estate of his mother, Stephanie.\nAlso on May 29, 2007, Willena filed a petition for allowance of certain claims and other relief.\nWithin the petition, Willena requested the chancery court adjudicate the apportionment of the estate\nas it pertains to DeMarcus because of the unusual situation that had arisen. On the one hand, under\nthe applicable statute regarding intestate succession, each of the enumerated heirs would receive a\none-eighth share of Janice\'s estate. Therefore, DeMarcus would be entitled to inherit the share of his\ndeceased mother, Stephanie. On the other hand, as a result of his adoption by Willena and Edward,\nDeMarcus would also be entitled to inherit as Janice\'s adopted brother. Thus, Willena specifically\nrequested the chancellor to determine if DeMarcus would inherit one one-eighth share of the estate\nor if DeMarcus would inherit two one-ninth shares of the estate.\nOn June 21, 2007, a hearing was held on the petition, and a final judgment was entered regarding\nDeMarcus\'s shares. The chancellor found that Janice\'s heirs at law would each receive a one-ninth\nshare of her estate, with the exception of DeMarcus, who would receive two one-ninth shares. The\n141\n\n\x0cchancellor duly noted \xe2\x80\x9cthe apparent inequity that is resulting\xe2\x80\x9d from her judgment but she stated the\nmatter warranted strict statutory construction. Willena subsequently appealed this determination.\nStandard of Review\nWhether DeMarcus should receive one or two shares of Janice\'s estate is a question of law. This\nCourt reviews questions of law de novo. Estate of Yount v. McKnight, 845 So.2d 724, 726\n(Miss.Ct.App.2003) (citing Estate of Jones v. Howell, 687 So.2d 1171, 1174 (Miss.1996)).\nDiscussion\nWhether The Chancery Court Erred In Determining That DeMarcus Was Entitled To Two\nShares of Janice\xe2\x80\x99s Net Estate\nThis case requires that we analyze the statutory framework surrounding the unique factual\ncircumstances, which are undisputed. Both parties agree that the two determinative statutes are\nMississippi Code Annotated section 91-1-3 (Rev.2004), which deals with intestate succession of real\nproperty, and Mississippi Code Annotated section 93-17-13 (Supp.2007), which relates the effect of\nadoption on inheritance. However, the parties disagree on the interpretation and outcome of these\ntwo statutes when read together.\nSection 91-1-3 provides in relevant part that when an individual dies intestate, the following occurs:\nWhen there shall not be a child or children of the intestate nor descendants of such children,\nthen to the brothers and sisters and father and mother of the intestate and the descendants\nof such brothers and sisters in equal parts, the descendants of a sister or brother of the\nintestate to have in equal parts among them their deceased parent\'s share.\nMiss. Code Ann. \xc2\xa7 91-1-3. DeMarcus\'s mother, Stephanie, was the decedent Janice\'s sister. This\nstatute preserves the right of DeMarcus to inherit his deceased mother\'s portion of Janice\'s estate, as\nhis mother\'s sole descendant. Thus, under this statute, DeMarcus would receive an equal share of\nJanice\'s net estate, also divided among Janice\'s other heirs at law.\nThe other applicable statute, section 93-17-13 states in part that:\nThe final decree [of adoption] shall adjudicate, in addition to such other provisions as may\nbe found by the court to be proper for the protection of the interests of the child; and its\neffect, unless otherwise specifically provided, shall be that (a) the child shall inherit from and\nthrough the adopting parents and shall likewise inherit from the other children of the adopting parents to the\nsame extent and under the same conditions as provided for the inheritance between brothers and sisters of the\nfull blood by the laws of descent and distribution of the State of Mississippi....\nMiss. Code Ann. \xc2\xa7 93-17-13 (emphasis added). This section clearly provides that DeMarcus, as the\nadopted son of Janice\'s mother and father (his natural grandparents), would be treated as Janice\'s\nadopted brother for inheritance purposes. Because the adoption at issue occurred between related\nfamily members, an unusual situation arises, as DeMarcus occupies two positions for inheritance\npurposes: as the sole heir to his mother\'s share of Janice\'s estate through the statutory right of\nrepresentation, and as Janice\'s adopted sibling.\n142\n\n\x0cCase law in Mississippi is also clear that, in the absence of a statute or decree to the contrary, an\nadoptive child inherits from both natural and adoptive parents. Sledge v. Floyd, 139 Miss. 398, 407-08,\n104 So. 163, 165 (1925) (adoption statute not \xe2\x80\x9cintended to deprive children of their rights to inherit\nfrom their natural parents and blood relatives\xe2\x80\x9d; adopted child held entitled to portion of natural\ngrandfather\'s estate). In the more recent authority, Alack v. Phelps, 230 So.2d 789, 793 (Miss.1970),\nthe Mississippi Supreme Court has continued to hold that Mississippi\'s adoption statutes do not\nterminate the right of the child to inherit from his natural parents. See also Warren v. Foster, 450 So.2d\n786, 787 (Miss.1984) (holding that the right of an adoptive child to inherit from both natural and\nadoptive parents remains pursuant to section 93-17-13). The Alack court notes this holding is in\naccordance with the clear intent of the Legislature, stating:\nWhile the effect of a final decree of adoption is that the natural parent or parents will not\ninherit by or through the child, and all parental rights are terminated, Mississippi\'s adoption law\ndoes not state in any shape, form or fashion that the right of the child to inherit from its natural parents is\nterminated. We think the intent of the legislature is clear; they intended for the child to\ncontinue to inherit from his or her natural parents.\nAlack, 230 So.2d at 792-93 (emphasis added) (citing Sledge, 139 Miss. at 408, 104 So. at 165; 2 C.J.S.\nAdoption of Children \xc2\xa7 63(c) (1936) (in absence of statute to the contrary, adopted child \xe2\x80\x9cstill inherits\nfrom or through his blood relatives, or his natural parents\xe2\x80\x9d)); see also Robert A. Weems, Wills and\nAdministration of Estates in Mississippi, \xc2\xa7 1:9 (3rd ed.2003) (as statute is silent regarding child\'s\nright to inherit from \xe2\x80\x9cnatural family and their kindred[,] ... the right to inherit that the child had prior\nto the adoption remains intact\xe2\x80\x9d). The public policy behind continuing to allow adoptive children to\ninherit from their natural parents is \xe2\x80\x9cto protect minor children from losing their birthright without\nconsent or knowledge. The tendency of the courts is to construe adoption statutes so as to benefit\nthe child.\xe2\x80\x9d Estate of Yount, 845 So. 2d at 727.\nAdditionally, Alack pronounces that since adoption statutes are in derogation of the common law,\nthey are to be strictly construed. Alack, 230 So.2d at 793.\nWillena bases her argument on rules of statutory construction. She cites the axiom that when two\nstatutes encompass the same subject matter, they must be read together, along with the legislative\nintent. Wilbourn v. Hobson, 608 So.2d 1187, 1191 (Miss.1992). The majority of Willena\'s argument,\nhowever, relies on the doctrine in pari materia. This doctrine of statutory construction states that if a\nstatute is ambiguous, the court must resolve the ambiguity by interpreting the statute consistently\nwith other statutes on the same or similar subject matter. State ex rel. Hood v. Madison County, 873\nSo.2d 85, 90 (Miss.2004). Accordingly, Willena claims that Mississippi\'s intestate succession statute,\nsection 91-1-3, should be construed in pari materia with the adoption statute, section 93-17-13. To\nutilize this doctrine, the legislative intent as a whole must be derived from the statutes at issue, as the\ninconsistencies of one statute may be resolved by looking at another statute on the same subject.\nWilbourn, 608 So.2d at 1191. Willena concludes that legislation on the same subject matter must be\nharmonized to fit into the dominate policy of their subject matter, citing Andrews v. Waste Control,\nInc., 409 So.2d 707, 713 (Miss.1982).\nWillena contends that the legislative intent of section 93-17-13 is to elevate the adopted child to the\nsame level as the natural child, but not to raise the adoptive child higher than the natural child. The\nultimate effect of the chancellor\'s ruling, Willena claims, goes further than the Legislature intended\n143\n\n\x0cand has the effect of penalizing the other heirs at law. Willena argues that the better analysis is to\nhave DeMarcus inherit, under the laws of descent and distribution, from Janice solely as the adopted\nbrother of Janice. Willena explains this will protect the right of DeMarcus as an adoptive child\ntoward his adoptive family. Further, she claims that the rights of DeMarcus as an adopted brother\nhave superseded his rights as a descendant of his deceased mother-Janice\'s natural sister.\nWe are not persuaded by Willena\'s arguments. We agree with the chancellor that strict statutory\nconstruction-giving full effect to both statutes-is necessary in this situation, even though it results in\nDeMarcus\'s receiving a greater share than the other heirs of Janice. It is clear that DeMarcus has the\nright to inherit pursuant to both section 91-1-3 and section 93-17-13. It is the norm that every\nadoptee may inherit under both of these statutes, and in fact, it is statutorily required. This case has\nan unusual outcome only because the adoptive parents and the natural parent are related. We find no\ninstance where Mississippi\'s inheritance statutes force the heir to choose under which statute he will\ninherit, as Willena advocates. In the absence of a legislative enactment which states otherwise,\nDeMarcus may inherit as both an adopted sibling of Janice and as the son of Janice\'s natural sister,\nStephanie.\nIn response to Willena\'s arguments on statutory construction, we find that it is the unusual factual\ncircumstance of the case which leads to the unusual legal result, not inconsistencies between the\nstatutes themselves. The two statutes are not in conflict or ambiguous, as required in order to apply\nthe doctrine of in pari materia. Therefore, \xe2\x80\x9charmonizing\xe2\x80\x9d the statutes to produce a more logical\noutcome is improper. Even if we were to interpret the statutes in pari materia, when we examine the\nlegislative intent of similar statutes, we find the chancellor\'s ruling proper. As Alack states regarding\nMississippi\'s adoption statutes, \xe2\x80\x9cthe legislative intent is clear; they intended for the child to continue\nto inherit from his or her natural parents.\xe2\x80\x9d Alack, 230 So.2d at 793. This clearly expressed legislative\nintent is in direct conflict with Willena\'s proposed solution, which is to ignore DeMarcus\'s birthright\nposition as the heir to his mother\'s share of the estate and allow him to inherit only as the decedent\'s\nadopted brother. The adoption statute clearly does not terminate the right of the adopted child to\ninherit from his or her natural parent or blood relative. Alternatively, ignoring DeMarcus\'s adoptive\nstatus flies in the face of the legislative intent as well, because the adoption statutes were created to\nprotect the child. Even though, in this unique instance, because the adopted parents are related to\nthe natural parent, the \xe2\x80\x9cprotection\xe2\x80\x9d places the \xe2\x80\x9cadopted,\xe2\x80\x9d but also related, child in a higher position\nthan the other related heirs at law, it is well established in Mississippi that adoption statutes must be\nstrictly construed, as they are in derogation of the common law. Alack, 230 So.2d at 793.\nAs for Willena\'s claims that DeMarcus\'s inheriting two shares of the estate is inequitable, we find\nthat any other result would contradict the legislative policy established through the adoption statute\nto protect the inheritance rights of adopted children. In this special circumstance, where the\nadoptive parents are related to the adopted child and to one of the child\'s natural parents, any\nperceived inequity of a dual inheritance could be eliminated by limiting the adopted child\'s right to\ninherit from the adoptive kindred in the final adoption decree. See Miss. Code Ann. \xc2\xa7 93-17-13\n(providing that the final decree of adoption shall adjudicate that the child shall inherit from and\nthrough the adopting kindred \xe2\x80\x9cunless otherwise specifically provided\xe2\x80\x9d).\nFinally, we find it unnecessary to distinguish the case law from other jurisdictions that Willena cites\nthat have allowed or disallowed dual inheritances in a variety of situations. The determinative law of\nthis case is statutory and specific to Mississippi.\n144\n\n\x0cConclusion\nBased on the foregoing reasons, we find the chancellor did not err in ruling that DeMarcus is\nentitled to two one-ninth shares of Janice\'s estate. Accordingly, we affirm the judgment of the\nChancery Court of Pike County.\nThe Judgment of the Chancery Court of Pike County is Affirmed.\nNotes and Questions\n1. In the majority jurisdictions, after a child is adopted, the court severs the relationship between that\nchild and the child\xe2\x80\x99s birth parents. Since a parent-child relationship no longer exists, the child does\nnot have the right to inherit from the birth parents. See Matter of Estate of Jank, 521 N.W.2d 162 (Wis.\nApp. 1994).\n2. Eventually, in stranger adoption cases, the identity of the birth parents was withheld from the\nadopted child. The purpose of that was to protect the privacy of the adopted parents and the birth\nparents. That also enables the child to be part of the new family unit. See Elizabeth J. Samuels, The\nIdea of Adoption: An Inquiry Into the History of Adult Adoptee Access to Birth Records, 53 Rutgers L. Rev.\n367 (Winter 2001).\n3. From a public policy perspective, what are the reasons to prevent the adopted child from\ninheriting from the biological parents? A child\xe2\x80\x99s biological grandparents are not a part of the\nadoption process. Why does it make sense to prevent the child from inheriting from his or her\nbiological grandparents?\n4. What would be the outcome of the Jenkins case in a UPC jurisdiction? Is the approach set forth in\nUPC \xc2\xa7 2-113 better than the one utilized by the court in the Jenkins case?\n4.3.2\n\nEquitable Adoption\n\nRight to inherit from the intended adoptive parents\nIt is clear that a child who is legally adopted has a right to inherit from his or her adopted\nparents. In order for the adoption to be legal, the parties must comply with the mandates of the\nadoption statute. Nonetheless, courts have exercised their equitable powers to recognize informal\narrangements that have the attributes of adoptions. These situations are referred to as virtual or\nequitable adoptions. An equitably adopted child acquires the right to inherit from the person who\ninformally adopts him or her.\nIn order to establish the existence of an equitable adoption, the child must prove the\nfollowing elements: (1) an agreement to adopt between the birth parents and alleged adoptive\nparents; (2) performance by the birth parents of the child in giving custody; (3) performance by the\nchild by living in the home of the alleged adoptive parents; (4) partial performance by the alleged\nadoptive parents in taking the child into their home and treating the child as their own child; and (5)\nintestacy of the alleged adoptive parents. Once a competent court decides that a child has been\nequitably adopted, that child has the right to inherit from the intended adoptive parents.\n145\n\n\x0cO\xe2\x80\x99Neal vs. Wilkes, 439 S.E.2d 490 (Ga. 1994)\nFLETCHER, J.\nIn this virtual adoption action, a jury found that appellant Hattie O\'Neal had been virtually adopted\nby the decedent, Roswell Cook. On post-trial motions, the court granted a judgment\nnotwithstanding the verdict to appellee Firmon Wilkes, as administrator of Cook\'s estate, on the\nground that the paternal aunt who allegedly entered into the adoption contract with Cook had no\nlegal authority to do so. We have reviewed the record and conclude that the court correctly\ndetermined that there was no valid contract to adopt.\nO\'Neal was born out of wedlock in 1949 and raised by her mother, Bessie Broughton, until her\nmother\'s death in 1957. At no time did O\'Neal\'s biological father recognize O\'Neal as his daughter,\ntake any action to legitimize her, or provide support to her or her mother. O\'Neal testified that she\nfirst met her biological father in 1970.\nFor four years after her mother\'s death, O\'Neal lived in New York City with her maternal aunt,\nEthel Campbell. In 1961, Ms. Campbell brought O\'Neal to Savannah, Georgia, and surrendered\nphysical custody of O\'Neal to a woman identified only as Louise who was known to want a\ndaughter. Shortly thereafter, Louise determined she could not care for O\'Neal and took her to the\nSavannah home of Estelle Page, the sister of O\'Neal\'s biological father. After a short time with Page,\nRoswell Cook and his wife came to Savannah from their Riceboro, Georgia home to pick up\nO\'Neal. Page testified that she had heard that the Cooks wanted a daughter and after telling them\nabout O\'Neal, they came for her.\nAlthough O\'Neal was never statutorily adopted by Cook, he raised her and provided for her\neducation and she resided with him until her marriage in 1975. While she never took the last name\nof Cook, he referred to her as his daughter and, later, identified her children as his grandchildren.\nIn November 1991, Cook died intestate. The appellee, Firmon Wilkes, was appointed as\nadministrator of Cook\'s estate and refused to recognize O\'Neal\'s asserted interest in the estate. In\nDecember 1991, O\'Neal filed a petition in equity asking the court to declare a virtual adoption,\nthereby entitling her to the estate property she would have inherited if she were Cook\'s statutorily\nadopted child.\n1. The first essential of a contract for adoption is that it be made between persons competent to\ncontract for the disposition of the child. Winder v. Winder, 218 Ga. 409, 128 S.E.2d 56 (1962); Rucker\nv. Moore, 186 Ga. 747, 748, 199 S.E. 106 (1938). A successful plaintiff must also prove:\nSome showing of an agreement between the natural and adoptive parents, performance by\nthe natural parents of the child in giving up custody, performance by the child by living in\nthe home of the adoptive parents, partial performance by the foster parents in taking the\nchild into the home and treating [it] as their child, and ... the intestacy of the foster parent.\nWilliams v. Murray, 239 Ga. 276, 236 S.E.2d 624 (1977), quoting Habecker v. Young, 474 F.2d 1229,\n1230 (5th Cir.1973). The only issue on this appeal is whether the court correctly determined that\n146\n\n\x0cPage was without authority to contract for O\'Neal\'s adoption.\n2. O\'Neal argues that Page, a paternal aunt with physical custody of her, had authority to contract\nfor her adoption and, even if she was without such authority, any person with the legal right to\ncontract for the adoption, be they O\'Neal\'s biological father or maternal aunts or uncles, ratified the\nadoption contract by failing to object.\nAs a preliminary matter, we agree with O\'Neal that although her biological father was living at the\ntime the adoption contract was allegedly entered into, his consent to the contract was not necessary\nas he never recognized or legitimized her or provided for her support in any manner. See Williams,\n239 Ga. 276, 236 S.E.2d 624 (mother alone may contract for adoption where the father has lost\nparental control or abandoned the child); OCGA \xc2\xa7 19-7-25, Code 1933, \xc2\xa7 74-203 (only mother of\nchild born out of wedlock may exercise parental power over the child unless legitimized by the\nfather); see also OCGA \xc2\xa7 19-8-10 (parent not entitled to notice of petition of adoption where parent\nhas abandoned the child). What is less clear are the rights and obligations acquired by Page by virtue\nof her physical custody of O\'Neal after her mother\'s death.\n3. The Georgia Code defines a \xe2\x80\x9clegal custodian\xe2\x80\x9d as a person to whom legal custody has been given\nby court order and who has the right to physical custody of the child and to determine the nature of\nthe care and treatment of the child and the duty to provide for the care, protection, training, and\neducation and the physical, mental, and moral welfare of the child. OCGA \xc2\xa7 15-11-43, Code 1933, \xc2\xa7\n24A-2901. A legal custodian does not have the right to consent to the adoption of a child, as this\nright is specifically retained by one with greater rights over the child, a child\'s parent or guardian.\nOCGA \xc2\xa7 15-11-43, Code 1933, \xc2\xa7 24A-2901 (rights of a legal custodian are subject to the remaining\nrights and duties of the child\'s parents or guardian); Skipper v. Smith, 239 Ga. 854, 238 S.E.2d 917\n(1977) (right to consent to adoption is a residual right retained by a parent notwithstanding the\ntransfer of legal custody of the child to another person); Jackson v. Anglin, 193 Ga. 737, 738, 19\nS.E.2d 914 (1942)(parent retains exclusive authority to consent to adoption although child is placed\nin temporary custody of another); Carey v. Phillips, 137 Ga. App. 619, 624, 224 S.E.2d 870 (1976)\n(parent\'s consent is required for adoption of child although child is in physical custody of another).\nO\'Neal concedes that, after her mother\'s death, no guardianship petition was filed by her relatives.\nNor is there any evidence that any person petitioned to be appointed as her legal custodian.\nAccordingly, the obligation to care and provide for O\'Neal, undertaken first by Campbell, and later\nby Page, was not a legal obligation but a familial obligation resulting in a custodial relationship\nproperly characterized as something less than that of a legal custodian. Such a relationship carried\nwith it no authority to contract for O\'Neal\'s adoption. See Skipper, 239 Ga. at 856, 238 S.E.2d 917.\nWhile we sympathize with O\'Neal\'s plight, we conclude that Page had no authority to enter into the\nadoption contract with Cook and the contract, therefore, was invalid.\n4. Because O\'Neal\'s relatives did not have the legal authority to enter into a contract for her\nadoption, their alleged ratification of the adoption contract was of no legal effect and the court did\nnot err in granting a judgment notwithstanding the verdict in favor of the appellee. See Foster v.\nCheek, 212 Ga. 821, 96 S.E.2d 545 (1957) (adoption contract made between persons not competent\nto contract for child\'s adoption specifically enforceable where the parent with parental power over\nthe child acquiesced in and ratified the adoption contract).\nJudgment affirmed.\n147\n\n\x0cSEARS-COLLINS, J., dissenting.\nI disagree with the majority\'s holding that O\'Neal\'s claim for equitable adoption is defeated by the\nfact that her paternal aunt was not a person designated by law as one having the authority to consent\nto O\xe2\x80\x99Neal\xe2\x80\x99s adoption.\n1. In Crawford v. Wilson, 139 Ga. 654, 658, 78 S.E. 30 (1913), the doctrine of equitable or virtual\nadoption was recognized for the first time in Georgia. Relying on the equitable principle that \xe2\x80\x9cequity\nconsiders that done which ought to have been done,\xe2\x80\x9d id. at 659, 78 S.E. 30; see OCGA \xc2\xa7 23-1-8, we\nheld that \xe2\x80\x9can agreement to adopt a child, so as to constitute the child an heir at law on the death of\nthe person adopting, performed on the part of the child, is enforceable upon the death of the person\nadopting the child as to property which is undisposed of by will,\xe2\x80\x9d * id. We held that although the\ndeath of the adopting parents precluded a literal enforcement of the contract, equity would \xe2\x80\x9cenforce\nthe contract by decreeing that the child is entitled to the fruits of a legal adoption.\xe2\x80\x9d Id. In Crawford,\nwe noted that the full performance of the agreement by the child was sufficient to overcome an\nobjection that the agreement was unenforceable because it violated the statute of frauds. Id. 139 Ga.\nat 658, 78 S.E. 30. We further held that\n[w]here one takes an infant into his home upon a promise to adopt such as his own child,\nand the child performs all the duties growing out of the substituted relationship of parent\nand child, rendering years of service, companionship, and obedience to the foster parent,\nupon the faith that such foster parent stands in loco parentis, and that upon his death the\nchild will sustain the legal relationship to his estate of a natural child, there is equitable\nreason that the child may appeal to a court of equity to consummate, so far as it may be\npossible, the foster parent\'s omission of duty in the matter of formal adoption. [Id. at 660, 78\nS.E. 30.]\nAlthough the majority correctly states the current rule in Georgia that a contract to adopt may not\nbe specifically enforced unless the contract was entered by a person with the legal authority to\nconsent to the adoption of the child, Crawford did not expressly establish such a requirement, and I\nthink the cases cited by the majority that have established this requirement are in error.\nInstead, I would hold that where a child has fully performed the alleged contract over the course of\nmany years or a lifetime and can sufficiently establish the existence of the contract to adopt, equity\nshould enforce the contract over the objection of the adopting parents\' heirs that the contract is\nunenforceable because the person who consented to the adoption did not have the legal authority to\ndo so. Several reasons support this conclusion.\nFirst, in such cases, the adopting parents and probably their heirs know of the defect in the contract\nand yet voice no objection to the contract while the child fully performs the contract and the\nadopting parents reap the benefits thereof. Under these circumstances, to hold that the contract is\nunenforceable after the child has performed is to permit a virtual fraud upon the child and should\nnot be countenanced in equity. Equity does not permit such action with regard to contracts that are\ninitially unenforceable because they violate the statute of frauds, but instead recognizes that the full\nperformance of the contract negates its initial unenforceability and renders it enforceable in equity.\nHarp v. Bacon, 222 Ga. 478, 482-83 (1), 150 S.E.2d 655 (1966).\n148\n\n\x0cMoreover, the purpose of requiring consent by a person with the legal authority to consent to an\nadoption, where such a person exists, is to protect that person, the child, and the adopting parents.\nHowever, as equitable adoption cases do not arise until the death of the adopting parents, the\ninterests of the person with the consent to adopt and of the adopting parents are not in jeopardy.\nOn the other hand, the interests of the child are unfairly and inequitably harmed by insisting upon\nthe requirement that a person with the consent to adopt had to have been a party to the contract.\nThat this legal requirement is held against the child is particularly inequitable because the child, the\ncourse of whose life is forever changed by such contracts, was unable to act to insure the validity of\nthe contract when the contract was made.\nFurthermore, where there is no person with the legal authority to consent to the adoption, such as in\nthe present case, the only reason to insist that a person be appointed the child\'s legal guardian before\nagreeing to the contract to adopt would be for the protection of the child. Yet, by insisting upon this\nrequirement after the adopting parents\' deaths, this Court is harming the very person that the\nrequirement would protect.\nFor all the foregoing reasons, equity ought to intervene on the child\'s behalf in these types of cases,\nand require the performance of the contract if it is sufficiently proven. See OCGA \xc2\xa7 23-1-8. In this\ncase, I would thus not rule against O\'Neal\'s claim for specific performance solely on the ground that\nher paternal aunt did not have the authority to consent to the adoption.\n2. Moreover, basing the doctrine of equitable adoption in contract theory has come under heavy\ncriticism, for numerous reasons. For instance, as we acknowledged in Wilson, supra, 139 Ga. at 659,\n78 S.E. 30, the contract to adopt is not being specifically enforced as the adopting parents are dead;\nfor equitable reasons we are merely placing the child in a position that he or she would have been in\nif he or she had been adopted. Moreover, it is problematic whether these contracts are capable of\nbeing enforced in all respects during the child\'s infancy. Furthermore, because part of the\nconsideration for these contracts is the child\'s performance thereunder, the child is not merely a\nthird-party beneficiary of a contract between the adults involved but is a party thereto. Yet, a child is\nusually too young to know of or understand the contract, and it is thus difficult to find a meeting of\nthe minds between the child and the adopting parents and the child\'s acceptance of the contract. I\nagree with these criticisms and would abandon the contract basis for equitable adoption in favor of\nthe more flexible and equitable theory advanced by the foregoing authorities. That theory focuses\nnot on the fiction of whether there has been a contract to adopt but on the relationship between the\nadopting parents and the child and in particular whether the adopting parents have led the child to\nbelieve that he or she is a legally adopted member of their family.\n3. Because the majority fails to honor the maxim that \xe2\x80\x9c[e]quity considers that done which ought to\nbe done,\xe2\x80\x9d\xc2\xa7 23-1-8, and follows a rule that fails to protect a person with superior equities, I dissent.\n\nWelch vs. Wilson, 516 S.E.2d 35 (W. Va. 1999)\nPer Curiam:\nThis is an appeal by Glenell Welch (hereinafter \xe2\x80\x9cAppellant\xe2\x80\x9d) from a December 31, 1997, order of\nthe Circuit Court of Wood County, ruling that John Maxwell Wilson, II, (hereinafter \xe2\x80\x9cAppellee\xe2\x80\x9d)\nwas the sole heir of John Maxwell Wilson (hereinafter \xe2\x80\x9cdecedent\xe2\x80\x9d). The Appellant contends that the\n149\n\n\x0clower court erred in ruling that she was not equitably adopted by the decedent and in improperly\nrelying upon certain probate records of Mrs. Margaret Wilson, the decedent\'s wife and the\nAppellant\'s grandmother. We reverse the decision of the lower court and remand for entry of an\norder declaring that the Appellant had been equitably adopted by the decedent.\nI. Facts\nThe Appellant was born on August 31, 1971, to Glen and Kathy Welch. Within six months of her\nbirth, physical custody of the Appellant was voluntarily transferred to the Appellant\'s maternal\ngrandmother, Mrs. Margaret Wilson, and her husband, decedent John Maxwell Wilson. Mr. Wilson\nwas the step-grandfather of the Appellant, and Mr. Wilson had one natural child from a previous\nmarriage, Appellee John Maxwell Wilson, II.\nMr. and Mrs. Wilson provided all financial support for the Appellant, and she maintained little\ncontact with her natural parents. Her parents eventually divorced, her father remarried, and her\nmother moved out of state without further visitation or contact. While the Wilsons did not seek\nformal adoption, school records indicated that John and Margaret Wilson were the Appellant\'s\nparents. The evidence indicated that the Wilsons functioned as the parental authorities for the\nAppellant for a period of fifteen years, from the time the Appellant was six months of age until the\ndeath of Mrs. Wilson in 1986. Mrs. Sandra Welch, Glen Welch\'s third wife, testified that upon Glen\nWelch\'s instruction, she visited the Wilson home to offer to take Glenell from Mr. Wilson\'s care\nafter the death of Mrs. Wilson. Mr. Wilson allegedly informed Mrs. Welch that he wished to retain\ncustody of Glenell; consequently, the Appellant continued to reside with Mr. Wilson after Mrs.\nWilson\'s death.\nIn 1988, the Appellant gave birth to a child out of wedlock. Although she lived briefly with her\nboyfriend and in her own trailer with the child, she continued to reside primarily with Mr. Wilson\nuntil she was nineteen years of age, in 1990. When Mr. Wilson was diagnosed with cancer in 1993,\nGlenell and other family members cared for him in his home. On June 14, 1996, Mr. Wilson died\nintestate.\nPursuant to West Virginia Code \xc2\xa7 42-1-9 (1998), entitled \xe2\x80\x9cEstablishment and Recordation of\nDescent,\xe2\x80\x9d the Appellant filed a Petition for Determination of Heirship in the lower court, alleging\nthat she had been equitably adopted by the decedent. Subsequent to a bench trial, the lower court\ndenied the petition and ruled that the Appellant had failed to establish sufficient facts to prove that\nshe had been equitably adopted by the decedent. The Appellant appeals that ruling to this Court.\nII. Standard of Review\nWe expressed the following standard of review in syllabus point four of Burgess v. Porterfield, 469\nS.E.2d 114 (Va., 1996): \xe2\x80\x9cThis Court reviews the circuit court\'s final order and ultimate disposition\nunder an abuse of discretion standard. We review challenges to findings of fact under a clearly\nerroneous standard; conclusions of law are reviewed de novo.\xe2\x80\x9d\nIII. Discussion\nThe Appellant asserts that the lower court erred in failing to find that she had been equitably\nadopted by the decedent, and further asserts that the lower court improperly relied upon certain\n150\n\n\x0cprobate records of Mrs. Margaret Wilson. Our seminal case on the issue of equitable adoption is\nWheeling Dollar Savings & Trust Co. v. Singer, 250 S.E.2d 369 (W. Va., 1978). Syllabus point two of\nSinger explained as follows:\nThe doctrine of equitable adoption is hereby incorporated into the law of West Virginia, but\na litigant seeking to avail himself of the doctrine in a dispute among private parties\nconcerning trusts or the descent of property at death must prove by clear, cogent, and\nconvincing evidence that he has stood from an age of tender years in a position exactly\nequivalent to that of a formally adopted or natural child; provided, however, that the same\nstrict standard of proof does not apply to the determination of dependency under any State\nremedial statute conferring State government benefits which must be liberally construed to\neffect its purpose.\n250 S.E.2d at 370 (footnote added).\nIn addressing the competing concerns of an equitable adoption allegation, we reasoned in Singer that\n\xe2\x80\x9c[w]hile formal adoption is the only safe route, in many instances a child will be raised by persons\nnot his parents from an age of tender years, treated as a natural child, and represented to others as a\nnatural or adopted child.\xe2\x80\x9d 250 S.E.2d at 373.\nOur family centered society presumes that bonds of love and loyalty will prevail in the distribution\nof family wealth along family lines, and only by affirmative action, i.e., writing a will, may this\npresumption be overcome. An equitably adopted child in practical terms is as much a family\nmember as a formally adopted child and should not be the subject of discrimination. He will be as\nloyal to his adoptive parents, take as faithful care of them in their old age, and provide them with as\nmuch financial and emotional support in their vicissitudes, as any natural or formally adopted child.\nId.\nIn discussing the proof necessary to establish equitable adoption, we noted as follows in Singer:\nCircumstances which tend to show the existence of an equitable adoption include: the\nbenefits of love and affection accruing to the adopting party, Foster v. Cheek, 96 S.E.2d 545\n(Ga. 1957); the performances of services by the child, Lynn v. Hockaday, 61 S.W. 885 (Mo.\n1901); the surrender of ties by the natural parent, Chehak v. Battles, 110 N.W. 330 (Iowa\n1907); the society, companionship and filial obedience of the child, Oles v. Wilson, 141 P. 489\n(Colo.1914); an invalid or ineffectual adoption proceeding, Benefield v. Faulkner, 29 So.2d 1\n(Ala. 1947); reliance by the adopted person upon the existence of his adoptive status, Adler v.\nMoran, 549 S.W.2d 760 (Tex.Civ.App.1977); the representation to all the world that the child\nis a natural or adopted child, In re Lamfrom\'s Estate, 368 P.2d 318 (Ariz. 1962); and the\nrearing of the child from an age of tender years by the adopting parents. Lamfrom\'s Estate,\nsupra. Of course, evidence can be presented which tends to negate an equitable adoption\nsuch as failure of the child to perform the duties of an adopted child, Fisher v. Davidson, 195\nS.W. 1024 (Mo. 1917), or misconduct of the child or abandonment of the adoptive parents,\nWinne v. Winne, 59 N.E. 832 (N.Y.1901); however, mere mischievous behavior usually\nassociated with being a child is not sufficient to disprove an equitable adoption. Tuttle v.\nWinchell, 178 N.W. 755 (Neb. 1920).\n151\n\n\x0cId. at 508-09, 250 S.E.2d at 373-74. See also Kisamore v. Coakley, 437 S.E.2d 585 (W. Va.1993).\nIn the case sub judice, the facts are virtually undisputed. Our review of the lower court\'s conclusion\nof law is de novo. We find that the Appellant has proven by clear, cogent, and convincing evidence,\nthat she enjoyed a status within the decedent\'s home and family identical to that of a formally\nadopted child. Reviewing all facts available, we find that the decedent treated the Appellant with the\ndegree of care, nurturing, and shelter enjoyed by a natural child. Ties were severed with her natural\nparents, and the decedent specifically declined the opportunity to release himself of the\nresponsibility for the care of the Appellant subsequent to Mrs. Wilson\'s death. The evidence of the\ndecedent\'s devotion to the Appellant and her reciprocation of such devotion is uncontradicted, and\nthe record is replete with examples of the loving relationship between the two.\nConsequently, we reverse the decision of the lower court and remand for entry of an order declaring\nthat the Appellant had been equitably adopted by the decedent.\nNotes and Questions\n1. Informal arrangements are common in many communities, especially in communities of color.\nWhen something happens to a parent, the grandparent or other close relatives usually step forward\nand care for the minor children. These people may not have the time or money to execute a legal\nadoption. In some cases, even persons with the resources do not think that an adoption is necessary.\nShould the child be penalized because the adults failed to take the steps necessary to legally adopt\nhim or her? Michael J. Higdon, When Informal Adoption Meets Intestate Succession: The Cultural Myopia of\nthe Equitable Adoption Doctrine, 43 Wake Forest L. Rev. 223, 230-250 (Spring 2008).\n2. From a public policy perspective, what are the pros and cons of recognizing equitable adoptions?\nJan Elle Rein, Relatives By Blood, Adoption, and Association: Who Should Get What and Why?, 37 Vand. L.\nRev. 711 (1984).\n3. The main issue addressed by the O\xe2\x80\x99Neal court was whether the person who gave O\xe2\x80\x99Neal to the\nCooks had the legal authority to consent to her adoption. The purpose of the equitable adoption\ndoctrine is to enable the court to deem done what the parties intended to be done. This is usually\nthe case when the courts exercise their equitable powers. In the O\xe2\x80\x99Neal case, since no one with the\nauthority attempted to have the child legally adopted, the child could not be considered equitably\nadopted. The court\xe2\x80\x99s job is to effectuate the parties\xe2\x80\x99 intent not to create it.\n4. What factual differences justify the different outcomes of the O\xe2\x80\x99Neal and Welch cases?\n5. Is the O\xe2\x80\x99Neal case correctly decided if the purpose of the intestacy system is to carry out the\npresumed intent of the decedent?\n6. Would O\xe2\x80\x99Neal\xe2\x80\x99s case have been stronger if she had introduced evidence that she took care of the\nCooks when they were elderly?\n\n152\n\n\x0cRight to inherit from biological parents\n\nGardner v. Hancock, 924 S.W.2d 857 (Mo. 1996)\nMONTGOMERY, Presiding Judge.\nRuth Elizabeth Gardner (Respondent), James Gardner\'s niece, brought a quiet title action with an\nalternative count for partition against Josephine Gardner Broyles (Appellant). After a bench trial, the\ntrial court determined that Appellant is the equitably adopted daughter of Stanford R. Chapman and\nJosie E. Chapman and is \xe2\x80\x9cjudicially estopped\xe2\x80\x9d from asserting she is an heir of James Gardner, her\nnatural father. The trial court adjudged that Appellant had no right, title or interest in the real estate\nin question, and consequently the Hancocks took nothing by Appellant\'s deed to them. See supra\nnote 1. We reverse and remand.\nThe dispositive question on appeal is whether an equitably adopted child may inherit from the\nchild\'s natural parent under \xc2\xa7 474.010 Appellant correctly claims the trial court erroneously applied\nthe law in holding that the theory of equitable adoption can be used by a third party (Respondent) to\nbar a child (Appellant) from inheritance rights in her natural parents\' property.\nOur review of this action for equitable relief is governed by Rule 73.01(c) and Murphy v. Carron, 536\nS.W.2d 30 (Mo. banc 1976). \xe2\x80\x9c[T]he decree or judgment of the trial court will be sustained by the\nappellate court unless there is no substantial evidence to support it, unless it is against the weight of\nthe evidence, unless it erroneously declares the law, or unless it erroneously applies the law.\xe2\x80\x9d Id. at\n32.\nIn this case no one disputes that Appellant is the natural child of James Gardner, deceased. The\ncontroversy only centers on Appellant\'s right to inherit from her father under \xc2\xa7 474.010 after she\nwas equitably adopted by the Chapmans. Because Appellant apparently \xe2\x80\x9cinherited\xe2\x80\x9d an interest in\nOklahoma real estate from Mrs. Chapman, Respondent claims Appellant \xe2\x80\x9cnow wants a second bite\nof the apple-to receive from the estate of the Chapmans, her adoptive parents, and again from the\nestate of James Gardner, her natural parent.\xe2\x80\x9d However, Respondent cites no authority supporting\nher \xe2\x80\x9csecond bite\xe2\x80\x9d theory.\nWe need not recite the facts the trial court found to support its determination that the Chapmans\nequitably adopted Appellant. We can resolve the issue on this appeal by assuming, without deciding,\nthe trial court\'s determination was correct.\nThis is a case of first impression in Missouri. The parties cite no cases, and we have located none in\nwhich a person in Respondent\'s position has been allowed to establish an equitable adoption to deny\nan equitable adoptee\'s inheritance rights from a natural parent. To reach the correct result, we must\nexamine the theory behind equitable adoption.\nGenerally speaking, the theory of recovery in an equitable adoption case is founded upon either\nequitable principles or upon the theory of estoppel. In the former it is a judicial remedy for an\nunperformed contract of legal adoption or, in the alternative, the ordering of specific performance\nof an implied contract to adopt. The estoppel theory operates to preclude a party from asserting the\ninvalidity of a status of an \xe2\x80\x9cadopted\xe2\x80\x9d child for inheritance purposes. It has been said that a so-called\n153\n\n\x0c\xe2\x80\x9cequitable adoption\xe2\x80\x9d is no more than a legal fiction permitting specific performance of a contract to\nadopt. Furthermore, the descriptive phrase \xe2\x80\x9cadoption by estoppel\xe2\x80\x9d has been described as a\nshorthand method of saying that because of the promises, acts and conduct of an intestate deceased,\nthose claiming under and through him are estopped to assert that a child was not legally adopted or\ndid not occupy the status of an adopted child.\nAn adoption by estoppel is an equitable remedy to protect the interests of a person who was\nsupposed to have been adopted as a child but whose adoptive parents failed to undertake the legal\nsteps necessary to formally accomplish the adoption; the doctrine is applied in an intestate estate to\ngive effect to the intent of the decedent to adopt and provide for the child.\nThe doctrine is predicated on principles of contract law and equitable enforcement of the agreement\nto adopt for the purpose of securing the benefits of adoption that would otherwise flow from the\nadoptive parent under the laws of intestacy had the agreement to adopt been carried out; as such it is\nessentially a matter of equitable relief. Being only an equitable remedy to enforce a contract right, it\nis not intended or applied to create the legal relationship of parent and child, with all the legal\nconsequences of such relationship, nor is it meant to create a legal adoption. (Footnotes omitted.)\nOur courts embrace the general principles set forth above. (citations omitted).\nA case factually similar to the instant matter is Kupec v. Cooper, 593 So.2d 1176 (Fla. Dist. Ct. App.\n1992), where an alleged adopted child sought to inherit from his natural father\'s estate. The appellate\ncourt determined the trial court incorrectly found the child was legally adopted by his stepfather,\nthereby barring inheritance from the child\'s natural father. On appeal the child also advanced an\nargument that the trial court erroneously applied the theory of equitable adoption to change his\nstatus to that of a legally adopted child which precluded inheritance from his natural father.\nAlthough apparently dicta, the court responded by stating:\n[Equitable adoption] is applied in an intestate estate to give effect to the intent of the decedent to\nadopt and provide for the child. If no legal adoption occurred and [stepfather] were to die intestate,\n[child] could use the theory of equitable adoption to inherit a share of his estate. However,\napplication of this doctrine does not change his status to that of a legally adopted child. Equitable\nadoption could only affect his rights against the intestate estate of [stepfather]. It does not affect his\nrights against the intestate estate of his natural father....\nId. at 1178 (citation omitted).\nThe Florida court had no difficulty announcing that an equitably adopted child could inherit from\nboth the adoptive parents and from the natural parents because the doctrine of equitable adoption\ndoes not change the child\'s status to that of a legally adopted person. We see no reason for a\ndifferent result in Missouri.\nAlthough not factually like the instant case, Halterman contains a similar issue to that raised here. The\nnatural father in Halterman claimed the alleged adoptive mother was not entitled to establish that she\nwas the deceased child\'s mother through equitable adoption because the doctrine is solely for the\nbenefit of the child. Here, for the same reason, Appellant claims that Respondent cannot rely on the\ndoctrine to deny Appellant\'s inheritance rights.\n154\n\n\x0cAfter the natural father in Halterman filed a wrongful death action for the death of his daughter, the\nalleged adoptive mother filed a motion to intervene on the basis that she was the child\'s mother by\nan equitable adoption. Relying on Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556 (banc 1931), the\nappellate court upheld denial of the motion to intervene and said, \xe2\x80\x9cIt is clear from Drake that\nequitable adoption was developed solely to benefit the child.\xe2\x80\x9d 867 S.W.2d at 560. According to\nHalterman the primary purpose of equitable adoption is illustrated by Rumans v. Lighthizer, supra,\nwhich held that equitable adoption could not be used to establish heirship for the purpose of\ninheriting from the alleged equitably adopted child. Id.\nThe result in Halterman reinforces our view that the doctrine of equitable adoption does not bar\nAppellant\'s inheritance rights in her natural father\'s estate. Application of the doctrine in this case\nbenefits only Respondent which is contrary to the purpose of the doctrine as reasoned in Halterman.\nTherefore, we hold that the doctrine of equitable adoption does not apply in this case to bar\nAppellant\'s inheritance rights in her natural father\'s estate. If we held otherwise, the primary purpose\nof the doctrine would be ignored.\nThe judgment is reversed, and the cause is remanded for further proceedings.\nNotes and Questions\n1. The Court in the Gardner case discusses the difference between the legal doctrines of equitable\nadoption and adoption by estoppel. The Court classifies equitable adoption as a judicial remedy used\nto enforce a contract to adopt. The Court refers to the adoption by estoppel doctrine as a judicial\nremedy utilized to prevent someone from denying the existence of the adoption. But see Luna v.\nEstate of Rodriguez, 906 S.W.2d 576 (Tex. App. 1995)(Court merges the doctrines and analyzes the\ncase under a theory of equitable adoption by estoppel.).\n2. Equitable adoption may be applicable in the following situations.\nSituation One: Josephine decided that she did not want to raise her daughter, Bonnie, as a single\nparent. Thus, she asked her friends, Bertha and Elmer, to adopt the child. Bertha and Elmer were\nalready the parents of one birth child and one legally adopted child. The parties signed the adoption\npapers, but the petition was never filed. Nonetheless, Bonnie lived with Bertha and Elmer until she\nreached the age of majority. She had minimal contact with Josephine. Josephine told everyone that\nBertha and Elmer were Bonnie\xe2\x80\x99s adoptive parents. Bertha and Elmer held Bonnie out as their\ndaughter. Since the adoption papers were never filed, the jurisdiction did not legally recognize the\nadoption. However, the court could use its equitable powers to perform the adoption by operation\nof law. The result would be that Bonnie, as an equitably adopted child, would be able to inherit from\nBertha and Elmer on par with their birth and legally adopted children. See Cubley v. Barbee, 735\nS.W.2d 72 (Tex. 1934); Lankford v. Wright, 489 S.E.2d 604 (N.C. 1997).\nSituation Two: After his wife died, Craig told his deceased wife\xe2\x80\x99s parents he did not feel qualified to\nraise his two small children. Craig\xe2\x80\x99s in-laws decided to take the children into their home in order to\ngive Craig time to grieve. Once the children moved in with his deceased wife\xe2\x80\x99s parents, Craig had no\nfurther contact with the children. He said that it was too painful for him to see the children because\nthey looked like their mother. The children lived with their maternal grandparents until they reached\n155\n\n\x0cthe age of majority. Since the grandparents never attempted to adopt the children, the jurisdiction\ndid not recognize the children as being legally adopted. Nevertheless, the court could use its\nequitable powers to imply a contract to adopt. Then, the court would use its equitable powers to\nenforce the implied contact to adopt. Consequently, Craig\xe2\x80\x99s children would be able to inherit from\ntheir maternal grandparents on par with their mother\xe2\x80\x99s siblings. Because of the lack of parental\nconsent to the adoption a child presenting this type of fact pattern to a court may have a more\ndifficult time proving an equitable adoption. See Wheeling Dollar Sav. & Trust Co. v. Singer, 250 S.E.2d\n369 (W. Va. 1978); DeHart v. DeHart, 986 N.E.2d 85 (Ill. 2013).\n3. Adoption by estoppel is meant to prevent someone from objecting to the classification of a child\nas adopted in some circumstances. The doctrine comes into play when there has been a reasonable,\ndetrimental reliance on a promise (explicit or implied) to adopt. As the Gardner court states:\n\xe2\x80\x9c\xe2\x80\x99Adoption by estoppel\xe2\x80\x99 has been described as a shorthand method of saying that because of the\npromises, acts and conduct of an intestate deceased, those claiming under and through him are\nestopped to assert that a child was not legally adopted or did not occupy the status of an adopted\nchild.\xe2\x80\x9d\nThe right to inherit through the intended adoptive parents\n\nBd. of Education of Montgomery County v. Browning, 635 A.2d 373 (Md. 1994)\nMURPHY, Chief Judge.\nThis case involves the concept of equitable adoption, and in particular, whether a person, if\nequitably adopted, may inherit by intestate succession from the sister of an equitably adoptive\nparent.\nEleanor G. Hamilton, a resident of Montgomery County, died intestate in August, 1990, leaving an\nestate valued at $394,405.57. At the time of her death, Hamilton had no known living blood\nrelatives. Appellee Paula M. Browning was appointed Personal Representative of the Estate of\nEleanor G. Hamilton on May 21, 1991.\nPaula was born out of wedlock on October 4, 1919. Her natural father, Lawrence E. Hutchison,\nlegally adopted Paula on October 10, 1921. In March of 1922, Hutchison married Marian Estelle\nGibson. Paula grew up in the Hutchison\'s household in the District of Columbia; Marian, however,\nnever formally adopted Paula. Marian, who died in 1986, was the sister of the decedent Eleanor\nHamilton.\nBecause Eleanor apparently died without any heirs, the Board of Education of Montgomery County\nclaimed that it was entitled to Eleanor\'s estate pursuant to the Maryland escheat laws Believing that\nshe was a legal heir of Eleanor, Paula filed a complaint for declaratory judgment and a motion for\nsummary judgment in the Circuit Court for Montgomery County. In her complaint, Paula named the\nBoard of Education as defendant because the Board had a potential claim to the proceeds of\nEleanor\'s estate through the escheat laws. Paula sought a declaration that she was the equitably\nadopted child of Marian; and as such was entitled to inherit the Estate of Eleanor G. Hamilton,\nMarian\'s sister.\n156\n\n\x0cIn support of her motion for summary judgment, Paula submitted an affidavit in which she stated\nthat she maintained a normal child-parent relationship with Lawrence and Marian Hutchison\nthroughout her life. She also stated that Lawrence and Marian told her when she was a child, and\nlater when she was an adult, that she had been adopted by them; moreover, Paula stated that Marian\nspecifically told her in 1984 that Marian had adopted her. In 1992, when she was asked to produce\nproof of adoption for the instant litigation, Paula discovered that she had not been legally adopted\nby Marian. In her affidavit, Paula also stated that no other heirs had presented or filed claims\nregarding Eleanor\'s estate.\nThe Board of Education of Montgomery County, pursuant to Maryland Rule 2-322(b), filed a\nmotion to dismiss for failure to state a claim upon which relief can be granted. The Board\nmaintained that Paula\'s complaint failed to allege facts which would enable a court to declare that\nshe was the equitably adopted child of Marian. The Board further averred that, even if Paula were\nadjudged to be the equitably adopted daughter of Marian, she could not, as a matter of law, inherit\nfrom the estate of her equitably adoptive mother\'s sister. The Board therefore argued that because\nEleanor Hamilton died without a will and without any legal heirs, it was entitled to her estate under\nthe Maryland law of escheat, as set forth in Maryland Code (1991 Repl. Vol., 1993 Cum. Supp.) \xc2\xa7 3105(a) of the Estates and Trusts Article. Specifically, the Board asked the circuit court to grant its\nmotion to dismiss and declare that: (1) Paula is not entitled to inherit from Eleanor\'s estate; and (2)\nthe estate escheats to the Board of Education of Montgomery County.\nAfter a December, 1992 hearing, the court concluded that the Board of Education had conceded\nthat Paula was the equitably adopted child of Marian. The court therefore framed the sole remaining\nissue as follows: \xe2\x80\x9cwhether Paula Browning, as the equitably adopted daughter of Marian Hutchison,\nmay inherit as a collateral heir to the estate of Marian Hutchison\'s sister, Eleanor G. Hamilton.\xe2\x80\x9d\nRelying on First Nat. Bank in Fairmont v. Phillips, 176 W.Va. 395, 344 S.E.2d 201 (1985), upon the fact\nthat the Board of Education was the only other party interested in the Hamilton estate, and on the\nclose relationship between Paula and her equitably adoptive mother, the court determined that Paula\ncould inherit from the estate of her equitably adoptive mother\'s sister. Thus, the court denied the\nBoard\'s motion to dismiss and granted Paula\'s motion for summary judgment. The Board appealed\nto the Court of Special Appeals. We granted certiorari prior to consideration of the appeal by the\nintermediate appellate court to decide the significant issue presented in this case 331 Md. 178, 626\nA.2d 967.\nII\nBefore us, the Board reasserts its view that an equitably adopted child may not inherit from her\nequitably adoptive parent\'s sibling. On the other hand, Paula argues that the lower court correctly\nruled, as a matter of law, that a child may inherit by intestate succession from the sister of an\nequitably adoptive parent thereby defeating an escheat to the State.\nThe Board also contends that the lower court improperly granted Paula\'s motion for summary\njudgment because the court failed to consider the elements of equitable adoption and the evidence\nfell far short of the clear and convincing proof necessary to establish an equitable adoption. We need\nnot address this argument, however, because even assuming arguendo that Paula was equitably\nadopted by Marian, we conclude that Paula may not inherit from her equitably adoptive parent\'s\nsister. Therefore, the trial court should have granted the Board\'s motion to dismiss and declared that\n157\n\n\x0cthe Estate of Eleanor G. Hamilton escheats to the Board of Education of Montgomery County.\nWhen analyzing a motion to dismiss pursuant to Maryland Rule 2-322(b), we must accept as true all\nwell-pleaded facts and allegations in the complaint. Faya v. Almaraz, 329 Md. 435, 443, 620 A.2d 327\n(1993). Dismissal is only proper if the facts and allegations viewed in the light most favorable to the\nplaintiff fail to afford the plaintiff relief if proven. Id.; Berman v. Karvounis, 308 Md. 259, 264-65, 518\nA.2d 726 (1987); Sharrow v. State Farm Mutual, 306 Md. 754, 768, 511 A.2d 492 (1986). Moreover,\n\xe2\x80\x9cany ambiguity or uncertainty in the allegations bearing on whether the complaint states a cause of\naction must be construed against the pleader.\xe2\x80\x9d Figueiredo-Torres v. Nickel, 321 Md. 642, 647, 584 A.2d\n69 (1991) (quoting Sharrow, supra, 306 Md. at 768, 511 A.2d 492).\nFor purposes of our analysis, we accept as true the factual allegations of Paula\'s complaint for\ndeclaratory judgment and motion for summary judgment. Thus, we will assume that Paula is the\nequitably adopted daughter of Marian Hutchison, Eleanor Hamilton\'s sister.\nIII\nA. Equitable Adoption\nIn Maryland, the general rule is that there can be no adoption except under and in accordance with a\nstatute. See In re Adoption No. 9979, 323 Md. 39, 43, 591 A.2d 468 (1991); In re Lynn M., 312 Md. 461,\n463, 540 A.2d 799 (1988); McGarvey v. State, 311 Md. 233, 236, 533 A.2d 690 (1987). There is a\nnarrow exception to this rule, however; equitable adoption, sometimes referred to as \xe2\x80\x9cadoption by\nestoppel,\xe2\x80\x9d \xe2\x80\x9cvirtual adoption,\xe2\x80\x9d or \xe2\x80\x9cde facto adoption,\xe2\x80\x9d permits individuals to circumvent the\nstatutory adoption procedures for certain limited purposes. See McGarvey, supra; Besche v. Murphy, 190\nMd. 539, 59 A.2d 499 (1948). Under the doctrine of equitable adoption, however, no relationship of\nparent and child is created and consequently, an equitably adopted child does not attain the status of\na statutorily adopted child. McGarvey, 311 Md. at 239-40, 533 A.2d 690.\nThe doctrine of equitable adoption \xe2\x80\x9cinvolves the notion that if an individual who is legally\ncompetent to adopt a child enters into a contract to do so, and if the contract is supported by\nconsideration in the form of part performance that falls short of completion of statutory adoption,\nthen a court, applying equitable principles, may accord to the child the status of a formally adopted\nchild for limited purposes.\xe2\x80\x9d McGarvey, 311 Md. at 234, 533 A.2d 690. We have explained that when\nthere is a valid contract for adoption, although not consummated and given legal effect by adoption\nproceedings during the lifetime of the adopting parent, the contract may, upon the parent\'s death, be\nenforced to the extent of decreeing that the child occupy the status of an adopted child in equity,\nentitled to rights of inheritance from the adoptive parent where circumstances require such relief as\na matter of justice. See Besche, supra, 190 Md. at 547, 59 A.2d 499.\nIn McGarvey, supra, we stated that \xe2\x80\x9cMaryland would likely look with favor upon the doctrine [of\nequitable adoption] to the extent of permitting an equitably adopted child to take property from an\nequitably adoptive parent by intestate succession.\xe2\x80\x9d 311 Md. at 238. The basis of this doctrine, which\npermits a child to share in the estate of the deceased parent who had agreed to adopt the child, is\nthat it is inequitable and unjust to allow the parent to escape the obligations of an adoptive parent by\nfailing to comply with the agreement. See Thompson v. Moseley, 344 Mo. 240, 125 S.W.2d 860, 862\n(1939).\n158\n\n\x0cThis equitable principle of law has been explained under two different theories. The first theory is\nspecific performance of the contract to adopt. Applying this theory, courts enforce the promise of\nthe adoptive parent provided that sufficient consideration is given in return for the promise of\nadoption. However, \xe2\x80\x9c[c]ourts grant this remedy only against the estate of a deceased promisor.\xe2\x80\x9d See\nNote, Equitable Adoption: They took him into their home and called him Fred, 58 Va.L.Rev. 727, 730 (1972).\nThe second theory is estoppel under which the personal representative of the estate of the adoptive\nparent is estopped from asserting that the child was not an adopted child. Specifically:\n\xe2\x80\x9c[estoppel operates] to preclude adoptive parents and their privies [i.e., the estate] from\nasserting the invalidity of adoption proceedings, or, at least, the status of the adopted child,\nwhen, by performance upon the part of the child, the adoptive parents have received all the\nbenefits and privileges accruing from such performance, and they by their representations\ninduced such performance under the belief of the existence of the status of adopted child.\xe2\x80\x9d\nJones v. Guy, 135 Tex. 398, 143 S.W.2d 906, 908 (1940). It is not important which theory is employed\nbecause the application of the doctrine of equitable adoption is the same. See Note, supra, 58\nVa.L.Rev. at 736-38. The courts under either theory focus upon the equities involved and require\n\xe2\x80\x9cclear and convincing evidence\xe2\x80\x9d of the adoption contract. See McGarvey, supra, 311 Md. at 238, 533\nA.2d 690.\nIn formally recognizing the doctrine of equitable adoption in Maryland, McGarvey relied on Besche,\nsupra, where we said:\n\xe2\x80\x9c \xe2\x80\x98the authorities very generally establish the proposition, that a parol obligation by a person\nto adopt the child of another as his own, accompanied by the virtual though not statutory\nadoption, and acted upon by both parties during the obligor\'s life, may be enforced upon the\ndeath of the obligor, who dies without disposing of the property by his will;\xe2\x80\x99 ... [this\nproposition] seems to be supported by the weight of authority in this country to the extent\nthat the courts decree that a child so treated will be entitled to a right of inheritance from the\nestate of the foster parent such as a natural child would enjoy, where the child in question\nhas faithfully and fully performed the duties of a natural child to the foster parents.\xe2\x80\x9d\n190 Md. at 546, 59 A.2d 499 (quoting in part Clayton v. Supreme Conclave, Improved O. of H., 130 Md.\n31, 36-37, 99 A. 949 (1917)). Besche further stated:\n\xe2\x80\x9c[B]ased upon the maxim that equity considers that done which ought to be done, ...\xe2\x80\x98[i]t is\nnow firmly established that an oral agreement to adopt, where there has been a full and\nfaithful performance on the part of the adoptive child, but which was never consummated\nby formal adoption proceedings during the life of the adoptive parent, will, upon the death\nof the latter, and when equity and justice so requires, be enforced to the extent of decreeing\nthat such child occupies in equity the status of an adopted child, entitled to the same right of\ninheritance from so much of his foster parent\'s estate that remains undisposed of by will or\notherwise, as he would have been had he been a natural born child.\xe2\x80\x99 \xe2\x80\x9d\n190 Md. at 547, 59 A.2d 499 (quoting in part Burdick v. Grimshaw, 113 N.J.Eq. 591, 168 A. 186, 188\n(1933)).\nMaryland therefore recognizes the doctrine of equitable adoption as it applies to an equitably\nadopted child who seeks to inherit by intestate succession from the estate of an equitably adoptive\n159\n\n\x0cparent. McGarvey, 311 Md. at 238-39, 533 A.2d 690. A majority of other jurisdictions also recognize\nthe doctrine to the extent of permitting an adoptee to inherit from an equitably adoptive parent\'s\nestate. See George A. Locke, Annotation, Modern Status as to Equitable Adoption or Adoption by Estoppel,\n97 A.L.R.3d 347 (1980 & Supp.1993). However, few courts apply the doctrine \xe2\x80\x9cas we move beyond\nthe subject of inheritance by an equitably adopted child from an equitably adoptive parent.\xe2\x80\x9d\nMcGarvey, 311 Md. at 239, 533 A.2d 690.\nB. The Scope of the Doctrine of Equitable Adoption\nAs we earlier discussed, the doctrine of equitable adoption does not affect the status of the child; it\nmerely entitles the adopted child to inheritance rights from the adoptive parent. See McGarvey, 311\nMd. at 239-40, 533 A.2d 690. In the instant case, Paula asks us to extend the doctrine of equitable\nadoption so that an equitably adopted child may inherit from her equitably adoptive parent\'s sibling,\nthereby defeating an escheat to the Board of Education. In other words, Paula argues that an\nequitably adopted child may inherit through, as opposed to from, her equitably adoptive parent.\nAlthough Maryland has never considered this issue, a few jurisdictions have addressed it. In Menees v.\nCowgill, 359 Mo. 697, 223 S.W.2d 412 (1949), cert. denied, 338 U.S. 949, 70 S.Ct. 488, 94 L.Ed. 585\n(1950), the Supreme Court of Missouri faced the question of whether a \xe2\x80\x9cdaughter\xe2\x80\x9d could inherit\nfrom her equitably adoptive \xe2\x80\x9cfather\'s\xe2\x80\x9d sister. There, the court stated:\n\xe2\x80\x9cWhile it is in effect admitted that the [\xe2\x80\x9cdaughter\xe2\x80\x9d] would have been entitled to a decree of\nequitable adoption against [her putative father] during his lifetime, or against his heirs at law\nor his personal representatives after his death, entitling her to inherit from him as an adopted\ndaughter, she is not entitled to such a decree as against the collateral kin of his sister, who\nwere not parties to the adoption contract and who are not bound thereby. No equities exist\nin her favor as against them authorizing a decree of equitable adoption by him as against\nthem.... A decree for equitable adoption of [the \xe2\x80\x9cdaughter\xe2\x80\x9d] by [her putative father] in this\nproceeding against the collateral heirs of [the putative father\'s] sister would be wholly\nunauthorized.\nId. 223 S.W.2d at 418. The Supreme Court of Missouri continued:\nIf [the putative father] had legally adopted [the \xe2\x80\x9cdaughter\xe2\x80\x9d] in compliance with statutory\nrequirements, the adoption would have been binding on all persons, ... but in an equitable\nproceeding based upon contract, only the parties thereto, or those in privity with them are\nbound. Equity acts only against specific individuals and, in such case, one person may be\nbound and not another. A decree of equitable adoption merely forecloses \xe2\x80\x98the parties to the\nsuit against a denial of the status that the court declares\' and the status decreed exists only in\nequity and against the judgment defendants. As between [the parties in the instant case], [the\n\xe2\x80\x9cdaughter\xe2\x80\x9d] was not, in either law or equity, the adopted child of [the putative father] by\nreason of his contract to adopt her.\xe2\x80\x9d\nId. The court therefore determined that the \xe2\x80\x9cdaughter\xe2\x80\x9d could not inherit through her equitably\nadoptive \xe2\x80\x9cfather;\xe2\x80\x9d i.e., from her \xe2\x80\x9cadoptive aunt\'s\xe2\x80\x9d estate.\nSimilarly, in In re Estate of Olson, 244 Minn. 449, 70 N.W.2d 107 (1955), the Supreme Court of\nMinnesota addressed the question of whether an equitably adopted child could inherit from his\n160\n\n\x0cequitably adoptive parent\'s brother. In that case, Johnny O. Olson, the equitably adoptive son of\nGilbert K. Olson\'s brother, sought to inherit from the estate of Gilbert K. Olson as an adoptive\nnephew. The court summarized its position as follows:\n\xe2\x80\x9cWe believe that an equity court, weighing the equities involved, may ... treat the situation as\nthough the relationship of parent and child had been established and may allow the child to\ninherit from the estate of the one promising to adopt. However, in our opinion, the relationship thus\nenforced does not create a legal adoption as provided in our statutes. When the words\n\xe2\x80\x98equitable adoption\xe2\x80\x99 are used, it is our opinion that the court, under its general equity powers,\nmerely is treating the situation as though the relationship had been created between the one\npromising to adopt and the beneficiary of that promise.\xe2\x80\x9d\nId. 70 N.W.2d at 110. (emphasis added) The court then explained that the doctrine does not permit\nequitably adopted children to inherit through their equitably adoptive parents. Thus, the court stated\n\xe2\x80\x9cno equities have been shown in favor of Johnny O. Olson and against the heirs of Gilbert K.\nOlson; therefore, in our opinion, he has no rights in the estate of [his equitably adoptive parent\'s\nbrother,] Gilbert K. Olson.\xe2\x80\x9d Id.\nIn Pouncy v. Garner, 626 S.W.2d 337 (Tex.Ct.App.1981), appellant Pouncy sought to recover a share\nof the estate of his equitably adoptive parents\' natural daughter. In other words, Pouncy sought to\ninherit as the decedent\'s adopted brother. Appellees argued that, even if Pouncy was equitably\nadopted by the decedent\'s parents, Pouncy was not entitled, as a matter of law, to inherit from the\ndecedent as her adopted brother. Agreeing with the appellees, the court stated:\n\xe2\x80\x9cAppellant Pouncy is not seeking to recover a share of the estate of [his equitably adoptive\nparents]; instead, he is seeking to inherit the estate of Lula D. Dailey as her equitably adopted\nbrother on the grounds that her parents were estopped to deny such adoption.\nUnder adoption by estoppel, only the adoptive parents and their privies are estopped to deny the\nadoption. The estoppel to deny the adopted status does not operate or work against collateral\nkindred not in privity with the adoptive parents. A child adopted by estoppel does not inherit from\ncollateral kindred, as there is no privity of estate between such kindred and the adoptive parents.\xe2\x80\x9d\nId. at 341-42. (emphasis in original). The court concluded: \xe2\x80\x9cThus, even if Pouncy had established\nthat he was adopted under the estoppel doctrine ..., he would not inherit from Lula as her equitably\nadopted brother.\xe2\x80\x9d Id. at 342.\nThe West Virginia Supreme Court of Appeals, however, has permitted an equitably adopted child to\ninherit through an equitably adoptive parent under limited circumstances. See First Nat. Bank in\nFairmont v. Phillips, 176 W.Va. 395, 344 S.E.2d 201 (1985). In that case, the court phrased the issue as\nfollows: \xe2\x80\x9cmay an equitably adopted child inherit as a brother or sister from another child of the\nequitably adoptive parent?\xe2\x80\x9d Id. 344 S.E.2d at 204. The court answered this question in the\naffirmative: an \xe2\x80\x9cequitably adopted child [may] inherit from another child of the adoptive parent.\xe2\x80\x9d Id.\nat 205. The court, however, limited its holding to the facts of the case. Specifically, it stated that\n\xe2\x80\x9c[w]e leave to another day the more troublesome question of whether the equitably adopted child\nwould inherit from collateral kindred of the adoptive parent(s).\xe2\x80\x9d Id. at 205 n. 6.\nIt is therefore clear that a majority of jurisdictions do not permit equitably adopted children to\n161\n\n\x0cinherit from the kindred of their adoptive parents. Even the one jurisdiction that permitted an\nequitably adopted child to inherit through her adoptive parents, namely West Virginia, specifically\nlimited the breadth of its holding. Moreover, in the area of equitable adoption, we have said that\nMaryland is \xe2\x80\x9csurely not prepared to go as far as West Virginia has gone.\xe2\x80\x9d McGarvey, supra, 311 Md. at\n240, 533 A.2d 690.\nIn the instant case, Paula seeks to inherit not from her putative mother, Marian Hutchison, but\nrather from Marian\'s sister. We agree with those cases that stand for the proposition that an\nequitably adopted child may not inherit through an equitably adoptive parent. Under both contractual\nand estoppel notions, the equities that clearly exist in favor of permitting an equitably adopted child\nto inherit from an equitably adoptive parent do not exist when that child seeks to inherit from a\nsibling of the child\'s adoptive parents.\nPaula suggests that those cases which hold that an equitable adoptee may not inherit through an\nequitably adoptive parent are inapposite to the case at bar because in each of those cases, a legal heir\nof the decedent, as well as the equitably adopted child, claimed an interest in the estate, whereas in\nthe instant case, only the Board of Education has filed a claim against the Estate of Eleanor\nHamilton. Paula maintains that a party, who is not an heir, such as the Board of Education, cannot\ndefeat her claim to the Hamilton estate.\nPaula\'s counsel conceded during oral argument before us that if an heir existed, Paula would have no\ninterest in Eleanor\'s estate. Consequently, the crux of Paula\'s argument is that the doctrine of\nequitable adoption permits an equitably adopted child to inherit from the adoptive parent\'s sibling\nwhen the only other party seeking to inherit is the local Board of Education through the escheat\nlaws.\nThis rationale was rejected by a federal district court in In re Estate of McConnell, 268 F. Supp. 346\n(D.D.C. 1967), aff\'d, 393 F.2d 665 (D.C.Cir.1968). There, the federal district court, applying Florida\nlaw, was faced with the question of whether the natural children of the equitably adoptive parents\ncould inherit from the equitable adoptee as \xe2\x80\x9chalf-sisters\xe2\x80\x9d thereby defeating an escheat to the District\nof Columbia. The court held that no Florida or District of Columbia case \xe2\x80\x9ctouching on equitable\nadoption is a precedent for a decree by this Court approving distribution of the estate of a deceased\nadoptee to the heirs of an adoptive parent who did not legally consummate the adoption.\xe2\x80\x9d Id. at 349.\nAccordingly, the court found that the \xe2\x80\x9chalf-sisters\xe2\x80\x9d had no interest in the estate and the estate\nescheated to the District of Columbia.\nAlthough Paula correctly points out that escheats are not favored by law, Maryland law is crystal\nclear that if no legal heir exists, the decedent\'s property escheats to the local Board of Education. See\nMaryland Code (1991 Repl. Vol., 1993 Cum. Supp.) \xc2\xa7 3-105 of the Estates and Trust Article. In the\ninstant case, therefore, because Paula may not inherit from her equitably adoptive mother\'s sister,\nand Eleanor Hamilton died without heirs, her estate escheats to the Board of Education.\nWe therefore conclude that an equitably adopted child may not inherit from her adoptive parent\'s\nsibling. Consequently, the entry of summary judgment in favor of Paula was inappropriate in this\ncase. Furthermore, the circuit court erred in denying the Board\'s motion to dismiss. Because Paula\nmay not inherit from Eleanor\'s estate, it escheats to the Board of Education of Montgomery\nCounty.\n162\n\n\x0cJudgment of the Circuit Court for Montgomery County Reversed. Case remanded to that Court\nwith directions to enter a declaratory judgment not inconsistent with this opinion.\nELDRIDGE, J., dissenting:\nThe Court decides today that when the \xe2\x80\x9caunt\xe2\x80\x9d of an equitably adopted child dies intestate, when the\ndeceased had no \xe2\x80\x9cheirs\xe2\x80\x9d as defined by statute, and when the contest over the estate is between the\nequitably adopted child claiming through her parent and the State claiming by escheat, the State\nshould prevail. Neither the cases nor reason support this result.\n\xe2\x80\x9cEquitable adoption\xe2\x80\x9d is a principle of equity law. The doctrine is typically applied when a \xe2\x80\x9cparent\xe2\x80\x9d\nhas entered an arrangement to adopt a child that is not carried out according to the statutory\nrequirements but when both have acted as if there were a parent-child relationship. See McGarvey v.\nState, 311 Md. 233, 236-238, 533 A.2d 690, 691-692 (1987). As the majority points out, the doctrine\nis rooted in the notion that it would be \xe2\x80\x9cinequitable and unjust to allow the parent to escape the\nobligations of an adoptive parent by failing to comply with the agreement.\xe2\x80\x9d Consequently, for\npurposes of inheriting from the parent, courts will place the child \xe2\x80\x9cin the position he would have\nbeen in, had he been adopted.\xe2\x80\x9d McGarvey v. State, supra, 311 Md. at 238, 533 A.2d at 692; Besche v.\nMurphy, 190 Md. 539, 549-550, 59 A.2d 499, 505 (1947). Maryland recognizes the doctrine of\nequitable adoption. McGarvey v. State, supra, 311 Md. at 238, 533 A.2d at 692.\nAlthough this Court has not defined the contours of the doctrine, some other jurisdictions have\nrefused to allow the equitably adopted child to inherit through the equitably adopting parents in a\ncontest between the equitably adopted child and a legal heir of the decedent.\nIn general, I agree that an equitably adopted child should not share in the intestate estate of a\ncollateral \xe2\x80\x9crelative\xe2\x80\x9d at the expense of the legal heirs of that relative. The statutory laws of descent\nand distribution are a legislative attempt to divine how the decedent would have disposed of his or\nher property had there been a will. Barron v. Janney, 225 Md. 228, 234-235, 170 A.2d 176, 180 (1961).\nIt is not unreasonable, absent a will, to speculate that a deceased would have preferred that his or\nher property devolve upon a legal heir rather than a person with whom the deceased had no\nadoption arrangement.\nNot one case cited by the majority, however, involves a contest between the State and an equitably\nadopted child. The Court merely assumes that the same considerations which have defeated the\nclaim of an equitably adopted child, in a contest with a legal heir, also apply in this case. This\nassumption, however, overlooks the State\'s unfavorable position in the intestate succession scheme.\nBecause \xe2\x80\x9csociety prefers to keep ... property within the family as most broadly defined, or within the\nhands of those whom the deceased has designated,\xe2\x80\x9d escheat is disfavored and is enforced only as a\nlast resort. United States v. 198.73 Acres of Land, More or Less, 800 F.2d 434, 435 (4th Cir.1986)\n(emphasis added). Since the law disfavors escheat, the equitably adopted child who has served as a\ndutiful family member should be entitled to the estate of her aunt. Furthermore, the factors that\nweighed against the equitably adopted child in a contest with an heir have no relevance here, for\nunlike those who would be entitled to take as heirs, the State has no \xe2\x80\x9cfamily\xe2\x80\x9d connection to the\nintestate decedent. It functions solely as a repository of last resort for the decedent\'s estate should\nthere be no family members.\nIn deciding that Paula Browning is not entitled to the estate of Eleanor Hamilton, her \xe2\x80\x9caunt,\xe2\x80\x9d the\n163\n\n\x0cmajority relies on reasoning that is either inconsistent or circular. The majority asserts that\n\xe2\x80\x9c[a]lthough Paula correctly points out that escheats are not favored by law, ... Maryland law is crystal\nclear that if no legal heirs exist, the decedent\'s property escheats to the local board of education\xe2\x80\x9d\n(citations omitted) (emphasis added). If, by \xe2\x80\x9clegal heirs,\xe2\x80\x9d the majority means the legal heirs as\ndefined by statute, then the statement is inconsistent with the Court\'s view that one who is equitably\nadopted, even though not included among the statutory heirs, is permitted to inherit from an\nintestate equitably adopting parent. If, on the other hand, the majority means, by using the term\n\xe2\x80\x9clegal heir,\xe2\x80\x9d simply a person who is entitled to inherit, then it has begged the question. The reason\nthe parties are before this Court is for a determination of who is legally entitled to inherit. Equitable\nadoption is one of the reasons which entitles a person to inherit. The result is that the Court has\ndecided today, based on the most intellectually unsatisfying \xe2\x80\x9creasons,\xe2\x80\x9d to deprive Paula Browning of\nan inheritance.\nThe majority also ignores the fact that this is not simply a case where the relationship between Paula\nand Marian Hutchinson, the deceased\'s sister, is based entirely upon equitable adoption. In this case,\nHutchinson had married Paula\'s biological father and, as a result, became her stepmother. According\nto Maryland Code (1991 Repl. Vol., 1993 Cum. Supp.), \xc2\xa7 3-104(e) of the Estates and Trusts Article,\nbased on this relationship, Paula would be a legal heir of Marian Hutchinson. To assume, in light of\nthis, that the deceased, leaving no will, would have preferred her property to go to the State by\nescheat rather than to the legal heir of her sister compounds the inequity.\nIn effect, the Court has said today that when Eleanor Hamilton died intestate, she would have\npreferred to leave her estate to the government rather than to Paula Browning who, although never\nformally adopted, presumably because of oversight, was a member of the family for over seventy\nyears. I do not believe that such a result would have been intended by the deceased.\nNotes and Problems\n1. There are three theories under which a person who had not been legally adopted may obtain the\nstatus of adopted child. In the one situation, the person parenting the child makes no attempt to\nformally adopt the child even after they have received implicit or explicit consent to do so. A child\ninvolved in that type of case may rely upon the doctrine of equitable adoption to achieve the right to\ninherit from the potential adoptive parent. In another case, the person does not fulfill the promise\nhe or she makes to adopt the child or the person\xe2\x80\x99s attempt to adopt the child is unsuccessful. The\ncourt may resolve the case using the theory of equitable estoppel or a breach of contract theory. The\ndoctrine of equitable estoppel permits the court to prevent persons from objecting to the\nclassification of the relationship between the person and the child as an adoption after the child has\nrelied upon the belief that he or she is an adopted child. Under a breach of contract theory, the court\nspecifically enforces the promise to adopt the child. The court uses its equitable powers to deemed\nthe child to be adopted.\n2. The equitably adopted child is usually not permitted to inherit through his or her adoptive parent.\nBoard of Educ. v. Browning, 635 A.2d 373 (Md. 1994). In addition, the adoptive parent and his or her\nrelatives are not eligible to inherit from the equitably adopted child. Estate of Riggs, 440 N.Y.S.2d 450\n(Sur. 1980). The equitably adopted child can inherit from his or her adoptive parent and his or her\nbiological parent. See Gardner v. Hancock, 924 S.W.2d 857 (Mo. App. 1996). Some states have refused\nto adopt the doctrine of equitable adoption. See Ladd v. Estate of Kellenberger, 307 S.E. 850 (N.C.\n164\n\n\x0c1983); Wilks v. Langley Adm\xe2\x80\x99r, 451 S.W.2d 209 (Ark. 1970); In re Estate of Fox, 328 N.E.2d 224 (Ind.\nApp. 1975); Clarkson v. Bliley, 38 S.E.2d (Va. 1946).\n3. In which of the following situations might the court find an equitable adoption to enable the child\nto inherit from the alleged adoptive parents?\n(a). Pete, a widower, was struggling to raise his three year old daughter, Dominic. While he worked,\nPete left Dominic with Jennifer, his neighbor. Pete was killed when he was struck by lightning. Pete\nwas not survived by any close relatives, so Jennifer made funeral arrangements for Pete. Dominic\nlived with Jennifer until she reached the age of majority and went to college. When Dominic was\ntwenty-five years old, Jennifer died intestate. Dominic sought to inherit a portion of Jennifer\xe2\x80\x99s estate.\n(b). When she was sixteen years old, Keisha gave birth to a baby boy who she named Travon.\nKeisha and Travon lived with her parents, Emily and Lionel. Two years later, Keisha was injured in\na car accident and had to undergo emergency surgery. At the hospital, Keisha told Lionel, \xe2\x80\x9cIf I don\xe2\x80\x99t\nmake it, take care of Travon.\xe2\x80\x9d Keisha died during surgery. Emily and Lionel reared Travon until he\nreached the age of majority. Lionel died intestate as the result of a heart attack. After Emily received\nher elective share, Travon sought to inherit a portion of Lionel\xe2\x80\x99s estate.\n(c). Karen and Roberto were the parents of twin daughters, Juanita and Maria. Karen and Roberto\nbecame addicted to drugs. Family and Children Services removed Juanita and Maria from the\ncustody of their parents and took them to the police station. A social worker contacted Roberto\xe2\x80\x99s\nmother, Luisa, and told her to come pick up the children. Luisa took the children to her home and\nthey remained there until they reached the age of majority. Karen and Roberto Selena never stayed\nsober long enough to regain custody of Juanita and Maria. When Luisa died intestate, Juanita and\nMaria sought to inherit a portion of Luisa\xe2\x80\x99s estate.\n(d). Pinky became pregnant as the result of an affair with a married man. When she was five months\npregnant, Pinky met Douglas. A few weeks later, Pinky and Douglas moved in together. Pinky gave\nbirth to a son she named Avery. Douglas had his named placed on Avery\xe2\x80\x99s birth certificate. Two\nyears later, Pinky gave birth to Douglas\xe2\x80\x99 son, Raymond. Pinky and Douglas never married each\nother, and Douglas never formally adopted Avery. Nonetheless, Pinky, Douglas, Avery and\nRaymond lived as a family. When Douglas died intestate, Avery sought to inherit a portion of\nDouglas\xe2\x80\x99 estate.\n(e). Amanda was a single mother of a son named Steven. When Steven was only two years old,\nAmanda was diagnosed with stomach cancer and given only a few months to live. Amanda\xe2\x80\x99s best\nfriend, Diane, agreed to care for the baby if Amanda did not survive the cancer. While Amanda was\nin hospice care, Diane was transferred to a job in Italy and she took Steven with her. After Diane\nleft, Amanda discovered that she had been misdiagnosed. Amanda tried unsuccessfully to find\nDiane, so she could get Steven back. Amanda was never able to locate Diane. Diane held Steven out\nas her son and reared him until he reached the age of majority. When Diane died intestate, Steven\nsought to inherit a portion of Diane\xe2\x80\x99s estate.\n\n165\n\n\x0c4.3.2\n\nAdult Adoption\n\nAdoption is based in contract law. Thus, not surprising, in order to have the right to adopt, a\nperson must be legally capable of executing a contract. Hence, a person must be over the age of\nmajority in order to legally adopt a child. Most adoption statutes do not place specific age limits on\nthe persons adopted. Typically, when a person decides to adopt a child, that person intends to adopt\nsomeone under the age of majority. However, some state adoption laws permit adults to be adopted.\nPrior to the legalization of same-sex marriages, in order to be able to make medical decisions for\ntheir partners, some gays and lesbians adopted their partners. This often became a problem when\nthe adopted partner tried to inherit from the deceased partner\xe2\x80\x99s estate. There are several reasons why\nsomeone might want to adopt another adult.27 The cases in this section illustrate some of those\nreasons. Even a person who is adopted as an adult loses connections to his or her biological family.28\nThe right to inherit through the adoptive parents\nSome courts strictly apply the adoption statute without considering the legislative intent or\nthe motives of the parties. Thus, if the statute permits the adoption of an adult, the court recognizes\nthe adoption regardless of the reason for the adoption. On the other hand, some courts evaluate the\nmotive behind the adult adoption to ascertain if that motive violates public policy. In those cases,\nthe courts exercise their discretion to decide whether or not to recognize the adoption and permit\nthe adopted child to inherit from the adoptive parent.\n\nIn the Matter of the Petition of P.A.L., 5 P.3d 390 (Colo. 2000)\nKAPELKE, J.\nP.A.L. von R. appeals from the judgment of the trial court dismissing the petition to adopt his adult\nsister, K.M.F. We reverse and remand for entry of an adoption decree.\nPetitioner filed his petition pursuant to \xc2\xa7 14-1-101, C.R.S. 1999, together with a consent to the\nadoption and a waiver and acceptance of service signed by his sister. Following an evidentiary\nhearing, the trial court denied the petition. No party opposed the requested adoption.\nThe court found that petitioner, age 60, was seeking the adoption to allow his sister, a German\ncitizen, age 55, to change her name to the original family name. Petitioner stated that his sister had\nbeen unable to effect the name change by any court proceeding in Germany, but that an adoption\ndecree would be recognized.\nThe court also found that there was nothing in the statute that expressly prevented an adult from\nadopting another adult of any age. However, the court indicated that it would exercise its discretion\nand decline to decree the adoption because it appeared to the court to violate the public policy. The\nBrynne E. McCabe, Adult Adoption: The Varying Motives, Potential Consequences, and Ethical Considerations, 22 Quinnipiac\nProb. L.J. 300 (2009).\n28\nSee Kummer v. Donak, 715 S.E. 2d 7 (Va. 2011)(Adult adoption of a woman prevented her children from inheriting\nfrom her biological sister).\n27\n\n166\n\n\x0ctranscript shows that the court was concerned with the lack of age differential between the\npetitioner and his sister and with the fact that they were siblings.\nPetitioner contends that \xc2\xa7 14-1-101 contains no exception based upon age differential or blood\nrelationship. Therefore, he argues that the trial court erred in denying the petition for adoption. We\nagree.\nSection 14-1-101, the adult adoption statute, provides in pertinent part:\n(1) Any person desiring to adopt an adult as heir at law shall file his petition in the juvenile\ncourt of the county and thereupon summons shall issue \xe2\x80\xa6 and be served on the person\nsought to be adopted. Said person shall file in the court a written answer to the petition\xe2\x80\xa6\nand shall either consent to such adoption or deny or disclaim all desire to be adopted by\nsuch person.\n(2) Upon the filing, by the person sought to be adopted, of a disclaimer of all desire to\nbecome the heir at law of the petitioner, the petition shall be dismissed by the court, but upon\nthe filing of a consent to such adoption,\xe2\x80\xa6the prayer of the petition shall be granted, and a decree of adoption\nshall be rendered and entered by the court declaring such person the heir at law of the petitioner and entitled\nto inherit from the petitioner any property in all respects as if such adopted person had been\nthe petitioner\xe2\x80\x99s child born in lawful wedlock, and such decree may or may not change the\nname of such adopted person, as the court rendering the decree may deem advisable;\n(emphasis added).\nThe statute authorizes the adoption of adults for the purpose of giving the adoptee the status of an\nheir of law. In re Trust Created by Belgard, 829 P.2d 457 (Colo. App. 1991).\nAn adult adoption has been described as \xe2\x80\x9cmerely a means of giving effect to a personal transaction\nmutually agreeable between two adults.\xe2\x80\x9d Herrera v. Glau, 772 P.2d 682 (Colo. App. 1989) (quoting\nMartinv. Cuellar, 131 Colo. 117, 279 P.2d 843 (1955)).\nIf we can give effect to the ordinary words used by the General Assembly, we must apply the statute\nas written. Use of the word \xe2\x80\x9cshall\xe2\x80\x9d implies a mandatory meaning. In re Adoption of T.K.L., 931 P.2d\n488 (Colo. App. 1996).\nThe plain language of \xc2\xa7 14-1-101 requires the trial court to grant an adult adoption when there is\nvalid service and the adoptee consents to such adoption. Both requirements were met here. There\nis no additional requirement that there be a minimum age differential between the adoptor and the\nadoptee. See In re Adoption of Elizabeth P.S., 134 Misc. 2d 144, 509 N.Y.S. 2d 746 (1986) (lack of\ndisparity in age not fatal to adoption proceeding). Nor is adoption precluded based upon the prior\nrelationship of the parties. See In re Trust Created by Belgard, supra; see also Berston v. Minnesota Department\nof Public Welfare, 296 Minn. 24, 206 N.W. 2d 28 (1973) (under statute allowing adoption of an adult\nby \xe2\x80\x9cany person,\xe2\x80\x9d son\xe2\x80\x99s petition to adopt mother granted even though admitted motive was to bring\nher within terms of trust established by father who had divorced mother).\nFinally, we are not aware of any public policy in Colorado that would be violated by permitting a\nperson to adopt his or her own adult sibling.\n167\n\n\x0cAccordingly, we conclude that pursuant to the mandatory language of \xc2\xa7 14-1-101, the court was\nrequired to grant the petition and enter a decree of adoption.\nThe judgment is therefore reversed, and the cause is remanded for entry of a decree of adoption.\n\nTinney v. Tinney, 799 A.2d 235 (R.I. 2002)\nBOURCIER, J.\nIn this case, the latest chapter in the bizarre saga of Belcourt Castle, a once majestic Newport\nmansion, we are called upon to determine whether Kevin Tinney, a/k/a Kevin Jacob Koellisch, is\nentitled pursuant to G.L.1956 \xc2\xa7 33-1-10 to share in the intestate distribution of his adoptive and\nnow deceased mother\'s personal estate. The case comes to us on an appeal from a Superior Court\nfinal judgment declaring that he is entitled to do so.\nFacts and Travel\nThe facts in this matter are undisputed and aptly summarized in our opinion in Tinney v. Tinney, 770\nA.2d 420 (R.I.2001). For purposes of this appeal, on October 11, 1990, Ruth E. Tinney, who was\nthen eighty-four years old, adopted the defendant Kevin, who was thirty-eight years old, in an adult\nadoption proceeding in Newport Probate Court. On December 18, 1995, Ruth died intestate. On\nJuly 6, 1999, Kevin filed a petition to probate Ruth\'s personal estate in the Newport Probate Court.\nIn his petition, he listed two heirs at law as sons of the decedent, himself and Ruth\'s biological son,\nDonald Tinney. Kevin claimed a one-half ownership interest in Ruth\'s personal estate pursuant to \xc2\xa7\n33-1-10. B. Mitchell Simpson was duly appointed and qualified as the administrator of Ruth\'s estate.\nThereafter, on May 1, 2000, the plaintiff Donald filed this action seeking a declaratory judgment that\nKevin, as an adopted adult, was not entitled to intestate inheritance. Kevin and the administrator of\nRuth\'s estate were named as party defendants.\nOn September 27, 2000, Donald filed a motion for summary judgment, and on October 20, 2000,\nKevin filed a cross-motion seeking summary judgment. The motions were heard on November 6,\n2000. Donald contended that G.L.1956 \xc2\xa7 15-7-16(a) gives only a minor child, not an adopted adult,\nthe right of intestate inheritance. He argued that it was significant that the Legislature used the term\n\xe2\x80\x9cchild\xe2\x80\x9d in enacting \xc2\xa7 15-7-16(a) as opposed to using the word \xe2\x80\x9cpersons\xe2\x80\x9d in describing potential\nadoptees as provided by \xc2\xa7 15-7-4(d). Donald claimed it was natural that the Legislature used the\nword \xe2\x80\x9cchild\xe2\x80\x9d instead of \xe2\x80\x9cpersons\xe2\x80\x9d because the primary purpose of the adoption statute was\nintended to \xe2\x80\x9cpromote the welfare of children, not adults, by securing to them the benefits of a home\nand parental care.\xe2\x80\x9d\nKevin, on the other hand, contended that the Legislature, in enacting our adoption statute, never\nintended to distinguish between children adopted during their minority and those adopted as adults.\nOn December 4, 2000, the Superior Court hearing justice denied Donald\'s motion for summary\njudgment and granted Kevin\'s cross-motion for summary judgment. The hearing justice concluded\nthat the Legislature\'s use of the word \xe2\x80\x9cchild\xe2\x80\x9d in \xc2\xa7 15-7-16 was not intended to restrict its meaning\nonly to a child under the age of majority, but \xe2\x80\x9cin fact means the son or daughter of a parent,\n168\n\n\x0cregardless of age.\xe2\x80\x9d An order and judgment granting summary judgment in favor of Kevin was\nentered on December 14, 2000, and Donald timely appealed.\nAnalysis\nWhether an adopted adult has the right to inherit under the laws of intestate succession from a\ndeceased adoptive parent is an issue of first impression in Rhode Island and requires an examination\nof the relevant statutes.\nSection 15-7-16(a) provides for inheritance by adopted children and states in relevant part:\n\xe2\x80\x9cA child lawfully adopted shall be deemed, for the purpose of inheritance by the child and\nhis or her descendants from the parents by adoption * * * the child of the parents by\nadoption the same as if he or she had been born to them in lawful wedlock.\xe2\x80\x9d\nDonald argues that \xc2\xa7 15-7-16(a) does not include adult adoptees because it specifically refers only to\na \xe2\x80\x9cchild.\xe2\x80\x9d By contrast, \xc2\xa7 15-7-4(d), which permits the adoption of adults, provides that \xe2\x80\x9c[p]etitions\nfor adoptions of persons eighteen (18) years or older shall be heard by the probate court of the city\nor town in which the petitioners live.\xe2\x80\x9d He maintains that had the Legislature intended to include\nadult adoptees as eligible for inheritance pursuant to \xc2\xa7 15-7-16(a), it would have described adoptees\nas \xe2\x80\x9cpersons\xe2\x80\x9d as it did in \xc2\xa7 15-7-4(d). Donald asserts that the Legislature, by not amending the\nstatute, did not intend to give an adopted adult the same rights as an adopted \xe2\x80\x9cchild.\xe2\x80\x9d\nKevin argues that an adopted adult has the same rights as an adopted minor child, and accordingly\nmaintains that the hearing justice correctly granted summary judgment.\n\xe2\x80\x9cIn construing a statute, this Court\'s primary \xe2\x80\x98task is to establish and effectuate the intent of the\nLegislature.\xe2\x80\x99\xe2\x80\x9d R & R Associates v. City of Providence Water Supply Board, 765 A.2d 432, 436 (R.I.2001)\n(quoting Cardarelli v. DET Board of Review, 674 A.2d 398, 400 (R.I.1996)). \xe2\x80\x9cThis intent is gleaned from\na careful examination of the \xe2\x80\x98language, nature and object of the statute.\xe2\x80\x99\xe2\x80\x9d Id. at 436 (quoting\nBrouillette v. DET Board of Review, 677 A.2d 1344, 1346 (R.I.1996)). This Court repeatedly has stated\nthat \xe2\x80\x9cwhen the language of a statute is clear and unambiguous, this Court must interpret the statute\nliterally and must give the words of the statute their plain and ordinary meanings.\xe2\x80\x9d Mottola v. Cirello,\n789 A.2d 421, 423 (R.I. 2002) (quoting Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223,\n1226 (R.I.1996)).\nAdoption was not recognized at common law, and our statutes permitting adoption \xe2\x80\x9ccreate[ ] a\nstatus and relationship unknown to the common law.\xe2\x80\x9d Batcheller-Durkee v. Batcheller, 39 R.I. 45, 49, 97\nA. 378, 379 (1916). This Court has held that adopted children \xe2\x80\x9care deemed to be heirs of their\nadoptive parents, as if they were their natural children.\xe2\x80\x9d In re Lisa Diane G., 537 A.2d 131, 132\n(R.I.1988) (citing In re Adoption of a Minor Child, 109 R.I. 443, 450, 287 A.2d 115, 118-19 (1972)). This\nCourt has also held that \xe2\x80\x9csuch * * * statutes as are intended to integrate adopted children into family\nunits and thus promote the public interest in the preservation of the family are to be liberally\nconstrued in favor of the adopted child.\xe2\x80\x9d Prince v. Nugent, 93 R.I. 149, 168, 172 A.2d 743, 754 (1961).\nUpon reviewing the statutory history of adoption in Rhode Island, it is clear that \xe2\x80\x9cchild\xe2\x80\x9d means the\nson or daughter of a parent, regardless of age. For example, the adoption statute of 1923 provided\nthat \xe2\x80\x9c[a]ny person may petition the municipal court or probate court for leave to adopt as his child\n169\n\n\x0cany person younger than himself\xe2\x80\x9d and allowed the same rights of inheritance for that \xe2\x80\x9cchild so\nadopted.\xe2\x80\x9d G.L.1923, ch. 288, \xc2\xa7\xc2\xa7 1, 6. More than twenty years later, in 1944, the Legislature\nestablished the Juvenile Court with jurisdiction \xe2\x80\x9c[c]oncerning adoption of children.\xe2\x80\x9d P.L.1944, ch.\n1441, \xc2\xa7 14. In doing so, the Legislature amended G.L. 1938, ch. 420 by stating: \xe2\x80\x9c1. In all cases\ninvolving persons under eighteen years of age, such term shall mean the juvenile court. 2. In all cases\ninvolving persons eighteen years of age or older, such term shall mean the probate court of the city\nor town in which the petitioner resides.\xe2\x80\x9d P.L.1944, ch. 1441, \xc2\xa7 36B. Thus, jurisdiction over the\nadoption of those under eighteen years of age was vested in the Juvenile Court, and the adoption of\nthose over eighteen years old was vested in the Probate Court. Significantly, the Legislature made no\ndistinction between the rights of those adopted as minors and those adopted over the age of\neighteen.\nWhen the Juvenile Court was abolished and replaced by the creation of our present Family Court,\nP.L.1961, ch. 73, \xc2\xa7 14, exclusive jurisdiction over adoption of children under the age of eighteen was\nvested in that Court, and the adoption of persons over eighteen remained in the exclusive\njurisdiction of the Probate Court. Throughout the years and various statutory changes since then,\nthe Legislature has never enacted any provision noting any distinction between the inheritance rights\ngranted to an adopted person, whether child or adult.\nWe conclude that the language of \xc2\xa7 15-7-16(a) is clear and unambiguous, and therefore we must give\nthe words of the statute their plain and ordinary meaning. It is clear that the Legislature intended the\nterm \xe2\x80\x9cchild\xe2\x80\x9d to mean son or daughter of a parent, regardless of age, and that there was no\ndistinction intended between the inheritance rights of a \xe2\x80\x9cchild\xe2\x80\x9d adopted as a minor and \xe2\x80\x9cpersons\xe2\x80\x9d\nadopted as adults.\nConclusion\nFor the reasons above stated, the plaintiff\'s appeal is denied and dismissed. The order granting\nsummary judgment in favor of the defendant is affirmed. The papers of this case are to be returned\nto the Superior Court.\nNotes and Questions\n1. From a public policy perspective, what are the pros and cons of permitting one adult to adopt\nanother adult? See Jackie Messier, The Inconsistent Inheritance Rights of Adult Adoptees and A Proposal For\nUniformity, 95 Marq. L. Rev. 1043 (Spring 2012).\n2. Why do you think that the legislature would permit adult adoptions?\n3. What may be some legitimate reasons why a person would want to adopt an adult? See Berston v.\nMinnesota Dept. of Public Welfare, 206 N.W.2d 28 (Minn. 1973).\n4. Which, if any, restrictions should be placed on a person seeking to adopt an adult?\n5. Some jurisdictions that permit adult adoptions have concluded that a person may not adopt his or\nher adult lover. Those jurisdictions fail to sanction those adult adoptions because of the sexual\nnature of the relationship. Courts often find that it is against public policy to permit the creation of a\n170\n\n\x0cparent-child relationship between persons who are engaged in a sexual relationship. See Matter of\nAdoption of Robert Paul P., 471 N.E.2d 424 (N.Y.2d 1984)(court held that a 57-year-old man could not\nadopt a 50-year-old man with whom he shared a homosexual relationship).\nRight to inherit through adoptive parents\n\nIn re Estate of Brittin, 664 N.E.2d 687 (Ill. 1996)\nGOLDENHERSH, J.\nRespondent, Mary Ann Buckman, natural daughter of decedent, Stephen Glenn Brittin, and\nadministrator of his estate, appeals from an order of the circuit court finding petitioners, Deborah J.\nRoeder, Linda Brittin, Denise Brittin, Stacie Brittin, and Laura Moore, the natural children of\ndecedent\'s adopted son, William Eugene, to be decedent\'s legal heirs and reopening decedent\'s\nestate.\nOn appeal, respondent contends the trial court erred in finding petitioners, for purposes of intestate\nsuccession, to be the legal heirs of decedent and in reopening decedent\'s estate. We affirm.\nThe facts are undisputed. The record reveals that when William Eugene was about three years of\nage, his mother, Estelle Willet, married the decedent, Stephen Glenn Brittin. From age three,\nStephen and Estelle raised William as their son. The couple had one natural child, Mary Ann\nBuckman, respondent herein. Estelle Willet Brittin died on July 28, 1975. Shortly thereafter, on\nOctober 20, 1976, Stephen adopted William in an adult adoption proceeding in St. Clair County.\nWilliam was 46 years old at the time of the adoption and had five children, petitioners herein. The\nadoption decree specifically provides that William was the child of Stephen Glenn Brittin \xe2\x80\x9cand for\nthe purposes of inheritance and all other legal incidents and consequences, shall be the same as if\nsaid respondent had been born to Stephen Glenn Brittin and Estelle Willet Brittin (now deceased) in\nlawful wedlock.\xe2\x80\x9d William died on May 17, 1979, predeceasing his adoptive father and leaving his five\nchildren as his descendants and heirs.\nOn February 8, 1993, Stephen died intestate leaving Mary, his natural daughter, and petitioners,\ndescendants of his adopted son, William, as his heirs. Decedent\'s intestate estate was opened on\nMarch 10, 1993. The court found respondent to be the sole heir and appointed her administrator of\nthe estate. The estate was closed on October 4, 1993, with the proceeds going to respondent.\nPetitioners were unaware that the administration of decedent\'s estate was underway without their\nparticipation until December 1993, when they learned that the estate had been closed.\nOn February 9, 1994, petitioners filed a petition to vacate the order of discharge and order finding\nheirship and to reopen the estate. Petitioners alleged in the petition that they are heirs of the\ndecedent and are entitled to share in decedent\'s estate as the children of decedent\'s adopted son.\nAfter a hearing, the trial court entered its order finding petitioners legal heirs of decedent and\nreopening the estate. Respondent filed a motion to reconsider, which was denied on January 30,\n1995. Respondent appeals.\n\n171\n\n\x0cI\nRespondent contends that petitioners are not descendants of the decedent and may not take, by\nrepresentation, their deceased father\'s share of the decedent\'s estate. Respondent acknowledges that\npursuant to section 2-4(a) of the Probate Act (755 ILCS 5/2-4(a) (West 1992)), petitioners\' father, as\nthe adopted child of the decedent, is a descendant of his adoptive parent, and had he not\npredeceased decedent, he would be entitled to half of decedent\'s estate. However, defendant argues\nthat the legislature, in using the term \xe2\x80\x9cadopted child\xe2\x80\x9d in section 2-4(a) of the Probate Act, intended\nto limit intestate succession to the descendants of a child adopted as a minor. Respondent further\nasserts that the legislature did not intend to include as descendants of an \xe2\x80\x9cadopted child\xe2\x80\x9d children\nborn to the adopted adult prior to that adult\'s adoption. According to respondent, because\npetitioners were already born at the time of decedent\'s adoption of their father, they are not the\ndescendants of an \xe2\x80\x9cadopted child\xe2\x80\x9d and therefore cannot take by representation their deceased\nfather\'s share of decedent\'s estate. We disagree.\nThe case before us is one of first impression and requires our consideration of the issue of whether\nthe natural children of an adult adoptee are descendants of the adopting parent for purposes of\ninheritance. In considering this issue, we must consider whether the legislature, in enacting the\nstatute granting an adopted child the status of a descendant of the adopting parent, intended to limit\nsuccession rights of the adoptee\'s children to the natural children of a child adopted as a minor and\nto exclude the natural children born to the adult adoptee prior to his adoption by the adopting\nparent.\nThe distribution of an intestate real and personal estate of a decedent whose spouse is predeceased\nbut who is survived by his descendants is governed by section 2-1(b) of the Probate Act, which\nprovides:\n\xe2\x80\x9c\xc2\xa7 2-1. Rules of descent and distribution. The intestate real and personal estate of a resident\ndecedent and the intestate real estate in this State of a nonresident decedent, after all just\nclaims against his estate are fully paid, descends and shall be distributed as follows:\n******\n(b) If there is no surviving spouse but a descendant of the decedent: the entire estate to the\ndecedent\'s descendants per stirpes.\xe2\x80\x9d 755 ILCS 5/2-1(b) (West 1992).\nWhere the decedent is survived by an adopted child, the adopted child may take a share of the\nintestate estate as a legal heir of the decedent pursuant to section 2-4(a) of the Probate Act, which\nprovides:\n\xe2\x80\x9c\xc2\xa7 2-4. Adopted child and adopting parent. (a) An adopted child is a descendant of the\nadopting parent for purposes of inheritance from the adopting parent and from the lineal\nand collateral kindred of the adopting parent. For such purposes, an adopted child also is a\ndescendant of both natural parents when the adopting parent is the spouse of a natural\nparent.\xe2\x80\x9d 755 ILCS 5/2-4(a) (West 1992).\nA cardinal rule of statutory construction \xe2\x80\x9cis to ascertain and give effect to the true intent and\nmeaning of the legislature.\xe2\x80\x9d Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 630\n172\n\n\x0cN.E.2d 820, 822 (Ill. 1994). To determine the intent of the legislature, a court should first consider\nthe statutory language, for its language best indicates the legislature\'s intent. Solich, 196 Ill.Dec. at\n657, 630 N.E.2d at 822. When the language of the statute is clear, the court must give it effect\n\xe2\x80\x9cwithout resorting to other aids for construction.\xe2\x80\x9d Solich, 630 N.E.2d at 822. \xe2\x80\x9cIn applying plain and\nunambiguous language, it is not necessary for a court to search for any subtle or not readily apparent\nintention of the legislature.\xe2\x80\x9d Di Foggio v. Retirement Board of the County Employees Annuity & Benefit Fund\nof Cook County, 620 N.E.2d 1070, 1073 (1993).\nThe Adoption Act (750 ILCS 50/1et seq. (West 1992)) provides for the adoption of an adult as well\nas the adoption of minor children. Section 3 of the Adoption Act sets forth the conditions under\nwhich an adult may be adopted, stating:\n\xe2\x80\x9c\xc2\xa7 3. Who may be adopted. A male or female * * * adult[ ] may be adopted * * * provided * *\n* that such adult has resided in the home of the persons intending to adopt him at any time\nfor more than 2 years continuously preceding the commencement of an adoption\nproceeding, or in the alternative that such persons are related to him within a degree set\nforth in the definition of a related child in Section 1 of this Act.\xe2\x80\x9d 750 ILCS 50/3 (West\n1992).\nA careful review of the Adoption Act reveals no statutory distinction between an adopted adult and\nan adopted minor with respect to the nature of the legal relationship created between the adoptee\nand the adopting parent, namely, a parent-child relationship. The adoptee, regardless of his age upon\nadoption, attains the status of a natural child of the adopting parents. In re M.M., 619 N.E.2d 702,\n708 (Ill. 1993). Likewise, the Adoption Act makes no reference to the rights of an adopted child with\nregard to his ability to inherit from his adopting parents. Therefore, for the proper resolution of the\nissue before us, we must examine section 2-4(a) of the Probate Act.\nRespondent maintains that section 2-4(a) of the Probate Act does not include adult adoptees\nbecause, had the legislature intended to include adopted adult children, it would have changed the\nword \xe2\x80\x9cchild\xe2\x80\x9d to \xe2\x80\x9cperson\xe2\x80\x9d so as to include all adopted persons. Respondent argues that the\nlegislature has amended section 2-4(a) several times and has not made this change and, therefore, the\nlegislature intended to limit inheritance to minor adopted children. We do not agree with this\ncontention.\n\xe2\x80\x9cWhere the terms of a statute are not defined by the legislature, courts will assume that they were\nintended to have their ordinary and popularly understood meanings, unless doing so would defeat\nthe perceived legislative intent.\xe2\x80\x9d People v. Hicks, 462 N.E.2d 473, 476 (Ill. 1984). Further, in\ndetermining the legislature\'s intent in using a particular term, \xe2\x80\x9ca reference to the subject matter and\nthe context will ordinarily disclose the sense in which the word is used.\xe2\x80\x9d Bartholow v. Davies, 276 Ill.\n505, 511, 114 N.E. 1017 (1916).\n\xe2\x80\x9cThere are * * * two meanings which may be given to the word \xe2\x80\x98child:\xe2\x80\x99 one an offspring or a\ndescendant, when a person is spoken of in relation to his parents; another, a person of immature\nyears. * * * The word \xe2\x80\x98child,\xe2\x80\x99 when used with reference to the parents, ordinarily has no reference to\nage, but to the relation. When used without reference to the parents, as indicating a particular\nindividual, it usually bears the meaning of a young person of immature years.\xe2\x80\x9d Bartholow, 276 Ill. at\n511, 114 N.E. at 1019. (NOTE: Bartholow was decided prior to statutory changes allowing the\nadoption of adults.)\n173\n\n\x0cConsidering the subject matter and context in which the word \xe2\x80\x9cchild\xe2\x80\x9d is used in section 2-4(a), the\nplain language of the statute indicates that the legislature intended to use the word \xe2\x80\x9cchild\xe2\x80\x9d in its\nrelational sense; referring to the parent-child relationship between the adoptee and the adopting\nparent. The word \xe2\x80\x9cchild,\xe2\x80\x9d as used here, cannot be interpreted fairly as meaning a minor, in light of\nsection 3 of the Adoption Act which permits adult adoptions. Moreover, there is nothing in section\n2-4(a) indicating a distinction between the adoptee\'s status as an adult or a minor at the time of\nadoption with regard to the adoptee\'s classification as a descendant of the adopting parent. The only\nqualification set forth in the statute is that the adoptee be legally adopted. Nothing more is required.\nAccordingly, petitioner\'s deceased father is an adopted child of the decedent and, as such, obtained\nthe right of succession as decedent\'s legal heir.\nIII\nRespondent next asserts that the children of an adopted adult who were born before the adult\'s\nadoption are not the legal heirs of the decedent because they are not the children of an adopted\nadult. Respondent argues, therefore, that petitioners, as already-born children at the time of their\nfather\'s adoption, cannot take by representation their predeceased father\'s share of decedent\'s estate.\nThis contention is not persuasive.\nAs discussed above, section 2-4(a) deems all adopted children to be descendants of the adopting\nparent. This provision places the adopted child and the natural child in equivalent positions with\nrespect to the child\'s capacity to inherit from an intestate parent. Similarly, the act of adoption itself\naccords the adoptee the status of a natural child of the adopting parent. In re M.M., 156 Ill.2d at 62,\n189 Ill.Dec. at 7, 619 N.E.2d at 708. As with natural children, the children of the adoptee, by virtue\nof the adoption, become the grandchildren of the adopting parent, thereby creating a grandparentgrandchild relationship.\nBecause section 2-4(a) deems an adopted child the descendant of the adopting parent, it logically\nfollows that, for purposes of inheritance, the children of the adopted adult are also descendants and\ncan take as grandchildren of the decedent. Accordingly, if the adopted child predeceases the\nadopting parent, leaving children, as is the case here, those children, as grandchildren of the\nadopting parent, are entitled to represent their deceased parent and to receive from the adopting\nparent\'s estate the share to which the adopted adult child would have been entitled to receive had he\nsurvived the adopting parent.\nWe believe this to be the correct reading of section 2-4(a) since section 2-4(a) does not impose any\nrestrictions or conditions on the ability of the natural children of a predeceased adopted child to\ninherit from the estate of the adopting parent. Nor does the provision either expressly or impliedly\nstate that the adopted child\'s children must be born subsequent to the adoption in order to be legal\nheirs of the adopting parent. Because \xe2\x80\x9cthe plain meaning of the language used by the legislature is\nthe safest guide in constructing any [statute],\xe2\x80\x9d the court cannot inject provisions not expressly\nincluded or fairly implied by the statute. Munroe v. Brower Realty & Management Co., 565 N.E.2d 32, 38\n(Ill. 1990). Further, \xe2\x80\x9cthe words of a statute must be read in light of the purposes to be served, and\nthose words must be read to reach a common-sense result.\xe2\x80\x9d Munroe, 565 N.E.2d at 38. Our reading\nof section 2-4(a) gives effect to the legislative policy of according adopted children a status of\ninheritance equivalent to that of natural children. With this legislative purpose in mind, we can read\nsection 2-4(a) in no other way but as including, as descendants of the decedent, the natural children\n174\n\n\x0cof an adopted adult. Accordingly, we find that the trial court did not err in finding petitioners to be\nthe legal heirs of the decedent. As such, petitioners are entitled to represent their deceased parent,\nthe adopted child of the decedent, and to receive the adopted child\'s per stirpes share of decedent\'s\nestate.\nFor the foregoing reasons, the judgment of the circuit court of Madison County is affirmed.\nAffirmed.\n\nIn re Ellison Grandchildren Trust, 261 S.W.3d 111 (Tex. 2008)\nANGELINI, J.\nAt issue in this appeal is whether, in creating an inter vivos, irrevocable trust for the \xe2\x80\x9cdescendants\xe2\x80\x9d\nof his children, Ray Ellison Sr. intended to include, as beneficiaries, his son\xe2\x80\x99s adopted children, who\nwere not adopted until they were adults. Because we conclude that Ray Ellison Sr. did not intend to\ninclude persons adopted as adults by his son, we affirm the summary judgment granted by the trial\ncourt.\nBackground\nOn March 9, 1982, Ray Ellison Sr. created an inter vivos, irrevocable trust called \xe2\x80\x9cthe Ray Ellison\nGrandchildren Trust.\xe2\x80\x9d At the time the Trust was created, Ray Ellison Sr. had two adult children:\nBonnie Ellison (then age 36) and Ray Ellison Jr. (then age 40). Bonnie Ellison had one daughter,\nTracy Egan (now Tracy Egan Calloway) (then age 11). Ray Ellison Jr. had two daughters: Arleene\nEllison (then age 18) and Darleene Ellison (then age 20).\nThe pertinent language of the Trust provides the following:\nAt the time of executing this trust instrument, the beneficiaries are well provided for by their\nparents. It is the desire of the Grantor that the income of this trust be accumulated and that\nthe properties from time to time put into the trust shall be invested\xe2\x80\xa6 Any distributions for\nbeneficiaries of this trust prior to the termination of the trust shall be solely in the discretion\nof the Trustees. However, the Grantor realizes that there may be circumstances arising in\nthe future which would make it desirable or advisable on the part of the Trustees to make\ndistributions from this trust prior to the time it terminates. Therefore, the Trustees are\nauthorized to pay to or for the benefit of the descendants of BONNIE JEAN EGAN and the\ndescendants of RAY ELLISON JR. (the descendants living at this time are TRACY EGAN,\nDARLENE ELLISON AND ARLENE ELLISON) out of income, and if income is\ninsufficient, out of the principal of this trust, from time to time such sums as are reasonably\nneeded for their health, including medical, dental, hospital and nursing expenses and\nexpenses of invalidism, and such sums as are reasonably needed for their maintenance and\nsupport. There shall be no requirement that the same amount be paid for each of such\npersons. In determining the amount to be paid to or for the benefit of each of such persons,\nthe Trustees shall take into consideration such other income or means of support known to\nthe Trustees that each of them is entitled to receive\xe2\x80\xa6\n\n175\n\n\x0cThis trust shall terminate upon the 31st day of December, in the year 2020, and upon\ntermination, the funds and properties remaining in the trust after paying the expenses of the\ntrust shall be distributed as follows:\nA. FIFTY PERCENT (50%) to the descendants of BONNIE JEAN EGAN, per\nstirpes, and if there be none, to the descendants of RAY ELLISON, JR., per stirpes.\nB. FIFTY PERCENT (50%) to the descendants of RAY ELLISON, JR., per stirpes,\nand if there be none, to the descendants of BONNIE JEAN EGAN, per stirpes.\nIn the event the above named persons are all deceased and none of them have left living\ndescendants, the funds and properties remaining in the trust shall be distributed to one or\nmore charitable organizations in which contributions are then deductible under section\n642(c) and 2055(e) of the Internal Revenue Code of 1954 in such shares as the Trustees may\ndesignate. (emphasis added).\nIn 1989, Ray Ellison Jr. divorced his first wife, to whom he had been married for thirty-two years.\nIn 1995, he remarried.\nIn 1998, sixteen years after the Trust was created, Ray Ellison Jr.\xe2\x80\x99s father, Ray Ellison Sr., was found\nto be incapacitated by a probate court in Bexar County. He died on October 16, 2005. Ray Ellison\nJr.\xe2\x80\x99s sister, Bonnie Ellison, was designated by the probate court as Guardian of Ray Ellison Sr.\xe2\x80\x99s\nPerson, and Frost National Bank was appointed Guardian of his Estate.\nIn 2003, twenty-one years after the Trust was created, Ray Ellison Jr. adopted the adult children of\nhis second wife: Aaron Lindner (then age 39), Jeffrey Lindner (then age 37), and Marc Lindner (then\nage 36) (\xe2\x80\x9cthe Lindners\xe2\x80\x9d). Immediately after their adoption, the Lindners moved for an accounting\nof the Trust. The Trustees, however, refused to provide an accounting and filed a declaratory\njudgment action requesting that the probate court \xe2\x80\x9cdetermine whether the Lindners are beneficiaries\nof the Trust and therefore entitled to an accounting.\xe2\x80\x9d In response, the Lindners filed an answer and\ncounterclaim for declaratory judgment, requesting that the court declare them beneficiaries of the\nTrust.\nDarleene and Arleene Ellison then joined the lawsuit and filed an answer to the Trustee\xe2\x80\x99s original\npetition for declaratory judgment and an answer to the Lindners\xe2\x80\x99 counterclaim for declaratory\njudgment. They also filed their own original counterclaim for declaratory judgment. They alleged\nthat their father\xe2\x80\x99s adoption of the Lindners was a \xe2\x80\x9csham designed by\xe2\x80\x9d their father and the Lindners\nin an attempt to give the Lindners standing to make claims against the Trust, based on their\ncontention that they are now \xe2\x80\x9cdescendants\xe2\x80\x9d of their father. They also alleged that their grandfather\ndid not intend for the term \xe2\x80\x9cdescendants\xe2\x80\x9d to include any person adopted as an adult when he\nexecuted the Trust on March 9, 1982. Therefore, they requested the trial court declare that the term\n\xe2\x80\x9cdescendant\xe2\x80\x9d as used in the Trust does not include those persons adopted as an adult and,\nspecifically, does not include the Lindners. In their second amended answer, Arleen and Darleene\nEllison also pled affirmative defenses. They alleged that the Lindners are \xe2\x80\x9cequitably estopped from\nclaiming to be beneficiaries of the Trust as a result of their participation in and/or attempt to benefit\nfrom the wrongful use of the adult adoption statute to divert Trust assets to individuals who would\notherwise have no colorable claim or right to those assets.\xe2\x80\x9d They alleged that the Lindners did not\ncome to the court with \xe2\x80\x9cclean hands\xe2\x80\x9d and that their \xe2\x80\x9cclaims to be beneficiaries of the Trust are\n176\n\n\x0cbarred because it is contrary to public policy of Texas for persons to use the adult adoption statutes\nto divert Trust assets to individuals who would otherwise have no colorable claim or right to those\nassets.\xe2\x80\x9d\nTracy Egan Calloway also joined the litigation and filed an answer to the original petition for\ndeclaratory judgment and answer to the Lindners\xe2\x80\x99 counterclaim for declaratory judgment, bringing\nthe affirmative defenses of fraud, constructive fraud, illegality, and estoppel as well as the equitable\ndefense of unclean hands.\nThe Lindners then moved for partial summary judgment, arguing that they are beneficiaries of the\nTrust as a matter of law, Arleene and Darleene Ellison responded by filing a cross-motion for partial\nsummary judgment, arguing that the Lindners are not beneficiaries of the Trust as a matter of law.\nThe trial court denied the Lindners\' motion and granted Arleene and Darleene Ellisons\' motion. In\nits order, the trial court determined as a matter of law the following:\n(1) the particular language in the March 9, 1982, Ray Ellison Grandchildren Trust [that]\nidentifies or refers to the Trust beneficiaries as \xe2\x80\x9cdescendants of BONNIE JEAN EGAN\xe2\x80\x9d\nand \xe2\x80\x9cthe descendants of RAY ELLISON JR.\xe2\x80\x9d does not include any person whom Bonnie\nJean Egan or Ray Ellison Jr. has adopted, or may in the future adopt, if such adopted person\nwas or is an adult, over the age of majority under Texas law, at the time of said adoption;\n(2) such trust language specifically does not include Aaron Lee Lindner, Jeffrey Scott\nLindner, and Marc Tecelle Lindner (\xe2\x80\x9cthe Lindners\xe2\x80\x9d); and\n(3) the Lindners are not Trust beneficiaries and are not entitled to an accounting pursuant to\nTEXAS TRUST CODE \xc2\xa7\xc2\xa7 113.151, 113.152.\nAlthough the trial court denied the Lindners\' motion for partial summary judgment, it did grant their\nmotion to exclude certain summary judgment evidence submitted by Darleene and Arleene Ellison.\nSpecifically, the trial court excluded Ronald Habitzreiter\'s affidavit and any extrinsic evidence of the\nintent of Ray Ellison Sr. when executing the Trust.\nAlso in its order, the trial court noted that the only remaining issues were those related to attorneys\'\nfees, expenses, and costs. The Trustees, Darleene and Arleene Ellison, Tracy Egan Calloway, and the\nLindners all moved for attorneys\' fees, expenses, and costs. In its final judgment, the trial court\ngranted all these motions and ordered the parties\' attorneys\' fees to be paid from the Trust.\nThe Lindners have appealed the trial court\'s determination that they are not beneficiaries of the\nTrust. The Trustees have appealed the trial court\'s award of attorneys\' fees, costs, and expenses to\nthe Lindners. And, Tracy Egan Calloway brings a cross-issue, arguing that in the event we reverse\nthe trial court\'s order, we should not reverse and render judgment in favor of the Lindners because\nthey did not negate her affirmative defenses of fraud, constructive fraud, illegality, and estoppel as\nwell as the equitable defense of unclean hands.\nDeclaratory Judgment/Summary Judgment\n\n177\n\n\x0cRules of Construction\nThe same rules of construction apply to both wills and trusts. See Eckels, 111 S.W. 3d at 694; Hurley,\n98 S.W. 3d at 310. In interpreting a will or a trust, we ascertain the intent of the testator or grantor.\nSee Eckels, 111 S.W. 3d at 694; Hurley, 98 S.W. 3d at 310. We do so from the language used within\nthe four corners of the instrument. Eckels, 111 S.W.3d at 694; see Shriner\'s Hosp. v. Stahl, 610 S.W.2d\n147, 151 (Tex.1980) (applying four-corners rule to construe a will). If this language is unambiguous\nand expresses the intent of the grantor, we need not construe the trust instrument because \xe2\x80\x9cit speaks\nfor itself.\xe2\x80\x9d Eckels, 111 S.W.3d at 694; Hurley, 98 S.W.3d at 310; see Frost Nat\'l Bank v. Newton, 554\nS.W.2d 149, 153 (Tex.1977) (\xe2\x80\x9c \xe2\x80\x98No speculation or conjecture regarding the intent of the testatrix is\npermissible where, as here, the will is unambiguous, and we must construe the will based on the\nexpress language used therein.\xe2\x80\x99 \xe2\x80\x9d). Thus, we do not focus on what the grantor intended to write but\nthe meaning of the words he actually used. San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639\n(Tex.2000). That is, we must not redraft a trust instrument to vary or add provisions \xe2\x80\x9cunder the\nguise of construction of the language\xe2\x80\x9d of the trust to reach a presumed intent. Id.\nIn determining the grantor\'s intent from the four corners of the trust instrument, we carefully\nexamine the words used and, if unambiguous, do not go beyond specific terms in search of the\ngrantor\'s intent. Id. Thus, when the language of a trust instrument is unambiguous, extrinsic\nevidence may not be introduced to show that the grantor intended something outside of the words\nused. Id. And, when the intent of the grantor is unambiguous, his intent controls even if it conflicts\nwith applicable statutes. See Vaughn v. Vaughn, 161 Tex. 104, 337 S.W.2d 793, 796 (1960) (explaining\nthat statutes \xe2\x80\x9cmay be considered as an aid to the construction of a will\xe2\x80\x9d but \xe2\x80\x9ccannot control or\ndefeat a will\'s true construction\xe2\x80\x9d).\nIf, on the other hand, the meaning of the instrument is uncertain or \xe2\x80\x9creasonably susceptible to more\nthan one meaning,\xe2\x80\x9d the instrument is ambiguous. Eckels, 111 S.W.3d at 694 (quoting Myrick v. Moody,\n802 S.W.2d 735, 738 (Tex.App.-Houston [14th Dist.] 1990, writ denied)). Ambiguity can be either\npatent or latent. Eckels, 111 S.W.3d at 695; see In re Estate of Brown, 922 S.W.2d 605, 608-09\n(Tex.App.-Texarkana 1996, no writ). A patent ambiguity arises on the reading of the trust from the\nwords themselves. Eckels, 111 S.W.3d at 695; In re Brown, 922 S.W.2d at 608. A latent ambiguity\nexists when the trust appears to convey a sensible meaning on its face but cannot be carried out\nwithout further clarification. Eckels, 111 S.W.3d at 695; see Nat\'l Union Fire Ins. Co. v. CBI Indus., Inc.,\n907 S.W.2d 517, 520 n. 4 (Tex.1995) (explaining latent ambiguity would exist if a contract called for\ngoods to be delivered to \xe2\x80\x9cthe green house on Pecan Street,\xe2\x80\x9d but there were in fact two green houses\non Pecan Street).\nWhere there is latent or patent ambiguity, a court may admit extrinsic evidence to show the grantor\'s\nintent. Eckels, 111 S.W.3d at 696; In re Estate of Cohorn, 622 S.W.2d 486, 487-88 (Tex.App.-Eastland\n1981, writ ref\'d n.r.e.); see Stewart v. Selder, 473 S.W.2d 3, 7 (Tex.1971) (\xe2\x80\x9c[W]e have stated on several\noccasions that where the intention of the testator is not clearly expressed by the language of the will,\nit may be found by looking to the provisions of the instrument as a whole and to the circumstances\nsurrounding its execution.\xe2\x80\x9d). Although the Texas Supreme Court has, in the past, stated that a\n\xe2\x80\x9ccourt may always receive and consider evidence concerning the situation of the [grantor], the\ncircumstances existing when the [trust] was executed, and other material facts that will enable the\ncourt to place itself in the [grantor]\'s position at the time,\xe2\x80\x9d Lang, 35 S.W.3d at 640 (quoting Stewart v.\nSelder, 473 S.W.2d 3, 7 (Tex.1971)), the supreme court explained in 2000 that \xe2\x80\x9cthis broad approach\nto the admissibility of extrinsic evidence applies only when a term is open to more than one\n178\n\n\x0cconstruction.\xe2\x80\x9d Lang, 35 S.W.3d at 639 (citing Lehman v. Corpus Christi Nat\'l Bank, 668 S.W.2d 687,\n689 (Tex.1984)). Thus, extrinsic evidence may only be considered when the terms of the instrument\nare ambiguous.\nFinally, in interpreting the provisions of a trust instrument, if possible, we must construe the\ninstrument to give effect to all provisions so that no provision is rendered meaningless. Eckels, 111\nS.W.3d at 694. And, in interpreting the trust, we look to the law as it existed at the time the trust was\nexecuted. Hagaman v. Morgan, 886 S.W.2d 398, 400 (Tex.App.-Dallas 1994, writ denied).\nDetermining the Grantor\'s Intent\nUsing the above rules of construction, we must determine what Ray Ellison Sr. meant in 1982 when\nhe stated that he wanted the Trust to benefit the descendants of his son, Ray Ellison Jr., and his\ndaughter, Bonnie Egan.\nIn the Trust, Ray Ellison Sr. identified the descendants of his son and daughter parenthetically: \xe2\x80\x9cthe\ndescendants living at this time are TRACY EGAN, DARLENE ELLISON AND ARLENE\nELLISON.\xe2\x80\x9d Further, Ray Ellison Sr. stated in the Trust that at the time the Trust was executed \xe2\x80\x9cthe\nbeneficiaries are well provided for by their parents.\xe2\x80\x9d Arleene and Darleene Ellison, and Frost Bank,\npoint to these two phrases used by Ellison Sr. in the Trust and argue that we can determine Ray\nEllison Sr.\'s intent from the four corners of the trust instrument because these phrases show Ray\nEllison Sr.\'s unambiguous intent.\nAlthough the Lindners disagree that the above two phrases indicate Ray Ellison Sr.\'s unambiguous\nintent, they also argue that the words used in the Trust are unambiguous. According to the Lindners,\n\xe2\x80\x9cdescendants\xe2\x80\x9d is an unambiguous term with a specific legal meaning that we can determine by using\nfamily law statutes in existence at the time the Trust was created as a constructive aid.\nIn contrast, Tracy Egan Calloway argues that \xe2\x80\x9cdescendants\xe2\x80\x9d is an ambiguous term and that the trial\ncourt erred in not allowing her to admit extrinsic evidence of Ray Ellison Sr.\'s intent.\nAs explained below, we believe that \xe2\x80\x9cdescendants\xe2\x80\x9d is not an ambiguous term and that the family\nstatutes in existence in 1982 should be used as a constructive aid of Ray Ellison Sr.\'s intent.\n1. Does Ray Ellison Sr.\'s use of the phrase \xe2\x80\x9cdescendants living at this time\xe2\x80\x9d indicate his clear intent\nto exclude adult adoptees?\nArleene and Darleene Ellison argue that Ellison Sr.\'s intent is clear from the four corners of the trust\ninstrument. According to Arleene and Darleene, by parenthetically identifying Tracy Egan, Darleene\nEllison, and Arleene Ellison as descendants living at this time, Ellison Sr. indicated that at the time of the\ncreation of the Trust, the only descendants living were Tracy Egan, Darleene Ellison, and Arleene\nEllison. Thus, they argue that because the Lindners were living at the time the Trust was created,\nEllison Sr. could not possibly have intended to include them. If Ellison Sr. had wanted the Trust to\nbenefit a class of persons like the Lindners (those being adopted as adults), he would not have\nspecified that the only beneficiaries living were Tracy, Darleene, and Arleene.\nFrost National Bank, Independent Executor of the Estate of Ray Ellison Sr., agrees with Arleene\nand Darleene\'s argument. Frost Bank also emphasizes that Ellison Sr. specifically named the persons\n179\n\n\x0cwhom he considered to be \xe2\x80\x9cdescendants\xe2\x80\x9d and who were living at the time the Trust was executed in\n1982. Frost Bank points out that Ellison did not use language like \xe2\x80\x9cthe descendants identifiable at\nthis time\xe2\x80\x9d or \xe2\x80\x9cthe descendants ascertainable at this time.\xe2\x80\x9d Instead, he specifically stated \xe2\x80\x9cthe\ndescendants living at this time.\xe2\x80\x9d According to Frost Bank, this \xe2\x80\x9clanguage demonstrates that Mr.\nEllison contemplated that the only possible additional descendants would be persons born after\n1982. This, in itself, excludes the Lindners, each of whom was born well before 1982.\xe2\x80\x9d\nThe Lindners respond by arguing that they are not excluded by the language \xe2\x80\x9cdescendants living at\nthis time\xe2\x80\x9d because although they were living at the time, they were not descendants at the time.\nWe believe that Ray Ellison Sr.\'s parenthetical identification of Tracy, Darleene, and Arleene as the\nonly descendants living at this time was for identification purposes and does not indicate his clear\nintent to exclude adult adoptees.\n2. Does Ray Ellison Sr.\'s use of the phrase \xe2\x80\x9c[a]t the time of executing this trust instrument, the\nbeneficiaries are well provided for by their parents,\xe2\x80\x9d indicate his intent to exclude adult adoptees?\nArleene and Darleene Ellison also argue that by stating that \xe2\x80\x9c[a]t the time of executing this trust\ninstrument, the beneficiaries are well provided for by their parents,\xe2\x80\x9d Ellison Sr. indicated his intent to benefit\nhis grandchildren, not other persons who had been raised as someone else\'s grandchildren for\ndecades after the Trust was created. They emphasize that the language \xe2\x80\x9cthe beneficiaries are well\nprovided for by their parents,\xe2\x80\x9d indicates Ellison Sr.\'s intent to benefit only those persons then in a\nparent-child relationship with, and entitled to receive parental support from, Bonnie Egan and Ray\nEllison Jr. They argue that the Lindners were not such people.\nFrost Bank also emphasizes that the statement regarding the beneficiaries, at the time of the Trust\'s\nexecution, being \xe2\x80\x9cwell provided for by their parents\xe2\x80\x9d demonstrates Ellison\'s intent that the trust\nbeneficiaries be only the named biological grandchildren and later-born biological grandchildren.\nAccording to Frost Bank, had Ellison \xe2\x80\x9cintended to include persons born before 1982 but not\nadopted until afterward, he [would] not have opined on whether those persons were, on March 9,\n1982, \xe2\x80\x98well provided for by their parents.\xe2\x80\x99 \xe2\x80\x9d\nWe disagree. At the time the Trust was created, Tracy, Arleene, and Darleene were the only\nbeneficiaries to the Trust. Thus, the sentence, \xe2\x80\x9c[a]t the time of executing this trust instrument, the\nbeneficiaries are well provided for by their parents,\xe2\x80\x9d refers only to Tracy, Arleene, and Darleene.\n3. Is the term \xe2\x80\x9cdescendants\xe2\x80\x9d ambiguous so that extrinsic evidence should have been admitted?\nTracy Egan Calloway argues that \xe2\x80\x9cdescendants\xe2\x80\x9d is not an unambiguous term that the trial court\ncould construe from the instrument itself and the law but instead is ambiguous. According to\nCalloway, \xe2\x80\x9cdescendants\xe2\x80\x9d as used by Ellison Sr. could have had \xe2\x80\x9cat least four possible meanings\xe2\x80\x9d:\n1. Ellison Sr. could have intended the term \xe2\x80\x9cdescendants\xe2\x80\x9d to include only his children\'s and\ngrandchildren\'s biological offspring;\n2. Ellison Sr. could have intended \xe2\x80\x9cdescendants\xe2\x80\x9d to have a more expansive meaning so as to include,\nin addition to his biological offspring, individuals who were adopted as minors by his biological\nchildren or grandchildren, while excluding individuals who were adopted as adults;\n180\n\n\x0c3. Ellison Sr. could have intended \xe2\x80\x9cdescendants\xe2\x80\x9d to have an even more expansive meaning so as to\ninclude not only individuals who were adopted as minors but also individuals who were adopted as\nadults as long as they enjoyed an in loco parentis relationship with his biological children and\ngrandchildren while the adoptees were minors-that is, he could have intended that adult adoptees\nwho actually lived in the homes of his biological children or grandchildren for a period of time\nwhile they were minors and who later were adopted as adults be considered beneficiaries, but not\nadult adoptees who never enjoyed an in loco parentis relationship; and\n4. Ellison Sr. could have intended \xe2\x80\x9cdescendants\xe2\x80\x9d to include in addition to biological offspring any\nadoptee, minor or adult, regardless whether the adoptee ever actually enjoyed an in loco parentis\nrelationship with his biological children or grandchildren.\nThus, because the term \xe2\x80\x9cdescendants\xe2\x80\x9d is ambiguous, Calloway argues that the trial court should have\nconsidered extrinsic evidence of what Ellison Sr. intended by his use of \xe2\x80\x9cdescendants.\xe2\x80\x9d\nIn San Antonio Area Found. v. Lang, 35 S.W.3d 636, 640 (Tex.2000), the supreme court considered\nwhen extrinsic evidence may be admitted to explain a term. First, the court emphasized that when a\ntestatrix\'s intent is apparent on the face of the will, extrinsic evidence is not admissible to show a\ncontrary meaning. Id. It explained that extrinsic evidence is admissible only when the testatrix\'s will\nuses a word that is susceptible to more than one construction. Id. at 641. Thus, the court explained\nthat in Stewart v. Selder, 473 S.W.2d 3, 7 (Tex.1971), extrinsic evidence was admissible to explain the\ntestatrix\'s intent in using the term \xe2\x80\x9ccash,\xe2\x80\x9d because \xe2\x80\x9ccash\xe2\x80\x9d \xe2\x80\x9ccould refer to either dollar bills or other\nforms of currency, like checks or securities.\xe2\x80\x9d Lang, 35 S.W.3d at 641. However, the testatrix in the\ncase before it had used the term \xe2\x80\x9creal property.\xe2\x80\x9d Id. The court explained that extrinsic evidence was\nnot admissible to explain the testatrix\'s intent in using the term \xe2\x80\x9creal property\xe2\x80\x9d because real property\nhas a settled legal meaning. Id. That is, \xe2\x80\x9creal property\xe2\x80\x9d is \xe2\x80\x9ca term with a specific meaning ascribed to\nit in law.\xe2\x80\x9d Id. Thus, the testatrix\'s use of the term in her will was unambiguous and the trial court did\nnot err in excluding \xe2\x80\x9cany sort of background, historical extrinsic evidence to explain\xe2\x80\x9d the testatrix\'s\nintent in using the term. Id.\nLike \xe2\x80\x9creal property,\xe2\x80\x9d we believe that \xe2\x80\x9cdescendants\xe2\x80\x9d is a term with a specific meaning ascribed to it in\nlaw: \xe2\x80\x9cone who follows in lineage, in direct (not collateral) descent from a person.\xe2\x80\x9d BLACK\'S LAW\nDICTIONARY 476 (8th ed. 2004). Examples of descendants are \xe2\x80\x9cchildren and grandchildren.\xe2\x80\x9d Id.\nThus, the term \xe2\x80\x9cdescendants\xe2\x80\x9d is not ambiguous. A descendant of Ray Ellison Jr. would be any\nperson who follows in lineage, in direct descent from him. An example of such a \xe2\x80\x9cdescendant\xe2\x80\x9d\nwould be his \xe2\x80\x9cchild.\xe2\x80\x9d Thus, the issue becomes whether one adopted as an adult is considered a\n\xe2\x80\x9cchild\xe2\x80\x9d of his adopted father with respect to third persons as the law existed in 1982 when the Trust\nwas created.\n4. Should 1982 Family Law statutes be used as a constructive aid of Ray Ellison Sr.\'s intent?\nIn support of their argument that they are included within Ellison Sr.\'s use of the term\n\xe2\x80\x9cdescendants,\xe2\x80\x9d the Lindners emphasize that as the law existed in 1982, when the Trust was created,\ndescendants included those adopted as adults. According to the Lindners, pursuant to 1982 Texas\nFamily Law statutes, a person adopted as an adult is a \xe2\x80\x9cchild\xe2\x80\x9d and thus a descendant of his adopted\nfather. In response to the Lindners\' argument, Arleene and Darleene Ellison argue that we should\nnot consider 1982 Family Law statutes because a statute cannot contradict Ellison Sr.\'s unambiguous\nintent.\n181\n\n\x0cIt is true that the grantor\'s intent controls and that a statute cannot control or defeat a trust\'s \xe2\x80\x9ctrue\nconstruction.\xe2\x80\x9d Vaughn, 337 S.W.2d at 796. Thus, the question is not whether persons adopted as\nadults should be beneficiaries of the Trust pursuant to a statute, but whom Ellison Sr. intended to\ndesignate as beneficiaries when he created the Trust. However, while a statute cannot defeat the\nclear intent of the grantor, a statute \xe2\x80\x9cmay be considered as an aid to the construction\xe2\x80\x9d of a trust. Id.\nBy interpreting the state of law with regard to \xe2\x80\x9cdescendants\xe2\x80\x9d in 1982, we would not be stating that\nthe law required persons adopted as adults to be beneficiaries of the Trust. Instead, we would be\nrecognizing that Ellison Sr. decided to use the specific word \xe2\x80\x9cdescendants\xe2\x80\x9d to define his\nbeneficiaries and that he did not define \xe2\x80\x9cdescendants\xe2\x80\x9d in the trust instrument itself. Thus, we\npresume that Ellison Sr., by using the word \xe2\x80\x9cdescendants,\xe2\x80\x9d knew what the law in 1982 considered\n\xe2\x80\x9cdescendants\xe2\x80\x9d to encompass. See San Antonio Area Found., 35 S.W.3d at 640.\n5. With respect to adopted children, what did \xe2\x80\x9cdescendants\xe2\x80\x9d mean in 1982?\na. Progression of Adoption Laws-1931 Statute\nBefore 1931, adopted persons had no right of inheritance except from the estate of the party\nadopting him. Armstrong v. Hixon, 206 S.W.3d 175, 180 (Tex.App.-Corpus Christi 2006, pet. denied);\nFletcher v. Persall, 75 S.W.2d 170, 170 (Tex.Civ.App.-Austin 1934, writ ref\'d). In 1931, the Legislature\nenacted the following statute (formerly Article 46a of the Revised Civil Statutes), entitled \xe2\x80\x9cAdoption\nof Minor Children,\xe2\x80\x9d providing for the adoption of minor children:\nWhen a child is adopted in accordance with the provisions of this Article, all legal relationships and\nall rights and duties between such child and its natural parents shall cease and terminate, provided\nhowever, that nothing herein shall prevent such adopted child from inheriting from its natural\nparent; all adopted children shall inherit from the adopted as well as its natural parents. Said child\nshall thereafter be deemed and held to be, for every purpose, the child of its parent or parents by adoption as\nfully as though born of them in lawful wedlock. Said child shall be entitled to proper education, support,\nmaintenance, nurture and care from said parent or parents by adoption, and shall inherit from said\nparent or parents by adoption, and as the child of said parents or parents by adoption, as fully as\nthough born to them in lawful wedlock; subject, however, to the provisions of this Act. Said parent\nor parents by adoption shall be entitled to the services, wages, control, custody and company of said\nadopted child, and shall, as such adopting parent or parents, inherit from and as the parent or\nparents of said adopted child as fully as though the child had been born to them in lawful wedlock;\nprovided, however, that upon the death of such adopted child, while unmarried and without issue of\nits body, all its property, of whatsoever kind and nature, shall pass and descend to the adopting\nparent or parents, if living, but if such adopting parent or parents be not living, then all such\nproperty shall pass and descend to the next of kin of said adopting parent or parents according to\nthe then law of descent and distribution, and not to the next of kin of such adopted child; and\nprovided that.... Acts of 1931, 42nd Leg., p. 300, ch. 177, \xc2\xa7 9 (emphasis added).\nThis 1931 statute \xe2\x80\x9cdid not have the sweeping effect suggested by the language quoted above.\xe2\x80\x9d Cutrer\nv. Cutrer, 162 Tex. 166, 345 S.W.2d 513, 516 (1961). \xe2\x80\x9c[T]he legal relationship established by the 1931\nAct was effective only \xe2\x80\x98as between the adopting parent and the adopted child.\xe2\x80\x99 \xe2\x80\x9d Id. Thus, \xe2\x80\x9c[w]here\nthe adopting parent or his estate was concerned, a child adopted under the provisions of the statute\nhad all of the rights of a natural child.\xe2\x80\x9d Id. However, \xe2\x80\x9cas to all persons other than the adoptive\nparents, an adopted child\'s status was the same as it would have been if no act of adoption had\n182\n\n\x0coccurred.\xe2\x80\x9d Id. Therefore, \xe2\x80\x9c[t]here is no basis then for saying that the status conferred by the 1931\nAct requires that an adopted child be regarded as a natural child of the adopter for the purpose of\nconstruing instruments executed by third persons.\xe2\x80\x9d Id. at 516-17. This rule is called the \xe2\x80\x9cstranger to\nthe adoption rule.\xe2\x80\x9d According to the rule, adopted persons could inherit from their adoptive parents\nbut not through them; that is, they could not inherit from one who was a \xe2\x80\x9cstranger to the adoption.\xe2\x80\x9d See\nid.\nb. 1947 Statute\nIn 1947, the Legislature enacted a statute providing for the adoption of adults in the same manner as\nwas then provided for adopting minors. See Act of 1947, 50th Leg., R.S., ch. 428, 1947 Tex. Gen.\nLaws 1009. Thus, the statute tracked the above language providing for the adoption of minor\nchildren. However, as noted, the supreme court applied the \xe2\x80\x9cstranger to the adoption rule\xe2\x80\x9d to that\nstatute. See Cutrer, 345 S.W.2d at 516. Therefore, the stranger to the adoption rule applied to this\n1947 statute providing that those adopted as adults will \xe2\x80\x9cbe deemed and held to be, for every purpose,\nthe child of [his] parent or parents by adoption as fully as though born of them in lawful wedlock.\xe2\x80\x9d See Act of 1947,\n50th Leg., R.S., ch. 428, 1947 Tex. Gen. Laws 1009.\nc. 1951 Statute\nIn 1951, the Legislature amended the adoption statute relating to minors:\nWhen a minor child is adopted in accordance with the provisions of this Article, all legal\nrelationship and all rights and duties between such child and its natural parents shall cease\nand terminate, and such child shall thereafter be deemed and held to be for every purpose\nthe child of its parent or parents by adoption as fully as though naturally born to them in\nlawful wedlock. Said child shall be entitled to proper education, support, maintenance,\nnurture and care from said parent or parents by adoption, and said parent or parents by\nadoption shall be entitled to the services, wages, control, custody and company of said\nadopted child, all as if said child were their own natural child. For purposes of inheritance\nunder the laws of descent and distribution such adopted child shall be regarded as the child\nof the parent or parents by adoption, such adopted child and its descendants inheriting from\nand through the parent or parents by adoption and their kin the same as if such child were\nthe natural legitimate child of such parent or parents by adoption, and such parent or parents\nby adoption and their kin inheriting from and through such adopted child the same as if\nsuch child were the natural legitimate child of such parent or parents by adoption. The\nnatural parent or parents of such child and their kin shall not inherit from or through said\nchild, but said child shall inherit from and through its natural parent or parents. Nothing\nherein shall prevent anyone from disposing of his property by will according to law. Such\nadopted child shall be regarded as a child of the parent or parents by adoption for all other purposes as well,\nexcept that where a deed, will, or other instrument uses words clearly intended to exclude children by adoption,\nsuch adopted child shall not be included in such class....\nActs of 1951, 52nd Leg., ch. 249, \xc2\xa7 3, 1951 Tex. Gen. Laws 388, 390 (emphasis added).\nThis is the statute that abrogated the stranger to the adoption rule with respect to those adopted as\nminors. See Ortega v. First Republic Bank Fort Worth, N.A., 792 S.W.2d 452, 454 (Tex.1990) (\xe2\x80\x9cBefore\n1951, the general rule in Texas was that an adopted child was not entitled to property conveyed or\n183\n\n\x0cdevised to the natural children of the adoptive parent unless the intent to include was indicated by\nadditional language or circumstances. This presumption of exclusion was changed by the passage of\na 1951 amendment to the adoption statutes.\xe2\x80\x9d). However, the Legislature did not amend the adult\nadoption statute. Thus, the 1951 amendment, with respect to adult adoptees, did not abrogate the\nstranger to the adoption rule.\nd. 1973 Statute\nIn 1973, the Legislature adopted the Texas Family Code and codified the following child adoption\nstatute:\nSubchapter A. Adoption of Children\nSec. 16.09. Effect of Adoption Decree\n(a) On entry of a decree of adoption, the parent-child relationship exists between the\nadopted child and the adoptive parents as if the child were born to the adoptive\nparents during marriage.\n(b) An adopted child is entitled to inherit from and through his adoptive parents as\nthough he were the natural child of the parents.\n(c) The terms \xe2\x80\x9cchild,\xe2\x80\x9d \xe2\x80\x9cdescendant,\xe2\x80\x9d \xe2\x80\x9cissue,\xe2\x80\x9d and other terms indicating the\nrelationship of parent and child include an adopted child unless the context or express\nlanguage clearly indicates otherwise.\nIt also codified a statute relating to the adoption of adults:\nSubchapter B. Adoption of Adults\nSec. 16.55. Effect of Adoption Decree\nOn entry of the decree of adoption, the adopted adult is the son or daughter of the\nadoptive parents and of the natural parents, for inheritance purposes. However, the\nnatural parents may not inherit from the adopted adult.\nAct of 1973, 63d Leg., R.S., ch. 543, \xc2\xa7 16.55, 1973 Tex. Gen. Laws 1411.\ne. 1975 Statute\nIn 1975, the Legislature amended the statute relating to adoption of adults (it did not amend the\nstatute relating to the adoption of minor children):\nSec. 16.55. Effect of Adoption Decree\nOn entry of the decree of adoption, the adopted adult is the son or daughter of the\nadoptive parents for all purposes, and of the natural parents for inheritance purposes\nonly. However, the natural parents may not inherit from or through the adopted adult.\n184\n\n\x0cActs of 1975, 64th Leg., R.S., ch. 475, \xc2\xa7 43, 1975 Tex. Gen. Laws 1253, 1270 (emphasis added). This\n1975 statute is the law that was in effect at the time the Trust was created. This is also the\namendment that the Lindners claim abrogated the stranger to the adoption rule with respect to\nadults. They argue that the phrase \xe2\x80\x9cfor all purposes\xe2\x80\x9d means that the adopted adult can inherit through\nhis adoptive parents.\nArleene and Darleene Ellison, in contrast, argue that this amendment did not abrogate the stranger\nto the adoption rule and point to the differences between the child and adult statutes. They\nemphasize that the minor adoption statute, in subsection (c), contained an \xe2\x80\x9cinclusionary\npresumption,\xe2\x80\x9d which expressly abrogated the stranger to the adoption rule. However, the adult\nversion contained no such inclusionary presumption. Thus, according to Arleene and Darleene, the\nLegislature must have intentionally not included such an \xe2\x80\x9cinclusionary presumption\xe2\x80\x9d in the adult\nstatute. And, by not including such a presumption, the common-law exclusionary presumption\nknown as the stranger to the adoption rule remained in effect for adult adoptees. We agree with\nArleene and Darleene Ellison.\nWe find it significant that the Legislature failed to include an inclusionary presumption in the 1975\nstatute. And, we find the Lindners\' argument that the language \xe2\x80\x9cfor all purposes\xe2\x80\x9d abrogated the\nstranger to the adoption rule unpersuasive. When it enacted this statute, the Legislature knew that\nthe Texas Supreme Court had interpreted statutory language like \xe2\x80\x9cfor all purposes\xe2\x80\x9d as not\nabrogating the stranger to the adoption rule. See Cutrer, 345 S.W.2d at 516 (interpreting statutory\nlanguage that included the phrase \xe2\x80\x9cfor every purpose\xe2\x80\x9d to apply only to the adoptive parent and child\nand to not allow an adoptive child to inherit \xe2\x80\x9cthrough\xe2\x80\x9d the adoptive parent). Thus, had it wanted to\nabrogate the stranger to the adoption rule with respect to adults, the Legislature would have\nexplicitly included an inclusionary presumption. See Foster v. Foster, 641 S.W.2d 693, 695 (Tex.App.Fort Worth 1982, no writ) (\xe2\x80\x9cEven now [in 1982], it is not the law of this State that one who was an\nadult when adopted has entitlement under the laws of descent and distribution to recover as a child\nfrom anyone other than his adoptive parents.\xe2\x80\x9d). We believe the Legislature did so in 1995 when it\namended the statute to state that an adopted adult \xe2\x80\x9cis entitled to inherit from and through the adopted\nadult\'s adoptive parents as though the adopted adult were the biological child of the adoptive\nparents.\xe2\x80\x9d Act of April 6, 1995, 74th Leg., R.S., ch. 20, \xc2\xa7 1, sec. 162.507(b), 1995 Tex. Gen. Laws 113,\n238 (current version at TEX. FAM. CODE ANN. 162.507 (Vernon Supp.2005)) (emphasis added);\nsee Armstrong v. Hixon, 206 S.W.3d 175, 180-81 (Tex.App.-Corpus Christi 2006, pet. denied) (\xe2\x80\x9cNot\nuntil 1995 did the Legislature modify the adult adoption statute to specifically provide that an\nadopted adult might inherit \xe2\x80\x98from and through\xe2\x80\x99 the adopted adult\'s adoptive parents.\xe2\x80\x9d).\nThe Lindners, however, point to a 1984 Texas Supreme Court case, decided two years after Ray\nEllison Sr. created the Trust: Lehman v. Corpus Christi National Bank, 668 S.W.2d 687 (Tex.1984).\nThey argue that the following language in Lehman supports their assertion that the 1975 statute\nabrogated the stranger to the adoption rule with respect to adults:\nKeith Lehman would have us announce a presumption that adopted adults are not included\nwithin the beneficiaries of a class gift in a testamentary instrument of someone other than\nthe adoptive parents. We decline to do so. This presumption would be a form of the\n\xe2\x80\x9cstranger to the adoption\xe2\x80\x9d rule, which has now been rejected in Texas, see Vaughn v. Gunter,\n458 S.W.2d 523 (Tex.Civ.App.-Dallas), writ ref\'d n.r.e.,461 S.W.2d 599 (Tex.1970), as well as in\na majority of American jurisdictions considering the question. See Elliott v. Hiddleson, 303\n185\n\n\x0cN.W.2d 140, 144 (Iowa 1981).\nId. at 688. We, however, find Lehman distinguishable.\nThe will at issue in Lehman specifically included adoptees as descendants, with no age distinction\nbetween children and adults. Id. at 688. Thus, the language from Lehman upon which the Lindners\nrely to support their claim is mere dicta. Further, in making its assertion that the stranger to the\nadoption rule had already been eliminated by the 1951 amendment to the statute, the Lehman court\nrelied upon a court of appeals decision. See id. That case, Vaughn v. Gunter, 458 S.W.2d at 524-25,\ndealt with the issue of whether an individual who had been adopted as a minor was included in the\nclass defined as \xe2\x80\x9cchildren\xe2\x80\x9d of his adopted father. In holding that the minor adoptee was a child of\nhis adopted father, the Vaughn court relied on the 1951 statute relating to minors that clearly abrogated\nthe stranger to the adoption rule with respect to minor. The Vaughn court did not address the 1951\nstatute concerning the adoption of adults. Therefore, we find Lehman and its reliance on Vaughn\ndistinguishable from this case.\nThus, by using the 1975 statute as a constructive aid, we conclude that when Ray Ellison Sr. created\nthe Trust in 1982, he did not intend the term \xe2\x80\x9cdescendants\xe2\x80\x9d to include those persons adopted as\nadults.\nConclusion\nBecause the trial court did not err in concluding that Ray Ellison Sr. intended the term\n\xe2\x80\x9cdescendants\xe2\x80\x9d to not include those persons adopted as adults and because it did not abuse its\ndiscretion in awarding attorneys\' fees, we affirm, as modified, the judgment of the trial court.\nSIMMONS, J., dissenting.\nIn this case, the old adage \xe2\x80\x9cbad facts make bad law\xe2\x80\x9d is particularly true. The record paints an\nunattractive picture of Ray Ellison, Jr. (\xe2\x80\x9cRay Jr.\xe2\x80\x9d) and the Lindner boys and the motive surrounding\ntheir adoption. The record before the trial court was replete with evidence that the adoption of the\nadult Lindner boys by Ray Jr. was merely a way in which Ray Jr. could attempt to exercise control\nover his father\'s trust. There was evidence that Ray Jr. was not only estranged from his father when\nthe trust was created, but estranged from his daughters and niece, the beneficiaries of the trust. The\nissue in this appeal is whether we (1) apply the law and reward what could be characterized as\nunworthy beneficiaries or (2) neglect established precedent and impose our own intent on the inter\nvivos, irrevocable trust to exclude the unworthy contenders to the Ray Ellison, Sr. fortune. I choose\nthe former and thus, must respectfully dissent.\nI agree with much of the majority opinion; we part ways, however, over the status of adopted adults\nin 1982 and whether the \xe2\x80\x9cstranger to the adoption\xe2\x80\x9d rule was in effect in 1982, when the Trust was\ncreated. I believe that in 1982, adopted adults were the sons or daughters of their adoptive parents\n\xe2\x80\x9cfor all purposes,\xe2\x80\x9d including inheriting from and through the adoptive parents.\nThe controlling law in effect in 1982, when the Trust was created, provided:\nOn entry of the decree of adoption, the adopted adult is the son or daughter of the adoptive\nparents for all purposes, and of the natural parents for inheritance purposes only. However,\n186\n\n\x0cthe natural parents may not inherit from or through the adopted adult.\nActs of 1975, 64th Leg., R.S., ch. 475, \xc2\xa7 43, 1975 Tex. Gen. Laws 1253, 1270.\nThe meaning of the statute is clear-that adopted adults are the sons or daughters of their adoptive\nparents \xe2\x80\x9cfor all purposes.\xe2\x80\x9d Although Arleene and Darleene Ellison argue that this 1975 amendment\ndid not abrogate the stranger to the adoption rule, the Texas Supreme Court determined otherwise\nin Lehman v. Corpus Christi Nat\'l Bank, 668 S.W.2d 687 (Tex.1984). In Lehman, the question before the\ncourt was whether an adopted adult qualified as a \xe2\x80\x9cdescendant\xe2\x80\x9d of his adoptive father within the\nterms of his grandfather\'s will. Id. at 688. The will expressly defined \xe2\x80\x9cdescendants\xe2\x80\x9d as including \xe2\x80\x9cthe\nchildren of the person designated, and the issue of such children, and such children and issue shall\nalways include those who are adopted.\xe2\x80\x9d Id. (emphasis added). Thus, those adopted as children were\nunambiguously defined as descendants, but the issue was whether \xe2\x80\x9cchildren ... who are adopted\xe2\x80\x9d\nincluded those adopted as adults. The supreme court reasoned that adopted adults were included\nbecause the will\'s definition of \xe2\x80\x9cdescendants\xe2\x80\x9d drew no distinction between natural and adopted\nchildren, \xe2\x80\x9cif adopted adults are incapable of taking, adult natural children would likewise be excluded\nfrom the class of beneficiaries.\xe2\x80\x9d Id.\nWhile I agree that the language in Lehman is dicta and that it was decided two years after the Trust\nwas created, I cannot ignore that the supreme court in Lehman interpreted the 1975 statute at issue as\nhaving abrogated the stranger to the adoption rule. The supreme court goes on to point out that the\nstranger to the adoption rule had likewise been rejected in a majority of American jurisdictions and\nwas \xe2\x80\x9ccontrary to the public policy of this state.\xe2\x80\x9d Id. Although the application of Lehman to this case\nmay seem to cause an inequitable result, the failure to recognize that the stranger to the adoption\nrule was abrogated in 1975 may have serious unintended consequences. Any practitioner reading\nLehman prior to this decision would have concluded that the stranger to the adoption rule was\nabrogated by the 1975 statute and advise her clients accordingly. Yet, under the reasoning of the\nmajority opinion, the stranger to the adoption rule, referred to as bad public policy under Lehman,\nwas not abrogated until some twenty years later, in a recodification of the statute in 1995. Lehman\nhas been the law in this area for the past twenty-five years and I would apply it to this case.\nThus, by using the 1975 statute as a constructive aid, I cannot conclude that Ray Ellison, Sr.\nintended to preclude adult adoptees as \xe2\x80\x9cdescendants\xe2\x80\x9d of his son, Ray Ellison, Jr. Therefore, I cannot\nagree to affirm the trial court\'s summary judgment. This case presents a very unfortunate family\ndispute. The record reflects that the Lindner boys were adopted by Ray Jr., in part, to allow Ray Jr.\nto exercise control over his father\'s trust. Although the Lindner boys do not look like worthy\nbeneficiaries, I would not change twenty-five years of law to refute their claims.\n4.3.3\n\nStepparent Adoption\n\nUniform Probate Code \xc2\xa7 2-114 Parent and Child Relationship\n(b)\n\nAn adopted individual is the child of his [or her] adopting parent or parents and not of his\n[or her] natural parents, but adoption of a child by the spouse of either natural parent has no\neffect on (i) the relationship between the child and that natural parent or (ii) the right of the\nchild or a descendant of the child to inherit from or through the other natural parent.\n187\n\n\x0cUniform Adoption Act \xc2\xa7 4-103 (1994)\n(b)\n\nAn adoption by a stepparent does not affect:\n(3)\n\nthe right of the adoptee or a descendant of the adoptee to inheritance or intestate\nsuccession through or from the adoptee\xe2\x80\x99s former parent.\n\nIt is usually in the child\xe2\x80\x99s best interests to be in a two parent family. Thus, legislatures and\nthe courts seek to preserve the family unit. If the parents, divorce, legislatures and courts ensure that\nthe noncustodial parent maintains contact with the child by giving that person liberal visitation\nrights. Therefore, divorce does not sever the parent-child relationship. On the other hand, if the\ncustodial parent remarries, it is in the child\xe2\x80\x99s best interests to blend into that family unit. Normally,\nthe birth parent-child relationship takes precedent over the stepparent-stepchild relationship.\nConsequently, as will be discussed in a later chapter, stepchildren are not typically considered to be\nthe heirs of their stepparents. To encourage harmony in blended families, legislatures and courts do\nnot permit the relationship that the child has with his or her stepparent to interfere with the\nrelationship that the child has with his or her birth parents. In jurisdictions that have adopted the\nUPC, the stepparent\xe2\x80\x99s adoption of the child does not impact the relationship between the child and\nthe birth parents. This approach permits the courts to respect the relationships that children have\nwith their stepparents and their birth parents. In light of the high divorce rate and the increasing\nnumber of blended families, the UPC\xe2\x80\x99s approach is consistent with public policy.\nImpact on the right to inherit from biological parent(s)\n\nEstate of Jacobs, 719 A.2d 523 (Me. 1998)\nSAUFLEY, J.\nGloria B. Norcott appeals from an order of the Oxford County Probate Court (Hanley, J.), finding\nthat Jameson Boucher is the \xe2\x80\x9cchild\xe2\x80\x9d of her son Derek Jacobs, now deceased for purposes of\nintestacy under the Maine Probate Code. Because we agree with the Probate Code that Boucher\xe2\x80\x99s\nadoption by his mother\xe2\x80\x99s husband did not change his relationship with Jacobs, his natural father, for\npurposes of intestacy pursuant to 18-A M.R.S.A. \xc2\xa7 2-109, we affirm.\nJameson Boucher (named Jameson LaCroix at birth) was born in 1970 in New Hampshire to\nSuzanne LaCroix. LaCroix, unmarried at that time, later married Peter Boucher, who adopted\nJameson just before his second birthday. The child\xe2\x80\x99s last name was accordingly changed from\nLaCroix to Boucher under the adoption decree. The decree was silent as to the child\xe2\x80\x99s relationship\nto his natural father. Indeed, it is not clear from the record that the identity of Jasmeson Boucher\xe2\x80\x99s\nfather was known at the time of adoption. It is undisputed, however, that when Boucher became an\nadult he established a relationship with Derek Jacobs before Jacob\xe2\x80\x99s death and that Jacobs is, in fact,\nBoucher\xe2\x80\x99s natural father.\nDerek Jacobs died intestate in Maine in early December 1995, at the age of forty-three. Norcott, his\nmother, filed a petition for her informal appointment as personal representative of Jacobs\xe2\x80\x99s estate,\nand listed herself and Robert Jacobs, Derek\xe2\x80\x99s father, as the decedent\xe2\x80\x99s only heirs. Jameson Boucher\nfiled a competing petition for formal adjudication of intestacy, identifying himself as Jacobs\xe2\x80\x99s son,\n188\n\n\x0cand seeking his own appointment as personal representative of the decedent\xe2\x80\x99s estate. The Probate\nCourt held that, pursuant to section 2-109 of the Probate Code, Jameson Boucher was the \xe2\x80\x9cchild\xe2\x80\x9d of\nthe decedent, Derek Jacobs, for purposes of intestacy, and therefore that he had priority of\nappointment as personal representative of the decedent\xe2\x80\x99s estate, Gloria Norcott appealed from this\norder.\nThe sole question before the Court is whether, pursuant to 18-A M.R.S.A. \xc2\xa7 2-109(1), Jameson\nBoucher is the \xe2\x80\x9cchild\xe2\x80\x9d of Derek Jacobs for purposes of intestate inheritance, despite the absence of\na provision in his adoption decree providing for that status. Statutory interpretation is a matter of\nlaw, and we review the trial court\xe2\x80\x99s decision de novo. See Guardianship of Zachary Z., 677 A.2d 550,\n552 (Me. 1996). When interpreting a statute, we look first to its plain meaning and seek to give\neffect to the intent of the Legislature, construing the statutory language to avoid absurd, illogical, or\ninconsistent results. See Nasberg v. City of Augusta, 662 A.2d 227, 229 (Me. 1995). In doing so, we\nconsider \xe2\x80\x9cthe whole statutory scheme of which the section at issue forms a part so that a\nharmonious result, presumably the intent of the Legislature, may be achieved.\xe2\x80\x9d Davis v. Scott Paper\nCo., 507 A.2d 581, 583 (Me. 1986).\nSection 2-109(1) of the Maine Probate Code provides:\nAn adopted person is the child of an adopting parent and not of the natural parents except\nthat an adopted child inherits from the natural parents and their respective kin if the\nadoption decree so provides, and except that adoption of a child by the spouse of a natural parent has\nno effect on the relationship between the child and either natural parent. If a natural parent wishes an\nadopted child to inherit from the natural parents and their respective kin, the adoption\ndecree must provide for that status. 18-A M.R.S.A. \xc2\xa7 2-109 (1998) (emphasis added).\nThe unambiguous language at the end of the first sentence stating that the adoption of a child by the\nspouse of a natural parent has no effect on the relationship between the child and either parent, results\nin that child being the \xe2\x80\x9cchild\xe2\x80\x9d of and inheriting from both natural parents. The adoption by a\nstepparent, in other words, does not affect the relationship between the adopted person and either\nof his natural parents for purposes of intestacy under the Probate Code.\nNorcott argues, however, that the second sentence, added by the Legislature in 1993, modifies the\nfirst sentence so that a child adopted by a stepparent may inherit through both natural parents only\nif the adoption decree explicitly so provides. If the second sentence is read to have the effect urged\nby Norcott, much of the first sentence becomes meaningless because its exception to the rule for\nadoptions by stepparents would be swallowed by the requirement that the adoption decree explicitly\naddress the continued inheritance rights. Such an interpretation would run directly counter to our\nmandate to give effect to all portions of a statute where that goal can be accomplished in a logical\nfashion. If, in contrast, the second sentence is read to provide simply that natural parents have the\naffirmative right to assure that their child will inherit from them when that child is adopted by\nsomeone other than a spouse of a natural parent, both sentences are given meaning, and the result is\nneither illogical nor inconsistent.\nMoreover, to the extent that the second sentence of section 2-109 is inconsistent with the first, any\nambiguity is resolved by the legislative history of the statute. Before the 1993 amendment, it was\nclear that \xe2\x80\x9ca child adopted by the new spouse of a natural parent\xe2\x80\xa6inherit[ed] from both his natural\nparents and from his adoptive parent.\xe2\x80\x9d Maine Probate Law 41 (1978). When the second sentence\n189\n\n\x0cwas added in 1993, the statement of fact accompanying a Senate Amendment to the bill provided:\n\xe2\x80\x9cThis amendment retains current inheritance rights of adopted children but clarifies that the adoptive parents\nmay not bar the wishes of the birth parents.\xe2\x80\x9d Comm. Amend. A to L.D. 942, No. S-495 (116th Legis.\n1993) (emphasis added). Thus, it is clear that the Legislature did not intend the amendment to\nchange the meaning of the existing provision, under which the adoption of a child by the spouse of\na natural parent did not affect the child\xe2\x80\x99s relationship with either of his natural parents.\nAccordingly, the Probate Court correctly concluded that Jameson Boucher is the \xe2\x80\x9cchild\xe2\x80\x9d of his\nnatural father, Derek Jacobs, pursuant to section 2-109 of the Maine Probate Code.\nJudgment affirmed.\nImpact on the right to inherit through biological parent(s)\n\nIn re Estate of McQuesten, 578 A.2d 335 (N.H. 1990)\nBROCK, Chief Justice.\nThe petitioners were adopted by their stepfather following the divorce of their natural parents and\nthe remarriage of their mother. They now claim a right to inherit, through their deceased natural\nfather, from the estate of their natural paternal grandmother. The Hillsborough County Probate\nCourt (Cloutier, J.) denied the petitioners\' claim, ruling that the right to take by representation was\nterminated by the adoption. For the reasons that follow, we affirm.\nSheree L. Faucher and Cathy L. Faucher, the petitioners, were born during the marriage of their\nnatural parents, Robert A. McQuesten and Sandra A. Faucher (formerly Sandra A. McQuesten).\nWhen the marriage ended in divorce in 1963, custody of the petitioners was given to their mother,\nwho later that same year married Bertrand Faucher. In 1968, when Sheree and Cathy were nine and\nseven years old, respectively, they were adopted by their stepfather with the consent of their natural\nfather.\nIn 1971, Robert A. McQuesten died intestate and, in 1979, his mother, Ena M. McQuesten also died\nintestate. In December 1988, the petitioners filed notices of claim with the probate court, each\nseeking an amount equivalent to one-fourteenth (1/14) of the value of certain real estate owned by\ntheir natural paternal grandmother at the time of her death. The court denied the petitioners\' claims,\nruling \xe2\x80\x9cthat the right to take by representation through their biological parent [was] terminated by\nthe adoption....\xe2\x80\x9d The petitioners also filed a motion, which was not granted by the probate court,\nrequesting access to their sealed adoption records.\nOn appeal, the petitioners argue that the probate court erred in denying their claims against their\ngrandmother\'s estate. They contend that RSA 170-B:20 creates a special exception, applicable to\nstepparent adoptions, which permits them to inherit through their natural father. They further\ncontend that the termination of the right to inherit through their natural father, who openly\nconsented to the adoption of his children by their stepfather, was not in their \xe2\x80\x9cbest interests\xe2\x80\x9d and\nviolated principles of equity. In addition, the petitioners argue that a guardian ad litem should have\nbeen appointed by the probate court at the time of adoption to protect their financial interests.\nFinally, they claim that \xe2\x80\x9cgood cause\xe2\x80\x9d exists to unseal their adoption records because their adoption\n190\n\n\x0cwas open and uncontested and because no living party to the adoption has expressed any objection.\nWe first address the petitioners\' claim that the adoption statute creates an exception for stepparent\nadoptions, allowing the adopted child to inherit from the natural parent who has been otherwise\ndispossessed of any parental rights, privileges, duties or obligations. The petitioners argue that the\nexception can be found in the wording of RSA 170-B:20, V: \xe2\x80\x9cWhen the adopting parent is a\nstepparent, married to a natural parent, nothing contained in this section shall affect the rights of\ninheritance between the child and his natural parent or their collateral or lineal relatives.\xe2\x80\x9d (Emphasis\nadded.) The petitioners assert that because the legislature did not employ the phrase \xe2\x80\x9chis natural\nparent who is married to the stepparent,\xe2\x80\x9d as it did in RSA 170-B:20, II, it was referring to the natural\nparent who was not part of the adoptive marriage. We disagree.\n\xe2\x80\x9cAdoption was unknown at common law and is wholly statutory.\xe2\x80\x9d Durivage v. Vincent, 102 N.H. 481,\n483, 161 A.2d 175, 177 (1960). Therefore, our review of this claim is limited to an interpretation of\nwhat the legislature has enacted. Young v. Bridges, 86 N.H. 135, 138, 165 A. 272, 274 (1933). In\ninterpreting the intent of the legislature, we look at words in the context of the statute as a whole.\nState Employees Ass\'n v. Cheney, 119 N.H. 822, 826, 409 A.2d 775, 777 (1979).\nRSA 170-B:20 contains five paragraphs. Paragraph I confers upon the adopted child and the\nadoptive parent or parents the same rights, privileges, duties and obligations, with respect to one\nanother, as if the adopted child were born in wedlock to the adoptive parent or parents. RSA 170B:20, I. Paragraph II, which complements paragraph I, removes from the natural parent or parents\nany of the rights, privileges, duties or obligations with respect to the adopted child. RSA 170-B:20,\nII. Paragraph II contains an exception, exempting from its provisions natural parents who are\nmarried to adoptive stepparents. RSA 170-B:20, II. Paragraphs III and IV specifically address\ninheritance rights. Paragraph III severs existing rights of inheritance between the adopted child and\nthe natural parent or parents. RSA 170-B:20, III. Paragraph IV, complementing paragraph III,\nestablishes rights of inheritance between the adopted child and the adoptive parent or parents. RSA\n170-B:20, IV. Paragraph V is composed of several sentences, each dealing further with the effect of\nadoption upon testate or intestate property distribution. See RSA 170-B:20, V.\nIt is one of the sentences of paragraph V which provides the fuel for the petitioners\' argument. The\nsentence calls for the continuation of inheritance rights, which would otherwise be severed by the\nprovisions of paragraph III, between an adopted child and \xe2\x80\x9chis natural parent\xe2\x80\x9d in situations\ninvolving stepparent adoption. RSA 170-B:20, V. The question is whether \xe2\x80\x9chis natural parent\xe2\x80\x9d refers\nto the natural parent married to the stepparent, to the natural parent whose parental relationship\nwith the adopted child has been legally terminated, or to both.\nThe provision clearly does not apply to both natural parents. The wording, \xe2\x80\x9chis natural parent,\xe2\x80\x9d is in\nthe singular. The adoption statute consistently makes reference to \xe2\x80\x9cnatural parent or parents\xe2\x80\x9d where\ninclusion of both the natural father and the natural mother is intended. See RSA 170-B:20, I-V. If the\nlegislature had sought to continue the inheritance rights between the adopted child and both natural\nparents, it undoubtedly would have employed similar language.\nIn determining which natural parent is referred to as \xe2\x80\x9chis natural parent,\xe2\x80\x9d it is logical that the\nlegislature would intend to preserve inheritance rights between an adopted child and the natural\nparent with whom he or she continues to have a familial relationship. This would be consistent with\nthe exception contained in paragraph II. See RSA 170-B:20, II. Furthermore, it would be illogical to\n191\n\n\x0cconclude that the legislature intended to continue inheritance rights between an adopted child and a\nnatural parent who has had all other parental rights, privileges, duties and obligations legally\nterminated. See RSA 170-B:20, II, III.\nIn interpreting the adoption statute as a whole, we conclude that RSA 170-B:20, V allows the\ninheritance rights of the natural parent married to an adopting stepparent to remain unaffected by\nthe adoption. It does not create an exception whereby inheritance rights may be preserved between\nan adoptive child and a natural parent who has been legally dispossessed of any continuing parental\nrights or duties.\nNext, we consider the petitioners\' claim that, despite the intent of the legislature, as expressed in the\nadoption statute, this court should promote their \xe2\x80\x9cbest interests\xe2\x80\x9d and permit them to inherit from\nthe estate of their natural paternal grandmother. The basis for making such a ruling, as argued by the\npetitioners, is that theirs was an \xe2\x80\x9copen\xe2\x80\x9d adoption, entered into with the knowledge and consent of\ntheir now deceased natural father. They argue that they should be permitted to inherit from their\nnatural parents as well as their adoptive parents, which would be the result if this court applied\nprinciples of fairness and equity. We disagree.\nWe begin our review of this claim by noting that RSA 170-B:20, III-V, the provisions which address\nrights of inheritance after adoption, do not differentiate between cases based upon whether an\nadoption is \xe2\x80\x9copen\xe2\x80\x9d or whether parental consent was obtained. We further note that the only interest\nwhich the petitioners have asked us to promote is their claim to a portion of their late grandmother\'s\nestate.\nWe have previously addressed the petitioners\' argument regarding the fairness and equity of\npermitting adopted children to inherit from both adoptive and natural parents and have held \xe2\x80\x9cthat\nfor the purpose of inheritance of property by heirship the adopted child becomes the child of the\nadopting parents and ceases to be the child of the natural parents, the reason being to avoid the\nunfair result of giving a dual right of inheritance to an adopted child as against the single right of a\nchild not adopted to inherit from his blood kin only.\xe2\x80\x9d Amoskeag Trust Co. v. Haskell, 96 N.H. 89, 98,\n70 A.2d 210, 217 (1950) (citing Young v. Bridges, 86 N.H. at 138, 165 A. at 275) (emphasis added).\nThis reasoning remains sound today. While an adopted child may lose rights of inheritance from\nnatural parents, he or she gains rights of inheritance from adoptive parents. RSA 170-B:20, I. At the\nsame time, natural parents are not prevented from making testamentary provision for their children\nwho are adopted, should they desire. RSA 170-B:20, V.\nThe right of inheritance is also controlled by statute. See RSA ch. 561. The right is of no immediate\nvalue until a relative dies and the deceased relative\'s assets, by operation of the descent and\ndistribution statutes, become vested in the heir. A relative can disappoint a potential heir by\nconveying his or her life\'s bounty through testamentary disposition or inter vivos transfer to other\nparties, or by simply expending his or her resources during his or her lifetime. While the right of\ninheritance provides the opportunity for an heir to be enriched by the demise of a relative, we\ncannot adjudge one right of inheritance to be more valuable than another.\nWe see no unfairness or inequity in terminating the right of inheritance through a natural parent in\nsubstitution for granting a new right of inheritance through an adoptive parent. In the petitioners\'\nsituation, it may be in their best financial interest to inherit from their natural grandmother. But it is\nnot the purpose of the adoption statute to create financial advantages for the adopted child. See RSA\n192\n\n\x0c170-B:1. The statute already considers the respective interests of the adopted child, adoptive parents\nand natural parents in the adoption process. See id. Because the statute provides a clear solution in\nthe interest of all parties, we need not apply equitable principles to reach a contrary result. Smith v.\nConsul General Of Spain, 110 N.H. 62, 64, 260 A.2d 95, 97 (1969).\nNext, the petitioners claim that the failure of the probate court to appoint guardians ad litem to\nrepresent their financial interests during the adoption proceeding amounted to a denial of due\nprocess and the unprivileged taking of their property in violation of the New Hampshire\nConstitution, part I, article 15. We find no merit in this claim.\nThe petitioners were not dispossessed of the right to inherit. For purposes of inheritance, the\nadoption changed only their familial association, exchanging their inheritance right through their\nnatural father for the right to inherit through their adoptive father. Their natural father and his\nrelatives retained the right to make testamentary dispositions to the petitioners. As stated earlier, the\nright to inherit has no immediate value, providing opportunity for gain only under fortuitous, and\noften bittersweet, circumstances. The petitioners had no property taken from them at the time of\ntheir adoption, and the State Constitution was not violated. The probate court did not err in failing\nto appoint guardians ad litem to represent the petitioners\' financial interests.\nAffirmed.\n\n193\n\n\x0cChapter Five: Intestacy (Non-Marital Children, Stepchildren and Foster\nChildren)\n5.1\n\nIntroduction\n\nThis chapter examines the rights of three categories of children who are treated like\noutsiders. These children are punished because of the actions of their parents. The deterioration of\nthe institution of marriage created two new classes of children\xe2\x80\x94non-marital children and step\nchildren. For inheritance purposes, non-marital children are treated like second tiered children. A\nchild who is not genetically related to a woman\xe2\x80\x99s husband has the opportunity to inherit from that\nman because of the marriage. However, a child born outside of the marriage may not be able to\ninherit from his biological father unless his mother jumps through some extra hoops.\nWhen the intestacy system was created, non-marital children were called bastards and had\nbasically no legal rights. The man did not have to provide any type of support for the children he\nconceived with a woman who was not his wife. Those children were considered to be the children\nof no one. Therefore, they were not legally entitled to child support or legally able to be heirs.29 If an\nunmarried woman died giving birth to a child, that child was forced to reside in an orphanage home\nor to live on the streets. The child suffered that fate even if the child\xe2\x80\x99s father was a wealthy man.\nThere was a no great outrage or objection to that practice because children born out of wedlock\nwere considered to be the products of sin. As more and more people chose to openly have children\nwithout the benefit of marriage, the plight of non-marital children could not be ignored. Society\nrecognized the need to ensure that those children were not disadvantaged because of the\ncircumstances of their births. It took years of litigation, but the stigma of illegitimacy was eventually\nremoved from the non-marital child. Currently, all fifty states and the District of Columbia have\nintestacy statutes giving non-marital children the opportunity to inherit from their parents. Thus, the\nnature of the litigation has changed. Recent cases address the ability of non-marital children to take\nthe steps necessary to have the chance to inherit from their fathers.\nMy father was my mother\xe2\x80\x99s third husband. When my parents married, my mother had three\nsmall children. As a result of their marriage, my parents conceived nine children. We all grew up\ntogether as a family. I did not make any distinction between my half-siblings and my whole siblings.\nNonetheless, when my father died, his estate was divided into nine parts instead of twelve parts. The\ncourts did not take into consideration that my half-siblings were really young when my parents\nmarried or the fact that my father had a close relationship with my half-siblings. The courts were\nbound by the law that stated that stepchildren were not heirs of their stepparents. In this context,\nthe legal parent-child relationship necessary for my half-siblings to inherit from my father did not\nexist even though a parent-child relationship did exist. Studies show that a majority of children in\nthe United States will live in blended families. Thus, there is a push to put stepchildren on par with\nbiological children for intestacy purposes. I have included a discussion of the inheritance rights of\nfoster children in this chapter because the foster care system is changing. Children are staying longer\nin the same foster homes and becoming part of their foster families. Therefore, the foster parentfoster child relationship resembles a parent-child relationship.\n\n29\n\n1 William Blackstone, Commentaries on the Laws of England 447 (William S. Hein & Co., Inc. 1992).\n\n194\n\n\x0c5.2\n\nNon-Marital Children\n\nMost of the current litigation in this area involves the non-marital child\xe2\x80\x99s right to inherit\nfrom his or her father. In order for the non-marital child to be considered an heir under the\nintestacy system, a father-child relationship must exist. The legal issues relevant to the discussion are:\n(1) Whether the intestate statute at issue satisfies the mandates established by the United States\nSupreme Court cases; (2) Whether the non-marital child has sufficiently complied with the intestate\nstatute to have earned the opportunity to inherit from his or her parent; and (3) Whether the nonmarital child should be given the chance to inherit through his or her parent.\nEvery time the state expands the definition of \xe2\x80\x9cchild\xe2\x80\x9d for inheritance purposes, it decreases\nthe inheritance rights of marital children. Accordingly, the state legislature must balance the\ninheritance rights of various groups of children while promoting the state\xe2\x80\x99s interest in an orderly\nprobate process. When reading the materials in this section, you should think about the interests that\nhave to be balanced. In deciding how to distribute the property of a man who dies intestate, the state\nmust consider three important interests: (1) the state\xe2\x80\x99s interests in the orderly disposition of after\ndeath property; (2) the non-marital child\xe2\x80\x99s interest in acquiring the chance to inherit from his or her\nfather; and (3) the marital children\xe2\x80\x99s interest in reducing the number of persons claiming an interest\nin the man\xe2\x80\x99s estate.\nStarting in the late 1960\xe2\x80\x99s, the United States Supreme Court considered several cases\ninvolving the legal rights of non-marital children attempting to receive financial benefits based upon\ntheir connections to their biological fathers and their mothers. The holdings in those cases paved the\nway for the Supreme Court to conclude that non-marital children must be given the opportunity to\ninherit from their mothers and fathers. In response, the state enacted statutes setting out the\nconditions that have to be met in order for non-marital children to inherit from their mothers and\nfathers. The state legislatures either concluded that the mother-child relationship was established by\nthe process of birth or explicitly granted the non-marital child the right to inherit from his or her\nmother. The non-marital child\xe2\x80\x99s right to inherit from his or her father was not so easily resolved.\nThe states enacted statutes enumerating the conditions the non-marital child has to meet in order to\nestablish the father-child relationship for inheritance purposes. The following cases set out the\nparameters state intestacy statutes have to meet in order to survive constitutional challenges by and\non behalf of non-martial children.\n5.2.1\n\nThe Right to Inherit From Mothers\n\nIn light of the old adage, \xe2\x80\x9cmama\xe2\x80\x99s baby, papa\xe2\x80\x99s maybe,\xe2\x80\x9d it would appear that the non-marital\nchild\xe2\x80\x99s ability to inherit from his or her mother would be a foregone conclusion. Nonetheless, nonmartial children had to fight to be recognized as the heirs of their mothers. In fact, the early cases\ndealing with the rights of non-marital children focused upon the legal rights attached to the motherchild relationship. Getting courts to recognize that relationship was crucial to non-martial children\nwho wanted the opportunity to inherit from and through their mothers. Those initial cases involved\ntort law. The principles established in those cases paved the way for legislatures to acknowledge that\nnon-marital children have a right to be financially supported by their mothers. That right to support\nhas extended to a right to be considered an heir under the intestacy system. An example of such a\ncase follows.\n\n195\n\n\x0cLevy v. Louisiana, 391 U.S. 68 (1968)\nMr. Justice DOUGLAS delivered the opinion of the Court.\nAppellant sued on behalf of five illegitimate children to recover, under a Louisiana statute 30 for two\nkinds of damages as a result of the wrongful death of their mother: (1) the damages to them for the\nloss of their mother; and (2) those based on the survival of a cause of action which the mother had\nat the time of her death for pain and suffering. Appellees31 are the doctor who treated her and the\ninsurance company.\nWe assume in the present state of the pleadings that the mother, Louise Levy, gave birth to these\nfive illegitimate children and that they lived with her; that she treated them as a parent would treat\nany other child; that she worked as a domestic servant to support them, taking them to church every\nSunday and enrolling them, at her own expense, in a parochial school. The Louisiana District Court\ndismissed the suit. The Court of Appeal affirmed, holding that \xe2\x80\x98child\xe2\x80\x99 in Article 21315 means\n\xe2\x80\x98legitimate child,\xe2\x80\x99 the denial to illegitimate children of \xe2\x80\x98the right to recover\xe2\x80\x99 being based on morals\nand general welfare because it discourages bringing children into the world out of wedlock.\xe2\x80\x99 192 So.\n2d 193, 195. The Supreme Court of Louisiana denied certiorari. 250 La. 25, 193 So. 2d 530.\nThe case is here on appeal (28 U.S.C. s 1257(2)); and we noted probable jurisdiction, 389 U.S. 925,\n88 S.Ct. 290, 19 L.Ed. 2d 276, the statute as construed having been sustained against challenge under\nboth the Due Process and Equal Protection Clauses of the Fourteenth Amendment.\nWe start from the premise that illegitimate children are not \xe2\x80\x98nonpersons.\xe2\x80\x99 They are humans, live and\nhave their being.32 They are clearly \xe2\x80\x98persons\xe2\x80\x99 within the meaning of the Equal Protection Clause of\nthe Fourteenth Amendment.\nWhile a State has broad power when it comes to making classifications (Ferguson v. Skrupa, 372 U.S.\n726, 732, 83 S.Ct. 1028, 1032, 10 L.Ed. 2d 93), it may not draw a line which constitutes an invidious\ndiscrimination against a particular class. See Skinner v. State of Oklahoma, 316 U.S. 535, 541-542, 62\nS.Ct. 1110, 1113-1114, 86 L. Ed. 1655. Though the test has been variously stated, the end result is\nwhether the line drawn is a rational one. See Morey v. Doud, 354 U.S. 457, 465-466, 77 S.Ct. 1344,\n1349-1351, 1 L.Ed. 2d 1485.\nLa. Civ. Code Ann. Art. 2315 (Supp. 1967) (Every act whatever of man that causes damages to another obliges him by\nwhose fault it happened to repair it. \xe2\x80\x98The right to recover damages to property caused by an offense or quasi offense is a\nproperty right which, on the death of the oblige, is inherited by his legal, instituted, or irregular heirs, subject to the\ncommunity rights of the surviving spouse.\xe2\x80\x99 The right to recover all other damages caused by an offense or quasi offense,\nif the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the\nsurviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving\nfather and mother of the deceased, or either of them, if he left no spouse or surviving child; and (3) the surviving\nbrothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in\nwhose favor this right of action survives may also recover the damages which they sustained through the wrongful death\nof the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the\ndeath of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs,\nwhether suit has been instituted thereon by the survivor or not. \xe2\x80\x98As used in this article, the words \xe2\x80\x98child,\xe2\x80\x99 \xe2\x80\x98sister,\xe2\x80\x99 \xe2\x80\x98father,\xe2\x80\x99\nand \xe2\x80\x98mother\xe2\x80\x99 include a child, brother, sister, father, and mother, by adoption, respectively.\xe2\x80\x99\n31 The State of Louisiana was dismissed from the action and exceptions relating to the Charity Hospital, at which the\nmother was treated, were continued indefinitely. No appeal was taken with respect to either of those defendants.\n32 See Note, The Rights of Illegitimates Under Federal Statutes, 76 Harv. L. Rev. 337 (1962).\n30\n\n196\n\n\x0cIn applying the Equal Protection Clause to social and economic legislation, we give great latitude to\nthe legislature in making classifications. Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S. Ct. 461,\n465, 99 L. Ed. 563; Morey v. Doud, supra. 354 U.S., at 465-466, 77 S.Ct. at 1349-1351. Even so, would\na corporation, which is a \xe2\x80\x98person,\xe2\x80\x99 for certain purposes, within the meaning of the Equal Protection\nClause (Pembina Consol, Silver Mining & Milling Co. v. Pennsylvania, 125 U.S. 181, 188, 8 S.Ct. 737, 740,\n31 L.Ed. 650) be required to forgo recovery for wrongs done its interests because its incorporators\nwere all bastards? However that might be, we have been extremely sensitive when it comes to basic\ncivil rights (Skinner v. State of Oklahoma, supra, 316 U.S. at 541, 62 S. Ct., at 1113; Harper v. Virginia\nState Board of Elections, 383 U.S. 663, 669-670, 86 S.Ct. 1079, 1082-1083, 16 L.Ed. 2d 169) and have\nnot hesitated to strike down an invidious classifications even though it had history and tradition on\nits side. (citations omitted). The rights asserted here involve the intimate familial relationship\nbetween a child and his own mother. When the child\xe2\x80\x99s claim of damage for loss of his mother is in\nissue, why, in terms of \xe2\x80\x98equal protection,\xe2\x80\x99 should the tortfeasors go free merely because the child is\nillegitimate? Why should the illegitimate child be denied rights merely because of his birth out of\nwedlock? He certainly is subject to all the responsibilities of a citizen, including the payment of taxes\nand conscription under the Selective Service Act. How under our constitutional regime can he be\ndenied correlative rights which other citizens enjoy?\nLegitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on\nthe mother. These children, though illegitimate, were dependent on he; she cared for them and\nnurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they\nsuffered wrong in the sense that any dependent would.33\nWe conclude that it is invidious to discriminate against them when no action, conduct, or demeanor\nof theirs34 is possibly relevant to the harm that was done the mother.35\nReversed.\nNotes and Questions\n1. Once courts recognized and validated the parent-child relationship between mothers and their\nnon-marital children, it was not a stretch for non-marital children to be acknowledged as heirs of\ntheir mothers. As a result, several state legislatures made it clear that non-marital children have the\nright to inherit from their mothers. A sample statute follows:\n\nUnder Louisiana law both parents are under a duty to support their illegitimate children. La. Civ. Code Ann. Arts.\n239, 240 (1952).\n34 We can say with Shakespeare: \xe2\x80\x98Why bastard, wherefore base? When my dimensions are as well compact, My mind as\ngenerous, and my shape as true, As honest madam\xe2\x80\x99s issue? Why brand they us With base? with baseness? bastardy? base,\nbase?\xe2\x80\x99 King Lear, Act I, Scene 2.\n35 Under Louisiana\xe2\x80\x99s Workmen\xe2\x80\x99s Compensation Act (La. Rev. Stat. Ann. 23:1231, 23:1252, 23:1253 (1964) and\nillegitimate child, who is a dependent member of the deceased parent\xe2\x80\x99s family, may recover compensation for his death.\nSee Thompson v. Vestal Lumber & Mfg. Co., 208 La. 83, 22 So. 2d 842 (1945). Employers are entitled to recover from a\nwrongdoer workmen\xe2\x80\x99s compensation payments they make to the deceased\xe2\x80\x99s dependent illegitimate children. See Board of\nCommissioners, etc. v. City of New Orleans, 223 La. 199, 65 So. 2d 313 (1953); Thomas v. Matthews Lumber Co., 201 So. 2d 357\n(Ct. App. La. 1967).\n33\n\n197\n\n\x0cOhio Revised Code Annotated\n2105.17 Capability of children born out of wedlock as to inheritance\nChildren born out of wedlock shall be capable of inheriting or transmitting inheritance from\nand to their mother, and from and to those from whom she may inherit, or to whom she\nmay transmit inheritance, as if born in lawful wedlock.\n2. Are there any legitimate reasons why non-marital children should not be given the opportunity to\ninherit from their mothers? What factors should go into making that determination? Are there any\nlimitations that should be placed on the ability of non-marital children to inherit from their mothers?\nSee Byrd N. Trennor, 811 N.E.2d 549 (Ohio App. 2 Dist. 2004)(justifying the different in treatment,\nfor inheritance purposes, of non-marital children of intestate fathers and non-martial children of\nintestate mothers).\n3. The Levy court emphasized the need to prevent tortfeasors from injuring or killing parents of nonmarital children without liability. In light of that concern, is the decision helpful to a non-marital\nchild attempting to inherit from his or her mother? What reasoning in the case supports a nonmarital child\xe2\x80\x99s right to inherit under the intestacy system?\n5.2.2\n\nThe Right to Inherit From Fathers\n\nA child does not have the right to inherit from a parent. However, if the intestacy system\npermits one class of children to inherit, that right must be provided to all classes of children. Thus, it\nis clear that a state statute that prohibits the non-marital child from inheriting from his or her father\nwill not pass constitutional muster. Hence, the question becomes: How much can a state limit a nonmarital child\xe2\x80\x99s right to inherit from his or her father. As the following cases indicate, the state has to\ngive the non-marital child a plausible opportunity to inherit from his or her parent.\n\nLalli v. Lalli, 439 U.S. 259 (1978)\nMr. Justice POWELL announced the judgment of the Court and delivered an opinion, in which THE\nCHIEF JUSTICE and Mr. Justice STEWART join.\nThis case presents a challenge to the constitutionality of \xc2\xa7 4-1.2 of New York\xe2\x80\x99s Estates, Powers, and\nTrusts Law, which requires illegitimate children who would inherit from their fathers by intestate\nsuccession to provide a particular form of proof of paternity. Legitimate children are not subject to\nthe same requirement.\nAppellant Robert Lalli claims to be the illegitimate son of Mario Lalli who died intestate on January\n7, 1973, in the State of New York, Appellant\xe2\x80\x99s mother who died in 1968, never was married to\nMario. After Mario\xe2\x80\x99s widow, Rosamond Lalli, was appointed administratrix of her husband\xe2\x80\x99s estate,\nappellant petitioned the Surrogate\xe2\x80\x99s Court for Westchester County for a compulsory accounting,\nclaiming that he and his sister Maureen Lalli were entitled to inherit from Mario as his children.\nRosamond Lalli opposed the petition. She argued that even if Robert and Maureen were Mario\xe2\x80\x99s\nchildren, they were not lawful distributes of the estate because they had failed to comply with \xc2\xa7 41.2, which provides in part:\n198\n\n\x0c\xe2\x80\x9cAn illegitimate child is the legitimate child of his father so that he and his issue inherit from\nhis father if a court of competent jurisdiction has, during the lifetime of the father, made an\norder of filiation declaring paternity in a proceeding instituted during the pregnancy of the\nmother or within two years form the birth of the child.\xe2\x80\x9d\nAppellant conceded that he had not obtained an order of filiation during the putative father\xe2\x80\x99s\nlifetime. He contended, however, that \xc2\xa7 4-1.2, by imposing this requirement, discriminated against\nhim on the basis of his illegitimate birth in violation of the Equal Protection Clause of the\nFourteenth Amendment. Appellant tendered certain evidence of his relationship with Mario Lalli,\nincluding a notarized document in which Lalli, in consenting appellant\xe2\x80\x99s marriage, referred to him as\n\xe2\x80\x9cmy son,\xe2\x80\x9d and several affidavits by persons who stated that Lalli had acknowledged and often that\nRobert and Maureen were his children.\nThe Surrogate\xe2\x80\x99s Court noted that \xc2\xa7 4-1.2 had previously, and unsuccessfully, been attacked under the\nEqual Protection Clause. After reviewing recent decisions of this Court concerning discrimination\nagainst illegitimate children, particularly Labine v. Vincent, 401 U.S. 532, 91 S. Ct. 1017 (1971), and\nthree New York decisions affirming the constitutionality of the statute, the court ruled that appellant\nwas properly excluded as a distribute of Lalli\xe2\x80\x99s estate and therefore lacked status to petition for a\ncompulsory accounting (citations omitted).\nOn direct appeal the New York Court of Appeals affirmed. In re Lalli, 340 N.E. 2d 721 (1975). It\nunderstood Labine to require the State to show no more than that \xe2\x80\x9cthere is a rational basis for the\nmeans chosen by the Legislature for the accomplishment of a permissible State objective.\xe2\x80\x9d 340\nN.E.2d, at 723. After discussing the problems of proof peculiar to establishing paternity, as\nopposed to maternity, the court concluded that the State was constitutionally entitled to require a\njudicial decree during the father\xe2\x80\x99s lifetime as the exclusive form of proof of paternity.\nOn remand, the New York Court of Appeals, with two judges dissenting, adhered to is former\ndisposition. In re Lalli, 371 N.E.2d 481 (1977). It acknowledged that Trimble contemplated a\nstandard of judicial review demanding more than \xe2\x80\x9ca mere finding of some remote rational\nrelationship between the statute and a legitimate State purpose,\xe2\x80\x9d though less than strictest scrutiny.\n(citations omitted) Finding \xc2\xa7 4-1.2 to be \xe2\x80\x9csignificantly and determinatively different\xe2\x80\x9d from the\nstatute overturned in Trimble, the court ruled that the New York law was sufficiently related the\nState\xe2\x80\x99s interest in \xe2\x80\x9c\xe2\x80\x98the orderly settlement of estates and the dependability of titles to property\npassing under intestacy laws,\xe2\x80\x9d\xe2\x80\x99 to meet the requirements of equal protection. Quoting Trimble, supra,\n430 U.S., at 771, 97 S. Ct., at 1465, protection. (citation omitted).\nAppellant appealed the Court of Appeals\xe2\x80\x99 decision to this Court. While that case was pending here,\nwe decided Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459 (1977). Because the issues in these two\ncases were similar in some respects, we vacated and remanded to permit further consideration in\nlight of Trimble. Lalli v. Lalli, 431 U.S. 911, 97 S.Ct. 2164 (1977).\nAppealing again sought review here, and we noted probably jurisdiction. 435 U.S. 921, 98 S.Ct. 1482\n(1978). We now affirm.\n\n199\n\n\x0cII\nWe begin our analysis with Trimble. At issue in that case was the constitutionality of an Illinois\nstatute providing that a child born out of wedlock could inherit from his interstate father only if the\nfather had \xe2\x80\x9cacknowledged\xe2\x80\x9d the child and the child had been legitimated by the intermarriage of the\nparents. The appellant in Trimble was a child born out of wedlock whose father had neither\nacknowledged her nor married her mother. He had, however, been found to be her father in a\njudicial decree ordering him to contribute to her support. When the father died intestate, the child\nwas excluded as a distributee because the statutory requirements for inheritance had not been met.\nWe concluded that the Illinois statute discriminated against illegitimate children in a manner\nprohibited by the Equal Protection Clause. Although, as decided in Mathews v. Lucas, 427 U.S. 495,\n506, 96 S.Ct. 2755, 2762 (1976), and reaffirmed in Trimble, supra, 430 U.S., at 767, 97 S.Ct., at 1464,\nclassifications based on illegitimacy are not subject to \xe2\x80\x9cstrict scrutiny,\xe2\x80\x9d they nevertheless are invalid\nunder the Fourteenth Amendment if they are not substantially related to permissible state interests.\nUpon examination, we found that the Illinois law failed that test.\nTwo state interests were proposed which the statute was said to foster: the encouragement of\nlegitimate family relationships and the maintenance of an accurate and efficient method of disposing\nof an intestate decedent\xe2\x80\x99s property. Granting that the State was appropriately concerned with the\nintegrity of the family unite, we viewed the statute as bearing \xe2\x80\x9conly the most attenuated relationship\nto the asserted goal.\xe2\x80\x9d Trimble, supra, at 768, 97 S.Ct., at 1464. We again rejected the argument that\n\xe2\x80\x9cpersons will shun illicit relations because the offspring may not one day reap the benefits\xe2\x80\x9d that\nwould accrue to them were they legitimate. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173,\n92 S.Ct. 1400, 1405 (1972). The statute therefore was not defensible as an incentive to enter\nlegitimate family relationships.\nIllinois\xe2\x80\x99 interest in safeguarding the orderly disposition of property at death was more relevant to the\nstatutory classification. We recognized that devising \xe2\x80\x9can appropriate legal framework\xe2\x80\x9d in the\nfurtherance of that interest \xe2\x80\x9cis a matter particularly within the competence of the individual States.\xe2\x80\x9d\nTrimble, supra, 430 U.S., at 771, 97 S.Ct., at 1465. An important aspect of that framework is a\nresponse to the often difficult problem of providing the paternity of illegitimate children and the\nrelated danger of spurious claims against intestate estates. These difficulties, we said, \xe2\x80\x9cmight justify a\nmore demanding standard for illegitimate children claiming under their fathers\xe2\x80\x99 estates than that\nrequired either for illegitimate children claiming under their mothers\xe2\x80\x99 estates or for legitimate\nchildren generally.\xe2\x80\x9d Trimble, supra, at 770, 97 S.Ct., at 1465.\nThe Illinois statute, however, was constitutionally flawed because, by insisting upon not only an\nacknowledgment by the father, but also the marriage of the parents, it excluded \xe2\x80\x9cat least some\nsignificant categories of illegitimate children of intestate men [whose] inheritance rights can be\nrecognized without jeopardizing the orderly settlement of estates or the dependability of titles to\nproperty passing under intestacy laws.\xe2\x80\x9d Id., at 771, 97 S.Ct. at 1465. We concluded that the Equal\nProtection Clause required that a statute placing exceptional burdens on illegitimate children in the\nfurtherance of proper sate objectives must be more \xe2\x80\x9c\xe2\x80\x98carefully tuned to alternative considerations\xe2\x80\x9d\xe2\x80\x99\nthan was true of the broad disqualification in the Illinois law (citations omitted).\nIII\n200\n\n\x0cThe New York statute, enacted in 1865, was intended to soften the rigors of previous law which\npermitted illegitimate children to inherit only from their mothers. See infra, at 525. By lifting the\nabsolute bar to paternal inheritance, \xc2\xa7 4-1.2 tended to achieve its desired effect. As in Trimble,\nhowever, the question before us is whether the remaining statutory obstacles to inheritance by\nillegitimate children can be squared with the Equal Protection Clause.\nA.\nAt the outset we observed that \xc2\xa7 4-1.2 is different in importance respects from the statutory\nprovision overturned in Trimble. The Illinois statute required, in addition to the father\xe2\x80\x99s\nacknowledgment of paternity, the legitimation of the child through the intermarriage of the parents\nas an absolute precondition to inheritance. This combination of requirements eliminated \xe2\x80\x9cthe\npossibility of middle ground between the extremes of complete exclusion and case-by-case\ndetermination of paternity.\xe2\x80\x9d Trimble, 430 U.S., at 770-771, 97 S.Ct., at 1465. As illustrated by the\nfacts in Trimble, even a judicial declaration of paternity was insufficient to permit inheritance.\nUnder \xc2\xa7 4-1.2, by contrast, the marital status of the parents is irrelevant. The single requirement at\nissue here is an evidentiary one-that the paternity of the father be declared in a judicial proceeding\nsometime before his death. The child need not have been legitimated in order to inherit from his\nfather. Had the appellant in Trimble been governed by \xc2\xa7 4-1.2. The Court of Appeals disclaimed\nthat the purpose of the statute, \xe2\x80\x9ceven in small part, was to discourage illegitimacy, to mold human\nconduct or to set societal norms.\xe2\x80\x9d In re Lalli, supra, 371 N.E.2d, at 483. The absence in \xc2\xa7 4-1.2 of\nany requirement that the parents intermarry or otherwise legitimate a child born out of wedlock and\nour review of the legislative history of the statute confirm this view.\nOur inquiry, therefore, is focused narrowly. We are asked to decide whether the discrete procedural\ndemands that \xc2\xa7 4-1.2 places on illegitimate children bear an evident and substantial relation to the\nparticular state interests this statute is designed to serve.\nB.\nThe primary state goal underlying the challenged aspects of \xc2\xa7 4-1.2 is to provide for the just and\norderly disposition of property of death. We long have recognized that this is an area with which\nthe States have an interest of considerable magnitude. Trimble, supra 430 U.S., at 771, 97 S.Ct., at\n1466.\nThis interest is directly implicated in paternal inheritance by illegitimate children because of the\npeculiar problems of proof that are involved. Establishing maternity is seldom difficult. As one\nNew York Surrogate\xe2\x80\x99s Court has observed: \xe2\x80\x9c[T]he birth of the child is a recorded or registered event\nusually taking place in the presence of others. In most cases the child remains with the mother and\nfor a time is necessarily reared by her. That the child is the child of a particular woman is rarely\ndifficult to prove.\xe2\x80\x9d In re Ortiz, 60 Misc.2d 756, 761,303 N.Y.S.2d 806, 812 (1969). Proof of\npaternity, by contrast, frequently is difficult when the father is not part of formal family unit. \xe2\x80\x9cThe\nputative father often goes his way unconscious of the birth of a child. Even if conscious, he is very\noften totally unconcerned because of the absence of any ties to the mother. Indeed the mother may\nnot know who is responsible for her pregnancy.\xe2\x80\x9d (citations omitted)\n\n201\n\n\x0cThus, a number of problems arise that counsel against treating illegitimate children identically to all\nothers heirs of an intestate father. These were the subject of a comprehensive study by the\nTemporary State Commission on the Modernization, Revision and Simplification of the Law of\nEstates. This group, known as the Bennett Commission, consisted of individuals experienced in the\npractical problems of estate administration. (citations omitted). The commission issued its report\nand recommendations to the legislature in 1965. See Fourth Report of the Temporary State\nCommission on the Modernization, Revision and Simplification of the Law of Estates. This group,\nknown as the Bennett Commission, consisted on individuals experienced in the practical problems\nof estate administration. (citations omitted).\nThe Commission issued its report and\nrecommendations to the legislature in 1965. See Fourth Report of the Temporary State Commission\non the Modernization, Revision and Simplification of the Law of Estates, Legis.Doc. No. 19(1965)\n(hereinafter Commission Report). The statute now codified as \xc2\xa7 4-1.2 was included.\nAlthough the overarching purpose of the proposed statute was \xe2\x80\x9cto alleviate the plight of the\nillegitimate child,\xe2\x80\x9d the Bennett Commission considered it necessary to impose the strictures of \xc2\xa7 41.2 in order to mitigate serious difficulties in the administration of the estates of both testate and\nintestate decedents. Commission Report 37.\nEven where an individual claiming to be the illegitimate child of a deceased man makes himself\nknown, the difficulties facing an estate are likely to persist. Because of the particular problems of\nproof, spurious claims may be difficult to expose. The Bennett Commission therefore sought to\nprotect \xe2\x80\x9cinnocent adults and those rightfully interested in their estates from fraudulent claims of\nheirship and harassing litigation instituted by those seeking to establish themselves as illegitimated\nheirs.\xe2\x80\x9d Commission Report 265.\nC.\nAs the State\xe2\x80\x99s interests are substantial, we now consider the means adopted by New York to further\nthese interests. In order to avoid the problems described above, the Commission recommended a\nrequirement designed to ensure the accurate resolution of claims of paternity and to minimize the\npotential for disruption of estate administration. Accuracy is enhanced by placing paternity disputes\nin a judicial forum during the lifetime of the father. As the New York Court of Appeals observed in\nits first opinion in this case, the \xe2\x80\x9cavailability [of the putative father] should be a substantial factor\ncontributing to the reliability of the fact-finding process.\xe2\x80\x9d In re Lalli, 340 N.E. 2d, at 724. In\naddition, requiring that the order be issued during the father\xe2\x80\x99s lifetime permits a man to defend his\nreputation against \xe2\x80\x9cunjust accusations in paternity claims,\xe2\x80\x9d which was a secondary purpose of \xc2\xa7 41.2. Commission Report 266.\nThe administration of an estate will be facilitated, and the possibility of delay and uncertainty\nminimized, where the entitlement of an illegitimate child to notice and participation is a matter of\njudicial record before the administration commences. Fraudulent assertions of paternity will be\nmuch less likely to succeed, or even to arise, where the proof is put before a court of law at a time\nwhen the putative father is available to respond, rather than first brought to light when the\ndistribution of the assets of an estate is in the offing.\nAppellant contends that \xc2\xa7 4-1.2, like the statute at issue in Trimble, excludes \xe2\x80\x9csignificant categories of\nillegitimate children\xe2\x80\x9d who could be allowed to inherit \xe2\x80\x9cwithout jeopardizing the orderly settlement\xe2\x80\x9d\nof their intestate fathers\xe2\x80\x99 estates. Trimble, 430 U.S., at 771, 97 S.Ct., at 1465. He urges that those in\nhis position-\xe2\x80\x9cknown\xe2\x80\x9d illegitimate children who, despite the absence of an order of filiation obtained\n202\n\n\x0cduring their fathers\xe2\x80\x99 lifetimes, can present convincing proof of paternity-cannot rationally be denied\ninheritance as they pose none of the risks \xc2\xa7 4-1.2 was to minimize.\nWe do not question that there will be some illegitimate children who would be able to establish their\nrelationship to their deceased fathers without serious disruption of the administration of estates and\nthat, as applied to such individuals, \xc2\xa7 4-1.2 appears to operate unfairly. But few statutory\nclassifications are entirely free from the criticism that they sometimes produce inequitable results.\nOur inquiry under the Equal Protection Clause does not focus on the abstract \xe2\x80\x9cfairness\xe2\x80\x9d of a state\nlaw, but on whether the statute\xe2\x80\x99s rationality contemplated by the Fourteenth Amendment.\nThe Illinois statute in Trimble was constitutionally unacceptable because it effected a total statutory\ndisinheritance of children born out of wedlock who were not legitimated by the subsequent marriage\nof their parents. The reach of the statute was far in excess of its justifiable purposes. Section 4-1.2\ndoes not share this defect. Inheritance is barred only where there has been a failure to secure\nevidence of paternity during the father\xe2\x80\x99s lifetime in the manner prescribed by the State. This is not a\nrequirement that inevitably disqualifies an unnecessarily large number of children born out of\nwedlock.\nThe New York courts have interpreted \xc2\xa7 4-1.2 liberally and in such a way as to enhance its utility to\nboth father and child without sacrificing its strength as a procedural prophylactic. For example, a\nfather of illegitimate children who is willing to acknowledge paternity can waive his defenses in a\npaternity proceeding or even institute such a proceeding himself. (citations omitted). In addition,\nthe courts have excused \xe2\x80\x9ctechnical\xe2\x80\x9d failures by illegitimate children to comply with the statute in\norder to prevent unnecessary injustice. e.g., In re Niles, 53 A.D.2d 983, 385 N.Y.S.2d 876 (1976),\nappeal denied, 360 N.E.2d 1109 (1977) filiation order may be signed nunc pro tunc to relate back to\nperiod prior to father\xe2\x80\x99s death when court\xe2\x80\x99s factual finding of paternity had been made); In re Kennedy,\n392 N.Y. S.2d 365, 367 (Surr.Ct.1977) (judicial support order treated as \xe2\x80\x9ctantamount to an order of\nfiliation,\xe2\x80\x9d even though paternity was not specifically declared therein).\nAs the history of \xc2\xa7 4-1.2 clearly illustrates, the New York Legislature desired to \xe2\x80\x9cgrant to\nillegitimates in so far as practicable rights of inheritance on a par with those enjoyed by legitimate\nchildren,\xe2\x80\x9d while protecting the important state interests we have described. Commission Report\n265. Section 4-1.2 represents a carefully considered legislative judgment as to how this balance best\ncould be achieved.\nEven if, as Mr. Justice BRENNAN believes, \xc2\xa7 4-1.2 could have been written somewhat more\nequitably, it is not the function of a court \xe2\x80\x9cto hypothesize independently on the desirability or\nfeasibility of any possible alternative[s]\xe2\x80\x9d to the statutory scheme formulated by New York. Mathews\nv. Lucas, 427 U.S., at 515, 96 S.Ct., at 2767. \xe2\x80\x9cThese matters of practical judgment and empirical\ncalculation are for the [the State]\xe2\x80\xa6In the end, the precise accuracy of [the State\xe2\x80\x99s] calculations is not\na matter of specialized judicial competence; and we have no basis to question their detail beyond the\nevident consistency and substantiality.\xe2\x80\x9d Id., at 515-516, 96 S.C. at 2767.\nThe \xe2\x80\x9cformal acknowledgement\xe2\x80\x9d contemplated by Trimble is such as would minimize post-death\nlitigation, i.e., a regularly prescribed, legally recognized method of acknowledging paternity. It is\nthus plain that footnote 14 in Trimble does not sustain the dissenting opinion. Indeed, the document\nrelied upon by the dissent is not an acknowledgment of paternity at all. It is a simple \xe2\x80\x9cCertificate of\n203\n\n\x0cconsent\xe2\x80\x9d that apparently was required at the time by New York for the marriage of minor. It\nconsists of one sentence:\n\xe2\x80\x9cTHIS IS TO CERTIFY that I, who have hereto subscribed my name, do hereby consent\nthat Robert Lalli who is my son and who is under the age of 21 years, shall be united in\nmarriage to Janice Bivins by any minister of the gospel or other person authorized by law to\nsolemnize marriages.\xe2\x80\x9d App. A14.\nMario Lalli\xe2\x80\x99s signature to this document was acknowledge by a notary public, but the certificate\ncontains no oath or affirmation as to the truth of its contents. The notary did no more than confirm\nthe identity of Lalli. Because the certificate was executed for the purpose of giving consent to\nmarry, not of proving biological paternity, the meaning of the words \xe2\x80\x9cmy son\xe2\x80\x9d is ambiguous. One\ncan readily imagine that had Robert Lalli\xe2\x80\x99s half-brother, who was not Mario\xe2\x80\x99s son but who took the\nsurname Lalli and lived as a member of his household, sought permission to marry, Mario might\nalso have referred to him as \xe2\x80\x9cmy son\xe2\x80\x9d on a consent certificate.\nThe important state interests of safeguarding the accurate and orderly disposition of property at\ndeath, emphasized in Trimble and reiterated in our opinion today, could be frustrated easily if there\nwere a constitutional rule that any notarized but unsworn statement identifying an individual as a\n\xe2\x80\x9cchild\xe2\x80\x9d must be accepted as adequate proof of paternity regardless of the context in which the\nstatement was made.\nWe concluded that the requirement imposed by \xc2\xa7 4-1.2 on illegitimate children who would inherit\nfrom their fathers is substantially related to the important state interests the statute is intended to\npromote. We therefore find no violation of the Equal Protection Clause.\nThe judgment of the New York Court of Appeals is affirmed.\nNotes and Questions\n1. How did the Court distinguish the statute in Lalli from the statute in Trimble? Does the distinction\njustify the different outcomes of the cases?\n2. Was there another way for the state to carry out its interest without placing a burden on the\nmother of the non-marital child(ren)?\n3. From a public policy perspective, what are the pros and cons of permitting non-marital children\nto inherit equally with martial children?\n4. For a complete analysis of the United States Supreme Court cases dealing with the rights of nonmarital children See Lilli Mostofi, Legitimizing The Bastard: The Supreme Court\xe2\x80\x99s Treatment of the Illegitimate\nChild, 14 L.J. Contemp. Legal Issues 453 (2004); Laurence C. Nolan, \xe2\x80\x9cUnwed Children and Their Parents\nBefore the United States Supreme Court from Levy to Michael H: Unlikely Participants in Constitutional\nJurisprudence, 28 Cap. U.L. Rev.1 (1999).\nEven after the United States Supreme Court clearly mandated that non-marital children be\ngiven a chance to inherit from their fathers, as the next cases demonstrates, the litigation continues.\n204\n\n\x0cPhillips v. Ledford, 590 S.E.2d 280 (N.C. App. 2004)\nTIMMONS-GOODSON, J.\nGwendolyn W. Phillips (\xe2\x80\x9cplaintiff\xe2\x80\x9d) appeals from a trial court dismissal granted pursuant to N.C.\nGen. Stat. \xc2\xa7 1A-1 Rule 12(b)(6). For the reasons stated herein, we affirm the trial court\xe2\x80\x99s decision.\nThe facts of the case are as follows. Benjamin Jay Owenby (\xe2\x80\x9cdecedent\xe2\x80\x9d) died intestate in Buncombe\nCounty, North Carolina on 29 January 2002. At the time of his death, decedent was not married,\nnot survived by parents and had no children other than plaintiff. Plaintiff is the natural and\nbiological daughter of decedent and Nancy Wilson Waldron. Decedent and Waldron were never\nmarried.\nOn 11 March 2002, the Buncombe County Estate Division opened decedent\xe2\x80\x99s estate. Marilyn\nOwenby Ledford and George Richard Owenby (\xe2\x80\x9cdefendants\xe2\x80\x9d), were appointed co-administrators\nfor the estate. Defendants are decedent\xe2\x80\x99s siblings.\nDecedent had seven siblings, three of whom predeceased him. Two of the deceased siblings had\nchildren and the third deceased sibling had no children. The four surviving siblings and the children\nof the deceased siblings were named in the Application of Letters of Administration as the\ndecedent\xe2\x80\x99s heirs and those persons entitled to share in the decedent\xe2\x80\x99s estate, and are also defendants\nin this action.\nBorn on 19 April 1972, plaintiff was not told that she was decedent\xe2\x80\x99s daughter until several years\nprior to decedent\xe2\x80\x99s death. After decedent was told that he was plaintiff\xe2\x80\x99s biological father, plaintiff\nand decedent were tested by a DNA genetic paternity testing laboratory which determined to a\ngreater than 99% level of certainty that decedent could not be excluded as the father of the plaintiff.\nAfter the DNA testing, plaintiff and decedent developed a parent-child relationship. Decedent\nacknowledged to his family, friends, and the general public that he was plaintiff\xe2\x80\x99s father.\nFurthermore, decedent\xe2\x80\x99s siblings and their families were aware that plaintiff was decedent\xe2\x80\x99s\ndaughter. However, decedent never legitimated plaintiff, and decedent was never adjudicated to be\nplaintiff\xe2\x80\x99s father during his lifetime.\nOn 17 June 2002, plaintiff filed this action pursuant to N.C. Gen. Stat. \xc2\xa7 1-253, seeking a declaratory\njudgment that she is the sole heir of the decedent. Defendants filed a motion to dismiss which was\ngranted, and an order of dismissal was entered on 17 September 2002. It is from this order that\nplaintiff now appeals.\nPlaintiff\xe2\x80\x99s sole assignment of error is that the trial court improvidently granted defendants\xe2\x80\x99 motion\nto dismiss because the statute which stood as grounds for dismissal, N.C. Gen. Stat. \xc2\xa7 29-19, as\napplied violates plaintiff\xe2\x80\x99s right to due process and equal protection under the North Carolina and\nUnited States Constitutions. Plaintiff believes that the statute lacks a substantial and legitimate\nrelationship to the particular state interest that it purports to protect, and therefore is\nunconstitutional.\n\n205\n\n\x0cThe first step in this Court\xe2\x80\x99s analysis is to consider the trial court\xe2\x80\x99s treatment of the motion to\ndismiss. On a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil\nProcedure, the standard of review is \xe2\x80\x9c\xe2\x80\x99whether, as a matter of law, the allegations of the complaint,\ntreated as true, are sufficient to state a claim upon which relief may be granted under some legal\ntheory.\xe2\x80\x99 (citations omitted). \xe2\x80\x9cThe complaint must be liberally construed, and the court should not\ndismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of\nfacts to support his claim which would entitle him to relief.\xe2\x80\x9d (citations omitted). In the present case,\nthis Court must consider whether plaintiff\xe2\x80\x99s complaint, treated as if all the allegations therein are\ntrue, would meet the statutory requirements for an illegitimate child to inherit from her father\nthrough this state\xe2\x80\x99s intestacy laws. We hold that plaintiff\xe2\x80\x99s complaint does not meet this\nrequirement.\nThe statute governing succession by, through and from illegitimate children states in pertinent part:\nFor purposes of intestate succession, an illegitimate child shall be entitled to take by, through\nand from: (1) any person who has been finally adjudged to be the father of such child\xe2\x80\xa6; (2)\nany person who has acknowledged himself during his own lifetime and the child\xe2\x80\x99s lifetime to\nbe the father of such child in a written instrument executed or acknowledged before a\ncertifying officer\xe2\x80\xa6and filed during his own lifetime and the child\xe2\x80\x99s lifetime in the office of\nthe clerk of superior court of the county where either he or the child resides.\nN.C. Gen. Stat. \xc2\xa7 29-19(b)(1) and (2) (2001). \xe2\x80\x9cAbsent the statute, an illegitimate child has no right to\ninherit from his or her putative father.\xe2\x80\x9d Hayes v. Dixon, 83 N.C. App. 52, 54, 348 S.E. 2d 609, 610\n(1986) citing Herndon v. Robinson, 57 N.C. App. 318, 291 S.E. 2d 305 (1982).\nIn her complaint, plaintiff asserts the following pertinent allegations:\n17. Several years prior to the death of the Decedent, Benjamin Owenby:\na. Plaintiff learned that the Decedent was her father;\nb. Plaintiff and the Decedent developed a close and loving relationship;\nc. Decedent acknowledged and held to his family, his friends and the general public that he was the\nfather of the Plaintiff;\nd. Decedent\xe2\x80\x99s siblings and their families were aware that the Plaintiff was the daughter of the\nDecedent.\n18. Several years prior to the death of the decedent, the Plaintiff and the [D]ecedent were tested by a\ngenetic paternity testing laboratory and it was determined to a greater than 99% level of certainty\nthat the [D]ecedent could not be excluded as the father of the child.\nPlaintiff\xe2\x80\x99s complaint did not include any claim that decedent was adjudged to be her father, or that\ndecedent acknowledged himself to be plaintiff\xe2\x80\x99s father in a written instrument which was duly\nexecuted and filed. Although the North Carolina Supreme Court has recognized DNA profile\ntesting to be generally admissible evidence as a reliable technique within the scientific community,\n206\n\n\x0c(citations omitted) a positive DNA test is not enumerated in the statute as a method of meeting the\nrequirements to legitimate a child.\n\xe2\x80\x9cThe statute mandates what at times may create a harsh result. It is not, however, for the courts but\nrather the legislature to effect any change.\xe2\x80\x9d Hayes, 83 N.C. App. at 54, 348 S.E. 2d at 610. The\nallegations set forth in plaintiff\xe2\x80\x99s complaint do not satisfy the statutory requirement for an\nillegitimate child to inherit through the state\xe2\x80\x99s intestacy laws. Therefore, these allegations, even\nwhen treated as true, are not sufficient to state a claim upon which relief may be granted. For this\nreason, we conclude that the trial court properly granted defendants\xe2\x80\x99 motion to dismiss.\nPlaintiff bases her appeal of the Rule 12(b)(6) dismissal on an argument that N.C. Gen. Stat. \xc2\xa7 29-19\nviolates her equal protection and due process rights as afforded her by the North Carolina and\nUnited States Constitutions. Because we have determined that plaintiff\xe2\x80\x99s complaint does not state a\nclaim upon which relief can be granted, we need not address whether the statute violates plaintiff\xe2\x80\x99s\nrights under the North Carolina and United States Constitutions. (citations omitted). \xe2\x80\x9c[T]he courts\nof this State will avoid constitutional questions, even if properly presented, where a case may be\nresolved on other grounds\xe2\x80\x9d). The trial court properly granted defendants\xe2\x80\x99 motion to dismiss and\ntherefore we decline to address the constitutional issues presented in this appeal.\nNo error.\nNotes and Questions\n1. Would the North Carolina statute have survived a challenged based upon the United States\nConstitution?\n2. Is the result in this case against public policy? How should the statute be amended to serve the\nbest interests of the state and the non-marital child?\nClass Discussion Tool\nTen years ago, only 11% of the children born in the State of Morality were born to persons\nwho were unmarried. Thus, non-marital children are not included in the definition of children under\nthe State\xe2\x80\x99s intestacy statute. In fact, the inheritance rights of non-marital children are not addressed\nanywhere in the State\xe2\x80\x99s intestacy statute. Today, in the State, 32% of the children born are the\nproducts of non-marital relationships. Several non-martial children recently filed actions in the\nprobate court to have the right to inherit under the State\xe2\x80\x99s intestacy laws. Consequently, the State\nwould like to amend its current intestacy statute to address the needs of non-marital children.\nHowever, many of the current legislators are up for re-election, and the majority of the voters polled\nthink that it is immoral to have a child without the benefit of marriage. The State Senate has retained\nyour firm for assistance in drafting an appropriate statute. What components should the statute\ninclude? What are concerns that must be considered prior to drafting the statute?\nThe Need For Information\nThe Plaintiff in the Ledford case appeared to make every effort to be recognized as the\ndecedent\xe2\x80\x99s child prior to his death. However, since she did not strictly comply with the mandates of\n207\n\n\x0cthe statute, she was not given the opportunity to inherit from her biological father. The intestacy\nsystem is set up to give preference to the decedent\xe2\x80\x99s children. Nonetheless, the Plaintiff in the\nLedford case lost her inheritance to her father\xe2\x80\x99s siblings and his nieces and nephews. It is unlikely that\nthe decedent would have wanted his estate distributed in that manner. The facts of this case illustrate\nthe problem faced by numerous non-marital children. It is not enough to give non-marital children\nthe opportunity to inherit from their fathers if they do not understand the steps necessary to take\nadvantage of that opportunity.\nIn order to make informed decisions, parents of non-marital children should know all of the\nfacts and rules. State intestacy laws can be confusing. For instance, many low-income women may\nbelieve that if the father\'s name is on the birth certificate, the non-marital child has the right to\ninherit from his or her father. As a result, such women do not bother to file paternity actions as\nrequired by most state statutes. In reality, only two states, Arkansas and Georgia, deem the father\'s\nname on the birth certificate as sufficient proof of paternity to permit a non-marital child to inherit\nfrom his or her father. In both states, the father\'s name cannot be placed on the birth certificate\nwithout his knowledge and consent.\nWomen who live in common law marriage jurisdictions are also disadvantaged by lack of\naccess to information. Many women living in those states believe that if they live with a man for a\nlong period of time, they are automatically deemed to be married. Those women do not realize that,\nif they do not take the steps necessary to have their relationships legally recognized as common law\nmarriage, their children are considered non-marital children. Consequently, the women do not take\nthe actions necessary to ensure that their children will have the legal right to inherit from their\nfathers.\nNon-marital children often lose the right to inherit from their fathers because of the\nignorance of their parents. In the probate arena, knowledge is power; therefore, states should take\nsteps to make sure that parents understand the steps they need to take in order to enable non-marital\nchildren to inherit from their fathers. There are actions states can take to get the necessary\ninformation to the public. For instance, states could run public service announcements on local\ntelevision and radio stations. Public service announcements could inform women about the legal\nconsequences of having a child out of wedlock and educate parents about the steps they must take\nunder the state\'s intestacy statute to make the non-marital child eligible to inherit from his or her\nfather. States could also require organizations that provide services to low-income women to\ndistribute pamphlets containing information about the state\'s intestacy laws. The pamphlets could\ninclude a checklist of the requirements for a non-marital child to earn the right to inherit from his or\nher father. In order to guarantee fairness, states should arm parents of non-marital children with the\ninformation necessary to protect the inheritance rights of those children.\nNotes and Questions\n1. What steps can state legislatures take to ensure that the families of non-martial children are\ninformed about their rights and responsibilities?\n2. Should mothers have the right to waive the non-marital child\xe2\x80\x99s right to inherit?\n\n208\n\n\x0cClass Discussion Tool\nLaMeesha had an affair with Melvin, a prominent member of the community. As a result of\nthat liaison, LaMeesha conceived a child. Prior to the birth of the child, LaMeesha and Melvin\nsigned a contract. LaMeesha agreed not to file a claim for child support. In exchange for that\npromise, Melvin promised to pay LaMeesha $700 per month to provide for the child\xe2\x80\x99s financial\nneeds. After the child, Cameron, was born Melvin made the promised payments. When Cameron\nwas fourteen years old, Melvin died intestate, survived by his wife, Linda and distant cousins. The\nstate had the following statute: \xe2\x80\x9cA child born out of wedlock may not inherit from or through the\nchild\xe2\x80\x99s father, the other children of the father, or any parental kinship, unless: A court of competent\njurisdiction has entered an order declaring the child to be legitimate; a court of competent\njurisdiction has otherwise entered a court order establishing paternity; the father has signed the birth\ncertificate of the child; the father has executed a sworn statement signed by him attesting to the\nparent-child relationship; or there is other clear and convincing evidence that the child is the child of\nthe father.\xe2\x80\x9d Does the contract satisfy the statutory requirements? Is the contract enforceable against\nthe estate?\n5.2.3\n\nRight to Inherit Through Fathers\n\nChildren have no control over the actions of their parents. Consequently, they should not be\npenalized because their parents chose to have them without the benefit of marriage. Therefore, the\nSupreme Court has taken steps to ensure that non-marital children have the opportunity to inherit\nfrom their fathers. From a public policy perspective, this makes sense because a man has a legal duty\nto provide financial support for his child(ren). That obligation should not end with death of the\nman. Courts have been less inclined to require that the non-marital child be given the right to inherit\nthrough his or her father. This is especially true if that mandate would frustrate the intent of a\ntestator. That issue is taken up in the next case.\n\nIn re Dumaine, 600 A.2d 127 (N.H. 1991)\nBATCHELEDER, J.\nElizabeth Ann Charney appeals the ruling of the Superior Court (Pappagianis, J.) that she is not a\nmember of the class of \xe2\x80\x9clegitimate\xe2\x80\x9d beneficiaries of the Dumaines and Dumaines New Fund trusts.\nShe raises five issues on appeal. First, she argues that the trial court erred in its construction of the\nterm \xe2\x80\x9clegitimate\xe2\x80\x9d as \xe2\x80\x9clawfully begotten, born in wedlock.\xe2\x80\x9d Second, she asserts that the trial court\nimproperly relied on depositions containing inadmissible hearsay in determining the settler\xe2\x80\x99s intent.\nThird, she maintains that, even though she was adopted, the subsequent marriage of her natural\nparents and their recognition of her as their child qualifies her as a beneficiary under the language of\nthe trusts. Fourth, she argues that the trial court\xe2\x80\x99s determination of the settlors\xe2\x80\x99 intent was\nimpermissible State action, violative of her rights under the equal protection and due process clauses\nof the United States and New Hampshire Constitutions. Finally, she contends that the trial court\nerred when it denied her request for attorney\xe2\x80\x99s fees. For the reasons that followed, we affirm.\nThe patriarch of the Dumaine family business complex was Frederic C. Dumaine, Sr., who founded\nthe Amoskeag Company and amassed the wealth that formed the res of the trusts involved in this\nlitigation. Dumaines, a New Hampshire trust, was created by Frederic, Sr. in 1920. The Dumaines\n209\n\n\x0cdeclaration of trust provides for income to be distributed \xe2\x80\x9cto legitimate children of Frederic C.\nDumaine or to their legitimate surviving children,\xe2\x80\x9d and provides for the distribution of the trust\nprincipal \xe2\x80\x9cto and among the legitimate issue or lineal descendants of the children of Frederic C.\nDumaine living at that time.\xe2\x80\x9d\nDumaines New Fund, also a New Hampshire trust, was created in 1955. The Dumaines New Fund\ndeclaration of trust provides for income to be distributed to \xe2\x80\x9c legitimate children\xe2\x80\xa6of Frederic C.\nDumaine, Sr\xe2\x80\xa6.and\xe2\x80\xa6to the legitimate issue\xe2\x80\xa6of any such children deceased,\xe2\x80\x9d and provides for the\ndistribution of the trust principal \xe2\x80\x9cto the legitimate issue of Frederic C. Dumaine, Sr.\xe2\x80\x9d\nOn January 19, 1956, Elizabeth Ann Charney was born to Evelyn Lafferty Richardson Humphreys,\nwho was unmarried at the time. Pierre Dumaine, a son of Frederic C. Dumaine, Sr., was the father.\nAt the time of the birth, however, Pierre Dumaine was married to Margaret Lael Edwards Dumaine,\nby whom he had two children, Peter Thomas Dumaine and Lael Elizabeth Dumaine Fuhs.\nEvelyn Humphreys placed the baby for adoption immediately after she was born, and the child was\nadopted by John and Nelda Scudder of Brooklyn, New York, in 1957. Pierre and Margaret Edwards\nDumaine were divorced in 1961. Pierre and Evelyn Humphreys were married six days later. In\n1978, John Scudder contacted the attorney who had facilitated the adoption and stated that his\ndaughter, seeking to determine her roots, wanted to locate her biological parents. She was then\ntwenty-two years old, married, and the mother of one son. She was subsequently reunited with her\nbiological parents and, during the next nine years, visited with them on three other occasions and\nattended their funerals.\nThe trustees of the Dumaines and Dumaines New Fund trusts sought a determination by the\nsuperior court of the class of beneficiaries entitled to distributions of income and principal under the\ntrusts, and specifically of the rights of Elizabeth Ann Charney under those trusts. The superior\ncourt ruled that Charney was not a beneficiary of the trusts because she was not \xe2\x80\x9clawfully begotten,\nborn in wedlock.\xe2\x80\x9d This appeal followed.\nAt the outset, we must determine which jurisdiction\xe2\x80\x99s law controls the interpretation of the terms of\nthe trusts. Charney argues that New York law should be applied, because it is the State where the\nbirth, adoption, and initial acts of recognition occurred and, therefore, has significant relevant policy\nconsiderations to be preserved and protected. In this case, both trusts specifically state that they are\nexecuted \xe2\x80\x9cin the State of New Hampshire and with reference to the laws thereof; and the rights of\nall parties and the construction and effect of each and every provision shall be subject to and\nconstrued according to the laws of said State.\xe2\x80\x9d We will respect the settlor\xe2\x80\x99s intent that New\nHampshire law should govern the trust instruments. See, e.g., In re Lykes Estate, 113 N.H. 282, 284,\n305 A.2d 684, 685 (1973) (New Hampshire testamentary trust interpreted under Texas law,\naccording to direction of testator); Restatement (second) of Conflict of Laws \xc2\xa7\xc2\xa7 268, 277 (1977).\nMoreover, this court has previously applied New Hampshire law in interpreting one of the trusts\ninvolved here. See Bartlett v. Dumaine 128 N.H. 497, 523 A.2d 1 (1986). Consequently, we hold that\nNew Hampshire law applies.\nCharney first argues that the term \xe2\x80\x9clegitimate\xe2\x80\x9d is unambiguous and, as such, should be given its legal\ndefinition, which she contends is \xe2\x80\x9cto make lawful.\xe2\x80\x9d We agree that the term is unambiguous, but\nreject Charney\xe2\x80\x99s proposed definition.\n210\n\n\x0cThe definition of \xe2\x80\x9clegitimate\xe2\x80\x9d proffered by Charney, i.e., \xe2\x80\x9cto make lawful,\xe2\x80\x9d applies only when the\nterm is used as a verb. Indeed, the example employed in the definition of the verb \xe2\x80\x9cto legitimate\xe2\x80\x9d in\nBlack\xe2\x80\x99s Law Dictionary 901 (6th ed.1990). \xe2\x80\x9cto place a child born before marriage on the legal footing\nof those born in lawful wedlock,\xe2\x80\x9d is exactly what Charney is striving to do in this case. Because of\nthe use of the term as an adjective in the trust documents, however, her efforts \xe2\x80\x9cto legitimate\xe2\x80\x9d her\nstatus must fail.\n\xe2\x80\x9cIn searching for the proper interpretation of words used in a written instrument, we require that\nthe words and phrases be given their common meaning.\xe2\x80\x9d In re Trust u/w/o Smith, 131 N.H. 396,\n398, 553 A.2d 323, 324 (1988). The classes of beneficiaries entitled to distributions under these\ntrusts are described alternatively as \xe2\x80\x9clegitimate children,\xe2\x80\x9d \xe2\x80\x9clegitimate surviving children,\xe2\x80\x9d\n\xe2\x80\x9clegitimate\xe2\x80\x9d is used as an adjective; nowhere in the trust instruments is it employed as a verb. The\nterm\xe2\x80\x99s common meaning as an adjective is found in Webster\xe2\x80\x99s Third New Dictionary 1291 (3rd ed.\n1961): \xe2\x80\x9clawfully begotten: born in wedlock: having full filial rights and obligations by birth.\xe2\x80\x9d Thus, a\nchild whose parents were unwed at the time of his or her birth, regardless of the child\xe2\x80\x99s subsequent\nadoption or the intermarriage of his or her parents, is not \xe2\x80\x9clegitimate\xe2\x80\x9d under the term\xe2\x80\x99s common\nmeaning and as the term is used I the trust documents.\nFocusing on the phrase \xe2\x80\x9clegitimate issue or lineal descendants,\xe2\x80\x9d which describes the ultimate takers\nof the trust assets upon termination of the Dumaines trust, Charney contends that, even if this court\nexcludes her from the class of \xe2\x80\x9clegitimate issue,\xe2\x80\x9d she is nevertheless entitled to take as a \xe2\x80\x9clineal\ndescendant.\xe2\x80\x9d We agree with the trial court, however, that \xe2\x80\x9clegitimate\xe2\x80\x9d modifies both \xe2\x80\x9cissue\xe2\x80\x9d and\n\xe2\x80\x9clineal descendants.\xe2\x80\x9d A review of the trust instruments indicates that each references to the\nbeneficiaries includes the term \xe2\x80\x9clegitimate\xe2\x80\x9d as a modifier. This manifests the settlor\xe2\x80\x99s purpose to\nbenefit only those of his descendants who are \xe2\x80\x9clegitimate.\xe2\x80\x9d See Bartlett, 128 N.H. at 504, 523 A.2d\nat 6 (settlor\xe2\x80\x99s intend to be determined by the terms of the trust). Moreover, in the analogous\nprincipal distribution provision of the Dumaines New Fund trust, the distribution of assets on the\ntrust\xe2\x80\x99s termination is directed to \xe2\x80\x9clegitimate issue;\xe2\x80\x9d the phrase \xe2\x80\x9cor lineal descendants\xe2\x80\x9d does not\nappear.\nCharney also maintains that the trial court erred when it ruled that \xe2\x80\x9clegitimate\xe2\x80\x9d was ambiguous\nbecause it went outside the four corners of the document to determine the settlor\xe2\x80\x99s intent. She\ncontends that, in doing so, the trial court erroneously considered inadmissible hearsay and\nimproperly denied her a full evidentiary hearing. Because we hold that the term \xe2\x80\x9clegitimate\xe2\x80\x9d as\nemployed in the trust documents is unambiguous and, as such, requires no parole evidence, we need\nnot address this argument.\nIn addition, Charney contends that RSA 457:42 entitles her to take under the trusts. That statute\nprovides:\n\xe2\x80\x9cMarriage of Parents. Where the parents of children born before marriage afterwards\nintermarry, and recognize such children as their own, such children shall be legitimate and\nshall inherit equally with their other children under the statute of distribution.\xe2\x80\x9d\n(Emphasis added.) On its face, the statute\xe2\x80\x99s purpose is to define the inheritance rights of children\nborn out of wedlock whose natural parents had later intermarried, recognized them, and died\nintestate. It does not govern the distribution of funds under private trust document. We therefore\ndismiss Charney\xe2\x80\x99s argument to the contrary.\n211\n\n\x0cCharney further argues that her intervening adoption did not negate her legitimization, which was\naccomplished by her parents\xe2\x80\x99 intermarriage and recognition of her s their child. Because we have\nheld that her parents\xe2\x80\x99 marital status at the time of her birth controls her ability to take under the\ntrusts, any event subsequent to her birth, such as her adoption, are of no consequence to her\nbeneficiary status.\nIn support of the arguments presented above, Charney offers several unique theories as to why she\nshould be included in the class of beneficiaries under the trusts. We find none of them to be\ncompelling. First, she argues that Pierre Dumaine expressed in his will that it was his desire that she\nshould be a beneficiary. However, absent a power of appointment over his share of the trust\ndistributions, which he did not have, Pierre was powerless to direct where those funds would go\nupon his death. Second, she maintains that she was placed for adoption because of \xe2\x80\x9cfear of\neconomic reprisals from the trustees\xe2\x80\x9d and that the fact of adoption, therefore, should not exclude\nher from the class of beneficiaries. Even if her allegation is true, many parents are forced to place a\nchild for adoption because of economic factors. Further, we have already held that her adoption\nhad no bearing on her ability to take under the trust instruments. Finally, Charney contends that\nequity requires that an adopted child not be denied his or her \xe2\x80\x9cright to take\xe2\x80\x9d under the trust\ndocument. This argument is equally unpersuasive, because no \xe2\x80\x9cright to take\xe2\x80\x9d ever existed.\nAgain focusing on her adopted status, Charney further argues that the trial court\xe2\x80\x99s ruling that a child\nborn out of wedlock and subsequently given up for adoption will permanently retain the status of\nbeing illegitimate, despite the subsequent intermarriage of the child\xe2\x80\x99s natural parents and their\nrecognition of the child as their own, violated her equal protection and due process rights under the\nState and Federal Constitutions. N.H. CONST. pt I, arts. 2, 12, 14; U.S. CONST. amend XIV, \xc2\xa7 1.\nWe disagree.\nAs a preliminary matter, we will analyze the respondent\xe2\x80\x99s argument under the protections afforded\nby part I, articles 2, 12 and 14 of the New Hampshire Constitution. See Sate v. Ball, 124 N.H. 226,\n231, 471 A.2d 347, 350 (1983). To that extent, we look to federal cases merely for guidance. See In\nre Certain Scholarship Funds, 133 N.H. 227, 229-30, 575 A.2d 1325, 1326-27 (1990).\nWe first address Charney\xe2\x80\x99s argument that the trial court\xe2\x80\x99s ruling resulted in a denial of her right to\nequal protection as a member of a class of children born out of wedlock. In order to implicate the\nprovisions of the equal protection clause, however, the requisite \xe2\x80\x9cstate action\xe2\x80\x9d must be\ndemonstrated. In re Certain Scholarship Funds, supra at 230, 575 A.2d at 1327. Absent some action that\nmay fairly be attributed to the State and Federal Constitutions \xe2\x80\x9c\xe2\x80\x98erect[ ] no shield against merely\nprivate conduct, however discriminating or wrongful.\xe2\x80\x99\xe2\x80\x9d In re Certain Scholarship Funds supra (quoting\nShelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948)).\nThe trial court rejected Charney\xe2\x80\x99s constitutional claim, ruling:\n\xe2\x80\x9c[A]ny adverse consequences from the fact she was not born in wedlock are not the result\nof state statutes or state provisions on descent and distribution, illegitimacy, adoption, or\nintermarriage of biological parents, but are the sole result of the intention of Frederic C.\nDumaine, Sr., and of the other settlors that a beneficiary under Dumaines and Dumaines\nNew Fund can be only a person \xe2\x80\x98lawfully begotten, born in wedlock.\xe2\x80\x99\xe2\x80\x9d\n212\n\n\x0cWe fail to find the necessary State action in the trial court\xe2\x80\x99s interpretation of the trust documents.\nSee Evans v. Abney, 396 U.S. 435, 444, 90 S.Ct. 628, 633 (1970) (action of Georgia Supreme Court\ndeclaring trust terminated did not constitute State action): see also In re Certain Scholarship Funds, supra\nat 234, 575 A. 2d at 1329. To hold otherwise would subject all judicial interpretations of private\nagreements to equal protection challenges.\nThe contention that Charney was divested of property rights in violation of the guarantees of due\nprocess is equally unfounded. \xe2\x80\x9c[I]t is the alteration or extinguishing of a right or status previously\nrecognized by state law that invokes the procedural guarantees contained in the due process clause.\xe2\x80\x9d\nMedina v. Rudman, 545 F.2d 244, 250 (1st Cir. 1976), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d\n177 (1977). We have already determined, however, that no \xe2\x80\x9cright to take\xe2\x80\x9d under the trusts ever\nexisted. Consequently, we reject Charney\xe2\x80\x99s due process claim.\nFinally, Charney argues that the trial court erred as a matter of law when it denied her request for\nattorney\xe2\x80\x99s fees. \xe2\x80\x9c[T]he allowance of attorneys\xe2\x80\x99 fees is not a matter of right but rests in the cautiously\nexercised discretion of the court. Attorneys\xe2\x80\x99 fees should be allowed only in those cases where the\nlitigation is conducted in good faith for the primary benefit of the trust as a whole in relation to\nsubstantial and material issues essential to the proper administration of the trust.\xe2\x80\x9d Concord Nat. Bank\nv. Haverhill, 101 N.H. 416, 419, 145 A.2d 61, 63 (1958). The trial court found that \xe2\x80\x9cElizabeth Ann\nCharney participated in this litigation primarily for her personal benefit and not for the primary\nbenefit of the trust as a whole.\xe2\x80\x9d Although Charney argues that, by participating in these\nproceedings, she \xe2\x80\x9caided the trial court with key and relevant legal sources, authorities, and legal\nanalysis, and has corrected misleading and erroneous assertions made by [the petitioners],\xe2\x80\x9d her\nevaluation of the benefit to the trial court from her participation in this litigation is not the\ndeterminative factor. The inquiry is whether her primary motive was the benefit of the trusts as a\nwhole or her own benefit. On the facts of this case, the trial court did not abuse its discretion in\ndetermining that any purported aid it received from Charney was not \xe2\x80\x9cfor the primary benefit of the\ntrust as a whole.\xe2\x80\x9d Id.\nAffirmed.\nNotes and Questions\n1. Why do you think that the settlor of the trust insisted upon only legitimate heirs benefiting from\nthe trust?\n2. If Charney\xe2\x80\x99s father had been the settler of the trust and the trust contained the same language,\nwould Charney have had the right to take under the trust?\n3. From a public policy perspective, should non-martial children be permitted to inherit through\ntheir fathers?\n\nUniform Parentage Act \xc2\xa7 202. No Discrimination Based on Marital Status.36\nAdopted by the following states: Alaska, Arizona, California, Colorado, Connecticut, Hawaii, Kansas, Michigan,\nMinnesota, Montana, Nevada, New Jersey, New Mexico, North Dakota, Rhode Island, South Dakota, Washington,\nWashington D.C. and Utah.\n36\n\n213\n\n\x0cA child born to parents who are not married to each other has the same rights under the\nlaw as a child born to parents who are married to each other.\nUnder the UPA, the right of children to inherit from their fathers\xe2\x80\x99 estates does not depend\nupon the marital status of the parents at the time they were born. Under this approach, non-marital\nchildren are given an equal opportunity to inherit from their fathers\xe2\x80\x99 estates. Approximately twenty\nstates have included language modeled after the language in the UPA in their intestacy statutes.\nAccording to the scheme set forth by the UPA, when the father and mother do not marry or\nattempt to marry, the law presumes the existence of a father-child relationship between the father\nand child if one of the following conditions exists: (1) before the child reaches the age of two, the\nfather and child live in the same household and the father (openly) holds the child out as his natural\nchild; or (2) the fathers files a written acknowledgment of paternity with an appropriate court of\nadministrative agency. If the presumption is not rebutted, the child has a right to inherit on equal par\nwith the man\xe2\x80\x99s marital children. If neither one of the stated requirements is met, the non-marital\nchild has the burden of proving a claim of paternity in order to be able to inherit from his or her\nfather.\nThe UPA provides equal opportunity, but not true equality, for the non-marital child. The\nmarital child does not have to take any action for the presumption of a parent-child relationship to\narise. To the contrary, for the non-marital child, the presumption of paternity arises only if his or her\nfather takes some type of affirmative action.\nNotes and Questions\n1. What are the pros and cons of the UPA approach?\n2. Does the UPA approach balance the interests of the state, the non-marital children and the\nmarital children?\n3. Intestacy is the domain of the individual states. In enacting intestacy statutes, state legislatures\nattempt to create systems that serve the interests of their citizens. With regards to the inheritance\nrights of non-marital children, is there a need for the states to take a uniform approach? Why? Why\nnot?\n4. For a discussion of the history of the UPA\xe2\x80\x99s treatment of non-marital children, See Olga V.\nKotlyarevskaya & Sara B. Poster, Separation Anxiety Among California\xe2\x80\x99s Courts: Addressing the Confusion\nover Same-Sex Partners\xe2\x80\x99 Parentage Claims, 10 U.C. Davis J. Juv. L. & Pol\xe2\x80\x99y 153, 157-58 (2006).\n\n214\n\n\x0cSample State Statutes\nWest\'s Annotated Indiana Code\n29-1-2-7 Illegitimate children; inheritance\nSec. 7.\n(a) For the purpose of inheritance (on the maternal side) to, through, and from a child born out of\nwedlock, the child shall be treated as if the child\'s mother were married to the child\'s father at the\ntime of the child\'s birth, so that the child and the child\'s issue shall inherit from the child\'s mother\nand from the child\'s maternal kindred, both descendants and collaterals, in all degrees, and they may\ninherit from the child. The child shall also be treated as if the child\'s mother were married to the\nchild\'s father at the time of the child\'s birth, for the purpose of determining homestead rights and\nthe making of family allowances.\n(b) For the purpose of inheritance (on the paternal side) to, through, and from a child born out of\nwedlock, the child shall be treated as if the child\'s father were married to the child\'s mother at the\ntime of the child\'s birth, if one (1) of the following requirements is met:\n(1) The paternity of a child who was at least twenty (20) years of age when the father died\nhas been established by law in a cause of action that is filed during the father\'s lifetime.\n(2) The paternity of a child who was less than twenty (20) years of age when the father died\nhas been established by law in a cause of action that is filed:\n(A) during the father\'s lifetime; or\n(B) within five (5) months after the father\'s death.\n(3) The paternity of a child born after the father died has been established by law in a cause\nof action that is filed within eleven (11) months after the father\'s death.\n(4) The putative father marries the mother of the child and acknowledges the child to be his\nown.\n(5) The putative father executes a paternity affidavit as set forth in IC 16-37-2-2.1.\n(c) The testimony of the mother may be received in evidence to establish such paternity and\nacknowledgment, but no judgment shall be made upon the evidence of the mother alone. The\nevidence of the mother must be supported by corroborative evidence or circumstances.\n(d) If paternity is established as described in this section, the child shall be treated as if the child\'s\nfather were married to the child\'s mother at the time of the child\'s birth, so that the child and the\nchild\'s issue shall inherit from the child\'s father and from the child\'s paternal kindred, both\ndescendants and collateral, in all degrees, and they may inherit from the child. The child shall also be\ntreated as if the child\'s father were married to the child\'s mother at the time of the child\'s birth, for\nthe purpose of determining homestead rights and the making of family allowances.\n215\n\n\x0cCode of Georgia Annotated\n\xc2\xa7 53-2-3. Rights of inheritance of child born out of wedlock\nThe rights of inheritance of a child born out of wedlock shall be as follows:\n(1) A child born out of wedlock may inherit in the same manner as though legitimate from or\nthrough the child\'s mother, the other children of the mother, and any other maternal kin;\n(2)\n(A) A child born out of wedlock may not inherit from or through the child\'s father, the other\nchildren of the father, or any paternal kin by reason of the paternal kinship, unless:\n(i) A court of competent jurisdiction has entered an order declaring the child to be\nlegitimate, under the authority of Code Section 19-7-22 or such other authority as\nmay be provided by law;\n(ii) A court of competent jurisdiction has otherwise entered a court order\nestablishing paternity;\n(iii) The father has executed a sworn statement signed by him attesting to the parentchild relationship;\n(iv) The father has signed the birth certificate of the child; or\n(v) There is other clear and convincing evidence that the child is the child of the\nfather.\n(B)(i) Subparagraph (A) of this paragraph notwithstanding, a child born out of wedlock may\ninherit from or through the father, other children of the father, or any paternal kin by reason\nof the paternal kinship if evidence of the rebuttable presumption of paternity described in\nthis subparagraph is filed with the court before which proceedings on the estate are pending\nand the presumption is not overcome to the satisfaction of the trier of fact by clear and\nconvincing evidence.\n(ii) There shall exist a rebuttable presumption of paternity of a child born out of\nwedlock if parentage-determination genetic testing establishes at least a 97 percent\nprobability of paternity. Parentage-determination genetic testing shall include, but\nnot be limited to, red cell antigen, human leucocyte antigen (HLA), red cell enzyme,\nand serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA)\nprobes.\n(C) If any one of the requirements of divisions (i) through (v) of subparagraph (A) of this\nparagraph is fulfilled, or if the presumption of paternity set forth in subparagraph (B) of this\nparagraph shall have been established and shall not have been rebutted by clear and\nconvincing evidence, a child born out of wedlock may inherit in the same manner as though\n216\n\n\x0clegitimate from and through the child\'s father, the other children of his or her father, and\nany other paternal kin;\n(3) In distributions under this Code section, the children of a deceased child born out of wedlock\nshall represent that deceased child.\nSouth Carolina Probate Code\n\xc2\xa7 62-2-109. Meaning of child and related terms.\nIf, for purposes of intestate succession, a relationship of parent and child must be established to\ndetermine succession by, through, or from a person:\n(1) from the date the final decree of adoption is entered, and except as otherwise provided in \xc2\xa7 20-71825, an adopted person is the child of an adopting parent and not of the natural parents except that\nadoption of a child by the spouse of a natural parent has no effect on the relationship between the\nchild and that natural parent.\n(2) In cases not covered by (1), a person born out of wedlock is a child of the mother. That person\nis also a child of the father if:\n(i) the natural parents participated in a marriage ceremony before or after the birth of the\nchild, even though the attempted marriage is void; or\n(ii) the paternity is established by an adjudication commenced before the death of the father\nor within the later of eight months after the death of the father or six months after the initial\nappointment of a personal representative of his estate and, if after his death, by clear and\nconvincing proof, except that the paternity established under this subitem (ii) is ineffective to\nqualify the father or his kindred to inherit from or through the child unless the father has\nopenly treated the child as his and has not refused to support the child.\n(3) A person is not the child of a parent whose parental rights have been terminated under \xc2\xa720-71574 of the 1976 Code, except that the termination of parental rights is ineffective to disqualify the\nchild or its kindred to inherit from or through the parent.\nMcKinney\xe2\x80\x99s Consolidated Laws of New York Annotated\n\xc2\xa7 4-1.2 Inheritance by non-marital children\n(a) For the purposes of this article:\n(1) A non-marital child is the legitimate child of his mother so that he and his\nIssue inherit from his mother and from his maternal kindred.\n(2) A non-marital child is the legitimate child of his father so that he and his issue inherit\nfrom his father and his paternal kindred if:\n(A) a court of competent jurisdiction has, during the lifetime of the father, made an\norder of filiation declaring paternity or the mother and father of the child have\nexecuted an acknowledgment of paternity pursuant to section four thousand one\n217\n\n\x0chundred thirty-five-b of the public health law, which has been filed with the registrar\nof the district in which the birth certificate has been filed or;\n(B) the father of the child has signed an instrument acknowledging paternity,\nprovided that\n(i) such instrument is acknowledged or executed or proved in the form\nrequired to entitle a deed to be recorded in the presence of one or more\nwitnesses and acknowledged by such witness or witnesses, in either case,\nbefore a notary public or other officer authorized to take proof of deeds and\n(ii) such instrument is filed within sixty days from the making thereof with\nthe putative father registry established by the state department of social\nservices pursuant to section three hundred seventy-two-c of the social\nservices law, as added by chapter six hundred sixty-five of the laws of\nnineteen hundred seventy-six and\n(iii) the department of social services shall, within seven days of the filing of\nthe instrument, send written notice by registered mail to the mother and\nother legal guardian of such child, notifying them that an acknowledgment of\npaternity instrument acknowledged or executed by such father has been duly\nfiled or;\n(C) paternity has been established by clear and convincing evidence and the father of\nthe child has openly and notoriously acknowledged the child as his own; or\n(D) a blood genetic marker test had been administered to the father which together\nwith other evidence establishes paternity by clear and convincing evidence.\n(3) The existence of an agreement obligating the father to support the non-marital child does\nnot qualify such child or his issue to inherit from the father in the absence of an order of\nfiliation made or acknowledgement of paternity as prescribed by subparagraph (2).\n(4) A motion for relief from an order of filiation may be made only by the father and a\nmotion for relief from and acknowledgment of paternity may be made by the father, mother\nor other legal guardian of such child, or the child, provided however, such motion must be\nmade within one year from the entry of such order or from the date of written notice as\nprovided for in subparagraph (2).\n(b) If a non-marital child dies, his surviving spouse, issue, mother, maternal kindred, father and\npaternal kindred inherit and are entitled to letters of administration as if the decedent were\nlegitimate, provided that the father and paternal kindred may inherit or obtain such letters only if the\npaternity of the non-marital child has been established pursuant to provisions of clause (A) of\nsubparagraph (2) of paragraph (a) or the father has signed an instrument acknowledging paternity\nand filed the same in accordance with the provisions of clause (B) of subparagraph (2) of paragraph\n(a) or paternity has been established by clear and convincing evidence and the father of the child has\nopenly and notoriously acknowledged the child as his own.\n218\n\n\x0cNotes and Questions\n1. Evaluate the above statutes in light of the legislative mandate to balance the interests of the state,\nthe non-marital child and the marital child.\n2. Are there any legitimate reasons to treat paternal inheritance different from maternal inheritance?\n3. What public policy or state interest is promoted by each of the above statutes?\n4. A key purpose of the intestacy system is to carry out the presumed intent of the decedent. Is that\npurpose promoted by the mandates of the above statutes?\n5. What factors should the probate court be permitted to consider in deciding how to distribute a\nman\xe2\x80\x99s estate under the intestacy system?\n6. In the majority of jurisdictions, in order for the non-martial child to inherit from his or her father,\nhe or she must prove paternity. What methods of proof should be acceptable? See Malone vs. Thomas,\n24 S.W.3d 412 (Tex. App-Houston (1 Dist.) 2000).\n7. Illegitimacy is a suspect classification entitled to strict scrutiny. See Taylor v. Hoffman, 544 S.E.2d\n387 (W. Va. 2001). Should the status of illegitimacy be on par with race or other protected classes?\n6. In some jurisdictions, the non-marital child must be legitimized in order to have the right to\ninherit from his or her father. Should the doctrine of equitable legitimacy be recognized to satisfy\nthe statutory requirement? Consider the following example. Emma and Jarvis lived together, without\nthe benefit of marriage, for almost twenty-six years. They were the parents of two adult children and\nfive grandchildren. The couple and their children have always functioned as a family. Jarvis died\nintestate. He was survived by Emma, their two children, their five grandchildren. Jarvis was also\nsurvived by his two sisters. In order to inherit from Jarvis, the children had to be legitimized prior to\nhis death. The statute sets out the steps the children needed to take to be considered legitimate. In\norder to be fair to the non-marital children and to carry out the presumed intent of Jarvis, should the\ncourt be able to use its equitable powers to declare them to be legitimate?\n5.3\n\nStepchildren and Foster Children\n\nIn the majority of jurisdictions, stepchildren and foster children are not entitled to inherit\nfrom stepparents and foster parents. Nonetheless, if the decedent is not survived by any other heirs\nrelated to the decedent by blood or adoption, the stepchildren and/or foster children may be\nallowed to inherit from the decedent\xe2\x80\x99s estate. In those jurisdictions, the only time that stepchildren\nor foster children can inherit is if it is necessary to avoid having the property escheat to the state.\n5.3.1\n\nStepchildren/Foster Children are not entitled to inherit\n\nWhen people hear the word \xe2\x80\x9cstepparent\xe2\x80\x9d, the images of Cinderella\xe2\x80\x99s cruel stepmother and\nstepsisters come to mind. The Cinderella story focuses upon the discord that can exist in a blended\nfamily. Cinderella and her stepmother did not have a loving parent-child relationship. This vision of\nblended families may contribute to the treatment of stepchildren with regards to inheritance. The\n219\n\n\x0cpurpose of the intestacy system is to carry out the presumed intent of the decedent. The exclusion\nof stepchildren from the list of possible heirs may be a product of the belief that the stepparentstepchild relationship is usually a contentious one. Historically, foster children did not stay in the\nsame home for very long. Thus, the foster parent and the foster child did not have time to develop a\nrelationship. Given the nature of the foster care system, it was impossible to envision a foster\nparent-foster child relationship that would justify treating foster children on par with biological and\nadopted children for inheritance purposes.\n\nWyo. Stat. Ann. \xc2\xa7 2-4-104 (1977)\nPersons of the half-blood inherit the same share they would inherit if they were of the whole blood,\nbut stepchildren and foster children and their descendants do not inherit.\nCurrently, people are creating families in non-traditional ways. Stepchildren are becoming\ntotally integrated into families and foster children are remaining in the same home during most of\ntheir time in the system. These changes have enabled stepparents/foster parents to bond with\nstepchildren/foster children. As a result, the law has begun to recognize and respect those\nrelationships. The consequence is that, in some jurisdictions, stepchildren and foster children are\ngiven the opportunity to inherit from their stepparents and foster parents.37\n5.3.2\n\nStepchildren/Foster Children may inherit if the necessary relationship exists\n\nWest\xe2\x80\x99s Ann. Cal. Prob. Code \xc2\xa7 6454\nFor the purpose of determining intestate succession by a person or the person\xe2\x80\x99s issue from or\nthrough a foster parent or stepparent, the relationship of parent and child exists between that person\nand the person\xe2\x80\x99s foster parent or stepparent of both of the following requirements are satisfied:\n(a) The relationship began during the person\xe2\x80\x99s minority and continued throughout the joint lifetimes\nof the person and the person\xe2\x80\x99s foster parent or stepparent.\n(b) It is established by clear and convincing evidence that the foster parent or stepparent would have\nadopted the person but for a legal barrier.\n\nEstate of Claffey, 257 Cal. Rptr. 197 (Cal. App. 3d 1989)\nSONESHINE, Associate Justice.\nMonroe Thomas McKenzie and Janet Turner appeal a judgment denying them, as stepchildren of\nBessie Claffey, any entitlement to Claffey\'s estate. They contend the trial court prejudicially erred in\ninstructing the jury to find a \xe2\x80\x9cfamily relationship,\xe2\x80\x9d rather than a mere stepchild/stepparent\nrelationship, as a prerequisite to their intestate succession.\nSee Susan N. Gary, Adapting Intestacy Laws to Changing Families, 18 Law & Ineq. 1 (Winter 2000); Terin Barbas Cremer,\nReforming Intestate Inheritance For Stepchildren and Stepparents, 18 Cardozo L.J. & Gender 89 (2011).\n37\n\n220\n\n\x0cI\nThomas and Janet are the children of John and Edythe McKenzie. The McKenzies were divorced in\nMarch 1934. Custody of Thomas and Janet, ten and seven years of age respectively at the time of\ndivorce, was granted to the mother pursuant to stipulation of the parties. Thereafter John married\nBessie Stokes in April 1935. After John\'s death in 1948, Bessie married Edward Claffey from whom\nshe obtained a divorce in 1953. Bessie died intestate in April 1985.\nOn August 30, 1985, Thomas and Janet filed Statements of Claim of Interest in the Estate. (Prob.\nCode, \xc2\xa7 1080.) The statements contain no allegation they lived with their father and Bessie.\nNonetheless, they claimed as stepchildren they were Bessie\'s \xe2\x80\x9cclosest heirs at law,\xe2\x80\x9d because a\n\xe2\x80\x9cparent/child relationship\xe2\x80\x9d arose upon her marriage to John. They attribute Bessie\'s failure to adopt\nthem to the John/Edythe divorce which was \xe2\x80\x9cso bitter that [Edythe] refused the request of Bessie\nClaffey to adopt [them].\xe2\x80\x9d\nOn September 19, Dorothy Creeks filed a statement of interest as a first cousin of Bessie, attaching a\nlist of other known heirs. She stated the property \xe2\x80\x9cconsists of cash in the approximate amount of\n$322,000.00 and other property with an approximate value of $20,000.00, all the separate property\nof the deceased.\xe2\x80\x9d\nThe opposing statements placed the matter of inheritance at issue; Thomas and Janet requested a\njury, and trial began in June 1986. By special verdict, the jury found against Thomas and Janet.\nII\nPrior to January 1, 1985, a stepchild had no right to inherit from a stepparent. On that date, a\ngeneral revision of a large portion of the Probate Code took effect. One such provision was the\naddition of section 6408, setting forth the requirements for establishing a parent and child\nrelationship \xe2\x80\x9cfor the purpose of determining intestate succession....\xe2\x80\x9d The relationship exists between\na child and his or her natural parent \xe2\x80\x9cregardless of the marital status of the natural parents\xe2\x80\x9d (\xc2\xa7 6408,\nsubd. (a)(1)) and \xe2\x80\x9cbetween an adopted person and his or her adopting parent or parents.\xe2\x80\x9d (\xc2\xa7 6408,\nsubd. (a)(2).)\nThe innovative portion, adapted from the Uniform Probate Code, provided: \xe2\x80\x9cThe relationship\nbetween a person and his or her foster parent or stepparent has the same effect as if it were an\nadoptive relationship if (A) the relationship began during the person\'s minority and continued\nthroughout the parties\' joint lifetimes and (B) it is established by clear and convincing evidence that\nthe foster parent or stepparent would have adopted the person but for a legal barrier.\xe2\x80\x9d (\xc2\xa7 6408,\nformer subd. (a)(3).)\nHere, the trial court determined the \xe2\x80\x9crelationship\xe2\x80\x9d referenced above contemplated one \xe2\x80\x9clike that of\xe2\x80\x9d\na natural parent and child in the sense of a \xe2\x80\x9cfamily\xe2\x80\x9d relationship. Consequently, the instructions and\nthe special verdict forms contained that language. The jurors were told Thomas and Janet had the\nburden of establishing, by a preponderance of the evidence, \xe2\x80\x9ca relationship like that of parent and\nchild between themselves and Bessie....\xe2\x80\x9d The facts necessary to establish the relationship were (1)\nThomas\' and Janet\'s father married Bessie while they were minors, (2) they had a \xe2\x80\x9cfamily\nrelationship\xe2\x80\x9d during their minority, and (3) \xe2\x80\x9ca parent and child family relationship existed between\nBessie and [the children] which began while [they were minors] and continued throughout their joint\n221\n\n\x0clifetimes.\xe2\x80\x9d\nBy special verdict, the jury found no \xe2\x80\x9cparent/child-like family relationship between BESSIE\nCLAFFEY and [the stepchildren] [to] exist during [the stepchildren\'s] minority and continue\nthroughout their joint lifetimes.\xe2\x80\x9d They further found Edythe and Bessie discussed only \xe2\x80\x9ctemporary\npossession\xe2\x80\x9d of the children for medical reasons; and although there was a legal barrier to adoption,\nthere was no clear and convincing evidence Bessie would have adopted the stepchildren but for that\nbarrier.\nIII\nThomas objects to the trial court\'s insertion of the term \xe2\x80\x9cfamily\xe2\x80\x9d in the instructions and verdict\nforms presented to the jury. He claims the court \xe2\x80\x9cinstilled a certain vision of the type of relationship\nnecessary for \xc2\xa7 6408 to apply which is not required by the literal meaning of \xc2\xa7 6408.\xe2\x80\x9d In particular,\nhe and Janet insist the \xe2\x80\x9crelationship\xe2\x80\x9d in question is merely \xe2\x80\x9ca relationship between a person and his\nor her stepparent or a \xe2\x80\x98stepchild/stepparent\xe2\x80\x99 relationship.\xe2\x80\x9d We disagree.\nThe meaning of section 6408, subdivision (a)(3) is not so abundantly clear as Thomas contends. The\nterm \xe2\x80\x9crelationship\xe2\x80\x9d in subdivision (a)(3)(A) cannot refer solely to the dictionary meaning, i.e., the\nstepchild/stepparent relationship that arises upon the natural parent\'s remarriage. If that were true,\nevery remarriage, standing alone, would satisfy part (A) whether the new partner even knew the\nchildren or was ever allowed to see them. Consequently, the necessary \xe2\x80\x9crelationship,\xe2\x80\x9d existing during\nminority and continuing throughout the parties\' lifetime, must encompass something more than an\nexchange of wedding vows between the natural father and a stranger.\n\xe2\x80\x9c\xe2\x80\x98\xe2\x80\x9cThe most fundamental rule of statutory construction is that \xe2\x80\x98the court should ascertain the intent\nof the Legislature so as to effectuate the purpose of the law.\xe2\x80\x99 [Citations.]\xe2\x80\x9d\'\xe2\x80\x9d (Jutzi v. County of Los\nAngeles (1987) 196 Cal.App.3d 637, 650, 242 Cal.Rptr. 74.) Section 6408, a part of the revision of the\nstatutes relating to wills and intestate succession, was drafted by and proposed to the Legislature by\nthe California Law Revision Commission. The initial presentation contained no reference to\nstepchildren except as they were officially adopted by the stepparent. Comment to the section stated,\n\xe2\x80\x9cA person who is only a stepchild ... is not a child.\xe2\x80\x9d A later recommendation by the commission\'s\nprobate consultant suggested the addition of what would become subdivision (a)(3). The consultant\nnoted, under the proposed addition, provision would be made \xe2\x80\x9cfor step- and foster children in very\nlimited situations, with the necessary safeguards incorporated by treating the case like an adoption....\xe2\x80\x9d\n(Emphasis added.) The proposal was accepted at the next revision committee meeting.\nAs reworked and amended, the comprehensive redrafting of the Probate Code was known as Bill\nNo. AB 25 and contained subdivision (a)(3) above. The commission\'s \xe2\x80\x9cExplanation of Assembly Bill\nNo. 25\xe2\x80\x9d specifically refers to establishment of a stepchild\'s right to inherit as based on a \xe2\x80\x9cfamily\nrelationship.\xe2\x80\x9d In its report to the Assembly, the Committee on the Judiciary digested the relevant\nsection as follows: \xe2\x80\x9cGives a foster child and a stepchild the same status as an adopted child if the\nfamily relationship began during the child\'s minority....\xe2\x80\x9d (Emphasis added.) Similarly, the Senate\nCommittee on Judiciary reported to its session that \xe2\x80\x9c[t]his bill would also create in a foster child and\na stepchild the same inheritance rights as in an adopted child if the family relationship began during the\nchild\'s minority....\xe2\x80\x9d (Emphasis added.)\nBy analogy, we note the provisions of section 6408.5, which further define the parent and child\n222\n\n\x0crelationship of an adopted child and its natural and adoptive parents. In delineating those situations\nwhere the child may inherit from both the natural and the adoptive parents, the operative issue is\nwhether the \xe2\x80\x9cnatural parent and the adopted person lived together at any time as parent and child....\xe2\x80\x9d (\xc2\xa7\n6408.5, subd. (a)(1), emphasis added.)\nMost important, the categories of foster children and stepchildren are dealt with in the same section\nand receive identical treatment. In both instances, the \xe2\x80\x9crelationship\xe2\x80\x9d must originate during the\nchild\'s minority and continue throughout the parties\' lifetimes. It would be anomalous to find less of\na \xe2\x80\x9cfamily relationship\xe2\x80\x9d required for inheritance by a stepchild than by a foster child. Yet \xe2\x80\x9c[a] foster\nparent has been defined as \xe2\x80\x98one who, although not legally related to the child by direct parental\nblood ties, nor decreed a parent in formal adoption proceedings, assumes the role of parent.\xe2\x80\x99\n[Citations.]\xe2\x80\x9d (In re Lynna B. (1979) 92 Cal.App.3d 682, 696, 155 Cal.Rptr. 256.) They are essentially\n\xe2\x80\x9cde facto\xe2\x80\x9d parents. (In re B.G. (1974) 11 Cal.3d 679, 693, 114 Cal.Rptr. 444, 523 P.2d 244.) We do\nnot perceive the Legislature as requiring less familial or parental involvement by a stepparent where\nthe stepchild seeks to inherit after the death of the stepparent.\nWe are convinced the relationship envisioned by the Law Revision Commission, as framers of the\nrevised code, and the Legislature, which enacted the proposals as amended, embraced the terms\npronounced by the trial court. Distribution of the estate of one dying without a will to his or her\nunadopted stepchild rather than to heirs claiming by blood relationship is not automatic and must be\nbased on a review of each situation. Where the child has lived with one natural parent rather than\nthe other natural parent and the stepparent, any alleged relationship is necessarily more difficult to\nestablish.\nHere, the jury found there existed no family relationship like that of a parent and child between\nBessie and either Thomas or Janet. The sufficiency of the evidence to support this finding is not\ncontested. And because we find no reason to disagree with the court\'s instructions to the jury, we\nfind no error.\nJudgment affirmed.\n5.3.3\n\nStepchildren/Foster Children may inherit if there are no other heirs available\n\nMD Code, Estates and Trusts, \xc2\xa7 3-104\n(e) If there is no surviving blood relative entitled to inherit under this section, it shall be divided into\nas many equal shares as there are stepchildren of the decedent who survive the decedent and\nstepchildren of the decedent who did not survive the decedent but of whom issue did survive the\ndecedent. Each stepchild of the decedent who did survive the decedent shall receive one share and\nthe issue of each stepchild of the decedent who did not survive the decedent but of whom issue did\nsurvive the decedent shall receive one share apportioned by applying the pattern of representation\nset forth in \xc2\xa7 1-210. As used in this subsection, \xe2\x80\x9cstepchild\xe2\x80\x9d shall mean the child of any spouse of\nthe decedent if such spouse was not divorced from the decedent.\n\n223\n\n\x0cEstate of Smith, 299 P.2d 550 (Wash. 1956)\nSCHWELLENBACH, J.\nErnest E. Smith died testate. His will provided:\n\xe2\x80\x98Article First: I give and bequeath unto each of my children, namely, Marion Gildberg, residing at\nSeattle, Washington, Adelle Benson, residing at Portland, Oregon, Virginia McAllister, residing at\nCottage Grove, Oregon; Georgia Dolphus, residing at Long Beach, California, and Ernest E. Smith,\nJr., residing at Monroe, Washington, the sum of one dollar.\n\xe2\x80\x98Article Second: I hereby give, devise and bequeath all of the rest, residue and remainder of my estate,\nreal, personal and mixed, of whatsoever character, and wheresoever situated, unto my beloved wife,\nJessie M. Smith.\xe2\x80\x99\nOf the \xe2\x80\x98children\xe2\x80\x99 mentioned in the will, only Ernest E. Smith, Jr., was a child of the decedent. He\nwas born of the marriage between decedent and Jessie M. Smith. The others were the issue of a\nprevious marriage between Jessie M. Smith and Jorgen P. Gildberg.\nMarion Gildberg, Georgia Dolphus, Ernest E. Smith, Jr., and Jessie M. Smith, predeceased Ernest E.\nSmith. Ernest E. Smith, Jr., left as his issue one child, Virginia H. Nicholson.\nThe will was admitted to probate and in his final report the administrator with will annexed\npetitioned that the estate be distributed equally to Adele Benson, Virginia McAllister Smith, and\nVirginia H. Nicholson, the granddaughter. The latter, claiming to be the sole heir, filed objections\nand the trial court ruled that Adele Benson and Virginia McAllister Smith, as stepchildren of the\ndecedent, had no right of inheritance from him. One dollar was ordered to be distributed to each of\nthe surviving stepchildren in accordance with the terms of the will and the residue of the estate\ndistributed to Virginia Nicholson. Adele Benson and Virginia McAllister Smith appeal.\nJessie M. Smith having predeceased her husband, the clause in his will leaving her the residue of his\nestate, lapsed. There being no further residuary provision, that portion of his property passes by the\nlaw of descent to his heirs-at-law. In re Sims\' Estate, 39 Wash.2d 288, 235 P.2d 204.\nThe question presented in this appeal is whether a stepchild may inherit from his stepparent as an\nheir-at-law. At common law the relationship of stepparent and stepchild conferred no rights and\nimposed no duties. The question of whether appellants may inherit in this instance depends wholly\nupon the statutes of descent and distribution. The property before the court was Ernest E. Smith\'s\nseparate property, having been acquired by him from the community estate of himself and Jessie M.\nSmith under probate procedure.\nRCW 11.04.020 provides in part:\n\xe2\x80\x98When any person dies seized of any lands, tenements or hereditaments, or any right thereto,\nor entitled to any interest therein, in fee simple, or for the life of another, as his separate\nestate, not having devised the same, they shall descend subject to the debts as follows:\n224\n\n\x0c\xe2\x80\x98Fifth. If the decedent leaves no husband or wife the estate goes in equal shares to his\nchildren, and to the issue of any deceased child, by right of representation.\n\xe2\x80\x98The words \xe2\x80\x98issue,\xe2\x80\x99 \xe2\x80\x98child\xe2\x80\x99 and \xe2\x80\x98children\xe2\x80\x99 wherever used in this section shall be construed to\ninclude lawfully adopted children.\' RCW 11.04.030(3) provides:\n\xe2\x80\x98The residue, if any, of the personal estate shall be distributed among the same persons as\nwould be entitled to the real estate by RCW 11.04.020, and in the same proportion as\nprovided, excepting as herein further provided; * * *.\xe2\x80\x99\nA child is the son or daughter, in relation to the father or mother. A stepchild is the son or daughter\nof one\'s wife by a former husband, or of one\'s husband by a former wife.\nThe court found that there was no evidence of the decedent having lawfully adopted Adele Benson\nor Virginia McAllister Smith.\nStepchildren are not included in the terms of the last paragraph of RCW 11.04.020 by implication.\nThe status of stepchildren was considered by the legislature in a separate section. RCW 11.08.010\nprovides for inheritance from a stepparent in order to avoid escheat of the property to the state. The\nright of a stepchild to inherit from a stepparent is limited to the circumstances outlined therein.\nAppellants contend that the legislature eliminated any distinction between kindred of the half blood\nand of the whole blood when it enacted RCW 11.04.100.\n\xe2\x80\x98The degree of kindred shall be computed according to the rules of the civil law, and the\nkindred of the half blood shall inherit equally with those of the whole blood in the same\ndegree, unless the inheritance comes to the intestate by descent, devise, or gift from one of\nhis ancestors, or kindred of such ancestor\'s blood, in which case all those who are not of the\nblood of such ancestors shall be excluded from such inheritance. The words \xe2\x80\x98kindred of such\nancestor\'s blood\xe2\x80\x99 and \xe2\x80\x98blood of such ancestors\' shall be construed to include any child\nlawfully adopted by one who is in fact of the blood of such ancestor.\xe2\x80\x99\nIn State v. Bielman, 86 Wash. 460, 150 P. 1194, 1195, the defendant was charged with the crime of\nincest with his stepdaughter, in violation of \xc2\xa7 2455, Rem. & Bal. Code, which provided:\n\xe2\x80\x98Whenever any male and female persons, nearer of kin to each other than second cousins,\ncomputing by the rules of the civil law, whether of the half or the whole blood, shall have\nsexual intercourse together, both shall be guilty of incest * * *.\xe2\x80\x9d\nWe said:\n\xe2\x80\x98It is contended by the appellant that this statute refers only to persons who are blood\nrelations nearer of kin to each other than second cousins, computing by the rule of the civil\nlaw. We think this contention must be sustained. The ordinary meaning of the word \xe2\x80\x98kin\xe2\x80\x99 is\n\xe2\x80\x98a blood relation.\xe2\x80\x99 See \xe2\x80\x98Kin,\xe2\x80\x99 2 Words & Phrases, Second Series, p. 1306 [23 Words &\nPhrases, Perm. Ed., p. 546]. Warvelle, Real Property (3d ed.), \xc2\xa7 168. The phrase \xe2\x80\x98whether of\nthe half or the whole blood,\xe2\x80\x99 used in section 2455, indicates quite clearly that the section\n225\n\n\x0crefers only to kindred of the blood, and not kindred by affinity. We are of the opinion,\ntherefore, that this section does not apply.\'\nIn In re Field, 182 App.Div. 266, 169 N.Y.S. 677, 681, the question was whether four stepchildren\nwere entitled to share in their deceased stepmother\'s estate under the laws of descent and\ndistribution. The court excluded the stepchildren, saying:\n\xe2\x80\x98There is no question presented in this case, therefore, of the half blood, because the four\nchildren of her husband, John Stilwell, by his first wife, had none of her blood in their veins,\nand she was the stock. If one of her children had died intestate, then his share would have\ndescended to each of his four half brothers and sisters and his two whole sisters, because, as\nto them, he would have been the ancestor, and all would have been of the blood of their\ncommon father, John Stilwell. But that situation is not presented.\xe2\x80\x99\nIn re Estate of Paus, 324 Ill.App. 58, 57 N.E.2d 212, 213, involved a petition by the children of a sister\nof decedent\'s predeceased stepfather that they be declared heirs and next of kin of decedent. Their\nclaim was based on a statute which provided:\n\xe2\x80\x98In no case is there any distinction between the kindred of the whole and the half blood.\xe2\x80\x9d\nS.H.A.Ill. ch. 3, \xc2\xa7 162.\nThe court said:\n\xe2\x80\x98We find nothing in the statute to justify the construction contended for. Five paragraphs of\nthe statute designate persons who shall take by descent from a deceased person. The\nprovision that distinction \xe2\x80\x98in no case\xe2\x80\x99 shall be made between the whole and half blood does\nnot create another class of persons who will take but forbids distinction between the whole and half\nblood in the case of the persons named who are to take. The rule of the feudal law excluded from the\ninheritance descendants who were of the half blood. The rule never found favor in this\ncountry. The statute therefore expressly repeals that rule. This comes far short of creating\nanother class of persons who are to take and who are not of the blood of the deceased at all.\nPetitioners\' contention is without merit. They have no standing to make their claim. There is\na fundamental distinction between persons who are of the half blood and those without\ninheritable blood at all.\'(Italics ours.)\nThe \xe2\x80\x98kindred\xe2\x80\x99 mentioned in RCW 11.04.100, whether of the half blood or of the whole blood, are\nkindred of the intestate. The meaning of the word \xe2\x80\x98kin\xe2\x80\x99 is a blood relation. As between a stepchild\nand a stepparent there is no blood relationship, but only that designated as affinity, the relationship\nwhich one spouse, because of marriage, has to blood relatives of the other. Here there was no blood\nrelationship at all between Ernest E. Smith and his two stepdaughters.\nRCW 11.04.100 is not applicable to the facts in the case at bar. It prohibits distinction between\nkindred of the whole blood and of the half blood who are entitled to inherit under the statutes of\ndescent and distribution. The only applicable statutes are RCW 11.04.020 (Fifth), and RCW\n11.04.030(3). The stepdaughters were not decedent\'s children. He left no children. His only heir-atlaw is the respondent, the issue of his deceased child.\nIn re Sheard\'s Estate, 181 Wash. 62, 42 P.2d 34, and In re Bordeaux\' Estate, 37 Wash.2d 561, 225 P.2d\n226\n\n\x0c433, 26 A.L.R.2d 249,cited by appellants, dealt with the tie of affinity in connection with statutory\nclassification for inheritance tax purposes, and have no bearing on the disposition of this case.\nAppellants contend that they should be treated as decedent\'s natural children because they were\nraised by him and were designated as his \xe2\x80\x98children\xe2\x80\x99 in his will. No proof was offered that they were\nlawfully adopted by him. The adoption of an heir is purely statutory, and can be accomplished only\nby strict compliance with the statute. In re Renton\'s Estate, 10 Wash. 533, 39 P. 145.\nThe order settling final account and decree of distribution is affirmed.\n\nEstate of Joseph, 949 P.2d 472 (Cal. 1998)\nMOSK, J.\nPursuant to section 6400 et seq. of the Probate Code, the estate of a deceased parent may pass by\nintestate succession to his child as heir. For these purposes, the code defines the relationship of\nparent and child to exist in three situations. First, section 6450, subdivision (a), provides that the\n\xe2\x80\x9crelationship of parent and child exists between a person and the person\'s natural parents, regardless\nof the marital status of the natural parents.\xe2\x80\x9d Second, section 6450, subdivision (b), provides that the\n\xe2\x80\x9crelationship of parent and child exists between an adopted person and the person\'s adopting parent\nor parents.\xe2\x80\x9d Third, section 6454-with which we are here concerned-provides that the \xe2\x80\x9crelationship\nof parent and child exists between [a] person and the person\'s foster parent or stepparent if\xe2\x80\x9d\xe2\x80\x9c(a)\n[t]he relationship began during the person\'s minority and continued throughout the joint lifetimes of\nthe person and the person\'s foster parent or stepparent,\xe2\x80\x9d and \xe2\x80\x9c(b) [i]t is established by clear and\nconvincing evidence that the foster parent or stepparent would have adopted the person but for a\nlegal barrier.\xe2\x80\x9d Thus, this provision contains what may be called a \xe2\x80\x9ccontinuing relationship\xe2\x80\x9d\nrequirement: the relationship must have continued from minority until death. It also contains what\nmay be called a \xe2\x80\x9clegal barrier\xe2\x80\x9d requirement: A legal barrier must have been the necessary cause of\nthe failure to adopt.\nWe granted review in this proceeding in order to resolve a conflict in the Courts of Appeal\nrespecting the meaning of Probate Code section 6454. In Estate of Stevenson (1992) 11 Cal.App.4th\n852, 14 Cal.Rptr.2d 250 (hereafter sometimes Stevenson), the Sixth Appellate District held, in\nsubstance, that what would become section 6454 allows the legal barrier or barriers to adoption of\nthe foster child or stepchild by the foster parent or stepparent to have existed only at a time at which\nadoption was contemplated or attempted. In Estate of Cleveland (1993) 17 Cal.App.4th 1700, 22\nCal.Rptr.2d 590 (hereafter sometimes Cleveland), Division Five of the Second Appellate District,\ndeclining to follow Stevenson, held, in substance, that what would become the provision requires that\nthe legal barrier or barriers to adoption must have continued until death. As we shall explain, we\nconclude that the Cleveland court was right and the Stevenson court was wrong.\nI\nPetitioner, Kim Barnum-Smith, asked the Probate Department of the Superior Court of Alameda\nCounty for letters of administration of the estate of decedent, Louis Joseph, who died intestate, and\nwas subsequently issued such letters of administration.\n\n227\n\n\x0cThereupon, petitioner asked the probate court for a determination that she was decedent\'s daughter\npursuant to Probate Code section 6454 and his sole heir, and that, as such, she was entitled to\ndistribution of his estate in its entirety. Objector, James C. Joseph, who was decedent\'s brother,\nopposed.\nAfter trial, the probate court determined that petitioner was not decedent\'s daughter or heir and,\nhence, was not entitled to distribution of his estate in any part. It also revoked her letters of\nadministration of decedent\'s estate and removed her from office, concluding that, because she was\nnot an heir, she did not have a priority to serve over others, including objector.\nIn issuing orders to this effect, the probate court rendered a statement of decision, which included\nthe following:\nPetitioner \xe2\x80\x9cwas taken in by\xe2\x80\x9d decedent and his wife, who predeceased him, \xe2\x80\x9cand [was] raised\nby them during the vast period of her minority, from age three on. [They] assisted her after\nher minority by financing her efforts at San Jose State University and a local junior college.\n[Decedent] \xe2\x80\x98gave\xe2\x80\x99 [her] away at her wedding. Certainly, the relationship between [decedent\nand his wife and petitioner] satisfied the common law definition of \xe2\x80\x98foster child,\xe2\x80\x99 at least\nduring the minority and early adulthood of [petitioner], which to simplistically recite [its]\nshorthand definition means one whose wellbeing is fostered by another person. For a\nperiod, at the beginning of the relationship, and during her minority both [decedent and his\nwife] would from time to time ask [petitioner\'s] natural parents if they ... could adopt [her].\nEach such request was refused. After a while, but still during [her] minority [they]\ndiscontinued asking.\n\xe2\x80\x9cThe real problem presented by this case is concluding the legislative meaning of, and the\npurpose for, the requirement of Probate Code [section] 6454 when it requires that there be\n\xe2\x80\x98... clear and convincing evidence that the foster parent ...would have adopted the [foster child] but\nfor a legal barrier.\xe2\x80\x99 ([E]mphasis added[.]) Only two cases have surfaced which address\nthemselves to Probate Code [section] 6454 and they specifically address themselves to the\nabove mentioned [\xe2\x80\x98legal barrier\xe2\x80\x99] requirement. They are: Estate of Stevenson (1991 [1992]) 11\nCal.App.4th [852, 14 Cal.Rptr.2d 250,] and Estate of Cleveland (1993) 17 Cal.App.4th [1700, 22\nCal.Rptr.2d 590]. These decisions are diametrically opposite one to the other.\n\xe2\x80\x9cThis court is impressed with the logic, analysis and scholarship of Cleveland .... The Cleveland\nCourt carefully analyzed the legislative history of this novel reform to the law of intestate\nsuccession and concluded that [section] 6454\'s [\xe2\x80\x98legal barrier\xe2\x80\x99] requirement means what it\nsays and says what it means. The public policy reasons for the enactment of [section] 6454\nare satisfied by the Cleveland Court\'s decision and it appears to this court that Stevenson... goes\nwell beyond the intent of the legislation in [its] conclusion.\n\xe2\x80\x9cFactually, in this case [decedent], the last to die of the [spouses], could have pursued an\nadult adoption had he really wanted to establish a parent/child relationship with [petitioner].\nAdditionally, he could have written a will leaving his property to [her] had he intended for\nher to succeed to his property. (He clearly was aware of the benefits of the use of a will, as\nhe used the services of the [l]awyer who now represents [petitioner] to write a will many\nyears before his death.) We cannot know what [decedent\'s] intentions were regarding the\ndevolution of his estate, except as he expressed them as to his predeceased spouse when he\n228\n\n\x0cwrote his will. Although it is not an insignificant fact that he did not express any\ntestamentary intent toward [petitioner] as a successor beneficiary should, as actually\nhappened, his wife have predeceased him. Cleveland... envisioned just such a case as this when\nit recognized that any number of reasons could exist for not wanting a \xe2\x80\x98foster child\xe2\x80\x99 to\nsucceed to one\'s property including loss of affection, disappointment, favoring relatives,\ndissatisfaction with the choice of the \xe2\x80\x98foster child\'s\' spouse, to name but a few. In this case\n[petitioner] obtained her majority age on October 15, 1974, some twenty one years before\n[decedent\'s] death. Surely, that passage of time cannot be ignored.... [Decedent and his wife]\nduring their life had ample opportunity to control the outcome and for whatever [sic] reason\nchose not to. To conclude that [decedent] wanted [petitioner] to inherit his property is\npresumptuous and not consistent with the Legislature\'s reasons for enactment of \xc2\xa7 6454.\n\xe2\x80\x9cTherefore, it is the ruling of this court that the provisions of Probate Code [section] 6454\nhave not been satisfied by the relationship between [petitioner] and [decedent, and] that she\nhas [not] shown by clear and convincing evidence that [he] would have adopted [her] but for\na legal barrier.\xe2\x80\x9d (original italics.)\nFrom the probate court\'s orders, petitioner appealed to the First Appellate District of the Court of\nAppeal. She proceeded without a reporter\'s or clerk\'s transcript, electing to prepare an appendix in\nlieu of the latter. She did so, as she would later explain, \xe2\x80\x9c[b]ecause the material facts,\xe2\x80\x9d as disclosed in\nthe probate court\'s statement of decision, \xe2\x80\x9care undisputed.\xe2\x80\x9d\nIn an opinion certified for publication, Division Three of the First Appellate District, to which the\ncause was assigned, unanimously affirmed the probate court\'s orders. All but expressly applying the\nstandard of independent review, and following Cleveland instead of Stevenson, it agreed with the\nimplied conclusion that Probate Code section 6454 requires that the legal barrier or barriers to\nadoption of the foster child or stepchild by the foster parent or stepparent must have begun during\nthe foster child or stepchild\'s minority, and must have continued throughout the joint lifetimes of\nthe foster child or stepchild and the foster parent or stepparent. Impliedly using what appears to be\nthe substantial evidence test, it sustained the express finding that petitioner failed to establish by\nclear and convincing evidence that decedent would have adopted her but for a legal barrier: Under\nthe provision, a legal barrier to adoption had to have continued until death; she admitted, however,\nthat such a barrier did not perdure.\nAt petitioner\'s request, we granted review. We now affirm.\nII\nIn 1931, the Legislature enacted the original Probate Code. (Stats.1931, ch. 281.) It incorporated\ntherein the substance of provisions from the Civil Code, the Code of Civil Procedure, and two\nuncodified statutes, and then repealed the provisions in question. (Evans v. Superior Court (1932) 215\nCal. 58, 61, 8 P.2d 467.)\nIn 1980, the Legislature directed the California Law Revision Commission (hereafter the Law\nRevision Commission or simply the commission) to study, among other topics, \xe2\x80\x9c[w]hether the\nCalifornia Probate Code should be revised, including but not limited to whether California should\nadopt, in whole or in part, the Uniform Probate Code....\xe2\x80\x9d (Assem. Conc. Res. No. 107, Stats. 1980\n(1979-1980 Reg. Sess.) res. ch. 37, p. 5086.)\n229\n\n\x0cIn the course of its study over the years that followed, the Law Revision Commission submitted\nvarious recommendations to the Legislature to revise the original Probate Code in various ways,\nsome in line with the Uniform Probate Code, some not.\nSo far as the law of intestate succession was concerned, the Law Revision Commission had as its\npurpose to \xe2\x80\x9cprovide\xe2\x80\x9d new \xe2\x80\x9crules,\xe2\x80\x9d framed in light of \xe2\x80\x9cchanges in the American family and in public\nattitudes,\xe2\x80\x9d \xe2\x80\x9cthat are more likely\xe2\x80\x9d than the old ones \xe2\x80\x9cto carry out ... the intent a decedent without a\nwill is most likely to have had,\xe2\x80\x9d evidently at the time of death, and to do so in a \xe2\x80\x9cmore efficient and\nexpeditious\xe2\x80\x9d manner. (Tent. Recommendation Relating to Wills and Intestate Succession\n(Nov.1982) 16 Cal. Law Revision Com. Rep. (1982) pp. 2318, 2319.) From all that appears, the\nLegislature had the same purpose. (Estate of Cleveland, supra, 17 Cal.App.4th at p. 1706, 22 Cal.Rptr.2d\n590.)\nIn 1983, the Legislature added section 6408 to the Probate Code. (Stats.1983, ch. 842, \xc2\xa7 55, pp.\n3083-3084.)\nProbate Code section 6408, subdivision (a)(2), provided: \xe2\x80\x9cThe relationship of parent and child exists\nbetween an adopted person and his or her adopting parent or parents. The relationship between a\nperson and his or her foster parent, and between a person and his or her stepparent, has the same\neffect as if it were an adoptive relationship if (i) the relationship began during the person\'s minority\nand continued throughout the parties\' joint lifetimes and (ii) it is established by clear and convincing\nevidence that the foster parent or stepparent would have adopted the person but for a legal barrier.\xe2\x80\x9d\n(Stats.1983, ch. 842, \xc2\xa7 55, p. 3083.) One such legal barrier exists \xe2\x80\x9cwhere ... a parent of the\xe2\x80\x9d \xe2\x80\x9cfoster\nchild or stepchild\xe2\x80\x9d \xe2\x80\x9crefuses to consent to the adoption.\xe2\x80\x9d (Sen. Com. on Judiciary, Rep. on Assem.\nBills No. 25 & 68 (1983-1984 Reg. Sess.) 3 Sen. J. (1983-1984 Reg. Sess.) p. 4882 [hereafter Senate\nCommittee on Judiciary Report].)\nProbate Code section 6408, subdivision (a)(2), was new to California law. (Senate Committee on\nJudiciary Report, supra, 3 Sen. J. (1983-1984 Reg. Sess.) p. 4882; see Estate of Cleveland, supra, 17\nCal.App.4th at p. 1704, 22 Cal.Rptr.2d 590; Estate of Claffey (1989) 209 Cal.App.3d 254, 256, 257\nCal.Rptr. 197.) Moreover, it appears to have been, and to have remained, unique to this state among\nAmerican jurisdictions. (Meadow &Loeb, Heirs Unapparent (June 1994) L.A.Law. 34, 38; Note,\nIntestate Succession for Stepchildren: California Leads the Way, but Has It Gone Far Enough? (1995) 47\nHastings L.J. 257, 260 [speaking only of stepparents and stepchildren]; Mahoney, Stepfamilies in the\nLaw of Intestate Succession and Wills (1989) 22 U.C. Davis L.Rev. 917, 929 [same]; see Estate of Cleveland,\nsupra, 17 Cal.App.4th at pp. 1704-1705, fn. 6, 22 Cal.Rptr.2d 590; see also 8 West\'s U. Laws Ann.\n(1983) U. Prob.Code (1969) \xc2\xa7 2-109, pp. 66-67 [making no provision for foster parents and foster\nchildren or stepparents and stepchildren]; cf. id., \xc2\xa7 1-201(3), p. 30 [excluding from the definition of a\n\xe2\x80\x9cchild,\xe2\x80\x9d in pertinent part, \xe2\x80\x9cany person who is only a stepchild ... [or] a foster child\xe2\x80\x9d]; id. (1997 supp.)\n\xc2\xa7 1-201(5), p. 12 (1990 rev.) [same]; former Prob.Code, \xc2\xa7 26, added by Stats.1983, ch. 842, \xc2\xa7 21, p.\n3026 [same]; id., as amended by Stats.1984, ch. 892, \xc2\xa7 4, p. 2988 [deleting the exclusion]; but see Estate\nof Claffey, supra, 209 Cal.App.3d at p. 256, 257 Cal.Rptr. 197 [stating, incorrectly, that this \xe2\x80\x9cinnovative\nportion\xe2\x80\x9d was \xe2\x80\x9cadapted from the Uniform Probate Code\xe2\x80\x9d].)\nProbate Code section 6408, subdivision (a)(2), was proposed to the Legislature by the Law Revision\nCommission. It was not submitted as a recommendation originally. (Tent. Recommendation\nRelating to Wills and Intestate Succession, supra, 16 Cal. Law Revision Com. Rep. (1982) at pp. 2459230\n\n\x0c2460; see id. at p. 2460 [Cal. Law Revision Com. com. on Prob.Code, \xc2\xa7 6408: \xe2\x80\x9c[a] person who is only\na stepchild [or a] foster child ... is not a \xe2\x80\x98child[,]\xe2\x80\x99 \xe2\x80\x9d and \xe2\x80\x9c[a] person who is only a stepparent [or a]\nfoster parent ... is not a \xe2\x80\x98parent[ ]\xe2\x80\x99 \xe2\x80\x9d]; see generally Estate of Claffey, supra, 209 Cal.App.3d at p. 258,\n257 Cal.Rptr. 197; Estate of Cleveland, supra, 17 Cal.App.4th at p. 1705, 22 Cal.Rptr.2d 590 [following\nClaffey ].) It came later. (Estate of Claffey, supra, 209 Cal.App.3d at p. 258, 257 Cal.Rptr. 197; Estate of\nCleveland, supra, 17 Cal.App.4th at p. 1705, 22 Cal.Rptr.2d 590 [following Claffey].) It evidently found\nits source in the notes of one of the commission\'s expert consultants, who drafted language that was\nvirtually identical to what would subsequently be enacted, in order \xe2\x80\x9cto provide for step- and foster\nchildren in very limited situations, with the necessary safeguards incorporated by treating the case\nlike an adoption, for which qualifications, exceptions, etc. are elsewhere worked out.\xe2\x80\x9d\nIn 1984, the Legislature redesignated the pertinent part of Probate Code section 6408, subdivision\n(a)(2), quoted above, as subdivision (a)(3), with virtually no change in language and absolutely no\nchange in substance. (Stats.1984, ch. 892, \xc2\xa7 41.5, p. 3000.)\nIn 1985, the Legislature redesignated Probate Code section 6408, subdivision (a)(3), as subdivision\n(b), with some change in language, to cause the provision to stand alone without reference to the\none dealing with the adoptive relationship, but with no change in substance. (Stats.1985, ch. 982, \xc2\xa7\n21, p. 3118.)\nIn 1990, the Legislature repealed the original Probate Code, as amended (Stats.1990, ch. 79, \xc2\xa7 13, p.\n463), and enacted a new one (Stats.1990, ch. 79, \xc2\xa7 14, p. 463 et seq.), which remains in effect today.\nIn so doing, it repealed former Probate Code section 6408, subdivision (b) (Stats.1990, ch. 79, \xc2\xa7 13,\np. 463), and enacted a new Probate Code section 6408, subdivision (e), which was identical thereto\n(Stats.1990, ch. 79, \xc2\xa7 14, p. 722). (See Recommendation Proposing New Probate Code (Dec.1989)\n20 Cal. Law Revision Com. Rep. (1990) pp. 1468-1471.)\nIn 1993, the Legislature repealed Probate Code section 6408, including subdivision (e) (Stats.1993,\nch. 529, \xc2\xa7 4), and added section 6454 (Stats.1993, ch. 529, \xc2\xa7 5), which continues its substance in its\npresent form (Annual Rep. for 1993 (1993) 23 Cal. Law Revision Com. Rep. (1993) p. 1006): \xe2\x80\x9c[T]he\nrelationship of parent and child exists between [a] person and the person\'s foster parent or\nstepparent if\xe2\x80\x9d\xe2\x80\x9c(a) [t]he relationship began during the person\'s minority and continued throughout\nthe joint lifetimes of the person and the person\'s foster parent or stepparent,\xe2\x80\x9d and \xe2\x80\x9c(b) [i]t is\nestablished by clear and convincing evidence that the foster parent or stepparent would have\nadopted the person but for a legal barrier.\xe2\x80\x9d (Stats.1993, ch. 529, \xc2\xa7 5.)\nAfter review, we believe-like the Cleveland court and unlike the Stevenson court-that Probate Code\nsection 6454 should be read to require that the legal barrier or barriers to adoption of the foster\nchild or stepchild by the foster parent or stepparent must have begun during the foster child or\nstepchild\'s minority, and must have continued throughout the joint lifetimes of the foster child or\nstepchild and the foster parent or stepparent, and that the provision should not be read to allow\nsuch barrier or barriers to have existed only at a time at which adoption was contemplated or\nattempted.\nOur reading of Probate Code section 6454 is consistent with the words that it uses. It is easy to\nconclude that the provision\'s \xe2\x80\x9clegal barrier\xe2\x80\x9d requirement mandates that a legal barrier to adoption\nmust have continued until death and also mandates, by implication, that an intent to adopt must\nhave continued as well. If a legal barrier to adoption did not continue, it could not continue to be the\n231\n\n\x0cnecessary cause of the failure to adopt: It could not operate when it was not effective. If a legal\nbarrier to adoption did not continue together with an intent to adopt, it did not continue to be the\nnecessary cause of the failure to adopt: It may not be said to have prevented what was not even\nundertaken. By contrast, it is hard to conclude that the provision\'s \xe2\x80\x9clegal barrier\xe2\x80\x9d requirement allows\na legal barrier to adoption to have existed only at a time at which adoption was contemplated or\nattempted. If a barrier of this sort existed only at some such moment, perhaps ephemerally in the far\ndistant past, it was not a necessary cause of the failure to adopt at any of the others. The \xe2\x80\x9clegal\nbarrier\xe2\x80\x9d requirement is, \xe2\x80\x9cbut for a legal barrier\xe2\x80\x9d to adoption, \xe2\x80\x9cthe foster parent or stepparent would\nhave adopted\xe2\x80\x9d the foster child or stepchild. (Prob.Code, \xc2\xa7 6454, subd. (b).) It is not, \xe2\x80\x9cbut for a legal\nbarrier\xe2\x80\x9d to adoption at a time at which adoption was contemplated or attempted, \xe2\x80\x9cthe foster parent or\nstepparent would have adopted\xe2\x80\x9d the foster child or stepchild at that time.\nOur reading of Probate Code section 6454 also suits the purpose that underlies the code generally,\nthat is, to pass the estate of an intestate decedent in accordance with the \xe2\x80\x9cintent\xe2\x80\x9d that he \xe2\x80\x9cis most\nlikely to have had\xe2\x80\x9d at the time of death, and to do so in an \xe2\x80\x9cefficient and expeditious\xe2\x80\x9d manner.\n(Tent. Recommendation Relating to Wills and Intestate Succession, supra, 16 Cal. Law Revision\nCom. Rep. (1982) at p. 2319.)\nSpecifically, our reading of Probate Code section 6454 serves the passing of the estate of an intestate\nfoster parent or stepparent in accordance with his likely intent at the time of death. It is easy to\nconclude that, had he made a will, the foster parent or stepparent would have desired to dispose of\nat least some of his property to his foster child or stepchild if a legal barrier to adoption had\ncontinued until death together with an intent to adopt. In such a case, the failure to adopt would not\nimply the nonexistence of a parent-child relationship: It would be coterminous with the inability to\nadopt because of law. There would then be a kind of parent-child relationship that would be\ntantamount to that of adoption: Not only would a legal barrier to adoption have continued until\ndeath, an intent to adopt would have continued as well. By contrast, it is hard to conclude that, had\nhe made a will, the foster parent or stepparent would have desired to dispose of any of his property\nto his foster child or stepchild if a legal barrier to adoption had existed only at a time at which\nadoption was contemplated or attempted. In such a case, the failure to adopt at some such moment\nwould not imply the existence of a parent-child relationship at any of the others: It would not be\npreceded or succeeded by the inability to adopt because of law. When that moment was years or\neven decades before death, it would signify that what might once have approached a parent-child\nrelationship, to quote the Cleveland court, might well have suffered a \xe2\x80\x9cchange in [its] nature or\nquality\xe2\x80\x9d in the interim. (Estate of Cleveland, supra, 17 Cal.App.4th at p. 1710, 22 Cal.Rptr.2d 590.) True,\nat death, the foster child or stepchild might been have a friend to the foster parent or stepparent.\nBut a friend, as such, is not an heir. The result of all this may indeed be that a parent-child\nrelationship will be deemed to exist only in exceptional circumstances. That, however, does not\nseem to be against the provision\'s design, but rather in conformity therewith.\nOur reading of Probate Code section 6454 also serves the passing of the estate of an intestate foster\nparent or stepparent efficiently and expeditiously. To quote the Cleveland court again, it \xe2\x80\x9cinjects a\nstrong dose of certainty into\xe2\x80\x9d such matters. (Estate of Cleveland, supra, 17 Cal.App.4th at p. 1712, 22\nCal.Rptr.2d 590.) The provision\'s mandate that a legal barrier to adoption must have continued until\ndeath, together with an intent to adopt, eliminates, or at least reduces, marginal claims, whether\ngenuine or sham, based on little more than an assertion that such a barrier existed only at a time at\nwhich adoption was contemplated or attempted. Otherwise, as the Cleveland court explained, there\nmight be \xe2\x80\x9cclaims by a stepchild or foster child if at any time during his minority the stepparent [or\n232\n\n\x0cfoster parent] expressed a desire to adopt but was denied the consent of the natural parent. Any\nsuch child could claim an intestate share of the decedent\'s estate at his death-no matter how many\nyears elapsed after the removal of the legal impediment. Operating from the stalest sort of evidence,\nthe probate court must then determine whether, \xe2\x80\x98but for\xe2\x80\x99 that legal impediment the decedent would\nhave adopted the [child] during his minority and must negate the existence of other reasons for\ndecedent\'s abandonment of the adoption. In such cases, of course, the decedent is unavailable to\nrebut these claims asserted by persons with a direct financial interest. Often, the only corroborating\ntestimony is from the nonconsenting [natural] parent who may also be financially interested in the\noutcome. Typically, there will be no other disinterested third parties to verify the decedent\'s intent,\nsince the subject matter is commonly considered to be of a highly personal and private nature.\xe2\x80\x9d (Id.\nat pp. 1710-1711, 22 Cal.Rptr.2d 590, fn. omitted.)\nIn adopting a reading of what would become Probate Code section 6454 that is different from ours,\nthe Stevenson court gave three reasons. Let us consider each in turn.\nThe Stevenson court\'s first reason against a reading of Probate Code section 6454 like ours is that the\nfoster parent and foster child or the stepparent and stepchild \xe2\x80\x9cmay decide that\xe2\x80\x9d adoption \xe2\x80\x9cis not so\nimportant\xe2\x80\x9d \xe2\x80\x9conce\xe2\x80\x9d the foster child or stepchild \xe2\x80\x9creaches adulthood.\xe2\x80\x9d (Estate of Stevenson, supra, 11\nCal.App.4th at p. 866, 14 Cal.Rptr.2d 250.) Whether or not adoption is \xe2\x80\x9cimportant\xe2\x80\x9d simply has no\nbearing on what the provision itself requires. In any event, that adoption may not be \xe2\x80\x9cso important,\xe2\x80\x9d\nas the Cleveland court explained, does not mean that it is not important at all: \xe2\x80\x9cAdoption implicates\nestate tax planning (e.g., credits or exemptions for property passed to \xe2\x80\x98family member\xe2\x80\x99); construction\nof insurance policies (e.g., \xe2\x80\x98family member\xe2\x80\x99 exclusion); right to recover for wrongful death; right to\nsue or be sued for negligence; dependency matters ...; and custody/visitation issues (as with\n\xe2\x80\x98grandchildren\xe2\x80\x99 of the stepparent or foster parent).\xe2\x80\x9d (Estate of Cleveland, supra, 17 Cal.App.4th at p.\n1712, 22 Cal.Rptr.2d 590.) Moreover, that adoption may not be \xe2\x80\x9cso important,\xe2\x80\x9d as the Cleveland court\nalso explained, \xe2\x80\x9cwould weigh against the conclusion that\xe2\x80\x9d the foster parent or stepparent\n\xe2\x80\x9cconsidered\xe2\x80\x9d the foster child or stepchild \xe2\x80\x9cto be one of his ... \xe2\x80\x98children.\xe2\x80\x99 \xe2\x80\x9d (Id. at p. 1710, 22\nCal.Rptr.2d 590.)\nThe Stevenson court\'s second reason against a reading of Probate Code section 6454 like ours is that it\nwould cut off \xe2\x80\x9cadult\xe2\x80\x9d foster children or stepchildren. (Estate of Stevenson, supra, 11 Cal.App.4th at p.\n866, 14 Cal.Rptr.2d 250.) Its premises are that the provision\'s benefits are not limited to minors, and\nthat legal barriers to the adoption of adults do not exist. That is not the case. Like the Cleveland court,\nwe accept the former premise. There is no indication that the provision\'s benefits are limited to\nminors. (See Estate of Cleveland, supra, 17 Cal.App.4th at p. 1711, 22 Cal.Rptr.2d 590.) But also like the\nCleveland court, we reject the latter premise. Legal barriers to the adoption of adults do indeed exist\n(see Fam.Code, \xc2\xa7\xc2\xa7 9301, 9302, 9303, 9328)-and have existed since before the time of the original\nenactment of what would become the provision (see Civ.Code, former \xc2\xa7 227p, as amended by\nStats.1981, ch. 734, \xc2\xa7 1, pp. 2888-2889). They include \xe2\x80\x9cfailure to consent by the adopting person\'s\nspouse, the adoptee\'s spouse, or the adoptee,\xe2\x80\x9d the limitation of \xe2\x80\x9conly one adult adoption of\nunrelated persons per year,\xe2\x80\x9d and the requirement that an \xe2\x80\x9cadult adoption [ ] must be \xe2\x80\x98[in] the best\ninterests of the [persons seeking the adoption] and in the public interest....\xe2\x80\x99 \xe2\x80\x9d (Estate of Cleveland,\nsupra, 17 Cal.App.4th at p. 1708, fn. 10, 22 Cal.Rptr.2d 590.)\nThe Stevenson court\'s third reason against a reading of Probate Code section 6454 like ours is that the\nprovision\'s \xe2\x80\x9ccontinuing relationship\xe2\x80\x9d requirement \xe2\x80\x9csuggests\xe2\x80\x9d that the provision \xe2\x80\x9cwas meant to apply\neven after\xe2\x80\x9d the foster child or stepchild \xe2\x80\x9creached adulthood.\xe2\x80\x9d (Estate of Stevenson, supra, 11\n233\n\n\x0cCal.App.4th at p. 866, 14 Cal.Rptr.2d 250.) Any such suggestion, however, does not itself suggest\nthat the provision was not meant to apply thereafter insofar as its \xe2\x80\x9clegal barrier\xe2\x80\x9d requirement is\nconcerned.\nIn reading Probate Code section 6454 as we do, we do not overlook a recommendation by the Law\nRevision Commission, dated October 1997, relating to the provision.\nIn order to resolve the conflict between Stevenson and Cleveland in favor of Stevenson, the Law Revision\nCommission has proposed to the Legislature to amend Probate Code section 6454 to provide, in\nsubstance, that the legal barrier to adoption need only exist at a time at which adoption was\ncontemplated or attempted. (Recommendation: Inheritance by Foster Child or Stepchild (Oct.1997)\n27 Cal. Law Revision Com. Rep. (1997) p. x6 [preprint copy].) The commission asserts that such an\namendment \xe2\x80\x9cshould not lead to an increase of manufactured claims because of the requirements\nthat the parent-child relationship must continue throughout their joint lifetimes, and that evidence\nof intent to adopt must be clear and convincing.\xe2\x80\x9d (Id. at p. x7 [same].) With this point, for\nargument\'s sake only, we shall agree. The commission also asserts that a reading of the provision like\nours would assertedly \xe2\x80\x9cpreclude inheritance by virtually all adults from ... a foster parent or\nstepparent,\xe2\x80\x9d and would thereby \xe2\x80\x9cfrustrate the underlying purpose of the\xe2\x80\x9d provision \xe2\x80\x9cto carry out the\nlikely intent of the intestate decedent.\xe2\x80\x9d (Id. at p. x6 [same].) With this point, we cannot agree. To be\nsure, we give \xe2\x80\x9csubstantial weight\xe2\x80\x9d to the commission\'s understanding of a provision it proposed, like\nthe present one. (Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 249, 66 Cal.Rptr. 20, 437 P.2d 508.)\nBut, as we have explained, the provision seems to have been designed to apply only in exceptional\ncircumstances. Moreover, it is hard to conclude that, had he made a will, a foster parent or\nstepparent would have desired to dispose of any of his property to his foster child or stepchild if a\nlegal barrier to adoption had existed only at a time, perhaps years or even decades before his death,\nat which adoption was contemplated or attempted, inasmuch as what might then have approached a\nparent-child relationship could well have suffered a \xe2\x80\x9cchange in [its] nature or quality\xe2\x80\x9d in the interim.\n(Estate of Cleveland, supra, 17 Cal.App.4th at p. 1710, 22 Cal.Rptr.2d 590.)\nWhether the Legislature chooses to amend Probate Code section 6454 along the lines of the Law\nRevision Commission\'s recommendation is, without question, a matter that belongs solely to that\nbody. We do not pass on the wisdom of the provision as it may exist sometime in the future. We\nsimply read it as it stands now.\nIII\nTurning now to the case at bar-in which, as petitioner represents, the \xe2\x80\x9cmaterial facts,\xe2\x80\x9d as disclosed in\nthe probate court\'s statement of decision, \xe2\x80\x9care undisputed\xe2\x80\x9d-we believe that the Court of Appeal was\nsound in its reasoning and correct in its result when it affirmed the probate court\'s orders that\ndetermined that petitioner was not decedent\'s daughter or heir and, hence, was not entitled to\ndistribution of his estate in any part, and that revoked her letters of administration of decedent\'s\nestate and removed her from office.\nThe Court of Appeal was right as to the probate court\'s implied conclusion that Probate Code\nsection 6454 requires that the legal barrier or barriers to adoption of the foster child or stepchild by\nthe foster parent or stepparent must have begun during the foster child or stepchild\'s minority, and\nmust have continued throughout the joint lifetimes of the foster child or stepchild and the foster\nparent or stepparent. Such a conclusion is reviewed independently: It resolves a pure question of\n234\n\n\x0claw, viz., the meaning of the provision in question. (E.g., 20th Century Ins. Co. v. Garamendi (1994) 8\nCal.4th 216, 271, 32 Cal.Rptr.2d 807, 878 P.2d 566.) It survives scrutiny. The analysis set out above\nestablishes the point. Petitioner argues to the contrary. At bottom, she relies on Stevenson. But\nStevenson has been found wanting. She also relies on the comment, quoted above, that one of the\nlegal barriers to adoption exists \xe2\x80\x9cwhere ... a parent of the\xe2\x80\x9d \xe2\x80\x9cfoster child or stepchild\xe2\x80\x9d \xe2\x80\x9crefuses to\nconsent to the adoption.\xe2\x80\x9d (Senate Committee on Judiciary Report, supra, Sen. J. (1983-1984 Reg.\nSess.) p. 4882.) But that comment deals only with what such a barrier is, and not when it has to exist\nor how long it has to continue. In addition, she asserts that, in order to give the provision\'s\n\xe2\x80\x9ccontinuing relationship\xe2\x80\x9d and \xe2\x80\x9clegal barrier\xe2\x80\x9d requirements independent meaning, we should\nunderstand the former to be temporal but not causal and the latter to be causal but not temporal.\nWe cannot do so. What is temporal need not be causal. But what is causal must be temporal: A\ncause exists only when it operates; it operates only when it is effective; it is effective only when it fills\nat least one moment in time. Even though we cannot understand the provision\'s requirements as\nurged, we can nevertheless give them independent meaning: The former assures that a relationship\nbetween the foster parent or stepparent and the foster child or stepchild lasted until death, and the\nlatter assures that that relationship was tantamount to that of adoption.\nThe Court of Appeal was also right as to the probate court\'s express finding that petitioner failed to\nestablish by clear and convincing evidence that decedent would have adopted her but for a legal\nbarrier. Such a finding is reviewed for substantial evidence: It resolves a mixed question of law and\nfact that is nonetheless predominantly one of fact, inasmuch as it \xe2\x80\x9crequires application of experience\nwith human affairs....\xe2\x80\x9d (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881,\n888, 264 Cal.Rptr. 139, 782 P.2d 278.) It survives scrutiny. Petitioner does not argue to the contrary.\nUnder Probate Code section 6454, a legal barrier to adoption must have continued until death. But\nshe admitted below that such a barrier did not perdure. She makes the same admission here.\nLastly, we observe that, to the extent that the purpose of Probate Code section 6454 is to pass the\nestate of an intestate decedent in accordance with the \xe2\x80\x9cintent\xe2\x80\x9d that he \xe2\x80\x9cis most likely to have had\xe2\x80\x9d at\nthe time of death, and to do so in an \xe2\x80\x9cefficient and expeditious\xe2\x80\x9d manner (Tent. Recommendation\nRelating to Wills and Intestate Succession, supra, 16 Cal. Law Revision Com. Rep., supra, at p. 2319),\nit appears to be satisfied in this case. As the probate court stated, \xe2\x80\x9cit is not an insignificant fact that,\xe2\x80\x9d\nin his old will, decedent \xe2\x80\x9cdid not express any testamentary intent toward\xe2\x80\x9d petitioner \xe2\x80\x9cas a successor\nbeneficiary should, as actually happened, his wife have predeceased him.\xe2\x80\x9d This fact, of course, is not\nproof. But it is all there is. And it is not challenged.\nIV\nFor the reasons stated above, we conclude that we must affirm the judgment of the Court of\nAppeal.\nIt is so ordered.\nCHIN, Associate Justice, dissenting.\nIn this case, we must apply Probate Code section 6454, which provides in relevant part: \xe2\x80\x9cFor the\npurpose of determining intestate succession by a person ... from or through a foster parent or\nstepparent, the relationship of parent and child exists between that person and the person\'s foster\nparent or stepparent if both of the following requirements are satisfied: (a) The relationship began\n235\n\n\x0cduring the person\'s minority and continued throughout the joint lifetimes of the person and the\nperson\'s foster parent or stepparent. (b) It is established by clear and convincing evidence that the\nfoster parent or stepparent would have adopted the person but for a legal barrier.\xe2\x80\x9d\nThe Courts of Appeal have disagreed as to the necessary duration of the \xe2\x80\x9clegal barrier\xe2\x80\x9d that the\nstatute references. (\xc2\xa7 6454, subd. (b).) Construing section 6454\'s predecessor, the Sixth District held\nthat the legal barrier had to exist only when adoption was attempted or contemplated. (Estate of\nStevenson (1992) 11 Cal.App.4th 852, 865-866, 14 Cal.Rptr.2d 250 (Stevenson).) Construing the same\nstatute, Division Five of the Second District expressly rejected Stevenson and held that the legal\nbarrier must have existed throughout the lives of the child and the foster parent or stepparent.\n(Estate of Cleveland (1993) 17 Cal.App.4th 1700, 1709-1713, 22 Cal.Rptr.2d 590 (Cleveland ).)\nEssentially agreeing with Cleveland, the majority rewrites the statute so as to render it virtually\ninapplicable to adult foster children or stepchildren, who seldom (if ever) could demonstrate a\nlifetime legal barrier to adoption. This narrow construction is neither compelled by the words of the\nstatute nor necessary to effectuate the Legislature\'s intent. On the contrary, Stevenson\'s interpretation,\nwhich has the express endorsement of the commission that drafted the statute for the Legislature, is\nboth more logical and more consistent with the available indicia of legislative intent. Moreover, the\nadvantages that the majority claims for its construction are largely illusory. Accordingly, I cannot\njoin in the majority\'s restrictive revision of section 6454.\nNotes and Questions\n1. What are the pros and cons of permitting stepchildren and foster children to inherit from\nstepparents and foster parents?\n2. Should the Probate Court consider the relationship between the stepparent/foster parent and the\nstepchild/foster child? Should these children have to be adopted in order to obtain the right to\ninherit?\n3. What, if any, restrictions should be place on the right of stepchildren/foster children to inherit\nunder the intestacy system?\n\n236\n\n\x0cChapter Six: Intestacy (Children of Assisted Reproductive Technology)\n6.1\n\nIntroduction\n\nThe availability of assisted reproductive technology has changed the way families are being\nformed. It is now possible for a child to have at least six legal parents. Consider the following\nscenario. A and B would like to have a child, but they are both infertile. A and B purchase eggs from\nC and sperm from D. Then, they hire a surrogate E, a married woman, to gestate their embryos. A\nand B are the intended parents, so they are the legal parents. C and D are the biological parents. In\nsome jurisdictions, as a gestational surrogate, E, is the legal parent. Since the child is conceived\nduring the course of the marriage, E\xe2\x80\x99s husband may be presumed to be the legal father. The law has\nnot kept paced with the changes that assisted reproductive technology has made to the\ndetermination of paternity and maternity.\nIn this chapter, we look at the inheritance rights of three classes of children that have\nresulted from the use of assisted reproductive technology. The first section examines the rights of\nchild conceived using the sperm of dead men. These children are referred to as posthumously\nconceived children. In this section, we will focus upon the child\xe2\x80\x99s ability to inherit from his dead\nfather because that has been the subject of most of the litigation. Since it is more difficult to retrieve\neggs from a dead woman, there are no reported cases involving children conceived using the eggs of\na dead women.38 In addition, cases involving the eggs of a dead woman would implicate surrogacy\nlaws, so the maternity issues that arise are discussed in the section of this chapter that deals with\nsurrogacy.\nThe second section of this chapter looks at the ability of children conceived using artificial\ninsemination to inherit from their fathers. Numerous types of reproductive technology are available\nto help infertile couples achieve their dreams of having children. One of the oldest and most\ncommon forms of assisted reproduction is artificial insemination. Couples widely use artificial\ninsemination because it is the simplest form of assisted reproduction. The popularity of artificial\ninsemination may also be attributed to the fact that it is affordable and can be safely done without\nthe benefit of medical personnel. Artificial insemination involves sperm being placed into a woman\xe2\x80\x99s\ncervix without sexual intercourse. Thus, the procedure can be done at home using a turkey baster.\nThe widespread use of artificial insemination may be the reason why most state legislatures that have\nenacted statutes dealing with assisted reproduction have focused exclusively on artificial\ninsemination.\nThe final section of this chapter explores the inheritance rights of children who are born as\nthe result of surrogacy agreements. There are two types of surrogacy\xe2\x80\x94traditional and gestational. In\na traditional surrogacy arrangement, in essence, the person is purchasing both the eggs and the\nservices of the surrogate. The person who wishes to become a parent supplies the sperm and the\nsurrogate does the rest. After the Baby M case, traditional surrogacy fell into disfavor.39 The\n\nIn 2012, an Israeli court gave the parents of a seventeen year old girl who was killed in a car accident the right to\nharvest her eggs. The parent planned to donate the eggs to the girl\xe2\x80\x99s infertile aunt.\n39 In Baby M, the court held that surrogacy was against public policy. When the surrogate refused to surrender the child,\nthe court treated the matter like a custody dispute instead of a breach of contract case. The intended mother was not\n38\n\n237\n\n\x0cjurisdictions that permit and regulate surrogacy have limited it to gestational surrogacy. Under a\ngestational surrogacy arrangement, the surrogate provides only the womb. The maternity dispute in\nthose cases is between the intended mother and the surrogate.\n6.2\n\nPosthumously Conceived Children\n\nHeirship is determined at the person\xe2\x80\x99s death. The person\xe2\x80\x99s death is when intestate property\npasses by intestacy to the deceased\xe2\x80\x99s heirs. Before the person dies, a potential heir has no property\ninterest but merely an \xe2\x80\x9cexpectancy\xe2\x80\x9d in the dead person\xe2\x80\x99s intestate estate. The cases discussed in this\nsection involve the right of posthumously conceived children to inherit from their fathers. The\nresolution of this issue is important because the existence of posthumously conceived children has\nthe potential to impact the distribution of a man\xe2\x80\x99s estate. If the man dies with a validly executed will\nleaving his estate to his children, the question becomes whether or not posthumously conceived\nchildren should be included in the definition of \xe2\x80\x9cchildren\xe2\x80\x9d. In the event that a man dies without a\nwill, the question to be resolved is whether or not posthumously conceived children should be\nconsidered heirs under the intestacy system. The legal issues relevant to the discussion are: (1)\nWhether the posthumously conceived child should be recognized as a survivor of his or her father\nunder the state\xe2\x80\x99s intestacy system and (2) Whether the posthumously conceived child should be\ngiven the right to inherit through his or her father.\nThe issue of posthumous reproduction inheritance rights usually arises in two contexts.\nContext One: Facing a life threatening illness or situation, a man has his sperm stored for future use.\nAfter the man becomes sterile, dies or is killed, the woman uses his sperm to conceive his child.\nContext Two: A man dies or is killed without storing his sperm. Then, the woman has his sperm\nharvested from his body and uses it to conceive his child.40 The result of either context is a child\nborn years after the death of his or her father. Both scenarios mentioned above lead to the following\ntwo questions: (1) Whether the resulting child should have the opportunity to inherit from his or her\nfather, and (2) Whether any conditions should be placed on the child\xe2\x80\x99s right to inherit from his or\nher father.\nWhen reading the materials in this chapter, you should think about the interests to be\nprotected. In deciding whether or not to give posthumously conceived children the right to inherit,\nthe state must strive to protect: (1) the reproductive right of the deceased man; (2) the financial\ninterests of the posthumously conceived child; (3) the financial interests of the deceased man\xe2\x80\x99s\nexisting heirs; and (4) the integrity of the probate system.\n\ngiven standing in the case. The court awarded custody of the case to the man who supplied the sperm after deciding that\nhe would make the better parent.\n40 In 1997, Art Caplan, the Director for Bioethics at the University of Pennsylvania, and several colleagues conducted a\nstudy of fertility clinics to find out the number of clinics that had extracted sperm from a deceased man. The results of\nthe study indicated that the practice of taking sperm from dead men has become more common. Gina Kolata, Uncertain\nArea for Doctors: Saving Sperm of Dead Men, The New York Times, www. nytimes.com (May 30, 1997). Media\ncoverage like this one led to attempts by the government to regulate the process. For example, Roy Goodman, a\nRepublican New York state senator, introduced a bill that would have regulated the extraction and preservation of the\nsperm of dead men. Under the bill\xe2\x80\x99s mandates, doctors could only remove sperm from dead men who had given written\npermission for the extraction prior to death. The bill was never enacted into law. See Ian Fisher, Bill Would Govern Use\nof Dead Men\xe2\x80\x99s Sperm, nytimes.com (March 7, 1998).\n\n238\n\n\x0c6.2.1\n\nThe Right to Inherit From Fathers\n\nPersons involved in these cases usually have modest means and are not interested in\ninheriting from the dead men\xe2\x80\x99s estates. Litigation occurs when the women apply for and are denied\nSocial Security Survivors\xe2\x80\x99 benefits. The Social Security Act does not include provisions dealing with\nposthumously conceived children, so, when determining a child\xe2\x80\x99s eligibility for benefits, the Agency\nrelies upon the intestacy laws of the state where the man dies. If the child is not considered to be the\nman\xe2\x80\x99s heir under the intestacy system, he or she is not eligible for benefits under the Social Security\nAct.\n\nAstrue v. Capato ex. Rel. B.N.C., 132 S. Ct. 2021 (2012)\nGINSBURG, J., delivered the opinion for a unanimous Court.\nEighteen months after her husband, Robert Capato, died of cancer, respondent Karen Capato gave\nbirth to twins conceived through in vitro fertilization using her husband\xe2\x80\x99s frozen sperm. Karen\napplied for Social Security Survivors benefits for the twins. The Social Security Administration (SSA)\ndenied her application, and the District Court affirmed. In accord with the SSA\xe2\x80\x99s construction of the\nSocial Security Act (Act), the court determined that the twins would qualify for benefits only if, as 42\nU.S.C. \xc2\xa7416(h)(2)(A) specifies, they could inherit from the deceased wage earner under state\nintestacy law. The court then found that Robert was domiciled in Florida at his death, and that\nunder Florida law, posthumously conceived children do not qualify for inheritance through intestate\nsuccession. The Third Circuit reversed. It concluded that, under. \xc2\xa7416(e), which defines child to\nmean, inter alia, \xe2\x80\x9cthe child or legally adopted child of an [insured] individual,\xe2\x80\x9d the undisputed\nbiological children of an insured and his widow qualify for survivors benefits without regard to state\nintestacy law.\nHeld: The SSA\xe2\x80\x99s reading is better attuned to the statute\xe2\x80\x99s text and its design to benefit primarily those\nsupported by the deceased wage earner in his or her lifetime. Moreover, even if the SSA\xe2\x80\x99s\nlongstanding interpretation is not the only reasonable one, it is at least a permissible construction\nentitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,\n104 S.Ct. 2778, 81 L.Ed.2d 694. Pp. 2027 \xe2\x80\x93 2034.\n(a) Congress amended the Act in 1939 to provide that, as relevant here, \xe2\x80\x9c[e]very child (as defined in\nsection 416(e) of this title)\xe2\x80\x9d of a deceased insured individual \xe2\x80\x9cshall be entitled to a child\xe2\x80\x99s insurance\nbenefit.\xe2\x80\x9d \xc2\xa7412(d). Section 416(e), in turn, defines \xe2\x80\x9cchild\xe2\x80\x9d to mean: \xe2\x80\x9c(1) the child or legally adopted\nchild of an individual, (2) a stepchild [under certain circumstances], and (3) ... the grandchild or step\ngrandchild of an individual or his spouse [under certain conditions].\xe2\x80\x9d Unlike \xc2\xa7 416(e)(2) and (3), \xc2\xa7\n416(e)(1) lacks any elaboration of the conditions under which a child qualifies for benefits. Section\n416(h)(2)(A), however, further addresses the term \xe2\x80\x9cchild,\xe2\x80\x9d providing: \xe2\x80\x9cIn determining whether an\napplicant is the child or parent of [an] insured individual for purposes of this subchapter, the\nCommissioner of Social Security shall apply [the intestacy law of the insured individual\xe2\x80\x99s domiciliary\nState].\xe2\x80\x9d An applicant who does not meet \xc2\xa7 416(h)(2)(A)\xe2\x80\x99s intestacy-law criterion may nonetheless\nqualify for benefits under other criteria set forth in \xc2\xa7416(h)(2)(B) and (h)(3), but respondent does\nnot claim eligibility under those other criteria. Regulations promulgated by the SSA closely track. \xc2\xa7\n416(h)(2) and (3) in defining \xe2\x80\x9c[w]ho is the insured\xe2\x80\x99s natural child,\xe2\x80\x9d 20 CFR \xc2\xa7 404.355. 42 U.S.C. \xc2\xa7\n416(e) As the SSA reads the statute, 42 U.S.C. \xc2\xa7 416(h) governs the meaning of \xe2\x80\x9cchild\xe2\x80\x9d in \xc2\xa7 416(e)(1)\n239\n\n\x0cand serves as a gateway through which all applicants for insurance benefits as a \xe2\x80\x9cchild\xe2\x80\x9d must pass.\nPp. 2027 \xe2\x80\x93 2029. 841757941\n(b) While the SSA regards \xc2\xa7416(h) as completing \xc2\xa7416(e)\xe2\x80\x99s sparse definition of \xe2\x80\x9cchild,\xe2\x80\x9d the Third\nCircuit held, and respondent contends, that \xc2\xa7416(e) alone governs whenever the claimant is a\nmarried couple\xe2\x80\x99s biological child. There are conspicuous flaws in the Third Circuit\xe2\x80\x99s and\nrespondent\xe2\x80\x99s reading; the SSA offers the more persuasive interpretation. Pp. 2028 \xe2\x80\x93 2033.\n(1) Nothing in \xc2\xa7416(e)\xe2\x80\x99s tautological definition suggests that Congress understood the word \xe2\x80\x9cchild\xe2\x80\x9d\nto refer only to the children of married parents. The dictionary definitions offered by respondent are\nnot so confined. Moreover, elsewhere in the Act, Congress expressly limited the category of children\ncovered to offspring of a marital union, see \xc2\xa7402 (d)(3)(A), and contemporaneous statutes similarly\ndistinguish child of a marriage from the unmodified term \xe2\x80\x9cchild.\xe2\x80\x9d Nor does \xc2\xa7416(e) indicate that\nCongress intended \xe2\x80\x9cbiological\xe2\x80\x9d parentage to be prerequisite to \xe2\x80\x9cchild\xe2\x80\x9d status. A biological parent is\nnot always a child\xe2\x80\x99s parent under law. Furthermore, marriage does not necessarily make a child\xe2\x80\x99s\nparentage certain, nor does the absence of marriage necessarily make a child\xe2\x80\x99s parentage uncertain.\nFinally, it is far from obvious that respondent\xe2\x80\x99s proposed definition would cover her posthumously\nconceived twins, for under Florida law a marriage ends upon the death of a spouse. Pp. 2029 \xe2\x80\x93 2031.\n(2) The SSA finds a key textual cue in \xc2\xa7 416(h)(2)(A)\xe2\x80\x99s opening instruction: \xe2\x80\x9cIn determining whether\nan applicant is the child ... of [an] insured individual for purposes of this subchapter,\xe2\x80\x9d the\nCommissioner shall apply state intestacy law. Respondent notes the absence of any cross-reference\nin \xc2\xa7 416(e) to \xc2\xa7 416(h), but she overlooks that \xc2\xa7 416(h) provides the crucial link: It requires reference\nto state intestacy law to determine child status not just for \xc2\xa7 416(h) purposes, but \xe2\x80\x9cfor purposes of\nthis subchapter,\xe2\x80\x9d which includes both \xc2\xa7\xc2\xa7 402(d) and 416(e). Having explicitly complemented \xc2\xa7\n416(e) by the definitional provisions contained in \xc2\xa7 416(h), Congress had no need to place a\nredundant cross-reference in \xc2\xa7 416(e).\nThe Act commonly refers to state law on matters of family status, including an applicant\xe2\x80\x99s status as a\nwife, widow, husband, or widower. See, e.g., \xc2\xa7 416(h)(1)(A). The Act also sets duration-ofrelationship limitations, see Weinberger v. Salfi, 422 U.S. 749, 777-782, 95 S.Ct. 2457, 45 L.Ed.2d 522,\nand time limits qualify the statutes of several States that accord inheritance rights to posthumously\nconceived children. In contrast, no time constraint attends the Third Circuit\xe2\x80\x99s ruling in this case,\nunder which the biological child of married parents is eligible for survivors benefits, no matter the\nlength of time between the father\xe2\x80\x99s death and the child\xe2\x80\x99s conception and birth.\nBecause a child who may take from a father\xe2\x80\x99s estate is more likely to \xe2\x80\x9cbe dependent during the\nparent\xe2\x80\x99s life and at his death,\xe2\x80\x9d Matthews v. Lucas, 427 I.S. 495, 514 96 S.Ct. 2755, 49 L.Ed.2d 651,\nreliance on state intestacy law to determine who is a \xe2\x80\x9cchild\xe2\x80\x9d serves the Act\xe2\x80\x99s driving objective, which\nis to \xe2\x80\x9cprovide ... dependent members of [a wage earner\xe2\x80\x99s] family with protection against the hardship\noccasioned by [the] loss of [the insured\xe2\x80\x99s] earnings,\xe2\x80\x9d Califano v. Jobst, 434 U.S. 47, 52, 98 S.Ct. 95, 54\nL.Ed.2d 228. Although the Act and regulations set different eligibility requirements for adopted\nchildren, stepchildren, grandchildren, and step grandchildren, it hardly follows, as respondent argues,\nthat applicants in those categories are treated more advantageously than are children who must meet\na \xc2\xa7416(h) criterion. Respondent charges that the SSA\xe2\x80\x99s construction of the Act raises serious\nconstitutional concerns under the equal protection component of the Due Process Clause. But\nunder rational-basis review, the appropriate standard here, the regime passed by Congress easily\npasses inspection. Pp. 2030 \xe2\x80\x93 2033.\n240\n\n\x0c(c) Because the SSA\xe2\x80\x99s interpretation of the relevant provisions, is at least reasonable, the agency\xe2\x80\x99s\nreading is entitled to this Court\xe2\x80\x99s deference under Chevron, 467 U.S. 837, 104 104 S.Ct. 2778, 81\nL.Ed.2d 694. Chevron deference is appropriate \xe2\x80\x9cwhen it appears that Congress delegated authority to\nthe agency generally to make rules carrying the force of law, and that the agency interpretation\nclaiming deference was promulgated in the exercise of that authority.\xe2\x80\x9d United States v. Mead Corp., 533\nU.S. 218, 226-227, 121 S.Ct. 2164, 150 L.Ed.2d 292. Here, the SSA\xe2\x80\x99s longstanding interpretation, set\nforth in regulations published after notice-and-comment rulemaking, is neither \xe2\x80\x9carbitrary or\ncapricious in substance, [n]or manifestly contrary to the statute.\xe2\x80\x9d Mayo Foundation for Medical Ed. and\nResearch v. United States, 562 U.S.-----, ------, 131 S.Ct. 704, 711, 178 L.Ed.2d 588. It therefore\nwarrants the Court\xe2\x80\x99s approbation. Pp. 2033 \xe2\x80\x93 2034.\n631 F.2d 626, reversed and remanded.\n\nWoodward41 v. Commissioner of Social Sec., 760 N.E.2d 257 (Mass. 2002)\nMARSHALL, C.J.\nThe United States District Court for the District of Massachusetts has certified the following\nquestion to this court. See S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981).\n\xe2\x80\x9cIf a married man and woman arrange for sperm to be withdrawn from the husband for the purpose\nof artificially impregnating the wife, and the woman is impregnated with that sperm after the man,\nher husband, has died, will children resulting from such pregnancy enjoy the inheritance rights of\nnatural children under Massachusetts\' law of intestate succession?\xe2\x80\x9d\nWe answer the certified question as follows: In certain limited circumstances, a child42 resulting from\nposthumous reproduction may enjoy the inheritance rights of \xe2\x80\x9cissue\xe2\x80\x9d under the Massachusetts\nintestacy statute. These limited circumstances exist where, as a threshold matter, the surviving parent\nor the child\'s other legal representative demonstrates a genetic relationship between the child and\nthe decedent. The survivor or representative must then establish both that the decedent affirmatively\nconsented to posthumous conception and to the support of any resulting child. Even where such\ncircumstances exist, time limitations may preclude commencing a claim for succession rights on\nbehalf of a posthumously conceived child. Because the government has conceded that the timeliness\nof the wife\'s paternity action under our intestacy law is irrelevant to her Federal appeal, we do not\naddress that question today.\nThe United States District Court judge has not asked us to determine whether the circumstances\ngiving rise to succession rights for posthumously conceived children apply here. In addition, she has\nLauren Woodward (wife), on her own behalf as parent and guardian and on behalf of her minor children, and as\nadministratrix of the estate of Warren Woodward (husband).\n42 The term \xe2\x80\x9cnatural child\xe2\x80\x9d (or \xe2\x80\x9cnatural children\xe2\x80\x9d) does not occur in any applicable Massachusetts statute. It is a term\ndrawn from Federal legislation. See, e.g., 42 U.S.C. \xc2\xa7 416(e) (1994) and 20 C.F.R. \xc2\xa7 404.355 (2001) (defining the term\n\xe2\x80\x9cnatural child\xe2\x80\x9d). Our inquiry is directed solely to the language of the applicable Massachusetts statutes.\n41\n\n241\n\n\x0cremoved from our consideration the question whether the paternity judgment obtained by the wife\nin this case was valid. See note 6, infra. We answer only the certified question. See Canal Elec. Co. v.\nWestinghouse Elec. Corp., 406 Mass. 369, 370 n. 1, 548 N.E.2d 182 (1990); Cabot Corp. v. Baddour, 394\nMass. 720, 721, 477 N.E.2d 399 (1985).\nI\nThe undisputed facts and relevant procedural history are as follows. In January, 1993, about three\nand one-half years after they were married, Lauren Woodward and Warren Woodward were\ninformed that the husband had leukemia. At the time, the couple was childless. Advised that the\nhusband\'s leukemia treatment might leave him sterile, the Woodwards arranged for a quantity of the\nhusband\'s semen to be medically withdrawn and preserved, in a process commonly known as\n\xe2\x80\x9csperm banking.\xe2\x80\x9d The husband then underwent a bone marrow transplant. The treatment was not\nsuccessful. The husband died in October, 1993, and the wife was appointed administratrix of his\nestate.\nIn October, 1995, the wife gave birth to twin girls. The children were conceived through artificial\ninsemination using the husband\'s preserved semen. In January, 1996, the wife applied for two forms\nof Social Security survivor benefits: \xe2\x80\x9cchild\'s\xe2\x80\x9d benefits under 42 U.S.C. \xc2\xa7 402(d)(1) (1994 & Supp. V\n1999), and \xe2\x80\x9cmother\'s\xe2\x80\x9d benefits under 42 U.S.C. \xc2\xa7 402(g)(1) (1994).43\nThe Social Security Administration (SSA) rejected the wife\'s claims on the ground that she had not\nestablished that the twins were the husband\'s \xe2\x80\x9cchildren\xe2\x80\x9d within the meaning of the Act.44 In\nFebruary, 1996, as she pursued a series of appeals from the SSA decision, the wife filed a \xe2\x80\x9ccomplaint\nfor correction of birth record\xe2\x80\x9d in the Probate and Family Court against the clerk of the city of\nBeverly, seeking to add her deceased husband as the \xe2\x80\x9cfather\xe2\x80\x9d on the twins\' birth certificates. In\nOctober, 1996, a judge in the Probate and Family Court entered a judgment of paternity and an\norder to amend both birth certificates declaring the deceased husband to be the children\'s father. In\nhis judgment of paternity, the Probate Court judge did not make findings of fact, other than to state\nthat he \xe2\x80\x9caccepts the [s]tipulations of [v]oluntary [a]cknowledgment of [p]arentage of [the children] ...\nexecuted by [the wife] as [m]other, and [the wife], [a]dministratrix of the [e]state of [the husband],\nfor father.\xe2\x80\x9d See G.L. c. 209C, \xc2\xa7 11.45\n\nAt the time of his death, the husband was a fully insured individual under the United States Social Security Act\n(Act). Section 402(d)(1) of 42 U.S.C. provides \xe2\x80\x9cchild\'s\xe2\x80\x9d benefits to dependent children of deceased parents who die\nfully insured under the Act. See 42 U.S.C. \xc2\xa7 402(d)(1); 20 C.F.R. \xc2\xa7 404.350. Section 402(g)(1) of 42 U.S.C. provides\n\xe2\x80\x9cmother\'s\xe2\x80\x9d benefits to the widow of an individual who died fully insured under the Act, if, inter alia, she has care of a\nchild or children entitled to child\'s benefits. See 42 U.S.C. \xc2\xa7 402(g)(1); 20 C.F.R. \xc2\xa7 404.339 (2001). Thus, the wife\'s\neligibility for Social Security survivor benefits hinges on her children\'s eligibility for such benefits.\n44 The Act defines children, in pertinent part, as the \xe2\x80\x9cchild or legally adopted child of an individual.\xe2\x80\x9d See 42 U.S.C. \xc2\xa7\n416(e). The term \xe2\x80\x9cchild\xe2\x80\x9d includes \xe2\x80\x9cnatural child.\xe2\x80\x9d See 20 C.F.R. \xc2\xa7 404.355. The Act also establishes presumptions of\ndependency for certain classes of children, as well as other mechanisms for establishing dependency. As stated in the\ncertification order, the wife\'s \xe2\x80\x9cappeal centers on only one possible basis for eligibility, which is that under SSA\nregulations the children are eligible if they would be treated as [the husband\'s] natural children for the disposition of his\npersonal property under the Massachusetts law of intestate succession. See 42 U.S.C. \xc2\xa7\xc2\xa7 402(d)(3) and 416(h)(2)(A); 20\nC.F.R. \xc2\xa7 404.355(a)(1); 20 C.F.R. \xc2\xa7 404.361(a).\xe2\x80\x9d\n45 The voluntary acknowledgments of parentage are not part of the certification record before us.\n43\n\n242\n\n\x0cThe wife presented the judgment of paternity and the amended birth certificates to the SSA, but the\nagency remained unpersuaded. A United States administrative law judge, hearing the wife\'s claims de\nnovo, concluded, among other things, that the children did not qualify for benefits because they \xe2\x80\x9care\nnot entitled to inherit from [the husband] under the Massachusetts intestacy and paternity\nlaws.\xe2\x80\x9d46 The appeals council of the SSA affirmed the administrative law judge\'s decision, which\nthus became the commissioner\'s final decision for purposes of judicial review. The wife appealed to\nthe United States District Court for the District of Massachusetts, seeking a declaratory judgment to\nreverse the commissioner\'s ruling.\nThe United States District Court judge certified the above question to this court because \xe2\x80\x9c[t]he\nparties agree that a determination of these children\'s rights under the law of Massachusetts is\ndispositive of the case and ... no directly applicable Massachusetts precedent exists.\xe2\x80\x9d\nII\nA\nWe have been asked to determine the inheritance rights under Massachusetts law of children\nconceived from the gametes47 of a deceased individual and his or her surviving spouse.48 We have\nnot previously been asked to consider whether our intestacy statute accords inheritance rights to\nposthumously conceived genetic children. Nor has any American court of last resort considered, in a\npublished opinion, the question of posthumously conceived genetic children\'s inheritance rights\n\nThe administrative law judge reasoned that the children were not \xe2\x80\x9cascertainable heirs as defined by the intestacy laws\nof Massachusetts,\xe2\x80\x9d because they were neither born nor in utero at the date of the husband\'s death and \xe2\x80\x9cthe statutes and\ncases contemplated an ascertainable child, one who had been conceived prior to the father\'s death.\xe2\x80\x9d He also found that\nthe children could not inherit as the husband\'s children under Massachusetts intestacy law because the evidence failed to\nestablish that the husband, before his death, either acknowledged the children as his own or intended to contribute to\ntheir support. See G.L. c. 190, \xc2\xa7 7. Further, the administrative law judge held that the SSA was not bound by the\njudgment of paternity because that judgment \xe2\x80\x9cis not only inconsistent with Massachusetts paternity laws but also\nconstitutes a proceeding to which the [SSA] was not a party.\xe2\x80\x9d See Soc. Sec. Rul. 83-37c; Gray v. Richardson, 474 F.2d 1370\n(6th Cir.1973). In her certification order, the United State District Court judge affirmed that, as a matter of Federal law,\nthe administrative law judge \xe2\x80\x9cwas not compelled to give dispositive weight to the Probate Court judgment.\xe2\x80\x9d She did not\nask us to determine whether the paternity judgment is \xe2\x80\x9cinconsistent with Massachusetts paternity laws,\xe2\x80\x9d as the\nadministrative law judge concluded.\n47 We use the term \xe2\x80\x9cgamete\xe2\x80\x9d here to denote \xe2\x80\x9c[a]ny germ cell, whether ovum or spermatozoon.\xe2\x80\x9d Stedman\'s Medical\nDictionary 701 (26th ed.1995).\n48 Although the certified question asks us to consider an unsettled question of law concerning the paternity of children\nconceived from a deceased male\'s gametes, we see no principled reason that our conclusions should not apply equally to\nchildren posthumously conceived from a deceased female\'s gametes.\n46\n\n243\n\n\x0cunder other States\' intestacy laws.49\nThis case presents a narrow set of circumstances, yet the issues it raises are far reaching. Because the\nlaw regarding the rights of posthumously conceived children is unsettled, the certified question is\nunderstandably broad. Moreover, the parties have articulated extreme positions. The wife\'s principal\nargument is that, by virtue of their genetic connection with the decedent,\nposthumously conceived children must always be permitted to enjoy the inheritance rights of the\ndeceased parent\'s children under our law of intestate succession. The government\'s principal\nargument is that, because posthumously conceived children are not \xe2\x80\x9cin being\xe2\x80\x9d as of the date of the\nparent\'s death, they are always barred from enjoying such inheritance rights.\nNeither party\'s position is tenable. In this developing and relatively uncharted area of human\nrelations, bright-line rules are not favored unless the applicable statute requires them. The\nMassachusetts intestacy statute does not. Neither the statute\'s \xe2\x80\x9cposthumous children\xe2\x80\x9d provision, see\nG.L. c. 190, \xc2\xa7 8, nor any other provision of our intestacy law limits the class of posthumous children\nto those in utero at the time of the decedent\'s death. Cf. La. Civ. Code Ann. art. 939 (West 2000)\n(\xe2\x80\x9cA successor must exist at the death of the decedent\xe2\x80\x9d).50 On the other hand, with the act of\nprocreation now separated from coitus, posthumous reproduction can occur under a variety of\nconditions that may conflict with the purposes of the intestacy law and implicate other firmly\nestablished State and individual interests. We look to our intestacy law to resolve these tensions.\nB\nWe begin our analysis with an overview of Massachusetts intestacy law. In our Commonwealth, the\ndevolution of real and personal property in intestacy is neither a natural nor a constitutional right. It\nis a privilege conferred by statute. Merchants Nat\'l Bank v. Merchants Nat\'l Bank, 318 Mass. 563, 573,\n62 N.E.2d 831 (1945). Our intestacy statute \xe2\x80\x9cexcludes all rules of law which might otherwise be\noperative. It impliedly repealed all preexisting statutes and supersedes the common law.\xe2\x80\x9d Cassidy v.\nTruscott, 287 Mass. 515, 521, 192 N.E. 164 (1934).\nWe are aware of only two cases that have addressed, in varying degrees, the question before us. In Hecht v. Superior\nCourt, 16 Cal.App.4th 836, 20 Cal.Rptr.2d 275 (1993), the California Court of Appeal considered, among other things,\nwhether a decedent\'s sperm was \xe2\x80\x9cproperty\xe2\x80\x9d that could be bequeathed to his girlfriend. Id. at 847, 20 Cal.Rptr.2d 275. In\nanswering in the affirmative, the court noted, in dicta and without elaboration, that, under the provisions of California\'s\nProbate Code, \xe2\x80\x9cit is unlikely that the estate would be subject to claims with respect to any such children\xe2\x80\x9d resulting from\ninsemination of the girl friend with the decedent\'s sperm. Id. at 859, 20 Cal.Rptr.2d 275. In Matter of Estate of Kolacy, 332\nN.J.Super. 593, 753 A.2d 1257 (2000), the plaintiff brought a declaratory judgment action to have her children, who were\nconceived after the death of her husband, declared the intestate heirs of her deceased husband in order to pursue the\nchildren\'s claims for survivor benefits with the Social Security Administration. A New Jersey Superior Court judge held\nthat, in circumstances where the decedent left no estate and an adjudication of parentage did not unfairly intrude on the\nrights of others or cause \xe2\x80\x9cserious problems\xe2\x80\x9d with the orderly administration of estates, the children would be entitled to\ninherit under the State\'s intestacy law. Id. at 602, 753 A.2d 1257.\n50 The cases relied on by the administrative law judge do no more than affirm the general common-law rule that heirs are\nfixed as of the date of death, see National Shawmut Bank v. Joy, 315 Mass. 457, 467, 53 N.E.2d 113 (1944); Gorey v.\nGuarente, 303 Mass. 569, 576-577, 22 N.E.2d 99 (1939), and that children born after death within the probable period of\ngestation may inherit as issue of the deceased parent in exception to the general rule. See Bowen v. Hoxie, 137 Mass. 527,\n528-529, 1884 WL 10644 (1884). See also Waverley Trust Co., petitioner, 268 Mass. 181, 183, 167 N.E. 274 (1929). Our\nintestacy statute supersedes any Massachusetts common law in this area. See note 16, and accompanying text, infra.\n49\n\n244\n\n\x0cSection 1 of the intestacy statute directs that, if a decedent \xe2\x80\x9cleaves issue,\xe2\x80\x9d such \xe2\x80\x9cissue\xe2\x80\x9d will inherit a\nfixed portion of his real and personal property, subject to debts and expenses, the rights of the\nsurviving spouse, and other statutory payments not relevant here. See G.L. c. 190, \xc2\xa7151 To answer the\ncertified question, then, we must first determine whether the twins are the \xe2\x80\x9cissue\xe2\x80\x9d of the husband.\nThe intestacy statute does not define \xe2\x80\x9cissue.\xe2\x80\x9d However, in the context of intestacy the term \xe2\x80\x9cissue\xe2\x80\x9d\nmeans all lineal (genetic) descendants, and now includes both marital and nonmarital 52 descendants.\nSee generally S.M. Dunphy, Probate Law and Practice \xc2\xa7 8.5, at 123 (2d ed. 1997 & Supp.2001), and\ncases cited.53 See also G.L. c. 4, \xc2\xa7 7, Sixteenth (\xe2\x80\x9cIssue, as applied to the descent of estates, shall\ninclude all the lawful lineal descendants of the ancestor\xe2\x80\x9d); Powers v. Wilkinson, 399 Mass. 650, 662,\n506 N.E.2d 842 (1987) The term \xe2\x80\x9c \xe2\x80\x98[d]escendants\' ... has long been held to mean persons \xe2\x80\x98who by\nconsanguinity trace their lineage to the designated ancestor.\xe2\x80\x99 \xe2\x80\x9d Lockwood v. Adamson, 409 Mass. 325,\n329, 566 N.E.2d 96 (1991), quoting Evarts v. Davis, 348 Mass. 487, 489, 204 N.E.2d 454 (1965).\nThe Massachusetts intestacy statute thus does not contain an express, affirmative requirement that\nposthumous children must \xe2\x80\x9cbe in existence\xe2\x80\x9d as of the date of the decedent\'s death. The Legislature\ncould surely have enacted such a provision had it desired to do so. Cf. La. Civ.Code Ann. art. 939\n(effective July 1, 1999) (West 2000) (\xe2\x80\x9cA successor must exist at the death of the decedent\xe2\x80\x9d). See also\nN.D. Cent.Code Ann. 14-18-04 (Michie 1997) (\xe2\x80\x9cA person who dies before a conception using that\nperson\'s sperm or egg is not a parent of any resulting child born of the conception\xe2\x80\x9d). We must\ntherefore determine whether, under our intestacy law, there is any reason that children conceived\nafter the decedent\'s death who are the decedent\'s direct genetic descendants-that is, children who\n\xe2\x80\x9cby consanguinity trace their lineage to the designated ancestor\xe2\x80\x9d-may not enjoy the same succession\nrights as children conceived before the decedent\'s death who are the decedent\'s direct genetic\ndescendants. Lockwood v. Adamson, supra.\nTo answer that question we consider whether and to what extent such children may take as intestate\nheirs of the deceased genetic parent consistent with the purposes of the intestacy law, and not by\nany assumptions of the common law. See Cassidy v. Truscott, supra at 520-521, 192 N.E. 164. In the\nabsence of express legislative directives, we construe the Legislature\'s purposes from statutory\nindicia and judicial decisions in a manner that advances the purposes of the intestacy law. Houghton v.\nDickinson, 196 Mass. 389, 391, 82 N.E. 481 (1907).\nGeneral Laws c. 190, \xc2\xa7 2, provides that the intestate personal property of the deceased shall be divided \xe2\x80\x9camong the\npersons and in the proportions ... prescribed for the descent of real property,\xe2\x80\x9d subject to the limitations discussed\nabove. General Laws c. 190, \xc2\xa7 3, governs the distribution of real property to the decedent\'s \xe2\x80\x9cchildren\xe2\x80\x9d and their \xe2\x80\x9cissue,\xe2\x80\x9d\nwho are preferred takers over other nonspousal heirs.\n52 When not quoting directly from other sources employing different terminology, we shall use the term \xe2\x80\x9cnonmarital\nchild\xe2\x80\x9d throughout this opinion to describe a child born to parents who are not legally married to each other. The term\n\xe2\x80\x9cnonmarital child\xe2\x80\x9d is less fraught with negative implications than is the traditional language of \xe2\x80\x9cillegitimacy\xe2\x80\x9d or\n\xe2\x80\x9cbastardy.\xe2\x80\x9d As such, the term \xe2\x80\x9cnonmarital child\xe2\x80\x9d is more closely aligned with the Legislature\'s commitment to eradicate\ndistinctions between the rights of children based on the circumstances of birth.\n53 Although by statute and case law adopted children are also included in the term \xe2\x80\x9cissue,\xe2\x80\x9d our discussion is limited to\nconsanguineous descendants. In certain express and very limited circumstances, the Legislature has cut off inheritance\nrights of biological children, but only for the purpose of grafting the children into a new family with parents from whom\nthey can inherit in intestacy or by will. See G.L. c. 46, \xc2\xa7 4B (child born as result of artificial insemination of wife with\nhusband\'s consent is legitimate child of marriage); G.L. c. 210, \xc2\xa7 7 (inheritance rights of adopted child).\n51\n\n245\n\n\x0cThe question whether posthumously conceived genetic children may enjoy inheritance rights under\nthe intestacy statute implicates three powerful State interests: the best interests of children, the\nState\'s interest in the orderly administration of estates, and the reproductive rights of the genetic\nparent. Our task is to balance and harmonize these interests to effect the Legislature\'s over-all\npurposes.\n1. First and foremost we consider the overriding legislative concern to promote the best interests of\nchildren. \xe2\x80\x9cThe protection of minor children, most especially those who may be stigmatized by their\n\xe2\x80\x98illegitimate\xe2\x80\x99 status ... has been a hallmark of legislative action and of the jurisprudence of this\ncourt.\xe2\x80\x9d L.W.K. v. E.R.C., 432 Mass. 438, 447-448, 735 N.E.2d 359 (2000). Repeatedly, forcefully,\nand unequivocally, the Legislature has expressed its will that all children be \xe2\x80\x9centitled to the same\nrights and protections of the law\xe2\x80\x9d regardless of the accidents of their birth. G.L. c. 209C, \xc2\xa7 1. See\nG.L. c. 119, \xc2\xa7 1 (\xe2\x80\x9cIt is hereby declared to be the policy of the commonwealth to direct its efforts,\nfirst, to the strengthening and encouragement of family life for the protection and care of children\n...\xe2\x80\x9d). Among the many rights and protections vouchsafed to all children are rights to financial\nsupport from their parents and their parents\' estates. See G.L. c. 119A, \xc2\xa7 1 (\xe2\x80\x9cIt is the public policy of\nthis commonwealth that dependent children shall be maintained, as completely as possible, from the\nresources of their parents, thereby relieving or avoiding, at least in part, the burden borne by the\ncitizens of the commonwealth\xe2\x80\x9d); G.L. c. 191, \xc2\xa7 20 (establishing inheritance rights for pretermitted\nchildren); G.L. c. 196, \xc2\xa7\xc2\xa7 1-3 (permitting allowances from estate to widows and minor children);\nG.L. c. 209C, \xc2\xa7 14 (permitting paternity claims to be commenced prior to birth). See also G.L. c. 190,\n\xc2\xa7\xc2\xa7 1-3, 5, 7-8 (intestacy rights).54\nWe also consider that some of the assistive reproductive technologies that make posthumous\nreproduction possible have been widely known and practiced for several decades. See generally Banks,\nTraditional Concepts and Nontraditional Conceptions: Social Security Survivor\'s Benefits for Posthumously Conceived\nChildren, 32 Loy. L.A. L.Rev. 251, 267-273 (1999). In that time, the Legislature has not acted to\nnarrow the broad statutory class of posthumous children to restrict posthumously conceived\nchildren from taking in intestacy. Moreover, the Legislature has in great measure affirmatively\nsupported the assistive reproductive technologies that are the only means by which these children\ncan come into being. See G.L. c. 46, \xc2\xa7 4B (artificial insemination of married woman). See also G.L. c.\n175, \xc2\xa7 47H; G.L. c. 176A, \xc2\xa7 8K; G.L. c. 176B, \xc2\xa7 4J; G.L. c. 176G, \xc2\xa7 4 (insurance coverage for\ninfertility treatments). We do not impute to the Legislature the inherently irrational conclusion that\nassistive reproductive technologies are to be encouraged while a class of children who are the fruit\nof that technology are to have fewer rights and protections than other children.\nIn short, we cannot, absent express legislative directive, accept the commissioner\'s position that the\nhistorical context of G.L. c. 190, \xc2\xa7 8, dictates as a matter of law that all posthumously conceived\nchildren are automatically barred from taking under their deceased donor parent\'s intestate estate.\nWe have consistently construed statutes to effectuate the Legislature\'s overriding purpose to\npromote the welfare of all children, notwithstanding restrictive common-law rules to the contrary.\nThe provisions of the intestacy statute regarding paternity have been regularly amended to broaden the class of\nnonmarital children eligible to succeed from their father\'s intestate estate. See Houghton v. Dickinson, 196 Mass. 389, 390391, 82 N.E. 481 (1907). See also St.1943, c. 72, \xc2\xa7 1 (establishing succession rights for nonmarital child whose father\'s\npaternity has been successfully adjudicated); St.1980, c. 396 (establishing succession rights for nonmarital child whose\nfather has acknowledged paternity).\n54\n\n246\n\n\x0cSee, e.g., L.W.K. v. E.R.C., supra at 447, 735 N.E.2d 359; Adoption of Tammy, 416 Mass. 205, 210, 619\nN.E.2d 315 (1993); Powers v. Wilkinson, 399 Mass. 650, 661-662, 506 N.E.2d 842 (1987); Powers v.\nSteele, 394 Mass. 306, 310, 475 N.E.2d 395 (1985); Hall v. Hancock, 32 Mass. 255, 15 Pick. 255\n(1834).55 Posthumously conceived children may not come into the world the way the majority of\nchildren do. But they are children nonetheless. We may assume that the Legislature intended that\nsuch children be \xe2\x80\x9centitled,\xe2\x80\x9d in so far as possible, \xe2\x80\x9cto the same rights and protections of the law\xe2\x80\x9d as\nchildren conceived before death. See G.L. c. 209C, \xc2\xa7 1.\n2. However, in the context of our intestacy laws, the best interests of the posthumously conceived\nchild, while of great importance, are not in themselves conclusive. They must be balanced against\nother important State interests, not the least of which is the protection of children who are alive or\nconceived before the intestate parent\'s death. In an era in which serial marriages, serial families, and\nblended families are not uncommon, according succession rights under our intestacy laws to\nposthumously conceived children may, in a given case, have the potential to pit child against child\nand family against family. Any inheritance rights of posthumously conceived children will reduce the\nintestate share available to children born prior to the decedent\'s death. See G.L. c. 190, \xc2\xa7 3(1). Such\nconsiderations, among others, lead us to examine a second important legislative purpose: to provide\ncertainty to heirs and creditors by effecting the orderly, prompt, and accurate administration of\nintestate estates. See generally S.M. Dunphy, Probate Law and Practice \xc2\xa7 8.1, at 115 (2d ed.1997).\nThe intestacy statute furthers the Legislature\'s administrative goals in two principal ways: (1) by\nrequiring certainty of filiation between the decedent and his issue, and (2) by establishing limitations\nperiods for the commencement of claims against the intestate estate. In answering the certified\nquestion, we must consider each of these requirements of the intestacy statute in turn.\nFirst, as we have discussed, our intestacy law mandates that, absent the father\'s acknowledgment of\npaternity or marriage to the mother, a nonmarital child must obtain a judicial determination of\npaternity as a prerequisite to succeeding to a portion of the father\'s intestate estate. Both the United\nStates Supreme Court and this court have long recognized that the State\'s strong interest in\npreventing fraudulent claims justifies certain disparate classifications among nonmarital children\nbased on the relative difficulty of accurately determining a child\'s direct lineal ancestor. See Lowell v.\nKowalski, 380 Mass. 663, 668-669, 405 N.E.2d 135 (1980). See also Trimble v. Gordon, 430 U.S. 762,\n771, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).\nBecause death ends a marriage, see Callow v. Thomas, 322 Mass. 550, 555, 78 N.E.2d 637 (1948);\nRawson v. Rawson, 156 Mass. 578, 580, 31 N.E. 653 (1892), posthumously conceived children are\nalways nonmarital children. And because the parentage of such children can be neither\nacknowledged nor adjudicated prior to the decedent\'s death, it follows that, under the intestacy\nstatute, posthumously conceived children must obtain a judgment of paternity as a necessary\nprerequisite to enjoying inheritance rights in the estate of the deceased genetic father.56 Although\nThe common-law rule that heirs are ascertained at the time of the decedent\'s death has been superseded and, in any\nevent, has never been applied with rigid inflexibility, even outside of the context of posthumously born children. See, e.g.,\nWaverley Trust Co., petitioner, 268 Mass. 181, 183-184, 167 N.E. 274 (1929) (\xe2\x80\x9cIt is not an inflexible rule that under no\ncircumstances can the heirs of a person be ascertained as of a date later than that of death\xe2\x80\x9d).\n56 It is equally clear that the intestacy statute requires an adjudication of parentage regardless of whether the deceased\ngenetic parent was male or female. The presumption of consanguinity between the nonmarital child and his or her\nmother expressed in G.L. c. 190, \xc2\xa7 5, is plainly inapplicable to the circumstances of posthumous reproduction. Cf. G.L.\n55\n\n247\n\n\x0cmodern reproductive technologies will increase the possibility of disputed paternity claims,57\nsophisticated modern testing techniques now make the determination of genetic paternity accurate\nand reliable. See generally Note, Implications of DNA Technology on Posthumous Paternity Determination:\nDeciding the Facts When Daddy Can\'t Give His Opinion, 35 B.C. L.Rev. 747 (1994). See also G.L. c. 209C,\n\xc2\xa7 17.\nWe now turn to the second way in which the Legislature has met its administrative goals: the\nestablishment of a limitations period for bringing paternity claims against the intestate estate. Our\ndiscussion of this important goal, however, is necessarily circumscribed by the procedural posture of\nthis case and by the terms of the certified question. The commissioner concedes that the timeliness\nof the wife\'s Massachusetts paternity actions is not relevant to the Federal law question whether the\nwife\'s children will be considered the husband\'s \xe2\x80\x9cnatural children\xe2\x80\x9d for Social Security benefits\npurposes, and that therefore whatever we say on this issue has no bearing on the wife\'s Federal\naction. We also note that the certified question does not specifically address the limitations matter\nand that, in their briefs to this court, the parties referred to the limitations question only peripherally.\nSee also note 6, supra.\nNevertheless, the limitations question is inextricably tied to consideration of the intestacy statute\'s\nadministrative goals. In the case of posthumously conceived children, the application of the one-year\nlimitations period of G.L. c. 190, \xc2\xa7 7 is not clear; it may pose significant burdens on the surviving\nparent, and consequently on the child.58 59 It requires, in effect, that the survivor make a decision to\nbear children while in the freshness of grieving. It also requires that attempts at conception succeed\nquickly. Cf. Commentary, Modern Reproductive Technologies: Legal Issues Concerning Cryopreservation and\nPosthumous Conception, 17 J. Legal Med. 547, 549 (1996) (\xe2\x80\x9cIt takes an average of seven insemination\nattempts over 4.4 menstrual cycles to establish pregnancy\xe2\x80\x9d). Because the resolution of the time\nconstraints question is not required here, it must await the appropriate case, should one arise.\n3. Finally, the question certified to us implicates a third important State interest: to honor the\nreproductive choices of individuals. We need not address the wife\'s argument that her reproductive\nrights would be infringed by denying succession rights to her children under our intestacy law.\nNothing in the record even remotely suggests that she was prevented by the State from choosing to\nconceive children using her deceased husband\'s semen. The husband\'s reproductive rights are a\nc. 209C, \xc2\xa7 21 (applying provisions of paternity statute \xe2\x80\x9c[i]nsofar as practicable\xe2\x80\x9d to disputes regarding maternity). See also\nG.L. c. 190, \xc2\xa7 7 (referring to c. 209C).\n57 It is now possible for a child to be born by means of reproductive technologies in circumstances in which several\npeople could claim or be claimed to be the child\'s legal parents: an egg donor, a sperm donor, a gestational carrier, and\none or two people who are not biologically related to the child but who have arranged for the contributions of the\nothers and who intend to raise the child. See Shapo, Matters of Life and Death: Inheritance Consequences of Reproductive\nTechnologies, 25 Hofstra L.Rev. 1091, 1102 (1997)\n58 The paternity statute permits paternity actions to be commenced prior to a child\'s birth, see G.L. c. 209C, \xc2\xa7 14. Thus, a\nProbate Court judge, in the exercise of general equity jurisdiction under G.L. c. 215, \xc2\xa7 6, may consider a claim to\nestablish paternity of a posthumously conceived child where such action is commenced during a pregnancy resulting\nfrom the joining of the gametes of the surviving spouse and the deceased spouse within the time period prescribed by\nG.L. c. 190, \xc2\xa7 7.\n59 We reject the wife\'s argument that a posthumously conceived child may be considered a \xe2\x80\x9ccreditor\xe2\x80\x9d whose claim has\nnot yet \xe2\x80\x9caccrued\xe2\x80\x9d within the meaning of G.L. c. 197, \xc2\xa7 13, until after the child\'s birth. Section 13 permits a creditor\n\xe2\x80\x9cwhose right of action shall not accrue within one year after the date of death of the deceased\xe2\x80\x9d to present his or her\nclaims \xe2\x80\x9cat any time before the estate is fully administered.\xe2\x80\x9d See Flannery v. Flannery, 429 Mass. 55, 705 N.E.2d 1140\n(1999). Those who take by intestate succession are not \xe2\x80\x9ccreditors.\xe2\x80\x9d Rather, they are the heirs who receive what remains\nof the estate after all creditors have been paid.\n\n248\n\n\x0cmore complicated matter.\nIn A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051 (2000), we considered certain issues surrounding\nthe disposition of frozen preembryos. A woman sought to enforce written agreements between\nherself and her former husband. The wife argued that these agreements permitted her to implant\nfrozen preembryos created with the couple\'s gametes during the marriage, even in the event of their\ndivorce. We declined to enforce the agreements. Persuasive to us, among other factors, was the lack\nof credible evidence of the husband\'s \xe2\x80\x9ctrue intention\xe2\x80\x9d regarding the disposition of the frozen\npreembryos, and the changed family circumstance resulting from the couple\'s divorce. See id. at 158159, 725 N.E.2d 1051. Recognizing that our laws strongly affirm the value of bodily and\nreproductive integrity, we held that \xe2\x80\x9cforced procreation is not an area amenable to judicial\nenforcement.\xe2\x80\x9d Id. at 160, 725 N.E.2d 1051. In short, A.Z. v. B.Z., supra, recognized that individuals\nhave a protected right to control the use of their gametes.\nConsonant with the principles identified in A.Z. v. B.Z., supra, a decedent\'s silence, or his equivocal\nindications of a desire to parent posthumously, \xe2\x80\x9cought not to be construed as consent.\xe2\x80\x9d See Schiff,\nArising from the Dead: Challenges of Posthumous Procreation, 75 N.C. L.Rev. 901, 951 (1997).60 The\nprospective donor parent must clearly and unequivocally consent not only to posthumous\nreproduction but also to the support of any resulting child. Cf. Paternity of Cheryl, 434 Mass. 23, 37,\n746 N.E.2d 488 (2001) (\xe2\x80\x9cThe law places on men the burden to consider carefully the permanent\nconsequences that flow from an acknowledgment of paternity\xe2\x80\x9d). After the donor-parent\'s death, the\nburden rests with the surviving parent, or the posthumously conceived child\'s other legal\nrepresentative, to prove the deceased genetic parent\'s affirmative consent to both requirements for\nposthumous parentage: posthumous reproduction and the support of any resulting child.\nThis two-fold consent requirement arises from the nature of alternative reproduction itself. It will\nnot always be the case that a person elects to have his or her gametes medically preserved to create\n\xe2\x80\x9cissue\xe2\x80\x9d posthumously. A man, for example, may preserve his semen for myriad reasons, including,\namong others: to reproduce after recovery from medical treatment, to reproduce after an event that\nleaves him sterile, or to reproduce when his spouse has a genetic disorder or otherwise cannot have\nor safely bear children. That a man has medically preserved his gametes for use by his spouse thus\nmay indicate only that he wished to reproduce after some contingency while he was alive, and not\nthat he consented to the different circumstance of creating a child after his death. Uncertainty as to\nconsent may be compounded by the fact that medically preserved semen can remain viable for up to\nten years after it was first extracted, long after the original decision to preserve the semen has passed\nand when such changed circumstances as divorce, remarriage, and a second family may have\nintervened. See Banks, Traditional Concepts and Nontraditional Conceptions: Social Security Survivor\'s Benefits\nfor Posthumously Conceived Children, 32 Loy. L.A. L.Rev. 251, 270 (1999).61\nNo question has arisen in this case concerning the right of the surviving wife to use the decedent husband\'s gametes.\nCf. Hecht v. Superior Court, 16 Cal.App.4th 836, 20 Cal.Rptr.2d 275 (1993).\n61 Of course, a man will not always medically deposit his semen in a sperm bank for the use by a spouse or other\ndesignated person. He may also deposit his semen in a sperm bank, usually in return for compensation, for use by an\nanonymous third party or third parties. See Chester, Freezing the Heir Apparent: A Dialogue on Postmortem Conception, Parental\nResponsibility, and Inheritance, 33 Hous. L.Rev. 967, 977 & n.41 (1996). The sperm donor generally signs a contract\nrelinquishing all parental rights and responsibilities, \xe2\x80\x9cand the majority of states seem to protect anonymous donors at\nleast from unwanted responsibility for their offspring.\xe2\x80\x9d Id. See G.L. c. 46, \xc2\xa7 4B. See also R.R. v. M.H., 426 Mass. 501, 509,\n689 N.E.2d 790 (1998) (\xe2\x80\x9cSection 4B does not comment on the rights and obligations, if any, of the biological father,\nalthough inferentially he has none\xe2\x80\x9d). Such protections may reflect widespread consensus that shielding donors from the\n60\n\n249\n\n\x0cSuch circumstances demonstrate the inadequacy of a rule that would make the mere genetic tie of\nthe decedent to any posthumously conceived child, or the decedent\'s mere election to preserve\ngametes, sufficient to bind his intestate estate for the benefit of any posthumously conceived child.\nWithout evidence that the deceased intestate parent affirmatively consented (1) to the posthumous\nreproduction and (2) to support any resulting child, a court cannot be assured that the intestacy\nstatute\'s goal of fraud prevention is satisfied.\nC\nThe certified question does not require us to specify what proof would be sufficient to establish a\nsuccessful claim under our intestacy law on behalf of a posthumously conceived child. Nor have we\nbeen asked to determine whether the wife has met her burden of proof.\nIt is undisputed in this case that the husband is the genetic father of the wife\'s children. However,\nfor the reasons stated above, that fact, in itself, cannot be sufficient to establish that the husband is\nthe children\'s legal father for purposes of the devolution and distribution of his intestate property.\nIn the United States District Court, the wife may come forward with other evidence as to her\nhusband\'s consent to posthumously conceive children. She may come forward with evidence of his\nconsent to support such children. We do not speculate as to the sufficiency of evidence she may\nsubmit at trial.\nIII\nFor the second time this term, we have been confronted with novel questions involving the rights of\nchildren born from assistive reproductive technologies. See Culliton v. Beth Israel Deaconess Med. Ctr.,\n435 Mass. 285, 756 N.E.2d 1133 (2001). As these technologies advance, the number of children they\nproduce will continue to multiply. So, too, will the complex moral, legal, social, and ethical questions\nthat surround their birth. The questions present in this case cry out for lengthy, careful examination\noutside the adversary process, which can only address the specific circumstances of each controversy\nthat presents itself. They demand a comprehensive response reflecting the considered will of the\npeople.\nIn the absence of statutory directives, we have answered the certified question by identifying and\nharmonizing the important State interests implicated therein in a manner that advances the\nLegislature\'s over-all purposes. In so doing, we conclude that limited circumstances may exist,\nconsistent with the mandates of our Legislature, in which posthumously conceived children may\nenjoy the inheritance rights of \xe2\x80\x9cissue\xe2\x80\x9d under our intestacy law. These limited circumstances exist\nwhere, as a threshold matter, the surviving parent or the child\'s other legal representative\ndemonstrates a genetic relationship between the child and the decedent. The survivor or\nrepresentative must then establish both that the decedent affirmatively consented to posthumous\nconception and to the support of any resulting child. Even where such circumstances exist, time\nlimitations may preclude commencing a claim for succession rights on behalf of a\nresponsibilities of legal parentage is necessary to encourage the socially beneficial practice of sperm donation. It may also\nreflect an intention to avoid the myriad complications of probate, title to property, and fragmentation of the donor\'s\nestate that might result from contrary rules. See generally Shapo, Matters of Life and Death: Inheritance Consequences of\nReproductive Technologies, 25 Hofstra L.Rev. 1091, 1218 (1997).\n\n250\n\n\x0cposthumously conceived child. In any action brought to establish such inheritance rights, notice\nmust be given to all interested parties.\nThe Reporter of Decisions is to furnish attested copies of this opinion to the clerk of this court. The\nclerk in turn will transmit one copy, under the seal of this court, to the clerk of the United States\nDistrict Court for the District of Massachusetts, as the answer to the question certified, and will also\ntransmit a copy to each party.\nNotes and Questions\n1. Woodward was a Social Security case. However, the Court based its decision on an analysis of the\nstate\xe2\x80\x99s intestacy system. Was that the right analysis? Should the same standard be applied to cases\ninvolving posthumously conceived children seeking to receive Social Security benefits and to cases\ninvolving posthumously conceived children seeking to inherit under the intestacy system?\n2. What is the rule established by the Woodward case? Design a statute based upon the criterion set\nout by the court. Would such a statute survive a constitutional challenge?\n3. The court in Woodward required that the woman present \xe2\x80\x9cevidence that the deceased intestate\nparent affirmatively consented to (1) the posthumous reproduction and (2) to support any resulting\nchild.\xe2\x80\x9d What proof would be sufficient to establish a successful claim applying that standard? What\nare the pros and cons of that two-fold consent requirement?\n4. The Woodward court did not address the time constraints question. Should a time limit be placed\non when the posthumously conceived child must be produced or born? What factors should be\nconsidered when establishing that time period? What are the pros and cons of establishing a specific\ntime period?\n5. What are the pros and cons of treating posthumously conceived children as just another class of\nposthumously born children?\n6. What are the state interests that are implicated by giving posthumously conceived children the\nright to inherit from their fathers?\n7. The Restatement (Third) of Property: Wills and Other Donative Transfers \xc2\xa7 2.5, cmt. 1 (1999)\nprovides \xe2\x80\x9c[T]o inherit from the decedent, a child produced from genetic material of the decedent by\nassisted reproductive technology must be born within a reasonable time after the decedent\xe2\x80\x99s death in\ncircumstances indicating that the decedent would have approved of the child\xe2\x80\x99s right to inherit. A\nclear case would be that of a child produced by artificial insemination of the decedent\xe2\x80\x99s widow with\nhis frozen sperm.\xe2\x80\x9d What are the pros and cons of this rule? Would the outcome of Woodward have\nbeen different if the Restatement rule had applied?\n8. In a California case, the court upheld an agreement signed by a man requesting that, instead of\nbeing released to his wife, his frozen sperm be discarded in the event of his death. The man\xe2\x80\x99s widow\nclaimed that she had a right to use his sperm to attempt to conceive a child. The court stated that\nthe man\xe2\x80\x99s intent should control because it was his sperm. Estate of Kievernagel vs. Patsy Kievernagel, __\nCal. Rptr. 3d __, 2008 WL 4183504 (Cal. App. 3 Dist.) (Sept. 11, 2008). Should the reproductive\n251\n\n\x0crights of the live person be given preference over the reproductive rights of the deceased person? In\norder words, is the right to not procreate a fundamental right?\nProbate law is really localized. Thus, the outcome of the case usually turns upon whether or\nnot the court is willing to give the intestacy statute a broad reading. As the next cases illustrate,\nsometimes a court is willing to strictly construe the words of the statute even when the construction\ngoes against the best interests of the child and the wishes of the deceased man. On other occasions,\na court will permit the child to inherit in order to carry out the dead man\xe2\x80\x99s intent.\n\nKhabbaz v. Commissioner of Social Security Administration, 930 A.2d 1180 (N.H. 2007)\nDUGGAN, J.\nPursuant to Supreme Court Rule 34, the United States District Court for the District of New\nHampshire (Barbadoro, J.) certified the following question for our consideration:\nIs a child conceived after her father\'s death via artificial insemination eligible to inherit from\nher father as his surviving issue under New Hampshire intestacy law?\nWe respond in the negative.\nThe district court\'s order provides the following facts. Donna M. Eng and Rumzi Brian Khabbaz\nwere married in September 1989 and, six years later, had a son together. In April 1997, Mr. Khabbaz\nwas diagnosed with a terminal illness. Subsequently, he began to bank his sperm so that his wife\ncould conceive a child through artificial insemination. He also executed a consent form indicating\nthat the sperm could be used by his wife \xe2\x80\x9cto achieve a pregnancy\xe2\x80\x9d and that it was his \xe2\x80\x9cdesire and\nintent to be legally recognized as the father of the child to the fullest extent allowable by law.\xe2\x80\x9d Mr.\nKhabbaz died on May 23, 1998.\nChristine C. Eng Khabbaz was conceived by artificial insemination after Mr. Khabbaz\'s death, using\nhis banked sperm, and was born in the summer of 2000. At some point thereafter, she sought social\nsecurity survivor\'s benefits. Under federal law, her eligibility for the benefits depends upon whether\nshe can inherit from her father under state intestacy law. As the federal district court explained:\n[U]nder the Social Security Act (the \xe2\x80\x9cAct\xe2\x80\x9d), an individual who is the \xe2\x80\x9cchild\xe2\x80\x9d of an insured wage\nearner and is dependent on the insured at the time of his death is entitled to child\'s insurance\nbenefits. 42 U.S.C. \xc2\xa7402(d)(1). In determining \xe2\x80\x9cchild\xe2\x80\x9d status, the Act instructs the Commissioner [to]\n... apply such law as would be applied in determining the devolution of intestate personal property\nby the courts of the State in which such insured individual was domiciled at the time of his death.\nApplicants who according to such law would have the same status relative to taking intestate\npersonal property as a child of parent shall be deemed such. Thus, if Christine may inherit from Mr.\nKhabbaz as his surviving issue under New Hampshire intestacy law, she is considered to be the\n\xe2\x80\x9cchild\xe2\x80\x9d of Mr. Khabbaz under the Act and is therefore entitled to child\'s insurance benefits.\n(Quotation, citation, brackets and ellipses omitted.)\nThe Commissioner of the Social Security Administration (commissioner) denied Christine\'s\napplication for survivor\'s benefits based upon an interpretation of RSA 561:1, our state\'s intestacy\n252\n\n\x0cdistribution statute. After a hearing, an administrative law judge upheld the commissioner\'s decision,\nand the Appeals Council of the Social Security Administration subsequently affirmed. Christine then\nappealed the commissioner\'s decision to the federal district court. Recognizing that this case raises\nan unresolved question of New Hampshire law, the district court certified the question to us.\nResponding to the certified question requires us to interpret our state intestacy statutes. In matters\nof statutory interpretation, we are the final arbiters of the legislature\'s intent as expressed in the\nwords of the statute considered as a whole. Chase v. Ameriquest Mortgage Co., 155 N.H. 19, 22, 921\nA.2d 369, 372 (2007). When examining the language of the statute, we ascribe the plain and ordinary\nmeaning to the words used. Id. at 22, 921 A.2d at 372. We interpret legislative intent from the statute\nas written and will not consider what the legislature might have said or add language that the\nlegislature did not see fit to include. Id. at 22, 921 A.2d at 373.\nRSA chapter 561 (2007) sets forth a comprehensive scheme for estate distribution. RSA 561:1, in\nparticular, governs the devolution of the real and personal estate upon intestacy. RSA 561:1, I,\nprescribes the circumstances under which a surviving spouse may take from the estate. RSA 561:1,\nII, in turn, describes the procedure for distributing that portion of the intestate estate not passing to\nthe surviving spouse.\nEng argues that her daughter is a \xe2\x80\x9csurviving issue\xe2\x80\x9d within the meaning of the statute. However, the\nplain meaning of the word \xe2\x80\x9csurviving\xe2\x80\x9d is \xe2\x80\x9cremaining alive or in existence.\xe2\x80\x9d Webster\'s Third New\nInternational Dictionary 2303 (unabridged ed.2002). In order to remain alive or in existence after her\nfather passed away, Eng would necessarily have to have been \xe2\x80\x9calive\xe2\x80\x9d or \xe2\x80\x9cin existence\xe2\x80\x9d at the time of\nhis death. She was not. She was conceived more than a year after his death. It follows, therefore, that\nneither she nor any posthumously conceived child is a \xe2\x80\x9csurviving issue\xe2\x80\x9d within the plain meaning of\nthe statute.\nAlternatively, Eng contends that even if her daughter is not a \xe2\x80\x9csurviving issue,\xe2\x80\x9d RSA 561:1, II(a)\ndoes not include the word \xe2\x80\x9csurviving,\xe2\x80\x9d and therefore it applies to any \xe2\x80\x9cissue\xe2\x80\x9d-including\nposthumously conceived children. She argues that her position is buttressed by RSA 21:20 (2000),\nwhich defines \xe2\x80\x9cissue\xe2\x80\x9d as \xe2\x80\x9cinclud[ing] all the lawful lineal descendants of the ancestor.\xe2\x80\x9d\nIn isolation, the provisions cited by Eng might support her position. However, we do not construe\nstatutes in isolation; instead, we attempt to do so in harmony with the overall statutory scheme.\nChase, 155 N.H. at 22, 921 A.2d at 373. Parts (b) through (e) of RSA 561:1, II all expressly reference\n\xe2\x80\x9csurviving issue\xe2\x80\x9d in describing the order of distribution. Thus, when viewed as a whole, RSA 561:1,\nII evinces a clear legislative intent to create an overall statutory scheme under which those who\n\xe2\x80\x9csurvive\xe2\x80\x9d a decedent-that is, those who remain alive at the time of the decedent\'s death-may inherit\nin a timely and orderly fashion contingent upon who is alive. To hold that part (a) does not require\nthe decedent\'s issue to \xe2\x80\x9csurvive\xe2\x80\x9d would undermine the orderly distribution process clearly\ncontemplated by the legislature. See id. at 22, 921 A.2s at 373 (when interpreting two or more\nstatutes that deal with a similar subject matter, we construe them so that they do not contradict each\nother, and so that they will lead to reasonable results and effectuate the legislative purpose of the\nstatutes). Accordingly, when part (a) is interpreted in light of parts (b) through (e) and viewed within\nits larger statutory context, the absence of the word \xe2\x80\x9csurviving\xe2\x80\x9d in part (a) makes no difference in\ndetermining how the decedent\'s property is distributed.\n\n253\n\n\x0cRSA 21:20 does not compel a contrary result. RSA chapter 21 (2000 & Supp.2006) sets forth general\nrules of statutory construction, including the definition of \xe2\x80\x9cissue\xe2\x80\x9d found at RSA 21:20. RSA 21:1\nprovides, however, that the definitions in RSA chapter 21 shall be observed in construing statutes\n\xe2\x80\x9cunless such construction would be inconsistent with the manifest intent of the legislature or\nrepugnant to the context of the same statute.\xe2\x80\x9d To conclude that RSA 21:20 broadens RSA 561:1, ,\nII(a) to include all issue-whether surviving or not-would undermine the finality and orderly\ndistribution that the legislature clearly contemplated. After all, on a practical level, children may be\nconceived posthumously several years after an individual\'s death, and waiting for the potential birth\nof a posthumously conceived child could tie up estate distributions indefinitely. Moreover, in terms\nof how the statutory scheme operates, requiring estates to wait for the potential birth of a\nposthumously conceived child would render meaningless the contingency scheme created by RSA\n561:1, II(b)-II(e) because application of those parts is dependent upon a determination of the\nexistence of \xe2\x80\x9csurviving issue,\xe2\x80\x9d a determination that cannot be made if using a male\'s banked sperm\nany time after his death could create \xe2\x80\x9cissue\xe2\x80\x9d entitled to inherit under the statute. Accordingly,\nbecause application of the definition of \xe2\x80\x9cissue\xe2\x80\x9d in RSA 21:20 would be inconsistent with the\nmanifest intent of the legislature and repugnant to the context of RSA 561:1, II, we do not apply it.\nRSA 21:1.\nWe also reject Eng\'s further argument that another statute, RSA 561:4, renders her daughter eligible\nto inherit under New Hampshire intestacy law. RSA 561:4 describes the inheritance rights of\nchildren born to unwed parents.\nEng contends that Mr. Khabbaz\'s death ended the marriage, leaving Christine born to unwed\nparents and eligible to inherit from her father as long as she satisfied any of the conditions listed in\nRSA 561:4, II(a)-(e). We disagree. Viewed as a whole, RSA 561:4 evinces a clear legislative intent to\nestablish a scheme of inheritance rights, upon intestacy, for illegitimate children. See N.H.S. Jour. 899\n(1983) (\xe2\x80\x9cThis [bill] would provide for an illegitimate child whose mother and father dies intestate, to\nbe able to inherit from both the mother and the father.\xe2\x80\x9d). If a man who was both a husband and a\nfather died during the last few months of his wife\'s pregnancy, the parents would no longer be\nmarried; however, he and his wife would not be deemed \xe2\x80\x9cunwed\xe2\x80\x9d and no one would question the\nlegitimacy of the child. The same must be true in the instant case. Although Christine\'s father died,\nher parents are not \xe2\x80\x9cunwed\xe2\x80\x9d for purposes of the statute, and she does not argue that she is\nillegitimate. To the contrary, she refers to herself as her father\'s \xe2\x80\x9clegitimate child.\xe2\x80\x9d See RSA 168-B:7\n(2002) (child created through artificial insemination is deemed legitimate). Accordingly, we reject\nEng\'s contentions based upon RSA 561:4.\nEng also argues that RSA chapter 168-B (2002), a framework governing artificial insemination, in\nvitro fertilization, preembryo transfer and surrogacy, renders her daughter eligible to inherit from\nMr. Khabbaz if he died intestate.\nRSA 168-B:9, entitled \xe2\x80\x9cIntestate and Testate Succession,\xe2\x80\x9d provides:\nI. Subject to the provisions of paragraph II, a child shall be considered a child only of his or her\nparent or parents, and the parent or parents shall be considered the parent or parents of the child, as\ndetermined under RSA 168-B:2-5, for purposes of:\n(a) Intestate succession.\n254\n\n\x0c(b) Taking against the will of any person.\n(c) Taking under the will of any person, unless such will otherwise provides.\n(d) Being entitled to any support or similar allowance during the administration of a parent\'s\nestate.\nII. For purposes of paragraph I, a child born of a surrogate is:\n(a) The child of the intended parents from the moment of the child\'s birth unless the\nsurrogate gives notice of her intent to keep the child pursuant to RSA 168-B:25, IV.\n(b) The child of the surrogate and her husband, if any, or if none, the person presumed to be\nthe father under RSA 168-B:3, I(d), from the moment of the child\'s birth, if the surrogate\ngives notice of her intent to keep the child pursuant to RSA 168-B:25, IV.\nThese provisions establish certain rights for children born by alternative means. However, nothing\nin the plain language of RSA 168-B:9 either affirmatively or implicitly modifies the requirement of\nRSA 561:1 that the issue who inherit upon intestacy must be \xe2\x80\x9csurviving.\xe2\x80\x9d Moreover, to hold that\nRSA 168-B:9 creates a distribution scheme different from that created by RSA 561:1 would be\ninconsistent with our practice of construing statutes that deal with a similar subject matter so that\nthey do not contradict each other, and so that they will lead to reasonable results and effectuate the\nlegislative purpose. Chase, 155 N.H. at 22, 921 A.2d at 373.\nEng also argues that the Uniform Simultaneous Death Act (USDA), RSA chapter 563 (2007),\nsupports her position because \xe2\x80\x9c[t]here is no requirement under the USDA that the surviving\nindividual be in existence, in gestation or in utero at the time of the death of the individual upon\nwhose death the survivorship is based, only that they survive the decedent more than one hundred\nand twenty hours.\xe2\x80\x9d In light of our discussion of \xe2\x80\x9csurviving issue\xe2\x80\x9d above, we reject this argument.\nFinally, based essentially upon public policy considerations, Eng argues that we should adopt the\nreasoning of the Massachusetts Supreme Judicial Court in Woodward v. Commissioner of Social Security,\n435 Mass. 536, 760 N.E2d 257 (2002). Woodward, however, is distinguishable because it is based\nupon Massachusetts statutes that differ from our own. Furthermore, to the extent Eng argues that\npublic policy requires us to read RSA 561:1, II as allowing children who are posthumously conceived\nwithin a reasonable time after a parent\'s death to inherit, we agree with the special concurrence that\n\xe2\x80\x9cthe intestacy statute ... essentially leaves an entire class of posthumous[ly conceived] children\nunprotected.\xe2\x80\x9d However, the present statute requires that result. To reach the opposite result and\nadopt the reasoning of Woodward would require us to add words to a statute, Chase, 155 N.H. at 22,\n921 A.2d at 373. We reserve such matters of public policy for the legislature. State v. Kidder, 150\nN.H. 600, 604, 843 A.2d 312 (2004). Other state legislatures have grappled with these issues, and we\nleave it to ours, if it chooses, to do the same. (citations omitted).\nAccordingly, for the foregoing reasons, we answer the certified question in the negative.\nRemanded.\n\n255\n\n\x0cIn Re Estate of Kolacy, 753 A.2d 1257 (N.J. 2000)\nSTANTON, .J.S.C.\nOn March 31, 2000, I delivered an oral opinion declaring that Amanda Kolacy and Elyse Kolacy,\nthree year old girls who are residents of New Jersey, are the heirs of their father William Kolacy,\neven though they were born eighteen months after his death. This opinion supersedes my earlier\noral opinion.\nThe plaintiff in this action is Mariantonia Kolacy. She has brought this action to obtain a declaration\nthat her two children, Amanda and Elyse, have the status of intestate heirs of her late husband,\nWilliam J. Kolacy. Because this action involves a claim that one or more statutes of the State of New\nJersey are unconstitutional, the Attorney General of New Jersey was notified of the action and has\nappeared through a Deputy Attorney General to defend the constitutionality of the state statutes\ninvolved.\nOn February 7, 1994, William J. Kolacy and Mariantonia Kolacy were a young married couple living\nin Rockaway, New Jersey. On that date, William Kolacy was diagnosed as having leukemia and he\nwas advised to start chemotherapy as quickly as possible. He feared that he would be rendered\ninfertile by the disease or by the treatment for the disease, so he decided to place his sperm in the\nSperm and Embryo Bank of NJ. On the morning of February 8, 1994, William Kolacy and\nMariantonia Kolacy harvested his sperm and Mariantonia Kolacy delivered it to the sperm bank.\nLater that day, the chemotherapy began. After the chemotherapy had been in progress for one\nmonth, a second harvesting of sperm occurred and was placed in the sperm bank.\nUnfortunately, William Kolacy\xe2\x80\x99s leukemia led to his death at the age of 26 on April 15, 1995. He\ndied domiciled in New Jersey. On April 3, 1996, almost a year after the death of William Kolacy,\nplaintiff Mariantonia Kolacy authorized the release of his sperm from the Sperm and Embryo Bank\nof NJ to the Center for Reproductive Medicine and Infertility at Cornell University Medical College\nin New York City. An IVF fertilization procedure uniting the sperm of William Kolacy and eggs\ntaken from Mariantonia Kolacy was performed at the Center. The procedure was successful and the\nembryos which resulted were transferred into the womb of Mariantonia Kolacy. Twin girls, Amanda\nand Elyse, were born to Mariantonia Kolacy on November 3, 1996. The births occurred slightly\nmore than eighteen months after the death of William Kolacy.\nI find that the certifications submitted by Mariantonia Kolacy and Dr. Isaac Kligman of the Center\nfor Reproductive Medicine and Infertility are fully credible and that they firmly establish the facts set\nforth above. Accordingly, it is clear that Amanda and Elyse Kolacy are genetically and biologically\nthe children of William Kolacy.\nPlaintiff is currently pursuing her claims and those of the children through appellate process within\nthe Social Security Administration, and, if necessary, will eventually litigate them in the federal\ncourts. In bringing this action in the Superior Court, the plaintiff is attempting to obtain a state court\nruling which will be helpful to her in pursuing her federal claims before a federal administrative\nagency and before the federal courts.\nThe State of New Jersey, speaking through the Deputy Attorney General appearing in this action,\n256\n\n\x0chas urged me not to adjudicate this case. The State argues that the plaintiff\xe2\x80\x99s claim really is not\njusticiable in this court. The argument is that plaintiff is basically seeking to assert federal rights\nbefore federal tribunals and that she should be restricted to presenting her case before federal\ntribunals. Those tribunals, of course, are capable of looking at New Jersey law and of making\nperfectly intelligent judgments with respect to it. The State, in effect, argues that it would be an\ninappropriate intrusion on federal adjudicatory processes for me to become involved in determining\nthe status of Amanda and Elyse Kolacy.\nThe ultimate question of whether Amanda and Elyse Kolacy are entitled to Social Security benefits\nis something which is exclusively a matter for federal tribunals. Even if I were to determine that the\nchildren are the heirs of William Kolacy under New Jersey law, it does not necessarily follow that\nthey would be entitled to benefits under the Social Security Act, because there are important federal\npolicy considerations which are applicable and which do not involve merely the status of the\nchildren as heirs under New Jersey law. However, the interpretation of New Jersey statutes and the\ndetermination of what New Jersey law is are primarily the responsibility of New Jersey courts.\nFederal courts routinely look to state courts for authoritative rulings with respect to state law. See\ngenerally, Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978); Cotton States Mutual Ins.\nCo. v. Anderson, 749 F.2d 663 (11th Cir. 1984). In the case before me, a proper determination of what\nNew Jersey law is will not necessarily be dispositive of the rights of plaintiff and the children under\nfederal law, and it would not be appropriate for a state court to intrude into federal adjudicatory\nprocesses. On the other hand, it would clearly be unfortunate for those federal adjudicatory\nprocesses to reach a result based in part upon an incorrect determination by federal tribunals of\nNew Jersey law. Accordingly, even if this action is viewed primarily as an adjunct to claims asserted\nin federal proceedings, it is appropriate for me to interpret New Jersey statutory law as it applies to\nAmanda and Elyse Kolacy.\nI also note that, entirely aside from claims being asserted with respect to Social Security benefits,\nAmanda and Elyse are entitled to have their status as heirs of their father determined for a variety of\nstate law purposes. The State argues that, because William Kolacy left no assets and thus had no\nestate at the time of his death, there is really no point in determining who are his heirs under New\nJersey law. William Kolacy died without a will, but he did not leave any assets which would pass\nunder the intestate laws of New Jersey. His assets were modest because of his young age and\nbecause of the difficult economic stresses that were placed upon him and his wife by his illness.\nSuch assets as he had passed to his wife because of the joint ownership of property. Therefore, a\ndetermination that Amanda and Elyse were his heirs would not presently entitle them to any\nproperty under intestate law.\nHowever, a present determination of their status as heirs is appropriate because of the effect it has\non their general legal and social status and because of the impact which it may have upon property\nrights as they evolve over a period of time. For one thing, it is conceivable, though not very likely,\nthat William Kolacy might have an estate because of assets passing to him at a future date. More\nrealistically, a determination that the children are the heirs of William Kolacy could be significant in\nterms of their rights to take from his parents or from his collateral relatives in the event that one or\nmore of those persons were to die intestate. Their status as his heirs could also be significant in\ndetermining their rights under the wills of their father\xe2\x80\x99s relatives. Thus, for a variety of estate law\npurposes, there is a present real utility to a declaration of the inheritance status of Amanda and\nElyse. I will therefore entertain this action and I will make a ruling with respect to whether Amanda\nand Elyse legally qualify as the heirs of William Kolacy. See New Jersey Citizen Action v. Riviera Motel\n257\n\n\x0cCorp., 296 N.J.Super. 402, 686 A.2d 1265 (App.Div.1997); New Jersey Home Builders Association v.\nDivision of Civil Rights, 81 N.J.Super. 243, 195 A.2d 318 (Ch.Div. 1963).\nThere are no New Jersey decisions dealing with the central issue presented in this case\xe2\x80\x94whether\nAmanda and Elyse Kolacy, conceived after the death of their biological father and born more than\neighteen months after his death, qualify as his heirs under state intestate law. I have not been able to\nfind any American appellate court decisions dealing with that central issue.\nCounsel have discussed at some length N.J.S.A. 3B:5-8, which is the New Jersey statute dealing with\nafter born heirs. That statute provides as follows: \xe2\x80\x9cRelatives of the decedent conceived before his\ndeath but born thereafter inherit as if they had been born in the lifetime of the decedent.\xe2\x80\x9d Counsel\nfor plaintiff argues that this statute, as applied to children such as Amanda and Elyse Kolacy, is\nunconstitutional because \xe2\x80\x9cthe effect of the statute as to posthumously conceived children is to both\ninvidiously and irrationally discriminate against them.\xe2\x80\x9d My view is that the constitutional argument\nagainst this statute is fundamentally misplaced and that it really is not necessary to reach the issue of\nwhether this statute is constitutional.\nA brief discussion of elementary estate law concepts is appropriate at this point. When a person dies,\nwhether he dies leaving a will or whether he dies intestate, there is a real life need and a legal need to\ndetermine which persons are entitled to take his estate, and when that determination is made the\ngeneral policy is to deliver to those persons rather promptly the property to which they are entitled.\nThus, the identity of people who will take property from a decedent has traditionally been\ndetermined as of the date of the decedent\xe2\x80\x99s death.\nHowever, there have long been exceptions to the rule that the identity of takers from a decedent\xe2\x80\x99s\nestate is determined as of the date of death. Those exceptions are based on human experience going\nback to time immemorial. We have always been aware that men sometimes cause a woman to\nbecome pregnant and then die before the pregnancy comes to term and a child is born. It has always\nbeen routine human experience that men sometimes have children after they die. To deal fairly with\nthis reality, decisional law and statutory law have long recognized that it is appropriate to hold the\nprocess of identifying takers from a decedent\xe2\x80\x99s estate open long enough to allow after born children\nto receive property from and through their father. See Byerly v. Tolbert, 250 N.C. 27, 108 S.E.2d 29\n(1959); Baugh v. Baugh, 25 Kan.App.2d 871, 973 P.2d 202 (1999).\nAside from the fact that a man sometimes dies before his child is born, there is the fact that when\nany person dies, a woman related to that decedent may be pregnant with a child who upon birth will\nqualify as a member of a class of persons entitled to take property from the decedent. The law has\ntraditionally held the class of persons entitled to take from the decedent open long enough to allow\na child who was being carried in his or her mother\xe2\x80\x99s womb at the time of the decedent\xe2\x80\x99s death to\nreceive a share of the property. See Estate of Wolyniec v. Moe, 94 N.J.Super. 43, 226 A.2d 743 (Ch.Div.\n1967); Chemical Bank & Trust Company v. Godfrey, 29 N.J.Super. 226, 102 A.2d 108 (Ch.Div.1953).\nN.J.S.A. 3B:5-8 is part of that traditional recognition of exceptions to the rule that takers from a\ndecedent\xe2\x80\x99s estate should be determined as of the date of the decedent\xe2\x80\x99s death. N.J.S.A. 3B:5-8 was\nenacted in 1981 as part of a fairly broad reorganization of statutory law dealing with decedents\xe2\x80\x99\nestates. In 1981, reproductive technology had advanced to the point that it is conceivable that the\nlegislature might have been aware of the kind of problem posed by our present case. However, the\nrelevant legislative history indicates that the current statute was simply a carryover of earlier statutes\n258\n\n\x0cgoing back to at least 1877. The simple fact is that when the legislature adopted N.J.S.A. 3B:5-8 it\nwas not giving any thought whatever to the kind of problem we have in this case. To the extent that\nthere was a conscious legislative intent about reproductive processes involved, the intent was\nundoubtedly to deal fairly and sensibly with children resulting from traditional sexual activity in\nwhich a man directly deposits sperm into the body of a woman. With one exception mentioned\nhereafter, the New Jersey Legislature has never addressed the problems posed in estate law by\ncurrent human reproductive technology.\nThe ability to remove sperm and eggs from human beings and to preserve their viability by storing\nthem for long periods of time at low temperatures makes it possible for children to come into\nexistence as the genetic and biological offspring of a father or of a mother who has long since been\ndead. My impression is that it is now possible to preserve the viability of human genetic material for\nas long as ten years. It is likely that the time will be extended in the future. The evolving human\nproductive technology opens up some wonderful possibilities, but it also creates difficult issues and\npotential problems in many areas. It would undoubtedly be useful for the Legislature to deal\nconsciously and in a well informed way with at least some of the issues presented by reproductive\ntechnology.\nThe State has urged that courts should not entertain actions such as the present one, but should wait\nuntil the Legislature has dealt with the kinds of issues presented by this case. As indicated above, I\nthink it would be helpful for the Legislature to deal with these kinds of issues. In the meanwhile, life\ngoes on, and people come into the courts seeking redress for present problems. We judges cannot\nsimply put those problems on hold in the hope that some day (which may never come) the\nLegislature will deal with the problem in question. Simple justice requires us to do the best we can\nwith the statutory law which is presently available. As I look at N.J.S.A. 3B:5-8 and other statutory\nprovisions dealing with intestate succession, I discern a basic legislative intent to enable children to\ntake property from their parents and through their parents from parental relatives. Although the\nLegislature has not dealt with the kind of issue presented by children such as Amanda and Elyse, it\nhas manifested a general intent that the children of a decedent should be amply provided for with\nrespect to property passing from him or through him as the result of a death. It is my view that the\ngeneral intent should prevail over a restrictive, literal reading of statutes which did not consciously\npurport to deal with the kind of problem before us.\nGiven that general legislative intent, it seems to me that once we establish, as we have in this case,\nthat a child is indeed the offspring of a decedent, we should routinely grant that child the legal status\nof being an heir of the decedent, unless doing so would unfairly intrude on the rights of other\npersons or would cause serious problems in terms of the orderly administration of estates.\nI note that after born children who come into existence because of modern reproductive techniques\npose special challenges to society and to our legal system. Historically, after born children were\nconceived and in their mother\xe2\x80\x99s womb at the time of a decedent\xe2\x80\x99s death and they could be counted\non to appear no later than approximately nine months after that death. Now they can appear after\nthe death of either a mother or a father and they can appear a number of years after that death.\nEstates cannot be held open for years simply to allow for the possibility that after born children may\ncome into existence. People alive at the time of a decedent\xe2\x80\x99s death who are entitled to receive\nproperty from the decedent\xe2\x80\x99s estate are entitled to receive it reasonably promptly. It would\nundoubtedly be both fair and constitutional for a Legislature to impose time limits and other\nsituationally described limits on the ability of after born children to take from or through a parent.\n259\n\n\x0cIn the absence of legislative provision in that regard, it would undoubtedly be fair and constitutional\nfor courts to impose limits on the ability of after born children to take in particular cases.\nIn our present case, there are no estate administration problems involved and there are no\ncompeting interests of other persons who were alive at the time of William Kolacy\xe2\x80\x99s death which\nwould be unfairly frustrated by recognizing Amanda and Elyse as his heirs. Even in situations where\ncompeting interests such as other children born during the lifetime of the decedent are in existence\nat the time of his death, it might be possible to accommodate those interests with the interests of\nafter born children. For example, by statutory provision or decisional rule, payments made in the\ncourse of routine estate administration before the advent of after born children could be treated as\nvested and left undisturbed, while distributions made following the birth of after born children could\nbe made to both categories of children.\nThere has been some discussion in this case of the possible impact of the New Jersey Parentage Act,\nN.J.S.A. 9:17-38 to \xe2\x80\x9359. That act is very important in dealing with problems posed by fathers\nseeking to avoid their responsibility for the support of children, and it also deals with a number of\nother parentage issues. But most of its provisions are not even remotely relevant to the kind of\nissues posed by our present case.\nOne provision of the Parentage Act which is facially somewhat relevant to our case is N.J.S.A. 9:17\xe2\x80\x93\n43a(1) which reads: \xe2\x80\x9cA man is presumed to be the biological father of a child if: He and the child\xe2\x80\x99s\nbiological mother are or have been married to each other and the child is born during the marriage,\nor within 300 days after the marriage is terminated by death, annulment or divorce.\xe2\x80\x9d This provision\nmight arguably be interpreted as creating the reverse presumption that a child born more than 300\ndays after the death of a man shall be presumed not to be the biological child of the deceased man. I\nthink that treating the cited provision as creating such a reverse presumption of non-parentage\nwould be somewhat strained because it is counterproductive to the purposes of the act, but even if\nsuch a reverse presumption is read into the act, it is subject to being rebutted by clear and\nconvincing factual evidence. In our present case, there is clear and convincing evidence that Amanda\nand Elyse are the biological children of William Kolacy.\nThis legislative treatment of certain issues arising out of reproductive technology is interesting and\nsensible. But it does not deal expressly with posthumous conception, and, more importantly, it does\nnot deal with sperm contributed by the husband of the woman giving birth to a child. It is not\nrelevant to the facts of our present case.\nThe ability to cause children to come into existence long after the death of a parent is a recently\nacquired ability for human society. There are probably wise and wonderful ways in which that ability\ncan be used. There are also undoubtedly some special problems that the exercise of that ability\nmight pose. There are, I think, ethical problems, social policy problems and legal problems which\nare presented when a child is brought into existence under circumstances where a traditionally\nnormal parenting situation is not available. One would hope that a prospective parent thinking about\ncausing a child to come into existence after the death of a genetic and biological parent would think\nvery carefully about the potential consequences of doing that. The law should certainly be cautious\nabout encouraging parents to move precipitously in this area.\nI accept as true Mariantonia Kolacy\xe2\x80\x99s statement that her husband unequivocally expressed his desire\nthat she use his stored sperm after his death to bear his children. She did, in fact, use his sperm to\n260\n\n\x0cbear his children. Some may question the wisdom of such a course of action, but one can certainly\nunderstand why a loving and caring couple in the Kolacys\xe2\x80\x99 position might choose it. Be all that as it\nmay, once a child has come into existence, she is a full-fledged human being and is entitled to all of\nthe love, respect, dignity and legal protection which that status requires. It seems to me that a\nfundamental policy of the law should be to enhance and enlarge the rights of each human being to\nthe maximum extent possible, consistent with the duty not to intrude unfairly upon the interests of\nother persons. Given that viewpoint, and given the facts of this case, including particularly the fact\nthat William Kolacy by his intentional conduct created the possibility of having long-delayed after\nborn children, I believe it is entirely fitting to recognize that Amanda and Elyse Kolacy are the legal\nheirs of William Kolacy under the intestate laws of New Jersey.\nQuestions\n1. Since death ends the marriage, a posthumously conceived child is technically a non-martial child.\nAs mentioned in the previous chapter, every jurisdiction has a statute that addresses the inheritance\nrights of non-marital children. Should those statutes be applied to determine the inheritance rights\nof posthumously conceived children? Why? Why not? Do you agree with the Khabbaz court\xe2\x80\x99s\nreasoning on the issue?\n2. What are the pros and cons of amending the Social Security Act to make posthumously conceived\nchildren eligible for benefits?\n3. If the reasoning of the Woodward case was applied, what would be the outcome of the case?\n4. In the Khabbaz case, the Court stated that \xe2\x80\x9cIn order to remain alive or in existence after her father\npassed away, Eng would necessarily have to have been \xe2\x80\x98alive\xe2\x80\x99 or \xe2\x80\x98in existence\xe2\x80\x99 at the time of his\ndeath.\xe2\x80\x9d Is there a way to define survivor that would permit Eng to satisfy the definition? Is a being\nin existence if the component parts leading to its creation already exist? Would Eng have a stronger\nargument for existence if she was a pre-embryo at the time her father died?\n5. Khabbaz clearly wanted to be the parent to his posthumously conceived children. Are his\nreproductive rights violated by the court not fulfilling his desire to be legally recognized as the\nparent of any children produced using his stored sperm?\nAs previously mentioned, most cases addressing posthumous reproduction involve children\nconceived using artificial insemination. Moreover, all of the statutes regulating the inheritance rights\nof posthumously conceived children are limited to children created utilizing artificial insemination.\nThe next case deals with the rights of a child conceived through the use of in vitro fertilization.\n\nFinley v. Astrue, 270 S.W.3d 849 (Ark. 2008)\nDANIELSON, J.\nThis case involves a question of law certified to this court by the United States District Court for the\nEastern District of Arkansas in accordance with Ark. Sup.Ct. R. 68 and accepted by this court on\nJune 28, 2007. See Finley v. Astrue, 370 Ark. 429, ----S.W.3d----(2007) (per curiam). The question\ncertified is the following:\n261\n\n\x0cDoes a child, who was created as an embryo through in vitro fertilization during his parents\'\nmarriage, but implanted into his mother\'s womb after the death of his father, inherit from the father\nunder Arkansas intestacy law as a surviving child?\nWe conclude that the answer to this question is no.\nAccording to the District Court\'s order, the certified question arises from an appeal by Amy Finley,\nfrom the final decision of the Commissioner of the Social Security Administration, Michael Astrue\n(the Commissioner), which denied her claim for \xe2\x80\x9cchild\'s insurance benefits\xe2\x80\x9d under 42 U.S.C. 42\nU.S.C. \xc2\xa7 402(d). U.S.C.62\nThe District Court\'s order reflects the following facts. On October 6, 1990, Ms. Finley and Wade W.\nFinley, Jr., were married. During the course of the marriage, the Finleys pursued fertility treatments\nat the University of Arkansas for Medical Sciences (UAMS), and, ultimately, participated in UAMS\'s\nIn Vitro Fertilization and Embryo Transfer (IVF/ET) Program.63 In June of 2001, doctors produced\nten embryos using Ms. Finley\'s eggs and Mr. Finley\'s sperm. Two of the embryos were implanted\ninto Ms. Finley\'s uterus and four embryos were frozen for preservation. 64 Ms. Finely later suffered a\nmiscarriage of both of the implanted embryos.\nOn July 19, 2001, Mr. Finely died intestate while domiciled here in Arkansas. A little less than one\nyear later, on June 26, 2002, Ms. Finley had two of the previously frozen embryos thawed and\ntransferred into her uterus, resulting in a single pregnancy. On February 14, 2003, prior to the child\'s\nbirth, the Lonoke County Circuit Court entered an order providing that upon the baby\'s delivery, the\nState Registrar of the Arkansas Department of Health, Division of Vital Records, shall enter and\nstate upon the certificate of birth that Wade W. Finley, Jr., now deceased, is the father of [W.F.];\n[a]nd that, thereafter, all State and Federal Agencies, of the United States of America, shall uphold\nthe findings of this Court\'s conclusion of paternity-in[Plaintiff] the mother and Wade W. Finley, Jr.\nthe father-for any and all lawful purposes; and, that [W.F.] is the legitimate child of [Plaintiff] and\nWade W. Finely, Jr. for any and all lawful purposes.\nThe child was born on March 4, 2003, and on April 11, 2003, Ms. Finley filed a claim for mother\'s\ninsurance benefits and the child\'s claim for child\'s insurance benefits, based on the earnings record\nThe Commissioner\'s order also denied Ms. Finley\'s claim for \xe2\x80\x9cmother\'s insurance benefits\xe2\x80\x9d under 42 U.S.C. \xc2\xa7 402(g).\nIn vitro fertilization is described as follows: After the woman has taken injectable ovulation-inducing medications ...,\nmultiple oocytes are retrieved from the woman\'s ovaries by a minor surgical procedure. The oocytes are placed in a petri\ndish with her male partner\'s sperm (in vitro) and placed in an incubator for fertilization to occur. The embryos are\nallowed to grow for a period of three to five days before they are placed back into the woman\'s uterus.\n7-289 Attorneys\' Textbook of Medicine P.289.65 (3d ed.2007). It differs entirely from artificial insemination: Intrauterine\ninsemination, also known as artificial insemination, refers to the placement of sperm into the uterine cavity. Intrauterine\ninsemination may be performed at the time of ovulation in the woman\'s normal menstrual cycle, or with the use of\nmedications that induce ovulation. In most cases, the female partner takes fertility medications in advance of the\nprocedure. The man must produce sperm at the time the woman is ovulating; the sperm (after undergoing certain\n\xe2\x80\x9cwashing\xe2\x80\x9d procedures) are then inserted into the woman\'s uterine cavity through a long, thin catheter.17-289 Attorney\'s\nTextbook of Medicine P.289.81 (3d ed.2007).The District Court\'s order further observes that in participating in the IVF/ET\nprogram at UAMS, the Finleys executed a consent form. That form is not before us; however, we note that the Worker\'s\nCompensation Commission awarded benefits to the child based, at least in part, on the consent form\'s language. See\nFinley v. Farm Cat, Inc., WCC No. F108515 (Dec. 27, 2006).\n64 The District Court\'s order notes that the remaining four embryos were not preserved.\n62\n63\n\n262\n\n\x0cof Mr. Finley. The claims were denied at the initial and reconsideration levels; however, an\nAdministrative Law Judge (ALJ) issued a decision on June 16, 2006, awarding both mother\'s and\nchild\'s insurance benefits.\nOn December 14, 2006, the Appeals Council reversed the ALJ\'s decision, finding that Ms. Finley\'s\nclaims were without merit. Ms. Finley then filed her complaint with the District Court on October\n13, 2006, appealing the final decision of the Commissioner. The parties filed a joint motion to certify\nthe instant question of law to this court and to stay briefing before the District Court. The District\nCourt granted the motion, certified the instant question to this court, and we accepted certification,\nas already stated.\nIn the briefs before us, Ms. Finley argues that her child was \xe2\x80\x9cconceived\xe2\x80\x9d at the time her egg was\nfertilized by the father\'s sperm. She contends that there is no statutory prohibition in Arkansas\npreventing a natural child who was conceived by in vitro fertilization from inheriting from his father.\nShe avers that the General Assembly was aware of in vitro fertilization procedures in light of the fact\nthat it mandated all accident and health insurance companies include in vitro fertilization as a\ncovered expense in Ark. Code Ann. \xc2\xa7 23-85-137(a) (Repl. 2004) and was aware of assisted\nreproductive technologies by its reference to artificial insemination in Ark. Code Ann. \xc2\xa7 28-9-209(c)\n(Repl.2004). She urges that based upon the medical definitions of \xe2\x80\x9cconception,\xe2\x80\x9d the child born of\nthe Finleys\' union was not posthumously conceived and that as a matter of public policy, all\nchildren\'s rights should be protected, including their rights to property and inheritance.\nThe Commissioner responds that Arkansas intestacy law does not provide inheritance rights from a\nbiological father to a child who was created as an embryo through in vitro fertilization during his\nparents\' marriage, but implanted into his mother\'s womb after the death of the father. He argues\nthat the Finleys\' child was neither born nor conceived during the Finleys\' marriage, which ended\nupon Mr. Finley\'s death. The Commissioner maintains that the logical interpretation of the term\n\xe2\x80\x9cconception\xe2\x80\x9d or \xe2\x80\x9cconceived,\xe2\x80\x9d as used in Arkansas\'s intestacy provisions, is to mean the onset of\npregnancy, or the successful implantation of an embryo in the womb. He asserts that the General\nAssembly has not amended the intestate succession statutes to expand the definition of conception\nto include the creation of embryos during the in vitro fertilization process and that absent a statutory\namendment to encompass an IVF-created embryo, this court should conclude that the General\nAssembly did not intend for such embryos to be considered \xe2\x80\x9cconceived\xe2\x80\x9d within the terms of the\nintestacy statutes. He further points out that the General Assembly, and not the courts, determines\npublic policy. Finally, the Commissioner submits, given the fact that inheritance laws require finality,\nit is unlikely that the legislature defined the term \xe2\x80\x9cconception\xe2\x80\x9d to include a medical procedure that\ncould result in a biological birth many years after the father\'s death. Ms. Finley replies that the\nGeneral Assembly has been well aware of assisted reproduction for a number of years and, had it\nchosen to do so, it could have enacted legislation to prevent such an inheritance.\nA review of the benefits being sought and the orders leading to the certification of the instant\nquestion was set forth in the District Court\'s certification order. It provides that [u]nder the Social\nSecurity Act, a child is entitled to child\'s insurance benefits if he is the child of an individual who\ndies while insured, if the child was dependent upon the insured at the time of the insured\'s death. See\n42 U.S.C. \xc2\xa7 402(d). \xe2\x80\x9cChild\xe2\x80\x9d means \xe2\x80\x9cthe child or legally adopted child of an individual[.]\xe2\x80\x9d42 U.S.C. \xc2\xa7\n402(c). In determining whether a claimant is the \xe2\x80\x9cchild\xe2\x80\x9d of a deceased insured, the Commissioner is\ninstructed to \xe2\x80\x9capply such law as would be applied in determining the devolution of intestate personal\nproperty ... by the courts of the State in which [the insured] was domiciled at the time of his\n263\n\n\x0cdeath[.]\xe2\x80\x9d42 U.S.C. \xc2\xa7 416 (h)(2)(A). Social Security regulations provide further guidance on\ndetermining \xe2\x80\x9cchild\xe2\x80\x9d status, including that a claimant be the insured\'s \xe2\x80\x9cnatural child,\xe2\x80\x9d meaning that\nthe claimant \xe2\x80\x9ccould inherit the insured\'s personal property as his or her natural child under State\ninheritance law[s].\xe2\x80\x9d See 20 C.F.R. \xc2\xa7\xc2\xa7 404.354 and 404.355(a)(1). In deciding whether the claimant\nhas \xe2\x80\x9cinheritance rights as the natural child of the insured[,]\xe2\x80\x9d the Commissioner uses \xe2\x80\x9cthe law on\ninheritance rights that the State courts would use to decide whether you could inherit a child\'s share\nof the insured\'s personal property if the insured were to die without leaving a will.\xe2\x80\x9d See 20 C.F.R. \xc2\xa7\n404.355(b)(1).\nDuring the administrative proceedings in this case, Plaintiff claimed that there were no Arkansas\nstatutes specifically addressing the inheritance rights of a child conceived through in vitro\nfertilization, but that, pursuant to Ark. Code Ann. \xc2\xa7 28-9-209(c), W .F. was \xe2\x80\x9cconceived\xe2\x80\x9d as a\n\xe2\x80\x9czygote\xe2\x80\x9d prior to his father\'s death, while his parents were married. Thus, she argued that W.F. had\ninheritance rights under that statute. The Commissioner acknowledged the lack of a \xe2\x80\x9cclear\ndefinition\xe2\x80\x9d of \xe2\x80\x9cconception\xe2\x80\x9d under Arkansas state law, but looked to \xe2\x80\x9cthe generally accepted\ndefinition of the term in the medical community\xe2\x80\x9d and concluded that \xe2\x80\x9cconception\xe2\x80\x9d occurred when\n\xe2\x80\x9cthe embryo was implanted in [Plaintiff\'s] uterus after the wage earner died.\xe2\x80\x9d The Commissioner\nalso rejected Plaintiff\'s reliance on both Ark. Code Ann. \xc2\xa7 11-9-507, a worker\'s compensation statute\nwhich does not \xe2\x80\x9cgovern inheritance issues,\xe2\x80\x9d and the Lonoke Circuit Court Order, which was \xe2\x80\x9cnot\nconsistent with the law as enunciated by the highest court in the State of Arkansas.\xe2\x80\x9d\nAccording to the Commissioner\'s findings: (1) W.F. was the biological child of Wade W. Finley, Jr.\nwho was not married to Plaintiff at the time that W.F. was conceived or born; and (2) W.F. did not\nhave \xe2\x80\x9cinheritance rights in [Wade W. Finley, Jr.\'s] estate\xe2\x80\x9d and thus did \xe2\x80\x9cnot have status as the child\nof the wage earner pursuant to [42 U.S.C. \xc2\xa7 416(h)(2)(A)].\xe2\x80\x9d Because Plaintiff\'s claim for \xe2\x80\x9cmother\'s\ninsurance benefits\xe2\x80\x9d was contingent on having \xe2\x80\x9can entitled child of the wage earner in her care,\xe2\x80\x9d the\nCommissioner found that this claim also lacked merit. (Internal footnotes and citations to transcript\nomitted.)\nHaving been presented with the instant question, we turn to our statutes on intestate succession.\nTitle 28, Chapter 9 of the Arkansas Code Annotated sets forth Arkansas\'s law on intestate\nsuccession, entitled the \xe2\x80\x9cArkansas Inheritance Code of 1969.\xe2\x80\x9d Arkansas Code Annotated \xc2\xa7 28-9203(a)(Repl. 2004) provides that \xe2\x80\x9c[a]ny part of the estate of a decedent not effectively disposed of by\nhis or her will shall pass to his or her heirs as prescribed in the following sections.\xe2\x80\x9d Ark. Code Ann.\n\xc2\xa7 28-9-203(a) (Repl. 2004).\nThe instant certified question presents a posthumous child.65 In order to inherit as a posthumous\nheir under Arkansas law, the child must not only have been born after the decedent\'s death, but\nmust also have been conceived before the decedent\'s death.\nThe basic rule of statutory construction is to give effect to the intent of the legislature. See McMickle\nv. Griffin, 369 Ark. 318, ---S.W.3d---(2007).Where the language of a statute is plain and unambiguous,\nwe determine legislative intent from the ordinary meaning of the language used. See id. In\nconsidering the meaning of a statute, we construe it just as it reads, giving the words their ordinary\nand usually accepted meaning in common language. See id. We construe the statute so that no word\nWhile our statutory code does not define this term, Black\'s Law Dictionary defines the term \xe2\x80\x9cposthumous child\xe2\x80\x9d as: \xe2\x80\x9cA\nchild born after a parent\'s death.\xe2\x80\x9d Black\xe2\x80\x99s Law Dictionary 255 (8th ed.2004).\n65\n\n264\n\n\x0cis left void, superfluous or insignificant, and we give meaning and effect to every word in the statute,\nif possible. See id. Furthermore, we are very hesitant to interpret a legislative act in a manner contrary\nto its express language, unless it is clear that a drafting error or omission has circumvented legislative\nintent. See Arkansas Beverage Retailers Ass\xe2\x80\x99n, Inc. v. Moore, 369 Ark. 498, ---S.W.3d---(2007).\nIt is clear from the statute that in order to inherit through intestate succession as a posthumous\ndescendant, the child must have been conceived before the decedent\'s death. However, the statutory\nscheme fails to define the term \xe2\x80\x9cconceived.\xe2\x80\x9d While we could define that term, we find there is no\nneed to do so, as we can definitively say that the General Assembly, in enacting Act 303 of 1969, \xc2\xa7\n12, now codified at Ark. Code Ann. \xc2\xa7 28-9-210, did not intend for the statute to permit a child,\ncreated through in vitro fertilization and implanted after the father\'s death, to inherit under intestate\nsuccession. Not only does the instant statute fail to specifically address such a scenario, but it was\nenacted in 1969, which was well before the technology of in vitro fertilization was developed. See\nJanet L. Dolgin, Surrounding Embryos: Biology, Ideology, & Politics, 16 Health Matrix: J.L. & Med. 27\n(2006) (observing that the first birth resulting from in vitro fertilization was in 1978).\nBoth parties discuss Ark. Code Ann. \xc2\xa7 28-9-209 (c)(Repl. 2004), which provides: (c) Any child\nconceived following artificial insemination of a married woman with the consent of her husband\nshall be treated as their child for all purposes of intestate succession. Consent of the husband is\npresumed unless the contrary is shown by clear and convincing evidence. Ark. Code Ann. \xc2\xa7 28-9209(c). That statute is inapposite for two reasons. First and foremost, the statute goes to the\nlegitimacy of a child, and, second, it specifically references artificial insemination, not in vitro\nfertilization are two completely different procedures.\nWhile the parties would have us define the term \xe2\x80\x9cconceive,\xe2\x80\x9d we decline to do so in the instant case.\nOur role is not to create the law, but to interpret the law and to give effect to the legislature\'s intent.\nSee, e.g., Miller v. Tatum, 170 Ark. 152, 279 S.W. 1002 (1926); Williams v. Buchanan, 86 Ark. 259, 110\nS.W. 1024 (1908).In vitro fertilization and other methods of assisted reproduction are new\ntechnologies that have created new legal issues not addressed by already-existing law. See, e.g., GillettNetting v. Barnhart, supra (observing that \xe2\x80\x9c[d]eveloping reproductive technology has outpaced federal\nand state laws, which currently do not address directly the legal issues created by posthumous\nconception\xe2\x80\x9d); Woodward v. Commissioner of Social Security, supra (observing that \xe2\x80\x9cwith the act of\nprocreation now separated from coitus, posthumous reproduction can occur under a variety of\nconditions that may conflict with the purposes of the intestacy law and implicate other firmly\nestablished State and individual interests\xe2\x80\x9d). Were we to define the term \xe2\x80\x9cconceive,\xe2\x80\x9d we would be\nmaking a determination that would implicate many public policy concerns, including, but certainly\nnot limited to, the finality of estates. That is not our role. The determination of public policy lies\nalmost exclusively with the legislature, and we will not interfere with that determination in the\nabsence of palpable errors. See Jordan v. Atlantic Cas. Ins. Co., 344 Ark. 81, 40 S.W.3d 254 (2001).With\nthis is mind, we strongly encourage the General Assembly to revisit the intestacy succession statutes\nto address the issues involved in the instant case and those that have not but will likely evolve.\nFor the foregoing reasons, we answer the certified question in the negative.\n\n265\n\n\x0cQuestions\n1. Given the reasoning in the Finley case, the court seemed unconcerned that the assisted\nreproductive technology used was in vitro fertilization. Should children conceived using frozen\nembryos be treated different from the ones using the dead man\xe2\x80\x99s sperm? The court in the Kievernagel\ncase indicated that the outcome of the case might have been different had it involved embryos\ninstead of sperm.\n2. If the posthumously conceived child is allowed to inherit what steps should be taken to protect\nthe deceased man\xe2\x80\x99s existing heirs?\n6.2.2\n\nThe Right to Inheritance Through Fathers\n\nIn re Martin, 841 N.Y.S.2d 207 (N.Y. Sur. Ct. 2007)\nROTH, J.\nThis uncontested application for advice and direction in connection with seven trust agreements\nexecuted on December 31, 1969, by Martin B. (the Grantor) illustrates one of the new challenges\nthat the law of trusts must address as a result of advances in biotechnology. Specifically, the novel\nquestion posed is whether, for these instruments, the terms \xe2\x80\x9cissue\xe2\x80\x9d and \xe2\x80\x9cdescendants\xe2\x80\x9d include\nchildren conceived by means of in vitro fertilization with the cryopreserved semen of the Grantor\'s\nson who had died several years prior to such conception.\nThe relevant facts are briefly stated. Grantor (who was a life income beneficiary of the trusts) died\non July 9, 2001, survived by his wife Abigail and their son Lindsay (who has two adult children), but\npredeceased by his son James, who died of Hodgkins Lymphoma on January 13, 2001. James,\nhowever, after learning of his illness, deposited a sample of his semen at a laboratory with\ninstructions that it be cryopreserved and that, in the event of his death, it be held subject to the\ndirections of his wife Nancy. Although at his death James had no children, three years later Nancy\nunderwent in vitro fertilization with his cryopreserved semen and gave birth on October 15, 2004, to\na boy (James Mitchell). Almost two years later, on August 14, 2006, after using the same procedure,\nshe gave birth to another boy (Warren). It is undisputed that these infants, although conceived after\nthe death of James, are the products of his semen.\nAlthough the trust instruments addressed in this proceeding are not entirely identical, for present\npurposes the differences among them are in all but one respect immaterial. The only relevant\ndifference is that one is expressly governed by the law of New York while the others are governed\nby the law of the District of Columbia. As a practical matter, however, such difference is not\nmaterial since neither jurisdiction provides any statutory authority or judicial comment on the\nquestion before the court.\nAll seven instruments give the trustees discretion to sprinkle principal to, and among, Grantor\'s\n\xe2\x80\x9cissue\xe2\x80\x9d during Abigail\'s life. The instruments also provide that at Abigail\'s death the principal is to\nbe distributed as she directs under her special testamentary power to appoint to Grantor\'s \xe2\x80\x9cissue\xe2\x80\x9d or\n\xe2\x80\x9cdescendants\xe2\x80\x9d (or to certain other \xe2\x80\x9celigible\xe2\x80\x9d appointees). In the absence of such exercise, the\nprincipal is to be distributed to or for the benefit of \xe2\x80\x9cissue\xe2\x80\x9d surviving at the time of such disposition\n266\n\n\x0c(James\'s issue, in the case of certain trusts, and Grantor\'s issue, in the case of certain other trusts).\nThe trustees have brought this proceeding because under such instruments they are authorized to\nsprinkle principal to decedent\'s \xe2\x80\x9cissue\xe2\x80\x9d and \xe2\x80\x9cdescendants\xe2\x80\x9d and thus need to know whether James\'s\nchildren qualify as members of such classes.\nThe question thus raised is whether the two infant boys are \xe2\x80\x9cdescendants\xe2\x80\x9d and \xe2\x80\x9cissue\xe2\x80\x9d for purposes\nof such provisions although they were conceived several years after the death of James.\nAlthough the particular question presented here arises from recent scientific advances in\nbiotechnology, this is not the first time that the Surrogate\'s Court has been called upon to consider\nan issue involving a child conceived through artificial means.\nOver three decades ago, Surrogate Nathan R. Sobel addressed one of the earliest legal problems\ncreated by the use of artificial insemination as a technique for human reproduction (Matter of\nAnonymous, 74 Misc.2d 99, 345 N.Y.S.2d 430). In that case, the petitioner sought to adopt a child\nthat his wife had conceived, during her prior marriage, through artificial insemination with the sperm\nof a third-party donor (heterologous insemination). The question before Surrogate Sobel was\nwhether the former husband had standing to object to the adoption. In the course of his analysis,\nthe learned Surrogate predicted that artificial insemination would become increasingly common and\nwould inevitably also complicate the legal landscape in areas other than adoption. Indeed, he\nspecifically forecast that, as a result of such technological advances, \xe2\x80\x9c[legal] issues ... will multiply [in\nrelation to matters such as] intestate succession and will construction\xe2\x80\x9d (id., at 100, 345 N.Y.S.2d\n430). Surrogate Sobel noted, however, that there was at that point a dearth of statutory or decisional\nguidance on questions such as the one before him.\nThe following year New York enacted Domestic Relations Law 73, which recognized the status of a\nchild born to a married couple as a result of heterologous artificial insemination provided that both\nspouses consented in writing to the procedure, to be performed by a physician. Such statute\nreflected the evolution of the State\'s public policy toward eliminating the distinction between marital\nand non-marital children in determining family rights. Thus, where a husband executes a written\nconsent (or even in some instances where he has expressed oral consent) to artificial insemination\nthe child is treated as his natural child for all purposes despite the absence of a biological connection\nbetween the two (see e.g. Scheinkman, Practice Commentaries, McKinney\xe2\x80\x99s Con. Laws of N.Y., Book\n14, Domestic Relations Law 73, at 309-10).\nSurrogate Sobel\'s predictions in Anonymous proved to be prophetic. Some thirty years later, the novel\nissues generated by scientific developments in the area of assisted human reproduction are\nperplexing legislators and legal scholars (citations omitted).\nCompounding the problem, as the authors of the foregoing studies have observed, decisions and\nenactments from earlier times-when human reproduction was in all cases a natural and uniform\nprocess-do not fit the needs of this more complex era. These new issues, however, are being\ndiscussed and in some jurisdictions have been the subject of legislation or judicial decisions. But, as\nwill be discussed below, neither New York nor the District of Columbia, the governing jurisdictions,\nhas a statute directly considering the rights of post-conceived children. In this case legislative action\nhas not kept pace with the progress of science. In the absence of binding authority, courts must turn\nto less immediate sources for a reflection of the public\'s evolving attitude toward assisted\n267\n\n\x0creproduction-including statutes in other jurisdictions, model codes, scholarly discussions and\nRestatements of the law.\nWe turn first to the laws of the governing jurisdictions. At present, the right of a posthumous child\nto inherit (EPTL 4-1.1[c] [in intestacy] ) or as an after-born child under a will (EPTL 5-3.2 [under a\nwill] ) is limited to a child conceived during the decedent\'s lifetime. Indeed, a recent amendment to\nsection 5-3.2 (effective July 26, 2006) was specifically intended to make it clear that a post-conceived\nchild is excluded from sharing in the parent\'s estate as an \xe2\x80\x9cafter-born\xe2\x80\x9d (absent some provision in the\nwill to the contrary, EPTL 5-3.2 [b]). Such limitation was intended to ensure certainty in identifying\npersons interested in an estate and finality in its distribution (see Sponsor\'s Mem., Bill Jacket L. 2006,\nch. 249). It, however, is by its terms applicable only to wills and to \xe2\x80\x9cafter-borns\xe2\x80\x9d who are children of\nthe testators themselves and not children of third parties (see Turano, Practice Commentaries,\nMcKinney\'s Cons. Laws of N.Y., Book 17B, EPTL 5-3.2, at 275). Moreover, the concerns related to\nwinding up a decedent\'s estate differ from those related to identifying whether a class disposition to\na grantor\'s issue includes a child conceived after the father\'s death but before the disposition became\neffective.\nWith respect to future interests, both the District of Columbia and New York have statutes which\nostensibly bear upon the status of a post-conceived child. In the D.C. Code, the one statutory\nreference to posthumous children appears in section 704 of title 42 which in relevant part provides\nthat, \xe2\x80\x9c[w]here a future estate shall be limited to heirs, or issue, or children, posthumous children\nshall be entitled to take in the same manner as if living at the death of their parent....\xe2\x80\x9d New York has\na very similar statute, which provides in relevant part that, \xe2\x80\x9c[w]here a future estate is limited to\nchildren, distributees, heirs or issue, posthumous children are entitled to take in the same manner as\nif living at the death of their ancestors\xe2\x80\x9d (EPTL 6-5.7). In addition, EPTL 2-1.3(2) provides that a\nposthumous child may share as a member of a class if such child was conceived before the\ndisposition became effective.\nEach of the above statutes read literally would allow post-conceived children-who are indisputably\n\xe2\x80\x9cposthumous\xe2\x80\x9d-to claim benefits as biological offspring. But such statutes were enacted long before\nanyone anticipated that children could be conceived after the death of the biological parent. In other\nwords, the respective legislatures presumably contemplated that such provisions would apply only to\nchildren en ventre sa mere (see e.g. Turano, Practice Commentaries, McKinney\'s Cons. Laws of N.Y.,\nBook 17B, EPTL 6-5.7, at 176).\nWe turn now to the jurisdictions in which the inheritance rights of a post-conceived child have been\ndirectly addressed by the legislatures, namely, Louisiana, California and Florida and to the seven\nStates that have adopted, in part, the Uniform Parentage Act (2000, as amended in 2002)(UPA,\ndiscussed below), namely, Delaware, North Dakota, Oklahoma, Texas, Utah, Washington and\nWyoming. Although we are concerned here with a male donor, the legislation also covers the use of\na woman\'s eggs (UPA 707).\nIn Louisiana, a post-conceived child may inherit from his or her father if the father consented in\nwriting to his wife\'s use of his semen and the child was born within three years of the father\'s death.\nBut it is noted parenthetically that the statute also allows a person adversely affected to challenge\npaternity within one year of such child\'s birth (LA Civil Code 9:391.1).\n\n268\n\n\x0cIn order for a post-conceived child to inherit in the State of California, the parent must have\nconsented in writing to the posthumous use of genetic material and designated a person to control\nits use. Such designee must be given written notice of the designation and the child must have been\nconceived within two years of decedent\'s death (CA Probate Code 249.5).\nFlorida, by contrast, requires a written agreement by the couple and the treating physician for the\ndisposition of their eggs or semen in the event of divorce or death. A post-conceived child may\ninherit only if the parent explicitly provided for such child under his or her will (FL Stat. Ann.\n742.17)\nUnder the UPA, a man who provides semen, or consents to assisted reproduction by a woman as\nprovided under section 704, with the intent to become a father is the parent of the child who is born\nas a result (UPA \xc2\xa7 703). Under section 704 of the UPA, both the man and the woman must consent\nin writing to the recognition of the man as the father. The UPA has also addressed the situation\nwhere the potential parent dies before the act of assisted reproduction has been performed. In such\nsituation, decedent is the parent of the child if decedent agreed to the use of assisted reproduction\nafter his death (UPA 707).\nOn a related question, the courts of three States have held that a post-conceived child is entitled to\nbenefits under the Social Security Act: Massachusetts (Woodward v. Commissioner of Soc. Sec., 435 Mas.\n536, 760 N.E.2d 257 [2002]). New Jersey (Matter of Kolacy, 332 N.J.Super. 593, 753 A.2d 1257\n(2000)) (which had enacted an earlier version of the UPA), and Arizona (Gillett-Netting v. Barnhart,\n371 F.3d 593). All three courts concluded that post-conceived children qualified for such benefits.\nAs can clearly be seen from all the above, the legislatures and the courts have tried to balance\ncompeting interests. On the one hand, certainty and finality are critical to the public interests in the\norderly administration of estates. On the other hand, the human desire to have children, albeit by\nbiotechnology, deserves respect, as do the rights of the children born as a result of such scientific\nadvances. To achieve such balance, the statutes, for example, require written consent to the use of\ngenetic material after death and establish a cut-off date by which the child must be conceived. It is\nnoted parenthetically that in this regard an affidavit has been submitted here stating that all of\nJames\'s cryopreserved sperm has been destroyed, thereby closing the class of his children.\n[1]Finally, we turn to the instruments presently before the court. Although it cannot be said that in\n1969 the Grantor contemplated that his \xe2\x80\x9cissue\xe2\x80\x9d or \xe2\x80\x9cdescendants\xe2\x80\x9d would include children who were\nconceived after his son\'s death, the absence of specific intent should not necessarily preclude a\ndetermination that such children are members of the class of issue. Indeed, it is noted that the\nRestatement of Property suggests that \xe2\x80\x9c[u]nless the language or circumstances indicate that the\ntransferor had a different intention, a child of assisted reproduction [be] treated for class-gift\npurposes as a child of a person who consented to function as a parent to the child and who\nfunctioned in that capacity or was prevented from doing so by an event such as death or incapacity\xe2\x80\x9d\n(Restatement [Third] of Property [Wills and Other Donative Transfers] 14.8 [Tentative Draft No. 4\n204] ).\nThe rationale of the Restatement, Matter of Anonymous and section 73 of the Domestic Relations Law\nshould be applied here, namely, if an individual considers a child to be his or her own, society\nthrough its laws should do so as well. It is noted that a similar rationale was endorsed by our State\'s\nhighest court with respect to the beneficial interests of adopted children (Matter of Park, 15 N.Y.2d\n269\n\n\x0c413, 260 N.Y.S.2d 169, 207 N.E.2d 859). Accordingly, in the instant case, these post-conceived\ninfants should be treated as part of their father\'s family for all purposes. Simply put, where a\ngoverning instrument is silent, children born of this new biotechnology with the consent of their\nparent are entitled to the same rights \xe2\x80\x9cfor all purposes as those of a natural child\xe2\x80\x9d (id., at 418, 260\nN.Y.S.2d 169, 207 N.E.2d 859).\nAlthough James probably assumed that any children born as a result of the use of his preserved\nsemen would share in his family\'s trusts, his intention is not controlling here. For purposes of\ndetermining the beneficiaries of these trusts, the controlling factor is the Grantor\'s intent as gleaned\nfrom a reading of the trust agreements (citations omitted). Such instruments provide that, upon the\ndeath of the Grantor\'s wife, the trust fund would benefit his sons and their families equally. In view\nof such overall dispositive scheme, a sympathetic reading of these instruments warrants the\nconclusion that the Grantor intended all members of his bloodline to receive their share.\nBased upon all of the foregoing, it is concluded that James Mitchell and Warren are \xe2\x80\x9cissue\xe2\x80\x9d and\n\xe2\x80\x9cdescendants\xe2\x80\x9d for all purposes of these trusts.\nAs can be seen from all of the above, there is a need for comprehensive legislation to resolve the\nissues raised by advances in biotechnology. Accordingly, copies of this decision are being sent to the\nrespective Chairs of the Judiciary Committees of the New York State Senate and Assembly.\nDecree signed.\nNotes and Questions\n1. Do you think that the decision in Martin carried out the intent of the settlor of the trust? Should it\nbe more difficult for posthumously conceived children to inherit through their fathers?\n2. The court ended the decision acknowledging the need for comprehensive legislation to resolve\nissues raised by the use of new biotechnology. There is nothing to indicate that the New York\nlegislature has heeded the call with regards to posthumously conceived children. The states that have\nattempted to address the issue are set forth below.\nStatutes Addressing the Inheritance Rights of Posthumously Conceived Children\nUniform Status of Children of Assisted Conception Act \xc2\xa7 4 (b)\nAn individual who dies before implantation of an embryo, or before a child is conceived other than\nthrough sexual intercourse, using the individual\xe2\x80\x99s egg or sperm, is not a parent of the resulting\nchild.66\nUniform Parentage Act \xc2\xa7 707\nIf an individual who consented in a record to be a parent by assisted reproduction dies before\nplacement of eggs, sperm, or embryos, the deceased individual is not a parent of the resulting child\n66\n\nIn 2000, the language of this act was integrated into the UPA.\n\n270\n\n\x0cunless the deceased individual consented in a record that if assisted reproduction were to occur after\ndeath, the deceased individual would be a parent of the child.67\nQuestions\n1. UPA \xc2\xa7 707 requires the individual to consent to the posthumous use of his or her gametes by\nsubmitting a written record. The statute does not define \xe2\x80\x9crecord\xe2\x80\x9d. What type of writing should be\nnecessary to satisfy the writing requirement? In light of the purpose of the writing requirement, what\ncomponents should the writing contain?\n2. What are the advantages and disadvantages of the UPA\xe2\x80\x99s approach?\n3. If the UPA had been applied in the Woodward case would the outcome of the case have been\ndifferent?\nBaldwin\'s Ohio Revised Code Annotated\n\xc2\xa7 2105.14 Posthumous child to inherit\nDescendants of an intestate begotten before his death, but born thereafter, in all cases will inherit as\nif born in the lifetime of the intestate and surviving him; but in no other case can a person inherit\nunless living at the time of the death of the intestate.68\nWest\'s Louisiana Statutes Annotated\n\xc2\xa7 391.1. Child conceived after death of parent\nA. Notwithstanding the provisions of any law to the contrary, any child conceived after the death of\na decedent, who specifically authorized in writing his surviving spouse to use his gametes, shall be\ndeemed the child of such decedent with all rights, including the capacity to inherit from the\ndecedent, as the child would have had if the child had been in existence at the time of the death of\nthe deceased parent, provided the child was born to the surviving spouse, using the gametes of the\ndecedent, within three years of the death of the decedent.\nWest\'s Annotated California Code\n\xc2\xa7 249.5. Posthumous conception; child of decedent deemed born in decedent\'s lifetime;\nconditions\nFor purposes of determining rights to property to be distributed upon the death of a decedent, a\nchild of the decedent conceived and born after the death of the decedent shall be deemed to have\nbeen born in the lifetime of the decedent, and after the execution of all of the decedent\'s\ntestamentary instruments, if the child or his or her representative proves by clear and convincing\nevidence that all of the following conditions are satisfied:\n\nSome version of the UPA has been adopted by the following states: Delaware, North Dakota, Texas, Utah,\nWashington and Wyoming.\n68 Susan N. Gary, Posthumously Conceived Heirs: Where the Law Stands and What to Do About It Now, 19 Apr. Prob. & Prop.\n32, 34-35 (March/April 2005)(stating \xe2\x80\x9cBut, Ohio enacted this statute in 1953, so it is unlikely that the legislature\nconsidered the issue of children conceived after the decedent\xe2\x80\x99s death.\xe2\x80\x9d).\n67\n\n271\n\n\x0c(a) The decedent, in writing, specifies that his or her genetic material shall be used for the\nposthumous conception of a child of the decedent, subject to the following:\n(1) The specification shall be signed by the decedent and dated.\n(2) The specification may be revoked or amended only by a writing, signed by the decedent and\ndated.\n(3) A person is designated by the decedent to control the use of the genetic material.\n(b) The person designated by the decedent to control the use of the genetic material has given\nwritten notice by certified mail, return receipt requested, that the decedent\'s genetic material was\navailable for the purpose of posthumous conception. The notice shall have been given to a person\nwho has the power to control the distribution of either the decedent\'s property or death benefits\npayable by reason of the decedent\'s death, within four months of the date of issuance of a certificate\nof the decedent\'s death or entry of a judgment determining the fact of the decedent\'s death,\nwhichever event occurs first.\n(c) The child was in utero using the decedent\'s genetic material and was in utero within two years of\nthe date of issuance of a certificate of the decedent\'s death or entry of a judgment determining the\nfact of the decedent\'s death, whichever event occurs first. This subdivision does not apply to a child\nwho shares all of his or her nuclear genes with the person donating the implanted nucleus as a result\nof the application of somatic nuclear transfer technology commonly known as human cloning.\nWest\'s Florida Statutes Annotated\n\xc2\xa7 742.17. Disposition of eggs, sperm, or preembryos; rights of inheritance\nA commissioning couple and the treating physician shall enter into a written agreement that\nprovides for the disposition of the commissioning couple\'s eggs, sperm, and preembryos in the\nevent of a divorce, the death of a spouse, or any other unforeseen circumstance.\n(4) A child conceived from the eggs or sperm of a person or persons who died before the transfer of\ntheir eggs, sperm, or preembryos to a woman\'s body shall not be eligible for a claim against the\ndecedent\'s estate unless the child has been provided for by the decedent\'s will.\nWest\'s Annotated Code of Virginia\n\xc2\xa7 20-158. Parentage of child resulting from assisted conception\nB. Death of spouse.--Any child resulting from the insemination of a wife\'s ovum using her\nhusband\'s sperm, with his consent, is the child of the husband and wife notwithstanding that, during\nthe ten-month period immediately preceding the birth, either party died.\nHowever, any person who dies before in utero implantation of an embryo resulting from the union\nof his sperm or her ovum with another gamete, whether or not the other gamete is that of the\nperson\'s spouse, is not the parent of any resulting child unless (i) implantation occurs before notice\nof the death can reasonably be communicated to the physician performing the procedure or (ii) the\nperson consents to be a parent in writing executed before the implantation.\n272\n\n\x0cQuestions\n1. Which one of the above approaches to the issue of posthumous reproduction does the most to\nprotect the interests of the children, the decedent and the state?\n2. Is the three-year time limitation included in the Louisiana statute reasonable?\n3. The Louisiana statute only applies to married couples. What are the pros and cons of restricting\nposthumous reproduction to married persons? Is this restriction going to disadvantage the children\nconceived in long-term relationships? ill this statute survive a constitutional challenge? Should it be\nvoid because of public policy considerations?\n4. Is the four-month notice requirement included in the California statute necessary? Is it\nreasonable?\n5. The California statute contains an anti-cloning provision. What are the pros and cons of\nprohibiting cloning? How is cloning related to artificial insemination in a legal context?\n6. Under the Florida statute, the posthumously conceived child is only protected if his father\nprovides for the child in his will. Thus, if a man dies intestate, his posthumously conceived child\ndoes not have the right to inherit. In every state and the District of Columbia, if a man dies intestate,\npreference is given to his children. As a result, children who exist at the time of the man\xe2\x80\x99s death\nautomatically get the right to inherit. Consequently, in Florida, posthumously conceived children are\ntreated differently from other classes of children. This seems to go against the legislative and judicial\nefforts to treat all children equally. What are the pros and cons of Florida\xe2\x80\x99s approach? Would the\nstatute survive a constitutional challenge?\n7. Explain the Virginia statute\xe2\x80\x99s approach.\n8. The use of assisted reproductive technology to create children posthumously has become a global\npractice. As a consequence, the French Parliament prohibited posthumous reproduction.69 Western\nAustralia adopted The Human Reproductive Technology Act of 1991 to deal with the issue of\nposthumous reproduction.70 Postmortem sperm retrieval and posthumous reproduction is statutorily\nprohibited in Germany, Sweden, and the Australian states of Victoria and Western Australia.71\nHungarian law also does not permit the use of the gametes of dead persons for posthumous\nreproduction.72 In order for posthumous reproduction to take place in the United Kingdom, the\ngamete donor must give written consent.73 Likewise, legal regulations enacted by the Canadian\ngovernment ban posthumous reproduction without the written informed consent of the sperm\nSee Art. L. 152.2 of the Code de la Sante\xe2\x80\x99 Publique, cited in Nicole Zwart-Hendrix, Chilling Aspects of Procreation, 21 Med.\n& L. 567, 569 (2002).\n70\nSee Reproductive Technology Council, The Human Reproductive Technology Act of 1991.\n71\nA provision of Victoria\xe2\x80\x99s Infertility Treatment Act of 1995 makes it a criminal offense to use the gametes or embryos\nof dead people. \xc2\xa743 Infertility Treatment Act of 1995.\n72\nLaw No. 154, 1997, \xc2\xa7 166, article No. 3.\n73\nHuman Fertilization and Embryology Act 2008 \xc2\xa739, Schedule 3 (the consent provisions); See also The Queen (on the\napplication of IM, MM) v. Human Fertilisation and Embryology Authority, 2015 WL 3630368 (June 15, 2015).\n69\n\n273\n\n\x0cdonor.74 Posthumous reproduction has conditional acceptance in the Netherlands and Greece as\nlong as written consent is acquired before the sperm donor dies.75\nProblems\n1. Juan and Isabella were married for ten years. Juan was diagnosed with stomach cancer and had to\nundergo chemotherapy. Dr. Chin informed the couple that the chemotherapy might render Juan\ninfertile. Juan and Isabella really wanted to have children. Therefore, Juan had his sperm frozen prior\nto submitting to treatment. As a part of that process, Juan signed a form stating that, in the event of\nhis death, he wanted Isabella to use his frozen sperm to conceive his child. In addition, Juan told his\nfriends that Isabella was the love of his life, and so it was important for a little piece of them both to\nexist on the earth. Unfortunately, Juan passed away in January of 2011. In June of 2012, Isabella\ndecided to have a child conceived using Juan\xe2\x80\x99s sperm. Isabella was insecure about her looks. She told\nher best friend, Debbie, \xe2\x80\x9cThere is no way I\xe2\x80\x99m passing on this face.\xe2\x80\x9d Debbie agreed to donate some\nof her eggs to Isabella, so Isabella could have the beautiful child that she wanted. After the hospital\nreleased Juan\xe2\x80\x99s sperm to Isabella, Isabella used the sperm to fertilize Debbie\xe2\x80\x99s egg. Isabella did not\nwant to mess up her figure, so she hired a surrogate, Hillary, to carry the child for her. On February\n18, 2013, Hillary gave birth to a little boy named Juan, Jr. Will Juan, Jr. be legally recognized as\nJuan\xe2\x80\x99s child? What ethical issues may arise out of these facts?\n2. Patrick signed a document giving his wife, Bonnie, permission to conceive a child using his sperm\nin the event that he died. Patrick wanted to make sure that Bonnie had something by which to\nremember him. Patrick was in a car accident. As a result, Patrick suffered brain damage and is in a\nvegetative state. Patrick is breathing on his own, but has very little brain activity. Doctors informed\nBonnie that Patrick would never recover from his condition. However, doctors confirmed that\nPatrick could remain in a vegetative state for years. Bonnie presented the written form Patrick signed\nand requested that the doctors extract Patrick\xe2\x80\x99s sperm, so that she could use it to conceive his child.\nBonnie does not want to wait until Patrick dies to get the sperm because her biological clock is\nticking. The head of the clinic has consulted you for advice. In light of the above-listed statutes, how\nwould you respond?\n3. Mitch told his wife Lisa that, if they did not conceive a child prior to his death, she could have his\nsperm extracted and use it to conceive a child posthumously. Without Mitch\xe2\x80\x99s knowledge, Lisa\nrecorded the conversation. A few months later, Lisa and Mitch had a fight over money. Mitch\nrefused to destroy the pre-nuptial agreement that limited Lisa\xe2\x80\x99s interest in his assets to 5% upon his\ndeath or if they got a divorce. According to the pre-nuptial agreement, any children of the marriage\nwould receive 25% of Mitch\xe2\x80\x99s assets. On June 10, 2014, Mitch filed for a divorce. Two days later,\nMitch was killed in a car accident. Lisa played the tape recorded conversation for the doctor and\ndemanded the removal of Mitch\xe2\x80\x99s sperm. The doctor complied with Lisa\xe2\x80\x99s request and she used\nAssisted Human Reproduction (Section 8 Consent) Regulations SOR/2007-137,\nUsha Ahluwalia and Maia Arora, Posthumous Reproduction and Its Legal Perspective, 2 International Journal of Fertility and\nFetal Medicine, 9, 12 (January 2011) (citing Art. 7 Embryos Bill); Mavroforou, A., Koumantakis, E., Mavrophoros, D.,\nand Michalodimitrakis, E., Medically assisted human reproduction: the Greek view, 26 Med. Law 339, 341 (2007)(citing Medically\nAssisted Human Reproduction Act 3089/02 which states \xe2\x80\x9cArtificial insemination carried out after the death of the\nhusband or the woman\'s partner, is allowed only by judicial permission and only under the following circumstances: a.\nThe husband or the permanent partner of the woman suffers from a disease, which endangers his life or fertility b. The\nhusband or the woman\'s partner has already given his consent before a notary for posthumous artificial insemination.\xe2\x80\x9d).\n74\n75\n\n274\n\n\x0cMitch\xe2\x80\x99s sperm to become pregnant. After Mitch\xe2\x80\x99s daughter, Michelle, was born, Lisa petitioned the\nestate for her 5% and for Michelle\xe2\x80\x99s 25%. The estate refused to honor Lisa\xe2\x80\x99s request, so she filed a\ncourt action. What probable result?\n4. Larry was rushed to the hospital after he suffered a massive heart attack. Larry did not survive the\nordeal. Larry\xe2\x80\x99s girlfriend, Tessa, showed the doctors at the hospital a letter Larry had written stating\nhis intent to divorce his wife and to marry Tessa. The letter also stated that Larry wanted to conceive\na child with Tessa. The hospital extracted Larry\xe2\x80\x99s sperm and released it to Tessa. Tessa conceived a\nchild using Larry\xe2\x80\x99s sperm. Larry died intestate. According to the intestacy statute, if Larry died with\nno surviving children, his surviving spouse is legally entitled to his entire estate. If Larry died with\nsurviving children, his surviving spouse is only entitled to receive one-third of the estate. In light of\nthe above statutes, how much of Larry\xe2\x80\x99s estate is his wife entitled to receive?\n6.3\n\nChildren Conceived Using Artificial Insemination\n\nWhen the statutory system allocating paternal responsibility was established a family\nconsisted of a man, a woman and children. The primary methods used to create a family were sexual\nintercourse and adoption. The availability of assisted reproductive technology permits persons to\nform families in various ways. The majority of states have statutes addressing the legal status of\nchildren conceived with the use of assisted reproductive technology. Most of the state legislatures\nthat have enacted statutes dealing with assisted reproduction have focused exclusively on artificial\ninsemination. Thus, most of the cases discussed in this section will involve the use of artificial\ninsemination. The statutes that exist establish the parental rights of the inseminated woman\xe2\x80\x99s\nhusband and the sperm donor.\nIn order for a child to inherit under the intestacy system, there must be a legally recognized\nparent-child relationship. This section examines the circumstances under which a man has a duty to\nfinancially support a child conceived using artificial insemination. Once the law recognizes the\nexistence of a father-child relationship for child support purposes, the child is given the opportunity\nto inherit from his or her father. If a man is financially responsible for a child during his lifetime,\nthat child is usually classified as his heir if he dies intestate. Once an artificially conceived child is\npermitted to inherit from his or her father, the issue that must be resolved is: from which \xe2\x80\x9cfather\xe2\x80\x9d\ndoes the child have the legal right to inherit. There are two possible answers to this question. The\nchild may have the right to inherit from the husband of his or her mother or from the man who\ndonated the sperm that resulted in his or her conception.\n6.4\n\nThe Paternity of the Inseminated Woman\xe2\x80\x99s Husband\n\nThe legal issue becomes: Is the child the legitimate heir of the inseminated woman\xe2\x80\x99s\nhusband? If the child is classified as legitimate, the child has the right to inherit from the man who\nwas married to the child\xe2\x80\x99s mother at the time of the artificial insemination. Under the common law,\nthe child would be in the class of heirs if the child was conceived during marriage. The states that\nhave enacted statutes addressing the status of children conceived by artificial insemination have\ntaken different routes to arrive at the same answer\xe2\x80\x94the child is the legitimate child of the woman\xe2\x80\x99s\nhusband. Thus, the child has the right to inherit from and through the man.\n\n275\n\n\x0c6.4.1\n\nConsenting Husband is the Legal Father\n\nIn the majority of jurisdictions, if the husband does not consent in writing to the artificial\ninsemination of his wife, he is not responsible for providing financial support to the resulting child.\nHence, it follows that the child would not be eligible to inherit from the non-consenting husband. A\nfew states require that the husband\xe2\x80\x99s consent to the artificial insemination be in writing.\nNonetheless, some courts have stated that consent is not limited to written consent. Therefore, a\nman may become responsible for the artificially conceived child as a result of his actions. Some state\nstatutes require that the husband consent to the artificial insemination without specifically stating\nthat the consent has to be in writing.\n6.4.1.1 Written Consent\nWhen evaluating the consent of the woman\xe2\x80\x99s husband for purposes of establishing the\nfather-child relationship, the first thing the courts attempt to determine is whether or not the\nhusband gave written consent. Resolving that inquiry requires the court to answer two questions: (1)\nwhether there was a writing and (2) whether the writing satisfies the statutory mandate. This is not a\nstraight forward analysis because most of the state statutes do not identify the type of document that\nis necessary to satisfy the written consent requirement. In addition, the statutes do not specify the\nnecessary content of the writing and the time at which the writing must be signed. The court in the\nfollowing case gave the written consent requirement a flexible meaning and used the doctrine of\nsubstantial compliance to recognize the woman\xe2\x80\x99s husband as the legal father of the artificially\nconceived child.\n\nLane v. Lane, 912 P.2d. 290 (N.M. 1996)\nHARTZ, J.\nTwentieth-century science has complicated the law of paternity. Advances in biology make it\npossible both to determine and to create biological parents in ways not contemplated a few decades\nago. On the one hand, laboratory technicians can now rebut the presumption that the husband of\nthe mother at the time of conception is the biological father. On the other, physicians can now\nenable infertile couples to have children who do not share both parents\' genes. Legislatures have\nbeen attempting to design paternity statutes that properly balance the important interests at stake.\nThis appeal requires us to interpret one such attempt, the Uniform Parentage Act (the Uniform Act),\napproved by the National Conference of Commissioners on Uniform State Laws in 1973 and\nenacted, with some modifications, in New Mexico in 1986, NMSA 1978, \xc2\xa7\xc2\xa7 40-11-1 to -23\n(Repl.Pamp.1994) (the New Mexico Act).\nThe dispute before us arises out of the dissolution of the marriage of Arlene Daniels Lane (Wife)\nand Terrence M. Lane (Husband). Wife appeals the district court\'s order granting Husband joint\ncustody of Colleen Lane, who was conceived during the marriage by artificial insemination from an\nanonymous donor. Husband is neither the biological nor adoptive parent of Colleen. The issue on\nappeal is whether Husband should nevertheless be treated as Colleen\'s \xe2\x80\x9cnatural\xe2\x80\x9d father. We hold\nthat he acquired that status through substantial compliance with the New Mexico Act. We therefore\naffirm the judgment of the district court.\n276\n\n\x0cBackground\nHusband and Wife were married on December 4, 1984. With three children from two previous\nmarriages, Husband had undergone a vasectomy in 1980. Shortly after the marriage, however, Wife\nexpressed a desire to have children. Husband was hesitant and refused to have his vasectomy\nreversed. But after Wife stated that she would leave Husband if she could not have children,\nHusband and Wife explored various options. They chose artificial insemination from an anonymous\ndonor, obtaining help first from a personal physician and then from the University of New Mexico\nHospital. Husband participated in the process, driving Wife for some medical visits, attending\nbirthing classes, and being present in the delivery room for the birth of Colleen. Husband testified\nthat Wife assured him that he would be treated in all respects as the father of the child. He also\ntestified that to ensure that Colleen would think he was her natural father, Wife made him swear not\nto reveal that she had undergone artificial insemination but, rather, to represent the child as having\nbeen conceived naturally by the couple.\nThe customary practice of the University of New Mexico Hospital was not to undertake artificial\ninsemination without the signed consent of both the husband and the wife. A hospital representative\ntestified that the consent\'s purpose was to make the couple aware of the risks involved, to establish\nthat they both wished to participate in the program, and to obtain a release from liability. Yet, the\nonly signed consent form relating to Wife is a document signed just by Wife and apparently brought\nto the hospital by Wife from her previous physician. Neither Husband nor Wife recalled signing any\nform of consent relating to the insemination that led to the conception of Colleen. Neither the\nhospital files nor the records of the New Mexico Bureau of Vital Records and Health Statistics\ncontain any additional consent form, although medical notes for a later unsuccessful attempt to\nconceive another child in 1990 contain the notation: \xe2\x80\x9cpatient [Wife] and spouse signed consent.\xe2\x80\x9d\nAfter Colleen was born, both Husband and Wife told friends and relatives that Husband was\nColleen\'s natural father. Husband appears as Colleen\'s father on her birth certificate, although the\ncircumstances under which his name was entered are unclear. See NMSA 1978, \xc2\xa7 24-14-13(D)\n(Repl.1986) (birth certificate should name husband of mother as father unless paternity established\nin court or by agreement of both spouses and putative husband). Wife encouraged Husband to be\nan active parent, and he was.\nOn May 10, 1991 Husband filed a petition to dissolve the marriage. The petition, which Husband\nverified, alleges that Colleen is a child of the marriage. The response to the petition, which Wife\nverified, requests that she be awarded sole legal and physical custody of the child but admits that\nColleen was a child of the marriage and does not challenge Husband\'s paternity. On March 26, 1992\nthe attorneys for Husband and Wife approved a stipulated order stating that the parties \xe2\x80\x9cagree and\nstipulate\xe2\x80\x9d that Husband and Wife \xe2\x80\x9care the parents of Colleen Dawn Lane, born August 26, 1988.\xe2\x80\x9d\n7. On February 16, 1993 a new attorney entered an appearance for Wife. Two weeks later that\nattorney moved for leave to file an amended response and counterpetition, stating that \xe2\x80\x9c[t]he facts\nleading to the proposed Amended Response and Counterpetition have recently come to light.\xe2\x80\x9d The\nnew pleadings for the first time alleged that Colleen was conceived through artificial insemination\nand that Husband was neither her natural nor legal father.\nAfter trial on the issues of paternity and custody, the district court awarded joint custody in July\n1993. The court concluded that \xe2\x80\x9c[i]t is inequitable to strictly apply [the New Mexico Act] to this\n277\n\n\x0ccase, because this Court finds that both parties manifested through their actions and words that they\nboth consented to the artificial insemination.\xe2\x80\x9d A final order setting forth the terms of joint custody\nwas entered by the district court on February 7, 1995.\nDiscussion\nAlthough a stepparent may be entitled to visitation rights after dissolution of a marriage, see NMSA\n1978, \xc2\xa7 40-4-9.1(L)(4) and (8) (Repl.Pamp.1994); Rhinehart v. Nowlin, 111 N.M. 319, 323-25, 805 P.2d\n88, 92-94 (Ct.App.1990); id. at 330-32, 805 P.2d at 99-101 (Hartz, J., concurring), Husband has a\nright to custody only if he is Colleen\'s \xe2\x80\x9cnatural\xe2\x80\x9d father. According to the statutory provision\ngoverning joint custody of children after dissolution of marriage, \xe2\x80\x9c[w]hen any person other than a\nnatural or adoptive parent seeks custody of a child, no such person shall be awarded custody absent\na showing of unfitness of the natural or adoptive parent.\xe2\x80\x9d Section 40-4-9.1(K).\nUnder what circumstances may someone who is not the biological father be the \xe2\x80\x9cnatural\xe2\x80\x9d father?\nNew Mexico law provides that \xe2\x80\x9c[t]he parent and child relationship between a child and ... the natural\nfather may be established as provided in the [New Mexico] Act.\xe2\x80\x9d Section 40-11-4(B). The New\nMexico Act recognizes a presumption of paternity in several circumstances, such as when the child\nis born during the marriage, \xc2\xa7 40-11-5(A)(1), or when the man during the child\'s minority \xe2\x80\x9copenly\nholds out the child as his natural child and has established a personal, financial or custodial\nrelationship with the child,\xe2\x80\x9d Section 40-11-5(A)(4). Husband here could rely on one or more of\nthese presumptions, except that the presumptions can be rebutted by clear and convincing evidence.\nSection 40-11-5(C). Any presumption in this case was indisputably rebutted by evidence of\nHusband\'s sterility and the artificial insemination.\nConsequently, Husband\'s claim to be Colleen\'s natural father must rest on Section 40-11-6, which\naddresses artificial insemination. It reads:\nA. If, under the supervision of a licensed physician and with the consent of her husband, a\nwoman is inseminated artificially with semen donated by a man not her husband, the\nhusband is treated as if he were the natural father of the child thereby conceived so long as\nthe husband\'s consent is in writing, signed by him and his wife. The physician shall certify\ntheir signatures and the date of the insemination and file the husband\'s consent with the vital\nstatistics bureau of the health services division of the health and environment department\n[department of health], where it shall be kept confidential and in a sealed file; provided,\nhowever, that the physician\'s failure to either certify or file the consent shall not affect the\nfather and child relationship.\nB. Any donor of semen provided to a licensed physician for use in artificial insemination of a\nwoman other than the donor\'s wife may be treated as if he were the natural father of the\nchild thereby conceived if he so consents in writing signed by him and the woman. The\nphysician shall certify their signatures and the date of the insemination and file the donor\'s\nconsent with the vital statistics bureau of the health services division of the health and\nenvironment department [department of health] where it shall be kept confidential and in a\nsealed file; provided, however, that the physician\'s failure to either certify or file the consent\nshall not affect the father and child relationship.\nC. All papers and records pertaining to the insemination, whether part of a court, medical or\n278\n\n\x0cany other file, are subject to inspection only upon an order of the court for good cause\nshown.\nWife argues that written consent is essential if the husband is to be treated as the natural father. She\npoints out that the statute not only requires the husband\'s consent but also specifically provides that\nthe husband is treated as the natural father only \xe2\x80\x9cso long as the husband\'s consent is in writing,\nsigned by him and his wife.\xe2\x80\x9d Comparison of the language of the New Mexico Act with the language\nof the Uniform Act reinforces the argument that the existence of a writing is an absolute\nrequirement for the husband to be treated as the natural father. The first sentence of the New\nMexico Act differs in a suggestive way from the first two sentences of the Uniform Act. Section 5 of\nthe Uniform Act states:\nIf, under the supervision of a licensed physician and with the consent of her husband, a wife is\ninseminated artificially with semen donated by a man not her husband, the husband is treated in law\nas if he were the natural father of a child thereby conceived. The husband\'s consent must be in\nwriting and signed by him and his wife.\nThe New Mexico Act\'s version of this language-combining the two sentences by inserting the\nconditional phrase \xe2\x80\x9cso long as\xe2\x80\x9d-serves little purpose but to emphasize the dependence of the\nhusband\'s status on the execution of a written consent.\nMoreover, the New Mexico Act (just as the Uniform Act) explicitly states that the failure of the\nphysician to certify the signatures and file the consent shall \xe2\x80\x9cnot affect the father and child\nrelationship.\xe2\x80\x9d By stating that the failure to comply with certain requirements does not affect the\nhusband\'s status as the natural father, the statute implies that failure to comply with other\nrequirements does affect that status.\nWife further argues that strict compliance with the statutory requirements is called for because of\nthe precious maternal rights that are at stake. Although the district court did not annul Wife\'s right\nto her child, the reduction in those rights resulting from her having to share joint custody with\nHusband is a matter of profound significance. Indeed, there is some authority that even granting just\nvisitation rights to a third party can violate the constitutional rights of a parent. See Brooks v.\nParkerson, 265 Ga. 189, 454 S.E.2d 769 (holding grandparent visitation statute to be\nunconstitutional), cert. denied, 516 U.S. 942, 116 S.Ct. 377, 133 L.Ed.2d 301 (1995); but see Campbell v.\nCampbell, 896 P.2d 635 (Utah Ct.App.1995) (refusing to follow Brooks).\nThe final step in Wife\'s argument is simply to point out that there was not strict compliance with the\nNew Mexico Act in this case. The record contains no written consent signed by both Husband and\nWife. Although there was sufficient evidence at trial for the district court to make a finding that such\na document had once been in existence, the district court made no such finding.\nWife\'s syllogism is not without persuasive force. But we do not adopt it. In our view, the absence of\nstrict compliance does not end the inquiry. To begin with, despite the constitutional protection given\nto parenthood, we view the matter before us as a matter of statutory construction. We are aware of\nno constitutional doctrine that insists on a genetic basis for parenthood. Wife does not suggest that\nSection 40-11-6, which permits a husband who is not the biological father to be treated as the\nnatural father, is unconstitutional. Nor does she suggest that the statute would be unconstitutional if\nthe requirement of a writing were eliminated. Although the importance of the interests involved\n279\n\n\x0ccautions us to be circumspect, traditional precepts of statutory interpretation should apply.\nThose precepts tell us that even though a statute constitutes a command to the courts regarding\nwhat law to apply, the command must be read with intelligence. The legislature, as with anyone who\nissues an order, cannot anticipate every contingency. The legislature can, however, expect that when\none of its orders (i.e., a law) is to be carried out, those who have that duty (i.e., the courts) will\ndiscern its purpose and act in accordance with its essence if not necessarily its letter. The doctrine of\nstatutory interpretation that captures this proposition is the doctrine of substantial compliance.\nUnder that doctrine, \xe2\x80\x9ca court should determine whether the statute has been followed sufficiently so\nas to carry out the intent for which the statute was adopted and accomplishes the reasonable\nobjectives of the statute.\xe2\x80\x9d Vaughn v. United Nuclear Corp., 98 N.M. 481, 485, 650 P.2d 3, 7 (Ct.\nApp.), cert. quashed, 98 N.M. 478, 649 P.2d 1391 (1982).\nApplication of the substantial-compliance doctrine is a risky venture. The danger, of course, is that\nthe court will choose its personal view of what is just or fair, rather than complying with the\nmandate of the statute. Departure from the strict letter of a statute should therefore be undertaken\nwith great caution. In particular, one must be careful not to underestimate the purposes served by\nstrict compliance with the letter of the statute.\nKeeping these concerns in mind, we nevertheless find that this case presents an example of\nexceptional circumstances in which the doctrine of substantial compliance must be employed. The\npurposes of Section 40-11-6(A) are best effectuated by treating Husband as Colleen\'s natural father.\nThe essential policy of the section is that when a husband and wife both approve of her conceiving a\nchild through artificial insemination and both wish the husband to be treated as the natural father,\nthen the State should honor that wish. As for the requirement that the consent be in writing, we\nhave searched in vain for commentary on the Uniform Act that addresses the matter. See, e.g., Harry\nD. Krause, Bringing the Bastard Into the Great Society-A Proposed Uniform Act on Legitimacy, 44 Tex. L. Rev.\n829 (1966) (described in the prefatory note to the Uniform Act as providing the genesis for the Act).\nNevertheless, it appears clear to us that the requirement of a writing serves two functions. First, the\nwriting serves an evidentiary function. The existence of a document signed by the husband and the\nwife avoids disputes regarding whether consent was actually given. Second, the requirement serves a\ncautionary purpose. One who pauses to sign a document can be expected to give more thought to\nthe consequences of consent than one who gives consent in a less formal setting. An additional\npurpose that may be served by the requirement of written consent is to protect from liability the\nmedical personnel who conduct the procedure, but failure to advance that purpose could hardly be a\nground for denying the husband\'s status as a natural parent.\nIt is important to note that while the New Mexico Act requires a writing to achieve these two\npurposes, it is not rigid about the nature of the writing. The statute does not require any particular\nform of words for the consent. Given the purposes of the statute, a writing should be satisfactory if\nit conveys in some manner that (1) the husband knows of the conception by artificial insemination,\n(2) the husband agrees to be treated as the lawful father of the child so conceived, and (3) the wife\nagrees that the husband will be treated as the lawful father of the child.\nWe also note that the New Mexico Act does not prescribe when the written consent must be\nexecuted. Although the mother may wish to be assured of the husband\'s responsibility toward the\nchild before undergoing the procedure, and the medical personnel may wish to be assured that the\n280\n\n\x0chusband will not hold them responsible before they initiate the procedure, the evidentiary and\ncautionary purposes of the writing requirement can be fully served by a writing executed after the\nartificial insemination, or even after the birth of the child. We fail to see how the date of the writing\naffects the probative value of the writing as evidence of the consent. The date certainly has less\neffect on the probative value than does the presence or absence of certification by the physician,\nwhich is a statutory requirement that by the express terms of the statute \xe2\x80\x9cshall not affect the father\nand child relationship.\xe2\x80\x9d Section 40-11-6(A). As for the cautionary purpose of the writing\nrequirement, a consent to parenthood after successful insemination, and especially after the birth of\nthe child, would probably reflect more solemn consideration than such a consent before the\ninsemination procedure. After all, the full consequences of consent become strikingly evident once\nthe child is born.\nThe above analysis of the purposes and terms of Section 40-11-6(A) convinces us that there was\nsubstantial compliance with the New Mexico Act in this case. Of particular interest are the pleadings\nfiled in district court. Husband verified his petition claiming Colleen as a \xe2\x80\x9cminor child[ ] of the\nmarriage.\xe2\x80\x9d Wife likewise verified the response, which admitted that \xe2\x80\x9cthere is one minor child of the\nmarriage, Colleen Dawn Lane,\xe2\x80\x9d and did not challenge Husband\'s paternity in any manner. Later in\nthe litigation the attorneys for Husband and Wife each signed a stipulated order which stated: \xe2\x80\x9cThe\nparties agree and stipulate as follows: 1. The parties are the parents of Colleen Dawn Lane, born\nAugust 26, 1988.\xe2\x80\x9d Although no document was signed by both Husband and Wife, and one of the\npleadings was signed only by their attorneys, these pleadings unequivocally demonstrate that more\nthan two and one-half years after the birth of Colleen, and even after the marriage had failed, both\nHusband and Wife were acknowledging Husband\'s status as Colleen\'s natural father. Cf. NMSA\n1978, \xc2\xa7 55-2-201(3)(b) (Repl.Pamp.1993) (Uniform Commercial Code statute of frauds can be\nsatisfied by a pleading). To be sure, missing from these documents is any reference to the artificial\ninsemination by which Colleen was conceived. But there is absolutely no dispute in this case that\nHusband was fully aware of the artificial insemination and that Wife knew that he was fully aware.\nThere is not even a whisper of a possibility that Husband was deceived regarding the circumstances\nof Colleen\'s conception. Consequently, the pleadings referred to represent a knowing consent by\nboth Husband and Wife to treating Husband as the natural father of the child born to Wife as a\nresult of artificial conception. The purposes of the statute are served.\nWe recognize that pleadings can be amended and a party is not necessarily bound by the first\npleading filed in court. Indeed, the district court in this case permitted Wife to file an amended\nresponse to Husband\'s petition and a counterpetition challenging Husband\'s paternity. Nevertheless,\nwe fail to see why the fact that a pleading can be amended to expand the issues to be decided at trial\nshould necessarily impact upon the effect of statements in those pleadings with respect to Section\n40-11-6(A). Nothing in the New Mexico Act permits withdrawal of consent. Wife has not suggested\nany equitable grounds for setting aside her sworn allegation or the stipulation of her counsel. At\nmost, she could argue that the statements were made without knowledge of (1) the requirements of\nSection 40-11-6(A) or (2) the absence of a written consent to the artificial insemination. In the\ncircumstances of this case, we see no reason why Wife\'s ignorance of the law and of that particular\nfact warrants setting aside the clear import of the assertions made in the pleadings-that both\nHusband and Wife considered Husband to be Colleen\'s father.\nConclusion\nWe affirm the judgment of the district court. The parties shall bear their own costs and attorney\'s\n281\n\n\x0cfees on appeal.\nNotes and Questions\n1. If the husband in Lane sought to be relieved of all legal responsibility for the child, would the\nresult of the case have been the same?\n2. In Lane, the husband refused to reverse his vasectomy. In addition, the husband never gave\nwritten consent to have his wife artificially inseminated. In light of those facts, did the court\ncorrectly conclude that the husband had substantially complied with the statutory written consent\nrequirement?\n3. What are the disadvantages of the court giving \xe2\x80\x9cwritten consent\xe2\x80\x9d such a broad meaning?\n4. Does the court\xe2\x80\x99s analysis conflict with the plain language of the statute? Do you think that it\ncarries out the legislature\xe2\x80\x99s intent?\n5. Based upon the three-part test established in the case, in which of the following situations would\nthe written consent requirement be satisfied?\n(a) The husband posted a message on his social media page stating that he and his wife were going\nto be parents.\n(b) Husband and Wife sign and send out the following baby shower announcement: \xe2\x80\x9cPlease join us\nto celebrate the impending birth of our child.\xe2\x80\x9d\n(c) Prior to the birth of the child, Husband and Wife fill out an adoption petition requesting that\nHusband be allowed to adopt the child.\n(d) Husband and Wife execute a contract in which they agree that the Husband will be the father of\nany child born during their marriage.\n6.4.1.2 Verbal Consent\nThe key purpose of the written consent requirement is to make sure that the husband is not\nforced to parent a child without his consent. Consequently, if the husband acknowledges that he\nconsented to the artificial insemination, the court will recognize him as the legal father even in the\nabsence of written consent. As the next case indicates, once the court determines that the man has\ngiven some type of consent, written or verbal, that consent cannot be easily revoked. The majority\nof states do not permit a man to withdraw his initial consent to the artificial insemination. Thus, a\nman who changes his mind after initially consenting to the artificial insemination of his wife may still\nbe recognized as the legal father of the resulting child.\n\n282\n\n\x0cK.S. v. G.S., 440 A.2d 64 (N.J. Super. Ct. App. Div. 1981)\nMILLER, J. S. C.\nThis matter comes before the court on plaintiff wife\'s motion for pendente lite support and custody\nof the infant child, J. S., who was born during the course of plaintiff\'s marriage to defendant but was\nconceived by a technique of artificial insemination known as \xe2\x80\x9cartificial insemination by donor\xe2\x80\x9d\n(AID). Since a full exposition of the factual background is necessary for a proper understanding of\nthe case, the following findings of fact are made.\nThe parties were married on December 6, 1977. Defendant had been previously married and\ndivorced. After a third child was born of the prior marriage and before the marriage to present\nplaintiff, defendant voluntarily underwent a vasectomy operation which sterilized him. Plaintiff was\naware of defendant\'s infertility prior to their marriage.\nSeveral months after marriage plaintiff learned of the AID procedure. The parties were referred by\ntheir family physician to Lewis Ladocsi, an obstetrician and gynecologist, who specialized in the field\nof fertility. Ladocsi first saw the couple on July 8, 1978, at which time he intensively interrogated the\ncouple, took a joint history and explained the AID process to them. He also noted physical\ncharacteristics of defendant for the purpose of obtaining a \xe2\x80\x9cmatching\xe2\x80\x9d donor and directed that\nblood tests be taken for the purpose of aiding in the screening of donor applicants. Ladocsi\nquestioned defendant closely in order to determine whether he understood and consented to AID.\nDefendant stipulates he gave his verbal consent to the procedure at that time.\nLadocsi did not, however obtain any written consent from defendant. He indicated that at the time it\nwas not his practice to obtain written consents from AID patients. His present practice, however, is\nto obtain written consent before commencing the AID process. New Jersey statutory law does not\nrequire written consent be obtained by a physician before the commencement of AID procedures,\nand did not in 1978.\nA suitable donor was selected and a series of three artificial insemination procedures took place in\nJuly 1978. The initial insemination process was successful and plaintiff was tested positive for\npregnancy on August 19, 1978. That pregnancy did not result in a live birth because a spontaneous\nmiscarriage took place in early September 1978.\nDefendant, after the miscarriage, expressed feelings of sympathy and urged plaintiff to continue the\nprocedures when she was able to do so. Although defendant testified to the contrary, he court finds\nthat he expressed no reservations to continuing the AID procedures for any reason at that time.\nDuring 1978 the parties had several discussions concerning the continuing cost of the AID\nprocedures, which placed a strain on the family budget and resulted in several overdrafts on the joint\nchecking account. Defendant contends he told plaintiff to stop the AID treatments because of the\ncost. This testimony is not credible and is inconsistent with plaintiff\'s convincing testimony that\ndefendant accompanied plaintiff to Ladocsi\'s office for the insemination procedure on several\noccasions in 1979, including at least one occasion in October 1979. Defendant also admitted he\nnever advised Ladocsi at any time that he had any reservations concerning continuing the AID\nprocedure.\n283\n\n\x0cCommencing in November 1978 plaintiff continued with the AID procedures at the rate of\napproximately three inseminations during her fertile cycles. Various medications were prescribed and\nvarious examinations were employed to confirm her continuing ability to conceive, since she failed\nto become pregnant for many months. Finally, in October 1979 she became pregnant with J. S.\nAfter plaintiff\'s pregnancy was confirmed defendant became distant and uncommunicative. On\nDecember 30, 1979 he left the marital premises \xe2\x80\x9cto think things out.\xe2\x80\x9d In a telephone conversation\nbetween the parties shortly after that date defendant advised plaintiff he objected to her pregnancy.\nThe parties continued to live separately until the child was born on July 28, 1980. Plaintiff filed a\ncomplaint for divorce on October 7, 1980, seeking support for the child. Defendant has never seen\nthe infant or contributed to its support.\nIt is clear that in the absence of a husband\'s consent to artificial insemination, support obligations\nmay not be imposed on him. People v. Sorenson, 68 Cal.2d 280, 66 Cal.Rptr. 7, 437 P.2d 495\n(Sup.1968); Adoption of Anonymous, 74 Misc.2d 99, 345 N.Y.S.2d 430 (Surr.Ct.1973). Legislation\naddressing the problem of the paternal duties created by artificial insemination has likewise\nuniformly conditioned imposition of all such obligations in a marital context upon a husband\'s valid\nconsent to use of the procedure.\nIn the case at bar, the initial consent of the husband is clearly established. Defendant contends he\nwithdrew his consent to the AID procedure prior to conception by informing plaintiff of his\nopposition to continuing the inseminations. He further contends that plaintiff then went ahead with\nAID procedures surreptitiously and without his knowledge or approval in the face of his opposition.\nIn the present case the initial AID sequence was followed first by a miscarriage, then by resumption\nof artificial insemination procedures. As the procedures continued and pregnancy did not result,\nalternative courses of treatment for infertility were attempted, each followed by another series of\nAID procedures. When plaintiff finally conceived, it was approximately 15 months after defendant\'s\ninitial consent.\nTwo questions are therefore presented. First, does consent to AID, once given, continue until\npregnancy is accomplished? Second, if consent be deemed to continue, what burden of proof must\nbe met to establish withdrawal of consent?\nLegislation which has considered artificial insemination has favored continuation of consent. Such a\nresult is achieved by presuming the husband\'s initial and continuing consent to artificial insemination\nprocedures and placing the burden on him to establish otherwise.\nAlthough no cases are reported in that jurisdiction dealing with legitimacy in the context of artificial\ninsemination, it has been held that the presumption of legitimacy may be rebutted by \xe2\x80\x9ccontrary\nevidence ... of greater persuasion than that having given rise to the presumption....\xe2\x80\x9d Zamaludin v.\nIshoff, 44 Md. App. 538, 409 A.2d 1118, 1121 (Ct.Spec.App.1980), interpreting Md. Code Ann. s 1105(b).\nIn legitimacy or paternity cases where pregnancy has been naturally induced, the central issue is\noften an evidentiary question of access or nonaccess of the putative father at the time of conception.\n284\n\n\x0cIn New Jersey, in order to sufficiently rebut the presumption of legitimacy of a child born or\nconceived prior to the dissolution of marriage in such cases, proof of illegitimacy must be such that\n\xe2\x80\x9cthere is no possible escape\xe2\x80\x9d from that conclusion. In re Rogers\' Estate, 30 N.J.Super. 479, 105 A.2d\n28 (App.Div.1954); Egnozzi v. Egnozzi, 17 N.J.Super. 433, 86 A.2d 272 (App.Div.1952). If proof of\nillegitimacy is by nonaccess of the husband, evidence of nonaccess must be clear and convincing,\nstrong and irresistible, or something just shy of absolute certainty. Jackson v. Prudential Ins. Co. of\nAmerica, 106 N.J.Super. 61, 77, 254 A.2d 141 (Law Div.1969).\nThe court recognizes that, from the point of view of the partners involved in artificial insemination,\nthere is a physical and psychological difference in the manner the pregnancy will be perceived.\nFrom the point of view of the female partner, although the child is conceived artificially, from all\nother aspects it is a natural child, carried to term exactly as if conception had taken place by natural\nmeans. While there may be a lingering question in her mind during the pregnancy as to what the\nchild\'s physical characteristics may be, after undergoing the painful and emotional experience of\nchildbirth, that uncertainty will be resolved.\nFor the male partner, on the other hand, it is quite possible that his perception of the pregnancy will\nbe substantially different. He is not the natural father, as the mother is the natural parent, and must\nbe well aware of that fact. He may experience feelings of inadequacy, resentment or other negative\nattitudes toward the pregnancy, as illustrated by the case at bar. Thus, from the male point of view\nthe pregnancy and resulting issue is, in many ways, akin to an adoption of the resulting child.\nHowever, whereas society has seen fit to regulate the artificial status of parent and child resulting\nfrom the adoption process, to insure as much as possible the stability of the relationship being\ncreated, no such protections exist at this time with regard to the field of artificial insemination.\nN.J.S.A. 9:3-17 et seq. Until such safeguards are supplied by legislative enactment, they must be\nsupplied on a case-by-case basis.\nIn artificially induced pregnancy cases, nonaccess, of course, becomes irrelevant but is replaced by\nthe issue of consent in order to establish legitimacy. Since consent, once it is disputed, is often far\nmore difficult to prove to the same degree of certainty as physical access, it is only practical and\nreasonable to apply a rebuttable presumption criterion in determining threshold evidentiary\nquestions as to the existence of consent at a certain point in time. This is particularly true when the\nquestion becomes one of withdrawal of an initial consent to the procedure.\nMany states have resolved this problem by enacting statutes requiring that consent be provided in\nwriting, although none specifically requires revocation of consent to be of the same formality.\n(citations omitted). Such legislative mandate achieves certainty and also diminishes problems of legal\nproof.\nPublic policy considerations seeking to prevent children born as a result of AID procedures from\nbecoming public charges or being bastardized require that a presumption of consent exist and that a\nstrong burden be placed on one seeking to rebut the presumption. C. M. v. C. C., 152 N.J.Super.\n160, 166, 377 A.2d 821 (Cty.Ct.1977). The same policy considerations are present whether the\nquestion presented is one of initial or continued consent. The absence of any authority limiting the\ncontinuing effectiveness of consent also leads to the conclusion that consent of the husband (in the\ncase of married partners), once given, is presumed to be effective at the time when pregnancy\noccurs, unless the husband establishes by clear and convincing evidence that such consent has been\n285\n\n\x0crevoked or rescinded. Defendant has not met that burden.\nInsofar as this is the case, the best interests of the child, the mother, the family unit and society are\nserved by recognizing that the law surrounding AID insemination deals with the creation of a family\nunit and more particularly with the creation of parent-child relationships. Thus viewed, the public\npolicy objectives served by legitimacy laws should similarly and consistently be applied in dealing\nwith closely related problems presented by the use of AID techniques.\nAccordingly, defendant is declared to be the lawful father of J. S. and as such bears at least partial\nresponsibility for the child\'s support. The amount thereof is deferred pending submission by the\nparties of updated financial data to the court within 20 days of the date hereof.\nThe issue of custody is not disputed at all by defendant. Therefore, custody of J. S. is granted to\nplaintiff. Defendant is granted reasonable and liberal visitation with the child, should he choose to\nexercise it, subject to the requirement that he advise the plaintiff by telephone at least 24 hours in\nadvance of each visit of his intention to exercise visitation.\nMotion granted.\n6.4.1.3 Presumed Consent\n\nW.W. v. W.W., 51 A.D.3d 211 (N.Y. App. Div. 2008)\nSPAIN, J.\nAt issue is the novel question of whether a husband can be deemed the legal parent of a child born\nto his wife, where the child was conceived as a result of artificial insemination by donor (hereinafter\nAID) during the marriage, but where the husband\'s consent to the AID was not obtained in writing.\nThe parties to this divorce action were married in 1995. After two children were born to the\nmarriage, defendant (hereinafter the husband) had a vasectomy. In 2004, plaintiff (hereinafter the\nwife) became pregnant again, as a result of AID, with a third child (hereinafter the child). A few\nmonths into the wife\'s pregnancy, the parties separated pursuant to an agreement which provided,\namong other things, that the husband would not be financially responsible for the child. However, in\nher subsequent complaint for divorce, the wife alleged that the child was born to the marriage. The\nparties then entered a settlement agreement which reaffirmed the terms of the separation agreement\nand calculated the husband\'s support obligation based on two children. Thereafter, Supreme Court\nfound that the provision in the separation agreement absolving the husband of his support\nobligation for the child was void as against public policy. Following a hearing on the issue of\npaternity, Supreme Court held that the husband was the child\'s legal father and modified the parties\'\nstipulation by increasing the husband\'s child support obligation based upon three children, instead\nof two. Thereafter, the court entered judgment granting the divorce. The husband appeals and we\nnow affirm.\nInitially, we agree with Supreme Court that the provision of the settlement agreement absolving the\nhusband of any support obligation with respect to the child is unenforceable. Despite the fact that\nthe parties stipulated to the terms of the divorce, the court correctly recognized its obligation to\n286\n\n\x0cprotect the best interests of the child, and appointed a Law Guardian. Indeed, the agreement left the\nchild fatherless without any hearing or analysis of the child\'s rights and interests. Given that \xe2\x80\x9cthe\nneeds of a child must take precedence over the terms of the agreement when it appears that the best\ninterests of the child are not being met,\xe2\x80\x9d we agree that the parties\' agreement-which preceded any\ndetermination of legal paternity-to leave the child without the husband\'s support cannot stand\n(Matter of Gravlin v. Ruppert, 98 NY2d 1, 5 [2002]; see Harriman v Harriman, 227 AD2d 839, 841\n[1996]).\nNext, we turn to the application of Domestic Relations Law \xc2\xa7 73 to the facts of this case. That\nsection provides a mechanism for married couples who utilize AID to have a child with assurances\nthat the child will be, for all purposes, considered the legitimate child of both the woman and her\nhusband (see Domestic Relations Law \xc2\xa7 73[1]). Specifically, Domestic Relations Law \xc2\xa7 73, which\ncreates an irrebuttable presumption of paternity when certain conditions are met, states:\n\xe2\x80\x9cAny child born to a married woman by means of artificial insemination performed by\npersons duly authorized to practice medicine and with the consent in writing of the woman\nand her husband, shall be deemed the legitimate, natural child of the husband and his wife\nfor all purposes. . . .\n\xe2\x80\x9cThe aforesaid written consent shall be executed and acknowledged by both the husband\nand wife and the physician who performs the technique shall certify that he [or she] had\nrendered the service.\xe2\x80\x9d\nGiven the clear and specific language making written consent a prerequisite to invoking the statute\'s\nprotections, we cannot find that the statute applies where, as here, it is conceded that the husband\ndid not consent in writing to the procedure. Indeed, the wife\'s physician testified that he rarely\nperformed AID and conceded that he did not have any office protocol or standard form for\nobtaining the consent of the woman\'s husband. Under these circumstances, we conclude that\nDomestic Relations Law \xc2\xa7 73 does not establish the husband\'s relationship to the child.\nThe fact that paternity cannot be established by statute, however, does not end our inquiry (cf. In re\nParentage of M.J., 203 Ill 2d 526, 535-537, 787 NE2d 144, 149-150 [2003] [holding written consent to\nAID essential to finding paternity]). Neither the language nor legislative history of Domestic\nRelations Law \xc2\xa7 73 suggests that it was intended to be the exclusive means to establish paternity of a\nchild born through the AID procedure. Indeed, the statute, by its terms, covers one specific\nsituation where it operates to create an irrebuttable presumption of paternity; it applies only where\nthe parties are married, the procedure is performed by a person \xe2\x80\x9cduly authorized to practice\nmedicine\xe2\x80\x9d and the consent is appropriately written, executed, acknowledged and certified (see\nAttorney General\'s Mem in Support, Bill Jacket, L 1974, ch 303, at 3 [noting statute does not address\nthe legitimacy of children born without husband\'s written consent or those conceived by AID prior\nto the enactment of the statute]; see also Matter of Thomas S. v Robin Y., 209 AD2d 298, 299 [1994], lv\ndismissed 86 NY2d 779 [1995] [insemination performed by the woman at home]).\nCertainly, situations will arise where not all of these statutory conditions are present, yet equity and\nreason require a finding that an individual who participated in and consented to a procedure\nintentionally designed to bring a child into the world can be deemed the legal parent of the resulting\nchild (see Letter from Div of Human Rights, Bill Jacket, L 1974, ch 303, at 9 [noting the statute does\nnot provide a result where AID is performed by someone other than a \xe2\x80\x9c \xe2\x80\x98duly authorized\xe2\x80\x99\n287\n\n\x0cphysician,\xe2\x80\x9d but that status of the medical professional should not impact legitimacy of child]).\nIndeed, \xe2\x80\x9cif an unmarried man who biologically causes conception through sexual relations without\nthe premeditated intent of birth is legally obligated to support a child, then the equivalent resulting\nbirth of a child caused by the deliberate conduct of artificial insemination should receive the same\ntreatment in the eyes of the law\xe2\x80\x9d (In re Parentage of M.J., 203 Ill 2d at 541, 787 NE2d at 152; see In re\nBaby Doe, 291 SC 389, 392-393, 353 SE2d 877, 878-879 [Sup Ct 1987] [\xe2\x80\x9ceven where husband\'s\nwritten consent is statutorily required, the failure to obtain written consent does not relieve (the)\nhusband of the responsibilities of parentage\xe2\x80\x9d]; see also R.S. v R.S., 9 Kan App 2d 39, 44, 670 P2d 923,\n928 [1983]).\nWe thus reject the husband\'s attempt to invoke noncompliance with Domestic Relations Law \xc2\xa7 73\nas a bar to a finding that he is, legally, the child\'s father. It is clear that the overriding purpose of the\nstatute is to give certainty to the legitimacy of those children conceived via AID whose parents\ncomplied with all of the statutory prerequisites, rather than to create a means of absolving\nindividuals of any responsibility toward a child, even if the proof could otherwise establish that the\nindividual participated in and consented to the decision to create the child (see Attorney General\'s\nMem in Support, Bill Jacket, L 1974, ch 303, at 3; Mem of Dept of Social Servs, Bill Jacket, L 1974,\nch 303, at 7; Letter from Dept of Health, Bill Jacket, L 1974, ch 303, at 8; see also In re Parentage of\nM.J., 203 Ill 2d at 534, 787 NE2d at 148).\nAccordingly, as the statute is neither applicable to nor determinative of the issue of paternity\npresented, we turn to the common law for an answer. To begin, \xe2\x80\x9cNew York has a strong policy in\nfavor of legitimacy\xe2\x80\x9d (Matter of Anonymous, 74 Misc 2d 99, 104 [1973]). Indeed, the presumption that a\nchild born to a marriage is the legitimate child of both parents \xe2\x80\x9c \xe2\x80\x98is one of the strongest and most\npersuasive known to the law\xe2\x80\x99 \xe2\x80\x9d (State of New York ex rel. H. v P., 90 AD2d 434, 437 [1982], quoting\nMatter of Findlay, 253 NY 1, 7 [1930]). Hence, our analysis begins with the rebuttable presumption\nthat the child, a child born to a married woman, is the legitimate child of both parties.\nPrior to the enactment of Domestic Relations Law \xc2\xa7 73, a Surrogate\'s Court held \xe2\x80\x9cthat a child born\nof consensual AID during a valid marriage is a legitimate child entitled to the rights and privileges of\na naturally conceived child of the same marriage\xe2\x80\x9d (Matter of Anonymous, 74 Misc 2d at 105). This\ncommon-law rule is shared by numerous jurisdictions which have held, even in the absence of\nstatutorily required written consent, that \xe2\x80\x9cthe best interests of children and society are served by\nrecognizing that parental responsibility may be imposed based on conduct evincing actual consent to\nthe artificial insemination procedure\xe2\x80\x9d (citations omitted).\nConsistent with our State\'s strong presumption of legitimacy, as well as the compelling public policy\nof protecting children conceived via AID, we follow the lead of other jurisdictions that impose a\nrebuttable presumption of consent by the husband of a woman who conceives by AID, shifting the\nburden to the husband to rebut the presumption by clear and convincing evidence (see e.g. In re Baby\nDoe, 291 SC at 391, 353 SE2d at 878; K. S. v G. S., 182 NJ Super 102, 109, 440 A2d 64, 68 [1981];\nPeople v. Sorensen, 68 Cal 2d 280, 283, 437 P2d 495, 497 [1968]; but see Jackson v. Jackson, 137 Ohio App\n3d 782, 795, 739 NE2d 1203, 1213 [2000] [burden on wife to prove consent by a preponderance of\nthe evidence]). Although our Legislature has provided an avenue to avoid factual disputes essentially\nby creating an irrebuttable presumption of legitimacy where the prerequisites of the statute are met\n(see Domestic Relations Law \xc2\xa7 73), the need for a rebuttable presumption also clearly exists,\nespecially so in light of the evidence that medical personnel who conduct AID procedures are not\nalways aware of statutory consent requirements (citations omitted).\n288\n\n\x0cTurning to the specific issue before us, our review of the record reveals that the facts necessary to\nresolve the matter were either undisputed, or have been fully litigated before Supreme Court,\nrendering it appropriate to apply the rule of law announced herein without a remittal for further\nhearings. It is not disputed that the husband was fully aware that his wife was utilizing AID to get\npregnant. Although he testified that he did not want a third child and that he had repeatedly told his\nwife that he did not think AID was \xe2\x80\x9ca good idea,\xe2\x80\x9d at least until the couple had completed some\ncounseling, he did not testify that he ever informed his wife that, should a child be born as a result\nof AID, he would not accept the child as his own. Indeed, he proffered no evidence that he took\nany steps before the AID was performed to demonstrate that he was not willing to be the child\'s\nfather. Under these circumstances, we find that the husband failed to rebut the presumption that he\nconsented to bringing a third child into the marriage through AID.\nEven if we did not apply the rebuttable presumption, and instead placed the burden on the wife and\nLaw Guardian to prove the husband\'s consent, we would find, as Supreme Court did, that the\nevidence demonstrates that the husband consented to the child\'s creation. The husband knew that\nhis wife planned to undergo the AID procedure and observed her picking out a donor based on\ncharacteristics which matched his own; he signed a \xe2\x80\x9cFrozen Donor Semen Specimen Agreement\xe2\x80\x9d\nwhich set forth the terms of purchase and delivery of the semen specimen; he faxed the donor\nagreement to the California-based sperm bank and paid for the specimen with a credit card; he\nstayed home to care for the other children to enable his wife to go to the doctor\'s office for\ninsemination; and, significantly, he acknowledged in his testimony that had the couple stayed\ntogether, he would have accepted the child as his own.\nThe husband\'s assertion that his wife forced him to sign the donor agreement by threatening to\nleave him is of no consequence. Just as an individual who agrees and proceeds to create a child by\nconventional methods in an attempt to salvage a troubled marriage is held responsible for the care\nof the resulting child, so too should an individual who acquiesces to his spouse\'s demands that a\nchild be conceived through AID be held responsible. Importantly, the separation agreement\nexecuted by both parties specifically states that \xe2\x80\x9cthe unborn child is not the biological child of the\nhusband, but was conceived through a mutually agreed upon course of artificial insemination\xe2\x80\x9d\n(emphasis added).\nThis evidence fully supports Supreme Court\'s conclusion that the husband consented to his wife\'s\ndecision to create the child and that he is, therefore, the child\'s legal father. Indeed, pursuing an\nalternative avenue, we reach the same result, finding that the foregoing facts of this case also warrant\napplication of the doctrine of equitable estoppel to preclude the husband from \xe2\x80\x9cseeking to disclaim\npaternity of the parties\' child, whose best interest is paramount\xe2\x80\x9d (citations omitted).\nFinally, we reject the husband\'s assertion that Supreme Court erred in granting a judgment of\ndivorce despite altering the terms of the parties\' separation agreement. The separation agreement\ncontains a severability clause which specifically provides for the present situation, stating that if any\nof its provisions \xe2\x80\x9cshould be held to be contrary to or invalid under the law . . . such invalidity shall\nnot affect in any way any other provision hereof.\xe2\x80\x9d Inasmuch as the agreed upon support obligation\nfor the two children included in the separation agreement is the amount reached by direct\napplication of the Child Support Standards Act (see Domestic Relations Law \xc2\xa7 240 [1-b]), altering the\npercentage to reflect the parties\' third child does not require a new hearing or undermine the other\nprovisions of the agreement. Under these circumstances, the divorce was properly granted (citations\n289\n\n\x0comitted).\nOrdered that the judgment is affirmed, without costs.\nNotes and Questions\n1. Some jurisdictions presumed that the man consented to the artificial insemination of his wife. As\na result of that presumption, the man is recognized as the legal father of the child. In a presumption\njurisdiction, which of the following situations should be enough to rebut the presumption?\n(a) The man tells his mistress that he does not want to have a child with his wife because he plans to\ndivorce her.\n(b) The man\xe2\x80\x99s religious beliefs prohibit him from participating in artificial insemination.\n(c) The man is biologically and physiologically capable of having children.\n(d) The man has lost his job and is suffering financially.\n(e) The man supplied sperm so his brother\xe2\x80\x99s wife could be artificially inseminated.\n6.4.1.4 Implied Consent\n\nIn re Baby Doe, 353 S.E.2d 877 (S.C. 1987)\nNESS, Chief Justice\nThis is an appeal from an order of the family court which held appellant husband responsible for the\nsupport of a child born to his wife as a result of artificial insemination. We affirm.\nHusband has four grown children from a prior marriage. He married his present wife in the early\n1970s and they attempted for several years to have a child. While living overseas, husband sought\nmedical advice and learned that he was no longer able to father children, apparently due to physical\ntrauma. Upon the parties\' return to this country, the diagnosis was confirmed. The parties visited a\ngynecologist in Myrtle Beach and discussed artificial insemination. With husband\'s knowledge, wife\nbegan undergoing artificial insemination in Myrtle Beach and Charleston. Husband assisted wife\nwith daily temperature readings to determine dates of fertility.\nWife conceived in February, 1983, and the parties separated shortly thereafter. The child was born in\nNovember, 1983, and husband was listed as father on the birth certificate.\nHusband brought this action in family court seeking a declaration that he was not the father of the\nchild. Wife counterclaimed seeking child support. The trial judge held there was a rebuttable\npresumption that any child conceived by artificial insemination during the course of the marriage has\nbeen conceived with the consent of the husband. The judge also held husband had expressly and\nimpliedly consented to the artificial insemination, and awarded child support to wife.\n290\n\n\x0cHusband argues implied consent to artificial insemination should not be sufficient to establish legal\nparentage of a child. He argues that in the absence of written consent, he cannot be declared the\nlegal father of a child conceived by artificial insemination during the marriage.\nArtificial insemination is the introduction of semen into the reproductive tract of a female by\nartificial means. There are two types of artificial insemination in common use: (1) artificial\ninsemination with the husband\'s sperm (homologous insemination), commonly referred to as A.I.H.;\nand (2) artificial insemination with the sperm of an anonymous third-party donor (heterologous\ninsemination), commonly referred to as A.I.D. (citations omitted). The legal entanglements of\ndetermining parental responsibility have arisen almost exclusively from the latter (citations omitted).\nThis new reproductive technology has created the potential for conflicting decisions regarding the\nstatus of the parties involved. With the exception of the earliest decisions on this issue, however,\nAmerican courts have been fairly uniform in their holdings. Almost exclusively, courts which have\naddressed this issue have assigned paternal responsibility to the husband based on conduct\nevidencing his consent to the artificial insemination. Cf., Byers v. Byers, 618 P.2d 930 (Okla.1980)\n[distinguishing birth by artificial insemination from husband\'s acceptance of child born from wife\'s\naffair with her paramour].\nWe hold that a husband who consents for his wife to conceive a child through artificial\ninsemination, with the understanding that the child will be treated as their own, is the legal father of\nthe child born as a result of the artificial insemination and will be charged with all the legal\nresponsibilities of paternity, including support (citations omitted).\nWe do not agree that husband\'s consent is effective only if obtained in writing. A number of\njurisdictions have adopted statutes regulating the use of artificial insemination and requiring written\nconsent of the parties or of the husband.76 However, even where husband\'s written consent is\nstatutorily required, the failure to obtain written consent does not relieve husband of the\nresponsibilities of parentage (citation omitted). Husband\'s consent to his wife\'s impregnation by\nartificial insemination may be express, or it may be implied from conduct which evidences\nknowledge of the procedure and failure to object.\nWe agree with the trial judge that husband\'s knowledge of and assistance in his wife\'s efforts to\nconceive through artificial insemination constitutes his consent to the procedure. The trial judge\'s\ndecision to declare husband the legal father of Baby Doe is affirmed.\n\nSee Uniform Parentage Act, Section 5: (a) If, under the supervision of a licensed physician and with the consent of her\nhusband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as\nif he were the natural father of a child thereby conceived. The husband\'s consent must be in writing and signed by him\nand his wife. The physician shall certify their signatures and the date of the insemination, and file the husband\'s consent\nwith the [State Department of Health], where it shall be kept confidential and in a sealed file. However, the physician\'s\nfailure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination,\nwhether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to\ninspection only upon order of the court for good cause shown. (b) The donor of semen provided to a licensed physician\nfor use in artificial insemination of a married woman other than the donor\'s wife is treated in law as if he were not the\nnatural father of a child thereby conceived.\n76\n\n291\n\n\x0cHusband\'s remaining exceptions are without merit and the trial judge\'s rulings on these issues are\naffirmed pursuant to Supreme Court Rule 23.\nAffirmed.\nNotes and Questions\n1. The UPA permits the husband to withdraw his consent to the artificial insemination of his wife.\nShould the man be permitted to withdraw his consent? At what stage of the process should the\nman\xe2\x80\x99s withdrawal of consent be effective to relieve him of his obligation to any resulting child?\n2. Should the withdrawal of consent have to be in writing?\n3. What are the pros and cons of permitting a man to withdraw his consent?\n4. Should the husband have the burden of proving that he withdrew his consent prior to the child\xe2\x80\x99s\nconception?\n5. Which of the following evidence should be sufficient to show withdrawal of consent?\n(a) Husband writes a letter to his wife stating that he is having second thoughts about raising a child\nconceived by artificial insemination using another man\xe2\x80\x99s sperm.\n(b) Husband joins an organization that is lobbying to have the use of assisted reproductive\ntechnology declared to be illegal.\n(c) During a heated argument, husband tells his wife that he does not want to have a child with her.\n(d) Husband refuses to pay for his wife to continue receiving artificial insemination, so she borrows\nmoney to continue with the process.\n6.4.2\n\nNonconsenting Husband is not the Legal Father\n\nMarriage of Witbeck-Wildhagen, 667 N.E.2d 122 (Ill. App. Ct. 1996)\nKNECHT, Justice.\nPetitioner, Marcia Witbeck-Wildhagen, filed a petition for dissolution of marriage on January 26,\n1994. One issue raised during the dissolution action was whether respondent, Eric Wildhagen, was\nthe legal father of a child conceived by artificial insemination and born during the marriage. The trial\ncourt determined respondent is not the legal father of the child because he did not consent to the\nartificial insemination of petitioner, as required by section 3 of the Illinois Parentage Act (Act) (750\nILCS 40/3 (West 1994)). Petitioner appeals and we affirm.\nPetitioner and respondent were married in November 1990. In April 1992, petitioner and\nrespondent consulted with a nurse clinician at Christie Clinic regarding the procedure of artificial\ninsemination. At the consultation, respondent made it clear to petitioner and the nurse he did not\n292\n\n\x0cwant to participate in, nor did he consent to, petitioner\'s attempts to become pregnant. Petitioner\nacknowledges at the consultation respondent expressed his desire not to participate in her attempt to\nhave a baby, but alleges respondent said it would be all right if she pursued the pregnancy alone.\nWhenever respondent had sexual relations with petitioner, he used a condom to prevent pregnancy.\nFollowing the initial consultation at Christie Clinic, petitioner underwent seven artificial\ninsemination procedures. Respondent was not informed of this by Christie Clinic or by petitioner.\nIn approximately October 1993, petitioner became pregnant. In January 1994, she filed a petition for\ndissolution of marriage. The petition stated no children were born during the marriage but petitioner\nwas pregnant. The complaint alleged petitioner did not have sufficient property and income to\nprovide for her reasonable needs or those of her unborn child. Petitioner sought custody of the\nunborn child and asked the court to order respondent to pay reasonable sums for her maintenance,\nsupport of the unborn child, and prenatal and delivery expenses.\nOn July 2, 1994, petitioner gave birth to a son, M.W. In September 1994, respondent filed a motion\nfor blood testing, which was allowed. Petitioner\'s attorney then notified respondent, in a letter dated\nSeptember 14, 1994, of the seven artificial insemination procedures, the last of which, the letter\nstated, may have resulted in the conception of M.W. The parties and M.W. underwent blood testing\nin November 1994. Respondent was conclusively excluded as M.W.\'s biological father.\nIn February 1995, petitioner filed a motion for summary determination of a major issue (motion for\nsummary determination) under section 2-1005(d) of the Illinois Code of Civil Procedure (735 ILCS\n5/2-1005(d) (West 1994)). In the motion, petitioner acknowledged respondent was not M.W.\'s\nbiological father and had not given his written consent to her artificial insemination. Nonetheless,\npetitioner asked the court to find respondent to be the legal father of M.W. within the meaning of\nthe Act (750 ILCS 40/3 (West 1994)). The court heard arguments on the motion for summary\ndetermination and determined, under its interpretation of section 3 of the Act, respondent is not the\nlegal father of M.W.\nFollowing this ruling, the parties executed a marital settlement agreement which reflected the court\'s\nearlier decision and in which they set forth their agreements on the remaining issues. On August 4,\n1995, the trial court entered a judgment of dissolution of marriage which incorporated the marital\nsettlement agreement, and entered a final order stating respondent is not the legal father of M.W.\nPetitioner filed a timely notice of appeal and asks this court to reverse the trial court\'s determination\nrespondent is not the legal father of M.W.\nThe issue presented is whether, under section 3 of the Act, the lack of written consent by\nrespondent to petitioner\'s artificial insemination precludes the establishment of a father-child\nrelationship and the imposition of a support obligation.\nSection 3(a) of the Act provides:\n\xe2\x80\x9c(a) If, under the supervision of a licensed physician and with the consent of her husband, a\nwife is inseminated artificially with semen donated by a man not her husband, the husband\nshall be treated in law as if he were the natural father of a child thereby conceived. The\nhusband\'s consent must be in writing executed and acknowledged by both the husband and\nwife. The physician who is to perform the technique shall certify their signatures and the\ndate of the insemination, and file the husband\'s consent in the medical record where it shall\n293\n\n\x0cbe kept confidential and held by the patient\'s physician. However, the physician\'s failure to\ndo so shall not affect the legal relationship between father and child. All papers and records\npertaining to the insemination, whether part of the permanent medical record held by the\nphysician or not, are subject to inspection only upon an order of the court for good cause\nshown.\xe2\x80\x9d (Emphasis added.) 750 ILCS 40/3(a) (West 1994).\nOnly one Illinois case has analyzed this provision of the Act. In In re Marriage of Adams, 174\nIll.App.3d 595, 610-11, 124 Ill.Dec. 184, 193, 528 N.E.2d 1075, 1084 (1988), rev\'d on other\ngrounds, 133 Ill.2d 437, 141 Ill. Dec. 448, 551 N.E.2d 635 (1990), the Second District Appellate\nCourt decided the failure to obtain the husband\'s written consent does not bar further inquiry into\nthe circumstances surrounding the decision to use the artificial insemination procedure. The court\nexamined the surrounding circumstances in the case and, although the husband had not executed a\nwritten consent to his wife\'s artificial insemination, agreed with the trial court\'s finding he had\nmanifested his consent by his conduct before, during, and after the pregnancy. Adams, 174\nIll.App.3d at 615, 124 Ill. Dec. at 196, 528 N.E.2d at 1087. The court concluded nothing in section 3\nbars the imposition of a support obligation on an estoppel or waiver theory where written consent is\nnot obtained. Thus, the court imposed a support obligation on the husband, who had manifested\nactual consent to the procedure by his conduct. In Adams the court found the husband consented to\nthe procedure. In this case respondent did not consent to the artificial insemination procedure,\neither in writing or in any other manner.\nAfter the appellate court decision in Adams, the Supreme Court of Illinois reviewed the case but,\nbecause it determined Florida law was controlling and remanded the case, the court did not render a\nconclusive interpretation of section 3 of the Act. In re Marriage of Adams, 133 Ill.2d 437, 141 Ill.\nDec. 448, 551 N.E.2d 635 (1990). In a cursory discussion of both section 3 of the Act and the\napplicable Florida statute, the court stated, \xe2\x80\x9cwe note that the provision in the Illinois statute that the\nhusband\'s consent * * * \xe2\x80\x98must be in writing\xe2\x80\x99 could be considered a mandatory requirement for\nestablishing a parent-child relationship pursuant to the statute.\xe2\x80\x9d (Emphasis added.) Adams, 133\nIll.2d at 444, 141 Ill. Dec. at 451, 551 N.E.2d at 638. The court went on to note:\n\xe2\x80\x9c[I]t is not clear whether under either statute the failure to provide written consent will\npreclude both the establishment of a parent-child relationship and the imposition of a\nsupport obligation. It may be the case that a support obligation will be found even in the\nabsence of a parent-child relationship.\xe2\x80\x9d (Emphasis added.) Adams, 133 Ill.2d at 445, 141 Ill.\nDec. at 451, 551 N.E.2d at 638.\nThe court in Adams was considering only the possible effects of the failure to obtain written\nconsent. It did not indicate the consent requirement could be waived entirely. Adams, 133 Ill.2d at\n444, 141 Ill. Dec. at 451, 551 N.E.2d at 638.\nPetitioner argues the language of the statute indicates respondent\'s written consent is not a\nprerequisite to the establishment of a father-child relationship. Her argument focuses on the\nfollowing language: \xe2\x80\x9cthe physician\'s failure to do so shall not affect the legal relationship between\nfather and child.\xe2\x80\x9d 750 ILCS 40/3(a) (West 1994). This language appears immediately after the\ndescription of the physician\'s duties of certifying the signatures of the husband and wife and the date\nof insemination and filing the husband\'s consent in the medical record. Petitioner contends,\nhowever, the quoted language means \xe2\x80\x9cthe physician\'s failure to obtain the consent shall not affect\nthe legal relationship between father and child.\xe2\x80\x9d (Emphasis added.) The plain language and\n294\n\n\x0cstructure of the statute does not lend itself to such a reading, nor do we believe this interpretation is\nwhat the legislature intended.\nThe first sentence of section 3 of the Act provides, \xe2\x80\x9c[i]f, under the supervision of a licensed\nphysician and with the consent of her husband, a wife is inseminated artificially with semen donated\nby a man not her husband, the husband shall be treated in law as if he were the natural\nfather.\xe2\x80\x9d (Emphasis added.) 750 ILCS 40/3(a) (West 1994). The Act then states, \xe2\x80\x9c[t]he husband\'s\nconsent must be in writing.\xe2\x80\x9d 750 ILCS 40/3(a) (West 1994). Following these statements is the\nexplanation of what the duties of the physician performing the procedure are in terms of\ndocumenting the husband\'s consent, and the statement which provides, \xe2\x80\x9cthe physician\'s failure to do\nso shall not affect the legal relationship between father and child.\xe2\x80\x9d (Emphasis added.) 750 ILCS\n40/3(a) (West 1994). This language refers to the physician\'s failure to certify and document the\nconsent in accordance with the statute and cannot be interpreted as obviating the consent\nrequirement.\nWe conclude the legislature intended a husband\'s written consent to be a prerequisite to the\nestablishment of the legal father-child relationship and the imposition of a support obligation. The\nseveral provisions in section 3 of the Act which address the consent requirement would be\nsuperfluous if the failure to obtain the husband\'s written consent would not affect the legal status of\nthe individuals involved.\nIn addition, because the statute requires the physician to certify the date of insemination, we\nconclude the husband\'s written consent is required each time his wife is to undergo the procedure.\n750 ILCS 40/3(a) (West 1994). Such a requirement is not burdensome and it leaves no room for\nconfusion on the part of the married couple or the physician regarding whether a consent previously\ngiven by the husband is still viable.\nOn the facts of this case, we need not decide whether the failure to obtain written consent would be\nan absolute bar to the establishment of a father-child relationship where the conduct of the father\notherwise demonstrated his consent to the artificial insemination procedure. Such a situation was\npresent in Adams and has also been addressed by commentators and the courts of other states.\n(citations omitted).\nHere, there is no evidence of consent by respondent to the artificial insemination procedure, written\nor otherwise. Petitioner filed for a dissolution of marriage within two or three months of becoming\npregnant. She was impregnated by the sperm of a man other than respondent, without respondent\'s\nknowledge or consent, and apparently without any intention of raising the child with respondent. In\nher brief, petitioner admits she underwent the procedure relying on her doctor\'s written assurance\nrespondent would be legally responsible for her child, even though it was not his wish she have a\nchild. There is no evidence in the record of any contact or interaction between respondent and\nM.W., and petitioner had M.W.\'s last name legally changed to her maiden name. Under the facts of\nthis case, there is no statutory or equitable basis for concluding a father-child relationship exists\nbetween respondent and M.W.\nPetitioner urges this court to impose a support obligation on respondent, even absent the existence\nof a father-child relationship, contending any other result would be contrary to public policy. The\ntwo primary policy considerations here are (1) M.W.\'s right to support, and (2) respondent\'s right to\nchoose not to be a parent.\n295\n\n\x0cJust as a woman has a constitutionally protected right not to bear a child (see Roe v. Wade, 410 U.S.\n113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)), a man has the right not to be deemed the parent of a\nchild that he played no part in conceiving. Respondent made a choice not to parent a child. This\nchoice was evidenced by not giving his consent to petitioner or any support to her choice to\nundergo artificial insemination. Petitioner underwent the procedure unbeknownst to respondent.\nRespondent was only informed of the manner in which M.W. was conceived after M.W. was born,\nby his attorney. This is not a case where respondent has changed his mind or is attempting to evade\nresponsibility for his own actions in helping to conceive or encouraging the conception of a child.\nThe facts of this case illustrate, and the trial court correctly determined, it would be inconsistent with\npublic policy to force upon respondent parental obligations which he declined to undertake.\nThe second policy consideration here is M.W.\'s right to support. The main purpose of the policy\nrecognizing a child\'s right to support is to prevent minors from becoming dependent on the State.\nFink v. Roller, 113 Ill.App.3d 1084, 1089, 69 Ill. Dec. 744, 747, 448 N.E.2d 204, 207 (1983). The trial\ncourt\'s order demonstrates it considered M.W.\'s need for support and found that support would be\nforthcoming from his mother. The child\'s right to support cannot be met by requiring a nonparent\nto fulfill the obligation of a parent. Respondent has no financial obligation to this child.\nIt is the duty of the court to ensure the rights of the child are adequately protected. In this case, the\ntrial court did so, and the balance it struck between the attendant interests of the parties was\nappropriate. It would be unjust to impose a support obligation on respondent where no father-child\nrelationship exists between him and M.W. and he did not consent to the artificial insemination\nprocedure. Accordingly, we affirm.\nAffirmed.\nNotes and Questions\n1. Should the best interests of the child outweigh the man\xe2\x80\x99s decision not to be a parent?\n2. If the child had been conceived by sexual intercourse, the outcome of the case may have been\ndifferent. The man had sexual relations with his wife and the child was conceived during the\nmarriage. Based upon the marital presumption, he would have been presumed to be the father of the\nchild. In some jurisdictions, the man would not have been permitted to rebut the presumption\nunless it was in the child\xe2\x80\x99s best interests to do so. It would not be in the child\xe2\x80\x99s best interests unless\nanother man was willing and able to parent the child. Is it fair that a child conceived by artificial\ninsemination is given less protection than a child conceived by natural insemination?\n3. In deciding whether to require the man to pay child support, should the court give more\nconsideration to the financial needs of the child?\n4. From a public policy perspective, is the Witbeck case wrongly decided? If the woman cannot\nfinancially support the child, the child will have to be taken care of by the government. Is that fair to\nthe tax payers if the man has the financial resources to provide for a child conceived during his\nmarriage?\n\n296\n\n\x0c6.5\n\nThe Paternity of the Sperm Donor\n\n6.5.1\n\nThe Sperm Donor is not the Legal Father\n\nLamaritata v. Lucas, 823 So. 2d 316 (Fla. Dist. Ct. App. 2002)\nBLUE, Chief Judge.\nAlthough the parties raise numerous issues on appeal and cross-appeal, this is a simple case that can\nbe resolved in a one-sentence opinion, to wit: Danny A. Lucas is a sperm donor, not a parent, and\nhas no parental rights; thus the court erred in establishing a visitation schedule. Unfortunately for\nthe parties, it does not appear that the attorneys ever seemed to understand this principle and thus\nassisted the trial court to the ruling we reverse. There has been protracted, unnecessary litigation in\nthis case, including a prior visit to this court which should have ended the controversy.\nIn 1998, on certiorari review of an order for paternity tests in a paternity action brought by Danny\nA. Lucas against Lori A. Lamaritata, this court issued a clear mandate for the trial court to determine\nthe applicability of the sperm donor statute and the validity of the parties\' contract before\nproceeding on any issues regarding the rights of Mr. Lucas vis-a-vis the children of Ms. Lamaritata.\nMr. Lucas had convinced the trial court to order paternity tests so that he might avoid the cost of\nlitigation if he was not actually the biological father of Ms. Lamaritata\'s children. Despite the dictates\nof this court\'s opinion, the parties returned to the trial court, stipulated to paternity testing, then\nlitigated issues regarding visitation, child support, and the best interests of the children. Because the\nparties and the trial court failed to heed this court\'s decision, they have suffered the exact harm they\nfeared by unnecessarily litigating issues that are not relevant to the core issue in this case.\nMs. Lamaritata appeals a supplemental final judgment that grants to Mr. Lucas (1) unsupervised,\novernight visitation on alternating weekends and visitation on the day after Christmas and on\nFather\'s Day; (2) telephone calls from the children when they are with their mother; and (3) the right\nto confer with the children\'s teachers and attend school events and activities. At the same time, the\nsupplemental final judgment held that Mr. Lucas was foreclosed from all parental rights except those\nset forth above and foreclosed from bringing the paternity action. The trial court also denied Ms.\nLamaritata\'s motion to escrow child support, which she sought to protect the children\'s right to\nsupport in the unlikely event Mr. Lucas was given parental rights. A brief statement of the pertinent\nfacts was set forth in this court\'s prior opinion.\nD.A.L. (donor) and L.A.L. (recipient) entered into a contract whereby the donor would provide\nsperm to recipient with the expectation that she would become pregnant through artificial\ninsemination and deliver offspring. The agreement provided that if childbirth resulted, the donor\nwould have no parental rights and obligations associated with the delivery, and both parties would\nbe foreclosed from establishing those rights and obligations by the institution of an action to\ndetermine the paternity of any such child or children. Notwithstanding the clear language of the\ncontract, after the recipient gave birth to twin boys the donor filed an action in circuit court seeking\nto establish paternity and an award of those rights associated with it. In defense of the action, the\nrecipient alleged that the contract barred such an action, that section 742.14, Florida Statutes (1997),\ndisallowed sperm donors any parental rights, and that the donor was not in fact the biological father\nof the children.\n297\n\n\x0cL.A.L. v. D.A.L., 714 So.2d 595, 596 (Fla. 2d DCA 1998). This court quashed the order for\npaternity testing and directed the circuit court to proceed in a manner consistent with this court\'s\nopinion.\nIn the opinion, after considering the express language of section 742.14, Florida Statutes (1997),77\nthis court held: \xe2\x80\x9cShould the trial court decide that this statute is constitutionally applicable to the\nfacts in the underlying litigation, the donor, whether or not he is scientifically determined to be the\nbiological parent of these boys, will be foreclosed from all parental rights, including his access to the\nchildren.\xe2\x80\x9d 714 So.2d at 596 (emphasis added). Likewise, after considering the express language of\nthe parties\' contract, this court held that \xe2\x80\x9cif the clear intent of the parties to this agreement is\nenforced by the trial court,\xe2\x80\x9d Mr. Lucas waived his right to institute a paternity proceeding. 714 So.2d\nat 597.\nIn an attempt to avoid application of the statute, Mr. Lucas now argues that he is not a sperm donor.\nSperm donor is not defined in the statute. The contract, however, calls Mr. Lucas \xe2\x80\x9cdonor\xe2\x80\x9d and\nindicates that sperm is the only donation required of him. Thus we easily conclude that Mr. Lucas\nqualifies as a sperm donor.\nWe just as easily reject Mr. Lucas\'s argument that he and Ms. Lamaritata constitute a\n\xe2\x80\x9ccommissioning couple.\xe2\x80\x9d Commissioning couple is defined in the statute as \xe2\x80\x9cthe intended mother\nand father of a child who will be conceived by means of assisted reproductive technology using the\neggs or sperm of at least one of the intended parents.\xe2\x80\x9d\xc2\xa7 742.13(2). There are no facts to show that\nMr. Lucas and Ms. Lamaritata have any type of relationship that would fall under the rubric of\n\xe2\x80\x9ccouple.\xe2\x80\x9d Further, they did not commission or contract to jointly raise the children as mother and\nfather. Rather, they joined forces solely for the purpose of artificially inseminating Ms. Lamaritata,\nan intent clearly set forth in the parties\' contract.\nA person who provides sperm for a woman to conceive a child by artificial insemination is not a\nparent. Both the contract between the parties and the Florida statute controlling these arrangements\nprovide that there are no parental rights or responsibilities resulting to the donor of sperm. See \xc2\xa7\n742.14. If the sperm donor has no parental rights, the sperm donor is a nonparent, a statutory\nstranger to the children.\nEven though the parties entered into subsequent stipulations, purportedly to give visitation rights to\nthis nonparent, we conclude that agreement is not enforceable. There are numerous Florida cases\nholding that nonparents are not entitled to visitation rights. See, e.g., O\'Dell v. O\'Dell, 629 So.2d 891,\n891 (Fla. 2d DCA 1993) (reversing visitation for a divorced man and his stepson, noting that \xe2\x80\x9c[t]his\ncourt has repeatedly reversed orders giving visitation rights to nonparents\xe2\x80\x9d); Kazmierazak v. Query,\n736 So.2d 106, 106 (Fla. 4th DCA 1999) (holding that \xe2\x80\x9cpsychological parent\xe2\x80\x9d was not entitled to\ncustody or visitation); Meeks v. Garner, 598 So.2d 261 (Fla. 1st DCA 1992); cf. Lonon v. Ferrell, 739\nSo.2d 650, 652 (Fla. 2d DCA 1999) (holding that biological grandparents were \xe2\x80\x9cstatutory strangers\xe2\x80\x9d\nto children following their adoption by stepfather; statute authorizing grandparent visitation violated\nSection 742.14 provides in pertinent part: \xe2\x80\x9cThe donor of any egg, sperm, or preembryo, other than the commissioning\ncouple or a father who has executed a preplanned adoption agreement under s. 63.212, shall relinquish all maternal or\npaternal rights and obligations with respect to the donation or the resulting children.\xe2\x80\x9d\n77\n\n298\n\n\x0cparent\'s constitutional right to privacy). Contracts purporting to grant visitation rights to nonparents\nare unenforceable. Taylor v. Kennedy, 649 So.2d 270, 271-72 (Fla. 5th DCA 1994) (\xe2\x80\x9cFlorida courts do\nnot recognize a claim for specific performance of a contract for visitation in favor of a nonparent.\xe2\x80\x9d). Therefore, pursuant to the contract\'s severability clause, we sever the unenforceable\nportion of the contract purporting to give visitation rights to Mr. Lucas.\nThe sperm donor here has no legal parental rights, and this case should have been dismissed after\nour prior opinion. Accordingly, we reverse the supplemental final judgment and remand to the trial\ncourt for the entry of a final judgment declaring that Mr. Lucas has no enforceable parental rights.\nReversed and remanded with directions.\nQuestions\n1. Should known sperm donors be treated differently from anonymous sperm donors? Why? Why\nnot?\n2. Should the sperm donor be treated as if he has no parental rights? Should the court recognize the\nsperm donor\xe2\x80\x99s parental rights and force him to waive them?\n3. If a single woman is inseminated with donor sperm, should the donor have a duty to support the\nchild if something happens to the woman when the child is under the age of majority? In order to\nprevent the child from becoming an orphan, should a single woman be required to appoint a\nguardian for the child prior to being artificially inseminated?\n6.5.2\n\nThe Sperm Donor May Be the Legal Father\n\nShultz v. Shultz, 923 A.2d 473 (Pa. Super Ct. 2007)\nKELLY, J.\nThese unconsolidated appeals lie from two orders, denying respectively Appellant\'s complaint,\nlodged in York County, for sole legal and primary physical custody of the parties\' four children, and\nher motion to join the biological father of two of the children in Dauphin County proceedings to\nresolve Appellee\'s complaint for child support. We affirm in part and vacate and remand in part, and\nhold that, in the circumstances of this case, the doctrine of equitable estoppel governs the financial\nobligation of a sperm donor to support children in whose lives he is involved.\nBeginning in 1996, the parties lived together in York County for approximately nine years, during\nwhich period they underwent a commitment ceremony in Pittsburgh, and entered into a civil union\nin Vermont. Of the children who are the subjects of these actions, two, A.J. and L.J., are nephews of\nAppellee\'s whom she has adopted. The remaining two, Co.J. and Ca.J., are Appellee\'s biological\nchildren by Appellee Carl Frampton, a long-time friend of Appellant\'s. At her instigation he agreed\nto act as sperm donor, and has been involved in the children\'s lives since their birth.\nIn February of 2006, after several months during which the parties continued to reside together\ndespite separation as a couple, Appellee relocated with the children from York County to Dauphin\n299\n\n\x0cCounty. Shortly after Appellee\'s departure, Appellant, naming both Appellee and Appellee Carl\nFrampton as defendants, sought full legal and physical custody of all four children in the York\nCounty Court. At the conclusion of a conciliation conference on March 20, legal and primary\nphysical custody of all the children were temporarily awarded to Appellee with partial physical\ncustody in Appellant. Although Appellant was awarded no legal custody rights, Appellee Frampton\nreceived shared legal and physical custody of Ca.J. and Co.J. Appellant\'s subsequent petition for\nspecial relief was denied on March 23. However, at some point soon thereafter, Appellee voluntarily\nrelinquished L.J. to Appellant\'s care, and began providing a stipend for his support.\nOn April 3, Appellee filed a complaint in Dauphin County seeking child support from Appellant for\nCa.J. and Co.J., and was awarded approximately $983 per month. Appellant appealed seeking de\nnovo review on the basis that Appellee Frampton was essentially a third parent to Co.J. and Ca.J.,\nand as such was obligated to contribute to their financial support. Although Appellant had failed to\nfile a formal joinder request prior to the support hearing, she was permitted to do so afterwards.\nFollowing the court\'s receipt of the formal request and Appellee\'s response, joinder was denied on\nJuly 31.\nThe custody litigation was resolved on the second day of a two day trial held on August 1 and 2,\nwhen the trial court, ruling from the bench, awarded shared legal custody of all four children to the\nparties. Appellant received primary physical custody of L.J. only, with partial physical custody as to\nhim in Appellee, who was awarded primary physical custody of the other three children, with partial\ncustody in Appellant. Appellee Frampton was awarded partial physical custody, one weekend a\nmonth, of Co.J. and Ca.J.\nAppellant has filed appeals from both the custody and support orders. Although presenting separate\nissues, the anomalous circumstances of these actions present basic and interrelated questions\nconcerning the parental rights and responsibilities both of Appellant and of Appellee Frampton\ngiven the parties\' recognition of her in loco parentis status, as well as his standing as a biological\nparent.\nIn her appeal from the support order, Appellant has ostensibly raised three claims concerning the\ncourt\'s denial of her joinder motion. Two of these are, in fact, aspects of the same contention, that\nAppellee Carl Frampton, having, as the biological father of Co.J. and Ca.J. a prima facie right to\ncustody, for the same reason also has the obligation to contribute to their support. That being so,\nthe trial court erred in denying the motion to join him as an indispensable party. As a coda to her\nprimary contention, Appellant argues that the biological mother\'s failure/unwillingness to pursue\nsupport claims against the biological father is irrelevant, and since all of the three persons involved\nin these matters have been awarded formal rights of custody, all three are obligated to provide\nsupport.\nOur standard and scope of review in child support cases is narrow. We will not disturb a child\nsupport order absent an abuse of discretion. An abuse of discretion occurs if insufficient evidence\nexists to sustain a support award, if the trial court overrides or misapplies existing law, or if the\njudgment exercised by the trial court is manifestly unreasonable. L.S.K. v. H.A.N., 813 A.2d 872, 876\n(Pa.Super.2002) (citations and quotation marks omitted).\n\xe2\x80\x9cAn indispensable party is one whose rights or interests are so pervasively connected with the claims\nof the litigants that no relief can be granted without infringing on those rights or interests.\xe2\x80\x9d Hubert v.\n300\n\n\x0cGreenwald, 743 A.2d 977, 979 (Pa.Super.1999), appeal denied, 563 Pa. 688, 760 A.2d 854 (Pa.2000).\nThe basic inquiry in determining indispensability concerns whether, in the absence of the person\nsought to be joined, justice can be done. Id. at 980. Analysis of this claim requires reference to both\nthe nature of the claim and the requested remedy. Id.\nIn finding that because Appellee Frampton is not obligated to provide child support he is thus not\nindispensable, the trial court relies on two case authorities. The first, L.S.K., supra, explores the\nfinancial responsibility of a lesbian partner in a long term relationship where a sperm donor, in that\ncase anonymous, fathered a child to the other partner. Support was not sought from the biological\nfather, who had relinquished all parental rights.\nThe Court found that the biological mother was owed support by her partner, who had exercised\ncustodial rights on the basis of her in loco parentis status. The duty, however, was not to be derived\nfrom the Domestic Relations Code, 23 Pa. C.S.A. \xc2\xa7 4321(2), governing liability for support of minor\nchildren. Rather, the obligation stemmed from principles of equitable estoppel, which \xe2\x80\x9capplies to\nprevent a party from assuming a position or asserting a right to another\'s disadvantage inconsistent\nwith a position previously taken.\xe2\x80\x9d L.S.K., supra at 877 (citations and quotation marks omitted).\nReduced to its essence, the doctrine is one of \xe2\x80\x9cfundamental fairness, designed to preclude a party\nfrom depriving another of a reasonable expectation when the party inducing the expectation albeit\ngratuitously knew or should have known that the other would rely on that conduct to his\ndetriment.\xe2\x80\x9d Id. Thus the trial court in this case held that Appellant, having \xe2\x80\x9casserted custodial rights\nin relation to [the children], is [ ] obligated under an equitable theory to provide for their\nsupport.\xe2\x80\x9d(Trial Ct. Op., 11/21/06, at 6).\nIn two basic respects, this case differs from L.S.K.: first, Appellant does not deny her own\nresponsibility to support the children; rather, her focus is on the omission of any similar obligation\nassigned to Appellee Frampton, who, if he has not \xe2\x80\x9casserted custodial rights\xe2\x80\x9d by petitioning for\nthem, has sought them informally, and has in no way declined the award of custody. However,\nL.S.K. provides a matrix in which the critical question in this case arises: if fundamental fairness\nprevents Appellant, identified by law as a third party, from avoiding a support obligation arising\nfrom her status as a de facto parent, and she does not, in any event, attempt such an avoidance, does\nnot the same principle operate similarly to estop Appellee Frampton, automatically recognized as the\npossessor of parental rights based on his biological parenthood, from disclaiming financial\nresponsibility? We find that it does. His obligation is, in fact, statutorily imposed as \xe2\x80\x9c[p]arents are\nliable for the support of their children who are unemancipated and 18 years of age or younger.\xe2\x80\x9d 23\nPa. C.S.A. \xc2\xa7 4321(2). As the Court in L.S.K., supra at 877, has opined, stepparents who have held a\nchild out as their own are liable for support; biological parents who have exercised the rights\nappurtenant to that status can be no less bound. Thus the trial court\'s conclusion that Appellant\'s\nobligation is established by L.S.K. is not incorrect, only incomplete.\nFurther, Appellee Frampton has himself anticipated his obligation by providing support to Co.J. and\nCa.J. since their births, having contributed \xe2\x80\x9cin excess of $13,000\xe2\x80\x9d in the last four years, (N.T.,\n8/2/06, at 217), $3,000 of it during the six months preceding the custody trial (Id. at 222); and\nhaving borrowed money to provide the parties with a vehicle suited to transporting the children.\n(Id.). While these contributions have been voluntary, they evidence a settled intention to\ndemonstrate parental involvement far beyond the merely biological. Further, in addition to having\nbeen awarded partial custody, Appellee was present at the birth of Co.J. (id. at 20); has expressed an\ninterest in relocating closer to the children\'s home to facilitate both his court ordered monthly partial\n301\n\n\x0ccustody and further contact, which, in fact, already occurs (id. at 235, 216); and has encouraged the\nchildren to call him \xe2\x80\x9cPapa.\xe2\x80\x9d (Id. at 216). If Appellee expresses a need for funds or household items,\nhe supplies them (id. at 222), as well as clothing and toys for the children. (Id. at 223). Such constant\nand attentive solicitude seems widely at variance with the support court\'s characterization of\nAppellee Frampton\'s having \xe2\x80\x9cplayed a minimal role in raising and supporting\xe2\x80\x9d the children. (Trial\nCt. Op., 11/21/06, at 2). We find that under such circumstances, the principle which serves to\nconfirm Appellant\'s obligation operates in the same manner as to Appellee Frampton\'s.\nTo address the latter, the trial court finds relevant this Court\'s decision in Ferguson v. McKiernan, 855\nA.2d 121 (Pa.Super.2004). There the biological mother sought child support from the biological\nfather, her co-worker and former lover, despite having assured him on several occasions that he\nwould have no parental status or obligation. Although recognizing the mother\'s reprehensible\nconduct toward the biological father, as well as toward her husband, who filed for divorce on the\nsame day artificial insemination was performed, the Court found a duty of support to be owed by\nthe biological father on grounds that the parties could not bargain away the right of support which\naccrued not to them but to the children.\nThe trial court here, which seems erroneously to regard Appellant\'s desire to join Appellee\nFrampton as an attempt to escape financial liability altogether, found that appearances\nnotwithstanding, Ferguson does not support Appellant\'s position, as she was already liable for\nsupport under the ruling in L.S.K. The court also attempted to distinguish Ferguson on several\nbases: specifically, the biological mother there was in the process of divorce and had once been\nromantically attached to the sperm donor, while the children here were born into an intact family to\npersons who intended to cooperate in rearing them.\nThe distinctions drawn by the trial court to support its theory of inapplicability seem less persuasive\nthan distinctions which tend in the opposite direction. Contrary to the trial court\'s assertion that\nAppellee Frampton, \xe2\x80\x9clike the sperm donor in Ferguson who also did not assert or seek parental\nrights,\xe2\x80\x9d (Trial Ct. Op., 11/21/06, at 6) (emphasis added), rather than remaining detached from the\nchildren, he became, voluntarily, indeed, enthusiastically, an integral part of their lives. Most\npertinently, the court found that Appellee Frampton made no agreement as to the children\'s support\nas there was no need for him to do so-two parents were already available to provide the support.\nThis last point is in fact the crux of the court\'s rationale: \xe2\x80\x9cto hold [Appellee] Frampton liable for\nsupport would create a situation in which three parties/parents would be liable for support.\xe2\x80\x9d (Trial\nCt. Op. at 7). In the trial court\'s view the interjection of a third person in the traditional support\nscenario would create an untenable situation, never having been anticipated by Pennsylvania law. We\nare not convinced that the calculus of support arrangements cannot be reformulated, for instance,\napplying to the guidelines amount set for Appellant fractional shares to incorporate the contribution\nof anther obligee. As the Court in L.S.K., supra, has held, in another anomalous situation:\nWe recognize this is a matter which is better addressed by the legislature rather than the courts.\nHowever, in the absence of legislative mandates, the courts must construct a fair, workable and\nresponsible basis for the protection of children, aside from whatever rights the adults may have vis a\nvis each other. Id. at 878.\nAccordingly, we affirm the award of custody, vacate the award of support, and remand to the trial\ncourt with directions that Appellee Frampton be joined as an indispensable party for a hearing at\nwhich the support obligation of each litigant is to be recalculated.\n302\n\n\x0cCustody order affirmed. Support order vacated and case remanded with instructions. Jurisdiction is\nrelinquished.\nSample Statutes\nGa. Code Ann., \xc2\xa7 53-2-5 Rights of inheritance of and from individual conceived by artificial\ninsemination\nAn individual conceived by artificial insemination and presumed legitimate in accordance with Code\nSection 19-7-21 shall be considered a child of the parents and entitled to inherit under the laws of\nintestacy from the parents and from relatives of the parents, and the parents and relatives of the\nparents shall likewise be entitled to inherit as heirs from and through such individual.\nC.G.S.A. \xc2\xa7 45a-777 (Connecticut)Inheritance by child conceived as a result of A.I.D\n(a) A child born as a result of A.I.D. may inherit the estate of his mother and her consenting spouse\nor their relatives as though he were the natural child of the mother and consenting spouse and he\nshall not inherit the estate from his natural father or his relatives.\n(b) The mother and her consenting husband or their relatives may inherit the estate of a child born\nas a result of A.I.D., if the child dies intestate, and the natural father or his relatives shall not inherit\nfrom him.\nC.G.S.A. \xc2\xa7 45a-778 (Connecticut)Words of inheritance to apply to child conceived through\nA.I.D\n(a) The words "child", "children", "issue", "descendant", "descendants", "heir", "heirs", "unlawful\nheirs", "grandchild" and "grandchildren", when used in any will or trust instrument, shall, unless the\ndocument clearly indicates a contrary intention, include children born as a result of A.I.D.\nA.C.A. \xc2\xa7 28-9-209 (Arkansas) Children as legitimate\n(c) Any child conceived following artificial insemination of a married woman with the consent of her\nhusband shall be treated as their child for all purposes of intestate succession. Consent of the\nhusband is presumed unless the contrary is shown by clear and convincing evidence.\nClass Discussion Tools\n1. Pedro and Sandra got married. Afterwards Pedro decided that he did not want to have children,\nso he had a vasectomy performed on him. Sandra threatened to file for divorce if Pedro did not\nagree to help her have a child. Pedro admitted to Sandra that he did not want children because he\nwas afraid that any child he conceived would inherit his genetic disorder. To keep the peace, Pedro\naccompanied Sandra to the fertility clinic. Pedro helped select a sperm donor that had features\nsimilar to his. In preparation for the pregnancy, Sandra quit her job. Pedro drove Sandra to all of\nher medical appointments before and after the conception of the child. After the child was born,\nPedro realized that he did not want to raise another man\xe2\x80\x99s child. He shared his concerns with\n303\n\n\x0cSandra. As a consequence, Sandra filed for divorce. While the divorce was pending, Pedro was\nkilled in a car accident. If Pedro died intestate in the state of Connecticut, would the child be\neligible to inherit from his estate? What would be the result if Pedro died in the state of Arkansas?\n2. Paul and his wife Maggie decided that they wanted to conceive a child using artificial\ninsemination. Paul\xe2\x80\x99s sperm count was low, so they had to use donor sperm. They went to the New\nLove Fertility Clinic. Paul wrote a $5,000 check to the fertility clinic from his checking account. In\nthe memorandum section of the check, Paul wrote, \xe2\x80\x9cto finance the creation of a child I will raise\nwith my wife, Maggie.\xe2\x80\x9d Maggie started receiving treatment a few days after the clinic cashed Paul\xe2\x80\x99s\ncheck. Prior to the conception of a child, Paul and Maggie had a fight. In response, Paul sent\nMaggie a text message stating that he no longer wanted to raise a child with her. It is unclear\nwhether or not Maggie received the message. Nonetheless, Maggie continued treatments and\nconceived a child through the use of artificial insemination. Paul does not want to take any\nresponsibility for the child. If the jurisdiction has the following statute, is Paul the legal father of the\nchild? \xe2\x80\x9cA man who provides sperm for, or consents to, assisted reproduction by a woman with the\nintent to be the parent of her child, is a parent of the resulting child.\xe2\x80\x9d\n6.6\n\nChildren Conceived Through Surrogacy Arrangements\n\nIn the previous two sections of this chapter, the focus has been on paternity. This section is\nunique in that it tackles the issue of the legal status of the women involved in a surrogacy\narrangement. The cases presented in this section deal with the right of a child created as the result\nof a surrogacy arrangement to inherit from his or her mother. As previously indicated, the child\xe2\x80\x99s\nright to inherit is determined by the existence of a parent-child relationship. In the case of children\nconceived as a result of surrogate agreements, the inheritance rights of those children is based upon\nthe recognition of the mother-child relationship. The main issue becomes: Who is the legal mother\nof a child resulting from a surrogacy arrangement\xe2\x80\x94the surrogate or the contracting woman.\n6.6.1\n\nThe Possibility of Inheriting From the Woman\n\nIn order for a child created as the result of a surrogacy arrangement to have the opportunity\nto inherit from a woman, that woman must be deemed to be the child\xe2\x80\x99s legal mother. In some\ncases, that woman may be the woman acting as the surrogate. In other cases, that woman may be\nthe woman who contracted to have the child created. Courts have adopted several different tests to\ndetermine the identity of the legal mother of a child conceived as the result of a surrogacy\narrangement. These tests are illustrated in the next few cases.\n6.6.1.1 The Genetics/Blood Test\n\nBelsito v. Clark, et al., 644 N.E. 2d 760 (C.P. Ct. Oh. 1994)\nSPICER, Judge.\nFindings of Fact\nPlaintiffs, Anthony and Shelly Belsito, were married September 26, 1992. They decided they wanted\n304\n\n\x0ca large family. Unfortunately, approximately one month prior to their marriage, Shelly had to\nundergo a hysterectomy as a result of recently discovered cervical cancer. Her physician had to\nremove her uterus, but was able to save her ovaries so that she could continue to produce eggs.\nCarol S. Clark is Shelly\'s younger sister. Around the same time as Shelly\'s hysterectomy, Carol gave\nbirth to her third child. Carol knew how much having a family meant to Shelly and Tony so, at that\ntime, Carol told Shelly that, if she could, she would carry Shelly and Tony\'s baby for them.\nIn October 1993, Shelly and Tony were accepted into the University Hospitals\' program for in vitro\nfertilization, Shelly and Tony as the genetic parents and Carol as the surrogate host. Carol was to\nreceive no compensation for her role as a surrogate for Shelly and Tony\'s baby. Carol testified that\nshe planned to be no more than an aunt to the child.\nDr. Leon Sheean is the Director of the Laboratories for In Vitro Fertilization and Andrology at\nUniversity Hospitals of Cleveland, MacDonald Hospital for Women (\xe2\x80\x9cMacDonald Hospital\xe2\x80\x9d). Since\nhe became the director in January 1990, Dr. Sheean has overseen all in vitro fertilization and\nandrology procedures in the laboratory, has established the policies in place at the hospital, and has\nbeen responsible for maintaining records of the events and patients that are treated within the\nprogram.\nDr. Sheean testified as to the policies, procedures, and routines followed at MacDonald Hospital in\nreference to the in vitro fertilization program. Dr. Sheean testified in great detail as to the\nprocedures involved, and the methods of quality control used to ensure that the fetus is the result of\nthe genetic parents and that it is placed in the proper surrogate, resulting in \xe2\x80\x9cone-hundred percent\ncertainty\xe2\x80\x9d that the child is the biological and genetic child of the infertile couple.\nPursuant to the policies of the in vitro fertilization program, there are several checks and balances to\nensure the propriety of the eggs and the sperm. First, the frequent visits to the hospital during the\nevaluation and the treatment stages allow the staff at the lab to establish a conversive relationship\nwith the parties, and to identify them by sight. Second, all the containers used in the process are\nclearly labeled prior to the cells\' being placed into the container. The petri dishes are labeled and\ncolor-coded with a color that is unique to that patient.\nAll the foregoing procedures were followed in the Belsito case. In addition, Shelly, Tony, and Carol\nsigned separate consent forms to participate in the program. Within these documents, the parties\nconsented to their status within the program. The consent form signed by Carol Clark described her\nas a \xe2\x80\x9ccarrier.\xe2\x80\x9d The consent form signed by Shelly and Tony designated them as the \xe2\x80\x9cmother\xe2\x80\x9d and\n\xe2\x80\x9cfather\xe2\x80\x9d of the child.\nIn approximately January 1994, Shelly and Carol began the process of preparing for the procedure.\nPrior to the planned embryo transfer, Shelly and Carol began taking various medications to align\ntheir fertility cycles and prepare their bodies for the procedure. In addition, Carol testified that she\nabstained from sexual intercourse for at least two months prior to the procedure and at least two\nweeks after the procedure.\nOn February 10, 1994, Shelly Belsito was admitted to MacDonald Hospital for the retrieval of the\neggs from her ovaries. A total of ten eggs was recovered from Shelly. Tony\'s sperm was collected in\na labeled container, washed, and added to the eggs. On February 12, 1994, Carol Clark was admitted\n305\n\n\x0cto MacDonald Hospital for transfer of the embryos into her uterus. The two fertilized eggs were\ntransferred into Carol\'s uterus by her physician. Shelly was also present at the transfer.\nApproximately two weeks after the transfer, the parties went to the hospital for a pregnancy test. At\nthat time, it was confirmed that one of the two embryos did attach. Carol was carrying Shelly and\nTony\'s child.\nAccording to expert testimony of Dr. Sheean, the fetus placed in the carrier sets up an entirely\nseparate system from the carrier. The uterus provides only a means of nourishment to and a means\nof carrying waste away from the baby\'s system. The uterus provides a \xe2\x80\x9cfiltering system\xe2\x80\x9d for the\nchild. Blood between the carrier and the fetus is not exchanged during the pregnancy, absent some\ncomplication. According to the opinion of Dr. Sheean, there would be no genetic or blood tie to the\nsurrogate host.\nDr. Sheean expressed his opinion that the unborn child carried by Carol Clark was genetically the\nchild of Anthony and Shelly Belsito, and that Carol Clark as a surrogate would contribute none of\nthe DNA that would ultimately make up the genetics of the unborn child.\nThe parties knew that the baby was a boy, and planned on naming him Nicholas Anthony Belsito.\nThe original due date for the child was calculated to be November 14, 1994. However, Carol was\nscheduled to undergo a Caesarean section on October 12, 1994, at Akron City Hospital. Shelly and\nTony planned on being at Nicholas\'s birth. Shelly was also planning to nurse Nicholas.\nIn preparing for Nicholas\'s birth, Shelly spoke with Akron City Hospital regarding the birth\ncertificate. She was told that, according to Ohio law, the woman who gave birth to the child will be\nlisted on the birth certificate as the child\'s mother. Further, she was told that because Carol, the\nsurrogate, and Tony, the genetic and biological father, are not married, the child will be considered\nillegitimate, and will be listed on his birth records as \xe2\x80\x9cBaby Boy Clark\xe2\x80\x9d and not as \xe2\x80\x9cBaby Boy\nBelsito.\xe2\x80\x9d\nAs a result of that information, Anthony and Shelly Belsito filed a complaint for declaratory\njudgment with the court on September 14, 1994. A hearing was held on September 27, 1994. From\nthat declaratory judgment and the hearing, the Belsitos have requested this court to declare that it is\nunnecessary for them to adopt the child now carried by Carol Clark. They contend that they are the\ngenetic and natural parents of that child and are therefore entitled to be recognized as having the\nlegal status of parents. In addition, they have requested that the court order the preparer of the birth\ncertificate to reflect the legitimate status of the child and the Belsitos\' status as the legal and natural\nparents of the child.\nConclusions of Law\nThe central question of the declaratory judgment action before the court is, who is to assume the\nlegal status of natural parents of the unborn child carried by Carol S. Clark?\nUnder the foregoing findings of fact, the court must conclude that Carol S. Clark is the gestational\nsurrogate, and the genetic makeup of the child she carries has been determined by the egg and the\nsperm of Shelly Belsito and Anthony Belsito. The court is of the opinion that the law requires that,\nbecause Shelly Belsito and Anthony Belsito provided the child with its genetics, they must be\ndesignated as the legal and natural parents.\n306\n\n\x0cThe analysis and law in support of that conclusion begin with the proposition that the law will\nimpose the duties of a child-parent relationship and legal status of natural parents only upon those\nindividuals who can be found to be a natural or adoptive parent. State v. Barger (1920), 14 Ohio App.\n127, 129; Angel v. Angel (C.P.1956), 74 Ohio Law Abs. 531, 533-534, 2 O.O.2d 136, 137, 140 N.E.2d\n86, 87. See, also, Burlington Cty. Welfare v. McClain (1983), 189 N.J.Super. 152, 458 A.2d 1348; Brummitt\nv. Kentucky (Ky.App.1962), 357 S.W.2d 37.\nSince plaintiffs, Anthony Belsito and Shelly Belsito, have alleged that they are the natural parents and\nnot subject to the adoption laws of this state, the analysis of the law must be confined to the\nquestion of what constitutes or identifies a \xe2\x80\x9cnatural parent.\xe2\x80\x9d\nWhile various terms are used to identify a natural parent, a review of case law leads to the conclusion\nthat \xe2\x80\x9cnatural parent\xe2\x80\x9d refers to the child and parent being of the same blood or related by blood.\nOwens v. Bell (1983), 6 Ohio St.3d 46, 48, 6 OBR 65, 67-68, 451 N.E.2d 241, 243; R.C. 2317.47; R.C.\n3111.09. Black\'s Law Dictionary defines \xe2\x80\x9cblood relations\xe2\x80\x9d as: \xe2\x80\x9cKindred; consanguinity; family\nrelationship; relation by descent from a common blood ancestor. A person may be said to be \xe2\x80\x98of the\nblood\xe2\x80\x99 of another who has any, however small a portion, of the blood derived from a common\nancestor * * *.\xe2\x80\x9d Black\'s Law Dictionary (6 Ed.Rev.1990) 172.\nIn modern terminology, blood relationship would be described as shared DNA or genetics. Support\nfor the contention that genetic relationship is the modern equivalent of the term \xe2\x80\x9cblood\nrelationship\xe2\x80\x9d can be found in the evidentiary practice in disputed parentage cases of comparing\ncommon biological characteristics. The practice involves the trier of fact\'s comparing genetic traits\nof the child and the alleged parent, such as facial features, build, and color of hair and eyes, to\nconfirm or rebut a blood relationship. Domigan v. Gillette (1984), 17 Ohio App.3d 228, 17 OBR 494,\n479 N.E.2d 291, paragraph two of the syllabus. Further support may be found in the fact that\ncomparison of the blood of both parent and child for a genetic or DNA resemblance has become a\nrecognized means of establishing parentage. See R.C. 3111.09.\nHistorically and at common law, blood relation was the primary means of establishing the legal\nstatus of a natural parent. 1 Blackstone, Commentaries on the Laws of England (7 Ed.1775),\nChapter XVI, Of Parent and Child. Under today\'s laws of parentage, a genetic relationship and\nblood relationship of the correct degree describe and result in the same legal status or relationship,\nand proof of either is still the primary means of establishing parentage.\nHowever, in cases involving a maternity dispute, the female who gave birth to a child is considered\nthe natural parent. See Burlington Cty. Welfare v. McClain (1983), 189 N.J.Super. 152, 458 A.2d\n1348. The rationale behind that rule of substantive law is that for millennia, giving birth was\nsynonymous with providing the genetic makeup of the child that was born. Birth and\nblood/genetics were one.\nBlood/genetics and birth, the two ways that the law has historically used to identify the natural\nparent, are recognized and codified in R.C. Chapter 3111, Ohio\'s adoption of the Uniform Parentage\nAct. Under that Act, maternity can be established by identifying the natural mother through the\nbirth process or by other means, including DNA blood tests. R.C. 3111.02.\nIn most disputed cases, those two ways of identifying natural parents are still valid and reliable. In a\n307\n\n\x0csmall but growing number of cases, however, they can result in confusing and questionable\ndeterminations of parentage. The reason for that confusion is modern science and medicine\'s ability\nto manipulate the conception and delivery process of a child. By successfully implanting an embryo\ninto the uterus of a female who has become known as the \xe2\x80\x9cgestational surrogate\xe2\x80\x9d or \xe2\x80\x9csurrogate\nhost,\xe2\x80\x9d modern medicine has devised a way of separating birth from genetics. The introduction of in\nvitro fertilization means that the female who bears the child may not be the person who provides\nthe genetic imprint for the child\'s development.\nThat is the fact pattern of this case. Shelly Belsito has provided the genetics, that is, the egg, which\nwill determine the child\'s genetics. Shelly\'s sister, Carol, is the person who will carry and give birth to\nthe child. Under R.C. Chapter 3111, and the cases upon which it is based, both would be considered\nthe mother of the delivered child: Carol, because she gave birth, and Shelly, because she provided\nthe genetic makeup or imprint.\nSurrogacy technology did not exist and a separate birth and genetic mother were factually impossible\nwhen the statute, case law, and common law were formulated. It must therefore be assumed that the\nframers of those laws did not intend for the law to result in two mothers. In re Marriage of Moschetta\n(1994), 25 Cal.App.4th 1218, 30 Cal.Rptr.2d 893. This conclusion is buttressed by the fact that the\nUniform Parentage Act was intended to address solely the question of legitimacy of a child and not\nsurrogacy. Notes, Uniform Parentage Act. In addition, society and the law recognize only one\nnatural mother and father. Michael H. v. Gerald D. (1989), 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d\n91.\nIt is apparent that the law must adapt and change to end the confusion caused by surrogacy. The\nquestion is, how will it adapt? Will the genetic test, or the birth test, or some other means be used to\nidentify those individuals who will be classified as having the legal status of natural mother in cases\nsuch as this one in which the surrogate has not provided the genetic imprint for the child?\nThe fact pattern of this case is one of first impression for Ohio courts, and would be for most\njurisdictions in the United States. However, several courts have addressed questions involving\nsurrogacy. In the Matter of Baby M. (1988), 109 N.J. 396, 537 A.2d 1227; In re Marriage of Moschetta,\nsupra; Seymour v. Stotski (1992), 82 Ohio App.3d 87, 611 N.E.2d 454; Yates v. Keane (1990), 184\nMich.App. 80, 457 N.W.2d 693, appeal denied (1991), 437 Mich. 986, 470 N.W.2d 372. Two courts\nhave decided cases similar to the case before this court. Johnson v. Calvert (1993), 5 Cal.4th 84, 19\nCal.Rptr.2d 494, 851 P.2d 776, certiorari denied (1993), 510 U.S. 874, 114 S.Ct. 206, 126 L.Ed.2d\n163; McDonald v. McDonald (1994), 196 A.D.2d 7, 608 N.Y.S.2d 477.\nIn Johnson v. Calvert, the facts are very similar to this case, with a married couple supplying the egg\nand sperm and a surrogate agreeing to carry and deliver the child. The difference is that the\nsurrogate in Johnson was not related to the genetic providers, and was to be compensated for the\nsurrogacy. A dispute arose over the compensation, and the surrogate claimed to be the parent. The\nCalifornia Supreme Court recognized the genetic providers as the natural parents. That ruling\nappears to be based on intent of the parties:\n\xe2\x80\x9cWe conclude that although the Act [the Uniform Parentage Act] recognizes both genetic\nconsanguinity and giving birth as a means of establishing a mother and child relationship, when the\ntwo means do not coincide in one woman, she who intended to procreate the child-that is, she who\nintended to bring about the birth of a child that she intended to raise as her own-is the natural\n308\n\n\x0cmother under California law.\xe2\x80\x9d Johnson, 5 Cal.4th at 94, 19 Cal.Rptr.2d at 500, 851 P.2d at 782.\nThe court in Johnson looked for the intent to procreate and to raise the child, in order to identify the\nnatural mother. Since the genetic mother in Johnson intended to procreate, she was the natural parent.\nThe Johnson court discarded both genetics and birth as the primary means of identifying the natural\nmaternal parent, and replaced both with a test that involves intent of the parties.\nIn a somewhat similar case, a New York court of appeals determined the gestational surrogate to be\nthe natural mother based on the Johnson precedent of intent to procreate. McDonald v. McDonald\n(1994), 196 A.D.2d 7, 608 N.Y.S.2d 477. (In McDonald, the gestational surrogate received the egg\nfrom an anonymous donor; her husband provided the sperm.) Under the Johnson test, either the\ngestational surrogate or the genetic parents could be recognized as the natural and legal parents,\ndepending on which party intended to procreate and raise the child.\nSince both cases emanate from outside the appellate jurisdiction that binds this court, they can only\nbe considered as persuasive and not binding. In light of Ohio law, this court finds neither case to be\npersuasive, for the following three important reasons: (1) the difficulty in applying the Johnson intent\ntest; (2) public policy; and (3) Johnson\'s failure to recognize and emphasize the genetic provider\'s\nright to consent to procreation and to surrender potential parental rights.\nIntent can be difficult to prove. Even when the parties have a written agreement, disagreements as\nto intent can arise. In addition, in certain fact patterns when intent is clear, the Johnson test of intent\nto procreate and raise the child may bring about unacceptable results. As an example, who is the\nnatural parent if both a nongenetic-providing surrogate and the female genetic provider agree that\nthey both intend to procreate and raise the child? It is apparent that the Johnson test presents\nproblems when applied.\nNonetheless, ease of application should not be the central focus in structuring the law of surrogacy.\nThe focus of parentage determination should be based on public policy. Davis v. Davis (Tenn.1992),\n842 S.W.2d 588, 591. Surrogacy questions, such as this court has before it, involve questions of\nprocreation and parentage. Those two subjects involve values that are basic to our society.\nTherefore, any new configuration of the law in those areas must be reconcilable with the values as\nare expressed in enunciated public policy of present law. The Johnson intent test fails to support, or is\nin conflict with, two areas of enunciated public policy.\nThe first area of conflict is surrender of parental rights by agreement. It has long been recognized\nthat, as a matter of public policy, the state will not enforce or encourage private agreements or\ncontracts to give up parental rights. (citations omitted). Through the intent to procreate, the Johnson\ncase allows the nongenetic carrier/surrogate to be designated as the natural mother. The possibility\nof recognition as a parent means that a potential right is implicit in any agreement or contract to act\nas gestational surrogate. A surrogate who chooses not to be the natural parent forfeits her right to be\nconsidered the natural and legal parent. Because a fee is often involved in a surrogacy service, that\nassent amounts to selling a parental right, and is in contradiction to the public policy against private\ncontracts to surrender parental rights.\nThe second area of conflict involves several aspects of the underlying public policy of adoption law.\nAdoption laws of Ohio have long required that a relinquishing natural mother be given an\nunpressured opportunity before a disinterested magistrate to surrender her parental rights. R.C.\n309\n\n\x0c3107.08. Considering the substantial rights involved, the possible financial pressures, and the value\nour society places on procreation, the need for such procedures is evident.\nIn addition to protecting the interest of the mother, adoption law has attempted to protect the\ninterest of the child. By agreement or otherwise, the natural mother is not free to surrender her child\nto whomever she wishes. Through the use of its parens patriae powers, the state closely supervises\nthe process, and ultimately selects or approves of the new parents. See R.C. Chapter 3107; State ex\nrel. Portage Cty. Welfare Dept. v. Summers (974), 38 Ohio St.2d 144, 67 O.O.2d 151, 311 N.E.2d 6. The\nunderlying public policy is to provide for the best interest of the child: to ensure that the abandoned\nchild is not given to persons who will abuse or neglect the child, but will be placed in a home with\ncaring and competent parents.\nLast, the adoption process promotes stability in the child-parent relationship. A court adjudication\nof adoption clearly ends the rights and responsibilities of the biological parents, and establishes\nthose of the adopting parents. Such a process prevents a challenge to the rights and interests of the\nchild and the parents at some later time. An underlying public policy of adoption law is to provide\nan adopted child with an unquestionable and certain status as to its relationship with those who are\ndesignated as the child\'s legal parents. R.C. 3107.15.\nDue to the surrogate\'s similarity to an adopting parent, the same concerns that brought about the\nforegoing adoption procedure and public policy exist in surrogacy births in which the surrogate\nretains the child. The Johnson court\'s formulation of the intent-to-procreate test does not address\nthose underlying concerns. It does not allow for unpressured surrender of potential parental rights,\nnor does it provide a means to review and ensure the suitability of the gestational surrogate or her\nspouse as parents. In addition, because it is based on private agreement or intent that has not been\nsanctioned by a court proceeding, it raises the question of future legal challenges, and thus\nundermines the stability of the child-parent relationship. The Johnson intent formulation ignores\nthose concerns and relies on the whims of private intent and agreement. It is, in effect, a private\nadoption process that is readily subject to all the defects and pressures of such a process.\nThe final objection this court has to the Johnson intent-to-procreate test is its failure to fully recognize\nthe genetic provider as having the right to choose or to consent. By subordinating the consent of the\ngenetic-providing individual to the intent to procreate of the surrogate who intends to keep and raise\nthe child, the Johnson court has deemphasized what should be considered a basic right. The\nprocreation of a child, that is, the replication of the unique genes of an individual, should occur only\nwith the consent of that individual. See Davis v. Davis, supra, 842 S.W.2d 588. The decision to allow\nimplantation of another\'s egg and sperm with the understanding that the surrogate will raise the\nresulting child also involves the surrendering of parental rights. The consent to procreation and the\nsurrender of the right to raise a child of one\'s own genes must be considered the surrender of basic\nrights. Id. at 600. See, also, Skinner v. Oklahoma (1942), 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655.\nThe exercise of fundamental rights should not be taken lightly, and when the choice is made to\nexercise or not to exercise those rights, the law must protect that process of choice. (citations\nomitted). A minimal protection for the basic rights of procreation, and the raising of a child of that\nprocreation, should be to require consent to the surrender of those rights. At the very inception of\nthe process of fertilization, the infertile couple who intends to raise the child and those who would\nprocure the genetics and facilitate implantation should be put on notice that they must have the\nconsent of the genetic provider. Such a clearly stated rule would prevent the involuntary use of an\n310\n\n\x0cindividual\'s genes. If we are to respect the right of procreation and parentage when a gestational\nsurrogate is used, one of the first questions asked must concern consent of the genetic parents. The\nJohnson test fails to give that priority, and thus fails to provide adequate protection of basic rights.\nOther than Johnson v. Calvert and McDonald v. McDonald, this court can find no precedent or basis in\nthe law, by analogy or otherwise, for establishing a natural parent by intent to procreate. The use of\nthe intent test is truly a new and questionable framework upon which to base the determination of\nparentage. If a break with traditional law and public policy, as represented by the Johnson test, is to\nbe made part of the law of this state, it must be argued that the legislature, through the scrutiny of\npublic hearings and debate, is better situated than a judicial proceeding to test the effectiveness and\nappropriateness of such a change.\nHaving rejected the Johnson test, this court must still provide a framework in which to decide this\ncase. This court believes it to be more prudent to travel a known path and use existing law as a legal\npattern to fashion new law.\nAs has been stated, there is abundant precedent for using the genetics test for identifying a natural\nparent. For the best interest of the child and society, there are strong arguments to recognize the\ngenetic parent as the natural parent. The genetic parent can guide the child from experience through\nthe strengths and weaknesses of a common ancestry of genetic traits. Because that test has served so\nwell, it should remain the primary test for determining the natural parent, or parents, in nongeneticproviding surrogacy cases.\nThe test to identify the natural parents should be, \xe2\x80\x9cWho are the genetic parents?\xe2\x80\x9d When dealing\nwith a nongenetic-providing surrogate, such a rule minimizes or avoids the question of the surrogate\nselling her right to be determined the natural parent. Since she has not contributed to the genetics of\nthe child, and the genetic parent or parents have not waived their rights, she cannot be determined\nthe natural parent. She cannot sell a right she does not have. In addition, given the relative certainty\nof DNA blood testing, such a foundation or test for parental identity would be simpler to apply and\nmore certain in results than a Johnson-type intent test.\nHowever, a genetic test cannot be the only basis for determining who will assume the status of legal\nparent. The law must recognize the reality that the surrogate who did not provide the genetics of a\nchild may wish to be the legal parent. There is precedent for recognition of her interest in becoming\nthe legal parent. Because the surrogate, Carol S. Clark, has failed to assert parental rights, and no\nevidence exists of a consent or waiver, the legal status of a nongenetic-providing surrogate who\nclaims parental rights is not at issue. Therefore, this court cannot properly rule upon the issues\ninvolved in determining that status.\nReturning to the original query of this case, what identifies a natural parent when a child is\nconceived by the use of in vitro fertilization and the surrogate who delivers the child provides none\nof the genetics of that child? The answer of this court is that the individuals who provide the genes\nof that child are the natural parents. However, this court further recognizes that a second query must\nbe made to determine the legal parents, the individual or individuals who will raise the child. That\nquestion must be determined by the consent of the genetic parents. If the genetic providers have not\nwaived their rights and have decided to raise the child, then they must be recognized as the natural\nand legal parents. By formulating the law in this manner, both tests, genetics and birth, are used in\ndetermining parentage. However, they are no longer equal. The birth test becomes subordinate and\n311\n\n\x0csecondary to genetics.\nIn conclusion, under Ohio law, when a child is delivered by a gestational surrogate who has been\nimpregnated through the process of in vitro fertilization, the natural parents of the child shall be\nidentified by a determination as to which individuals have provided the genetic imprint for that\nchild. If the individuals who have been identified as the genetic parents have not relinquished or\nwaived their rights to assume the legal status of natural parents, they shall be considered the natural\nand legal parents of that child.\nApplying the foregoing law to the case at bar, this court has found that Anthony Belsito and Shelly\nBelsito are the genetic parents of the unborn child carried by Carol S. Clark, a gestational surrogate\nwho was impregnated by in vitro fertilization. This court further finds that Anthony Belsito and\nShelly Belsito have not waived their rights to be the natural and legal parents of that child.\nTherefore, this court must find, as a matter of law, that Anthony Belsito and Shelly Belsito are the\nnatural and legal parents of the unborn child now carried by Carol S. Clark.\nJudgment Order\nIT IS THEREFORE THE ORDER OF THIS COURT, and this court does declare:\n1. That Anthony Belsito and Shelly Belsito are the natural and legal parents of the child now carried\nby Carol S. Clark.\n2. That the child is a legitimate child of Anthony Belsito and Shelly Belsito, and that, under the law\nof inheritance of this state, they may inherit through the child and the child may inherit through\nthem.\n3. That they have, in relationship to that child, all other rights and responsibilities that are entailed in\na parent-child relationship.\n4. That, based on the foregoing, an adoption proceeding under R.C. Chapter 3107 is unnecessary.\n5. That upon the birth of the child, pursuant to this court\'s authority under R.C. 3705.09 and R.C.\nChapter 2721, the birth certificate of the child shall list Anthony Belsito as father and Shelly Belsito\nas mother.\nSo ordered.\nNotes and Questions\n1. The Court stated \xe2\x80\x9cBy formulating the law in this manner, both tests, genetics and birth, are used\nin determining parentage. However, they are no longer equal. The birth test becomes subordinate\nand secondary to genetics.\xe2\x80\x9d Do you agree with the Court\xe2\x80\x99s reasoning? Should the birth test be\nsubordinate to genetics? Why? Why not?\n2. Is the application of the genetics test always in the best interests of the child?\n\n312\n\n\x0c3. Should genetics be the sole indicator of maternity? Why? Why not?\n4. Should the outcome of the case be different if it involved a traditional surrogate?\n5. Perry and his partner Daniel wanted to have a child to rear. Perry\xe2\x80\x99s sister, Emily, agreed to be\nartificially inseminated with Daniel\xe2\x80\x99s sperm and to serve as a surrogate for the men. After the birth\nof the child, Perry and Daniel separated. Who are the legal parents of the child applying the\nreasoning of the above case? Does this outcome make sense?\n6.6.1.2 The Gestational Test\nWhen establishing the mother-child relationship, some courts elevate giving birth above all\nother factors. In those jurisdictions, the courts give the maternal rights to the person who gives\nbirth. Thus, a traditional surrogate is the legal mother of the child created as the result of a surrogacy\narrangement. Moreover, since she gives birth to the child, the courts recognize the maternal rights of\nthe gestational surrogate.\nJ.F. v. D.B., 2004 WL 1570142, 66 Pa. D. & C. 4th 1 (2004)\nCONNELLY, J.\nA man and his girlfriend signed a surrogacy contract with a woman who agreed to act as their\nsurrogate. The surrogate became pregnant with triplets. The children were created using the\ncontracting man\xe2\x80\x99s sperm and donor eggs. Therefore, the contracting woman was not biologically\nrelated to the children. During the pregnancy, the contracting couple paid the surrogate\xe2\x80\x99s expenses\nand her medical bills. The babies were born slightly premature at 35 weeks old and had some minor\nmedical problems. Thus, they were placed in the neonatal intensive care unit (NICU). After the\nbirth of the children, the relationship between the surrogate and the contracting couple deteriorated.\nThe surrogate did not approve of the limited contact the contracting couple chose to spend with the\ntriplets while they were hospitalized. Consequently, the gestational surrogate sought to gain custody\nof the triplets.\nThe Court had to decide the following issue: whether a gestation surrogate has standing to file a\ncustody action against the man who provided the sperm used to create the children. The\nPennsylvania Legislature had not enacted a surrogacy statute. Thus, the Court reviewed the statutes\nin other states. In reaching its decision, the Court also relied upon the state tradition and public\npolicy. The Court acknowledged the egg donor as the biological mother. However, the Court\nconcluded that the egg donor could not be the legal mother because she was not a party to the\naction. In addition, the Court opined that the contracting man\xe2\x80\x99s girlfriend was not the legal mother\nbecause she was not genetically-related to the children. Although the gestational surrogate was not\ngenetically-related to the children, the Court held that surrogate was the legal mother of the triplets.\nThe Court based its decision on the fact that the gestational surrogate carried and bore the children\nand took care of them as a natural parent would. The Court emphasized the important role the\nbirth process plays in the recognition of the mother-child relationship.\n\n313\n\n\x0c[The surrogate\xe2\x80\x99s] every decision prior to their birth has affected [the triplets]- health,\nnutrition, prenatal care, etc. In addition, she has not terminated any parental rights she may\nhave to the triplets. She has instead taken the triplets into her home and cared for them\nalong with her three other children. She ismore a mother and a parent by her actions than by\ngenetics.\xe2\x80\x9d\n\nA.H.W. and P.W. v. G.H.B., 772 A.2d 948 (N.J. 2000)\nKOBLITZ, P.J.F.P.\nThe novel issue presented in this surrogacy matter is whether or not a court may issue a pre-birth\norder directing a delivering physician to list the man and woman who provided the embryo carried\nby a third party as legal parents on a child\xe2\x80\x99s birth certificate. Both the petitioning biological parents\nand the defendant surrogate who carried the baby agree that petitioners should be listed as the legal\nparents on the baby certificate. However, the Attorney General\xe2\x80\x99s Office opposes the request of the\nbiological parents for a pre-birth order claiming the relief is contrary to the law prohibiting surrender\nof a birth mother\xe2\x80\x99s rights until seventy-two hours after birth, and the public policy of the State of\nNew Jersey as expressed by the New Jersey Supreme Court in In re Baby M, 109 N.J. 396, 537 A.2d.\n1227 (1988). After considering case law and statutes in other states as well as New Jersey, this Court\ndenies plaintiffs and the defendant surrogate\xe2\x80\x99s request for a pre-birth order, but will issue an order\nwhich allows the petitioning biological parents\xe2\x80\x99 names to be placed on the birth certificate after the\nseventy-two hour statutory waiting period has expired but before the birth certificate must be filed.\nTo understand this unusual relief, the facts of this case must be explored, then a review of other\nstates\xe2\x80\x99 law in this area, followed by a consideration of New Jersey case law, public policy\nimplications and statutes.\nG.H.B., hereinafter \xe2\x80\x9cGina,\xe2\x80\x9d is the unmarried sister of plaintiff A.H.W., \xe2\x80\x9cAndrea,\xe2\x80\x9d and the sister-inlaw of P.W., \xe2\x80\x9cPeter.\xe2\x80\x9d The biological parents, Andrea and Peter, entered into a gestational surrogacy\ncontract with Gina. Gina, without financial compensation, agreed to have embryos implanted into\nher uterus that were created from the sperm of her brother-in-law, Peter, and the ova of her sister,\nAndrea. This medical procedure is commonly referred to as \xe2\x80\x9covum implantation,\xe2\x80\x9d and permits a\nwoman who is incapable of carrying a baby to term to have a child who is genetically related to her.\nThe child is due to be born in about two weeks at a Bergen Country hospital.\nPlaintiffs filed a complaint to declare the maternity and paternity of unborn Baby A. Plaintiffs seek\na pre-birth order establishing them as the legal mother and father of unborn Baby A, and placing\ntheir names on the child\xe2\x80\x99s birth certificate. They argue that a pre-birth order is appropriate with a\ngestational surrogacy.\nThe biological parents, Andrea and Peter, and the gestational surrogate, Gina, argue that Gina has\nno biological ties to the unborn child and liken the gestational carrier\xe2\x80\x99s role to that of an incubator.\nThey argue that Baby M is distinguishable because the surrogate mother in that case was also the\nbiological mother. While Andrea, Peter and Gina are correct that Gina will have no biological ties to\nthe baby, their simplistic comparison to an incubator disregards the fact that there are human\nemotions and biological changes involved in pregnancy.\n\n314\n\n\x0cA bond is created between a gestational mother and the baby she carries in her womb for nine\nmonths. During the pregnancy, the fetus relies on the gestational mother for a myriad of\ncontributions. A gestational mother\xe2\x80\x99s endocrine system determines the timing, amount and\ncomponents of hormones that affect the fetus. The absence of any component at its appropriate\ntime will irreversibly alter the life, mental capacity, appearance, susceptibility to disease and structure\nof the fetus forever. The gestational mother contributes an endocrine case that determines how the\nchild will grow, when its cells will divide and differentiate in the womb, and how the child will\nappear and function for the rest of its life. (citations omitted)\nIn this case, Gina has previously had one child and therefore had an understanding of what is\ninvolved in carrying a pregnancy to term at the time she signed the contract. The problem case will\npresent itself when a gestational mother changes her mind and wishes to keep the newborn. This\nmay be more likely where a gestational mother has never had a child and is unfamiliar with the\nemotions and biological changes involved in a pregnancy. She will not be able to predict what her\nfeelings will be towards the child she bears. Her body will undergo significant changes and she will\ncontinue to react biologically as any other birth mother. In this case it seems likely that the transfer\nof the child will occur without incident due to the close family ties of the parties and Gina\xe2\x80\x99s previous\nexperience with childbirth. However, although Gina is extremely likely to surrender her rights as\nplanned, she must not be completed to do so in a pre-birth order.\nNew Jersey regulations governing the creation of birth records state that the woman who gives birth\nmust be recorded as a parent on the birth certificate. NJAC 8:2-1.4(a). This regulation would\nnormally necessitate that Gina\xe2\x80\x99s name be placed on the birth certificate along with her brother-inlaw, Peter, as the father. However, all parties have agreed by written contract that Andrea and\nPeter\xe2\x80\x99s names should be placed on the birth certificate.\nIn New Jersey, as required by NJSA 26:8-28(a), a birth certificate must be issued and filed within five\ndays of birth with the local registrar of the district in which the birth occurred. Pursuant to NJSA\n26:8-30, \xe2\x80\x9cthe attending physician, midwife or person acting as the agent of the physician or midwife,\nwho was in attendance upon the birth shall be responsible for the proper execution and return of a\ncertificate of birth.\xe2\x80\x9d\nIn recognition of the emotional and physical changes in the mother which occur at birth, voluntary\nsurrenders are not valid if taken within seventy-two hours after the birth of the child. NJSA 9:341(e). Thus after the seventy-two hours have elapsed, Gina will be able to lawfully surrender her\nparental rights. She will have the responsibility of making decisions for the child during this\nseventy-hour period, even if her ultimate decision is to surrender her parental rights.\nIt is not necessary to now determine what parental rights, if any, the gestational mother may have\nvis-a-vis the newborn infant. That decision will have to be made if and when a gestational mother\nattempts to keep the infant after birth in violation of the prior agreement. Here, Gina, Peter and\nAndrea are closely related. The parties\xe2\x80\x99 detailed fifteen page agreement clearly reflects their shared\nintent and desired outcome for this case. Further, Gina, as Andrea\xe2\x80\x99s sister and Peter\xe2\x80\x99s sister-in-law\nknows the biological parents intimately and is in an excellent position to know the type of home\nthey will provide for the child. Thus almost certainly Gina will honor the contract and surrender her\nrights.\nConclusion\n315\n\n\x0cThe Legislature may well choose to clarify the rights and responsibilities of parties in a gestational\nsurrogacy. The most prudent course, prior to legislative action, is to follow the current statutes as\nclosely as possible while allowing the parties, to the maximum extent possible, the relief requested.\nA court order for the pre-birth termination of the pregnant defendant\xe2\x80\x99s parental rights is the\nequivalent of making her subject to a binding agreement to surrender the child and is contrary to\nNew Jersey statutes and Baby M. Therefore, the gestational mother may surrender the child\nseventy-two hours after giving birth, which is forty-eight hours before the birth certificate must be\nprepared. If Gina does choose to surrender the infant, and she certifies that she wishes to relinquish\nall rights, then the original birth certificate will list the two biological parents, Andrea and Peter, as\nthe baby\xe2\x80\x99s parents. If Gina changes her mind once the baby is born, she will have a chance to\nlitigate for parental rights to the child.\nThe attending physician who delivers Baby A should prepare a Certificate of Parentage four days\nafter the birth of the child. This waiting period will allow Gina to surrender her parental right after\nseventy-two hours and also allow a birth certificate to be issued within five days of birth. After Gina\nsurrenders any parental rights she might have, the Certificate of Parentage shall be completed with\nPeter as the legal father and Andrea the legal mother. This solution represents a modification of the\nagreement between the parties to the least extent necessary to comply with current New Jersey\nstatutes and the public policy concerns expressed by the Supreme Court in Baby M.\nNote and Questions\n1. If Gina dies before surrendering her parental rights, would the child be eligible to inherit from\nher estate?\n2. The Court claims that it is not deciding the issue of the parental rights of a gestational mother. Is\nthat true? By deciding that the gestational surrogate has a choice whether or not to surrender her\nparental rights, isn\xe2\x80\x99t the Court establishing a parent-child relationship between her and the child?\n3. The Court refers to Gina as a gestational mother instead of a gestational surrogate. Doesn\xe2\x80\x99t that\nfact indicate that the Court is favoring gestation over genetics?\n4. Since Gina is not genetically related to the child, should she be able to litigate to have parental\nrights over the child?\n5. If a client comes to you seeking advice about using a gestational surrogate in this jurisdiction,\nwhat would you recommend?\n6. What are the advantages and disadvantages of using the birth test to determine maternity?\n7. The Court seems reluctant to force the gestational mother to surrender her parental rights.\nHowever, in New Jersey, the parental rights of sperm donors are automatically waived at the time\nthey donate sperm. Does it make sense to be more protective of the parental rights of a woman with\nno genetic connection to the child than of the parental rights of the man who contributes the\ngenetic material used to create the child?\n\n316\n\n\x0c8. Should there be a presumption that the gestational surrogate is not the legal mother of the child?\n9. In light of the precedent established by this case, Andrea could be severely disadvantaged.\nConsider the following scenario. Gina dies in child birth. Since he is the biological father, Peter\xe2\x80\x99s\nname is placed upon the birth certificate and he is give custody of the child. When the baby is only a\nfew months old, Peter and Andrea divorced. Given her lack of biological connection to the child, it\nis possible that Andrea would not have the legal right to custody or visitation. Would that outcome\nbe fair? Gina only agreed to the process because she wanted to help her sister, Andrea, become a\nmother. What can Andrea do to protect her rights?\n10. In most surrogacy situations, the woman who gives birth to the child will not be married to the\nman who provides the genetic material. As a consequence, if the surrogate is considered to be the\nchild\xe2\x80\x99s mother, the child may be labeled as a nonmarital child. Should the child have to satisfy the\nrequirements of the state\xe2\x80\x99s non-marital statute in order to have the right to inherit from his or her\nfather?\n6.6.1.3 The Intent Test\n\nJohnson v. Calvert, 851 P.2d. 776 (Cal. 1993)\nPANELLI, Justice.\nIn this case we address several of the legal questions raised by recent advances in reproductive\ntechnology. When, pursuant to a surrogacy agreement, a zygote formed of the gamete of a husband\nand wife is implanted in the uterus of another woman, who carries the resulting fetus to term and\ngives birth to a child not genetically related to her, who is the child\'s \xe2\x80\x9cnatural mother\xe2\x80\x9d under\nCalifornia law? Does a determination that the wife is the child\'s natural mother work a deprivation\nof the gestating woman\'s constitutional rights? And is such an agreement barred by any public policy\nof this state?\nWe conclude that the husband and wife are the child\'s natural parents, and that this result does not\noffend the state or federal Constitution or public policy.\nFacts\nMark and Crispina Calvert are a married couple who desired to have a child. Crispina was forced to\nundergo a hysterectomy in 1984. Her ovaries remained capable of producing eggs, however, and the\ncouple eventually considered surrogacy. In 1989 Anna Johnson heard about Crispina\'s plight from a\ncoworker and offered to serve as a surrogate for the Calverts.\nOn January 15, 1990, Mark, Crispina, and Anna signed a contract providing that an embryo created\nby the sperm of Mark and the egg of Crispina would be implanted in Anna and the child born would\nbe taken into Mark and Crispina\'s home \xe2\x80\x9cas their child.\xe2\x80\x9d Anna agreed she would relinquish \xe2\x80\x9call\nparental rights\xe2\x80\x9d to the child in favor of Mark and Crispina. In return, Mark and Crispina would pay\nAnna $10,000 in a series of installments, the last to be paid six weeks after the child\'s birth. Mark\nand Crispina were also to pay for a $200,000 life insurance policy on Anna\'s life.\n317\n\n\x0cThe zygote was implanted on January 19, 1990. Less than a month later, an ultrasound test\nconfirmed Anna was pregnant.\nUnfortunately, relations deteriorated between the two sides. Mark learned that Anna had not\ndisclosed she had suffered several stillbirths and miscarriages. Anna felt Mark and Crispina did not\ndo enough to obtain the required insurance policy. She also felt abandoned during an onset of\npremature labor in June.\nIn July 1990, Anna sent Mark and Crispina a letter demanding the balance of the payments due her\nor else she would refuse to give up the child. The following month, Mark and Crispina responded\nwith a lawsuit, seeking a declaration they were the legal parents of the unborn child. Anna filed her\nown action to be declared the mother of the child, and the two cases were eventually consolidated.\nThe parties agreed to an independent guardian ad litem for the purposes of the suit.\nThe child was born on September 19, 1990, and blood samples were obtained from both Anna and\nthe child for analysis. The blood test results excluded Anna as the genetic mother. The parties agreed\nto a court order providing that the child would remain with Mark and Crispina on a temporary basis\nwith visits by Anna.\nAt trial in October 1990, the parties stipulated that Mark and Crispina were the child\'s genetic\nparents. After hearing evidence and arguments, the trial court ruled that Mark and Crispina were the\nchild\'s \xe2\x80\x9cgenetic, biological and natural\xe2\x80\x9d father and mother, that Anna had no \xe2\x80\x9cparental\xe2\x80\x9d rights to the\nchild, and that the surrogacy contract was legal and enforceable against Anna\'s claims. The court also\nterminated the order allowing visitation. Anna appealed from the trial court\'s judgment. The Court\nof Appeal for the Fourth District, Division Three, affirmed. We granted review.\nThe Uniform Parentage Act (the Act) was part of a package of legislation introduced in 1975 as\nSenate Bill No. 347. The legislation\'s purpose was to eliminate the legal distinction between\nlegitimate and illegitimate children. The Act followed in the wake of certain United States Supreme\nCourt decisions mandating equal treatment of legitimate and illegitimate children. (citations omitted).\nThe pertinent portion of Senate Bill No. 347, which passed with negligible opposition, became Part\n7 of Division 4 of the California Civil Code, sections 7000-7021.78\nCivil Code sections 7001 and 7002 replace the distinction between legitimate and illegitimate\nchildren with the concept of the \xe2\x80\x9cparent and child relationship.\xe2\x80\x9d The \xe2\x80\x9cparent and child\nrelationship\xe2\x80\x9d means \xe2\x80\x9cthe legal relationship existing between a child and his natural or adoptive\nparents incident to which the law confers or imposes rights, privileges, duties, and obligations. It\nincludes the mother and child relationship and the father and child relationship.\xe2\x80\x9d (Civ.Code, \xc2\xa7\n7001.) \xe2\x80\x9cThe parent and child relationship extends equally to every child and to every parent,\nregardless of the marital status of the parents.\xe2\x80\x9d (Civ.Code, \xc2\xa7 7002.) The \xe2\x80\x9cparent and child\nrelationship\xe2\x80\x9d is thus a legal relationship encompassing two kinds of parents, \xe2\x80\x9cnatural\xe2\x80\x9d and\n\xe2\x80\x9cadoptive.\xe2\x80\x9d\nEffective January Code sections-7021 have been repealed and replaced with equivalent provisions in the Family\nCode. (Stats.1992, ch. 162, \xc2\xa7 4; see Fam.Code, \xc2\xa7\xc2\xa7 7600-7650 [eff. Jan. 1, 1994].)\n78\n\n318\n\n\x0cPassage of the Act clearly was not motivated by the need to resolve surrogacy disputes, which were\nvirtually unknown in 1975. Yet it facially applies to any parentage determination, including the rare\ncase in which a child\'s maternity is in issue. We are invited to disregard the Act and decide this case\naccording to other criteria, including constitutional precepts and our sense of the demands of public\npolicy. We feel constrained, however, to decline the invitation. Not uncommonly, courts must\nconstrue statutes in factual settings not contemplated by the enacting legislature.\nThese contentions are readily summarized. Anna, of course, predicates her claim of maternity on the\nfact that she gave birth to the child. The Calverts contend that Crispina\'s genetic relationship to the\nchild establishes that she is his mother. Counsel for the minor joins in that contention and argues, in\naddition, that several of the presumptions created by the Act dictate the same result. As will appear,\nwe conclude that presentation of blood test evidence is one means of establishing maternity, as is\nproof of having given birth, but that the presumptions cited by minor\'s counsel do not apply to this\ncase.\nWe turn to those few provisions of the Act directly addressing the determination of maternity. \xe2\x80\x9cAny\ninterested party,\xe2\x80\x9d presumably including a genetic mother, \xe2\x80\x9cmay bring an action to determine the\nexistence ... of a mother and child relationship.\xe2\x80\x9d (Civ.Code, \xc2\xa7 7015.) Civil Code section 7003\nprovides, in relevant part, that between a child and the natural mother a parent and child relationship\n\xe2\x80\x9cmay be established by proof of her having given birth to the child, or under [the Act].\xe2\x80\x9d (Civ.Code,\n\xc2\xa7 7003, subd. (1), emphasis added.) Apart from Civil Code section 7003, the Act sets forth no\nspecific means by which a natural mother can establish a parent and child relationship. However, it\ndeclares that, insofar as practicable, provisions applicable to the father and child relationship apply in\nan action to determine the existence or nonexistence of a mother and child relationship. (Civ.Code,\n\xc2\xa7 7015.) Thus, it is appropriate to examine those provisions as well.\nA man can establish a father and child relationship by the means set forth in Civil Code section\n7004. (Civ.Code, \xc2\xa7\xc2\xa7 7006, 7004.) Paternity is presumed under that section if the man meets the\nconditions set forth in section 621 of the Evidence Code. (Civ.Code, \xc2\xa7 7004, subd. (a).) The latter\nstatute applies, by its terms, when determining the questioned paternity of a child born to a married\nwoman, and contemplates reliance on evidence derived from blood testing. (Evid.Code, \xc2\xa7 621,\nsubds. (a), (b); see Evid.Code, \xc2\xa7\xc2\xa7 890-897 [Uniform Act on Blood Tests to Determine Paternity].)\nAlternatively, Civil Code section 7004 creates a presumption of paternity based on the man\'s\nconduct toward the child (e.g., receiving the child into his home and openly holding the child out as\nhis natural child) or his marriage or attempted marriage to the child\'s natural mother under specified\nconditions (citations omitted).\nIn our view, the presumptions contained in Civil Code section 7004 do not apply here. They\ndescribe situations in which substantial evidence points to a particular man as the natural father of\nthe child. (9B West\'s U.Laws Ann. (1987) Unif. Parentage Act, com. foll. \xc2\xa7 4, p. 299.) In this case,\nthere is no question as to who is claiming the mother and child relationship, and the factual basis of\neach woman\'s claim is obvious. Thus, there is no need to resort to an evidentiary presumption to\nascertain the identity of the natural mother. Instead, we must make the purely legal determination as\nbetween the two claimants.\nSignificantly for this case, Evidence Code section 892 provides that blood testing may be ordered in\nan action when paternity is a relevant fact. When maternity is disputed, genetic evidence derived\n319\n\n\x0cfrom blood testing is likewise admissible. (Evid.Code, \xc2\xa7 892; see Civ.Code, \xc2\xa7 7015.) The Evidence\nCode further provides that if the court finds the conclusions of all the experts, as disclosed by the\nevidence based on the blood tests, are that the alleged father is not the father of the child, the\nquestion of paternity is resolved accordingly. (Evid.Code, \xc2\xa7 895.) By parity of reasoning, blood\ntesting may also be dispositive of the question of maternity. Further, there is a rebuttable\npresumption of paternity (hence, maternity as well) on the finding of a certain number of genetic\nmarkers. (Evid.Code, \xc2\xa7 895.5.)\nDisregarding the presumptions of paternity that have no application to this case, then, we are left\nwith the undisputed evidence that Anna, not Crispina, gave birth to the child and that Crispina, not\nAnna, is genetically related to him. Both women thus have adduced evidence of a mother and child\nrelationship as contemplated by the Act. (Civ.Code, \xc2\xa7\xc2\xa7 7003, subd. (1), 7004, subd. (a), 7015;\nEvid.Code, \xc2\xa7\xc2\xa7 621, 892.) Yet for any child California law recognizes only one natural mother, despite\nadvances in reproductive technology rendering a different outcome biologically possible.\nWe see no clear legislative preference in Civil Code section 7003 as between blood testing evidence\nand proof of having given birth. The word \xe2\x80\x9cmay\xe2\x80\x9d in the Act indicates that proof of having given\nbirth is a permitted method of establishing a mother and child relationship, although perhaps not\nthe exclusive one. The disjunctive \xe2\x80\x9cor\xe2\x80\x9d indicates that blood test evidence, as prescribed in the Act,\nconstitutes an alternative to proof of having given birth. It may be that the language of the Act\nmerely reflects \xe2\x80\x9cthe ancient dictum mater est quam [gestation] demonstrat (by gestation the mother\nis demonstrated). This phrase, by its use of the word \xe2\x80\x98demonstrated,\xe2\x80\x99 has always reflected an\nambiguity in the meaning of the presumption. It is arguable that, while gestation may demonstrate\nmaternal status, it is not the sine qua non of motherhood. Rather, it is possible that the common law\nviewed genetic consanguinity as the basis for maternal rights. Under this latter interpretation,\ngestation simply would be irrefutable evidence of the more fundamental genetic relationship.\xe2\x80\x9d (Hill,\nWhat Does It Mean to Be a \xe2\x80\x9cParent\xe2\x80\x9d? The Claims of Biology As the Basis for Parental Rights (1991) 66\nN.Y.U.L.Rev. 353, 370, fns. omitted.) This ambiguity, highlighted by the problems arising from the\nuse of artificial reproductive techniques, is nowhere explicitly resolved in the Act.\nBecause two women each have presented acceptable proof of maternity, we do not believe this case\ncan be decided without enquiring into the parties\' intentions as manifested in the surrogacy\nagreement. Mark and Crispina are a couple who desired to have a child of their own genetic stock\nbut are physically unable to do so without the help of reproductive technology. They affirmatively\nintended the birth of the child, and took the steps necessary to effect in vitro fertilization. But for\ntheir acted-on intention, the child would not exist. Anna agreed to facilitate the procreation of\nMark\'s and Crispina\'s child. The parties\' aim was to bring Mark\'s and Crispina\'s child into the world,\nnot for Mark and Crispina to donate a zygote to Anna. Crispina from the outset intended to be the\nchild\'s mother. Although the gestative function Anna performed was necessary to bring about the\nchild\'s birth, it is safe to say that Anna would not have been given the opportunity to gestate or\ndeliver the child had she, prior to implantation of the zygote, manifested her own intent to be the\nchild\'s mother. No reason appears why Anna\'s later change of heart should vitiate the determination\nthat Crispina is the child\'s natural mother.\nWe conclude that although the Act recognizes both genetic consanguinity and giving birth as means\nof establishing a mother and child relationship, when the two means do not coincide in one woman,\nshe who intended to procreate the child-that is, she who intended to bring about the birth of a child\nthat she intended to raise as her own-is the natural mother under California law.\n320\n\n\x0cIn deciding the issue of maternity under the Act we have felt free to take into account the parties\'\nintentions, as expressed in the surrogacy contract, because in our view the agreement is not, on its\nface, inconsistent with public policy.\nPreliminarily, Mark and Crispina urge us to interpret the Legislature\'s 1992 passage of a bill that\nwould have regulated surrogacy as an expression of this state\'s public policy despite the fact that\nGovernor Wilson\'s veto prevented the bill from becoming law. Senate Bill No. 937 contained a\nfinding that surrogate contracts are not against sound public and social policy. (Sen. Bill No. 937\n(1991-1992 Reg.Sess.).) Had Senate Bill No. 937 become law, there would be no room for argument\nto the contrary. The veto, however, raises a question whether the legislative declaration truly\nexpresses California\'s public policy.\nIn the Governor\'s veto message we find, not unequivocal agreement with the Legislature\'s public\npolicy assessment, but rather reservations about the practice of surrogate parenting. \xe2\x80\x9cSurrogacy is a\nrelatively recent phenomenon. The full moral and psychological dimensions of this practice are not\nyet clear. In fact, they are just beginning to emerge. Only two published court opinions in California\nhave treated this nettlesome subject.... Comprehensive regulation of this difficult moral issue is\npremature.... To the extent surrogacy continues to be practical, it can be governed by the legal\nframework already established in the family law area.\xe2\x80\x9d (Governor\'s veto message to Sen. on Sen. Bill\nNo. 937 (Sept. 26, 1992) Sen. Daily File (1991-1992 Reg.Sess.) p. 68.) Given this less than ringing\nendorsement of surrogate parenting, we conclude that the passage of Senate Bill No. 937, in and of\nitself, does not establish that surrogacy contracts are consistent with public policy. (Of course,\nneither do we draw the opposite conclusion from the fact of the Governor\'s veto.)\nAnna urges that surrogacy contracts violate several social policies. Relying on her contention that\nshe is the child\'s legal, natural mother, she cites the public policy embodied in Penal Code section\n273, prohibiting***** the payment for consent to adoption of a child. She argues further that the\npolicies underlying the adoption laws of this state are violated by the surrogacy contract because it in\neffect constitutes a prebirth waiver of her parental rights.\nWe disagree. Gestational surrogacy differs in crucial respects from adoption and so is not subject to\nthe adoption statutes. The parties voluntarily agreed to participate in in vitro fertilization and related\nmedical procedures before the child was conceived; at the time when Anna entered into the\ncontract, therefore, she was not vulnerable to financial inducements to part with her own expected\noffspring. As discussed above, Anna was not the genetic mother of the child. The payments to Anna\nunder the contract were meant to compensate her for her services in gestating the fetus and\nundergoing labor, rather than for giving up \xe2\x80\x9cparental\xe2\x80\x9d rights to the child. Payments were due both\nduring the pregnancy and after the child\'s birth. We are, accordingly, unpersuaded that the contract\nused in this case violates the public policies embodied in Penal Code section 273 and the adoption\nstatutes. For the same reasons, we conclude these contracts do not implicate the policies underlying\nthe statutes governing termination of parental rights. (See Welf. & Inst.Code, \xc2\xa7 202.)\nIt has been suggested that gestational surrogacy may run afoul of prohibitions on involuntary\nservitude. (See U.S. Const., Amend. XIII; Cal. Const., art. I, \xc2\xa7 6; Pen.Code, \xc2\xa7 181.) Involuntary\nservitude has been recognized in cases of criminal punishment for refusal to work. (Pollock v.\nWilliams (1944) 322 U.S. 4, 18, 64 S.Ct. 792, 799, 88 L.Ed. 1095, 1104; see, generally, 7 Witkin,\nSummary of Cal. Law (9th ed. 1988) Constitutional Law, \xc2\xa7\xc2\xa7 411-414, pp. 591-596.) We see no\n321\n\n\x0cpotential for that evil in the contract at issue here, and extrinsic evidence of coercion or duress is\nutterly lacking. We note that although at one point the contract purports to give Mark and Crispina\nthe sole right to determine whether to abort the pregnancy, at another point it acknowledges: \xe2\x80\x9cAll\nparties understand that a pregnant woman has the absolute right to abort or not abort any fetus she\nis carrying. Any promise to the contrary is unenforceable.\xe2\x80\x9d We therefore need not determine the\nvalidity of a surrogacy contract purporting to deprive the gestator of her freedom to terminate the\npregnancy.\nFinally, Anna and some commentators have expressed concern that surrogacy contracts tend to\nexploit or dehumanize women, especially women of lower economic status. Anna\'s objections center\naround the psychological harm she asserts may result from the gestator\'s relinquishing the child to\nwhom she has given birth. Some have also cautioned that the practice of surrogacy may encourage\nsociety to view children as commodities, subject to trade at their parents\' will.\nWe are all too aware that the proper forum for resolution of this issue is the Legislature, where\nempirical data, largely lacking from this record, can be studied and rules of general applicability\ndeveloped.***** However, in light of our responsibility to decide this case, we have considered as\nbest we can its possible consequences.\nWe are unpersuaded that gestational surrogacy arrangements are so likely to cause the untoward\nresults Anna cites as to demand their invalidation on public policy grounds. Although common\nsense suggests that women of lesser means serve as surrogate mothers more often than do wealthy\nwomen, there has been no proof that surrogacy contracts exploit poor women to any greater degree\nthan economic necessity in general exploits them by inducing them to accept lower-paid or\notherwise undesirable employment. We are likewise unpersuaded by the claim that surrogacy will\nfoster the attitude that children are mere commodities; no evidence is offered to support it. The\nlimited data available seem to reflect an absence of significant adverse effects of surrogacy on all\nparticipants.\nThe argument that a woman cannot knowingly and intelligently agree to gestate and deliver a baby\nfor intending parents carries overtones of the reasoning that for centuries prevented women from\nattaining equal economic rights and professional status under the law. To resurrect this view is both\nto foreclose a personal and economic choice on the part of the surrogate mother, and to deny\nintending parents what may be their only means of procreating a child of their own genetic stock.\nCertainly in the present case it cannot seriously be argued that Anna, a licensed vocational nurse\nwho had done well in school and who had previously borne a child, lacked the intellectual\nwherewithal or life experience necessary to make an informed decision to enter into the surrogacy\ncontract.\nThe judgment of the Court of Appeal is affirmed.\n\n322\n\n\x0c6.6.1.4 The Best Interests of the Child Test\n\nJohnson v. Calvert, 851 P.2d. 776 (Cal. 1993)\nKENNARD, Justice, dissenting.\nWhen a woman who wants to have a child provides her fertilized ovum to another woman who\ncarries it through pregnancy and gives birth to a child, who is the child\'s legal mother? Unlike the\nmajority, I do not agree that the determinative consideration should be the intent to have the child\nthat originated with the woman who contributed the ovum. In my view, the woman who provided\nthe fertilized ovum and the woman who gave birth to the child both have substantial claims to legal\nmotherhood. Pregnancy entails a unique commitment, both psychological and emotional, to an\nunborn child. No less substantial, however, is the contribution of the woman from whose egg the\nchild developed and without whose desire the child would not exist.\nFor each child, California law accords the legal rights and responsibilities of parenthood to only one\n\xe2\x80\x9cnatural mother.\xe2\x80\x9d When, as here, the female reproductive role is divided between two women,\nCalifornia law requires courts to make a decision as to which woman is the child\'s natural mother,\nbut provides no standards by which to make that decision. The majority\'s resort to \xe2\x80\x9cintent\xe2\x80\x9d to break\nthe \xe2\x80\x9ctie\xe2\x80\x9d between the genetic and gestational mothers is unsupported by statute, and, in the absence\nof appropriate protections in the law to guard against abuse of surrogacy arrangements, it is illadvised. To determine who is the legal mother of a child born of a gestational surrogacy\narrangement, I would apply the standard most protective of child welfare-the best interests of the\nchild.\nTo summarize, the woman who carried the fetus to term and brought a child into the world has, like\nthe genetic mother, a substantial claim to be the natural mother of the child. The gestational mother\nhas made an indispensable and unique biological contribution, and has also gone beyond biology in\nan intangible respect that, though difficult to label, cannot be denied. Accordingly, I cannot agree\nwith the majority\'s devaluation of the role of the gestational mother.\nI agree with the majority that the best interests of the child is an important goal; indeed, as I shall\nexplain, the best interests of the child, rather than the intent of the genetic mother, is the proper\nstandard to apply in the absence of legislation. The problem with the majority\'s rule of intent is that\napplication of this inflexible rule will not serve the child\'s best interests in every case.\nFactors that are pertinent to good parenting, and thus that are in a child\'s best interests, include the\nability to nurture the child physically and psychologically (Cahill, The Ethics of Surrogate Motherhood:\nBiology, Freedom, and Moral Obligation, in Surrogate Motherhood, supra, at p. 160), and to provide ethical\nand intellectual guidance (see In re Marriage of Carney (1979) 24 Cal.3d 725, 739, 157 Cal.Rptr. 383, 598\nP.2d 36). Also crucial to a child\'s best interests is the \xe2\x80\x9cwell recognized right\xe2\x80\x9d of every child \xe2\x80\x9cto\nstability and continuity.\xe2\x80\x9d (Burchard v. Garay, supra, 42 Cal.3d at p. 546, 229 Cal.Rptr. 800, 724 P.2d\n486 (conc. opn. of Mosk, J.).) The intent of the genetic mother to procreate a child is certainly\nrelevant to the question of the child\'s best interests; alone, however, it should not be dispositive.\nHere, the child born of the gestational surrogacy arrangement between Anna Johnson and Mark and\nCrispina Calvert has lived continuously with Mark and Crispina since his birth in September 1990.\n323\n\n\x0cThe trial court awarded parental rights to Mark and Crispina, concluding that as a matter of law they\nwere the child\'s \xe2\x80\x9cgenetic, biological and natural\xe2\x80\x9d parents. In reaching that conclusion, the trial court\ndid not treat Anna\'s statutory claim to be the child\'s legal mother as equal to Crispina\'s, nor did the\ntrial court consider the child\'s best interests in deciding between those two equal statutory claims.\nAccordingly, I would remand the matter to the trial court to undertake that evaluation.\nI would reverse the judgment of the Court of Appeal, and remand the case to the trial court for a\ndetermination of disputed parentage on the basis of the best interests of the child.\nNotes and Questions\n1. What are the pros and cons of the intent test? How should the intent of the parties be\ndetermined?\n2. Is the best interests test really a separate test? Should not the best interests of the child always be\nthe primary factor in determining the mother of the child?\n3. Since the surrogate had no genetic connection to the child, would not it have been simpler for\nthe court to just apply the birth test?\n4. Would the court\xe2\x80\x99s reasoning justify the outcome if the case involved a gestational surrogate?\n5. Would application of the dissent\xe2\x80\x99s best interests test change the outcome of the case? Is it a\nbetter test?\n6. Should the child be able to inherit from both women involved in the process?\n6.6.1.5 The Totality of the Circumstances\n\nIn re C.K.G., 173 S.W. 3d 714 (Tenn. 2005)\nDROWOTA, C.J.\nThis controversy involves a maternity dispute. An unmarried, heterosexual couple had three children\nby obtaining eggs donated from an anonymous third-party female, fertilizing the eggs in vitro with\nthe man\'s sperm, and implanting the fertilized eggs in the woman\'s uterus. The couple intended to\nrear the children together as father and mother. When the couple\'s relationship deteriorated, the\nwoman filed a parentage action seeking custody and child support. In response, the man claimed\nthat the woman had no standing as a parent because, lacking genetic connection to the children, she\nfailed to qualify as a parent under Tennessee\'s parentage statutes. On this basis, the man sought sole\nand exclusive custody.\nEmploying a broadly-framed test that looks to the parties\' pre-conception intent to determine\nmaternity, both the juvenile court and the Court of Appeals held that the woman was the children\'s\nlegal mother. Alternatively, the Court of Appeals held that the man, based on his representations\nand conduct which induced detrimental reliance by the woman, is estopped to deny the woman\'s\nstatus as mother. We vacate the adoption of the intent test by the court below and also vacate the\n324\n\n\x0cholding of the Court of Appeals that the man is estopped to deny the woman\'s maternal status.\nHowever, we affirm on separate grounds the holding of the courts below that the woman is the\nchildren\'s legal mother with all the rights and responsibilities of parenthood. Our holding in this\nregard is based on the following factors: (1) prior to the children\'s birth, both the woman as gestator\nand the man as the genetic father voluntarily demonstrated the bona fide intent that the woman\nwould be the children\'s legal mother and agreed that she would accept the legal responsibility as well\nas the legal rights of parenthood; (2) the woman became pregnant, carried to term, and gave birth to\nthe children as her own; and (3) this case does not involve a controversy between a gestator and a\nfemale genetic progenitor where the genetic and gestative roles have been separated and distributed\namong two women, nor does this case involve a controversy between a traditional or gestational\nsurrogate and a genetically-unrelated intended mother.\nOur holding today is tailored narrowly to the specific controversy now before us. Having concluded\nthat the woman is the children\'s legal mother, we also affirm in full the judgments of the juvenile\ncourt and Court of Appeals concerning comparative fitness, custody, child support, and visitation.\nI. Factual and Procedural Background\nDr. Charles K.G. and Ms. Cindy C. first met in 1993 while working at Vanderbilt University Medical\nCenter in Nashville. Cindy was a nurse practitioner who managed a department through which\nCharles, then a medical resident, rotated. Charles and Cindy began dating in 1994. After an initial\nperiod of closeness, they maintained for several years an unsteady dating relationship which included\nan extended period of estrangement.\nIn 1999, Charles and Cindy not only reunited as an unmarried couple but also soon thereafter began\ndiscussing having a child together. By this time Cindy was forty-five years old and Charles was also\nin his mid-forties. Charles had never had children. He had not grown up in Tennessee, and a\nDecember 1999 visit to his birthplace influenced him; he wanted to be a father. Even though Cindy\nhad at least two adult children from prior marriages as well as grandchildren, she was amenable to\nstarting a family with Charles. However, given her age, Cindy was concerned about the viability of\nher ova, or eggs.\nHaving decided to have a child, Charles and Cindy pursued in vitro fertilization through the\nNashville Fertility Center. On May 2, 2000, they jointly executed several agreements with the\nFertility Center. Although Charles and Cindy were unmarried, they did not alter the boilerplate\nlanguage that the Center frequently used in its agreements describing them as \xe2\x80\x9chusband\xe2\x80\x9d and\n\xe2\x80\x9cwife.\xe2\x80\x9d Included among these agreements was a \xe2\x80\x9cRECIPIENT CONSENT FOR DONATION\nOF OOCYTES BY ANONYMOUS DONOR\xe2\x80\x9d (\xe2\x80\x9cRecipient Consent\xe2\x80\x9d) which describes the\nfertilization procedure and its risks, waives the right of Charles and Cindy to know the egg donor\'s\nidentity, and outlines the responsibilities of the parties to the agreement. The Recipient Consent\nfurther provides as follows:\nI, Cindy (wife), understand that the child(ren) conceived by this method will not have my\ngenetic material, but will have that of the oocyte [egg] donor and my husband [sic].\nHowever, regardless of the outcome, I will be the mother of any child(ren) born to me as a\nresult of egg donation and hereby accept all the legal responsibilities required of such a\nparent.\n325\n\n\x0cThis document was signed by Cindy as \xe2\x80\x9cwife\xe2\x80\x9d and by Charles as \xe2\x80\x9chusband\xe2\x80\x9d and was witnessed and\nsigned by a physician who represented that he had fully explained the procedure to Charles and\nCindy and had answered all their questions. However, Charles and Cindy executed no other\nagreements concerning their intentions as to parentage or surrogacy.\nShortly thereafter, Charles paid the Fertility Center $10,000 for the procedure of having two\nanonymously donated eggs fertilized with Charles\'s sperm and inserted in Cindy\'s uterus. Charles\nintended for them to conceive only one child (presumably two eggs were used to increase the\nprocedure\'s odds of success). After fertilization, one of the eggs divided, resulting in the\ndevelopment of three embryos. All three embryos flourished; Cindy had become pregnant with\ntriplets.\nDuring Cindy\'s pregnancy, Charles began residing consistently at Cindy\'s home. Due to\ncomplications with the pregnancy, Cindy took an early leave from her job. When she was placed on\nbed rest, Charles maintained the household and cooked for her. On February 21, 2001, Cindy gave\nbirth via caesarian section to three children: C.K.G., C.A.G., and C.L.G. Tennessee Department of\nHealth birth certificates for the children identify Charles as the father and Cindy as the mother.\nAlthough Charles had never promised to marry Cindy, he represented that he desired permanence\nand stability with her. Further, Cindy understood and expected that they would raise the children\ntogether as mother and father. In fact, Cindy even sought assurance from Charles that she would\nnot have to rear them by herself. Cindy stayed home with the triplets on maternity leave until June\n2001 when she returned to work four days per week. Having set aside money in anticipation of\nhaving a child, Charles took a one-year leave of absence (February 2001 to January 2002) from his\nposition as an emergency room physician. For the first several months after the triplets\' birth,\nCharles and Cindy lived together and shared parenting responsibilities. They each provided\nfinancially for the children\'s needs. Further, for some time they had discussed the need for a larger\nhome, and they purchased a house in Brentwood together as tenants in common with the\nunderstanding that they would bear the cost equally. Cindy sold her prior residence, and she,\nCharles, and the triplets moved into the new house in August 2001.\nAfter hiring a nanny, Charles and Cindy\'s relationship soon deteriorated. Cindy alleged that Charles\nbegan cultivating or renewing relationships with several other women; Charles admitted to having\nsex with another woman during a December 2001 trip to London, England. Cindy further alleged\nthat once their relationship had begun to deteriorate, Charles not only became dramatically less\ninvolved with the children, but also began withholding financial support from them. In April 2002,\nafter utility service to their home had been cut off, Cindy filed a petition in the juvenile court of\nWilliamson County to establish parentage and to obtain custody and child support.\nIn response, Charles argued that because Cindy lacks genetic connection to the children, she fails to\nqualify as the children\'s \xe2\x80\x9cmother\xe2\x80\x9d under Tennessee\'s domestic relations statutes. Contending that\nCindy thus lacks standing as a parent, Charles sought sole and exclusive custody of the triplets.\nCharles further denied that he had failed to support the children financially and also alleged that\nCindy was often absent from home on account of her part-time pursuit of a master\'s degree in\nbusiness administration. Cindy conceded that Charles increased his involvement with the children\nafter she filed suit. A pendente lite order required Charles to pay Cindy $3,000 per month for child\nsupport. Charles and Cindy continued to live together pending trial.\n326\n\n\x0cIn anticipation of trial, Charles and Cindy stipulated that: (1) eggs donated by an anonymous thirdparty female were fertilized with Charles\'s sperm and implanted in Cindy\'s uterus; (2) Cindy carried\nthe resulting embryos to term and gave birth to triplets; (3) based on genetic testing, Charles is the\nbiological father of all three children; (4) based on genetic testing, none of the children obtained\ngenetic material from Cindy; and (5) the genetic testing was valid.\nAfter a bench trial, the juvenile court ruled that Cindy had standing to bring a parentage action \xe2\x80\x9cas\nlegal mother of these three (3) minor children with all the rights, privileges, and obligations as if she\nwere their biological mother.\xe2\x80\x9d The juvenile court reasoned that Cindy \xe2\x80\x9cis the birth mother and\nalways had the intent to birth these children for herself and [Charles].\xe2\x80\x9d Having so decided, the\njuvenile court addressed the question of custody and support. The court concluded that in light of\nall the circumstances, Charles and Cindy were both good and caring parents. Based upon their\n\xe2\x80\x9ccomparative fitness ... as that affects the best interests of the minor children,\xe2\x80\x9d the court awarded\njoint custody with Cindy designated as the primary custodial parent. The court further ordered\ncertain visitation rights in favor of Charles and required him to continue to pay Cindy child support\nin the amount of $3,000 per month. Charles appealed as of right.\nThe Court of Appeals affirmed the judgments of the juvenile court. Concerning the question of\nCindy\'s parental status, the Court of Appeals held not only that Tennessee\'s paternity and adoption\nstatutes do not control this case, but also that Tennessee case law provides no directly controlling\nprecedent. Consequently, the intermediate court looked to case law from other jurisdictions for\nguidance. To determine as a matter of law whether Cindy is the \xe2\x80\x9cmother\xe2\x80\x9d of the triplets, the Court\nof Appeals adopted the intent test of Johnson v. Calvert, 5 Cal.4th 84, 19 Cal.Rptr.2d 494, 851 P.2d\n776 (1993), holding that \xe2\x80\x9cthis issue should be resolved by looking to the intent of the parties\xe2\x80\x9d and\nnot merely to genetics. The intermediate court determined that such an approach is consistent with\nthis Court\'s decision in Davis v. Davis, 842 S.W.2d 588 (Tenn.1992), where we emphasized the\nimportance of agreements between parties who choose to take advantage of modern techniques for\nassisted reproduction. Finding that Cindy was the intended mother and that no other party claimed\nmaternal status, the Court of Appeals held that Cindy is legally the children\'s mother. Alternatively,\nbased on principles of equity, the Court of Appeals held that Charles is estopped from challenging\nCindy\'s parental status. Having affirmed that Cindy enjoys parental status, the Court of Appeals also\naffirmed in all respects the juvenile court\'s judgments concerning comparative fitness, custody,\nvisitation, and child support.\nWe granted Charles\'s application for permission to appeal.\nII. Analysis\nIn this case, an unmarried, heterosexual couple-Charles and Cindy-had children by obtaining eggs\ndonated from an anonymous third-party female, fertilizing the eggs in vitro with Charles\'s sperm,\nand implanting the fertilized eggs in Cindy\'s uterus. Even though Cindy had no genetic connection\nto the three children to whom she eventually gave birth, she and Charles intended to rear the\nchildren together as mother and father. When the couple\'s relationship deteriorated, Cindy filed a\nparentage action seeking custody and child support from Charles. In response, Charles claimed that\nCindy had no standing as a parent because, lacking genetic connection to the children, she failed to\nqualify as a parent under Tennessee parentage statutes. On this basis, Charles sought sole and\nexclusive custody. The facts of this case thus present us with a question of first impression in\nTennessee: under such circumstances, who as a matter of law is the children\'s mother?\n327\n\n\x0cIt is helpful to explain further how the primary issue which we must decide is distinct from other\nkinds of maternity disputes. This case is distinguishable from maternity disputes within the context\nof \xe2\x80\x9ctraditional surrogacy,\xe2\x80\x9d such as the situation involved in In re Baby M, 109 N.J. 396, 537 A.2d\n1227 (1988), superseded by statute as recognized in In re Adoption of Children by G.P.B., 161 N.J. 396,\n736 A.2d 1277 (1999). In a traditional surrogacy arrangement, a surrogate \xe2\x80\x9cmother\xe2\x80\x9d gives birth to a\nchild by allowing her own eggs to be inseminated. A traditional surrogate mother thus has a genetic\nconnection to the child whom she nonetheless bears on behalf of others. In contrast, \xe2\x80\x9cgestational\nsurrogacy\xe2\x80\x9d involves in vitro fertilization of an intended \xe2\x80\x9cmother\'s\xe2\x80\x9d egg which is then implanted for\ngestation purposes in a genetically-unrelated surrogate \xe2\x80\x9cmother.\xe2\x80\x9d (citations omitted).\nOur case is closer in kind to \xe2\x80\x9cgestational surrogacy with egg donation\xe2\x80\x9d where a woman carries and\ngives birth to a child as a result of fertilization and implantation of a third-party donor\'s egg.\n(citation omitted). Under such circumstances, both the egg donor and the gestational carrier, or\ngestator, may perform the role of surrogate. A \xe2\x80\x9csurrogate\xe2\x80\x9d is generally defined as \xe2\x80\x9ca person\nappointed to act in place of another....\xe2\x80\x9d Webster\'s Third New Int\'l Dictionary of the English\nLanguage Unabridged 2302 (Philip Babcock Gove ed.1971). The egg donor is a surrogate insofar as\nshe provides eggs in place of and on behalf of another woman who cannot produce viable eggs. The\ngestator may also play the role of surrogate by carrying the child to term in place of and on behalf of\nanother.\nIn this case, however, an anonymous, surrogate egg donor provided eggs to a gestator (Cindy) who\ngave birth ostensibly for her own benefit. Whether Cindy may be classified as a gestational\n\xe2\x80\x9csurrogate\xe2\x80\x9d is thus problematic, for the question is unavoidably tied up with disputed legal\nquestions. Cindy would argue that she is not a gestational \xe2\x80\x9csurrogate\xe2\x80\x9d because she gestated and gave\nbirth to the children on behalf of both Charles as father and herself as mother. However, Charles\ncontends that Cindy was merely a gestational \xe2\x80\x9csurrogate\xe2\x80\x9d on behalf of Charles as the sole legal\nparent.\nA. The Question of Maternity\nIn addressing the question of maternity, we review findings of fact by the trial court de novo upon\nthe record, accompanied by a presumption of the correctness of the findings, unless the\npreponderance of the evidence is otherwise. See Tenn. R.App. P. 13(d); Union Carbide Corp. v.\nHuddleston, 854 S.W.2d 87, 91 (Tenn.1993). Our standard of appellate review for questions of law is\nde novo with no presumption of correctness. Presley v. Bennett, 860 S.W.2d 857, 859-60 (Tenn.1993).\n1. The Impact of Modern Reproductive Technology on the Legal Definition of Parenthood\n\xe2\x80\x9cHistorically, gestation proved genetic parentage beyond doubt, so it was unnecessary to distinguish\nbetween gestational and genetic mothers.\xe2\x80\x9d (citation omitted). However, recent developments in\nreproductive technology have caused a tectonic shift in the realities which underlie our legal\nconceptions of parenthood.\nThis technological fragmentation of the procreative process, insofar as it includes techniques for egg\nand sperm donation and preservation, has engendered a bewildering variety of possibilities which are\nnot easily reconciled with our traditional definitions of \xe2\x80\x9cmother,\xe2\x80\x9d \xe2\x80\x9cfather,\xe2\x80\x9d and \xe2\x80\x9cparent.\xe2\x80\x9d The degree\nto which current statutory law governs or fails to govern these realities provides the initial\n328\n\n\x0cframework for our analysis.\n2. The Limited Scope of Tennessee\'s Parentage Statutes\nParentage is an area of law governed primarily by statute. Unfortunately, Tennessee\'s parentage and\nrelated statutes do not contemplate many of the scenarios now made possible by recent\ndevelopments in reproductive technology. We now review Tennessee\'s statutory scheme. When\nconstruing statutes, we must \xe2\x80\x9cascertain and carry out the legislature\'s intent without unduly\nrestricting or expanding a statute\'s coverage beyond its intended scope.\xe2\x80\x9d Premium Fin. Corp. of Am. v.\nCrump Ins. Servs. of Memphis, Inc., 978 S.W.2d 91, 93 (Tenn.1998). \xe2\x80\x9cIn ascertaining the intent of the\nlegislature, this Court may look to \xe2\x80\x98the language of the statute, its subject matter, the object and\nreach of the statute, the wrong or evil which it seeks to remedy or prevent, and the purpose sought\nto be accomplished in its enactment.\xe2\x80\x99 \xe2\x80\x9d State v. Gilliland, 22 S.W.3d 266, 275 (Tenn.2000) (quoting\nState v. Lewis, 958 S.W.2d 736, 739 (Tenn.1997)).\nThe Tennessee Code provides a single cause of action for establishing parentage. Tenn. Code Ann. \xc2\xa7\n36-2-301 (2001). A court \xe2\x80\x9cmay enter an order of parentage upon the agreement of the mother and\nfather unless the court on its own motion orders genetic testing.\xe2\x80\x9d Tenn. Code Ann. \xc2\xa7 36-2-305(a)\n(2001). Alternatively, a complaint to establish parentage of a child may be brought by the child, the\n\xe2\x80\x9cchild\'s mother,\xe2\x80\x9d a \xe2\x80\x9cman claiming to be the child\'s father,\xe2\x80\x9d or the Tennessee Department of Human\nServices. Tenn. Code Ann. \xc2\xa7 36-2-305(b)(1).\nThe parentage statutes define \xe2\x80\x9cmother\xe2\x80\x9d as \xe2\x80\x9cthe biological mother of a child born out of\nwedlock.\xe2\x80\x9d Tenn. Code Ann. \xc2\xa7 36-2-302(4) (2001) (emphasis added). Similarly, \xe2\x80\x9cparent\xe2\x80\x9d is defined as\n\xe2\x80\x9cthe biological mother or biological father of a child, regardless of the marital status of the mother\nand father.\xe2\x80\x9d Tenn. Code Ann. \xc2\xa7 36-2-302(5) (emphasis added). The parentage statutes do not define\n\xe2\x80\x9cbiological mother.\xe2\x80\x9d Consequently, we adduce definitions provided by Tennessee\'s adoption\nstatutes. Statutes in pari materia-that is, statutes relating to the same subject or having a common\npurpose-are to be construed together. Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn.1994).\nThe adoption statutes define \xe2\x80\x9cbiological parents\xe2\x80\x9d as \xe2\x80\x9cthe woman and man who physically or\ngenetically conceived the child.\xe2\x80\x9d Tenn. Code Ann. \xc2\xa7 36-1-102(10) (2001) (emphasis added). Code\nsection 36-1-102(10) focuses solely on conception, making no reference to giving birth. The verb\n\xe2\x80\x9cconceived\xe2\x80\x9d is modified by two disjunctively related adverbs. On the one hand, \xe2\x80\x9cphysically\xe2\x80\x9d is an\nadverb meaning \xe2\x80\x9cin a physical manner\xe2\x80\x9d and \xe2\x80\x9cin respect to the body,\xe2\x80\x9d Webster\'s Third New Int\'l\nDictionary of the English Language Unabridged 1707, and which thus means in a manner which\nrelates to or stands \xe2\x80\x9cin accordance with the laws of nature, \xe2\x80\x9did. at 1706 (defining \xe2\x80\x9cphysical\xe2\x80\x9d). As\nused in the statute, \xe2\x80\x9cphysically ... conceived\xe2\x80\x9d therefore means having caused conception through\nnatural means (coitus) as opposed to artificial means.\nOn the other hand, \xe2\x80\x9cgenetically conceived\xe2\x80\x9d means having caused conception in a manner pertaining\nto \xe2\x80\x9cgenetic makeup and phenomena.\xe2\x80\x9d Id. at 946 (defining \xe2\x80\x9cgenetics\xe2\x80\x9d). Genetic conception thus\nentails the contribution of one\'s genes to a child. By providing for genetic conception in addition to\nphysical or natural conception, Code section 36-1-102(10) implicitly accounts for genetic procreation\nvia technological assistance. If practicable, a statute is to be construed so that its component parts\nare reasonably consistent. Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968). \xe2\x80\x9cEvery\nword used is presumed to have meaning and purpose, and should be given full effect if so doing\ndoes not violate the obvious intention of the Legislature.\xe2\x80\x9d Id.\n329\n\n\x0cWe agree with the Court of Appeals that Cindy falls outside the statutory scope of the parentage and\nadoption statutes, which do not expressly control the circumstances of this case. It is appropriate to\nconstrue the parentage and adoption statutes narrowly insofar as this case involves such\nfundamental constitutional rights as parenthood and the right to procreate. See Hawk v. Hawk, 855\nS.W.2d 573, 578-79 (Tenn.1993); Davis v. Davis, 842 S.W.2d 588, 600-01 (Tenn.1992). Further, we\nrefrain from \xe2\x80\x9cspeculating about the significance of provisions which are not included in [a] statute,\xe2\x80\x9d\nfinding it more effective to \xe2\x80\x9cconsider the words actually used.\xe2\x80\x9d Fletcher v. State, 951 S.W.2d 378, 382\n(Tenn.1997).\nFirst, although the definition of \xe2\x80\x9cbiological parents\xe2\x80\x9d in Tennessee Code Annotated section 36-1102(10) implicitly accounts for assisted conception by distinguishing between physical (natural) and\ngenetic conception, see supra, the adoption and parentage statutes do not further elaborate upon\nthis distinction.\nSecond, even the definition of \xe2\x80\x9csurrogate birth\xe2\x80\x9d in Tennessee Code Annotated section 36-1102(48)(A) (2001) assumes the existence of a marital relationship between the intended parents on\nwhose behalf the surrogate carries a child. See Tenn. Code Ann. \xc2\xa7 36-1-102(48)(A)(i) (\xe2\x80\x9cThe union of\nthe wife\'s egg and the husband\'s sperm which are then placed in another woman who carries the\nfetus to term and who, pursuant to a contract, then relinquishes all parental rights....\xe2\x80\x9d) (emphasis\nadded); \xc2\xa7 36-1-102(48)(A)(ii) (The gestational surrogate \xe2\x80\x9cshall relinquish the child to the biological\nfather and the biological father\'s wife.\xe2\x80\x9d) (emphasis added). As the Court of Appeals correctly\npointed out, this definition of surrogate birth is \xe2\x80\x9cexpressly based on the predicate that the surrogate\nentered into a contract by which she relinquished all parental rights.\xe2\x80\x9d Moreover, this statutory\ndefinition assumes that the intended mother is a woman other than the gestator. However, in this\ncase not only was there no marriage or surrogacy contract, there is also no evidence in the record to\nsuggest that Cindy gave birth on behalf of anyone but Charles and herself.79\nThird, the parentage statutes generally fail to contemplate dispute over maternity. For example, the\nrebuttable presumptions of parentage provided in Tennessee Code Annotated section 36-2-304\n(2001) focus exclusively on establishing paternity. See Tenn. Code Ann. \xc2\xa7 36-2-304(a) (\xe2\x80\x9cA man is\nrebuttably presumed to be the father of a child if ....\xe2\x80\x9d) (emphasis added). The statutes also employ\nthe term \xe2\x80\x9cmother\xe2\x80\x9d in a way that assumes we already know who the \xe2\x80\x9cmother\xe2\x80\x9d is, see, e.g. Tenn.\nCode Ann. \xc2\xa7\xc2\xa7 36-2-303, 36-2-305(b)(1)(B) (2001), whereas references to \xe2\x80\x9cfather\xe2\x80\x9d include such\nphrases as \xe2\x80\x9ca man claiming to be the child\'s father,\xe2\x80\x9d Tenn. Code Ann. \xc2\xa7 36-2-305(b)(1)(C), \xe2\x80\x9calleged\nfather,\xe2\x80\x9d Tenn. Code Ann. \xc2\xa7 36-2-305(b)(4), and \xe2\x80\x9cputative father,\xe2\x80\x9d Tenn. Code Ann. \xc2\xa7 36-2-318\n(2001). Similarly, the statute providing for an order of parentage is concerned solely with the\nestablishment of paternity. See Tenn. Code Ann. \xc2\xa7 36-2-311(a) (2001) (\xe2\x80\x9cUpon establishing parentage,\nthe court shall make an order declaring the father of the child.\xe2\x80\x9d) (emphasis added). The statutes lack\ncorresponding language concerning the establishment of maternity.\nThe legislative history of the parentage statutes reinforces our conclusion that they fail to\nWe note that the surrogate birth statute itself reflects a neutral legislative stance as to the validity and enforceability of\nsurrogacy arrangements. See Tenn. Code Ann. \xc2\xa7 36-1-102(48)(C) (\xe2\x80\x9cNothing herein shall be construed to expressly\nauthorize the surrogate birth process in Tennessee unless otherwise approved by the courts or the general assembly.\xe2\x80\x9d).\nWe express no opinion here on that issue.\n79\n\n330\n\n\x0ccontemplate or to control the circumstances of this case. Where the plain language of a statute does\nnot clearly resolve an issue, it is appropriate to consider the history and purpose of legislation in\norder to ascertain legislative intent. See Lavin v. Jordon, 16 S.W.3d 362, 365-66 (Tenn.2000).\nIn 1997, the Tennessee General Assembly completely overhauled the statutes concerning paternity\nand legitimation. See 1997 Tenn. Pub. Acts ch. 477. The primary purpose of this change was to\nstreamline and to simplify the formerly separate causes of action for paternity and legitimation by\ncombining them into a single parentage action. See Tenn. Code Ann. \xc2\xa7\xc2\xa7 36-2-101 to -115 (1996)\n(paternity) and \xc2\xa7\xc2\xa7 36-2-201 to -210 (1996) (legitimation), repealed by 1997 Tenn. Pub. Acts ch. 477\n(codified at Tenn. Code Ann. \xc2\xa7\xc2\xa7 36-2-301 to -322 (2001)); Tape H-C & FA # 1 (Tennessee House\nof Representatives Children and Family Affairs Committee Mar. 26, 1997) (\xe2\x80\x9cThis bill is an effort to\ntry to revise our statutes and bring us into the twentieth century and develop one system for\ndetermining and establishing the parentage of children born out of wedlock.\xe2\x80\x9d) (statement of Rep.\nKim McMillan). The 1997 legislation was also designed to correct a particular constitutional infirmity\nof the prior statutes.\nSignificantly, the legislative history shows that the current parentage statutes were not designed to\ncontrol questions of parentage where sperm or egg donation is involved. In response to the\nobservation that the new parentage statutes could potentially allow a sperm donor to file a parentage\nclaim, Mr. Steve Cobb stated as follows:\nI can tell you that the clear intention, discussed intention, of this [bill] was not to deal with\nsperm donors at all.... [W]e wanted to put that off for another day.... The intent, and it\nshould be stated by the sponsor in a colloquy on the floor if necessary, is not to affect that\nissue at all.\nTape S-Jud. # 4 (Tennessee Senate Judiciary Committee May 13, 1997). Concerning the question of\nmaternity where egg donation is involved, the legislative history contains no indication that this\nmatter was ever contemplated as a potential issue.\nIn sum, we conclude that Tennessee\'s parentage and related statutes do not provide for or control\nthe circumstances of this case. Contrary to the position taken by the dissent which would restrict the\nbasis for legal maternity to genetic consanguinity alone, we determine that these statutes simply do\nnot apply to all conceivable parentage determinations. In this regard, we agree with the Court of\nAppeals.\n3. Tests for Legal Maternity in Other Jurisdictions\nIn the absence of express guidance from the legislature, the Court of Appeals looked to case law\nfrom other jurisdictions to resolve the dispute of maternity in this case. Among the few jurisdictions\nwhich have addressed cases like this one, where a gestational carrier implanted with donated eggs\nseeks parental status of the resulting children and where legislation does not clearly resolve the\nmatter, two tests for maternity have arisen. Some courts have focused on intent, holding that under\nsuch circumstances the intended \xe2\x80\x9cmother\xe2\x80\x9d is to be deemed the legal mother. See, e.g., Johnson v.\nCalvert, 5 Cal.4th 84, 19 Cal.Rptr.2d 494, 851 P.2d 776 (1993); In re Marriage of Buzzanca, 61\nCal.App.4th 1410, 72 Cal.Rptr.2d 280 (1998); McDonald v. McDonald, 196 A.D.2d 7, 608 N.Y.S.2d\n477 (N.Y.App.Div.1994). Other courts have instead focused on genetics and gestation, holding that\ngenetic connection to the children is of paramount importance in determining legal maternity. See,\n331\n\n\x0ce.g., Culliton v. Beth Israel Deaconess Med. Ctr., 435 Mass. 285, 756 N.E.2d 1133 (2001); Belsito v. Clark,\n67 Ohio Misc.2d 54, 644 N.E.2d 760 (1994).\nThe intent test has developed primarily in California. In Johnson, a married couple was unable to have\nchildren naturally because the wife had undergone a hysterectomy, yet the wife could still produce\neggs. 851 P.2d at 778. The couple entered into a surrogacy agreement with a third-party female\nwho agreed to give birth to a child on their behalf in exchange for $10,000 and other consideration.\nOne of the wife\'s eggs was fertilized with her husband\'s sperm and was successfully implanted in the\nsurrogate\'s uterus. However, when the relationship between the couple and the surrogate\ndeteriorated, litigation over maternity and custody ensued. Id. Under California\'s version of the\nUniform Parentage Act, both genetic consanguinity and giving birth were equally cognizable bases\nfor establishing maternity. Id. at 780-81. The Court declined to recognize two legal mothers. Id. at\n781 n. 8. In order to break the tie, the California Supreme Court held that when gestation and\ngenetic consanguinity \xe2\x80\x9cdo not coincide in one woman, she who intended to procreate the child-that\nis, she who intended to bring about the birth of the child that she intended to raise as her own-is the\nnatural mother under California law.\xe2\x80\x9d Id. at 782.\nThe genetic test has been set forth most thoroughly by the Ohio Court of Common Pleas in Belsito.\nIn Belsito, a married couple wanted children, and the wife could produce eggs but could not sustain a\npregnancy. 644 N.E.2d at 760-61. By agreement, one of the wife\'s eggs was fertilized with the\nhusband\'s sperm and then implanted in the uterus of a gestational surrogate (the wife\'s sister).\nWithout objection from the surrogate, the couple sought a declaratory judgment of maternity and\npaternity. Id. at 761-62. Like California, Ohio had adopted a version of the Uniform Parentage Act\nwhich provided that \xe2\x80\x9cmaternity can be established by identifying the natural mother through the\nbirth process or by other means, including DNA blood tests,\xe2\x80\x9d as provided by statute. Id. at 763\n(citing Ohio Rev.Code Ann. ch. 3111). Also declining to recognize two legal mothers, id., the court\napplied a two-stage analysis for establishing maternity. First, if the male and female genetic providers\nhave not waived parental rights, they must be declared the legal parents. Second, if the female\ngenetic provider has waived her parental rights, then the gestator is the legal mother. See id. at 767.\nOn this basis, the court held that the married couple, as the child\'s genetic progenitors, were the\nlegal parents. Id. at 767.\nSignificantly, Tennessee\'s statutory framework for establishing maternity differs markedly from the\nCalifornia and Ohio statutes under consideration in Johnson and Belsito. Compare Tenn. Code Ann. \xc2\xa7\n36-2-302(4) (defining \xe2\x80\x9cmother\xe2\x80\x9d as \xe2\x80\x9cthe biological mother of a child born out of wedlock\xe2\x80\x9d) and\nTenn. Code Ann. \xc2\xa7 36-1-102(10) (defining \xe2\x80\x9cbiological parents\xe2\x80\x9d as \xe2\x80\x9cthe woman and man who\nphysically or genetically conceived the child\xe2\x80\x9d) with Cal. Civ.Code \xc2\xa7 7003(1) (West 1983) (\xe2\x80\x9cThe\nparent and child relationship may be established ... [b]etween a child and the natural mother ... by\nproof of her having given birth to the child, or under this part.\xe2\x80\x9d), repealed by 1992 Cal. Stat. c. 162\n(A.B.2650), \xc2\xa7 4 and Ohio Rev.Code Ann. \xc2\xa7 3111.02 (West 1992) (\xe2\x80\x9cThe parent and child relationship\nbetween a child and the child\'s natural mother may be established by proof of her having given birth\nto the child or pursuant to [other sections of the Ohio Revised Code].\xe2\x80\x9d). Consequently, neither\nCalifornia\'s intent test nor Ohio\'s genetic test is strictly apposite to our statutory scheme.\nFurther, both the intent test and the genetic test suffer from inadequacies. For example, in Johnson\nthe California Supreme Court crafted an unnecessarily broad rule which could afford maternal status\neven to a woman who failed to qualify under either of California\'s two statutory bases for maternity.\nSee Johnson, 19 Cal.Rptr.2d 494, 851 P.2d at 783. According to Belsito, the intent formulation of\n332\n\n\x0cJohnson has \xe2\x80\x9cdiscarded both genetics and birth as the primary means of identifying the natural\nmaternal parent,\xe2\x80\x9d Belsito, 644 N.E.2d at 764, and provides for, \xe2\x80\x9cin effect, a private adoption process\nthat is readily subject to all the defects and pressures of such a process,\xe2\x80\x9d id. at 766. In Tennessee,\nunlicensed and unregulated adoption is statutorily prohibited and subject to criminal penalties. See\nTenn. Code Ann. \xc2\xa7\xc2\xa7 36-1-108 to -109 (2001).\nHowever, the genetic test of Belsito also has significantly broad implications. In the event that a\ndispute were to arise between an intended mother who had obtained eggs from a third-party donor\nand a gestational surrogate in whom the eggs had been implanted, the genetic test would implicitly\ninvalidate any surrogacy agreement. The genetic test could also have practical effects similar to the\n\xe2\x80\x9cadoption-default model\xe2\x80\x9d criticized by In re Marriage of Buzzanca, see 72 Cal.Rptr.2d at 289, in that an\nintended \xe2\x80\x9cmother\xe2\x80\x9d who employs techniques for assisted reproduction including egg donation would\nby default have to submit to government-controlled adoption procedures to attain a secure legal\nstatus as \xe2\x80\x9cmother.\xe2\x80\x9d Policy-wise, the requirement of such regulation may or may not be sound.\nConsequently, we decline to adopt either the intent test or the genetic test as a general rule for\nresolving this case. We thus vacate the adoption of the intent test of Johnson by the courts below.\n4. Factors for Establishing Legal Maternity\nIn light of the foregoing analysis, we deem it appropriate to decide this case on particularly narrow\ngrounds.\nTherefore, in resolving this case we focus closely on its particular facts. Charles and Cindy, an\nunmarried couple, wanted to start a family and agreed to rear a child together permanently as father\nand mother, not suspecting that their own relationship would eventually fall apart. Given Cindy\'s\nage, they agreed to fertilize anonymously donated eggs with Charles\'s sperm and to implant the\nfertilized eggs in Cindy\'s uterus. Before the procedure, Charles and Cindy executed the Recipient\nConsent in which Charles acknowledged Cindy\'s status as \xe2\x80\x9cmother\xe2\x80\x9d and in which Cindy agreed to\naccept all the responsibilities of parenthood:\nI, Cindy (wife), understand that the child(ren) conceived by this method will not have my genetic\nmaterial, but will have that of the oocyte [egg] donor and my husband [sic]. However, regardless of\nthe outcome, I will be the mother of any child(ren) born to me as a result of egg donation and\nhereby accept all the legal responsibilities required of such a parent.\nCindy was impregnated and carried not just one but three fetuses to term. After a complicated\npregnancy, she gave birth via caesarian section to triplets. Charles allowed Cindy to be named the\n\xe2\x80\x9cmother\xe2\x80\x9d on the children\'s birth certificates. After the children were born, Charles and Cindy lived\ntogether in an arrangement where both Charles and Cindy performed the role of parent.\nHaving recounted these events, we now discuss the relevant factors which we consider to be\nsignificant for deciding this case.\ni. Genetics\nBoth statute and sound policy support genetics as an important factor in establishing legal maternity.\nHuman reproduction as we now know it cannot take place without the involvement of genetic\n333\n\n\x0cmaterial. As analyzed above, Tennessee\'s domestic relations statutes provide for the establishment of\nlegal maternity based on genetic consanguinity. See \xc2\xa7\xc2\xa7 36-2-302(4) (defining \xe2\x80\x9cmother\xe2\x80\x9d as \xe2\x80\x9cthe\nbiological mother of a child born out of wedlock\xe2\x80\x9d), 36-1-102(10) (defining \xe2\x80\x9cbiological parents\xe2\x80\x9d as\n\xe2\x80\x9cthe woman and man who physically or genetically conceived the child\xe2\x80\x9d). In emphasizing genetics,\nBelsito recognizes and honors an individual\'s decision to procreate or to refrain from procreating. 644\nN.E.2d at 766 (\xe2\x80\x9cThe procreation of a child, that is, the replication of the unique genes of an\nindividual, should occur only with the consent of that individual.\xe2\x80\x9d(citing Davis, 842 S.W.2d at 588)).\nAs we held in Davis, such decisions enjoy constitutional protection. 842 S.W.2d at 600-01.\nHowever, our recognition in Davis of the constitutional right to control the disposition of one\'s\ngenetic material does not mean that Davis stands for the proposition that genetics must be\nparamount in all parentage determinations. In cases such as this one, where a woman has become\nintimately involved in the procreation process even though she has not contributed genetic material,\nfactors other than genetics take on special significance.\nii. Intent\nBefore the children\'s birth, both Cindy and the genetic father, Charles, voluntarily demonstrated the\nbona fide intent that Cindy would be the children\'s legal mother, and they agreed that Cindy would\naccept all the legal responsibility as well as the legal rights of parenthood. We consider the intent to\ntake on both parental rights and responsibilities as one important factor among others for resolving\nthis controversy.\nAlthough our decision in Davis does not control this case, we agree with the Court of Appeals that it\nis nonetheless instructive. In Davis, this Court had to decide whether a man could prevent donation\nand implantation against his will of a preembryo (an early-stage fertilized egg) containing his genes.\n842 S.W.2d at 589-90. We held that just as an individual enjoys a constitutionally-protected right to\nprocreate, an individual also has a similar right to avoid procreation. Id. at 600-01. We concluded\nthat disputes over the control of preembryos are to be resolved first by looking to the agreement of\nthe progenitors and second, in the absence of agreement, by weighing the relative interests of the\nmale and female providers of reproductive cells. Id. at 604. Davis thus underscored the importance\nof intent and agreement with respect to the disposition of an individual\'s reproductive and genetic\nmaterial.\nAlthough Tennessee\'s parentage statutes recognize maternity on the basis of genetics, see\nTenn.Code Ann. \xc2\xa7\xc2\xa7 36-1-102(10), 36-2-302(4), as we have seen that the parentage statutes do not\nexpressly control this case and thus do not necessarily confine the establishment of legal maternity\nto genetics alone. To the contrary, we determine that taking intent into consideration as a factor is\nconsistent with policy implicit in Tennessee\'s domestic relations statutes.\nSignificantly, the artificial insemination statute of Tennessee Code Annotated section 68-3-306\n(2001) supports the consideration of intent as a factor for establishing legal maternity. This section is\nentitled \xe2\x80\x9cBirth from artificial insemination\xe2\x80\x9d and is contained in the part of the Tennessee Code\nwhich addresses vital records. It provides as follows: \xe2\x80\x9cA child born to a married woman as a result\nof artificial insemination, with consent of such married woman\'s husband, is deemed to be the\nlegitimate child of the husband and wife.\xe2\x80\x9d Tenn. Code Ann. \xc2\xa7 68-3-306. Like the parentage statutes,\nCode section 68-3-306 does not expressly govern this case because the statute contemplates and\nprovides for an agreement within the context of marriage; Charles and Cindy were not married, and\n334\n\n\x0cin any event there is now a lack of consent. Notwithstanding, it is significant that Code section 68-3306 confers parental status on a husband even though the child conceived in his wife via artificial\ninsemination is not necessarily genetically related to him. The artificial insemination statute thus\nreflects a policy which favors taking into account intent in establishing parentage when technological\nassistance is involved.\niii. Gestation\nCindy became pregnant and gave birth to the children with the intent of raising them as her own. As\nmentioned above, historically gestation \xe2\x80\x9cproved genetic parentage beyond doubt\xe2\x80\x9d and thus was\nconclusive of maternity. The common law thus has presumed that the birth mother is the legal\nmother of the child. It is only quite recently that modern technology has made it possible to\nseparate and to distribute among multiple persons or environments the genetic and gestational roles.\nWe consider gestation as another important factor in determining legal maternity in this case.\nTo be sure, as discussed above, genetics remains an irreplaceable component of human\nreproduction, and as such genetic consanguinity is and should be particularly important to parentage\ndeterminations. And as our analysis above has shown, Tennessee\'s domestic relations statutes\nexpressly account for genetics in parentage determinations. See Tenn. Code Ann. \xc2\xa7\xc2\xa7 36-1-102(10), \xc2\xa7\n36-2-302(4).\nHowever, as our analysis above has also shown, Tennessee\'s parentage and related statutes were\nsimply not designed to control the circumstances of this case. To restrict legal maternity to genetic\nconsanguinity alone where, as in this case, the genetic \xe2\x80\x9cmother\xe2\x80\x9d is an egg donor who has waived her\nparental rights and who has been and remains permanently anonymous would result in the absurdity\nof children having, for all practical purposes, no legal mother. A child\'s knowledge that he or she has\nan anonymous and inaccessible mother somewhere in the world would provide only cold comfort,\nand demanding such a result in cases like this one could hardly promote the best interests of\nchildren. \xe2\x80\x9cCourts must presume that the Legislature did not intend an absurdity and adopt, if\npossible, a reasonable construction which provides for a harmonious operation of the laws.\xe2\x80\x9d Fletcher,\n951 S.W.2d at 382 (citing Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn.1995) and Epstein v. State, 211\nTenn. 633, 366 S.W.2d 914 (1963)).\nWe further observe that in this case the genetic \xe2\x80\x9cmother\xe2\x80\x9d has donated her eggs to another and has\ncorrespondingly waived her parental rights, thereby relinquishing her status as legal mother. As\nBelsito correctly concludes, \xe2\x80\x9ca genetic test cannot be the only basis for determining who will assume\nthe status of legal parent.\xe2\x80\x9d 644 N.E.2d at 767.\nAlthough giving birth is conspicuously absent from Tennessee\'s parentage statutes, as discussed\nabove, there is no indication that the General Assembly sought to exclude it as a basis for legal\nmaternity or even sought to decide questions of maternity at all. In this regard, the artificial\ninsemination statute is once again significant. In addition to recognizing paternity where artificial\ninsemination is involved, Tennessee Code Annotated section 68-3-306 confers parental status on a\nwife when she gives birth to a child as the result of artificial insemination. This statute displays a\npolicy which favors recognizing gestation and giving birth as a basis for legal maternity.\nAccordingly, we conclude that sound policy and common sense favor recognizing gestation as an\nimportant factor for establishing legal maternity. \xe2\x80\x9cAlthough current technology allows the separation\n335\n\n\x0cbetween gestation and genetic contribution, it does not follow that gestation is now a less important\npart of parenthood.\xe2\x80\x9d (citation omitted). In our view, the dissent accords too little significance to\ngestation as a factor for deciding this controversy.\niv. The Absence of Controversy Between the Gestator and the Genetic \xe2\x80\x9cMother\xe2\x80\x9d\nAnother factor to consider in resolving this case is the nature of the controversy. Here we are not\nfaced with a controversy between a birth \xe2\x80\x9cmother\xe2\x80\x9d and a genetic \xe2\x80\x9cmother\xe2\x80\x9d where the genetic and\ngestational roles have been separated and distributed among two women. In this case, the genetic\n\xe2\x80\x9cmother\xe2\x80\x9d has fully waived her parental rights and remains anonymous. Nor is this a case involving a\ndispute between a traditional or gestational surrogate and a genetically-unrelated intended \xe2\x80\x9cmother\xe2\x80\x9d\nwho wishes to raise the child as her own. Rather, Cindy became pregnant and gave birth to triplets\non her own behalf, and the sole dispute is between her and the genetic father, Charles. The other\nkinds of conflicts present different questions and ones which would be inappropriate for us to\ndecide here. Instead, we limit our holding today to cases where there is no controversy between the\ngestator and the genetic \xe2\x80\x9cmother.\xe2\x80\x9d\n5. Establishing Legal Maternity in This Case\nDeciding this case narrowly based on its particular facts, we affirm on separate grounds the holding\nof the courts below that Cindy is the legal mother. Our holding that Cindy is the legal mother of\nC.K.G., C.A.G., and C.L.G. with all the legal rights and responsibilities of parenthood is based on\nthe following factors. First, prior to the children\'s birth, both Cindy, the gestator, and Charles, the\ngenetic father, voluntarily demonstrated the bona fide intent that Cindy would be the children\'s legal\nmother and agreed that Cindy would accept the legal responsibility as well as the legal rights of\nparenthood. Second, Cindy then became pregnant, carried to term, and gave birth to the three\nchildren as her own. Third, this case does not involve a controversy between a gestator and a female\ngenetic progenitor where the genetic and gestative roles have been separated and distributed among\ntwo women, nor does this case involve a controversy between a traditional or gestational surrogate\nand a genetically-unrelated intended mother; our holding today is not designed to control such\ncontroversies. Even though Cindy lacks genetic connection to the triplets, in light of all the factors\nconsidered we determine that Cindy is the children\'s legal mother. We further conclude that in light\nof the factors considered, Charles\'s genetic paternity does not give him a parental status superior to\nthat of Cindy.\nHaving thus concluded that Cindy is the children\'s legal mother, the question of estoppel is moot,\nand we vacate the holding of the Court of Appeals that Charles is estopped to deny Cindy\'s maternal\nstatus.\nIII. Conclusion\nWe conclude that Tennessee\'s parentage statutes neither provide for nor contemplate the\ncircumstances of this case, where an unmarried couple has employed techniques for assisted\nreproduction involving third-party egg donation to produce children for their own benefit and\nwhere dispute has arisen over the genetically unrelated gestator\'s legal status as mother. Although in\nsome jurisdictions courts have fashioned widely applicable tests for maternity where techniques for\nassisted reproduction are involved, we decline to adopt as a general rule either the intent test or the\ngenetic test. Consequently, we vacate the adoption of the intent test by the courts below.\n336\n\n\x0cInstead we affirm on separate and narrower grounds the holding of the courts below that Cindy is\nthe legal mother of the children C.K.G., C.A.G., and C.L.G. with all the rights and responsibilities of\nparenthood. Our holding in this regard depends on the following factors: (1) prior to the children\'s\nbirth, both Cindy as gestator and Charles as the genetic father voluntarily demonstrated the bona\nfide intent that Cindy would be the children\'s legal mother and agreed that she would accept the\nlegal responsibility as well as the legal rights of parenthood; (2) Cindy became pregnant, carried to\nterm, and gave birth to the children as her own; and (3) this case does not involve a controversy\nbetween a gestator and a female genetic progenitor where the genetic and gestative roles have been\nseparated and distributed among two women, nor does this case involve a controversy between a\ntraditional or gestational surrogate and a genetically-unrelated intended mother. In our view, given\nthe far-reaching, profoundly complex, and competing public policy considerations necessarily\nimplicated by the present controversy, crafting a broadly applicable rule for the establishment of\nmaternity where techniques for assisted human reproduction are involved is more appropriately\naddressed by the Tennessee General Assembly.\nHaving concluded that Cindy is the children\'s legal mother, the question of estoppel is moot, and we\nvacate the holding of the Court of Appeals that Charles is estopped to deny Cindy\'s maternal status.\nHowever, we affirm in full the judgments of the juvenile court and Court of Appeals concerning\ncomparative fitness, custody, child support, and visitation. Costs of this appeal are taxed to the\nappellant, Charles, for which execution may issue if necessary.\n6.6.2\n\nThe Possibility of Inheriting Through The Woman\n\nMatter of Petition Of Successor Trustees for the Construction of three inter vivos trusts\ncreated in 1959 f/b to the Issue of K. Doe, C. Doe, and M. , 793 N.Y.S. 2d 878 (2005).\nPREMINGER, J.\nIn creating trusts for the benefit of the issue of his eight children, the settlor required that\n\xe2\x80\x9cadoptions shall not be recognized.\xe2\x80\x9d One of the settlor\'s daughters (\xe2\x80\x9cK. Doe\xe2\x80\x9d) and her husband\nbecame the parents of fraternal twins by virtue of a surrogacy arrangement, using an anonymous\ndonor egg, fertilized in vitro with the sperm of K. Doe\'s husband, and carried to term by an\nunrelated surrogate mother. Petitioners, successors trustees, bring this construction proceeding to\ndetermine whether the settlor\'s exclusion of \xe2\x80\x9cadoptions \xe2\x80\x9cexcludes these children as beneficiaries.\nThe eight identical inter vivos trust instruments, created by the settlor, an attorney, in 1959, required\nthat the net income of each trust be paid to such charitable organizations as appointed by each child\nuntil September 1, 1979, after which date the net income of each trust was to be paid to the \xe2\x80\x9cissue\xe2\x80\x9d\nor \xe2\x80\x9cdescendants\xe2\x80\x9d of each child. As of December 31, 2001, the issue of five of the settlor\'s eight\nchildren were receiving income from the trusts. The income from the remaining three trusts was\nbeing distributed in equal shares per capita to the fourteen then-living grandchildren of the settlor as\nspecified by the trust instruments.\nAs to the twins\' birth, K. Doe and her husband arranged for a genetically unrelated surrogate mother\nin the state of California to be impregnated with the eggs of an anonymous donor fertilized in vitro\nby K. Doe\'s husband\'s sperm. After the twins\' birth, with consent of the surrogate mother, K. Doe\n337\n\n\x0cand her husband obtained a Judgment of Parental Relationship from the Superior Court of\nCalifornia to establish them as the twins\' sole legal parents.\nIf the twins are not excluded by the terms of the trust prohibiting recognition of adopted children,\nthey are: 1) income beneficiaries and presumptive remaindermen of the trust created for benefit of\nthe issue of their mother, K. Doe; 2) eligible to receive their per capita share of the income of trusts\nfor two of the settlor\'s issue who currently have no issue; 3) permissible beneficiaries of the exercise\nof the lifetime power of appointment reserved to the trustees to make discretionary principal\ndistributions to the settlor\'s grandchildren; and 4) permissible beneficiaries of the testamentary\npowers of appointment given to K. Doe and her seven siblings over their respective remainders.\nThe Court has appointed a guardian at litem for the twins, who argues they should be included, as\nwell as one for the infant grandchildren of the settlor whose interests in the trusts will be affected by\nthis decision, who argues that they should not.\nIn a construction proceeding, the intent of the settlor controls. (In re Balsam\'s Trust, 58 Misc.2d 672,\n677, 296 N.Y.S.2d 969; see Matter of Buechner, 226 N.Y. 440, 443, 123 N.E. 741). The reproductive\ntechnologies involved in this case in vitro fertilization and gestational surrogacy were established in\nthe 1970s, well after these trusts were settled. It is unlikely that the settlor\'s views of these methods\nof reproduction can be discovered. Even if the court were to consider the trusts ambiguous and\nallow extrinsic evidence on this question, the petitioning trustees candidly state that they know of\nnone. This construction question is thus confined to the language employed in the trusts.\nLooking at that language, one interpretation of the settlor\'s exclusion of \xe2\x80\x9cadoptions\xe2\x80\x9d is that he\nintended to exclude all non-blood relations. However, in examining, as the court must, the\ndocument as a whole (see Matter of Fabbri, 2 N.Y.2d 236, 240, 159 N.Y.S.2d 184, 140 N.E.2d 269), it\nis clear that was not his intent. The settlor provided a means for spouses, non-blood relatives, to\ntake under the trusts. Upon the death of a child, the trustees are directed to distribute any remaining\ntrust principal to the settlor\'s then-living issue, other than the estate of the child, and the spouse of\nsuch issue in such proportions as the child may designate by will. In default of the child\'s exercise of\nthe testamentary power of appointment, the remainder is to be distributed to the issue of the child,\nor in default of such issue, to the settlor\'s issue per stirpes. Although the possibility of a non-blood\nrelative\'s taking a portion of the remainder depends on an affirmative exercise of the power of\nappointment by a child, the settlor contemplated that his non-blood relatives might take a portion of\nthe trust remainder. Similarly, certain trustees are permitted in their discretion to appoint principal to\n\xe2\x80\x9cgrandchildren and more remote issue of the Settlor and spouses of such grandchildren and more\nremote issue.\xe2\x80\x9d Thus, under the trusts, there is the possibility of a non-blood relation being a\nbeneficiary.\nThis is the main language in the trusts that bears on this question, and nothing else suggests that the\ncourt should extend \xe2\x80\x9cadoptions\xe2\x80\x9d to include the reproductive technologies at issue in this case. When\nthe settlor excluded \xe2\x80\x9cadoptions,\xe2\x80\x9d it cannot be said that he intended to exclude all means of assisted\nreproduction; such means of assisted reproduction were not then in existence, and no language in\nthe trusts anticipates technologies relating to birth that may be developed in the future.\nWith some evidence in the trust documents that the settlor did not intend to exclude all non-blood\nrelations, the court turns to the question of whether the California judgment should be considered\nan adoption, and if not, whether New York should afford it full faith and credit.\n338\n\n\x0cUnder California law, a judgment of parental relationship is entirely distinct from an adoption\nproceeding, and the two are governed by different divisions of the California Family Code. The\nJudgment of Parental Relationship obtained by K. Doe and her spouse was entered in a proceeding\nbrought under sections 7630 and 7650 of Division 12 of the California Family Code, which govern\nthe establishment of parental relationships, not adoptions. The judgment declared K. Doe and her\nhusband to be \xe2\x80\x9cthe sole and legal parents\xe2\x80\x9d of the twins and the surrogate mother and her husband\nto be \xe2\x80\x9cstrangers in blood\xe2\x80\x9d to the twins. The judgment ordered amendment of the twins\' birth\ncertificates to list K. Doe as mother and her husband as father. In contrast, California adoptions are\ngoverned by division 13 of the California Family Code. California treats these two methods of\nestablishing parental rights as distinct in nature. A California gestational surrogacy arrangement,\nwhere, as here, the surrogate mother is implanted with an egg fertilized in vitro, is not subject to the\nadoption statutes (Johnson v. Calvert, 5 Cal.4th 84, 96, 19 Cal.Rptr.2d 494, 851 P.2d 776, 783-784\n[Cal.1993]).\nIt is clear that in California the twins were not adopted, and recognizing this result in New York is\nappropriate. Surrogacy is not the functional equivalent of adoption. For example, in gestational\nsurrogacies, as here where the birth mother is implanted with a fertilized ovum genetically unrelated\nto her the basic question of who should be considered the natural mother must be answered in light\nof the advanced technologies that permit such a procedure. In Johnson, California developed an\nanalysis that has become known as the intent test: those who intended to be parents, absent other\ncompelling circumstances, should be considered the parents. Applying that test, the Johnson court\ndeclared the genetic mother, who intended from the beginning to be the mother, instead of the\ngestational surrogate mother, to be the natural mother (Johnson, 5 Cal.4th at 93-94, 19 Cal.Rptr.2d\n494, 851 P.2d at 781-782).\nNew York also has a separate article, article 8 (\xc2\xa7\xc2\xa7 120-124) of the Domestic Relations Law, dealing\nwith surrogate parenting. Unlike California, it forbids recognition of surrogate parenting contracts,\nand considers them void and unenforceable (Domestic Relations Law \xc2\xa7 122). Nonetheless, New\nYork courts entertain petitions for declarations of maternity, and do not require parents to go\nthrough an adoption proceeding in cases of in vitro fertilization and gestational surrogacy\narrangements (see e.g. Arredondo v. Nodelman, 163 Misc.2d 757, 622 N.Y.S.2d 181 [decided before\nenactment of article 8]; see Matter of Andres A., 156 Misc.2d 65, 591 N.Y.S.2d 946 [related proceeding]\n), and apply the intent test to determine who the \xe2\x80\x9cnatural mother\xe2\x80\x9d is in such an arrangement in the\ncontext of a divorce and custody dispute (McDonald v. McDonald, 196 A.D.2d 7, 608 N.Y.S.2d 477\n[decided after enactment of article 8]; see also Kass v. Kass, 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696\nN.E.2d 174). While the practice commentaries to Domestic Relations Law \xc2\xa7 122 state that surrogacy\narrangements are \xe2\x80\x9cspecialized adoption agreements,\xe2\x80\x9d (Scheinkman, McKinney\'s Unconsol. L. of\nN.Y., Book 14, Domestic Relations Law \xc2\xa7 122, at 321 [1999]), adoption need not follow a\nsurrogate parenting arrangement, as it does not in California (Johnson, 5 Cal.4th at 96, 19 Cal.Rptr.2d\n494, 851 P.2d at 783-784) and did not in this case.\nFinally, no reasoning justifies a denial of full faith and credit to the California judgment. Where a\njudgment of a sister state is issued with jurisdiction of all parties, New York must afford it full faith\nand credit (U.S. Const., art. IV, \xc2\xa7 1; 28 USCA \xc2\xa7\xc2\xa7 1738, 1738A, 1738B; see e.g. In re Michael H., 198\nA.D.2d 414, 415, 604 N.Y.S.2d 573 [1993] [full faith given to California judgment regarding\npaternity and visitation rights]; Estate of D\'Angelo, 139 Misc.2d 5, 10, 526 N.Y.S.2d 729 [full faith\ngiven to California adoption decree] see also Hampton v. M\'Connel, 16 U.S. 234, 235, 3 Wheat. 234, 4\n339\n\n\x0cL.Ed. 378; Domestic Relations Law \xc2\xa7 77-b). Although New York forbids enforcement of surrogacy\ncontracts, the enforcement of the contract is not at issue here. More importantly, the legislature did\nnot punish or prejudice the rights of children born from such arrangements. Instead, the statutory\nscheme explicitly contemplates full and fair proceedings to determine \xe2\x80\x9cparental rights, status and\nobligations\xe2\x80\x9d (Domestic Relations Law \xc2\xa7 124), notwithstanding the surrogate parenting contract.\nAlthough for different reasons, a New York court could have reached the same conclusions as to\nwho the twins\' parents are as the California court did, and full faith and credit cannot be denied the\nCalifornia judgment on grounds of some countervailing New York public policy (see Baker v. General\nMotors Corp., 522 U.S. 222, 233, 118 S.Ct. 657, 139 L.Ed.2d 580 [1998]; cf. Matter of May, 305 N.Y.\n486, 114 N.E.2d 4).\nAccordingly, the Court holds that the twins are not excluded from the benefits of the John Doe\ntrusts by virtue of the adoption exclusion.\nSettle decree.\n\n340\n\n\x0cPart II \xe2\x80\x94The Testacy System\nChapter Seven: Testamentary Freedom\n7.1\n\nIntroduction\n\nA person spends a lifetime accumulating property. Some people acquire more resources than\nothers. Nonetheless, regardless of the size of the estate, the one who accrues the property wants to\ncontrol what happens to it after he or she dies. The majority of people transfer their property using\nnon-probate instruments like trusts, joint bank accounts and life insurance. In legal terms, property\nconsists of a bundle of sticks or rights, including the right to include, the right to exclude, and the\nright to dispose. It is clear that, during life, a person has a right to dispose of his or her property by\ngift or sale. Should the right to dispose of property survive the death of the owner of that property?\nThe right to dispose of property at death is a separate property right that belongs to the owner of\nthe property. Therefore, as long as the person complies with the law, he or she has the right to\ncontrol the distribution of his or her property. However, testamentary freedom is not absolute\nbecause preexisting obligations may have priority over testamentary dispositions. Since the right to\ndispose of property belongs to the testator, he or she may put reasonable restrictions on a person\xe2\x80\x99s\nright to inherit his or her estate. In this chapter, we will examine the testator\xe2\x80\x99s right to dispose and to\nplace restrictions on the receipt of his or her property.\n7.1.1. The Decedent\xe2\x80\x99s Right to Control the Distribution of Property\nThe next case involves the law of takings. According to the Fifth Amendment, private\nproperty cannot be taken for public use unless the government pays the private property owner just\ncompensation. In takings jurisprudence, property is broadly defined to include all of the rights in the\nbundle of sticks of property ownership. Therefore, if the government, through eminent domain or\nregulation, takes any one of those rights, the private property owner is entitled to just compensation.\nAlthough the case discussed below deals with the issue of takings, the case is included because it\nstands for the proposition that \xe2\x80\x9cthe right to pass on valuable property to one\xe2\x80\x99s heirs\xe2\x80\x9d is included in\nthe bundle of sticks that make up property ownership. Consequently, if the government regulation\ntakes away that right, the private property owner must be compensated.\n\nHodel v. Irving, 481 U.S. 704 (1987)\nO\xe2\x80\x99CONNOR, Justice.\nThe question presented is whether the original version of the \xe2\x80\x9cescheat\xe2\x80\x9d provision of the Indian\nLand Consolidation Act of 1983, Pub.L. 97-459, Tit. II, 96 Stat. 2519, effected a \xe2\x80\x9ctaking\xe2\x80\x9d of\nappellees\' decedents\' property without just compensation.\nI\nTowards the end of the 19th century, Congress enacted a series of land Acts which divided the\ncommunal reservations of Indian tribes into individual allotments for Indians and unallotted lands\n341\n\n\x0cfor non-Indian settlement. This legislation seems to have been in part animated by a desire to force\nIndians to abandon their nomadic ways in order to \xe2\x80\x9cspeed the Indians\' assimilation into American\nsociety,\xe2\x80\x9d Solem v. Bartlett, 465 U.S. 463, 466 (1984), and in part a result of pressure to free new lands\nfor further white settlement. Ibid. Two years after the enactment of the General Allotment Act of\n1887, ch. 119, 24 Stat. 388, Congress adopted a specific statute authorizing the division of the Great\nReservation of the Sioux Nation into separate reservations and the allotment of specific tracts of\nreservation land to individual Indians, conditioned on the consent of three-fourths of the adult male\nSioux. Act of Mar. 2, 1889, ch. 405, 25 Stat. 888. Under the Act, each male Sioux head of household\ntook 320 acres of land and most other individuals 160 acres. 25 Stat. 890. In order to protect the\nallottees from the improvident disposition of their lands to white settlers, the Sioux allotment statute\nprovided that the allotted lands were to be held in trust by the United States. Id., at 891. Until 1910,\nthe lands of deceased allottees passed to their heirs \xe2\x80\x9caccording to the laws of the State or Territory\xe2\x80\x9d\nwhere the land was located, ibid., and after 1910, allottees were permitted to dispose of their interests\nby will in accordance with regulations promulgated by the Secretary of the Interior. 36 Stat. 856, 25\nU.S.C. \xc2\xa7 373. Those regulations generally served to protect Indian ownership of the allotted lands.\nThe policy of allotment of Indian lands quickly proved disastrous for the Indians. Cash generated by\nland sales to whites was quickly dissipated, and the Indians, rather than farming the land themselves,\nevolved into petty landlords, leasing their allotted lands to white ranchers and farmers and living off\nthe meager rentals. Lawson, Heirship: The Indian Amoeba, reprinted in Hearing on S. 2480 and S. 2663\nbefore the Senate Select Committee on Indian Affairs, 98th Cong., 2d Sess., 82-83 (1984). The\nfailure of the allotment program became even clearer as successive generations came to hold the\nallotted lands. Thus 40-, 80-, and 160-acre parcels became splintered into multiple undivided\ninterests in land, with some parcels having hundreds, and many parcels having dozens, of owners.\nBecause the land was held in trust and often could not be alienated or partitioned, the fractionation\nproblem grew and grew over time.\nA 1928 report commissioned by the Congress found the situation administratively unworkable and\neconomically wasteful. L. Meriam, Institute for Government Research, The Problem of Indian\nAdministration 40-41. Good, potentially productive, land was allowed to lie fallow, amidst great\npoverty, because of the difficulties of managing property held in this manner. Hearings on H.R.\n11113 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular\nAffairs, 89th Cong., 2d Sess., 10 (1966) (remarks of Rep. Aspinall). In discussing the Indian\nReorganization Act of 1934, Representative Howard said:\n\xe2\x80\x9cIt is in the case of the inherited allotments, however, that the administrative costs become\nincredible.... On allotted reservations, numerous cases exist where the shares of each\nindividual heir from lease money may be 1 cent a month. Or one heir may own minute\nfractional shares in 30 or 40 different allotments. The cost of leasing, bookkeeping, and\ndistributing the proceeds in many cases far exceeds the total income. The Indians and the\nIndian Service personnel are thus trapped in a meaningless system of minute partition in\nwhich all thought of the possible use of land to satisfy human needs is lost in a mathematical\nhaze of bookkeeping.\xe2\x80\x9d 78 Cong.Rec. 11728 (1934).\nIn 1934, in response to arguments such as these, the Congress acknowledged the failure of its policy\nand ended further allotment of Indian lands. Indian Reorganization Act of 1934, ch. 576, 48 Stat.\n984, 25 U.S.C. \xc2\xa7 461 et seq.\n342\n\n\x0cBut the end of future allotment by itself could not prevent the further compounding of the existing\nproblem caused by the passage of time. Ownership continued to fragment as succeeding generations\ncame to hold the property, since, in the order of things, each property owner was apt to have more\nthan one heir. In 1960, both the House and the Senate undertook comprehensive studies of the\nproblem. See House Committee on Interior and Insular Affairs, Indian Heirship Land Study, 86th\nCong., 2d Sess. (Comm. Print 1961); Senate Committee on Interior and Insular Affairs, Indian\nHeirship Land Survey, 86th Cong., 2d Sess. (Comm. Print 1960-1961). These studies indicated that\none-half of the approximately 12 million acres of allotted trust lands were held in fractionated\nownership, with over 3 million acres held by more than six heirs to a parcel. Id., at pt. 2, p. X.\nFurther hearings were held in 1966, Hearings on H.R. 11113, supra, but not until the Indian Land\nConsolidation Act of 1983 did the Congress take action to ameliorate the problem of fractionated\nownership of Indian lands.\nSection 207 of the Indian Land Consolidation Act-the escheat provision at issue in this caseprovided:\n\xe2\x80\x9cNo undivided fractional interest in any tract of trust or restricted land within tribe\'s\nreservation or otherwise subjected to a tribe\'s jurisdiction shall descedent [sic] by intestacy or\ndevise but shall escheat to that tribe if such interest represents 2 per centum or less of the\ntotal acreage in such tract and has earned to its owner less than $100 in the preceding year\nbefore it is due to escheat.\xe2\x80\x9d 96 Stat. 2519.\nCongress made no provision for the payment of compensation to the owners of the interests\ncovered by \xc2\xa7 207. The statute was signed into law on January 12, 1983, and became effective\nimmediately.\nThe three appellees-Mary Irving, Patrick Pumpkin Seed, and Eileen Bissonette-are enrolled members\nof the Oglala Sioux Tribe. They are, or represent, heirs or devisees of members of the Tribe who\ndied in March, April, and June 1983. Eileen Bissonette\'s decedent, Mary Poor Bear-Little Hoop\nCross, purported to will all her property, including property subject to \xc2\xa7 207, to her five minor\nchildren in whose name Bissonette claims the property. Chester Irving, Charles Leroy Pumpkin\nSeed, and Edgar Pumpkin Seed all died intestate. At the time of their deaths, the four decedents\nowned 41 fractional interests subject to the provisions of \xc2\xa7 207. App. 20, 22-28, 32-33, 37-39. The\nIrving estate lost two interests whose value together was approximately $100; the Bureau of Indian\nAffairs placed total values of approximately $2,700 on the 26 escheatable interests in the Cross estate\nand $1,816 on the 13 escheatable interests in the Pumpkin Seed estates. But for \xc2\xa7 207, this property\nwould have passed, in the ordinary course, to appellees or those they represent.\nAppellees filed suit in the United States District Court for the District of South Dakota, claiming\nthat \xc2\xa7 207 resulted in a taking of property without just compensation in violation of the Fifth\nAmendment. The District Court concluded that the statute was constitutional. It held that appellees\nhad no vested interest in the property of the decedents prior to their deaths and that Congress had\nplenary authority to abolish the power of testamentary disposition of Indian property and to alter\nthe rules of intestate succession.\nThe Court of Appeals for the Eighth Circuit reversed. Irving v. Clark, 758 F.2d 1260 (1985).\nAlthough it agreed that appellees had no vested rights in the decedents\' property, it concluded that\ntheir decedents had a right, derived from the original Sioux allotment statute, to control disposition\n343\n\n\x0cof their property at death. The Court of Appeals held that appellees had standing to invoke that\nright and that the taking of that right without compensation to decedents\' estates violated the Fifth\nAmendment.\nII\nThe Court of Appeals concluded that appellees have standing to challenge \xc2\xa7 207. 758 F.2d, at 12671268. The Government does not contest this ruling. As the Court of Appeals recognized, however,\nthe existence of a case or controversy is a jurisdictional prerequisite to a federal court\'s deliberations.\nId., at 1267, n. 12. We are satisfied that the necessary case or controversy exists in this case. Section\n207 has deprived appellees of the fractional interests they otherwise would have inherited. This is\nsufficient injury-in-fact to satisfy Article III of the Constitution. See Singleton v. Wulff, 428 U.S. 106,\n112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976).\nIn addition to the constitutional standing requirements, we have recognized prudential standing\nlimitations. As the court below recognized, one of these prudential principles is that the plaintiff\ngenerally must assert his own legal rights and interests. 758 F.2d, at 1267-1268. That general\nprinciple, however, is subject to exceptions. Appellees here do not assert that their own property\nrights have been taken unconstitutionally, but rather that their decedents\' right to pass the property\nat death has been taken. Nevertheless, we have no difficulty in finding the concerns of the prudential\nstanding doctrine met here.\nFor obvious reasons, it has long been recognized that the surviving claims of a decedent must be\npursued by a third party. At common law, a decedent\'s surviving claims were prosecuted by the\nexecutor or administrator of the estate. For Indians with trust property, statutes require the Secretary\nof the Interior to assume that general role. 25 U.S.C. \xc2\xa7\xc2\xa7 371-380. The Secretary\'s responsibilities in\nthat capacity, however, include the administration of the statute that the appellees claim is\nunconstitutional, see 25 U.S.C. \xc2\xa7\xc2\xa7 2202, 2209, so that he can hardly be expected to assert appellees\'\ndecedents\' rights to the extent that they turn on that point. Under these circumstances, appellees can\nappropriately serve as their decedents\' representatives for purposes of asserting the latters\' Fifth\nAmendment rights. They are situated to pursue the claims vigorously, since their interest in receiving\nthe property is indissolubly linked to the decedents\' right to dispose of it by will or intestacy. A\nvindication of decedents\' rights would ensure that the fractional interests pass to appellees; pressing\nthese rights unsuccessfully would equally guarantee that appellees take nothing. In short, permitting\nappellees to raise their decedents\' claims is merely an extension of the common law\'s provision for\nappointment of a decedent\'s representative. It is therefore a \xe2\x80\x9csettled practice of the courts\xe2\x80\x9d not open\nto objection on the ground that it permits a litigant to raise third parties\' rights. Tyler v. Judges of Court\nof Registration, 179 U.S. 405, 406, 21 S.Ct. 206, 207, 45 L.Ed. 252 (1900).\nIII\nThe Congress, acting pursuant to its broad authority to regulate the descent and devise of Indian\ntrust lands, Jefferson v. Fink, 247 U.S. 288, 294 (1918), enacted \xc2\xa7 207 as a means of ameliorating, over\ntime, the problem of extreme fractionation of certain Indian lands. By forbidding the passing on at\ndeath of small, undivided interests in Indian lands, Congress hoped that future generations of\nIndians would be able to make more productive use of the Indians\' ancestral lands. We agree with\nthe Government that encouraging the consolidation of Indian lands is a public purpose of high\norder. The fractionation problem on Indian reservations is extraordinary and may call for dramatic\n344\n\n\x0caction to encourage consolidation. The Sisseton-Wahpeton Sioux Tribe, appearing as amicus curiae in\nsupport of the Secretary of the Interior, is a quintessential victim of fractionation. Forty-acre tracts\non the Sisseton-Wahpeton Lake Traverse Reservation, leasing for about $1,000 annually, are\ncommonly subdivided into hundreds of undivided interests, many of which generate only pennies a\nyear in rent. The average tract has 196 owners and the average owner undivided interests in 14\ntracts. The administrative headache this represents can be fathomed by examining Tract 1305,\ndubbed \xe2\x80\x9cone of the most fractionated parcels of land in the world.\xe2\x80\x9d Lawson, Heirship: The Indian\nAmoeba, reprinted in Hearing on S. 2480 and S. 2663 before the Senate Select Committee on Indian\nAffairs, 98th Cong., 2d Sess., 85 (1984). Tract 1305 is 40 acres and produces $1,080 in income\nannually. It is valued at $8,000. It has 439 owners, one-third of whom receive less than $.05 in\nannual rent and two-thirds of whom receive less than $1. The largest interest holder receives $82.85\nannually. The common denominator used to compute fractional interests in the property is\n3,394,923,840,000. The smallest heir receives $.01 every 177 years. If the tract were sold (assuming\nthe 439 owners could agree) for its estimated $8,000 value, he would be entitled to $.000418. The\nadministrative costs of handling this tract are estimated by the Bureau of Indian Affairs at $17,560\nannually. Id., at 86, 87. See also Comment, Too Little Land, Too Many Heirs-The Indian Heirship\nLand Problem, 46 Wash.L.Rev. 709, 711-713 (1971).\nThis Court has held that the Government has considerable latitude in regulating property rights in\nways that may adversely affect the owners. (Citations omitted.) The framework for examining the\nquestion whether a regulation of property amounts to a taking requiring just compensation is firmly\nestablished and has been regularly and recently reaffirmed. (citations omitted).\nThere is no question that the relative economic impact of \xc2\xa7 207 upon the owners of these property\nrights can be substantial. Section 207 provides for the escheat of small undivided property interests\nthat are unproductive during the year preceding the owner\'s death. Even if we accept the\nGovernment\'s assertion that the income generated by such parcels may be properly thought of as de\nminimis, their value may not be. While the Irving estate lost two interests whose value together was\nonly approximately $100, the Bureau of Indian Affairs placed total values of approximately $2,700\nand $1,816 on the escheatable interests in the Cross and Pumpkin Seed estates. (citations omitted).\nThese are not trivial sums. Of course, the whole of appellees\' decedents\' property interests were not\ntaken by \xc2\xa7 207. Appellees\' decedents retained full beneficial use of the property during their lifetimes\nas well as the right to convey it inter vivos. There is no question, however, that the right to pass on\nvaluable property to one\'s heirs is itself a valuable right. Depending on the age of the owner, much\nor most of the value of the parcel may inhere in this \xe2\x80\x9cremainder\xe2\x80\x9d interest. See 26 CFR \xc2\xa7 20.2031-7(f)\n(Table A) (1986) (value of remainder interest when life tenant is age 65 is approximately 32% of the\nwhole).\nIn holding that complete abolition of both the descent and devise of a particular class of property\nmay be a taking, we reaffirm the continuing vitality of the long line of cases recognizing the States\',\nand where appropriate, the United States\', broad authority to adjust the rules governing the descent\nand devise of property without implicating the guarantees of the Just Compensation Clause. See, e.g.,\nIrving Trust Co. v. Day, 314 U.S. 556, 562, 62 S.Ct. 398, 401, 86 L.Ed. 452 (1942); Jefferson v. Fink, 247\nU.S., at 294, 38 S.Ct., at 518. The difference in this case is the fact that both descent and devise are\ncompletely abolished; indeed they are abolished even in circumstances when the governmental\npurpose sought to be advanced, consolidation of ownership of Indian lands, does not conflict with\nthe further descent of the property.\n345\n\n\x0cThere is little doubt that the extreme fractionation of Indian lands is a serious public problem. It\nmay well be appropriate for the United States to ameliorate fractionation by means of regulating the\ndescent and devise of Indian lands. Surely it is permissible for the United States to prevent the\nowners of such interests from further subdividing them among future heirs on pain of escheat. See\nTexaco, Inc. v. Short, 454 U.S. 516, 542, 102 S.Ct. 781, 799, 70 L.Ed.2d 738 (1982) (Brennan, J.,\ndissenting). It may be appropriate to minimize further compounding of the problem by abolishing\nthe descent of such interests by rules of intestacy, thereby forcing the owners to formally designate\nan heir to prevent escheat to the Tribe. What is certainly not appropriate is to take the extraordinary\nstep of abolishing both descent and devise of these property interests even when the passing of the\nproperty to the heir might result in consolidation of property. Accordingly, we find that this\nregulation, in the words of Justice Holmes, \xe2\x80\x9cgoes too far.\xe2\x80\x9d Pennsylvania Coal Co. v. Mahon, 260 U.S., at\n415, 43 S.Ct., at 160. The judgment of the Court of Appeals is\nAffirmed.\nNotes and Questions\n1. According to the Hodel court, the right to dispose of property is included in the bundle of rights\nof property ownership. Therefore, the owner of the property has a right to dispose of that property,\nbut the heirs of that property owner do not have a right to inherit. Since the statute deprived the\ndecedent of the right to pass on property to their heirs, the Court found that private property had\nbeen taken. How could the statute be amended to change the outcome of the case?\n2. Section 207, the provision of the Indian Land Consolidation Act at issue in the Hodel case,\nabolished the power of testamentary disposition of Indian property and altered the rules of intestate\nsuccession. The purpose of the provision was to ameliorate the problem of fractionated ownership\nof Indian lands80 by encouraging consolidation. The government hoped to accomplish that goal by\nprohibiting the passing on at death of small, undivided interests in Indian lands. Thus, if a person\nowned the land impacted by the Act, he or she could not devise it in his will and it could not be\ninherited by his or her intestate heirs.\n3. Why did the Court conclude that the \xe2\x80\x9ccomplete abolition of both descent and devise of a\nparticular class of property\xe2\x80\x9d was a taking?\n\nOstrander v. Preece, 196 N.E. 670 (Ohio 1935)\nError to Court of Appeals, Lucas County.\nAction by one Preece, administrator with the will annexed of the estate of Joseph M. Stoddard,\ndeceased, and others against one Ostrander, administrator of the estate of Clara H. Stoddard,\nThe Court used Tract 1305 to show the impact of the problem. The language from the case states \xe2\x80\x9cTract 1305 is 40\nacres and produces $1,080 in income annually. It is valued at $8,000. It has 439 owners, one-third of whom receive less\nthan $.05 in annual rent and two-thirds of whom receive less than $1. The largest interest holder receives $82.85\nannually. The common denominator used to compute fractional interests in the property is 3,394,923,840,000. The\nsmallest heir receives $.01 every 177 years. If the tract were sold (assuming the 439 owners could agree) for its estimated\n$8,000 value, he would be entitled to $.000418. The administrative costs of handling this tract are estimated by the\nBureau of Indian Affairs at $17,560 annually.\xe2\x80\x9d\n80\n\n346\n\n\x0cdeceased, and others. To review a judgment of the Court of Appeals which affirmed a judgment of\nthe court of common pleas, defendants bring error.\nAffirmed.\nThis is an action involving the constitutionality of section 10503-18, General Code, governing the\nright to transmit and inherit property \xe2\x80\x98when the surviving spouse or other heir at law or legatee dies\nwithin three days after the date of death of the decedent, or within thirty days after the date of death\nof such decedent if such death resulted from a common accident. * * *\xe2\x80\x99\nThe controlling facts are these: Joseph M. Stoddard died testate on October 24, 1932, from natural\ncauses. His wife, Clara H., died intestate on October 27, 1932, likewise from natural causes. Each\ndecedent left brothers, sisters, nieces, and nephews. The will of Joseph M. Stoddard left all his\nproperty, valued at $25,000, to his wife and \xe2\x80\x98to her heirs and assigns forever,\xe2\x80\x99 and named her as\nexecutrix. The wife had assisted her husband in the accumulation and saving of his property and\nestate. Inasmuch as the wife died within three days from the date of death of her husband, the heirs\nat law of the husband claim his entire estate by virtue of section 10503-18, General Code. The heirs\nof the wife contend, however, that they are entitled to his estate under the will; that that section of\nthe Code is unconstitutional; and that the claims of the heirs of Joseph M. Stoddard based thereon\nare invalid.\nThe administrator with the will annexed of the estate of Joseph M. Stoddard filed suit in the court of\ncommon pleas of Lucas county, alleging that he was in doubt as to the persons entitled to the estate\nand that he was unable, by reason thereof, to make proper application for the determination of\ninheritance tax, and praying direction and judgment of the court respecting the rights of the heirs of\neach decedent in and to said estate.\nThe heirs of Clara H. Stoddard, all of whom were named as parties defendant in the action, filed an\nanswer asserting their claims substantially as mentioned above after admitting the facts alleged in the\nplaintiff\'s petition, which covered the time of death of each decedent, the relationship of the parties\nto the decedent, the execution and probate of the will.\nOn the trial of the case judgment was rendered in favor of the heirs of Joseph M. Stoddard,\ndeceased, which was affirmed by the Court of Appeals of Lucas county. Error proceedings were\nfiled in this court as of right on the ground that the questions herein arise out of the Constitution of\nthe state of Ohio.\nDAY, Judge.\nIs section 10503-18, General Code, constitutional? Does it deprive the heirs of Clara H. Stoddard of\ntheir vested or property rights without due process of law? Does it establish a presumption of the\norder of death contrary to the facts? These are the major questions raised by plaintiffs in error and\nwe shall consider them in their order.\nA careful reading of the statute will disclose that, in fact, it establishes no presumption of the order\nof death. It provides that \xe2\x80\x98no one of such persons shall be presumed to have died first\xe2\x80\x99; that the\nestate of such first decedent shall pass and descend as though he had survived such heir at law or\nlegatee. The right to indulge in a presumption of the order of death is expressly prohibited therein. It\n347\n\n\x0cdoes, however, direct the course of descent and distribution of property of those who have died\nwithin the time and in the manner therein described. This is clearly within the constitutional powers\nof the General Assembly and does not constitute deprivation of property without due process of\nlaw.\nThe right to transmit or inherit property is not an inherent or natural right but is purely a statutory\nright and subject to legislative control and restriction. (Citations omitted).\nA person cannot, of course, be divested of his vested rights without due process of law, and a\npresent vested right \xe2\x80\x98can in no wise be affected by the laws of descent and distribution. Oleff, Adm\'r,\nv. Hodapp, 129 Ohio St. 432, 195 N. E. 838.\nThere are no heirs, but only heirs apparent, to the living, persons with mere expectancies or\npossibilities of inheritance which may be fulfilled or defeated, defending upon various contingencies\nand situations. An heir apparent, therefore, has no vested right in the estate of his ancestor prior to\nthe latter\'s death, and consequently no vested property rights therein. Legislation dealing with estates\nof persons who die after its effective date does not deal with vested rights. Plaintiffs in error, having\nhad no present vested rights in the estate of Joseph M. Stoddard at the time the statute in question\nwent into effect, could not have been deprived thereof.\nA legislative enactment, repealing, modifying, or changing the course of descent and distribution of\nproperty and the right to inherit or transmit property is not an unlawful interference with or\ndeprivation of vested rights, and, unless expressly inhibited by constitutional provision, is to be\ndeemed valid.\nWe find nothing constitutionally objectionable in section 10503-18, General Code.\nJudgment affirmed.\nNotes, Problems, and Questions\n1. If the Ostrander case was litigated after the Hodel opinion was issued, what would be the possible\noutcome of the case?\n2. In order to prepare a will disposing of property, the testator must be mentally competent. If a\nperson has the right to dispose of his or her property as he or she wishes, why should the person\nhave to pass a mental competency test? Should a person who is physically incapacitated be able to\nprepare a valid will?\n3. Even if the person is found to have been in sound mind at the time of the execution of the will,\nthe court may refuse to probate the will if it concludes that the will was a result of undue influence,\ninsane delusion or duress. Does the application of these doctrines infringe on the person\xe2\x80\x99s right to\ntransmit property at death?\n4. Should the inheritance be abolished? Should we have a system where the portion of land allotted\nto the individual ceases to belong to him or her upon death and reverts to society?\n\n348\n\n\x0c5. Suppose that Congress required registration of handguns and assault weapons, prohibited sale\nand provided that at the death of the owner the weapons became the property of the government to\nredistribute. Would that be constitutional?\nClass Discussion Tool\nJanet executed a will leaving her house to her son, Terrance. The jurisdiction had a statute that\nprohibited convicted felons from inheriting property if they still owed restitution for their crimes.\nTerrance was convicted of armed robbery and sentenced to seven years in prison. He was also\nordered to pay $50,000 in restitution. When Janet died, Terrance had three years left on his sentence\nand he had not paid any money towards the restitution. The state\xe2\x80\x99s attorney filed a motion seeking\nto have Janet\xe2\x80\x99s house sold to pay the $50,000 in restitution. In the alternative, the state\xe2\x80\x99s attorney\nasked the court to attach a $50,000 lien on the house. Evaluate the constitutionality of the statute\nand the potential court action.\n7.2\n\nThe Decedent\xe2\x80\x99s Right to Place Restrictions on the Right to Inherit\n\nSince children do not have the right to inherit from their parents, they can be totally\ndisinherited. Nonetheless, the majority of persons who prepare wills tend not to disinherit their\nchildren. Based on the particular circumstances, the testator may decide to place some type of\ncondition or restriction on the child\xe2\x80\x99s right to inherit. Courts usually uphold those conditions unless\nthey require the heir to engage in an activity that is illegal, unconstitutional or against public policy.\nAlso, Courts will not enforce conditions that infringe on fundamental or constitutional rights. As the\nnext two cases indicate, factually similar cases can have different judicial outcomes\n7.2.1\n\nSome Restrictions are Unreasonable\n\nMaddox & al. v. Maddox\xe2\x80\x99s adm\xe2\x80\x99r & als., 11 Grat., Va. 804 (Va. 1854)\n1. A member of the Society of Friends, by his will, gives a legacy of a remainder after a life interest,\nto his niece M, \xe2\x80\x9cduring her single life, and forever, if her conduct should be orderly, and she remain\na member of the Society of Friends.\xe2\x80\x9d When M arrived at a marriageable age, there were but five or\nsix unmarried men of the society in the neighborhood in which she lived: And during the life estate\nshe married a man not a member of the Society of Friends, and by that act she ceased to be a\nmember of the society.\nHeld:\n1. The condition is an unreasonable restraint upon marriage, and is void.\n2. There being no bequest over, and no specific direction that upon breach of the condition the\nlegacy shall fall into the residuum of the estate, the condition is therefore in terrorem merely, and does\nnot avoid the bequest.\n2. On a bequest of a legacy upon a condition requiring any religious qualification, the condition is\nagainst the policy of the law of Virginia, and therefore void.\n349\n\n\x0c3. If the condition be a condition precedent, the legatee can take the legacy free from the condition,\nor if the legacy lapses: And it seems that the legatee will take a legacy of personal property; though a\ndevise of land would fail.\nThis was a suit in equity in the Circuit court of Hanover county, by Wilson Maddox and Martha Jane\nMaddox against William G. Maddox, as administrator de bonis non with the will annexed of John\nMaddox, and others, claiming as residuary legatees of John Maddox deceased. The plaintiffs claimed\nthat the defendants, who were also legatees of John Maddox, had forfeited their interest in his estate\nby violating the condition upon which the legacies were given. The facts are stated by Judge LEE in\nhis opinion. The decree below was in favor of the defendants. Whereupon the plaintiffs applied to\nthis court for an appeal, which was allowed.\nLEE, J.\nThe testator, who was a member of the Society of Friends, departed this life in the year 1834. By a\ncodicil to his will, dated on the 7th of June 1834, after certain specific bequests, he directs the\nproceeds of his estate, which was to be converted into money, to be divided into three equal parts,\nand to be disposed of as follows: One-third for the benefit of his father during his natural life; one\nother third to be applied to the payment of a bond due his brother Thomas Maddox, or whatever\nsum might be due upon such bond; and the interest of the remaining third to go to his brother\nWilliam G. Maddox during his natural life. At the death of his father, the third set apart for him to\nbe returned to his estate, and disposed of according to his will. At the death of his brother William,\nthe third \xe2\x80\x9cloaned\xe2\x80\x9d to him to be given to his daughter Ann Maria Maddox, \xe2\x80\x9cduring her single life,\nand forever, if her conduct should be orderly, and she remain a member of Friends Society.\xe2\x80\x9d The\ncodicil concluded with the following clause: \xe2\x80\x9cFurthermore, at the closing of all the above things, I\nwish to give and bequeath all the remaining part of my estate to my nearest relations that may be\nthen living, and that shall be at that time members of the Society of Friends.\xe2\x80\x9d\nAfter the death of the testator, and during the life time of her father, Ann Maria Maddox married\nthe appellee Thomas Tiller, who was not a member of the Society of Friends, and thereby, according\nto the rules and discipline of the society, forfeited her right to membership. The appellee William\nGarland Maddox also left the society, but the time at which he did so is nowhere disclosed by the\nrecord.\nAs Mrs. Tiller is claiming the benefit of the bequest in remainder to her after the death of her father,\nand as both she and Garland Maddox are claiming as two of the next of kin of the testator to\nparticipate in the residuum, we are called upon in this state of the case, to pass on the validity and\neffect of the two bequests in this codicil.\nAs by the rules of the Society of Friends, a member who married out of the society thereby forfeited\nhis membership, the effect of the bequest of the third in remainder to Ann Maria Maddox, was to\nrestrict her to marriage with a member of the society. Upon her marriage, the estate given to her\n\xe2\x80\x9cduring her single life,\xe2\x80\x9d would, according to the terms of the codicil, be determined; and if she\nmarried a person who was not a member of the society, she herself ceased to be a member, and was\nthus excluded from further enjoyment of the estate. The question then, as it respects the bequest of\nthe third in remainder to Ann Maria Maddox, is as to the validity of such a restraint upon marriage\nunder the circumstances disclosed in this case.\n350\n\n\x0cIt will not be questioned that marriages of a suitable and proper character, founded on the mutual\naffection of the parties, and made upon free choice, are of the greatest importance to the best\ninterests of society, and should be by all proper means promoted and encouraged. The purity of the\nmarriage relation and the happiness of the parties will, to a great extent, depend upon their\nsuitableness the one for the other, and the entire freedom of choice which has led to their union;\nand upon these, in their turn, in a great degree must depend the successful rearing of their children,\nand the proper formation and development of their character and principles. Hence not only should\nall positive prohibitions of marriage be rendered nugatory, but all unjust and improper restrictions\nupon it should be removed, and all undue influences in determining the choice of the parties should\nbe carefully suppressed. Accordingly, in the civil law all conditions annexed to gifts and legacies\nwhich went to restrain marriages generally, were deemed inconsistent with public policy, and held\nvoid. Poth. Pand. lib. 35, title 1, n. 35; Dig. xxxv, tit. 1, l. 22, 64, 72.\nThis doctrine has been introduced into the English law with certain modifications, suggested by a\ndisposition to preserve to parents a just control and influence with their children, and the means of\nprotecting youthful persons against the sad consequences of hasty, unsuitable or ill-assorted\nmarriages. Conditions, therefore, in restraint of marriage, annexed to gifts and legacies, are allowed\nwhen they are reasonable in themselves, and do not unduly restrict a just and proper freedom of\nchoice. But where a condition is in restraint of marriage generally, it is deemed to be contrary to\npublic policy, at war with sound morality, and directly violative of the true economy of social and\ndomestic life. Hence, such a condition will be held utterly void. (citations omitted).\nIn Elizabeth Castle\'s Case, Law Jurist, December 1846, the vice chancellor declared, in general terms,\nthat \xe2\x80\x9climitations in restriction of marriage, were objectionable:\xe2\x80\x9d and in Long v. Dennis, 4 Burr. R.\n2052, Lord Mansfield said, \xe2\x80\x9cConditions in restraint of marriage are odious, and are therefore held to\nthe utmost rigor and strictness. They are contrary to sound policy. \xe2\x80\x9cAnd accordingly, even in those\ncases in which restraints of a partial character may be imposed on marriage, as in respect of time,\nplace or person, they must be such only as are just, fair and reasonable. Where they are of so rigid a\ncharacter, or made so dependent on peculiar circumstances, as to operate a virtual though not a\npositive restraint on marriage, or unreasonably restrict the party in the choice of marriage, they will\nbe ineffectual and utterly disregarded. Thus, a condition in restraint of marriage excluding men of a\nparticular profession, has been held void. 1 Equ. Ca. Ab. 100. So a contract not to marry within six\nyears is void because it tends to discourage marriage. Hartley v. Rice, 10 East\'s R. 22. So a covenant\nwith a woman not to marry any other person, has been held not to be binding. Lowe v. Peers, 4 Burr.\nR. 2225. So a condition annexed to a legacy to a daughter, forbidding her to marry any man who had\nnot a clear unencumbered estate in fee or freehold perpetual, of the yearly value of five hundred\npounds, was declared by the lord chancellor to be worthy of condemnation in every court of justice:\nand it was held void as leading to a probable prohibition of marriage. And Judge Story lays it down,\nthat restraints in respect of time, place or person, may be so framed as to operate a virtual\nprohibition upon marriage, or at least upon its most important and valuable objects; and he\nillustrates by a condition that a child should not marry till fifty years of age; or should not marry any\nperson inhabiting in the same town, county or state; or should not marry any person that was a\nclergyman, a physician, or a lawyer, or any person except of a particular trade or employment; all of\nwhich, he tells us, would be deemed mere evasions of the law. 1 Story\'s Eq. Jur. \xc2\xa7 283. In these he\nseems to be borne out by the opinion of Lord Chancellor Clare, in Keily v. Monck, ubi supra.\nFollowing these principles and the cases I have cited for my guide, and looking to the facts in proof\nin the cause, I cannot avoid coming to the conclusion, that the condition imposed by the bequest of\n351\n\n\x0cthe third in remainder to Ann Maria Maddox, which in effect forbade her to marry any other than a\nmember of the Society of Friends, was an undue and unreasonable restraint upon the choice of\nmarriage, and ought to be disregarded. It is in proof, that when she became marriageable, the\nnumber of Quakers in the county of Hanover, in which she resided, and the vicinity, was small, and\nthat it had been since diminishing. There were not within the circle of her association, more than\nfive or six marriageable male members of the society, according to one of the witnesses, or three or\nfour, according to another; and the probability is, as stated by one of the witnesses, the restriction\nimposed by the condition would have operated a virtual prohibition of her marrying. To say there\nwere members of the society residing in other counties, is no answer to the objection. She certainly\ncould not be expected, if she had the means, which it seems she had not, to go abroad in search of a\nhelpmate; and to subject her to the doubtful chance of being sought in marriage by a stranger, would\noperate a restraint upon it far more stringent than those which are repudiated in the cases and\nillustrations which I have already cited.\nThe case of Haughton v. Haughton, 1 Molloy 612, 12 Cond. Eng. Ch. R. 295, has been cited in support\nof the restriction in this case. But that case and the case of Perrin v. Lyon, 9 East\'s R. 170, where the\ncondition was not to marry a Scotchman, which is relied on by the lord chancellor as decisive, were\ncases of devises of realty; and there is a well settled distinction between them and bequests of\npersonalty, such as is the present case. The former are governed by the rules of the common law,\nand the rules of the ecclesiastical courts which control bequests of personalty, are regarded as\ninapplicable. 2 Pow. on Dev. 282; 1 Jarm. on Wills 836; Harvey v. Aston, 1 Atk. R. 361; Reynish v.\nMartin, 3 Atk. R. 330; Stackpole v. Beaumont, 3 Ves. R. 89; 1 Fonbl. Eq. ch. iv, \xc2\xa7 10, n. q, p. 258.\nMoreover, it may well be questioned how far a decision upon such a question in a country already\noverstocked with inhabitants, is applicable to a country like ours, with an unbounded extent of\nterritory, a large portion of which is yet unsettled, and in which increase of population is one of the\nmain elements of national prosperity. Nowhere can the policy of repudiating all unnecessary\nrestraints upon freedom of choice in marriage apply with more force than among a free people, with\ninstitutions like ours, and in the circumstances by which we are surrounded. For this reason, and for\nanother that will be presently adverted to, I should not feel disposed to follow the decision referred\nto, if it were even more strictly applicable to this case.\nBut treating the condition annexed to the bequest in remainder to Ann Maria Maddox, as a partial\nrestraint upon marriage, by requiring her to marry (if she married at all) a member of the society, on\npain of forfeiting her membership and the benefit of the bequest, if she married one who was not,\nthere is another and distinct ground upon which it will be disregarded. There is no bequest over of\nthe third thus given to her in case of her breach of the condition; and the condition therefore will be\ntreated as in terrorem merely, and the legacy becomes pure and absolute. 1 Roper Leg. ch. 13, \xc2\xa7 1, p.\n654; Garret v. Pritty, 2 Vern. R. 293; Wheeler v. Bingham, 3 Atk. R. 364; Lloyd v. Branton, 3 Meriv. R. 108,\n117. Nor will the residuary clause be regarded as equivalent to a bequest over. To render the\ncondition effectual, there must be an express bequest over on breach of the condition, or a special\ndirection that the forfeited legacy shall fall into the residuum (citations omitted).\nThere is yet another view, which is also equally applicable to the bequest of the residuum, in which\nthe restriction imposed on the bequest of the third in remainder to Ann Maria Maddox, should be\nheld to be void and ineffectual. And the case must be considered in this aspect, because upon the\nresults to which we are brought upon such consideration, must depend the claim both of Mrs. Tiller\nand Garland Maddox to participate in the residuum. It is insisted by the counsel, it is true, that there\nis no proof of disorderly conduct on the part of Mrs. Tiller, nor that she has ever been actually\n352\n\n\x0cdisowned as a member; or if she have been, that she might still be reinstated; and as she has applied\nfor and done all in her power to gain such readmission, but has been refused by the society whose\naction she could not control, she should be regarded as having complied with the condition\nprescribed, cy pres, and should now be exempt from the disability which it creates. And as to Garland\nMaddox, it is urged that there is no proof he is not a member, and as he once was a member, it\nshould be presumed that he still remains such until proof be given to the contrary. But the\npretensions of these parties cannot be sustained on these grounds.\nMrs. Tiller\'s conduct was disorderly in the sense intended by the testator, in marrying one who was\nnot a member of the society, contrary to its rules and discipline. In their answer, she and her\nhusband say distinctly that she had left the society; and the fact of her applying for reinstatement\nsufficiently implies that she had been disowned and excluded. Her application for readmission,\nhowever, was not successful, but was rejected because the \xe2\x80\x9c\xe2\x80\x9cMonthly Meeting\xe2\x80\x9d distrusted the\nmotives by which it was prompted. She is not, therefore, and has not been a member of the society\nsince she was disowned upon her marriage, which took place some time, probably several years,\nbefore the death of her father. And as to Garland Maddox, the bill charges that he was not a\nmember of the society, and on that account was not entitled to participate in the residuum under the\nclause of the codicil by which it is disposed of. Garland Maddox in his answer does not pretend that\nhe is a member, nor does he make any claim to participate as such. He rests his claim upon the\nground that he is one of the next of kin, and that the restriction of the benefits of the bequest to\nsuch of them only as should be members of the \xe2\x80\x9cSociety of Friends,\xe2\x80\x9d a body unknown to the law, is\nillegal and void. And he swears to his answer in the usual mode, instead of making a solemn\naffirmation, which it is understood is the universal usage with the members of the Society of\nFriends.\nIt will not be denied that one of the most marked and distinctive features of our civil institutions, is\nthe perfect, absolute and unqualified freedom of opinion in matters of religion which they secure to\nall who dwell under them. Unjust encroachment upon the rights of conscience, in no inconsiderable\ndegree, gave impulse to the early immigration from the European continent to this, in the hope that\nupon this new and virgin soil might be enjoyed that full and unquestioned freedom of opinion in\nmatters of religion which was deemed a part of the natural rights of man, but which was denied to\nhim in the old world. It was the spirit of resistance to such encroachment which filled the sails of the\nMay Flower, and wafted her, with the Pilgrim Fathers upon her decks, to their landing on Plymouth\nrock. It was the same spirit which brought Huguenots to Virginia and to South Carolina, Catholics\nto Maryland, Quakers to Pennsylvania, and Presbyterians to several of the colonies. Hence, nothing\nwas more natural or more certain than that when the separation took place from the British crown,\nand the state of colonial dependence was replaced by a separate and independent government, the\nrights of conscience and freedom of opinion in matters of religion, should have a prominent and\nwell assured place in the new institutions.\nI take it, then, that upon no subject is the policy of our law more firmly settled, or more plain, clear\nand unmistakable than upon this, and that all contracts and all conditions to the same or to gifts or\nlegacies the effect of which is to thwart and violate this policy, should be held to be utterly void and\nineffectual. And I regard a restriction imposed by the terms of a bequest, requiring as the condition\nof its enjoyment, that the legatee should be a member of any religious sect or denomination, as\ndirectly violative of this policy, and pregnant with evil consequences. It holds out a premium to\nfraud, meanness and hypocrisy; it tends to corrupt the pure principles of religion, by holding out a\nbribe for external profession and conformity to a particular sect; and however pure and honest the\n353\n\n\x0cmotives of the beneficiary may be, he is yet rendered an object of distrust and suspicion; and we see\nin this case that although no other \xe2\x80\x9cdisorderly\xe2\x80\x9d conduct than marrying out of the society was\nimputed to Mrs. Tiller, yet her application to be reinstated was rejected, because, in consequence of\nthe condition annexed to the bequest in her favor, the meeting took up the impression that it was\nprompted by unworthy and mercenary motives; it hampers the conscience, holds out inducements\nto stifle its voice and to resist the force of reason and honest conviction; it tends to destroy true\nreligion, and to replace it with what is false and counterfeit; and, in short, it tends to promote all or\nmost of the evils so forcibly denounced in the preamble to the act already cited.\nThere are other difficulties attending the restriction annexed to this residuary clause, which render it\nquestionable, if it do not involve so much of ambiguity and uncertainty as to the subject and the\ntime of distribution, and the objects of the gift, as may render it void for that cause. If indeed we\nmay discard the idea of time in construing the expressions, \xe2\x80\x9cat the closing of all the above things,\xe2\x80\x9d\n\xe2\x80\x9cthat may be then living, and that shall be at that time members of the Society of Friends,\xe2\x80\x9d and\nyielding to the disposition in favor of vesting estates, can refer the time at which the gift is to take\neffect to the death of the testator, then no difficulty could occur: for at that time Mrs. Tiller was still\na member of the Friends Society; and in the absence of proof we might also infer, that Garland\nMaddox was also still a member: and so no question could arise. But I think this cannot be done,\nbecause the testator seems plainly to have contemplated some period after his death at which the\nbequest was to take effect. What, then, was the period intended by him? The balance of the third not\nneeded to pay the debt to Thomas Maddox, might be ready for distribution many years before the\nthird given to the father for life would fall in upon his death. Would the former be distributed when\nit was ready, or would it be held up till the death of the father, and one distribution be made of the\nwhole at that time? If the former, and the third given to the father for life, were to be the subject of\na separate division upon his death, then a different class might come in at the first division from\nthose who would be entitled at the second, because some of those embraced by the bounty, who\nwere members of the society when the first division should take place, might cease to be so before\nthe period arrived for the second. If one distribution of the whole is to be made, then the part\nremaining of the third, after paying the debt to Thomas Maddox, must be held up till the death of\nthe father, that it may be ascertained which of the next of kin were members of the society at that\ntime.\nAnd how is the court to determine the question of membership? Religious societies, we know, are\nsubject to schisms leading to a complete separation, and the formation of new and distinct societies.\nThey have occurred in the Society of Friends. A schism in the society in England in 1801, which led\nto the formation of a new society called New Lights by the old society. In this country a separation\ntook place some years since, between those who were called Hicksites, after the mover of the\nsecession, Elias Hicks, and those who called themselves the Orthodox Quakers. Both societies\nclaimed to be the true orthodox sect, and each repudiated the claims of the other. If the court were\ncalled on in case of such a division to say which was the true orthodox society, how would it\ndetermine between the conflicting claimants?\nI shall not enter upon these enquiries, because, for the reasons I have already given, I think the\nCircuit court did right in treating the restrictions in the codicil as inoperative and void: and I am\ntherefore of opinion to affirm the decree.\nDecree Affirmed.\n354\n\n\x0c7.2.2\n\nSome Restrictions are Reasonable\n\nShapira v. Union National Bank et. al., 315 N.E.2d 825 (Ohio 1974)\nHENDERSON, Judge.\nThis is an action for a declaratory judgment and the construction of the will of David Shapira, M.D.,\nwho died April 13, 1973, a resident of this county. By agreement of the parties, the case has been\nsubmitted upon the pleadings and the exhibit.\nThe portions of the will in controversy are as follows:\n\xe2\x80\x98Item VIII. All the rest, residue and remainder of my estate, real and personal, of every kind\nand description and wheresoever situated, which I may own or have the right to dispose of\nat the time of my decease, I give, devise and bequeath to my three (3) beloved children, to\nwit: Ruth Shapira Aharoni, of Tel Aviv, Israel, or wherever she may reside at the time of my\ndeath; to my son Daniel Jacob Shapira, and to my son Mark Benjamin Simon Shapira in\nequal shares, with the following qualifications:\n\xe2\x80\x98(b) My son Daniel Jacob Shapira should receive his share of the bequest only, if he is\nmarried at the time of my death to a Jewish girl whose both parents were Jewish. In\nthe event that at the time of my death he is not married to a Jewish girl whose both\nparents were Jewish, then his share of this bequest should be kept by my executor\nfor a period of not longer than seven (7) years and if my said son Daniel Jacob gets\nmarried within the seven year period to a Jewish girl whose both parents were\nJewish, my executor is hereby instructed to turn over his share of my bequest to him.\nIn the event, however, that my said son Daniel Jacob is unmarried within the seven\n(7) years after my death to a Jewish girl whose both parents were Jewish, or if he is\nmarried to a non Jewish girl, then his share of my estate, as provided in item 8 above\nshould go to The State of Israel, absolutely.\xe2\x80\x99\nThe provision for the testator\'s other son Mark, is conditioned substantially similarly. Daniel Jacob\nShapira, the plaintiff, alleges that the condition upon his inheritance is unconstitutional, contrary to\npublic policy and unenforceable because of its unreasonableness, and that he should be given his\nbequest free of the restriction. Daniel is 21 years of age, unmarried and a student at Youngstown\nState University.\nThe provision in controversy is an executory devise or legacy, under which vesting of the estate of\nDaniel Jacob Shapira or the State of Israel is not intended to take place necessarily at the death of\nthe testator, but rather conditionally, at a time not later than seven years after the testator\'s death.\nThe executory aspect of the provision, though rather unusual, does not render it invalid. Heath v. City\nof Cleveland (1926), 114 Ohio St. 535, 151 N.E. 649.\nConstitutionality\nPlaintiff\'s argument that the condition in question violates constitutional safeguards is based upon\nthe premise that the right to marry is protected by the Fourteenth Amendment to the Constitution\n355\n\n\x0cof the United States. Meyer v. Nebraska (1923), 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Skinner v.\nOklahoma (1942), 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655; Loving v. Virginia (1967), 388 U.S. 1, 87\nS.Ct. 1817, 18 L.Ed.2d 1010. In Loving v. Virginia, the court held unconstitutional as violative of the\nEqual Protection and Due Process Clauses of the Fourteenth Amendment an antimiscegenation\nstatute under which a black person and a white person were convicted for marrying. In its opinion\nthe United States Supreme Court made the following statements:\n\xe2\x80\x98There can be no doubt that restricting the freedom to marry solely because of racial\nclassifications violates the central meaning of the Equal Protection Clause.\n\xe2\x80\x98The freedom to marry has long been recognized as one of the vital personal rights essential\nto the orderly pursuit of happiness by free men.\n\xe2\x80\x98Marriage is one of the \xe2\x80\x98basic civil rights of man,\xe2\x80\x99 fundamental to our very existence and\nsurvival. The Fourteenth Amendment requires that the freedom of choice to marry not be\nrestricted by invidious racial discriminations. Under our Constitution, the freedom to marry,\nor not marry, a person of another race resides with the individual and cannot be infringed by\nthe State.\'\nFrom the foregoing, it appears clear, as plaintiff contends, that the right to marry is constitutionally\nprotected from restrictive state legislative action. Plaintiff submits, then, that under the doctrine of\nShelley v. Kraemer (1948), 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, the constitutional protection of the\nFourteenth Amendment is extended from direct state legislative action to the enforcement by state\njudicial proceedings of private provisions restricting the right to marry. Plaintiff contends that a\njudgment of this court upholding the condition restricting marriage would, under Shelley v. Kraemer,\nconstitute state action prohibited by the Fourteenth Amendment as much as a state statute.\nIn the case at bar, this court is not being asked to enforce any restriction upon Daniel Jacob\nShapira\'s constitutional right to marry. Rather, this court is being asked to enforce the testator\'s\nrestriction upon his son\'s inheritance. If the facts and circumstances of this case were such that the\naid of this court were sought to enjoin Daniel\'s marrying a non-Jewish girl, then the doctrine of\nShelley v. Kraemer would be applicable, but not, it is believed, upon the facts as they are.\nBasically, the right to receive property by will is a creature of the law, and is not a natural right or\none guaranteed or protected by either the Ohio or the United States constitution. (citations omitted).\nIt is a fundamental rule of law in Ohio that a testator may legally entirely disinherit his children.\n(citations omitted). This would seem to demonstrate that, from a constitutional standpoint, a\ntestator may restrict a child\'s inheritance. The court concludes, therefore, that the upholding and\nenforcement of the provisions of Dr. Shapira\'s will conditioning the bequests to his sons upon their\nmarrying Jewish girls does not offend the Constitution of Ohio or of the United States. (citations\nomitted).\nPublic Policy\nThe condition that Daniel\'s share should be \xe2\x80\x98turned over to him if he should marry a Jewish girl\nwhose both parents were Jewish\xe2\x80\x99 constitutes a partial restraint upon marriage. If the condition were\nthat the beneficiary not marry anyone, the restraint would be general or total, and, at least in the case\nof a first marriage, would be held to be contrary to public policy and void. A partial restraint of\n356\n\n\x0cmarriage which imposes only reasonable restrictions is valid, and not contrary to public policy.\n(citations omitted). The great weight of authority in the United States is that gifts conditioned upon\nthe beneficiary\'s marrying within a particular religious class or faith are reasonable. (citations\nomitted).\nPlaintiff contends, however, that in Ohio a condition such as the one in this case is void as against\nthe public policy of this state. In Ohio, as elsewhere, a testator may not attach a condition to a gift\nwhich is in violation of public policy. 56 Ohio Jurisprudence 2d 238, Wills, Section 722; Neidler v.\nDonaldson (P.C. Seneca 1966), 9 Ohio Misc. 208, 224 N.E.2d 404, 38 O.O.2d 360. There can be no\nquestion about the soundness of plaintiff\'s position that the public policy of Ohio favors freedom of\nreligion and that it is guaranteed by Section 7, Article I of the Ohio Constitution, providing that \xe2\x80\x98all\nmen have a natural and indefeasible right to worship Almighty God according to the dictates of their\nown conscience. Plaintiff\'s position that the free choice of religious practice cannot be circumscribed\nor controlled by contract is substantiated by Hackett v. Hackett (C.A. Lucas 1958), 78 Ohio Law Abs.\n485, 150 N.E.2d 431.This case held that a covenant in a separation agreement, incorporated in a\ndivorce decree, that the mother would rear a daughter in the Roman Catholic faith was\nunenforceable. However, the controversial condition in the case at bar is a partial restraint upon\nmarriage and not a covenant to restrain the freedom of religious practice; and, of course, this court\nis not being asked to hold the plaintiff in contempt for failing to marry a Jewish girl of Jewish\nparentage.\nCounsel contends that if \xe2\x80\x98Dr. David Shapira, during his life, had tried to impose upon his son those\nrestrictions set out in his Will he would have violated the public policy of Ohio as shown in Hackett\nv. Hackett. The public policy is equally violated by the restrictions Dr. Shapira has placed on his son\nby his Will. \xe2\x80\x98This would be true, by analogy, if Dr. Shapira, in his lifetime, had tried to force his son\nto marry a Jewish girl as the condition of a completed gift. But it is not true that if Dr. Shapira had\nagreed to make his son an inter-vivos gift if he married a Jewish girl within seven years, that his son\ncould have forced him to make the gift free of the condition.\nIt is noted, furthermore, in this connection, that the courts of Pennsylvania distinguish between\ntestamentary gifts conditioned upon the religious faith of the beneficiary and those conditioned\nupon marriage to persons of a particular religious faith. In In re Clayton\'s Estate, supra (13 Pa.D. & C.\n413), the court upheld a gift of a life estate conditioned upon the beneficiary\'s not marrying a\nwoman of the Catholic faith. In its opinion the court distinguishes the earlier case of Drace v.\nKlinedinst (1922), 275 Pa. 266, 118 A. 907, in which a life estate willed to grandchildren, provided\nthey remained faithful to a particular religion, was held to violate the public policy of Pennsylvania.\nIn Clayton\'s Estate, the court said that the condition concerning marriage did not affect the faith of\nthe beneficiary, and that the condition, operating only on the choice of a wife, was too remote to be\nregarded as coercive of religious faith.\nBut counsel relies upon an Ohio case much more nearly in point, that of Moses v. Zook (C.A. Wayne\n1934), 18 Ohio Law Abs. 373. This case involves a will in which the testatrix gave the income of her\nresidual estate in trust to her niece and nephews for two years and then the remainder to them. Item\ntwelve provides as follows: \xe2\x80\x98If any of my nieces or nephews should marry outside of the Protestant\nFaith, then they shall not receive any part of my estate devised or bequeathed to them.\xe2\x80\x99 The will\ncontained no gift over upon violation of the marriage condition. The holding of the trial court was\nthat item twelve was null and void as being against public policy and the seven other items of the\nwill should be administered as specified in detail by the court. There is nothing in the reported\n357\n\n\x0copinion to show to what extent, if at all, the question of public policy was in issue or contested in\nthe trial court; only one of the several other unrelated holdings of the trial court (not including the\npublic policy holding) was assigned as error; and although the Court of Appeals adopted the\nunexcepted-to holdings of the trial court, there is no citation of authorities or discussion concerning\nthe public policy question itself. The case was apparently not appealed to the Supreme Court, and no\nother cases in Ohio have been cited or found. Moses v. Zook differs in its facts in not containing a gift\nover upon breach of the condition, and appears not to have been a sufficiently litigated or reasoned\nestablishment of the public policy of Ohio which this court should be obliged to follow.\nThe only cases cited by plaintiff\'s counsel in accord with the holding in Moses v. Zook are some\nEnglish cases and one American decision. In England the courts have held that partial restrictions\nupon marriage to persons not of the Jewish faith, or of Jewish parentage, were not contrary to public\npolicy or invalid. Hodgson v. Halford (1879 Eng.) L.R. 11 Ch.Div. 959, 50 A.L.R.2d 742. Other cases\nin England, however, have invalidated forfeitures of similarly conditioned provisions for children\nupon the basis of uncertainty or indefiniteness. (citations omitted). Since the foregoing decisions, a\nlater English case has upheld a condition precedent that a granddaughter-beneficiary marry a person\nof Jewish faith and the child of Jewish parents. The court distinguished the cases cited above as not\napplicable to a condition precedent under which the legatee must qualify for the gift by marrying as\nspecified, and there was found to be no difficulty with indefiniteness where the legatee married\nunquestionably outside the Jewish faith. (citations omitted).\nThe American case cited by plaintiff is that of Maddox v. Maddox (1854), 52 Va. (11 Grattain\'s) 804.\nThe testator in this case willed a remainder to his niece if she remained a member of the Society of\nFriends. When the niece arrived at a marriageable age there were but five or six unmarried men of\nthe society in the neighborhood in which she lived. She married a non-member and thus lost her\nown membership. The court held the condition to be an unreasonable restraint upon marriage and\nvoid, and that there being no gift over upon breach of the condition, the condition was in terrorem,\nand did not avoid the bequest. It can be seen that while the court considered the testamentary\ncondition to be a restraint upon marriage, it was primarily one in restraint of religious faith. The\ncourt said that with the small number of eligible bachelors in the area the condition would have\noperated as a virtual prohibition of the niece\'s marrying, and that she could not be expected to \xe2\x80\x98go\nabroad\xe2\x80\x99 in search of a helpmate or to be subjected to the chance of being sought after by a stranger.\nIn arguing for the applicability of the Maddox v. Maddox test of reasonableness to the case at bar,\ncounsel for the plaintiff asserts that the number of eligible Jewish females in this county would be an\nextremely small minority of the total population especially as compared with the comparatively\nmuch greater number in New York, whence have come many of the cases comprising the weight of\nauthority upholding the validity of such clauses. There are no census figures in evidence. While this\ncourt could probably take judicial notice of the fact that the Jewish community is a minor, though\nimportant segment of our total local population, nevertheless the court is by no means justified in\njudicial knowledge that there is an insufficient number of eligible young ladies of Jewish parentage in\nthis area from which Daniel would have a reasonable latitude of choice. And of course, Daniel is not\nat all confined in his choice to residents of this county, which is a very different circumstance in this\nday of travel by plane and freeway and communication by telephone, from the horse and buggy days\nof the 1854 Maddox v. Maddox decision. Consequently, the decision does not appear to be an\nappropriate yardstick of reasonableness under modern living conditions.\nPlaintiff\'s counsel contends that the Shapira will falls within the principle of Fineman v. Central\n358\n\n\x0cNational Bank (1961), 87 Ohio Law Abs. 236, 175 N.E.2d 837, 18 O.O.2d 33, holding that the public\npolicy of Ohio does not countenance a bequest or device conditioned on the beneficiary\'s obtaining\na separation or divorce from his wife. Counsel argues that the Shapira condition would encourage\nthe beneficiary to marry a qualified girl just to receive the bequest, and then to divorce her afterward.\nThis possibility seems too remote to be a pertinent application of the policy against bequests\nconditioned upon divorce. Most other authorities agree with Fineman v. Bank that as a general\nproposition, a testamentary gift effective only on condition that the recipient divorce or separate\nfrom his or her spouse is against public policy and invalid. 14 A.L.R.3d 1222. But no authorities\nhave been found extending the principle to support plaintiff\'s position. Indeed, in measuring the\nreasonableness of the condition in question, both the father and the court should be able to assume\nthat the son\'s motive would be proper. And surely the son should not gain the advantage of the\navoidance of the condition by the possibility of his own impropriety.\nFinally, counsel urges that the Shapira condition tends to pressure Daniel, by the reward of money,\nto marry within seven years without opportunity for mature reflection, and jeopardizes his college\neducation. It seems to the court, on the contrary, that the seven year time limit would be a most\nreasonable grace period, and one which would give the son ample opportunity for exhaustive\nreflection and fulfillment of the condition without constraint or oppression. Daniel is no more being\n\xe2\x80\x98blackmailed into a marriage by immediate financial gain,\xe2\x80\x99 as suggested by counsel, than would be the\nbeneficiary of a living gift or conveyance upon consideration of a future marriage-an arrangement\nwhich has long been sanctioned by the courts of this state. Thompson v. Thompson (1867), 17 Ohio St.\n649.\nIn the opinion of this court, the provision made by the testator for the benefit of the State of Israel\nupon breach or failure of the condition is most significant for two reasons. First, it distinguishes this\ncase from the bare forfeitures in Moses v. Zook, and in Maddox v. Maddox (including the technical in\nterrorem objection), and, in a way, from the vagueness and indefiniteness doctrine of some of the\nEnglish cases. Second, and of greater importance, it demonstrates the depth of the testator\'s\nconviction. His purpose was not merely a negative one designed to punish his son for not carrying\nout his wishes. His unmistakable testamentary plan was that his possessions be used to encourage\nthe preservation of the Jewish faith and blood, hopefully through his sons, but, if not, then through\nthe State of Israel. Whether this judgment was wise is not for this court to determine. But it is the\nduty of this court to honor the testator\'s intention within the limitations of law and of public policy.\nThe prerogative granted to a testator by the laws of this state to dispose of his estate according to his\nconscience is entitled to as much judicial protection and enforcement as the prerogative of a\nbeneficiary to receive an inheritance.\nIt is the conclusion of this court that public policy should not, and does not preclude the fulfillment\nof Dr. Shapira\'s purpose, and that in accordance with the weight of authority in this country, the\nconditions contained in his will are reasonable restrictions upon marriage, and valid.\n\nIn re Estate of Feinberg, 919 N.E.2d 888 (Ill. 2009)\nJustice GARMAN delivered the judgment of the court, with opinion.\nThis case involves a dispute among the surviving children and grandchildren of Max and Erla\nFeinberg regarding the validity of a trust provision. The circuit court of Cook County found the\n359\n\n\x0ctrust provision unenforceable on the basis that it is contrary to the public policy of the state of\nIllinois. The appellate court affirmed. 383 Ill.App.3d 992, 322 Ill. Dec. 534, 891 N.E.2d 549. Michael\nFeinberg, the Feinbergs\xe2\x80\x99 son and coexecutor of their estates, filed a petition for leave to appeal\npursuant to Supreme Court Rule 315 (210 Ill.2d R. 315), which we allowed. We also allowed\nAgudath Israel of America, the National Council of Young Israel, and the Union of Orthodox\nJewish Congregations of America to file a brief amici curiae pursuant to Supreme Court Rule 345 (210\nIll.2d R. 345)\nFor the reasons that follow, we reverse.\nBACKGROUND\nMax Feinberg died in 1986. He was survived by his wife, Erla, their adult children, Michael and\nLeila, and five grandchildren.\nPrior to his death, Max executed a will and created a trust. Max\xe2\x80\x99s will provided that upon his death,\nall of his assets were to \xe2\x80\x9cpour over\xe2\x80\x9d into the trust, which was to be further divided for tax reasons\ninto two trusts, \xe2\x80\x9cTrust A\xe2\x80\x9d and \xe2\x80\x9cTrust B.\xe2\x80\x9d If she survived him, Erla was to be the lifetime beneficiary\nof both trusts, first receiving income from Trust A, with a limited right to withdraw principal. If\nTrust A were exhausted, Erla would then receive income from Trust B, again with a limited right to\nwithdraw principal.\nUpon Erla\xe2\x80\x99s death, any assets remaining in Trust A after the payment of estate taxes were to be\ncombined with the assets of Trust B. The assets of Trust B were then to be distributed to Max\xe2\x80\x99s\ndescendants in accordance with a provision we shall call the \xe2\x80\x9cbeneficiary restriction clause.\xe2\x80\x9d This\nclause directed that 50% of the assets be held in trust for the benefit of the then-living descendants\nof Michael and Leila during their lifetimes. The division was to be on a per stirpes basis, with\nMichael\xe2\x80\x99s two children as lifetime beneficiaries of one quarter of the trust and Leila\xe2\x80\x99s three children\nas lifetime beneficiaries of the other one quarter of the trust. However, any such descendant who\nmarried outside the Jewish faith or whose non-Jewish spouse did not convert to Judaism within one\nyear of marriage would be \xe2\x80\x9cdeemed deceased for all purposes of this instrument as of the date of\nsuch marriage\xe2\x80\x9d and that descendant\xe2\x80\x99s share of the trust would revert to Michael or Leila.\nIn addition, the trust instrument gave Erla a limited testamentary power of appointment over the\ndistribution of the assets of both trusts and a limited lifetime power of appointment over the assets\nof Trust B. Under the limiting provision, Erla was allowed to exercise her power of appointment\nonly in favor of Max\xe2\x80\x99s descendants. Thus, she could not name as remaindermen individuals who\nwere not Max\xe2\x80\x99s descendants or appoint to a charity. The parties dispute whether Erla\xe2\x80\x99s power of\nappointment was limited to those descendants not deemed deceased under the beneficiary\nrestriction clause. The trial court did not make a finding on this question and the appellate court did\nnot discuss it.\nErla exercised her lifetime power of appointment over Trust B in 1997, directing that, upon her\ndeath, each of her two children and any of her grandchildren who were not deemed deceased under\nMax\xe2\x80\x99s beneficiary restriction clause receive $250,000. In keeping with Max\xe2\x80\x99s original plan, if any\ngrandchild was deemed deceased under the beneficiary restriction clause, Erla directed that his or\nher share be paid to Michael or Leila.\n360\n\n\x0cBy exercising her power of appointment in this manner, Erla revoked the original distribution\nprovision and replaced it with a plan that differs from Max\xe2\x80\x99s plan in two significant respects. First,\nErla altered the distribution scheme from per stirpes to per capita, permitting each of the grandchildren\nto take an equal share, rather than favoring Michael\xe2\x80\x99s two children over Leila\xe2\x80\x99s three children.\nSecond, Erla designated a fixed sum to be distributed to each eligible descendant at the time of her\ndeath, replacing Max\xe2\x80\x99s plan for a lifetime trust for such descendants. The record suggests that Erla\xe2\x80\x99s\ngifts will deplete the corpus of the trust, leaving no trust assets subject to distribution under Max\xe2\x80\x99s\noriginal plan. Thus, while Erla retained Max\xe2\x80\x99s beneficiary restriction clause, his distribution provision\nnever became operative.\nAll five grandchildren married between 1990 and 2001. By the time of Erla\xe2\x80\x99s death in 2003, all five\ngrandchildren had been married for more than one year. Only Leila\xe2\x80\x99s son, Jon, met the conditions of\nthe beneficiary restriction clause and was entitled to receive $250,000 of the trust assets as directed\nby Erla.\nThis litigation followed, pitting Michael\xe2\x80\x99s daughter, Michele, against Michael, coexecutor of the\nestates of both Max and Erla.\nThe trial court invalidated the beneficiary restriction clause on public policy grounds. A divided\nappellate court affirmed, holding that \xe2\x80\x9cunder Illinois law and under the Restatement (Third) of\nTrusts, the provision in the case before us is invalid because it seriously interferes with and limits the\nright of individuals to marry a person of their own choosing.\xe2\x80\x9d 383 Ill.App.3d at 997, 322 Ill. Dec.\n534, 891 N.E.2d 549. In reaching this conclusion, the appellate court relied on decisions of this\ncourt dating back as far as 1898 and, as noted, on the Restatement (Third) of Trusts.\nISSUE PRESENTED\nAs a threshold matter, we must clarify the issue presented. We need not consider whether Max\xe2\x80\x99s\noriginal testamentary scheme is void as a matter of public policy because Erla altered his scheme in\n1997. Indeed, she could have done so again at any time before her death in 2003, exercising her\nlifetime or testamentary powers of appointment in any number of ways. For example, she could\nhave named her grandson, Jon, as the sole beneficiary of the entire trust, or excluded the\ngrandchildren entirely, appointing the entire corpus of the trust to Michael and Leila.\nIndeed, counsel for Michele acknowledged at oral argument that Max and Erla could have\naccomplished the goal of benefitting only those grandchildren who married within their religious\ntradition by individually naming those grandchildren as beneficiaries of the will or the trust, without\nimplicating public policy. Counsel argued that the violation of public policy occurred when Max\nused a religious description to define a class or category of descendants he wished to benefit, rather\nthan mention them by name.\nOf course, at the time Max prepared his estate plan, his grandchildren were too young to marry and\nit was possible that more grandchildren might have been born before the trust provisions took\neffect. As a result, Max could not have accomplished his purpose in the manner suggested by\nMichele. Even by the time Erla exercised her power of appointment, not all of the grandchildren\nhad married.\nThus, the question we must answer is whether the holder of a power of appointment over the assets\n361\n\n\x0cof a trust may, without violating the public policy of the state of Illinois, direct that the assets be\ndistributed at the time of her death to then-living descendants of the settlor, deeming deceased any\ndescendant who has married outside the settlor\xe2\x80\x99s religious tradition. In effect, we are not called upon\nto consider the validity of Max\xe2\x80\x99s estate plan as a whole, which would have continued to hold the\nassets in trust for the benefit of the grandchildren only so long as they complied with the restriction.\nRather, we must assess Max\xe2\x80\x99s beneficiary restriction clause in conjunction with Erla\xe2\x80\x99s directions for\ndistribution.\nWhen the issue is clarified in this way, it becomes apparent that many of the arguments raised by\nMichele are not relevant. For example, under Max\xe2\x80\x99s plan, an unmarried grandson would have begun\nto receive distributions from Trust B upon Erla\xe2\x80\x99s death, only to forfeit further such payments if he\nwere to marry a non-Jewish woman who did not convert to Judaism within one year. We need not\ndecide if such a provision would violate public policy because no such provision is implicated in the\npresent case.\nMichele also suggests that a granddaughter who was married to a non-Jewish man at the time of\nErla\xe2\x80\x99s death might subsequently divorce and remarry, this time to a Jewish spouse, and make a claim\nupon the trust. This circumstance would raise the issue of whether such a descendant, previously\ndeemed deceased, would be \xe2\x80\x9cresurrected.\xe2\x80\x9d Such an occurrence would require construction of the\nlanguage of the trust document. Under Erla\xe2\x80\x99s plan, however, this circumstance cannot arise because\na fixed amount became distributable upon her death only to those grandchildren who then met the\nrequirements previously set by Max.\nSimilarly, Michele\xe2\x80\x99s argument that the beneficiary restriction clause is invalid because a court might\nbe called upon to determine whether the spouse of a particular descendant is or is not Jewish is not\nwell taken. It is undisputed in the present case that only one of the five grandchildren meets the\nrequirements established by Max.\nSTANDARD OF REVIEW\nThis court has not had occasion to identify the applicable standard of review on the question of\nwhether a provision in a trust document or will is void as a matter of public policy. It is clear,\nhowever, that such findings are subject to de novo review, because public policy is necessarily a\nquestion of law. Holstein v. Grossman, 246 Ill.App.3d 719, 726, 186 Ill. Dec. 592, 616 N.E.2d 1224\n(1993), citing Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180, 91 N.E. 1041 (1910). This conclusion\nis consistent with the well-established principle that whether a provision in a contract, insurance\npolicy, or other agreement is invalid because it violates public policy is a question of law, which we\nreview de novo. O\xe2\x80\x99Hara v. Ahlgren, Blumenfeld & Kempster, 127 Ill.2d 333, 130 Ill. Dec. 401, 537 N.E.2d\n720 (1989)(affirming grant of summary judgment on basis that fee-sharing agreement offended\npublic policy).\nANALYSIS\nMichael argues before this court that the beneficiary restriction clause in his father\xe2\x80\x99s trust was\nintended \xe2\x80\x9cto encourage and support Judaism and preservation of Jewish culture in his own family,\xe2\x80\x9d\nand that it was not binding upon Erla, who exercised her power of appointment consistently with\nthe provision because it expressed her intent as well as Max\xe2\x80\x99s. Michael argues, further, that even if\n362\n\n\x0cMax\xe2\x80\x99s beneficiary restriction was not revocable by Erla, the provision does not violate the public\npolicy of this state when it is given effect via his mother\xe2\x80\x99s distribution scheme. He asserts that the\ndistribution scheme is a valid partial restraint on marriage of a type that has long been enforced in\nIllinois and elsewhere. According to Michael, the beneficiary restriction clause has no prospective\neffect that might subsequently influence a descendant\xe2\x80\x99s decisions regarding marriage or divorce\nbecause, upon Erla\xe2\x80\x99s death, no contingencies remained. He distinguishes the cases relied upon by\nthe appellate court and urges this court to reject the cited Restatement provision as not accurately\nstating Illinois law.\nMichele defends the Restatement provision and argues that this case comes within a line of cases\ndating back to 1898 in which this court invalidated testamentary provisions that operated to\ndiscourage the subsequent lawful marriage by a legatee or to encourage a legatee to obtain a divorce.\nSpecifically, she argues that under Ransdell v. Boston, 172 Ill. 439, 50 N.E. 111 (1898), testamentary\nrestrictions on marriage are valid only if they operate to benefit the intended beneficiary. Further,\nshe argues that enforcement of the clause would violate both state and federal constitutions and that\nit violates public policy by offering a financial inducement to embrace a particular religion.\nWe note that this case involves more than a grandfather\xe2\x80\x99s desire that his descendants continue to\nfollow his religious tradition after he is gone. This case reveals a broader tension between the\ncompeting values of freedom of testation on one hand and resistance to \xe2\x80\x9cdead hand\xe2\x80\x9d control on the\nother. This tension is clearly demonstrated by the three opinions of the appellate court. The\nauthoring justice rejected the argument that the distribution scheme is enforceable because it\noperated at the time of Erla\xe2\x80\x99s death and could not affect future behavior, stating that its \xe2\x80\x9cclear intent\nwas to influence the marriage decisions of Max\xe2\x80\x99s grandchildren based on a religions criterion.\xe2\x80\x9d 383\nIll.App.3d at 997, 322 Ill. Dec. 534, 891 N.E.2d 549. The concurring justice opined that while such\nrestrictions might once have been considered reasonable, they are no longer reasonable. 383\nIll.App.3d at 1000, 322 Ill. Dec. 534, 891 N.E.2d 549 (Quinn, P.J., specially concurring). The\ndissenting justice noted that under the facts of this case, grandchildren who had complied with the\nrestrictions would \xe2\x80\x9cimmediately receive their legacy\xe2\x80\x9d upon Erla\xe2\x80\x99s death (383 Ill.App.3d at 1000, 322\nIll. Dec. 534, 891 N.E.2d 549) (Greiman, J., dissenting)), and that the weight of authority is that a\ntestator has a right to make the distribution of his bounty conditional on the beneficiary\xe2\x80\x99s adherence\nto a particular religious faith (383 Ill.App.3d at 1002, 322 Ill. Dec. 534, 891 N.E.2d 549).\nWe, therefore, begin our analysis with the public policy surrounding testamentary freedom and then\nconsider public policy pertaining to testamentary or trust provisions concerning marriage.\nWhen we determine that our answer to a question of law must be based on public policy, it is not\nour role to make such policy. Rather, we must discern the public policy of the state of Illinois as\nexpressed in the constitution, statutes, and long-standing case law. O\xe2\x80\x99Hara, 127 Ill.2d at 341, 130 Ill.\nDec. 401, 537 N.E.2d 730.We will find a contract provision against public policy only \xe2\x80\x9c \xe2\x80\x98 \xe2\x80\x9cif it is\ninjurious to the interests of the public, contravenes some established interest of society, violates\nsome public statute, is against good morals, tends to interfere with the public welfare or safety, or is\nat war with the interests of society or is in conflict with the morals of the time.\xe2\x80\x9d \xe2\x80\x99 \xe2\x80\x9d Vine Street Clinic\nv. Health Link, Inc., 222 Ill.2d 276, 296, 305 Ill. Dec. 617, 856 N.E.2d 422 (2006), quoting E & B\nMarketing Enterprises, Inc. v. Ryan, 209 Ill. App.3d 626, 630, 154 Ill. Sec. 339, 568 N.E.2d 339 (1991),\nquoting Marvin N. Benn & Associates, Ltd. V. Nelsen Steel & Wire, Inc., 107 Ill.App.3d 442, 446, 63 Ill.\nDec. 251, 437 N.E.2d 900 (1982). Thus,\n363\n\n\x0c\xe2\x80\x9cIn deciding whether an agreement violates public policy, courts determine whether the agreement\nis so capable of producing harm that its enforcement would be contrary to the public interest.\n[Citation.] The courts apply a strict test in determining when an agreement violates public policy.\n[Citation.] The power to invalidate part or all of an agreement on the basis of public policy is used\nsparingly because private parties should not be needlessly hampered in their freedom to contract\nbetween themselves. [Citation.] Whether an agreement is contrary to public policy depends on the\nparticular facts and circumstances of the case.\xe2\x80\x9d Kleinwort Benson North America, Inc. v. Quantum\nFinancial Services, Inv., 181 Ill.2d 214, 226, 229 Ill. Dec. 496, 692 N.E.2d 269 (1998).\nBecause, as will be discussed below, the public policy of this state values freedom of testation as well\nas freedom of contract, these same principles guide our analysis in the present case.\nPublic Policy Regarding Freedom of Testation\nNeither the Constitution of the United States nor the Constitution of the State of Illinois speaks to\nthe question of testamentary freedom. However, our statutes clearly reveal a public policy in support\nof testamentary freedom.\nThe Probate Act places only two limits on the ability of a testator to choose the objects of his\nbounty. First, the Act permits a spouse to renounce a testator\xe2\x80\x99s will, \xe2\x80\x9cwhether or not the will\ncontains any provision for the benefit of the surviving spouse.\xe2\x80\x9d 755 ILCS 5/2-8 (West 2008). Thus,\nabsent a valid prenuptial or postnuptial agreement (see, e.g., Golden v. Golden, 393 Ill. 536, 66 N.E.2d\n662 (1946)(wife can effectively bind herself to accept provisions of husband\xe2\x80\x99s will, thereby estopping\nher from renouncing the will after his death)), the wishes of a surviving spouse can trump a\ntestator\xe2\x80\x99s intentions. Second, a child born to a testator after the making of a will is \xe2\x80\x9centitled to\nreceive the portion of the estate to which he would be entitled if the testator died intestate,\xe2\x80\x9d unless\nprovision is made in the will for the child or the will reveals the testator\xe2\x80\x99s intent to disinherit the\nchild. 755 ILCS 5/4-10 (West 2008).\nThe public policy of the state of Illinois as expressed in the Probate Act is, thus, one of broad\ntestamentary freedom, constrained only by the rights granted to a surviving spouse and the need to\nexpressly disinherit a child born after execution of the will if that is the testator\xe2\x80\x99s desire.\nUnder the Probate Act, Max and Erla had no obligation to make any provision at all for their\ngrandchildren. Indeed, if Max had died intestate, Erla, Michael, and Leila would have shared his\nestate (755 ILCS 5/2-1 (a) (West 2008)), and if Erla had died intestate, only Michael and Leila would\nhave taken (755 ILCS 5/2-1 (b) (West 2008)). Surely, the grandchildren have no greater claim on\ntheir grandparents\xe2\x80\x99 testate estates than they would have had on intestate estates.\nSimilarly, under the Trusts and Trustees Act, \xe2\x80\x9c[a] person establishing a trust may specify in the\ninstrument the rights, powers, duties, limitations and immunities applicable to the trustee,\nbeneficiary and others and those provisions where not otherwise contrary to law shall control,\nnotwithstanding this Act.\xe2\x80\x9d 760 ILCS 5/3 (West 2008). Thus, the legislature intended that the settlor\nof a trust have the freedom to direct his bounty as he sees fit, even to the point of giving effect to a\nprovision regarding the rights of beneficiaries that might depart from the standard provisions of the\nAct, unless \xe2\x80\x9cotherwise contrary to law.\xe2\x80\x9d\nAnother legislative enactment that reveals a strong public policy of freedom of testation was the\n364\n\n\x0cadoption, in 1969, of the Statute Concerning Perpetuities (765 ILCS 305/1 et. seq. (West 2008)), for\nthe purpose of modifying the common law rule that a will or trust provision that violated the rule\nagainst perpetuities was void ab initio. 765 ILCS 305/2 (West 2008). The statute permits the settlor\nof a trust to create a \xe2\x80\x9cqualified perpetual trust\xe2\x80\x9d by including in the instrument a provision that the\nrule against perpetuities does not apply and by granting certain specified powers to the trustee. 765\nILCS 305/3 (a\xe2\x80\x935), 4(a)(8) (West 2008). The statute also specifies other circumstances under which\nthe rule shall not apply. 765 ILCS 305/4 (a)(1) through (a)(7) (West 2008). In addition, the statute\nadopts a set of rules to be applied when determining whether an interest violates the rule against\nperpetuities. 765 ILCS 305/4 (c)(1) through (c)(3) (West 2008). With regard to trusts, the statute\nprovides that a trust containing a provision that would violate the rule against perpetuities, as\nmodified by the statute, shall terminate 21 years after the death of the last surviving beneficiary who\nwas living at the beginning of the perpetuities period (765 ILCS 305/5 (a)(A) (West 2008)) or else at\nthe end of the 21\xe2\x80\x93year perpetuities period if no beneficiary was living when the period began to run\n(765 ILCS 305/5 (a)(B) (West 2008)). Thus, the trust is not rendered void ab initio, but is merely\nterminated by operation of law at the conclusion of the perpetuities period.\nAlso, in 1953, the legislature adopted the Rule in Shelley\xe2\x80\x99s Case Abolishment Act (765 ILCS 345/1\net. seq. (West 2008)), to abolish the common law rule that a life estate to A, with a remainder to A\xe2\x80\x99s\nheirs, shall pass to A in fee simple.\nAs demonstrated by the Probate Act, the Trusts Act, the Statute Concerning Perpetuities, and the\nRule in Shelley\xe2\x80\x99s Case Abolishment Act, the public policy of the state of Illinois protects the ability\nof an individual to distribute his property, even after his death, as he chooses, with minimal\nrestrictions under state law.\nOur case law also demonstrates the existence of a public policy favoring testamentary freedom,\nreflected in the many cases in which a court strives to discover and to give effect to the intent of a\ndeceased testator or settlor of a trust. See, e.g., Harris Trust & Savings Bank v. Donovan, 145 Ill.2d 166,\n172, 163 Ill. Dec. 854, 582 N.E.2d 120 (1991)(\xe2\x80\x9cThe first purpose in construing a trust is to discover\nthe settlor\xe2\x80\x99s intent from the trust as a whole, which the court will effectuate if it is not contrary to\npublic policy\xe2\x80\x9d); Harris Trust & Savings Bank v. Beach, 118 Ill.2d 1, 3, 112 Ill. Dec. 224, 513 N.E.2d 833\n(1987) (\xe2\x80\x9cIn construing either a trust or a will the challenge is to find the settlor\xe2\x80\x99s or testator\xe2\x80\x99s intent\nand, provided that the intention is not against public policy, to give it effect\xe2\x80\x9d).\nThe record, via the testimony of Michael and Leila, reveals that Max\xe2\x80\x99s intent in restricting the\ndistribution of his estate was to benefit those descendants who opted to honor and further his\ncommitment to Judaism by marrying within the faith. Max had expressed his concern about the\npotential extinction of the Jewish people, not only by holocaust, but by gradual dilution as a result of\nintermarriage with non-Jews. While he was willing to share his bounty with a grandchild whose\nspouse converted to Judaism, this was apparently as far as he was willing to go.\nThere is no question that a grandparent in Max\xe2\x80\x99s situation is entirely free during his lifetime to\nattempt to influence his grandchildren to marry within his family\xe2\x80\x99s religious tradition, even by\noffering financial incentives to do so. The question is, given our public policy of testamentary\nfreedom, did Max\xe2\x80\x99s beneficiary restriction clause as given effect by Erla\xe2\x80\x99s appointment violate any\nother public policy of the state of Illinois, thus rendering it void?\n\n365\n\n\x0cPublic Policy Regarding Terms Affecting Marriage or Divorce\nThe contrary law relied upon by the appellate court to invalidate Max\xe2\x80\x99s beneficiary restriction clause\nis found in three decisions of this court: Ransdell, 172 Ill. 439, 50 N.E. 111, Winterland v. Winterland,\n389 Ill. 384, 59 N.E.2d 661 (1945), and Estate of Gerbing, 61 Ill.2d 503, 337 N.E.2d 29 (1975) (which\noverruled Winterland in part). The appellate court concluded that the \xe2\x80\x9clanguage and circumstances\xe2\x80\x9d\nof the testamentary provisions in these cases, \xe2\x80\x9cwhich Illinois courts have found to be against public\npolicy, are strikingly similar to the instant case.\xe2\x80\x9d 383 Ill.App.3d at 996, 322 Ill. Dec. 534, 891 N.E.2d\n549. Specifically, the appellate court invoked the \xe2\x80\x9cprinciple that testamentary provisions are invalid if\nthey discourage marriage or encourage divorce.\xe2\x80\x9d 383 Ill.App.3d at 996, 322 Ill. Dec. 534, 891 N.E.2d\n549.\nIn Ransdell, the testator\xe2\x80\x99s will included provisions for his wife, his son, and his daughter. At the time\nthe will was executed, the son and his wife were separated and cross-suits for divorce were pending.\nThe father\xe2\x80\x99s bequest to the son provided that the property be held in trust, giving him use and\nincome of the land for life, or \xe2\x80\x9cuntil such time as he * * * shall become sole and unmarried,\xe2\x80\x9d at\nwhich time the trustee was to convey title to the land to him in fee simple. Ransdell, 172 Ill. at 440, 50\nN.E. 111. If the son died childless while still married to the wife, the land was to go to other\ndevisees. Several years after the father\xe2\x80\x99s death, the son, who was still married but living apart from\nhis wife, challenged the provision on public policy grounds. The circuit court granted judgment for\nthe defendants and this court affirmed.\nThis court acknowledged the long-standing rule that conditions annexed to a gift that have the\ntendency to induce spouses to divorce or to live separately are void on grounds of public policy.\nRansdell, 172 Ill. at 440, 50 N.E. 111. However, the testator\xe2\x80\x99s purpose in this case \xe2\x80\x9cwas simply to\nsecure the gift to his son in the manner which, in his judgment, would render it of the greatest\nbenefit to him in view of the relations then existing between him and his wife\xe2\x80\x9d (Ransdell, 172 Ill. at\n440, 50 N.E. 111), which were strained, to say the least. \xe2\x80\x9cCertainly,\xe2\x80\x9d this court noted, \xe2\x80\x9cit cannot be\nsaid that the condition tended to encourage either the separation or the bringing of a divorce suit,\nboth having taken place long prior to the execution of the will.\xe2\x80\x9d Ransdell, 172 Ill. at 440, 50 N.E.\n111.\nThis court weighed two potentially competing public policies, stating that it was \xe2\x80\x9cof the first\nimportance to society that contract and testamentary gifts which are calculated to prevent lawful\nmarriages or to bring about the separation or divorcement of husbands and wives should not be\nupheld.\xe2\x80\x9d Ransdell, 172 Ill. at 446, 50 N.E. 111. On the other hand, \xe2\x80\x9cit is no less important that\npersons of sound mind and memory, free from restraint and undue influence, should be allowed to\ndispose of their property by will, with such limitations and conditions as they believe for the best\ninterest of their donees.\xe2\x80\x9d Ransdell, 172 Ill. at 446, 50 N.E. 111. Because the testator had not\ndisinherited his son if he remained married, but made one provision for him in case he remained\nmarried (a life estate) and a different provision if he divorced (taking title in fee simple), the\ncondition was not contrary to public policy.\nFinally, this court distinguished between a condition subsequent (for example, if the will devised\nproperty to the beneficiary in trust for life, subject to divestment if he married), and a condition\nprecedent, which directs that upon the fulfillment of the condition, ownership of the property is to\nvest in the beneficiary. Ransdell, 172 Ill. at 447, 50 N.E. 111. The condition subsequent, such as one\nthat would prohibit marriage generally, would be void and the donee would retain the property,\n366\n\n\x0cunaffected by the violation of the condition. A condition precedent would be given effect, because\nuntil the condition was met, the beneficiary\xe2\x80\x99s interest was a mere expectancy. Ransdell, 172 Ill. at 44748, 50 N.E. 111.\nThe appellate court cited Ransdell for the \xe2\x80\x9c general rule that testamentary provisions which act as a\nrestraint upon marriage or which encourage divorce are void as against public policy\xe2\x80\x9d and\ndistinguished Ransdell from the present case on the basis that the Ransdells\xe2\x80\x99 marriage was \xe2\x80\x9calready in\ndisrepair\xe2\x80\x9d at the time the will was executed. 383 Ill.App.3d at 994, 322 Ill. Dec. 534, 891 N.E.2d 549.\nThe appellate court noted that subsequent Illinois cases, however, have \xe2\x80\x9creaffirmed the underlying\nprinciple.\xe2\x80\x9d 383 Ill.App.3d at 995, 322 Ill. Dec. 534, 891 N.E.2d 549.\nOne such case was Winterland, in which the testator created a trust for his wife that, upon her death,\nwas to be distributed equally to their 11 children. However, in a later codicil, the testator directed\nthat the share intended for their son, George, was to be held in trust for him \xe2\x80\x9c\xe2\x80\x98so long as he may live\nor until his present wife shall have died or been separated from him by absolute divorce.\xe2\x80\x99 \xe2\x80\x9d\nWinterland, 389 Ill. at 385, 59 N.E.2d 661. George predeceased his wife and she and their son\nchallenged the codicil as promoting divorce, contrary to good morals, and against public policy.\nWinterland, 389 Ill. at 386, 59 N.E.2d 661. This court distinguished Ransdell on the basis that the\ncouple\xe2\x80\x99s separation was \xe2\x80\x9calready an accomplished fact and a divorce suit was then pending\xe2\x80\x9d at the\ntime the testator made his will. Winterland, 389 Ill. at 387, 59 N.E.2d 661. But where no separation\nwas contemplated, the \xe2\x80\x9cnatural tendency of the provision\xe2\x80\x9d was \xe2\x80\x9cto encourage divorce.\xe2\x80\x9d For that\nreason, the provision was void. Winterland, 389 Ill. at 387-88, 59 N.E.2d 661. This court announced\nthat it is \xe2\x80\x9cthe public policy of this state to safeguard and protect the marriage relation, and this court\nwill hold as contrary to that policy and void any testamentary provision tending to disturb or destroy\nan existing marriage.\xe2\x80\x9d Winterland, 389 Ill. at 387, 59 N.E.2d 661.\nThis court further found that the codicil established two separate and divisible conditions upon\nwhich the trust would be distributed to George. First, George\xe2\x80\x99s life estate was to continue until the\ndeath of his wife; second, his life estate would terminate upon their absolute divorce. This court\nrejected the argument that the life estate itself failed and that title to the property vested in George\nupon his father\xe2\x80\x99s death. Rather, while the second condition was void, the first condition was not\nand, thus, could be given effect. Winterland, 389 Ill. at 388, 59 N.E.2d 661.\nIn Gerbing, this court considered the validity of a provision in a testamentary trust that would have\nterminated the trust and distributed the corpus to the testator\xe2\x80\x99s son in the event that his wife\npredeceased him or the couple divorced and remained divorced for two years. Gerbing, 61 Ill.2d at\n505, 337 N.E.2d 29. This court restated the general principle that \xe2\x80\x9ca devise or bequest, the tendency\nof which is to encourage divorce or bring about a separation of husband and wife is against public\npolicy.\xe2\x80\x9d Gerbing, 61 Ill.2d at 507, 337 N.E.2d 29. However, if the \xe2\x80\x9cdominant motive of the testator is\nto provide support in the event of such separation or divorce the condition is valid.\xe2\x80\x9d Gerbing, 61\nIll.2d at 507, 337 N.E.2d 29. Further, unless the couple was separated or a divorce was pending at\nthe time the will was executed, the \xe2\x80\x9cexception to the general rule announced in Ransdell\xe2\x80\x9d was not\napplicable. Gerbing, 61 Ill.2d at 508, 337 N.E.2d 29. This court found the provision void, but\ndeclined to sever the two conditions, as it had done in Winterland. Finding that it was the testator\xe2\x80\x99s\ngeneral intent to benefit her son and that she would have preferred that he take the corpus of the\ntrust, even if he remained married, rather than have him take nothing, this court found the entire\nprovision void, overruling Winterland to the extent it held otherwise. Gerbing, 61 Ill.2d at 512, 337\nN.E.2d 29.\n367\n\n\x0cIn the present case, the appellate court found the \xe2\x80\x9clanguage and circumstances\xe2\x80\x9d of these three cases\n\xe2\x80\x9cstrikingly similar\xe2\x80\x9d to the present case and saw \xe2\x80\x9cno reason to depart from this well-established\nprinciple\xe2\x80\x9d of these cases. 383 Ill.App.3d at 996, 322 Ill. Dec. 534, 891 N.E.2d 549. We disagree with\nthe appellate court\xe2\x80\x99s conclusion regarding the similarity of the present case to the cited cases. The\nbeneficiary restriction clause as given effect by Erla\xe2\x80\x99s distribution scheme does not implicate the\nprinciple that trust provisions that encourage divorce violate public policy. That is, the present case\ndoes not involve a testamentary or trust provision that is \xe2\x80\x9ccapable of exerting * * * a disruptive\ninfluence upon an otherwise normally harmonious marriage\xe2\x80\x9d by causing the beneficiary to choose\nbetween his or her spouse and the distribution. Gerbing, 61 Ill.2d at 508, 337 N.E.2d 29. The\nchallenged provision in the present case involves the decision to marry, not an incentive to divorce.\nThis court has considered the validity of restrictions affecting marriage in cases going back as far as\n1857.\nIn Shackelford v. Hall, 19 Ill. 212 (1857), the testator, Hall, left his estate to his wife for life or until she\nremarried, with the remainder to his four children, subject to the condition that they not marry\nbefore the age of 21. Any child who married before his or her twenty-first birthday was to receive\none dollar only. The only daughter, Eliza, married four months before her twenty-first birthday, with\nthe approval of her eldest brother, the executor of their father\xe2\x80\x99s estate. This court described the\nprovision as a \xe2\x80\x9cdevise with a condition subsequent,\xe2\x80\x9d because the remainder interest vested in the\nfour children immediately upon the death of the testator, \xe2\x80\x9csubject to be defeated by their marriage\nbefore they should attain that age.\xe2\x80\x9d Shackelford v. Hall, 19 Ill. at 213. This court noted that:\n\xe2\x80\x9cwhoever will take the trouble to examine this branch of the law attentively, will find that the\ntestator may impose reasonable and prudent restraints upon the marriage of the objects of his\nbounty, by means of conditions precedent, or subsequent, or by limitations, while he may not,\nwith one single exception, impose perpetual celibacy upon the objects of his bounty, by means of\nconditions subsequent or limitations. That exception is in the case of a husband in making\nbequests or legacies to his own wife. He may rightfully impose the condition of forfeiture upon\nher subsequent marriage.\xe2\x80\x9d Shackelford v. Hall, 19 Ill. at 214-15.\nAs for other conditions affecting marriage that might be imposed by a testator, this court said that:\n\xe2\x80\x9c[a]n examination of the subject, will show that the courts have very rarely held such condition\nvoid, although it might appear harsh, arbitrary and unreasonable, so as it did not absolutely\nprohibit the marriage of the party, within the period wherein issue of the marriage might be\nexpected. It is enough for our present purpose, and we will go no further now, for it is not\nnecessary, that it has been nowhere held, or pretended, that an absolute prohibition of marriage till\ntwenty-one years of age is not reasonable and lawful, and must not be upheld, as a good condition,\nthe violation of which may defeat a vested estate. The condition, then, annexed to this devise, was\nproper, reasonable and lawful, and its violation must be held to have forfeited the estate devised,\nunless it can be saved by some other equally well settled principle of law.\xe2\x80\x9d Shackelford v. Hall, 19 Ill.\n215.\nFurther:\n\xe2\x80\x9cThe facts of the case show, that all of the devisees of the estate in remainder, now in\ncontroversy, were the children and heirs at law of the testator, and as such heirs at law, had expectations\n368\n\n\x0cof this estate. In the absence of the will, each would have been entitled to his or her respective\nproportions of it, according to our statute of descent. when such is the case, the condition subsequent,\nthe breach of which shall divest the estate which has become vested in the devisee by the will, must be\nshown to have been brought home to the knowledge of the devisee, before the breach, in order to\nmark the forfeiture.\xe2\x80\x9d (Emphases added.) Shackelford v. Hall, 19 Ill. at 215-16.\nIn the end, this court found that the marriage of Hall\xe2\x80\x99s daughter prior to her twenty-first birthday\ndid not divest her of the remainder interest conveyed to her upon her father\xe2\x80\x99s death. The basis for\nthis decision was not that her father\xe2\x80\x99s partial restraint upon marriage was invalid, but that her\nremainder interest vested upon his death and could not be divested by a subsequent act on her part,\nabsent a showing that she had notice of the condition subsequent. Other factors supporting this\nresult were that she would have been one of her father\xe2\x80\x99s heirs at law should he have died intestate\nand that her brother, the executor, had unclean hands:\n\xe2\x80\x9cAnd this rule is in harmony with the general principles of law, which always lean hard against a\nforfeiture of estates once vested, and that it will not allow such forfeiture, where there has been no\nlaches or misconduct. In the case before us, we must assume that the defendant did not know of the\nexistence of the will, and much less of the condition which it contained, that she should not marry till she was twentyone years of age, under the penalty of forfeiting her interest in her father\xe2\x80\x99s estate. In ignorance of the will, she\nsupposed she was entitled to take as heir without any condition. When we look at this case as it is\npresented by the record, we see it would be a monstrous piece of injustice to enforce this\nforfeiture against her. Here was her elder brother, who was an executor named in the will,\nknowing of the condition of forfeiture, had an interest in keeping it from her, that she might, by\ndoing the prohibited act, incur the forfeiture, that her portion might go to himself and the other\nheirs of the testator. Under the influence of this direct interest, he suffers her to go on in\nignorance of the will, and marry only four months before she attained the age of twenty-one years,\nand now he comes forward and claims the benefit of the forfeiture, and insists upon depriving her\nof the portion devised to her by the will. To sustain this claim, would be to offer a premium for\nthe commission of the most heartless frauds. * * * We have not the least doubt that, upon the\nsoundest principles of law and morality, she must take the estate devised, discharged of the\ncondition.\xe2\x80\x9d (Emphasis added.) Shackelford v. Hall, 19 Ill. 217-18.\nIn the present case, Michael argues that the beneficiary restriction clause is a similar \xe2\x80\x9creasonable and\nprudent restraint\xe2\x80\x9d that does not operate as a complete restraint upon marriage. Rather, the clause\ndisqualifies from receipt of a share of the trust assets any grandchild who has chosen to marry\noutside the religious tradition their grandparents valued so highly.\nMore importantly, we note that, unlike Eliza Hall, the grandchildren did not receive a vested interest\nin the trust upon Max\xe2\x80\x99s death. By creating a power of appointment in Erla, Max created a situation\nin which the interests of the grandchildren were contingent on whether and in what manner she\nwould exercise her lifetime and testamentary powers of appointment. Thus, the grandchildren had a\nmere expectancy that they might receive some portion of the remainder at the conclusion of Erla\xe2\x80\x99s\nlife estate. No one had a vested interest in the remainder of the trust assets until Erla\xe2\x80\x99s death\nresolved all contingencies. Further, unlike Hall\xe2\x80\x99s daughter, the grandchildren in the present case were\nnot Max\xe2\x80\x99s or Erla\xe2\x80\x99s heirs at law. Finally, while the record is unclear whether any or all of the\ngrandchildren were aware of the existence of the beneficiary restriction clause, because they had no\nvested interest to protect, they were not entitled to notice of the condition.\n369\n\n\x0cMore recently, the appellate court upheld the validity of a testamentary provision regarding the\nmarriage of the intended legatee. In In re Estate of Gehrt, 134 Ill.App.3d 308, 89 Ill. Dec. 265, 480\nN.E.2d 151 (1985), the testator, Forrest Gehrt, originally left a portion of his estate to six named\nindividuals who were the children of Edna Bocock, apparently his deceased sister. Upon the death\nof one of these individuals, Harold Bocock, he executed a codicil leaving the portion originally\nintended for Harold to his widow, Betty, provided that at the time of Forrest\xe2\x80\x99s death, she remained\nunmarried. If, at the time of Forrest\xe2\x80\x99s death, it was determined that Betty had remarried, the share\nwas to go to Harold\xe2\x80\x99s five siblings. Estate of Gehrt, 134 Ill.App.3d at 309, 89 Ill. Dec. 265, 480 N.E.2d\n151.\nBetty remarried and, upon Forrest\xe2\x80\x99s death, sought Harold\xe2\x80\x99s share of the estate. The parties agreed\nthat the condition operated as a condition precedent. Betty argued that it constituted an invalid\nrestraint on marriage and asked that it be declared void as against public policy. The executor argued\nthat the condition did not operate as a restraint because the interest \xe2\x80\x9ceither vests or not at the date\nof the death of the testator depending on [Betty\xe2\x80\x99s] marital status at the time, not at some later time.\xe2\x80\x9d\nEstate of Gehrt, 134 Ill.App.3d at 310, 89 Ill. Dec. 265, 480 N.E.2d 151.\nThe appellate court invoked a rule of reasonableness, quoting a case from the state of Louisiana in\nsupport of such a rule:\n\xe2\x80\x9c \xe2\x80\x98[C]onceding, without deciding, that a legacy conditioned upon the legatee remaining unmarried\nis against the public policy of this State, it is apt to observe here that the provision under\nconsideration is not one forbidding the donee to marry during her lifetime or even for a fixed\nperiod of time, nor one that directs the legacy shall lapse in case the legatee should marry in the\nfuture, but rather one that is conditioned upon her status at the time of the testator\xe2\x80\x99s death.\nCertainly, such a provision is not against good morals, and we know of no law prohibiting the\nsame.\xe2\x80\x99 \xe2\x80\x9d Estate of Gehrt, 134 Ill.App.3d at 311, 89 Ill. Dec. 265, 480 N.E.2d 151, quoting Succession of\nRuxton, 226 La. 1088, 1091, 78 So.2d 183, 184 (1955).\nApplying this principle to the Gehrt estate, the appellate court noted the well-established principle\nthat a will speaks as of the date of death of the testator. Estate of Gehrt, 134 Ill.App.3d at 311, 89 Ill.\nDec. 265, 480 N.E.2d 151. Thus, the court observed:\n\xe2\x80\x9c[T]he testator, Forrest L. Gehrt, could have, for any reason, changed his codicil at any time prior\nto his death. He could have, at the time of plaintiff\xe2\x80\x99s remarriage, immediately executed another\ncodicil cancelling the gift to the plaintiff, and could have given that portion of property to others.\nHe can validly accomplish the same result by using the language that he did in the codicil in this\ncase.\xe2\x80\x9d Estate of Gehrt, 134 Ill.App.3d at 311, 89 Ill. Dec. 265, 480 N.E.2d 151.\nThe appellate court then quoted this court\xe2\x80\x99s opinion in Ransdell:\n\xe2\x80\x9cWhile it is of the first importance to society that contract and testamentary gifts which are\ncalculated to prevent lawful marriages or to bring about the separation or divorcement of\nhusbands and wives should not be upheld, it is no less important that persons of sound mind and\nmemory, free from restraint and undue influence, should be allowed to dispose of their property\nby will, with such limitations and conditions as they believe for the best interest of their donees.\xe2\x80\x9d\nRansdell, 172 Ill. at 446, 50 N.E. 111.\n370\n\n\x0cWe conclude, reading Ransdell, Shackelford, Gerbing, and Gehrt together, that no interest vested in the\nFeinbergs\xe2\x80\x99 grandchildren at the time of Max\xe2\x80\x99s death because the terms of his testamentary trust were\nsubject to change until Erla\xe2\x80\x99s death. Because they had no vested interest that could be divested by\ntheir noncompliance with the condition precedent, they were not entitled to notice of the existence\nof the beneficiary restriction clause. Further, because they were not the Feinbergs\xe2\x80\x99 heirs at law, the\ngrandchildren had, at most, a mere expectancy that failed to materialize for four of them when, at\nthe time of Erla\xe2\x80\x99s death, they did not meet the condition established by Max.\nApplicability of Restatement (Third) of Trusts\nIn reaching its decision, the appellate court also relied on section 29 of the Restatement (Third) of\nTrusts, and the explanatory notes and comments thereto. 383 Ill.App.3d at 997, 322 Ill. Dec. 534,\n891 N.E.2d 549.\nSince the Restatement (Second) of Trusts was adopted in 1959, this court has, on several occasions,\ncited various sections with approval. See, e.g., Eychaner v. Gross, 202 Ill.2d 228, 25, 269 Ill. Dec. 80,\n779 N.E.2d 1115 (2002)(requirements for creation of a trust). We have not yet had reason to\nconsider whether any section of the Restatement (Third) of Trusts, which was adopted in 2003, is an\naccurate expression of Illinois law and we need not do so in this case.\nThe validity of a trust provision is not at issue, as the distribution provision of Max\xe2\x80\x99s trust was\nrevoked when Erla exercised her power of appointment. Her distribution scheme was in the nature\nof a testamentary provision, which operated at the time of her death to determine who would be\nentitled to a $250,000 distribution.\nThe appellate court mistakenly compared the present case to an illustration accompanying Comment\nj to section 29 of the Restatement (Third) of Trusts. 383 Ill.App.3d at 997, 322 Ill. Dec. 534, 891\nN.E.2d 549. The illustration concerns a trust created by an aunt to benefit her nephew, who was to\nreceive discretionary payments until age 18, and all income and discretionary payments until age 30,\nat which time he would receive an outright distribution of all trust property. However, all of his\nrights under the trust would end if, before the trust terminated on his thirtieth birthday, he married\n\xe2\x80\x9ca person who is not of R Religion.\xe2\x80\x9d If he violated this condition, the remainder of the trust would\nbe given to a college. The drafters of the Restatement called this an \xe2\x80\x9cinvalid restraint on marriage,\xe2\x80\x9d\nand stated that the invalid condition and the gift over to the college should not be given effect.\nRestatement (Third) of Trusts \xc2\xa7 29, Explanatory Notes, Comment j, Illustration 3, at 62\xe2\x80\x9364 (2003).\nThis illustration is similar to Max\xe2\x80\x99s original trust provision. Under his plan, the grandchildren who\nwere not \xe2\x80\x9cdeemed deceased\xe2\x80\x9d at the time of Erla\xe2\x80\x99s death would receive distributions from the trust\nfor life, subject to termination if they should violate the marriage restriction. Erla\xe2\x80\x99s scheme,\nhowever, does not operate prospectively to encourage the grandchildren to make certain choices\nregarding marriage. It operated on the date of her death to determine which, if any, of the\ngrandchildren qualified for distribution on that date. The condition was either met or it was not met.\nThere was nothing any of the grandchildren could have done at that time to make themselves\neligible or ineligible for the distribution.\nAs this court noted in Ransdell, a condition precedent, even if a \xe2\x80\x9ccomplete restraint\xe2\x80\x9d on marriage,\n\xe2\x80\x9cwill, if broken, be operative and prevent the devise from taking effect.\xe2\x80\x9d However, \xe2\x80\x9c[w]hen the\ncondition is subsequent and void it is entirely inoperative, and the donee retains the property\n371\n\n\x0cunaffected by its breach.\xe2\x80\x9d Ransdell, 172 Ill. at 447, 50 N.E. 111, quoting 2 Pomeroy, Equity\nJurisprudence \xc2\xa7 933B (1881).\nMax\xe2\x80\x99s will and trust created no vested interests in the children or grandchildren because Erla\nretained a power of appointment until her death. No vested interests were created in 1997 by Erla\xe2\x80\x99s\nexercise of her power of appointment. Her actions created a mere expectancy, contingent on her\ndying without further amending the distribution scheme. Because no interest vested in any of the\ngrandchildren until Erla\xe2\x80\x99s death, her appointment created a condition precedent. As we noted in\nRansdell, under these circumstances, even a complete restraint on marriage (i.e., distribution only to\nunmarried grandchildren) would be operative.\nThus, this is not a case in which a donee, like the nephew in the illustration, will retain benefits\nunder a trust only so long as he continues to comply with the wishes of a deceased donor. As such,\nthere is no \xe2\x80\x9cdead hand\xe2\x80\x9d control or attempt to control the future conduct of the potential\nbeneficiaries. Whatever the effect of Max\xe2\x80\x99s original trust provision might have been, Erla did not\nimpose a condition intended to control future decisions of their grandchildren regarding marriage or\nthe practice of Judaism; rather, she made a bequest to reward, at the time of her death, those\ngrandchildren whose lives most closely embraced the values she and Max cherished.\nThe trial court and the appellate court erred by finding a violation of public policy in this case. While\nthe beneficiary restriction clause, when given effect via Erla\xe2\x80\x99s distribution provision, has resulted in\nfamily strife, it is not \xe2\x80\x9cso capable of producing harm that its enforcement would be contrary to the\npublic interest.\xe2\x80\x9d Kleimwort Benson, 181 Ill.2d at 226, 229 Ill. Dec. 496, 492 N.E.2d 269.\nNotes, Problems, and Questions\n1. How far should we go to respect the wishes of the dead over the wishes of the living? What are\nthe relevant factors to consider?\n2. The Courts in Maddox and Shapira relied on the reasonableness test to evaluate the validity of the\nconditions in the respective cases. What facts justify the different outcome of the cases?\n3. In light of the availability of Internet dating sites like Match.com and the current modes of\ntransportation, would the outcome of the Maddox be different if the case was before the court\ntoday?\n4. If there were only 700 Jewish women between the ages of 18 and 25, would it be reasonable to\nexpect Daniel to find a Jewish wife? Would you say that the condition was satisfied if Daniel\xe2\x80\x99s\nintended wife and both her parents converted to Judaism?\n5. If Daniel Shapira married his male partner, who was the product of two Jewish parents, would he\nhave a right to inherit from his father\xe2\x80\x99s estate?\n6. Suppose Daniel Shapira was only attracted to non-Jewish women. Is it reasonable to require him\nto fulfill the condition or lose his inheritance?\n\n372\n\n\x0c7. Suppose Dr. Shapira\xe2\x80\x99s will conditioned his gift to Daniel on his marrying a non-African American\nwoman. How would that condition fare in light of the reasoning in Shapira?\n8. In Feinberg, what did the court determine the testator\xe2\x80\x99s motivation to be with regards to the\ninclusion of the beneficiary restriction clause in his will? Should motive matter?\n9. In Feinberg, what were the competing public policies that the court discussed? Which one should\nbe given the greater weight?\n10. In Feinberg, what did the court state was the appropriate test to decide whether or not the\nbeneficiary restriction clause violated public policy? Why did the court conclude that no such\nviolation had occurred?\n11. Do any of the following restrictions violate public policy? Why? Why not?\n(a) Emma\xe2\x80\x99s daughter, Carrie, is involved in an abusive relationship. Instead of leaving George,\nthe abuser, Carrie gets engaged to him. Emma revises her will to include the following\nclause: \xe2\x80\x9cEmma will not inherit any portion of the trust I created on her behalf unless she\nends her relationship with George. Emma must end the relationship within 6 months of my\ndeath. If at the time of my death, Emma has married George, she will not receive any\nportion of my estate.\xe2\x80\x9d\n(b) Carson\xe2\x80\x99s only son, Gary, has a gambling problem. He has lost thousands of dollars and been\nbeaten up by loan sharks when he could not pay his gambling debts. Carson includes the\nfollowing clause in his will: \xe2\x80\x9cMy son Gary will not receive any portion of my estate unless he\nenters and completes rehab for his gambling addiction prior to my death or within one\nmonth of my death. In order to inherit, Gary must not enter a casino for at least 6 months\nafter he finishes rehab.\xe2\x80\x9d\n(c) Fred is a devout Catholic who does not believe in divorce for any reason. Fred\xe2\x80\x99s daughter,\nJill found out that her husband, Bryan, has been having an affair. Thus, Jill files for divorce.\nA few months later, Fred revises his will to include the following clause: \xe2\x80\x9cJill will not inherit\nany portion of my estate unless she dismisses her divorce complaint against Bryan and agrees\nto marriage counseling. If at the time of my death, Jill has divorced Bryan, she will not be\nentitled to inherit any part of my estate.\xe2\x80\x9d\nClass Discussion Tool\nWilma and John started dating in college. On their third date, John shoved Wilma\xe2\x80\x99s head into the\ntoilet and knocked out two of her teeth. Wilma\xe2\x80\x99s mother, Thelma, tried for years to get Wilma to\nend the abusive relationship. Wilma loves John and hopes that things will get better. Wilma is\nThelma\xe2\x80\x99s only child. Thelma died leaving an estate worth several million dollars. In her will, Thelma\nleft her entire estate to John on the condition that he end his relationship with Wilma. John is happy\nto choose the money over Wilma, but Wilma is desperate to hold on to the relationship. Wilma was\nable to talk John into challenging the condition placed on his inheritance. What is the possible\noutcome of the case?\n\n373\n\n\x0cChapter Eight: Disinheritance\n8.1\n\nIntroduction\n\nThe purpose of this chapter is to explore ways in which a person, including a child, can be\ndisinherited. Should persons be allowed to disinherit their children? Should the government be\nforced to provide financial support for the dependent minor or disabled child of a millionaire? The\nlegislators in the majority of states in America have answered these questions in the affirmative by\npermitting a testator to completely disinherit his or her child. Louisiana is the only states that\nprotects a minor or disabled child from being disinherited.\n8.2\n\nExceptions\n\n8.2.1\n\nForced Heirs\n\nThe state of Louisiana makes special exceptions for children under the age of twenty-three\nand permanently disabled children. Those classes of children are designated as forced heirs because\nthe decedent is forced to name them as heirs in his or her will and the probate court is forced to\nconsider them as heirs under the intestacy system.\n\nLSA. C.C. Art. 1493. Forced heirs\nForced heirs are descendants of the first degree who, at the time of the death of the\ndecedent, are twenty-three years of age or younger or descendants of the first degree of any\nage who, because of mental incapacity or physical infirmity, are permanently incapable of\ntaking care of their persons or administering their estates at the time of the death of the\ndecedent.\n8.3\n\nNegative Disinheritance\n\nParents have the right to disinherit their children. Parents may accomplish this by expressly\nstating in writing that they intend to disinherit their children and leave their property to charity or\nother persons.81 Probate courts will usually comply with the parents\xe2\x80\x99 request that their children not\nreceive any part of their estate. Under the common law negative disinheritance rule, in order to\ndisinherit a child the parent has to do more than just state that the child is intentionally disinherited.\nIn some cases, a disinherited child may inherit from the estate if all or a part of the estate is\ndistributed under the intestacy system. For example, all of the estate would be disposed of in\naccordance with the intestate succession laws if the will was invalidated for any reason, including\nundue influence, insane delusion and/or duress. In addition, a partial intestacy may result if the\ntestator failed to devise any part of his or her estate by will. In any of those cases, being disinherited\nwould not prevent a child from taking an intestate share. See the following example and case.\n\nBill Gates, Warren Buffet, and other billionaires, have indicated their plans to leave most of their money to charity.\nThey plan to leave their children nominal amounts or, in some cases, nothing in their wills.\n81\n\n374\n\n\x0c8.3.1\n\nExample\n\nRoss had three children, Olivia, Dennis and Susie. Ross disapproved of the man Susie\nmarried, so he decided to disinherit her. In his will, Ross stated, \xe2\x80\x9cMy house, my money and all of my\npersonal property is to be divided between Olivia and Dennis. Susie is not to inherit any of my\nproperty.\xe2\x80\x9d Ross did not include anything in his will with regards to the distribution of his 500 acre\nfarm. Under the negative disinheritance rule, although Susie was specifically disinherited by Ross\xe2\x80\x99\nwill, Susie may be entitled to a share of the farm because it was not devised to other persons. She\nwas entitled to receive an interest in the farm and any other property not disposed of by the will.\nSusie\xe2\x80\x99s share of the estate depended upon the intestacy system.\nMost jurisdictions no longer apply the negative disinheritance rule. The rule has been\nchanged by application of UPC \xc2\xa7 2-101(b)(1990). That section permits the testator to execute a will\nthat disinherits a child. The disinherited child is treated as if he or she disclaimed his or her intestate\nshare. As a result, the child is treated as if he or she had died before the testating parent. Some states\nhave abolished the negative inheritance rule by statute.\n8.3.2\n\nUPC \xc2\xa7 2-101 Intestate Estate\n(b) A decedent by will may expressly exclude or limit the right of an individual or class to\nsucceed to property of the decedent passing by intestate succession. If that individual or a\nmember of that class survives the decedent, the share of the decedent\xe2\x80\x99s intestate estate to\nwhich that individual or class would have succeeded passes as if that individual or each\nmember of that class had disclaimed his [or her] intestate share.\n\nIn re Estate of Melton, 272 P.3d 668 (2012)\nPER CURIAM:\nThis is a dispute between the State and a testator\xe2\x80\x99s daughter and half-sisters over his $3 million\nestate. At issue is the proper distribution of the estate of the testator, who, by way of a handwritten\nwill, attempted to disinherit all of his heirs but was unsuccessful in otherwise affirmatively devising\nhis estate. Under the common law, a disinheritance clause was unenforceable in these circumstances.\nIn the proceedings below, after determining that the testator\xe2\x80\x99s handwritten will was a valid\ntestamentary instrument that revoked his earlier will, the district court applied the prevailing\ncommon law rule, and thereby deemed the testator\xe2\x80\x99s disinheritance clause unenforceable. The court\ntherefore distributed the testator\xe2\x80\x99s entire estate to his disinherited daughter, pursuant to the law of\nintestate succession, and rejected the claim that because he disinherited all of his heirs, his estate\nmust escheat to the State to be used for educational purposes.\nCrucially, however, the Nevada Legislature has enacted a statute providing, in pertinent part, that a\nwill includes \xe2\x80\x9ca testamentary instrument that merely ... excludes or limits the right of an individual or\nclass to succeed to property of the decedent passing by intestate succession.\xe2\x80\x9d NRS 132.370. We\nconclude that by its plain and unambiguous language, NRS 132.370 abolishes the common law rules\nthat would otherwise render a testator\xe2\x80\x99s disinheritance clause unenforceable when the testator is\nunsuccessful at affirmatively devising his or her estate. Here, although the district court correctly\n375\n\n\x0cdetermined that the testator executed a valid handwritten will that revoked his earlier will, the court\nerred in deeming the disinheritance clause contained therein unenforceable.\nFinally, we consider whether an escheat is triggered when, as here, a testator disinherits all of his or\nher heirs. We conclude that an escheat is triggered in such a circumstance because, when all heirs\nhave been disinherited, the testator \xe2\x80\x9cleaves no surviving spouse or kindred\xe2\x80\x9d under NRS 134.120\npursuant to the plain and commonly understood meaning of that phrase. Accordingly, the district\ncourt erred in determining that the testator\xe2\x80\x99s estate does not escheat.\nBecause the disinheritance clause contained in the testator\xe2\x80\x99s will is enforceable, we reverse the\njudgment of the district court. As the testator disinherited all of his heirs, his estate must escheat.\nFACTS AND PROCEDURAL HISTORY\nThe 1975 will\nIn 1975, William Melton executed a formal will. The will was comprised of two forms, which\nMelton and three witnesses signed. Melton devised most of his estate to his parents and devised\nsmall portions to his brother and two of his cousins, Terry Melton and Jerry Melton. He also\nindicated that his daughter was to receive nothing. In 1979, Melton executed a handwritten codicil\non the back of one of the 1975 will forms that provided his friend, Alberta (Susie) Kelleher, should\nreceive a small portion of his estate (both will forms and the codicil are hereinafter referred to as\n\xe2\x80\x9cthe 1975 will\xe2\x80\x9d).\nThe 1995 letter\nIn 1995, Melton sent a handwritten letter to Kelleher. It reads:\n5\xe2\x80\x9315\xe2\x80\x9395\n5:00 AM\nDear Susie\nI am on the way home from Mom\xe2\x80\x99s funeral. Mom died from an auto accident so I thought I had\nbetter leave something in writing so that you Alberta Kelleher will receive my entire estate. I do not\nwant my brother Larry J. Melton or Vicki Palm or any of my other relatives to have one penny of\nmy estate. I plan on making a revocable trust at a later date. I think it is the 15 of [M]ay, no\ncalendar, I think it[\xe2\x80\x99]s 5:00 AM could be 7:AM in the City of Clinton Oklahoma\nLots of Love\nBill\n/s/ William E. Melton\nAKA Bill Melton\n[Social security number]\n\n376\n\n\x0cDiscovery of the 1975 will and the 1995 letter\nKelleher died in 2002, thus predeceasing Melton, who died in 2008. Shortly after Melton\xe2\x80\x99s death,\nrespondent John Cahill, Clark County Public Administrator, initiated a special administration of\nMelton\xe2\x80\x99s estate. During this administration, it was discovered that Melton had a daughter,\nrespondent Vicki Palm. The 1995 letter was also discovered. Initially, Palm and respondent\nElizabeth Stessel were appointed co-administrators of Melton\xe2\x80\x99s estate. But the district court\nsuspended their powers after determining that a disinterested party should administer the estate\nbecause a dispute over the proper distribution of the estate had arisen between Melton\xe2\x80\x99s half-sisters,\nappellants Linda Melton Orte and Sherry L. Melton Briner, appellant State of Nevada, respondents\nBryan Melton and Robert Melton and Palm. The district court therefore appointed Cahill to be the\nspecial administrator of Melton\xe2\x80\x99s estate. Thereafter, Cahill obtained access to Melton\xe2\x80\x99s safe deposit\nbox and discovered the 1975 will. The appraised net value of Melton\xe2\x80\x99s estate is approximately $3\nmillion.\nThe parties and their respective positions\nMelton\xe2\x80\x99s daughter\nPalm, Melton\xe2\x80\x99s only known child, initially argued that the 1995 letter is not a valid will, and that\nMelton\xe2\x80\x99s estate therefore should pass to her under the statutes governing intestate succession.\nFollowing the discovery of the 1975 will, however, she argued that the 1995 letter is a valid will and\nthat it revoked the 1975 will. Palm argued that although the 1995 letter is a valid will, it is ineffective\nbecause the only named devisee, Kelleher, predeceased Melton. Thus, she maintained that Melton\xe2\x80\x99s\nestate should pass through intestacy, under which she has priority pursuant to NRS 134.100.\nMelton\xe2\x80\x99s half-sisters\nIn the proceedings below, Melton\xe2\x80\x99s half-sisters contended that the 1995 letter is not a valid will, and\ntherefore, the 1975 will is still effective. In addition, they argued that if the 1995 letter is a valid will,\nit does not effectively revoke the 1975 will. They further argued that, even assuming that the 1995\nletter is a valid will that revoked the 1975 will, the revocation should be disregarded under the\ndoctrine of dependent relative revocation. Although Melton\xe2\x80\x99s half-sisters were not named as\ndevisees in the 1975 will, they asserted that under Nevada\xe2\x80\x99s antilapse statute, NRS 133.200. They\ncould take their parent\xe2\x80\x99s share of Melton\xe2\x80\x99s estate.\nThe State\nThe State asserted that the 1995 letter is a valid will that revoked the 1975 will. It argued that the\nLegislature\xe2\x80\x99s revisions to the Nevada Probate Code in 1999 provide for the enforcement of\ndisinheritance clauses, even when an estate passes by intestate succession. Thus, the State contended\nthat because Melton expressly disinherited all of his relatives in the 1995 letter, his estate must\nescheat.\nThe district court order\nAfter extensive briefing by the parties, the district court determined as follows: (1) the 1995 letter is\na valid will; (2) although the 1995 letter is a valid will, the disinheritance clause contained therein is\n377\n\n\x0cunenforceable; (3) the 1995 letter revoked the 1975 will; (4) the revocation of the 1975 will cannot\nbe disregarded under the doctrine of dependent relative revocation because NRS 133.130. Precludes\nthe doctrine in Nevada; and (5) even if the doctrine of dependent relative revocation applies in\nNevada, the doctrine is not applicable under the particular facts presented in this case. Accordingly,\nthe district court distributed Melton\xe2\x80\x99s estate to Palm pursuant to the intestate succession scheme.\nMelton\xe2\x80\x99s half-sisters and the State each appealed.\nDISCUSSION\nOn appeal, the parties largely maintain the positions that they asserted during the proceedings below.\nThus, in their appeal, Melton\xe2\x80\x99s half-sisters\xe2\x80\x99 primary contention is that the district court erred in\ndetermining that the 1975 will does not control the distribution of Melton\xe2\x80\x99s estate. In its appeal, the\nState\xe2\x80\x99s main contention is that the district court erred in deeming Melton\xe2\x80\x99s disinheritance clause\nunenforceable and in determining that his estate does not escheat.\nThe parties\xe2\x80\x99 positions compel us to resolve a sequence of issues. First, we must consider whether the\n1995 letter is a valid will, and if so, whether the disinheritance clause contained therein is\nenforceable. We conclude that the 1995 letter is a valid will and that the disinheritance clause\ncontained therein is enforceable under NRS 132.370. Next, we address whether the 1995 letter\nrevoked the 1975 will. Answering this question in the affirmative, we next consider whether to adopt\nthe doctrine of dependent relative revocation in Nevada and whether the doctrine can be applied to\nrender the revocation of the 1975 will ineffective. Because the doctrine of dependent relative\nrevocation promotes the sound policy of effectuating a testator\xe2\x80\x99s intent as closely as possible, we\ntake this opportunity to expressly adopt the doctrine. We conclude, however, that the doctrine\ncannot be applied under the particular facts of this case. Finally, we turn to the proper distribution\nof Melton\xe2\x80\x99s estate under the terms of the 1995 letter. We conclude that because Melton disinherited\nall of his heirs, his estate must escheat to the State pursuant to NRS 134.120. Accordingly, we\nreverse the judgment of the district court.\nStandard of review\nWhether a handwritten document is a valid will is a question of law reviewed de novo. Randall v.\nSalvation Army, 100 Nev. 466, 470, 686 P.2d 241, 243 (1984). Similarly, \xe2\x80\x9cquestions of statutory\nconstruction, including the meaning and scope of a statute, are questions of law, which [we] review [\n] de novo.\xe2\x80\x9d City of Reno v. Reno Gazette-Journal, 119 Nev. 55, 58, 63 P.3d 1147, 1148 (2003). Further,\nthe interpretation of a will is typically subject to our plenary review. Matter of Estate of Meredith, 105\nNev. 689, 691, 782 P.2d 1313, 1315 (1989). Lastly, whether a will has been revoked is also generally a\nquestion of law reviewed de novo. Estate of Anderson, 56 Cal.App.4th 235, 65 Cal. Rptr.2d 307, 311\n(1997).\n\xe2\x80\x9cWhen a statute is clear and unambiguous, we give effect to the plain and ordinary meaning of the\nwords and do not resort to the rules of construction.\xe2\x80\x9d Cromer v. Wilson, 126 Nev. ___, ___, 225 P.3d\n788, 790 (2010). As we have explained, we \xe2\x80\x9cmust give [a statute\xe2\x80\x99s] terms their plain meaning,\nconsidering its provisions as a whole so as to read them in a way that would not render words or\nphrases superfluous or make a provision nugatory.\xe2\x80\x9d Southern Nev. Homebuilders v. Clark County, 121\nNev. 446, 449, 117 P.3d 171, 173 (2005) (internal quotation omitted). We also have explained that a\nstatute\xe2\x80\x99s express definitions are controlling because \xe2\x80\x9c[t]o read [them] otherwise would lead to the\nabsurd result of rendering [such provisions] ... mere surplusage.\xe2\x80\x9d Boulder Oaks Cmty. Ass\xe2\x80\x99n v. B & J\n378\n\n\x0cAndrews, 125 Nev. 397, 406, 215 P.3d 27, 32-33 (2009).\nThe 1995 letter is a valid will\nMelton\xe2\x80\x99s half-sisters assert that the 1995 letter is simply a letter and nothing more. They emphasize\nthat the 1995 letter was discovered amongst miscellaneous papers in Melton\xe2\x80\x99s home, in contrast to\nthe 1975 will, which was found carefully placed in a safe. Thus, Melton\xe2\x80\x99s half-sisters argue that if\nMelton intended for the 1995 letter to be his will, he would have treated it as carefully as the 1975\nwill. Therefore, they contend that because the 1995 letter is not a valid will, the 1975 will still\ncontrols the distribution of Melton\xe2\x80\x99s estate.\nNevada law gives holographic wills the same effect as formally executed wills. NRS 133.090(3). \xe2\x80\x9cA\nholographic will is a will in which the signature, date and material provisions are written by the hand\nof the testator, whether or not it is witnessed or notarized.\xe2\x80\x9d NRS 133.090(1).\n[7]\n\nThe 1995 letter was written, signed, and dated by Melton. It contains the material provisions of a\nwill because it provided that Kelleher should receive Melton\xe2\x80\x99s estate and that his relatives should\nreceive nothing. Although Melton did not store the 1995 letter in the same manner that he stored\nthe 1975 will, its validity as a holographic will does not depend upon him doing so. Melton\xe2\x80\x99s\ntestamentary intent is evinced by his references to his mother\xe2\x80\x99s funeral, her untimely death, and his\nstatement that he \xe2\x80\x9chad better leave something in writing.\xe2\x80\x9d Accordingly, we conclude that the 1995\nletter is a valid holographic will.\nThe disinheritance clause contained in the 1995 letter is enforceable\nHaving concluded that the 1995 letter is a valid holographic will, we now consider the State\xe2\x80\x99s\ncontention that the district court erred in applying the prevailing common law rule regarding\ndisinheritance clauses and thereby deeming the disinheritance clause unenforceable. We begin our\nanalysis of this contention by providing a background on the common law disinheritance rules, the\ncriticisms thereof, and the modern treatment of disinheritance provisions. Next, we consider the\nparties\xe2\x80\x99 specific arguments regarding whether NRS 132.370 reverses the common law disinheritance\nrules in Nevada.\nBackground on disinheritance clauses\nUnder the common law, two general rules, known as the \xe2\x80\x9cEnglish rule\xe2\x80\x9d and the \xe2\x80\x9cAmerican rule,\xe2\x80\x9d\nhave been developed by courts considering whether to enforce disinheritance provisions as to\nproperty passing by intestate succession. Under the English rule, a disinheritance provision, or a socalled \xe2\x80\x9cnegative will\xe2\x80\x9d was enforceable only if \xe2\x80\x9cthe testator clearly expressed an intent to limit an heir\nto the devise (if any) contained in the will, and at least one other heir remained eligible to receive the\nintestate property.\xe2\x80\x9d Under the American rule, a testator could \xe2\x80\x9cprevent an heir from receiving his\nshare of any property that passes by intestacy only by affirmatively disposing of the entire estate\nthrough a will.\xe2\x80\x9d\nAs its name suggests, the majority of jurisdictions subscribe to the American rule. See, e.g., In re\nBarnes\xe2\x80\x99 Estate, 63 Cal.2d 580, 47 Cal.Rptr. 480, 407 P.2d 656, 659 (1965) (\xe2\x80\x9cIt is settled that a\ndisinheritance clause, no matter how broadly or strongly phrased, operates only to prevent a\nclaimant from taking under the will itself, or to obviate a claim of pretermission. Such a clause does\n379\n\n\x0cnot and cannot operate to prevent the heirs at law from taking under the statutory rules of\ninheritance when the decedent has died intestate as to any or all of his property.\xe2\x80\x9d); 4 William J. Bowe\nand Douglas H. Parker, Page on the Law of Wills \xc2\xa7 30.17, at 148 (rev. ed. 2004) (\xe2\x80\x9cIf testator does not\ndispose of the whole of his estate by his last will and testament, and such will contains negative\nwords of exclusion, the great majority of states hold that such negative words cannot prevent\nproperty from passing under the statutes of descent and distribution.\xe2\x80\x9d).\nCourts following the American rule have espoused three rationales for doing so: (1) enforcing\ndisinheritance provisions as to intestate property \xe2\x80\x9cwould create an undesirable \xe2\x80\x98mixing\xe2\x80\x99 of the\nprobate and intestacy systems by requiring courts to alter the distribution scheme provided in the\nintestacy statute\xe2\x80\x9d; (2) because disinheritance clauses do not expressly name devisees, \xe2\x80\x9ctheir\nenforcement would in effect require courts to draft new wills for testators\xe2\x80\x9d; and (3) disinheritance\nclauses are simply \xe2\x80\x9cinconsistent with the law of succession.\xe2\x80\x9d Heaton, supra, at 186.\nThe common law disinheritance rules, and the rationales underpinning them, have been the subjects\nof intense criticism. See, e.g., Frederic S. Schwartz, Models of the Will and Negative Disinheritance, 48\nMercer L.Rev. 1137, 1140, 1167 (1997) (stating that the justifications given for the common law\nrules are \xe2\x80\x9cobviously circular\xe2\x80\x9d and unsatisfactory, and urging courts \xe2\x80\x9cto give straightforward effect\xe2\x80\x9d\nto disinheritance provisions); Heaton, supra, at 184, 186 (noting that none of the rationales for the\nAmerican rule \xe2\x80\x9cwithstand [ ] analysis,\xe2\x80\x9d and concluding that it defeats testators\xe2\x80\x99 intentions).\nNot surprisingly, because the common law disinheritance rules distort testamentary intent and\nconflict with testamentary freedom, the modern trend is to reject the traditional rules. The Uniform\nProbate Code (UPC) reflects this trend, providing that \xe2\x80\x9c[a] decedent by will may expressly exclude\nor limit the right of an individual or class to succeed to property of the decedent passing by intestate\nsuccession.\xe2\x80\x9d Unif. Probate Code \xc2\xa7 2-101(b), 8/I U.L.A. 79 (1998). The drafters of the UPC stated\nthat in enacting this provision, they abrogated \xe2\x80\x9cthe usually accepted common-law rule, which defeats\na testator\xe2\x80\x99s intent for no sufficient reason,\xe2\x80\x9d Id. \xc2\xa7 2-101 cmt. The Restatement (Third) of Property\nalso rejects the common law disinheritance rules, providing that \xe2\x80\x9c[a] decedent\xe2\x80\x99s will may expressly\nexclude or limit the right of an individual or class to succeed to property of the decedent passing by\nintestate succession.\xe2\x80\x9d Restatement (Third) of Prop.: Wills and Other Donative Transfers \xc2\xa7 2.7\n(1999). As with the UPC, the Restatement explains that this provision \xe2\x80\x9creverses the common-law\nrule, which defeats a testator\xe2\x80\x99s intent for no sufficient reason.\xe2\x80\x9d Id. \xc2\xa7 2.7 cmt. a. With the foregoing in\nmind, we turn to whether the Legislature intended for NRS 132.370 to abolish the common law\ndisinheritance rules.\nNRS 132.370 abolishes the common law disinheritance rules\nThe State asserts that by revising the Nevada Probate Code in 1999 to provide that a \xe2\x80\x9cwill\xe2\x80\x9d includes\na \xe2\x80\x9ctestamentary instrument that merely .... excludes or limits the right of an individual or class to\nsucceed to property of the decedent passing by intestate succession,\xe2\x80\x9d the Legislature has rejected\nboth the English and American rules. Thus, the State argues that disinheritance provisions are now\nenforceable as to property passing by intestate succession. The State acknowledges that Nevada has\nnot adopted the UPC, but it points out the similarity in the language of NRS 132.370 and UPC\nsection 2-101.\nPalm contends that the \xe2\x80\x9cdefinition sections of Nevada\xe2\x80\x99s Probate Code should not be given\nsubstantive effect\xe2\x80\x9d7 and claims that giving effect to disinheritance provisions would make estate\n380\n\n\x0cplanning unpredictable. In essence, she believes that the language that the Legislature used in NRS\n132.370 was imprecise and unwise. Thus, Palm asserts that we should apply the common law\ndisinheritance rules, which would render Melton\xe2\x80\x99s disinheritance clause unenforceable. Palm argues\nthat because Melton\xe2\x80\x99s disinheritance clause is unenforceable, the district court correctly determined\nthat she should receive Melton\xe2\x80\x99s estate, as she has priority under the intestate succession scheme.\nNRS 132.370defines \xe2\x80\x9cwill\xe2\x80\x9d as follows:\n\xe2\x80\x9cWill\xe2\x80\x9d means a formal document that provides for the distribution of the\nproperty of a decedent upon the death of the decedent. The term includes a\ncodicil and a testamentary instrument that merely appoints an executor, revokes or\nrevises another will, nominates a guardian, or expressly excludes or limits the right of an\nindividual or class to succeed to property of the decedent passing by intestate succession.\n(Emphases added.)\nThe interpretation of NRS 132.370 is a matter of first impression for this court. NRS 132.370\ndefines a \xe2\x80\x9cwill\xe2\x80\x9d broadly. In stark contrast to the common law disinheritance rules, NRS\n132.370imposes no requirement that an instrument affirmatively devise property in order to be\nenforceable. Rather, a will includes an instrument that \xe2\x80\x9cmerely\xe2\x80\x9d limits an individual or class from\ninheriting. The plain language of NRS 132.370 thus demonstrates that the Legislature envisioned a\nprobate system in which disinheritance provisions can be enforced as to intestate property. Though\nPalm considers NRS 132.370 unwise, under well-established canons of statutory interpretation, we\nmust not render it nugatory or a mere surplusage. See Boulder Oaks Cmty. Ass\xe2\x80\x99n v. B & J Andrews, 125\nNev. 397, 406, 215 P.2d 27, 32-33 (2009); Southern Nev. Homebuilders v. Clark County, 121 Nev. 446,\n449, 117 P.3d 171, 173 (2005).\nThe significance of NRS 132.370 cannot be overstated. While the Legislature\xe2\x80\x99s amendments to the\nprobate code in 1999 are not a wholesale adoption of the UPC, the language of NRS 132.370\nmirrors that of UPC section 2-101, which, as previously noted, was designed to abrogate the\ncommon law disinheritance rules. Giving effect to disinheritance provisions, however, is not so\nradical that it creates the estate planning upheaval that Palm claims it would. As UPC states such as\nArizona, Colorado, and North Dakota demonstrate, such provisions can be seamlessly incorporated\ninto the existing probate system. See, e.g., Matter of Estate of Krokowsky, 182 Ariz. 277, 896 P.2d 247,\n249 n. 2 (1995); In re Estate of Walter, 97 P.3d 188, 192 (Colo.Ct.App.2003); In re Estate of Samuelson,\n757 N.W. 2d 44, 47 (N.D. 2008).\nIn addition, we find the approach taken by New York courts instructive. New York, like Nevada,\nhas not adopted the UPC, but it has enacted a statute defining a \xe2\x80\x9cwill,\xe2\x80\x9d in relevant part, as \xe2\x80\x9can oral\ndeclaration or written instrument ... whereby a person disposes of property or directs how it shall\nnot be disposed of....\xe2\x80\x9d N.Y. Est. Powers & Trusts Law \xc2\xa7 1-2.19(a) (McKinney 1998). New York\ncourts have interpreted this definition to be a reversal of the common law disinheritance rules:\nPrior to September 1, 1967, the effective date of [the statute defining \xe2\x80\x9cwill\xe2\x80\x9d], the cases held that:\n\xe2\x80\x9cThe legal rights of the heir or distributee to the property of deceased persons, cannot be defeated\nexcept by a valid devise or bequest of such property to other persons\xe2\x80\x9d....\nHowever, in this Court\xe2\x80\x99s opinion the new statute is unmistakable in providing that a testator now\n381\n\n\x0cmay disinherit an heir from all his property, both testamentary and intestate assets.\nIn re Will of Beu, 70 Misc.2d 396, 333 N.Y.S.2d 858, 859 (Sur.Ct.1972)(citation omitted) (quoting In re\nHefner\xe2\x80\x99s Will 122 N.Y.S.2d 252, 254 (Sur.Ct. 1953)), affd, 44 A.D.2d 774, 354 N.Y.S.2d 600 (1974); see\nalso Matter of Will of Stoffel, 104 Misc.2d 154, 427 N.Y.S.2d 720, 721 (Surr.Ct. 1980) (\xe2\x80\x9cThe definition\nof \xe2\x80\x98will\xe2\x80\x99 changed the rule previously existing which made directions to disinherit someone ineffective\nunless all of the Decedent\xe2\x80\x99s assets were effectively disposed to others.\xe2\x80\x9d), aff\xe2\x80\x99d, 79 A.D.2d 658, 437\nN.Y.S.2d 922 (1980). In short, we conclude that in enacting NRS 132.370, the Nevada Legislature,\nlike the New York Legislature, abolished the common law disinheritance rules.\nHere, Melton drafted a will in which he expressly excluded all of his heirs: \xe2\x80\x9cI do not want my brother\nLarry J. Melton or Vicki Palm or any of my other relatives to have one penny of my estate.\xe2\x80\x9d Melton\xe2\x80\x99s\nintent to disinherit his heirs could not have been clearer. See Matter of Estate of Meredith, 105 Nev. 689,\n691, 782 P.2d 1313, 1315 (1989) (\xe2\x80\x9c[T]he surest way ... to carry out a testator\xe2\x80\x99s intent is to construe a\nwill according to the plain meaning of the terms used in the will.\xe2\x80\x9d). Although Palm speculates that\nMelton only intended to exclude her if his estate passed through his will, he placed no qualifications\non his disinheritance clause. Without such direction from Melton, it cannot be said that he meant to\ndisinherit Palm if his estate passed through his will but that he would have been content to have her\nreceive his estate if it passed through intestate succession. See Estate of Samuelson, 757 N.W.2d at 48\n(\xe2\x80\x9c[W]hen a testator expressly excludes an individual in his will, the individual is excluded from taking\nunder both testate and intestate succession, unless the testator expressly specifies a contrary\nintention.\xe2\x80\x9d). Pursuant to NRS 132.370, simply because Kelleher predeceased Melton, thereby\ncausing his devise to her to lapse, does not render the remainder of the will, including its\ndisinheritance clause, unenforceable. Accordingly, we conclude that the disinheritance clause\ncontained in the 1995 letter is enforceable.\nThe proper distribution of Melton\xe2\x80\x99s estate under the 1995 letter is an escheat\nWe now turn to the proper distribution of Melton\xe2\x80\x99s estate under the terms of the 1995 letter. The\nState argues that because Melton disinherited all of his heirs in the 1995 letter, an escheat is\ntriggered.\nPalm asserts that the requisites of an escheat have not been met because, under NRS 134.120, an\nintestate estate can escheat only when \xe2\x80\x9cthe decedent leaves no surviving spouse or kindred.\xe2\x80\x9d Thus,\nshe contends that because she survived Melton in the literal sense, his estate cannot escheat. Palm\nalso argues that the law abhors escheats, and therefore, as a matter of public policy, an escheat\nshould not be permitted.\nAlthough the 1995 letter contains a disinheritance clause, and is therefore an enforceable\ntestamentary instrument under NRS 132.370, Melton\xe2\x80\x99s estate nonetheless must descend through\nintestacy because he was unsuccessful at affirmatively distributing his estate. See NRS 132.195 (an \xe2\x80\x9c\n\xe2\x80\x98[i]ntestate estate\xe2\x80\x99 includes an estate where no will has been offered or admitted to probate as the last\nwill and testament and an estate where the will does not distribute the entire estate\xe2\x80\x9d). While this\ncauses a \xe2\x80\x9cmixing\xe2\x80\x9d of the testate and intestate systems that was discouraged under the common law,\nthe Legislature expressly contemplated this result. See NRS 132.370 (a \xe2\x80\x9c\xe2\x80\x98will\xe2\x80\x99 \xe2\x80\x9d includes an\ninstrument that excludes an heir from receiving property \xe2\x80\x9cpassing by intestate succession\xe2\x80\x9d).\nNext, NRS 134.120, the provision that sets forth the requisites for the escheat of an intestate estate,\n382\n\n\x0cprovides: \xe2\x80\x9cIf the decedent leaves no surviving spouse or kindred, the estate escheats to the State for\neducational purposes.\xe2\x80\x9d We reject Palm\xe2\x80\x99s cramped interpretation of this provision because it is\ncommonly understood that when a disinheritance clause is enforceable as to intestate property, a\ndisinherited heir is treated, as a matter of law, to have predeceased the testator. See In re Will of Beu,\n70 Misc.2d 396, 333 N.Y.S.2d 858, 861 (Sur.Ct. 1972) (a disinherited heir is \xe2\x80\x9cconsidered to have\npredeceased the testator\xe2\x80\x9d under the New York statute providing for the enforcement of\ndisinheritance clauses as to intestate property); Frederic S. Schwartz, Models of the Will and Negative\nDisinheritance, 48 Mercer L.Rev. 1137, 1145 (1997) (\xe2\x80\x9cA provision disinheriting [an heir] should result\nin an application of the intestacy statute as if [that heir] predeceased the testator.\xe2\x80\x9d); J. Andrew\nHeaton, Comment, The Intestate Claims of Heirs Excluded by Will: Should \xe2\x80\x9cNegative Wills\xe2\x80\x9d Be Enforced?, 52\nU. Chi. L. Rev. 177, 192 (1985) (when a disinheritance clause is enforced as to intestate property\n\xe2\x80\x9cthe excluded heir is treated as having predeceased the testator\xe2\x80\x9d).\nThus, because we presume that the Legislature was aware of the commonly understood effect of the\nlanguage of NRS 134.120 when it drafted the statute, this is how it must be construed. See Beazer\nHomes Nevada, Inc. v. Dist. Ct., 120 Nev. 575, 580-81, 97 P.3d 1132, 1135-36 (2004) (\xe2\x80\x9cWhen a\nlegislature adopts language that has a particular meaning or history, rules of statutory construction ...\nindicate that a court may presume that the legislature intended the language to have meaning\nconsistent with previous interpretations of the language.\xe2\x80\x9d). Accordingly, we conclude that when a\ntestator disinherits all heirs, he or she \xe2\x80\x9cleaves no surviving spouse or kindred\xe2\x80\x9d for the purposes of\nNRS 134.120 and, as a consequence, an escheat is triggered.\nThe law disfavors escheats. In re Estate of Cruz, 215 Cal. App.3d 1416, 264 Cal. Rptr. 492, 493 (1989).\nThe commonly cited reason for this principle is that \xe2\x80\x9csociety prefers to keep real property within the\nfamily as most broadly defined, or within the hands of those whom the deceased has designated.\xe2\x80\x9d\nUnited States v. 1978.73 Acres of Land, More or Less, 800 F.2d 434, 435 (4th Cir. 1986). But the law also\nstrives to effectuate the intentions of testators. Zirovic v. Kordic, 101 Nev. 740, 741, 709 P.2d 1022,\n1023 (1985). It is unmistakable that in enacting NRS 132.370, the Legislature weighed these\ncompeting considerations and determined that testamentary freedom has primacy over the policy\ndisfavoring escheats. Thus, when, as here, a testator disinherits all of his or her heirs, the law\xe2\x80\x99s\ndisfavor of escheats does not prevent an estate from passing to the State. Accordingly, we conclude\nthat Melton\xe2\x80\x99s estate must escheat to the State.\nCONCLUSION\nBecause the disinheritance clause contained in Melton\xe2\x80\x99s will is enforceable, we reverse the judgment\nof the district court. As Melton disinherited all of his heirs, his estate escheats.\n8.4\n\nExpressed Disinheritance by the Testator\n\nWhen parents place restrictions on their children\xe2\x80\x99s right to inherit, those restrictions must be\nreasonable or the court will not enforce them. Nonetheless, a parent can disinherit a child for no\nparticular reason. Courts typically do not analyze the motives of the testator. However, in some\ncases, even if the child is disinherited, he or she may still be allowed to inherit from his or her\nparent. Those cases usually involve children who are legally recognized as creditors or other persons\nwho have a right to receive property from the decedent that is independent of their relation to the\ntestator.\n383\n\n\x0cEstate of D.M.R., 735 N.E.2d 359 (Mass. 2000)\nMARSHALL, C.J.\nPursuant to G.L. c. 215, \xc2\xa7 13, and Mass. R. Dom. Rel. P. 64, a judge in the Probate and Family\nCourt reserved and reported four questions concerning the financial obligations of a deceased\nfather\xe2\x80\x99s estate to his minor child: \xe2\x80\x9c1. whether a testator, survived by a minor child to whom he owed\n. . . support pursuant to a court order, may disinherit that child pursuant to the [omitted child\nstatute,] G.L. c. 191, \xc2\xa7 20; \xe2\x80\x9c2. whether the child\xe2\x80\x99s claim for support is in the nature of a preferred\ncreditor\xe2\x80\x99s claim; \xe2\x80\x9c3. whether a posthumous support obligation includes assets of an inter vivos trust;\nand \xe2\x80\x9c4. whether an order to secure postmajority educational support may be made in the\ncircumstances of posthumous support.\xe2\x80\x9d\nWe discuss the background facts and applicable law before answering the questions.\nBackground\nThe father died on November 20, 1994, at the age of fifty-five. He was divorced at the time of his\ndeath. He was survived by two children, an adult daughter from his only marriage, and a minor child\n(child) born on September 10, 1990, to the mother, L.W.K. (mother), to whom he was not married.\nThe mother was forty-two years old at the time of the child\xe2\x80\x99s birth. Prior to the father\xe2\x80\x99s death, the\nmother brought a paternity action to establish him as her child\xe2\x80\x99s father. On June 11, 1992, after a\nhearing, a judge in the Probate and Family Court so determined, and ordered the father to pay child\nsupport of $100 a week to the mother, the order to remain in effect \xe2\x80\x9cuntil further order of the\nCourt.\xe2\x80\x9d The father paid the required child support until his death.\nOn June 3, 1994, the father executed a will that disinherited his minor child, leaving to her the\namount of one dollar. He further directed that she \xe2\x80\x9cshall not be considered an heir-at-law of mine\xe2\x80\x9d\nnor \xe2\x80\x9ca child of mine or issue of mine for any purpose under this will.\xe2\x80\x9d The will provided that, after\nthe payment of specific monetary bequests and disposition of certain tangible property, the\nremainder of the estate be devised and bequeathed to a trust (trust) that the father had previously\nestablished on February 3, 1977. On the same day the father also signed a final amendment to the\ntrust that restated all of the trust terms. The trust instrument authorized the trustees, on the father\xe2\x80\x99s\ndeath, to collect various life insurance policies and any devises and bequests made by the father to\nthe trust. The trust named the father\xe2\x80\x99s sister (sister) and his adult daughter (the only child from his\nquondam marriage) as the sole beneficiaries.\nAfter the father\xe2\x80\x99s death, the sister was appointed executrix of his estate. She filed a Federal estate tax\nreturn that listed the father\xe2\x80\x99s total gross estate as $800,398, and a taxable estate of $648,722. On the\ndeath of the father, the mother filed a claim for Social Security benefits on her child\xe2\x80\x99s behalf based\non the father\xe2\x80\x99s participation in the Social Security system. It was determined that the child, as a\nqualified minor, was entitled to receive at that time $849 a month in Social Security benefits. The\nchild is entitled to receive these benefits until she turns eighteen or until her nineteenth birthday if\nshe has not finished high school. The child is now ten years old. Her mother has the sole\nresponsibility for her care and upbringing. The child\xe2\x80\x99s only source of income is the Social Security\nbenefits, in addition to support from her mother. A guardian ad litem, appointed to represent the\n384\n\n\x0cchild\xe2\x80\x99s interests in the father\xe2\x80\x99s estate, filed a complaint for modification of the child support order\nentered in 1992, and a notice of claim against the estate seeking further support payments for the\nchild. Sometime later, a petition for authority to compromise was filed in the estate probate\nproceeding in which the mother and the sister (executrix of the father\xe2\x80\x99s estate) agreed to a settlement\nof all claims of the child in the amount of $10,000. A second guardian ad litem, appointed to\nrepresent the child\xe2\x80\x99s interests, filed an opposition to the compromise.\nAfter a hearing, the compromise was dismissed and an attorney was appointed to represent the child\nin the modification action. The judge allowed a joint motion filed by the mother and the executrix to\namend the complaint for modification to add the trustees as defendants. The parties submitted a\nstatement of agreed facts and made a joint request for rulings. The judge ruled preliminarily that (1)\nthe father could not disinherit his minor child to defeat his support obligations; (2) the assets of the\ninter vivos trust and the estate are subject to the child\xe2\x80\x99s support claim; (3) she had the authority to\nenter an order against the father\xe2\x80\x99s estate for future educational support of the child; and (4) the\nchild\xe2\x80\x99s receipt of Social Security benefits did not bar further claims for support. Because the judge\ndetermined that the case presented questions of first impression, and that answers to the questions\nmaterially affected the merits of the claim for modification, she reserved and reported four questions\nand stayed the proceedings pending an appellate ruling. We granted the defendants\xe2\x80\x99 application for\ndirect appellate review.\nQuestions One and Two.\nFor ease of discussion we address in tandem the first two questions. Testamentary freedom is not\nabsolute, and certain preexisting obligations have priority over all testamentary dispositions. See, e.g.,\nHarrison v. Stevens, 305 Mass. 532, 535, 26 N.E.2d 351 (1940) (testamentary dispositions subject to\nthe \xe2\x80\x9cclaims of creditors and to administration expenses\xe2\x80\x9d); G.L. c. 191, \xc2\xa7 15, 16 (spousal elective\nshare takes priority over testamentary dispositions). See also H.J. Alperin & L.D. Shubow, Summary\nof Basic Law \xc2\xa7 22.113, at 565 (3d ed.1996). A legally enforceable obligation to pay child support, like\nother financial obligations of the testator, takes precedence over testamentary dispositions and must\nbe satisfied prior to any distribution of assets under the will. (citations omitted). A parent charged\nwith an obligation to support his child cannot nullify that legal obligation by disinheriting his child\npursuant to G.L. c. 191, \xc2\xa7 20. Beyond satisfaction of his support obligation, however, a parent is free\nto exercise his testamentary discretion with respect to a minor child, as all others, and may disinherit\nher.\nIn order to answer questions one and two, therefore, we must resolve whether the order to the\nfather to support his minor child survived his death. Specifically we must decide whether a child\nsupport order, made pursuant to G.L. c. 209C, \xc2\xa79, during the father\xe2\x80\x99s life, creates an obligation on\nhis estate to continue support until his child reaches majority, or whether any obligations for her\nfuture support were extinguished by his death. The duty of a parent to support a minor child is\nstatutory. See, e.g., G.L. c. 208, \xc2\xa7 28; G.L. c. 209, \xc2\xa7 37; G.L. c. 209C, \xc2\xa7 9. The question, therefore, is\none of statutory interpretation. We conclude that the death of the father does not extinguish his duty\nto support his minor child. We do so for several reasons. First, contrary to the dissent, we are not\nlegislating but applying unequivocal policy mandates of the Legislature to the specific facts of this\ncase. For decades extending back into the Nineteenth Century, the Legislature has mandated and\nthis court has recognized that parents have an obligation to support their minor children. The\nLegislature has expressed that duty in unmistakable terms: \xe2\x80\x9cIt is the public policy of the\ncommonwealth that dependent children shall be maintained, as completely as possible, from the\n385\n\n\x0cresources of their parents thereby relieving or avoiding, at least in part, the burden borne by the\ncitizens of the commonwealth.\xe2\x80\x9d G.L. c. 199A, \xc2\xa71, as amended through St.1998, c. 463, \xc2\xa7 101\n(approved with emergency preamble, Jan. 14, 1999). The Legislature has also decreed that the\nstatutes concerning child support enforcement \xe2\x80\x9cshall be liberally construed to effectuate\xe2\x80\x9d that public\npolicy. Id.\nSecond, in this Commonwealth there have been recent and profound legislative changes that have\nincreased significantly the obligation of parents to support their children. Federal law has also\nincreased significantly the obligations of parents for child support. Thus, both State and Federal law\nare explicit in providing for the broadest possible support of minor children by their parents.\nMoreover, under the Child Support Enforcement Act an \xe2\x80\x9c[o]bligor\xe2\x80\x9d is defined as \xe2\x80\x9can individual, or\nthe estate of a decedent, who owes or may owe a duty of support, or who is liable under a child support\nobligation,\xe2\x80\x9d plainly suggesting that the Legislature intended liability for child support obligations to\nsurvive the death of a parent (emphasis supplied). G.L. c. 119A, \xc2\xa7 1A. That the child support order\nwas entered in a paternity proceeding other than a divorce proceeding is of no significance, for the\nLegislature has mandated that children born out of wedlock are entitled to the same rights and\nprotections of the law as all other children. (citations omitted).\nThird, the Legislature has imposed an explicit duty on parents who divorce and those who give birth\nto children out of wedlock to support their minor child until they attain their majority. General Laws\nc. 209C, \xc2\xa7 1, imposes child support responsibility on a parent from the child\xe2\x80\x99s birth to the age of\neighteen, and beyond that period if certain statutory and readily discernible circumstances exist. See\nDoe v. Roe, 23 Mass.App.Ct. 590, 594\xe2\x80\x93595, 504 N.E.2d 659 (1987). See also G.L. c. 209, \xc2\xa7 37\n(imposing support obligations on separated parents of minor children). Where its terms are\nunambiguous, a statute must be held to mean what it plainly expresses. (citations omitted). In this\ncase, the child support order is in force until the child is emancipated or \xe2\x80\x9cuntil further order of the\nCourt.\xe2\x80\x9d Neither of these contingencies has occurred. We are not free to add a further requirement,\nbeyond what the Legislature has declared, that the father is responsible for the support of his child\nborn out of wedlock \xe2\x80\x9cfrom [her] birth up to the age of eighteen,\xe2\x80\x9d G.L. c. 209C, \xc2\xa7 1, but only until\nhis death.\nOur ruling is also consistent with the declared public policy of this Commonwealth that dependent\nchildren shall be maintained \xe2\x80\x9cas completely as possible\xe2\x80\x9d from the resources of their parents. G.L. c.\n119A, \xc2\xa71. See G.L. c. 209C, \xc2\xa7 20. It would be inconsistent with that and other mandates of the\nLegislature to conclude that a father\xe2\x80\x99s court-ordered support obligation abated on his death,\ndepriving his young daughter of the resources necessary for her maintenance. In an intact family,\nminor children have security against the loss of support when one parent dies, even in the case of\ntestamentary disinheritance, because of the spousal elective share. G.L. c. 191, \xc2\xa7\xc2\xa7 15, 16. See also G.L.\nc. 190, \xc2\xa7 1 (spouse\xe2\x80\x99s right to share of property not disposed of by will); G.L. c. 193, \xc2\xa71 (surviving\nspouse listed first in schedule of persons entitled to appointment to administer intestate\xe2\x80\x99s estate);\nG.L. c. 229, \xc2\xa7 1 (right of surviving spouse to bring wrongful death action). Children of divorced\nparents and children born out of wedlock do not have the same protection. For this reason, we are\nunpersuaded by the defendants\xe2\x80\x99 argument that our holding would unfairly discriminate against\nchildren from intact families.\nFourth, a conclusion that child support obligations survive the death of a parent is consistent with\nprevailing contemporary legal authority. See, e.g., Knowles v. Thompson, 166 Vt. 414, 418, 697 A.2d 335\n(1997), citing Morris v. Henry, 193 Va. 631, 636, 70 S.E.2d 417 (1952) (\xe2\x80\x9ctext writers and a decided\n386\n\n\x0cmajority of cases hold that under modern conditions liability of the father is not necessarily\nterminated by his death, and that there is no sound reason, unless prohibited by statute, why his\nestate should not be charged with his obligation to support his minor children\xe2\x80\x9d). See also Edelman v.\nEdelman, 65 Wyo. 271, 291\xe2\x80\x93292, 199 P.2d 840 (1948), in which the Wyoming Supreme Court\nreached the same conclusion fifty years ago. The Uniform Marriage and Divorce Act \xc2\xa7 316(c), 9A\nU.L.A. 102 (Master ed.1998), reflects this prevailing view: \xe2\x80\x9cUnless otherwise agreed in writing or\nexpressly provided in the decree, provisions for the support of a child are terminated by\nemancipation of the child but not by the death of a parent obligated to support the child \xe2\x80\x9c (emphasis added).\nThe comment to that section explains: \xe2\x80\x9c[T]his section terminates the obligation of a parent to\nsupport a child, only upon the child\xe2\x80\x99s emancipation. The parent\xe2\x80\x99s death does not terminate the child\xe2\x80\x99s right\nto support, and the court may make an appropriate order establishing the obligation of the deceased\nparent\xe2\x80\x99s estate to the child\xe2\x80\x9d (emphasis added). Id. at 103.\nFinally, there is nothing in G.L. c. 191, \xc2\xa7 20, that prohibits such a construction. That statute \xe2\x80\x9cforbids\nnothing and compels nothing; it merely provides a framework within which private testamentary\ndecisions may be freely made.\xe2\x80\x9d Hanson v. Markham, 371 Mass. 262, 265, 356 N.E.2d 702 (1976). Our\nconclusion interpreting the legislative mandate that child support obligations do not abate at death\nwill not create any uncertainty for estate planning purposes. See Hornung v. Estate of Lagerquist, 155\nMont. 412, 419, 473 P.2d 541 (1970) (\xe2\x80\x9cthe enforcement of an obligation for future support presents\nno greater problems than any other unliquidated claim against an estate\xe2\x80\x9d). Unlike alimony, an order\nto provide for the support of a minor child terminates at a specific age. Accordingly, the total\namount of child support that a parent is obliged to pay may be readily determined\xe2\x80\x94in contrast to an\norder to provide alimony that in many circumstances terminates only when a spouse remarries (a\ndate uncertain in the future) or on the recipient\xe2\x80\x99s death (similarly uncertain). The protection of\nminor children, most especially those who may be stigmatized by their \xe2\x80\x9cillegitimate\xe2\x80\x9d status or who\nare not supported by divorced parents fully capable of doing so, has been a hallmark of legislative\naction and of the jurisprudence of this court. Consistent with the public policy so clearly articulated\nby the Legislature, the estate of the father in this case is charged with his court-imposed obligations\nto support his minor child.\nQuestion Three\nWe consider whether the father\xe2\x80\x99s support obligation can be satisfied from the assets of his inter\nvivos trust. We conclude that all the assets of the inter vivos trust established by the father, under\nwhich he was the sole beneficiary entitled to funds at his request, and which he solely retained the\npower to modify, alter or revoke, must be included in the estate and, as such, must be made available\nto satisfy his child support obligations. Such a ruling is consistent with our law in closely related\nareas.\nWe have held that, for the purpose of determining a surviving spouse\xe2\x80\x99s elective share, G.L. c. 191, \xc2\xa7\n15, assets in an inter vivos trust over which the decedent had a general power of appointment,\nexercisable by deed or by will, constitute the estate of the deceased spouse. See Sullivan v. Burkin, 390\nMass. 864, 867, 460 N.E.2d 572 (1984). The Appeals Court has similarly recognized that creditors\ncan reach the assets of an inter vivos trust to \xe2\x80\x9cthe maximum amount which the trustee . . . could pay\nto [the trustee] or apply for his benefit,\xe2\x80\x9d in order to satisfy the trustee\xe2\x80\x99s debts to them. State St. Bank\n& Trust Co. v. Reiser, 7 Mass.App.Ct. 633, 636, 389 N.E.2d 768 (1979). See Nile v. Nile, 432 Mass.\n390, 734 N.E.2d 1153 (2000). See also Restatement (Second) of Trusts \xc2\xa7 156(2) (1959); Restatement\n(Second) of Property \xc2\xa7 34.3(3) comments h, j (1990). Our earlier decisions reason that, as to\n387\n\n\x0cproperty that a settlor may appoint to himself or his executors, the property could have been\ndevoted to fulfilling debts or a widow\xe2\x80\x99s \xe2\x80\x9cspecial interests which should be recognized.\xe2\x80\x9d Sullivan v.\nBurkin, supra at 869, 460 N.E.2d 572. We see no reason not to adopt the same reasoning for\npurposes of payment of a child obligation debt, and the defendants offer none.\nQuestion Four (Discussion Omitted)\nSo ordered.\nNotes and Questions\n1. Parents are legally obligated to provide financial support for their children. Therefore,\nnoncustodial parents must pay child support. Nonetheless, that duty ends when the parent dies.\nSince children do not have a right to inherit from their parents, their parents can disinherit them.\nHowever, should parents be permitted to disinherit minor and disabled children? What are the pros\nand cons of the majority approach which allows parents to disinherit their children regardless of\ntheir youth or disability?\n2. What are the pros and cons of the Uniform Probate Code\xe2\x80\x99s approach to the omitted child\nproblem?\n3. Should parents be required to state reasons why they are disinheriting their children?\n4. In light of the Hodel decision discussed in Chapter Seven, is Louisiana\xe2\x80\x99s forced heir statute\nunconstitutional? Is there a difference between prohibiting a person\xe2\x80\x99s property from being disposed\nof under the intestacy system and requiring that a portion of the person\xe2\x80\x99s property be disposed of\nunder the intestacy system?\n5. In all jurisdictions the spouse is entitled to a share of the decedent\xe2\x80\x99s estate whether he or she\nleaves a will or dies intestate. Therefore, a person cannot disinherit his or her spouse. In light of that\nfact, should a person be able to disinherit his or her minor and disabled children?\n8.5\n\nDisinheritance by Operation of Law (Slayer Rule)\n\nOn August 26, 1989, Erik and Lyle Menendez gunned down their parents in the den of their\nmansion in Beverly Hills. Their father, Jose, was shot in the head from point-blank range and their\nmother, Kitty, was shot multiple times while she attempted to escape. The prosecutor claimed that\nthe young men committed the murders in order to inherit their parents\xe2\x80\x99 14 million dollar estate. The\nbrothers admitted to killing their parents, but maintained that their actions were the result of years\nof abuse. Eventually, the brothers were convicted of two counts each of first-degree murder and\nconspiracy to commit murder and sentenced to life in prison without parole. Because they were\nconvicted of killing their parents the brothers will not be able to inherit their parents\xe2\x80\x99 estate. The law\nprovides barriers to the child being able to inherit from his or her parent. In essence, the child is\ndisinherited by the operation of law. A main barrier to inheritance is a slayer statute. The typical\nslayer statute provides that a person, including a child, who intentionally kills another person cannot\ninherit from that person\xe2\x80\x99s estate. The purpose of the slayer statute is to prevent a person from\nbenefitting from his or her criminal act. The following is an example of a typical slayer statute.\n388\n\n\x0cWest\xe2\x80\x99s Alaska Statutes Annotated \xc2\xa7 13.12.803. Effect of homicide on intestate succession,\nwills, trusts, joint assets, life insurance, and beneficiary designations\n(a) An individual who feloniously kills the decedent forfeits all benefits under this chapter\nwith respect to the decedent\xe2\x80\x99s estate, including an intestate share, an elective share, an\nomitted spouse\xe2\x80\x99s or child\xe2\x80\x99s share, a homestead allowance, exempt property, and a family\nallowance. If the decedent died intestate, the decedent\xe2\x80\x99s intestate estate passes as if the\nkiller disclaimed the killer\xe2\x80\x99s intestate share.\n8.5.1\n\nApplication of the Slayer Statute\n\nA person is classified as a slayer if the person participates in the willful and unlawful killing\nof another person. The person\xe2\x80\x99s participation can consist of his or her actually killing the person or\nacting as an accessory before or after the fact. In most jurisdictions, the killing must be intentional or\nreckless. However, the Alaska legislature decided to make its slayer statute applicable to intentional\nand unintentional killings.\n8.5.1.1 Slayer Is Legally Disinherited\n\nIn the Matter of the Estate of Blodgett, 147 P.3d 702 (Alaska 2006)\nCARPENETI, Justice.\nIntroduction\nAfter being convicted of the criminally negligent homicide of his father, Robert Blodgett attempted\nto obtain the benefits devised to him under his father\xe2\x80\x99s will. Pursuant to Alaska\xe2\x80\x99s \xe2\x80\x9cslayer statute,\xe2\x80\x9d the\nsuperior court found that Blodgett was not entitled to inherit under the will as a result of his\nconviction, and that no manifest injustice resulted from this forfeiture. Blodgett attacks this decision\non statutory and constitutional grounds. Because we agree with the superior court that Blodgett\nfailed to prove that excluding him from the benefits of his father\xe2\x80\x99s will would result in manifest\ninjustice, we affirm that court\xe2\x80\x99s rejection of Blodgett\xe2\x80\x99s claims.\nFacts and Proceedings\nOn September 14, 2003 Robert Blodgett caused the death of his father, Richard Blodgett. Blodgett\nwas indicted for murder in the second degree and in January 2004 he entered a plea of no contest to\ncriminally negligent homicide. His conviction led to a three-and-one-half-year term of\nimprisonment. Blodgett was named in the final will of his father, which left \xe2\x80\x9call properties, bank\naccounts, stocks and insurance policies\xe2\x80\x9d to his children. In April 2004 Blodgett petitioned the\nsuperior court for a hearing to determine his rights to participate in the probate proceedings under\nthe Alaska probate code and AS 13.12.803. The other will beneficiaries consented to the hearing,\nbut, contending that the killing of Richard Blodgett was not \xe2\x80\x9cunintentional,\xe2\x80\x9d argued that AS\n13.12.803 precluded Blodgett from receiving any property under the will.\n\n389\n\n\x0cAfter additional briefing and a one-day evidentiary hearing, Superior Court Judge Ben Esch issued a\nMemorandum and Order denying Blodgett\xe2\x80\x99s petition and preventing him from obtaining any\nbenefits under the will. The court explained that under AS 13.12.803 forfeiture was mandatory\nunless the slayer proved by a preponderance of the evidence that this would result in manifest\ninjustice. The court concluded that Blodgett failed to make such a showing. The court considered,\nand rejected, possible factors it thought might colorably result in manifest injustice, including past\nfamily relationships and Blodgett\xe2\x80\x99s monetary needs. It found the \xe2\x80\x9cgreat deal of testimony about the\nnature of the past relationship\xe2\x80\x9d between Blodgett and his father \xe2\x80\x9cunhelpful\xe2\x80\x9d and irrelevant in\ndetermining \xe2\x80\x9cthe justice of denying or allowing recovery.\xe2\x80\x9d It also concluded that Blodgett retained\nsufficient income earning capacity and property holdings that he \xe2\x80\x9cwould not be beggared if he did\nnot receive these funds.\xe2\x80\x9d While the court made no specific findings as to Blodgett\xe2\x80\x99s culpability in his\nfather\xe2\x80\x99s death, Blodgett was sentenced to three and one-half years in prison after he pled guilty to\ncriminally negligent homicide. Blodgett appeals.\nDiscussion\nA. The Superior Court Did Not Abuse Its Discretion In Concluding That Forfeiture of the\nInheritance Would Not Result in Manifest Injustice.\nThe common law has long followed the policy that \xe2\x80\x9cno one should be allowed to profit from his\nown wrong.\xe2\x80\x9d Accordingly, many state courts exercised their equitable powers and followed this\nmaxim in construing probate statutes to prevent inheritance by an heir who murdered the decedent.\nOver the years most states codified this rule into what became known as the \xe2\x80\x9cslayer statutes.\xe2\x80\x9d The\noriginal Alaska slayer statute, passed in 1972, applied when the offender \xe2\x80\x9cfeloniously and intentionally\nkills\xe2\x80\x9d the decedent. The requirement that the homicide be intentional was taken from the common\nlaw rule and the Uniform Probate Code\xe2\x80\x99s articulation, both of which endorse the policy that a\nwrongdoer should not profit from his own wrong.\nIn 1988 the legislature passed an amendment removing the words \xe2\x80\x9cand intentionally\xe2\x80\x9d from the\nstatute. The amended statute on its face applied to homicides covered in AS 11.41.100 to140 that is,\nincluding criminally negligent homicide. The initial intent of the 1988 amendment was to prevent\nparents who caused the death of their child\xe2\x80\x94 even if unintentionally\xe2\x80\x94from recovering damages\nthrough the child\xe2\x80\x99s estate. This concern followed a case in which a parent failed to act to bring a\nchild to the hospital (an act of criminal negligence) resulting in the child\xe2\x80\x99s death. During debate on\nthe bill, one representative suggested that the rule apply to all homicides, not just to those\nperpetrated against children. The final draft of the amendment incorporated this suggestion by\nsimply removing the requirement of intent.\nShortly after this amendment, Alaska Governor Steve Cowper expressed concern that under unusual\ncircumstances, it might be unjust to prohibit a killer from taking the property of the victim, such as\nin the case of an unintentional felonious killing. Accordingly, another amendment was adopted in\n1989, creating the manifest injustice exception for unintentional homicides now found in subsection\n(k):\nIn the case of an unintentional felonious killing, a court may set aside the application of [the slayer\nstatute] if the court makes special findings of fact and conclusions of law that the application of the\nsubsection would result in a manifest injustice and that the subsection should not be applied.\n390\n\n\x0cThe statute also instructs that acquisitions of property not covered by the section \xe2\x80\x9cshall be treated in\naccordance with the principle that a killer may not profit from the killer\xe2\x80\x99s wrong.\xe2\x80\x9d This has remained\nthe law in Alaska. Thus, the legislature broadened the application of the slayer statute\xe2\x80\x94 by\nextending it to unintentional killings\xe2\x80\x94 and created an escape clause\xe2\x80\x94 by enacting the manifest\ninjustice exception.\nUnder the current Alaska criminal code, all unjustified forms of killing are deemed felonies. This\nincludes murder in the first degree, murder in the second degree, manslaughter, and criminally\nnegligent homicide. Thus, Alaska\xe2\x80\x99s slayer statute encompasses intentional as well as unintentional\nhomicides.\nWhen compared with the slayer statutes of other jurisdictions, Alaska\xe2\x80\x99s slayer statute emerges as\nunique. No other state has a manifest injustice provision for unintentional homicides. But in the\ngreat majority of other states, such a provision would be unnecessary\xe2\x80\x94in these states only\nintentional homicides are within the statutes\xe2\x80\x99 reach. Many of these statutes are modeled after the\nUniform Probate Code. Following the common-law slayer rule, the current Uniform Probate Code\nslayer statute applies to an \xe2\x80\x9cindividual who feloniously and intentionally kills the decedent.\xe2\x80\x9d The\ncomments clarify that \xe2\x80\x9cthis section . . . excludes the accidental manslaughter killing.\xe2\x80\x9d The\nRestatement (Third) of Property takes a similar position, and its formulation of the law \xe2\x80\x9cdoes not\napply if the killing was reckless, accidental, or negligent.\xe2\x80\x9d\nAs noted, the great majority of state slayer statutes require that the homicide be intentional. A\nminority of jurisdictions resemble Alaska in merely requiring the killing to be unlawful, rather than\nintentional. But even among this minority of jurisdictions, some would only cover homicides with\nculpable mental states as low as \xe2\x80\x9crecklessness,\xe2\x80\x9d and at least one has followed a judicial opinion\nreading an intent requirement into its slayer statute. Thus, when compared to the practices of most\nother jurisdictions, Alaska\xe2\x80\x99s slayer statute has a much broader reach that would preclude inheritance\nfor unintentional killers where other jurisdictions would not.\nThe legislature tempered the broad reach of AS 13.12.803 by investing trial courts with discretion to\nstay its application in those cases where manifest injustice would result. Should inheritance be denied\nto the unskilled teenager who drives his car in a criminally negligent manner and accidentally causes\nthe death of a sole remaining parent? The legislature clearly decided that in such a case there should\nbe discretion in the court to consider the specific facts of the homicide and, if denial of inheritance\nwould be manifestly unjust, to permit it. Nor does this power to avoid the rule conflict with the\npolicy underlying the slayer rule: that a killer should not profit from the killer\xe2\x80\x99s own wrong. Where\nthe killer\xe2\x80\x99s act was not intentional, and especially where the act was not even reckless, and where\nother circumstances mitigate the crime, the application of this principle may lead to unduly harsh\nresults. Indeed, the unintended killing of a loved one, as in the example above, would likely cause the\ninadvertent killer far greater personal ruin than monetary gain. In this case, Blodgett was convicted\nof criminally negligent homicide after a plea of no contest. This conviction conclusively established a\nfelonious killing under the slayer statute. Because a criminally negligent homicide is an unintentional\nhomicide, under subsection (k) Blodgett is entitled to avoid the effects of the slayer statute if he\nproves by a preponderance of the evidence that applying the statute to him will result in manifest\ninjustice.\nWe have not had occasion to define the phrase \xe2\x80\x9cmanifest injustice\xe2\x80\x9d as used in the slayer statute, or\nto set out the relevant factors that a trial judge should consider when ruling on this question.\n391\n\n\x0cSimilarly, because no other state slayer statute contains a provision similar to subsection (k), out-ofjurisdiction case law provides no ready assistance. However, the Alaska Court of Appeals has\ninterpreted this phrase in another, similar context. In criminal presumptive sentencing, the legislature\nenacted a \xe2\x80\x9csafety valve\xe2\x80\x9d provision that permits review of a sentence by a special three-judge panel\nupon a showing of manifest injustice. In Smith v. State, the court of appeals equated manifest\ninjustice with that which is \xe2\x80\x9cplainly unfair.\xe2\x80\x9d Later, in Beltz v. State the court of appeals held that a\npresumptive term cannot be manifestly unjust \xe2\x80\x9cin general\xe2\x80\x9d but only \xe2\x80\x9cas applied to a particular\ndefendant.\xe2\x80\x9d Before finding manifest injustice, the court held that the \xe2\x80\x9cjudge must articulate specific\ncircumstances that make the defendant significantly different from a typical offender within that\ncategory or that make the defendant\xe2\x80\x99s conduct significantly different from a typical offense.\xe2\x80\x9d We\nadopt Beltz\xe2\x80\x99s approach for the purpose of applying subsection (k) of Alaska\xe2\x80\x99s slayer statute.\nThus, the relevant comparison here is between Blodgett\xe2\x80\x99s conduct and that of a typical offender\nconvicted of negligent homicide. In the criminal proceedings, Blodgett was sentenced to three and\none-half years in prison. This sentence approaches the presumptive term for second felony offenses,\nsuggesting that the superior court did not believe Blodgett\xe2\x80\x99s acts fell at the lowest level of culpability\nfor a negligent homicide. Given the length of the sentence, we are reassured that the court below\nconsidered Blodgett\xe2\x80\x99s conduct in relation to other similarly situated defendants when it rejected\nBlodgett\xe2\x80\x99s claim of manifest injustice.\nBlodgett attempted to prove that enforcement of the slayer statute would result in manifest injustice\nby introducing evidence regarding (1) past family relationships, and (2) possible impecunity if denied\nthe benefits of inheritance. The court found that Blodgett failed to meet his burden of proving, by a\npreponderance of the evidence, extraordinary circumstances that would have made it manifestly\nunjust to exclude him from his father\xe2\x80\x99s will. We agree.\nThe court described the evidence regarding family relationships as \xe2\x80\x9cunhelpful.\xe2\x80\x9d While the court\xe2\x80\x99s\nstatement that the \xe2\x80\x9cnature and quality of the relationship between these parties during life seem\nunrelated to the fairness of allowing the killer to benefit after the decedent\xe2\x80\x99s death\xe2\x80\x9d may be a narrow\ninterpretation of the relevance of past relationships generally, we do not believe it was an abuse of\ndiscretion under the circumstances of this case. Witnesses testified that Blodgett and his father\nshared a relationship of \xe2\x80\x9ctough love,\xe2\x80\x9d a \xe2\x80\x9cgood relationship\xe2\x80\x9d marked with occasional \xe2\x80\x9csquabblings\xe2\x80\x9d\ntypical of father-son relationships. Such testimony neither proves nor refutes the fairness of\nforfeiting Blodgett\xe2\x80\x99s inheritance. The court did not abuse its discretion in deciding that Blodgett\nfailed to prove manifest injustice on this ground.\nThe court also examined Blodgett\xe2\x80\x99s argument that \xe2\x80\x9cit would be unjust to deny benefits under the\nwill to someone who is physically disabled, who faces unknowable future medical expenses, who has\na compromised earning capacity and has ongoing psychological needs.\xe2\x80\x9d The superior court noted\nthat, although Blodgett suffered some medical disabilities, Blodgett\xe2\x80\x99s own witness testified that he\n\xe2\x80\x9cis adept at the operation of heavy equipment and has skills as a mechanic.\xe2\x80\x9d The court found that\nthese skills could lead to employment with yearly compensation ranging between $40,000 and\n$50,000 per year. It also found that Blodgett owns other property and that future medical expenses\nwill likely be met through the Alaska Native Health Service. In light of this testimony, the court\nconcluded that Blodgett \xe2\x80\x9cwould not be beggared if he did not receive these funds.\xe2\x80\x9d Consequently,\nthe court found that Blodgett failed to prove manifest injustice based on monetary need.\n\n392\n\n\x0cWhile we believe the court did not abuse its discretion in making this determination, we are\nconcerned that the court\xe2\x80\x99s analysis could lead to the conclusion that a showing of manifest injustice\nmay turn on predictions concerning the future financial health of the petitioner. Such an approach\nwould allow slayers of their decedents to inherit if they are poor, but not if they are financially\nsolvent. We doubt that this distinction\xe2\x80\x94 between different slayers based on their personal wealth\xe2\x80\x94\nreflects the legislature\xe2\x80\x99s purpose in enacting the manifest injustice provision.\nDespite these concerns, we conclude that the superior court did not abuse its discretion in finding\nthat Blodgett failed to prove manifest injustice by a preponderance of the evidence.\nConclusion\nBecause the superior court did not abuse its discretion in concluding that manifest injustice would\nnot result from application of the slayer statute, we affirm the decision of the superior court.\n8.5.1.2 Slayer\xe2\x80\x99s Descendant May Not Be Legally Disinherited\n\nIn the Matter of the Estate of Van Der Veen, 935 P.2d 1042 (Kan. 1997)\nALLEGRUCCI, Justice:\nThis is an appeal from the decision of the district court denying one-half of the estate of Morris and\nDeanne Van Der Veen to their biological grandchild, D.B.B. Decedents\xe2\x80\x99 son, Kent Van Der Veen,\nwas disqualified under K.S.A.1996 Supp. 59-513 (slayer statute) from inheriting any portion of their\nestate. The case was transferred from the Court of Appeals to this court pursuant to K.S.A. 203018(c).\nThe facts are not in dispute. The matter was decided by the district court on the following stipulated\nfacts: The decedents, Morris and Deanne Van Der Veen, were the parents of Kent. On or about\nApril 30, 1993, Kent murdered his parents. Kent was 19 years old at the time. Two years earlier,\nKent fathered a child, who had been legally adopted by unknown persons prior to April 30, 1993.\nThe decedents never were aware of the existence of the minor child.\nLaura Ann Van Der Veen is the decedents\xe2\x80\x99 daughter. Decedents had no other heirs, devisees, or\nlegatees. At the time Kent killed his parents, he had no testamentary instrument of his own.\nThe 1989 joint will of Morris and Deanne Van Der Veen provides for the following distribution of\nassets that remain after their debts and obligations are satisfied:\n\xe2\x80\x9cUpon the death of the survivor of us, each of us hereby gives, devises, and bequeaths all of\nthe rest, residue, and remainder of our property of every kind, character, and description,\nand wherever located, unto our children, Laura Ann Van Der Veen and Kent Phillip Van\nDer Veen, equally and per stirpes.\xe2\x80\x9d\nIn their will, the Van Der Veens bequeathed one-half of their estate to each of their children, Laura\nand Kent. It is agreed that Kent is statutorily disqualified from inheriting property from his parents.\nAt all pertinent times, it has been provided by statute:\n393\n\n\x0c\xe2\x80\x9cNo person convicted of feloniously killing, or procuring the killing of, another\nperson shall inherit or take by will[,] by intestate succession, as a surviving joint\ntenant, as a beneficiary under a trust or otherwise from such other person any\nportion of the estate or property in which the decedent had an interest.\xe2\x80\x9d K.S.A. 1996\nSupp. 59-513.\nThis appeal challenges the district court\xe2\x80\x99s determination that the statute prevails over the express\nterms of the Van Der Veens\xe2\x80\x99 will, resulting in D.B.B.\xe2\x80\x99s being disinherited. The argument made on\nbehalf of D.B.B. by her guardian ad litem is that the language of her grandparents\xe2\x80\x99 bequest to their\nchildren, \xe2\x80\x9cequally and per stirpes,\xe2\x80\x9d must be construed to give what would have been Kent\xe2\x80\x99s share, if\nhe had not been disqualified, to his heir, D.B.B. D.B.B.\xe2\x80\x99s guardian ad litem further argues that\nD.B.B.\xe2\x80\x99s adoptive status is irrelevant because K.S.A. 59-2118(b) provides that \xe2\x80\x9c[a]n adoption shall\nnot terminate the right of the child to inherit . . . through the birth parent.\xe2\x80\x9d\nAppellee Laura Van Der Veen counters that the language of 59-2118(b), on which D.B.B. relies, was\nadded in 1993 and became effective after the Van Der Veens\xe2\x80\x99 deaths. If the effective date of the\namendment does not prevent it from applying in the present case, appellee further argues, the\nstatute should be construed to restrict inheritance \xe2\x80\x9cthrough the birth parent\xe2\x80\x9d to instances where the\nbirth parent has died. In other words, it should be interpreted so as to exclude inheritance through a\nbirth parent who is alive but disqualified. In appellee\xe2\x80\x99s words, the statute should be interpreted so\nthat the disqualified killer is treated as if he never existed rather than as if he had died.\nWe consider whether Kent\xe2\x80\x99s being barred from inheriting from his parents prevents the inheritance\nfrom passing through him to his child. This was the basis for the trial court\xe2\x80\x99s decision and has not\nbeen decided by the appellate courts of this state. The question has arisen in other jurisdictions,\nhowever, and has been pondered by commentators, scholars, and the National Conference of\nCommissioners on Uniform State Laws.\nIn In re Estate of Benson, 548 So.2d 775 (Fla.App.1989), a murderer\xe2\x80\x99s minor children were allowed to\ninherit his share of intestate and testate estates. Margaret Benson, the deceased testator, was the\nmother of Carol Benson Kendall, Steven Benson, and Scott Benson. Steven had minor children;\nScott had no heirs. Steven killed Margaret and Scott. Margaret\xe2\x80\x99s will devised her property to her\nthree children in equal shares and per stirpes. Scott died intestate. An intestacy section of Florida\xe2\x80\x99s\nprobate code provides that the property of a decedent such as Scott, without parents or lineal\ndescendants, passes to the decedent\xe2\x80\x99s siblings and the descendants of deceased siblings. Florida\xe2\x80\x99s\n\xe2\x80\x9cslayer statute\xe2\x80\x9d provides that \xe2\x80\x9cthe estate of the decedent passes as if the killer had predeceased the\ndecedent.\xe2\x80\x9d 548 So.2d at 777. The trial judge applied Florida\xe2\x80\x99s anti-lapse statute in concluding that\nSteven\xe2\x80\x99s minor children inherited through him. The District Court of Appeals reached the same\nconclusion for somewhat different reasons:\n\xe2\x80\x9cIt would have been the correct result in any event, i.e., whether the express\nprovisions of the will were utilized or whether the Anti-Lapse Statute was used.\nMargaret Benson\xe2\x80\x99s will devised her property to her children \xe2\x80\x98per stirpes.\xe2\x80\x99\nEven though the drafter of the will testified in the murder trial that she intended a\nclass gift to her children, since a class gift is not expressly provided by the terms of\nthe will even if the term \xe2\x80\x98per stirpes\xe2\x80\x99 had been omitted from the will, section 732.611,\nFlorida Statutes (1985), would have applied to make the devises and bequests \xe2\x80\x98per\n394\n\n\x0cstirpes.\xe2\x80\x99 Further, even if Margaret Benson\xe2\x80\x99s will had provided for a class gift to her\nthree children, the Anti-Lapse Statute would have substituted Steven Benson\xe2\x80\x99s minor\nchildren in his place as a devisee under the will in the absence of a contrary intent\nexpressed in the will.\xe2\x80\x9d 548 So.2d at 778.\nAt the time Benson was being considered by the Florida District Court of Appeals, the pertinent\nsection of the Uniform Probate Code (UPC) was worded like the Florida statute. Unif. Probate\nCode 2-803(a), 8 U.L.A. 172 (1983) provided that a surviving heir or devisee who intentionally and\nfeloniously killed the decedent \xe2\x80\x9cis not entitled to any benefits under the will or under this Article,\nand the estate of decedent passes as if the killer had predeceased the decedent.\xe2\x80\x9d Although the\nsection was \xe2\x80\x9csubstantially revised\xe2\x80\x9d in 1993, \xe2\x80\x9cthe main thrust of the pre-1990 version\xe2\x80\x9d was not\naltered. Unif. Probate Code 2-803, Comment, 8 U.L.A. 200 (1996 Supp.). Subsections (b), (c), and\n(e) of the current version of 2-803 provide that a decedent\xe2\x80\x99s estate, intestate or under a will, passes\nas if the killer disclaimed his or her share. The effect of disclaimer, as established in Unif. Probate\nCode 2-801(d), 8 U.L.A. 196 (1996 Supp.) is as follows:\n\xe2\x80\x9cIf property or an interest therein devolves to a disclaimant under a testamentary\ninstrument . . . or under the laws of intestacy . . . the disclaimed interest devolves as\nif the disclaimant had predeceased the decedent, but if by law or under the\ntestamentary instrument the descendants of the disclaimant would share in the\ndisclaimed interest by representation or otherwise were the disclaimant to predecease\nthe decedent, then the disclaimed interest passes by representation, or passes as\ndirected by the governing instrument, to the descendants of the disclaimant who\nsurvive[s] the decedent.\xe2\x80\x9d\nThe Kansas statute that sets out the effect of disclaimer is K.S.A. 59-2293(a). It provides generally\nthat disclaimed property shall descend or be distributed as if the disclaimant had predeceased the\ndecedent.\nWith regard to the UPC, the Tennessee Court of Appeals, in Carter v. Hutchison, 707 S.W.2d 533, 537\nn. 10 (Tenn.App.1985), noted:\n\xe2\x80\x9cA vast majority of states enacting the forfeiture statutes have patterned them after\nthe model statute proposed by Dean Wade in 1936, see J. Wade, [Acquisition of\nProperty by Willfully Killing Another\xe2\x80\x94A Statutory Solution, 49 Harv. L.Rev. 715, 753\xe2\x80\x9355\n(1936) ], or the Uniform Probate Code. Thus, in twenty-nine states there is a\nstatutory presumption that the victim\xe2\x80\x99s property passes to his estate as if the slayer\nhad predeceased the decedent. See Uniform Probate Code \xc2\xa72-803 (1983) and J.\nWade, supra n. 5 at 753 Section 4. Four states provide for forfeiture but are silent as\nto distribution. Tennessee is among ten states that provide for forfeiture and for\ndistribution to the decedent\xe2\x80\x99s heirs through the laws of intestate succession. The\neight remaining states without statutes have forfeiture provisions by court decision.\nSee generally Maki & Kaplan, [Elmer\xe2\x80\x99s Case Revisited: The Problem of the Murdering Heir,\n41 Ohio St. L.J. 905, 957 (1980).\xe2\x80\x9d\nSee W. McGovern, Homicide and Succession to Property, 68 Mich. L.Rev. 65, 66\xe2\x80\x9367 (1969). It appears that\nKansas is one of the few states that does not expressly provide for distribution of the forfeited\nshare.\n395\n\n\x0cTurning to the present case, it is clear that under either version of the UPC, appellee would take\none-half of the estate of her parents. The other half would be taken by her disqualified brother\xe2\x80\x99s\nminor child.\nThe Van Der Veens intended for their daughter to take one-half of their estate. Their knowledge of\nKent\xe2\x80\x99s troubled nature is reflected in a provision of the Van Der Veens\xe2\x80\x99 will that nominates Laura to\nserve as Kent\xe2\x80\x99s guardian and conservator. Nonetheless, they bequeathed one-half of their estate to\nhim. There is nothing in the instrument from which the court could conclude that the Van Der\nVeens intended for Laura to receive the entire estate in the event of Kent\xe2\x80\x99s incapacity or\ndisqualification. By extension, it may reasonably be inferred that they would not have intended for\nKent\xe2\x80\x99s innocent child to be disqualified in order for Laura to receive the entire estate.\nAppellee invites the court to speculate that the Van Der Veens would not have intended for their\nunknown, illegitimate grandchild to share in their estate. We decline the invitation and note there is\nno factual support in the record for such a speculation.\nThe judgment of the district court is reversed.\n8.5.2\n\nExceptions\n\nSome acts that result in the death of a person may be exempt from the application of the\nslayer statute.\n8.5.2.1 Assisted Suicide82\n\nIn re the Estate of Schunk, 760 N.W.2d 446 (Wis. 2008)\nVERGERONT, J.\nThe issue on appeal in this probate action is the proper construction of WIS. STAT. \xc2\xa7 854.14 (2003\xe2\x80\x93\n04), which prevents a person who \xe2\x80\x9cunlawful[ly] and intentional[ly] kill[s]\xe2\x80\x9d another from benefiting\nunder the decedent\xe2\x80\x99s will and other instruments. We agree with the circuit court that \xe2\x80\x9cunlawful and\nintentional killing\xe2\x80\x9d within the meaning of this statute does not include assisting another to commit\nsuicide. We therefore affirm.\nBackground\nEdward Schunk died from a self-inflicted shotgun wound. At the time of his death he was terminally\nill with non-Hodgkin\xe2\x80\x99s lymphoma. He lived with his wife, Linda, and their daughter, Megan. Edward\nhad six older children who are not Linda\xe2\x80\x99s children. Edward left a will that is the subject of dispute\nin another action, but for purposes of this action the important point is that Linda and Megan, along\nwith others, are beneficiaries under Edward\xe2\x80\x99s will.\n\n82\n\nJeffrey G. Sherman, Mercy Killing and the Right to Inherit, 61 U. Cin. L. Rev. 803 (1993).\n\n396\n\n\x0cThis action began with a petition for informal administration of Edward\xe2\x80\x99s estate. One of Edward\xe2\x80\x99s\nolder daughters filed a demand for formal proceedings on the issue of whether Linda and Megan\nhad unlawfully and intentionally killed Edward and were thus barred from inheriting under his will\npursuant to WIS. STAT. \xc2\xa7 854.14. Her position and that of four of her siblings, who joined with her\nin the proceeding (the objectors), is that Linda and Megan assisted Edward in committing suicide.\nLinda and Megan filed a motion for summary judgment on this issue. They denied that they assisted\nEdward in committing suicide but contended that, even if that were true, WIS. STAT. \xc2\xa7 854.14 does\nnot bar them from inheriting under Edward\xe2\x80\x99s will. The objectors opposed the motion because in\ntheir view the statute applies to assisted suicide, and they contended they were entitled to a trial to\nestablish that Linda and Megan did assist in Edward\xe2\x80\x99s suicide.\nThe factual submissions show that Edward was hospitalized several days before his death.\nAccording to the medical records, on the day of his death his doctor allowed him to leave on a oneday pass to see his home and his dogs \xe2\x80\x9cone more time.\xe2\x80\x9d Linda and Megan brought him home. There\nare factual disputes over Edward\xe2\x80\x99s mental and physical condition on that day and what occurred\nafter he arrived home. Viewed most favorably to the objectors, the evidence shows that Linda and\nMegan knew that Edward wanted to commit suicide and brought him home so that he could do so.\nThey drove him to a cabin on their property, helped him inside, gave him a loaded shotgun, and left.\nViewed most favorably to Linda and Megan, the evidence shows that Edward drove himself to the\ncabin, taking his gun and hunting bag, and they did not know that he intended to commit suicide. It\nis undisputed that Edward\xe2\x80\x99s son and grandson found him later that day in the cabin, dead from a\nsingle gunshot wound to the chest.\nThe circuit court concluded that, assuming the objectors\xe2\x80\x99 view of the evidence was correct for\npurposes of the motion, Linda\xe2\x80\x99s and Megan\xe2\x80\x99s conduct in assisting Edward in committing suicide did\nnot come within the statutory language of \xe2\x80\x9cunlawful and intentional killing.\xe2\x80\x9d WIS. STAT. \xc2\xa7854.14.\nThe court therefore granted summary judgment in favor of Linda and Megan.\nDiscussion\nOn appeal the objectors contend the circuit court erred in its construction of WIS. STAT. \xc2\xa7 854.14\nand therefore erred in granting summary judgment.\nWhen we review summary judgment we employ the same methodology as the circuit court and our\nreview is de novo. Green Spring Farms v. Kersten, 136 Wis.2d 304, 314\xe2\x80\x9316, 401 N.W.2d 816 (1987). A\nparty is entitled to summary judgment if there are no genuine issues of material fact and that party is\nentitled to judgment as a matter of law. WIS. STAT. \xc2\xa7 802.08(2). In assessing the factual\nsubmissions, we view them most favorably to the opposing party and draw all reasonable inferences\nin favor of that party. Burbank Grease Servs. v. Sokolowski, 2006 WI 103, 294 Wis.2d 274, 717N.W.2d\n781.\nThe parties here agree that, for purposes of our review, we, like the circuit court, are to accept the\nview of the evidence advanced by the objectors\xe2\x80\x94 that Linda and Megan assisted Edward in\ncommitting suicide. The issue is whether, given these facts, WIS. STAT. \xc2\xa7854.14 bars Linda and\nMegan from inheriting under Edward\xe2\x80\x99s will.\n\n397\n\n\x0cWhen we construe a statute we begin with the language of the statute and give it its common,\nordinary, and accepted meaning, except that technical or specially defined words are given their\ntechnical or special definitions. State ex rel. Kalal v. Circuit Court, 2004 WI 58, 271 Wis.2d 633, 681\nN.W.2d 110. We may use a dictionary to establish the common meaning of a word. Swatek v. County\nof Dane, 192 Wis.2d 47, 61, 531 N.W.2d 45 (1995). We interpret statutory language in the context in\nwhich it is used, not in isolation but as part of a whole, in relation to the language of surrounding or\nclosely related statutes, and we interpret it reasonably to avoid absurd or unreasonable results. Kalal,\n271 Wis.2d 633, 681 N.W.2d 110. We also consider the scope, context, and purpose of the statute\ninsofar as they are ascertainable from the text and structure of the statute itself. Id. If, employing\nthese principles, we conclude the statutory language has a plain meaning, then we apply the statute\naccording to that plain meaning. Id.\nWISCONSIN STAT. \xc2\xa7 854.14 (2003\xe2\x80\x9304) provides in relevant part:\n(2) Revocation of benefits. Except as provided in sub. (6), the unlawful and intentional\nkilling of the decedent does all of the following:\n(a) Revokes a provision in a governing instrument that, by reason of the decedent\xe2\x80\x99s death,\ndoes any of the following:\n1. Transfers or appoints property to the killer\n.....\n(3) Effect of revocation. Except as provided in sub. (6), provisions of a governing\ninstrument that are revoked by this section are given effect as if the killer disclaimed all\nrevoked provisions. . . .\n....\n(6) Exceptions. This section does not apply if any of the following applies:\n(a) The court finds that, under the factual situation created by the killing, the\ndecedent\xe2\x80\x99s wishes would best be carried out by means of another disposition\nof the property.\n(b) The decedent provided in his or her will, by specific reference to this section,\nthat this section does not apply.\nThe key phrase for purposes of this appeal is \xe2\x80\x9cunlawful and intentional killing of the decedent.\xe2\x80\x9d\nWIS. STAT. \xc2\xa7 854.14(2). The objectors contend that this plainly includes assisting the decedent to\ncommit suicide. We disagree and conclude the phrase plainly does not include this conduct.\nIn the dictionary the objectors refer us to, the first definition of the verb \xe2\x80\x9ckill\xe2\x80\x9d is \xe2\x80\x9cto deprive of life.\xe2\x80\x9d\nWebster\xe2\x80\x99s Ninth New Collegiate Dictionary 661 (1989). \xe2\x80\x9cTo commit suicide\xe2\x80\x9d is defined as \xe2\x80\x9cto put\n(oneself) to death: kill.\xe2\x80\x9d Id. at 1180. A person who assists another in voluntarily and intentionally\ntaking his or her own life is plainly not depriving the other of life. As the assumed facts in this case\nillustrate, providing Edward with a loaded shotgun did not deprive him of his life: he deprived\nhimself of life by shooting himself with the shotgun. \xe2\x80\x9cKilling\xe2\x80\x9d is not commonly used to describe\nassisting another to commit suicide, just as \xe2\x80\x9ckiller\xe2\x80\x9d is not commonly used to describe the person\nwho assists another to kill himself or herself.\n398\n\n\x0cThe objectors argue that because Linda and Megan provided the means with which Edward killed\nhimself, they were the agents of his death and thus \xe2\x80\x9ckillers\xe2\x80\x9d within the meaning of the statute. We\ndo not agree that \xe2\x80\x9ckiller\xe2\x80\x9d is commonly understood to mean the person who provides the means that\nenable another to kill himself or herself.\nThe objectors point out that WIS. STAT. \xc2\xa7 940.12 makes it a felony to \xe2\x80\x9cwith intent that another\ntake his or her own life assist[ ] such person to commit suicide. . . .\xe2\x80\x9d Thus, they assert, Linda and\nMegan acted unlawfully and the facts show they intended to help Edward commit suicide. However,\n\xe2\x80\x9cunlawful\xe2\x80\x9d and \xe2\x80\x9cintentional\xe2\x80\x9d modify \xe2\x80\x9ckilling\xe2\x80\x9d by limiting its meaning. If, as we have concluded,\nassisting another to commit suicide is not \xe2\x80\x9ckilling\xe2\x80\x9d another, it does not become so because the\nconduct is unlawful and intentional.\nThe objectors also argue that the exception in WIS. STAT. \xc2\xa7 854.14(6)(b) shows that the legislature\nintended \xe2\x80\x9cunlawful and intentional killing\xe2\x80\x9d to include assisting another to commit suicide. This\nparagraph provides that \xc2\xa7 854.14 does not apply if \xe2\x80\x9c[t]he decedent provided in his or her will, by\nspecific reference to this section, that this section does not apply.\xe2\x80\x9d According to the objectors, the\nonly reasonable meaning of this exception is that it refers to assisted suicide, because the legislature\ncould not logically have intended to permit a testator to expressly allow another to inherit under the\nwill if that person committed \xe2\x80\x9cintentional homicide.\xe2\x80\x9d\nWe conclude WIS. STAT. \xc2\xa7 854.14(6)(b) does not alter the plain meaning of \xe2\x80\x9cunlawful and\nintentional killing.\xe2\x80\x9d This paragraph plainly expresses the legislature\xe2\x80\x99s intent to allow a testator to\ndispose of his or her property as the testator wishes notwithstanding the fact that an intended\nbeneficiary has unlawfully and intentionally deprived the testator of his or her life. It may be unlikely\na testator would choose to do so, but we cannot say it is illogical or absurd to think a testator would\never do so. A testator might, for example, contemplate that an intended beneficiary might kill the\ntestator in an act of euthanasia\xe2\x80\x94 \xe2\x80\x9cthe act . . . of killing . . . hopelessly sick . . . individuals . . . for\nreasons of mercy,\xe2\x80\x9d Webster\xe2\x80\x99s Ninth New Collegiate Dictionary 429 (1989); and the testator might\nwant this to happen. There may be other circumstances that would reasonably come within the\nexception in para. (6)(b), but we need not define its parameters to resolve this appeal. The point here\nis simply that there are ways to reasonably construe the exception that are consistent with the\ncommon meaning of the verb \xe2\x80\x9ckill.\xe2\x80\x9d\nConclusion\nWe conclude the circuit court properly construed \xe2\x80\x9cunlawful and intentional killing\xe2\x80\x9d in WIS. STAT. \xc2\xa7\n854.14 not to include assisting another to commit suicide. We therefore affirm.\nJudgment affirmed.\n\n399\n\n\x0c8.5.2.2 Mentally Incompetent Slayer83\n\nEstate of Armstrong v. Armstrong, 170 So.3d 510 (Miss. 2015)\nRANDOLPH, Presiding Justice, for the Court:\nThis is a case of first impression regarding the interpretation of Mississippi Code Section 91-5-33,\nknown as the \xe2\x80\x9cSlayer Statute,\xe2\x80\x9d which states that anyone who \xe2\x80\x9cwilfully cause[s] or procure[s]\xe2\x80\x9d the\ndeath of another shall not inherit from his or her victim. John R. Armstrong, a severely mentally ill\nman, killed Joan Armstrong, his eighty-year-old mother. This fact is not disputed by any party. The\nCircuit Court of Jackson County determined that John was not competent to stand trial for the\nmurder of Joan, and John was committed to the state hospital at Whitfield, where he resides today.\nBased on the Slayer Statute, John\xe2\x80\x99s four siblings requested that the devise to John in their mother\xe2\x80\x99s\nwill be declared void. The chancellor granted their motion, and John, through his court-appointed\nguardian ad litem, appeals the ruling. Finding that a hearing to determine John\xe2\x80\x99s mental status at the\ntime of the murder is necessary prior to granting the motion, we reverse and remand for a hearing\nconsistent with this opinion.\nSTATEMENT OF FACTS AND PROCEEDINGS BELOW\nOn August 7, 2010, Joan Armstrong was contacted by several of her son\xe2\x80\x99s neighbors, who were\nworried about their children\xe2\x80\x99s safety, after they noticed John acting erratically. John had a long\nhistory of serious mental illness, having been treated since 1989. Joan picked up John at his\napartment and brought him back to her condominium. Joan had invited some of her friends to\ncome over to the condominium swimming pool. Worried that his mother was leaving him, John\nwent upstairs and retrieved a crochet-covered brick, which he used to hit Joan repeatedly over the\nhead. He then moved her body to the bathroom and repeatedly stabbed her. He informed law\nenforcement officers from the Ocean Springs Police Department (OSPD) that he was preparing her\nbody to be buried by bleeding her.\nJoan\xe2\x80\x99s death certificate listed her cause of death as \xe2\x80\x9ccontusion of brain with subdural and\nsubarachnoid hemorrhage [due to] multiple blunt force injuries of head.\xe2\x80\x9d Joan also sustained\nmultiple stab wounds and rib fractures. Joan\xe2\x80\x99s death was listed as a homicide due to the multiple\nstrikes to her head.\nJohn admitted to the OSPD that he had killed Joan. His confession was overheard by his sister-inlaw, Lee. John was arrested and subsequently indicted for Joan\xe2\x80\x99s murder.\nThe circuit court ordered that John receive a mental evaluation and treatment from the state hospital\nat Whitfield, to determine if he was competent to stand trial. Dr. Reb McMichael, Chief of Forensic\nServices at the Mississippi State Hospital, opined that John was not competent to stand trial. The\ncircuit court then committed John to Whitfield, ordering that he remain at that facility until he was\ndeclared competent to stand trial. John continues to undergo treatment at Whitfield.\n\nLaurel Sevier, Kooky Collects: How the Conflict Between Law and Psychiatry Grants Inheritance Rights to California\xe2\x80\x99s Mentally Ill\nSlayers, 47 Santa Clara L. Rev. 379 (2007).\n83\n\n400\n\n\x0cTerry L. Armstrong, John\xe2\x80\x99s brother, filed a petition in the Chancery Court of Jackson County,\nMississippi, to probate Joan\xe2\x80\x99s will. The will appointed Terry as executor. Joan left her estate equally\nto her five children. The petition listed the following children as Joan\xe2\x80\x99s sole heirs-at-law: Terry L.\nArmstrong, David Armstrong, Jill Seiler, Gail Jones, and John Armstrong. Joan\xe2\x80\x99s will was admitted\nto probate, and letters testamentary were granted to Terry, as executor. The chancellor also entered\nan order establishing Joan\xe2\x80\x99s heirs-at-law as Terry Armstrong, David Armstrong, Jill Seiler, Gail\nJones, and John Armstrong.\nOnce the heirs-at-law were determined, Terry filed a Motion to Declare Devise Void as to John,\nbased on the Slayer Statute. Terry requested that this motion not be heard until the pending criminal\ncharges against John were finally resolved. Due to John\xe2\x80\x99s mental illness, Terry requested that a\nguardian ad litem be appointed. Terry also filed a Motion for Partial Distribution, acknowledging that\nsignificant time might pass before John\xe2\x80\x99s guilt was determined. Therefore, the assets of Joan\xe2\x80\x99s estate,\nexclusive of the portion assigned to John, should be distributed to the other four children. The\nchancellor entered an order distributing eighty percent of Joan\xe2\x80\x99s residuary estate equally to four of\nJoan\xe2\x80\x99s children and placing John\xe2\x80\x99s twenty percent in a supplemental needs trust.\nStacie E. Zorn was appointed to represent John as his guardian ad litem. In response to the motion to\ndeclare the devise to John void, John argued that Terry had failed to prove he willfully or feloniously\ncaused the death of Joan; the matter was not ripe for hearing because there had been no adjudication\nof his guilt in the criminal matter; and that, due to his mental incapacity, he lacked the requisite\nintent to commit a willful act; therefore, the Slayer Statute was not applicable.\nAfter the chancellor heard arguments on the motion, she entered an order declaring the devise to\nJohn void. The chancellor recognized that this was a case of first impression, as there had been no\ndecision addressing whether a person determined to be mentally incompetent to stand trial could be\nconsidered to have \xe2\x80\x9cwilfully\xe2\x80\x9d caused the death of another. The chancellor determined that the\nmeaning of \xe2\x80\x9cwilfully\xe2\x80\x9d should be interpreted within the civil context, and not the criminal context.\nThe chancellor found the following evidence to be proof of John\xe2\x80\x99s willfulness in Joan\xe2\x80\x99s killing:\n1. John was discovered at Joan\xe2\x80\x99s home with Joan\xe2\x80\x99s body by law enforcement. John was covered\nin Joan\xe2\x80\x99s blood.\n2. In the immediate aftermath of the homicide, John confessed to law enforcement. This\nconfession was witnessed by John\xe2\x80\x99s sister-in-law who offered testimony at this motion hearing.\n3. OSPD, at the conclusion of their investigation, issued a Complaint alleging John,\n\xe2\x80\x9cfeloniously, willfully and unlawfully with deliberate design\xe2\x80\x9d caused the death of Joan.\n4. A Jackson County Grand Jury returned an indictment against John for the willful and\nfelonious murder of Joan.\nBased on the above evidence, the chancellor held that John willfully caused the death of his mother\nand could not benefit from her estate pursuant to the Slayer Statute. The chancellor stated that:\n[t]his is the type of behavior our Slayer Statute contemplates. Further, while it is\nacceptable under our justice system to allow a killer to escape criminal liability\ndue to his mental illness, it would be a perversion of justice to allow him to\n401\n\n\x0cbenefit from it in this instance, especially in a court of equity.\nJohn timely filed notice of his appeal. The chancellor ordered that the portion of the estate set aside\nfor John would remain in the registry of the court or other trust account pending the outcome of\nthis appeal.\nSTATEMENT OF THE ISSUES\nJohn presents the following three issues:\nI. Whether the Chancery Court was precluded from ruling upon the Executor\xe2\x80\x99s Motion to\nDeclare Devise Void under the Mississippi slayer statute, Mississippi Code Annotated \xc2\xa7 91-5-33,\nwhen there has been no outcome in John\xe2\x80\x99s criminal proceedings due to his mental incapacity to\nstand trial at this time.\nII. Whether an individual charged with murder but not tried due to mental incapacity may be\nprecluded from inheriting under the Mississippi slayer statutes, Mississippi Code Annotated \xc2\xa7\xc2\xa7\n91-1-25 and 91-5-33.\nIII. Whether the Executor presented sufficient evidence to prove that the killing of Joan\nArmstrong was intentional on the part of John Armstrong.\nANALYSIS\nFindings of a chancellor will not be disturbed on review unless the chancellor was \xe2\x80\x9cmanifestly\nwrong, clearly erroneous, or applied the wrong legal standard.\xe2\x80\x9d Bluewater Logistics, LLC v. Williford, 55\nSo. 3d 148, 166 (Miss. 2011)(quoting Powell v. Campbell, 912 So. 2d 978, 981 (Miss. 2005)). The Court\nwill review a chancellor\xe2\x80\x99s judgment for abuse of discretion. Hotboxxx, LLC v. City of Gulfport, 154 So.\n3d 21, 24 (Miss. 2015)(citing Mississippi Power Co. v. Hanson, 905 So. 2d 547, 549 (Miss. 2005); McNeil\nv. Hester, 753 So.2d 1057, 1063 (Miss. 2000). For questions of law, the Court will apply the de novo\nstandard of review. Hotboxxx, 154 So.3d at 24.\nWhen called upon to examine a statute, \xe2\x80\x9cthe Court first looks to the language of the statute.\xe2\x80\x9d Lawson\nv. Honeywell Intern, Inc., 75 So. 3d 1024, 1027 (Miss. 2011) (citing Pinkton v. State, 481 So.2d 306, 309\n(Miss. 1985)). \xe2\x80\x9cIf the words of a statute are clear and unambiguous, the Court applies the plain\nmeaning of the statute and refrains from using principles of statutory construction.\xe2\x80\x9d Id. (citing Clark\nv. State ex rel. Miss. State Med. Ass\xe2\x80\x99n 381 So.2d 1046, 1048 (Miss. 1980)). Section 91-5-33 of the\nMississippi Code reads in pertinent part:\nIf any person shall wilfully cause or procure the death of another in any manner,\nhe shall not take the property, or any part thereof, real or personal, of such other\nunder any will, testament, or codicil. Any devise to such person shall be void and,\nas to the property so devised, the decedent shall be deemed to have died\nintestate.\nMiss. Code Ann. \xc2\xa7 91-5-33 (Rev.2013) (emphasis added).\nThe key word in this statute is \xe2\x80\x9cwilfully.\xe2\x80\x9d In the criminal context, this Court has addressed the\n402\n\n\x0cmeaning of \xe2\x80\x9cwilfully,\xe2\x80\x9d finding that it is synonymous with \xe2\x80\x9cknowingly\xe2\x80\x9d and \xe2\x80\x9cintentionally.\xe2\x80\x9d\nThe Court has held that terms \xe2\x80\x9cwillfully\xe2\x80\x9d and \xe2\x80\x9cknowingly\xe2\x80\x9d have substantially the same meaning in\ncriminal statutes. Ousley [v. State], [154 Miss. 451,] 122 So. [731,] 732 (1929) ] (indictment was\nsufficient even though it used the words \xe2\x80\x9cwillfully, unlawfully[,] and feloniously\xe2\x80\x9d rather than\n\xe2\x80\x9cknowingly\xe2\x80\x9d as used in the statute). See also Boyd v. State, 977 So.2d 329, 335 (\xc2\xa7 22) (Miss. 2008)(\xe2\x80\x9cAn\nact \xe2\x80\x98willfully\xe2\x80\x99 done is an act \xe2\x80\x98knowingly\xe2\x80\x99 and \xe2\x80\x98intentionally\xe2\x80\x99 done.\xe2\x80\x9d); Moore v. State, 676 So. 2d 244, 246\n(Miss. 1996) (\xe2\x80\x9cwillfully\xe2\x80\x9d has the same meaning as \xe2\x80\x9cknowingly\xe2\x80\x9d). Relying on Ousley, the Court of\nAppeals held that the terms \xe2\x80\x9cwilfully and feloniously\xe2\x80\x9d had substantially the same meaning as\n\xe2\x80\x9cpurposely or knowingly\xe2\x80\x9d when ruling on the sufficiency of a jury instruction for aggravated assault\nDavis v. State, 909 So.2d 749, 752-53 (\xc2\xa7 13) (Miss. Ct. App. 2005). State v. Hawkins, 145 So. 3d 636,\n641 (Miss. 2014). In Ousley, this Court held that \xe2\x80\x9c[a] willful act is one that is done knowingly and\npurposely with the direct object in view of injuring another.\xe2\x80\x9d Ousley, 122 So. At 732 (quoting Hazle\nv. So. Pac. Co., 173 F. 431 (C.C.D. Or. 1909)).\nAdditionally, the Model Penal Code reads that \xe2\x80\x9c[a] requirement that an offense be committed\nwilfully is satisfied if a person acts knowingly with respect to the material elements of the offense,\nunless a purpose to impose further requirements appears.\xe2\x80\x9d Model Penal Code \xc2\xa7 2.02(8) (1962). A\nperson acts \xe2\x80\x9cknowingly\xe2\x80\x9d with respect to a material element of an offense \xe2\x80\x9cif the element involves\nthe nature of his conduct or the attendant circumstances, he is aware that his conduct is of that\nnature or that such circumstances exist\xe2\x80\x9d and \xe2\x80\x9cif the element involves a result of his conduct, he is\naware that it is practically certain that his conduct will cause such a result.\xe2\x80\x9d Model Penal Code \xc2\xa7\n2.02(2)(b)(i)-(ii) (1962).\nHowever, Section 91-5-33 is a civil statute. The usual meaning of \xe2\x80\x9cwillful\xe2\x80\x9d in tort law is that an\n\xe2\x80\x9cactor has intentionally done an act of an unreasonable character in disregard of a risk known to him\nor so obvious that he must be taken to have been aware of it, and so great as to make it highly\nprobable that harm would follow.\xe2\x80\x9d W. Prosser, Handbook of the Law of Torts \xc2\xa7 34 (1971).\nThis Court has held that a person who willfully causes the death of another is barred from\nparticipating in the victim\xe2\x80\x99s estate. Genna v. Harrington, 254 So.2d 525, 527 (Miss. 1971).\n\xe2\x80\x9cMississippi\xe2\x80\x99s Slayer Statute is strictly construed and narrow in purpose.\xe2\x80\x9d In re Estate of Miller, 849 So.\n2d 703, 706 (Miss. 2003). \xe2\x80\x9cThe sole purpose of a \xe2\x80\x98slayer statute\xe2\x80\x99 is to prevent the slayer from\nbenefitting from the death of the victim or profiting from the wrongdoing.\xe2\x80\x9d Id. (quoting 26B C.J.S.\nDescent and Distribution \xc2\xa7 57, at 362-63 (2001)).\nMississippi courts have not addressed whether the Slayer Statute precludes insane persons from\ninheriting from their victims. Some cases have discussed manslaughter pleas, which are beneficial to\nthis analysis. In Henry v. Toney, 211 Miss. 93, 50 So.2d 921 (951), the Court was presented with the\nissue of whether John Henry willfully caused the death of his wife, such that he could not inherit her\nland. Henry was charged with second-degree murder but pleaded guilty to manslaughter. Id. at 922.\nThe Court noted that, under Mississippi statutes, manslaughter is not necessarily a willful killing. Id.\nat 923. \xe2\x80\x9cFor that reason, it is obvious that such plea cannot be conclusive evidence of guilt of such a\nkilling. On the contrary, it can amount to only slight evidence, or evidence merely that the killing has\noccurred.\xe2\x80\x9d Id. The Court reversed the finding of the trial court that Henry could not inherit his\nwife\xe2\x80\x99s property and remanded the case for a new trial, instructing the trial court that \xe2\x80\x9call evidence\nwhich will throw any light on the issue of whether or not this killing was willful is competent and\nadmissible.\xe2\x80\x9d Id.\n403\n\n\x0cIn Hood v. Van Devender, 661 So. 2d 198 (Miss. 1995), Linda Van Devender killed her husband. Linda\nwas charged with murder, pleaded guilty to manslaughter, and received a twenty-year-suspended\nsentence. Id. at 201. No further evidence of culpability was offered by her husband\xe2\x80\x99s estate. Id. The\nchancellor determined that the estate had failed to show that Linda willfully killed her husband. Id. at\n200.\nOn appeal, the Court considered \xe2\x80\x9cwhether evidence of a guilty plea to the charge of manslaughter is\nsufficient, standing alone, to enable a fact finder to conclude that one is prohibited from inheriting\nunder our statutes which precluding one who willfully kills another from inheriting from that\nperson.\xe2\x80\x9d Id. at 201. Relying on Franklin Life Insurance Company v. Strickland, 376 F.Supp 280, 283\n(N.D. Miss. 1974) (\xe2\x80\x9cAlthough a plea of guilty in a criminal proceeding and conviction thereon are\nclearly admissible in evidence, they are ordinarily not conclusive on the pleader and may be\nexplained or rebutted in a subsequent civil case.\xe2\x80\x9d), Henry, 50 So. 2d at 923 (Pleading guilty to\nmanslaughter is only \xe2\x80\x9cslight evidence, or evidence merely that the killing has occurred.\xe2\x80\x9d), and\nMississippi manslaughter statutes which do not require willfulness, the Court ruled that Linda was\nnot prohibited from inheriting from her deceased husband\xe2\x80\x99s estate. Hood, 661 So.2d at 201.\nNumerous courts have held that an insane person would not be precluded by a slayer statute from\ninheriting from his or her victim, due to their mental condition at the time of the killing. See Estates of\nLadd, 91Cal. App.3d 219, 226, 153 Cal. Rptr. 888 (Ct. App. 1979)(Court held that a mother, who was\ninsane at the time she murdered her two sons, was not barred from inheriting her two sons\xe2\x80\x99 estates\nby statute, which provides that no person who has unlawfully and intentionally caused the death of a\ndecedent shall be entitled to succeed to any portion of estate or to take under any will of decedent,\nbecause insane persons are not capable of acting \xe2\x80\x9cintentionally.\xe2\x80\x9d); Hill v. Morris, 85 So.2d 847, 851\n(Fla. Sup. Ct. 1956)(\xe2\x80\x9cThe effect of the judgment of acquittal by reason of insanity was to establish\nconclusively that petitioner was not guilty of the public offense with which she was charged, because\nas a matter of criminal law she lacked the capacity to commit the crime.\xe2\x80\x9d Therefore, the court held\nthe insane widow was permitted to inherit from her deceased husband.); Turner v. Estate of Turner,\n454 N.E. 2d 1247, 1252 (Ind.Ct. App. 1983)(The court ruled that the equitable doctrine which\nsought to bar a person from profiting from his wrongful conduct had no application where an\ninsane person shot and killed his parents.); Ford v. Ford, 307 Md. 105, 122, 512 A.2d 389, 398 (1986)\n(The court held that the slayer\xe2\x80\x99s rule was not applicable when the killer was not criminally\nresponsible at the time he committed the homicide.); In re Vadlamudi Estate, 183 N.J. Super. 342, 443\nA.2d 1113 (1982) (An insane slayer was allowed to inherit from her husband\xe2\x80\x99s estate.); In re Wirth\xe2\x80\x99s\nEstate, 59 Misc.2d 300, 302-03, 298 N.Y.S.2d 565, 567-68 (Sur. 1969) (Court determined it was not\nagainst the state\xe2\x80\x99s public policy to permit someone who has killed \xe2\x80\x9cwhile insane subsequently to take\na share of the estate of the deceased or the proceeds of a policy of life insurance on the life of the\ndeceased of which the insane killer is beneficiary.\xe2\x80\x9d); In re Lupka\xe2\x80\x99s Estate, 56 Misc.2d 677, 289\nN.Y.S.2d 705 (Sue. 1968) (New York court held that a husband could take under his wife\xe2\x80\x99s will\nalthough the wife died from effects of assault by husband, where husband was mentally ill at time of\nassault.); Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563, 566 (1975) (Court\nprevented slayer statute\xe2\x80\x99s application in cases of involuntary manslaughter, justifiable or excusable\nhomicide, accidental killing or where the slayer was insane.); Hoffman\xe2\x80\x99s Estate, 39 Pa. D & C. 208,\n209-10 (1940)(Wife who killed her husband but found to be insane was entitled to share in her\nhusband\xe2\x80\x99s estate.); De Zotell v. Mutual Life Ins. Co., 60 S.D. 532, 245 N.W. 58, 65 (1932) (South\nDakota\xe2\x80\x99s slayer\xe2\x80\x99s rule requires that the killer be \xe2\x80\x9csane\xe2\x80\x9d for it to apply.); Simon v. Dibble, 380 S.W.2d\n898, 899 (Tex. Civ. App. 1964) (A Texas court determined the husband could inherit from the wife\n404\n\n\x0che killed because an insane person was not capable of willfully taking the life of another.); In re Estate\nof Mahoney, 126 Vt. 31, 220 A.2d 475 (1966)(Court determined slayer statute would not be applicable\nif the slayer was insane.).\nOther courts have held that the slayer rule is applicable, even if the killer was insane at the time of\nthe murder. See Dougherty v. Cole, 401 Ill. App.3d 341, 348, 343 Ill. Dec. 16, 934 N.E. 2d 16, 22 (Ill.\nApp. Ct. 2010) (The court determined that, although an individual was insane for criminal purposes,\nhe was nevertheless cognizant that he was killing a person; therefore, the Slayer Statute prevented\nthe killer from benefitting from his actions.); Osman v. Osman, 285 Va. 384, 73 S.E. 2d 876, 879\n(2013) (Virginia\xe2\x80\x99s slayer statute provides that in the absence of a conviction for murder or voluntary\nmanslaughter, \xe2\x80\x9ca slayer shall mean any person \xe2\x80\x98who is determined, whether before or after his death,\nby a court of appropriate jurisdiction by a preponderance of the evidence to have committed\n[murder or voluntary manslaughter].\xe2\x80\x99 \xe2\x80\x9d The court determined that the stipulated evidence \xe2\x80\x9cclearly\ndemonstrated that Osman intended to kill his mother; therefore, he should not be allowed to profit\nfrom his wrongdoing.\xe2\x80\x9d); In re Estate of Kissinger, 166 Wash. 2d 120, 122, 132, 206 P.3d 665, 666, 671\n(2009)(The court held that a not-guilty-by-reason-of-insanity verdict is not a complete defense to the\nslayer statute. \xe2\x80\x9cAn action under the slayer statute is civil, and the determination of whether a slaying\nwas willful and unlawful must be made in civil court notwithstanding the result of any criminal case.\nA finding of not guilty by reason of insanity does not make an otherwise unlawful act lawful.\xe2\x80\x9d The\ncourt determined that Hoge\xe2\x80\x99s actions were willful and unlawful when he killed his mother, and Hoge\nwas barred from recovering from his mother\xe2\x80\x99s estate.).\nIt is clear from well-established precedent that willful is synonymous with intentionally, knowingly,\ndeliberately, and purposely. In order for the Slayer Statute to apply to this case, John must have\nacted willfully in killing his mother. The record reveals that John has suffered from hallucinations\nand delusions for more than two decades. He has been diagnosed as a paranoid schizophrenic.\nJohn\xe2\x80\x99s thoughts are disorganized and very difficult to understand, and he often speaks in \xe2\x80\x9cword\nsalad,\xe2\x80\x9d which means that he uses words that are unrelated and disconnected. However, the record is\nsilent as to John\xe2\x80\x99s mental state at the time of the killing.\nIn this matter of first impression, this Court concludes that Mississippi should follow the majority of\nstates and holds that the Slayer Statute requires a finding of willful conduct to preclude a person from\ninheriting from his or her victim. Because an insane person lacks the requisite ability willfully to kill\nanother person, the Slayer Statute is not applicable in cases where the killer is determined to be\ninsane at the time of the killing.\n[T]he words used by Mr. Justice Nelson, when Chief Justice of New York, said that \xe2\x80\x9cselfdestruction by a fellow being bereft of reason can with no more propriety be ascribed to the act of\nhis own hand than to the deadly instrument that may have been used by him for the purpose,\xe2\x80\x9d\nand \xe2\x80\x9cwas no more his act, in the sense of the law, than if he had been impelled by irresistible\nphysical force.\xe2\x80\x9d\nGreat S. Life Ins. Co. v. Campbell, 148 Miss. 173, 114 So. 262, 263-64 (1927) (quoting Manhattan Life\nIns. Co. v. Broughton, 109 U.S. 121, 132, 3 S.Ct. 99, 105, 27 L.Ed. 878 (1883)).\nWhile this result is grounded in legal precedent, it may prove to be unsettling to some. However, it is\nnot the duty of this Court to determine public policy. If the law as it now exists is in need of change,\nthat task is for the Legislature.\n405\n\n\x0cCONCLUSION\nBased upon this Court\xe2\x80\x99s holding that the Slayer Statute requires a finding of willful conduct in order\nto preclude a person from inheriting from his or her victim, this judgment is reversed and the case is\nremanded for a hearing to determine John\xe2\x80\x99s mental status at the time of the murder and whether he\nwilfully caused Joan\xe2\x80\x99s death. The Slayer Statute will be applicable only if it is proven that, at the time\nof the murder, John\xe2\x80\x99s actions were willful. The chancellor is instructed that \xe2\x80\x9call evidence which will\nthrow any light on the issue of whether or not this killing was willful is competent and admissible.\xe2\x80\x9d\nHenry, 50 So. 2d at 923.\nReversed and remanded.\nNotes and Questions\n1. If a child kills his or her parent, that child cannot inherit from the deceased parent\xe2\x80\x99s estate.\nShould this barrier to inheritance be limited to murder? What if a child commits another crime\nagainst the parent like assault or financial exploitation? See Frances H. Foster, Towards a Behavior-Based\nModel of Inheritance?: The Chinese Experiment, 32 U.C. Davis L. Rev. 77 (Fall 1998).\n2. Should the ability to inherit be linked to the relationship between the parent and the child? If a\nchild mistreats or neglects a parent, should that child be permitted to inherit from that parent\xe2\x80\x99s\nestate?\n3. In deciding whether or not a person should be prohibited from inheriting from the person he or\nshe kills, the court must answer two main questions. First, the court must decide whether the slayer\nstatute applies to the situation. The slayer statute usually does not apply unless the case involves an\nintentional or reckless killing. In some jurisdictions, crimes like assisted suicide are exempted from\nthe slayer statute. Second, the court must decide whether the child has violated the statute. The\nstatute has been violated if the child has been convicted of an intentional or reckless killing.\nNonetheless, the child\xe2\x80\x99s acquittal does not preclude the probate court from concluding that the child\nhas violated the slayer statute. The probate court is not bound by the decision reached in the\ncriminal court and has the authority to conduct its own hearing to determine whether or not the\npersons has violated the statute. In the probate hearing, the standard of proof is preponderance of\nthe evidence as opposed to the beyond a reasonable doubt standard applied in criminal court. For\ninstance, O.J. Simpson was acquitted in a criminal court of killing his wife. However, the jury in the\ncivil court found him liable for the murder. In the slayer context, the child may be acquitted in\ncriminal court and found liable for the murder in the probate court. A finding of civil liability for the\nmurder may be sufficient for the probate court to find that the child has violated the slayer statute.\nSee Mary Louise Fellows, The Slayer Rule: Not Soley A Matter of Equity, 71 Iowa L. Rev. 489 (January\n1986); Tara L. Pehush, Maryland is Dying For a Slayer Statute: The Ineffectiveness of the Common Law Slayer\nRule in Maryland, 35 U. Balt. L. Rev. 271 (Winter 2005).\n4. What are the arguments for and against slayer statutes? What components should be included in a\nslayer statute?\n\n406\n\n\x0c5. From a public policy perspective, is the Van Der Veen case wrongfully decided? Consider the\nfollowing scenario. Madge is a wealthy woman who has one child, Samuel. Samuel and Madge do\nnot have good relationship. Samuel has one child, Brenda. Brenda is sick and having trouble paying\nher medical bills and other living expenses. Samuel asks Madge for money to help Brenda, and\nMadge refuses. Samuel kills Madge. As a slayer, Samuel is not permitted to inherit. However, as\nMadge\xe2\x80\x99s sole legal heir, Brenda gets to inherit the entire estate. Samuel does not care that he cannot\ninherit because his main concern is insuring that Brenda gets the money that she needs. Is there any\nway for the legislature to modify the slayer statute to discourage this type of behavior? See Karen J.\nSneddon, Should Cain\xe2\x80\x99s Children Inherit Abel\xe2\x80\x99s Property?: Wading into the Extended Slayer Rule Quagmire, 76\nUMKC L. Rev. 101 (Fall, 2007).\nProblems\n(a) William had a difficult time dealing with his son\xe2\x80\x99s death. William started drinking regularly. He\nwas arrested for DUI several times, and had the reputation of being the town drunk. On numerous\noccasions, William threatened to kill himself.\nOne night, Fred and his wife, Dana, had dinner with Fred\xe2\x80\x99s parents, Jennifer and William. William\nhad spent most of the day drinking. William and Jennifer got into a heated argument and William\nthreatened to kill himself. Fred, a police officer, went to his car and retrieved his service revolver.\nWhen he got back to the house, Fred handed the gun to William and said, \xe2\x80\x9cDon\xe2\x80\x99t just talk about it.\nMan up and do it.\xe2\x80\x9d\nFred and Dana watched in horror as William shot Jennifer in the head. Before, they could stop him\nWilliam shot himself in the stomach. William and Jennifer were rushed to the hospital. Jennifer was\npronounced dead on her arrival at the hospital. William died two days later. In their joint will,\nWilliam and Jennifer left all of their property to their children, Fred and Betty. The jurisdiction has a\nslayer statute. Should Fred be permitted to inherit from his parents? See Anne-Marie Rhodes,\nConsequences of Heirs Misconduct: Moving From Rules to Discretion, 33 Ohio N.U. L. Rev. 975 (2007).\n(b) Ninety-five year old Anita was suffering from high blood pressure and dementia. Gus, Anita\xe2\x80\x99s\nonly child, placed Anita in a long-term care facility. Since Anita was independently wealthy, she did\nnot qualify for government assistance. Therefore, Anita\xe2\x80\x99s monthly long-term care facility fee was\n$6,000. Gus was Anita\xe2\x80\x99s sole heir. He was afraid that her stay in the long-term care facility would\ndeplete all of her resources and prevent him from inheriting any money. Consequently, Gus\nremoved Anita from the long-term care facility and hired a nurse to care for her at his house. Anita\xe2\x80\x99s\ndoctors objected to the removal because they felt it was detrimental to Anita\xe2\x80\x99s health. Two months\nafter she was removed from the long-term care facility, Anita wandered off, fell into a brook and\ndrowned. The jurisdiction has a slayer statue. Should Gus be permitted to inherit from Anita?\n(c) Sixteen-year old Angelina started dating twenty-one year old Todd. Angelina\xe2\x80\x99s parents objected\nto the relationship and prohibited Angelina from seeing Todd. One night, Angelina waited in the car\nwhile Todd entered her house and killed both of her parents. Angelina claimed she did not know\nthat Todd planned to kill her parents. Todd was sentenced to life in prison. In exchange for her\ntestimony against Todd, Angelina was tried in juvenile court and detained in a juvenile facility until\nshe turned eighteen. The jurisdiction has a slayer statute. Should Angelina be permitted to inherit\n\n407\n\n\x0cfrom her parents? Mark Adam Silver, Vesting Title in a Murderer: Where is the Equity in the Georgia\nSupreme Court\xe2\x80\x99s Interpretation of the Slayer Statute in Levenson?, 45 Ga. L. Rev. 877 (Spring, 2011).\n(d) George\xe2\x80\x99s wife died leaving him to raise his ten-year-old son, Pedro. George\xe2\x80\x99s son acted out as a\nteenager. George blamed himself for not being around when the boy was young. When Pedro was\nfifteen years old, George executed a will leaving his entire estate to Pedro. George included the\nfollowing statement in his will. \xe2\x80\x9cI only want Pedro to inherit my property. I want him to have it no\nmatter what. Pedro is my only child. If the state got my property, I would be heart broken.\xe2\x80\x9d When\nhe turned sixteen, Pedro started smoking marijuana and hearing voices telling him that George was\nthe devil. One night, while George was sleeping, Pedro stabbed him to death. Pedro was George\xe2\x80\x99s\nsole living heir. If he does not inherit, the property will escheat to the state. The jurisdiction has a\nslayer statute. Should Pedro be permitted to inherit from George?\n(e) Leonard hired April to kill his mother. Leonard was convicted of conspiracy to commit murder\nand sentenced to twenty-five years in prison. The jurisdiction has a slayer statute that prevents\nLeonard from inheriting from his mother. Leonard was required to pay restitution to his siblings.\nAfter Leonard serves his time in prison, is it fair that he should be prohibited from inheriting from\nhis mother? Why? Why not?\n\n408\n\n\x0cChapter Nine: Testamentary Capacity (Mental Competency and Insane\nDelusion)\n9.1.\n\nIntroduction\n\nA probate attorney has two key roles: (1) to execute a will that carries out the testator\xe2\x80\x99s intent\nand (2) to create a will that is challenge-proof. Persons seeking to contest the probate of a will\nusually take two avenues\xe2\x80\x94they challenge the testator\xe2\x80\x99s capacity to execute the will and/or they\nchallenge the validity of the execution process. This chapter and Chapter 10 examine the ways in\nwhich the testator\xe2\x80\x99s ability to execute a legally enforceable will may be called into question. The cases\nin this chapter deal with the manner in which some defect in the testator may prevent him or her\nfrom being capable of executing a valid will. The cases in chapter 10 focus upon the way that the\nactions of other people may interfere with the testator\xe2\x80\x99s ability to execute a valid will. Chapter 11\nand Chapter 12 discuss will contests based upon the testator\xe2\x80\x99s failure to follow the execution\nprocess.\nAccording to the law in all states, in order to execute a will, a person must be at least 18\nyears old and of sound mind. The statutes do not include a definition of what it means for a person\nto be \xe2\x80\x9cof sound mind.\xe2\x80\x9d When evaluating the soundness of a person\xe2\x80\x99s mind, lay persons think in\npsychological terms. For example, if a person has been diagnosed with some type of mental illness,\nthe average person would say that person is not \xe2\x80\x9cof sound mind.\xe2\x80\x9d However, a mentally ill person\nmay be legally competent to execute a will.84 The level of mental competence necessary to execute a\nwill is very low compared to what is required to undertake other legal actions like executing a\ncontract, obtaining a marriage license or executing a deed to transfer title to a piece of property.85\nThe attorney who prepares the will and assists in the execution process has a duty to\ndetermine whether or not his or her client is legally \xe2\x80\x9cof sound mind.\xe2\x80\x9d Most attorneys have not been\ntrained to make psychological evaluations. Thus, in order to determine if a client has testamentary\ncapacity, an attorney must rely on the guidelines provided by the courts. In order to be deemed to\nhave testamentary capacity, at the time that the will is executed, the testator must know the\nfollowing: (1) the nature and extent of his or her property; (2) the persons who are the natural\nobjects of his or her body; (3) the disposition he or she is making; and (4) the manner in which these\nfacts related so far as to form an orderly plan for the disposition of his or her property. The attorney\nshould take steps during the initial client interview to determine if his or her client can satisfy the\ntestamentary capacity test.\nOnce an attorney concludes that his or her client can satisfy the mental capacity test, that\nmay not be the end of the story. The client may do or say something to lead the attorney to believe\nthat the client is suffering from a misconception that could hamper his or her ability to create a will.\nThe insane delusion test is a two part test. The court first has to decide whether or not the testator\nwas suffering from an insane delusion when the will was executed. Then, the court has to determine\nwhether the dispositions the person made were a result of that delusion.86 A delusion is insane even\nMatter of Gentry\xe2\x80\x99s Estate, 573 P.2d 322 (Or. App. 1978); Briggs v. Kreutztrager, 433 S.W.3d 355 (Ky. App. 2014).\nDenson v. Moses, 2 So. 3d 847 (Ala. App. 2008).\n86\nBreeden v. Stone, 992 P.2d 1167, 1171 (Colo. 2000).\n84\n85\n\n409\n\n\x0cif there is some factual basis for the belief if a reasonable person in the testator\xe2\x80\x99s situation would not\nhave drawn the conclusion reached by the testator. An insane delusion is different from a mistaken\nbelief. An insane delusion is a belief not susceptible to correction by presenting the testator with\nevidence indicating the falsity of the belief. In this situation, a testator will refuse to believe the\nevidence that shows that he or she is wrong.87 Consider this example. T believes that all cats are\nblack. T\xe2\x80\x99s daughter shows him a white cat. T responds by telling his daughter that the animal she\nshowed him could not be a cat because it is not black. On the other hand, a belief is a mistake if it is\nsusceptible to correction if the testator is told the truth. Thus, if the testator\xe2\x80\x99s had responded to his\ndaughter\xe2\x80\x99s actions by saying something like, \xe2\x80\x9cI never knew that white cats existed. Now I do.\xe2\x80\x9d\nAs the next few cases illustrate, contestants seldom rely on testamentary capacity alone when\nseeking to have a will invalidated. This is the case because it is almost impossible to prove that a\ntestator failed to meet the minimum capacity requirement. Thus, the argument is usually that the\nperson\xe2\x80\x99s testamentary capacity was adversely impacted by other factors including insane delusion,\nfraud and undue influence.\n9.2\n\nTestamentary Capacity\n\nIn re Estate of Romero, 126 P.3d 228 (Colo. App. 2005)\nHAWTHORNE, J.\nIn this formal testacy proceeding as to the estate of Robert Ramon Romero (decedent), decedent\xe2\x80\x99s\nchildren, Barbara A. Romero and Robert Ross Romero (contestants), appeal the probate court\xe2\x80\x99s\njudgment denying their petition for adjudication of intestacy. Decedent\xe2\x80\x99s sister, Dolores G. Vasquez,\nas devisee, opposed the petition. We affirm.\nThis case involves a contested probate of a formal will executed by decedent. The will named\ndecedent\xe2\x80\x99s mother as personal representative and his sister as the successor personal representative.\nDecedent devised a gift of $500 to each of his children and left the remainder of his estate to his\nmother and sister in equal shares, with a provision that if either his mother or sister predeceased\nhim, the remaining beneficiary would take the entire remainder. Because decedent\xe2\x80\x99s mother\npredeceased him, his sister was left as the sole beneficiary of the residuary estate.\nContestants filed objections, claiming that decedent did not have the testamentary capacity to\nexecute a will. In support of their assertions, they relied primarily on the uncontested facts that\ndecedent suffered from mental illness and that he had been a protected person under a Veterans\nAdministration (VA) guardianship over his financial affairs.\nA hearing was held on the petition for formal probate. Contestants presented, inter alia, expert\nwitness testimony from the physician who treated decedent for schizophrenia. While this physician\ntestified that decedent suffered from auditory hallucinations, the physician was unable to connect\nthem with execution of decedent\xe2\x80\x99s will and, moreover, saw decedent for only a few minutes on three\noccasions during the eighteen months prior to the signing of the will. The probate court accordingly\n87\n\nIn re Millar\xe2\x80\x99s Estate, 207 P.2d 483, 487 (Kan. 1949).\n\n410\n\n\x0cdiscounted his testimony.\nInstead, the probate court credited the testimony of the attorney who prepared the will, because it\nfound him to be the only individual with personal knowledge of decedent\xe2\x80\x99s testamentary capacity\nwhen the will was executed. The attorney testified that he met with decedent on four separate\noccasions, including one visit to decedent\xe2\x80\x99s home. He testified that although decedent\xe2\x80\x99s mother\ntransported decedent to and from the attorney\xe2\x80\x99s office, she was present neither during his\nconversations with decedent nor during the actual execution of the will, but remained in the office\nwaiting area. He further testified that decedent expressed his desire to leave his entire estate to his\nmother and his sister because of his minimal contact with his children and in return for all the love\nand support he had received from his mother and sister over the years. The attorney also testified\nthat it was only upon his suggestion that decedent made a small bequest to his children to\ndemonstrate that his exclusion of them as primary beneficiaries was intentional. He further testified\nthat he had \xe2\x80\x9cno doubt in his mind\xe2\x80\x9d when the will was executed that decedent fully understood the\nconsequences of his action.\nAfter considering all the evidence, the probate court found that contestants did not prove by a\npreponderance of the evidence that decedent was not of sound mind when he executed his will. The\ncourt held that neither the evidence of mental illness nor the mere existence of a VA guardianship\nwas sufficient, in and of itself, to prove lack of testamentary capacity. It further found that\ndecedent\xe2\x80\x99s sister had provided ample evidence that the will was a voluntary act and was not the\nproduct of undue influence. Accordingly, it granted the petition to admit the will to formal probate\nand to appoint decedent\xe2\x80\x99s sister as the personal representative of the estate in unsupervised\nadministration.\nI.\nContestants first contend that the probate court erred in failing to conclude that the will was invalid\nbecause decedent lacked testamentary capacity. We disagree.\nA person has testamentary capacity if he or she is an \xe2\x80\x9cindividual eighteen or more years of age who\nis of sound mind.\xe2\x80\x9d Section 15-11-501, C.R.S. 2004. A testator\xe2\x80\x99s soundness of mind may be evaluated\nunder either the test set forth in Cunningham v. Stender, 127 Colo. 293, 255 P.2d 977 (1953), or the\ninsane delusion test. See Breeden v. Stone, 992 P.2d 1167 (Colo.2000).\nUnder the Cunningham test, a person has testamentary capacity when the person (1) understands the\nnature of the act, (2) knows the extent of his or her property, (3) understands the proposed\ntestamentary disposition, and (4) knows the natural objects of his or her bounty, and (5) the will\nrepresents the person\xe2\x80\x99s wishes. Cunningham v. Stender, supra. An individual lacks testamentary capacity\nunder the insane delusion test when he or she suffers from an insane delusion that materially affects\nthe disposition of the will. Breeden v. Stone, supra.\nOnce a proponent of a will has offered prima facie proof that the will was duly executed, any\ncontestant has the burden of establishing lack of testamentary intent or capacity, undue influence,\nfraud, duress, mistake, or revocation by a preponderance of the evidence. Section 15-12-407, C.R.S.\n2004; Breeden, supra, 992 P.2d 1170.\nA.\n411\n\n\x0cContestants maintain that the facts demonstrated that decedent did not know the extent of his\nproperty and therefore lacked testamentary capacity testamentary capacity under that prong of the\nCunningham test. We are not persuaded.\nA finding of fact will not be set aside on appeal unless it is clearly erroneous. C.R.C.P. 52; In re\nEstate of Gallavan, 89 P.3d 521, 523 (Colo.App.2004) (probate court\xe2\x80\x99s findings under Cunningham and\nthe insane delusion test will not be set aside if there is evidence in the record to support them).\nEvaluation of the credibility of witnesses, including expert witnesses, is a matter solely within the\nfact finding province of the trial court, and we will not reweigh testimony or reevaluate evidence on\nappeal. See CF & I Steel, L.P. v. Air Pollution Control Div., 77 P.3d 933, 937 (Colo.App.2003).\nThe appointment of a conservator or guardian is not a determination of testamentary incapacity of\nthe protected person. Section 15-14-409(4), C.R.S.2004.\nThere is scant Colorado case law detailing what specific knowledge is required for a testator to be\ndeemed to know the extent of his or her property. However, the cases which touch upon this issue,\nincluding Cunningham itself, indicate that it is sufficient that a testator comprehend the \xe2\x80\x9ckind and\ncharacter of his [or her] property\xe2\x80\x9d or understand, generally, the nature and extent of the property to\nbe bequeathed. Cunningham, supra, 127 Colo. at 300, 255 P.2d at 981 (other citations omitted).\nIn other words, \xe2\x80\x9cA perfect memory is not an element of testamentary capacity. A testator may\nforget the existence of part of his estate ... and yet make a valid will.\xe2\x80\x9d 1 Page on Wills \xc2\xa7 12.22\n(rev.2003).\n1 Page on Wills, supra, \xc2\xa7 12.22. Therefore, \xe2\x80\x9c[t]he fact that [the] testator believes that the residue of his\nestate is of little value, when it is, in fact, more than two-thirds of his estate,\xe2\x80\x9d does not show lack of\ncapacity. 1 Page on Wills, supra, \xc2\xa7 12.22.\nAn ability to index the major categories of property constituting an individual\xe2\x80\x99s estate was found\nsufficient to establish testamentary capacity in Breeden, supra, 992 P.2d at 1173. This holding is\nconsistent with the approach taken by courts in other jurisdictions with similar tests for testamentary\ncapacity. See Rich v. Rich, 615 S.W.2d 795, 797 (Tex.Civ.App.1980)(holding that a finding of\ntestamentary capacity does not require proof that \xe2\x80\x9cthe testator knew the \xe2\x80\x98true value of his property\xe2\x80\x9d\n\xe2\x80\x99); Prichard v. Prichard, 135 W.Va. 767, 772, 65 S.E.2d 65, 68 (1951)(holding that to have the capacity\nto make a will, the testator must know his property, but \xe2\x80\x9cit is not necessary that he know every item\nof his property or the value of his estate,\xe2\x80\x9d and \xe2\x80\x9c[i]t is sufficient if he knows of what his property\nconsists\xe2\x80\x9d).\nHere, the probate court found that decedent understood that his assets comprised the accumulation\nof whatever amounts were left over from his VA and social security benefits after his living expenses\nhad been deducted. The probate court concluded that decedent\xe2\x80\x99s failure to know the actual amount\nof money in his VA account was not surprising or fatal, given that the VA\xe2\x80\x99s routine practice was not\nto inform its wards how much money they had in their VA accounts, to protect the wards from\nexploitation. Further, the court found that the relative size of the estate was not a motivating factor\nin decedent\xe2\x80\x99s decision to leave his estate to his mother and sister, as decedent\xe2\x80\x99s attorney testified that\ndecedent\xe2\x80\x99s original intent was to preclude his children from taking any of his estate at all.\n412\n\n\x0cUnder these circumstances, we agree with the probate court that decedent\xe2\x80\x99s lack of knowledge of\nthe actual value of his estate did not affect his testamentary capacity.\nB.\nContestants next contend that the probate court erred in concluding that decedent did not have an\ninsane delusion regarding the amount of his estate. Specifically, they argue that decedent had an\ninsane delusion that his estate would be minimal or nominal and that if he had realized the actual\nvalue, he would have left a larger bequest to them. We conclude there was no error.\nAn insane delusion is a persistent belief in something that has no existence in fact, which belief is\nadhered to in spite of all evidence to the contrary. Breeden v. Stone, supra, 992 P.2d at 1171. The\ncontestant bears the burden of proving that the testator suffered from an insane delusion, that he\nwas under such a delusion at the time of making his will, that the insane delusion materially affected\nthe disposition made in the will, and that the will was the product of the insane delusion. Breeden,\nsupra, 992 P.2d at 1171.\nThe evidence before the probate court was that decedent\xe2\x80\x99s estate was valued at approximately\n$90,000 when the will was executed and approximately $450,000 at decedent\xe2\x80\x99s death. His attorney\ntestified that while decedent could not articulate the value of his assets, he expressed an\nunderstanding that his assets came from his VA benefits, that his VA guardian allocated him enough\nmoney to meet his personal needs and to pay for his living expenses, and that his estate would\nconsist of the money left over in his accounts under VA supervision after his expenses were met.\nMoreover, his attorney testified that because he was familiar with the management of VA\nguardianship accounts, he did not press decedent about the value of the estate. While the attorney\ndescribed decedent\xe2\x80\x99s account as nominal, this was his own assessment rather than a quote from\ndecedent.\nA field examiner for the VA testified that although a VA guardian is required to file an annual\naccounting with the court and with the VA, veterans would not usually be in a position to know the\nexact value of their estates because they were not furnished copies of their annual accounts. If\nveterans inquired, they were told they could get a copy of their accountings at the court where the\ndocumentation was filed.\nThe probate court concluded that it was not surprising that decedent did not know the value of his\nestate, given his apparent satisfaction with the money-handling arrangement and the lack of\ndocumentation as to the dollar amount of his VA account. Moreover, the probate court specifically\ncredited the attorney\xe2\x80\x99s testimony that decedent was not motivated by the comparative size of the\namounts passing to his children and to his mother and sister.\nThe probate court\xe2\x80\x99s findings are supported by the record, and under these circumstances, we\nconclude there was no error.\nC.\nContestants maintain that the probate court erred in finding decedent had testamentary capacity in\nlight of the VA guardianship. Specifically, they assert that because of his VA guardianship, decedent\nwas found unable to enter into any contracts and that as such, he had no testamentary capacity. We\n413\n\n\x0cdisagree.\nIn support of their argument, contestants point to a VA regulation that defines a mentally\nincompetent individual subject to guardianship as one who \xe2\x80\x9clacks the mental testamentary capacity\nto contract or to manage his or her own affairs, including disbursement of funds without limitation.\xe2\x80\x9d\n38 C.F.R. \xc2\xa7 3.353(a).\nThe VA regulations, however, specifically provide that \xe2\x80\x9c[l]ack of testamentary capacity should not be\nconfused with ... mental incompetence.\xe2\x80\x9d 38 C.F.R. \xc2\xa7 3.353(c). The regulations provide that there is a\ngeneral but rebuttable presumption that every testator possessed testamentary capacity and\nreasonable doubts should be resolved in favor of testamentary capacity. The regulations also provide\na test for testamentary capacity similar to the test utilized in Colorado, including a requirement \xe2\x80\x9cthat\nthe testator reasonably comprehend the nature and significance of his act, that is, the subject and\nextent of his disposition, recognition of the object of his bounty, and appreciation of the\nconsequence of his act, uninfluenced by any material delusion as to the property or person\ninvolved.\xe2\x80\x9d 38 C.F.R. \xc2\xa7 3.353(a).\nHere, a VA field administrator testified that the VA rating of incompetency meant that decedent was\nincompetent only as to the handling of his VA disability funds and did not mean he was\nincapacitated as to other matters. The field administrator further testified that a veteran, even if\nincompetent to handle VA funds, could still enter into contracts similar to wills by naming insurance\nbeneficiaries and that, in fact, the VA had accepted such a designation from decedent. Accordingly,\nthe VA had found decedent to have testamentary capacity, despite his VA guardianship, under a test\nsimilar to the test established in Colorado.\nWe also note that the supreme court has held \xe2\x80\x9cthat contractual capacity and testamentary capacity\nare the same.\xe2\x80\x9d Breeden v. Stone, supra, 992 P.2d at 1170 (citing Hanks v. McNeil Coal Corp., 114 Colo.\n578, 168 P.2d 256 (1946)).\nSection 15-14-409(4), C.R.S. 2004, specifically provides that the appointment of a conservator or the\nentry of another protective order is not a determination of the testamentary capacity of the\nprotected person. Moreover, \xc2\xa7 28-5-219, C.R.S. 2004, 2004, provides that neither the fact that a\nperson has been rated incompetent by the VA nor the fact that a guardian has been appointed for\nthe person shall be construed as a legal adjudication of insanity or mental incompetency. Thus,\nColorado statutes explicitly state that the findings that warrant appointment of a guardian or\nconservator do not equate to a determination of testamentary incapacity. In re Estate of Gallavan,\nsupra, 89 P.3d at 523.\nGiven the statutory framework and the record in this matter, we conclude that the probate court did\nnot err in finding that decedent had testamentary capacity in spite of his VA guardianship.\nThe judgment is affirmed.\nNotes, Problems, and Questions\n1. A person is presumed to possess testamentary capacity. This presumption stems from the fact\nthat courts disfavor intestacy. Since a person is presumed competent to execute a will, the one who\n414\n\n\x0ccontests the will has the burden of showing that the testator was incompetent when he or she\nexecuted the will. The existence of a conservatorship or a guardianship does not create the\npresumption that the protected person lacks testamentary capacity.\n2. Sophia hired a lawyer to execute her will. When she filled out the will questionnaire, Sophia\nincluded the Golden Gate Bridge as one of her assets. Does this indicate that she lacks testamentary\ncapacity?\n3. Madge told the lawyer drafting her will that she had three children, five grandchildren and one\ngreat-grandchild. In fact, Madge has only two grandchildren and no great-grandchildren. Does this\nindicate that she lacks testamentary capacity?\n4. In the Romero case, what evidence did the contestants present to support their claimed that the\ntestator lacked testamentary capacity? Why did the court hold that Romero had the necessary\ncapacity? Why did they argue that Romero was suffering from an insane delusion?\n5. In the Romero case, what was the test for testamentary capacity under the VA regulations? Would\nthe outcome of the case have been the same if the court had applied that test?\n6. Why did the Romero court determine that the fact that a guardian had been appointed for Romero\ndid not impact his testamentary capacity? Do you agree with that determination?\n\nMatter of Estate of Oliver, 934 P.2d 144 (Kan. App. 1997)\nGERNON, Presiding Judge:\nThis is a will contest case. The contestants, Lenard and Charlene Miller, appeal the trial court\xe2\x80\x99s\ndecision to admit the will of Alta E. Oliver into probate.\nOliver died in 1993 at the age of 93, leaving an estate of approximately $400,000. She was survived\nby a sister and several nieces and nephews.\nThe Millers were friends with Oliver. From 1978 until her death, Oliver wrote several different wills,\nleaving the Millers as beneficiaries in each, but in varying degrees.\nIn 1985, the Millers took Oliver to her attorney, Raymond Stein, and she executed a will which made\nthe Millers the principal beneficiaries.\nIn 1988, a guardian and a conservator were appointed for Oliver. She also entered a nursing home\nthat fall.\nIn November 1988, several of Oliver\xe2\x80\x99s relatives, including her sister, visited her and tape recorded\ntheir conversation with her. The substance of the conversation was to advise Oliver that she had\ngiven Lenard Miller control of her estate and to urge her to see her lawyer to check her estate plan.\nOne nephew, Charles Albert, subsequently asked Guy Steier, Oliver\xe2\x80\x99s guardian ad litem, to meet\n415\n\n\x0cwith Oliver because he felt she wanted more input into her personal affairs. Steier met with Oliver in\nJanuary 1989. Steier testified that Oliver seemed surprised she had so much money in various\naccounts. He testified that at that time, she expressed reservations about the amounts the Millers\nwould receive under the will. She stated, according to Steier, that she wanted more input as to how\nher affairs were being handled.\nSteier contacted the local mental health center and requested an evaluation of Oliver. A hearing on a\npetition for restoration of capacity was held, at which time the results of the evaluation were\npresented. The magistrate judge found that Oliver was a disabled person and ordered the\nguardianship and conservatorship to continue. The magistrate made no ruling as to her testamentary\ncapacity. Oliver\xe2\x80\x99s niece, Charlene Rupe, was appointed guardian, and a bank was appointed as\nconservator.\nIn June 1989, Rupe and two other nieces took Oliver to the bank where her certificates of deposit\nnaming the Millers as the payable on death recipients were located. A bank teller, Peg Kenningsman,\ntestified that Oliver informed her she wanted to change the beneficiaries on her certificates of\ndeposit. Kenningsman testified that Oliver did not talk with her nieces while at the bank and never\nwavered in her request. Kenningsman testified that Oliver appeared to know what she was doing.\nThat same day, the nieces took Oliver to see Steier. Steier met with Oliver in private. The 1985 will\nwas reviewed in detail, and Oliver, according to Steier, made very specific and knowledgeable\nchanges to the will.\nTwo days later, Steier again met with Oliver. They reviewed the will, and Oliver made a change in\none of the clauses.\nOn June 30, 1989, Steier and two of his employees, Janet Holway and Marilyn Huffman, went to see\nOliver at the nursing home with the final draft of the will. When they arrived, Oliver was playing\ncards and Steier noted that her cards were properly organized and she was playing the correct meld.\nAfter she finished playing the hand, they went to her room and reviewed the 1985 will and the new\none. Steier stated that Oliver knew her family, her land, and where her bank certificates and accounts\nwere generally located, but she was not sure how much money was in the accounts. When Steier\nsuggested $190,000, Oliver was still not sure about the amount but stated that she trusted him.\nOliver executed the will in the presence of Steier, Holway, and Huffman. Steier and Holway signed\nas witnesses, and Huffman notarized the document.\nSteier testified that in his opinion, Oliver possessed testamentary capacity at that time and was not\nunder undue influence. Holway also testified that in her opinion, Oliver knew who her relatives\nwere, what her assets were, and why they were present in her room on June 30, 1989.\nThe 1989 will was submitted for probate. The Millers contested the validity of the 1989 will,\nclaiming that Oliver lacked testamentary capacity at the time the will was executed.\nCan a conservatee make testamentary decisions?\nThe Millers first argue that since Oliver was a disabled person under K.S.A. 59-3002(a) and had a\nguardian and conservator involuntarily appointed for her, she lacked the required capacity to execute\nthe 1989 will and to change the beneficiaries on her payable on death certificates of deposit. They\n416\n\n\x0cmaintain the trial court erred in finding that Oliver was competent to execute her 1989 will and\nmake the changes to her certificates of deposit because an involuntary conservatee cannot make\ntestamentary dispositions.\nThe Millers\xe2\x80\x99 contention raises a question of law over which this court has unlimited review. See\nHillman v. Colonial Penn. Ins. Co., 19 Kan.App.2d 375, 376, 869 P.2d 248, rev. denied 255 Kan. 1001\n(1994).\nWhile it is true that most of our decisions on this issue have arisen in the context of a voluntary\nconservatorship, see, e.g., Campbell v. Black, 17 Kan.App.2d 799, 844 P.2d 759 (1993), our courts\ncontinue to adhere to the principle that being under a guardianship or conservatorship does not\nprevent one from making testamentary dispositions. As noted in Citizens State Bank & Trust Co. v.\nNolte, 226 Kan. 443, 449, 601 P.2d 1110 (1979), the conservator\xe2\x80\x99s purpose \xe2\x80\x9cis to manage the estate\nduring the conservatee\xe2\x80\x99s lifetime. It is not his function, nor that of the probate court supervising the\nconservatorship, to control disposition of the conservatee\xe2\x80\x99s property after death.\xe2\x80\x9d\nIn In re Estate of Raney, 247 Kan. 359, 799 P.2d 986 (1990), the decedent\xe2\x80\x99s children sought and\nobtained a conservatorship for him against his wishes. The decedent believed his children imposed\nthe conservatorship in order to preserve his estate for themselves and subsequently executed a will\nwhile under the conservatorship. The trial court refused to admit the will to probate, finding that the\ndecedent lacked testamentary capacity to make the will because he suffered from insane delusions.\nThe Supreme Court reversed on the basis that the trial court\xe2\x80\x99s finding was not supported by the\nevidence. 247 Kan. At 375, 799 P2d 986. In reaching its holding, the court noted:\n\xe2\x80\x9cThe trial court recognized that being under a guardianship and conservatorship does not\nnecessarily deprive one of the power to make a will. Incompetency to transact business is not the\nequivalent of insanity and does not mean that the testator lacks testamentary capacity. Previously,\nthis court concluded that an aged person who was \xe2\x80\x98 \xe2\x80\x9cfeeble-minded and incapable of managing his\naffairs\xe2\x80\x9d \xe2\x80\x99 and who needed a guardian could, three weeks later, be competent to make a will. In re\nEstate of Hall, 165 Kan. 465, 469, 195 P.2d 612 (1948) (quoting Mingle v, Hubbard, 131 Kan. 844,\n293 Pac. 513 [1930]). In Hall, the court stated: \xe2\x80\x98It is practically a universal rule that the mere fact\nthat one is under guardianship does not deprive him of the power to make a will.\xe2\x80\x99 165 Kan. 465 at\n469, 195 P.2d 612 (citing Annot., 8 A.L.R. 1375).\xe2\x80\x9d 247 Kan. at 367-68, 799 P.2d 986.\nWe conclude that a conservatee, whether voluntary or involuntary, clearly retains the right to decide\nhow his or her property is to be distributed upon death. See In re Estate of Perkins, 210 Kan. 619,\n626-27, 504 P.2d 564 (1972); In re Estate of Briley, 16 Kan.App.2d 546, 549, 825 P.2d 1181 (1992).\nThis right includes the power to change beneficiaries on payable on death accounts as well as make\nwills. See In re Estate of Raney, 247 Kan. at 367-68, 799 P.2d 986; Campbell v. Black, 17 Kan.App.2d at\n802-03, 844 P.2d 759. \xe2\x80\x9cAs long as the requisite mental capacity exists, a person has the power to\ndispose of the property as he wishes, and this power should not be interfered with by the court.\xe2\x80\x9d In\nre Estate of Raney, 247 Kan. at 367, 799 P.2d 986. Consequently, if, as in this case, Oliver possessed\ntestamentary capacity testamentary capacity at the time she executed her will and made the changes\nto her payable on death certificates of deposit, the distributions are valid.\nBurden of Proof\nThe Millers next assert that there is a presumption of testamentary incapacity for any ward or\n417\n\n\x0cconservatee. We disagree.\nIt is well established in Kansas that once it has been shown that \xe2\x80\x9ca will has been executed in\naccordance with the formalities required by law, the burden is upon the will contestant and he must\nproduce evidence to support his position.\xe2\x80\x9d In re Estate of Perkins, 210 Kan. at 626, 504 P.2d 564.\nThe cases cited by the Millers involve individuals who have been adjudicated mentally incompetent\nor insane. Here, the record does not support an assertion that Oliver\xe2\x80\x99s mental condition was so\ndiminished as to render her insane or mentally incompetent.\nOther jurisdictions hold the fact that an individual has been adjudicated incompetent at a guardian\nproceeding does not mean he or she cannot execute a will. These courts note that this fact is merely\nevidence to be considered when determining testamentary capacity and the proponent does not\ncarry a higher burden of proof on this issue. See, e.g., Paskvan v. Mesich, 455 P.2d 229, 238-39 (Alaska\n1969); In re Estate of Basich, 79 Ill.App.3d 997, 1001, 35 Ill. Dec. 232, 398 N.E.2d 1182 (1979); see\nalso Annot., 89 A.L.R.2d 1120.Other courts point out that a guardianship and conservatorship can\nbe based on a variety of reasons other than for complete mental incompetency, such as age, which\ndo not necessarily affect an individual\xe2\x80\x99s testamentary capacity. See, e.g., Estate of Dopkins, 34 Cal.2d\n568, 578, 212 P.2d 886)1049); In re Bottger\xe2\x80\x99s Estate, 14 Wash.2d 676, 697, 129 P.2d 518 (1943); see also\nAnnot., 89 A.L.R.2d 1120, 1130.\nBased on the above reasoning, we conclude the burden of proof on the issue of testamentary\ncapacity does not change in those instances where a testator is involuntarily appointed a conservator\nor guardian.\nTestamentary Capacity\nThe Millers contend the trial court\xe2\x80\x99s findings that Oliver possessed testamentary capacity when she\nchanged her payable on death certificates and when she executed her will are not supported by the\nevidence.\nWhen reviewing the trial court\xe2\x80\x99s findings, this court must determine whether substantial competent\nevidence exists to support the court\xe2\x80\x99s findings and will not reweigh conflicting evidence. In re Estate\nof Bolinder, 19 Kan.App.2d 72, 74, 864 P.2d 228, rev. denied 254 Kan. 1007 (1994).\nA testator must have testamentary capacity to make a will. In Kansas, the requirements for\ndetermining testamentary capacity are well settled:\n\xe2\x80\x9cIt is the established rule in Kansas, the deceased possesses testamentary capacity if, on the date\nhe executes the instrument which determines the manner in which the property will be disposed\nafter death, he knows and understands the nature and extent of that property, has an intelligent\nunderstanding concerning the disposition he desires to make of it, realizes who his relatives are\nand the natural objects of his bounty, and comprehends the nature of the claims of those whom\nhe desires to include and exclude in and from participation in his worldly effects after he has no\nfurther need for them.\xe2\x80\x9d In re Estate of Ziegelmeier, 224 Kan. 617, 621, 585 P.2d 974 (1978).\nSee In re Estate of Raney, 247 Kan. at 367, 799 P.2d 986; In re Estate of Bolinder, 19 Kan.App.2d at 75,\n864 P.2d 228. The critical time in determining testamentary capacity is when the will is made and\n418\n\n\x0cexecuted. All other evidence concerning the testator\xe2\x80\x99s mental capacity before or after the time of\nexecution is only an aid in deciding the issue. In re Estates of Barnes, 218 Kan. 275, 281, 543 P.2d 1004\n(1975).\n\xe2\x80\x9cThe test of a testamentary capacity is not whether a person has capacity to enter into a complex\ncontract or to engage in intricate business transactions nor is absolute soundness of mind the real\ntest of such capacity. The established rule is that one who is able to understand what property he\nhas, how he wants it to go at his death and who are the natural objects of his bounty is competent\nto make a will even though he may be feeble in mind and decrepit in body.\xe2\x80\x9d In re Estate of Perkins,\n210 Kan. at 626, 504 P.2d 564.\nThe Millers refer to various instances before and after the dates in question as support for their\ncontention that Oliver lacked testamentary capacity. They further point out that Oliver suffered\nfrom degenerative dementia and did not know the exact amount of money in her bank accounts at\nthe time she executed her will.\nThe mere fact that a person suffers from senile dementia does not mean that person lacks\ntestamentary capacity. In re Estate of Brown, 230 Kan. 726, 730, 640 P.2d 1250 (1982). Here, Steier, the\nattorney who drafted the will, and two of his employees were present when Oliver executed the will.\nSteier testified that Oliver reviewed the will before signing it and knew to whom she wanted her\nproperty to go at her death. While Oliver was not positive of the exact amount of her cash assets,\nshe listed her relatives and extensively discussed her personal and real property with Steier. It is\napparent from Steier\xe2\x80\x99s and Holway\xe2\x80\x99s testimony that Oliver knew the general nature of her property\nand how she wanted it distributed when she signed the will.\nUnder the circumstances in this case, the trial court\xe2\x80\x99s findings that Oliver had testamentary capacity\nto make the will and to make changes to her certificates of deposit are supported by substantial\ncompetent evidence.\nOur examination of the specific claims made by the Millers leads us to the same conclusion as that\nof the trial judge.\nAffirmed.\nNotes, Problems, and Questions\n1. The only testamentary capacity that is relevant is the capacity that the testator has at the time the\nwill is executed. Therefore, someone with a condition that permits them to have lucid periods may\nbe legally competent to execute a will.\n2. Consider the following problem. Tony takes medicine for a chronic illness. One side effect of the\nmedicine is that Tony has hallucinations. The side effects last for about two hours after Tony takes\nthe medicine. Tony takes the medicine every morning at about nine. One of the main hallucinations\nthat Tony has is that his daughter, Barbara, is really his mother, Claire. Tony\xe2\x80\x99s mother has been dead\nfor about twenty-years and they had a strained relationship. One morning, Tony contacted his\nlawyer and stated that he wanted to change his will so that his mother would not inherit any of his\n419\n\n\x0cestate. In response, Tony\xe2\x80\x99s lawyer came to his house at about two o\xe2\x80\x99clock in the afternoon. At that\ntime, Tony amended his will and left all of his property to his wife, Jean, and his son, Amos. The\nprior will had split the estate between Jean, Amos and Barbara. When Tony died, Barbara filed an\naction contesting the will. What is Barbara\xe2\x80\x99s strongest argument? What are her chances of getting the\nwill set aside?\n3. In the Oliver case, why did the contestants claim that the testator lacked testamentary capacity?\nWhat evidence did the lawyer who drafted the will put forth present to rebut their contention?\n\nPaine v. Sullivan, 950 N.E.2d 874 (Mass. App. 2011)\nHANLON, J.\nValerie E. Sullivan (Valerie) appeals from the decision of a Probate and Family Court judge\nconcluding that the testator, John L. Sullivan (John), possessed testamentary capacity when he\nexecuted his last will and testament on June 26, 2004 (will), and also that the will was not the\nproduct of undue influence. We agree that the will was not the product of undue influence, but we\nhold that the petitioner, Susan W. Paine, did not meet her burden of proving the testator had\ntestamentary capacity.\nIn reviewing issues of testamentary capacity and undue influence, \xe2\x80\x9c[i]t is our obligation to review the\nevidence and reach a decision in accordance with our own reasoning and understanding, giving due\nweight to the findings of the trial judge, which we will not reverse unless they are plainly wrong, and\nfinding for ourselves any additional facts we believe to be justified by the evidence.\xe2\x80\x9d Palmer v. Palmer,\n23 Mass.App.Ct. 245, 249-250, 500 N.E.2d 1354 (1986), quoting from Olsson v. Waite, 373 Mass. 517,\n520, 368 N.E.2d 1194 (1977). The question, however, \xe2\x80\x9cis not what finding we ourselves would have\nmade on the same evidence,\xe2\x80\x9d but whether we can say the finding of \xe2\x80\x9ccompetence was plainly\nwrong.\xe2\x80\x9d Goddard v. Dupree, 322 Mass. 247, 248, 76 N.E.2d 643 (1948). A finding is not \xe2\x80\x9cplainly\nwrong\xe2\x80\x9d unless \xe2\x80\x9cthe evidence, with every reasonable inference which can be drawn from it, is\ninsufficient to warrant the findings.\xe2\x80\x9d Erb v. Lee, 13 Mass.App.Ct. 120, 124, 430 N.E.2d 869 (1982).\nWith these standards in mind, we set forth the facts in some detail. Maimonides Sch. v. Coles, 71\nMass.App.Ct. 240, 242, 881 N.E.2d 778 (2008). John was born in May, 1912, and met his wife,\nOdette, in France when he was stationed there. They married in 1956 and enjoyed a forty-seven-year\nmarriage before Odette died on July 23, 2004, of melanoma. John died in 2006. The couple had no\nchildren of their own; they adopted Odette\xe2\x80\x99s sister\xe2\x80\x99s daughters, Annabelle and Valerie. Annabelle\nhad a falling-out with Odette and John in 1995; she left the home in 1995 and never reconciled with\nher adoptive parents.\nIn 1995, John executed a will eliminating Annabelle as a beneficiary and leaving the residuary of his\nestate to Valerie should Odette predecease him. Valerie remained with John and Odette until 2000\nwhen Valerie was about thirty years old; at that time, Valerie and Odette had a falling-out. The judge\nfound that John allowed Odette to banish Valerie from their home but noted that he continued to\nsneak telephone calls to her. The judge credited testimony that John was disappointed in Valerie\nbecause she had deeply wounded Odette, and that John never forgave Valerie for that even though\n420\n\n\x0che continued to love Valerie and miss her. We defer to the judge\xe2\x80\x99s findings, based in part on\ncredibility determinations, in this regard.\nOdette owned and operated her own beauty salon in Brookline. The overall evidence supported the\njudge\xe2\x80\x99s findings that, at home, Odette was the \xe2\x80\x9cboss\xe2\x80\x9d and John happily acceded to her wishes in\nmost areas throughout their marriage. In particular, Odette always took the lead on the couple\xe2\x80\x99s\nestate planning.\nOdette was diagnosed with melanoma in late 2001. In 2002, she asked the same attorney (attorney)\nwho had drafted the couple\xe2\x80\x99s 1995 wills to draft new reciprocal wills for her and John, leaving their\nestates to one another but, in the event that one predeceased the other, leaving Valerie one dollar\nand the residuary of their estates to friends of Odette. John executed a will on January 14, 2002,\nconsistent with this request. Paine was named executor of the will if Odette did not survive him.\nPaula Miller, Odette\xe2\x80\x99s assistant for over twenty years and a personal friend of Odette and John, was\nnamed as one of the residuary beneficiaries of the will. New wills were executed on February 1,\n2003, February 3, 2004, and June 26, 2004, in which minor changes to the residuary beneficiaries\nwere made, but Paine remained the alternate executor. The judge allowed the June 26, 2004, will.\nThe medical records contained in the record appendix leave little doubt that John suffered from\nsome degree of dementia during the time period that the 2002\xe2\x80\x932004 wills were executed. A June 25,\n2001, neurology note concludes that John had \xe2\x80\x9csignificant frontal dysfunction with poor insight and\njudgment, difficulty changing set and mild recent memory difficulties.\xe2\x80\x9d The neurologist indicated\nthat he discussed with John and Odette that John\xe2\x80\x99s insight and judgment difficulties made it difficult\nfor him to appreciate his \xe2\x80\x9cgait instability.\xe2\x80\x9d While there was some suspicion that a vitamin B12\ndeficiency was the cause of some of his symptoms, a full neuropsychological evaluation was\nrecommended, which John underwent on October 15, 2001. The judge acknowledged the report of\nthe October 15, 2001, evaluation, noting only that it revealed \xe2\x80\x9cmild cognitive slowing.\xe2\x80\x9d\nIn fact, the history portion of the report of the October 15, 2001, evaluation reflects that Odette had\nobserved some memory impairment over the past three years and more recent word-finding\ndifficulty. The report reflects that before January of 2001, John had managed their financial affairs,\nbut that he had become \xe2\x80\x9cconfused\xe2\x80\x9d about the taxes and thereafter Odette took over the finances. In\naddition, John was receiving personal care assistance when his wife was at work. The report further\nreveals \xe2\x80\x9cevidence of significant cognitive impairment. Specifically, testing revealed mild\ndisorientation (time), mild cognitive slowing, moderate anomia, moderate amnesia, and less\npervasive frontal lobe deficits.\xe2\x80\x9d Although it was felt that incompletely treated vitamin B12 deficiency\ncould contribute to some of John\xe2\x80\x99s symptoms, the report concluded that a vitamin B12 deficiency\ndid not explain all of them and that the \xe2\x80\x9canomia and amnesia combined with less pronounced\ndeficits in frontal lobe functioning [were] highly suggestive of a diagnosis of Senile Dementia of the\nAlzheimer\xe2\x80\x99s Type (SDAT).\xe2\x80\x9d The neuropsychologist concluded that \xe2\x80\x9c[u]nless his mental status\nimproves appreciably, [John] will continue to need close supervision. Driving is contraindicated.\xe2\x80\x9d\nThe medical records do not reflect that John\xe2\x80\x99s mental status improved appreciably thereafter.\nIn July of 2002, John was seen by his primary care physician, and with regard to dementia, he was\n\xe2\x80\x9cstrongly encouraged to follow up with the neurologist for additional evaluation.\xe2\x80\x9d There is no\nevidence that John followed this advice; the next neurology note is in 2004, after his wife died and\nValerie was caring for him. When John was seen in the emergency room on June 7, 2003, a week or\ntwo after a motor vehicle accident, he was described in a neurosurgery consult as \xe2\x80\x9cbright and\n421\n\n\x0coriented x 4,\xe2\x80\x9d and the judge relied on this portion of the note in support of her finding that he had\ntestamentary capacity when the 2004 will was executed. The next sentence of the note stated,\nhowever, that \xe2\x80\x9c[t]here are obvious gaps in his short-term memory but this is of a chronic nature, as\nhis wife was present during the interview.\xe2\x80\x9d In addition, the emergency room physician noted that\nJohn was able to tell him he was in the hospital, but not which one, and that John was able to\nidentify the month and day of the week, but could not tell him the date or the year. It was further\nnoted that Odette reported \xe2\x80\x9cmore of a significant problem with some baseline confusion and this\nwas confirmed by ... his primary care physician.\xe2\x80\x9d\nThe medical records reflect that by July 3, 2003, John had a personal care attendant twenty-four\nhours per day. Notwithstanding his need for twenty-four-hour care, the judge credited a September,\n2004, note of his primary care physician that refers to John\xe2\x80\x99s dementia as \xe2\x80\x9cmild.\xe2\x80\x9d The complete\nstatement is that \xe2\x80\x9c[t]he patient also has ongoing progressive mild dementia and this has been an\nongoing symptom that was first noted in 2001. The patient also had neuropsychological exam and\ntesting in 2001 as well. Progressively, this has been monitored and certainly has noticed ... increasing\nforgetfulness.\xe2\x80\x9d In the assessment and plan section of the note, the doctor states, \xe2\x80\x9cRegarding his\ndementia, the patient will be scheduled to follow up with the neurologist for additional follow up\nevaluations. He will continue with his Zyprexa and continue to have supervision at all times with\nmonitoring of his medications and activities.\xe2\x80\x9d On August 3, 2004, his primary care physician signed\na document saying that John suffered from senile dementia and was unable to live alone. A\nNovember 2, 2004, neurology note reflects poor orientation, \xe2\x80\x9cpoor recall memory, poor working\nmemory and poor visual spatial construction.\xe2\x80\x9d\nThe judge essentially adopted the opinion of the proponent\xe2\x80\x99s expert, Dr. Barry Roth, who identified\nmedical records that described John\xe2\x80\x99s dementia as mild, and noted that medical providers continued\nto direct their reports to John and explained test results to John, and that John continued to be\ninvolved in making treatment decisions for himself. From this evidence, Dr. Roth concluded that\n\xe2\x80\x9c[a]s a physician, the preponderance of evidence indicates that [John] had capacity to know his\nproperty, who were the natural heirs to his bounty, that he was in the process of making a will to\nmake distribution with respect to those elements, and that he was in fact making such a plan.\xe2\x80\x9d\nThe attorney who drafted all the wills testified that he routinely spoke with Odette about estate\nplanning for her and John. For the wills dated after 2000, he spoke with John only by telephone, and\nJohn simply confirmed that he was in accord with the instructions as given by Odette. The attorney\ndid not have any private conversations with John. He did not visit with John. The judge credited the\nattorney\xe2\x80\x99s testimony that he drafted the wills in accordance with John\xe2\x80\x99s instructions. The attorney\ntestified, however, that he did not read the wills to John after they were drafted. He mailed the\ndocuments to John and Odette, and they took the documents to a local bank for execution. The\nattorney did not supervise the execution. He could provide no evidence as to John\xe2\x80\x99s capacity on the\ndates the wills were executed.\nAt trial, the attorney was given a copy of the October, 2001, report of the neuropsychological testing\nof John. He testified that he had been unaware of that report and the diagnosis of dementia, and\nthat, had he been aware of them, he would have investigated the issue of capacity further and would\nhave requested a medical consultation on testamentary capacity. He would not have drafted the wills\nwithout a medical evaluation. He testified he could see from the report that John was impaired and\nthat the report called into question John\xe2\x80\x99s independent judgment. Even though the attorney was\naware that John had always followed Odette\xe2\x80\x99s lead with their estate planning, had he been aware of\n422\n\n\x0cthe 2001 report, he would have consulted a physician. Nonetheless, the judge credited the attorney\n\xe2\x80\x9cwith the requisite degree of attention to capacity and free will ... expected of an attorney drafting a\nWill for a client.\xe2\x80\x9d She further credited the attorney\xe2\x80\x99s testimony that \xe2\x80\x9che would have never drafted a\nWill for a client he believed to be mentally incapacitated.\xe2\x80\x9d\nOdette brought John to their local bank to execute the various wills. The bank employees who\nwitnessed the 2002\xe2\x80\x932004 wills testified that they did not recall the specifics of the executions, but\nthey never saw John appear confused, nor did they think that he was forced to execute the wills.\nDuring the executions, they had no discussions with John aside from social niceties.\nTHE SECTION ON UNDUE INFLUENCE IS OMITTED.\nTestamentary capacity. \xe2\x80\x9cWhere there is some evidence of lack of testamentary capacity, the\npresumption of sanity loses effect and \xe2\x80\x98the burden [is] on the proponent of the will to satisfy the\ntribunal of fact by a fair preponderance of the evidence that the deceased was of sound mind and\ntestamentary capacity when the instrument was executed.\xe2\x80\x99\xe2\x80\x9d Palmer v. Palmer, 23 Mass.App.Ct. at 250,\n500 N.E.2d 1354, quoting from Santry v. France, 327 Mass. 174, 176, 97 N.E.2d 533 (1951). \xe2\x80\x9cThat\nburden is met by a showing that it is more probable than not that, at the time of execution of the\nwill, ... \xe2\x80\x98the testator [was able] to understand and carry in mind, in a general way, the nature and\nsituation of his property and his relations to those persons who would naturally have some claim to\nhis remembrance. It requires freedom from delusion which is the effect of disease or weakness and\nwhich might influence the disposition of his property. And it requires ability at the time of execution\nof the alleged will to comprehend the nature of the act of making a will.\xe2\x80\x99\xe2\x80\x9d Ibid., quoting from\nGoddard v. Dupree, 322 Mass. 247, 250, 76 N.E.2d 643 (1948), \xe2\x80\x9cIt is also well settled that in addition\nto possessing the requisite testamentary capacity and complying with the statutory formalities\nregarding execution, it must also be shown that the testator knew the contents of the instrument\nwhich he signed and executed it with the intention that it operate as his will. The burden of proof on\nthese matters is on the proponent. Here again, he is aided by a presumption that a person signing a\nwritten instrument knows its contents.\xe2\x80\x9d Duchesnean v. Jaskoviak, 360 Mass. 730, 733, 277 N.E.2d 507\n(1972) (citations omitted).\nThe evidence presented by Valerie adequately rebuts the presumption of capacity. John exhibited\nsymptoms consistent with the diagnosis of \xe2\x80\x9cSenile Dementia of Alzheimer\xe2\x80\x99s Type\xe2\x80\x9d at least as early\nas October of 2001. We are well aware that a diagnosis of Alzheimer\xe2\x80\x99s disease in and of itself does\nnot compel a conclusion that a testator lacks capacity to execute a will. The diagnosis carries more\nweight, however, when the cognitive deficits associated with Alzheimer\xe2\x80\x99s disease manifest\nthemselves in the loss of abilities that bear on testamentary capacity. Here, by June of 2001, John\xe2\x80\x99s\ncognitive deficits were such that his poor judgment caused him to be unaware that his gait was\nunsteady. By October of 2001, driving was deemed contraindicated. He required supervision when\nhis wife was not at home. And, perhaps most importantly, he had lost the ability to handle the\nfamily\xe2\x80\x99s finances, a task he had always performed. His inability to handle the finances was due to\n\xe2\x80\x9cconfusion,\xe2\x80\x9d not physical weakness. In addition, Valerie offered an expert opinion that John lacked\ntestamentary capacity to execute the 2002\xe2\x80\x932004 wills. We think this evidence taken together was\nsufficient to rebut the presumption of testamentary capacity. Compare O\xe2\x80\x99Rourke v. Hunter, 446 Mass.\n814, 827, 848 N.E.2d 382 (2006) (history of delusions that had resolved and ongoing frailty and\ndepression did not rebut the presumption of capacity where testator met with attorney on four\noccasions and clearly articulated her desires, instructing the attorney how to modify two draft wills\nbefore executing the third version).\n423\n\n\x0cPaine, the proponent of the will, bore the burden of proving John had testamentary capacity when\nhe executed his 2004 will, unaided by a presumption of testamentary capacity. She failed to meet her\nburden. Paine offered the testimony of Dr. Roth, who relied on medical notes that referred to John\xe2\x80\x99s\ndementia as \xe2\x80\x9cmild\xe2\x80\x9d and indicated that physicians continued to direct their reports to him and\ncontinued to include him in medical decisions through 2005. Dr. Roth explained that \xe2\x80\x9cthe reports of\nthe physicians over a long period of time [indicated] that they understood that he was able to take in\nwhat they were telling him [and] manipulate it to arrive at a treatment plan in collaboration with\nthem where there was informed consent. Meaning, he could take in the information, he could\nprocess it, he could work with his health care providers to arrive at a decision in cooperation with\nthem.\xe2\x80\x9d In addition, Dr. Roth indicated that the records reflect a \xe2\x80\x9cfairly mild degree of dementia.\xe2\x80\x9d\nFrom this evidence, Dr. Roth concluded that John possessed testamentary capacity. The judge\naccepted and adopted Dr. Roth\xe2\x80\x99s opinion.\nFirst, it is not at all clear that Dr. Roth\xe2\x80\x99s conclusions are supported by careful review of the medical\nrecords. In large part, he \xe2\x80\x9ccherry picked\xe2\x80\x9d portions of the medical records that could suggest John\xe2\x80\x99s\ndementia was mild and ignored contrary medical records. For example, he points to a June 27, 2002,\nhandwritten note by John\xe2\x80\x99s primary care physician indicating that John had declined to have further\nwork-up of a suspicious finding on a neck X-ray, \xe2\x80\x9cgiven his advanced age and lack of symptoms,\xe2\x80\x9d\neven though he understood it \xe2\x80\x9ccould indicate both benign and malignant process.\xe2\x80\x9d This, Dr. Roth\nconcluded, indicates John had a sophisticated, high-level ability to take in information, process it,\nunderstand it, and arrive at a reasonable plan. Dr. Roth ignores that, in follow-up two weeks later,\nfurther testing was performed, calling into question John\xe2\x80\x99s original decision. But, even accepting Dr.\nRoth\xe2\x80\x99s interpretation of the physicians\xe2\x80\x99 reports as accurate, all that can be said is that with careful\nexplanation by physicians, John retained some ability to process information and assist in reaching a\ntreatment decision. When John executed the 2002\xe2\x80\x932004 wills, however, there is no evidence that\nanyone explained his estate planning options to him. There is no evidence that the 2004 will was\nread to him, or that anyone reviewed his finances with him, or that anyone asked him to identify or\nreviewed with him the natural objects of his bounty. In these circumstances, his ability to participate\nin medical decisions, where treatment options were clearly explained, simply does not support the\ninference that he possessed testamentary capacity in a situation where his options appear not to have\nbeen explained to him, and where he was never asked to articulate the choices he was said to be\nmaking.\nIn determining that John had testamentary capacity, the judge credited the attorney with the degree\nof care and attention appropriate to the issue of testamentary capacity. See O\xe2\x80\x99Rourke v. Hunter, 446\nMass. at 827, 848 N.E.2d 382. This was plain error. It is true that in circumstances when medical and\nother evidence call into question a testator\xe2\x80\x99s capacity, we have relied on the testimony of the drafting\nattorney in resolving the testamentary capacity issue. See Palmer v. Palmer, 23 Mass.App.Ct. at 251-252\n& n. 5, 500 N.E.2d 1354 (attorney who prepared simple, one-page instrument met with testator\nprior to execution and just prior to execution, summarized each article and put the practical effect in\nsimple layman\xe2\x80\x99s language); Rempelakis v. Russell, 65 Mass.App.Ct. 557, 561-562, 842 N.E.2d 970\n(2006) (attorney met with testator in hospital, hand-wrote will according to testator\xe2\x80\x99s instructions,\nand read the will to her in front of witnesses; testator agreed it reflected her wishes before executing\nit; attorney followed up with formal will and trust and repeated reading and execution formalities);\nMaimonides Sch. v. Coles, 71 Mass.App.Ct. at 245-247, 881 N.E.2d 778 (attorney spoke with testator in\nrehabilitation hospital by telephone and took him through the changes of his second trust\namendment, which testator confirmed; testator made additional changes later that day; attorney met\n424\n\n\x0cwith testator at rehabilitation hospital and went through amendment again; testator made additional\nchange and initialed change in the margin and at all times demonstrated to attorney that he knew\nwhat he was doing and did not show any confusion).\nHere, however, the attorney was unable to provide any relevant evidence as to John\xe2\x80\x99s testamentary\ncapacity on the date the will was signed. The attorney had not seen John in a number of years and\nonly spoke with him by telephone; John simply verified he wanted what Odette wanted. The\nattorney was unaware that John had been diagnosed with dementia in 2001. While we agree with the\njudge that it is very likely that the attorney would not have drafted a will for a client he believed to\nlack testamentary capacity, the attorney admittedly did nothing to determine whether John\nunderstood the will as drafted, knew the natural objects of his bounty, had a general understanding\nof his finances, or was suffering from any ailment that might influence his dispositions.\nIt is John\xe2\x80\x99s capacity at the time he executed the will that is at issue. The record is virtually barren of\nany evidence of his testamentary capacity when the will was executed except from the witnesses to\nthe will. The most that can be said of the testimony of the bank employees who witnessed the will is\nthat John did not display any outward evidence of confusion and did not appear forced to execute\nthe will. None of the witnesses recalled the specifics of the execution, however, and none recall\ninquiring whether John knew he was signing a will, knew his financial holdings, knew the natural\nobjects of his bounty, or otherwise met the testamentary capacity standard. As to the elements of\ntestamentary capacity, the witnesses provided little relevant evidence.\nFinally, we are aware that the judge credited testimony that through 2004, John \xe2\x80\x9cappeared sharp\xe2\x80\x9d to\nRex Olson, a friend of John. Olson\xe2\x80\x99s conversations with John, however, were limited to small talk,\nOdette, and their military careers. He described them as \xe2\x80\x9cnothing in depth\xe2\x80\x9d and did not provide any\ndescription of John on or near the date the will was executed.\nWe are compelled to conclude, therefore, that Paine, as the proponent, failed to meet her burden of\nproving that John possessed testamentary capacity when he executed the June 26, 2004, will, and\nreverse the judgment allowing that will for probate. The judge made no findings as to the February\n3, 2004, will, also offered by Paine, or the 1995 will, offered by Valerie. Therefore, the matter is\nremanded to the Probate and Family Court for further proceedings consistent with this opinion.\nSo ordered.\nNotes, Problems, and Questions\n1. In Paine, what evidence did Valerie rely on to rebut the presumption that John had testamentary\ncapacity? Why did the court hold that she had successfully rebutted the presumption?\n2. In Paine, what evidence did the proponent of the will put forth? What did the court say about that\nevidence?\n3. In Paine, why did the probate court decide that John had testamentary capacity?\n4. In Paine, why did the appellate court hold that John did not have testamentary capacity?\n\n425\n\n\x0c5. Why was the case sent back to the Probate and Family Court?\n6. Problems-In which of the following cases would the testator lack capacity?\n(a) T forgot that her oldest son had been killed in a car accident and insisted that he be included\nin her will.\n(b) T\xe2\x80\x99s family home was seized by the government for back taxes. After the seizure, T continued\nto maintain the yard. T included the property in her will because she plans to win the lottery\nand buy the property back from the government.\n(c) T stated that his estate was worth 982,000 dollars. The estate was worth only 90,000 dollars.\n(d) T was diagnosed with bipolar disorder two years before she executed her will. In order to\nstop her from depleting her trust fund, T\xe2\x80\x99s parents went to court and successfully got\nappointed as her guardian. After that time, without her parents\xe2\x80\x99 knowledge, T amended her\nwill and left her entire estate to charity.\n9.3\n\nInsane Delusion\n\nMatter of Estate of Killen, 937 P.2d 1368 (Ariz. App. 1996)\nGRANT, Presiding Judge.\nIn this appeal, we consider whether a testator who knew the natural objects of her bounty but had\ninsane delusions about some of them that affected the terms of her will had the testamentary\ncapacity to execute a will. We hold that she did not have such capacity and that the evidence\nsupports the trial court\xe2\x80\x99s conclusion that the testator\xe2\x80\x99s will is invalid due to lack of testamentary\ncapacity.\nFACTS AND PROCEDURAL HISTORY\nOn February 13, 1988, appellant Marion McCannon (\xe2\x80\x9cMarion\xe2\x80\x9d) and his wife, Virgie, arrived in\nPhoenix from Missouri to visit his aunt, Dorothy I. Killen, the decedent (\xe2\x80\x9cKillen\xe2\x80\x9d). Four days later,\nKillen told the McCannons that she wanted to find an attorney to draft a will for her. After driving\naround, they found two law offices, but the attorneys in those offices were unavailable. At the third\noffice they tried, attorney Frank Collins agreed to draft a will for Killen. Collins did not know the\nMcCannons or Killen.\nAt Killen\xe2\x80\x99s request, the McCannons left the office, and she conferred with Collins for an hour or\ntwo. The McCannons took her back to Collins\xe2\x80\x99 office the next day, February 18, 1988, for execution\nof the will. Collins and a couple who operated a shop next to Collins\xe2\x80\x99 office witnessed Killen\xe2\x80\x99s\nexecution of her will.\nIn the will, Killen bequeathed only one dollar each to her nephews Russell Edward McCannon and\nR.C. McCannon and her niece Carolyn Dixon. She bequeathed to Marion McCannon $75,000, a rug,\n426\n\n\x0chalf of $75,000 upon the death of her sister (who was to receive the interest on the $75,000 during\nher lifetime), all of her personal property, and a pro rata share of her residuary estate. Bequests were\nalso made to other family members and friends. She named Marion as the personal representative.\nKillen\xe2\x80\x99s husband, Dylton, had died in 1985. They had no children. For many years prior to Dylton\xe2\x80\x99s\ndeath, Killen believed that he was trying to kill her, was putting poison in her food, and was in \xe2\x80\x9cthe\nmob.\xe2\x80\x9d However, by all accounts, Dylton was a fine man and a loving husband who cared for his\nwife despite her delusions about him.\nShortly before Dylton\xe2\x80\x99s death, Killen began having delusions about Russell, R.C., and Carolyn. Even\nthough these nephews and niece took care of her when her husband was ill and after his death and\ntreated her well, she believed they lived in her attic, or caused others to live in the attic, and\nsprinkled chemicals and parasites down on her, put her to sleep and then pulled a tooth out and cut\nher arms and hands with glass, were in the Mafia, and were trying to kill her so they could take her\nproperty. Although other relatives tried to dissuade Killen from these bizarre beliefs, she would\ninsist that Russell, R.C., and Carolyn were out to get her.\nOn February 10, 1988, eight days before she executed her will, Killen was evaluated by Dr. Vinod\nPatel, a psychiatrist. He diagnosed her as having a delusional paranoid disorder. He noted that\nKillen\xe2\x80\x99s judgment was compromised by paranoid ideas and that her delusional beliefs \xe2\x80\x9ccan interfere\nin certain decision making.\xe2\x80\x9d\nKillen was admitted to Boswell Memorial Hospital on March 9, 1988, due to difficulty in breathing\nand weakness. Because of her delusional and paranoid behavior, Killen was transferred later that day\nto the psychiatric unit at the Maricopa County Hospital. The psychiatrist who examined her\nconcluded that she was having persecutory delusions, her insight was poor and her judgment was\nimpaired, and she was incapacitated by mental illness. He recommended that a guardian and\nconservator be appointed for her.\nKillen died in March, 1993. Marion applied for informal probate of her February 18, 1988 will. The\nwill was admitted to informal probate, and Marion was appointed personal representative.\nRussell, R.C., and Carolyn petitioned the probate court for determination of testacy, removal of\nMarion as personal representative, and appointment of M & I Marshall & Ilsley Trust Company of\nArizona as personal representative of Killen\xe2\x80\x99s estate. They alleged that at the time Killen executed\nthe will she was operating under a mental derangement and did not have the capacity to make a valid\nwill.\nThe matter was tried to the court in September, 1993. Dr. Patel testified that Killen could not have\nhad lucid intervals because a delusion is permanent and lucid intervals are not possible with that\ncondition. According to Dr. Patel, Killen\xe2\x80\x99s delusional disorder affected her ability to perceive her\nfamily members and friends. In his opinion, a person with delusional paranoia, when family and\nfriends are involved in the delusions, would be unable to make a valid will.\nDr. Alexander Don, a psychiatrist, also testified. He had examined Mrs. Killen on November 27,\n1989, and had reviewed her hospital records, records of other psychiatric evaluations, and\ndocuments prepared by some of her family members. In his opinion, on February 18, 1988, Killen\nwas suffering with a psychotic illness termed delusional disorder. He explained that a delusion is a\n427\n\n\x0cfixed false belief that cannot be disabused by rational argument and that because of her delusional\ndisorder she believed her husband and Russell and R.C. intended to harm her.\nDr. Don further testified that Killen\xe2\x80\x99s delusions would have influenced the writing of a will because\nher belief that individuals close to her were trying to destroy her would have been uppermost in her\nmind when she contemplated her actions toward them. Thus, he said, her perception of various\nbeneficiaries was not rational or lucid. In Dr. Don\xe2\x80\x99s opinion, Killen knew who the natural objects of\nher bounty were, but she had a misperception of them because of her mental illness.\nAs contradictory evidence, Marion offered the testimony of Dr. Otto Bendheim, a psychiatrist. Dr.\nBendheim never examined Killen, he did not review her hospital records, and he acknowledged that\nhe did not perform a complete psychiatric autopsy but only reviewed the items relevant to the\nquestion of her capacity to make a will. He testified that there was no question that the diagnosis of\nKillen as psychotic, paranoid, and suffering from paranoid delusion disorder was correct. However,\nhe believed that she had testamentary capacity because she knew she was executing a will, she knew\nthe natural objects of her bounty, and she was aware of the nature and extent of her estate.\nThe probate court found that despite the good care Killen received from Russell, R.C., and Carolyn,\nshe believed they were trying to injure her and take her property. These delusions, said the court,\nwere false and were fixed and unshakable in her mind when she signed the February 18, 1988 will.\nThe probate court found that Killen did not have the capacity to know the natural objects of her\nbounty and to appreciate her relationships with them. Therefore, it concluded that on February 18,\n1988, Killen lacked testamentary capacity as a result of a delusional paranoid disorder that influenced\nthe creation and terms of the will she signed that day and thus the will was invalid. The court\nentered an order withdrawing the will from probate, declaring that Killen died intestate, removing\nMarion as personal representative, and appointing M & I Marshall & Ilsley Trust Company of\nArizona as successor personal representative. The court noted that each of Killen\xe2\x80\x99s nieces and\nnephews was entitled to one-eighth of her estate.\nThe court denied Marion\xe2\x80\x99s motion for new trial. Marion, as personal representative and in his\npersonal capacity, appealed from the order and the denial of his motion for new trial.\nDISCUSSION\nMarion poses the issue on appeal as whether a testator\xe2\x80\x99s will is valid if she understands the nature of\na will, knows the nature and extent of her property and knows the natural objects of her bounty but\nhas a misperception of some of her family members due to insane delusions. He argues that a\ntestator need only have the ability to know the natural objects of her bounty; it is not necessary that\nshe possess an accurate perception of her relationships or have plausible, justifiable reasons for her\nopinions about her family members.\nMarion maintains that, in any event, there was no proof that Killen\xe2\x80\x99s paranoid state and nothing else,\nsuch as a rational dislike and distrust of Russell, R.C., and Carolyn, produced her hostility toward\nthem. Marion argues that in reaching the conclusion it did, the probate court disregarded Arizona\nlaw and substituted a rule that even when a testator is found to have known the natural objects of\nher bounty, a will may be rejected on a showing that the testator\xe2\x80\x99s subjective perceptions of one of\nthose persons has been affected by a paranoid delusion concerning that individual.\n428\n\n\x0cThe policy of the law favors testacy. In re Walters\xe2\x80\x99 Estate, 77 Ariz. 122, 125, 267 P.2d 896, 898 (1954).\nThus, the law presumes that a testator had the requisite mental capacity to execute a will. In re\nVermeersch\xe2\x80\x99s Estate, 109 Ariz. 125, 128, 506 P.2d 256, 259 (1973); Matter of Estate of Thorpe, 152 Ariz.\n341, 732 P.2d 571, 573 (App.1986). The contestant of a will has the burden of showing by a\npreponderance of the evidence that the testator lacked testamentary capacity at the time the will was\nexecuted. Walters\xe2\x80\x99 Estate, 77 Ariz. at 125, 267 P.2d 898. The contestant must produce evidence\nsufficient to rebut the presumption of testamentary capacity. Id. It is our duty to carefully scrutinize\na probate court ruling that a will is invalid and to set aside the ruling if the evidence is not sufficient\nto support it. Id.\nThe court considers the testator\xe2\x80\x99s capacity as it existed at the time the will was executed. In re Teel\xe2\x80\x99s\nEstate, 14 Ariz.App. 371, 373, 483 P.2d 603, 605 (1971). To invalidate a will for lack of testamentary\ncapacity, the contestant must show that the testator lacked at least one of the following elements: (1)\nthe ability to know the nature and extent of his property; (2) the ability to know his relation to the\npersons who are the natural objects of his bounty and whose interests are affected by the terms of\nthe instrument; or (3) the ability to understand the nature of the testamentary act. In re O\xe2\x80\x99Connor\xe2\x80\x99s\nEstate, 74 Ariz. 248, 257, 246 P.2d 1063, 1070 (1952); Evans v. Liston, 116 Ariz. 218, 219, 568 P.2d\n1116, 1117 (App.1977).\nIn addition, Arizona law recognizes that mental illness can render a person incapable of making a\nvalid will if the insanity is so broad as to produce general mental incompetence or a form of insanity\nthat causes hallucinations or delusions. In re Stitt\xe2\x80\x99s Estate, 93 Ariz. 302, 305, 380 P.2d 601, 603 (1963);\nEvans, 116 Ariz. at 220, 568 P.2d at 1118. To invalidate a will, however, the will must be a product of\nthe hallucinations or delusions; in other words, the hallucinations or delusions must have influenced\nthe creation and terms of the will such that the testator devised his property in a way that he would\nnot have done except for the delusions. O\xe2\x80\x99Connor\xe2\x80\x99s Estate, 74 Ariz. at 258, 246 P.2d at 1069-70\n(quoting In re Greene\xe2\x80\x99s Estate, 40 Ariz. 274, 11 P.2d 947 (1932)); Evans, 116 Ariz. at 220, 568 P.2d at\n1118. Furthermore, a generally deteriorating mental condition, eccentricities, idiosyncracies, or\nmental slowness and poor memory associated with old age do not necessarily destroy testamentary\ncapacity. Stitt\xe2\x80\x99s, 93 Ariz. at 306, 380 P.2d at 603 (quoting In re Wright\xe2\x80\x99s Estate, 7 Cal.2d 348, 60 P.2d\n434, 438 (1936)); Thorpe, 152 Ariz. at 348, 732 P.2d at 578; Evans, 116 Ariz. at 219-20, 568 P.2d at\n1118.\nArizona does not have a reported case in which a court has found that the testator\xe2\x80\x99s insane delusions\nat the time of execution of the will rendered it invalid. However, application of Arizona law leads to\nthe conclusion that even if the testator has apparent testamentary capacity under the three-prong\ntest, the will is nonetheless invalid if an insane delusion affects the terms of the will related to one of\nthe requirements. The court in Matter of Will of Maynard, 64 N.C.App. 211, 307 S.E.2d 416, 430\n(1983) (quoting Wiggins, Wills and Administration of Estates in North Carolina, \xc2\xa7 47, pp. 65\xe2\x80\x9366 (2d ed.\n1983)), explained this rule as follows:\n\xe2\x80\x9cIf a person has sufficient mental ability to make a will but is subject to an insane delusion, i.e.,\nmonomania, as to one of the essential requirements of testamentary capacity, the will would not\nbe valid. For example, if the testator has an insane delusion as to the objects of his bounty, it\nwould invalidate his will.\n******\nAn insane delusion must be distinguished from prejudice, hate, bad judgment, ill will, and any\n429\n\n\x0cnumber of other conditions which might be associated with sanity. To be sufficient to invalidate\nthe will, the delusion must have no foundation in fact and must be the product of the testator\xe2\x80\x99s\ndiseased or deranged mind.\xe2\x80\x9d\nThe court in Kirkpatrick v. United Bank of Benton, 269 Ark. 970, 601 S.E.2d 607, 609 (1980), noted that\nthe settled law is that \xe2\x80\x9cwhile an individual may possess the requisite testamentary capacity, he may, at\nthe same time, be laboring under one or more insane delusions which may have the effect of making\nhis purported will a nullity.\xe2\x80\x9d See also In re Dovci\xe2\x80\x99s Estate, 174 Pa Super. 266, 101 A.2d 449, 451\n(1953)(if testator is of sound mind regarding general dealings but is under insane delusion that\naffects terms of his will, will is invalid); Matter of Estate of Kesler, 702 P.2d 86, 88 (Utah 1985) (insane\ndelusion that affects one\xe2\x80\x99s understanding of the natural objects of one\xe2\x80\x99s bounty and materially\naffects disposition of one\xe2\x80\x99s property may invalidate a will).\nAccordingly, if the testator is eccentric or mean-spirited and dislikes family members for no good\nreason, but otherwise meets the three-prong capacity test, leaving the family members out of the will\nwould not be due to lack of testamentary capacity. See Stitt\xe2\x80\x99s. However, when mental illness that\nproduces insane delusions renders the testator unable to evaluate or understand his relationships\nwith the natural objects of his bounty and this inability affects the terms of his will, the testator lacks\nthe mental capacity to make a valid will. Thus, we examine the evidence produced in the probate\ncourt to determine whether it is sufficient to support the conclusion that Killen suffered from a\ndelusionary condition that affected the provisions of her will. See Thorpe, 152 Ariz. at 343, 732 P.2d at\n573 (in will contest, appellate court may properly examine evidence to determine whether it is legally\nsufficient.)\nTwo of the psychiatrists who examined Killen, one eight days before she executed the will and the\nother twenty-one months later, testified that at the time she executed her February 18, 1988 will she\nwas suffering from a delusional paranoid disorder. Dr. Patel testified that her delusional condition\nwas permanent and that she could not have had a lucid interval. Dr. Don testified that it would be\nhighly unusual for Killen to have a lucid day or moment and that delusions never go into remission,\neven with treatment.\nThe records of the psychiatrist who examined Killen a few weeks after she made her will show that\nhe found her to have persecutory delusions and to be mentally incapacitated. Although no\npsychiatrist examined Killen on the day she executed her will, the court may consider evidence of\nher mental capacity before or after her execution of the will to show her state of mind at the time\nshe executed the will. See O\xe2\x80\x99Connor\xe2\x80\x99s Estate, 74 Ariz. at 257, 246 P.2d at 1070; Thorpe, 152 Ariz. at\n344, 732 P.2d at 574. 0Thus, the evidence clearly supports the trial court\xe2\x80\x99s finding that Killen was\nsuffering from a psychotic mental illness diagnosed as delusional paranoid disorder on the day she\nexecuted her will.\nLikewise, the evidence supports the conclusion that when she signed her will, Killen was operating\nunder insane delusions about Russell, R.C., and Carolyn, and her delusions controlled her perception\nof those persons and her treatment of them in her will. Dr. Patel testified that Killen\xe2\x80\x99s delusional\ndisorder affected her ability to perceive her family members and friends. According to Dr. Don,\nKillen\xe2\x80\x99s animosity toward Russell, R.C., and Carolyn was completely based on her delusional belief\nsystem, and it was this delusion-based animosity that caused her to leave them only one dollar each\nin her will. He testified that although Killen knew who the natural objects of her bounty were, due\nto her illness she had a skewed perception of the roles of those people in her life. Thus, the expert\n430\n\n\x0ctestimony supported the conclusion that Killen\xe2\x80\x99s delusions controlled her disposition of her\nproperty.\nFurthermore, the evidence clearly supports the finding that Killen\xe2\x80\x99s delusions about Russell, R.C.,\nand Carolyn were without foundation or basis in fact.2 She believed that they stayed in her attic,\nsprayed chemicals and parasites from the attic, were trying to poison her, were trying to take her\nproperty, and were in the Mafia. Some of her beliefs were too bizarre to be real. As to those that\nmight be theoretically plausible, there was no evidence that Killen\xe2\x80\x99s nephews and niece had ever\ntried to harm her in any way or to take anything from her. Therefore, the court\xe2\x80\x99s finding that\nKillen\xe2\x80\x99s delusional beliefs about her nephews and niece were without foundation or basis in fact is\nsupported by the evidence.\nThe only evidence contrary to the court\xe2\x80\x99s finding was the opinion of Dr. Bendheim that although\nKillen suffered from paranoid delusion disorder, she had testamentary capacity because she satisfied\nthe three-prong test. However, in light of the law that an insane delusion may render a will invalid\ndespite apparent capacity under the test, the probate court did not err in rejecting Dr. Bendheim\xe2\x80\x99s\nopinion.\nAs noted above, Marion argues that there is no proof that it was solely Killen\xe2\x80\x99s delusions that\nproduced her hostility toward Russell, R.C., and Carolyn. If Killen had not suffered from insane\ndelusions, she might have disliked them for a rational reason. However, Marion\xe2\x80\x99s position is\nrebutted by Dr. Don\xe2\x80\x99s testimony. There is no way of knowing what Killen might have felt without\nthe delusions. The evidence shows that Killen\xe2\x80\x99s feelings toward Russell, R.C., and Carolyn were\ncontrolled by her delusions. Therefore, because this mental impairment did not allow her a rational\nand lucid view of her relationships, in a legal sense, she did not have the mental capacity required to\nmake a will.\nWhat might have been if she did not suffer from delusions cannot control in such a situation as it\nwould be mere speculation; what does control is the fact that her paranoid delusions prevented her\nfrom appreciating her relationships with the natural objects of her bounty. This rule makes it\nunnecessary to try to determine what was in Killen\xe2\x80\x99s mind regarding her family members when she\nmade her will. If the evidence shows that the testator had unfounded insane delusions that affected\nthe terms of the will, the testator lacked the capacity to make a will; no inquiry into the testator\xe2\x80\x99s\nfeelings or motivation is necessary.\nMarion also argues that the evidence does not explain why Killen\xe2\x80\x99s delusions focused on Russell\nand, to a lesser extent, R.C. and Carolyn. He proposes that it may be because she rationally had\ncome to dislike and distrust them. However, there is no evidence that, at least since the last few\nyears of her husband\xe2\x80\x99s life, Killen was able to rationally evaluate her relationships without delusional\ninterference. In addition, although none of the expert witnesses specifically testified as to why\nKillen\xe2\x80\x99s delusions focused on her husband and then on Russell, R.C., and Carolyn, the evidence\nindicates that her delusions focused on the persons who were closest to her and who took care of\nher. For example, Dr. Don reported that when he examined her in 1989, she believed that staff\nmembers of the care center at which she was then living had rummaged through her possessions,\nintroduced noxious chemical substances into her room, poisoned her food, and bugged her room.\nMost significantly for purposes of the will contest, her delusions focused on natural objects of her\nbounty. If, for example, when she executed her will she had been living at the care center and her\n431\n\n\x0cdelusions had involved only staff at the care center, her delusionary condition would have not\nimpacted her testamentary capacity, and the will might have been valid. However, because her insane\ndelusions focused on natural objects of her bounty and thus materially affected her disposition of\nher property, the court correctly found the will to be invalid.\nIn summary, we hold that if at the time of execution of a will the testator knew the natural objects of\nher bounty but suffered from insane delusions that affected her perception of those persons and the\nterms of the will, the testator did not have the requisite testamentary capacity and the will is invalid.\nThe evidence before the probate court supported its conclusion that Killen was suffering from such\na paranoid delusion when she executed her will and that the February 18, 1988 will is invalid.\nAccordingly, we affirm the probate court\xe2\x80\x99s order declaring the will to be invalid and withdrawing it\nfrom probate.\n\nMatter of Estate of Watlack, 945 P.2d 1154 (Wash. App. 1997)\nKURTZ, Judge.\nBetween March 26, 1988, and June 22, 1988, Stephen Watlack executed two wills. The first will\nnamed his children as beneficiaries and the second will disinherited them in favor of the children of\nhis favorite brother. The trial court set aside the second will as the product of an insane delusion and\nadmitted the first will to probate. The personal representative and beneficiaries of the second will\nappeal. We hold that the facts support the trial court\xe2\x80\x99s conclusion that Mr. Watlack was suffering\nfrom an insane delusion at the time he executed the second will.\nFACTS\nStephen Watlack was born on August 3, 1902. He was divorced in 1963, and thereafter maintained\nonly sporadic contact with his two children David Watlack and Dawn Freeman. In March 1988,\nDawn Freeman went to California to assist her father in a dispute he was involved in with his longtime companion, Dorothy Gregory. This dispute arose over the disappearance of approximately\n$100,000 of cash, which Mr. Watlack believed Ms. Gregory\xe2\x80\x99s nephew, Gordon Scott, had taken. At\nthe same time, Mr. Watlack had a delusion that Mr. Scott had hit him over the head. Mr. Watlack\nmade an attempt to attack Mr. Scott with an ax as a result of this delusion.\nThis dispute led to litigation between Mr. Watlack and Ms. Gregory and Mr. Scott. The parties\nnegotiated a settlement wherein Mr. Watlack received his home in Falbrook, California, and a 1983\nLincoln automobile. As part of the settlement, he agreed to release all of his claims against Ms.\nGregory and Mr. Scott and to drop criminal charges. At this time, it was also determined that Mr.\nWatlack would sell his home and return to Starbuck, Washington, to live with his daughter.\nOn March 26, 1988, Mr. Watlack executed a will while still a resident of California, designating his\ntwo children as the sole beneficiaries. A prior will designated Ms. Gregory as the beneficiary.\nIn April 1988, prior to returning to Starbuck, Washington, Mr. Watlack transferred ownership of his\n1983 Lincoln to Dawn Freeman and placed his home in California for sale. He opened a joint\nchecking account in Dayton, Washington, with Ms. Freeman. In May 1988, he gave Ms. Freeman\n432\n\n\x0c$200 to purchase clothes for herself and her children. He subsequently accused her of stealing the\n$200.\nAt this time, he was constantly talking about what he would do with the proceeds from the sale of\nhis house. His house sold and a check for $98,000 was issued on May 31, 1988. When Mr. Watlack\ninquired about this money, Ms. Freeman told him she had not yet received it. Ms. Freeman had in\nfact arranged for the check to be held in California. She did not intend to permanently deprive or\nmisappropriate Mr. Watlack\xe2\x80\x99s funds, but was fearful that if the check came in the mail, he would\ncash it, leave, and dissipate the funds. At no point, did Mr. Watlack authorize Ms. Freeman to take\ncontrol of the proceeds of his house sale.\nMr. Watlack moved from the Freeman home in the latter part of May 1988. At that time, he was\nangry with Ms. Freeman. He accused her of being a thief, and stated he wanted to return to the sea.\nThereafter, he lived in a motel for a few days, and then lived in a foster home run by Mr. and Mrs.\nSanford until he was placed in a nursing home in Walla Walla in September 1989. Ms. Freeman and\nher husband attempted to visit Mr. Watlack at the foster home on May 29, 1988, but he became\nextremely angry and accused them of stealing his money. The Sanfords requested that they not\nreturn as it was too upsetting.\nMs. Freeman returned from a trip to California on June 17, 1988, and promptly turned the sale\nproceeds check over to Dayton attorney Terry Nealey. Initially, she had contacted Mr. Nealey on\nMay 5 about a real estate matter concerning Mr. Watlack and thereafter on May 25, to inquire about\na guardianship for him. She was concerned about his desire to take his money and return to the sea,\nand his desire to obtain revenge against Mr. Scott. She was also concerned that someone would take\nhis money. At that time, Mr. Nealey agreed to represent her with respect to the guardianship for her\nfather.\nIn the meantime, on June 15, 1988, Mr. Watlack asked Mrs. Sanford to make an appointment for\nhim with an attorney. He wanted to change his will. Acquainted with Mr. Nealey, she scheduled an\nappointment for June 17. During this meeting, Mr. Watlack identified his family members, including\nhis children and niece and nephews, and named the niece and nephews as the sole beneficiaries\nbecause they were the children of his favorite brother. None of these relatives visited him in\nWashington or came to his funeral. One of them, Audrey Watlack, visited him in California in April\n1988, when he had his dispute with Ms. Gregory. At the time of his meeting with Mr. Nealey, Mr.\nWatlack stated that he did not want to leave his son and daughter anything. He expressed his anger\nwith Ms. Freeman and again accused her of stealing money from him. The provision in the will\ndisinheriting Mr. Watlack\xe2\x80\x99s children stated that they were to receive nothing because he had spent\nvery little time with them and had previously given Ms. Freeman his 1983 Lincoln.\nOn June 21, 1988, Ms. Freeman and her husband met with Mr. Nealey to discuss Mr. Watlack\xe2\x80\x99s\nguardianship. At this time, Ms. Freeman turned over the check for $98,000 and the bank account\ncashier\xe2\x80\x99s check for $1,500. Later that day, Mr. Watlack returned to Mr. Nealey\xe2\x80\x99s office to sign his\nwill. Mr. Nealey then disclosed to Mr. Watlack that Ms. Freeman had delivered to him the $98,000\ncheck, and a cashier\xe2\x80\x99s check for $1,500 from his bank account. He also advised Mr. Watlack of the\nguardianship petition. Mr. Watlack agreed to the guardianship so long as Mrs. Sanford was\nappointed as his guardian. Mr. Watlack requested that the check for $98,000 be placed into an\ninterest bearing account.\n433\n\n\x0cThe next day Mr. Watlack returned to Mr. Nealey\xe2\x80\x99s office to sign his new will. Angry and pounding\nthe desk, Mr. Watlack again accused his children of stealing the money now in Mr. Nealey\xe2\x80\x99s\npossession. Concerned about his capacity to make a will, Mr. Nealey tried to calm his client.\nAlthough agitated, Mr. Watlack had testamentary capacity at the time of the signing of the June 22,\n1988, will. Nonetheless, on that date he still held the false belief that Ms. Freeman had stolen money\nfrom him and continued to accuse her of taking the money. From at least March 1988 through the\ndate of his eventual death, Mr. Watlack suffered from this and other insane delusions.\nThe guardianship was commenced in superior court on June 22, 1988. The guardian permitted Mr.\nWatlack to maintain a checking account until September 1989, to which his pension was deposited\nand personal expenses, including foster home charges, were deducted. Mr. Watlack had a habit of\nstashing cash and this behavior continued while he lived in Washington. Out of money from his\nchecking account, he accumulated more than $2,000 hidden under his mattress that was discovered\nwhen he went to a nursing home in Walla Walla in September 1989.\nMr. Watlack died on December 16, 1993, in Walla Walla. Ms. Freeman petitioned the court to admit\nhis will dated March 26, 1988, and Audrey Watlack, Mr. Watlack\xe2\x80\x99s niece, filed an objection and\npetitioned the court to admit his will dated June 22, 1988. After a trial, the court made all of the\nfindings recited in this summary of the facts. Based on these findings, the court determined Mr.\nWatlack had suffered from an insane delusion at the time he executed the June 22, 1988, will.\nThe court admitted to probate the March 26, 1988, will designating Mr. Watlack\xe2\x80\x99s children as the\nsole beneficiaries. Dorothy Sanford, as the personal representative of the will dated June 22, 1988,\nand Mr. Watlack\xe2\x80\x99s niece and nephews appealed.\nANALYSIS\nMr. Watlack\xe2\x80\x99s children contend this appeal should be dismissed because the appellants did not file a\nreport of proceedings, citing Heilman v. Wentworth, 18 Wash.App. 751, 571 P.2d 963 (1977), review\ndenied, 90 Wash.2d 1004 (1978) and City of Seattle v. Torkar, 25 Wash.App. 476, 610 P.2d 379, review\ndenied, 94 Wash.2d 1001 (1980). These cases are distinguishable because they involved incomplete\nrecords that were insufficient for adequate review by the appellate court. Here, appellants are not\nasserting any factual challenges, but are challenging whether the conclusions are supported by the\ncourt\xe2\x80\x99s findings. RAP 9.1(a) provides that the record on review may consist of a report of\nproceedings but does not make the filing of such a report mandatory. Because the clerk\xe2\x80\x99s papers and\nfindings of fact and conclusions of law provide a sufficient record for review here, the filing of a\nreport of proceedings was not necessary. These unchallenged findings of fact are verities on appeal.\nOur review is limited to determining whether the conclusions of law are supported by findings of\nfact. Holland v. Boeing Co., 90 Wash.2d 384, 390, 583 P.2d 621 (1978).\nAs will contestants, Mr. Watlack\xe2\x80\x99s children have the burden of establishing the will\xe2\x80\x99s invalidity by\nclear, cogent, and convincing evidence. In re Estate of Meagher, 60 Wash.2d 691, 692, 375 P.2d 148\n(1962), A person may be insane regarding a certain subject and have one or more delusions, but\ndespite such deficiencies that person may have testamentary capacity. In re Estate of O\xe2\x80\x99Neil, 35\nWash.2d 325, 334, 212 P.2d 823 (1949). A will may be invalidated if it is shown by clear, cogent, and\nconvincing evidence that at the time the will was executed, the testator was laboring under insane\ndelusions that materially affected the disposition of the will. Meagher, 60 Wash.2d at 692, 375 P.2d\n148. Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown by the\n434\n\n\x0cevidence to be highly probable. In re Dependency of K.R., 128 Wash.2d 129, 141, 904 P.2d 1132 (1995).\nAn \xe2\x80\x9cinsane delusion\xe2\x80\x9d is not well defined by case law. It has been defined as a false belief, which\nwould be incredible in the same circumstances to the victim if he was of sound mind, and from\nwhich he cannot be dissuaded by any evidence or argument. In re Estate of Klein, 28 Wash.2d 456,\n472, 183 P.2d 518 (1947). It was later described as a condition of such \xe2\x80\x9caberration as indicates an\nunsound or deranged condition of the mental faculties....\xe2\x80\x9d Meagher, 60 Wash.2d at 693, 375 P.2d 148\n(quoting Owen v. Crumbaugh, 228 Ill. 380, 81 N.E. 1044, 1051 (1907)). A belief resulting from a\nprocess of reasoning from existing facts will not be an insane delusion, regardless of whether the\nreasoning is imperfect or the conclusion illogical. Meagher, 60 Wash.2d at 693, 375 P.2d 148.\nMrs. Sanford first challenges conclusions of law 4 and 6, wherein the court determined Mr. Watlack\nhad no rational basis to believe Ms. Freeman had stolen the house proceeds or other monies from\nhim as of the afternoon of June 21, 1988. These conclusions are supported by the court\xe2\x80\x99s findings\nthat Mr. Nealey disclosed to Mr. Watlack the day before the execution of his will, the fact that Ms.\nFreeman had obtained and delivered to his office the $98,000 house proceeds check and a $1,500\ncheck from Mr. Watlack\xe2\x80\x99s bank account; Mr. Watlack specifically requested the check be placed in\nan interest bearing account later that day; at the time of the will signing, he continued to accuse her\nof stealing the money even though he was aware the check was in his attorney\xe2\x80\x99s possession; and Mr.\nWatlack had given Ms. Freeman $200 for clothing in May 1988 and later accused her of stealing the\nmoney.\nShe also challenges conclusion of law 5, wherein the court determined Mr. Watlack was suffering\nfrom an insane delusion at the time he executed the June 22, 1988, will. The court found Mr.\nWatlack was very agitated and angry at the time he signed his will on June 22, 1988, because he\nfalsely believed Ms. Freeman had stolen money from him even though he knew the proceeds check\nwas in the possession of his attorney. Likewise, the court found Mr. Nealey had informed Mr.\nWatlack that Ms. Freeman had delivered the proceeds check to his office on June 21, 1988, yet Mr.\nWatlack continued to believe Ms. Freeman had stolen the money. Mr. Watlack\xe2\x80\x99s continued\nadherence to this false belief despite all evidence to the contrary which was presented to him\nconstituted an insane delusion. The court\xe2\x80\x99s conclusion that he was suffering from this insane\ndelusion during the execution of the will is supported by the findings.\nMrs. Sanford next challenges conclusion of law 7, wherein the court determined Mr. Watlack had\nnot put aside his insane delusions when he made the will on June 22, 1988. This conclusion is\ndirectly supported by the court\xe2\x80\x99s findings that Mr. Watlack suffered from insane delusions from at\nleast March 1988 through the date of his death, became angry at the will signing because he falsely\nbelieved Ms. Freeman had stolen his money and continued to accuse her of such on that date, and\ncontinued to make accusations of her stealing the money long after his guardianship was established\nin June 1988.\nFinally, Mrs. Sanford challenges conclusion of law 8, wherein the court determined Ms. Freeman\nand her brother David Watlack were disinherited based upon Mr. Watlack\xe2\x80\x99s extreme anger caused by\nan insane delusion and not on the basis that he had little contact with them or that he had previously\ngiven Ms. Freeman his car. Mrs. Sanford contends these reasons supply other motives for the\ndisposition made, and Ms. Freeman did not establish the insane delusion was the controlling factor\nin the disposition.\n435\n\n\x0cThis contention, however, is not supported by the court\xe2\x80\x99s findings that Mr. Watlack made\narrangements to see an attorney about a new will shortly after an outburst with the Freemans\nwherein he accused them of stealing his money; while meeting with Mr. Nealey about the will, he\nstated he did not want to leave his children anything and again accused his daughter of stealing his\nmoney; and at the will signing again became agitated and angry with his daughter, pounding his fist\non the desk and accusing her of stealing his money. Instead, the facts here indicate Mr. Watlack\xe2\x80\x99s\ninsane delusion was the controlling reason for the new disposition in his June 22, 1988, will. In\nsummary, the findings of fact support the conclusion that the June 22, 1988, will is a product of an\ninsane delusion.\nHOLDING\nThe judgment of the trial court is affirmed.\nNotes, Problems, and Questions\n1. Any person can be delusional and still be capable of executing a will. The problem occurs when\nthe delusion is insane and the manner in which the testator distributes her property is influenced by\nthat delusion. Hence, when evaluating the cases, you need to engage in a three step analysis. First,\nyou must identify the delusion. Second, you must decide whether or not that delusion is insane.\nInsanity is not a psychological term; it is a legal term.88 A delusion is insane if the person holds on to\nthe belief despite facts to the contrary. Third, you must determine whether or not the insane\ndelusion was the motivating factor behind the testator\xe2\x80\x99s decision to dispose of his or her property in\na certain way. Review the facts of the two cases in this section and do the three step analysis. Did\nyou come out with the same result as the courts?\nClass Discussion Tools\n(a) 75 year old Jillian met with a lawyer to have him draft her will. During the initial interview, Jillian\ntold the lawyer that she wanted to leave her house to Mr. Giggles. When the lawyer asked for Mr.\nGiggles\xe2\x80\x99 address, Jillian opened up a box and produced a small monkey dressed in a black and red\nleather suit. Jillian said, \xe2\x80\x9cSay hello to the man Mr. Giggles.\xe2\x80\x9d Jillian stated that she wanted to leave the\nhouse to Mr. Giggles so that he could have some place to live after she died. She also said that she\nwas disinheriting her only daughter, Anne, because Anne was trying to kill Mr. Giggles. What should\nthe lawyer do? If he executes the will, what are the chances that Anne will be able to successfully\nchallenge Jillian\xe2\x80\x99s capacity? What additional information do you need to answer this question?\n(b) Roger, a 77 year old widow, suffered from anxiety disorder. In addition to therapy, Roger\xe2\x80\x99s\ndoctor gave him a prescription for medical marijuana and told him to smoke two joints a day. Roger\nhad three children, Lester, Nathan and Charmaine. Every morning Charmaine made Roger a green\nsmoothie. She put powered wheatgrass in the smoothie to give Roger an energy boost. Diane,\nRoger\xe2\x80\x99s neighbor, told him that she heard Dr. Oz say that wheatgrass caused cancer. Diane wore a\nhearing aid, so she missed the fact that Dr. Oz actually said that wheatgrass helped prevent cancer.\nRoger refused to drink the smoothie if Charmaine put the wheatgrass in it, so Charmaine started\n88\n\nDoughtery v. Rubenstein, 914 A.2d 184, 193-94 (Md. 2007).\n\n436\n\n\x0cslipping the wheatgrass on his salads. One day, Roger saw Charmaine sprinkle something on his\nsalad. He told Lester that Charmaine was trying to kill him. Lester confronted Charmaine and she\ntold him that she put wheatgrass on Roger\xe2\x80\x99s salad to give him energy. In order to convince Roger\nthat she was not trying to kill him. Charmaine sprinkled the wheatgrass on the salad and ate half of\nit. In response, Roger said, \xe2\x80\x9cYou took the anecdote to the poison, so you won\xe2\x80\x99t die. The moment I\neat it I\xe2\x80\x99m a goner.\xe2\x80\x9d Lester had the powder analyzed at a private lab and showed Roger the results. In\nresponse, Roger said, \xe2\x80\x9cYou\xe2\x80\x99re in it with her. You are both dead to me.\xe2\x80\x9d The next day, Roger\nchanged his will, and left his entire estate to Nathan. After Roger died, Lester and Charmaine filed\nan action to set aside the will because it was a product of an insane delusion. What are the strongest\narguments on each side? How might the court decide the case?\n(c) Paige was a ninety-two year old widow who still maintained her own home. She had two sons\nClyde and Beau, and a daughter Jeannette. Paige\xe2\x80\x99s son, Jackson, predeceased her; Jackson was\nsurvived by a wife, Marie, and two children, Bernard and Lillie. Because of her poor eyesight and a\ndegenerative muscle disease that caused her hands to shake, Paige relied solely on her unmarried\nson, Beau, to pay her bills, to take her grocery shopping and to take her to doctor appointments.\nPaige\xe2\x80\x99s daughter, Jeannette lived in Spain. Paige refused to accept any assistance from Clyde because\nhe did not \xe2\x80\x9cdo as he was told and divorce his wife, Janet.\xe2\x80\x9d Paige thought Clyde was weak, unduly\nprotective of Janet, and inattentive to Paige\xe2\x80\x99s needs. Paige\xe2\x80\x99s dislike of Janet stemmed from an\noverheard telephone conversation between Janet and a man, which had taken place five years earlier.\nUpon overhearing the conversation, Paige assumed Janet was having an affair with another man.\nPaige confronted Clyde with the information. Clyde explained to Paige that the overheard telephone\nconversation was between Janet and her brother, Alan, who was planning to visit them. He\nexplained that Janet was only arranging a time to pick Alan up from the airport. Clyde also tried to\nexplain to Paige that it was natural for Janet to tell her brother that she loved him. Although Clyde\xe2\x80\x99s\nversion of the story was the truth, Paige refused to believe it. She insisted that Clyde divorce Janet.\nClyde refused to get a divorce, so Paige stopped speaking to him. On a trip to her doctor\xe2\x80\x99s office,\naccompanied by Beau, Paige indicated that, when she died, she wanted to leave all of her 1.2 million\ndollar estate to Beau. Beau thanked Paige and told her that, unlike his brother Clyde who would\nprobably spend all of his mother\xe2\x80\x99s money buying luxuries for Janet, he would truly appreciate the\nproperty. At that time, Beau neglected to tell Paige that he was having an affair with Janet. Paige\nchanged her will and left her entire estate to Beau. She told her lawyer she was making the change\nbecause Janet was an adulteress. After Paige died, Clyde and Jeannette filed an action to set aside the\nwill because it was a product of an insane delusion. What are the strongest arguments on each side?\nHow might the court decide the case?\n(d) Amanda Nelson, a 52 year old single woman, was a member of a religious sect called Keepers of\nthe Light. Amanda and other members of the religion worshiped Yaka, a firefly, and his children.\nThe group believed that one day they would be rewarded by being physically transformed into his\nimage. Phillip, the head of the sect, told the members that in order to receive their reward, they had\nto leave all of their worldly goods to Keepers of the Light. Thus, Amanda executed a will leaving her\nentire 20 million dollar estate to Phillip. After Amanda died, her sisters, Tina and Carmen, filed an\naction challenging the validity of her will. What is the possible outcome?\n\n437\n\n\x0cChapter Ten: Testamentary Capacity (Undue Influence, Duress and Fraud)\n10.1\n\nIntroduction\n\nA testator\xe2\x80\x99s ability to execute a will may be negatively impacted by the actions of third\nparties. The cases in this chapter involve situations where third parties attempt to manipulate the\ntestator in some way. The level of influence that the third party exerts on the testator varies.\nNonetheless, the third party\xe2\x80\x99s motivation is to get the testator to execute a will that reflects his or\nher desires instead of the testator\xe2\x80\x99s wishes. The three most common types of manipulations include\nundue influence, duress and fraud. Since duress is a form of undue influence, the concepts will be\ndiscussed in the same section. Following the discussion of undue influence and duress, the chapter\nincludes an examination of fraud. The chapter ends with a discussion of a relatively new tort,\nintentional interference with an inheritance expectancy.\n10.2\n\nUndue Influence/Duress\n\nThe law does not expect a testator to make estate planning decisions in isolation. Given\nfamily dynamics, it is understandable that the testator may discuss his or her estate planning ideas\nwith family members. In addition, it is not uncommon for a testator to have a closer relationship\nwith some family members than he or she has with others. Thus, the testator is bound to be\ninfluenced by the opinions of some members of his or her family. Under the law, some influence is\nacceptable; problems occur when the testator is unduly influenced. The legislatures and the courts\nhave not provided a bright line rule for determining how much influence is too much. The test is\nwhether such control was exercised over the mind of the testator as to overcome his or her free\nagency and to substitute the will of another person so as to cause the testator to do what he or she\nwould not have done had the influence not existed.\n10.2.1 Presumption of Undue Influence\nNormally, the person who is challenging the will has the burden of proving that the will was\na product of undue influence. This changes if a presumption of undue influence arises. The person\ncontesting the will can establish a presumption of undue influence if he or she is able to show (1) the\nexistence of a confidential relationship; (2) the persons with the confidential relationship received\nthe bulk of the estate; and (3) the testator had a weakened intellect. All three of these elements are\nsubjective and evaluated on a case-by-case basis. If the court finds a presumption of undue\ninfluence, the burden shifts to the proponent of the will. That person has to overcome the\npresumption by providing clear and convincing evidence that he or she acted in good faith. A\npresumption of undue influence may also arise when an attorney receives a bequest under the terms\nof a will that he drafts unless he or she is closely related to the testator.\n\n438\n\n\x0cNoblin v. Burgess, 54 So.3d 282 (Miss. 2010)\nMAXWELL, J., for the Court:\nRobert H. \xe2\x80\x9cBob\xe2\x80\x9d Noblin executed his last will and testament only hours before his death. The\nproponents of the will and the sole beneficiaries under it, Sammy Burgess and Sheila McDill,\ninitiated probate proceedings in Smith County. Noblin\xe2\x80\x99s numerous heirs at law contested the will,\nasserting it was the product of undue influence. The trial court granted the contestants\xe2\x80\x99 request for a\njury trial, and the jury returned a verdict in favor of the proponents.\nOn appeal, the contestants contend that a confidential relationship existed between the testator and\nthe proponents, raising a presumption of undue influence. They argue the proponents failed as a\nmatter of law to overcome this presumption by clear and convincing evidence. In the alternative, the\ncontestants claim the trial court erred in peremptorily instructing the jury that the testator possessed\ntestamentary capacity. They also argue the trial court erred in failing to grant their proposed\nperemptory instruction, which would have directed the jury to find the existence of a confidential\nrelationship.\nWe find no reversible error and affirm.\nFACTS\nNoblin died in the early morning hours of October 3, 2003. He left behind no close \xe2\x80\x9cblood\xe2\x80\x9d\nrelatives. Noblin\xe2\x80\x99s closest relatives by consanguinity appear to be an aunt and an uncle. His uncle is\none of the contestants along with multiple first cousins. The proponents, Burgess and McDill, are\nNoblin\xe2\x80\x99s stepchildren. Noblin\xe2\x80\x99s only wife, who passed away in 1994, was the natural mother of\nBurgess and McDill. But because Noblin never adopted Burgess or McDill, they bear no relationship\nto him under Mississippi\xe2\x80\x99s law of intestate succession.\nAlthough Noblin did not make a will until the final hours of his life, he had named Burgess and\nMcDill as contingent beneficiaries (entitled to payment if his spouse predeceased him) on his\nindividual retirement accounts (IRAs) and certificates of deposit. In 1989, Noblin listed Burgess and\nMcDill as his \xe2\x80\x9cson\xe2\x80\x9d and \xe2\x80\x9cdaughter\xe2\x80\x9d on his IRA applications.\nOn September 23, 2003, Burgess took Noblin to see a doctor because Noblin had been having\nphysical problems. Burgess later took Noblin to Lackey Memorial Hospital in Forest, Mississippi.\nWhile there, Noblin\xe2\x80\x99s doctors determined he had widespread liver and pancreatic cancer. Shortly\nafter this diagnosis, Burgess drove Noblin to Baptist Hospital in Jackson, Mississippi. Soon after\nNoblin\xe2\x80\x99s arrival, his physicians determined he had no treatment options other than taking\nmedication to control his pain. Noblin remained at Baptist Hospital from September 29 until he\ndied on October 3. Burgess and McDill attended to Noblin during these five days and took turns\nspending the night with him.\nOn October 1, 2003, Burgess called Todd Sorey, an attorney back home in Smith County. The call\nwas placed from Noblin\xe2\x80\x99s hospital room, where only Noblin and Burgess were present. According\nto Burgess, he contacted Sorey at Noblin\xe2\x80\x99s request. Burgess asked Sorey to draft Noblin\xe2\x80\x99s will, and\nSorey agreed to do so. Both McDill and Burgess testified that it was Noblin\xe2\x80\x99s idea, and not their\n439\n\n\x0cown, to make the will. Noblin never spoke with Sorey directly over the phone. Instead, Burgess\ntalked to Sorey on the phone and relayed information back and forth between Sorey and Noblin.\nAccording to Burgess, McDill, and Sorey, Noblin had a severe hearing problem and was unable to\npersonally speak to Sorey over the telephone.\nSorey testified he could hear Noblin responding to his questions. He also heard Noblin speaking\nabout the information he wanted in his will. According to Sorey, he had known Noblin most of his\nlife and was familiar with his voice. Sorey claimed that he could hear Noblin\xe2\x80\x99s voice over the phone.\nHe recognized the tone, vernacular, and accent as Noblin\xe2\x80\x99s. Sorey maintained he had no doubt that\nhe was speaking to Noblin, albeit with Burgess as an intermediary. Sorey testified that he heard\nNoblin express his desire to leave all his property to Burgess and McDill.\nAfter this phone conversation, Sorey drafted a will leaving Noblin\xe2\x80\x99s entire estate to Burgess and\nMcDill. McDill picked up the will at Sorey\xe2\x80\x99s office on October 2 and brought it back to the hospital\nin Jackson. Burgess then asked Noblin\xe2\x80\x99s nurse, Lynn Thornton, to find hospital employees to\nwitness the will. Thornton herself agreed to witness the will. She recruited Corley Callum, also a\nregistered nurse, to fill the role of the other attesting witness.\nOf the two attesting witnesses, only Callum testified at trial. According to Callum, immediately\nbefore witnessing the will, she had a conversation with Noblin. Though she could not remember the\nexact exchange, she satisfied herself that Noblin\xe2\x80\x99s will reflected his intent. Callum testified that\nthrough her conversations with Noblin at the time the will was executed, she was able to verify that\n\xe2\x80\x9cwhat was taking place was what he wanted to do.\xe2\x80\x9d\nNoblin executed his will on the afternoon of October 2 sometime between 12:00 p.m. and 3:00 p.m.\nHe died at 12:10 a.m. on October 3.\nPROCEEDINGS AND DISPOSITION IN THE TRIAL COURT\nFollowing Noblin\xe2\x80\x99s death, Burgess and McDill initiated probate proceedings in the Smith County\nChancery Court. The contestants filed a will contest and requested a jury trial. The chancellor then\ntransferred the case to Smith County Circuit Court, where a jury trial was held.\nThe trial judge granted a directed verdict in favor of the proponents on the issue of testamentary\ncapacity. The trial court later gave a peremptory instruction for the jury to find the testator\npossessed the requisite capacity to make a will. The court, however, submitted to the jury the issues\nof (1) whether a presumption of undue influence arose by virtue of a confidential relationship\nbetween the testator and the proponents, and (2) whether clear and convincing evidence existed to\novercome the presumption of undue influence. The trial court denied the contestants\xe2\x80\x99 request for a\nperemptory instruction on issue (1).\nFollowing a three-day trial, the jury found in favor of the proponents, and the trial court entered a\njudgment reflecting the jury\xe2\x80\x99s decision.\nSTANDARD OF REVIEW\nIn reviewing a jury verdict, we apply the following standard:\n440\n\n\x0c[An appellate court] resolves all conflicts of evidence in the appellee\xe2\x80\x99s favor and\ndetermines all reasonable inferences from testimony given towards the appellee\xe2\x80\x99s\nposition. Reversal occurs only where the facts presented are so overwhelming in\nthe appellant\xe2\x80\x99s position that reasonable jurors could not have found for the\nappellee. When an appellant challenges the sufficiency of evidence to support a\njury\xe2\x80\x99s verdict, the appellate court\xe2\x80\x99s scope of review is limited. All evidence must\nbe reviewed in the light most favorable to the appellee. An appellate court may\nonly reverse a jury verdict when the facts considered in that light point so\noverwhelmingly to the appellant\xe2\x80\x99s position that reasonable men could not have\narrived at a contrary verdict. In the event that evidence is conflicting, a jury is the\nsole judge of the credibility of witnesses and the weight of their testimony.\nIn re Estate of Dabney v. Hataway, 740 So.2d 915, 919 (Miss. 1999) (internal citations and quotation\nmarks omitted).\nDISCUSSION\nI. Undue Influence\nThe contestants\xe2\x80\x99 first and main contention is that the proponents presented insufficient evidence to\novercome the presumption of undue influence, which they allege arose by virtue of a confidential\nrelationship. On this ground, they ask this Court to reverse and render the judgment of the trial\ncourt.\nA. Presumption of Undue Influence\nIn Croft v. Alder, 237 Miss. 713, 115 So.2d 683 (1959), our supreme court crafted the confidential\nrelationship doctrine applicable to wills contested on the basis of undue influence. Robert A.\nWeems, Wills and Administration of Estates in Mississippi \xc2\xa7 8: 18 (3rd ed. 2003). The Croft court held a\npresumption of undue influence arises where: (1) a confidential relationship existed between the\ntestator and a beneficiary, and (2) the beneficiary in the confidential relationship was actively\ninvolved in some way with preparing or executing the will. Croft, 237 Miss. at 722-23, 115 So.2d at\n686. A confidential relationship is present where \xe2\x80\x9cone person is in a position to exercise dominant\ninfluence upon the other because of the latter\xe2\x80\x99s dependency on the former arising either from\nweakness of mind or body, or through trust.\xe2\x80\x9d In re Estate of Laughter v. Williams, 23 So.3d 1055, 1063\n(Miss. 2009). (citation omitted).\nB. Overcoming the Presumption of Undue Influence\nCroft also established that once the required showing is made to raise the presumption of undue\ninfluence, the burden shifts to the proponents to rebut the presumption by clear and convincing\nevidence. Croft, 237 Miss. at 723, 115 So.2d at 686.\nIn order to overcome the presumption of undue influence, the proponents must show by clear and\nconvincing evidence: (1) the beneficiary acted in good faith; (2) the testator had \xe2\x80\x9cfull knowledge and\n441\n\n\x0cdeliberation\xe2\x80\x9d in executing the will; and (3) the testator exhibited \xe2\x80\x9cindependent consent and action.\xe2\x80\x9d\nIn re Last Will and Testament and Estate of Smith v. Averill, 722 So.2d 606, 612 (Miss. 1998). Factors to\nbe considered in assessing the beneficiary\xe2\x80\x99s good faith include:\n(1) who initiated the procurement of the will;\n(2) where the testator executed the will and who was present at the execution;\n(3) what consideration was paid and who paid it; and\n(4) whether the execution was done in secrecy or openly.\nSee id. Factors to be assessed in determining the testator\xe2\x80\x99s knowledge and deliberation in executing\nthe will include:\n(1) whether the testator was aware of his total assets and their worth;\n(2) whether the testator understood who his \xe2\x80\x9cnatural inheritors\xe2\x80\x9d were;\n(3) whether the testator understood how his action would legally affect prior wills;\n(4) whether the testator knew non-relative beneficiaries would be included; and\n(5) whether the testator knew who controlled his finances and the method used:\n(a) how dependent the testator is on persons handling his finances; and\n(b) how susceptible the testator is to be influenced by any such persons.\nSee id.\nRegarding the testator\xe2\x80\x99s \xe2\x80\x9cindependent consent and action,\xe2\x80\x9d unlike the other two prongs, there is no\nexpress list of factors. The supreme court has in the past required a showing that the testator acted\non \xe2\x80\x9c[a]dvice of ... [a] competent person, ... disconnected from the [beneficiary] and ... devoted\nwholly to the ... testator\xe2\x80\x99s interest.\xe2\x80\x9d Murray v. Laird, 446 So.2d 575, 578 (Miss. 1984). Though still a\nrelevant consideration, this requirement has been absolved by more recent precedent, which has\ninstead required \xe2\x80\x9ca showing of the grantor\xe2\x80\x99s \xe2\x80\x98independent consent and action\xe2\x80\x99 based on all of the\nsurrounding facts and circumstances.\xe2\x80\x9d Vega v. Estate of Mullen, 583 So.2d 1259, 1264 (Miss. 1991).\n1. Good Faith\nOther than inferences that might be drawn from circumstances surrounding the will\xe2\x80\x99s procurement,\nthe contestants produced no evidence that Burgess or McDill influenced Noblin\xe2\x80\x99s decision to make\na will or suggested the terms of the will. In fact, the evidence points to the contrary. Burgess and\nMcDill both testified that the idea of making a will originated with Noblin. Burgess testified Noblin\nwanted him to contact Sorey to draft a will. Sorey testified he could clearly identify Noblin\xe2\x80\x99s voice\nover the phone, and Noblin expressed his desire to leave all of his property to Burgess and McDill.\nSorey explained he was satisfied the will embodied Noblin\xe2\x80\x99s wishes. And just prior to the will\xe2\x80\x99s\nexecution, Callum had a conversation directly with Noblin. Through this conversation, she\nascertained the will\xe2\x80\x99s provisions reflected his intent.\nWhile we recognize much of this testimony is self-serving, our law is clear that witness credibility\ndeterminations are for the jury. See, e.g., Solanki v. Ervin, 21 So.3d 552, 568 (Miss. 2009). Burgess,\nMcDill, and Sorey, in particular, were all vigorously cross-examined about the circumstances\nsurrounding the making of the will.\nIt is not disputed that Noblin executed his will in a hospital room. Noblin signed the will in the\n442\n\n\x0cpresence of Burgess and McDill, as well as the two subscribing witnesses, Callum and Thornton.\nGail Young, a hospital employee, was present to notarize documents. As to the consideration paid,\nSorey testified he would have sent the bill for Noblin to pay but was unable to do so. According to\nSorey, no one ever told him they would pay his fee for drafting the will, and no one ever paid it.\nFinally, there is no indication the execution was done in secrecy. The issue here is not whether the\nheirs had knowledge of the will\xe2\x80\x99s execution, but whether the \xe2\x80\x9cthe physical place the will was\nexecuted was in plain view of the witnesses.\xe2\x80\x9d Estate of Smith, 722 So.2d at 613. Here, Callum testified\nshe saw Noblin sign the will. The contestants offered no contrary evidence to show the execution\nwas in any way concealed from the view of the attesting witnesses or done in a secretive manner.\n2. Knowledge and Deliberation\nUnder this prong, the proponents offered a great deal of evidence that Noblin managed and\ncontrolled his own personal affairs and finances. At least eight witnesses testified in support of the\nfact that Noblin was an extraordinarily independent person. Several of the contestants even testified\nto this fact. For example, contestant Henry Clay Noblin described Noblin as an \xe2\x80\x9cindependent[ ]\nloaner [sic], off to his self [sic] fellow, [who] did his own work.\xe2\x80\x9d According to contestant Diane\nBoykin, Noblin \xe2\x80\x9cmade up his own mind about things,\xe2\x80\x9d and \xe2\x80\x9c[i]t was his way or no way. So, if you\nasked him something and he answered, that was ... law.\xe2\x80\x9d Finally, contestant Ronnie Noblin\ndescribed Noblin as \xe2\x80\x9cstrong-willed.\xe2\x80\x9d\nTwo non-relative acquaintances of Noblin\xe2\x80\x99s also echoed these sentiments. According to David\nGainey, who had known Noblin since childhood, Noblin \xe2\x80\x9cpretty much stuck to himself as far as his\nbusiness was concerned\xe2\x80\x9d and \xe2\x80\x9cmade up his own mind.\xe2\x80\x9d Joe Rigby, a friend of Burgess\xe2\x80\x99s, testified\nthat Noblin \xe2\x80\x9cwas [the] kind of person that stayed to himself and took care of Bob.\xe2\x80\x9d As contestant\nBoykin put it, Noblin had garnered the nickname\xe2\x80\x94\xe2\x80\x9cone way Bob.\xe2\x80\x9d\nAccording to McDill and Burgess, this independence extended to financial matters as well. Although\nwe find no specific proof of what Noblin knew of his total assets, the testimony of Burgess and\nMcDill supports that Noblin took care of his own finances. Both Burgess and McDill asserted they\ndid not own a joint account with Noblin or assist Noblin in writing checks.\nThere is little or no proof to show Noblin either did or did not understand who his intestate heirs\nwere. Also, no prior wills existed for the subject will to effect.\n3. Independent Consent and Action\nAgain, other than inferences that might be drawn from the procurement of the will, especially from\nBurgess\xe2\x80\x99s telephone call to Sorey, the evidence points to the fact that Noblin exercised his own\nindependent consent and action with regard to the making of the will and its terms. Callum\xe2\x80\x99s\ntestimony, as a disinterested person, is of course very significant on this factor. Callum testified to\nthe following:\nQ: Okay. Once you walked into the room, did you have any conversations with Mr. Noblin?\nA: I don\xe2\x80\x99t remember the exact words or exact conversation that I had with Mr. Noblin, but I\ndid have a conversation with him, yes.\nQ: Okay, what were your conversations about?\nA: I\xe2\x80\x99m sure the usual exchanges of, you know, hey, Mr. Noblin, how are you doing, that kind of\n443\n\n\x0cthing took place originally; and then, you know, verifying that what was taking place was what\nhe wanted to do.\nQ: Okay. And did you satisfy yourself that that\xe2\x80\x99s what he wanted to do?\nA: I did, through the questions that I asked him, yes.\nCallum remained in the room for approximately thirty minutes during the execution of the will.\nDuring cross-examination, Callum added, \xe2\x80\x9cI\xe2\x80\x99m not going to sign my name to any document that I\nfeel is deceitful. I read the will [,] and I made my own judgment based on the questions that I asked\nMr. Noblin.\xe2\x80\x9d After reading the will, remaining in the room for half an hour, and having a\nconversation with Noblin, Callum \xe2\x80\x9csatisfied [herself] knowing that [she] was doing what Mr. Noblin\nwanted done.\xe2\x80\x9d She then observed Noblin sign his will.\nUnder these circumstances, we find a factual question on which reasonable minds could differ. The\ntrial court did not err in refusing to hold the presumption of undue influence could not be overcome\nas a matter of law. The trial court properly submitted this issue to the jury.\n\nIn re Estate of Saucier, 908 So. 2d 883 (Miss. Ct. App. 2005)\nISHEE, J., for the Court.\nThis will contest was brought before the chancery court of Forrest County on August, 14, 2003,\nwhen the Appellant, James Saucier (\xe2\x80\x9cSaucier\xe2\x80\x9d), the father of Jerry Saucier, deceased, filed his petition\nto probate the will in common form. Appellee Susan W. Tatum (\xe2\x80\x9cTatum\xe2\x80\x9d), filed her petition to\nprobate a will and letters testamentary of another will purported to be the last will and testament of\nJerry Saucier on August 18, 2003. On March 3, 2004, final judgment was entered in favor of Tatum\nand the will she supported was entered into probate. Aggrieved by this judgment, Saucier appealed.\nFinding no error, we affirm.\nFACTS\nThe testator, Jerry Saucier (\xe2\x80\x9cJerry\xe2\x80\x9d), was thirty-seven years of age at the time of his death on August\n9, 2003. His death was the result of congestive heart failure due to alcoholic cardiomyopathy. During\nhis life, Jerry executed two documents which were later produced and submitted to probate. The\nfirst will, later propounded by the Appellant, was a holographic document dated January 27, 2002.\nThe second will was a typewritten will dated January 27, 2003, leaving all of Jerry\xe2\x80\x99s property, both\nreal and personal, to Tatum. There is no dispute as to the authenticity of the two wills presented for\nprobate.\nUnder the holographic will the balance of Jerry\xe2\x80\x99s estate would have passed to his son, from whom\nJerry was estranged at the time of his death. At trial, Saucier challenged the second will put forth by\nTatum on the grounds that the will was the product of Tatum\xe2\x80\x99s undue influence over Jerry at the\ntime it was executed. The facts presented at trial regarding the close relationship between Tatum and\nthe decedent established that Tatum provided care and assistance to Jerry as his health declined by,\nfor example, cleaning his house and by taking him to detoxification programs and psychiatric\nappointments. Tatum and Jerry also dated at least one year prior to his death. Testimony at trial\nillustrated that the pair saw each other every day of the year prior to his death, that they were\n444\n\n\x0cphysically intimate, and that at some point the pair had made plans to marry. Tatum was heavily\ninvolved in preparing his will. Tatum located and provided the form used for the second will, and\naccompanied Jerry to the bank where the instrument was executed. Upon learning that the will had\nnot been properly executed, Tatum brought Jerry to the bank a second time in order to affect a valid\nexecution.\nAfter hearing all testimony in the matter, the trial court found that Tatum \xe2\x80\x9cplayed an instrumental\npart in seeing that the will was created....\xe2\x80\x9d While Jerry admitted to his father that he consumed\napproximately one-fifth of whisky a day, there was no testimony that Jerry was intoxicated at the\ntime of the preparation and execution of his will. Witnesses from the bank where the instrument was\nexecuted provided that they thought Jerry was competent at the time of the execution, and that\nwhile present, Tatum did not appear to be an active or interfering force in the execution of the will.\nThe judgment entered by the chancery court found that the will propounded by Tatum was not the\nresult of undue influence, and allowed the document to be entered into probate. Aggrieved by this\ndecision, Saucier asserts the following errors on appeal: (1) whether the chancery court erred in\nfailing to find that the second will was the product of undue influence by Tatum; and (2) whether\nTatum failed to rebut the presumption of undue influence by clear and convincing evidence.\nISSUES AND ANALYSIS\nI. Whether the chancery court erred in failing to find that the second will was the product of\nundue influence by Tatum.\nSaucier asserts that the trial court erred in failing to find that second will was the product of undue\ninfluence. Saucier asserts specifically that the relationship between Tatum and Jerry was confidential\nand that Tatum was instrumental in the formation of the second will, thereby creating a presumption\nof undue influence. We begin our analysis of this issue by noting the standard of review. \xe2\x80\x9cWhen\nreviewing a chancellor\xe2\x80\x99s legal findings, particularly involving the interpretation or construction of a\nwill, this Court will apply a de novo standard of review.\xe2\x80\x9d In re Last Will and Testament of Carney, 758\nSo.2d 1017, 1019 (Miss.2000). With respect to a chancellor\xe2\x80\x99s findings of fact in a will contest, this\nCourt has held that it \xe2\x80\x9cwill not disturb the findings of a chancellor unless he is manifestly wrong,\nclearly erroneous, or applied an erroneous legal standard.\xe2\x80\x9d Goode v. Village of Woodgreen Homeowners\nAss\xe2\x80\x99n, 662 So.2d 1064, 1070 (Miss. 1995).\n\xe2\x80\x9cIn an action contesting a will, a presumption of undue influence arises where there is a confidential\nor fiduciary relationship.\xe2\x80\x9d In re Fankboner v. Pallatin, 638 So.2d 493, 495 (Miss. 1994) (citing Mullins v.\nRatcliff, 515 So.2d 1183, 1192 (Miss. 1987 \xe2\x80\x9cSuspicious circumstances, along with the confidential\nrelationship, also give rise to a presumption of undue influence.\xe2\x80\x9d Id. (Citing Estate of Lawler v. Weston,\n451 So.2d 739, 741 (Miss. 1984)).\nSaucier argues on appeal that a confidential relationship, as well as suspicious circumstances, created\nsuch a presumption of undue influence in this case, and that as such, Tatum should have been\nforced to rebut that presumption by clear and convincing evidence.\nThe factors utilized by this court to determine whether a confidential relationship existed are as\nfollows:\n445\n\n\x0c(1) whether one person has been taken care of by others, (2) whether one person\nmaintains a close relationship with another, (3) whether one person is provided\ntransportation and has their medical care provided for by another, (4) whether\none person maintains joint accounts with another, (5) whether one is physically\nor mentally weak, (6) whether one is of advanced age or poor health, and (7)\nwhether there exists a power of attorney between one and another.\nIn re Estate of Dabney, 740 So.2d 915, 919 (Miss.1999). In examining factor one, Tatum\xe2\x80\x99s own\ntestimony established that she provided assistance and care to Jerry. However, in many instances,\ndespite his alcoholism, Jerry was capable of caring for himself in a manner common to functional\nalcoholics. Because the parties saw each other on a daily basis, were physically intimate, and had\nmade some generalized plans to marry, these facts clearly indicate that a close relationship was\nmaintained between Jerry and Tatum in regards to factor two. While Tatum did provide\ntransportation for Jerry, most notably during the formation of the will, this was mostly due to the\nfact that Jerry\xe2\x80\x99s license had been suspended. There is some evidence to suggest that Tatum\ntransported Jerry to a handful of psychiatric appointments, and provided other more generalized\nassistance as considered by factor three. As to factor four, there is no evidence to suggest that Jerry\nand Tatum held joint accounts, although we note that Jerry entrusted Tatum with the keys to his\nsafety deposit box. As to factor five, Jerry was physically ravaged by his alcoholism. However,\nwhether Jerry was mentally weak presents a closer question. Saucier asserts on appeal that Jerry\xe2\x80\x99s\nliquor consumption, and a past incident where police were called to his home after a bout of\nhallucinations evidences Jerry\xe2\x80\x99s weakened mental state. Saucier also claims that Jerry \xe2\x80\x9cbadly\nmismanaged\xe2\x80\x9d some apartments owned by his father. Finally, Saucier cites the statement of Jerry\xe2\x80\x99s\npsychiatrist who observed that he was \xe2\x80\x9cshaky, tremulous,\xe2\x80\x9d and that Jerry \xe2\x80\x9cjust seemed\nuncomfortable.\xe2\x80\x9d\nTatum has put forth ample evidence to indicate that Jerry was fully capable of conducting his own\naffairs, was able to manage his own business and employees, and for the most part was competent to\nhandle his own affairs. In fact, his own psychiatrist, Shannon Johnson, stated that Jerry was \xe2\x80\x9cin his\nright mind.\xe2\x80\x9d Although Jerry evidenced specific instances of mental weakness, the weight of the\nevidence mitigates against finding that he functioned within a continually weakened mental state. As\nto factors six and seven, we note that Jerry was in a weakened physical state, and that no power of\nattorney was granted to Tatum by Jerry.\nTaking all of the Dabney factors as a whole, it is clear that the relationship between Jerry and Tatum\nwas confidential in nature. Furthermore, the chancellor found that Tatum was \xe2\x80\x9ca moving force\xe2\x80\x9d in\nthe creation of the second will. The confidential relationship of the parties and Tatum\xe2\x80\x99s role in the\ncreation of the will suffice to create a presumption of undue influence. Furthermore, according to\nCroft, Tatum\xe2\x80\x99s status as a beneficiary under the will further bolsters this presumption. Croft, 115\nSo.2d at 686. Saucier is correct in stating that the chancellor failed to make any mention of this\npresumption within his judgment. However, this failure to state this presumption within the\njudgment or elsewhere in the record may not, in and of itself, compel us to hold that the chancellor\ncommitted reversible error. \xe2\x80\x9cEven where the specific basis of a decision is not stated in the\nchancellor\xe2\x80\x99s opinion, the decision will not be disturbed if substantial evidence can be found in the\nrecord.\xe2\x80\x9d M.C.M.J. v. C.E.J., 715 So.2d 774, 777 (Miss.1998). It is apparent from the chancellor\xe2\x80\x99s\nopinion that all of the requisite Dabney factors were considered within his deliberative process.\nAlthough the chancellor did not specifically state that a presumption of undue influence arose,\nsubstantial evidence of such can be found to support, at the very least, his consideration of the\n446\n\n\x0cmatter. We cannot say that the chancellor committed manifest error in his factual findings, and\nfurther hold that any legal error by the chancellor in this regard constitutes harmless error. We\ntherefore must affirm the chancellor as to this issue.\nII. Whether Tatum failed to rebut the presumption of undue influence by clear and\nconvincing evidence.\nSaucier asserts in his second assignment of error that Tatum failed to rebut the presumption of\nundue influence. In the case sub judice, due to the fact that the circumstances give rise to a\npresumption of undue influence, the burden off going forward with the proof shifted to Tatum to\nprove by clear and convincing evidence that (1) Tatum acted in good faith in the confidential\nrelationship with Jerry;\n(2) Jerry acted with full knowledge and deliberation of his actions and their consequences when he\nexecuted the second will; and (3) that Jerry exhibited independent consent and action. Murray v.\nLaird, 446 So.2d 575, 578 (Miss. 1984) as modified by Mullins v. Ratcliff, 515 So.2d 1183, 1193 (Miss.\n1987).\nTo determine whether Tatum acted in good faith, we must examine the facts surrounding the\nprocurement of the second will. It is undisputed that Tatum was instrumental in the drafting of the\nwill. However, she and Jerry worked together in this regard, and her role in drafting the will is not\nalone determinative of bad faith. Numerous disinterested persons witnessed the signing of the will.\nThe first subscribing witness to the will, Teressa Rogers, an assistant manager at the bank, testified\nthat she questioned Jerry regarding whether the will represented his wishes, and whether he wanted\nto sign the document. She further testified that Jerry answered both questions in the affirmative, and\nthat Jerry appeared to be in his right mind and was not intoxicated. The testimony of the second\nsubscribing witness, Jacque Forrester, was not heard as the parties stipulated that his testimony was\nmerely corroborative of the testimony of Rogers. \xe2\x80\x9cSecondly, the place of the execution of the will\nand the persons in whose presence the will was executed are significant.\xe2\x80\x9d In re Will of Fankboner, 638\nSo.2d at 496. The second will of Jerry Saucier was executed in the open at a branch of the Union\nPlanters Bank before two disinterested subscribing witnesses and a notary public. \xe2\x80\x9cThe third and\nfourth factors are the consideration/fee that was paid and the identity of the person who paid the\nfee.\xe2\x80\x9d Id. In this case, no consideration or fee was paid in the drafting of the will. The fifth and final\nfactor that should be considered to determine the \xe2\x80\x9cgood faith\xe2\x80\x9d of Tatum is the secrecy and\nopenness given the execution of the will. Id. The evidence before us is clear that the execution of the\nwill was open and well observed. We therefore find substantial evidence that supports a finding that\nTatum acted in good faith.\nWe now turn to the question of whether Jerry acted with full knowledge and deliberation of his\nactions and their consequences when he signed the will. The testimony of the subscribing witnesses\nis again pertinent in this regard. All of the testimony provided regarding the signing of the will at the\nbank indicated that Jerry was acting in accordance with his own wishes and of his own volition.\nThere is simply scant evidence to conclude that Tatum abused her relationship with Jerry either by\nasserting dominance over him or by substituting her intent for his. See In re Estate of Sandlin v. Sandlin,\n790 So.2d 850, 854 (Miss.Ct.App.2001) (discussing the level of influence that must be exerted over a\ntestator in order for the court to find undue influence). As to the third factor established in Murray,\nwe must determine whether Jerry exhibited independent consent and action. The evidence in this\ncase is legion toward establishing that Jerry exhibited independent consent and action, and that the\n447\n\n\x0csecond will represents his final wishes independent and free from of any undue influence by Tatum.\nThe evidence sub judice is clear and convincing in establishing that Tatum did not substitute her will\nfor Jerry\xe2\x80\x99s, and any presumption to the contrary is clearly rebutted in accordance with the\nrequirements of Murray. This assignment of error is without merit.\nThe judgment of the Chancery Court of Forrest County is affirmed.\nProblems\n1. In 1998, Jill, a 76 year old widow, was diagnosed with chronic pain syndrome. As a consequence,\nshe received a special permit to smoke medical marijuana. She smoked a couple of joints three times\na day. Jill had two children, Bailey and Scott. In 1999, Jill met Lydia, the founder and president of\nthe Institute for Chronic Pain. The women became friends and Lydia did volunteer work for the\nInstitute. Lydia, Jill and Marcia, the secretary at the Institute, often had lunch together. According to\nMarcia, during lunch one day in 2000, Lydia told Jill that if the Institute did not get more private\ndonations she would have to close it. In March of 2003, Jill mentioned to Lydia that she intended to\nmake a will. Lydia suggested that Jill contact Paul, Lydia\'s husband who was a private probate\nattorney. On March 23, 2003, Paul prepared Jill\'s will, leaving her entire estate to the Institute for\nChronic Pain. On April 10, 2003, Jill was killed in a car accident. Bailey and Scott filed an action to\nchallenge the validity of the will. What is the possible outcome?\n2. Before Samuel Mack, a rapper, released a new album he always consulted Madame Z, his psychic.\nIn 2007, Samuel was diagnosed with brain cancer. Madame Z gave Samuel several different types of\nherbs to counteract the nausea he experienced because of his chemotherapy treatment. As Samuel\xe2\x80\x99s\ndisease progressed, he became severely depressed and stopped associating with most of his friends\nand family. Susan, Samuel\xe2\x80\x99s wife, tried to get him to see a psychologist, but Samuel told her that he\ncould get all of the help that he needed from Madame Z. Madame Z gave Samuel herbs to ease his\ndepression. One day, Madame Z told Samuel that he had brain cancer because the universe was not\npleased with him. Madame Z predicted that Samuel would be cured if he started donating money to\ncharity. Samuel took Madame Z\xe2\x80\x99s advice and gave 2 million dollars to an organization that provided\nservices to the poor. Two months later, Samuel\xe2\x80\x99s doctors declared him to be cancer-free. After that,\nSamuel would not make any decisions without consulting Madame Z. In 2010, Samuel was excited\nwhen Susan gave birth to twin boys, Luke and Luther. In 2014, Samuel decided to execute a will. He\nconsulted Madame Z and asked her if she could recommend a good attorney. Madame Z pulled up\nthe yellow pages on the Internet, closed her eyes and touched the screen. Madame Z\xe2\x80\x99s finger landed\non the name, Sigmund Taylor, a sole practitioner who prepared wills. Susan objected to the selection\nof Sigmund because he had only been out of law school for two years. Madame Z insisted that\nSigmund was the one who should prepare Samuel\xe2\x80\x99s will, so Samuel contacted him. Susan refused to\naccompany Samuel to Sigmund\xe2\x80\x99s office, so he took Madame Z with him. Madame Z stayed in the\nwaiting room while Samuel and Sigmund discussed the terms of the will. In 2015, Samuel was killed\nwhen his private plane hit a mountain. At that time, Susan discovered that Samuel had left half of his\n100 million dollar estate to Madame Z. Susan filed an action challenging the validity of the will.\nWhat might be the possible outcome of the case?\n\n448\n\n\x0c10.2.2 Undue Influence\nIf the presumption of undue influence does not arise or the proponent of the will is able to\novercome the presumption of undue influence, the contestant has the burden of proving all of the\nelements of undue influence. To state a claim of undue influence the contestant must prove the\nexistence of the following: (1) the testator was susceptible to undue influence or domination by\nanother; (2) the person alleged to have committed the undue influence had the opportunity to\nexercise it; (3) the person alleged to have committed the undue influence had a disposition to\ninfluence for the purpose of personal benefit; and (4) the provisions of the will appear to be\nunnatural and the result of such influence.\n\nIn re Estate of Schoppe, 710 N.W.2d 258 (Iowa Ct. App. 2005)\nMILLER, J.\nBrenda Edmunds and Bryan Schoppe appeal from a district court order, following a jury verdict,\nthat set aside the will of their father, Clair Schoppe. They contend the jury\xe2\x80\x99s verdict, which found the\nwill was the result of undue influence, is not supported by substantial evidence. We affirm.\nI. Background Facts and Proceedings.\nClair and Kay Schoppe were the parents of three children: Bryan Schoppe, Brenda Edmunds, and\nBerwin Schoppe. In 1997 Clair and Kay executed \xe2\x80\x9cmirror wills.\xe2\x80\x9d Each will named the other spouse\nas the primary beneficiary and, in the event the beneficiary spouse predeceased the testator, the\nproperty left to the beneficiary spouse was to be divided equally between Brenda and Berwin, after a\nspecific bequest of $1,000 to Bryan. Kay was nominated as executor, and Brenda and Berwin were\nnominated as contingent co-executors.\nAt or about the time the wills were executed, both Bryan and Brenda had moved out of the family\nhome. Berwin continued to live with his parents until his mother\xe2\x80\x99s death in 2000. After Kay\xe2\x80\x99s death\nBerwin continued to live in the family home, taking care of the home and assisting Clair. Clair had\nvarious health problems, and had always been disinclined to take care of his own health and hygiene\nneeds. Following his wife\xe2\x80\x99s death Clair became even more reluctant to address these issues.\nClair\xe2\x80\x99s mental acuity also appeared to decline after Kay\xe2\x80\x99s death. Once highly adept at math, Clair\nnow had problems performing mental calculations. In addition, he occasionally seemed confused\nand unfocused, and repeated statements and questions multiple times. However, he was still able to\nconduct his own financial affairs, drive, and work as a dirt excavator.\nIn 2001 Clair Schoppe executed a new will. In it he made a specific bequest to Bryan of $10,000, and\nprovided Berwin a first option to purchase the acreage upon which they were living, including the\nhouse and outbuildings, for $100,000. The remainder of Clair\xe2\x80\x99s estate was to be divided equally\nbetween Brenda and Berwin. Brenda was nominated as executor, and a bank as contingent executor.\nIn March 2002 Clair suffered a stroke. Following the stroke Clair appeared to suffer an even greater\ndecline in his mental acuity. He also became even less attentive to his hygiene. As his health\n449\n\n\x0cconcerns increased, so too did his dependence on family members.\nIn the months following the stroke Berwin and Clair\xe2\x80\x99s relationship became increasingly strained.\nBerwin found it more and more difficult to get his father to address his health and hygiene needs. In\naddition, in August 2002 Brenda accused Berwin of abusing Clair. Berwin denied the abuse, but\nClair remained silent. This disturbed Berwin, and he began to make plans to move from the home.\nAccording to Berwin, Clair indicated he did not want Berwin to move. Berwin suggested that Clair\nsell him the acreage. The men reached a tentative agreement, but Clair backed away from the deal\nafter Brenda expressed a concern to her father that if Clair sold Berwin the acreage Berwin might\nforce Clair to leave the house.\nOn October 4 Berwin was in the process of removing his property from the family home when he\nwas served with a temporary protective order that restrained him from contacting his father or\nentering the family home. The order was entered pursuant to a petition for relief from domestic\nabuse that Clair had filed on October 3.\nAccording to Brenda, Clair arrived at her home the evening of October 2, upset and crying. The\nfollowing day Brenda took Clair to see attorney Chris Clausen, and then to the courthouse, where\nBrenda filled out the petition on Clair\xe2\x80\x99s behalf. The petition alleged Berwin had yelled at his father,\ngrabbed him by the front of the shirt, pushed him up against the counter, then let him go. It further\nalleged Clair had locked himself in the bathroom because Berwin was yelling at him, and that Berwin\nhad picked the lock on the door, entered the bathroom, continued to yell at Clair, and said he was\ngoing to continue harassing Clair and \xe2\x80\x9cmake it a living hell for\xe2\x80\x9d him. Clair initialed the\nacknowledgment section and signed the petition.\nBerwin denied the allegations in the petition, but agreed to the entry of a protective order that did\nnot contain a finding of domestic abuse. According to Berwin, he agreed to entry of the order\nbecause he felt he could no longer live with his father in any event, and he hoped that after the order\nexpired he and Clair would be able to work out their differences.\nOn December 27, 2002, Clair executed his final will. Brenda drove Clair to the office of his attorney,\nGail Boliver. Brenda waited in the reception area while Clair met privately with Boliver. Clair had\nprovided Boliver with a hand-altered version of the 2001 will. Boliver made the noted changes, and\nthe will was duly executed. The 2002 will now made a specific bequest to Berwin of $10.00, provided\nBryan the opportunity to purchase the acreage for one-half of its appraised value, and divided the\nremainder of Clair\xe2\x80\x99s estate equally between Bryan and Brenda. Brenda continued to be nominated as\nexecutor, with the bank as contingent executor.\nClair died less than two months later, on February 12, 2003. After the 2002 will was admitted to\nprobate, Berwin filed a petition to set the will aside. Berwin asserted Clair lacked the testamentary\ncapacity to make the will, and that the will was the result of undue influence. The matter proceeded\nto trial in December 2004. The jury returned a verdict finding that Clair had the mental ability to\nmake a will on December 27, 2002, but that the 2002 will was the result of undue influence. Brenda\nand Bryan filed a motion for a judgment notwithstanding the verdict, which was denied by the\ndistrict court.\nBrenda and Bryan appeal. They contend the record does not contain sufficient evidence to support a\nfinding of undue influence.\n450\n\n\x0cII. Scope and Standards of Review.\nA will contest is an ordinary action, tried at law. Iowa Code \xc2\xa7 633.33 (2003). Accordingly, our review\nis for the correction of errors at law. Iowa R.App. P. 6.4. We will uphold the district court\xe2\x80\x99s denial of\nthe motion for a judgment notwithstanding the verdict if the record contains substantial evidence to\nsupport the jury\xe2\x80\x99s verdict. See In re Estate of Bayer, 574 N.W.2d 667, 670 (Iowa 1998). We view the\nevidence in the light most favorable to upholding the verdict. Id.\nEvidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion.\nFalczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995). Evidence is not insubstantial simply\nbecause it supports different inferences, and a court cannot set aside a verdict merely because it\nwould have reached a different result. Bayer, 574 N.W.2d at 670. Weighing the evidence and\nassessing credibility are matters left to the jury. Id.\nIII. Discussion.\nUndue Influence is that which\nsubstitute[s] the will of the person exercising the influence for that of the\ntestator, thereby making the writing express, not the purpose and intent of the\ntestator, but that of the person exercising the influence. It must operate at the\nvery time the will is executed and must be the dominating factor.\nIn re Estate of Davenport, 346 N.W.2d 530, 531-32 (Iowa 1984) (citation omitted). The four essential\nelements of such a claim are\n(1) the testator susceptibility to undue influence; (2) opportunity to exercise such\ninfluence and effect the wrongful purpose; (3) disposition to influence unduly for\nthe purpose of procuring an improper favor; and (4) a result clearly the effect of\nundue influence.\nIn re Estate of Todd, 585 N.W.2d 273, 277 n. 4 (Iowa 1998).\nBerwin bore the burden of proving undue influence by a preponderance of the evidence. Id. at 277.\nWhile his claim can rest on circumstantial evidence alone, more than a \xe2\x80\x9cscintilla\xe2\x80\x9d of evidence is\nrequired. Bayer, 574 N.W.2d at 671. \xe2\x80\x9cMere suspicion, surmise, conjecture, or speculation is not\nenough to warrant a finding of undue influence, but there must be a solid foundation of established\nfacts upon which to rest an inference of its existence.\xe2\x80\x9d In re Will of Pritchard, 443 N.W.2d 95, 98\n(Iowa Ct.App. 1989).\nBrenda and Bryan assert that none of the four elements of undue influence are supported by\nsubstantial evidence. Upon a review of the record we conclude, as did the district court, that the\njury\xe2\x80\x99s verdict is sufficiently supported.\nA. Clair\xe2\x80\x99s Susceptibility to Undue Influence.\nDuring trial the parties vigorously disputed Clair\xe2\x80\x99s mental state. Berwin points to evidence that\nClair\xe2\x80\x99s physical health and mental acuity gradually declined and his dependence on others gradually\n451\n\n\x0cincreased, beginning with Kay\xe2\x80\x99s death in 2000, and accelerating following Clair\xe2\x80\x99s stroke in 2002.\nBrenda and Bryan assert that this evidence demonstrates no more than the natural processes of\naging and grieving. They point to evidence that Clair was always a stubborn man who knew his own\nmind, and testimony from attorneys Clausen and Boliver that the petition for relief from domestic\nabuse and the 2002 will appeared to be products of Clair\xe2\x80\x99s own wishes.\nAs previously noted, the weight and credibility to be assigned to the various items of evidence is a\nmatter for the jury. Bayer, 574 N.W.2d at 670. If the jury found Berwin\xe2\x80\x99s evidence on the question to\nbe more credible, and placed greater weight on that evidence than it did on the evidence presented\nby Brenda and Bryan, there is sufficient evidence in the record to demonstrate a physical and mental\nvulnerability that could render Clair susceptible to undue influence. See Davenport, 346 N.W.2d at 532\n(noting that both physical and mental weaknesses are relevant to show a tendency towards\nsusceptibility).\nB. Brenda\xe2\x80\x99s and Bryan\xe2\x80\x99s Opportunity to Exercise Undue Influence.\nIt is undisputed that Brenda and Bryan had significant contact with Clair in the weeks and months\nleading up to the execution of the 2002 will. This contact only increased following the petition for\nrelief from domestic abuse and resulting consent order, as Brenda supplanted Berwin as Clair\xe2\x80\x99s\nprimary caretaker. Brenda took Clair to nearly all of his doctor\xe2\x80\x99s appointments, Clair spent holidays\nat Bryan\xe2\x80\x99s home, and both Brenda and Bryan regularly spent additional time with their father.\nBrenda and Bryan contend, however, that these occasions were no more than the performance of\n\xe2\x80\x9cfamilial duties,\xe2\x80\x9d and do not rise to an opportunity to exercise undue influence. They cite to the case\nof In re Estate of Davenport, 346 N.W.2d 530, 532 (Iowa 1984), in support of their position.\nHowever, the language they rely on in Davenport relates only to the level of influence inherently\nexerted in the performance of \xe2\x80\x9cfriendship or familial duties,\xe2\x80\x9d and explains that such influence is not\nin and of itself the type of undue, \xe2\x80\x9ctainted,\xe2\x80\x9d or dominating influence necessary to set aside a will.\nDavenport, 346 N.W.2d at 532. The time Brenda and Bryan spent with their father was sufficient to\ncreate an opportunity to exert undue influence over Clair. See Id. at 531(concluding a four day visit,\noccurring a few weeks prior to will execution, was sufficient to establish an opportunity to exercise\nundue influence).\nC. Brenda\xe2\x80\x99s and Bryan\xe2\x80\x99s Disposition to Unduly Influence Clair.\nBrenda and Bryan point out there is no direct evidence they unduly influenced Clair\xe2\x80\x99s testamentary\ndispositions, and they both denied even attempting to do so. However, Brenda\xe2\x80\x99s and Bryan\xe2\x80\x99s denials\nneed not be believed by the jury. Moreover, as we have previously noted, the elements of undue\ninfluence may be proved through circumstantial evidence, Bayer, 574 N.W.2d at 671, so long as that\nevidence creates \xe2\x80\x9ca solid foundation of established facts upon which to rest an inference of its\nexistence,\xe2\x80\x9d Pritchard, 443 N.W.2d at 98.\nViewing the record in the light most favorable to upholding the verdict, it contains substantial\ncircumstantial evidence that, if believed, indicates Brenda had a strong dislike for Berwin and\nattempted to undermine his relationship with their father. In light of the fact that no evidence of\nabuse was ever produced, the record also substantially supports a determination that Brenda went so\nfar as to prompt Clair to falsely accuse Berwin of abuse in an effort to eject Berwin from Clair\xe2\x80\x99s life.\nIn light of the foregoing, it was reasonable for the jury to infer that Brenda was disposed to assert a\n452\n\n\x0cdominating influence over Clair in order to all but eliminate Berwin from Clair\xe2\x80\x99s will. The record\ncontains substantial evidence to support a finding that Brenda was disposed to unduly influence\nClair in order to procure an improper favor.\nD. Dispositions in 2002 Will Resulted from Undue Influence.\nClearly, the disposition in the 2002 will was a marked change from both the 1997 and 2001 wills, and\nalso provided for a patently unequal distribution of Clair\xe2\x80\x99s estate. Brenda and Bryan point out that\nwhile inequality in distribution is evidence of undue influence, generally such a distribution is not in\nand of itself sufficient to establish undue influence. See Davenport, 346 N.W.2d at 532. They contend\nthe record is bereft of any additional evidence to support a finding of undue influence, and that in\nfact the 2002 will simply reflects the natural decline in Berwin and Clair\xe2\x80\x99s relationship. While the\nrecord is susceptible to the interpretation Brenda and Bryan suggest, it is also susceptible to a\ncontrary interpretation. See Bayer, 574 N.W.2d at 670 (noting evidence is not insubstantial simply\nbecause it supports different inferences).\nOnce again, if the jury found Berwin\xe2\x80\x99s evidence more credible, and placed greater weight on it than\nthe evidence offered by Brenda and Bryan, the jury could conclude Berwin was a loving and dutiful\nson who spent years caring for his father, that Clair did not in fact want Berwin to move from the\nfamily home, that even though Berwin never abused his father Brenda was able to convince Clair to\nfile the petition for relief from domestic abuse, and that she did so in order to sever Berwin\xe2\x80\x99s ties\nwith their father. Moreover, the 2002 will was not executed until after entry of the no contact order,\nan order that prevented Berwin from contacting his father and resulted in Brenda becoming the\ncentral caretaking figure in Clair\xe2\x80\x99s life. Under those circumstances it was reasonable for the jury to\ninfer that the inequality in distribution was a product, not of Clair\xe2\x80\x99s intent, but of Brenda\xe2\x80\x99s undue\ninfluence.\nIV. Conclusion.\nThe parties have presented differing versions of events. Which of these versions is more credible,\nand entitled to more weight, is a matter for the jury. Viewing the evidence in the light most favorable\nto upholding the jury\xe2\x80\x99s verdict, we conclude the record contains evidence that would allow a\nreasonable fact finder to determine Clair\xe2\x80\x99s 2002 will was the product of undue influence. We\naccordingly uphold the district court order setting aside the 2002 will.\nAffirmed.\nNotes, Problems, and Questions\n1. Should there have been a presumption of undue influence in the Schoppe case?\n2. It is unclear what makes a person susceptible to undue influence. However, courts seem to focus\non the person\xe2\x80\x99s age, personality, physical and mental health and ability to handle business affairs. See\nIn re Kamesar, 259 N.W.2d 733, 738 (Wis. 1977). The level of dependency that the person has on\nother people also seems to be relevant. In the following situations, which of the testators should be\ndeemed to be susceptible to undue influence?\n\n453\n\n\x0c(a) Prior to executing her will, Karen was diagnosed with bipolar disorder.\n(b) Prior to executing his will, Bryon was blind in one eye and suffering from end-stage renal failure.\n(c) The court appointed a guardian to handle Daniel\xe2\x80\x99s personal and business affairs prior to the\nexecution of his will.\n(d) Prior to executing her will, Wanda had a stroke.\n3. In order to determine if the alleged influencer had the opportunity to influence the testator,\ncourts look at the amount of time that the person spent with the testator, the person\xe2\x80\x99s proximity to\nthe testator, and the nature of the relationship between the person and the testator. The opportunity\nelement is difficult to evaluate. In order to have the opportunity to influence, the person is usually\nspending a lot of time with the elderly person providing physical and emotional care. On the other\nhand, the person who is contesting the will is typically the person who has spent the least amount of\ntime with the testator. From a public policy perspective, we should want to encourage the former\nand not the later behavior.\n4. In order to satisfy the disposition element, the contestant has to show something more than the\nfact that the alleged influencer had a desire to obtain a share of the testator\xe2\x80\x99s estate. The disposition\nnecessary for a finding of undue influence implies that the alleged influencer was willing to do\nsomething wrong or unfair to insure that he or she receive a bigger share of the estate.\n5. Aileen and Lee were married and had two children, Colin and Frances. After Lee died, Colin\nmoved in with Aileen to help her put his father\xe2\x80\x99s affairs in order. Frances was estranged from her\nparents, so she did not attend Lee\xe2\x80\x99s funeral. Colin took Aileen to see an attorney who had done\nwork for him in order to have a will prepared for her. At that time, Aileen exhibited signs of\ndementia. She had begun to forget and exaggerate. The attorney thought that Aileen was paranoid\nand somewhat delusional, but concluded that she had testamentary capacity because she knew the\nobjects of her bounty and was oriented as to time and place. Aileen told the attorney that Frances\nhad stolen horses from her and had driven away her hired hand. She stated that she did not want\nFrances to receive any of her property. Aileen also told the attorney that the local sheriff and\neveryone in her county were on drugs. The attorney prepared a will leaving Aileen\xe2\x80\x99s entire estate to\nColin. When Aileen died, Frances filed an action contesting the will. What is the possible outcome\nof the case?\n10.2.3 Duress\nDuress is aggressive undue influence. In these cases, the wrongdoer threatens to perform or\nperforms a wrongful act that forces the donor to make a donative transfer that the donor does not\nwant to make. These types of cases are relatively rare. The coercive action may be physical or\nmental. For example, a child may threaten to place an elderly parent in a nursing home if the parent\ndoes not include certain provisions in his or her will. In extreme cases, the person seeking to inherit\nmay physically assault the testator to force the testator to comply with his or her demands.\n\n454\n\n\x0cIn re Estate of Rosasco, 31 Misc. 3d 1214(A), 927 N.Y.S.2d 819 (N.Y. Sur. Ct. 2011)\nKRISTIN BOOTH GLEN, J.\nThis is a motion for summary judgment brought by John Cella, preliminary executor of the estate of\nhis great-aunt, Mildred Rosasco, and proponent in a proceeding to probate her will. Objectants (four\nof decedent\xe2\x80\x99s nieces and nephews, including proponent\xe2\x80\x99s mother) oppose the motion. The facts of\nthis case and the objections asserted present an opportunity to reexamine the tangled relationship in\nNew York law between undue influence and duress as grounds for invalidating a will.\nProcedural Posture:\nDecedent died on June 18, 2006, at age 93, survived by five nieces and nephews as her distributees,\nleaving a $2.8 million estate. The propounded instrument, executed on September 16, 1997,\nnominated as co-executors Loretta, a predeceased sister, and proponent and left the entire probate\nestate to Loretta and Lillian, another predeceased sister, but, in the event neither survived decedent,\nto proponent. Accordingly, proponent is the only person with an interest under the propounded\ninstrument.\nDistributees Elissa Cella, Robert Rosasco, Arthur Rosasco and Ellin Learned objected to probate of\nthe propounded instrument, alleging that the instrument: (1) is not genuine; (2) was not duly\nexecuted; (3) was executed by mistake; (4) was executed without testamentary capacity; (5) is the\nproduct of proponent\xe2\x80\x99s undue influence; (6) is the product of duress exercised by proponent on\ndecedent; and (7) was procured by proponent\xe2\x80\x99s fraud.\nSummary Judgment:\nOn a summary judgment motion, the court must examine the evidence in a light most favorable to\nthe party opposing summary judgment (see Council of City of New York v. Bloomberg, 6 NY3d 380,\n401[2006]). That party \xe2\x80\x9cmust assemble and lay bare its affirmative proof to demonstrate the\nexistence of genuine, triable issues. Reliance upon mere conclusions, expressions of hope or\nunsubstantiated allegations is insufficient for that purpose [citations omitted]\xe2\x80\x9d (Corcoran Group v. Guy\nMorris et al., 107b A.D.2d 622, 624 [1st Dept 1985], affd., 64 N.Y.2d 1034).\nObjectants have articulated a basis for their allegations of undue influence and duress, but adduced\nno evidence to support any other ground. Therefore, with respect to issues for which objectants\nbear the burden of proof\xe2\x80\x94allegations that the propounded instrument is the product of fraud (see\nMatter of Evanchcuk, 145 A.D.2d 559, 560 [1st Dept 1988] ) and was executed by mistake\xe2\x80\x94but have\nfurnished none, the motion for summary judgment is granted. With respect to objections for which\nproponent bears the burden of proof\xe2\x80\x94the genuineness of the instrument (see Matter of Creekmore, 1\nN.Y.2d 284, 292 [1956]); see also SCPA 1408 [1] ), the due execution of the instrument and the\ncapacity of the testator (see Matter of Kumstar, 66 N.Y.2d 691, 692 [1985])\xe2\x80\x94and has borne his burden\n(by means of an affidavit of the attesting witnesses, the attestation clause of the will, and proof that\nan attorney supervised the execution of the will [Matter of Schlaeger, 74 AD3d 405 (1st Dept. 2010)]),\nthe motion for summary judgment also is granted. The only remaining issue, therefore, is whether\nobjectants\xe2\x80\x99 allegations of undue influence and duress warrant a trial.\n\n455\n\n\x0cFacts Relevant to Claims of Undue Influence and Duress:\nDecedent, her sisters Lillian and Loretta, and proponent and his family all lived in various\napartments in 45 Morton Street, a building owned by LoRoss Realty Corp., a closely-held\ncorporation controlled by members of the Rosasco family. When proponent\xe2\x80\x99s parents threw him out\nof their home, proponent, according to his deposition testimony, simply moved from his parents\xe2\x80\x99\nunits, Apartments 7 and 8, into Apartment 2, which belonged to Lillian. Lillian resided with\ndecedent in Apartment 5. Loretta lived in Apartment 4. In 1989, decedent gave proponent a key to\nApartment 5.\nIn August 1997, proponent (along with Lillian and Loretta) attended a meeting between decedent\nand Joseph J. Cella, Esq., (no relation to proponent), the attorney who drafted the September 16,\n1997 instrument, at which the terms of the proposed instrument were discussed. \xe2\x80\x9cIn essence,\xe2\x80\x9d\nproponent testified at his deposition, \xe2\x80\x9cshe said she\xe2\x80\x99d like to leave all her possessions to her sisters\nfirst and then to me.\xe2\x80\x9d\nIn 1997, that same year, proponent\xe2\x80\x99s relationship with his sister Kate, according to his own\ndeposition testimony, was \xe2\x80\x9chostile.\xe2\x80\x9d Proponent knew that decedent and her sisters provided Kate\n(who no longer was residing at 45 Morton Street) with financial support. It was \xe2\x80\x9ccommon\nknowledge\xe2\x80\x9d; besides, at the time, according to his deposition testimony, proponent had unfettered\naccess to decedent\xe2\x80\x99s checkbook and monitored checks payable to Kate. Decedent\xe2\x80\x99s financial support\nof Kate infuriated proponent. He berated decedent and her sisters loudly and often. His anger\nincited him to violence. He testified at his deposition that, in 1997, on one of Kate\xe2\x80\x99s weekly visits to\nApartment 5 to ask decedent and her sisters for money, he struck Kate and \xe2\x80\x9cpushed\xe2\x80\x9d her to the\nfloor.\nKate also testified at her deposition about the 1997 incident:\n\xe2\x80\x9cA. There was one time I believe in\xe2\x80\x94I believe it was 97 when John hit me in the back while I was\xe2\x80\x94\nwhile I was leaving the apartment and he was coming in. He just swung around and hit me. And it\nwas in front of all three of my aunts. And that was one of the\xe2\x80\x94\nQ. As you were coming the [sic ] apartment?\nA. As I was going out.\nQ. As you were going out the door?\nA. Yes. And that was the one time that\xe2\x80\x94well, not the one time; but it was, like, a major time when\nall three aunts got up and went after him. They were yelling at him to leave me alone. They were\nvery agitated and they were very upset. They called the police.\xe2\x80\x9d\nThe court notes that decedent was crippled from polio. In 1997, according to proponent\xe2\x80\x99s\ndeposition testimony, decedent was 5\xe2\x80\xb27\xe2\x80\xb3 and \xe2\x80\x9cskinny,\xe2\x80\x9d weighing approximately 100 pounds, while\nproponent was 5\xe2\x80\xb211\xe2\x80\xb3 tall, weighing 190 pounds.\nAccording to Kate, the 1997 incident was not proponent\xe2\x80\x99s first act of violence against her in\ndecedent\xe2\x80\x99s presence. As she testified at her deposition:\n456\n\n\x0cA. There were plenty of instances where he tried to intimidate me physically. But as for hitting me, it\nwas confined to 97 and one in 94\xe2\x80\x9395.\nQ. Did you\xe2\x80\x94\nA. And that was in front of the aunts too.\nQ. What happened then?\nA. He started an argument with Mildred about giving me money and about me being around them,\nwhich is what he usually complains about. And when she told him to get out, he said, I\xe2\x80\x99m not going\nanywhere. Then he promptly punched me in the stomach in front of them and I went down like a\nton of bricks.\nHe\xe2\x80\x99s a martial\xe2\x80\x94he knew martial arts at this time. So he was pretty strong at that time....\xe2\x80\x9d\nProponent\xe2\x80\x99s violence and other intimidating behavior had a keen effect on decedent. Kate testified\nat her deposition:\n\xe2\x80\x9c... I remember the conversation happening at the end of August, beginning of September of 97\nwhere she said one day\xe2\x80\x94I came in one day to talk to her.\n\xe2\x80\x9cShe said\xe2\x80\x94and I quote\xe2\x80\x94I did a really stupid thing. I made your brother the executor of my estate\nand I should have made you that, meaning me. And I said, Well, easy thing to do. Call your lawyer\nand have it changed if that\xe2\x80\x99s what you want to do.\n\xe2\x80\x9cOh, no. If I do that, he\xe2\x80\x99ll hurt me. And I was, like, Um, it\xe2\x80\x99s your estate. You shouldn\xe2\x80\x99t have to be\nintimidated by him. If you\xe2\x80\x99re afraid of calling the lawyer, I\xe2\x80\x99ll call the lawyer. No. If you do that, he\xe2\x80\x99s\njust going to end up making things a lot worse and he\xe2\x80\x99s going to hurt you and I don\xe2\x80\x99t want that on\nmy conscience.\n*****\n\xe2\x80\x9cAnd I talked to her about it and I said, Well, it\xe2\x80\x99s your money. It\xe2\x80\x99s your estate. If you don\xe2\x80\x99t want\nJohn to be the executor, you have the right to call your lawyer and have it changed.\n\xe2\x80\x9cShe kept saying that if she did that, John would hurt her. Which I could believe, because he\nintimidated her a lot over the years.\xe2\x80\x9d\nThere is also evidence decedent believed that, even if she were to make a new will\xe2\x80\x94and expose\nherself and Kate to the risk of proponent\xe2\x80\x99s violence\xe2\x80\x94proponent, nevertheless, would thwart her\nintent. Kate testified at her deposition that, in 2002, when Loretta complained that proponent had\ntaken $10,000 from her:\n\xe2\x80\x9cMildred said, Well, he did the same thing to me. I mean, he\xe2\x80\x99s the executor of my\nestate and I really don\xe2\x80\x99t want him to be.... And then she said, Well, he\xe2\x80\x99s probably\ngoing to find a way to steal my money anyway....\xe2\x80\x9d\n457\n\n\x0cDecedent\xe2\x80\x99s declarations to Kate that: (1) if she were to contact her lawyer about making a new will,\nproponent would \xe2\x80\x9churt me,\xe2\x80\x9d (2) if Kate were to contact the lawyer on decedent\xe2\x80\x99s behalf,\nproponent\xe2\x80\x99s \xe2\x80\x9cgoing to hurt you,\xe2\x80\x9d and (3) regardless of the terms of her will, proponent would \xe2\x80\x9cfind\na way to steal\xe2\x80\x9d the assets of her estate, are not considered for their truth or falsity. Rather, these\nstatements fall within the state of mind exception to the hearsay rule (see Prince on Evidence \xc2\xa7 8\xe2\x80\x93\n106). As the Court of Appeals explained:\n\xe2\x80\x9cNo testimonial effect need be given to the declaration, but the fact that such a\ndeclaration was made by the decedent, whether true of false, is compelling\nevidence of her feelings toward, and relations to, [in the instant case, proponent].\nAs such it is not excluded under the hearsay rule but is admissible as a verbal\nact.\xe2\x80\x9d\nLoetsch v. New York City Omnibus Corp., 291 N.Y. 308, 311 (1943).\nThe credibility of Kate\xe2\x80\x99s testimony, as to \xe2\x80\x9cthe fact that such a declaration was made by the\ndecedent,\xe2\x80\x9d and, if credible, the significance of such declarations, would be for a trier of fact to\ndecide.\nUndue Influence:\nCourts have long wrestled with the concept of undue influence. In the nineteenth century, the Court\nof Appeals noted:\n\xe2\x80\x9cIt is impossible to define or describe with precision and exactness what is undue influence; what\nthe quality and the extent of the power of one mind over another must be to make it undue, in the\nsense of the law, when exerted in making a will. Like the question of insanity, it is to some degree\nopen and vague, and must be decided by the application of sound principles and good sense to the\nfacts of each given case. [Citation omitted.] But the influence exercised over a testator which the\nlaw regards as undue or illegal, must be such as to destroy his free agency; but no matter how little\nthe influence, if the free agency is destroyed it vitiates the act which is the result of it. In 1 Jarman\non Wills, 36, it is said: That the amount of undue influences which will be sufficient to invalidate a\nwill must of course vary with the strength or weakness of the mind of the testator; and the\ninfluence which would subdue and control a mind naturally weak, or one which had become\nimpaired by age, sickness, disease, intemperance, or any other cause, might have no effect to\novercome or mislead a mind naturally strong and unimpaired.\xe2\x80\x99 \xe2\x80\x9cThe undue influence is not often\nthe subject of direct proof. It can be shown by all the facts and circumstances surrounding the\ntestator, the nature of the will, his family relations, the condition of his health and mind, his\ndependency upon and subjection to the control of the person supposed to have wielded the\ninfluences, the opportunity and disposition of the person to wield it, and the acts and declarations\nof such person. [Citations omitted.]\xe2\x80\x9d\nRollwagen v. Rollwagen, 63 N.Y. 504, 519 (1876).\nA year later, the Court of Appeals amplified its definition, explaining that influence is undue if it:\n\xe2\x80\x9camounted to a moral coercion, which restrained independent action and\n458\n\n\x0cdestroyed free agency, or which, by importunity which could not be resisted,\nconstrained the testator to do that which was against his free will and desire, but\nwhich he was unable to refuse or too weak to resist. It must not be the\npromptings of affection; the desire of gratifying the wishes of another; the ties of\nattachment arising from consanguinity, or the memory of kind acts and friendly\noffices, but a coercion produced by importunity, or by a silent, resistless power\nwhich the strong will often exercises over the weak and infirm, and which could\nnot be resisted, so that the motive was tantamount to force or fear. [Citations\nomitted.]\xe2\x80\x9d\nChildren\xe2\x80\x99s Aid Soc\xe2\x80\x99y v. Loveridge, 70 N.Y. 387, 394 (1877).\nSome 82 years later, the Court of Appeals, in Matter of Walther (6 N.Y.2d 49 [1959]), articulated the\nelements of a prima facie case: (1) undue influence may be proven by circumstantial evidence,\nprovided such evidence is substantial (id. at 54); (2) there must be a showing, not only of opportunity\nand motive to exercise undue influence, but also, of the actual exercise of undue influence (id. at 55);\nand (3) evidence that equally gives rise to an inference of undue influence or an inference that no\nundue influence was practiced, does not establish undue influence (id. at 54).\nThe New York State Pattern Jury Instructions provide:\n\xe2\x80\x9cA will must be a true expression of the testator\xe2\x80\x99s wishes. If, instead, it reflects the desires of some\nperson who controlled the testator\xe2\x80\x99s thoughts or actions, the will is invalid because of undue\ninfluence. To be undue\xe2\x80\x99, the influence exerted must amount to mental coercion that led the testator\nto carry out the wishes of another, instead of (his, her) own wishes, because the testator was unable\nto refuse or too weak to resist. The undue pressure brought to bear may consist of a play on the\ntestator\xe2\x80\x99s emotions, passions, fears, weaknesses or hopes. It may consist of an appeal to (his, her)\nprejudices or a continual course of flattery. The exercise of undue influence may be slow and\ngradual, progressively gaining control over the testator.\n*****\n\xe2\x80\x9cDirect evidence of undue influence is seldom available. Accordingly, the law permits undue\ninfluence to be shown by facts and circumstances leading up to and surrounding execution of a will.\nHowever, it is not enough that you find that motive and opportunity to exercise undue influence\nexisted. You must also find additional facts that satisfy you that such influence was actually\nexercised. Further, the facts upon which a claim of undue influence is based must be proved. In\nother words, you may not guess or speculate. It must appear that the inference of undue influence is\nthe only one that can fairly and reasonably be drawn from the facts proved, and that any other\nexplanation is fairly and reasonably excluded. If the facts proved would reasonably support an\ninference that undue influence was exercised, as well as the contrary inference that it was not\nexercised, then undue influence has not been proved.\n\xe2\x80\x9cYou just answer the following question: Was the execution of the will... by the testator, AB, the\nresult of undue influence by CD?\xe2\x80\x99 To answer that question, you must determine what were the facts\nand circumstances leading up to and surrounding execution of this will, taking into consideration\nsuch testimony as you deem true concerning ... AB\xe2\x80\x99s physical and mental condition; AB\xe2\x80\x99s contact\nwith, or isolation from, (his, her) family and friends....\n459\n\n\x0c\xe2\x80\x9cThe burden is on the contestant to establish by a fair preponderance of the evidence that the will\nin question was the result of undue\ninfluence....\xe2\x80\x9d\n(PJI2d 7:55 at 1429\xe2\x80\x931430 [2011]).\nThis \xe2\x80\x9cclassic\xe2\x80\x9d type of undue influence is difficult to prove. It tends to be practiced in secret (a \xe2\x80\x9csilent\nresistless power\xe2\x80\x9d) on an individual who is enfeebled, isolated and moribund, someone susceptible to\nthe effects of subtle importuning who, after executing her will, either loses capacity or dies while\nsubject to the undue influence. On its face, it would not appear applicable to the instant case.\nDecedent here, at the time she executed her will, suffered no mental infirmity, lived communally\nwith her sisters and survived an additional eight-and-three-quarter years. During that period, she was\nconnected to, and received assistance from, many people other than proponent.\nThe burden of proving this \xe2\x80\x9cclassic\xe2\x80\x9d form of undue influence is eased if objectants can establish that\nthe testator was in a relationship of trust and dependence with a person who exploited that\nrelationship (see PJI2d 7:56.1 at 1442\xe2\x80\x931444 [2011]). Such facts permit an inference of undue\ninfluence that obligates the person charged with undue influence to explain the bequest (Matter of\nKatz, 15 Misc.3d 1104[A][Sur Ct, New York County, 2007] ).\nUnsurprisingly, objectants claim that decedent was in a relationship of trust and dependence with\nproponent; however, their non-specific and conclusory allegations fail to establish the existence of\nsuch relationship. Objectants claim that proponent was \xe2\x80\x9ca regular presence at [decedent\xe2\x80\x99s]\napartment, a participant in her daily life,\xe2\x80\x9d that he \xe2\x80\x9cassist[ed] her and [made] arrangements for her\ndaily life\xe2\x80\x9d and that he \xe2\x80\x9csupervised her care.\xe2\x80\x9d These allegations, inadequate in themselves to describe\na confidential relationship, are based on the affidavits of Zoe Maher and Mayra Rajeh which, along\nwith proponent\xe2\x80\x99s own deposition testimony, undercut any claim of isolation or exclusive\ndependence. At most, proponent was part of decedent\xe2\x80\x99s support system.\nIn the absence of evidence of actual exercise of undue influence on a weakened mind or abuse of a\nconfidential relationship, proponent, under the \xe2\x80\x9cclassic\xe2\x80\x9d definition of undue influence, would be\nentitled to summary judgment. Yet, \xe2\x80\x9cclassic\xe2\x80\x9d undue influence is not the only ground on which to\ndetermine whether a propounded instrument expresses testator\xe2\x80\x99s unconstrained choice. Although it\nis seldom discussed in New York cases, the First Department has noted:\n\xe2\x80\x9cThere are two principal categories of undue influence in the law of wills, the\nforms of which are circumscribed only by the ingenuity and resourcefulness of\nman. One class is the gross, obvious and palpable type of undue influence which\ndoes not destroy the intent or will of the testator but prevents it from being\nexercised by force and threats of harm to the testator or those close to him. The\nother class is the insidious, subtle and impalpable kind which subverts the intent\nor will of the testator, internalizes within the mind of the testator the desire to do\nthat which is not his intent but the intent and end of another. [Citations\nomitted.]\xe2\x80\x9d\nMatter of Kaufmann, 20 A.D.2d 464, 482-483 (1st Dept 1964), affd 15 N.Y.2d 825 (1965)\nThe former category is also known as \xe2\x80\x9cduress.\xe2\x80\x9d\n460\n\n\x0cDuress:\nIn the context of contested probate proceedings, New York State courts tend to blur the distinction\nbetween duress and undue influence. Indeed, the New York State Pattern Jury Instructions do not\neven mention duress as a ground, separate from undue influence, for contesting a will. Such\nindiscriminate approach toward the law of duress is not unique to the courts of this State. A legal\nscholar has observed:\n\xe2\x80\x9cIn fact, in the American law of wills, the concepts of duress and undue influence are so\nintertwined that several major Trusts and Estates textbooks omit discussion of duress altogether\nor explain the idea only in connection with undue influence. Leading treatises explain that duress\nis often classed under undue influence.\xe2\x80\x99 And, in the context of wills, it may be defined as the use\nof coercion or force to such a degree that it destroys the free agency and willpower of the testator.\nThe Restatement is perhaps most helpful in distinguishing between duress and undue influence.\n[Footnotes omitted.]\xe2\x80\x9d\nScalise, supra, at 68.\nThe Restatement (Third) of Property distinguishes a bequest procured by undue influence from one\nprocured by duress. As to the former:\n\xe2\x80\x9cA donative transfer is procured by undue influence if the wrongdoer exerted\nsuch influence over the donor that it overcame the donor\xe2\x80\x99s free will and caused\nthe donor to make a donative transfer that the donor would not otherwise have\nmade.\xe2\x80\x9d\nId. \xc2\xa7 8.3(b).\nThe latter is explained as follows:\n\xe2\x80\x9cA donative transfer is procured by duress if the wrongdoer threatened to\nperform or did perform a wrongful act that coerced the donor into making a\ndonative transfer that the donor would not otherwise have made.\xe2\x80\x9d\nId. \xc2\xa7 8.3(c).\nThe Comment on Subsection (c) explains:\n\xe2\x80\x9cAn act is wrongful if it is criminal or one that the wrongdoer had no right to do.\nSee Restatement Second, Contracts \xc2\xa7\xc2\xa7 174-176. Although an act or a threat to do\nan act that the wrongdoer had a right to do does not constitute duress, such a\nthreat or act can constitute undue influence, for example, a threat to abandon an\nill testator.\xe2\x80\x9d\nThe Restatement of Contracts fleshes out the elements of duress. First, \xe2\x80\x9cthe doing of an act often\ninvolves, without more, a threat that the act will be repeated\xe2\x80\x9d (Restatement [First] of Contracts \xc2\xa7\n492 Comment d). As stated in the Restatement (Second) of Contracts: \xe2\x80\x9cPast events often import a\nthreat\xe2\x80\x9d (id. \xc2\xa7 175 Comment b).\nSecond, the standard for evaluating whether an \xe2\x80\x9cact or threat produces the required degree of fear is\n461\n\n\x0cnot objective,\xe2\x80\x9d but subjective, that is, the issue is whether the threat of a wrongful act induced such\nfear in the testator \xe2\x80\x9cas to preclude the exercise by [her] of free will and judgment\xe2\x80\x9d (Restatement\n[First] of Contracts \xc2\xa7 492 Comment a]). As explained in the Restatement (Second) of Contracts:\n\xe2\x80\x9cThe test is subjective and the question is, did the threat actually induce assent on the part of the\nperson claiming to be the victim of duress\xe2\x80\x9d (id. \xc2\xa7 175 Comment c).\nFinally, the motivation or intent of the person charged with duress is irrelevant: \xe2\x80\x9cduress does not\ndepend on the intent of the person exercising it\xe2\x80\x9d (Restatement [First] of Contracts \xc2\xa7 492 Comment\na]).\nObjectants here have established a prima facie case for duress. The evidence adduced by objectants, if\nbelieved by the trier of fact, could establish that: (1) To decedent, proponent\xe2\x80\x99s wrongful act\xe2\x80\x94his\nviolence toward Kate\xe2\x80\x94posed a threat of repeated violence. (2) That threat induced fear in decedent.\n(3) Decedent feared that, if she were to make a new will that favored Kate, not only would\nproponent harm decedent, if he were to learn of the new will during decedent\xe2\x80\x99s lifetime, but also,\nmore significantly, upon decedent\xe2\x80\x99s death, proponent would physically harm Kate (and convert for\nhimself any assets intended for Kate). And (4) Such fear precluded decedent from exercising her free\nwill and judgment and naming Kate, a natural object of her bounty, a legatee.\nProponent\xe2\x80\x99s Contentions:\nProponent makes two arguments which may be disposed of easily. First, he contends that it was\nnatural for decedent to disinherit her nieces and nephews because her relationship with them was\n\xe2\x80\x9cdistant at best.\xe2\x80\x9d Indeed, objectants Elissa Cella and Ellin Learned, along with another of decedent\xe2\x80\x99s\nnieces (the one who did not object in the instant probate proceeding), commenced an action in 1988\nagainst decedent, her sisters Lillian and Loretta and their brother Walter (who died in 1997),\naccusing them of mismanaging LoRoss Realty Corp. However, the rationale for decedent\xe2\x80\x99s decision\nto disfavor her nieces and nephews has no bearing on her decision to favor proponent to the\nexclusion of others. Rather, the issue is, as discussed above, whether her decision was the product of\nduress.\nSecond, proponent, invoking the doctrine of laches, contends that objectants are precluded from\nobjecting to probate of the propounded instrument because they did not: (1) object to the\nappointment of proponent and Joseph J. Cella, Esq., as co-executors of Lillian\xe2\x80\x99s will, or (2) object to\nthe appointment of proponent (after decedent had renounced her nomination as executor) as\nadministrator c.t.a. of Loretta\xe2\x80\x99s estate, or (3) object, during decedent\xe2\x80\x99s lifetime, to the 2002\nagreement, whereby decedent and her sisters, Lillian and Loretta, transferred to proponent their\n60% interest in premises known as 51 East 10th Street for less than fair market value, or (4) seek the\nappointment of an Article 81 guardian for decedent, all of which deprived proponent of the benefit\nof decedent\xe2\x80\x99s testimony. Proponent\xe2\x80\x99s invocation of the doctrine of laches is entirely inapposite.\nThe questions presented in the instant proceeding concern only the validity of the instrument\nexecuted on September 16, 1997. Such questions could not have been raised during decedent\xe2\x80\x99s\nlifetime. Furthermore, objectants had no standing, during decedent\xe2\x80\x99s lifetime, to challenge the 2002\ntransfer; indeed, objectants will remain without standing unless they establish an interest in\ndecedent\xe2\x80\x99s estate.\nConclusion:\n462\n\n\x0cThe motion for summary judgment with respect to duress is denied. In all other respects, themotion\nis granted.\nThe court will contact the parties to schedule a conference before a trial on the issue of duress.\nThis decision constitutes the order of the court.\n10.3\n\nFraud\n\nAccording to \xc2\xa7 8.3(d) of the Restatement (Third) of Property: Wills and Other Donative\nTransfers, \xe2\x80\x9cA donative transfer is procured by fraud if the wrongdoer knowingly or recklessly made\na false representation to the donor about a material fact that was intended to and did lead the donor\nto make a donative transfer that the donor would not otherwise have made.\xe2\x80\x9d If the fraudulent\nactions of another person impacts the contents of the testator\xe2\x80\x99s will, the will is not valid because it\ndoes not reflect the testator\xe2\x80\x99s true intent. The misrepresentation must be made with both the intent\nto deceive the testator and the purpose of influencing the testamentary disposition. Let\xe2\x80\x99s look at an\nexample.\nExample 1: Betty planned to leave half of her estate to her friend, Elaine. One day, Betty shared\nthat fact with her neighbor, Louise. Louise told Betty, \xe2\x80\x9cI saw Elaine\xe2\x80\x99s daughter about a month ago\nand she told me that Elaine had been diagnosed with breast cancer. Last week, I ran into Elaine\xe2\x80\x99s\ncousin at the supermarket and she told me that Elaine did not make it.\xe2\x80\x9d In fact, the cousin told\nLouise that the doctors did not think that Elaine was going to make it. After Betty tried\nunsuccessfully to contact Elaine and her family, she executed a will leaving all of her estate to\ncharity. At the time that Betty executed her will, Elaine was very much alive.\nExplanation 1: Betty\xe2\x80\x99s will was not a product of fraud. Louise\xe2\x80\x99s purpose was to influence the\ntestamentary disposition because she did not want Betty leaving half of her estate to a dead woman.\nHowever, Louise did not tell her Elaine was dead to deceive her. At the time she shared the\ninformation, Louise thought that it was true. Fraud would have occurred if Louise knew Elaine was\nalive, but she did not want Elaine to get half of the estate.\nThere are two types of fraud relevant to estate planning\xe2\x80\x94fraud in the inducement and fraud\nin the execution. Fraud in the inducement occurs when a person misrepresents facts, thereby\ncausing the testator to execute a will, to include particular provisions in the wrongdoer\xe2\x80\x99s favor, to\nrefrain from revoking a will or not to execute a will. Fraud in the execution occurs when a person\nmisrepresents the character or contents of the instrument signed by the testator, which does not in\nfact carry out the testator\xe2\x80\x99s intent\n10.3.1 Fraud in the inducement\nFraud in the inducement happens at the beginning of the estate planning process. It usually\ninvolves a situation where someone seeks to entice the testator into making a testamentary\ndisposition that benefits him or her. The person makes a misrepresentation for the sole purpose of\nachieving that goal.\n463\n\n\x0cExample:\nHelen, a 78 year old widow, had three children, Clarence, Cody and Cathy. Cathy took Helen to a\nlawyer, so that Helen could prepare her will. On the way to the lawyer\xe2\x80\x99s office, the following\nconversation occurred:\nHelen: \xe2\x80\x9cI plan to leave my estate to you and your brothers equally.\xe2\x80\x9d\nCathy: \xe2\x80\x9cYou have to be careful because leaving Cody money will just hurt him.\xe2\x80\x9d\nHelen: \xe2\x80\x9cWhat are you talking about?\xe2\x80\x9d\nCathy: \xe2\x80\x9cCody has been taking drugs for years. The only reason he is sober sometimes is because he\ndoesn\xe2\x80\x99t have money to buy all of the drugs that he wants.\xe2\x80\x9d\nHelen: \xe2\x80\x9cAre you sure? This is my first time hearing that.\xe2\x80\x9d\nCathy: \xe2\x80\x9cThat\xe2\x80\x99s because everyone is afraid of hurting your feelings.\xe2\x80\x9d\nHelen: \xe2\x80\x9cThanks for letting me know.\xe2\x80\x9d\nAs a result of the conversation, Helen left the majority of her estate to Clarence and Cathy. She\nplaced a small amount in trust for Cody. Cathy intentionally lied about Cody having a drug problem.\nThis is a classic example of fraud in the inducement.\n10.3.2 Fraud in the Execution\nFraud in the execution occurs after the contents of the will have already been put in place\nand prior to the actual execution of the will. It encompasses cases where the testator is tricked into\nexecuting a document that is not his or her will or one that does not contain his or her expressed\nwishes.\nExample:\nJoseph, an 82 year old widower, had two children, Janice and Benjamin, and two grandchildren by\nhis daughter Janice, Wayne and Garrett. Joseph had his attorney prepare a will in which he left 25%\nof his estate to Janice and 25% to Benjamin. The remaining 50% of the estate was placed in trust for\nWayne and Garrett. Benjamin found a copy of the will on Joseph\xe2\x80\x99s desk. Benjamin felt that, since\nJanice\xe2\x80\x99s children were benefitting from the trust, she was entitled to a smaller percentage of the\nestate. Joseph had three of his friends come to his house to witness the signing of the will.\nBenjamin was present at the ceremony. He gave the will to Joseph for his signature. Joseph and the\nwitnesses only looked at the signature page of the will. Joseph did not know that Benjamin had\nretyped the will, so that he received 50% of the estate, Janice received 25%, and the amount in the\ntrust for Wayne and Garrett was reduced to 25%. This is a case of fraud in the execution because\nJoseph was tricked into signing a will with different terms than the ones he approved.\n10.4\n\nIntentional Interference With An Inheritance Expectancy (IIE)\n\nNo one has a right to inherit property. The right to dispose of property belongs to the\ntestator. Thus, a person can legally disinherit any of his or her relatives. Nonetheless, when a person\nis prevented from inheriting property because of the actions of a third party, that person may have a\n464\n\n\x0ccause of action against the third party. The tort of IIE was derived from Restatement (Second) of\nTorts \xc2\xa7 774B(1979). Courts have been reluctant to recognize the tort of IIE because the person\nbringing the cause of action typically has access to an adequate remedy in probate court. In fact,\nmost probate codes explicitly state that the exclusive means of challenging the validity of a will is a\nwill contest action filed in the probate court. IIE resembles a will contest because the plaintiff claims\nthat he or she did not receive the inheritance that he or she expected because of the fraud, duress\nand/or undue influence perpetrated by the third party. Therefore, some courts reason that\nrecognition of IIE, a separate cause of action, is unnecessary because the plaintiff can achieve the\nsame outcome by filing a will contest action.\nIn order to successfully bring a cause of action for IIE, the plaintiff has to prove four things.\nFirst, the plaintiff must show the existence of an expectancy. The plaintiff can accomplish this by\ndemonstrating that he or she was the beneficiary of a testator\xe2\x80\x99s prior will or the heir at law of an\nintestate decedent. Second, the plaintiff must establish the intentional interference with his or her\nexpectancy through tortious conduct. In order to satisfy this requirement, the plaintiff must present\nevidence that the third party committed a tort that deprived the plaintiff of his or her inheritance.\nThe tortious conduct that the plaintiff usually alleges includes fraud, duress and/or undue influence.\nThird, the plaintiff must prove that the third party\xe2\x80\x99s actions caused him or her to lose the expected\ninheritance. Fourth, the plaintiff must prove damages.\n\n\xc2\xa7 774B Intentional Interference with Inheritance or Gift\nOne who by fraud, duress or other tortious means intentionally prevents another from receiving\nfrom a third person an inheritance or gift that he would otherwise have received is subject to\nliability to the other for loss of the inheritance or gift.\n\nSchilling v. Herrera, 952 So. 2d 1231 (Fla. App. 2007)\nROTHENBERG, Judge.\nThe plaintiff, Edward A. Schilling (\xe2\x80\x9cMr. Schilling\xe2\x80\x9d), appeals from an order granting the defendant\nMaria Herrera\xe2\x80\x99s (\xe2\x80\x9cMs. Herrera\xe2\x80\x9d) motion to dismiss the amended complaint with prejudice based on\nthe trial court\xe2\x80\x99s finding that the amended complaint fails to state a cause of action and that Mr.\nSchilling is barred from filing to action because he failed to exhaust his probate, remedies. We\ndisagree as to both findings and, therefore, reverse and remand for further proceedings.\nPROCEDURAL HISTORY\nMr. Schilling, the decedent\xe2\x80\x99s brother, sued Ms. Herrera, the decedent\xe2\x80\x99s caretaker, for intentional\ninterference with an expectancy of inheritance. Ms. Herrera moved to dismiss the complaint, arguing\nthat Mr. Schilling failed to state a cause of action and that he was barred from filing his claim\nbecause he failed to exhaust his probate remedies. The trial court granted the motion to dismiss\nwithout prejudice.\n\n465\n\n\x0cThereafter, Mr. Schilling filed an amended complaint asserting the same cause of action against Ms.\nHerrera. The amended complaint alleges that in December 1996, Mignonne Helen Schilling (the\ndecedent) executed her Last Will and Testament, naming her brother and only heir-at-law, Mr.\nSchilling, as her personal representative and sole beneficiary, and in May 1997, she executed a\nDurable Power of Attorney, naming Mr. Schilling as her attorney-in-fact.\nIn December 1999, the decedent was diagnosed with renal disease, resulting in several\nhospitalizations. During this period, Mr. Schilling, who resides in New Jersey, traveled to Florida to\nassist the decedent. In January 2000, the decedent executed a Power of Attorney for Health Care,\nnaming Mr. Schilling as her attorney-in-fact for health care decisions.\nOn January 12, 2001, when the decedent was once again hospitalized, Mr. Schilling traveled to\nFlorida to make arrangements for the decedent\xe2\x80\x99s care. After being released from the hospital, the\ndecedent was admitted to a rehabilitation hospital, then to a health care center, and then to the\nClairidge House for rehabilitation. While at the Clairidge House, Ms. Herrera became involved in the\ndecedent\xe2\x80\x99s care, and when the decedent was discharged from the Clairidge House on December 16,\n2001, Ms. Herrera notified Mr. Schilling.\nAfter being discharged from the Clairidge House, the decedent returned to her apartment, and Ms.\nHerrera began to care for her on an \xe2\x80\x9coccasional, as needed basis.\xe2\x80\x9d In 2003, when the decedent\xe2\x80\x99s\ncondition worsened and she was in need of additional care, Ms. Herrera converted her garage into a\nbedroom, and the decedent moved in. The decedent paid Ms. Herrera rent and for her services as\ncaregiver.\nWhen Mr. Schilling spoke to Ms. Herrera over the phone, Ms. Herrera complained that she was not\ngetting paid enough to take care of the decedent, and on April 10, 2003, Mr. Schilling sent Ms.\nHerrera money. While living in the converted garage, the decedent became completely dependent on\nMs. Herrera. In September 2003, without Mr. Schilling\xe2\x80\x99s knowledge, Ms. Herrera convinced the\ndecedent to prepare and execute a new Power of Attorney, naming Ms. Herrera as attorney-in-fact,\nand to execute a new Last Will and Testament naming Ms. Herrera as personal representative and\nsole beneficiary of the decedent\xe2\x80\x99s estate.\nMr. Schilling visited the decedent in March of 2004. On August 6, 2004, the decedent died at Ms.\nHerrera\xe2\x80\x99s home.\nOn August 24, 2004, Ms. Herrera filed her Petition for Administration. On December 2, 2004,\nfollowing the expiration of the creditor\xe2\x80\x99s period, Ms. Herrera petitioned for discharge of probate.\nOn December 6, 2004, after the expiration of the creditor\xe2\x80\x99s period and after Ms. Herrera had\npetitioned the probate court for discharge of probate, Ms. Herrera notified Mr. Schilling for the first\ntime that the decedent, his sister, had passed away on August 6, 2004. Shortly thereafter, in late\nDecember 2004, the Final Order of Discharge was entered by the probate court. Mr. Schilling\nalleges that prior to being notified of his sister\xe2\x80\x99s death on December 6, 2004, he attempted to\ncontact the decedent through Ms. Herrera, but Ms. Herrera did not return his calls until the\nconclusion of probate proceedings and did not inform him of his sister\xe2\x80\x99s death, thereby depriving\nhim of both the knowledge of the decedent\xe2\x80\x99s death and the opportunity of contesting the probate\nproceedings. Mr. Schilling further alleges that prior to the decedent\xe2\x80\x99s death, Ms. Herrera regularly\ndid not immediately return his phone calls, and that Ms. Herrera\xe2\x80\x99s \xe2\x80\x9cintentional silence was part of a\ncalculated scheme to prevent [Mr.] Schilling from contesting the Estate of Decedent, and was\n466\n\n\x0cintended to induce [Mr.] Schilling to refrain from acting in his interests to contest the probate\nproceedings in a timely fashion, as [Mr.] Schilling was used to long delays in contact with [Ms.]\nHerrera, and did not suspect that the delay was intended to fraudulently induce [Mr.] Schilling to\nrefrain from acting on his own behalf.\xe2\x80\x9d Finally, Mr. Schilling alleges that he expected to inherit the\ndecedent\xe2\x80\x99s estate because he was the decedent\xe2\x80\x99s only heir-at-law and because he was named as the\nsole beneficiary in the 1996 will; Ms. Herrera\xe2\x80\x99s fraudulent actions prevented him from receiving the\ndecedent\xe2\x80\x99s estate, which he was entitled to; and but for Ms. Herrera\xe2\x80\x99s action of procuring the will\nnaming her as sole beneficiary, he would have received the benefit of the estate.\nAfter Mr. Schilling filed his amended complaint, Ms. Herrera filed a renewed motion to dismiss,\narguing the same issues that she had raised in her previous motion to dismiss. The trial court granted\nthe motion to dismiss with prejudice, finding that Ms. Herrera had no duty to notify Mr. Schilling of\nthe decedent\xe2\x80\x99s death as Mr. Schilling did not hire Ms. Herrera to care for the decedent, and\ntherefore, there was \xe2\x80\x9cno special relationship giving rise to a proactive responsibility to provide\ninformation....\xe2\x80\x9d The trial court also found that Mr. Schilling was barred from filing a claim for\nintentional interference with an expectancy of inheritance because he failed to exhaust his probate\nremedies.\nLEGAL ANALYSIS\nA trial court\xe2\x80\x99s ruling on a motion to dismiss for failure to state a cause of action is an issue of law,\nand therefore, our standard of review is de novo. Roos v. Morrison, 913 So.2d 59, 63 (Fla. 1st DCA\n2005); Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc. 842 So.2d 204, 206 (Fla. 2d DCA 2003).This court\n\xe2\x80\x9cmust accept the facts alleged in a complaint as true when reviewing an order that determines the\nsufficiency of the complaint.\xe2\x80\x9d Warren ex rel. Brassell v. K-Mart Corp., 765 So.2d 235, 236 (Fla. 1st DCA\n2000); see also Marshall v. Amerisys, Inc., 943 So.2d 276, 278 (Fla.3d DCA 2006)(\xe2\x80\x9cIn determining the\nmerits of a motion to dismiss, the court is confined to the four corners of the complaint, including\nthe attachments thereto, the allegations of which must be accepted as true and considered in the\nlight most favorable to the nonmoving party.\xe2\x80\x9d).\nTo state a cause of action for intentional interference with an expectancy of inheritance, the\ncomplaint must allege the following elements: (1) the existence of an expectancy; (2) intentional\ninterference with the expectancy through tortious conduct; (3) causation; and (4) damages. Claveloux\nv. Bacotti, 778 So.2d 399, 400 (Fla. DCA 2001)(citing Whalen v. Prosser, 719 So.2d 2, 5 (Fla. 2d DCA\n1998)). The court in Whalen clearly explained that the purpose behind this tort is to protect the\ntestator, not the beneficiary:\nInterference with an expectancy is an unusual tort because the beneficiary is\nauthorized to sue to recover damages primarily to protect the testator\xe2\x80\x99s interest\nrather than the disappointed beneficiary\xe2\x80\x99s expectations. The fraud, duress, undue\ninfluence, or other independent tortious conduct required for this tort is directed\nat the testator. The beneficiary is not directly defrauded or unduly influenced; the\ntestator is. Thus, the common law court has created this cause of action not\nprimarily to protect the beneficiary\xe2\x80\x99s inchoate rights, but to protect the deceased\ntestator\xe2\x80\x99s former right to dispose of property freely and without improper\ninterference. In a sense, the beneficiary\xe2\x80\x99s action is derivative of the testator\xe2\x80\x99s\nrights.\n467\n\n\x0cWhalen, 719 So.2d at 6.\nIn the instant case, the trial court\xe2\x80\x99s ruling was based on the fact that the amended complaint fails to\nallege that Ms. Herrera breached a legal duty owed to Mr. Schilling. However, as the Claveloux court\nnoted, there are four elements for a cause of action for intentional interference with an expectancy\nof inheritance, and breach of a legal duty is not one of the elements. This is consistent with the\nWhalen court\xe2\x80\x99s explanation that the \xe2\x80\x9cfraud, duress, undue influence, or other independent tortious\nconduct required for this tort is directed at the testator. The beneficiary is not directly defrauded or\nunduly influenced; the testator is.\xe2\x80\x9d Id. (emphasis added). We, therefore, review the amended\ncomplaint to determine if it sufficiently pleads a cause of action for intentional interference with an\nexpectancy of inheritance.\nIn essence, the amended complaint alleges that Mr. Schilling was named as the sole beneficiary in the\ndecedent\xe2\x80\x99s last will and testament; that based on this last will and testament, he expected to inherit\nthe decedent\xe2\x80\x99s estate upon her death; that Ms. Herrera intentionally interfered with his expectancy of\ninheritance by \xe2\x80\x9cconvincing\xe2\x80\x9d the decedent, while she was ill and completely dependent on Ms.\nHerrera, to execute a new last will and testament naming Ms. Herrera as the sole beneficiary; and\nthat Ms. Herrera\xe2\x80\x99s \xe2\x80\x9cfraudulent actions\xe2\x80\x9d and \xe2\x80\x9cundue influence\xe2\x80\x9d prevented Mr. Schilling from\ninheriting the decedent\xe2\x80\x99s estate. Based on these well-pled allegations, we conclude that the amended\ncomplaint states a cause of action for intentional interference with an expectancy of inheritance.\nTherefore, the trial court erred, as a matter of law, in dismissing the amended complaint on that\nbasis.\nMr. Schilling also contends that the trial court erred in finding that he was barred from filing a claim\nfor intentional interference with an expectancy of inheritance as he failed to exhaust his probate\nremedies. We agree.\nIn finding that Mr. Schilling was barred from filing his action for intentional interference with an\nexpectancy of inheritance, the trial court relied on DeWitt v. Duce, 408 So.2d 216 (Fla. 1981). In\nDeWitt, the testator\xe2\x80\x99s will was admitted to probate after his death. Thereafter, the plaintiffs filed a\npetition for revocation of probate of the testator\xe2\x80\x99s will, but voluntarily dismissed the petition,\nchoosing to take under the will instead of challenging the will in probate court. More than two years\nlater, the plaintiffs filed their claim for intentional interference with an inheritance, arguing that the\ndefendants exercised undue influence over the testator at a time when he lacked testamentary\ncapacity, causing the testator to execute the probated will, which was less favorable to the plaintiffs\nand more favorable to the defendants than the testator\xe2\x80\x99s previous will. The trial court dismissed the\naction, finding that pursuant to section 733.103(2), Florida Statutes (1977), the plaintiffs were\nforeclosed from proving the facts necessary to establish a cause of action for intentional interference\nwith an expectancy of inheritance. 733.103(2), Florida Statutes (1977), provides as follows:\nIn any collateral action or proceeding relating to devised property, the probate of a will in Florida\nshall be conclusive of its due execution; that it was executed by a competent testator, free of fraud,\nduress, mistake, and undue influence; and of the fact that the will was unrevoked on the testator\xe2\x80\x99s\ndeath.\nThe decision was appealed to a federal district court, and the federal court determined it would be\nbetter for the Florida Supreme Court to decide the issue, certifying the following question to the\nFlorida Supreme Court:\n468\n\n\x0cDoes Florida law, statutory or otherwise, preclude plaintiffs from proving the\nessential elements of their claim for tortious interference with an inheritance\nwhere the alleged wrongfully procured will has been probated in a Florida court\nand plaintiffs had notice of the probate proceeding and an opportunity to contest\nthe validity of the will therein but chose not to do so?\nDeWitt, 408 So.2d at 216-17.\nIn answering the certified question in the affirmative, the Florida Supreme Court stated that \xe2\x80\x9c[t]he\nrule is that if adequate relief is available in a probate proceeding, then that remedy must be\nexhausted before a tortious interference claim may be pursued.\xe2\x80\x9d Id. at 218. The Court, however,\nstated that an exception to this general rule is that \xe2\x80\x9c[i]f the defendant\xe2\x80\x99s fraud is not discovered until\nafter probate, plaintiff is allowed to bring a later action for damages since relief in probate was\nimpossible.\xe2\x80\x9d Id. at 219. The Court also noted that \xe2\x80\x9c[c]ases which allow the action for tortious\ninterference with a testamentary expectancy are predicated on the inadequacy of probate\nremedies....\xe2\x80\x9d Id. In conclusion, the Florida Supreme Court held:\nIn sum, we find that [plaintiffs] had an adequate remedy in probate with a fair\nopportunity to pursue it. Because they lacked assiduity in failing to avail\nthemselves of this remedy, we interpret section 733.103(2) as barring [plaintiffs]\nfrom a subsequent action in tort for wrongful interference with a testamentary\nexpectancy, and accordingly answer the certified question in the affirmative.\nId. at 222. Therefore, the Court\xe2\x80\x99s holding that the plaintiffs were barred from pursuing their claim\nfor intentional interference with an expectancy of inheritance, was based on the fact that the\nplaintiffs had an adequate remedy in probate; the plaintiffs had a fair opportunity to pursue their\nremedy; and the plaintiffs\xe2\x80\x99 failure to pursue their remedy was due to their lack of diligence.\nWe find that DeWitt is factually distinguishable, and therefore inapplicable. A review of the amended\ncomplaint reflects that Mr. Schilling has alleged two separate frauds. The first alleged fraud stems\nfrom Ms. Herrera\xe2\x80\x99s undue influence over the deceased in procuring the will, whereas the second\nalleged fraud stems from Ms. Herrera\xe2\x80\x99s actions in preventing Mr. Schilling from contesting the will\nin probate court. We acknowledge that pursuant to DeWitt if only the first type of fraud was\ninvolved, Mr. Schilling\xe2\x80\x99s collateral attack of the will would be barred. However, language contained\nin DeWitt clearly indicates that a subsequent action for intentional interference with an expectancy of\ninheritance may be permitted where \xe2\x80\x9cthe circumstances surrounding the tortious conduct effectively\npreclude adequate relief in the probate court.\xe2\x80\x9d Id. at 219.\nThis issue was later addressed by the Fourth District in Ebeling v. Voltz, 545 So.2d 783 (Fla. 4th DCA\n1984). In Ebeling, the plaintiffs filed an action against the defendant for intentional interference with\nan expectancy of inheritance, alleging that, although they knew of the probate proceeding, they did\nnot contest the will in probate court because the defendant made fraudulent statements inducing\nthem not to contest the will. The trial court granted the defendant\xe2\x80\x99s motion to dismiss, finding that\npursuant to Section 733.103, Florida Statutes (1983), the plaintiffs were barred from attacking the\nwill. The Fourth District reversed, finding that \xe2\x80\x9c[e]xtrinsic fraud, or in other words, fraud alleged in\nthe prevention of the will contest, as opposed to in the making of the will, would appear to be the\ntype of circumstance that would preclude relief in the probate court.\xe2\x80\x9d Id. The court noted that the\n469\n\n\x0cfraud alleged in the complaint prevented the plaintiffs from pursuing the incapacity claim in the\nprobate court, and therefore, the action \xe2\x80\x9cfalls into the category of cases that DeWitt considers\noutside the purview of Section 733.103(2), Florida Statutes.\xe2\x80\x9d Id.\nIn the instant case, we must accept the facts alleged by Mr. Schilling as true. He alleges in the\namended complaint that when the decedent began to live in Ms. Herrera\xe2\x80\x99s home, pursuant to\npowers of attorney executed by the decedent, Mr. Schilling was the decedent\xe2\x80\x99s attorney-in-fact;\nthroughout the decedent\xe2\x80\x99s numerous illnesses, Mr. Schilling made decisions regarding the decedent\xe2\x80\x99s\ncare; Mr. Schilling traveled to Miami on numerous occasions to visit the decedent, whose condition\nprogressively worsened; Mr. Schilling stayed in contact with Ms. Herrera while the decedent was\nliving in her home; Mr. Schilling relied on Ms. Herrera to obtain information regarding the decedent;\nMr. Schilling sent money to Ms. Herrera to pay for the decedent\xe2\x80\x99s care; after the decedent passed\naway, Mr. Schilling called Ms. Herrera numerous times, but she would not return his calls; and Ms.\nHerrera did not inform Mr. Schilling of his sister\xe2\x80\x99s death until after she petitioned for discharge of\nprobate. As the facts in the amended complaint sufficiently allege that Mr. Schilling was prevented\nfrom contesting the will in the probate court due to Ms. Herrera\xe2\x80\x99s fraudulent conduct, we find that\nthe trial court erred in finding that Mr. Schilling\xe2\x80\x99s claim for intentional interference with an\nexpectancy of inheritance was barred.\nAccordingly, we reverse the order dismissing Mr. Schilling\xe2\x80\x99s amended complaint, and remand for\nfurther proceedings.\nNotes, Problems, and Questions\n1. The purpose of IIE is to protect the testator\xe2\x80\x99s right to dispose of his or her property without a\nthird party improperly interfering. The person who sues is trying to receive the inheritance that the\ntestator wanted him or her to have. Prior to filing an IIE claim, the person must exhaust all of his\nprobate remedies. Why did the Schilling court find an exception to this rule?\n2. James G. Sawyer divorced Pumpkin Sawyer after twenty years of marriage. The couple had one\nchild, Moon Sawyer. Shortly after the divorce, James married Iris Sawyer. Moon accused Iris of\nbreaking up her parents\xe2\x80\x99 marriage. She also claimed that Iris attempted to exclude her from her\nfather\'s life. According to Moon, her father resorted to secret meetings with her because Iris\ndisapproved of their meetings. At some point, Moon lost contact with her father. James executed a\nwill in July 1999. In the will, he provided that his entire estate was to go to Iris. In the event that Iris\npreceded him in death, James bequeathed household items to Iris\'s daughters Pam and Joan, $10,000\neach to Iris\'s two nieces, $1 to Moon, and the rest of the estate to Hastie. Hastie was designated as\ntrustee, and Wade, Hastie\'s ex-husband, was designated trustee in the event that Hastie could not\nserve. Wade also drafted the will and signed it as a witness. James died on November 25, 2000.\nMoon claimed that she did not learn of her father\'s death until April 3, 2007, when she called his\nhouse to wish him a happy birthday. According to Moon, Iris informed her that her father had died\nyears ago. The obituary announcing his death did not list Moon as James\'s daughter. Moon filed a\ncause of action for IIE. What is the likely outcome of that case?\n3. The tort cannot be invoked if the challenge is based on the testator\xe2\x80\x99s lack of mental capacity or\nan insane delusion.\n470\n\n\x0cClass Discussion Tool\n(Answer this hypothetic relying on the information contain in Chapters Nine and Ten)\nAnna was diagnosed with breast cancer. Her doctor treated the cancer with radiation and\nchemotherapy. In order to combat the side effects of the treatment, Anna got a prescription for\nmedical marijuana. Anna smoked three joints a day to alleviate her pain and nausea. Anna moved in\nwith her only child, Jean, so she could take care of her. Jean believed in natural healing, so she put\nAnna on a regiment of organic food, herbal supplements and yoga. Maggie, Anna\xe2\x80\x99s best friend, told\nAnna that Dr. Oz said that some herbal supplements increased the growth of cancer cells. In fact,\nDr. Oz stated that some herbal supplements might decrease the growth of cancer cells. On the day\nshe watched the show, Maggie was having trouble with her hearing aide. Anna refused to take the\nherbal supplements. Jean got tired of fighting with Anna over the supplements, so she started\nslipping them into Anna\xe2\x80\x99s food.\nOne day, Anna saw Jean open up a capsule and sprinkle it over her pasta. After that, Anna became\nconvinced that Jean was poisoning her. Anna shared her concerns with Maggie. Maggie told her\npastor, Donald, that Anna was in danger. Maggie took Anna to the church to meet with Donald.\nAfter the meeting, Anna was so grateful that she gave the church a $500 donation.\nWhen he discovered that she had money, Donald convinced Anna to move into an apartment\ncomplex owned by his church. Donald and the other members of the church prevented Jean from\nvisiting Anna. Eventually, Donald took Anna to the church\xe2\x80\x99s attorney and had her execute a will\nleaving all of her money in trust for the benefit of the church.\nA few months later, Anna read in a magazine that Dr. Oz stated that some herbal supplements\nmight decrease the growth of cancer cells. Consequently, Anna told Donald that she was wrong\nabout Jean. Anna told him that she planned to return home to Jean and to modify her will to leave\nher entire estate to Jean. In response, David placed guards, so that Anna could not leave the\napartment.\nOne night, Maggie helped Anna escape from the apartment and reunite with Jean. Anna died a few\ndays later before she could amend her will.\nJean plans to challenge the validity of the will. What are her strongest arguments and the\nchurch\xe2\x80\x99s possible responses?\n\n471\n\n\x0cChapter Eleven: Attested Wills\n11.1\n\nIntroduction\n\nMost jurisdictions that have will statutes that are pretty similar. The only differences lie in\nthe number of attesting witnesses that are required. The will execution process is a solemn ceremony\nthat must be taken seriously. The legislatures want the testator to go through a ritual, so that it is\nclear that the testator is making a thoughtful disposition of his or her property. The testator usually\nhas to sign or acknowledge his or her will in the presence of two or more disinterested witnesses.89\nThe main components of a valid will execution are (1) a writing, (2) signature by the testator and, (3)\nattestation by witnesses. Most of the litigation challenging the validity of the will execution process\ninvolves one or all of these elements. Therefore, the three parts of this chapter include cases\nanalyzing those issues. Some states require the testator\xe2\x80\x99s signature to be at the end of the will. This is\nreferred to as a subscription. In a few states, the testator is required to publish his or her will by\ntelling the witnesses that the written instrument is his or her will.\n\nVa. Code Ann. 64.2-403. Execution of wills; requirements\nA. No will shall be valid unless it is in writing and signed by the testator, or by some other person in\nthe testator\'s presence and by his direction, in such a manner as to make it manifest that the name is\nintended as a signature.\n***********************\nC. A will not wholly in the testator\'s handwriting is not valid unless the signature of the testator is\nmade, or the will is acknowledged by the testator, in the presence of at least two competent\nwitnesses who are present at the same time and who subscribe the will in the presence of the\ntestator. No form of attestation of the witnesses shall be necessary.\n11.2\n\nWriting\n\nThe writing requirement comes from the Statute of Frauds and the Wills Act. The purpose\nof the writing mandate is evidentiary. At the time the will is submitted for probate, the testator is no\nlonger available to be questioned by the court. The best evidence of the testator\xe2\x80\x99s intentions is the\nwritten instrument. What constitutes a writing? When the original Wills Act was enacted, the answer\nto that question was relatively easy. Nonetheless, times have changed and the manner in which\npeople communicate is evolving. This may complicate the wills writing requirement. Is a text\nmessage a writing? What about an email? At least one state legislature permits electronic wills.\n\nN.R.S. 133.085. Electronic will (Nevada)\n1. An electronic will is a will of a testator that:\n89\n\nLa. Civ. Code Ann. art. 1577 (2016)(requires two witnesses and a notary.)\n\n472\n\n\x0c(a) Is written, created and stored in an electronic record;\n(b) Contains the date and the electronic signature of the testator and which includes, without\nlimitation, at least one authentication characteristic of the testator; and\n(c) Is created and stored in such a manner that:\n(1) Only one authoritative copy exists;\n(2) The authoritative copy is maintained and controlled by the testator or a custodian designated by\nthe testator in the electronic will;\n(3) Any attempted alteration of the authoritative copy is readily identifiable; and\n(4) Each copy of the authoritative copy is readily identifiable as a copy that is not the authoritative\ncopy.\n2. Every person of sound mind over the age of 18 years may, by last electronic will, dispose of all of\nhis or her estate, real and personal, but the estate is chargeable with the payment of the testator\'s\ndebts.\n3. An electronic will that meets the requirements of this section is subject to no other form, and may\nbe made in or out of this State. An electronic will is valid and has the same force and effect as if\nformally executed.\n4. An electronic will shall be deemed to be executed in this State if the authoritative copy of the\nelectronic will is:\n(a) Transmitted to and maintained by a custodian designated in the electronic will at the custodian\xe2\x80\x99s\nplace of business in this State or at the custodian\xe2\x80\x99s residence in this State; or\n(b) Maintained by the testator at the testator\xe2\x80\x99s place of business in this State or at the testator\xe2\x80\x99s\nresidence in this State.\n5. The provisions of this section do not apply to a trust other than a trust contained in an electronic\nwill.\n6. As used in this section:\n(a) \xe2\x80\x9cAuthentication characteristic\xe2\x80\x9d means a characteristic of a certain person that is unique to that\nperson and that is capable of measurement and recognition in an electronic record as a biological\naspect of or physical act performed by that person. Such a characteristic may consist of a fingerprint,\na retinal scan, voice recognition, facial recognition, a digitized signature or other authentication using\na unique characteristic of the person.\n(b) \xe2\x80\x9cAuthoritative copy\xe2\x80\x9d means the original, unique, identifiable and unalterable electronic record of\nan electronic will.\n(c) \xe2\x80\x9cDigitized signature\xe2\x80\x9d means a graphical image of a handwritten signature that is created,\ngenerated or stored by electronic means.\nProblems\n1. Anthony sent his lawyer the following email message \xe2\x80\x9cI leave my house to Cory Baker; I leave my\nseason football tickets to Benny; I leave the rest of my estate to my son, Dennis.\xe2\x80\x9d The following\n473\n\n\x0cinformation was included at the end of the email Anthony Turner (Testator, 11-23-10); Betty Green\n(Witness 1, 11-23-10); Sally Matthews (Witness 2, 11-23-10). Does this satisfy the writing\nrequirement under the common law and/or under the Nevada statute?\n2. Gordon Beckerson recorded the following on his IPhone: \xe2\x80\x9cMy name is Gordon Beckerson. I am\nof sound mind and body. Today is August 12, 2011. I am here with three people who are willing to\nwitness my will. Say hello Janet Watson. Smile for the camera Terrie Baker. You\xe2\x80\x99re up next Charlie\nDavis. I would like to have my estate split evenly between State Law School and State Medical\nSchool. I am intentionally disinheriting my children, Skip and Muffie.\xe2\x80\x9d Gordon took the sim card\nout of the telephone and placed it in an envelope. Then, he signed the seal of the envelope and\nmailed it to his lawyer. Later, he called the lawyer and said, \xe2\x80\x9cDon\xe2\x80\x99t watch the video I\xe2\x80\x99m sending you\nuntil after I\xe2\x80\x99m dead and buried. A month later, Gordon committed suicide. Does this satisfy the\nwriting requirement under the common law and/or under the Nevada statute?\n11.3\n\nSigned by the Testator\n\nThe testator can sign the will or have someone else sign on his or her behalf. The will must\nbe signed in the presence of the required number of witnesses. The purpose of that requirement is\nto protect the testator from fraud, duress and undue influence. In some jurisdictions, the testator has\nthe option of signing the will in the presence of the witnesses or acknowledging to the witnesses that\nthe signature on the will belongs to him or her.\n11.3.1 Signature Problems\nThe preference is for the testator to sign his or her full legal name at the end of the will.\nHowever, courts have found marks, crosses, abbreviations, or nicknames to be sufficient to satisfy\nthe signature requirement. A testator can legally authorize a person to sign on the testator\xe2\x80\x99s behalf.\nThe testator can also have someone assist him or her in signing the will.\n\nTaylor v. Holt, 134 S.W.3d 830 (Tenn. Ct. App. 2003)\nSWINEY, J.\nSteve Godfrey prepared his last will and testament on his computer and affixed his computer\ngenerated signature at the end. He had two neighbors witness the will. Mr. Godfrey died\napproximately one week later. Doris Holt (\xe2\x80\x9cDefendant\xe2\x80\x9d), Mr. Godfrey\xe2\x80\x99s girlfriend, submitted the\nwill for probate. Donna Godfrey Taylor (\xe2\x80\x9cPlaintiff\xe2\x80\x9d), Mr. Godfrey\xe2\x80\x99s sister, filed a complaint alleging,\nin part, that the will was not signed and claiming that Mr. Godfrey had died intestate. The Trial\nCourt granted Defendant summary judgment holding there were no undisputed material facts and\nthat all legal requirements concerning the execution and witnessing of a will had been met. Plaintiff\nappeals. We affirm.\nBackground\n\n474\n\n\x0cSteve Godfrey (\xe2\x80\x9cDeceased\xe2\x80\x9d) prepared a document in January of 2002, purporting to be his last will\nand testament. The one page document was prepared by Deceased on his computer. Deceased\nasked two neighbors, Hershell Williams and Teresa Williams to act as witnesses to the will. Deceased\naffixed a computer generated version of his signature at the end of the document in the presence of\nboth Hershell and Teresa Williams. Hershell and Teresa Williams then each signed their name below\nDeceased\xe2\x80\x99s and dated the document next to their respective signatures. In the document, Deceased\ndevised everything he owned to a person identified only as Doris. Deceased died approximately one\nweek after the will was witnessed.\nDefendant, Deceased\xe2\x80\x99s girlfriend, who lived with Deceased at the time of his death, filed an Order\nof Probate attempting to admit the will to probate and requesting to be appointed the personal\nrepresentative of the estate. Defendant also filed affidavits of both Hershell and Teresa Williams\nattesting to the execution of the will. The affidavits each state that the affiant was a witness to\nDeceased\xe2\x80\x99s last will and testament and that each had signed at Deceased\xe2\x80\x99s request in the presence of\nboth Deceased and the other witness. The affidavits both also state: \xe2\x80\x9cThat the Testator, Steve\nGodfrey personally prepared the Last Will and Testament on his computer, and using the computer\naffixed his stylized cursive signature in my sight and presence and in the sight and presence of the\nother attesting witness....\xe2\x80\x9d Further, each affidavit states that the affiant \xe2\x80\x9cwas of the opinion that the\nTestator, Steve Godfrey, was of sound mind\xe2\x80\x9d at the time the will was witnessed.\nPlaintiff, Deceased\xe2\x80\x99s sister, filed a complaint alleging, inter alia, that she is the only surviving heir of\nDeceased, that Deceased died intestate, that the document produced for probate was void because it\ndid not contain Deceased\xe2\x80\x99s signature, and that Doris Holt has no blood relation or legal relation to\nthe Deceased and should not have been appointed administratrix of Deceased\xe2\x80\x99s estate. Defendant\nfiled a motion to dismiss or in the alternative for summary judgment claiming that all of the legal\nrequirements concerning the execution and witnessing of a will under Tennessee law had been met\nand filed the supporting affidavits of Hershell and Teresa Williams.\nThe Trial Court entered an order on December 23, 2002, granting Defendant summary judgment.\nThe December order held that all of the legal requirements concerning the execution and witnessing\nof a will under Tennessee law had been met and held that Defendant was entitled to summary\njudgment as a matter of law. Plaintiff appeals.\nDiscussion\nAlthough not stated exactly as such, Plaintiff raises two issues on appeal: 1) whether the Trial Court\nerred in finding that the computer generated signature on the will complied with the legal\nrequirements for the execution of a will, and, thus, erred in granting Defendant summary judgment;\nand, 2) whether an alleged beneficiary under a will should be allowed to receive benefits from the\nestate even though the will refers to the beneficiary only by her first name. We will address each\nissue in turn.\nTenn. Code Ann. \xc2\xa7 32-1-104 addresses the requisite formalities for the execution and witnessing of a\nwill in Tennessee and states:\nThe execution of a will, other than a holographic or nuncupative will, must be by the signature of\nthe testator and of at least two (2) witnesses as follows:\n475\n\n\x0c(1) The testator shall signify to the attesting witnesses that the instrument is his will and either:\n(A) Himself sign;\n(B) Acknowledge his signature already made; or\n(C) At his direction and in his presence have someone else sign his name for him; and\n(D) In any of the above cases the act must be done in the presence of two (2) or more attesting\nwitnesses.\n(2) The attesting witnesses must sign:\n(A) In the presence of the testator; and\n(B) In the presence of each other.\nTenn. Code Ann. \xc2\xa7 32-1-104 (1984) The definition of \xe2\x80\x9csignature\xe2\x80\x9d as used in the statute is provided\nby Tenn. Code Ann. \xc2\xa7 1-3-105, which states: \xe2\x80\x9cAs used in this code, unless the context otherwise\nrequires: ... \xe2\x80\x98Signature\xe2\x80\x99 or \xe2\x80\x98signed\xe2\x80\x99 includes a mark, the name being written near the mark and\nwitnessed, or any other symbol or methodology executed or adopted by a party with intention to\nauthenticate a writing or record, regardless of being witnessed.\xe2\x80\x9d Tenn. Code Ann. \xc2\xa7 1-3-105(27)\n(1999).\nWe begin by considering whether the Trial Court erred in finding that the computer generated\nsignature on the will complied with the legal requirements for the execution of a will, and, thus,\nerred in granting Defendant summary judgment.\nPlaintiff claims that the will was not signed. Plaintiff\xe2\x80\x99s brief argues \xe2\x80\x9cthere is no indication of any type\nor nature that there was a mark of any type made by the testator.\xe2\x80\x9d Plaintiff cites to Sunderland v. Bailey\n(In Re. Estate of Wait), a 1957 case in which this Court found that \xe2\x80\x9cthe testatrix may have made a\nmark of some sort, either an initial or one or more letters of her signature, on the will but she clearly\nindicated that she did not consider such mark or marks to constitute her signature.\xe2\x80\x9d Sunderland v.\nBailey (In Re. Estate of Wait), 43 Tenn. App. 217, 306 S.W.2d 345, 348 (1957). The witnesses in Estate\nof Wait testified that the testatrix had stated to them when the will was witnessed that she could not\nsign the will at that time, but would sign it later. Id. at 347. The Wait testatrix actually signed the will\na day or two after it was witnessed. Id.\nThe Wait testatrix stated to the witnesses that she did not consider any mark to be her signature and\nthis is borne out by the fact that she later signed the will. The Wait Court did not \xe2\x80\x9cfind it necessary\nor proper ... to rule whether or not a testator may legally sign a will by mark.\xe2\x80\x9d Id. at 348. Rather, the\nCourt upheld the determination that the will was not entitled to probate based upon the fact that the\nwill was not executed and witnessed in conformity with the statute. Id. at 349.\nThe situation in Estate of Wait is dissimilar to the instant case. In the case at hand, Deceased did\nmake a mark that was intended to operate as his signature. Deceased made a mark by using his\ncomputer to affix his computer generated signature, and, as indicated by the affidavits of both\nwitnesses, this was done in the presence of the witnesses. The computer generated signature made\nby Deceased falls into the category of \xe2\x80\x9cany other symbol or methodology executed or adopted by a\nparty with intention to authenticate a writing or record,\xe2\x80\x9d and, if made in the presence of two\nattesting witnesses, as it was in this case, is sufficient to constitute proper execution of a will.\nFurther, we note that Deceased simply used a computer rather than an ink pen as the tool to make\nhis signature, and, therefore, complied with Tenn. Code Ann. \xc2\xa7 32-1-104 by signing the will himself.\n476\n\n\x0cDefendant made a properly supported motion for summary judgment claiming there were no\ndisputed issues of material fact and that Defendant was entitled to judgment as a matter of law.\nDefendant supported this assertion with the affidavits of Hershell and Teresa Williams, the\nwitnesses to the will, attesting to the circumstances surrounding the execution of the will. As\nDefendant made a properly supported motion, the burden shifted to Plaintiff to set forth specific\nfacts establishing the existence of disputed, material facts which must be resolved by the trier of fact.\nPlaintiff failed to do this. Plaintiff produced a letter that Plaintiff\xe2\x80\x99s appellate brief claims \xe2\x80\x9cset out a\nvery different picture of [Deceased\xe2\x80\x99s] feelings towards [Defendant].\xe2\x80\x9d However, this letter has\nabsolutely no relevance as to whether the will was properly executed and witnessed. Plaintiff failed\nto set forth specific facts establishing the existence of disputed, material facts regarding the\nexecution of the will which must be resolved by the trier of fact.\nThere are no disputed material facts and, as discussed above, Defendant is entitled to judgment as a\nmatter of law because the will was executed and witnessed in conformity with the statute. Thus, we\nhold that the Trial Court did not err in holding that the legal requirements for the execution and\nwitnessing of a will had been met.\nThe other issue Plaintiff raises concerns whether an alleged beneficiary under a will should be\nallowed to receive benefits from the estate even though the will refers to the beneficiary by first\nname, but fails to state the beneficiary\xe2\x80\x99s last name. The will devises everything Deceased owned to\nsomeone named Doris, but fails to give a last name for Doris. Plaintiff apparently raises an issue\nregarding whether the Doris named in the will is the Defendant.\nThe Trial Court based its decision to grant summary judgment upon whether the will in question\nmet the statutorily prescribed elements to be a valid last will and testament. The Trial Court did not\nconsider or decide whether the Doris named in the will is the Defendant as this issue is not germane\nto whether the will was properly executed and witnessed in conformity with Tennessee law. We\nagree. Defendant was entitled to summary judgment because the will was properly executed and\nwitnessed in conformity with Tennessee law. The identification of the beneficiary has no bearing on\nthe dispositive issue before the Trial Court of whether this was Deceased\xe2\x80\x99s validly executed and\nwitnessed last will and testament. We affirm the grant of summary judgment.\nConclusion\nThe judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Court for such\nfurther proceedings as may be required, if any, consistent with this Opinion and for collection of the\ncosts below. The costs on appeal are assessed against the Appellant, Donna Godfrey Taylor, and her\nsurety.\n\nMatter of Will of Bernatowicz, 233 A.D.2d 838 (N.Y. App. Div. 1996)\nMEMORANDUM:\nWe conclude that Surrogate\xe2\x80\x99s Court erred in refusing to admit the will of decedent on the ground\nthat proponent failed to demonstrate due execution of the will. The record shows that decedent,\nwho was very ill, attempted to sign his name to his will, but had difficulty doing so. When, after\n477\n\n\x0cseveral attempts, decedent continued to experience difficulty, decedent\xe2\x80\x99s counsel advised proponent\nthat she could aid decedent by steadying his hand. Counsel further advised proponent that she could\nnot sign the document for decedent or move his hand. The Surrogate concluded that proponent\ncontrolled rather than assisted decedent in signing the document and that its execution was therefore\ninvalid. We disagree.\nThe question whether a signature is assisted or controlled does not turn on the extent of the aid, but\nrather whether the act of \xe2\x80\x9csigning was in any degree an act of the testator, acquiesced in and adopted\nby him\xe2\x80\x9d (Matter of Kearney, 69 App. Div. 481, 483, 74 N.Y.S. 1045). Here, the record establishes that\nthe act of signing was the act of decedent, acquiesced in and adopted by him and, therefore, the\nsignature was assisted rather than controlled. We conclude that the fact that decedent did not\nrequest assistance but, rather, that his counsel suggested that he be assisted does not render the\nsignature invalid. We further conclude that the testimony of the witnesses regarding the\ncircumstances surrounding the witnessing of the will demonstrates compliance with the other\nrequirements of EPTL 3-2.1. That testimony sufficiently establishes that decedent signed the\ndocument purported to be his will and requested the witnesses to sign the document (see generally,\nMatter of Dujenski, 147 A.D.2d 958, 537 N.Y.S.2d 402). We reject the contention of respondents that\nthe execution of the will was invalid because decedent declared the document to be his will before,\nrather than after, he signed it (see, Matter of Haber, 118 Misc. 179, 182, 192 N.Y.S. 616; EPTL 32.1[a][1][B]).Consequently, we reverse the order, reinstate the petition and remit the matter to\nOrleans County Surrogate\xe2\x80\x99s Court for further proceedings on the petition.\nOrder reversed on the law without costs, petition reinstated and matter remitted to Orleans County\nSurrogate\xe2\x80\x99s Court for further proceedings on petition.\nBALIO, Justice, dissenting.\nI respectfully dissent. The Surrogate found that the testator did not ask for assistance in signing his\npurported last will and testament and that, based upon the substantial difference in the manner and\nquality of the testator\xe2\x80\x99s handwriting after Sherry Callara physically assisted in the signing, she did\nmore than steady his hand, and that she controlled the movement of his hand. Thus, the court\nconcluded that the proposed last will and testament had not been duly executed.\nEPTL 3-2.1(a)(1) requires that the testator execute a will by signing it or by having another person\nsign it in his name \xe2\x80\x9cand by his direction\xe2\x80\x9d. Where, as here, the testator is physically infirm, a third\nperson may assist the testator by holding and guiding his hand or arm (see, Matter of Morris, 208\nA.D.2d 733, 734, 617 N.Y.S.2d 513; Matter of Kearney, 69 App. Div. 481, 483, 74 N.Y.S.\n1045).Although the testator must request the assistance (see, Matter of Morris, supra; Matter of Kearney,\nsupra),the fact that the testator desired such assistance may be inferred from the circumstances (see,\nMatter of Lewis, 193 Misc. 183, 80 N.Y.S.2d 757; Matter of Knight, 87 Misc. 577, 150 N.Y.S. 137).The\nhearing testimony establishes that the testator was on his deathbed. In fact, he died a few hours after\nattempting to sign the will. Two persons had to prop the testator up to a sitting position so that he\ncould attempt to sign the will. One of those persons is a legatee under the proposed will and the\nother, Sherry Callara, is the mother of the other legatee and is named the executrix under the will.\nWhen the testator appeared to be having difficulty signing his name, his attorney suggested that\nCallara assist by holding his hand steady. The Surrogate determined, based upon the testimony and\nthe appearance of the signature, that the testator did not request Callara\xe2\x80\x99s assistance and that Callara\nactually controlled the testator\xe2\x80\x99s conduct in signing the will. That determination, made by the Judge\n478\n\n\x0cwho presided at the hearing and heard the testimony, \xe2\x80\x9cis entitled to great weight in this case, which\nhinged on the credibility of the witnesses\xe2\x80\x9d (Matter of Margolis, 218 A.D.2d 738, 739, 630 N.Y.S.2d\n574,see also, Matter of Morris, supra; Hanley v. Williamson, 186 A.D.2d 1010, 590 N.Y.S.2d 821). I\nperceive no basis in this record to disturb the Surrogate\xe2\x80\x99s findings.\nNotes, Problems, and Questions\n1. A testator does not have to sign his written name. A mark qualifies as a signature for purposes of\nexecuting a will. Ferguson v. Ferguson, 47 S.E.2d 346 (Vir. 1948).\n2. Electronic signatures are becoming more common and more legally acceptable. Courts have\nupheld electronic signatures in real estate transactions (Electronic Transactions Act) and commercial\ntransactions (Uniform Electronic Signature Act). Some courts permit litigants to file courts\ndocuments electronically (Electronic Signatures and Records Act-the use of an electronic signature\nshall have the same validity and effect as the use of a signature offered by hand). This trend has not\ntaken hold in probate law. Why do you think that is the case?\n3. The testator\xe2\x80\x99s signature and the signature of the witnesses do not have to appear on the same\npage as long as all of the signature pages are physically connected as part of the will. In re Estate of\nBrannon, 441 S.E.2d 248 (Ga. Ct. App. 1994).\n4. The testator must sign or acknowledge the will prior to having the witnesses sign it. The\nwitnesses\xe2\x80\x99 role is to attest that the testator has signed or acknowledged the will. Thus, it makes sense\nthat the witnesses should not sign first. Nonetheless, if the testator and the witnesses are deemed to\nhave signed as a part of a single event, the order of the signing is not important. Restatement (Third)\nof Property: Wills and Other Donative Transfers 3.1, cmt. M (1999).\n5. Subscription Requirement: Some states require the testator\xe2\x80\x99s signature to be at the end of the\nwill. See 84 Okl.St. Ann. \xc2\xa7 854(B)(West 2016).\n6. T suffered from Parkinson disease. T attempted to sign his will several times, but the tremors\nmade it difficult. Finally, A, who was witnessing the signing of the will, grabbed T\xe2\x80\x99s hand and held it\nsteady, so that he could sign the will. T\xe2\x80\x99s son, B, challenged the validity of the will. What is the\npossible outcome of the case? See Matter of Will of Bennatovicz, 233 A.D.2d 838 (N.Y. App. Div. 1996);\nPatrick v. Rankin, 506 S.W.2d 853 (Ark. 1976); Matter of Weaver\xe2\x80\x99s Estate, 365 N.E.2d 1038 (Ill. App.\n1977); Vandruff v. Rinehart, 29 Pa. 232 (1857).\n7. T was in the hospital when he executed his will. While in the process of signing the will, T had a\nstroke. T only managed to sign his first name. T died without ever regaining consciousness. Was T\xe2\x80\x99s\nwill validly executed?\n11.4\n\nIn the Presence\n\nThe testator must sign or acknowledge the will in the presence of the witnesses. The\nwitnesses are required to sign the will in the presence of the testator and each other. The law does\nnot provide a specific definition for presence. However, courts have applied two tests when\n479\n\n\x0cdetermining whether or not the testator met the presence requirement---line of sight and conscious\npresence.\n11.4.1 Line of Sight\nUnder the line-of-sight test, the testator is deemed to be in the presence of the witnesses if\nthey are capable of seeing one another in the act of signing the will. The proponent of the will does\nnot have to prove that the witnesses actually saw the testator sign the will. He or she just has to\nshow that the witnesses had the opportunity to see the signing.\n\nWalker v. Walker, 174 N.E. 541 (Ill. 1930)\nFARMER, J.\nFred Walker, a son of Alice Ann Walker, deceased, filed in the probate court of Cook county a\npetition for the probate of a written instrument alleged to be the last will and testament of his\nmother and in which the petitioner was designated as the chief beneficiary and executor. On a\nhearing of the petition on July 14, 1927, the will was admitted to probate. John Walker, another son\nof the deceased, and two of his sisters, prosecuted an appeal to the circuit court of Cook county.\nThe testimony of the three subscribing witnesses to the will was presented, and the court found the\ninstrument to be the last will and testament of Alice Ann Walker and an order was entered that the\nwill be admitted to probate. An appeal was prosecuted by John Walker to this court (336 Ill. 191,\n168 N.E. 299), and the cause was transferred to the Appellate Court for the First District, where the\njudgment of the circuit court was affirmed (256 Ill. App. 218). A petition for writ of certiorari has\nbeen allowed by this court to review the judgment of the Appellate Court.\nIt is contended by plaintiff in error that the instrument was not signed or acknowledged in the\npresence of two credible witnesses, and was not attested by two such witnesses in the presence of\nthe testatrix, as provided by section 2 of the Wills Act (Cahill\xe2\x80\x99s Rev. St. 1927, c. 148, par. 2).\nThe record as presented discloses the following facts concerning the testatrix and the execution,\nacknowledgment, and attestation of her alleged will: The instrument consisted of three typewritten\npages, and on the margin of each page the signature of the testatrix appears. The last page contains\nthe further signature of the testatrix, and the instrument is dated March 27, 1926. Immediately\nfollowing her signature is a formal attestation clause containing the language frequently used in such\nclauses. Subscribed to this clause are the names and addresses of Robert Whitelaw, Lucy M.\nWhitelaw, and David H. Frost. These witnesses testified upon the hearing that they believed the\ntestatrix at the time she executed the instrument was of sound mind and memory and that there was\nno fraud, duress, or undue influence. On Saturday afternoon, March 27, 1926, Fred Walker, a son of\nthe testatrix, talked with the Whitelaws at their residence in Park Ridge over the telephone and asked\nif they and Frost, a brother of Mrs. Whitelaw, would witness his mother\xe2\x80\x99s will. Whitelaw said they\nwould do so, and Fred told him he would bring his mother to Whitelaw\xe2\x80\x99s home. One of the\nWhitelaws either telephoned Frost, who lived next door, or went to his home and spoke to him\nabout it, and he agreed to act as a witness.\n\n480\n\n\x0cLater in the afternoon Fred and his mother arrived at the Whitelaw residence in a Hupmobile sedan.\nThe son parked the car facing east and immediately in front of the Whitelaw residence, which faced\nsouth on this street. The testatrix remained seated in the rear seat of the automobile and on the side\nnearest the house. Her location was about thirty-five feet from the south windows of the Whitelaw\nliving room. The Whitelaw bungalow is located on the north side of the street, which runs east and\nwest in front of the house. On the front of the house was a porch about six or eight feet wide. It\nwas roofed and was about four feet above the walk which led to the house. There were six or seven\nsteps leading to the porch from the sidewalk, but no steps from the porch to the inside of the house.\nThere was a little railing, about two feet high on the outside of the porch, which enclosed it. Three\nwindows on the south side of the living room faced on this porch. Inside of the living room was a\nlibrary table about two feet wide and about forty-five inches long which stood lengthwise in front of\ntwo of the living room windows and about three inches from them.\nThe son went into the house where Mr. and Mrs. Whitelaw and Frost were, produced the\ninstrument, and requested the three persons to sign it as witnesses. Whitelaw said he wanted to make\nsure it was the will and signature of the testatrix, and he took the will and went out to the car in\nwhich the testatrix was sitting. The other parties remained in the house. They saw Whitelaw go to\nthe car and hand the instrument to the testatrix, but did not hear anything that was said. Whitelaw\nstated on the hearing that he asked the testatrix if it was her will and signature, and she said that it\nwas. He then returned to the house with the will and told the other witnesses that he was satisfied it\nwas her will and signature and it was all right for them to sign it as witnesses. The writing was placed\nupon the table in the living room and signed by the three subscribing witnesses. Whitelaw signed his\nname first, standing at the north side of the table. He could not say that the testatrix was looking at\nthe house when he signed, but when he looked out he saw her and it is his recollection she was\nlooking at him, but he could not say for sure. Mrs. Whitelaw signed second, and she stood at the\nside of the table, facing east. As she signed she looked out of the window and saw the testatrix, and\nthe testatrix was facing east, but Mrs. Whitelaw said she saw the testatrix\xe2\x80\x99s eyes looking at witness in\nthe house. Frost signed last, and was standing in the same position that Whitelaw was when the\nlatter executed the instrument. Frost stated when he signed he looked out and saw the testatrix\nlooking toward the house, but later stated that whether it was at the time he was signing or not he\ndid not know, but he did know that she was looking at the window when he looked out.\nAfter the witnesses signed their names, Fred took possession of the will. Mrs. Whitelaw walked out\nto the automobile where the testatrix was and inquired about her health. Shortly afterward Whitelaw,\nFrost, and Fred came out of the house and walked toward the car. When about ten feet from the\ncar, Frost spoke to the testatrix, though he testified he was not acquainted with her, and went to his\nhome. Fred had the folded instrument in his hand and handed it to the testatrix. The Whitelaws\nwere standing by the side of the car, or nearby, and Fred thanked them for signing the will. The\ntestatrix nodded her head in assent and said she was glad it was done. This was the only reference\nmade to the will by the testatrix in the presence of Mrs. Whitelaw, and at that time Frost had gone to\nhis home.\nSection 2 of the Statute of Wills (Cahill\xe2\x80\x99s Rev. St. 1927, p. 2503) provides that all wills shall be\nreduced to writing and signed by the testatrix, or by some person in her presence and by her\ndirection, and attested in the presence of the testatrix by two or more credible witnesses, two of\nwhom shall declare on oath before the county court of the proper county that they were present and\nsaw the testatrix sign the will in their presence or acknowledge the same to be her act and deed, and\nthat they believed the testatrix to be of sound mind and memory at the time of signing or\n481\n\n\x0cacknowledging the will. It is indispensable that the statutory requirements be complied with to make\na valid will. Harris v. Etienne, 315 Ill. 540, 146 N.E. 547.It is not necessary that the attesting witnesses\nsee the signature of the testatrix upon the face of the will, or that an acknowledgment of the\nsignature be made to them by the testatrix, or that they know that the instrument is a will, but the\nstatutory requirements are satisfied if the testatrix acknowledges the execution of the will. Thornton v.\nHerndon, 314 Ill. 360, 145 N.E. 603; In re Will of Barry, 219 Ill. 391, 76 N.E. 577; Hoover v. Keller, 339\nIll. 126, 171 N.E. 163.\nIn the instant case the instrument was signed before the three witnesses saw it; hence it was\nnecessary for the testatrix to acknowledge execution thereof to at least two of the witnesses.\nTestatrix asked none of the witnesses to subscribe their names to the instrument, but she did\nacknowledge to Whitelaw, one of the subscribing witnesses, before any of the three witnesses\naffixed their signatures, that the instrument was her will and that her signature thereon was genuine.\nFrost had no information relative to an acknowledgment by the testatrix except as told to him by\nWhitelaw. Mrs. Whitelaw received like information from her husband, and, after signing as a witness,\nshe was present at the car when the son presented the folded instrument to his mother and thanked\nthe Whitelaws for their services. The mother nodded assent and said she was glad it was done. This\nact on the part of the testatrix, who was somewhat lame, but who, so far as this record shows, had\nno other physical or mental infirmity, cannot be construed as an acknowledgment of her execution\nof the will. She merely joined in the expression of her son in thanking the Whitelaws for their\ntrouble or inconvenience. The statute does not permit or contemplate that witnesses are to be\nsecured for a testatrix, that they shall subscribe their names to a writing which only one of the\nwitnesses knows and states to be the will of the testatrix, and thereafter have their action, as well as\nthe instrument, approved or ratified by the testatrix.\nThe further question to be considered is whether the instrument was attested in the presence of the\ntestatrix. She was about 75 years of age at the time here in question, and remained seated in the rear\nseat of the sedan automobile which her son had parked in front of the Whitelaw residence. She sat\nfacing east, and was about thirty-five feet distant from the table situated in the living room and in\nfront of the porch windows of the Whitelaw house, and upon which table the alleged will was placed\nwhen the three witnesses signed their names thereto. Fred Walker, a son of testatrix, went into the\nWhitelaw house, where he produced the will and asked the three witnesses to sign it. One of them,\nWhitelaw, took the will and went out to the car where the testatrix was and asked her about the\ninstrument and her signature. He returned into the living room of the house with the will and\nreported his interview with her before the witnesses signed their names. The will was thereafter\ngiven to the son, who remained in the room while the attesting witnesses subscribed their names. He\nfolded up the instrument and delivered it to the testatrix. There is nothing in the record showing\nthat she saw the will from the time it was in Whitelaw\xe2\x80\x99s possession at the car until given to her by\nher son Fred. Neither is there any proof that she ever saw the signatures of the subscribing witnesses\nafter they were affixed. What constitutes attestation in the presence of a testator has frequently been\nexplained, and a general statement of the rule is that the testator must be so situated, both as to the\nwill and the witnesses, that he may, if he chooses, see both in the act of attestation. The plain\nmeaning of the law is that both the will and witnesses must be in the presence of the testator, so that\nhe may without any effort or change of his position see both and see the act of attestation. It is not\nan attestation in his presence if he cannot see the act, but merely concludes from the surrounding\ncircumstances and what he understands is going on that an attestation is taking place. It is immaterial\nwhether the attestion is in the same room or an adjoining one, but the essential thing is that the\ntestator must have an opportunity of personal knowledge, by his own vision and in his actual\n482\n\n\x0cposition, that the witnesses are signing their names to the instrument which he has signed as his will\nin accordance with his request. Quirk v. Pierson, 287 Ill. 176, 122 N.E. 518. It is not enough for the\ntestator to be able to judge from such act as he may see that the witnesses were signing his will. It is\nessential to the attestation which the law requires that the testator have the opportunity of seeing the\nvery act of attestation, the will, the witnesses and their act. Snyder v. Steele, 287 Ill. 159, 122 N.E. 520.\nAll the authorities declare that the object of the law is to prevent fraud and imposition upon the\ntestator or the substitution of a surreptitious will, and to effect that object it is necessary that the\ntestator shall be able to see and know that the witnesses have affixed their names to the paper which\nhe has signed and acknowledged as his will. As we view the facts presented by this record, there was\nno way testatrix could have known of her own knowledge that her will was being signed by the three\nsubscribing witnesses and that she had not been imposed upon.\nCounsel for defendant in error asserts that the attestation clause recites all the necessary facts, under\nthe statute, for admitting the will to probate, and was entitled to weight on the hearing in the circuit\ncourt. An attestation clause in proper from is entitled to due weight in determining whether a will\nwas legally executed, but such a clause is not conclusive. Harris v. Etienne, supra.\nIn our opinion the requirements of the statute have not been complied with, and the judgment of\nthe Appellate Court and the order of the circuit court of Cook County are reversed.\nJudgments reversed.\n11.4.2 Conscious Presence\nIn order to satisfy the conscious presence test, the witness is in the presence of the testator if\nthe testator, through sight, hearing, or general consciousness of events, comprehends that the\nwitness is in the act of signing.\n\nWhitacre v. Crowe, 972 N.E.2d 659 (Ohio Ct. App. 2012)\nCARR, Judge.\nAppellant, Victoria Hobson, appeals the judgment of the Medina County Court of Common Pleas,\nProbate Division. This Court affirms.\nI.\nKay Whitacre had five adult children at the time of her death. Her will was admitted to probate. Her\ndaughter Victoria was named as the sole beneficiary, while her son Michael was named as executor.\nKay\xe2\x80\x99s three remaining children, Shawn, Angie, and Nick, were not mentioned in the will.\nSubsequently, Shawn, Angie, and Nick filed a complaint to contest the will. They later moved for\nsummary judgment. Victoria and Michael responded in opposition. The trial court granted the\nplaintiffs\xe2\x80\x99 motion for summary judgment, concluded that Kay\xe2\x80\x99s will was not executed pursuant to\nthe formalities required in R.C. 2107.03, and revoked an earlier order admitting the will to probate.\nVictoria appealed, raising three interrelated assignments of error for review.\nII.\n483\n\n\x0cASSIGNMENT OF ERROR I\nTHE TRIAL COURT ERRED IN FINDING THAT THE EXECUTION OF THE WILL\nDID NOT MEET THE FORMALITIES REQUIRED UNDER [] R.C. 2107.03.\nASSIGNMENT OF ERROR II\nTHE TRIAL COURT ERRED IN GRANTING PLAINTIFF/APPELLEE\xe2\x80\x99S MOTION FOR\nSUMMARY JUDGMENT FINDING THAT THE WITNESSES WERE NOT IN THE\nCONSCIOUS PRESENCE OF KAY WHITACRE, THE TESTATOR.\nASSIGNMENT OF ERROR III\nTHE TRIAL COURT ERRED IN REVOKING ITS PRIOR ORDER ADMITTING THE\nPROPERLY EXECUTED WILL TO PROBATE.\nVictoria challenges the trial court\xe2\x80\x99s granting of summary judgment in favor of the plaintiffs which\nresulted in the court\xe2\x80\x99s revocation of its prior order admitting Kay\xe2\x80\x99s will to probate. Her arguments\nare not persuasive.\nThis Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio\nSt.3d 102, 105, 671 N.E.2d 241 (1996). This Court applies the same standard as the trial court,\nviewing the facts in the case in the light most favorable to the non-moving party and resolving any\ndoubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12, 467\nN.E.2d 137 (6th Dist. 1983).\nTo prevail on a motion for summary judgment, the party moving for summary judgment must be\nable to point to evidentiary materials that show that there is no genuine issue as to any material fact,\nand that the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d\n280, 293, 662 N.E.2d 264 (1996). Once a moving party satisfies its burden of supporting its motion\nfor summary judgment with sufficient and acceptable evidence pursuant to Civ. R. 56(C), Civ. R.\n56(E) provides that the non-moving party may not rest upon the mere allegations or denials of the\nmoving party\xe2\x80\x99s pleadings. Rather, the non-moving party has a reciprocal burden of responding by\nsetting forth specific facts, demonstrating that a \xe2\x80\x9cgenuine triable issue\xe2\x80\x9d exists to be litigated for trial.\nState ex. Rel. Zimmerman v. Tompkins. 75 Ohio St.3d 447, 449, 663 N.E.2d 639 (1996).\nThe non-moving party\xe2\x80\x99s reciprocal burden does not arise until after the moving party has met its\ninitial evidentiary burden. To do so, the moving party must set forth evidence of the limited types\nenumerated in Civ.R. 56(C), specifically, \xe2\x80\x9cthe pleadings, depositions, answers to interrogatories,\nwritten admissions, affidavits, transcripts of evidence, and written stipulations of fact[.]\xe2\x80\x9d Civ.R.\n56(C) further provides that \xe2\x80\x9c[n]o evidence or stipulation may be considered except as stated in this\nrule.\xe2\x80\x9d\nR.C. 2107.18 provides that \xe2\x80\x9c[t]he probate court shall admit a will to probate if * * * the execution of\nthe will complies with the law in force at the time of the execution of the will in the jurisdiction in\nwhich it was executed, with the law in force in this state at the time of the death of the testator, or\nwith the law in force in the jurisdiction in which the testator was domiciled at the time of the\n484\n\n\x0ctestator\xe2\x80\x99s death.\xe2\x80\x9d\nKay purported to execute her will in Ohio on May 14, 2010. The applicable version of R.C. 2107.03,\nin effect at both the time of the execution of the will and at the time of Kay\xe2\x80\x99s death, states:\nExcept oral wills, every last will and testament shall be in writing, but may be handwritten or\ntypewritten. The will shall be signed at the end by the testator making it or by some other person\nin the testator\xe2\x80\x99s conscious presence and at the testator\xe2\x80\x99s express direction, and be attested and\nsubscribed in the conscious presence of the testator, by two or more competent witnesses, who\nsaw the testator subscribe, or heard the testator acknowledge the testator\xe2\x80\x99s signature.\nFor purposes of this section, \xe2\x80\x9cconscious presence\xe2\x80\x9d means within the range of any of the testator\xe2\x80\x99s\nsenses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other\ndistant communication.\nIn their motion for summary judgment, the plaintiffs challenged the valid execution of Kay\xe2\x80\x99s will on\ntwo grounds, specifically, (1) that Kay did not sign her will in the conscious presence of the\nwitnesses because the witnesses viewed the signing from another room by way of a video monitor,\nand (2) that the witnesses did not attest and subscribe the will in the conscious presence of the\ntestator. In its order granting summary judgment to the plaintiffs, the trial court found that the\nwitnesses \xe2\x80\x9ctechnically\xe2\x80\x9d never saw Kay sign her will because they viewed the event on a monitor, and\nthat the witnesses were not in the conscious presence of Kay when she signed her will. The trial\ncourt concluded that the execution of the will did not meet the formal requirements of R.C. 2107.03\nand it, therefore, revoked its prior order admitting the will to probate. Although the trial court\xe2\x80\x99s\nfindings are inartfully crafted, this Court concludes that the trial court properly granted summary\njudgment in favor of Shawn, Angie, and Nick, and therefore properly revoked its prior order\nadmitting Kay\xe2\x80\x99s will to probate.\nNo party argues that the indecipherable scribble on the will does not constitute Kay\xe2\x80\x99s signature, and\nwe do not address that matter further.\nVictoria argues that the trial court erred because genuine issues of material fact existed regarding\nwhether the two witnesses attested and subscribed the will in the conscious presence of the testator.\nBecause that issue is dispositive of the appeal, we confine our analysis to that issue.\nSubscription is \xe2\x80\x9cthe physical act of affixing a signature for purposes of identification.\xe2\x80\x9d Jackson v.\nEstate of Henderson, 8th Dist. No. 93231, 2010-Ohio-3084, 2010 WL 2636725. Attestation, a separate\nand distinct act from subscription, \xe2\x80\x9cis the act by which the subscribing witnesses hear the testator\nacknowledge his signature or see him sign the document in their presence.\xe2\x80\x9d Id., see also Timberlake v.\nSayre, 4th Dist. No. 09CA3269, 2009-Ohio-6005, 2009 WL 3790495.\nBy the plain language of R.C. 2107.03, the witnesses attesting and subscribing the will must do so\n\xe2\x80\x9cwithin the range of any of the testator\xe2\x80\x99s senses,\xe2\x80\x9d which expressly excludes sights and sounds relayed\nthrough electronic means. The evidence appended to both the motion for summary judgment and\nresponse in opposition clearly establishes that the monitor involved in this situation worked one way\nin that it only allowed the witnesses to see and hear Kay, while Kay could not see and hear the\nwitnesses via any electronic means. To the extent, then, that any party has argued that the use of the\naudio/video monitor precluded the witnesses from being in Kay\xe2\x80\x99s \xe2\x80\x9cconscious presence,\xe2\x80\x9d such an\n485\n\n\x0cargument is a red herring.\nOhio. Historically, however, other jurisdictions which required witnesses to attest and subscribe the\nwill in the presence of the testator interpreted \xe2\x80\x9cpresence\xe2\x80\x9d to mean \xe2\x80\x9cconscious presence.\xe2\x80\x9d See, e.g., In\nre Estate of Holden, 261 Minn. 527, 113 N.W.2d 87 (1962); In re Demaris\xe2\x80\x99 Estate, 166 Or. 36, 110 P.2d\n571, 581 (1941); Calkins v. Calkins, 216 Ill. 458, 75 N.E. 182, 183-184 (1905); Watson v. Pipes, 32 Miss.\n451 (1856); Nock v. Nock\xe2\x80\x99s Exrs., 51 Va. 106 (1853); Nichols v. Rowan, 422 S.W.2d 21, 24 (Tex. Civ.\nApp. 1967). The test has been referred to as a \xe2\x80\x9cmental apprehension test\xe2\x80\x9d and is stated as follows:\n\xe2\x80\x9cWhen a testator is not prevented by physical infirmities from seeing and hearing\nwhat goes on around him, it is the general, if not universal, rule that his will is\nattested in his presence if he understands and is conscious of what the witnesses\nare doing when they write their names, and can, if he is so disposed, readily\nchange his position so that he can see and hear what they do and say. * * * In\nother words, if he has knowledge of their presence, and can, if he is so disposed,\nreadily see them write their names, the will is attested in his presence, even if he\ndoes not see them do it, and could not without some slight physical exertion. It is\nnot necessary that he should actually see the witnesses, for them to be in his\npresence. They are in his presence whenever they are so near him that he is\nconscious of where they are and of what they are doing, through any of his\nsenses, and are where he can readily see them if he is so disposed. The test,\ntherefore, to determine whether the will of a person who has the use of all his\nfaculties is attested in his presence, is to inquire whether he understood what the\nwitnesses were doing when they affixed their names to his will, and could, if he\nhad been so disposed, readily have seen them do it.\xe2\x80\x9d\nDemaris at 582, quoting Healey v. Bartlett, 73 N.H. 110, 59 A. 617, 618 (1904).\nIn In re Estate of Holden, 113 N.W.2d at 92-93, the Supreme Court of Minnesota concluded that\nwitnesses signing the will while standing eight feet away in the doorway to the testator\xe2\x80\x99s room were\nin the testator\xe2\x80\x99s \xe2\x80\x9crange of vision\xe2\x80\x9d and, therefore, within his conscious presence. In Nock, 51 Va. at\n126, the Supreme Court of Appeals of Virginia concluded that the witnesses who attested the will\ndid so in the conscious presence of the testator even though they were in another room, 16\xe2\x80\x9317 feet\naway, and the testator could not from his position see the witnesses\xe2\x80\x99 forearms, writing hands, or the\nwill itself without changing position. The court concluded that the conscious presence test was met,\nhowever, because the testator could have seen the witnesses attesting the will merely by changing his\nposition. Id.\nCalifornia has also construed the presence requirement by applying the \xe2\x80\x9cconscious presence\xe2\x80\x9d test. In\nre Tracy\xe2\x80\x99s Estate, 80 Cal.App.2d 782, 182 P.2d 336, 337 (1947). The Tracy court, citing a long history\nof cases from various states, set out the following elements to establish conscious presence, where\nthe testator cannot actually view the witnesses\xe2\x80\x99 signing: \xe2\x80\x9c(1) the witnesses must sign within the\ntestator\xe2\x80\x99s hearing, (2) the testator must know what is being done, and (3) the signing by the witnesses\nand the testator must constitute one continuous transaction.\xe2\x80\x9d Id. In Tracy, the witnesses signed the\nwill in another room 25 feet away and, although the testator could not see them, she could hear the\nwitnesses\xe2\x80\x99 conversation evidencing their contemporaneous signing. Given the timing of the\nwitnesses\xe2\x80\x99 signatures immediately after the testator\xe2\x80\x99s and the testator\xe2\x80\x99s ability to hear the witnesses\nand understand by their conversation that they were attesting her will, the court concluded that the\n486\n\n\x0cwill was properly executed. Id.\nThe Supreme Court of Mississippi explained the rationale behind the conscious presence test. In re\nEstate of Jefferson, 349 So.2d 1032 (Miss. 1977). The Jefferson court wrote that \xe2\x80\x9cthe purpose of signing\nby the attesting witnesses in the presence of the testator is that the testator will know that the\nwitnesses are attesting the testator\xe2\x80\x99s will and not another document; that the witnesses will know the\nsame; these reasons being to avoid imposition or fraud on either the testator or the witnesses by\nsubstitution of another will in place of that signed by the testator; and that the witnesses will be\nreasonably satisfied that the testator is of sound and disposing mind and capable of making a will.\xe2\x80\x9d\nId. at 1036. In that case, the high court concluded that a witness who telephoned the testator and\ninformed him that he was then signing and attesting the testator\xe2\x80\x99s will was not in the conscious\npresence of the testator.\nMore recently, the Supreme Court of New Hampshire relied on the conscious presence test as\nenunciated in Healey, supra, and concluded that the witnesses had not attested the will in the testator\xe2\x80\x99s\npresence. In re Estate of Fischer, 152 N.H. 669, 886 A.2d 996 (2005). In Fischer, the testatrix was\nbedridden with cancer. After signing her will in her bed in front of the witnesses, the witnesses\nsigned the will on the porch. The court concluded that there was no evidence in the record that the\ntestatrix could have readily seen or heard what the witnesses were doing but for her infirmities or\nthat they were so near the testatrix that she was conscious of their actions when they signed the will.\nId. at 999. Moreover, the high court concluded that the witnesses\xe2\x80\x99 signing in the presence of the\ntestatrix\xe2\x80\x99 attorney was not adequate to meet the statutory requirement. Id. at 1000.\nBased on our review of the considerations long recognized throughout the country, we adopt a\n\xe2\x80\x9cconscious presence\xe2\x80\x9d test in line with historical precedent which requires that the subscribing and\nattesting witnesses be in the testator\xe2\x80\x99s range of vision or that the testator hear and understand that\nthe witnesses are subscribing and attesting the will at the time they are doing so.\nSara White and Joseph Reich were asked to witness the execution of Kay\xe2\x80\x99s will. In this case, both\nMs. White and Mr. Reich testified during their depositions that Kay, who was on another floor of\nthe home when she signed her will, could not see them from either bedroom. In fact, Ms. White\nunderstood that Kay did not want the witnesses in the same room with her because she did not want\nany strangers to see her in her state of illness. Ms. White testified that she had no knowledge about\nwhether Kay could hear the witnesses on the floor below her. Both witnesses testified that they\nsigned the will within mere feet of one another but that Kay did not see the witnesses sign from\nupstairs. Mr. Reich further testified that no one asked him to communicate in any way with Kay that\nday regarding her understanding of the will.\nBased on our review of the evidence submitted by Shawn, Angie, and Nick in support of their\nmotion for summary judgment, this Court concludes that they met their initial burden of presenting\nevidence to demonstrate that there was no genuine issue of material fact and that they were entitled\nto judgment as a matter of law. The plaintiffs presented evidence that the witnesses were not in\nKay\xe2\x80\x99s range of vision when they subscribed and attested the will and further that she could not hear\nwhat they were doing and, therefore, had no understanding that the witnesses were signing the will.\nIn support of her reciprocal burden, Victoria appended her affidavit in which she averred that \xe2\x80\x9cthe\nvoices of the witnesses and sounds they were making moving around in the living room were clearly\naudible and within the sound of my mother\xe2\x80\x99s ears, being only several yards away and directly below\n487\n\n\x0cher in the living room[.]\xe2\x80\x9d She further averred that Michael took the will from Kay downstairs to the\nwitnesses and that \xe2\x80\x9cthey had a discussion that could be heard in my mother\xe2\x80\x99s upstairs bedroom\nwhile they were signing as witnesses [.]\xe2\x80\x9d Victoria also appended the affidavit of Ms. White who\naverred that \xe2\x80\x9c[d]ue to our close proximity, Kay Whitacre could hear me talking with her son and\ndaughter, as well as the other witness, Joseph Reich, and I believe she could hear our movements\nabout the living room, so she was fully aware of our presence[.]\xe2\x80\x9d\nBased on our review of the evidence, we conclude that Victoria did not meet her reciprocal burden\nof responding by setting forth specific facts, demonstrating that a \xe2\x80\x9cgenuine triable issue\xe2\x80\x9d exists to be\nlitigated for trial. Tompkins, 75 Ohio St.3d 447 at 449, 663 N.E.2d 639. Although she presented\nevidence that Kay could hear conversations and movements in the downstairs living room, she\npresented no evidence regarding the substance of any of those conversations or that Kay was aware\nthat the witnesses were subscribing and attesting her will at the time they were doing so.\nAccordingly, the trial court did not err when it found that the will was not executed in compliance\nwith the requirements of R.C. 2107.03, and when it therefore revoked its prior order admitting the\nwill to probate. Victoria\xe2\x80\x99s assignments of error are overruled.\nIII.\nVictoria\xe2\x80\x99s assignments of error are overruled. The judgment of the Medina County Court of\nCommon Pleas, Probate Division, is affirmed.\nBELFANCE, P.J., Dissenting.\nI respectfully dissent from the judgment of the majority, as I would conclude there is a genuine\ndispute of material fact precluding summary judgment.\nR.C. 2107.03 states in part that the will shall \xe2\x80\x9cbe attested and subscribed in the conscious presence\nof the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the\ntestator acknowledge the testator\xe2\x80\x99s signature.\xe2\x80\x9d The statute goes on to define the phrase conscious\npresence as \xe2\x80\x9cwithin the range of any of the testator\xe2\x80\x99s senses, excluding the sense of sight or sound\nthat is sensed by telephonic, electronic, or other distant communication.\xe2\x80\x9d R.C. 2107.03. Because\nthat phrase has been defined by the legislature, I would rely first and primarily on that definition in\ndetermining whether there was a genuine dispute of material fact with respect to whether the will\nwas attested and subscribed in Kay\xe2\x80\x99s conscious presence.\nViewing the evidence in a light most favorable to Victoria, I would conclude that she met her\nreciprocal burden and demonstrated that a genuine dispute of material fact exists with respect to\nwhether the will was attested and subscribed in Kay\xe2\x80\x99s conscious presence. While I do not dispute\nthat Victoria\xe2\x80\x99s affidavit is somewhat ambiguous, this Court is required to resolve that ambiguity in\nfavor of Victoria. See Garner v. Robart, 9th Dist. No. 25427, 2011-Ohio-1519, 2011 WL 1138702.\nVictoria\xe2\x80\x99s affidavit states, inter alia, that \xe2\x80\x9cthe voices of the witnesses and sounds they were making\nmoving around in the living room were clearly audible and within the sound of [her] mother\xe2\x80\x99s ears *\n* *[,]\xe2\x80\x9d that the fan was turned off \xe2\x80\x9cso the sounds of the witnesses on the first floor were clearly\nheard by her,\xe2\x80\x9d and, that, at the time the witnesses were going to sign the will the discussion the\nwitnesses were having \xe2\x80\x9ccould be heard in [Kay\xe2\x80\x99s] bedroom while [the witnesses] were signing * * *.\xe2\x80\x9d\nIn addition, Victoria\xe2\x80\x99s affidavit indicates that the doors to the upstairs rooms where Kay was at were\nkept open and that Kay was \xe2\x80\x9cnot more than 12\xe2\x80\x9315 feet[ ]\xe2\x80\x9d from where the witnesses were located.\n488\n\n\x0cViewing this evidence in a light most favorable to Victoria, it could be said that the witnesses\nattested and subscribed to the will in the conscious presence of Kay, as the witnesses were within\nrange of her hearing. See R.C. 2107.03. Accordingly, I would conclude that the movant was not\nentitled to summary judgment.\n12.5\n\nWitnesses\n\nThe testator must sign the will before the number of competent witness specified in the\nstatute. A witness is competent if he or she is over the age of majority and of sound mind. The\nwitnesses must be disinterested. A disinterested witness is one who does not benefit directly or\nindirectly from the will. A will signed by an interested witness is not invalid as long as there are\nenough disinterested witnesses who sign the will. Consequently, lawyers should always have more\nthan the required number of witnesses sign the will. Consider the following example.\nExample:\nKate lives in a jurisdiction that requires a will to be witnessed by two disinterested witnesses. Kate\nexecuted a will leaving half of her estate to Della and half to Betsy. The will was signed and\nwitnessed by Della, Tony and Wayne.\nExplanation:\nThe will was validly executed because it was signed in the presence of Tony and Wayne who are\nboth disinterested witnesses. Thus, Della gets to take half of the estate even though she witnessed\nthe will. The outcome would have been different if the will had only been signed by Della and\nTony.\n\nA.C.A. \xc2\xa7 28-25-102. Competency, etc., of witnesses\n(a) Any person, eighteen (18) years of age or older, competent to be witness generally in this state\nmay act as attesting witness to a will.\n(b) No will is invalidated because attested by an interested witness, but an interested witness, unless\nthe will is also attested by two (2) qualified disinterested witnesses, shall forfeit so much of the\nprovision therein made for him or her as in the aggregate exceeds in value, as of the date of the\ntestator\'s death, what he or she would have received had the testator died intestate.\n(c) No attesting witness is interested unless the will gives to him or her some beneficial interest by\nway of devise.\n(d) An attesting witness, even though interested, may be compelled to testify with respect to the will.\nWhen evaluating the validity of a will, courts make a two-fold inquiry. They must first\ndetermine whether or not the testator\xe2\x80\x99s will was witnessed by the mandated number of witnesses. In\norder for the witnesses to count, they must be competent. Thus, the second thing the court must\ndecide is whether or not the witnesses were competent to witness and sign the will. In addition to\nevaluating the witnesses\xe2\x80\x99 age and mental competency, the court must decide if the witnesses were\n489\n\n\x0cdisinterested. The court must also decide what to do with a devise that was made to an interested\nwitness. The options are for the court to purge the entire devise or to purge the amount of the\ndevise exceeding what the interested witness would have received under the intestacy system. Once\nthe devise to an interested witness is purged, that person becomes disinterested, so the will is\nvalidated. In order to save the will, a majority of courts will take the devise away from the interested\nwitness to make that person a disinterested witness, so he or she can be deemed competent to sign\nthe will.\n\nScandurro v. Beto, 234 S.W.2d 695 (Tex. Civ. App. 1950)\nLESTER, Chief Justice.\nOn a former date we handed down an opinion in this cause, in which the judgment of the trial court\nwas reversed and rendered. Proponent has filed a motion for rehearing, insisting that the judgment\nof the trial court should in all things be affirmed, and in the alternative, that the cause be reversed\nand remanded to insure a more complete development of the facts in order to prevent a gross\ninjustice. Upon reconsideration we have decided to withdraw our former opinion of date July 3,\n1950, and substitute therefor the following:\nOn July 25, 1949, Mrs. Mary Eugenia Robertson executed her will, which was not wholly written in\nthe hand of the testatrix, and on August 26, 1949, she departed this life, leaving an estate of\nconsiderable value. Under the terms of said will her brother and two sisters were the only\nbeneficiaries. The will was attested by Mrs. Ursula Gandy and Mrs. Billie E. Beto, and none other.\nMrs. Beto, a sister of the deceased, was one of the principal devisees under the terms of said will and\nwas also appointed independent executrix therein. Mrs. Beto filed an application in the County\nCourt of McLennan County to have the will admitted to probate. The children of a deceased sister\nof the testatrix filed a contest, based upon the ground that the will was not attested by two\ncompetent witnesses, as required by law.\nAn order was entered in said court admitting the will to probate as to all of its provisions, without\nrevoking the bequest to Mrs. Beto. An appeal was taken to the District Court where a like order was\nentered; hence this appeal.\nThe contestants contend here that the instrument is void for the lack of the necessary number of\ncompetent attesting witnesses, and if not void, the court below erred in not revoking the bequest to\nMrs. Beto. They cite in support thereof: Articles 8283, 8296 and 8297, Vernon\xe2\x80\x99s Ann.Civ.Stats.; also\nthe following cases: Nixon v. Armstrong, 38 Tex. 296; Fowler v. Stagner, 55 Tex. 393; Brown v. Pridgen, 56\nTex. 124; Kennedy v. Upshaw, 66 Tex 442, 1 S.W. 308; and Gamble v. Butchee, 87 Tex. 643, 30 S.W. 861.\nArticle 8283, Vernon\xe2\x80\x99s Ann.Civ.Stats., provides: \xe2\x80\x98Every last will and testament except where\notherwise provided by law, shall be in writing and signed by the testator or by some other person by\nhis direction and in his presence, and shall, if not wholly in the handwriting of the testator, be\nattested by two or more credible witnesses.\xe2\x80\x99\nNow, the question is: was Mrs. Billie Beto a credible witness at the time she attested said instrument\nas a witness. The statute does not define what constitutes credible witnesses, but this question has\nbeen before the appellate courts of this state several times. In the case of Nixon v. Armstrong, 38 Tex.\n490\n\n\x0c296, 297, which was a proceeding to contest a will and to have set aside an order admitting it to\nprobate, all three of the attesting witnesses were named as beneficiaries therein. One of said\nwitnesses relinquished his interest given to him under its provisions and testified, in order to prove\nsaid will. The court held that a credible witness, as used in the statute, is a competent witness, and\nnone other, upon the theory that a pecuniary interest disqualifies a witness, and said that it has been\nalmost universally held that a devisee or legatee is incompetent as a witness to attest or prove up a\nwill under which he receives a bequest. Speaking of Article 5370 of Paschal\xe2\x80\x99s Digest, which is in\neffect Article 8296 of Vernon\xe2\x80\x99s Ann.Civ.Stats. and which reads as follows: \xe2\x80\x98Should any person be a\nsubscribing witness to a will, and be also a legatee or devisee therein, if the will cannot be otherwise\nestablished, such bequest shall be void, and such witness shall be allowed and compelled to appear\nand give his testimony in like manner as if no such bequest had been made. But, if in such case the\nwitness would have been entitled to a share of the estate of the testator had there been no will, he\nshall be entitled to so much of such share as shall not exceed the value of the bequest to him in the\nwill,\xe2\x80\x99 the court said: \xe2\x80\x98We think the only proper and reasonable construction of said article is that all\nbequests made to attesting witnesses shall be absolutely void, unless there are the required number\nof witnesses attesting and to prove the will, who have received no bequests.\xe2\x80\x99 and further held that\nnone of the attesting witnesses were competent witnesses at the time they attested the same and\ndeclared the bequests to all three to be void. The court further said: \xe2\x80\x98Again, the statute says that if\nthe will cannot be otherwise proven, the bequests to the attesting witnesses shall be void; and if\nvoid, then its nullity must relate back to the time when the pretended bequest was made, and not to\nthe relinquishment by the witness. If that be so, then every bequest to attesting witnesses became\nnull on their signing the will; for without that effect the will could not have been proven, as it had\nno competent attesting witnesses.\xe2\x80\x99\nThe case of Fowler v. Stagner, 55 Tex. 393, in which the opinion was rendered in 1881, is identical\nwith the facts of this case. The will was attested by one Laney and J. T. Powers. Powers was a\nbeneficiary under the terms of said will and named executor therein, and the court, in passing upon\nthe question, said:\n\xe2\x80\x98The statute of wills declares it in effect essential to the validity of a will, that, if it be not wholly in\nthe handwriting of the testator, it shall be attested by two or more credible witnesses, above the age\nof fourteen years, subscribing their names in his or her presence. A credible witness is a competent\nwitness\xe2\x80\x99, and cites Redfield on Wills; Lewis v. Aylott(\xe2\x80\x98s Heirs), 45 Tex. 190; and Nixon v. Armstrong,\nsupra.\nThe court further said:\n\xe2\x80\x98One who is interested as taking under the will is incompetent to testify to establish it. And this is\ntrue notwithstanding any general law removing the disability of witnesses on the ground of interest.\nThe law at the time of the execution of this will, and the law now, provides how, and in what case,\nand with what effect, a will which is attested by a witness who is named a beneficiary therein, may be\nproved by such witness. Such a provision would be useless were it not that competency and\ncredibility in the meaning of the statute are the same thing, and that without this provision such\nwitness could not in any case testify.\n\xe2\x80\x98The tenth section of the statute reads: \xe2\x80\x98If any person shall subscribe his name as a witness to a will\nin which any bequest is given to him, if the will cannot be otherwise proved, the bequest shall be\nvoid, and such witness shall be allowed and compelled to appear and give testimony on the residue\n491\n\n\x0cof the will, in like manner as if no such bequest had been made, etc.\xe2\x80\x99\n\xe2\x80\x98This section did not repeal or qualify the first section of the act. A will is still invalid unless attested\nby two disinterested witnesses who take nothing under it. Nor is the will void because attested by\none to whom a bequest is made. The policy of the statute is to prevent frauds, imposition or deceit,\nby providing that these dispositions of property, usually made in ill health or at the near approach of\ndeath, and under circumstances peculiarly liable to imposition, shall be fairly made in the presence of\nat least two wholly disinterested persons; and also it is its policy to uphold the right of a testator to\nmake such dispositions and prevent their failing because of the incompetency of the witnesses, by\nreason of any bequest left them by the will; and this it effects by declaring such bequest void.\n\xe2\x80\x98Now here the will of Mrs. Larremore cannot be established should the attesting witness Powers\ntake anything under it, because it would lack the necessary legal number of competent witnesses.\nThe execution of it may indeed by proved by the oath of one witness, the witness Laney, who is\nwholly disinterested, but that proof would simply show the will invalid, when it appeared Powers\nwas both witness and legatee under it, unless we hold that by the very fact of Powers subscribing\nthis will, there being but two attesting witnesses, the bequest to him in the will was avoided, and that\nhe was therefore competent. It was not necessary that Powers should be called or compelled to\ntestify, or that he should execute a release, but it was essential that he should take no interest under\nthe will, and that is effected by operation of the law.\n\xe2\x80\x98We believe this the fair construction of the statute. The language of the section quoted, \xe2\x80\x98If the will\ncannot otherwise be proved\xe2\x80\x99 must be understood as meaning if the will cannot otherwise be\nestablished as a valid will; not that proof of its execution by one witness would dispense with proof\nof its attestation by two competent witnesses, or that a will is a well-executed one if attested by one\ndisinterested witness though all the other subscribing witnesses are parties in its maintenance and\nbeneficiaries under it, who cannot be called to testify with respect to its execution, so long as the one\nwitness can be produced, but will continue to claim and hold under it.\xe2\x80\x99\nThe case of Brown v. Pridgen, 56 Tex. 124, also held that the term \xe2\x80\x98credible witnesses\xe2\x80\x99 meant\n\xe2\x80\x98competent witnesses\xe2\x80\x99, and cited the case of Fowler v. Stagner, and further said:\n\xe2\x80\x98This court has uniformly held to that construction * * * Even if that construction admitted of\ndoubt, it has been too long acquiesced in and acted on to be overruled. It has now become a rule of\nproperty, and valuable rights depend upon an adherence to it.\xe2\x80\x99\nThe proponents rely upon Article 8297, Vernon\xe2\x80\x99s Ann.Civ.Stats., which reads: \xe2\x80\x98In the case provided\nfor in the preceding article, such will may be proved by the evidence of the subscribing witnesses,\ncorroborated by the testimony of one or more other disinterested and credible persons, to the effect\nthat the testimony of such subscribing witnesses necessary to sustain the will is substantially true; in\nwhich event the bequest to such subscribing witnesses shall not be void.\xe2\x80\x99\nThis article was enacted into law in 1875 and the opinion in Fowler v. Stagner was written in 1881 and\nin the Brown v. Pridgen case the opinion was written in 1882, some six and seven years after the\nenactment of said article, yet the Supreme Court held that in order to sustain a valid will the same\nshould be attested by at least two competent witnesses, two that received no pecuniary benefit under\nits terms, and held that a will attested by only one competent witness together with another who was\nrendered incompetent by reason of being a devisee or legatee, the bequest to the latter should be\n492\n\n\x0cvoid. In Fowler v. Stagner, supra, the court, some six years after Article 8297 became a law, referring to\nthe will then under consideration, said:\n\xe2\x80\x98The law at the time of the execution of this will, and the law now, provides how, and in what case,\nand with what effect, a will which is attested by a witness who is named a beneficiary therein, may be\nproved by such witness. Such a provision would be useless were it not that competency and\ncredibility in the meaning of the statute are the same thing, and that without this provision such\nwitness could not in any case testify.\xe2\x80\x99\nWe can reasonably assume that the court had in mind Article 8297 as well as all the laws relating to\nthe execution and establishment of wills when such statements were made. See also: Gamble v. Butcheee,\n87 Tex. 643, 30 S.W. 861. The legislature, in the enactment of the above article, did not modify,\namend or repeal Article 8283, which requires that a will not wholly in the hand-writing of the\ntestator shall be attested by two credible witnesses, but only amended Section 10 of the probate laws\nthen existing, which was in effect the same as Article 8296.\nWe are of the opinion that this state is committed to the rule that a credible witness to a will must be\na competent witness, that is, one who receives no pecuniary benefits under its terms. It is true Mrs.\nBeto was not called upon to testify in the proceedings below. The will was proven solely upon the\ntestimony of Mrs. Gandy, the only competent attesting witness. This procedure would have been in\ncompliance with the law had there been another competent attesting witness, and under such\ncircumstances the bequest to Mrs. Beto would not have been void. A will can be proven by one\ncompetent attesting witness, but it takes two competent attesting witnesses to sustain a valid will.\nMrs. Beto being a subscribing witness to the will and a devisee thereunder, therefore, is not a\ncompetent witness unless she relinquishes or the court revokes her pecuniary interest under its\nprovisions. The policy of the law is to uphold a will when it can be done. Under the above cited\nauthorities, this will is not void but to sustain it and prevent it from failing in its entirety for the lack\nof the required number of competent attesting witnesses, Mrs. Beto must become a competent\nwitness, and to make her such a witness it is necessary that she receive no pecuniary benefits under\nits terms.\nIn Brown v. Pridgen, 56 Tex. 124, Fowler v. Stagner, 55 Tex. 393, and Nixon v. Armstrong, 38 Tex. 296, in\nwhich the exact or similar questions were before the court, and which are cited and strongly relied\nupon by the contestants, in each instance the case was reversed and remanded to the lower court.\nAfter reconsideration of the case, we have decided to reverse and remand the case in order to\nprevent any possible injustice. Therefore, the cause is reversed and remanded.\nProblems\n1. Maxine executed a will leaving her entire estate to the Church of the Blessed. The applicable\nstatute required the will to be witnessed by two competent witnesses. The will was witnessed by\nRichard, Maxine\xe2\x80\x99s neighbor, and Curtis, Pastor of the Church of the Blessed. Was the will validly\nexecuted? In a jurisdiction that has adopted A.C.A. \xc2\xa7 28-25-102, what happens to the devise to\nCurtis?\n\n493\n\n\x0c2. David executed a will leaving his farm to Robert; $5.00 to Jeremy; and the rest of his estate to\nMajor. The applicable statute required the will to be witnessed by two competent witnesses. The will\nwas witnessed by Jeremy and Bruce. When the will was probated, Jeremy disclaimed his interest in\nthe estate. Was the will validly executed?\n3. Cynthia executed a will leaving half of her estate to her son, Garrison, and half to her best friend,\nOlivia. The applicable statute required the will to be witnessed by two competent witnesses. The will\nwas witnessed by Garrison and Tiffany. Was the will validly executed? Will Garrison be permitted to\ntake under the will?\n11.6\n\nRevocation\n\nBecause the will does not become effective until the testator\xe2\x80\x99s death, it is a constantly\nevolving document. Thus, the testator may change or revoke the will during his or her lifetime. All\nor part of a testator\xe2\x80\x99s will may be revoked in one of the following ways: (1) by a subsequent writing\nexecuted with testamentary formalities; (2) by a physical act such as destroying, obliterating, or\nburning the will; (3) or by change in family circumstances (divorce or birth of a child). In order for a\nchange or revocation to be effective, the testator must manifest the intent to change or revoke the\nwill. For example, T drinks too much one night and accidentally shreds his will. This could be\nconsidered to be a revocation by physical act; however, the revocation would not be effective\nbecause T lacked the necessary testamentary intent.\n\nM.G.L.A. 190B \xc2\xa7 2-507 Revocation by writing or by act (Mass.)\n(a) A will or any part thereof is revoked:\n(1) by executing a subsequent will that revokes the previous will or part expressly or by\ninconsistency; or\n(2) by performing a revocatory act on the will, if the testator performed the act with the intent and\nfor the purpose of revoking the will or part or if another individual performed the act in the\ntestator\'s conscious presence and by the testator\'s direction. For purposes of this paragraph,\n\xe2\x80\x9crevocatory act on the will\xe2\x80\x9d includes burning, tearing, canceling, obliterating, or destroying the will\nor any part of it.\n(b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent\nwill wholly revokes the previous will by inconsistency if the testator intended the subsequent will to\nreplace rather than supplement the previous will.\n(c) The testator is presumed to have intended a subsequent will to replace rather than supplement a\nprevious will if the subsequent will makes a complete disposition of the testator\'s estate. If this\npresumption arises and is not rebutted, the previous will is revoked; only the subsequent will is\noperative on the testator\'s death.\n(d) The testator is presumed to have intended a subsequent will to supplement rather than replace a\nprevious will if the subsequent will does not make a complete disposition of the testator\'s estate. If\nthis presumption arises and is not rebutted, the subsequent will revokes the previous will only to the\n\n494\n\n\x0cextent the subsequent will is inconsistent with the previous will; each will is fully operative on the\ntestator\'s death to the extent they are not inconsistent.\n11.6.1 By Later Writing\nA subsequent writing can explicitly or implicitly revoke a will. An expressed revocation\noccurs when the later testamentary writing expressly states that intent. For instance, the later\ndocument states, \xe2\x80\x9cI revoke all prior wills.\xe2\x80\x9d Courts treat a later writing that makes a complete\ndisposition of the testator\xe2\x80\x99s estate as presumptively replacing the previous will and revoking it by\ninconsistency. If the subsequent writing does not completely dispose of the testator\xe2\x80\x99s estate, courts\ndo not presume it to revoke the prior will but view it as a codicil. As a result, the property that is not\ndisposed of by the codicil is distributed based on the terms of the previous will.\nExample:\nIn 2000, Carmen executes a will stating, \xe2\x80\x9cI leave my entire estate to my cousin, Paige.\xe2\x80\x9d In 2013,\nCarmen executes a will stating, \xe2\x80\x9cI leave my entire estate to my brother, Simon.\xe2\x80\x9d\nExplanation:\nThe 2013 will revokes the 2000 will by inconsistency. Therefore, Simon takes the entire estate.\nExample:\nIn 2000, Carmen executes a will stating, \xe2\x80\x9cI leave my entire estate to my cousin, Paige.\xe2\x80\x9d In 2013,\nCarmen executes a will stating, \xe2\x80\x9cI leave my house to my brother, Simon.\xe2\x80\x9d\nExplanation:\nCourts will consider the 2000 will to be a codicil because it only deals with a portion of Carmen\xe2\x80\x99s\nestate. Therefore, Simon takes the house and Paige gets the rest of Carmen\xe2\x80\x99s estate.\nProblems\n1. In 2012, Ellen executes a will stating, \xe2\x80\x9cI leave all of my property to James.\xe2\x80\x9d In 2013, Ellen\nexecutes a will stating, \xe2\x80\x9cI leave my car to Dana and my boat to Maggie.\xe2\x80\x9d In 2014, Ellen and Dana\nhave a disagreement. As a result, Ellen burns the 2013 will with the intent of revoking it. In 2015,\nEllen dies. How will her estate be distributed? In re Griffis\xe2\x80\x99 Estate, 330 So.2d 797 (Fla. 1976).\n2. In 2009, Dewey executes a will stating, \xe2\x80\x9cI leave my entire estate to Donald and Daisy.\xe2\x80\x9d In 2011,\nDewey executes a will stating, \xe2\x80\x9cI leave my house to Alice.\xe2\x80\x9d In 2013, Dewey shreds the 2009 will with\nthe intent of revoking it. In 2015, Dewey dies. How will his estate be distributed? In re Schild\xe2\x80\x99s Will,\n72 Misc. 2d 225 (N.Y. Sur. 1972).\n\n495\n\n\x0c11.6.2 By Physical Act\nThe Wills Act allows testators to revoke their wills by physical act. In order to have the\nrevocation recognized, the testator must comply with the statutory requirements. In some cases,\ncourts will presume revocation with the intent to revoke if the testator destroys the will in a state\nthat allows revocation of a will by physical act. The court assumes that the testator destroyed the will\nif it was last seen in his or her possession and it is not found after he or she dies. The problem with\nthis presumption of destruction is that the person who usually searches for the will expects to take\nunder the will. If that expectation does not come to fruition, the person may be motivated to claim\nthat the will could not be found. This presumption is rebuttable.\n11.6.2.1 Attempted Destruction\n\nThompson v. Royall, 175 S.E. 748 (Va. 1934)\nHUDGINS, J., delivered the opinion of the court.\nThe only question presented by this record, is whether the will of Mrs. M. Lou Bowen Kroll had\nbeen revoked shortly before her death.\nThe uncontroverted facts are as follows: On the 4th day of September, 1932, Mrs. Kroll signed a\nwill, typewritten on five sheets of legal cap paper; the signature appeared on the last page duly\nattested by three subscribing witnesses. H. P. Brittain, the executor named in the will, was given\npossession of the instrument for safe-keeping. A codicil typed on the top third of one sheet of paper\ndated September 15, 1932, was signed by the testatrix in the presence of two subscribing witnesses.\nPossession of this instrument was given to Judge S. M. B. Coulling, the attorney who prepared both\ndocuments.\nOn September 19, 1932, at the request of Mrs. Kroll, Judge Coulling, and Mr. Brittain took the will\nand the codicil to her home where she told her attorney, in the presence of Mr. Brittain and another,\nto destroy both. But instead of destroying the papers, at the suggestion of Judge Coulling, she\ndecided to retain them as memoranda, to be used as such in the event she decided to execute a new\nwill. Upon the back of the manuscript cover, which was fastened to the five sheets by metal clasps,\nin the handwriting of Judge Coulling, signed by Mrs. Kroll, there is the following notation: \xe2\x80\x98This will\nnull and void and to be only held by H. P. Brittain, instead of being destroyed, as a memorandum\nfor another will if I desire to make same. This 19 Sept 1932 \xe2\x80\x98M. LOU BOWEN KROLL.\xe2\x80\x98\nThe same notation was made upon the back of the sheet on which the codicil was written, except\nthat the name, S. M. B. Coulling, was substituted for H. P. Brittain; this was likewise signed by Mrs.\nKroll.\nMrs. Kroll died October 2, 1932, leaving numerous nephews and nieces, some of whom were not\nmentioned in her will, and an estate valued at approximately $200,000. On motion of some of the\nbeneficiaries, the will and codicil were offered for probate. All the interested parties including the\nheirs at law were convened, and on the issue, devisavit vel non, the jury found that the instruments\ndated September 4th and 15, 1932, were the last will and testament of Mrs. M. Lou Bowen Kroll.\nFrom an order sustaining the verdict and probating the will this writ of error was allowed.\n496\n\n\x0cFor more than one hundred years, the means by which a duly executed will may be revoked, have\nbeen prescribed by statute. These requirements are found in section 5233 of the 1919 Code, the\npertinent parts of which read thus: \xe2\x80\x98No will or codicil, or any part thereof, shall be revoked, unless *\n* * by a subsequent will or codicil, or by some writing declaring an intention to revoke the same, and\nexecuted in the manner in which a will is required to be executed, or by the testator, or some person\nin his presence and by his direction, cutting, tearing, burning, obliterating, canceling, or destroying\nthe same, or the signature thereto, with the intent to revoke.\xe2\x80\x98\nThe notations, dated September 19, 1932, are not wholly in the handwriting of the testatrix, nor are\nher signatures thereto attached attested by subscribing witnesses; hence under the statute they are\nineffectual as \xe2\x80\x98some writing declaring an intention to revoke.\xe2\x80\x98 The faces of the two instruments bear\nno physical evidence of any cutting, tearing, burning, obliterating, canceling, or destroying. The only\ncontention made by appellants is, that the notation written in the presence, and with the approval, of\nMrs. Kroll, on the back of the manuscript cover in the one instance, and on the back of the sheet\ncontaining the codicil in the other, constitute \xe2\x80\x98canceling\xe2\x80\x98 within the meaning of the statute.\nBoth parties concede that to effect revocation of a duly executed will, in any of the methods\nprescribed by statute, two things are necessary: (1) The doing of one of the acts specified, (2)\naccompanied by the intent to revoke \xe2\x80\x94 the animo revocandi. Proof of either, without proof of the\nother, is insufficient. Malone v. Hobbs, 1 Rob. (40 Va.) 346, 39 Am. Dec. 263:2 Minor Ins. 925.\nThe proof established the intention to revoke. The entire controversy is confined to the acts used in\ncarrying out that purpose. The testatrix adopted the suggestion of her attorney to revoke her will by\nwritten memoranda, admittedly ineffectual as revocations by subsequent writings, but appellants\ncontend the memoranda, in the handwriting of another, and testatrix\xe2\x80\x99s signatures, are sufficient to\neffect revocation by cancellation. To support this contention appellants cite a number of authorities\nwhich hold that the modern definition of cancellation includes, \xe2\x80\x98any act which would destroy,\nrevoke, recall, do away with, overrule, render null and void, the instrument.\xe2\x80\x99\nMost of the authorities cited, that approve the above, or a similar meaning of the word, were dealing\nwith the cancellation of simple contracts, or other instruments that require little or no formality in\nexecution. However there is one line of cases which apply this extended meaning of \xe2\x80\x98canceling\xe2\x80\x99 to\nthe revocation of wills. The leading case so holding is Warner v. Warner\xe2\x80\x99s Estate, 37 Vt. 356. In this\ncase proof of the intent and the act were a notation on the same page with, and below the signature\nof the testator, reading: \xe2\x80\x98This will is hereby cancelled and annulled. In full this the 15th day of March\nin the year 1859,\xe2\x80\x98 and written lengthwise on the back of the fourth page of the foolscap paper, upon\nwhich no part of the written will appeared, were these words, \xe2\x80\x98Cancelled and is null and void.\n(Signed) I. Warner.\xe2\x80\x99 It was held this was sufficient to revoke the will under a statute similar to the\none here under consideration.\nIn Evans\xe2\x80\x99 Appeal, 58 Pa.St. 238, the Pennsylvania court approved the reasoning of the Vermont court\nin Warner v. Warner\xe2\x80\x99s Estate, supra, but the force of the opinion is weakened when the facts are\nconsidered. It seems that there were lines drawn through two of the three signatures of the testator\nappearing in the Evans will, and the paper on which material parts of the will were written was torn\nin four places. It therefore appeared on the face of the instrument, when offered for probate, that\nthere was a sufficient defacement to bring it within the meaning of both obliteration and\ncancellation.\n497\n\n\x0cThe construction of the statute in Warner v. Warner\xe2\x80\x99s Estate, supra, has been criticized by eminent text\nwriters on wills, and the courts in the majority of the states in construing similar statutes have\nrefused to follow the reasoning in that case. (citations omitted).\nThe above, and other authorities that might be cited, hold that revocation of a will by cancellation\nwithin the meaning of the statute, contemplates marks or lines across the written parts of the\ninstrument, or a physical defacement, or some mutilation of the writing itself, with the intent to\nrevoke. If written words are used for the purpose, they must be so placed as to physically affect the\nwritten portion of the will, not merely on blank parts of the paper on which the will is written. If the\nwriting intended to be the act of cancelling, does not mutilate, or erase, or deface, or otherwise\nphysically come in contact with any part of written words of the will, it cannot be given any greater\nweight than a similar writing on a separate sheet of paper, which identifies the will referred to, just as\ndefinitely, as does the writing on the back. If a will may be revoked by writing on the back, separable\nfrom the will, it may be done by a writing not on the will. This the statute forbids.\nThe attempted revocation is ineffectual, because testatrix intended to revoke her will by subsequent\nwritings not executed as required by statute, and because it does not in any wise physically obliterate,\nmutilate, deface, or cancel any written parts of the will.\nFor the reasons stated, the judgment of the trial court is affirmed.\nAffirmed.\n11.6.2.2 Presumption of Destruction\n\nEdmonds v. Edmonds, 772 S.E.2d 898 (Va. 2015)\nOpinion by Chief Justice DONALD W. LEMONS.\nIn this appeal, we consider whether the trial court erred when it ordered a photocopy of a will to be\nprobated. We must determine whether the trial court applied the correct legal standard in reaching\nits decision, and whether the evidence was sufficient to support the trial court\xe2\x80\x99s determination.\nI. Facts and Proceedings\nJames A. Edmonds, Jr. (\xe2\x80\x9cEdmonds\xe2\x80\x9d) died on April 30, 2013. Edmonds was survived by his wife,\nElizabeth Cashman Edmonds (\xe2\x80\x9cElizabeth\xe2\x80\x9d), his daughter from that marriage, Kelly Elizabeth\nEdmonds (\xe2\x80\x9cKelly\xe2\x80\x9d), and a son from a previous marriage, James Christopher Edmonds\n(\xe2\x80\x9cChristopher\xe2\x80\x9d).\nIt is undisputed that on November 8, 2002, Edmonds executed a will (\xe2\x80\x9c2002 Will\xe2\x80\x9d) which left all of\nhis personal property to his wife, Elizabeth, and the remainder of his property to a revocable living\ntrust (\xe2\x80\x9cTrust\xe2\x80\x9d). The 2002 Will stated that in the event Elizabeth pre-deceased Edmonds all of\nEdmonds\xe2\x80\x99 personal property would go to his daughter Kelly. The 2002 Will intentionally omitted\nChristopher as a beneficiary. The documents creating the Trust were also executed on November 8,\n498\n\n\x0c2002. Elizabeth and Kelly are the beneficiaries of the Trust. The Trust documents state that\nChristopher was intentionally omitted as a beneficiary.\nAt the same time Edmonds executed his 2002 Will and Trust documents, Elizabeth also executed\nher will and trust documents. Her estate planning documents were a mirror image of Edmonds\xe2\x80\x99\ndocuments, leaving all of her estate to Edmonds, and if Edmonds predeceased her, leaving\neverything to Kelly.\nAfter Edmonds died, his original 2002 Will could not be located. However, photocopies of the 2002\nWill and Trust documents were found in a green binder in Edmonds\xe2\x80\x99 filing cabinet in his office.\nThereafter, Elizabeth filed a \xe2\x80\x9cComplaint to Establish Copies of the Will and Trust Where Originals\nCannot Be Located,\xe2\x80\x9d in the Circuit Court of Arlington County (\xe2\x80\x9ctrial court\xe2\x80\x9d) and named Kelly and\nChristopher as defendants. The complaint acknowledged that Kelly and Christopher would both be\nheirs at law if Edmonds was deemed to have died intestate, but asked the trial court to establish and\ndirect probate of the photocopy of the 2002 Will and the Trust.\nChristopher filed an answer, counterclaim, and cross-claim. He sought to establish that Edmonds\ndied intestate, and that Christopher was an heir at law. Christopher asserted that because the 2002\nWill was in Edmonds\xe2\x80\x99 possession when he died, and Elizabeth had been unable to locate it, the\npresumption that Edmonds had destroyed it with the intent to revoke it applied.\nKelly filed answers to the complaint and the cross-claim. She admitted that she would be an heir at\nlaw if Edmonds died intestate, but she asked the trial court to find that the 2002 Will was valid and\nto probate the photocopy. She asserted there was no evidence that Edmonds destroyed the 2002\nWill with the intent to revoke it.\nA two-day trial was held on March 25\xe2\x80\x9326, 2014. Elizabeth presented numerous witnesses who\ndescribed conversations they had with Edmonds regarding his testamentary intentions. Patrick J.\nVaughn, an attorney who prepared wills and trust documents for Edmonds and Elizabeth in 1973,\nand again in 1989, testified that in the 1973 will, Edmonds left his estate to Elizabeth, and expressly\nexcluded any child of his born from a previous marriage. In the 1989 will, Edmonds again left\neverything to Elizabeth. In the event Elizabeth predeceased him, he left everything to his daughter,\nKelly.\nMarc E. Bettius (\xe2\x80\x9cBettius\xe2\x80\x9d) testified that he had been friends with Edmonds and Elizabeth for more\nthan 30 years. Bettius stated that in the fall of 2012, he had gone by Edmonds\xe2\x80\x99 auto business to have\nhis car serviced, and he and Edmonds had a conversation. During that conversation, Bettius asked\nEdmonds what plans he had made for the future of his business, and Edmonds indicated that\neverything was taken care of in his estate and it would all go to Elizabeth. Edmonds also stated that\nhe made the appropriate decisions to maximize estate tax benefits. Bettius knew Edmonds had a son\nfrom a previous marriage and asked Edmonds if he\xe2\x80\x99d ever thought about having a relationship with\nhis son. Edmonds responded in the negative and said that, \xe2\x80\x9cthe boy had never been a part of his life\nand never would be a part of his life.\xe2\x80\x9d\nPaul C. Kincheloe (\xe2\x80\x9cKincheloe\xe2\x80\x9d), an attorney who had been friends with Edmonds since the 1970s,\ntestified that he was not professionally engaged to do any estate planning for Edmonds, but they did\ndiscuss the subject on several occasions. At one point, Edmonds asked Kincheloe to serve as\nsubstitute trustee, and Kincheloe agreed. Edmonds told Kincheloe he was leaving everything to his\n499\n\n\x0cwife and daughter, and nothing to his son.\nJohn A. Bell, Jr. (\xe2\x80\x9cBell\xe2\x80\x9d) testified that he had been friends with Edmonds and Elizabeth since the\n1980s. The last time he was with Edmonds was during the first week of March 2013, when\nEdmonds invited him to Florida for a four-day golf tournament. Bell testified that he brought up the\nsubject of estate planning because he was deciding what do with his own estate. During that\nconversation, Edmonds said, \xe2\x80\x9cAs soon as I go, everything goes to Liz. And as soon as she goes,\neverything goes to Kelly.\xe2\x80\x9d When asked if Edmonds ever said anything negative about Christopher,\nBell responded that Edmonds had never mentioned his son. Bell testified that about three or four\nyears before this March 2013 conversation, he and Edmonds had another discussion about their\nestates. During that discussion, Edmonds said he was trying to set up his estate so that Kelly would\nreceive her inheritance in increments. Bell testified that Edmonds was concerned that Kelly would\nspend the money all at once. Edmonds was also concerned that he had paid for Kelly to have a great\neducation, and he was not sure she was using it wisely.\nRaymond Knight, one of Edmonds\xe2\x80\x99 employees in his auto business, testified that approximately six\nyears before Edmonds died, they had a conversation about the future of the business if anything\nhappened to Edmonds. Edmonds told him that \xe2\x80\x9cLiz would carry on the business.\xe2\x80\x9d\nDonald Manning (\xe2\x80\x9cManning\xe2\x80\x9d) was the attorney who prepared the 2002 Will. Manning testified that\nwhen he met with Edmonds and Elizabeth to prepare their wills in 2002, Edmonds made it clear\nthat he did not want Christopher to be a beneficiary. Manning testified that after Edmonds and\nElizabeth executed their wills and trust documents, he made photocopies of the originals. Several\nweeks later, Edmonds picked up both the originals and the photocopies. Manning testified that the\nphotocopies were placed in a green binder before Edmonds picked them up. Manning also testified\nthat Edmonds never completed several of the items related to the estate plan, such as funding a\nfamily trust or retitling stock, but Manning agreed that those items did not affect the 2002 Will.\nMeta Jane Mortensen (\xe2\x80\x9cMortensen\xe2\x80\x9d), who prepared Edmonds\xe2\x80\x99 taxes each year, testified that she had\na discussion with Edmonds wherein she told him she was concerned about the tax implications of\nhis estate plan and wanted to see the documents governing it. Edmonds finally brought her his\nestate documents in 2011. The documents Edmonds showed her in 2011 were the 2002 Will and\nTrust.\nDina Knight, the bookkeeper for Edmonds\xe2\x80\x99 auto business, testified that although Edmonds did not\ndiscuss his estate plan in specific terms with her, he told her that one day the business would belong\nto his wife and daughter. Knight also testified that Edmonds kept all of his important papers in the\nfiling cabinet in his office. After Edmonds died, Knight looked through the cabinet for important\npapers Elizabeth would need, and that is where she found life insurance papers, lease agreements,\nand the green binder with the copies of the 2002 Will and Trust documents. Knight did not know\nthe documents in the green binder were photocopies when she found them. Upon learning that\nthose documents were not originals, Knight assisted Elizabeth in looking through all the cabinets\nand drawers in the auto business, but they never found the original 2002 Will.\nElizabeth testified that she and Edmonds were married in 1972. She explained that Edmonds had\nthree serious surgeries during their marriage, one in 1992, another in 1998, and the last one in 2003.\nPrior to each of these surgeries, he always told her that all the important papers she would need,\nincluding his will, were in the top drawer of his filing cabinet in his office. Elizabeth testified that\n500\n\n\x0cwhen they prepared their wills in 2002, Edmonds was clear that he wanted to exclude Christopher as\na beneficiary. Elizabeth also testified that in late March or early April of 2013, while they were still in\nFlorida, Edmonds stated that when they got back to Virginia they should make an appointment with\ntheir estate attorney to starting putting into place several of the estate planning items, including\nfunding the family trust and retitling some of their stock.\nChristopher testified that he had never met or spoken to Edmonds, although he did make two\nattempts to contact him.\nAfter hearing the evidence and considering the argument of counsel, the trial court stated that \xe2\x80\x9cin\nmy mind it\xe2\x80\x99s a very close ... case.\xe2\x80\x9d The trial court held that the execution and content of the 2002\nWill was not contested. The trial court also held that the evidence proved that the documents were\ntraceable to Edmond\xe2\x80\x99s possession but were not found at his death. The trial court stated that it had\nto determine whether the evidence was sufficient to overcome the presumption that the testator had\ndestroyed the will with the intention to revoke it.\nAfter a thorough review of the evidence in the case, the trial court held that the plaintiff had proven\n\xe2\x80\x9cby clear and convincing evidence\xe2\x80\x9d that the 2002 Will was not revoked. The trial court stated that it\nwas relying on this Court\xe2\x80\x99s opinion in Bowery v. Webber, 181 Va. 34, 23 S.E.2d 766 (1943), which it\nfound to be controlling. The trial court noted that here, as in Bowery, there was compelling evidence\nof the decedent\xe2\x80\x99s deep affection for the proponent of the will, and that the decedent had made a\nnumber of statements to various disinterested parties related to the disposition of his estate. The trial\ncourt further noted that it found those witnesses to be \xe2\x80\x9chighly credible.\xe2\x80\x9d Finally, the trial court held\nthat there was no evidence of any credible reason or cause for the decedent to have made any\nchange in the testamentary disposition of his estate. The trial court ordered that the photocopy of\nEdmonds 2002 Will be probated.\nThe trial court entered a final order on May 9, 2014, and Christopher appealed to this Court. We\ngranted Christopher\xe2\x80\x99s appeal on the following assignments of error:\n1. The trial court erred when it ordered a photocopy of the will to be probated, because it\napplied the wrong legal standard in allowing a decedent\xe2\x80\x99s general statements of intent and\naffection to overcome the presumption of revocation of the missing original will, thus failing to\nfollow this Court\xe2\x80\x99s numerous decisions requiring clear and convincing evidence of some other\ncause for the original will\xe2\x80\x99s disappearance.\n2. The trial court erred when it ordered a photocopy of the will to be probated, because it\nallowed less than clear and convincing evidence to overcome the presumption of revocation,\ncontrary to this Court\xe2\x80\x99s decisions.\nII. Analysis\nA. Standard of Review\nWhether the trial court applied the correct legal standard in this case is a question of law. We review\nquestions of law de novo. See Lamar Co. v. City of Richmond, 287 Va. 322, 325, 757 S.E.2d 15, 16\n(2014).The issue whether Elizabeth, the proponent of the will, proved by clear and convincing\nevidence that Edmonds did not revoke his will is a question of sufficiency of the evidence. A\n501\n\n\x0cjudgment should be reversed for insufficient evidence only if it is \xe2\x80\x9cplainly wrong or without\nevidence to support it.\xe2\x80\x9d Atrium Unit Owners Ass\xe2\x80\x99n v. King, 266 Va. 288, 293, 585 S.E.2d 545, 548\n(2003) (internal quotation marks omitted).\nB. Virginia\xe2\x80\x99s Legal Standard for Missing Wills\nOver the past century, this Court has decided numerous cases involving missing wills, and the law\ncontrolling this case is well-established. The most recent case this Court decided involving this issue\nwas Brown v. Hardin, 225 Va. 624, 304 S.E.2d 291 (1983), where we stated:\nWhere an executed will in the testator\xe2\x80\x99s custody cannot be found after his death\nthere is a presumption that it was destroyed by the testator animo revocandi. This\npresumption, however, is only prima facie and may be rebutted, but the burden is\nupon those who seek to establish such an instrument to assign and prove some\nother cause for its disappearance, by clear and convincing evidence, leading to\nthe conclusion that the will was not revoked.\nId. at 626, 304 S.E.2d at 292 (citations omitted).\nNeither party in this appeal disagrees that, where an executed will in the testator\xe2\x80\x99s custody cannot be\nfound after his death, there is a presumption that it was destroyed by the testator with the intent of\nrevoking it. In this case, the 2002 Will was traced to Edmonds\xe2\x80\x99 custody, but could not be found at\nhis death. Accordingly, the trial court properly applied the presumption in this case that the 2002\nWill was destroyed by Edmonds.\nThe parties also do not appear to disagree that the presumption of revocation can be overcome by\nthe proponent of the will upon presentation of clear and convincing evidence, leading to the\nconclusion that the will was not revoked by the testator. Instead, the dispute in this case involves\nwhat the proponent of the will must prove to meet her burden of proof, and whether she met her\nburden of proof in this particular case.\nChristopher argues that to meet her burden of proof, Elizabeth was required to prove \xe2\x80\x9csome other\ncause\xe2\x80\x9d for the disappearance of the will, and that evidence of general intent and affection alone is\nnot clear and convincing evidence, sufficient to overcome the presumption of revocation.\nChristopher contends that the only case that supports Elizabeth\xe2\x80\x99s position, Bowery, is an \xe2\x80\x9coutlier\xe2\x80\x9d\nand should not have been relied on by the trial court.\nA review of our decisions over the past century on the issue of missing wills is informative. In 1913,\nwe provided a synthesis of the operation of the lost will presumption and the evidence sufficient to\nrebut it, in deciding the case of Jackson v. Hewlett, 114 Va. 573, 77 S.E. 518 (1913). In Jackson, the\nevidence proved that the decedent had made a will in which he devised the bulk of his estate to his\nillegitimate daughter, and left only a few minor devises to others, including his legitimate daughter.\nId. at 575, 77 S.E. at 519. The will was kept in an unlocked drawer, but after decedent\xe2\x80\x99s death the\nwill could not be located. Id. at 576, 77 S.E. at 519. The proponent of the will introduced numerous\ndeclarations by the testator regarding his intentions to leave the bulk of his estate to her, and not to\nhis other relatives. Id. at 576\xe2\x80\x9377, 77 S.E. at 519.\nWe explained that these declarations were not introduced for the purpose of proving the will, its due\n502\n\n\x0cexecution, or its contents. Rather,\n[t]hey were introduced as evidence showing a strong and unvarying adherence by\nthe testator to his purposes with respect to the disposition of his estate, which\nhad obtained for years prior to his death, both as to the beneficiaries thereunder\nand as to those omitted therefrom; and for the purpose of rebutting the\npresumption that this testator deliberately destroyed, with intent to revoke, a will\nhe had so carefully prepared, and to which he had so firmly adhered.\nId. at 578, 77 S.E. at 520.\nWe held that, in a case like Jackson, the presumption could only be overcome by this type of\nevidence, since \xe2\x80\x9c[i]t is impossible for the beneficiaries under the will to say what became of it; they\ncan only assert that, whatever may have happened to it, the testator did not revoke it.\xe2\x80\x9d Id. at 580, 77\nS.E. at 521. We concluded that:\nIt must be generally the case, in such a status, that the best evidence, if not the\nonly evidence, that can be adduced to rebut the presumption of revocation is\nthat the testator\xe2\x80\x99s mind for many years contemplated a certain disposition of his\nproperty; that when he disposed of that property by will his mental attitude was\nprecisely the same that it had been during the previous years, and that after he\nmade such disposition his mind remained in the same state practically until his\ndeath, supplemented by the consistency of his mental attitude towards his\nvarious relatives.\nId. at 581, 77 S.E. at 521. Our decision in Jackson recognizes that it may very well be impossible for\nthe proponent of a missing will to explain what happened to the will, and therefore the statements\nof the testator regarding his testamentary intentions may be the best evidence to rebut the\npresumption of revocation.\nThe next case we decided involving a missing will was Bowery, handed down in 1943\xe2\x80\x94the decision\nthat appellant contends is an \xe2\x80\x9coutlier,\xe2\x80\x9d but which in fact gave another concrete illustration of the\nnature of the evidence required to rebut the presumption of revocation for a lost will. In Bowery, the\ndecedent had prepared a will which left her estate to her step-granddaughter, whom she had raised\nas her daughter, but excluded other relatives. 181 Va. at 35, 23 S.E.2d at 766. At the time of the\ntestator\xe2\x80\x99s death, the will could not be found, and the proponent of the will filed a bill to establish the\nwill, alleging that the will had become lost or misplaced, but that it had not been revoked. Id. The\nproponent of the will put on evidence that the decedent repeatedly stated to her intimate associates\nthat she desired and intended to leave all of her property to her adopted daughter. Id. at 37, 23\nS.E.2d at 767. In contrast, there was no evidence of any such affection or intention toward her other\nrelatives. Id. There was also no evidence of any incidents occurring which would have induced the\ndecedent to revoke or change her will. Id. We held that this evidence was sufficient to support the\nconclusion that the testator did not destroy her will with the intent to revoke it. Id. at 39, 23 S.E.2d\nat 768.\nThree years after Bowery, we decided Tate v. Wren, 185 Va. 773, 40 S.E.2d 188 (1946), holding that the\nevidence presented in that case was not sufficient to overcome the presumption of revocation. We\nexplained that, unlike the record before the trial court in Bowery, there was no evidence in Tate of\n503\n\n\x0cdeclarations by the testator that his 1933 will was still in effect. Id. at 785\xe2\x80\x9386, 40 S.E.2d at 194. To\nthe contrary, there was evidence that the testator had made numerous statements that he intended to\nchange his 1933 will, and that he had actually prepared a new holographic will. Id. at 786, 40 S.E.2d\nat 194. It is important to note, however, that in distinguishing the facts in Tate from the facts in\nBowery, we never indicated that Bowery was an \xe2\x80\x9coutlier\xe2\x80\x9d or no longer correct.\nLater cases have confirmed the continued application of Jackson and Bowery in lost will cases. For\nexample, in Sutherland v. Sutherland, 192 Va. 764, 66 S.E.2d 537 (1951), we referenced our decisions in\nBowery and Jackson, and stated that, in our opinion, the facts in those two cases \xe2\x80\x9cwere clear and\nconvincing.\xe2\x80\x9d Id. at 774, 66 S.E.2d at 543. We determined that the facts in Sutherland did not\n\xe2\x80\x9cmeasure up\xe2\x80\x9d to the facts present in Bowery and Jackson, and therefore we held that the proponent of\nthe missing will had failed to meet his burden of proof to overcome the presumption of revocation.\nId. at 774\xe2\x80\x9375, 66 S.E.2d at 543\xe2\x80\x9344. Our opinion in Sutherland makes clear that we viewed Jackson and\nBowery to be correct, and to be examples of factual scenarios where the proponent of the missing will\nhad met the necessary burden of proof to overcome the presumption of revocation.\nWhere the will-proponent\xe2\x80\x99s proof fails to clearly and convincingly rebut the presumption of\nrevocation, the burden is not met and the will cannot be probated. In Harris v. Harris, 216 Va. 716,\n222 S.E.2d 543 (1976), for example, the proponents of the missing will argued that the will was not\nactually in the decedent\xe2\x80\x99s possession at the time of his death, and for that reason the presumption of\nrevocation should not apply. Id. at 719, 222 S.E.2d at 545. However, we disagreed and held that the\nevidence proved that the will remained in the decedent\xe2\x80\x99s house, and therefore the presumption of\nrevocation applied. Id. at 719\xe2\x80\x9320, 222 S.E.2d at 545. Further, we determined that the proponents\nhad not met their burden of overcoming the presumption, because the only evidence presented was\nthat other relatives were frequently in the house and could have had access to the will. Id. at 720, 222\nS.E.2d at 546. We held that this evidence left the competing inferences \xe2\x80\x9cequally probable,\xe2\x80\x9d and was\nnot enough to constitute clear and convincing evidence that the will was not revoked by the testator.\nId.\nThe most recent decision by this Court on the issue of a missing will was the Brown case. In Brown,\nthere was no dispute that the decedent had made a will in which he left the majority of his estate to a\nfamily friend instead of his sister. There was evidence presented that the decedent had told\nnumerous witnesses that he intended to leave everything to the friend, and that he was not leaving\nanything to his sister because she was already well off and did not need the money. 225 Va. at 63637, 304 S.E.2d at 298. We emphasized that:\nThe declarations of a testator, after he has made his will, as to its continued\nexistence, its contents, or its revocation, where the will cannot be found after his\ndeath, [are] recognized under certain circumstances as entitled to great weight.\nId. at 636, 304 S.E.2d at 298 (quoting Shacklett v. Roller, 97 Va. 639, 644, 34 S.E. 492, 494 (1899)).\nEvidence was also presented that the sister had access to the decedent\xe2\x80\x99s personal papers within 36\nhours of his death, which might have explained the disappearance of the will. Id. The Court stated\nthat to overcome the presumption that the will was destroyed by the testator with the intention of\nrevoking it,\nthe burden was on [the proponent of the will] to prove by clear and convincing\nevidence that the will was not destroyed by [the testator] but was destroyed or\n504\n\n\x0csecreted by some other person with intent to prevent its probate or recordation,\nor was lost or misplaced; that it was not incumbent upon [the proponent] to prove that the\n[will] was destroyed or suppressed by any certain person nor specifically what became of said\nwill; and that [the proponent] only had to prove by clear and convincing evidence\nthat [the testator] did not destroy the will with the intention of revoking it.\nId. at 637, 304 S.E.2d at 299 (emphasis added).\nIt is clear from a review of our extensive case law on this topic that a proponent of a missing will is\nnot required to specifically prove what became of the missing will. The language cited above from\nBrown demonstrates that we rejected the appellant\xe2\x80\x99s interpretation of our cases that a proponent is\nrequired to prove what happened to the will. Instead, the proponent is required to prove, by clear\nand convincing evidence, that the testator did not destroy the will with the intention of revoking it.\nThe evidence presented by a proponent of a missing instrument will take different forms depending\non the facts and context of each individual case. In some cases, the proponent may present evidence\nregarding what could have happened to the will; and in other cases, there may be no evidence to\nexplain why the will is lost or missing. The facts of each case are different, and the evidence in each\ncase will therefore also be different. What remains the same is that each proponent of a missing will\nmust prove, by clear and convincing evidence, that the testator did not destroy the will with the\nintention of revoking it. That is the standard that we have articulated in all our cases over the past\ncentury, and it remains the law of the Commonwealth today.\nIt is clear from the transcript of the trial and the final order that in the present case the trial court\napplied the proper legal standard. The trial court recognized that, because the will was traced to\nEdmonds\xe2\x80\x99 possession but was not located at his death, the presumption of revocation applied. The\ntrial court then stated that the presumption could be overcome by clear and convincing evidence\nthat the will was not revoked by the defendant. Accordingly, with respect to assignment of error\none, we hold that the trial court did not err, and that it applied the proper legal standard.\nC. Overcoming the Presumption of Revocation\nIn assignment of error two, Appellant asserts that the trial court erred because it allowed less than\nclear and convincing evidence to overcome the presumption of revocation. We have defined clear\nand convincing evidence as:\n[t]hat measure or degree of proof which will produce in the mind of the trier of\nfact a firm belief or conviction as to the allegations sought to be established. It is\nintermediate, being more than a mere preponderance, but not to the extent of\nsuch certainty as is required beyond a reasonable doubt as in criminal cases. It\ndoes not mean clear and unequivocal.\nBrown, 225 Va. at 637, 304 S.E.2d at 299 (quoting Walker Agcy. & Aetna Cas. Co. v. Lucas, 215 Va.\n535, 540-41, 211 S.E.2d 88, 92 (1975)).\nThe remaining question is whether the proof in this case was sufficient to produce in the mind of\nthe trier of fact a firm belief or conviction that Edmonds did not destroy the original copy of the\n2002 Will with the intention of revoking it. The trial court found that Elizabeth had proven that fact\n505\n\n\x0cby clear and convincing evidence. Elizabeth is entitled to have this Court review the evidence and all\nreasonable inferences therefrom in the light most favorable to her, the prevailing party at trial. See\nExxon Mobil Corp. v. Minton, 285 Va. 115, 121, 737 S.E.2d 16, 22 (2013).Viewing the evidence in the\nlight most favorable to Elizabeth, the evidence is sufficient to support the trial court\xe2\x80\x99s finding that\nshe had rebutted the presumption that the original 2002 Will was missing because Edmonds had\npurposefully destroyed it with the intention of revoking it, by offering clear and convincing evidence\nto the contrary.\nEdmonds and Elizabeth had been married for more than 40 years and had complementary estate\nplans in place to provide for each other and then to pass their estate to their daughter Kelly after\nthey both died. On numerous occasions, Edmonds stated his intent that his estate be handled in\nsuch a manner, declarations that are both admissible and entitled to great weight. See Brown, 225 Va.\nat 636, 304 S.E.2d at 298; Shacklett, 97 Va. at 644, 34 S.E. at 494.\nChristopher testified that he had never spoken with or met Edmonds. Edmonds stated to his friend\nBettius that he had no interest in having a relationship with Christopher. Edmonds had at least three\nwills, and each time he changed his will, he had a new one prepared. Christopher was never listed as\na beneficiary in any of Edmonds\xe2\x80\x99 wills. During the preparation of his 2002 Will, Edmonds was clear\nthat he did not want Christopher to be a beneficiary. Because Edmonds did not want Christopher to\nbe a beneficiary, he would know that he needed to have a will to exclude Christopher from\ninheriting part of his estate. Therefore, even if he lost confidence in his daughter, there is no\nindication that he would want his property to pass through intestate succession under any\ncircumstances.\nIt is important to note in this instance that a neatly bound photocopy of Edmonds\xe2\x80\x99 2002 Will and\nTrust was found in a drawer in the filing cabinet in Edmonds\xe2\x80\x99 office, exactly where Edmonds had\nstated he kept his important papers. The photocopy was fully executed. However, the original of the\ndocument could not be found. The fully executed photocopy was found where Edmonds stated he\nwould keep his important papers. If he had intended to revoke the 2002 Will by destroying the\noriginal, it would have been logical that he would have removed the photocopy from his file of\nimportant papers.\nEdmonds never indicated to his wife, or anyone else, that he had destroyed the couple\xe2\x80\x99s 2002 estate\nplanning documents. He also made a number of statements in the last two years of his life that\nreflected his intention that, when he died, his estate would be governed by the 2002 Will and Trust.\nIn the fall of 2011, he gave a copy of the 2002 Will and Trust to his long-term tax advisor for her\nreview. In the fall of 2012, he told his close friend, Bettius, that he had no interest in developing a\nrelationship with Christopher, that he had made appropriate decisions to maximize his estate tax\nbenefits, and that after he died all the decisions regarding the management of his business would be\nin Elizabeth\xe2\x80\x99s hands. This is inconsistent with Edmonds having revoked the will, leaving no estate\nplan in place.\nIn March 2013, Edmonds told his close friend Bell that, \xe2\x80\x9cas soon as I go, everything goes to Liz. As\nsoon as she goes, everything goes to Kelly.\xe2\x80\x9d In late March or early April, just weeks before his death,\nEdmonds told Elizabeth that they should meet with their attorney when they returned to Arlington\nfrom Florida to begin funding their trust and taking the other steps their attorney had recommended\nas part of the 2002 estate plan.\n506\n\n\x0cAs in Jackson and Bowery, it is demonstrated on the present record with clear and convincing\nevidentiary support that in all of his statements Edmonds confirmed the intention that his wife and\ndaughter were to be the objects of his bounty, and that he specifically did not intend to leave\nanything to his son. There is also no evidence in the record of anything that might have happened to\nchange Edmonds\xe2\x80\x99 mind in the period prior to his death. Accordingly, we hold that these facts are\nsufficient to support the trial court\xe2\x80\x99s finding of clear and convincing evidence that Edmonds did not\ndestroy the original 2002 Will with the intention of revoking it.\nIII. Conclusion\nFor the reasons stated, we will affirm the judgment of the trial court.\nAffirmed.\n\nHarrison v. Bird, 621 So.2d 972 (Ala. 1993)\nHOUSTON, Justice.\nThe proponent of a will appeals from a judgment of the Circuit Court of Montgomery County\nholding that the estate of Daisy Virginia Speer, deceased, should be administered as an intestate\nestate and confirming the letters of administration granted by the probate court to Mae S. Bird.\nThe following pertinent facts are undisputed:\nDaisy Virginia Speer executed a will in November 1989, in which she named Katherine Crapps\nHarrison as the main beneficiary of her estate. The original of the will was retained by Ms. Speer\xe2\x80\x99s\nattorney and a duplicate original was given to Ms. Harrison. On March 4, 1991, Ms. Speer\ntelephoned her attorney and advised him that she wanted to revoke her will. Thereafter, Ms. Speer\xe2\x80\x99s\nattorney or his secretary, in the presence of each other, tore the will into four pieces. The attorney\nthen wrote Ms. Speer a letter, informing her that he had \xe2\x80\x9crevoked\xe2\x80\x9d her will as she had instructed and\nthat he was enclosing the pieces of the will so that she could verify that he had torn up the original.\nIn the letter, the attorney specifically stated, \xe2\x80\x9cAs it now stands, you are without a will.\xe2\x80\x9d\nMs. Speer died on September 3, 1991. Upon her death, the postmarked letter from her attorney was\nfound among her personal effects, but the four pieces of the will were not found. Thereafter, on\nSeptember 17, 1991, the Probate Court of Montgomery County granted letters of administration on\nthe estate of Ms. Speer, to Mae S. Bird, a cousin of Ms. Speer. On October 11, 1991, Ms. Harrison\nfiled for probate a document purporting to be the last will and testament of Ms. Speer and naming\nMs. Harrison as executrix. On Ms. Bird\xe2\x80\x99s petition, the case was removed to the Circuit Court of\nMontgomery County. Thereafter, Ms. Bird filed an \xe2\x80\x9cAnswer to Petition to Probate Will and Answer\nto Petition to Have Administratrix Removed,\xe2\x80\x9d contesting the will on the grounds that Ms. Speer had\nrevoked her will.\nThereafter, Ms. Bird and Ms. Harrison moved for summary judgments, which the circuit court\ndenied. Upon denying their motions, the circuit court ruled in part (1) that Ms. Speer\xe2\x80\x99s will was not\nlawfully revoked when it was destroyed by her attorney at her direction and with her consent, but\nnot in her presence, see Ala. Code 1975 \xc2\xa7 43-8-136(b); (2) that there could be no ratification of the\n507\n\n\x0cdestruction of Ms. Speer\xe2\x80\x99s will, which was not accomplished pursuant to the strict requirements of \xc2\xa7\n43-8-136(b); and (3) that, based on the fact that the pieces of the destroyed will were delivered to\nMs. Speer\xe2\x80\x99s home but were not found after her death, there arose a presumption that Ms. Speer\nthereafter revoked the will herself. However, because the trial court found that a genuine issue of\nmaterial fact existed as to whether Ms. Harrison had rebutted the presumption that Ms. Speer\nintended to revoke her will even though the duplicate was not destroyed, it held that \xe2\x80\x9cthis issue must\nbe submitted for trial.\xe2\x80\x9d\nSubsequently, however, based upon the affidavits submitted in support of the motions for summary\njudgment, the oral testimony, and a finding that the presumption in favor of revocation of Ms.\nSpeer\xe2\x80\x99s will had not been rebutted and therefore that the duplicate original will offered for probate\nby Ms. Harrison was not the last will and testament of Daisy Virginia Speer, the circuit court held\nthat the estate should be administered as an intestate estate and confirmed the letters of\nadministration issued by the probate court to Ms. Bird.\nIf the evidence establishes that Ms. Speer had possession of the will before her death, but the will is\nnot found among her personal effects after her death, a presumption arises that she destroyed the\nwill. See Barksdale v. Pendergrass, 294 Ala. 526, 319 So.2d 267 (1975). Furthermore, if she destroys\nthe copy of the will in her possession, a presumption arises that she has revoked her will and all\nduplicates, even though a duplicate exists that is not in her possession. See Stiles v. Brown, 380 So.2d\n792 (Ala. 1980); see, also, Snider v. Burks, 84 Ala. 53, 4 So. 225 (1887). However, this presumption of\nrevocation is rebuttable and the burden of rebutting the presumption is on the proponent of the\nwill. See Barksdale, supra.\nBased on the foregoing, we conclude that under the facts of this case there existed a presumption\nthat Ms. Speer destroyed her will and thus revoked it. Therefore, the burden shifted to Ms. Harrison\nto present sufficient evidence to rebut that presumption\xe2\x80\x94to present sufficient evidence to convince\nthe trier of fact that the absence of the will from Ms. Speer\xe2\x80\x99s personal effects after her death was not\ndue to Ms. Speer\xe2\x80\x99s destroying and thus revoking the will. See Stiles v. Brown, supra.\nFrom a careful review of the record, we conclude, as did the trial court, that the evidence presented\nby Ms. Harrison was not sufficient to rebut the presumption that Ms. Speer destroyed her will with\nthe intent to revoke it. We, therefore, affirm the trial court\xe2\x80\x99s judgment.\nWe note Ms. Harrison\xe2\x80\x99s argument that under the particular facts of this case, because Ms. Speer\xe2\x80\x99s\nattorney destroyed the will outside of Ms. Speer\xe2\x80\x99s presence, \xe2\x80\x9c[t]he fact that Ms. Speer may have had\npossession of the pieces of her will and that such pieces were not found upon her death is not\nsufficient to invoke the presumption [of revocation] imposed by the trial court.\xe2\x80\x9d We find that\nargument to be without merit.\nAFFIRMED.\nNotes, Problems, and Questions\n1. Unless there is a statute mandating a contrary result, a will that is (1) lost, (2) destroyed without\nthe testator\xe2\x80\x99s consent, or (3) destroyed with the testator\xe2\x80\x99s consent but not in compliance with the\nrevocation statute may be admitted into probate if its contents can be proven. For example, during\n508\n\n\x0cHurricane Katrina, a large number of wills were probably destroyed as a result of the floods. Those\nwills were destroyed without the testators\xe2\x80\x99 consent, so they can be probated if their terms can be\nproved from copies or otherwise.\n2. The terms of the lost will must be proven. For example, K.S.A. 59-2228 provides \xe2\x80\x9cA lost or\ndestroyed will may be established if its provisions are clearly and distinctly proved. When such will is\nestablished the provisions thereof shall be distinctly stated, certified by the court, and filed and\nrecorded. Letters shall issue thereon as in the case of other wills.\xe2\x80\x9d\n3. A few states limit the probate of lost wills. For instance, N.R.S. 136.240(3) states \xe2\x80\x9c*** no will may\nbe proved as a lost or destroyed will unless it is proved to have been in existence at the death of the\nperson whose will it is claimed to be, or is shown to have been fraudulently destroyed in the lifetime\nof that person, nor unless its provisions are clearly and distinctly proved by at least two credible\nwitnesses.\xe2\x80\x9d\n4. In 1990, Pauline executed a will stating, \xe2\x80\x9cI leave my estate in equal parts to my nieces, Betty, Jean\nand Clara.\xe2\x80\x9d In 2007, Pauline called her attorney and said, \xe2\x80\x9cI need you to tear up my will because I\ndon\xe2\x80\x99t want my niece to get any of my things. I plan to leave it all to charity.\xe2\x80\x9d The attorney torn up\nthe will in front of his secretary and placed it in Pauline\xe2\x80\x99s file. In 2014, Pauline was killed in a train\naccident. Pauline\xe2\x80\x99s nieces submitted the 1990 will for probate. Henry, Pauline\xe2\x80\x99s sole intestate heir\nfiled an action contesting the probate of the will. What is the likely outcome of the case?\n5. In 2000, Georgia executed a will stating, \xe2\x80\x9cI leave half of my estate to Dennis and half of my\nestate to Wilma.\xe2\x80\x9d Georgia died in 2011. At that time, her will was found stuck inside of her\nshredder. The will was intact and only had slight tears on the edge of the pages. Dennis and Wilma\nsubmitted Georgia\xe2\x80\x99s will for probate. What is the possible result?\n11.6.3 Dependent Relative Revocation and Revival (DRRR)\nCourts will honor the testator\xe2\x80\x99s intent to revoke his or her will, but what if that intent is\nbased on misinformation. According to the DRRR, if the testator decides to revoke her will because\nof a mistaken assumption of law or fact, the court will not give the revocation effect if evidence is\nintroduced showing that the testator would not have revoked the will if her or she had known the\ntruth. The doctrine is one of presumptive intent, not actual intent. It only applies where there is an\nalternative plan disposition that fails or where the mistake is recited in the terms of the revoking\ninstrument or established by clear and convincing evidence. It is not enough just to revoke the will.\nConsider the following examples.\nExample:\nT revokes her 2000 will because she thinks the jurisdiction will allow her to write a letter to dispose\nof her property. The state does not recognize holographic wills, so the revocation is based upon a\nmistaken assumption of law. The court will ignore the revocation and probate the 2000 will because\nit presumes that T would not want to die intestate. The purpose is to carry out T\xe2\x80\x99s intent.\nExample:\n509\n\n\x0cT revokes her 2000 will leaving all of her property to her friend, Bob, because she thinks that Bob is\ndead. Bob is alive, so the revocation is based upon a mistaken assumption of fact. The court will\nignore the revocation and probate the 2000 will.\n11.6.3.1 DRRR\n\nKroll v. Nehmer, 705 A.2d 716 (Md. 1998).\nWILNER, Judge.\nMargaret Binco died on December 19, 1994, leaving four wills-one dated July 24, 1980, a second\ndated April 12, 1985, a third dated June 28, 1990, and a fourth dated October 27, 1994. We are\nconcerned here only with the second will-the 1985 will.\nThe 1980 will, it appears, had been altered, and, although it was at one time offered for probate, no\none now contends that it has any validity. When Ms. Binco drew the 1990 will, she wrote on the\nback of her 1985 will \xe2\x80\x9cVOID-NEW WILL DRAWN UP 6-28-90.\xe2\x80\x9d The 1990 and 1994 wills, all\nparties agree, are ineffective because they lack the signatures of attesting witnesses, as required by\nMaryland Code, Estates and Trusts Article, \xc2\xa7 4-102. Accordingly, if the 1985 will was effectively\nrevoked by Ms. Binco, she would have died intestate, in which event appellant, her brother and\nclosest surviving relative, who was not named as a beneficiary under the 1985, 1990, or 1994 wills,\nwould inherit. The dispute now before us is therefore between appellant, urging that the 1985 will\nhad been revoked, and appellee, the person who offered that will for probate and who was\nappointed as personal representative to administer the estate under the will, who contends that the\n1985 will had not been effectively revoked.\nOver appellant\xe2\x80\x99s objection, the Orphans\xe2\x80\x99 Court for Baltimore County, apparently applying the\ndoctrine of dependent relative revocation, admitted the 1985 will to probate, notwithstanding its\napparent revocation by Ms. Binco. The Circuit Court for Baltimore County affirmed that decision.\nWe granted certiorari on our own initiative before any proceedings in the Court of Special Appeals to\nconsider whether the lower courts erred in applying the doctrine and finding the 1985 will to be\nvalid. We believe that they did err and shall therefore reverse.\nDependent Relative Revocation\nSection 4-105 of the Estates and Trusts Article permits a will to be revoked by \xe2\x80\x9ccancelling ... the\nsame, by the testator himself....\xe2\x80\x9d It is clear, and neither party now suggests otherwise, that, by writing\non the 1985 will \xe2\x80\x9cVOID-NEW WILL DRAWN UP 6-28-90\xe2\x80\x9d and retaining the will, so marked,\namong her papers, Ms. Binco intended to revoke that will and that, unless saved by the doctrine of\ndependent relative revocation, that will was effectively revoked.\nAs we indicated in Arrowsmith v. Mercantile-Safe Deposit, 313 Md. 334, 343, 545 A.2d 674, 679 (1988), ,\nno reported Maryland appellate decision has ever applied that doctrine. The doctrine, in its most\ngeneral form, is described in 2 WILLIAM J. BOWE & DOUGLAS H. PARKER, PAGE ON THE\n510\n\n\x0cLAW OF WILLS \xc2\xa7 21.57 at 446 (rev. ed.1960):\n\xe2\x80\x9cIn general the doctrine of dependent relative revocation applies to invalidate the\nrevocation of a will where it is shown that the revocation was conditioned on the\noccurrence of certain facts which never came to pass or upon the existence or\nnonexistence of circumstances which were either absent or present contrary to\nthe condition.\xe2\x80\x9d\nAs most commentators, including the revisors of Page\xe2\x80\x99s opus, point out, in applying the doctrine,\ncourts often speak in terms of a conditional revocation, regarding the revocation as conditioned on the\nexistence of a set of facts or circumstances that the testator assumes to exist, when, in reality, the\nrevocation is itself unconditional but is rather based on a mistaken frame of mind-a mistake of either\nfact or law. They give as an example of a mistake of fact the circumstance in which a testator\nphysically destroys his will believing that the document he is destroying is not his will but some\nother instrument. In that circumstance, they suggest, the necessary intention to revoke the will is\nclearly lacking, and a \xe2\x80\x9cmistake of this sort prevents revocation, although all the other elements are\npresent.\xe2\x80\x9d Id. at 448. There is no need in that situation to construe the revocation as a \xe2\x80\x9cconditional\xe2\x80\x9d\none-the presumed condition being that the document being destroyed is not the testator\xe2\x80\x99s will-for a\nmistake of that kind suffices on its own to justify granting relief.\nThe more troublesome branch of the doctrine is where the mistake is not in the act of revocation\nitself but in the inducement for the act, arising from facts or circumstances extrinsic to the\ninstrument revoked. This often takes the form of a mistake of law or of legal consequences. The\nmost common instance of this form is \xe2\x80\x9cwhere a testator revokes a later will in the belief that he can\nthus put a prior will into effect, or where he revokes a prior instrument thinking that a later\ninstrument has been executed in due form and that no other facts exist which will prevent such\ninstrument from operating as a later will.\xe2\x80\x9d Id. at 448. See also Joseph Warren, Dependent Relative\nRevocation, 33 Harv. L. Rev. 337, 342 (1920).\nIt is possible, of course, for a testator to make clear that his revocation of an existing will is\nconditioned on the legal validity or effectiveness of some other instrument, but, as the Page authors\nnote, in most instances the testator has simply assumed that state of affairs and has articulated no\nsuch condition. In such cases, the revocation is really less of a conditional one than one based on a\nmistake of law which, if regarded in that manner, would not normally suffice to avoid an otherwise\ndeliberate act. Some courts, in an effort to effectuate what they presume would have been the\ntestator\xe2\x80\x99s intent had he known the true circumstances, have thus constructed the fiction of a\nconditional, or dependent relative, revocation, as a more plausible theory upon which to provide\nrelief. See George E. Palmer, Dependent Relative Revocation and its Relation to Relief for Mistake, 69 Mich.\nL.Rev. 989-90 (1970-71):\n\xe2\x80\x9cThe one part of the law of wills in which courts often do give relief for mistake\nis in connection with revocation by holding that an apparent revocation was\nineffective because of mistake in underlying assumptions. Rarely, if ever,\nhowever, does a modern court rest its decision squarely on its power to relieve\nfor mistake. Instead, the testator\xe2\x80\x99s intent to revoke is regarded as conditioned\nupon the truth of the matter in question; since the condition has not been met\nthe conclusion is reached that there was no revocation for lack of the requisite\nintent. This is the doctrine of dependent relative revocation. It rests upon an\n511\n\n\x0canalysis that, with few exceptions, is found nowhere else in the law relating to mistake in\nunderlying assumptions.\xe2\x80\x9d\n(Emphasis added.)\nThis theory, almost peculiar to revocations of wills, gained initial currency in English decisions.\nJoseph Warren, Dependent Relative Revocation, supra, 33 Harv. L. Rev. at 337. As Page, and increasingly\nmany courts, have warned, however, the testator\xe2\x80\x99s true intentions in a mistake of law-implied\ncondition context are often ambiguous-harder to discern with real clarity and authority-and, before\napplying legal fictions based on undocumented presumptions to accept as valid a will that has\notherwise been facially revoked in accordance with all legal prerequisites, courts need to examine the\ncircumstances with great care and caution.2 We shall turn now to those circumstances, as they appear\nin this case.\n\nThe Four Wills and the Proceedings Below\nWhen Ms. Binco died, her only heir was her brother, Henry J. Kroll, the appellant. Mr. Kroll was not\nmentioned as a beneficiary in any of the three later wills; the 1980 will is not in the record before us,\nbut, from a comment made during the hearing in the circuit court, it appears that he was left a car in\nthat will. The 1985 will was drawn by an attorney and made a complete disposition of Ms. Binco\xe2\x80\x99s\nestate. She left her jewelry, furs, and furniture to five individuals-Charmaine Kilmartin, Esther\nStrebech, Betty Ball, Joan Romanowski, and Phyllis Butler; a credit union account was left to a sixth\nindividual; AT & T stock was bequeathed equally to two charities-First Church of God and\nLutheran Social Services of Maryland; and Standard Oil Company stock was left to Spay and Neuter\nAll Pets, Inc. St. John\xe2\x80\x99s Lutheran Church, the First Church of God, and Spay and Neuter All Pets,\nInc. shared equally in the residuary bequest. Ms. Romanowski was named as personal\nrepresentative.\nThe 1990 will, which was handwritten and contained a number of margin notes and interlineations,\nhad no residuary clause, so it is not clear whether that will made a complete disposition of Ms.\nBinco\xe2\x80\x99s estate. None of the individuals mentioned in the 1985 will were included in the 1990 will.\nSome of the beneficiaries are referred to only by their first names-Ms. Binco\xe2\x80\x99s house and certain\nstock, for example, is left to \xe2\x80\x9cRichard and Sharyn\xe2\x80\x9d; clothing is left to \xe2\x80\x9cChris\xe2\x80\x9d; mink stoles are left to\n\xe2\x80\x9cBea\xe2\x80\x9d and \xe2\x80\x9cPat.\xe2\x80\x9d Other bequests suggest that \xe2\x80\x9cRichard\xe2\x80\x9d is Richard Kroll, appellant\xe2\x80\x99s son and Ms.\nBinco\xe2\x80\x99s nephew. In a Notice of Hearing sent later by the Register of Wills, \xe2\x80\x9cSharyn\xe2\x80\x9d is identified as\nSharyn L. Trent, but it is not clear from the record what, if any, relationship she has with Richard\nKroll or with Ms. Binco. Pat Sonneborn, Bea Reynolds-possibly the \xe2\x80\x9cPat\xe2\x80\x9d and \xe2\x80\x9cBea\xe2\x80\x9d named as\nlegatees-along with a \xe2\x80\x9cHank,\xe2\x80\x9d who might be appellant, are listed as executors. The First Church of\nGod is mentioned in the will, but it is not at all clear what, if any, bequest is made to that charity.\nOne or more of the interlineations appear to have been made after the initial will was written. A\nprovision stating \xe2\x80\x9cPay Norman Lauenstein-Atty,\xe2\x80\x9d for example, is crossed out, and, in the margin is\nwritten \xe2\x80\x9cPaid Him.\xe2\x80\x9d\nThe 1994 will is also a handwritten document, containing no residuary clause. At the top, Ms. Binco\ndeclares it as her Last Will and Testament and states that she \xe2\x80\x9cwould like to designate the following\nitems to those mentioned below.\xe2\x80\x9d Her car, which in the 1990 will went to Richard Kroll, was given\nto Pat Sonneborn. Her house, which was formerly to go to Sharyn and Richard, was left to Beate\nReynolds. With the exception of a bedroom set and table that were left to Pat Sonneborn, the\n512\n\n\x0cfurniture in the house was left to Ms. Reynolds as well. A credit union account was left to Ms.\nSonneborn and a Rosedale Federal account was left to Ms. Reynolds. Certain stock was bequeathed\n50% to Richard Kroll, 25% to Ms. Sonneborn, and 25% to Ms. Reynolds. One thousand dollars of\ninsurance was left to the First Church of God, and another $1,000 was left to Friends of Animals.\nMs. Sonneborn and Richard Kroll were designated as executors.\nNeither the 1990 will nor the 1994 will make any reference to any earlier will, and, as noted, neither\ncontains the signatures of any attesting witnesses, although the 1990 will has a place designated for\nwitnesses.\nUnfortunately, the record of proceedings in the orphans\xe2\x80\x99 court transmitted to this Court does not\nconstitute the complete file and is somewhat difficult to follow, although we can piece together\nessentially what occurred from what we have and from what the parties assert in their briefs. At\nsome point after Ms. Binco\xe2\x80\x99s death, Richard Kroll presented the 1990 will for judicial probate.\nSubsequently, appellee presented the 1980 will for judicial probate. At a hearing held on March 14,\n1995, appellant produced the 1985 will which, over his objection, was admitted to probate. Appellee,\nidentified as the Pastor of St. Johns\xe2\x80\x99s Lutheran Church, was appointed as personal representative.\nAppellant then filed a caveat to the will contending, among other things, that Ms. Binco did not\nhave sufficient mental capacity to make that will, that the contents of the will had not been read or\nexplained to her, that the will was procured by fraud and undue influence, and that it had, in any\nevent, been subsequently revoked. In an amended petition and caveat, he asked that those issues be\ntried in the circuit court. On August 9, 1995, the orphans\xe2\x80\x99 court dismissed appellant\xe2\x80\x99s amended\npetition and caveat, without assigning any reasons. In that same order, the court formally rejected\nthe 1990 will on the ground that \xe2\x80\x9cit does not satisfy the statutory requirement of a valid will and is\nnot in good form.\xe2\x80\x9d\nAppellant noted an appeal to the circuit court but in that court effectively abandoned any complaint\nwith respect to Ms. Binco\xe2\x80\x99s testamentary capacity or to any fraud or undue influence. The sole\nquestion presented to the circuit court was whether the orphans\xe2\x80\x99 court erred in applying the doctrine\nof dependent relative revocation and admitting the 1985 will to probate, notwithstanding its\napparent revocation. After a brief evidentiary hearing, the court entered an order affirming the\nadmission of the 1985 will to probate. The basis of its ruling was that \xe2\x80\x9cthe revocation of the April\n12, 1985 Will was so related to the making of the June 28, 1990 Will as to be dependent on it.\nTherefore, since the June 28, 1990 Will was invalid, the April 12, 1985 Will, whose contents can be\nascertained, should be given effect.\xe2\x80\x9d\nApplication of Dependent Relative Revocation\nAt issue here is the branch of the dependent relative revocation doctrine that, in effect, disregards\nconduct otherwise qualifying as a revocation of a will when that conduct, in the court\xe2\x80\x99s view, was\nbased on an assumption by the testator that the will being revoked would be immediately replaced\nby a valid new will. It is the \xe2\x80\x9cmistake of law\xe2\x80\x9d branch of the doctrine. Two overlapping and confluent\nassumptions underlie the theory. One was expressed in a 1929 Annotation, A.G.S., Effect of Testator\xe2\x80\x99s\nAttempted Physical Alteration of Will After Execution, 62 A.L.R. 1367, 1401 (1929):\n\xe2\x80\x9cIt is based upon the presumption that the testator performed the act of\nrevocation with a view and for the purpose of making some other disposition of\nhis property in place of that which was canceled, and that there is, therefore, no\n513\n\n\x0creason to suppose that he would have made the change if he had been aware that\nit would have been wholly futile, but that his wishes with regard to his property,\nas expressed in his original will, would have remained unchanged, in the absence\nof any known and sufficient reason for changing them.\xe2\x80\x9d\nSee also the 1952 update of that Annotation, L.S. Tellier, Effect of Testator\xe2\x80\x99s Attempted Physical Alteration\nof Will After Execution, 24 A.L.R.2d 514, 554 (1952).\nA second, or perhaps simply a different articulation of the same, theory offered in support of the\ndoctrine comes into play when, as is often the case, the effect of not disregarding the revocation is\nfor the decedent\xe2\x80\x99s estate, or some part of it, to pass intestate. See In re Macomber\xe2\x80\x99s Wills, 274 A.D. 724,\n87 N.Y.S.2d 308, 313 (1949): \xe2\x80\x9cThe rule seeks to avoid intestacy where a will has once been duly\nexecuted and the acts of the testator in relation to its revocation seem conditional or equivocal.\xe2\x80\x9d See\nalso Goriczynski v. Poston, 248 Va. 271, 448 S.E.2d 423, 425 (1994). The law disfavors intestacies and\nrequires that, whenever reasonably possible, wills be construed to avoid that result. Crawford v.\nCrawford, 266 Md. 711, 719, 296 A.2d 388, 392 (1972). Courts have made it clear, however, that the\nlaw\xe2\x80\x99s preference for a testate disposition is always subordinate to the intention of the testator,\nwhether ascertained or presumed. See Charleston Library Soc. v. Citizens & Southern Nat. B., 200 S.C. 96,\n20 S.E.2d 623, 632 (1942).\nAlthough, as noted, this Court has never applied the doctrine, we have discussed aspects of it in\nthree cases. In Semmes v. Semmes, 7 H. & J. 388 (Ms. 1826), the testator had a will leaving his entire\nestate to his wife, in trust for herself and his infant son until the child reached 21, at which point\none-half of the personal property was to go to her absolutely. When his wife predeceased him, the\ntestator used a pen to obliterate his signature and those of the attesting witnesses and to write on the\nbottom of the will, \xe2\x80\x9cIn consequence of the death of my wife, it is become necessary to make another\nwill.\xe2\x80\x9d Id. at 389. Unfortunately, he died before making another will. The orphans\xe2\x80\x99 court refused to\nprobate the existing will, and this Court affirmed that judgment. Our predecessors discussed the\ndoctrine of dependent relative revocation as it had been applied in some English cases, notably\nOnions v. Tyrer, 1 P. Williams, 343 (1717), characterizing the doctrine as based on a mistake principle:\n\xe2\x80\x9cThe cancelling of a will is said to be an equivocal act, and not to effect a\nrevocation, unless it is done animo revocandi. And where it is a dependent relative\nact, done with reference to another, which is meant and supposed to be good\nand effectual, it may be a revocation or not, as to that to which it relates is\nefficacious or not. As where a man having duly executed one will, afterwards\ncauses another to be prepared, and supposing the second to be duly executed,\nunder that impression alone cancels the first. In such case it has been held, that\non the second turning out not to have been duly executed, the cancelling the\nfirst, being done by mistake and misapprehension, would not operate as a\nrevocation.\xe2\x80\x9d\n7 H. & J. at 390-91.\nHaving so characterized the doctrine, the Court made clear that the doctrine would never apply\n\xe2\x80\x9cwhere a man has deliberately and intentionally cancelled his will, as in this case, in the entire\nabsence of all accident or mistake, notwithstanding he may, at the time, have intended to make\nanother will.\xe2\x80\x9d Id. at 391. We accepted, from the evidence, that the testator did not intend to die\n514\n\n\x0cintestate but held that \xe2\x80\x9chowever that may be, we cannot make a will for him.\xe2\x80\x9d Id. On its facts,\nSemmes was similar to the situation in In re Emernecker\xe2\x80\x99s Estate, supra 218 Pa. 369, 67 A. 701, where the\nrevocation also was not actually accompanied by the preparation of a new, albeit ineffective will.\nOur second brush with the doctrine was in Safe Dep. & Trust Co. v. Thom, 117 Md. 154, 83 A. 45\n(1912), which presented somewhat the same situation as Semmes, although with different facts. The\ntestatrix, who had five children, had signed a valid will in March, 1907. Item I of that will left\n$10,000 in cash to four of the children; Item II left $10,000 in trust for the fifth child, who\napparently was mentally disabled. After providing for some additional small bequests, the testatrix\nleft the residue of her estate in trust, with one-fifth of the income to be paid quarterly to each of the\nfive children during their lives (the disabled son\xe2\x80\x99s share to be paid to his trustee), and a one-fifth\nshare of the corpus to be paid to the children of any deceased child. In April, 1910, the testatrix\ninformed her attorney that she wanted to change her will to leave the one-fifth shares to the four\ncompetent children outright and not in trust and to make a number of other minor bequests. She\nsaid that she would prepare and send to the lawyer a list of those bequests. In June, 1910, she\ninformed him that she had rubbed out the first provision in her will, leaving the competent children\n$10,000 each, since they would be getting their full one-fifth share absolutely. The lawyer stated that\nhe told the testatrix not to attempt to change the will in that manner.\nThe testatrix died without ever making a new will or sending the lawyer the list of new bequests.\nAmong her papers was the 1907 will on which the names of the four children in Item I had been\nrubbed but the letters then relined or retraced in pencil. Accompanying the will, in a sealed envelope,\nwas a letter to the lawyer containing the list of bequests. With the agreement of all parties, the\ntrustee named in the will offered the will for probate, following which two of the competent\nchildren petitioned the orphans\xe2\x80\x99 court to declare the will cancelled and revoked by reason of the\nerasure. The court, over objection, granted the petition and denied probate. We reversed.\nAlthough, as in Semmes, we discussed the doctrine of dependent relative revocation, that was not the\nbasis for our decision. Rather, we concluded from the evidence that there was no revocation of the\nwill in the first instance. The act that might be regarded as a revocation-the attempt to obliterate a\nprovision-was incomplete, \xe2\x80\x9cnot in the sense that the clause was not entirely rubbed out or\nobliterated, but in the sense that that which was begun was not finished and was abandoned.\xe2\x80\x9d Id. at\n163, 83 A. 45. Before completing any obliteration, we noted, the testatrix changed her mind and\nretraced the letters rubbed, thereby indicating an intent not to revoke the instrument.\nOur most recent consideration of the doctrine came in Arrowsmith v. Mercantile-Safe Deposit, supra, 313\nMd. 334, 545 A.2d 674. The testator there left three relevant wills, drawn, respectively in 1966, 1976,\nand 1982, the earlier wills each being expressly revoked by a provision in the next succeeding will.\nAll three wills purported to exercise a power of appointment given to the testator through a 1953\ndeed of trust from his mother. When the testator died in 1983, a question was raised whether the\nappointment in the 1982 will violated the rule against perpetuities. Indeed, the circuit court held that\nthere was such a violation, a conclusion that we affirmed. The power as exercised in the 1966 will\ndid not present a perpetuities problem, and, in an effort to save the testamentary disposition and not\nhave the property distributed under the 1953 deed of trust in default of an appointment, the parties\nwho would be benefitted by that approach asked the court to sustain the 1966 provision under a\ntheory of dependent relative revocation. The theory seemed to be that, had the testator been aware\nthat his exercise of the power in the 1976 and 1982 wills would be ineffective, he would not have\nrevoked the 1966 provision.\n515\n\n\x0cAs was the case in Semmes and Safe Dep. & Trust Co., it was not necessary for us in Arrowsmith to\ndetermine whether we would accept the doctrine in any of its manifestations, for even if accepted\ninto Maryland law, it could not be applied as urged. At 345, 545 A.2d 674, we noted that \xe2\x80\x9c[p]lucking\nthe perpetuities saving clause from the 1966 will and inserting it in the 1982 will is inconsistent with\nthe theoretical justification for the doctrine.\xe2\x80\x9d Harking back to what the Court said in Semmes, Judge\nRodowsky pointed out that \xe2\x80\x9cthis Court is neither empowered to write a will for [the testator] nor\nstructure a will that differs from any will which [the testator] ever executed.\xe2\x80\x9d Id. at 350, 545 A.2d\n674.\nThis case presents for the first time a situation in which the doctrine might be applied and in which\nother courts have applied it. It is not a situation, however, in which we believe it appropriate to\napply the doctrine.\nIt is important to keep in mind that, in the context now before us, the doctrine rests on a fiction that\nis, in turn, supported only by an assumption as to what Ms. Binco would have done had she known\nthat her 1990 will was invalid. As Professor Warren observed in his law review article, \xe2\x80\x9c[t]he inquiry\nshould always be: What would the testator have desired had he been informed of the true situation?\xe2\x80\x9d\nJoseph Warren, Dependent Relative Revocation, supra, 33 Harv. L.Rev. at 345. The most rational and\nobvious answer to that question, of course, is that the testator would have desired to make the new\ninstrument effective, and, if presumed intent were to control, the court would simply overlook the\nstatutory deficiency and probate the new will, rather than overlook the legal effect of an otherwise\ndeliberate revocation and probate the old one. That is an option the law does not permit, however.\nWe thus must look for secondary, fictional intentions never actually possessed by Ms. Binco. The\nreal question is what Ms. Binco would have wanted to do if she had been told that she was unable to\nmake a new will: would she have preferred her estate to pass under the existing (1985) will to\npersons she had decided to remove as beneficiaries, or would she have preferred that her estate pass\nintestate to her brother?\nIn attempting to arrive at a reasonable answer to that kind of question, courts have considered all of\nthe relevant circumstances surrounding the revocation-the manner in which the existing will was\nrevoked, whether a new will was actually made and, if so, how contemporaneous the revocation and\nthe making of the new will were, parol evidence regarding the testator\xe2\x80\x99s intentions, and the\ndifferences and similarities between the old and new wills. The courts recognize that the question is\nalways one of presumed intent. In many cases, because the other evidence is either inconclusive or\nnonexistent, the principal focus is on the differences and similarities between the two instruments.\nIn that regard, the courts have generally refused to apply the doctrine unless the two instruments\nreflect a common dispositive scheme. (citations omitted).\nConversely, courts that have applied the doctrine have looked to the similarity of the new and old\ndispositive schemes as a basis for concluding that the testator indeed intended the revocation to be\nconditional and that he would have preferred to have his estate pass under the old will rather than\nthrough an intestacy. (citations omitted).\nIn the case before us, Ms. Binco indicated a clear intent to revoke her 1985 will by writing VOID on\nthe back of it. Unlike the situation in Safe Dep. & Trust Co., supra, 117 Md. 154, 83 A. 45, there is\nnothing ambiguous about her intent to revoke that will. Also unlike that case and Semmes, however,\nshe did contemporaneously handwrite a new will, thereby indicating with some clarity that her act of\n516\n\n\x0crevocation was based on her mistaken belief that the new will was valid and would replace the old\none. The confluent inference, that she intended to revoke the 1985 will based on her belief that it\nwould be superseded by the 1990 will, does not alone justify application of the doctrine of\ndependent relative revocation. We must still search for that fictional presumed intent of what she\nwould have done had she been informed that she could not make a new will. There was some\nevidence that Ms. Binco did not have a good relationship with her brother and would not have\ndesired that he take any part of her estate. That evidence was contradicted, however, by testimony\nthat appellant and his sister did have a cordial relationship.\nWe turn, then, to a comparison of the 1985 and 1990 wills and, as noted, we find two very different\ndispositive schemes. Apart from the fact that the 1990 will did not contain a residuary clause and\nmay not have effected an entirely testate disposition, the fact is that, with the possible exception of\nthe First Church of God, whose status under the 1990 will is, at best, unclear, none of the\nbeneficiaries under the 1985 will were named in the 1990 will. The 1990 will replaced them all,\nindicating that Ms. Binco did not wish any of them (again with the possible exception of the First\nChurch of God) to be benefitted. The effect of applying the doctrine and disregarding her\nrevocation, however, is precisely to do what she clearly did not want done-to leave her estate to\npeople she had intended to disinherit. We cannot fairly presume such an intent on her part; nor\nshould the lower courts have done so.\nWe need not decide in this case whether the doctrine of dependent relative revocation, as articulated\nabove, is part of Maryland law and, if it is, the circumstances under which it may properly be\napplied. It cannot be applied under the circumstances of this case.\nJudgment Reversed; Case Remanded to Circuit Court For Baltimore County With Instructions to\nReverse Order of Orphans\xe2\x80\x99 Court Admitting 1985 Will to Probate; Appellee to Pay the Costs.\nNotes, Problems, and Questions\n1. If a testator cancels or destroys a will with the present intention of making a new one\nimmediately and as a substitute and the new will is not made or, if made, fails of effect for any\nreason, it will be presumed that the testator preferred the old will to intestacy, and the old one will\nbe admitted to probate in the absence of evidence overcoming the presumption. La Croix v. Seneca,\n99 A.2d 115 (1953).\n2. In 2008, Frannie executed a will stating, \xe2\x80\x9cI leave my entire estate to Theresa and Donald.\xe2\x80\x9d In\n2009, Donald told Frannie that Theresa had been killed in a car accident. In 2010, Frannie revoked\nher will because she wanted to include a devise to her grandson, Willis. The new will stated, \xe2\x80\x9cI leave\nmy entire estate to Willis and Donald.\xe2\x80\x9d The will was witnessed by Willis and Beth. The jurisdiction\nrequires the will to be witnessed by two competent witnesses. In a jurisdiction that recognizes\nDRRR, how will Frannie\xe2\x80\x99s estate be distributed?\n11.6.3.2 Revival\nIn most states the rule of revival is now statutory in nature. Consider the following example.\nT executed a will in 2005. T executed a will in 2006. The 2006 will specifically revoked the 2005 will.\nIn 2009, T revoked the 2006 will. The issue is whether or not the 2005 will is revived. If not, T\nwould have died intestate. The answer to the question depends on the approach taken in the\njurisdiction. In the majority of jurisdictions, a will is revived if the testator so intends. The testator\xe2\x80\x99s\nintent may be shown from the circumstances surrounding revocation of the second will or from the\n517\n\n\x0ctestator\xe2\x80\x99s contemporaneous or subsequent oral declarations that the original will is to be probated. A\nminority of state statutes mandate that a revoked will cannot be revived unless it is re-executed with\ntestamentary formalities or republished by being referred to in a later duly executed testamentary\nwriting. See Stetson v. Stetson, 61 L.R.A. 258 (1903)(common law rule of revival).\n\nN.C.G.S.A. \xc2\xa7 31-5.8.Revival of revoked will\nNo will or any part thereof that has been in any manner revoked can, ****be revived otherwise than\nby a reexecution thereof, or by the execution of another will in which the revoked will or part\nthereof is incorporated by reference.\n\nVA Code Ann. \xc2\xa7 64.2-411. Revival of wills after revocation\nAny will or codicil, or any part thereof that has been revoked pursuant to *** shall not be revived\nunless such will or codicil is reexecuted in the manner required by law. Such revival operates only to\nthe extent that the testator\xe2\x80\x99s intent to revive the will or codicil is shown.\n\n20 Pa.C.S.A. \xc2\xa7 2506. Revival of revoked or invalid will\nIf, after the making of any will, the testator shall execute a later will which expressly or by necessary\nimplication revokes the earlier will, the revocation of the later will shall not revive the earlier will,\nunless the revocation is in writing and declares the intention of the testator to revive the earlier will,\nor unless, after such revocation, the earlier will shall be reexecuted. Oral republication of itself shall\nbe ineffective to revive a will.\n\nMCA 72-2-529. Revival of revoked will (Montana)\n(1) If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory\nact***, the previous will remains revoked unless it is revived. The previous will is revived if it is\nevident from the circumstances of the revocation of the subsequent will or from the testator\'s\ncontemporary or subsequent declarations that the testator intended the previous will to take effect as\nexecuted.\nProblems\n(Answer the following questions relying on the above statutes)\n1. In 2000, Janet executed a will stating, \xe2\x80\x9cI leave my house to Barry and the rest of my estate to\nPolly.\xe2\x80\x9d In 2002, Janet burned her 2000 will. In 2004, Janet executed a will stating, \xe2\x80\x9cI leave my entire\nestate to Barry.\xe2\x80\x9d In 2005, Janet told her lawyer, \xe2\x80\x9cI have had a change of heart and I want to make\nsure that Polly gets something. I don\xe2\x80\x99t want my son, Patrick to get anything.\xe2\x80\x9d In 2006, Janet burned\nher 2004 will. At that time, she told her neighbor, \xe2\x80\x9cI have fixed it where Polly will be taken care of.\xe2\x80\x9d\nIn 2011, Janet died survived by Patrick, her sole intestate heir. How will Janet\xe2\x80\x99s estate be distributed?\n\n518\n\n\x0c2. In 2001, Madison executed a will stating, \xe2\x80\x9cI leave my estate to Connie, Mitchell and Allison.\xe2\x80\x9d In\n2003, Madison executed a will that expressly revoked her 2001 will. The 2003 will stated, \xe2\x80\x9cI leave my\nestate to Allison and Thelma. In 2013, Madison wrote a letter to her attorney stating, \xe2\x80\x9cI want to\nrevoke the will I wrote in 2003. I like the terms of my 2001 will better. When I die, please let the\n2001 will stand. Madison died in 2015. Which will should control the distribution of her property?\n3. In 2007, Matthew executed a will stating, \xe2\x80\x9cI leave my estate to the Local University.\xe2\x80\x9d In 2008,\nLocal University merged with City University to form City-Local University. Matthew was upset\nabout the merger. In 2009, Matthew executed a will stating, \xe2\x80\x9cI revoked all prior wills. I leave my\nentire estate to Local Public Library.\xe2\x80\x9d In 2010, City-Local University gave Matthew an honorary\ndegree. On May 17, 2011, Matthew executed a will stating, \xe2\x80\x9cI revoke all prior wills. I want my estate\nto be distributed in the manner specified in the May 10, 2011 letter that I wrote to my sister,\nShirley.\xe2\x80\x9d The May 10, 2011 letter contained the following sentence: \xe2\x80\x9cI made a mistake when I went\nback on my word to give everything to Local University. Even though, I still don\xe2\x80\x99t like the merger, I\nwant to go back to my 2007 will, so I can keep my promises.\xe2\x80\x9d Which will should control the\ndisposition of Matthew\xe2\x80\x99s estate?\n11.6.4 Revocation by Changed Circumstances\nEvents that happen in the life of a testator may impact his or her will. Thus, a testator\xe2\x80\x99s will\nmay be revoked by operation of law due to changes in his or her family circumstances. In the\nmajority of jurisdictions, statutes provide that a divorce revokes any provision in the decedent\xe2\x80\x99s will\nfor the divorced spouse. If the testator executes a will and later marries, statutes in most states gives\nthe new spouse what he or she would receive under the intestacy system. However, the new spouse\ndoes not take an intestate share if the will indicates that the testator intentionally omitted the new\nspouse or the spouse is provided for in the will or by a will substitute with the intent that the\ntransfer be in lieu of a testamentary provision. In a few states, a premarital will is revoked entirely\nupon marriage. Almost all of the states have pretermitted child statutes that give a child born after\nthe execution of the will who is not mentioned in the will a share of the estate.\n11.6.4.1 Spouses\n\n11.6.4.1.1 Divorce\nDavis v. Aringe, 731 S.W.2d 210 (Ark. 1987)\nGLAZE, Justice.\nThis case is a will contest and involves whether the will of the decedent, Carlton Taylor, was revoked\nby operation of law, pursuant to Ark.Stat.Ann. \xc2\xa7 60\xe2\x80\x93407 (Supp.1985). The chancellor admitted the\nwill to probate, holding \xc2\xa7 60\xe2\x80\x93407 was inapplicable to the situation posed here, and the will provision\nfavoring Ima M. Darby, as residual legatee and devisee, was valid.\nThe parties have no dispute as to the facts. Taylor had executed a will nominating Darby (now\n519\n\n\x0cAringe) as executrix and leaving his entire estate to her, with the exception of a one-dollar bequest to\nhis brother. Thirteen months later, Taylor married Darby, but after two years of marriage, the parties\nwere divorced. Taylor died nineteen months after he obtained the divorce, without having changed\nhis will. Darby petitioned to probate Taylor\xe2\x80\x99s will, and Shelton Davis, Taylor\xe2\x80\x99s cousin and sole heir,\ncontested the will, claiming it had been revoked under \xc2\xa7 60\xe2\x80\x93407 because Taylor had married and\ndivorced Darby since the will had been executed. The chancellor upheld the Taylor will, reasoning\nthat Taylor had named Darby in his will when they were friends, not spouses, and that Taylor had\nnever changed it, even though a significant amount of time had passed (nineteen months) between\nthe parties\xe2\x80\x99 divorce and Taylor\xe2\x80\x99s death.\nSection 60\xe2\x80\x93407 provides:\nIf after making a will the testator is divorced or the marriage of the testator is\nannulled, all provisions in the will in favor of the testator\xe2\x80\x99s spouse are thereby\nrevoked. With these exceptions, no will or any part thereof shall be revoked by\nany change in the circumstances, condition or marital status of the testator;\nsubject, however, to the provisions of \xc2\xa7 60\xe2\x80\x93501.\nIn determining whether \xc2\xa7 60\xe2\x80\x93407 applies to the Taylor will, we believe a brief recount and\nunderstanding of the history relevant to the doctrine of implied revocation is important. At common\nlaw, a woman\xe2\x80\x99s will was revoked by her subsequent marriage, but a man\xe2\x80\x99s will was not, at least,\nunless there was both a marriage and birth of issue. Besides having been altered by the Wills Act,\n1837, these two rules have been treated differently in American jurisdictions. T. Atkinson, Law of\nWills \xc2\xa7 85 (2d ed. 1953); see also 2 W. Bowe & D. Parker, Page on Wills \xc2\xa7\xc2\xa7 21.89\xe2\x80\x9421.91 (3rd ed. 1960).\nProfessor Atkinson, in his treatise on wills, notes a legislative tendency to depart from the old rules.\nHe further observes that a considerable number of jurisdictions, by statute, have provided a man\xe2\x80\x99s\nmarriage revokes his will, absolutely, or as to the spouse, unless the will in some way provides to the\ncontrary. Atkinson, supra.\nSimilarly, the law pertaining to divorce and how it impliedly affects a testator\xe2\x80\x99s will has experienced\nchange by our state courts and legislatures. In the absence of statute, it is generally agreed in this\ncountry that a divorce, unaccompanied by a property settlement, does not revoke the testator\xe2\x80\x99s will\nnor the legacy in the divorced spouse\xe2\x80\x99s favor. However, when such a settlement exists and the\njurisdiction recognizes generally the doctrine of revocation by operation of law, it is usually held that\nthere is a revocation in favor of the divorced spouse. Atkinson, supra; accord Mosely v. Mosely, 217 Ark.\n536, 231 S.W.2d 99 (1950)(discussed statutory treatment and applied rule there was no revocation by\noperation of law after determining \xc2\xa7 60\xe2\x80\x93407 had not yet taken effect and was, therefore, inapplicable\nto the situation then before the court). Here, again, legislative change has occurred in recent years.\nProfessor Atkinson recognized in his work that, in an increasing number of states, there is legislation\nproviding that subsequent divorce revokes provisions in favor of the spouse. Atkinson, supra, citing\nMosely, supra. One authority explains this new perspective or trend as follows:\nDivorce was so rare before modern legislation that it may well be treated as a\nnew case, fairly involving the question of the application of the existing\nprinciples of common law and ecclesiastical law to a situation which could rarely,\nif ever, be presented under the old law for specific adjudication. It seems likely\nthat the courts would treat divorce as a revocation if they felt that it fairly\nrepresented the intention of the average testator. The unwillingness of the courts\n520\n\n\x0cto treat this as a revocation is due in a large part to the fact that [a] testator\nfrequently intends his will to remain in effect in spite of the divorce. The dangers\nof relying on oral evidence are such that it would be unsafe to adopt a rule\nmaking the validity of the will depend upon the actual intention of the testator.\nThe courts are thus driven to a rule which represents the probable intention of\nthe average testator. It seems very doubtful whether the probable intention of the average\ntestator that a prior will should not remain in force under such circumstances is so clear as to\njustify the courts in adding this as a new class of revocation by operation of law.\nW. Bowe & D. Parker, Page on Wills \xc2\xa7 21\xe2\x80\x93101 at 523 (3rd ed. 1960) (emphasis supplied).\nIn 1949, our General Assembly enacted \xc2\xa7 60\xe2\x80\x93407 in order to avoid some of the legal uncertainties in\nprobate law that had arisen in past years when dealing with marriage and divorce issues and the\ndoctrine of implied revocation. See Note, Wills\xe2\x80\x94Revocation Implied from Divorce of Testator, 9 Ark.L.Rev.\n182 (1955). When applying the plain language of \xc2\xa7 60\xe2\x80\x93407 to the instant case, we can only conclude\nthat after Taylor executed his will, that will was not revoked by his marriage to Darby, but his\ndivorce from her did revoke the will provisions made in her favor.\nDarby\xe2\x80\x99s view or argument in this case is inconsistent in its interpretation and application of \xc2\xa7 60\xe2\x80\x93\n407. She argues that the first sentence of that statute, pertaining to a testator\xe2\x80\x99s divorce, applies only in\ninstances when the testator made the will during his marriage but not before. On the other hand,\nDarby would apply the second sentence of \xc2\xa7 60\xe2\x80\x93407, because that provision upholds the validity and\ncontinued effectiveness of a testator\xe2\x80\x99s will even though he marries after it was executed. Cf. Sughrue v.\nBarlow, 233 Mass. 468, 124 N.E. 285 (1919)(wherein the court revoked the will provision even\nthough testator left everything to the woman he later married because the will did not show on its\nface the contemplated marriage). While Darby\xe2\x80\x99s interpretation of \xc2\xa7 60\xe2\x80\x93407 sustains the validity of\nTaylor\xe2\x80\x99s will and its provisions favoring her, that construction is a tortured and inconsistent\napplication of its plain language.\nIn sum, to adopt Darby\xe2\x80\x99s argument would require us to read language into \xc2\xa7 60\xe2\x80\x93407 that simply is\nnot there. Clearly, \xc2\xa7 60\xe2\x80\x93407 does not provide that its provision revoking a former spouse\xe2\x80\x99s bequest\nor devise upon divorce is dependent upon the testator having made his will during a marriage. To\nsupply such language, we believe, would lend uncertainty and confusion to the law, which runs\ncontrary to the very reason the General Assembly enacted this statute in the first place.\nIn re the Estate of Epperson, 284 Ark. 35, 40, 679 S.W.2d 792, 794 (1984) we examined \xc2\xa7\xc2\xa7 60\xe2\x80\x93407 and\n\xe2\x80\x93501 (Supp.1985), and in doing so, made it clear that neither of these statutes makes a distinction\nconcerning wills that predate a marriage and those made after a marriage. If such a distinction\nshould exist, it is the General Assembly\xe2\x80\x99s province to make it, not this court\xe2\x80\x99s. Accordingly, we hold\nthat \xc2\xa7 60\xe2\x80\x93407 applies in toto and that the chancellor was in error in holding otherwise.\n\n521\n\n\x0c11.6.4.1.2 Marriage\nEstate of Murrary, 193 Cal. Rptr. 355 (1983)\nWALLIN, Associate Justice.\nThe probate court awarded Paul Murray one-third of his deceased wife\xe2\x80\x99s estate under the provisions\nof Probate Code section 70. The decedent\xe2\x80\x99s sons appeal.\nSTATEMENT OF FACTS\nPaul Murray and Bonnie I. Murray were married on August 29, 1972. Their marriage produced no\nchildren. By an earlier marriage Bonnie had three sons, Robert, Gary and Russell Blackney.\nOn July 31, 1978, Bonnie signed a petition to dissolve her marriage to Paul. On the same day, she\nexecuted her last will and testament naming her three sons as sole beneficiaries of her estate.90 On\nOctober 23, 1979, the judgment of dissolution was entered.\nBonnie and Paul lived separately for a short period. However, within a year of the dissolution, they\nreconciled their differences and remarried on September 3, 1980. Three days later Bonnie died of a\nbrain tumor. Her will of July 31, 1978, was never revoked or changed.\nOn October 14, 1980 the will was admitted to probate. Paul promptly filed a petition to revoke,\nclaiming the will executed before the remarriage failed to provide for him and was, therefore,\nrevoked as to him under Probate Code section 70. He claimed one-third of Bonnie\xe2\x80\x99s estate under\nthe laws of intestate succession. (Prob. Code, \xc2\xa7 201 et seq., 221.) Relying principally on Estate of Poisl\n(1955) 44 Cal.2d 147, 280 P.2d 789, the trial court granted judgment for Paul.\nDISCUSSION\nProbate Code section 70 reflects a strong public policy against disinheritance of a surviving spouse,\nwho is not provided for in the premarital will of the testator. (Estate of Green (1981) 120 Cal.App.3d\n589, 592, 174 Cal. Rptr. 654.)\n90\n\nThe pertinent paragraphs provide as follows:\n\xe2\x80\x9cSECOND: I declare I am married to Paul Murray and there is no issue of this marriage. I declare I have three\nchildren the issue of a former marriage: Robert Hugh Blackney, Gary Douglas Blackney and David Russell Blackney.\nTHIRD: Subject to the operation and effect of the conditions hereinafter noted:\nA. I hereby give, bequeath and devise all of my estate, over which I have testamentary ownership and disposition, at\nthe time of my death, either real, personal, or mixed, of whatsoever kind of character and wheresoever situate, of\nwhich I may die possessed, or to which I may in any manner be entitled, or over which I may at the time of my death,\nhave the power of appointment, to my said children, ROBERT HUGH BLACKNEY, GARY DOUGLAS\nBLACKNEY, and DAVID RUSSELL BLACKNEY, share and share alike, provided they survive me by 120 days.\nEIGHTH: Except as otherwise provided in this Will, I have intentionally and with full knowledge, omitted to provide\nfor my heirs and I hereby generally and specifically disinherit each, any and all persons who shall contest or attack this\nwill or any portion of its provisions, and expressly revoke any share or interest heretofore given in this Will to such\ncontestants, and I further declare that if any person other than mentioned in this Will shall establish himself or herself\nto be my heir, then I give and bequeath to such person the sum of ONE DOLLAR ($1.00).\xe2\x80\x9d\n\n522\n\n\x0cSection 70 states: \xe2\x80\x9cIf a person marries after making a will, and the spouse survives the maker, the\nwill is revoked as to the spouse, unless provision has been made for the spouse by marriage contract,\nor unless the spouse is provided for in the will, or in such way mentioned therein as to show an\nintention not to make such provision; and no other evidence to rebut the presumption of revocation\ncan be received.\xe2\x80\x9d In this case, there is no evidence of a marriage contract and the will contains no\nprovision for Paul; the sole issue is the third exception\xe2\x80\x99s application.\nThe crucial inquiry in determining whether the spouse is mentioned is whether the language of the\nwill expresses an intention to specifically disinherit the surviving spouse. (Estate of Green, supra, 120\nCal. App.3d 589, 592, 174 Cal.Rptr. 654.) Bonnie\xe2\x80\x99s will left her estate to her sons and stated:\n\xe2\x80\x9cExcept as otherwise provided in this will, I have intentionally and with full knowledge, omitted to\nprovide for my heirs and I hereby generally and specifically disinherit each.\xe2\x80\x9d\nGeneral exclusionary clauses have been held insufficient to overcome statutory revocation. \xe2\x80\x9c[U]nder\nsuch language the testator contemplated only persons who at the time of execution of the will stood in\nsuch relationship to the decedent that they would then conceptually fall within the designated\ndisinherited class.\xe2\x80\x9d (Estate of Green, supra, 120 Cal.App.3d 589, 592-593, 174 Cal.Rptr. 654, citing\nEstate of Axcelrod (1944) 23 Cal.2d 761, 767, 147 P.2d 1, emphasis added.) We find this rule\napplicable to the present case.\nThe exclusionary clause in Bonnie\xe2\x80\x99s will did not intentionally omit a future heir who becomes so by\nmarriage. (Estate of Duke (1953) 41 Cal.2d 509, 261 P.2d 235.) Thus, as in Green, there is no explicit\nintention to omit Paul as a member of a designated disinherited class.\nBonnie\xe2\x80\x99s sons next contend Paul is sufficiently mentioned in the will in paragraph SECOND to\nshow her intent not to provide for him. The Supreme Court in Estate of Poisl, supra, 44 Cal.2d 147,\n280 P.2d 789 noted that a will must show a contemplation of a future marriage whether providing\nfor or disinheriting an after-acquired spouse. (See also Estate of Paul (1972) 29 Cal.App.3d 690, 695,\n105 Cal.Rptr. 742.) Thus, merely naming Paul with no indication he might become a future spouse is\nnot enough to prevent revocation. \xe2\x80\x9cThat indication must appear on the face of the will, and extrinsic\nevidence is not admissible to show the testator\xe2\x80\x99s intention, at least unless there is some ambiguity.\xe2\x80\x9d\n(Estate of Poisl, supra, 44 Cal.2d 147, 150, 280 P.2d 789.) Bonnie\xe2\x80\x99s mention of Paul in the clause\ndenoting her issue and marital status is not ambiguous with regard to any indication of whether Paul\nis a prospective spouse. \xe2\x80\x9c[I]t is merely \xe2\x80\x98noncommittal\xe2\x80\x99 as were the words \xe2\x80\x98heirs at law\xe2\x80\x99 in the Duke\ncase.\xe2\x80\x9d (Ibid.)\nEstate of Paul supra, 29 Cal.App.3d 690, 695, 105 Cal.Rptr. 742 concerned a will naming P. as\ntestator\xe2\x80\x99s wife and leaving one-half his estate to his son and daughter by a previous marriage. P. was\nnot then his wife though they married a mere seven days later. In revoking the will under the third\nexception to section 70, the court stated: \xe2\x80\x9cTo be applicable, i.e. to prevent revocation as to the\nspouse, the spouse must not only be mentioned in the will, but the \xe2\x80\x98mentioning\xe2\x80\x99 must be with a\nspecific intent, the intention not to provide for her. It is clear that the first of these elements is\npresent\xe2\x80\x94the spouse was \xe2\x80\x98mentioned.\xe2\x80\x99 Our decision therefore must rest on the question of the\ntestator\xe2\x80\x99s intent, the second element; it must be ascertained from the will itself.\xe2\x80\x9d (Id., at p. 695, 105\nCal.Rptr. 742.)\nThe will in Paul was ordered revoked even though P. was mentioned as a wife and there was a\n523\n\n\x0creasonable inference the will was executed in contemplation of marriage. Further, she was named\nelsewhere as an alternate executor which the court also found insufficient to prevent revocation.\nAlthough we have not been cited, nor can we find, a California case dealing specifically with the fact\nsituation before us, a distillation of the authorities provides (1) a strong public policy underlying\nsection 70 that looks with \xe2\x80\x9cdisfavor toward a testator\xe2\x80\x99s failure to provide for a surviving spouse.\xe2\x80\x9d\n(Estate of Duke, supra, 41 Cal.2d 509, 512, 261 P.2d 235; and, (2) revocation by marriage is a\npresumption which can be rebutted only by a clear manifestation of intent on the face of the will. (Estate of\nPaul, supra, 29 Cal.App.3d 690, 696-697, 105 Cal.Rptr. 742; Estate of Poisl, supra, 44 Cal.2d 147, 150\n280 P.2d 7898; Estate of Green, supra, 120 Cal.App.3d 589, 593, 174 Cal.Rptr. 654.)\nBonnie, in executing her will on the same day she filed for dissolution, may well have intended not\nto provide for Paul, as the situation then presented itself. However, she did not specifically disinherit any\nfuture marriage partner. We find it difficult to believe that a future partner, other than Paul, could\nrevoke the will as to himself, merely as an after-acquired spouse, yet that option is not available to\nPaul when he remarries the same spouse.\nRemarriage to a former spouse may occur rarely. However the purpose of the statute (to prevent\nunintentional disinheritance of a surviving spouse) should apply equally to wills executed prior to a\nremarriage.\nProbate Code section 70 legislates the natural assumption that a decedent does not intend to\ndisinherit an after-acquired spouse. We perceive no reason for a different rule merely because the\nafter-acquired is also a former spouse. Remarriage resumed a relationship interrupted by a brief\nperiod of unhappiness leading to dissolution of the first marriage. The pretermitted heir statute\napplies to all marriages unless one of its specific exceptions is fully satisfied.\nThe judgment is affirmed.\n11.6.4.2 Children\n\n11.6.4.2.1 Omitted Children\nIn the case of a child born after the execution of the will, the testator must make it clear that\nhe or she intended to disinherit the child. If the omitted child is not disinherited, the statutes in the\nmajority of jurisdictions follow the Uniform Probate Code (UPC) approach and provide for the\nchild to receive a portion of the testator\xe2\x80\x99s estate. This is similar to the negative disinheritance rule.\nUnder that rule, the disinherited child can take his or her intestate share of the estate unless the\ntestator makes affirmative dispositions of all of his or her property. This rule has been modified by\nthe UPC.\n\nUPC \xc2\xa7 2-302. Omitted Children\n(a) Except as provided in subsection (b), if a testator fails to provide in his [or her] will\nfor any of his [or her] children born or adopted after the execution of the will, the omitted\nafter-born of after-adopted child receives a share in the estate as follows:\n524\n\n\x0c(1) If the testator had no child living when he [or she] executed the will, an omitted afterborn or after adopted child receives a share in the estate equal in value to that which the\nchild would have received had the testator died intestate, unless the will devised all or\nsubstantially all of the estate to the other parent of the omitted child and that other parent\nsurvives the testator and is entitled to take under the will.\n(2) If the testator had one or more children living when he [or she] executed the will, and the\nwill devised property or an interest in property to one or more of the then living children, an\nomitted after-born or after-adopted child is entitled to share in the testator\xe2\x80\x99s estate as\nfollows:\n(i) The portion of the testator\xe2\x80\x99s estate in which the omitted after-born or after adopted\nchild is entitled to share is limited to devises made to the testator\xe2\x80\x99s then living children under\nthe will.\n(ii) The omitted after-born or after-adopted child is entitled to receive the share of the\ntestator\xe2\x80\x99s estate, as limited in subparagraph (i), that the child would have received had the\ntestator included all omitted after-born and after-adopted children with the children to\nwhom devises were made under the will and had given an equal share of the estate to each\nchild.\n(iii)To the extent feasible, the interest granted an omitted after-born or after adopted child\nunder this section must be of the same character, whether equitable or legal, present or\nfuture, as that devised to the testator\xe2\x80\x99s then-living children under the will.\n(iv) In satisfying a share provided by this paragraph, devises to the testator\xe2\x80\x99s children who\nwere living when the will was executed abate ratably. In abating the devises of the then-living\nchildren, the court shall preserve to the maximum extent possible the character of the\ntestamentary plan adopted by the testator.\n(b) Neither subsection (a)(1) nor subsection (a)(2) applies if:\n(1) it appears from the will that the omission was intentional; or\n(2) the testator provided for the omitted after-born or after-adopted child by transfer\noutside the will and the intent that the transfer be in lieu of a testamentary provision is\nshown by the testator\xe2\x80\x99s statements or is reasonably inferred from the amount of the\ntransfer or other evidence.\n(c) If at the time of execution of the will, the testator fails to provide in his [or her] will for a\nliving child solely because he [or she] believes the child to be dead, the child is entitled to\nshare in the estate as if the child were an omitted after-born or after-adopted child.\nProblems\n1. In 1990, Gloria married Michael. Gloria gave birth to the couple\xe2\x80\x99s first child, Patrick, in 1991.\nThe couple\xe2\x80\x99s second child, Tresmal, was born in 1993. In 1997, Gloria executed a will leaving her\n525\n\n\x0cestate to her two children, Patrick and Tresmal. The estate was to be split evenly between the two\nboys. Gloria and Michael divorced in 2000. In 2001, Gloria married Alvin. Gloria gave birth to\nAlonzo in 2002. In 2003, Gloria was killed in an automobile accident. Gloria\xe2\x80\x99s will was probated in\n1994. In a UPC jurisdiction, what, if anything, is Alonzo entitled to inherit from Gloria\xe2\x80\x99s estate?\n2. In 2003, Sandra married Henry. In 2010, Henry executed a will leaving his estate to Sandra. Two\nyears later, Sandra and Henry adopted twins, Cody and Catherine. Henry died of lung cancer in\n2013. In a UPC jurisdiction, what, if anything, will Cody and Catherine inherit from Henry\xe2\x80\x99s estate?\n3. Geneva was a divorced woman who had one biological child, Elliot, and one adopted child,\nRobert. Geneva wanted her oldest son, Robert, to marry Kendra, her best friend\xe2\x80\x99s daughter. Robert\nrefused, so Geneva told him that he would not receive any of her multi-million dollar estate. Geneva\nexecuted a will stating, \xe2\x80\x9cI want my son, Elliot, to receive 100% of my estate. No one else, including\nRobert, is entitled to any of my estate.\xe2\x80\x9d After she executed the will, Geneva had an affair with\nJeremy. As a result of the affair, Geneva gave birth to Joneka. A few months after Joneka\xe2\x80\x99s birth,\nGeneva was diagnosed with breast cancer. Geneva\xe2\x80\x99s lawyer asked her if she wanted to modify her\nwill to provide for Joneka. In response, Geneva stated, \xe2\x80\x9cJoneka\xe2\x80\x99s father has enough money to take\ncare of her. Elliot needs all of the help he can get.\xe2\x80\x9d Geneva died without changing her will. In a\nUPC jurisdiction, what, if anything, will Joneka inherit from Geneva\xe2\x80\x99s estate?\n4. Claudia was the mother of five children, Rebecca, Keisha, Rashad, Ozark and Benjamin. Four of\nClaudia\xe2\x80\x99s children went to college and became productive members of society. However, Benjamin\nwas a permanent student. He never worked. He just kept acquiring college degrees. Claudia won\nfifty million dollars in the lottery. Claudia opened up a joint bank account with Benjamin. She placed\nfive hundred thousand dollars in the bank account. Claudia sent Benjamin a letter informing him of\nthe bank account. The letter contained the following statement: \xe2\x80\x9cYou need to grow up and get a job.\nThe money in this bank account is all I ever plan to give you. When it runs out, you should get a job\nor go hungry.\xe2\x80\x9d Later, Claudia executed a will leaving her estate in equal shares to Rebecca, Keisha,\nRashad and Ozark. What, if anything, will Benjamin inherit from Claudia\xe2\x80\x99s estate?\n5. Fatima executed a will leaving her entire estate to charity. After the execution of the will, Fatima\nmarried Ali and gave birth to Urooj. Fatima and Ali established a trust for the benefit of Urooj.\nFatima and Ali died in a house fire. What, if anything, will Urooj inherit from Fatima\xe2\x80\x99s estate?\n\n11.6.4.2.2 After Born Children\nHedlund et al. v. Miner et. al., 69 N.E.2d 862 (Ill. 1946)\nTHOMPSON, Justice.\nThis case comes to us on direct appeal from a partition decree entered in the circuit court of Ford\ncounty. The complaint for partition was filed by Carl A. Hedlund and Allen G. Miner, each of\nwhom is the owner of an undivided one-third of the premises sought to be partitioned. The other\none-third interest was owned by Leslie E. Miner, who died seized thereof on February 22, 1943,\nleaving a widow, Lois Sweet Miner, and one child, Sandra Louise Miner, aged 1 year, 3 months and\n19 days, at the time of her father\xe2\x80\x99s death.\n526\n\n\x0cIt appears from the record that on October 11, 1941, Leslie E. Miner, who then had no children, but\nwas shortly expecting the birth of a child, made and executed a last will and testament, which,\nomitting the formal parts, is as follows: \xe2\x80\x98I devise and bequeath all the estate and effects whatsoever\nand wheresoever, both real and personal, to which I may be entitled, or which I may have power to\ndispose of at my decease, unto my dear wife, Lois Sweet Miner, absolutely; and I appoint her sole\nexecutrix of this my will, and I direct that she be exempt from giving any surety or sureties on her\nofficial bond as executrix.\xe2\x80\x99 Afterward, on November 3, 1941, the appellee, Sandra Louise, was born,\nand approximately two weeks later Miner delivered the executed will to his wife. Thereafter he died\ntestate, leaving his will as originally made, and leaving his said widow and child as his only heirs-atlaw.\nThe will was admitted to probate and letters testamentary were issued to the widow, as executrix, by\nthe probate court of Cook county, on April 22, 1943. At the hearing on the petition to probate the\nwill, the child was represented by a guardian ad litem, appointed by the court. The estate of the\ntestator, in addition to his interest in the real estate here sought to be partitioned, consisted of\napproximately $18,000 in cash and other personal property of considerable value. The widow filed\nher final account and report as executrix in the probate court of Cook county on February 3, 1944,\nshowing payment in full of all claims and costs of administration and distribution of all the\nremainder of the property to herself, individually, as sole beneficiary and legatee, and an order was\nentered by the probate court on the same day approving the final report of distribution, declaring\nthe estate settled and discharging the executrix. This order was entered without notice to the child,\nSandra Louise, and she was not represented by guardian ad litem nor in any other manner at the\nhearing on the final report. No appeal or other proceedings for review were taken concerning the\naction of the probate court.\nThe complaint for partition, to which both the mother, Lois, and the child, Sandra Louise, were\nmade parties defendant, set forth the death and heirship of Leslie E. Miner. It also set forth the\nexecution by him of his last will and testament, the subsequent birth of his daughter, Sandra Louise,\ntwenty-two days later, the admission of the will to probate in Cook county, the issuing of letters\ntestamentary to the widow, as executrix, and the final settlement of the estate in that court on a\nreport of distribution of all the property of the estate to the widow as sole legatee and beneficiary.\nThe complaint then alleged that because of the birth of the daughter after the execution of the will, a\nconstruction of the will was necessary to determine whether said child possessed any rights in the\nrealty under section 48 of the Probate Act. The complaint concluded with a prayer that the court\nconstrue the will of Leslie E. Miner, deceased, determine the rights of the parties in the real estate,\nand enter a decree for partition of said lands based on such determination. Appellant answered,\ndenying that the daughter, Sandra Louise Miner, was entitled to any interest in the real estate, and\nclaiming that the said Sandra Louise Miner was disinherited by the will of her father, Leslie E. Miner.\nThe guardian ad litem appointed for Sandra Louise filed an answer and counterclaim by which it was\nalleged that Sandra Louise, because of her birth after the execution of the will of Leslie E. Miner,\nand because it did not appear by said will that it was the intention of the testator to disinherit her,\nwas entitled to receive two-thirds of the interest which her father had in the real estate at the time of\nhis death. The counterclaim further alleged that the child was entitled to a two-thirds interest in the\nnet personal estate of Leslie E. Miner; that Lois Sweet Miner was wrongfully withholding the said\ntwo-thirds share, and that the said Lois Sweet Miner holds, on a constructive trust for the benefit of\nthe minor, two thirds of the net personal estate.\n527\n\n\x0cThe matter was referred to a master in chancery, who, after hearings, reported that the plaintiffs\nwere entitled to a partition; that the child, Sandra Louise, was entitled to a two ninths interest in the\nreal estate and a two-thirds interest in the net personal estate of Leslie E. Miner; that Lois Sweet\nMiner, the mother, holds in constructive trust, for the benefit of Sandra Louise Miner, the portion\nof the real estate involved and also two thirds of the personal property of Leslie E. Miner; that a\ndecree of partition should be entered in accordance with the interests of the parties therein and that\nappellant should be directed to pay and deliver to Sandra Louise Miner two thirds of the money and\npersonal property distributed under the order of the probate court. In arriving at this conclusion, the\nmaster held that there was no intention expressed in the will to disinherit Sandra Louise and that the\nprovisions of section 48 of the Probate Act apply to give to the child that portion to which she\nwould be entitled had there been no will. Objections were filed by the widow to the master\xe2\x80\x99s report,\nwhich were overruled by the master. The circuit court, after a hearing on the master\xe2\x80\x99s report and the\nobjections thereto, which were ordered to stand as exceptions, approved the report and entered a\ndecree in accordance with its conclusions.\nTo obtain a reversal of the decree, appellant makes the contention, among others, that the child,\nSandra Louise Miner, (hereinafter referred to as the appellee,) was intentionally disinherited by the\nwill of her father and therefore section 48 of the Probate Act has no application and does not\noperate to entitle the child to any portion of the father\xe2\x80\x99s estate.\nSection 48 of the Probate Act reads as follows: \xe2\x80\x98Unless provision is made in the will for a child of\nthe testator born after the will is made or unless it appears by the will that it was the intention of the\ntestator to disinherit the child, the child is entitled to receive the portion of the estate to which he\nwould be entitled if the testator had died intestate, and all devises and legacies shall be abated\nproportionately therefor.\xe2\x80\x99 Ill.Rev.Stat.1945, chap. 3, par. 199. This section, which was enacted as a\npart of the Probate Act of 1939, is a restatement, with verbal changes only, of that part of section 10\nof the Descent Act concerning the effect upon a parent\xe2\x80\x99s will of the subsequent birth of a child,\nwhich, prior to its repeal by said Probate Act, had been in effect for many years.\nThis provision of section 10 of the former statute was as follows: \xe2\x80\x98If, after making a last will and\ntestament, a child shall be born to any testator, and no provision be made in such will for such child,\nthe will shall not on that account be revoked; but unless it shall appear by such will that it was the\nintention of the testator to disinherit such child, the devises and legacies by such will granted and\ngiven, shall be abated in equal proportions to raise a portion for such child equal to that which such\nchild would have been entitled to receive out of the estate of such testator if he had died intestate.\xe2\x80\x99\nIll.Rev.Stat.1937, chap.39, par. 10.\nUnder the express provisions of both section 48 of the present Probate Act and section 10 of the\nformer Descent Act, a will, making no provision for an after-born child, is not effective as regards\nsuch child unless it appears by the will that it was the intention of the testator to disinherit the child.\nIt is evident, from the wording of the statute in both instances, that the controlling factor in\ndetermining its applicability is the testamentary intent of the parent, and that in order to remove the\nwill from the operation of the statute, the intention to disinherit must appear by the will. The\nrequirement that the testator\xe2\x80\x99s intention to disinherit any after-born child or children must appear by\nthe will is no different, however, from the requirement necessary to render effective any other\nintention of the testator, since it is well established that in all cases the intention of the testator\nwhich the courts will carry into effect is that expressed by the language of the will when interpreted\nin view of the facts and circumstances surrounding the testator at the time of its execution.\n528\n\n\x0cThe object of the statute is not to control the intention of the parent or to restrict his absolute\npower to disinherit any child, whether living or subsequently born, but only to provide for such\nafter-born children as were neither provided for nor disinherited in the will. The rule laid down in\nthe cases involving the application of the statute is, that although the testator\xe2\x80\x99s intention to disinherit\nafter-born children must be drawn from the will itself, it is not essential that such intention be\ndeclared in express terms, but the same may be drawn from the language of the will when construed\nin connection with the proved facts and circumstances surrounding the testator when the will was\nmade, evidence of which may be received, not for the purpose of changing the language of the will,\nbut to explain its meaning when there is an ambiguity in the will with reference to disinheriting afterborn children. Hawkins v. McKee, 321 Ill. 198, 151 N.E. 577.\nThe question then to be considered in this case is whether it appears by the will of Leslie E. Miner\nthat it was his intention to disinherit his daughter, Sandra Louise Miner, whose birth was expected to\nand did occur within a short time after the execution of the will. Ordinarily, a will purporting to\ndevise and bequeath all the property of a testator to a beneficiary therein named is equivalent to the\nexpression of an intention to disinherit all other persons, and it is unnecessary to construe the will to\nascertain the testator\xe2\x80\x99s intentions. When, however, such will is taken in connection with the\nprovisions of section 48 of the Probate Act, a latent ambiguity is raised and it becomes necessary to\nconstrue the will in order to ascertain if it was the intention of the testator to therein disinherit his\nafter-born child or children.\nThis court, in a number of cases involving the application of the statute, has had occasion to\nconstrue wills, including those where a devise simpliciter appears in the will as well as other forms of\nwills, for the purpose of ascertaining from such wills the intention of the testator as to disinheriting\nafter-born children. Upon an examination of these cases we find that where a testator, having a\nliving child or children and another child soon to be born, executed a will, giving to each of his\nliving children a share in his estate, but making no provision for, or mention of any unborn child or\nchildren and using no express words of disinheritance therein, this court has construed the will in\nsuch instances as not disclosing an intention of the testator to disinherit the after-born child. Lurie v.\nRadnitzer, 166 Ill. 609, 46 N.E. 1116, Ward v. Ward, 12.0 Ill. 111, 11 N.E. 336.\nThe same construction was also adopted where a will making provision for the testator\xe2\x80\x99s living\nchildren neither provided for nor expressly disinherited after-born children, and another child of the\ntestator was born more than a year and a half subsequent to the execution of the will. Salem National\nBank v. White, 159 Ill. 136, 42 N.E. 312. In another instance, where a testator, having two children,\naged respectively four and two years, executed his will, giving all his property to his w
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