Law of Wills

Browne C. Lewis
Leon and Gloria Plevin Professor of Law and
Director, Center for Health Law & Policy
Cleveland-Marshall College of Law

CALI eLangdell Press 2016

About the Author
Professor Lewis is the Leon & Gloria Plevin Professor of Law and the Director of the Center of
Health 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
Law, a visiting professor at the University of Pittsburgh School of Law, a summer visiting professor
at Seattle University School of Law and a legal writing instructor at Hamline University School of
Law. Professor Lewis has also taught in the American Bar Association CLEO Summer Institute.
Professor Lewis has been a visiting scholar at the Brocher Foundation in Geneva, Switzerland, the
Hasting Center, and Yale University’s Interdisciplinary Center for Bioethics. As a Senior Fulbright
Specialist, Professor Lewis conducted research at Hebrew University and Haifa University in Israel.
Professor Lewis was also a Core Fulbright Scholar at King’s College in London, and a Robert Wood
Johnson Public Health Law Scholar in Residence at the Cleveland Public Health Department.
Professor Lewis writes in the areas of estate planning, probate and reproductive law. Her article on
human oocyte cryopreservation was recently published in the Tennessee Law Review. In 2012, New
York University Press published Professor Lewis’ book on paternity and artificial insemination.
Professor Lewis has recently completed a book on posthumous reproduction for Routledge Press.

i

Notices
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iii

Table of Contents
Law of Wills .......................................................................................................... ii
About the Author ................................................................................................... i
Notices.................................................................................................................. ii
About CALI eLangdell Press .............................................................................. iii
Preface ................................................................................................................ xx
Part I – The Intestacy System ............................................................................... 1
Chapter One: Ethically Representing the Elderly Client ..................................... 1
1.1

Introduction ................................................................................................................. 1

1.2

Client Identification .................................................................................................... 1

1.3

Conflict of Interest ....................................................................................................... 2
Chase v. Bowen, 771 So.2d 1181 (Fla. Dist. Ct. App. 2000) ............................................................. 2

1.4

Confidentiality ............................................................................................................. 3
A. v. B., 726 A2d 924 (N.J. 1999) .................................................................................................... 3
Notes, Problems, and Questions .................................................................................... 9
American Bar Association Model Rule 1.6 Confidentiality of Information............................................11

1.5

Competency ............................................................................................................... 11
American Bar Association Model Rule 1.14 Client With Diminished Capacity ...................................12
In re Disciplinary Action Against Kuhn, 785 N.W.2d 195 (N.D. 2010) .........................................12
Notes, Problems, and Questions .................................................................................. 18
Estate of Schneider v. Finmann, 933 N.E.2d 718 (N.Y. 2010) ........................................................19

1.5.2

The Intended Beneficiary................................................................................... 20

Sisson v. Jankowski, 809 A.2d 1265 (N.H. 2002) ...........................................................................20
Ethics Exercise One ..................................................................................................... 25
Ethics Exercise Two ..................................................................................................... 25

Chapter Two: Intestacy System (Basic Overview) ............................................. 27
2.1

Introduction ............................................................................................................... 27

2.2

Distribution Under the Intestacy System.................................................................. 27

2.2.1
2.3

Uniform Probate Code § 2-103. Share of Heirs other than Surviving Spouse ... 28

Descendants .............................................................................................................. 28
iv

2.3.1

Illustration One .................................................................................................. 28

2.3.2

Illustration Two .................................................................................................. 29

2.3.3

Two Important Rules to Remember .................................................................. 29

2.4

The Meaning of Representation ............................................................................... 30

2.4.1

English per stirpes .............................................................................................. 30

2.4.2

Modern per stirpes ............................................................................................. 31

Notes and Questions .................................................................................................... 32
2.4.3

A Case Illustration .............................................................................................. 32

In re Estate of Evans, 827 N.W.2d 313 (Neb. App. 2013) ..............................................................32
Notes, Problems, and Questions .................................................................................. 38
2.4.4

Per capita at each generation (1990 Uniform Probate Code) ............................ 38

UPC § 2-106(b) .................................................................................................................................39
2.4.5

Comparison ........................................................................................................ 40

Problems ....................................................................................................................... 41
2.5

Ancestors, Collaterals and Others. ............................................................................ 42

2.5.1

Parents ................................................................................................................ 42

Uniform Probate Code § 2-114. Parent and Child Relationship. .........................................................42
In re Estate of Fleming, 991 P.2d 128 (Wash. Ct. App. 2000) (Voluntary Termination of Parental
Rights).................................................................................................................................................42
New Jersey Div. of Youth and Family Services v. M.W., 942 A.2d 1 (N.J. App. Div. 2007)
(Involuntary Termination of Parental Rights) .......................................................................................45
Notes, Problems, and Questions .................................................................................. 57
2.5.2

Other Ancestors and Collaterals ......................................................................... 58

In re Wolbert’s Estate, 135 A.2d 533 (N.J. Super. Ct. App. Div. 1957) .....................................59
2.5.3

Laughing Heirs .................................................................................................. 61

2.5.4

Escheat ............................................................................................................... 61

Uniform Probate Code § 2-105 No Taker. .........................................................................................61
2.5.6

Advancements .................................................................................................... 61

Tankesley v. Thompson, 469 S.E.2d 853 (Ga. App. Ct. 1996) ........................................................62
Uniform Probate Code § 2-109 ...........................................................................................................63
Va. Code Ann. § 64.206. Advancements brought into hotchpot ..........................................................63
2.5.7

Computation of Shares-Hotchpot Method. ....................................................... 63
v

Problems and Questions ............................................................................................... 64

Chapter Three: Intestacy System (Surviving Spouse) ........................................ 65
3.1

Introduction ............................................................................................................... 65
Uniform Probate Code § 2-102. Share of Spouse. ................................................................................66
Problems ....................................................................................................................... 66

3.2

Definition of Spouse .................................................................................................. 67

3.2.1

Putative Spouse .................................................................................................. 67

M.S.A. § 518.055 Putative Spouse (Minnesota).................................................................................67
Estate of Leslie, 689 P.2d 133 (Cal. 1984) .......................................................................................68
Notes, Problems, and Questions .................................................................................. 77
Estate of Hafner, 184 Cal. App. 3d 1371 (Cal. App. Ct. 1986) ......................................................78
3.2.2

Common Law Spouse......................................................................................... 89

In re Estate of Duval, 777 N.W.2d 380 (S.D. 2010) .......................................................................89
Notes, Problems, and Questions .................................................................................. 94
3.2.3

Same-Sex Spouse ................................................................................................ 95

3.2.4

Other Issues Impacting the Status of Surviving Spouse .................................... 95

3.2.4.1

Legal Separation ............................................................................................. 96

Estate of Lahey, 76 Cal App. 4th 1056, 91 Cal. Rptr. 30 (Ct. App. Cal. 1st Dist. Div. 5, 1999) ....96
Notes, Problems, and Questions .................................................................................. 98
3.2.4.2

Abandonment.................................................................................................. 98

Estate of Joyner v. Joyner, 753 S.E.2d 192 (Ct. App. N.C. 2014) (Constructive Abandonment) .......98
Notes, Problems, and Questions ................................................................................ 100
3.3

What does it mean to survive? ..................................................................................101

3.3.1

Common Law ................................................................................................... 102

3.3.2

Original Uniform Simultaneous Death Act ..................................................... 102

Matter of Bausch’s Estate, 100 Misc.2d 817 (N.Y. 1979) .............................................................. 102
Problems ..................................................................................................................... 103
3.3.3

UPC and Modern USDA (120 Hour Rule) ....................................................... 104

Uniform Probate Act § 2-104. Requirement that Heir Survive Decedent for 120 Hours. .................. 104
Stephens v. Beard, 428 S.W.3d 385 (Ct. App. Tex. 2014) ............................................................ 104
3.3.4

Brain Death vs. Hearth Death.......................................................................... 107
vi

In re Haymer, 450 N.E.2d 940 (Ill. App. 3d 1983) ...................................................................... 107
3.4

Other Surviving Spousal Resources ......................................................................... 111

3.4.1.

Social Security and Retirement Benefits ...........................................................112

3.4.2.

Homestead, Personal Property Set-Aside, and Family Allowance ...................112

3.4.3

Dower ................................................................................................................113

Ohio Revised Code Ann. 2103.02 ................................................................................................... 113
Armstrong v. Armstrong, 715 N.E.2d 207 (Ohio App. Ct. 1998)................................................. 113
3.4.4

Fractionalize Forced Share ................................................................................115

In re Estate of Soard, 173 S.W.3d 22 (Tenn. App. Ct. 2005) ........................................................ 115

Chapter Four: The Intestacy System (Marital and Adopted Children) ........... 128
4.1

Introduction ............................................................................................................. 128

4.2

Marital Children ...................................................................................................... 128

4.2.1

Posthumously Born Children ........................................................................... 128

Morrow v. Scott, 7 Ga. 535 (Ga. 1849) .......................................................................................... 128
Uniform Probate Code § 2-108 Afterborn Heirs .............................................................................. 129
Class Discussion Tool One ......................................................................................... 129
4.3

Adopted Children .................................................................................................... 130

4.3.1

Legal Adoption ..................................................................................................131

McKinney’s D.R.L. § 117(b) Right to inherit from and through the biological parents eliminated after
adoption ............................................................................................................................................ 131
Aldridge v. MIMS, 884 P.2d 817 (N.M. 1994) ............................................................................ 131
Ellis v. West, 971 So. 2d 20 (Ala. 2007) ....................................................................................... 134
Right to inherit from biological parent retained after adoption .................................... 136
In re Estate of Moore, 25 P3d 305 (Oklahoma 2001)..................................................................... 136
In re Estate of Wulf, 167 N.W.2d 181 (Neb. 1969) ...................................................................... 138
The right to inherit from two lines ................................................................................. 140
Uniform Probate Code § 2-113 ........................................................................................................ 140
Jenkins v. Jenkins, 990 So. 2d 807 (Miss. App. Ct. 2008) ............................................................. 141
Notes and Questions .................................................................................................. 145
4.3.2

Equitable Adoption .......................................................................................... 145

Right to inherit from the intended adoptive parents ..................................................... 145
O’Neal vs. Wilkes, 439 S.E.2d 490 (Ga. 1994) ............................................................................ 146
vii

Welch vs. Wilson, 516 S.E.2d 35 (W. Va. 1999) .......................................................................... 149
Notes and Questions .................................................................................................. 152
Right to inherit from biological parents ......................................................................... 153
Gardner v. Hancock, 924 S.W.2d 857 (Mo. 1996) ........................................................................ 153
Notes and Questions .................................................................................................. 155
The right to inherit through the intended adoptive parents .......................................... 156
Bd. of Education of Montgomery County v. Browning, 635 A.2d 373 (Md. 1994) .......................... 156
Notes and Problems.................................................................................................... 164
4.3.2

Adult Adoption ................................................................................................. 166

The right to inherit through the adoptive parents ......................................................... 166
In the Matter of the Petition of P.A.L., 5 P.3d 390 (Colo. 2000) .................................................... 166
Tinney v. Tinney, 799 A.2d 235 (R.I. 2002) .................................................................................. 168
Notes and Questions .................................................................................................. 170
Right to inherit through adoptive parents.......................................................................171
In re Estate of Brittin, 664 N.E.2d 687 (Ill. 1996) ........................................................................ 171
In re Ellison Grandchildren Trust, 261 S.W.3d 111 (Tex. 2008)................................................... 175
4.3.3

Stepparent Adoption ......................................................................................... 187

Uniform Probate Code § 2-114 Parent and Child Relationship ........................................................ 187
Uniform Adoption Act § 4-103 (1994) ........................................................................................... 188
Impact on the right to inherit from biological parent(s) ............................................... 188
Estate of Jacobs, 719 A.2d 523 (Me. 1998).................................................................................... 188
Impact on the right to inherit through biological parent(s) .......................................... 190
In re Estate of McQuesten, 578 A.2d 335 (N.H. 1990) ................................................................ 190

Chapter Five: Intestacy (Non-Marital Children, Stepchildren and Foster
Children) ............................................................................................................ 194
5.1

Introduction ............................................................................................................. 194

5.2

Non-Marital Children .............................................................................................. 195

5.2.1

The Right to Inherit From Mothers ................................................................. 195

Levy v. Louisiana, 391 U.S. 68 (1968) .......................................................................................... 196
Notes and Questions .................................................................................................. 197
Ohio Revised Code Annotated .......................................................................................................... 198
viii

5.2.2

The Right to Inherit From Fathers .................................................................. 198

Lalli v. Lalli, 439 U.S. 259 (1978) ............................................................................................... 198
Notes and Questions .................................................................................................. 204
Phillips v. Ledford, 590 S.E.2d 280 (N.C. App. 2004) ................................................................. 205
Notes and Questions .................................................................................................. 207
Notes and Questions .................................................................................................. 208
5.2.3

Right to Inherit Through Fathers .................................................................... 209

In re Dumaine, 600 A.2d 127 (N.H. 1991) .................................................................................. 209
Notes and Questions .................................................................................................. 213
Uniform Parentage Act § 202. No Discrimination Based on Marital Status. ................................... 213
Notes and Questions .................................................................................................. 214
Sample State Statutes...................................................................................................... 215
Notes and Questions .................................................................................................. 219
5.3

Stepchildren and Foster Children ........................................................................... 219

5.3.1

Stepchildren/Foster Children are not entitled to inherit ................................. 219

Wyo. Stat. Ann. § 2-4-104 (1977) ................................................................................................. 220
5.3.2

Stepchildren/Foster Children may inherit if the necessary relationship exists
220

West’s Ann. Cal. Prob. Code § 6454 .............................................................................................. 220
Estate of Claffey, 257 Cal. Rptr. 197 (Cal. App. 3d 1989) ............................................................ 220
5.3.3

Stepchildren/Foster Children may inherit if there are no other heirs available
223

MD Code, Estates and Trusts, § 3-104 ........................................................................................... 223
Estate of Smith, 299 P.2d 550 (Wash. 1956) ................................................................................. 224
Estate of Joseph, 949 P.2d 472 (Cal. 1998) .................................................................................... 227
Notes and Questions .................................................................................................. 236

Chapter Six: Intestacy (Children of Assisted Reproductive Technology) ....... 237
6.1

Introduction ............................................................................................................. 237

6.2

Posthumously Conceived Children ......................................................................... 238

6.2.1

The Right to Inherit From Fathers .................................................................. 239

Astrue v. Capato ex. Rel. B.N.C., 132 S. Ct. 2021 (2012) ........................................................... 239
Woodward v. Commissioner of Social Sec., 760 N.E.2d 257 (Mass. 2002) ..................................... 241
ix

Notes and Questions .................................................................................................. 251
Khabbaz v. Commissioner of Social Security Administration, 930 A.2d 1180 (N.H. 2007) ........... 252
In Re Estate of Kolacy, 753 A.2d 1257 (N.J. 2000) ...................................................................... 256
Questions .................................................................................................................... 261
Finley v. Astrue, 270 S.W.3d 849 (Ark. 2008) ............................................................................. 261
Questions .................................................................................................................... 266
6.2.2

The Right to Inheritance Through Fathers ..................................................... 266

In re Martin, 841 N.Y.S.2d 207 (N.Y. Sur. Ct. 2007)................................................................. 266
Notes and Questions .................................................................................................. 270
Statutes Addressing the Inheritance Rights of Posthumously Conceived Children ..... 270
Questions .................................................................................................................... 271
Questions .................................................................................................................... 273
Problems ..................................................................................................................... 274
6.3

Children Conceived Using Artificial Insemination................................................. 275

6.4

The Paternity of the Inseminated Woman’s Husband ........................................... 275

6.4.1
6.4.1.1

Consenting Husband is the Legal Father ........................................................ 276
Written Consent ............................................................................................ 276

Lane v. Lane, 912 P.2d. 290 (N.M. 1996) .................................................................................... 276
Notes and Questions .................................................................................................. 282
6.4.1.2

Verbal Consent .............................................................................................. 282

K.S. v. G.S., 440 A.2d 64 (N.J. Super. Ct. App. Div. 1981) ....................................................... 283
6.4.1.3

Presumed Consent ........................................................................................ 286

W.W. v. W.W., 51 A.D.3d 211 (N.Y. App. Div. 2008) ............................................................. 286
Notes and Questions .................................................................................................. 290
6.4.1.4

Implied Consent ........................................................................................... 290

In re Baby Doe, 353 S.E.2d 877 (S.C. 1987) ................................................................................ 290
Notes and Questions .................................................................................................. 292
6.4.2

Nonconsenting Husband is not the Legal Father ........................................... 292

Marriage of Witbeck-Wildhagen, 667 N.E.2d 122 (Ill. App. Ct. 1996) ........................................ 292
Notes and Questions .................................................................................................. 296
6.5

The Paternity of the Sperm Donor .......................................................................... 297
x

6.5.1

The Sperm Donor is not the Legal Father ....................................................... 297

Lamaritata v. Lucas, 823 So. 2d 316 (Fla. Dist. Ct. App. 2002) ................................................. 297
Questions .................................................................................................................... 299
6.5.2

The Sperm Donor May Be the Legal Father.................................................... 299

Shultz v. Shultz, 923 A.2d 473 (Pa. Super Ct. 2007) ................................................................... 299
Sample Statutes............................................................................................................... 303
6.6

Children Conceived Through Surrogacy Arrangements......................................... 304

6.6.1
6.6.1.1

The Possibility of Inheriting From the Woman ............................................... 304
The Genetics/Blood Test ............................................................................. 304

Belsito v. Clark, et al., 644 N.E. 2d 760 (C.P. Ct. Oh. 1994) ...................................................... 304
Notes and Questions .................................................................................................. 312
6.6.1.2

The Gestational Test .................................................................................... 313

A.H.W. and P.W. v. G.H.B., 772 A.2d 948 (N.J. 2000) ........................................................... 314
Note and Questions .................................................................................................... 316
6.6.1.3

The Intent Test ............................................................................................. 317

Johnson v. Calvert, 851 P.2d. 776 (Cal. 1993) ............................................................................... 317
6.6.1.4

The Best Interests of the Child Test............................................................. 323

Johnson v. Calvert, 851 P.2d. 776 (Cal. 1993) ............................................................................... 323
Notes and Questions .................................................................................................. 324
6.6.1.5

The Totality of the Circumstances ............................................................... 324

In re C.K.G., 173 S.W. 3d 714 (Tenn. 2005) ................................................................................ 324
6.6.2

The Possibility of Inheriting Through The Woman ........................................ 337

Matter of Petition Of Successor Trustees for the Construction of three inter vivos trusts created in 1959 f/b
to the Issue of K. Doe, C. Doe, and M. , 793 N.Y.S. 2d 878 (2005).............................................. 337

Part II —The Testacy System........................................................................... 341
Chapter Seven: Testamentary Freedom ........................................................... 341
7.1

Introduction ............................................................................................................. 341

7.1.1.

The Decedent’s Right to Control the Distribution of Property ....................... 341

Hodel v. Irving, 481 U.S. 704 (1987) ............................................................................................. 341
Notes and Questions .................................................................................................. 346
Ostrander v. Preece, 196 N.E. 670 (Ohio 1935) ............................................................................. 346
xi

Notes, Problems, and Questions ................................................................................ 348
7.2

The Decedent’s Right to Place Restrictions on the Right to Inherit ..................... 349

7.2.1

Some Restrictions are Unreasonable ............................................................... 349

Maddox & al. v. Maddox’s adm’r & als., 11 Grat., Va. 804 (Va. 1854) ................................... 349
7.2.2

Some Restrictions are Reasonable ................................................................... 355

Shapira v. Union National Bank et. al., 315 N.E.2d 825 (Ohio 1974)......................................... 355
In re Estate of Feinberg, 919 N.E.2d 888 (Ill. 2009) ..................................................................... 359
Notes, Problems, and Questions ................................................................................ 372

Chapter Eight: Disinheritance .......................................................................... 374
8.1

Introduction ............................................................................................................. 374

8.2

Exceptions ............................................................................................................... 374

8.2.1

Forced Heirs ..................................................................................................... 374

LSA. C.C. Art. 1493. Forced heirs ................................................................................................ 374
8.3

Negative Disinheritance.......................................................................................... 374

8.3.1

Example............................................................................................................ 375

8.3.2

UPC § 2-101 Intestate Estate ............................................................................ 375

In re Estate of Melton, 272 P.3d 668 (2012) .................................................................................. 375
8.4

Expressed Disinheritance by the Testator .............................................................. 383
Estate of D.M.R., 735 N.E.2d 359 (Mass. 2000)......................................................................... 384
Notes and Questions .................................................................................................. 388

8.5

Disinheritance by Operation of Law (Slayer Rule) ................................................ 388
West’s Alaska Statutes Annotated § 13.12.803. Effect of homicide on intestate succession, wills, trusts,
joint assets, life insurance, and beneficiary designations........................................................................ 389

8.5.1

Application of the Slayer Statute ..................................................................... 389

8.5.1.1 Slayer Is Legally Disinherited .......................................................................... 389
In the Matter of the Estate of Blodgett, 147 P.3d 702 (Alaska 2006) ............................................. 389
8.5.1.2

Slayer’s Descendant May Not Be Legally Disinherited ............................... 393

In the Matter of the Estate of Van Der Veen, 935 P.2d 1042 (Kan. 1997) ................................... 393
8.5.2
8.5.2.1

Exceptions ........................................................................................................ 396
Assisted Suicide ............................................................................................ 396

In re the Estate of Schunk, 760 N.W.2d 446 (Wis. 2008) ............................................................. 396
8.5.2.2

Mentally Incompetent Slayer ........................................................................ 400
xii

Estate of Armstrong v. Armstrong, 170 So.3d 510 (Miss. 2015) .................................................... 400
Notes and Questions .................................................................................................. 406
Problems ..................................................................................................................... 407

Chapter Nine: Testamentary Capacity (Mental Competency and Insane
Delusion) ........................................................................................................... 409
9.1.

Introduction ............................................................................................................. 409

9.2

Testamentary Capacity ............................................................................................ 410
In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005) ............................................................... 410
Notes, Problems, and Questions ................................................................................ 414
Matter of Estate of Oliver, 934 P.2d 144 (Kan. App. 1997) .......................................................... 415
Notes, Problems, and Questions ................................................................................ 419
Paine v. Sullivan, 950 N.E.2d 874 (Mass. App. 2011) ................................................................. 420
Notes, Problems, and Questions ................................................................................ 425

9.3

Insane Delusion....................................................................................................... 426
Matter of Estate of Killen, 937 P.2d 1368 (Ariz. App. 1996) ....................................................... 426
Matter of Estate of Watlack, 945 P.2d 1154 (Wash. App. 1997).................................................. 432
Notes, Problems, and Questions ................................................................................ 436
Class Discussion Tools ............................................................................................... 436

Chapter Ten: Testamentary Capacity (Undue Influence, Duress and Fraud) 438
10.1

Introduction ............................................................................................................. 438

10.2

Undue Influence/Duress ........................................................................................ 438

10.2.1

Presumption of Undue Influence ..................................................................... 438

Noblin v. Burgess, 54 So.3d 282 (Miss. 2010) ................................................................................ 439
In re Estate of Saucier, 908 So. 2d 883 (Miss. Ct. App. 2005) ...................................................... 444
Problems ..................................................................................................................... 448
10.2.2

Undue Influence ............................................................................................... 449

In re Estate of Schoppe, 710 N.W.2d 258 (Iowa Ct. App. 2005) ................................................... 449
Notes, Problems, and Questions ................................................................................ 453
10.2.3

Duress ............................................................................................................... 454

In re Estate of Rosasco, 31 Misc. 3d 1214(A), 927 N.Y.S.2d 819 (N.Y. Sur. Ct. 2011) ............. 455
10.3

Fraud........................................................................................................................ 463
xiii

10.3.1

Fraud in the inducement .................................................................................. 463

10.3.2

Fraud in the Execution..................................................................................... 464

10.4

Intentional Interference With An Inheritance Expectancy (IIE) ........................... 464
§ 774B Intentional Interference with Inheritance or Gift .................................................................... 465
Schilling v. Herrera, 952 So. 2d 1231 (Fla. App. 2007) ................................................................ 465
Notes, Problems, and Questions ................................................................................ 470
Class Discussion Tool................................................................................................. 471

Chapter Eleven: Attested Wills ......................................................................... 472
11.1

Introduction ............................................................................................................. 472
Va. Code Ann. 64.2-403. Execution of wills; requirements ............................................................. 472

11.2

Writing ..................................................................................................................... 472
N.R.S. 133.085. Electronic will (Nevada) ....................................................................................... 472
Problems ..................................................................................................................... 473

11.3

Signed by the Testator............................................................................................. 474

11.3.1

Signature Problems .......................................................................................... 474

Taylor v. Holt, 134 S.W.3d 830 (Tenn. Ct. App. 2003)................................................................ 474
Matter of Will of Bernatowicz, 233 A.D.2d 838 (N.Y. App. Div. 1996) ...................................... 477
Notes, Problems, and Questions ................................................................................ 479
11.4

In the Presence ........................................................................................................ 479

11.4.1

Line of Sight ..................................................................................................... 480

Walker v. Walker, 174 N.E. 541 (Ill. 1930) ................................................................................ 480
11.4.2

Conscious Presence .......................................................................................... 483

Whitacre v. Crowe, 972 N.E.2d 659 (Ohio Ct. App. 2012) .......................................................... 483
12.5

Witnesses ................................................................................................................. 489
A.C.A. § 28-25-102. Competency, etc., of witnesses ......................................................................... 489
Scandurro v. Beto, 234 S.W.2d 695 (Tex. Civ. App. 1950) ........................................................... 490
Problems ..................................................................................................................... 493

11.6

Revocation ............................................................................................................... 494
M.G.L.A. 190B § 2-507 Revocation by writing or by act (Mass.) ................................................... 494

11.6.1

By Later Writing ............................................................................................... 495

Problems ..................................................................................................................... 495
xiv

11.6.2

By Physical Act ................................................................................................. 496

11.6.2.1 Attempted Destruction ................................................................................... 496
Thompson v. Royall, 175 S.E. 748 (Va. 1934) .............................................................................. 496
11.6.2.2 Presumption of Destruction ........................................................................... 498
Edmonds v. Edmonds, 772 S.E.2d 898 (Va. 2015) ...................................................................... 498
Harrison v. Bird, 621 So.2d 972 (Ala. 1993) ................................................................................ 507
Notes, Problems, and Questions ................................................................................ 508
11.6.3 Dependent Relative Revocation and Revival (DRRR)......................................... 509
11.6.3.1

DRRR ........................................................................................................ 510

Kroll v. Nehmer, 705 A.2d 716 (Md. 1998). ................................................................................. 510
Notes, Problems, and Questions ................................................................................ 517
11.6.3.2 Revival............................................................................................................. 517
N.C.G.S.A. § 31-5.8.Revival of revoked will .................................................................................. 518
VA Code Ann. § 64.2-411. Revival of wills after revocation ........................................................... 518
20 Pa.C.S.A. § 2506. Revival of revoked or invalid will .................................................................. 518
MCA 72-2-529. Revival of revoked will (Montana) ........................................................................ 518
Problems ..................................................................................................................... 518
11.6.4

Revocation by Changed Circumstances .......................................................... 519

11.6.4.1 Spouses............................................................................................................ 519
11.6.4.1.1 Divorce ........................................................................................................................... 519
Davis v. Aringe, 731 S.W.2d 210 (Ark. 1987) ............................................................................. 519
11.6.4.1.2 Marriage......................................................................................................................... 522
Estate of Murrary, 193 Cal. Rptr. 355 (1983) ............................................................................... 522
11.6.4.2 Children .......................................................................................................... 524
11.6.4.2.1 Omitted Children ............................................................................................................ 524
UPC § 2-302. Omitted Children ..................................................................................................... 524
Problems ..................................................................................................................... 525
11.6.4.2.2 After Born Children ....................................................................................................... 526
Hedlund et al. v. Miner et. al., 69 N.E.2d 862 (Ill. 1946) ............................................................. 526
Notes and Questions .................................................................................................. 531

Chapter Twelve: Non-Attested Wills ................................................................ 533
xv

12.1

Introduction ............................................................................................................. 533

12.2

Holographic Will ..................................................................................................... 533
Uniform Probate Code § 2-502. Execution; Witnessed or Notarized Wills; Holographic Wills. ....... 533

12.2.1

Testamentary Intent ......................................................................................... 533

In re Kimmel’s Estate, 278 Pa. 435 (Pa. 1924) .............................................................................. 534
Estate of Southworth, 51 Cal. App. 4th 564 (Cal. Ct. App. 1996) ................................................. 537
Problems ..................................................................................................................... 542
12.2.2

In the Testator’s Handwriting ......................................................................... 543

Matter of Estate of Hand, 684 A.2d 521 (N.J. 1996) ................................................................... 543
12.2.3

Material Portions .............................................................................................. 546

Matter of Estate of Krueger, 529 N.W.2d 151 (N.D. 1995) .......................................................... 546
12.2.4

Preprinted Forms.............................................................................................. 548

In re Will of Ferree, 848 A.2d 81 (N.J. 2003) ............................................................................... 548
12.3

Nuncupative Wills ................................................................................................... 553
T. C. A. § 32-1-106. Nuncupative wills (Tenn.) ............................................................................. 553
Problems ..................................................................................................................... 554

Chapter Thirteen: Additional Doctrines Impacting Wills ............................... 556
13.1

Introduction ............................................................................................................. 556

13.2

Incorporation by Reference ..................................................................................... 556
§ 2-510. Incorporation by Reference .................................................................................................. 556

13.2.1

In Existence...................................................................................................... 556

Cyfers v. Cyfers, 759 S.E.2d 475 (W. Va. 2014)........................................................................... 556
Clark v. Citizens Nat. Bank of Collingswood, 118 A.2d 108 (N.J. Super. Ct. App. Div 1955) ... 562
13.2.2

Description and Intent ..................................................................................... 567

Clark v. Greenhalge, 582 N.E.2d 949 (Mass. 1991) ..................................................................... 567
Problems ..................................................................................................................... 571
13.3

Integration ............................................................................................................... 572
In re Morrison’s Estate, 220 P.2d 413 (Cal. Ct. App. 1950) ......................................................... 572
Problems ..................................................................................................................... 576

13.4

Republication by Codicil ......................................................................................... 576
Restatement (Third) of Property (Wills & Don. Trans.) § 3.4 (1999) ............................................. 576
xvi

§ 4-512. Events of Independent Significance. ..................................................................................... 578
Problems ..................................................................................................................... 579
13.6

Interaction Between the Doctrines ......................................................................... 579
Walsh v. St. Joseph’s Home For Aged, 303 A.2d 691 (Del.Ch. 1973) ........................................... 579

13.7

Contracts Relating to Wills .................................................................................. 581

13.7.1

Contract to Make a Will.................................................................................... 582

Uniform Probate Code § 2-514. Contracts Concerning Succession ..................................................... 582
Newton v. Lawson, 720 S.E.2d 353 (Ga. Ct. App. 2011) ............................................................ 582
Problems ..................................................................................................................... 586
13.7.2

Contract Not to Revoke a Will ......................................................................... 586

Problems ..................................................................................................................... 587

Chapter Fourteen: Mistakes and Curative Doctrines....................................... 588
14.1

Introduction ............................................................................................................. 588

14.2

Drafting Errors ........................................................................................................ 588
In re Gibb’s Estate, 111 N.W.2d 413 (Wis. 1961) ....................................................................... 588

14.3

Execution Errors ..................................................................................................... 592

14.3.1

Strict Compliance ............................................................................................. 592

In re Pavlinko’s Estate, 148 A.2d 528 (Pa. 1959) ......................................................................... 592
14.3.2

Substantial Compliance.................................................................................... 598

Matter of Will of Ranney, 589 A.2d 1339 (N.J. 1991) .................................................................. 599
14.3.3

Harmless Error/Dispensing Power ................................................................. 606

In re Estate of Ehrlich, 47 A.3d 12 (N.J. Super. Ct. App. Div. 2012) .......................................... 606
In re Estate of Sky Dancer, 13 P.3d 1231 (Colo. App. 2000) ........................................................ 613

Chapter Fifteen: The Stale Will Problem .......................................................... 617
15.1

Introduction ............................................................................................................. 617

15.2

Common law/Default Lapse Rules ........................................................................ 617

15.2.1

Specific and General Devises ........................................................................... 617

15.2.2

Residuary Devises ............................................................................................ 618

15.2.3

No Residue-of-a Residue Rule......................................................................... 618

15.2.3

Class Devises .................................................................................................... 619

Matter of Seaman, 196 Misc. 202 (N.Y. Sur. Ct. 1949) ............................................................... 619
xvii

Matter of Kalouse’s Estate, 282 N.W.2d 98 (Iowa 1979) ............................................................... 620
Nolan v. Borger, 203 N.E.2d 274 (Ohio Prob. 1963) .................................................................... 628
15.2.4

Void Devises ..................................................................................................... 634

In re Estate of Russell, 444 P.2d 353 (Cal. 1968) .......................................................................... 634
Notes, Problems, and Questions ................................................................................ 640
M.S.A. § 524.2-603. Antilapse; deceased devisee; class gifts; words of survivorship (Minn.) .............. 642
14.3.1

Devisee Predeceases the Testator .................................................................... 642

Gianoli v. Gabaccia, 412 P.2d 439 (Nev. 1966) ............................................................................. 642
In re Estate of Evans, 326 P.3d 755 (Wash. Ct. App. 2014) ........................................................ 644
15.3.2

Testator’s Contrary Intent ................................................................................ 650

15.3.2.1

Language of the Will ................................................................................ 651

M.S.A. § 524.2-603. Antilapse; deceased devisee; class gifts; words of survivorship (Minn.) .............. 651
Ruotolo v. Tietjen, 890 A.2d 166 (Conn. App. Ct. 2006) .............................................................. 651
15.3.2.2

Alternative Disposition .............................................................................. 658

Kubiczky v. Wesbanco Bank Wheeling, 541 S.E.2d 334 (W. Va. 2000)....................................... 658
15.4

Ademption ............................................................................................................... 665

15.4.1

Ademption by Extinction ................................................................................. 665

Stewart v. Sewell, 215 S.W.3d 815 (Tenn. 2007) ........................................................................... 665
Notes, Problems, and Questions ................................................................................ 675
Uniform Probate Code § 2-606. Nonademption of specific devises: Unpaid proceeds of sale,
Condemnation, or insurance; Sale by conservator or agent ................................................................... 676
15.4.2

Ademption by Satisfaction ............................................................................... 676

In re Estate of Condon, 715 N.W.2d 770 (Iowa Ct. App. 2006) ................................................... 677
SDCL § 29A-2-609. Ademption by satisfaction (S.D.) .................................................................. 680
Problems ..................................................................................................................... 681
15.5

Other Doctrines Relevant to Will Property ............................................................. 681

15.5.1

Exoneration of Liens ........................................................................................ 681

VA Code Ann. § 64.2-531. Nonexoneration; payment of lien if granted by agent ............................ 682
Estate of Fussell v. Fortney, 730 S.E.2d 405 (W. Va. 2012)......................................................... 682
15.5.2

Abatement ........................................................................................................ 687

Part III — Nonprobate Transfers ..................................................................... 688
xviii

Chapter Sixteen: Will Substitutes...................................................................... 688
16.1

Introduction ............................................................................................................. 688

16.2

Life Insurance.......................................................................................................... 688

16.2.1

Changing the Beneficiary ................................................................................. 689

Carruthers v. $21,000 (Formerly New York Life Ins. Co.), 434 A.2d 125 (Pa. Super. 1981) ....... 689
Doss v. Kalas, 383 P.2d 169 (Ariz. 1963) ..................................................................................... 691
Notes, Problems, and Questions ................................................................................ 693
16.3

Private Retirement Accounts................................................................................... 694
Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141 (2014) ............................................................... 695
Questions .................................................................................................................... 703

16.4

Joint Bank Accounts ................................................................................................ 703
In re Estate of Platt, 772 N.E.2d 198 (Ohio Ct. App. 2002) ........................................................ 704
Notes, Problems, and Questions ................................................................................ 707

16.5

Concurrently Owned Real Property ........................................................................ 708

16.6

Inter Vivos Trusts .................................................................................................... 708

16.6.1

Creation of a Trust............................................................................................ 709

16.6.1.1.

Intent ......................................................................................................... 709

Frazier v. Hudson, 130 S.W.2d 809 (Ky. Ct. App. 1939) ............................................................. 709
Bothe v. Dennie, 324 A.2d 784 (Del. 1974) ................................................................................... 712
Notes and Problems.................................................................................................... 716
16.6.1.2.

Property ..................................................................................................... 717

In re Estate of McDowell, 781 N.W.2d 568 (Iowa Ct.App. 2010) ................................................ 717
16.6.2

Modification/Revocation of a Trust ................................................................ 722

Chiles v. Chiles, 242 S.E.2d 426 (S.C. 1978) ................................................................................ 722
Notes, Problems, and Questions ................................................................................ 724

xix

Preface
Both lay persons and budding lawyers continue to be interested in the area of estates and
trusts. While I was writing this book, several celebrities died. Certain deaths really attracted the
attention of the public. Facebook and other social media sites were full of dedications to Prince
when his death was announced. Robin Williams spent his life making us laugh; the tragic
circumstances of his death made us sad. After all of the tears, memorials and speculations ceased,
people started searching the Internet for copies of the wills. They were interested in the worth of the
various estates and the manner in which those estates would be distributed. They were shocked
when Prince died without leaving a will. They watched legal experts go on television to explain the
consequences of Prince’s failure to execute a will. At times, the media coverage was like watching
the introduction to a Wills & Trusts class. Prince died a single man with no children. He was
survived by several whole-blood and half-blood siblings. There were even persons coming forth
claiming to be his non-marital children. When cases like this occur, people realize that estate
planning and probate law are still interesting and relevant.
The purpose of this casebook is to train the students to think and act like estate planning
attorneys. This book is meant to be used in conjunction with a book on the law of trusts. The
focus of the book is problem-solving and legal application. The book includes numerous problems,
so the students can learn to apply the law they learn from reading the cases. It also contains
collaborative learning exercises to encourage students to engage in group problem-solving. This
book contains less policy than traditional casebooks in the area. Instead the book contains
numerous problems that will enable the students to understand and apply the black letter law. The
book is divided into three parts to reflect the main types of issues that students will encounter if they
practice elder or estate planning law. The order of the book mirrors the manner in which estate
planning law is practiced in the real world.
The book starts with an examination of the intestacy system because the majority of people
die without executing a will. Therefore, most of the legal issues an estate planning lawyer faces
center around the intestacy system. Unlike the typical wills casebook, this book provides a detailed
discussion of the intestacy system. A chapter on ethics is included because estate planning attorneys
encounter ethical issues that are different from persons practicing in other areas of law.
The second part of the book includes an exploration of the testacy system. It is arranged so
professors can lead students from the client interview to the will execution. The first three chapters
of this section deal with issues that directly impact the existence of the inheritance system. It
analyzes a person’s ability to control the disposition of his or her property after death. This serves
as the students’ first introduction to the power of the “dead hand”. These chapters are included to
start a public policy discussion about the rights of the dead, the right of heirs, and the necessity of an
inheritance system. I tell my students that, when executing a will, they must think of the ways that it
can be contested. In addition, I tell them that a will can be contested on two fronts-an attack on the
testator and an attack on the will. Two chapters in this part highlight the various ways that someone
might question the testator’s ability to execute a valid will.
The final chapters in this unit show the issues that can be raised to dispute the validity of the
will. They also explain the different types of wills that are available. The final part of the book deals
with non-probate transfers. These chapters are included to show students the other devises that
people can use to dispose of their property. That knowledge is important because a significant
xx

number of people use these devices to transfer their property. For example, at the end of the
semester, my students have to draft a will based upon a fact pattern that I give them. I intentionally
include non-probate property in order to see if they will attempt to distribute that using the will.
Most of the litigation that occurs in the estates and trusts area center around family
disputes. Consequently, the book devotes a significant amount of time analyzing family dynamics.
To that end, the book discusses the ways in which families are legally formed.

xxi

Part I – The Intestacy System
Chapter One: Ethically Representing the Elderly Client
1.1

Introduction

As an estate planning attorney most of the clients you encounter will be elderly or vulnerable
in some way. This is the case because the young and the healthy do not usually think about estate
planning. Representing elderly clients can be challenging for a variety of reasons. This chapter will
examine some of the most common problems an estate planning attorney may face when
representing an elderly or disabled client. All lawyers are bound by the rules of professional
responsibility. The fact that estate planning attorneys are often considered to be lawyers for the
“entire family” may lead to conflicts of interests and other ethical problems.
The law is moderately clear-cut when it comes to the rights and responsibilities of minor
children. For example, the law makes it clear that, as a general rule, persons under the age of
majority are prevented from entering into transactions that are legally binding. In additional, parents
are permitted to speak for their minor and/or permanently disabled children. Nevertheless, it is
unclear when the tables should be turned. When should children be allowed to make decisions for
their elderly parents? This inquiry presents problems for practicing lawyers. Adult children
frequently believe that the moment their parents start having cognitive problems it is legally
permissible for them to make decisions for their parents. The baby boomers are aging, so the elderly
population will continue to increase. Therefore, attorneys are going to find themselves representing
a greater number of elderly clients.
The representation of elderly clients may present unique challenges for estate planning
attorneys. Lawyers who represent older clients often fail to follow some of the Model Rules of
Professional Conduct. For instance, attorneys typically have discussions with their elderly clients in
the presence of their adult children. That makes sense as a practical matter because the adult child is
often the one who contacts the attorney, arranges the meeting, and brings the elderly client to the
attorney’s office. Yet, that action may cause the attorney to violate Model Rule 1.6 that protects the
client’s confidentiality.
1.2

Client Identification

All lawyers have an ethical obligation to make it very clear who they represent. The person
who hires the attorney and pays the bills may not be the client. The client is the person whose
interests are most at stake in the legal planning or legal problem. The attorney owes the professional
duties of competence, diligence, loyalty and confidentiality to the client, not the family. It is crucial
to make this distinction in estate planning law cases because family members may be involved in the
legal concerns of the older person, and may even have a stake in the case. It is possible, in some
situations, for an attorney to represent more than one member of the same family. For instance, that
may be a common practice when the attorney is dealing with a married couple.

1

1.3

Conflict of Interest

Lawyers have an ethical duty to avoid conflicts of interest. This means that, in most
situations, a lawyer may only represent one individual. For example, when legal estate planning
involves property, such as the family home, in which several people have an interest, these interests
are actually or potentially conflicting. Sometimes joint representation is possible, even with a
potential conflict of interest, if the client gives informed consent to the representation in writing.
However, the attorney should be very careful. This is particularly true when the client is an elderly
person executing a will or a testamentary trust because there is a third party who has the potential to
benefit from the attorney’s actions. The next case involves a situation where the lawyer represented
the testator and a devisee.

Chase v. Bowen, 771 So.2d 1181 (Fla. Dist. Ct. App. 2000)
HARRIS, J.
Naomi Chase sued Lennon Bowen for legal malpractice because he prepared her mother’s revised
will omitting Naomi as a beneficiary and instead making major bequests to her mother’s business
associates, the Lavenders. Her claim is based on her allegation that Bowen was “her lawyer” as well
as the lawyer for her mother and the Lavenders and that Bowen was “mandated ... by the ethical
obligations imposed by his profession” to notify her, her mother and the Lavenders of his
“irreconcilable conflict of interest” in preparing her mother’s rewrite of her will. The trial court’s
summary judgment in favor of Bowen is now before us. We affirm.
Although there is no dispute that Bowen has from time to time during the relevant years represented
the daughter, her mother and the Lavenders, the record is not clear exactly what, at the time of the
preparation of the mother’s contested amended will and trust, the nature of Bowen’s alleged
representation of Naomi was. She alleges only that, “Beginning in 1988 and continuing through
1996, ... Bowen drafted will and trust documents for [Naomi] and redrafted the will and amended
the trust agreement of [the mother].”
Naomi apparently believes that Rule 4–1.7, “Conflict of Interest; general rule,” requires that if a
lawyer represents a group of people in one matter or in various matters, he must necessarily get the
approval of all in order to represent any one of such group in an unrelated matter. We do not so
read the rule. If a lawyer prepares the wills of various members of a family, he thereby assumes no
obligation to oppose any testator or testatrix from changing such will. Nor is he precluded from
assisting such testator or testatrix in the redrafting. There are no allegations that Bowen conspired
with the Lavenders to induce the mother to change her will nor is there an allegation that Bowen
used his influence to bring about the mother’s change of heart. Naomi simply had no legal right to
object to Bowen representing her mother when the mother desired to change her previous will
prepared by him.
We believe the supreme court in The Florida Bar v. Moore, 194 So.2d 264, 269 (Fla. 1966), explained
the principle behind the rule when it stated:
We are of the opinion that a lawyer represents conflicting interests, within the
2

meaning of the Canon, when it becomes his duty, on behalf of one client, to
contend for that which his duty to another client would require him to oppose.
It is our view that a lawyer who prepares a will owes no duty to any previous beneficiary, even a
beneficiary he may be representing in another matter, to oppose the testator or testatrix in changing
his or her will and, therefore, that assisting in that change is not a conflict of interest.
AFFIRMED.
1.4

Confidentiality

Lawyers have an obligation to keep information and communication between them and their
clients confidential. Thus, attorneys cannot share client information with other family members
without obtaining approval from the clients. The amount of information a client is willing to permit
his or her attorney to disclose may vary. Some clients may be comfortable having their attorneys
share all of the information and having family members participate in the discussions. On the other
hand, some clients may only want their family members to be given general updates. There are also
clients who may demand complete confidentiality. The attorney needs to establish the limitations of
disclosure during the initial consultation. In all cases, one of the attorney’s main objectives should be
to keep his or her clients fully informed. In some cases, accomplishing that goal may be complicated
by the duty to keep certain information confidential.
Confidentiality issues often occur when an attorney chooses to represent two or more
persons with competing interests. A prime example of this situation is when a husband and wife
retain an attorney to execute a will. Lawyers routinely take these types of cases because many
couples may want reciprocal wills. There are several reasons why this type of dual representation
can lead to problems. First, one party may have a secret that is relevant to the distribution of the
estates. For instance, if a husband is having an affair, the wife may not be willing to make him the
sole beneficiary of her estate. The lawyer usually becomes aware of the other woman when the man
seeks to include her in his testamentary plans by secretly leaving her a portion of his estate. Second,
one or both of the clients may be in a second marriage. This is relevant because there may be
children who are not children of the second marriage. Consequently, one or both of the clients may
try to get the attorney to draft a testamentary document that leaves a portion of the estate to a child
without the stepparent’s knowledge. Finally, for whatever reason, one of the parties may contact the
attorney to have his or her will modified in a way that is detrimental to the other party. Since the
purpose of reciprocal or mutual wills is to make sure that each person inherits the other person’s
estate, the modification may put the attorney in the position of acting in a way that is not in the best
interests of one of his or her clients.

A. v. B., 726 A2d 924 (N.J. 1999)
POLLOCK, J.
This 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’s former law firm, which
contemporaneously represented the father and his wife in planning their estates, seeks to disclose to
3

the wife the existence of the father’s illegitimate child.
A law firm, Hill Wallack (described variously as “the law firm” or “the firm”), jointly represented the
husband and wife in drafting wills in which they devised their respective estates to each other. The
devises created the possibility that the other spouse’s issue, whether legitimate or illegitimate,
ultimately would acquire the decedent’s property.
Unbeknown to Hill Wallack and the wife, the husband recently had fathered an illegitimate child.
Before the execution of the wills, the child’s mother retained Hill Wallack to institute this paternity
action against the husband. Because of a clerical error, the firm’s computer check did not reveal the
conflict of interest inherent in its representation of the mother against the husband. On learning of
the conflict, the firm withdrew from representation of the mother in the paternity action. Now, the
firm wishes to disclose to the wife the fact that the husband has an illegitimate child. To prevent Hill
Wallack from making that disclosure, the husband joined the firm as a third-party defendant in the
paternity action.
In the Family Part, the husband, represented by new counsel, Fox, Rothschild, O’Brien & Frankel
(“Fox Rothschild”), requested restraints against Hill Wallack to prevent the firm from disclosing to
his wife the existence of the child. The Family Part denied the requested restraints. The Appellate
Division reversed and remanded “for the entry of an order imposing preliminary restraints and for
further consideration.”
Hill Wallack then filed motions in this Court seeking leave to appeal, to present oral argument, and
to accelerate the appeal. Pursuant to Rule 2:8–3(a), we grant the motion for leave to appeal,
accelerate the appeal, reverse the judgment of the Appellate Division and remand the matter to the
Family Part. Hill Wallack’s motion for oral argument is denied.
I.
Although the record is both informal and attenuated, the parties agree substantially on the relevant
facts. Because the Family Part has sealed the record, we refer to the parties without identifying them
by their proper names. So viewed, the record supports the following factual statement.
In October 1997, the husband and wife retained Hill Wallack, a firm of approximately sixty lawyers,
to assist them with planning their estates. On the commencement of the joint representation, the
husband and wife each signed a letter captioned “Waiver of Conflict of Interest.” In explaining the
possible conflicts of interest, the letter recited that the effect of a testamentary transfer by one
spouse to the other would permit the transferee to dispose of the property as he or she desired. The
firm’s letter also explained that information provided by one spouse could become available to the
other. Although the letter did not contain an express waiver of the confidentiality of any such
information, each spouse consented to and waived any conflicts arising from the firm’s joint
representation.
Unfortunately, the clerk who opened the firm’s estate planning file misspelled the clients’ surname.
The misspelled name was entered in the computer program that the firm uses to discover possible
conflicts of interest. The firm then prepared reciprocal wills and related documents with the names
of the husband and wife correctly spelled.
4

In January 1998, before the husband and wife executed the estate planning documents, the mother
coincidentally retained Hill Wallack to pursue a paternity claim against the husband. This time, when
making its computer search for conflicts of interest, Hill Wallack spelled the husband’s name
correctly. Accordingly, the computer search did not reveal the existence of the firm’s joint
representation of the husband and wife. As a result, the estate planning department did not know
that the family law department had instituted a paternity action for the mother. Similarly, the family
law department did not know that the estate planning department was preparing estate plans for the
husband and wife.
A lawyer from the firm’s family law department wrote to the husband about the mother’s paternity
claim. The husband neither objected to the firm’s representation of the mother nor alerted the firm
to the conflict of interest. Instead, he retained Fox Rothschild to represent him in the paternity
action. After initially denying paternity, he agreed to voluntary DNA testing, which revealed that he
is the father. Negotiations over child support failed, and the mother instituted the present action.
After the mother filed the paternity action, the husband and wife executed their wills at the Hill
Wallack office. The parties agree that in their wills, the husband and wife leave their respective
residuary estates to each other. If the other spouse does not survive, the contingent beneficiaries are
the testator’s issue. The wife’s will leaves her residuary estate to her husband, creating the possibility
that her property ultimately may pass to his issue. Under N.J.S.A. 3B:1-3, the term “issue” includes
both legitimate and illegitimate children. When the wife executed her will, therefore, she did not
know that the husband’s illegitimate child ultimately may inherit her property.
The conflict of interest surfaced when Fox Rothschild, in response to Hill Wallack’s request for
disclosure of the husband’s assets, informed the firm that it already possessed the requested
information. Hill Wallack promptly informed the mother that it unknowingly was representing both
the husband and the wife in an unrelated matter.
Hill Wallack immediately withdrew from representing the mother in the paternity action. It also
instructed the estate planning department not to disclose any information about the husband’s assets
to the member of the firm who had been representing the mother. The firm then wrote to the
husband stating that it believed it had an ethical obligation to disclose to the wife the existence, but
not the identity, of his illegitimate child. Additionally, the firm stated that it was obligated to inform
the wife “that her current estate plan may devise a portion of her assets through her spouse to that
child.” The firm suggested that the husband so inform his wife and stated that if he did not do so, it
would. Because of the restraints imposed by the Appellate Division, however, the firm has not
disclosed the information to the wife.
II.
This appeal concerns the conflict between two fundamental obligations of lawyers: the duty of
confidentiality, Rules of Professional Conduct (RPC) 1.6(a), and the duty to inform clients of material
facts, RPC 1.4(b). The conflict arises from a law firm’s joint representation of two clients whose
interests initially were, but no longer are, compatible.
Crucial to the attorney-client relationship is the attorney’s obligation not to reveal confidential
information learned in the course of representation. Thus, RPC 1.6(a) states that “[a] lawyer shall not
reveal information relating to representation of a client unless the client consents after consultation,
5

except for disclosures that are impliedly authorized in order to carry out the representation.”
Generally, “the principle of attorney-client confidentiality imposes a sacred trust on the attorney not
to disclose the client’s confidential communication.” State v. Land, 73 N.J. 24, 30, 372 A.3d (1977).
A lawyer’s obligation to communicate to one client all information needed to make an informed
decision qualifies the firm’s duty to maintain the confidentiality of a co-client’s information. RPC
1.4(b), which reflects a lawyer’s duty to keep clients informed, requires that “[a] lawyer shall explain a
matter to the extent reasonably necessary to permit the client to make informed decisions regarding
the representation.” See also Gantam v. De Luca, 215 N.J. Super. 388, 397, 521 A.2d 1343
(App.Div.1987)(stating that attorney has continuing duty “to inform his client promptly of any
information important to him”); Passanante v. Yormark, 138 N.J.Super. 233, 238, 350 A.2d 497
(App.Div.1975) (“[An attorney’s] duty includes the obligation of informing his client promptly of
any known information important to him.”). In limited situations, moreover, an attorney is
permitted or required to disclose confidential information. Hill Wallack argues that RPC 1.6
mandates, or at least permits, the firm to disclose to the wife the existence of the husband’s
illegitimate child. RPC 1.6(b) requires that a lawyer disclose “information relating to representation
of a client” to the proper authorities if the lawyer “reasonably believes” that such disclosure is
necessary to prevent the client “from committing a criminal, illegal or fraudulent act that the lawyer
reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the
financial interest or property of another.” RPC 1.6(b)(1). Despite Hill Wallack’s claim that RPC
1.6(b) applies, the facts do not justify mandatory disclosure. The possible inheritance of the wife’s
estate by the husband’s illegitimate child is too remote to constitute “substantial injury to the
financial interest or property of another” within the meaning of RPC 1.6(b).
By comparison, in limited circumstances RPC 1.6(c) permits a lawyer to disclose a confidential
communication. RPC 1.6(c) permits, but does not require, a lawyer to reveal confidential
information to the extent the lawyer reasonably believes necessary “to rectify the consequences of a
client’s criminal, illegal or fraudulent act in furtherance of which the lawyer’s services had been
used.” RPC 1.6(c)(1). Although RPC 1.6(c) does not define a “fraudulent act,” the term takes on
meaning from our construction of the word “fraud,” found in the analogous “crime or fraud”
exception to the attorney-client privilege. See N.J.R.E. 504(a)(excepting from attorney-client privilege
“a communication in the course of legal service sought or obtained in the aid of the commission of
a crime or fraud”); Kevin H. Michels, New Jersey Attorney Ethics § 15:3–3 at 280 (1998) (“While the
RPCs no longer incorporate the attorney-client privilege into the definition of confidential
information, prior constructions of the fraud exception may be relevant in interpreting the
exceptions to confidentiality contained in RPC 1.6(b) and (c) ....”) (internal citation omitted). When
construing the “crime or fraud” exception to the attorney-client privilege, “our courts have generally
given the term ‘fraud’ an expansive reading.” Fellerman v. Bradley, 99 N.J. 493, 503-04, 493 A.2d 1239
(1985).
We likewise construe broadly the term “fraudulent act” within the meaning of RPC 1.6(c). So
construed, the husband’s deliberate omission of the existence of his illegitimate child constitutes a
fraud on his wife. When discussing their respective estates with the firm, the husband and wife
reasonably could expect that each would disclose information material to the distribution of their
estates, including the existence of children who are contingent residuary beneficiaries. The husband
breached that duty. Under the reciprocal wills, the existence of the husband’s illegitimate child could
affect the distribution of the wife’s estate, if she predeceased him. Additionally, the husband’s child
support payments and other financial responsibilities owed to the illegitimate child could deplete
6

that part of his estate that otherwise would pass to his wife.
From another perspective, it would be “fundamentally unfair” for the husband to reap the “joint
planning advantages of access to information and certainty of outcome,” while denying those same
advantages to his wife. Teresa S. Collett, Disclosure, Discretion, or Deception: The Estate Planner’s Ethical
Dilemma from a Unilateral Confidence, 28 Real Prop. Prob. Tr. J. 683, 743 (1994). In effect, the husband
has used the law firm’s services to defraud his wife in the preparation of her estate.
The New Jersey RPCs are based substantially on the American Bar Association Model Rules of Professional
Conduct (“the Model Rules”). RPC 1.6, however, exceeds the Model Rules in authorizing the disclosure
of confidential information. A brief review of the history of the Model Rules and of RPC 1.6 confirms
New Jersey’s more expansive commitment to the disclosure of confidential client information.
In 1977, the American Bar Association appointed a Commission on Evaluation of Professional
Standards, chaired by the late Robert J. Kutak. The Commission, generally known as the “Kutak
Commission,” originally proposed a rule that permitted a lawyer to disclose confidential information
in circumstances comparable to those permitted by RPC 1.6, The House of Delegates of the
American Bar Association, however, rejected the Kutak Commission’s recommendation. As adopted
by the American Bar Association, Model Rule 1.6(b) permits a lawyer to reveal confidential
information only “to the extent the lawyer reasonably believes necessary to prevent the client from
committing a criminal act that the lawyer believes is likely to result in imminent death or substantial
bodily harm.” Unlike RPC 1.6, Model Rule 1.6 does not except information relating to the
commission of a fraudulent act or that relating to a client’s act that is likely to result in substantial
financial injury. In no situation, moreover, does Model Rule 1.6 require disclosure. Thus, the Model
Rules provide for narrower disclosure than that authorized by RPC 1.6.
In 1982, this Court appointed a committee to consider the Model Rules. The committee, chaired by
the Honorable Dickinson R. Debevoise, became known as the “Debevoise Committee.” It
determined that the original provisions proposed by the Kutak Commission more closely reflected
the existing ethics rules in New Jersey. Thus, the Committee concluded that Model Rule 1.6 would
“narrow radically the circumstances in which New Jersey attorneys either may or must disclose the
information of their clients’ criminal or fraudulent behavior.” Report of the New Jersey Supreme Court
Committee on the Model Rules of Professional Conduct (1983), reprinted in Michels, supra, Appendix D at
1043. When adopting the RPC s, this Court substantially followed the recommendation of the
Debevoise Committee. Described as an “openly-radical experiment,” Geoffrey C. Hazard, Jr. & W.
William Hodes, 2 The Law of Lawyering § AP4:104 (1998), RPC 1.6 “contained the most far-reaching
disclosure requirements of any attorney code of conduct in the country,” Leslie C. Levin, Testing the
Radical Experiment: A Study of Lawyer Response to Clients Who Intend to Harm Others, 47 Rutgers L. Rev.
81, 92 (1994).
Under RPC 1.6, the facts support disclosure to the wife. The law firm did not learn of the husband’s
illegitimate child in a confidential communication from him. Indeed, he concealed that information
from both his wife and the firm. The law firm learned about the husband’s child through its
representation of the mother in her paternity action against the husband. Accordingly, the husband’s
expectation of nondisclosure of the information may be less than if he had communicated the
information to the firm in confidence.
In addition, the husband and wife signed letters captioned “Waiver of Conflict of Interest.” These
7

letters acknowledge that information provided by one client could become available to the other.
The letters, however, stop short of explicitly authorizing the firm to disclose one spouse’s
confidential information to the other. Even in the absence of any such explicit authorization, the
spirit of the letters supports the firm’s decision to disclose to the wife the existence of the husband’s
illegitimate child.
Neither our research nor that of counsel has revealed a dispositive judicial decision from this or any
other 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
to the wife the existence of the husband’s child.
The forthcoming Restatement (Third) of The Law Governing Lawyers § 112 comment l (Proposed
Final Draft No. 1, 1996) (“the Restatement ”) suggests, for example, that if the attorney and the coclients have reached a prior, explicit agreement concerning the sharing of confidential information,
that agreement controls whether the attorney should disclose the confidential information of one
co-client to another. Ibid. (“Co-clients ... may explicitly agree to share information” and “can also
explicitly agree that the lawyer is not to share certain information ... with one or more other coclients. A lawyer must honor such agreements.”); see also Report of the ABA Special Study Committee on
Professional Responsibility: Comments and Recommendations on the Lawyer’s Duties in Representing Husband and
Wife, 28 Real Prop. Prob. Tr. J. 765, 787 (1994)(“Although legally and ethically there is no need for a
prior discussion and agreement with the couple about the mode of representation, discussion and
agreement are the better practice. The agreement may cover ... the duty to keep or disclose
confidences.”); American College of Trust and Estate Counsel, ACTEC Commentaries on the Model
Rules of Professional Conduct 65–66 (2d ed. 1995) (“When the lawyer is first consulted by the multiple
potential clients the lawyer should review with them the terms upon which the lawyer will undertake
the representation, including the extent to which information will be shared among them.”).
As the preceding authorities suggest, an attorney, on commencing joint representation of co-clients,
should agree explicitly with the clients on the sharing of confidential information. In such a
“disclosure agreement,” the co-clients can agree that any confidential information concerning one
co-client, whether obtained from a co-client himself or herself or from another source, will be
shared with the other co-client. Similarly, the co-clients can agree that unilateral confidences or other
confidential information will be kept confidential by the attorney. Such a prior agreement will clarify
the expectations of the clients and the lawyer and diminish the need for future litigation.
In the absence of an agreement to share confidential information with co-clients, the Restatement
reposes the resolution of the lawyer’s competing duties within the lawyer’s discretion:
[T]he lawyer, after consideration of all relevant circumstances, has the ... discretion to inform the
affected co-client of the specific communication if, in the lawyer’s reasonable judgment, the
immediacy and magnitude of the risk to the affected co-client outweigh the interest of the
communicating client in continued secrecy.
[Restatement (Third) of The Law Governing Lawyers, supra, § 112 comment l.]
Additionally, the Restatement advises that the lawyer, when withdrawing from representation of the
co-clients, may inform the affected co-client that the attorney has learned of information adversely
affecting that client’s interests that the communicating co-client refuses to permit the lawyer to
8

disclose. Ibid.
In the context of estate planning, the Restatement also suggests that a lawyer’s disclosure of
confidential information communicated by one spouse is appropriate only if the other spouse’s
failure to learn of the information would be materially detrimental to that other spouse or frustrate
the spouse’s intended testamentary arrangement. (citations omitted).
Because Hill Wallack wishes to make the disclosure, we need not reach the issue whether the
lawyer’s obligation to disclose is discretionary or mandatory. In conclusion, Hill Wallack may inform
the wife of the existence of the husband’s illegitimate child.
Finally, authorizing the disclosure of the existence, but not the identity, of the child will not
contravene N.J.S.A. 9:17-42, which provides:
All papers and records and any information pertaining to an action or proceeding
held under [the New Jersey Parentage Act] which may reveal the identity of any
party in an action, other than the final judgment or the birth certificate, whether
part of the permanent record of the court or of a file with the State registrar of
vital statistics or elsewhere, are confidential and are subject to inspection only
upon consent of the court and all parties to the action who are still living, or in
exceptional cases only upon an order of the court for compelling reason clearly
and convincingly shown.
The law firm learned of the husband’s paternity of the child through the mother’s disclosure before
the institution of the paternity suit. It does not seek to disclose the identity of the mother or the
child. Given the wife’s need for the information and the law firm’s right to disclose it, the disclosure
of the child’s existence to the wife constitutes an exceptional case with “compelling reason clearly
and convincingly shown.”
The judgment of the Appellate Division is reversed and the matter is remanded to the Family Part.
Notes, Problems, and Questions
1. The secret child problem is more common than you would think. What are some steps that the
attorney can take during the initial consultation to ensure that he or she is not faced with the
situation involved in A. v. B.?
2. Why did the attorney for the firm argue that the state rules of professional conduct required the
firm to tell the wife about her husband’s non-marital child? Why did the court reject that argument?
3. Why did the court hold that the firm was permitted to disclose the existence of the child under
the state rules of professional conduct?
4. If the court had applied the ABA Model Rules of Professional Conduct instead of the state rules,
might the outcome of the case have been the same? Why? Why not?
5. What safeguards should an attorney representing co-clients take with regards to confidential
9

information?
6. In a jurisdiction that adopts the Restatement (Third) of The Law Governing Lawyers, what would
be the possible outcome of the case?
7. Wallace has been retained by Harold and Wanda to prepare wills pursuant to an arrangement
under which each spouse agrees to leave most of his or her property to the other. Shortly after the
wills are executed, Harold (unknown to Wanda) asks Wallace to prepare an inter vivos trust for
Jeremy, the man that Harold has been having an affair with for the last ten years. Harold has kept
the fact that he is bisexual from Wanda for many years. Prior to the execution of the wills, Harold
did not tell Wallace about Jeremy. Harold states that Wanda would be distraught at learning of
Harold’s infidelity and of Harold’s silence and that disclosure of the information could destroy their
marriage. As a result, Harold directs Wallace not to inform Wanda. The inter vivos trust that
Harold purposes to create would not materially affect Wanda’s own estate plan or her expected
receipt of property under Harold’s will, because Harold proposes to use property designated in
Harold’s will for a favorite charity to fund the proposed trust. Under the ABA Model Rules, is
Wallace required to disclose the affair to Wanda? Is Wallace permitted to disclose the affair? What
result under the Restatement? What result under the rules of professional conduct in your state?
8. Same facts as Problem 7, except that Harold’s proposed inter vivos trust would significantly
deplete Harold’s estate to Wanda’s material detriment and in frustration of the spouses’ intended
testamentary arrangements. Harold wants to create the trust because Jeremy is HIV positive and
cannot work. Under the ABA Model Rules, is Wallace required to disclose the affair to Wanda? Is
Wallace permitted to disclose the affair? What result under the Restatement? What result under the
rules of professional conduct in your state?
9. The American College of Trust and Estate Counsel (ACTEC) favors a discretionary rule. It
recommends that the “lawyer should have a reasonable degree of discretion in determining how to
respond to any particular case.” The ACTEC suggests that the lawyer first attempt to convince the
client to inform the co-client. When urging the client to disclose the information, the lawyer should
remind the client of the implicit understanding that all information will be shared by both clients.
The lawyer also should explain to the client the potential legal consequences of non-disclosure,
including invalidation of the wills. Furthermore, the lawyer may mention that failure to
communicate the information could subject the lawyer to a malpractice claim or disciplinary action.
The ACTEC reasons that if unsuccessful in persuading the client to disclose the information, the
lawyer should consider several factors in deciding whether to reveal the confidential information to
the co-client, including: (1) duties of impartiality and loyalty to the clients; (2) any express or implied
agreement among the lawyer and the joint clients that information communicated by either client to
the lawyer regarding the subject of the representation would be shared with the other client; (3) the
reasonable expectations of the clients; and (4) the nature of the confidence and the harm that may
result if the confidence is, or is not, disclosed.
10. Lawyer has represented Percy and June, his wife, for many years in a range of personal matters,
including estate planning. Percy and June have substantial individual assets, and they also own
substantial jointly-held property. Recently, Lawyer prepared new updated wills that Percy and June
signed. Like their previous wills, their new wills primarily benefit the survivor of them for his or her
life, with beneficial disposition at the death of the survivor being made equally to their children.
Several months after the execution of the new wills, Percy confers separately with Lawyer. Percy
10

reveals to Lawyer that he has just executed a codicil prepared by another law firm that makes
substantial beneficial disposition to a woman with whom Percy has been having an extra-marital
relationship. Under the ABA Model Rules, is Lawyer required to disclose information about the
codicil to June? Is Lawyer permitted to disclose the affair? What result under the Restatement?
What result under the rules of professional conduct in your state?

American Bar Association Model Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the
lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result
in substantial injury to the financial interests or property of another and in furtherance of
which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of
another that is reasonably certain to result or has resulted from the client’s commission
of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the
lawyer and the client, to establish a defense to a criminal charge or civil claim against the
lawyer’s representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interests arising from the lawyer’s change of
employment or from changes in the composition or ownership of a firm, but only if the
revealed information would not compromise the attorney-client privilege or otherwise
prejudice the client.
(c) lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure
of, or unauthorized access to, information relating to the representation of a client.
1.5

Competency

Lawyers have special ethical responsibilities in working with clients whose capacity for
making decisions may be diminished. Lawyers must treat the impaired person with the same
attention and respect to which every client is entitled. This means meeting privately with the client
and giving him or her enough time to explain what he or she wants. If the client is unable to make
11

decisions due to diminished capacity, and is at risk of serious physical, financial, or other harm, the
ethics rules require attorneys to consider actions to protect that client. Nevertheless, the attorney
has to be cautious when taking steps to protect the interests of a diminished client.

American Bar Association Model Rule 1.14 Client With Diminished Capacity
(a) When a client’s capacity to make adequately considered decisions in connection with a
representation is diminished, whether because of minority, mental impairment or for some other
reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship
with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of
substantial physical, financial or other harm unless action is taken and cannot adequately act in the
client’s own interest, the lawyer may take reasonably necessary protective action, including
consulting individuals or entities that have the ability to take action to protect the client, and in
appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
*****************
(d) Information relating to the representation of a client with diminished capacity is protected by
Rule 1.6(a) to reveal information about the client, but only to the extent necessary to protect the
client’s interests.

In re Disciplinary Action Against Kuhn, 785 N.W.2d 195 (N.D. 2010)
PER CURIAM.
A hearing panel of the Disciplinary Board recommended attorney Gerald A. Kuhn be suspended
from the practice of law for ninety days and pay the costs of the disciplinary proceeding in the
amount of $2,654.07 for violating N.D.R. Prof. Conduct 1.7(a), Conflict of Interest, and 1.14, Client
With Limited Capacity. Counsel for the Disciplinary Board urges this Court to accept the hearing
panel’s recommendation. Kuhn objects to the hearing panel’s conclusions, arguing they are not
supported by clear and convincing evidence. Determining there is clear and convincing evidence
Kuhn violated N.D.R. Prof. Conduct 1.14, we direct that Kuhn be suspended from the practice of
law for ninety days and that he pay the costs of the disciplinary proceeding in the amount of
$2,654.07.
I.
Kuhn has been licensed to practice law in the courts of North Dakota since July 8, 1974. Shortly
after he started his practice, he began to do tax work for Jake Leno. In 2005, Kuhn wrote a will for
Jake Leno. In that will, Jake Leno devised his condominium to his daughter, Kathleen McKinley.
In 2006, McKinley filed a petition for appointment of a guardian/conservator for Jake Leno. The
district court appointed Guardian and Protective Services, Inc. (“GAPS”) as Jake Leno’s temporary
guardian/conservator. The district court also appointed a physician, guardian ad litem, and visitor to
12

meet with Jake Leno and report back to the district court.
The court-appointed physician reported Jake Leno suffered from “Parkinson’s disease with
concurrent adult onset diabetes” and “some short term memory loss,” and indicated Jake Leno
needed full-time care. The guardian ad litem reported she “firmly believe[d] that the proposed ward
needs a guardian.” Jake Leno’s former home health care provider informed the guardian ad litem
Jake Leno “has Parkinson’s disease and dementia of the Alzheimer’s type.” The court-appointed
visitor also recommended Jake Leno needed a guardian/conservator.
At the hearing on the guardianship/conservatorship petition, Kuhn represented Jake Leno’s sons,
Ronald Leno and Randy Leno. Ronald Leno and Randy Leno testified they were willing to serve as
Jake Leno’s guardians/conservators. Jake Leno testified he did not think he needed a
guardian/conservator. The district court found Jake Leno “has a current medical diagnosis of
Parkinson’s disease with adult onset diabetes and exhibits short term memory loss.” The district
court concluded Jake Leno was incapacitated and appointed GAPS full guardian and conservator,
with full control over his place of residence, legal matters, financial matters, and medical treatment.
In 2007, an unidentified person contacted Kuhn’s office and told Kuhn’s receptionist Jake Leno
wanted his will changed. Kuhn testified at the disciplinary hearing that he thought an employee of
GAPS had contacted his office to change the will. However, Kuhn acknowledged he did not contact
GAPS to verify whether one of its employees had called his office. Kuhn learned later one of Jake
Leno’s caregivers had contacted his office. After speaking with Jake Leno, Kuhn drafted a new will
that gave all of Jake Leno’s property, including the condominium, to the three children equally,
instead of devising the condominium solely to McKinley.
Kuhn testified that at the time he wrote the will he “knew [Jake Leno] had been declared
incompetent” and “there was allegations that he had dementia of the Alzheimer’s type.” Kuhn took
two of his employees to Jake Leno’s apartment to act as witnesses as Jake Leno executed the new
will. Kuhn testified at the disciplinary hearing regarding his state of mind:
I was a little uneasy because he was in-under a judicial order that said he was incompetent. So I
questioned him, I questioned his caregiver to ask her how he’s doing. And she said, “Oh, he’s fine.
He knows what’s going on, and, Jake, he knows.” 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, “Now,
are you sure this is what you want to do? This is what’s going to happen.” And he said, “Yes.” So,
I mean, my impression that day was that he was fine.
A year later, McKinley sent a letter to Kuhn protesting his actions regarding Jake Leno’s new will.
Kuhn, as preparer of the will, subsequently filed a petition seeking an order determining the validity
of the will. The district court dismissed the petition, stating, “[T]he guardianship/conservatorship
created for the Ward Jake Leno, granted to the appointed guardian/conservator full authority for all
legal matters on behalf of Jake Leno, effective as of the date of appointment. The attempted
execution of a Will thereafter by the Ward Jake Leno is therefore without legal authority and
therefore invalid.” Kuhn did not appeal the district court’s order.
In 2009, counsel for the Disciplinary Board filed a petition alleging Kuhn had violated N.D.R. Prof.
Conduct 1.2(a), Scope of Representation and Allocation of Authority Between Client and Lawyer;
1.4(a)(2) and (b), Communication; 1.7(a) and (c), Conflict of Interest; and 1.14, Client With Limited
13

Capacity, by his actions regarding Jake Leno’s guardianship/conservatorship hearing and second
will. The allegations in the Petition for Discipline of misconduct assert a violation of N.D.R. Prof.
Conduct 1.7 (a) and (c) which provide that a lawyer shall not represent a client if the lawyer’s ability
to consider, recommend, or carry out a course of action on behalf of the client will be adversely
affected by the lawyer’s responsibilities to another client, and a lawyer shall not represent a client if
the representation of that client might be adversely affected by the lawyer’s responsibilities to
another client, in that Kuhn represented Ronald Leno and Randy Leno at the
guardianship/conservatorship hearing and thereafter drafted a new will for Jake Leno, purportedly
on Jake Leno’s behalf, which favored the interests of Ronald Leno and Randy Leno.
The allegations in the Petition for Discipline of misconduct assert a violation of N.D.R. Prof.
Conduct 1.14, Comment 5
which provides that if the client has an appointed representative, the lawyer
should ordinarily look to the representative for decisions on behalf of the client,
in that Kuhn prepared a new will for Jake Leno without having first looked to
Guardian & Protective Services, Inc., as the court-appointed guardian and
conservator of Jake Leno, for decision-making authority to make a new will.
The hearing panel found “Kuhn’s testimony that he believed that GAPS was aware of Jake Leno’s
desire to make a new will is not credible.” The hearing panel concluded Kuhn had violated N.D.R.
Prof. Conduct (a), Conflict of Interest, because he:
Represented Ronald and Randy, who were seeking appointment as
guardians/conservators over Kuhn’s long-time client, Jake, and then drafted a
new will for Jake, which favored the interests of Ronald and Randy, after Kuhn
had represented Ronald and Randy at the guardianship/conservatorship hearing
and after Jake had been judicially declared incapacitated.
The hearing panel also concluded Kuhn violated N.D.R. Prof. Conduct 1.14, Client With Limited
Capacity, when he “prepared a new will for Jake without communicating with or securing decisionmaking authority from GAPS, the court-appointed guardian and conservator with full authority over
Jake’s legal matters.” In recommending discipline, the hearing panel considered the following
aggravating factors:
Standard 9.22(a), N.D. Stds. Imposing Lawyer Sanctions, a prior disciplinary offense;
Standard 9.22(c), a pattern of misconduct;
Standard 9.22(h), vulnerability of the victim, and
Standard 9.22(I), substantial experience in the practice of law.
The hearing panel considered as a mitigating factor Standard 9.32(e), “full and free disclosure to
disciplinary board or cooperative attitude toward proceedings.” N.D. Stds. Imposing Lawyer
Sanctions 9.32(e). The hearing panel considered suspension the most appropriate sanction under
N.D. Stds. Imposing Lawyer Sanctions 4.32 and 8.2 and recommended Kuhn be suspended from
the practice of law for ninety days and pay the costs of the disciplinary proceeding in the amount of
$2,654.07.
Kuhn subsequently filed an objection to the hearing panel’s report. Kuhn objected to the hearing
14

panel’s finding that his testimony was not credible. He also objected to the hearing panel’s
conclusions that he had violated N.D.R. Prof. Conduct 1.7(a) and 1.14.
II.
This Court reviews disciplinary proceedings de novo on the record. Disciplinary Board v. Askew, 2010
ND 7, 776 N.W.2d 816 (citing Disciplinary Board v. Light, 2009 ND 83, 765 N.W.2d 536). Counsel for
the Disciplinary Board must prove each alleged violation by clear and convincing evidence, which
means the trier of fact must be reasonably satisfied with the facts the evidence tends to prove and
thus be led to a firm belief or conviction. Id. “We give due weight to the findings, conclusions, and
recommendations of the Disciplinary Board, but we do not act as a mere rubber stamp for the
Board.” Id.
A.
Rule 1.7(a) of the North Dakota Rules of Professional Conduct states, “A lawyer shall not represent
a client if the lawyer’s ability to consider, recommend, or carry out a course of action on behalf of
the client will be adversely affected by the lawyer’s responsibilities to another client or to a third
person, or by the lawyer’s own interests.” The hearing panel concluded Kuhn violated the rule when
he:
Represented Ronald and Randy, who were seeking appointment as
guardians/conservators over Kuhn’s long-time client, Jake, and then drafted a
new will for Jake, which favored the interests of Ronald and Randy, after Kuhn
had represented Ronald and Randy at the guardianship/conservatorship hearing
and after Jake had been judicially declared incapacitated.
Kuhn argues the hearing panel’s conclusion is not supported by clear and convincing evidence. He
asserts no conflict existed because he did not represent Jake Leno at the time of the
guardianship/conservatorship hearing, and he did not represent Ronald Leno and Randy Leno at
the time Jake Leno made his second will. Counsel for the Disciplinary Board did not allege Kuhn
had violated N.D.R. Prof. Conduct 1.9, Duties to Former Client. Rather, counsel for the
Disciplinary Board argues clear and convincing evidence shows Kuhn’s alternating representation of
Jake Leno and his sons created a conflict of interest under N.D.R. Prof. Conduct 1.7(a).
The record does not include clear and convincing evidence Jake Leno was Kuhn’s client at the time
of the guardianship/conservatorship hearing. The record indicates Kuhn did tax work for Jake Leno
multiple times since 1974 and drafted a will for him in 2005. The record does not explain the course
of dealing between Kuhn and Jake Leno; whether Jake Leno hired Kuhn on retainer or whether they
entered into a new contract each time Jake Leno requested Kuhn perform a task. Without such an
explanation, Jake Leno’s status as a current or former client of Kuhn is unclear. See Restatement
(Third) of the Law Governing Lawyers § 31(2)(e) (2000) (explaining the relationship between a
lawyer and a client “ends as provided by contract or because the lawyer has completed the
contemplated services”). The record also does not include an explanation of Jake Leno’s
understanding of his professional relationship with Kuhn. See Restatement (Third) of the Law
Governing Lawyers §18(2) (2000)(stating a contract between a lawyer and a client should be
construed “as a reasonable person in the circumstances of the client would have construed it”). In
examining the allegations in the petition for discipline and the findings of the hearing panel we are
15

uncertain as to the client relationships that existed at the times the hearing panel found the
violations to have occurred. Rule 1.7(a) prohibits a lawyer from representing a client if it will
adversely affect the lawyer’s responsibilities to another client. The rule does not prohibit all
alternating representation but appears to assume a client relationship at the time of the violation.
Without clear and convincing evidence Jake Leno was Kuhn’s client at the time of the
guardianship/conservatorship hearing, the hearing panel’s conclusion that Kuhn violated N.D.R.
Prof. Conduct 1.7 (a), Conflict of Interest, is not supported by the record.
B.
Rule 1.14 of the North Dakota Rules of Professional Conduct states, in pertinent part:
(a) When a client’s capacity to make adequately considered decisions in connection with a
representation is limited, whether because of minority, mental impairment, or for some other
reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship
with the client.
(b) When the lawyer reasonably believes that the client has limited capacity, is at risk of substantial
physical, financial, or other harm unless action is taken, and the client cannot adequately act in the
client’s own interest, the lawyer may take reasonably necessary protective action, including
consulting with individuals or entities that have the ability to take action to protect the client and,
in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.
Comment 5 of the rule states, “If the client has an appointed representative, the lawyer should
ordinarily look to the representative for decisions on behalf of the client. The lawyer should be
cognizant of the extent of the powers and duties conferred upon the client’s appointed
representative.” N.D.R. Prof. Conduct 1.14, comment 5. The hearing panel concluded Kuhn
violated Rule 1.14 when he “prepared a new will for Jake without communicating with or securing
decision-making authority from GAPS, the court-appointed guardian and conservator with full
authority over Jake’s legal matters.”
Kuhn argues he did not violate Rule 1.14 because he was abiding by his client’s wishes. Kuhn cites
Comment 3 of Rule 1.14:
The fact that a client is a minor or has limited capacity does not diminish the
lawyer’s obligation to treat the client with attention and respect. Even if the
person has an appointed representative, the lawyer should as far as possible
accord the represented person the status of client, particularly in maintaining
communication. Appointed representatives include guardians ad litem,
conservators, guardians, individuals appointed in a durable power of attorney or
in an advanced health care directive.
Kuhn argues he was fulfilling his duty to give Jake Leno attention and respect when he drafted the
new will.
Kuhn concedes he had a responsibility to communicate with Jake Leno’s guardian/conservator, but
Kuhn testified he believed he was acting with the consent of GAPS. The hearing panel found this
testimony was not credible. “[W]e defer to the hearing panel’s findings on the credibility of a
16

witness, because the hearing panel has the opportunity to observe the witness’s demeanor and hear
the witness testify.” Askew, 2010 ND 7, 9, 776 N.W.2d 816 (citing Disciplinary Board v. Johnson, 2007
ND 203, 743 N.W.2d 117).
Counsel for the Disciplinary Board cites North Dakota Ethics Opinion No. 09-03. In that opinion,
the requesting attorney represented a criminal defendant who had been declared incapacitated and
had a guardian with full authority over legal matters. N.D. Ethics Opinion 09-03 at 1. The requesting
attorney asked the ethics committee of the State Bar Association of North Dakota whether he was
obligated to communicate with the guardian against his client’s wishes, and whether he was obligated
to communicate with the guardian regarding entry of pleas, waiver of jury trial, or whether his client
would testify. Id. The ethics committee cited favorably the Massachusetts Supreme Court’s opinion
in Guardianship of Hocker, 439 Mass. 709, 791 N.E.2d 302 (2003). Id. at 5-6. The Massachusetts
Supreme Court stated:
When a person is adjudicated incompetent ... the necessary effect ... is that the
ward is in law ... incapable of taking care of himself, as to all the world. The
permanent guardian stands in the place of the ward in making decisions about
the ward’s well-being, and the guardian is held to high standards of fidelity in
exercising this authority for the ward’s benefit. To be sure, an adjudication of
incompetency ... does not obviate the need for a guardian or judge to consult a
ward’s feelings or opinions on a matter concerning his care. It does not make the
ward any less worthy of dignity or respect in the eyes of the law than a
competent person. It does not deprive the ward of fundamental liberty interests.
But the rights and interests of one adjudicated to be incompetent must of
necessity and for the benefit or advantage of the ward, often be vindicated in a
manner different from that of the mentally competent.
Id. (quoting Hocker, 791 N.E.2d at 307) (internal quotes and citations omitted). The ethics committee
concluded the requesting attorney was ethically obligated to communicate with his client’s guardian,
but that it was a legal question beyond the committee’s purview whether the guardian or the client
had the authority to make decisions regarding a plea, waiver of jury trial, or whether the client would
testify. Id. at 8.
The record shows Kuhn knew Jake Leno had been declared incapacitated and GAPS had been
named his guardian with full authority over his legal matters. Kuhn was present at the guardianship
hearing. He reviewed all the documents indicating Jake Leno suffered from Parkinson’s disease and
short-term memory loss. He concedes it was his responsibility to communicate with Jake Leno’s
guardian. He failed to meet this responsibility, however. Kuhn’s understandable desire to give his
client attention and respect does not overcome Jake Leno’s incapacity to make legal decisions on his
own behalf. Kuhn did not look to Jake Leno’s appointed representative, as required by N.D.R. Prof.
Conduct 1.14, comment 5. Kuhn persisted in executing a will that was invalid because of Jake
Leno’s incapacity. Furthermore, we do not ignore the fact the second will drafted by Kuhn
benefitted Ronald Leno and Randy Leno, Kuhn’s clients at the guardianship/conservatorship
hearing. Clear and convincing evidence indicates Kuhn violated N.D.R. Prof. Conduct 1.14.
The hearing panel considered suspension to be the appropriate sanction under Standard 4.32 of the
North Dakota Standards for Imposing Lawyer Sanctions. Standard 4.32 states, “Suspension is
generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a
17

client the possible effect of that conflict, and causes injury or potential injury to a client.” In light of
our determination that clear and convincing evidence does not exist to prove Kuhn violated N.D.R.
Prof. Conduct 1.7, the proper sanction is more appropriately considered under Standards 6.22 and
8.2.
Standard 6.22 states, “Suspension is generally appropriate when a lawyer knows that he or she is
violating a court order or rule, and causes injury or potential injury to a client or a party, or causes
interference or potential interference with a legal proceeding.” The Standards define “knowledge” as
“the conscious awareness of the nature or attendant circumstances of the conduct but without the
conscious objective or purpose to accomplish a particular result.” The record indicates Kuhn was
present at the guardianship/conservatorship hearing, heard all the testimony, and reviewed all the
exhibits. He knew GAPS had been declared Jake Leno’s full guardian/conservator with authority
over legal matters. Despite this knowledge, Kuhn drafted a will for Jake Leno without receiving
permission or authorization from GAPS, thus violating the order establishing GAPS as Jake Leno’s
guardian/conservator. Suspension is the appropriate sanction under Standard 6.22.
The hearing panel determined suspension to be an appropriate sanction under Standard 8.2, which
states, “Suspension is generally appropriate when a lawyer has been reprimanded for the same or
similar misconduct and engages in further similar acts of misconduct that cause injury or potential
injury to a client, the public, the legal system, or the profession.” Kuhn has previously consented to
discipline. In 2002, Kuhn served as guardian ad litem for a ward. The hearing panel concluded Kuhn
violated N.D.R. Prof. Conduct 1.4(b), Communication, when he failed to advise parties to a real
estate transaction that the ward had a guardian ad litem and evidence indicated he was incapacitated.
The Board also found Kuhn violated N.D.R. Prof. Conduct 1.7(a) and (c), Conflict of Interest, when
he provided legal advice to the parties with regard to the real estate transaction. Kuhn consented to a
reprimand from the hearing panel for his violations. Under Standard 8.2, suspension is the
appropriate sanction.
III.
On the basis of the record, we reject the hearing panel’s finding that Kuhn violated N.D.R. Prof.
Conduct 1.7(a), Conflict of Interest, and accept the hearing panel’s finding that Kuhn clearly and
convincingly violated N.D.R. Prof. Conduct 1.14, Client With Limited Capacity. We order Kuhn be
suspended from the practice of law for ninety days, effective August 1, 2010, and that he pay the
costs of the disciplinary proceeding in the amount of $2,654.07.
Notes, Problems, and Questions
1. Rule 1.14 requires an attorney to respect and protect his or her client. Even though the client’s
capacity may be diminished in some way, the attorney is not supposed to treat the client like a child.
The rule requires a balanced approach. The attorney has to be mindful of the client’s impairment.
Nonetheless, the attorney still has to reasonably accommodate the client’s impairment so they can
maintain a normal attorney-client relationship. The diminished client is entitled to all of the rights
and responsibilities of any other client. If the client is unable to meet those responsibilities, the
attorney is duty-bound to seek assistance for the client.
2. In the Kuhn case, the attorney prepared a will for a man who had been declared mentally
18

incompetent by a court without bothering to contact the man’s guardian. Kuhn did not appear to
benefit from his client’s will. Thus, his actions were probably not motivated by a desire to take
advantage of the client. However, he was sanctioned because his actions did not meet the
reasonableness threshold. Might the outcome of the case have been different if the attorney had not
known about the guardianship?
3. An attorney met with John Wilson, an 81 year old man, to discuss preparing a testamentary trust.
At the initial meeting, John gave the attorney a $1000 check for his retainer fee. When the attorney
took the check to John’s bank to cash it, the cashier told him that John did not have enough money
in his account to cover the amount of the check. The attorney’s shock showed on his face. In
response, the cashier said, “Over the last few months, Mr. Wilson has taken large amount of money
out of his account. He comes in at least twice a week to make a withdrawal. Then, he goes to the
parking lot across the street and hands the money to strangers. He hasn’t been right since he had his
stroke.” What, if anything, is the attorney ethically required to do based upon his conversation with
the cashier? If he is paid for his services, should he draft the will?
1.6

Duty to Third Parties

A will and other testamentary documents speak at death. Thus, by the time the estate
planning attorney’s error is discovered, the client who contracted to have the will prepared is dead.
This limits the pool of persons who can sue the attorney for malpractice. Future estate planning
attorneys should not take any solace from that fact. Malpractice cases against estate planning
attorneys have increased since courts have relaxed the privity requirements and permitted suits by
third parties.
1.6.1

The Personal Representative

Estate of Schneider v. Finmann, 933 N.E.2d 718 (N.Y. 2010)
JONES, J.
At issue in this appeal is whether an attorney may be held liable for damages resulting from negligent
representation in estate tax planning that causes enhanced estate tax liability. We hold that a personal
representative of an estate may maintain a legal malpractice claim for such pecuniary losses to the
estate.
The complaint alleges the following facts. Defendants represented decedent Saul Schneider from at
least April 2000 to his death in October 2006. In April 2000, decedent purchased a $1 million life
insurance policy Over several years, he transferred ownership of that property from himself to an
entity of which he was principal owner, then to another entity of which he was principal owner and
then, in 2005, back to himself. At his death in October 2006, the proceeds of the insurance policy
were included as part of his gross taxable estate. Decedent’s estate commenced this malpractice
action in 2007, alleging that defendants negligently advised decedent to transfer, or failed to advise
decedent not to transfer, the policy which resulted in an increased estate tax liability.
Supreme Court granted defendants’ motion to dismiss the complaint for failure to state a cause of
action. The Appellate Division affirmed (60 A.D.3d 892, 876 N.Y.S.2d 121 [2009]), holding that, in
19

the absence of privity, an estate may not maintain an action for legal malpractice. We now reverse
and reinstate plaintiff’s claim.
Strict privity, as applied in the context of estate planning malpractice actions, is a minority rule in the
United States. In New York, a third party, without privity, cannot maintain a claim against an
attorney in professional negligence, “absent fraud, collusion, malicious acts or other special
circumstances” (Estate of Spivey, 138 A.D.2d 563, 564, 526 N.Y.S.2d 145[2d Dept.1988]). Some
Appellate Division decisions, on which the Appellate Division here relied, have applied strict privity
to estate planning malpractice lawsuits commenced by the estate’s personal representative and
beneficiaries alike (Deeb v. Johnson, 170 A.D.2d 865, 566 N.Y.S.2d 688 [3d Dept. 1991]; Spivey, 138
A.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
Dept. 1986]; Rossi v. Boeher, 116 A.D.2d 636, 498 N.Y.S.2d 636, 498 N.Y.S.2d 318 [2d Dept.1986] ).
This rule effectively protects attorneys from legal malpractice suits by indeterminate classes of
plaintiffs whose interests may be at odds with the interests of the client-decedent. However, it also
leaves the estate with no recourse against an attorney who planned the estate negligently.
We now hold that privity, or a relationship sufficiently approaching privity, exists between the
personal representative of an estate and the estate planning attorney. We agree with the Texas
Supreme Court that the estate essentially “ ‘stands in the shoes’ of a decedent” and, therefore, “has
the capacity to maintain the malpractice claim on the estate’s behalf” (Belt v. Oppenheimer, Blend,
Harrison & Tate, Inc., 192 S.W.3d 780, 787 [Tex.2006]). The personal representative of an estate
should not be prevented from raising a negligent estate planning claim against the attorney who
caused harm to the estate. The attorney estate planner surely knows that minimizing the tax burden
of the estate is one of the central tasks entrusted to the professional. Moreover, such a result
comports with EPTL 11-3.2(b), which generally permits the personal representative of a decedent to
maintain an action for “injury to person or property” after that person’s death.
Despite the holding in this case, strict privity remains a bar against beneficiaries’ and other thirdparty individuals’ estate planning malpractice claims absent fraud or other circumstances. Relaxing
privity to permit third parties to commence professional negligence actions against estate planning
attorneys would produce undesirable results—uncertainty and limitless liability. These concerns,
however, are not present in the case of an estate planning malpractice action commenced by the
estate’s personal representative.
Accordingly, the order of the Appellate Division should be reversed, with costs, and defendants’
motion to dismiss the complaint denied.
1.5.2

The Intended Beneficiary

Sisson v. Jankowski, 809 A.2d 1265 (N.H. 2002)
BROCK, C.J.
The United States District Court for the District of New Hampshire (McAuliffe, J.) has certified the
following question of law, see Sup.Ct.R. 34:
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Whether, under New Hampshire law and the facts as pled in plaintiff’s verified
complaint, an attorney’s negligent failure to arrange for his or her client’s timely
execution of a will and/or an attorney’s failure to provide reasonable
professional advice with respect to the client’s testamentary options (e.g., the
ability to cure a draft will’s lack of a contingent beneficiary clause by simply
inserting a hand-written provision), which failure proximately caused the client to
die intestate, gives rise to a viable common law claim against that attorney by an
intended beneficiary of the unexecuted will.
For the reasons stated below, we answer the certified question in the negative.
Because this question arose in the context of a motion to dismiss and absent a copy of the plaintiff’s
complaint, we assume the truth of the factual allegations recited by the court in its certification
order, and construe all inferences in the light most favorable to the plaintiff. Hungerford v. Jones, 143
N.H. 208, 209, 722 A.2d 478 (1998).
In December 1998, the decedent, Dr. Warren Sisson, retained the defendants, Attorney Jankowski
and her law firm, Wiggin & Nourie, P.A., to prepare his will and other estate planning documents.
According to the plaintiff, Thomas K. Sisson, the decedent informed Attorney Jankowski that he
was suffering from cancer, did not want to die intestate, and, therefore, wished to prepare a will that
would pass his entire estate to the plaintiff, his brother. The decedent told Attorney Jankowski that
he was particularly interested in ensuring that none of his estate pass to his other brother, from
whom he was estranged. The record, however, does not reflect any request by the decedent that the
will be executed by a date certain.
Attorney Jankowski prepared a will and other estate planning documents and, in mid-January 1999,
mailed them to the decedent for his review and execution. The decedent was injured in mid-January,
however, and, therefore, did not receive the documents until January 22, 1999, when a neighbor
delivered them to him at a nursing home. Three days later, the plaintiff contacted Attorney
Jankowski to tell her that the decedent wanted to finalize his estate planning documents quickly
because of his deteriorating condition.
On February 1, 1999, Attorney Jankowski and two other law firm employees visited the decedent in
the nursing home to witness his execution of the estate planning documents. The decedent executed
all of the documents except his will. After Attorney Jankowski asked him whether the will should
include provisions for a contingent beneficiary, the decedent expressed his desire to insert such a
clause, thereby providing that his estate would pass to a charity in the event the plaintiff predeceased
him.
According to the plaintiff, the decedent’s testamentary intent was clear as of the end of the February
1, 1999 meeting: the unexecuted will accurately expressed his intent to pass his entire estate to the
plaintiff. Nevertheless, rather than modifying the will immediately to include a hand-written
contingent beneficiary clause, modifying it at her office and returning later that day for the
decedent’s signature, or advising the decedent to execute the will as drafted to avoid the risk of dying
intestate and later drafting a codicil, Attorney Jankowski left without obtaining the decedent’s
signature to the will.
Three days later, Attorney Jankowski returned with the revised will. The decedent did not execute it,
21

however, because Attorney Jankowski did not believe he was competent to do so. She left without
securing his signature and told him to contact her when he was ready to sign the will.
The plaintiff twice spoke with a Wiggin & Nourie attorney “to discuss Attorney Jankowski’s inaction
regarding the will.” The attorney told him that he had spoken to other firm members about the
situation. Nevertheless, after February 4, 1999, Attorney Jankowski made no attempt to determine
whether the decedent regained sufficient testamentary capacity to execute his will.
The decedent died intestate on February 16, 1999. His estate did not pass entirely to the plaintiff as
he had intended, but instead was divided among the plaintiff, the decedent’s estranged brother, and
the children of a third (deceased) brother. The plaintiff brought legal malpractice claims against the
defendants, alleging that they owed him a duty of care because he was the intended beneficiary of
their relationship with the decedent.
For the purposes of this certified question, there is no dispute as to the decedent’s testamentary
intent: he wanted to avoid dying intestate and to have his entire estate pass to the plaintiff. Nor does
the plaintiff claim that the defendants frustrated the decedent’s intent by negligently preparing his
will. Rather, the plaintiff asserts that the defendants were negligent because they failed to have the
decedent execute his will promptly and to advise him on February 1 of the risk of dying intestate if
he did not execute the draft presented at that meeting.
The narrow question before us is whether the defendants owed the plaintiff a duty of care to ensure
that the decedent executed his will promptly. Whether a duty exists is a question of law. Hungerford,
143 N.H. at 211, 722 A.2d 478. A duty generally arises out of a relationship between the parties. See
MacMillan v. Scheffy, 147 N.H. 362, 364, 787 A.2d 867 (2001). While a contract may supply the
relationship, ordinarily the scope of the duty is limited to those in privity of contract with one
another. Id. We have, in limited circumstances, recognized exceptions to the privity requirement
where necessary to protect against reasonably foreseeable harm. See Hungerford, 143 N.H. at 211, 722
A.2d 478. “[N]ot every risk of harm that might be foreseen gives rise to a duty,” however. Id.
(quotation and brackets omitted). “[A] duty arises if the likelihood and magnitude of the risk
perceived is such that the conduct is unreasonably dangerous.” Id. (quotation and brackets omitted).
“When determining whether a duty is owed, we examine the societal interest involved, the severity
of the risk, the likelihood of the occurrence, the relationship between the parties, and the burden
upon the defendant.” Id. Ultimately, whether to impose a duty of care “rests on a judicial
determination that the social importance of protecting the plaintiff’s interest outweighs the
importance of immunizing the defendant from extended liability.” Walls v. Oxford Management Co.,
137 N.H. 653, 657, 633 A.2d 103 (1993).
In Simpson v. Calivas, 139 N.H. 1, 4, 650 A.2d 318 (1994), we recognized an exception to the privity
requirement with respect to a will beneficiary and held that an attorney who drafts a testator’s will
owes a duty to the beneficiaries to draft the will non-negligently. In Simpson, a testator’s son sued the
attorney who drafted his father’s will, alleging that the will failed to incorporate his father’s actual
intent. Id. at 3, 650 A.2d 318. The will left all real estate to the plaintiff, except for a life estate in
“our homestead,” which was left to the plaintiff’s stepmother. Id. The probate litigation concerned
whether “our homestead” referred to all of the decedent’s real property, including a house, over one
hundred acres of land and buildings used in the family business, or only to the house, and perhaps
limited surrounding acreage. Id. The plaintiff argued that the decedent intended to leave him the
22

buildings used in the family business and the bulk of the surrounding land in fee simple. Id. at 4, 650
A.2d 318. The plaintiff lost the will construction action, and then brought a malpractice action
against the drafting attorney, arguing that the decedent’s will did not accurately reflect his intent. Id.
at 3, 650 A.2d 318.
We held that the son could maintain a contract action against the attorney, as a third-party
beneficiary of the contract between the attorney and his father, and a tort action, under a negligence
theory. Id. at 7, 650 A.2d 318. With respect to the negligence claim, we concluded that, “although
there is no privity between a drafting attorney and an intended beneficiary, the obvious foreseeability
of injury to the beneficiary demands an exception to the privity rule.” Id. at 5-6, 650 A.2d 318.
Simpson is consistent with the prevailing rule that a will beneficiary may bring a negligence action
against an attorney who failed to draft the will in conformity with the testator’s wishes. (citations
omitted)
Simpson is not dispositive of the certified question, however. The duty in Simpson was to draft the will
non-negligently, while the alleged duty here is to ensure that the will is executed promptly. Courts in
several jurisdictions have declined to impose a duty of care where the alleged negligence concerns
the failure to have the will executed promptly. (citations omitted) The majority of courts confronting
this issue have concluded that imposing liability to prospective beneficiaries under these
circumstances would interfere with an attorney’s obligation of undivided loyalty to his or her client,
the testator or testatrix.
In Krawczyk v. Stingle, 208 Conn. 239, 543 A.2d 733 (1988), for instance, the decedent had met with
his attorney approximately ten days before he died and informed her that he was soon to have open
heart surgery and wanted to arrange for the disposition of his assets without going through probate.
Accordingly, he directed the attorney to prepare two trust documents for his execution. Id. at 734.
Completion of the trust documents was delayed, and by the time they were ready for execution, the
decedent was too ill to see his attorney. He died without signing them. Id.
The Connecticut Supreme Court concluded that imposing liability to third parties for negligent delay
in executing estate planning documents would contravene a lawyer’s duty of undivided loyalty to the
client. Id. at 736. As the court explained:
Imposition of liability would create an incentive for an attorney to exert pressure
on a client to complete and execute estate planning documents summarily. Fear
of liability to potential third party beneficiaries would contravene the attorney’s
primary responsibility to ensure that the proposed estate plan effectuates the
client’s wishes and that the client understands the available options and the legal
and practical implications of whatever course of action is ultimately chosen.
These potential conflicts of interest are especially significant in the context of the
final disposition of a client’s estate, where the testator’s testamentary capacity and
the absence of undue influence are often central issues.
Id.
The Massachusetts Supreme Judicial Court has similarly reasoned that:
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[I]n preparing a will[,] attorneys can have only one client to whom they owe a
duty of undivided loyalty. A client who engages an attorney to prepare a will may
seem set on a particular plan for the distribution of her estate.... It is not
uncommon, however, for a client to have a change of heart after reviewing a
draft will.... If a duty arose as to every prospective beneficiary mentioned by the
client, the attorney-client relationship would become unduly burdened. Attorneys
could find themselves in a quandary whenever the client had a change of mind,
and the results would hasten to absurdity. The nature of the attorney-client
relationship that arises from the drafting of a will necessitates against a duty
arising in favor of prospective beneficiaries.
Miller, 725 N.E.2d at 550-51 (quotation, ellipses and brackets omitted).
We have recently reaffirmed the importance of an attorney’s undivided loyalty to a client. See
MacMillian, 147 N.H. at 365, 787 A.2d 867. In MacMillan, we declined to extend Simpson to permit
the buyers in a real estate transaction to sue the sellers’ attorney who prepared a deed, which failed
to include a restrictive covenant. We ruled that there was no evidence that the primary purpose of
employing the attorney to draft the deed was to benefit or influence the buyers. Id. Accordingly, we
held that the buyers were not the intended beneficiaries of the attorney’s services. Id. Moreover, we
held that it was imprudent to impose liability upon the attorney under these circumstances because
doing so would “interfere with the undivided loyalty which the attorney owes his client and would
detract from achieving the most advantageous position for his client.” Id. (quotation omitted).
Both parties cite compelling policy considerations to support their arguments. The plaintiff asserts
that there is a strong public interest in ensuring that testators dispose of their property by will and
that recognizing a duty of an attorney “to arrange for the timely execution of a will” will promote
this public interest. He further argues that “[t]he risk that an intended beneficiary will be deprived of
a substantial legacy due to delay in execution of testamentary documents” requires the court to
recognize the duty he espouses. The defendants counter that recognizing a duty to third parties for
the failure to arrange for the timely execution of a will potentially would undermine the attorney’s
ethical duty of undivided loyalty to the client.
After weighing the policy considerations the parties identify, we conclude that the potential for
conflict between the interests of a prospective beneficiary and a testator militates against recognizing
a duty of care. “It is the potential for conflict that is determinative, not the existence of an actual
conflict.” Miller, 725 N.E.2d at 550. Whereas a testator and the beneficiary of a will have a mutual
interest in ensuring that an attorney drafts the will non-negligently, a prospective beneficiary may be
interested in the will’s prompt execution, while the testator or testatrix may be interested in having
sufficient time to consider and understand his or her estate planning options. As the Massachusetts
Supreme Judicial Court recognized:
Confronting a last will and testament can produce complex psychological
demands on a client that may require considerable periods of reflection. An
attorney frequently prepares multiple drafts of a will before the client is
reconciled to the result. The most simple distributive provisions may be the most
difficult for the client to accept.
Id. at 551.
24

Creating a duty, even under the unfortunate circumstances of this case, could compromise the
attorney’s 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
execute their wills summarily, without sufficiently reflecting upon their estate planning options.
On balance, we conclude that the risk of interfering with the attorney’s duty of undivided loyalty to
the client exceeds the risk of harm to the prospective beneficiary. For these reasons, we join the
majority of courts that have considered this issue and hold that an attorney does not owe a duty of
care to a prospective will beneficiary to have the will executed promptly. Accordingly, we answer the
certified question in the negative.
Remanded.
Ethics Exercise One
Attorney Oscar Walker represented Melvin and Gloria Patterson in a real estate transaction. During
the course of that representation, Oscar and Gloria had an affair. A few years later, while
intoxicated, Gloria told Oscar that her daughter, Isabella, was a product of their affair.
A few years later, Oscar ran into Melvin in the parking lot of their health club. At that time, Melvin
asked Oscar if he was legally required to leave his property to his children. In response, Oscar told
Melvin that children did not have a legal right to inherit. A few years later, Gloria filed for divorce
and retained Oscar to represent her in the matter. At that time, Gloria made Oscar promise not to
reveal Isabella's true paternity.
After the divorce was final, Melvin hired an attorney to establish a testamentary trust. Under the
terms of the trust, Melvin left one-third of his property to Isabella, and the other two-thirds to his
son, Damon, who was an attorney. When Melvin passed away, Isabella retained Walker to contest
Melvin's will because of undue influence on the part of Damon.
Ethics Exercise Two
After Curtis Jackson's wife Beatrice died, his only living heirs were his niece Ellen Blackman, and his
nephews Thomas Jackson, Michael Levinson and Justin Powell.
In 2010, Curtis suffered a mild heart attack a few months after his 70th birthday. Ellen urged her
uncle to get one of his attorneys to prepare his will so he could have his affairs in order. However,
Curtis told her he was afraid to think about dying. Finally, Curtis told Ellen that he was ready to get
his affairs in order. Consequently, Ellen set up an appointment for Curtis to meet with her
attorney. At the last minute, Curtis changed his mind and did not attend the meeting. This process
was repeated on at least two occasions.
In 2012, Curtis told Ellen that he was ready to do some estate planning. He asked her to assist him
with the matter. Therefore, Ellen paid her attorney, Paul Johnson, to prepare a will for Curtis. She
25

paid for Johnson's services because she wanted the instruments prepared before her uncle again
changed his mind. At the time he prepared the will, Johnson had been Ellen’s attorney for ten years.
When Curtis passed away in 2015, he had an estate worth over 50 million dollars. Curtis’ will
provided for the following disposition of his estate: half of the estate was left to Ellen, and the other
half of the estate was to be divided between Curtis’ three nephews. The nephews want to set aside
the probate of the will on grounds that, at the time Johnson prepared the will, he was Ellen’s
attorney.
Please address the ethical issues that arise as a consequence of the above scenarios.

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Chapter Two: Intestacy System (Basic Overview)
2.1

Introduction

On April 21, 2016, superstar Prince Roger Nelson died at the age of 57. A few days later, the
media reported that he had died without a will. Prince, an unmarried man, was survived by his
siblings. People were shocked that Prince died intestate because he left a multiple million dollar
estate. The intestacy system controls the distribution of the part of the decedent’s estate that is not
disposed of by will. In addition, the system comes into play when the probate court completely or
partially invalidates the testator’s will. Intestacy statutes may also be germane in cases where courts
have to define terms that are included in validly executed wills and trusts. The main objective of this
chapter is to examine the system that is in place to deal with the property of persons who die
without leaving a plan for the disposition of their estates. Like Prince, a significant number of people
in the United States die intestate. Thus, it is critical for students to have a good understanding of the
laws governing the intestacy system. The intestacy statutes of all fifty states and the District of
Columbia discuss the amount of the decedent’s estate that the surviving spouse has a right to
receive. The options available to the surviving spouse will be discussed in the next chapter. This
chapter analyzes the disposition of the portion of the decedent’s estate that is left after the surviving
spouse has received his or her share. The first part of the chapter deals with distributions to the
decedent’s descendants. The second part explains the interests ancestors, collaterals and others may
have in the decedent’s estate. The most effective way to teach the material contained in this chapter
is to use the problem-solving method. Therefore, the chapter contains mostly problems.
2.2

Distribution Under the Intestacy System

When the legislature created the intestacy system, the primary goal was to establish a system
that would enable the probate court to carry out the decedent’s presumed intent. The presumption is
that, after the surviving spouse has received a portion of the estate, a reasonable person would want
the remainder of his or her assets divided among his or her children. Thus, the probate system
favors legal children.1 Chapters Four, Five and Six explains the definition of a “legal child” for
intestacy purposes.
After the spouse receives his or her elective share, the decedent’s children split his or her
property. If the decedent is a person who never conceived or adopted children, the decedent’s estate
is divided between the decedent’s surviving parent(s). If the decedent is not survived by parents, his
or her estate is distributed to his or her siblings if any survive the decedent. The estate of a person
who dies with no surviving children, parents or siblings goes to that person’s collateral relatives. If a
person’s bloodline has ended, his or her property escheats to the state. I explain the distribution by
telling my students to first look down for children, then look up for parents, and finally to look out
for siblings.

1 For thorough discussion of the inheritance rights of children, please see Browne Lewis, The Inheritance Rights of

Children: Cases and Materials (Carolina Academic Press, 2010).

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2.2.1

Uniform Probate Code § 2-103. Share of Heirs other than Surviving Spouse

Any part of the intestate estate not passing to the decedent’s surviving spouse under Section 2-102,
or the entire intestate estate if there is no surviving spouse, passes in the following order to the
individuals designated below who survive the decedent:
(1)

to the decedent’s descendants by representation;

(2)
if there is no surviving descendant, to the decedent’s parents equally if both survive, or to
the surviving parent;
(3)
if there is no surviving descendant or parent, to the descendants of the decedent’s parents or
either of them by representation;
(4)
if there is no surviving descendant, parent, or descendant of a parent, but the decedent is
survived by one or more grandparents or descendants of grandparents, half of the estate passes to
the decedent’s paternal grandparents equally if both survive, or to the surviving paternal
grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both
are deceased, the descendants taking by representation; and the other half passes to the decedent’s
maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a
grandparent on either the paternal or the maternal side, the entire estates passes to the decedent’s
relatives on the other side in the same manner as the half.
2.3

Descendants

The term “descendant” is broader than the word “child”. For intestacy purposes, it includes
all persons who proceed from the body of the decedent. When a person dies intestate, the estate
goes to his or her lineal descendants. Parents and other ancestors do not have the right to inherit
unless the person does not have any lineal descendants (child, grandchildren, great grandchildren
etc.). Let’s look at some illustrations.
2.3.1

Illustration One
LaToya, a widow, died intestate leaving behind four children, Greta, Malia, Juanita, and
Sasha. LaToya’s estate will be split into four portions because she had four surviving
children and no surviving spouse.

Illustration One shows that it is not complicated to determine the manner in which a
decedent’s property should be divided under the intestacy system. Nonetheless, the formula for
distributing an intestate decedent’s estate can become complex if one or more of the decedent’s
children does not survive the decedent. Under the intestacy system, the decedent’s child(ren)’s
descendants can inherit his or her estate by representation.2 This means that the issue of the
decedent, including his or her grandchildren, great grandchildren etc., represents his or her deceased

2 This term will be explained later in the chapter.

28

children for purposes of the distribution of his or her estate. The next illustration will help the
student visualize this principle.
2.3.2

Illustration Two
Diane died in 1978. She was survived by her husband Clyde and their eight children, Corey,
Gigi, Christopher, Elizabeth, Stephanie, Marcia, Timothy, and Oscar. In 1986, Marcia died
of a massive heart attack while riding a roller coaster. Marcia was survived by her husband,
Jarvis, and her three daughters, Wanda, Ruth and Tracie. When Clyde died in 2000, he was
survived by seven of his children, Marcia’s husband and Marcia’s three daughters.
Clyde’s estate would be divided into eight portions because that is the number of his original
children. Each of Clyde’s surviving children would receive a one-eighth share of his estate.
The share of the estate that would have gone to Marcia, the child who predeceased Clyde,
would be divided between her three daughters. As a result, Clyde’s estate would be
distributed as follows: Corey (1/8), Gigi (1/8), Christopher (1/8), Elizabeth (1/8), Stephanie
(1/8), Timothy (1/8), Oscar (1/8), Wanda (1/24), Ruth (1/24) and Tracie (1/24). Since most
intestacy statutes exclude sons-in-law and daughters-in-law, Jarvis, Marcia’s husband, would
not be entitled to receive any part of Clyde’s estate.

In all jurisdictions, the intestacy system allows descendants of the decedent to inherit by
representation. Consequently, Marcia’s daughters would have the right to receive her share of
Clyde’s estate. The definition of “taking by representation” varies from state to state. The shares that
the descendants receive depend upon which one of the three commonly used methods of
representation that is applied. The main difference in each method is where the division into portion
occurs. The decedent’s estate may be divided at the generational level immediately below the
decedent or the generational level where a live descendant exists. This will be explained in more
detail later in this chapter.
2.3.3

Two Important Rules to Remember

The three systems of representation will be discussed in the next section. In order to fully
comprehend how the decedent’s estate will be divided, it is important to know two rules.
Rule One: The descendants whose parents are living do not receive a share of the decedent’s estate.
Example:
Miguel, a widower, had three children, Juan, Carlos and Isabella. Unfortunately, Miguel lost his son
Carlos in a car accident. Carlos was survived by two children, Manuel and Alejandro. Juan has a son
named Mateo. Isabella had two children, Elena and Joaquin. Miguel died survived by Juan, Isabella,
Manuel, Alejandro, Mateo, Elena and Joaquin.
Explanation:

29

Carlos’ children take his share by representation of their dead father. Miguel’s estate is distributed as
follows: Juan (1/3), Isabella (1/3), Manuel (1/6), and Alejandro (1/6). Manuel and Alejandro split
their father’s share of their grandfather’s estate. Even though they are Miguel’s grandchildren,
Mateo, Elena and Joaquin are not entitled to a portion of Miguel’s estate because their parents
survived Miguel.
Rule Two: Once a blood line dies out, it is ignored in the division of the decedent’s estate.
Example:
Rebecca, a widow, had three children, Noah, Jacob and Ava. Unfortunately, Jacob was killed in an
airplane crash. Jacob did not have any children. Noah had two children, Joshua and Eli. Ava had
three children, Daniel, Caleb and Hannah. When Rebecca died, she was survived by Noah, Ava,
Joshua, Eli, Daniel, Caleb and Hannah.
Explanation:
Rebecca’s estate will be divided into three parts to represent her three original children. Each of
Rebecca’s children is entitled to receive a third of her estate. Since Jacob died without surviving
descendants, his share of Rebecca’s estate will be divided between his siblings, Noah and Ava. Noah
will receive his one third of his mother’s estate plus one sixth of Jacob’s interest in the estate. Thus,
Noah’s interest in Rebecca’s estate will total one-half. Like Noah, Ava will end up receiving one-half
of Rebecca’s estate. To avoid the complex computations, it is easier to ignore Jacob’s interest and to
divide Rebecca’s estate into two shares. You will get the same result using either method.
2.4

The Meaning of Representation

In this chapter, we have mentioned “taking by representation” several times. It is now time
to explain exactly what that means. The definition of “representation” is relevant even when a
person dies with a validly executed will or a testamentary trust. This is the case because those
testamentary documents often refer to property being distributed by “representation”. When
probating the estate, the court will often use the definition of “representation” that is contained in
the intestacy statute.
2.4.1

English per stirpes

This method is also called strict per stirpes because it requires a strict application of the rule.
The decedent’s estate is divided at the generational level directly under the decedent irrespective of
whether or not there is a surviving descendant at that level. Under this system, the estate must be
divided into as many parts as there are living children of the decedent and deceased children who
have descendants living. Each child that dies before the decedent is represented by his or her
surviving children. The children are injected into their parent’s place starting at the first generation
below the decedent.
Example:
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Lauren, a widow, had two children, Jada and Cornell. Unfortunately, Lauren lost her son, Cornell, in
a boating accident. Cornell was survived by one child, Madison. Sadly, a year later, Jada was killed
when her parachute failed to open during an air show. Jada was survived by two children, Aaliyah
and Destiny. Lauren died intestate; she was survived by Madison, Aaliyah and Destiny.
Explanation:
Under this method, Lauren’s estate is divided into two shares at the level of her children. It does not
matter that both of Lauren’s children predeceased her. Madison would receive Cornell’s one-half
share of the estate. Aaliyah and Destiny would split Jada’s one-half share of the estate. Although
they are all her grandchildren, Madison would receive a larger share of the estate. Do you think this
is what Grandmother Lauren would have wanted?
2.4.2

Modern per stirpes

Another name for this method is per capita with representation. Under this approach, if any
children survive the decedent, the decedent’s estate would be distributed in the same way that it
would be under the English per stirpes method. If this scheme is used, the outcome would be
different if all of the decedent’s children predeceased him or her. If the decedent is not survived by
children, the estate would be divided equally between the survivors of the first generation in which
there are living descendants. The partition of the decedent’s estate transpires at the generational level
closest to the decedent where there is at least one surviving descendant. The deceased descendants
at that generation are represented by their descendants.
Example:
Monica, a widower, had four children, Jennifer, Ross, Camille, and Sandra. Jennifer had two
children, Zachery and Molly. Ross had one child, Deanna. Camille had three children, Betsy, Irene,
and Glynn. Sandra had one child, LaNitra. All of Monica’s children predeceased her, and she was
survived by Zachery, Molly, Deanna, Betsy, Irene, Glynn, and LaNitra.
Explanation:
Monica’s estate would be divided at the level where she has at least one survivor. Since all of
Monica’s children predeceased her, her estate would be split at the generation of her grandchildren.
Each grandchild would be treated equally. Thus, Zachery, Molly, Deanna, Betsy, Irene, Glynn, and
LaNitra would each receive a one-seventh share of the estate.
If Monica’s estate was distributed in a jurisdiction that had adopted the English per stirpes approach,
the result would be different. The estate would be divided at the generation closest to Monica
regardless of whether or not she had a surviving child. Thus, Monica’s estate would be split at her
children’s generation. Monica had four children; therefore, her estate would be divided into four
shares. The resulting distribution of her estate would be as follows: Zachery and Molly would split
Jennifer’s one-fourth; Deanna would receive Ross’ one-fourth; Betsy, Irene, and Glynn would split
Camille’s one-fourth; and LaNitra would receive Sandra’s one-fourth.

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Notes and Questions
1. As the above example shows, the Modern per stirpes system treats all of Monica’s grandchildren
equally. If the English per stirpes approach is used, some of Monica’s grandchildren will receive
larger shares than the others. Which distribution do you think Monica would have chosen? What
might be the justification for the Modern per stirpes approach?
2. The Modern per stirpes systems has been adopted by almost half of the jurisdictions in the United
States. From a public policy standpoint, which approach do you think is better?
3. The intestacy system is meant to carry out the decedent’s presumed intent. Which approach do
you think enables the probate court to achieve that objective?
4. The examination of the manner in which the intestacy system treats descendants has been kept
general for the sake of simplicity. It may be more complex to apply the statute of a particular state.
For purposes of this course, the students only need to comprehend the basic underlying principles.
2.4.3

A Case Illustration

The debate about the meaning of “representation” continues. The purpose of the following
case is to demonstrate the difference between the two systems of distribution. The court discusses
three assignments of error. However, only one is relevant to the discussion of intestate distribution.
Thus, the case has been edited accordingly.

In re Estate of Evans, 827 N.W.2d 313 (Neb. App. 2013)
SIEVERS, Judge.
FACTUAL BACKGROUND
The decedent, Donald J. Evans, died intestate on October 2, 2011. At the time of his death, Donald
was domiciled in Wallace, Nebraska. Donald was not married at the time of his death, and he had no
surviving children or issue. Donald’s parents were deceased at the time of his death. Donald had
three brothers, Robert Evans, Stewart Evans, and Frederick Evans, but all three brothers
predeceased Donald. Of the brothers, Robert did not have any children. Stewart had three children:
Susan Evans Olson (Susan), Anna Evans, and Mary C. Evans. Anna predeceased Donald and did
not have any children. Frederick had two children: Ted L. Evans and John Evans. John predeceased
Donald and did not have any children. Thus, Donald was survived by nieces Susan and Mary (via
Stewart) and nephew Ted (via Frederick).
PROCEDURAL BACKGROUND
On March 8, 2012, Ted filed a petition for a formal adjudication of intestacy, a determination of
heirs, and an appointment of a personal representative of Donald’s estate. Ted alleged that a
statement of informal probate was entered on November 1, 2011, appointing Ted and Mary as
copersonal representatives of the estate. Although the appointment does not appear in our record,
their prior appointment as copersonal representatives is an undisputed fact. In his petition, Ted
32

nominated himself as the sole personal representative of the estate and alleged that he had priority
status as an heir entitled to at least 50 percent of the estate as a resident of Nebraska, whereas Susan
and Mary were Colorado residents.
On March 23, 2012, Mary filed an objection and responsive pleading, alleging that Ted was not
entitled to 50 percent of the estate. Mary asked that the court continue its appointment of
copersonal representatives, as entered on November 1, 2011, and that it make a determination as to
the share to which each heir is entitled. Mary did not petition for Ted’s removal as copersonal
representative.
A hearing was held on April 16, 2012, on Ted’s petition for formal adjudication. Ted testified on
direct examination that he believed Donald died without a will. However, on cross-examination, Ted
testified that Donald set up a will in 2010 with a bank, but that Donald tore up the will in September
2011, a month prior to his death. Ted testified that he, along with the bank officer who wrote the
will, was present when Donald tore up his will. Ted testified that Donald also had the bank draw up
a trust, but that he tore the trust document up at the same time he tore up his will. Exhibits 2 and 3,
copies of Donald’s destroyed will and trust, were received into evidence, but are not part of the
requested bill of exceptions. Ted testified that exhibits 2 and 3 were copies of the documents that
Donald had torn up. He also agreed that under the will and trust documents that were torn up, the
estate was to be divided one-third each to Susan, Mary, and Ted. There is no claim in this appeal
that either of such documents is effective.
Ted testified that as copersonal representative, he sent Mary various requests to sign checks to
reimburse Ted for various expenses, including expenses incurred prior to Donald’s death and
expenses for Donald’s funeral. Some of the expenses incurred prior to Donald’s death included
hotel rooms for Ted and his wife to be close to Donald, such as when Donald was in the hospital.
Ted testified that he asked Mary to sign off on a total of $5,600 to $5,700 worth of reimbursements
to him. While Ted did not testify that Mary refused the requests for reimbursements, Mary later
testified that she did in fact refuse such requests. Ted asked the court to appoint him to be the sole
personal representative of Donald’s estate.
Mary testified that a preliminary inventory of Donald’s estate showed a value of $2.9 to $3 million.
Mary testified that Ted sent bills to her and wanted her to sign off on checks so that he could be
paid for various claims that he had filed. Mary testified that she was reluctant to sign because some
of the bills seemed to be duplicative or did not pertain to estate business. Mary also testified that she
did not sign the estate inventory sent to her by Ted’s attorney because she felt there were some
omissions and because she and her attorney were trying to investigate. Mary testified that she had
also not yet signed the paperwork to transfer certain stock to the estate—she stated that she had not
refused to sign the paperwork, but, rather, that she had not signed it yet. She also testified that she
and Ted each proposed a different bank for the estate account. Mary testified that she had no
personal communication with Ted and that they each have an attorney.
Mary testified that she has been an officer-director and coowner of an investment advisory firm in
Denver, Colorado, for the past 20 years. She testified that her firm manages “high, aggressive
growth portfolios” and that they “invest them in securities for high net growth and ultra high net
worth clients.” Mary testified that she holds a securities license as a stock-broker or advisor. Mary
testified that Ted lacks the securities experience needed for an estate as large as Donald’s. While
Mary initially testified that she would like to continue as copersonal representative of the estate, she
33

later verbally asked during her testimony that the court appoint her to be the sole personal
representative or, in the alternative, that the court appoint a neutral third party. Finally, Mary
testified that she objects to Ted’s claim that he is entitled to 50 percent of the estate. She thinks that
the estate should be divided one-third each to Susan, Mary, and Ted.
In its journal entry and order filed on May 31, 2012, the county court found that Donald died
intestate on October 2, 2011. The court found that prior to his death, Donald executed a last will
and testament and the “Donald J. Evans Revocable Trust” (exhibits 2 and 3), but that the
documents were allegedly destroyed by Donald. Therefore, the court determined that the estate
would be divided in accordance with the provisions of intestate succession as set out in Neb. Rev.
Stat. § 30-2303 (Reissue 2008). The court stated that in accordance with § 30-2303(5) relative to
intestate succession, “ ‘if there is no surviving issue, parent, issue of a parent, grandparent or issue of
a grandparent, the entire estate passes to the next of kin in equal degree.’ ” The court determined that
Susan, Mary, and Ted were Donald’s “ ‘next of kin’ ” and that each heir stands in equal degree of
kinship to the other. The court specifically found and ordered that under § 30-2303, Susan, Mary,
and Ted shall each inherit one-third of the entire estate.
The court noted that Ted and Mary had previously accepted appointment as copersonal
representatives. However, the court found that Ted and Mary were “annoyed” with each other, that
communication between them had in essence stopped, and that any interaction had been handled
through their respective attorneys. The court found that the conflict substantially hinders the
administration of the estate and removed them both as copersonal representatives. The court, citing
Neb. Rev. Stat. §§ 30-2412(b)(2) and 30-2456 (Reissue 2008), appointed Steven P. Vinton, an
attorney, as successor personal representative. Ted appeals.
ASSIGNMENTS OF ERROR
Ted claims that the trial court erred in (1) determining that the estate passes to Susan, Mary, and Ted
in equal shares; (2) removing Ted as a personal representative; and (3) appointing a successor
personal representative who does not have priority for appointment.
STANDARD OF REVIEW
In the absence of an equity question, an appellate court, reviewing probate matters, examines for
error appearing on the record made in the county court. In re Estate of Cooper, 275 Neb. 322, 746
N.W. 2d. 663 (2008). On a question of law, however, an appellate court is obligated to reach a
conclusion independent of the determination reached by the court below. Id.
ANALYSIS
Division of Donald’s Estate.
Ted’s first assignment of error is that the trial court erred in determining that the estate passes to the
next of kin in equal shares. All of the parties, including Ted, Mary, and Vinton, agree that § 30-2303
applies, which statute provides:
The part of the intestate estate not passing to the surviving spouse under section 30–2302, or the
entire intestate estate if there is no surviving spouse, passes as follows:
34

(1) to the issue of the decedent; if they are all of the same degree of kinship to the decedent they
take equally, but if of unequal degree, then those of more remote degree take by representation;
(2) if there is no surviving issue, to his parent or parents equally;
(3) if there is no surviving issue or parent, to the issue of the parents or either of them by
representation;
(4) if there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or
more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents
if both survive, or to the surviving paternal grandparent, or to the issue of the paternal
grandparents if both are deceased, the issue taking equally if they are all of the same degree of
kinship to the decedent, but if of unequal degree those of more remote degree take by
representation; and the other half passes to the maternal relatives in the same manner; but if there
be no surviving grandparent or issue of grandparent on either the paternal or the maternal side,
the entire estate passes to the relatives on the other side in the same manner as the half;
(5) if there is no surviving issue, parent, issue of a parent, grandparent or issue of a grandparent,
the entire estate passes to the next of kin in equal degree, excepting that when there are two or
more collateral kindred in equal degree, but claiming through different ancestors, those who claim
through the nearest ancestor shall be preferred to those claiming through a more remote ancestor.
All parties agree that § 30-2303(3) applies and that the entire estate passes to the issue of the parents
by representation. Further, the parties agree that the trial court incorrectly applied § 30-2303(5) after
finding that there was no issue of the parents. The trial court failed to identify Susan, Mary, and Ted
as the issue of Donald’s parents. Susan, Mary, and Ted, as the three surviving grandchildren of
Donald’s parents, are the “issue of the parents” of Donald. “Issue of a person means all his or her
lineal descendants of all generations, with the relationship of parent and child at each generation
being determined by the definitions of child and parent contained in the Nebraska Probate Code.”
Neb. Rev. Stat. § 30-2209(23) (Cum.Supp.2012). Thus, it is clear from the record that § 30-2303(3)
controls and that Donald’s entire estate should be distributed to the issue of his parents, by
representation.
Ted claims that Susan, Mary, and he should take proportionate shares of the estate by
representation, with Susan and Mary each inheriting one-quarter of the estate through their deceased
father and Ted inheriting one-half of the estate through his deceased father. Ted reaches this result
because § 30-2303(3) states that the issue of the parents take “by representation,” rather than
providing that issue take when they are “next of kin in equal degree,” as provided in § 30-2303(5).
Mary counters that the estate is to be divided equally among the surviving heirs in the nearest degree
of kinship, with Susan, Mary, and Ted each receiving an equal one-third share because they all have
the same degree of kinship to Donald.
Neb. Rev. Stat. § 30-2306 (Reissue 2008) provides the operative definition of the phrase “by
representation,” as used in § 30-2303(3), as follows:
If representation is called for by this code, the estate is divided into as many
shares as there are surviving heirs in the nearest degree of kinship and deceased
persons in the same degree who left issue who survive the decedent, each
surviving heir in the nearest degree receiving one share and the share of each
deceased person in the same degree being divided among his issue in the same
manner.
35

Ted argues § 30-2306 means that the surviving issue of Stewart, namely Susan and Mary, would
receive one share and that he, as the sole surviving issue of Frederick, would receive one share.
Ted’s end result would have Susan and Mary splitting Stewart’s one-half share and Ted receiving
Frederick’s one-half share.
Ted misapplies § 30-2306. The portion applicable to our facts here provides: “If representation is
called for by this code, the estate is divided into as many shares as there are surviving heirs in the nearest
degree of kinship ....” § 30-2306 (emphasis supplied). Because none of Donald’s brothers survived him,
there are no surviving heirs in the nearest degree of kinship, namely Donald’s siblings. Thus, the
probate court must look to the next degree of kinship, or the next generation, which contains at
least one surviving heir. The first generation which has living issue is composed of Donald’s parents’
grandchildren, who also are Donald’s two nieces and his nephew. There must be at least one
survivor in a degree of kinship. Here, because none of Donald’s siblings survived him, the nearest
degree of kinship to him containing a survivor was the generation containing two nieces and a
nephew. And we note that Donald had no deceased nieces or nephews who have surviving issue.
Susan, Mary, and Ted, who are all in an equal degree of kinship to one another, should, therefore,
each receive a one-third share.
Ted relies on In re Estate of Tjaden, 225 Neb. 19, 402 N.W. 2d 288 (1987), for the proposition that the
term “right of representation”” under Nebraska law means distribution on a per stirpes basis,
resulting in a 50–percent share. However, In re Estate of Tjaden involved the construction of a
testator’s intent where there was a will and, thus, is distinguishable:
“This Court is of the opinion that the clear intent of the testator was to provide
for a division by a ‘per stirpes’ division among identified beneficiaries, their issue
or descendents. Clearly, the decedent intended to divide her estate, after specific
requests [sic], equally among her brothers and sisters and the issue of deceased
brothers and sisters or the issue of deceased issue of deceased brothers and
sisters....”
225 Neb. at 22, 402 N.W.2d. at 291. The In re Estate of Tjaden court quotes Gaughen v. Gaughen, 172
Neb. 740, 112 N.W.2d 285 (1961), for the description of distribution per stirpes:
“Distribution per stirpes is a division with reference to the intermediate course of
descent from the ancestor. It gives the beneficiaries each a share in the property
to be distributed, not necessarily equal, but [, rather,] the proper fraction of the
fraction to which the person through whom he claims from the ancestor would
have been entitled.”
225 Neb. at 27, 402 N.W.2d at 293. The court concludes, “in a per stirpes distribution, ordinarily
applicable in an intestate’s estate, there is a division of property among a class or group of
distributees who take the share which a decedent would have taken if such decedent were alive,
taking such share by the right of representing the decedent.” Id. at 28, 402 N.W.2d at 294.
The parties are all applying a form of distribution traditionally referred to as “per stirpes
distribution” in interpreting the words “by representation” found in § 30-2303(3) and defined in §
30-2306, but Ted is applying the older version of per stirpes distribution, referred to as “strict per
36

stirpes,” “classic per stirpes,” or “English per stirpes.” Mary and Vinton are applying the modern
version of per stirpes distribution, referred to as “modern per stirpes,” “modified per stirpes,” or
“American per stirpes.” These terms are well explained in Samuel B. Shumway, Note, Intestacy Law—
The Dual Generation Dilemma—Wyoming’s Interpretation of Its 130–Year–Old Intestacy Statute. Matter of
Fosler, 13 P.3d 686 (Wyo. 2000), 2 Wyo. L. Rev. 641 (2002). We borrow liberally from that article and
summarize as follows: The difference between strict per stirpes and modern per stirpes is the
generation at which shares of the estate are divided. Strict per stirpes begins at the generation closest
to the decedent, regardless of whether there are any surviving individuals in that generation, whereas
modern per stirpes begins at the first generation where there is living issue. Thus, the distinction
between strict per stirpes and modern per stirpes will be most evident in instances where all of the
heirs in the closest degree of kinship are deceased. In the present case, as earlier detailed, all of
Donald’s closest heirs, his parents and siblings, were deceased at the time of his death, and thus, the
next generation with living members is Donald’s parents’ grandchildren: Susan, Mary, and Ted.
Shumway concludes that although the strict per stirpes system was the early standard for America,
the majority of states now follow a different system of distribution.
According to Shumway’s article, 23 states have adopted some variation of modern per stirpes
distribution, including Nebraska. Shumway explains that the distinction between modern per stirpes
and strict per stirpes is that, in the latter system, the estate is divided into shares at the generation
nearest the decedent regardless of whether there are living members, whereas in modern per stirpes,
the estate is divided into equal shares at the nearest generation with surviving heirs. Nebraska is one
of the 23 states that has adopted some variation of modern per stirpes distribution, because it has
adopted the original 1969 Uniform Probate Code, a form of modern per stirpes. See Shumway, supra.
See, also, 1974 Neb. Laws, L.B. 354. Section 30-2306 is modeled after the original Uniform Probate
Code. See Unif. Probate Code, rev. art. II, § 2–106, 8 (part I) U.L.A. (1998). In comparing the
language of the two provisions, they are the same. See, Restatement (Third) of Property: Wills and
Other Donative Transfers § 2.3 (1999); Edward C. Halbach, Jr., Uniform Acts, Restatements, and Trends
in American Trust Law at Century’s End, 88 Cal. L. Rev. 1877, 1904-05 (2000) (“a modernized per stirpes
(or taking ‘by right of representation’ with the representation beginning with equal division in the
nearest descendant generation in which there are living members (the ‘stock’ generation) with
representation thereafter for deceased members’ issue) has come to be the prevalent current view,
with reinforcement from the original (1969) Uniform Probate Code”).
Therefore, in the end, it is clear that the county court applied the incorrect statutory provision, but
achieved the correct result. The probate court applied § 30-2303(5)) when it should have applied §
30-2303 (3), because the parents of Donald did have surviving issue as defined in § 30-2209 (23).
Susan, Mary, and Ted each take a one-third share of the estate, as they take by representation as
defined in § 30-2306. Therefore, we affirm the county court’s division of Donald’s estate.
CONCLUSION
Although the trial court incorrectly applied § 30-2303(5), the correct end result was reached with
regard to the distribution of Donald’s estate. Susan, Mary, and Ted are each entitled to a one-third
share of the estate. We remand the cause to the county court for further proceedings consistent with
this opinion.

37

Notes, Problems, and Questions
1. What would be the distribution of Donald’s estate under the English per stirpes system? Under
the Modern per stripes system? Which outcome do you think Donald would have preferred?
2. Let’s change the facts so that Donald was survived by his brothers, Stewart and Frederick. What
would be the distribution of Donald’s estate under the English per stirpes system? Under the
Modern per stirpes system?
3. Let’s change the facts so that Donald was survived by only his brother, Stewart. What would be
the distribution of Donald’s estate under the English per stirpes system? Under the Modern per
stirpes system?
4. Let’s change the facts so that all three of Donald’s brothers predeceased him, but Ted died leaving
a 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’s estate under the English per stirpes
system? Under the Modern per stirpes system?
5. These are the facts of the case: Donald had three brothers, Stewart, Frederick and Robert. Robert
did not have any children. Stewart had three children, Susan, Anna and Mary. Frederick had two
children, Ted and John. Susan, Anna, Mary, Ted and John did not have any children. Stewart,
Frederick and Robert predeceased Donald. Anna and John also died prior to Donald. Let’s change
the facts to include the following. Susan had a son, Glover. Mary had two children, Bonita and
Henry. John has four children, Gail, Samuel, Pauline and Jason. Ted had one child, Kevin. Donald is
only survived by John and Mary. What would be the distribution of Donald’s estate under the
English per stirpes system? Under the Modern per stirpes system?
6. In the Evans case, the court relied on the 1969 version of the Uniform Probate Code. According
to the court, the 1969 version of the UPC was a form of the Modern per stirpes system. For reasons
that will be discussed in the next section, the UPC changed its approached with the 1990
amendments from per capita by representation to per capita at each generation. After you review the
UPC section, come back to the Evans case and determine how Donald’s estate would have been
distributed had the court applied the 1990 version of the UPC?
2.4.4

Per capita at each generation (1990 Uniform Probate Code)

The majority of jurisdictions have adopted some form of the Uniform Probate Code (UPC).
Thus, key provisions of that Code will be discussed throughout this text. If you are studying in a
jurisdiction that has not adopted the UPC, it may still be helpful to use parts of the Code for
comparative purposes.
A shortcoming of the English and the Modern per stirpes approaches is that descendants
who are equally related to the decedent may take unequal shares of the estates. For instance, some of
the decedent’s grandchildren may receive a greater share of the estate than others. Consider a brief
example. A has three daughters, B, C and D. B has one child, E. C has two children F and G. D has
three children H, I and J. A dies survived by D. The following distribution would occur under either
per stirpes system: A’s estate will be divided into 3 shares. D will receive 1/3 of the estate. B’s child,
38

E, will receive her 1/3 share of the estate. C’s two children, F and G, will split her 1/3, so they will
each receive 1/6 of the estate.
Although E, F, G, H, I, and J are all A’s grandchildren, they are treated differently. It is
reasonable that H, I and J not receive anything from the estate because they are yielding to their
mother, D. It is presumed that D will provide for her children, so they are not overly disadvantaged.
Nonetheless, there appears to be no strong justification for permitting E to take a bigger share of
A’s estate than her cousins F and G. Should F and G be penalized because their mother had more
children than B? Do you think this is what A would have wanted? Relying on a survey conducted by
Fellows of the American College of Trust and Estate Counsel, the drafters of the UPC concluded
that A would probably answer the question in the negative.3 Consequently, the UPC was revised to
adopt the system of representation referred to as per capita at each generation. The revised
provision is set forth below.

UPC § 2-106(b)
(b) [Decedent’s Descendants.] If, under Section 2-103(1), a decedent’s intestate estate or a part
thereof passes “by representation” to the decedent’s descendants, the estate or part thereof is
divided into as many equal shares as there are (i) surviving descendants in the generation nearest to
the decedent which contains one or more surviving descendants and (ii) deceased descendants in the
same generation who left surviving descendants, if any. Each surviving descendant in the nearest
generation is allocated one share. The remaining shares, if any, are combined and then divided in the
same manner among the surviving descendants of the deceased descendants as if the surviving
descendants who were allocated a share and their surviving descendants had predeceased the
decedent.
Under the UPC system, the division of the decedent’s estate first transpires at the level
closest to the decedent where there is at least one living descendant. This step results in the same
distribution that would occur under the Modern per stirpes system. The difference in the two
approaches is the manner in which the decedent’s surviving grandchildren are treated. When the
Modern per stirpes system is applied, those descendants are treated equally. The UPC system
mandates that the shares of deceased persons on the level closest to the decedent be treated as one
pot. The shares in that pot are divided equally among the representatives on the next generational
level.
Example:
Hillary, a widow, had three children, Yvette, Raymond, and Margaret. Yvette had one child, Carmen.
Raymond had two children, Kathleen and Russell. Margaret had one child, Luke. Hillary was
survived by Carmen, Kathleen, Russell, Margaret and Luke.

The results indicated that majority of persons surveyed preferred that persons equally related receive equal shares of
their estates. Young, “Meaning of ‘Issue’ and ‘Descendants,’” 13 ACTEC Probate Notes 225 (1988).
3

39

Explanation:
Hillary’s estate is divided into three parts because there is one survivor, Margaret at the generation of
Hillary’s children. This is exactly what would have happened under the English and Modern per
stirpes systems.
Under the English and Modern per stirpes systems, Margaret would have gotten one-third of the
estate; Carmen would have gotten Yvette’s one-third; and Kathleen and Russell would have split
Raymond’s one-third. Luke would not have gotten a share because Margaret survived Hillary.
Under the UPC’s approach, Margaret would have gotten one-third of the estate; the two-thirds that
Yvette and Raymond would have gotten had they survived Hillary would be divided equally among
Carmen, Kathleen and Russell. They each would have gotten two-ninths of the estate.
The UPC approach may be confusing and has only been adopted by a few states. The thing
to remember is that it is similar to the Modern per stirpes approach with regards to the first
generation of descendants. Another example may be helpful.
Example:
Dennis, a widower, had four children, Thelma, Louis, Molly and Curt. Thelma had one child,
Bradford. Louis had two children, Regina and Alberta. Molly had one child, Melody. Curt had three
children, Curtis, Carla and Candice. Alberta had one child, Melissa. Dennis was survived by
Bradford, Regina, Melody, Curtis, Carla, Candice and Melissa.
Explanation:
Under the UPC system, Dennis’s estate is divided into seven parts because that is the number of
descendants in the generation where there is at least one survivor. The estate would be divided as
follows: Bradford (1/7), Regina (1/7), Melody (1/7), Curtis (1/7), Carla (1/7) and Candice (1/7).
The 1/7 share Alberta would have received is treated as one pot and dropped down to the next
generation. Since she is the only survivor at that generation, Melissa takes a 1/7 share, the entire pot.
If other great grandchildren had existed, Melissa would have to had split the 1/7 share with them.
2.4.5

Comparison
Let’s illustrate the different between the three systems.

To illustrate the variances between the three systems of representation, let’s consider the Anderson
family. Stephen Anderson had three children, Leonard, Brittany and Katherine. Leonard had three
children, Patrick, Brenda and Deborah. Brittany had one child, Huey. Katherine had two children,
Walter and Clifford. Let’s consider four different scenarios.
Scenario One: Stephen dies intestate survived by Leonard, Brittany and Katherine.
Result: Under all three systems, Leonard, Brittany and Katherine receive one-third of Stephen’s
estate.
40

Scenario Two: Stephen dies intestate survived by Brittany and Katherine.
Result: Under all three systems, the following distribution occurs: Brittany (1/3), Katherine (1/3),
Patrick (1/9), Brenda (1/9), and Deborah (1/9). Patrick, Brenda and Deborah split Leonard’s 1/3.
Scenario Three: Stephen dies intestate. All three of Stephen’s children predeceased him.
Result: Under the English and Modern per stirpes systems, the following distribution occurs:
Patrick (1/9), Brenda (1/9), Deborah (1/9), Huey (1/3), Walter (1/6) and Clifford (1/6).
Application of the UPC system results in each of the grandchildren receiving one-sixth share of the
estate.
Scenario Four: Stephen dies intestate. Leonard and Brittany predecease Stephen. Stephen is
survived by Katherine and his grandchildren.
Result: Under the English and Modern per stirpes systems, the following distribution occurs:
Katherine (1/3), Huey (1/3), Patrick (1/9), Brenda (1/9) and Deborah (1/9). Huey, a grandchild,
receives the same portion of the estate as Katherine, a child. He receives a larger portion than the
other grandchildren. Under the UPC, the following distribution occurs: Kathrine takes 1/3 and the
other two 1/3 shares are combined into a single 2/3 share and distributed as if Katherine, Walter
and Clifford had predeceased Stephen. As a result, Patrick, Brenda, Deborah and Huey each receive
1/6 of the estate.
Problems
Please divide the property using the English per stirpes, Modern per stirpes and UPC approaches.
1. Hank, a widower, had three children, Keith, Patti, and Rosa. Keith had one child, Edward. Patti
had two children, Rochelle and Pamela. Rosa had three children, David, Carlton and Vince. Hank
died intestate. Hank was survived by Keith, Patti, Rosa, Edward, Rochelle, Pamela, David, Carlton
and Vince.
2. Theresa, a widow, had five children, Donald, Sharon, Cara, Anthony, and Pearl. Donald had one
child, Aaron. Sharon had three children, Rene, Tina and Victor. Anthony and Cara did not have any
children. Pearl had two children, Francine and Howie. All of Theresa’s children predeceased her.
She died intestate survived by her six grandchildren.
3. Raven, a widow, had three children, Darrell, Andrew, and Madison. Darrell had four children,
Gino, Edwardo, Lucy, and Tonya. Andrew did not have any children. Madison had two children,
Nancy and Ruth. Madison also had two grandchildren, Barry and Martin by her daughter Nancy and
her husband Bryan. Raven died intestate survived by Darrell, Gino, Edwardo, Lucy, Tonya, Ruth,
Barry and Martin. Andrew and Madison predeceased Raven. Nancy predeceased Raven, leaving a
will devising all of her property to Bryan.
4. Devon, a widower, had two children, Alice and Clint, both of whom predeceased him. Alice had
one child, Charles. Clint had three children, Edwin, Kenny, and Eric. Edwin had one child, Gus.
41

Eric had three children, Harriet, Ivan, and Justin. Devon died intestate. He was survived by Charles,
Gus, Harriet, Ivan and Justin.
5. Anna, a widow, had three children, Toni, Maddy, and Nelson. Toni had one child, Christina.
Christina had two children, Eugenia and Catherine. Nelson had two children Lawrence and Thomas.
Toni had three children, Darlene, Sarah, and Tiffany. Darlene had three children, Lisa, Minnie, and
Noah. Anna died intestate. Toni, Maddy, Nelson, Christian and Lawrence predeceased Anna. She
was survived by Eugenia, Catherine, Thomas, Darlene, Sarah, and Tiffany.
2.5

Ancestors, Collaterals and Others.

2.5.1

Parents

In some cases, the intestacy system places parents second in line to children. The law
assumes that a decedent only wants his or her parents to inherit if he or she is not survived by
children. Is it possible that a decedent would prefer that an elderly parent inherit instead of an adult
child?
In about half of the states, parents take if the decedent is not survived by children.
However, in the other states, the surviving spouse of a decedent with no surviving children takes the
intestate decedent’s entire estate. Even in jurisdictions that favor parents, parents may be prevented
from inheriting.

Uniform Probate Code § 2-114. Parent and Child Relationship.
(c)
Inheritance from or through a child by either natural parent or his [or her] kindred is
precluded unless that natural parent has openly treated the child as his [or hers], and has not refused
to support the child.
Section 2-114 was originally designed to punish “dead beat dads”. When the Code was
revised in 1990, the section was amended to apply to mothers. As the next two cases illustrate,
mothers can be just as neglectful as fathers.

In re Estate of Fleming, 991 P.2d 128 (Wash. Ct. App. 2000) (Voluntary Termination of
Parental Rights)
BAKER, J.
Margaret Fleming voluntarily surrendered her infant son Thomas Fleming to a charitable
organization for adoption. At that time, she agreed to a court order that permanently relinquished all
maternal rights to him. However, Thomas was never adopted. He died intestate fifty years later with
no spouse or issue. Margaret Fleming and her later-born son Antonio Marzan now assert that they
are intestate heirs of Thomas. Because we hold that the termination order permanently divested
Fleming and her kin of intestate inheritance rights, Thomas’s estate escheats to the State of
Washington.
42

Thomas A. Fleming was born out of wedlock to Margaret Fleming in 1946. Paternity was never
established. Ms. Fleming decided to give up her son for adoption. The King County Juvenile Court
entered a parental termination order in 1947 stating that Margaret Mary Fleming was “hereby
permanently deprived of any and all maternal rights and interests in and to the said Baby Boy
Fleming,” committing him into the permanent custody of Catholic Charity of the Diocese of Seattle,
and authorizing that organization to consent to his adoption. Thomas was never adopted. He lived
in foster care until the age of majority.
Thomas died intestate in 1996. He was not married and he had no children or stepchildren. Thomas
was survived by two biological relatives: his mother Margaret Fleming and his half-brother Antonio
Marzan, who was born to Ms. Fleming after she terminated her parental rights to Thomas.
In 1998, Judith Kovacs, the personal administrator of Thomas’s estate, filed a petition for
determination of heirship. She asked the court to find that Margaret Fleming and her kin were not
entitled to inherit in intestacy from Thomas because Ms. Fleming had terminated all maternal rights
to Thomas at his birth. She argued that Thomas’s estate should therefore escheat to the State of
Washington because he died intestate without any legal heirs. In the alternative, she asked the court
to instruct what action she should take if it determined that there are potential heirs to the estate.
Ms. Fleming and Mr. Marzan then filed a response and objections to the petition.
The commissioner agreed with Kovacs and ruled that the estate escheated because Thomas died
without legal heirs. He found that the 1947 order terminating Margaret Fleming’s maternal rights to
Thomas also extinguished her right to intestate inheritance, and that Marzan could not inherit from
Thomas because his right to intestate inheritance derived from Margaret Fleming’s extinguished
maternal rights. Margaret Fleming died soon after, and her son Marzan was appointed personal
representative of her estate. Marzan then filed a motion to revise the ruling of the commissioner.
The superior court upheld the commissioner’s order. Marzan now appeals that ruling.
II
As a preliminary matter, Marzan contends that Kovacs, as the personal representative of the estate,
lacked standing to argue in favor of escheat because the State waived its right to serve as personal
administrator under RCW 11.08.160 and because there were potential intestate heirs. We disagree.
There is nothing in the probate statutes or case law that constrains the personal representative’s
authority to present evidence of escheat to the court when the State declines the right to serve as
personal administrator. A personal representative has a duty to exercise the utmost good faith and to
utilize the skill, judgment and diligence which would be employed by an ordinarily cautious and
prudent person in the management of her own business affairs. While we need not hold that Kovacs
had a duty to argue in favor of escheat, it is clear that she had standing to do so when a good faith
argument under the facts and law appeared to merit such a conclusion.
The primary issue in this case is whether the 1947 termination order permanently deprived Margaret
Fleming of the right to inherit in intestacy from Thomas. This is an issue of first impression in
Washington. There are numerous cases addressing the intestate inheritance rights of adopted
children and their kin. Thomas was never adopted, however, so those cases are not dispositive.
Therefore, we must rely on statutory interpretation to determine the legal effect of the parental
termination order on Fleming’s intestate inheritance rights. Issues of statutory construction are
43

questions of law, reviewed de novo on appeal.
We first determine which statutes govern the legal effect of the termination proceeding. Kovacs and
the State urge us to apply current dependency and adoption statutes because the probate statutes
that apply are those in effect at the time of the decedent’s death, and the intestacy statutes vest heirs
with legal interests only upon the death of their intestate ancestor. Marzan agrees that modern
probate statutes apply, but argues that the termination proceeding is a separate matter that must be
considered under the 1947 statutes. We hold that the legal effect of the 1947 termination order must
be analyzed under the statutes in force at the time of the termination proceeding, not under those in
effect at the time of Thomas’s death in 1996. The 1947 parental termination order was issued under
Rem.Rev.Stat. § 1700, which governed surrender of a child to a charitable society for the purposes
of receiving, caring for, or placing the child out for adoption. Therefore, we consider the
termination order in light of that statute, and we need not address the arguments advanced by
Kovacs and the State regarding the application of modern adoption and termination statutes to this
case.
We next determine whether the 1947 statute and termination order operated to permanently divest
Margaret Fleming of her right to intestate inheritance from her biological son Thomas.
Under Rem. Rev. Stat. § 1700, when a child is surrendered to the care and custody of a benevolent
or charitable incorporated society for the purpose of receiving, caring for, or placing the child out
for adoption, then, (but not otherwise), the rights of its natural parents or of the guardian of its
person (if any) shall cease and such corporation shall become entitled to the custody of such child,
and shall have authority to care for and educate such child or place it either temporarily or
permanently in a suitable private home in such manner as shall best secure its welfare.
The 1947 order approved Margaret Fleming’s voluntary relinquishment “of all of her maternal rights
and interests in and to the said child,” ordered that Margaret Fleming “is hereby permanently
deprived of any and all maternal rights and interests in and to the said Baby Boy Fleming,” and
committed Thomas to the permanent custody of the Catholic Charities of the Diocese of Seattle.
Margaret Fleming chose to surrender Thomas to a charitable society under Rem. Rev. Stat. § 1700.
By the express language of that statute and the termination order, Margaret Fleming was
permanently deprived of all maternal rights and interests in Thomas. The statute and order need not
expressly provide that termination of parental rights terminates intestate succession, because “all
maternal rights and interests” clearly includes intestate inheritance rights.
According to Marzan, Fleming’s intestate inheritance rights were not extinguished because a series
of early Washington Supreme Court cases hold that the rights of any kin to inherit in intestacy from
each other cannot be extinguished absent express legislative declaration. Because the Legislature has
never expressly stated that termination of parental rights simultaneously cuts off intestate inheritance
rights, Marzan argues that only a decree of adoption can have this effect. Marzan’s overly broad
reading of these cases is incorrect. The statutes addressed in those cases were silent as to the right of
adopted children to inherit in intestacy from their biological parents. However, as noted, the statute
and the order issued pursuant to it in this case deprived the natural parent of all rights regarding the
child. The cases relied on by Marzan tracked the statutes then in effect when they held that the
Legislature had not expressly terminated the intestate inheritance rights of a child from its biological
parents. But the cases did not address the reverse issue presented here.
44

In our view, the 1947 statutes could and did give effect to the differing circumstances of a natural
parent and a child in termination and adoption proceedings. Children who were permanently
surrendered to foster care but never adopted had no opportunity for intestate inheritance other than
from their biological parents. On the other hand, parents who chose to relieve themselves of the
obligations of child rearing by relinquishing their children to an adoption agency nevertheless
retained their legal relationship with other blood kin. There is little reason for them to reap the
benefits of intestate inheritance if a child should happen to die intestate without having been
adopted.
Finally, because we hold that the 1947 order terminated Margaret Fleming’s intestate inheritance
rights, we must decide whether it also permanently severed the right of any later born siblings to
inherit in intestacy from Thomas. Marzan contends that even if the termination of parental rights
effectively removed Margaret Fleming from Thomas’s family, he is a direct collateral heir of Thomas
and can inherit in his own right. Kovacs contends that Marzan’s right to inherit in intestacy must
descend through his mother, and if her right to inherit was terminated then the line has been severed
and Marzan’s right terminates as well.
To determine intestate succession, we apply the probate statutes in effect at the time of the
decedent’s death, in this case 1996. Intestacy statutes establish a system of intestate succession
whereby the line of descent and distribution flows through a decedent’s parents to reach the issue of
parents. The line must flow through a common ancestor. Margaret Fleming, as the parent of Marzan
and Thomas, was the only direct connection between them. When Margaret Fleming’s parental
rights were terminated, the effect was to permanently sever Thomas from her family line, leaving
him without a legal parent. Therefore, the line of intestate succession between Marzan and Thomas
was severed as well.
Our result is in accord with In re Estates of Donnelly, in which the Washington Supreme Court held
that an adopted child could not inherit in intestacy from her biological paternal grandfather because
she had been legally removed from her natural bloodline for inheritance purposes. The Court stated
that because “the adopted child cannot take from her natural father, she should not represent him
and take from his father.” Similarly, because Margaret Fleming cannot take from Thomas, Marzan
should not be able to step in and represent her.
We hold that Margaret Fleming and her son Antonio Marzan are not intestate heirs of Thomas
Fleming’s estate. Therefore, there are no legal heirs, and the estate must escheat to the State of
Washington.
AFFIRMED.

New Jersey Div. of Youth and Family Services v. M.W., 942 A.2d 1 (N.J. App. Div. 2007)
(Involuntary Termination of Parental Rights)
COLLESTER, J.A.D.
This is an appeal from a judgment retroactively terminating the parental rights of the natural mother
45

to her deceased child, and alternatively, holding that the mother’s right of inheritance by intestacy is
extinguished on equitable grounds. This novel issue was precipitated by a complaint for
guardianship brought by the Division of Youth and Family Services (the Division) to terminate
M.W.’s parental rights to three of her sons: T.H., Jr., born August 28, 1998; R.W. born on June 13,
1995; and his identical twin, F.W., who died on January 5, 2003. In an earlier opinion we affirmed
that portion of the judgment terminating M.W.’s parental rights to R.W. and T.H., Jr. We now
review the determination of the trial judge as to the deceased F.W. In doing so it is necessary to
repeat some of the facts set forth in our prior opinion.
The facts of this case would shock the cynical and wound the most hardened of heart. When the
circumstances were reported by the media, the case outraged the citizenry and shook the
foundations of the State’s child support system. It began on the morning of January 4, 2003, when
the Newark Police Department received an anonymous 9–1–1 call reporting that two beaten and
starving children were found locked in the basement of an apartment building at 188 Parker Street.
When police arrived, they were met by Shawn Slappy who said he made the 9–1–1 call. Slappy told
them he was the boyfriend of Sherry Murphy, who was a tenant in the building, and that he moved
in with her about two weeks earlier. He said he was unaware of the existence of these children until
that morning when he used a screwdriver to pry open the locked basement door to search for a pair
of his boots he believed Murphy put in the basement. When he saw “something moving,” he
investigated and was shocked to find two young boys locked in a dark and fetid room with only a
bed, no sink, no toilet, and no food. Slappy brought the frightened children upstairs to Sherry
Murphy’s apartment and made the 9–1–1 call.
The condition of the two boys was deplorable. They were emaciated with burn marks and new and
old bruises all over their bodies, evidencing severe physical abuse. Their hair was matted. They
smelled rank because their clothing was filthy with urine and feces. Seven-year-old R.W. told police
“Sherry” put them in the basement. The police asked Slappy where Sherry Murphy was, and he said
she left early that morning. He had no idea where she was or when she would return.
The boys were taken by EMT to University Hospital in Newark for examination and treatment, and
the Division of Youth and Family Services (“the Division”) was notified. Division worker Sandra
Osborne responded to the hospital at about 11:30 a.m. She reported as follows:
[T.H., Jr.], age 4, appeared to be extremely weak and needed assistance standing. He was not able
to verbalize at all. However he understands what is being said to him. [He] has multiple bruises
over his entire body and appears to have been burned over the buttocks, arms, legs, face and
stomach. He is very thin and frail for his age. [R.W.], age 7, was able to provide his name and also
his brother’s name. [R.W.] was also filthy with old burns and marks on back and neck. His skin is
dry and scaly, clothes were wet with the smell of urine. He was very weak and hungry. [R.W.] gave
his age as 6 years old, but did not know his brother[’]s age. Both boys appear to be
underdeveloped for [their] ages. It is not known how long the children were in the basement,
however, it appears that they have been locked up for 3 to 4 weeks.
[R.W.] was able to tell me that Sherry put him and his brother in the basement. He stated that she
only fed them sometime[s] not all the time. I asked [R.W.] how did he get the bump on his eye. He
stated “Sherry punched me in my face for peeing on the floor.” He also said that she put [T.H.,
Jr.] in hot water because he did “do” on the floor. I then asked [R.W.] did he know where his
mother was and he responded, “Yes.” I said where is she? He responded, “She’s locked up.” I
46

asked [R.W.] how long has he and his brother been in the basement? He responded, “A long
time.” ... [R.W.] did not want to answer any more questions at that time because he wanted to eat.
Hospital records and medical reports confirm the pitiful condition of the two boys. Four-year-old
T.H., Jr. had hypopigmented patches on his skin resembling burns, scaling skin, osteopenia
(generalized reduction of bone mass), significant dental decay, and a distended abdomen.
Circumferential scarring around the ankles, wrists, and neck indicated he was bound with some type
of restraints. He weighed only twenty-nine pounds and measured three feet tall, both under the third
percentile for a four-year-old. Burn scars on his chest, neck, feet and buttocks were consistent with
second degree burns. As a result of the burn scarring, T.H., Jr. had to wear a compression garment
suit 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
and one-half feet tall, a height and weight below the third percentile for a child of his age. Physical
examination disclosed multiple scars, old burns, lesions, scabbing, dried skin, a distended stomach,
and severe dental decay. He suffered from chronic protein calorie malnutrition and micronutrient
deficiency.
A hospital registration clerk searched the computer for past admittances and discovered M.W. was
the mother of the two boys. A contact number was listed for her in New York City. When Osborne
called the number, R.G. answered the phone and said she was M.W.’s sister and the children’s aunt.
She related that every time she asked M.W. about the children, M.W. was “vague,” saying only that
they were temporarily staying with her cousin, Sherry Murphy, in Irvington until M.W. could find
her own apartment. R.G. told Osborne that the children had lived with Murphy from March 2001 to
July 2001 while M.W. served a jail sentence and that when she was released, M.W. moved into
Murphy’s apartment. R.G. said Murphy threw M.W. out after an argument a month later, and M.W.
left her children. M.W.’s oldest son, ten-year-old F.D.W., left Murphy’s home to live with R.G. and
her son in New York. The three younger boys remained with Murphy. When Osborne told her that
only R.W. and T.H., Jr. were found in the basement, R.G. became concerned because she knew
F.W. was also living with Murphy. R.G. told Osborne that she believed M.W. was living in Newark
with P.W., another sister, and she supplied the telephone number.
Osborne checked Division records and found that M.W. did have another son named F.W. who was
R.W.’s twin brother. She then spoke to P.W. who told her that M.W. had been living with her since
leaving Murphy’s apartment in August 2001. P.W. said that when she asked about the boys, M.W.
told her that F.D.W. was living in New York with R.G.’s son and the other three were living with
relatives in North Carolina. P.W. said that M.W. was not at her home and had left that morning to
go to New York. When Osborne told P.W. about the discovery that morning of the two boys in the
basement, P.W. became very disturbed and went to University Hospital to see them. At the hospital
P.W. told Osborne that she was very upset that F.W. was missing because she had no idea where the
child might be. When asked about Sherry Murphy, P.W. said she was M.W.’s cousin and worked
nights in various bars as a go-go dancer.
Caseworker Osborne then spoke to eight-year-old R.W. and asked him about his twin brother. R.W.
said that the last time he saw F.W. was “a long time ago” when “Joe” took him and “Sherry put
[him] in hot water and he was screaming.” “Joe” was later identified as Joseph Reese, Sherry
Murphy’s former boyfriend. R.W. later reported that he had been sexually abused by Reese.
That night the Newark Police Department issued a missing persons bulletin for F.W. and then
47

continued the search for M.W. and Sherry Murphy. Later the police received information that M.W.
was admitted to Lincoln Hospital in the Bronx after being struck by an automobile. The night ended
with no information on either Sherry Murphy or the missing F.W.
At about 3 p.m. the following afternoon, Newark police officers returned to the basement at 188
Parker Street with a trained cadaver-sniffing dog. They found what they feared most—the decaying
body of seven-year-old F.W. in a Rubbermaid storage bin located about fifteen feet from where his
brothers were found the day before. The desiccated corpse was so badly decomposed that only
DNA could verify identity. No remaining facial features remained—no eyes, no nose, and no lips.
F.W. was pronounced dead at 3:35 p.m. that day, January 5, 2003, but it was the opinion of the
medical examiner that the child had been dead for several weeks. The death certificate listed F.W.’s
death as a homicide and noted blunt trauma to the head and abdomen.
The gruesome discoveries in the Newark basement of two starving and abused young boys and the
mummified remains of a third spurred extensive media coverage throughout New Jersey and the
metropolitan area. At F.W.’s funeral the boy who had been abused, abandoned, and forgotten and
known to few, was mourned by over 400 people including the Governor of New Jersey, a United
States Senator and the Mayor of Newark. Richard Lezin Jones,
The police and FBI hunt for Sherry Murphy ended after four days. On January 9, 2003, she was
found hiding in the Newark apartment of a man she met on the street three days earlier. She was
arrested, remanded to jail on charges of child endangerment, and subsequently indicted on seven
counts of attempted murder, kidnapping, and child endangerment. Avoiding trial, she pleaded guilty
to two counts of aggravated assault, two counts of criminal restraint, and two counts of endangering
the welfare of a child. At her plea hearing Murphy said that F.W. died while she was living in
Irvington. She hid the body and took it with her when she moved to Newark in December 2002,
where she placed it in the basement. She further admitted to confining R.W. and T.H., Jr. in the unlit
basement without food, water or a toilet and causing their severe malnutrition. She also admitted to
burning the buttocks of four-year-old T.H., Jr. by placing him in scalding bath water and then failing
to obtain medical treatment for the injury.
Sherry Murphy was sentenced on November 2, 2005, to an aggregate term of twenty-five years with
sixteen years parole ineligibility under the No Early Release Act. Her sentence was affirmed on
appeal. Her projected parole eligibility date is August 13, 2016. Murphy’s seventeen-year-old son
Wesley entered a guilty plea to reckless manslaughter causing the death of F.W. He was paroled on
September 2, 2005. Murphy’s boyfriend, Joseph Reese, pleaded guilty to sexual assault on R.W. and
was sentenced to a five-year term in State prison. He was released on May 31, 2007.
After the discovery of R.W. and T.H., Jr. on January 4, 2003, the Division sought and received an
emergency order of temporary custody and supervision of the children pending a fact finding
hearing scheduled for February 24, 2003. M.W. was served with the order and a complaint and order
to show cause for continued care of R.W. and T.H., Jr. by a Division caseworker while M.W. was in
Lincoln Hospital in the Bronx recovering from her injuries in the January 4, 2003 accident. The
caseworker reported that M.W. was neither remorseful nor sad. She said that she had not seen her
children since August 2001 when she left Sherry Murphy’s apartment. She claimed that she made
several failed attempts to get R.W., F.W., and T.H., Jr. back, but she did not seek the aid of the
police or the Division. She blamed Sherry Murphy for any harm done to her children, but she did
not express any anger toward Murphy, referring to her as her favorite cousin.
48

Following the fact finding hearing on February 24, 2003, Judge Glenn A. Grant found the Division
had proven by clear and convincing evidence that M.W. had abused and neglected R.W. and T.H.,
Jr. by placing them in the care of Sherry Murphy. He directed that the two boys remain in foster care
and ordered legal custody was to remain with the Division while alternative placement was explored.
While the Division was pursuing placement, M.W. was discharged from the hospital. She was then
arrested in New Jersey on charges she violated the conditions of her probation imposed as a result
of a 1996 conviction of child endangerment of children left in her care by a friend serving a prison
sentence. M.W. was found guilty of violating probation, and she was sentenced to four years in
prison.
R.W. and T.H., Jr. were reluctant to talk to Division caseworkers and others about the abuse they
suffered at the hands of Sherry Murphy and their mother. In bits and pieces they disclosed the evil
they endured in the Newark basement. R.W. said they had no food and were forced to eat their
vomit and drink urine. He added they were tied or shackled by their ankles and wrists. They were
burned in hot water and as a consequence were frightened at the sight of a bathtub. R.W. said
Murphy burned them with lit cigarettes just like their mother and that Sherry Murphy learned from
their mother to burn them as punishment.
It soon came to light that the Division had a long history with M.W. and her family. In 1989 when
she was sixteen, M.W. gave birth to her first child, a daughter named K.W. M.W.’s parental rights to
K.W. were terminated six years later. In the interim, her first son, F.D.W., was born on May 6, 1991,
and the twin boys, R.W. and F.W., were born on June 13, 1995.
The Division’s involvement with M.W. and her sons began in 1992 when an anonymous caller
reported that the children had no food and that the house was filthy and roach infested. In July 1996
it was reported that five-year-old F.D.W. and the eleven-month-old twins, R.W. and F.W., were left
alone in their apartment without food for several hours and that the mother often left the children
alone. When confronted, M.W. admitted to leaving the children by themselves. She signed her first
of many case plans with the Division. She failed to complete or cooperate with the Division on any
of them.
The Division received another anonymous call on December 4, 1996, this one reporting that drug
trafficking was going on in M.W.’s apartment and that her children were left unattended and without
proper clothing. The allegations were deemed unsubstantiated. In February 1997, M.W. failed to
maintain contact with the Division as required by her case plan. After attempts to locate her were
unsuccessful, a request was made by the Division for a hold on her welfare benefits until she
contacted the Division. On March 4, 1997, the Division received another referral stating that M.W.’s
apartment was filthy with garbage all over the floor, that F.D.W. was begging for food, and all the
children were regularly left unattended. A field visit to the home convinced the caseworker that the
family was “stable,” although the apartment was crowded and unclean.
M.W. signed another case plan on April 2, 1997, agreeing to cooperate with the Division’s services.
However, five days later on April 7, 1997, the Division sent M.W. a letter stating that after review by
the caseworker and her supervisor, it was determined that M.W.’s family no longer required
supervision and the Division was closing its case. This decision was both puzzling and disturbing
since the Division was well aware that M.W. was indicted three months earlier for child
49

endangerment based on her physical abuse of a friend’s children who were left in her care while the
mother served a jail sentence. The report made to the Division and the prosecutor was that those
children, ages seven, five, and three and a half, were beaten with a belt, a belt buckle, and a coat
hanger and burned with lit cigarettes. For some unexplained reason the case was delayed almost five
years. On April 2, 2002, M.W. pleaded guilty to second-degree child endangerment, and pursuant to
a plea agreement, was sentenced to a five year term of probation.
After closing its case on M.W. and her children in April 1997, the Division was forced to re-open
the case on M.W. and her four sons in October 1997, amid further reports of neglect and abuse of
the children. M.W.’s resistance to Division supervision continued. She signed five more case plans to
cooperate with the Division and its services, but she did the opposite. From October 1997 to
December 2001 she moved ten times with her children without notifying the Division. Once again
“holds” were requested on her welfare benefits until she and the children were finally located.
Medical neglect was substantiated in 1990 when caseworkers saw that F.D.W. had an untreated
laceration on his palm. He was taken to the emergency room where the wound was cleaned and
treated, but it was too old to be sutured. Later that year M.W. was referred to the Ad House Newark
New Start Project for a psychological evaluation, a drug screening, and pre-natal care since she was
four months pregnant with T.H., Jr. But within a month, M.W. again moved without informing the
Division. During this time, she gave birth to T.H., Jr. on August 20, 1998.
After several more requests for holds on her welfare benefits, M.W. finally contacted the Division
on October 1, 1998 to advise that she was living in East Orange. M.W. was required to sign another
case plan on October 7, 1998. She agreed to enroll F.D.W. in school and agreed to attend the
Apostles’ House Family Preservation Program to learn housekeeping and hygiene skills. But within a
month, M.W. told her caseworker that she did not want parent aid services and would not attend.
She then disappeared until February 2, 1999, when a Division caseworker saw her on Broad Street in
Newark and spoke with her. M.W. said she had moved back to Newark and gave the Division
worker the address. But when the caseworker visited the address on February 22, 1999, she was told
that M.W. and her children had left and were living with relatives of T.H. On March 8, 1999, T.H.’s
relatives informed the Division that M.W. left their apartment on March 1, 1999, with her children
and they did not know their whereabouts.
M.W. and the children were located in East Orange on April 27, 1999, after a referral from F.D.W.’s
school reporting he had an inch long cut on his thumb and he told the nurse that his mother had cut
him with a knife while she was trying to attack her boyfriend and that there was a gun under his bed
at home. A worker visited the family that afternoon and decided that the allegations were
unsubstantiated. But M.W. was requested to sign another case plan because the school reported that
F.D.W. was classified as a non-reader.
On July 28, 1999, the Division was contacted by H.H., the paternal grandmother of T.H., Jr., who
said that three weeks earlier M.W. asked her to watch the child one afternoon. M.W. never came
back and left no food or clothing for the child. The following day, the Division placed F.D.W.,
R.W., and F.W. in the care of their maternal aunt, R.G., while T.H., Jr. remained with H.H. During a
visit by the caseworker to H.H.’s home on August 19, 1999, H.H. said she still had not seen or heard
from M.W. in two months.
Sometime between the end of November 1999 and June 2000, F.D.W., F.W., and R.W. were
50

returned to M.W. She agreed to a psychological evaluation on July 11, 2000. The examining
psychologist reported M.W. posed a risk to her children without Division services and parental
training. However, M.W. did not complete the recommended parenting skills courses or cooperate
with other Division services.
The Division was next notified in August 2000 by R.G., M.W.’s sister in New York, that F.D.W.,
R.W., and F.W. were living with her. But by late October they were again living with M.W. in New
Jersey. Then on January 17, 2001, the Division received an anonymous referral that M.W. and her
children were living in an apartment with broken windows and no heat. A caseworker visited the
apartment building that day, saw M.W. and the children, and reported the referral as
unsubstantiated. This was the last time that anyone from the Division saw any of M.W.’s sons until
January 4, 2003, at University Hospital.
After January 17, 2001, the Division again lost contact with M.W. On July 13, 2001, P.W. called the
Division to report that F.D.W. was with her in New York and that R.W., F.W. and T.H., Jr. were
living with Sherry Murphy while M.W. was serving a county jail sentence. On October 3, 2001, P.W.
advised the Division that F.D.W. was now living with her son in New York. She also said that M.W.
had been released from jail and was living with her other three sons with Sherry Murphy in
Irvington. P.W. informed the caseworker that F.D.W. told her M.W. physically abused her children
and burned them with lit cigarettes. On the same day, the caseworker went to Sherry Murphy’s
home but was told that M.W. and her children did not live there. Three weeks later the caseworker
returned to Murphy’s home and was told M.W. and the three children were out.
The caseworker then spoke to R.G. in New York who said that M.W. did not properly feed or
clothe the children and failed to enroll them in school. She added that M.W. and Sherry Murphy
were abusive individuals and that F.D.W. told her both women beat and burned all the children and
that Murphy’s son tried to sexually abuse him.
Finally, after ten months, the Division successfully made contact with M.W., and a field visit at the
Murphy home was scheduled for November 13, 2001. But M.W. called at the last minute to say that
she was too busy until after Thanksgiving. The caseworker made an unannounced field visit the
following day. Murphy answered the door and said that M.W. and the children were not home and
that all of them were doing well. During another unfruitful visit on November 26, 2001, the
caseworkers were told by Murphy’s brother that M.W. and her children were away for a week.
Division caseworkers tried once again on December 10, 2001. As they were walking up the steps,
they met a young man who told them that M.W. and her children were inside. But as they
approached the front door another man said the caseworkers had “just missed her.”
Incredibly, the Division gave up. The following day, December 11, 2001, the decision was made to
close the case even though there were reports emanating from F.D.W. that Sherry Murphy and
M.W. had physically abused all the boys and the children had not been seen by a caseworker in a
year. The final “In–Home Safety Assessment” prepared by the Division caseworker stated that
Sherry Murphy said M.W. and the children were living with her, that they were “fine,” and the
children were at “very low risk.” The assessment concluded that the children were unlikely to be in
danger of immediate or serious harm. The Division “Case Summary for Closing” submitted by the
case manager and supervisor based the decision on the non-compliance of M.W. with Division
supervision, noting “many attempts to make contact with the children but to no avail.” The case was
closed.
51

So the three young boys who were abused by their mother and abandoned by her in the summer of
2001 were again abandoned six months later, this time by the State agency that was supposed to
protect them. The Division’s next contact was January 4, 2003, following the 9–1–1 call reporting
two starving and abused boys of three and seven in a cold, dark basement near the yet to be
discovered body of their seven-year-old brother rotting in a plastic bin.
Following the fact finding determination on February 24, 2003, the Division explored relatives of
the children for possible placement. When it was reported that no such placement was in the
children’s best interests, Judge Grant directed the Division to pursue formal guardianship of the
children and termination of M.W.’s parental rights. The Division filed its complaint on August 12,
2005.
Meanwhile, while still serving her jail sentence on the probation violation, M.W. filed a civil
complaint as guardian ad litem for R.W. and T.H., Jr. against the Division, alleging that the Division
had negligently failed to protect her children from abuse while they were in the care of Sherry
Murphy. As administrix ad prosequendum she asserted claims for F.W.’s estate under the Wrongful
Death Act, N.J.S.A. 2A:31-1, the Survivor’s Act, N.J.S.A. 2A:15-3, and for loss of consortium. The
State answered denying liability and filed a counterclaim against M.W. seeking expenses incurred in
the guardianship action commenced by the Division.
The civil supervising judge recognized a conflict of interest between M.W. and her sons, and
appointed a substitute administrix ad prosequendum for the estate of F.W. and separate guardians
ad litem for R.W. and T.H., Jr. They participated in mediation with a retired Superior Court judge,
and a settlement was reached between the State and on behalf of the children for payment of $3.75
million on behalf of T.H., Jr., $2.75 million on behalf of R.W. and $1 million to the estate of F.W.
The settlement contained no condition or provision that would exclude M.W. from inheriting under
the intestacy statute. M.W. did not participate in the negotiations, and her claim of loss of
consortium was not included in the settlement. The judge dismissed the count of M.W.’s complaint
seeking relief on her own behalf without prejudice, and he specifically stated that M.W. could re-file
her claim or claims against the Division in a subsequent action.
A month after the civil settlement was filed, the Division moved in the guardianship action to
amend its complaint to include a demand for retroactive termination of M.W.’s parental rights to
F.W. including any right of inheritance. The avowed purpose was to prevent M.W. from receiving
any portion of the $1 million settlement payable to F.W.’s estate. M.W. opposed the amendment,
arguing: (1) the claim asserted in the proposed amendment lacked merit because there is no
authority permitting termination of parental rights for a deceased child; (2) any application with
respect to M.W.’s interest in F.W.’s estate was a matter for the Probate Division rather than the
Family Division; and (3) the Division was vindictively attempting to shift the blame for the death of
F.W. to M.W. rather than acknowledging its failures in this case. Following oral argument on April
17, 2006, Judge Grant ruled in favor of the Division, and the amended complaint seeking
termination of M.W.’s rights to F.W. was filed the same day.
The guardianship trial began on May 22, 2006, and lasted three days. Psychologist Frank J. Dyer,
Division caseworker, Sabrina McNeil, and behavioral therapist, Charles C. Cooper testified for the
Division. M.W. did not testify and called no witnesses.
52

Dr. Dyer testified that in his opinion M.W.’s “contact with reality is rather tenuous [she] has a rather
plastic concept of reality.” M.W. categorically denied to Dr. Dyer any abusive behavior by her
toward any child at any time, even though she pleaded guilty and was sentenced for child
endangerment relating to her physical abuse of children placed in her care. She also took no
responsibility for the Division’s involvement in her life and the life of her children. Dr. Dyer
concluded that M.W. suffers from schizophrenia, dysthymic disorder and personality disorders with
prominent antisocial features. He said that “[M.W.] is far too unstable emotionally and behaviorally
to be even remotely capable of providing the kind of consistent nurturance, structure, guidance and
stimulation, and physical protection that a child requires.”
Mr. Cooper was qualified as an expert in therapy and behavioral assistance. He testified he saw both
R.W. and T.H., Jr. in therapy on a regular basis over an extended period of time. He was adamant
that the boys should not have any contact with their mother because they connect the abuse they
suffered to their mother. He stated that they had a profound fear of M.W. and regressed emotionally
and psychologically when a photograph of her was shown to them. Cooper explained that both
children had issues with fear and safety, suffered from night tremors, and were terrified even at the
sight of a bathtub. He testified that a close relationship with foster parents was critical in order for
the boys to have any chance of developing a sense of normalcy. He said that any relationship
between the boys and M.W. would be emotionally traumatic and psychologically disruptive to them.
On June 8, 2006, Judge Grant gave an oral decision terminating the parental rights of M.W. to R.W.,
T.H., Jr., and the deceased F.W.
We next address the larger issue of M.W.’s right to receive F.W.’s settlement recovery and whether
any legal or equitable ground precludes her from inheriting F.W.’s estate by intestacy. The civil
action resulting in the $1 million settlement was based on this State’s Wrongful Death Act, N.J.S.A.
2A:31-1 to 31–6, and Survivor’s Act, N.J.S.A. 2A: 15-3. Actions to recover damages for the
wrongful killing of a child are wholly statutory since no right existed at common law prior to the
passage of Lord Campbell’s Act. Johnson v. Dobrosky, 187 N.J. 594, 605, 902 A. 2d 238 (2006); Negron
v. Llarena, 156 N.J. 296, 308, 716 A.2d 1158 (1998). Under this State’s Wrongful Death Act, recovery
is limited to pecuniary losses, which in the case of a child, is limited to loss of future financial
contributions and loss of companionship and care. Green v. Bittner, 85 N.J. 1, 14-15, 424 A.2d 210
(1980). Proceeds of a recovery under the Wrongful Death Act are not part of the decedent’s estate.
The recovery is for the exclusive benefit of those entitled to take the decedent’s personal property
by intestacy. Miller v. Estate of Sperling, 166 N.J. 370, 383-84, 766 A.2d 738 (2001); Gershon v. Regency
Diving Ctr., 368 N.J. Super. 237, 246, 845 A.2d 720 (App. Div. 2004). N.J.S.A. 2A:31-4. In contrast,
an action under the Survivor’s Act permits recovery of pecuniary and non-pecuniary damages prior
to death, but, as with the Wrongful Death Act, recovery belongs to the decedent’s estate, which, in
the case of a person without a will or a child, passes to those entitled to inherit by intestacy. N.J.S.A.
2A:15-3.
Most state statutes prohibit recovery for wrongful death of a child to a parent who abandons or fails
to support the child by denying the parent the right to bring a wrongful death action or share in
damages recovered in such an action. See Emile F. Short, Parent’s Desertion, Abandonment, or Failure to
Support Minor Child as Affecting Right or Measure of Recovery for Wrongful Death of Child, 53 A.L.R.3d 566,
568-69 (1973); see also Allison M. Stemler, Note, Parents Who Abandon or Fail to Support Their Children
and Apportionment of Wrongful Death Damages, 27 Brandeis . Fam. L. 871 (1989. However, neither the
New Jersey Wrongful Death Act nor the Survivor’s Act contain an exception to the distribution
53

mandated by the intestacy act. Evidence of mistreatment or abandonment by a parent of a child may
bear on future financial contributions to the parent or the loss of companionship and advice to the
parent and thereby affect the damage recovery. N.J.S.A. 2A:31-5. However, actions by a parent
contrary to the welfare of the child such as desertion, abandonment, or failure to support do not
preclude recovery of damages for wrongful death of the child. See In re Rogiers, 396 N.J. Super. 317,
325, 933 A.2s 971 (App. Div. 2007); In re Estate of Rozet, 207 N.J. Super. 321, 326, 504 A.2d 145
(LawDiv. 1985). Compare Johnson, supra 187 N.J. at 610-11, 902 A.2d 238 with Green, supra, 85 N.J. at
12-17, 424 A.2d 210.
In the absence of a surviving spouse, domestic partner, or surviving descendents, parents are next in
line to receive the estate of an intestate child, N.J.S.A. 3B:5-4(b), and siblings inherit only if there are
no surviving descendents or parents, N.J.S.A. 3B:5—4(c). Accordingly, absent any exception or
exclusion, the intestacy law of this State provides that M.W. is entitled to the entire estate of F.W. to
the exclusion of R.W. and T.H., Jr.
Intestacy statutes provide a will for those who have neglected to make their own or, as in this case,
are adjudged incompetent. See generally, Ronald J. Scalise, Jr., Honor Thy Father and Mother?: How
Intestacy Law Goes Too Far in Protecting Parents, 37 Seton Hall L. Rev. 171 (2006). They are a necessary
response to the fact that most Americans die without wills. Id. at 174. The intestacy laws are thought
to fulfill the presumed intent of decedent and, alternatively, to embody society’s judgment as to how
the decedent’s property should devolve. Id. at 173. See also Unif. Probate Code, art. II, pt. 1, gen. smt.
(1969) (intestate succession “should in the main express what the typical intestate would have
wished had he expressed his desires in the form of a will or otherwise”). However, case law has held
that where there is no will, the distribution of a decedent’s estate must be in accord with the order
specified in the intestacy statute even when the decedent expresses a contrary intent. Rozet, supra, 207
N.J.Super. at 326, 504 A.2d 145; Maxwell v. Maxwell, 122 N.J. Eq. 247, 193 A. 719 (Ch. 1937) next of
kin take by intestacy is not in pursuance of the testator’s intention, but by force of law, regardless of
what his intentions were).
For those dissatisfied with distribution by intestacy, the simple answer is to execute a will. But that
option is not available to a seven-year-old child. A child is forced to leave property to his or her
parents even if the parents are unworthy. If we could consider F.W.’s presumed intent to distribute
his $1 million estate, he would in all likelihood mirror the fear and anger that his brothers displayed
toward M.W. and elect to exclude her from any inheritance in favor of his brothers. However, our
case law interprets the language of N.J.S.A. 3B:5--4 to rule out any judicially created exception to
intestacy distribution based on the wishes of the child, even though the child cannot opt out of the
default distribution of the intestacy statute. Rogiers, supra, 396 N.J.Super. at 325-26, 933 A.2d 971.
Therefore, the intestacy statute does not preclude M.W. from receiving F.W.’s entire estate in spite
of any presumed intent of F.W. to the contrary or M.W.’s unworthiness.
The exception to the mandated distribution of the intestacy statute is the “slayer rule,” codified in
N.J.S.A. 3:B7-1.1, which states that an intentional killer forfeits all benefits from the decedent’s
estate, whether inherited by will or intestacy. If the victim dies intestate, the estate passes through as
if the killer disclaimed his share. The statute codified the common law of this State and the equitable
principle that wrongdoers should not be allowed to profit from wrongdoing. See, e.g., Neiman v. Hurff,
11 N.J. 55, 93 A.2d 345 (1952); Wasserman v. Schwartz, 364 N.J. Super. 399, 836 A. 2d 828 (Law Div.
2001); Estate of Wolyniec v. Moe, 94 N.J.Super. 43, 226 A.2d 743 (Ch. Div. 1967); cf. D’Arc v. D’Arc, 175
N.J.Super. 598, 421 A.2d 602 (App. Div.1980), certif. denied, 85 N.J. 487, 427 A.2d 579, cert. denied, 451
54

U.S. 971, 101 S.Ct. 2049, 68 L.Ed. 2d 350 (1981)(husband who tried to have wife murdered held not
entitled to equitable distribution in divorce action). In this case, however, the slayer rule is
inapplicable since both the statute and prior case law require an intentional killing, Estate of Artz v.
Artz, 198 N.J.Super. 585, 487 A.2d 1294 (App. Div. 1985, and M.W. did not kill her son, although
her cruelty and abandonment ultimately led to his death in Sherry Murphy’s apartment.
A majority of other states have adopted a statutory exception to the mandatory succession by
intestacy statutes applicable to children to extinguish the inheritance rights of “bad parents.” Scalise,
supra, at 193; see, e.g. N.Y. Est. Powers & Trusts, § 5-1.2(a); Conn. Gen. Stat. Ann. § 45(a)–436(g);
N.C. Gen. Stat. § 31A-2 (1984); and 20 Pa. Cons. Stat. § 2106(a). Most of these statutes are directed
to parental abandonment and non-support, although several preclude inheritance by a parent who
has been convicted of crimes against the child including physical abuse, sexual abuse, and
endangering the child’s welfare. See, e.g., 20 Pa. Const. Stat. §2106(a); see also Or. Rev. Stat. § 112.465
(2005); Scalise, supra, at 102. Furthermore, both the Restatement of Property and the Uniform
Probate Code bar inheritance by a parent who has abandoned and refused to support the child.
Restatement (Third) of Property: Wills & Other Donative Transfers, § 2.5(5); Unif. Probate Code, §
2.114(c), 8 U.L.A. 91 (1998). But New Jersey has no bad parent statute to preclude parental
inheritance by intestacy, and it has not adopted the applicable sections of the Restatement of
Property or the Uniform Probate Code.
In Rozet, supra, 207 N.J. Super. At 323, 504 A.2d 145, a Law Division decision, the father, who
abandoned his daughter six months after her birth and failed to pay any child support, was held
entitled to collect his intestate share of her estate. Rozet was recently cited with approval by another
panel in Rogiers, supra, 396 N.J.Super. at 324-25, 933 A.2d 971. In that case the child was severely
handicapped from birth as a result of medical malpractice. Her mother pursued the malpractice
claim and obtained a substantial recovery that was placed in trust for the daughter. When the child
died, her father sought half of the trust balance of over $1 million as his intestate share. The mother
argued that he did not contribute to the child’s support and therefore did not qualify as her parent
and should not receive any part of the child’s estate. The court rejected the argument, holding the
father was qualified as a parent under the Parentage Act, N.J.S.A. 3B:5-10, and the requisite legal
relationship qualified him to inherit as a parent through intestacy. The court further rejected the
claim that the New Jersey Probate Code should be read to include the portion of the Uniform
Probate Code section that prohibits inheritance when the parent supports the child. But the court
found the argument was without substance, noting that the Legislature had amended the Probate
Code twice since Rozet and had not adopted the provision.
We must conclude that with the exception of the slayer rule, the intestacy law of this State is blind to
the worthiness of a parent inheriting from a deceased child. Accordingly, M.W. has an enforceable
legal right to inherit the entire $1 million in F.W.’s estate despite factual findings of cruel and abusive
conduct toward her son unless her parental rights are terminated in a Title 30 action or there are
other lawful grounds to interdict her from receiving the inheritance.
M.W. argues that her parental relationship terminated on the death of F.W. and that therefore no
cause of action could lawfully exist under Title 30. However, under the decisional law of this State, a
court may exercise equitable powers in unusual circumstances to grant posthumous relief in order to
prevent an inequity.
In re Estate of Santolino, 384 N.J.Super. 567, 895 A.2d 506 (Ch Div. 2005), the issue was whether the
55

court 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
month before he died intestate. The decedent’s sister filed a caveat against granting letters of
administration, contending that the marriage was a nullity. The widow argued that the validity of the
marriage could not be challenged because the decedent’s death terminated the marriage. The court
held that under its equitable powers the validity of the marriage could be addressed after the
decedent’s death because “[a] court of equity is empowered to prevent one party from acquiring the
benefits of marriage when the marriage itself was somehow illicit.” Id. at 584, 895 A.2d 506. See also
Carrv. Carr, 120 N.J. 336, 576A.2d 872 (1990) (holding that when the husband died during the
pendency of a divorce action, the wife may pursue a claim for equitable distribution); Fulton v. Fulton,
204 N.J.Super 544, 499 A.2d 542 (Ch Div. 1985) (holding that final judgment of divorce could be
adjudicated after husband’s death based on prior testimony in order to prevent inequity to
decedent’s children); Jacobson v. Jacobson, 146 N.J.Super. 491, 370 A.2d 65 (Ch Div. 1976) (after
husband charged with wife’s murder, court declined to abate divorce action and substituted wife’s
estate as a party for purposes of equitable distribution). These cases stand for the proposition that in
exceptional circumstances a court may apply principles of equity to posthumously grant relief from
the plain reading of a statute based on the equitable principle that no one should be allowed to profit
directly or indirectly from his own wrongdoing, a principle described by our Supreme Court as “so
essential to the observance of morality and justice [that it] has been universally recognized in the
basis of civilized communities for centuries and is as old as equity. Its sentiment is ageless.” Neiman,
supra, 11 N.J. at 60-61, 93 A.2d 345.
While the guardianship statute contemplates a surviving child, N.J.S.A. 30:4C-15(a), there is no
limitation on a court’s posthumous application of the statute. See Santolino, supra, 384 N.J.Super.
at583, 895 A.2d 506(noting that the annulment statute did not express limitation upon its
posthumous application). We agree with Judge Grant that the unique and extraordinary
circumstances of this case are such that the Family Court in the exercise of its equitable powers may
terminate M.W.’s rights to inherit from F.W. nunc pro tunc. The clear public policy of this State is to
protect and preserve the welfare of its children, and, to this end, there is reposed in the Family Court
inherent equitable authority to fashion appropriate remedies to protect the welfare of children and
advance their best interests. In re Adoption of a Child by W.P., 163 N.J. 158, 195, 748 A.2d 515 (2000);
In re Guardianship of J.C., 129 N.K. 1, 10, 608 A.2d 1312 (1992).
How cruel, ironic, and inequitable it would be to hold that M.W. retained the right to inherit $1
million from the child she burned, abused, neglected, and abandoned. Equity, morality, and
common sense dictate that physically or sexually abusive parents have no right of inheritance by
intestacy. The contrary result would bespeak a thoughtless jurisprudence warranting public
disrespect. The applicable principle of equity is that “equity will not suffer a wrong without a
remedy.” Crane v. Bielski, 15 N.J. 342, 349, 104 A.2d 651 (1954). In these extraordinary
circumstances, the inherent equitable powers of the Family Part prevents the unjust enrichment of
M.W. which would result from the mechanical application of the intestacy statute.
We therefore affirm the judgment by Judge Grant and hold that in these extraordinary
circumstances the parental rights of M.W., including any residual right of inheritance, were
terminated pursuant to N.J.S.A. 30:4C-15.1. Concurrently, we hold that equitable principles inherent
in the Family Court proscribe the recovery or receipt of any portion of F.W.’s estate by M.W.,
thereby causing her disinheritance, and we impose a constructive trust on F.W.’s estate with the
direction that the funds are to be conveyed to F.W.’s brothers as proper recipients under the
56

intestacy succession rules.
Affirmed.
Notes, Problems, and Questions
1. In Fleming, the Court ruled that because Thomas died intestate without any legal heirs his estate
should escheat to the State of Washington. Why was Thomas’ half-brother prevented from
inheriting? Did the Court correctly decide that issue?
2. In Fleming, Thomas was never adopted. He remained in the permanent custody of the Catholic
Charities of the Diocese of Seattle. Should an exception have been made to permit his mother to
inherit? Should the estate have been given to the charity instead of the state?
3. In New Jersey Div., why was the decedent’s mother prevented from inheriting his estate?
4. In the above-cases, the biological mothers were not permitted to take under the intestacy system.
The legal definition of parent varies. Some states have started recognizing an expansive definition of
“parent” for purposes pertaining to custody and child support. These theories of parenthood focus
upon the benefit that broadly defining “parenthood” provides for children. Nevertheless, if courts
rely upon factors other than biology and adoption to establish the legal parent-child relationship,
that may impact the ability of adults to inherit from children. A few of those theories are set-forth
below.
(1) Psychological Parent- Professor Katharine T. Bartlett is one of the main proponents of the
recognition of a psychological parent. According to Professor Bartlett, a psychological
parent is an adult who assists in the provision of necessities that would typically be supplied
by a child’s nuclear family. These needs may be physical, emotional and/or social. Professor
Bartlett has suggested the use of a three-part test to identify a potential psychological parent.
In order to be recognized as a psychological parent, the adult must satisfy three conditions.
First, the adult must be in physical possession of the child for at least six months prior to
seeking parental status. Second, when seeking parental status, the adult must be motivated by
a desire to take care of the child and the child must consider the adult to be his or her
parent. Finally, the adult seeking parental status must prove that his or her relationship with
the child was the result of the legal parent’s consent or a court order.
(2) Functional Parent- The functional parent is similar to the psychological or social parent. The
focus is on the actions the person takes after the birth of the child. This theory of parentage
has been put forth by Professor Nancy Polikoff. According to Professor Polikoff, in order
for a person to be classified as a functional parent, the child’s legally recognized parent must
create a relationship between the child and that person. In addition, the legal parent must
intend for that relationship to be parental in nature. Finally, the person must maintain a
functional relationship with the child.
(3) Intentional Parent-The focus is upon the person’s behavior prior to the birth of the child.
Courts have taken this approach when determining maternity in surrogate cases. The inquiry
is whether the person acted in such a way to indicate that he or she intended to parent the
57

child. Professor Marjorie Maguire Shultz states that legal parenthood should be determined
by evaluating the intentions of the parties. Specifically, Professor Shultz opines “intentions
that are voluntarily chosen, deliberate, express and bargained for ought to determine legal
parenthood.”
(4) De Facto Parent- Professor Charles P. Kindregan, Jr. advocates legally recognizing a de facto
parent. This approach has been championed by the drafters of the ALI Principles of the Law
of Family Dissolution. Pursuant to that document, a de facto parent must satisfy the
following conditions: (1) live with the child for two years or more; (2) have non-financial
motives; (3) present evidence of an agreement by a legal parent or evidence of a complete
lack of caretaking function by the legal parent; and (4) perform caretaking duties on a regular
basis at least on par with the duties performed by the parent serving as the child’s primary
caretaker.
5. What impact could the recognition of several classes of parents have on the intestacy system?
6. In deciding whether or not to recognize a parent-child relationship based upon something other
than biology, what factors should the courts consider?
7. Should the parental theories discussed above be implemented into the current intestacy statutory
regime or should courts be given the flexibility to apply the doctrines on a case by case basis? What
are the pros and cons of each approach?
8. The purpose of the intestacy system is to carry out the presumed intent of the testator. Will that
purpose be better carried out if the courts recognize different types of legal parent-child
relationships?
2.5.2

Other Ancestors and Collaterals

If an intestate decedent is not survived by children or parents, it is logical that the estate
would go to the decedent’s grandparents. However, the intestacy system does not operate in that
manner. In cases where there are no surviving descendants or parents, the decedent’s estate goes to
his or her collateral kindred. There are two set of collaterals—first line and second line. First line
collaterals include the decedent’s siblings4 who take if he or she is not survived by children or
parents. The decedent’s nieces and nephews step into the shoes of any siblings who predecease the
decedent. The decedent’s aunts and uncles are referred to as second line collaterals. The second line
collaterals may take if the decedent is not survived by first line collaterals.
Example:
Willis never married or fathered children. His parents predeceased him. Willis had three sisters,
Beverly, Cissy, and Whitney and one brother, Theo. Cissy predeceased Willis leaving behind two
sons, Vance and Donovan. Willis died intestate survived by Beverly, Whitney, Theo, Vance and
Donovan.
Most jurisdictions have followed the UPC’s approach and treat half-siblings the same as whole sibling. (UPC § 2-107
“Relatives of the half-blood inherit the same share they would inherit if they were of the whole blood.”
4

58

Explanation:
Willis estate will be divided into four parts. The intestate distribution of the estate will be as follows:
Beverly (1/4), Whitney (1/4) and Theo (1/4). Cissy’s one-fourth will be divided between her two
sons, Vance and Donovan who will each get 1/8 of Willis’ estate.
If the decedent dies intestate without leaving children, parents, or first-line collaterals, the
court must determine who should take. The court’s decision will depend on the approach that has
been adopted by the legislature. Courts typically have two options to apply—the parentelic system or
the degree-of-relationship system. The parentelic scheme authorizes the probate court to start at the
decedent’s grandparents and go down the line to find an heir. Under that system the options are
grandparents and their descendants, great-grandparents and their descendants, great-great
grandparents and their descendant’s etc. The degree-of-relationship approach requires the court to
distribute the decedent’s estate to the surviving relative that is the closest kin. For example, a first
cousin would take before a fifth cousin. Finding the next of kin who is not a first line collateral can
be complicated.

In re Wolbert’s Estate, 135 A.2d 533 (N.J. Super. Ct. App. Div. 1957)
CLAPP, S.J.A.D.
The question brought before the court by this appeal is whether under the descent and distribution
statute a first cousin of Josephine Wolbert, the intestate, and issue of deceased first cousins, all
descendants of Miss Wolbert’s grandparents, take her intestate property to the exclusion of Mrs.
Marie E. W. Spratt, a second cousin who is a descendant, not of Miss Wolbert’s grandparents, but of
her great grandparents. The Atlantic County Court, Probate Division, Judge Naame sitting, held they
take to the exclusion of Mrs. Spratt, and the latter appeals. The question was raised in a proceeding
brought by Mrs. Spratt in the County Court to set aside letters of administration granted by the
surrogate as to the estate of Miss Wolbert.
Josephine Wolbert died intestate on November 3, 1956, a resident of Atlantic City, leaving neither
spouse, nor issue, nor parent, nor any brother or sister or issue of brother or sister. Her closest next
of kin was a first cousin, J. Walter Steel, related to her in the fourth degree. She also left surviving
three children of a deceased first cousin, Francis P. Steel, Amanda Fell Steel and Alfred Steel. These
four persons are issue of an uncle, a brother of the intestate’s mother. Furthermore, Miss Wolbert
was survived by Gretchen Wolbert and Priscilla Alden Riesenberg, issue of deceased first cousins
who were themselves children of another uncle of Miss Wolbert, a brother of her father.
The Atlantic County Surrogate’s Court issued letters of administration to Alfred Steel, upon the
presentation to the court of renunciations from J. Walter Steel, Francis P. Steel and Amanda Fell
Steel, containing a request that letters be issued to him. Mrs. Spratt then brought a proceeding in the
County 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
the ground that she is one of the next of kin and had never been given notice of Alfred Steel’s
application for administration. The right to administration belongs to the spouse and next of kin if
they 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
applicable to the Surrogate’s Court by R.R. 5:4-1. In the course of the proceeding before the County
Court, Gretchen Wolbert and Priscilla Alden Riesenberg approved the issuance of the letters to
59

Alfred Steel.
There is no merit whatever in Mrs. Spratt’s claim that she is one of the next of kin. The point is
disposed of by that sentence of N.J.S. 3A:4-5, N.J.S.A., which we have italicized below:
‘If there be no husband or widow, child or any legal representative of a child, nor a
parent, brother or sister, nor a legal representative of any brother or sister, then the
intestate’s property, real and personal, shall descend and be distributed equally to
the next of kindred, in equal degree, of or unto the intestate and their legal
representatives. Representatives of ancestors nearest in degree to the decedent shall take to the
exclusion of representatives of ancestors more remote in degree.’
The italicized clause in the statute provides in effect that where neither spouse, issue, parent, brother
or sister or issue of brother or sister survive, then descendants of a grandfather-in this case a first
cousin and, Per stirpes, issue of deceased first cousins, paternal and maternal, In re Allen’s Estate, 23
N.J. Super. 229, 92 A.2d 857 (Ch Div. 1952), In re Miller’s Estate, 103 N.J. Eq. 86, 141 A. 676 (Prerog.
1928), affirmed 104 N.J.Eq. 491, 146 A. 915 (E. & A. 1929) take to the exclusion of other
descendants of a great grandfather, such as Mrs. Spratt. As stated in the Foreword to Title 3A, p. xi,
‘this seems just. A person is more apt to know and therefore to want to provide for the lines of
descent closer to him.’
The aim of this clause may be made more apparent if we observe the state of the law as to the
distribution of personal property, as it stood before this statute. Under the rule obtaining then, if an
intestate should leave him surviving a great uncle as his next of kin nearest in degree, call him A, and
if he also leaves cousins who are issue of deceased great uncles (they would be descendants of the
intestate’s great grandparents) and furthermore leaves cousins who are issue of deceased first
cousins (they would be descendants of the intestate’s grandparents), all the descendants of the great
grandparents would take per stirpes to the exclusion of all the descendants of the grandparents. See
Smith v. McDonald, 71 N.J.Eq. 261, 266, 65 A. 840 (E. & A. 1907) (7 N.J.Prac. 290, 291), cf. In re
Fisher’s Estate, 17 N.J.Super. 207, 85 A.2d 562 (Cty. Ct. 1952), holding that distribution is made to
the living kinsman nearest in degree, viz. A, a great uncle of the fourth degree, and ‘the
representatives of those dead, who, if living, would answer the same description,’ that is (in the
supposititious case) the representatives of deceased Great uncles. The cited statute rejected this
admittedly ‘fortuitous’ (74 N.J.Eq., at page 268, 65 A. at page 842) rule. It adopted instead what has
been called the parentelic system, a system that obtained under the English law of descent. Bordwell,
‘Law of Succession,’ 8 Rutgers L. Rev. 164 (1953); 2 Pollock and Maitland, History of English Law
(2d ed. 1923), 295-297; 3 Holdsworth, History of English Law, (2d ed.) 143-145; Smith v. Gaines, 36
N.J.Eq. 297, 299 (E. & A. 1882); Smith v. McDonald, 71 N.J.Eq. 261, 267, 65 A. 840 (E. & A. 1907).
Contrast the parentelic system obtaining under 6 Mass. Laws Annot., c. 190, s 3(6) (1955) (citations
omitted).
Mrs. Spratt was therefore not one of the next of kin of Miss Wolbert. That being so, she did not
even have the standing to institute the proceeding in the County Court. For, under R.R. 5:3-4(a),
only a ‘person aggrieved’ may review a judgment of the Surrogate’s Court. A person is not aggrieved
by a judgment unless his personal or pecuniary interests or property rights have been injuriously
affected thereby. In re Lent, 142 N.J.Eq. 21, 22, 59 A.2d 7 (E. & A. 1948). It follows that Mrs. Spratt
was not aggrieved by the Surrogate’s Court judgment here.
60

Appeal dismissed, with costs to respondents.
2.5.3

Laughing Heirs

Laughing heirs are relatives that are so remote from the decedent that they may laugh if they
discovered that he or she died. These persons take if the decedent dies without surviving spouse,
children, parents, siblings, nieces, nephews, aunts, uncles, grandparents etc. The problem with
remote heirs is that it takes a lot of time and resources to discover and locate them. As I have
previously stated, the primary objective of the intestacy system is to carry out the decedent’s
presumed intent. Because that is the goal it probably does not make sense for the court to track
down 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
inheritance to descendants of the decedent, parents and their descendants, and grandparents and
collateral relatives descended from grandparents. The majority of jurisdictions have adopted this
approach.
2.5.4

Escheat

Uniform Probate Code § 2-105 No Taker.
If there is no taker under the provisions of this Article, the intestate estate passes to the [state].
Once the decedent’s blood line runs out, his or her estate goes to the state if he or she dies
intestate. Very few estates escheat to the state because people tend to keep an eye on relatives who
have money and/or property. Another reason why the state seldom gets the estate is that the
Internet is full of companies that specialize in locating missing heirs. The companies will locate
missing heirs in exchange for a percentage of the estate.
2.5.6

Advancements

The intestacy system is meant to distribute property that the decedent did not dispense in a
validly executed will. The advancement doctrine comes into play when the decedent gives an heir
property prior to his or her death. The advancements doctrine is based on the theory that a parent
intends to treat all of his or children in the same way. Thus, if a parent gave a child a significant
lifetime gift of real or personal property, the common law imposed a presumption that the parent
intended an advancement. The child who received the gift had the burden of overcoming the
presumption in order to avoid having the gift counted against his or her share of the estate. The
common law doctrine of advancements still exists, but it has been codified. Under most of the
current statutes, the court presumes that the lifetime gift was not mean to be an advancement. Some
states have followed the Uniform Probate approach requiring some type of writing indicating that an
advancement was intended.

61

Tankesley v. Thompson, 469 S.E.2d 853 (Ga. App. Ct. 1996)
POPE, Presiding Judge.
Richard Tankesley, Robert Tankesley, William Tankesley and John Tankesley are the adult sons of
Stella Lee Kays, who died intestate on July 24, 1992. During the administration of Kays’ estate,
Richard and the court-appointed administrator, Mary Thompson, asserted that Kays had advanced
approximately $70,000 to Robert during the last two years of her life. Robert denied this assertion.
After extensive discovery and several hearings on the matter, the probate court ruled that the
$70,000 disbursed to Robert was not an advancement, but rather constituted loans or investments
made to Robert and/or businesses he had started-primarily Southern Broasted Foods, Inc. (SBF).
Concluding that the probate court did not err in reaching its determination, we affirm.
“An advancement is any provision made by a parent out of his estate, for and accepted by a child,
either in money or property, during the parent’s lifetime, over and above the obligation of the parent
for maintenance and education.” OCGA § 53-4-50(a). In this state, when a parent dies intestate, a
substantial gift of money or property from the parent to his or her child during the parent’s lifetime
is ordinarily presumed to be an advancement. See Bowen v. Holland, 184 Ga. 718, 720(1), 193 S.E. 233
(1937); Neal v. Neal, 153 Ga. 44, 45(3), 111 S.E. 387 (1922). This presumption, however, is rebuttable
Id. The relevant inquiry in cases such as this is the decedent’s intent at the time of the transactions in
question. Berry v. Berry, 208 Ga. 285, 289(2), 290, 66 S.E.2d 336 (1951). The determination as to the
decedent’s intent is to be made by the finder of fact-either the jury, or a judge in a case tried without
a jury. See Smith v. Varner, 130 Ga. App. 484, 203 S.E.2d 717 (1973).
In the instant case, all of the money in question was disbursed in the form of numerous checks
written by Kays. All of the checks except one were either payable to SBF or named SBF or another
business entity in the memo portion thereof. Many of the checks also included the notation
“investment” or “loan.” Robert testified by affidavit that at the time Kays wrote each check, she
indicated that the money was an investment. Robert further testified that at various times during her
life, Kays expressed her intent that at the time of her death her estate should be divided equally
between her four children, regardless of any gifts she previously may have given to any particular
child. The affidavits of William and John corroborate that this was Kays’ intent, as do the various
wills, though not valid, that Kays executed during her life. Additionally, Kays’ attorney testified by
affidavit that as far as he was aware, “at the time of her death, [Kays] contemplated that her estate,
as it existed at the time of her death, would be divided equally between her four sons,
notwithstanding any gifts she may have made to them during her lifetime.” The record also shows
that Kays was a shrewd business woman who often invested in other businesses, and there is some
evidence that she expected a return on her investment in SBF.
Based on the above evidence, we hold that the probate court, as the sole factfinder and judge of
witness credibility in this case, did not err in concluding that Robert had met his burden of rebutting
the presumption that the disbursements constituted advancements. The probate court was
authorized to conclude that Robert had demonstrated with clear and satisfactory evidence that Kays’
intent when she made the disbursements was that they be treated as loans or investments rather than
advancements. Accordingly, we affirm the probate court’s ruling.
Judgment affirmed.
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Uniform Probate Code § 2-109
(a) If an individual dies intestate as to all or a portion of his [or her] estate, property the decedent
gave during the decedent’s lifetime to an individual who, at the decedent’s death, is an heir is treated
as an advancement against the heir’s intestate share only if (i) the decedent declared in a
contemporaneous writing or the heir acknowledged in writing that the gift is an advancement or (ii)
the decedent’s contemporaneous writing or the heir’s written acknowledgment otherwise indicates
that the gift is to be taken into account in computing the division and distribution of the decedent’s
intestate estate.
(b) For purpose of subsection (a), property advanced is valued as of the time the heir came into
possession or enjoyment of the property or as of the time of the decedent’s death, whichever first
occurs.
(c) If the recipient of the property fails to survive the decedent, the property is not taken into
account in computing the division and distribution of the decedent’s intestate estate, unless the
decedent’s contemporaneous writing provides otherwise.
If the court concludes that an advancement was intended, it relies upon the hotchpot
method in order to determine the amount of the estate to distribute to the child who received the
prepayment. The hotchpot method comes from the common law, but it has been codified.

Va. Code Ann. § 64.206. Advancements brought into hotchpot
When the descendant of a decedent receives any property as an advancement from the decedent
during the decedent’s lifetime or under the decedent’s will, and the descendant, or any descendant of
his, is also to receive a distribution of any portion of the decedent’s intestate estate, real or personal,
the advancement shall be brought into hotchpot with the intestate estate and the descendant is
entitled to his proper portion of the entire intestate estate, including such advancement.
2.5.7

Computation of Shares-Hotchpot Method.

Example:
Zeda died intestate, survived by her four children, Denise, Jana, Melanie and Robert. Zeda’s probate
estate was worth $200,000. While she was living, Zeda gave $50,000 to Denise and $10,000 to
Melanie. Zeda left a written instrument declaring that she intended the gifts to Denise and Melanie
to be treated as advancements.
Explanation:
The first step in the hotchpot method is to add the value of the advancements to the value of Zeda’s
probate estate. This combined figure is called the hotchpot estate.

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In this case, Zeda’s hotchpot estate preliminarily comes to $260,000 ($200,000 + $50,000 +
$10,000). The $260,000 is divided equally among Denise, Jana, Melanie and Robert, so they are each
entitled to $65,000. Jana and Robert each get $65,000 from the probate estate. $70,000 remains in
the probate estate to be divided between Denise and Melanie. Denise has already received $50,000,
so she receives $15,000 from the probate estate. The remaining $55,000 in the probate estate goes to
Melanie who had already received $10,000.
Problems and Questions
1. Would the outcome of the Tankesley case have been the same in a UPC jurisdiction?
2. During his lifetime, Barry advanced $20,000 to his son, Alex. Barry died intestate, leaving a
probate estate of $100,000. Barry was survived by his daughter, Kellie, and by Alex’s child, Judy.
How should Barry’s estate be distributed in a UPC jurisdiction?
3. Jean had five children, Phillip, Mona, Tommy, Suzanna, and Rita. During her lifetime, Jean did the
following: (1) paid $120,000 for Mona to attend graduate school; (2) gave Suzanna $50,000 to pay
medical bills; (3) loaned Rita $27,000 to make a down payment on a condo; and (4) gave Tommy
$10,000 to take a trip to Europe. While she was sick, Phillip stole $30,000 from Jean’s bank account.
Jean died intestate survived by her five children. Jean’s estate was worth $500,000. Jean left a note
stating that she loved all of her children equally. She told her friend that she was not executing a will
because the lawyer told her that her children would split her estate. Which, if any, lifetime gift
should be considered to be an advancement? How should Jean’s estate be distributed if no
advancements exists? If advancements exist?

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Chapter Three: Intestacy System (Surviving Spouse)
3.1

Introduction

When a person dies intestate, the surviving spouse is entitled to a share of the community
property5 belonging to the decedent and a share of the decedent’s separate property.6 The law of
intestacy varies from state to state. Therefore the portion of the decedent’s estate that goes to the
surviving spouse may be different.7 For the sake of uniformity, I have included the Uniform Probate
Section that deals with the inheritance of the surviving spouse. The UPC increases the share that the
surviving spouse takes. Instead of including the spouse in Chapter Two, I chose to discuss the rights
of the surviving spouse in a separate chapter. I selected that approach because I wanted to
emphasize that the spouse is not like other heirs of the decedent. For example, a decedent can easily
disinherit his or her child, but it may be difficult for that person to prevent his or her spouse from
taking a portion of the estate.8 It is also important to note that the spouse gets the first opportunity
to take from the estate.9 The spouse has several options. If the decedent leaves a validly executed
will, the spouse can choose to receive his or her portion under the will. However, if the spouse is
not satisfied with the terms of the will or if the spouse is intentionally omitted from the will, the
spouse can renounce the will and take his or her elective share.10 Some jurisdictions still recognize
dower11 and cutesy,12 so the surviving spouse can decide to exercise those rights.

States that have a community property system include Arizona, California, Idaho, Louisiana, Nevada, New Mexico,
Texas, Washington and Wisconsin. Community property refers to money that is earned and property that is bought
during the marriage. In Idaho, Louisiana and Texas, income from separate property is community property. The
spouses own community property in undivided, equal shares. Either spouse may dispose of his or her half of the
community property at death; the other half belonging to the surviving spouse.
6
Separate property refers to property that belongs exclusively to one spouse or the other.
7
Mongold v. Mayle, 452 S.E.2d 444, 447 (W. Va. 1994)(“[t]he purpose behind the elective-share provision ………is to
prevent spousal disinheritance in order to ensure that the surviving spouse's contribution to the acquisition of property
during the marriage is recognized and in order to ensure that the surviving spouse has continuing financial support after
the death of his or her spouse.”)
8 This can be changed by the execution of a valid pre-nuptial agreement. Those types of arrangements are discussed in
family law and property law courses. Thus, the information in this chapter assumes that a relevant pre-nuptial agreement
does not exist.
9
Estate usually refers to a person’s probate estate. However, some jurisdictions have permitted the surviving spouse’s
elective share to apply to the testator’s nonprobate property. See Newman v. Dore, 9 N.E.2d 966 (N.Y. 1937); Dreher v.
Dreher, 634 S.E.2d 646 (S.C. 2006).
10
In the majority of jurisdictions, elective share has replaced dower and curtesy rights. See, e.g., 20 Pa. C.S.A. § 2105
(West 2016). UPC § 2-213 permits a surviving spouse to waive his or her elective share in writing.
11
Dower was a common law doctrine that granted a widow a life estate in one-third of all land in which her deceased
husband had been seised during their marriage and that was inheritable by the descendants of husband and wife. The
right of dower attaches the moment the man obtains title to land or upon marriage, whichever is later. Dower stays
inchoate until the man dies. After his death, the woman’s dower becomes possessory. During the man’s lifetime, once
dower attaches, he cannot sell the land free and clear of the wife’s dower interest. Even a bona fide purchaser cannot cut
off the wife’s dower without her consent. See R.C. § 21.03.02 (West 2016)(Ohio); M.C.L.A. § 558.1 (West 2016).
12
At common law, a man was given a support interest in his wife’s land referred to as curtesy. Curtesy was similar to
dower, but it contained the following differences: (1) the man did not obtain curtesy if no children were born during the
marriage, and (2) the man’s interest in his deceased wife’s property was a life estate in the land instead of the one-third
interest reserved for surviving wives. In a few states curtesy still exists, but it is pretty much gender-neutral as is dower.
See A.C.A. § 28-11-301(b)(West 2016)(Arkansas); K.R.S § 392.02 (West 2016)(Kentucky).
5

65

Uniform Probate Code § 2-102. Share of Spouse.
The intestate share of a decedent’s surviving spouse is:
(1) the entire intestate estate if:
(i) no descendant or parent of the decedent survives the decedent; or
(ii) all of the decedent’s surviving descendants are also descendants of the surviving spouse
and there is no other descendant of the surviving spouse who survives the decedent;
(2) the first [$200,000], plus three-fourths of any balance of the intestate estate, if no descendant of
the decedent survives the decedent, but a parent of the decedent survives the decedent;
(3) the first [$150,000], plus one-half of any balance of the intestate estate, if all of the decedent’s
surviving descendants are also descendants of the surviving spouse and the surviving spouse has one
or more surviving descendants who are not descendants of the decedent;
(4) the first [$100,000], plus one-half of any balance of the intestate estate if one or more of the
decedent’s surviving descendants are not descendants of the surviving spouse.
Problems
1. Loretta was married for twelve years to Milton. Loretta and Milton had two children together,
Maggie and Rod. After Loretta divorced Milton, she married Frank. Loretta and Frank had three
children together, Tabitha, Jennifer and Reba. Frank also had a child, Casper, from his prior
marriage. Loretta died survived by Frank, Loretta, Milton, Tabitha, Jennifer and Reba. Loretta left an
estate worth $650,000. Under the UPC, what portion of Loretta’s estate does Frank get?
2. Woodrow was married to Paige. Woodrow and Paige did not have any children together. Paige
had one child, Bessie from a previous relationship. Woodrow had five children, George, Andrew,
John, Quincy, and Franklin, from his prior marriage. All five of Woodrow’s children and his parents
predeceased him. Woodrow died intestate survived by two grandchildren, Ronald and Bryon, Bessie
and Paige. Woodrow’s probate estate was worth $950,000. Under the UPC, what portion of
Woodrow’s estate does Paige get?
3. Bennett was married to Pauline. Bennett and Pauline had six children, Clara, Bella, Steve, London,
Michael, and Cody. All six of Bennett’s children predeceased him. Bennett died intestate survived by
Pauline and his mother, Elizabeth. Bennett’s probate estate was worth $500,000. Under the UPC,
what portion of Bennett’s estate does Pauline get?
4. Sandra was married to Rosie. Sandra and Rosie adopted two children, Oliver and Grey. Sandra
had two children, Nina and Simon, from a prior relationship. Rosie had two children, Bruce and
Shelia, from her previous marriage. Sandra died intestate survived by Rosie, Oliver, Grey, Nina, and
Simon’s daughter, April. She was also survived by Rosie’s two children Bruce and Shelia. Sandra’s
probate estate was worth $435,000. Under the UPC, what portion of Sandra’s estate goes to Rosie?
66

5. In America, there are variations of two marital property systems, separate property and
community property. The primary difference between the schemes is that, in a separate property
jurisdiction, the spouses own separately all property each obtains; in a community property state, the
spouses own all property acquired from earnings after marriage in equal, undivided shares. See In re
Marriage of Brandes, 192 Cal. Rptr. 3d 1, 9 (Cal. App. 4th 2015).
The two main legal issues that impact the surviving spouse’s ability to inherit are (1) whether
or not the person is a spouse and (2) whether or not the person survived the intestate decedent.
3.2

Definition of Spouse

Traditionally, “spouse” referred to a person who is married to a member of the opposite sex.
In cases where a man who is legally married to a woman or a woman who is legally married to a man
dies intestate, it is easy to determine the person that has the right to take a spouse’s share.
Nonetheless, the definition of spouse has evolved. Consequently, legislatures and courts have
interpreted the term broadly. In this section, I examine factors that may influence a person’s ability
to be legally identified as a spouse.
3.2.1

Putative Spouse

The putative spouse doctrine was designed to protect a person who may have been tricked
into a marriage. For example, a woman may marry a man without knowing that he is already legally
married to someone else. If that woman enters the marriage in good faith and functions as a wife, is
it fair for the law to deny her the advantages of marriage? The woman is given the benefit of the
doubt because the law presumes that she would not have married the man had she known that he
already had a wife. Thus, if the woman learns of the other wife and remains in the marriage, she
loses her status as a putative spouse. The loss of that identity deprives the woman of the ability to
receive any type of spousal support, including an intestate portion of the man’s estate.

M.S.A. § 518.055 Putative Spouse (Minnesota)
Any person who has cohabited with another to whom the person is not legally married in the good
faith belief that the person was married to the other is a putative spouse until knowledge of the fact
that the person is not legally married terminates the status and prevents acquisition of further rights.
A putative spouse acquires the rights conferred upon a legal spouse, including the right to
maintenance following termination of the status, whether or not the marriage is prohibited or
declared a nullity. If there is a legal spouse or other putative spouses, rights acquired by a putative
spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses,
but the court shall apportion property, maintenance, and support rights among the claimants as
appropriate in the circumstances and in the interests of justice.

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Estate of Leslie, 689 P.2d 133 (Cal. 1984)
BIRD, Chief Justice.
Is a surviving putative spouse entitled to succeed to a share of his or her decedent’s separate
property under the Probate Code?
I.
On April 22, 1972, William Garvin and Fay Reah Leslie were married in Tijuana, Mexico. The
marriage was invalid because it was never recorded as required by Mexican law. However, Garvin
believed that he and Leslie were validly married. The couple lived together as husband and wife for
almost nine years, until Leslie’s death in 1981. Throughout this period, they resided in a house in
Mira Loma. The house had been purchased by Leslie, Mike Bosnich, her former husband, and
respondent Alton B. Smith, a son from a prior marriage who lived next door. This case concerns the
administration and distribution of Leslie’s estate.
During Leslie’s and Garvin’s marriage, restaurant property, which had been acquired by Leslie prior
to the marriage, was remodeled. As a result, it increased in value. There is conflicting testimony
concerning the source of funds and labor used for this remodeling. Garvin testified that the
improvements were paid for with “community funds” and that he and Leslie did most of the
remodeling. Smith testified that (1) the money used to remodel the restaurant came from his
mother’s separate funds, (2) he and his brother performed most of the work, and (3) Garvin’s work
on the remodeling was minimal. After the improvements were made, Leslie sold the restaurant and
received a promissory note secured by a deed of trust in her name.
During the marriage, Leslie and Garvin acquired three parcels of real property in the Desert Hot
Springs area. The manner in which title was taken varied for each parcel. The first two parcels were
purchased in 1977. Title to Parcel 1 was taken in joint tenancy by “Fay Bosnich, an unmarried
woman, and William A. Garvin, an unmarried man.” Title to Parcel 2 was taken in the name of “Fay
Bosnich, an unmarried woman.” Parcel 3 was purchased approximately 16 months later, and title to
it was taken as a tenancy in common by “Fay Bosnich, an unmarried woman, and William Garvin, a
widower.”
Garvin and Leslie also purchased furniture during their marriage. There is conflicting testimony
regarding which pieces of furniture they acquired together. Smith testified that with the exception of
two end tables purchased by his mother and Garvin, the furniture in the Mira Loma residence had
been acquired either during the 15 years that Smith and his mother lived together or during his
mother’s former marriage. Garvin testified that he and Leslie together purchased 50 percent of the
furniture in the residence.
During the marriage, a trustee bank account was established for Leslie’s granddaughter, Deborah E.
Hoskins, with Leslie named as trustee. Leslie deposited the payments she received from the sale of
her restaurant property into this account. Garvin testified that $1,000 of “community funds” were
also deposited into this account. He also testified that Leslie withdrew money from the account and
placed that money into the couple’s common funds.

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On February 6, 1981, Leslie died intestate. She was survived by Garvin, her son Smith, and three
other adult children from a prior marriage.
Smith filed a petition for letters of administration in the estate of his deceased mother. Garvin
objected to Smith’s petition, filed his own petition for letters of administration, and sought a
determination as to who was entitled to distribution of the estate.
Smith requested to be appointed special administrator to take possession of the estate and to
preserve it until an administrator could be appointed. (See Prob. Code § 460). The superior court
granted that request.
In January 1982, a court trial was held to determine the appointment of the administrator and the
distribution of the property in the estate. The trial court found that a putative marriage had existed
between Garvin and Leslie, denied Garvin’s petition for letters of administration, and determined
that he was not entitled to any of decedent’s separate property. The court also found that some of
the property was quasi-marital and some was separate.
Specifically, the trial court found that three bank accounts, the two end tables, and approximately
$2,400 in cash were quasi-marital property. The remaining property was found to be Leslie’s separate
property, consisting of: (1) Parcel 2, which was in decedent’s name alone, (2) an undivided one-half
interest in Parcel 3, which was in decedent’s and Garvin’s names and held as a tenancy in common,
(3) the remaining furniture in the Mira Loma residence, (4) a two-thirds interest in the Mira Loma
residence, (5) the trustee bank account, and (6) the promissory note from the sale of the restaurant
property. Finally, the trial court found that the funds used to improve the restaurant had come from
decedent’s separate property and the improvements had been made by decedent’s sons.
Garvin makes several contentions on appeal. First, he argues that he is entitled to an intestate share
of the decedent’s separate property. Second, he contends that he should have been appointed
administrator of the estate. Lastly, he challenges several of the trial court’s separate property
findings.
II.
The principal issue presented by this case is whether a putative spouse is entitled to succeed to a
share of his or her decedent’s separate property. Although this court has not directly confronted this
question, the conclusions of other courts on this and analogous questions are instructive.
Some guidance can be gleaned from decisions which have held that a putative spouse is entitled to
succeed to quasi-marital property. (See ante, fn. 5.) One such decision is Feig v. Bank of America etc.
Assn. (1936) 5 Cal.2d 266, 54 P.2d 3. The Feigs were married in 1889. A year later, Mrs. Feig
obtained a divorce without Mr. Feig’s knowledge. The couple continued living together as husband
and wife. In 1921, Mrs. Feig suggested that she and Mr. Feig remarry. It was only then that Mr. Feig
discovered that he and Mrs. Feig were divorced. They remarried that year. In 1929, Mrs. Feig died
intestate. (Id., 2 Cal. 2d at 270, 54 P.2d 3).
At issue in Feig was the property acquired after the 1890 divorce and before the 1921 remarriage.
The trial court awarded all the property to Mr. Feig. This court, affirming the judgment, noted that
the property acquired by the Feigs during the period they were divorced, “although not community
69

by reason of the fact that there was in truth no marriage, should be marked by all the incidents of
community property.” (5 Cal.2d at p. 273, 54 P.2d 3). Thus, Mr. Feig was entitled to all of the
“community” property (Id., 5 Cal.2d at pp. 273-274, 54 P.2d 3).
Although the surviving husband in Feig was the legal spouse at the time of his wife’s death, he was
also the putative spouse for the period during which the couple were divorced. Thus, Feig essentially
holds that a surviving putative spouse is entitled to all the property acquired during the putative
marriage.
This holding was made explicit several years later in Estate of Krone (1948) 83 Cal. App. 2d 766, 189
P.2d 741. There, the decedent was survived by his putative wife and three children from a previous
marriage. The trial court determined that the putative wife was entitled to only one-half of the
“community” estate (Id., 83 Cal. App 2d at pp. 766-767, 189 P.2d 741). The Court of Appeal
modified the judgment to award all of the “community” estate to the putative wife. (Id., 83 Cal. App.
2d at p. 770, 189 P.2d 741). The court held that when a putative spouse dies, the surviving spouse
takes “the same share to which she would have been entitled as a legal spouse.” (Id., 83 Cal. App. 2d
at p. 769, 189 P.2d 741).
The Krone court reasoned that “the logic appears irrefutable that if according to statute [§ 201] the
survivor of a valid, ceremonial marriage shall be entitled to take all of the community estate upon its
dissolution, then by parity of reasoning why should not the [putative] wife inherit the entire estate of
a putative union upon the death of her husband intestate? Clearly, she does inherit all.” (83 Cal. App.
2d at pp. 769-770, 189 P.2d 741; accord Union Bank & Trust Co. v. Gordon (1953) 116 Cal. App. 2d
681-690, 254 P.2d 644; Mazzenga v. Rosso (1948) 87 Cal. App. 2d 790, 793-794, 197 P.2d 770). It
would be contrary to established law to deny a putative spouse “her rights as a surviving spouse to
inherit the total of the gains of the putative marriage.” (83 Cal. App.2d at p. 770, 189 P.2d 741).
Krone has been read “to recognize a putative [spouse] as a legal spouse for the purpose of
succession.” (Kunakoff v. Woods (1958) 166 Cal. App. 2d 59, 65-66, 332 P.2d 773). That reading is
clearly applicable to the determination of the separate property rights of a putative spouse.
A number of Court of Appeal decisions support the conclusion that a putative spouse is entitled to
succeed to a share of the decedent’s separate property. Estate of Goldberg (1962) 203 Cal.App.2d 402,
21 Cal.App.2d 402, 21 Cal. Rptr. 626, is one such case. Sam Goldberg died intestate, survived by
Edith, his putative spouse, and three children from a prior marriage. The trial court found that Edith
was both Sam’s actual and putative spouse. She was awarded all of the community property as well
as one-third of Sam’s separate property. The other two-thirds of the separate property was awarded
to Sam’s children. (Id., 203 Cal.App.2e at p. 404, 21 Cal. Rptr. 626; see § 221, ante, fn. 6.) The children
appealed.
The Court of Appeal agreed with the trial court’s finding that there was insufficient evidence that
Edith was Sam’s actual wife, but sufficient evidence that she was Sam’s putative wife. (203
Cal.App.2d at pp. 411-412, 21 Cal. Rptr. 626). As a putative spouse, Edith was entitled “to the same
share of the ‘community’ property as she would receive as an actual wife.” (Id., 203 Cal. App.2d at p.
412, 21 Cal. Rptr. 626).
Although the Goldberg court was silent on the question of Edith’s right as a putative spouse to
succeed to Sam’s separate property, the court did affirm the trial court’s award of one-third of that
70

property to Edith. By such action, the Court of Appeal implicitly recognized the right of a surviving
putative spouse to an intestate share of the decedent’s separate property.
Similarly in Garrado v. Collins (1955) 136 Cal. App.2d 323, 288 P.2d 620, the trial court awarded the
putative husband one-third of the decedent’s separate property. The decedent’s two children from a
previous marriage appealed, arguing that the putative husband was not entitled to any of the separate
property. (Id., 136 Cal. App. 21 at pp. 324-325, 288 P.2d 620).
The Court of Appeal did not reach the merits of the trial court’s award. Instead, it held that the
children 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
property at issue because that property would descend either to the legal husband, who was still
living, or to the surviving putative husband. (Ibid.) That observation is significant, since the court
recognized the possibility that the putative husband may have been awarded the “surviving
spouse’s” share of the separate property even as against the legal husband.
Finally, there is Estate of Shank (1957) 154 Cal.App.2d 808, 316 P.2d 710. Claire Shank married her
legal husband in 1944, then obtained a Mexican divorce, and subsequently married her putative
husband. In 1953, she died intestate, leaving an estate consisting entirely of separate property. She
was survived by a putative husband, a legal husband, and three adult siblings. (Id., 154 Cal. App. 2d
at pp. 809-810, 316 P.2d 710).
The trial court found that the Mexican divorce was invalid and awarded all the separate property to
the siblings. The court also found that the legal husband had acquiesced in and relied upon the
Mexican divorce and had conducted himself as if that decree were valid. He was, therefore, estopped
from asserting that he was the surviving spouse for the purpose of inheriting the decedent’s separate
property. In addition, the trial court found that the decedent’s marriage to her putative husband was
invalid because she was still married to her legal husband at the time of the second “marriage.” (154
Cal.App.2d at pp. 810-811, 316 P.2d 710) Both the legal and putative husbands appealed. (Id., 154
Cal.App.2d at p. 811, 316 P.2d 710).
The Court of Appeal affirmed the award as to the legal husband, concluding that as against the
putative husband, the former was estopped from contending that the divorce was invalid. (154 Cal.
App. 2d at pp. 811-812, 316 P.2d 710). However, the court concluded that the putative husband was
entitled to one-half of the separate property. Since the decedent was estopped from denying the
validity of the Mexican divorce during her life as against the putative husband, her heirs, in privity
with her, were also estopped. The court noted that a second marriage is presumed to be valid. (Id.,
154 Cal.App.2d at pp. 812, 316 P.2d 710). Although the result in Shank rests on estoppel principles,
it provides yet another example of a putative spouse who was permitted to succeed to a share of the
decedent’s separate property.
In many analogous contexts, California courts, as well as federal courts applying California law, have
accorded surviving putative spouses the same rights as surviving legal spouses. Examples abound.
In Kunakoff v. Woods, supra, 166 Cal.App.2d at p.59, 67-68, 332 P.2d 773, a surviving putative spouse
was held to be an heir for the purposes of Code of Civil Procedure section 377. As such, she was
entitled to bring an action for the wrongful death of her deceased partner. The Court of Appeal
noted that the term “spouse” may include a putative spouse. (Kunakoff v. Woods, supra, 166
71

Cal.App.2d at p. 63, 332 P.2d 773). The court reasoned that since a putative spouse is an heir for
purposes of succession, she is an heir for purposes of maintaining an action for wrongful death. (Id.,
166 Cal.App.2d at pp. 67-68, 332 P.2d 773).
A surviving putative spouse has also been held to be a surviving spouse within the meaning of
Government Code section 21364. (Adduddell v. Board of Administration, supra, 8 Cal. App.3d 243, 87
Cal. Rptr. 268). That statute entitles a surviving spouse to special death benefits under the Public
Employees’ Retirement Law. In Adduddell, the court indicated that it would be “illogical and
inconsistent” for the Legislature to intend that a putative spouse is a surviving spouse under section
201, but not a surviving spouse under Government Code section 21364. (8 Cal.App.3d at pp. 249250, 87 Cal. Rptr. 268).
A surviving putative spouse has also been held to be a “surviving widow” within the meaning of a
former version of Labor Code section 4702 (Stats.1969, ch. 65, § 1, p. 187), and thus entitled to
recovery of workers’ compensation death benefits. (Brennfleck v. Workmen’s Comp. App. Bd., supra, 3
Cal. App.3d 666, 84 Cal.Rptr. 50; see also Neureither v. Workmen’s Comp. App. Bd. (1971) 15 Cal.App.
3d 429, 433, 93 Cal. Rptr. 162).
Finally, it is noteworthy that putative spouses have been awarded spousal benefits under the civil
service retirement statute (5 U.S.C. § 8341, Brown v. Devine (N.D. Cal. 1983) 574 F. Supp. 790, 792),
(under the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. § 901 et.seq., Powell
v. Rogers (9th Cir. 1974) 496 F.2d 1248, 1250, cert. den., 419 U.S. 1032, 95 S.Ct. 514, 42 L.Ed. 2d 307;
Holland American Insurance Company v. Rogers (N.D. Cal. 1970) 313 F. Supp. 314, 317-318, and under
the Social Security Act (42 U.S.C. § 416, Aubrey v. Folsom (N.D. Cal. 1957) 151 F.Supp. 836, 840;
Speedling v. Hobby (N.D. Cal. 1955) 132 F.Supp. 833, 836).
The foregoing authority compels but one conclusion: a surviving putative spouse is entitled to
succeed to a share of his or her decedent’s separate property. This result is inherently fair. By
definition, a putative marriage is a union in which at least one partner believes in good faith that a
valid marriage exists. As in this case, the couple conducts themselves as husband and wife
throughout the period of their union. Why should the right to separate property accorded to legal
spouses be denied to putative spouses?
Further, to deny a putative spouse the status of surviving spouse for the purposes of succeeding to a
share of the decedent’s separate property would lead to anomalous and unjust results. For example,
where the decedent is survived by a putative spouse and children of the putative marriage, such a
rule would deny the spouse succession rights to separate property even though the children are
accorded such rights. Such a rule would also deny succession rights to a putative spouse who lived
with the decedent for many years, while according these rights to the legal spouse, even if that
spouse’s partner died the day the couple were married. (Laughran & Laughran, Property and Inheritance
Rights of Putative Spouses in California: Selected Problems and Suggested Solutions (1977) 11 Loyola L.A.L.Rev.
45, 68.) Surely, the Legislature never intended such results.
There is one Court of Appeal decision which has reached a conclusion contrary to that reached by
this court today. That decision must therefore be addressed. In Estate of Levie (1975) 50 Cal. App.3d
572, 123 Cal. Rptr. 445, the trial court awarded the putative spouse all of the quasi-marital property
as well as an intestate share of the decedent’s separate property. (Id., 50 Cal. App.3d at p. 574, 123
Cal. Rptr. 445). One of the decedent’s children from a prior marriage appealed. The Court of Appeal
72

reversed the separate property determination, rejecting the argument that a putative spouse is
entitled to a surviving spouse’s share of the decedent’s separate property. (Id., 50 Cal.App.3d at pp.
576-577, 123 Cal. Rptr. 445).
The Levie court articulated three reasons in support of its holding. First, it noted that there appeared
to be no California decision suggesting that a putative spouse is entitled to succeed to an interest in
the decedent’s separate property. Second, it declared that the equities connected with quasi-marital
property do not apply to a decedent’s separate property because the joint efforts of the putative
spouses did not contribute to the acquisition of that property. Lastly, the court observed that to give
the putative spouse an interest in a decedent’s separate property would “unjustifiably disregard the
statutory scheme governing intestate succession of separate property.” (50 Cal. App. 3d at 576-577,
123 Cal. Rptr. 445).
Levie has been severely criticized by the commentators and for good reasons. (See, e.g., Laughran &
Laughran, op. cit. supra, 11 Loyola L.A.L.Rev. at pp. 64, 66–68, 78, 85; Bruch, The Definition and
Division of Marital Property in California: Towards Parity and Simplicity (1982) 33 Hastings L.J. 771, 825, fn.
224; Reppy, Debt Collection from Married Californians: Problems Caused by Transmutations, Single-Spouse
Management, and Invalid Marriage (1981) 18 San Diego L. Rev. 143, 218, fn. 283.) Not only are the Levie
court’s reasons unpersuasive, but its conclusion leads to anomalous, absurd and unjust results.
Levie’s first reason is plainly in error. Numerous California decisions have suggested that a putative
spouse is entitled to succeed to a share of a decedent’s separate property. (See ante, at pp. 566–567 of
207 Cal.Rptr., pp. 138–139 of 689 P.2d.) For example, the result in Estate of Krone, supra, 83 Cal. App.
766, 189 P.2d 741 (ante, at pp. 565–566 of 207 Cal.Rptr., pp. 137–138 of 689 P.2d) suggests that a
putative spouse should also be considered a surviving spouse for purposes of other sections in the
same division of the Probate Code. Moreover, a surviving putative spouse has been accorded the
same rights as a surviving legal spouse in many analogous contexts. (See ante, at pp. 567–568, of 207
Cal.Rptr., pp. 139–140 of 689 P.2d.) Clearly, Levie’s first reason is without basis in fact.
Equally unpersuasive are the other two reasons given in Levie. Two commentators have aptly
addressed these reasons in their article concerning the rights of putative spouses. (See Laughran &
Laughran, op. cit. supra, 11 Loyola L.A.L.Rev. at pp. 66–68.) As the Laughrans observe, “[w]hile it is
true that the joint efforts of putative spouses do not contribute to the acquisition of separate
property, it is equally true that the efforts of a legally married person do not contribute to the
acquisition of separate property of the other spouse. It therefore begs the question to state that the
‘equities’ of a putative spouse differ depending upon whether rights of succession to quasi-marital or
separate property are at issue, since the same distinction applies to the ‘equities’ of a legally married
person with respect to rights of succession to community and separate property. Thus, as to rights
of intestate succession to separate property of the decedent, the ‘equitable’ position of a surviving
legal spouse and a surviving putative spouse is the same.” (Id., at p. 67.)
Further, language within the Levie opinion contradicts its ultimate conclusion. Levie stated that a
putative spouse’s right to succeed to quasi-marital property is derived from “ ‘[e]quitable
considerations arising from the reasonable expectation of the continuation of benefits attending the
status of marriage entered into in good faith ....’ [Citations.]” (50 Cal. App.3d at p. 576, 123 Cal.
Rptr. 445). As the Laughrans convincingly assert, “[t]hat very language dictates a decision in favor of
the surviving putative spouse in cases involving succession to separate property, since the rights of a
‘surviving spouse’ [to succeed to separate property under the Probate Code] are ‘benefits attending
73

the status of marriage.’ ” (Laughran & Laughran, op. cit. supra, 11 Loyola L.A.L.Rev. at p. 67, italics
added.)
To accord a surviving putative spouse rights to the decedent’s separate property honors rather than
disregards the statutory scheme governing intestate succession. (Laughran & Laughran, op. cit. supra,
11 Loyola L.A.L.Rev. at p. 67; but see Levie, supra, 50 Cal.App.3d at p. 577, 123 Cal.Rptr. 445). Since
the right to succession is not an inherent or natural right, but purely a creature of statute (Estate of
Simmons (1996) 64 Cal. 2d 217, 221, 49 (Estate of Simmons (1966) 64 Cal. 2d 217, 221, 49 Cal. Rptr.
369, 411 P.2d 97), a surviving legal spouse inherits a decedent’s separate property “only because the
statutes provide that a person having the status of ‘surviving spouse’ takes a certain share.”
(Laughran & Laughran, op. cit. supra, 11 Loyola L.A.L. Rev. at p. 67.) To accord a surviving putative
spouse the status of “surviving spouse” simply recognizes that a good faith belief in the marriage
should put the putative spouse in the same position as a survivor of a legal marriage. (Id., at p. 68.)
Thus, contrary to Levie, to permit a surviving putative spouse to succeed to a share of the decedent’s
separate property in no way upsets the statutory scheme of intestate succession.
Levie is “wrong in its analysis of the ‘equities,’ wrong as a matter of statutory construction, and ...
ignores compelling analogous precedents.” (Laughran & Laughran, op. cit. supra, 11 Loyola
L.A.L.Rev. at p. 78.) Therefore, to the extent that it is inconsistent with this opinion, Levie is
disapproved.
Here, the trial court determined that Garvin was not decedent’s “surviving spouse” under section
221. As a result, the court determined that he had no legal interest in any of her separate property.
That determination was in error.
III.
Garvin next argues that under section 422 he should have been appointed the administrator of
decedent’s estate. This argument has merit.
Section 422 lists in order of priority the persons who are entitled to letters of administration. That
section provides: “(a) Administration of the estate of a person dying intestate must be granted to one
or more of the following persons, who are entitled to letters in the following order: (1) The surviving
spouse, or some competent person whom he or she may request to have appointed. (2) The
children.... (b) A relative of the decedent who is entitled to priority under subdivision (a) is entitled
to priority only if either of the following facts exist: (1) The relative is entitled to succeed to all or
part of the estate....” (Italics added.)
The meaning of the statute is clear. “The surviving spouse, when entitled to succeed to the estate or
some portion thereof, is given first preference. This right is absolute and the court has no right to
refuse to appoint the survivor or to appoint another in a lower class.” (Estate of Hirschberg (1964) 224
Cal.App.2d 449, 461, 36 Cal. Rptr. 661; see also Estate of Johnson (1920) 182 Cal. 642, 643, 189 P.
280; Estate of Cummings (1972) 23 Cal.App.3d 617, 622, 100 Cal. Rptr. 809; Estate of Locke (1968) 258
Cal. App.2d 617, 622, 65 Cal.Rptr. 884).
In addition, the reasoning in section II (ante, at pp. 564–570 of 207 Cal.Rptr., pp. 136–142 of 689
P.2d) compels the conclusion that a putative spouse is a surviving spouse within the meaning of
section 422. Without reiterating those reasons here, suffice it to say that in the absence of clear
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legislative direction to the contrary, neither logic nor justice supports the conclusion that a putative
spouse may inherit an intestate share of the decedent’s separate property but may not administer the
estate.
Here, the trial court denied Garvin’s petition for letters of administration. As a putative husband,
Garvin is a surviving spouse under section 422. Therefore, he is entitled to letters of administration
and has preference over anyone else. The trial court’s ruling was in error.
IV.
Next, Garvin contends that the trial court erred in finding that certain of the Desert Hot Springs
property, the Mira Loma furniture, and the trustee bank account were decedent’s separate property.
He also contends that the trial court erred in failing to find a community interest in the
improvements made to decedent’s restaurant property. His argument is essentially that the trial
court’s determinations are unsupported by substantial evidence.
In reviewing the sufficiency of the evidence, this court is guided by well-settled principles. “[T]he
power of the appellate court begins and ends with a determination as to whether there is any
substantial evidence, contradicted or uncontradicted,” to support the trial court’s findings. (Crawford
v. Southern Pacific Co. (1935) 3 Cal. 2d 427, 429, 45 P.2d 183; Jessup Farms v. Baldwin (1983) 33 Cal. 3d
639, 660, 190 Cal. Rptr. 355, 660 P.2d 813). “We must therefore view the evidence in the light
most favorable to the prevailing party, giving [him] the benefit of every reasonable inference and
resolving all conflicts in [his] favor ....” (Ibid.) “ ‘The finding of a trial court that property is either
separate or community in character is binding and conclusive on the appellate court if it is supported
by sufficient evidence, or if it is based on conflicting evidence or upon evidence that is subject to
different inferences ....’ ” (Beam v. Bank of America (1971) 6 Cal.3d 12, 25, 98 Cal. Rptr. 137, 490 P.2d
257). With these familiar principles in mind, this court examines each of the challenged findings.
Three parcels of real property were purchased during the putative marriage. Although two parcels
were purchased at the same time, title to each was taken in a different manner. Title to Parcel 1 was
taken in Leslie’s and Garvin’s names as joint tenants, while title to Parcel 2 was taken in Leslie’s
name alone. Sixteen months later, Garvin and Leslie purchased Parcel 3. Title to it was taken in both
their names as tenants in common.
Garvin contests the trial court’s findings that Parcel 2 and Leslie’s one-half interest in Parcel 3 were
her separate property. However, the record amply supports those findings.
The fact that title to each of the three parcels was taken in a different manner, particularly where all
were purchased within a 16-month period, supports the inference that the parties deliberately
intended to differentiate the ownership interests in each. Garvin’s own testimony supports this
inference. As he testified, a married couple “could put land or buy land in one name or another,
whatever they wanted to. I mean, that was up to their own particular rights. Each of us knew how
[title] got there and why. Of course, we never anticipated all these other problems at this point in
time.” Garvin was obviously sophisticated enough to understand the reasons for taking title to the
properties in different ways. Thus, the trial court’s findings that Parcel 2 and one-half of Parcel 3
were decedent’s separate property were amply justified.
Garvin’s contention that the trial court erred in finding that the bulk of Leslie’s furniture was her
75

separate property is also without merit.
Smith testified that with the exception of two end tables, all of the furniture in his mother’s
residence had been acquired prior to her marriage with Garvin. Although Garvin contradicted this
testimony, the trial court resolved the conflict in Smith’s favor. This court is bound by the trial
court’s finding, since it is based on substantial evidence. (Jessup Farms v. Baldwin, supra, 33 Cal.3d at p.
660, 190 Cal.Rptr. 355, 660 P.2d 813).
Alternatively, Garvin relies on the proposition that he should be awarded all the furniture as exempt
property. (§ 660). Since Garvin failed to make this argument below, he is precluded from raising it
for the first time on appeal. Estate of Westerman (1968) 68 Cal.2d 267, 66 Cal. Rptr. 29, 437 P.2d 517).
In any event, it is well established that a trial court has discretion to deny a surviving spouse’s
request to set exempt property apart once an inventory has been filed. (§ 660; Estate of Hawkins
(1956) 141 Cal.App. 2d 391, 397-398, 296 P.2d 873). There is no evidence that the trial court abused
its discretion.
Accordingly, the trial court’s finding as to the furniture is affirmed.
Garvin also contends that the trial court erred in finding that the trustee bank account consisted
entirely of Leslie’s separate property. Once again, Garvin’s contention lacks merit.
Garvin offered the only evidence regarding the trustee account. He testified that when the account
was originally established, $1,000 of “community funds” were placed in it. He also testified that
payments from the sale of Leslie’s restaurant property were deposited into the account and that
Leslie withdrew money and placed it into the couple’s common funds. Moreover, Leslie was the sole
trustee named on the account for her granddaughter. At the time of Leslie’s death, there were $1,719
in the account.
In ruling on this matter, the trial court found that Garvin had no interest in the account. The trial
court specifically indicated that it had taken the witnesses’ credibility into consideration. Since that
court was in a better position to weigh Garvin’s credibility against evidence that the account
appeared to be Leslie’s separate property, this court discerns no error in the trial court’s ruling.
Lastly, Garvin asserts that funds and labor from the “community” were used to improve decedent’s
restaurant property and that the “community” is therefore entitled to a pro rata share of the
increased value of that property. This assertion, too, fails.
It is undisputed that decedent acquired the restaurant prior to her marriage with Garvin. It is also
uncontested that improvements were made to the restaurant that increased its value.
However, the testimony was in conflict regarding the source of funds and labor used for the
improvements. Garvin testified that community funds were used and that he and Leslie did most of
the work themselves. Smith testified that his mother’s separate funds were used, that he and his
brother did most of the work, and that any labor by Garvin was minimal.
The trial court resolved the conflict in Smith’s favor. The finding that the restaurant property was
decedent’s separate property is thus binding on this court for it is supported by substantial evidence.
(Jessup Farms v. Baldwin supra, 33 Cal.3d at p. 660, 190 Cal. Rptr. 355, 660 P.2d 813).
76

V.
Virtually every court which has considered the issue has accorded a surviving putative spouse the
same rights as a surviving legal spouse. The one court which has decided against such benefits did so
in a poorly reasoned and unsound decision. Moreover, as in most putative spouse cases, the couple
involved here lived together for a substantial period of time, conducting themselves as husband and
wife throughout their union. To deny one of their members an intestate share of the decedent’s
separate property while permitting him to succeed to the quasi-marital property defies logic and
leads to unjust results. Therefore, this court holds that a surviving putative spouse is entitled to
succeed to a share of the decedent’s separate property. Similar reasoning supports the conclusion
that a surviving putative spouse is entitled to first preference for letters of administration.
Accordingly, the portion of the trial court’s judgment denying Garvin an interest in decedent’s
separate property and letters of administration in decedent’s estate is reversed. In all other respects,
the judgment is affirmed.
Notes, Problems, and Questions
1. If Garvin is recognized as a legal spouse and the jurisdiction has adopted the UPC, what portion
of Leslie’s estate would Gavin take?
2. What were the reasons the court gave for giving Garvin, the putative spouse in this case, the
status of surviving spouse?
3. What three reasons did the Levie court give for denying the putative surviving spouse status?
4. How did the Leslie court justify not following the holding of the Levie case?
5. The surviving spouse receives a share of an intestate decedent’s estate because the law presumes
that a decedent wants to provide for the spouse that he or she leaves behind. Should that
presumption be rebuttal? What if one spouse finds that the other spouse is cheating and dies
intestate before he or she can obtain a divorce? Would the decedent really want his or her cheating
spouse to inherit his or her separate property?
6. Consider the following example. Griffin had no intention of marrying Cindy, but he wanted to
have intimate relations with her. Cindy had taken a purity pledge to avoid sex before marriage, so
she refused Griffin’s advances. Griffin often told his friends that he would not get married unless
the woman signed a prenuptial agreement. Griffin got Stanley, one of his friends, to pretend to be a
licensed minister. Stanley performed the ceremony and declared that Griffin and Cindy were legally
married. Two days later, Griffin died intestate in a car accident. He was survived by his parents, Joe
and Betty; his brothers, Henry and Paul; and Cindy. Griffin left an estate of $930,000. Is Cindy a
putative spouse? Should she be entitled to an elective share of Griffin’s estate after just two days of
marriage? If she is entitled to take, how much would Cindy get in a UPC jurisdiction?

77

The scenario of a person remarrying without divorcing the first spouse is common especially
in small southern towns. Problems starts when the person dies and two grieving spouses show up at
the funeral.

Estate of Hafner, 184 Cal. App. 3d 1371 (Cal. App. Ct. 1986)
DANIELSON, J.
The principle issue presented by this case is: as between the surviving, innocent, wife and children of
a bigamous husband, and his surviving, innocent, putative spouse and their child, who is entitled to
succeed to the husband’s intestate estate when that estate is, as to his surviving wife and children,
the husband’s separate property and is, as to the putative spouse, quasi-marital property?
We hold that, as separate property, one-half of the estate goes to the surviving wife and four
children of the decedent for distribution pursuant to former section 221 of the Probate Code
(hereafter section 221) and the other one-half goes to the surviving putative spouse as quasi-marital
property pursuant to Civil Code section 4452 and former section 201 of the Probate Code (hereafter
section 201).
Factual Background and Proceedings Below
Joan Hafner (Joan) and the decedent Charles J. Hafner (Charles) were married on June 12, 1954, in
the State of New York; it was the first marriage for each of them. Following their marriage they took
up residence in College Point, New York. Joan has continued to live in or near College Point ever
since. The marriage between Joan and Charles produced three daughters, all of whom are now
living: Catherine Kotsay, born December 25, 1955; Lillian Mayorga, born November 18, 1956; and
Dorothy Hafner, born November 16, 1957.
In February or March of 1956 Joan learned that she was pregnant with her second child and told
Charles. In April or May of 1956 Charles left Joan, without prior notice and without letting her
know where he would be. At that time their first child, Catherine, was sick and Joan moved back to
her parents, who supported her; she received no support from Charles.
Joan and Charles were reunited briefly in early 1957. Charles left Joan for the last time in February
1957. Joan, then pregnant with their third child, encountered Charles on the street in New York in
May 1957. He told her, “I hear you are going to have another baby,” and asked her whether she
would like to go to California. Joan replied, “What guarantees would I have that you won’t leave me
pregnant again?” Charles replied, “There’s no guarantees.”
In 1956 and 1958, Joan filed support proceedings against Charles in the New York family court. In
1956, she obtained a $12 per week child support order and in 1958 she obtained a similar order for
$20 per week. Charles made four support payments in 1958 but never made any other payments. In
1958, Joan consulted an attorney in New York on the support matters, but, because of the expense
required to locate Charles in California, she did not pursue the matter. In 1961, Joan abandoned any
further efforts to obtain support warrants in the New York family court because such efforts caused
her to lose time on her job.
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Joan last saw Charles in the New York family court in 1958 when he was brought before the court
on a support warrant. Shortly after that appearance, an acquaintance told Joan that Charles had gone
to California. From 1958 until his death in 1982, Joan and Charles never saw or communicated with
each other again. Joan knew that Charles was in California but did not know where in California.
Beginning in 1961, and continuously thereafter, Joan considered her marriage to Charles for all
practicable purposes to have ended and that they would never reconcile or even see each other
again.
Except for short intervals to have their babies, Joan was employed at all times following her
marriage to Charles, and was so employed at the time of the trial below. She reared the three
daughters of herself and decedent.
In August, 1953, shortly after graduating from high school, Joan commenced working at a magazine
company and continued until August, 1955, when she left because she was pregnant with her first
daughter. In April, 1957, she went to work on the assembly line of a rubber company, on a machine
putting snaps on baby pants. Except for a three-month lay-off to have her third baby she stayed on
that machine for about twelve years, when the company moved away. She started at the minimum
wage and later became a piece worker. After two weeks of unemployment she went to work for a
glove manufacturing company, starting as an order picker, filling orders, and later as a stock
supervisor, making sure that the orders were picked and sent out. She was still so employed at the
time of the trial of the within action and had then been working at the glove factory for 14 1/2
years.
Joan never sought a divorce from Charles; it is unclear whether she did not seek a divorce because
of religious convictions, the lack of financial resources, or a lack of interest. At no time from their
marriage in 1954 until his death on December 25, 1982, did Charles ever file proceedings to dissolve
his marriage to Joan. Their marriage was still in full force and effect at the time of Charles’ death.
Respondent Helen L. Hafner (Helen) met Charles in 1962 when he was a patron at a beer bar where
she was working as a barmaid. Helen had separated from her second husband, Eldon Pomeroy, in
November, 1961.
Charles told Helen that he had divorced his wife, Joan, in New York on charges of adultery, that he
had three children of that marriage with Joan, and that he had given up an interest in a house in lieu
of child support. Charles further stated that the divorce records had been destroyed in a fire in New
York. Helen, in good faith, relied on these representations and believed them to be true
continuously thereafter; she had no actual knowledge or reasonable grounds to believe otherwise.
In July 1962, Helen and Charles went to Tijuana, Mexico, to enable Helen to obtain a divorce from
Pomeroy and to participate in a marriage ceremony with Charles. Both of those objectives were
accomplished. Helen, in good faith, believed that both the divorce and marriage were valid.
Following their return from Tijuana in 1962, Helen and Charles lived as husband and wife.
Helen’s second husband, Pomeroy, was killed in an accident on June 21, 1963. In June 1963, Helen
consulted an attorney and was advised that her Mexican divorce from Pomeroy was invalid in
California. Following Pomeroy’s death Helen and Charles went to Las Vegas, Nevada, and
participated in a marriage ceremony. After that marriage ceremony, on October 14, 1963, Helen and
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Charles returned to the Los Angeles area where they lived and held themselves out as husband and
wife until Charles’ death. They had one child, Kimberly Hafner, born December 10, 1964.
On September 27, 1973, Charles was seriously injured in an automobile accident which left him with
permanent physical disabilities and brain damage that rendered him incapable of employment.
During the nine months in the hospital and his subsequent recovery period, Helen faithfully
attended to his needs as his wife and continued to do so for some nine years until his death.
Charles and Helen accumulated approximately $69,000 in hospital and doctor bills as a result of the
accident. Those bills were not paid until Charles’s personal injury action was settled for $900,000, in
1975, which netted decedent $600,000 after attorney’s fees. Helen and her attorney, Charles Weldon,
were appointed as Charles’s co-conservators in 1975. The personal injury settlement was placed in
conservatorship accounts and administered under court supervision. The conservatorship assets
were subsequently transferred to Charles’ probate administrator following Charles’s death.
Charles Hafner died intestate on December 25, 1982, leaving an estate appraised at $416,472.40; his
entire probate estate consists of the remainder of the proceeds of his personal injury settlement.
Joan apparently learned of Charles’s personal injury in 1974; she was not able financially to visit him
following his accident. Joan learned of Charles’s death a few days after Christmas, 1982; she did not
attend his funeral and did not know where it was.
Petitions for letters of administration were filed by Helen and by Joan on January 21 and February
14, 1983, respectively. By stipulation the competing petitions were taken off calendar and a bank was
appointed administrator. The bank administrator is not a party to this appeal.
Helen filed a petition for determination of entitlement to estate (former § 1080), claiming to be the
surviving wife of Charles and seeking to have the probate court determine the persons entitled to
share in the distribution of Charles’s estate.
Appellants (Joan and the three daughters) filed a response to the petition and a statement of interest,
asserting their respective claims to a share of Charles’ estate, as his surviving spouse and children,
pursuant to section 221. Kimberly Hafner, a child of Charles, also filed a statement of interest in the
state.
Appellants claimed that they, together with Kimberly, should succeed to Charles’ entire estate under
section 221, and that even if Helen were found to be a good faith putative spouse the court should,
under equitable principles, divide the estate among them.
Pursuant to stipulations without prejudice by Joan and Helen, acting through their attorneys and
filed in the cause, Helen was awarded a family allowance of $1,800 per month from and after the
date of Charles’s death. Later, and commencing November 1, 1983, a family allowance of $1,800 per
month was ordered payable to Helen and a family allowance of $400 per month was ordered payable
to Joan, both until trial of the petition for determination of heirship. Such stipulations were
expressly without prejudice to either Joan or Helen in their respective positions in the controversy
and with the provision that all such allowances should be charged in full against such person’s
distributive share of the estate, and would not otherwise be reimbursed.
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Helen’s petition came on for a nonjury trial on January 12, 1984. Following the conclusion of the
trial, the court rendered its statement of decision, on February 1, 1984, in which it concluded that
Helen had a legal right to succeed to Charles’s entire estate as his surviving spouse under Probate
Code section 201. The court also concluded that Helen was Charles’ good faith putative spouse and
that it would be inequitable to deny her Charles’ entire estate.
On February 27, 1984, the court made and entered its judgment determining entitlement to estate
distribution and order for family allowance, in accordance with its statement of decision. Appellants
and Kimberly Hafner filed timely notices of appeal from that judgment.
Contentions
Appellants contend that (1) the trial court erred in awarding the entire estate to the putative spouse,
Helen, in the absence of an estoppel against the wife, Joan, and Charles’ children; (2) the trial court
improperly applied equities so as to disinherit the wife and children of the decedent in favor of his
putative spouse; and (3) the trial court’s decision as to the family allowance was erroneous as a
matter of law, and was not supported by the evidence.
Discussion
The Findings
The trial court’s statement of decision set forth certain findings upon which its decision and the
judgment were based. Among these findings are:
1. Joan and Charles were legally married on June 12, 1954; neither Joan nor Charles ever obtained
divorce, annulment, or other dissolution of their marriage; Joan never knew of Charles’ marriage to
Helen until his death; and three daughters were born of their marriage.
2. Helen and Charles participated in a marriage ceremony in Tijuana, Mexico, in 1962, and another
marriage ceremony in Las Vegas, Nevada, on October 14, 1963; at all times to and including Charles’
death Helen believed in good faith that her marriage with Charles was valid and that Charles had
previously obtained a valid divorce from his wife; at all times on and after October 14, 1963, Helen
was a good faith putative spouse of Charles; the marriage of Helen and Charles was invalid [void] in
that the prior marriage of Joan and Charles was an existing marriage; Charles and Helen had one
child.
3. The entire estate of Charles consists of the remainder of the proceeds of Charles’ personal injury
settlement.
4. Joan is not estopped by any act or omission on her part to assert the invalidity of the [void]
marriage of Charles and Helen. (Italics in statement of decision.)
5. Joan, by reason of privity with Charles, would be estopped to challenge the validity of Charles’s
marriage to Helen because of Charles’s misrepresentation to Helen regarding his divorce from Joan.
The three daughters of Joan and Charles, Catherine, Lillian, and Dorothy would be estopped for the
same reason.
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The Status of the Parties
Joan Hafner was, at all times from June 12, 1954, until the death of Charles, the wife (spouse) of the
decedent, Charles Hafner. The trial court properly found that Joan and Charles were married, each
for the first time, on June 12, 1954, and that neither had ever taken any steps to dissolve their
marriage.
Charles Hafner was, at all times from June 12, 1954, until his death, the husband (spouse) of Joan
Hafner. We note that Charles was not the putative spouse of Helen. That status belongs only to the
party or parties to a void marriage who the trial court finds to have believed in good faith in the
validity of the void marriage. (Civ. Code § 4452). The trial court did not so find in this case.
Helen was the putative spouse (Civ. Code § 4452) of Charles from October 14, 1963, until his death.
Catherine Kotsay, Lillian Mayorga and Dorothy Hafner, the three daughters of Joan and Charles,
and Kimberly Hafner, the daughter of Helen and Charles, were all children of decedent Charles
Hafner.
The Character of the Property
We must view the character of the property in Charles’s intestate estate from the perspectives of the
surviving wife and the surviving putative spouse.
(a) From the Perspective of Joan
As to Joan, the entire probate estate was the separate property of Charles, the decedent.
Charles was a married person, married to Joan, and was living separate from her at the time the
money was received by him in 1975, pursuant to the settlement of his claim for damages for
personal injury.
At the time Charles’s personal injury settlement money was received, in 1975, Civil Code section
5126 provided, in pertinent part: “(a) All money ... received by a married person ... for damages for
personal injuries ... pursuant to an agreement for the settlement or compromise of a claim for such
damages is the separate property of the injured person if such money ... is received ...:... (2) While
either spouse, if he or she is the injured person, is living separate from the other spouse.”
Civil Code section 5126 is consonant with Civil Code section 5118 which provides, in pertinent part:
“The earnings and accumulations of a spouse ... while separate and apart from the other spouse, are
the separate property of the spouse.”
(b) From the Perspective of Helen
As to Helen, the entire probate estate is quasi-marital property.
The trial court found that Helen was the putative spouse of Charles. At the time of the events of this
case, former section 4452 of the Civil Code, a part of The Family Law Act enacted in 1969,
provided, in pertinent part: “Whenever a determination is made that a marriage is void or voidable
and the court finds that either party or both parties believed in good faith that the marriage was
82

valid, the court shall declare such party or parties to have the status of a putative spouse, and, if the
division of property is in issue, shall divide, in accordance with Section 4800, that property acquired
during the union which would have been community property or quasi-community property if the
union had not been void or voidable. Such property shall be termed ‘quasi-marital property.”’
Principles Applicable to Intestate Succession to Quasi-Marital Property of a Void Marriage
It is settled that in the case of a void or voidable marriage, as between a putative spouse and the
other spouse, or as between the surviving putative spouse and the heirs of his or her decedent other
than the decedent’s surviving legal spouse, the putative spouse is entitled to share in the property
accumulated by the partners during their void or voidable marriage. It is also settled that the share to
which the putative spouse is entitled is the same share of the quasi-marital property as the spouse
would receive as an actual and legal spouse if there had been a valid marriage, i.e., it shall be divided
equally between the parties. (Estate of Leslie, supra., 37 Cal.3d 186, 194 [207 Cal. Rptr. 561, 689 P.2d
133]; Civ. Code §§ 4452, 4800 subd. (a)).
The proportionate contribution of each of the parties to the property acquired during the void or
voidable union is immaterial in this state because it is divided as community property would be
divided upon the dissolution of a valid marriage. (Vallera v. Vallera (1943) 21 Cal.2d 681, 683-684
[134 P.2d 761]).
These principles were established by numerous judicial decisions, and were made a part of our
positive law by the enactment, in 1969, of Civil Code section 4452, a part of the Family Law Act,
effective January 1, 1970. There is no reason to believe that the Legislature, by that enactment,
intended to change those principles. (Cf. Marvin v. Marvin (1976) 18 Cal. 3d 660, 681 [134 Cal. Rptr.
815, 557 P.2d 106]).
The Trial Court Erred in Awarding the Entire Intestate Estate to the Putative Spouse
We have examined the cases cited by the trial court as authorities for its decision and find them
wanting. None of the cited cases is authority for a decision on the facts and issues which were
before the trial court in the case at bench.
The language used in an opinion is to be understood in the light of the facts and the issues then
before the court, and cases are not authority for propositions not considered therein and actually
adjudicated. (Code Civ. Proc., § 1911; People v. Ceballos (1974) 12 Cal.3d 470, 484 [116 Cal. Rptr. 233,
526 P.2d 241]; McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal. 2d 33, 38 [4 Cal. Rptr. 176,
351 P.2d 344; Coats v. Coats (1911) 160 Cal. 671, 679 [118 P. 441]; Karlin v. Zalta (1984) 154 Cal. App.
3d 953, 976 [201 Cal. Rptr. 379]; (and see authorities collected at 9 Witkin, Cal. Procedure (3d ed.
1985) Appeal, § 783, pp. 753-755.)
The principle issue before the court in this case is, as between the surviving wife and children of the
decedent, on the one hand, and the decedent’s good faith putative spouse under his bigamous
marriage, on the other, who is entitled to succeed to his intestate estate?
The trial court found and concluded that under the circumstances of this case, Helen had a legal
right to succeed to the entire estate under Probate Code section 201 as a surviving spouse. In
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support of that conclusion, the court cited Estate of Krone (1948) 83 Cal. App.2d 766 at page 770 [189
P.2d 741], Estate of Foy (19520 109 Cal.App.2d 329 [240 P.2d 685], Speedling v. Hobby (D.C. Cal. 1955)
132 F. Supp. 833, and Kunakoff v. Woods (1958) 166 Cal.App.2d 59, 67 [332 P.2d 773]; and then
sought to buttress its decision by also citing Union Bank & Trust Co. v. Gordon 91953) 116 Cal.app.2d
681, 689 [254 P.2d 644]; Estate of McAfee (1960) 182 Cal.App.2d 553, 556-557 [6 Cal. Rptr. 79]; Estate
of Long (1961) 198 Cal. App. 2d 732, 738 [18 Cal. Rptr. 105]; Estate of Goldberg (1962) 203 Cal. App.2d
402 [21 Cal. Rptr. 626].
With one exception, none of the cases relied upon by the trial court presented a fact situation similar
to the facts of the case at bench, and the facts of that one exception (Union Bank & Trust Co. v.
Gordon), supra., are so clearly and fairly distinguishable from the facts of this case that it is not
precedent or authority supporting the trial court’s decision.
Union Bank & Trust Co. v. Gordon, supra., 116 Cal. App.2d 681, was in fact a contest between Sara, the
first wife of Leo, the decedent, and Elsie, Leo’s putative wife. The bank was special administrator of
Leo’s estate which consisted entirely of property which Leo and Elsie had accumulated during their
21-year putative marriage and was in the nature of community property. Sara and Leo had married in
New York in 1921, and Sara obtained a decree of separate maintenance in 1927. In 1928 Leo moved
to California, and in 1929 he sued Sara for divorce in Nevada and obtained a decree of divorce; Sara
was served in that action. In 1929, Leo married Elsie and lived with her as husband and wife until he
died in 1950. In 1936, Sara married Milton, and in 1949 she obtained an annulment of that 13-year
marriage on the ground of fraud. In an action to quiet title to the property in Leo’s estate, the court
held that Sara was estopped “by every principle of law and equity from attacking the Nevada decree
or asserting its invalidity” (id., at p. 689) because she had acquiesced in and relied upon it when she
married Milton. The court also found that Leo and Elsie had a good faith putative marriage, and that
the property was acquired during that union. Leo had disposed of his interest in it by will.
In its decision in the case at bench, the trial court relied principally upon Estate of Krone, supra, 83 Cal.
App.2d 755.
In Estate of Krone, supra, 83 Cal. App.2d 766, three adult children of decedent by a previous marriage
filed a claim of interest in their father’s estate declaring that the property of the estate was the
separate property of the decedent in that his surviving wife was not his lawful wife because at the
time of their marriage her divorce from her former husband had not become final, though a final
decree was entered 10 months later. The surviving wife also filed a statement of claim of interest
alleging that she and decedent had been married in April 1934, and lived together as husband and
wife until his death in 1946, and alleging other facts which were set forth in the findings of the trial
court.
“The court found that [decedent and his wife had] lived and cohabited as man and wife from the
date of their attempted marriage until decedent’s death; that at the time of such marriage neither had
any property; that as a result of their joint efforts the parties accumulated personal property of the
value of $16,412.51; that at the time of her marriage appellant believed in good faith and that she
was the lawfully wedded wife of decedent, due to her ignorance of the law which required the lapse
of one year after the entry of an interlocutory decree; that she had obtained an interlocutory decree
from her former husband February 13, 1934, and that the final judgment therein was not entered
until February 19, 1935, or 10 months after her purported marriage to decedent; that she had no
information of any claim of illegality of her marriage to decedent until the filing by respondents of
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their claim to an interest in the estate;....” (Id., at p. 767.)
On appeal, the reviewing court implicitly found that the decedent and his surviving wife were
partners to a putative marriage. The court stated that “[t]he term [’putative marriage’] is applied to a
matrimonial union which has been solemnized in due form and celebrated in good faith by both
parties but which by reason of some legal infirmity is either void or voidable. The essential basis of
such marriage is the belief that the marriage is valid. (Vallera v. Vallera (1943) 21 Cal.2d 681, 684)”
(Estate of Krone, supra, 83 Cal. App.2d at p. 768). The court then reviewed several cases dealing with
the division of property acquired due to the joint efforts of the partners during a void or voidable
marriage entered into in good faith, and concluded “that upon the dissolution of a putative marriage
by decree of annulment or by death the [surviving spouse] is to take the same share to which [he or
she] would have been entitled as a legal spouse.” (Id., at p. 769.)
In Estate of Foy, supra, 109 Cal. App.2d 329, the contesting parties were the putative spouse (wife) of
the decedent and the decedent’s son by a prior marriage. Decedent’s marriage to his putative wife
had been celebrated in the interlocutory period following his divorce from his prior wife. Decedent
died intestate; his estate consisted entirely of property in the nature of community property. The
court held that the putative wife/widow was entitled to take the entire estate under former Probate
Code section 201. (Id., at pp. 331-332.)
Speedling v. Hobby, supra., 132 F.Supp. 833, was a controversy between a surviving putative spouse
(wife) and the Secretary of Health, Education and Welfare as to whether the putative wife/widow
had the same status in taking intestate property as a widow would have and would therefore be
eligible to receive “mother’s insurance benefits” under the social security act. Citing Krone, supra, 83
Cal. App.2d at 766, the United States District Court held that a putative spouse was entitled to
succeed to “community property” in California and therefore entitled to the social security benefit.
The putative spouse and decedent had married during the interlocutory period following a divorce,
and had lived together for 18 years until decedent’s death.
Kunakoff v. Woods, supra., 116 Cal. App.2d 59, was an action for wrongful death and the question was
whether a putative spouse (wife) was an “heir” within the meaning of the statutory wrongful death
law. (Code Civ. Proc., § 377). Citing Krone, supra., the court held that, in the case of intestacy, the
putative spouse could succeed to her “husband’s” estate under former Probate Code section 201,
and that, therefore, she was an “heir” and as such was entitled to bring an action for wrongful death
under Code of Civil Procedure section 377. Estate of McAfee, supra., 182 Cal. App.2d 553, is not
authority for anything relating to this case. McAfee was an appeal from an order appointing an
administrator of an estate. The reviewing court reversed the order, pointing out that the trial court
had failed to make findings, or had made conflicting findings, on material issues. The court
mentioned Estate of Krone, supra, 83 Cal. App.2d 766, in commenting that the trial court would have
to find whether the decedent was legally married and, if not, whether there was a putative marriage.
(Id., at pp. 556-557.)
Estate of Long, supra., 198 Cal. App.2d 732, was an appeal from an order decreeing final distribution
of an estate. It presented a contest between the half-siblings of the decedent and the decedent’s
surviving wife, Emma. The half-siblings questioned whether Emma was legally divorced from her
former husband at the time of her marriage to decedent. Ruling that the presumption of validity of
the second marriage had not been overcome, the court held that Emma and decedent were validly
married, that except for a few items their property had been acquired through their joint efforts, and
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that all of the property should be distributed to Emma except for decedent’s separate property and
that one-half of the separate property be distributed to her. In dictum, the court cited Krone, supra.,
and stated that if there had been a putative marriage between Emma and decedent, Krone would have
applied. (Id., at p. 738.) The Court of Appeal affirmed.
Estate of Goldberg, supra., 203 Cal. App. 2d 402, was a contest between Edith, the second wife of Sam,
and three of Sam’s children by his first marriage, for succession to Sam’s intestate estate. The
reviewing court affirmed the trial court’s ruling that Edith was Sam’s good-faith putative spouse and,
citing Krone, supra., ruled that Edith was entitled to the same share of the “community property” as
she would have received had she been his actual wife.
In sum, except for Union Bank & Trust Co. v. Gordon, supra., 116 Cal.2d 681, which is clearly
distinguishable from this case because of its facts compelling an estoppel, none of the cases relied
upon by the trial court present the facts and issues with which we are concerned, i.e., the competing
interests of a legal wife and a putative spouse. In Krone, Foy, and Goldberg, the controversy was
between a putative spouse and the decedent’s children by a prior marriage. In Long, the competing
interests were a legal wife and the decedent’s half siblings. Speedling stands only for the proposition
that a putative wife may be eligible for certain social security benefits based upon her decedent
“spouse’s” earnings, and Kunakoff establishes only that a putative spouse can be a plaintiff in a
wrongful death action. McAfee stands for nothing relevant to the case at bench.
Five additional cases cited by the trial court are of even lesser relevance to the case at bench than the
cases reviewed above, and do not require discussion in this opinion. Thus, we find that the cases
relied upon by the trial court do not support its decision and the judgment appealed from.
As Between the Surviving Spouse and Children of a Decedent and the Decedent’s Putative
Spouse, the Surviving Spouse and Children Are Entitled to Succeed to the Separate Property
in an Intestate Decedent’s Estate
We bear in mind that the issue presented in the case at bench is the proper resolution of the
competing interests of the legal wife of a decedent, and his putative wife, for succession to his
intestate estate.
In Estate of Leslie, supra., 37 Cal.3d 186, our Supreme Court, in deciding a contest between the
surviving putative spouse of an intestate decedent and the children of that decedent by a prior
marriage, observed that “[t]here may be cases in which two or more surviving spouses each claim an
intestate share of the decedent’s separate property. However, that scenario is not before this court
and need not be resolved at this time.” (Id., at p. 197, fn. 11.) The case at bench is such a case, and
we find substantial public policy and precedent to establish and protect the rights of the legal
spouse, and the children of the legal community, in the estate of their spouse and parent.
We first note that marriage and the family are highly favored by the public policy of the State of
California, as evidenced by statute and by countless decisions of our courts.
In decisions resolving competing claims of legal spouses of decedents and the decedents’ putative
spouses, as to the right to succeed to the decedent’s estate, our courts have awarded one-half of the
quasi-marital property to the putative spouse and the rest of the property to the decedent’s legal
heirs or as disposed of by decedent’s will.
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In Estate of Ricci (1962) 201 Cal.App.2d 146 [19 Cal. Rptr. 739], the contest was between Viola, the
first and legal wife of Henry, and his putative spouse, Antoinetta. At issue was heirship to the
property of decedent which had been acquired as the result of the joint efforts of decedent and
Antoinetta during the years of their void marriage. Viola and Henry were married in Italy in 1907;
that marriage was never terminated and remained in force until Henry’s death in 1956. Meanwhile,
Henry came to California. Antoinetta, in good faith, participated in a ceremonial marriage with
Henry in 1919. Henry and Antoinetta lived together as husband and wife continuously thereafter
until Henry died, intestate, in 1956. The trial court found, inter alia, that Antoinetta was the
surviving putative wife of Henry, that the presumption of the validity of the second marriage had
been overcome, and that there was no basis in the evidence for an estoppel against Viola. The trial
court decreed that one-half of the property should be awarded to Viola and the other half to
Antoinetta. The Court of Appeal concluded that the decision of the trial court was supported by the
evidence and the law and affirmed the decree.
In its opinion, the reviewing court quoted extensively from Burby, Family Law for California
Lawyers, at pages 359-360, setting forth his comments on the problems arising in the distribution of
property accumulated in a void or voidable marriage. Professor Burby had written: “’Some difficulty
is presented if conflicting claims are asserted by a legally recognized spouse and a putative spouse.
Of course the claim of a putative spouse must be limited to property acquired during the
continuance of that relationship. It seems obvious that one-half of the property in question belongs
to the putative spouse. The other half belongs to the legal community (husband and legally
recognized spouse) and should be distributed as any other community property under the same
circumstances.
“A putative marriage was involved in Estate of Krone. The property in question was acquired during
the continuance of this relationship and was claimed by the putative wife after the death of the
husband. Her claim was resisted by issue of a former marriage. The court held that all of the
property in question passed to the putative spouse by force of Probate Code section 201, which
provides: “Upon the death of either husband or wife, one-half of the community property belongs
to the surviving spouse; the other half is subject to the testamentary disposition of the decedent, and
in the absence thereof goes to the surviving spouse ....” The conclusion reached by the court seems
to be a proper one. The claimants (husband’s issue by a former marriage) would be entitled to
recover only on the theory that the property in question constituted a part of the husband’s separate
estate. But the property in question was not of that type.”
“A much more difficult problem would be raised if a claim were asserted by a legally recognized
spouse. That was the situation involved in Union Bank & Trust Co. v. Gordon [supra.] 116 Cal.App.2d
681. The deceased husband devised and bequeathed one-half of the property acquired during the
putative marriage to his putative wife, Elsie, and one-half to his children. The legally recognized wife
claimed a right to share in his estate. This claim was denied. [The trial court held, inter alia, that the
legal wife] was estopped to deny the validity of the putative marriage because after her purported
divorce (it was void because secured by the husband in Nevada and without having established a
sufficient domicile) she purported to enter into another marriage. In the absence of the argument
that she was estopped to deny the validity of the husband’s putative marriage, there is no sound
reason for excluding the legally recognized spouse from her share in acquisitions made by her
husband during a putative marriage. It is true that one-half of the property belongs to the putative
spouse but the other half belongs to the legally recognized community and there is no basis upon
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which the legally recognized spouse can be excluded from a proper share therein.” (Estate of Ricci,
supra., 201 Cal. App. 2d at pp. 148-150). (Estate of Ricci, supra, 201 Cal. App.2d at pp. 148-150).
The Ricci court went on to say: “The case of Union Bank & Trust Co. v. Gordon, supra., in which it was
held that the legal wife was not entitled to share in the estate of her deceased husband was correctly
decided on the basis of estoppel, but, as we analyze the authorities, the legal wife could not have
been excluded without the estoppel. To do so could penalize an innocent wife who had been
deserted by her husband, and would be contrary to section 201 of the Probate Code which states
that ‘Upon the death of either husband or wife, one-half of the community property belongs to the
surviving spouse; ...’ Here there are no facts in the record justifying the application of the doctrine of
estoppel.” (Id., at p. 150.)
“In conclusion we agree with the following statement of the learned trial judge in his memorandum
opinion: ‘Yet under the case law of this state it seems clear that each of the two widows absent of
the other is entitled to the whole estate. Thus, in a contest between them it would seem both logical
and equitable to divide the property equally, awarding the putative wife the half to which she
[presumably] contributed and giving to the legal but deserted wife the half over which the husband
normally has testamentary control.’” (Id., at pp. 151-152.)
Sousa v. Freitas (1970) 10 Cal. App.3d 660 [89 Cal. Rptr. 485], was a contest between Maria, the legal
wife of Manuel, and Catherine, his putative spouse, as to the property of Manuel’s estate, all of
which had been acquired by the joint efforts of Manuel and Catherine during their void marriage.
Maria and Manuel Sousa were married in Portugal in 1905; they had one son. Manuel emigrated to
California in 1908, changed his name to Freitas in 1915, and participated in a marriage ceremony
with Catherine in 1919. Catherine believed in good faith that she was lawfully married to Manuel and
lived with him as wife and husband until Manuel died in 1962. Manuel left a will devising and
bequeathing all of his property to Catherine. The trial court awarded the estate one-half to Maria and
one-half to Catherine. The Court of Appeal modified the judgment holding that Catherine was
entitled to one-half, being her share as a good-faith putative spouse, and the other half belonged to
the legal community of Manuel and Maria. Manuel had a right to dispose of one-half of that half by
his will, but the other half, one-fourth of the gross estate, belonged to Maria. As authority, the Court
of Appeal cited Estate of Ricci and quoted from Professor Burby’s comments as set forth in Ricci,
above.
Estate of Atherley (1975) 44 Cal.App.3d 758 [119 Cal. Rptr. 41, 81 A.L.R.3d 97], was a contest
between Ruth, the legal wife of Harold, and his putative wife, Annette, for determination of heirship
to Harold’s intestate estate. Ruth and Harold were married in 1933 and had two children. Harold left
Ruth in 1947 and joined Annette. Harold and Annette lived together from 1947 until Harold’s death
in 1969; they had no children. In 1961 Harold obtained an invalid divorce from Ruth in Mexico, and
in 1962 Harold married Annette in Nevada. Ruth, Harold, and Annette were in touch with each
other from time to time; they shared in common the knowledge of Harold’s marriage with Ruth, his
cohabitation with Annette, his invalid divorce from Ruth and his void marriage with Annette. Most
of Harold’s estate had been accumulated during the period of his cohabitation with Annette, both
before and after the void Mexican divorce and Nevada marriage. The trial court held that Ruth was
the surviving spouse and implicitly held that Annette was Harold’s putative spouse. The estate was
comprised of a mixture of real and personal property, including separate property and joint tenancy
property. The Court of Appeal, applying the rule of Sousa v. Freitas, supra., 10 Cal. App.3d 660, held
that Annette, the putative spouse, was entitled to one half of the total estate as well as those assets
88

which were hers by separate ownership or joint tenancy survivorship, and that the rest of the estate
was property of the legal marriage and passed by intestate succession; that Ruth had an interest in
that property as the surviving spouse but, since Ruth and Harold had two children, the extent of her
interest depended on whether it was community or separate property. The judgment was reversed in
part with directions.
3.2.2

Common Law Spouse

Unlike the putative spouse, persons in common law relationships know that they are not in
traditional legal marriages. Nonetheless, if one of the persons in the relationship dies, the person
who survives may expect to be considered a surviving spouse for intestacy purposes.

In re Estate of Duval, 777 N.W.2d 380 (S.D. 2010)
MEIERHENRY, Justice.
Nathalie Duval-Couetil and Orielle Duval-Georgiades (Daughters) appeal the circuit court’s
judgment that Karen Hargrave (Hargrave) was the common-law wife of their father, Paul A. Duval
(Duval). Daughters contend the circuit court erred when it held that Duval and Hargrave entered
into a common-law marriage under the laws of Mexico and Oklahoma. We agree and reverse the
circuit court.
FACTS AND BACKGROUND
Duval and Hargrave began living together in Massachusetts in 1994. In 1995, Duval acquired a
home in Custer, South Dakota. Hargrave moved from Massachusetts to Duval’s home in South
Dakota in 1996. In 1997, Duval and Hargrave began a yearly routine of spending the summer
months in Custer and the winter months in Mexico. In 1998, Duval and Hargrave bought a home
together in Nuevo Leon, Mexico, as husband and wife.
In 2005, Duval was assaulted while in Mexico and placed in an intensive care unit for his injuries.
Hargrave lived with Duval at the hospital while he was being treated. She later took Duval to
Oklahoma for rehabilitation at a hospital in the Tulsa area and eventually to Rochester, Minnesota,
for medical treatment at Mayo Clinic. Duval and Hargrave subsequently returned to Oklahoma for a
period of time; and then, resumed their annual routine of spending winters in Mexico and summers
in Custer. Duval was killed as a result of a rock climbing accident on June 24, 2008, in Custer
County, South Dakota.
Duval and Hargrave never formally married. Hargrave testified that she and Duval had discussed a
formal wedding ceremony, but mutually decided against it. She said they did not think they needed
to marry because they held themselves out as husband and wife and felt like they were married. The
circuit court specifically found that over the course of Duval and Hargrave’s relationship, Duval
referred to Hargrave as his wife on an income tax return form, designated her as the beneficiary on
his VA health benefits application, and executed a general power of attorney in her favor.

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The circuit court ultimately concluded that Hargrave had established that she and Duval met the
requirements for a common-law marriage under the laws of both Mexico and Oklahoma. As such,
Hargrave was treated as Duval’s surviving spouse for inheritance purposes in South Dakota.
Daughters appeal. Daughters’ main issue on appeal is whether the circuit court erroneously
recognized Hargrave as Duval’s surviving spouse entitling her to inherit from his estate. They claim
(1) that the South Dakota domicile of Duval and Hargrave precluded them from entering into a
common-law marriage in either Mexico or Oklahoma, (2) that South Dakota law does not recognize
a Mexican concubinage as a marriage, and (3) that Hargrave and Duval had not entered into a
common-law marriage under Oklahoma law.
ANALYSIS
The relevant facts are not in dispute. Because the issues involve questions of law, our review is de
novo. Sanford v. Sanford, 2005 SD 34, 12, 694 N.W.2d 283, 287. The first issue centers on whether
South Dakota will give effect to a common-law marriage established by South Dakota domiciliaries
while living in a jurisdiction that recognizes common-law marriage.
Common-Law Marriage
Common-law marriages were statutorily abrogated in South Dakota in 1959 by an amendment to
SDCL 25-1-29. Notwithstanding, Hargrave contends that South Dakota continues to recognize valid
common-law marriages entered into in other jurisdictions. Hargrave relies on SDCL 19-8-1, which
provides that “[e]very court of this state shall take judicial notice of the common law and statutes of
every state, territory, and other jurisdiction of the United States.” Id. In addition to taking judicial
notice of the common-law of other states, the South Dakota Legislature specifically addressed the
validity of marriages entered into in other jurisdictions in SDCL 25-1-38. This statute provides that
“[a]ny marriage contracted outside the jurisdiction of this state ... which is valid by the laws of the
jurisdiction in which such marriage was contracted, is valid in this state.” Id. In view of these
statutes, we conclude that a common-law marriage validly entered into in another jurisdiction will be
recognized in South Dakota.
Daughters argue that the domicile of the couple controls their ability to enter into a common-law
marriage. Daughters urge this Court to adopt a rule requiring parties to a common-law marriage to
be domiciled in the state in which the marriage occurred. Thus, a couple domiciled in South Dakota
could not be considered married merely by traveling to another state that recognizes common-law
marriage and meeting that state’s common-law marriage requirements. Daughters further allege that
at all relevant times, Duval and Hargrave were domiciled in South Dakota, thereby precluding them
from entering into a common-law marriage in either Mexico or Oklahoma. Daughters cite Garcia v.
Garcia as authority for the domicile requirement. 25 S.D. 645, 127 N.W. 586 (1910). In Garcia, we
said that a marriage “valid in the state where it was contracted, is to be regarded as valid in [South
Dakota].” Id. at 589. We do not interpret Garcia as requiring domicile in the state in which the
marriage occurred.
This is consistent with other jurisdictions that do not require parties to establish domicile in the state
where the common-law marriage occurred. Minnesota courts have recognized common-law
marriages entered into in other jurisdictions. In Pesina v. Anderson, the court held it would “recognize
a common-law marriage if the couple takes up residence (but not necessarily domicile) in another
state that allows common-law marriages.” 1995 WL 387752 *2 (Minn. Ct. App. 1995) (quoting
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Laikola v. Engineered Concrete, 277 N.W.2d 653, 658 (Minn. 1979)) (citations omitted). Similarly, in
Vandever v. Indus. Comm’n of Ariz., the court stated that it “disagree[d] with the legal reasoning of
cases which hold that the policy of the domicile disfavoring common-law marriages should govern
unless the couple has subsequently established residence in a state recognizing such marriages.” 148
Ariz. 373, 714 P.2d 866, 870 (1985). The Vandever court went on to state, “[t]hese cases effectively
read a requirement of residency into the law of all common-law marriage states which may or may
not exist.” Id. See Grant v. Superior Court in and for County of Pima, 27 Ariz. App. 427, 555 P.2d 895,
897 (1976) (“Although Arizona does not authorize common law marriage, it will accord to such a
marriage entered into in another state the same legal significances as if the marriage were effectively
contracted in Arizona.”). Mississippi has also recognized that “[t]he [domicile requirement] argument
ignores the basic right of all persons to choose their place of marriage. As long as they follow the
requirements of the law of the state of celebration, the marriage is valid in most jurisdictions.” George
v. George, 389 So.2d 1389, 1390 (Miss. 1980). Likewise, Maryland “has continuously held that a
common-law marriage, valid where contracted, is recognized in [Maryland].” Goldin v. Goldin, 48
Md.App. 154, 426 A.2d 410, 412 (Md. Ct. Spec. App. 1981).
In addition to Garcia, the plain meaning of SDCL 25-1-38 does not require domicile in the foreign
jurisdiction in order for the marriage to be considered valid in South Dakota. Consequently, we hold
that South Dakota does not require domicile in the foreign jurisdiction before recognizing that
jurisdiction’s common-law marriage scheme. All that is necessary for a marriage from another
jurisdiction to be recognized in South Dakota is for the marriage to be valid under the law of that
jurisdiction. See SDCL 25-1-38. Thus, the question in this case is whether Duval and Hargrave would
be considered validly married under the laws of either Nuevo Leon, Mexico, or Oklahoma.
Concubinage in Mexico
The parties agree that Nuevo Leon, Mexico, has no common-law on which a common-law marriage
could be established. See In the Common Law of Mexican Law in Texas Courts, 26 Hous. J. Int’l. L. 119,
151-56 (2003)(citing Nevarez v. Bailon, 287 S.W.2d 521, 523 (Tex. Civ. App. 1956)). Nuevo Leon
does, however, have a law that gives certain rights to persons who have entered into a concubinage.
Hargrave provided the state law of Nuevo Leon, which defines a concubinage as:
[T]he union of a man and woman, free from formal matrimony, who for more
than five years make a marital life without being united in a formal matrimony
unto the other as long as there is no legal impediment to their contracting it. The
concubine’s gender union can have rights and obligations in reciprocal form, of
support and inheritance, independently of all others recognized by this code or
other laws.
Compilacion Legislativa del Estado de Nuevo Leon, p 50, Book I of Persons, Title V of Matrimony,
Ch 11 of Concubinage, Art 291. The circuit court concluded that concubinages were to be given the
same legal effect as common-law marriages validly entered into in the United States. Daughters
argue, however, that a concubinage is not the legal equivalent of a common-law marriage.
Other 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
a concubinage was not entitled to claim any of the man’s property after his death as his common-law
wife because common-law marriage was not recognized in that Mexican state. 287 S.W.2d at 523.
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The court noted that under Mexican law a concubinage was a “ ‘legal union’ but not a legal
marriage.” Id. Because the woman met the definition of a concubine, she was entitled to certain
rights, but was not a common-law wife under the laws of Mexico. Id. Consequently, she was not
entitled to the benefits given to a common-law wife in Texas “for such a relationship [was] nonexistent in [Mexico],” and she would not “qualify in her home jurisdiction as a surviving wife.” Id. at
525.
A California court similarly addressed the issue of whether “concubinage is equivalent to a Mexican
common law marriage[.]” Rosales, 113 Cal.App. 4th at 1183, 7 Cal. Rptr.3d 13. In Rosales, a Mexican
citizen claimed she was the surviving spouse, for purposes of a wrongful death claim, of a deceased
American who was the father of her children. Id. The Rosales court, citing Nevarez, determined “that
although concubinage is a legal relationship in Mexico, it is not a legal marriage.” Id. at 1184, 7
Cal.Rptr. 3d 13. The Rosales court affirmed the trial court on this basis recognizing that
“concubinage is not equivalent to a common law marriage because it does not confer on the parties
all of the rights and duties of marriage.” Id.
We are persuaded by the reasoning of Nevarez and Rosales and also conclude that a Mexican
concubinage is not the legal equivalent of a common-law marriage in the United States.
Consequently, the circuit court erred in concluding the concubinage between Duval and Hargrave, if
one existed, had the same legal effect as a common-law marriage. Therefore, we reverse on this
issue.
Common-Law Marriage in Oklahoma
The circuit court concluded that Duval and Hargrave entered into a valid common-law marriage
while they lived in Oklahoma. The Oklahoma Court of Civil Appeals recently reaffirmed its
recognition of common-law marriages and its requirements. The court stated:
[T]his Court recognizes in accordance with established Oklahoma case law that,
absent a marital impediment suffered by one of the parties to the common-law
marriage, a common-law marriage occurs upon the happening of three events: a
declaration by the parties of an intent to marry, cohabitation, and a holding out
of themselves to the community of being husband and wife.
Brooks v. Sanders, 190 P.3d 357, 362 (Okla. Civ. App. 2008). In Brooks, the court referenced an earlier
Oklahoma case that explained the requirements of Oklahoma’s common-law marriage as follows:
“ ‘To constitute a valid “common-law marriage,” it is necessary that there should be an actual and
mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others,
between parties capable in law of making such contract, consummated by their cohabitation as
man and wife, or their mutual assumption openly of marital duties and obligations. A mere
promise of future marriage, followed by illicit relations, is not, in itself, sufficient to constitute
such marriage.’ ”
Id. at 358n. 2 (quoting D.P. Greenwood Trucking Co. v. State Indus. Comm’n, 271 P.2d 339, 342 (quoting
Cavanaugh v. Cavanaugh, 275 P. 315)). Based on the language of these two cases, it appears that
Oklahoma requires (1) a mutual agreement or declaration of intent to marry, (2) consummation by
cohabitation, and (3) publicly holding themselves out as husband and wife. Oklahoma law requires
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the party alleging a common-law marriage satisfy these elements by clear and convincing evidence.
Standefer v. Standefer, 26 P.3d 104, 107 (citing Maxfield v. Maxfield, 258 P.2d 915, 921).
Thus, the first requirement Hargrave had to satisfy by clear and convincing evidence was that she
and Duval had mutually agreed and/or declared their intent to marry while in Oklahoma. Brooks, 190
P.3d at 362. “Some evidence of consent to enter into a common-law marriage are cohabitation,
actions consistent with the relationship of spouses, recognition by the community of the marital
relationship, and declarations of the parties.” Standefer, 26 P.3d at 107 (citing Reaves v. Reaves, 82 P.
490). The circuit court made no finding on mutual agreement or declaration of intent to marry, yet
concluded that Duval and Hargrave entered into a common-law marriage. We have said a circuit
court “is not required to ‘enter a finding of fact on every fact represented, but only those findings of
fact essential to support its conclusions.’ ” In re S.K., 587 N.W.2d 740, 742 (quoting Hanks v. Hanks,
334 N.W.2d 856, 858-59 (S.D. 1983)) A finding on whether the couple mutually agreed or declared
their intent to marry while in Oklahoma was essential to support the circuit court’s conclusion that
they entered into a common-law marriage. A review of the testimony may explain why the circuit
court was unable to enter a finding of a mutual agreement or declaration of intent to enter into a
marital relationship.
Hargrave testified that she and Duval entered into an “implicit agreement” to be married while they
were in Oklahoma. She also testified that “nobody said, okay, so we should agree to be married and
write it down and put the date on it.” When asked on cross-examination if there was ever a point
when she and Duval made an agreement to be married, Hargrave stated in the negative, and said the
couple just decided “well, I guess we are [married].”
The Oklahoma Supreme Court addressed this issue under a similar situation and recognized the
importance of establishing a clear intent to marry. Standefer, 26 P.3d at 107-08. In Standefer, the court
stated the “evidence [wa]s clear and convincing that both parties assented to a marriage on
Thanksgiving Day of 1988.” 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
to identify an instance where they mutually assented to a marriage. This fact stands in contrast to the
present case where Hargrave’s testimony established that no specific time existed when the couple
mutually agreed or declared their intent to be married. To meet Oklahoma’s requirements, their
mutual agreement or declaration to marry would have to be more than an implicit agreement. This
consent requirement is consistent with SDCL 25-1-38, which sets forth the requirement that a
marriage must be “contracted” in the other jurisdiction before South Dakota will recognize the
marriage as valid. SDCL 25-1-38 provides “[a]ny marriage contracted outside the jurisdiction of this
state ... which is valid by the laws of the jurisdiction in which such marriage was contracted, is valid in
this state.” Id. (emphasis added). Failing to establish that mutual assent or a declaration to marry
took place, Hargrave could not meet the first requirement for entering into a common-law marriage
in Oklahoma as outlined by Brooks 190 P.3d at 362.
The absence of a finding of fact on this issue, coupled with Hargrave’s testimony, leads to a
conclusion that as a matter of law Hargrave could not prove by clear and convincing evidence that
the couple entered into a valid common-law marriage while in Oklahoma. Thus, no legal basis
existed to support the circuit court’s conclusion that the parties entered into a common-law marriage
in Oklahoma.

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CONCLUSION
Based on the foregoing, we conclude that Duval and Hargrave were not validly married under either
Mexico or Oklahoma law. Consequently, Hargrave cannot be considered a surviving spouse for
purposes of inheriting from Duval’s estate.
We reverse and remand to the circuit court for proceedings consistent with this opinion.
Notes, Problems, and Questions
1. Common law marriages are recognized in several states, including Colorado, Iowa, Kansas,
Montana, New Hampshire, South Carolina, Texas, Utah, Alabama and Rhode Island. A few states
like Ohio, Illinois, New Jersey and Florida have statutes specifically stating that common law
marriages are not legally recognized. A person who meets the common law marriage requirements of
State A and moves to State B, a state that does not recognize common law marriage, may still be
considered to be a legal spouse by State B. See Grant v. Superior Court In and For Pima County, 555 P.2d
895 (Ariz. App. 1976); Vaughn v. Hufnagel, 473 S.W.2d 124 (Ky. 1971); Estate of Booth v. Director,
Division of Taxation, 27 N.J. Tax. 600 (2014).
2. What are the pros and cons of permitting persons in common law marriages to inherit on par with
surviving spouses of legal marriages? What factors should be used to decide whether or not a person
is a common law spouse? Should the same standards apply to establish a common law marriage for
spousal support and for the intestate spousal elective share? See Jennifer Thomas, Common Law
Marriage, 22 J. Am. Acad. Matrim. Law 151 (2009); Sarah Primrose, The Decline of Common Law
Marriage and the Unrecognized Cultural Effect, 34 Whittier L. Rev. 787 (Winter 2003).
3. If the common law marriage in Duval was legally recognized, how much of the estate would the
surviving spouse take in a UPC jurisdiction? In your state if it has not adopted the UPC?
4. On October 8, 2015, Travis County Probate Judge Guy Herman recognized a common-law same
sex marriage in Texas. The judge signed an order declaring that the eight year relationship between
Stella Poswell and Sonemaly Phrasawath met the legal requirements of marriage without a license.
Thus, Phrasawath was entitled to inherit Powell’s intestate estate as a surviving spouse. The case
arose when Powell died intestate and left no surviving children or parents. Powell’s siblings argued
that she died without a surviving spouse because, at the time of her death, she could not legally
marry another woman under Texas law. Therefore, they claimed they were the next in line to inherit
Powell’s estate. The judge reasoned that Phrasawath was entitled to Powell’s estate because Texas’
same-sex marriage ban was in violation of the couple’s constitutional rights. In essence, the judge
applied the United States Supreme Court’s decision invalidating bans on same-sex marriages
retroactively. As of the writing of the book, the Texas Attorney General had vowed to appeal this
decision. The main concern is that the decision may result in the opening of probate estates in Texas
and the redistribution of intestate estates.

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3.2.3

Same-Sex Spouse

Under the intestacy system, the word “spouse” referred to a person involved in a marital
relationship with a person of the opposite sex. Consequently, persons in committed long-term
relationships with persons of the same-sex could not inherit as surviving spouses. A recap of the
history of same-sex marriages in the United States is unnecessary and beyond the scope of this
section. 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
(Haw. 1993) ruled that the state had to show a compelling reason for denying marriage licenses to
same-sex couples. The state legislature reacted to the Baer decision by enacting a reciprocal
beneficiary statute that gave some of the benefits of marriage to couples who were not legally
permitted to marry. A defeat for those same-sex marriage advocates happened when President
William J. Clinton signed the Defense of Marriage Act (DOMA) into law. According to the
provisions of DOMA, the federal definition of marriage was limited to the union of one man and
one woman. DOMA also stated that a state was not required to recognize any other sort of marriage
even if that marriage was valid in another state. As a result of DOMA, same-sex couples could not
take advantage of federal benefits like Social Security Survivors’ benefits. A few years after the
passage of DOMA the tide turned when the Vermont Supreme Court heard Baker v. State, 744 A.2d
864 (Vt. 1999) and held that the denial of a marriage license to a same-sex couple violated the
“common benefits” clause of the state constitution. The Court ordered the state to extend the
benefits of marriage to same-sex couples or issue marriage licenses to those couples. In response,
the Vermont legislature enacted a civil union statute that gave same-sex couples the option to enter
into civil unions that gave them all of the rights and responsibilities of marriage. In 2003, in Goodridge
v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) the Massachusetts Supreme Judicial Court
held that because the state did not have a rational basis for refusing to grant a marriage license to a
same-sex couple that denial violated the equal protection guarantee of the state’s constitution. A
divided United States Supreme Court struck down section three of DOMA in U.S. v. Windsor,
133 S. Ct. 2675 (2013). On June 26, 2015, the United States Supreme Court ruled in Obergfell v.
Hodges, 135 S. Ct. 2584 (2015) that state bans on same-sex marriages were unconstitutional. The
Court held that the refusal to grant marriage licenses to same-sex couples and the failure to
recognize those marriages performed in other states violates the Due Process and the Equal
Protection clauses of the Fourteenth Amendment of the United States Constitution. Consequently,
the laws governing opposite sex spouses now apply to persons in same-sex marriages.
3.2.4

Other Issues Impacting the Status of Surviving Spouse

In the previous sections, we discussed cases involving persons who could have been denied
the right to inherit as a surviving spouse because of the nature of their marital relationships. Those
persons acted in the capacity of spouses and did not take any steps to indicate that they did not want
to be a part of their marital relationships. The persons’ ability to inherit as surviving spouses was
based upon the fact that they functioned as spouses. Those “functional spouses” were treated like
legal spouses, so that they could receive a portion of the intestate estates. The facts of the cases
discussed in this section are totally different. The persons seeking to inherit engaged in activities that
adversely impact their marital relationships. The plaintiff in the first case went to court to be legally
separated from her husband. The second case deals with the issue of spousal abandonment. Let look
at the tales of two ladies named Frances.
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3.2.4.1 Legal Separation

Estate of Lahey, 76 Cal App. 4th 1056, 91 Cal. Rptr. 30 (Ct. App. Cal. 1st Dist. Div. 5, 1999)
JONES, P.J.
The question presented in this proceeding is whether a spouse who obtained a judgment of legal
separation qualifies as a surviving spouse for purposes of intestate succession. We agree with the
trial court that the decedent’s widow here does not qualify as a surviving spouse. We affirm the
judgment.
Factual and Procedural History
Frances Lahey and decedent Clarence G. Lahey were married in 1984; they separated in March 1995.
In April 1995 Frances, acting in propria persona, petitioned for legal separation. She alleged that
there were no known community debts or assets. She requested termination of the court’s
jurisdiction to award spousal support to Clarence, and she gave up her own right to receive spousal
support. Clarence’s default was eventually entered, and in July 1995 a judgment for legal separation
was filed, declaring as follows: “There are no children or items of community property subject to the
disposition by this Court. Spousal support for Respondent is terminated by default. The Court’s
jurisdiction to award spousal support to either party is terminated.”
In December 1996 Clarence died intestate survived by Frances and by his daughter from a prior
marriage, Dorothy Bianchi, who was appointed administrator of his estate. Apparently the main
estate asset consists of decedent’s separate property residence at 237 Glenwood Avenue in Daly
City. Frances filed a creditor’s claim seeking her intestate share of the estate as the surviving spouse,
but the claim was rejected by the administrator. She then filed the instant action alleging entitlement
to one-half of the decedent’s estate as the surviving spouse.
After a court trial, the trial court concluded that Frances did not qualify by statute as the surviving
spouse inasmuch as she had obtained a judgment resolving her marital property rights. Frances
appeals.
Discussion
I. Judgment of Legal Separation
When a decedent dies intestate, the surviving spouse is entitled to a share of the community
property belonging to the decedent and a share of the decedent’s separate property. (Prob. Code, §
6401). “Surviving spouse” is defined by statute to exclude a person whose marriage to the decedent
was dissolved or annulled and also to exclude “[a] person who was a party to a valid proceeding
concluded by an order purporting to terminate all marital property rights.” (Prob. Code, § 78, subd.
(d).)

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There is no question that Frances’s marriage to the decedent had not been dissolved or annulled. A
judgment of legal separation leaves the marriage bonds intact. (See Fam. Code § 2347; Faught v.
Faugh (1973) 30 Cal. App.3d 875, 878 [106 Cal. Rptr. 751]; Elam v. Elam (1969) 2 Cal. App.3d 1013,
1019-1020 [83 Cal. Rptr. 275].) However, it is obvious that a surviving spouse for purposes of
intestate succession is distinct from the legal wife or husband of the decedent. Probate Code section
78 excludes not only a spouse whose marital status has been terminated but also a spouse whose
marital property rights have been terminated. The issue before us, then, is whether the judgment of
legal separation constitutes an “order purporting to terminate all marital property rights” so as to
disqualify Frances as the surviving spouse.
The concept of divisible divorce permits issues of marital status and financial responsibility to be
litigated at separate times and in different forums. (Faught v. Faught, supra, 30 Cal. App.3d at p. 878).
As Frances acknowledges, a judgment of legal separation (formerly a decree of separate
maintenance) is designed to resolve the financial issues between the parties, including division of
community assets and liabilities and determination of support obligations. (See Krier v. Krier (946) 28
Cal.2d 841 [172 P.2d 681]; Faught v. Faught, supra, 30 Cal. App.3d at p. 878). A judgment for legal
separation, however, is not an interim order. It serves as a final adjudication of the parties’ property
rights and is conclusive and res judicata even in a subsequent proceeding to dissolve the marriage.
(Krier v. Krier, supra, 28 Cal. 2d 841; Faught v. Faught, supra, 30 Cal. App.3d at p. 878).
Frances argues that her petition for legal separation sought only limited relief, and the judgment of
legal separation cannot be read to exceed the relief prayed for. The Judicial Council form petition for
legal separation includes several boxes to be checked to indicate, e.g., a request for confirmation of
separate property assets and obligations, a request for spousal support, a request for termination of
jurisdiction to award spousal support, and a request that property rights be determined. Frances did
not check the box seeking a determination of property rights, nor did she check the box requesting
confirmation of separate property. She checked only the box declaring that there were no
community assets or liabilities and the box requesting termination of jurisdiction to award spousal
support. Frances argues because she made no request in her petition that all property rights be
determined, the judgment was not a determination of all her marital property rights.
We reject the argument. Under the statutory scheme, the court in a legal separation proceeding must
divide the known community assets and must characterize the parties’ liabilities as community or
separate. (Fam. Code §§ 2550, 2551). The court may also make orders for spousal support. (Fam.
Code §§ 4330). Here, Frances’s petition declared that there was no community property to divide,
and the judgment for legal separation said the same. The judgment also terminated the rights of both
parties to spousal support. That determination of the marital property rights was final and
conclusive and served to terminate Frances’s community property rights. There were no other
property rights that could have been determined.
Frances contends that nothing in the judgment for legal separation adjudicated the parties’ separate
property and therefore she retained her rights to succeed to the decedent’s separate property
residence. This contention, however, ignores the import of Probate Code section 78. That statute
excludes from the definition of surviving spouse one whose marital property rights have been
terminated. Nothing in the language or meaning of the statute requires in addition an express

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termination of inheritance rights, for the obvious effect of the statute itself is to terminate the
inheritance rights of such a spouse.
The judgment is affirmed.
Notes, Problems, and Questions
1. Why did Frances argue that she should have been permitted to inherit from Clarence’s estate?
2. The Court admitted that Frances was still legally married to Clarence. Why did the Court refuse to
recognize Frances as a surviving spouse?
3. Consider the following example. Floyd and Glenda were married for 25 years. After Floyd was
diagnosed with cancer, the couple spent a lot of money on medical bills. Floyd and Glenda went to a
local charity for assistance. The charity agreed to pay a portion of Floyd’s medical expenses if his
income fell below a certain amount. The woman who helped Glenda fill out the paperwork told
Glenda that Floyd would qualify for assistance if he and Glenda were legally separated. Thus,
Glenda filed for a legal separation. Two months after Glenda was granted a legal separation, Floyd
died intestate. Floyd was survived by Glenda and two children from his previous marriage, Vivian
and Leigh. Floyd’s probate estate which consisted of real estate he purchased prior to his marriage to
Glenda was worth $72,000. In a jurisdiction that follows the reasoning of the Lahey case would
Glenda be eligible to inherit from Floyd’s estate? If she is permitted to inherit, what portion of the
estate would Glenda receive in a UPC jurisdiction? In the jurisdiction where you live if it has not
adopted the UPC?
3.2.4.2 Abandonment

Estate of Joyner v. Joyner, 753 S.E.2d 192 (Ct. App. N.C. 2014) (Constructive Abandonment)
Opinion
HUNTER, Judge.
Plaintiffs appeal from an order entered 17 October 2012 in Lenoir County Superior Court by Judge
Phyllis M. Gorham granting defendants’ motion for summary judgment. On appeal, plaintiffs argue
there was a genuine issue of material fact with respect to whether Warren Joyner (“Warren”)
constructively abandoned his wife, Frances Joyner (“Frances”). After careful review, we affirm the
trial court’s order granting summary judgment.
Background
All plaintiffs in this case are surviving siblings of Frances. Frances died intestate on 17 January 2011
without children and with her husband, Warren, as her only potential heir. Warren died intestate on
6 February 2011, survived only by his mother. Plaintiffs brought this action against the coadministrators of Warren’s estate, Jessie Mae Britt and Linwood Joyner, and Warren’s mother, Jessie
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Bell Joyner (collectively “defendants”), seeking a declaratory judgment to bar Warren and his heirs
from inheriting from Frances on the ground that Warren actually or constructively abandoned
Frances.
Warren and Frances were married for twenty-six years and lived in the same home until Frances’s
death. They were both disabled; Warren had kidney failure, and Frances was a double amputee with
heart failure. Warren was unemployed for the last twenty years of the marriage.
The parties contest the level of care Warren provided for Frances. Plaintiffs claimed in depositions
that: (1) Warren would not take Frances to doctors’ visits without compensation for his time and
gas; (2) the couple ceased conjugal contact and Warren openly engaged in homosexual relationships;
(3) Warren moved into a separate bedroom in the home he shared with Frances; and (4) Warren
refused to provide food or financial support for Frances for at least the last six years of their
marriage. Defendants testified at the summary judgment hearing that Warren was the primary
caretaker of Frances and was a loving, caring husband, and that Warren helped Frances around the
house, cooked meals for her, checked her blood sugar, and provided her medication.
At the conclusion of deposition presentation and testimony at the hearing on defendants’ motion
for summary judgment, the trial court granted summary judgment for defendants. Plaintiffs timely
appealed.
Discussion
I. Whether Summary Judgment was Proper
Plaintiffs’ sole argument on appeal is that the trial court erred in granting defendants’ motion for
summary judgment. After careful review, we affirm.
“Our standard of review of an appeal from summary judgment is de novo; such judgment is
appropriate only when the record shows that ‘there is no genuine issue as to any material fact and
that any party is entitled to a judgment as a matter of law.’ ” In re Will of Jones, 362 N.C. 569, 573, 669
S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)).
When reviewing a grant of summary judgment “evidence presented by the parties must be viewed in
the light most favorable to the non-movant.” Brue—Terminix Co., v. Zurich Ins. Co., 130 N.C. App.
729, 733, 504 S.E.2d 574, 577 (1998). “Summary judgment is appropriate where the movant proves
that an essential element of the claim is nonexistent or that the opposing party cannot produce
evidence to support an essential element of his claim.” Holloway v. Wachovia Bank & Trust Co., N.A.,
339 N.C. 338, 351, 452 S.E.2d 233, 240 (1994) (citation omitted).
N.C. Gen. Stat. § 31A—1(a)(3) (2011) states that “[a] spouse who willfully and without just cause
abandons and refuses to live with the other spouse and is not living with the other spouse at the time of such
spouse’s death ” loses intestate succession rights in the other spouse. N.C. Gen. Stat. § 31A—1(a)(3),
(b)(1)(2011) (emphasis added). Plaintiffs cite Powell v. Powell, 25 N.C. App. 695, 699, 214 S.E.2d 808,
811 (1975), and Meares v. Jernigan, 138 N.C. App. 318, 321, 530 S.E.2d 883, 885-86 (2000), for the
proposition that a husband or wife could constructively abandon his or her spouse under section
31A-1 without leaving the marital home. They argue that Warren’s failure to provide monetary and
emotional support amounted to constructive abandonment and that he should be divested of his
right to intestate succession as a result. However, plaintiffs overlook the fact that Powell analyzes
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abandonment under N.C. Gen. Stat. § 50-16.2(4), which was repealed in 1995, and therefore is no
longer controlling. Act of Oct. 1, 1995, ch. 319, sec. 1, 1995 N.C. Sess. 641. Meares analyzes section
31A1(a)(3) and quotes language from Powell to support the proposition that a husband or wife could
constructively abandon his or her spouse without leaving the marital home, but the decision stops
short of reaching all elements in section 31A-1. Meares, 138 N.C. App. At 321-22, 530 S.E.2d at 886.
Our Supreme Court has made clear that abandonment alone is insufficient to deprive a spouse of
intestate succession rights under section 31A-1. In Locust v. Pitt Cnty. Mem’l Hosp., Inc., 358 N.C. 113,
118, 591 S.E.2d 543, 546 (2004), the Supreme Court held that “not living with the other spouse at
the time of such spouse’s death” is a necessary element of section 31A-1.
Notably, under the wording of the statute, intent to abandon and abandonment even when
combined, are insufficient to preclude an abandoning spouse from intestate succession. The
abandoning spouse must also “not [be] living with the other spouse at the time of such spouse’s
death.” N.C.G.S. § 31A-1. This Court has held that a spouse may abandon the other spouse
without physically leaving the home, thus likely prompting the legislature to include the additional
requirement in N.C.G.S. § 31A-1. Because absence from the marital home is an element under the statute, a
determination of spousal preclusion from intestate succession cannot be made until the death of
the other spouse.
Id. (emphasis added) (citations omitted). Because it is undisputed that Warren was not “absen[t]
from the marital home” at the time of Frances’s death, but was merely sleeping in a separate
bedroom, plaintiffs failed to meet this required element of section N.C.G.S. § 31A-1. See id.
Accordingly, we affirm the trial court’s entry of summary judgment in defendants’ favor. See
Holloway, 339 N.C. at 351, 452 S.E.2d at 240 (“Summary judgment is appropriate where the movant
proves that an essential element of the claim is nonexistent or that the opposing party cannot
produce evidence to support an essential element of his claim.”).
As plaintiffs failed to cite Locust in their brief, we remind counsel of the duty of candor toward the
tribunal, which requires disclosure of known, controlling, and directly adverse authority. See N.C.
Rev. R. Prof. Conduct 3.3(a), (a)(2) (2012) (“A lawyer shall not knowingly: ... fail to disclose to the
tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to
the position of the client and not disclosed by opposing counsel[.]”). While the duty to disclose
Locust rests upon plaintiffs, defendants also failed to cite the case. We remind counsel of the need to
be diligent in finding controlling authority.
Conclusion
Because plaintiffs failed to establish an element of their claim, we affirm the trial court’s order
granting defendants’ motion for summary judgment.
AFFIRMED.
Notes, Problems, and Questions
1. If the facts in the Joyner case are true as set forth by the plaintiffs, should Warren be permitted to
inherit from Frances’ estate? If we punish a person for being a bad spouse, where do we draw the
line?
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2. What was the constructive abandonment argument made in the Joyner case?
3. What is required to prove abandonment? Is abandonment enough to keep Warren from inheriting
from Frances’ estate?
4. Consider the following case. In 2010, Will and Delores were married in Maine. The couple did not
have any children. In 2013, Will and Delores had a terrible argument when she discovered that he
had quit his job to become an artist. Delores moved out of the house. She left a note stating, “When
you come to your senses, I’ll come back home.” After Delores left, Will could not afford the
mortgage payments, so he lost the house to foreclosure. Will moved to Alaska to live with his
brother. Five years later, Will sold his first painting for two million dollars. When Delores found out
about Will’s success, she contacted him and told him that she wanted to again be a couple. Will was
so happy that he booked a flight back to Maine. Unfortunately, Will’s plane hit a mountain and he
was one of the fatalities. Will died intestate survived by Delores, his sister, Grace, and his sister
Marla. Will’s grandmother, Sharon, also survived him. At the time of his death, Will’s estate was
worth 1.2 million dollars. What portion, if any, of Will’s intestate estate should Delores receive?
3.3

What does it mean to survive?
In order for a person to be considered to be a surviving spouse, he or she must survive the
decedent. The easy cases are the ones that involve situations where a person dies before his or her
spouse. The surviving spouse has the legal right to a share of the decedent’s estate. Nonetheless,
there are times when it is difficult to determine the identity of the surviving spouse. For example, if
the spouses died in a common accident, it may be impossible to definitively declare one as the
surviving spouse. This sad state of affairs has started to happen with some regularity. A high profile
case involved John F. Kennedy, Jr. and his wife Carolyn. The couple was killed when their plane
crashed into the ocean. Kennedy and his wife stayed in the oceans for several days. When their
bodies were found the medical examiner concluded that they died instantly. However, he could not
say who died first. The simultaneous death problem impacts the distribution of both intestate and
testate estates.
Legislatures and courts made several attempts to solve the simultaneous death problem. For
instance, the provisions of the original Uniform Simultaneous Death Act (USDA) of 1940 state that
if “there is no sufficient evidence” of the order of deaths, each person is considered to have died
before the other person, so neither inherits from the other. The legislatures adopting the USDA did
not give clear guidance on what was necessary to fulfill the sufficient evidence requirement. Thus,
courts were forced to evaluate the evidence on a case-by-case basis. That approach led to
inconsistent results.
There are some clear rules governing non-probate property where simultaneous death
cannot be definitely proven. Consider the following two examples. Ernie and Bert who owned a
house as joint tenants or community property owners died at the same time. Ernie was survived by
his mother, Peggy, and Bert was survived by his sister, Bernice. The court distributes Ernie’s onehalf interest in the house to Peggy and the Bert’s one half interest in the house to Bernice. One-half
of the property is distributed as if Ernie survived and one half is distributed as if Bert survived.
When an insured and the third-party beneficiary of a life insurance policy die simultaneously, the
proceeds are distributed as if the insured survived the beneficiary.
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3.3.1

Common Law

Under common law, the general rule was that, if several persons died in a common disaster,
there was no presumption as to survivorship. The person asserting survivorship had the burden of
proving that fact. The burden of proof was a preponderance of the evidence. It was not presumed at
common law that one person survived another, or that the persons died simultaneously, even in the
absence of proof that one survived the other. Therefore, the common law rule governing the
devolution of property of persons who perish in common disasters when there was no evidence as
to which died first was that the courts disposed of their property rights as though death had
occurred to all the persons at the same time. These common law rules were supplanted by the
Uniform Simultaneous Death Act.
3.3.2

Original Uniform Simultaneous Death Act

Matter of Bausch’s Estate, 100 Misc.2d 817 (N.Y. 1979)
F. WARREN TRAVERS, Surrogate.
The above named decedents were husband and wife and both died, apparently almost
simultaneously, as the result of injuries sustained in an automobile accident on March 5, 1979. It is
now necessary to establish the order of their deaths, in order that distribution of the assets of the
estates can be made.
In view of the circumstances of decedents’ deaths, it is necessary to consider whether the New York
State Uniform Simultaneous Death Act (EPTL 2-1.6 governs the distribution of the estates’ assets.
The statute provides that “where the title to property or the devolution thereof depends upon
priority of death and there is no sufficient evidence that the persons have died otherwise than
simultaneously, the property of each person shall be disposed of as if he had survived . . .” EPTL 21.6(a).
Where two persons die in a common disaster, there is no presumption as to which person survived,
and there is no presumption that the deaths were simultaneous. The burden of proof is on the party
claiming survivorship to establish it as a fact or by evidence, which fairly warrants an inference of
survivorship. (Matter of Spatafora, 35 Misc.2d 128, 229 N.Y.S.2d 601).
Petitioner claims that Paula E. Bausch survived her husband and that his estate should be distributed
accordingly. Petitioner has submitted the decedents’ death certificates which have been certified by
the County Coroner. The certificates recite that Paula E. Bausch died at 8:00 a. m., and her husband
died at 7:55 a. m. The certificates made by the County Coroner state in part: “On the basis of
examination and/or investigation, in my opinion death occurred at the time . . . stated.”
Public Health Law, Section 4103(3), provides in part that “a . . . death certificate . . . shall be prima
facie evidence in all courts and places of the facts therein stated.” There has been some question as
to whether a death certificate is admissible to prove any facts other than the fact of death. (See Fisch
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on New York Evidence, Section 956, and Matter of Esther T., 86 Misc.2d 452, 382 N.Y.S.2d 916, ,
and cases cited therein.)
This court is persuaded by the reasoning of Surrogate Bennet as expressed In Matter of Esther T.,
(supra) and holds that the death certificates offered by petitioner are admissible in evidence together
with the collateral facts stated therein and not solely for the proof of death.
The court is satisfied that EPTL 2-1.6 does not apply in the case now before the court.
The death certificates are sufficient proof of the fact that John A. Bausch predeceased his wife by
approximately five minutes.
The estate of John A. Bausch shall be distributed as though his wife survived, and Paul E. Bausch’s
estate shall be distributed as though her husband predeceased her.
Problems
1. Based upon the reasoning in the Bausch case, is it clear how much evidence is necessary to reach
the “sufficient evidence” requirement? Does this case provide guidance for attorneys in the
jurisdiction? The sufficient evidence only has to prove that one person survived for an instant. In
the Bausch case, the wife only survived her husband for five minutes. That small amount of time
changed the distribution of the estates and potentially disadvantaged the husband’s heirs.
2. If order of death can be determined, the USDA is not applicable. The statute also does not apply
if the decedent leaves a will containing survival language. In cases where the statute is applied, the
statute results in an even distribution of the parties’ estate. Thus, if H and W die in a common
disaster and it is not possible to prove who died first, half of the estate goes through H and half goes
through W.
3. Collin and Raven, husband and wife, were killed when their boat exploded. Their bodies were not
found until ten days later. Doctors concluded that they died from hypothermia when they were
thrown from the boat into the frigid lake. A Coast Guard officer testified that, when they were
discovered, 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
for an instant of time?
4. On April 12, 2000, Parker and Anita, husband and wife, were hiking. Parker tripped and fell down
a small hill. While trying to save Parker, Anita slipped and hit her head. Two hikers found the couple
and they were rushed to a nearby hospital. When Parker and Anita arrived at the emergency room,
they were both in serious condition. At the hospital, Anita’s brain started swelling and she was
rushed to the operating room. Due to an existing condition, Parker started having heart problems
and he was also taken to the operating room. Following the operations, Parker and Anita were both
placed on life support. A review of his medical records revealed that Parker had a living will stating
that he did not want to remain on life support for more than two days. Anita’s medical records
showed that she had an advanced health care directive that gave her sister, Trina, the right to make
her medical decisions. Thus, the hospital decided to keep Anita on life support until Trina could
arrive. Trina was out of the country, so she did not get to the hospital until April 16, 2000. Parker
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was taken off of life support on April 14, 2000 and pronounced dead. Trina gave the hospital
permission to remove Anita from last support on April 17, 2000. Was there sufficient evidence that
Anita survived Parker?
3.3.3

UPC and Modern USDA (120 Hour Rule)

It was basically impossible to determine if one person survived another person by an instant.
In addition, as the situation in problem 3 indicates, the order of death may sometimes be controlled
by doctors or other circumstances. In the interests of judicial economy and judicial consistency,
states legislatures adopted a bright line survival rule as a default approach. That approach was
codified in both the UPC and the USDA. It should be noted that the 120 hour rule does not really
solve the life support situation discussed in problem 3. In acknowledgment of that fact, most
probate attorneys include survival clauses in wills that mandate that the person survives the decedent
by 30 or 60 days.

Uniform Probate Act § 2-104. Requirement that Heir Survive Decedent for 120 Hours.
An individual who fails to survive the decedent by 120 hours is deemed to have predeceased the
decedent for purposes of homestead allowance, exempt property, and intestate succession, and the
decedent’s heirs are determined accordingly. If it is not established by clear and convincing evidence
that an individual who would otherwise be an heir survived the decedent by 120 hours, it is deemed
that the individual failed to survive for the required period. This section is not to be applied if its
application would result in a taking of intestate estate by the state under Section 2-105.

Stephens v. Beard, 428 S.W.3d 385 (Ct. App. Tex. 2014)
HOYLE, Justice.
Elaine Stephens, independent executrix of the estate of Vencie Beard and of the estate of Melba
Beard, appeals from declaratory judgments construing Vencie Beard’s will and Melba Beard’s will. In
two issues, Stephens asserts that the trial court erred in determining that Vencie and his wife, Melba,
died in a common disaster and that the Simultaneous Death Act applies to this case. We affirm.
BACKGROUND
Vencie Beard shot and killed his wife, Melba, on April 16, 2011. The death certificate states that the
time of her death was 8:59 p.m. Vencie died that same night at 10:55 p.m. from a self-inflicted
gunshot wound.
Paragraph 2.02 of each of the decedents’ wills provided for specific cash bequests to nine named
individuals if both Vencie and Melba died in a common disaster or under circumstances making it
impossible to determine which died first. Paragraph 2.03 of each will provided that if the spouse did
not survive the testator by ninety days, Janet Lea Hopkins would receive a portion of a tract of land.
Paragraph 2.04 of each will provided that if the spouse did not survive the testator by ninety days,
Matthew C. Hopkins would receive the remaining portion of that tract of land. In paragraph 2.05 of
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each will, Vencie and Melba gave “the rest and residue” of their estates to their respective spouses.
That paragraph further provided that if the spouse did not survive the testator by ninety days,
Beverly Kaye Gilmore and Janet Lea Hopkins would receive the residuary estate.
Stephens sought a declaration as to whether Vencie and Melba died in a common disaster or under
circumstances making it impossible to determine which of them died first. She also wanted a
determination of the amounts of the cash bequests the nine individuals were to receive under the
wills. She named as defendants the beneficiaries under the wills, Brandon Scott Beard, Brian Jake
Gilmore, Philip Chase Johnson, Megan Johnson, Jeremy Hopkins, Lindsey Beard, Pamela Johnson,
Roland Scott Beard, Janet Lea Hopkins, individually and as trustee for Matthew C. Hopkins, and
Beverly Kaye Gilmore.
The court determined that Vencie and Melba died in a common disaster and that, based on the
language in their wills, they intended to incorporate the statutory presumption of the Simultaneous
Death Act. Therefore, the court determined that paragraph 2.02 should apply to the distribution of
each estate. Further, the court declared that “the beneficiaries are to be awarded the amount
provided from each estate, to the extent the resources of the estate permit.”
COMMON DISASTER
In her first issue, Stephens argues that, because there is evidence of who died first, Melba and
Vencie did not die in a common disaster or under circumstances making it impossible to determine
who died first. Therefore, she argues, the trial court erred in concluding that they died in a common
disaster and the cash bequests provided for in paragraph 2.02 of each will were not effective.
Applicable Law
An executrix of a decedent’s estate may have a declaration of rights in respect to the estate to
determine questions of construction of the will. TEX. CIV. PRAC. & REM. CODE ANN. §
37.005(3)(West 2008). When reviewing the trial court’s legal conclusions, we evaluate them
independently and thus review the legal conclusions drawn from the facts solely to determine their
correctness. Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex. App.-Dallas 1997, pet. denied) (en banc).
Analysis
Paragraph 2.02 provided for cash bequests to certain defendants if both Vencie and Melba died in a
common disaster or under circumstances making it impossible to determine which died first. The
evidence shows that Vencie and Melba did not die at the same time and it is possible to determine
that Melba died first. Stephens asserts the trial court’s conclusion of law that the Beards died in a
common disaster was erroneous.
The term “common disaster” has been defined to mean “[a]n event that causes two or more persons
with related property interests ... to die at very nearly the same time, with no way of determining
who died first.” BLACK’S LAW DICTIONARY 292 (8th ed. 2007). Ordinarily, cases discussing
common disasters involve accidents or natural disasters. See White v. Taylor, 155 Tex. 392, 386 S.W.2d
925, 925 (1956) (automobile accident); Sherman v. Roe, 153 Tex. 1, 262 S.W.2d 393, 395 (1953)
(airplane accident); Males v. Sovereing Camp Woodmen of the World, Tex. Civ. App. 184, 70 S.W. 108, 108
(Fort Worth 1902, no writ) (storm). The word “common” can mean shared by two or more.
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MERRIAM–WEBSTER’S COLLEGIATE DICTIONARY 250 (11th ed. 2011). A disaster has
been defined as a calamitous event or great misfortune. Id. at 355. Generally, it can be said that a
common disaster is any situation where the death of two or more people arose out of the same set
of circumstances.
The record shows that Melba was found dead at her home. She died of a gunshot wound inflicted
by Vencie who then shot himself. He did not die immediately and was transported to a hospital
where he died about two hours later. The shots were fired in one episode, which is a common
disaster in spite of the fact that Vencie did not successfully kill himself immediately. Accordingly, the
trial court’s conclusion of law that Vencie and Melba died in a common disaster is not erroneous. See
Ashcraft, 952 S.W.2d at 910. We overrule Stephens’s first issue.
CONSTRUCTION OF THE WILLS
In her second issue, Stephens asserts that the Simultaneous Death Act does not apply in this case.
She further contends that even if it applied, the statute would not govern due to the exception in the
statute, which states that if a will provides for a disposition of property that is different from the
provisions of the statute, the statute will not apply. She asserts that the wills’ language providing for
a disposition of property in the event the couple died in a common disaster or under circumstances
making it impossible to determine who died first satisfies the exception. She further argues that
paragraphs 2.03, 2.04, and 2.05 provided for a different disposition of the property than the one set
forth in the statute. Therefore, she asserts, the wills did not incorporate the Simultaneous Death Act.
Applicable Law
The cardinal rule for construing a will requires that the testator’s intent be ascertained by looking to
the provisions of the instrument as a whole, as set forth within the four corners of the instrument.
Perfect Union Lodge No. 10 v. Interfirst Bank of San Antonio, N.A., 748 S.W.2d 218, 220 (Tex. 1988). The
will should be construed so as to give effect to every part of it, if the language is reasonably
susceptible of that construction. Id. Terms are to be given their plain, ordinary, and generally
accepted meanings unless the instrument itself shows them to have been used in a technical or
different sense. Steger v. Muenster Drilling Co., 134 S.W.3d 359, 372 (Tex. App.-Fort Worth 200, pet.
denied). If possible, all parts of the will must be harmonized, and every sentence, clause, and word
must be considered in ascertaining the testator’s intent. Id.
The Simultaneous Death Act provides that a person who dies less than 120 hours after the time the
decedent dies is deemed to have predeceased him and therefore cannot be a beneficiary. See generally
Act of May 17, 1979, 66th Leg., ch. 713, § 6, 1979 Tex. Gen. Laws 1740, 1743–44 (amended 1993)
(current version at TEX. EST. CODE §§ 121.001–.153 (West Pamph. 2013)). However, a
decedent’s will can provide for a disposition of property that is different from the provisions of the
Simultaneous Death Act and the statute will not apply. Act of May 17, 1979, 66th Leg., ch. 713, § 6,
1979 Tex. Gen. Laws 1740, 1744 (current version at TEX. EST. CODEE § 121.001 (West Pamph.
2013)).
ANALYSIS
In paragraphs 2.03, 2.04, and 2.05 of each will, the testators specified that the beneficiaries’ receipt
of property was contingent upon the decedent’s spouse failing to survive the decedent by ninety
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days. These provisions constitute a disposition of property that is different from the statutory
requirement of survival for only 120 hours after the testator dies. Thus, the statute does not apply to
those provisions. Id. However, paragraph 2.02 in each will provides for certain bequests if both
Vencie and Melba “die in a common disaster or under circumstances making it impossible to
determine which of [them] died first.” This language indicates that their intent was to avoid the
bequest going to one of them if they died simultaneously or almost simultaneously. This is also the
intent of the statute, which prevents property from passing into the estate of a second person who is
already deceased only to be distributed immediately from that estate. See Glover v. Davis, 366 S.W.2d
227, 231 (Tex.1963).The Beards articulated their intent to provide for a disposition of some of their
property that was different from provisions of the statute but worded paragraph 2.02 in a manner
that is consistent with the Simultaneous Death Act. They could have used the same language in
paragraph 2.02 as they did in the other paragraphs if they wanted the same result. The trial court did
not err in its construction of the wills. We overrule Stephens’s second issue.
DISPOSITION
The trial court properly concluded that the Beards died in a common disaster and the Simultaneous
Death Act applies to paragraph 2.02 of each will.
We affirm the trial court’s judgment in each case.
3.3.4

Brain Death vs. Hearth Death

It is difficult to determine survival without a clear meaning of death. As the next case
indicates, the law often grapples with the concept of legal death.

In re Haymer, 450 N.E.2d 940 (Ill. App. 3d 1983)
RIZZI, Justice:
On October 28, 1982, Loyola University of Chicago, which owns and operates Foster G. McGaw
Hospital in Cook County, Illinois, sought a declaratory judgment that its patient, 7-month-old Alex
B. Haymer, was legally dead, thereby permitting the hospital to remove Alex B. Haymer from a
mechanical ventilation system. The child’s parents opposed the removal of the mechanical device, as
did the child’s guardian ad litem. Following an expedited hearing, the trial court entered an order on
November 4, 1982, which provided that the legal death of Alex B. Haymer occurred on October 23,
1982, the date when doctors determined that the child had suffered the total and irreversible
cessation of all functions of the entire brain. The order also authorized Foster G. McGaw Hospital,
Loyola University Medical Center, to discontinue the mechanical ventilation system connected to the
body of Alex B. Haymer. The trial court stayed the force and effect of its order for seven days to
give the parties an opportunity to have appellate review of the order before the mechanical
ventilation system was removed. The State of Illinois was permitted to intervene on the ground that
it had an interest in the investigation and prosecution of any deaths which may have been caused by
any criminal action in Cook County. The State objected to the stay on the basis that the
circumstances surrounding the alleged legal death of Alex B. Haymer were suspicious, and that the
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Medical Examiner of Cook County must perform an autopsy as soon as possible because, according
to the affidavit of the Medical Examiner of Cook County, “where brain death has occurred and the
subject is maintained on artificial breathing and circulatory apparatus, tissue deterioration and
destabilization occurs which may render it impossible to determine the cause of death * * *.” The
guardian ad litem appealed the order of the trial court and moved for an emergency stay. We stayed
the force and effect of the trial court’s order and set the case for oral argument on December 6,
1982. In the meantime, on November 28, 1982, Alex B. Haymer’s heart stopped functioning and the
mechanical ventilation system was disconnected. Oral argument on the merits of the case was heard
on February 16, 1983.
On appeal the parties contest whether Alex B. Haymer was legally dead on October 23, 1982, when
it was medically determined that he had sustained total brain death, or on November 28, 1982, when
his heart stopped functioning. We affirm the trial court’s order that Alex B. Haymer was legally dead
on October 23, 1982.
This case presents the issue of determining when death legally occurs in Illinois. Plainly, with the
scientific and medical advances of recent years, the general and traditional definition of death,
cessation of heartbeat, is no longer meaningful or factually accurate. In our present-day society,
many people continue to live after experiencing cardiac arrest, and cardiopulmonary by-pass
machines permit a patient’s heartbeat to cease for several hours with full clinical recovery after
resuscitation. See F. Plum & J. Posner, The Diagnosis of Stupor and Coma 313, 331 (3d ed. 1980);
Jacobson, Anderson & Speigel, Towards a Statutory Definition of Death in Illinois, 14 J. Mar. L. Rev. 701,
709 (1981). There has also been at least one instance where a permanent artificial heart has sustained
a human’s life for a relatively extended period of time. See Time, April 4, 1983, at 62.
In addition, the general common law definition of death, cessation of respiration and circulation, is
no longer acceptable by today’s standards. See Towards a Statutory Definition of Death in Illinois, 14 J.
Mar. L. Rev. at 701-13. To illustrate, in Sweet, Brain Death, 299 New Eng. J. of Med. 410-11 (1978),
the author, a neurosurgeon, states: “Indeed, it is clear that a person is not dead unless his brain is
dead. The time-honored criteria of stoppage of the heartbeat and circulation are indicative of death
only when they persist long enough for the brain to die.” See generally A. Guyton, Textbook of
Medical Physiology 342 (6th ed. 1981). Moreover, Illinois has enacted the Uniform Anatomical Gift
Act which states: “ ‘Death’ means for the purposes of the Act, the irreversible cessation of total
brain function, according to usual and customary standards of medical practice.” Ill.Rev.Stat.1981,
ch. 110 ½, par. 302(b). This definition of death, which is limited to the particular statute, is
significantly different from the general common law definition of death.
In order to bridge the gap between the past and present-day meanings of death, 29 states have
enacted statutes which have a definition of death for general application in their respective states.
These statutes fall into three categories: (1) total brain death; (2) total brain death or
cardiopulmonary death; and (3) total brain death only if artificial means of support prevent
determination of death by traditional means. What all these statutes have in common is their
recognition that total brain death is the death of the person.
Other states have judicially recognized that a person found to have total brain death is legally dead.
Thus, at least 34 states have now either legislatively or judicially recognized this precept. Moreover,
no case has been found in which total brain death has been rejected as being the death of the person
where the issue has been specifically raised. On this point, in A. Moraczewski & J. Showalter,
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Determination of Death 30 (1982), the authors state: “That courts might not accept [total] brain
death [as the death of the person] is of course theoretically possible. But the fact is that no court has
ever rejected it, and given its overwhelming acceptance, none is likely to do so.” Also, it has been
stated: “Legally, medically and morally, this country now generally accepts the concept of brain
death (although state laws defining death are still not completely uniform). Life support systems are
routinely turned off when brain activity has irreparably ceased, even though heartbeat and breathing
can be sustained artificially.” Who Lives, Who Dies? Making life’s final decision, Chicago Tribune, May 24,
1983, § 1, at 18, col. 1.
In the present case, the guardian ad litem contends that if total brain death is to be considered the
death of the person in Illinois, the change in the law should be made by the legislature. This
contention was addressed in In re Welfare of Bowman, 94 Wash.2d 407, 617 P.2d 731 (Wash.1980), one
of the leading cases in which total brain death was judicially recognized as the death of the person.
There, the court stated:
As was the case in Colorado and Massachusetts [where brain death was judicially
recognized], no statute in this state has been enacted to define what constitutes
death as posed by the facts now before us. It is both appropriate and proper,
therefore, that this court decide that question. 617 P.2d at 738.
Moreover, as the court stated in Lovato v. District Court, 198 Cole. 419, 601 P.2d 1072 (Colo. 1979) in
holding that a person is legally dead if he has sustained irreversible cessation of all functioning of the
total brain:
We recognize the authority of, and indeed encourage, the General Assembly to
pronounce statutorily the standards by which death is to be determined in
Colorado. We do not, however, believe that in the absence of legislative action
we are precluded from facing and resolving the legal issue of whether
irretrievable loss of brain function can be used as a means of detecting the
condition of death. Under the circumstances of this case we are not only entitled
to resolve the question, but have a duty to do so. To act otherwise would be to
close our eyes to the scientific and medical advances made worldwide in the past
two or three decades. 601 P.2d at 1081.
As in Bowman and Lovato, no statute in our state defines what constitutes death as posed by the facts
now before us. Our supreme court has held that the proper relationship between the legislature and
the judiciary is one of cooperation and assistance in examining and changing the common law to
conform with the ever-changing demands of the community. Alvis v. Ribar, 85 Ill.2d 1, 23, 52 Ill.
Dec. 23, 33, 421 N.E.2d 886, 896 (1981). When there is a gap in the common law that manifestly
should be bridged and the legislature has failed to take remedial action, it is the imperative duty of
the judiciary to reform the law to be responsive to the demands of society. Alvis, 85 Ill.2d at 23-24,
52 Ill.Dec. at 33, 421 N.E.2d at 896. For these reasons, we believe that it is both appropriate and
proper that we decide the issue that is presented in this case. See Bowman, 617 P.2d at 738; Lovato, 601
P.2d 1081; State v. Fierro, 124 Ariz. 182, 603 P.2d 74, 77 (Ariz. 1979).
In resolving the issue, we recognize the nearly unanimous consensus of the medical community that
when the whole brain no longer functions, the person is dead. See Determination of Death 23. In
addition, we take into account that the prevailing practice of the medical community nationwide is
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to regard total brain death as the death of the person. See Bowman, 617 P.2d at 733. We also
recognize and take into account that the Illinois General Assembly has stated, for purposes of the
Uniform Anatomical Gift Act, that death means the irreversible cessation of total brain function,
according to usual and customary standards of medical practice. Ill.Rev.Stat.1981, ch. 110 ½, par.
302(b). In this regard, we find it significant that the legislature’s definition of death under the
Uniform Anatomical Gift Act conforms to the consensus of the medical community that total brain
death is the death of the person, and that adoption of that definition of death in the present case will
conform the legal definition of death in Illinois to current medical standards.
Accordingly, we conclude that a person who has sustained irreversible cessation of total brain
function, according to usual and customary standards of medical practice, is legally dead. However,
we recognize that in most instances when a person has sustained irreversible cessation of circulatory
and respiratory functions according to usual and customary standards of medical practice, both the
medical profession and our society accept that the person is dead without the need to assess brain
functions directly. We see no need to change or interfere with this practice judicially. We therefore
hold that a person is legally dead if he or she has sustained either (1) irreversible cessation of total
brain function, according to usual and customary standards of medical practice, or (2) irreversible
cessation of circulatory and respiratory functions, according to usual and customary standards of
medical practice.
In the present case, Alex B. Haymer was 7 months old when he was at McGaw Hospital. He was
attached to a mechanical ventilation system which ventilated his lungs, caused his heart to continue
pumping and sustained some of his other purely biological functions.
Dr. Timothy B. Scarff, a neurosurgeon specializing in pediatric neurosurgery, testified during the
trial court hearing that he had examined Alex B. Haymer in the pediatric intensive care unit at the
hospital. His objective finding was that clinically, the child had suffered total, complete and
irreversible brain death. Subjectively, he found that the child did not respond to any kind of stimuli
and had no brain stem reflexes. Also, the child had no pupillary or other eye movement, and he was
not breathing by himself.
Scarff also testified that he ordered an EEG, or brain wave test, and a radioactive isotope blood flow
test. These tests showed that, in fact, there was no electrical activity in the brain and that there was
no flow of blood to any part of the brain. After 24 hours, Scarff repeated the EEG examination and
ordered an evoked response test of the brain stem. This second EEG test confirmed that there was
no electrical activity in the brain. The evoked response test confirmed that there was no activity in
the brain stem.
Scarff further testified that as of October 23, 1982, Alex B. Haymer had total and irreversible brain
death and that this diagnosis was confirmed by two other consultants. The diagnosis of brain death
applied to the entire brain. Also, Scarff testified that there are no recorded incidents of any person
meeting these criteria ever regaining any function whatsoever. Scarff testified that his diagnosis and
conclusions were made according to the usual and customary standards of medical practice. Scarff’s
testimony was uncontradicted.
Under the circumstances, we believe the record clearly establishes that on October 23, 1982, Alex B.
Haymer sustained an irreversible cessation of total brain function, according to usual and customary
standards of medical practice, and was legally dead as of that date.
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We next address the question of whether this case should be dismissed on the basis that it became
moot when Alex B. Haymer’s heart stopped functioning on November 28, 1982. If the case were to
be dismissed due to mootness, the date of death would remain in dispute. The trial court’s order
provides that the date of legal death was October 23, 1982, but circulation and respiration did not
cease until November 28, 1982, which is the same day that the heart stopped functioning. Thus, the
date of death to be recorded on the death certificate, a public record, is uncertain. Moreover, since it
is readily apparent that the general issue involved in the case is likely to recur, and the issue plainly
involves matters of public concern, we are not required to dismiss the case even though the issue
may be technically moot. See Johnny Bruce Co. v. City of Champaign, 24 Ill.App.3d 900, 905, 321 N.E.2d
469, 473 (1974); Lurie v. Village of Skokie, 64 Ill.App.3d 217, 226, 20 Ill.Dec. 911, 919, 380 N.E.2d
1120, 1128 (1978).
In addition, the case should not be dismissed as moot because the very urgency which moved those
in the medical profession, the county medical examiner and the state to press for prompt action here
is likely to recur, making it probable that similar cases arising in the future will likewise appear to be
or become technically moot by ordinary standards before they can be decided by a reviewing court.
See Wallace v. Labrenz, 411 Ill. 618, 623, 104 N.E.2d 769, 772 (1952). Evidence gained from
thousands of patients studied in many centers around the world indicates that a person attached to a
mechanical ventilation system who has met the brain death criteria would not be expected to
maintain a heartbeat for the period of time it would take for appellate review no matter how
expeditiously the appellate process proceeds. See The Diagnosis of Stupor and Coma 315; Roe v.
Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147, 161 (1973). Thus, the situation before us
is clearly a situation which is “capable of repetition, yet evading review.” Roe, 410 U.S. at 125, 93
S.Ct. at 713, 35 L.Ed.2d at 161. We therefore decide that this case should not be dismissed because
of mootness.
Accordingly, we conclude that on October 23, 1982, Alex B. Haymer sustained irreversible cessation
of total brain function, according to usual and customary standards of medical practice, and that he
was legally dead as of that date. The order of the circuit court is affirmed.
AFFIRMED.
3.4

Other Surviving Spousal Resources

The main purpose of this chapter has been to examine the steps the law takes to prevent
spousal disinheritance. In this section, I would like to briefly discuss two other approaches states
have taken to achieve that goal. The earliest forms of protection from spousal disinheritance
adopted in the United States were the common law doctrines of dower and curtesy. Dower gave a
surviving widow a lifetime interest in one-third of the property her husband acquired during their
marriage. Curtesy afforded a surviving widower slightly more protection because he was entitled to a
lifetime interest in all of the property his wife obtained while they were married. The intestacy
statutes of the majority of states and the Uniform Probate Code have abolished dower and curtesy.
However, a few states still retain the law of dower. In those states, dower applies to protect both
men and women. A few state legislatures have adopted the Uniform Probate Code recommendation
and modified their elective share statutes to consider the marital contributions of the parties
involved. Those legislatures have rejected the “one size fits all” approach in favor of permitting the
111

probate code to evaluate each estate based upon the unique circumstances of the parties involved.
This section also examines the other resources that may be available to the surviving spouse.
3.4.1. Social Security and Retirement Benefits
A surviving spouse is eligible to receive Social Security benefits if the decedent worked long
enough to qualify for benefits. Social Security usually pays a one-time death benefit of $255 to the
surviving spouse. The earliest a surviving spouse can receive benefits based upon age is 60. The
amount of benefits the surviving spouse is able to receive depends on the amount of taxed earnings,
the retirement age, and the number of work quarters. The surviving spouse may also have the right
to receive some of the deceased spouse’s retirement benefits. The federal Employment Retirement
Income Security Act of 1974 (ERISA) and the Retirement Equity Act of 1984 mandates that the
surviving spouse has an interest in the private pension plan if an employee dies before his or her
spouse.13
3.4.2. Homestead, Personal Property Set-Aside, and Family Allowance
When a person dies, the decedent’s surviving spouse and minor children have an interest in
remaining in the family home. The home usually has sentimental and/or economic value to the
surviving family members. Funeral costs and other debts may put the family home at risk. As a
result, most state legislatures have enacted statutes to enable the surviving spouse to retain the family
home free of the claims of the deceased spouse’s creditors.14 The provisions of state homestead laws
vary significantly.15
The surviving spouse may also have the right to receive a certain amount of the decedent’s
tangible personal property. That property typically includes household furniture, clothing, cars etc.
The surviving spouse has to satisfy specific conditions to obtain the right to receive this property. 16
UPC § 2-403 (1990, rev. 2008) limits the personal property set-aside to $15,000. That amount is
subject to the cost of living adjustment formula in § 1-109.
All of the states have statutes that permit the probate court to grant the surviving spouse an
allowance for maintenance and support. The surviving spouse may receive the maintenance
allowance for a specific period of time or until the probate case is closed. The provisions of UPC §
2-04 permits the surviving spouse to receive a reasonable allowance. If the estate does not have
enough resources to pay all of the decedent’s creditors, the surviving spouse can only receive the
allowance for one year. Once the estate is closed, maintenance payments to the surviving spouse will
cease. UPC § 2-405 gives the personal representative the authority to decide the amount of the
family allowance up to a specified limit without a court order; however, that decision is subject to
judicial review.

John H. Langbein, Susan J. Stabile, and Bruce A. Wolk, Pension and Employee Benefit Law 280-302 (5th ed. 2010).
See, e.g., 58 Okl. St. Ann. § 311 and § 313 (West 2016); 18 A.M.R.S.A. § 2-401 (West 2016); O. R.S. § 2-422 (West
2016).
15
See Mark E. Osborne, Asset Protection Trust Planning, SW037 ALI-CLE 97 (June 21-26, 2015)(discussing probate
homestead laws in various states).
16
In re Estate of Rhea, 257 S.W.3d 787 (TX 2008)(court set aside decedent’s wedding ring for his surviving spouse).
13
14

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3.4.3

Dower

Ohio Revised Code Ann. 2103.02
A spouse who has not relinquished or been barred from it shall be endowed of an estate for life in
one third of the real property of which the consort was seized as an estate of inheritance at any time
during the marriage. Such dower interest shall terminate upon the death of the consort except:
(A) To the extent that any such real property was conveyed by the deceased consort during the
marriage, the surviving spouse not having relinquished or been barred from dower therein;
(B) To the extent that any such real property during the marriage was encumbered by the deceased
consort by mortgage, judgment, lien except tax lien, or otherwise, or aliened by involuntary sale, the
surviving spouse not having relinquished or been barred from dower therein. If such real property
was encumbered or aliened prior to decease, the dower interest of the surviving spouse therein shall
be computed on the basis of the amount of the encumbrance at the time of the death of such
consort or at the time of such alienation, but not upon an amount exceeding the sale price of such
property.
In lieu of such dower interest which terminates pursuant to this section, a surviving spouse shall be
entitled to the distributive share provided by section 2105.06 of the Revised Code.
Dower interest shall terminate upon the granting of an absolute divorce in favor of or against such
spouse by a court of competent jurisdiction within or without this state.
Wherever dower is referred to in Chapters 2101 to 2131, inclusive, of the Revised Code, it means
the dower to which a spouse is entitled by this section.

Armstrong v. Armstrong, 715 N.E.2d 207 (Ohio App. Ct. 1998)
DICKINSON, J.
Plaintiff Irene Armstrong has appealed from a judgment of the Wayne County Probate Court by
which it determined that she was entitled to either a statutory distributive share of her late husband’s
estate or her dower interest in certain real property, but not both. She has argued that the trial court
incorrectly held that she must elect between the two. This court reverses the judgment of the trial
court. Because, prior to his death, Irene Armstrong’s late husband conveyed his one-half interest in
the marital residence without her consent, her dower interest in that property was not extinguished
by his death and she was entitled to both that dower interest and a statutory distributive share of the
rest of his estate.
I
Irene Armstrong was married to Norman Armstrong at the time of his death on September 1, 1995.
Less than a month before his death, apparently because the Armstrongs were in the process of a
divorce, Mr. Armstrong quitclaimed his one-half interest in the marital residence to his four adult
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children from a previous marriage. Irene Armstrong did not consent to the transfer, nor did she
waive her dower interest in the property.
On October 2, 1995, Mr. Armstrong’s executor, defendant Patricia Armstrong, filed an application
to probate Mr. Armstrong’s will. Because Mr. Armstrong’s last will, executed on July 31, 1995, made
no provision for Irene Armstrong, she elected to take against the will. The trial court held that
because Irene Armstrong elected to take her statutory distributive share of Mr. Armstrong’s estate,
she waived her dower interest in any of Mr. Armstrong’s real property. The trial court held that she
could elect to take either her dower interest or her statutory distributive share of the estate, but not
both. Ms. Armstrong timely appealed to this court.
II
Ms. Armstrong has asserted that the trial court misconstrued R.C. 21203.02, which provides:
“In lieu of such dower interest which terminates pursuant to this section, a surviving spouse shall be
entitled to the distributive share provided by section 2105.06 of the Revised Code.”
The trial court found that Irene Armstrong, as surviving spouse, was entitled to her statutory
distributive share of Mr. Armstrong’s estate “in lieu of” her dower interest in his real property. As
R.C. 21203.02 explicitly provides, however, the statutory distribution is in lieu of only that dower
interest “which terminates pursuant to this section.”
“[P]ursuant to this section” is explained by the paragraphs immediately preceding it, which provide:
“A spouse who has not relinquished or been barred from it shall be endowed of an estate for life in
one third of the real property of which the consort was seized as an estate of inheritance at any time
during the marriage. Such dower interest shall terminate upon the death of the consort except:
“(A) To the extent that any such real property was conveyed by the deceased consort during the
marriage, the surviving spouse not having relinquished or been barred from dower therein.”
Although dower rights normally terminate “upon the death of the consort,” an exception is made
for situations, such as here, in which the decedent, prior to his death, conveyed real property in
which the surviving spouse had not waived her dower interest. Because the trial court incorrectly
held that Irene Armstrong was required to elect between her dower interest in the real property
conveyed without her having relinquished her dower interest and her statutory distributive share of
the estate, the judgment of the trial court is reversed. She is entitled to a statutory distributive share
of Mr. Armstrong’s estate and her dower interest in his share of the marital residence. According to
R.C. 2103.03, Irene Armstrong’s dower interest is a life estate in one third of Mr. Armstrong’s onehalf interest in the marital residence. To this extent, Irene Armstrong’s assignment of error is
sustained.
III
Irene Armstrong’s assignment of error is sustained. The judgment of the trial court is reversed.
Judgment reversed and cause remanded.
114

3.4.4

Fractionalize Forced Share

In re Estate of Soard, 173 S.W.3d 22 (Tenn. App. Ct. 2005)
CHARLES D. SUSANO, JR.,
This case involves a dispute between a widow and the personal representative of her husband’s
estate. The parties differ as to the correct interpretation of Tenn. Code Ann. § 31-4-101 (2001), the
statute setting forth the criteria pursuant to which a surviving spouse’s elective share is computed.
The trial court adopted the estate’s construction of the statute and subtracted the widow’s exempt
property, homestead allowance, and year’s support allowance from the value of her percentage share
of the net estate in arriving at the elective-share amount to which she is entitled. We disagree with
the trial court’s interpretation of the statute. Accordingly, we reverse the judgment of that court.
I.
The parties filed a stipulation of material facts in the trial court. The stipulation provides, in
pertinent part, as follows:
Frank Soard died on the 14th day of July, 2003.
Frank Soard was survived by his wife, Sarah Soard, whom he had married on the 24th day of June,
1995.
The Parties agreed that pursuant to [Tenn. Code Ann.] § 30-2-209, Sarah Soard is entitled to
payment of $5,000.00 for Homestead.
The Parties agreed that pursuant to [Tenn. Code Ann.] § 30-2-102, Sarah Soard is entitled to [a]
Year’s Support in the amount of $13,656.00.
The Parties agreed that pursuant to [Tenn. Code Ann.] § 30-2-101, Sarah Soard is entitled to
$37,848.92 in Exempt Property.
Inasmuch as Frank and Sarah Soard had been married more than six years but less than nine years,
the Parties agreed that Sarah Soard was entitled to an Elective Share of Thirty Percent (30%) of the
net estate as set out in [Tenn. Code Ann.] § 31-4-101 (a).
Pursuant to [Tenn. Code Ann.] § 31-4-101(b), the Parties agreed to the following determination of
the net estate as of November 11, 2003, the Parties acknowledging, however, that the administrative
expenses are subject to increase based on attorneys fees and expenses incurred in this Elective Share
litigation:

115

Gross Estate

$872,253.32

Less:
ORNL Mortgage

$29,408.23

Funeral and Admin. Exp.

78,795.27

Exempt Property

37,848.92

Homestead

5,000.00

Year’s Support

13,656.00

164,708.42

Net Estate

$707,544.90

30% of Net Estate

$212,263.47

After determining Thirty Percent (30%) of the net estate as set out in [ Tenn. Code Ann.] § 31-4101(a) and (b), the Parties agreed that said maximum Elective Share amount is $212,263.47, but the
Parties disagreed as to how that amount is to be reduced pursuant to [Tenn. Code Ann.] § 31-4101(c). (Paragraph numbering in original omitted). Although not a part of the parties’ written
stipulation, it is abundantly clear from the record that Ms. Soard filed a petition for an elective share.
II.
Tenn. Code Ann. § 31-4-101, as it existed at the time of Mr. Soard’s death, i.e., July 14, 2003,
provides as follows:
(a)(1) The surviving spouse of an intestate decedent, or a surviving spouse who elects against a
decedent’s will, has a right of election, unless limited by subsection (c), to take an elective-share
amount equal to the value of the decedent’s net estate as defined in subsection (b), determined by
the length of time the surviving spouse and the decedent were married to each other, in
accordance with the following schedule:

116

If the decedent and the surviving spouse were married to The elective-share percentage is:
each other:
less than 3 years
10% of the net estate
3 years but less than 6 years

20% of the net estate

6 years but less than 9 years

30% of the net estate

9 years or more

40% of the net estate

(2) For purposes of determining the total number of years to be applied to the computation
provided in this subsection, the number of years persons are married to the same person shall be
combined. The years do not have to be consecutive, but may be separated by divorce. All years
married shall be counted toward the total number of years for purposes of this section.
(b) The value of the net estate includes all of the decedent’s real and personal property subject
to disposition under the provisions of the decedent’s will or the laws of intestate succession,
reduced by the following: secured debts to the extent that secured creditors are entitled to
realize on the applicable collateral, funeral and administration expenses, and award of exempt
property, homestead allowance and year’s support allowance.
(c) After the elective-share amount has been determined in accordance with the foregoing
subsections (a) and (b), the amount payable to the surviving spouse by the estate shall be reduced by the value
of all assets includable in the decedent’s gross estate which were transferred, or deemed transferred, to the surviving
spouse or which were for the benefit of the surviving spouse. For purposes hereof, the decedent’s gross
estate shall be determined by the court in the same manner as for inheritance tax purposes
pursuant to [Tenn. Code Ann.] §§ 67-8-301 et. seq., except that the value of any life estate or
trust for the lifetime benefit of the surviving spouse shall be actuarially determined.
(d) The elective-share amount payable to the surviving spouse is exempt from the claims of the
unsecured creditors of the decedent’s estate.
(Emphasis added). For ease of reference, we will hereinafter sometimes refer to this statute as “the
elective-share statute” or “the current elective-share statute.”
III.
The issue before us can be simply stated as follows:
Does the “reduction” language set forth in subsection (c) of Tenn. Code Ann. § 31-4-101—“the
amount payable to the surviving spouse by the estate shall be reduced by the value of all assets
includable in the decedent’s gross estate which were transferred, or deemed transferred, to the
surviving spouse or which were for the benefit of the surviving spouse”—contemplate the
deduction, from a surviving spouse’s percentage share of the net estate, of the value of the
surviving spouse’s exempt property, homestead allowance, and year’s support allowance?
117

The trial court held that “subsection (c) precisely states that all assets includable in the decedent’s
gross estate which are payable to the surviving spouse must be credited against the maximum
[e]lective [s]hare to determine the actual amount of the [e]lective [s[hare payable to the surviving
spouse.” In its order, the trial court concluded that
based [up]on the clear language of [Tenn. Code Ann.] § 31-4-101(c), the amounts
paid to the surviving spouse for [h]omestead, [y]ear’s [s]upport and [e]xempt
[p]roperty, as assets included in the decedent’s gross estate, are sums which must
be credited against the maximum amount available as an [e]lective [s]hare to
determine the amount “payable” to the surviving spouse.
As far as we can determine, this case presents a question of first impression.
Since the material facts are not in dispute, our de novo review is one of law and, hence, unburdened
by a presumption of correctness as to the trial court’s judgment. Southern Constructors, Inc. v. London
Co. Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001).
IV.
In the instant case, the parties stipulate that the gross estate is valued at $872,253.32. However, they
do not identify the component parts of the “gross estate.” Furthermore, there is nothing in the other
parts of the record which sets forth with specificity the items included within this concept. However,
since the “gross estate” stipulation reflects that it is made “[p]ursuant to [Tenn. Code Ann.] § 31-4101 (b),” we assume that this starting-point number of $872,253.32 comprises, in the words of the
aforesaid statutory provision, the value of “all of the decedent’s real and personal property subject to
disposition under the provisions of the decedent’s will or the laws of intestate succession.” 2 It is
clear that this language contemplates assets that pass in probate and not those that pass outside of
probate.
The parties further stipulate—again pursuant to Tenn. Code Ann. § 31-4-101 (b)—that the value of
the “net estate” is $707,544.90. They also agree that the maximum elective-share amount,
determined in accordance with subsections (a) and (b) of the elective-share statute, is $212,263.47.
Finally, they stipulate that subsection (c) of the elective-share statute requires that Ms. Soard’s
elective- share amount be reduced by the following items:
We now reach the point of the parties’ very sharp disagreement. The estate argues that, even though
Ms. Soard’s award of exempt property, homestead allowance, and year’s support allowance have
already been subtracted from the value of “the decedent’s real and personal property subject to
disposition under the provisions of the decedent’s will or the laws of intestate succession” as a part
of the computation of the net estate under subsection (b) of the elective-share statute, these three
items must be subtracted again, this time from the value of the widow’s percentage share of the net
estate, in order to arrive at the elective-share amount payable to the surviving spouse. The estate
maintains that the further deduction of these three statutory entitlements is mandated by subsection
(c) of the elective-share statute.
V.
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The effect of the parties’ disagreement in monetary terms is illustrated thusly:
Widow’s
Computation

Estate’s
Computation

Elective-share amount per subsections (a) & (b)

$212,263.47

$212,263.47

Less: Agreed-upon deductions

21,741.82

21,741.82

$190,521.65

$190,521.65

Less: Widow’s Exempt Property, Homestead, and Year’s N/A
Support

56,504.92

Elective- Share Amount due Widow

$134,016.73

$190,521.65

VI.
Ms. Soard argues that the critical language in subsection (c) of the elective-share statute pertains to
assets that are transferred to a surviving spouse outside the estate. She points to language in our case
of In re Estate of Morris, 104 S.W.2d 855 (Tenn.Ct.App.2002), which she claims is supportive of her
position. She also relies upon an illustration of how the elective-share statute is applied as found in
18 Albert W. Secor, Tennessee Practice: Tennessee Probate § 10.5 (2d ed.2002). She notes that in neither
authority is mention made of subtracting exempt property, homestead or the year’s support
allowance from the surviving spouse’s percentage share of the net estate.
The widow further argues that the estate’s interpretation of the statute runs afoul of well-established
rules of statutory construction. She contends that to construe the statute as requiring the deduction
twice of the aforesaid three items “would frustrate the purpose of the legislation.” She argues that the
interpretation placed on the statute by the estate renders this legislative enactment “absurd, unjust or
futile.” Finally, the widow argues that the double deduction of these three items “would not be
sensible, would work a manifest inconvenience, would produce an absurd result and would be
unjust.”
VII.
The estate counters by pointing out that the “reduction” concept embodied in subsection (c) of the
elective-share statute was not in the elective-share statute in effect prior to the amendments effective
January 1, 1998. Those amendments deleted the earlier version of the elective-share statute in its
entirety. The estate reads the language of subsection (c) broadly to mean, in the language of the
estate’s brief, that there is a credit against the surviving spouse’s percentage share of the net estate
119

for “all items in the gross estate that the spouse otherwise receives.” The estate notes that subsection
(c) of the elective-share statute expressly provides that the “gross estate,” as that concept is used in
that subsection, “shall be determined by the court in the same manner as for inheritance tax
purposes.” Tenn. Code Ann. § 31-4-101(c). The estate contends that exempt property, homestead
and a year’s support are not excluded from the gross estate for inheritance tax purposes. In support
of this argument, the estate relies upon the provisions of Tenn. Code Ann.] § 67-8-303 (2003), a
section of the inheritance tax statutory scheme describing the types of property subject to that tax.
As can be seen, the property which is subject to the tax is broadly stated and does not contain an
express exclusion for exempt property, homestead and a year’s support. The estate argues that
subsection (c) is unambiguous, and that our obligation is to enforce its provisions regardless of how
we feel about the justice of its application to the facts of the case at bar.
VIII.
In this case, we are called upon to interpret and apply the provisions of the elective-share statute. In
Eastman Chem. Co. v. Johnson, 151 S.W.3d 503 (Tenn.2004), the Supreme Court recited many of the
general principles pertaining to statutory construction:
Issues of statutory construction are questions of law that this Court reviews de novo without any
presumption of correctness.
Our duty in construing statutes is to ascertain and give effect to the intention and purpose of the
legislature. “‘Legislative intent is to be ascertained whenever possible from the natural and ordinary
meaning of the language used, without forced or subtle construction that would limit or extend the
meaning of the language.’ ”
When the statutory language is clear and unambiguous, we must apply its plain meaning in its
normal and accepted use, without a forced interpretation that would limit or expand the statute’s
application. Where an ambiguity exists, we must look to the entire statutory scheme and elsewhere
to ascertain the legislative intent and purpose. The statute must be construed in its entirety, and it
should be assumed that the legislature used each word purposely and that those words convey some
intent and have a meaning and a purpose. The background, purpose, and general circumstances
under which words are used in a statute must be considered, and it is improper to take a word or a
few words from its context and, with them isolated, attempt to determine their meaning.
Id. at 506-07 (citations omitted). In construing legislation, courts must harmonize, if possible, all
parts of the legislature’s enactment. See Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968)
(“A statute should be construed, if practicable, so that its component parts are consistent and
reasonable.... Inconsistent phrases are to be harmonized, if possible, so as to reach the legislative
intent.”). See also State v. Netto, 486 S.W.2d 725, 729 (Tenn.1972).
“A construction will be avoided, if possible, that would render one section of the act repugnant to
another. Or one that would produce an absurd result.” Tenn. Elec. Power Co. v. City of Chattanooga, 172
Tenn. 505, 114 S.W.2d 441, 444 (1937) (citations omitted). See also Turner v. Eslick, 146 Tenn. 236,
240 S.W. 786, 789 (1922).
“When the legislature enacts provisions of a uniform or model act without significant alteration, it
may be generally presumed to have adopted the expressed intention of the drafters of that uniform
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or model act. However, when the legislature makes significant departures from the text of that
uniform act, we must likewise presume that its departure was meant to express an intention different
from that manifested in the uniform act itself.” Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705, 713-14
(Tenn.2002)(citations omitted).
IX.
Our interpretation of the current version of the elective-share statute begins with a look back at the
prior version of that statute. Before January 1, 1998, the elective-share statute in Tennessee provided
as follows:
(a) A decedent’s surviving spouse has the right to elect to take an elective share. The elective share
is one third (1/3) of the decedent’s net estate as defined in subsection (b). The right to elect an
elective share is available to the surviving spouse of an intestate decedent and a testate decedent if
the surviving spouse elects against the decedent’s will. When the elective share is determined, it is
exempt from the unsecured debts of the decedent incurred after April 1, 1977. In determining the
elective share, it is not reduced by any estate or inheritance taxes.
(b) The net estate includes all of the decedent’s real and personal property subject to disposition
under the terms of the decedent’s will or the laws of intestate succession reduced by funeral and
administration expenses, homestead, exemptions and year’s support.
[Tenn. Code Ann.] § 31-4-101 (repealed effective January 1, 1998, by 1997 Tenn. Pub. Acts 426, §
17).
Under the earlier version of the statute, the method of calculating the surviving spouse’s elective
share was clear and relatively simple to apply. A surviving spouse had an absolute right “to elect to
take an elective share.” Once the election was made, the surviving spouse, regardless of the length of
his or her marriage to the decedent, was entitled to one-third of a relatively well-defined concept, i.e.,
the value of the real and personal property that passes under the decedent’s will or the laws of
intestate succession reduced by funeral and administration expenses, homestead, exempt property,
and a year’s support allowance. There were no further reductions.
In 1995, the 99th Tennessee General Assembly adopted House Joint Resolution No. 223 appointing
a Special Joint Commission whose charge was to “[s]tudy all aspects of the probate law in Tennessee
with a view towards adopting the Uniform Probate Code by revising, updating, and clarifying the
law so that it may give clear and consistent guidance to those using it and those affected by the law
in order to ensure, to the extent possible, the uniformity of probate law from any legal uncertainties
related to this important process; and [r]ecommend legislation to effect the above goals.”
(Numbering in original omitted). The commission was directed to file “the report of its findings and
any recommendations concerning legislation, with the 99th General Assembly no later than
December 15, 1995.”
As directed by the General Assembly, the commission filed a report setting forth its fact-finding
process, its decision-making process, and its recommendations. The report notes that the
commission found “little or no public support for the adoption of the Uniform Probate Code in its
entirety.” At another point in the report, the commission noted that it “decided that a wholesale
revision of the probate law at this time is unnecessary and that the Uniform Probate Code, which
121

also covers fields other than those typically considered to be of a probate nature, should not be
adopted as a whole for various reasons.”
The commission made 15 numbered recommendations, one of which is the following:
To modernize the elective share for surviving spouses to take into account the
length of the marriage and to redefine how the amount is ascertained.
Its recommendations were, in the language of the report, “incorporated into a draft of a legislative
bill which accompanie[d][the] report.”
By Chapter 426, Public Acts of 1997, the General Assembly, without discussion, adopted verbatim
that portion of the proposed legislation dealing with a surviving spouse’s elective share by deleting
the 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
all estates of decedents dying on or after that date.
The current version of the elective-share statute retains a few of the features of the old statute, i.e.,
the right to elect is still unconditional; the starting point of the calculation, once the percentage of
entitlement is established, is still “the decedent’s real and personal property subject to disposition
under the provisions of the decedent’s will or the laws of intestate succession”; the value of the
aforesaid concept is still reduced by funeral and administration expenses, homestead, exempt
property, and the year’s support, before the percentage of entitlement is applied to the balance; and
the surviving spouse’s entitlement under the statute is still not subject to the claims of the decedent’s
unsecured creditors.
While there are similarities between the two versions, there are striking differences, both in concept
and language.
The current version of the elective-share statute replaces the “one size fits all” approach of the old
statute—that all surviving spouses were previously entitled to a one-third elective share—with the
phased-in approach of the Uniform Probate Code (“the UPC”) under which the percentage amount
of a surviving spouse’s elective share increases as the length of the parties’ marriage increases. While
adopting the UPC’s approach, the current statute utilizes only four levels of percentage entitlement
compared to the 16 levels of the UPC. The current statute does adopt the UPC provision that all
years of marriage between the parties are counted even if those periods “may be separated by
divorce.”
While the current version of the elective-share statute retains the starting point of “the decedent’s
real and personal property subject to disposition under the provisions of the decedent’s will or the
laws of intestate succession,” the new version, in subsection (b), introduces a new deduction from
the concept: “secured debts to the extent that secured creditors are entitled to realize on the
applicable collateral.” Tenn. Code Ann.] § 31-4-101 (b).
As can be seen, the new version of the elective-share statute has significantly changed the method of
determining the surviving spouse’s elective-share percentage. Under the new approach, some
surviving spouses will receive more than the previous one-third share while others will receive less.
While this was a major change introduced by the amendments effective January 1, 1998, it is not the
one at issue in the case at bar. That “distinction” belongs to the commission’s recommendation as to
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“how the [elective-share] amount is ascertained.”
X.
In adopting House Joint Resolution No. 223, the General Assembly was influenced by the 1990
adoption of a new version of the UPC by the National Conference of Commissioners on Uniform
State Laws. The underlying theory behind the significant revisions to the elective share sections of
the UPC has been described thusly:
In constructing a new elective share, the drafters of the UPC applied two theories, both described in
the General Comment to the elective share section of the 1990 UPC. Unif. Prob. Code art. II, pt. 2,
gen. cmt. (1993). One theory, the marital partnership theory, views marriage as an economic
partnership to which both spouses contribute productive effort. This theory holds that each spouse
is entitled to one-half of the economic gains of the marriage. The other theory, the need-based
theory, holds that a decedent spouse should provide for the surviving spouse. A married couple’s
moral duties to one another, the expectations of the surviving spouse and public concern that the
surviving spouse not be left to depend on the state for support form the basis of this theory. Taken
together, the two theories establish a duty of spousal support that arises in marriage and continues to
some degree after death. Therefore, each spouse has a right to a share of the economic gains of both
spouses during the marriage.
To implement the need-based theory, the 1990 UPC creates a supplemental elective share of
$50,000. To the extent the elective share, calculated as a percentage of the augmented estate, is less
than $50,000, the surviving spouse is entitled to a supplemental elective share equal to the
difference. Stated another way, the minimum amount of a spouse’s elective share is $50,000. Because
the augmented estate includes the surviving spouse’s assets, the spouse will receive a supplemental
elective share only if his or her own assets are less than $50,000.
To implement the partnership theory, the 1990 UPC creates an augmented estate that includes
property owned and controlled by both spouses—probate property and property passing under will
substitutes. The guiding principle of giving each spouse one-half of the marital property made it
necessary to look at the assets owned by both spouses and not just property controlled by the
decedent. In contrast to the prior UPC, the 1990 UPC makes no exceptions for insurance [,]
annuities and pensions.
A difficulty faced by the drafters of the 1990 UPC is that not all property owned by spouses is
marital property. A spouse may have inherited property or acquired property before marriage. To
avoid a post-death determination of marital and separate property, the drafters devised a phased-in
elective share based on the length of the marriage. The goal of this provision was to approximate
increased marital sharing and the increased contribution to the acquisition of marital assets as a
marriage endures. The drafters concluded that “[b]ecause ease of administration and predictability of
result are prized features of the probate system,” a “mechanically determined approximation
system” makes sense. Unif. Prob. Code art. II, pt. 2, gen. cmt. (1993). Susan N. Gary, Share and Share
Alike? The UPC’s Elective Share, 12 Prob. & Prop. 18, 20 (1998). The author opined as follows
regarding the amendments to the Tennessee elective share statute effective January 1, 1998:
A law adopted in Tennessee in 1997 borrows concepts from the UPC and uses them to modify what is still
essentially a traditional elective share statute. The new Tennessee statute phases in the elective share
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percentage from 10% for less than three years of marriage to 40% for marriages lasting nine
years or more. The percentage is applied to the “net estate,” which the law defines as the
probate estate less certain secured debts, funeral and administration expenses and family
allowances. Property that the surviving spouse receives, whether probate or nonprobate property, reduces the
elective share. It appears that the law will charge disclaimed interests against the surviving
spouse because the statute refers to assets “which were transferred, or deemed transferred ... or
which were for the benefit of the surviving spouse.” Tenn. Code Ann.] § 31-4-101(c)(1997).
The Tennessee statute considers the augmented estate, determined by reference to the Tennessee inheritance tax
statute, only to reduce the surviving spouse’s share. If the decedent dies holding only nonprobate assets,
the value of the net estate, and thus the elective share, will be zero....
Id. at 22 (emphasis added).
It is clear to us that the changes to the Tennessee elective-share statute effective January 1, 1998,
while adopting some of the thrust of the 1990 changes to the UPC elective share provisions, depart
from the model act in significant and substantial ways. First, the 1997 amendments did not adopt
the UPC’s concept of a minimum elective share stated in monetary terms. It is clear that there is no
such monetary minimum share under the current version of our statute. Second, as pointed out in
the article just quoted, the current elective-share statute considers the concept of an “augmented
estate” to reduce the surviving spouse’s elective share, but continues to use the “net estate” concept
in defining the amount to which the surviving spouse’s percentage is applied.
The differences between the current version of the elective-share statute and the provisions of the
UPC relating to a surviving spouse’s elective share are so significant as to lead us to conclude that
the legislature’s departure “was meant to express an intention different from that manifested in the
uniform act itself.” Heirs of Ellis, 71 S.W.3d at 713-14. Therefore, even though it is clear that the
Special Joint Commission was directed by the General Assembly to study the probate laws of
Tennessee “with a view towards adopting the [UPC],” the commission and later the legislature itself
chose not to adopt the expansive and far-reaching language of the UPC as it pertains to the
methodology of computing the surviving spouse’s elective share, other than the adoption of the
theory of the UPC that the percentage share should be tied to the length of the parties’ marriage. We
conclude from this that the intention behind the UPC is of no particular help in determining
whether the language of subsection (c) of the elective share statute contemplates the reduction of
homestead, exempt property, and year’s support from the surviving spouse’s percentage share of the
net estate.
We have discussed the UPC extensively simply because of the General Assembly’s charge to the
commission. In view of this charge, we felt it essential to expressly point out that the legislature’s
1997 amendments evidence a general intention to go in a direction other than the one charted by the
UPC. For the purposes of illustration and comparison, we have attached a copy of the UPC
provisions addressing the surviving spouse’s elective share, as last amended in 1993, as an appendix
to this opinion. In the interest of brevity, we have omitted the official comments and illustrations.
XI.
The estate urges us to hold, as did the trial court, that the elective-share statute requires that the
surviving spouse’s statutory entitlements to homestead, exempt property, and a year’s support
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allowance be deducted twice as a part of the computation outlined in the elective share statute, i.e.,
first, in reducing the gross estate passing in probate to arrive at the net estate subject to the surviving
spouse’s percentage share, and, second, from the product of the multiplication of the net estate by
the surviving spouse’s percentage share. We agree with the widow in this case that such an
interpretation leads to an absurd result.
We find ambiguity in the wording of the statute. We note that while the legislature referred to the
three statutory entitlements by name in subsection (b), there is no such explicit reference in
subsection (c). The fact that the legislature referred to these statutory entitlements by name in
subsection (b) clearly shows that they were on the mind of that body when it adopted the 1997
amendments. Query: If the legislature had intended, in subsection (c), to mandate the deduction of
these same three items a second time in this continuing statutory computation, why did it not
expressly refer to them as it did in subsection (b)? In other words, if the legislature had intended to
include these items in the general language of subsection (c), why did it not refer to the decedent’s
“gross estate” as “the gross estate, including the surviving spouse’s homestead, exempt property, and a year’s
support ” or by the use of similar language?
The current version of the elective-share statute is hardly a model of clarity as far as the interplay
between subsections (b) and (c) is concerned. While the author quoted earlier in this opinion may be
right when she opines that our legislature “borrow[ed] concepts from the UPC and use[d] them to
modify what is still essentially a traditional elective[-]share statute,” it is clear to us that the legislature
rejected the comprehensive statutory scheme thought to be necessary by the Commissioners on
Uniform State Law to effectuate their desire to adopt a “marital partnership theory” and a “needbased theory” in the elective-share concept. By adopting bits and pieces from the earlier version of
the elective-share statute as well as concepts from the UPC and then “cutting and pasting” them
with some new language into a much shorter version of an elective-share statute, the legislature has
created more questions than answers. If the legislature has rejected the UPC’s dual theories
mentioned above, either in whole or in part, and we believe it has, what is the theory behind the
current version of the elective-share statute? What is the purpose or theory underlying the deduction
set forth in subsection (c)? We are left to ponder these and related questions. Assuming that the
estate is correct in its interpretation of subsection (c), what is the rationale behind the deduction of
the surviving spouse’s statutory entitlements from the maximum elective share after these very same
items have already been “cleared out” of the gross estate as a part of the computation leading to the
calculation of that same maximum elective-share amount?
We have concluded, and so hold, that the language of subsection (c) of the elective-share statute
cannot, consistent with the clear meaning of subsection (b), be read to include homestead, exempt
property, and a year’s support.
We believe the reason behind the deduction of the surviving spouse’s statutory entitlements from
the gross probate estate under subsection (b) is clear: it is to remove these items from the assets
passing in probate before the surviving spouse’s percentage is applied. The deduction at this point in
the computation ensures that the surviving spouse does not get these three statutory entitlements
plus a percentage of the same items. We believe the deduction at this stage of the statutory
computation was intended to avoid “double-dipping.” Thus, the deduction from the probatable
assets is reasonable and logical.
We cannot say the same for a subsequent deduction of the same items as a part of what is essentially
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a continuing statutory computation. Such a deduction, in the overall scheme of things, is illogical
and defies explanation. We recognize that it is the prerogative of the legislature to adopt such
legislation as it deems appropriate so long as it does not offend a provision of the United States
Constitution or the Tennessee Constitution. Certainly, it has the authority to enact legislation which
appears on its face to be illogical should it choose to do so. However, we believe that, had the
legislature intended to deduct these three items a second time in the same statutory computation, it
would have referred to them by name in subsection (c) just as it did in subsection (b).
If one of the purposes behind the current version of the elective-share statute is to reduce the
surviving spouse’s elective share to compensate for the surviving spouse’s receipt of homestead,
exempt property, and a year’s support, we believe the legislature could have accomplished this
objective in one of at least two ways. First, it could have—and we believe it did—construct a
computation that removes these items from the gross probatable estate before the surviving
spouse’s percentage share is applied. Second, had it chosen not to pursue the foregoing approach in
carrying out this presumed objective, it could have structured a computation providing that (a) the
percentage share is applied to the gross probatable estate without prior deduction for the statutory
entitlements and (b) the result of that computation would then be reduced by the statutory
entitlements. It does not make any sense, however, to do the first and then apply a significant
variation of the second, resulting in a deduction of these entitlements at the beginning of the
computation and then again after the maximum elective share has been determined.
We believe the estate’s interpretation is suspect for another reason. As can be seen from the
illustration on page six of this opinion, the widow, having chosen to pursue her right to homestead,
exempt property, and a year’s support, would receive, under the approach of the estate and the trial
court, an elective share of $134,016.73 plus her three statutory entitlements of $56,504.92 or a total
of $190,521.65. If she had chosen not to receive her statutory entitlements, her elective share would
have been calculated as follows:
Gross Estate

$872,253.32

Less:
ORNL Mortgage

$29,408.23

Funeral and Admin. Exp.

78,795.27

108,203.50

Net Estate

$764,049.82

30% of Net Estate

$229,214.94

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Thus, as the estate and the trial court interpreted the statute, the widow would receive more, i.e.,
$229,214.94, if she foregoes her three statutory entitlements than she would receive, i.e., $190,521.65,
if she claimed them. We refuse to read the statute in a way that attributes to the General Assembly
an intention to discourage a surviving spouse from pursuing homestead, exempt property, and a
year’s support, all entitlements granted by that same legislative body.
We have attempted to construe subsections (b) and (c) of the elective-share statute in a way that will
harmonize these two provisions. See Marsh, 424 S.W.2d at 196. We believe the only way they can be
harmonized is if subsection (c) is read so as not to include the surviving spouse’s homestead, exempt
property, and year’s support among the items to be deducted from the surviving spouse’s
percentage share of the net estate.
In reaching our decision, we expressly do not rely upon two of the authorities cited by the widow,
i.e., In re Estate of Morris, 104 S.W.3d 855 (Tenn.Ct.App.2002), and 18 Albert W. Secor, Tennessee
Practice: Tennessee Probate § 10.5 (2d ed.2002). We do not believe that either of these authorities is
implicated by the facts and issue now before us.
We recognize that the “reduction” concept embodied in subsection (c) was not in the elective-share
statute prior to January 1, 1998. We also recognize that the concept of the “value of all assets” as
found in subsection (c) of the elective-share statute is different from, and more expansive than, the
concept of the assets passing through probate as addressed in subsection (b). However, we are not
persuaded that the concept in subsection (c) is broad enough to compel, for a second time, the
deduction of the surviving spouse’s three statutory entitlements as a part of the statutory
computation of the amount of the surviving spouse’s elective share. We specifically hold that the
language of subsection (c) was not intended to include, and does not include, the statutory
entitlements set forth in Tenn. Code Ann. §§ 30-2-101 (2001), 30-2-102 (2001), and 30-2-209 (2001).
We believe a contrary holding with respect to the statutory entitlements would lead to an absurd
result. We decline to go there.
XII.
The judgment of the trial court is reversed. This case is remanded to the court below for further
proceedings. Costs on appeal are taxed to the Estate of Frank Soard.

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Chapter Four: The Intestacy System (Marital and Adopted Children)
4.1

Introduction

This chapter examines the inheritance rights of what I refer to as first tier children, marital
children and adopted children. Under the intestacy system, children born during the marriage are
heirs of their mothers and their fathers. These children receive preference over other classes of
children and they do not have to take additional steps to acquire the right to inherit. One argument
in favor of this preference for marital children is that they are third party beneficiaries of the marital
contract between their parents. In addition, it is reasonable that a man would want his marital
children to inherit his estate because those are the children with whom he usually has a relationship.
Under the marital presumption of paternity doctrine, children born during the marriage are the
children of a woman’s husband even if the child is a result of an extra-marital affair. The
presumption can be rebutted by DNA testing showing that the man and the child are not
genetically-related. However, some jurisdictions have adopted the best interests of the child marital
presumption. That system only permits the paternity of the child to be rebutted if it is in the child’s
best interests to do so. It is seldom in the child’s best interests to be declared a nonmarital child.
Adopted children are treated the same as marital children.
4.2

Marital Children

The only legal issue that may come up with regards to marital children pertain to children
born after the death of their mother’s husband.
4.2.1

Posthumously Born Children

It is well settled, that posthumously born children are treated the same as children that are
alive at the time that the testator dies. In older cases, courts allowed an unborn child to inherit if the
child was born within the gestation period without requiring the child to be born within a specific
time. Modern courts have recognized a rebuttable presumption that the generally accepted gestation
period is 280 days. Thus, if the child is born after the 280 days, the child or the child’s parent or
guardian has the burden of rebutting the presumption. Failure to rebut the presumption results in an
inability to inherit from the deceased man. However, according to the Uniform Parentage Act, the
court should recognize a rebuttable presumption that a child born to a woman within 300 days after
the death of her husband is a child of the deceased husband. Currently, most jurisdictions have
followed the UPC approach and conditioned the ability to inherit upon the child surviving his or her
father by a certain period of time. Therefore, a key issue with regards to the inheritance rights of the
posthumously born child is whether or not the child was born within the statutorily defined time
period.

Morrow v. Scott, 7 Ga. 535 (Ga. 1849)
MERRIWETHER, J.
Ewing T. Morrow died intestate, leaving a large estate. His next of kin, and distributees at law, were
his first cousins, of whom several were in life. Within the period of gestation after his death, Mary
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M. Morrow, another first cousin, was born, and filed a bill by her guardian, claiming a distributive
share. On demurrer, the Court dismissed the bill, and that decision is brought up for review.
WARNER, J.
The only question made by the record in this case for our judgment is, whether the first cousin of
the intestate, in ventre sa mere, at the time of his death, but born within the usual period of gestation
thereafter, is entitled to a distributive share of such intestate's estate.
We are of the opinion, both upon principle and authority, that a child in ventre sa mere, at the time of
the death of the intestate's ancestor, who is born within the usual period of gestation thereafter, is
entitled to a distributive share of such deceased intestate's estate. Blackstone states the rule to be that,
“An infant in ventre sa mere, or in the mother's womb, is supposed in law to be born, for many
purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have
a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards,
by such limitation, as if it were then actually born; and in this point, the Civil Law agrees with ours.” 1
Bl. Com. 130. 1 Roper on Legacies, 53.
Posthumous children, says Chancellor Kent, inherit, in all cases, in like manner as if they were born in
the lifetime of the intestate, and had survived him. This is the universal rule in this country. It is
equally the acknowledged principle in the English Law; and for all the beneficial purposes of heirship, a child in ventre
sa mere, is considered as absolutely born. 4 Kent's Com. 412. In Wallis vs. Hodson, Lord Hardwicke held that,
both by the rules of the Common Law, as well as by the Civil Law, a child in ventre sa mere, is in rerum
natura, and is as much one, as if born in the father's lifetime. 2 Atkyns, 116. In Doe vs. Clark, it was
held, that an infant in ventre sa mere is considered as born for all purposes which are for his benefit. 2
H. Blackstone, 399. In Hall vs. Hancock, the Court ruled, that in general, a child is to be considered as
in being, from the time of its conception, where it will be for the benefit of such child to be so
considered. 15 Pickering's Rep. 255. This rule is in accordance with the principles of justice, and we
have no disposition to innovate upon it, or create exceptions to it.
Let the judgment of the Court below be reversed.

Uniform Probate Code § 2-108 Afterborn Heirs
An individual in gestation at a particular time is treated as living at that time if the individual lives
120 hours or more after birth.
Class Discussion Tool One
Christine and Eric were married with two children, Polly and Diane. Diane was
developmentally disabled. Eric was diagnosed with brain cancer. Christine wanted to attempt to
have a son in memory of Eric. Eric stated that he did not want any more children because he had
only made financial preparations for two children. Eric’s cancer temporarily went into remission.
Christine and Eric resumed their sexual relationship. As a result, Christine became pregnant. Before
Christine could tell Eric about her condition, his cancer reoccurred. Eric died intestate two months
later. Should the unborn child be able to inherit from Eric’s estate?
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4.3

Adopted Children

Much of American inheritance law is based upon English common law. The English placed
a substantial value on blood relations. As a consequence, the common law of England did not give
legal recognition to the adoption by one person of the child of another person. Thus, that child did
not acquire the status of a child and heir of the person attempting to adopt him or her. In England,
the persons having the right to inherit were limited to legitimate children who were heirs by blood.
However, adoption existed as a part of the civil law of Rome and other European countries.
Adoption law, based upon the laws of France and Spain, was initially introduced into American
jurisprudence by the states of Texas and Louisiana. Eventually, several New England states enacted
adoption statutes. One of the first states to include adoption as a part of its common law was
Massachusetts. The requirements of Massachusetts adoption procedures were codified in the Mass.
Stat. of 1851.17 The push to recognize adoptions in America stemmed from the need to protect
neglected and abused children. Therefore, the concept of the “best interests of the child” was
developed as a part of American adoption law.18 Consequently, all of the states in the United States
and the District of Columbia currently have adoption statutes in place.
In the majority of jurisdictions, the adopted child is treated as the legal child of the adopting
parents once the court has entered the final adoption decree. As a result, the adopted child obtains
the right to inherit from the adoptive parents and from the adoptive parents’ relatives. Generally, the
court decree that finalizes the adoption ends the legal relationship between the birth parents and the
adopted child. Therefore, the adopted child does not retain the right to inherit from or through the
birth parents.19 However, the adoption by the spouse of a birth parent generally has no effect on the
right of a child to inherit from or through either birth parent.
Since adoption law is statutory and highly localized, adoption laws varies from state to state.
With regards to this legal issue, the states have taken several different approaches. Some states like
Alaska20, Idaho21, Illinois22 and Maine23 have enacted statutes that permit the adopted child to inherit
from his or her birth parents as long as that right is reserved in the adoption decree. Texas24and a
See Ross v. Ross, 129 Mass. 262-263 (1978).
Matter of Jarrett, 230 A.D. 2d 513 (N.Y.S. 2d 1997).
19 See e.g., Tenn. Ann. Code § 36-1-121.
20 Alaska Stat. §§ 25.23.130 (“A final decree of adoption relieves the birth parents of the adopted persons of all parental
rights and responsibilities, and, except as provided below, terminates all legal relationships between the adopted person
and the birth parents and other relatives of the adopted person, so that the adopted person thereafter is a stranger to the
former relatives for all purposes including inheritance, unless the decree of adoption specifically provided for
continuation of inheritance rights.”).
21 Idaho Code § 16-1509 (“Unless the decree of adoption otherwise provides, the natural parents of an adopted person
are relieved of all parental duties toward the adopted person, including the right of inheritance unless specifically
provided by will.”)
22 Ill. Cons. Stat. Tit. 755, § 5/2-4(b), (d) (“***”For purposes of inheritance from or through a natural parent, an adopted
child is not a child of a natural parent, nor is the child a descendant of a natural parent or of any lineal or collateral
kindred of a natural parent, unless ***The contrary intent is demonstrated by the terms of the instrument by clear and
convincing evidence.”).
23 Maine Ann. Stat. Tit. 18-A, §§ 9-105; 2-109 (“An adopted person retains the right to inherit from the adopted person’s
birth parents if the adoption decree so provides, as specified in § 2-109. If a natural parent wishes an adopted child to
inherit from the natural parents and their respective kin, the adoption decree must provide for that status.”).
24 Texas Prob. Code § 40; Fam. Code § 162.507 (“The natural parents of an adopted child shall not inherit form or
through said child, but said child shall inherit from and through its natural parents.”) Texas Prob. Code § 40 (“An
17
18

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few other states allow the adopted child to inherit from and through both his or her adoptive and
birth parents. In Colorado, if there are no other heirs, the adopted child may file a claim against the
estate of the birth parent within 90 days of the parent’s death.25 Pennsylvania permits an adopted
child to inherit from the estate of a birth relative, other than a birth parent, who has maintained a
family relationship with the adopted child.26
With regards to inheritance issues, two questions must be answered—Which adopted
children should have the opportunity to inherit? From whom should the adopted child be permitted
to inherit?. The litigation surrounding the answers to those questions involved the following issues:
(1) Whether the legally adopted child has the right to inherit from and through his or her birth
parents; (2) Whether the legally adopted child has the right to inherit from and through his or her
adoptive parents; (3) Whether the courts should use its equitable powers to permit a child who has
not been legally adopted to inherit from and through the intended adoptive parents; and (4)
Whether a child who was adopted as an adult should be permitted to inherit from and through his
adoptive parents.
4.3.1

Legal Adoption

McKinney’s D.R.L. § 117(b) Right to inherit from and through the biological parents
eliminated after adoption
(b) The rights of an adoptive child to inheritance and succession from and through his birth
parents shall terminate upon the making of the order of adoption except as hereinafter
provided.
The language contained in the above-cited statute is representative of the language found in
a majority of state adoption statutes. Once a competent court declares that a child has been legally
adopted, the legal relationship between that child and his or her birth parent(s) is severed. The basis
of having the ability to inherit from a parent who dies intestate is dependent upon the existence of a
parent-child relationship. As a result, once a child is adopted, he or she is not considered to be an
heir of his or her biological parent(s). As the next case illustrates, the child may lose the opportunity
to inherit from a parent even if that parent does not consent to the legal adoption.

Aldridge v. MIMS, 884 P.2d 817 (N.M. 1994)
BLACK, J.
Born out of wedlock, Steven Aldridge (Child) was adopted in 1978 by his maternal grandparents, but
consent to the adoption was not obtained from his natural father. The maternal grandmother
attested that the adoption petition did not contain any reference to the alleged natural father because
adopted child may, under the laws of descent and distribution, inherit from and through the adopting parents and their
relative, and the adopting parents and their family may inherit from and through such adopted child.”).
25 Colo. Rev. Stat. §§ 15-11-103(6)-(7); 15-11-114.
26 Pa. Cons. Stat. Tit. 20, § 2108 (“An adoption person shall not be considered as continuing to be the child of his or her
natural parents except in distributing the estate of a natural kin, other than the natural parent, who has maintained a
family relationship with the adopted person.”).

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he was very violent, and consequently the family was afraid to approach him either for consent to
adopt or to ask him to provide support for his child. When Child's alleged natural father died
intestate in 1992, Child filed a claim of heirship and a separate suit to establish paternity. The Estate
moved to dismiss Child's claim of heirship and paternity suit, and the district court granted the
motions to dismiss in both actions. Child appeals both dismissals, and we consolidated the cases on
appeal. We affirm.
I. Heirship
In dismissing the claim of heirship, the district court held, inter alia:
1. Steven Ray Aldridge is precluded from making this claim by reason of his adoption by Ray D.
Aldridge 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
been sufficient and complete in all respects under the law of New Mexico at such time; and
2. An adoptive child in New Mexico is precluded from inheriting from the estate of a natural father
even if paternity of the father is established after the adoption[.]
We conclude that both of these district court holdings correctly state the law.
Child's argument is that he should be able to prove Decedent's paternity so that he can inherit from
both his natural parents as well as his adoptive parents. Child argues that when the New Mexico
Legislature adopted the Uniform Probate Code (UPC) in 1975 it was “presumed to be aware of all
existing case law interpreting [NMSA 1978, Section 45-2-109 (Repl.Pamp.1989) ] and have intended
the same result.” Citing Stark v. Watson, 359 P.2d 191 (Okla.1961), Child concludes, “[a]ll cases at
that time held that Section 2-109 of the ‘UPC did not reveal a legislative intent to destroy the rights
of an adopted child to inherit from its natural parents.’ ”
The flaw in this argument is that under the UPC it is the law at the date of parent's death, not that in
effect at the time of adoption, which controls. See In re Estate of Holt, 95 N.M. 412, 413, 622 P.2d
1032, 1033 (1981); In re Estate of Mooney, 395 So.2d 608, 609 (Fla.Dist.Ct.App.1981). At the time of
the alleged father's death in 1992, the New Mexico courts had already established that, under the
UPC, an adopted child inherits through the adoptive, not the natural, parents.
The New Mexico Supreme Court interpreted Section 45-2-109 in In re Estate of Holt. In rejecting the
attempt of a child, who had been adopted by her stepfather, to inherit from her paternal
grandmother, who died intestate, our Supreme Court stated:
The clear meaning of Section 45-2-109 is that an adoption severs the legal rights and
privileges between the adopted child and the natural parents. From the point of adoption on,
the adopted child belongs to the adoptive parents as if he or she had been their natural child,
with the same rights of a natural child, all to the exclusion of the natural parents.
Child next urges us to, in essence, overrule Holt. Not only are we not at liberty to overrule recent
Supreme Court precedent, State v. Wilson, 867 P.2d 1175, 1177-78 (N.M. 1994), but additionally we
believe the Holt Court followed the accepted interpretation of UPC Section 2-109.
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II. Constitutionality
Child next argues that if the intestate succession statute can be read to divest children who are
adopted by their grandparents from the right to inherit from both natural parents, and not so for
children adopted by their stepparents, then the statute is unconstitutional as applied. However, Child
provides only policy reasons and no legal precedent to support this contention. Issues raised in
briefs that are unsupported by legal authority need not be considered. Moreover, this issue has also
been raised under the UPC and has been resolved adversely to Child's position. The Florida Court
of Appeals rejected a very similar equal protection challenge to the UPC plan of substituting the
adoptive parents for the natural parents, saying:
Appellant has furnished us with an abundance of statistical information regarding the
increase of illegitimacy and the social reasons why § 732.108 [Florida's equivalent of § 45-2109] should be declared unconstitutional. This argument can best be made before the
Legislature which has the obligation to decide the social consequences of legislation.
However, the statistics do nothing to convince us that there has been a denial of equal
protection. The section simply provides that an adopted person is not a lineal descendant of
his natural parent. Other provisions in the section provide that he is a lineal descendant of
his adopting parents, the consequence of which afford him full and equal protection to
inherit from his adoptive parents.
As in the Florida case, Child's arguments may be appropriate for a debate on public policy in the
legislature, but they are an inadequate foundation for a constitutional challenge to the intestacy
provisions of the UPC.
III. Adoption
Child argues that the 1978 adoption is void because the 1979 United States Supreme Court decision
in Caban v. Mohammed, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), “declared all state statutes which
required an illegitimate child's mother, but not his father, to consent to his adoption, to be
unconstitutional as violative of the equal protection clause.” This is a misreading of Caban. Caban
recognized a natural father's interest in the adoption of his children only where he has acknowledged
his paternity and developed a relationship with the child. Moreover, Child's adoption decree was
entered in March 1978; Caban was not filed until more than a year later in April 1979. Even if Child's
alleged father had acknowledged and established a relationship with Child, Caban has not been
applied retroactively.
The New Mexico adoption statutes in effect at the time of Child's 1978 adoption may be found at
NMSA 1953, Sections 22-2-20 to -46 (Supp.1975). Section 22-2-33(C) read:
Subject to the disposition of an appeal, after one [1] year from the date of entry of a
judgment of adoption, the judgment of adoption cannot be questioned by any person, including
the petitioner, in any manner, upon any ground, including fraud, misrepresentation or failure to
give any required notice. (Emphasis added.)
The statute was emphatic and inclusive in limiting both the persons and grounds on which an
adoption could be set aside. Thus, it may be reasonably assumed that the legislature chose a policy
that would impose permanence on the adoptive relationship. We conclude that Child's adoption was
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final and its validity cannot now be attacked.
IV. Paternity
Finally, Child argues that even as a lawfully adopted child he may proceed with a paternity suit
against his natural father's estate. Paternity suits are not recognized as a common-law cause of action
in New Mexico. See State ex rel. Human Servs. v. Aguirre, 797 P.2d 317, 319 (N.M., Ct.App.1990).
Moreover, the primary purpose of paternity suits is to insure the putative father meets his obligation
to help support the child. Id. As previously noted, the legal effect of an order of adoption is to cause
the adopted child to be treated as if it were the natural child of the adoptive parents and thus
terminate the natural parent's duty to support such child. See In re Estate of Holt, 622 P.2d at 1034. It
therefore follows that if the adoption of a child is approved prior to the commencement of a
paternity suit, the paternity suit will not lie.
V. Conclusion
The district court properly considered the adoption decree and correctly concluded Child is legally
precluded from challenging his adoption at this late date. Since a lawfully adopted child does not
inherit from its natural parents, the district court's order dismissing the claim of heirship is affirmed,
and since a lawfully adopted child does not have a right to support from his natural parents, the
district court's order dismissing the paternity suit is affirmed.

Ellis v. West, 971 So. 2d 20 (Ala. 2007)
WOODALL, Justice.
Betty Ellis, as personal representative of the estate of her sister, Annie Laurie Pace, deceased,
appeals from a judgment for Joshua Adam Falls West and Jacob Wayne Falls West (“the children”),
by and through their adoptive mother and next friend, Agnes West, on the children's petition
asserting a claim in Pace's estate. We reverse and remand with directions.
The facts are undisputed. The decedent, Annie Laurie Pace, was the maternal great-grandmother of the
children, being the mother of Robert Pace, deceased, who was the father of Kelly Pace, who married
Ricky Falls in 1990. In April 1993, Kelly Pace Falls died, survived by her husband and the children.
On November 16, 1995, the children were adopted by their paternal grandmother, Agnes West, and her
husband, Albert West, the children's step grandfather.
Annie Laurie Pace died intestate on July 25, 2005, and letters of administration were issued to her
sister, Betty Ellis. Subsequently, the children, by and through Agnes West, filed in the probate court
a “petition for determination of heirship,” alleging that they are the “only surviving lineal
descendants of Annie Laurie Pace.” The petition sought an “order determining that [the children]
are the heirs and next-of-kin of [Annie Pace], and are entitled to inherit the estate of [Annie Pace].”
The proceeding was removed to the Jefferson Circuit Court.
On July 5, 2006, Ellis moved for a summary judgment, arguing that the children's petition had no
merit, based on Ala. Code 1975, § 43-8-48(1), which provides:

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“If, for purposes of intestate succession, a relationship of parent and child must be established
to determine succession by, through, or from a person:
“(1) An adopted person is the child of an adopting parent and not of the natural parents except that
adoption of a child by the spouse of a natural parent has no effect on the right of the child to
inherit from or through either natural parent....”
(Emphasis added.)
On August 30, 2006, the trial court entered an order granting the children's petition. The order
stated, in pertinent part:
“The court hereby finds that the undisputed facts show that Kelly Pace Falls, the biological
mother of [the children], died prior to the adoption of the children; therefore, there was no
termination of parental rights nor relinquishment of parental rights by Kelly Pace Falls. The
minor 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
the children consented to the adoption of the children by his mother and stepfather.
“The court finds further that § 43-8-48, Code of Alabama, is not to be so strictly construed
as to disinherit these minor children from the biological mother's grandmother. There are no
reported Alabama cases applying strict construction of this statute such that these children would not inherit
under the law of intestate succession under the facts of this case. Their deceased biological mother, the
granddaughter of the decedent, Annie Laurie Pace, did not consent to the adoption of her
children, nor were her parental rights terminated. Neither does this court provide for such a
result.”
(Emphasis added.)
Subsequently, Ellis appealed. On appeal, Ellis contends that the trial court failed to apply § 43-8-48
according to its plain meaning, and that it erred in failing to do so.
Our resolution of this dispute is governed by well-established principles of statutory construction
and separation of powers. It is axiomatic that “ ‘[w]ords used in a statute must be given their natural,
plain, ordinary, and commonly understood meaning, and where plain language is used a court is
bound to interpret that language to mean exactly what it says.’ ” University of South Alabama v. Progressive
Ins. Co., 904 So.2d 1242, 1246 (Ala.2004) (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602
So.2d 344, 346 (Ala.1992)) (emphasis added). Moreover, “ ‘[i]f the language of the statute is
unambiguous, then there is no room for judicial construction and the clearly expressed intent of the
legislature must be given effect.’ ” Id. (emphasis added).
We see no ambiguity in § 43-8-48(1). It clearly states that an adopted child is not the child of its
natural parents “for purposes of intestate succession.” The single exception is where the adoptive
parent is “spouse of a natural parent.” It is undisputed that the exception does not apply in this case.
The 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
the judgment on that basis. Children's brief, at 10-17. This, we may not do.
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“‘[Section] 43 of the Constitution of Alabama of 1901 mandates the separation of judicial power
from legislative power and condemns the usurpation of the power of one branch of government by
the other.’ ” Sears Termite & Pest Control, Inc. v. Robinson, 883 So.2d 153, 157 (Ala.2003) (quoting Ex
parte Thicklin, 824 So.2d 723, 732 (Ala.2002)). “ ‘The authority to declare public policy is reserved to the
Legislature, subject to limits imposed by the Constitution.’ ” Id. (emphasis added). See Rogers v. City of
Mobile, 277 Ala. 261, 281, 169 So.2d 282, 302 (1964); Almon v. Morgan County, 245 Ala. 241, 245, 16
So.2d 511, 514 (1944) (“[T]he Legislature prescribes the State's policy; the courts do not.”).
“Our laws of descent and distributions are of statutory creation, and ... the status of parent and child
has always influenced legislative action in determining what shall become of the property of those
who die intestate....” Prince v. Prince, 188 Ala. 559, 560, 66 So. 27, 28 (1914) (emphasis added). See also
Woodliff v. Dunlap, 187 Ala. 255, 259, 65 So. 936, 938 (1914) (“[T]he subjects of descent and
distribution are of statutory control....”).
The legislature has unambiguously declared it to be the policy of this State that, except in one
instance immaterial to this case, an adoption severs a child from its natural lineage for purposes of
intestate succession. The wisdom or folly of that declaration is of no legitimate concern to the
judiciary. Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944). The
judiciary's duty is merely to enforce the policy as declared in § 43-8-48(1).
For these reasons, the judgment of the trial court is reversed, and this cause is remanded with
directions to enter a judgment in favor of Ellis.
Right to inherit from biological parent retained after adoption
In some jurisdictions, the adopted child may retain the right to inherit from his or her
biological parents. However, as the next case indicates, that right may be impacted by subsequent
adoptions.

In re Estate of Moore, 25 P3d 305 (Oklahoma 2001)
BUETTNER, J.
Two children were adopted by George and Sylvia Moore. The couple divorced. After Sylvia Moore's
marriage to Ronald Fore, George Moore relinquished his parental rights over the two children,
paving the way for Fore's adoption of them. George Moore later died, leaving his estate to his
mother, Francis Eugenia Moore. Francis Eugenia Moore subsequently died intestate. The trial court
awarded her estate to the two children who had been adopted by George Moore and later adopted
by Fore. We hold that children may inherit through intestate succession through their natural
parents and their adoptive parents, but that when there are successive adoptions, the last adoption
precludes rights of inheritance through intestate succession through previous adoptive parents.
The facts in this case were stipulated:
1. Sylvia R. Fore is the adoptive mother of Wesley Jerome Fore, born January 26, 1965, and
Christopher Merrell Fore, born September 23, 1965.
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2. Sylvia R. Fore married George Clifford Moore June 16, 1962.
3. George Clifford Moore is the son of the Decedent, Francis Eugenia Moore and Clifford W.
Moore, also deceased.
4. George Clifford Moore and Sylvia R. Fore adopted Christopher Fore and Wesley Fore shortly
after the births of said children in adoption proceedings in Orleans Parish, Louisiana.
5. Sylvia R. Fore and George Clifford Moore were divorced by Decree of Divorce entered on
January 31, 1967 by the District Court of Carter County, Oklahoma, in Case No. D-4344.
6. Sylvia R. Fore, subsequent to her divorce from George Clifford Moore, married Ronald Wilson
Fore on or about December 31, 1969.
7. On May 7, 1970, by Decree of Adoption entered by the District Court of Carter County,
Oklahoma, Ronald Wilson Fore, husband of Sylvia R. Fore, adopted Christopher Fore and Wesley
Fore, in Case No. A-70-18.
8. The estate of George Clifford Moore was probated in the District Court of Kay County,
Oklahoma, Case No. P-91-141. By Decree of Distribution dated October 13, 1992, the District
Court of Kay County, Oklahoma distributed to Francis Eugenia Moore the entire estate of George
Clifford Moore.
9. Francis Eugenia Moore died intestate on September 8, 1999 a resident of Stillwater, Payne
County, Oklahoma.
The issue for the trial court, and for the appellate court, was whether “an adopted child may inherit
from an adoptive parent whose parental rights are relinquished and terminated when said child has
been subsequently adopted by a third party.” The trial court relied on 10 O.S. Supp.1995 § 70061.3(A), which states that termination of parental rights does not affect the right of the child to
inherit from the parent; 10 O.S. Supp.1998 § 7505-6.5, which abolished differences between natural
and adopted children; and finally relied on Matter of the Estate of Flowers, 1993 OK 19, 848 P.2d 1146,
which held that pursuant to the plain language of the statute, that termination of parental rights does
not affect the right of the child to inherit from the parent.
“Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary
independent and non-deferential authority to reexamine a trial court's legal rulings.” Kluver v.
Weatherford Hospital Authority, 1993 OK 85, 859 P.2d 1081, 1084.
We note first that the “right of an adopted child to inherit is decided by the law in force at the death
of the testatrix/testator not the date of adoption.” Flowers, Id. at 1151. In this case, the law in effect
September 8, 1999, is the law to apply.
Despite subsequent amendments, 10 O.S. Supp.1995 § 7006-1.3 has consistently stated that
termination of parental rights does not “in any way affect the right of the child to inherit from the
parent.” Matter of the Estate of Flowers, 1993 OK 19, 848 P.2d 1146, 1151. This statement is consistent
with the laws of descent and distribution, as well as those concerning adoption.
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With respect to intestate succession, “[i]f the decedent leave no surviving husband or wife, but
leaves issue, the whole estate goes to such issue,....” A child adopted away from his natural parents
remains “issue.” Citing 1 Am.Jur. 656, § 57, the court in Stark v. Watson, 1961 OK 17, 359 P.2d 191,
193 stated:
Consanguinity is so fundamental in Statutes of Descent and Distribution that it may only be
ignored by construction when courts are forced so to do, either by the express terms of the
statute or by inexorable implication. An adopted child is, in a legal sense the child both of its
natural and of its adopting parents, and is not, because of the adoption, deprived of its rights
of inheritance from its natural parents, unless the statute expressly so provides.
The Starks court then held that Oklahoma has “no statutory provisions limiting an adopted child's
statutory rights to inherit from its natural parent.” Id. The effect of a final decree of adoption gives
the adopted child and adoptive parents rights to inherit through each other in accordance with the
laws of descent and distribution, but there is no excluding of the child's right to inherit from his
natural parent. 10 O.S. Supp.1998 § 7505-6.5.
However, a subsequent adoption will terminate any inheritance rights a child might have had from a
previous adoption. In In re Talley's Estate, 1941 OK 1, 109 P.2d 495, a teen-age boy was adopted by
the Talleys. When the boy was nineteen, he was adopted by his natural father. In holding that the
boy could not inherit from the Talleys' estate (the first adoptive family), the court stated:
neither in theory, practice nor common sense was petitioner the adopted son of his first
adoptive parents after his second adoption. Having lost that relationship (a thing which by
parallel he could not entirely do, at least as to blood, as to his natural parent) there was no
longer any predicate upon which to base the conclusion that he would thereafter inherit
from his first adoptive parents the same as if he had been their natural son. Id. at 498.
We hold that a child may inherit through his natural parents, even after he is adopted away from his
natural family. And although an adopted child and adoptive parents enjoy all the rights of descent
and distribution as if they were biological parents and child, a subsequent adoption will cut off any
right the previous adoption might have conferred on either. If the rule in Talley's case is to be
changed, it will be up to the Oklahoma Supreme Court.
For these reasons, we reverse the order of the trial court and remand the matter with directions to
proceed in a manner consistent with this opinion.

In re Estate of Wulf, 167 N.W.2d 181 (Neb. 1969)
NEWTON, J.
This is an appeal from an order determining heirship in an intestate estate. The question presented is
whether or not an adopted child remains an heir of a natural parent who died subsequent to the
adoption proceeding. The trial court adjudged that an adopted child may inherit from her natural
parents notwithstanding the adoption. We affirm the judgment of the trial court.

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Fred Wulf died intestate April 30, 1967, a resident of Washington County, Nebraska. He was the
father of four children. Two of his children, Freddie Wulf and Anna Marie Wulf, were the issue of
his first marriage. The remaining children, Eggert Wulf and Earl Wulf, were the issue of his second
marriage. As an infant, Anna Marie Wulf, during the last illness of her mother, was placed in the care
of Mr. and Mrs. Carl Reeh, Mrs. Reeh being a sister of Fred Wulf. She was ultimately adopted by
Mr. and Mrs. Reeh and subsequently married, her present name being Anna Marie Ibsen.
Throughout his lifetime, her father, Fred Wulf, maintained close contact with his daughter. Her
adoptive father, Carl Reeh, died testate and she shared in his estate. Subsequently the adoptive
mother, Mrs. Carl Reeh, died intestate and Anna Marie Ibsen inherited the remaining estate of her
parents by adoption.
Adoption was unknown to the common law, is a creature of statute, and rights accruing or sacrificed
by reason of adoption are to be determined by reference to the statutes of the state having
jurisdiction. There are certain general rules on the subject which are almost uniformly recognized.
‘Consanguinity is fundamental in statutes of descent and distribution, and the right of a child to
inherit from his natural parents or to share in the intestate personalty of their estates is affected by
the legal adoption of the child by another only to the extent that such rights are taken away or
limited by the terms of the applicable statutes of adoption and descent and distribution, or by
necessary implication therefrom. To state the rule another way, an adopted child is, in a legal sense,
the child both of its natural and of its adopting parents, and is not, because of the adoption,
deprived of its right of inheritance from its natural parents, unless the statute expressly so provides.’
The statutes of the various states pertaining to adoption and the position in which the parties are left
subsequent to adoption vary greatly. In some, the right of the adopted child to inherit from its
natural parents is specifically preserved. In others, this right is specifically barred. In many others,
the statutes do not pass upon the subject by specific language and such statutes remain subject to
interpretation. This appears to be true with reference to the Uniform Adoption Code which has
been adopted by the State of Oklahoma. In Stark v. Watson (Okl.), 359 P.2d 191, it was held that the
Uniform Adoption Code did not reveal a legislative intent to destroy the rights of an adopted child
to inherit from its natural parents. Ordinarily, ‘A statute which includes as a principal or dominant
feature the establishing of the child as an heir of the adopting parent, without making reference to
the inheritance from natural parents, is not likely to be construed as depriving the child of that
inheritance.’
The statutes of Nebraska do not specifically refer to this question of inheritance by an adopted child
from its natural parents. Nevertheless, it would appear that the legislative intent is reasonably clear.
The Nebraska statutes provide: ‘After a decree of adoption is entered, the usual relation of parent
and child and all the rights, duties and other legal consequences of the natural relation of child and
parent shall thereafter exist between such adopted child and the person or persons adopting such
child and his, her or their kindred.’ Section 43-110, R.R.S.1943. ‘Except as provided in section 43106.01, after a decree of adoption has been entered, the natural parents of the adopted child shall be
relieved of all parental duties toward and all responsibilities for such child and have no rights over
such adopted child or to his or her property by descent and distribution.’ Section 43-111,
R.R.S.1943. ‘When a child shall have been relinquished by written instrument, as provided by
sections 43-104 and 43-106, to the Department of Public Welfare or to a licensed child placement
agency and the agency has, in writing, accepted full responsibility for the child, the person so
relinquishing shall be relieved of all parental duties toward and all responsibilities for such child and
have no rights over such child. Nothing contained in this section shall impair the right of such child
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to inherit.’ (Emphasis supplied.) Section 43-106.01, R.R.S.1943.
It will be noted that although all rights of the natural parent over his or her adopted child, including
the right to inherit from such child, are clearly barred by the statute, the statute does not likewise bar
the right of the adopted child to inherit from its natural parents. Since the Legislature here dealt in
part with the inheritable rights of the parties concerned and specifically outlined them in part, the
failure to restrict the right of the child to inherit from its natural parents cannot be deemed an
oversight but rather an act evidencing the legislative intent to preserve this right in the child. This
legislative intent is even more clearly evidenced by the language contained in section 43-106.01,
R.R.S.1943, which provides in substance that a child who has been relinquished for adoption to the
Department of Public Welfare or to a licensed child placement agency shall not thereby have its
right to inherit impaired. To assume that this preservation of the right of the adopted child to inherit
from its natural parents was to be limited only to those cases involving relinquishments of the type
referred to in the statute would be to strain the credulity of any reasonable person.
It may be of interest to consider the construction placed upon the Utah statute on adoption which is
to all intents and purposes identical with section 43-111, R.R.S.1943. The court stated in In re Benner's
Estate, 109 Utah 172, 166 P.2d 257: ‘The statute does not in express terms say that an adopted child
may not inherit from its natural parents, nor do we think that it is a necessary implication from the
fact that the legislature has said that natural parents lose all rights over its child when it is adopted,
nor from the fact that the child becomes the legal child of its adopting parent and sustains all the
rights and is subject to all of the duties of that relationship. The more reasonable import of these
statutes is that they were enacted for the benefit of the adopted child and to define the relationship
between it and its adopting and natural parents insofar as the custody and control of the child is
concerned. We cannot say it is a necessary implication from the language used by the legislature that
it intended the adopted child to lose certain rights which it otherwise would have. By being born to
its natural parents its status was established under our succession statutes and it became entitled to
inherit from them.’ Other somewhat similar statutes have been likewise construed. See, In re
Roderick's Estate, 291 P. 325; In re Ballantine's Estate (N.D.), 81 N.W.2d 259.
This is a case of first impression in Nebraska. We are convinced that it was the legislative intent to
permit an adoptive child to inherit from its natural parents and that the judgment of the district
court is correct. The judgment of the district court is affirmed.
Affirmed.
The right to inherit from two lines

Uniform Probate Code § 2-113
An individual who is related to the decedent through two lines of relationship is entitled to only a
single share based on the relationship that would entitle the individual to the larger share.

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Jenkins v. Jenkins, 990 So. 2d 807 (Miss. App. Ct. 2008)
BARNES, J.
Willena Jenkins, administratrix of the estate of her daughter, Janice Jenkins, appeals the judgment of
the Chancery Court of Pike County, which determined that one of Janice's heirs at law, DeMarcus
Deante Jenkins, would inherit two shares of the estate. The chancellor found DeMarcus entitled to
inherit as both an adopted sibling of the decedent, Janice, and as the surviving child of Janice's
predeceased sister. We find no error and affirm.
Summary of Facts and Procedural History
On January 20, 2007, Janice died intestate in Pike County without a spouse, surviving children, or
more remote lineal descendants. Janice had been disabled since March 1999 due to an alleged
medical malpractice incident. Since that time, she had been in a persistent vegetative state. A lawsuit
over the matter was settled, resulting in a large part of the estate at issue.
At the time of her death, Janice was a ward under a pending conservatorship proceeding in the
Chancery Court of Pike County. A decree was entered converting the conservatorship to an
administration of Janice's estate and appointing Willena as the administratrix. During the course of
the administration of the estate, Willena filed a petition for adjudication of heirship to determine
Janice's heirs at law. Proper notice was given to all of Janice's possible heirs. On May 29, 2007, a
hearing was held on the petition. The chancery court adjudicated the following individuals to be
Janice's heirs-at-law: (1) Willena Jenkins, living mother; (2) Edward Jenkins, Jr., living father; (3)
Glenn Edward Jenkins, living brother; (4) Linda Faye Jenkins Adams, living sister; (5) Lisa Michelle
Jenkins, living sister; (6) John Ellis Jenkins, living brother; (7) Shirley Rosetta Jenkins, living sister by
adoption; and (8) DeMarcus Deante Jenkins, living minor brother by adoption. However, one of
Janice's sisters, Stephanie Ann Jenkins, had predeceased her. Stephanie left one living descendant,
her minor son and natural child, DeMarcus. However, subsequent to his mother's death, on April
18, 1997, DeMarcus was lawfully adopted by his grandparents, Willena and Edward. According to
the parties' stipulation of facts, the adoption decree did not preclude or limit the right of DeMarcus
to inherit from the estate of his mother, Stephanie.
Also on May 29, 2007, Willena filed a petition for allowance of certain claims and other relief.
Within the petition, Willena requested the chancery court adjudicate the apportionment of the estate
as it pertains to DeMarcus because of the unusual situation that had arisen. On the one hand, under
the applicable statute regarding intestate succession, each of the enumerated heirs would receive a
one-eighth share of Janice's estate. Therefore, DeMarcus would be entitled to inherit the share of his
deceased mother, Stephanie. On the other hand, as a result of his adoption by Willena and Edward,
DeMarcus would also be entitled to inherit as Janice's adopted brother. Thus, Willena specifically
requested the chancellor to determine if DeMarcus would inherit one one-eighth share of the estate
or if DeMarcus would inherit two one-ninth shares of the estate.
On June 21, 2007, a hearing was held on the petition, and a final judgment was entered regarding
DeMarcus's shares. The chancellor found that Janice's heirs at law would each receive a one-ninth
share of her estate, with the exception of DeMarcus, who would receive two one-ninth shares. The
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chancellor duly noted “the apparent inequity that is resulting” from her judgment but she stated the
matter warranted strict statutory construction. Willena subsequently appealed this determination.
Standard of Review
Whether DeMarcus should receive one or two shares of Janice's estate is a question of law. This
Court reviews questions of law de novo. Estate of Yount v. McKnight, 845 So.2d 724, 726
(Miss.Ct.App.2003) (citing Estate of Jones v. Howell, 687 So.2d 1171, 1174 (Miss.1996)).
Discussion
Whether The Chancery Court Erred In Determining That DeMarcus Was Entitled To Two
Shares of Janice’s Net Estate
This case requires that we analyze the statutory framework surrounding the unique factual
circumstances, which are undisputed. Both parties agree that the two determinative statutes are
Mississippi Code Annotated section 91-1-3 (Rev.2004), which deals with intestate succession of real
property, and Mississippi Code Annotated section 93-17-13 (Supp.2007), which relates the effect of
adoption on inheritance. However, the parties disagree on the interpretation and outcome of these
two statutes when read together.
Section 91-1-3 provides in relevant part that when an individual dies intestate, the following occurs:
When there shall not be a child or children of the intestate nor descendants of such children,
then to the brothers and sisters and father and mother of the intestate and the descendants
of such brothers and sisters in equal parts, the descendants of a sister or brother of the
intestate to have in equal parts among them their deceased parent's share.
Miss. Code Ann. § 91-1-3. DeMarcus's mother, Stephanie, was the decedent Janice's sister. This
statute preserves the right of DeMarcus to inherit his deceased mother's portion of Janice's estate, as
his mother's sole descendant. Thus, under this statute, DeMarcus would receive an equal share of
Janice's net estate, also divided among Janice's other heirs at law.
The other applicable statute, section 93-17-13 states in part that:
The final decree [of adoption] shall adjudicate, in addition to such other provisions as may
be found by the court to be proper for the protection of the interests of the child; and its
effect, unless otherwise specifically provided, shall be that (a) the child shall inherit from and
through the adopting parents and shall likewise inherit from the other children of the adopting parents to the
same extent and under the same conditions as provided for the inheritance between brothers and sisters of the
full blood by the laws of descent and distribution of the State of Mississippi....
Miss. Code Ann. § 93-17-13 (emphasis added). This section clearly provides that DeMarcus, as the
adopted son of Janice's mother and father (his natural grandparents), would be treated as Janice's
adopted brother for inheritance purposes. Because the adoption at issue occurred between related
family members, an unusual situation arises, as DeMarcus occupies two positions for inheritance
purposes: as the sole heir to his mother's share of Janice's estate through the statutory right of
representation, and as Janice's adopted sibling.
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Case law in Mississippi is also clear that, in the absence of a statute or decree to the contrary, an
adoptive child inherits from both natural and adoptive parents. Sledge v. Floyd, 139 Miss. 398, 407-08,
104 So. 163, 165 (1925) (adoption statute not “intended to deprive children of their rights to inherit
from their natural parents and blood relatives”; adopted child held entitled to portion of natural
grandfather's estate). In the more recent authority, Alack v. Phelps, 230 So.2d 789, 793 (Miss.1970),
the Mississippi Supreme Court has continued to hold that Mississippi's adoption statutes do not
terminate the right of the child to inherit from his natural parents. See also Warren v. Foster, 450 So.2d
786, 787 (Miss.1984) (holding that the right of an adoptive child to inherit from both natural and
adoptive parents remains pursuant to section 93-17-13). The Alack court notes this holding is in
accordance with the clear intent of the Legislature, stating:
While the effect of a final decree of adoption is that the natural parent or parents will not
inherit by or through the child, and all parental rights are terminated, Mississippi's adoption law
does not state in any shape, form or fashion that the right of the child to inherit from its natural parents is
terminated. We think the intent of the legislature is clear; they intended for the child to
continue to inherit from his or her natural parents.
Alack, 230 So.2d at 792-93 (emphasis added) (citing Sledge, 139 Miss. at 408, 104 So. at 165; 2 C.J.S.
Adoption of Children § 63(c) (1936) (in absence of statute to the contrary, adopted child “still inherits
from or through his blood relatives, or his natural parents”)); see also Robert A. Weems, Wills and
Administration of Estates in Mississippi, § 1:9 (3rd ed.2003) (as statute is silent regarding child's
right to inherit from “natural family and their kindred[,] ... the right to inherit that the child had prior
to the adoption remains intact”). The public policy behind continuing to allow adoptive children to
inherit from their natural parents is “to protect minor children from losing their birthright without
consent or knowledge. The tendency of the courts is to construe adoption statutes so as to benefit
the child.” Estate of Yount, 845 So. 2d at 727.
Additionally, Alack pronounces that since adoption statutes are in derogation of the common law,
they are to be strictly construed. Alack, 230 So.2d at 793.
Willena bases her argument on rules of statutory construction. She cites the axiom that when two
statutes encompass the same subject matter, they must be read together, along with the legislative
intent. Wilbourn v. Hobson, 608 So.2d 1187, 1191 (Miss.1992). The majority of Willena's argument,
however, relies on the doctrine in pari materia. This doctrine of statutory construction states that if a
statute is ambiguous, the court must resolve the ambiguity by interpreting the statute consistently
with other statutes on the same or similar subject matter. State ex rel. Hood v. Madison County, 873
So.2d 85, 90 (Miss.2004). Accordingly, Willena claims that Mississippi's intestate succession statute,
section 91-1-3, should be construed in pari materia with the adoption statute, section 93-17-13. To
utilize this doctrine, the legislative intent as a whole must be derived from the statutes at issue, as the
inconsistencies of one statute may be resolved by looking at another statute on the same subject.
Wilbourn, 608 So.2d at 1191. Willena concludes that legislation on the same subject matter must be
harmonized to fit into the dominate policy of their subject matter, citing Andrews v. Waste Control,
Inc., 409 So.2d 707, 713 (Miss.1982).
Willena contends that the legislative intent of section 93-17-13 is to elevate the adopted child to the
same level as the natural child, but not to raise the adoptive child higher than the natural child. The
ultimate effect of the chancellor's ruling, Willena claims, goes further than the Legislature intended
143

and has the effect of penalizing the other heirs at law. Willena argues that the better analysis is to
have DeMarcus inherit, under the laws of descent and distribution, from Janice solely as the adopted
brother of Janice. Willena explains this will protect the right of DeMarcus as an adoptive child
toward his adoptive family. Further, she claims that the rights of DeMarcus as an adopted brother
have superseded his rights as a descendant of his deceased mother-Janice's natural sister.
We are not persuaded by Willena's arguments. We agree with the chancellor that strict statutory
construction-giving full effect to both statutes-is necessary in this situation, even though it results in
DeMarcus's receiving a greater share than the other heirs of Janice. It is clear that DeMarcus has the
right to inherit pursuant to both section 91-1-3 and section 93-17-13. It is the norm that every
adoptee may inherit under both of these statutes, and in fact, it is statutorily required. This case has
an unusual outcome only because the adoptive parents and the natural parent are related. We find no
instance where Mississippi's inheritance statutes force the heir to choose under which statute he will
inherit, as Willena advocates. In the absence of a legislative enactment which states otherwise,
DeMarcus may inherit as both an adopted sibling of Janice and as the son of Janice's natural sister,
Stephanie.
In response to Willena's arguments on statutory construction, we find that it is the unusual factual
circumstance of the case which leads to the unusual legal result, not inconsistencies between the
statutes themselves. The two statutes are not in conflict or ambiguous, as required in order to apply
the doctrine of in pari materia. Therefore, “harmonizing” the statutes to produce a more logical
outcome is improper. Even if we were to interpret the statutes in pari materia, when we examine the
legislative intent of similar statutes, we find the chancellor's ruling proper. As Alack states regarding
Mississippi's adoption statutes, “the legislative intent is clear; they intended for the child to continue
to inherit from his or her natural parents.” Alack, 230 So.2d at 793. This clearly expressed legislative
intent is in direct conflict with Willena's proposed solution, which is to ignore DeMarcus's birthright
position as the heir to his mother's share of the estate and allow him to inherit only as the decedent's
adopted brother. The adoption statute clearly does not terminate the right of the adopted child to
inherit from his or her natural parent or blood relative. Alternatively, ignoring DeMarcus's adoptive
status flies in the face of the legislative intent as well, because the adoption statutes were created to
protect the child. Even though, in this unique instance, because the adopted parents are related to
the natural parent, the “protection” places the “adopted,” but also related, child in a higher position
than the other related heirs at law, it is well established in Mississippi that adoption statutes must be
strictly construed, as they are in derogation of the common law. Alack, 230 So.2d at 793.
As for Willena's claims that DeMarcus's inheriting two shares of the estate is inequitable, we find
that any other result would contradict the legislative policy established through the adoption statute
to protect the inheritance rights of adopted children. In this special circumstance, where the
adoptive parents are related to the adopted child and to one of the child's natural parents, any
perceived inequity of a dual inheritance could be eliminated by limiting the adopted child's right to
inherit from the adoptive kindred in the final adoption decree. See Miss. Code Ann. § 93-17-13
(providing that the final decree of adoption shall adjudicate that the child shall inherit from and
through the adopting kindred “unless otherwise specifically provided”).
Finally, we find it unnecessary to distinguish the case law from other jurisdictions that Willena cites
that have allowed or disallowed dual inheritances in a variety of situations. The determinative law of
this case is statutory and specific to Mississippi.
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Conclusion
Based on the foregoing reasons, we find the chancellor did not err in ruling that DeMarcus is
entitled to two one-ninth shares of Janice's estate. Accordingly, we affirm the judgment of the
Chancery Court of Pike County.
The Judgment of the Chancery Court of Pike County is Affirmed.
Notes and Questions
1. In the majority jurisdictions, after a child is adopted, the court severs the relationship between that
child and the child’s birth parents. Since a parent-child relationship no longer exists, the child does
not have the right to inherit from the birth parents. See Matter of Estate of Jank, 521 N.W.2d 162 (Wis.
App. 1994).
2. Eventually, in stranger adoption cases, the identity of the birth parents was withheld from the
adopted child. The purpose of that was to protect the privacy of the adopted parents and the birth
parents. That also enables the child to be part of the new family unit. See Elizabeth J. Samuels, The
Idea of Adoption: An Inquiry Into the History of Adult Adoptee Access to Birth Records, 53 Rutgers L. Rev.
367 (Winter 2001).
3. From a public policy perspective, what are the reasons to prevent the adopted child from
inheriting from the biological parents? A child’s biological grandparents are not a part of the
adoption process. Why does it make sense to prevent the child from inheriting from his or her
biological grandparents?
4. What would be the outcome of the Jenkins case in a UPC jurisdiction? Is the approach set forth in
UPC § 2-113 better than the one utilized by the court in the Jenkins case?
4.3.2

Equitable Adoption

Right to inherit from the intended adoptive parents
It is clear that a child who is legally adopted has a right to inherit from his or her adopted
parents. In order for the adoption to be legal, the parties must comply with the mandates of the
adoption statute. Nonetheless, courts have exercised their equitable powers to recognize informal
arrangements that have the attributes of adoptions. These situations are referred to as virtual or
equitable adoptions. An equitably adopted child acquires the right to inherit from the person who
informally adopts him or her.
In order to establish the existence of an equitable adoption, the child must prove the
following elements: (1) an agreement to adopt between the birth parents and alleged adoptive
parents; (2) performance by the birth parents of the child in giving custody; (3) performance by the
child by living in the home of the alleged adoptive parents; (4) partial performance by the alleged
adoptive parents in taking the child into their home and treating the child as their own child; and (5)
intestacy of the alleged adoptive parents. Once a competent court decides that a child has been
equitably adopted, that child has the right to inherit from the intended adoptive parents.
145

O’Neal vs. Wilkes, 439 S.E.2d 490 (Ga. 1994)
FLETCHER, J.
In this virtual adoption action, a jury found that appellant Hattie O'Neal had been virtually adopted
by the decedent, Roswell Cook. On post-trial motions, the court granted a judgment
notwithstanding the verdict to appellee Firmon Wilkes, as administrator of Cook's estate, on the
ground that the paternal aunt who allegedly entered into the adoption contract with Cook had no
legal authority to do so. We have reviewed the record and conclude that the court correctly
determined that there was no valid contract to adopt.
O'Neal was born out of wedlock in 1949 and raised by her mother, Bessie Broughton, until her
mother's death in 1957. At no time did O'Neal's biological father recognize O'Neal as his daughter,
take any action to legitimize her, or provide support to her or her mother. O'Neal testified that she
first met her biological father in 1970.
For four years after her mother's death, O'Neal lived in New York City with her maternal aunt,
Ethel Campbell. In 1961, Ms. Campbell brought O'Neal to Savannah, Georgia, and surrendered
physical custody of O'Neal to a woman identified only as Louise who was known to want a
daughter. Shortly thereafter, Louise determined she could not care for O'Neal and took her to the
Savannah home of Estelle Page, the sister of O'Neal's biological father. After a short time with Page,
Roswell Cook and his wife came to Savannah from their Riceboro, Georgia home to pick up
O'Neal. Page testified that she had heard that the Cooks wanted a daughter and after telling them
about O'Neal, they came for her.
Although O'Neal was never statutorily adopted by Cook, he raised her and provided for her
education and she resided with him until her marriage in 1975. While she never took the last name
of Cook, he referred to her as his daughter and, later, identified her children as his grandchildren.
In November 1991, Cook died intestate. The appellee, Firmon Wilkes, was appointed as
administrator of Cook's estate and refused to recognize O'Neal's asserted interest in the estate. In
December 1991, O'Neal filed a petition in equity asking the court to declare a virtual adoption,
thereby entitling her to the estate property she would have inherited if she were Cook's statutorily
adopted child.
1. The first essential of a contract for adoption is that it be made between persons competent to
contract for the disposition of the child. Winder v. Winder, 218 Ga. 409, 128 S.E.2d 56 (1962); Rucker
v. Moore, 186 Ga. 747, 748, 199 S.E. 106 (1938). A successful plaintiff must also prove:
Some showing of an agreement between the natural and adoptive parents, performance by
the natural parents of the child in giving up custody, performance by the child by living in
the home of the adoptive parents, partial performance by the foster parents in taking the
child into the home and treating [it] as their child, and ... the intestacy of the foster parent.
Williams v. Murray, 239 Ga. 276, 236 S.E.2d 624 (1977), quoting Habecker v. Young, 474 F.2d 1229,
1230 (5th Cir.1973). The only issue on this appeal is whether the court correctly determined that
146

Page was without authority to contract for O'Neal's adoption.
2. O'Neal argues that Page, a paternal aunt with physical custody of her, had authority to contract
for her adoption and, even if she was without such authority, any person with the legal right to
contract for the adoption, be they O'Neal's biological father or maternal aunts or uncles, ratified the
adoption contract by failing to object.
As a preliminary matter, we agree with O'Neal that although her biological father was living at the
time the adoption contract was allegedly entered into, his consent to the contract was not necessary
as he never recognized or legitimized her or provided for her support in any manner. See Williams,
239 Ga. 276, 236 S.E.2d 624 (mother alone may contract for adoption where the father has lost
parental control or abandoned the child); OCGA § 19-7-25, Code 1933, § 74-203 (only mother of
child born out of wedlock may exercise parental power over the child unless legitimized by the
father); see also OCGA § 19-8-10 (parent not entitled to notice of petition of adoption where parent
has abandoned the child). What is less clear are the rights and obligations acquired by Page by virtue
of her physical custody of O'Neal after her mother's death.
3. The Georgia Code defines a “legal custodian” as a person to whom legal custody has been given
by court order and who has the right to physical custody of the child and to determine the nature of
the care and treatment of the child and the duty to provide for the care, protection, training, and
education and the physical, mental, and moral welfare of the child. OCGA § 15-11-43, Code 1933, §
24A-2901. A legal custodian does not have the right to consent to the adoption of a child, as this
right is specifically retained by one with greater rights over the child, a child's parent or guardian.
OCGA § 15-11-43, Code 1933, § 24A-2901 (rights of a legal custodian are subject to the remaining
rights and duties of the child's parents or guardian); Skipper v. Smith, 239 Ga. 854, 238 S.E.2d 917
(1977) (right to consent to adoption is a residual right retained by a parent notwithstanding the
transfer of legal custody of the child to another person); Jackson v. Anglin, 193 Ga. 737, 738, 19
S.E.2d 914 (1942)(parent retains exclusive authority to consent to adoption although child is placed
in temporary custody of another); Carey v. Phillips, 137 Ga. App. 619, 624, 224 S.E.2d 870 (1976)
(parent's consent is required for adoption of child although child is in physical custody of another).
O'Neal concedes that, after her mother's death, no guardianship petition was filed by her relatives.
Nor is there any evidence that any person petitioned to be appointed as her legal custodian.
Accordingly, the obligation to care and provide for O'Neal, undertaken first by Campbell, and later
by Page, was not a legal obligation but a familial obligation resulting in a custodial relationship
properly characterized as something less than that of a legal custodian. Such a relationship carried
with it no authority to contract for O'Neal's adoption. See Skipper, 239 Ga. at 856, 238 S.E.2d 917.
While we sympathize with O'Neal's plight, we conclude that Page had no authority to enter into the
adoption contract with Cook and the contract, therefore, was invalid.
4. Because O'Neal's relatives did not have the legal authority to enter into a contract for her
adoption, their alleged ratification of the adoption contract was of no legal effect and the court did
not err in granting a judgment notwithstanding the verdict in favor of the appellee. See Foster v.
Cheek, 212 Ga. 821, 96 S.E.2d 545 (1957) (adoption contract made between persons not competent
to contract for child's adoption specifically enforceable where the parent with parental power over
the child acquiesced in and ratified the adoption contract).
Judgment affirmed.
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SEARS-COLLINS, J., dissenting.
I disagree with the majority's holding that O'Neal's claim for equitable adoption is defeated by the
fact that her paternal aunt was not a person designated by law as one having the authority to consent
to O’Neal’s adoption.
1. In Crawford v. Wilson, 139 Ga. 654, 658, 78 S.E. 30 (1913), the doctrine of equitable or virtual
adoption was recognized for the first time in Georgia. Relying on the equitable principle that “equity
considers that done which ought to have been done,” id. at 659, 78 S.E. 30; see OCGA § 23-1-8, we
held that “an agreement to adopt a child, so as to constitute the child an heir at law on the death of
the person adopting, performed on the part of the child, is enforceable upon the death of the person
adopting the child as to property which is undisposed of by will,” * id. We held that although the
death of the adopting parents precluded a literal enforcement of the contract, equity would “enforce
the contract by decreeing that the child is entitled to the fruits of a legal adoption.” Id. In Crawford,
we noted that the full performance of the agreement by the child was sufficient to overcome an
objection that the agreement was unenforceable because it violated the statute of frauds. Id. 139 Ga.
at 658, 78 S.E. 30. We further held that
[w]here one takes an infant into his home upon a promise to adopt such as his own child,
and the child performs all the duties growing out of the substituted relationship of parent
and child, rendering years of service, companionship, and obedience to the foster parent,
upon the faith that such foster parent stands in loco parentis, and that upon his death the
child will sustain the legal relationship to his estate of a natural child, there is equitable
reason that the child may appeal to a court of equity to consummate, so far as it may be
possible, the foster parent's omission of duty in the matter of formal adoption. [Id. at 660, 78
S.E. 30.]
Although the majority correctly states the current rule in Georgia that a contract to adopt may not
be specifically enforced unless the contract was entered by a person with the legal authority to
consent to the adoption of the child, Crawford did not expressly establish such a requirement, and I
think the cases cited by the majority that have established this requirement are in error.
Instead, I would hold that where a child has fully performed the alleged contract over the course of
many years or a lifetime and can sufficiently establish the existence of the contract to adopt, equity
should enforce the contract over the objection of the adopting parents' heirs that the contract is
unenforceable because the person who consented to the adoption did not have the legal authority to
do so. Several reasons support this conclusion.
First, in such cases, the adopting parents and probably their heirs know of the defect in the contract
and yet voice no objection to the contract while the child fully performs the contract and the
adopting parents reap the benefits thereof. Under these circumstances, to hold that the contract is
unenforceable after the child has performed is to permit a virtual fraud upon the child and should
not be countenanced in equity. Equity does not permit such action with regard to contracts that are
initially unenforceable because they violate the statute of frauds, but instead recognizes that the full
performance of the contract negates its initial unenforceability and renders it enforceable in equity.
Harp v. Bacon, 222 Ga. 478, 482-83 (1), 150 S.E.2d 655 (1966).
148

Moreover, the purpose of requiring consent by a person with the legal authority to consent to an
adoption, where such a person exists, is to protect that person, the child, and the adopting parents.
However, as equitable adoption cases do not arise until the death of the adopting parents, the
interests of the person with the consent to adopt and of the adopting parents are not in jeopardy.
On the other hand, the interests of the child are unfairly and inequitably harmed by insisting upon
the requirement that a person with the consent to adopt had to have been a party to the contract.
That this legal requirement is held against the child is particularly inequitable because the child, the
course of whose life is forever changed by such contracts, was unable to act to insure the validity of
the contract when the contract was made.
Furthermore, where there is no person with the legal authority to consent to the adoption, such as in
the present case, the only reason to insist that a person be appointed the child's legal guardian before
agreeing to the contract to adopt would be for the protection of the child. Yet, by insisting upon this
requirement after the adopting parents' deaths, this Court is harming the very person that the
requirement would protect.
For all the foregoing reasons, equity ought to intervene on the child's behalf in these types of cases,
and require the performance of the contract if it is sufficiently proven. See OCGA § 23-1-8. In this
case, I would thus not rule against O'Neal's claim for specific performance solely on the ground that
her paternal aunt did not have the authority to consent to the adoption.
2. Moreover, basing the doctrine of equitable adoption in contract theory has come under heavy
criticism, for numerous reasons. For instance, as we acknowledged in Wilson, supra, 139 Ga. at 659,
78 S.E. 30, the contract to adopt is not being specifically enforced as the adopting parents are dead;
for equitable reasons we are merely placing the child in a position that he or she would have been in
if he or she had been adopted. Moreover, it is problematic whether these contracts are capable of
being enforced in all respects during the child's infancy. Furthermore, because part of the
consideration for these contracts is the child's performance thereunder, the child is not merely a
third-party beneficiary of a contract between the adults involved but is a party thereto. Yet, a child is
usually too young to know of or understand the contract, and it is thus difficult to find a meeting of
the minds between the child and the adopting parents and the child's acceptance of the contract. I
agree with these criticisms and would abandon the contract basis for equitable adoption in favor of
the more flexible and equitable theory advanced by the foregoing authorities. That theory focuses
not on the fiction of whether there has been a contract to adopt but on the relationship between the
adopting parents and the child and in particular whether the adopting parents have led the child to
believe that he or she is a legally adopted member of their family.
3. Because the majority fails to honor the maxim that “[e]quity considers that done which ought to
be done,”§ 23-1-8, and follows a rule that fails to protect a person with superior equities, I dissent.

Welch vs. Wilson, 516 S.E.2d 35 (W. Va. 1999)
Per Curiam:
This is an appeal by Glenell Welch (hereinafter “Appellant”) from a December 31, 1997, order of
the Circuit Court of Wood County, ruling that John Maxwell Wilson, II, (hereinafter “Appellee”)
was the sole heir of John Maxwell Wilson (hereinafter “decedent”). The Appellant contends that the
149

lower court erred in ruling that she was not equitably adopted by the decedent and in improperly
relying upon certain probate records of Mrs. Margaret Wilson, the decedent's wife and the
Appellant's grandmother. We reverse the decision of the lower court and remand for entry of an
order declaring that the Appellant had been equitably adopted by the decedent.
I. Facts
The Appellant was born on August 31, 1971, to Glen and Kathy Welch. Within six months of her
birth, physical custody of the Appellant was voluntarily transferred to the Appellant's maternal
grandmother, Mrs. Margaret Wilson, and her husband, decedent John Maxwell Wilson. Mr. Wilson
was the step-grandfather of the Appellant, and Mr. Wilson had one natural child from a previous
marriage, Appellee John Maxwell Wilson, II.
Mr. and Mrs. Wilson provided all financial support for the Appellant, and she maintained little
contact with her natural parents. Her parents eventually divorced, her father remarried, and her
mother moved out of state without further visitation or contact. While the Wilsons did not seek
formal adoption, school records indicated that John and Margaret Wilson were the Appellant's
parents. The evidence indicated that the Wilsons functioned as the parental authorities for the
Appellant for a period of fifteen years, from the time the Appellant was six months of age until the
death of Mrs. Wilson in 1986. Mrs. Sandra Welch, Glen Welch's third wife, testified that upon Glen
Welch's instruction, she visited the Wilson home to offer to take Glenell from Mr. Wilson's care
after the death of Mrs. Wilson. Mr. Wilson allegedly informed Mrs. Welch that he wished to retain
custody of Glenell; consequently, the Appellant continued to reside with Mr. Wilson after Mrs.
Wilson's death.
In 1988, the Appellant gave birth to a child out of wedlock. Although she lived briefly with her
boyfriend and in her own trailer with the child, she continued to reside primarily with Mr. Wilson
until she was nineteen years of age, in 1990. When Mr. Wilson was diagnosed with cancer in 1993,
Glenell and other family members cared for him in his home. On June 14, 1996, Mr. Wilson died
intestate.
Pursuant to West Virginia Code § 42-1-9 (1998), entitled “Establishment and Recordation of
Descent,” the Appellant filed a Petition for Determination of Heirship in the lower court, alleging
that she had been equitably adopted by the decedent. Subsequent to a bench trial, the lower court
denied the petition and ruled that the Appellant had failed to establish sufficient facts to prove that
she had been equitably adopted by the decedent. The Appellant appeals that ruling to this Court.
II. Standard of Review
We expressed the following standard of review in syllabus point four of Burgess v. Porterfield, 469
S.E.2d 114 (Va., 1996): “This Court reviews the circuit court's final order and ultimate disposition
under an abuse of discretion standard. We review challenges to findings of fact under a clearly
erroneous standard; conclusions of law are reviewed de novo.”
III. Discussion
The Appellant asserts that the lower court erred in failing to find that she had been equitably
adopted by the decedent, and further asserts that the lower court improperly relied upon certain
150

probate records of Mrs. Margaret Wilson. Our seminal case on the issue of equitable adoption is
Wheeling Dollar Savings & Trust Co. v. Singer, 250 S.E.2d 369 (W. Va., 1978). Syllabus point two of
Singer explained as follows:
The doctrine of equitable adoption is hereby incorporated into the law of West Virginia, but
a litigant seeking to avail himself of the doctrine in a dispute among private parties
concerning trusts or the descent of property at death must prove by clear, cogent, and
convincing evidence that he has stood from an age of tender years in a position exactly
equivalent to that of a formally adopted or natural child; provided, however, that the same
strict standard of proof does not apply to the determination of dependency under any State
remedial statute conferring State government benefits which must be liberally construed to
effect its purpose.
250 S.E.2d at 370 (footnote added).
In addressing the competing concerns of an equitable adoption allegation, we reasoned in Singer that
“[w]hile formal adoption is the only safe route, in many instances a child will be raised by persons
not his parents from an age of tender years, treated as a natural child, and represented to others as a
natural or adopted child.” 250 S.E.2d at 373.
Our family centered society presumes that bonds of love and loyalty will prevail in the distribution
of family wealth along family lines, and only by affirmative action, i.e., writing a will, may this
presumption be overcome. An equitably adopted child in practical terms is as much a family
member as a formally adopted child and should not be the subject of discrimination. He will be as
loyal to his adoptive parents, take as faithful care of them in their old age, and provide them with as
much financial and emotional support in their vicissitudes, as any natural or formally adopted child.
Id.
In discussing the proof necessary to establish equitable adoption, we noted as follows in Singer:
Circumstances which tend to show the existence of an equitable adoption include: the
benefits of love and affection accruing to the adopting party, Foster v. Cheek, 96 S.E.2d 545
(Ga. 1957); the performances of services by the child, Lynn v. Hockaday, 61 S.W. 885 (Mo.
1901); the surrender of ties by the natural parent, Chehak v. Battles, 110 N.W. 330 (Iowa
1907); the society, companionship and filial obedience of the child, Oles v. Wilson, 141 P. 489
(Colo.1914); an invalid or ineffectual adoption proceeding, Benefield v. Faulkner, 29 So.2d 1
(Ala. 1947); reliance by the adopted person upon the existence of his adoptive status, Adler v.
Moran, 549 S.W.2d 760 (Tex.Civ.App.1977); the representation to all the world that the child
is a natural or adopted child, In re Lamfrom's Estate, 368 P.2d 318 (Ariz. 1962); and the
rearing of the child from an age of tender years by the adopting parents. Lamfrom's Estate,
supra. Of course, evidence can be presented which tends to negate an equitable adoption
such as failure of the child to perform the duties of an adopted child, Fisher v. Davidson, 195
S.W. 1024 (Mo. 1917), or misconduct of the child or abandonment of the adoptive parents,
Winne v. Winne, 59 N.E. 832 (N.Y.1901); however, mere mischievous behavior usually
associated with being a child is not sufficient to disprove an equitable adoption. Tuttle v.
Winchell, 178 N.W. 755 (Neb. 1920).
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Id. at 508-09, 250 S.E.2d at 373-74. See also Kisamore v. Coakley, 437 S.E.2d 585 (W. Va.1993).
In the case sub judice, the facts are virtually undisputed. Our review of the lower court's conclusion
of law is de novo. We find that the Appellant has proven by clear, cogent, and convincing evidence,
that she enjoyed a status within the decedent's home and family identical to that of a formally
adopted child. Reviewing all facts available, we find that the decedent treated the Appellant with the
degree of care, nurturing, and shelter enjoyed by a natural child. Ties were severed with her natural
parents, and the decedent specifically declined the opportunity to release himself of the
responsibility for the care of the Appellant subsequent to Mrs. Wilson's death. The evidence of the
decedent's devotion to the Appellant and her reciprocation of such devotion is uncontradicted, and
the record is replete with examples of the loving relationship between the two.
Consequently, we reverse the decision of the lower court and remand for entry of an order declaring
that the Appellant had been equitably adopted by the decedent.
Notes and Questions
1. Informal arrangements are common in many communities, especially in communities of color.
When something happens to a parent, the grandparent or other close relatives usually step forward
and care for the minor children. These people may not have the time or money to execute a legal
adoption. In some cases, even persons with the resources do not think that an adoption is necessary.
Should the child be penalized because the adults failed to take the steps necessary to legally adopt
him or her? Michael J. Higdon, When Informal Adoption Meets Intestate Succession: The Cultural Myopia of
the Equitable Adoption Doctrine, 43 Wake Forest L. Rev. 223, 230-250 (Spring 2008).
2. From a public policy perspective, what are the pros and cons of recognizing equitable adoptions?
Jan Elle Rein, Relatives By Blood, Adoption, and Association: Who Should Get What and Why?, 37 Vand. L.
Rev. 711 (1984).
3. The main issue addressed by the O’Neal court was whether the person who gave O’Neal to the
Cooks had the legal authority to consent to her adoption. The purpose of the equitable adoption
doctrine is to enable the court to deem done what the parties intended to be done. This is usually
the case when the courts exercise their equitable powers. In the O’Neal case, since no one with the
authority attempted to have the child legally adopted, the child could not be considered equitably
adopted. The court’s job is to effectuate the parties’ intent not to create it.
4. What factual differences justify the different outcomes of the O’Neal and Welch cases?
5. Is the O’Neal case correctly decided if the purpose of the intestacy system is to carry out the
presumed intent of the decedent?
6. Would O’Neal’s case have been stronger if she had introduced evidence that she took care of the
Cooks when they were elderly?

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Right to inherit from biological parents

Gardner v. Hancock, 924 S.W.2d 857 (Mo. 1996)
MONTGOMERY, Presiding Judge.
Ruth Elizabeth Gardner (Respondent), James Gardner's niece, brought a quiet title action with an
alternative count for partition against Josephine Gardner Broyles (Appellant). After a bench trial, the
trial court determined that Appellant is the equitably adopted daughter of Stanford R. Chapman and
Josie E. Chapman and is “judicially estopped” from asserting she is an heir of James Gardner, her
natural father. The trial court adjudged that Appellant had no right, title or interest in the real estate
in question, and consequently the Hancocks took nothing by Appellant's deed to them. See supra
note 1. We reverse and remand.
The dispositive question on appeal is whether an equitably adopted child may inherit from the
child's natural parent under § 474.010 Appellant correctly claims the trial court erroneously applied
the law in holding that the theory of equitable adoption can be used by a third party (Respondent) to
bar a child (Appellant) from inheritance rights in her natural parents' property.
Our review of this action for equitable relief is governed by Rule 73.01(c) and Murphy v. Carron, 536
S.W.2d 30 (Mo. banc 1976). “[T]he decree or judgment of the trial court will be sustained by the
appellate court unless there is no substantial evidence to support it, unless it is against the weight of
the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Id. at
32.
In this case no one disputes that Appellant is the natural child of James Gardner, deceased. The
controversy only centers on Appellant's right to inherit from her father under § 474.010 after she
was equitably adopted by the Chapmans. Because Appellant apparently “inherited” an interest in
Oklahoma real estate from Mrs. Chapman, Respondent claims Appellant “now wants a second bite
of the apple-to receive from the estate of the Chapmans, her adoptive parents, and again from the
estate of James Gardner, her natural parent.” However, Respondent cites no authority supporting
her “second bite” theory.
We need not recite the facts the trial court found to support its determination that the Chapmans
equitably adopted Appellant. We can resolve the issue on this appeal by assuming, without deciding,
the trial court's determination was correct.
This is a case of first impression in Missouri. The parties cite no cases, and we have located none in
which a person in Respondent's position has been allowed to establish an equitable adoption to deny
an equitable adoptee's inheritance rights from a natural parent. To reach the correct result, we must
examine the theory behind equitable adoption.
Generally speaking, the theory of recovery in an equitable adoption case is founded upon either
equitable principles or upon the theory of estoppel. In the former it is a judicial remedy for an
unperformed contract of legal adoption or, in the alternative, the ordering of specific performance
of an implied contract to adopt. The estoppel theory operates to preclude a party from asserting the
invalidity of a status of an “adopted” child for inheritance purposes. It has been said that a so-called
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“equitable adoption” is no more than a legal fiction permitting specific performance of a contract to
adopt. Furthermore, the descriptive phrase “adoption by estoppel” has been described as a
shorthand method of saying that because of the promises, acts and conduct of an intestate deceased,
those claiming under and through him are estopped to assert that a child was not legally adopted or
did not occupy the status of an adopted child.
An adoption by estoppel is an equitable remedy to protect the interests of a person who was
supposed to have been adopted as a child but whose adoptive parents failed to undertake the legal
steps necessary to formally accomplish the adoption; the doctrine is applied in an intestate estate to
give effect to the intent of the decedent to adopt and provide for the child.
The doctrine is predicated on principles of contract law and equitable enforcement of the agreement
to adopt for the purpose of securing the benefits of adoption that would otherwise flow from the
adoptive parent under the laws of intestacy had the agreement to adopt been carried out; as such it is
essentially a matter of equitable relief. Being only an equitable remedy to enforce a contract right, it
is not intended or applied to create the legal relationship of parent and child, with all the legal
consequences of such relationship, nor is it meant to create a legal adoption. (Footnotes omitted.)
Our courts embrace the general principles set forth above. (citations omitted).
A case factually similar to the instant matter is Kupec v. Cooper, 593 So.2d 1176 (Fla. Dist. Ct. App.
1992), where an alleged adopted child sought to inherit from his natural father's estate. The appellate
court determined the trial court incorrectly found the child was legally adopted by his stepfather,
thereby barring inheritance from the child's natural father. On appeal the child also advanced an
argument that the trial court erroneously applied the theory of equitable adoption to change his
status to that of a legally adopted child which precluded inheritance from his natural father.
Although apparently dicta, the court responded by stating:
[Equitable adoption] is applied in an intestate estate to give effect to the intent of the decedent to
adopt and provide for the child. If no legal adoption occurred and [stepfather] were to die intestate,
[child] could use the theory of equitable adoption to inherit a share of his estate. However,
application of this doctrine does not change his status to that of a legally adopted child. Equitable
adoption could only affect his rights against the intestate estate of [stepfather]. It does not affect his
rights against the intestate estate of his natural father....
Id. at 1178 (citation omitted).
The Florida court had no difficulty announcing that an equitably adopted child could inherit from
both the adoptive parents and from the natural parents because the doctrine of equitable adoption
does not change the child's status to that of a legally adopted person. We see no reason for a
different result in Missouri.
Although not factually like the instant case, Halterman contains a similar issue to that raised here. The
natural father in Halterman claimed the alleged adoptive mother was not entitled to establish that she
was the deceased child's mother through equitable adoption because the doctrine is solely for the
benefit of the child. Here, for the same reason, Appellant claims that Respondent cannot rely on the
doctrine to deny Appellant's inheritance rights.
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After the natural father in Halterman filed a wrongful death action for the death of his daughter, the
alleged adoptive mother filed a motion to intervene on the basis that she was the child's mother by
an equitable adoption. Relying on Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556 (banc 1931), the
appellate court upheld denial of the motion to intervene and said, “It is clear from Drake that
equitable adoption was developed solely to benefit the child.” 867 S.W.2d at 560. According to
Halterman the primary purpose of equitable adoption is illustrated by Rumans v. Lighthizer, supra,
which held that equitable adoption could not be used to establish heirship for the purpose of
inheriting from the alleged equitably adopted child. Id.
The result in Halterman reinforces our view that the doctrine of equitable adoption does not bar
Appellant's inheritance rights in her natural father's estate. Application of the doctrine in this case
benefits only Respondent which is contrary to the purpose of the doctrine as reasoned in Halterman.
Therefore, we hold that the doctrine of equitable adoption does not apply in this case to bar
Appellant's inheritance rights in her natural father's estate. If we held otherwise, the primary purpose
of the doctrine would be ignored.
The judgment is reversed, and the cause is remanded for further proceedings.
Notes and Questions
1. The Court in the Gardner case discusses the difference between the legal doctrines of equitable
adoption and adoption by estoppel. The Court classifies equitable adoption as a judicial remedy used
to enforce a contract to adopt. The Court refers to the adoption by estoppel doctrine as a judicial
remedy utilized to prevent someone from denying the existence of the adoption. But see Luna v.
Estate of Rodriguez, 906 S.W.2d 576 (Tex. App. 1995)(Court merges the doctrines and analyzes the
case under a theory of equitable adoption by estoppel.).
2. Equitable adoption may be applicable in the following situations.
Situation One: Josephine decided that she did not want to raise her daughter, Bonnie, as a single
parent. Thus, she asked her friends, Bertha and Elmer, to adopt the child. Bertha and Elmer were
already the parents of one birth child and one legally adopted child. The parties signed the adoption
papers, but the petition was never filed. Nonetheless, Bonnie lived with Bertha and Elmer until she
reached the age of majority. She had minimal contact with Josephine. Josephine told everyone that
Bertha and Elmer were Bonnie’s adoptive parents. Bertha and Elmer held Bonnie out as their
daughter. Since the adoption papers were never filed, the jurisdiction did not legally recognize the
adoption. However, the court could use its equitable powers to perform the adoption by operation
of law. The result would be that Bonnie, as an equitably adopted child, would be able to inherit from
Bertha and Elmer on par with their birth and legally adopted children. See Cubley v. Barbee, 735
S.W.2d 72 (Tex. 1934); Lankford v. Wright, 489 S.E.2d 604 (N.C. 1997).
Situation Two: After his wife died, Craig told his deceased wife’s parents he did not feel qualified to
raise his two small children. Craig’s in-laws decided to take the children into their home in order to
give Craig time to grieve. Once the children moved in with his deceased wife’s parents, Craig had no
further contact with the children. He said that it was too painful for him to see the children because
they looked like their mother. The children lived with their maternal grandparents until they reached
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the age of majority. Since the grandparents never attempted to adopt the children, the jurisdiction
did not recognize the children as being legally adopted. Nevertheless, the court could use its
equitable powers to imply a contract to adopt. Then, the court would use its equitable powers to
enforce the implied contact to adopt. Consequently, Craig’s children would be able to inherit from
their maternal grandparents on par with their mother’s siblings. Because of the lack of parental
consent to the adoption a child presenting this type of fact pattern to a court may have a more
difficult time proving an equitable adoption. See Wheeling Dollar Sav. & Trust Co. v. Singer, 250 S.E.2d
369 (W. Va. 1978); DeHart v. DeHart, 986 N.E.2d 85 (Ill. 2013).
3. Adoption by estoppel is meant to prevent someone from objecting to the classification of a child
as adopted in some circumstances. The doctrine comes into play when there has been a reasonable,
detrimental reliance on a promise (explicit or implied) to adopt. As the Gardner court states:
“’Adoption by estoppel’ has been described as a shorthand method of saying that because of the
promises, acts and conduct of an intestate deceased, those claiming under and through him are
estopped to assert that a child was not legally adopted or did not occupy the status of an adopted
child.”
The right to inherit through the intended adoptive parents

Bd. of Education of Montgomery County v. Browning, 635 A.2d 373 (Md. 1994)
MURPHY, Chief Judge.
This case involves the concept of equitable adoption, and in particular, whether a person, if
equitably adopted, may inherit by intestate succession from the sister of an equitably adoptive
parent.
Eleanor G. Hamilton, a resident of Montgomery County, died intestate in August, 1990, leaving an
estate valued at $394,405.57. At the time of her death, Hamilton had no known living blood
relatives. Appellee Paula M. Browning was appointed Personal Representative of the Estate of
Eleanor G. Hamilton on May 21, 1991.
Paula was born out of wedlock on October 4, 1919. Her natural father, Lawrence E. Hutchison,
legally adopted Paula on October 10, 1921. In March of 1922, Hutchison married Marian Estelle
Gibson. Paula grew up in the Hutchison's household in the District of Columbia; Marian, however,
never formally adopted Paula. Marian, who died in 1986, was the sister of the decedent Eleanor
Hamilton.
Because Eleanor apparently died without any heirs, the Board of Education of Montgomery County
claimed that it was entitled to Eleanor's estate pursuant to the Maryland escheat laws Believing that
she was a legal heir of Eleanor, Paula filed a complaint for declaratory judgment and a motion for
summary judgment in the Circuit Court for Montgomery County. In her complaint, Paula named the
Board of Education as defendant because the Board had a potential claim to the proceeds of
Eleanor's estate through the escheat laws. Paula sought a declaration that she was the equitably
adopted child of Marian; and as such was entitled to inherit the Estate of Eleanor G. Hamilton,
Marian's sister.
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In support of her motion for summary judgment, Paula submitted an affidavit in which she stated
that she maintained a normal child-parent relationship with Lawrence and Marian Hutchison
throughout her life. She also stated that Lawrence and Marian told her when she was a child, and
later when she was an adult, that she had been adopted by them; moreover, Paula stated that Marian
specifically told her in 1984 that Marian had adopted her. In 1992, when she was asked to produce
proof of adoption for the instant litigation, Paula discovered that she had not been legally adopted
by Marian. In her affidavit, Paula also stated that no other heirs had presented or filed claims
regarding Eleanor's estate.
The Board of Education of Montgomery County, pursuant to Maryland Rule 2-322(b), filed a
motion to dismiss for failure to state a claim upon which relief can be granted. The Board
maintained that Paula's complaint failed to allege facts which would enable a court to declare that
she was the equitably adopted child of Marian. The Board further averred that, even if Paula were
adjudged to be the equitably adopted daughter of Marian, she could not, as a matter of law, inherit
from the estate of her equitably adoptive mother's sister. The Board therefore argued that because
Eleanor Hamilton died without a will and without any legal heirs, it was entitled to her estate under
the Maryland law of escheat, as set forth in Maryland Code (1991 Repl. Vol., 1993 Cum. Supp.) § 3105(a) of the Estates and Trusts Article. Specifically, the Board asked the circuit court to grant its
motion to dismiss and declare that: (1) Paula is not entitled to inherit from Eleanor's estate; and (2)
the estate escheats to the Board of Education of Montgomery County.
After a December, 1992 hearing, the court concluded that the Board of Education had conceded
that Paula was the equitably adopted child of Marian. The court therefore framed the sole remaining
issue as follows: “whether Paula Browning, as the equitably adopted daughter of Marian Hutchison,
may inherit as a collateral heir to the estate of Marian Hutchison's sister, Eleanor G. Hamilton.”
Relying on First Nat. Bank in Fairmont v. Phillips, 176 W.Va. 395, 344 S.E.2d 201 (1985), upon the fact
that the Board of Education was the only other party interested in the Hamilton estate, and on the
close relationship between Paula and her equitably adoptive mother, the court determined that Paula
could inherit from the estate of her equitably adoptive mother's sister. Thus, the court denied the
Board's motion to dismiss and granted Paula's motion for summary judgment. The Board appealed
to the Court of Special Appeals. We granted certiorari prior to consideration of the appeal by the
intermediate appellate court to decide the significant issue presented in this case 331 Md. 178, 626
A.2d 967.
II
Before us, the Board reasserts its view that an equitably adopted child may not inherit from her
equitably adoptive parent's sibling. On the other hand, Paula argues that the lower court correctly
ruled, as a matter of law, that a child may inherit by intestate succession from the sister of an
equitably adoptive parent thereby defeating an escheat to the State.
The Board also contends that the lower court improperly granted Paula's motion for summary
judgment because the court failed to consider the elements of equitable adoption and the evidence
fell far short of the clear and convincing proof necessary to establish an equitable adoption. We need
not address this argument, however, because even assuming arguendo that Paula was equitably
adopted by Marian, we conclude that Paula may not inherit from her equitably adoptive parent's
sister. Therefore, the trial court should have granted the Board's motion to dismiss and declared that
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the Estate of Eleanor G. Hamilton escheats to the Board of Education of Montgomery County.
When analyzing a motion to dismiss pursuant to Maryland Rule 2-322(b), we must accept as true all
well-pleaded facts and allegations in the complaint. Faya v. Almaraz, 329 Md. 435, 443, 620 A.2d 327
(1993). Dismissal is only proper if the facts and allegations viewed in the light most favorable to the
plaintiff fail to afford the plaintiff relief if proven. Id.; Berman v. Karvounis, 308 Md. 259, 264-65, 518
A.2d 726 (1987); Sharrow v. State Farm Mutual, 306 Md. 754, 768, 511 A.2d 492 (1986). Moreover,
“any ambiguity or uncertainty in the allegations bearing on whether the complaint states a cause of
action must be construed against the pleader.” Figueiredo-Torres v. Nickel, 321 Md. 642, 647, 584 A.2d
69 (1991) (quoting Sharrow, supra, 306 Md. at 768, 511 A.2d 492).
For purposes of our analysis, we accept as true the factual allegations of Paula's complaint for
declaratory judgment and motion for summary judgment. Thus, we will assume that Paula is the
equitably adopted daughter of Marian Hutchison, Eleanor Hamilton's sister.
III
A. Equitable Adoption
In Maryland, the general rule is that there can be no adoption except under and in accordance with a
statute. See In re Adoption No. 9979, 323 Md. 39, 43, 591 A.2d 468 (1991); In re Lynn M., 312 Md. 461,
463, 540 A.2d 799 (1988); McGarvey v. State, 311 Md. 233, 236, 533 A.2d 690 (1987). There is a
narrow exception to this rule, however; equitable adoption, sometimes referred to as “adoption by
estoppel,” “virtual adoption,” or “de facto adoption,” permits individuals to circumvent the
statutory adoption procedures for certain limited purposes. See McGarvey, supra; Besche v. Murphy, 190
Md. 539, 59 A.2d 499 (1948). Under the doctrine of equitable adoption, however, no relationship of
parent and child is created and consequently, an equitably adopted child does not attain the status of
a statutorily adopted child. McGarvey, 311 Md. at 239-40, 533 A.2d 690.
The doctrine of equitable adoption “involves the notion that if an individual who is legally
competent to adopt a child enters into a contract to do so, and if the contract is supported by
consideration in the form of part performance that falls short of completion of statutory adoption,
then a court, applying equitable principles, may accord to the child the status of a formally adopted
child for limited purposes.” McGarvey, 311 Md. at 234, 533 A.2d 690. We have explained that when
there is a valid contract for adoption, although not consummated and given legal effect by adoption
proceedings during the lifetime of the adopting parent, the contract may, upon the parent's death, be
enforced to the extent of decreeing that the child occupy the status of an adopted child in equity,
entitled to rights of inheritance from the adoptive parent where circumstances require such relief as
a matter of justice. See Besche, supra, 190 Md. at 547, 59 A.2d 499.
In McGarvey, supra, we stated that “Maryland would likely look with favor upon the doctrine [of
equitable adoption] to the extent of permitting an equitably adopted child to take property from an
equitably adoptive parent by intestate succession.” 311 Md. at 238. The basis of this doctrine, which
permits a child to share in the estate of the deceased parent who had agreed to adopt the child, is
that it is inequitable and unjust to allow the parent to escape the obligations of an adoptive parent by
failing to comply with the agreement. See Thompson v. Moseley, 344 Mo. 240, 125 S.W.2d 860, 862
(1939).
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This equitable principle of law has been explained under two different theories. The first theory is
specific performance of the contract to adopt. Applying this theory, courts enforce the promise of
the adoptive parent provided that sufficient consideration is given in return for the promise of
adoption. However, “[c]ourts grant this remedy only against the estate of a deceased promisor.” See
Note, Equitable Adoption: They took him into their home and called him Fred, 58 Va.L.Rev. 727, 730 (1972).
The second theory is estoppel under which the personal representative of the estate of the adoptive
parent is estopped from asserting that the child was not an adopted child. Specifically:
“[estoppel operates] to preclude adoptive parents and their privies [i.e., the estate] from
asserting the invalidity of adoption proceedings, or, at least, the status of the adopted child,
when, by performance upon the part of the child, the adoptive parents have received all the
benefits and privileges accruing from such performance, and they by their representations
induced such performance under the belief of the existence of the status of adopted child.”
Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906, 908 (1940). It is not important which theory is employed
because the application of the doctrine of equitable adoption is the same. See Note, supra, 58
Va.L.Rev. at 736-38. The courts under either theory focus upon the equities involved and require
“clear and convincing evidence” of the adoption contract. See McGarvey, supra, 311 Md. at 238, 533
A.2d 690.
In formally recognizing the doctrine of equitable adoption in Maryland, McGarvey relied on Besche,
supra, where we said:
“ ‘the authorities very generally establish the proposition, that a parol obligation by a person
to adopt the child of another as his own, accompanied by the virtual though not statutory
adoption, and acted upon by both parties during the obligor's life, may be enforced upon the
death of the obligor, who dies without disposing of the property by his will;’ ... [this
proposition] seems to be supported by the weight of authority in this country to the extent
that the courts decree that a child so treated will be entitled to a right of inheritance from the
estate of the foster parent such as a natural child would enjoy, where the child in question
has faithfully and fully performed the duties of a natural child to the foster parents.”
190 Md. at 546, 59 A.2d 499 (quoting in part Clayton v. Supreme Conclave, Improved O. of H., 130 Md.
31, 36-37, 99 A. 949 (1917)). Besche further stated:
“[B]ased upon the maxim that equity considers that done which ought to be done, ...‘[i]t is
now firmly established that an oral agreement to adopt, where there has been a full and
faithful performance on the part of the adoptive child, but which was never consummated
by formal adoption proceedings during the life of the adoptive parent, will, upon the death
of the latter, and when equity and justice so requires, be enforced to the extent of decreeing
that such child occupies in equity the status of an adopted child, entitled to the same right of
inheritance from so much of his foster parent's estate that remains undisposed of by will or
otherwise, as he would have been had he been a natural born child.’ ”
190 Md. at 547, 59 A.2d 499 (quoting in part Burdick v. Grimshaw, 113 N.J.Eq. 591, 168 A. 186, 188
(1933)).
Maryland therefore recognizes the doctrine of equitable adoption as it applies to an equitably
adopted child who seeks to inherit by intestate succession from the estate of an equitably adoptive
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parent. McGarvey, 311 Md. at 238-39, 533 A.2d 690. A majority of other jurisdictions also recognize
the doctrine to the extent of permitting an adoptee to inherit from an equitably adoptive parent's
estate. See George A. Locke, Annotation, Modern Status as to Equitable Adoption or Adoption by Estoppel,
97 A.L.R.3d 347 (1980 & Supp.1993). However, few courts apply the doctrine “as we move beyond
the subject of inheritance by an equitably adopted child from an equitably adoptive parent.”
McGarvey, 311 Md. at 239, 533 A.2d 690.
B. The Scope of the Doctrine of Equitable Adoption
As we earlier discussed, the doctrine of equitable adoption does not affect the status of the child; it
merely entitles the adopted child to inheritance rights from the adoptive parent. See McGarvey, 311
Md. at 239-40, 533 A.2d 690. In the instant case, Paula asks us to extend the doctrine of equitable
adoption so that an equitably adopted child may inherit from her equitably adoptive parent's sibling,
thereby defeating an escheat to the Board of Education. In other words, Paula argues that an
equitably adopted child may inherit through, as opposed to from, her equitably adoptive parent.
Although Maryland has never considered this issue, a few jurisdictions have addressed it. In Menees v.
Cowgill, 359 Mo. 697, 223 S.W.2d 412 (1949), cert. denied, 338 U.S. 949, 70 S.Ct. 488, 94 L.Ed. 585
(1950), the Supreme Court of Missouri faced the question of whether a “daughter” could inherit
from her equitably adoptive “father's” sister. There, the court stated:
“While it is in effect admitted that the [“daughter”] would have been entitled to a decree of
equitable adoption against [her putative father] during his lifetime, or against his heirs at law
or his personal representatives after his death, entitling her to inherit from him as an adopted
daughter, she is not entitled to such a decree as against the collateral kin of his sister, who
were not parties to the adoption contract and who are not bound thereby. No equities exist
in her favor as against them authorizing a decree of equitable adoption by him as against
them.... A decree for equitable adoption of [the “daughter”] by [her putative father] in this
proceeding against the collateral heirs of [the putative father's] sister would be wholly
unauthorized.
Id. 223 S.W.2d at 418. The Supreme Court of Missouri continued:
If [the putative father] had legally adopted [the “daughter”] in compliance with statutory
requirements, the adoption would have been binding on all persons, ... but in an equitable
proceeding based upon contract, only the parties thereto, or those in privity with them are
bound. Equity acts only against specific individuals and, in such case, one person may be
bound and not another. A decree of equitable adoption merely forecloses ‘the parties to the
suit against a denial of the status that the court declares' and the status decreed exists only in
equity and against the judgment defendants. As between [the parties in the instant case], [the
“daughter”] was not, in either law or equity, the adopted child of [the putative father] by
reason of his contract to adopt her.”
Id. The court therefore determined that the “daughter” could not inherit through her equitably
adoptive “father;” i.e., from her “adoptive aunt's” estate.
Similarly, in In re Estate of Olson, 244 Minn. 449, 70 N.W.2d 107 (1955), the Supreme Court of
Minnesota addressed the question of whether an equitably adopted child could inherit from his
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equitably adoptive parent's brother. In that case, Johnny O. Olson, the equitably adoptive son of
Gilbert K. Olson's brother, sought to inherit from the estate of Gilbert K. Olson as an adoptive
nephew. The court summarized its position as follows:
“We believe that an equity court, weighing the equities involved, may ... treat the situation as
though the relationship of parent and child had been established and may allow the child to
inherit from the estate of the one promising to adopt. However, in our opinion, the relationship thus
enforced does not create a legal adoption as provided in our statutes. When the words
‘equitable adoption’ are used, it is our opinion that the court, under its general equity powers,
merely is treating the situation as though the relationship had been created between the one
promising to adopt and the beneficiary of that promise.”
Id. 70 N.W.2d at 110. (emphasis added) The court then explained that the doctrine does not permit
equitably adopted children to inherit through their equitably adoptive parents. Thus, the court stated
“no equities have been shown in favor of Johnny O. Olson and against the heirs of Gilbert K.
Olson; therefore, in our opinion, he has no rights in the estate of [his equitably adoptive parent's
brother,] Gilbert K. Olson.” Id.
In Pouncy v. Garner, 626 S.W.2d 337 (Tex.Ct.App.1981), appellant Pouncy sought to recover a share
of the estate of his equitably adoptive parents' natural daughter. In other words, Pouncy sought to
inherit as the decedent's adopted brother. Appellees argued that, even if Pouncy was equitably
adopted by the decedent's parents, Pouncy was not entitled, as a matter of law, to inherit from the
decedent as her adopted brother. Agreeing with the appellees, the court stated:
“Appellant Pouncy is not seeking to recover a share of the estate of [his equitably adoptive
parents]; instead, he is seeking to inherit the estate of Lula D. Dailey as her equitably adopted
brother on the grounds that her parents were estopped to deny such adoption.
Under adoption by estoppel, only the adoptive parents and their privies are estopped to deny the
adoption. The estoppel to deny the adopted status does not operate or work against collateral
kindred not in privity with the adoptive parents. A child adopted by estoppel does not inherit from
collateral kindred, as there is no privity of estate between such kindred and the adoptive parents.”
Id. at 341-42. (emphasis in original). The court concluded: “Thus, even if Pouncy had established
that he was adopted under the estoppel doctrine ..., he would not inherit from Lula as her equitably
adopted brother.” Id. at 342.
The West Virginia Supreme Court of Appeals, however, has permitted an equitably adopted child to
inherit through an equitably adoptive parent under limited circumstances. See First Nat. Bank in
Fairmont v. Phillips, 176 W.Va. 395, 344 S.E.2d 201 (1985). In that case, the court phrased the issue as
follows: “may an equitably adopted child inherit as a brother or sister from another child of the
equitably adoptive parent?” Id. 344 S.E.2d at 204. The court answered this question in the
affirmative: an “equitably adopted child [may] inherit from another child of the adoptive parent.” Id.
at 205. The court, however, limited its holding to the facts of the case. Specifically, it stated that
“[w]e leave to another day the more troublesome question of whether the equitably adopted child
would inherit from collateral kindred of the adoptive parent(s).” Id. at 205 n. 6.
It is therefore clear that a majority of jurisdictions do not permit equitably adopted children to
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inherit from the kindred of their adoptive parents. Even the one jurisdiction that permitted an
equitably adopted child to inherit through her adoptive parents, namely West Virginia, specifically
limited the breadth of its holding. Moreover, in the area of equitable adoption, we have said that
Maryland is “surely not prepared to go as far as West Virginia has gone.” McGarvey, supra, 311 Md. at
240, 533 A.2d 690.
In the instant case, Paula seeks to inherit not from her putative mother, Marian Hutchison, but
rather from Marian's sister. We agree with those cases that stand for the proposition that an
equitably adopted child may not inherit through an equitably adoptive parent. Under both contractual
and estoppel notions, the equities that clearly exist in favor of permitting an equitably adopted child
to inherit from an equitably adoptive parent do not exist when that child seeks to inherit from a
sibling of the child's adoptive parents.
Paula suggests that those cases which hold that an equitable adoptee may not inherit through an
equitably adoptive parent are inapposite to the case at bar because in each of those cases, a legal heir
of the decedent, as well as the equitably adopted child, claimed an interest in the estate, whereas in
the instant case, only the Board of Education has filed a claim against the Estate of Eleanor
Hamilton. Paula maintains that a party, who is not an heir, such as the Board of Education, cannot
defeat her claim to the Hamilton estate.
Paula's counsel conceded during oral argument before us that if an heir existed, Paula would have no
interest in Eleanor's estate. Consequently, the crux of Paula's argument is that the doctrine of
equitable adoption permits an equitably adopted child to inherit from the adoptive parent's sibling
when the only other party seeking to inherit is the local Board of Education through the escheat
laws.
This rationale was rejected by a federal district court in In re Estate of McConnell, 268 F. Supp. 346
(D.D.C. 1967), aff'd, 393 F.2d 665 (D.C.Cir.1968). There, the federal district court, applying Florida
law, was faced with the question of whether the natural children of the equitably adoptive parents
could inherit from the equitable adoptee as “half-sisters” thereby defeating an escheat to the District
of Columbia. The court held that no Florida or District of Columbia case “touching on equitable
adoption is a precedent for a decree by this Court approving distribution of the estate of a deceased
adoptee to the heirs of an adoptive parent who did not legally consummate the adoption.” Id. at 349.
Accordingly, the court found that the “half-sisters” had no interest in the estate and the estate
escheated to the District of Columbia.
Although Paula correctly points out that escheats are not favored by law, Maryland law is crystal
clear that if no legal heir exists, the decedent's property escheats to the local Board of Education. See
Maryland Code (1991 Repl. Vol., 1993 Cum. Supp.) § 3-105 of the Estates and Trust Article. In the
instant case, therefore, because Paula may not inherit from her equitably adoptive mother's sister,
and Eleanor Hamilton died without heirs, her estate escheats to the Board of Education.
We therefore conclude that an equitably adopted child may not inherit from her adoptive parent's
sibling. Consequently, the entry of summary judgment in favor of Paula was inappropriate in this
case. Furthermore, the circuit court erred in denying the Board's motion to dismiss. Because Paula
may not inherit from Eleanor's estate, it escheats to the Board of Education of Montgomery
County.
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Judgment of the Circuit Court for Montgomery County Reversed. Case remanded to that Court
with directions to enter a declaratory judgment not inconsistent with this opinion.
ELDRIDGE, J., dissenting:
The Court decides today that when the “aunt” of an equitably adopted child dies intestate, when the
deceased had no “heirs” as defined by statute, and when the contest over the estate is between the
equitably adopted child claiming through her parent and the State claiming by escheat, the State
should prevail. Neither the cases nor reason support this result.
“Equitable adoption” is a principle of equity law. The doctrine is typically applied when a “parent”
has entered an arrangement to adopt a child that is not carried out according to the statutory
requirements but when both have acted as if there were a parent-child relationship. See McGarvey v.
State, 311 Md. 233, 236-238, 533 A.2d 690, 691-692 (1987). As the majority points out, the doctrine
is rooted in the notion that it would be “inequitable and unjust to allow the parent to escape the
obligations of an adoptive parent by failing to comply with the agreement.” Consequently, for
purposes of inheriting from the parent, courts will place the child “in the position he would have
been in, had he been adopted.” McGarvey v. State, supra, 311 Md. at 238, 533 A.2d at 692; Besche v.
Murphy, 190 Md. 539, 549-550, 59 A.2d 499, 505 (1947). Maryland recognizes the doctrine of
equitable adoption. McGarvey v. State, supra, 311 Md. at 238, 533 A.2d at 692.
Although this Court has not defined the contours of the doctrine, some other jurisdictions have
refused to allow the equitably adopted child to inherit through the equitably adopting parents in a
contest between the equitably adopted child and a legal heir of the decedent.
In general, I agree that an equitably adopted child should not share in the intestate estate of a
collateral “relative” at the expense of the legal heirs of that relative. The statutory laws of descent
and distribution are a legislative attempt to divine how the decedent would have disposed of his or
her property had there been a will. Barron v. Janney, 225 Md. 228, 234-235, 170 A.2d 176, 180 (1961).
It is not unreasonable, absent a will, to speculate that a deceased would have preferred that his or
her property devolve upon a legal heir rather than a person with whom the deceased had no
adoption arrangement.
Not one case cited by the majority, however, involves a contest between the State and an equitably
adopted child. The Court merely assumes that the same considerations which have defeated the
claim of an equitably adopted child, in a contest with a legal heir, also apply in this case. This
assumption, however, overlooks the State's unfavorable position in the intestate succession scheme.
Because “society prefers to keep ... property within the family as most broadly defined, or within the
hands of those whom the deceased has designated,” escheat is disfavored and is enforced only as a
last resort. United States v. 198.73 Acres of Land, More or Less, 800 F.2d 434, 435 (4th Cir.1986)
(emphasis added). Since the law disfavors escheat, the equitably adopted child who has served as a
dutiful family member should be entitled to the estate of her aunt. Furthermore, the factors that
weighed against the equitably adopted child in a contest with an heir have no relevance here, for
unlike those who would be entitled to take as heirs, the State has no “family” connection to the
intestate decedent. It functions solely as a repository of last resort for the decedent's estate should
there be no family members.
In deciding that Paula Browning is not entitled to the estate of Eleanor Hamilton, her “aunt,” the
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majority relies on reasoning that is either inconsistent or circular. The majority asserts that
“[a]lthough Paula correctly points out that escheats are not favored by law, ... Maryland law is crystal
clear that if no legal heirs exist, the decedent's property escheats to the local board of education”
(citations omitted) (emphasis added). If, by “legal heirs,” the majority means the legal heirs as
defined by statute, then the statement is inconsistent with the Court's view that one who is equitably
adopted, even though not included among the statutory heirs, is permitted to inherit from an
intestate equitably adopting parent. If, on the other hand, the majority means, by using the term
“legal heir,” simply a person who is entitled to inherit, then it has begged the question. The reason
the parties are before this Court is for a determination of who is legally entitled to inherit. Equitable
adoption is one of the reasons which entitles a person to inherit. The result is that the Court has
decided today, based on the most intellectually unsatisfying “reasons,” to deprive Paula Browning of
an inheritance.
The majority also ignores the fact that this is not simply a case where the relationship between Paula
and Marian Hutchinson, the deceased's sister, is based entirely upon equitable adoption. In this case,
Hutchinson had married Paula's biological father and, as a result, became her stepmother. According
to Maryland Code (1991 Repl. Vol., 1993 Cum. Supp.), § 3-104(e) of the Estates and Trusts Article,
based on this relationship, Paula would be a legal heir of Marian Hutchinson. To assume, in light of
this, that the deceased, leaving no will, would have preferred her property to go to the State by
escheat rather than to the legal heir of her sister compounds the inequity.
In effect, the Court has said today that when Eleanor Hamilton died intestate, she would have
preferred to leave her estate to the government rather than to Paula Browning who, although never
formally adopted, presumably because of oversight, was a member of the family for over seventy
years. I do not believe that such a result would have been intended by the deceased.
Notes and Problems
1. There are three theories under which a person who had not been legally adopted may obtain the
status of adopted child. In the one situation, the person parenting the child makes no attempt to
formally adopt the child even after they have received implicit or explicit consent to do so. A child
involved in that type of case may rely upon the doctrine of equitable adoption to achieve the right to
inherit from the potential adoptive parent. In another case, the person does not fulfill the promise
he or she makes to adopt the child or the person’s attempt to adopt the child is unsuccessful. The
court may resolve the case using the theory of equitable estoppel or a breach of contract theory. The
doctrine of equitable estoppel permits the court to prevent persons from objecting to the
classification of the relationship between the person and the child as an adoption after the child has
relied upon the belief that he or she is an adopted child. Under a breach of contract theory, the court
specifically enforces the promise to adopt the child. The court uses its equitable powers to deemed
the child to be adopted.
2. The equitably adopted child is usually not permitted to inherit through his or her adoptive parent.
Board of Educ. v. Browning, 635 A.2d 373 (Md. 1994). In addition, the adoptive parent and his or her
relatives are not eligible to inherit from the equitably adopted child. Estate of Riggs, 440 N.Y.S.2d 450
(Sur. 1980). The equitably adopted child can inherit from his or her adoptive parent and his or her
biological parent. See Gardner v. Hancock, 924 S.W.2d 857 (Mo. App. 1996). Some states have refused
to adopt the doctrine of equitable adoption. See Ladd v. Estate of Kellenberger, 307 S.E. 850 (N.C.
164

1983); Wilks v. Langley Adm’r, 451 S.W.2d 209 (Ark. 1970); In re Estate of Fox, 328 N.E.2d 224 (Ind.
App. 1975); Clarkson v. Bliley, 38 S.E.2d (Va. 1946).
3. In which of the following situations might the court find an equitable adoption to enable the child
to inherit from the alleged adoptive parents?
(a). Pete, a widower, was struggling to raise his three year old daughter, Dominic. While he worked,
Pete left Dominic with Jennifer, his neighbor. Pete was killed when he was struck by lightning. Pete
was not survived by any close relatives, so Jennifer made funeral arrangements for Pete. Dominic
lived with Jennifer until she reached the age of majority and went to college. When Dominic was
twenty-five years old, Jennifer died intestate. Dominic sought to inherit a portion of Jennifer’s estate.
(b). When she was sixteen years old, Keisha gave birth to a baby boy who she named Travon.
Keisha and Travon lived with her parents, Emily and Lionel. Two years later, Keisha was injured in
a car accident and had to undergo emergency surgery. At the hospital, Keisha told Lionel, “If I don’t
make it, take care of Travon.” Keisha died during surgery. Emily and Lionel reared Travon until he
reached the age of majority. Lionel died intestate as the result of a heart attack. After Emily received
her elective share, Travon sought to inherit a portion of Lionel’s estate.
(c). Karen and Roberto were the parents of twin daughters, Juanita and Maria. Karen and Roberto
became addicted to drugs. Family and Children Services removed Juanita and Maria from the
custody of their parents and took them to the police station. A social worker contacted Roberto’s
mother, Luisa, and told her to come pick up the children. Luisa took the children to her home and
they remained there until they reached the age of majority. Karen and Roberto Selena never stayed
sober long enough to regain custody of Juanita and Maria. When Luisa died intestate, Juanita and
Maria sought to inherit a portion of Luisa’s estate.
(d). Pinky became pregnant as the result of an affair with a married man. When she was five months
pregnant, Pinky met Douglas. A few weeks later, Pinky and Douglas moved in together. Pinky gave
birth to a son she named Avery. Douglas had his named placed on Avery’s birth certificate. Two
years later, Pinky gave birth to Douglas’ son, Raymond. Pinky and Douglas never married each
other, and Douglas never formally adopted Avery. Nonetheless, Pinky, Douglas, Avery and
Raymond lived as a family. When Douglas died intestate, Avery sought to inherit a portion of
Douglas’ estate.
(e). Amanda was a single mother of a son named Steven. When Steven was only two years old,
Amanda was diagnosed with stomach cancer and given only a few months to live. Amanda’s best
friend, Diane, agreed to care for the baby if Amanda did not survive the cancer. While Amanda was
in hospice care, Diane was transferred to a job in Italy and she took Steven with her. After Diane
left, Amanda discovered that she had been misdiagnosed. Amanda tried unsuccessfully to find
Diane, so she could get Steven back. Amanda was never able to locate Diane. Diane held Steven out
as her son and reared him until he reached the age of majority. When Diane died intestate, Steven
sought to inherit a portion of Diane’s estate.

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4.3.2

Adult Adoption

Adoption is based in contract law. Thus, not surprising, in order to have the right to adopt, a
person must be legally capable of executing a contract. Hence, a person must be over the age of
majority in order to legally adopt a child. Most adoption statutes do not place specific age limits on
the persons adopted. Typically, when a person decides to adopt a child, that person intends to adopt
someone under the age of majority. However, some state adoption laws permit adults to be adopted.
Prior to the legalization of same-sex marriages, in order to be able to make medical decisions for
their partners, some gays and lesbians adopted their partners. This often became a problem when
the adopted partner tried to inherit from the deceased partner’s estate. There are several reasons why
someone might want to adopt another adult.27 The cases in this section illustrate some of those
reasons. Even a person who is adopted as an adult loses connections to his or her biological family.28
The right to inherit through the adoptive parents
Some courts strictly apply the adoption statute without considering the legislative intent or
the motives of the parties. Thus, if the statute permits the adoption of an adult, the court recognizes
the adoption regardless of the reason for the adoption. On the other hand, some courts evaluate the
motive behind the adult adoption to ascertain if that motive violates public policy. In those cases,
the courts exercise their discretion to decide whether or not to recognize the adoption and permit
the adopted child to inherit from the adoptive parent.

In the Matter of the Petition of P.A.L., 5 P.3d 390 (Colo. 2000)
KAPELKE, J.
P.A.L. von R. appeals from the judgment of the trial court dismissing the petition to adopt his adult
sister, K.M.F. We reverse and remand for entry of an adoption decree.
Petitioner filed his petition pursuant to § 14-1-101, C.R.S. 1999, together with a consent to the
adoption and a waiver and acceptance of service signed by his sister. Following an evidentiary
hearing, the trial court denied the petition. No party opposed the requested adoption.
The court found that petitioner, age 60, was seeking the adoption to allow his sister, a German
citizen, age 55, to change her name to the original family name. Petitioner stated that his sister had
been unable to effect the name change by any court proceeding in Germany, but that an adoption
decree would be recognized.
The court also found that there was nothing in the statute that expressly prevented an adult from
adopting another adult of any age. However, the court indicated that it would exercise its discretion
and decline to decree the adoption because it appeared to the court to violate the public policy. The
Brynne E. McCabe, Adult Adoption: The Varying Motives, Potential Consequences, and Ethical Considerations, 22 Quinnipiac
Prob. L.J. 300 (2009).
28
See Kummer v. Donak, 715 S.E. 2d 7 (Va. 2011)(Adult adoption of a woman prevented her children from inheriting
from her biological sister).
27

166

transcript shows that the court was concerned with the lack of age differential between the
petitioner and his sister and with the fact that they were siblings.
Petitioner contends that § 14-1-101 contains no exception based upon age differential or blood
relationship. Therefore, he argues that the trial court erred in denying the petition for adoption. We
agree.
Section 14-1-101, the adult adoption statute, provides in pertinent part:
(1) Any person desiring to adopt an adult as heir at law shall file his petition in the juvenile
court of the county and thereupon summons shall issue … and be served on the person
sought to be adopted. Said person shall file in the court a written answer to the petition…
and shall either consent to such adoption or deny or disclaim all desire to be adopted by
such person.
(2) Upon the filing, by the person sought to be adopted, of a disclaimer of all desire to
become the heir at law of the petitioner, the petition shall be dismissed by the court, but upon
the filing of a consent to such adoption,…the prayer of the petition shall be granted, and a decree of adoption
shall be rendered and entered by the court declaring such person the heir at law of the petitioner and entitled
to inherit from the petitioner any property in all respects as if such adopted person had been
the petitioner’s child born in lawful wedlock, and such decree may or may not change the
name of such adopted person, as the court rendering the decree may deem advisable;
(emphasis added).
The statute authorizes the adoption of adults for the purpose of giving the adoptee the status of an
heir of law. In re Trust Created by Belgard, 829 P.2d 457 (Colo. App. 1991).
An adult adoption has been described as “merely a means of giving effect to a personal transaction
mutually agreeable between two adults.” Herrera v. Glau, 772 P.2d 682 (Colo. App. 1989) (quoting
Martinv. Cuellar, 131 Colo. 117, 279 P.2d 843 (1955)).
If we can give effect to the ordinary words used by the General Assembly, we must apply the statute
as written. Use of the word “shall” implies a mandatory meaning. In re Adoption of T.K.L., 931 P.2d
488 (Colo. App. 1996).
The plain language of § 14-1-101 requires the trial court to grant an adult adoption when there is
valid service and the adoptee consents to such adoption. Both requirements were met here. There
is no additional requirement that there be a minimum age differential between the adoptor and the
adoptee. See In re Adoption of Elizabeth P.S., 134 Misc. 2d 144, 509 N.Y.S. 2d 746 (1986) (lack of
disparity in age not fatal to adoption proceeding). Nor is adoption precluded based upon the prior
relationship of the parties. See In re Trust Created by Belgard, supra; see also Berston v. Minnesota Department
of Public Welfare, 296 Minn. 24, 206 N.W. 2d 28 (1973) (under statute allowing adoption of an adult
by “any person,” son’s petition to adopt mother granted even though admitted motive was to bring
her within terms of trust established by father who had divorced mother).
Finally, we are not aware of any public policy in Colorado that would be violated by permitting a
person to adopt his or her own adult sibling.
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Accordingly, we conclude that pursuant to the mandatory language of § 14-1-101, the court was
required to grant the petition and enter a decree of adoption.
The judgment is therefore reversed, and the cause is remanded for entry of a decree of adoption.

Tinney v. Tinney, 799 A.2d 235 (R.I. 2002)
BOURCIER, J.
In this case, the latest chapter in the bizarre saga of Belcourt Castle, a once majestic Newport
mansion, we are called upon to determine whether Kevin Tinney, a/k/a Kevin Jacob Koellisch, is
entitled pursuant to G.L.1956 § 33-1-10 to share in the intestate distribution of his adoptive and
now deceased mother's personal estate. The case comes to us on an appeal from a Superior Court
final judgment declaring that he is entitled to do so.
Facts and Travel
The facts in this matter are undisputed and aptly summarized in our opinion in Tinney v. Tinney, 770
A.2d 420 (R.I.2001). For purposes of this appeal, on October 11, 1990, Ruth E. Tinney, who was
then eighty-four years old, adopted the defendant Kevin, who was thirty-eight years old, in an adult
adoption proceeding in Newport Probate Court. On December 18, 1995, Ruth died intestate. On
July 6, 1999, Kevin filed a petition to probate Ruth's personal estate in the Newport Probate Court.
In his petition, he listed two heirs at law as sons of the decedent, himself and Ruth's biological son,
Donald Tinney. Kevin claimed a one-half ownership interest in Ruth's personal estate pursuant to §
33-1-10. B. Mitchell Simpson was duly appointed and qualified as the administrator of Ruth's estate.
Thereafter, on May 1, 2000, the plaintiff Donald filed this action seeking a declaratory judgment that
Kevin, as an adopted adult, was not entitled to intestate inheritance. Kevin and the administrator of
Ruth's estate were named as party defendants.
On September 27, 2000, Donald filed a motion for summary judgment, and on October 20, 2000,
Kevin filed a cross-motion seeking summary judgment. The motions were heard on November 6,
2000. Donald contended that G.L.1956 § 15-7-16(a) gives only a minor child, not an adopted adult,
the right of intestate inheritance. He argued that it was significant that the Legislature used the term
“child” in enacting § 15-7-16(a) as opposed to using the word “persons” in describing potential
adoptees as provided by § 15-7-4(d). Donald claimed it was natural that the Legislature used the
word “child” instead of “persons” because the primary purpose of the adoption statute was
intended to “promote the welfare of children, not adults, by securing to them the benefits of a home
and parental care.”
Kevin, on the other hand, contended that the Legislature, in enacting our adoption statute, never
intended to distinguish between children adopted during their minority and those adopted as adults.
On December 4, 2000, the Superior Court hearing justice denied Donald's motion for summary
judgment and granted Kevin's cross-motion for summary judgment. The hearing justice concluded
that the Legislature's use of the word “child” in § 15-7-16 was not intended to restrict its meaning
only to a child under the age of majority, but “in fact means the son or daughter of a parent,
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regardless of age.” An order and judgment granting summary judgment in favor of Kevin was
entered on December 14, 2000, and Donald timely appealed.
Analysis
Whether an adopted adult has the right to inherit under the laws of intestate succession from a
deceased adoptive parent is an issue of first impression in Rhode Island and requires an examination
of the relevant statutes.
Section 15-7-16(a) provides for inheritance by adopted children and states in relevant part:
“A child lawfully adopted shall be deemed, for the purpose of inheritance by the child and
his or her descendants from the parents by adoption * * * the child of the parents by
adoption the same as if he or she had been born to them in lawful wedlock.”
Donald argues that § 15-7-16(a) does not include adult adoptees because it specifically refers only to
a “child.” By contrast, § 15-7-4(d), which permits the adoption of adults, provides that “[p]etitions
for adoptions of persons eighteen (18) years or older shall be heard by the probate court of the city
or town in which the petitioners live.” He maintains that had the Legislature intended to include
adult adoptees as eligible for inheritance pursuant to § 15-7-16(a), it would have described adoptees
as “persons” as it did in § 15-7-4(d). Donald asserts that the Legislature, by not amending the
statute, did not intend to give an adopted adult the same rights as an adopted “child.”
Kevin argues that an adopted adult has the same rights as an adopted minor child, and accordingly
maintains that the hearing justice correctly granted summary judgment.
“In construing a statute, this Court's primary ‘task is to establish and effectuate the intent of the
Legislature.’” R & R Associates v. City of Providence Water Supply Board, 765 A.2d 432, 436 (R.I.2001)
(quoting Cardarelli v. DET Board of Review, 674 A.2d 398, 400 (R.I.1996)). “This intent is gleaned from
a careful examination of the ‘language, nature and object of the statute.’” Id. at 436 (quoting
Brouillette v. DET Board of Review, 677 A.2d 1344, 1346 (R.I.1996)). This Court repeatedly has stated
that “when the language of a statute is clear and unambiguous, this Court must interpret the statute
literally and must give the words of the statute their plain and ordinary meanings.” Mottola v. Cirello,
789 A.2d 421, 423 (R.I. 2002) (quoting Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223,
1226 (R.I.1996)).
Adoption was not recognized at common law, and our statutes permitting adoption “create[ ] a
status and relationship unknown to the common law.” Batcheller-Durkee v. Batcheller, 39 R.I. 45, 49, 97
A. 378, 379 (1916). This Court has held that adopted children “are deemed to be heirs of their
adoptive parents, as if they were their natural children.” In re Lisa Diane G., 537 A.2d 131, 132
(R.I.1988) (citing In re Adoption of a Minor Child, 109 R.I. 443, 450, 287 A.2d 115, 118-19 (1972)). This
Court has also held that “such * * * statutes as are intended to integrate adopted children into family
units and thus promote the public interest in the preservation of the family are to be liberally
construed in favor of the adopted child.” Prince v. Nugent, 93 R.I. 149, 168, 172 A.2d 743, 754 (1961).
Upon reviewing the statutory history of adoption in Rhode Island, it is clear that “child” means the
son or daughter of a parent, regardless of age. For example, the adoption statute of 1923 provided
that “[a]ny person may petition the municipal court or probate court for leave to adopt as his child
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any person younger than himself” and allowed the same rights of inheritance for that “child so
adopted.” G.L.1923, ch. 288, §§ 1, 6. More than twenty years later, in 1944, the Legislature
established the Juvenile Court with jurisdiction “[c]oncerning adoption of children.” P.L.1944, ch.
1441, § 14. In doing so, the Legislature amended G.L. 1938, ch. 420 by stating: “1. In all cases
involving persons under eighteen years of age, such term shall mean the juvenile court. 2. In all cases
involving persons eighteen years of age or older, such term shall mean the probate court of the city
or town in which the petitioner resides.” P.L.1944, ch. 1441, § 36B. Thus, jurisdiction over the
adoption of those under eighteen years of age was vested in the Juvenile Court, and the adoption of
those over eighteen years old was vested in the Probate Court. Significantly, the Legislature made no
distinction between the rights of those adopted as minors and those adopted over the age of
eighteen.
When the Juvenile Court was abolished and replaced by the creation of our present Family Court,
P.L.1961, ch. 73, § 14, exclusive jurisdiction over adoption of children under the age of eighteen was
vested in that Court, and the adoption of persons over eighteen remained in the exclusive
jurisdiction of the Probate Court. Throughout the years and various statutory changes since then,
the Legislature has never enacted any provision noting any distinction between the inheritance rights
granted to an adopted person, whether child or adult.
We conclude that the language of § 15-7-16(a) is clear and unambiguous, and therefore we must give
the words of the statute their plain and ordinary meaning. It is clear that the Legislature intended the
term “child” to mean son or daughter of a parent, regardless of age, and that there was no
distinction intended between the inheritance rights of a “child” adopted as a minor and “persons”
adopted as adults.
Conclusion
For the reasons above stated, the plaintiff's appeal is denied and dismissed. The order granting
summary judgment in favor of the defendant is affirmed. The papers of this case are to be returned
to the Superior Court.
Notes and Questions
1. From a public policy perspective, what are the pros and cons of permitting one adult to adopt
another adult? See Jackie Messier, The Inconsistent Inheritance Rights of Adult Adoptees and A Proposal For
Uniformity, 95 Marq. L. Rev. 1043 (Spring 2012).
2. Why do you think that the legislature would permit adult adoptions?
3. What may be some legitimate reasons why a person would want to adopt an adult? See Berston v.
Minnesota Dept. of Public Welfare, 206 N.W.2d 28 (Minn. 1973).
4. Which, if any, restrictions should be placed on a person seeking to adopt an adult?
5. Some jurisdictions that permit adult adoptions have concluded that a person may not adopt his or
her adult lover. Those jurisdictions fail to sanction those adult adoptions because of the sexual
nature of the relationship. Courts often find that it is against public policy to permit the creation of a
170

parent-child relationship between persons who are engaged in a sexual relationship. See Matter of
Adoption of Robert Paul P., 471 N.E.2d 424 (N.Y.2d 1984)(court held that a 57-year-old man could not
adopt a 50-year-old man with whom he shared a homosexual relationship).
Right to inherit through adoptive parents

In re Estate of Brittin, 664 N.E.2d 687 (Ill. 1996)
GOLDENHERSH, J.
Respondent, Mary Ann Buckman, natural daughter of decedent, Stephen Glenn Brittin, and
administrator of his estate, appeals from an order of the circuit court finding petitioners, Deborah J.
Roeder, Linda Brittin, Denise Brittin, Stacie Brittin, and Laura Moore, the natural children of
decedent's adopted son, William Eugene, to be decedent's legal heirs and reopening decedent's
estate.
On appeal, respondent contends the trial court erred in finding petitioners, for purposes of intestate
succession, to be the legal heirs of decedent and in reopening decedent's estate. We affirm.
The facts are undisputed. The record reveals that when William Eugene was about three years of
age, his mother, Estelle Willet, married the decedent, Stephen Glenn Brittin. From age three,
Stephen and Estelle raised William as their son. The couple had one natural child, Mary Ann
Buckman, respondent herein. Estelle Willet Brittin died on July 28, 1975. Shortly thereafter, on
October 20, 1976, Stephen adopted William in an adult adoption proceeding in St. Clair County.
William was 46 years old at the time of the adoption and had five children, petitioners herein. The
adoption decree specifically provides that William was the child of Stephen Glenn Brittin “and for
the purposes of inheritance and all other legal incidents and consequences, shall be the same as if
said respondent had been born to Stephen Glenn Brittin and Estelle Willet Brittin (now deceased) in
lawful wedlock.” William died on May 17, 1979, predeceasing his adoptive father and leaving his five
children as his descendants and heirs.
On February 8, 1993, Stephen died intestate leaving Mary, his natural daughter, and petitioners,
descendants of his adopted son, William, as his heirs. Decedent's intestate estate was opened on
March 10, 1993. The court found respondent to be the sole heir and appointed her administrator of
the estate. The estate was closed on October 4, 1993, with the proceeds going to respondent.
Petitioners were unaware that the administration of decedent's estate was underway without their
participation until December 1993, when they learned that the estate had been closed.
On February 9, 1994, petitioners filed a petition to vacate the order of discharge and order finding
heirship and to reopen the estate. Petitioners alleged in the petition that they are heirs of the
decedent and are entitled to share in decedent's estate as the children of decedent's adopted son.
After a hearing, the trial court entered its order finding petitioners legal heirs of decedent and
reopening the estate. Respondent filed a motion to reconsider, which was denied on January 30,
1995. Respondent appeals.

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I
Respondent contends that petitioners are not descendants of the decedent and may not take, by
representation, their deceased father's share of the decedent's estate. Respondent acknowledges that
pursuant to section 2-4(a) of the Probate Act (755 ILCS 5/2-4(a) (West 1992)), petitioners' father, as
the adopted child of the decedent, is a descendant of his adoptive parent, and had he not
predeceased decedent, he would be entitled to half of decedent's estate. However, defendant argues
that the legislature, in using the term “adopted child” in section 2-4(a) of the Probate Act, intended
to limit intestate succession to the descendants of a child adopted as a minor. Respondent further
asserts that the legislature did not intend to include as descendants of an “adopted child” children
born to the adopted adult prior to that adult's adoption. According to respondent, because
petitioners were already born at the time of decedent's adoption of their father, they are not the
descendants of an “adopted child” and therefore cannot take by representation their deceased
father's share of decedent's estate. We disagree.
The case before us is one of first impression and requires our consideration of the issue of whether
the natural children of an adult adoptee are descendants of the adopting parent for purposes of
inheritance. In considering this issue, we must consider whether the legislature, in enacting the
statute granting an adopted child the status of a descendant of the adopting parent, intended to limit
succession rights of the adoptee's children to the natural children of a child adopted as a minor and
to exclude the natural children born to the adult adoptee prior to his adoption by the adopting
parent.
The distribution of an intestate real and personal estate of a decedent whose spouse is predeceased
but who is survived by his descendants is governed by section 2-1(b) of the Probate Act, which
provides:
“§ 2-1. Rules of descent and distribution. The intestate real and personal estate of a resident
decedent and the intestate real estate in this State of a nonresident decedent, after all just
claims against his estate are fully paid, descends and shall be distributed as follows:
******
(b) If there is no surviving spouse but a descendant of the decedent: the entire estate to the
decedent's descendants per stirpes.” 755 ILCS 5/2-1(b) (West 1992).
Where the decedent is survived by an adopted child, the adopted child may take a share of the
intestate estate as a legal heir of the decedent pursuant to section 2-4(a) of the Probate Act, which
provides:
“§ 2-4. Adopted child and adopting parent. (a) An adopted child is a descendant of the
adopting parent for purposes of inheritance from the adopting parent and from the lineal
and collateral kindred of the adopting parent. For such purposes, an adopted child also is a
descendant of both natural parents when the adopting parent is the spouse of a natural
parent.” 755 ILCS 5/2-4(a) (West 1992).
A cardinal rule of statutory construction “is to ascertain and give effect to the true intent and
meaning of the legislature.” Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 630
172

N.E.2d 820, 822 (Ill. 1994). To determine the intent of the legislature, a court should first consider
the statutory language, for its language best indicates the legislature's intent. Solich, 196 Ill.Dec. at
657, 630 N.E.2d at 822. When the language of the statute is clear, the court must give it effect
“without resorting to other aids for construction.” Solich, 630 N.E.2d at 822. “In applying plain and
unambiguous language, it is not necessary for a court to search for any subtle or not readily apparent
intention of the legislature.” Di Foggio v. Retirement Board of the County Employees Annuity & Benefit Fund
of Cook County, 620 N.E.2d 1070, 1073 (1993).
The Adoption Act (750 ILCS 50/1et seq. (West 1992)) provides for the adoption of an adult as well
as the adoption of minor children. Section 3 of the Adoption Act sets forth the conditions under
which an adult may be adopted, stating:
“§ 3. Who may be adopted. A male or female * * * adult[ ] may be adopted * * * provided * *
* that such adult has resided in the home of the persons intending to adopt him at any time
for more than 2 years continuously preceding the commencement of an adoption
proceeding, or in the alternative that such persons are related to him within a degree set
forth in the definition of a related child in Section 1 of this Act.” 750 ILCS 50/3 (West
1992).
A careful review of the Adoption Act reveals no statutory distinction between an adopted adult and
an adopted minor with respect to the nature of the legal relationship created between the adoptee
and the adopting parent, namely, a parent-child relationship. The adoptee, regardless of his age upon
adoption, attains the status of a natural child of the adopting parents. In re M.M., 619 N.E.2d 702,
708 (Ill. 1993). Likewise, the Adoption Act makes no reference to the rights of an adopted child with
regard to his ability to inherit from his adopting parents. Therefore, for the proper resolution of the
issue before us, we must examine section 2-4(a) of the Probate Act.
Respondent maintains that section 2-4(a) of the Probate Act does not include adult adoptees
because, had the legislature intended to include adopted adult children, it would have changed the
word “child” to “person” so as to include all adopted persons. Respondent argues that the
legislature has amended section 2-4(a) several times and has not made this change and, therefore, the
legislature intended to limit inheritance to minor adopted children. We do not agree with this
contention.
“Where the terms of a statute are not defined by the legislature, courts will assume that they were
intended to have their ordinary and popularly understood meanings, unless doing so would defeat
the perceived legislative intent.” People v. Hicks, 462 N.E.2d 473, 476 (Ill. 1984). Further, in
determining the legislature's intent in using a particular term, “a reference to the subject matter and
the context will ordinarily disclose the sense in which the word is used.” Bartholow v. Davies, 276 Ill.
505, 511, 114 N.E. 1017 (1916).
“There are * * * two meanings which may be given to the word ‘child:’ one an offspring or a
descendant, when a person is spoken of in relation to his parents; another, a person of immature
years. * * * The word ‘child,’ when used with reference to the parents, ordinarily has no reference to
age, but to the relation. When used without reference to the parents, as indicating a particular
individual, it usually bears the meaning of a young person of immature years.” Bartholow, 276 Ill. at
511, 114 N.E. at 1019. (NOTE: Bartholow was decided prior to statutory changes allowing the
adoption of adults.)
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Considering the subject matter and context in which the word “child” is used in section 2-4(a), the
plain language of the statute indicates that the legislature intended to use the word “child” in its
relational sense; referring to the parent-child relationship between the adoptee and the adopting
parent. The word “child,” as used here, cannot be interpreted fairly as meaning a minor, in light of
section 3 of the Adoption Act which permits adult adoptions. Moreover, there is nothing in section
2-4(a) indicating a distinction between the adoptee's status as an adult or a minor at the time of
adoption with regard to the adoptee's classification as a descendant of the adopting parent. The only
qualification set forth in the statute is that the adoptee be legally adopted. Nothing more is required.
Accordingly, petitioner's deceased father is an adopted child of the decedent and, as such, obtained
the right of succession as decedent's legal heir.
III
Respondent next asserts that the children of an adopted adult who were born before the adult's
adoption are not the legal heirs of the decedent because they are not the children of an adopted
adult. Respondent argues, therefore, that petitioners, as already-born children at the time of their
father's adoption, cannot take by representation their predeceased father's share of decedent's estate.
This contention is not persuasive.
As discussed above, section 2-4(a) deems all adopted children to be descendants of the adopting
parent. This provision places the adopted child and the natural child in equivalent positions with
respect to the child's capacity to inherit from an intestate parent. Similarly, the act of adoption itself
accords the adoptee the status of a natural child of the adopting parent. In re M.M., 156 Ill.2d at 62,
189 Ill.Dec. at 7, 619 N.E.2d at 708. As with natural children, the children of the adoptee, by virtue
of the adoption, become the grandchildren of the adopting parent, thereby creating a grandparentgrandchild relationship.
Because section 2-4(a) deems an adopted child the descendant of the adopting parent, it logically
follows that, for purposes of inheritance, the children of the adopted adult are also descendants and
can take as grandchildren of the decedent. Accordingly, if the adopted child predeceases the
adopting parent, leaving children, as is the case here, those children, as grandchildren of the
adopting parent, are entitled to represent their deceased parent and to receive from the adopting
parent's estate the share to which the adopted adult child would have been entitled to receive had he
survived the adopting parent.
We believe this to be the correct reading of section 2-4(a) since section 2-4(a) does not impose any
restrictions or conditions on the ability of the natural children of a predeceased adopted child to
inherit from the estate of the adopting parent. Nor does the provision either expressly or impliedly
state that the adopted child's children must be born subsequent to the adoption in order to be legal
heirs of the adopting parent. Because “the plain meaning of the language used by the legislature is
the safest guide in constructing any [statute],” the court cannot inject provisions not expressly
included or fairly implied by the statute. Munroe v. Brower Realty & Management Co., 565 N.E.2d 32, 38
(Ill. 1990). Further, “the words of a statute must be read in light of the purposes to be served, and
those words must be read to reach a common-sense result.” Munroe, 565 N.E.2d at 38. Our reading
of section 2-4(a) gives effect to the legislative policy of according adopted children a status of
inheritance equivalent to that of natural children. With this legislative purpose in mind, we can read
section 2-4(a) in no other way but as including, as descendants of the decedent, the natural children
174

of an adopted adult. Accordingly, we find that the trial court did not err in finding petitioners to be
the legal heirs of the decedent. As such, petitioners are entitled to represent their deceased parent,
the adopted child of the decedent, and to receive the adopted child's per stirpes share of decedent's
estate.
For the foregoing reasons, the judgment of the circuit court of Madison County is affirmed.
Affirmed.

In re Ellison Grandchildren Trust, 261 S.W.3d 111 (Tex. 2008)
ANGELINI, J.
At issue in this appeal is whether, in creating an inter vivos, irrevocable trust for the “descendants”
of his children, Ray Ellison Sr. intended to include, as beneficiaries, his son’s adopted children, who
were not adopted until they were adults. Because we conclude that Ray Ellison Sr. did not intend to
include persons adopted as adults by his son, we affirm the summary judgment granted by the trial
court.
Background
On March 9, 1982, Ray Ellison Sr. created an inter vivos, irrevocable trust called “the Ray Ellison
Grandchildren Trust.” At the time the Trust was created, Ray Ellison Sr. had two adult children:
Bonnie Ellison (then age 36) and Ray Ellison Jr. (then age 40). Bonnie Ellison had one daughter,
Tracy Egan (now Tracy Egan Calloway) (then age 11). Ray Ellison Jr. had two daughters: Arleene
Ellison (then age 18) and Darleene Ellison (then age 20).
The pertinent language of the Trust provides the following:
At the time of executing this trust instrument, the beneficiaries are well provided for by their
parents. It is the desire of the Grantor that the income of this trust be accumulated and that
the properties from time to time put into the trust shall be invested… Any distributions for
beneficiaries of this trust prior to the termination of the trust shall be solely in the discretion
of the Trustees. However, the Grantor realizes that there may be circumstances arising in
the future which would make it desirable or advisable on the part of the Trustees to make
distributions from this trust prior to the time it terminates. Therefore, the Trustees are
authorized to pay to or for the benefit of the descendants of BONNIE JEAN EGAN and the
descendants of RAY ELLISON JR. (the descendants living at this time are TRACY EGAN,
DARLENE ELLISON AND ARLENE ELLISON) out of income, and if income is
insufficient, out of the principal of this trust, from time to time such sums as are reasonably
needed for their health, including medical, dental, hospital and nursing expenses and
expenses of invalidism, and such sums as are reasonably needed for their maintenance and
support. There shall be no requirement that the same amount be paid for each of such
persons. In determining the amount to be paid to or for the benefit of each of such persons,
the Trustees shall take into consideration such other income or means of support known to
the Trustees that each of them is entitled to receive…

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This trust shall terminate upon the 31st day of December, in the year 2020, and upon
termination, the funds and properties remaining in the trust after paying the expenses of the
trust shall be distributed as follows:
A. FIFTY PERCENT (50%) to the descendants of BONNIE JEAN EGAN, per
stirpes, and if there be none, to the descendants of RAY ELLISON, JR., per stirpes.
B. FIFTY PERCENT (50%) to the descendants of RAY ELLISON, JR., per stirpes,
and if there be none, to the descendants of BONNIE JEAN EGAN, per stirpes.
In the event the above named persons are all deceased and none of them have left living
descendants, the funds and properties remaining in the trust shall be distributed to one or
more charitable organizations in which contributions are then deductible under section
642(c) and 2055(e) of the Internal Revenue Code of 1954 in such shares as the Trustees may
designate. (emphasis added).
In 1989, Ray Ellison Jr. divorced his first wife, to whom he had been married for thirty-two years.
In 1995, he remarried.
In 1998, sixteen years after the Trust was created, Ray Ellison Jr.’s father, Ray Ellison Sr., was found
to be incapacitated by a probate court in Bexar County. He died on October 16, 2005. Ray Ellison
Jr.’s sister, Bonnie Ellison, was designated by the probate court as Guardian of Ray Ellison Sr.’s
Person, and Frost National Bank was appointed Guardian of his Estate.
In 2003, twenty-one years after the Trust was created, Ray Ellison Jr. adopted the adult children of
his second wife: Aaron Lindner (then age 39), Jeffrey Lindner (then age 37), and Marc Lindner (then
age 36) (“the Lindners”). Immediately after their adoption, the Lindners moved for an accounting
of the Trust. The Trustees, however, refused to provide an accounting and filed a declaratory
judgment action requesting that the probate court “determine whether the Lindners are beneficiaries
of the Trust and therefore entitled to an accounting.” In response, the Lindners filed an answer and
counterclaim for declaratory judgment, requesting that the court declare them beneficiaries of the
Trust.
Darleene and Arleene Ellison then joined the lawsuit and filed an answer to the Trustee’s original
petition for declaratory judgment and an answer to the Lindners’ counterclaim for declaratory
judgment. They also filed their own original counterclaim for declaratory judgment. They alleged
that their father’s adoption of the Lindners was a “sham designed by” their father and the Lindners
in an attempt to give the Lindners standing to make claims against the Trust, based on their
contention that they are now “descendants” of their father. They also alleged that their grandfather
did not intend for the term “descendants” to include any person adopted as an adult when he
executed the Trust on March 9, 1982. Therefore, they requested the trial court declare that the term
“descendant” as used in the Trust does not include those persons adopted as an adult and,
specifically, does not include the Lindners. In their second amended answer, Arleen and Darleene
Ellison also pled affirmative defenses. They alleged that the Lindners are “equitably estopped from
claiming to be beneficiaries of the Trust as a result of their participation in and/or attempt to benefit
from the wrongful use of the adult adoption statute to divert Trust assets to individuals who would
otherwise have no colorable claim or right to those assets.” They alleged that the Lindners did not
come to the court with “clean hands” and that their “claims to be beneficiaries of the Trust are
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barred because it is contrary to public policy of Texas for persons to use the adult adoption statutes
to divert Trust assets to individuals who would otherwise have no colorable claim or right to those
assets.”
Tracy Egan Calloway also joined the litigation and filed an answer to the original petition for
declaratory judgment and answer to the Lindners’ counterclaim for declaratory judgment, bringing
the affirmative defenses of fraud, constructive fraud, illegality, and estoppel as well as the equitable
defense of unclean hands.
The Lindners then moved for partial summary judgment, arguing that they are beneficiaries of the
Trust as a matter of law, Arleene and Darleene Ellison responded by filing a cross-motion for partial
summary judgment, arguing that the Lindners are not beneficiaries of the Trust as a matter of law.
The trial court denied the Lindners' motion and granted Arleene and Darleene Ellisons' motion. In
its order, the trial court determined as a matter of law the following:
(1) the particular language in the March 9, 1982, Ray Ellison Grandchildren Trust [that]
identifies or refers to the Trust beneficiaries as “descendants of BONNIE JEAN EGAN”
and “the descendants of RAY ELLISON JR.” does not include any person whom Bonnie
Jean Egan or Ray Ellison Jr. has adopted, or may in the future adopt, if such adopted person
was or is an adult, over the age of majority under Texas law, at the time of said adoption;
(2) such trust language specifically does not include Aaron Lee Lindner, Jeffrey Scott
Lindner, and Marc Tecelle Lindner (“the Lindners”); and
(3) the Lindners are not Trust beneficiaries and are not entitled to an accounting pursuant to
TEXAS TRUST CODE §§ 113.151, 113.152.
Although the trial court denied the Lindners' motion for partial summary judgment, it did grant their
motion to exclude certain summary judgment evidence submitted by Darleene and Arleene Ellison.
Specifically, the trial court excluded Ronald Habitzreiter's affidavit and any extrinsic evidence of the
intent of Ray Ellison Sr. when executing the Trust.
Also in its order, the trial court noted that the only remaining issues were those related to attorneys'
fees, expenses, and costs. The Trustees, Darleene and Arleene Ellison, Tracy Egan Calloway, and the
Lindners all moved for attorneys' fees, expenses, and costs. In its final judgment, the trial court
granted all these motions and ordered the parties' attorneys' fees to be paid from the Trust.
The Lindners have appealed the trial court's determination that they are not beneficiaries of the
Trust. The Trustees have appealed the trial court's award of attorneys' fees, costs, and expenses to
the Lindners. And, Tracy Egan Calloway brings a cross-issue, arguing that in the event we reverse
the trial court's order, we should not reverse and render judgment in favor of the Lindners because
they did not negate her affirmative defenses of fraud, constructive fraud, illegality, and estoppel as
well as the equitable defense of unclean hands.
Declaratory Judgment/Summary Judgment

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Rules of Construction
The same rules of construction apply to both wills and trusts. See Eckels, 111 S.W. 3d at 694; Hurley,
98 S.W. 3d at 310. In interpreting a will or a trust, we ascertain the intent of the testator or grantor.
See Eckels, 111 S.W. 3d at 694; Hurley, 98 S.W. 3d at 310. We do so from the language used within
the four corners of the instrument. Eckels, 111 S.W.3d at 694; see Shriner's Hosp. v. Stahl, 610 S.W.2d
147, 151 (Tex.1980) (applying four-corners rule to construe a will). If this language is unambiguous
and expresses the intent of the grantor, we need not construe the trust instrument because “it speaks
for itself.” Eckels, 111 S.W.3d at 694; Hurley, 98 S.W.3d at 310; see Frost Nat'l Bank v. Newton, 554
S.W.2d 149, 153 (Tex.1977) (“ ‘No speculation or conjecture regarding the intent of the testatrix is
permissible where, as here, the will is unambiguous, and we must construe the will based on the
express language used therein.’ ”). Thus, we do not focus on what the grantor intended to write but
the meaning of the words he actually used. San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639
(Tex.2000). That is, we must not redraft a trust instrument to vary or add provisions “under the
guise of construction of the language” of the trust to reach a presumed intent. Id.
In determining the grantor's intent from the four corners of the trust instrument, we carefully
examine the words used and, if unambiguous, do not go beyond specific terms in search of the
grantor's intent. Id. Thus, when the language of a trust instrument is unambiguous, extrinsic
evidence may not be introduced to show that the grantor intended something outside of the words
used. Id. And, when the intent of the grantor is unambiguous, his intent controls even if it conflicts
with applicable statutes. See Vaughn v. Vaughn, 161 Tex. 104, 337 S.W.2d 793, 796 (1960) (explaining
that statutes “may be considered as an aid to the construction of a will” but “cannot control or
defeat a will's true construction”).
If, on the other hand, the meaning of the instrument is uncertain or “reasonably susceptible to more
than one meaning,” the instrument is ambiguous. Eckels, 111 S.W.3d at 694 (quoting Myrick v. Moody,
802 S.W.2d 735, 738 (Tex.App.-Houston [14th Dist.] 1990, writ denied)). Ambiguity can be either
patent or latent. Eckels, 111 S.W.3d at 695; see In re Estate of Brown, 922 S.W.2d 605, 608-09
(Tex.App.-Texarkana 1996, no writ). A patent ambiguity arises on the reading of the trust from the
words themselves. Eckels, 111 S.W.3d at 695; In re Brown, 922 S.W.2d at 608. A latent ambiguity
exists when the trust appears to convey a sensible meaning on its face but cannot be carried out
without further clarification. Eckels, 111 S.W.3d at 695; see Nat'l Union Fire Ins. Co. v. CBI Indus., Inc.,
907 S.W.2d 517, 520 n. 4 (Tex.1995) (explaining latent ambiguity would exist if a contract called for
goods to be delivered to “the green house on Pecan Street,” but there were in fact two green houses
on Pecan Street).
Where there is latent or patent ambiguity, a court may admit extrinsic evidence to show the grantor's
intent. Eckels, 111 S.W.3d at 696; In re Estate of Cohorn, 622 S.W.2d 486, 487-88 (Tex.App.-Eastland
1981, writ ref'd n.r.e.); see Stewart v. Selder, 473 S.W.2d 3, 7 (Tex.1971) (“[W]e have stated on several
occasions that where the intention of the testator is not clearly expressed by the language of the will,
it may be found by looking to the provisions of the instrument as a whole and to the circumstances
surrounding its execution.”). Although the Texas Supreme Court has, in the past, stated that a
“court may always receive and consider evidence concerning the situation of the [grantor], the
circumstances existing when the [trust] was executed, and other material facts that will enable the
court to place itself in the [grantor]'s position at the time,” Lang, 35 S.W.3d at 640 (quoting Stewart v.
Selder, 473 S.W.2d 3, 7 (Tex.1971)), the supreme court explained in 2000 that “this broad approach
to the admissibility of extrinsic evidence applies only when a term is open to more than one
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construction.” Lang, 35 S.W.3d at 639 (citing Lehman v. Corpus Christi Nat'l Bank, 668 S.W.2d 687,
689 (Tex.1984)). Thus, extrinsic evidence may only be considered when the terms of the instrument
are ambiguous.
Finally, in interpreting the provisions of a trust instrument, if possible, we must construe the
instrument to give effect to all provisions so that no provision is rendered meaningless. Eckels, 111
S.W.3d at 694. And, in interpreting the trust, we look to the law as it existed at the time the trust was
executed. Hagaman v. Morgan, 886 S.W.2d 398, 400 (Tex.App.-Dallas 1994, writ denied).
Determining the Grantor's Intent
Using the above rules of construction, we must determine what Ray Ellison Sr. meant in 1982 when
he stated that he wanted the Trust to benefit the descendants of his son, Ray Ellison Jr., and his
daughter, Bonnie Egan.
In the Trust, Ray Ellison Sr. identified the descendants of his son and daughter parenthetically: “the
descendants living at this time are TRACY EGAN, DARLENE ELLISON AND ARLENE
ELLISON.” Further, Ray Ellison Sr. stated in the Trust that at the time the Trust was executed “the
beneficiaries are well provided for by their parents.” Arleene and Darleene Ellison, and Frost Bank,
point to these two phrases used by Ellison Sr. in the Trust and argue that we can determine Ray
Ellison Sr.'s intent from the four corners of the trust instrument because these phrases show Ray
Ellison Sr.'s unambiguous intent.
Although the Lindners disagree that the above two phrases indicate Ray Ellison Sr.'s unambiguous
intent, they also argue that the words used in the Trust are unambiguous. According to the Lindners,
“descendants” is an unambiguous term with a specific legal meaning that we can determine by using
family law statutes in existence at the time the Trust was created as a constructive aid.
In contrast, Tracy Egan Calloway argues that “descendants” is an ambiguous term and that the trial
court erred in not allowing her to admit extrinsic evidence of Ray Ellison Sr.'s intent.
As explained below, we believe that “descendants” is not an ambiguous term and that the family
statutes in existence in 1982 should be used as a constructive aid of Ray Ellison Sr.'s intent.
1. Does Ray Ellison Sr.'s use of the phrase “descendants living at this time” indicate his clear intent
to exclude adult adoptees?
Arleene and Darleene Ellison argue that Ellison Sr.'s intent is clear from the four corners of the trust
instrument. According to Arleene and Darleene, by parenthetically identifying Tracy Egan, Darleene
Ellison, and Arleene Ellison as descendants living at this time, Ellison Sr. indicated that at the time of the
creation of the Trust, the only descendants living were Tracy Egan, Darleene Ellison, and Arleene
Ellison. Thus, they argue that because the Lindners were living at the time the Trust was created,
Ellison Sr. could not possibly have intended to include them. If Ellison Sr. had wanted the Trust to
benefit a class of persons like the Lindners (those being adopted as adults), he would not have
specified that the only beneficiaries living were Tracy, Darleene, and Arleene.
Frost National Bank, Independent Executor of the Estate of Ray Ellison Sr., agrees with Arleene
and Darleene's argument. Frost Bank also emphasizes that Ellison Sr. specifically named the persons
179

whom he considered to be “descendants” and who were living at the time the Trust was executed in
1982. Frost Bank points out that Ellison did not use language like “the descendants identifiable at
this time” or “the descendants ascertainable at this time.” Instead, he specifically stated “the
descendants living at this time.” According to Frost Bank, this “language demonstrates that Mr.
Ellison contemplated that the only possible additional descendants would be persons born after
1982. This, in itself, excludes the Lindners, each of whom was born well before 1982.”
The Lindners respond by arguing that they are not excluded by the language “descendants living at
this time” because although they were living at the time, they were not descendants at the time.
We believe that Ray Ellison Sr.'s parenthetical identification of Tracy, Darleene, and Arleene as the
only descendants living at this time was for identification purposes and does not indicate his clear
intent to exclude adult adoptees.
2. Does Ray Ellison Sr.'s use of the phrase “[a]t the time of executing this trust instrument, the
beneficiaries are well provided for by their parents,” indicate his intent to exclude adult adoptees?
Arleene and Darleene Ellison also argue that by stating that “[a]t the time of executing this trust
instrument, the beneficiaries are well provided for by their parents,” Ellison Sr. indicated his intent to benefit
his grandchildren, not other persons who had been raised as someone else's grandchildren for
decades after the Trust was created. They emphasize that the language “the beneficiaries are well
provided for by their parents,” indicates Ellison Sr.'s intent to benefit only those persons then in a
parent-child relationship with, and entitled to receive parental support from, Bonnie Egan and Ray
Ellison Jr. They argue that the Lindners were not such people.
Frost Bank also emphasizes that the statement regarding the beneficiaries, at the time of the Trust's
execution, being “well provided for by their parents” demonstrates Ellison's intent that the trust
beneficiaries be only the named biological grandchildren and later-born biological grandchildren.
According to Frost Bank, had Ellison “intended to include persons born before 1982 but not
adopted until afterward, he [would] not have opined on whether those persons were, on March 9,
1982, ‘well provided for by their parents.’ ”
We disagree. At the time the Trust was created, Tracy, Arleene, and Darleene were the only
beneficiaries to the Trust. Thus, the sentence, “[a]t the time of executing this trust instrument, the
beneficiaries are well provided for by their parents,” refers only to Tracy, Arleene, and Darleene.
3. Is the term “descendants” ambiguous so that extrinsic evidence should have been admitted?
Tracy Egan Calloway argues that “descendants” is not an unambiguous term that the trial court
could construe from the instrument itself and the law but instead is ambiguous. According to
Calloway, “descendants” as used by Ellison Sr. could have had “at least four possible meanings”:
1. Ellison Sr. could have intended the term “descendants” to include only his children's and
grandchildren's biological offspring;
2. Ellison Sr. could have intended “descendants” to have a more expansive meaning so as to include,
in addition to his biological offspring, individuals who were adopted as minors by his biological
children or grandchildren, while excluding individuals who were adopted as adults;
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3. Ellison Sr. could have intended “descendants” to have an even more expansive meaning so as to
include not only individuals who were adopted as minors but also individuals who were adopted as
adults as long as they enjoyed an in loco parentis relationship with his biological children and
grandchildren while the adoptees were minors-that is, he could have intended that adult adoptees
who actually lived in the homes of his biological children or grandchildren for a period of time
while they were minors and who later were adopted as adults be considered beneficiaries, but not
adult adoptees who never enjoyed an in loco parentis relationship; and
4. Ellison Sr. could have intended “descendants” to include in addition to biological offspring any
adoptee, minor or adult, regardless whether the adoptee ever actually enjoyed an in loco parentis
relationship with his biological children or grandchildren.
Thus, because the term “descendants” is ambiguous, Calloway argues that the trial court should have
considered extrinsic evidence of what Ellison Sr. intended by his use of “descendants.”
In San Antonio Area Found. v. Lang, 35 S.W.3d 636, 640 (Tex.2000), the supreme court considered
when extrinsic evidence may be admitted to explain a term. First, the court emphasized that when a
testatrix's intent is apparent on the face of the will, extrinsic evidence is not admissible to show a
contrary meaning. Id. It explained that extrinsic evidence is admissible only when the testatrix's will
uses a word that is susceptible to more than one construction. Id. at 641. Thus, the court explained
that in Stewart v. Selder, 473 S.W.2d 3, 7 (Tex.1971), extrinsic evidence was admissible to explain the
testatrix's intent in using the term “cash,” because “cash” “could refer to either dollar bills or other
forms of currency, like checks or securities.” Lang, 35 S.W.3d at 641. However, the testatrix in the
case before it had used the term “real property.” Id. The court explained that extrinsic evidence was
not admissible to explain the testatrix's intent in using the term “real property” because real property
has a settled legal meaning. Id. That is, “real property” is “a term with a specific meaning ascribed to
it in law.” Id. Thus, the testatrix's use of the term in her will was unambiguous and the trial court did
not err in excluding “any sort of background, historical extrinsic evidence to explain” the testatrix's
intent in using the term. Id.
Like “real property,” we believe that “descendants” is a term with a specific meaning ascribed to it in
law: “one who follows in lineage, in direct (not collateral) descent from a person.” BLACK'S LAW
DICTIONARY 476 (8th ed. 2004). Examples of descendants are “children and grandchildren.” Id.
Thus, the term “descendants” is not ambiguous. A descendant of Ray Ellison Jr. would be any
person who follows in lineage, in direct descent from him. An example of such a “descendant”
would be his “child.” Thus, the issue becomes whether one adopted as an adult is considered a
“child” of his adopted father with respect to third persons as the law existed in 1982 when the Trust
was created.
4. Should 1982 Family Law statutes be used as a constructive aid of Ray Ellison Sr.'s intent?
In support of their argument that they are included within Ellison Sr.'s use of the term
“descendants,” the Lindners emphasize that as the law existed in 1982, when the Trust was created,
descendants included those adopted as adults. According to the Lindners, pursuant to 1982 Texas
Family Law statutes, a person adopted as an adult is a “child” and thus a descendant of his adopted
father. In response to the Lindners' argument, Arleene and Darleene Ellison argue that we should
not consider 1982 Family Law statutes because a statute cannot contradict Ellison Sr.'s unambiguous
intent.
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It is true that the grantor's intent controls and that a statute cannot control or defeat a trust's “true
construction.” Vaughn, 337 S.W.2d at 796. Thus, the question is not whether persons adopted as
adults should be beneficiaries of the Trust pursuant to a statute, but whom Ellison Sr. intended to
designate as beneficiaries when he created the Trust. However, while a statute cannot defeat the
clear intent of the grantor, a statute “may be considered as an aid to the construction” of a trust. Id.
By interpreting the state of law with regard to “descendants” in 1982, we would not be stating that
the law required persons adopted as adults to be beneficiaries of the Trust. Instead, we would be
recognizing that Ellison Sr. decided to use the specific word “descendants” to define his
beneficiaries and that he did not define “descendants” in the trust instrument itself. Thus, we
presume that Ellison Sr., by using the word “descendants,” knew what the law in 1982 considered
“descendants” to encompass. See San Antonio Area Found., 35 S.W.3d at 640.
5. With respect to adopted children, what did “descendants” mean in 1982?
a. Progression of Adoption Laws-1931 Statute
Before 1931, adopted persons had no right of inheritance except from the estate of the party
adopting him. Armstrong v. Hixon, 206 S.W.3d 175, 180 (Tex.App.-Corpus Christi 2006, pet. denied);
Fletcher v. Persall, 75 S.W.2d 170, 170 (Tex.Civ.App.-Austin 1934, writ ref'd). In 1931, the Legislature
enacted the following statute (formerly Article 46a of the Revised Civil Statutes), entitled “Adoption
of Minor Children,” providing for the adoption of minor children:
When a child is adopted in accordance with the provisions of this Article, all legal relationships and
all rights and duties between such child and its natural parents shall cease and terminate, provided
however, that nothing herein shall prevent such adopted child from inheriting from its natural
parent; all adopted children shall inherit from the adopted as well as its natural parents. Said child
shall thereafter be deemed and held to be, for every purpose, the child of its parent or parents by adoption as
fully as though born of them in lawful wedlock. Said child shall be entitled to proper education, support,
maintenance, nurture and care from said parent or parents by adoption, and shall inherit from said
parent or parents by adoption, and as the child of said parents or parents by adoption, as fully as
though born to them in lawful wedlock; subject, however, to the provisions of this Act. Said parent
or parents by adoption shall be entitled to the services, wages, control, custody and company of said
adopted child, and shall, as such adopting parent or parents, inherit from and as the parent or
parents of said adopted child as fully as though the child had been born to them in lawful wedlock;
provided, however, that upon the death of such adopted child, while unmarried and without issue of
its body, all its property, of whatsoever kind and nature, shall pass and descend to the adopting
parent or parents, if living, but if such adopting parent or parents be not living, then all such
property shall pass and descend to the next of kin of said adopting parent or parents according to
the then law of descent and distribution, and not to the next of kin of such adopted child; and
provided that.... Acts of 1931, 42nd Leg., p. 300, ch. 177, § 9 (emphasis added).
This 1931 statute “did not have the sweeping effect suggested by the language quoted above.” Cutrer
v. Cutrer, 162 Tex. 166, 345 S.W.2d 513, 516 (1961). “[T]he legal relationship established by the 1931
Act was effective only ‘as between the adopting parent and the adopted child.’ ” Id. Thus, “[w]here
the adopting parent or his estate was concerned, a child adopted under the provisions of the statute
had all of the rights of a natural child.” Id. However, “as to all persons other than the adoptive
parents, an adopted child's status was the same as it would have been if no act of adoption had
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occurred.” Id. Therefore, “[t]here is no basis then for saying that the status conferred by the 1931
Act requires that an adopted child be regarded as a natural child of the adopter for the purpose of
construing instruments executed by third persons.” Id. at 516-17. This rule is called the “stranger to
the adoption rule.” According to the rule, adopted persons could inherit from their adoptive parents
but not through them; that is, they could not inherit from one who was a “stranger to the adoption.” See
id.
b. 1947 Statute
In 1947, the Legislature enacted a statute providing for the adoption of adults in the same manner as
was then provided for adopting minors. See Act of 1947, 50th Leg., R.S., ch. 428, 1947 Tex. Gen.
Laws 1009. Thus, the statute tracked the above language providing for the adoption of minor
children. However, as noted, the supreme court applied the “stranger to the adoption rule” to that
statute. See Cutrer, 345 S.W.2d at 516. Therefore, the stranger to the adoption rule applied to this
1947 statute providing that those adopted as adults will “be deemed and held to be, for every purpose,
the child of [his] parent or parents by adoption as fully as though born of them in lawful wedlock.” See Act of 1947,
50th Leg., R.S., ch. 428, 1947 Tex. Gen. Laws 1009.
c. 1951 Statute
In 1951, the Legislature amended the adoption statute relating to minors:
When a minor child is adopted in accordance with the provisions of this Article, all legal
relationship and all rights and duties between such child and its natural parents shall cease
and terminate, and such child shall thereafter be deemed and held to be for every purpose
the child of its parent or parents by adoption as fully as though naturally born to them in
lawful wedlock. Said child shall be entitled to proper education, support, maintenance,
nurture and care from said parent or parents by adoption, and said parent or parents by
adoption shall be entitled to the services, wages, control, custody and company of said
adopted child, all as if said child were their own natural child. For purposes of inheritance
under the laws of descent and distribution such adopted child shall be regarded as the child
of the parent or parents by adoption, such adopted child and its descendants inheriting from
and through the parent or parents by adoption and their kin the same as if such child were
the natural legitimate child of such parent or parents by adoption, and such parent or parents
by adoption and their kin inheriting from and through such adopted child the same as if
such child were the natural legitimate child of such parent or parents by adoption. The
natural parent or parents of such child and their kin shall not inherit from or through said
child, but said child shall inherit from and through its natural parent or parents. Nothing
herein shall prevent anyone from disposing of his property by will according to law. Such
adopted child shall be regarded as a child of the parent or parents by adoption for all other purposes as well,
except that where a deed, will, or other instrument uses words clearly intended to exclude children by adoption,
such adopted child shall not be included in such class....
Acts of 1951, 52nd Leg., ch. 249, § 3, 1951 Tex. Gen. Laws 388, 390 (emphasis added).
This is the statute that abrogated the stranger to the adoption rule with respect to those adopted as
minors. See Ortega v. First Republic Bank Fort Worth, N.A., 792 S.W.2d 452, 454 (Tex.1990) (“Before
1951, the general rule in Texas was that an adopted child was not entitled to property conveyed or
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devised to the natural children of the adoptive parent unless the intent to include was indicated by
additional language or circumstances. This presumption of exclusion was changed by the passage of
a 1951 amendment to the adoption statutes.”). However, the Legislature did not amend the adult
adoption statute. Thus, the 1951 amendment, with respect to adult adoptees, did not abrogate the
stranger to the adoption rule.
d. 1973 Statute
In 1973, the Legislature adopted the Texas Family Code and codified the following child adoption
statute:
Subchapter A. Adoption of Children
Sec. 16.09. Effect of Adoption Decree
(a) On entry of a decree of adoption, the parent-child relationship exists between the
adopted child and the adoptive parents as if the child were born to the adoptive
parents during marriage.
(b) An adopted child is entitled to inherit from and through his adoptive parents as
though he were the natural child of the parents.
(c) The terms “child,” “descendant,” “issue,” and other terms indicating the
relationship of parent and child include an adopted child unless the context or express
language clearly indicates otherwise.
It also codified a statute relating to the adoption of adults:
Subchapter B. Adoption of Adults
Sec. 16.55. Effect of Adoption Decree
On entry of the decree of adoption, the adopted adult is the son or daughter of the
adoptive parents and of the natural parents, for inheritance purposes. However, the
natural parents may not inherit from the adopted adult.
Act of 1973, 63d Leg., R.S., ch. 543, § 16.55, 1973 Tex. Gen. Laws 1411.
e. 1975 Statute
In 1975, the Legislature amended the statute relating to adoption of adults (it did not amend the
statute relating to the adoption of minor children):
Sec. 16.55. Effect of Adoption Decree
On entry of the decree of adoption, the adopted adult is the son or daughter of the
adoptive parents for all purposes, and of the natural parents for inheritance purposes
only. However, the natural parents may not inherit from or through the adopted adult.
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Acts of 1975, 64th Leg., R.S., ch. 475, § 43, 1975 Tex. Gen. Laws 1253, 1270 (emphasis added). This
1975 statute is the law that was in effect at the time the Trust was created. This is also the
amendment that the Lindners claim abrogated the stranger to the adoption rule with respect to
adults. They argue that the phrase “for all purposes” means that the adopted adult can inherit through
his adoptive parents.
Arleene and Darleene Ellison, in contrast, argue that this amendment did not abrogate the stranger
to the adoption rule and point to the differences between the child and adult statutes. They
emphasize that the minor adoption statute, in subsection (c), contained an “inclusionary
presumption,” which expressly abrogated the stranger to the adoption rule. However, the adult
version contained no such inclusionary presumption. Thus, according to Arleene and Darleene, the
Legislature must have intentionally not included such an “inclusionary presumption” in the adult
statute. And, by not including such a presumption, the common-law exclusionary presumption
known as the stranger to the adoption rule remained in effect for adult adoptees. We agree with
Arleene and Darleene Ellison.
We find it significant that the Legislature failed to include an inclusionary presumption in the 1975
statute. And, we find the Lindners' argument that the language “for all purposes” abrogated the
stranger to the adoption rule unpersuasive. When it enacted this statute, the Legislature knew that
the Texas Supreme Court had interpreted statutory language like “for all purposes” as not
abrogating the stranger to the adoption rule. See Cutrer, 345 S.W.2d at 516 (interpreting statutory
language that included the phrase “for every purpose” to apply only to the adoptive parent and child
and to not allow an adoptive child to inherit “through” the adoptive parent). Thus, had it wanted to
abrogate the stranger to the adoption rule with respect to adults, the Legislature would have
explicitly included an inclusionary presumption. See Foster v. Foster, 641 S.W.2d 693, 695 (Tex.App.Fort Worth 1982, no writ) (“Even now [in 1982], it is not the law of this State that one who was an
adult when adopted has entitlement under the laws of descent and distribution to recover as a child
from anyone other than his adoptive parents.”). We believe the Legislature did so in 1995 when it
amended the statute to state that an adopted adult “is entitled to inherit from and through the adopted
adult's adoptive parents as though the adopted adult were the biological child of the adoptive
parents.” Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, sec. 162.507(b), 1995 Tex. Gen. Laws 113,
238 (current version at TEX. FAM. CODE ANN. 162.507 (Vernon Supp.2005)) (emphasis added);
see Armstrong v. Hixon, 206 S.W.3d 175, 180-81 (Tex.App.-Corpus Christi 2006, pet. denied) (“Not
until 1995 did the Legislature modify the adult adoption statute to specifically provide that an
adopted adult might inherit ‘from and through’ the adopted adult's adoptive parents.”).
The Lindners, however, point to a 1984 Texas Supreme Court case, decided two years after Ray
Ellison Sr. created the Trust: Lehman v. Corpus Christi National Bank, 668 S.W.2d 687 (Tex.1984).
They argue that the following language in Lehman supports their assertion that the 1975 statute
abrogated the stranger to the adoption rule with respect to adults:
Keith Lehman would have us announce a presumption that adopted adults are not included
within the beneficiaries of a class gift in a testamentary instrument of someone other than
the adoptive parents. We decline to do so. This presumption would be a form of the
“stranger to the adoption” rule, which has now been rejected in Texas, see Vaughn v. Gunter,
458 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
a majority of American jurisdictions considering the question. See Elliott v. Hiddleson, 303
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N.W.2d 140, 144 (Iowa 1981).
Id. at 688. We, however, find Lehman distinguishable.
The will at issue in Lehman specifically included adoptees as descendants, with no age distinction
between children and adults. Id. at 688. Thus, the language from Lehman upon which the Lindners
rely to support their claim is mere dicta. Further, in making its assertion that the stranger to the
adoption rule had already been eliminated by the 1951 amendment to the statute, the Lehman court
relied upon a court of appeals decision. See id. That case, Vaughn v. Gunter, 458 S.W.2d at 524-25,
dealt with the issue of whether an individual who had been adopted as a minor was included in the
class defined as “children” of his adopted father. In holding that the minor adoptee was a child of
his adopted father, the Vaughn court relied on the 1951 statute relating to minors that clearly abrogated
the stranger to the adoption rule with respect to minor. The Vaughn court did not address the 1951
statute concerning the adoption of adults. Therefore, we find Lehman and its reliance on Vaughn
distinguishable from this case.
Thus, by using the 1975 statute as a constructive aid, we conclude that when Ray Ellison Sr. created
the Trust in 1982, he did not intend the term “descendants” to include those persons adopted as
adults.
Conclusion
Because the trial court did not err in concluding that Ray Ellison Sr. intended the term
“descendants” to not include those persons adopted as adults and because it did not abuse its
discretion in awarding attorneys' fees, we affirm, as modified, the judgment of the trial court.
SIMMONS, J., dissenting.
In this case, the old adage “bad facts make bad law” is particularly true. The record paints an
unattractive picture of Ray Ellison, Jr. (“Ray Jr.”) and the Lindner boys and the motive surrounding
their adoption. The record before the trial court was replete with evidence that the adoption of the
adult Lindner boys by Ray Jr. was merely a way in which Ray Jr. could attempt to exercise control
over his father's trust. There was evidence that Ray Jr. was not only estranged from his father when
the trust was created, but estranged from his daughters and niece, the beneficiaries of the trust. The
issue in this appeal is whether we (1) apply the law and reward what could be characterized as
unworthy beneficiaries or (2) neglect established precedent and impose our own intent on the inter
vivos, irrevocable trust to exclude the unworthy contenders to the Ray Ellison, Sr. fortune. I choose
the former and thus, must respectfully dissent.
I agree with much of the majority opinion; we part ways, however, over the status of adopted adults
in 1982 and whether the “stranger to the adoption” rule was in effect in 1982, when the Trust was
created. I believe that in 1982, adopted adults were the sons or daughters of their adoptive parents
“for all purposes,” including inheriting from and through the adoptive parents.
The controlling law in effect in 1982, when the Trust was created, provided:
On entry of the decree of adoption, the adopted adult is the son or daughter of the adoptive
parents for all purposes, and of the natural parents for inheritance purposes only. However,
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the natural parents may not inherit from or through the adopted adult.
Acts of 1975, 64th Leg., R.S., ch. 475, § 43, 1975 Tex. Gen. Laws 1253, 1270.
The meaning of the statute is clear-that adopted adults are the sons or daughters of their adoptive
parents “for all purposes.” Although Arleene and Darleene Ellison argue that this 1975 amendment
did not abrogate the stranger to the adoption rule, the Texas Supreme Court determined otherwise
in Lehman v. Corpus Christi Nat'l Bank, 668 S.W.2d 687 (Tex.1984). In Lehman, the question before the
court was whether an adopted adult qualified as a “descendant” of his adoptive father within the
terms of his grandfather's will. Id. at 688. The will expressly defined “descendants” as including “the
children of the person designated, and the issue of such children, and such children and issue shall
always include those who are adopted.” Id. (emphasis added). Thus, those adopted as children were
unambiguously defined as descendants, but the issue was whether “children ... who are adopted”
included those adopted as adults. The supreme court reasoned that adopted adults were included
because the will's definition of “descendants” drew no distinction between natural and adopted
children, “if adopted adults are incapable of taking, adult natural children would likewise be excluded
from the class of beneficiaries.” Id.
While I agree that the language in Lehman is dicta and that it was decided two years after the Trust
was created, I cannot ignore that the supreme court in Lehman interpreted the 1975 statute at issue as
having abrogated the stranger to the adoption rule. The supreme court goes on to point out that the
stranger to the adoption rule had likewise been rejected in a majority of American jurisdictions and
was “contrary to the public policy of this state.” Id. Although the application of Lehman to this case
may seem to cause an inequitable result, the failure to recognize that the stranger to the adoption
rule was abrogated in 1975 may have serious unintended consequences. Any practitioner reading
Lehman prior to this decision would have concluded that the stranger to the adoption rule was
abrogated by the 1975 statute and advise her clients accordingly. Yet, under the reasoning of the
majority opinion, the stranger to the adoption rule, referred to as bad public policy under Lehman,
was not abrogated until some twenty years later, in a recodification of the statute in 1995. Lehman
has been the law in this area for the past twenty-five years and I would apply it to this case.
Thus, by using the 1975 statute as a constructive aid, I cannot conclude that Ray Ellison, Sr.
intended to preclude adult adoptees as “descendants” of his son, Ray Ellison, Jr. Therefore, I cannot
agree to affirm the trial court's summary judgment. This case presents a very unfortunate family
dispute. The record reflects that the Lindner boys were adopted by Ray Jr., in part, to allow Ray Jr.
to exercise control over his father's trust. Although the Lindner boys do not look like worthy
beneficiaries, I would not change twenty-five years of law to refute their claims.
4.3.3

Stepparent Adoption

Uniform Probate Code § 2-114 Parent and Child Relationship
(b)

An adopted individual is the child of his [or her] adopting parent or parents and not of his
[or her] natural parents, but adoption of a child by the spouse of either natural parent has no
effect on (i) the relationship between the child and that natural parent or (ii) the right of the
child or a descendant of the child to inherit from or through the other natural parent.
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Uniform Adoption Act § 4-103 (1994)
(b)

An adoption by a stepparent does not affect:
(3)

the right of the adoptee or a descendant of the adoptee to inheritance or intestate
succession through or from the adoptee’s former parent.

It is usually in the child’s best interests to be in a two parent family. Thus, legislatures and
the courts seek to preserve the family unit. If the parents, divorce, legislatures and courts ensure that
the noncustodial parent maintains contact with the child by giving that person liberal visitation
rights. Therefore, divorce does not sever the parent-child relationship. On the other hand, if the
custodial parent remarries, it is in the child’s best interests to blend into that family unit. Normally,
the birth parent-child relationship takes precedent over the stepparent-stepchild relationship.
Consequently, as will be discussed in a later chapter, stepchildren are not typically considered to be
the heirs of their stepparents. To encourage harmony in blended families, legislatures and courts do
not permit the relationship that the child has with his or her stepparent to interfere with the
relationship that the child has with his or her birth parents. In jurisdictions that have adopted the
UPC, the stepparent’s adoption of the child does not impact the relationship between the child and
the birth parents. This approach permits the courts to respect the relationships that children have
with their stepparents and their birth parents. In light of the high divorce rate and the increasing
number of blended families, the UPC’s approach is consistent with public policy.
Impact on the right to inherit from biological parent(s)

Estate of Jacobs, 719 A.2d 523 (Me. 1998)
SAUFLEY, J.
Gloria B. Norcott appeals from an order of the Oxford County Probate Court (Hanley, J.), finding
that Jameson Boucher is the “child” of her son Derek Jacobs, now deceased for purposes of
intestacy under the Maine Probate Code. Because we agree with the Probate Code that Boucher’s
adoption by his mother’s husband did not change his relationship with Jacobs, his natural father, for
purposes of intestacy pursuant to 18-A M.R.S.A. § 2-109, we affirm.
Jameson Boucher (named Jameson LaCroix at birth) was born in 1970 in New Hampshire to
Suzanne LaCroix. LaCroix, unmarried at that time, later married Peter Boucher, who adopted
Jameson just before his second birthday. The child’s last name was accordingly changed from
LaCroix to Boucher under the adoption decree. The decree was silent as to the child’s relationship
to his natural father. Indeed, it is not clear from the record that the identity of Jasmeson Boucher’s
father was known at the time of adoption. It is undisputed, however, that when Boucher became an
adult he established a relationship with Derek Jacobs before Jacob’s death and that Jacobs is, in fact,
Boucher’s natural father.
Derek Jacobs died intestate in Maine in early December 1995, at the age of forty-three. Norcott, his
mother, filed a petition for her informal appointment as personal representative of Jacobs’s estate,
and listed herself and Robert Jacobs, Derek’s father, as the decedent’s only heirs. Jameson Boucher
filed a competing petition for formal adjudication of intestacy, identifying himself as Jacobs’s son,
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and seeking his own appointment as personal representative of the decedent’s estate. The Probate
Court held that, pursuant to section 2-109 of the Probate Code, Jameson Boucher was the “child” of
the decedent, Derek Jacobs, for purposes of intestacy, and therefore that he had priority of
appointment as personal representative of the decedent’s estate, Gloria Norcott appealed from this
order.
The sole question before the Court is whether, pursuant to 18-A M.R.S.A. § 2-109(1), Jameson
Boucher is the “child” of Derek Jacobs for purposes of intestate inheritance, despite the absence of
a provision in his adoption decree providing for that status. Statutory interpretation is a matter of
law, and we review the trial court’s decision de novo. See Guardianship of Zachary Z., 677 A.2d 550,
552 (Me. 1996). When interpreting a statute, we look first to its plain meaning and seek to give
effect to the intent of the Legislature, construing the statutory language to avoid absurd, illogical, or
inconsistent results. See Nasberg v. City of Augusta, 662 A.2d 227, 229 (Me. 1995). In doing so, we
consider “the whole statutory scheme of which the section at issue forms a part so that a
harmonious result, presumably the intent of the Legislature, may be achieved.” Davis v. Scott Paper
Co., 507 A.2d 581, 583 (Me. 1986).
Section 2-109(1) of the Maine Probate Code provides:
An adopted person is the child of an adopting parent and not of the natural parents except
that an adopted child inherits from the natural parents and their respective kin if the
adoption decree so provides, and except that adoption of a child by the spouse of a natural parent has
no effect on the relationship between the child and either natural parent. If a natural parent wishes an
adopted child to inherit from the natural parents and their respective kin, the adoption
decree must provide for that status. 18-A M.R.S.A. § 2-109 (1998) (emphasis added).
The unambiguous language at the end of the first sentence stating that the adoption of a child by the
spouse of a natural parent has no effect on the relationship between the child and either parent, results
in that child being the “child” of and inheriting from both natural parents. The adoption by a
stepparent, in other words, does not affect the relationship between the adopted person and either
of his natural parents for purposes of intestacy under the Probate Code.
Norcott argues, however, that the second sentence, added by the Legislature in 1993, modifies the
first sentence so that a child adopted by a stepparent may inherit through both natural parents only
if the adoption decree explicitly so provides. If the second sentence is read to have the effect urged
by Norcott, much of the first sentence becomes meaningless because its exception to the rule for
adoptions by stepparents would be swallowed by the requirement that the adoption decree explicitly
address the continued inheritance rights. Such an interpretation would run directly counter to our
mandate to give effect to all portions of a statute where that goal can be accomplished in a logical
fashion. If, in contrast, the second sentence is read to provide simply that natural parents have the
affirmative right to assure that their child will inherit from them when that child is adopted by
someone other than a spouse of a natural parent, both sentences are given meaning, and the result is
neither illogical nor inconsistent.
Moreover, to the extent that the second sentence of section 2-109 is inconsistent with the first, any
ambiguity is resolved by the legislative history of the statute. Before the 1993 amendment, it was
clear that “a child adopted by the new spouse of a natural parent…inherit[ed] from both his natural
parents and from his adoptive parent.” Maine Probate Law 41 (1978). When the second sentence
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was added in 1993, the statement of fact accompanying a Senate Amendment to the bill provided:
“This amendment retains current inheritance rights of adopted children but clarifies that the adoptive parents
may not bar the wishes of the birth parents.” Comm. Amend. A to L.D. 942, No. S-495 (116th Legis.
1993) (emphasis added). Thus, it is clear that the Legislature did not intend the amendment to
change the meaning of the existing provision, under which the adoption of a child by the spouse of
a natural parent did not affect the child’s relationship with either of his natural parents.
Accordingly, the Probate Court correctly concluded that Jameson Boucher is the “child” of his
natural father, Derek Jacobs, pursuant to section 2-109 of the Maine Probate Code.
Judgment affirmed.
Impact on the right to inherit through biological parent(s)

In re Estate of McQuesten, 578 A.2d 335 (N.H. 1990)
BROCK, Chief Justice.
The petitioners were adopted by their stepfather following the divorce of their natural parents and
the remarriage of their mother. They now claim a right to inherit, through their deceased natural
father, from the estate of their natural paternal grandmother. The Hillsborough County Probate
Court (Cloutier, J.) denied the petitioners' claim, ruling that the right to take by representation was
terminated by the adoption. For the reasons that follow, we affirm.
Sheree L. Faucher and Cathy L. Faucher, the petitioners, were born during the marriage of their
natural parents, Robert A. McQuesten and Sandra A. Faucher (formerly Sandra A. McQuesten).
When the marriage ended in divorce in 1963, custody of the petitioners was given to their mother,
who later that same year married Bertrand Faucher. In 1968, when Sheree and Cathy were nine and
seven years old, respectively, they were adopted by their stepfather with the consent of their natural
father.
In 1971, Robert A. McQuesten died intestate and, in 1979, his mother, Ena M. McQuesten also died
intestate. In December 1988, the petitioners filed notices of claim with the probate court, each
seeking an amount equivalent to one-fourteenth (1/14) of the value of certain real estate owned by
their natural paternal grandmother at the time of her death. The court denied the petitioners' claims,
ruling “that the right to take by representation through their biological parent [was] terminated by
the adoption....” The petitioners also filed a motion, which was not granted by the probate court,
requesting access to their sealed adoption records.
On appeal, the petitioners argue that the probate court erred in denying their claims against their
grandmother's estate. They contend that RSA 170-B:20 creates a special exception, applicable to
stepparent adoptions, which permits them to inherit through their natural father. They further
contend that the termination of the right to inherit through their natural father, who openly
consented to the adoption of his children by their stepfather, was not in their “best interests” and
violated principles of equity. In addition, the petitioners argue that a guardian ad litem should have
been appointed by the probate court at the time of adoption to protect their financial interests.
Finally, they claim that “good cause” exists to unseal their adoption records because their adoption
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was open and uncontested and because no living party to the adoption has expressed any objection.
We first address the petitioners' claim that the adoption statute creates an exception for stepparent
adoptions, allowing the adopted child to inherit from the natural parent who has been otherwise
dispossessed of any parental rights, privileges, duties or obligations. The petitioners argue that the
exception can be found in the wording of RSA 170-B:20, V: “When the adopting parent is a
stepparent, married to a natural parent, nothing contained in this section shall affect the rights of
inheritance between the child and his natural parent or their collateral or lineal relatives.” (Emphasis
added.) The petitioners assert that because the legislature did not employ the phrase “his natural
parent who is married to the stepparent,” as it did in RSA 170-B:20, II, it was referring to the natural
parent who was not part of the adoptive marriage. We disagree.
“Adoption was unknown at common law and is wholly statutory.” Durivage v. Vincent, 102 N.H. 481,
483, 161 A.2d 175, 177 (1960). Therefore, our review of this claim is limited to an interpretation of
what the legislature has enacted. Young v. Bridges, 86 N.H. 135, 138, 165 A. 272, 274 (1933). In
interpreting the intent of the legislature, we look at words in the context of the statute as a whole.
State Employees Ass'n v. Cheney, 119 N.H. 822, 826, 409 A.2d 775, 777 (1979).
RSA 170-B:20 contains five paragraphs. Paragraph I confers upon the adopted child and the
adoptive parent or parents the same rights, privileges, duties and obligations, with respect to one
another, 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
any of the rights, privileges, duties or obligations with respect to the adopted child. RSA 170-B:20,
II. Paragraph II contains an exception, exempting from its provisions natural parents who are
married to adoptive stepparents. RSA 170-B:20, II. Paragraphs III and IV specifically address
inheritance rights. Paragraph III severs existing rights of inheritance between the adopted child and
the natural parent or parents. RSA 170-B:20, III. Paragraph IV, complementing paragraph III,
establishes rights of inheritance between the adopted child and the adoptive parent or parents. RSA
170-B:20, IV. Paragraph V is composed of several sentences, each dealing further with the effect of
adoption upon testate or intestate property distribution. See RSA 170-B:20, V.
It is one of the sentences of paragraph V which provides the fuel for the petitioners' argument. The
sentence calls for the continuation of inheritance rights, which would otherwise be severed by the
provisions of paragraph III, between an adopted child and “his natural parent” in situations
involving stepparent adoption. RSA 170-B:20, V. The question is whether “his natural parent” refers
to the natural parent married to the stepparent, to the natural parent whose parental relationship
with the adopted child has been legally terminated, or to both.
The provision clearly does not apply to both natural parents. The wording, “his natural parent,” is in
the singular. The adoption statute consistently makes reference to “natural parent or parents” where
inclusion of both the natural father and the natural mother is intended. See RSA 170-B:20, I-V. If the
legislature had sought to continue the inheritance rights between the adopted child and both natural
parents, it undoubtedly would have employed similar language.
In determining which natural parent is referred to as “his natural parent,” it is logical that the
legislature would intend to preserve inheritance rights between an adopted child and the natural
parent with whom he or she continues to have a familial relationship. This would be consistent with
the exception contained in paragraph II. See RSA 170-B:20, II. Furthermore, it would be illogical to
191

conclude that the legislature intended to continue inheritance rights between an adopted child and a
natural parent who has had all other parental rights, privileges, duties and obligations legally
terminated. See RSA 170-B:20, II, III.
In interpreting the adoption statute as a whole, we conclude that RSA 170-B:20, V allows the
inheritance rights of the natural parent married to an adopting stepparent to remain unaffected by
the adoption. It does not create an exception whereby inheritance rights may be preserved between
an adoptive child and a natural parent who has been legally dispossessed of any continuing parental
rights or duties.
Next, we consider the petitioners' claim that, despite the intent of the legislature, as expressed in the
adoption statute, this court should promote their “best interests” and permit them to inherit from
the estate of their natural paternal grandmother. The basis for making such a ruling, as argued by the
petitioners, is that theirs was an “open” adoption, entered into with the knowledge and consent of
their now deceased natural father. They argue that they should be permitted to inherit from their
natural parents as well as their adoptive parents, which would be the result if this court applied
principles of fairness and equity. We disagree.
We begin our review of this claim by noting that RSA 170-B:20, III-V, the provisions which address
rights of inheritance after adoption, do not differentiate between cases based upon whether an
adoption is “open” or whether parental consent was obtained. We further note that the only interest
which the petitioners have asked us to promote is their claim to a portion of their late grandmother's
estate.
We have previously addressed the petitioners' argument regarding the fairness and equity of
permitting adopted children to inherit from both adoptive and natural parents and have held “that
for the purpose of inheritance of property by heirship the adopted child becomes the child of the
adopting parents and ceases to be the child of the natural parents, the reason being to avoid the
unfair result of giving a dual right of inheritance to an adopted child as against the single right of a
child not adopted to inherit from his blood kin only.” Amoskeag Trust Co. v. Haskell, 96 N.H. 89, 98,
70 A.2d 210, 217 (1950) (citing Young v. Bridges, 86 N.H. at 138, 165 A. at 275) (emphasis added).
This reasoning remains sound today. While an adopted child may lose rights of inheritance from
natural parents, he or she gains rights of inheritance from adoptive parents. RSA 170-B:20, I. At the
same time, natural parents are not prevented from making testamentary provision for their children
who are adopted, should they desire. RSA 170-B:20, V.
The right of inheritance is also controlled by statute. See RSA ch. 561. The right is of no immediate
value until a relative dies and the deceased relative's assets, by operation of the descent and
distribution statutes, become vested in the heir. A relative can disappoint a potential heir by
conveying his or her life's bounty through testamentary disposition or inter vivos transfer to other
parties, or by simply expending his or her resources during his or her lifetime. While the right of
inheritance provides the opportunity for an heir to be enriched by the demise of a relative, we
cannot adjudge one right of inheritance to be more valuable than another.
We see no unfairness or inequity in terminating the right of inheritance through a natural parent in
substitution for granting a new right of inheritance through an adoptive parent. In the petitioners'
situation, it may be in their best financial interest to inherit from their natural grandmother. But it is
not the purpose of the adoption statute to create financial advantages for the adopted child. See RSA
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170-B:1. The statute already considers the respective interests of the adopted child, adoptive parents
and natural parents in the adoption process. See id. Because the statute provides a clear solution in
the interest of all parties, we need not apply equitable principles to reach a contrary result. Smith v.
Consul General Of Spain, 110 N.H. 62, 64, 260 A.2d 95, 97 (1969).
Next, the petitioners claim that the failure of the probate court to appoint guardians ad litem to
represent their financial interests during the adoption proceeding amounted to a denial of due
process and the unprivileged taking of their property in violation of the New Hampshire
Constitution, part I, article 15. We find no merit in this claim.
The petitioners were not dispossessed of the right to inherit. For purposes of inheritance, the
adoption changed only their familial association, exchanging their inheritance right through their
natural father for the right to inherit through their adoptive father. Their natural father and his
relatives retained the right to make testamentary dispositions to the petitioners. As stated earlier, the
right to inherit has no immediate value, providing opportunity for gain only under fortuitous, and
often bittersweet, circumstances. The petitioners had no property taken from them at the time of
their adoption, and the State Constitution was not violated. The probate court did not err in failing
to appoint guardians ad litem to represent the petitioners' financial interests.
Affirmed.

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Chapter Five: Intestacy (Non-Marital Children, Stepchildren and Foster
Children)
5.1

Introduction

This chapter examines the rights of three categories of children who are treated like
outsiders. These children are punished because of the actions of their parents. The deterioration of
the institution of marriage created two new classes of children—non-marital children and step
children. For inheritance purposes, non-marital children are treated like second tiered children. A
child who is not genetically related to a woman’s husband has the opportunity to inherit from that
man because of the marriage. However, a child born outside of the marriage may not be able to
inherit from his biological father unless his mother jumps through some extra hoops.
When the intestacy system was created, non-marital children were called bastards and had
basically no legal rights. The man did not have to provide any type of support for the children he
conceived with a woman who was not his wife. Those children were considered to be the children
of no one. Therefore, they were not legally entitled to child support or legally able to be heirs.29 If an
unmarried woman died giving birth to a child, that child was forced to reside in an orphanage home
or to live on the streets. The child suffered that fate even if the child’s father was a wealthy man.
There was a no great outrage or objection to that practice because children born out of wedlock
were considered to be the products of sin. As more and more people chose to openly have children
without the benefit of marriage, the plight of non-marital children could not be ignored. Society
recognized the need to ensure that those children were not disadvantaged because of the
circumstances of their births. It took years of litigation, but the stigma of illegitimacy was eventually
removed from the non-marital child. Currently, all fifty states and the District of Columbia have
intestacy statutes giving non-marital children the opportunity to inherit from their parents. Thus, the
nature of the litigation has changed. Recent cases address the ability of non-marital children to take
the steps necessary to have the chance to inherit from their fathers.
My father was my mother’s third husband. When my parents married, my mother had three
small children. As a result of their marriage, my parents conceived nine children. We all grew up
together as a family. I did not make any distinction between my half-siblings and my whole siblings.
Nonetheless, when my father died, his estate was divided into nine parts instead of twelve parts. The
courts did not take into consideration that my half-siblings were really young when my parents
married or the fact that my father had a close relationship with my half-siblings. The courts were
bound by the law that stated that stepchildren were not heirs of their stepparents. In this context,
the legal parent-child relationship necessary for my half-siblings to inherit from my father did not
exist even though a parent-child relationship did exist. Studies show that a majority of children in
the United States will live in blended families. Thus, there is a push to put stepchildren on par with
biological children for intestacy purposes. I have included a discussion of the inheritance rights of
foster children in this chapter because the foster care system is changing. Children are staying longer
in the same foster homes and becoming part of their foster families. Therefore, the foster parentfoster child relationship resembles a parent-child relationship.

29

1 William Blackstone, Commentaries on the Laws of England 447 (William S. Hein & Co., Inc. 1992).

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5.2

Non-Marital Children

Most of the current litigation in this area involves the non-marital child’s right to inherit
from his or her father. In order for the non-marital child to be considered an heir under the
intestacy system, a father-child relationship must exist. The legal issues relevant to the discussion are:
(1) Whether the intestate statute at issue satisfies the mandates established by the United States
Supreme Court cases; (2) Whether the non-marital child has sufficiently complied with the intestate
statute 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.
Every time the state expands the definition of “child” for inheritance purposes, it decreases
the inheritance rights of marital children. Accordingly, the state legislature must balance the
inheritance rights of various groups of children while promoting the state’s interest in an orderly
probate process. When reading the materials in this section, you should think about the interests that
have to be balanced. In deciding how to distribute the property of a man who dies intestate, the state
must consider three important interests: (1) the state’s interests in the orderly disposition of after
death property; (2) the non-marital child’s interest in acquiring the chance to inherit from his or her
father; and (3) the marital children’s interest in reducing the number of persons claiming an interest
in the man’s estate.
Starting in the late 1960’s, the United States Supreme Court considered several cases
involving the legal rights of non-marital children attempting to receive financial benefits based upon
their connections to their biological fathers and their mothers. The holdings in those cases paved the
way for the Supreme Court to conclude that non-marital children must be given the opportunity to
inherit from their mothers and fathers. In response, the state enacted statutes setting out the
conditions that have to be met in order for non-marital children to inherit from their mothers and
fathers. The state legislatures either concluded that the mother-child relationship was established by
the process of birth or explicitly granted the non-marital child the right to inherit from his or her
mother. The non-marital child’s right to inherit from his or her father was not so easily resolved.
The states enacted statutes enumerating the conditions the non-marital child has to meet in order to
establish the father-child relationship for inheritance purposes. The following cases set out the
parameters state intestacy statutes have to meet in order to survive constitutional challenges by and
on behalf of non-martial children.
5.2.1

The Right to Inherit From Mothers

In light of the old adage, “mama’s baby, papa’s maybe,” it would appear that the non-marital
child’s 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
dealing 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
who wanted the opportunity to inherit from and through their mothers. Those initial cases involved
tort law. The principles established in those cases paved the way for legislatures to acknowledge that
non-marital children have a right to be financially supported by their mothers. That right to support
has extended to a right to be considered an heir under the intestacy system. An example of such a
case follows.

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Levy v. Louisiana, 391 U.S. 68 (1968)
Mr. Justice DOUGLAS delivered the opinion of the Court.
Appellant sued on behalf of five illegitimate children to recover, under a Louisiana statute 30 for two
kinds of damages as a result of the wrongful death of their mother: (1) the damages to them for the
loss of their mother; and (2) those based on the survival of a cause of action which the mother had
at the time of her death for pain and suffering. Appellees31 are the doctor who treated her and the
insurance company.
We assume in the present state of the pleadings that the mother, Louise Levy, gave birth to these
five illegitimate children and that they lived with her; that she treated them as a parent would treat
any other child; that she worked as a domestic servant to support them, taking them to church every
Sunday and enrolling them, at her own expense, in a parochial school. The Louisiana District Court
dismissed the suit. The Court of Appeal affirmed, holding that ‘child’ in Article 21315 means
‘legitimate child,’ the denial to illegitimate children of ‘the right to recover’ being based on morals
and general welfare because it discourages bringing children into the world out of wedlock.’ 192 So.
2d 193, 195. The Supreme Court of Louisiana denied certiorari. 250 La. 25, 193 So. 2d 530.
The case is here on appeal (28 U.S.C. s 1257(2)); and we noted probable jurisdiction, 389 U.S. 925,
88 S.Ct. 290, 19 L.Ed. 2d 276, the statute as construed having been sustained against challenge under
both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
We start from the premise that illegitimate children are not ‘nonpersons.’ They are humans, live and
have their being.32 They are clearly ‘persons’ within the meaning of the Equal Protection Clause of
the Fourteenth Amendment.
While a State has broad power when it comes to making classifications (Ferguson v. Skrupa, 372 U.S.
726, 732, 83 S.Ct. 1028, 1032, 10 L.Ed. 2d 93), it may not draw a line which constitutes an invidious
discrimination against a particular class. See Skinner v. State of Oklahoma, 316 U.S. 535, 541-542, 62
S.Ct. 1110, 1113-1114, 86 L. Ed. 1655. Though the test has been variously stated, the end result is
whether the line drawn is a rational one. See Morey v. Doud, 354 U.S. 457, 465-466, 77 S.Ct. 1344,
1349-1351, 1 L.Ed. 2d 1485.
30 La. Civ. Code Ann. Art. 2315 (Supp. 1967) (Every act whatever of man that causes damages to another obliges him by

whose fault it happened to repair it. ‘The right to recover damages to property caused by an offense or quasi offense is a
property right which, on the death of the oblige, is inherited by his legal, instituted, or irregular heirs, subject to the
community rights of the surviving spouse.’ The right to recover all other damages caused by an offense or quasi offense,
if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the
surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving
father and mother of the deceased, or either of them, if he left no spouse or surviving child; and (3) the surviving
brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in
whose favor this right of action survives may also recover the damages which they sustained through the wrongful death
of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the
death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs,
whether suit has been instituted thereon by the survivor or not. ‘As used in this article, the words ‘child,’ ‘sister,’ ‘father,’
and ‘mother’ include a child, brother, sister, father, and mother, by adoption, respectively.’
31 The State of Louisiana was dismissed from the action and exceptions relating to the Charity Hospital, at which the
mother was treated, were continued indefinitely. No appeal was taken with respect to either of those defendants.
32 See Note, The Rights of Illegitimates Under Federal Statutes, 76 Harv. L. Rev. 337 (1962).

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In applying the Equal Protection Clause to social and economic legislation, we give great latitude to
the legislature in making classifications. Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S. Ct. 461,
465, 99 L. Ed. 563; Morey v. Doud, supra. 354 U.S., at 465-466, 77 S.Ct. at 1349-1351. Even so, would
a corporation, which is a ‘person,’ for certain purposes, within the meaning of the Equal Protection
Clause (Pembina Consol, Silver Mining & Milling Co. v. Pennsylvania, 125 U.S. 181, 188, 8 S.Ct. 737, 740,
31 L.Ed. 650) be required to forgo recovery for wrongs done its interests because its incorporators
were all bastards? However that might be, we have been extremely sensitive when it comes to basic
civil rights (Skinner v. State of Oklahoma, supra, 316 U.S. at 541, 62 S. Ct., at 1113; Harper v. Virginia
State Board of Elections, 383 U.S. 663, 669-670, 86 S.Ct. 1079, 1082-1083, 16 L.Ed. 2d 169) and have
not hesitated to strike down an invidious classifications even though it had history and tradition on
its side. (citations omitted). The rights asserted here involve the intimate familial relationship
between a child and his own mother. When the child’s claim of damage for loss of his mother is in
issue, why, in terms of ‘equal protection,’ should the tortfeasors go free merely because the child is
illegitimate? Why should the illegitimate child be denied rights merely because of his birth out of
wedlock? He certainly is subject to all the responsibilities of a citizen, including the payment of taxes
and conscription under the Selective Service Act. How under our constitutional regime can he be
denied correlative rights which other citizens enjoy?
Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on
the mother. These children, though illegitimate, were dependent on he; she cared for them and
nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they
suffered wrong in the sense that any dependent would.33
We conclude that it is invidious to discriminate against them when no action, conduct, or demeanor
of theirs34 is possibly relevant to the harm that was done the mother.35
Reversed.
Notes and Questions
1. Once courts recognized and validated the parent-child relationship between mothers and their
non-marital children, it was not a stretch for non-marital children to be acknowledged as heirs of
their mothers. As a result, several state legislatures made it clear that non-marital children have the
right to inherit from their mothers. A sample statute follows:

33 Under Louisiana law both parents are under a duty to support their illegitimate children.

La. Civ. Code Ann. Arts.
239, 240 (1952).
34 We can say with Shakespeare: ‘Why bastard, wherefore base? When my dimensions are as well compact, My mind as
generous, and my shape as true, As honest madam’s issue? Why brand they us With base? with baseness? bastardy? base,
base?’ King Lear, Act I, Scene 2.
35 Under Louisiana’s Workmen’s Compensation Act (La. Rev. Stat. Ann. 23:1231, 23:1252, 23:1253 (1964) and
illegitimate child, who is a dependent member of the deceased parent’s family, may recover compensation for his death.
See Thompson v. Vestal Lumber & Mfg. Co., 208 La. 83, 22 So. 2d 842 (1945). Employers are entitled to recover from a
wrongdoer workmen’s compensation payments they make to the deceased’s dependent illegitimate children. See Board of
Commissioners, etc. v. City of New Orleans, 223 La. 199, 65 So. 2d 313 (1953); Thomas v. Matthews Lumber Co., 201 So. 2d 357
(Ct. App. La. 1967).

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Ohio Revised Code Annotated
2105.17 Capability of children born out of wedlock as to inheritance
Children born out of wedlock shall be capable of inheriting or transmitting inheritance from
and to their mother, and from and to those from whom she may inherit, or to whom she
may transmit inheritance, as if born in lawful wedlock.
2. Are there any legitimate reasons why non-marital children should not be given the opportunity to
inherit from their mothers? What factors should go into making that determination? Are there any
limitations that should be placed on the ability of non-marital children to inherit from their mothers?
See Byrd N. Trennor, 811 N.E.2d 549 (Ohio App. 2 Dist. 2004)(justifying the different in treatment,
for inheritance purposes, of non-marital children of intestate fathers and non-martial children of
intestate mothers).
3. 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
child attempting to inherit from his or her mother? What reasoning in the case supports a nonmarital child’s right to inherit under the intestacy system?
5.2.2

The Right to Inherit From Fathers

A child does not have the right to inherit from a parent. However, if the intestacy system
permits one class of children to inherit, that right must be provided to all classes of children. Thus, it
is clear that a state statute that prohibits the non-marital child from inheriting from his or her father
will not pass constitutional muster. Hence, the question becomes: How much can a state limit a nonmarital child’s right to inherit from his or her father. As the following cases indicate, the state has to
give the non-marital child a plausible opportunity to inherit from his or her parent.

Lalli v. Lalli, 439 U.S. 259 (1978)
Mr. Justice POWELL announced the judgment of the Court and delivered an opinion, in which THE
CHIEF JUSTICE and Mr. Justice STEWART join.
This case presents a challenge to the constitutionality of § 4-1.2 of New York’s Estates, Powers, and
Trusts Law, which requires illegitimate children who would inherit from their fathers by intestate
succession to provide a particular form of proof of paternity. Legitimate children are not subject to
the same requirement.
Appellant Robert Lalli claims to be the illegitimate son of Mario Lalli who died intestate on January
7, 1973, in the State of New York, Appellant’s mother who died in 1968, never was married to
Mario. After Mario’s widow, Rosamond Lalli, was appointed administratrix of her husband’s estate,
appellant petitioned the Surrogate’s Court for Westchester County for a compulsory accounting,
claiming that he and his sister Maureen Lalli were entitled to inherit from Mario as his children.
Rosamond Lalli opposed the petition. She argued that even if Robert and Maureen were Mario’s
children, they were not lawful distributes of the estate because they had failed to comply with § 41.2, which provides in part:
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“An illegitimate child is the legitimate child of his father so that he and his issue inherit from
his father if a court of competent jurisdiction has, during the lifetime of the father, made an
order of filiation declaring paternity in a proceeding instituted during the pregnancy of the
mother or within two years form the birth of the child.”
Appellant conceded that he had not obtained an order of filiation during the putative father’s
lifetime. He contended, however, that § 4-1.2, by imposing this requirement, discriminated against
him on the basis of his illegitimate birth in violation of the Equal Protection Clause of the
Fourteenth Amendment. Appellant tendered certain evidence of his relationship with Mario Lalli,
including a notarized document in which Lalli, in consenting appellant’s marriage, referred to him as
“my son,” and several affidavits by persons who stated that Lalli had acknowledged and often that
Robert and Maureen were his children.
The Surrogate’s Court noted that § 4-1.2 had previously, and unsuccessfully, been attacked under the
Equal Protection Clause. After reviewing recent decisions of this Court concerning discrimination
against illegitimate children, particularly Labine v. Vincent, 401 U.S. 532, 91 S. Ct. 1017 (1971), and
three New York decisions affirming the constitutionality of the statute, the court ruled that appellant
was properly excluded as a distribute of Lalli’s estate and therefore lacked status to petition for a
compulsory accounting (citations omitted).
On direct appeal the New York Court of Appeals affirmed. In re Lalli, 340 N.E. 2d 721 (1975). It
understood Labine to require the State to show no more than that “there is a rational basis for the
means chosen by the Legislature for the accomplishment of a permissible State objective.” 340
N.E.2d, at 723. After discussing the problems of proof peculiar to establishing paternity, as
opposed to maternity, the court concluded that the State was constitutionally entitled to require a
judicial decree during the father’s lifetime as the exclusive form of proof of paternity.
On remand, the New York Court of Appeals, with two judges dissenting, adhered to is former
disposition. In re Lalli, 371 N.E.2d 481 (1977). It acknowledged that Trimble contemplated a
standard of judicial review demanding more than “a mere finding of some remote rational
relationship between the statute and a legitimate State purpose,” though less than strictest scrutiny.
(citations omitted) Finding § 4-1.2 to be “significantly and determinatively different” from the
statute overturned in Trimble, the court ruled that the New York law was sufficiently related the
State’s interest in “‘the orderly settlement of estates and the dependability of titles to property
passing under intestacy laws,”’ to meet the requirements of equal protection. Quoting Trimble, supra,
430 U.S., at 771, 97 S. Ct., at 1465, protection. (citation omitted).
Appellant appealed the Court of Appeals’ decision to this Court. While that case was pending here,
we decided Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459 (1977). Because the issues in these two
cases were similar in some respects, we vacated and remanded to permit further consideration in
light of Trimble. Lalli v. Lalli, 431 U.S. 911, 97 S.Ct. 2164 (1977).
Appealing again sought review here, and we noted probably jurisdiction. 435 U.S. 921, 98 S.Ct. 1482
(1978). We now affirm.

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II
We begin our analysis with Trimble. At issue in that case was the constitutionality of an Illinois
statute providing that a child born out of wedlock could inherit from his interstate father only if the
father had “acknowledged” the child and the child had been legitimated by the intermarriage of the
parents. The appellant in Trimble was a child born out of wedlock whose father had neither
acknowledged her nor married her mother. He had, however, been found to be her father in a
judicial decree ordering him to contribute to her support. When the father died intestate, the child
was excluded as a distributee because the statutory requirements for inheritance had not been met.
We concluded that the Illinois statute discriminated against illegitimate children in a manner
prohibited by the Equal Protection Clause. Although, as decided in Mathews v. Lucas, 427 U.S. 495,
506, 96 S.Ct. 2755, 2762 (1976), and reaffirmed in Trimble, supra, 430 U.S., at 767, 97 S.Ct., at 1464,
classifications based on illegitimacy are not subject to “strict scrutiny,” they nevertheless are invalid
under the Fourteenth Amendment if they are not substantially related to permissible state interests.
Upon examination, we found that the Illinois law failed that test.
Two state interests were proposed which the statute was said to foster: the encouragement of
legitimate family relationships and the maintenance of an accurate and efficient method of disposing
of an intestate decedent’s property. Granting that the State was appropriately concerned with the
integrity of the family unite, we viewed the statute as bearing “only the most attenuated relationship
to the asserted goal.” Trimble, supra, at 768, 97 S.Ct., at 1464. We again rejected the argument that
“persons will shun illicit relations because the offspring may not one day reap the benefits” that
would accrue to them were they legitimate. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173,
92 S.Ct. 1400, 1405 (1972). The statute therefore was not defensible as an incentive to enter
legitimate family relationships.
Illinois’ interest in safeguarding the orderly disposition of property at death was more relevant to the
statutory classification. We recognized that devising “an appropriate legal framework” in the
furtherance of that interest “is a matter particularly within the competence of the individual States.”
Trimble, supra, 430 U.S., at 771, 97 S.Ct., at 1465. An important aspect of that framework is a
response to the often difficult problem of providing the paternity of illegitimate children and the
related danger of spurious claims against intestate estates. These difficulties, we said, “might justify a
more demanding standard for illegitimate children claiming under their fathers’ estates than that
required either for illegitimate children claiming under their mothers’ estates or for legitimate
children generally.” Trimble, supra, at 770, 97 S.Ct., at 1465.
The Illinois statute, however, was constitutionally flawed because, by insisting upon not only an
acknowledgment by the father, but also the marriage of the parents, it excluded “at least some
significant categories of illegitimate children of intestate men [whose] inheritance rights can be
recognized without jeopardizing the orderly settlement of estates or the dependability of titles to
property passing under intestacy laws.” Id., at 771, 97 S.Ct. at 1465. We concluded that the Equal
Protection Clause required that a statute placing exceptional burdens on illegitimate children in the
furtherance of proper sate objectives must be more “‘carefully tuned to alternative considerations”’
than was true of the broad disqualification in the Illinois law (citations omitted).
III
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The New York statute, enacted in 1865, was intended to soften the rigors of previous law which
permitted illegitimate children to inherit only from their mothers. See infra, at 525. By lifting the
absolute bar to paternal inheritance, § 4-1.2 tended to achieve its desired effect. As in Trimble,
however, the question before us is whether the remaining statutory obstacles to inheritance by
illegitimate children can be squared with the Equal Protection Clause.
A.
At the outset we observed that § 4-1.2 is different in importance respects from the statutory
provision overturned in Trimble. The Illinois statute required, in addition to the father’s
acknowledgment of paternity, the legitimation of the child through the intermarriage of the parents
as an absolute precondition to inheritance. This combination of requirements eliminated “the
possibility of middle ground between the extremes of complete exclusion and case-by-case
determination of paternity.” Trimble, 430 U.S., at 770-771, 97 S.Ct., at 1465. As illustrated by the
facts in Trimble, even a judicial declaration of paternity was insufficient to permit inheritance.
Under § 4-1.2, by contrast, the marital status of the parents is irrelevant. The single requirement at
issue here is an evidentiary one-that the paternity of the father be declared in a judicial proceeding
sometime before his death. The child need not have been legitimated in order to inherit from his
father. Had the appellant in Trimble been governed by § 4-1.2. The Court of Appeals disclaimed
that the purpose of the statute, “even in small part, was to discourage illegitimacy, to mold human
conduct or to set societal norms.” In re Lalli, supra, 371 N.E.2d, at 483. The absence in § 4-1.2 of
any requirement that the parents intermarry or otherwise legitimate a child born out of wedlock and
our review of the legislative history of the statute confirm this view.
Our inquiry, therefore, is focused narrowly. We are asked to decide whether the discrete procedural
demands that § 4-1.2 places on illegitimate children bear an evident and substantial relation to the
particular state interests this statute is designed to serve.
B.
The primary state goal underlying the challenged aspects of § 4-1.2 is to provide for the just and
orderly disposition of property of death. We long have recognized that this is an area with which
the States have an interest of considerable magnitude. Trimble, supra 430 U.S., at 771, 97 S.Ct., at
1466.
This interest is directly implicated in paternal inheritance by illegitimate children because of the
peculiar problems of proof that are involved. Establishing maternity is seldom difficult. As one
New York Surrogate’s Court has observed: “[T]he birth of the child is a recorded or registered event
usually taking place in the presence of others. In most cases the child remains with the mother and
for a time is necessarily reared by her. That the child is the child of a particular woman is rarely
difficult to prove.” In re Ortiz, 60 Misc.2d 756, 761,303 N.Y.S.2d 806, 812 (1969). Proof of
paternity, by contrast, frequently is difficult when the father is not part of formal family unit. “The
putative father often goes his way unconscious of the birth of a child. Even if conscious, he is very
often totally unconcerned because of the absence of any ties to the mother. Indeed the mother may
not know who is responsible for her pregnancy.” (citations omitted)

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Thus, a number of problems arise that counsel against treating illegitimate children identically to all
others heirs of an intestate father. These were the subject of a comprehensive study by the
Temporary State Commission on the Modernization, Revision and Simplification of the Law of
Estates. This group, known as the Bennett Commission, consisted of individuals experienced in the
practical problems of estate administration. (citations omitted). The commission issued its report
and recommendations to the legislature in 1965. See Fourth Report of the Temporary State
Commission on the Modernization, Revision and Simplification of the Law of Estates. This group,
known as the Bennett Commission, consisted on individuals experienced in the practical problems
of estate administration. (citations omitted).
The Commission issued its report and
recommendations to the legislature in 1965. See Fourth Report of the Temporary State Commission
on the Modernization, Revision and Simplification of the Law of Estates, Legis.Doc. No. 19(1965)
(hereinafter Commission Report). The statute now codified as § 4-1.2 was included.
Although the overarching purpose of the proposed statute was “to alleviate the plight of the
illegitimate child,” the Bennett Commission considered it necessary to impose the strictures of § 41.2 in order to mitigate serious difficulties in the administration of the estates of both testate and
intestate decedents. Commission Report 37.
Even where an individual claiming to be the illegitimate child of a deceased man makes himself
known, the difficulties facing an estate are likely to persist. Because of the particular problems of
proof, spurious claims may be difficult to expose. The Bennett Commission therefore sought to
protect “innocent adults and those rightfully interested in their estates from fraudulent claims of
heirship and harassing litigation instituted by those seeking to establish themselves as illegitimated
heirs.” Commission Report 265.
C.
As the State’s interests are substantial, we now consider the means adopted by New York to further
these interests. In order to avoid the problems described above, the Commission recommended a
requirement designed to ensure the accurate resolution of claims of paternity and to minimize the
potential for disruption of estate administration. Accuracy is enhanced by placing paternity disputes
in a judicial forum during the lifetime of the father. As the New York Court of Appeals observed in
its first opinion in this case, the “availability [of the putative father] should be a substantial factor
contributing to the reliability of the fact-finding process.” In re Lalli, 340 N.E. 2d, at 724. In
addition, requiring that the order be issued during the father’s lifetime permits a man to defend his
reputation against “unjust accusations in paternity claims,” which was a secondary purpose of § 41.2. Commission Report 266.
The administration of an estate will be facilitated, and the possibility of delay and uncertainty
minimized, where the entitlement of an illegitimate child to notice and participation is a matter of
judicial record before the administration commences. Fraudulent assertions of paternity will be
much less likely to succeed, or even to arise, where the proof is put before a court of law at a time
when the putative father is available to respond, rather than first brought to light when the
distribution of the assets of an estate is in the offing.
Appellant contends that § 4-1.2, like the statute at issue in Trimble, excludes “significant categories of
illegitimate children” who could be allowed to inherit “without jeopardizing the orderly settlement”
of their intestate fathers’ estates. Trimble, 430 U.S., at 771, 97 S.Ct., at 1465. He urges that those in
his position-“known” illegitimate children who, despite the absence of an order of filiation obtained
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during their fathers’ lifetimes, can present convincing proof of paternity-cannot rationally be denied
inheritance as they pose none of the risks § 4-1.2 was to minimize.
We do not question that there will be some illegitimate children who would be able to establish their
relationship to their deceased fathers without serious disruption of the administration of estates and
that, as applied to such individuals, § 4-1.2 appears to operate unfairly. But few statutory
classifications are entirely free from the criticism that they sometimes produce inequitable results.
Our inquiry under the Equal Protection Clause does not focus on the abstract “fairness” of a state
law, but on whether the statute’s rationality contemplated by the Fourteenth Amendment.
The Illinois statute in Trimble was constitutionally unacceptable because it effected a total statutory
disinheritance of children born out of wedlock who were not legitimated by the subsequent marriage
of their parents. The reach of the statute was far in excess of its justifiable purposes. Section 4-1.2
does not share this defect. Inheritance is barred only where there has been a failure to secure
evidence of paternity during the father’s lifetime in the manner prescribed by the State. This is not a
requirement that inevitably disqualifies an unnecessarily large number of children born out of
wedlock.
The New York courts have interpreted § 4-1.2 liberally and in such a way as to enhance its utility to
both father and child without sacrificing its strength as a procedural prophylactic. For example, a
father of illegitimate children who is willing to acknowledge paternity can waive his defenses in a
paternity proceeding or even institute such a proceeding himself. (citations omitted). In addition,
the courts have excused “technical” failures by illegitimate children to comply with the statute in
order to prevent unnecessary injustice. e.g., In re Niles, 53 A.D.2d 983, 385 N.Y.S.2d 876 (1976),
appeal denied, 360 N.E.2d 1109 (1977) filiation order may be signed nunc pro tunc to relate back to
period prior to father’s death when court’s factual finding of paternity had been made); In re Kennedy,
392 N.Y. S.2d 365, 367 (Surr.Ct.1977) (judicial support order treated as “tantamount to an order of
filiation,” even though paternity was not specifically declared therein).
As the history of § 4-1.2 clearly illustrates, the New York Legislature desired to “grant to
illegitimates in so far as practicable rights of inheritance on a par with those enjoyed by legitimate
children,” while protecting the important state interests we have described. Commission Report
265. Section 4-1.2 represents a carefully considered legislative judgment as to how this balance best
could be achieved.
Even if, as Mr. Justice BRENNAN believes, § 4-1.2 could have been written somewhat more
equitably, it is not the function of a court “to hypothesize independently on the desirability or
feasibility of any possible alternative[s]” to the statutory scheme formulated by New York. Mathews
v. Lucas, 427 U.S., at 515, 96 S.Ct., at 2767. “These matters of practical judgment and empirical
calculation are for the [the State]…In the end, the precise accuracy of [the State’s] calculations is not
a matter of specialized judicial competence; and we have no basis to question their detail beyond the
evident consistency and substantiality.” Id., at 515-516, 96 S.C. at 2767.
The “formal acknowledgement” contemplated by Trimble is such as would minimize post-death
litigation, i.e., a regularly prescribed, legally recognized method of acknowledging paternity. It is
thus plain that footnote 14 in Trimble does not sustain the dissenting opinion. Indeed, the document
relied upon by the dissent is not an acknowledgment of paternity at all. It is a simple “Certificate of
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consent” that apparently was required at the time by New York for the marriage of minor. It
consists of one sentence:
“THIS IS TO CERTIFY that I, who have hereto subscribed my name, do hereby consent
that Robert Lalli who is my son and who is under the age of 21 years, shall be united in
marriage to Janice Bivins by any minister of the gospel or other person authorized by law to
solemnize marriages.” App. A14.
Mario Lalli’s signature to this document was acknowledge by a notary public, but the certificate
contains no oath or affirmation as to the truth of its contents. The notary did no more than confirm
the identity of Lalli. Because the certificate was executed for the purpose of giving consent to
marry, not of proving biological paternity, the meaning of the words “my son” is ambiguous. One
can readily imagine that had Robert Lalli’s half-brother, who was not Mario’s son but who took the
surname Lalli and lived as a member of his household, sought permission to marry, Mario might
also have referred to him as “my son” on a consent certificate.
The important state interests of safeguarding the accurate and orderly disposition of property at
death, emphasized in Trimble and reiterated in our opinion today, could be frustrated easily if there
were a constitutional rule that any notarized but unsworn statement identifying an individual as a
“child” must be accepted as adequate proof of paternity regardless of the context in which the
statement was made.
We concluded that the requirement imposed by § 4-1.2 on illegitimate children who would inherit
from their fathers is substantially related to the important state interests the statute is intended to
promote. We therefore find no violation of the Equal Protection Clause.
The judgment of the New York Court of Appeals is affirmed.
Notes and Questions
1. How did the Court distinguish the statute in Lalli from the statute in Trimble? Does the distinction
justify the different outcomes of the cases?
2. Was there another way for the state to carry out its interest without placing a burden on the
mother of the non-marital child(ren)?
3. From a public policy perspective, what are the pros and cons of permitting non-marital children
to inherit equally with martial children?
4. 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’s Treatment of the Illegitimate
Child, 14 L.J. Contemp. Legal Issues 453 (2004); Laurence C. Nolan, “Unwed Children and Their Parents
Before the United States Supreme Court from Levy to Michael H: Unlikely Participants in Constitutional
Jurisprudence, 28 Cap. U.L. Rev.1 (1999).
Even after the United States Supreme Court clearly mandated that non-marital children be
given a chance to inherit from their fathers, as the next cases demonstrates, the litigation continues.
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Phillips v. Ledford, 590 S.E.2d 280 (N.C. App. 2004)
TIMMONS-GOODSON, J.
Gwendolyn W. Phillips (“plaintiff”) appeals from a trial court dismissal granted pursuant to N.C.
Gen. Stat. § 1A-1 Rule 12(b)(6). For the reasons stated herein, we affirm the trial court’s decision.
The facts of the case are as follows. Benjamin Jay Owenby (“decedent”) died intestate in Buncombe
County, North Carolina on 29 January 2002. At the time of his death, decedent was not married,
not survived by parents and had no children other than plaintiff. Plaintiff is the natural and
biological daughter of decedent and Nancy Wilson Waldron. Decedent and Waldron were never
married.
On 11 March 2002, the Buncombe County Estate Division opened decedent’s estate. Marilyn
Owenby Ledford and George Richard Owenby (“defendants”), were appointed co-administrators
for the estate. Defendants are decedent’s siblings.
Decedent had seven siblings, three of whom predeceased him. Two of the deceased siblings had
children and the third deceased sibling had no children. The four surviving siblings and the children
of the deceased siblings were named in the Application of Letters of Administration as the
decedent’s heirs and those persons entitled to share in the decedent’s estate, and are also defendants
in this action.
Born on 19 April 1972, plaintiff was not told that she was decedent’s daughter until several years
prior to decedent’s death. After decedent was told that he was plaintiff’s biological father, plaintiff
and decedent were tested by a DNA genetic paternity testing laboratory which determined to a
greater than 99% level of certainty that decedent could not be excluded as the father of the plaintiff.
After the DNA testing, plaintiff and decedent developed a parent-child relationship. Decedent
acknowledged to his family, friends, and the general public that he was plaintiff’s father.
Furthermore, decedent’s siblings and their families were aware that plaintiff was decedent’s
daughter. However, decedent never legitimated plaintiff, and decedent was never adjudicated to be
plaintiff’s father during his lifetime.
On 17 June 2002, plaintiff filed this action pursuant to N.C. Gen. Stat. § 1-253, seeking a declaratory
judgment that she is the sole heir of the decedent. Defendants filed a motion to dismiss which was
granted, and an order of dismissal was entered on 17 September 2002. It is from this order that
plaintiff now appeals.
Plaintiff’s sole assignment of error is that the trial court improvidently granted defendants’ motion
to dismiss because the statute which stood as grounds for dismissal, N.C. Gen. Stat. § 29-19, as
applied violates plaintiff’s right to due process and equal protection under the North Carolina and
United States Constitutions. Plaintiff believes that the statute lacks a substantial and legitimate
relationship to the particular state interest that it purports to protect, and therefore is
unconstitutional.

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The first step in this Court’s analysis is to consider the trial court’s treatment of the motion to
dismiss. On a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil
Procedure, the standard of review is “’whether, as a matter of law, the allegations of the complaint,
treated as true, are sufficient to state a claim upon which relief may be granted under some legal
theory.’ (citations omitted). “The complaint must be liberally construed, and the court should not
dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of
facts to support his claim which would entitle him to relief.” (citations omitted). In the present case,
this Court must consider whether plaintiff’s complaint, treated as if all the allegations therein are
true, would meet the statutory requirements for an illegitimate child to inherit from her father
through this state’s intestacy laws. We hold that plaintiff’s complaint does not meet this
requirement.
The statute governing succession by, through and from illegitimate children states in pertinent part:
For purposes of intestate succession, an illegitimate child shall be entitled to take by, through
and from: (1) any person who has been finally adjudged to be the father of such child…; (2)
any person who has acknowledged himself during his own lifetime and the child’s lifetime to
be the father of such child in a written instrument executed or acknowledged before a
certifying officer…and filed during his own lifetime and the child’s lifetime in the office of
the clerk of superior court of the county where either he or the child resides.
N.C. Gen. Stat. § 29-19(b)(1) and (2) (2001). “Absent the statute, an illegitimate child has no right to
inherit from his or her putative father.” Hayes v. Dixon, 83 N.C. App. 52, 54, 348 S.E. 2d 609, 610
(1986) citing Herndon v. Robinson, 57 N.C. App. 318, 291 S.E. 2d 305 (1982).
In her complaint, plaintiff asserts the following pertinent allegations:
17. Several years prior to the death of the Decedent, Benjamin Owenby:
a. Plaintiff learned that the Decedent was her father;
b. Plaintiff and the Decedent developed a close and loving relationship;
c. Decedent acknowledged and held to his family, his friends and the general public that he was the
father of the Plaintiff;
d. Decedent’s siblings and their families were aware that the Plaintiff was the daughter of the
Decedent.
18. Several years prior to the death of the decedent, the Plaintiff and the [D]ecedent were tested by a
genetic paternity testing laboratory and it was determined to a greater than 99% level of certainty
that the [D]ecedent could not be excluded as the father of the child.
Plaintiff’s complaint did not include any claim that decedent was adjudged to be her father, or that
decedent acknowledged himself to be plaintiff’s father in a written instrument which was duly
executed and filed. Although the North Carolina Supreme Court has recognized DNA profile
testing to be generally admissible evidence as a reliable technique within the scientific community,
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(citations omitted) a positive DNA test is not enumerated in the statute as a method of meeting the
requirements to legitimate a child.
“The statute mandates what at times may create a harsh result. It is not, however, for the courts but
rather the legislature to effect any change.” Hayes, 83 N.C. App. at 54, 348 S.E. 2d at 610. The
allegations set forth in plaintiff’s complaint do not satisfy the statutory requirement for an
illegitimate child to inherit through the state’s intestacy laws. Therefore, these allegations, even
when treated as true, are not sufficient to state a claim upon which relief may be granted. For this
reason, we conclude that the trial court properly granted defendants’ motion to dismiss.
Plaintiff bases her appeal of the Rule 12(b)(6) dismissal on an argument that N.C. Gen. Stat. § 29-19
violates her equal protection and due process rights as afforded her by the North Carolina and
United States Constitutions. Because we have determined that plaintiff’s complaint does not state a
claim upon which relief can be granted, we need not address whether the statute violates plaintiff’s
rights under the North Carolina and United States Constitutions. (citations omitted). “[T]he courts
of this State will avoid constitutional questions, even if properly presented, where a case may be
resolved on other grounds”). The trial court properly granted defendants’ motion to dismiss and
therefore we decline to address the constitutional issues presented in this appeal.
No error.
Notes and Questions
1. Would the North Carolina statute have survived a challenged based upon the United States
Constitution?
2. Is the result in this case against public policy? How should the statute be amended to serve the
best interests of the state and the non-marital child?
Class Discussion Tool
Ten years ago, only 11% of the children born in the State of Morality were born to persons
who were unmarried. Thus, non-marital children are not included in the definition of children under
the State’s intestacy statute. In fact, the inheritance rights of non-marital children are not addressed
anywhere in the State’s intestacy statute. Today, in the State, 32% of the children born are the
products of non-marital relationships. Several non-martial children recently filed actions in the
probate court to have the right to inherit under the State’s intestacy laws. Consequently, the State
would like to amend its current intestacy statute to address the needs of non-marital children.
However, many of the current legislators are up for re-election, and the majority of the voters polled
think that it is immoral to have a child without the benefit of marriage. The State Senate has retained
your firm for assistance in drafting an appropriate statute. What components should the statute
include? What are concerns that must be considered prior to drafting the statute?
The Need For Information
The Plaintiff in the Ledford case appeared to make every effort to be recognized as the
decedent’s child prior to his death. However, since she did not strictly comply with the mandates of
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the statute, she was not given the opportunity to inherit from her biological father. The intestacy
system is set up to give preference to the decedent’s children. Nonetheless, the Plaintiff in the
Ledford case lost her inheritance to her father’s siblings and his nieces and nephews. It is unlikely that
the decedent would have wanted his estate distributed in that manner. The facts of this case illustrate
the problem faced by numerous non-marital children. It is not enough to give non-marital children
the opportunity to inherit from their fathers if they do not understand the steps necessary to take
advantage of that opportunity.
In order to make informed decisions, parents of non-marital children should know all of the
facts and rules. State intestacy laws can be confusing. For instance, many low-income women may
believe that if the father's name is on the birth certificate, the non-marital child has the right to
inherit from his or her father. As a result, such women do not bother to file paternity actions as
required by most state statutes. In reality, only two states, Arkansas and Georgia, deem the father's
name on the birth certificate as sufficient proof of paternity to permit a non-marital child to inherit
from his or her father. In both states, the father's name cannot be placed on the birth certificate
without his knowledge and consent.
Women who live in common law marriage jurisdictions are also disadvantaged by lack of
access to information. Many women living in those states believe that if they live with a man for a
long period of time, they are automatically deemed to be married. Those women do not realize that,
if they do not take the steps necessary to have their relationships legally recognized as common law
marriage, their children are considered non-marital children. Consequently, the women do not take
the actions necessary to ensure that their children will have the legal right to inherit from their
fathers.
Non-marital children often lose the right to inherit from their fathers because of the
ignorance of their parents. In the probate arena, knowledge is power; therefore, states should take
steps to make sure that parents understand the steps they need to take in order to enable non-marital
children to inherit from their fathers. There are actions states can take to get the necessary
information to the public. For instance, states could run public service announcements on local
television and radio stations. Public service announcements could inform women about the legal
consequences of having a child out of wedlock and educate parents about the steps they must take
under the state's intestacy statute to make the non-marital child eligible to inherit from his or her
father. States could also require organizations that provide services to low-income women to
distribute pamphlets containing information about the state's intestacy laws. The pamphlets could
include a checklist of the requirements for a non-marital child to earn the right to inherit from his or
her father. In order to guarantee fairness, states should arm parents of non-marital children with the
information necessary to protect the inheritance rights of those children.
Notes and Questions
1. What steps can state legislatures take to ensure that the families of non-martial children are
informed about their rights and responsibilities?
2. Should mothers have the right to waive the non-marital child’s right to inherit?

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Class Discussion Tool
LaMeesha had an affair with Melvin, a prominent member of the community. As a result of
that liaison, LaMeesha conceived a child. Prior to the birth of the child, LaMeesha and Melvin
signed a contract. LaMeesha agreed not to file a claim for child support. In exchange for that
promise, Melvin promised to pay LaMeesha $700 per month to provide for the child’s financial
needs. After the child, Cameron, was born Melvin made the promised payments. When Cameron
was fourteen years old, Melvin died intestate, survived by his wife, Linda and distant cousins. The
state had the following statute: “A child born out of wedlock may not inherit from or through the
child’s father, the other children of the father, or any parental kinship, unless: A court of competent
jurisdiction has entered an order declaring the child to be legitimate; a court of competent
jurisdiction has otherwise entered a court order establishing paternity; the father has signed the birth
certificate of the child; the father has executed a sworn statement signed by him attesting to the
parent-child relationship; or there is other clear and convincing evidence that the child is the child of
the father.” Does the contract satisfy the statutory requirements? Is the contract enforceable against
the estate?
5.2.3

Right to Inherit Through Fathers

Children have no control over the actions of their parents. Consequently, they should not be
penalized because their parents chose to have them without the benefit of marriage. Therefore, the
Supreme Court has taken steps to ensure that non-marital children have the opportunity to inherit
from their fathers. From a public policy perspective, this makes sense because a man has a legal duty
to provide financial support for his child(ren). That obligation should not end with death of the
man. Courts have been less inclined to require that the non-marital child be given the right to inherit
through his or her father. This is especially true if that mandate would frustrate the intent of a
testator. That issue is taken up in the next case.

In re Dumaine, 600 A.2d 127 (N.H. 1991)
BATCHELEDER, J.
Elizabeth Ann Charney appeals the ruling of the Superior Court (Pappagianis, J.) that she is not a
member of the class of “legitimate” beneficiaries of the Dumaines and Dumaines New Fund trusts.
She raises five issues on appeal. First, she argues that the trial court erred in its construction of the
term “legitimate” as “lawfully begotten, born in wedlock.” Second, she asserts that the trial court
improperly relied on depositions containing inadmissible hearsay in determining the settler’s intent.
Third, she maintains that, even though she was adopted, the subsequent marriage of her natural
parents and their recognition of her as their child qualifies her as a beneficiary under the language of
the trusts. Fourth, she argues that the trial court’s determination of the settlors’ intent was
impermissible State action, violative of her rights under the equal protection and due process clauses
of the United States and New Hampshire Constitutions. Finally, she contends that the trial court
erred when it denied her request for attorney’s fees. For the reasons that followed, we affirm.
The patriarch of the Dumaine family business complex was Frederic C. Dumaine, Sr., who founded
the Amoskeag Company and amassed the wealth that formed the res of the trusts involved in this
litigation. Dumaines, a New Hampshire trust, was created by Frederic, Sr. in 1920. The Dumaines
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declaration of trust provides for income to be distributed “to legitimate children of Frederic C.
Dumaine or to their legitimate surviving children,” and provides for the distribution of the trust
principal “to and among the legitimate issue or lineal descendants of the children of Frederic C.
Dumaine living at that time.”
Dumaines New Fund, also a New Hampshire trust, was created in 1955. The Dumaines New Fund
declaration of trust provides for income to be distributed to “ legitimate children…of Frederic C.
Dumaine, Sr….and…to the legitimate issue…of any such children deceased,” and provides for the
distribution of the trust principal “to the legitimate issue of Frederic C. Dumaine, Sr.”
On January 19, 1956, Elizabeth Ann Charney was born to Evelyn Lafferty Richardson Humphreys,
who was unmarried at the time. Pierre Dumaine, a son of Frederic C. Dumaine, Sr., was the father.
At the time of the birth, however, Pierre Dumaine was married to Margaret Lael Edwards Dumaine,
by whom he had two children, Peter Thomas Dumaine and Lael Elizabeth Dumaine Fuhs.
Evelyn Humphreys placed the baby for adoption immediately after she was born, and the child was
adopted by John and Nelda Scudder of Brooklyn, New York, in 1957. Pierre and Margaret Edwards
Dumaine were divorced in 1961. Pierre and Evelyn Humphreys were married six days later. In
1978, John Scudder contacted the attorney who had facilitated the adoption and stated that his
daughter, seeking to determine her roots, wanted to locate her biological parents. She was then
twenty-two years old, married, and the mother of one son. She was subsequently reunited with her
biological parents and, during the next nine years, visited with them on three other occasions and
attended their funerals.
The trustees of the Dumaines and Dumaines New Fund trusts sought a determination by the
superior court of the class of beneficiaries entitled to distributions of income and principal under the
trusts, and specifically of the rights of Elizabeth Ann Charney under those trusts. The superior
court ruled that Charney was not a beneficiary of the trusts because she was not “lawfully begotten,
born in wedlock.” This appeal followed.
At the outset, we must determine which jurisdiction’s law controls the interpretation of the terms of
the trusts. Charney argues that New York law should be applied, because it is the State where the
birth, adoption, and initial acts of recognition occurred and, therefore, has significant relevant policy
considerations to be preserved and protected. In this case, both trusts specifically state that they are
executed “in the State of New Hampshire and with reference to the laws thereof; and the rights of
all parties and the construction and effect of each and every provision shall be subject to and
construed according to the laws of said State.” We will respect the settlor’s intent that New
Hampshire law should govern the trust instruments. See, e.g., In re Lykes Estate, 113 N.H. 282, 284,
305 A.2d 684, 685 (1973) (New Hampshire testamentary trust interpreted under Texas law,
according to direction of testator); Restatement (second) of Conflict of Laws §§ 268, 277 (1977).
Moreover, this court has previously applied New Hampshire law in interpreting one of the trusts
involved here. See Bartlett v. Dumaine 128 N.H. 497, 523 A.2d 1 (1986). Consequently, we hold that
New Hampshire law applies.
Charney first argues that the term “legitimate” is unambiguous and, as such, should be given its legal
definition, which she contends is “to make lawful.” We agree that the term is unambiguous, but
reject Charney’s proposed definition.
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The definition of “legitimate” proffered by Charney, i.e., “to make lawful,” applies only when the
term is used as a verb. Indeed, the example employed in the definition of the verb “to legitimate” in
Black’s Law Dictionary 901 (6th ed.1990). “to place a child born before marriage on the legal footing
of those born in lawful wedlock,” is exactly what Charney is striving to do in this case. Because of
the use of the term as an adjective in the trust documents, however, her efforts “to legitimate” her
status must fail.
“In searching for the proper interpretation of words used in a written instrument, we require that
the words and phrases be given their common meaning.” In re Trust u/w/o Smith, 131 N.H. 396,
398, 553 A.2d 323, 324 (1988). The classes of beneficiaries entitled to distributions under these
trusts are described alternatively as “legitimate children,” “legitimate surviving children,”
“legitimate” is used as an adjective; nowhere in the trust instruments is it employed as a verb. The
term’s common meaning as an adjective is found in Webster’s Third New Dictionary 1291 (3rd ed.
1961): “lawfully begotten: born in wedlock: having full filial rights and obligations by birth.” Thus, a
child whose parents were unwed at the time of his or her birth, regardless of the child’s subsequent
adoption or the intermarriage of his or her parents, is not “legitimate” under the term’s common
meaning and as the term is used I the trust documents.
Focusing on the phrase “legitimate issue or lineal descendants,” which describes the ultimate takers
of the trust assets upon termination of the Dumaines trust, Charney contends that, even if this court
excludes her from the class of “legitimate issue,” she is nevertheless entitled to take as a “lineal
descendant.” We agree with the trial court, however, that “legitimate” modifies both “issue” and
“lineal descendants.” A review of the trust instruments indicates that each references to the
beneficiaries includes the term “legitimate” as a modifier. This manifests the settlor’s purpose to
benefit only those of his descendants who are “legitimate.” See Bartlett, 128 N.H. at 504, 523 A.2d
at 6 (settlor’s intend to be determined by the terms of the trust). Moreover, in the analogous
principal distribution provision of the Dumaines New Fund trust, the distribution of assets on the
trust’s termination is directed to “legitimate issue;” the phrase “or lineal descendants” does not
appear.
Charney also maintains that the trial court erred when it ruled that “legitimate” was ambiguous
because it went outside the four corners of the document to determine the settlor’s intent. She
contends that, in doing so, the trial court erroneously considered inadmissible hearsay and
improperly denied her a full evidentiary hearing. Because we hold that the term “legitimate” as
employed in the trust documents is unambiguous and, as such, requires no parole evidence, we need
not address this argument.
In addition, Charney contends that RSA 457:42 entitles her to take under the trusts. That statute
provides:
“Marriage of Parents. Where the parents of children born before marriage afterwards
intermarry, and recognize such children as their own, such children shall be legitimate and
shall inherit equally with their other children under the statute of distribution.”
(Emphasis added.) On its face, the statute’s purpose is to define the inheritance rights of children
born out of wedlock whose natural parents had later intermarried, recognized them, and died
intestate. It does not govern the distribution of funds under private trust document. We therefore
dismiss Charney’s argument to the contrary.
211

Charney further argues that her intervening adoption did not negate her legitimization, which was
accomplished by her parents’ intermarriage and recognition of her s their child. Because we have
held that her parents’ marital status at the time of her birth controls her ability to take under the
trusts, any event subsequent to her birth, such as her adoption, are of no consequence to her
beneficiary status.
In support of the arguments presented above, Charney offers several unique theories as to why she
should be included in the class of beneficiaries under the trusts. We find none of them to be
compelling. First, she argues that Pierre Dumaine expressed in his will that it was his desire that she
should be a beneficiary. However, absent a power of appointment over his share of the trust
distributions, which he did not have, Pierre was powerless to direct where those funds would go
upon his death. Second, she maintains that she was placed for adoption because of “fear of
economic reprisals from the trustees” and that the fact of adoption, therefore, should not exclude
her from the class of beneficiaries. Even if her allegation is true, many parents are forced to place a
child for adoption because of economic factors. Further, we have already held that her adoption
had no bearing on her ability to take under the trust instruments. Finally, Charney contends that
equity requires that an adopted child not be denied his or her “right to take” under the trust
document. This argument is equally unpersuasive, because no “right to take” ever existed.
Again focusing on her adopted status, Charney further argues that the trial court’s ruling that a child
born out of wedlock and subsequently given up for adoption will permanently retain the status of
being illegitimate, despite the subsequent intermarriage of the child’s natural parents and their
recognition of the child as their own, violated her equal protection and due process rights under the
State and Federal Constitutions. N.H. CONST. pt I, arts. 2, 12, 14; U.S. CONST. amend XIV, § 1.
We disagree.
As a preliminary matter, we will analyze the respondent’s argument under the protections afforded
by part I, articles 2, 12 and 14 of the New Hampshire Constitution. See Sate v. Ball, 124 N.H. 226,
231, 471 A.2d 347, 350 (1983). To that extent, we look to federal cases merely for guidance. See In
re Certain Scholarship Funds, 133 N.H. 227, 229-30, 575 A.2d 1325, 1326-27 (1990).
We first address Charney’s argument that the trial court’s ruling resulted in a denial of her right to
equal protection as a member of a class of children born out of wedlock. In order to implicate the
provisions of the equal protection clause, however, the requisite “state action” must be
demonstrated. In re Certain Scholarship Funds, supra at 230, 575 A.2d at 1327. Absent some action that
may fairly be attributed to the State and Federal Constitutions “‘erect[ ] no shield against merely
private conduct, however discriminating or wrongful.’” In re Certain Scholarship Funds supra (quoting
Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948)).
The trial court rejected Charney’s constitutional claim, ruling:
“[A]ny adverse consequences from the fact she was not born in wedlock are not the result
of state statutes or state provisions on descent and distribution, illegitimacy, adoption, or
intermarriage of biological parents, but are the sole result of the intention of Frederic C.
Dumaine, Sr., and of the other settlors that a beneficiary under Dumaines and Dumaines
New Fund can be only a person ‘lawfully begotten, born in wedlock.’”
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We fail to find the necessary State action in the trial court’s interpretation of the trust documents.
See Evans v. Abney, 396 U.S. 435, 444, 90 S.Ct. 628, 633 (1970) (action of Georgia Supreme Court
declaring trust terminated did not constitute State action): see also In re Certain Scholarship Funds, supra
at 234, 575 A. 2d at 1329. To hold otherwise would subject all judicial interpretations of private
agreements to equal protection challenges.
The contention that Charney was divested of property rights in violation of the guarantees of due
process is equally unfounded. “[I]t is the alteration or extinguishing of a right or status previously
recognized by state law that invokes the procedural guarantees contained in the due process clause.”
Medina v. Rudman, 545 F.2d 244, 250 (1st Cir. 1976), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d
177 (1977). We have already determined, however, that no “right to take” under the trusts ever
existed. Consequently, we reject Charney’s due process claim.
Finally, Charney argues that the trial court erred as a matter of law when it denied her request for
attorney’s fees. “[T]he allowance of attorneys’ fees is not a matter of right but rests in the cautiously
exercised discretion of the court. Attorneys’ fees should be allowed only in those cases where the
litigation is conducted in good faith for the primary benefit of the trust as a whole in relation to
substantial and material issues essential to the proper administration of the trust.” Concord Nat. Bank
v. Haverhill, 101 N.H. 416, 419, 145 A.2d 61, 63 (1958). The trial court found that “Elizabeth Ann
Charney participated in this litigation primarily for her personal benefit and not for the primary
benefit of the trust as a whole.” Although Charney argues that, by participating in these
proceedings, she “aided the trial court with key and relevant legal sources, authorities, and legal
analysis, and has corrected misleading and erroneous assertions made by [the petitioners],” her
evaluation of the benefit to the trial court from her participation in this litigation is not the
determinative factor. The inquiry is whether her primary motive was the benefit of the trusts as a
whole or her own benefit. On the facts of this case, the trial court did not abuse its discretion in
determining that any purported aid it received from Charney was not “for the primary benefit of the
trust as a whole.” Id.
Affirmed.
Notes and Questions
1. Why do you think that the settlor of the trust insisted upon only legitimate heirs benefiting from
the trust?
2. If Charney’s father had been the settler of the trust and the trust contained the same language,
would Charney have had the right to take under the trust?
3. From a public policy perspective, should non-martial children be permitted to inherit through
their fathers?

Uniform Parentage Act § 202. No Discrimination Based on Marital Status.36
36 Adopted by the following states: Alaska, Arizona, California, Colorado, Connecticut, Hawaii, Kansas, Michigan,

Minnesota, Montana, Nevada, New Jersey, New Mexico, North Dakota, Rhode Island, South Dakota, Washington,
Washington D.C. and Utah.

213

A child born to parents who are not married to each other has the same rights under the
law as a child born to parents who are married to each other.
Under the UPA, the right of children to inherit from their fathers’ estates does not depend
upon the marital status of the parents at the time they were born. Under this approach, non-marital
children are given an equal opportunity to inherit from their fathers’ estates. Approximately twenty
states have included language modeled after the language in the UPA in their intestacy statutes.
According to the scheme set forth by the UPA, when the father and mother do not marry or
attempt to marry, the law presumes the existence of a father-child relationship between the father
and child if one of the following conditions exists: (1) before the child reaches the age of two, the
father and child live in the same household and the father (openly) holds the child out as his natural
child; or (2) the fathers files a written acknowledgment of paternity with an appropriate court of
administrative agency. If the presumption is not rebutted, the child has a right to inherit on equal par
with the man’s marital children. If neither one of the stated requirements is met, the non-marital
child has the burden of proving a claim of paternity in order to be able to inherit from his or her
father.
The UPA provides equal opportunity, but not true equality, for the non-marital child. The
marital child does not have to take any action for the presumption of a parent-child relationship to
arise. To the contrary, for the non-marital child, the presumption of paternity arises only if his or her
father takes some type of affirmative action.
Notes and Questions
1. What are the pros and cons of the UPA approach?
2. Does the UPA approach balance the interests of the state, the non-marital children and the
marital children?
3. Intestacy is the domain of the individual states. In enacting intestacy statutes, state legislatures
attempt to create systems that serve the interests of their citizens. With regards to the inheritance
rights of non-marital children, is there a need for the states to take a uniform approach? Why? Why
not?
4. For a discussion of the history of the UPA’s treatment of non-marital children, See Olga V.
Kotlyarevskaya & Sara B. Poster, Separation Anxiety Among California’s Courts: Addressing the Confusion
over Same-Sex Partners’ Parentage Claims, 10 U.C. Davis J. Juv. L. & Pol’y 153, 157-58 (2006).

214

Sample State Statutes
West's Annotated Indiana Code
29-1-2-7 Illegitimate children; inheritance
Sec. 7.
(a) For the purpose of inheritance (on the maternal side) to, through, and from a child born out of
wedlock, the child shall be treated as if the child's mother were married to the child's father at the
time of the child's birth, so that the child and the child's issue shall inherit from the child's mother
and from the child's maternal kindred, both descendants and collaterals, in all degrees, and they may
inherit from the child. The child shall also be treated as if the child's mother were married to the
child's father at the time of the child's birth, for the purpose of determining homestead rights and
the making of family allowances.
(b) For the purpose of inheritance (on the paternal side) to, through, and from a child born out of
wedlock, the child shall be treated as if the child's father were married to the child's mother at the
time of the child's birth, if one (1) of the following requirements is met:
(1) The paternity of a child who was at least twenty (20) years of age when the father died
has been established by law in a cause of action that is filed during the father's lifetime.
(2) The paternity of a child who was less than twenty (20) years of age when the father died
has been established by law in a cause of action that is filed:
(A) during the father's lifetime; or
(B) within five (5) months after the father's death.
(3) The paternity of a child born after the father died has been established by law in a cause
of action that is filed within eleven (11) months after the father's death.
(4) The putative father marries the mother of the child and acknowledges the child to be his
own.
(5) The putative father executes a paternity affidavit as set forth in IC 16-37-2-2.1.
(c) The testimony of the mother may be received in evidence to establish such paternity and
acknowledgment, but no judgment shall be made upon the evidence of the mother alone. The
evidence of the mother must be supported by corroborative evidence or circumstances.
(d) If paternity is established as described in this section, the child shall be treated as if the child's
father were married to the child's mother at the time of the child's birth, so that the child and the
child's issue shall inherit from the child's father and from the child's paternal kindred, both
descendants and collateral, in all degrees, and they may inherit from the child. The child shall also be
treated as if the child's father were married to the child's mother at the time of the child's birth, for
the purpose of determining homestead rights and the making of family allowances.
215

Code of Georgia Annotated
§ 53-2-3. Rights of inheritance of child born out of wedlock
The rights of inheritance of a child born out of wedlock shall be as follows:
(1) A child born out of wedlock may inherit in the same manner as though legitimate from or
through the child's mother, the other children of the mother, and any other maternal kin;
(2)
(A) A child born out of wedlock may not inherit from or through the child's father, the other
children of the father, or any paternal kin by reason of the paternal kinship, unless:
(i) A court of competent jurisdiction has entered an order declaring the child to be
legitimate, under the authority of Code Section 19-7-22 or such other authority as
may be provided by law;
(ii) A court of competent jurisdiction has otherwise entered a court order
establishing paternity;
(iii) The father has executed a sworn statement signed by him attesting to the parentchild relationship;
(iv) The father has signed the birth certificate of the child; or
(v) There is other clear and convincing evidence that the child is the child of the
father.
(B)(i) Subparagraph (A) of this paragraph notwithstanding, a child born out of wedlock may
inherit from or through the father, other children of the father, or any paternal kin by reason
of the paternal kinship if evidence of the rebuttable presumption of paternity described in
this subparagraph is filed with the court before which proceedings on the estate are pending
and the presumption is not overcome to the satisfaction of the trier of fact by clear and
convincing evidence.
(ii) There shall exist a rebuttable presumption of paternity of a child born out of
wedlock if parentage-determination genetic testing establishes at least a 97 percent
probability of paternity. Parentage-determination genetic testing shall include, but
not be limited to, red cell antigen, human leucocyte antigen (HLA), red cell enzyme,
and serum protein electrophoresis tests or testing by deoxyribonucleic acid (DNA)
probes.
(C) If any one of the requirements of divisions (i) through (v) of subparagraph (A) of this
paragraph is fulfilled, or if the presumption of paternity set forth in subparagraph (B) of this
paragraph shall have been established and shall not have been rebutted by clear and
convincing evidence, a child born out of wedlock may inherit in the same manner as though
216

legitimate from and through the child's father, the other children of his or her father, and
any other paternal kin;
(3) In distributions under this Code section, the children of a deceased child born out of wedlock
shall represent that deceased child.
South Carolina Probate Code
§ 62-2-109. Meaning of child and related terms.
If, for purposes of intestate succession, a relationship of parent and child must be established to
determine succession by, through, or from a person:
(1) from the date the final decree of adoption is entered, and except as otherwise provided in § 20-71825, an adopted person is the child of an adopting parent and not of the natural parents except that
adoption of a child by the spouse of a natural parent has no effect on the relationship between the
child and that natural parent.
(2) In cases not covered by (1), a person born out of wedlock is a child of the mother. That person
is also a child of the father if:
(i) the natural parents participated in a marriage ceremony before or after the birth of the
child, even though the attempted marriage is void; or
(ii) the paternity is established by an adjudication commenced before the death of the father
or within the later of eight months after the death of the father or six months after the initial
appointment of a personal representative of his estate and, if after his death, by clear and
convincing proof, except that the paternity established under this subitem (ii) is ineffective to
qualify the father or his kindred to inherit from or through the child unless the father has
openly treated the child as his and has not refused to support the child.
(3) A person is not the child of a parent whose parental rights have been terminated under §20-71574 of the 1976 Code, except that the termination of parental rights is ineffective to disqualify the
child or its kindred to inherit from or through the parent.
McKinney’s Consolidated Laws of New York Annotated
§ 4-1.2 Inheritance by non-marital children
(a) For the purposes of this article:
(1) A non-marital child is the legitimate child of his mother so that he and his
Issue inherit from his mother and from his maternal kindred.
(2) A non-marital child is the legitimate child of his father so that he and his issue inherit
from his father and his paternal kindred if:
(A) a court of competent jurisdiction has, during the lifetime of the father, made an
order of filiation declaring paternity or the mother and father of the child have
executed an acknowledgment of paternity pursuant to section four thousand one
217

hundred thirty-five-b of the public health law, which has been filed with the registrar
of the district in which the birth certificate has been filed or;
(B) the father of the child has signed an instrument acknowledging paternity,
provided that
(i) such instrument is acknowledged or executed or proved in the form
required to entitle a deed to be recorded in the presence of one or more
witnesses and acknowledged by such witness or witnesses, in either case,
before a notary public or other officer authorized to take proof of deeds and
(ii) such instrument is filed within sixty days from the making thereof with
the putative father registry established by the state department of social
services pursuant to section three hundred seventy-two-c of the social
services law, as added by chapter six hundred sixty-five of the laws of
nineteen hundred seventy-six and
(iii) the department of social services shall, within seven days of the filing of
the instrument, send written notice by registered mail to the mother and
other legal guardian of such child, notifying them that an acknowledgment of
paternity instrument acknowledged or executed by such father has been duly
filed or;
(C) paternity has been established by clear and convincing evidence and the father of
the child has openly and notoriously acknowledged the child as his own; or
(D) a blood genetic marker test had been administered to the father which together
with other evidence establishes paternity by clear and convincing evidence.
(3) The existence of an agreement obligating the father to support the non-marital child does
not qualify such child or his issue to inherit from the father in the absence of an order of
filiation made or acknowledgement of paternity as prescribed by subparagraph (2).
(4) A motion for relief from an order of filiation may be made only by the father and a
motion for relief from and acknowledgment of paternity may be made by the father, mother
or other legal guardian of such child, or the child, provided however, such motion must be
made within one year from the entry of such order or from the date of written notice as
provided for in subparagraph (2).
(b) If a non-marital child dies, his surviving spouse, issue, mother, maternal kindred, father and
paternal kindred inherit and are entitled to letters of administration as if the decedent were
legitimate, provided that the father and paternal kindred may inherit or obtain such letters only if the
paternity of the non-marital child has been established pursuant to provisions of clause (A) of
subparagraph (2) of paragraph (a) or the father has signed an instrument acknowledging paternity
and filed the same in accordance with the provisions of clause (B) of subparagraph (2) of paragraph
(a) or paternity has been established by clear and convincing evidence and the father of the child has
openly and notoriously acknowledged the child as his own.
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Notes and Questions
1. Evaluate the above statutes in light of the legislative mandate to balance the interests of the state,
the non-marital child and the marital child.
2. Are there any legitimate reasons to treat paternal inheritance different from maternal inheritance?
3. What public policy or state interest is promoted by each of the above statutes?
4. A key purpose of the intestacy system is to carry out the presumed intent of the decedent. Is that
purpose promoted by the mandates of the above statutes?
5. What factors should the probate court be permitted to consider in deciding how to distribute a
man’s estate under the intestacy system?
6. In the majority of jurisdictions, in order for the non-martial child to inherit from his or her father,
he or she must prove paternity. What methods of proof should be acceptable? See Malone vs. Thomas,
24 S.W.3d 412 (Tex. App-Houston (1 Dist.) 2000).
7. Illegitimacy is a suspect classification entitled to strict scrutiny. See Taylor v. Hoffman, 544 S.E.2d
387 (W. Va. 2001). Should the status of illegitimacy be on par with race or other protected classes?
6. In some jurisdictions, the non-marital child must be legitimized in order to have the right to
inherit from his or her father. Should the doctrine of equitable legitimacy be recognized to satisfy
the statutory requirement? Consider the following example. Emma and Jarvis lived together, without
the benefit of marriage, for almost twenty-six years. They were the parents of two adult children and
five grandchildren. The couple and their children have always functioned as a family. Jarvis died
intestate. He was survived by Emma, their two children, their five grandchildren. Jarvis was also
survived by his two sisters. In order to inherit from Jarvis, the children had to be legitimized prior to
his death. The statute sets out the steps the children needed to take to be considered legitimate. In
order to be fair to the non-marital children and to carry out the presumed intent of Jarvis, should the
court be able to use its equitable powers to declare them to be legitimate?
5.3

Stepchildren and Foster Children

In the majority of jurisdictions, stepchildren and foster children are not entitled to inherit
from stepparents and foster parents. Nonetheless, if the decedent is not survived by any other heirs
related to the decedent by blood or adoption, the stepchildren and/or foster children may be
allowed to inherit from the decedent’s estate. In those jurisdictions, the only time that stepchildren
or foster children can inherit is if it is necessary to avoid having the property escheat to the state.
5.3.1

Stepchildren/Foster Children are not entitled to inherit

When people hear the word “stepparent”, the images of Cinderella’s cruel stepmother and
stepsisters come to mind. The Cinderella story focuses upon the discord that can exist in a blended
family. Cinderella and her stepmother did not have a loving parent-child relationship. This vision of
blended families may contribute to the treatment of stepchildren with regards to inheritance. The
219

purpose of the intestacy system is to carry out the presumed intent of the decedent. The exclusion
of 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
same home for very long. Thus, the foster parent and the foster child did not have time to develop a
relationship. Given the nature of the foster care system, it was impossible to envision a foster
parent-foster child relationship that would justify treating foster children on par with biological and
adopted children for inheritance purposes.

Wyo. Stat. Ann. § 2-4-104 (1977)
Persons of the half-blood inherit the same share they would inherit if they were of the whole blood,
but stepchildren and foster children and their descendants do not inherit.
Currently, people are creating families in non-traditional ways. Stepchildren are becoming
totally integrated into families and foster children are remaining in the same home during most of
their time in the system. These changes have enabled stepparents/foster parents to bond with
stepchildren/foster children. As a result, the law has begun to recognize and respect those
relationships. The consequence is that, in some jurisdictions, stepchildren and foster children are
given the opportunity to inherit from their stepparents and foster parents.37
5.3.2

Stepchildren/Foster Children may inherit if the necessary relationship exists

West’s Ann. Cal. Prob. Code § 6454
For the purpose of determining intestate succession by a person or the person’s issue from or
through a foster parent or stepparent, the relationship of parent and child exists between that person
and the person’s foster parent or stepparent of both of the following requirements are satisfied:
(a) The relationship began during the person’s minority and continued throughout the joint lifetimes
of the person and the person’s foster parent or stepparent.
(b) It is established by clear and convincing evidence that the foster parent or stepparent would have
adopted the person but for a legal barrier.

Estate of Claffey, 257 Cal. Rptr. 197 (Cal. App. 3d 1989)
SONESHINE, Associate Justice.
Monroe Thomas McKenzie and Janet Turner appeal a judgment denying them, as stepchildren of
Bessie Claffey, any entitlement to Claffey's estate. They contend the trial court prejudicially erred in
instructing the jury to find a “family relationship,” rather than a mere stepchild/stepparent
relationship, as a prerequisite to their intestate succession.
See Susan N. Gary, Adapting Intestacy Laws to Changing Families, 18 Law & Ineq. 1 (Winter 2000); Terin Barbas Cremer,
Reforming Intestate Inheritance For Stepchildren and Stepparents, 18 Cardozo L.J. & Gender 89 (2011).
37

220

I
Thomas and Janet are the children of John and Edythe McKenzie. The McKenzies were divorced in
March 1934. Custody of Thomas and Janet, ten and seven years of age respectively at the time of
divorce, was granted to the mother pursuant to stipulation of the parties. Thereafter John married
Bessie Stokes in April 1935. After John's death in 1948, Bessie married Edward Claffey from whom
she obtained a divorce in 1953. Bessie died intestate in April 1985.
On August 30, 1985, Thomas and Janet filed Statements of Claim of Interest in the Estate. (Prob.
Code, § 1080.) The statements contain no allegation they lived with their father and Bessie.
Nonetheless, they claimed as stepchildren they were Bessie's “closest heirs at law,” because a
“parent/child relationship” arose upon her marriage to John. They attribute Bessie's failure to adopt
them to the John/Edythe divorce which was “so bitter that [Edythe] refused the request of Bessie
Claffey to adopt [them].”
On September 19, Dorothy Creeks filed a statement of interest as a first cousin of Bessie, attaching a
list of other known heirs. She stated the property “consists of cash in the approximate amount of
$322,000.00 and other property with an approximate value of $20,000.00, all the separate property
of the deceased.”
The opposing statements placed the matter of inheritance at issue; Thomas and Janet requested a
jury, and trial began in June 1986. By special verdict, the jury found against Thomas and Janet.
II
Prior to January 1, 1985, a stepchild had no right to inherit from a stepparent. On that date, a
general revision of a large portion of the Probate Code took effect. One such provision was the
addition of section 6408, setting forth the requirements for establishing a parent and child
relationship “for the purpose of determining intestate succession....” The relationship exists between
a child and his or her natural parent “regardless of the marital status of the natural parents” (§ 6408,
subd. (a)(1)) and “between an adopted person and his or her adopting parent or parents.” (§ 6408,
subd. (a)(2).)
The innovative portion, adapted from the Uniform Probate Code, provided: “The relationship
between a person and his or her foster parent or stepparent has the same effect as if it were an
adoptive relationship if (A) the relationship began during the person's minority and continued
throughout the parties' joint lifetimes and (B) it is established by clear and convincing evidence that
the foster parent or stepparent would have adopted the person but for a legal barrier.” (§ 6408,
former subd. (a)(3).)
Here, the trial court determined the “relationship” referenced above contemplated one “like that of”
a natural parent and child in the sense of a “family” relationship. Consequently, the instructions and
the special verdict forms contained that language. The jurors were told Thomas and Janet had the
burden of establishing, by a preponderance of the evidence, “a relationship like that of parent and
child between themselves and Bessie....” The facts necessary to establish the relationship were (1)
Thomas' and Janet's father married Bessie while they were minors, (2) they had a “family
relationship” during their minority, and (3) “a parent and child family relationship existed between
Bessie and [the children] which began while [they were minors] and continued throughout their joint
221

lifetimes.”
By special verdict, the jury found no “parent/child-like family relationship between BESSIE
CLAFFEY and [the stepchildren] [to] exist during [the stepchildren's] minority and continue
throughout their joint lifetimes.” They further found Edythe and Bessie discussed only “temporary
possession” of the children for medical reasons; and although there was a legal barrier to adoption,
there was no clear and convincing evidence Bessie would have adopted the stepchildren but for that
barrier.
III
Thomas objects to the trial court's insertion of the term “family” in the instructions and verdict
forms presented to the jury. He claims the court “instilled a certain vision of the type of relationship
necessary for § 6408 to apply which is not required by the literal meaning of § 6408.” In particular,
he and Janet insist the “relationship” in question is merely “a relationship between a person and his
or her stepparent or a ‘stepchild/stepparent’ relationship.” We disagree.
The meaning of section 6408, subdivision (a)(3) is not so abundantly clear as Thomas contends. The
term “relationship” in subdivision (a)(3)(A) cannot refer solely to the dictionary meaning, i.e., the
stepchild/stepparent relationship that arises upon the natural parent's remarriage. If that were true,
every remarriage, standing alone, would satisfy part (A) whether the new partner even knew the
children or was ever allowed to see them. Consequently, the necessary “relationship,” existing during
minority and continuing throughout the parties' lifetime, must encompass something more than an
exchange of wedding vows between the natural father and a stranger.
“‘“The most fundamental rule of statutory construction is that ‘the court should ascertain the intent
of the Legislature so as to effectuate the purpose of the law.’ [Citations.]”'” (Jutzi v. County of Los
Angeles (1987) 196 Cal.App.3d 637, 650, 242 Cal.Rptr. 74.) Section 6408, a part of the revision of the
statutes relating to wills and intestate succession, was drafted by and proposed to the Legislature by
the California Law Revision Commission. The initial presentation contained no reference to
stepchildren except as they were officially adopted by the stepparent. Comment to the section stated,
“A person who is only a stepchild ... is not a child.” A later recommendation by the commission's
probate consultant suggested the addition of what would become subdivision (a)(3). The consultant
noted, under the proposed addition, provision would be made “for step- and foster children in very
limited situations, with the necessary safeguards incorporated by treating the case like an adoption....”
(Emphasis added.) The proposal was accepted at the next revision committee meeting.
As reworked and amended, the comprehensive redrafting of the Probate Code was known as Bill
No. AB 25 and contained subdivision (a)(3) above. The commission's “Explanation of Assembly Bill
No. 25” specifically refers to establishment of a stepchild's right to inherit as based on a “family
relationship.” In its report to the Assembly, the Committee on the Judiciary digested the relevant
section as follows: “Gives a foster child and a stepchild the same status as an adopted child if the
family relationship began during the child's minority....” (Emphasis added.) Similarly, the Senate
Committee on Judiciary reported to its session that “[t]his bill would also create in a foster child and
a stepchild the same inheritance rights as in an adopted child if the family relationship began during the
child's minority....” (Emphasis added.)
By analogy, we note the provisions of section 6408.5, which further define the parent and child
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relationship of an adopted child and its natural and adoptive parents. In delineating those situations
where the child may inherit from both the natural and the adoptive parents, the operative issue is
whether the “natural parent and the adopted person lived together at any time as parent and child....” (§
6408.5, subd. (a)(1), emphasis added.)
Most important, the categories of foster children and stepchildren are dealt with in the same section
and receive identical treatment. In both instances, the “relationship” must originate during the
child's minority and continue throughout the parties' lifetimes. It would be anomalous to find less of
a “family relationship” required for inheritance by a stepchild than by a foster child. Yet “[a] foster
parent has been defined as ‘one who, although not legally related to the child by direct parental
blood ties, nor decreed a parent in formal adoption proceedings, assumes the role of parent.’
[Citations.]” (In re Lynna B. (1979) 92 Cal.App.3d 682, 696, 155 Cal.Rptr. 256.) They are essentially
“de facto” parents. (In re B.G. (1974) 11 Cal.3d 679, 693, 114 Cal.Rptr. 444, 523 P.2d 244.) We do
not perceive the Legislature as requiring less familial or parental involvement by a stepparent where
the stepchild seeks to inherit after the death of the stepparent.
We are convinced the relationship envisioned by the Law Revision Commission, as framers of the
revised code, and the Legislature, which enacted the proposals as amended, embraced the terms
pronounced by the trial court. Distribution of the estate of one dying without a will to his or her
unadopted stepchild rather than to heirs claiming by blood relationship is not automatic and must be
based on a review of each situation. Where the child has lived with one natural parent rather than
the other natural parent and the stepparent, any alleged relationship is necessarily more difficult to
establish.
Here, the jury found there existed no family relationship like that of a parent and child between
Bessie and either Thomas or Janet. The sufficiency of the evidence to support this finding is not
contested. And because we find no reason to disagree with the court's instructions to the jury, we
find no error.
Judgment affirmed.
5.3.3

Stepchildren/Foster Children may inherit if there are no other heirs available

MD Code, Estates and Trusts, § 3-104
(e) If there is no surviving blood relative entitled to inherit under this section, it shall be divided into
as many equal shares as there are stepchildren of the decedent who survive the decedent and
stepchildren of the decedent who did not survive the decedent but of whom issue did survive the
decedent. Each stepchild of the decedent who did survive the decedent shall receive one share and
the issue of each stepchild of the decedent who did not survive the decedent but of whom issue did
survive the decedent shall receive one share apportioned by applying the pattern of representation
set forth in § 1-210. As used in this subsection, “stepchild” shall mean the child of any spouse of
the decedent if such spouse was not divorced from the decedent.

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Estate of Smith, 299 P.2d 550 (Wash. 1956)
SCHWELLENBACH, J.
Ernest E. Smith died testate. His will provided:
‘Article First: I give and bequeath unto each of my children, namely, Marion Gildberg, residing at
Seattle, Washington, Adelle Benson, residing at Portland, Oregon, Virginia McAllister, residing at
Cottage Grove, Oregon; Georgia Dolphus, residing at Long Beach, California, and Ernest E. Smith,
Jr., residing at Monroe, Washington, the sum of one dollar.
‘Article Second: I hereby give, devise and bequeath all of the rest, residue and remainder of my estate,
real, personal and mixed, of whatsoever character, and wheresoever situated, unto my beloved wife,
Jessie M. Smith.’
Of the ‘children’ mentioned in the will, only Ernest E. Smith, Jr., was a child of the decedent. He
was born of the marriage between decedent and Jessie M. Smith. The others were the issue of a
previous marriage between Jessie M. Smith and Jorgen P. Gildberg.
Marion Gildberg, Georgia Dolphus, Ernest E. Smith, Jr., and Jessie M. Smith, predeceased Ernest E.
Smith. Ernest E. Smith, Jr., left as his issue one child, Virginia H. Nicholson.
The will was admitted to probate and in his final report the administrator with will annexed
petitioned that the estate be distributed equally to Adele Benson, Virginia McAllister Smith, and
Virginia H. Nicholson, the granddaughter. The latter, claiming to be the sole heir, filed objections
and the trial court ruled that Adele Benson and Virginia McAllister Smith, as stepchildren of the
decedent, had no right of inheritance from him. One dollar was ordered to be distributed to each of
the surviving stepchildren in accordance with the terms of the will and the residue of the estate
distributed to Virginia Nicholson. Adele Benson and Virginia McAllister Smith appeal.
Jessie M. Smith having predeceased her husband, the clause in his will leaving her the residue of his
estate, lapsed. There being no further residuary provision, that portion of his property passes by the
law of descent to his heirs-at-law. In re Sims' Estate, 39 Wash.2d 288, 235 P.2d 204.
The question presented in this appeal is whether a stepchild may inherit from his stepparent as an
heir-at-law. At common law the relationship of stepparent and stepchild conferred no rights and
imposed no duties. The question of whether appellants may inherit in this instance depends wholly
upon the statutes of descent and distribution. The property before the court was Ernest E. Smith's
separate property, having been acquired by him from the community estate of himself and Jessie M.
Smith under probate procedure.
RCW 11.04.020 provides in part:
‘When any person dies seized of any lands, tenements or hereditaments, or any right thereto,
or entitled to any interest therein, in fee simple, or for the life of another, as his separate
estate, not having devised the same, they shall descend subject to the debts as follows:
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‘Fifth. If the decedent leaves no husband or wife the estate goes in equal shares to his
children, and to the issue of any deceased child, by right of representation.
‘The words ‘issue,’ ‘child’ and ‘children’ wherever used in this section shall be construed to
include lawfully adopted children.' RCW 11.04.030(3) provides:
‘The residue, if any, of the personal estate shall be distributed among the same persons as
would be entitled to the real estate by RCW 11.04.020, and in the same proportion as
provided, excepting as herein further provided; * * *.’
A child is the son or daughter, in relation to the father or mother. A stepchild is the son or daughter
of one's wife by a former husband, or of one's husband by a former wife.
The court found that there was no evidence of the decedent having lawfully adopted Adele Benson
or Virginia McAllister Smith.
Stepchildren are not included in the terms of the last paragraph of RCW 11.04.020 by implication.
The status of stepchildren was considered by the legislature in a separate section. RCW 11.08.010
provides for inheritance from a stepparent in order to avoid escheat of the property to the state. The
right of a stepchild to inherit from a stepparent is limited to the circumstances outlined therein.
Appellants contend that the legislature eliminated any distinction between kindred of the half blood
and of the whole blood when it enacted RCW 11.04.100.
‘The degree of kindred shall be computed according to the rules of the civil law, and the
kindred of the half blood shall inherit equally with those of the whole blood in the same
degree, unless the inheritance comes to the intestate by descent, devise, or gift from one of
his ancestors, or kindred of such ancestor's blood, in which case all those who are not of the
blood of such ancestors shall be excluded from such inheritance. The words ‘kindred of such
ancestor's blood’ and ‘blood of such ancestors' shall be construed to include any child
lawfully adopted by one who is in fact of the blood of such ancestor.’
In State v. Bielman, 86 Wash. 460, 150 P. 1194, 1195, the defendant was charged with the crime of
incest with his stepdaughter, in violation of § 2455, Rem. & Bal. Code, which provided:
‘Whenever any male and female persons, nearer of kin to each other than second cousins,
computing by the rules of the civil law, whether of the half or the whole blood, shall have
sexual intercourse together, both shall be guilty of incest * * *.”
We said:
‘It is contended by the appellant that this statute refers only to persons who are blood
relations nearer of kin to each other than second cousins, computing by the rule of the civil
law. We think this contention must be sustained. The ordinary meaning of the word ‘kin’ is
‘a blood relation.’ See ‘Kin,’ 2 Words & Phrases, Second Series, p. 1306 [23 Words &
Phrases, Perm. Ed., p. 546]. Warvelle, Real Property (3d ed.), § 168. The phrase ‘whether of
the half or the whole blood,’ used in section 2455, indicates quite clearly that the section
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refers only to kindred of the blood, and not kindred by affinity. We are of the opinion,
therefore, that this section does not apply.'
In In re Field, 182 App.Div. 266, 169 N.Y.S. 677, 681, the question was whether four stepchildren
were entitled to share in their deceased stepmother's estate under the laws of descent and
distribution. The court excluded the stepchildren, saying:
‘There is no question presented in this case, therefore, of the half blood, because the four
children of her husband, John Stilwell, by his first wife, had none of her blood in their veins,
and she was the stock. If one of her children had died intestate, then his share would have
descended to each of his four half brothers and sisters and his two whole sisters, because, as
to them, he would have been the ancestor, and all would have been of the blood of their
common father, John Stilwell. But that situation is not presented.’
In re Estate of Paus, 324 Ill.App. 58, 57 N.E.2d 212, 213, involved a petition by the children of a sister
of decedent's predeceased stepfather that they be declared heirs and next of kin of decedent. Their
claim was based on a statute which provided:
‘In no case is there any distinction between the kindred of the whole and the half blood.”
S.H.A.Ill. ch. 3, § 162.
The court said:
‘We find nothing in the statute to justify the construction contended for. Five paragraphs of
the statute designate persons who shall take by descent from a deceased person. The
provision that distinction ‘in no case’ shall be made between the whole and half blood does
not create another class of persons who will take but forbids distinction between the whole and half
blood in the case of the persons named who are to take. The rule of the feudal law excluded from the
inheritance descendants who were of the half blood. The rule never found favor in this
country. The statute therefore expressly repeals that rule. This comes far short of creating
another class of persons who are to take and who are not of the blood of the deceased at all.
Petitioners' contention is without merit. They have no standing to make their claim. There is
a fundamental distinction between persons who are of the half blood and those without
inheritable blood at all.'(Italics ours.)
The ‘kindred’ mentioned in RCW 11.04.100, whether of the half blood or of the whole blood, are
kindred of the intestate. The meaning of the word ‘kin’ is a blood relation. As between a stepchild
and a stepparent there is no blood relationship, but only that designated as affinity, the relationship
which one spouse, because of marriage, has to blood relatives of the other. Here there was no blood
relationship at all between Ernest E. Smith and his two stepdaughters.
RCW 11.04.100 is not applicable to the facts in the case at bar. It prohibits distinction between
kindred of the whole blood and of the half blood who are entitled to inherit under the statutes of
descent and distribution. The only applicable statutes are RCW 11.04.020 (Fifth), and RCW
11.04.030(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.
In re Sheard's Estate, 181 Wash. 62, 42 P.2d 34, and In re Bordeaux' Estate, 37 Wash.2d 561, 225 P.2d
226

433, 26 A.L.R.2d 249,cited by appellants, dealt with the tie of affinity in connection with statutory
classification for inheritance tax purposes, and have no bearing on the disposition of this case.
Appellants contend that they should be treated as decedent's natural children because they were
raised by him and were designated as his ‘children’ in his will. No proof was offered that they were
lawfully adopted by him. The adoption of an heir is purely statutory, and can be accomplished only
by strict compliance with the statute. In re Renton's Estate, 10 Wash. 533, 39 P. 145.
The order settling final account and decree of distribution is affirmed.

Estate of Joseph, 949 P.2d 472 (Cal. 1998)
MOSK, J.
Pursuant to section 6400 et seq. of the Probate Code, the estate of a deceased parent may pass by
intestate succession to his child as heir. For these purposes, the code defines the relationship of
parent and child to exist in three situations. First, section 6450, subdivision (a), provides that the
“relationship of parent and child exists between a person and the person's natural parents, regardless
of the marital status of the natural parents.” Second, section 6450, subdivision (b), provides that the
“relationship of parent and child exists between an adopted person and the person's adopting parent
or parents.” Third, section 6454-with which we are here concerned-provides that the “relationship
of parent and child exists between [a] person and the person's foster parent or stepparent if”“(a)
[t]he relationship began during the person's minority and continued throughout the joint lifetimes of
the person and the person's foster parent or stepparent,” and “(b) [i]t is established by clear and
convincing evidence that the foster parent or stepparent would have adopted the person but for a
legal barrier.” Thus, this provision contains what may be called a “continuing relationship”
requirement: the relationship must have continued from minority until death. It also contains what
may be called a “legal barrier” requirement: A legal barrier must have been the necessary cause of
the failure to adopt.
We granted review in this proceeding in order to resolve a conflict in the Courts of Appeal
respecting the meaning of Probate Code section 6454. In Estate of Stevenson (1992) 11 Cal.App.4th
852, 14 Cal.Rptr.2d 250 (hereafter sometimes Stevenson), the Sixth Appellate District held, in
substance, that what would become section 6454 allows the legal barrier or barriers to adoption of
the foster child or stepchild by the foster parent or stepparent to have existed only at a time at which
adoption was contemplated or attempted. In Estate of Cleveland (1993) 17 Cal.App.4th 1700, 22
Cal.Rptr.2d 590 (hereafter sometimes Cleveland), Division Five of the Second Appellate District,
declining to follow Stevenson, held, in substance, that what would become the provision requires that
the legal barrier or barriers to adoption must have continued until death. As we shall explain, we
conclude that the Cleveland court was right and the Stevenson court was wrong.
I
Petitioner, Kim Barnum-Smith, asked the Probate Department of the Superior Court of Alameda
County for letters of administration of the estate of decedent, Louis Joseph, who died intestate, and
was subsequently issued such letters of administration.

227

Thereupon, petitioner asked the probate court for a determination that she was decedent's daughter
pursuant to Probate Code section 6454 and his sole heir, and that, as such, she was entitled to
distribution of his estate in its entirety. Objector, James C. Joseph, who was decedent's brother,
opposed.
After trial, the probate court determined that petitioner was not decedent's daughter or heir and,
hence, was not entitled to distribution of his estate in any part. It also revoked her letters of
administration of decedent's estate and removed her from office, concluding that, because she was
not an heir, she did not have a priority to serve over others, including objector.
In issuing orders to this effect, the probate court rendered a statement of decision, which included
the following:
Petitioner “was taken in by” decedent and his wife, who predeceased him, “and [was] raised
by them during the vast period of her minority, from age three on. [They] assisted her after
her minority by financing her efforts at San Jose State University and a local junior college.
[Decedent] ‘gave’ [her] away at her wedding. Certainly, the relationship between [decedent
and his wife and petitioner] satisfied the common law definition of ‘foster child,’ at least
during the minority and early adulthood of [petitioner], which to simplistically recite [its]
shorthand definition means one whose wellbeing is fostered by another person. For a
period, at the beginning of the relationship, and during her minority both [decedent and his
wife] would from time to time ask [petitioner's] natural parents if they ... could adopt [her].
Each such request was refused. After a while, but still during [her] minority [they]
discontinued asking.
“The real problem presented by this case is concluding the legislative meaning of, and the
purpose for, the requirement of Probate Code [section] 6454 when it requires that there be
‘... clear and convincing evidence that the foster parent ...would have adopted the [foster child] but
for a legal barrier.’ ([E]mphasis added[.]) Only two cases have surfaced which address
themselves to Probate Code [section] 6454 and they specifically address themselves to the
above mentioned [‘legal barrier’] requirement. They are: Estate of Stevenson (1991 [1992]) 11
Cal.App.4th [852, 14 Cal.Rptr.2d 250,] and Estate of Cleveland (1993) 17 Cal.App.4th [1700, 22
Cal.Rptr.2d 590]. These decisions are diametrically opposite one to the other.
“This court is impressed with the logic, analysis and scholarship of Cleveland .... The Cleveland
Court carefully analyzed the legislative history of this novel reform to the law of intestate
succession and concluded that [section] 6454's [‘legal barrier’] requirement means what it
says and says what it means. The public policy reasons for the enactment of [section] 6454
are satisfied by the Cleveland Court's decision and it appears to this court that Stevenson... goes
well beyond the intent of the legislation in [its] conclusion.
“Factually, in this case [decedent], the last to die of the [spouses], could have pursued an
adult adoption had he really wanted to establish a parent/child relationship with [petitioner].
Additionally, he could have written a will leaving his property to [her] had he intended for
her to succeed to his property. (He clearly was aware of the benefits of the use of a will, as
he used the services of the [l]awyer who now represents [petitioner] to write a will many
years before his death.) We cannot know what [decedent's] intentions were regarding the
devolution of his estate, except as he expressed them as to his predeceased spouse when he
228

wrote his will. Although it is not an insignificant fact that he did not express any
testamentary intent toward [petitioner] as a successor beneficiary should, as actually
happened, his wife have predeceased him. Cleveland... envisioned just such a case as this when
it recognized that any number of reasons could exist for not wanting a ‘foster child’ to
succeed to one's property including loss of affection, disappointment, favoring relatives,
dissatisfaction with the choice of the ‘foster child's' spouse, to name but a few. In this case
[petitioner] obtained her majority age on October 15, 1974, some twenty one years before
[decedent's] death. Surely, that passage of time cannot be ignored.... [Decedent and his wife]
during their life had ample opportunity to control the outcome and for whatever [sic] reason
chose not to. To conclude that [decedent] wanted [petitioner] to inherit his property is
presumptuous and not consistent with the Legislature's reasons for enactment of § 6454.
“Therefore, it is the ruling of this court that the provisions of Probate Code [section] 6454
have not been satisfied by the relationship between [petitioner] and [decedent, and] that she
has [not] shown by clear and convincing evidence that [he] would have adopted [her] but for
a legal barrier.” (original italics.)
From the probate court's orders, petitioner appealed to the First Appellate District of the Court of
Appeal. She proceeded without a reporter's or clerk's transcript, electing to prepare an appendix in
lieu of the latter. She did so, as she would later explain, “[b]ecause the material facts,” as disclosed in
the probate court's statement of decision, “are undisputed.”
In an opinion certified for publication, Division Three of the First Appellate District, to which the
cause was assigned, unanimously affirmed the probate court's orders. All but expressly applying the
standard of independent review, and following Cleveland instead of Stevenson, it agreed with the
implied conclusion that Probate Code section 6454 requires that the legal barrier or barriers to
adoption of the foster child or stepchild by the foster parent or stepparent must have begun during
the foster child or stepchild's minority, and must have continued throughout the joint lifetimes of
the foster child or stepchild and the foster parent or stepparent. Impliedly using what appears to be
the substantial evidence test, it sustained the express finding that petitioner failed to establish by
clear and convincing evidence that decedent would have adopted her but for a legal barrier: Under
the provision, a legal barrier to adoption had to have continued until death; she admitted, however,
that such a barrier did not perdure.
At petitioner's request, we granted review. We now affirm.
II
In 1931, the Legislature enacted the original Probate Code. (Stats.1931, ch. 281.) It incorporated
therein the substance of provisions from the Civil Code, the Code of Civil Procedure, and two
uncodified statutes, and then repealed the provisions in question. (Evans v. Superior Court (1932) 215
Cal. 58, 61, 8 P.2d 467.)
In 1980, the Legislature directed the California Law Revision Commission (hereafter the Law
Revision Commission or simply the commission) to study, among other topics, “[w]hether the
California Probate Code should be revised, including but not limited to whether California should
adopt, in whole or in part, the Uniform Probate Code....” (Assem. Conc. Res. No. 107, Stats. 1980
(1979-1980 Reg. Sess.) res. ch. 37, p. 5086.)
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In the course of its study over the years that followed, the Law Revision Commission submitted
various recommendations to the Legislature to revise the original Probate Code in various ways,
some in line with the Uniform Probate Code, some not.
So far as the law of intestate succession was concerned, the Law Revision Commission had as its
purpose to “provide” new “rules,” framed in light of “changes in the American family and in public
attitudes,” “that are more likely” than the old ones “to carry out ... the intent a decedent without a
will is most likely to have had,” evidently at the time of death, and to do so in a “more efficient and
expeditious” manner. (Tent. Recommendation Relating to Wills and Intestate Succession
(Nov.1982) 16 Cal. Law Revision Com. Rep. (1982) pp. 2318, 2319.) From all that appears, the
Legislature had the same purpose. (Estate of Cleveland, supra, 17 Cal.App.4th at p. 1706, 22 Cal.Rptr.2d
590.)
In 1983, the Legislature added section 6408 to the Probate Code. (Stats.1983, ch. 842, § 55, pp.
3083-3084.)
Probate Code section 6408, subdivision (a)(2), provided: “The relationship of parent and child exists
between an adopted person and his or her adopting parent or parents. The relationship between a
person and his or her foster parent, and between a person and his or her stepparent, has the same
effect as if it were an adoptive relationship if (i) the relationship began during the person's minority
and continued throughout the parties' joint lifetimes and (ii) it is established by clear and convincing
evidence that the foster parent or stepparent would have adopted the person but for a legal barrier.”
(Stats.1983, ch. 842, § 55, p. 3083.) One such legal barrier exists “where ... a parent of the” “foster
child or stepchild” “refuses to consent to the adoption.” (Sen. Com. on Judiciary, Rep. on Assem.
Bills No. 25 & 68 (1983-1984 Reg. Sess.) 3 Sen. J. (1983-1984 Reg. Sess.) p. 4882 [hereafter Senate
Committee on Judiciary Report].)
Probate Code section 6408, subdivision (a)(2), was new to California law. (Senate Committee on
Judiciary Report, supra, 3 Sen. J. (1983-1984 Reg. Sess.) p. 4882; see Estate of Cleveland, supra, 17
Cal.App.4th at p. 1704, 22 Cal.Rptr.2d 590; Estate of Claffey (1989) 209 Cal.App.3d 254, 256, 257
Cal.Rptr. 197.) Moreover, it appears to have been, and to have remained, unique to this state among
American jurisdictions. (Meadow &Loeb, Heirs Unapparent (June 1994) L.A.Law. 34, 38; Note,
Intestate Succession for Stepchildren: California Leads the Way, but Has It Gone Far Enough? (1995) 47
Hastings L.J. 257, 260 [speaking only of stepparents and stepchildren]; Mahoney, Stepfamilies in the
Law of Intestate Succession and Wills (1989) 22 U.C. Davis L.Rev. 917, 929 [same]; see Estate of Cleveland,
supra, 17 Cal.App.4th at pp. 1704-1705, fn. 6, 22 Cal.Rptr.2d 590; see also 8 West's U. Laws Ann.
(1983) U. Prob.Code (1969) § 2-109, pp. 66-67 [making no provision for foster parents and foster
children or stepparents and stepchildren]; cf. id., § 1-201(3), p. 30 [excluding from the definition of a
“child,” in pertinent part, “any person who is only a stepchild ... [or] a foster child”]; id. (1997 supp.)
§ 1-201(5), p. 12 (1990 rev.) [same]; former Prob.Code, § 26, added by Stats.1983, ch. 842, § 21, p.
3026 [same]; id., as amended by Stats.1984, ch. 892, § 4, p. 2988 [deleting the exclusion]; but see Estate
of Claffey, supra, 209 Cal.App.3d at p. 256, 257 Cal.Rptr. 197 [stating, incorrectly, that this “innovative
portion” was “adapted from the Uniform Probate Code”].)
Probate Code section 6408, subdivision (a)(2), was proposed to the Legislature by the Law Revision
Commission. It was not submitted as a recommendation originally. (Tent. Recommendation
Relating to Wills and Intestate Succession, supra, 16 Cal. Law Revision Com. Rep. (1982) at pp. 2459230

2460; see id. at p. 2460 [Cal. Law Revision Com. com. on Prob.Code, § 6408: “[a] person who is only
a stepchild [or a] foster child ... is not a ‘child[,]’ ” and “[a] person who is only a stepparent [or a]
foster parent ... is not a ‘parent[ ]’ ”]; see generally Estate of Claffey, supra, 209 Cal.App.3d at p. 258,
257 Cal.Rptr. 197; Estate of Cleveland, supra, 17 Cal.App.4th at p. 1705, 22 Cal.Rptr.2d 590 [following
Claffey ].) It came later. (Estate of Claffey, supra, 209 Cal.App.3d at p. 258, 257 Cal.Rptr. 197; Estate of
Cleveland, supra, 17 Cal.App.4th at p. 1705, 22 Cal.Rptr.2d 590 [following Claffey].) It evidently found
its source in the notes of one of the commission's expert consultants, who drafted language that was
virtually identical to what would subsequently be enacted, in order “to provide for step- and foster
children in very limited situations, with the necessary safeguards incorporated by treating the case
like an adoption, for which qualifications, exceptions, etc. are elsewhere worked out.”
In 1984, the Legislature redesignated the pertinent part of Probate Code section 6408, subdivision
(a)(2), quoted above, as subdivision (a)(3), with virtually no change in language and absolutely no
change in substance. (Stats.1984, ch. 892, § 41.5, p. 3000.)
In 1985, the Legislature redesignated Probate Code section 6408, subdivision (a)(3), as subdivision
(b), with some change in language, to cause the provision to stand alone without reference to the
one dealing with the adoptive relationship, but with no change in substance. (Stats.1985, ch. 982, §
21, p. 3118.)
In 1990, the Legislature repealed the original Probate Code, as amended (Stats.1990, ch. 79, § 13, p.
463), and enacted a new one (Stats.1990, ch. 79, § 14, p. 463 et seq.), which remains in effect today.
In so doing, it repealed former Probate Code section 6408, subdivision (b) (Stats.1990, ch. 79, § 13,
p. 463), and enacted a new Probate Code section 6408, subdivision (e), which was identical thereto
(Stats.1990, ch. 79, § 14, p. 722). (See Recommendation Proposing New Probate Code (Dec.1989)
20 Cal. Law Revision Com. Rep. (1990) pp. 1468-1471.)
In 1993, the Legislature repealed Probate Code section 6408, including subdivision (e) (Stats.1993,
ch. 529, § 4), and added section 6454 (Stats.1993, ch. 529, § 5), which continues its substance in its
present form (Annual Rep. for 1993 (1993) 23 Cal. Law Revision Com. Rep. (1993) p. 1006): “[T]he
relationship of parent and child exists between [a] person and the person's foster parent or
stepparent if”“(a) [t]he relationship began during the person's minority and continued throughout
the joint lifetimes of the person and the person's foster parent or stepparent,” and “(b) [i]t is
established by clear and convincing evidence that the foster parent or stepparent would have
adopted the person but for a legal barrier.” (Stats.1993, ch. 529, § 5.)
After review, we believe-like the Cleveland court and unlike the Stevenson court-that Probate Code
section 6454 should be read to require that the legal barrier or barriers to adoption of the foster
child or stepchild by the foster parent or stepparent must have begun during the foster child or
stepchild's minority, and must have continued throughout the joint lifetimes of the foster child or
stepchild and the foster parent or stepparent, and that the provision should not be read to allow
such barrier or barriers to have existed only at a time at which adoption was contemplated or
attempted.
Our reading of Probate Code section 6454 is consistent with the words that it uses. It is easy to
conclude that the provision's “legal barrier” requirement mandates that a legal barrier to adoption
must have continued until death and also mandates, by implication, that an intent to adopt must
have continued as well. If a legal barrier to adoption did not continue, it could not continue to be the
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necessary cause of the failure to adopt: It could not operate when it was not effective. If a legal
barrier to adoption did not continue together with an intent to adopt, it did not continue to be the
necessary cause of the failure to adopt: It may not be said to have prevented what was not even
undertaken. By contrast, it is hard to conclude that the provision's “legal barrier” requirement allows
a legal barrier to adoption to have existed only at a time at which adoption was contemplated or
attempted. If a barrier of this sort existed only at some such moment, perhaps ephemerally in the far
distant past, it was not a necessary cause of the failure to adopt at any of the others. The “legal
barrier” requirement is, “but for a legal barrier” to adoption, “the foster parent or stepparent would
have adopted” the foster child or stepchild. (Prob.Code, § 6454, subd. (b).) It is not, “but for a legal
barrier” to adoption at a time at which adoption was contemplated or attempted, “the foster parent or
stepparent would have adopted” the foster child or stepchild at that time.
Our reading of Probate Code section 6454 also suits the purpose that underlies the code generally,
that is, to pass the estate of an intestate decedent in accordance with the “intent” that he “is most
likely to have had” at the time of death, and to do so in an “efficient and expeditious” manner.
(Tent. Recommendation Relating to Wills and Intestate Succession, supra, 16 Cal. Law Revision
Com. Rep. (1982) at p. 2319.)
Specifically, our reading of Probate Code section 6454 serves the passing of the estate of an intestate
foster parent or stepparent in accordance with his likely intent at the time of death. It is easy to
conclude that, had he made a will, the foster parent or stepparent would have desired to dispose of
at least some of his property to his foster child or stepchild if a legal barrier to adoption had
continued until death together with an intent to adopt. In such a case, the failure to adopt would not
imply the nonexistence of a parent-child relationship: It would be coterminous with the inability to
adopt because of law. There would then be a kind of parent-child relationship that would be
tantamount to that of adoption: Not only would a legal barrier to adoption have continued until
death, an intent to adopt would have continued as well. By contrast, it is hard to conclude that, had
he made a will, the foster parent or stepparent would have desired to dispose of any of his property
to his foster child or stepchild if a legal barrier to adoption had existed only at a time at which
adoption was contemplated or attempted. In such a case, the failure to adopt at some such moment
would not imply the existence of a parent-child relationship at any of the others: It would not be
preceded or succeeded by the inability to adopt because of law. When that moment was years or
even decades before death, it would signify that what might once have approached a parent-child
relationship, to quote the Cleveland court, might well have suffered a “change in [its] nature or
quality” in the interim. (Estate of Cleveland, supra, 17 Cal.App.4th at p. 1710, 22 Cal.Rptr.2d 590.) True,
at death, the foster child or stepchild might been have a friend to the foster parent or stepparent.
But a friend, as such, is not an heir. The result of all this may indeed be that a parent-child
relationship will be deemed to exist only in exceptional circumstances. That, however, does not
seem to be against the provision's design, but rather in conformity therewith.
Our reading of Probate Code section 6454 also serves the passing of the estate of an intestate foster
parent or stepparent efficiently and expeditiously. To quote the Cleveland court again, it “injects a
strong dose of certainty into” such matters. (Estate of Cleveland, supra, 17 Cal.App.4th at p. 1712, 22
Cal.Rptr.2d 590.) The provision's mandate that a legal barrier to adoption must have continued until
death, together with an intent to adopt, eliminates, or at least reduces, marginal claims, whether
genuine or sham, based on little more than an assertion that such a barrier existed only at a time at
which adoption was contemplated or attempted. Otherwise, as the Cleveland court explained, there
might be “claims by a stepchild or foster child if at any time during his minority the stepparent [or
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foster parent] expressed a desire to adopt but was denied the consent of the natural parent. Any
such child could claim an intestate share of the decedent's estate at his death-no matter how many
years elapsed after the removal of the legal impediment. Operating from the stalest sort of evidence,
the probate court must then determine whether, ‘but for’ that legal impediment the decedent would
have adopted the [child] during his minority and must negate the existence of other reasons for
decedent's abandonment of the adoption. In such cases, of course, the decedent is unavailable to
rebut these claims asserted by persons with a direct financial interest. Often, the only corroborating
testimony is from the nonconsenting [natural] parent who may also be financially interested in the
outcome. Typically, there will be no other disinterested third parties to verify the decedent's intent,
since the subject matter is commonly considered to be of a highly personal and private nature.” (Id.
at pp. 1710-1711, 22 Cal.Rptr.2d 590, fn. omitted.)
In adopting a reading of what would become Probate Code section 6454 that is different from ours,
the Stevenson court gave three reasons. Let us consider each in turn.
The Stevenson court's first reason against a reading of Probate Code section 6454 like ours is that the
foster parent and foster child or the stepparent and stepchild “may decide that” adoption “is not so
important” “once” the foster child or stepchild “reaches adulthood.” (Estate of Stevenson, supra, 11
Cal.App.4th at p. 866, 14 Cal.Rptr.2d 250.) Whether or not adoption is “important” simply has no
bearing on what the provision itself requires. In any event, that adoption may not be “so important,”
as the Cleveland court explained, does not mean that it is not important at all: “Adoption implicates
estate tax planning (e.g., credits or exemptions for property passed to ‘family member’); construction
of insurance policies (e.g., ‘family member’ exclusion); right to recover for wrongful death; right to
sue or be sued for negligence; dependency matters ...; and custody/visitation issues (as with
‘grandchildren’ of the stepparent or foster parent).” (Estate of Cleveland, supra, 17 Cal.App.4th at p.
1712, 22 Cal.Rptr.2d 590.) Moreover, that adoption may not be “so important,” as the Cleveland court
also explained, “would weigh against the conclusion that” the foster parent or stepparent
“considered” the foster child or stepchild “to be one of his ... ‘children.’ ” (Id. at p. 1710, 22
Cal.Rptr.2d 590.)
The Stevenson court's second reason against a reading of Probate Code section 6454 like ours is that it
would cut off “adult” foster children or stepchildren. (Estate of Stevenson, supra, 11 Cal.App.4th at p.
866, 14 Cal.Rptr.2d 250.) Its premises are that the provision's benefits are not limited to minors, and
that legal barriers to the adoption of adults do not exist. That is not the case. Like the Cleveland court,
we accept the former premise. There is no indication that the provision's benefits are limited to
minors. (See Estate of Cleveland, supra, 17 Cal.App.4th at p. 1711, 22 Cal.Rptr.2d 590.) But also like the
Cleveland court, we reject the latter premise. Legal barriers to the adoption of adults do indeed exist
(see Fam.Code, §§ 9301, 9302, 9303, 9328)-and have existed since before the time of the original
enactment of what would become the provision (see Civ.Code, former § 227p, as amended by
Stats.1981, ch. 734, § 1, pp. 2888-2889). They include “failure to consent by the adopting person's
spouse, the adoptee's spouse, or the adoptee,” the limitation of “only one adult adoption of
unrelated persons per year,” and the requirement that an “adult adoption [ ] must be ‘[in] the best
interests of the [persons seeking the adoption] and in the public interest....’ ” (Estate of Cleveland,
supra, 17 Cal.App.4th at p. 1708, fn. 10, 22 Cal.Rptr.2d 590.)
The Stevenson court's third reason against a reading of Probate Code section 6454 like ours is that the
provision's “continuing relationship” requirement “suggests” that the provision “was meant to apply
even after” the foster child or stepchild “reached adulthood.” (Estate of Stevenson, supra, 11
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Cal.App.4th at p. 866, 14 Cal.Rptr.2d 250.) Any such suggestion, however, does not itself suggest
that the provision was not meant to apply thereafter insofar as its “legal barrier” requirement is
concerned.
In reading Probate Code section 6454 as we do, we do not overlook a recommendation by the Law
Revision Commission, dated October 1997, relating to the provision.
In order to resolve the conflict between Stevenson and Cleveland in favor of Stevenson, the Law Revision
Commission has proposed to the Legislature to amend Probate Code section 6454 to provide, in
substance, that the legal barrier to adoption need only exist at a time at which adoption was
contemplated or attempted. (Recommendation: Inheritance by Foster Child or Stepchild (Oct.1997)
27 Cal. Law Revision Com. Rep. (1997) p. x6 [preprint copy].) The commission asserts that such an
amendment “should not lead to an increase of manufactured claims because of the requirements
that the parent-child relationship must continue throughout their joint lifetimes, and that evidence
of intent to adopt must be clear and convincing.” (Id. at p. x7 [same].) With this point, for
argument's sake only, we shall agree. The commission also asserts that a reading of the provision like
ours would assertedly “preclude inheritance by virtually all adults from ... a foster parent or
stepparent,” and would thereby “frustrate the underlying purpose of the” provision “to carry out the
likely intent of the intestate decedent.” (Id. at p. x6 [same].) With this point, we cannot agree. To be
sure, we give “substantial weight” to the commission's understanding of a provision it proposed, like
the present one. (Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 249, 66 Cal.Rptr. 20, 437 P.2d 508.)
But, as we have explained, the provision seems to have been designed to apply only in exceptional
circumstances. Moreover, it is hard to conclude that, had he made a will, a foster parent or
stepparent would have desired to dispose of any of his property to his foster child or stepchild if a
legal barrier to adoption had existed only at a time, perhaps years or even decades before his death,
at which adoption was contemplated or attempted, inasmuch as what might then have approached a
parent-child relationship could well have suffered a “change in [its] nature or quality” in the interim.
(Estate of Cleveland, supra, 17 Cal.App.4th at p. 1710, 22 Cal.Rptr.2d 590.)
Whether the Legislature chooses to amend Probate Code section 6454 along the lines of the Law
Revision Commission's recommendation is, without question, a matter that belongs solely to that
body. We do not pass on the wisdom of the provision as it may exist sometime in the future. We
simply read it as it stands now.
III
Turning now to the case at bar-in which, as petitioner represents, the “material facts,” as disclosed in
the probate court's statement of decision, “are undisputed”-we believe that the Court of Appeal was
sound in its reasoning and correct in its result when it affirmed the probate court's orders that
determined that petitioner was not decedent's daughter or heir and, hence, was not entitled to
distribution of his estate in any part, and that revoked her letters of administration of decedent's
estate and removed her from office.
The Court of Appeal was right as to the probate court's implied conclusion that Probate Code
section 6454 requires that the legal barrier or barriers to adoption of the foster child or stepchild by
the foster parent or stepparent must have begun during the foster child or stepchild's minority, and
must have continued throughout the joint lifetimes of the foster child or stepchild and the foster
parent or stepparent. Such a conclusion is reviewed independently: It resolves a pure question of
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law, viz., the meaning of the provision in question. (E.g., 20th Century Ins. Co. v. Garamendi (1994) 8
Cal.4th 216, 271, 32 Cal.Rptr.2d 807, 878 P.2d 566.) It survives scrutiny. The analysis set out above
establishes the point. Petitioner argues to the contrary. At bottom, she relies on Stevenson. But
Stevenson has been found wanting. She also relies on the comment, quoted above, that one of the
legal barriers to adoption exists “where ... a parent of the” “foster child or stepchild” “refuses to
consent to the adoption.” (Senate Committee on Judiciary Report, supra, Sen. J. (1983-1984 Reg.
Sess.) p. 4882.) But that comment deals only with what such a barrier is, and not when it has to exist
or how long it has to continue. In addition, she asserts that, in order to give the provision's
“continuing relationship” and “legal barrier” requirements independent meaning, we should
understand the former to be temporal but not causal and the latter to be causal but not temporal.
We cannot do so. What is temporal need not be causal. But what is causal must be temporal: A
cause exists only when it operates; it operates only when it is effective; it is effective only when it fills
at least one moment in time. Even though we cannot understand the provision's requirements as
urged, we can nevertheless give them independent meaning: The former assures that a relationship
between the foster parent or stepparent and the foster child or stepchild lasted until death, and the
latter assures that that relationship was tantamount to that of adoption.
The Court of Appeal was also right as to the probate court's express finding that petitioner failed to
establish by clear and convincing evidence that decedent would have adopted her but for a legal
barrier. Such a finding is reviewed for substantial evidence: It resolves a mixed question of law and
fact that is nonetheless predominantly one of fact, inasmuch as it “requires application of experience
with human affairs....” (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881,
888, 264 Cal.Rptr. 139, 782 P.2d 278.) It survives scrutiny. Petitioner does not argue to the contrary.
Under Probate Code section 6454, a legal barrier to adoption must have continued until death. But
she admitted below that such a barrier did not perdure. She makes the same admission here.
Lastly, we observe that, to the extent that the purpose of Probate Code section 6454 is to pass the
estate of an intestate decedent in accordance with the “intent” that he “is most likely to have had” at
the time of death, and to do so in an “efficient and expeditious” manner (Tent. Recommendation
Relating to Wills and Intestate Succession, supra, 16 Cal. Law Revision Com. Rep., supra, at p. 2319),
it appears to be satisfied in this case. As the probate court stated, “it is not an insignificant fact that,”
in his old will, decedent “did not express any testamentary intent toward” petitioner “as a successor
beneficiary should, as actually happened, his wife have predeceased him.” This fact, of course, is not
proof. But it is all there is. And it is not challenged.
IV
For the reasons stated above, we conclude that we must affirm the judgment of the Court of
Appeal.
It is so ordered.
CHIN, Associate Justice, dissenting.
In this case, we must apply Probate Code section 6454, which provides in relevant part: “For the
purpose of determining intestate succession by a person ... from or through a foster parent or
stepparent, the relationship of parent and child exists between that person and the person's foster
parent or stepparent if both of the following requirements are satisfied: (a) The relationship began
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during the person's minority and continued throughout the joint lifetimes of the person and the
person's foster parent or stepparent. (b) It is established by clear and convincing evidence that the
foster parent or stepparent would have adopted the person but for a legal barrier.”
The Courts of Appeal have disagreed as to the necessary duration of the “legal barrier” that the
statute references. (§ 6454, subd. (b).) Construing section 6454's predecessor, the Sixth District held
that the legal barrier had to exist only when adoption was attempted or contemplated. (Estate of
Stevenson (1992) 11 Cal.App.4th 852, 865-866, 14 Cal.Rptr.2d 250 (Stevenson).) Construing the same
statute, Division Five of the Second District expressly rejected Stevenson and held that the legal
barrier must have existed throughout the lives of the child and the foster parent or stepparent.
(Estate of Cleveland (1993) 17 Cal.App.4th 1700, 1709-1713, 22 Cal.Rptr.2d 590 (Cleveland ).)
Essentially agreeing with Cleveland, the majority rewrites the statute so as to render it virtually
inapplicable to adult foster children or stepchildren, who seldom (if ever) could demonstrate a
lifetime legal barrier to adoption. This narrow construction is neither compelled by the words of the
statute nor necessary to effectuate the Legislature's intent. On the contrary, Stevenson's interpretation,
which has the express endorsement of the commission that drafted the statute for the Legislature, is
both more logical and more consistent with the available indicia of legislative intent. Moreover, the
advantages that the majority claims for its construction are largely illusory. Accordingly, I cannot
join in the majority's restrictive revision of section 6454.
Notes and Questions
1. What are the pros and cons of permitting stepchildren and foster children to inherit from
stepparents and foster parents?
2. Should the Probate Court consider the relationship between the stepparent/foster parent and the
stepchild/foster child? Should these children have to be adopted in order to obtain the right to
inherit?
3. What, if any, restrictions should be place on the right of stepchildren/foster children to inherit
under the intestacy system?

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Chapter Six: Intestacy (Children of Assisted Reproductive Technology)
6.1

Introduction

The availability of assisted reproductive technology has changed the way families are being
formed. It is now possible for a child to have at least six legal parents. Consider the following
scenario. A and B would like to have a child, but they are both infertile. A and B purchase eggs from
C and sperm from D. Then, they hire a surrogate E, a married woman, to gestate their embryos. A
and B are the intended parents, so they are the legal parents. C and D are the biological parents. In
some jurisdictions, as a gestational surrogate, E, is the legal parent. Since the child is conceived
during the course of the marriage, E’s husband may be presumed to be the legal father. The law has
not kept paced with the changes that assisted reproductive technology has made to the
determination of paternity and maternity.
In this chapter, we look at the inheritance rights of three classes of children that have
resulted from the use of assisted reproductive technology. The first section examines the rights of
child conceived using the sperm of dead men. These children are referred to as posthumously
conceived children. In this section, we will focus upon the child’s ability to inherit from his dead
father because that has been the subject of most of the litigation. Since it is more difficult to retrieve
eggs from a dead woman, there are no reported cases involving children conceived using the eggs of
a dead women.38 In addition, cases involving the eggs of a dead woman would implicate surrogacy
laws, so the maternity issues that arise are discussed in the section of this chapter that deals with
surrogacy.
The second section of this chapter looks at the ability of children conceived using artificial
insemination to inherit from their fathers. Numerous types of reproductive technology are available
to help infertile couples achieve their dreams of having children. One of the oldest and most
common forms of assisted reproduction is artificial insemination. Couples widely use artificial
insemination because it is the simplest form of assisted reproduction. The popularity of artificial
insemination may also be attributed to the fact that it is affordable and can be safely done without
the benefit of medical personnel. Artificial insemination involves sperm being placed into a woman’s
cervix without sexual intercourse. Thus, the procedure can be done at home using a turkey baster.
The widespread use of artificial insemination may be the reason why most state legislatures that have
enacted statutes dealing with assisted reproduction have focused exclusively on artificial
insemination.
The final section of this chapter explores the inheritance rights of children who are born as
the result of surrogacy agreements. There are two types of surrogacy—traditional and gestational. In
a traditional surrogacy arrangement, in essence, the person is purchasing both the eggs and the
services of the surrogate. The person who wishes to become a parent supplies the sperm and the
surrogate does the rest. After the Baby M case, traditional surrogacy fell into disfavor.39 The

38 In 2012, an Israeli court gave the parents of a seventeen year old girl who was killed in a car accident the right to

harvest her eggs. The parent planned to donate the eggs to the girl’s infertile aunt.
39 In Baby M, the court held that surrogacy was against public policy. When the surrogate refused to surrender the child,
the court treated the matter like a custody dispute instead of a breach of contract case. The intended mother was not

237

jurisdictions that permit and regulate surrogacy have limited it to gestational surrogacy. Under a
gestational surrogacy arrangement, the surrogate provides only the womb. The maternity dispute in
those cases is between the intended mother and the surrogate.
6.2

Posthumously Conceived Children

Heirship is determined at the person’s death. The person’s death is when intestate property
passes by intestacy to the deceased’s heirs. Before the person dies, a potential heir has no property
interest but merely an “expectancy” in the dead person’s intestate estate. The cases discussed in this
section involve the right of posthumously conceived children to inherit from their fathers. The
resolution of this issue is important because the existence of posthumously conceived children has
the potential to impact the distribution of a man’s estate. If the man dies with a validly executed will
leaving his estate to his children, the question becomes whether or not posthumously conceived
children should be included in the definition of “children”. In the event that a man dies without a
will, the question to be resolved is whether or not posthumously conceived children should be
considered heirs under the intestacy system. The legal issues relevant to the discussion are: (1)
Whether the posthumously conceived child should be recognized as a survivor of his or her father
under the state’s intestacy system and (2) Whether the posthumously conceived child should be
given the right to inherit through his or her father.
The issue of posthumous reproduction inheritance rights usually arises in two contexts.
Context One: Facing a life threatening illness or situation, a man has his sperm stored for future use.
After the man becomes sterile, dies or is killed, the woman uses his sperm to conceive his child.
Context Two: A man dies or is killed without storing his sperm. Then, the woman has his sperm
harvested from his body and uses it to conceive his child.40 The result of either context is a child
born years after the death of his or her father. Both scenarios mentioned above lead to the following
two questions: (1) Whether the resulting child should have the opportunity to inherit from his or her
father, and (2) Whether any conditions should be placed on the child’s right to inherit from his or
her father.
When reading the materials in this chapter, you should think about the interests to be
protected. In deciding whether or not to give posthumously conceived children the right to inherit,
the state must strive to protect: (1) the reproductive right of the deceased man; (2) the financial
interests of the posthumously conceived child; (3) the financial interests of the deceased man’s
existing heirs; and (4) the integrity of the probate system.

given standing in the case. The court awarded custody of the case to the man who supplied the sperm after deciding that
he would make the better parent.
40 In 1997, Art Caplan, the Director for Bioethics at the University of Pennsylvania, and several colleagues conducted a
study of fertility clinics to find out the number of clinics that had extracted sperm from a deceased man. The results of
the study indicated that the practice of taking sperm from dead men has become more common. Gina Kolata, Uncertain
Area for Doctors: Saving Sperm of Dead Men, The New York Times, www. nytimes.com (May 30, 1997). Media
coverage like this one led to attempts by the government to regulate the process. For example, Roy Goodman, a
Republican New York state senator, introduced a bill that would have regulated the extraction and preservation of the
sperm of dead men. Under the bill’s mandates, doctors could only remove sperm from dead men who had given written
permission for the extraction prior to death. The bill was never enacted into law. See Ian Fisher, Bill Would Govern Use
of Dead Men’s Sperm, nytimes.com (March 7, 1998).

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6.2.1

The Right to Inherit From Fathers

Persons involved in these cases usually have modest means and are not interested in
inheriting from the dead men’s estates. Litigation occurs when the women apply for and are denied
Social Security Survivors’ benefits. The Social Security Act does not include provisions dealing with
posthumously conceived children, so, when determining a child’s eligibility for benefits, the Agency
relies upon the intestacy laws of the state where the man dies. If the child is not considered to be the
man’s heir under the intestacy system, he or she is not eligible for benefits under the Social Security
Act.

Astrue v. Capato ex. Rel. B.N.C., 132 S. Ct. 2021 (2012)
GINSBURG, J., delivered the opinion for a unanimous Court.
Eighteen months after her husband, Robert Capato, died of cancer, respondent Karen Capato gave
birth to twins conceived through in vitro fertilization using her husband’s frozen sperm. Karen
applied for Social Security Survivors benefits for the twins. The Social Security Administration (SSA)
denied her application, and the District Court affirmed. In accord with the SSA’s construction of the
Social Security Act (Act), the court determined that the twins would qualify for benefits only if, as 42
U.S.C. §416(h)(2)(A) specifies, they could inherit from the deceased wage earner under state
intestacy law. The court then found that Robert was domiciled in Florida at his death, and that
under Florida law, posthumously conceived children do not qualify for inheritance through intestate
succession. The Third Circuit reversed. It concluded that, under. §416(e), which defines child to
mean, inter alia, “the child or legally adopted child of an [insured] individual,” the undisputed
biological children of an insured and his widow qualify for survivors benefits without regard to state
intestacy law.
Held: The SSA’s reading is better attuned to the statute’s text and its design to benefit primarily those
supported by the deceased wage earner in his or her lifetime. Moreover, even if the SSA’s
longstanding interpretation is not the only reasonable one, it is at least a permissible construction
entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
104 S.Ct. 2778, 81 L.Ed.2d 694. Pp. 2027 – 2034.
(a) Congress amended the Act in 1939 to provide that, as relevant here, “[e]very child (as defined in
section 416(e) of this title)” of a deceased insured individual “shall be entitled to a child’s insurance
benefit.” §412(d). Section 416(e), in turn, defines “child” to mean: “(1) the child or legally adopted
child of an individual, (2) a stepchild [under certain circumstances], and (3) ... the grandchild or step
grandchild of an individual or his spouse [under certain conditions].” Unlike § 416(e)(2) and (3), §
416(e)(1) lacks any elaboration of the conditions under which a child qualifies for benefits. Section
416(h)(2)(A), however, further addresses the term “child,” providing: “In determining whether an
applicant is the child or parent of [an] insured individual for purposes of this subchapter, the
Commissioner of Social Security shall apply [the intestacy law of the insured individual’s domiciliary
State].” An applicant who does not meet § 416(h)(2)(A)’s intestacy-law criterion may nonetheless
qualify for benefits under other criteria set forth in §416(h)(2)(B) and (h)(3), but respondent does
not claim eligibility under those other criteria. Regulations promulgated by the SSA closely track. §
416(h)(2) and (3) in defining “[w]ho is the insured’s natural child,” 20 CFR § 404.355. 42 U.S.C. §
416(e) As the SSA reads the statute, 42 U.S.C. § 416(h) governs the meaning of “child” in § 416(e)(1)
239

and serves as a gateway through which all applicants for insurance benefits as a “child” must pass.
Pp. 2027 – 2029. 841757941
(b) While the SSA regards §416(h) as completing §416(e)’s sparse definition of “child,” the Third
Circuit held, and respondent contends, that §416(e) alone governs whenever the claimant is a
married couple’s biological child. There are conspicuous flaws in the Third Circuit’s and
respondent’s reading; the SSA offers the more persuasive interpretation. Pp. 2028 – 2033.
(1) Nothing in §416(e)’s tautological definition suggests that Congress understood the word “child”
to refer only to the children of married parents. The dictionary definitions offered by respondent are
not so confined. Moreover, elsewhere in the Act, Congress expressly limited the category of children
covered to offspring of a marital union, see §402 (d)(3)(A), and contemporaneous statutes similarly
distinguish child of a marriage from the unmodified term “child.” Nor does §416(e) indicate that
Congress intended “biological” parentage to be prerequisite to “child” status. A biological parent is
not always a child’s parent under law. Furthermore, marriage does not necessarily make a child’s
parentage certain, nor does the absence of marriage necessarily make a child’s parentage uncertain.
Finally, it is far from obvious that respondent’s proposed definition would cover her posthumously
conceived twins, for under Florida law a marriage ends upon the death of a spouse. Pp. 2029 – 2031.
(2) The SSA finds a key textual cue in § 416(h)(2)(A)’s opening instruction: “In determining whether
an applicant is the child ... of [an] insured individual for purposes of this subchapter,” the
Commissioner shall apply state intestacy law. Respondent notes the absence of any cross-reference
in § 416(e) to § 416(h), but she overlooks that § 416(h) provides the crucial link: It requires reference
to state intestacy law to determine child status not just for § 416(h) purposes, but “for purposes of
this subchapter,” which includes both §§ 402(d) and 416(e). Having explicitly complemented §
416(e) by the definitional provisions contained in § 416(h), Congress had no need to place a
redundant cross-reference in § 416(e).
The Act commonly refers to state law on matters of family status, including an applicant’s status as a
wife, widow, husband, or widower. See, e.g., § 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,
and time limits qualify the statutes of several States that accord inheritance rights to posthumously
conceived children. In contrast, no time constraint attends the Third Circuit’s ruling in this case,
under which the biological child of married parents is eligible for survivors benefits, no matter the
length of time between the father’s death and the child’s conception and birth.
Because a child who may take from a father’s estate is more likely to “be dependent during the
parent’s life and at his death,” Matthews v. Lucas, 427 I.S. 495, 514 96 S.Ct. 2755, 49 L.Ed.2d 651,
reliance on state intestacy law to determine who is a “child” serves the Act’s driving objective, which
is to “provide ... dependent members of [a wage earner’s] family with protection against the hardship
occasioned by [the] loss of [the insured’s] earnings,” Califano v. Jobst, 434 U.S. 47, 52, 98 S.Ct. 95, 54
L.Ed.2d 228. Although the Act and regulations set different eligibility requirements for adopted
children, stepchildren, grandchildren, and step grandchildren, it hardly follows, as respondent argues,
that applicants in those categories are treated more advantageously than are children who must meet
a §416(h) criterion. Respondent charges that the SSA’s construction of the Act raises serious
constitutional concerns under the equal protection component of the Due Process Clause. But
under rational-basis review, the appropriate standard here, the regime passed by Congress easily
passes inspection. Pp. 2030 – 2033.
240

(c) Because the SSA’s interpretation of the relevant provisions, is at least reasonable, the agency’s
reading is entitled to this Court’s deference under Chevron, 467 U.S. 837, 104 104 S.Ct. 2778, 81
L.Ed.2d 694. Chevron deference is appropriate “when it appears that Congress delegated authority to
the agency generally to make rules carrying the force of law, and that the agency interpretation
claiming deference was promulgated in the exercise of that authority.” United States v. Mead Corp., 533
U.S. 218, 226-227, 121 S.Ct. 2164, 150 L.Ed.2d 292. Here, the SSA’s longstanding interpretation, set
forth in regulations published after notice-and-comment rulemaking, is neither “arbitrary or
capricious in substance, [n]or manifestly contrary to the statute.” Mayo Foundation for Medical Ed. and
Research v. United States, 562 U.S.-----, ------, 131 S.Ct. 704, 711, 178 L.Ed.2d 588. It therefore
warrants the Court’s approbation. Pp. 2033 – 2034.
631 F.2d 626, reversed and remanded.

Woodward41 v. Commissioner of Social Sec., 760 N.E.2d 257 (Mass. 2002)
MARSHALL, C.J.
The United States District Court for the District of Massachusetts has certified the following
question to this court. See S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981).
“If a married man and woman arrange for sperm to be withdrawn from the husband for the purpose
of artificially impregnating the wife, and the woman is impregnated with that sperm after the man,
her husband, has died, will children resulting from such pregnancy enjoy the inheritance rights of
natural children under Massachusetts' law of intestate succession?”
We answer the certified question as follows: In certain limited circumstances, a child42 resulting from
posthumous reproduction may enjoy the inheritance rights of “issue” under the Massachusetts
intestacy statute. These limited circumstances exist where, as a threshold matter, the surviving parent
or the child's other legal representative demonstrates a genetic relationship between the child and
the decedent. The survivor or representative must then establish both that the decedent affirmatively
consented to posthumous conception and to the support of any resulting child. Even where such
circumstances exist, time limitations may preclude commencing a claim for succession rights on
behalf of a posthumously conceived child. Because the government has conceded that the timeliness
of the wife's paternity action under our intestacy law is irrelevant to her Federal appeal, we do not
address that question today.
The United States District Court judge has not asked us to determine whether the circumstances
giving rise to succession rights for posthumously conceived children apply here. In addition, she has
41 Lauren Woodward (wife), on her own behalf as parent and guardian and on behalf of her minor children, and as

administratrix of the estate of Warren Woodward (husband).
42 The term “natural child” (or “natural children”) does not occur in any applicable Massachusetts statute. It is a term
drawn from Federal legislation. See, e.g., 42 U.S.C. § 416(e) (1994) and 20 C.F.R. § 404.355 (2001) (defining the term
“natural child”). Our inquiry is directed solely to the language of the applicable Massachusetts statutes.

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removed from our consideration the question whether the paternity judgment obtained by the wife
in this case was valid. See note 6, infra. We answer only the certified question. See Canal Elec. Co. v.
Westinghouse Elec. Corp., 406 Mass. 369, 370 n. 1, 548 N.E.2d 182 (1990); Cabot Corp. v. Baddour, 394
Mass. 720, 721, 477 N.E.2d 399 (1985).
I
The undisputed facts and relevant procedural history are as follows. In January, 1993, about three
and one-half years after they were married, Lauren Woodward and Warren Woodward were
informed that the husband had leukemia. At the time, the couple was childless. Advised that the
husband's leukemia treatment might leave him sterile, the Woodwards arranged for a quantity of the
husband's semen to be medically withdrawn and preserved, in a process commonly known as
“sperm banking.” The husband then underwent a bone marrow transplant. The treatment was not
successful. The husband died in October, 1993, and the wife was appointed administratrix of his
estate.
In October, 1995, the wife gave birth to twin girls. The children were conceived through artificial
insemination using the husband's preserved semen. In January, 1996, the wife applied for two forms
of Social Security survivor benefits: “child's” benefits under 42 U.S.C. § 402(d)(1) (1994 & Supp. V
1999), and “mother's” benefits under 42 U.S.C. § 402(g)(1) (1994).43
The Social Security Administration (SSA) rejected the wife's claims on the ground that she had not
established that the twins were the husband's “children” within the meaning of the Act.44 In
February, 1996, as she pursued a series of appeals from the SSA decision, the wife filed a “complaint
for correction of birth record” in the Probate and Family Court against the clerk of the city of
Beverly, seeking to add her deceased husband as the “father” on the twins' birth certificates. In
October, 1996, a judge in the Probate and Family Court entered a judgment of paternity and an
order to amend both birth certificates declaring the deceased husband to be the children's father. In
his judgment of paternity, the Probate Court judge did not make findings of fact, other than to state
that he “accepts the [s]tipulations of [v]oluntary [a]cknowledgment of [p]arentage of [the children] ...
executed by [the wife] as [m]other, and [the wife], [a]dministratrix of the [e]state of [the husband],
for father.” See G.L. c. 209C, § 11.45

43 At the time of his death, the husband was a fully insured individual under the United States Social Security Act

(Act). Section 402(d)(1) of 42 U.S.C. provides “child's” benefits to dependent children of deceased parents who die
fully insured under the Act. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. Section 402(g)(1) of 42 U.S.C. provides
“mother's” benefits to the widow of an individual who died fully insured under the Act, if, inter alia, she has care of a
child or children entitled to child's benefits. See 42 U.S.C. § 402(g)(1); 20 C.F.R. § 404.339 (2001). Thus, the wife's
eligibility for Social Security survivor benefits hinges on her children's eligibility for such benefits.
44 The Act defines children, in pertinent part, as the “child or legally adopted child of an individual.” See 42 U.S.C. §
416(e). The term “child” includes “natural child.” See 20 C.F.R. § 404.355. The Act also establishes presumptions of
dependency for certain classes of children, as well as other mechanisms for establishing dependency. As stated in the
certification order, the wife's “appeal centers on only one possible basis for eligibility, which is that under SSA
regulations the children are eligible if they would be treated as [the husband's] natural children for the disposition of his
personal property under the Massachusetts law of intestate succession. See 42 U.S.C. §§ 402(d)(3) and 416(h)(2)(A); 20
C.F.R. § 404.355(a)(1); 20 C.F.R. § 404.361(a).”
45 The voluntary acknowledgments of parentage are not part of the certification record before us.

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The wife presented the judgment of paternity and the amended birth certificates to the SSA, but the
agency remained unpersuaded. A United States administrative law judge, hearing the wife's claims de
novo, concluded, among other things, that the children did not qualify for benefits because they “are
not entitled to inherit from [the husband] under the Massachusetts intestacy and paternity
laws.”46 The appeals council of the SSA affirmed the administrative law judge's decision, which
thus became the commissioner's final decision for purposes of judicial review. The wife appealed to
the United States District Court for the District of Massachusetts, seeking a declaratory judgment to
reverse the commissioner's ruling.
The United States District Court judge certified the above question to this court because “[t]he
parties agree that a determination of these children's rights under the law of Massachusetts is
dispositive of the case and ... no directly applicable Massachusetts precedent exists.”
II
A
We have been asked to determine the inheritance rights under Massachusetts law of children
conceived from the gametes47 of a deceased individual and his or her surviving spouse.48 We have
not previously been asked to consider whether our intestacy statute accords inheritance rights to
posthumously conceived genetic children. Nor has any American court of last resort considered, in a
published opinion, the question of posthumously conceived genetic children's inheritance rights

46 The administrative law judge reasoned that the children were not “ascertainable heirs as defined by the intestacy laws

of Massachusetts,” because they were neither born nor in utero at the date of the husband's death and “the statutes and
cases contemplated an ascertainable child, one who had been conceived prior to the father's death.” He also found that
the children could not inherit as the husband's children under Massachusetts intestacy law because the evidence failed to
establish that the husband, before his death, either acknowledged the children as his own or intended to contribute to
their support. See G.L. c. 190, § 7. Further, the administrative law judge held that the SSA was not bound by the
judgment of paternity because that judgment “is not only inconsistent with Massachusetts paternity laws but also
constitutes a proceeding to which the [SSA] was not a party.” See Soc. Sec. Rul. 83-37c; Gray v. Richardson, 474 F.2d 1370
(6th Cir.1973). In her certification order, the United State District Court judge affirmed that, as a matter of Federal law,
the administrative law judge “was not compelled to give dispositive weight to the Probate Court judgment.” She did not
ask us to determine whether the paternity judgment is “inconsistent with Massachusetts paternity laws,” as the
administrative law judge concluded.
47 We use the term “gamete” here to denote “[a]ny germ cell, whether ovum or spermatozoon.” Stedman's Medical
Dictionary 701 (26th ed.1995).
48 Although the certified question asks us to consider an unsettled question of law concerning the paternity of children
conceived from a deceased male's gametes, we see no principled reason that our conclusions should not apply equally to
children posthumously conceived from a deceased female's gametes.

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under other States' intestacy laws.49
This case presents a narrow set of circumstances, yet the issues it raises are far reaching. Because the
law regarding the rights of posthumously conceived children is unsettled, the certified question is
understandably broad. Moreover, the parties have articulated extreme positions. The wife's principal
argument is that, by virtue of their genetic connection with the decedent,
posthumously conceived children must always be permitted to enjoy the inheritance rights of the
deceased parent's children under our law of intestate succession. The government's principal
argument is that, because posthumously conceived children are not “in being” as of the date of the
parent's death, they are always barred from enjoying such inheritance rights.
Neither party's position is tenable. In this developing and relatively uncharted area of human
relations, bright-line rules are not favored unless the applicable statute requires them. The
Massachusetts intestacy statute does not. Neither the statute's “posthumous children” provision, see
G.L. c. 190, § 8, nor any other provision of our intestacy law limits the class of posthumous children
to those in utero at the time of the decedent's death. Cf. La. Civ. Code Ann. art. 939 (West 2000)
(“A successor must exist at the death of the decedent”).50 On the other hand, with the act of
procreation now separated from coitus, posthumous reproduction can occur under a variety of
conditions that may conflict with the purposes of the intestacy law and implicate other firmly
established State and individual interests. We look to our intestacy law to resolve these tensions.
B
We begin our analysis with an overview of Massachusetts intestacy law. In our Commonwealth, the
devolution of real and personal property in intestacy is neither a natural nor a constitutional right. It
is a privilege conferred by statute. Merchants Nat'l Bank v. Merchants Nat'l Bank, 318 Mass. 563, 573,
62 N.E.2d 831 (1945). Our intestacy statute “excludes all rules of law which might otherwise be
operative. It impliedly repealed all preexisting statutes and supersedes the common law.” Cassidy v.
Truscott, 287 Mass. 515, 521, 192 N.E. 164 (1934).
We are aware of only two cases that have addressed, in varying degrees, the question before us. In Hecht v. Superior
Court, 16 Cal.App.4th 836, 20 Cal.Rptr.2d 275 (1993), the California Court of Appeal considered, among other things,
whether a decedent's sperm was “property” that could be bequeathed to his girlfriend. Id. at 847, 20 Cal.Rptr.2d 275. In
answering in the affirmative, the court noted, in dicta and without elaboration, that, under the provisions of California's
Probate Code, “it is unlikely that the estate would be subject to claims with respect to any such children” resulting from
insemination of the girl friend with the decedent's sperm. Id. at 859, 20 Cal.Rptr.2d 275. In Matter of Estate of Kolacy, 332
N.J.Super. 593, 753 A.2d 1257 (2000), the plaintiff brought a declaratory judgment action to have her children, who were
conceived after the death of her husband, declared the intestate heirs of her deceased husband in order to pursue the
children's claims for survivor benefits with the Social Security Administration. A New Jersey Superior Court judge held
that, in circumstances where the decedent left no estate and an adjudication of parentage did not unfairly intrude on the
rights of others or cause “serious problems” with the orderly administration of estates, the children would be entitled to
inherit under the State's intestacy law. Id. at 602, 753 A.2d 1257.
50 The cases relied on by the administrative law judge do no more than affirm the general common-law rule that heirs are
fixed as of the date of death, see National Shawmut Bank v. Joy, 315 Mass. 457, 467, 53 N.E.2d 113 (1944); Gorey v.
Guarente, 303 Mass. 569, 576-577, 22 N.E.2d 99 (1939), and that children born after death within the probable period of
gestation may inherit as issue of the deceased parent in exception to the general rule. See Bowen v. Hoxie, 137 Mass. 527,
528-529, 1884 WL 10644 (1884). See also Waverley Trust Co., petitioner, 268 Mass. 181, 183, 167 N.E. 274 (1929). Our
intestacy statute supersedes any Massachusetts common law in this area. See note 16, and accompanying text, infra.
49

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Section 1 of the intestacy statute directs that, if a decedent “leaves issue,” such “issue” will inherit a
fixed portion of his real and personal property, subject to debts and expenses, the rights of the
surviving spouse, and other statutory payments not relevant here. See G.L. c. 190, §151 To answer the
certified question, then, we must first determine whether the twins are the “issue” of the husband.
The intestacy statute does not define “issue.” However, in the context of intestacy the term “issue”
means all lineal (genetic) descendants, and now includes both marital and nonmarital 52 descendants.
See generally S.M. Dunphy, Probate Law and Practice § 8.5, at 123 (2d ed. 1997 & Supp.2001), and
cases cited.53 See also G.L. c. 4, § 7, Sixteenth (“Issue, as applied to the descent of estates, shall
include all the lawful lineal descendants of the ancestor”); Powers v. Wilkinson, 399 Mass. 650, 662,
506 N.E.2d 842 (1987) The term “ ‘[d]escendants' ... has long been held to mean persons ‘who by
consanguinity trace their lineage to the designated ancestor.’ ” Lockwood v. Adamson, 409 Mass. 325,
329, 566 N.E.2d 96 (1991), quoting Evarts v. Davis, 348 Mass. 487, 489, 204 N.E.2d 454 (1965).
The Massachusetts intestacy statute thus does not contain an express, affirmative requirement that
posthumous children must “be in existence” as of the date of the decedent's death. The Legislature
could surely have enacted such a provision had it desired to do so. Cf. La. Civ.Code Ann. art. 939
(effective July 1, 1999) (West 2000) (“A successor must exist at the death of the decedent”). See also
N.D. Cent.Code Ann. 14-18-04 (Michie 1997) (“A person who dies before a conception using that
person's sperm or egg is not a parent of any resulting child born of the conception”). We must
therefore determine whether, under our intestacy law, there is any reason that children conceived
after the decedent's death who are the decedent's direct genetic descendants-that is, children who
“by consanguinity trace their lineage to the designated ancestor”-may not enjoy the same succession
rights as children conceived before the decedent's death who are the decedent's direct genetic
descendants. Lockwood v. Adamson, supra.
To answer that question we consider whether and to what extent such children may take as intestate
heirs of the deceased genetic parent consistent with the purposes of the intestacy law, and not by
any assumptions of the common law. See Cassidy v. Truscott, supra at 520-521, 192 N.E. 164. In the
absence of express legislative directives, we construe the Legislature's purposes from statutory
indicia and judicial decisions in a manner that advances the purposes of the intestacy law. Houghton v.
Dickinson, 196 Mass. 389, 391, 82 N.E. 481 (1907).
51 General Laws c. 190, § 2, provides that the intestate personal property of the deceased shall be divided “among the

persons and in the proportions ... prescribed for the descent of real property,” subject to the limitations discussed
above. General Laws c. 190, § 3, governs the distribution of real property to the decedent's “children” and their “issue,”
who are preferred takers over other nonspousal heirs.
52 When not quoting directly from other sources employing different terminology, we shall use the term “nonmarital
child” throughout this opinion to describe a child born to parents who are not legally married to each other. The term
“nonmarital child” is less fraught with negative implications than is the traditional language of “illegitimacy” or
“bastardy.” As such, the term “nonmarital child” is more closely aligned with the Legislature's commitment to eradicate
distinctions between the rights of children based on the circumstances of birth.
53 Although by statute and case law adopted children are also included in the term “issue,” our discussion is limited to
consanguineous descendants. In certain express and very limited circumstances, the Legislature has cut off inheritance
rights of biological children, but only for the purpose of grafting the children into a new family with parents from whom
they can inherit in intestacy or by will. See G.L. c. 46, § 4B (child born as result of artificial insemination of wife with
husband's consent is legitimate child of marriage); G.L. c. 210, § 7 (inheritance rights of adopted child).

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The question whether posthumously conceived genetic children may enjoy inheritance rights under
the intestacy statute implicates three powerful State interests: the best interests of children, the
State's interest in the orderly administration of estates, and the reproductive rights of the genetic
parent. Our task is to balance and harmonize these interests to effect the Legislature's over-all
purposes.
1. First and foremost we consider the overriding legislative concern to promote the best interests of
children. “The protection of minor children, most especially those who may be stigmatized by their
‘illegitimate’ status ... has been a hallmark of legislative action and of the jurisprudence of this
court.” L.W.K. v. E.R.C., 432 Mass. 438, 447-448, 735 N.E.2d 359 (2000). Repeatedly, forcefully,
and unequivocally, the Legislature has expressed its will that all children be “entitled to the same
rights and protections of the law” regardless of the accidents of their birth. G.L. c. 209C, § 1. See
G.L. c. 119, § 1 (“It is hereby declared to be the policy of the commonwealth to direct its efforts,
first, to the strengthening and encouragement of family life for the protection and care of children
...”). Among the many rights and protections vouchsafed to all children are rights to financial
support from their parents and their parents' estates. See G.L. c. 119A, § 1 (“It is the public policy of
this commonwealth that dependent children shall be maintained, as completely as possible, from the
resources of their parents, thereby relieving or avoiding, at least in part, the burden borne by the
citizens of the commonwealth”); G.L. c. 191, § 20 (establishing inheritance rights for pretermitted
children); G.L. c. 196, §§ 1-3 (permitting allowances from estate to widows and minor children);
G.L. c. 209C, § 14 (permitting paternity claims to be commenced prior to birth). See also G.L. c. 190,
§§ 1-3, 5, 7-8 (intestacy rights).54
We also consider that some of the assistive reproductive technologies that make posthumous
reproduction possible have been widely known and practiced for several decades. See generally Banks,
Traditional Concepts and Nontraditional Conceptions: Social Security Survivor's Benefits for Posthumously Conceived
Children, 32 Loy. L.A. L.Rev. 251, 267-273 (1999). In that time, the Legislature has not acted to
narrow the broad statutory class of posthumous children to restrict posthumously conceived
children from taking in intestacy. Moreover, the Legislature has in great measure affirmatively
supported the assistive reproductive technologies that are the only means by which these children
can come into being. See G.L. c. 46, § 4B (artificial insemination of married woman). See also G.L. c.
175, § 47H; G.L. c. 176A, § 8K; G.L. c. 176B, § 4J; G.L. c. 176G, § 4 (insurance coverage for
infertility treatments). We do not impute to the Legislature the inherently irrational conclusion that
assistive reproductive technologies are to be encouraged while a class of children who are the fruit
of that technology are to have fewer rights and protections than other children.
In short, we cannot, absent express legislative directive, accept the commissioner's position that the
historical context of G.L. c. 190, § 8, dictates as a matter of law that all posthumously conceived
children are automatically barred from taking under their deceased donor parent's intestate estate.
We have consistently construed statutes to effectuate the Legislature's overriding purpose to
promote the welfare of all children, notwithstanding restrictive common-law rules to the contrary.
54 The provisions of the intestacy statute regarding paternity have been regularly amended to broaden the class of

nonmarital 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, § 1 (establishing succession rights for nonmarital child whose father's
paternity has been successfully adjudicated); St.1980, c. 396 (establishing succession rights for nonmarital child whose
father has acknowledged paternity).

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See, 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
N.E.2d 315 (1993); Powers v. Wilkinson, 399 Mass. 650, 661-662, 506 N.E.2d 842 (1987); Powers v.
Steele, 394 Mass. 306, 310, 475 N.E.2d 395 (1985); Hall v. Hancock, 32 Mass. 255, 15 Pick. 255
(1834).55 Posthumously conceived children may not come into the world the way the majority of
children do. But they are children nonetheless. We may assume that the Legislature intended that
such children be “entitled,” in so far as possible, “to the same rights and protections of the law” as
children conceived before death. See G.L. c. 209C, § 1.
2. However, in the context of our intestacy laws, the best interests of the posthumously conceived
child, while of great importance, are not in themselves conclusive. They must be balanced against
other important State interests, not the least of which is the protection of children who are alive or
conceived before the intestate parent's death. In an era in which serial marriages, serial families, and
blended families are not uncommon, according succession rights under our intestacy laws to
posthumously conceived children may, in a given case, have the potential to pit child against child
and family against family. Any inheritance rights of posthumously conceived children will reduce the
intestate share available to children born prior to the decedent's death. See G.L. c. 190, § 3(1). Such
considerations, among others, lead us to examine a second important legislative purpose: to provide
certainty to heirs and creditors by effecting the orderly, prompt, and accurate administration of
intestate estates. See generally S.M. Dunphy, Probate Law and Practice § 8.1, at 115 (2d ed.1997).
The intestacy statute furthers the Legislature's administrative goals in two principal ways: (1) by
requiring certainty of filiation between the decedent and his issue, and (2) by establishing limitations
periods for the commencement of claims against the intestate estate. In answering the certified
question, we must consider each of these requirements of the intestacy statute in turn.
First, as we have discussed, our intestacy law mandates that, absent the father's acknowledgment of
paternity or marriage to the mother, a nonmarital child must obtain a judicial determination of
paternity as a prerequisite to succeeding to a portion of the father's intestate estate. Both the United
States Supreme Court and this court have long recognized that the State's strong interest in
preventing fraudulent claims justifies certain disparate classifications among nonmarital children
based on the relative difficulty of accurately determining a child's direct lineal ancestor. See Lowell v.
Kowalski, 380 Mass. 663, 668-669, 405 N.E.2d 135 (1980). See also Trimble v. Gordon, 430 U.S. 762,
771, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).
Because death ends a marriage, see Callow v. Thomas, 322 Mass. 550, 555, 78 N.E.2d 637 (1948);
Rawson v. Rawson, 156 Mass. 578, 580, 31 N.E. 653 (1892), posthumously conceived children are
always nonmarital children. And because the parentage of such children can be neither
acknowledged nor adjudicated prior to the decedent's death, it follows that, under the intestacy
statute, posthumously conceived children must obtain a judgment of paternity as a necessary
prerequisite to enjoying inheritance rights in the estate of the deceased genetic father.56 Although
55 The common-law rule that heirs are ascertained at the time of the decedent's death has been superseded and, in any

event, has never been applied with rigid inflexibility, even outside of the context of posthumously born children. See, e.g.,
Waverley Trust Co., petitioner, 268 Mass. 181, 183-184, 167 N.E. 274 (1929) (“It is not an inflexible rule that under no
circumstances can the heirs of a person be ascertained as of a date later than that of death”).
56 It is equally clear that the intestacy statute requires an adjudication of parentage regardless of whether the deceased
genetic parent was male or female. The presumption of consanguinity between the nonmarital child and his or her
mother expressed in G.L. c. 190, § 5, is plainly inapplicable to the circumstances of posthumous reproduction. Cf. G.L.

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modern reproductive technologies will increase the possibility of disputed paternity claims,57
sophisticated modern testing techniques now make the determination of genetic paternity accurate
and reliable. See generally Note, Implications of DNA Technology on Posthumous Paternity Determination:
Deciding the Facts When Daddy Can't Give His Opinion, 35 B.C. L.Rev. 747 (1994). See also G.L. c. 209C,
§ 17.
We now turn to the second way in which the Legislature has met its administrative goals: the
establishment of a limitations period for bringing paternity claims against the intestate estate. Our
discussion of this important goal, however, is necessarily circumscribed by the procedural posture of
this case and by the terms of the certified question. The commissioner concedes that the timeliness
of the wife's Massachusetts paternity actions is not relevant to the Federal law question whether the
wife's children will be considered the husband's “natural children” for Social Security benefits
purposes, and that therefore whatever we say on this issue has no bearing on the wife's Federal
action. We also note that the certified question does not specifically address the limitations matter
and that, in their briefs to this court, the parties referred to the limitations question only peripherally.
See also note 6, supra.
Nevertheless, the limitations question is inextricably tied to consideration of the intestacy statute's
administrative goals. In the case of posthumously conceived children, the application of the one-year
limitations period of G.L. c. 190, § 7 is not clear; it may pose significant burdens on the surviving
parent, and consequently on the child.58 59 It requires, in effect, that the survivor make a decision to
bear children while in the freshness of grieving. It also requires that attempts at conception succeed
quickly. Cf. Commentary, Modern Reproductive Technologies: Legal Issues Concerning Cryopreservation and
Posthumous Conception, 17 J. Legal Med. 547, 549 (1996) (“It takes an average of seven insemination
attempts over 4.4 menstrual cycles to establish pregnancy”). Because the resolution of the time
constraints question is not required here, it must await the appropriate case, should one arise.
3. Finally, the question certified to us implicates a third important State interest: to honor the
reproductive choices of individuals. We need not address the wife's argument that her reproductive
rights would be infringed by denying succession rights to her children under our intestacy law.
Nothing in the record even remotely suggests that she was prevented by the State from choosing to
conceive children using her deceased husband's semen. The husband's reproductive rights are a
c. 209C, § 21 (applying provisions of paternity statute “[i]nsofar as practicable” to disputes regarding maternity). See also
G.L. c. 190, § 7 (referring to c. 209C).
57 It is now possible for a child to be born by means of reproductive technologies in circumstances in which several
people could claim or be claimed to be the child's legal parents: an egg donor, a sperm donor, a gestational carrier, and
one or two people who are not biologically related to the child but who have arranged for the contributions of the
others and who intend to raise the child. See Shapo, Matters of Life and Death: Inheritance Consequences of Reproductive
Technologies, 25 Hofstra L.Rev. 1091, 1102 (1997)
58 The paternity statute permits paternity actions to be commenced prior to a child's birth, see G.L. c. 209C, § 14. Thus, a
Probate Court judge, in the exercise of general equity jurisdiction under G.L. c. 215, § 6, may consider a claim to
establish paternity of a posthumously conceived child where such action is commenced during a pregnancy resulting
from the joining of the gametes of the surviving spouse and the deceased spouse within the time period prescribed by
G.L. c. 190, § 7.
59 We reject the wife's argument that a posthumously conceived child may be considered a “creditor” whose claim has
not yet “accrued” within the meaning of G.L. c. 197, § 13, until after the child's birth. Section 13 permits a creditor
“whose right of action shall not accrue within one year after the date of death of the deceased” to present his or her
claims “at any time before the estate is fully administered.” See Flannery v. Flannery, 429 Mass. 55, 705 N.E.2d 1140
(1999). Those who take by intestate succession are not “creditors.” Rather, they are the heirs who receive what remains
of the estate after all creditors have been paid.

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more complicated matter.
In A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051 (2000), we considered certain issues surrounding
the disposition of frozen preembryos. A woman sought to enforce written agreements between
herself and her former husband. The wife argued that these agreements permitted her to implant
frozen preembryos created with the couple's gametes during the marriage, even in the event of their
divorce. We declined to enforce the agreements. Persuasive to us, among other factors, was the lack
of credible evidence of the husband's “true intention” regarding the disposition of the frozen
preembryos, 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
reproductive integrity, we held that “forced procreation is not an area amenable to judicial
enforcement.” Id. at 160, 725 N.E.2d 1051. In short, A.Z. v. B.Z., supra, recognized that individuals
have a protected right to control the use of their gametes.
Consonant with the principles identified in A.Z. v. B.Z., supra, a decedent's silence, or his equivocal
indications of a desire to parent posthumously, “ought not to be construed as consent.” See Schiff,
Arising from the Dead: Challenges of Posthumous Procreation, 75 N.C. L.Rev. 901, 951 (1997).60 The
prospective donor parent must clearly and unequivocally consent not only to posthumous
reproduction but also to the support of any resulting child. Cf. Paternity of Cheryl, 434 Mass. 23, 37,
746 N.E.2d 488 (2001) (“The law places on men the burden to consider carefully the permanent
consequences that flow from an acknowledgment of paternity”). After the donor-parent's death, the
burden rests with the surviving parent, or the posthumously conceived child's other legal
representative, to prove the deceased genetic parent's affirmative consent to both requirements for
posthumous parentage: posthumous reproduction and the support of any resulting child.
This two-fold consent requirement arises from the nature of alternative reproduction itself. It will
not always be the case that a person elects to have his or her gametes medically preserved to create
“issue” posthumously. A man, for example, may preserve his semen for myriad reasons, including,
among others: to reproduce after recovery from medical treatment, to reproduce after an event that
leaves him sterile, or to reproduce when his spouse has a genetic disorder or otherwise cannot have
or safely bear children. That a man has medically preserved his gametes for use by his spouse thus
may indicate only that he wished to reproduce after some contingency while he was alive, and not
that he consented to the different circumstance of creating a child after his death. Uncertainty as to
consent may be compounded by the fact that medically preserved semen can remain viable for up to
ten years after it was first extracted, long after the original decision to preserve the semen has passed
and when such changed circumstances as divorce, remarriage, and a second family may have
intervened. See Banks, Traditional Concepts and Nontraditional Conceptions: Social Security Survivor's Benefits
for Posthumously Conceived Children, 32 Loy. L.A. L.Rev. 251, 270 (1999).61
60 No question has arisen in this case concerning the right of the surviving wife to use the decedent husband's gametes.

Cf. Hecht v. Superior Court, 16 Cal.App.4th 836, 20 Cal.Rptr.2d 275 (1993).
61 Of course, a man will not always medically deposit his semen in a sperm bank for the use by a spouse or other
designated person. He may also deposit his semen in a sperm bank, usually in return for compensation, for use by an
anonymous third party or third parties. See Chester, Freezing the Heir Apparent: A Dialogue on Postmortem Conception, Parental
Responsibility, and Inheritance, 33 Hous. L.Rev. 967, 977 & n.41 (1996). The sperm donor generally signs a contract
relinquishing all parental rights and responsibilities, “and the majority of states seem to protect anonymous donors at
least from unwanted responsibility for their offspring.” Id. See G.L. c. 46, § 4B. See also R.R. v. M.H., 426 Mass. 501, 509,
689 N.E.2d 790 (1998) (“Section 4B does not comment on the rights and obligations, if any, of the biological father,
although inferentially he has none”). Such protections may reflect widespread consensus that shielding donors from the

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Such circumstances demonstrate the inadequacy of a rule that would make the mere genetic tie of
the decedent to any posthumously conceived child, or the decedent's mere election to preserve
gametes, sufficient to bind his intestate estate for the benefit of any posthumously conceived child.
Without evidence that the deceased intestate parent affirmatively consented (1) to the posthumous
reproduction and (2) to support any resulting child, a court cannot be assured that the intestacy
statute's goal of fraud prevention is satisfied.
C
The certified question does not require us to specify what proof would be sufficient to establish a
successful claim under our intestacy law on behalf of a posthumously conceived child. Nor have we
been asked to determine whether the wife has met her burden of proof.
It is undisputed in this case that the husband is the genetic father of the wife's children. However,
for the reasons stated above, that fact, in itself, cannot be sufficient to establish that the husband is
the children's legal father for purposes of the devolution and distribution of his intestate property.
In the United States District Court, the wife may come forward with other evidence as to her
husband's consent to posthumously conceive children. She may come forward with evidence of his
consent to support such children. We do not speculate as to the sufficiency of evidence she may
submit at trial.
III
For the second time this term, we have been confronted with novel questions involving the rights of
children born from assistive reproductive technologies. See Culliton v. Beth Israel Deaconess Med. Ctr.,
435 Mass. 285, 756 N.E.2d 1133 (2001). As these technologies advance, the number of children they
produce will continue to multiply. So, too, will the complex moral, legal, social, and ethical questions
that surround their birth. The questions present in this case cry out for lengthy, careful examination
outside the adversary process, which can only address the specific circumstances of each controversy
that presents itself. They demand a comprehensive response reflecting the considered will of the
people.
In the absence of statutory directives, we have answered the certified question by identifying and
harmonizing the important State interests implicated therein in a manner that advances the
Legislature's over-all purposes. In so doing, we conclude that limited circumstances may exist,
consistent with the mandates of our Legislature, in which posthumously conceived children may
enjoy the inheritance rights of “issue” under our intestacy law. These limited circumstances exist
where, as a threshold matter, the surviving parent or the child's other legal representative
demonstrates a genetic relationship between the child and the decedent. The survivor or
representative must then establish both that the decedent affirmatively consented to posthumous
conception and to the support of any resulting child. Even where such circumstances exist, time
limitations may preclude commencing a claim for succession rights on behalf of a
responsibilities of legal parentage is necessary to encourage the socially beneficial practice of sperm donation. It may also
reflect an intention to avoid the myriad complications of probate, title to property, and fragmentation of the donor's
estate that might result from contrary rules. See generally Shapo, Matters of Life and Death: Inheritance Consequences of
Reproductive Technologies, 25 Hofstra L.Rev. 1091, 1218 (1997).

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posthumously conceived child. In any action brought to establish such inheritance rights, notice
must be given to all interested parties.
The Reporter of Decisions is to furnish attested copies of this opinion to the clerk of this court. The
clerk in turn will transmit one copy, under the seal of this court, to the clerk of the United States
District Court for the District of Massachusetts, as the answer to the question certified, and will also
transmit a copy to each party.
Notes and Questions
1. Woodward was a Social Security case. However, the Court based its decision on an analysis of the
state’s intestacy system. Was that the right analysis? Should the same standard be applied to cases
involving posthumously conceived children seeking to receive Social Security benefits and to cases
involving posthumously conceived children seeking to inherit under the intestacy system?
2. What is the rule established by the Woodward case? Design a statute based upon the criterion set
out by the court. Would such a statute survive a constitutional challenge?
3. The court in Woodward required that the woman present “evidence that the deceased intestate
parent affirmatively consented to (1) the posthumous reproduction and (2) to support any resulting
child.” What proof would be sufficient to establish a successful claim applying that standard? What
are the pros and cons of that two-fold consent requirement?
4. The Woodward court did not address the time constraints question. Should a time limit be placed
on when the posthumously conceived child must be produced or born? What factors should be
considered when establishing that time period? What are the pros and cons of establishing a specific
time period?
5. What are the pros and cons of treating posthumously conceived children as just another class of
posthumously born children?
6. What are the state interests that are implicated by giving posthumously conceived children the
right to inherit from their fathers?
7. The Restatement (Third) of Property: Wills and Other Donative Transfers § 2.5, cmt. 1 (1999)
provides “[T]o inherit from the decedent, a child produced from genetic material of the decedent by
assisted reproductive technology must be born within a reasonable time after the decedent’s death in
circumstances indicating that the decedent would have approved of the child’s right to inherit. A
clear case would be that of a child produced by artificial insemination of the decedent’s widow with
his frozen sperm.” What are the pros and cons of this rule? Would the outcome of Woodward have
been different if the Restatement rule had applied?
8. In a California case, the court upheld an agreement signed by a man requesting that, instead of
being released to his wife, his frozen sperm be discarded in the event of his death. The man’s widow
claimed that she had a right to use his sperm to attempt to conceive a child. The court stated that
the man’s intent should control because it was his sperm. Estate of Kievernagel vs. Patsy Kievernagel, __
Cal. Rptr. 3d __, 2008 WL 4183504 (Cal. App. 3 Dist.) (Sept. 11, 2008). Should the reproductive
251

rights of the live person be given preference over the reproductive rights of the deceased person? In
order words, is the right to not procreate a fundamental right?
Probate law is really localized. Thus, the outcome of the case usually turns upon whether or
not the court is willing to give the intestacy statute a broad reading. As the next cases illustrate,
sometimes a court is willing to strictly construe the words of the statute even when the construction
goes against the best interests of the child and the wishes of the deceased man. On other occasions,
a court will permit the child to inherit in order to carry out the dead man’s intent.

Khabbaz v. Commissioner of Social Security Administration, 930 A.2d 1180 (N.H. 2007)
DUGGAN, J.
Pursuant to Supreme Court Rule 34, the United States District Court for the District of New
Hampshire (Barbadoro, J.) certified the following question for our consideration:
Is a child conceived after her father's death via artificial insemination eligible to inherit from
her father as his surviving issue under New Hampshire intestacy law?
We respond in the negative.
The district court's order provides the following facts. Donna M. Eng and Rumzi Brian Khabbaz
were married in September 1989 and, six years later, had a son together. In April 1997, Mr. Khabbaz
was diagnosed with a terminal illness. Subsequently, he began to bank his sperm so that his wife
could conceive a child through artificial insemination. He also executed a consent form indicating
that the sperm could be used by his wife “to achieve a pregnancy” and that it was his “desire and
intent to be legally recognized as the father of the child to the fullest extent allowable by law.” Mr.
Khabbaz died on May 23, 1998.
Christine C. Eng Khabbaz was conceived by artificial insemination after Mr. Khabbaz's death, using
his banked sperm, and was born in the summer of 2000. At some point thereafter, she sought social
security survivor's benefits. Under federal law, her eligibility for the benefits depends upon whether
she can inherit from her father under state intestacy law. As the federal district court explained:
[U]nder the Social Security Act (the “Act”), an individual who is the “child” of an insured wage
earner and is dependent on the insured at the time of his death is entitled to child's insurance
benefits. 42 U.S.C. §402(d)(1). In determining “child” status, the Act instructs the Commissioner [to]
... apply such law as would be applied in determining the devolution of intestate personal property
by the courts of the State in which such insured individual was domiciled at the time of his death.
Applicants who according to such law would have the same status relative to taking intestate
personal property as a child of parent shall be deemed such. Thus, if Christine may inherit from Mr.
Khabbaz as his surviving issue under New Hampshire intestacy law, she is considered to be the
“child” of Mr. Khabbaz under the Act and is therefore entitled to child's insurance benefits.
(Quotation, citation, brackets and ellipses omitted.)
The Commissioner of the Social Security Administration (commissioner) denied Christine's
application for survivor's benefits based upon an interpretation of RSA 561:1, our state's intestacy
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distribution statute. After a hearing, an administrative law judge upheld the commissioner's decision,
and the Appeals Council of the Social Security Administration subsequently affirmed. Christine then
appealed the commissioner's decision to the federal district court. Recognizing that this case raises
an unresolved question of New Hampshire law, the district court certified the question to us.
Responding to the certified question requires us to interpret our state intestacy statutes. In matters
of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the
words of the statute considered as a whole. Chase v. Ameriquest Mortgage Co., 155 N.H. 19, 22, 921
A.2d 369, 372 (2007). When examining the language of the statute, we ascribe the plain and ordinary
meaning to the words used. Id. at 22, 921 A.2d at 372. We interpret legislative intent from the statute
as written and will not consider what the legislature might have said or add language that the
legislature did not see fit to include. Id. at 22, 921 A.2d at 373.
RSA chapter 561 (2007) sets forth a comprehensive scheme for estate distribution. RSA 561:1, in
particular, governs the devolution of the real and personal estate upon intestacy. RSA 561:1, I,
prescribes the circumstances under which a surviving spouse may take from the estate. RSA 561:1,
II, in turn, describes the procedure for distributing that portion of the intestate estate not passing to
the surviving spouse.
Eng argues that her daughter is a “surviving issue” within the meaning of the statute. However, the
plain meaning of the word “surviving” is “remaining alive or in existence.” Webster's Third New
International Dictionary 2303 (unabridged ed.2002). In order to remain alive or in existence after her
father passed away, Eng would necessarily have to have been “alive” or “in existence” at the time of
his death. She was not. She was conceived more than a year after his death. It follows, therefore, that
neither she nor any posthumously conceived child is a “surviving issue” within the plain meaning of
the statute.
Alternatively, Eng contends that even if her daughter is not a “surviving issue,” RSA 561:1, II(a)
does not include the word “surviving,” and therefore it applies to any “issue”-including
posthumously conceived children. She argues that her position is buttressed by RSA 21:20 (2000),
which defines “issue” as “includ[ing] all the lawful lineal descendants of the ancestor.”
In isolation, the provisions cited by Eng might support her position. However, we do not construe
statutes in isolation; instead, we attempt to do so in harmony with the overall statutory scheme.
Chase, 155 N.H. at 22, 921 A.2d at 373. Parts (b) through (e) of RSA 561:1, II all expressly reference
“surviving issue” in describing the order of distribution. Thus, when viewed as a whole, RSA 561:1,
II evinces a clear legislative intent to create an overall statutory scheme under which those who
“survive” a decedent-that is, those who remain alive at the time of the decedent's death-may inherit
in a timely and orderly fashion contingent upon who is alive. To hold that part (a) does not require
the decedent's issue to “survive” would undermine the orderly distribution process clearly
contemplated by the legislature. See id. at 22, 921 A.2s at 373 (when interpreting two or more
statutes that deal with a similar subject matter, we construe them so that they do not contradict each
other, and so that they will lead to reasonable results and effectuate the legislative purpose of the
statutes). Accordingly, when part (a) is interpreted in light of parts (b) through (e) and viewed within
its larger statutory context, the absence of the word “surviving” in part (a) makes no difference in
determining how the decedent's property is distributed.

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RSA 21:20 does not compel a contrary result. RSA chapter 21 (2000 & Supp.2006) sets forth general
rules of statutory construction, including the definition of “issue” found at RSA 21:20. RSA 21:1
provides, however, that the definitions in RSA chapter 21 shall be observed in construing statutes
“unless such construction would be inconsistent with the manifest intent of the legislature or
repugnant to the context of the same statute.” To conclude that RSA 21:20 broadens RSA 561:1, ,
II(a) to include all issue-whether surviving or not-would undermine the finality and orderly
distribution that the legislature clearly contemplated. After all, on a practical level, children may be
conceived posthumously several years after an individual's death, and waiting for the potential birth
of a posthumously conceived child could tie up estate distributions indefinitely. Moreover, in terms
of how the statutory scheme operates, requiring estates to wait for the potential birth of a
posthumously conceived child would render meaningless the contingency scheme created by RSA
561:1, II(b)-II(e) because application of those parts is dependent upon a determination of the
existence of “surviving issue,” a determination that cannot be made if using a male's banked sperm
any time after his death could create “issue” entitled to inherit under the statute. Accordingly,
because application of the definition of “issue” in RSA 21:20 would be inconsistent with the
manifest intent of the legislature and repugnant to the context of RSA 561:1, II, we do not apply it.
RSA 21:1.
We also reject Eng's further argument that another statute, RSA 561:4, renders her daughter eligible
to inherit under New Hampshire intestacy law. RSA 561:4 describes the inheritance rights of
children born to unwed parents.
Eng contends that Mr. Khabbaz's death ended the marriage, leaving Christine born to unwed
parents and eligible to inherit from her father as long as she satisfied any of the conditions listed in
RSA 561:4, II(a)-(e). We disagree. Viewed as a whole, RSA 561:4 evinces a clear legislative intent to
establish a scheme of inheritance rights, upon intestacy, for illegitimate children. See N.H.S. Jour. 899
(1983) (“This [bill] would provide for an illegitimate child whose mother and father dies intestate, to
be able to inherit from both the mother and the father.”). If a man who was both a husband and a
father died during the last few months of his wife's pregnancy, the parents would no longer be
married; however, he and his wife would not be deemed “unwed” and no one would question the
legitimacy of the child. The same must be true in the instant case. Although Christine's father died,
her parents are not “unwed” for purposes of the statute, and she does not argue that she is
illegitimate. To the contrary, she refers to herself as her father's “legitimate child.” See RSA 168-B:7
(2002) (child created through artificial insemination is deemed legitimate). Accordingly, we reject
Eng's contentions based upon RSA 561:4.
Eng also argues that RSA chapter 168-B (2002), a framework governing artificial insemination, in
vitro fertilization, preembryo transfer and surrogacy, renders her daughter eligible to inherit from
Mr. Khabbaz if he died intestate.
RSA 168-B:9, entitled “Intestate and Testate Succession,” provides:
I. Subject to the provisions of paragraph II, a child shall be considered a child only of his or her
parent or parents, and the parent or parents shall be considered the parent or parents of the child, as
determined under RSA 168-B:2-5, for purposes of:
(a) Intestate succession.
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(b) Taking against the will of any person.
(c) Taking under the will of any person, unless such will otherwise provides.
(d) Being entitled to any support or similar allowance during the administration of a parent's
estate.
II. For purposes of paragraph I, a child born of a surrogate is:
(a) The child of the intended parents from the moment of the child's birth unless the
surrogate gives notice of her intent to keep the child pursuant to RSA 168-B:25, IV.
(b) The child of the surrogate and her husband, if any, or if none, the person presumed to be
the father under RSA 168-B:3, I(d), from the moment of the child's birth, if the surrogate
gives notice of her intent to keep the child pursuant to RSA 168-B:25, IV.
These provisions establish certain rights for children born by alternative means. However, nothing
in the plain language of RSA 168-B:9 either affirmatively or implicitly modifies the requirement of
RSA 561:1 that the issue who inherit upon intestacy must be “surviving.” Moreover, to hold that
RSA 168-B:9 creates a distribution scheme different from that created by RSA 561:1 would be
inconsistent with our practice of construing statutes that deal with a similar subject matter so that
they do not contradict each other, and so that they will lead to reasonable results and effectuate the
legislative purpose. Chase, 155 N.H. at 22, 921 A.2d at 373.
Eng also argues that the Uniform Simultaneous Death Act (USDA), RSA chapter 563 (2007),
supports her position because “[t]here is no requirement under the USDA that the surviving
individual be in existence, in gestation or in utero at the time of the death of the individual upon
whose death the survivorship is based, only that they survive the decedent more than one hundred
and twenty hours.” In light of our discussion of “surviving issue” above, we reject this argument.
Finally, based essentially upon public policy considerations, Eng argues that we should adopt the
reasoning of the Massachusetts Supreme Judicial Court in Woodward v. Commissioner of Social Security,
435 Mass. 536, 760 N.E2d 257 (2002). Woodward, however, is distinguishable because it is based
upon Massachusetts statutes that differ from our own. Furthermore, to the extent Eng argues that
public policy requires us to read RSA 561:1, II as allowing children who are posthumously conceived
within a reasonable time after a parent's death to inherit, we agree with the special concurrence that
“the intestacy statute ... essentially leaves an entire class of posthumous[ly conceived] children
unprotected.” However, the present statute requires that result. To reach the opposite result and
adopt the reasoning of Woodward would require us to add words to a statute, Chase, 155 N.H. at 22,
921 A.2d at 373. We reserve such matters of public policy for the legislature. State v. Kidder, 150
N.H. 600, 604, 843 A.2d 312 (2004). Other state legislatures have grappled with these issues, and we
leave it to ours, if it chooses, to do the same. (citations omitted).
Accordingly, for the foregoing reasons, we answer the certified question in the negative.
Remanded.

255

In Re Estate of Kolacy, 753 A.2d 1257 (N.J. 2000)
STANTON, .J.S.C.
On March 31, 2000, I delivered an oral opinion declaring that Amanda Kolacy and Elyse Kolacy,
three year old girls who are residents of New Jersey, are the heirs of their father William Kolacy,
even though they were born eighteen months after his death. This opinion supersedes my earlier
oral opinion.
The plaintiff in this action is Mariantonia Kolacy. She has brought this action to obtain a declaration
that her two children, Amanda and Elyse, have the status of intestate heirs of her late husband,
William J. Kolacy. Because this action involves a claim that one or more statutes of the State of New
Jersey are unconstitutional, the Attorney General of New Jersey was notified of the action and has
appeared through a Deputy Attorney General to defend the constitutionality of the state statutes
involved.
On February 7, 1994, William J. Kolacy and Mariantonia Kolacy were a young married couple living
in Rockaway, New Jersey. On that date, William Kolacy was diagnosed as having leukemia and he
was advised to start chemotherapy as quickly as possible. He feared that he would be rendered
infertile by the disease or by the treatment for the disease, so he decided to place his sperm in the
Sperm and Embryo Bank of NJ. On the morning of February 8, 1994, William Kolacy and
Mariantonia Kolacy harvested his sperm and Mariantonia Kolacy delivered it to the sperm bank.
Later that day, the chemotherapy began. After the chemotherapy had been in progress for one
month, a second harvesting of sperm occurred and was placed in the sperm bank.
Unfortunately, William Kolacy’s leukemia led to his death at the age of 26 on April 15, 1995. He
died domiciled in New Jersey. On April 3, 1996, almost a year after the death of William Kolacy,
plaintiff Mariantonia Kolacy authorized the release of his sperm from the Sperm and Embryo Bank
of NJ to the Center for Reproductive Medicine and Infertility at Cornell University Medical College
in New York City. An IVF fertilization procedure uniting the sperm of William Kolacy and eggs
taken from Mariantonia Kolacy was performed at the Center. The procedure was successful and the
embryos which resulted were transferred into the womb of Mariantonia Kolacy. Twin girls, Amanda
and Elyse, were born to Mariantonia Kolacy on November 3, 1996. The births occurred slightly
more than eighteen months after the death of William Kolacy.
I find that the certifications submitted by Mariantonia Kolacy and Dr. Isaac Kligman of the Center
for Reproductive Medicine and Infertility are fully credible and that they firmly establish the facts set
forth above. Accordingly, it is clear that Amanda and Elyse Kolacy are genetically and biologically
the children of William Kolacy.
Plaintiff is currently pursuing her claims and those of the children through appellate process within
the Social Security Administration, and, if necessary, will eventually litigate them in the federal
courts. In bringing this action in the Superior Court, the plaintiff is attempting to obtain a state court
ruling which will be helpful to her in pursuing her federal claims before a federal administrative
agency and before the federal courts.
The State of New Jersey, speaking through the Deputy Attorney General appearing in this action,
256

has urged me not to adjudicate this case. The State argues that the plaintiff’s claim really is not
justiciable in this court. The argument is that plaintiff is basically seeking to assert federal rights
before federal tribunals and that she should be restricted to presenting her case before federal
tribunals. Those tribunals, of course, are capable of looking at New Jersey law and of making
perfectly intelligent judgments with respect to it. The State, in effect, argues that it would be an
inappropriate intrusion on federal adjudicatory processes for me to become involved in determining
the status of Amanda and Elyse Kolacy.
The ultimate question of whether Amanda and Elyse Kolacy are entitled to Social Security benefits
is something which is exclusively a matter for federal tribunals. Even if I were to determine that the
children are the heirs of William Kolacy under New Jersey law, it does not necessarily follow that
they would be entitled to benefits under the Social Security Act, because there are important federal
policy considerations which are applicable and which do not involve merely the status of the
children as heirs under New Jersey law. However, the interpretation of New Jersey statutes and the
determination of what New Jersey law is are primarily the responsibility of New Jersey courts.
Federal courts routinely look to state courts for authoritative rulings with respect to state law. See
generally, Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978); Cotton States Mutual Ins.
Co. v. Anderson, 749 F.2d 663 (11th Cir. 1984). In the case before me, a proper determination of what
New Jersey law is will not necessarily be dispositive of the rights of plaintiff and the children under
federal law, and it would not be appropriate for a state court to intrude into federal adjudicatory
processes. On the other hand, it would clearly be unfortunate for those federal adjudicatory
processes to reach a result based in part upon an incorrect determination by federal tribunals of
New Jersey law. Accordingly, even if this action is viewed primarily as an adjunct to claims asserted
in federal proceedings, it is appropriate for me to interpret New Jersey statutory law as it applies to
Amanda and Elyse Kolacy.
I also note that, entirely aside from claims being asserted with respect to Social Security benefits,
Amanda and Elyse are entitled to have their status as heirs of their father determined for a variety of
state law purposes. The State argues that, because William Kolacy left no assets and thus had no
estate at the time of his death, there is really no point in determining who are his heirs under New
Jersey law. William Kolacy died without a will, but he did not leave any assets which would pass
under the intestate laws of New Jersey. His assets were modest because of his young age and
because of the difficult economic stresses that were placed upon him and his wife by his illness.
Such assets as he had passed to his wife because of the joint ownership of property. Therefore, a
determination that Amanda and Elyse were his heirs would not presently entitle them to any
property under intestate law.
However, a present determination of their status as heirs is appropriate because of the effect it has
on their general legal and social status and because of the impact which it may have upon property
rights as they evolve over a period of time. For one thing, it is conceivable, though not very likely,
that William Kolacy might have an estate because of assets passing to him at a future date. More
realistically, a determination that the children are the heirs of William Kolacy could be significant in
terms of their rights to take from his parents or from his collateral relatives in the event that one or
more of those persons were to die intestate. Their status as his heirs could also be significant in
determining their rights under the wills of their father’s relatives. Thus, for a variety of estate law
purposes, there is a present real utility to a declaration of the inheritance status of Amanda and
Elyse. I will therefore entertain this action and I will make a ruling with respect to whether Amanda
and Elyse legally qualify as the heirs of William Kolacy. See New Jersey Citizen Action v. Riviera Motel
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Corp., 296 N.J.Super. 402, 686 A.2d 1265 (App.Div.1997); New Jersey Home Builders Association v.
Division of Civil Rights, 81 N.J.Super. 243, 195 A.2d 318 (Ch.Div. 1963).
There are no New Jersey decisions dealing with the central issue presented in this case—whether
Amanda and Elyse Kolacy, conceived after the death of their biological father and born more than
eighteen months after his death, qualify as his heirs under state intestate law. I have not been able to
find any American appellate court decisions dealing with that central issue.
Counsel have discussed at some length N.J.S.A. 3B:5-8, which is the New Jersey statute dealing with
after born heirs. That statute provides as follows: “Relatives of the decedent conceived before his
death but born thereafter inherit as if they had been born in the lifetime of the decedent.” Counsel
for plaintiff argues that this statute, as applied to children such as Amanda and Elyse Kolacy, is
unconstitutional because “the effect of the statute as to posthumously conceived children is to both
invidiously and irrationally discriminate against them.” My view is that the constitutional argument
against this statute is fundamentally misplaced and that it really is not necessary to reach the issue of
whether this statute is constitutional.
A brief discussion of elementary estate law concepts is appropriate at this point. When a person dies,
whether he dies leaving a will or whether he dies intestate, there is a real life need and a legal need to
determine which persons are entitled to take his estate, and when that determination is made the
general policy is to deliver to those persons rather promptly the property to which they are entitled.
Thus, the identity of people who will take property from a decedent has traditionally been
determined as of the date of the decedent’s death.
However, there have long been exceptions to the rule that the identity of takers from a decedent’s
estate is determined as of the date of death. Those exceptions are based on human experience going
back to time immemorial. We have always been aware that men sometimes cause a woman to
become pregnant and then die before the pregnancy comes to term and a child is born. It has always
been routine human experience that men sometimes have children after they die. To deal fairly with
this reality, decisional law and statutory law have long recognized that it is appropriate to hold the
process of identifying takers from a decedent’s estate open long enough to allow after born children
to receive property from and through their father. See Byerly v. Tolbert, 250 N.C. 27, 108 S.E.2d 29
(1959); Baugh v. Baugh, 25 Kan.App.2d 871, 973 P.2d 202 (1999).
Aside from the fact that a man sometimes dies before his child is born, there is the fact that when
any person dies, a woman related to that decedent may be pregnant with a child who upon birth will
qualify as a member of a class of persons entitled to take property from the decedent. The law has
traditionally held the class of persons entitled to take from the decedent open long enough to allow
a child who was being carried in his or her mother’s womb at the time of the decedent’s death to
receive a share of the property. See Estate of Wolyniec v. Moe, 94 N.J.Super. 43, 226 A.2d 743 (Ch.Div.
1967); Chemical Bank & Trust Company v. Godfrey, 29 N.J.Super. 226, 102 A.2d 108 (Ch.Div.1953).
N.J.S.A. 3B:5-8 is part of that traditional recognition of exceptions to the rule that takers from a
decedent’s estate should be determined as of the date of the decedent’s death. N.J.S.A. 3B:5-8 was
enacted in 1981 as part of a fairly broad reorganization of statutory law dealing with decedents’
estates. In 1981, reproductive technology had advanced to the point that it is conceivable that the
legislature might have been aware of the kind of problem posed by our present case. However, the
relevant legislative history indicates that the current statute was simply a carryover of earlier statutes
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going back to at least 1877. The simple fact is that when the legislature adopted N.J.S.A. 3B:5-8 it
was not giving any thought whatever to the kind of problem we have in this case. To the extent that
there was a conscious legislative intent about reproductive processes involved, the intent was
undoubtedly to deal fairly and sensibly with children resulting from traditional sexual activity in
which a man directly deposits sperm into the body of a woman. With one exception mentioned
hereafter, the New Jersey Legislature has never addressed the problems posed in estate law by
current human reproductive technology.
The ability to remove sperm and eggs from human beings and to preserve their viability by storing
them for long periods of time at low temperatures makes it possible for children to come into
existence as the genetic and biological offspring of a father or of a mother who has long since been
dead. My impression is that it is now possible to preserve the viability of human genetic material for
as long as ten years. It is likely that the time will be extended in the future. The evolving human
productive technology opens up some wonderful possibilities, but it also creates difficult issues and
potential problems in many areas. It would undoubtedly be useful for the Legislature to deal
consciously and in a well informed way with at least some of the issues presented by reproductive
technology.
The State has urged that courts should not entertain actions such as the present one, but should wait
until the Legislature has dealt with the kinds of issues presented by this case. As indicated above, I
think it would be helpful for the Legislature to deal with these kinds of issues. In the meanwhile, life
goes on, and people come into the courts seeking redress for present problems. We judges cannot
simply put those problems on hold in the hope that some day (which may never come) the
Legislature will deal with the problem in question. Simple justice requires us to do the best we can
with the statutory law which is presently available. As I look at N.J.S.A. 3B:5-8 and other statutory
provisions dealing with intestate succession, I discern a basic legislative intent to enable children to
take property from their parents and through their parents from parental relatives. Although the
Legislature has not dealt with the kind of issue presented by children such as Amanda and Elyse, it
has manifested a general intent that the children of a decedent should be amply provided for with
respect to property passing from him or through him as the result of a death. It is my view that the
general intent should prevail over a restrictive, literal reading of statutes which did not consciously
purport to deal with the kind of problem before us.
Given that general legislative intent, it seems to me that once we establish, as we have in this case,
that a child is indeed the offspring of a decedent, we should routinely grant that child the legal status
of being an heir of the decedent, unless doing so would unfairly intrude on the rights of other
persons or would cause serious problems in terms of the orderly administration of estates.
I note that after born children who come into existence because of modern reproductive techniques
pose special challenges to society and to our legal system. Historically, after born children were
conceived and in their mother’s womb at the time of a decedent’s death and they could be counted
on to appear no later than approximately nine months after that death. Now they can appear after
the death of either a mother or a father and they can appear a number of years after that death.
Estates cannot be held open for years simply to allow for the possibility that after born children may
come into existence. People alive at the time of a decedent’s death who are entitled to receive
property from the decedent’s estate are entitled to receive it reasonably promptly. It would
undoubtedly be both fair and constitutional for a Legislature to impose time limits and other
situationally described limits on the ability of after born children to take from or through a parent.
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In the absence of legislative provision in that regard, it would undoubtedly be fair and constitutional
for courts to impose limits on the ability of after born children to take in particular cases.
In our present case, there are no estate administration problems involved and there are no
competing interests of other persons who were alive at the time of William Kolacy’s death which
would be unfairly frustrated by recognizing Amanda and Elyse as his heirs. Even in situations where
competing interests such as other children born during the lifetime of the decedent are in existence
at the time of his death, it might be possible to accommodate those interests with the interests of
after born children. For example, by statutory provision or decisional rule, payments made in the
course of routine estate administration before the advent of after born children could be treated as
vested and left undisturbed, while distributions made following the birth of after born children could
be made to both categories of children.
There has been some discussion in this case of the possible impact of the New Jersey Parentage Act,
N.J.S.A. 9:17-38 to –59. That act is very important in dealing with problems posed by fathers
seeking to avoid their responsibility for the support of children, and it also deals with a number of
other parentage issues. But most of its provisions are not even remotely relevant to the kind of
issues posed by our present case.
One provision of the Parentage Act which is facially somewhat relevant to our case is N.J.S.A. 9:17–
43a(1) which reads: “A man is presumed to be the biological father of a child if: He and the child’s
biological mother are or have been married to each other and the child is born during the marriage,
or within 300 days after the marriage is terminated by death, annulment or divorce.” This provision
might arguably be interpreted as creating the reverse presumption that a child born more than 300
days after the death of a man shall be presumed not to be the biological child of the deceased man. I
think that treating the cited provision as creating such a reverse presumption of non-parentage
would be somewhat strained because it is counterproductive to the purposes of the act, but even if
such a reverse presumption is read into the act, it is subject to being rebutted by clear and
convincing factual evidence. In our present case, there is clear and convincing evidence that Amanda
and Elyse are the biological children of William Kolacy.
This legislative treatment of certain issues arising out of reproductive technology is interesting and
sensible. But it does not deal expressly with posthumous conception, and, more importantly, it does
not deal with sperm contributed by the husband of the woman giving birth to a child. It is not
relevant to the facts of our present case.
The ability to cause children to come into existence long after the death of a parent is a recently
acquired ability for human society. There are probably wise and wonderful ways in which that ability
can be used. There are also undoubtedly some special problems that the exercise of that ability
might pose. There are, I think, ethical problems, social policy problems and legal problems which
are presented when a child is brought into existence under circumstances where a traditionally
normal parenting situation is not available. One would hope that a prospective parent thinking about
causing a child to come into existence after the death of a genetic and biological parent would think
very carefully about the potential consequences of doing that. The law should certainly be cautious
about encouraging parents to move precipitously in this area.
I accept as true Mariantonia Kolacy’s statement that her husband unequivocally expressed his desire
that she use his stored sperm after his death to bear his children. She did, in fact, use his sperm to
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bear his children. Some may question the wisdom of such a course of action, but one can certainly
understand why a loving and caring couple in the Kolacys’ position might choose it. Be all that as it
may, once a child has come into existence, she is a full-fledged human being and is entitled to all of
the love, respect, dignity and legal protection which that status requires. It seems to me that a
fundamental policy of the law should be to enhance and enlarge the rights of each human being to
the maximum extent possible, consistent with the duty not to intrude unfairly upon the interests of
other persons. Given that viewpoint, and given the facts of this case, including particularly the fact
that William Kolacy by his intentional conduct created the possibility of having long-delayed after
born children, I believe it is entirely fitting to recognize that Amanda and Elyse Kolacy are the legal
heirs of William Kolacy under the intestate laws of New Jersey.
Questions
1. Since death ends the marriage, a posthumously conceived child is technically a non-martial child.
As mentioned in the previous chapter, every jurisdiction has a statute that addresses the inheritance
rights of non-marital children. Should those statutes be applied to determine the inheritance rights
of posthumously conceived children? Why? Why not? Do you agree with the Khabbaz court’s
reasoning on the issue?
2. What are the pros and cons of amending the Social Security Act to make posthumously conceived
children eligible for benefits?
3. If the reasoning of the Woodward case was applied, what would be the outcome of the case?
4. In the Khabbaz case, the Court stated that “In order to remain alive or in existence after her father
passed away, Eng would necessarily have to have been ‘alive’ or ‘in existence’ at the time of his
death.” Is there a way to define survivor that would permit Eng to satisfy the definition? Is a being
in existence if the component parts leading to its creation already exist? Would Eng have a stronger
argument for existence if she was a pre-embryo at the time her father died?
5. Khabbaz clearly wanted to be the parent to his posthumously conceived children. Are his
reproductive rights violated by the court not fulfilling his desire to be legally recognized as the
parent of any children produced using his stored sperm?
As previously mentioned, most cases addressing posthumous reproduction involve children
conceived using artificial insemination. Moreover, all of the statutes regulating the inheritance rights
of posthumously conceived children are limited to children created utilizing artificial insemination.
The next case deals with the rights of a child conceived through the use of in vitro fertilization.

Finley v. Astrue, 270 S.W.3d 849 (Ark. 2008)
DANIELSON, J.
This case involves a question of law certified to this court by the United States District Court for the
Eastern District of Arkansas in accordance with Ark. Sup.Ct. R. 68 and accepted by this court on
June 28, 2007. See Finley v. Astrue, 370 Ark. 429, ----S.W.3d----(2007) (per curiam). The question
certified is the following:
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Does a child, who was created as an embryo through in vitro fertilization during his parents'
marriage, but implanted into his mother's womb after the death of his father, inherit from the father
under Arkansas intestacy law as a surviving child?
We conclude that the answer to this question is no.
According to the District Court's order, the certified question arises from an appeal by Amy Finley,
from the final decision of the Commissioner of the Social Security Administration, Michael Astrue
(the Commissioner), which denied her claim for “child's insurance benefits” under 42 U.S.C. 42
U.S.C. § 402(d). U.S.C.62
The District Court's order reflects the following facts. On October 6, 1990, Ms. Finley and Wade W.
Finley, Jr., were married. During the course of the marriage, the Finleys pursued fertility treatments
at the University of Arkansas for Medical Sciences (UAMS), and, ultimately, participated in UAMS's
In Vitro Fertilization and Embryo Transfer (IVF/ET) Program.63 In June of 2001, doctors produced
ten embryos using Ms. Finley's eggs and Mr. Finley's sperm. Two of the embryos were implanted
into Ms. Finley's uterus and four embryos were frozen for preservation. 64 Ms. Finely later suffered a
miscarriage of both of the implanted embryos.
On July 19, 2001, Mr. Finely died intestate while domiciled here in Arkansas. A little less than one
year later, on June 26, 2002, Ms. Finley had two of the previously frozen embryos thawed and
transferred into her uterus, resulting in a single pregnancy. On February 14, 2003, prior to the child's
birth, the Lonoke County Circuit Court entered an order providing that upon the baby's delivery, the
State Registrar of the Arkansas Department of Health, Division of Vital Records, shall enter and
state upon the certificate of birth that Wade W. Finley, Jr., now deceased, is the father of [W.F.];
[a]nd that, thereafter, all State and Federal Agencies, of the United States of America, shall uphold
the findings of this Court's conclusion of paternity-in[Plaintiff] the mother and Wade W. Finley, Jr.
the father-for any and all lawful purposes; and, that [W.F.] is the legitimate child of [Plaintiff] and
Wade W. Finely, Jr. for any and all lawful purposes.
The child was born on March 4, 2003, and on April 11, 2003, Ms. Finley filed a claim for mother's
insurance benefits and the child's claim for child's insurance benefits, based on the earnings record
62 The Commissioner's order also denied Ms. Finley's claim for “mother's insurance benefits” under 42 U.S.C. § 402(g).
63 In vitro fertilization is described as follows: After the woman has taken injectable ovulation-inducing medications ...,

multiple oocytes are retrieved from the woman's ovaries by a minor surgical procedure. The oocytes are placed in a petri
dish with her male partner's sperm (in vitro) and placed in an incubator for fertilization to occur. The embryos are
allowed to grow for a period of three to five days before they are placed back into the woman's uterus.
7-289 Attorneys' Textbook of Medicine P.289.65 (3d ed.2007). It differs entirely from artificial insemination: Intrauterine
insemination, also known as artificial insemination, refers to the placement of sperm into the uterine cavity. Intrauterine
insemination may be performed at the time of ovulation in the woman's normal menstrual cycle, or with the use of
medications that induce ovulation. In most cases, the female partner takes fertility medications in advance of the
procedure. The man must produce sperm at the time the woman is ovulating; the sperm (after undergoing certain
“washing” procedures) are then inserted into the woman's uterine cavity through a long, thin catheter.17-289 Attorney's
Textbook of Medicine P.289.81 (3d ed.2007).The District Court's order further observes that in participating in the IVF/ET
program at UAMS, the Finleys executed a consent form. That form is not before us; however, we note that the Worker's
Compensation Commission awarded benefits to the child based, at least in part, on the consent form's language. See
Finley v. Farm Cat, Inc., WCC No. F108515 (Dec. 27, 2006).
64 The District Court's order notes that the remaining four embryos were not preserved.

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of Mr. Finley. The claims were denied at the initial and reconsideration levels; however, an
Administrative Law Judge (ALJ) issued a decision on June 16, 2006, awarding both mother's and
child's insurance benefits.
On December 14, 2006, the Appeals Council reversed the ALJ's decision, finding that Ms. Finley's
claims were without merit. Ms. Finley then filed her complaint with the District Court on October
13, 2006, appealing the final decision of the Commissioner. The parties filed a joint motion to certify
the instant question of law to this court and to stay briefing before the District Court. The District
Court granted the motion, certified the instant question to this court, and we accepted certification,
as already stated.
In the briefs before us, Ms. Finley argues that her child was “conceived” at the time her egg was
fertilized by the father's sperm. She contends that there is no statutory prohibition in Arkansas
preventing a natural child who was conceived by in vitro fertilization from inheriting from his father.
She avers that the General Assembly was aware of in vitro fertilization procedures in light of the fact
that it mandated all accident and health insurance companies include in vitro fertilization as a
covered expense in Ark. Code Ann. § 23-85-137(a) (Repl. 2004) and was aware of assisted
reproductive technologies by its reference to artificial insemination in Ark. Code Ann. § 28-9-209(c)
(Repl.2004). She urges that based upon the medical definitions of “conception,” the child born of
the Finleys' union was not posthumously conceived and that as a matter of public policy, all
children's rights should be protected, including their rights to property and inheritance.
The Commissioner responds that Arkansas intestacy law does not provide inheritance rights from a
biological father to a child who was created as an embryo through in vitro fertilization during his
parents' marriage, but implanted into his mother's womb after the death of the father. He argues
that the Finleys' child was neither born nor conceived during the Finleys' marriage, which ended
upon Mr. Finley's death. The Commissioner maintains that the logical interpretation of the term
“conception” or “conceived,” as used in Arkansas's intestacy provisions, is to mean the onset of
pregnancy, or the successful implantation of an embryo in the womb. He asserts that the General
Assembly has not amended the intestate succession statutes to expand the definition of conception
to include the creation of embryos during the in vitro fertilization process and that absent a statutory
amendment to encompass an IVF-created embryo, this court should conclude that the General
Assembly did not intend for such embryos to be considered “conceived” within the terms of the
intestacy statutes. He further points out that the General Assembly, and not the courts, determines
public policy. Finally, the Commissioner submits, given the fact that inheritance laws require finality,
it is unlikely that the legislature defined the term “conception” to include a medical procedure that
could result in a biological birth many years after the father's death. Ms. Finley replies that the
General Assembly has been well aware of assisted reproduction for a number of years and, had it
chosen to do so, it could have enacted legislation to prevent such an inheritance.
A review of the benefits being sought and the orders leading to the certification of the instant
question was set forth in the District Court's certification order. It provides that [u]nder the Social
Security Act, a child is entitled to child's insurance benefits if he is the child of an individual who
dies while insured, if the child was dependent upon the insured at the time of the insured's death. See
42 U.S.C. § 402(d). “Child” means “the child or legally adopted child of an individual[.]”42 U.S.C. §
402(c). In determining whether a claimant is the “child” of a deceased insured, the Commissioner is
instructed to “apply such law as would be applied in determining the devolution of intestate personal
property ... by the courts of the State in which [the insured] was domiciled at the time of his
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death[.]”42 U.S.C. § 416 (h)(2)(A). Social Security regulations provide further guidance on
determining “child” status, including that a claimant be the insured's “natural child,” meaning that
the claimant “could inherit the insured's personal property as his or her natural child under State
inheritance law[s].” See 20 C.F.R. §§ 404.354 and 404.355(a)(1). In deciding whether the claimant
has “inheritance rights as the natural child of the insured[,]” the Commissioner uses “the law on
inheritance rights that the State courts would use to decide whether you could inherit a child's share
of the insured's personal property if the insured were to die without leaving a will.” See 20 C.F.R. §
404.355(b)(1).
During the administrative proceedings in this case, Plaintiff claimed that there were no Arkansas
statutes specifically addressing the inheritance rights of a child conceived through in vitro
fertilization, but that, pursuant to Ark. Code Ann. § 28-9-209(c), W .F. was “conceived” as a
“zygote” prior to his father's death, while his parents were married. Thus, she argued that W.F. had
inheritance rights under that statute. The Commissioner acknowledged the lack of a “clear
definition” of “conception” under Arkansas state law, but looked to “the generally accepted
definition of the term in the medical community” and concluded that “conception” occurred when
“the embryo was implanted in [Plaintiff's] uterus after the wage earner died.” The Commissioner
also rejected Plaintiff's reliance on both Ark. Code Ann. § 11-9-507, a worker's compensation statute
which does not “govern inheritance issues,” and the Lonoke Circuit Court Order, which was “not
consistent with the law as enunciated by the highest court in the State of Arkansas.”
According to the Commissioner's findings: (1) W.F. was the biological child of Wade W. Finley, Jr.
who was not married to Plaintiff at the time that W.F. was conceived or born; and (2) W.F. did not
have “inheritance rights in [Wade W. Finley, Jr.'s] estate” and thus did “not have status as the child
of the wage earner pursuant to [42 U.S.C. § 416(h)(2)(A)].” Because Plaintiff's claim for “mother's
insurance benefits” was contingent on having “an entitled child of the wage earner in her care,” the
Commissioner found that this claim also lacked merit. (Internal footnotes and citations to transcript
omitted.)
Having been presented with the instant question, we turn to our statutes on intestate succession.
Title 28, Chapter 9 of the Arkansas Code Annotated sets forth Arkansas's law on intestate
succession, entitled the “Arkansas Inheritance Code of 1969.” Arkansas Code Annotated § 28-9203(a)(Repl. 2004) provides that “[a]ny part of the estate of a decedent not effectively disposed of by
his or her will shall pass to his or her heirs as prescribed in the following sections.” Ark. Code Ann.
§ 28-9-203(a) (Repl. 2004).
The instant certified question presents a posthumous child.65 In order to inherit as a posthumous
heir under Arkansas law, the child must not only have been born after the decedent's death, but
must also have been conceived before the decedent's death.
The basic rule of statutory construction is to give effect to the intent of the legislature. See McMickle
v. Griffin, 369 Ark. 318, ---S.W.3d---(2007).Where the language of a statute is plain and unambiguous,
we determine legislative intent from the ordinary meaning of the language used. See id. In
considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary
and usually accepted meaning in common language. See id. We construe the statute so that no word
65 While our statutory code does not define this term, Black's Law Dictionary defines the term “posthumous child” as: “A

child born after a parent's death.” Black’s Law Dictionary 255 (8th ed.2004).

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is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute,
if possible. See id. Furthermore, we are very hesitant to interpret a legislative act in a manner contrary
to its express language, unless it is clear that a drafting error or omission has circumvented legislative
intent. See Arkansas Beverage Retailers Ass’n, Inc. v. Moore, 369 Ark. 498, ---S.W.3d---(2007).
It is clear from the statute that in order to inherit through intestate succession as a posthumous
descendant, the child must have been conceived before the decedent's death. However, the statutory
scheme fails to define the term “conceived.” While we could define that term, we find there is no
need to do so, as we can definitively say that the General Assembly, in enacting Act 303 of 1969, §
12, now codified at Ark. Code Ann. § 28-9-210, did not intend for the statute to permit a child,
created through in vitro fertilization and implanted after the father's death, to inherit under intestate
succession. Not only does the instant statute fail to specifically address such a scenario, but it was
enacted in 1969, which was well before the technology of in vitro fertilization was developed. See
Janet L. Dolgin, Surrounding Embryos: Biology, Ideology, & Politics, 16 Health Matrix: J.L. & Med. 27
(2006) (observing that the first birth resulting from in vitro fertilization was in 1978).
Both parties discuss Ark. Code Ann. § 28-9-209 (c)(Repl. 2004), which provides: (c) Any child
conceived following artificial insemination of a married woman with the consent of her husband
shall be treated as their child for all purposes of intestate succession. Consent of the husband is
presumed unless the contrary is shown by clear and convincing evidence. Ark. Code Ann. § 28-9209(c). That statute is inapposite for two reasons. First and foremost, the statute goes to the
legitimacy of a child, and, second, it specifically references artificial insemination, not in vitro
fertilization are two completely different procedures.
While the parties would have us define the term “conceive,” we decline to do so in the instant case.
Our role is not to create the law, but to interpret the law and to give effect to the legislature's intent.
See, e.g., Miller v. Tatum, 170 Ark. 152, 279 S.W. 1002 (1926); Williams v. Buchanan, 86 Ark. 259, 110
S.W. 1024 (1908).In vitro fertilization and other methods of assisted reproduction are new
technologies that have created new legal issues not addressed by already-existing law. See, e.g., GillettNetting v. Barnhart, supra (observing that “[d]eveloping reproductive technology has outpaced federal
and state laws, which currently do not address directly the legal issues created by posthumous
conception”); Woodward v. Commissioner of Social Security, supra (observing that “with the act of
procreation now separated from coitus, posthumous reproduction can occur under a variety of
conditions that may conflict with the purposes of the intestacy law and implicate other firmly
established State and individual interests”). Were we to define the term “conceive,” we would be
making a determination that would implicate many public policy concerns, including, but certainly
not limited to, the finality of estates. That is not our role. The determination of public policy lies
almost exclusively with the legislature, and we will not interfere with that determination in the
absence of palpable errors. See Jordan v. Atlantic Cas. Ins. Co., 344 Ark. 81, 40 S.W.3d 254 (2001).With
this is mind, we strongly encourage the General Assembly to revisit the intestacy succession statutes
to address the issues involved in the instant case and those that have not but will likely evolve.
For the foregoing reasons, we answer the certified question in the negative.

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Questions
1. Given the reasoning in the Finley case, the court seemed unconcerned that the assisted
reproductive technology used was in vitro fertilization. Should children conceived using frozen
embryos be treated different from the ones using the dead man’s sperm? The court in the Kievernagel
case indicated that the outcome of the case might have been different had it involved embryos
instead of sperm.
2. If the posthumously conceived child is allowed to inherit what steps should be taken to protect
the deceased man’s existing heirs?
6.2.2

The Right to Inheritance Through Fathers

In re Martin, 841 N.Y.S.2d 207 (N.Y. Sur. Ct. 2007)
ROTH, J.
This uncontested application for advice and direction in connection with seven trust agreements
executed on December 31, 1969, by Martin B. (the Grantor) illustrates one of the new challenges
that the law of trusts must address as a result of advances in biotechnology. Specifically, the novel
question posed is whether, for these instruments, the terms “issue” and “descendants” include
children conceived by means of in vitro fertilization with the cryopreserved semen of the Grantor's
son who had died several years prior to such conception.
The relevant facts are briefly stated. Grantor (who was a life income beneficiary of the trusts) died
on July 9, 2001, survived by his wife Abigail and their son Lindsay (who has two adult children), but
predeceased by his son James, who died of Hodgkins Lymphoma on January 13, 2001. James,
however, after learning of his illness, deposited a sample of his semen at a laboratory with
instructions that it be cryopreserved and that, in the event of his death, it be held subject to the
directions of his wife Nancy. Although at his death James had no children, three years later Nancy
underwent in vitro fertilization with his cryopreserved semen and gave birth on October 15, 2004, to
a boy (James Mitchell). Almost two years later, on August 14, 2006, after using the same procedure,
she gave birth to another boy (Warren). It is undisputed that these infants, although conceived after
the death of James, are the products of his semen.
Although the trust instruments addressed in this proceeding are not entirely identical, for present
purposes the differences among them are in all but one respect immaterial. The only relevant
difference is that one is expressly governed by the law of New York while the others are governed
by the law of the District of Columbia. As a practical matter, however, such difference is not
material since neither jurisdiction provides any statutory authority or judicial comment on the
question before the court.
All seven instruments give the trustees discretion to sprinkle principal to, and among, Grantor's
“issue” during Abigail's life. The instruments also provide that at Abigail's death the principal is to
be distributed as she directs under her special testamentary power to appoint to Grantor's “issue” or
“descendants” (or to certain other “eligible” appointees). In the absence of such exercise, the
principal is to be distributed to or for the benefit of “issue” surviving at the time of such disposition
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(James's issue, in the case of certain trusts, and Grantor's issue, in the case of certain other trusts).
The trustees have brought this proceeding because under such instruments they are authorized to
sprinkle principal to decedent's “issue” and “descendants” and thus need to know whether James's
children qualify as members of such classes.
The question thus raised is whether the two infant boys are “descendants” and “issue” for purposes
of such provisions although they were conceived several years after the death of James.
Although the particular question presented here arises from recent scientific advances in
biotechnology, this is not the first time that the Surrogate's Court has been called upon to consider
an issue involving a child conceived through artificial means.
Over three decades ago, Surrogate Nathan R. Sobel addressed one of the earliest legal problems
created by the use of artificial insemination as a technique for human reproduction (Matter of
Anonymous, 74 Misc.2d 99, 345 N.Y.S.2d 430). In that case, the petitioner sought to adopt a child
that his wife had conceived, during her prior marriage, through artificial insemination with the sperm
of a third-party donor (heterologous insemination). The question before Surrogate Sobel was
whether the former husband had standing to object to the adoption. In the course of his analysis,
the learned Surrogate predicted that artificial insemination would become increasingly common and
would inevitably also complicate the legal landscape in areas other than adoption. Indeed, he
specifically forecast that, as a result of such technological advances, “[legal] issues ... will multiply [in
relation to matters such as] intestate succession and will construction” (id., at 100, 345 N.Y.S.2d
430). Surrogate Sobel noted, however, that there was at that point a dearth of statutory or decisional
guidance on questions such as the one before him.
The following year New York enacted Domestic Relations Law 73, which recognized the status of a
child born to a married couple as a result of heterologous artificial insemination provided that both
spouses consented in writing to the procedure, to be performed by a physician. Such statute
reflected the evolution of the State's public policy toward eliminating the distinction between marital
and non-marital children in determining family rights. Thus, where a husband executes a written
consent (or even in some instances where he has expressed oral consent) to artificial insemination
the child is treated as his natural child for all purposes despite the absence of a biological connection
between the two (see e.g. Scheinkman, Practice Commentaries, McKinney’s Con. Laws of N.Y., Book
14, Domestic Relations Law 73, at 309-10).
Surrogate Sobel's predictions in Anonymous proved to be prophetic. Some thirty years later, the novel
issues generated by scientific developments in the area of assisted human reproduction are
perplexing legislators and legal scholars (citations omitted).
Compounding the problem, as the authors of the foregoing studies have observed, decisions and
enactments from earlier times-when human reproduction was in all cases a natural and uniform
process-do not fit the needs of this more complex era. These new issues, however, are being
discussed and in some jurisdictions have been the subject of legislation or judicial decisions. But, as
will be discussed below, neither New York nor the District of Columbia, the governing jurisdictions,
has a statute directly considering the rights of post-conceived children. In this case legislative action
has not kept pace with the progress of science. In the absence of binding authority, courts must turn
to less immediate sources for a reflection of the public's evolving attitude toward assisted
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reproduction-including statutes in other jurisdictions, model codes, scholarly discussions and
Restatements of the law.
We turn first to the laws of the governing jurisdictions. At present, the right of a posthumous child
to inherit (EPTL 4-1.1[c] [in intestacy] ) or as an after-born child under a will (EPTL 5-3.2 [under a
will] ) is limited to a child conceived during the decedent's lifetime. Indeed, a recent amendment to
section 5-3.2 (effective July 26, 2006) was specifically intended to make it clear that a post-conceived
child is excluded from sharing in the parent's estate as an “after-born” (absent some provision in the
will to the contrary, EPTL 5-3.2 [b]). Such limitation was intended to ensure certainty in identifying
persons interested in an estate and finality in its distribution (see Sponsor's Mem., Bill Jacket L. 2006,
ch. 249). It, however, is by its terms applicable only to wills and to “after-borns” who are children of
the testators themselves and not children of third parties (see Turano, Practice Commentaries,
McKinney's Cons. Laws of N.Y., Book 17B, EPTL 5-3.2, at 275). Moreover, the concerns related to
winding up a decedent's estate differ from those related to identifying whether a class disposition to
a grantor's issue includes a child conceived after the father's death but before the disposition became
effective.
With respect to future interests, both the District of Columbia and New York have statutes which
ostensibly bear upon the status of a post-conceived child. In the D.C. Code, the one statutory
reference to posthumous children appears in section 704 of title 42 which in relevant part provides
that, “[w]here a future estate shall be limited to heirs, or issue, or children, posthumous children
shall be entitled to take in the same manner as if living at the death of their parent....” New York has
a very similar statute, which provides in relevant part that, “[w]here a future estate is limited to
children, distributees, heirs or issue, posthumous children are entitled to take in the same manner as
if living at the death of their ancestors” (EPTL 6-5.7). In addition, EPTL 2-1.3(2) provides that a
posthumous child may share as a member of a class if such child was conceived before the
disposition became effective.
Each of the above statutes read literally would allow post-conceived children-who are indisputably
“posthumous”-to claim benefits as biological offspring. But such statutes were enacted long before
anyone anticipated that children could be conceived after the death of the biological parent. In other
words, the respective legislatures presumably contemplated that such provisions would apply only to
children en ventre sa mere (see e.g. Turano, Practice Commentaries, McKinney's Cons. Laws of N.Y.,
Book 17B, EPTL 6-5.7, at 176).
We turn now to the jurisdictions in which the inheritance rights of a post-conceived child have been
directly addressed by the legislatures, namely, Louisiana, California and Florida and to the seven
States that have adopted, in part, the Uniform Parentage Act (2000, as amended in 2002)(UPA,
discussed below), namely, Delaware, North Dakota, Oklahoma, Texas, Utah, Washington and
Wyoming. Although we are concerned here with a male donor, the legislation also covers the use of
a woman's eggs (UPA 707).
In Louisiana, a post-conceived child may inherit from his or her father if the father consented in
writing to his wife's use of his semen and the child was born within three years of the father's death.
But it is noted parenthetically that the statute also allows a person adversely affected to challenge
paternity within one year of such child's birth (LA Civil Code 9:391.1).

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In order for a post-conceived child to inherit in the State of California, the parent must have
consented in writing to the posthumous use of genetic material and designated a person to control
its use. Such designee must be given written notice of the designation and the child must have been
conceived within two years of decedent's death (CA Probate Code 249.5).
Florida, by contrast, requires a written agreement by the couple and the treating physician for the
disposition of their eggs or semen in the event of divorce or death. A post-conceived child may
inherit only if the parent explicitly provided for such child under his or her will (FL Stat. Ann.
742.17)
Under the UPA, a man who provides semen, or consents to assisted reproduction by a woman as
provided under section 704, with the intent to become a father is the parent of the child who is born
as a result (UPA § 703). Under section 704 of the UPA, both the man and the woman must consent
in writing to the recognition of the man as the father. The UPA has also addressed the situation
where the potential parent dies before the act of assisted reproduction has been performed. In such
situation, decedent is the parent of the child if decedent agreed to the use of assisted reproduction
after his death (UPA 707).
On a related question, the courts of three States have held that a post-conceived child is entitled to
benefits under the Social Security Act: Massachusetts (Woodward v. Commissioner of Soc. Sec., 435 Mas.
536, 760 N.E.2d 257 [2002]). New Jersey (Matter of Kolacy, 332 N.J.Super. 593, 753 A.2d 1257
(2000)) (which had enacted an earlier version of the UPA), and Arizona (Gillett-Netting v. Barnhart,
371 F.3d 593). All three courts concluded that post-conceived children qualified for such benefits.
As can clearly be seen from all the above, the legislatures and the courts have tried to balance
competing interests. On the one hand, certainty and finality are critical to the public interests in the
orderly administration of estates. On the other hand, the human desire to have children, albeit by
biotechnology, deserves respect, as do the rights of the children born as a result of such scientific
advances. To achieve such balance, the statutes, for example, require written consent to the use of
genetic material after death and establish a cut-off date by which the child must be conceived. It is
noted parenthetically that in this regard an affidavit has been submitted here stating that all of
James's cryopreserved sperm has been destroyed, thereby closing the class of his children.
[1]Finally, we turn to the instruments presently before the court. Although it cannot be said that in
1969 the Grantor contemplated that his “issue” or “descendants” would include children who were
conceived after his son's death, the absence of specific intent should not necessarily preclude a
determination that such children are members of the class of issue. Indeed, it is noted that the
Restatement of Property suggests that “[u]nless the language or circumstances indicate that the
transferor had a different intention, a child of assisted reproduction [be] treated for class-gift
purposes as a child of a person who consented to function as a parent to the child and who
functioned in that capacity or was prevented from doing so by an event such as death or incapacity”
(Restatement [Third] of Property [Wills and Other Donative Transfers] 14.8 [Tentative Draft No. 4
204] ).
The rationale of the Restatement, Matter of Anonymous and section 73 of the Domestic Relations Law
should be applied here, namely, if an individual considers a child to be his or her own, society
through its laws should do so as well. It is noted that a similar rationale was endorsed by our State's
highest court with respect to the beneficial interests of adopted children (Matter of Park, 15 N.Y.2d
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413, 260 N.Y.S.2d 169, 207 N.E.2d 859). Accordingly, in the instant case, these post-conceived
infants should be treated as part of their father's family for all purposes. Simply put, where a
governing instrument is silent, children born of this new biotechnology with the consent of their
parent are entitled to the same rights “for all purposes as those of a natural child” (id., at 418, 260
N.Y.S.2d 169, 207 N.E.2d 859).
Although James probably assumed that any children born as a result of the use of his preserved
semen would share in his family's trusts, his intention is not controlling here. For purposes of
determining the beneficiaries of these trusts, the controlling factor is the Grantor's intent as gleaned
from a reading of the trust agreements (citations omitted). Such instruments provide that, upon the
death of the Grantor's wife, the trust fund would benefit his sons and their families equally. In view
of such overall dispositive scheme, a sympathetic reading of these instruments warrants the
conclusion that the Grantor intended all members of his bloodline to receive their share.
Based upon all of the foregoing, it is concluded that James Mitchell and Warren are “issue” and
“descendants” for all purposes of these trusts.
As can be seen from all of the above, there is a need for comprehensive legislation to resolve the
issues raised by advances in biotechnology. Accordingly, copies of this decision are being sent to the
respective Chairs of the Judiciary Committees of the New York State Senate and Assembly.
Decree signed.
Notes and Questions
1. Do you think that the decision in Martin carried out the intent of the settlor of the trust? Should it
be more difficult for posthumously conceived children to inherit through their fathers?
2. The court ended the decision acknowledging the need for comprehensive legislation to resolve
issues raised by the use of new biotechnology. There is nothing to indicate that the New York
legislature has heeded the call with regards to posthumously conceived children. The states that have
attempted to address the issue are set forth below.
Statutes Addressing the Inheritance Rights of Posthumously Conceived Children
Uniform Status of Children of Assisted Conception Act § 4 (b)
An individual who dies before implantation of an embryo, or before a child is conceived other than
through sexual intercourse, using the individual’s egg or sperm, is not a parent of the resulting
child.66
Uniform Parentage Act § 707
If an individual who consented in a record to be a parent by assisted reproduction dies before
placement of eggs, sperm, or embryos, the deceased individual is not a parent of the resulting child
66 In 2000, the language of this act was integrated into the UPA.

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unless the deceased individual consented in a record that if assisted reproduction were to occur after
death, the deceased individual would be a parent of the child.67
Questions
1. UPA § 707 requires the individual to consent to the posthumous use of his or her gametes by
submitting a written record. The statute does not define “record”. What type of writing should be
necessary to satisfy the writing requirement? In light of the purpose of the writing requirement, what
components should the writing contain?
2. What are the advantages and disadvantages of the UPA’s approach?
3. If the UPA had been applied in the Woodward case would the outcome of the case have been
different?
Baldwin's Ohio Revised Code Annotated
§ 2105.14 Posthumous child to inherit
Descendants of an intestate begotten before his death, but born thereafter, in all cases will inherit as
if born in the lifetime of the intestate and surviving him; but in no other case can a person inherit
unless living at the time of the death of the intestate.68
West's Louisiana Statutes Annotated
§ 391.1. Child conceived after death of parent
A. Notwithstanding the provisions of any law to the contrary, any child conceived after the death of
a decedent, who specifically authorized in writing his surviving spouse to use his gametes, shall be
deemed the child of such decedent with all rights, including the capacity to inherit from the
decedent, as the child would have had if the child had been in existence at the time of the death of
the deceased parent, provided the child was born to the surviving spouse, using the gametes of the
decedent, within three years of the death of the decedent.
West's Annotated California Code
§ 249.5. Posthumous conception; child of decedent deemed born in decedent's lifetime;
conditions
For purposes of determining rights to property to be distributed upon the death of a decedent, a
child of the decedent conceived and born after the death of the decedent shall be deemed to have
been born in the lifetime of the decedent, and after the execution of all of the decedent's
testamentary instruments, if the child or his or her representative proves by clear and convincing
evidence that all of the following conditions are satisfied:

67 Some version of the UPA has been adopted by the following states: Delaware, North Dakota, Texas, Utah,

Washington and Wyoming.
68 Susan N. Gary, Posthumously Conceived Heirs: Where the Law Stands and What to Do About It Now, 19 Apr. Prob. & Prop.
32, 34-35 (March/April 2005)(stating “But, Ohio enacted this statute in 1953, so it is unlikely that the legislature
considered the issue of children conceived after the decedent’s death.”).

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(a) The decedent, in writing, specifies that his or her genetic material shall be used for the
posthumous conception of a child of the decedent, subject to the following:
(1) The specification shall be signed by the decedent and dated.
(2) The specification may be revoked or amended only by a writing, signed by the decedent and
dated.
(3) A person is designated by the decedent to control the use of the genetic material.
(b) The person designated by the decedent to control the use of the genetic material has given
written notice by certified mail, return receipt requested, that the decedent's genetic material was
available for the purpose of posthumous conception. The notice shall have been given to a person
who has the power to control the distribution of either the decedent's property or death benefits
payable by reason of the decedent's death, within four months of the date of issuance of a certificate
of the decedent's death or entry of a judgment determining the fact of the decedent's death,
whichever event occurs first.
(c) The child was in utero using the decedent's genetic material and was in utero within two years of
the date of issuance of a certificate of the decedent's death or entry of a judgment determining the
fact of the decedent's death, whichever event occurs first. This subdivision does not apply to a child
who shares all of his or her nuclear genes with the person donating the implanted nucleus as a result
of the application of somatic nuclear transfer technology commonly known as human cloning.
West's Florida Statutes Annotated
§ 742.17. Disposition of eggs, sperm, or preembryos; rights of inheritance
A commissioning couple and the treating physician shall enter into a written agreement that
provides for the disposition of the commissioning couple's eggs, sperm, and preembryos in the
event of a divorce, the death of a spouse, or any other unforeseen circumstance.
(4) A child conceived from the eggs or sperm of a person or persons who died before the transfer of
their eggs, sperm, or preembryos to a woman's body shall not be eligible for a claim against the
decedent's estate unless the child has been provided for by the decedent's will.
West's Annotated Code of Virginia
§ 20-158. Parentage of child resulting from assisted conception
B. Death of spouse.--Any child resulting from the insemination of a wife's ovum using her
husband's sperm, with his consent, is the child of the husband and wife notwithstanding that, during
the ten-month period immediately preceding the birth, either party died.
However, any person who dies before in utero implantation of an embryo resulting from the union
of his sperm or her ovum with another gamete, whether or not the other gamete is that of the
person's spouse, is not the parent of any resulting child unless (i) implantation occurs before notice
of the death can reasonably be communicated to the physician performing the procedure or (ii) the
person consents to be a parent in writing executed before the implantation.
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Questions
1. Which one of the above approaches to the issue of posthumous reproduction does the most to
protect the interests of the children, the decedent and the state?
2. Is the three-year time limitation included in the Louisiana statute reasonable?
3. The Louisiana statute only applies to married couples. What are the pros and cons of restricting
posthumous reproduction to married persons? Is this restriction going to disadvantage the children
conceived in long-term relationships? ill this statute survive a constitutional challenge? Should it be
void because of public policy considerations?
4. Is the four-month notice requirement included in the California statute necessary? Is it
reasonable?
5. The California statute contains an anti-cloning provision. What are the pros and cons of
prohibiting cloning? How is cloning related to artificial insemination in a legal context?
6. Under the Florida statute, the posthumously conceived child is only protected if his father
provides for the child in his will. Thus, if a man dies intestate, his posthumously conceived child
does not have the right to inherit. In every state and the District of Columbia, if a man dies intestate,
preference is given to his children. As a result, children who exist at the time of the man’s death
automatically get the right to inherit. Consequently, in Florida, posthumously conceived children are
treated differently from other classes of children. This seems to go against the legislative and judicial
efforts to treat all children equally. What are the pros and cons of Florida’s approach? Would the
statute survive a constitutional challenge?
7. Explain the Virginia statute’s approach.
8. The use of assisted reproductive technology to create children posthumously has become a global
practice. As a consequence, the French Parliament prohibited posthumous reproduction.69 Western
Australia adopted The Human Reproductive Technology Act of 1991 to deal with the issue of
posthumous reproduction.70 Postmortem sperm retrieval and posthumous reproduction is statutorily
prohibited in Germany, Sweden, and the Australian states of Victoria and Western Australia.71
Hungarian law also does not permit the use of the gametes of dead persons for posthumous
reproduction.72 In order for posthumous reproduction to take place in the United Kingdom, the
gamete donor must give written consent.73 Likewise, legal regulations enacted by the Canadian
government ban posthumous reproduction without the written informed consent of the sperm
See Art. L. 152.2 of the Code de la Sante’ Publique, cited in Nicole Zwart-Hendrix, Chilling Aspects of Procreation, 21 Med.
& L. 567, 569 (2002).
70
See Reproductive Technology Council, The Human Reproductive Technology Act of 1991.
71
A provision of Victoria’s Infertility Treatment Act of 1995 makes it a criminal offense to use the gametes or embryos
of dead people. §43 Infertility Treatment Act of 1995.
72
Law No. 154, 1997, § 166, article No. 3.
73
Human Fertilization and Embryology Act 2008 §39, Schedule 3 (the consent provisions); See also The Queen (on the
application of IM, MM) v. Human Fertilisation and Embryology Authority, 2015 WL 3630368 (June 15, 2015).
69

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donor.74 Posthumous reproduction has conditional acceptance in the Netherlands and Greece as
long as written consent is acquired before the sperm donor dies.75
Problems
1. Juan and Isabella were married for ten years. Juan was diagnosed with stomach cancer and had to
undergo chemotherapy. Dr. Chin informed the couple that the chemotherapy might render Juan
infertile. Juan and Isabella really wanted to have children. Therefore, Juan had his sperm frozen prior
to submitting to treatment. As a part of that process, Juan signed a form stating that, in the event of
his death, he wanted Isabella to use his frozen sperm to conceive his child. In addition, Juan told his
friends that Isabella was the love of his life, and so it was important for a little piece of them both to
exist on the earth. Unfortunately, Juan passed away in January of 2011. In June of 2012, Isabella
decided to have a child conceived using Juan’s sperm. Isabella was insecure about her looks. She told
her best friend, Debbie, “There is no way I’m passing on this face.” Debbie agreed to donate some
of her eggs to Isabella, so Isabella could have the beautiful child that she wanted. After the hospital
released Juan’s sperm to Isabella, Isabella used the sperm to fertilize Debbie’s egg. Isabella did not
want to mess up her figure, so she hired a surrogate, Hillary, to carry the child for her. On February
18, 2013, Hillary gave birth to a little boy named Juan, Jr. Will Juan, Jr. be legally recognized as
Juan’s child? What ethical issues may arise out of these facts?
2. Patrick signed a document giving his wife, Bonnie, permission to conceive a child using his sperm
in the event that he died. Patrick wanted to make sure that Bonnie had something by which to
remember him. Patrick was in a car accident. As a result, Patrick suffered brain damage and is in a
vegetative state. Patrick is breathing on his own, but has very little brain activity. Doctors informed
Bonnie that Patrick would never recover from his condition. However, doctors confirmed that
Patrick could remain in a vegetative state for years. Bonnie presented the written form Patrick signed
and requested that the doctors extract Patrick’s sperm, so that she could use it to conceive his child.
Bonnie does not want to wait until Patrick dies to get the sperm because her biological clock is
ticking. The head of the clinic has consulted you for advice. In light of the above-listed statutes, how
would you respond?
3. Mitch told his wife Lisa that, if they did not conceive a child prior to his death, she could have his
sperm extracted and use it to conceive a child posthumously. Without Mitch’s knowledge, Lisa
recorded the conversation. A few months later, Lisa and Mitch had a fight over money. Mitch
refused to destroy the pre-nuptial agreement that limited Lisa’s interest in his assets to 5% upon his
death or if they got a divorce. According to the pre-nuptial agreement, any children of the marriage
would receive 25% of Mitch’s assets. On June 10, 2014, Mitch filed for a divorce. Two days later,
Mitch was killed in a car accident. Lisa played the tape recorded conversation for the doctor and
demanded the removal of Mitch’s sperm. The doctor complied with Lisa’s request and she used
Assisted Human Reproduction (Section 8 Consent) Regulations SOR/2007-137,
Usha Ahluwalia and Maia Arora, Posthumous Reproduction and Its Legal Perspective, 2 International Journal of Fertility and
Fetal Medicine, 9, 12 (January 2011) (citing Art. 7 Embryos Bill); Mavroforou, A., Koumantakis, E., Mavrophoros, D.,
and Michalodimitrakis, E., Medically assisted human reproduction: the Greek view, 26 Med. Law 339, 341 (2007)(citing Medically
Assisted Human Reproduction Act 3089/02 which states “Artificial insemination carried out after the death of the
husband or the woman's partner, is allowed only by judicial permission and only under the following circumstances: a.
The husband or the permanent partner of the woman suffers from a disease, which endangers his life or fertility b. The
husband or the woman's partner has already given his consent before a notary for posthumous artificial insemination.”).
74
75

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Mitch’s sperm to become pregnant. After Mitch’s daughter, Michelle, was born, Lisa petitioned the
estate for her 5% and for Michelle’s 25%. The estate refused to honor Lisa’s request, so she filed a
court action. What probable result?
4. Larry was rushed to the hospital after he suffered a massive heart attack. Larry did not survive the
ordeal. Larry’s girlfriend, Tessa, showed the doctors at the hospital a letter Larry had written stating
his intent to divorce his wife and to marry Tessa. The letter also stated that Larry wanted to conceive
a child with Tessa. The hospital extracted Larry’s sperm and released it to Tessa. Tessa conceived a
child using Larry’s sperm. Larry died intestate. According to the intestacy statute, if Larry died with
no surviving children, his surviving spouse is legally entitled to his entire estate. If Larry died with
surviving children, his surviving spouse is only entitled to receive one-third of the estate. In light of
the above statutes, how much of Larry’s estate is his wife entitled to receive?
6.3

Children Conceived Using Artificial Insemination

When the statutory system allocating paternal responsibility was established a family
consisted of a man, a woman and children. The primary methods used to create a family were sexual
intercourse and adoption. The availability of assisted reproductive technology permits persons to
form families in various ways. The majority of states have statutes addressing the legal status of
children conceived with the use of assisted reproductive technology. Most of the state legislatures
that have enacted statutes dealing with assisted reproduction have focused exclusively on artificial
insemination. Thus, most of the cases discussed in this section will involve the use of artificial
insemination. The statutes that exist establish the parental rights of the inseminated woman’s
husband and the sperm donor.
In order for a child to inherit under the intestacy system, there must be a legally recognized
parent-child relationship. This section examines the circumstances under which a man has a duty to
financially support a child conceived using artificial insemination. Once the law recognizes the
existence of a father-child relationship for child support purposes, the child is given the opportunity
to inherit from his or her father. If a man is financially responsible for a child during his lifetime,
that child is usually classified as his heir if he dies intestate. Once an artificially conceived child is
permitted to inherit from his or her father, the issue that must be resolved is: from which “father”
does the child have the legal right to inherit. There are two possible answers to this question. The
child may have the right to inherit from the husband of his or her mother or from the man who
donated the sperm that resulted in his or her conception.
6.4

The Paternity of the Inseminated Woman’s Husband

The legal issue becomes: Is the child the legitimate heir of the inseminated woman’s
husband? If the child is classified as legitimate, the child has the right to inherit from the man who
was married to the child’s mother at the time of the artificial insemination. Under the common law,
the child would be in the class of heirs if the child was conceived during marriage. The states that
have enacted statutes addressing the status of children conceived by artificial insemination have
taken different routes to arrive at the same answer—the child is the legitimate child of the woman’s
husband. Thus, the child has the right to inherit from and through the man.

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6.4.1

Consenting Husband is the Legal Father

In the majority of jurisdictions, if the husband does not consent in writing to the artificial
insemination of his wife, he is not responsible for providing financial support to the resulting child.
Hence, it follows that the child would not be eligible to inherit from the non-consenting husband. A
few states require that the husband’s consent to the artificial insemination be in writing.
Nonetheless, some courts have stated that consent is not limited to written consent. Therefore, a
man may become responsible for the artificially conceived child as a result of his actions. Some state
statutes require that the husband consent to the artificial insemination without specifically stating
that the consent has to be in writing.
6.4.1.1 Written Consent
When evaluating the consent of the woman’s husband for purposes of establishing the
father-child relationship, the first thing the courts attempt to determine is whether or not the
husband gave written consent. Resolving that inquiry requires the court to answer two questions: (1)
whether there was a writing and (2) whether the writing satisfies the statutory mandate. This is not a
straight forward analysis because most of the state statutes do not identify the type of document that
is necessary to satisfy the written consent requirement. In addition, the statutes do not specify the
necessary content of the writing and the time at which the writing must be signed. The court in the
following case gave the written consent requirement a flexible meaning and used the doctrine of
substantial compliance to recognize the woman’s husband as the legal father of the artificially
conceived child.

Lane v. Lane, 912 P.2d. 290 (N.M. 1996)
HARTZ, J.
Twentieth-century science has complicated the law of paternity. Advances in biology make it
possible both to determine and to create biological parents in ways not contemplated a few decades
ago. On the one hand, laboratory technicians can now rebut the presumption that the husband of
the mother at the time of conception is the biological father. On the other, physicians can now
enable infertile couples to have children who do not share both parents' genes. Legislatures have
been attempting to design paternity statutes that properly balance the important interests at stake.
This appeal requires us to interpret one such attempt, the Uniform Parentage Act (the Uniform Act),
approved by the National Conference of Commissioners on Uniform State Laws in 1973 and
enacted, with some modifications, in New Mexico in 1986, NMSA 1978, §§ 40-11-1 to -23
(Repl.Pamp.1994) (the New Mexico Act).
The dispute before us arises out of the dissolution of the marriage of Arlene Daniels Lane (Wife)
and Terrence M. Lane (Husband). Wife appeals the district court's order granting Husband joint
custody of Colleen Lane, who was conceived during the marriage by artificial insemination from an
anonymous donor. Husband is neither the biological nor adoptive parent of Colleen. The issue on
appeal is whether Husband should nevertheless be treated as Colleen's “natural” father. We hold
that he acquired that status through substantial compliance with the New Mexico Act. We therefore
affirm the judgment of the district court.
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Background
Husband and Wife were married on December 4, 1984. With three children from two previous
marriages, Husband had undergone a vasectomy in 1980. Shortly after the marriage, however, Wife
expressed a desire to have children. Husband was hesitant and refused to have his vasectomy
reversed. But after Wife stated that she would leave Husband if she could not have children,
Husband and Wife explored various options. They chose artificial insemination from an anonymous
donor, obtaining help first from a personal physician and then from the University of New Mexico
Hospital. Husband participated in the process, driving Wife for some medical visits, attending
birthing classes, and being present in the delivery room for the birth of Colleen. Husband testified
that Wife assured him that he would be treated in all respects as the father of the child. He also
testified that to ensure that Colleen would think he was her natural father, Wife made him swear not
to reveal that she had undergone artificial insemination but, rather, to represent the child as having
been conceived naturally by the couple.
The customary practice of the University of New Mexico Hospital was not to undertake artificial
insemination without the signed consent of both the husband and the wife. A hospital representative
testified that the consent's purpose was to make the couple aware of the risks involved, to establish
that they both wished to participate in the program, and to obtain a release from liability. Yet, the
only signed consent form relating to Wife is a document signed just by Wife and apparently brought
to the hospital by Wife from her previous physician. Neither Husband nor Wife recalled signing any
form of consent relating to the insemination that led to the conception of Colleen. Neither the
hospital files nor the records of the New Mexico Bureau of Vital Records and Health Statistics
contain any additional consent form, although medical notes for a later unsuccessful attempt to
conceive another child in 1990 contain the notation: “patient [Wife] and spouse signed consent.”
After Colleen was born, both Husband and Wife told friends and relatives that Husband was
Colleen's natural father. Husband appears as Colleen's father on her birth certificate, although the
circumstances under which his name was entered are unclear. See NMSA 1978, § 24-14-13(D)
(Repl.1986) (birth certificate should name husband of mother as father unless paternity established
in court or by agreement of both spouses and putative husband). Wife encouraged Husband to be
an active parent, and he was.
On May 10, 1991 Husband filed a petition to dissolve the marriage. The petition, which Husband
verified, alleges that Colleen is a child of the marriage. The response to the petition, which Wife
verified, requests that she be awarded sole legal and physical custody of the child but admits that
Colleen was a child of the marriage and does not challenge Husband's paternity. On March 26, 1992
the attorneys for Husband and Wife approved a stipulated order stating that the parties “agree and
stipulate” that Husband and Wife “are the parents of Colleen Dawn Lane, born August 26, 1988.”
7. On February 16, 1993 a new attorney entered an appearance for Wife. Two weeks later that
attorney moved for leave to file an amended response and counterpetition, stating that “[t]he facts
leading to the proposed Amended Response and Counterpetition have recently come to light.” The
new pleadings for the first time alleged that Colleen was conceived through artificial insemination
and that Husband was neither her natural nor legal father.
After trial on the issues of paternity and custody, the district court awarded joint custody in July
1993. The court concluded that “[i]t is inequitable to strictly apply [the New Mexico Act] to this
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case, because this Court finds that both parties manifested through their actions and words that they
both consented to the artificial insemination.” A final order setting forth the terms of joint custody
was entered by the district court on February 7, 1995.
Discussion
Although a stepparent may be entitled to visitation rights after dissolution of a marriage, see NMSA
1978, § 40-4-9.1(L)(4) and (8) (Repl.Pamp.1994); Rhinehart v. Nowlin, 111 N.M. 319, 323-25, 805 P.2d
88, 92-94 (Ct.App.1990); id. at 330-32, 805 P.2d at 99-101 (Hartz, J., concurring), Husband has a
right to custody only if he is Colleen's “natural” father. According to the statutory provision
governing joint custody of children after dissolution of marriage, “[w]hen any person other than a
natural or adoptive parent seeks custody of a child, no such person shall be awarded custody absent
a showing of unfitness of the natural or adoptive parent.” Section 40-4-9.1(K).
Under what circumstances may someone who is not the biological father be the “natural” father?
New Mexico law provides that “[t]he parent and child relationship between a child and ... the natural
father may be established as provided in the [New Mexico] Act.” Section 40-11-4(B). The New
Mexico Act recognizes a presumption of paternity in several circumstances, such as when the child
is born during the marriage, § 40-11-5(A)(1), or when the man during the child's minority “openly
holds out the child as his natural child and has established a personal, financial or custodial
relationship with the child,” Section 40-11-5(A)(4). Husband here could rely on one or more of
these presumptions, except that the presumptions can be rebutted by clear and convincing evidence.
Section 40-11-5(C). Any presumption in this case was indisputably rebutted by evidence of
Husband's sterility and the artificial insemination.
Consequently, Husband's claim to be Colleen's natural father must rest on Section 40-11-6, which
addresses artificial insemination. It reads:
A. If, under the supervision of a licensed physician and with the consent of her husband, a
woman is inseminated artificially with semen donated by a man not her husband, the
husband is treated as if he were the natural father of the child thereby conceived so long as
the husband's consent is in writing, signed by him and his wife. The physician shall certify
their signatures and the date of the insemination and file the husband's consent with the vital
statistics bureau of the health services division of the health and environment department
[department of health], where it shall be kept confidential and in a sealed file; provided,
however, that the physician's failure to either certify or file the consent shall not affect the
father and child relationship.
B. Any donor of semen provided to a licensed physician for use in artificial insemination of a
woman other than the donor's wife may be treated as if he were the natural father of the
child thereby conceived if he so consents in writing signed by him and the woman. The
physician shall certify their signatures and the date of the insemination and file the donor's
consent with the vital statistics bureau of the health services division of the health and
environment department [department of health] where it shall be kept confidential and in a
sealed file; provided, however, that the physician's failure to either certify or file the consent
shall not affect the father and child relationship.
C. All papers and records pertaining to the insemination, whether part of a court, medical or
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any other file, are subject to inspection only upon an order of the court for good cause
shown.
Wife argues that written consent is essential if the husband is to be treated as the natural father. She
points out that the statute not only requires the husband's consent but also specifically provides that
the husband is treated as the natural father only “so long as the husband's consent is in writing,
signed by him and his wife.” Comparison of the language of the New Mexico Act with the language
of the Uniform Act reinforces the argument that the existence of a writing is an absolute
requirement for the husband to be treated as the natural father. The first sentence of the New
Mexico Act differs in a suggestive way from the first two sentences of the Uniform Act. Section 5 of
the Uniform Act states:
If, under the supervision of a licensed physician and with the consent of her husband, a wife is
inseminated artificially with semen donated by a man not her husband, the husband is treated in law
as if he were the natural father of a child thereby conceived. The husband's consent must be in
writing and signed by him and his wife.
The New Mexico Act's version of this language-combining the two sentences by inserting the
conditional phrase “so long as”-serves little purpose but to emphasize the dependence of the
husband's status on the execution of a written consent.
Moreover, the New Mexico Act (just as the Uniform Act) explicitly states that the failure of the
physician to certify the signatures and file the consent shall “not affect the father and child
relationship.” By stating that the failure to comply with certain requirements does not affect the
husband's status as the natural father, the statute implies that failure to comply with other
requirements does affect that status.
Wife further argues that strict compliance with the statutory requirements is called for because of
the precious maternal rights that are at stake. Although the district court did not annul Wife's right
to her child, the reduction in those rights resulting from her having to share joint custody with
Husband is a matter of profound significance. Indeed, there is some authority that even granting just
visitation rights to a third party can violate the constitutional rights of a parent. See Brooks v.
Parkerson, 265 Ga. 189, 454 S.E.2d 769 (holding grandparent visitation statute to be
unconstitutional), cert. denied, 516 U.S. 942, 116 S.Ct. 377, 133 L.Ed.2d 301 (1995); but see Campbell v.
Campbell, 896 P.2d 635 (Utah Ct.App.1995) (refusing to follow Brooks).
The final step in Wife's argument is simply to point out that there was not strict compliance with the
New Mexico Act in this case. The record contains no written consent signed by both Husband and
Wife. Although there was sufficient evidence at trial for the district court to make a finding that such
a document had once been in existence, the district court made no such finding.
Wife's syllogism is not without persuasive force. But we do not adopt it. In our view, the absence of
strict compliance does not end the inquiry. To begin with, despite the constitutional protection given
to parenthood, we view the matter before us as a matter of statutory construction. We are aware of
no constitutional doctrine that insists on a genetic basis for parenthood. Wife does not suggest that
Section 40-11-6, which permits a husband who is not the biological father to be treated as the
natural father, is unconstitutional. Nor does she suggest that the statute would be unconstitutional if
the requirement of a writing were eliminated. Although the importance of the interests involved
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cautions us to be circumspect, traditional precepts of statutory interpretation should apply.
Those precepts tell us that even though a statute constitutes a command to the courts regarding
what law to apply, the command must be read with intelligence. The legislature, as with anyone who
issues an order, cannot anticipate every contingency. The legislature can, however, expect that when
one of its orders (i.e., a law) is to be carried out, those who have that duty (i.e., the courts) will
discern its purpose and act in accordance with its essence if not necessarily its letter. The doctrine of
statutory interpretation that captures this proposition is the doctrine of substantial compliance.
Under that doctrine, “a court should determine whether the statute has been followed sufficiently so
as to carry out the intent for which the statute was adopted and accomplishes the reasonable
objectives of the statute.” Vaughn v. United Nuclear Corp., 98 N.M. 481, 485, 650 P.2d 3, 7 (Ct.
App.), cert. quashed, 98 N.M. 478, 649 P.2d 1391 (1982).
Application of the substantial-compliance doctrine is a risky venture. The danger, of course, is that
the court will choose its personal view of what is just or fair, rather than complying with the
mandate of the statute. Departure from the strict letter of a statute should therefore be undertaken
with great caution. In particular, one must be careful not to underestimate the purposes served by
strict compliance with the letter of the statute.
Keeping these concerns in mind, we nevertheless find that this case presents an example of
exceptional circumstances in which the doctrine of substantial compliance must be employed. The
purposes of Section 40-11-6(A) are best effectuated by treating Husband as Colleen's natural father.
The essential policy of the section is that when a husband and wife both approve of her conceiving a
child through artificial insemination and both wish the husband to be treated as the natural father,
then the State should honor that wish. As for the requirement that the consent be in writing, we
have searched in vain for commentary on the Uniform Act that addresses the matter. See, e.g., Harry
D. Krause, Bringing the Bastard Into the Great Society-A Proposed Uniform Act on Legitimacy, 44 Tex. L. Rev.
829 (1966) (described in the prefatory note to the Uniform Act as providing the genesis for the Act).
Nevertheless, it appears clear to us that the requirement of a writing serves two functions. First, the
writing serves an evidentiary function. The existence of a document signed by the husband and the
wife avoids disputes regarding whether consent was actually given. Second, the requirement serves a
cautionary purpose. One who pauses to sign a document can be expected to give more thought to
the consequences of consent than one who gives consent in a less formal setting. An additional
purpose that may be served by the requirement of written consent is to protect from liability the
medical personnel who conduct the procedure, but failure to advance that purpose could hardly be a
ground for denying the husband's status as a natural parent.
It is important to note that while the New Mexico Act requires a writing to achieve these two
purposes, it is not rigid about the nature of the writing. The statute does not require any particular
form of words for the consent. Given the purposes of the statute, a writing should be satisfactory if
it conveys in some manner that (1) the husband knows of the conception by artificial insemination,
(2) the husband agrees to be treated as the lawful father of the child so conceived, and (3) the wife
agrees that the husband will be treated as the lawful father of the child.
We also note that the New Mexico Act does not prescribe when the written consent must be
executed. Although the mother may wish to be assured of the husband's responsibility toward the
child before undergoing the procedure, and the medical personnel may wish to be assured that the
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husband will not hold them responsible before they initiate the procedure, the evidentiary and
cautionary purposes of the writing requirement can be fully served by a writing executed after the
artificial insemination, or even after the birth of the child. We fail to see how the date of the writing
affects the probative value of the writing as evidence of the consent. The date certainly has less
effect on the probative value than does the presence or absence of certification by the physician,
which is a statutory requirement that by the express terms of the statute “shall not affect the father
and child relationship.” Section 40-11-6(A). As for the cautionary purpose of the writing
requirement, a consent to parenthood after successful insemination, and especially after the birth of
the child, would probably reflect more solemn consideration than such a consent before the
insemination procedure. After all, the full consequences of consent become strikingly evident once
the child is born.
The above analysis of the purposes and terms of Section 40-11-6(A) convinces us that there was
substantial compliance with the New Mexico Act in this case. Of particular interest are the pleadings
filed in district court. Husband verified his petition claiming Colleen as a “minor child[ ] of the
marriage.” Wife likewise verified the response, which admitted that “there is one minor child of the
marriage, Colleen Dawn Lane,” and did not challenge Husband's paternity in any manner. Later in
the litigation the attorneys for Husband and Wife each signed a stipulated order which stated: “The
parties agree and stipulate as follows: 1. The parties are the parents of Colleen Dawn Lane, born
August 26, 1988.” Although no document was signed by both Husband and Wife, and one of the
pleadings was signed only by their attorneys, these pleadings unequivocally demonstrate that more
than two and one-half years after the birth of Colleen, and even after the marriage had failed, both
Husband and Wife were acknowledging Husband's status as Colleen's natural father. Cf. NMSA
1978, § 55-2-201(3)(b) (Repl.Pamp.1993) (Uniform Commercial Code statute of frauds can be
satisfied by a pleading). To be sure, missing from these documents is any reference to the artificial
insemination by which Colleen was conceived. But there is absolutely no dispute in this case that
Husband was fully aware of the artificial insemination and that Wife knew that he was fully aware.
There is not even a whisper of a possibility that Husband was deceived regarding the circumstances
of Colleen's conception. Consequently, the pleadings referred to represent a knowing consent by
both Husband and Wife to treating Husband as the natural father of the child born to Wife as a
result of artificial conception. The purposes of the statute are served.
We recognize that pleadings can be amended and a party is not necessarily bound by the first
pleading filed in court. Indeed, the district court in this case permitted Wife to file an amended
response to Husband's petition and a counterpetition challenging Husband's paternity. Nevertheless,
we fail to see why the fact that a pleading can be amended to expand the issues to be decided at trial
should necessarily impact upon the effect of statements in those pleadings with respect to Section
40-11-6(A). Nothing in the New Mexico Act permits withdrawal of consent. Wife has not suggested
any equitable grounds for setting aside her sworn allegation or the stipulation of her counsel. At
most, she could argue that the statements were made without knowledge of (1) the requirements of
Section 40-11-6(A) or (2) the absence of a written consent to the artificial insemination. In the
circumstances of this case, we see no reason why Wife's ignorance of the law and of that particular
fact warrants setting aside the clear import of the assertions made in the pleadings-that both
Husband and Wife considered Husband to be Colleen's father.
Conclusion
We affirm the judgment of the district court. The parties shall bear their own costs and attorney's
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fees on appeal.
Notes and Questions
1. If the husband in Lane sought to be relieved of all legal responsibility for the child, would the
result of the case have been the same?
2. In Lane, the husband refused to reverse his vasectomy. In addition, the husband never gave
written consent to have his wife artificially inseminated. In light of those facts, did the court
correctly conclude that the husband had substantially complied with the statutory written consent
requirement?
3. What are the disadvantages of the court giving “written consent” such a broad meaning?
4. Does the court’s analysis conflict with the plain language of the statute? Do you think that it
carries out the legislature’s intent?
5. Based upon the three-part test established in the case, in which of the following situations would
the written consent requirement be satisfied?
(a) The husband posted a message on his social media page stating that he and his wife were going
to be parents.
(b) Husband and Wife sign and send out the following baby shower announcement: “Please join us
to celebrate the impending birth of our child.”
(c) Prior to the birth of the child, Husband and Wife fill out an adoption petition requesting that
Husband be allowed to adopt the child.
(d) Husband and Wife execute a contract in which they agree that the Husband will be the father of
any child born during their marriage.
6.4.1.2 Verbal Consent
The key purpose of the written consent requirement is to make sure that the husband is not
forced to parent a child without his consent. Consequently, if the husband acknowledges that he
consented to the artificial insemination, the court will recognize him as the legal father even in the
absence of written consent. As the next case indicates, once the court determines that the man has
given some type of consent, written or verbal, that consent cannot be easily revoked. The majority
of states do not permit a man to withdraw his initial consent to the artificial insemination. Thus, a
man who changes his mind after initially consenting to the artificial insemination of his wife may still
be recognized as the legal father of the resulting child.

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K.S. v. G.S., 440 A.2d 64 (N.J. Super. Ct. App. Div. 1981)
MILLER, J. S. C.
This matter comes before the court on plaintiff wife's motion for pendente lite support and custody
of the infant child, J. S., who was born during the course of plaintiff's marriage to defendant but was
conceived by a technique of artificial insemination known as “artificial insemination by donor”
(AID). Since a full exposition of the factual background is necessary for a proper understanding of
the case, the following findings of fact are made.
The parties were married on December 6, 1977. Defendant had been previously married and
divorced. After a third child was born of the prior marriage and before the marriage to present
plaintiff, defendant voluntarily underwent a vasectomy operation which sterilized him. Plaintiff was
aware of defendant's infertility prior to their marriage.
Several months after marriage plaintiff learned of the AID procedure. The parties were referred by
their family physician to Lewis Ladocsi, an obstetrician and gynecologist, who specialized in the field
of fertility. Ladocsi first saw the couple on July 8, 1978, at which time he intensively interrogated the
couple, took a joint history and explained the AID process to them. He also noted physical
characteristics of defendant for the purpose of obtaining a “matching” donor and directed that
blood tests be taken for the purpose of aiding in the screening of donor applicants. Ladocsi
questioned defendant closely in order to determine whether he understood and consented to AID.
Defendant stipulates he gave his verbal consent to the procedure at that time.
Ladocsi did not, however obtain any written consent from defendant. He indicated that at the time it
was not his practice to obtain written consents from AID patients. His present practice, however, is
to obtain written consent before commencing the AID process. New Jersey statutory law does not
require written consent be obtained by a physician before the commencement of AID procedures,
and did not in 1978.
A suitable donor was selected and a series of three artificial insemination procedures took place in
July 1978. The initial insemination process was successful and plaintiff was tested positive for
pregnancy on August 19, 1978. That pregnancy did not result in a live birth because a spontaneous
miscarriage took place in early September 1978.
Defendant, after the miscarriage, expressed feelings of sympathy and urged plaintiff to continue the
procedures when she was able to do so. Although defendant testified to the contrary, he court finds
that he expressed no reservations to continuing the AID procedures for any reason at that time.
During 1978 the parties had several discussions concerning the continuing cost of the AID
procedures, which placed a strain on the family budget and resulted in several overdrafts on the joint
checking account. Defendant contends he told plaintiff to stop the AID treatments because of the
cost. This testimony is not credible and is inconsistent with plaintiff's convincing testimony that
defendant accompanied plaintiff to Ladocsi's office for the insemination procedure on several
occasions in 1979, including at least one occasion in October 1979. Defendant also admitted he
never advised Ladocsi at any time that he had any reservations concerning continuing the AID
procedure.
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Commencing in November 1978 plaintiff continued with the AID procedures at the rate of
approximately three inseminations during her fertile cycles. Various medications were prescribed and
various examinations were employed to confirm her continuing ability to conceive, since she failed
to become pregnant for many months. Finally, in October 1979 she became pregnant with J. S.
After plaintiff's pregnancy was confirmed defendant became distant and uncommunicative. On
December 30, 1979 he left the marital premises “to think things out.” In a telephone conversation
between the parties shortly after that date defendant advised plaintiff he objected to her pregnancy.
The parties continued to live separately until the child was born on July 28, 1980. Plaintiff filed a
complaint for divorce on October 7, 1980, seeking support for the child. Defendant has never seen
the infant or contributed to its support.
It is clear that in the absence of a husband's consent to artificial insemination, support obligations
may not be imposed on him. People v. Sorenson, 68 Cal.2d 280, 66 Cal.Rptr. 7, 437 P.2d 495
(Sup.1968); Adoption of Anonymous, 74 Misc.2d 99, 345 N.Y.S.2d 430 (Surr.Ct.1973). Legislation
addressing the problem of the paternal duties created by artificial insemination has likewise
uniformly conditioned imposition of all such obligations in a marital context upon a husband's valid
consent to use of the procedure.
In the case at bar, the initial consent of the husband is clearly established. Defendant contends he
withdrew his consent to the AID procedure prior to conception by informing plaintiff of his
opposition to continuing the inseminations. He further contends that plaintiff then went ahead with
AID procedures surreptitiously and without his knowledge or approval in the face of his opposition.
In the present case the initial AID sequence was followed first by a miscarriage, then by resumption
of artificial insemination procedures. As the procedures continued and pregnancy did not result,
alternative courses of treatment for infertility were attempted, each followed by another series of
AID procedures. When plaintiff finally conceived, it was approximately 15 months after defendant's
initial consent.
Two questions are therefore presented. First, does consent to AID, once given, continue until
pregnancy is accomplished? Second, if consent be deemed to continue, what burden of proof must
be met to establish withdrawal of consent?
Legislation which has considered artificial insemination has favored continuation of consent. Such a
result is achieved by presuming the husband's initial and continuing consent to artificial insemination
procedures and placing the burden on him to establish otherwise.
Although no cases are reported in that jurisdiction dealing with legitimacy in the context of artificial
insemination, it has been held that the presumption of legitimacy may be rebutted by “contrary
evidence ... of greater persuasion than that having given rise to the presumption....” Zamaludin v.
Ishoff, 44 Md. App. 538, 409 A.2d 1118, 1121 (Ct.Spec.App.1980), interpreting Md. Code Ann. s 1105(b).
In legitimacy or paternity cases where pregnancy has been naturally induced, the central issue is
often an evidentiary question of access or nonaccess of the putative father at the time of conception.
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In New Jersey, in order to sufficiently rebut the presumption of legitimacy of a child born or
conceived prior to the dissolution of marriage in such cases, proof of illegitimacy must be such that
“there is no possible escape” from that conclusion. In re Rogers' Estate, 30 N.J.Super. 479, 105 A.2d
28 (App.Div.1954); Egnozzi v. Egnozzi, 17 N.J.Super. 433, 86 A.2d 272 (App.Div.1952). If proof of
illegitimacy is by nonaccess of the husband, evidence of nonaccess must be clear and convincing,
strong and irresistible, or something just shy of absolute certainty. Jackson v. Prudential Ins. Co. of
America, 106 N.J.Super. 61, 77, 254 A.2d 141 (Law Div.1969).
The court recognizes that, from the point of view of the partners involved in artificial insemination,
there is a physical and psychological difference in the manner the pregnancy will be perceived.
From the point of view of the female partner, although the child is conceived artificially, from all
other aspects it is a natural child, carried to term exactly as if conception had taken place by natural
means. While there may be a lingering question in her mind during the pregnancy as to what the
child's physical characteristics may be, after undergoing the painful and emotional experience of
childbirth, that uncertainty will be resolved.
For the male partner, on the other hand, it is quite possible that his perception of the pregnancy will
be substantially different. He is not the natural father, as the mother is the natural parent, and must
be well aware of that fact. He may experience feelings of inadequacy, resentment or other negative
attitudes toward the pregnancy, as illustrated by the case at bar. Thus, from the male point of view
the pregnancy and resulting issue is, in many ways, akin to an adoption of the resulting child.
However, whereas society has seen fit to regulate the artificial status of parent and child resulting
from the adoption process, to insure as much as possible the stability of the relationship being
created, no such protections exist at this time with regard to the field of artificial insemination.
N.J.S.A. 9:3-17 et seq. Until such safeguards are supplied by legislative enactment, they must be
supplied on a case-by-case basis.
In artificially induced pregnancy cases, nonaccess, of course, becomes irrelevant but is replaced by
the issue of consent in order to establish legitimacy. Since consent, once it is disputed, is often far
more difficult to prove to the same degree of certainty as physical access, it is only practical and
reasonable to apply a rebuttable presumption criterion in determining threshold evidentiary
questions as to the existence of consent at a certain point in time. This is particularly true when the
question becomes one of withdrawal of an initial consent to the procedure.
Many states have resolved this problem by enacting statutes requiring that consent be provided in
writing, although none specifically requires revocation of consent to be of the same formality.
(citations omitted). Such legislative mandate achieves certainty and also diminishes problems of legal
proof.
Public policy considerations seeking to prevent children born as a result of AID procedures from
becoming public charges or being bastardized require that a presumption of consent exist and that a
strong burden be placed on one seeking to rebut the presumption. C. M. v. C. C., 152 N.J.Super.
160, 166, 377 A.2d 821 (Cty.Ct.1977). The same policy considerations are present whether the
question presented is one of initial or continued consent. The absence of any authority limiting the
continuing effectiveness of consent also leads to the conclusion that consent of the husband (in the
case of married partners), once given, is presumed to be effective at the time when pregnancy
occurs, unless the husband establishes by clear and convincing evidence that such consent has been
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revoked or rescinded. Defendant has not met that burden.
Insofar as this is the case, the best interests of the child, the mother, the family unit and society are
served by recognizing that the law surrounding AID insemination deals with the creation of a family
unit and more particularly with the creation of parent-child relationships. Thus viewed, the public
policy objectives served by legitimacy laws should similarly and consistently be applied in dealing
with closely related problems presented by the use of AID techniques.
Accordingly, defendant is declared to be the lawful father of J. S. and as such bears at least partial
responsibility for the child's support. The amount thereof is deferred pending submission by the
parties of updated financial data to the court within 20 days of the date hereof.
The issue of custody is not disputed at all by defendant. Therefore, custody of J. S. is granted to
plaintiff. Defendant is granted reasonable and liberal visitation with the child, should he choose to
exercise it, subject to the requirement that he advise the plaintiff by telephone at least 24 hours in
advance of each visit of his intention to exercise visitation.
Motion granted.
6.4.1.3 Presumed Consent

W.W. v. W.W., 51 A.D.3d 211 (N.Y. App. Div. 2008)
SPAIN, J.
At issue is the novel question of whether a husband can be deemed the legal parent of a child born
to his wife, where the child was conceived as a result of artificial insemination by donor (hereinafter
AID) during the marriage, but where the husband's consent to the AID was not obtained in writing.
The parties to this divorce action were married in 1995. After two children were born to the
marriage, defendant (hereinafter the husband) had a vasectomy. In 2004, plaintiff (hereinafter the
wife) became pregnant again, as a result of AID, with a third child (hereinafter the child). A few
months into the wife's pregnancy, the parties separated pursuant to an agreement which provided,
among other things, that the husband would not be financially responsible for the child. However, in
her subsequent complaint for divorce, the wife alleged that the child was born to the marriage. The
parties then entered a settlement agreement which reaffirmed the terms of the separation agreement
and calculated the husband's support obligation based on two children. Thereafter, Supreme Court
found that the provision in the separation agreement absolving the husband of his support
obligation for the child was void as against public policy. Following a hearing on the issue of
paternity, Supreme Court held that the husband was the child's legal father and modified the parties'
stipulation by increasing the husband's child support obligation based upon three children, instead
of two. Thereafter, the court entered judgment granting the divorce. The husband appeals and we
now affirm.
Initially, we agree with Supreme Court that the provision of the settlement agreement absolving the
husband of any support obligation with respect to the child is unenforceable. Despite the fact that
the parties stipulated to the terms of the divorce, the court correctly recognized its obligation to
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protect the best interests of the child, and appointed a Law Guardian. Indeed, the agreement left the
child fatherless without any hearing or analysis of the child's rights and interests. Given that “the
needs of a child must take precedence over the terms of the agreement when it appears that the best
interests of the child are not being met,” we agree that the parties' agreement-which preceded any
determination of legal paternity-to leave the child without the husband's support cannot stand
(Matter of Gravlin v. Ruppert, 98 NY2d 1, 5 [2002]; see Harriman v Harriman, 227 AD2d 839, 841
[1996]).
Next, we turn to the application of Domestic Relations Law § 73 to the facts of this case. That
section provides a mechanism for married couples who utilize AID to have a child with assurances
that the child will be, for all purposes, considered the legitimate child of both the woman and her
husband (see Domestic Relations Law § 73[1]). Specifically, Domestic Relations Law § 73, which
creates an irrebuttable presumption of paternity when certain conditions are met, states:
“Any child born to a married woman by means of artificial insemination performed by
persons duly authorized to practice medicine and with the consent in writing of the woman
and her husband, shall be deemed the legitimate, natural child of the husband and his wife
for all purposes. . . .
“The aforesaid written consent shall be executed and acknowledged by both the husband
and wife and the physician who performs the technique shall certify that he [or she] had
rendered the service.”
Given the clear and specific language making written consent a prerequisite to invoking the statute's
protections, we cannot find that the statute applies where, as here, it is conceded that the husband
did not consent in writing to the procedure. Indeed, the wife's physician testified that he rarely
performed AID and conceded that he did not have any office protocol or standard form for
obtaining the consent of the woman's husband. Under these circumstances, we conclude that
Domestic Relations Law § 73 does not establish the husband's relationship to the child.
The fact that paternity cannot be established by statute, however, does not end our inquiry (cf. In re
Parentage of M.J., 203 Ill 2d 526, 535-537, 787 NE2d 144, 149-150 [2003] [holding written consent to
AID essential to finding paternity]). Neither the language nor legislative history of Domestic
Relations Law § 73 suggests that it was intended to be the exclusive means to establish paternity of a
child born through the AID procedure. Indeed, the statute, by its terms, covers one specific
situation where it operates to create an irrebuttable presumption of paternity; it applies only where
the parties are married, the procedure is performed by a person “duly authorized to practice
medicine” and the consent is appropriately written, executed, acknowledged and certified (see
Attorney General's Mem in Support, Bill Jacket, L 1974, ch 303, at 3 [noting statute does not address
the legitimacy of children born without husband's written consent or those conceived by AID prior
to the enactment of the statute]; see also Matter of Thomas S. v Robin Y., 209 AD2d 298, 299 [1994], lv
dismissed 86 NY2d 779 [1995] [insemination performed by the woman at home]).
Certainly, situations will arise where not all of these statutory conditions are present, yet equity and
reason require a finding that an individual who participated in and consented to a procedure
intentionally designed to bring a child into the world can be deemed the legal parent of the resulting
child (see Letter from Div of Human Rights, Bill Jacket, L 1974, ch 303, at 9 [noting the statute does
not provide a result where AID is performed by someone other than a “ ‘duly authorized’
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physician,” but that status of the medical professional should not impact legitimacy of child]).
Indeed, “if an unmarried man who biologically causes conception through sexual relations without
the premeditated intent of birth is legally obligated to support a child, then the equivalent resulting
birth of a child caused by the deliberate conduct of artificial insemination should receive the same
treatment in the eyes of the law” (In re Parentage of M.J., 203 Ill 2d at 541, 787 NE2d at 152; see In re
Baby Doe, 291 SC 389, 392-393, 353 SE2d 877, 878-879 [Sup Ct 1987] [“even where husband's
written consent is statutorily required, the failure to obtain written consent does not relieve (the)
husband of the responsibilities of parentage”]; see also R.S. v R.S., 9 Kan App 2d 39, 44, 670 P2d 923,
928 [1983]).
We thus reject the husband's attempt to invoke noncompliance with Domestic Relations Law § 73
as a bar to a finding that he is, legally, the child's father. It is clear that the overriding purpose of the
statute is to give certainty to the legitimacy of those children conceived via AID whose parents
complied with all of the statutory prerequisites, rather than to create a means of absolving
individuals of any responsibility toward a child, even if the proof could otherwise establish that the
individual participated in and consented to the decision to create the child (see Attorney General's
Mem in Support, Bill Jacket, L 1974, ch 303, at 3; Mem of Dept of Social Servs, Bill Jacket, L 1974,
ch 303, at 7; Letter from Dept of Health, Bill Jacket, L 1974, ch 303, at 8; see also In re Parentage of
M.J., 203 Ill 2d at 534, 787 NE2d at 148).
Accordingly, as the statute is neither applicable to nor determinative of the issue of paternity
presented, we turn to the common law for an answer. To begin, “New York has a strong policy in
favor of legitimacy” (Matter of Anonymous, 74 Misc 2d 99, 104 [1973]). Indeed, the presumption that a
child born to a marriage is the legitimate child of both parents “ ‘is one of the strongest and most
persuasive known to the law’ ” (State of New York ex rel. H. v P., 90 AD2d 434, 437 [1982], quoting
Matter of Findlay, 253 NY 1, 7 [1930]). Hence, our analysis begins with the rebuttable presumption
that the child, a child born to a married woman, is the legitimate child of both parties.
Prior to the enactment of Domestic Relations Law § 73, a Surrogate's Court held “that a child born
of consensual AID during a valid marriage is a legitimate child entitled to the rights and privileges of
a naturally conceived child of the same marriage” (Matter of Anonymous, 74 Misc 2d at 105). This
common-law rule is shared by numerous jurisdictions which have held, even in the absence of
statutorily required written consent, that “the best interests of children and society are served by
recognizing that parental responsibility may be imposed based on conduct evincing actual consent to
the artificial insemination procedure” (citations omitted).
Consistent with our State's strong presumption of legitimacy, as well as the compelling public policy
of protecting children conceived via AID, we follow the lead of other jurisdictions that impose a
rebuttable presumption of consent by the husband of a woman who conceives by AID, shifting the
burden to the husband to rebut the presumption by clear and convincing evidence (see e.g. In re Baby
Doe, 291 SC at 391, 353 SE2d at 878; K. S. v G. S., 182 NJ Super 102, 109, 440 A2d 64, 68 [1981];
People v. Sorensen, 68 Cal 2d 280, 283, 437 P2d 495, 497 [1968]; but see Jackson v. Jackson, 137 Ohio App
3d 782, 795, 739 NE2d 1203, 1213 [2000] [burden on wife to prove consent by a preponderance of
the evidence]). Although our Legislature has provided an avenue to avoid factual disputes essentially
by creating an irrebuttable presumption of legitimacy where the prerequisites of the statute are met
(see Domestic Relations Law § 73), the need for a rebuttable presumption also clearly exists,
especially so in light of the evidence that medical personnel who conduct AID procedures are not
always aware of statutory consent requirements (citations omitted).
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Turning to the specific issue before us, our review of the record reveals that the facts necessary to
resolve the matter were either undisputed, or have been fully litigated before Supreme Court,
rendering it appropriate to apply the rule of law announced herein without a remittal for further
hearings. It is not disputed that the husband was fully aware that his wife was utilizing AID to get
pregnant. Although he testified that he did not want a third child and that he had repeatedly told his
wife that he did not think AID was “a good idea,” at least until the couple had completed some
counseling, he did not testify that he ever informed his wife that, should a child be born as a result
of AID, he would not accept the child as his own. Indeed, he proffered no evidence that he took
any steps before the AID was performed to demonstrate that he was not willing to be the child's
father. Under these circumstances, we find that the husband failed to rebut the presumption that he
consented to bringing a third child into the marriage through AID.
Even if we did not apply the rebuttable presumption, and instead placed the burden on the wife and
Law Guardian to prove the husband's consent, we would find, as Supreme Court did, that the
evidence demonstrates that the husband consented to the child's creation. The husband knew that
his wife planned to undergo the AID procedure and observed her picking out a donor based on
characteristics which matched his own; he signed a “Frozen Donor Semen Specimen Agreement”
which set forth the terms of purchase and delivery of the semen specimen; he faxed the donor
agreement to the California-based sperm bank and paid for the specimen with a credit card; he
stayed home to care for the other children to enable his wife to go to the doctor's office for
insemination; and, significantly, he acknowledged in his testimony that had the couple stayed
together, he would have accepted the child as his own.
The husband's assertion that his wife forced him to sign the donor agreement by threatening to
leave him is of no consequence. Just as an individual who agrees and proceeds to create a child by
conventional methods in an attempt to salvage a troubled marriage is held responsible for the care
of the resulting child, so too should an individual who acquiesces to his spouse's demands that a
child be conceived through AID be held responsible. Importantly, the separation agreement
executed by both parties specifically states that “the unborn child is not the biological child of the
husband, but was conceived through a mutually agreed upon course of artificial insemination”
(emphasis added).
This evidence fully supports Supreme Court's conclusion that the husband consented to his wife's
decision to create the child and that he is, therefore, the child's legal father. Indeed, pursuing an
alternative avenue, we reach the same result, finding that the foregoing facts of this case also warrant
application of the doctrine of equitable estoppel to preclude the husband from “seeking to disclaim
paternity of the parties' child, whose best interest is paramount” (citations omitted).
Finally, we reject the husband's assertion that Supreme Court erred in granting a judgment of
divorce despite altering the terms of the parties' separation agreement. The separation agreement
contains a severability clause which specifically provides for the present situation, stating that if any
of its provisions “should be held to be contrary to or invalid under the law . . . such invalidity shall
not affect in any way any other provision hereof.” Inasmuch as the agreed upon support obligation
for the two children included in the separation agreement is the amount reached by direct
application of the Child Support Standards Act (see Domestic Relations Law § 240 [1-b]), altering the
percentage to reflect the parties' third child does not require a new hearing or undermine the other
provisions of the agreement. Under these circumstances, the divorce was properly granted (citations
289

omitted).
Ordered that the judgment is affirmed, without costs.
Notes and Questions
1. Some jurisdictions presumed that the man consented to the artificial insemination of his wife. As
a result of that presumption, the man is recognized as the legal father of the child. In a presumption
jurisdiction, which of the following situations should be enough to rebut the presumption?
(a) The man tells his mistress that he does not want to have a child with his wife because he plans to
divorce her.
(b) The man’s religious beliefs prohibit him from participating in artificial insemination.
(c) The man is biologically and physiologically capable of having children.
(d) The man has lost his job and is suffering financially.
(e) The man supplied sperm so his brother’s wife could be artificially inseminated.
6.4.1.4 Implied Consent

In re Baby Doe, 353 S.E.2d 877 (S.C. 1987)
NESS, Chief Justice
This is an appeal from an order of the family court which held appellant husband responsible for the
support of a child born to his wife as a result of artificial insemination. We affirm.
Husband has four grown children from a prior marriage. He married his present wife in the early
1970s and they attempted for several years to have a child. While living overseas, husband sought
medical advice and learned that he was no longer able to father children, apparently due to physical
trauma. Upon the parties' return to this country, the diagnosis was confirmed. The parties visited a
gynecologist in Myrtle Beach and discussed artificial insemination. With husband's knowledge, wife
began undergoing artificial insemination in Myrtle Beach and Charleston. Husband assisted wife
with daily temperature readings to determine dates of fertility.
Wife conceived in February, 1983, and the parties separated shortly thereafter. The child was born in
November, 1983, and husband was listed as father on the birth certificate.
Husband brought this action in family court seeking a declaration that he was not the father of the
child. Wife counterclaimed seeking child support. The trial judge held there was a rebuttable
presumption that any child conceived by artificial insemination during the course of the marriage has
been conceived with the consent of the husband. The judge also held husband had expressly and
impliedly consented to the artificial insemination, and awarded child support to wife.
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Husband argues implied consent to artificial insemination should not be sufficient to establish legal
parentage of a child. He argues that in the absence of written consent, he cannot be declared the
legal father of a child conceived by artificial insemination during the marriage.
Artificial insemination is the introduction of semen into the reproductive tract of a female by
artificial means. There are two types of artificial insemination in common use: (1) artificial
insemination with the husband's sperm (homologous insemination), commonly referred to as A.I.H.;
and (2) artificial insemination with the sperm of an anonymous third-party donor (heterologous
insemination), commonly referred to as A.I.D. (citations omitted). The legal entanglements of
determining parental responsibility have arisen almost exclusively from the latter (citations omitted).
This new reproductive technology has created the potential for conflicting decisions regarding the
status of the parties involved. With the exception of the earliest decisions on this issue, however,
American courts have been fairly uniform in their holdings. Almost exclusively, courts which have
addressed this issue have assigned paternal responsibility to the husband based on conduct
evidencing his consent to the artificial insemination. Cf., Byers v. Byers, 618 P.2d 930 (Okla.1980)
[distinguishing birth by artificial insemination from husband's acceptance of child born from wife's
affair with her paramour].
We hold that a husband who consents for his wife to conceive a child through artificial
insemination, with the understanding that the child will be treated as their own, is the legal father of
the child born as a result of the artificial insemination and will be charged with all the legal
responsibilities of paternity, including support (citations omitted).
We do not agree that husband's consent is effective only if obtained in writing. A number of
jurisdictions have adopted statutes regulating the use of artificial insemination and requiring written
consent of the parties or of the husband.76 However, even where husband's written consent is
statutorily required, the failure to obtain written consent does not relieve husband of the
responsibilities of parentage (citation omitted). Husband's consent to his wife's impregnation by
artificial insemination may be express, or it may be implied from conduct which evidences
knowledge of the procedure and failure to object.
We agree with the trial judge that husband's knowledge of and assistance in his wife's efforts to
conceive through artificial insemination constitutes his consent to the procedure. The trial judge's
decision to declare husband the legal father of Baby Doe is affirmed.

76 See Uniform Parentage Act, Section 5: (a) If, under the supervision of a licensed physician and with the consent of her

husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as
if he were the natural father of a child thereby conceived. The husband's consent must be in writing and signed by him
and his wife. The physician shall certify their signatures and the date of the insemination, and file the husband's consent
with the [State Department of Health], where it shall be kept confidential and in a sealed file. However, the physician's
failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination,
whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to
inspection only upon order of the court for good cause shown. (b) The donor of semen provided to a licensed physician
for use in artificial insemination of a married woman other than the donor's wife is treated in law as if he were not the
natural father of a child thereby conceived.

291

Husband's remaining exceptions are without merit and the trial judge's rulings on these issues are
affirmed pursuant to Supreme Court Rule 23.
Affirmed.
Notes and Questions
1. The UPA permits the husband to withdraw his consent to the artificial insemination of his wife.
Should the man be permitted to withdraw his consent? At what stage of the process should the
man’s withdrawal of consent be effective to relieve him of his obligation to any resulting child?
2. Should the withdrawal of consent have to be in writing?
3. What are the pros and cons of permitting a man to withdraw his consent?
4. Should the husband have the burden of proving that he withdrew his consent prior to the child’s
conception?
5. Which of the following evidence should be sufficient to show withdrawal of consent?
(a) Husband writes a letter to his wife stating that he is having second thoughts about raising a child
conceived by artificial insemination using another man’s sperm.
(b) Husband joins an organization that is lobbying to have the use of assisted reproductive
technology declared to be illegal.
(c) During a heated argument, husband tells his wife that he does not want to have a child with her.
(d) Husband refuses to pay for his wife to continue receiving artificial insemination, so she borrows
money to continue with the process.
6.4.2

Nonconsenting Husband is not the Legal Father

Marriage of Witbeck-Wildhagen, 667 N.E.2d 122 (Ill. App. Ct. 1996)
KNECHT, Justice.
Petitioner, Marcia Witbeck-Wildhagen, filed a petition for dissolution of marriage on January 26,
1994. One issue raised during the dissolution action was whether respondent, Eric Wildhagen, was
the legal father of a child conceived by artificial insemination and born during the marriage. The trial
court determined respondent is not the legal father of the child because he did not consent to the
artificial insemination of petitioner, as required by section 3 of the Illinois Parentage Act (Act) (750
ILCS 40/3 (West 1994)). Petitioner appeals and we affirm.
Petitioner and respondent were married in November 1990. In April 1992, petitioner and
respondent consulted with a nurse clinician at Christie Clinic regarding the procedure of artificial
insemination. At the consultation, respondent made it clear to petitioner and the nurse he did not
292

want to participate in, nor did he consent to, petitioner's attempts to become pregnant. Petitioner
acknowledges at the consultation respondent expressed his desire not to participate in her attempt to
have a baby, but alleges respondent said it would be all right if she pursued the pregnancy alone.
Whenever respondent had sexual relations with petitioner, he used a condom to prevent pregnancy.
Following the initial consultation at Christie Clinic, petitioner underwent seven artificial
insemination procedures. Respondent was not informed of this by Christie Clinic or by petitioner.
In approximately October 1993, petitioner became pregnant. In January 1994, she filed a petition for
dissolution of marriage. The petition stated no children were born during the marriage but petitioner
was pregnant. The complaint alleged petitioner did not have sufficient property and income to
provide for her reasonable needs or those of her unborn child. Petitioner sought custody of the
unborn child and asked the court to order respondent to pay reasonable sums for her maintenance,
support of the unborn child, and prenatal and delivery expenses.
On July 2, 1994, petitioner gave birth to a son, M.W. In September 1994, respondent filed a motion
for blood testing, which was allowed. Petitioner's attorney then notified respondent, in a letter dated
September 14, 1994, of the seven artificial insemination procedures, the last of which, the letter
stated, may have resulted in the conception of M.W. The parties and M.W. underwent blood testing
in November 1994. Respondent was conclusively excluded as M.W.'s biological father.
In February 1995, petitioner filed a motion for summary determination of a major issue (motion for
summary determination) under section 2-1005(d) of the Illinois Code of Civil Procedure (735 ILCS
5/2-1005(d) (West 1994)). In the motion, petitioner acknowledged respondent was not M.W.'s
biological father and had not given his written consent to her artificial insemination. Nonetheless,
petitioner asked the court to find respondent to be the legal father of M.W. within the meaning of
the Act (750 ILCS 40/3 (West 1994)). The court heard arguments on the motion for summary
determination and determined, under its interpretation of section 3 of the Act, respondent is not the
legal father of M.W.
Following this ruling, the parties executed a marital settlement agreement which reflected the court's
earlier decision and in which they set forth their agreements on the remaining issues. On August 4,
1995, the trial court entered a judgment of dissolution of marriage which incorporated the marital
settlement agreement, and entered a final order stating respondent is not the legal father of M.W.
Petitioner filed a timely notice of appeal and asks this court to reverse the trial court's determination
respondent is not the legal father of M.W.
The issue presented is whether, under section 3 of the Act, the lack of written consent by
respondent to petitioner's artificial insemination precludes the establishment of a father-child
relationship and the imposition of a support obligation.
Section 3(a) of the Act provides:
“(a) If, under the supervision of a licensed physician and with the consent of her husband, a
wife is inseminated artificially with semen donated by a man not her husband, the husband
shall be treated in law as if he were the natural father of a child thereby conceived. The
husband's consent must be in writing executed and acknowledged by both the husband and
wife. The physician who is to perform the technique shall certify their signatures and the
date of the insemination, and file the husband's consent in the medical record where it shall
293

be kept confidential and held by the patient's physician. However, the physician's failure to
do so shall not affect the legal relationship between father and child. All papers and records
pertaining to the insemination, whether part of the permanent medical record held by the
physician or not, are subject to inspection only upon an order of the court for good cause
shown.” (Emphasis added.) 750 ILCS 40/3(a) (West 1994).
Only one Illinois case has analyzed this provision of the Act. In In re Marriage of Adams, 174
Ill.App.3d 595, 610-11, 124 Ill.Dec. 184, 193, 528 N.E.2d 1075, 1084 (1988), rev'd on other
grounds, 133 Ill.2d 437, 141 Ill. Dec. 448, 551 N.E.2d 635 (1990), the Second District Appellate
Court decided the failure to obtain the husband's written consent does not bar further inquiry into
the circumstances surrounding the decision to use the artificial insemination procedure. The court
examined the surrounding circumstances in the case and, although the husband had not executed a
written consent to his wife's artificial insemination, agreed with the trial court's finding he had
manifested his consent by his conduct before, during, and after the pregnancy. Adams, 174
Ill.App.3d at 615, 124 Ill. Dec. at 196, 528 N.E.2d at 1087. The court concluded nothing in section 3
bars the imposition of a support obligation on an estoppel or waiver theory where written consent is
not obtained. Thus, the court imposed a support obligation on the husband, who had manifested
actual consent to the procedure by his conduct. In Adams the court found the husband consented to
the procedure. In this case respondent did not consent to the artificial insemination procedure,
either in writing or in any other manner.
After the appellate court decision in Adams, the Supreme Court of Illinois reviewed the case but,
because it determined Florida law was controlling and remanded the case, the court did not render a
conclusive interpretation of section 3 of the Act. In re Marriage of Adams, 133 Ill.2d 437, 141 Ill.
Dec. 448, 551 N.E.2d 635 (1990). In a cursory discussion of both section 3 of the Act and the
applicable Florida statute, the court stated, “we note that the provision in the Illinois statute that the
husband's consent * * * ‘must be in writing’ could be considered a mandatory requirement for
establishing a parent-child relationship pursuant to the statute.” (Emphasis added.) Adams, 133
Ill.2d at 444, 141 Ill. Dec. at 451, 551 N.E.2d at 638. The court went on to note:
“[I]t is not clear whether under either statute the failure to provide written consent will
preclude both the establishment of a parent-child relationship and the imposition of a
support obligation. It may be the case that a support obligation will be found even in the
absence of a parent-child relationship.” (Emphasis added.) Adams, 133 Ill.2d at 445, 141 Ill.
Dec. at 451, 551 N.E.2d at 638.
The court in Adams was considering only the possible effects of the failure to obtain written
consent. It did not indicate the consent requirement could be waived entirely. Adams, 133 Ill.2d at
444, 141 Ill. Dec. at 451, 551 N.E.2d at 638.
Petitioner argues the language of the statute indicates respondent's written consent is not a
prerequisite to the establishment of a father-child relationship. Her argument focuses on the
following language: “the physician's failure to do so shall not affect the legal relationship between
father and child.” 750 ILCS 40/3(a) (West 1994). This language appears immediately after the
description of the physician's duties of certifying the signatures of the husband and wife and the date
of insemination and filing the husband's consent in the medical record. Petitioner contends,
however, the quoted language means “the physician's failure to obtain the consent shall not affect
the legal relationship between father and child.” (Emphasis added.) The plain language and
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structure of the statute does not lend itself to such a reading, nor do we believe this interpretation is
what the legislature intended.
The first sentence of section 3 of the Act provides, “[i]f, under the supervision of a licensed
physician and with the consent of her husband, a wife is inseminated artificially with semen donated
by a man not her husband, the husband shall be treated in law as if he were the natural
father.” (Emphasis added.) 750 ILCS 40/3(a) (West 1994). The Act then states, “[t]he husband's
consent must be in writing.” 750 ILCS 40/3(a) (West 1994). Following these statements is the
explanation of what the duties of the physician performing the procedure are in terms of
documenting the husband's consent, and the statement which provides, “the physician's failure to do
so shall not affect the legal relationship between father and child.” (Emphasis added.) 750 ILCS
40/3(a) (West 1994). This language refers to the physician's failure to certify and document the
consent in accordance with the statute and cannot be interpreted as obviating the consent
requirement.
We conclude the legislature intended a husband's written consent to be a prerequisite to the
establishment of the legal father-child relationship and the imposition of a support obligation. The
several provisions in section 3 of the Act which address the consent requirement would be
superfluous if the failure to obtain the husband's written consent would not affect the legal status of
the individuals involved.
In addition, because the statute requires the physician to certify the date of insemination, we
conclude the husband's written consent is required each time his wife is to undergo the procedure.
750 ILCS 40/3(a) (West 1994). Such a requirement is not burdensome and it leaves no room for
confusion on the part of the married couple or the physician regarding whether a consent previously
given by the husband is still viable.
On the facts of this case, we need not decide whether the failure to obtain written consent would be
an absolute bar to the establishment of a father-child relationship where the conduct of the father
otherwise demonstrated his consent to the artificial insemination procedure. Such a situation was
present in Adams and has also been addressed by commentators and the courts of other states.
(citations omitted).
Here, there is no evidence of consent by respondent to the artificial insemination procedure, written
or otherwise. Petitioner filed for a dissolution of marriage within two or three months of becoming
pregnant. She was impregnated by the sperm of a man other than respondent, without respondent's
knowledge or consent, and apparently without any intention of raising the child with respondent. In
her brief, petitioner admits she underwent the procedure relying on her doctor's written assurance
respondent would be legally responsible for her child, even though it was not his wish she have a
child. There is no evidence in the record of any contact or interaction between respondent and
M.W., and petitioner had M.W.'s last name legally changed to her maiden name. Under the facts of
this case, there is no statutory or equitable basis for concluding a father-child relationship exists
between respondent and M.W.
Petitioner urges this court to impose a support obligation on respondent, even absent the existence
of a father-child relationship, contending any other result would be contrary to public policy. The
two primary policy considerations here are (1) M.W.'s right to support, and (2) respondent's right to
choose not to be a parent.
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Just as a woman has a constitutionally protected right not to bear a child (see Roe v. Wade, 410 U.S.
113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)), a man has the right not to be deemed the parent of a
child that he played no part in conceiving. Respondent made a choice not to parent a child. This
choice was evidenced by not giving his consent to petitioner or any support to her choice to
undergo artificial insemination. Petitioner underwent the procedure unbeknownst to respondent.
Respondent was only informed of the manner in which M.W. was conceived after M.W. was born,
by his attorney. This is not a case where respondent has changed his mind or is attempting to evade
responsibility for his own actions in helping to conceive or encouraging the conception of a child.
The facts of this case illustrate, and the trial court correctly determined, it would be inconsistent with
public policy to force upon respondent parental obligations which he declined to undertake.
The second policy consideration here is M.W.'s right to support. The main purpose of the policy
recognizing a child's right to support is to prevent minors from becoming dependent on the State.
Fink v. Roller, 113 Ill.App.3d 1084, 1089, 69 Ill. Dec. 744, 747, 448 N.E.2d 204, 207 (1983). The trial
court's order demonstrates it considered M.W.'s need for support and found that support would be
forthcoming from his mother. The child's right to support cannot be met by requiring a nonparent
to fulfill the obligation of a parent. Respondent has no financial obligation to this child.
It is the duty of the court to ensure the rights of the child are adequately protected. In this case, the
trial court did so, and the balance it struck between the attendant interests of the parties was
appropriate. It would be unjust to impose a support obligation on respondent where no father-child
relationship exists between him and M.W. and he did not consent to the artificial insemination
procedure. Accordingly, we affirm.
Affirmed.
Notes and Questions
1. Should the best interests of the child outweigh the man’s decision not to be a parent?
2. If the child had been conceived by sexual intercourse, the outcome of the case may have been
different. The man had sexual relations with his wife and the child was conceived during the
marriage. Based upon the marital presumption, he would have been presumed to be the father of the
child. In some jurisdictions, the man would not have been permitted to rebut the presumption
unless it was in the child’s best interests to do so. It would not be in the child’s best interests unless
another man was willing and able to parent the child. Is it fair that a child conceived by artificial
insemination is given less protection than a child conceived by natural insemination?
3. In deciding whether to require the man to pay child support, should the court give more
consideration to the financial needs of the child?
4. From a public policy perspective, is the Witbeck case wrongly decided? If the woman cannot
financially support the child, the child will have to be taken care of by the government. Is that fair to
the tax payers if the man has the financial resources to provide for a child conceived during his
marriage?

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6.5

The Paternity of the Sperm Donor

6.5.1

The Sperm Donor is not the Legal Father

Lamaritata v. Lucas, 823 So. 2d 316 (Fla. Dist. Ct. App. 2002)
BLUE, Chief Judge.
Although the parties raise numerous issues on appeal and cross-appeal, this is a simple case that can
be resolved in a one-sentence opinion, to wit: Danny A. Lucas is a sperm donor, not a parent, and
has no parental rights; thus the court erred in establishing a visitation schedule. Unfortunately for
the parties, it does not appear that the attorneys ever seemed to understand this principle and thus
assisted the trial court to the ruling we reverse. There has been protracted, unnecessary litigation in
this case, including a prior visit to this court which should have ended the controversy.
In 1998, on certiorari review of an order for paternity tests in a paternity action brought by Danny
A. Lucas against Lori A. Lamaritata, this court issued a clear mandate for the trial court to determine
the applicability of the sperm donor statute and the validity of the parties' contract before
proceeding on any issues regarding the rights of Mr. Lucas vis-a-vis the children of Ms. Lamaritata.
Mr. Lucas had convinced the trial court to order paternity tests so that he might avoid the cost of
litigation if he was not actually the biological father of Ms. Lamaritata's children. Despite the dictates
of this court's opinion, the parties returned to the trial court, stipulated to paternity testing, then
litigated issues regarding visitation, child support, and the best interests of the children. Because the
parties and the trial court failed to heed this court's decision, they have suffered the exact harm they
feared by unnecessarily litigating issues that are not relevant to the core issue in this case.
Ms. Lamaritata appeals a supplemental final judgment that grants to Mr. Lucas (1) unsupervised,
overnight visitation on alternating weekends and visitation on the day after Christmas and on
Father's Day; (2) telephone calls from the children when they are with their mother; and (3) the right
to confer with the children's teachers and attend school events and activities. At the same time, the
supplemental final judgment held that Mr. Lucas was foreclosed from all parental rights except those
set forth above and foreclosed from bringing the paternity action. The trial court also denied Ms.
Lamaritata's motion to escrow child support, which she sought to protect the children's right to
support in the unlikely event Mr. Lucas was given parental rights. A brief statement of the pertinent
facts was set forth in this court's prior opinion.
D.A.L. (donor) and L.A.L. (recipient) entered into a contract whereby the donor would provide
sperm to recipient with the expectation that she would become pregnant through artificial
insemination and deliver offspring. The agreement provided that if childbirth resulted, the donor
would have no parental rights and obligations associated with the delivery, and both parties would
be foreclosed from establishing those rights and obligations by the institution of an action to
determine the paternity of any such child or children. Notwithstanding the clear language of the
contract, after the recipient gave birth to twin boys the donor filed an action in circuit court seeking
to establish paternity and an award of those rights associated with it. In defense of the action, the
recipient alleged that the contract barred such an action, that section 742.14, Florida Statutes (1997),
disallowed sperm donors any parental rights, and that the donor was not in fact the biological father
of the children.
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L.A.L. v. D.A.L., 714 So.2d 595, 596 (Fla. 2d DCA 1998). This court quashed the order for
paternity testing and directed the circuit court to proceed in a manner consistent with this court's
opinion.
In the opinion, after considering the express language of section 742.14, Florida Statutes (1997),77
this court held: “Should the trial court decide that this statute is constitutionally applicable to the
facts in the underlying litigation, the donor, whether or not he is scientifically determined to be the
biological parent of these boys, will be foreclosed from all parental rights, including his access to the
children.” 714 So.2d at 596 (emphasis added). Likewise, after considering the express language of
the parties' contract, this court held that “if the clear intent of the parties to this agreement is
enforced by the trial court,” Mr. Lucas waived his right to institute a paternity proceeding. 714 So.2d
at 597.
In an attempt to avoid application of the statute, Mr. Lucas now argues that he is not a sperm donor.
Sperm donor is not defined in the statute. The contract, however, calls Mr. Lucas “donor” and
indicates that sperm is the only donation required of him. Thus we easily conclude that Mr. Lucas
qualifies as a sperm donor.
We just as easily reject Mr. Lucas's argument that he and Ms. Lamaritata constitute a
“commissioning couple.” Commissioning couple is defined in the statute as “the intended mother
and father of a child who will be conceived by means of assisted reproductive technology using the
eggs or sperm of at least one of the intended parents.”§ 742.13(2). There are no facts to show that
Mr. Lucas and Ms. Lamaritata have any type of relationship that would fall under the rubric of
“couple.” Further, they did not commission or contract to jointly raise the children as mother and
father. Rather, they joined forces solely for the purpose of artificially inseminating Ms. Lamaritata,
an intent clearly set forth in the parties' contract.
A person who provides sperm for a woman to conceive a child by artificial insemination is not a
parent. Both the contract between the parties and the Florida statute controlling these arrangements
provide that there are no parental rights or responsibilities resulting to the donor of sperm. See §
742.14. If the sperm donor has no parental rights, the sperm donor is a nonparent, a statutory
stranger to the children.
Even though the parties entered into subsequent stipulations, purportedly to give visitation rights to
this nonparent, we conclude that agreement is not enforceable. There are numerous Florida cases
holding that nonparents are not entitled to visitation rights. See, e.g., O'Dell v. O'Dell, 629 So.2d 891,
891 (Fla. 2d DCA 1993) (reversing visitation for a divorced man and his stepson, noting that “[t]his
court has repeatedly reversed orders giving visitation rights to nonparents”); Kazmierazak v. Query,
736 So.2d 106, 106 (Fla. 4th DCA 1999) (holding that “psychological parent” was not entitled to
custody or visitation); Meeks v. Garner, 598 So.2d 261 (Fla. 1st DCA 1992); cf. Lonon v. Ferrell, 739
So.2d 650, 652 (Fla. 2d DCA 1999) (holding that biological grandparents were “statutory strangers”
to children following their adoption by stepfather; statute authorizing grandparent visitation violated
77 Section 742.14 provides in pertinent part: “The donor of any egg, sperm, or preembryo, other than the commissioning

couple or a father who has executed a preplanned adoption agreement under s. 63.212, shall relinquish all maternal or
paternal rights and obligations with respect to the donation or the resulting children.”

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parent's constitutional right to privacy). Contracts purporting to grant visitation rights to nonparents
are unenforceable. Taylor v. Kennedy, 649 So.2d 270, 271-72 (Fla. 5th DCA 1994) (“Florida courts do
not recognize a claim for specific performance of a contract for visitation in favor of a nonparent.”). Therefore, pursuant to the contract's severability clause, we sever the unenforceable
portion of the contract purporting to give visitation rights to Mr. Lucas.
The sperm donor here has no legal parental rights, and this case should have been dismissed after
our prior opinion. Accordingly, we reverse the supplemental final judgment and remand to the trial
court for the entry of a final judgment declaring that Mr. Lucas has no enforceable parental rights.
Reversed and remanded with directions.
Questions
1. Should known sperm donors be treated differently from anonymous sperm donors? Why? Why
not?
2. Should the sperm donor be treated as if he has no parental rights? Should the court recognize the
sperm donor’s parental rights and force him to waive them?
3. If a single woman is inseminated with donor sperm, should the donor have a duty to support the
child if something happens to the woman when the child is under the age of majority? In order to
prevent the child from becoming an orphan, should a single woman be required to appoint a
guardian for the child prior to being artificially inseminated?
6.5.2

The Sperm Donor May Be the Legal Father

Shultz v. Shultz, 923 A.2d 473 (Pa. Super Ct. 2007)
KELLY, J.
These unconsolidated appeals lie from two orders, denying respectively Appellant's complaint,
lodged in York County, for sole legal and primary physical custody of the parties' four children, and
her motion to join the biological father of two of the children in Dauphin County proceedings to
resolve Appellee's complaint for child support. We affirm in part and vacate and remand in part, and
hold that, in the circumstances of this case, the doctrine of equitable estoppel governs the financial
obligation of a sperm donor to support children in whose lives he is involved.
Beginning in 1996, the parties lived together in York County for approximately nine years, during
which period they underwent a commitment ceremony in Pittsburgh, and entered into a civil union
in Vermont. Of the children who are the subjects of these actions, two, A.J. and L.J., are nephews of
Appellee's whom she has adopted. The remaining two, Co.J. and Ca.J., are Appellee's biological
children by Appellee Carl Frampton, a long-time friend of Appellant's. At her instigation he agreed
to act as sperm donor, and has been involved in the children's lives since their birth.
In February of 2006, after several months during which the parties continued to reside together
despite separation as a couple, Appellee relocated with the children from York County to Dauphin
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County. Shortly after Appellee's departure, Appellant, naming both Appellee and Appellee Carl
Frampton as defendants, sought full legal and physical custody of all four children in the York
County Court. At the conclusion of a conciliation conference on March 20, legal and primary
physical custody of all the children were temporarily awarded to Appellee with partial physical
custody in Appellant. Although Appellant was awarded no legal custody rights, Appellee Frampton
received shared legal and physical custody of Ca.J. and Co.J. Appellant's subsequent petition for
special relief was denied on March 23. However, at some point soon thereafter, Appellee voluntarily
relinquished L.J. to Appellant's care, and began providing a stipend for his support.
On April 3, Appellee filed a complaint in Dauphin County seeking child support from Appellant for
Ca.J. and Co.J., and was awarded approximately $983 per month. Appellant appealed seeking de
novo review on the basis that Appellee Frampton was essentially a third parent to Co.J. and Ca.J.,
and as such was obligated to contribute to their financial support. Although Appellant had failed to
file a formal joinder request prior to the support hearing, she was permitted to do so afterwards.
Following the court's receipt of the formal request and Appellee's response, joinder was denied on
July 31.
The custody litigation was resolved on the second day of a two day trial held on August 1 and 2,
when the trial court, ruling from the bench, awarded shared legal custody of all four children to the
parties. Appellant received primary physical custody of L.J. only, with partial physical custody as to
him in Appellee, who was awarded primary physical custody of the other three children, with partial
custody in Appellant. Appellee Frampton was awarded partial physical custody, one weekend a
month, of Co.J. and Ca.J.
Appellant has filed appeals from both the custody and support orders. Although presenting separate
issues, the anomalous circumstances of these actions present basic and interrelated questions
concerning the parental rights and responsibilities both of Appellant and of Appellee Frampton
given the parties' recognition of her in loco parentis status, as well as his standing as a biological
parent.
In her appeal from the support order, Appellant has ostensibly raised three claims concerning the
court's denial of her joinder motion. Two of these are, in fact, aspects of the same contention, that
Appellee Carl Frampton, having, as the biological father of Co.J. and Ca.J. a prima facie right to
custody, for the same reason also has the obligation to contribute to their support. That being so,
the trial court erred in denying the motion to join him as an indispensable party. As a coda to her
primary contention, Appellant argues that the biological mother's failure/unwillingness to pursue
support claims against the biological father is irrelevant, and since all of the three persons involved
in these matters have been awarded formal rights of custody, all three are obligated to provide
support.
Our standard and scope of review in child support cases is narrow. We will not disturb a child
support order absent an abuse of discretion. An abuse of discretion occurs if insufficient evidence
exists to sustain a support award, if the trial court overrides or misapplies existing law, or if the
judgment exercised by the trial court is manifestly unreasonable. L.S.K. v. H.A.N., 813 A.2d 872, 876
(Pa.Super.2002) (citations and quotation marks omitted).
“An indispensable party is one whose rights or interests are so pervasively connected with the claims
of the litigants that no relief can be granted without infringing on those rights or interests.” Hubert v.
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Greenwald, 743 A.2d 977, 979 (Pa.Super.1999), appeal denied, 563 Pa. 688, 760 A.2d 854 (Pa.2000).
The basic inquiry in determining indispensability concerns whether, in the absence of the person
sought to be joined, justice can be done. Id. at 980. Analysis of this claim requires reference to both
the nature of the claim and the requested remedy. Id.
In finding that because Appellee Frampton is not obligated to provide child support he is thus not
indispensable, the trial court relies on two case authorities. The first, L.S.K., supra, explores the
financial responsibility of a lesbian partner in a long term relationship where a sperm donor, in that
case anonymous, fathered a child to the other partner. Support was not sought from the biological
father, who had relinquished all parental rights.
The Court found that the biological mother was owed support by her partner, who had exercised
custodial rights on the basis of her in loco parentis status. The duty, however, was not to be derived
from the Domestic Relations Code, 23 Pa. C.S.A. § 4321(2), governing liability for support of minor
children. Rather, the obligation stemmed from principles of equitable estoppel, which “applies to
prevent a party from assuming a position or asserting a right to another's disadvantage inconsistent
with a position previously taken.” L.S.K., supra at 877 (citations and quotation marks omitted).
Reduced to its essence, the doctrine is one of “fundamental fairness, designed to preclude a party
from depriving another of a reasonable expectation when the party inducing the expectation albeit
gratuitously knew or should have known that the other would rely on that conduct to his
detriment.” Id. Thus the trial court in this case held that Appellant, having “asserted custodial rights
in relation to [the children], is [ ] obligated under an equitable theory to provide for their
support.”(Trial Ct. Op., 11/21/06, at 6).
In two basic respects, this case differs from L.S.K.: first, Appellant does not deny her own
responsibility to support the children; rather, her focus is on the omission of any similar obligation
assigned to Appellee Frampton, who, if he has not “asserted custodial rights” by petitioning for
them, has sought them informally, and has in no way declined the award of custody. However,
L.S.K. provides a matrix in which the critical question in this case arises: if fundamental fairness
prevents Appellant, identified by law as a third party, from avoiding a support obligation arising
from her status as a de facto parent, and she does not, in any event, attempt such an avoidance, does
not the same principle operate similarly to estop Appellee Frampton, automatically recognized as the
possessor of parental rights based on his biological parenthood, from disclaiming financial
responsibility? We find that it does. His obligation is, in fact, statutorily imposed as “[p]arents are
liable for the support of their children who are unemancipated and 18 years of age or younger.” 23
Pa. C.S.A. § 4321(2). As the Court in L.S.K., supra at 877, has opined, stepparents who have held a
child out as their own are liable for support; biological parents who have exercised the rights
appurtenant to that status can be no less bound. Thus the trial court's conclusion that Appellant's
obligation is established by L.S.K. is not incorrect, only incomplete.
Further, Appellee Frampton has himself anticipated his obligation by providing support to Co.J. and
Ca.J. since their births, having contributed “in excess of $13,000” in the last four years, (N.T.,
8/2/06, at 217), $3,000 of it during the six months preceding the custody trial (Id. at 222); and
having borrowed money to provide the parties with a vehicle suited to transporting the children.
(Id.). While these contributions have been voluntary, they evidence a settled intention to
demonstrate parental involvement far beyond the merely biological. Further, in addition to having
been awarded partial custody, Appellee was present at the birth of Co.J. (id. at 20); has expressed an
interest in relocating closer to the children's home to facilitate both his court ordered monthly partial
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custody and further contact, which, in fact, already occurs (id. at 235, 216); and has encouraged the
children to call him “Papa.” (Id. at 216). If Appellee expresses a need for funds or household items,
he supplies them (id. at 222), as well as clothing and toys for the children. (Id. at 223). Such constant
and attentive solicitude seems widely at variance with the support court's characterization of
Appellee Frampton's having “played a minimal role in raising and supporting” the children. (Trial
Ct. Op., 11/21/06, at 2). We find that under such circumstances, the principle which serves to
confirm Appellant's obligation operates in the same manner as to Appellee Frampton's.
To address the latter, the trial court finds relevant this Court's decision in Ferguson v. McKiernan, 855
A.2d 121 (Pa.Super.2004). There the biological mother sought child support from the biological
father, her co-worker and former lover, despite having assured him on several occasions that he
would have no parental status or obligation. Although recognizing the mother's reprehensible
conduct toward the biological father, as well as toward her husband, who filed for divorce on the
same day artificial insemination was performed, the Court found a duty of support to be owed by
the biological father on grounds that the parties could not bargain away the right of support which
accrued not to them but to the children.
The trial court here, which seems erroneously to regard Appellant's desire to join Appellee
Frampton as an attempt to escape financial liability altogether, found that appearances
notwithstanding, Ferguson does not support Appellant's position, as she was already liable for
support under the ruling in L.S.K. The court also attempted to distinguish Ferguson on several
bases: specifically, the biological mother there was in the process of divorce and had once been
romantically attached to the sperm donor, while the children here were born into an intact family to
persons who intended to cooperate in rearing them.
The distinctions drawn by the trial court to support its theory of inapplicability seem less persuasive
than distinctions which tend in the opposite direction. Contrary to the trial court's assertion that
Appellee Frampton, “like the sperm donor in Ferguson who also did not assert or seek parental
rights,” (Trial Ct. Op., 11/21/06, at 6) (emphasis added), rather than remaining detached from the
children, he became, voluntarily, indeed, enthusiastically, an integral part of their lives. Most
pertinently, the court found that Appellee Frampton made no agreement as to the children's support
as there was no need for him to do so-two parents were already available to provide the support.
This last point is in fact the crux of the court's rationale: “to hold [Appellee] Frampton liable for
support would create a situation in which three parties/parents would be liable for support.” (Trial
Ct. Op. at 7). In the trial court's view the interjection of a third person in the traditional support
scenario would create an untenable situation, never having been anticipated by Pennsylvania law. We
are not convinced that the calculus of support arrangements cannot be reformulated, for instance,
applying to the guidelines amount set for Appellant fractional shares to incorporate the contribution
of anther obligee. As the Court in L.S.K., supra, has held, in another anomalous situation:
We recognize this is a matter which is better addressed by the legislature rather than the courts.
However, in the absence of legislative mandates, the courts must construct a fair, workable and
responsible basis for the protection of children, aside from whatever rights the adults may have vis a
vis each other. Id. at 878.
Accordingly, we affirm the award of custody, vacate the award of support, and remand to the trial
court with directions that Appellee Frampton be joined as an indispensable party for a hearing at
which the support obligation of each litigant is to be recalculated.
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Custody order affirmed. Support order vacated and case remanded with instructions. Jurisdiction is
relinquished.
Sample Statutes
Ga. Code Ann., § 53-2-5 Rights of inheritance of and from individual conceived by artificial
insemination
An individual conceived by artificial insemination and presumed legitimate in accordance with Code
Section 19-7-21 shall be considered a child of the parents and entitled to inherit under the laws of
intestacy from the parents and from relatives of the parents, and the parents and relatives of the
parents shall likewise be entitled to inherit as heirs from and through such individual.
C.G.S.A. § 45a-777 (Connecticut)Inheritance by child conceived as a result of A.I.D
(a) A child born as a result of A.I.D. may inherit the estate of his mother and her consenting spouse
or their relatives as though he were the natural child of the mother and consenting spouse and he
shall not inherit the estate from his natural father or his relatives.
(b) The mother and her consenting husband or their relatives may inherit the estate of a child born
as a result of A.I.D., if the child dies intestate, and the natural father or his relatives shall not inherit
from him.
C.G.S.A. § 45a-778 (Connecticut)Words of inheritance to apply to child conceived through
A.I.D
(a) The words "child", "children", "issue", "descendant", "descendants", "heir", "heirs", "unlawful
heirs", "grandchild" and "grandchildren", when used in any will or trust instrument, shall, unless the
document clearly indicates a contrary intention, include children born as a result of A.I.D.
A.C.A. § 28-9-209 (Arkansas) Children as legitimate
(c) Any child conceived following artificial insemination of a married woman with the consent of her
husband shall be treated as their child for all purposes of intestate succession. Consent of the
husband is presumed unless the contrary is shown by clear and convincing evidence.
Class Discussion Tools
1. Pedro and Sandra got married. Afterwards Pedro decided that he did not want to have children,
so he had a vasectomy performed on him. Sandra threatened to file for divorce if Pedro did not
agree to help her have a child. Pedro admitted to Sandra that he did not want children because he
was afraid that any child he conceived would inherit his genetic disorder. To keep the peace, Pedro
accompanied Sandra to the fertility clinic. Pedro helped select a sperm donor that had features
similar to his. In preparation for the pregnancy, Sandra quit her job. Pedro drove Sandra to all of
her medical appointments before and after the conception of the child. After the child was born,
Pedro realized that he did not want to raise another man’s child. He shared his concerns with
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Sandra. As a consequence, Sandra filed for divorce. While the divorce was pending, Pedro was
killed in a car accident. If Pedro died intestate in the state of Connecticut, would the child be
eligible to inherit from his estate? What would be the result if Pedro died in the state of Arkansas?
2. Paul and his wife Maggie decided that they wanted to conceive a child using artificial
insemination. Paul’s sperm count was low, so they had to use donor sperm. They went to the New
Love Fertility Clinic. Paul wrote a $5,000 check to the fertility clinic from his checking account. In
the memorandum section of the check, Paul wrote, “to finance the creation of a child I will raise
with my wife, Maggie.” Maggie started receiving treatment a few days after the clinic cashed Paul’s
check. Prior to the conception of a child, Paul and Maggie had a fight. In response, Paul sent
Maggie a text message stating that he no longer wanted to raise a child with her. It is unclear
whether or not Maggie received the message. Nonetheless, Maggie continued treatments and
conceived a child through the use of artificial insemination. Paul does not want to take any
responsibility for the child. If the jurisdiction has the following statute, is Paul the legal father of the
child? “A man who provides sperm for, or consents to, assisted reproduction by a woman with the
intent to be the parent of her child, is a parent of the resulting child.”
6.6

Children Conceived Through Surrogacy Arrangements

In the previous two sections of this chapter, the focus has been on paternity. This section is
unique in that it tackles the issue of the legal status of the women involved in a surrogacy
arrangement. The cases presented in this section deal with the right of a child created as the result
of a surrogacy arrangement to inherit from his or her mother. As previously indicated, the child’s
right to inherit is determined by the existence of a parent-child relationship. In the case of children
conceived as a result of surrogate agreements, the inheritance rights of those children is based upon
the recognition of the mother-child relationship. The main issue becomes: Who is the legal mother
of a child resulting from a surrogacy arrangement—the surrogate or the contracting woman.
6.6.1

The Possibility of Inheriting From the Woman

In order for a child created as the result of a surrogacy arrangement to have the opportunity
to inherit from a woman, that woman must be deemed to be the child’s legal mother. In some
cases, that woman may be the woman acting as the surrogate. In other cases, that woman may be
the woman who contracted to have the child created. Courts have adopted several different tests to
determine the identity of the legal mother of a child conceived as the result of a surrogacy
arrangement. These tests are illustrated in the next few cases.
6.6.1.1 The Genetics/Blood Test

Belsito v. Clark, et al., 644 N.E. 2d 760 (C.P. Ct. Oh. 1994)
SPICER, Judge.
Findings of Fact
Plaintiffs, Anthony and Shelly Belsito, were married September 26, 1992. They decided they wanted
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a large family. Unfortunately, approximately one month prior to their marriage, Shelly had to
undergo a hysterectomy as a result of recently discovered cervical cancer. Her physician had to
remove her uterus, but was able to save her ovaries so that she could continue to produce eggs.
Carol S. Clark is Shelly's younger sister. Around the same time as Shelly's hysterectomy, Carol gave
birth to her third child. Carol knew how much having a family meant to Shelly and Tony so, at that
time, Carol told Shelly that, if she could, she would carry Shelly and Tony's baby for them.
In October 1993, Shelly and Tony were accepted into the University Hospitals' program for in vitro
fertilization, Shelly and Tony as the genetic parents and Carol as the surrogate host. Carol was to
receive no compensation for her role as a surrogate for Shelly and Tony's baby. Carol testified that
she planned to be no more than an aunt to the child.
Dr. Leon Sheean is the Director of the Laboratories for In Vitro Fertilization and Andrology at
University Hospitals of Cleveland, MacDonald Hospital for Women (“MacDonald Hospital”). Since
he became the director in January 1990, Dr. Sheean has overseen all in vitro fertilization and
andrology procedures in the laboratory, has established the policies in place at the hospital, and has
been responsible for maintaining records of the events and patients that are treated within the
program.
Dr. Sheean testified as to the policies, procedures, and routines followed at MacDonald Hospital in
reference to the in vitro fertilization program. Dr. Sheean testified in great detail as to the
procedures involved, and the methods of quality control used to ensure that the fetus is the result of
the genetic parents and that it is placed in the proper surrogate, resulting in “one-hundred percent
certainty” that the child is the biological and genetic child of the infertile couple.
Pursuant to the policies of the in vitro fertilization program, there are several checks and balances to
ensure the propriety of the eggs and the sperm. First, the frequent visits to the hospital during the
evaluation and the treatment stages allow the staff at the lab to establish a conversive relationship
with the parties, and to identify them by sight. Second, all the containers used in the process are
clearly labeled prior to the cells' being placed into the container. The petri dishes are labeled and
color-coded with a color that is unique to that patient.
All the foregoing procedures were followed in the Belsito case. In addition, Shelly, Tony, and Carol
signed separate consent forms to participate in the program. Within these documents, the parties
consented to their status within the program. The consent form signed by Carol Clark described her
as a “carrier.” The consent form signed by Shelly and Tony designated them as the “mother” and
“father” of the child.
In approximately January 1994, Shelly and Carol began the process of preparing for the procedure.
Prior to the planned embryo transfer, Shelly and Carol began taking various medications to align
their fertility cycles and prepare their bodies for the procedure. In addition, Carol testified that she
abstained from sexual intercourse for at least two months prior to the procedure and at least two
weeks after the procedure.
On February 10, 1994, Shelly Belsito was admitted to MacDonald Hospital for the retrieval of the
eggs from her ovaries. A total of ten eggs was recovered from Shelly. Tony's sperm was collected in
a labeled container, washed, and added to the eggs. On February 12, 1994, Carol Clark was admitted
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to MacDonald Hospital for transfer of the embryos into her uterus. The two fertilized eggs were
transferred into Carol's uterus by her physician. Shelly was also present at the transfer.
Approximately two weeks after the transfer, the parties went to the hospital for a pregnancy test. At
that time, it was confirmed that one of the two embryos did attach. Carol was carrying Shelly and
Tony's child.
According to expert testimony of Dr. Sheean, the fetus placed in the carrier sets up an entirely
separate system from the carrier. The uterus provides only a means of nourishment to and a means
of carrying waste away from the baby's system. The uterus provides a “filtering system” for the
child. Blood between the carrier and the fetus is not exchanged during the pregnancy, absent some
complication. According to the opinion of Dr. Sheean, there would be no genetic or blood tie to the
surrogate host.
Dr. Sheean expressed his opinion that the unborn child carried by Carol Clark was genetically the
child of Anthony and Shelly Belsito, and that Carol Clark as a surrogate would contribute none of
the DNA that would ultimately make up the genetics of the unborn child.
The parties knew that the baby was a boy, and planned on naming him Nicholas Anthony Belsito.
The original due date for the child was calculated to be November 14, 1994. However, Carol was
scheduled to undergo a Caesarean section on October 12, 1994, at Akron City Hospital. Shelly and
Tony planned on being at Nicholas's birth. Shelly was also planning to nurse Nicholas.
In preparing for Nicholas's birth, Shelly spoke with Akron City Hospital regarding the birth
certificate. She was told that, according to Ohio law, the woman who gave birth to the child will be
listed on the birth certificate as the child's mother. Further, she was told that because Carol, the
surrogate, and Tony, the genetic and biological father, are not married, the child will be considered
illegitimate, and will be listed on his birth records as “Baby Boy Clark” and not as “Baby Boy
Belsito.”
As a result of that information, Anthony and Shelly Belsito filed a complaint for declaratory
judgment with the court on September 14, 1994. A hearing was held on September 27, 1994. From
that declaratory judgment and the hearing, the Belsitos have requested this court to declare that it is
unnecessary for them to adopt the child now carried by Carol Clark. They contend that they are the
genetic and natural parents of that child and are therefore entitled to be recognized as having the
legal status of parents. In addition, they have requested that the court order the preparer of the birth
certificate to reflect the legitimate status of the child and the Belsitos' status as the legal and natural
parents of the child.
Conclusions of Law
The central question of the declaratory judgment action before the court is, who is to assume the
legal status of natural parents of the unborn child carried by Carol S. Clark?
Under the foregoing findings of fact, the court must conclude that Carol S. Clark is the gestational
surrogate, and the genetic makeup of the child she carries has been determined by the egg and the
sperm of Shelly Belsito and Anthony Belsito. The court is of the opinion that the law requires that,
because Shelly Belsito and Anthony Belsito provided the child with its genetics, they must be
designated as the legal and natural parents.
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The analysis and law in support of that conclusion begin with the proposition that the law will
impose the duties of a child-parent relationship and legal status of natural parents only upon those
individuals who can be found to be a natural or adoptive parent. State v. Barger (1920), 14 Ohio App.
127, 129; Angel v. Angel (C.P.1956), 74 Ohio Law Abs. 531, 533-534, 2 O.O.2d 136, 137, 140 N.E.2d
86, 87. See, also, Burlington Cty. Welfare v. McClain (1983), 189 N.J.Super. 152, 458 A.2d 1348; Brummitt
v. Kentucky (Ky.App.1962), 357 S.W.2d 37.
Since plaintiffs, Anthony Belsito and Shelly Belsito, have alleged that they are the natural parents and
not subject to the adoption laws of this state, the analysis of the law must be confined to the
question of what constitutes or identifies a “natural parent.”
While various terms are used to identify a natural parent, a review of case law leads to the conclusion
that “natural parent” refers to the child and parent being of the same blood or related by blood.
Owens 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.
3111.09. Black's Law Dictionary defines “blood relations” as: “Kindred; consanguinity; family
relationship; relation by descent from a common blood ancestor. A person may be said to be ‘of the
blood’ of another who has any, however small a portion, of the blood derived from a common
ancestor * * *.” Black's Law Dictionary (6 Ed.Rev.1990) 172.
In modern terminology, blood relationship would be described as shared DNA or genetics. Support
for the contention that genetic relationship is the modern equivalent of the term “blood
relationship” can be found in the evidentiary practice in disputed parentage cases of comparing
common biological characteristics. The practice involves the trier of fact's comparing genetic traits
of the child and the alleged parent, such as facial features, build, and color of hair and eyes, to
confirm or rebut a blood relationship. Domigan v. Gillette (1984), 17 Ohio App.3d 228, 17 OBR 494,
479 N.E.2d 291, paragraph two of the syllabus. Further support may be found in the fact that
comparison of the blood of both parent and child for a genetic or DNA resemblance has become a
recognized means of establishing parentage. See R.C. 3111.09.
Historically and at common law, blood relation was the primary means of establishing the legal
status of a natural parent. 1 Blackstone, Commentaries on the Laws of England (7 Ed.1775),
Chapter XVI, Of Parent and Child. Under today's laws of parentage, a genetic relationship and
blood relationship of the correct degree describe and result in the same legal status or relationship,
and proof of either is still the primary means of establishing parentage.
However, in cases involving a maternity dispute, the female who gave birth to a child is considered
the natural parent. See Burlington Cty. Welfare v. McClain (1983), 189 N.J.Super. 152, 458 A.2d
1348. The rationale behind that rule of substantive law is that for millennia, giving birth was
synonymous with providing the genetic makeup of the child that was born. Birth and
blood/genetics were one.
Blood/genetics and birth, the two ways that the law has historically used to identify the natural
parent, are recognized and codified in R.C. Chapter 3111, Ohio's adoption of the Uniform Parentage
Act. Under that Act, maternity can be established by identifying the natural mother through the
birth process or by other means, including DNA blood tests. R.C. 3111.02.
In most disputed cases, those two ways of identifying natural parents are still valid and reliable. In a
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small but growing number of cases, however, they can result in confusing and questionable
determinations of parentage. The reason for that confusion is modern science and medicine's ability
to manipulate the conception and delivery process of a child. By successfully implanting an embryo
into the uterus of a female who has become known as the “gestational surrogate” or “surrogate
host,” modern medicine has devised a way of separating birth from genetics. The introduction of in
vitro fertilization means that the female who bears the child may not be the person who provides
the genetic imprint for the child's development.
That is the fact pattern of this case. Shelly Belsito has provided the genetics, that is, the egg, which
will determine the child's genetics. Shelly's sister, Carol, is the person who will carry and give birth to
the child. Under R.C. Chapter 3111, and the cases upon which it is based, both would be considered
the mother of the delivered child: Carol, because she gave birth, and Shelly, because she provided
the genetic makeup or imprint.
Surrogacy technology did not exist and a separate birth and genetic mother were factually impossible
when the statute, case law, and common law were formulated. It must therefore be assumed that the
framers of those laws did not intend for the law to result in two mothers. In re Marriage of Moschetta
(1994), 25 Cal.App.4th 1218, 30 Cal.Rptr.2d 893. This conclusion is buttressed by the fact that the
Uniform Parentage Act was intended to address solely the question of legitimacy of a child and not
surrogacy. Notes, Uniform Parentage Act. In addition, society and the law recognize only one
natural mother and father. Michael H. v. Gerald D. (1989), 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d
91.
It is apparent that the law must adapt and change to end the confusion caused by surrogacy. The
question is, how will it adapt? Will the genetic test, or the birth test, or some other means be used to
identify those individuals who will be classified as having the legal status of natural mother in cases
such as this one in which the surrogate has not provided the genetic imprint for the child?
The fact pattern of this case is one of first impression for Ohio courts, and would be for most
jurisdictions in the United States. However, several courts have addressed questions involving
surrogacy. In the Matter of Baby M. (1988), 109 N.J. 396, 537 A.2d 1227; In re Marriage of Moschetta,
supra; Seymour v. Stotski (1992), 82 Ohio App.3d 87, 611 N.E.2d 454; Yates v. Keane (1990), 184
Mich.App. 80, 457 N.W.2d 693, appeal denied (1991), 437 Mich. 986, 470 N.W.2d 372. Two courts
have decided cases similar to the case before this court. Johnson v. Calvert (1993), 5 Cal.4th 84, 19
Cal.Rptr.2d 494, 851 P.2d 776, certiorari denied (1993), 510 U.S. 874, 114 S.Ct. 206, 126 L.Ed.2d
163; McDonald v. McDonald (1994), 196 A.D.2d 7, 608 N.Y.S.2d 477.
In Johnson v. Calvert, the facts are very similar to this case, with a married couple supplying the egg
and sperm and a surrogate agreeing to carry and deliver the child. The difference is that the
surrogate in Johnson was not related to the genetic providers, and was to be compensated for the
surrogacy. A dispute arose over the compensation, and the surrogate claimed to be the parent. The
California Supreme Court recognized the genetic providers as the natural parents. That ruling
appears to be based on intent of the parties:
“We conclude that although the Act [the Uniform Parentage Act] recognizes both genetic
consanguinity and giving birth as a means of establishing a mother and child relationship, when the
two means do not coincide in one woman, she who intended to procreate the child-that is, she who
intended to bring about the birth of a child that she intended to raise as her own-is the natural
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mother under California law.” Johnson, 5 Cal.4th at 94, 19 Cal.Rptr.2d at 500, 851 P.2d at 782.
The court in Johnson looked for the intent to procreate and to raise the child, in order to identify the
natural mother. Since the genetic mother in Johnson intended to procreate, she was the natural parent.
The Johnson court discarded both genetics and birth as the primary means of identifying the natural
maternal parent, and replaced both with a test that involves intent of the parties.
In a somewhat similar case, a New York court of appeals determined the gestational surrogate to be
the natural mother based on the Johnson precedent of intent to procreate. McDonald v. McDonald
(1994), 196 A.D.2d 7, 608 N.Y.S.2d 477. (In McDonald, the gestational surrogate received the egg
from an anonymous donor; her husband provided the sperm.) Under the Johnson test, either the
gestational surrogate or the genetic parents could be recognized as the natural and legal parents,
depending on which party intended to procreate and raise the child.
Since both cases emanate from outside the appellate jurisdiction that binds this court, they can only
be considered as persuasive and not binding. In light of Ohio law, this court finds neither case to be
persuasive, for the following three important reasons: (1) the difficulty in applying the Johnson intent
test; (2) public policy; and (3) Johnson's failure to recognize and emphasize the genetic provider's
right to consent to procreation and to surrender potential parental rights.
Intent can be difficult to prove. Even when the parties have a written agreement, disagreements as
to intent can arise. In addition, in certain fact patterns when intent is clear, the Johnson test of intent
to procreate and raise the child may bring about unacceptable results. As an example, who is the
natural parent if both a nongenetic-providing surrogate and the female genetic provider agree that
they both intend to procreate and raise the child? It is apparent that the Johnson test presents
problems when applied.
Nonetheless, ease of application should not be the central focus in structuring the law of surrogacy.
The focus of parentage determination should be based on public policy. Davis v. Davis (Tenn.1992),
842 S.W.2d 588, 591. Surrogacy questions, such as this court has before it, involve questions of
procreation and parentage. Those two subjects involve values that are basic to our society.
Therefore, any new configuration of the law in those areas must be reconcilable with the values as
are expressed in enunciated public policy of present law. The Johnson intent test fails to support, or is
in conflict with, two areas of enunciated public policy.
The first area of conflict is surrender of parental rights by agreement. It has long been recognized
that, as a matter of public policy, the state will not enforce or encourage private agreements or
contracts to give up parental rights. (citations omitted). Through the intent to procreate, the Johnson
case allows the nongenetic carrier/surrogate to be designated as the natural mother. The possibility
of recognition as a parent means that a potential right is implicit in any agreement or contract to act
as gestational surrogate. A surrogate who chooses not to be the natural parent forfeits her right to be
considered the natural and legal parent. Because a fee is often involved in a surrogacy service, that
assent amounts to selling a parental right, and is in contradiction to the public policy against private
contracts to surrender parental rights.
The second area of conflict involves several aspects of the underlying public policy of adoption law.
Adoption laws of Ohio have long required that a relinquishing natural mother be given an
unpressured opportunity before a disinterested magistrate to surrender her parental rights. R.C.
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3107.08. Considering the substantial rights involved, the possible financial pressures, and the value
our society places on procreation, the need for such procedures is evident.
In addition to protecting the interest of the mother, adoption law has attempted to protect the
interest of the child. By agreement or otherwise, the natural mother is not free to surrender her child
to whomever she wishes. Through the use of its parens patriae powers, the state closely supervises
the process, and ultimately selects or approves of the new parents. See R.C. Chapter 3107; State ex
rel. Portage Cty. Welfare Dept. v. Summers (974), 38 Ohio St.2d 144, 67 O.O.2d 151, 311 N.E.2d 6. The
underlying public policy is to provide for the best interest of the child: to ensure that the abandoned
child is not given to persons who will abuse or neglect the child, but will be placed in a home with
caring and competent parents.
Last, the adoption process promotes stability in the child-parent relationship. A court adjudication
of adoption clearly ends the rights and responsibilities of the biological parents, and establishes
those of the adopting parents. Such a process prevents a challenge to the rights and interests of the
child and the parents at some later time. An underlying public policy of adoption law is to provide
an adopted child with an unquestionable and certain status as to its relationship with those who are
designated as the child's legal parents. R.C. 3107.15.
Due to the surrogate's similarity to an adopting parent, the same concerns that brought about the
foregoing adoption procedure and public policy exist in surrogacy births in which the surrogate
retains the child. The Johnson court's formulation of the intent-to-procreate test does not address
those underlying concerns. It does not allow for unpressured surrender of potential parental rights,
nor does it provide a means to review and ensure the suitability of the gestational surrogate or her
spouse as parents. In addition, because it is based on private agreement or intent that has not been
sanctioned by a court proceeding, it raises the question of future legal challenges, and thus
undermines the stability of the child-parent relationship. The Johnson intent formulation ignores
those concerns and relies on the whims of private intent and agreement. It is, in effect, a private
adoption process that is readily subject to all the defects and pressures of such a process.
The final objection this court has to the Johnson intent-to-procreate test is its failure to fully recognize
the genetic provider as having the right to choose or to consent. By subordinating the consent of the
genetic-providing individual to the intent to procreate of the surrogate who intends to keep and raise
the child, the Johnson court has deemphasized what should be considered a basic right. The
procreation of a child, that is, the replication of the unique genes of an individual, should occur only
with the consent of that individual. See Davis v. Davis, supra, 842 S.W.2d 588. The decision to allow
implantation of another's egg and sperm with the understanding that the surrogate will raise the
resulting child also involves the surrendering of parental rights. The consent to procreation and the
surrender of the right to raise a child of one's own genes must be considered the surrender of basic
rights. Id. at 600. See, also, Skinner v. Oklahoma (1942), 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655.
The exercise of fundamental rights should not be taken lightly, and when the choice is made to
exercise or not to exercise those rights, the law must protect that process of choice. (citations
omitted). A minimal protection for the basic rights of procreation, and the raising of a child of that
procreation, should be to require consent to the surrender of those rights. At the very inception of
the process of fertilization, the infertile couple who intends to raise the child and those who would
procure the genetics and facilitate implantation should be put on notice that they must have the
consent of the genetic provider. Such a clearly stated rule would prevent the involuntary use of an
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individual's genes. If we are to respect the right of procreation and parentage when a gestational
surrogate is used, one of the first questions asked must concern consent of the genetic parents. The
Johnson test fails to give that priority, and thus fails to provide adequate protection of basic rights.
Other than Johnson v. Calvert and McDonald v. McDonald, this court can find no precedent or basis in
the law, by analogy or otherwise, for establishing a natural parent by intent to procreate. The use of
the intent test is truly a new and questionable framework upon which to base the determination of
parentage. If a break with traditional law and public policy, as represented by the Johnson test, is to
be made part of the law of this state, it must be argued that the legislature, through the scrutiny of
public hearings and debate, is better situated than a judicial proceeding to test the effectiveness and
appropriateness of such a change.
Having rejected the Johnson test, this court must still provide a framework in which to decide this
case. This court believes it to be more prudent to travel a known path and use existing law as a legal
pattern to fashion new law.
As has been stated, there is abundant precedent for using the genetics test for identifying a natural
parent. For the best interest of the child and society, there are strong arguments to recognize the
genetic parent as the natural parent. The genetic parent can guide the child from experience through
the strengths and weaknesses of a common ancestry of genetic traits. Because that test has served so
well, it should remain the primary test for determining the natural parent, or parents, in nongeneticproviding surrogacy cases.
The test to identify the natural parents should be, “Who are the genetic parents?” When dealing
with a nongenetic-providing surrogate, such a rule minimizes or avoids the question of the surrogate
selling her right to be determined the natural parent. Since she has not contributed to the genetics of
the child, and the genetic parent or parents have not waived their rights, she cannot be determined
the natural parent. She cannot sell a right she does not have. In addition, given the relative certainty
of DNA blood testing, such a foundation or test for parental identity would be simpler to apply and
more certain in results than a Johnson-type intent test.
However, a genetic test cannot be the only basis for determining who will assume the status of legal
parent. The law must recognize the reality that the surrogate who did not provide the genetics of a
child may wish to be the legal parent. There is precedent for recognition of her interest in becoming
the legal parent. Because the surrogate, Carol S. Clark, has failed to assert parental rights, and no
evidence exists of a consent or waiver, the legal status of a nongenetic-providing surrogate who
claims parental rights is not at issue. Therefore, this court cannot properly rule upon the issues
involved in determining that status.
Returning to the original query of this case, what identifies a natural parent when a child is
conceived by the use of in vitro fertilization and the surrogate who delivers the child provides none
of the genetics of that child? The answer of this court is that the individuals who provide the genes
of that child are the natural parents. However, this court further recognizes that a second query must
be made to determine the legal parents, the individual or individuals who will raise the child. That
question must be determined by the consent of the genetic parents. If the genetic providers have not
waived their rights and have decided to raise the child, then they must be recognized as the natural
and legal parents. By formulating the law in this manner, both tests, genetics and birth, are used in
determining parentage. However, they are no longer equal. The birth test becomes subordinate and
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secondary to genetics.
In conclusion, under Ohio law, when a child is delivered by a gestational surrogate who has been
impregnated through the process of in vitro fertilization, the natural parents of the child shall be
identified by a determination as to which individuals have provided the genetic imprint for that
child. If the individuals who have been identified as the genetic parents have not relinquished or
waived their rights to assume the legal status of natural parents, they shall be considered the natural
and legal parents of that child.
Applying the foregoing law to the case at bar, this court has found that Anthony Belsito and Shelly
Belsito are the genetic parents of the unborn child carried by Carol S. Clark, a gestational surrogate
who was impregnated by in vitro fertilization. This court further finds that Anthony Belsito and
Shelly Belsito have not waived their rights to be the natural and legal parents of that child.
Therefore, this court must find, as a matter of law, that Anthony Belsito and Shelly Belsito are the
natural and legal parents of the unborn child now carried by Carol S. Clark.
Judgment Order
IT IS THEREFORE THE ORDER OF THIS COURT, and this court does declare:
1. That Anthony Belsito and Shelly Belsito are the natural and legal parents of the child now carried
by Carol S. Clark.
2. That the child is a legitimate child of Anthony Belsito and Shelly Belsito, and that, under the law
of inheritance of this state, they may inherit through the child and the child may inherit through
them.
3. That they have, in relationship to that child, all other rights and responsibilities that are entailed in
a parent-child relationship.
4. That, based on the foregoing, an adoption proceeding under R.C. Chapter 3107 is unnecessary.
5. That upon the birth of the child, pursuant to this court's authority under R.C. 3705.09 and R.C.
Chapter 2721, the birth certificate of the child shall list Anthony Belsito as father and Shelly Belsito
as mother.
So ordered.
Notes and Questions
1. The Court stated “By formulating the law in this manner, both tests, genetics and birth, are used
in determining parentage. However, they are no longer equal. The birth test becomes subordinate
and secondary to genetics.” Do you agree with the Court’s reasoning? Should the birth test be
subordinate to genetics? Why? Why not?
2. Is the application of the genetics test always in the best interests of the child?

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3. Should genetics be the sole indicator of maternity? Why? Why not?
4. Should the outcome of the case be different if it involved a traditional surrogate?
5. Perry and his partner Daniel wanted to have a child to rear. Perry’s sister, Emily, agreed to be
artificially inseminated with Daniel’s sperm and to serve as a surrogate for the men. After the birth
of the child, Perry and Daniel separated. Who are the legal parents of the child applying the
reasoning of the above case? Does this outcome make sense?
6.6.1.2 The Gestational Test
When establishing the mother-child relationship, some courts elevate giving birth above all
other factors. In those jurisdictions, the courts give the maternal rights to the person who gives
birth. Thus, a traditional surrogate is the legal mother of the child created as the result of a surrogacy
arrangement. Moreover, since she gives birth to the child, the courts recognize the maternal rights of
the gestational surrogate.
J.F. v. D.B., 2004 WL 1570142, 66 Pa. D. & C. 4th 1 (2004)
CONNELLY, J.
A man and his girlfriend signed a surrogacy contract with a woman who agreed to act as their
surrogate. The surrogate became pregnant with triplets. The children were created using the
contracting man’s sperm and donor eggs. Therefore, the contracting woman was not biologically
related to the children. During the pregnancy, the contracting couple paid the surrogate’s expenses
and her medical bills. The babies were born slightly premature at 35 weeks old and had some minor
medical problems. Thus, they were placed in the neonatal intensive care unit (NICU). After the
birth of the children, the relationship between the surrogate and the contracting couple deteriorated.
The surrogate did not approve of the limited contact the contracting couple chose to spend with the
triplets while they were hospitalized. Consequently, the gestational surrogate sought to gain custody
of the triplets.
The Court had to decide the following issue: whether a gestation surrogate has standing to file a
custody action against the man who provided the sperm used to create the children. The
Pennsylvania Legislature had not enacted a surrogacy statute. Thus, the Court reviewed the statutes
in other states. In reaching its decision, the Court also relied upon the state tradition and public
policy. The Court acknowledged the egg donor as the biological mother. However, the Court
concluded that the egg donor could not be the legal mother because she was not a party to the
action. In addition, the Court opined that the contracting man’s girlfriend was not the legal mother
because she was not genetically-related to the children. Although the gestational surrogate was not
genetically-related to the children, the Court held that surrogate was the legal mother of the triplets.
The Court based its decision on the fact that the gestational surrogate carried and bore the children
and took care of them as a natural parent would. The Court emphasized the important role the
birth process plays in the recognition of the mother-child relationship.

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[The surrogate’s] every decision prior to their birth has affected [the triplets]- health,
nutrition, prenatal care, etc. In addition, she has not terminated any parental rights she may
have to the triplets. She has instead taken the triplets into her home and cared for them
along with her three other children. She ismore a mother and a parent by her actions than by
genetics.”

A.H.W. and P.W. v. G.H.B., 772 A.2d 948 (N.J. 2000)
KOBLITZ, P.J.F.P.
The novel issue presented in this surrogacy matter is whether or not a court may issue a pre-birth
order directing a delivering physician to list the man and woman who provided the embryo carried
by a third party as legal parents on a child’s birth certificate. Both the petitioning biological parents
and the defendant surrogate who carried the baby agree that petitioners should be listed as the legal
parents on the baby certificate. However, the Attorney General’s Office opposes the request of the
biological parents for a pre-birth order claiming the relief is contrary to the law prohibiting surrender
of a birth mother’s rights until seventy-two hours after birth, and the public policy of the State of
New Jersey as expressed by the New Jersey Supreme Court in In re Baby M, 109 N.J. 396, 537 A.2d.
1227 (1988). After considering case law and statutes in other states as well as New Jersey, this Court
denies plaintiffs and the defendant surrogate’s request for a pre-birth order, but will issue an order
which allows the petitioning biological parents’ names to be placed on the birth certificate after the
seventy-two hour statutory waiting period has expired but before the birth certificate must be filed.
To understand this unusual relief, the facts of this case must be explored, then a review of other
states’ law in this area, followed by a consideration of New Jersey case law, public policy
implications and statutes.
G.H.B., hereinafter “Gina,” is the unmarried sister of plaintiff A.H.W., “Andrea,” and the sister-inlaw of P.W., “Peter.” The biological parents, Andrea and Peter, entered into a gestational surrogacy
contract with Gina. Gina, without financial compensation, agreed to have embryos implanted into
her uterus that were created from the sperm of her brother-in-law, Peter, and the ova of her sister,
Andrea. This medical procedure is commonly referred to as “ovum implantation,” and permits a
woman who is incapable of carrying a baby to term to have a child who is genetically related to her.
The child is due to be born in about two weeks at a Bergen Country hospital.
Plaintiffs filed a complaint to declare the maternity and paternity of unborn Baby A. Plaintiffs seek
a pre-birth order establishing them as the legal mother and father of unborn Baby A, and placing
their names on the child’s birth certificate. They argue that a pre-birth order is appropriate with a
gestational surrogacy.
The biological parents, Andrea and Peter, and the gestational surrogate, Gina, argue that Gina has
no biological ties to the unborn child and liken the gestational carrier’s role to that of an incubator.
They argue that Baby M is distinguishable because the surrogate mother in that case was also the
biological mother. While Andrea, Peter and Gina are correct that Gina will have no biological ties to
the baby, their simplistic comparison to an incubator disregards the fact that there are human
emotions and biological changes involved in pregnancy.

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A bond is created between a gestational mother and the baby she carries in her womb for nine
months. During the pregnancy, the fetus relies on the gestational mother for a myriad of
contributions. A gestational mother’s endocrine system determines the timing, amount and
components of hormones that affect the fetus. The absence of any component at its appropriate
time will irreversibly alter the life, mental capacity, appearance, susceptibility to disease and structure
of the fetus forever. The gestational mother contributes an endocrine case that determines how the
child will grow, when its cells will divide and differentiate in the womb, and how the child will
appear and function for the rest of its life. (citations omitted)
In this case, Gina has previously had one child and therefore had an understanding of what is
involved in carrying a pregnancy to term at the time she signed the contract. The problem case will
present itself when a gestational mother changes her mind and wishes to keep the newborn. This
may be more likely where a gestational mother has never had a child and is unfamiliar with the
emotions and biological changes involved in a pregnancy. She will not be able to predict what her
feelings will be towards the child she bears. Her body will undergo significant changes and she will
continue to react biologically as any other birth mother. In this case it seems likely that the transfer
of the child will occur without incident due to the close family ties of the parties and Gina’s previous
experience with childbirth. However, although Gina is extremely likely to surrender her rights as
planned, she must not be completed to do so in a pre-birth order.
New Jersey regulations governing the creation of birth records state that the woman who gives birth
must be recorded as a parent on the birth certificate. NJAC 8:2-1.4(a). This regulation would
normally necessitate that Gina’s 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
Peter’s names should be placed on the birth certificate.
In New Jersey, as required by NJSA 26:8-28(a), a birth certificate must be issued and filed within five
days of birth with the local registrar of the district in which the birth occurred. Pursuant to NJSA
26:8-30, “the attending physician, midwife or person acting as the agent of the physician or midwife,
who was in attendance upon the birth shall be responsible for the proper execution and return of a
certificate of birth.”
In recognition of the emotional and physical changes in the mother which occur at birth, voluntary
surrenders 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
parental rights. She will have the responsibility of making decisions for the child during this
seventy-hour period, even if her ultimate decision is to surrender her parental rights.
It is not necessary to now determine what parental rights, if any, the gestational mother may have
vis-a-vis the newborn infant. That decision will have to be made if and when a gestational mother
attempts to keep the infant after birth in violation of the prior agreement. Here, Gina, Peter and
Andrea are closely related. The parties’ detailed fifteen page agreement clearly reflects their shared
intent and desired outcome for this case. Further, Gina, as Andrea’s sister and Peter’s sister-in-law
knows the biological parents intimately and is in an excellent position to know the type of home
they will provide for the child. Thus almost certainly Gina will honor the contract and surrender her
rights.
Conclusion
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The Legislature may well choose to clarify the rights and responsibilities of parties in a gestational
surrogacy. The most prudent course, prior to legislative action, is to follow the current statutes as
closely as possible while allowing the parties, to the maximum extent possible, the relief requested.
A court order for the pre-birth termination of the pregnant defendant’s parental rights is the
equivalent of making her subject to a binding agreement to surrender the child and is contrary to
New Jersey statutes and Baby M. Therefore, the gestational mother may surrender the child
seventy-two hours after giving birth, which is forty-eight hours before the birth certificate must be
prepared. If Gina does choose to surrender the infant, and she certifies that she wishes to relinquish
all rights, then the original birth certificate will list the two biological parents, Andrea and Peter, as
the baby’s parents. If Gina changes her mind once the baby is born, she will have a chance to
litigate for parental rights to the child.
The attending physician who delivers Baby A should prepare a Certificate of Parentage four days
after the birth of the child. This waiting period will allow Gina to surrender her parental right after
seventy-two hours and also allow a birth certificate to be issued within five days of birth. After Gina
surrenders any parental rights she might have, the Certificate of Parentage shall be completed with
Peter as the legal father and Andrea the legal mother. This solution represents a modification of the
agreement between the parties to the least extent necessary to comply with current New Jersey
statutes and the public policy concerns expressed by the Supreme Court in Baby M.
Note and Questions
1. If Gina dies before surrendering her parental rights, would the child be eligible to inherit from
her estate?
2. The Court claims that it is not deciding the issue of the parental rights of a gestational mother. Is
that true? By deciding that the gestational surrogate has a choice whether or not to surrender her
parental rights, isn’t the Court establishing a parent-child relationship between her and the child?
3. The Court refers to Gina as a gestational mother instead of a gestational surrogate. Doesn’t that
fact indicate that the Court is favoring gestation over genetics?
4. Since Gina is not genetically related to the child, should she be able to litigate to have parental
rights over the child?
5. If a client comes to you seeking advice about using a gestational surrogate in this jurisdiction,
what would you recommend?
6. What are the advantages and disadvantages of using the birth test to determine maternity?
7. The Court seems reluctant to force the gestational mother to surrender her parental rights.
However, in New Jersey, the parental rights of sperm donors are automatically waived at the time
they donate sperm. Does it make sense to be more protective of the parental rights of a woman with
no genetic connection to the child than of the parental rights of the man who contributes the
genetic material used to create the child?

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8. Should there be a presumption that the gestational surrogate is not the legal mother of the child?
9. In light of the precedent established by this case, Andrea could be severely disadvantaged.
Consider the following scenario. Gina dies in child birth. Since he is the biological father, Peter’s
name is placed upon the birth certificate and he is give custody of the child. When the baby is only a
few months old, Peter and Andrea divorced. Given her lack of biological connection to the child, it
is possible that Andrea would not have the legal right to custody or visitation. Would that outcome
be fair? Gina only agreed to the process because she wanted to help her sister, Andrea, become a
mother. What can Andrea do to protect her rights?
10. In most surrogacy situations, the woman who gives birth to the child will not be married to the
man who provides the genetic material. As a consequence, if the surrogate is considered to be the
child’s mother, the child may be labeled as a nonmarital child. Should the child have to satisfy the
requirements of the state’s non-marital statute in order to have the right to inherit from his or her
father?
6.6.1.3 The Intent Test

Johnson v. Calvert, 851 P.2d. 776 (Cal. 1993)
PANELLI, Justice.
In this case we address several of the legal questions raised by recent advances in reproductive
technology. When, pursuant to a surrogacy agreement, a zygote formed of the gamete of a husband
and wife is implanted in the uterus of another woman, who carries the resulting fetus to term and
gives birth to a child not genetically related to her, who is the child's “natural mother” under
California law? Does a determination that the wife is the child's natural mother work a deprivation
of the gestating woman's constitutional rights? And is such an agreement barred by any public policy
of this state?
We conclude that the husband and wife are the child's natural parents, and that this result does not
offend the state or federal Constitution or public policy.
Facts
Mark and Crispina Calvert are a married couple who desired to have a child. Crispina was forced to
undergo a hysterectomy in 1984. Her ovaries remained capable of producing eggs, however, and the
couple eventually considered surrogacy. In 1989 Anna Johnson heard about Crispina's plight from a
coworker and offered to serve as a surrogate for the Calverts.
On January 15, 1990, Mark, Crispina, and Anna signed a contract providing that an embryo created
by the sperm of Mark and the egg of Crispina would be implanted in Anna and the child born would
be taken into Mark and Crispina's home “as their child.” Anna agreed she would relinquish “all
parental rights” to the child in favor of Mark and Crispina. In return, Mark and Crispina would pay
Anna $10,000 in a series of installments, the last to be paid six weeks after the child's birth. Mark
and Crispina were also to pay for a $200,000 life insurance policy on Anna's life.
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The zygote was implanted on January 19, 1990. Less than a month later, an ultrasound test
confirmed Anna was pregnant.
Unfortunately, relations deteriorated between the two sides. Mark learned that Anna had not
disclosed she had suffered several stillbirths and miscarriages. Anna felt Mark and Crispina did not
do enough to obtain the required insurance policy. She also felt abandoned during an onset of
premature labor in June.
In July 1990, Anna sent Mark and Crispina a letter demanding the balance of the payments due her
or else she would refuse to give up the child. The following month, Mark and Crispina responded
with a lawsuit, seeking a declaration they were the legal parents of the unborn child. Anna filed her
own action to be declared the mother of the child, and the two cases were eventually consolidated.
The parties agreed to an independent guardian ad litem for the purposes of the suit.
The child was born on September 19, 1990, and blood samples were obtained from both Anna and
the child for analysis. The blood test results excluded Anna as the genetic mother. The parties agreed
to a court order providing that the child would remain with Mark and Crispina on a temporary basis
with visits by Anna.
At trial in October 1990, the parties stipulated that Mark and Crispina were the child's genetic
parents. After hearing evidence and arguments, the trial court ruled that Mark and Crispina were the
child's “genetic, biological and natural” father and mother, that Anna had no “parental” rights to the
child, and that the surrogacy contract was legal and enforceable against Anna's claims. The court also
terminated the order allowing visitation. Anna appealed from the trial court's judgment. The Court
of Appeal for the Fourth District, Division Three, affirmed. We granted review.
The Uniform Parentage Act (the Act) was part of a package of legislation introduced in 1975 as
Senate Bill No. 347. The legislation's purpose was to eliminate the legal distinction between
legitimate and illegitimate children. The Act followed in the wake of certain United States Supreme
Court decisions mandating equal treatment of legitimate and illegitimate children. (citations omitted).
The pertinent portion of Senate Bill No. 347, which passed with negligible opposition, became Part
7 of Division 4 of the California Civil Code, sections 7000-7021.78
Civil Code sections 7001 and 7002 replace the distinction between legitimate and illegitimate
children with the concept of the “parent and child relationship.” The “parent and child
relationship” means “the legal relationship existing between a child and his natural or adoptive
parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It
includes the mother and child relationship and the father and child relationship.” (Civ.Code, §
7001.) “The parent and child relationship extends equally to every child and to every parent,
regardless of the marital status of the parents.” (Civ.Code, § 7002.) The “parent and child
relationship” is thus a legal relationship encompassing two kinds of parents, “natural” and
“adoptive.”
78 Effective January

Code sections-7021 have been repealed and replaced with equivalent provisions in the Family

Code. (Stats.1992, ch. 162, § 4; see Fam.Code, §§ 7600-7650 [eff. Jan. 1, 1994].)

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Passage of the Act clearly was not motivated by the need to resolve surrogacy disputes, which were
virtually unknown in 1975. Yet it facially applies to any parentage determination, including the rare
case in which a child's maternity is in issue. We are invited to disregard the Act and decide this case
according to other criteria, including constitutional precepts and our sense of the demands of public
policy. We feel constrained, however, to decline the invitation. Not uncommonly, courts must
construe statutes in factual settings not contemplated by the enacting legislature.
These contentions are readily summarized. Anna, of course, predicates her claim of maternity on the
fact that she gave birth to the child. The Calverts contend that Crispina's genetic relationship to the
child establishes that she is his mother. Counsel for the minor joins in that contention and argues, in
addition, that several of the presumptions created by the Act dictate the same result. As will appear,
we conclude that presentation of blood test evidence is one means of establishing maternity, as is
proof of having given birth, but that the presumptions cited by minor's counsel do not apply to this
case.
We turn to those few provisions of the Act directly addressing the determination of maternity. “Any
interested party,” presumably including a genetic mother, “may bring an action to determine the
existence ... of a mother and child relationship.” (Civ.Code, § 7015.) Civil Code section 7003
provides, in relevant part, that between a child and the natural mother a parent and child relationship
“may be established by proof of her having given birth to the child, or under [the Act].” (Civ.Code,
§ 7003, subd. (1), emphasis added.) Apart from Civil Code section 7003, the Act sets forth no
specific means by which a natural mother can establish a parent and child relationship. However, it
declares that, insofar as practicable, provisions applicable to the father and child relationship apply in
an action to determine the existence or nonexistence of a mother and child relationship. (Civ.Code,
§ 7015.) Thus, it is appropriate to examine those provisions as well.
A man can establish a father and child relationship by the means set forth in Civil Code section
7004. (Civ.Code, §§ 7006, 7004.) Paternity is presumed under that section if the man meets the
conditions set forth in section 621 of the Evidence Code. (Civ.Code, § 7004, subd. (a).) The latter
statute applies, by its terms, when determining the questioned paternity of a child born to a married
woman, and contemplates reliance on evidence derived from blood testing. (Evid.Code, § 621,
subds. (a), (b); see Evid.Code, §§ 890-897 [Uniform Act on Blood Tests to Determine Paternity].)
Alternatively, Civil Code section 7004 creates a presumption of paternity based on the man's
conduct toward the child (e.g., receiving the child into his home and openly holding the child out as
his natural child) or his marriage or attempted marriage to the child's natural mother under specified
conditions (citations omitted).
In our view, the presumptions contained in Civil Code section 7004 do not apply here. They
describe situations in which substantial evidence points to a particular man as the natural father of
the child. (9B West's U.Laws Ann. (1987) Unif. Parentage Act, com. foll. § 4, p. 299.) In this case,
there is no question as to who is claiming the mother and child relationship, and the factual basis of
each woman's claim is obvious. Thus, there is no need to resort to an evidentiary presumption to
ascertain the identity of the natural mother. Instead, we must make the purely legal determination as
between the two claimants.
Significantly for this case, Evidence Code section 892 provides that blood testing may be ordered in
an action when paternity is a relevant fact. When maternity is disputed, genetic evidence derived
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from blood testing is likewise admissible. (Evid.Code, § 892; see Civ.Code, § 7015.) The Evidence
Code further provides that if the court finds the conclusions of all the experts, as disclosed by the
evidence based on the blood tests, are that the alleged father is not the father of the child, the
question of paternity is resolved accordingly. (Evid.Code, § 895.) By parity of reasoning, blood
testing may also be dispositive of the question of maternity. Further, there is a rebuttable
presumption of paternity (hence, maternity as well) on the finding of a certain number of genetic
markers. (Evid.Code, § 895.5.)
Disregarding the presumptions of paternity that have no application to this case, then, we are left
with the undisputed evidence that Anna, not Crispina, gave birth to the child and that Crispina, not
Anna, is genetically related to him. Both women thus have adduced evidence of a mother and child
relationship as contemplated by the Act. (Civ.Code, §§ 7003, subd. (1), 7004, subd. (a), 7015;
Evid.Code, §§ 621, 892.) Yet for any child California law recognizes only one natural mother, despite
advances in reproductive technology rendering a different outcome biologically possible.
We see no clear legislative preference in Civil Code section 7003 as between blood testing evidence
and proof of having given birth. The word “may” in the Act indicates that proof of having given
birth is a permitted method of establishing a mother and child relationship, although perhaps not
the exclusive one. The disjunctive “or” indicates that blood test evidence, as prescribed in the Act,
constitutes an alternative to proof of having given birth. It may be that the language of the Act
merely reflects “the ancient dictum mater est quam [gestation] demonstrat (by gestation the mother
is demonstrated). This phrase, by its use of the word ‘demonstrated,’ has always reflected an
ambiguity in the meaning of the presumption. It is arguable that, while gestation may demonstrate
maternal status, it is not the sine qua non of motherhood. Rather, it is possible that the common law
viewed genetic consanguinity as the basis for maternal rights. Under this latter interpretation,
gestation simply would be irrefutable evidence of the more fundamental genetic relationship.” (Hill,
What Does It Mean to Be a “Parent”? The Claims of Biology As the Basis for Parental Rights (1991) 66
N.Y.U.L.Rev. 353, 370, fns. omitted.) This ambiguity, highlighted by the problems arising from the
use of artificial reproductive techniques, is nowhere explicitly resolved in the Act.
Because two women each have presented acceptable proof of maternity, we do not believe this case
can be decided without enquiring into the parties' intentions as manifested in the surrogacy
agreement. Mark and Crispina are a couple who desired to have a child of their own genetic stock
but are physically unable to do so without the help of reproductive technology. They affirmatively
intended the birth of the child, and took the steps necessary to effect in vitro fertilization. But for
their acted-on intention, the child would not exist. Anna agreed to facilitate the procreation of
Mark's and Crispina's child. The parties' aim was to bring Mark's and Crispina's child into the world,
not for Mark and Crispina to donate a zygote to Anna. Crispina from the outset intended to be the
child's mother. Although the gestative function Anna performed was necessary to bring about the
child's birth, it is safe to say that Anna would not have been given the opportunity to gestate or
deliver the child had she, prior to implantation of the zygote, manifested her own intent to be the
child's mother. No reason appears why Anna's later change of heart should vitiate the determination
that Crispina is the child's natural mother.
We conclude that although the Act recognizes both genetic consanguinity and giving birth as means
of establishing a mother and child relationship, when the two means do not coincide in one woman,
she who intended to procreate the child-that is, she who intended to bring about the birth of a child
that she intended to raise as her own-is the natural mother under California law.
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In deciding the issue of maternity under the Act we have felt free to take into account the parties'
intentions, as expressed in the surrogacy contract, because in our view the agreement is not, on its
face, inconsistent with public policy.
Preliminarily, Mark and Crispina urge us to interpret the Legislature's 1992 passage of a bill that
would have regulated surrogacy as an expression of this state's public policy despite the fact that
Governor Wilson's veto prevented the bill from becoming law. Senate Bill No. 937 contained a
finding that surrogate contracts are not against sound public and social policy. (Sen. Bill No. 937
(1991-1992 Reg.Sess.).) Had Senate Bill No. 937 become law, there would be no room for argument
to the contrary. The veto, however, raises a question whether the legislative declaration truly
expresses California's public policy.
In the Governor's veto message we find, not unequivocal agreement with the Legislature's public
policy assessment, but rather reservations about the practice of surrogate parenting. “Surrogacy is a
relatively recent phenomenon. The full moral and psychological dimensions of this practice are not
yet clear. In fact, they are just beginning to emerge. Only two published court opinions in California
have treated this nettlesome subject.... Comprehensive regulation of this difficult moral issue is
premature.... To the extent surrogacy continues to be practical, it can be governed by the legal
framework already established in the family law area.” (Governor's veto message to Sen. on Sen. Bill
No. 937 (Sept. 26, 1992) Sen. Daily File (1991-1992 Reg.Sess.) p. 68.) Given this less than ringing
endorsement of surrogate parenting, we conclude that the passage of Senate Bill No. 937, in and of
itself, does not establish that surrogacy contracts are consistent with public policy. (Of course,
neither do we draw the opposite conclusion from the fact of the Governor's veto.)
Anna urges that surrogacy contracts violate several social policies. Relying on her contention that
she is the child's legal, natural mother, she cites the public policy embodied in Penal Code section
273, prohibiting***** the payment for consent to adoption of a child. She argues further that the
policies underlying the adoption laws of this state are violated by the surrogacy contract because it in
effect constitutes a prebirth waiver of her parental rights.
We disagree. Gestational surrogacy differs in crucial respects from adoption and so is not subject to
the adoption statutes. The parties voluntarily agreed to participate in in vitro fertilization and related
medical procedures before the child was conceived; at the time when Anna entered into the
contract, therefore, she was not vulnerable to financial inducements to part with her own expected
offspring. As discussed above, Anna was not the genetic mother of the child. The payments to Anna
under the contract were meant to compensate her for her services in gestating the fetus and
undergoing labor, rather than for giving up “parental” rights to the child. Payments were due both
during the pregnancy and after the child's birth. We are, accordingly, unpersuaded that the contract
used in this case violates the public policies embodied in Penal Code section 273 and the adoption
statutes. For the same reasons, we conclude these contracts do not implicate the policies underlying
the statutes governing termination of parental rights. (See Welf. & Inst.Code, § 202.)
It has been suggested that gestational surrogacy may run afoul of prohibitions on involuntary
servitude. (See U.S. Const., Amend. XIII; Cal. Const., art. I, § 6; Pen.Code, § 181.) Involuntary
servitude has been recognized in cases of criminal punishment for refusal to work. (Pollock v.
Williams (1944) 322 U.S. 4, 18, 64 S.Ct. 792, 799, 88 L.Ed. 1095, 1104; see, generally, 7 Witkin,
Summary of Cal. Law (9th ed. 1988) Constitutional Law, §§ 411-414, pp. 591-596.) We see no
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potential for that evil in the contract at issue here, and extrinsic evidence of coercion or duress is
utterly lacking. We note that although at one point the contract purports to give Mark and Crispina
the sole right to determine whether to abort the pregnancy, at another point it acknowledges: “All
parties understand that a pregnant woman has the absolute right to abort or not abort any fetus she
is carrying. Any promise to the contrary is unenforceable.” We therefore need not determine the
validity of a surrogacy contract purporting to deprive the gestator of her freedom to terminate the
pregnancy.
Finally, Anna and some commentators have expressed concern that surrogacy contracts tend to
exploit or dehumanize women, especially women of lower economic status. Anna's objections center
around the psychological harm she asserts may result from the gestator's relinquishing the child to
whom she has given birth. Some have also cautioned that the practice of surrogacy may encourage
society to view children as commodities, subject to trade at their parents' will.
We are all too aware that the proper forum for resolution of this issue is the Legislature, where
empirical data, largely lacking from this record, can be studied and rules of general applicability
developed.***** However, in light of our responsibility to decide this case, we have considered as
best we can its possible consequences.
We are unpersuaded that gestational surrogacy arrangements are so likely to cause the untoward
results Anna cites as to demand their invalidation on public policy grounds. Although common
sense suggests that women of lesser means serve as surrogate mothers more often than do wealthy
women, there has been no proof that surrogacy contracts exploit poor women to any greater degree
than economic necessity in general exploits them by inducing them to accept lower-paid or
otherwise undesirable employment. We are likewise unpersuaded by the claim that surrogacy will
foster the attitude that children are mere commodities; no evidence is offered to support it. The
limited data available seem to reflect an absence of significant adverse effects of surrogacy on all
participants.
The argument that a woman cannot knowingly and intelligently agree to gestate and deliver a baby
for intending parents carries overtones of the reasoning that for centuries prevented women from
attaining equal economic rights and professional status under the law. To resurrect this view is both
to foreclose a personal and economic choice on the part of the surrogate mother, and to deny
intending parents what may be their only means of procreating a child of their own genetic stock.
Certainly in the present case it cannot seriously be argued that Anna, a licensed vocational nurse
who had done well in school and who had previously borne a child, lacked the intellectual
wherewithal or life experience necessary to make an informed decision to enter into the surrogacy
contract.
The judgment of the Court of Appeal is affirmed.

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6.6.1.4 The Best Interests of the Child Test

Johnson v. Calvert, 851 P.2d. 776 (Cal. 1993)
KENNARD, Justice, dissenting.
When a woman who wants to have a child provides her fertilized ovum to another woman who
carries it through pregnancy and gives birth to a child, who is the child's legal mother? Unlike the
majority, I do not agree that the determinative consideration should be the intent to have the child
that originated with the woman who contributed the ovum. In my view, the woman who provided
the fertilized ovum and the woman who gave birth to the child both have substantial claims to legal
motherhood. Pregnancy entails a unique commitment, both psychological and emotional, to an
unborn child. No less substantial, however, is the contribution of the woman from whose egg the
child developed and without whose desire the child would not exist.
For each child, California law accords the legal rights and responsibilities of parenthood to only one
“natural mother.” When, as here, the female reproductive role is divided between two women,
California law requires courts to make a decision as to which woman is the child's natural mother,
but provides no standards by which to make that decision. The majority's resort to “intent” to break
the “tie” between the genetic and gestational mothers is unsupported by statute, and, in the absence
of 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
arrangement, I would apply the standard most protective of child welfare-the best interests of the
child.
To summarize, the woman who carried the fetus to term and brought a child into the world has, like
the genetic mother, a substantial claim to be the natural mother of the child. The gestational mother
has made an indispensable and unique biological contribution, and has also gone beyond biology in
an intangible respect that, though difficult to label, cannot be denied. Accordingly, I cannot agree
with the majority's devaluation of the role of the gestational mother.
I agree with the majority that the best interests of the child is an important goal; indeed, as I shall
explain, the best interests of the child, rather than the intent of the genetic mother, is the proper
standard to apply in the absence of legislation. The problem with the majority's rule of intent is that
application of this inflexible rule will not serve the child's best interests in every case.
Factors that are pertinent to good parenting, and thus that are in a child's best interests, include the
ability to nurture the child physically and psychologically (Cahill, The Ethics of Surrogate Motherhood:
Biology, Freedom, and Moral Obligation, in Surrogate Motherhood, supra, at p. 160), and to provide ethical
and intellectual guidance (see In re Marriage of Carney (1979) 24 Cal.3d 725, 739, 157 Cal.Rptr. 383, 598
P.2d 36). Also crucial to a child's best interests is the “well recognized right” of every child “to
stability and continuity.” (Burchard v. Garay, supra, 42 Cal.3d at p. 546, 229 Cal.Rptr. 800, 724 P.2d
486 (conc. opn. of Mosk, J.).) The intent of the genetic mother to procreate a child is certainly
relevant to the question of the child's best interests; alone, however, it should not be dispositive.
Here, the child born of the gestational surrogacy arrangement between Anna Johnson and Mark and
Crispina Calvert has lived continuously with Mark and Crispina since his birth in September 1990.
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The trial court awarded parental rights to Mark and Crispina, concluding that as a matter of law they
were the child's “genetic, biological and natural” parents. In reaching that conclusion, the trial court
did not treat Anna's statutory claim to be the child's legal mother as equal to Crispina's, nor did the
trial court consider the child's best interests in deciding between those two equal statutory claims.
Accordingly, I would remand the matter to the trial court to undertake that evaluation.
I would reverse the judgment of the Court of Appeal, and remand the case to the trial court for a
determination of disputed parentage on the basis of the best interests of the child.
Notes and Questions
1. What are the pros and cons of the intent test? How should the intent of the parties be
determined?
2. Is the best interests test really a separate test? Should not the best interests of the child always be
the primary factor in determining the mother of the child?
3. Since the surrogate had no genetic connection to the child, would not it have been simpler for
the court to just apply the birth test?
4. Would the court’s reasoning justify the outcome if the case involved a gestational surrogate?
5. Would application of the dissent’s best interests test change the outcome of the case? Is it a
better test?
6. Should the child be able to inherit from both women involved in the process?
6.6.1.5 The Totality of the Circumstances

In re C.K.G., 173 S.W. 3d 714 (Tenn. 2005)
DROWOTA, C.J.
This controversy involves a maternity dispute. An unmarried, heterosexual couple had three children
by obtaining eggs donated from an anonymous third-party female, fertilizing the eggs in vitro with
the man's sperm, and implanting the fertilized eggs in the woman's uterus. The couple intended to
rear the children together as father and mother. When the couple's relationship deteriorated, the
woman filed a parentage action seeking custody and child support. In response, the man claimed
that the woman had no standing as a parent because, lacking genetic connection to the children, she
failed to qualify as a parent under Tennessee's parentage statutes. On this basis, the man sought sole
and exclusive custody.
Employing a broadly-framed test that looks to the parties' pre-conception intent to determine
maternity, both the juvenile court and the Court of Appeals held that the woman was the children's
legal mother. Alternatively, the Court of Appeals held that the man, based on his representations
and conduct which induced detrimental reliance by the woman, is estopped to deny the woman's
status as mother. We vacate the adoption of the intent test by the court below and also vacate the
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holding of the Court of Appeals that the man is estopped to deny the woman's maternal status.
However, we affirm on separate grounds the holding of the courts below that the woman is the
children's legal mother with all the rights and responsibilities of parenthood. Our holding in this
regard is based on the following factors: (1) prior to the children's birth, both the woman as gestator
and the man as the genetic father voluntarily demonstrated the bona fide intent that the woman
would be the children's legal mother and agreed that she would accept the legal responsibility as well
as the legal rights of parenthood; (2) the woman became pregnant, carried to term, and gave birth to
the children as her own; and (3) this case does not involve a controversy between a gestator and a
female genetic progenitor where the genetic and gestative roles have been separated and distributed
among two women, nor does this case involve a controversy between a traditional or gestational
surrogate and a genetically-unrelated intended mother.
Our holding today is tailored narrowly to the specific controversy now before us. Having concluded
that the woman is the children's legal mother, we also affirm in full the judgments of the juvenile
court and Court of Appeals concerning comparative fitness, custody, child support, and visitation.
I. Factual and Procedural Background
Dr. Charles K.G. and Ms. Cindy C. first met in 1993 while working at Vanderbilt University Medical
Center in Nashville. Cindy was a nurse practitioner who managed a department through which
Charles, then a medical resident, rotated. Charles and Cindy began dating in 1994. After an initial
period of closeness, they maintained for several years an unsteady dating relationship which included
an extended period of estrangement.
In 1999, Charles and Cindy not only reunited as an unmarried couple but also soon thereafter began
discussing having a child together. By this time Cindy was forty-five years old and Charles was also
in his mid-forties. Charles had never had children. He had not grown up in Tennessee, and a
December 1999 visit to his birthplace influenced him; he wanted to be a father. Even though Cindy
had at least two adult children from prior marriages as well as grandchildren, she was amenable to
starting a family with Charles. However, given her age, Cindy was concerned about the viability of
her ova, or eggs.
Having decided to have a child, Charles and Cindy pursued in vitro fertilization through the
Nashville Fertility Center. On May 2, 2000, they jointly executed several agreements with the
Fertility Center. Although Charles and Cindy were unmarried, they did not alter the boilerplate
language that the Center frequently used in its agreements describing them as “husband” and
“wife.” Included among these agreements was a “RECIPIENT CONSENT FOR DONATION
OF OOCYTES BY ANONYMOUS DONOR” (“Recipient Consent”) which describes the
fertilization procedure and its risks, waives the right of Charles and Cindy to know the egg donor's
identity, and outlines the responsibilities of the parties to the agreement. The Recipient Consent
further provides as follows:
I, Cindy (wife), understand that the child(ren) conceived by this method will not have my
genetic material, but will have that of the oocyte [egg] donor and my husband [sic].
However, regardless of the outcome, I will be the mother of any child(ren) born to me as a
result of egg donation and hereby accept all the legal responsibilities required of such a
parent.
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This document was signed by Cindy as “wife” and by Charles as “husband” and was witnessed and
signed by a physician who represented that he had fully explained the procedure to Charles and
Cindy and had answered all their questions. However, Charles and Cindy executed no other
agreements concerning their intentions as to parentage or surrogacy.
Shortly thereafter, Charles paid the Fertility Center $10,000 for the procedure of having two
anonymously donated eggs fertilized with Charles's sperm and inserted in Cindy's uterus. Charles
intended for them to conceive only one child (presumably two eggs were used to increase the
procedure's odds of success). After fertilization, one of the eggs divided, resulting in the
development of three embryos. All three embryos flourished; Cindy had become pregnant with
triplets.
During Cindy's pregnancy, Charles began residing consistently at Cindy's home. Due to
complications with the pregnancy, Cindy took an early leave from her job. When she was placed on
bed rest, Charles maintained the household and cooked for her. On February 21, 2001, Cindy gave
birth via caesarian section to three children: C.K.G., C.A.G., and C.L.G. Tennessee Department of
Health birth certificates for the children identify Charles as the father and Cindy as the mother.
Although Charles had never promised to marry Cindy, he represented that he desired permanence
and stability with her. Further, Cindy understood and expected that they would raise the children
together as mother and father. In fact, Cindy even sought assurance from Charles that she would
not have to rear them by herself. Cindy stayed home with the triplets on maternity leave until June
2001 when she returned to work four days per week. Having set aside money in anticipation of
having a child, Charles took a one-year leave of absence (February 2001 to January 2002) from his
position as an emergency room physician. For the first several months after the triplets' birth,
Charles and Cindy lived together and shared parenting responsibilities. They each provided
financially for the children's needs. Further, for some time they had discussed the need for a larger
home, and they purchased a house in Brentwood together as tenants in common with the
understanding that they would bear the cost equally. Cindy sold her prior residence, and she,
Charles, and the triplets moved into the new house in August 2001.
After hiring a nanny, Charles and Cindy's relationship soon deteriorated. Cindy alleged that Charles
began cultivating or renewing relationships with several other women; Charles admitted to having
sex with another woman during a December 2001 trip to London, England. Cindy further alleged
that once their relationship had begun to deteriorate, Charles not only became dramatically less
involved with the children, but also began withholding financial support from them. In April 2002,
after utility service to their home had been cut off, Cindy filed a petition in the juvenile court of
Williamson County to establish parentage and to obtain custody and child support.
In response, Charles argued that because Cindy lacks genetic connection to the children, she fails to
qualify as the children's “mother” under Tennessee's domestic relations statutes. Contending that
Cindy thus lacks standing as a parent, Charles sought sole and exclusive custody of the triplets.
Charles further denied that he had failed to support the children financially and also alleged that
Cindy was often absent from home on account of her part-time pursuit of a master's degree in
business administration. Cindy conceded that Charles increased his involvement with the children
after she filed suit. A pendente lite order required Charles to pay Cindy $3,000 per month for child
support. Charles and Cindy continued to live together pending trial.
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In 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
the resulting embryos to term and gave birth to triplets; (3) based on genetic testing, Charles is the
biological father of all three children; (4) based on genetic testing, none of the children obtained
genetic material from Cindy; and (5) the genetic testing was valid.
After a bench trial, the juvenile court ruled that Cindy had standing to bring a parentage action “as
legal mother of these three (3) minor children with all the rights, privileges, and obligations as if she
were their biological mother.” The juvenile court reasoned that Cindy “is the birth mother and
always had the intent to birth these children for herself and [Charles].” Having so decided, the
juvenile court addressed the question of custody and support. The court concluded that in light of
all the circumstances, Charles and Cindy were both good and caring parents. Based upon their
“comparative fitness ... as that affects the best interests of the minor children,” the court awarded
joint custody with Cindy designated as the primary custodial parent. The court further ordered
certain visitation rights in favor of Charles and required him to continue to pay Cindy child support
in the amount of $3,000 per month. Charles appealed as of right.
The Court of Appeals affirmed the judgments of the juvenile court. Concerning the question of
Cindy's parental status, the Court of Appeals held not only that Tennessee's paternity and adoption
statutes do not control this case, but also that Tennessee case law provides no directly controlling
precedent. Consequently, the intermediate court looked to case law from other jurisdictions for
guidance. To determine as a matter of law whether Cindy is the “mother” of the triplets, the Court
of Appeals adopted the intent test of Johnson v. Calvert, 5 Cal.4th 84, 19 Cal.Rptr.2d 494, 851 P.2d
776 (1993), holding that “this issue should be resolved by looking to the intent of the parties” and
not merely to genetics. The intermediate court determined that such an approach is consistent with
this Court's decision in Davis v. Davis, 842 S.W.2d 588 (Tenn.1992), where we emphasized the
importance of agreements between parties who choose to take advantage of modern techniques for
assisted reproduction. Finding that Cindy was the intended mother and that no other party claimed
maternal status, the Court of Appeals held that Cindy is legally the children's mother. Alternatively,
based on principles of equity, the Court of Appeals held that Charles is estopped from challenging
Cindy's parental status. Having affirmed that Cindy enjoys parental status, the Court of Appeals also
affirmed in all respects the juvenile court's judgments concerning comparative fitness, custody,
visitation, and child support.
We granted Charles's application for permission to appeal.
II. Analysis
In this case, an unmarried, heterosexual couple-Charles and Cindy-had children by obtaining eggs
donated from an anonymous third-party female, fertilizing the eggs in vitro with Charles's sperm,
and implanting the fertilized eggs in Cindy's uterus. Even though Cindy had no genetic connection
to the three children to whom she eventually gave birth, she and Charles intended to rear the
children together as mother and father. When the couple's relationship deteriorated, Cindy filed a
parentage action seeking custody and child support from Charles. In response, Charles claimed that
Cindy had no standing as a parent because, lacking genetic connection to the children, she failed to
qualify as a parent under Tennessee parentage statutes. On this basis, Charles sought sole and
exclusive custody. The facts of this case thus present us with a question of first impression in
Tennessee: under such circumstances, who as a matter of law is the children's mother?
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It is helpful to explain further how the primary issue which we must decide is distinct from other
kinds of maternity disputes. This case is distinguishable from maternity disputes within the context
of “traditional surrogacy,” such as the situation involved in In re Baby M, 109 N.J. 396, 537 A.2d
1227 (1988), superseded by statute as recognized in In re Adoption of Children by G.P.B., 161 N.J. 396,
736 A.2d 1277 (1999). In a traditional surrogacy arrangement, a surrogate “mother” gives birth to a
child by allowing her own eggs to be inseminated. A traditional surrogate mother thus has a genetic
connection to the child whom she nonetheless bears on behalf of others. In contrast, “gestational
surrogacy” involves in vitro fertilization of an intended “mother's” egg which is then implanted for
gestation purposes in a genetically-unrelated surrogate “mother.” (citations omitted).
Our case is closer in kind to “gestational surrogacy with egg donation” where a woman carries and
gives birth to a child as a result of fertilization and implantation of a third-party donor's egg.
(citation omitted). Under such circumstances, both the egg donor and the gestational carrier, or
gestator, may perform the role of surrogate. A “surrogate” is generally defined as “a person
appointed to act in place of another....” Webster's Third New Int'l Dictionary of the English
Language Unabridged 2302 (Philip Babcock Gove ed.1971). The egg donor is a surrogate insofar as
she provides eggs in place of and on behalf of another woman who cannot produce viable eggs. The
gestator may also play the role of surrogate by carrying the child to term in place of and on behalf of
another.
In this case, however, an anonymous, surrogate egg donor provided eggs to a gestator (Cindy) who
gave birth ostensibly for her own benefit. Whether Cindy may be classified as a gestational
“surrogate” is thus problematic, for the question is unavoidably tied up with disputed legal
questions. Cindy would argue that she is not a gestational “surrogate” because she gestated and gave
birth to the children on behalf of both Charles as father and herself as mother. However, Charles
contends that Cindy was merely a gestational “surrogate” on behalf of Charles as the sole legal
parent.
A. The Question of Maternity
In addressing the question of maternity, we review findings of fact by the trial court de novo upon
the record, accompanied by a presumption of the correctness of the findings, unless the
preponderance of the evidence is otherwise. See Tenn. R.App. P. 13(d); Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). Our standard of appellate review for questions of law is
de novo with no presumption of correctness. Presley v. Bennett, 860 S.W.2d 857, 859-60 (Tenn.1993).
1. The Impact of Modern Reproductive Technology on the Legal Definition of Parenthood
“Historically, gestation proved genetic parentage beyond doubt, so it was unnecessary to distinguish
between gestational and genetic mothers.” (citation omitted). However, recent developments in
reproductive technology have caused a tectonic shift in the realities which underlie our legal
conceptions of parenthood.
This technological fragmentation of the procreative process, insofar as it includes techniques for egg
and sperm donation and preservation, has engendered a bewildering variety of possibilities which are
not easily reconciled with our traditional definitions of “mother,” “father,” and “parent.” The degree
to which current statutory law governs or fails to govern these realities provides the initial
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framework for our analysis.
2. The Limited Scope of Tennessee's Parentage Statutes
Parentage is an area of law governed primarily by statute. Unfortunately, Tennessee's parentage and
related statutes do not contemplate many of the scenarios now made possible by recent
developments in reproductive technology. We now review Tennessee's statutory scheme. When
construing statutes, we must “ascertain and carry out the legislature's intent without unduly
restricting or expanding a statute's coverage beyond its intended scope.” Premium Fin. Corp. of Am. v.
Crump Ins. Servs. of Memphis, Inc., 978 S.W.2d 91, 93 (Tenn.1998). “In ascertaining the intent of the
legislature, this Court may look to ‘the language of the statute, its subject matter, the object and
reach of the statute, the wrong or evil which it seeks to remedy or prevent, and the purpose sought
to be accomplished in its enactment.’ ” State v. Gilliland, 22 S.W.3d 266, 275 (Tenn.2000) (quoting
State v. Lewis, 958 S.W.2d 736, 739 (Tenn.1997)).
The Tennessee Code provides a single cause of action for establishing parentage. Tenn. Code Ann. §
36-2-301 (2001). A court “may enter an order of parentage upon the agreement of the mother and
father unless the court on its own motion orders genetic testing.” Tenn. Code Ann. § 36-2-305(a)
(2001). Alternatively, a complaint to establish parentage of a child may be brought by the child, the
“child's mother,” a “man claiming to be the child's father,” or the Tennessee Department of Human
Services. Tenn. Code Ann. § 36-2-305(b)(1).
The parentage statutes define “mother” as “the biological mother of a child born out of
wedlock.” Tenn. Code Ann. § 36-2-302(4) (2001) (emphasis added). Similarly, “parent” is defined as
“the biological mother or biological father of a child, regardless of the marital status of the mother
and father.” Tenn. Code Ann. § 36-2-302(5) (emphasis added). The parentage statutes do not define
“biological mother.” Consequently, we adduce definitions provided by Tennessee's adoption
statutes. Statutes in pari materia-that is, statutes relating to the same subject or having a common
purpose-are to be construed together. Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn.1994).
The adoption statutes define “biological parents” as “the woman and man who physically or
genetically conceived the child.” Tenn. Code Ann. § 36-1-102(10) (2001) (emphasis added). Code
section 36-1-102(10) focuses solely on conception, making no reference to giving birth. The verb
“conceived” is modified by two disjunctively related adverbs. On the one hand, “physically” is an
adverb meaning “in a physical manner” and “in respect to the body,” Webster's Third New Int'l
Dictionary of the English Language Unabridged 1707, and which thus means in a manner which
relates to or stands “in accordance with the laws of nature, ”id. at 1706 (defining “physical”). As
used in the statute, “physically ... conceived” therefore means having caused conception through
natural means (coitus) as opposed to artificial means.
On the other hand, “genetically conceived” means having caused conception in a manner pertaining
to “genetic makeup and phenomena.” Id. at 946 (defining “genetics”). Genetic conception thus
entails the contribution of one's genes to a child. By providing for genetic conception in addition to
physical or natural conception, Code section 36-1-102(10) implicitly accounts for genetic procreation
via technological assistance. If practicable, a statute is to be construed so that its component parts
are reasonably consistent. Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968). “Every
word used is presumed to have meaning and purpose, and should be given full effect if so doing
does not violate the obvious intention of the Legislature.” Id.
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We agree with the Court of Appeals that Cindy falls outside the statutory scope of the parentage and
adoption statutes, which do not expressly control the circumstances of this case. It is appropriate to
construe the parentage and adoption statutes narrowly insofar as this case involves such
fundamental constitutional rights as parenthood and the right to procreate. See Hawk v. Hawk, 855
S.W.2d 573, 578-79 (Tenn.1993); Davis v. Davis, 842 S.W.2d 588, 600-01 (Tenn.1992). Further, we
refrain from “speculating about the significance of provisions which are not included in [a] statute,”
finding it more effective to “consider the words actually used.” Fletcher v. State, 951 S.W.2d 378, 382
(Tenn.1997).
First, although the definition of “biological parents” in Tennessee Code Annotated section 36-1102(10) implicitly accounts for assisted conception by distinguishing between physical (natural) and
genetic conception, see supra, the adoption and parentage statutes do not further elaborate upon
this distinction.
Second, even the definition of “surrogate birth” in Tennessee Code Annotated section 36-1102(48)(A) (2001) assumes the existence of a marital relationship between the intended parents on
whose behalf the surrogate carries a child. See Tenn. Code Ann. § 36-1-102(48)(A)(i) (“The union of
the wife's egg and the husband's sperm which are then placed in another woman who carries the
fetus to term and who, pursuant to a contract, then relinquishes all parental rights....”) (emphasis
added); § 36-1-102(48)(A)(ii) (The gestational surrogate “shall relinquish the child to the biological
father and the biological father's wife.”) (emphasis added). As the Court of Appeals correctly
pointed out, this definition of surrogate birth is “expressly based on the predicate that the surrogate
entered into a contract by which she relinquished all parental rights.” Moreover, this statutory
definition assumes that the intended mother is a woman other than the gestator. However, in this
case not only was there no marriage or surrogacy contract, there is also no evidence in the record to
suggest that Cindy gave birth on behalf of anyone but Charles and herself.79
Third, the parentage statutes generally fail to contemplate dispute over maternity. For example, the
rebuttable presumptions of parentage provided in Tennessee Code Annotated section 36-2-304
(2001) focus exclusively on establishing paternity. See Tenn. Code Ann. § 36-2-304(a) (“A man is
rebuttably presumed to be the father of a child if ....”) (emphasis added). The statutes also employ
the term “mother” in a way that assumes we already know who the “mother” is, see, e.g. Tenn.
Code Ann. §§ 36-2-303, 36-2-305(b)(1)(B) (2001), whereas references to “father” include such
phrases as “a man claiming to be the child's father,” Tenn. Code Ann. § 36-2-305(b)(1)(C), “alleged
father,” Tenn. Code Ann. § 36-2-305(b)(4), and “putative father,” Tenn. Code Ann. § 36-2-318
(2001). Similarly, the statute providing for an order of parentage is concerned solely with the
establishment of paternity. See Tenn. Code Ann. § 36-2-311(a) (2001) (“Upon establishing parentage,
the court shall make an order declaring the father of the child.”) (emphasis added). The statutes lack
corresponding language concerning the establishment of maternity.
The legislative history of the parentage statutes reinforces our conclusion that they fail to
79 We note that the surrogate birth statute itself reflects a neutral legislative stance as to the validity and enforceability of

surrogacy arrangements. See Tenn. Code Ann. § 36-1-102(48)(C) (“Nothing herein shall be construed to expressly
authorize the surrogate birth process in Tennessee unless otherwise approved by the courts or the general assembly.”).
We express no opinion here on that issue.

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contemplate or to control the circumstances of this case. Where the plain language of a statute does
not clearly resolve an issue, it is appropriate to consider the history and purpose of legislation in
order to ascertain legislative intent. See Lavin v. Jordon, 16 S.W.3d 362, 365-66 (Tenn.2000).
In 1997, the Tennessee General Assembly completely overhauled the statutes concerning paternity
and legitimation. See 1997 Tenn. Pub. Acts ch. 477. The primary purpose of this change was to
streamline and to simplify the formerly separate causes of action for paternity and legitimation by
combining them into a single parentage action. See Tenn. Code Ann. §§ 36-2-101 to -115 (1996)
(paternity) and §§ 36-2-201 to -210 (1996) (legitimation), repealed by 1997 Tenn. Pub. Acts ch. 477
(codified at Tenn. Code Ann. §§ 36-2-301 to -322 (2001)); Tape H-C & FA # 1 (Tennessee House
of Representatives Children and Family Affairs Committee Mar. 26, 1997) (“This bill is an effort to
try to revise our statutes and bring us into the twentieth century and develop one system for
determining and establishing the parentage of children born out of wedlock.”) (statement of Rep.
Kim McMillan). The 1997 legislation was also designed to correct a particular constitutional infirmity
of the prior statutes.
Significantly, the legislative history shows that the current parentage statutes were not designed to
control questions of parentage where sperm or egg donation is involved. In response to the
observation that the new parentage statutes could potentially allow a sperm donor to file a parentage
claim, Mr. Steve Cobb stated as follows:
I can tell you that the clear intention, discussed intention, of this [bill] was not to deal with
sperm donors at all.... [W]e wanted to put that off for another day.... The intent, and it
should be stated by the sponsor in a colloquy on the floor if necessary, is not to affect that
issue at all.
Tape S-Jud. # 4 (Tennessee Senate Judiciary Committee May 13, 1997). Concerning the question of
maternity where egg donation is involved, the legislative history contains no indication that this
matter was ever contemplated as a potential issue.
In sum, we conclude that Tennessee's parentage and related statutes do not provide for or control
the circumstances of this case. Contrary to the position taken by the dissent which would restrict the
basis for legal maternity to genetic consanguinity alone, we determine that these statutes simply do
not apply to all conceivable parentage determinations. In this regard, we agree with the Court of
Appeals.
3. Tests for Legal Maternity in Other Jurisdictions
In the absence of express guidance from the legislature, the Court of Appeals looked to case law
from other jurisdictions to resolve the dispute of maternity in this case. Among the few jurisdictions
which have addressed cases like this one, where a gestational carrier implanted with donated eggs
seeks parental status of the resulting children and where legislation does not clearly resolve the
matter, two tests for maternity have arisen. Some courts have focused on intent, holding that under
such circumstances the intended “mother” is to be deemed the legal mother. See, e.g., Johnson v.
Calvert, 5 Cal.4th 84, 19 Cal.Rptr.2d 494, 851 P.2d 776 (1993); In re Marriage of Buzzanca, 61
Cal.App.4th 1410, 72 Cal.Rptr.2d 280 (1998); McDonald v. McDonald, 196 A.D.2d 7, 608 N.Y.S.2d
477 (N.Y.App.Div.1994). Other courts have instead focused on genetics and gestation, holding that
genetic connection to the children is of paramount importance in determining legal maternity. See,
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e.g., Culliton v. Beth Israel Deaconess Med. Ctr., 435 Mass. 285, 756 N.E.2d 1133 (2001); Belsito v. Clark,
67 Ohio Misc.2d 54, 644 N.E.2d 760 (1994).
The intent test has developed primarily in California. In Johnson, a married couple was unable to have
children naturally because the wife had undergone a hysterectomy, yet the wife could still produce
eggs. 851 P.2d at 778. The couple entered into a surrogacy agreement with a third-party female
who agreed to give birth to a child on their behalf in exchange for $10,000 and other consideration.
One of the wife's eggs was fertilized with her husband's sperm and was successfully implanted in the
surrogate's uterus. However, when the relationship between the couple and the surrogate
deteriorated, litigation over maternity and custody ensued. Id. Under California's version of the
Uniform Parentage Act, both genetic consanguinity and giving birth were equally cognizable bases
for establishing maternity. Id. at 780-81. The Court declined to recognize two legal mothers. Id. at
781 n. 8. In order to break the tie, the California Supreme Court held that when gestation and
genetic consanguinity “do not coincide in one woman, she who intended to procreate the child-that
is, she who intended to bring about the birth of the child that she intended to raise as her own-is the
natural mother under California law.” Id. at 782.
The genetic test has been set forth most thoroughly by the Ohio Court of Common Pleas in Belsito.
In Belsito, a married couple wanted children, and the wife could produce eggs but could not sustain a
pregnancy. 644 N.E.2d at 760-61. By agreement, one of the wife's eggs was fertilized with the
husband's sperm and then implanted in the uterus of a gestational surrogate (the wife's sister).
Without objection from the surrogate, the couple sought a declaratory judgment of maternity and
paternity. Id. at 761-62. Like California, Ohio had adopted a version of the Uniform Parentage Act
which provided that “maternity can be established by identifying the natural mother through the
birth process or by other means, including DNA blood tests,” as provided by statute. Id. at 763
(citing Ohio Rev.Code Ann. ch. 3111). Also declining to recognize two legal mothers, id., the court
applied a two-stage analysis for establishing maternity. First, if the male and female genetic providers
have not waived parental rights, they must be declared the legal parents. Second, if the female
genetic provider has waived her parental rights, then the gestator is the legal mother. See id. at 767.
On this basis, the court held that the married couple, as the child's genetic progenitors, were the
legal parents. Id. at 767.
Significantly, Tennessee's statutory framework for establishing maternity differs markedly from the
California and Ohio statutes under consideration in Johnson and Belsito. Compare Tenn. Code Ann. §
36-2-302(4) (defining “mother” as “the biological mother of a child born out of wedlock”) and
Tenn. Code Ann. § 36-1-102(10) (defining “biological parents” as “the woman and man who
physically or genetically conceived the child”) with Cal. Civ.Code § 7003(1) (West 1983) (“The
parent and child relationship may be established ... [b]etween a child and the natural mother ... by
proof of her having given birth to the child, or under this part.”), repealed by 1992 Cal. Stat. c. 162
(A.B.2650), § 4 and Ohio Rev.Code Ann. § 3111.02 (West 1992) (“The parent and child relationship
between a child and the child's natural mother may be established by proof of her having given birth
to the child or pursuant to [other sections of the Ohio Revised Code].”). Consequently, neither
California's intent test nor Ohio's genetic test is strictly apposite to our statutory scheme.
Further, both the intent test and the genetic test suffer from inadequacies. For example, in Johnson
the California Supreme Court crafted an unnecessarily broad rule which could afford maternal status
even to a woman who failed to qualify under either of California's two statutory bases for maternity.
See Johnson, 19 Cal.Rptr.2d 494, 851 P.2d at 783. According to Belsito, the intent formulation of
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Johnson has “discarded both genetics and birth as the primary means of identifying the natural
maternal parent,” Belsito, 644 N.E.2d at 764, and provides for, “in effect, a private adoption process
that is readily subject to all the defects and pressures of such a process,” id. at 766. In Tennessee,
unlicensed and unregulated adoption is statutorily prohibited and subject to criminal penalties. See
Tenn. Code Ann. §§ 36-1-108 to -109 (2001).
However, the genetic test of Belsito also has significantly broad implications. In the event that a
dispute were to arise between an intended mother who had obtained eggs from a third-party donor
and a gestational surrogate in whom the eggs had been implanted, the genetic test would implicitly
invalidate any surrogacy agreement. The genetic test could also have practical effects similar to the
“adoption-default model” criticized by In re Marriage of Buzzanca, see 72 Cal.Rptr.2d at 289, in that an
intended “mother” who employs techniques for assisted reproduction including egg donation would
by default have to submit to government-controlled adoption procedures to attain a secure legal
status as “mother.” Policy-wise, the requirement of such regulation may or may not be sound.
Consequently, we decline to adopt either the intent test or the genetic test as a general rule for
resolving this case. We thus vacate the adoption of the intent test of Johnson by the courts below.
4. Factors for Establishing Legal Maternity
In light of the foregoing analysis, we deem it appropriate to decide this case on particularly narrow
grounds.
Therefore, in resolving this case we focus closely on its particular facts. Charles and Cindy, an
unmarried couple, wanted to start a family and agreed to rear a child together permanently as father
and mother, not suspecting that their own relationship would eventually fall apart. Given Cindy's
age, they agreed to fertilize anonymously donated eggs with Charles's sperm and to implant the
fertilized eggs in Cindy's uterus. Before the procedure, Charles and Cindy executed the Recipient
Consent in which Charles acknowledged Cindy's status as “mother” and in which Cindy agreed to
accept all the responsibilities of parenthood:
I, Cindy (wife), understand that the child(ren) conceived by this method will not have my genetic
material, but will have that of the oocyte [egg] donor and my husband [sic]. However, regardless of
the outcome, I will be the mother of any child(ren) born to me as a result of egg donation and
hereby accept all the legal responsibilities required of such a parent.
Cindy was impregnated and carried not just one but three fetuses to term. After a complicated
pregnancy, she gave birth via caesarian section to triplets. Charles allowed Cindy to be named the
“mother” on the children's birth certificates. After the children were born, Charles and Cindy lived
together in an arrangement where both Charles and Cindy performed the role of parent.
Having recounted these events, we now discuss the relevant factors which we consider to be
significant for deciding this case.
i. Genetics
Both statute and sound policy support genetics as an important factor in establishing legal maternity.
Human reproduction as we now know it cannot take place without the involvement of genetic
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material. As analyzed above, Tennessee's domestic relations statutes provide for the establishment of
legal maternity based on genetic consanguinity. See §§ 36-2-302(4) (defining “mother” as “the
biological mother of a child born out of wedlock”), 36-1-102(10) (defining “biological parents” as
“the woman and man who physically or genetically conceived the child”). In emphasizing genetics,
Belsito recognizes and honors an individual's decision to procreate or to refrain from procreating. 644
N.E.2d at 766 (“The procreation of a child, that is, the replication of the unique genes of an
individual, should occur only with the consent of that individual.”(citing Davis, 842 S.W.2d at 588)).
As we held in Davis, such decisions enjoy constitutional protection. 842 S.W.2d at 600-01.
However, our recognition in Davis of the constitutional right to control the disposition of one's
genetic material does not mean that Davis stands for the proposition that genetics must be
paramount in all parentage determinations. In cases such as this one, where a woman has become
intimately involved in the procreation process even though she has not contributed genetic material,
factors other than genetics take on special significance.
ii. Intent
Before the children's birth, both Cindy and the genetic father, Charles, voluntarily demonstrated the
bona fide intent that Cindy would be the children's legal mother, and they agreed that Cindy would
accept all the legal responsibility as well as the legal rights of parenthood. We consider the intent to
take on both parental rights and responsibilities as one important factor among others for resolving
this controversy.
Although our decision in Davis does not control this case, we agree with the Court of Appeals that it
is nonetheless instructive. In Davis, this Court had to decide whether a man could prevent donation
and implantation against his will of a preembryo (an early-stage fertilized egg) containing his genes.
842 S.W.2d at 589-90. We held that just as an individual enjoys a constitutionally-protected right to
procreate, an individual also has a similar right to avoid procreation. Id. at 600-01. We concluded
that disputes over the control of preembryos are to be resolved first by looking to the agreement of
the progenitors and second, in the absence of agreement, by weighing the relative interests of the
male and female providers of reproductive cells. Id. at 604. Davis thus underscored the importance
of intent and agreement with respect to the disposition of an individual's reproductive and genetic
material.
Although Tennessee's parentage statutes recognize maternity on the basis of genetics, see
Tenn.Code Ann. §§ 36-1-102(10), 36-2-302(4), as we have seen that the parentage statutes do not
expressly control this case and thus do not necessarily confine the establishment of legal maternity
to genetics alone. To the contrary, we determine that taking intent into consideration as a factor is
consistent with policy implicit in Tennessee's domestic relations statutes.
Significantly, the artificial insemination statute of Tennessee Code Annotated section 68-3-306
(2001) supports the consideration of intent as a factor for establishing legal maternity. This section is
entitled “Birth from artificial insemination” and is contained in the part of the Tennessee Code
which addresses vital records. It provides as follows: “A child born to a married woman as a result
of artificial insemination, with consent of such married woman's husband, is deemed to be the
legitimate child of the husband and wife.” Tenn. Code Ann. § 68-3-306. Like the parentage statutes,
Code section 68-3-306 does not expressly govern this case because the statute contemplates and
provides for an agreement within the context of marriage; Charles and Cindy were not married, and
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in 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
insemination is not necessarily genetically related to him. The artificial insemination statute thus
reflects a policy which favors taking into account intent in establishing parentage when technological
assistance is involved.
iii. Gestation
Cindy became pregnant and gave birth to the children with the intent of raising them as her own. As
mentioned above, historically gestation “proved genetic parentage beyond doubt” and thus was
conclusive of maternity. The common law thus has presumed that the birth mother is the legal
mother of the child. It is only quite recently that modern technology has made it possible to
separate and to distribute among multiple persons or environments the genetic and gestational roles.
We consider gestation as another important factor in determining legal maternity in this case.
To be sure, as discussed above, genetics remains an irreplaceable component of human
reproduction, and as such genetic consanguinity is and should be particularly important to parentage
determinations. And as our analysis above has shown, Tennessee's domestic relations statutes
expressly account for genetics in parentage determinations. See Tenn. Code Ann. §§ 36-1-102(10), §
36-2-302(4).
However, as our analysis above has also shown, Tennessee's parentage and related statutes were
simply not designed to control the circumstances of this case. To restrict legal maternity to genetic
consanguinity alone where, as in this case, the genetic “mother” is an egg donor who has waived her
parental rights and who has been and remains permanently anonymous would result in the absurdity
of children having, for all practical purposes, no legal mother. A child's knowledge that he or she has
an anonymous and inaccessible mother somewhere in the world would provide only cold comfort,
and demanding such a result in cases like this one could hardly promote the best interests of
children. “Courts must presume that the Legislature did not intend an absurdity and adopt, if
possible, a reasonable construction which provides for a harmonious operation of the laws.” Fletcher,
951 S.W.2d at 382 (citing Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn.1995) and Epstein v. State, 211
Tenn. 633, 366 S.W.2d 914 (1963)).
We further observe that in this case the genetic “mother” has donated her eggs to another and has
correspondingly waived her parental rights, thereby relinquishing her status as legal mother. As
Belsito correctly concludes, “a genetic test cannot be the only basis for determining who will assume
the status of legal parent.” 644 N.E.2d at 767.
Although giving birth is conspicuously absent from Tennessee's parentage statutes, as discussed
above, there is no indication that the General Assembly sought to exclude it as a basis for legal
maternity or even sought to decide questions of maternity at all. In this regard, the artificial
insemination statute is once again significant. In addition to recognizing paternity where artificial
insemination is involved, Tennessee Code Annotated section 68-3-306 confers parental status on a
wife when she gives birth to a child as the result of artificial insemination. This statute displays a
policy which favors recognizing gestation and giving birth as a basis for legal maternity.
Accordingly, we conclude that sound policy and common sense favor recognizing gestation as an
important factor for establishing legal maternity. “Although current technology allows the separation
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between gestation and genetic contribution, it does not follow that gestation is now a less important
part of parenthood.” (citation omitted). In our view, the dissent accords too little significance to
gestation as a factor for deciding this controversy.
iv. The Absence of Controversy Between the Gestator and the Genetic “Mother”
Another factor to consider in resolving this case is the nature of the controversy. Here we are not
faced with a controversy between a birth “mother” and a genetic “mother” where the genetic and
gestational roles have been separated and distributed among two women. In this case, the genetic
“mother” has fully waived her parental rights and remains anonymous. Nor is this a case involving a
dispute between a traditional or gestational surrogate and a genetically-unrelated intended “mother”
who wishes to raise the child as her own. Rather, Cindy became pregnant and gave birth to triplets
on her own behalf, and the sole dispute is between her and the genetic father, Charles. The other
kinds of conflicts present different questions and ones which would be inappropriate for us to
decide here. Instead, we limit our holding today to cases where there is no controversy between the
gestator and the genetic “mother.”
5. Establishing Legal Maternity in This Case
Deciding this case narrowly based on its particular facts, we affirm on separate grounds the holding
of the courts below that Cindy is the legal mother. Our holding that Cindy is the legal mother of
C.K.G., C.A.G., and C.L.G. with all the legal rights and responsibilities of parenthood is based on
the following factors. First, prior to the children's birth, both Cindy, the gestator, and Charles, the
genetic father, voluntarily demonstrated the bona fide intent that Cindy would be the children's legal
mother and agreed that Cindy would accept the legal responsibility as well as the legal rights of
parenthood. Second, Cindy then became pregnant, carried to term, and gave birth to the three
children as her own. Third, this case does not involve a controversy between a gestator and a female
genetic progenitor where the genetic and gestative roles have been separated and distributed among
two women, nor does this case involve a controversy between a traditional or gestational surrogate
and a genetically-unrelated intended mother; our holding today is not designed to control such
controversies. Even though Cindy lacks genetic connection to the triplets, in light of all the factors
considered we determine that Cindy is the children's legal mother. We further conclude that in light
of the factors considered, Charles's genetic paternity does not give him a parental status superior to
that of Cindy.
Having thus concluded that Cindy is the children's legal mother, the question of estoppel is moot,
and we vacate the holding of the Court of Appeals that Charles is estopped to deny Cindy's maternal
status.
III. Conclusion
We conclude that Tennessee's parentage statutes neither provide for nor contemplate the
circumstances of this case, where an unmarried couple has employed techniques for assisted
reproduction involving third-party egg donation to produce children for their own benefit and
where dispute has arisen over the genetically unrelated gestator's legal status as mother. Although in
some jurisdictions courts have fashioned widely applicable tests for maternity where techniques for
assisted reproduction are involved, we decline to adopt as a general rule either the intent test or the
genetic test. Consequently, we vacate the adoption of the intent test by the courts below.
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Instead we affirm on separate and narrower grounds the holding of the courts below that Cindy is
the legal mother of the children C.K.G., C.A.G., and C.L.G. with all the rights and responsibilities of
parenthood. Our holding in this regard depends on the following factors: (1) prior to the children's
birth, both Cindy as gestator and Charles as the genetic father voluntarily demonstrated the bona
fide intent that Cindy would be the children's legal mother and agreed that she would accept the
legal responsibility as well as the legal rights of parenthood; (2) Cindy became pregnant, carried to
term, and gave birth to the children as her own; and (3) this case does not involve a controversy
between a gestator and a female genetic progenitor where the genetic and gestative roles have been
separated and distributed among two women, nor does this case involve a controversy between a
traditional or gestational surrogate and a genetically-unrelated intended mother. In our view, given
the far-reaching, profoundly complex, and competing public policy considerations necessarily
implicated by the present controversy, crafting a broadly applicable rule for the establishment of
maternity where techniques for assisted human reproduction are involved is more appropriately
addressed by the Tennessee General Assembly.
Having concluded that Cindy is the children's legal mother, the question of estoppel is moot, and we
vacate the holding of the Court of Appeals that Charles is estopped to deny Cindy's maternal status.
However, we affirm in full the judgments of the juvenile court and Court of Appeals concerning
comparative fitness, custody, child support, and visitation. Costs of this appeal are taxed to the
appellant, Charles, for which execution may issue if necessary.
6.6.2

The Possibility of Inheriting Through The Woman

Matter of Petition Of Successor Trustees for the Construction of three inter vivos trusts
created in 1959 f/b to the Issue of K. Doe, C. Doe, and M. , 793 N.Y.S. 2d 878 (2005).
PREMINGER, J.
In creating trusts for the benefit of the issue of his eight children, the settlor required that
“adoptions shall not be recognized.” One of the settlor's daughters (“K. Doe”) and her husband
became the parents of fraternal twins by virtue of a surrogacy arrangement, using an anonymous
donor egg, fertilized in vitro with the sperm of K. Doe's husband, and carried to term by an
unrelated surrogate mother. Petitioners, successors trustees, bring this construction proceeding to
determine whether the settlor's exclusion of “adoptions “excludes these children as beneficiaries.
The eight identical inter vivos trust instruments, created by the settlor, an attorney, in 1959, required
that the net income of each trust be paid to such charitable organizations as appointed by each child
until September 1, 1979, after which date the net income of each trust was to be paid to the “issue”
or “descendants” of each child. As of December 31, 2001, the issue of five of the settlor's eight
children were receiving income from the trusts. The income from the remaining three trusts was
being distributed in equal shares per capita to the fourteen then-living grandchildren of the settlor as
specified by the trust instruments.
As to the twins' birth, K. Doe and her husband arranged for a genetically unrelated surrogate mother
in the state of California to be impregnated with the eggs of an anonymous donor fertilized in vitro
by K. Doe's husband's sperm. After the twins' birth, with consent of the surrogate mother, K. Doe
337

and her husband obtained a Judgment of Parental Relationship from the Superior Court of
California to establish them as the twins' sole legal parents.
If the twins are not excluded by the terms of the trust prohibiting recognition of adopted children,
they are: 1) income beneficiaries and presumptive remaindermen of the trust created for benefit of
the issue of their mother, K. Doe; 2) eligible to receive their per capita share of the income of trusts
for two of the settlor's issue who currently have no issue; 3) permissible beneficiaries of the exercise
of the lifetime power of appointment reserved to the trustees to make discretionary principal
distributions to the settlor's grandchildren; and 4) permissible beneficiaries of the testamentary
powers of appointment given to K. Doe and her seven siblings over their respective remainders.
The Court has appointed a guardian at litem for the twins, who argues they should be included, as
well as one for the infant grandchildren of the settlor whose interests in the trusts will be affected by
this decision, who argues that they should not.
In a construction proceeding, the intent of the settlor controls. (In re Balsam's Trust, 58 Misc.2d 672,
677, 296 N.Y.S.2d 969; see Matter of Buechner, 226 N.Y. 440, 443, 123 N.E. 741). The reproductive
technologies involved in this case in vitro fertilization and gestational surrogacy were established in
the 1970s, well after these trusts were settled. It is unlikely that the settlor's views of these methods
of reproduction can be discovered. Even if the court were to consider the trusts ambiguous and
allow extrinsic evidence on this question, the petitioning trustees candidly state that they know of
none. This construction question is thus confined to the language employed in the trusts.
Looking at that language, one interpretation of the settlor's exclusion of “adoptions” is that he
intended to exclude all non-blood relations. However, in examining, as the court must, the
document 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
is clear that was not his intent. The settlor provided a means for spouses, non-blood relatives, to
take under the trusts. Upon the death of a child, the trustees are directed to distribute any remaining
trust principal to the settlor's then-living issue, other than the estate of the child, and the spouse of
such issue in such proportions as the child may designate by will. In default of the child's exercise of
the testamentary power of appointment, the remainder is to be distributed to the issue of the child,
or in default of such issue, to the settlor's issue per stirpes. Although the possibility of a non-blood
relative's taking a portion of the remainder depends on an affirmative exercise of the power of
appointment by a child, the settlor contemplated that his non-blood relatives might take a portion of
the trust remainder. Similarly, certain trustees are permitted in their discretion to appoint principal to
“grandchildren and more remote issue of the Settlor and spouses of such grandchildren and more
remote issue.” Thus, under the trusts, there is the possibility of a non-blood relation being a
beneficiary.
This is the main language in the trusts that bears on this question, and nothing else suggests that the
court should extend “adoptions” to include the reproductive technologies at issue in this case. When
the settlor excluded “adoptions,” it cannot be said that he intended to exclude all means of assisted
reproduction; such means of assisted reproduction were not then in existence, and no language in
the trusts anticipates technologies relating to birth that may be developed in the future.
With some evidence in the trust documents that the settlor did not intend to exclude all non-blood
relations, the court turns to the question of whether the California judgment should be considered
an adoption, and if not, whether New York should afford it full faith and credit.
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Under California law, a judgment of parental relationship is entirely distinct from an adoption
proceeding, and the two are governed by different divisions of the California Family Code. The
Judgment of Parental Relationship obtained by K. Doe and her spouse was entered in a proceeding
brought under sections 7630 and 7650 of Division 12 of the California Family Code, which govern
the establishment of parental relationships, not adoptions. The judgment declared K. Doe and her
husband to be “the sole and legal parents” of the twins and the surrogate mother and her husband
to be “strangers in blood” to the twins. The judgment ordered amendment of the twins' birth
certificates to list K. Doe as mother and her husband as father. In contrast, California adoptions are
governed by division 13 of the California Family Code. California treats these two methods of
establishing parental rights as distinct in nature. A California gestational surrogacy arrangement,
where, as here, the surrogate mother is implanted with an egg fertilized in vitro, is not subject to the
adoption statutes (Johnson v. Calvert, 5 Cal.4th 84, 96, 19 Cal.Rptr.2d 494, 851 P.2d 776, 783-784
[Cal.1993]).
It is clear that in California the twins were not adopted, and recognizing this result in New York is
appropriate. Surrogacy is not the functional equivalent of adoption. For example, in gestational
surrogacies, as here where the birth mother is implanted with a fertilized ovum genetically unrelated
to her the basic question of who should be considered the natural mother must be answered in light
of the advanced technologies that permit such a procedure. In Johnson, California developed an
analysis that has become known as the intent test: those who intended to be parents, absent other
compelling circumstances, should be considered the parents. Applying that test, the Johnson court
declared the genetic mother, who intended from the beginning to be the mother, instead of the
gestational surrogate mother, to be the natural mother (Johnson, 5 Cal.4th at 93-94, 19 Cal.Rptr.2d
494, 851 P.2d at 781-782).
New York also has a separate article, article 8 (§§ 120-124) of the Domestic Relations Law, dealing
with surrogate parenting. Unlike California, it forbids recognition of surrogate parenting contracts,
and considers them void and unenforceable (Domestic Relations Law § 122). Nonetheless, New
York courts entertain petitions for declarations of maternity, and do not require parents to go
through an adoption proceeding in cases of in vitro fertilization and gestational surrogacy
arrangements (see e.g. Arredondo v. Nodelman, 163 Misc.2d 757, 622 N.Y.S.2d 181 [decided before
enactment of article 8]; see Matter of Andres A., 156 Misc.2d 65, 591 N.Y.S.2d 946 [related proceeding]
), and apply the intent test to determine who the “natural mother” is in such an arrangement in the
context of a divorce and custody dispute (McDonald v. McDonald, 196 A.D.2d 7, 608 N.Y.S.2d 477
[decided after enactment of article 8]; see also Kass v. Kass, 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696
N.E.2d 174). While the practice commentaries to Domestic Relations Law § 122 state that surrogacy
arrangements are “specialized adoption agreements,” (Scheinkman, McKinney's Unconsol. L. of
N.Y., Book 14, Domestic Relations Law § 122, at 321 [1999]), adoption need not follow a
surrogate parenting arrangement, as it does not in California (Johnson, 5 Cal.4th at 96, 19 Cal.Rptr.2d
494, 851 P.2d at 783-784) and did not in this case.
Finally, no reasoning justifies a denial of full faith and credit to the California judgment. Where a
judgment of a sister state is issued with jurisdiction of all parties, New York must afford it full faith
and credit (U.S. Const., art. IV, § 1; 28 USCA §§ 1738, 1738A, 1738B; see e.g. In re Michael H., 198
A.D.2d 414, 415, 604 N.Y.S.2d 573 [1993] [full faith given to California judgment regarding
paternity and visitation rights]; Estate of D'Angelo, 139 Misc.2d 5, 10, 526 N.Y.S.2d 729 [full faith
given to California adoption decree] see also Hampton v. M'Connel, 16 U.S. 234, 235, 3 Wheat. 234, 4
339

L.Ed. 378; Domestic Relations Law § 77-b). Although New York forbids enforcement of surrogacy
contracts, the enforcement of the contract is not at issue here. More importantly, the legislature did
not punish or prejudice the rights of children born from such arrangements. Instead, the statutory
scheme explicitly contemplates full and fair proceedings to determine “parental rights, status and
obligations” (Domestic Relations Law § 124), notwithstanding the surrogate parenting contract.
Although for different reasons, a New York court could have reached the same conclusions as to
who the twins' parents are as the California court did, and full faith and credit cannot be denied the
California judgment on grounds of some countervailing New York public policy (see Baker v. General
Motors Corp., 522 U.S. 222, 233, 118 S.Ct. 657, 139 L.Ed.2d 580 [1998]; cf. Matter of May, 305 N.Y.
486, 114 N.E.2d 4).
Accordingly, the Court holds that the twins are not excluded from the benefits of the John Doe
trusts by virtue of the adoption exclusion.
Settle decree.

340

Part II —The Testacy System
Chapter Seven: Testamentary Freedom
7.1

Introduction

A person spends a lifetime accumulating property. Some people acquire more resources than
others. Nonetheless, regardless of the size of the estate, the one who accrues the property wants to
control what happens to it after he or she dies. The majority of people transfer their property using
non-probate instruments like trusts, joint bank accounts and life insurance. In legal terms, property
consists of a bundle of sticks or rights, including the right to include, the right to exclude, and the
right to dispose. It is clear that, during life, a person has a right to dispose of his or her property by
gift or sale. Should the right to dispose of property survive the death of the owner of that property?
The right to dispose of property at death is a separate property right that belongs to the owner of
the property. Therefore, as long as the person complies with the law, he or she has the right to
control the distribution of his or her property. However, testamentary freedom is not absolute
because preexisting obligations may have priority over testamentary dispositions. Since the right to
dispose of property belongs to the testator, he or she may put reasonable restrictions on a person’s
right to inherit his or her estate. In this chapter, we will examine the testator’s right to dispose and to
place restrictions on the receipt of his or her property.
7.1.1. The Decedent’s Right to Control the Distribution of Property
The next case involves the law of takings. According to the Fifth Amendment, private
property cannot be taken for public use unless the government pays the private property owner just
compensation. In takings jurisprudence, property is broadly defined to include all of the rights in the
bundle of sticks of property ownership. Therefore, if the government, through eminent domain or
regulation, takes any one of those rights, the private property owner is entitled to just compensation.
Although the case discussed below deals with the issue of takings, the case is included because it
stands for the proposition that “the right to pass on valuable property to one’s heirs” is included in
the bundle of sticks that make up property ownership. Consequently, if the government regulation
takes away that right, the private property owner must be compensated.

Hodel v. Irving, 481 U.S. 704 (1987)
O’CONNOR, Justice.
The question presented is whether the original version of the “escheat” provision of the Indian
Land Consolidation Act of 1983, Pub.L. 97-459, Tit. II, 96 Stat. 2519, effected a “taking” of
appellees' decedents' property without just compensation.
I
Towards the end of the 19th century, Congress enacted a series of land Acts which divided the
communal reservations of Indian tribes into individual allotments for Indians and unallotted lands
341

for non-Indian settlement. This legislation seems to have been in part animated by a desire to force
Indians to abandon their nomadic ways in order to “speed the Indians' assimilation into American
society,” Solem v. Bartlett, 465 U.S. 463, 466 (1984), and in part a result of pressure to free new lands
for further white settlement. Ibid. Two years after the enactment of the General Allotment Act of
1887, ch. 119, 24 Stat. 388, Congress adopted a specific statute authorizing the division of the Great
Reservation of the Sioux Nation into separate reservations and the allotment of specific tracts of
reservation land to individual Indians, conditioned on the consent of three-fourths of the adult male
Sioux. Act of Mar. 2, 1889, ch. 405, 25 Stat. 888. Under the Act, each male Sioux head of household
took 320 acres of land and most other individuals 160 acres. 25 Stat. 890. In order to protect the
allottees from the improvident disposition of their lands to white settlers, the Sioux allotment statute
provided that the allotted lands were to be held in trust by the United States. Id., at 891. Until 1910,
the lands of deceased allottees passed to their heirs “according to the laws of the State or Territory”
where the land was located, ibid., and after 1910, allottees were permitted to dispose of their interests
by will in accordance with regulations promulgated by the Secretary of the Interior. 36 Stat. 856, 25
U.S.C. § 373. Those regulations generally served to protect Indian ownership of the allotted lands.
The policy of allotment of Indian lands quickly proved disastrous for the Indians. Cash generated by
land sales to whites was quickly dissipated, and the Indians, rather than farming the land themselves,
evolved into petty landlords, leasing their allotted lands to white ranchers and farmers and living off
the meager rentals. Lawson, Heirship: The Indian Amoeba, reprinted in Hearing on S. 2480 and S. 2663
before the Senate Select Committee on Indian Affairs, 98th Cong., 2d Sess., 82-83 (1984). The
failure of the allotment program became even clearer as successive generations came to hold the
allotted lands. Thus 40-, 80-, and 160-acre parcels became splintered into multiple undivided
interests in land, with some parcels having hundreds, and many parcels having dozens, of owners.
Because the land was held in trust and often could not be alienated or partitioned, the fractionation
problem grew and grew over time.
A 1928 report commissioned by the Congress found the situation administratively unworkable and
economically wasteful. L. Meriam, Institute for Government Research, The Problem of Indian
Administration 40-41. Good, potentially productive, land was allowed to lie fallow, amidst great
poverty, because of the difficulties of managing property held in this manner. Hearings on H.R.
11113 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular
Affairs, 89th Cong., 2d Sess., 10 (1966) (remarks of Rep. Aspinall). In discussing the Indian
Reorganization Act of 1934, Representative Howard said:
“It is in the case of the inherited allotments, however, that the administrative costs become
incredible.... On allotted reservations, numerous cases exist where the shares of each
individual heir from lease money may be 1 cent a month. Or one heir may own minute
fractional shares in 30 or 40 different allotments. The cost of leasing, bookkeeping, and
distributing the proceeds in many cases far exceeds the total income. The Indians and the
Indian Service personnel are thus trapped in a meaningless system of minute partition in
which all thought of the possible use of land to satisfy human needs is lost in a mathematical
haze of bookkeeping.” 78 Cong.Rec. 11728 (1934).
In 1934, in response to arguments such as these, the Congress acknowledged the failure of its policy
and ended further allotment of Indian lands. Indian Reorganization Act of 1934, ch. 576, 48 Stat.
984, 25 U.S.C. § 461 et seq.
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But the end of future allotment by itself could not prevent the further compounding of the existing
problem caused by the passage of time. Ownership continued to fragment as succeeding generations
came to hold the property, since, in the order of things, each property owner was apt to have more
than one heir. In 1960, both the House and the Senate undertook comprehensive studies of the
problem. See House Committee on Interior and Insular Affairs, Indian Heirship Land Study, 86th
Cong., 2d Sess. (Comm. Print 1961); Senate Committee on Interior and Insular Affairs, Indian
Heirship Land Survey, 86th Cong., 2d Sess. (Comm. Print 1960-1961). These studies indicated that
one-half of the approximately 12 million acres of allotted trust lands were held in fractionated
ownership, with over 3 million acres held by more than six heirs to a parcel. Id., at pt. 2, p. X.
Further hearings were held in 1966, Hearings on H.R. 11113, supra, but not until the Indian Land
Consolidation Act of 1983 did the Congress take action to ameliorate the problem of fractionated
ownership of Indian lands.
Section 207 of the Indian Land Consolidation Act-the escheat provision at issue in this caseprovided:
“No undivided fractional interest in any tract of trust or restricted land within tribe's
reservation or otherwise subjected to a tribe's jurisdiction shall descedent [sic] by intestacy or
devise but shall escheat to that tribe if such interest represents 2 per centum or less of the
total acreage in such tract and has earned to its owner less than $100 in the preceding year
before it is due to escheat.” 96 Stat. 2519.
Congress made no provision for the payment of compensation to the owners of the interests
covered by § 207. The statute was signed into law on January 12, 1983, and became effective
immediately.
The three appellees-Mary Irving, Patrick Pumpkin Seed, and Eileen Bissonette-are enrolled members
of the Oglala Sioux Tribe. They are, or represent, heirs or devisees of members of the Tribe who
died in March, April, and June 1983. Eileen Bissonette's decedent, Mary Poor Bear-Little Hoop
Cross, purported to will all her property, including property subject to § 207, to her five minor
children in whose name Bissonette claims the property. Chester Irving, Charles Leroy Pumpkin
Seed, and Edgar Pumpkin Seed all died intestate. At the time of their deaths, the four decedents
owned 41 fractional interests subject to the provisions of § 207. App. 20, 22-28, 32-33, 37-39. The
Irving estate lost two interests whose value together was approximately $100; the Bureau of Indian
Affairs placed total values of approximately $2,700 on the 26 escheatable interests in the Cross estate
and $1,816 on the 13 escheatable interests in the Pumpkin Seed estates. But for § 207, this property
would have passed, in the ordinary course, to appellees or those they represent.
Appellees filed suit in the United States District Court for the District of South Dakota, claiming
that § 207 resulted in a taking of property without just compensation in violation of the Fifth
Amendment. The District Court concluded that the statute was constitutional. It held that appellees
had no vested interest in the property of the decedents prior to their deaths and that Congress had
plenary authority to abolish the power of testamentary disposition of Indian property and to alter
the rules of intestate succession.
The Court of Appeals for the Eighth Circuit reversed. Irving v. Clark, 758 F.2d 1260 (1985).
Although it agreed that appellees had no vested rights in the decedents' property, it concluded that
their decedents had a right, derived from the original Sioux allotment statute, to control disposition
343

of their property at death. The Court of Appeals held that appellees had standing to invoke that
right and that the taking of that right without compensation to decedents' estates violated the Fifth
Amendment.
II
The Court of Appeals concluded that appellees have standing to challenge § 207. 758 F.2d, at 12671268. The Government does not contest this ruling. As the Court of Appeals recognized, however,
the existence of a case or controversy is a jurisdictional prerequisite to a federal court's deliberations.
Id., at 1267, n. 12. We are satisfied that the necessary case or controversy exists in this case. Section
207 has deprived appellees of the fractional interests they otherwise would have inherited. This is
sufficient injury-in-fact to satisfy Article III of the Constitution. See Singleton v. Wulff, 428 U.S. 106,
112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976).
In addition to the constitutional standing requirements, we have recognized prudential standing
limitations. As the court below recognized, one of these prudential principles is that the plaintiff
generally must assert his own legal rights and interests. 758 F.2d, at 1267-1268. That general
principle, however, is subject to exceptions. Appellees here do not assert that their own property
rights have been taken unconstitutionally, but rather that their decedents' right to pass the property
at death has been taken. Nevertheless, we have no difficulty in finding the concerns of the prudential
standing doctrine met here.
For obvious reasons, it has long been recognized that the surviving claims of a decedent must be
pursued by a third party. At common law, a decedent's surviving claims were prosecuted by the
executor or administrator of the estate. For Indians with trust property, statutes require the Secretary
of the Interior to assume that general role. 25 U.S.C. §§ 371-380. The Secretary's responsibilities in
that capacity, however, include the administration of the statute that the appellees claim is
unconstitutional, see 25 U.S.C. §§ 2202, 2209, so that he can hardly be expected to assert appellees'
decedents' rights to the extent that they turn on that point. Under these circumstances, appellees can
appropriately serve as their decedents' representatives for purposes of asserting the latters' Fifth
Amendment rights. They are situated to pursue the claims vigorously, since their interest in receiving
the property is indissolubly linked to the decedents' right to dispose of it by will or intestacy. A
vindication of decedents' rights would ensure that the fractional interests pass to appellees; pressing
these rights unsuccessfully would equally guarantee that appellees take nothing. In short, permitting
appellees to raise their decedents' claims is merely an extension of the common law's provision for
appointment of a decedent's representative. It is therefore a “settled practice of the courts” not open
to objection on the ground that it permits a litigant to raise third parties' rights. Tyler v. Judges of Court
of Registration, 179 U.S. 405, 406, 21 S.Ct. 206, 207, 45 L.Ed. 252 (1900).
III
The Congress, acting pursuant to its broad authority to regulate the descent and devise of Indian
trust lands, Jefferson v. Fink, 247 U.S. 288, 294 (1918), enacted § 207 as a means of ameliorating, over
time, the problem of extreme fractionation of certain Indian lands. By forbidding the passing on at
death of small, undivided interests in Indian lands, Congress hoped that future generations of
Indians would be able to make more productive use of the Indians' ancestral lands. We agree with
the Government that encouraging the consolidation of Indian lands is a public purpose of high
order. The fractionation problem on Indian reservations is extraordinary and may call for dramatic
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action to encourage consolidation. The Sisseton-Wahpeton Sioux Tribe, appearing as amicus curiae in
support of the Secretary of the Interior, is a quintessential victim of fractionation. Forty-acre tracts
on the Sisseton-Wahpeton Lake Traverse Reservation, leasing for about $1,000 annually, are
commonly subdivided into hundreds of undivided interests, many of which generate only pennies a
year in rent. The average tract has 196 owners and the average owner undivided interests in 14
tracts. The administrative headache this represents can be fathomed by examining Tract 1305,
dubbed “one of the most fractionated parcels of land in the world.” Lawson, Heirship: The Indian
Amoeba, reprinted in Hearing on S. 2480 and S. 2663 before the Senate Select Committee on Indian
Affairs, 98th Cong., 2d Sess., 85 (1984). Tract 1305 is 40 acres and produces $1,080 in income
annually. It is valued at $8,000. It has 439 owners, one-third of whom receive less than $.05 in
annual rent and two-thirds of whom receive less than $1. The largest interest holder receives $82.85
annually. The common denominator used to compute fractional interests in the property is
3,394,923,840,000. The smallest heir receives $.01 every 177 years. If the tract were sold (assuming
the 439 owners could agree) for its estimated $8,000 value, he would be entitled to $.000418. The
administrative costs of handling this tract are estimated by the Bureau of Indian Affairs at $17,560
annually. Id., at 86, 87. See also Comment, Too Little Land, Too Many Heirs-The Indian Heirship
Land Problem, 46 Wash.L.Rev. 709, 711-713 (1971).
This Court has held that the Government has considerable latitude in regulating property rights in
ways that may adversely affect the owners. (Citations omitted.) The framework for examining the
question whether a regulation of property amounts to a taking requiring just compensation is firmly
established and has been regularly and recently reaffirmed. (citations omitted).
There is no question that the relative economic impact of § 207 upon the owners of these property
rights can be substantial. Section 207 provides for the escheat of small undivided property interests
that are unproductive during the year preceding the owner's death. Even if we accept the
Government's assertion that the income generated by such parcels may be properly thought of as de
minimis, their value may not be. While the Irving estate lost two interests whose value together was
only approximately $100, the Bureau of Indian Affairs placed total values of approximately $2,700
and $1,816 on the escheatable interests in the Cross and Pumpkin Seed estates. (citations omitted).
These are not trivial sums. Of course, the whole of appellees' decedents' property interests were not
taken by § 207. Appellees' decedents retained full beneficial use of the property during their lifetimes
as well as the right to convey it inter vivos. There is no question, however, that the right to pass on
valuable property to one's heirs is itself a valuable right. Depending on the age of the owner, much
or most of the value of the parcel may inhere in this “remainder” interest. See 26 CFR § 20.2031-7(f)
(Table A) (1986) (value of remainder interest when life tenant is age 65 is approximately 32% of the
whole).
In holding that complete abolition of both the descent and devise of a particular class of property
may be a taking, we reaffirm the continuing vitality of the long line of cases recognizing the States',
and where appropriate, the United States', broad authority to adjust the rules governing the descent
and devise of property without implicating the guarantees of the Just Compensation Clause. See, e.g.,
Irving Trust Co. v. Day, 314 U.S. 556, 562, 62 S.Ct. 398, 401, 86 L.Ed. 452 (1942); Jefferson v. Fink, 247
U.S., at 294, 38 S.Ct., at 518. The difference in this case is the fact that both descent and devise are
completely abolished; indeed they are abolished even in circumstances when the governmental
purpose sought to be advanced, consolidation of ownership of Indian lands, does not conflict with
the further descent of the property.
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There is little doubt that the extreme fractionation of Indian lands is a serious public problem. It
may well be appropriate for the United States to ameliorate fractionation by means of regulating the
descent and devise of Indian lands. Surely it is permissible for the United States to prevent the
owners of such interests from further subdividing them among future heirs on pain of escheat. See
Texaco, Inc. v. Short, 454 U.S. 516, 542, 102 S.Ct. 781, 799, 70 L.Ed.2d 738 (1982) (Brennan, J.,
dissenting). It may be appropriate to minimize further compounding of the problem by abolishing
the descent of such interests by rules of intestacy, thereby forcing the owners to formally designate
an heir to prevent escheat to the Tribe. What is certainly not appropriate is to take the extraordinary
step of abolishing both descent and devise of these property interests even when the passing of the
property to the heir might result in consolidation of property. Accordingly, we find that this
regulation, in the words of Justice Holmes, “goes too far.” Pennsylvania Coal Co. v. Mahon, 260 U.S., at
415, 43 S.Ct., at 160. The judgment of the Court of Appeals is
Affirmed.
Notes and Questions
1. According to the Hodel court, the right to dispose of property is included in the bundle of rights
of property ownership. Therefore, the owner of the property has a right to dispose of that property,
but the heirs of that property owner do not have a right to inherit. Since the statute deprived the
decedent of the right to pass on property to their heirs, the Court found that private property had
been taken. How could the statute be amended to change the outcome of the case?
2. Section 207, the provision of the Indian Land Consolidation Act at issue in the Hodel case,
abolished the power of testamentary disposition of Indian property and altered the rules of intestate
succession. The purpose of the provision was to ameliorate the problem of fractionated ownership
of Indian lands80 by encouraging consolidation. The government hoped to accomplish that goal by
prohibiting the passing on at death of small, undivided interests in Indian lands. Thus, if a person
owned the land impacted by the Act, he or she could not devise it in his will and it could not be
inherited by his or her intestate heirs.
3. Why did the Court conclude that the “complete abolition of both descent and devise of a
particular class of property” was a taking?

Ostrander v. Preece, 196 N.E. 670 (Ohio 1935)
Error to Court of Appeals, Lucas County.
Action by one Preece, administrator with the will annexed of the estate of Joseph M. Stoddard,
deceased, and others against one Ostrander, administrator of the estate of Clara H. Stoddard,
The Court used Tract 1305 to show the impact of the problem. The language from the case states “Tract 1305 is 40
acres and produces $1,080 in income annually. It is valued at $8,000. It has 439 owners, one-third of whom receive less
than $.05 in annual rent and two-thirds of whom receive less than $1. The largest interest holder receives $82.85
annually. The common denominator used to compute fractional interests in the property is 3,394,923,840,000. The
smallest heir receives $.01 every 177 years. If the tract were sold (assuming the 439 owners could agree) for its estimated
$8,000 value, he would be entitled to $.000418. The administrative costs of handling this tract are estimated by the
Bureau of Indian Affairs at $17,560 annually.”
80

346

deceased, and others. To review a judgment of the Court of Appeals which affirmed a judgment of
the court of common pleas, defendants bring error.
Affirmed.
This is an action involving the constitutionality of section 10503-18, General Code, governing the
right to transmit and inherit property ‘when the surviving spouse or other heir at law or legatee dies
within three days after the date of death of the decedent, or within thirty days after the date of death
of such decedent if such death resulted from a common accident. * * *’
The controlling facts are these: Joseph M. Stoddard died testate on October 24, 1932, from natural
causes. His wife, Clara H., died intestate on October 27, 1932, likewise from natural causes. Each
decedent left brothers, sisters, nieces, and nephews. The will of Joseph M. Stoddard left all his
property, valued at $25,000, to his wife and ‘to her heirs and assigns forever,’ and named her as
executrix. The wife had assisted her husband in the accumulation and saving of his property and
estate. Inasmuch as the wife died within three days from the date of death of her husband, the heirs
at law of the husband claim his entire estate by virtue of section 10503-18, General Code. The heirs
of the wife contend, however, that they are entitled to his estate under the will; that that section of
the Code is unconstitutional; and that the claims of the heirs of Joseph M. Stoddard based thereon
are invalid.
The administrator with the will annexed of the estate of Joseph M. Stoddard filed suit in the court of
common pleas of Lucas county, alleging that he was in doubt as to the persons entitled to the estate
and that he was unable, by reason thereof, to make proper application for the determination of
inheritance tax, and praying direction and judgment of the court respecting the rights of the heirs of
each decedent in and to said estate.
The heirs of Clara H. Stoddard, all of whom were named as parties defendant in the action, filed an
answer asserting their claims substantially as mentioned above after admitting the facts alleged in the
plaintiff's petition, which covered the time of death of each decedent, the relationship of the parties
to the decedent, the execution and probate of the will.
On the trial of the case judgment was rendered in favor of the heirs of Joseph M. Stoddard,
deceased, which was affirmed by the Court of Appeals of Lucas county. Error proceedings were
filed in this court as of right on the ground that the questions herein arise out of the Constitution of
the state of Ohio.
DAY, Judge.
Is section 10503-18, General Code, constitutional? Does it deprive the heirs of Clara H. Stoddard of
their vested or property rights without due process of law? Does it establish a presumption of the
order of death contrary to the facts? These are the major questions raised by plaintiffs in error and
we shall consider them in their order.
A careful reading of the statute will disclose that, in fact, it establishes no presumption of the order
of death. It provides that ‘no one of such persons shall be presumed to have died first’; that the
estate of such first decedent shall pass and descend as though he had survived such heir at law or
legatee. The right to indulge in a presumption of the order of death is expressly prohibited therein. It
347

does, however, direct the course of descent and distribution of property of those who have died
within the time and in the manner therein described. This is clearly within the constitutional powers
of the General Assembly and does not constitute deprivation of property without due process of
law.
The right to transmit or inherit property is not an inherent or natural right but is purely a statutory
right and subject to legislative control and restriction. (Citations omitted).
A person cannot, of course, be divested of his vested rights without due process of law, and a
present vested right ‘can in no wise be affected by the laws of descent and distribution. Oleff, Adm'r,
v. Hodapp, 129 Ohio St. 432, 195 N. E. 838.
There are no heirs, but only heirs apparent, to the living, persons with mere expectancies or
possibilities of inheritance which may be fulfilled or defeated, defending upon various contingencies
and situations. An heir apparent, therefore, has no vested right in the estate of his ancestor prior to
the latter's death, and consequently no vested property rights therein. Legislation dealing with estates
of persons who die after its effective date does not deal with vested rights. Plaintiffs in error, having
had no present vested rights in the estate of Joseph M. Stoddard at the time the statute in question
went into effect, could not have been deprived thereof.
A legislative enactment, repealing, modifying, or changing the course of descent and distribution of
property and the right to inherit or transmit property is not an unlawful interference with or
deprivation of vested rights, and, unless expressly inhibited by constitutional provision, is to be
deemed valid.
We find nothing constitutionally objectionable in section 10503-18, General Code.
Judgment affirmed.
Notes, Problems, and Questions
1. If the Ostrander case was litigated after the Hodel opinion was issued, what would be the possible
outcome of the case?
2. In order to prepare a will disposing of property, the testator must be mentally competent. If a
person has the right to dispose of his or her property as he or she wishes, why should the person
have to pass a mental competency test? Should a person who is physically incapacitated be able to
prepare a valid will?
3. Even if the person is found to have been in sound mind at the time of the execution of the will,
the court may refuse to probate the will if it concludes that the will was a result of undue influence,
insane delusion or duress. Does the application of these doctrines infringe on the person’s right to
transmit property at death?
4. Should the inheritance be abolished? Should we have a system where the portion of land allotted
to the individual ceases to belong to him or her upon death and reverts to society?

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5. Suppose that Congress required registration of handguns and assault weapons, prohibited sale
and provided that at the death of the owner the weapons became the property of the government to
redistribute. Would that be constitutional?
Class Discussion Tool
Janet executed a will leaving her house to her son, Terrance. The jurisdiction had a statute that
prohibited convicted felons from inheriting property if they still owed restitution for their crimes.
Terrance was convicted of armed robbery and sentenced to seven years in prison. He was also
ordered to pay $50,000 in restitution. When Janet died, Terrance had three years left on his sentence
and he had not paid any money towards the restitution. The state’s attorney filed a motion seeking
to have Janet’s house sold to pay the $50,000 in restitution. In the alternative, the state’s attorney
asked the court to attach a $50,000 lien on the house. Evaluate the constitutionality of the statute
and the potential court action.
7.2

The Decedent’s Right to Place Restrictions on the Right to Inherit

Since children do not have the right to inherit from their parents, they can be totally
disinherited. Nonetheless, the majority of persons who prepare wills tend not to disinherit their
children. Based on the particular circumstances, the testator may decide to place some type of
condition or restriction on the child’s right to inherit. Courts usually uphold those conditions unless
they require the heir to engage in an activity that is illegal, unconstitutional or against public policy.
Also, Courts will not enforce conditions that infringe on fundamental or constitutional rights. As the
next two cases indicate, factually similar cases can have different judicial outcomes
7.2.1

Some Restrictions are Unreasonable

Maddox & al. v. Maddox’s adm’r & als., 11 Grat., Va. 804 (Va. 1854)
1. A member of the Society of Friends, by his will, gives a legacy of a remainder after a life interest,
to his niece M, “during her single life, and forever, if her conduct should be orderly, and she remain
a member of the Society of Friends.” When M arrived at a marriageable age, there were but five or
six unmarried men of the society in the neighborhood in which she lived: And during the life estate
she married a man not a member of the Society of Friends, and by that act she ceased to be a
member of the society.
Held:
1. The condition is an unreasonable restraint upon marriage, and is void.
2. There being no bequest over, and no specific direction that upon breach of the condition the
legacy shall fall into the residuum of the estate, the condition is therefore in terrorem merely, and does
not avoid the bequest.
2. On a bequest of a legacy upon a condition requiring any religious qualification, the condition is
against the policy of the law of Virginia, and therefore void.
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3. If the condition be a condition precedent, the legatee can take the legacy free from the condition,
or if the legacy lapses: And it seems that the legatee will take a legacy of personal property; though a
devise of land would fail.
This was a suit in equity in the Circuit court of Hanover county, by Wilson Maddox and Martha Jane
Maddox against William G. Maddox, as administrator de bonis non with the will annexed of John
Maddox, and others, claiming as residuary legatees of John Maddox deceased. The plaintiffs claimed
that the defendants, who were also legatees of John Maddox, had forfeited their interest in his estate
by violating the condition upon which the legacies were given. The facts are stated by Judge LEE in
his opinion. The decree below was in favor of the defendants. Whereupon the plaintiffs applied to
this court for an appeal, which was allowed.
LEE, J.
The testator, who was a member of the Society of Friends, departed this life in the year 1834. By a
codicil to his will, dated on the 7th of June 1834, after certain specific bequests, he directs the
proceeds of his estate, which was to be converted into money, to be divided into three equal parts,
and to be disposed of as follows: One-third for the benefit of his father during his natural life; one
other third to be applied to the payment of a bond due his brother Thomas Maddox, or whatever
sum might be due upon such bond; and the interest of the remaining third to go to his brother
William G. Maddox during his natural life. At the death of his father, the third set apart for him to
be returned to his estate, and disposed of according to his will. At the death of his brother William,
the third “loaned” to him to be given to his daughter Ann Maria Maddox, “during her single life,
and forever, if her conduct should be orderly, and she remain a member of Friends Society.” The
codicil concluded with the following clause: “Furthermore, at the closing of all the above things, I
wish to give and bequeath all the remaining part of my estate to my nearest relations that may be
then living, and that shall be at that time members of the Society of Friends.”
After the death of the testator, and during the life time of her father, Ann Maria Maddox married
the appellee Thomas Tiller, who was not a member of the Society of Friends, and thereby, according
to the rules and discipline of the society, forfeited her right to membership. The appellee William
Garland Maddox also left the society, but the time at which he did so is nowhere disclosed by the
record.
As Mrs. Tiller is claiming the benefit of the bequest in remainder to her after the death of her father,
and as both she and Garland Maddox are claiming as two of the next of kin of the testator to
participate in the residuum, we are called upon in this state of the case, to pass on the validity and
effect of the two bequests in this codicil.
As by the rules of the Society of Friends, a member who married out of the society thereby forfeited
his membership, the effect of the bequest of the third in remainder to Ann Maria Maddox, was to
restrict her to marriage with a member of the society. Upon her marriage, the estate given to her
“during her single life,” would, according to the terms of the codicil, be determined; and if she
married a person who was not a member of the society, she herself ceased to be a member, and was
thus excluded from further enjoyment of the estate. The question then, as it respects the bequest of
the third in remainder to Ann Maria Maddox, is as to the validity of such a restraint upon marriage
under the circumstances disclosed in this case.
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It will not be questioned that marriages of a suitable and proper character, founded on the mutual
affection of the parties, and made upon free choice, are of the greatest importance to the best
interests of society, and should be by all proper means promoted and encouraged. The purity of the
marriage relation and the happiness of the parties will, to a great extent, depend upon their
suitableness the one for the other, and the entire freedom of choice which has led to their union;
and upon these, in their turn, in a great degree must depend the successful rearing of their children,
and the proper formation and development of their character and principles. Hence not only should
all positive prohibitions of marriage be rendered nugatory, but all unjust and improper restrictions
upon it should be removed, and all undue influences in determining the choice of the parties should
be carefully suppressed. Accordingly, in the civil law all conditions annexed to gifts and legacies
which went to restrain marriages generally, were deemed inconsistent with public policy, and held
void. Poth. Pand. lib. 35, title 1, n. 35; Dig. xxxv, tit. 1, l. 22, 64, 72.
This doctrine has been introduced into the English law with certain modifications, suggested by a
disposition to preserve to parents a just control and influence with their children, and the means of
protecting youthful persons against the sad consequences of hasty, unsuitable or ill-assorted
marriages. Conditions, therefore, in restraint of marriage, annexed to gifts and legacies, are allowed
when they are reasonable in themselves, and do not unduly restrict a just and proper freedom of
choice. But where a condition is in restraint of marriage generally, it is deemed to be contrary to
public policy, at war with sound morality, and directly violative of the true economy of social and
domestic life. Hence, such a condition will be held utterly void. (citations omitted).
In Elizabeth Castle's Case, Law Jurist, December 1846, the vice chancellor declared, in general terms,
that “limitations in restriction of marriage, were objectionable:” and in Long v. Dennis, 4 Burr. R.
2052, Lord Mansfield said, “Conditions in restraint of marriage are odious, and are therefore held to
the utmost rigor and strictness. They are contrary to sound policy. “And accordingly, even in those
cases in which restraints of a partial character may be imposed on marriage, as in respect of time,
place or person, they must be such only as are just, fair and reasonable. Where they are of so rigid a
character, or made so dependent on peculiar circumstances, as to operate a virtual though not a
positive restraint on marriage, or unreasonably restrict the party in the choice of marriage, they will
be ineffectual and utterly disregarded. Thus, a condition in restraint of marriage excluding men of a
particular profession, has been held void. 1 Equ. Ca. Ab. 100. So a contract not to marry within six
years is void because it tends to discourage marriage. Hartley v. Rice, 10 East's R. 22. So a covenant
with a woman not to marry any other person, has been held not to be binding. Lowe v. Peers, 4 Burr.
R. 2225. So a condition annexed to a legacy to a daughter, forbidding her to marry any man who had
not a clear unencumbered estate in fee or freehold perpetual, of the yearly value of five hundred
pounds, was declared by the lord chancellor to be worthy of condemnation in every court of justice:
and it was held void as leading to a probable prohibition of marriage. And Judge Story lays it down,
that restraints in respect of time, place or person, may be so framed as to operate a virtual
prohibition upon marriage, or at least upon its most important and valuable objects; and he
illustrates by a condition that a child should not marry till fifty years of age; or should not marry any
person inhabiting in the same town, county or state; or should not marry any person that was a
clergyman, a physician, or a lawyer, or any person except of a particular trade or employment; all of
which, he tells us, would be deemed mere evasions of the law. 1 Story's Eq. Jur. § 283. In these he
seems to be borne out by the opinion of Lord Chancellor Clare, in Keily v. Monck, ubi supra.
Following these principles and the cases I have cited for my guide, and looking to the facts in proof
in the cause, I cannot avoid coming to the conclusion, that the condition imposed by the bequest of
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the third in remainder to Ann Maria Maddox, which in effect forbade her to marry any other than a
member of the Society of Friends, was an undue and unreasonable restraint upon the choice of
marriage, and ought to be disregarded. It is in proof, that when she became marriageable, the
number of Quakers in the county of Hanover, in which she resided, and the vicinity, was small, and
that it had been since diminishing. There were not within the circle of her association, more than
five or six marriageable male members of the society, according to one of the witnesses, or three or
four, according to another; and the probability is, as stated by one of the witnesses, the restriction
imposed by the condition would have operated a virtual prohibition of her marrying. To say there
were members of the society residing in other counties, is no answer to the objection. She certainly
could not be expected, if she had the means, which it seems she had not, to go abroad in search of a
helpmate; and to subject her to the doubtful chance of being sought in marriage by a stranger, would
operate a restraint upon it far more stringent than those which are repudiated in the cases and
illustrations which I have already cited.
The case of Haughton v. Haughton, 1 Molloy 612, 12 Cond. Eng. Ch. R. 295, has been cited in support
of the restriction in this case. But that case and the case of Perrin v. Lyon, 9 East's R. 170, where the
condition was not to marry a Scotchman, which is relied on by the lord chancellor as decisive, were
cases of devises of realty; and there is a well settled distinction between them and bequests of
personalty, such as is the present case. The former are governed by the rules of the common law,
and the rules of the ecclesiastical courts which control bequests of personalty, are regarded as
inapplicable. 2 Pow. on Dev. 282; 1 Jarm. on Wills 836; Harvey v. Aston, 1 Atk. R. 361; Reynish v.
Martin, 3 Atk. R. 330; Stackpole v. Beaumont, 3 Ves. R. 89; 1 Fonbl. Eq. ch. iv, § 10, n. q, p. 258.
Moreover, it may well be questioned how far a decision upon such a question in a country already
overstocked with inhabitants, is applicable to a country like ours, with an unbounded extent of
territory, a large portion of which is yet unsettled, and in which increase of population is one of the
main elements of national prosperity. Nowhere can the policy of repudiating all unnecessary
restraints upon freedom of choice in marriage apply with more force than among a free people, with
institutions like ours, and in the circumstances by which we are surrounded. For this reason, and for
another that will be presently adverted to, I should not feel disposed to follow the decision referred
to, if it were even more strictly applicable to this case.
But treating the condition annexed to the bequest in remainder to Ann Maria Maddox, as a partial
restraint upon marriage, by requiring her to marry (if she married at all) a member of the society, on
pain of forfeiting her membership and the benefit of the bequest, if she married one who was not,
there is another and distinct ground upon which it will be disregarded. There is no bequest over of
the third thus given to her in case of her breach of the condition; and the condition therefore will be
treated as in terrorem merely, and the legacy becomes pure and absolute. 1 Roper Leg. ch. 13, § 1, p.
654; Garret v. Pritty, 2 Vern. R. 293; Wheeler v. Bingham, 3 Atk. R. 364; Lloyd v. Branton, 3 Meriv. R. 108,
117. Nor will the residuary clause be regarded as equivalent to a bequest over. To render the
condition effectual, there must be an express bequest over on breach of the condition, or a special
direction that the forfeited legacy shall fall into the residuum (citations omitted).
There is yet another view, which is also equally applicable to the bequest of the residuum, in which
the restriction imposed on the bequest of the third in remainder to Ann Maria Maddox, should be
held to be void and ineffectual. And the case must be considered in this aspect, because upon the
results to which we are brought upon such consideration, must depend the claim both of Mrs. Tiller
and Garland Maddox to participate in the residuum. It is insisted by the counsel, it is true, that there
is no proof of disorderly conduct on the part of Mrs. Tiller, nor that she has ever been actually
352

disowned as a member; or if she have been, that she might still be reinstated; and as she has applied
for and done all in her power to gain such readmission, but has been refused by the society whose
action she could not control, she should be regarded as having complied with the condition
prescribed, cy pres, and should now be exempt from the disability which it creates. And as to Garland
Maddox, it is urged that there is no proof he is not a member, and as he once was a member, it
should be presumed that he still remains such until proof be given to the contrary. But the
pretensions of these parties cannot be sustained on these grounds.
Mrs. Tiller's conduct was disorderly in the sense intended by the testator, in marrying one who was
not a member of the society, contrary to its rules and discipline. In their answer, she and her
husband say distinctly that she had left the society; and the fact of her applying for reinstatement
sufficiently implies that she had been disowned and excluded. Her application for readmission,
however, was not successful, but was rejected because the ““Monthly Meeting” distrusted the
motives by which it was prompted. She is not, therefore, and has not been a member of the society
since she was disowned upon her marriage, which took place some time, probably several years,
before the death of her father. And as to Garland Maddox, the bill charges that he was not a
member of the society, and on that account was not entitled to participate in the residuum under the
clause of the codicil by which it is disposed of. Garland Maddox in his answer does not pretend that
he is a member, nor does he make any claim to participate as such. He rests his claim upon the
ground that he is one of the next of kin, and that the restriction of the benefits of the bequest to
such of them only as should be members of the “Society of Friends,” a body unknown to the law, is
illegal and void. And he swears to his answer in the usual mode, instead of making a solemn
affirmation, which it is understood is the universal usage with the members of the Society of
Friends.
It will not be denied that one of the most marked and distinctive features of our civil institutions, is
the perfect, absolute and unqualified freedom of opinion in matters of religion which they secure to
all who dwell under them. Unjust encroachment upon the rights of conscience, in no inconsiderable
degree, gave impulse to the early immigration from the European continent to this, in the hope that
upon this new and virgin soil might be enjoyed that full and unquestioned freedom of opinion in
matters of religion which was deemed a part of the natural rights of man, but which was denied to
him in the old world. It was the spirit of resistance to such encroachment which filled the sails of the
May Flower, and wafted her, with the Pilgrim Fathers upon her decks, to their landing on Plymouth
rock. It was the same spirit which brought Huguenots to Virginia and to South Carolina, Catholics
to Maryland, Quakers to Pennsylvania, and Presbyterians to several of the colonies. Hence, nothing
was more natural or more certain than that when the separation took place from the British crown,
and the state of colonial dependence was replaced by a separate and independent government, the
rights of conscience and freedom of opinion in matters of religion, should have a prominent and
well assured place in the new institutions.
I take it, then, that upon no subject is the policy of our law more firmly settled, or more plain, clear
and unmistakable than upon this, and that all contracts and all conditions to the same or to gifts or
legacies the effect of which is to thwart and violate this policy, should be held to be utterly void and
ineffectual. And I regard a restriction imposed by the terms of a bequest, requiring as the condition
of its enjoyment, that the legatee should be a member of any religious sect or denomination, as
directly violative of this policy, and pregnant with evil consequences. It holds out a premium to
fraud, meanness and hypocrisy; it tends to corrupt the pure principles of religion, by holding out a
bribe for external profession and conformity to a particular sect; and however pure and honest the
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motives of the beneficiary may be, he is yet rendered an object of distrust and suspicion; and we see
in this case that although no other “disorderly” conduct than marrying out of the society was
imputed to Mrs. Tiller, yet her application to be reinstated was rejected, because, in consequence of
the condition annexed to the bequest in her favor, the meeting took up the impression that it was
prompted by unworthy and mercenary motives; it hampers the conscience, holds out inducements
to stifle its voice and to resist the force of reason and honest conviction; it tends to destroy true
religion, and to replace it with what is false and counterfeit; and, in short, it tends to promote all or
most of the evils so forcibly denounced in the preamble to the act already cited.
There are other difficulties attending the restriction annexed to this residuary clause, which render it
questionable, if it do not involve so much of ambiguity and uncertainty as to the subject and the
time of distribution, and the objects of the gift, as may render it void for that cause. If indeed we
may discard the idea of time in construing the expressions, “at the closing of all the above things,”
“that may be then living, and that shall be at that time members of the Society of Friends,” and
yielding to the disposition in favor of vesting estates, can refer the time at which the gift is to take
effect to the death of the testator, then no difficulty could occur: for at that time Mrs. Tiller was still
a member of the Friends Society; and in the absence of proof we might also infer, that Garland
Maddox was also still a member: and so no question could arise. But I think this cannot be done,
because the testator seems plainly to have contemplated some period after his death at which the
bequest was to take effect. What, then, was the period intended by him? The balance of the third not
needed to pay the debt to Thomas Maddox, might be ready for distribution many years before the
third given to the father for life would fall in upon his death. Would the former be distributed when
it was ready, or would it be held up till the death of the father, and one distribution be made of the
whole at that time? If the former, and the third given to the father for life, were to be the subject of
a separate division upon his death, then a different class might come in at the first division from
those who would be entitled at the second, because some of those embraced by the bounty, who
were members of the society when the first division should take place, might cease to be so before
the period arrived for the second. If one distribution of the whole is to be made, then the part
remaining of the third, after paying the debt to Thomas Maddox, must be held up till the death of
the father, that it may be ascertained which of the next of kin were members of the society at that
time.
And how is the court to determine the question of membership? Religious societies, we know, are
subject to schisms leading to a complete separation, and the formation of new and distinct societies.
They have occurred in the Society of Friends. A schism in the society in England in 1801, which led
to the formation of a new society called New Lights by the old society. In this country a separation
took place some years since, between those who were called Hicksites, after the mover of the
secession, Elias Hicks, and those who called themselves the Orthodox Quakers. Both societies
claimed to be the true orthodox sect, and each repudiated the claims of the other. If the court were
called on in case of such a division to say which was the true orthodox society, how would it
determine between the conflicting claimants?
I shall not enter upon these enquiries, because, for the reasons I have already given, I think the
Circuit court did right in treating the restrictions in the codicil as inoperative and void: and I am
therefore of opinion to affirm the decree.
Decree Affirmed.
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7.2.2

Some Restrictions are Reasonable

Shapira v. Union National Bank et. al., 315 N.E.2d 825 (Ohio 1974)
HENDERSON, Judge.
This is an action for a declaratory judgment and the construction of the will of David Shapira, M.D.,
who died April 13, 1973, a resident of this county. By agreement of the parties, the case has been
submitted upon the pleadings and the exhibit.
The portions of the will in controversy are as follows:
‘Item VIII. All the rest, residue and remainder of my estate, real and personal, of every kind
and description and wheresoever situated, which I may own or have the right to dispose of
at the time of my decease, I give, devise and bequeath to my three (3) beloved children, to
wit: Ruth Shapira Aharoni, of Tel Aviv, Israel, or wherever she may reside at the time of my
death; to my son Daniel Jacob Shapira, and to my son Mark Benjamin Simon Shapira in
equal shares, with the following qualifications:
‘(b) My son Daniel Jacob Shapira should receive his share of the bequest only, if he is
married at the time of my death to a Jewish girl whose both parents were Jewish. In
the event that at the time of my death he is not married to a Jewish girl whose both
parents were Jewish, then his share of this bequest should be kept by my executor
for a period of not longer than seven (7) years and if my said son Daniel Jacob gets
married within the seven year period to a Jewish girl whose both parents were
Jewish, my executor is hereby instructed to turn over his share of my bequest to him.
In the event, however, that my said son Daniel Jacob is unmarried within the seven
(7) years after my death to a Jewish girl whose both parents were Jewish, or if he is
married to a non Jewish girl, then his share of my estate, as provided in item 8 above
should go to The State of Israel, absolutely.’
The provision for the testator's other son Mark, is conditioned substantially similarly. Daniel Jacob
Shapira, the plaintiff, alleges that the condition upon his inheritance is unconstitutional, contrary to
public policy and unenforceable because of its unreasonableness, and that he should be given his
bequest free of the restriction. Daniel is 21 years of age, unmarried and a student at Youngstown
State University.
The provision in controversy is an executory devise or legacy, under which vesting of the estate of
Daniel Jacob Shapira or the State of Israel is not intended to take place necessarily at the death of
the testator, but rather conditionally, at a time not later than seven years after the testator's death.
The executory aspect of the provision, though rather unusual, does not render it invalid. Heath v. City
of Cleveland (1926), 114 Ohio St. 535, 151 N.E. 649.
Constitutionality
Plaintiff's argument that the condition in question violates constitutional safeguards is based upon
the premise that the right to marry is protected by the Fourteenth Amendment to the Constitution
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of the United States. Meyer v. Nebraska (1923), 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Skinner v.
Oklahoma (1942), 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655; Loving v. Virginia (1967), 388 U.S. 1, 87
S.Ct. 1817, 18 L.Ed.2d 1010. In Loving v. Virginia, the court held unconstitutional as violative of the
Equal Protection and Due Process Clauses of the Fourteenth Amendment an antimiscegenation
statute under which a black person and a white person were convicted for marrying. In its opinion
the United States Supreme Court made the following statements:
‘There can be no doubt that restricting the freedom to marry solely because of racial
classifications violates the central meaning of the Equal Protection Clause.
‘The freedom to marry has long been recognized as one of the vital personal rights essential
to the orderly pursuit of happiness by free men.
‘Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and
survival. The Fourteenth Amendment requires that the freedom of choice to marry not be
restricted by invidious racial discriminations. Under our Constitution, the freedom to marry,
or not marry, a person of another race resides with the individual and cannot be infringed by
the State.'
From the foregoing, it appears clear, as plaintiff contends, that the right to marry is constitutionally
protected from restrictive state legislative action. Plaintiff submits, then, that under the doctrine of
Shelley v. Kraemer (1948), 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, the constitutional protection of the
Fourteenth Amendment is extended from direct state legislative action to the enforcement by state
judicial proceedings of private provisions restricting the right to marry. Plaintiff contends that a
judgment of this court upholding the condition restricting marriage would, under Shelley v. Kraemer,
constitute state action prohibited by the Fourteenth Amendment as much as a state statute.
In the case at bar, this court is not being asked to enforce any restriction upon Daniel Jacob
Shapira's constitutional right to marry. Rather, this court is being asked to enforce the testator's
restriction upon his son's inheritance. If the facts and circumstances of this case were such that the
aid of this court were sought to enjoin Daniel's marrying a non-Jewish girl, then the doctrine of
Shelley v. Kraemer would be applicable, but not, it is believed, upon the facts as they are.
Basically, the right to receive property by will is a creature of the law, and is not a natural right or
one guaranteed or protected by either the Ohio or the United States constitution. (citations omitted).
It is a fundamental rule of law in Ohio that a testator may legally entirely disinherit his children.
(citations omitted). This would seem to demonstrate that, from a constitutional standpoint, a
testator may restrict a child's inheritance. The court concludes, therefore, that the upholding and
enforcement of the provisions of Dr. Shapira's will conditioning the bequests to his sons upon their
marrying Jewish girls does not offend the Constitution of Ohio or of the United States. (citations
omitted).
Public Policy
The condition that Daniel's share should be ‘turned over to him if he should marry a Jewish girl
whose both parents were Jewish’ constitutes a partial restraint upon marriage. If the condition were
that the beneficiary not marry anyone, the restraint would be general or total, and, at least in the case
of a first marriage, would be held to be contrary to public policy and void. A partial restraint of
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marriage which imposes only reasonable restrictions is valid, and not contrary to public policy.
(citations omitted). The great weight of authority in the United States is that gifts conditioned upon
the beneficiary's marrying within a particular religious class or faith are reasonable. (citations
omitted).
Plaintiff contends, however, that in Ohio a condition such as the one in this case is void as against
the public policy of this state. In Ohio, as elsewhere, a testator may not attach a condition to a gift
which is in violation of public policy. 56 Ohio Jurisprudence 2d 238, Wills, Section 722; Neidler v.
Donaldson (P.C. Seneca 1966), 9 Ohio Misc. 208, 224 N.E.2d 404, 38 O.O.2d 360. There can be no
question about the soundness of plaintiff's position that the public policy of Ohio favors freedom of
religion and that it is guaranteed by Section 7, Article I of the Ohio Constitution, providing that ‘all
men have a natural and indefeasible right to worship Almighty God according to the dictates of their
own conscience. Plaintiff's position that the free choice of religious practice cannot be circumscribed
or controlled by contract is substantiated by Hackett v. Hackett (C.A. Lucas 1958), 78 Ohio Law Abs.
485, 150 N.E.2d 431.This case held that a covenant in a separation agreement, incorporated in a
divorce decree, that the mother would rear a daughter in the Roman Catholic faith was
unenforceable. However, the controversial condition in the case at bar is a partial restraint upon
marriage and not a covenant to restrain the freedom of religious practice; and, of course, this court
is not being asked to hold the plaintiff in contempt for failing to marry a Jewish girl of Jewish
parentage.
Counsel contends that if ‘Dr. David Shapira, during his life, had tried to impose upon his son those
restrictions set out in his Will he would have violated the public policy of Ohio as shown in Hackett
v. Hackett. The public policy is equally violated by the restrictions Dr. Shapira has placed on his son
by his Will. ‘This would be true, by analogy, if Dr. Shapira, in his lifetime, had tried to force his son
to marry a Jewish girl as the condition of a completed gift. But it is not true that if Dr. Shapira had
agreed to make his son an inter-vivos gift if he married a Jewish girl within seven years, that his son
could have forced him to make the gift free of the condition.
It is noted, furthermore, in this connection, that the courts of Pennsylvania distinguish between
testamentary gifts conditioned upon the religious faith of the beneficiary and those conditioned
upon marriage to persons of a particular religious faith. In In re Clayton's Estate, supra (13 Pa.D. & C.
413), the court upheld a gift of a life estate conditioned upon the beneficiary's not marrying a
woman of the Catholic faith. In its opinion the court distinguishes the earlier case of Drace v.
Klinedinst (1922), 275 Pa. 266, 118 A. 907, in which a life estate willed to grandchildren, provided
they remained faithful to a particular religion, was held to violate the public policy of Pennsylvania.
In Clayton's Estate, the court said that the condition concerning marriage did not affect the faith of
the beneficiary, and that the condition, operating only on the choice of a wife, was too remote to be
regarded as coercive of religious faith.
But counsel relies upon an Ohio case much more nearly in point, that of Moses v. Zook (C.A. Wayne
1934), 18 Ohio Law Abs. 373. This case involves a will in which the testatrix gave the income of her
residual estate in trust to her niece and nephews for two years and then the remainder to them. Item
twelve provides as follows: ‘If any of my nieces or nephews should marry outside of the Protestant
Faith, then they shall not receive any part of my estate devised or bequeathed to them.’ The will
contained no gift over upon violation of the marriage condition. The holding of the trial court was
that item twelve was null and void as being against public policy and the seven other items of the
will should be administered as specified in detail by the court. There is nothing in the reported
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opinion to show to what extent, if at all, the question of public policy was in issue or contested in
the trial court; only one of the several other unrelated holdings of the trial court (not including the
public policy holding) was assigned as error; and although the Court of Appeals adopted the
unexcepted-to holdings of the trial court, there is no citation of authorities or discussion concerning
the public policy question itself. The case was apparently not appealed to the Supreme Court, and no
other cases in Ohio have been cited or found. Moses v. Zook differs in its facts in not containing a gift
over upon breach of the condition, and appears not to have been a sufficiently litigated or reasoned
establishment of the public policy of Ohio which this court should be obliged to follow.
The only cases cited by plaintiff's counsel in accord with the holding in Moses v. Zook are some
English cases and one American decision. In England the courts have held that partial restrictions
upon marriage to persons not of the Jewish faith, or of Jewish parentage, were not contrary to public
policy or invalid. Hodgson v. Halford (1879 Eng.) L.R. 11 Ch.Div. 959, 50 A.L.R.2d 742. Other cases
in England, however, have invalidated forfeitures of similarly conditioned provisions for children
upon the basis of uncertainty or indefiniteness. (citations omitted). Since the foregoing decisions, a
later English case has upheld a condition precedent that a granddaughter-beneficiary marry a person
of Jewish faith and the child of Jewish parents. The court distinguished the cases cited above as not
applicable to a condition precedent under which the legatee must qualify for the gift by marrying as
specified, and there was found to be no difficulty with indefiniteness where the legatee married
unquestionably outside the Jewish faith. (citations omitted).
The American case cited by plaintiff is that of Maddox v. Maddox (1854), 52 Va. (11 Grattain's) 804.
The testator in this case willed a remainder to his niece if she remained a member of the Society of
Friends. When the niece arrived at a marriageable age there were but five or six unmarried men of
the society in the neighborhood in which she lived. She married a non-member and thus lost her
own membership. The court held the condition to be an unreasonable restraint upon marriage and
void, and that there being no gift over upon breach of the condition, the condition was in terrorem,
and did not avoid the bequest. It can be seen that while the court considered the testamentary
condition to be a restraint upon marriage, it was primarily one in restraint of religious faith. The
court said that with the small number of eligible bachelors in the area the condition would have
operated as a virtual prohibition of the niece's marrying, and that she could not be expected to ‘go
abroad’ in search of a helpmate or to be subjected to the chance of being sought after by a stranger.
In arguing for the applicability of the Maddox v. Maddox test of reasonableness to the case at bar,
counsel for the plaintiff asserts that the number of eligible Jewish females in this county would be an
extremely small minority of the total population especially as compared with the comparatively
much greater number in New York, whence have come many of the cases comprising the weight of
authority upholding the validity of such clauses. There are no census figures in evidence. While this
court could probably take judicial notice of the fact that the Jewish community is a minor, though
important segment of our total local population, nevertheless the court is by no means justified in
judicial knowledge that there is an insufficient number of eligible young ladies of Jewish parentage in
this area from which Daniel would have a reasonable latitude of choice. And of course, Daniel is not
at all confined in his choice to residents of this county, which is a very different circumstance in this
day of travel by plane and freeway and communication by telephone, from the horse and buggy days
of the 1854 Maddox v. Maddox decision. Consequently, the decision does not appear to be an
appropriate yardstick of reasonableness under modern living conditions.
Plaintiff's counsel contends that the Shapira will falls within the principle of Fineman v. Central
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National Bank (1961), 87 Ohio Law Abs. 236, 175 N.E.2d 837, 18 O.O.2d 33, holding that the public
policy of Ohio does not countenance a bequest or device conditioned on the beneficiary's obtaining
a separation or divorce from his wife. Counsel argues that the Shapira condition would encourage
the beneficiary to marry a qualified girl just to receive the bequest, and then to divorce her afterward.
This possibility seems too remote to be a pertinent application of the policy against bequests
conditioned upon divorce. Most other authorities agree with Fineman v. Bank that as a general
proposition, a testamentary gift effective only on condition that the recipient divorce or separate
from his or her spouse is against public policy and invalid. 14 A.L.R.3d 1222. But no authorities
have been found extending the principle to support plaintiff's position. Indeed, in measuring the
reasonableness of the condition in question, both the father and the court should be able to assume
that the son's motive would be proper. And surely the son should not gain the advantage of the
avoidance of the condition by the possibility of his own impropriety.
Finally, counsel urges that the Shapira condition tends to pressure Daniel, by the reward of money,
to marry within seven years without opportunity for mature reflection, and jeopardizes his college
education. It seems to the court, on the contrary, that the seven year time limit would be a most
reasonable grace period, and one which would give the son ample opportunity for exhaustive
reflection and fulfillment of the condition without constraint or oppression. Daniel is no more being
‘blackmailed into a marriage by immediate financial gain,’ as suggested by counsel, than would be the
beneficiary of a living gift or conveyance upon consideration of a future marriage-an arrangement
which has long been sanctioned by the courts of this state. Thompson v. Thompson (1867), 17 Ohio St.
649.
In the opinion of this court, the provision made by the testator for the benefit of the State of Israel
upon breach or failure of the condition is most significant for two reasons. First, it distinguishes this
case from the bare forfeitures in Moses v. Zook, and in Maddox v. Maddox (including the technical in
terrorem objection), and, in a way, from the vagueness and indefiniteness doctrine of some of the
English cases. Second, and of greater importance, it demonstrates the depth of the testator's
conviction. His purpose was not merely a negative one designed to punish his son for not carrying
out his wishes. His unmistakable testamentary plan was that his possessions be used to encourage
the preservation of the Jewish faith and blood, hopefully through his sons, but, if not, then through
the State of Israel. Whether this judgment was wise is not for this court to determine. But it is the
duty of this court to honor the testator's intention within the limitations of law and of public policy.
The prerogative granted to a testator by the laws of this state to dispose of his estate according to his
conscience is entitled to as much judicial protection and enforcement as the prerogative of a
beneficiary to receive an inheritance.
It is the conclusion of this court that public policy should not, and does not preclude the fulfillment
of Dr. Shapira's purpose, and that in accordance with the weight of authority in this country, the
conditions contained in his will are reasonable restrictions upon marriage, and valid.

In re Estate of Feinberg, 919 N.E.2d 888 (Ill. 2009)
Justice GARMAN delivered the judgment of the court, with opinion.
This case involves a dispute among the surviving children and grandchildren of Max and Erla
Feinberg regarding the validity of a trust provision. The circuit court of Cook County found the
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trust provision unenforceable on the basis that it is contrary to the public policy of the state of
Illinois. The appellate court affirmed. 383 Ill.App.3d 992, 322 Ill. Dec. 534, 891 N.E.2d 549. Michael
Feinberg, the Feinbergs’ son and coexecutor of their estates, filed a petition for leave to appeal
pursuant to Supreme Court Rule 315 (210 Ill.2d R. 315), which we allowed. We also allowed
Agudath Israel of America, the National Council of Young Israel, and the Union of Orthodox
Jewish Congregations of America to file a brief amici curiae pursuant to Supreme Court Rule 345 (210
Ill.2d R. 345)
For the reasons that follow, we reverse.
BACKGROUND
Max Feinberg died in 1986. He was survived by his wife, Erla, their adult children, Michael and
Leila, and five grandchildren.
Prior to his death, Max executed a will and created a trust. Max’s will provided that upon his death,
all of his assets were to “pour over” into the trust, which was to be further divided for tax reasons
into two trusts, “Trust A” and “Trust B.” If she survived him, Erla was to be the lifetime beneficiary
of both trusts, first receiving income from Trust A, with a limited right to withdraw principal. If
Trust A were exhausted, Erla would then receive income from Trust B, again with a limited right to
withdraw principal.
Upon Erla’s death, any assets remaining in Trust A after the payment of estate taxes were to be
combined with the assets of Trust B. The assets of Trust B were then to be distributed to Max’s
descendants in accordance with a provision we shall call the “beneficiary restriction clause.” This
clause directed that 50% of the assets be held in trust for the benefit of the then-living descendants
of Michael and Leila during their lifetimes. The division was to be on a per stirpes basis, with
Michael’s two children as lifetime beneficiaries of one quarter of the trust and Leila’s three children
as lifetime beneficiaries of the other one quarter of the trust. However, any such descendant who
married outside the Jewish faith or whose non-Jewish spouse did not convert to Judaism within one
year of marriage would be “deemed deceased for all purposes of this instrument as of the date of
such marriage” and that descendant’s share of the trust would revert to Michael or Leila.
In addition, the trust instrument gave Erla a limited testamentary power of appointment over the
distribution of the assets of both trusts and a limited lifetime power of appointment over the assets
of Trust B. Under the limiting provision, Erla was allowed to exercise her power of appointment
only in favor of Max’s descendants. Thus, she could not name as remaindermen individuals who
were not Max’s descendants or appoint to a charity. The parties dispute whether Erla’s power of
appointment was limited to those descendants not deemed deceased under the beneficiary
restriction clause. The trial court did not make a finding on this question and the appellate court did
not discuss it.
Erla exercised her lifetime power of appointment over Trust B in 1997, directing that, upon her
death, each of her two children and any of her grandchildren who were not deemed deceased under
Max’s beneficiary restriction clause receive $250,000. In keeping with Max’s original plan, if any
grandchild was deemed deceased under the beneficiary restriction clause, Erla directed that his or
her share be paid to Michael or Leila.
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By exercising her power of appointment in this manner, Erla revoked the original distribution
provision and replaced it with a plan that differs from Max’s plan in two significant respects. First,
Erla altered the distribution scheme from per stirpes to per capita, permitting each of the grandchildren
to take an equal share, rather than favoring Michael’s two children over Leila’s three children.
Second, Erla designated a fixed sum to be distributed to each eligible descendant at the time of her
death, replacing Max’s plan for a lifetime trust for such descendants. The record suggests that Erla’s
gifts will deplete the corpus of the trust, leaving no trust assets subject to distribution under Max’s
original plan. Thus, while Erla retained Max’s beneficiary restriction clause, his distribution provision
never became operative.
All five grandchildren married between 1990 and 2001. By the time of Erla’s death in 2003, all five
grandchildren had been married for more than one year. Only Leila’s son, Jon, met the conditions of
the beneficiary restriction clause and was entitled to receive $250,000 of the trust assets as directed
by Erla.
This litigation followed, pitting Michael’s daughter, Michele, against Michael, coexecutor of the
estates of both Max and Erla.
The trial court invalidated the beneficiary restriction clause on public policy grounds. A divided
appellate court affirmed, holding that “under Illinois law and under the Restatement (Third) of
Trusts, the provision in the case before us is invalid because it seriously interferes with and limits the
right of individuals to marry a person of their own choosing.” 383 Ill.App.3d at 997, 322 Ill. Dec.
534, 891 N.E.2d 549. In reaching this conclusion, the appellate court relied on decisions of this
court dating back as far as 1898 and, as noted, on the Restatement (Third) of Trusts.
ISSUE PRESENTED
As a threshold matter, we must clarify the issue presented. We need not consider whether Max’s
original testamentary scheme is void as a matter of public policy because Erla altered his scheme in
1997. Indeed, she could have done so again at any time before her death in 2003, exercising her
lifetime or testamentary powers of appointment in any number of ways. For example, she could
have named her grandson, Jon, as the sole beneficiary of the entire trust, or excluded the
grandchildren entirely, appointing the entire corpus of the trust to Michael and Leila.
Indeed, counsel for Michele acknowledged at oral argument that Max and Erla could have
accomplished the goal of benefitting only those grandchildren who married within their religious
tradition by individually naming those grandchildren as beneficiaries of the will or the trust, without
implicating public policy. Counsel argued that the violation of public policy occurred when Max
used a religious description to define a class or category of descendants he wished to benefit, rather
than mention them by name.
Of course, at the time Max prepared his estate plan, his grandchildren were too young to marry and
it was possible that more grandchildren might have been born before the trust provisions took
effect. As a result, Max could not have accomplished his purpose in the manner suggested by
Michele. Even by the time Erla exercised her power of appointment, not all of the grandchildren
had married.
Thus, the question we must answer is whether the holder of a power of appointment over the assets
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of a trust may, without violating the public policy of the state of Illinois, direct that the assets be
distributed at the time of her death to then-living descendants of the settlor, deeming deceased any
descendant who has married outside the settlor’s religious tradition. In effect, we are not called upon
to consider the validity of Max’s estate plan as a whole, which would have continued to hold the
assets in trust for the benefit of the grandchildren only so long as they complied with the restriction.
Rather, we must assess Max’s beneficiary restriction clause in conjunction with Erla’s directions for
distribution.
When the issue is clarified in this way, it becomes apparent that many of the arguments raised by
Michele are not relevant. For example, under Max’s plan, an unmarried grandson would have begun
to receive distributions from Trust B upon Erla’s death, only to forfeit further such payments if he
were to marry a non-Jewish woman who did not convert to Judaism within one year. We need not
decide if such a provision would violate public policy because no such provision is implicated in the
present case.
Michele also suggests that a granddaughter who was married to a non-Jewish man at the time of
Erla’s death might subsequently divorce and remarry, this time to a Jewish spouse, and make a claim
upon the trust. This circumstance would raise the issue of whether such a descendant, previously
deemed deceased, would be “resurrected.” Such an occurrence would require construction of the
language of the trust document. Under Erla’s plan, however, this circumstance cannot arise because
a fixed amount became distributable upon her death only to those grandchildren who then met the
requirements previously set by Max.
Similarly, Michele’s argument that the beneficiary restriction clause is invalid because a court might
be called upon to determine whether the spouse of a particular descendant is or is not Jewish is not
well taken. It is undisputed in the present case that only one of the five grandchildren meets the
requirements established by Max.
STANDARD OF REVIEW
This court has not had occasion to identify the applicable standard of review on the question of
whether a provision in a trust document or will is void as a matter of public policy. It is clear,
however, that such findings are subject to de novo review, because public policy is necessarily a
question of law. Holstein v. Grossman, 246 Ill.App.3d 719, 726, 186 Ill. Dec. 592, 616 N.E.2d 1224
(1993), citing Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180, 91 N.E. 1041 (1910). This conclusion
is consistent with the well-established principle that whether a provision in a contract, insurance
policy, or other agreement is invalid because it violates public policy is a question of law, which we
review de novo. O’Hara v. Ahlgren, Blumenfeld & Kempster, 127 Ill.2d 333, 130 Ill. Dec. 401, 537 N.E.2d
720 (1989)(affirming grant of summary judgment on basis that fee-sharing agreement offended
public policy).
ANALYSIS
Michael argues before this court that the beneficiary restriction clause in his father’s trust was
intended “to encourage and support Judaism and preservation of Jewish culture in his own family,”
and that it was not binding upon Erla, who exercised her power of appointment consistently with
the provision because it expressed her intent as well as Max’s. Michael argues, further, that even if
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Max’s beneficiary restriction was not revocable by Erla, the provision does not violate the public
policy of this state when it is given effect via his mother’s distribution scheme. He asserts that the
distribution scheme is a valid partial restraint on marriage of a type that has long been enforced in
Illinois and elsewhere. According to Michael, the beneficiary restriction clause has no prospective
effect that might subsequently influence a descendant’s decisions regarding marriage or divorce
because, upon Erla’s death, no contingencies remained. He distinguishes the cases relied upon by
the appellate court and urges this court to reject the cited Restatement provision as not accurately
stating Illinois law.
Michele defends the Restatement provision and argues that this case comes within a line of cases
dating back to 1898 in which this court invalidated testamentary provisions that operated to
discourage the subsequent lawful marriage by a legatee or to encourage a legatee to obtain a divorce.
Specifically, she argues that under Ransdell v. Boston, 172 Ill. 439, 50 N.E. 111 (1898), testamentary
restrictions on marriage are valid only if they operate to benefit the intended beneficiary. Further,
she argues that enforcement of the clause would violate both state and federal constitutions and that
it violates public policy by offering a financial inducement to embrace a particular religion.
We note that this case involves more than a grandfather’s desire that his descendants continue to
follow his religious tradition after he is gone. This case reveals a broader tension between the
competing values of freedom of testation on one hand and resistance to “dead hand” control on the
other. This tension is clearly demonstrated by the three opinions of the appellate court. The
authoring justice rejected the argument that the distribution scheme is enforceable because it
operated at the time of Erla’s death and could not affect future behavior, stating that its “clear intent
was to influence the marriage decisions of Max’s grandchildren based on a religions criterion.” 383
Ill.App.3d at 997, 322 Ill. Dec. 534, 891 N.E.2d 549. The concurring justice opined that while such
restrictions might once have been considered reasonable, they are no longer reasonable. 383
Ill.App.3d at 1000, 322 Ill. Dec. 534, 891 N.E.2d 549 (Quinn, P.J., specially concurring). The
dissenting justice noted that under the facts of this case, grandchildren who had complied with the
restrictions would “immediately receive their legacy” upon Erla’s death (383 Ill.App.3d at 1000, 322
Ill. Dec. 534, 891 N.E.2d 549) (Greiman, J., dissenting)), and that the weight of authority is that a
testator has a right to make the distribution of his bounty conditional on the beneficiary’s adherence
to a particular religious faith (383 Ill.App.3d at 1002, 322 Ill. Dec. 534, 891 N.E.2d 549).
We, therefore, begin our analysis with the public policy surrounding testamentary freedom and then
consider public policy pertaining to testamentary or trust provisions concerning marriage.
When we determine that our answer to a question of law must be based on public policy, it is not
our role to make such policy. Rather, we must discern the public policy of the state of Illinois as
expressed in the constitution, statutes, and long-standing case law. O’Hara, 127 Ill.2d at 341, 130 Ill.
Dec. 401, 537 N.E.2d 730.We will find a contract provision against public policy only “ ‘ “if it is
injurious to the interests of the public, contravenes some established interest of society, violates
some public statute, is against good morals, tends to interfere with the public welfare or safety, or is
at war with the interests of society or is in conflict with the morals of the time.” ’ ” Vine Street Clinic
v. Health Link, Inc., 222 Ill.2d 276, 296, 305 Ill. Dec. 617, 856 N.E.2d 422 (2006), quoting E & B
Marketing Enterprises, Inc. v. Ryan, 209 Ill. App.3d 626, 630, 154 Ill. Sec. 339, 568 N.E.2d 339 (1991),
quoting Marvin N. Benn & Associates, Ltd. V. Nelsen Steel & Wire, Inc., 107 Ill.App.3d 442, 446, 63 Ill.
Dec. 251, 437 N.E.2d 900 (1982). Thus,
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“In deciding whether an agreement violates public policy, courts determine whether the agreement
is so capable of producing harm that its enforcement would be contrary to the public interest.
[Citation.] The courts apply a strict test in determining when an agreement violates public policy.
[Citation.] The power to invalidate part or all of an agreement on the basis of public policy is used
sparingly because private parties should not be needlessly hampered in their freedom to contract
between themselves. [Citation.] Whether an agreement is contrary to public policy depends on the
particular facts and circumstances of the case.” Kleinwort Benson North America, Inc. v. Quantum
Financial Services, Inv., 181 Ill.2d 214, 226, 229 Ill. Dec. 496, 692 N.E.2d 269 (1998).
Because, as will be discussed below, the public policy of this state values freedom of testation as well
as freedom of contract, these same principles guide our analysis in the present case.
Public Policy Regarding Freedom of Testation
Neither the Constitution of the United States nor the Constitution of the State of Illinois speaks to
the question of testamentary freedom. However, our statutes clearly reveal a public policy in support
of testamentary freedom.
The Probate Act places only two limits on the ability of a testator to choose the objects of his
bounty. First, the Act permits a spouse to renounce a testator’s will, “whether or not the will
contains any provision for the benefit of the surviving spouse.” 755 ILCS 5/2-8 (West 2008). Thus,
absent a valid prenuptial or postnuptial agreement (see, e.g., Golden v. Golden, 393 Ill. 536, 66 N.E.2d
662 (1946)(wife can effectively bind herself to accept provisions of husband’s will, thereby estopping
her from renouncing the will after his death)), the wishes of a surviving spouse can trump a
testator’s intentions. Second, a child born to a testator after the making of a will is “entitled to
receive the portion of the estate to which he would be entitled if the testator died intestate,” unless
provision is made in the will for the child or the will reveals the testator’s intent to disinherit the
child. 755 ILCS 5/4-10 (West 2008).
The public policy of the state of Illinois as expressed in the Probate Act is, thus, one of broad
testamentary freedom, constrained only by the rights granted to a surviving spouse and the need to
expressly disinherit a child born after execution of the will if that is the testator’s desire.
Under the Probate Act, Max and Erla had no obligation to make any provision at all for their
grandchildren. Indeed, if Max had died intestate, Erla, Michael, and Leila would have shared his
estate (755 ILCS 5/2-1 (a) (West 2008)), and if Erla had died intestate, only Michael and Leila would
have taken (755 ILCS 5/2-1 (b) (West 2008)). Surely, the grandchildren have no greater claim on
their grandparents’ testate estates than they would have had on intestate estates.
Similarly, under the Trusts and Trustees Act, “[a] person establishing a trust may specify in the
instrument the rights, powers, duties, limitations and immunities applicable to the trustee,
beneficiary and others and those provisions where not otherwise contrary to law shall control,
notwithstanding this Act.” 760 ILCS 5/3 (West 2008). Thus, the legislature intended that the settlor
of a trust have the freedom to direct his bounty as he sees fit, even to the point of giving effect to a
provision regarding the rights of beneficiaries that might depart from the standard provisions of the
Act, unless “otherwise contrary to law.”
Another legislative enactment that reveals a strong public policy of freedom of testation was the
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adoption, in 1969, of the Statute Concerning Perpetuities (765 ILCS 305/1 et. seq. (West 2008)), for
the purpose of modifying the common law rule that a will or trust provision that violated the rule
against perpetuities was void ab initio. 765 ILCS 305/2 (West 2008). The statute permits the settlor
of a trust to create a “qualified perpetual trust” by including in the instrument a provision that the
rule against perpetuities does not apply and by granting certain specified powers to the trustee. 765
ILCS 305/3 (a–5), 4(a)(8) (West 2008). The statute also specifies other circumstances under which
the rule shall not apply. 765 ILCS 305/4 (a)(1) through (a)(7) (West 2008). In addition, the statute
adopts a set of rules to be applied when determining whether an interest violates the rule against
perpetuities. 765 ILCS 305/4 (c)(1) through (c)(3) (West 2008). With regard to trusts, the statute
provides that a trust containing a provision that would violate the rule against perpetuities, as
modified by the statute, shall terminate 21 years after the death of the last surviving beneficiary who
was living at the beginning of the perpetuities period (765 ILCS 305/5 (a)(A) (West 2008)) or else at
the end of the 21–year perpetuities period if no beneficiary was living when the period began to run
(765 ILCS 305/5 (a)(B) (West 2008)). Thus, the trust is not rendered void ab initio, but is merely
terminated by operation of law at the conclusion of the perpetuities period.
Also, in 1953, the legislature adopted the Rule in Shelley’s Case Abolishment Act (765 ILCS 345/1
et. seq. (West 2008)), to abolish the common law rule that a life estate to A, with a remainder to A’s
heirs, shall pass to A in fee simple.
As demonstrated by the Probate Act, the Trusts Act, the Statute Concerning Perpetuities, and the
Rule in Shelley’s Case Abolishment Act, the public policy of the state of Illinois protects the ability
of an individual to distribute his property, even after his death, as he chooses, with minimal
restrictions under state law.
Our case law also demonstrates the existence of a public policy favoring testamentary freedom,
reflected in the many cases in which a court strives to discover and to give effect to the intent of a
deceased testator or settlor of a trust. See, e.g., Harris Trust & Savings Bank v. Donovan, 145 Ill.2d 166,
172, 163 Ill. Dec. 854, 582 N.E.2d 120 (1991)(“The first purpose in construing a trust is to discover
the settlor’s intent from the trust as a whole, which the court will effectuate if it is not contrary to
public policy”); Harris Trust & Savings Bank v. Beach, 118 Ill.2d 1, 3, 112 Ill. Dec. 224, 513 N.E.2d 833
(1987) (“In construing either a trust or a will the challenge is to find the settlor’s or testator’s intent
and, provided that the intention is not against public policy, to give it effect”).
The record, via the testimony of Michael and Leila, reveals that Max’s intent in restricting the
distribution of his estate was to benefit those descendants who opted to honor and further his
commitment to Judaism by marrying within the faith. Max had expressed his concern about the
potential extinction of the Jewish people, not only by holocaust, but by gradual dilution as a result of
intermarriage with non-Jews. While he was willing to share his bounty with a grandchild whose
spouse converted to Judaism, this was apparently as far as he was willing to go.
There is no question that a grandparent in Max’s situation is entirely free during his lifetime to
attempt to influence his grandchildren to marry within his family’s religious tradition, even by
offering financial incentives to do so. The question is, given our public policy of testamentary
freedom, did Max’s beneficiary restriction clause as given effect by Erla’s appointment violate any
other public policy of the state of Illinois, thus rendering it void?

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Public Policy Regarding Terms Affecting Marriage or Divorce
The contrary law relied upon by the appellate court to invalidate Max’s beneficiary restriction clause
is found in three decisions of this court: Ransdell, 172 Ill. 439, 50 N.E. 111, Winterland v. Winterland,
389 Ill. 384, 59 N.E.2d 661 (1945), and Estate of Gerbing, 61 Ill.2d 503, 337 N.E.2d 29 (1975) (which
overruled Winterland in part). The appellate court concluded that the “language and circumstances”
of the testamentary provisions in these cases, “which Illinois courts have found to be against public
policy, are strikingly similar to the instant case.” 383 Ill.App.3d at 996, 322 Ill. Dec. 534, 891 N.E.2d
549. Specifically, the appellate court invoked the “principle that testamentary provisions are invalid if
they discourage marriage or encourage divorce.” 383 Ill.App.3d at 996, 322 Ill. Dec. 534, 891 N.E.2d
549.
In Ransdell, the testator’s will included provisions for his wife, his son, and his daughter. At the time
the will was executed, the son and his wife were separated and cross-suits for divorce were pending.
The father’s bequest to the son provided that the property be held in trust, giving him use and
income of the land for life, or “until such time as he * * * shall become sole and unmarried,” at
which time the trustee was to convey title to the land to him in fee simple. Ransdell, 172 Ill. at 440, 50
N.E. 111. If the son died childless while still married to the wife, the land was to go to other
devisees. Several years after the father’s death, the son, who was still married but living apart from
his wife, challenged the provision on public policy grounds. The circuit court granted judgment for
the defendants and this court affirmed.
This court acknowledged the long-standing rule that conditions annexed to a gift that have the
tendency to induce spouses to divorce or to live separately are void on grounds of public policy.
Ransdell, 172 Ill. at 440, 50 N.E. 111. However, the testator’s purpose in this case “was simply to
secure the gift to his son in the manner which, in his judgment, would render it of the greatest
benefit to him in view of the relations then existing between him and his wife” (Ransdell, 172 Ill. at
440, 50 N.E. 111), which were strained, to say the least. “Certainly,” this court noted, “it cannot be
said that the condition tended to encourage either the separation or the bringing of a divorce suit,
both having taken place long prior to the execution of the will.” Ransdell, 172 Ill. at 440, 50 N.E.
111.
This court weighed two potentially competing public policies, stating that it was “of the first
importance to society that contract and testamentary gifts which are calculated to prevent lawful
marriages or to bring about the separation or divorcement of husbands and wives should not be
upheld.” Ransdell, 172 Ill. at 446, 50 N.E. 111. On the other hand, “it is no less important that
persons of sound mind and memory, free from restraint and undue influence, should be allowed to
dispose of their property by will, with such limitations and conditions as they believe for the best
interest of their donees.” Ransdell, 172 Ill. at 446, 50 N.E. 111. Because the testator had not
disinherited his son if he remained married, but made one provision for him in case he remained
married (a life estate) and a different provision if he divorced (taking title in fee simple), the
condition was not contrary to public policy.
Finally, this court distinguished between a condition subsequent (for example, if the will devised
property to the beneficiary in trust for life, subject to divestment if he married), and a condition
precedent, which directs that upon the fulfillment of the condition, ownership of the property is to
vest in the beneficiary. Ransdell, 172 Ill. at 447, 50 N.E. 111. The condition subsequent, such as one
that would prohibit marriage generally, would be void and the donee would retain the property,
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unaffected by the violation of the condition. A condition precedent would be given effect, because
until the condition was met, the beneficiary’s interest was a mere expectancy. Ransdell, 172 Ill. at 44748, 50 N.E. 111.
The appellate court cited Ransdell for the “ general rule that testamentary provisions which act as a
restraint upon marriage or which encourage divorce are void as against public policy” and
distinguished Ransdell from the present case on the basis that the Ransdells’ marriage was “already in
disrepair” at the time the will was executed. 383 Ill.App.3d at 994, 322 Ill. Dec. 534, 891 N.E.2d 549.
The appellate court noted that subsequent Illinois cases, however, have “reaffirmed the underlying
principle.” 383 Ill.App.3d at 995, 322 Ill. Dec. 534, 891 N.E.2d 549.
One such case was Winterland, in which the testator created a trust for his wife that, upon her death,
was to be distributed equally to their 11 children. However, in a later codicil, the testator directed
that the share intended for their son, George, was to be held in trust for him “‘so long as he may live
or until his present wife shall have died or been separated from him by absolute divorce.’ ”
Winterland, 389 Ill. at 385, 59 N.E.2d 661. George predeceased his wife and she and their son
challenged the codicil as promoting divorce, contrary to good morals, and against public policy.
Winterland, 389 Ill. at 386, 59 N.E.2d 661. This court distinguished Ransdell on the basis that the
couple’s separation was “already an accomplished fact and a divorce suit was then pending” at the
time the testator made his will. Winterland, 389 Ill. at 387, 59 N.E.2d 661. But where no separation
was contemplated, the “natural tendency of the provision” was “to encourage divorce.” For that
reason, the provision was void. Winterland, 389 Ill. at 387-88, 59 N.E.2d 661. This court announced
that it is “the public policy of this state to safeguard and protect the marriage relation, and this court
will hold as contrary to that policy and void any testamentary provision tending to disturb or destroy
an existing marriage.” Winterland, 389 Ill. at 387, 59 N.E.2d 661.
This court further found that the codicil established two separate and divisible conditions upon
which the trust would be distributed to George. First, George’s life estate was to continue until the
death of his wife; second, his life estate would terminate upon their absolute divorce. This court
rejected the argument that the life estate itself failed and that title to the property vested in George
upon his father’s death. Rather, while the second condition was void, the first condition was not
and, thus, could be given effect. Winterland, 389 Ill. at 388, 59 N.E.2d 661.
In Gerbing, this court considered the validity of a provision in a testamentary trust that would have
terminated the trust and distributed the corpus to the testator’s son in the event that his wife
predeceased him or the couple divorced and remained divorced for two years. Gerbing, 61 Ill.2d at
505, 337 N.E.2d 29. This court restated the general principle that “a devise or bequest, the tendency
of which is to encourage divorce or bring about a separation of husband and wife is against public
policy.” Gerbing, 61 Ill.2d at 507, 337 N.E.2d 29. However, if the “dominant motive of the testator is
to provide support in the event of such separation or divorce the condition is valid.” Gerbing, 61
Ill.2d at 507, 337 N.E.2d 29. Further, unless the couple was separated or a divorce was pending at
the time the will was executed, the “exception to the general rule announced in Ransdell” was not
applicable. Gerbing, 61 Ill.2d at 508, 337 N.E.2d 29. This court found the provision void, but
declined to sever the two conditions, as it had done in Winterland. Finding that it was the testator’s
general intent to benefit her son and that she would have preferred that he take the corpus of the
trust, even if he remained married, rather than have him take nothing, this court found the entire
provision void, overruling Winterland to the extent it held otherwise. Gerbing, 61 Ill.2d at 512, 337
N.E.2d 29.
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In the present case, the appellate court found the “language and circumstances” of these three cases
“strikingly similar” to the present case and saw “no reason to depart from this well-established
principle” of these cases. 383 Ill.App.3d at 996, 322 Ill. Dec. 534, 891 N.E.2d 549. We disagree with
the appellate court’s conclusion regarding the similarity of the present case to the cited cases. The
beneficiary restriction clause as given effect by Erla’s distribution scheme does not implicate the
principle that trust provisions that encourage divorce violate public policy. That is, the present case
does not involve a testamentary or trust provision that is “capable of exerting * * * a disruptive
influence upon an otherwise normally harmonious marriage” by causing the beneficiary to choose
between his or her spouse and the distribution. Gerbing, 61 Ill.2d at 508, 337 N.E.2d 29. The
challenged provision in the present case involves the decision to marry, not an incentive to divorce.
This court has considered the validity of restrictions affecting marriage in cases going back as far as
1857.
In Shackelford v. Hall, 19 Ill. 212 (1857), the testator, Hall, left his estate to his wife for life or until she
remarried, with the remainder to his four children, subject to the condition that they not marry
before the age of 21. Any child who married before his or her twenty-first birthday was to receive
one dollar only. The only daughter, Eliza, married four months before her twenty-first birthday, with
the approval of her eldest brother, the executor of their father’s estate. This court described the
provision as a “devise with a condition subsequent,” because the remainder interest vested in the
four children immediately upon the death of the testator, “subject to be defeated by their marriage
before they should attain that age.” Shackelford v. Hall, 19 Ill. at 213. This court noted that:
“whoever will take the trouble to examine this branch of the law attentively, will find that the
testator may impose reasonable and prudent restraints upon the marriage of the objects of his
bounty, by means of conditions precedent, or subsequent, or by limitations, while he may not,
with one single exception, impose perpetual celibacy upon the objects of his bounty, by means of
conditions subsequent or limitations. That exception is in the case of a husband in making
bequests or legacies to his own wife. He may rightfully impose the condition of forfeiture upon
her subsequent marriage.” Shackelford v. Hall, 19 Ill. at 214-15.
As for other conditions affecting marriage that might be imposed by a testator, this court said that:
“[a]n examination of the subject, will show that the courts have very rarely held such condition
void, although it might appear harsh, arbitrary and unreasonable, so as it did not absolutely
prohibit the marriage of the party, within the period wherein issue of the marriage might be
expected. It is enough for our present purpose, and we will go no further now, for it is not
necessary, that it has been nowhere held, or pretended, that an absolute prohibition of marriage till
twenty-one years of age is not reasonable and lawful, and must not be upheld, as a good condition,
the violation of which may defeat a vested estate. The condition, then, annexed to this devise, was
proper, reasonable and lawful, and its violation must be held to have forfeited the estate devised,
unless it can be saved by some other equally well settled principle of law.” Shackelford v. Hall, 19 Ill.
215.
Further:
“The facts of the case show, that all of the devisees of the estate in remainder, now in
controversy, were the children and heirs at law of the testator, and as such heirs at law, had expectations
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of this estate. In the absence of the will, each would have been entitled to his or her respective
proportions of it, according to our statute of descent. when such is the case, the condition subsequent,
the breach of which shall divest the estate which has become vested in the devisee by the will, must be
shown to have been brought home to the knowledge of the devisee, before the breach, in order to
mark the forfeiture.” (Emphases added.) Shackelford v. Hall, 19 Ill. at 215-16.
In the end, this court found that the marriage of Hall’s daughter prior to her twenty-first birthday
did not divest her of the remainder interest conveyed to her upon her father’s death. The basis for
this decision was not that her father’s partial restraint upon marriage was invalid, but that her
remainder interest vested upon his death and could not be divested by a subsequent act on her part,
absent a showing that she had notice of the condition subsequent. Other factors supporting this
result were that she would have been one of her father’s heirs at law should he have died intestate
and that her brother, the executor, had unclean hands:
“And this rule is in harmony with the general principles of law, which always lean hard against a
forfeiture of estates once vested, and that it will not allow such forfeiture, where there has been no
laches or misconduct. In the case before us, we must assume that the defendant did not know of the
existence 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’s estate. In ignorance of the will, she
supposed she was entitled to take as heir without any condition. When we look at this case as it is
presented by the record, we see it would be a monstrous piece of injustice to enforce this
forfeiture against her. Here was her elder brother, who was an executor named in the will,
knowing of the condition of forfeiture, had an interest in keeping it from her, that she might, by
doing the prohibited act, incur the forfeiture, that her portion might go to himself and the other
heirs of the testator. Under the influence of this direct interest, he suffers her to go on in
ignorance of the will, and marry only four months before she attained the age of twenty-one years,
and now he comes forward and claims the benefit of the forfeiture, and insists upon depriving her
of the portion devised to her by the will. To sustain this claim, would be to offer a premium for
the commission of the most heartless frauds. * * * We have not the least doubt that, upon the
soundest principles of law and morality, she must take the estate devised, discharged of the
condition.” (Emphasis added.) Shackelford v. Hall, 19 Ill. 217-18.
In the present case, Michael argues that the beneficiary restriction clause is a similar “reasonable and
prudent restraint” that does not operate as a complete restraint upon marriage. Rather, the clause
disqualifies from receipt of a share of the trust assets any grandchild who has chosen to marry
outside the religious tradition their grandparents valued so highly.
More importantly, we note that, unlike Eliza Hall, the grandchildren did not receive a vested interest
in the trust upon Max’s death. By creating a power of appointment in Erla, Max created a situation
in which the interests of the grandchildren were contingent on whether and in what manner she
would exercise her lifetime and testamentary powers of appointment. Thus, the grandchildren had a
mere expectancy that they might receive some portion of the remainder at the conclusion of Erla’s
life estate. No one had a vested interest in the remainder of the trust assets until Erla’s death
resolved all contingencies. Further, unlike Hall’s daughter, the grandchildren in the present case were
not Max’s or Erla’s heirs at law. Finally, while the record is unclear whether any or all of the
grandchildren were aware of the existence of the beneficiary restriction clause, because they had no
vested interest to protect, they were not entitled to notice of the condition.
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More recently, the appellate court upheld the validity of a testamentary provision regarding the
marriage of the intended legatee. In In re Estate of Gehrt, 134 Ill.App.3d 308, 89 Ill. Dec. 265, 480
N.E.2d 151 (1985), the testator, Forrest Gehrt, originally left a portion of his estate to six named
individuals who were the children of Edna Bocock, apparently his deceased sister. Upon the death
of one of these individuals, Harold Bocock, he executed a codicil leaving the portion originally
intended for Harold to his widow, Betty, provided that at the time of Forrest’s death, she remained
unmarried. If, at the time of Forrest’s death, it was determined that Betty had remarried, the share
was to go to Harold’s five siblings. Estate of Gehrt, 134 Ill.App.3d at 309, 89 Ill. Dec. 265, 480 N.E.2d
151.
Betty remarried and, upon Forrest’s death, sought Harold’s share of the estate. The parties agreed
that the condition operated as a condition precedent. Betty argued that it constituted an invalid
restraint on marriage and asked that it be declared void as against public policy. The executor argued
that the condition did not operate as a restraint because the interest “either vests or not at the date
of the death of the testator depending on [Betty’s] marital status at the time, not at some later time.”
Estate of Gehrt, 134 Ill.App.3d at 310, 89 Ill. Dec. 265, 480 N.E.2d 151.
The appellate court invoked a rule of reasonableness, quoting a case from the state of Louisiana in
support of such a rule:
“ ‘[C]onceding, without deciding, that a legacy conditioned upon the legatee remaining unmarried
is against the public policy of this State, it is apt to observe here that the provision under
consideration is not one forbidding the donee to marry during her lifetime or even for a fixed
period of time, nor one that directs the legacy shall lapse in case the legatee should marry in the
future, but rather one that is conditioned upon her status at the time of the testator’s death.
Certainly, such a provision is not against good morals, and we know of no law prohibiting the
same.’ ” Estate of Gehrt, 134 Ill.App.3d at 311, 89 Ill. Dec. 265, 480 N.E.2d 151, quoting Succession of
Ruxton, 226 La. 1088, 1091, 78 So.2d 183, 184 (1955).
Applying this principle to the Gehrt estate, the appellate court noted the well-established principle
that a will speaks as of the date of death of the testator. Estate of Gehrt, 134 Ill.App.3d at 311, 89 Ill.
Dec. 265, 480 N.E.2d 151. Thus, the court observed:
“[T]he testator, Forrest L. Gehrt, could have, for any reason, changed his codicil at any time prior
to his death. He could have, at the time of plaintiff’s remarriage, immediately executed another
codicil cancelling the gift to the plaintiff, and could have given that portion of property to others.
He can validly accomplish the same result by using the language that he did in the codicil in this
case.” Estate of Gehrt, 134 Ill.App.3d at 311, 89 Ill. Dec. 265, 480 N.E.2d 151.
The appellate court then quoted this court’s opinion in Ransdell:
“While it is of the first importance to society that contract and testamentary gifts which are
calculated to prevent lawful marriages or to bring about the separation or divorcement of
husbands and wives should not be upheld, it is no less important that persons of sound mind and
memory, free from restraint and undue influence, should be allowed to dispose of their property
by will, with such limitations and conditions as they believe for the best interest of their donees.”
Ransdell, 172 Ill. at 446, 50 N.E. 111.
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We conclude, reading Ransdell, Shackelford, Gerbing, and Gehrt together, that no interest vested in the
Feinbergs’ grandchildren at the time of Max’s death because the terms of his testamentary trust were
subject to change until Erla’s death. Because they had no vested interest that could be divested by
their noncompliance with the condition precedent, they were not entitled to notice of the existence
of the beneficiary restriction clause. Further, because they were not the Feinbergs’ heirs at law, the
grandchildren had, at most, a mere expectancy that failed to materialize for four of them when, at
the time of Erla’s death, they did not meet the condition established by Max.
Applicability of Restatement (Third) of Trusts
In reaching its decision, the appellate court also relied on section 29 of the Restatement (Third) of
Trusts, and the explanatory notes and comments thereto. 383 Ill.App.3d at 997, 322 Ill. Dec. 534,
891 N.E.2d 549.
Since the Restatement (Second) of Trusts was adopted in 1959, this court has, on several occasions,
cited various sections with approval. See, e.g., Eychaner v. Gross, 202 Ill.2d 228, 25, 269 Ill. Dec. 80,
779 N.E.2d 1115 (2002)(requirements for creation of a trust). We have not yet had reason to
consider whether any section of the Restatement (Third) of Trusts, which was adopted in 2003, is an
accurate expression of Illinois law and we need not do so in this case.
The validity of a trust provision is not at issue, as the distribution provision of Max’s trust was
revoked when Erla exercised her power of appointment. Her distribution scheme was in the nature
of a testamentary provision, which operated at the time of her death to determine who would be
entitled to a $250,000 distribution.
The appellate court mistakenly compared the present case to an illustration accompanying Comment
j to section 29 of the Restatement (Third) of Trusts. 383 Ill.App.3d at 997, 322 Ill. Dec. 534, 891
N.E.2d 549. The illustration concerns a trust created by an aunt to benefit her nephew, who was to
receive discretionary payments until age 18, and all income and discretionary payments until age 30,
at which time he would receive an outright distribution of all trust property. However, all of his
rights under the trust would end if, before the trust terminated on his thirtieth birthday, he married
“a person who is not of R Religion.” If he violated this condition, the remainder of the trust would
be given to a college. The drafters of the Restatement called this an “invalid restraint on marriage,”
and stated that the invalid condition and the gift over to the college should not be given effect.
Restatement (Third) of Trusts § 29, Explanatory Notes, Comment j, Illustration 3, at 62–64 (2003).
This illustration is similar to Max’s original trust provision. Under his plan, the grandchildren who
were not “deemed deceased” at the time of Erla’s death would receive distributions from the trust
for life, subject to termination if they should violate the marriage restriction. Erla’s scheme,
however, does not operate prospectively to encourage the grandchildren to make certain choices
regarding marriage. It operated on the date of her death to determine which, if any, of the
grandchildren qualified for distribution on that date. The condition was either met or it was not met.
There was nothing any of the grandchildren could have done at that time to make themselves
eligible or ineligible for the distribution.
As this court noted in Ransdell, a condition precedent, even if a “complete restraint” on marriage,
“will, if broken, be operative and prevent the devise from taking effect.” However, “[w]hen the
condition is subsequent and void it is entirely inoperative, and the donee retains the property
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unaffected by its breach.” Ransdell, 172 Ill. at 447, 50 N.E. 111, quoting 2 Pomeroy, Equity
Jurisprudence § 933B (1881).
Max’s will and trust created no vested interests in the children or grandchildren because Erla
retained a power of appointment until her death. No vested interests were created in 1997 by Erla’s
exercise of her power of appointment. Her actions created a mere expectancy, contingent on her
dying without further amending the distribution scheme. Because no interest vested in any of the
grandchildren until Erla’s death, her appointment created a condition precedent. As we noted in
Ransdell, under these circumstances, even a complete restraint on marriage (i.e., distribution only to
unmarried grandchildren) would be operative.
Thus, this is not a case in which a donee, like the nephew in the illustration, will retain benefits
under a trust only so long as he continues to comply with the wishes of a deceased donor. As such,
there is no “dead hand” control or attempt to control the future conduct of the potential
beneficiaries. Whatever the effect of Max’s original trust provision might have been, Erla did not
impose a condition intended to control future decisions of their grandchildren regarding marriage or
the practice of Judaism; rather, she made a bequest to reward, at the time of her death, those
grandchildren whose lives most closely embraced the values she and Max cherished.
The trial court and the appellate court erred by finding a violation of public policy in this case. While
the beneficiary restriction clause, when given effect via Erla’s distribution provision, has resulted in
family strife, it is not “so capable of producing harm that its enforcement would be contrary to the
public interest.” Kleimwort Benson, 181 Ill.2d at 226, 229 Ill. Dec. 496, 492 N.E.2d 269.
Notes, Problems, and Questions
1. How far should we go to respect the wishes of the dead over the wishes of the living? What are
the relevant factors to consider?
2. The Courts in Maddox and Shapira relied on the reasonableness test to evaluate the validity of the
conditions in the respective cases. What facts justify the different outcome of the cases?
3. In light of the availability of Internet dating sites like Match.com and the current modes of
transportation, would the outcome of the Maddox be different if the case was before the court
today?
4. If there were only 700 Jewish women between the ages of 18 and 25, would it be reasonable to
expect Daniel to find a Jewish wife? Would you say that the condition was satisfied if Daniel’s
intended wife and both her parents converted to Judaism?
5. If Daniel Shapira married his male partner, who was the product of two Jewish parents, would he
have a right to inherit from his father’s estate?
6. Suppose Daniel Shapira was only attracted to non-Jewish women. Is it reasonable to require him
to fulfill the condition or lose his inheritance?

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7. Suppose Dr. Shapira’s will conditioned his gift to Daniel on his marrying a non-African American
woman. How would that condition fare in light of the reasoning in Shapira?
8. In Feinberg, what did the court determine the testator’s motivation to be with regards to the
inclusion of the beneficiary restriction clause in his will? Should motive matter?
9. In Feinberg, what were the competing public policies that the court discussed? Which one should
be given the greater weight?
10. In Feinberg, what did the court state was the appropriate test to decide whether or not the
beneficiary restriction clause violated public policy? Why did the court conclude that no such
violation had occurred?
11. Do any of the following restrictions violate public policy? Why? Why not?
(a) Emma’s daughter, Carrie, is involved in an abusive relationship. Instead of leaving George,
the abuser, Carrie gets engaged to him. Emma revises her will to include the following
clause: “Emma will not inherit any portion of the trust I created on her behalf unless she
ends her relationship with George. Emma must end the relationship within 6 months of my
death. If at the time of my death, Emma has married George, she will not receive any
portion of my estate.”
(b) Carson’s only son, Gary, has a gambling problem. He has lost thousands of dollars and been
beaten up by loan sharks when he could not pay his gambling debts. Carson includes the
following clause in his will: “My son Gary will not receive any portion of my estate unless he
enters and completes rehab for his gambling addiction prior to my death or within one
month of my death. In order to inherit, Gary must not enter a casino for at least 6 months
after he finishes rehab.”
(c) Fred is a devout Catholic who does not believe in divorce for any reason. Fred’s daughter,
Jill found out that her husband, Bryan, has been having an affair. Thus, Jill files for divorce.
A few months later, Fred revises his will to include the following clause: “Jill will not inherit
any portion of my estate unless she dismisses her divorce complaint against Bryan and agrees
to marriage counseling. If at the time of my death, Jill has divorced Bryan, she will not be
entitled to inherit any part of my estate.”
Class Discussion Tool
Wilma and John started dating in college. On their third date, John shoved Wilma’s head into the
toilet and knocked out two of her teeth. Wilma’s mother, Thelma, tried for years to get Wilma to
end the abusive relationship. Wilma loves John and hopes that things will get better. Wilma is
Thelma’s only child. Thelma died leaving an estate worth several million dollars. In her will, Thelma
left her entire estate to John on the condition that he end his relationship with Wilma. John is happy
to choose the money over Wilma, but Wilma is desperate to hold on to the relationship. Wilma was
able to talk John into challenging the condition placed on his inheritance. What is the possible
outcome of the case?

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Chapter Eight: Disinheritance
8.1

Introduction

The purpose of this chapter is to explore ways in which a person, including a child, can be
disinherited. Should persons be allowed to disinherit their children? Should the government be
forced to provide financial support for the dependent minor or disabled child of a millionaire? The
legislators in the majority of states in America have answered these questions in the affirmative by
permitting a testator to completely disinherit his or her child. Louisiana is the only states that
protects a minor or disabled child from being disinherited.
8.2

Exceptions

8.2.1

Forced Heirs

The state of Louisiana makes special exceptions for children under the age of twenty-three
and permanently disabled children. Those classes of children are designated as forced heirs because
the decedent is forced to name them as heirs in his or her will and the probate court is forced to
consider them as heirs under the intestacy system.

LSA. C.C. Art. 1493. Forced heirs
Forced heirs are descendants of the first degree who, at the time of the death of the
decedent, are twenty-three years of age or younger or descendants of the first degree of any
age who, because of mental incapacity or physical infirmity, are permanently incapable of
taking care of their persons or administering their estates at the time of the death of the
decedent.
8.3

Negative Disinheritance

Parents have the right to disinherit their children. Parents may accomplish this by expressly
stating in writing that they intend to disinherit their children and leave their property to charity or
other persons.81 Probate courts will usually comply with the parents’ request that their children not
receive any part of their estate. Under the common law negative disinheritance rule, in order to
disinherit a child the parent has to do more than just state that the child is intentionally disinherited.
In some cases, a disinherited child may inherit from the estate if all or a part of the estate is
distributed under the intestacy system. For example, all of the estate would be disposed of in
accordance with the intestate succession laws if the will was invalidated for any reason, including
undue influence, insane delusion and/or duress. In addition, a partial intestacy may result if the
testator failed to devise any part of his or her estate by will. In any of those cases, being disinherited
would not prevent a child from taking an intestate share. See the following example and case.

Bill Gates, Warren Buffet, and other billionaires, have indicated their plans to leave most of their money to charity.
They plan to leave their children nominal amounts or, in some cases, nothing in their wills.
81

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8.3.1

Example

Ross had three children, Olivia, Dennis and Susie. Ross disapproved of the man Susie
married, so he decided to disinherit her. In his will, Ross stated, “My house, my money and all of my
personal property is to be divided between Olivia and Dennis. Susie is not to inherit any of my
property.” Ross did not include anything in his will with regards to the distribution of his 500 acre
farm. Under the negative disinheritance rule, although Susie was specifically disinherited by Ross’
will, Susie may be entitled to a share of the farm because it was not devised to other persons. She
was entitled to receive an interest in the farm and any other property not disposed of by the will.
Susie’s share of the estate depended upon the intestacy system.
Most jurisdictions no longer apply the negative disinheritance rule. The rule has been
changed by application of UPC § 2-101(b)(1990). That section permits the testator to execute a will
that disinherits a child. The disinherited child is treated as if he or she disclaimed his or her intestate
share. As a result, the child is treated as if he or she had died before the testating parent. Some states
have abolished the negative inheritance rule by statute.
8.3.2

UPC § 2-101 Intestate Estate
(b) A decedent by will may expressly exclude or limit the right of an individual or class to
succeed to property of the decedent passing by intestate succession. If that individual or a
member of that class survives the decedent, the share of the decedent’s intestate estate to
which that individual or class would have succeeded passes as if that individual or each
member of that class had disclaimed his [or her] intestate share.

In re Estate of Melton, 272 P.3d 668 (2012)
PER CURIAM:
This is a dispute between the State and a testator’s daughter and half-sisters over his $3 million
estate. At issue is the proper distribution of the estate of the testator, who, by way of a handwritten
will, attempted to disinherit all of his heirs but was unsuccessful in otherwise affirmatively devising
his estate. Under the common law, a disinheritance clause was unenforceable in these circumstances.
In the proceedings below, after determining that the testator’s handwritten will was a valid
testamentary instrument that revoked his earlier will, the district court applied the prevailing
common law rule, and thereby deemed the testator’s disinheritance clause unenforceable. The court
therefore distributed the testator’s entire estate to his disinherited daughter, pursuant to the law of
intestate succession, and rejected the claim that because he disinherited all of his heirs, his estate
must escheat to the State to be used for educational purposes.
Crucially, however, the Nevada Legislature has enacted a statute providing, in pertinent part, that a
will includes “a testamentary instrument that merely ... excludes or limits the right of an individual or
class to succeed to property of the decedent passing by intestate succession.” NRS 132.370. We
conclude that by its plain and unambiguous language, NRS 132.370 abolishes the common law rules
that would otherwise render a testator’s disinheritance clause unenforceable when the testator is
unsuccessful at affirmatively devising his or her estate. Here, although the district court correctly
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determined that the testator executed a valid handwritten will that revoked his earlier will, the court
erred in deeming the disinheritance clause contained therein unenforceable.
Finally, we consider whether an escheat is triggered when, as here, a testator disinherits all of his or
her heirs. We conclude that an escheat is triggered in such a circumstance because, when all heirs
have been disinherited, the testator “leaves no surviving spouse or kindred” under NRS 134.120
pursuant to the plain and commonly understood meaning of that phrase. Accordingly, the district
court erred in determining that the testator’s estate does not escheat.
Because the disinheritance clause contained in the testator’s will is enforceable, we reverse the
judgment of the district court. As the testator disinherited all of his heirs, his estate must escheat.
FACTS AND PROCEDURAL HISTORY
The 1975 will
In 1975, William Melton executed a formal will. The will was comprised of two forms, which
Melton and three witnesses signed. Melton devised most of his estate to his parents and devised
small portions to his brother and two of his cousins, Terry Melton and Jerry Melton. He also
indicated that his daughter was to receive nothing. In 1979, Melton executed a handwritten codicil
on the back of one of the 1975 will forms that provided his friend, Alberta (Susie) Kelleher, should
receive a small portion of his estate (both will forms and the codicil are hereinafter referred to as
“the 1975 will”).
The 1995 letter
In 1995, Melton sent a handwritten letter to Kelleher. It reads:
5–15–95
5:00 AM
Dear Susie
I am on the way home from Mom’s funeral. Mom died from an auto accident so I thought I had
better leave something in writing so that you Alberta Kelleher will receive my entire estate. I do not
want my brother Larry J. Melton or Vicki Palm or any of my other relatives to have one penny of
my estate. I plan on making a revocable trust at a later date. I think it is the 15 of [M]ay, no
calendar, I think it[’]s 5:00 AM could be 7:AM in the City of Clinton Oklahoma
Lots of Love
Bill
/s/ William E. Melton
AKA Bill Melton
[Social security number]

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Discovery of the 1975 will and the 1995 letter
Kelleher died in 2002, thus predeceasing Melton, who died in 2008. Shortly after Melton’s death,
respondent John Cahill, Clark County Public Administrator, initiated a special administration of
Melton’s estate. During this administration, it was discovered that Melton had a daughter,
respondent Vicki Palm. The 1995 letter was also discovered. Initially, Palm and respondent
Elizabeth Stessel were appointed co-administrators of Melton’s estate. But the district court
suspended their powers after determining that a disinterested party should administer the estate
because a dispute over the proper distribution of the estate had arisen between Melton’s half-sisters,
appellants Linda Melton Orte and Sherry L. Melton Briner, appellant State of Nevada, respondents
Bryan Melton and Robert Melton and Palm. The district court therefore appointed Cahill to be the
special administrator of Melton’s estate. Thereafter, Cahill obtained access to Melton’s safe deposit
box and discovered the 1975 will. The appraised net value of Melton’s estate is approximately $3
million.
The parties and their respective positions
Melton’s daughter
Palm, Melton’s only known child, initially argued that the 1995 letter is not a valid will, and that
Melton’s estate therefore should pass to her under the statutes governing intestate succession.
Following the discovery of the 1975 will, however, she argued that the 1995 letter is a valid will and
that it revoked the 1975 will. Palm argued that although the 1995 letter is a valid will, it is ineffective
because the only named devisee, Kelleher, predeceased Melton. Thus, she maintained that Melton’s
estate should pass through intestacy, under which she has priority pursuant to NRS 134.100.
Melton’s half-sisters
In the proceedings below, Melton’s half-sisters contended that the 1995 letter is not a valid will, and
therefore, the 1975 will is still effective. In addition, they argued that if the 1995 letter is a valid will,
it does not effectively revoke the 1975 will. They further argued that, even assuming that the 1995
letter is a valid will that revoked the 1975 will, the revocation should be disregarded under the
doctrine of dependent relative revocation. Although Melton’s half-sisters were not named as
devisees in the 1975 will, they asserted that under Nevada’s antilapse statute, NRS 133.200. They
could take their parent’s share of Melton’s estate.
The State
The State asserted that the 1995 letter is a valid will that revoked the 1975 will. It argued that the
Legislature’s revisions to the Nevada Probate Code in 1999 provide for the enforcement of
disinheritance clauses, even when an estate passes by intestate succession. Thus, the State contended
that because Melton expressly disinherited all of his relatives in the 1995 letter, his estate must
escheat.
The district court order
After extensive briefing by the parties, the district court determined as follows: (1) the 1995 letter is
a valid will; (2) although the 1995 letter is a valid will, the disinheritance clause contained therein is
377

unenforceable; (3) the 1995 letter revoked the 1975 will; (4) the revocation of the 1975 will cannot
be disregarded under the doctrine of dependent relative revocation because NRS 133.130. Precludes
the doctrine in Nevada; and (5) even if the doctrine of dependent relative revocation applies in
Nevada, the doctrine is not applicable under the particular facts presented in this case. Accordingly,
the district court distributed Melton’s estate to Palm pursuant to the intestate succession scheme.
Melton’s half-sisters and the State each appealed.
DISCUSSION
On appeal, the parties largely maintain the positions that they asserted during the proceedings below.
Thus, in their appeal, Melton’s half-sisters’ primary contention is that the district court erred in
determining that the 1975 will does not control the distribution of Melton’s estate. In its appeal, the
State’s main contention is that the district court erred in deeming Melton’s disinheritance clause
unenforceable and in determining that his estate does not escheat.
The parties’ positions compel us to resolve a sequence of issues. First, we must consider whether the
1995 letter is a valid will, and if so, whether the disinheritance clause contained therein is
enforceable. We conclude that the 1995 letter is a valid will and that the disinheritance clause
contained therein is enforceable under NRS 132.370. Next, we address whether the 1995 letter
revoked the 1975 will. Answering this question in the affirmative, we next consider whether to adopt
the doctrine of dependent relative revocation in Nevada and whether the doctrine can be applied to
render the revocation of the 1975 will ineffective. Because the doctrine of dependent relative
revocation promotes the sound policy of effectuating a testator’s intent as closely as possible, we
take this opportunity to expressly adopt the doctrine. We conclude, however, that the doctrine
cannot be applied under the particular facts of this case. Finally, we turn to the proper distribution
of Melton’s estate under the terms of the 1995 letter. We conclude that because Melton disinherited
all of his heirs, his estate must escheat to the State pursuant to NRS 134.120. Accordingly, we
reverse the judgment of the district court.
Standard of review
Whether a handwritten document is a valid will is a question of law reviewed de novo. Randall v.
Salvation Army, 100 Nev. 466, 470, 686 P.2d 241, 243 (1984). Similarly, “questions of statutory
construction, including the meaning and scope of a statute, are questions of law, which [we] review [
] de novo.” City of Reno v. Reno Gazette-Journal, 119 Nev. 55, 58, 63 P.3d 1147, 1148 (2003). Further,
the interpretation of a will is typically subject to our plenary review. Matter of Estate of Meredith, 105
Nev. 689, 691, 782 P.2d 1313, 1315 (1989). Lastly, whether a will has been revoked is also generally a
question of law reviewed de novo. Estate of Anderson, 56 Cal.App.4th 235, 65 Cal. Rptr.2d 307, 311
(1997).
“When a statute is clear and unambiguous, we give effect to the plain and ordinary meaning of the
words and do not resort to the rules of construction.” Cromer v. Wilson, 126 Nev. ___, ___, 225 P.3d
788, 790 (2010). As we have explained, we “must give [a statute’s] terms their plain meaning,
considering its provisions as a whole so as to read them in a way that would not render words or
phrases superfluous or make a provision nugatory.” Southern Nev. Homebuilders v. Clark County, 121
Nev. 446, 449, 117 P.3d 171, 173 (2005) (internal quotation omitted). We also have explained that a
statute’s express definitions are controlling because “[t]o read [them] otherwise would lead to the
absurd result of rendering [such provisions] ... mere surplusage.” Boulder Oaks Cmty. Ass’n v. B & J
378

Andrews, 125 Nev. 397, 406, 215 P.3d 27, 32-33 (2009).
The 1995 letter is a valid will
Melton’s half-sisters assert that the 1995 letter is simply a letter and nothing more. They emphasize
that the 1995 letter was discovered amongst miscellaneous papers in Melton’s home, in contrast to
the 1975 will, which was found carefully placed in a safe. Thus, Melton’s half-sisters argue that if
Melton intended for the 1995 letter to be his will, he would have treated it as carefully as the 1975
will. Therefore, they contend that because the 1995 letter is not a valid will, the 1975 will still
controls the distribution of Melton’s estate.
Nevada law gives holographic wills the same effect as formally executed wills. NRS 133.090(3). “A
holographic will is a will in which the signature, date and material provisions are written by the hand
of the testator, whether or not it is witnessed or notarized.” NRS 133.090(1).
[7]

The 1995 letter was written, signed, and dated by Melton. It contains the material provisions of a
will because it provided that Kelleher should receive Melton’s estate and that his relatives should
receive nothing. Although Melton did not store the 1995 letter in the same manner that he stored
the 1975 will, its validity as a holographic will does not depend upon him doing so. Melton’s
testamentary intent is evinced by his references to his mother’s funeral, her untimely death, and his
statement that he “had better leave something in writing.” Accordingly, we conclude that the 1995
letter is a valid holographic will.
The disinheritance clause contained in the 1995 letter is enforceable
Having concluded that the 1995 letter is a valid holographic will, we now consider the State’s
contention that the district court erred in applying the prevailing common law rule regarding
disinheritance clauses and thereby deeming the disinheritance clause unenforceable. We begin our
analysis of this contention by providing a background on the common law disinheritance rules, the
criticisms thereof, and the modern treatment of disinheritance provisions. Next, we consider the
parties’ specific arguments regarding whether NRS 132.370 reverses the common law disinheritance
rules in Nevada.
Background on disinheritance clauses
Under the common law, two general rules, known as the “English rule” and the “American rule,”
have been developed by courts considering whether to enforce disinheritance provisions as to
property passing by intestate succession. Under the English rule, a disinheritance provision, or a socalled “negative will” was enforceable only if “the testator clearly expressed an intent to limit an heir
to the devise (if any) contained in the will, and at least one other heir remained eligible to receive the
intestate property.” Under the American rule, a testator could “prevent an heir from receiving his
share of any property that passes by intestacy only by affirmatively disposing of the entire estate
through a will.”
As its name suggests, the majority of jurisdictions subscribe to the American rule. See, e.g., In re
Barnes’ Estate, 63 Cal.2d 580, 47 Cal.Rptr. 480, 407 P.2d 656, 659 (1965) (“It is settled that a
disinheritance clause, no matter how broadly or strongly phrased, operates only to prevent a
claimant from taking under the will itself, or to obviate a claim of pretermission. Such a clause does
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not and cannot operate to prevent the heirs at law from taking under the statutory rules of
inheritance when the decedent has died intestate as to any or all of his property.”); 4 William J. Bowe
and Douglas H. Parker, Page on the Law of Wills § 30.17, at 148 (rev. ed. 2004) (“If testator does not
dispose of the whole of his estate by his last will and testament, and such will contains negative
words of exclusion, the great majority of states hold that such negative words cannot prevent
property from passing under the statutes of descent and distribution.”).
Courts following the American rule have espoused three rationales for doing so: (1) enforcing
disinheritance provisions as to intestate property “would create an undesirable ‘mixing’ of the
probate and intestacy systems by requiring courts to alter the distribution scheme provided in the
intestacy statute”; (2) because disinheritance clauses do not expressly name devisees, “their
enforcement would in effect require courts to draft new wills for testators”; and (3) disinheritance
clauses are simply “inconsistent with the law of succession.” Heaton, supra, at 186.
The common law disinheritance rules, and the rationales underpinning them, have been the subjects
of intense criticism. See, e.g., Frederic S. Schwartz, Models of the Will and Negative Disinheritance, 48
Mercer L.Rev. 1137, 1140, 1167 (1997) (stating that the justifications given for the common law
rules are “obviously circular” and unsatisfactory, and urging courts “to give straightforward effect”
to disinheritance provisions); Heaton, supra, at 184, 186 (noting that none of the rationales for the
American rule “withstand [ ] analysis,” and concluding that it defeats testators’ intentions).
Not surprisingly, because the common law disinheritance rules distort testamentary intent and
conflict with testamentary freedom, the modern trend is to reject the traditional rules. The Uniform
Probate Code (UPC) reflects this trend, providing that “[a] decedent by will may expressly exclude
or limit the right of an individual or class to succeed to property of the decedent passing by intestate
succession.” Unif. Probate Code § 2-101(b), 8/I U.L.A. 79 (1998). The drafters of the UPC stated
that in enacting this provision, they abrogated “the usually accepted common-law rule, which defeats
a testator’s intent for no sufficient reason,” Id. § 2-101 cmt. The Restatement (Third) of Property
also rejects the common law disinheritance rules, providing that “[a] decedent’s will may expressly
exclude or limit the right of an individual or class to succeed to property of the decedent passing by
intestate succession.” Restatement (Third) of Prop.: Wills and Other Donative Transfers § 2.7
(1999). As with the UPC, the Restatement explains that this provision “reverses the common-law
rule, which defeats a testator’s intent for no sufficient reason.” Id. § 2.7 cmt. a. With the foregoing in
mind, we turn to whether the Legislature intended for NRS 132.370 to abolish the common law
disinheritance rules.
NRS 132.370 abolishes the common law disinheritance rules
The State asserts that by revising the Nevada Probate Code in 1999 to provide that a “will” includes
a “testamentary instrument that merely .... excludes or limits the right of an individual or class to
succeed to property of the decedent passing by intestate succession,” the Legislature has rejected
both the English and American rules. Thus, the State argues that disinheritance provisions are now
enforceable as to property passing by intestate succession. The State acknowledges that Nevada has
not adopted the UPC, but it points out the similarity in the language of NRS 132.370 and UPC
section 2-101.
Palm contends that the “definition sections of Nevada’s Probate Code should not be given
substantive effect”7 and claims that giving effect to disinheritance provisions would make estate
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planning unpredictable. In essence, she believes that the language that the Legislature used in NRS
132.370 was imprecise and unwise. Thus, Palm asserts that we should apply the common law
disinheritance rules, which would render Melton’s disinheritance clause unenforceable. Palm argues
that because Melton’s disinheritance clause is unenforceable, the district court correctly determined
that she should receive Melton’s estate, as she has priority under the intestate succession scheme.
NRS 132.370defines “will” as follows:
“Will” means a formal document that provides for the distribution of the
property of a decedent upon the death of the decedent. The term includes a
codicil and a testamentary instrument that merely appoints an executor, revokes or
revises another will, nominates a guardian, or expressly excludes or limits the right of an
individual or class to succeed to property of the decedent passing by intestate succession.
(Emphases added.)
The interpretation of NRS 132.370 is a matter of first impression for this court. NRS 132.370
defines a “will” broadly. In stark contrast to the common law disinheritance rules, NRS
132.370imposes no requirement that an instrument affirmatively devise property in order to be
enforceable. Rather, a will includes an instrument that “merely” limits an individual or class from
inheriting. The plain language of NRS 132.370 thus demonstrates that the Legislature envisioned a
probate system in which disinheritance provisions can be enforced as to intestate property. Though
Palm considers NRS 132.370 unwise, under well-established canons of statutory interpretation, we
must not render it nugatory or a mere surplusage. See Boulder Oaks Cmty. Ass’n v. B & J Andrews, 125
Nev. 397, 406, 215 P.2d 27, 32-33 (2009); Southern Nev. Homebuilders v. Clark County, 121 Nev. 446,
449, 117 P.3d 171, 173 (2005).
The significance of NRS 132.370 cannot be overstated. While the Legislature’s amendments to the
probate code in 1999 are not a wholesale adoption of the UPC, the language of NRS 132.370
mirrors that of UPC section 2-101, which, as previously noted, was designed to abrogate the
common law disinheritance rules. Giving effect to disinheritance provisions, however, is not so
radical that it creates the estate planning upheaval that Palm claims it would. As UPC states such as
Arizona, Colorado, and North Dakota demonstrate, such provisions can be seamlessly incorporated
into the existing probate system. See, e.g., Matter of Estate of Krokowsky, 182 Ariz. 277, 896 P.2d 247,
249 n. 2 (1995); In re Estate of Walter, 97 P.3d 188, 192 (Colo.Ct.App.2003); In re Estate of Samuelson,
757 N.W. 2d 44, 47 (N.D. 2008).
In addition, we find the approach taken by New York courts instructive. New York, like Nevada,
has not adopted the UPC, but it has enacted a statute defining a “will,” in relevant part, as “an oral
declaration or written instrument ... whereby a person disposes of property or directs how it shall
not be disposed of....” N.Y. Est. Powers & Trusts Law § 1-2.19(a) (McKinney 1998). New York
courts have interpreted this definition to be a reversal of the common law disinheritance rules:
Prior to September 1, 1967, the effective date of [the statute defining “will”], the cases held that:
“The legal rights of the heir or distributee to the property of deceased persons, cannot be defeated
except by a valid devise or bequest of such property to other persons”....
However, in this Court’s opinion the new statute is unmistakable in providing that a testator now
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may disinherit an heir from all his property, both testamentary and intestate assets.
In re Will of Beu, 70 Misc.2d 396, 333 N.Y.S.2d 858, 859 (Sur.Ct.1972)(citation omitted) (quoting In re
Hefner’s 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
also Matter of Will of Stoffel, 104 Misc.2d 154, 427 N.Y.S.2d 720, 721 (Surr.Ct. 1980) (“The definition
of ‘will’ changed the rule previously existing which made directions to disinherit someone ineffective
unless all of the Decedent’s assets were effectively disposed to others.”), aff’d, 79 A.D.2d 658, 437
N.Y.S.2d 922 (1980). In short, we conclude that in enacting NRS 132.370, the Nevada Legislature,
like the New York Legislature, abolished the common law disinheritance rules.
Here, Melton drafted a will in which he expressly excluded all of his heirs: “I do not want my brother
Larry J. Melton or Vicki Palm or any of my other relatives to have one penny of my estate.” Melton’s
intent to disinherit his heirs could not have been clearer. See Matter of Estate of Meredith, 105 Nev. 689,
691, 782 P.2d 1313, 1315 (1989) (“[T]he surest way ... to carry out a testator’s intent is to construe a
will according to the plain meaning of the terms used in the will.”). Although Palm speculates that
Melton only intended to exclude her if his estate passed through his will, he placed no qualifications
on his disinheritance clause. Without such direction from Melton, it cannot be said that he meant to
disinherit Palm if his estate passed through his will but that he would have been content to have her
receive his estate if it passed through intestate succession. See Estate of Samuelson, 757 N.W.2d at 48
(“[W]hen a testator expressly excludes an individual in his will, the individual is excluded from taking
under both testate and intestate succession, unless the testator expressly specifies a contrary
intention.”). Pursuant to NRS 132.370, simply because Kelleher predeceased Melton, thereby
causing his devise to her to lapse, does not render the remainder of the will, including its
disinheritance clause, unenforceable. Accordingly, we conclude that the disinheritance clause
contained in the 1995 letter is enforceable.
The proper distribution of Melton’s estate under the 1995 letter is an escheat
We now turn to the proper distribution of Melton’s estate under the terms of the 1995 letter. The
State argues that because Melton disinherited all of his heirs in the 1995 letter, an escheat is
triggered.
Palm asserts that the requisites of an escheat have not been met because, under NRS 134.120, an
intestate estate can escheat only when “the decedent leaves no surviving spouse or kindred.” Thus,
she contends that because she survived Melton in the literal sense, his estate cannot escheat. Palm
also argues that the law abhors escheats, and therefore, as a matter of public policy, an escheat
should not be permitted.
Although the 1995 letter contains a disinheritance clause, and is therefore an enforceable
testamentary instrument under NRS 132.370, Melton’s estate nonetheless must descend through
intestacy because he was unsuccessful at affirmatively distributing his estate. See NRS 132.195 (an “
‘[i]ntestate estate’ includes an estate where no will has been offered or admitted to probate as the last
will and testament and an estate where the will does not distribute the entire estate”). While this
causes a “mixing” of the testate and intestate systems that was discouraged under the common law,
the Legislature expressly contemplated this result. See NRS 132.370 (a “‘will’ ” includes an
instrument that excludes an heir from receiving property “passing by intestate succession”).
Next, NRS 134.120, the provision that sets forth the requisites for the escheat of an intestate estate,
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provides: “If the decedent leaves no surviving spouse or kindred, the estate escheats to the State for
educational purposes.” We reject Palm’s cramped interpretation of this provision because it is
commonly understood that when a disinheritance clause is enforceable as to intestate property, a
disinherited heir is treated, as a matter of law, to have predeceased the testator. See In re Will of Beu,
70 Misc.2d 396, 333 N.Y.S.2d 858, 861 (Sur.Ct. 1972) (a disinherited heir is “considered to have
predeceased the testator” under the New York statute providing for the enforcement of
disinheritance clauses as to intestate property); Frederic S. Schwartz, Models of the Will and Negative
Disinheritance, 48 Mercer L.Rev. 1137, 1145 (1997) (“A provision disinheriting [an heir] should result
in an application of the intestacy statute as if [that heir] predeceased the testator.”); J. Andrew
Heaton, Comment, The Intestate Claims of Heirs Excluded by Will: Should “Negative Wills” Be Enforced?, 52
U. Chi. L. Rev. 177, 192 (1985) (when a disinheritance clause is enforced as to intestate property
“the excluded heir is treated as having predeceased the testator”).
Thus, because we presume that the Legislature was aware of the commonly understood effect of the
language of NRS 134.120 when it drafted the statute, this is how it must be construed. See Beazer
Homes Nevada, Inc. v. Dist. Ct., 120 Nev. 575, 580-81, 97 P.3d 1132, 1135-36 (2004) (“When a
legislature adopts language that has a particular meaning or history, rules of statutory construction ...
indicate that a court may presume that the legislature intended the language to have meaning
consistent with previous interpretations of the language.”). Accordingly, we conclude that when a
testator disinherits all heirs, he or she “leaves no surviving spouse or kindred” for the purposes of
NRS 134.120 and, as a consequence, an escheat is triggered.
The law disfavors escheats. In re Estate of Cruz, 215 Cal. App.3d 1416, 264 Cal. Rptr. 492, 493 (1989).
The commonly cited reason for this principle is that “society prefers to keep real property within the
family as most broadly defined, or within the hands of those whom the deceased has designated.”
United States v. 1978.73 Acres of Land, More or Less, 800 F.2d 434, 435 (4th Cir. 1986). But the law also
strives to effectuate the intentions of testators. Zirovic v. Kordic, 101 Nev. 740, 741, 709 P.2d 1022,
1023 (1985). It is unmistakable that in enacting NRS 132.370, the Legislature weighed these
competing considerations and determined that testamentary freedom has primacy over the policy
disfavoring escheats. Thus, when, as here, a testator disinherits all of his or her heirs, the law’s
disfavor of escheats does not prevent an estate from passing to the State. Accordingly, we conclude
that Melton’s estate must escheat to the State.
CONCLUSION
Because the disinheritance clause contained in Melton’s will is enforceable, we reverse the judgment
of the district court. As Melton disinherited all of his heirs, his estate escheats.
8.4

Expressed Disinheritance by the Testator

When parents place restrictions on their children’s right to inherit, those restrictions must be
reasonable or the court will not enforce them. Nonetheless, a parent can disinherit a child for no
particular reason. Courts typically do not analyze the motives of the testator. However, in some
cases, even if the child is disinherited, he or she may still be allowed to inherit from his or her
parent. Those cases usually involve children who are legally recognized as creditors or other persons
who have a right to receive property from the decedent that is independent of their relation to the
testator.
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Estate of D.M.R., 735 N.E.2d 359 (Mass. 2000)
MARSHALL, C.J.
Pursuant to G.L. c. 215, § 13, and Mass. R. Dom. Rel. P. 64, a judge in the Probate and Family
Court reserved and reported four questions concerning the financial obligations of a deceased
father’s estate to his minor child: “1. whether a testator, survived by a minor child to whom he owed
. . . support pursuant to a court order, may disinherit that child pursuant to the [omitted child
statute,] G.L. c. 191, § 20; “2. whether the child’s claim for support is in the nature of a preferred
creditor’s claim; “3. whether a posthumous support obligation includes assets of an inter vivos trust;
and “4. whether an order to secure postmajority educational support may be made in the
circumstances of posthumous support.”
We discuss the background facts and applicable law before answering the questions.
Background
The father died on November 20, 1994, at the age of fifty-five. He was divorced at the time of his
death. He was survived by two children, an adult daughter from his only marriage, and a minor child
(child) born on September 10, 1990, to the mother, L.W.K. (mother), to whom he was not married.
The mother was forty-two years old at the time of the child’s birth. Prior to the father’s death, the
mother brought a paternity action to establish him as her child’s father. On June 11, 1992, after a
hearing, a judge in the Probate and Family Court so determined, and ordered the father to pay child
support of $100 a week to the mother, the order to remain in effect “until further order of the
Court.” The father paid the required child support until his death.
On June 3, 1994, the father executed a will that disinherited his minor child, leaving to her the
amount of one dollar. He further directed that she “shall not be considered an heir-at-law of mine”
nor “a child of mine or issue of mine for any purpose under this will.” The will provided that, after
the payment of specific monetary bequests and disposition of certain tangible property, the
remainder of the estate be devised and bequeathed to a trust (trust) that the father had previously
established on February 3, 1977. On the same day the father also signed a final amendment to the
trust that restated all of the trust terms. The trust instrument authorized the trustees, on the father’s
death, to collect various life insurance policies and any devises and bequests made by the father to
the trust. The trust named the father’s sister (sister) and his adult daughter (the only child from his
quondam marriage) as the sole beneficiaries.
After the father’s death, the sister was appointed executrix of his estate. She filed a Federal estate tax
return that listed the father’s total gross estate as $800,398, and a taxable estate of $648,722. On the
death of the father, the mother filed a claim for Social Security benefits on her child’s behalf based
on the father’s participation in the Social Security system. It was determined that the child, as a
qualified minor, was entitled to receive at that time $849 a month in Social Security benefits. The
child is entitled to receive these benefits until she turns eighteen or until her nineteenth birthday if
she has not finished high school. The child is now ten years old. Her mother has the sole
responsibility for her care and upbringing. The child’s only source of income is the Social Security
benefits, in addition to support from her mother. A guardian ad litem, appointed to represent the
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child’s interests in the father’s estate, filed a complaint for modification of the child support order
entered in 1992, and a notice of claim against the estate seeking further support payments for the
child. Sometime later, a petition for authority to compromise was filed in the estate probate
proceeding in which the mother and the sister (executrix of the father’s estate) agreed to a settlement
of all claims of the child in the amount of $10,000. A second guardian ad litem, appointed to
represent the child’s interests, filed an opposition to the compromise.
After a hearing, the compromise was dismissed and an attorney was appointed to represent the child
in the modification action. The judge allowed a joint motion filed by the mother and the executrix to
amend the complaint for modification to add the trustees as defendants. The parties submitted a
statement of agreed facts and made a joint request for rulings. The judge ruled preliminarily that (1)
the father could not disinherit his minor child to defeat his support obligations; (2) the assets of the
inter vivos trust and the estate are subject to the child’s support claim; (3) she had the authority to
enter an order against the father’s estate for future educational support of the child; and (4) the
child’s receipt of Social Security benefits did not bar further claims for support. Because the judge
determined that the case presented questions of first impression, and that answers to the questions
materially affected the merits of the claim for modification, she reserved and reported four questions
and stayed the proceedings pending an appellate ruling. We granted the defendants’ application for
direct appellate review.
Questions One and Two.
For ease of discussion we address in tandem the first two questions. Testamentary freedom is not
absolute, and certain preexisting obligations have priority over all testamentary dispositions. See, e.g.,
Harrison v. Stevens, 305 Mass. 532, 535, 26 N.E.2d 351 (1940) (testamentary dispositions subject to
the “claims of creditors and to administration expenses”); G.L. c. 191, § 15, 16 (spousal elective
share takes priority over testamentary dispositions). See also H.J. Alperin & L.D. Shubow, Summary
of Basic Law § 22.113, at 565 (3d ed.1996). A legally enforceable obligation to pay child support, like
other financial obligations of the testator, takes precedence over testamentary dispositions and must
be satisfied prior to any distribution of assets under the will. (citations omitted). A parent charged
with an obligation to support his child cannot nullify that legal obligation by disinheriting his child
pursuant to G.L. c. 191, § 20. Beyond satisfaction of his support obligation, however, a parent is free
to exercise his testamentary discretion with respect to a minor child, as all others, and may disinherit
her.
In order to answer questions one and two, therefore, we must resolve whether the order to the
father to support his minor child survived his death. Specifically we must decide whether a child
support order, made pursuant to G.L. c. 209C, §9, during the father’s life, creates an obligation on
his estate to continue support until his child reaches majority, or whether any obligations for her
future support were extinguished by his death. The duty of a parent to support a minor child is
statutory. See, e.g., G.L. c. 208, § 28; G.L. c. 209, § 37; G.L. c. 209C, § 9. The question, therefore, is
one of statutory interpretation. We conclude that the death of the father does not extinguish his duty
to support his minor child. We do so for several reasons. First, contrary to the dissent, we are not
legislating but applying unequivocal policy mandates of the Legislature to the specific facts of this
case. For decades extending back into the Nineteenth Century, the Legislature has mandated and
this court has recognized that parents have an obligation to support their minor children. The
Legislature has expressed that duty in unmistakable terms: “It is the public policy of the
commonwealth that dependent children shall be maintained, as completely as possible, from the
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resources of their parents thereby relieving or avoiding, at least in part, the burden borne by the
citizens of the commonwealth.” G.L. c. 199A, §1, as amended through St.1998, c. 463, § 101
(approved with emergency preamble, Jan. 14, 1999). The Legislature has also decreed that the
statutes concerning child support enforcement “shall be liberally construed to effectuate” that public
policy. Id.
Second, in this Commonwealth there have been recent and profound legislative changes that have
increased significantly the obligation of parents to support their children. Federal law has also
increased significantly the obligations of parents for child support. Thus, both State and Federal law
are explicit in providing for the broadest possible support of minor children by their parents.
Moreover, under the Child Support Enforcement Act an “[o]bligor” is defined as “an individual, or
the estate of a decedent, who owes or may owe a duty of support, or who is liable under a child support
obligation,” plainly suggesting that the Legislature intended liability for child support obligations to
survive the death of a parent (emphasis supplied). G.L. c. 119A, § 1A. That the child support order
was entered in a paternity proceeding other than a divorce proceeding is of no significance, for the
Legislature has mandated that children born out of wedlock are entitled to the same rights and
protections of the law as all other children. (citations omitted).
Third, the Legislature has imposed an explicit duty on parents who divorce and those who give birth
to children out of wedlock to support their minor child until they attain their majority. General Laws
c. 209C, § 1, imposes child support responsibility on a parent from the child’s birth to the age of
eighteen, and beyond that period if certain statutory and readily discernible circumstances exist. See
Doe v. Roe, 23 Mass.App.Ct. 590, 594–595, 504 N.E.2d 659 (1987). See also G.L. c. 209, § 37
(imposing support obligations on separated parents of minor children). Where its terms are
unambiguous, a statute must be held to mean what it plainly expresses. (citations omitted). In this
case, the child support order is in force until the child is emancipated or “until further order of the
Court.” Neither of these contingencies has occurred. We are not free to add a further requirement,
beyond what the Legislature has declared, that the father is responsible for the support of his child
born out of wedlock “from [her] birth up to the age of eighteen,” G.L. c. 209C, § 1, but only until
his death.
Our ruling is also consistent with the declared public policy of this Commonwealth that dependent
children shall be maintained “as completely as possible” from the resources of their parents. G.L. c.
119A, §1. See G.L. c. 209C, § 20. It would be inconsistent with that and other mandates of the
Legislature to conclude that a father’s court-ordered support obligation abated on his death,
depriving his young daughter of the resources necessary for her maintenance. In an intact family,
minor children have security against the loss of support when one parent dies, even in the case of
testamentary disinheritance, because of the spousal elective share. G.L. c. 191, §§ 15, 16. See also G.L.
c. 190, § 1 (spouse’s right to share of property not disposed of by will); G.L. c. 193, §1 (surviving
spouse listed first in schedule of persons entitled to appointment to administer intestate’s estate);
G.L. c. 229, § 1 (right of surviving spouse to bring wrongful death action). Children of divorced
parents and children born out of wedlock do not have the same protection. For this reason, we are
unpersuaded by the defendants’ argument that our holding would unfairly discriminate against
children from intact families.
Fourth, a conclusion that child support obligations survive the death of a parent is consistent with
prevailing contemporary legal authority. See, e.g., Knowles v. Thompson, 166 Vt. 414, 418, 697 A.2d 335
(1997), citing Morris v. Henry, 193 Va. 631, 636, 70 S.E.2d 417 (1952) (“text writers and a decided
386

majority of cases hold that under modern conditions liability of the father is not necessarily
terminated by his death, and that there is no sound reason, unless prohibited by statute, why his
estate should not be charged with his obligation to support his minor children”). See also Edelman v.
Edelman, 65 Wyo. 271, 291–292, 199 P.2d 840 (1948), in which the Wyoming Supreme Court
reached the same conclusion fifty years ago. The Uniform Marriage and Divorce Act § 316(c), 9A
U.L.A. 102 (Master ed.1998), reflects this prevailing view: “Unless otherwise agreed in writing or
expressly provided in the decree, provisions for the support of a child are terminated by
emancipation of the child but not by the death of a parent obligated to support the child “ (emphasis added).
The comment to that section explains: “[T]his section terminates the obligation of a parent to
support a child, only upon the child’s emancipation. The parent’s death does not terminate the child’s right
to support, and the court may make an appropriate order establishing the obligation of the deceased
parent’s estate to the child” (emphasis added). Id. at 103.
Finally, there is nothing in G.L. c. 191, § 20, that prohibits such a construction. That statute “forbids
nothing and compels nothing; it merely provides a framework within which private testamentary
decisions may be freely made.” Hanson v. Markham, 371 Mass. 262, 265, 356 N.E.2d 702 (1976). Our
conclusion interpreting the legislative mandate that child support obligations do not abate at death
will not create any uncertainty for estate planning purposes. See Hornung v. Estate of Lagerquist, 155
Mont. 412, 419, 473 P.2d 541 (1970) (“the enforcement of an obligation for future support presents
no greater problems than any other unliquidated claim against an estate”). Unlike alimony, an order
to provide for the support of a minor child terminates at a specific age. Accordingly, the total
amount of child support that a parent is obliged to pay may be readily determined—in contrast to an
order to provide alimony that in many circumstances terminates only when a spouse remarries (a
date uncertain in the future) or on the recipient’s death (similarly uncertain). The protection of
minor children, most especially those who may be stigmatized by their “illegitimate” status or who
are not supported by divorced parents fully capable of doing so, has been a hallmark of legislative
action and of the jurisprudence of this court. Consistent with the public policy so clearly articulated
by the Legislature, the estate of the father in this case is charged with his court-imposed obligations
to support his minor child.
Question Three
We consider whether the father’s support obligation can be satisfied from the assets of his inter
vivos trust. We conclude that all the assets of the inter vivos trust established by the father, under
which he was the sole beneficiary entitled to funds at his request, and which he solely retained the
power to modify, alter or revoke, must be included in the estate and, as such, must be made available
to satisfy his child support obligations. Such a ruling is consistent with our law in closely related
areas.
We have held that, for the purpose of determining a surviving spouse’s elective share, G.L. c. 191, §
15, assets in an inter vivos trust over which the decedent had a general power of appointment,
exercisable by deed or by will, constitute the estate of the deceased spouse. See Sullivan v. Burkin, 390
Mass. 864, 867, 460 N.E.2d 572 (1984). The Appeals Court has similarly recognized that creditors
can reach the assets of an inter vivos trust to “the maximum amount which the trustee . . . could pay
to [the trustee] or apply for his benefit,” in order to satisfy the trustee’s debts to them. State St. Bank
& Trust Co. v. Reiser, 7 Mass.App.Ct. 633, 636, 389 N.E.2d 768 (1979). See Nile v. Nile, 432 Mass.
390, 734 N.E.2d 1153 (2000). See also Restatement (Second) of Trusts § 156(2) (1959); Restatement
(Second) of Property § 34.3(3) comments h, j (1990). Our earlier decisions reason that, as to
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property that a settlor may appoint to himself or his executors, the property could have been
devoted to fulfilling debts or a widow’s “special interests which should be recognized.” Sullivan v.
Burkin, supra at 869, 460 N.E.2d 572. We see no reason not to adopt the same reasoning for
purposes of payment of a child obligation debt, and the defendants offer none.
Question Four (Discussion Omitted)
So ordered.
Notes and Questions
1. Parents are legally obligated to provide financial support for their children. Therefore,
noncustodial parents must pay child support. Nonetheless, that duty ends when the parent dies.
Since children do not have a right to inherit from their parents, their parents can disinherit them.
However, should parents be permitted to disinherit minor and disabled children? What are the pros
and cons of the majority approach which allows parents to disinherit their children regardless of
their youth or disability?
2. What are the pros and cons of the Uniform Probate Code’s approach to the omitted child
problem?
3. Should parents be required to state reasons why they are disinheriting their children?
4. In light of the Hodel decision discussed in Chapter Seven, is Louisiana’s forced heir statute
unconstitutional? Is there a difference between prohibiting a person’s property from being disposed
of under the intestacy system and requiring that a portion of the person’s property be disposed of
under the intestacy system?
5. In all jurisdictions the spouse is entitled to a share of the decedent’s estate whether he or she
leaves a will or dies intestate. Therefore, a person cannot disinherit his or her spouse. In light of that
fact, should a person be able to disinherit his or her minor and disabled children?
8.5

Disinheritance by Operation of Law (Slayer Rule)

On August 26, 1989, Erik and Lyle Menendez gunned down their parents in the den of their
mansion in Beverly Hills. Their father, Jose, was shot in the head from point-blank range and their
mother, Kitty, was shot multiple times while she attempted to escape. The prosecutor claimed that
the young men committed the murders in order to inherit their parents’ 14 million dollar estate. The
brothers admitted to killing their parents, but maintained that their actions were the result of years
of abuse. Eventually, the brothers were convicted of two counts each of first-degree murder and
conspiracy to commit murder and sentenced to life in prison without parole. Because they were
convicted of killing their parents the brothers will not be able to inherit their parents’ estate. The law
provides barriers to the child being able to inherit from his or her parent. In essence, the child is
disinherited by the operation of law. A main barrier to inheritance is a slayer statute. The typical
slayer statute provides that a person, including a child, who intentionally kills another person cannot
inherit from that person’s estate. The purpose of the slayer statute is to prevent a person from
benefitting from his or her criminal act. The following is an example of a typical slayer statute.
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West’s Alaska Statutes Annotated § 13.12.803. Effect of homicide on intestate succession,
wills, trusts, joint assets, life insurance, and beneficiary designations
(a) An individual who feloniously kills the decedent forfeits all benefits under this chapter
with respect to the decedent’s estate, including an intestate share, an elective share, an
omitted spouse’s or child’s share, a homestead allowance, exempt property, and a family
allowance. If the decedent died intestate, the decedent’s intestate estate passes as if the
killer disclaimed the killer’s intestate share.
8.5.1

Application of the Slayer Statute

A person is classified as a slayer if the person participates in the willful and unlawful killing
of another person. The person’s participation can consist of his or her actually killing the person or
acting as an accessory before or after the fact. In most jurisdictions, the killing must be intentional or
reckless. However, the Alaska legislature decided to make its slayer statute applicable to intentional
and unintentional killings.
8.5.1.1 Slayer Is Legally Disinherited

In the Matter of the Estate of Blodgett, 147 P.3d 702 (Alaska 2006)
CARPENETI, Justice.
Introduction
After being convicted of the criminally negligent homicide of his father, Robert Blodgett attempted
to obtain the benefits devised to him under his father’s will. Pursuant to Alaska’s “slayer statute,” the
superior court found that Blodgett was not entitled to inherit under the will as a result of his
conviction, and that no manifest injustice resulted from this forfeiture. Blodgett attacks this decision
on statutory and constitutional grounds. Because we agree with the superior court that Blodgett
failed to prove that excluding him from the benefits of his father’s will would result in manifest
injustice, we affirm that court’s rejection of Blodgett’s claims.
Facts and Proceedings
On September 14, 2003 Robert Blodgett caused the death of his father, Richard Blodgett. Blodgett
was indicted for murder in the second degree and in January 2004 he entered a plea of no contest to
criminally negligent homicide. His conviction led to a three-and-one-half-year term of
imprisonment. Blodgett was named in the final will of his father, which left “all properties, bank
accounts, stocks and insurance policies” to his children. In April 2004 Blodgett petitioned the
superior court for a hearing to determine his rights to participate in the probate proceedings under
the Alaska probate code and AS 13.12.803. The other will beneficiaries consented to the hearing,
but, contending that the killing of Richard Blodgett was not “unintentional,” argued that AS
13.12.803 precluded Blodgett from receiving any property under the will.

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After additional briefing and a one-day evidentiary hearing, Superior Court Judge Ben Esch issued a
Memorandum and Order denying Blodgett’s petition and preventing him from obtaining any
benefits under the will. The court explained that under AS 13.12.803 forfeiture was mandatory
unless the slayer proved by a preponderance of the evidence that this would result in manifest
injustice. The court concluded that Blodgett failed to make such a showing. The court considered,
and rejected, possible factors it thought might colorably result in manifest injustice, including past
family relationships and Blodgett’s monetary needs. It found the “great deal of testimony about the
nature of the past relationship” between Blodgett and his father “unhelpful” and irrelevant in
determining “the justice of denying or allowing recovery.” It also concluded that Blodgett retained
sufficient income earning capacity and property holdings that he “would not be beggared if he did
not receive these funds.” While the court made no specific findings as to Blodgett’s culpability in his
father’s death, Blodgett was sentenced to three and one-half years in prison after he pled guilty to
criminally negligent homicide. Blodgett appeals.
Discussion
A. The Superior Court Did Not Abuse Its Discretion In Concluding That Forfeiture of the
Inheritance Would Not Result in Manifest Injustice.
The common law has long followed the policy that “no one should be allowed to profit from his
own wrong.” Accordingly, many state courts exercised their equitable powers and followed this
maxim in construing probate statutes to prevent inheritance by an heir who murdered the decedent.
Over the years most states codified this rule into what became known as the “slayer statutes.” The
original Alaska slayer statute, passed in 1972, applied when the offender “feloniously and intentionally
kills” the decedent. The requirement that the homicide be intentional was taken from the common
law rule and the Uniform Probate Code’s articulation, both of which endorse the policy that a
wrongdoer should not profit from his own wrong.
In 1988 the legislature passed an amendment removing the words “and intentionally” from the
statute. The amended statute on its face applied to homicides covered in AS 11.41.100 to140 that is,
including criminally negligent homicide. The initial intent of the 1988 amendment was to prevent
parents who caused the death of their child— even if unintentionally—from recovering damages
through the child’s estate. This concern followed a case in which a parent failed to act to bring a
child to the hospital (an act of criminal negligence) resulting in the child’s death. During debate on
the bill, one representative suggested that the rule apply to all homicides, not just to those
perpetrated against children. The final draft of the amendment incorporated this suggestion by
simply removing the requirement of intent.
Shortly after this amendment, Alaska Governor Steve Cowper expressed concern that under unusual
circumstances, it might be unjust to prohibit a killer from taking the property of the victim, such as
in the case of an unintentional felonious killing. Accordingly, another amendment was adopted in
1989, creating the manifest injustice exception for unintentional homicides now found in subsection
(k):
In the case of an unintentional felonious killing, a court may set aside the application of [the slayer
statute] if the court makes special findings of fact and conclusions of law that the application of the
subsection would result in a manifest injustice and that the subsection should not be applied.
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The statute also instructs that acquisitions of property not covered by the section “shall be treated in
accordance with the principle that a killer may not profit from the killer’s wrong.” This has remained
the law in Alaska. Thus, the legislature broadened the application of the slayer statute— by
extending it to unintentional killings— and created an escape clause— by enacting the manifest
injustice exception.
Under the current Alaska criminal code, all unjustified forms of killing are deemed felonies. This
includes murder in the first degree, murder in the second degree, manslaughter, and criminally
negligent homicide. Thus, Alaska’s slayer statute encompasses intentional as well as unintentional
homicides.
When compared with the slayer statutes of other jurisdictions, Alaska’s slayer statute emerges as
unique. No other state has a manifest injustice provision for unintentional homicides. But in the
great majority of other states, such a provision would be unnecessary—in these states only
intentional homicides are within the statutes’ reach. Many of these statutes are modeled after the
Uniform Probate Code. Following the common-law slayer rule, the current Uniform Probate Code
slayer statute applies to an “individual who feloniously and intentionally kills the decedent.” The
comments clarify that “this section . . . excludes the accidental manslaughter killing.” The
Restatement (Third) of Property takes a similar position, and its formulation of the law “does not
apply if the killing was reckless, accidental, or negligent.”
As noted, the great majority of state slayer statutes require that the homicide be intentional. A
minority of jurisdictions resemble Alaska in merely requiring the killing to be unlawful, rather than
intentional. But even among this minority of jurisdictions, some would only cover homicides with
culpable mental states as low as “recklessness,” and at least one has followed a judicial opinion
reading an intent requirement into its slayer statute. Thus, when compared to the practices of most
other jurisdictions, Alaska’s slayer statute has a much broader reach that would preclude inheritance
for unintentional killers where other jurisdictions would not.
The legislature tempered the broad reach of AS 13.12.803 by investing trial courts with discretion to
stay its application in those cases where manifest injustice would result. Should inheritance be denied
to the unskilled teenager who drives his car in a criminally negligent manner and accidentally causes
the death of a sole remaining parent? The legislature clearly decided that in such a case there should
be discretion in the court to consider the specific facts of the homicide and, if denial of inheritance
would be manifestly unjust, to permit it. Nor does this power to avoid the rule conflict with the
policy underlying the slayer rule: that a killer should not profit from the killer’s own wrong. Where
the killer’s act was not intentional, and especially where the act was not even reckless, and where
other circumstances mitigate the crime, the application of this principle may lead to unduly harsh
results. Indeed, the unintended killing of a loved one, as in the example above, would likely cause the
inadvertent killer far greater personal ruin than monetary gain. In this case, Blodgett was convicted
of criminally negligent homicide after a plea of no contest. This conviction conclusively established a
felonious killing under the slayer statute. Because a criminally negligent homicide is an unintentional
homicide, under subsection (k) Blodgett is entitled to avoid the effects of the slayer statute if he
proves by a preponderance of the evidence that applying the statute to him will result in manifest
injustice.
We have not had occasion to define the phrase “manifest injustice” as used in the slayer statute, or
to set out the relevant factors that a trial judge should consider when ruling on this question.
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Similarly, 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
interpreted this phrase in another, similar context. In criminal presumptive sentencing, the legislature
enacted a “safety valve” provision that permits review of a sentence by a special three-judge panel
upon a showing of manifest injustice. In Smith v. State, the court of appeals equated manifest
injustice with that which is “plainly unfair.” Later, in Beltz v. State the court of appeals held that a
presumptive term cannot be manifestly unjust “in general” but only “as applied to a particular
defendant.” Before finding manifest injustice, the court held that the “judge must articulate specific
circumstances that make the defendant significantly different from a typical offender within that
category or that make the defendant’s conduct significantly different from a typical offense.” We
adopt Beltz’s approach for the purpose of applying subsection (k) of Alaska’s slayer statute.
Thus, the relevant comparison here is between Blodgett’s conduct and that of a typical offender
convicted of negligent homicide. In the criminal proceedings, Blodgett was sentenced to three and
one-half years in prison. This sentence approaches the presumptive term for second felony offenses,
suggesting that the superior court did not believe Blodgett’s acts fell at the lowest level of culpability
for a negligent homicide. Given the length of the sentence, we are reassured that the court below
considered Blodgett’s conduct in relation to other similarly situated defendants when it rejected
Blodgett’s claim of manifest injustice.
Blodgett attempted to prove that enforcement of the slayer statute would result in manifest injustice
by introducing evidence regarding (1) past family relationships, and (2) possible impecunity if denied
the benefits of inheritance. The court found that Blodgett failed to meet his burden of proving, by a
preponderance of the evidence, extraordinary circumstances that would have made it manifestly
unjust to exclude him from his father’s will. We agree.
The court described the evidence regarding family relationships as “unhelpful.” While the court’s
statement that the “nature and quality of the relationship between these parties during life seem
unrelated to the fairness of allowing the killer to benefit after the decedent’s death” may be a narrow
interpretation of the relevance of past relationships generally, we do not believe it was an abuse of
discretion under the circumstances of this case. Witnesses testified that Blodgett and his father
shared a relationship of “tough love,” a “good relationship” marked with occasional “squabblings”
typical of father-son relationships. Such testimony neither proves nor refutes the fairness of
forfeiting Blodgett’s inheritance. The court did not abuse its discretion in deciding that Blodgett
failed to prove manifest injustice on this ground.
The court also examined Blodgett’s argument that “it would be unjust to deny benefits under the
will to someone who is physically disabled, who faces unknowable future medical expenses, who has
a compromised earning capacity and has ongoing psychological needs.” The superior court noted
that, although Blodgett suffered some medical disabilities, Blodgett’s own witness testified that he
“is adept at the operation of heavy equipment and has skills as a mechanic.” The court found that
these skills could lead to employment with yearly compensation ranging between $40,000 and
$50,000 per year. It also found that Blodgett owns other property and that future medical expenses
will likely be met through the Alaska Native Health Service. In light of this testimony, the court
concluded that Blodgett “would not be beggared if he did not receive these funds.” Consequently,
the court found that Blodgett failed to prove manifest injustice based on monetary need.

392

While we believe the court did not abuse its discretion in making this determination, we are
concerned that the court’s analysis could lead to the conclusion that a showing of manifest injustice
may turn on predictions concerning the future financial health of the petitioner. Such an approach
would allow slayers of their decedents to inherit if they are poor, but not if they are financially
solvent. We doubt that this distinction— between different slayers based on their personal wealth—
reflects the legislature’s purpose in enacting the manifest injustice provision.
Despite these concerns, we conclude that the superior court did not abuse its discretion in finding
that Blodgett failed to prove manifest injustice by a preponderance of the evidence.
Conclusion
Because the superior court did not abuse its discretion in concluding that manifest injustice would
not result from application of the slayer statute, we affirm the decision of the superior court.
8.5.1.2 Slayer’s Descendant May Not Be Legally Disinherited

In the Matter of the Estate of Van Der Veen, 935 P.2d 1042 (Kan. 1997)
ALLEGRUCCI, Justice:
This is an appeal from the decision of the district court denying one-half of the estate of Morris and
Deanne Van Der Veen to their biological grandchild, D.B.B. Decedents’ son, Kent Van Der Veen,
was disqualified under K.S.A.1996 Supp. 59-513 (slayer statute) from inheriting any portion of their
estate. The case was transferred from the Court of Appeals to this court pursuant to K.S.A. 203018(c).
The facts are not in dispute. The matter was decided by the district court on the following stipulated
facts: The decedents, Morris and Deanne Van Der Veen, were the parents of Kent. On or about
April 30, 1993, Kent murdered his parents. Kent was 19 years old at the time. Two years earlier,
Kent fathered a child, who had been legally adopted by unknown persons prior to April 30, 1993.
The decedents never were aware of the existence of the minor child.
Laura Ann Van Der Veen is the decedents’ daughter. Decedents had no other heirs, devisees, or
legatees. At the time Kent killed his parents, he had no testamentary instrument of his own.
The 1989 joint will of Morris and Deanne Van Der Veen provides for the following distribution of
assets that remain after their debts and obligations are satisfied:
“Upon the death of the survivor of us, each of us hereby gives, devises, and bequeaths all of
the rest, residue, and remainder of our property of every kind, character, and description,
and wherever located, unto our children, Laura Ann Van Der Veen and Kent Phillip Van
Der Veen, equally and per stirpes.”
In their will, the Van Der Veens bequeathed one-half of their estate to each of their children, Laura
and Kent. It is agreed that Kent is statutorily disqualified from inheriting property from his parents.
At all pertinent times, it has been provided by statute:
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“No person convicted of feloniously killing, or procuring the killing of, another
person shall inherit or take by will[,] by intestate succession, as a surviving joint
tenant, as a beneficiary under a trust or otherwise from such other person any
portion of the estate or property in which the decedent had an interest.” K.S.A. 1996
Supp. 59-513.
This appeal challenges the district court’s determination that the statute prevails over the express
terms of the Van Der Veens’ will, resulting in D.B.B.’s being disinherited. The argument made on
behalf of D.B.B. by her guardian ad litem is that the language of her grandparents’ bequest to their
children, “equally and per stirpes,” must be construed to give what would have been Kent’s share, if
he had not been disqualified, to his heir, D.B.B. D.B.B.’s guardian ad litem further argues that
D.B.B.’s adoptive status is irrelevant because K.S.A. 59-2118(b) provides that “[a]n adoption shall
not terminate the right of the child to inherit . . . through the birth parent.”
Appellee Laura Van Der Veen counters that the language of 59-2118(b), on which D.B.B. relies, was
added in 1993 and became effective after the Van Der Veens’ deaths. If the effective date of the
amendment does not prevent it from applying in the present case, appellee further argues, the
statute should be construed to restrict inheritance “through the birth parent” to instances where the
birth parent has died. In other words, it should be interpreted so as to exclude inheritance through a
birth parent who is alive but disqualified. In appellee’s words, the statute should be interpreted so
that the disqualified killer is treated as if he never existed rather than as if he had died.
We consider whether Kent’s being barred from inheriting from his parents prevents the inheritance
from passing through him to his child. This was the basis for the trial court’s decision and has not
been decided by the appellate courts of this state. The question has arisen in other jurisdictions,
however, and has been pondered by commentators, scholars, and the National Conference of
Commissioners on Uniform State Laws.
In In re Estate of Benson, 548 So.2d 775 (Fla.App.1989), a murderer’s minor children were allowed to
inherit his share of intestate and testate estates. Margaret Benson, the deceased testator, was the
mother of Carol Benson Kendall, Steven Benson, and Scott Benson. Steven had minor children;
Scott had no heirs. Steven killed Margaret and Scott. Margaret’s will devised her property to her
three children in equal shares and per stirpes. Scott died intestate. An intestacy section of Florida’s
probate code provides that the property of a decedent such as Scott, without parents or lineal
descendants, passes to the decedent’s siblings and the descendants of deceased siblings. Florida’s
“slayer statute” provides that “the estate of the decedent passes as if the killer had predeceased the
decedent.” 548 So.2d at 777. The trial judge applied Florida’s anti-lapse statute in concluding that
Steven’s minor children inherited through him. The District Court of Appeals reached the same
conclusion for somewhat different reasons:
“It would have been the correct result in any event, i.e., whether the express
provisions of the will were utilized or whether the Anti-Lapse Statute was used.
Margaret Benson’s will devised her property to her children ‘per stirpes.’
Even though the drafter of the will testified in the murder trial that she intended a
class gift to her children, since a class gift is not expressly provided by the terms of
the will even if the term ‘per stirpes’ had been omitted from the will, section 732.611,
Florida Statutes (1985), would have applied to make the devises and bequests ‘per
394

stirpes.’ Further, even if Margaret Benson’s will had provided for a class gift to her
three children, the Anti-Lapse Statute would have substituted Steven Benson’s minor
children in his place as a devisee under the will in the absence of a contrary intent
expressed in the will.” 548 So.2d at 778.
At the time Benson was being considered by the Florida District Court of Appeals, the pertinent
section of the Uniform Probate Code (UPC) was worded like the Florida statute. Unif. Probate
Code 2-803(a), 8 U.L.A. 172 (1983) provided that a surviving heir or devisee who intentionally and
feloniously killed the decedent “is not entitled to any benefits under the will or under this Article,
and the estate of decedent passes as if the killer had predeceased the decedent.” Although the
section was “substantially revised” in 1993, “the main thrust of the pre-1990 version” was not
altered. Unif. Probate Code 2-803, Comment, 8 U.L.A. 200 (1996 Supp.). Subsections (b), (c), and
(e) of the current version of 2-803 provide that a decedent’s estate, intestate or under a will, passes
as if the killer disclaimed his or her share. The effect of disclaimer, as established in Unif. Probate
Code 2-801(d), 8 U.L.A. 196 (1996 Supp.) is as follows:
“If property or an interest therein devolves to a disclaimant under a testamentary
instrument . . . or under the laws of intestacy . . . the disclaimed interest devolves as
if the disclaimant had predeceased the decedent, but if by law or under the
testamentary instrument the descendants of the disclaimant would share in the
disclaimed interest by representation or otherwise were the disclaimant to predecease
the decedent, then the disclaimed interest passes by representation, or passes as
directed by the governing instrument, to the descendants of the disclaimant who
survive[s] the decedent.”
The Kansas statute that sets out the effect of disclaimer is K.S.A. 59-2293(a). It provides generally
that disclaimed property shall descend or be distributed as if the disclaimant had predeceased the
decedent.
With regard to the UPC, the Tennessee Court of Appeals, in Carter v. Hutchison, 707 S.W.2d 533, 537
n. 10 (Tenn.App.1985), noted:
“A vast majority of states enacting the forfeiture statutes have patterned them after
the model statute proposed by Dean Wade in 1936, see J. Wade, [Acquisition of
Property by Willfully Killing Another—A Statutory Solution, 49 Harv. L.Rev. 715, 753–55
(1936) ], or the Uniform Probate Code. Thus, in twenty-nine states there is a
statutory presumption that the victim’s property passes to his estate as if the slayer
had predeceased the decedent. See Uniform Probate Code §2-803 (1983) and J.
Wade, supra n. 5 at 753 Section 4. Four states provide for forfeiture but are silent as
to distribution. Tennessee is among ten states that provide for forfeiture and for
distribution to the decedent’s heirs through the laws of intestate succession. The
eight remaining states without statutes have forfeiture provisions by court decision.
See generally Maki & Kaplan, [Elmer’s Case Revisited: The Problem of the Murdering Heir,
41 Ohio St. L.J. 905, 957 (1980).”
See W. McGovern, Homicide and Succession to Property, 68 Mich. L.Rev. 65, 66–67 (1969). It appears that
Kansas is one of the few states that does not expressly provide for distribution of the forfeited
share.
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Turning to the present case, it is clear that under either version of the UPC, appellee would take
one-half of the estate of her parents. The other half would be taken by her disqualified brother’s
minor child.
The Van Der Veens intended for their daughter to take one-half of their estate. Their knowledge of
Kent’s troubled nature is reflected in a provision of the Van Der Veens’ will that nominates Laura to
serve as Kent’s guardian and conservator. Nonetheless, they bequeathed one-half of their estate to
him. There is nothing in the instrument from which the court could conclude that the Van Der
Veens intended for Laura to receive the entire estate in the event of Kent’s incapacity or
disqualification. By extension, it may reasonably be inferred that they would not have intended for
Kent’s innocent child to be disqualified in order for Laura to receive the entire estate.
Appellee invites the court to speculate that the Van Der Veens would not have intended for their
unknown, illegitimate grandchild to share in their estate. We decline the invitation and note there is
no factual support in the record for such a speculation.
The judgment of the district court is reversed.
8.5.2

Exceptions

Some acts that result in the death of a person may be exempt from the application of the
slayer statute.
8.5.2.1 Assisted Suicide82

In re the Estate of Schunk, 760 N.W.2d 446 (Wis. 2008)
VERGERONT, J.
The issue on appeal in this probate action is the proper construction of WIS. STAT. § 854.14 (2003–
04), which prevents a person who “unlawful[ly] and intentional[ly] kill[s]” another from benefiting
under the decedent’s will and other instruments. We agree with the circuit court that “unlawful and
intentional killing” within the meaning of this statute does not include assisting another to commit
suicide. We therefore affirm.
Background
Edward Schunk died from a self-inflicted shotgun wound. At the time of his death he was terminally
ill with non-Hodgkin’s lymphoma. He lived with his wife, Linda, and their daughter, Megan. Edward
had six older children who are not Linda’s children. Edward left a will that is the subject of dispute
in another action, but for purposes of this action the important point is that Linda and Megan, along
with others, are beneficiaries under Edward’s will.

82

Jeffrey G. Sherman, Mercy Killing and the Right to Inherit, 61 U. Cin. L. Rev. 803 (1993).

396

This action began with a petition for informal administration of Edward’s estate. One of Edward’s
older daughters filed a demand for formal proceedings on the issue of whether Linda and Megan
had unlawfully and intentionally killed Edward and were thus barred from inheriting under his will
pursuant to WIS. STAT. § 854.14. Her position and that of four of her siblings, who joined with her
in the proceeding (the objectors), is that Linda and Megan assisted Edward in committing suicide.
Linda and Megan filed a motion for summary judgment on this issue. They denied that they assisted
Edward in committing suicide but contended that, even if that were true, WIS. STAT. § 854.14 does
not bar them from inheriting under Edward’s will. The objectors opposed the motion because in
their view the statute applies to assisted suicide, and they contended they were entitled to a trial to
establish that Linda and Megan did assist in Edward’s suicide.
The factual submissions show that Edward was hospitalized several days before his death.
According 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 “one more time.” Linda and Megan brought him home. There
are factual disputes over Edward’s mental and physical condition on that day and what occurred
after he arrived home. Viewed most favorably to the objectors, the evidence shows that Linda and
Megan knew that Edward wanted to commit suicide and brought him home so that he could do so.
They drove him to a cabin on their property, helped him inside, gave him a loaded shotgun, and left.
Viewed most favorably to Linda and Megan, the evidence shows that Edward drove himself to the
cabin, taking his gun and hunting bag, and they did not know that he intended to commit suicide. It
is undisputed that Edward’s son and grandson found him later that day in the cabin, dead from a
single gunshot wound to the chest.
The circuit court concluded that, assuming the objectors’ view of the evidence was correct for
purposes of the motion, Linda’s and Megan’s conduct in assisting Edward in committing suicide did
not come within the statutory language of “unlawful and intentional killing.” WIS. STAT. §854.14.
The court therefore granted summary judgment in favor of Linda and Megan.
Discussion
On appeal the objectors contend the circuit court erred in its construction of WIS. STAT. § 854.14
and therefore erred in granting summary judgment.
When we review summary judgment we employ the same methodology as the circuit court and our
review is de novo. Green Spring Farms v. Kersten, 136 Wis.2d 304, 314–16, 401 N.W.2d 816 (1987). A
party is entitled to summary judgment if there are no genuine issues of material fact and that party is
entitled to judgment as a matter of law. WIS. STAT. § 802.08(2). In assessing the factual
submissions, we view them most favorably to the opposing party and draw all reasonable inferences
in favor of that party. Burbank Grease Servs. v. Sokolowski, 2006 WI 103, 294 Wis.2d 274, 717N.W.2d
781.
The parties here agree that, for purposes of our review, we, like the circuit court, are to accept the
view of the evidence advanced by the objectors— that Linda and Megan assisted Edward in
committing suicide. The issue is whether, given these facts, WIS. STAT. §854.14 bars Linda and
Megan from inheriting under Edward’s will.

397

When we construe a statute we begin with the language of the statute and give it its common,
ordinary, and accepted meaning, except that technical or specially defined words are given their
technical or special definitions. State ex rel. Kalal v. Circuit Court, 2004 WI 58, 271 Wis.2d 633, 681
N.W.2d 110. We may use a dictionary to establish the common meaning of a word. Swatek v. County
of Dane, 192 Wis.2d 47, 61, 531 N.W.2d 45 (1995). We interpret statutory language in the context in
which it is used, not in isolation but as part of a whole, in relation to the language of surrounding or
closely related statutes, and we interpret it reasonably to avoid absurd or unreasonable results. Kalal,
271 Wis.2d 633, 681 N.W.2d 110. We also consider the scope, context, and purpose of the statute
insofar as they are ascertainable from the text and structure of the statute itself. Id. If, employing
these principles, we conclude the statutory language has a plain meaning, then we apply the statute
according to that plain meaning. Id.
WISCONSIN STAT. § 854.14 (2003–04) provides in relevant part:
(2) Revocation of benefits. Except as provided in sub. (6), the unlawful and intentional
killing of the decedent does all of the following:
(a) Revokes a provision in a governing instrument that, by reason of the decedent’s death,
does any of the following:
1. Transfers or appoints property to the killer
.....
(3) Effect of revocation. Except as provided in sub. (6), provisions of a governing
instrument that are revoked by this section are given effect as if the killer disclaimed all
revoked provisions. . . .
....
(6) Exceptions. This section does not apply if any of the following applies:
(a) The court finds that, under the factual situation created by the killing, the
decedent’s wishes would best be carried out by means of another disposition
of the property.
(b) The decedent provided in his or her will, by specific reference to this section,
that this section does not apply.
The key phrase for purposes of this appeal is “unlawful and intentional killing of the decedent.”
WIS. STAT. § 854.14(2). The objectors contend that this plainly includes assisting the decedent to
commit suicide. We disagree and conclude the phrase plainly does not include this conduct.
In the dictionary the objectors refer us to, the first definition of the verb “kill” is “to deprive of life.”
Webster’s Ninth New Collegiate Dictionary 661 (1989). “To commit suicide” is defined as “to put
(oneself) to death: kill.” Id. at 1180. A person who assists another in voluntarily and intentionally
taking his or her own life is plainly not depriving the other of life. As the assumed facts in this case
illustrate, providing Edward with a loaded shotgun did not deprive him of his life: he deprived
himself of life by shooting himself with the shotgun. “Killing” is not commonly used to describe
assisting another to commit suicide, just as “killer” is not commonly used to describe the person
who assists another to kill himself or herself.
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The objectors argue that because Linda and Megan provided the means with which Edward killed
himself, they were the agents of his death and thus “killers” within the meaning of the statute. We
do not agree that “killer” is commonly understood to mean the person who provides the means that
enable another to kill himself or herself.
The objectors point out that WIS. STAT. § 940.12 makes it a felony to “with intent that another
take his or her own life assist[ ] such person to commit suicide. . . .” Thus, they assert, Linda and
Megan acted unlawfully and the facts show they intended to help Edward commit suicide. However,
“unlawful” and “intentional” modify “killing” by limiting its meaning. If, as we have concluded,
assisting another to commit suicide is not “killing” another, it does not become so because the
conduct is unlawful and intentional.
The objectors also argue that the exception in WIS. STAT. § 854.14(6)(b) shows that the legislature
intended “unlawful and intentional killing” to include assisting another to commit suicide. This
paragraph provides that § 854.14 does not apply if “[t]he decedent provided in his or her will, by
specific reference to this section, that this section does not apply.” According to the objectors, the
only reasonable meaning of this exception is that it refers to assisted suicide, because the legislature
could not logically have intended to permit a testator to expressly allow another to inherit under the
will if that person committed “intentional homicide.”
We conclude WIS. STAT. § 854.14(6)(b) does not alter the plain meaning of “unlawful and
intentional killing.” This paragraph plainly expresses the legislature’s intent to allow a testator to
dispose of his or her property as the testator wishes notwithstanding the fact that an intended
beneficiary has unlawfully and intentionally deprived the testator of his or her life. It may be unlikely
a testator would choose to do so, but we cannot say it is illogical or absurd to think a testator would
ever do so. A testator might, for example, contemplate that an intended beneficiary might kill the
testator in an act of euthanasia— “the act . . . of killing . . . hopelessly sick . . . individuals . . . for
reasons of mercy,” Webster’s Ninth New Collegiate Dictionary 429 (1989); and the testator might
want this to happen. There may be other circumstances that would reasonably come within the
exception in para. (6)(b), but we need not define its parameters to resolve this appeal. The point here
is simply that there are ways to reasonably construe the exception that are consistent with the
common meaning of the verb “kill.”
Conclusion
We conclude the circuit court properly construed “unlawful and intentional killing” in WIS. STAT. §
854.14 not to include assisting another to commit suicide. We therefore affirm.
Judgment affirmed.

399

8.5.2.2 Mentally Incompetent Slayer83

Estate of Armstrong v. Armstrong, 170 So.3d 510 (Miss. 2015)
RANDOLPH, Presiding Justice, for the Court:
This is a case of first impression regarding the interpretation of Mississippi Code Section 91-5-33,
known as the “Slayer Statute,” which states that anyone who “wilfully cause[s] or procure[s]” the
death of another shall not inherit from his or her victim. John R. Armstrong, a severely mentally ill
man, killed Joan Armstrong, his eighty-year-old mother. This fact is not disputed by any party. The
Circuit Court of Jackson County determined that John was not competent to stand trial for the
murder of Joan, and John was committed to the state hospital at Whitfield, where he resides today.
Based on the Slayer Statute, John’s four siblings requested that the devise to John in their mother’s
will be declared void. The chancellor granted their motion, and John, through his court-appointed
guardian ad litem, appeals the ruling. Finding that a hearing to determine John’s mental status at the
time of the murder is necessary prior to granting the motion, we reverse and remand for a hearing
consistent with this opinion.
STATEMENT OF FACTS AND PROCEEDINGS BELOW
On August 7, 2010, Joan Armstrong was contacted by several of her son’s neighbors, who were
worried about their children’s safety, after they noticed John acting erratically. John had a long
history of serious mental illness, having been treated since 1989. Joan picked up John at his
apartment and brought him back to her condominium. Joan had invited some of her friends to
come over to the condominium swimming pool. Worried that his mother was leaving him, John
went upstairs and retrieved a crochet-covered brick, which he used to hit Joan repeatedly over the
head. He then moved her body to the bathroom and repeatedly stabbed her. He informed law
enforcement officers from the Ocean Springs Police Department (OSPD) that he was preparing her
body to be buried by bleeding her.
Joan’s death certificate listed her cause of death as “contusion of brain with subdural and
subarachnoid hemorrhage [due to] multiple blunt force injuries of head.” Joan also sustained
multiple stab wounds and rib fractures. Joan’s death was listed as a homicide due to the multiple
strikes to her head.
John 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’s murder.
The circuit court ordered that John receive a mental evaluation and treatment from the state hospital
at Whitfield, to determine if he was competent to stand trial. Dr. Reb McMichael, Chief of Forensic
Services at the Mississippi State Hospital, opined that John was not competent to stand trial. The
circuit court then committed John to Whitfield, ordering that he remain at that facility until he was
declared competent to stand trial. John continues to undergo treatment at Whitfield.

Laurel Sevier, Kooky Collects: How the Conflict Between Law and Psychiatry Grants Inheritance Rights to California’s Mentally Ill
Slayers, 47 Santa Clara L. Rev. 379 (2007).
83

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Terry L. Armstrong, John’s brother, filed a petition in the Chancery Court of Jackson County,
Mississippi, to probate Joan’s will. The will appointed Terry as executor. Joan left her estate equally
to her five children. The petition listed the following children as Joan’s sole heirs-at-law: Terry L.
Armstrong, David Armstrong, Jill Seiler, Gail Jones, and John Armstrong. Joan’s will was admitted
to probate, and letters testamentary were granted to Terry, as executor. The chancellor also entered
an order establishing Joan’s heirs-at-law as Terry Armstrong, David Armstrong, Jill Seiler, Gail
Jones, and John Armstrong.
Once the heirs-at-law were determined, Terry filed a Motion to Declare Devise Void as to John,
based on the Slayer Statute. Terry requested that this motion not be heard until the pending criminal
charges against John were finally resolved. Due to John’s mental illness, Terry requested that a
guardian ad litem be appointed. Terry also filed a Motion for Partial Distribution, acknowledging that
significant time might pass before John’s guilt was determined. Therefore, the assets of Joan’s estate,
exclusive of the portion assigned to John, should be distributed to the other four children. The
chancellor entered an order distributing eighty percent of Joan’s residuary estate equally to four of
Joan’s children and placing John’s twenty percent in a supplemental needs trust.
Stacie E. Zorn was appointed to represent John as his guardian ad litem. In response to the motion to
declare the devise to John void, John argued that Terry had failed to prove he willfully or feloniously
caused the death of Joan; the matter was not ripe for hearing because there had been no adjudication
of his guilt in the criminal matter; and that, due to his mental incapacity, he lacked the requisite
intent to commit a willful act; therefore, the Slayer Statute was not applicable.
After the chancellor heard arguments on the motion, she entered an order declaring the devise to
John void. The chancellor recognized that this was a case of first impression, as there had been no
decision addressing whether a person determined to be mentally incompetent to stand trial could be
considered to have “wilfully” caused the death of another. The chancellor determined that the
meaning of “wilfully” should be interpreted within the civil context, and not the criminal context.
The chancellor found the following evidence to be proof of John’s willfulness in Joan’s killing:
1. John was discovered at Joan’s home with Joan’s body by law enforcement. John was covered
in Joan’s blood.
2. In the immediate aftermath of the homicide, John confessed to law enforcement. This
confession was witnessed by John’s sister-in-law who offered testimony at this motion hearing.
3. OSPD, at the conclusion of their investigation, issued a Complaint alleging John,
“feloniously, willfully and unlawfully with deliberate design” caused the death of Joan.
4. A Jackson County Grand Jury returned an indictment against John for the willful and
felonious murder of Joan.
Based on the above evidence, the chancellor held that John willfully caused the death of his mother
and could not benefit from her estate pursuant to the Slayer Statute. The chancellor stated that:
[t]his is the type of behavior our Slayer Statute contemplates. Further, while it is
acceptable under our justice system to allow a killer to escape criminal liability
due to his mental illness, it would be a perversion of justice to allow him to
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benefit from it in this instance, especially in a court of equity.
John timely filed notice of his appeal. The chancellor ordered that the portion of the estate set aside
for John would remain in the registry of the court or other trust account pending the outcome of
this appeal.
STATEMENT OF THE ISSUES
John presents the following three issues:
I. Whether the Chancery Court was precluded from ruling upon the Executor’s Motion to
Declare Devise Void under the Mississippi slayer statute, Mississippi Code Annotated § 91-5-33,
when there has been no outcome in John’s criminal proceedings due to his mental incapacity to
stand trial at this time.
II. Whether an individual charged with murder but not tried due to mental incapacity may be
precluded from inheriting under the Mississippi slayer statutes, Mississippi Code Annotated §§
91-1-25 and 91-5-33.
III. Whether the Executor presented sufficient evidence to prove that the killing of Joan
Armstrong was intentional on the part of John Armstrong.
ANALYSIS
Findings of a chancellor will not be disturbed on review unless the chancellor was “manifestly
wrong, clearly erroneous, or applied the wrong legal standard.” Bluewater Logistics, LLC v. Williford, 55
So. 3d 148, 166 (Miss. 2011)(quoting Powell v. Campbell, 912 So. 2d 978, 981 (Miss. 2005)). The Court
will review a chancellor’s judgment for abuse of discretion. Hotboxxx, LLC v. City of Gulfport, 154 So.
3d 21, 24 (Miss. 2015)(citing Mississippi Power Co. v. Hanson, 905 So. 2d 547, 549 (Miss. 2005); McNeil
v. Hester, 753 So.2d 1057, 1063 (Miss. 2000). For questions of law, the Court will apply the de novo
standard of review. Hotboxxx, 154 So.3d at 24.
When called upon to examine a statute, “the Court first looks to the language of the statute.” Lawson
v. Honeywell Intern, Inc., 75 So. 3d 1024, 1027 (Miss. 2011) (citing Pinkton v. State, 481 So.2d 306, 309
(Miss. 1985)). “If the words of a statute are clear and unambiguous, the Court applies the plain
meaning of the statute and refrains from using principles of statutory construction.” Id. (citing Clark
v. State ex rel. Miss. State Med. Ass’n 381 So.2d 1046, 1048 (Miss. 1980)). Section 91-5-33 of the
Mississippi Code reads in pertinent part:
If any person shall wilfully cause or procure the death of another in any manner,
he shall not take the property, or any part thereof, real or personal, of such other
under any will, testament, or codicil. Any devise to such person shall be void and,
as to the property so devised, the decedent shall be deemed to have died
intestate.
Miss. Code Ann. § 91-5-33 (Rev.2013) (emphasis added).
The key word in this statute is “wilfully.” In the criminal context, this Court has addressed the
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meaning of “wilfully,” finding that it is synonymous with “knowingly” and “intentionally.”
The Court has held that terms “willfully” and “knowingly” have substantially the same meaning in
criminal statutes. Ousley [v. State], [154 Miss. 451,] 122 So. [731,] 732 (1929) ] (indictment was
sufficient even though it used the words “willfully, unlawfully[,] and feloniously” rather than
“knowingly” as used in the statute). See also Boyd v. State, 977 So.2d 329, 335 (§ 22) (Miss. 2008)(“An
act ‘willfully’ done is an act ‘knowingly’ and ‘intentionally’ done.”); Moore v. State, 676 So. 2d 244, 246
(Miss. 1996) (“willfully” has the same meaning as “knowingly”). Relying on Ousley, the Court of
Appeals held that the terms “wilfully and feloniously” had substantially the same meaning as
“purposely or knowingly” when ruling on the sufficiency of a jury instruction for aggravated assault
Davis v. State, 909 So.2d 749, 752-53 (§ 13) (Miss. Ct. App. 2005). State v. Hawkins, 145 So. 3d 636,
641 (Miss. 2014). In Ousley, this Court held that “[a] willful act is one that is done knowingly and
purposely with the direct object in view of injuring another.” Ousley, 122 So. At 732 (quoting Hazle
v. So. Pac. Co., 173 F. 431 (C.C.D. Or. 1909)).
Additionally, the Model Penal Code reads that “[a] requirement that an offense be committed
wilfully is satisfied if a person acts knowingly with respect to the material elements of the offense,
unless a purpose to impose further requirements appears.” Model Penal Code § 2.02(8) (1962). A
person acts “knowingly” with respect to a material element of an offense “if the element involves
the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that
nature or that such circumstances exist” and “if the element involves a result of his conduct, he is
aware that it is practically certain that his conduct will cause such a result.” Model Penal Code §
2.02(2)(b)(i)-(ii) (1962).
However, Section 91-5-33 is a civil statute. The usual meaning of “willful” in tort law is that an
“actor has intentionally done an act of an unreasonable character in disregard of a risk known to him
or so obvious that he must be taken to have been aware of it, and so great as to make it highly
probable that harm would follow.” W. Prosser, Handbook of the Law of Torts § 34 (1971).
This Court has held that a person who willfully causes the death of another is barred from
participating in the victim’s estate. Genna v. Harrington, 254 So.2d 525, 527 (Miss. 1971).
“Mississippi’s Slayer Statute is strictly construed and narrow in purpose.” In re Estate of Miller, 849 So.
2d 703, 706 (Miss. 2003). “The sole purpose of a ‘slayer statute’ is to prevent the slayer from
benefitting from the death of the victim or profiting from the wrongdoing.” Id. (quoting 26B C.J.S.
Descent and Distribution § 57, at 362-63 (2001)).
Mississippi courts have not addressed whether the Slayer Statute precludes insane persons from
inheriting from their victims. Some cases have discussed manslaughter pleas, which are beneficial to
this analysis. In Henry v. Toney, 211 Miss. 93, 50 So.2d 921 (951), the Court was presented with the
issue of whether John Henry willfully caused the death of his wife, such that he could not inherit her
land. Henry was charged with second-degree murder but pleaded guilty to manslaughter. Id. at 922.
The Court noted that, under Mississippi statutes, manslaughter is not necessarily a willful killing. Id.
at 923. “For that reason, it is obvious that such plea cannot be conclusive evidence of guilt of such a
killing. On the contrary, it can amount to only slight evidence, or evidence merely that the killing has
occurred.” Id. The Court reversed the finding of the trial court that Henry could not inherit his
wife’s property and remanded the case for a new trial, instructing the trial court that “all evidence
which will throw any light on the issue of whether or not this killing was willful is competent and
admissible.” Id.
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In Hood v. Van Devender, 661 So. 2d 198 (Miss. 1995), Linda Van Devender killed her husband. Linda
was charged with murder, pleaded guilty to manslaughter, and received a twenty-year-suspended
sentence. Id. at 201. No further evidence of culpability was offered by her husband’s estate. Id. The
chancellor determined that the estate had failed to show that Linda willfully killed her husband. Id. at
200.
On appeal, the Court considered “whether evidence of a guilty plea to the charge of manslaughter is
sufficient, standing alone, to enable a fact finder to conclude that one is prohibited from inheriting
under our statutes which precluding one who willfully kills another from inheriting from that
person.” Id. at 201. Relying on Franklin Life Insurance Company v. Strickland, 376 F.Supp 280, 283
(N.D. Miss. 1974) (“Although a plea of guilty in a criminal proceeding and conviction thereon are
clearly admissible in evidence, they are ordinarily not conclusive on the pleader and may be
explained or rebutted in a subsequent civil case.”), Henry, 50 So. 2d at 923 (Pleading guilty to
manslaughter is only “slight evidence, or evidence merely that the killing has occurred.”), and
Mississippi manslaughter statutes which do not require willfulness, the Court ruled that Linda was
not prohibited from inheriting from her deceased husband’s estate. Hood, 661 So.2d at 201.
Numerous courts have held that an insane person would not be precluded by a slayer statute from
inheriting from his or her victim, due to their mental condition at the time of the killing. See Estates of
Ladd, 91Cal. App.3d 219, 226, 153 Cal. Rptr. 888 (Ct. App. 1979)(Court held that a mother, who was
insane at the time she murdered her two sons, was not barred from inheriting her two sons’ estates
by statute, which provides that no person who has unlawfully and intentionally caused the death of a
decedent shall be entitled to succeed to any portion of estate or to take under any will of decedent,
because insane persons are not capable of acting “intentionally.”); Hill v. Morris, 85 So.2d 847, 851
(Fla. Sup. Ct. 1956)(“The effect of the judgment of acquittal by reason of insanity was to establish
conclusively that petitioner was not guilty of the public offense with which she was charged, because
as a matter of criminal law she lacked the capacity to commit the crime.” Therefore, the court held
the insane widow was permitted to inherit from her deceased husband.); Turner v. Estate of Turner,
454 N.E. 2d 1247, 1252 (Ind.Ct. App. 1983)(The court ruled that the equitable doctrine which
sought to bar a person from profiting from his wrongful conduct had no application where an
insane person shot and killed his parents.); Ford v. Ford, 307 Md. 105, 122, 512 A.2d 389, 398 (1986)
(The court held that the slayer’s rule was not applicable when the killer was not criminally
responsible at the time he committed the homicide.); In re Vadlamudi Estate, 183 N.J. Super. 342, 443
A.2d 1113 (1982) (An insane slayer was allowed to inherit from her husband’s estate.); In re Wirth’s
Estate, 59 Misc.2d 300, 302-03, 298 N.Y.S.2d 565, 567-68 (Sur. 1969) (Court determined it was not
against the state’s public policy to permit someone who has killed “while insane subsequently to take
a share of the estate of the deceased or the proceeds of a policy of life insurance on the life of the
deceased of which the insane killer is beneficiary.”); In re Lupka’s Estate, 56 Misc.2d 677, 289
N.Y.S.2d 705 (Sue. 1968) (New York court held that a husband could take under his wife’s will
although the wife died from effects of assault by husband, where husband was mentally ill at time of
assault.); Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563, 566 (1975) (Court
prevented slayer statute’s application in cases of involuntary manslaughter, justifiable or excusable
homicide, accidental killing or where the slayer was insane.); Hoffman’s Estate, 39 Pa. D & C. 208,
209-10 (1940)(Wife who killed her husband but found to be insane was entitled to share in her
husband’s estate.); De Zotell v. Mutual Life Ins. Co., 60 S.D. 532, 245 N.W. 58, 65 (1932) (South
Dakota’s slayer’s rule requires that the killer be “sane” for it to apply.); Simon v. Dibble, 380 S.W.2d
898, 899 (Tex. Civ. App. 1964) (A Texas court determined the husband could inherit from the wife
404

he killed because an insane person was not capable of willfully taking the life of another.); In re Estate
of Mahoney, 126 Vt. 31, 220 A.2d 475 (1966)(Court determined slayer statute would not be applicable
if the slayer was insane.).
Other courts have held that the slayer rule is applicable, even if the killer was insane at the time of
the murder. See Dougherty v. Cole, 401 Ill. App.3d 341, 348, 343 Ill. Dec. 16, 934 N.E. 2d 16, 22 (Ill.
App. Ct. 2010) (The court determined that, although an individual was insane for criminal purposes,
he was nevertheless cognizant that he was killing a person; therefore, the Slayer Statute prevented
the killer from benefitting from his actions.); Osman v. Osman, 285 Va. 384, 73 S.E. 2d 876, 879
(2013) (Virginia’s slayer statute provides that in the absence of a conviction for murder or voluntary
manslaughter, “a slayer shall mean any person ‘who is determined, whether before or after his death,
by a court of appropriate jurisdiction by a preponderance of the evidence to have committed
[murder or voluntary manslaughter].’ ” The court determined that the stipulated evidence “clearly
demonstrated that Osman intended to kill his mother; therefore, he should not be allowed to profit
from his wrongdoing.”); In re Estate of Kissinger, 166 Wash. 2d 120, 122, 132, 206 P.3d 665, 666, 671
(2009)(The court held that a not-guilty-by-reason-of-insanity verdict is not a complete defense to the
slayer statute. “An action under the slayer statute is civil, and the determination of whether a slaying
was willful and unlawful must be made in civil court notwithstanding the result of any criminal case.
A finding of not guilty by reason of insanity does not make an otherwise unlawful act lawful.” The
court determined that Hoge’s actions were willful and unlawful when he killed his mother, and Hoge
was barred from recovering from his mother’s estate.).
It is clear from well-established precedent that willful is synonymous with intentionally, knowingly,
deliberately, and purposely. In order for the Slayer Statute to apply to this case, John must have
acted willfully in killing his mother. The record reveals that John has suffered from hallucinations
and delusions for more than two decades. He has been diagnosed as a paranoid schizophrenic.
John’s thoughts are disorganized and very difficult to understand, and he often speaks in “word
salad,” which means that he uses words that are unrelated and disconnected. However, the record is
silent as to John’s mental state at the time of the killing.
In this matter of first impression, this Court concludes that Mississippi should follow the majority of
states and holds that the Slayer Statute requires a finding of willful conduct to preclude a person from
inheriting from his or her victim. Because an insane person lacks the requisite ability willfully to kill
another person, the Slayer Statute is not applicable in cases where the killer is determined to be
insane at the time of the killing.
[T]he words used by Mr. Justice Nelson, when Chief Justice of New York, said that “selfdestruction by a fellow being bereft of reason can with no more propriety be ascribed to the act of
his own hand than to the deadly instrument that may have been used by him for the purpose,”
and “was no more his act, in the sense of the law, than if he had been impelled by irresistible
physical force.”
Great S. Life Ins. Co. v. Campbell, 148 Miss. 173, 114 So. 262, 263-64 (1927) (quoting Manhattan Life
Ins. Co. v. Broughton, 109 U.S. 121, 132, 3 S.Ct. 99, 105, 27 L.Ed. 878 (1883)).
While this result is grounded in legal precedent, it may prove to be unsettling to some. However, it is
not the duty of this Court to determine public policy. If the law as it now exists is in need of change,
that task is for the Legislature.
405

CONCLUSION
Based upon this Court’s holding that the Slayer Statute requires a finding of willful conduct in order
to preclude a person from inheriting from his or her victim, this judgment is reversed and the case is
remanded for a hearing to determine John’s mental status at the time of the murder and whether he
wilfully caused Joan’s death. The Slayer Statute will be applicable only if it is proven that, at the time
of the murder, John’s actions were willful. The chancellor is instructed that “all evidence which will
throw any light on the issue of whether or not this killing was willful is competent and admissible.”
Henry, 50 So. 2d at 923.
Reversed and remanded.
Notes and Questions
1. If a child kills his or her parent, that child cannot inherit from the deceased parent’s estate.
Should this barrier to inheritance be limited to murder? What if a child commits another crime
against the parent like assault or financial exploitation? See Frances H. Foster, Towards a Behavior-Based
Model of Inheritance?: The Chinese Experiment, 32 U.C. Davis L. Rev. 77 (Fall 1998).
2. Should the ability to inherit be linked to the relationship between the parent and the child? If a
child mistreats or neglects a parent, should that child be permitted to inherit from that parent’s
estate?
3. In deciding whether or not a person should be prohibited from inheriting from the person he or
she kills, the court must answer two main questions. First, the court must decide whether the slayer
statute applies to the situation. The slayer statute usually does not apply unless the case involves an
intentional or reckless killing. In some jurisdictions, crimes like assisted suicide are exempted from
the slayer statute. Second, the court must decide whether the child has violated the statute. The
statute has been violated if the child has been convicted of an intentional or reckless killing.
Nonetheless, the child’s acquittal does not preclude the probate court from concluding that the child
has violated the slayer statute. The probate court is not bound by the decision reached in the
criminal court and has the authority to conduct its own hearing to determine whether or not the
persons has violated the statute. In the probate hearing, the standard of proof is preponderance of
the evidence as opposed to the beyond a reasonable doubt standard applied in criminal court. For
instance, O.J. Simpson was acquitted in a criminal court of killing his wife. However, the jury in the
civil court found him liable for the murder. In the slayer context, the child may be acquitted in
criminal court and found liable for the murder in the probate court. A finding of civil liability for the
murder may be sufficient for the probate court to find that the child has violated the slayer statute.
See Mary Louise Fellows, The Slayer Rule: Not Soley A Matter of Equity, 71 Iowa L. Rev. 489 (January
1986); Tara L. Pehush, Maryland is Dying For a Slayer Statute: The Ineffectiveness of the Common Law Slayer
Rule in Maryland, 35 U. Balt. L. Rev. 271 (Winter 2005).
4. What are the arguments for and against slayer statutes? What components should be included in a
slayer statute?

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5. From a public policy perspective, is the Van Der Veen case wrongfully decided? Consider the
following scenario. Madge is a wealthy woman who has one child, Samuel. Samuel and Madge do
not have good relationship. Samuel has one child, Brenda. Brenda is sick and having trouble paying
her medical bills and other living expenses. Samuel asks Madge for money to help Brenda, and
Madge refuses. Samuel kills Madge. As a slayer, Samuel is not permitted to inherit. However, as
Madge’s sole legal heir, Brenda gets to inherit the entire estate. Samuel does not care that he cannot
inherit because his main concern is insuring that Brenda gets the money that she needs. Is there any
way for the legislature to modify the slayer statute to discourage this type of behavior? See Karen J.
Sneddon, Should Cain’s Children Inherit Abel’s Property?: Wading into the Extended Slayer Rule Quagmire, 76
UMKC L. Rev. 101 (Fall, 2007).
Problems
(a) William had a difficult time dealing with his son’s death. William started drinking regularly. He
was arrested for DUI several times, and had the reputation of being the town drunk. On numerous
occasions, William threatened to kill himself.
One night, Fred and his wife, Dana, had dinner with Fred’s parents, Jennifer and William. William
had spent most of the day drinking. William and Jennifer got into a heated argument and William
threatened to kill himself. Fred, a police officer, went to his car and retrieved his service revolver.
When he got back to the house, Fred handed the gun to William and said, “Don’t just talk about it.
Man up and do it.”
Fred and Dana watched in horror as William shot Jennifer in the head. Before, they could stop him
William shot himself in the stomach. William and Jennifer were rushed to the hospital. Jennifer was
pronounced dead on her arrival at the hospital. William died two days later. In their joint will,
William and Jennifer left all of their property to their children, Fred and Betty. The jurisdiction has a
slayer statute. Should Fred be permitted to inherit from his parents? See Anne-Marie Rhodes,
Consequences of Heirs Misconduct: Moving From Rules to Discretion, 33 Ohio N.U. L. Rev. 975 (2007).
(b) Ninety-five year old Anita was suffering from high blood pressure and dementia. Gus, Anita’s
only child, placed Anita in a long-term care facility. Since Anita was independently wealthy, she did
not qualify for government assistance. Therefore, Anita’s monthly long-term care facility fee was
$6,000. Gus was Anita’s sole heir. He was afraid that her stay in the long-term care facility would
deplete all of her resources and prevent him from inheriting any money. Consequently, Gus
removed Anita from the long-term care facility and hired a nurse to care for her at his house. Anita’s
doctors objected to the removal because they felt it was detrimental to Anita’s health. Two months
after she was removed from the long-term care facility, Anita wandered off, fell into a brook and
drowned. The jurisdiction has a slayer statue. Should Gus be permitted to inherit from Anita?
(c) Sixteen-year old Angelina started dating twenty-one year old Todd. Angelina’s parents objected
to the relationship and prohibited Angelina from seeing Todd. One night, Angelina waited in the car
while Todd entered her house and killed both of her parents. Angelina claimed she did not know
that Todd planned to kill her parents. Todd was sentenced to life in prison. In exchange for her
testimony against Todd, Angelina was tried in juvenile court and detained in a juvenile facility until
she turned eighteen. The jurisdiction has a slayer statute. Should Angelina be permitted to inherit

407

from her parents? Mark Adam Silver, Vesting Title in a Murderer: Where is the Equity in the Georgia
Supreme Court’s Interpretation of the Slayer Statute in Levenson?, 45 Ga. L. Rev. 877 (Spring, 2011).
(d) George’s wife died leaving him to raise his ten-year-old son, Pedro. George’s son acted out as a
teenager. George blamed himself for not being around when the boy was young. When Pedro was
fifteen years old, George executed a will leaving his entire estate to Pedro. George included the
following statement in his will. “I only want Pedro to inherit my property. I want him to have it no
matter what. Pedro is my only child. If the state got my property, I would be heart broken.” When
he turned sixteen, Pedro started smoking marijuana and hearing voices telling him that George was
the devil. One night, while George was sleeping, Pedro stabbed him to death. Pedro was George’s
sole living heir. If he does not inherit, the property will escheat to the state. The jurisdiction has a
slayer statute. Should Pedro be permitted to inherit from George?
(e) Leonard hired April to kill his mother. Leonard was convicted of conspiracy to commit murder
and sentenced to twenty-five years in prison. The jurisdiction has a slayer statute that prevents
Leonard from inheriting from his mother. Leonard was required to pay restitution to his siblings.
After Leonard serves his time in prison, is it fair that he should be prohibited from inheriting from
his mother? Why? Why not?

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Chapter Nine: Testamentary Capacity (Mental Competency and Insane
Delusion)
9.1.

Introduction

A probate attorney has two key roles: (1) to execute a will that carries out the testator’s intent
and (2) to create a will that is challenge-proof. Persons seeking to contest the probate of a will
usually take two avenues—they challenge the testator’s capacity to execute the will and/or they
challenge the validity of the execution process. This chapter and Chapter 10 examine the ways in
which the testator’s ability to execute a legally enforceable will may be called into question. The cases
in this chapter deal with the manner in which some defect in the testator may prevent him or her
from being capable of executing a valid will. The cases in chapter 10 focus upon the way that the
actions of other people may interfere with the testator’s ability to execute a valid will. Chapter 11
and Chapter 12 discuss will contests based upon the testator’s failure to follow the execution
process.
According to the law in all states, in order to execute a will, a person must be at least 18
years old and of sound mind. The statutes do not include a definition of what it means for a person
to be “of sound mind.” When evaluating the soundness of a person’s mind, lay persons think in
psychological terms. For example, if a person has been diagnosed with some type of mental illness,
the average person would say that person is not “of sound mind.” However, a mentally ill person
may be legally competent to execute a will.84 The level of mental competence necessary to execute a
will is very low compared to what is required to undertake other legal actions like executing a
contract, obtaining a marriage license or executing a deed to transfer title to a piece of property.85
The attorney who prepares the will and assists in the execution process has a duty to
determine whether or not his or her client is legally “of sound mind.” Most attorneys have not been
trained to make psychological evaluations. Thus, in order to determine if a client has testamentary
capacity, an attorney must rely on the guidelines provided by the courts. In order to be deemed to
have testamentary capacity, at the time that the will is executed, the testator must know the
following: (1) the nature and extent of his or her property; (2) the persons who are the natural
objects of his or her body; (3) the disposition he or she is making; and (4) the manner in which these
facts related so far as to form an orderly plan for the disposition of his or her property. The attorney
should take steps during the initial client interview to determine if his or her client can satisfy the
testamentary capacity test.
Once an attorney concludes that his or her client can satisfy the mental capacity test, that
may not be the end of the story. The client may do or say something to lead the attorney to believe
that the client is suffering from a misconception that could hamper his or her ability to create a will.
The insane delusion test is a two part test. The court first has to decide whether or not the testator
was suffering from an insane delusion when the will was executed. Then, the court has to determine
whether the dispositions the person made were a result of that delusion.86 A delusion is insane even
Matter of Gentry’s Estate, 573 P.2d 322 (Or. App. 1978); Briggs v. Kreutztrager, 433 S.W.3d 355 (Ky. App. 2014).
Denson v. Moses, 2 So. 3d 847 (Ala. App. 2008).
86
Breeden v. Stone, 992 P.2d 1167, 1171 (Colo. 2000).
84
85

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if there is some factual basis for the belief if a reasonable person in the testator’s situation would not
have drawn the conclusion reached by the testator. An insane delusion is different from a mistaken
belief. An insane delusion is a belief not susceptible to correction by presenting the testator with
evidence indicating the falsity of the belief. In this situation, a testator will refuse to believe the
evidence that shows that he or she is wrong.87 Consider this example. T believes that all cats are
black. T’s daughter shows him a white cat. T responds by telling his daughter that the animal she
showed him could not be a cat because it is not black. On the other hand, a belief is a mistake if it is
susceptible to correction if the testator is told the truth. Thus, if the testator’s had responded to his
daughter’s actions by saying something like, “I never knew that white cats existed. Now I do.”
As the next few cases illustrate, contestants seldom rely on testamentary capacity alone when
seeking to have a will invalidated. This is the case because it is almost impossible to prove that a
testator failed to meet the minimum capacity requirement. Thus, the argument is usually that the
person’s testamentary capacity was adversely impacted by other factors including insane delusion,
fraud and undue influence.
9.2

Testamentary Capacity

In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005)
HAWTHORNE, J.
In this formal testacy proceeding as to the estate of Robert Ramon Romero (decedent), decedent’s
children, Barbara A. Romero and Robert Ross Romero (contestants), appeal the probate court’s
judgment denying their petition for adjudication of intestacy. Decedent’s sister, Dolores G. Vasquez,
as devisee, opposed the petition. We affirm.
This case involves a contested probate of a formal will executed by decedent. The will named
decedent’s mother as personal representative and his sister as the successor personal representative.
Decedent devised a gift of $500 to each of his children and left the remainder of his estate to his
mother and sister in equal shares, with a provision that if either his mother or sister predeceased
him, the remaining beneficiary would take the entire remainder. Because decedent’s mother
predeceased him, his sister was left as the sole beneficiary of the residuary estate.
Contestants filed objections, claiming that decedent did not have the testamentary capacity to
execute a will. In support of their assertions, they relied primarily on the uncontested facts that
decedent suffered from mental illness and that he had been a protected person under a Veterans
Administration (VA) guardianship over his financial affairs.
A hearing was held on the petition for formal probate. Contestants presented, inter alia, expert
witness testimony from the physician who treated decedent for schizophrenia. While this physician
testified that decedent suffered from auditory hallucinations, the physician was unable to connect
them with execution of decedent’s will and, moreover, saw decedent for only a few minutes on three
occasions during the eighteen months prior to the signing of the will. The probate court accordingly
87

In re Millar’s Estate, 207 P.2d 483, 487 (Kan. 1949).

410

discounted his testimony.
Instead, the probate court credited the testimony of the attorney who prepared the will, because it
found him to be the only individual with personal knowledge of decedent’s testamentary capacity
when the will was executed. The attorney testified that he met with decedent on four separate
occasions, including one visit to decedent’s home. He testified that although decedent’s mother
transported decedent to and from the attorney’s office, she was present neither during his
conversations with decedent nor during the actual execution of the will, but remained in the office
waiting area. He further testified that decedent expressed his desire to leave his entire estate to his
mother and his sister because of his minimal contact with his children and in return for all the love
and support he had received from his mother and sister over the years. The attorney also testified
that it was only upon his suggestion that decedent made a small bequest to his children to
demonstrate that his exclusion of them as primary beneficiaries was intentional. He further testified
that he had “no doubt in his mind” when the will was executed that decedent fully understood the
consequences of his action.
After considering all the evidence, the probate court found that contestants did not prove by a
preponderance of the evidence that decedent was not of sound mind when he executed his will. The
court held that neither the evidence of mental illness nor the mere existence of a VA guardianship
was sufficient, in and of itself, to prove lack of testamentary capacity. It further found that
decedent’s sister had provided ample evidence that the will was a voluntary act and was not the
product of undue influence. Accordingly, it granted the petition to admit the will to formal probate
and to appoint decedent’s sister as the personal representative of the estate in unsupervised
administration.
I.
Contestants first contend that the probate court erred in failing to conclude that the will was invalid
because decedent lacked testamentary capacity. We disagree.
A person has testamentary capacity if he or she is an “individual eighteen or more years of age who
is of sound mind.” Section 15-11-501, C.R.S. 2004. A testator’s soundness of mind may be evaluated
under either the test set forth in Cunningham v. Stender, 127 Colo. 293, 255 P.2d 977 (1953), or the
insane delusion test. See Breeden v. Stone, 992 P.2d 1167 (Colo.2000).
Under the Cunningham test, a person has testamentary capacity when the person (1) understands the
nature of the act, (2) knows the extent of his or her property, (3) understands the proposed
testamentary disposition, and (4) knows the natural objects of his or her bounty, and (5) the will
represents the person’s wishes. Cunningham v. Stender, supra. An individual lacks testamentary capacity
under the insane delusion test when he or she suffers from an insane delusion that materially affects
the disposition of the will. Breeden v. Stone, supra.
Once a proponent of a will has offered prima facie proof that the will was duly executed, any
contestant has the burden of establishing lack of testamentary intent or capacity, undue influence,
fraud, duress, mistake, or revocation by a preponderance of the evidence. Section 15-12-407, C.R.S.
2004; Breeden, supra, 992 P.2d 1170.
A.
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Contestants maintain that the facts demonstrated that decedent did not know the extent of his
property and therefore lacked testamentary capacity testamentary capacity under that prong of the
Cunningham test. We are not persuaded.
A finding of fact will not be set aside on appeal unless it is clearly erroneous. C.R.C.P. 52; In re
Estate of Gallavan, 89 P.3d 521, 523 (Colo.App.2004) (probate court’s findings under Cunningham and
the insane delusion test will not be set aside if there is evidence in the record to support them).
Evaluation of the credibility of witnesses, including expert witnesses, is a matter solely within the
fact finding province of the trial court, and we will not reweigh testimony or reevaluate evidence on
appeal. See CF & I Steel, L.P. v. Air Pollution Control Div., 77 P.3d 933, 937 (Colo.App.2003).
The appointment of a conservator or guardian is not a determination of testamentary incapacity of
the protected person. Section 15-14-409(4), C.R.S.2004.
There is scant Colorado case law detailing what specific knowledge is required for a testator to be
deemed to know the extent of his or her property. However, the cases which touch upon this issue,
including Cunningham itself, indicate that it is sufficient that a testator comprehend the “kind and
character of his [or her] property” or understand, generally, the nature and extent of the property to
be bequeathed. Cunningham, supra, 127 Colo. at 300, 255 P.2d at 981 (other citations omitted).
In other words, “A perfect memory is not an element of testamentary capacity. A testator may
forget the existence of part of his estate ... and yet make a valid will.” 1 Page on Wills § 12.22
(rev.2003).
1 Page on Wills, supra, § 12.22. Therefore, “[t]he fact that [the] testator believes that the residue of his
estate is of little value, when it is, in fact, more than two-thirds of his estate,” does not show lack of
capacity. 1 Page on Wills, supra, § 12.22.
An ability to index the major categories of property constituting an individual’s estate was found
sufficient to establish testamentary capacity in Breeden, supra, 992 P.2d at 1173. This holding is
consistent with the approach taken by courts in other jurisdictions with similar tests for testamentary
capacity. See Rich v. Rich, 615 S.W.2d 795, 797 (Tex.Civ.App.1980)(holding that a finding of
testamentary capacity does not require proof that “the testator knew the ‘true value of his property”
’); Prichard v. Prichard, 135 W.Va. 767, 772, 65 S.E.2d 65, 68 (1951)(holding that to have the capacity
to make a will, the testator must know his property, but “it is not necessary that he know every item
of his property or the value of his estate,” and “[i]t is sufficient if he knows of what his property
consists”).
Here, the probate court found that decedent understood that his assets comprised the accumulation
of whatever amounts were left over from his VA and social security benefits after his living expenses
had been deducted. The probate court concluded that decedent’s failure to know the actual amount
of money in his VA account was not surprising or fatal, given that the VA’s routine practice was not
to inform its wards how much money they had in their VA accounts, to protect the wards from
exploitation. Further, the court found that the relative size of the estate was not a motivating factor
in decedent’s decision to leave his estate to his mother and sister, as decedent’s attorney testified that
decedent’s original intent was to preclude his children from taking any of his estate at all.
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Under these circumstances, we agree with the probate court that decedent’s lack of knowledge of
the actual value of his estate did not affect his testamentary capacity.
B.
Contestants next contend that the probate court erred in concluding that decedent did not have an
insane delusion regarding the amount of his estate. Specifically, they argue that decedent had an
insane delusion that his estate would be minimal or nominal and that if he had realized the actual
value, he would have left a larger bequest to them. We conclude there was no error.
An insane delusion is a persistent belief in something that has no existence in fact, which belief is
adhered to in spite of all evidence to the contrary. Breeden v. Stone, supra, 992 P.2d at 1171. The
contestant bears the burden of proving that the testator suffered from an insane delusion, that he
was under such a delusion at the time of making his will, that the insane delusion materially affected
the disposition made in the will, and that the will was the product of the insane delusion. Breeden,
supra, 992 P.2d at 1171.
The evidence before the probate court was that decedent’s estate was valued at approximately
$90,000 when the will was executed and approximately $450,000 at decedent’s death. His attorney
testified that while decedent could not articulate the value of his assets, he expressed an
understanding that his assets came from his VA benefits, that his VA guardian allocated him enough
money to meet his personal needs and to pay for his living expenses, and that his estate would
consist of the money left over in his accounts under VA supervision after his expenses were met.
Moreover, his attorney testified that because he was familiar with the management of VA
guardianship accounts, he did not press decedent about the value of the estate. While the attorney
described decedent’s account as nominal, this was his own assessment rather than a quote from
decedent.
A field examiner for the VA testified that although a VA guardian is required to file an annual
accounting with the court and with the VA, veterans would not usually be in a position to know the
exact value of their estates because they were not furnished copies of their annual accounts. If
veterans inquired, they were told they could get a copy of their accountings at the court where the
documentation was filed.
The probate court concluded that it was not surprising that decedent did not know the value of his
estate, given his apparent satisfaction with the money-handling arrangement and the lack of
documentation as to the dollar amount of his VA account. Moreover, the probate court specifically
credited the attorney’s testimony that decedent was not motivated by the comparative size of the
amounts passing to his children and to his mother and sister.
The probate court’s findings are supported by the record, and under these circumstances, we
conclude there was no error.
C.
Contestants maintain that the probate court erred in finding decedent had testamentary capacity in
light of the VA guardianship. Specifically, they assert that because of his VA guardianship, decedent
was found unable to enter into any contracts and that as such, he had no testamentary capacity. We
413

disagree.
In support of their argument, contestants point to a VA regulation that defines a mentally
incompetent individual subject to guardianship as one who “lacks the mental testamentary capacity
to contract or to manage his or her own affairs, including disbursement of funds without limitation.”
38 C.F.R. § 3.353(a).
The VA regulations, however, specifically provide that “[l]ack of testamentary capacity should not be
confused with ... mental incompetence.” 38 C.F.R. § 3.353(c). The regulations provide that there is a
general but rebuttable presumption that every testator possessed testamentary capacity and
reasonable doubts should be resolved in favor of testamentary capacity. The regulations also provide
a test for testamentary capacity similar to the test utilized in Colorado, including a requirement “that
the testator reasonably comprehend the nature and significance of his act, that is, the subject and
extent of his disposition, recognition of the object of his bounty, and appreciation of the
consequence of his act, uninfluenced by any material delusion as to the property or person
involved.” 38 C.F.R. § 3.353(a).
Here, a VA field administrator testified that the VA rating of incompetency meant that decedent was
incompetent only as to the handling of his VA disability funds and did not mean he was
incapacitated as to other matters. The field administrator further testified that a veteran, even if
incompetent to handle VA funds, could still enter into contracts similar to wills by naming insurance
beneficiaries and that, in fact, the VA had accepted such a designation from decedent. Accordingly,
the VA had found decedent to have testamentary capacity, despite his VA guardianship, under a test
similar to the test established in Colorado.
We also note that the supreme court has held “that contractual capacity and testamentary capacity
are the same.” Breeden v. Stone, supra, 992 P.2d at 1170 (citing Hanks v. McNeil Coal Corp., 114 Colo.
578, 168 P.2d 256 (1946)).
Section 15-14-409(4), C.R.S. 2004, specifically provides that the appointment of a conservator or the
entry of another protective order is not a determination of the testamentary capacity of the
protected person. Moreover, § 28-5-219, C.R.S. 2004, 2004, provides that neither the fact that a
person has been rated incompetent by the VA nor the fact that a guardian has been appointed for
the person shall be construed as a legal adjudication of insanity or mental incompetency. Thus,
Colorado statutes explicitly state that the findings that warrant appointment of a guardian or
conservator do not equate to a determination of testamentary incapacity. In re Estate of Gallavan,
supra, 89 P.3d at 523.
Given the statutory framework and the record in this matter, we conclude that the probate court did
not err in finding that decedent had testamentary capacity in spite of his VA guardianship.
The judgment is affirmed.
Notes, Problems, and Questions
1. A person is presumed to possess testamentary capacity. This presumption stems from the fact
that courts disfavor intestacy. Since a person is presumed competent to execute a will, the one who
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contests the will has the burden of showing that the testator was incompetent when he or she
executed the will. The existence of a conservatorship or a guardianship does not create the
presumption that the protected person lacks testamentary capacity.
2. Sophia hired a lawyer to execute her will. When she filled out the will questionnaire, Sophia
included the Golden Gate Bridge as one of her assets. Does this indicate that she lacks testamentary
capacity?
3. Madge told the lawyer drafting her will that she had three children, five grandchildren and one
great-grandchild. In fact, Madge has only two grandchildren and no great-grandchildren. Does this
indicate that she lacks testamentary capacity?
4. In the Romero case, what evidence did the contestants present to support their claimed that the
testator lacked testamentary capacity? Why did the court hold that Romero had the necessary
capacity? Why did they argue that Romero was suffering from an insane delusion?
5. In the Romero case, what was the test for testamentary capacity under the VA regulations? Would
the outcome of the case have been the same if the court had applied that test?
6. Why did the Romero court determine that the fact that a guardian had been appointed for Romero
did not impact his testamentary capacity? Do you agree with that determination?

Matter of Estate of Oliver, 934 P.2d 144 (Kan. App. 1997)
GERNON, Presiding Judge:
This is a will contest case. The contestants, Lenard and Charlene Miller, appeal the trial court’s
decision to admit the will of Alta E. Oliver into probate.
Oliver died in 1993 at the age of 93, leaving an estate of approximately $400,000. She was survived
by a sister and several nieces and nephews.
The Millers were friends with Oliver. From 1978 until her death, Oliver wrote several different wills,
leaving the Millers as beneficiaries in each, but in varying degrees.
In 1985, the Millers took Oliver to her attorney, Raymond Stein, and she executed a will which made
the Millers the principal beneficiaries.
In 1988, a guardian and a conservator were appointed for Oliver. She also entered a nursing home
that fall.
In November 1988, several of Oliver’s relatives, including her sister, visited her and tape recorded
their conversation with her. The substance of the conversation was to advise Oliver that she had
given Lenard Miller control of her estate and to urge her to see her lawyer to check her estate plan.
One nephew, Charles Albert, subsequently asked Guy Steier, Oliver’s guardian ad litem, to meet
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with Oliver because he felt she wanted more input into her personal affairs. Steier met with Oliver in
January 1989. Steier testified that Oliver seemed surprised she had so much money in various
accounts. He testified that at that time, she expressed reservations about the amounts the Millers
would receive under the will. She stated, according to Steier, that she wanted more input as to how
her affairs were being handled.
Steier contacted the local mental health center and requested an evaluation of Oliver. A hearing on a
petition for restoration of capacity was held, at which time the results of the evaluation were
presented. The magistrate judge found that Oliver was a disabled person and ordered the
guardianship and conservatorship to continue. The magistrate made no ruling as to her testamentary
capacity. Oliver’s niece, Charlene Rupe, was appointed guardian, and a bank was appointed as
conservator.
In June 1989, Rupe and two other nieces took Oliver to the bank where her certificates of deposit
naming the Millers as the payable on death recipients were located. A bank teller, Peg Kenningsman,
testified that Oliver informed her she wanted to change the beneficiaries on her certificates of
deposit. Kenningsman testified that Oliver did not talk with her nieces while at the bank and never
wavered in her request. Kenningsman testified that Oliver appeared to know what she was doing.
That same day, the nieces took Oliver to see Steier. Steier met with Oliver in private. The 1985 will
was reviewed in detail, and Oliver, according to Steier, made very specific and knowledgeable
changes to the will.
Two days later, Steier again met with Oliver. They reviewed the will, and Oliver made a change in
one of the clauses.
On June 30, 1989, Steier and two of his employees, Janet Holway and Marilyn Huffman, went to see
Oliver at the nursing home with the final draft of the will. When they arrived, Oliver was playing
cards and Steier noted that her cards were properly organized and she was playing the correct meld.
After she finished playing the hand, they went to her room and reviewed the 1985 will and the new
one. Steier stated that Oliver knew her family, her land, and where her bank certificates and accounts
were generally located, but she was not sure how much money was in the accounts. When Steier
suggested $190,000, Oliver was still not sure about the amount but stated that she trusted him.
Oliver executed the will in the presence of Steier, Holway, and Huffman. Steier and Holway signed
as witnesses, and Huffman notarized the document.
Steier testified that in his opinion, Oliver possessed testamentary capacity at that time and was not
under undue influence. Holway also testified that in her opinion, Oliver knew who her relatives
were, what her assets were, and why they were present in her room on June 30, 1989.
The 1989 will was submitted for probate. The Millers contested the validity of the 1989 will,
claiming that Oliver lacked testamentary capacity at the time the will was executed.
Can a conservatee make testamentary decisions?
The Millers first argue that since Oliver was a disabled person under K.S.A. 59-3002(a) and had a
guardian and conservator involuntarily appointed for her, she lacked the required capacity to execute
the 1989 will and to change the beneficiaries on her payable on death certificates of deposit. They
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maintain the trial court erred in finding that Oliver was competent to execute her 1989 will and
make the changes to her certificates of deposit because an involuntary conservatee cannot make
testamentary dispositions.
The Millers’ contention raises a question of law over which this court has unlimited review. See
Hillman v. Colonial Penn. Ins. Co., 19 Kan.App.2d 375, 376, 869 P.2d 248, rev. denied 255 Kan. 1001
(1994).
While it is true that most of our decisions on this issue have arisen in the context of a voluntary
conservatorship, see, e.g., Campbell v. Black, 17 Kan.App.2d 799, 844 P.2d 759 (1993), our courts
continue to adhere to the principle that being under a guardianship or conservatorship does not
prevent one from making testamentary dispositions. As noted in Citizens State Bank & Trust Co. v.
Nolte, 226 Kan. 443, 449, 601 P.2d 1110 (1979), the conservator’s purpose “is to manage the estate
during the conservatee’s lifetime. It is not his function, nor that of the probate court supervising the
conservatorship, to control disposition of the conservatee’s property after death.”
In In re Estate of Raney, 247 Kan. 359, 799 P.2d 986 (1990), the decedent’s children sought and
obtained a conservatorship for him against his wishes. The decedent believed his children imposed
the conservatorship in order to preserve his estate for themselves and subsequently executed a will
while under the conservatorship. The trial court refused to admit the will to probate, finding that the
decedent lacked testamentary capacity to make the will because he suffered from insane delusions.
The Supreme Court reversed on the basis that the trial court’s finding was not supported by the
evidence. 247 Kan. At 375, 799 P2d 986. In reaching its holding, the court noted:
“The trial court recognized that being under a guardianship and conservatorship does not
necessarily deprive one of the power to make a will. Incompetency to transact business is not the
equivalent of insanity and does not mean that the testator lacks testamentary capacity. Previously,
this court concluded that an aged person who was ‘ “feeble-minded and incapable of managing his
affairs” ’ and who needed a guardian could, three weeks later, be competent to make a will. In re
Estate of Hall, 165 Kan. 465, 469, 195 P.2d 612 (1948) (quoting Mingle v, Hubbard, 131 Kan. 844,
293 Pac. 513 [1930]). In Hall, the court stated: ‘It is practically a universal rule that the mere fact
that one is under guardianship does not deprive him of the power to make a will.’ 165 Kan. 465 at
469, 195 P.2d 612 (citing Annot., 8 A.L.R. 1375).” 247 Kan. at 367-68, 799 P.2d 986.
We conclude that a conservatee, whether voluntary or involuntary, clearly retains the right to decide
how his or her property is to be distributed upon death. See In re Estate of Perkins, 210 Kan. 619,
626-27, 504 P.2d 564 (1972); In re Estate of Briley, 16 Kan.App.2d 546, 549, 825 P.2d 1181 (1992).
This right includes the power to change beneficiaries on payable on death accounts as well as make
wills. See In re Estate of Raney, 247 Kan. at 367-68, 799 P.2d 986; Campbell v. Black, 17 Kan.App.2d at
802-03, 844 P.2d 759. “As long as the requisite mental capacity exists, a person has the power to
dispose of the property as he wishes, and this power should not be interfered with by the court.” In
re Estate of Raney, 247 Kan. at 367, 799 P.2d 986. Consequently, if, as in this case, Oliver possessed
testamentary capacity testamentary capacity at the time she executed her will and made the changes
to her payable on death certificates of deposit, the distributions are valid.
Burden of Proof
The Millers next assert that there is a presumption of testamentary incapacity for any ward or
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conservatee. We disagree.
It is well established in Kansas that once it has been shown that “a will has been executed in
accordance with the formalities required by law, the burden is upon the will contestant and he must
produce evidence to support his position.” In re Estate of Perkins, 210 Kan. at 626, 504 P.2d 564.
The cases cited by the Millers involve individuals who have been adjudicated mentally incompetent
or insane. Here, the record does not support an assertion that Oliver’s mental condition was so
diminished as to render her insane or mentally incompetent.
Other jurisdictions hold the fact that an individual has been adjudicated incompetent at a guardian
proceeding does not mean he or she cannot execute a will. These courts note that this fact is merely
evidence to be considered when determining testamentary capacity and the proponent does not
carry a higher burden of proof on this issue. See, e.g., Paskvan v. Mesich, 455 P.2d 229, 238-39 (Alaska
1969); In re Estate of Basich, 79 Ill.App.3d 997, 1001, 35 Ill. Dec. 232, 398 N.E.2d 1182 (1979); see
also Annot., 89 A.L.R.2d 1120.Other courts point out that a guardianship and conservatorship can
be based on a variety of reasons other than for complete mental incompetency, such as age, which
do not necessarily affect an individual’s testamentary capacity. See, e.g., Estate of Dopkins, 34 Cal.2d
568, 578, 212 P.2d 886)1049); In re Bottger’s Estate, 14 Wash.2d 676, 697, 129 P.2d 518 (1943); see also
Annot., 89 A.L.R.2d 1120, 1130.
Based on the above reasoning, we conclude the burden of proof on the issue of testamentary
capacity does not change in those instances where a testator is involuntarily appointed a conservator
or guardian.
Testamentary Capacity
The Millers contend the trial court’s findings that Oliver possessed testamentary capacity when she
changed her payable on death certificates and when she executed her will are not supported by the
evidence.
When reviewing the trial court’s findings, this court must determine whether substantial competent
evidence exists to support the court’s findings and will not reweigh conflicting evidence. In re Estate
of Bolinder, 19 Kan.App.2d 72, 74, 864 P.2d 228, rev. denied 254 Kan. 1007 (1994).
A testator must have testamentary capacity to make a will. In Kansas, the requirements for
determining testamentary capacity are well settled:
“It is the established rule in Kansas, the deceased possesses testamentary capacity if, on the date
he executes the instrument which determines the manner in which the property will be disposed
after death, he knows and understands the nature and extent of that property, has an intelligent
understanding concerning the disposition he desires to make of it, realizes who his relatives are
and the natural objects of his bounty, and comprehends the nature of the claims of those whom
he desires to include and exclude in and from participation in his worldly effects after he has no
further need for them.” In re Estate of Ziegelmeier, 224 Kan. 617, 621, 585 P.2d 974 (1978).
See In re Estate of Raney, 247 Kan. at 367, 799 P.2d 986; In re Estate of Bolinder, 19 Kan.App.2d at 75,
864 P.2d 228. The critical time in determining testamentary capacity is when the will is made and
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executed. All other evidence concerning the testator’s mental capacity before or after the time of
execution is only an aid in deciding the issue. In re Estates of Barnes, 218 Kan. 275, 281, 543 P.2d 1004
(1975).
“The test of a testamentary capacity is not whether a person has capacity to enter into a complex
contract or to engage in intricate business transactions nor is absolute soundness of mind the real
test of such capacity. The established rule is that one who is able to understand what property he
has, how he wants it to go at his death and who are the natural objects of his bounty is competent
to make a will even though he may be feeble in mind and decrepit in body.” In re Estate of Perkins,
210 Kan. at 626, 504 P.2d 564.
The Millers refer to various instances before and after the dates in question as support for their
contention that Oliver lacked testamentary capacity. They further point out that Oliver suffered
from degenerative dementia and did not know the exact amount of money in her bank accounts at
the time she executed her will.
The mere fact that a person suffers from senile dementia does not mean that person lacks
testamentary capacity. In re Estate of Brown, 230 Kan. 726, 730, 640 P.2d 1250 (1982). Here, Steier, the
attorney who drafted the will, and two of his employees were present when Oliver executed the will.
Steier testified that Oliver reviewed the will before signing it and knew to whom she wanted her
property to go at her death. While Oliver was not positive of the exact amount of her cash assets,
she listed her relatives and extensively discussed her personal and real property with Steier. It is
apparent from Steier’s and Holway’s testimony that Oliver knew the general nature of her property
and how she wanted it distributed when she signed the will.
Under the circumstances in this case, the trial court’s findings that Oliver had testamentary capacity
to make the will and to make changes to her certificates of deposit are supported by substantial
competent evidence.
Our examination of the specific claims made by the Millers leads us to the same conclusion as that
of the trial judge.
Affirmed.
Notes, Problems, and Questions
1. The only testamentary capacity that is relevant is the capacity that the testator has at the time the
will is executed. Therefore, someone with a condition that permits them to have lucid periods may
be legally competent to execute a will.
2. Consider the following problem. Tony takes medicine for a chronic illness. One side effect of the
medicine is that Tony has hallucinations. The side effects last for about two hours after Tony takes
the medicine. Tony takes the medicine every morning at about nine. One of the main hallucinations
that Tony has is that his daughter, Barbara, is really his mother, Claire. Tony’s mother has been dead
for about twenty-years and they had a strained relationship. One morning, Tony contacted his
lawyer and stated that he wanted to change his will so that his mother would not inherit any of his
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estate. In response, Tony’s lawyer came to his house at about two o’clock in the afternoon. At that
time, Tony amended his will and left all of his property to his wife, Jean, and his son, Amos. The
prior will had split the estate between Jean, Amos and Barbara. When Tony died, Barbara filed an
action contesting the will. What is Barbara’s strongest argument? What are her chances of getting the
will set aside?
3. In the Oliver case, why did the contestants claim that the testator lacked testamentary capacity?
What evidence did the lawyer who drafted the will put forth present to rebut their contention?

Paine v. Sullivan, 950 N.E.2d 874 (Mass. App. 2011)
HANLON, J.
Valerie E. Sullivan (Valerie) appeals from the decision of a Probate and Family Court judge
concluding that the testator, John L. Sullivan (John), possessed testamentary capacity when he
executed his last will and testament on June 26, 2004 (will), and also that the will was not the
product of undue influence. We agree that the will was not the product of undue influence, but we
hold that the petitioner, Susan W. Paine, did not meet her burden of proving the testator had
testamentary capacity.
In reviewing issues of testamentary capacity and undue influence, “[i]t is our obligation to review the
evidence and reach a decision in accordance with our own reasoning and understanding, giving due
weight to the findings of the trial judge, which we will not reverse unless they are plainly wrong, and
finding for ourselves any additional facts we believe to be justified by the evidence.” Palmer v. Palmer,
23 Mass.App.Ct. 245, 249-250, 500 N.E.2d 1354 (1986), quoting from Olsson v. Waite, 373 Mass. 517,
520, 368 N.E.2d 1194 (1977). The question, however, “is not what finding we ourselves would have
made on the same evidence,” but whether we can say the finding of “competence was plainly
wrong.” Goddard v. Dupree, 322 Mass. 247, 248, 76 N.E.2d 643 (1948). A finding is not “plainly
wrong” unless “the evidence, with every reasonable inference which can be drawn from it, is
insufficient to warrant the findings.” Erb v. Lee, 13 Mass.App.Ct. 120, 124, 430 N.E.2d 869 (1982).
With these standards in mind, we set forth the facts in some detail. Maimonides Sch. v. Coles, 71
Mass.App.Ct. 240, 242, 881 N.E.2d 778 (2008). John was born in May, 1912, and met his wife,
Odette, in France when he was stationed there. They married in 1956 and enjoyed a forty-seven-year
marriage before Odette died on July 23, 2004, of melanoma. John died in 2006. The couple had no
children of their own; they adopted Odette’s sister’s daughters, Annabelle and Valerie. Annabelle
had a falling-out with Odette and John in 1995; she left the home in 1995 and never reconciled with
her adoptive parents.
In 1995, John executed a will eliminating Annabelle as a beneficiary and leaving the residuary of his
estate to Valerie should Odette predecease him. Valerie remained with John and Odette until 2000
when Valerie was about thirty years old; at that time, Valerie and Odette had a falling-out. The judge
found that John allowed Odette to banish Valerie from their home but noted that he continued to
sneak telephone calls to her. The judge credited testimony that John was disappointed in Valerie
because she had deeply wounded Odette, and that John never forgave Valerie for that even though
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he continued to love Valerie and miss her. We defer to the judge’s findings, based in part on
credibility determinations, in this regard.
Odette owned and operated her own beauty salon in Brookline. The overall evidence supported the
judge’s findings that, at home, Odette was the “boss” and John happily acceded to her wishes in
most areas throughout their marriage. In particular, Odette always took the lead on the couple’s
estate planning.
Odette was diagnosed with melanoma in late 2001. In 2002, she asked the same attorney (attorney)
who had drafted the couple’s 1995 wills to draft new reciprocal wills for her and John, leaving their
estates to one another but, in the event that one predeceased the other, leaving Valerie one dollar
and the residuary of their estates to friends of Odette. John executed a will on January 14, 2002,
consistent with this request. Paine was named executor of the will if Odette did not survive him.
Paula Miller, Odette’s assistant for over twenty years and a personal friend of Odette and John, was
named as one of the residuary beneficiaries of the will. New wills were executed on February 1,
2003, February 3, 2004, and June 26, 2004, in which minor changes to the residuary beneficiaries
were made, but Paine remained the alternate executor. The judge allowed the June 26, 2004, will.
The medical records contained in the record appendix leave little doubt that John suffered from
some degree of dementia during the time period that the 2002–2004 wills were executed. A June 25,
2001, neurology note concludes that John had “significant frontal dysfunction with poor insight and
judgment, difficulty changing set and mild recent memory difficulties.” The neurologist indicated
that he discussed with John and Odette that John’s insight and judgment difficulties made it difficult
for him to appreciate his “gait instability.” While there was some suspicion that a vitamin B12
deficiency was the cause of some of his symptoms, a full neuropsychological evaluation was
recommended, which John underwent on October 15, 2001. The judge acknowledged the report of
the October 15, 2001, evaluation, noting only that it revealed “mild cognitive slowing.”
In fact, the history portion of the report of the October 15, 2001, evaluation reflects that Odette had
observed some memory impairment over the past three years and more recent word-finding
difficulty. The report reflects that before January of 2001, John had managed their financial affairs,
but that he had become “confused” about the taxes and thereafter Odette took over the finances. In
addition, John was receiving personal care assistance when his wife was at work. The report further
reveals “evidence of significant cognitive impairment. Specifically, testing revealed mild
disorientation (time), mild cognitive slowing, moderate anomia, moderate amnesia, and less
pervasive frontal lobe deficits.” Although it was felt that incompletely treated vitamin B12 deficiency
could contribute to some of John’s symptoms, the report concluded that a vitamin B12 deficiency
did not explain all of them and that the “anomia and amnesia combined with less pronounced
deficits in frontal lobe functioning [were] highly suggestive of a diagnosis of Senile Dementia of the
Alzheimer’s Type (SDAT).” The neuropsychologist concluded that “[u]nless his mental status
improves appreciably, [John] will continue to need close supervision. Driving is contraindicated.”
The medical records do not reflect that John’s mental status improved appreciably thereafter.
In July of 2002, John was seen by his primary care physician, and with regard to dementia, he was
“strongly encouraged to follow up with the neurologist for additional evaluation.” There is no
evidence that John followed this advice; the next neurology note is in 2004, after his wife died and
Valerie was caring for him. When John was seen in the emergency room on June 7, 2003, a week or
two after a motor vehicle accident, he was described in a neurosurgery consult as “bright and
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oriented x 4,” and the judge relied on this portion of the note in support of her finding that he had
testamentary capacity when the 2004 will was executed. The next sentence of the note stated,
however, that “[t]here are obvious gaps in his short-term memory but this is of a chronic nature, as
his wife was present during the interview.” In addition, the emergency room physician noted that
John was able to tell him he was in the hospital, but not which one, and that John was able to
identify the month and day of the week, but could not tell him the date or the year. It was further
noted that Odette reported “more of a significant problem with some baseline confusion and this
was confirmed by ... his primary care physician.”
The medical records reflect that by July 3, 2003, John had a personal care attendant twenty-four
hours per day. Notwithstanding his need for twenty-four-hour care, the judge credited a September,
2004, note of his primary care physician that refers to John’s dementia as “mild.” The complete
statement is that “[t]he patient also has ongoing progressive mild dementia and this has been an
ongoing symptom that was first noted in 2001. The patient also had neuropsychological exam and
testing in 2001 as well. Progressively, this has been monitored and certainly has noticed ... increasing
forgetfulness.” In the assessment and plan section of the note, the doctor states, “Regarding his
dementia, the patient will be scheduled to follow up with the neurologist for additional follow up
evaluations. He will continue with his Zyprexa and continue to have supervision at all times with
monitoring of his medications and activities.” On August 3, 2004, his primary care physician signed
a document saying that John suffered from senile dementia and was unable to live alone. A
November 2, 2004, neurology note reflects poor orientation, “poor recall memory, poor working
memory and poor visual spatial construction.”
The judge essentially adopted the opinion of the proponent’s expert, Dr. Barry Roth, who identified
medical records that described John’s dementia as mild, and noted that medical providers continued
to direct their reports to John and explained test results to John, and that John continued to be
involved in making treatment decisions for himself. From this evidence, Dr. Roth concluded that
“[a]s a physician, the preponderance of evidence indicates that [John] had capacity to know his
property, who were the natural heirs to his bounty, that he was in the process of making a will to
make distribution with respect to those elements, and that he was in fact making such a plan.”
The attorney who drafted all the wills testified that he routinely spoke with Odette about estate
planning for her and John. For the wills dated after 2000, he spoke with John only by telephone, and
John simply confirmed that he was in accord with the instructions as given by Odette. The attorney
did not have any private conversations with John. He did not visit with John. The judge credited the
attorney’s testimony that he drafted the wills in accordance with John’s instructions. The attorney
testified, however, that he did not read the wills to John after they were drafted. He mailed the
documents to John and Odette, and they took the documents to a local bank for execution. The
attorney did not supervise the execution. He could provide no evidence as to John’s capacity on the
dates the wills were executed.
At trial, the attorney was given a copy of the October, 2001, report of the neuropsychological testing
of John. He testified that he had been unaware of that report and the diagnosis of dementia, and
that, had he been aware of them, he would have investigated the issue of capacity further and would
have requested a medical consultation on testamentary capacity. He would not have drafted the wills
without a medical evaluation. He testified he could see from the report that John was impaired and
that the report called into question John’s independent judgment. Even though the attorney was
aware that John had always followed Odette’s lead with their estate planning, had he been aware of
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the 2001 report, he would have consulted a physician. Nonetheless, the judge credited the attorney
“with the requisite degree of attention to capacity and free will ... expected of an attorney drafting a
Will for a client.” She further credited the attorney’s testimony that “he would have never drafted a
Will for a client he believed to be mentally incapacitated.”
Odette brought John to their local bank to execute the various wills. The bank employees who
witnessed the 2002–2004 wills testified that they did not recall the specifics of the executions, but
they never saw John appear confused, nor did they think that he was forced to execute the wills.
During the executions, they had no discussions with John aside from social niceties.
THE SECTION ON UNDUE INFLUENCE IS OMITTED.
Testamentary capacity. “Where there is some evidence of lack of testamentary capacity, the
presumption of sanity loses effect and ‘the burden [is] on the proponent of the will to satisfy the
tribunal of fact by a fair preponderance of the evidence that the deceased was of sound mind and
testamentary capacity when the instrument was executed.’” Palmer v. Palmer, 23 Mass.App.Ct. at 250,
500 N.E.2d 1354, quoting from Santry v. France, 327 Mass. 174, 176, 97 N.E.2d 533 (1951). “That
burden is met by a showing that it is more probable than not that, at the time of execution of the
will, ... ‘the testator [was able] to understand and carry in mind, in a general way, the nature and
situation of his property and his relations to those persons who would naturally have some claim to
his remembrance. It requires freedom from delusion which is the effect of disease or weakness and
which might influence the disposition of his property. And it requires ability at the time of execution
of the alleged will to comprehend the nature of the act of making a will.’” Ibid., quoting from
Goddard v. Dupree, 322 Mass. 247, 250, 76 N.E.2d 643 (1948), “It is also well settled that in addition
to possessing the requisite testamentary capacity and complying with the statutory formalities
regarding execution, it must also be shown that the testator knew the contents of the instrument
which he signed and executed it with the intention that it operate as his will. The burden of proof on
these matters is on the proponent. Here again, he is aided by a presumption that a person signing a
written instrument knows its contents.” Duchesnean v. Jaskoviak, 360 Mass. 730, 733, 277 N.E.2d 507
(1972) (citations omitted).
The evidence presented by Valerie adequately rebuts the presumption of capacity. John exhibited
symptoms consistent with the diagnosis of “Senile Dementia of Alzheimer’s Type” at least as early
as October of 2001. We are well aware that a diagnosis of Alzheimer’s disease in and of itself does
not compel a conclusion that a testator lacks capacity to execute a will. The diagnosis carries more
weight, however, when the cognitive deficits associated with Alzheimer’s disease manifest
themselves in the loss of abilities that bear on testamentary capacity. Here, by June of 2001, John’s
cognitive deficits were such that his poor judgment caused him to be unaware that his gait was
unsteady. By October of 2001, driving was deemed contraindicated. He required supervision when
his wife was not at home. And, perhaps most importantly, he had lost the ability to handle the
family’s finances, a task he had always performed. His inability to handle the finances was due to
“confusion,” not physical weakness. In addition, Valerie offered an expert opinion that John lacked
testamentary capacity to execute the 2002–2004 wills. We think this evidence taken together was
sufficient to rebut the presumption of testamentary capacity. Compare O’Rourke v. Hunter, 446 Mass.
814, 827, 848 N.E.2d 382 (2006) (history of delusions that had resolved and ongoing frailty and
depression did not rebut the presumption of capacity where testator met with attorney on four
occasions and clearly articulated her desires, instructing the attorney how to modify two draft wills
before executing the third version).
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Paine, the proponent of the will, bore the burden of proving John had testamentary capacity when
he executed his 2004 will, unaided by a presumption of testamentary capacity. She failed to meet her
burden. Paine offered the testimony of Dr. Roth, who relied on medical notes that referred to John’s
dementia as “mild” and indicated that physicians continued to direct their reports to him and
continued to include him in medical decisions through 2005. Dr. Roth explained that “the reports of
the physicians over a long period of time [indicated] that they understood that he was able to take in
what they were telling him [and] manipulate it to arrive at a treatment plan in collaboration with
them where there was informed consent. Meaning, he could take in the information, he could
process it, he could work with his health care providers to arrive at a decision in cooperation with
them.” In addition, Dr. Roth indicated that the records reflect a “fairly mild degree of dementia.”
From this evidence, Dr. Roth concluded that John possessed testamentary capacity. The judge
accepted and adopted Dr. Roth’s opinion.
First, it is not at all clear that Dr. Roth’s conclusions are supported by careful review of the medical
records. In large part, he “cherry picked” portions of the medical records that could suggest John’s
dementia was mild and ignored contrary medical records. For example, he points to a June 27, 2002,
handwritten note by John’s primary care physician indicating that John had declined to have further
work-up of a suspicious finding on a neck X-ray, “given his advanced age and lack of symptoms,”
even though he understood it “could indicate both benign and malignant process.” This, Dr. Roth
concluded, indicates John had a sophisticated, high-level ability to take in information, process it,
understand it, and arrive at a reasonable plan. Dr. Roth ignores that, in follow-up two weeks later,
further testing was performed, calling into question John’s original decision. But, even accepting Dr.
Roth’s interpretation of the physicians’ reports as accurate, all that can be said is that with careful
explanation by physicians, John retained some ability to process information and assist in reaching a
treatment decision. When John executed the 2002–2004 wills, however, there is no evidence that
anyone explained his estate planning options to him. There is no evidence that the 2004 will was
read to him, or that anyone reviewed his finances with him, or that anyone asked him to identify or
reviewed with him the natural objects of his bounty. In these circumstances, his ability to participate
in medical decisions, where treatment options were clearly explained, simply does not support the
inference that he possessed testamentary capacity in a situation where his options appear not to have
been explained to him, and where he was never asked to articulate the choices he was said to be
making.
In determining that John had testamentary capacity, the judge credited the attorney with the degree
of care and attention appropriate to the issue of testamentary capacity. See O’Rourke v. Hunter, 446
Mass. at 827, 848 N.E.2d 382. This was plain error. It is true that in circumstances when medical and
other evidence call into question a testator’s capacity, we have relied on the testimony of the drafting
attorney in resolving the testamentary capacity issue. See Palmer v. Palmer, 23 Mass.App.Ct. at 251-252
& n. 5, 500 N.E.2d 1354 (attorney who prepared simple, one-page instrument met with testator
prior to execution and just prior to execution, summarized each article and put the practical effect in
simple layman’s language); Rempelakis v. Russell, 65 Mass.App.Ct. 557, 561-562, 842 N.E.2d 970
(2006) (attorney met with testator in hospital, hand-wrote will according to testator’s instructions,
and read the will to her in front of witnesses; testator agreed it reflected her wishes before executing
it; attorney followed up with formal will and trust and repeated reading and execution formalities);
Maimonides Sch. v. Coles, 71 Mass.App.Ct. at 245-247, 881 N.E.2d 778 (attorney spoke with testator in
rehabilitation hospital by telephone and took him through the changes of his second trust
amendment, which testator confirmed; testator made additional changes later that day; attorney met
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with testator at rehabilitation hospital and went through amendment again; testator made additional
change and initialed change in the margin and at all times demonstrated to attorney that he knew
what he was doing and did not show any confusion).
Here, however, the attorney was unable to provide any relevant evidence as to John’s testamentary
capacity on the date the will was signed. The attorney had not seen John in a number of years and
only spoke with him by telephone; John simply verified he wanted what Odette wanted. The
attorney was unaware that John had been diagnosed with dementia in 2001. While we agree with the
judge that it is very likely that the attorney would not have drafted a will for a client he believed to
lack testamentary capacity, the attorney admittedly did nothing to determine whether John
understood the will as drafted, knew the natural objects of his bounty, had a general understanding
of his finances, or was suffering from any ailment that might influence his dispositions.
It is John’s capacity at the time he executed the will that is at issue. The record is virtually barren of
any evidence of his testamentary capacity when the will was executed except from the witnesses to
the will. The most that can be said of the testimony of the bank employees who witnessed the will is
that John did not display any outward evidence of confusion and did not appear forced to execute
the will. None of the witnesses recalled the specifics of the execution, however, and none recall
inquiring whether John knew he was signing a will, knew his financial holdings, knew the natural
objects of his bounty, or otherwise met the testamentary capacity standard. As to the elements of
testamentary capacity, the witnesses provided little relevant evidence.
Finally, we are aware that the judge credited testimony that through 2004, John “appeared sharp” to
Rex Olson, a friend of John. Olson’s conversations with John, however, were limited to small talk,
Odette, and their military careers. He described them as “nothing in depth” and did not provide any
description of John on or near the date the will was executed.
We are compelled to conclude, therefore, that Paine, as the proponent, failed to meet her burden of
proving that John possessed testamentary capacity when he executed the June 26, 2004, will, and
reverse the judgment allowing that will for probate. The judge made no findings as to the February
3, 2004, will, also offered by Paine, or the 1995 will, offered by Valerie. Therefore, the matter is
remanded to the Probate and Family Court for further proceedings consistent with this opinion.
So ordered.
Notes, Problems, and Questions
1. In Paine, what evidence did Valerie rely on to rebut the presumption that John had testamentary
capacity? Why did the court hold that she had successfully rebutted the presumption?
2. In Paine, what evidence did the proponent of the will put forth? What did the court say about that
evidence?
3. In Paine, why did the probate court decide that John had testamentary capacity?
4. In Paine, why did the appellate court hold that John did not have testamentary capacity?

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5. Why was the case sent back to the Probate and Family Court?
6. Problems-In which of the following cases would the testator lack capacity?
(a) T forgot that her oldest son had been killed in a car accident and insisted that he be included
in her will.
(b) T’s family home was seized by the government for back taxes. After the seizure, T continued
to maintain the yard. T included the property in her will because she plans to win the lottery
and buy the property back from the government.
(c) T stated that his estate was worth 982,000 dollars. The estate was worth only 90,000 dollars.
(d) T was diagnosed with bipolar disorder two years before she executed her will. In order to
stop her from depleting her trust fund, T’s parents went to court and successfully got
appointed as her guardian. After that time, without her parents’ knowledge, T amended her
will and left her entire estate to charity.
9.3

Insane Delusion

Matter of Estate of Killen, 937 P.2d 1368 (Ariz. App. 1996)
GRANT, Presiding Judge.
In this appeal, we consider whether a testator who knew the natural objects of her bounty but had
insane delusions about some of them that affected the terms of her will had the testamentary
capacity to execute a will. We hold that she did not have such capacity and that the evidence
supports the trial court’s conclusion that the testator’s will is invalid due to lack of testamentary
capacity.
FACTS AND PROCEDURAL HISTORY
On February 13, 1988, appellant Marion McCannon (“Marion”) and his wife, Virgie, arrived in
Phoenix from Missouri to visit his aunt, Dorothy I. Killen, the decedent (“Killen”). Four days later,
Killen told the McCannons that she wanted to find an attorney to draft a will for her. After driving
around, they found two law offices, but the attorneys in those offices were unavailable. At the third
office they tried, attorney Frank Collins agreed to draft a will for Killen. Collins did not know the
McCannons or Killen.
At Killen’s request, the McCannons left the office, and she conferred with Collins for an hour or
two. The McCannons took her back to Collins’ office the next day, February 18, 1988, for execution
of the will. Collins and a couple who operated a shop next to Collins’ office witnessed Killen’s
execution of her will.
In the will, Killen bequeathed only one dollar each to her nephews Russell Edward McCannon and
R.C. McCannon and her niece Carolyn Dixon. She bequeathed to Marion McCannon $75,000, a rug,
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half of $75,000 upon the death of her sister (who was to receive the interest on the $75,000 during
her lifetime), all of her personal property, and a pro rata share of her residuary estate. Bequests were
also made to other family members and friends. She named Marion as the personal representative.
Killen’s husband, Dylton, had died in 1985. They had no children. For many years prior to Dylton’s
death, Killen believed that he was trying to kill her, was putting poison in her food, and was in “the
mob.” However, by all accounts, Dylton was a fine man and a loving husband who cared for his
wife despite her delusions about him.
Shortly before Dylton’s death, Killen began having delusions about Russell, R.C., and Carolyn. Even
though these nephews and niece took care of her when her husband was ill and after his death and
treated her well, she believed they lived in her attic, or caused others to live in the attic, and
sprinkled chemicals and parasites down on her, put her to sleep and then pulled a tooth out and cut
her arms and hands with glass, were in the Mafia, and were trying to kill her so they could take her
property. Although other relatives tried to dissuade Killen from these bizarre beliefs, she would
insist that Russell, R.C., and Carolyn were out to get her.
On February 10, 1988, eight days before she executed her will, Killen was evaluated by Dr. Vinod
Patel, a psychiatrist. He diagnosed her as having a delusional paranoid disorder. He noted that
Killen’s judgment was compromised by paranoid ideas and that her delusional beliefs “can interfere
in certain decision making.”
Killen was admitted to Boswell Memorial Hospital on March 9, 1988, due to difficulty in breathing
and weakness. Because of her delusional and paranoid behavior, Killen was transferred later that day
to the psychiatric unit at the Maricopa County Hospital. The psychiatrist who examined her
concluded that she was having persecutory delusions, her insight was poor and her judgment was
impaired, and she was incapacitated by mental illness. He recommended that a guardian and
conservator be appointed for her.
Killen died in March, 1993. Marion applied for informal probate of her February 18, 1988 will. The
will was admitted to informal probate, and Marion was appointed personal representative.
Russell, R.C., and Carolyn petitioned the probate court for determination of testacy, removal of
Marion as personal representative, and appointment of M & I Marshall & Ilsley Trust Company of
Arizona as personal representative of Killen’s estate. They alleged that at the time Killen executed
the will she was operating under a mental derangement and did not have the capacity to make a valid
will.
The matter was tried to the court in September, 1993. Dr. Patel testified that Killen could not have
had lucid intervals because a delusion is permanent and lucid intervals are not possible with that
condition. According to Dr. Patel, Killen’s delusional disorder affected her ability to perceive her
family members and friends. In his opinion, a person with delusional paranoia, when family and
friends are involved in the delusions, would be unable to make a valid will.
Dr. Alexander Don, a psychiatrist, also testified. He had examined Mrs. Killen on November 27,
1989, and had reviewed her hospital records, records of other psychiatric evaluations, and
documents prepared by some of her family members. In his opinion, on February 18, 1988, Killen
was suffering with a psychotic illness termed delusional disorder. He explained that a delusion is a
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fixed false belief that cannot be disabused by rational argument and that because of her delusional
disorder she believed her husband and Russell and R.C. intended to harm her.
Dr. Don further testified that Killen’s delusions would have influenced the writing of a will because
her belief that individuals close to her were trying to destroy her would have been uppermost in her
mind when she contemplated her actions toward them. Thus, he said, her perception of various
beneficiaries was not rational or lucid. In Dr. Don’s opinion, Killen knew who the natural objects of
her bounty were, but she had a misperception of them because of her mental illness.
As contradictory evidence, Marion offered the testimony of Dr. Otto Bendheim, a psychiatrist. Dr.
Bendheim never examined Killen, he did not review her hospital records, and he acknowledged that
he did not perform a complete psychiatric autopsy but only reviewed the items relevant to the
question of her capacity to make a will. He testified that there was no question that the diagnosis of
Killen as psychotic, paranoid, and suffering from paranoid delusion disorder was correct. However,
he believed that she had testamentary capacity because she knew she was executing a will, she knew
the natural objects of her bounty, and she was aware of the nature and extent of her estate.
The probate court found that despite the good care Killen received from Russell, R.C., and Carolyn,
she believed they were trying to injure her and take her property. These delusions, said the court,
were false and were fixed and unshakable in her mind when she signed the February 18, 1988 will.
The probate court found that Killen did not have the capacity to know the natural objects of her
bounty and to appreciate her relationships with them. Therefore, it concluded that on February 18,
1988, Killen lacked testamentary capacity as a result of a delusional paranoid disorder that influenced
the creation and terms of the will she signed that day and thus the will was invalid. The court
entered an order withdrawing the will from probate, declaring that Killen died intestate, removing
Marion as personal representative, and appointing M & I Marshall & Ilsley Trust Company of
Arizona as successor personal representative. The court noted that each of Killen’s nieces and
nephews was entitled to one-eighth of her estate.
The court denied Marion’s motion for new trial. Marion, as personal representative and in his
personal capacity, appealed from the order and the denial of his motion for new trial.
DISCUSSION
Marion poses the issue on appeal as whether a testator’s will is valid if she understands the nature of
a will, knows the nature and extent of her property and knows the natural objects of her bounty but
has a misperception of some of her family members due to insane delusions. He argues that a
testator need only have the ability to know the natural objects of her bounty; it is not necessary that
she possess an accurate perception of her relationships or have plausible, justifiable reasons for her
opinions about her family members.
Marion maintains that, in any event, there was no proof that Killen’s paranoid state and nothing else,
such as a rational dislike and distrust of Russell, R.C., and Carolyn, produced her hostility toward
them. Marion argues that in reaching the conclusion it did, the probate court disregarded Arizona
law and substituted a rule that even when a testator is found to have known the natural objects of
her bounty, a will may be rejected on a showing that the testator’s subjective perceptions of one of
those persons has been affected by a paranoid delusion concerning that individual.
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The policy of the law favors testacy. In re Walters’ Estate, 77 Ariz. 122, 125, 267 P.2d 896, 898 (1954).
Thus, the law presumes that a testator had the requisite mental capacity to execute a will. In re
Vermeersch’s Estate, 109 Ariz. 125, 128, 506 P.2d 256, 259 (1973); Matter of Estate of Thorpe, 152 Ariz.
341, 732 P.2d 571, 573 (App.1986). The contestant of a will has the burden of showing by a
preponderance of the evidence that the testator lacked testamentary capacity at the time the will was
executed. Walters’ Estate, 77 Ariz. at 125, 267 P.2d 898. The contestant must produce evidence
sufficient to rebut the presumption of testamentary capacity. Id. It is our duty to carefully scrutinize
a probate court ruling that a will is invalid and to set aside the ruling if the evidence is not sufficient
to support it. Id.
The court considers the testator’s capacity as it existed at the time the will was executed. In re Teel’s
Estate, 14 Ariz.App. 371, 373, 483 P.2d 603, 605 (1971). To invalidate a will for lack of testamentary
capacity, the contestant must show that the testator lacked at least one of the following elements: (1)
the ability to know the nature and extent of his property; (2) the ability to know his relation to the
persons who are the natural objects of his bounty and whose interests are affected by the terms of
the instrument; or (3) the ability to understand the nature of the testamentary act. In re O’Connor’s
Estate, 74 Ariz. 248, 257, 246 P.2d 1063, 1070 (1952); Evans v. Liston, 116 Ariz. 218, 219, 568 P.2d
1116, 1117 (App.1977).
In addition, Arizona law recognizes that mental illness can render a person incapable of making a
valid will if the insanity is so broad as to produce general mental incompetence or a form of insanity
that causes hallucinations or delusions. In re Stitt’s Estate, 93 Ariz. 302, 305, 380 P.2d 601, 603 (1963);
Evans, 116 Ariz. at 220, 568 P.2d at 1118. To invalidate a will, however, the will must be a product of
the hallucinations or delusions; in other words, the hallucinations or delusions must have influenced
the creation and terms of the will such that the testator devised his property in a way that he would
not have done except for the delusions. O’Connor’s Estate, 74 Ariz. at 258, 246 P.2d at 1069-70
(quoting In re Greene’s Estate, 40 Ariz. 274, 11 P.2d 947 (1932)); Evans, 116 Ariz. at 220, 568 P.2d at
1118. Furthermore, a generally deteriorating mental condition, eccentricities, idiosyncracies, or
mental slowness and poor memory associated with old age do not necessarily destroy testamentary
capacity. Stitt’s, 93 Ariz. at 306, 380 P.2d at 603 (quoting In re Wright’s Estate, 7 Cal.2d 348, 60 P.2d
434, 438 (1936)); Thorpe, 152 Ariz. at 348, 732 P.2d at 578; Evans, 116 Ariz. at 219-20, 568 P.2d at
1118.
Arizona does not have a reported case in which a court has found that the testator’s insane delusions
at the time of execution of the will rendered it invalid. However, application of Arizona law leads to
the conclusion that even if the testator has apparent testamentary capacity under the three-prong
test, the will is nonetheless invalid if an insane delusion affects the terms of the will related to one of
the requirements. The court in Matter of Will of Maynard, 64 N.C.App. 211, 307 S.E.2d 416, 430
(1983) (quoting Wiggins, Wills and Administration of Estates in North Carolina, § 47, pp. 65–66 (2d ed.
1983)), explained this rule as follows:
“If a person has sufficient mental ability to make a will but is subject to an insane delusion, i.e.,
monomania, as to one of the essential requirements of testamentary capacity, the will would not
be valid. For example, if the testator has an insane delusion as to the objects of his bounty, it
would invalidate his will.
******
An insane delusion must be distinguished from prejudice, hate, bad judgment, ill will, and any
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number of other conditions which might be associated with sanity. To be sufficient to invalidate
the will, the delusion must have no foundation in fact and must be the product of the testator’s
diseased or deranged mind.”
The court in Kirkpatrick v. United Bank of Benton, 269 Ark. 970, 601 S.E.2d 607, 609 (1980), noted that
the settled law is that “while an individual may possess the requisite testamentary capacity, he may, at
the same time, be laboring under one or more insane delusions which may have the effect of making
his purported will a nullity.” See also In re Dovci’s Estate, 174 Pa Super. 266, 101 A.2d 449, 451
(1953)(if testator is of sound mind regarding general dealings but is under insane delusion that
affects terms of his will, will is invalid); Matter of Estate of Kesler, 702 P.2d 86, 88 (Utah 1985) (insane
delusion that affects one’s understanding of the natural objects of one’s bounty and materially
affects disposition of one’s property may invalidate a will).
Accordingly, if the testator is eccentric or mean-spirited and dislikes family members for no good
reason, but otherwise meets the three-prong capacity test, leaving the family members out of the will
would not be due to lack of testamentary capacity. See Stitt’s. However, when mental illness that
produces insane delusions renders the testator unable to evaluate or understand his relationships
with the natural objects of his bounty and this inability affects the terms of his will, the testator lacks
the mental capacity to make a valid will. Thus, we examine the evidence produced in the probate
court to determine whether it is sufficient to support the conclusion that Killen suffered from a
delusionary condition that affected the provisions of her will. See Thorpe, 152 Ariz. at 343, 732 P.2d at
573 (in will contest, appellate court may properly examine evidence to determine whether it is legally
sufficient.)
Two of the psychiatrists who examined Killen, one eight days before she executed the will and the
other twenty-one months later, testified that at the time she executed her February 18, 1988 will she
was suffering from a delusional paranoid disorder. Dr. Patel testified that her delusional condition
was permanent and that she could not have had a lucid interval. Dr. Don testified that it would be
highly unusual for Killen to have a lucid day or moment and that delusions never go into remission,
even with treatment.
The records of the psychiatrist who examined Killen a few weeks after she made her will show that
he found her to have persecutory delusions and to be mentally incapacitated. Although no
psychiatrist examined Killen on the day she executed her will, the court may consider evidence of
her mental capacity before or after her execution of the will to show her state of mind at the time
she executed the will. See O’Connor’s Estate, 74 Ariz. at 257, 246 P.2d at 1070; Thorpe, 152 Ariz. at
344, 732 P.2d at 574. 0Thus, the evidence clearly supports the trial court’s finding that Killen was
suffering from a psychotic mental illness diagnosed as delusional paranoid disorder on the day she
executed her will.
Likewise, the evidence supports the conclusion that when she signed her will, Killen was operating
under insane delusions about Russell, R.C., and Carolyn, and her delusions controlled her perception
of those persons and her treatment of them in her will. Dr. Patel testified that Killen’s delusional
disorder affected her ability to perceive her family members and friends. According to Dr. Don,
Killen’s animosity toward Russell, R.C., and Carolyn was completely based on her delusional belief
system, and it was this delusion-based animosity that caused her to leave them only one dollar each
in her will. He testified that although Killen knew who the natural objects of her bounty were, due
to her illness she had a skewed perception of the roles of those people in her life. Thus, the expert
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testimony supported the conclusion that Killen’s delusions controlled her disposition of her
property.
Furthermore, the evidence clearly supports the finding that Killen’s delusions about Russell, R.C.,
and Carolyn were without foundation or basis in fact.2 She believed that they stayed in her attic,
sprayed chemicals and parasites from the attic, were trying to poison her, were trying to take her
property, and were in the Mafia. Some of her beliefs were too bizarre to be real. As to those that
might be theoretically plausible, there was no evidence that Killen’s nephews and niece had ever
tried to harm her in any way or to take anything from her. Therefore, the court’s finding that
Killen’s delusional beliefs about her nephews and niece were without foundation or basis in fact is
supported by the evidence.
The only evidence contrary to the court’s finding was the opinion of Dr. Bendheim that although
Killen suffered from paranoid delusion disorder, she had testamentary capacity because she satisfied
the three-prong test. However, in light of the law that an insane delusion may render a will invalid
despite apparent capacity under the test, the probate court did not err in rejecting Dr. Bendheim’s
opinion.
As noted above, Marion argues that there is no proof that it was solely Killen’s delusions that
produced her hostility toward Russell, R.C., and Carolyn. If Killen had not suffered from insane
delusions, she might have disliked them for a rational reason. However, Marion’s position is
rebutted by Dr. Don’s testimony. There is no way of knowing what Killen might have felt without
the delusions. The evidence shows that Killen’s feelings toward Russell, R.C., and Carolyn were
controlled by her delusions. Therefore, because this mental impairment did not allow her a rational
and lucid view of her relationships, in a legal sense, she did not have the mental capacity required to
make a will.
What might have been if she did not suffer from delusions cannot control in such a situation as it
would be mere speculation; what does control is the fact that her paranoid delusions prevented her
from appreciating her relationships with the natural objects of her bounty. This rule makes it
unnecessary to try to determine what was in Killen’s mind regarding her family members when she
made her will. If the evidence shows that the testator had unfounded insane delusions that affected
the terms of the will, the testator lacked the capacity to make a will; no inquiry into the testator’s
feelings or motivation is necessary.
Marion also argues that the evidence does not explain why Killen’s delusions focused on Russell
and, to a lesser extent, R.C. and Carolyn. He proposes that it may be because she rationally had
come to dislike and distrust them. However, there is no evidence that, at least since the last few
years of her husband’s life, Killen was able to rationally evaluate her relationships without delusional
interference. In addition, although none of the expert witnesses specifically testified as to why
Killen’s delusions focused on her husband and then on Russell, R.C., and Carolyn, the evidence
indicates that her delusions focused on the persons who were closest to her and who took care of
her. For example, Dr. Don reported that when he examined her in 1989, she believed that staff
members of the care center at which she was then living had rummaged through her possessions,
introduced noxious chemical substances into her room, poisoned her food, and bugged her room.
Most significantly for purposes of the will contest, her delusions focused on natural objects of her
bounty. If, for example, when she executed her will she had been living at the care center and her
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delusions had involved only staff at the care center, her delusionary condition would have not
impacted her testamentary capacity, and the will might have been valid. However, because her insane
delusions focused on natural objects of her bounty and thus materially affected her disposition of
her property, the court correctly found the will to be invalid.
In summary, we hold that if at the time of execution of a will the testator knew the natural objects of
her bounty but suffered from insane delusions that affected her perception of those persons and the
terms of the will, the testator did not have the requisite testamentary capacity and the will is invalid.
The evidence before the probate court supported its conclusion that Killen was suffering from such
a paranoid delusion when she executed her will and that the February 18, 1988 will is invalid.
Accordingly, we affirm the probate court’s order declaring the will to be invalid and withdrawing it
from probate.

Matter of Estate of Watlack, 945 P.2d 1154 (Wash. App. 1997)
KURTZ, Judge.
Between March 26, 1988, and June 22, 1988, Stephen Watlack executed two wills. The first will
named his children as beneficiaries and the second will disinherited them in favor of the children of
his favorite brother. The trial court set aside the second will as the product of an insane delusion and
admitted the first will to probate. The personal representative and beneficiaries of the second will
appeal. We hold that the facts support the trial court’s conclusion that Mr. Watlack was suffering
from an insane delusion at the time he executed the second will.
FACTS
Stephen Watlack was born on August 3, 1902. He was divorced in 1963, and thereafter maintained
only sporadic contact with his two children David Watlack and Dawn Freeman. In March 1988,
Dawn 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
$100,000 of cash, which Mr. Watlack believed Ms. Gregory’s nephew, Gordon Scott, had taken. At
the same time, Mr. Watlack had a delusion that Mr. Scott had hit him over the head. Mr. Watlack
made an attempt to attack Mr. Scott with an ax as a result of this delusion.
This dispute led to litigation between Mr. Watlack and Ms. Gregory and Mr. Scott. The parties
negotiated a settlement wherein Mr. Watlack received his home in Falbrook, California, and a 1983
Lincoln automobile. As part of the settlement, he agreed to release all of his claims against Ms.
Gregory and Mr. Scott and to drop criminal charges. At this time, it was also determined that Mr.
Watlack would sell his home and return to Starbuck, Washington, to live with his daughter.
On March 26, 1988, Mr. Watlack executed a will while still a resident of California, designating his
two children as the sole beneficiaries. A prior will designated Ms. Gregory as the beneficiary.
In April 1988, prior to returning to Starbuck, Washington, Mr. Watlack transferred ownership of his
1983 Lincoln to Dawn Freeman and placed his home in California for sale. He opened a joint
checking account in Dayton, Washington, with Ms. Freeman. In May 1988, he gave Ms. Freeman
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$200 to purchase clothes for herself and her children. He subsequently accused her of stealing the
$200.
At this time, he was constantly talking about what he would do with the proceeds from the sale of
his house. His house sold and a check for $98,000 was issued on May 31, 1988. When Mr. Watlack
inquired about this money, Ms. Freeman told him she had not yet received it. Ms. Freeman had in
fact arranged for the check to be held in California. She did not intend to permanently deprive or
misappropriate Mr. Watlack’s funds, but was fearful that if the check came in the mail, he would
cash it, leave, and dissipate the funds. At no point, did Mr. Watlack authorize Ms. Freeman to take
control of the proceeds of his house sale.
Mr. Watlack moved from the Freeman home in the latter part of May 1988. At that time, he was
angry with Ms. Freeman. He accused her of being a thief, and stated he wanted to return to the sea.
Thereafter, he lived in a motel for a few days, and then lived in a foster home run by Mr. and Mrs.
Sanford until he was placed in a nursing home in Walla Walla in September 1989. Ms. Freeman and
her husband attempted to visit Mr. Watlack at the foster home on May 29, 1988, but he became
extremely angry and accused them of stealing his money. The Sanfords requested that they not
return as it was too upsetting.
Ms. Freeman returned from a trip to California on June 17, 1988, and promptly turned the sale
proceeds check over to Dayton attorney Terry Nealey. Initially, she had contacted Mr. Nealey on
May 5 about a real estate matter concerning Mr. Watlack and thereafter on May 25, to inquire about
a guardianship for him. She was concerned about his desire to take his money and return to the sea,
and his desire to obtain revenge against Mr. Scott. She was also concerned that someone would take
his money. At that time, Mr. Nealey agreed to represent her with respect to the guardianship for her
father.
In the meantime, on June 15, 1988, Mr. Watlack asked Mrs. Sanford to make an appointment for
him with an attorney. He wanted to change his will. Acquainted with Mr. Nealey, she scheduled an
appointment for June 17. During this meeting, Mr. Watlack identified his family members, including
his children and niece and nephews, and named the niece and nephews as the sole beneficiaries
because they were the children of his favorite brother. None of these relatives visited him in
Washington or came to his funeral. One of them, Audrey Watlack, visited him in California in April
1988, when he had his dispute with Ms. Gregory. At the time of his meeting with Mr. Nealey, Mr.
Watlack stated that he did not want to leave his son and daughter anything. He expressed his anger
with Ms. Freeman and again accused her of stealing money from him. The provision in the will
disinheriting Mr. Watlack’s children stated that they were to receive nothing because he had spent
very little time with them and had previously given Ms. Freeman his 1983 Lincoln.
On June 21, 1988, Ms. Freeman and her husband met with Mr. Nealey to discuss Mr. Watlack’s
guardianship. At this time, Ms. Freeman turned over the check for $98,000 and the bank account
cashier’s check for $1,500. Later that day, Mr. Watlack returned to Mr. Nealey’s office to sign his
will. Mr. Nealey then disclosed to Mr. Watlack that Ms. Freeman had delivered to him the $98,000
check, and a cashier’s check for $1,500 from his bank account. He also advised Mr. Watlack of the
guardianship petition. Mr. Watlack agreed to the guardianship so long as Mrs. Sanford was
appointed as his guardian. Mr. Watlack requested that the check for $98,000 be placed into an
interest bearing account.
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The next day Mr. Watlack returned to Mr. Nealey’s office to sign his new will. Angry and pounding
the desk, Mr. Watlack again accused his children of stealing the money now in Mr. Nealey’s
possession. Concerned about his capacity to make a will, Mr. Nealey tried to calm his client.
Although agitated, Mr. Watlack had testamentary capacity at the time of the signing of the June 22,
1988, will. Nonetheless, on that date he still held the false belief that Ms. Freeman had stolen money
from him and continued to accuse her of taking the money. From at least March 1988 through the
date of his eventual death, Mr. Watlack suffered from this and other insane delusions.
The guardianship was commenced in superior court on June 22, 1988. The guardian permitted Mr.
Watlack to maintain a checking account until September 1989, to which his pension was deposited
and personal expenses, including foster home charges, were deducted. Mr. Watlack had a habit of
stashing cash and this behavior continued while he lived in Washington. Out of money from his
checking account, he accumulated more than $2,000 hidden under his mattress that was discovered
when he went to a nursing home in Walla Walla in September 1989.
Mr. Watlack died on December 16, 1993, in Walla Walla. Ms. Freeman petitioned the court to admit
his will dated March 26, 1988, and Audrey Watlack, Mr. Watlack’s niece, filed an objection and
petitioned the court to admit his will dated June 22, 1988. After a trial, the court made all of the
findings recited in this summary of the facts. Based on these findings, the court determined Mr.
Watlack had suffered from an insane delusion at the time he executed the June 22, 1988, will.
The court admitted to probate the March 26, 1988, will designating Mr. Watlack’s children as the
sole beneficiaries. Dorothy Sanford, as the personal representative of the will dated June 22, 1988,
and Mr. Watlack’s niece and nephews appealed.
ANALYSIS
Mr. Watlack’s children contend this appeal should be dismissed because the appellants did not file a
report of proceedings, citing Heilman v. Wentworth, 18 Wash.App. 751, 571 P.2d 963 (1977), review
denied, 90 Wash.2d 1004 (1978) and City of Seattle v. Torkar, 25 Wash.App. 476, 610 P.2d 379, review
denied, 94 Wash.2d 1001 (1980). These cases are distinguishable because they involved incomplete
records that were insufficient for adequate review by the appellate court. Here, appellants are not
asserting any factual challenges, but are challenging whether the conclusions are supported by the
court’s findings. RAP 9.1(a) provides that the record on review may consist of a report of
proceedings but does not make the filing of such a report mandatory. Because the clerk’s papers and
findings of fact and conclusions of law provide a sufficient record for review here, the filing of a
report of proceedings was not necessary. These unchallenged findings of fact are verities on appeal.
Our review is limited to determining whether the conclusions of law are supported by findings of
fact. Holland v. Boeing Co., 90 Wash.2d 384, 390, 583 P.2d 621 (1978).
As will contestants, Mr. Watlack’s children have the burden of establishing the will’s invalidity by
clear, cogent, and convincing evidence. In re Estate of Meagher, 60 Wash.2d 691, 692, 375 P.2d 148
(1962), A person may be insane regarding a certain subject and have one or more delusions, but
despite such deficiencies that person may have testamentary capacity. In re Estate of O’Neil, 35
Wash.2d 325, 334, 212 P.2d 823 (1949). A will may be invalidated if it is shown by clear, cogent, and
convincing evidence that at the time the will was executed, the testator was laboring under insane
delusions that materially affected the disposition of the will. Meagher, 60 Wash.2d at 692, 375 P.2d
148. Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown by the
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evidence to be highly probable. In re Dependency of K.R., 128 Wash.2d 129, 141, 904 P.2d 1132 (1995).
An “insane delusion” is not well defined by case law. It has been defined as a false belief, which
would be incredible in the same circumstances to the victim if he was of sound mind, and from
which he cannot be dissuaded by any evidence or argument. In re Estate of Klein, 28 Wash.2d 456,
472, 183 P.2d 518 (1947). It was later described as a condition of such “aberration as indicates an
unsound or deranged condition of the mental faculties....” Meagher, 60 Wash.2d at 693, 375 P.2d 148
(quoting Owen v. Crumbaugh, 228 Ill. 380, 81 N.E. 1044, 1051 (1907)). A belief resulting from a
process of reasoning from existing facts will not be an insane delusion, regardless of whether the
reasoning is imperfect or the conclusion illogical. Meagher, 60 Wash.2d at 693, 375 P.2d 148.
Mrs. Sanford first challenges conclusions of law 4 and 6, wherein the court determined Mr. Watlack
had no rational basis to believe Ms. Freeman had stolen the house proceeds or other monies from
him as of the afternoon of June 21, 1988. These conclusions are supported by the court’s findings
that Mr. Nealey disclosed to Mr. Watlack the day before the execution of his will, the fact that Ms.
Freeman had obtained and delivered to his office the $98,000 house proceeds check and a $1,500
check from Mr. Watlack’s bank account; Mr. Watlack specifically requested the check be placed in
an interest bearing account later that day; at the time of the will signing, he continued to accuse her
of stealing the money even though he was aware the check was in his attorney’s possession; and Mr.
Watlack had given Ms. Freeman $200 for clothing in May 1988 and later accused her of stealing the
money.
She also challenges conclusion of law 5, wherein the court determined Mr. Watlack was suffering
from an insane delusion at the time he executed the June 22, 1988, will. The court found Mr.
Watlack was very agitated and angry at the time he signed his will on June 22, 1988, because he
falsely believed Ms. Freeman had stolen money from him even though he knew the proceeds check
was in the possession of his attorney. Likewise, the court found Mr. Nealey had informed Mr.
Watlack that Ms. Freeman had delivered the proceeds check to his office on June 21, 1988, yet Mr.
Watlack continued to believe Ms. Freeman had stolen the money. Mr. Watlack’s continued
adherence to this false belief despite all evidence to the contrary which was presented to him
constituted an insane delusion. The court’s conclusion that he was suffering from this insane
delusion during the execution of the will is supported by the findings.
Mrs. Sanford next challenges conclusion of law 7, wherein the court determined Mr. Watlack had
not put aside his insane delusions when he made the will on June 22, 1988. This conclusion is
directly supported by the court’s findings that Mr. Watlack suffered from insane delusions from at
least March 1988 through the date of his death, became angry at the will signing because he falsely
believed Ms. Freeman had stolen his money and continued to accuse her of such on that date, and
continued to make accusations of her stealing the money long after his guardianship was established
in June 1988.
Finally, Mrs. Sanford challenges conclusion of law 8, wherein the court determined Ms. Freeman
and her brother David Watlack were disinherited based upon Mr. Watlack’s extreme anger caused by
an insane delusion and not on the basis that he had little contact with them or that he had previously
given Ms. Freeman his car. Mrs. Sanford contends these reasons supply other motives for the
disposition made, and Ms. Freeman did not establish the insane delusion was the controlling factor
in the disposition.
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This contention, however, is not supported by the court’s findings that Mr. Watlack made
arrangements to see an attorney about a new will shortly after an outburst with the Freemans
wherein he accused them of stealing his money; while meeting with Mr. Nealey about the will, he
stated he did not want to leave his children anything and again accused his daughter of stealing his
money; and at the will signing again became agitated and angry with his daughter, pounding his fist
on the desk and accusing her of stealing his money. Instead, the facts here indicate Mr. Watlack’s
insane delusion was the controlling reason for the new disposition in his June 22, 1988, will. In
summary, the findings of fact support the conclusion that the June 22, 1988, will is a product of an
insane delusion.
HOLDING
The judgment of the trial court is affirmed.
Notes, Problems, and Questions
1. Any person can be delusional and still be capable of executing a will. The problem occurs when
the delusion is insane and the manner in which the testator distributes her property is influenced by
that delusion. Hence, when evaluating the cases, you need to engage in a three step analysis. First,
you must identify the delusion. Second, you must decide whether or not that delusion is insane.
Insanity is not a psychological term; it is a legal term.88 A delusion is insane if the person holds on to
the belief despite facts to the contrary. Third, you must determine whether or not the insane
delusion was the motivating factor behind the testator’s decision to dispose of his or her property in
a certain way. Review the facts of the two cases in this section and do the three step analysis. Did
you come out with the same result as the courts?
Class Discussion Tools
(a) 75 year old Jillian met with a lawyer to have him draft her will. During the initial interview, Jillian
told the lawyer that she wanted to leave her house to Mr. Giggles. When the lawyer asked for Mr.
Giggles’ address, Jillian opened up a box and produced a small monkey dressed in a black and red
leather suit. Jillian said, “Say hello to the man Mr. Giggles.” Jillian stated that she wanted to leave the
house to Mr. Giggles so that he could have some place to live after she died. She also said that she
was disinheriting her only daughter, Anne, because Anne was trying to kill Mr. Giggles. What should
the lawyer do? If he executes the will, what are the chances that Anne will be able to successfully
challenge Jillian’s capacity? What additional information do you need to answer this question?
(b) Roger, a 77 year old widow, suffered from anxiety disorder. In addition to therapy, Roger’s
doctor gave him a prescription for medical marijuana and told him to smoke two joints a day. Roger
had three children, Lester, Nathan and Charmaine. Every morning Charmaine made Roger a green
smoothie. She put powered wheatgrass in the smoothie to give Roger an energy boost. Diane,
Roger’s neighbor, told him that she heard Dr. Oz say that wheatgrass caused cancer. Diane wore a
hearing aid, so she missed the fact that Dr. Oz actually said that wheatgrass helped prevent cancer.
Roger refused to drink the smoothie if Charmaine put the wheatgrass in it, so Charmaine started
88

Doughtery v. Rubenstein, 914 A.2d 184, 193-94 (Md. 2007).

436

slipping the wheatgrass on his salads. One day, Roger saw Charmaine sprinkle something on his
salad. He told Lester that Charmaine was trying to kill him. Lester confronted Charmaine and she
told him that she put wheatgrass on Roger’s salad to give him energy. In order to convince Roger
that she was not trying to kill him. Charmaine sprinkled the wheatgrass on the salad and ate half of
it. In response, Roger said, “You took the anecdote to the poison, so you won’t die. The moment I
eat it I’m a goner.” Lester had the powder analyzed at a private lab and showed Roger the results. In
response, Roger said, “You’re in it with her. You are both dead to me.” The next day, Roger
changed his will, and left his entire estate to Nathan. After Roger died, Lester and Charmaine filed
an action to set aside the will because it was a product of an insane delusion. What are the strongest
arguments on each side? How might the court decide the case?
(c) Paige was a ninety-two year old widow who still maintained her own home. She had two sons
Clyde and Beau, and a daughter Jeannette. Paige’s son, Jackson, predeceased her; Jackson was
survived by a wife, Marie, and two children, Bernard and Lillie. Because of her poor eyesight and a
degenerative muscle disease that caused her hands to shake, Paige relied solely on her unmarried
son, Beau, to pay her bills, to take her grocery shopping and to take her to doctor appointments.
Paige’s daughter, Jeannette lived in Spain. Paige refused to accept any assistance from Clyde because
he did not “do as he was told and divorce his wife, Janet.” Paige thought Clyde was weak, unduly
protective of Janet, and inattentive to Paige’s needs. Paige’s dislike of Janet stemmed from an
overheard telephone conversation between Janet and a man, which had taken place five years earlier.
Upon overhearing the conversation, Paige assumed Janet was having an affair with another man.
Paige confronted Clyde with the information. Clyde explained to Paige that the overheard telephone
conversation was between Janet and her brother, Alan, who was planning to visit them. He
explained that Janet was only arranging a time to pick Alan up from the airport. Clyde also tried to
explain to Paige that it was natural for Janet to tell her brother that she loved him. Although Clyde’s
version of the story was the truth, Paige refused to believe it. She insisted that Clyde divorce Janet.
Clyde refused to get a divorce, so Paige stopped speaking to him. On a trip to her doctor’s office,
accompanied by Beau, Paige indicated that, when she died, she wanted to leave all of her 1.2 million
dollar estate to Beau. Beau thanked Paige and told her that, unlike his brother Clyde who would
probably spend all of his mother’s money buying luxuries for Janet, he would truly appreciate the
property. At that time, Beau neglected to tell Paige that he was having an affair with Janet. Paige
changed her will and left her entire estate to Beau. She told her lawyer she was making the change
because Janet was an adulteress. After Paige died, Clyde and Jeannette filed an action to set aside the
will because it was a product of an insane delusion. What are the strongest arguments on each side?
How might the court decide the case?
(d) Amanda Nelson, a 52 year old single woman, was a member of a religious sect called Keepers of
the Light. Amanda and other members of the religion worshiped Yaka, a firefly, and his children.
The group believed that one day they would be rewarded by being physically transformed into his
image. Phillip, the head of the sect, told the members that in order to receive their reward, they had
to leave all of their worldly goods to Keepers of the Light. Thus, Amanda executed a will leaving her
entire 20 million dollar estate to Phillip. After Amanda died, her sisters, Tina and Carmen, filed an
action challenging the validity of her will. What is the possible outcome?

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Chapter Ten: Testamentary Capacity (Undue Influence, Duress and Fraud)
10.1

Introduction

A testator’s ability to execute a will may be negatively impacted by the actions of third
parties. The cases in this chapter involve situations where third parties attempt to manipulate the
testator in some way. The level of influence that the third party exerts on the testator varies.
Nonetheless, the third party’s motivation is to get the testator to execute a will that reflects his or
her desires instead of the testator’s wishes. The three most common types of manipulations include
undue influence, duress and fraud. Since duress is a form of undue influence, the concepts will be
discussed in the same section. Following the discussion of undue influence and duress, the chapter
includes an examination of fraud. The chapter ends with a discussion of a relatively new tort,
intentional interference with an inheritance expectancy.
10.2

Undue Influence/Duress

The law does not expect a testator to make estate planning decisions in isolation. Given
family dynamics, it is understandable that the testator may discuss his or her estate planning ideas
with family members. In addition, it is not uncommon for a testator to have a closer relationship
with some family members than he or she has with others. Thus, the testator is bound to be
influenced by the opinions of some members of his or her family. Under the law, some influence is
acceptable; problems occur when the testator is unduly influenced. The legislatures and the courts
have not provided a bright line rule for determining how much influence is too much. The test is
whether such control was exercised over the mind of the testator as to overcome his or her free
agency and to substitute the will of another person so as to cause the testator to do what he or she
would not have done had the influence not existed.
10.2.1 Presumption of Undue Influence
Normally, the person who is challenging the will has the burden of proving that the will was
a product of undue influence. This changes if a presumption of undue influence arises. The person
contesting the will can establish a presumption of undue influence if he or she is able to show (1) the
existence of a confidential relationship; (2) the persons with the confidential relationship received
the bulk of the estate; and (3) the testator had a weakened intellect. All three of these elements are
subjective and evaluated on a case-by-case basis. If the court finds a presumption of undue
influence, the burden shifts to the proponent of the will. That person has to overcome the
presumption by providing clear and convincing evidence that he or she acted in good faith. A
presumption of undue influence may also arise when an attorney receives a bequest under the terms
of a will that he drafts unless he or she is closely related to the testator.

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Noblin v. Burgess, 54 So.3d 282 (Miss. 2010)
MAXWELL, J., for the Court:
Robert H. “Bob” Noblin executed his last will and testament only hours before his death. The
proponents of the will and the sole beneficiaries under it, Sammy Burgess and Sheila McDill,
initiated probate proceedings in Smith County. Noblin’s numerous heirs at law contested the will,
asserting it was the product of undue influence. The trial court granted the contestants’ request for a
jury trial, and the jury returned a verdict in favor of the proponents.
On appeal, the contestants contend that a confidential relationship existed between the testator and
the proponents, raising a presumption of undue influence. They argue the proponents failed as a
matter of law to overcome this presumption by clear and convincing evidence. In the alternative, the
contestants claim the trial court erred in peremptorily instructing the jury that the testator possessed
testamentary capacity. They also argue the trial court erred in failing to grant their proposed
peremptory instruction, which would have directed the jury to find the existence of a confidential
relationship.
We find no reversible error and affirm.
FACTS
Noblin died in the early morning hours of October 3, 2003. He left behind no close “blood”
relatives. Noblin’s closest relatives by consanguinity appear to be an aunt and an uncle. His uncle is
one of the contestants along with multiple first cousins. The proponents, Burgess and McDill, are
Noblin’s stepchildren. Noblin’s only wife, who passed away in 1994, was the natural mother of
Burgess and McDill. But because Noblin never adopted Burgess or McDill, they bear no relationship
to him under Mississippi’s law of intestate succession.
Although Noblin did not make a will until the final hours of his life, he had named Burgess and
McDill as contingent beneficiaries (entitled to payment if his spouse predeceased him) on his
individual retirement accounts (IRAs) and certificates of deposit. In 1989, Noblin listed Burgess and
McDill as his “son” and “daughter” on his IRA applications.
On September 23, 2003, Burgess took Noblin to see a doctor because Noblin had been having
physical problems. Burgess later took Noblin to Lackey Memorial Hospital in Forest, Mississippi.
While there, Noblin’s doctors determined he had widespread liver and pancreatic cancer. Shortly
after this diagnosis, Burgess drove Noblin to Baptist Hospital in Jackson, Mississippi. Soon after
Noblin’s arrival, his physicians determined he had no treatment options other than taking
medication to control his pain. Noblin remained at Baptist Hospital from September 29 until he
died on October 3. Burgess and McDill attended to Noblin during these five days and took turns
spending the night with him.
On October 1, 2003, Burgess called Todd Sorey, an attorney back home in Smith County. The call
was placed from Noblin’s hospital room, where only Noblin and Burgess were present. According
to Burgess, he contacted Sorey at Noblin’s request. Burgess asked Sorey to draft Noblin’s will, and
Sorey agreed to do so. Both McDill and Burgess testified that it was Noblin’s idea, and not their
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own, to make the will. Noblin never spoke with Sorey directly over the phone. Instead, Burgess
talked to Sorey on the phone and relayed information back and forth between Sorey and Noblin.
According to Burgess, McDill, and Sorey, Noblin had a severe hearing problem and was unable to
personally speak to Sorey over the telephone.
Sorey testified he could hear Noblin responding to his questions. He also heard Noblin speaking
about the information he wanted in his will. According to Sorey, he had known Noblin most of his
life and was familiar with his voice. Sorey claimed that he could hear Noblin’s voice over the phone.
He recognized the tone, vernacular, and accent as Noblin’s. Sorey maintained he had no doubt that
he was speaking to Noblin, albeit with Burgess as an intermediary. Sorey testified that he heard
Noblin express his desire to leave all his property to Burgess and McDill.
After this phone conversation, Sorey drafted a will leaving Noblin’s entire estate to Burgess and
McDill. McDill picked up the will at Sorey’s office on October 2 and brought it back to the hospital
in Jackson. Burgess then asked Noblin’s nurse, Lynn Thornton, to find hospital employees to
witness the will. Thornton herself agreed to witness the will. She recruited Corley Callum, also a
registered nurse, to fill the role of the other attesting witness.
Of the two attesting witnesses, only Callum testified at trial. According to Callum, immediately
before witnessing the will, she had a conversation with Noblin. Though she could not remember the
exact exchange, she satisfied herself that Noblin’s will reflected his intent. Callum testified that
through her conversations with Noblin at the time the will was executed, she was able to verify that
“what was taking place was what he wanted to do.”
Noblin executed his will on the afternoon of October 2 sometime between 12:00 p.m. and 3:00 p.m.
He died at 12:10 a.m. on October 3.
PROCEEDINGS AND DISPOSITION IN THE TRIAL COURT
Following Noblin’s death, Burgess and McDill initiated probate proceedings in the Smith County
Chancery Court. The contestants filed a will contest and requested a jury trial. The chancellor then
transferred the case to Smith County Circuit Court, where a jury trial was held.
The trial judge granted a directed verdict in favor of the proponents on the issue of testamentary
capacity. The trial court later gave a peremptory instruction for the jury to find the testator
possessed the requisite capacity to make a will. The court, however, submitted to the jury the issues
of (1) whether a presumption of undue influence arose by virtue of a confidential relationship
between the testator and the proponents, and (2) whether clear and convincing evidence existed to
overcome the presumption of undue influence. The trial court denied the contestants’ request for a
peremptory instruction on issue (1).
Following a three-day trial, the jury found in favor of the proponents, and the trial court entered a
judgment reflecting the jury’s decision.
STANDARD OF REVIEW
In reviewing a jury verdict, we apply the following standard:
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[An appellate court] resolves all conflicts of evidence in the appellee’s favor and
determines all reasonable inferences from testimony given towards the appellee’s
position. Reversal occurs only where the facts presented are so overwhelming in
the appellant’s position that reasonable jurors could not have found for the
appellee. When an appellant challenges the sufficiency of evidence to support a
jury’s verdict, the appellate court’s scope of review is limited. All evidence must
be reviewed in the light most favorable to the appellee. An appellate court may
only reverse a jury verdict when the facts considered in that light point so
overwhelmingly to the appellant’s position that reasonable men could not have
arrived at a contrary verdict. In the event that evidence is conflicting, a jury is the
sole judge of the credibility of witnesses and the weight of their testimony.
In re Estate of Dabney v. Hataway, 740 So.2d 915, 919 (Miss. 1999) (internal citations and quotation
marks omitted).
DISCUSSION
I. Undue Influence
The contestants’ first and main contention is that the proponents presented insufficient evidence to
overcome the presumption of undue influence, which they allege arose by virtue of a confidential
relationship. On this ground, they ask this Court to reverse and render the judgment of the trial
court.
A. Presumption of Undue Influence
In Croft v. Alder, 237 Miss. 713, 115 So.2d 683 (1959), our supreme court crafted the confidential
relationship doctrine applicable to wills contested on the basis of undue influence. Robert A.
Weems, Wills and Administration of Estates in Mississippi § 8: 18 (3rd ed. 2003). The Croft court held a
presumption of undue influence arises where: (1) a confidential relationship existed between the
testator and a beneficiary, and (2) the beneficiary in the confidential relationship was actively
involved in some way with preparing or executing the will. Croft, 237 Miss. at 722-23, 115 So.2d at
686. A confidential relationship is present where “one person is in a position to exercise dominant
influence upon the other because of the latter’s dependency on the former arising either from
weakness of mind or body, or through trust.” In re Estate of Laughter v. Williams, 23 So.3d 1055, 1063
(Miss. 2009). (citation omitted).
B. Overcoming the Presumption of Undue Influence
Croft also established that once the required showing is made to raise the presumption of undue
influence, the burden shifts to the proponents to rebut the presumption by clear and convincing
evidence. Croft, 237 Miss. at 723, 115 So.2d at 686.
In order to overcome the presumption of undue influence, the proponents must show by clear and
convincing evidence: (1) the beneficiary acted in good faith; (2) the testator had “full knowledge and
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deliberation” in executing the will; and (3) the testator exhibited “independent consent and action.”
In re Last Will and Testament and Estate of Smith v. Averill, 722 So.2d 606, 612 (Miss. 1998). Factors to
be considered in assessing the beneficiary’s good faith include:
(1) who initiated the procurement of the will;
(2) where the testator executed the will and who was present at the execution;
(3) what consideration was paid and who paid it; and
(4) whether the execution was done in secrecy or openly.
See id. Factors to be assessed in determining the testator’s knowledge and deliberation in executing
the will include:
(1) whether the testator was aware of his total assets and their worth;
(2) whether the testator understood who his “natural inheritors” were;
(3) whether the testator understood how his action would legally affect prior wills;
(4) whether the testator knew non-relative beneficiaries would be included; and
(5) whether the testator knew who controlled his finances and the method used:
(a) how dependent the testator is on persons handling his finances; and
(b) how susceptible the testator is to be influenced by any such persons.
See id.
Regarding the testator’s “independent consent and action,” unlike the other two prongs, there is no
express list of factors. The supreme court has in the past required a showing that the testator acted
on “[a]dvice of ... [a] competent person, ... disconnected from the [beneficiary] and ... devoted
wholly to the ... testator’s interest.” Murray v. Laird, 446 So.2d 575, 578 (Miss. 1984). Though still a
relevant consideration, this requirement has been absolved by more recent precedent, which has
instead required “a showing of the grantor’s ‘independent consent and action’ based on all of the
surrounding facts and circumstances.” Vega v. Estate of Mullen, 583 So.2d 1259, 1264 (Miss. 1991).
1. Good Faith
Other than inferences that might be drawn from circumstances surrounding the will’s procurement,
the contestants produced no evidence that Burgess or McDill influenced Noblin’s decision to make
a will or suggested the terms of the will. In fact, the evidence points to the contrary. Burgess and
McDill both testified that the idea of making a will originated with Noblin. Burgess testified Noblin
wanted him to contact Sorey to draft a will. Sorey testified he could clearly identify Noblin’s voice
over the phone, and Noblin expressed his desire to leave all of his property to Burgess and McDill.
Sorey explained he was satisfied the will embodied Noblin’s wishes. And just prior to the will’s
execution, Callum had a conversation directly with Noblin. Through this conversation, she
ascertained the will’s provisions reflected his intent.
While we recognize much of this testimony is self-serving, our law is clear that witness credibility
determinations are for the jury. See, e.g., Solanki v. Ervin, 21 So.3d 552, 568 (Miss. 2009). Burgess,
McDill, and Sorey, in particular, were all vigorously cross-examined about the circumstances
surrounding the making of the will.
It is not disputed that Noblin executed his will in a hospital room. Noblin signed the will in the
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presence of Burgess and McDill, as well as the two subscribing witnesses, Callum and Thornton.
Gail Young, a hospital employee, was present to notarize documents. As to the consideration paid,
Sorey testified he would have sent the bill for Noblin to pay but was unable to do so. According to
Sorey, no one ever told him they would pay his fee for drafting the will, and no one ever paid it.
Finally, there is no indication the execution was done in secrecy. The issue here is not whether the
heirs had knowledge of the will’s execution, but whether the “the physical place the will was
executed was in plain view of the witnesses.” Estate of Smith, 722 So.2d at 613. Here, Callum testified
she saw Noblin sign the will. The contestants offered no contrary evidence to show the execution
was in any way concealed from the view of the attesting witnesses or done in a secretive manner.
2. Knowledge and Deliberation
Under this prong, the proponents offered a great deal of evidence that Noblin managed and
controlled his own personal affairs and finances. At least eight witnesses testified in support of the
fact that Noblin was an extraordinarily independent person. Several of the contestants even testified
to this fact. For example, contestant Henry Clay Noblin described Noblin as an “independent[ ]
loaner [sic], off to his self [sic] fellow, [who] did his own work.” According to contestant Diane
Boykin, Noblin “made up his own mind about things,” and “[i]t was his way or no way. So, if you
asked him something and he answered, that was ... law.” Finally, contestant Ronnie Noblin
described Noblin as “strong-willed.”
Two non-relative acquaintances of Noblin’s also echoed these sentiments. According to David
Gainey, who had known Noblin since childhood, Noblin “pretty much stuck to himself as far as his
business was concerned” and “made up his own mind.” Joe Rigby, a friend of Burgess’s, testified
that Noblin “was [the] kind of person that stayed to himself and took care of Bob.” As contestant
Boykin put it, Noblin had garnered the nickname—“one way Bob.”
According to McDill and Burgess, this independence extended to financial matters as well. Although
we find no specific proof of what Noblin knew of his total assets, the testimony of Burgess and
McDill supports that Noblin took care of his own finances. Both Burgess and McDill asserted they
did not own a joint account with Noblin or assist Noblin in writing checks.
There is little or no proof to show Noblin either did or did not understand who his intestate heirs
were. Also, no prior wills existed for the subject will to effect.
3. Independent Consent and Action
Again, other than inferences that might be drawn from the procurement of the will, especially from
Burgess’s telephone call to Sorey, the evidence points to the fact that Noblin exercised his own
independent consent and action with regard to the making of the will and its terms. Callum’s
testimony, as a disinterested person, is of course very significant on this factor. Callum testified to
the following:
Q: Okay. Once you walked into the room, did you have any conversations with Mr. Noblin?
A: I don’t remember the exact words or exact conversation that I had with Mr. Noblin, but I
did have a conversation with him, yes.
Q: Okay, what were your conversations about?
A: I’m sure the usual exchanges of, you know, hey, Mr. Noblin, how are you doing, that kind of
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thing took place originally; and then, you know, verifying that what was taking place was what
he wanted to do.
Q: Okay. And did you satisfy yourself that that’s what he wanted to do?
A: I did, through the questions that I asked him, yes.
Callum remained in the room for approximately thirty minutes during the execution of the will.
During cross-examination, Callum added, “I’m not going to sign my name to any document that I
feel is deceitful. I read the will [,] and I made my own judgment based on the questions that I asked
Mr. Noblin.” After reading the will, remaining in the room for half an hour, and having a
conversation with Noblin, Callum “satisfied [herself] knowing that [she] was doing what Mr. Noblin
wanted done.” She then observed Noblin sign his will.
Under these circumstances, we find a factual question on which reasonable minds could differ. The
trial court did not err in refusing to hold the presumption of undue influence could not be overcome
as a matter of law. The trial court properly submitted this issue to the jury.

In re Estate of Saucier, 908 So. 2d 883 (Miss. Ct. App. 2005)
ISHEE, J., for the Court.
This will contest was brought before the chancery court of Forrest County on August, 14, 2003,
when the Appellant, James Saucier (“Saucier”), the father of Jerry Saucier, deceased, filed his petition
to probate the will in common form. Appellee Susan W. Tatum (“Tatum”), filed her petition to
probate a will and letters testamentary of another will purported to be the last will and testament of
Jerry Saucier on August 18, 2003. On March 3, 2004, final judgment was entered in favor of Tatum
and the will she supported was entered into probate. Aggrieved by this judgment, Saucier appealed.
Finding no error, we affirm.
FACTS
The testator, Jerry Saucier (“Jerry”), was thirty-seven years of age at the time of his death on August
9, 2003. His death was the result of congestive heart failure due to alcoholic cardiomyopathy. During
his life, Jerry executed two documents which were later produced and submitted to probate. The
first will, later propounded by the Appellant, was a holographic document dated January 27, 2002.
The second will was a typewritten will dated January 27, 2003, leaving all of Jerry’s property, both
real and personal, to Tatum. There is no dispute as to the authenticity of the two wills presented for
probate.
Under the holographic will the balance of Jerry’s estate would have passed to his son, from whom
Jerry was estranged at the time of his death. At trial, Saucier challenged the second will put forth by
Tatum on the grounds that the will was the product of Tatum’s undue influence over Jerry at the
time it was executed. The facts presented at trial regarding the close relationship between Tatum and
the decedent established that Tatum provided care and assistance to Jerry as his health declined by,
for example, cleaning his house and by taking him to detoxification programs and psychiatric
appointments. Tatum and Jerry also dated at least one year prior to his death. Testimony at trial
illustrated that the pair saw each other every day of the year prior to his death, that they were
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physically intimate, and that at some point the pair had made plans to marry. Tatum was heavily
involved in preparing his will. Tatum located and provided the form used for the second will, and
accompanied Jerry to the bank where the instrument was executed. Upon learning that the will had
not been properly executed, Tatum brought Jerry to the bank a second time in order to affect a valid
execution.
After hearing all testimony in the matter, the trial court found that Tatum “played an instrumental
part in seeing that the will was created....” While Jerry admitted to his father that he consumed
approximately one-fifth of whisky a day, there was no testimony that Jerry was intoxicated at the
time of the preparation and execution of his will. Witnesses from the bank where the instrument was
executed provided that they thought Jerry was competent at the time of the execution, and that
while present, Tatum did not appear to be an active or interfering force in the execution of the will.
The judgment entered by the chancery court found that the will propounded by Tatum was not the
result of undue influence, and allowed the document to be entered into probate. Aggrieved by this
decision, Saucier asserts the following errors on appeal: (1) whether the chancery court erred in
failing to find that the second will was the product of undue influence by Tatum; and (2) whether
Tatum failed to rebut the presumption of undue influence by clear and convincing evidence.
ISSUES AND ANALYSIS
I. Whether the chancery court erred in failing to find that the second will was the product of
undue influence by Tatum.
Saucier asserts that the trial court erred in failing to find that second will was the product of undue
influence. Saucier asserts specifically that the relationship between Tatum and Jerry was confidential
and that Tatum was instrumental in the formation of the second will, thereby creating a presumption
of undue influence. We begin our analysis of this issue by noting the standard of review. “When
reviewing a chancellor’s legal findings, particularly involving the interpretation or construction of a
will, this Court will apply a de novo standard of review.” In re Last Will and Testament of Carney, 758
So.2d 1017, 1019 (Miss.2000). With respect to a chancellor’s findings of fact in a will contest, this
Court has held that it “will not disturb the findings of a chancellor unless he is manifestly wrong,
clearly erroneous, or applied an erroneous legal standard.” Goode v. Village of Woodgreen Homeowners
Ass’n, 662 So.2d 1064, 1070 (Miss. 1995).
“In an action contesting a will, a presumption of undue influence arises where there is a confidential
or fiduciary relationship.” In re Fankboner v. Pallatin, 638 So.2d 493, 495 (Miss. 1994) (citing Mullins v.
Ratcliff, 515 So.2d 1183, 1192 (Miss. 1987 “Suspicious circumstances, along with the confidential
relationship, also give rise to a presumption of undue influence.” Id. (Citing Estate of Lawler v. Weston,
451 So.2d 739, 741 (Miss. 1984)).
Saucier argues on appeal that a confidential relationship, as well as suspicious circumstances, created
such a presumption of undue influence in this case, and that as such, Tatum should have been
forced to rebut that presumption by clear and convincing evidence.
The factors utilized by this court to determine whether a confidential relationship existed are as
follows:
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(1) whether one person has been taken care of by others, (2) whether one person
maintains a close relationship with another, (3) whether one person is provided
transportation and has their medical care provided for by another, (4) whether
one person maintains joint accounts with another, (5) whether one is physically
or mentally weak, (6) whether one is of advanced age or poor health, and (7)
whether there exists a power of attorney between one and another.
In re Estate of Dabney, 740 So.2d 915, 919 (Miss.1999). In examining factor one, Tatum’s own
testimony established that she provided assistance and care to Jerry. However, in many instances,
despite his alcoholism, Jerry was capable of caring for himself in a manner common to functional
alcoholics. Because the parties saw each other on a daily basis, were physically intimate, and had
made some generalized plans to marry, these facts clearly indicate that a close relationship was
maintained between Jerry and Tatum in regards to factor two. While Tatum did provide
transportation for Jerry, most notably during the formation of the will, this was mostly due to the
fact that Jerry’s license had been suspended. There is some evidence to suggest that Tatum
transported Jerry to a handful of psychiatric appointments, and provided other more generalized
assistance as considered by factor three. As to factor four, there is no evidence to suggest that Jerry
and Tatum held joint accounts, although we note that Jerry entrusted Tatum with the keys to his
safety deposit box. As to factor five, Jerry was physically ravaged by his alcoholism. However,
whether Jerry was mentally weak presents a closer question. Saucier asserts on appeal that Jerry’s
liquor consumption, and a past incident where police were called to his home after a bout of
hallucinations evidences Jerry’s weakened mental state. Saucier also claims that Jerry “badly
mismanaged” some apartments owned by his father. Finally, Saucier cites the statement of Jerry’s
psychiatrist who observed that he was “shaky, tremulous,” and that Jerry “just seemed
uncomfortable.”
Tatum has put forth ample evidence to indicate that Jerry was fully capable of conducting his own
affairs, was able to manage his own business and employees, and for the most part was competent to
handle his own affairs. In fact, his own psychiatrist, Shannon Johnson, stated that Jerry was “in his
right mind.” Although Jerry evidenced specific instances of mental weakness, the weight of the
evidence mitigates against finding that he functioned within a continually weakened mental state. As
to factors six and seven, we note that Jerry was in a weakened physical state, and that no power of
attorney was granted to Tatum by Jerry.
Taking all of the Dabney factors as a whole, it is clear that the relationship between Jerry and Tatum
was confidential in nature. Furthermore, the chancellor found that Tatum was “a moving force” in
the creation of the second will. The confidential relationship of the parties and Tatum’s role in the
creation of the will suffice to create a presumption of undue influence. Furthermore, according to
Croft, Tatum’s status as a beneficiary under the will further bolsters this presumption. Croft, 115
So.2d at 686. Saucier is correct in stating that the chancellor failed to make any mention of this
presumption within his judgment. However, this failure to state this presumption within the
judgment or elsewhere in the record may not, in and of itself, compel us to hold that the chancellor
committed reversible error. “Even where the specific basis of a decision is not stated in the
chancellor’s opinion, the decision will not be disturbed if substantial evidence can be found in the
record.” M.C.M.J. v. C.E.J., 715 So.2d 774, 777 (Miss.1998). It is apparent from the chancellor’s
opinion that all of the requisite Dabney factors were considered within his deliberative process.
Although the chancellor did not specifically state that a presumption of undue influence arose,
substantial evidence of such can be found to support, at the very least, his consideration of the
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matter. We cannot say that the chancellor committed manifest error in his factual findings, and
further hold that any legal error by the chancellor in this regard constitutes harmless error. We
therefore must affirm the chancellor as to this issue.
II. Whether Tatum failed to rebut the presumption of undue influence by clear and
convincing evidence.
Saucier asserts in his second assignment of error that Tatum failed to rebut the presumption of
undue influence. In the case sub judice, due to the fact that the circumstances give rise to a
presumption of undue influence, the burden off going forward with the proof shifted to Tatum to
prove by clear and convincing evidence that (1) Tatum acted in good faith in the confidential
relationship with Jerry;
(2) Jerry acted with full knowledge and deliberation of his actions and their consequences when he
executed the second will; and (3) that Jerry exhibited independent consent and action. Murray v.
Laird, 446 So.2d 575, 578 (Miss. 1984) as modified by Mullins v. Ratcliff, 515 So.2d 1183, 1193 (Miss.
1987).
To determine whether Tatum acted in good faith, we must examine the facts surrounding the
procurement of the second will. It is undisputed that Tatum was instrumental in the drafting of the
will. However, she and Jerry worked together in this regard, and her role in drafting the will is not
alone determinative of bad faith. Numerous disinterested persons witnessed the signing of the will.
The first subscribing witness to the will, Teressa Rogers, an assistant manager at the bank, testified
that she questioned Jerry regarding whether the will represented his wishes, and whether he wanted
to sign the document. She further testified that Jerry answered both questions in the affirmative, and
that Jerry appeared to be in his right mind and was not intoxicated. The testimony of the second
subscribing witness, Jacque Forrester, was not heard as the parties stipulated that his testimony was
merely corroborative of the testimony of Rogers. “Secondly, the place of the execution of the will
and the persons in whose presence the will was executed are significant.” In re Will of Fankboner, 638
So.2d at 496. The second will of Jerry Saucier was executed in the open at a branch of the Union
Planters Bank before two disinterested subscribing witnesses and a notary public. “The third and
fourth factors are the consideration/fee that was paid and the identity of the person who paid the
fee.” Id. In this case, no consideration or fee was paid in the drafting of the will. The fifth and final
factor that should be considered to determine the “good faith” of Tatum is the secrecy and
openness given the execution of the will. Id. The evidence before us is clear that the execution of the
will was open and well observed. We therefore find substantial evidence that supports a finding that
Tatum acted in good faith.
We now turn to the question of whether Jerry acted with full knowledge and deliberation of his
actions and their consequences when he signed the will. The testimony of the subscribing witnesses
is again pertinent in this regard. All of the testimony provided regarding the signing of the will at the
bank indicated that Jerry was acting in accordance with his own wishes and of his own volition.
There is simply scant evidence to conclude that Tatum abused her relationship with Jerry either by
asserting dominance over him or by substituting her intent for his. See In re Estate of Sandlin v. Sandlin,
790 So.2d 850, 854 (Miss.Ct.App.2001) (discussing the level of influence that must be exerted over a
testator in order for the court to find undue influence). As to the third factor established in Murray,
we must determine whether Jerry exhibited independent consent and action. The evidence in this
case is legion toward establishing that Jerry exhibited independent consent and action, and that the
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second will represents his final wishes independent and free from of any undue influence by Tatum.
The evidence sub judice is clear and convincing in establishing that Tatum did not substitute her will
for Jerry’s, and any presumption to the contrary is clearly rebutted in accordance with the
requirements of Murray. This assignment of error is without merit.
The judgment of the Chancery Court of Forrest County is affirmed.
Problems
1. In 1998, Jill, a 76 year old widow, was diagnosed with chronic pain syndrome. As a consequence,
she received a special permit to smoke medical marijuana. She smoked a couple of joints three times
a day. Jill had two children, Bailey and Scott. In 1999, Jill met Lydia, the founder and president of
the Institute for Chronic Pain. The women became friends and Lydia did volunteer work for the
Institute. Lydia, Jill and Marcia, the secretary at the Institute, often had lunch together. According to
Marcia, during lunch one day in 2000, Lydia told Jill that if the Institute did not get more private
donations she would have to close it. In March of 2003, Jill mentioned to Lydia that she intended to
make a will. Lydia suggested that Jill contact Paul, Lydia's husband who was a private probate
attorney. On March 23, 2003, Paul prepared Jill's will, leaving her entire estate to the Institute for
Chronic Pain. On April 10, 2003, Jill was killed in a car accident. Bailey and Scott filed an action to
challenge the validity of the will. What is the possible outcome?
2. Before Samuel Mack, a rapper, released a new album he always consulted Madame Z, his psychic.
In 2007, Samuel was diagnosed with brain cancer. Madame Z gave Samuel several different types of
herbs to counteract the nausea he experienced because of his chemotherapy treatment. As Samuel’s
disease progressed, he became severely depressed and stopped associating with most of his friends
and family. Susan, Samuel’s wife, tried to get him to see a psychologist, but Samuel told her that he
could get all of the help that he needed from Madame Z. Madame Z gave Samuel herbs to ease his
depression. One day, Madame Z told Samuel that he had brain cancer because the universe was not
pleased with him. Madame Z predicted that Samuel would be cured if he started donating money to
charity. Samuel took Madame Z’s advice and gave 2 million dollars to an organization that provided
services to the poor. Two months later, Samuel’s doctors declared him to be cancer-free. After that,
Samuel would not make any decisions without consulting Madame Z. In 2010, Samuel was excited
when Susan gave birth to twin boys, Luke and Luther. In 2014, Samuel decided to execute a will. He
consulted Madame Z and asked her if she could recommend a good attorney. Madame Z pulled up
the yellow pages on the Internet, closed her eyes and touched the screen. Madame Z’s finger landed
on the name, Sigmund Taylor, a sole practitioner who prepared wills. Susan objected to the selection
of Sigmund because he had only been out of law school for two years. Madame Z insisted that
Sigmund was the one who should prepare Samuel’s will, so Samuel contacted him. Susan refused to
accompany Samuel to Sigmund’s office, so he took Madame Z with him. Madame Z stayed in the
waiting room while Samuel and Sigmund discussed the terms of the will. In 2015, Samuel was killed
when his private plane hit a mountain. At that time, Susan discovered that Samuel had left half of his
100 million dollar estate to Madame Z. Susan filed an action challenging the validity of the will.
What might be the possible outcome of the case?

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10.2.2 Undue Influence
If the presumption of undue influence does not arise or the proponent of the will is able to
overcome the presumption of undue influence, the contestant has the burden of proving all of the
elements of undue influence. To state a claim of undue influence the contestant must prove the
existence of the following: (1) the testator was susceptible to undue influence or domination by
another; (2) the person alleged to have committed the undue influence had the opportunity to
exercise it; (3) the person alleged to have committed the undue influence had a disposition to
influence for the purpose of personal benefit; and (4) the provisions of the will appear to be
unnatural and the result of such influence.

In re Estate of Schoppe, 710 N.W.2d 258 (Iowa Ct. App. 2005)
MILLER, J.
Brenda Edmunds and Bryan Schoppe appeal from a district court order, following a jury verdict,
that set aside the will of their father, Clair Schoppe. They contend the jury’s verdict, which found the
will was the result of undue influence, is not supported by substantial evidence. We affirm.
I. Background Facts and Proceedings.
Clair and Kay Schoppe were the parents of three children: Bryan Schoppe, Brenda Edmunds, and
Berwin Schoppe. In 1997 Clair and Kay executed “mirror wills.” Each will named the other spouse
as the primary beneficiary and, in the event the beneficiary spouse predeceased the testator, the
property left to the beneficiary spouse was to be divided equally between Brenda and Berwin, after a
specific bequest of $1,000 to Bryan. Kay was nominated as executor, and Brenda and Berwin were
nominated as contingent co-executors.
At or about the time the wills were executed, both Bryan and Brenda had moved out of the family
home. Berwin continued to live with his parents until his mother’s death in 2000. After Kay’s death
Berwin continued to live in the family home, taking care of the home and assisting Clair. Clair had
various health problems, and had always been disinclined to take care of his own health and hygiene
needs. Following his wife’s death Clair became even more reluctant to address these issues.
Clair’s mental acuity also appeared to decline after Kay’s death. Once highly adept at math, Clair
now had problems performing mental calculations. In addition, he occasionally seemed confused
and unfocused, and repeated statements and questions multiple times. However, he was still able to
conduct his own financial affairs, drive, and work as a dirt excavator.
In 2001 Clair Schoppe executed a new will. In it he made a specific bequest to Bryan of $10,000, and
provided Berwin a first option to purchase the acreage upon which they were living, including the
house and outbuildings, for $100,000. The remainder of Clair’s estate was to be divided equally
between Brenda and Berwin. Brenda was nominated as executor, and a bank as contingent executor.
In March 2002 Clair suffered a stroke. Following the stroke Clair appeared to suffer an even greater
decline in his mental acuity. He also became even less attentive to his hygiene. As his health
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concerns increased, so too did his dependence on family members.
In the months following the stroke Berwin and Clair’s relationship became increasingly strained.
Berwin found it more and more difficult to get his father to address his health and hygiene needs. In
addition, in August 2002 Brenda accused Berwin of abusing Clair. Berwin denied the abuse, but
Clair remained silent. This disturbed Berwin, and he began to make plans to move from the home.
According to Berwin, Clair indicated he did not want Berwin to move. Berwin suggested that Clair
sell him the acreage. The men reached a tentative agreement, but Clair backed away from the deal
after Brenda expressed a concern to her father that if Clair sold Berwin the acreage Berwin might
force Clair to leave the house.
On October 4 Berwin was in the process of removing his property from the family home when he
was served with a temporary protective order that restrained him from contacting his father or
entering the family home. The order was entered pursuant to a petition for relief from domestic
abuse that Clair had filed on October 3.
According to Brenda, Clair arrived at her home the evening of October 2, upset and crying. The
following day Brenda took Clair to see attorney Chris Clausen, and then to the courthouse, where
Brenda filled out the petition on Clair’s behalf. The petition alleged Berwin had yelled at his father,
grabbed him by the front of the shirt, pushed him up against the counter, then let him go. It further
alleged Clair had locked himself in the bathroom because Berwin was yelling at him, and that Berwin
had picked the lock on the door, entered the bathroom, continued to yell at Clair, and said he was
going to continue harassing Clair and “make it a living hell for” him. Clair initialed the
acknowledgment section and signed the petition.
Berwin denied the allegations in the petition, but agreed to the entry of a protective order that did
not contain a finding of domestic abuse. According to Berwin, he agreed to entry of the order
because he felt he could no longer live with his father in any event, and he hoped that after the order
expired he and Clair would be able to work out their differences.
On December 27, 2002, Clair executed his final will. Brenda drove Clair to the office of his attorney,
Gail Boliver. Brenda waited in the reception area while Clair met privately with Boliver. Clair had
provided Boliver with a hand-altered version of the 2001 will. Boliver made the noted changes, and
the will was duly executed. The 2002 will now made a specific bequest to Berwin of $10.00, provided
Bryan the opportunity to purchase the acreage for one-half of its appraised value, and divided the
remainder of Clair’s estate equally between Bryan and Brenda. Brenda continued to be nominated as
executor, with the bank as contingent executor.
Clair died less than two months later, on February 12, 2003. After the 2002 will was admitted to
probate, Berwin filed a petition to set the will aside. Berwin asserted Clair lacked the testamentary
capacity to make the will, and that the will was the result of undue influence. The matter proceeded
to trial in December 2004. The jury returned a verdict finding that Clair had the mental ability to
make a will on December 27, 2002, but that the 2002 will was the result of undue influence. Brenda
and Bryan filed a motion for a judgment notwithstanding the verdict, which was denied by the
district court.
Brenda and Bryan appeal. They contend the record does not contain sufficient evidence to support a
finding of undue influence.
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II. Scope and Standards of Review.
A will contest is an ordinary action, tried at law. Iowa Code § 633.33 (2003). Accordingly, our review
is for the correction of errors at law. Iowa R.App. P. 6.4. We will uphold the district court’s denial of
the motion for a judgment notwithstanding the verdict if the record contains substantial evidence to
support the jury’s verdict. See In re Estate of Bayer, 574 N.W.2d 667, 670 (Iowa 1998). We view the
evidence in the light most favorable to upholding the verdict. Id.
Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion.
Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995). Evidence is not insubstantial simply
because it supports different inferences, and a court cannot set aside a verdict merely because it
would have reached a different result. Bayer, 574 N.W.2d at 670. Weighing the evidence and
assessing credibility are matters left to the jury. Id.
III. Discussion.
Undue Influence is that which
substitute[s] the will of the person exercising the influence for that of the
testator, thereby making the writing express, not the purpose and intent of the
testator, but that of the person exercising the influence. It must operate at the
very time the will is executed and must be the dominating factor.
In re Estate of Davenport, 346 N.W.2d 530, 531-32 (Iowa 1984) (citation omitted). The four essential
elements of such a claim are
(1) the testator susceptibility to undue influence; (2) opportunity to exercise such
influence and effect the wrongful purpose; (3) disposition to influence unduly for
the purpose of procuring an improper favor; and (4) a result clearly the effect of
undue influence.
In re Estate of Todd, 585 N.W.2d 273, 277 n. 4 (Iowa 1998).
Berwin bore the burden of proving undue influence by a preponderance of the evidence. Id. at 277.
While his claim can rest on circumstantial evidence alone, more than a “scintilla” of evidence is
required. Bayer, 574 N.W.2d at 671. “Mere suspicion, surmise, conjecture, or speculation is not
enough to warrant a finding of undue influence, but there must be a solid foundation of established
facts upon which to rest an inference of its existence.” In re Will of Pritchard, 443 N.W.2d 95, 98
(Iowa Ct.App. 1989).
Brenda and Bryan assert that none of the four elements of undue influence are supported by
substantial evidence. Upon a review of the record we conclude, as did the district court, that the
jury’s verdict is sufficiently supported.
A. Clair’s Susceptibility to Undue Influence.
During trial the parties vigorously disputed Clair’s mental state. Berwin points to evidence that
Clair’s physical health and mental acuity gradually declined and his dependence on others gradually
451

increased, beginning with Kay’s death in 2000, and accelerating following Clair’s stroke in 2002.
Brenda and Bryan assert that this evidence demonstrates no more than the natural processes of
aging and grieving. They point to evidence that Clair was always a stubborn man who knew his own
mind, and testimony from attorneys Clausen and Boliver that the petition for relief from domestic
abuse and the 2002 will appeared to be products of Clair’s own wishes.
As previously noted, the weight and credibility to be assigned to the various items of evidence is a
matter for the jury. Bayer, 574 N.W.2d at 670. If the jury found Berwin’s evidence on the question to
be more credible, and placed greater weight on that evidence than it did on the evidence presented
by Brenda and Bryan, there is sufficient evidence in the record to demonstrate a physical and mental
vulnerability that could render Clair susceptible to undue influence. See Davenport, 346 N.W.2d at 532
(noting that both physical and mental weaknesses are relevant to show a tendency towards
susceptibility).
B. Brenda’s and Bryan’s Opportunity to Exercise Undue Influence.
It is undisputed that Brenda and Bryan had significant contact with Clair in the weeks and months
leading up to the execution of the 2002 will. This contact only increased following the petition for
relief from domestic abuse and resulting consent order, as Brenda supplanted Berwin as Clair’s
primary caretaker. Brenda took Clair to nearly all of his doctor’s appointments, Clair spent holidays
at Bryan’s home, and both Brenda and Bryan regularly spent additional time with their father.
Brenda and Bryan contend, however, that these occasions were no more than the performance of
“familial duties,” and do not rise to an opportunity to exercise undue influence. They cite to the case
of In re Estate of Davenport, 346 N.W.2d 530, 532 (Iowa 1984), in support of their position.
However, the language they rely on in Davenport relates only to the level of influence inherently
exerted in the performance of “friendship or familial duties,” and explains that such influence is not
in and of itself the type of undue, “tainted,” or dominating influence necessary to set aside a will.
Davenport, 346 N.W.2d at 532. The time Brenda and Bryan spent with their father was sufficient to
create an opportunity to exert undue influence over Clair. See Id. at 531(concluding a four day visit,
occurring a few weeks prior to will execution, was sufficient to establish an opportunity to exercise
undue influence).
C. Brenda’s and Bryan’s Disposition to Unduly Influence Clair.
Brenda and Bryan point out there is no direct evidence they unduly influenced Clair’s testamentary
dispositions, and they both denied even attempting to do so. However, Brenda’s and Bryan’s denials
need not be believed by the jury. Moreover, as we have previously noted, the elements of undue
influence may be proved through circumstantial evidence, Bayer, 574 N.W.2d at 671, so long as that
evidence creates “a solid foundation of established facts upon which to rest an inference of its
existence,” Pritchard, 443 N.W.2d at 98.
Viewing the record in the light most favorable to upholding the verdict, it contains substantial
circumstantial evidence that, if believed, indicates Brenda had a strong dislike for Berwin and
attempted to undermine his relationship with their father. In light of the fact that no evidence of
abuse was ever produced, the record also substantially supports a determination that Brenda went so
far as to prompt Clair to falsely accuse Berwin of abuse in an effort to eject Berwin from Clair’s life.
In light of the foregoing, it was reasonable for the jury to infer that Brenda was disposed to assert a
452

dominating influence over Clair in order to all but eliminate Berwin from Clair’s will. The record
contains substantial evidence to support a finding that Brenda was disposed to unduly influence
Clair in order to procure an improper favor.
D. Dispositions in 2002 Will Resulted from Undue Influence.
Clearly, the disposition in the 2002 will was a marked change from both the 1997 and 2001 wills, and
also provided for a patently unequal distribution of Clair’s estate. Brenda and Bryan point out that
while inequality in distribution is evidence of undue influence, generally such a distribution is not in
and of itself sufficient to establish undue influence. See Davenport, 346 N.W.2d at 532. They contend
the record is bereft of any additional evidence to support a finding of undue influence, and that in
fact the 2002 will simply reflects the natural decline in Berwin and Clair’s relationship. While the
record is susceptible to the interpretation Brenda and Bryan suggest, it is also susceptible to a
contrary interpretation. See Bayer, 574 N.W.2d at 670 (noting evidence is not insubstantial simply
because it supports different inferences).
Once again, if the jury found Berwin’s evidence more credible, and placed greater weight on it than
the evidence offered by Brenda and Bryan, the jury could conclude Berwin was a loving and dutiful
son who spent years caring for his father, that Clair did not in fact want Berwin to move from the
family home, that even though Berwin never abused his father Brenda was able to convince Clair to
file the petition for relief from domestic abuse, and that she did so in order to sever Berwin’s ties
with their father. Moreover, the 2002 will was not executed until after entry of the no contact order,
an order that prevented Berwin from contacting his father and resulted in Brenda becoming the
central caretaking figure in Clair’s life. Under those circumstances it was reasonable for the jury to
infer that the inequality in distribution was a product, not of Clair’s intent, but of Brenda’s undue
influence.
IV. Conclusion.
The parties have presented differing versions of events. Which of these versions is more credible,
and entitled to more weight, is a matter for the jury. Viewing the evidence in the light most favorable
to upholding the jury’s verdict, we conclude the record contains evidence that would allow a
reasonable fact finder to determine Clair’s 2002 will was the product of undue influence. We
accordingly uphold the district court order setting aside the 2002 will.
Affirmed.
Notes, Problems, and Questions
1. Should there have been a presumption of undue influence in the Schoppe case?
2. It is unclear what makes a person susceptible to undue influence. However, courts seem to focus
on the person’s age, personality, physical and mental health and ability to handle business affairs. See
In re Kamesar, 259 N.W.2d 733, 738 (Wis. 1977). The level of dependency that the person has on
other people also seems to be relevant. In the following situations, which of the testators should be
deemed to be susceptible to undue influence?

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(a) Prior to executing her will, Karen was diagnosed with bipolar disorder.
(b) Prior to executing his will, Bryon was blind in one eye and suffering from end-stage renal failure.
(c) The court appointed a guardian to handle Daniel’s personal and business affairs prior to the
execution of his will.
(d) Prior to executing her will, Wanda had a stroke.
3. In order to determine if the alleged influencer had the opportunity to influence the testator,
courts look at the amount of time that the person spent with the testator, the person’s proximity to
the testator, and the nature of the relationship between the person and the testator. The opportunity
element is difficult to evaluate. In order to have the opportunity to influence, the person is usually
spending a lot of time with the elderly person providing physical and emotional care. On the other
hand, the person who is contesting the will is typically the person who has spent the least amount of
time with the testator. From a public policy perspective, we should want to encourage the former
and not the later behavior.
4. In order to satisfy the disposition element, the contestant has to show something more than the
fact that the alleged influencer had a desire to obtain a share of the testator’s estate. The disposition
necessary for a finding of undue influence implies that the alleged influencer was willing to do
something wrong or unfair to insure that he or she receive a bigger share of the estate.
5. Aileen and Lee were married and had two children, Colin and Frances. After Lee died, Colin
moved in with Aileen to help her put his father’s affairs in order. Frances was estranged from her
parents, so she did not attend Lee’s funeral. Colin took Aileen to see an attorney who had done
work for him in order to have a will prepared for her. At that time, Aileen exhibited signs of
dementia. She had begun to forget and exaggerate. The attorney thought that Aileen was paranoid
and somewhat delusional, but concluded that she had testamentary capacity because she knew the
objects of her bounty and was oriented as to time and place. Aileen told the attorney that Frances
had stolen horses from her and had driven away her hired hand. She stated that she did not want
Frances to receive any of her property. Aileen also told the attorney that the local sheriff and
everyone in her county were on drugs. The attorney prepared a will leaving Aileen’s entire estate to
Colin. When Aileen died, Frances filed an action contesting the will. What is the possible outcome
of the case?
10.2.3 Duress
Duress is aggressive undue influence. In these cases, the wrongdoer threatens to perform or
performs a wrongful act that forces the donor to make a donative transfer that the donor does not
want to make. These types of cases are relatively rare. The coercive action may be physical or
mental. For example, a child may threaten to place an elderly parent in a nursing home if the parent
does not include certain provisions in his or her will. In extreme cases, the person seeking to inherit
may physically assault the testator to force the testator to comply with his or her demands.

454

In re Estate of Rosasco, 31 Misc. 3d 1214(A), 927 N.Y.S.2d 819 (N.Y. Sur. Ct. 2011)
KRISTIN BOOTH GLEN, J.
This is a motion for summary judgment brought by John Cella, preliminary executor of the estate of
his great-aunt, Mildred Rosasco, and proponent in a proceeding to probate her will. Objectants (four
of decedent’s nieces and nephews, including proponent’s mother) oppose the motion. The facts of
this case and the objections asserted present an opportunity to reexamine the tangled relationship in
New York law between undue influence and duress as grounds for invalidating a will.
Procedural Posture:
Decedent died on June 18, 2006, at age 93, survived by five nieces and nephews as her distributees,
leaving a $2.8 million estate. The propounded instrument, executed on September 16, 1997,
nominated as co-executors Loretta, a predeceased sister, and proponent and left the entire probate
estate to Loretta and Lillian, another predeceased sister, but, in the event neither survived decedent,
to proponent. Accordingly, proponent is the only person with an interest under the propounded
instrument.
Distributees Elissa Cella, Robert Rosasco, Arthur Rosasco and Ellin Learned objected to probate of
the propounded instrument, alleging that the instrument: (1) is not genuine; (2) was not duly
executed; (3) was executed by mistake; (4) was executed without testamentary capacity; (5) is the
product of proponent’s undue influence; (6) is the product of duress exercised by proponent on
decedent; and (7) was procured by proponent’s fraud.
Summary Judgment:
On a summary judgment motion, the court must examine the evidence in a light most favorable to
the party opposing summary judgment (see Council of City of New York v. Bloomberg, 6 NY3d 380,
401[2006]). That party “must assemble and lay bare its affirmative proof to demonstrate the
existence of genuine, triable issues. Reliance upon mere conclusions, expressions of hope or
unsubstantiated allegations is insufficient for that purpose [citations omitted]” (Corcoran Group v. Guy
Morris et al., 107b A.D.2d 622, 624 [1st Dept 1985], affd., 64 N.Y.2d 1034).
Objectants have articulated a basis for their allegations of undue influence and duress, but adduced
no evidence to support any other ground. Therefore, with respect to issues for which objectants
bear the burden of proof—allegations that the propounded instrument is the product of fraud (see
Matter of Evanchcuk, 145 A.D.2d 559, 560 [1st Dept 1988] ) and was executed by mistake—but have
furnished none, the motion for summary judgment is granted. With respect to objections for which
proponent bears the burden of proof—the genuineness of the instrument (see Matter of Creekmore, 1
N.Y.2d 284, 292 [1956]); see also SCPA 1408 [1] ), the due execution of the instrument and the
capacity of the testator (see Matter of Kumstar, 66 N.Y.2d 691, 692 [1985])—and has borne his burden
(by means of an affidavit of the attesting witnesses, the attestation clause of the will, and proof that
an attorney supervised the execution of the will [Matter of Schlaeger, 74 AD3d 405 (1st Dept. 2010)]),
the motion for summary judgment also is granted. The only remaining issue, therefore, is whether
objectants’ allegations of undue influence and duress warrant a trial.

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Facts Relevant to Claims of Undue Influence and Duress:
Decedent, her sisters Lillian and Loretta, and proponent and his family all lived in various
apartments in 45 Morton Street, a building owned by LoRoss Realty Corp., a closely-held
corporation controlled by members of the Rosasco family. When proponent’s parents threw him out
of their home, proponent, according to his deposition testimony, simply moved from his parents’
units, Apartments 7 and 8, into Apartment 2, which belonged to Lillian. Lillian resided with
decedent in Apartment 5. Loretta lived in Apartment 4. In 1989, decedent gave proponent a key to
Apartment 5.
In August 1997, proponent (along with Lillian and Loretta) attended a meeting between decedent
and Joseph J. Cella, Esq., (no relation to proponent), the attorney who drafted the September 16,
1997 instrument, at which the terms of the proposed instrument were discussed. “In essence,”
proponent testified at his deposition, “she said she’d like to leave all her possessions to her sisters
first and then to me.”
In 1997, that same year, proponent’s relationship with his sister Kate, according to his own
deposition testimony, was “hostile.” Proponent knew that decedent and her sisters provided Kate
(who no longer was residing at 45 Morton Street) with financial support. It was “common
knowledge”; besides, at the time, according to his deposition testimony, proponent had unfettered
access to decedent’s checkbook and monitored checks payable to Kate. Decedent’s financial support
of Kate infuriated proponent. He berated decedent and her sisters loudly and often. His anger
incited him to violence. He testified at his deposition that, in 1997, on one of Kate’s weekly visits to
Apartment 5 to ask decedent and her sisters for money, he struck Kate and “pushed” her to the
floor.
Kate also testified at her deposition about the 1997 incident:
“A. There was one time I believe in—I believe it was 97 when John hit me in the back while I was—
while I was leaving the apartment and he was coming in. He just swung around and hit me. And it
was in front of all three of my aunts. And that was one of the—
Q. As you were coming the [sic ] apartment?
A. As I was going out.
Q. As you were going out the door?
A. Yes. And that was the one time that—well, not the one time; but it was, like, a major time when
all three aunts got up and went after him. They were yelling at him to leave me alone. They were
very agitated and they were very upset. They called the police.”
The court notes that decedent was crippled from polio. In 1997, according to proponent’s
deposition testimony, decedent was 5′7″ and “skinny,” weighing approximately 100 pounds, while
proponent was 5′11″ tall, weighing 190 pounds.
According to Kate, the 1997 incident was not proponent’s first act of violence against her in
decedent’s presence. As she testified at her deposition:
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A. There were plenty of instances where he tried to intimidate me physically. But as for hitting me, it
was confined to 97 and one in 94–95.
Q. Did you—
A. And that was in front of the aunts too.
Q. What happened then?
A. He started an argument with Mildred about giving me money and about me being around them,
which is what he usually complains about. And when she told him to get out, he said, I’m not going
anywhere. Then he promptly punched me in the stomach in front of them and I went down like a
ton of bricks.
He’s a martial—he knew martial arts at this time. So he was pretty strong at that time....”
Proponent’s violence and other intimidating behavior had a keen effect on decedent. Kate testified
at her deposition:
“... I remember the conversation happening at the end of August, beginning of September of 97
where she said one day—I came in one day to talk to her.
“She said—and I quote—I did a really stupid thing. I made your brother the executor of my estate
and I should have made you that, meaning me. And I said, Well, easy thing to do. Call your lawyer
and have it changed if that’s what you want to do.
“Oh, no. If I do that, he’ll hurt me. And I was, like, Um, it’s your estate. You shouldn’t have to be
intimidated by him. If you’re afraid of calling the lawyer, I’ll call the lawyer. No. If you do that, he’s
just going to end up making things a lot worse and he’s going to hurt you and I don’t want that on
my conscience.
*****
“And I talked to her about it and I said, Well, it’s your money. It’s your estate. If you don’t want
John to be the executor, you have the right to call your lawyer and have it changed.
“She kept saying that if she did that, John would hurt her. Which I could believe, because he
intimidated her a lot over the years.”
There is also evidence decedent believed that, even if she were to make a new will—and expose
herself and Kate to the risk of proponent’s violence—proponent, nevertheless, would thwart her
intent. Kate testified at her deposition that, in 2002, when Loretta complained that proponent had
taken $10,000 from her:
“Mildred said, Well, he did the same thing to me. I mean, he’s the executor of my
estate and I really don’t want him to be.... And then she said, Well, he’s probably
going to find a way to steal my money anyway....”
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Decedent’s declarations to Kate that: (1) if she were to contact her lawyer about making a new will,
proponent would “hurt me,” (2) if Kate were to contact the lawyer on decedent’s behalf,
proponent’s “going to hurt you,” and (3) regardless of the terms of her will, proponent would “find
a way to steal” the assets of her estate, are not considered for their truth or falsity. Rather, these
statements fall within the state of mind exception to the hearsay rule (see Prince on Evidence § 8–
106). As the Court of Appeals explained:
“No testimonial effect need be given to the declaration, but the fact that such a
declaration was made by the decedent, whether true of false, is compelling
evidence of her feelings toward, and relations to, [in the instant case, proponent].
As such it is not excluded under the hearsay rule but is admissible as a verbal
act.”
Loetsch v. New York City Omnibus Corp., 291 N.Y. 308, 311 (1943).
The credibility of Kate’s testimony, as to “the fact that such a declaration was made by the
decedent,” and, if credible, the significance of such declarations, would be for a trier of fact to
decide.
Undue Influence:
Courts have long wrestled with the concept of undue influence. In the nineteenth century, the Court
of Appeals noted:
“It is impossible to define or describe with precision and exactness what is undue influence; what
the quality and the extent of the power of one mind over another must be to make it undue, in the
sense of the law, when exerted in making a will. Like the question of insanity, it is to some degree
open and vague, and must be decided by the application of sound principles and good sense to the
facts of each given case. [Citation omitted.] But the influence exercised over a testator which the
law regards as undue or illegal, must be such as to destroy his free agency; but no matter how little
the influence, if the free agency is destroyed it vitiates the act which is the result of it. In 1 Jarman
on Wills, 36, it is said: That the amount of undue influences which will be sufficient to invalidate a
will must of course vary with the strength or weakness of the mind of the testator; and the
influence which would subdue and control a mind naturally weak, or one which had become
impaired by age, sickness, disease, intemperance, or any other cause, might have no effect to
overcome or mislead a mind naturally strong and unimpaired.’ “The undue influence is not often
the subject of direct proof. It can be shown by all the facts and circumstances surrounding the
testator, the nature of the will, his family relations, the condition of his health and mind, his
dependency upon and subjection to the control of the person supposed to have wielded the
influences, the opportunity and disposition of the person to wield it, and the acts and declarations
of such person. [Citations omitted.]”
Rollwagen v. Rollwagen, 63 N.Y. 504, 519 (1876).
A year later, the Court of Appeals amplified its definition, explaining that influence is undue if it:
“amounted to a moral coercion, which restrained independent action and
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destroyed free agency, or which, by importunity which could not be resisted,
constrained the testator to do that which was against his free will and desire, but
which he was unable to refuse or too weak to resist. It must not be the
promptings of affection; the desire of gratifying the wishes of another; the ties of
attachment arising from consanguinity, or the memory of kind acts and friendly
offices, but a coercion produced by importunity, or by a silent, resistless power
which the strong will often exercises over the weak and infirm, and which could
not be resisted, so that the motive was tantamount to force or fear. [Citations
omitted.]”
Children’s Aid Soc’y v. Loveridge, 70 N.Y. 387, 394 (1877).
Some 82 years later, the Court of Appeals, in Matter of Walther (6 N.Y.2d 49 [1959]), articulated the
elements of a prima facie case: (1) undue influence may be proven by circumstantial evidence,
provided such evidence is substantial (id. at 54); (2) there must be a showing, not only of opportunity
and motive to exercise undue influence, but also, of the actual exercise of undue influence (id. at 55);
and (3) evidence that equally gives rise to an inference of undue influence or an inference that no
undue influence was practiced, does not establish undue influence (id. at 54).
The New York State Pattern Jury Instructions provide:
“A will must be a true expression of the testator’s wishes. If, instead, it reflects the desires of some
person who controlled the testator’s thoughts or actions, the will is invalid because of undue
influence. To be undue’, the influence exerted must amount to mental coercion that led the testator
to carry out the wishes of another, instead of (his, her) own wishes, because the testator was unable
to refuse or too weak to resist. The undue pressure brought to bear may consist of a play on the
testator’s emotions, passions, fears, weaknesses or hopes. It may consist of an appeal to (his, her)
prejudices or a continual course of flattery. The exercise of undue influence may be slow and
gradual, progressively gaining control over the testator.
*****
“Direct evidence of undue influence is seldom available. Accordingly, the law permits undue
influence to be shown by facts and circumstances leading up to and surrounding execution of a will.
However, it is not enough that you find that motive and opportunity to exercise undue influence
existed. You must also find additional facts that satisfy you that such influence was actually
exercised. Further, the facts upon which a claim of undue influence is based must be proved. In
other words, you may not guess or speculate. It must appear that the inference of undue influence is
the only one that can fairly and reasonably be drawn from the facts proved, and that any other
explanation is fairly and reasonably excluded. If the facts proved would reasonably support an
inference that undue influence was exercised, as well as the contrary inference that it was not
exercised, then undue influence has not been proved.
“You just answer the following question: Was the execution of the will... by the testator, AB, the
result of undue influence by CD?’ To answer that question, you must determine what were the facts
and circumstances leading up to and surrounding execution of this will, taking into consideration
such testimony as you deem true concerning ... AB’s physical and mental condition; AB’s contact
with, or isolation from, (his, her) family and friends....
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“The burden is on the contestant to establish by a fair preponderance of the evidence that the will
in question was the result of undue
influence....”
(PJI2d 7:55 at 1429–1430 [2011]).
This “classic” type of undue influence is difficult to prove. It tends to be practiced in secret (a “silent
resistless power”) on an individual who is enfeebled, isolated and moribund, someone susceptible to
the effects of subtle importuning who, after executing her will, either loses capacity or dies while
subject to the undue influence. On its face, it would not appear applicable to the instant case.
Decedent here, at the time she executed her will, suffered no mental infirmity, lived communally
with her sisters and survived an additional eight-and-three-quarter years. During that period, she was
connected to, and received assistance from, many people other than proponent.
The burden of proving this “classic” form of undue influence is eased if objectants can establish that
the testator was in a relationship of trust and dependence with a person who exploited that
relationship (see PJI2d 7:56.1 at 1442–1444 [2011]). Such facts permit an inference of undue
influence that obligates the person charged with undue influence to explain the bequest (Matter of
Katz, 15 Misc.3d 1104[A][Sur Ct, New York County, 2007] ).
Unsurprisingly, objectants claim that decedent was in a relationship of trust and dependence with
proponent; however, their non-specific and conclusory allegations fail to establish the existence of
such relationship. Objectants claim that proponent was “a regular presence at [decedent’s]
apartment, a participant in her daily life,” that he “assist[ed] her and [made] arrangements for her
daily life” and that he “supervised her care.” These allegations, inadequate in themselves to describe
a confidential relationship, are based on the affidavits of Zoe Maher and Mayra Rajeh which, along
with proponent’s own deposition testimony, undercut any claim of isolation or exclusive
dependence. At most, proponent was part of decedent’s support system.
In the absence of evidence of actual exercise of undue influence on a weakened mind or abuse of a
confidential relationship, proponent, under the “classic” definition of undue influence, would be
entitled to summary judgment. Yet, “classic” undue influence is not the only ground on which to
determine whether a propounded instrument expresses testator’s unconstrained choice. Although it
is seldom discussed in New York cases, the First Department has noted:
“There are two principal categories of undue influence in the law of wills, the
forms of which are circumscribed only by the ingenuity and resourcefulness of
man. One class is the gross, obvious and palpable type of undue influence which
does not destroy the intent or will of the testator but prevents it from being
exercised by force and threats of harm to the testator or those close to him. The
other class is the insidious, subtle and impalpable kind which subverts the intent
or will of the testator, internalizes within the mind of the testator the desire to do
that which is not his intent but the intent and end of another. [Citations
omitted.]”
Matter of Kaufmann, 20 A.D.2d 464, 482-483 (1st Dept 1964), affd 15 N.Y.2d 825 (1965)
The former category is also known as “duress.”
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Duress:
In the context of contested probate proceedings, New York State courts tend to blur the distinction
between duress and undue influence. Indeed, the New York State Pattern Jury Instructions do not
even mention duress as a ground, separate from undue influence, for contesting a will. Such
indiscriminate approach toward the law of duress is not unique to the courts of this State. A legal
scholar has observed:
“In fact, in the American law of wills, the concepts of duress and undue influence are so
intertwined that several major Trusts and Estates textbooks omit discussion of duress altogether
or explain the idea only in connection with undue influence. Leading treatises explain that duress
is often classed under undue influence.’ And, in the context of wills, it may be defined as the use
of coercion or force to such a degree that it destroys the free agency and willpower of the testator.
The Restatement is perhaps most helpful in distinguishing between duress and undue influence.
[Footnotes omitted.]”
Scalise, supra, at 68.
The Restatement (Third) of Property distinguishes a bequest procured by undue influence from one
procured by duress. As to the former:
“A donative transfer is procured by undue influence if the wrongdoer exerted
such influence over the donor that it overcame the donor’s free will and caused
the donor to make a donative transfer that the donor would not otherwise have
made.”
Id. § 8.3(b).
The latter is explained as follows:
“A donative transfer is procured by duress if the wrongdoer threatened to
perform or did perform a wrongful act that coerced the donor into making a
donative transfer that the donor would not otherwise have made.”
Id. § 8.3(c).
The Comment on Subsection (c) explains:
“An act is wrongful if it is criminal or one that the wrongdoer had no right to do.
See Restatement Second, Contracts §§ 174-176. Although an act or a threat to do
an act that the wrongdoer had a right to do does not constitute duress, such a
threat or act can constitute undue influence, for example, a threat to abandon an
ill testator.”
The Restatement of Contracts fleshes out the elements of duress. First, “the doing of an act often
involves, without more, a threat that the act will be repeated” (Restatement [First] of Contracts §
492 Comment d). As stated in the Restatement (Second) of Contracts: “Past events often import a
threat” (id. § 175 Comment b).
Second, the standard for evaluating whether an “act or threat produces the required degree of fear is
461

not objective,” but subjective, that is, the issue is whether the threat of a wrongful act induced such
fear in the testator “as to preclude the exercise by [her] of free will and judgment” (Restatement
[First] of Contracts § 492 Comment a]). As explained in the Restatement (Second) of Contracts:
“The test is subjective and the question is, did the threat actually induce assent on the part of the
person claiming to be the victim of duress” (id. § 175 Comment c).
Finally, the motivation or intent of the person charged with duress is irrelevant: “duress does not
depend on the intent of the person exercising it” (Restatement [First] of Contracts § 492 Comment
a]).
Objectants here have established a prima facie case for duress. The evidence adduced by objectants, if
believed by the trier of fact, could establish that: (1) To decedent, proponent’s wrongful act—his
violence toward Kate—posed a threat of repeated violence. (2) That threat induced fear in decedent.
(3) Decedent feared that, if she were to make a new will that favored Kate, not only would
proponent harm decedent, if he were to learn of the new will during decedent’s lifetime, but also,
more significantly, upon decedent’s death, proponent would physically harm Kate (and convert for
himself any assets intended for Kate). And (4) Such fear precluded decedent from exercising her free
will and judgment and naming Kate, a natural object of her bounty, a legatee.
Proponent’s Contentions:
Proponent makes two arguments which may be disposed of easily. First, he contends that it was
natural for decedent to disinherit her nieces and nephews because her relationship with them was
“distant at best.” Indeed, objectants Elissa Cella and Ellin Learned, along with another of decedent’s
nieces (the one who did not object in the instant probate proceeding), commenced an action in 1988
against decedent, her sisters Lillian and Loretta and their brother Walter (who died in 1997),
accusing them of mismanaging LoRoss Realty Corp. However, the rationale for decedent’s decision
to disfavor her nieces and nephews has no bearing on her decision to favor proponent to the
exclusion of others. Rather, the issue is, as discussed above, whether her decision was the product of
duress.
Second, proponent, invoking the doctrine of laches, contends that objectants are precluded from
objecting to probate of the propounded instrument because they did not: (1) object to the
appointment of proponent and Joseph J. Cella, Esq., as co-executors of Lillian’s will, or (2) object to
the appointment of proponent (after decedent had renounced her nomination as executor) as
administrator c.t.a. of Loretta’s estate, or (3) object, during decedent’s lifetime, to the 2002
agreement, whereby decedent and her sisters, Lillian and Loretta, transferred to proponent their
60% interest in premises known as 51 East 10th Street for less than fair market value, or (4) seek the
appointment of an Article 81 guardian for decedent, all of which deprived proponent of the benefit
of decedent’s testimony. Proponent’s invocation of the doctrine of laches is entirely inapposite.
The questions presented in the instant proceeding concern only the validity of the instrument
executed on September 16, 1997. Such questions could not have been raised during decedent’s
lifetime. Furthermore, objectants had no standing, during decedent’s lifetime, to challenge the 2002
transfer; indeed, objectants will remain without standing unless they establish an interest in
decedent’s estate.
Conclusion:
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The motion for summary judgment with respect to duress is denied. In all other respects, themotion
is granted.
The court will contact the parties to schedule a conference before a trial on the issue of duress.
This decision constitutes the order of the court.
10.3

Fraud

According to § 8.3(d) of the Restatement (Third) of Property: Wills and Other Donative
Transfers, “A donative transfer is procured by fraud if the wrongdoer knowingly or recklessly made
a false representation to the donor about a material fact that was intended to and did lead the donor
to make a donative transfer that the donor would not otherwise have made.” If the fraudulent
actions of another person impacts the contents of the testator’s will, the will is not valid because it
does not reflect the testator’s true intent. The misrepresentation must be made with both the intent
to deceive the testator and the purpose of influencing the testamentary disposition. Let’s look at an
example.
Example 1: Betty planned to leave half of her estate to her friend, Elaine. One day, Betty shared
that fact with her neighbor, Louise. Louise told Betty, “I saw Elaine’s daughter about a month ago
and she told me that Elaine had been diagnosed with breast cancer. Last week, I ran into Elaine’s
cousin at the supermarket and she told me that Elaine did not make it.” In fact, the cousin told
Louise that the doctors did not think that Elaine was going to make it. After Betty tried
unsuccessfully to contact Elaine and her family, she executed a will leaving all of her estate to
charity. At the time that Betty executed her will, Elaine was very much alive.
Explanation 1: Betty’s will was not a product of fraud. Louise’s purpose was to influence the
testamentary disposition because she did not want Betty leaving half of her estate to a dead woman.
However, Louise did not tell her Elaine was dead to deceive her. At the time she shared the
information, Louise thought that it was true. Fraud would have occurred if Louise knew Elaine was
alive, but she did not want Elaine to get half of the estate.
There are two types of fraud relevant to estate planning—fraud in the inducement and fraud
in the execution. Fraud in the inducement occurs when a person misrepresents facts, thereby
causing the testator to execute a will, to include particular provisions in the wrongdoer’s favor, to
refrain from revoking a will or not to execute a will. Fraud in the execution occurs when a person
misrepresents the character or contents of the instrument signed by the testator, which does not in
fact carry out the testator’s intent
10.3.1 Fraud in the inducement
Fraud in the inducement happens at the beginning of the estate planning process. It usually
involves a situation where someone seeks to entice the testator into making a testamentary
disposition that benefits him or her. The person makes a misrepresentation for the sole purpose of
achieving that goal.
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Example:
Helen, a 78 year old widow, had three children, Clarence, Cody and Cathy. Cathy took Helen to a
lawyer, so that Helen could prepare her will. On the way to the lawyer’s office, the following
conversation occurred:
Helen: “I plan to leave my estate to you and your brothers equally.”
Cathy: “You have to be careful because leaving Cody money will just hurt him.”
Helen: “What are you talking about?”
Cathy: “Cody has been taking drugs for years. The only reason he is sober sometimes is because he
doesn’t have money to buy all of the drugs that he wants.”
Helen: “Are you sure? This is my first time hearing that.”
Cathy: “That’s because everyone is afraid of hurting your feelings.”
Helen: “Thanks for letting me know.”
As a result of the conversation, Helen left the majority of her estate to Clarence and Cathy. She
placed a small amount in trust for Cody. Cathy intentionally lied about Cody having a drug problem.
This is a classic example of fraud in the inducement.
10.3.2 Fraud in the Execution
Fraud in the execution occurs after the contents of the will have already been put in place
and prior to the actual execution of the will. It encompasses cases where the testator is tricked into
executing a document that is not his or her will or one that does not contain his or her expressed
wishes.
Example:
Joseph, an 82 year old widower, had two children, Janice and Benjamin, and two grandchildren by
his daughter Janice, Wayne and Garrett. Joseph had his attorney prepare a will in which he left 25%
of his estate to Janice and 25% to Benjamin. The remaining 50% of the estate was placed in trust for
Wayne and Garrett. Benjamin found a copy of the will on Joseph’s desk. Benjamin felt that, since
Janice’s children were benefitting from the trust, she was entitled to a smaller percentage of the
estate. Joseph had three of his friends come to his house to witness the signing of the will.
Benjamin was present at the ceremony. He gave the will to Joseph for his signature. Joseph and the
witnesses only looked at the signature page of the will. Joseph did not know that Benjamin had
retyped the will, so that he received 50% of the estate, Janice received 25%, and the amount in the
trust for Wayne and Garrett was reduced to 25%. This is a case of fraud in the execution because
Joseph was tricked into signing a will with different terms than the ones he approved.
10.4

Intentional Interference With An Inheritance Expectancy (IIE)

No one has a right to inherit property. The right to dispose of property belongs to the
testator. Thus, a person can legally disinherit any of his or her relatives. Nonetheless, when a person
is prevented from inheriting property because of the actions of a third party, that person may have a
464

cause of action against the third party. The tort of IIE was derived from Restatement (Second) of
Torts § 774B(1979). Courts have been reluctant to recognize the tort of IIE because the person
bringing the cause of action typically has access to an adequate remedy in probate court. In fact,
most probate codes explicitly state that the exclusive means of challenging the validity of a will is a
will contest action filed in the probate court. IIE resembles a will contest because the plaintiff claims
that he or she did not receive the inheritance that he or she expected because of the fraud, duress
and/or undue influence perpetrated by the third party. Therefore, some courts reason that
recognition of IIE, a separate cause of action, is unnecessary because the plaintiff can achieve the
same outcome by filing a will contest action.
In order to successfully bring a cause of action for IIE, the plaintiff has to prove four things.
First, the plaintiff must show the existence of an expectancy. The plaintiff can accomplish this by
demonstrating that he or she was the beneficiary of a testator’s prior will or the heir at law of an
intestate decedent. Second, the plaintiff must establish the intentional interference with his or her
expectancy through tortious conduct. In order to satisfy this requirement, the plaintiff must present
evidence that the third party committed a tort that deprived the plaintiff of his or her inheritance.
The tortious conduct that the plaintiff usually alleges includes fraud, duress and/or undue influence.
Third, the plaintiff must prove that the third party’s actions caused him or her to lose the expected
inheritance. Fourth, the plaintiff must prove damages.

§ 774B Intentional Interference with Inheritance or Gift
One who by fraud, duress or other tortious means intentionally prevents another from receiving
from a third person an inheritance or gift that he would otherwise have received is subject to
liability to the other for loss of the inheritance or gift.

Schilling v. Herrera, 952 So. 2d 1231 (Fla. App. 2007)
ROTHENBERG, Judge.
The plaintiff, Edward A. Schilling (“Mr. Schilling”), appeals from an order granting the defendant
Maria Herrera’s (“Ms. Herrera”) motion to dismiss the amended complaint with prejudice based on
the trial court’s finding that the amended complaint fails to state a cause of action and that Mr.
Schilling is barred from filing to action because he failed to exhaust his probate, remedies. We
disagree as to both findings and, therefore, reverse and remand for further proceedings.
PROCEDURAL HISTORY
Mr. Schilling, the decedent’s brother, sued Ms. Herrera, the decedent’s caretaker, for intentional
interference with an expectancy of inheritance. Ms. Herrera moved to dismiss the complaint, arguing
that Mr. Schilling failed to state a cause of action and that he was barred from filing his claim
because he failed to exhaust his probate remedies. The trial court granted the motion to dismiss
without prejudice.

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Thereafter, Mr. Schilling filed an amended complaint asserting the same cause of action against Ms.
Herrera. The amended complaint alleges that in December 1996, Mignonne Helen Schilling (the
decedent) executed her Last Will and Testament, naming her brother and only heir-at-law, Mr.
Schilling, as her personal representative and sole beneficiary, and in May 1997, she executed a
Durable Power of Attorney, naming Mr. Schilling as her attorney-in-fact.
In December 1999, the decedent was diagnosed with renal disease, resulting in several
hospitalizations. During this period, Mr. Schilling, who resides in New Jersey, traveled to Florida to
assist the decedent. In January 2000, the decedent executed a Power of Attorney for Health Care,
naming Mr. Schilling as her attorney-in-fact for health care decisions.
On January 12, 2001, when the decedent was once again hospitalized, Mr. Schilling traveled to
Florida to make arrangements for the decedent’s care. After being released from the hospital, the
decedent was admitted to a rehabilitation hospital, then to a health care center, and then to the
Clairidge House for rehabilitation. While at the Clairidge House, Ms. Herrera became involved in the
decedent’s care, and when the decedent was discharged from the Clairidge House on December 16,
2001, Ms. Herrera notified Mr. Schilling.
After being discharged from the Clairidge House, the decedent returned to her apartment, and Ms.
Herrera began to care for her on an “occasional, as needed basis.” In 2003, when the decedent’s
condition worsened and she was in need of additional care, Ms. Herrera converted her garage into a
bedroom, and the decedent moved in. The decedent paid Ms. Herrera rent and for her services as
caregiver.
When Mr. Schilling spoke to Ms. Herrera over the phone, Ms. Herrera complained that she was not
getting paid enough to take care of the decedent, and on April 10, 2003, Mr. Schilling sent Ms.
Herrera money. While living in the converted garage, the decedent became completely dependent on
Ms. Herrera. In September 2003, without Mr. Schilling’s knowledge, Ms. Herrera convinced the
decedent to prepare and execute a new Power of Attorney, naming Ms. Herrera as attorney-in-fact,
and to execute a new Last Will and Testament naming Ms. Herrera as personal representative and
sole beneficiary of the decedent’s estate.
Mr. Schilling visited the decedent in March of 2004. On August 6, 2004, the decedent died at Ms.
Herrera’s home.
On August 24, 2004, Ms. Herrera filed her Petition for Administration. On December 2, 2004,
following the expiration of the creditor’s period, Ms. Herrera petitioned for discharge of probate.
On December 6, 2004, after the expiration of the creditor’s period and after Ms. Herrera had
petitioned the probate court for discharge of probate, Ms. Herrera notified Mr. Schilling for the first
time that the decedent, his sister, had passed away on August 6, 2004. Shortly thereafter, in late
December 2004, the Final Order of Discharge was entered by the probate court. Mr. Schilling
alleges that prior to being notified of his sister’s death on December 6, 2004, he attempted to
contact the decedent through Ms. Herrera, but Ms. Herrera did not return his calls until the
conclusion of probate proceedings and did not inform him of his sister’s death, thereby depriving
him of both the knowledge of the decedent’s death and the opportunity of contesting the probate
proceedings. Mr. Schilling further alleges that prior to the decedent’s death, Ms. Herrera regularly
did not immediately return his phone calls, and that Ms. Herrera’s “intentional silence was part of a
calculated scheme to prevent [Mr.] Schilling from contesting the Estate of Decedent, and was
466

intended to induce [Mr.] Schilling to refrain from acting in his interests to contest the probate
proceedings in a timely fashion, as [Mr.] Schilling was used to long delays in contact with [Ms.]
Herrera, and did not suspect that the delay was intended to fraudulently induce [Mr.] Schilling to
refrain from acting on his own behalf.” Finally, Mr. Schilling alleges that he expected to inherit the
decedent’s estate because he was the decedent’s only heir-at-law and because he was named as the
sole beneficiary in the 1996 will; Ms. Herrera’s fraudulent actions prevented him from receiving the
decedent’s estate, which he was entitled to; and but for Ms. Herrera’s action of procuring the will
naming her as sole beneficiary, he would have received the benefit of the estate.
After Mr. Schilling filed his amended complaint, Ms. Herrera filed a renewed motion to dismiss,
arguing the same issues that she had raised in her previous motion to dismiss. The trial court granted
the motion to dismiss with prejudice, finding that Ms. Herrera had no duty to notify Mr. Schilling of
the decedent’s death as Mr. Schilling did not hire Ms. Herrera to care for the decedent, and
therefore, there was “no special relationship giving rise to a proactive responsibility to provide
information....” The trial court also found that Mr. Schilling was barred from filing a claim for
intentional interference with an expectancy of inheritance because he failed to exhaust his probate
remedies.
LEGAL ANALYSIS
A trial court’s ruling on a motion to dismiss for failure to state a cause of action is an issue of law,
and therefore, our standard of review is de novo. Roos v. Morrison, 913 So.2d 59, 63 (Fla. 1st DCA
2005); Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc. 842 So.2d 204, 206 (Fla. 2d DCA 2003).This court
“must accept the facts alleged in a complaint as true when reviewing an order that determines the
sufficiency of the complaint.” Warren ex rel. Brassell v. K-Mart Corp., 765 So.2d 235, 236 (Fla. 1st DCA
2000); see also Marshall v. Amerisys, Inc., 943 So.2d 276, 278 (Fla.3d DCA 2006)(“In determining the
merits of a motion to dismiss, the court is confined to the four corners of the complaint, including
the attachments thereto, the allegations of which must be accepted as true and considered in the
light most favorable to the nonmoving party.”).
To state a cause of action for intentional interference with an expectancy of inheritance, the
complaint must allege the following elements: (1) the existence of an expectancy; (2) intentional
interference with the expectancy through tortious conduct; (3) causation; and (4) damages. Claveloux
v. Bacotti, 778 So.2d 399, 400 (Fla. DCA 2001)(citing Whalen v. Prosser, 719 So.2d 2, 5 (Fla. 2d DCA
1998)). The court in Whalen clearly explained that the purpose behind this tort is to protect the
testator, not the beneficiary:
Interference with an expectancy is an unusual tort because the beneficiary is
authorized to sue to recover damages primarily to protect the testator’s interest
rather than the disappointed beneficiary’s expectations. The fraud, duress, undue
influence, or other independent tortious conduct required for this tort is directed
at the testator. The beneficiary is not directly defrauded or unduly influenced; the
testator is. Thus, the common law court has created this cause of action not
primarily to protect the beneficiary’s inchoate rights, but to protect the deceased
testator’s former right to dispose of property freely and without improper
interference. In a sense, the beneficiary’s action is derivative of the testator’s
rights.
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Whalen, 719 So.2d at 6.
In the instant case, the trial court’s ruling was based on the fact that the amended complaint fails to
allege that Ms. Herrera breached a legal duty owed to Mr. Schilling. However, as the Claveloux court
noted, there are four elements for a cause of action for intentional interference with an expectancy
of inheritance, and breach of a legal duty is not one of the elements. This is consistent with the
Whalen court’s explanation that the “fraud, duress, undue influence, or other independent tortious
conduct required for this tort is directed at the testator. The beneficiary is not directly defrauded or
unduly influenced; the testator is.” Id. (emphasis added). We, therefore, review the amended
complaint to determine if it sufficiently pleads a cause of action for intentional interference with an
expectancy of inheritance.
In essence, the amended complaint alleges that Mr. Schilling was named as the sole beneficiary in the
decedent’s last will and testament; that based on this last will and testament, he expected to inherit
the decedent’s estate upon her death; that Ms. Herrera intentionally interfered with his expectancy of
inheritance by “convincing” the decedent, while she was ill and completely dependent on Ms.
Herrera, to execute a new last will and testament naming Ms. Herrera as the sole beneficiary; and
that Ms. Herrera’s “fraudulent actions” and “undue influence” prevented Mr. Schilling from
inheriting the decedent’s estate. Based on these well-pled allegations, we conclude that the amended
complaint states a cause of action for intentional interference with an expectancy of inheritance.
Therefore, the trial court erred, as a matter of law, in dismissing the amended complaint on that
basis.
Mr. Schilling also contends that the trial court erred in finding that he was barred from filing a claim
for intentional interference with an expectancy of inheritance as he failed to exhaust his probate
remedies. We agree.
In finding that Mr. Schilling was barred from filing his action for intentional interference with an
expectancy of inheritance, the trial court relied on DeWitt v. Duce, 408 So.2d 216 (Fla. 1981). In
DeWitt, the testator’s will was admitted to probate after his death. Thereafter, the plaintiffs filed a
petition for revocation of probate of the testator’s will, but voluntarily dismissed the petition,
choosing to take under the will instead of challenging the will in probate court. More than two years
later, the plaintiffs filed their claim for intentional interference with an inheritance, arguing that the
defendants exercised undue influence over the testator at a time when he lacked testamentary
capacity, causing the testator to execute the probated will, which was less favorable to the plaintiffs
and more favorable to the defendants than the testator’s previous will. The trial court dismissed the
action, finding that pursuant to section 733.103(2), Florida Statutes (1977), the plaintiffs were
foreclosed from proving the facts necessary to establish a cause of action for intentional interference
with an expectancy of inheritance. 733.103(2), Florida Statutes (1977), provides as follows:
In any collateral action or proceeding relating to devised property, the probate of a will in Florida
shall be conclusive of its due execution; that it was executed by a competent testator, free of fraud,
duress, mistake, and undue influence; and of the fact that the will was unrevoked on the testator’s
death.
The decision was appealed to a federal district court, and the federal court determined it would be
better for the Florida Supreme Court to decide the issue, certifying the following question to the
Florida Supreme Court:
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Does Florida law, statutory or otherwise, preclude plaintiffs from proving the
essential elements of their claim for tortious interference with an inheritance
where the alleged wrongfully procured will has been probated in a Florida court
and plaintiffs had notice of the probate proceeding and an opportunity to contest
the validity of the will therein but chose not to do so?
DeWitt, 408 So.2d at 216-17.
In answering the certified question in the affirmative, the Florida Supreme Court stated that “[t]he
rule is that if adequate relief is available in a probate proceeding, then that remedy must be
exhausted before a tortious interference claim may be pursued.” Id. at 218. The Court, however,
stated that an exception to this general rule is that “[i]f the defendant’s fraud is not discovered until
after probate, plaintiff is allowed to bring a later action for damages since relief in probate was
impossible.” Id. at 219. The Court also noted that “[c]ases which allow the action for tortious
interference with a testamentary expectancy are predicated on the inadequacy of probate
remedies....” Id. In conclusion, the Florida Supreme Court held:
In sum, we find that [plaintiffs] had an adequate remedy in probate with a fair
opportunity to pursue it. Because they lacked assiduity in failing to avail
themselves of this remedy, we interpret section 733.103(2) as barring [plaintiffs]
from a subsequent action in tort for wrongful interference with a testamentary
expectancy, and accordingly answer the certified question in the affirmative.
Id. at 222. Therefore, the Court’s holding that the plaintiffs were barred from pursuing their claim
for intentional interference with an expectancy of inheritance, was based on the fact that the
plaintiffs had an adequate remedy in probate; the plaintiffs had a fair opportunity to pursue their
remedy; and the plaintiffs’ failure to pursue their remedy was due to their lack of diligence.
We find that DeWitt is factually distinguishable, and therefore inapplicable. A review of the amended
complaint reflects that Mr. Schilling has alleged two separate frauds. The first alleged fraud stems
from Ms. Herrera’s undue influence over the deceased in procuring the will, whereas the second
alleged fraud stems from Ms. Herrera’s actions in preventing Mr. Schilling from contesting the will
in probate court. We acknowledge that pursuant to DeWitt if only the first type of fraud was
involved, Mr. Schilling’s collateral attack of the will would be barred. However, language contained
in DeWitt clearly indicates that a subsequent action for intentional interference with an expectancy of
inheritance may be permitted where “the circumstances surrounding the tortious conduct effectively
preclude adequate relief in the probate court.” Id. at 219.
This issue was later addressed by the Fourth District in Ebeling v. Voltz, 545 So.2d 783 (Fla. 4th DCA
1984). In Ebeling, the plaintiffs filed an action against the defendant for intentional interference with
an expectancy of inheritance, alleging that, although they knew of the probate proceeding, they did
not contest the will in probate court because the defendant made fraudulent statements inducing
them not to contest the will. The trial court granted the defendant’s motion to dismiss, finding that
pursuant to Section 733.103, Florida Statutes (1983), the plaintiffs were barred from attacking the
will. The Fourth District reversed, finding that “[e]xtrinsic fraud, or in other words, fraud alleged in
the prevention of the will contest, as opposed to in the making of the will, would appear to be the
type of circumstance that would preclude relief in the probate court.” Id. The court noted that the
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fraud alleged in the complaint prevented the plaintiffs from pursuing the incapacity claim in the
probate court, and therefore, the action “falls into the category of cases that DeWitt considers
outside the purview of Section 733.103(2), Florida Statutes.” Id.
In the instant case, we must accept the facts alleged by Mr. Schilling as true. He alleges in the
amended complaint that when the decedent began to live in Ms. Herrera’s home, pursuant to
powers of attorney executed by the decedent, Mr. Schilling was the decedent’s attorney-in-fact;
throughout the decedent’s numerous illnesses, Mr. Schilling made decisions regarding the decedent’s
care; Mr. Schilling traveled to Miami on numerous occasions to visit the decedent, whose condition
progressively worsened; Mr. Schilling stayed in contact with Ms. Herrera while the decedent was
living in her home; Mr. Schilling relied on Ms. Herrera to obtain information regarding the decedent;
Mr. Schilling sent money to Ms. Herrera to pay for the decedent’s care; after the decedent passed
away, Mr. Schilling called Ms. Herrera numerous times, but she would not return his calls; and Ms.
Herrera did not inform Mr. Schilling of his sister’s death until after she petitioned for discharge of
probate. As the facts in the amended complaint sufficiently allege that Mr. Schilling was prevented
from contesting the will in the probate court due to Ms. Herrera’s fraudulent conduct, we find that
the trial court erred in finding that Mr. Schilling’s claim for intentional interference with an
expectancy of inheritance was barred.
Accordingly, we reverse the order dismissing Mr. Schilling’s amended complaint, and remand for
further proceedings.
Notes, Problems, and Questions
1. The purpose of IIE is to protect the testator’s right to dispose of his or her property without a
third party improperly interfering. The person who sues is trying to receive the inheritance that the
testator wanted him or her to have. Prior to filing an IIE claim, the person must exhaust all of his
probate remedies. Why did the Schilling court find an exception to this rule?
2. James G. Sawyer divorced Pumpkin Sawyer after twenty years of marriage. The couple had one
child, Moon Sawyer. Shortly after the divorce, James married Iris Sawyer. Moon accused Iris of
breaking up her parents’ marriage. She also claimed that Iris attempted to exclude her from her
father's life. According to Moon, her father resorted to secret meetings with her because Iris
disapproved of their meetings. At some point, Moon lost contact with her father. James executed a
will in July 1999. In the will, he provided that his entire estate was to go to Iris. In the event that Iris
preceded him in death, James bequeathed household items to Iris's daughters Pam and Joan, $10,000
each to Iris's two nieces, $1 to Moon, and the rest of the estate to Hastie. Hastie was designated as
trustee, and Wade, Hastie's ex-husband, was designated trustee in the event that Hastie could not
serve. Wade also drafted the will and signed it as a witness. James died on November 25, 2000.
Moon claimed that she did not learn of her father's death until April 3, 2007, when she called his
house to wish him a happy birthday. According to Moon, Iris informed her that her father had died
years ago. The obituary announcing his death did not list Moon as James's daughter. Moon filed a
cause of action for IIE. What is the likely outcome of that case?
3. The tort cannot be invoked if the challenge is based on the testator’s lack of mental capacity or
an insane delusion.
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Class Discussion Tool
(Answer this hypothetic relying on the information contain in Chapters Nine and Ten)
Anna was diagnosed with breast cancer. Her doctor treated the cancer with radiation and
chemotherapy. In order to combat the side effects of the treatment, Anna got a prescription for
medical marijuana. Anna smoked three joints a day to alleviate her pain and nausea. Anna moved in
with her only child, Jean, so she could take care of her. Jean believed in natural healing, so she put
Anna on a regiment of organic food, herbal supplements and yoga. Maggie, Anna’s best friend, told
Anna that Dr. Oz said that some herbal supplements increased the growth of cancer cells. In fact,
Dr. Oz stated that some herbal supplements might decrease the growth of cancer cells. On the day
she watched the show, Maggie was having trouble with her hearing aide. Anna refused to take the
herbal supplements. Jean got tired of fighting with Anna over the supplements, so she started
slipping them into Anna’s food.
One day, Anna saw Jean open up a capsule and sprinkle it over her pasta. After that, Anna became
convinced that Jean was poisoning her. Anna shared her concerns with Maggie. Maggie told her
pastor, Donald, that Anna was in danger. Maggie took Anna to the church to meet with Donald.
After the meeting, Anna was so grateful that she gave the church a $500 donation.
When he discovered that she had money, Donald convinced Anna to move into an apartment
complex owned by his church. Donald and the other members of the church prevented Jean from
visiting Anna. Eventually, Donald took Anna to the church’s attorney and had her execute a will
leaving all of her money in trust for the benefit of the church.
A few months later, Anna read in a magazine that Dr. Oz stated that some herbal supplements
might decrease the growth of cancer cells. Consequently, Anna told Donald that she was wrong
about Jean. Anna told him that she planned to return home to Jean and to modify her will to leave
her entire estate to Jean. In response, David placed guards, so that Anna could not leave the
apartment.
One night, Maggie helped Anna escape from the apartment and reunite with Jean. Anna died a few
days later before she could amend her will.
Jean plans to challenge the validity of the will. What are her strongest arguments and the
church’s possible responses?

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Chapter Eleven: Attested Wills
11.1

Introduction

Most jurisdictions that have will statutes that are pretty similar. The only differences lie in
the number of attesting witnesses that are required. The will execution process is a solemn ceremony
that must be taken seriously. The legislatures want the testator to go through a ritual, so that it is
clear that the testator is making a thoughtful disposition of his or her property. The testator usually
has to sign or acknowledge his or her will in the presence of two or more disinterested witnesses.89
The main components of a valid will execution are (1) a writing, (2) signature by the testator and, (3)
attestation by witnesses. Most of the litigation challenging the validity of the will execution process
involves one or all of these elements. Therefore, the three parts of this chapter include cases
analyzing those issues. Some states require the testator’s signature to be at the end of the will. This is
referred to as a subscription. In a few states, the testator is required to publish his or her will by
telling the witnesses that the written instrument is his or her will.

Va. Code Ann. 64.2-403. Execution of wills; requirements
A. No will shall be valid unless it is in writing and signed by the testator, or by some other person in
the testator's presence and by his direction, in such a manner as to make it manifest that the name is
intended as a signature.
***********************
C. A will not wholly in the testator's handwriting is not valid unless the signature of the testator is
made, or the will is acknowledged by the testator, in the presence of at least two competent
witnesses who are present at the same time and who subscribe the will in the presence of the
testator. No form of attestation of the witnesses shall be necessary.
11.2

Writing

The writing requirement comes from the Statute of Frauds and the Wills Act. The purpose
of the writing mandate is evidentiary. At the time the will is submitted for probate, the testator is no
longer available to be questioned by the court. The best evidence of the testator’s intentions is the
written instrument. What constitutes a writing? When the original Wills Act was enacted, the answer
to that question was relatively easy. Nonetheless, times have changed and the manner in which
people communicate is evolving. This may complicate the wills writing requirement. Is a text
message a writing? What about an email? At least one state legislature permits electronic wills.

N.R.S. 133.085. Electronic will (Nevada)
1. An electronic will is a will of a testator that:
89

La. Civ. Code Ann. art. 1577 (2016)(requires two witnesses and a notary.)

472

(a) Is written, created and stored in an electronic record;
(b) Contains the date and the electronic signature of the testator and which includes, without
limitation, at least one authentication characteristic of the testator; and
(c) Is created and stored in such a manner that:
(1) Only one authoritative copy exists;
(2) The authoritative copy is maintained and controlled by the testator or a custodian designated by
the testator in the electronic will;
(3) Any attempted alteration of the authoritative copy is readily identifiable; and
(4) Each copy of the authoritative copy is readily identifiable as a copy that is not the authoritative
copy.
2. Every person of sound mind over the age of 18 years may, by last electronic will, dispose of all of
his or her estate, real and personal, but the estate is chargeable with the payment of the testator's
debts.
3. An electronic will that meets the requirements of this section is subject to no other form, and may
be made in or out of this State. An electronic will is valid and has the same force and effect as if
formally executed.
4. An electronic will shall be deemed to be executed in this State if the authoritative copy of the
electronic will is:
(a) Transmitted to and maintained by a custodian designated in the electronic will at the custodian’s
place of business in this State or at the custodian’s residence in this State; or
(b) Maintained by the testator at the testator’s place of business in this State or at the testator’s
residence in this State.
5. The provisions of this section do not apply to a trust other than a trust contained in an electronic
will.
6. As used in this section:
(a) “Authentication characteristic” means a characteristic of a certain person that is unique to that
person and that is capable of measurement and recognition in an electronic record as a biological
aspect of or physical act performed by that person. Such a characteristic may consist of a fingerprint,
a retinal scan, voice recognition, facial recognition, a digitized signature or other authentication using
a unique characteristic of the person.
(b) “Authoritative copy” means the original, unique, identifiable and unalterable electronic record of
an electronic will.
(c) “Digitized signature” means a graphical image of a handwritten signature that is created,
generated or stored by electronic means.
Problems
1. Anthony sent his lawyer the following email message “I leave my house to Cory Baker; I leave my
season football tickets to Benny; I leave the rest of my estate to my son, Dennis.” The following
473

information was included at the end of the email Anthony Turner (Testator, 11-23-10); Betty Green
(Witness 1, 11-23-10); Sally Matthews (Witness 2, 11-23-10). Does this satisfy the writing
requirement under the common law and/or under the Nevada statute?
2. Gordon Beckerson recorded the following on his IPhone: “My name is Gordon Beckerson. I am
of sound mind and body. Today is August 12, 2011. I am here with three people who are willing to
witness my will. Say hello Janet Watson. Smile for the camera Terrie Baker. You’re up next Charlie
Davis. I would like to have my estate split evenly between State Law School and State Medical
School. I am intentionally disinheriting my children, Skip and Muffie.” Gordon took the sim card
out of the telephone and placed it in an envelope. Then, he signed the seal of the envelope and
mailed it to his lawyer. Later, he called the lawyer and said, “Don’t watch the video I’m sending you
until after I’m dead and buried. A month later, Gordon committed suicide. Does this satisfy the
writing requirement under the common law and/or under the Nevada statute?
11.3

Signed by the Testator

The testator can sign the will or have someone else sign on his or her behalf. The will must
be signed in the presence of the required number of witnesses. The purpose of that requirement is
to protect the testator from fraud, duress and undue influence. In some jurisdictions, the testator has
the option of signing the will in the presence of the witnesses or acknowledging to the witnesses that
the signature on the will belongs to him or her.
11.3.1 Signature Problems
The preference is for the testator to sign his or her full legal name at the end of the will.
However, courts have found marks, crosses, abbreviations, or nicknames to be sufficient to satisfy
the signature requirement. A testator can legally authorize a person to sign on the testator’s behalf.
The testator can also have someone assist him or her in signing the will.

Taylor v. Holt, 134 S.W.3d 830 (Tenn. Ct. App. 2003)
SWINEY, J.
Steve Godfrey prepared his last will and testament on his computer and affixed his computer
generated signature at the end. He had two neighbors witness the will. Mr. Godfrey died
approximately one week later. Doris Holt (“Defendant”), Mr. Godfrey’s girlfriend, submitted the
will for probate. Donna Godfrey Taylor (“Plaintiff”), Mr. Godfrey’s sister, filed a complaint alleging,
in part, that the will was not signed and claiming that Mr. Godfrey had died intestate. The Trial
Court granted Defendant summary judgment holding there were no undisputed material facts and
that all legal requirements concerning the execution and witnessing of a will had been met. Plaintiff
appeals. We affirm.
Background

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Steve Godfrey (“Deceased”) prepared a document in January of 2002, purporting to be his last will
and testament. The one page document was prepared by Deceased on his computer. Deceased
asked two neighbors, Hershell Williams and Teresa Williams to act as witnesses to the will. Deceased
affixed a computer generated version of his signature at the end of the document in the presence of
both Hershell and Teresa Williams. Hershell and Teresa Williams then each signed their name below
Deceased’s and dated the document next to their respective signatures. In the document, Deceased
devised everything he owned to a person identified only as Doris. Deceased died approximately one
week after the will was witnessed.
Defendant, Deceased’s girlfriend, who lived with Deceased at the time of his death, filed an Order
of Probate attempting to admit the will to probate and requesting to be appointed the personal
representative of the estate. Defendant also filed affidavits of both Hershell and Teresa Williams
attesting to the execution of the will. The affidavits each state that the affiant was a witness to
Deceased’s last will and testament and that each had signed at Deceased’s request in the presence of
both Deceased and the other witness. The affidavits both also state: “That the Testator, Steve
Godfrey personally prepared the Last Will and Testament on his computer, and using the computer
affixed his stylized cursive signature in my sight and presence and in the sight and presence of the
other attesting witness....” Further, each affidavit states that the affiant “was of the opinion that the
Testator, Steve Godfrey, was of sound mind” at the time the will was witnessed.
Plaintiff, Deceased’s sister, filed a complaint alleging, inter alia, that she is the only surviving heir of
Deceased, that Deceased died intestate, that the document produced for probate was void because it
did not contain Deceased’s signature, and that Doris Holt has no blood relation or legal relation to
the Deceased and should not have been appointed administratrix of Deceased’s estate. Defendant
filed a motion to dismiss or in the alternative for summary judgment claiming that all of the legal
requirements concerning the execution and witnessing of a will under Tennessee law had been met
and filed the supporting affidavits of Hershell and Teresa Williams.
The Trial Court entered an order on December 23, 2002, granting Defendant summary judgment.
The December order held that all of the legal requirements concerning the execution and witnessing
of a will under Tennessee law had been met and held that Defendant was entitled to summary
judgment as a matter of law. Plaintiff appeals.
Discussion
Although not stated exactly as such, Plaintiff raises two issues on appeal: 1) whether the Trial Court
erred in finding that the computer generated signature on the will complied with the legal
requirements for the execution of a will, and, thus, erred in granting Defendant summary judgment;
and, 2) whether an alleged beneficiary under a will should be allowed to receive benefits from the
estate even though the will refers to the beneficiary only by her first name. We will address each
issue in turn.
Tenn. Code Ann. § 32-1-104 addresses the requisite formalities for the execution and witnessing of a
will in Tennessee and states:
The execution of a will, other than a holographic or nuncupative will, must be by the signature of
the testator and of at least two (2) witnesses as follows:
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(1) The testator shall signify to the attesting witnesses that the instrument is his will and either:
(A) Himself sign;
(B) Acknowledge his signature already made; or
(C) At his direction and in his presence have someone else sign his name for him; and
(D) In any of the above cases the act must be done in the presence of two (2) or more attesting
witnesses.
(2) The attesting witnesses must sign:
(A) In the presence of the testator; and
(B) In the presence of each other.
Tenn. Code Ann. § 32-1-104 (1984) The definition of “signature” as used in the statute is provided
by Tenn. Code Ann. § 1-3-105, which states: “As used in this code, unless the context otherwise
requires: ... ‘Signature’ or ‘signed’ includes a mark, the name being written near the mark and
witnessed, or any other symbol or methodology executed or adopted by a party with intention to
authenticate a writing or record, regardless of being witnessed.” Tenn. Code Ann. § 1-3-105(27)
(1999).
We begin by considering whether the Trial Court erred in finding that the computer generated
signature on the will complied with the legal requirements for the execution of a will, and, thus,
erred in granting Defendant summary judgment.
Plaintiff claims that the will was not signed. Plaintiff’s brief argues “there is no indication of any type
or nature that there was a mark of any type made by the testator.” Plaintiff cites to Sunderland v. Bailey
(In Re. Estate of Wait), a 1957 case in which this Court found that “the testatrix may have made a
mark of some sort, either an initial or one or more letters of her signature, on the will but she clearly
indicated that she did not consider such mark or marks to constitute her signature.” Sunderland v.
Bailey (In Re. Estate of Wait), 43 Tenn. App. 217, 306 S.W.2d 345, 348 (1957). The witnesses in Estate
of Wait testified that the testatrix had stated to them when the will was witnessed that she could not
sign the will at that time, but would sign it later. Id. at 347. The Wait testatrix actually signed the will
a day or two after it was witnessed. Id.
The Wait testatrix stated to the witnesses that she did not consider any mark to be her signature and
this is borne out by the fact that she later signed the will. The Wait Court did not “find it necessary
or proper ... to rule whether or not a testator may legally sign a will by mark.” Id. at 348. Rather, the
Court upheld the determination that the will was not entitled to probate based upon the fact that the
will was not executed and witnessed in conformity with the statute. Id. at 349.
The situation in Estate of Wait is dissimilar to the instant case. In the case at hand, Deceased did
make a mark that was intended to operate as his signature. Deceased made a mark by using his
computer to affix his computer generated signature, and, as indicated by the affidavits of both
witnesses, this was done in the presence of the witnesses. The computer generated signature made
by Deceased falls into the category of “any other symbol or methodology executed or adopted by a
party with intention to authenticate a writing or record,” and, if made in the presence of two
attesting witnesses, as it was in this case, is sufficient to constitute proper execution of a will.
Further, we note that Deceased simply used a computer rather than an ink pen as the tool to make
his signature, and, therefore, complied with Tenn. Code Ann. § 32-1-104 by signing the will himself.
476

Defendant made a properly supported motion for summary judgment claiming there were no
disputed issues of material fact and that Defendant was entitled to judgment as a matter of law.
Defendant supported this assertion with the affidavits of Hershell and Teresa Williams, the
witnesses to the will, attesting to the circumstances surrounding the execution of the will. As
Defendant made a properly supported motion, the burden shifted to Plaintiff to set forth specific
facts establishing the existence of disputed, material facts which must be resolved by the trier of fact.
Plaintiff failed to do this. Plaintiff produced a letter that Plaintiff’s appellate brief claims “set out a
very different picture of [Deceased’s] feelings towards [Defendant].” However, this letter has
absolutely no relevance as to whether the will was properly executed and witnessed. Plaintiff failed
to set forth specific facts establishing the existence of disputed, material facts regarding the
execution of the will which must be resolved by the trier of fact.
There are no disputed material facts and, as discussed above, Defendant is entitled to judgment as a
matter of law because the will was executed and witnessed in conformity with the statute. Thus, we
hold that the Trial Court did not err in holding that the legal requirements for the execution and
witnessing of a will had been met.
The other issue Plaintiff raises concerns whether an alleged beneficiary under a will should be
allowed to receive benefits from the estate even though the will refers to the beneficiary by first
name, but fails to state the beneficiary’s last name. The will devises everything Deceased owned to
someone named Doris, but fails to give a last name for Doris. Plaintiff apparently raises an issue
regarding whether the Doris named in the will is the Defendant.
The Trial Court based its decision to grant summary judgment upon whether the will in question
met the statutorily prescribed elements to be a valid last will and testament. The Trial Court did not
consider or decide whether the Doris named in the will is the Defendant as this issue is not germane
to whether the will was properly executed and witnessed in conformity with Tennessee law. We
agree. Defendant was entitled to summary judgment because the will was properly executed and
witnessed in conformity with Tennessee law. The identification of the beneficiary has no bearing on
the dispositive issue before the Trial Court of whether this was Deceased’s validly executed and
witnessed last will and testament. We affirm the grant of summary judgment.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Court for such
further proceedings as may be required, if any, consistent with this Opinion and for collection of the
costs below. The costs on appeal are assessed against the Appellant, Donna Godfrey Taylor, and her
surety.

Matter of Will of Bernatowicz, 233 A.D.2d 838 (N.Y. App. Div. 1996)
MEMORANDUM:
We conclude that Surrogate’s Court erred in refusing to admit the will of decedent on the ground
that proponent failed to demonstrate due execution of the will. The record shows that decedent,
who was very ill, attempted to sign his name to his will, but had difficulty doing so. When, after
477

several attempts, decedent continued to experience difficulty, decedent’s counsel advised proponent
that she could aid decedent by steadying his hand. Counsel further advised proponent that she could
not sign the document for decedent or move his hand. The Surrogate concluded that proponent
controlled rather than assisted decedent in signing the document and that its execution was therefore
invalid. We disagree.
The question whether a signature is assisted or controlled does not turn on the extent of the aid, but
rather whether the act of “signing was in any degree an act of the testator, acquiesced in and adopted
by him” (Matter of Kearney, 69 App. Div. 481, 483, 74 N.Y.S. 1045). Here, the record establishes that
the act of signing was the act of decedent, acquiesced in and adopted by him and, therefore, the
signature was assisted rather than controlled. We conclude that the fact that decedent did not
request assistance but, rather, that his counsel suggested that he be assisted does not render the
signature invalid. We further conclude that the testimony of the witnesses regarding the
circumstances surrounding the witnessing of the will demonstrates compliance with the other
requirements of EPTL 3-2.1. That testimony sufficiently establishes that decedent signed the
document purported to be his will and requested the witnesses to sign the document (see generally,
Matter of Dujenski, 147 A.D.2d 958, 537 N.Y.S.2d 402). We reject the contention of respondents that
the execution of the will was invalid because decedent declared the document to be his will before,
rather 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
Orleans County Surrogate’s Court for further proceedings on the petition.
Order reversed on the law without costs, petition reinstated and matter remitted to Orleans County
Surrogate’s Court for further proceedings on petition.
BALIO, Justice, dissenting.
I respectfully dissent. The Surrogate found that the testator did not ask for assistance in signing his
purported last will and testament and that, based upon the substantial difference in the manner and
quality of the testator’s handwriting after Sherry Callara physically assisted in the signing, she did
more than steady his hand, and that she controlled the movement of his hand. Thus, the court
concluded that the proposed last will and testament had not been duly executed.
EPTL 3-2.1(a)(1) requires that the testator execute a will by signing it or by having another person
sign it in his name “and by his direction”. Where, as here, the testator is physically infirm, a third
person may assist the testator by holding and guiding his hand or arm (see, Matter of Morris, 208
A.D.2d 733, 734, 617 N.Y.S.2d 513; Matter of Kearney, 69 App. Div. 481, 483, 74 N.Y.S.
1045).Although the testator must request the assistance (see, Matter of Morris, supra; Matter of Kearney,
supra),the fact that the testator desired such assistance may be inferred from the circumstances (see,
Matter of Lewis, 193 Misc. 183, 80 N.Y.S.2d 757; Matter of Knight, 87 Misc. 577, 150 N.Y.S. 137).The
hearing testimony establishes that the testator was on his deathbed. In fact, he died a few hours after
attempting to sign the will. Two persons had to prop the testator up to a sitting position so that he
could attempt to sign the will. One of those persons is a legatee under the proposed will and the
other, Sherry Callara, is the mother of the other legatee and is named the executrix under the will.
When the testator appeared to be having difficulty signing his name, his attorney suggested that
Callara assist by holding his hand steady. The Surrogate determined, based upon the testimony and
the appearance of the signature, that the testator did not request Callara’s assistance and that Callara
actually controlled the testator’s conduct in signing the will. That determination, made by the Judge
478

who presided at the hearing and heard the testimony, “is entitled to great weight in this case, which
hinged on the credibility of the witnesses” (Matter of Margolis, 218 A.D.2d 738, 739, 630 N.Y.S.2d
574,see also, Matter of Morris, supra; Hanley v. Williamson, 186 A.D.2d 1010, 590 N.Y.S.2d 821). I
perceive no basis in this record to disturb the Surrogate’s findings.
Notes, Problems, and Questions
1. A testator does not have to sign his written name. A mark qualifies as a signature for purposes of
executing a will. Ferguson v. Ferguson, 47 S.E.2d 346 (Vir. 1948).
2. Electronic signatures are becoming more common and more legally acceptable. Courts have
upheld electronic signatures in real estate transactions (Electronic Transactions Act) and commercial
transactions (Uniform Electronic Signature Act). Some courts permit litigants to file courts
documents electronically (Electronic Signatures and Records Act-the use of an electronic signature
shall have the same validity and effect as the use of a signature offered by hand). This trend has not
taken hold in probate law. Why do you think that is the case?
3. The testator’s signature and the signature of the witnesses do not have to appear on the same
page as long as all of the signature pages are physically connected as part of the will. In re Estate of
Brannon, 441 S.E.2d 248 (Ga. Ct. App. 1994).
4. The testator must sign or acknowledge the will prior to having the witnesses sign it. The
witnesses’ role is to attest that the testator has signed or acknowledged the will. Thus, it makes sense
that the witnesses should not sign first. Nonetheless, if the testator and the witnesses are deemed to
have signed as a part of a single event, the order of the signing is not important. Restatement (Third)
of Property: Wills and Other Donative Transfers 3.1, cmt. M (1999).
5. Subscription Requirement: Some states require the testator’s signature to be at the end of the
will. See 84 Okl.St. Ann. § 854(B)(West 2016).
6. T suffered from Parkinson disease. T attempted to sign his will several times, but the tremors
made it difficult. Finally, A, who was witnessing the signing of the will, grabbed T’s hand and held it
steady, so that he could sign the will. T’s son, B, challenged the validity of the will. What is the
possible outcome of the case? See Matter of Will of Bennatovicz, 233 A.D.2d 838 (N.Y. App. Div. 1996);
Patrick v. Rankin, 506 S.W.2d 853 (Ark. 1976); Matter of Weaver’s Estate, 365 N.E.2d 1038 (Ill. App.
1977); Vandruff v. Rinehart, 29 Pa. 232 (1857).
7. T was in the hospital when he executed his will. While in the process of signing the will, T had a
stroke. T only managed to sign his first name. T died without ever regaining consciousness. Was T’s
will validly executed?
11.4

In the Presence

The testator must sign or acknowledge the will in the presence of the witnesses. The
witnesses are required to sign the will in the presence of the testator and each other. The law does
not provide a specific definition for presence. However, courts have applied two tests when
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determining whether or not the testator met the presence requirement---line of sight and conscious
presence.
11.4.1 Line of Sight
Under the line-of-sight test, the testator is deemed to be in the presence of the witnesses if
they are capable of seeing one another in the act of signing the will. The proponent of the will does
not have to prove that the witnesses actually saw the testator sign the will. He or she just has to
show that the witnesses had the opportunity to see the signing.

Walker v. Walker, 174 N.E. 541 (Ill. 1930)
FARMER, J.
Fred Walker, a son of Alice Ann Walker, deceased, filed in the probate court of Cook county a
petition for the probate of a written instrument alleged to be the last will and testament of his
mother and in which the petitioner was designated as the chief beneficiary and executor. On a
hearing of the petition on July 14, 1927, the will was admitted to probate. John Walker, another son
of the deceased, and two of his sisters, prosecuted an appeal to the circuit court of Cook county.
The testimony of the three subscribing witnesses to the will was presented, and the court found the
instrument to be the last will and testament of Alice Ann Walker and an order was entered that the
will be admitted to probate. An appeal was prosecuted by John Walker to this court (336 Ill. 191,
168 N.E. 299), and the cause was transferred to the Appellate Court for the First District, where the
judgment of the circuit court was affirmed (256 Ill. App. 218). A petition for writ of certiorari has
been allowed by this court to review the judgment of the Appellate Court.
It is contended by plaintiff in error that the instrument was not signed or acknowledged in the
presence of two credible witnesses, and was not attested by two such witnesses in the presence of
the testatrix, as provided by section 2 of the Wills Act (Cahill’s Rev. St. 1927, c. 148, par. 2).
The record as presented discloses the following facts concerning the testatrix and the execution,
acknowledgment, and attestation of her alleged will: The instrument consisted of three typewritten
pages, and on the margin of each page the signature of the testatrix appears. The last page contains
the further signature of the testatrix, and the instrument is dated March 27, 1926. Immediately
following her signature is a formal attestation clause containing the language frequently used in such
clauses. Subscribed to this clause are the names and addresses of Robert Whitelaw, Lucy M.
Whitelaw, and David H. Frost. These witnesses testified upon the hearing that they believed the
testatrix at the time she executed the instrument was of sound mind and memory and that there was
no fraud, duress, or undue influence. On Saturday afternoon, March 27, 1926, Fred Walker, a son of
the testatrix, talked with the Whitelaws at their residence in Park Ridge over the telephone and asked
if they and Frost, a brother of Mrs. Whitelaw, would witness his mother’s will. Whitelaw said they
would do so, and Fred told him he would bring his mother to Whitelaw’s home. One of the
Whitelaws either telephoned Frost, who lived next door, or went to his home and spoke to him
about it, and he agreed to act as a witness.

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Later in the afternoon Fred and his mother arrived at the Whitelaw residence in a Hupmobile sedan.
The son parked the car facing east and immediately in front of the Whitelaw residence, which faced
south on this street. The testatrix remained seated in the rear seat of the automobile and on the side
nearest the house. Her location was about thirty-five feet from the south windows of the Whitelaw
living room. The Whitelaw bungalow is located on the north side of the street, which runs east and
west in front of the house. On the front of the house was a porch about six or eight feet wide. It
was roofed and was about four feet above the walk which led to the house. There were six or seven
steps leading to the porch from the sidewalk, but no steps from the porch to the inside of the house.
There was a little railing, about two feet high on the outside of the porch, which enclosed it. Three
windows on the south side of the living room faced on this porch. Inside of the living room was a
library table about two feet wide and about forty-five inches long which stood lengthwise in front of
two of the living room windows and about three inches from them.
The son went into the house where Mr. and Mrs. Whitelaw and Frost were, produced the
instrument, and requested the three persons to sign it as witnesses. Whitelaw said he wanted to make
sure it was the will and signature of the testatrix, and he took the will and went out to the car in
which the testatrix was sitting. The other parties remained in the house. They saw Whitelaw go to
the car and hand the instrument to the testatrix, but did not hear anything that was said. Whitelaw
stated on the hearing that he asked the testatrix if it was her will and signature, and she said that it
was. He then returned to the house with the will and told the other witnesses that he was satisfied it
was her will and signature and it was all right for them to sign it as witnesses. The writing was placed
upon the table in the living room and signed by the three subscribing witnesses. Whitelaw signed his
name first, standing at the north side of the table. He could not say that the testatrix was looking at
the house when he signed, but when he looked out he saw her and it is his recollection she was
looking at him, but he could not say for sure. Mrs. Whitelaw signed second, and she stood at the
side of the table, facing east. As she signed she looked out of the window and saw the testatrix, and
the testatrix was facing east, but Mrs. Whitelaw said she saw the testatrix’s eyes looking at witness in
the house. Frost signed last, and was standing in the same position that Whitelaw was when the
latter executed the instrument. Frost stated when he signed he looked out and saw the testatrix
looking toward the house, but later stated that whether it was at the time he was signing or not he
did not know, but he did know that she was looking at the window when he looked out.
After the witnesses signed their names, Fred took possession of the will. Mrs. Whitelaw walked out
to the automobile where the testatrix was and inquired about her health. Shortly afterward Whitelaw,
Frost, and Fred came out of the house and walked toward the car. When about ten feet from the
car, Frost spoke to the testatrix, though he testified he was not acquainted with her, and went to his
home. Fred had the folded instrument in his hand and handed it to the testatrix. The Whitelaws
were standing by the side of the car, or nearby, and Fred thanked them for signing the will. The
testatrix nodded her head in assent and said she was glad it was done. This was the only reference
made to the will by the testatrix in the presence of Mrs. Whitelaw, and at that time Frost had gone to
his home.
Section 2 of the Statute of Wills (Cahill’s Rev. St. 1927, p. 2503) provides that all wills shall be
reduced to writing and signed by the testatrix, or by some person in her presence and by her
direction, and attested in the presence of the testatrix by two or more credible witnesses, two of
whom shall declare on oath before the county court of the proper county that they were present and
saw the testatrix sign the will in their presence or acknowledge the same to be her act and deed, and
that they believed the testatrix to be of sound mind and memory at the time of signing or
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acknowledging the will. It is indispensable that the statutory requirements be complied with to make
a valid will. Harris v. Etienne, 315 Ill. 540, 146 N.E. 547.It is not necessary that the attesting witnesses
see the signature of the testatrix upon the face of the will, or that an acknowledgment of the
signature be made to them by the testatrix, or that they know that the instrument is a will, but the
statutory requirements are satisfied if the testatrix acknowledges the execution of the will. Thornton v.
Herndon, 314 Ill. 360, 145 N.E. 603; In re Will of Barry, 219 Ill. 391, 76 N.E. 577; Hoover v. Keller, 339
Ill. 126, 171 N.E. 163.
In the instant case the instrument was signed before the three witnesses saw it; hence it was
necessary for the testatrix to acknowledge execution thereof to at least two of the witnesses.
Testatrix asked none of the witnesses to subscribe their names to the instrument, but she did
acknowledge to Whitelaw, one of the subscribing witnesses, before any of the three witnesses
affixed their signatures, that the instrument was her will and that her signature thereon was genuine.
Frost had no information relative to an acknowledgment by the testatrix except as told to him by
Whitelaw. Mrs. Whitelaw received like information from her husband, and, after signing as a witness,
she was present at the car when the son presented the folded instrument to his mother and thanked
the Whitelaws for their services. The mother nodded assent and said she was glad it was done. This
act on the part of the testatrix, who was somewhat lame, but who, so far as this record shows, had
no other physical or mental infirmity, cannot be construed as an acknowledgment of her execution
of the will. She merely joined in the expression of her son in thanking the Whitelaws for their
trouble or inconvenience. The statute does not permit or contemplate that witnesses are to be
secured for a testatrix, that they shall subscribe their names to a writing which only one of the
witnesses knows and states to be the will of the testatrix, and thereafter have their action, as well as
the instrument, approved or ratified by the testatrix.
The further question to be considered is whether the instrument was attested in the presence of the
testatrix. She was about 75 years of age at the time here in question, and remained seated in the rear
seat of the sedan automobile which her son had parked in front of the Whitelaw residence. She sat
facing east, and was about thirty-five feet distant from the table situated in the living room and in
front of the porch windows of the Whitelaw house, and upon which table the alleged will was placed
when the three witnesses signed their names thereto. Fred Walker, a son of testatrix, went into the
Whitelaw house, where he produced the will and asked the three witnesses to sign it. One of them,
Whitelaw, took the will and went out to the car where the testatrix was and asked her about the
instrument and her signature. He returned into the living room of the house with the will and
reported his interview with her before the witnesses signed their names. The will was thereafter
given to the son, who remained in the room while the attesting witnesses subscribed their names. He
folded up the instrument and delivered it to the testatrix. There is nothing in the record showing
that she saw the will from the time it was in Whitelaw’s possession at the car until given to her by
her son Fred. Neither is there any proof that she ever saw the signatures of the subscribing witnesses
after they were affixed. What constitutes attestation in the presence of a testator has frequently been
explained, and a general statement of the rule is that the testator must be so situated, both as to the
will and the witnesses, that he may, if he chooses, see both in the act of attestation. The plain
meaning of the law is that both the will and witnesses must be in the presence of the testator, so that
he may without any effort or change of his position see both and see the act of attestation. It is not
an attestation in his presence if he cannot see the act, but merely concludes from the surrounding
circumstances and what he understands is going on that an attestation is taking place. It is immaterial
whether the attestion is in the same room or an adjoining one, but the essential thing is that the
testator must have an opportunity of personal knowledge, by his own vision and in his actual
482

position, that the witnesses are signing their names to the instrument which he has signed as his will
in accordance with his request. Quirk v. Pierson, 287 Ill. 176, 122 N.E. 518. It is not enough for the
testator to be able to judge from such act as he may see that the witnesses were signing his will. It is
essential to the attestation which the law requires that the testator have the opportunity of seeing the
very act of attestation, the will, the witnesses and their act. Snyder v. Steele, 287 Ill. 159, 122 N.E. 520.
All the authorities declare that the object of the law is to prevent fraud and imposition upon the
testator or the substitution of a surreptitious will, and to effect that object it is necessary that the
testator shall be able to see and know that the witnesses have affixed their names to the paper which
he has signed and acknowledged as his will. As we view the facts presented by this record, there was
no way testatrix could have known of her own knowledge that her will was being signed by the three
subscribing witnesses and that she had not been imposed upon.
Counsel for defendant in error asserts that the attestation clause recites all the necessary facts, under
the statute, for admitting the will to probate, and was entitled to weight on the hearing in the circuit
court. An attestation clause in proper from is entitled to due weight in determining whether a will
was legally executed, but such a clause is not conclusive. Harris v. Etienne, supra.
In our opinion the requirements of the statute have not been complied with, and the judgment of
the Appellate Court and the order of the circuit court of Cook County are reversed.
Judgments reversed.
11.4.2 Conscious Presence
In order to satisfy the conscious presence test, the witness is in the presence of the testator if
the testator, through sight, hearing, or general consciousness of events, comprehends that the
witness is in the act of signing.

Whitacre v. Crowe, 972 N.E.2d 659 (Ohio Ct. App. 2012)
CARR, Judge.
Appellant, Victoria Hobson, appeals the judgment of the Medina County Court of Common Pleas,
Probate Division. This Court affirms.
I.
Kay Whitacre had five adult children at the time of her death. Her will was admitted to probate. Her
daughter Victoria was named as the sole beneficiary, while her son Michael was named as executor.
Kay’s three remaining children, Shawn, Angie, and Nick, were not mentioned in the will.
Subsequently, Shawn, Angie, and Nick filed a complaint to contest the will. They later moved for
summary judgment. Victoria and Michael responded in opposition. The trial court granted the
plaintiffs’ motion for summary judgment, concluded that Kay’s will was not executed pursuant to
the formalities required in R.C. 2107.03, and revoked an earlier order admitting the will to probate.
Victoria appealed, raising three interrelated assignments of error for review.
II.
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ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN FINDING THAT THE EXECUTION OF THE WILL
DID NOT MEET THE FORMALITIES REQUIRED UNDER [] R.C. 2107.03.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN GRANTING PLAINTIFF/APPELLEE’S MOTION FOR
SUMMARY JUDGMENT FINDING THAT THE WITNESSES WERE NOT IN THE
CONSCIOUS PRESENCE OF KAY WHITACRE, THE TESTATOR.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN REVOKING ITS PRIOR ORDER ADMITTING THE
PROPERLY EXECUTED WILL TO PROBATE.
Victoria challenges the trial court’s granting of summary judgment in favor of the plaintiffs which
resulted in the court’s revocation of its prior order admitting Kay’s will to probate. Her arguments
are not persuasive.
This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio
St.3d 102, 105, 671 N.E.2d 241 (1996). This Court applies the same standard as the trial court,
viewing the facts in the case in the light most favorable to the non-moving party and resolving any
doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12, 467
N.E.2d 137 (6th Dist. 1983).
To prevail on a motion for summary judgment, the party moving for summary judgment must be
able to point to evidentiary materials that show that there is no genuine issue as to any material fact,
and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d
280, 293, 662 N.E.2d 264 (1996). Once a moving party satisfies its burden of supporting its motion
for summary judgment with sufficient and acceptable evidence pursuant to Civ. R. 56(C), Civ. R.
56(E) provides that the non-moving party may not rest upon the mere allegations or denials of the
moving party’s pleadings. Rather, the non-moving party has a reciprocal burden of responding by
setting forth specific facts, demonstrating that a “genuine triable issue” exists to be litigated for trial.
State ex. Rel. Zimmerman v. Tompkins. 75 Ohio St.3d 447, 449, 663 N.E.2d 639 (1996).
The non-moving party’s reciprocal burden does not arise until after the moving party has met its
initial evidentiary burden. To do so, the moving party must set forth evidence of the limited types
enumerated in Civ.R. 56(C), specifically, “the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact[.]” Civ.R.
56(C) further provides that “[n]o evidence or stipulation may be considered except as stated in this
rule.”
R.C. 2107.18 provides that “[t]he probate court shall admit a will to probate if * * * the execution of
the will complies with the law in force at the time of the execution of the will in the jurisdiction in
which it was executed, with the law in force in this state at the time of the death of the testator, or
with the law in force in the jurisdiction in which the testator was domiciled at the time of the
484

testator’s death.”
Kay purported to execute her will in Ohio on May 14, 2010. The applicable version of R.C. 2107.03,
in effect at both the time of the execution of the will and at the time of Kay’s death, states:
Except oral wills, every last will and testament shall be in writing, but may be handwritten or
typewritten. The will shall be signed at the end by the testator making it or by some other person
in the testator’s conscious presence and at the testator’s express direction, and be attested and
subscribed in the conscious presence of the testator, by two or more competent witnesses, who
saw the testator subscribe, or heard the testator acknowledge the testator’s signature.
For purposes of this section, “conscious presence” means within the range of any of the testator’s
senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other
distant communication.
In their motion for summary judgment, the plaintiffs challenged the valid execution of Kay’s will on
two grounds, specifically, (1) that Kay did not sign her will in the conscious presence of the
witnesses because the witnesses viewed the signing from another room by way of a video monitor,
and (2) that the witnesses did not attest and subscribe the will in the conscious presence of the
testator. In its order granting summary judgment to the plaintiffs, the trial court found that the
witnesses “technically” never saw Kay sign her will because they viewed the event on a monitor, and
that the witnesses were not in the conscious presence of Kay when she signed her will. The trial
court concluded that the execution of the will did not meet the formal requirements of R.C. 2107.03
and it, therefore, revoked its prior order admitting the will to probate. Although the trial court’s
findings are inartfully crafted, this Court concludes that the trial court properly granted summary
judgment in favor of Shawn, Angie, and Nick, and therefore properly revoked its prior order
admitting Kay’s will to probate.
No party argues that the indecipherable scribble on the will does not constitute Kay’s signature, and
we do not address that matter further.
Victoria argues that the trial court erred because genuine issues of material fact existed regarding
whether the two witnesses attested and subscribed the will in the conscious presence of the testator.
Because that issue is dispositive of the appeal, we confine our analysis to that issue.
Subscription is “the physical act of affixing a signature for purposes of identification.” Jackson v.
Estate of Henderson, 8th Dist. No. 93231, 2010-Ohio-3084, 2010 WL 2636725. Attestation, a separate
and distinct act from subscription, “is the act by which the subscribing witnesses hear the testator
acknowledge his signature or see him sign the document in their presence.” Id., see also Timberlake v.
Sayre, 4th Dist. No. 09CA3269, 2009-Ohio-6005, 2009 WL 3790495.
By the plain language of R.C. 2107.03, the witnesses attesting and subscribing the will must do so
“within the range of any of the testator’s senses,” which expressly excludes sights and sounds relayed
through electronic means. The evidence appended to both the motion for summary judgment and
response in opposition clearly establishes that the monitor involved in this situation worked one way
in that it only allowed the witnesses to see and hear Kay, while Kay could not see and hear the
witnesses via any electronic means. To the extent, then, that any party has argued that the use of the
audio/video monitor precluded the witnesses from being in Kay’s “conscious presence,” such an
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argument is a red herring.
Ohio. Historically, however, other jurisdictions which required witnesses to attest and subscribe the
will in the presence of the testator interpreted “presence” to mean “conscious presence.” See, e.g., In
re Estate of Holden, 261 Minn. 527, 113 N.W.2d 87 (1962); In re Demaris’ Estate, 166 Or. 36, 110 P.2d
571, 581 (1941); Calkins v. Calkins, 216 Ill. 458, 75 N.E. 182, 183-184 (1905); Watson v. Pipes, 32 Miss.
451 (1856); Nock v. Nock’s Exrs., 51 Va. 106 (1853); Nichols v. Rowan, 422 S.W.2d 21, 24 (Tex. Civ.
App. 1967). The test has been referred to as a “mental apprehension test” and is stated as follows:
“When a testator is not prevented by physical infirmities from seeing and hearing
what goes on around him, it is the general, if not universal, rule that his will is
attested in his presence if he understands and is conscious of what the witnesses
are doing when they write their names, and can, if he is so disposed, readily
change his position so that he can see and hear what they do and say. * * * In
other words, if he has knowledge of their presence, and can, if he is so disposed,
readily see them write their names, the will is attested in his presence, even if he
does not see them do it, and could not without some slight physical exertion. It is
not necessary that he should actually see the witnesses, for them to be in his
presence. They are in his presence whenever they are so near him that he is
conscious of where they are and of what they are doing, through any of his
senses, and are where he can readily see them if he is so disposed. The test,
therefore, to determine whether the will of a person who has the use of all his
faculties is attested in his presence, is to inquire whether he understood what the
witnesses were doing when they affixed their names to his will, and could, if he
had been so disposed, readily have seen them do it.”
Demaris at 582, quoting Healey v. Bartlett, 73 N.H. 110, 59 A. 617, 618 (1904).
In In re Estate of Holden, 113 N.W.2d at 92-93, the Supreme Court of Minnesota concluded that
witnesses signing the will while standing eight feet away in the doorway to the testator’s room were
in the testator’s “range of vision” and, therefore, within his conscious presence. In Nock, 51 Va. at
126, the Supreme Court of Appeals of Virginia concluded that the witnesses who attested the will
did so in the conscious presence of the testator even though they were in another room, 16–17 feet
away, and the testator could not from his position see the witnesses’ forearms, writing hands, or the
will itself without changing position. The court concluded that the conscious presence test was met,
however, because the testator could have seen the witnesses attesting the will merely by changing his
position. Id.
California has also construed the presence requirement by applying the “conscious presence” test. In
re Tracy’s Estate, 80 Cal.App.2d 782, 182 P.2d 336, 337 (1947). The Tracy court, citing a long history
of cases from various states, set out the following elements to establish conscious presence, where
the testator cannot actually view the witnesses’ signing: “(1) the witnesses must sign within the
testator’s hearing, (2) the testator must know what is being done, and (3) the signing by the witnesses
and the testator must constitute one continuous transaction.” Id. In Tracy, the witnesses signed the
will in another room 25 feet away and, although the testator could not see them, she could hear the
witnesses’ conversation evidencing their contemporaneous signing. Given the timing of the
witnesses’ signatures immediately after the testator’s and the testator’s ability to hear the witnesses
and understand by their conversation that they were attesting her will, the court concluded that the
486

will was properly executed. Id.
The Supreme Court of Mississippi explained the rationale behind the conscious presence test. In re
Estate of Jefferson, 349 So.2d 1032 (Miss. 1977). The Jefferson court wrote that “the purpose of signing
by the attesting witnesses in the presence of the testator is that the testator will know that the
witnesses are attesting the testator’s will and not another document; that the witnesses will know the
same; these reasons being to avoid imposition or fraud on either the testator or the witnesses by
substitution of another will in place of that signed by the testator; and that the witnesses will be
reasonably satisfied that the testator is of sound and disposing mind and capable of making a will.”
Id. at 1036. In that case, the high court concluded that a witness who telephoned the testator and
informed him that he was then signing and attesting the testator’s will was not in the conscious
presence of the testator.
More recently, the Supreme Court of New Hampshire relied on the conscious presence test as
enunciated in Healey, supra, and concluded that the witnesses had not attested the will in the testator’s
presence. In re Estate of Fischer, 152 N.H. 669, 886 A.2d 996 (2005). In Fischer, the testatrix was
bedridden with cancer. After signing her will in her bed in front of the witnesses, the witnesses
signed the will on the porch. The court concluded that there was no evidence in the record that the
testatrix could have readily seen or heard what the witnesses were doing but for her infirmities or
that they were so near the testatrix that she was conscious of their actions when they signed the will.
Id. at 999. Moreover, the high court concluded that the witnesses’ signing in the presence of the
testatrix’ attorney was not adequate to meet the statutory requirement. Id. at 1000.
Based on our review of the considerations long recognized throughout the country, we adopt a
“conscious presence” test in line with historical precedent which requires that the subscribing and
attesting witnesses be in the testator’s range of vision or that the testator hear and understand that
the witnesses are subscribing and attesting the will at the time they are doing so.
Sara White and Joseph Reich were asked to witness the execution of Kay’s will. In this case, both
Ms. White and Mr. Reich testified during their depositions that Kay, who was on another floor of
the home when she signed her will, could not see them from either bedroom. In fact, Ms. White
understood that Kay did not want the witnesses in the same room with her because she did not want
any strangers to see her in her state of illness. Ms. White testified that she had no knowledge about
whether Kay could hear the witnesses on the floor below her. Both witnesses testified that they
signed the will within mere feet of one another but that Kay did not see the witnesses sign from
upstairs. Mr. Reich further testified that no one asked him to communicate in any way with Kay that
day regarding her understanding of the will.
Based on our review of the evidence submitted by Shawn, Angie, and Nick in support of their
motion for summary judgment, this Court concludes that they met their initial burden of presenting
evidence to demonstrate that there was no genuine issue of material fact and that they were entitled
to judgment as a matter of law. The plaintiffs presented evidence that the witnesses were not in
Kay’s range of vision when they subscribed and attested the will and further that she could not hear
what they were doing and, therefore, had no understanding that the witnesses were signing the will.
In support of her reciprocal burden, Victoria appended her affidavit in which she averred that “the
voices of the witnesses and sounds they were making moving around in the living room were clearly
audible and within the sound of my mother’s ears, being only several yards away and directly below
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her in the living room[.]” She further averred that Michael took the will from Kay downstairs to the
witnesses and that “they had a discussion that could be heard in my mother’s upstairs bedroom
while they were signing as witnesses [.]” Victoria also appended the affidavit of Ms. White who
averred that “[d]ue to our close proximity, Kay Whitacre could hear me talking with her son and
daughter, as well as the other witness, Joseph Reich, and I believe she could hear our movements
about the living room, so she was fully aware of our presence[.]”
Based on our review of the evidence, we conclude that Victoria did not meet her reciprocal burden
of responding by setting forth specific facts, demonstrating that a “genuine triable issue” exists to be
litigated for trial. Tompkins, 75 Ohio St.3d 447 at 449, 663 N.E.2d 639. Although she presented
evidence that Kay could hear conversations and movements in the downstairs living room, she
presented no evidence regarding the substance of any of those conversations or that Kay was aware
that the witnesses were subscribing and attesting her will at the time they were doing so.
Accordingly, the trial court did not err when it found that the will was not executed in compliance
with the requirements of R.C. 2107.03, and when it therefore revoked its prior order admitting the
will to probate. Victoria’s assignments of error are overruled.
III.
Victoria’s assignments of error are overruled. The judgment of the Medina County Court of
Common Pleas, Probate Division, is affirmed.
BELFANCE, P.J., Dissenting.
I respectfully dissent from the judgment of the majority, as I would conclude there is a genuine
dispute of material fact precluding summary judgment.
R.C. 2107.03 states in part that the will shall “be attested and subscribed in the conscious presence
of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the
testator acknowledge the testator’s signature.” The statute goes on to define the phrase conscious
presence as “within the range of any of the testator’s senses, excluding the sense of sight or sound
that is sensed by telephonic, electronic, or other distant communication.” R.C. 2107.03. Because
that phrase has been defined by the legislature, I would rely first and primarily on that definition in
determining whether there was a genuine dispute of material fact with respect to whether the will
was attested and subscribed in Kay’s conscious presence.
Viewing the evidence in a light most favorable to Victoria, I would conclude that she met her
reciprocal burden and demonstrated that a genuine dispute of material fact exists with respect to
whether the will was attested and subscribed in Kay’s conscious presence. While I do not dispute
that Victoria’s affidavit is somewhat ambiguous, this Court is required to resolve that ambiguity in
favor of Victoria. See Garner v. Robart, 9th Dist. No. 25427, 2011-Ohio-1519, 2011 WL 1138702.
Victoria’s affidavit states, inter alia, that “the voices of the witnesses and sounds they were making
moving around in the living room were clearly audible and within the sound of [her] mother’s ears *
* *[,]” that the fan was turned off “so the sounds of the witnesses on the first floor were clearly
heard by her,” and, that, at the time the witnesses were going to sign the will the discussion the
witnesses were having “could be heard in [Kay’s] bedroom while [the witnesses] were signing * * *.”
In addition, Victoria’s affidavit indicates that the doors to the upstairs rooms where Kay was at were
kept open and that Kay was “not more than 12–15 feet[ ]” from where the witnesses were located.
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Viewing this evidence in a light most favorable to Victoria, it could be said that the witnesses
attested and subscribed to the will in the conscious presence of Kay, as the witnesses were within
range of her hearing. See R.C. 2107.03. Accordingly, I would conclude that the movant was not
entitled to summary judgment.
12.5

Witnesses

The testator must sign the will before the number of competent witness specified in the
statute. A witness is competent if he or she is over the age of majority and of sound mind. The
witnesses must be disinterested. A disinterested witness is one who does not benefit directly or
indirectly from the will. A will signed by an interested witness is not invalid as long as there are
enough disinterested witnesses who sign the will. Consequently, lawyers should always have more
than the required number of witnesses sign the will. Consider the following example.
Example:
Kate lives in a jurisdiction that requires a will to be witnessed by two disinterested witnesses. Kate
executed a will leaving half of her estate to Della and half to Betsy. The will was signed and
witnessed by Della, Tony and Wayne.
Explanation:
The will was validly executed because it was signed in the presence of Tony and Wayne who are
both disinterested witnesses. Thus, Della gets to take half of the estate even though she witnessed
the will. The outcome would have been different if the will had only been signed by Della and
Tony.

A.C.A. § 28-25-102. Competency, etc., of witnesses
(a) Any person, eighteen (18) years of age or older, competent to be witness generally in this state
may act as attesting witness to a will.
(b) No will is invalidated because attested by an interested witness, but an interested witness, unless
the will is also attested by two (2) qualified disinterested witnesses, shall forfeit so much of the
provision therein made for him or her as in the aggregate exceeds in value, as of the date of the
testator's death, what he or she would have received had the testator died intestate.
(c) No attesting witness is interested unless the will gives to him or her some beneficial interest by
way of devise.
(d) An attesting witness, even though interested, may be compelled to testify with respect to the will.
When evaluating the validity of a will, courts make a two-fold inquiry. They must first
determine whether or not the testator’s will was witnessed by the mandated number of witnesses. In
order for the witnesses to count, they must be competent. Thus, the second thing the court must
decide is whether or not the witnesses were competent to witness and sign the will. In addition to
evaluating the witnesses’ age and mental competency, the court must decide if the witnesses were
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disinterested. The court must also decide what to do with a devise that was made to an interested
witness. The options are for the court to purge the entire devise or to purge the amount of the
devise exceeding what the interested witness would have received under the intestacy system. Once
the devise to an interested witness is purged, that person becomes disinterested, so the will is
validated. In order to save the will, a majority of courts will take the devise away from the interested
witness to make that person a disinterested witness, so he or she can be deemed competent to sign
the will.

Scandurro v. Beto, 234 S.W.2d 695 (Tex. Civ. App. 1950)
LESTER, Chief Justice.
On a former date we handed down an opinion in this cause, in which the judgment of the trial court
was reversed and rendered. Proponent has filed a motion for rehearing, insisting that the judgment
of the trial court should in all things be affirmed, and in the alternative, that the cause be reversed
and remanded to insure a more complete development of the facts in order to prevent a gross
injustice. Upon reconsideration we have decided to withdraw our former opinion of date July 3,
1950, and substitute therefor the following:
On July 25, 1949, Mrs. Mary Eugenia Robertson executed her will, which was not wholly written in
the hand of the testatrix, and on August 26, 1949, she departed this life, leaving an estate of
considerable value. Under the terms of said will her brother and two sisters were the only
beneficiaries. The will was attested by Mrs. Ursula Gandy and Mrs. Billie E. Beto, and none other.
Mrs. Beto, a sister of the deceased, was one of the principal devisees under the terms of said will and
was also appointed independent executrix therein. Mrs. Beto filed an application in the County
Court of McLennan County to have the will admitted to probate. The children of a deceased sister
of the testatrix filed a contest, based upon the ground that the will was not attested by two
competent witnesses, as required by law.
An order was entered in said court admitting the will to probate as to all of its provisions, without
revoking the bequest to Mrs. Beto. An appeal was taken to the District Court where a like order was
entered; hence this appeal.
The contestants contend here that the instrument is void for the lack of the necessary number of
competent attesting witnesses, and if not void, the court below erred in not revoking the bequest to
Mrs. Beto. They cite in support thereof: Articles 8283, 8296 and 8297, Vernon’s Ann.Civ.Stats.; also
the following cases: Nixon v. Armstrong, 38 Tex. 296; Fowler v. Stagner, 55 Tex. 393; Brown v. Pridgen, 56
Tex. 124; Kennedy v. Upshaw, 66 Tex 442, 1 S.W. 308; and Gamble v. Butchee, 87 Tex. 643, 30 S.W. 861.
Article 8283, Vernon’s Ann.Civ.Stats., provides: ‘Every last will and testament except where
otherwise provided by law, shall be in writing and signed by the testator or by some other person by
his direction and in his presence, and shall, if not wholly in the handwriting of the testator, be
attested by two or more credible witnesses.’
Now, the question is: was Mrs. Billie Beto a credible witness at the time she attested said instrument
as a witness. The statute does not define what constitutes credible witnesses, but this question has
been before the appellate courts of this state several times. In the case of Nixon v. Armstrong, 38 Tex.
490

296, 297, which was a proceeding to contest a will and to have set aside an order admitting it to
probate, all three of the attesting witnesses were named as beneficiaries therein. One of said
witnesses relinquished his interest given to him under its provisions and testified, in order to prove
said will. The court held that a credible witness, as used in the statute, is a competent witness, and
none other, upon the theory that a pecuniary interest disqualifies a witness, and said that it has been
almost universally held that a devisee or legatee is incompetent as a witness to attest or prove up a
will under which he receives a bequest. Speaking of Article 5370 of Paschal’s Digest, which is in
effect Article 8296 of Vernon’s Ann.Civ.Stats. and which reads as follows: ‘Should any person be a
subscribing witness to a will, and be also a legatee or devisee therein, if the will cannot be otherwise
established, such bequest shall be void, and such witness shall be allowed and compelled to appear
and give his testimony in like manner as if no such bequest had been made. But, if in such case the
witness would have been entitled to a share of the estate of the testator had there been no will, he
shall be entitled to so much of such share as shall not exceed the value of the bequest to him in the
will,’ the court said: ‘We think the only proper and reasonable construction of said article is that all
bequests made to attesting witnesses shall be absolutely void, unless there are the required number
of witnesses attesting and to prove the will, who have received no bequests.’ and further held that
none of the attesting witnesses were competent witnesses at the time they attested the same and
declared the bequests to all three to be void. The court further said: ‘Again, the statute says that if
the will cannot be otherwise proven, the bequests to the attesting witnesses shall be void; and if
void, then its nullity must relate back to the time when the pretended bequest was made, and not to
the relinquishment by the witness. If that be so, then every bequest to attesting witnesses became
null on their signing the will; for without that effect the will could not have been proven, as it had
no competent attesting witnesses.’
The case of Fowler v. Stagner, 55 Tex. 393, in which the opinion was rendered in 1881, is identical
with the facts of this case. The will was attested by one Laney and J. T. Powers. Powers was a
beneficiary under the terms of said will and named executor therein, and the court, in passing upon
the question, said:
‘The statute of wills declares it in effect essential to the validity of a will, that, if it be not wholly in
the handwriting of the testator, it shall be attested by two or more credible witnesses, above the age
of fourteen years, subscribing their names in his or her presence. A credible witness is a competent
witness’, and cites Redfield on Wills; Lewis v. Aylott(‘s Heirs), 45 Tex. 190; and Nixon v. Armstrong,
supra.
The court further said:
‘One who is interested as taking under the will is incompetent to testify to establish it. And this is
true notwithstanding any general law removing the disability of witnesses on the ground of interest.
The law at the time of the execution of this will, and the law now, provides how, and in what case,
and with what effect, a will which is attested by a witness who is named a beneficiary therein, may be
proved by such witness. Such a provision would be useless were it not that competency and
credibility in the meaning of the statute are the same thing, and that without this provision such
witness could not in any case testify.
‘The tenth section of the statute reads: ‘If any person shall subscribe his name as a witness to a will
in which any bequest is given to him, if the will cannot be otherwise proved, the bequest shall be
void, and such witness shall be allowed and compelled to appear and give testimony on the residue
491

of the will, in like manner as if no such bequest had been made, etc.’
‘This section did not repeal or qualify the first section of the act. A will is still invalid unless attested
by two disinterested witnesses who take nothing under it. Nor is the will void because attested by
one to whom a bequest is made. The policy of the statute is to prevent frauds, imposition or deceit,
by providing that these dispositions of property, usually made in ill health or at the near approach of
death, and under circumstances peculiarly liable to imposition, shall be fairly made in the presence of
at least two wholly disinterested persons; and also it is its policy to uphold the right of a testator to
make such dispositions and prevent their failing because of the incompetency of the witnesses, by
reason of any bequest left them by the will; and this it effects by declaring such bequest void.
‘Now here the will of Mrs. Larremore cannot be established should the attesting witness Powers
take anything under it, because it would lack the necessary legal number of competent witnesses.
The execution of it may indeed by proved by the oath of one witness, the witness Laney, who is
wholly disinterested, but that proof would simply show the will invalid, when it appeared Powers
was both witness and legatee under it, unless we hold that by the very fact of Powers subscribing
this will, there being but two attesting witnesses, the bequest to him in the will was avoided, and that
he was therefore competent. It was not necessary that Powers should be called or compelled to
testify, or that he should execute a release, but it was essential that he should take no interest under
the will, and that is effected by operation of the law.
‘We believe this the fair construction of the statute. The language of the section quoted, ‘If the will
cannot otherwise be proved’ must be understood as meaning if the will cannot otherwise be
established as a valid will; not that proof of its execution by one witness would dispense with proof
of its attestation by two competent witnesses, or that a will is a well-executed one if attested by one
disinterested witness though all the other subscribing witnesses are parties in its maintenance and
beneficiaries under it, who cannot be called to testify with respect to its execution, so long as the one
witness can be produced, but will continue to claim and hold under it.’
The case of Brown v. Pridgen, 56 Tex. 124, also held that the term ‘credible witnesses’ meant
‘competent witnesses’, and cited the case of Fowler v. Stagner, and further said:
‘This court has uniformly held to that construction * * * Even if that construction admitted of
doubt, it has been too long acquiesced in and acted on to be overruled. It has now become a rule of
property, and valuable rights depend upon an adherence to it.’
The proponents rely upon Article 8297, Vernon’s Ann.Civ.Stats., which reads: ‘In the case provided
for in the preceding article, such will may be proved by the evidence of the subscribing witnesses,
corroborated by the testimony of one or more other disinterested and credible persons, to the effect
that the testimony of such subscribing witnesses necessary to sustain the will is substantially true; in
which event the bequest to such subscribing witnesses shall not be void.’
This article was enacted into law in 1875 and the opinion in Fowler v. Stagner was written in 1881 and
in the Brown v. Pridgen case the opinion was written in 1882, some six and seven years after the
enactment of said article, yet the Supreme Court held that in order to sustain a valid will the same
should be attested by at least two competent witnesses, two that received no pecuniary benefit under
its terms, and held that a will attested by only one competent witness together with another who was
rendered incompetent by reason of being a devisee or legatee, the bequest to the latter should be
492

void. In Fowler v. Stagner, supra, the court, some six years after Article 8297 became a law, referring to
the will then under consideration, said:
‘The law at the time of the execution of this will, and the law now, provides how, and in what case,
and with what effect, a will which is attested by a witness who is named a beneficiary therein, may be
proved by such witness. Such a provision would be useless were it not that competency and
credibility in the meaning of the statute are the same thing, and that without this provision such
witness could not in any case testify.’
We can reasonably assume that the court had in mind Article 8297 as well as all the laws relating to
the execution and establishment of wills when such statements were made. See also: Gamble v. Butcheee,
87 Tex. 643, 30 S.W. 861. The legislature, in the enactment of the above article, did not modify,
amend or repeal Article 8283, which requires that a will not wholly in the hand-writing of the
testator shall be attested by two credible witnesses, but only amended Section 10 of the probate laws
then existing, which was in effect the same as Article 8296.
We are of the opinion that this state is committed to the rule that a credible witness to a will must be
a competent witness, that is, one who receives no pecuniary benefits under its terms. It is true Mrs.
Beto was not called upon to testify in the proceedings below. The will was proven solely upon the
testimony of Mrs. Gandy, the only competent attesting witness. This procedure would have been in
compliance with the law had there been another competent attesting witness, and under such
circumstances the bequest to Mrs. Beto would not have been void. A will can be proven by one
competent attesting witness, but it takes two competent attesting witnesses to sustain a valid will.
Mrs. Beto being a subscribing witness to the will and a devisee thereunder, therefore, is not a
competent witness unless she relinquishes or the court revokes her pecuniary interest under its
provisions. The policy of the law is to uphold a will when it can be done. Under the above cited
authorities, this will is not void but to sustain it and prevent it from failing in its entirety for the lack
of the required number of competent attesting witnesses, Mrs. Beto must become a competent
witness, and to make her such a witness it is necessary that she receive no pecuniary benefits under
its terms.
In Brown v. Pridgen, 56 Tex. 124, Fowler v. Stagner, 55 Tex. 393, and Nixon v. Armstrong, 38 Tex. 296, in
which the exact or similar questions were before the court, and which are cited and strongly relied
upon by the contestants, in each instance the case was reversed and remanded to the lower court.
After reconsideration of the case, we have decided to reverse and remand the case in order to
prevent any possible injustice. Therefore, the cause is reversed and remanded.
Problems
1. Maxine executed a will leaving her entire estate to the Church of the Blessed. The applicable
statute required the will to be witnessed by two competent witnesses. The will was witnessed by
Richard, Maxine’s neighbor, and Curtis, Pastor of the Church of the Blessed. Was the will validly
executed? In a jurisdiction that has adopted A.C.A. § 28-25-102, what happens to the devise to
Curtis?

493

2. David executed a will leaving his farm to Robert; $5.00 to Jeremy; and the rest of his estate to
Major. The applicable statute required the will to be witnessed by two competent witnesses. The will
was witnessed by Jeremy and Bruce. When the will was probated, Jeremy disclaimed his interest in
the estate. Was the will validly executed?
3. Cynthia executed a will leaving half of her estate to her son, Garrison, and half to her best friend,
Olivia. The applicable statute required the will to be witnessed by two competent witnesses. The will
was witnessed by Garrison and Tiffany. Was the will validly executed? Will Garrison be permitted to
take under the will?
11.6

Revocation

Because the will does not become effective until the testator’s death, it is a constantly
evolving document. Thus, the testator may change or revoke the will during his or her lifetime. All
or part of a testator’s will may be revoked in one of the following ways: (1) by a subsequent writing
executed with testamentary formalities; (2) by a physical act such as destroying, obliterating, or
burning the will; (3) or by change in family circumstances (divorce or birth of a child). In order for a
change or revocation to be effective, the testator must manifest the intent to change or revoke the
will. For example, T drinks too much one night and accidentally shreds his will. This could be
considered to be a revocation by physical act; however, the revocation would not be effective
because T lacked the necessary testamentary intent.

M.G.L.A. 190B § 2-507 Revocation by writing or by act (Mass.)
(a) A will or any part thereof is revoked:
(1) by executing a subsequent will that revokes the previous will or part expressly or by
inconsistency; or
(2) by performing a revocatory act on the will, if the testator performed the act with the intent and
for the purpose of revoking the will or part or if another individual performed the act in the
testator's conscious presence and by the testator's direction. For purposes of this paragraph,
“revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will
or any part of it.
(b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent
will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to
replace rather than supplement the previous will.
(c) The testator is presumed to have intended a subsequent will to replace rather than supplement a
previous will if the subsequent will makes a complete disposition of the testator's estate. If this
presumption arises and is not rebutted, the previous will is revoked; only the subsequent will is
operative on the testator's death.
(d) The testator is presumed to have intended a subsequent will to supplement rather than replace a
previous will if the subsequent will does not make a complete disposition of the testator's estate. If
this presumption arises and is not rebutted, the subsequent will revokes the previous will only to the

494

extent the subsequent will is inconsistent with the previous will; each will is fully operative on the
testator's death to the extent they are not inconsistent.
11.6.1 By Later Writing
A subsequent writing can explicitly or implicitly revoke a will. An expressed revocation
occurs when the later testamentary writing expressly states that intent. For instance, the later
document states, “I revoke all prior wills.” Courts treat a later writing that makes a complete
disposition of the testator’s estate as presumptively replacing the previous will and revoking it by
inconsistency. If the subsequent writing does not completely dispose of the testator’s estate, courts
do not presume it to revoke the prior will but view it as a codicil. As a result, the property that is not
disposed of by the codicil is distributed based on the terms of the previous will.
Example:
In 2000, Carmen executes a will stating, “I leave my entire estate to my cousin, Paige.” In 2013,
Carmen executes a will stating, “I leave my entire estate to my brother, Simon.”
Explanation:
The 2013 will revokes the 2000 will by inconsistency. Therefore, Simon takes the entire estate.
Example:
In 2000, Carmen executes a will stating, “I leave my entire estate to my cousin, Paige.” In 2013,
Carmen executes a will stating, “I leave my house to my brother, Simon.”
Explanation:
Courts will consider the 2000 will to be a codicil because it only deals with a portion of Carmen’s
estate. Therefore, Simon takes the house and Paige gets the rest of Carmen’s estate.
Problems
1. In 2012, Ellen executes a will stating, “I leave all of my property to James.” In 2013, Ellen
executes a will stating, “I leave my car to Dana and my boat to Maggie.” In 2014, Ellen and Dana
have a disagreement. As a result, Ellen burns the 2013 will with the intent of revoking it. In 2015,
Ellen dies. How will her estate be distributed? In re Griffis’ Estate, 330 So.2d 797 (Fla. 1976).
2. In 2009, Dewey executes a will stating, “I leave my entire estate to Donald and Daisy.” In 2011,
Dewey executes a will stating, “I leave my house to Alice.” In 2013, Dewey shreds the 2009 will with
the intent of revoking it. In 2015, Dewey dies. How will his estate be distributed? In re Schild’s Will,
72 Misc. 2d 225 (N.Y. Sur. 1972).

495

11.6.2 By Physical Act
The Wills Act allows testators to revoke their wills by physical act. In order to have the
revocation recognized, the testator must comply with the statutory requirements. In some cases,
courts will presume revocation with the intent to revoke if the testator destroys the will in a state
that allows revocation of a will by physical act. The court assumes that the testator destroyed the will
if it was last seen in his or her possession and it is not found after he or she dies. The problem with
this presumption of destruction is that the person who usually searches for the will expects to take
under the will. If that expectation does not come to fruition, the person may be motivated to claim
that the will could not be found. This presumption is rebuttable.
11.6.2.1 Attempted Destruction

Thompson v. Royall, 175 S.E. 748 (Va. 1934)
HUDGINS, J., delivered the opinion of the court.
The only question presented by this record, is whether the will of Mrs. M. Lou Bowen Kroll had
been revoked shortly before her death.
The uncontroverted facts are as follows: On the 4th day of September, 1932, Mrs. Kroll signed a
will, typewritten on five sheets of legal cap paper; the signature appeared on the last page duly
attested by three subscribing witnesses. H. P. Brittain, the executor named in the will, was given
possession of the instrument for safe-keeping. A codicil typed on the top third of one sheet of paper
dated September 15, 1932, was signed by the testatrix in the presence of two subscribing witnesses.
Possession of this instrument was given to Judge S. M. B. Coulling, the attorney who prepared both
documents.
On September 19, 1932, at the request of Mrs. Kroll, Judge Coulling, and Mr. Brittain took the will
and the codicil to her home where she told her attorney, in the presence of Mr. Brittain and another,
to destroy both. But instead of destroying the papers, at the suggestion of Judge Coulling, she
decided to retain them as memoranda, to be used as such in the event she decided to execute a new
will. Upon the back of the manuscript cover, which was fastened to the five sheets by metal clasps,
in the handwriting of Judge Coulling, signed by Mrs. Kroll, there is the following notation: ‘This will
null and void and to be only held by H. P. Brittain, instead of being destroyed, as a memorandum
for another will if I desire to make same. This 19 Sept 1932 ‘M. LOU BOWEN KROLL.‘
The same notation was made upon the back of the sheet on which the codicil was written, except
that the name, S. M. B. Coulling, was substituted for H. P. Brittain; this was likewise signed by Mrs.
Kroll.
Mrs. Kroll died October 2, 1932, leaving numerous nephews and nieces, some of whom were not
mentioned in her will, and an estate valued at approximately $200,000. On motion of some of the
beneficiaries, the will and codicil were offered for probate. All the interested parties including the
heirs at law were convened, and on the issue, devisavit vel non, the jury found that the instruments
dated September 4th and 15, 1932, were the last will and testament of Mrs. M. Lou Bowen Kroll.
From an order sustaining the verdict and probating the will this writ of error was allowed.
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For more than one hundred years, the means by which a duly executed will may be revoked, have
been prescribed by statute. These requirements are found in section 5233 of the 1919 Code, the
pertinent parts of which read thus: ‘No will or codicil, or any part thereof, shall be revoked, unless *
* * by a subsequent will or codicil, or by some writing declaring an intention to revoke the same, and
executed in the manner in which a will is required to be executed, or by the testator, or some person
in his presence and by his direction, cutting, tearing, burning, obliterating, canceling, or destroying
the same, or the signature thereto, with the intent to revoke.‘
The notations, dated September 19, 1932, are not wholly in the handwriting of the testatrix, nor are
her signatures thereto attached attested by subscribing witnesses; hence under the statute they are
ineffectual as ‘some writing declaring an intention to revoke.‘ The faces of the two instruments bear
no physical evidence of any cutting, tearing, burning, obliterating, canceling, or destroying. The only
contention made by appellants is, that the notation written in the presence, and with the approval, of
Mrs. Kroll, on the back of the manuscript cover in the one instance, and on the back of the sheet
containing the codicil in the other, constitute ‘canceling‘ within the meaning of the statute.
Both parties concede that to effect revocation of a duly executed will, in any of the methods
prescribed by statute, two things are necessary: (1) The doing of one of the acts specified, (2)
accompanied by the intent to revoke — the animo revocandi. Proof of either, without proof of the
other, is insufficient. Malone v. Hobbs, 1 Rob. (40 Va.) 346, 39 Am. Dec. 263:2 Minor Ins. 925.
The proof established the intention to revoke. The entire controversy is confined to the acts used in
carrying out that purpose. The testatrix adopted the suggestion of her attorney to revoke her will by
written memoranda, admittedly ineffectual as revocations by subsequent writings, but appellants
contend the memoranda, in the handwriting of another, and testatrix’s signatures, are sufficient to
effect revocation by cancellation. To support this contention appellants cite a number of authorities
which hold that the modern definition of cancellation includes, ‘any act which would destroy,
revoke, recall, do away with, overrule, render null and void, the instrument.’
Most of the authorities cited, that approve the above, or a similar meaning of the word, were dealing
with the cancellation of simple contracts, or other instruments that require little or no formality in
execution. However there is one line of cases which apply this extended meaning of ‘canceling’ to
the revocation of wills. The leading case so holding is Warner v. Warner’s Estate, 37 Vt. 356. In this
case proof of the intent and the act were a notation on the same page with, and below the signature
of the testator, reading: ‘This will is hereby cancelled and annulled. In full this the 15th day of March
in the year 1859,‘ and written lengthwise on the back of the fourth page of the foolscap paper, upon
which no part of the written will appeared, were these words, ‘Cancelled and is null and void.
(Signed) I. Warner.’ It was held this was sufficient to revoke the will under a statute similar to the
one here under consideration.
In Evans’ Appeal, 58 Pa.St. 238, the Pennsylvania court approved the reasoning of the Vermont court
in Warner v. Warner’s Estate, supra, but the force of the opinion is weakened when the facts are
considered. It seems that there were lines drawn through two of the three signatures of the testator
appearing in the Evans will, and the paper on which material parts of the will were written was torn
in four places. It therefore appeared on the face of the instrument, when offered for probate, that
there was a sufficient defacement to bring it within the meaning of both obliteration and
cancellation.
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The construction of the statute in Warner v. Warner’s Estate, supra, has been criticized by eminent text
writers on wills, and the courts in the majority of the states in construing similar statutes have
refused to follow the reasoning in that case. (citations omitted).
The above, and other authorities that might be cited, hold that revocation of a will by cancellation
within the meaning of the statute, contemplates marks or lines across the written parts of the
instrument, or a physical defacement, or some mutilation of the writing itself, with the intent to
revoke. If written words are used for the purpose, they must be so placed as to physically affect the
written portion of the will, not merely on blank parts of the paper on which the will is written. If the
writing intended to be the act of cancelling, does not mutilate, or erase, or deface, or otherwise
physically come in contact with any part of written words of the will, it cannot be given any greater
weight than a similar writing on a separate sheet of paper, which identifies the will referred to, just as
definitely, as does the writing on the back. If a will may be revoked by writing on the back, separable
from the will, it may be done by a writing not on the will. This the statute forbids.
The attempted revocation is ineffectual, because testatrix intended to revoke her will by subsequent
writings not executed as required by statute, and because it does not in any wise physically obliterate,
mutilate, deface, or cancel any written parts of the will.
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.
11.6.2.2 Presumption of Destruction

Edmonds v. Edmonds, 772 S.E.2d 898 (Va. 2015)
Opinion by Chief Justice DONALD W. LEMONS.
In this appeal, we consider whether the trial court erred when it ordered a photocopy of a will to be
probated. We must determine whether the trial court applied the correct legal standard in reaching
its decision, and whether the evidence was sufficient to support the trial court’s determination.
I. Facts and Proceedings
James A. Edmonds, Jr. (“Edmonds”) died on April 30, 2013. Edmonds was survived by his wife,
Elizabeth Cashman Edmonds (“Elizabeth”), his daughter from that marriage, Kelly Elizabeth
Edmonds (“Kelly”), and a son from a previous marriage, James Christopher Edmonds
(“Christopher”).
It is undisputed that on November 8, 2002, Edmonds executed a will (“2002 Will”) which left all of
his personal property to his wife, Elizabeth, and the remainder of his property to a revocable living
trust (“Trust”). The 2002 Will stated that in the event Elizabeth pre-deceased Edmonds all of
Edmonds’ personal property would go to his daughter Kelly. The 2002 Will intentionally omitted
Christopher as a beneficiary. The documents creating the Trust were also executed on November 8,
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2002. Elizabeth and Kelly are the beneficiaries of the Trust. The Trust documents state that
Christopher was intentionally omitted as a beneficiary.
At the same time Edmonds executed his 2002 Will and Trust documents, Elizabeth also executed
her will and trust documents. Her estate planning documents were a mirror image of Edmonds’
documents, leaving all of her estate to Edmonds, and if Edmonds predeceased her, leaving
everything to Kelly.
After Edmonds died, his original 2002 Will could not be located. However, photocopies of the 2002
Will and Trust documents were found in a green binder in Edmonds’ filing cabinet in his office.
Thereafter, Elizabeth filed a “Complaint to Establish Copies of the Will and Trust Where Originals
Cannot Be Located,” in the Circuit Court of Arlington County (“trial court”) and named Kelly and
Christopher as defendants. The complaint acknowledged that Kelly and Christopher would both be
heirs at law if Edmonds was deemed to have died intestate, but asked the trial court to establish and
direct probate of the photocopy of the 2002 Will and the Trust.
Christopher filed an answer, counterclaim, and cross-claim. He sought to establish that Edmonds
died intestate, and that Christopher was an heir at law. Christopher asserted that because the 2002
Will was in Edmonds’ possession when he died, and Elizabeth had been unable to locate it, the
presumption that Edmonds had destroyed it with the intent to revoke it applied.
Kelly filed answers to the complaint and the cross-claim. She admitted that she would be an heir at
law if Edmonds died intestate, but she asked the trial court to find that the 2002 Will was valid and
to probate the photocopy. She asserted there was no evidence that Edmonds destroyed the 2002
Will with the intent to revoke it.
A two-day trial was held on March 25–26, 2014. Elizabeth presented numerous witnesses who
described conversations they had with Edmonds regarding his testamentary intentions. Patrick J.
Vaughn, an attorney who prepared wills and trust documents for Edmonds and Elizabeth in 1973,
and again in 1989, testified that in the 1973 will, Edmonds left his estate to Elizabeth, and expressly
excluded any child of his born from a previous marriage. In the 1989 will, Edmonds again left
everything to Elizabeth. In the event Elizabeth predeceased him, he left everything to his daughter,
Kelly.
Marc E. Bettius (“Bettius”) testified that he had been friends with Edmonds and Elizabeth for more
than 30 years. Bettius stated that in the fall of 2012, he had gone by Edmonds’ auto business to have
his car serviced, and he and Edmonds had a conversation. During that conversation, Bettius asked
Edmonds what plans he had made for the future of his business, and Edmonds indicated that
everything was taken care of in his estate and it would all go to Elizabeth. Edmonds also stated that
he made the appropriate decisions to maximize estate tax benefits. Bettius knew Edmonds had a son
from a previous marriage and asked Edmonds if he’d ever thought about having a relationship with
his son. Edmonds responded in the negative and said that, “the boy had never been a part of his life
and never would be a part of his life.”
Paul C. Kincheloe (“Kincheloe”), an attorney who had been friends with Edmonds since the 1970s,
testified that he was not professionally engaged to do any estate planning for Edmonds, but they did
discuss the subject on several occasions. At one point, Edmonds asked Kincheloe to serve as
substitute trustee, and Kincheloe agreed. Edmonds told Kincheloe he was leaving everything to his
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wife and daughter, and nothing to his son.
John A. Bell, Jr. (“Bell”) testified that he had been friends with Edmonds and Elizabeth since the
1980s. The last time he was with Edmonds was during the first week of March 2013, when
Edmonds invited him to Florida for a four-day golf tournament. Bell testified that he brought up the
subject of estate planning because he was deciding what do with his own estate. During that
conversation, Edmonds said, “As soon as I go, everything goes to Liz. And as soon as she goes,
everything goes to Kelly.” When asked if Edmonds ever said anything negative about Christopher,
Bell responded that Edmonds had never mentioned his son. Bell testified that about three or four
years before this March 2013 conversation, he and Edmonds had another discussion about their
estates. During that discussion, Edmonds said he was trying to set up his estate so that Kelly would
receive her inheritance in increments. Bell testified that Edmonds was concerned that Kelly would
spend the money all at once. Edmonds was also concerned that he had paid for Kelly to have a great
education, and he was not sure she was using it wisely.
Raymond Knight, one of Edmonds’ employees in his auto business, testified that approximately six
years before Edmonds died, they had a conversation about the future of the business if anything
happened to Edmonds. Edmonds told him that “Liz would carry on the business.”
Donald Manning (“Manning”) was the attorney who prepared the 2002 Will. Manning testified that
when he met with Edmonds and Elizabeth to prepare their wills in 2002, Edmonds made it clear
that he did not want Christopher to be a beneficiary. Manning testified that after Edmonds and
Elizabeth executed their wills and trust documents, he made photocopies of the originals. Several
weeks later, Edmonds picked up both the originals and the photocopies. Manning testified that the
photocopies were placed in a green binder before Edmonds picked them up. Manning also testified
that Edmonds never completed several of the items related to the estate plan, such as funding a
family trust or retitling stock, but Manning agreed that those items did not affect the 2002 Will.
Meta Jane Mortensen (“Mortensen”), who prepared Edmonds’ taxes each year, testified that she had
a discussion with Edmonds wherein she told him she was concerned about the tax implications of
his estate plan and wanted to see the documents governing it. Edmonds finally brought her his
estate documents in 2011. The documents Edmonds showed her in 2011 were the 2002 Will and
Trust.
Dina Knight, the bookkeeper for Edmonds’ auto business, testified that although Edmonds did not
discuss his estate plan in specific terms with her, he told her that one day the business would belong
to his wife and daughter. Knight also testified that Edmonds kept all of his important papers in the
filing cabinet in his office. After Edmonds died, Knight looked through the cabinet for important
papers Elizabeth would need, and that is where she found life insurance papers, lease agreements,
and the green binder with the copies of the 2002 Will and Trust documents. Knight did not know
the documents in the green binder were photocopies when she found them. Upon learning that
those documents were not originals, Knight assisted Elizabeth in looking through all the cabinets
and drawers in the auto business, but they never found the original 2002 Will.
Elizabeth testified that she and Edmonds were married in 1972. She explained that Edmonds had
three serious surgeries during their marriage, one in 1992, another in 1998, and the last one in 2003.
Prior to each of these surgeries, he always told her that all the important papers she would need,
including his will, were in the top drawer of his filing cabinet in his office. Elizabeth testified that
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when they prepared their wills in 2002, Edmonds was clear that he wanted to exclude Christopher as
a beneficiary. Elizabeth also testified that in late March or early April of 2013, while they were still in
Florida, Edmonds stated that when they got back to Virginia they should make an appointment with
their estate attorney to starting putting into place several of the estate planning items, including
funding the family trust and retitling some of their stock.
Christopher testified that he had never met or spoken to Edmonds, although he did make two
attempts to contact him.
After hearing the evidence and considering the argument of counsel, the trial court stated that “in
my mind it’s a very close ... case.” The trial court held that the execution and content of the 2002
Will was not contested. The trial court also held that the evidence proved that the documents were
traceable to Edmond’s possession but were not found at his death. The trial court stated that it had
to determine whether the evidence was sufficient to overcome the presumption that the testator had
destroyed the will with the intention to revoke it.
After a thorough review of the evidence in the case, the trial court held that the plaintiff had proven
“by clear and convincing evidence” that the 2002 Will was not revoked. The trial court stated that it
was relying on this Court’s opinion in Bowery v. Webber, 181 Va. 34, 23 S.E.2d 766 (1943), which it
found to be controlling. The trial court noted that here, as in Bowery, there was compelling evidence
of the decedent’s deep affection for the proponent of the will, and that the decedent had made a
number of statements to various disinterested parties related to the disposition of his estate. The trial
court further noted that it found those witnesses to be “highly credible.” Finally, the trial court held
that there was no evidence of any credible reason or cause for the decedent to have made any
change in the testamentary disposition of his estate. The trial court ordered that the photocopy of
Edmonds 2002 Will be probated.
The trial court entered a final order on May 9, 2014, and Christopher appealed to this Court. We
granted Christopher’s appeal on the following assignments of error:
1. The trial court erred when it ordered a photocopy of the will to be probated, because it
applied the wrong legal standard in allowing a decedent’s general statements of intent and
affection to overcome the presumption of revocation of the missing original will, thus failing to
follow this Court’s numerous decisions requiring clear and convincing evidence of some other
cause for the original will’s disappearance.
2. The trial court erred when it ordered a photocopy of the will to be probated, because it
allowed less than clear and convincing evidence to overcome the presumption of revocation,
contrary to this Court’s decisions.
II. Analysis
A. Standard of Review
Whether the trial court applied the correct legal standard in this case is a question of law. We review
questions of law de novo. See Lamar Co. v. City of Richmond, 287 Va. 322, 325, 757 S.E.2d 15, 16
(2014).The issue whether Elizabeth, the proponent of the will, proved by clear and convincing
evidence that Edmonds did not revoke his will is a question of sufficiency of the evidence. A
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judgment should be reversed for insufficient evidence only if it is “plainly wrong or without
evidence to support it.” Atrium Unit Owners Ass’n v. King, 266 Va. 288, 293, 585 S.E.2d 545, 548
(2003) (internal quotation marks omitted).
B. Virginia’s Legal Standard for Missing Wills
Over the past century, this Court has decided numerous cases involving missing wills, and the law
controlling this case is well-established. The most recent case this Court decided involving this issue
was Brown v. Hardin, 225 Va. 624, 304 S.E.2d 291 (1983), where we stated:
Where an executed will in the testator’s custody cannot be found after his death
there is a presumption that it was destroyed by the testator animo revocandi. This
presumption, however, is only prima facie and may be rebutted, but the burden is
upon those who seek to establish such an instrument to assign and prove some
other cause for its disappearance, by clear and convincing evidence, leading to
the conclusion that the will was not revoked.
Id. at 626, 304 S.E.2d at 292 (citations omitted).
Neither party in this appeal disagrees that, where an executed will in the testator’s custody cannot be
found after his death, there is a presumption that it was destroyed by the testator with the intent of
revoking it. In this case, the 2002 Will was traced to Edmonds’ custody, but could not be found at
his death. Accordingly, the trial court properly applied the presumption in this case that the 2002
Will was destroyed by Edmonds.
The parties also do not appear to disagree that the presumption of revocation can be overcome by
the proponent of the will upon presentation of clear and convincing evidence, leading to the
conclusion that the will was not revoked by the testator. Instead, the dispute in this case involves
what the proponent of the will must prove to meet her burden of proof, and whether she met her
burden of proof in this particular case.
Christopher argues that to meet her burden of proof, Elizabeth was required to prove “some other
cause” for the disappearance of the will, and that evidence of general intent and affection alone is
not clear and convincing evidence, sufficient to overcome the presumption of revocation.
Christopher contends that the only case that supports Elizabeth’s position, Bowery, is an “outlier”
and should not have been relied on by the trial court.
A review of our decisions over the past century on the issue of missing wills is informative. In 1913,
we provided a synthesis of the operation of the lost will presumption and the evidence sufficient to
rebut it, in deciding the case of Jackson v. Hewlett, 114 Va. 573, 77 S.E. 518 (1913). In Jackson, the
evidence proved that the decedent had made a will in which he devised the bulk of his estate to his
illegitimate daughter, and left only a few minor devises to others, including his legitimate daughter.
Id. at 575, 77 S.E. at 519. The will was kept in an unlocked drawer, but after decedent’s death the
will could not be located. Id. at 576, 77 S.E. at 519. The proponent of the will introduced numerous
declarations by the testator regarding his intentions to leave the bulk of his estate to her, and not to
his other relatives. Id. at 576–77, 77 S.E. at 519.
We explained that these declarations were not introduced for the purpose of proving the will, its due
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execution, or its contents. Rather,
[t]hey were introduced as evidence showing a strong and unvarying adherence by
the testator to his purposes with respect to the disposition of his estate, which
had obtained for years prior to his death, both as to the beneficiaries thereunder
and as to those omitted therefrom; and for the purpose of rebutting the
presumption that this testator deliberately destroyed, with intent to revoke, a will
he had so carefully prepared, and to which he had so firmly adhered.
Id. at 578, 77 S.E. at 520.
We held that, in a case like Jackson, the presumption could only be overcome by this type of
evidence, since “[i]t is impossible for the beneficiaries under the will to say what became of it; they
can only assert that, whatever may have happened to it, the testator did not revoke it.” Id. at 580, 77
S.E. at 521. We concluded that:
It must be generally the case, in such a status, that the best evidence, if not the
only evidence, that can be adduced to rebut the presumption of revocation is
that the testator’s mind for many years contemplated a certain disposition of his
property; that when he disposed of that property by will his mental attitude was
precisely the same that it had been during the previous years, and that after he
made such disposition his mind remained in the same state practically until his
death, supplemented by the consistency of his mental attitude towards his
various relatives.
Id. at 581, 77 S.E. at 521. Our decision in Jackson recognizes that it may very well be impossible for
the proponent of a missing will to explain what happened to the will, and therefore the statements
of the testator regarding his testamentary intentions may be the best evidence to rebut the
presumption of revocation.
The next case we decided involving a missing will was Bowery, handed down in 1943—the decision
that appellant contends is an “outlier,” but which in fact gave another concrete illustration of the
nature of the evidence required to rebut the presumption of revocation for a lost will. In Bowery, the
decedent had prepared a will which left her estate to her step-granddaughter, whom she had raised
as her daughter, but excluded other relatives. 181 Va. at 35, 23 S.E.2d at 766. At the time of the
testator’s death, the will could not be found, and the proponent of the will filed a bill to establish the
will, alleging that the will had become lost or misplaced, but that it had not been revoked. Id. The
proponent of the will put on evidence that the decedent repeatedly stated to her intimate associates
that she desired and intended to leave all of her property to her adopted daughter. Id. at 37, 23
S.E.2d at 767. In contrast, there was no evidence of any such affection or intention toward her other
relatives. Id. There was also no evidence of any incidents occurring which would have induced the
decedent to revoke or change her will. Id. We held that this evidence was sufficient to support the
conclusion that the testator did not destroy her will with the intent to revoke it. Id. at 39, 23 S.E.2d
at 768.
Three years after Bowery, we decided Tate v. Wren, 185 Va. 773, 40 S.E.2d 188 (1946), holding that the
evidence presented in that case was not sufficient to overcome the presumption of revocation. We
explained that, unlike the record before the trial court in Bowery, there was no evidence in Tate of
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declarations by the testator that his 1933 will was still in effect. Id. at 785–86, 40 S.E.2d at 194. To
the contrary, there was evidence that the testator had made numerous statements that he intended to
change his 1933 will, and that he had actually prepared a new holographic will. Id. at 786, 40 S.E.2d
at 194. It is important to note, however, that in distinguishing the facts in Tate from the facts in
Bowery, we never indicated that Bowery was an “outlier” or no longer correct.
Later cases have confirmed the continued application of Jackson and Bowery in lost will cases. For
example, in Sutherland v. Sutherland, 192 Va. 764, 66 S.E.2d 537 (1951), we referenced our decisions in
Bowery and Jackson, and stated that, in our opinion, the facts in those two cases “were clear and
convincing.” Id. at 774, 66 S.E.2d at 543. We determined that the facts in Sutherland did not
“measure up” to the facts present in Bowery and Jackson, and therefore we held that the proponent of
the missing will had failed to meet his burden of proof to overcome the presumption of revocation.
Id. at 774–75, 66 S.E.2d at 543–44. Our opinion in Sutherland makes clear that we viewed Jackson and
Bowery to be correct, and to be examples of factual scenarios where the proponent of the missing will
had met the necessary burden of proof to overcome the presumption of revocation.
Where the will-proponent’s proof fails to clearly and convincingly rebut the presumption of
revocation, the burden is not met and the will cannot be probated. In Harris v. Harris, 216 Va. 716,
222 S.E.2d 543 (1976), for example, the proponents of the missing will argued that the will was not
actually in the decedent’s possession at the time of his death, and for that reason the presumption of
revocation should not apply. Id. at 719, 222 S.E.2d at 545. However, we disagreed and held that the
evidence proved that the will remained in the decedent’s house, and therefore the presumption of
revocation applied. Id. at 719–20, 222 S.E.2d at 545. Further, we determined that the proponents
had not met their burden of overcoming the presumption, because the only evidence presented was
that other relatives were frequently in the house and could have had access to the will. Id. at 720, 222
S.E.2d at 546. We held that this evidence left the competing inferences “equally probable,” and was
not enough to constitute clear and convincing evidence that the will was not revoked by the testator.
Id.
The most recent decision by this Court on the issue of a missing will was the Brown case. In Brown,
there was no dispute that the decedent had made a will in which he left the majority of his estate to a
family friend instead of his sister. There was evidence presented that the decedent had told
numerous witnesses that he intended to leave everything to the friend, and that he was not leaving
anything 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:
The declarations of a testator, after he has made his will, as to its continued
existence, its contents, or its revocation, where the will cannot be found after his
death, [are] recognized under certain circumstances as entitled to great weight.
Id. at 636, 304 S.E.2d at 298 (quoting Shacklett v. Roller, 97 Va. 639, 644, 34 S.E. 492, 494 (1899)).
Evidence was also presented that the sister had access to the decedent’s personal papers within 36
hours of his death, which might have explained the disappearance of the will. Id. The Court stated
that to overcome the presumption that the will was destroyed by the testator with the intention of
revoking it,
the burden was on [the proponent of the will] to prove by clear and convincing
evidence that the will was not destroyed by [the testator] but was destroyed or
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secreted by some other person with intent to prevent its probate or recordation,
or was lost or misplaced; that it was not incumbent upon [the proponent] to prove that the
[will] was destroyed or suppressed by any certain person nor specifically what became of said
will; and that [the proponent] only had to prove by clear and convincing evidence
that [the testator] did not destroy the will with the intention of revoking it.
Id. at 637, 304 S.E.2d at 299 (emphasis added).
It is clear from a review of our extensive case law on this topic that a proponent of a missing will is
not required to specifically prove what became of the missing will. The language cited above from
Brown demonstrates that we rejected the appellant’s interpretation of our cases that a proponent is
required to prove what happened to the will. Instead, the proponent is required to prove, by clear
and convincing evidence, that the testator did not destroy the will with the intention of revoking it.
The evidence presented by a proponent of a missing instrument will take different forms depending
on the facts and context of each individual case. In some cases, the proponent may present evidence
regarding what could have happened to the will; and in other cases, there may be no evidence to
explain why the will is lost or missing. The facts of each case are different, and the evidence in each
case will therefore also be different. What remains the same is that each proponent of a missing will
must prove, by clear and convincing evidence, that the testator did not destroy the will with the
intention of revoking it. That is the standard that we have articulated in all our cases over the past
century, and it remains the law of the Commonwealth today.
It is clear from the transcript of the trial and the final order that in the present case the trial court
applied the proper legal standard. The trial court recognized that, because the will was traced to
Edmonds’ possession but was not located at his death, the presumption of revocation applied. The
trial court then stated that the presumption could be overcome by clear and convincing evidence
that the will was not revoked by the defendant. Accordingly, with respect to assignment of error
one, we hold that the trial court did not err, and that it applied the proper legal standard.
C. Overcoming the Presumption of Revocation
In assignment of error two, Appellant asserts that the trial court erred because it allowed less than
clear and convincing evidence to overcome the presumption of revocation. We have defined clear
and convincing evidence as:
[t]hat measure or degree of proof which will produce in the mind of the trier of
fact a firm belief or conviction as to the allegations sought to be established. It is
intermediate, being more than a mere preponderance, but not to the extent of
such certainty as is required beyond a reasonable doubt as in criminal cases. It
does not mean clear and unequivocal.
Brown, 225 Va. at 637, 304 S.E.2d at 299 (quoting Walker Agcy. & Aetna Cas. Co. v. Lucas, 215 Va.
535, 540-41, 211 S.E.2d 88, 92 (1975)).
The remaining question is whether the proof in this case was sufficient to produce in the mind of
the trier of fact a firm belief or conviction that Edmonds did not destroy the original copy of the
2002 Will with the intention of revoking it. The trial court found that Elizabeth had proven that fact
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by clear and convincing evidence. Elizabeth is entitled to have this Court review the evidence and all
reasonable inferences therefrom in the light most favorable to her, the prevailing party at trial. See
Exxon Mobil Corp. v. Minton, 285 Va. 115, 121, 737 S.E.2d 16, 22 (2013).Viewing the evidence in the
light most favorable to Elizabeth, the evidence is sufficient to support the trial court’s finding that
she had rebutted the presumption that the original 2002 Will was missing because Edmonds had
purposefully destroyed it with the intention of revoking it, by offering clear and convincing evidence
to the contrary.
Edmonds and Elizabeth had been married for more than 40 years and had complementary estate
plans in place to provide for each other and then to pass their estate to their daughter Kelly after
they both died. On numerous occasions, Edmonds stated his intent that his estate be handled in
such a manner, declarations that are both admissible and entitled to great weight. See Brown, 225 Va.
at 636, 304 S.E.2d at 298; Shacklett, 97 Va. at 644, 34 S.E. at 494.
Christopher testified that he had never spoken with or met Edmonds. Edmonds stated to his friend
Bettius that he had no interest in having a relationship with Christopher. Edmonds had at least three
wills, and each time he changed his will, he had a new one prepared. Christopher was never listed as
a beneficiary in any of Edmonds’ wills. During the preparation of his 2002 Will, Edmonds was clear
that he did not want Christopher to be a beneficiary. Because Edmonds did not want Christopher to
be a beneficiary, he would know that he needed to have a will to exclude Christopher from
inheriting part of his estate. Therefore, even if he lost confidence in his daughter, there is no
indication that he would want his property to pass through intestate succession under any
circumstances.
It is important to note in this instance that a neatly bound photocopy of Edmonds’ 2002 Will and
Trust was found in a drawer in the filing cabinet in Edmonds’ office, exactly where Edmonds had
stated he kept his important papers. The photocopy was fully executed. However, the original of the
document could not be found. The fully executed photocopy was found where Edmonds stated he
would keep his important papers. If he had intended to revoke the 2002 Will by destroying the
original, it would have been logical that he would have removed the photocopy from his file of
important papers.
Edmonds never indicated to his wife, or anyone else, that he had destroyed the couple’s 2002 estate
planning documents. He also made a number of statements in the last two years of his life that
reflected his intention that, when he died, his estate would be governed by the 2002 Will and Trust.
In the fall of 2011, he gave a copy of the 2002 Will and Trust to his long-term tax advisor for her
review. In the fall of 2012, he told his close friend, Bettius, that he had no interest in developing a
relationship with Christopher, that he had made appropriate decisions to maximize his estate tax
benefits, and that after he died all the decisions regarding the management of his business would be
in Elizabeth’s hands. This is inconsistent with Edmonds having revoked the will, leaving no estate
plan in place.
In March 2013, Edmonds told his close friend Bell that, “as soon as I go, everything goes to Liz. As
soon as she goes, everything goes to Kelly.” In late March or early April, just weeks before his death,
Edmonds told Elizabeth that they should meet with their attorney when they returned to Arlington
from Florida to begin funding their trust and taking the other steps their attorney had recommended
as part of the 2002 estate plan.
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As in Jackson and Bowery, it is demonstrated on the present record with clear and convincing
evidentiary support that in all of his statements Edmonds confirmed the intention that his wife and
daughter were to be the objects of his bounty, and that he specifically did not intend to leave
anything to his son. There is also no evidence in the record of anything that might have happened to
change Edmonds’ mind in the period prior to his death. Accordingly, we hold that these facts are
sufficient to support the trial court’s finding of clear and convincing evidence that Edmonds did not
destroy the original 2002 Will with the intention of revoking it.
III. Conclusion
For the reasons stated, we will affirm the judgment of the trial court.
Affirmed.

Harrison v. Bird, 621 So.2d 972 (Ala. 1993)
HOUSTON, Justice.
The proponent of a will appeals from a judgment of the Circuit Court of Montgomery County
holding that the estate of Daisy Virginia Speer, deceased, should be administered as an intestate
estate and confirming the letters of administration granted by the probate court to Mae S. Bird.
The following pertinent facts are undisputed:
Daisy Virginia Speer executed a will in November 1989, in which she named Katherine Crapps
Harrison as the main beneficiary of her estate. The original of the will was retained by Ms. Speer’s
attorney and a duplicate original was given to Ms. Harrison. On March 4, 1991, Ms. Speer
telephoned her attorney and advised him that she wanted to revoke her will. Thereafter, Ms. Speer’s
attorney or his secretary, in the presence of each other, tore the will into four pieces. The attorney
then wrote Ms. Speer a letter, informing her that he had “revoked” her will as she had instructed and
that he was enclosing the pieces of the will so that she could verify that he had torn up the original.
In the letter, the attorney specifically stated, “As it now stands, you are without a will.”
Ms. Speer died on September 3, 1991. Upon her death, the postmarked letter from her attorney was
found among her personal effects, but the four pieces of the will were not found. Thereafter, on
September 17, 1991, the Probate Court of Montgomery County granted letters of administration on
the estate of Ms. Speer, to Mae S. Bird, a cousin of Ms. Speer. On October 11, 1991, Ms. Harrison
filed for probate a document purporting to be the last will and testament of Ms. Speer and naming
Ms. Harrison as executrix. On Ms. Bird’s petition, the case was removed to the Circuit Court of
Montgomery County. Thereafter, Ms. Bird filed an “Answer to Petition to Probate Will and Answer
to Petition to Have Administratrix Removed,” contesting the will on the grounds that Ms. Speer had
revoked her will.
Thereafter, Ms. Bird and Ms. Harrison moved for summary judgments, which the circuit court
denied. Upon denying their motions, the circuit court ruled in part (1) that Ms. Speer’s will was not
lawfully revoked when it was destroyed by her attorney at her direction and with her consent, but
not in her presence, see Ala. Code 1975 § 43-8-136(b); (2) that there could be no ratification of the
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destruction of Ms. Speer’s will, which was not accomplished pursuant to the strict requirements of §
43-8-136(b); and (3) that, based on the fact that the pieces of the destroyed will were delivered to
Ms. Speer’s home but were not found after her death, there arose a presumption that Ms. Speer
thereafter revoked the will herself. However, because the trial court found that a genuine issue of
material fact existed as to whether Ms. Harrison had rebutted the presumption that Ms. Speer
intended to revoke her will even though the duplicate was not destroyed, it held that “this issue must
be submitted for trial.”
Subsequently, however, based upon the affidavits submitted in support of the motions for summary
judgment, the oral testimony, and a finding that the presumption in favor of revocation of Ms.
Speer’s will had not been rebutted and therefore that the duplicate original will offered for probate
by Ms. Harrison was not the last will and testament of Daisy Virginia Speer, the circuit court held
that the estate should be administered as an intestate estate and confirmed the letters of
administration issued by the probate court to Ms. Bird.
If the evidence establishes that Ms. Speer had possession of the will before her death, but the will is
not found among her personal effects after her death, a presumption arises that she destroyed the
will. See Barksdale v. Pendergrass, 294 Ala. 526, 319 So.2d 267 (1975). Furthermore, if she destroys
the copy of the will in her possession, a presumption arises that she has revoked her will and all
duplicates, even though a duplicate exists that is not in her possession. See Stiles v. Brown, 380 So.2d
792 (Ala. 1980); see, also, Snider v. Burks, 84 Ala. 53, 4 So. 225 (1887). However, this presumption of
revocation is rebuttable and the burden of rebutting the presumption is on the proponent of the
will. See Barksdale, supra.
Based on the foregoing, we conclude that under the facts of this case there existed a presumption
that Ms. Speer destroyed her will and thus revoked it. Therefore, the burden shifted to Ms. Harrison
to present sufficient evidence to rebut that presumption—to present sufficient evidence to convince
the trier of fact that the absence of the will from Ms. Speer’s personal effects after her death was not
due to Ms. Speer’s destroying and thus revoking the will. See Stiles v. Brown, supra.
From a careful review of the record, we conclude, as did the trial court, that the evidence presented
by Ms. Harrison was not sufficient to rebut the presumption that Ms. Speer destroyed her will with
the intent to revoke it. We, therefore, affirm the trial court’s judgment.
We note Ms. Harrison’s argument that under the particular facts of this case, because Ms. Speer’s
attorney destroyed the will outside of Ms. Speer’s presence, “[t]he fact that Ms. Speer may have had
possession of the pieces of her will and that such pieces were not found upon her death is not
sufficient to invoke the presumption [of revocation] imposed by the trial court.” We find that
argument to be without merit.
AFFIRMED.
Notes, Problems, and Questions
1. Unless there is a statute mandating a contrary result, a will that is (1) lost, (2) destroyed without
the testator’s consent, or (3) destroyed with the testator’s consent but not in compliance with the
revocation statute may be admitted into probate if its contents can be proven. For example, during
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Hurricane Katrina, a large number of wills were probably destroyed as a result of the floods. Those
wills were destroyed without the testators’ consent, so they can be probated if their terms can be
proved from copies or otherwise.
2. The terms of the lost will must be proven. For example, K.S.A. 59-2228 provides “A lost or
destroyed will may be established if its provisions are clearly and distinctly proved. When such will is
established the provisions thereof shall be distinctly stated, certified by the court, and filed and
recorded. Letters shall issue thereon as in the case of other wills.”
3. A few states limit the probate of lost wills. For instance, N.R.S. 136.240(3) states “*** no will may
be proved as a lost or destroyed will unless it is proved to have been in existence at the death of the
person whose will it is claimed to be, or is shown to have been fraudulently destroyed in the lifetime
of that person, nor unless its provisions are clearly and distinctly proved by at least two credible
witnesses.”
4. In 1990, Pauline executed a will stating, “I leave my estate in equal parts to my nieces, Betty, Jean
and Clara.” In 2007, Pauline called her attorney and said, “I need you to tear up my will because I
don’t want my niece to get any of my things. I plan to leave it all to charity.” The attorney torn up
the will in front of his secretary and placed it in Pauline’s file. In 2014, Pauline was killed in a train
accident. Pauline’s nieces submitted the 1990 will for probate. Henry, Pauline’s sole intestate heir
filed an action contesting the probate of the will. What is the likely outcome of the case?
5. In 2000, Georgia executed a will stating, “I leave half of my estate to Dennis and half of my
estate to Wilma.” Georgia died in 2011. At that time, her will was found stuck inside of her
shredder. The will was intact and only had slight tears on the edge of the pages. Dennis and Wilma
submitted Georgia’s will for probate. What is the possible result?
11.6.3 Dependent Relative Revocation and Revival (DRRR)
Courts will honor the testator’s intent to revoke his or her will, but what if that intent is
based on misinformation. According to the DRRR, if the testator decides to revoke her will because
of a mistaken assumption of law or fact, the court will not give the revocation effect if evidence is
introduced showing that the testator would not have revoked the will if her or she had known the
truth. The doctrine is one of presumptive intent, not actual intent. It only applies where there is an
alternative plan disposition that fails or where the mistake is recited in the terms of the revoking
instrument or established by clear and convincing evidence. It is not enough just to revoke the will.
Consider the following examples.
Example:
T revokes her 2000 will because she thinks the jurisdiction will allow her to write a letter to dispose
of her property. The state does not recognize holographic wills, so the revocation is based upon a
mistaken assumption of law. The court will ignore the revocation and probate the 2000 will because
it presumes that T would not want to die intestate. The purpose is to carry out T’s intent.
Example:
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T revokes her 2000 will leaving all of her property to her friend, Bob, because she thinks that Bob is
dead. Bob is alive, so the revocation is based upon a mistaken assumption of fact. The court will
ignore the revocation and probate the 2000 will.
11.6.3.1 DRRR

Kroll v. Nehmer, 705 A.2d 716 (Md. 1998).
WILNER, Judge.
Margaret Binco died on December 19, 1994, leaving four wills-one dated July 24, 1980, a second
dated April 12, 1985, a third dated June 28, 1990, and a fourth dated October 27, 1994. We are
concerned here only with the second will-the 1985 will.
The 1980 will, it appears, had been altered, and, although it was at one time offered for probate, no
one now contends that it has any validity. When Ms. Binco drew the 1990 will, she wrote on the
back of her 1985 will “VOID-NEW WILL DRAWN UP 6-28-90.” The 1990 and 1994 wills, all
parties agree, are ineffective because they lack the signatures of attesting witnesses, as required by
Maryland Code, Estates and Trusts Article, § 4-102. Accordingly, if the 1985 will was effectively
revoked by Ms. Binco, she would have died intestate, in which event appellant, her brother and
closest surviving relative, who was not named as a beneficiary under the 1985, 1990, or 1994 wills,
would inherit. The dispute now before us is therefore between appellant, urging that the 1985 will
had been revoked, and appellee, the person who offered that will for probate and who was
appointed as personal representative to administer the estate under the will, who contends that the
1985 will had not been effectively revoked.
Over appellant’s objection, the Orphans’ Court for Baltimore County, apparently applying the
doctrine of dependent relative revocation, admitted the 1985 will to probate, notwithstanding its
apparent revocation by Ms. Binco. The Circuit Court for Baltimore County affirmed that decision.
We granted certiorari on our own initiative before any proceedings in the Court of Special Appeals to
consider whether the lower courts erred in applying the doctrine and finding the 1985 will to be
valid. We believe that they did err and shall therefore reverse.
Dependent Relative Revocation
Section 4-105 of the Estates and Trusts Article permits a will to be revoked by “cancelling ... the
same, by the testator himself....” It is clear, and neither party now suggests otherwise, that, by writing
on the 1985 will “VOID-NEW WILL DRAWN UP 6-28-90” and retaining the will, so marked,
among her papers, Ms. Binco intended to revoke that will and that, unless saved by the doctrine of
dependent relative revocation, that will was effectively revoked.
As we indicated in Arrowsmith v. Mercantile-Safe Deposit, 313 Md. 334, 343, 545 A.2d 674, 679 (1988), ,
no reported Maryland appellate decision has ever applied that doctrine. The doctrine, in its most
general form, is described in 2 WILLIAM J. BOWE & DOUGLAS H. PARKER, PAGE ON THE
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LAW OF WILLS § 21.57 at 446 (rev. ed.1960):
“In general the doctrine of dependent relative revocation applies to invalidate the
revocation of a will where it is shown that the revocation was conditioned on the
occurrence of certain facts which never came to pass or upon the existence or
nonexistence of circumstances which were either absent or present contrary to
the condition.”
As most commentators, including the revisors of Page’s opus, point out, in applying the doctrine,
courts often speak in terms of a conditional revocation, regarding the revocation as conditioned on the
existence of a set of facts or circumstances that the testator assumes to exist, when, in reality, the
revocation is itself unconditional but is rather based on a mistaken frame of mind-a mistake of either
fact or law. They give as an example of a mistake of fact the circumstance in which a testator
physically destroys his will believing that the document he is destroying is not his will but some
other instrument. In that circumstance, they suggest, the necessary intention to revoke the will is
clearly lacking, and a “mistake of this sort prevents revocation, although all the other elements are
present.” Id. at 448. There is no need in that situation to construe the revocation as a “conditional”
one-the presumed condition being that the document being destroyed is not the testator’s will-for a
mistake of that kind suffices on its own to justify granting relief.
The more troublesome branch of the doctrine is where the mistake is not in the act of revocation
itself but in the inducement for the act, arising from facts or circumstances extrinsic to the
instrument revoked. This often takes the form of a mistake of law or of legal consequences. The
most common instance of this form is “where a testator revokes a later will in the belief that he can
thus put a prior will into effect, or where he revokes a prior instrument thinking that a later
instrument has been executed in due form and that no other facts exist which will prevent such
instrument from operating as a later will.” Id. at 448. See also Joseph Warren, Dependent Relative
Revocation, 33 Harv. L. Rev. 337, 342 (1920).
It is possible, of course, for a testator to make clear that his revocation of an existing will is
conditioned on the legal validity or effectiveness of some other instrument, but, as the Page authors
note, in most instances the testator has simply assumed that state of affairs and has articulated no
such condition. In such cases, the revocation is really less of a conditional one than one based on a
mistake of law which, if regarded in that manner, would not normally suffice to avoid an otherwise
deliberate act. Some courts, in an effort to effectuate what they presume would have been the
testator’s intent had he known the true circumstances, have thus constructed the fiction of a
conditional, or dependent relative, revocation, as a more plausible theory upon which to provide
relief. See George E. Palmer, Dependent Relative Revocation and its Relation to Relief for Mistake, 69 Mich.
L.Rev. 989-90 (1970-71):
“The one part of the law of wills in which courts often do give relief for mistake
is in connection with revocation by holding that an apparent revocation was
ineffective because of mistake in underlying assumptions. Rarely, if ever,
however, does a modern court rest its decision squarely on its power to relieve
for mistake. Instead, the testator’s intent to revoke is regarded as conditioned
upon the truth of the matter in question; since the condition has not been met
the conclusion is reached that there was no revocation for lack of the requisite
intent. This is the doctrine of dependent relative revocation. It rests upon an
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analysis that, with few exceptions, is found nowhere else in the law relating to mistake in
underlying assumptions.”
(Emphasis added.)
This theory, almost peculiar to revocations of wills, gained initial currency in English decisions.
Joseph Warren, Dependent Relative Revocation, supra, 33 Harv. L. Rev. at 337. As Page, and increasingly
many courts, have warned, however, the testator’s true intentions in a mistake of law-implied
condition context are often ambiguous-harder to discern with real clarity and authority-and, before
applying legal fictions based on undocumented presumptions to accept as valid a will that has
otherwise been facially revoked in accordance with all legal prerequisites, courts need to examine the
circumstances with great care and caution.2 We shall turn now to those circumstances, as they appear
in this case.

The Four Wills and the Proceedings Below
When Ms. Binco died, her only heir was her brother, Henry J. Kroll, the appellant. Mr. Kroll was not
mentioned as a beneficiary in any of the three later wills; the 1980 will is not in the record before us,
but, from a comment made during the hearing in the circuit court, it appears that he was left a car in
that will. The 1985 will was drawn by an attorney and made a complete disposition of Ms. Binco’s
estate. She left her jewelry, furs, and furniture to five individuals-Charmaine Kilmartin, Esther
Strebech, Betty Ball, Joan Romanowski, and Phyllis Butler; a credit union account was left to a sixth
individual; AT & T stock was bequeathed equally to two charities-First Church of God and
Lutheran Social Services of Maryland; and Standard Oil Company stock was left to Spay and Neuter
All Pets, Inc. St. John’s Lutheran Church, the First Church of God, and Spay and Neuter All Pets,
Inc. shared equally in the residuary bequest. Ms. Romanowski was named as personal
representative.
The 1990 will, which was handwritten and contained a number of margin notes and interlineations,
had no residuary clause, so it is not clear whether that will made a complete disposition of Ms.
Binco’s estate. None of the individuals mentioned in the 1985 will were included in the 1990 will.
Some of the beneficiaries are referred to only by their first names-Ms. Binco’s house and certain
stock, for example, is left to “Richard and Sharyn”; clothing is left to “Chris”; mink stoles are left to
“Bea” and “Pat.” Other bequests suggest that “Richard” is Richard Kroll, appellant’s son and Ms.
Binco’s nephew. In a Notice of Hearing sent later by the Register of Wills, “Sharyn” is identified as
Sharyn L. Trent, but it is not clear from the record what, if any, relationship she has with Richard
Kroll or with Ms. Binco. Pat Sonneborn, Bea Reynolds-possibly the “Pat” and “Bea” named as
legatees-along with a “Hank,” who might be appellant, are listed as executors. The First Church of
God is mentioned in the will, but it is not at all clear what, if any, bequest is made to that charity.
One or more of the interlineations appear to have been made after the initial will was written. A
provision stating “Pay Norman Lauenstein-Atty,” for example, is crossed out, and, in the margin is
written “Paid Him.”
The 1994 will is also a handwritten document, containing no residuary clause. At the top, Ms. Binco
declares it as her Last Will and Testament and states that she “would like to designate the following
items to those mentioned below.” Her car, which in the 1990 will went to Richard Kroll, was given
to Pat Sonneborn. Her house, which was formerly to go to Sharyn and Richard, was left to Beate
Reynolds. With the exception of a bedroom set and table that were left to Pat Sonneborn, the
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furniture in the house was left to Ms. Reynolds as well. A credit union account was left to Ms.
Sonneborn and a Rosedale Federal account was left to Ms. Reynolds. Certain stock was bequeathed
50% to Richard Kroll, 25% to Ms. Sonneborn, and 25% to Ms. Reynolds. One thousand dollars of
insurance was left to the First Church of God, and another $1,000 was left to Friends of Animals.
Ms. Sonneborn and Richard Kroll were designated as executors.
Neither the 1990 will nor the 1994 will make any reference to any earlier will, and, as noted, neither
contains the signatures of any attesting witnesses, although the 1990 will has a place designated for
witnesses.
Unfortunately, the record of proceedings in the orphans’ court transmitted to this Court does not
constitute the complete file and is somewhat difficult to follow, although we can piece together
essentially what occurred from what we have and from what the parties assert in their briefs. At
some point after Ms. Binco’s death, Richard Kroll presented the 1990 will for judicial probate.
Subsequently, appellee presented the 1980 will for judicial probate. At a hearing held on March 14,
1995, appellant produced the 1985 will which, over his objection, was admitted to probate. Appellee,
identified as the Pastor of St. Johns’s Lutheran Church, was appointed as personal representative.
Appellant then filed a caveat to the will contending, among other things, that Ms. Binco did not
have sufficient mental capacity to make that will, that the contents of the will had not been read or
explained to her, that the will was procured by fraud and undue influence, and that it had, in any
event, been subsequently revoked. In an amended petition and caveat, he asked that those issues be
tried in the circuit court. On August 9, 1995, the orphans’ court dismissed appellant’s amended
petition and caveat, without assigning any reasons. In that same order, the court formally rejected
the 1990 will on the ground that “it does not satisfy the statutory requirement of a valid will and is
not in good form.”
Appellant noted an appeal to the circuit court but in that court effectively abandoned any complaint
with respect to Ms. Binco’s testamentary capacity or to any fraud or undue influence. The sole
question presented to the circuit court was whether the orphans’ court erred in applying the doctrine
of dependent relative revocation and admitting the 1985 will to probate, notwithstanding its
apparent revocation. After a brief evidentiary hearing, the court entered an order affirming the
admission of the 1985 will to probate. The basis of its ruling was that “the revocation of the April
12, 1985 Will was so related to the making of the June 28, 1990 Will as to be dependent on it.
Therefore, since the June 28, 1990 Will was invalid, the April 12, 1985 Will, whose contents can be
ascertained, should be given effect.”
Application of Dependent Relative Revocation
At issue here is the branch of the dependent relative revocation doctrine that, in effect, disregards
conduct otherwise qualifying as a revocation of a will when that conduct, in the court’s view, was
based on an assumption by the testator that the will being revoked would be immediately replaced
by a valid new will. It is the “mistake of law” branch of the doctrine. Two overlapping and confluent
assumptions underlie the theory. One was expressed in a 1929 Annotation, A.G.S., Effect of Testator’s
Attempted Physical Alteration of Will After Execution, 62 A.L.R. 1367, 1401 (1929):
“It is based upon the presumption that the testator performed the act of
revocation with a view and for the purpose of making some other disposition of
his property in place of that which was canceled, and that there is, therefore, no
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reason to suppose that he would have made the change if he had been aware that
it would have been wholly futile, but that his wishes with regard to his property,
as expressed in his original will, would have remained unchanged, in the absence
of any known and sufficient reason for changing them.”
See also the 1952 update of that Annotation, L.S. Tellier, Effect of Testator’s Attempted Physical Alteration
of Will After Execution, 24 A.L.R.2d 514, 554 (1952).
A second, or perhaps simply a different articulation of the same, theory offered in support of the
doctrine comes into play when, as is often the case, the effect of not disregarding the revocation is
for the decedent’s estate, or some part of it, to pass intestate. See In re Macomber’s Wills, 274 A.D. 724,
87 N.Y.S.2d 308, 313 (1949): “The rule seeks to avoid intestacy where a will has once been duly
executed and the acts of the testator in relation to its revocation seem conditional or equivocal.” See
also Goriczynski v. Poston, 248 Va. 271, 448 S.E.2d 423, 425 (1994). The law disfavors intestacies and
requires that, whenever reasonably possible, wills be construed to avoid that result. Crawford v.
Crawford, 266 Md. 711, 719, 296 A.2d 388, 392 (1972). Courts have made it clear, however, that the
law’s preference for a testate disposition is always subordinate to the intention of the testator,
whether ascertained or presumed. See Charleston Library Soc. v. Citizens & Southern Nat. B., 200 S.C. 96,
20 S.E.2d 623, 632 (1942).
Although, as noted, this Court has never applied the doctrine, we have discussed aspects of it in
three cases. In Semmes v. Semmes, 7 H. & J. 388 (Ms. 1826), the testator had a will leaving his entire
estate to his wife, in trust for herself and his infant son until the child reached 21, at which point
one-half of the personal property was to go to her absolutely. When his wife predeceased him, the
testator used a pen to obliterate his signature and those of the attesting witnesses and to write on the
bottom of the will, “In consequence of the death of my wife, it is become necessary to make another
will.” Id. at 389. Unfortunately, he died before making another will. The orphans’ court refused to
probate the existing will, and this Court affirmed that judgment. Our predecessors discussed the
doctrine of dependent relative revocation as it had been applied in some English cases, notably
Onions v. Tyrer, 1 P. Williams, 343 (1717), characterizing the doctrine as based on a mistake principle:
“The cancelling of a will is said to be an equivocal act, and not to effect a
revocation, unless it is done animo revocandi. And where it is a dependent relative
act, done with reference to another, which is meant and supposed to be good
and effectual, it may be a revocation or not, as to that to which it relates is
efficacious or not. As where a man having duly executed one will, afterwards
causes another to be prepared, and supposing the second to be duly executed,
under that impression alone cancels the first. In such case it has been held, that
on the second turning out not to have been duly executed, the cancelling the
first, being done by mistake and misapprehension, would not operate as a
revocation.”
7 H. & J. at 390-91.
Having so characterized the doctrine, the Court made clear that the doctrine would never apply
“where a man has deliberately and intentionally cancelled his will, as in this case, in the entire
absence of all accident or mistake, notwithstanding he may, at the time, have intended to make
another will.” Id. at 391. We accepted, from the evidence, that the testator did not intend to die
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intestate but held that “however that may be, we cannot make a will for him.” Id. On its facts,
Semmes was similar to the situation in In re Emernecker’s Estate, supra 218 Pa. 369, 67 A. 701, where the
revocation also was not actually accompanied by the preparation of a new, albeit ineffective will.
Our second brush with the doctrine was in Safe Dep. & Trust Co. v. Thom, 117 Md. 154, 83 A. 45
(1912), which presented somewhat the same situation as Semmes, although with different facts. The
testatrix, who had five children, had signed a valid will in March, 1907. Item I of that will left
$10,000 in cash to four of the children; Item II left $10,000 in trust for the fifth child, who
apparently was mentally disabled. After providing for some additional small bequests, the testatrix
left the residue of her estate in trust, with one-fifth of the income to be paid quarterly to each of the
five children during their lives (the disabled son’s share to be paid to his trustee), and a one-fifth
share of the corpus to be paid to the children of any deceased child. In April, 1910, the testatrix
informed her attorney that she wanted to change her will to leave the one-fifth shares to the four
competent children outright and not in trust and to make a number of other minor bequests. She
said that she would prepare and send to the lawyer a list of those bequests. In June, 1910, she
informed him that she had rubbed out the first provision in her will, leaving the competent children
$10,000 each, since they would be getting their full one-fifth share absolutely. The lawyer stated that
he told the testatrix not to attempt to change the will in that manner.
The testatrix died without ever making a new will or sending the lawyer the list of new bequests.
Among her papers was the 1907 will on which the names of the four children in Item I had been
rubbed but the letters then relined or retraced in pencil. Accompanying the will, in a sealed envelope,
was a letter to the lawyer containing the list of bequests. With the agreement of all parties, the
trustee named in the will offered the will for probate, following which two of the competent
children petitioned the orphans’ court to declare the will cancelled and revoked by reason of the
erasure. The court, over objection, granted the petition and denied probate. We reversed.
Although, as in Semmes, we discussed the doctrine of dependent relative revocation, that was not the
basis for our decision. Rather, we concluded from the evidence that there was no revocation of the
will in the first instance. The act that might be regarded as a revocation-the attempt to obliterate a
provision-was incomplete, “not in the sense that the clause was not entirely rubbed out or
obliterated, but in the sense that that which was begun was not finished and was abandoned.” Id. at
163, 83 A. 45. Before completing any obliteration, we noted, the testatrix changed her mind and
retraced the letters rubbed, thereby indicating an intent not to revoke the instrument.
Our most recent consideration of the doctrine came in Arrowsmith v. Mercantile-Safe Deposit, supra, 313
Md. 334, 545 A.2d 674. The testator there left three relevant wills, drawn, respectively in 1966, 1976,
and 1982, the earlier wills each being expressly revoked by a provision in the next succeeding will.
All three wills purported to exercise a power of appointment given to the testator through a 1953
deed of trust from his mother. When the testator died in 1983, a question was raised whether the
appointment in the 1982 will violated the rule against perpetuities. Indeed, the circuit court held that
there was such a violation, a conclusion that we affirmed. The power as exercised in the 1966 will
did not present a perpetuities problem, and, in an effort to save the testamentary disposition and not
have the property distributed under the 1953 deed of trust in default of an appointment, the parties
who would be benefitted by that approach asked the court to sustain the 1966 provision under a
theory of dependent relative revocation. The theory seemed to be that, had the testator been aware
that his exercise of the power in the 1976 and 1982 wills would be ineffective, he would not have
revoked the 1966 provision.
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As was the case in Semmes and Safe Dep. & Trust Co., it was not necessary for us in Arrowsmith to
determine whether we would accept the doctrine in any of its manifestations, for even if accepted
into Maryland law, it could not be applied as urged. At 345, 545 A.2d 674, we noted that “[p]lucking
the perpetuities saving clause from the 1966 will and inserting it in the 1982 will is inconsistent with
the theoretical justification for the doctrine.” Harking back to what the Court said in Semmes, Judge
Rodowsky pointed out that “this Court is neither empowered to write a will for [the testator] nor
structure a will that differs from any will which [the testator] ever executed.” Id. at 350, 545 A.2d
674.
This case presents for the first time a situation in which the doctrine might be applied and in which
other courts have applied it. It is not a situation, however, in which we believe it appropriate to
apply the doctrine.
It is important to keep in mind that, in the context now before us, the doctrine rests on a fiction that
is, in turn, supported only by an assumption as to what Ms. Binco would have done had she known
that her 1990 will was invalid. As Professor Warren observed in his law review article, “[t]he inquiry
should always be: What would the testator have desired had he been informed of the true situation?”
Joseph Warren, Dependent Relative Revocation, supra, 33 Harv. L.Rev. at 345. The most rational and
obvious answer to that question, of course, is that the testator would have desired to make the new
instrument effective, and, if presumed intent were to control, the court would simply overlook the
statutory deficiency and probate the new will, rather than overlook the legal effect of an otherwise
deliberate revocation and probate the old one. That is an option the law does not permit, however.
We thus must look for secondary, fictional intentions never actually possessed by Ms. Binco. The
real question is what Ms. Binco would have wanted to do if she had been told that she was unable to
make a new will: would she have preferred her estate to pass under the existing (1985) will to
persons she had decided to remove as beneficiaries, or would she have preferred that her estate pass
intestate to her brother?
In attempting to arrive at a reasonable answer to that kind of question, courts have considered all of
the relevant circumstances surrounding the revocation-the manner in which the existing will was
revoked, whether a new will was actually made and, if so, how contemporaneous the revocation and
the making of the new will were, parol evidence regarding the testator’s intentions, and the
differences and similarities between the old and new wills. The courts recognize that the question is
always one of presumed intent. In many cases, because the other evidence is either inconclusive or
nonexistent, the principal focus is on the differences and similarities between the two instruments.
In that regard, the courts have generally refused to apply the doctrine unless the two instruments
reflect a common dispositive scheme. (citations omitted).
Conversely, courts that have applied the doctrine have looked to the similarity of the new and old
dispositive schemes as a basis for concluding that the testator indeed intended the revocation to be
conditional and that he would have preferred to have his estate pass under the old will rather than
through an intestacy. (citations omitted).
In the case before us, Ms. Binco indicated a clear intent to revoke her 1985 will by writing VOID on
the back of it. Unlike the situation in Safe Dep. & Trust Co., supra, 117 Md. 154, 83 A. 45, there is
nothing ambiguous about her intent to revoke that will. Also unlike that case and Semmes, however,
she did contemporaneously handwrite a new will, thereby indicating with some clarity that her act of
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revocation was based on her mistaken belief that the new will was valid and would replace the old
one. The confluent inference, that she intended to revoke the 1985 will based on her belief that it
would be superseded by the 1990 will, does not alone justify application of the doctrine of
dependent relative revocation. We must still search for that fictional presumed intent of what she
would have done had she been informed that she could not make a new will. There was some
evidence that Ms. Binco did not have a good relationship with her brother and would not have
desired that he take any part of her estate. That evidence was contradicted, however, by testimony
that appellant and his sister did have a cordial relationship.
We turn, then, to a comparison of the 1985 and 1990 wills and, as noted, we find two very different
dispositive schemes. Apart from the fact that the 1990 will did not contain a residuary clause and
may not have effected an entirely testate disposition, the fact is that, with the possible exception of
the First Church of God, whose status under the 1990 will is, at best, unclear, none of the
beneficiaries under the 1985 will were named in the 1990 will. The 1990 will replaced them all,
indicating that Ms. Binco did not wish any of them (again with the possible exception of the First
Church of God) to be benefitted. The effect of applying the doctrine and disregarding her
revocation, however, is precisely to do what she clearly did not want done-to leave her estate to
people she had intended to disinherit. We cannot fairly presume such an intent on her part; nor
should the lower courts have done so.
We need not decide in this case whether the doctrine of dependent relative revocation, as articulated
above, is part of Maryland law and, if it is, the circumstances under which it may properly be
applied. It cannot be applied under the circumstances of this case.
Judgment Reversed; Case Remanded to Circuit Court For Baltimore County With Instructions to
Reverse Order of Orphans’ Court Admitting 1985 Will to Probate; Appellee to Pay the Costs.
Notes, Problems, and Questions
1. If a testator cancels or destroys a will with the present intention of making a new one
immediately and as a substitute and the new will is not made or, if made, fails of effect for any
reason, it will be presumed that the testator preferred the old will to intestacy, and the old one will
be admitted to probate in the absence of evidence overcoming the presumption. La Croix v. Seneca,
99 A.2d 115 (1953).
2. In 2008, Frannie executed a will stating, “I leave my entire estate to Theresa and Donald.” In
2009, Donald told Frannie that Theresa had been killed in a car accident. In 2010, Frannie revoked
her will because she wanted to include a devise to her grandson, Willis. The new will stated, “I leave
my entire estate to Willis and Donald.” The will was witnessed by Willis and Beth. The jurisdiction
requires the will to be witnessed by two competent witnesses. In a jurisdiction that recognizes
DRRR, how will Frannie’s estate be distributed?
11.6.3.2 Revival
In most states the rule of revival is now statutory in nature. Consider the following example.
T executed a will in 2005. T executed a will in 2006. The 2006 will specifically revoked the 2005 will.
In 2009, T revoked the 2006 will. The issue is whether or not the 2005 will is revived. If not, T
would have died intestate. The answer to the question depends on the approach taken in the
jurisdiction. In the majority of jurisdictions, a will is revived if the testator so intends. The testator’s
intent may be shown from the circumstances surrounding revocation of the second will or from the
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testator’s contemporaneous or subsequent oral declarations that the original will is to be probated. A
minority of state statutes mandate that a revoked will cannot be revived unless it is re-executed with
testamentary formalities or republished by being referred to in a later duly executed testamentary
writing. See Stetson v. Stetson, 61 L.R.A. 258 (1903)(common law rule of revival).

N.C.G.S.A. § 31-5.8.Revival of revoked will
No will or any part thereof that has been in any manner revoked can, ****be revived otherwise than
by a reexecution thereof, or by the execution of another will in which the revoked will or part
thereof is incorporated by reference.

VA Code Ann. § 64.2-411. Revival of wills after revocation
Any will or codicil, or any part thereof that has been revoked pursuant to *** shall not be revived
unless such will or codicil is reexecuted in the manner required by law. Such revival operates only to
the extent that the testator’s intent to revive the will or codicil is shown.

20 Pa.C.S.A. § 2506. Revival of revoked or invalid will
If, after the making of any will, the testator shall execute a later will which expressly or by necessary
implication revokes the earlier will, the revocation of the later will shall not revive the earlier will,
unless the revocation is in writing and declares the intention of the testator to revive the earlier will,
or unless, after such revocation, the earlier will shall be reexecuted. Oral republication of itself shall
be ineffective to revive a will.

MCA 72-2-529. Revival of revoked will (Montana)
(1) If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory
act***, the previous will remains revoked unless it is revived. The previous will is revived if it is
evident from the circumstances of the revocation of the subsequent will or from the testator's
contemporary or subsequent declarations that the testator intended the previous will to take effect as
executed.
Problems
(Answer the following questions relying on the above statutes)
1. In 2000, Janet executed a will stating, “I leave my house to Barry and the rest of my estate to
Polly.” In 2002, Janet burned her 2000 will. In 2004, Janet executed a will stating, “I leave my entire
estate to Barry.” In 2005, Janet told her lawyer, “I have had a change of heart and I want to make
sure that Polly gets something. I don’t want my son, Patrick to get anything.” In 2006, Janet burned
her 2004 will. At that time, she told her neighbor, “I have fixed it where Polly will be taken care of.”
In 2011, Janet died survived by Patrick, her sole intestate heir. How will Janet’s estate be distributed?

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2. In 2001, Madison executed a will stating, “I leave my estate to Connie, Mitchell and Allison.” In
2003, Madison executed a will that expressly revoked her 2001 will. The 2003 will stated, “I leave my
estate to Allison and Thelma. In 2013, Madison wrote a letter to her attorney stating, “I want to
revoke the will I wrote in 2003. I like the terms of my 2001 will better. When I die, please let the
2001 will stand. Madison died in 2015. Which will should control the distribution of her property?
3. In 2007, Matthew executed a will stating, “I leave my estate to the Local University.” In 2008,
Local University merged with City University to form City-Local University. Matthew was upset
about the merger. In 2009, Matthew executed a will stating, “I revoked all prior wills. I leave my
entire estate to Local Public Library.” In 2010, City-Local University gave Matthew an honorary
degree. On May 17, 2011, Matthew executed a will stating, “I revoke all prior wills. I want my estate
to be distributed in the manner specified in the May 10, 2011 letter that I wrote to my sister,
Shirley.” The May 10, 2011 letter contained the following sentence: “I made a mistake when I went
back on my word to give everything to Local University. Even though, I still don’t like the merger, I
want to go back to my 2007 will, so I can keep my promises.” Which will should control the
disposition of Matthew’s estate?
11.6.4 Revocation by Changed Circumstances
Events that happen in the life of a testator may impact his or her will. Thus, a testator’s will
may be revoked by operation of law due to changes in his or her family circumstances. In the
majority of jurisdictions, statutes provide that a divorce revokes any provision in the decedent’s will
for the divorced spouse. If the testator executes a will and later marries, statutes in most states gives
the new spouse what he or she would receive under the intestacy system. However, the new spouse
does not take an intestate share if the will indicates that the testator intentionally omitted the new
spouse or the spouse is provided for in the will or by a will substitute with the intent that the
transfer be in lieu of a testamentary provision. In a few states, a premarital will is revoked entirely
upon marriage. Almost all of the states have pretermitted child statutes that give a child born after
the execution of the will who is not mentioned in the will a share of the estate.
11.6.4.1 Spouses

11.6.4.1.1 Divorce
Davis v. Aringe, 731 S.W.2d 210 (Ark. 1987)
GLAZE, Justice.
This case is a will contest and involves whether the will of the decedent, Carlton Taylor, was revoked
by operation of law, pursuant to Ark.Stat.Ann. § 60–407 (Supp.1985). The chancellor admitted the
will to probate, holding § 60–407 was inapplicable to the situation posed here, and the will provision
favoring Ima M. Darby, as residual legatee and devisee, was valid.
The parties have no dispute as to the facts. Taylor had executed a will nominating Darby (now
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Aringe) as executrix and leaving his entire estate to her, with the exception of a one-dollar bequest to
his brother. Thirteen months later, Taylor married Darby, but after two years of marriage, the parties
were divorced. Taylor died nineteen months after he obtained the divorce, without having changed
his will. Darby petitioned to probate Taylor’s will, and Shelton Davis, Taylor’s cousin and sole heir,
contested the will, claiming it had been revoked under § 60–407 because Taylor had married and
divorced Darby since the will had been executed. The chancellor upheld the Taylor will, reasoning
that Taylor had named Darby in his will when they were friends, not spouses, and that Taylor had
never changed it, even though a significant amount of time had passed (nineteen months) between
the parties’ divorce and Taylor’s death.
Section 60–407 provides:
If after making a will the testator is divorced or the marriage of the testator is
annulled, all provisions in the will in favor of the testator’s spouse are thereby
revoked. With these exceptions, no will or any part thereof shall be revoked by
any change in the circumstances, condition or marital status of the testator;
subject, however, to the provisions of § 60–501.
In determining whether § 60–407 applies to the Taylor will, we believe a brief recount and
understanding of the history relevant to the doctrine of implied revocation is important. At common
law, a woman’s will was revoked by her subsequent marriage, but a man’s will was not, at least,
unless there was both a marriage and birth of issue. Besides having been altered by the Wills Act,
1837, these two rules have been treated differently in American jurisdictions. T. Atkinson, Law of
Wills § 85 (2d ed. 1953); see also 2 W. Bowe & D. Parker, Page on Wills §§ 21.89—21.91 (3rd ed. 1960).
Professor Atkinson, in his treatise on wills, notes a legislative tendency to depart from the old rules.
He further observes that a considerable number of jurisdictions, by statute, have provided a man’s
marriage revokes his will, absolutely, or as to the spouse, unless the will in some way provides to the
contrary. Atkinson, supra.
Similarly, the law pertaining to divorce and how it impliedly affects a testator’s will has experienced
change by our state courts and legislatures. In the absence of statute, it is generally agreed in this
country that a divorce, unaccompanied by a property settlement, does not revoke the testator’s will
nor the legacy in the divorced spouse’s favor. However, when such a settlement exists and the
jurisdiction recognizes generally the doctrine of revocation by operation of law, it is usually held that
there is a revocation in favor of the divorced spouse. Atkinson, supra; accord Mosely v. Mosely, 217 Ark.
536, 231 S.W.2d 99 (1950)(discussed statutory treatment and applied rule there was no revocation by
operation of law after determining § 60–407 had not yet taken effect and was, therefore, inapplicable
to the situation then before the court). Here, again, legislative change has occurred in recent years.
Professor Atkinson recognized in his work that, in an increasing number of states, there is legislation
providing that subsequent divorce revokes provisions in favor of the spouse. Atkinson, supra, citing
Mosely, supra. One authority explains this new perspective or trend as follows:
Divorce was so rare before modern legislation that it may well be treated as a
new case, fairly involving the question of the application of the existing
principles of common law and ecclesiastical law to a situation which could rarely,
if ever, be presented under the old law for specific adjudication. It seems likely
that the courts would treat divorce as a revocation if they felt that it fairly
represented the intention of the average testator. The unwillingness of the courts
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to treat this as a revocation is due in a large part to the fact that [a] testator
frequently intends his will to remain in effect in spite of the divorce. The dangers
of relying on oral evidence are such that it would be unsafe to adopt a rule
making the validity of the will depend upon the actual intention of the testator.
The courts are thus driven to a rule which represents the probable intention of
the average testator. It seems very doubtful whether the probable intention of the average
testator that a prior will should not remain in force under such circumstances is so clear as to
justify the courts in adding this as a new class of revocation by operation of law.
W. Bowe & D. Parker, Page on Wills § 21–101 at 523 (3rd ed. 1960) (emphasis supplied).
In 1949, our General Assembly enacted § 60–407 in order to avoid some of the legal uncertainties in
probate law that had arisen in past years when dealing with marriage and divorce issues and the
doctrine of implied revocation. See Note, Wills—Revocation Implied from Divorce of Testator, 9 Ark.L.Rev.
182 (1955). When applying the plain language of § 60–407 to the instant case, we can only conclude
that after Taylor executed his will, that will was not revoked by his marriage to Darby, but his
divorce from her did revoke the will provisions made in her favor.
Darby’s view or argument in this case is inconsistent in its interpretation and application of § 60–
407. She argues that the first sentence of that statute, pertaining to a testator’s divorce, applies only in
instances when the testator made the will during his marriage but not before. On the other hand,
Darby would apply the second sentence of § 60–407, because that provision upholds the validity and
continued effectiveness of a testator’s will even though he marries after it was executed. Cf. Sughrue v.
Barlow, 233 Mass. 468, 124 N.E. 285 (1919)(wherein the court revoked the will provision even
though testator left everything to the woman he later married because the will did not show on its
face the contemplated marriage). While Darby’s interpretation of § 60–407 sustains the validity of
Taylor’s will and its provisions favoring her, that construction is a tortured and inconsistent
application of its plain language.
In sum, to adopt Darby’s argument would require us to read language into § 60–407 that simply is
not there. Clearly, § 60–407 does not provide that its provision revoking a former spouse’s bequest
or devise upon divorce is dependent upon the testator having made his will during a marriage. To
supply such language, we believe, would lend uncertainty and confusion to the law, which runs
contrary to the very reason the General Assembly enacted this statute in the first place.
In re the Estate of Epperson, 284 Ark. 35, 40, 679 S.W.2d 792, 794 (1984) we examined §§ 60–407 and
–501 (Supp.1985), and in doing so, made it clear that neither of these statutes makes a distinction
concerning wills that predate a marriage and those made after a marriage. If such a distinction
should exist, it is the General Assembly’s province to make it, not this court’s. Accordingly, we hold
that § 60–407 applies in toto and that the chancellor was in error in holding otherwise.

521

11.6.4.1.2 Marriage
Estate of Murrary, 193 Cal. Rptr. 355 (1983)
WALLIN, Associate Justice.
The probate court awarded Paul Murray one-third of his deceased wife’s estate under the provisions
of Probate Code section 70. The decedent’s sons appeal.
STATEMENT OF FACTS
Paul Murray and Bonnie I. Murray were married on August 29, 1972. Their marriage produced no
children. By an earlier marriage Bonnie had three sons, Robert, Gary and Russell Blackney.
On July 31, 1978, Bonnie signed a petition to dissolve her marriage to Paul. On the same day, she
executed her last will and testament naming her three sons as sole beneficiaries of her estate.90 On
October 23, 1979, the judgment of dissolution was entered.
Bonnie and Paul lived separately for a short period. However, within a year of the dissolution, they
reconciled their differences and remarried on September 3, 1980. Three days later Bonnie died of a
brain tumor. Her will of July 31, 1978, was never revoked or changed.
On October 14, 1980 the will was admitted to probate. Paul promptly filed a petition to revoke,
claiming the will executed before the remarriage failed to provide for him and was, therefore,
revoked as to him under Probate Code section 70. He claimed one-third of Bonnie’s estate under
the laws of intestate succession. (Prob. Code, § 201 et seq., 221.) Relying principally on Estate of Poisl
(1955) 44 Cal.2d 147, 280 P.2d 789, the trial court granted judgment for Paul.
DISCUSSION
Probate Code section 70 reflects a strong public policy against disinheritance of a surviving spouse,
who is not provided for in the premarital will of the testator. (Estate of Green (1981) 120 Cal.App.3d
589, 592, 174 Cal. Rptr. 654.)
90

The pertinent paragraphs provide as follows:
“SECOND: I declare I am married to Paul Murray and there is no issue of this marriage. I declare I have three
children the issue of a former marriage: Robert Hugh Blackney, Gary Douglas Blackney and David Russell Blackney.
THIRD: Subject to the operation and effect of the conditions hereinafter noted:
A. I hereby give, bequeath and devise all of my estate, over which I have testamentary ownership and disposition, at
the time of my death, either real, personal, or mixed, of whatsoever kind of character and wheresoever situate, of
which 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,
have the power of appointment, to my said children, ROBERT HUGH BLACKNEY, GARY DOUGLAS
BLACKNEY, and DAVID RUSSELL BLACKNEY, share and share alike, provided they survive me by 120 days.
EIGHTH: Except as otherwise provided in this Will, I have intentionally and with full knowledge, omitted to provide
for my heirs and I hereby generally and specifically disinherit each, any and all persons who shall contest or attack this
will or any portion of its provisions, and expressly revoke any share or interest heretofore given in this Will to such
contestants, and I further declare that if any person other than mentioned in this Will shall establish himself or herself
to be my heir, then I give and bequeath to such person the sum of ONE DOLLAR ($1.00).”

522

Section 70 states: “If a person marries after making a will, and the spouse survives the maker, the
will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract,
or unless the spouse is provided for in the will, or in such way mentioned therein as to show an
intention not to make such provision; and no other evidence to rebut the presumption of revocation
can be received.” In this case, there is no evidence of a marriage contract and the will contains no
provision for Paul; the sole issue is the third exception’s application.
The crucial inquiry in determining whether the spouse is mentioned is whether the language of the
will expresses an intention to specifically disinherit the surviving spouse. (Estate of Green, supra, 120
Cal. App.3d 589, 592, 174 Cal.Rptr. 654.) Bonnie’s will left her estate to her sons and stated:
“Except as otherwise provided in this will, I have intentionally and with full knowledge, omitted to
provide for my heirs and I hereby generally and specifically disinherit each.”
General exclusionary clauses have been held insufficient to overcome statutory revocation. “[U]nder
such language the testator contemplated only persons who at the time of execution of the will stood in
such relationship to the decedent that they would then conceptually fall within the designated
disinherited class.” (Estate of Green, supra, 120 Cal.App.3d 589, 592-593, 174 Cal.Rptr. 654, citing
Estate of Axcelrod (1944) 23 Cal.2d 761, 767, 147 P.2d 1, emphasis added.) We find this rule
applicable to the present case.
The exclusionary clause in Bonnie’s will did not intentionally omit a future heir who becomes so by
marriage. (Estate of Duke (1953) 41 Cal.2d 509, 261 P.2d 235.) Thus, as in Green, there is no explicit
intention to omit Paul as a member of a designated disinherited class.
Bonnie’s sons next contend Paul is sufficiently mentioned in the will in paragraph SECOND to
show her intent not to provide for him. The Supreme Court in Estate of Poisl, supra, 44 Cal.2d 147,
280 P.2d 789 noted that a will must show a contemplation of a future marriage whether providing
for or disinheriting an after-acquired spouse. (See also Estate of Paul (1972) 29 Cal.App.3d 690, 695,
105 Cal.Rptr. 742.) Thus, merely naming Paul with no indication he might become a future spouse is
not enough to prevent revocation. “That indication must appear on the face of the will, and extrinsic
evidence is not admissible to show the testator’s intention, at least unless there is some ambiguity.”
(Estate of Poisl, supra, 44 Cal.2d 147, 150, 280 P.2d 789.) Bonnie’s mention of Paul in the clause
denoting her issue and marital status is not ambiguous with regard to any indication of whether Paul
is a prospective spouse. “[I]t is merely ‘noncommittal’ as were the words ‘heirs at law’ in the Duke
case.” (Ibid.)
Estate of Paul supra, 29 Cal.App.3d 690, 695, 105 Cal.Rptr. 742 concerned a will naming P. as
testator’s wife and leaving one-half his estate to his son and daughter by a previous marriage. P. was
not then his wife though they married a mere seven days later. In revoking the will under the third
exception to section 70, the court stated: “To be applicable, i.e. to prevent revocation as to the
spouse, the spouse must not only be mentioned in the will, but the ‘mentioning’ must be with a
specific intent, the intention not to provide for her. It is clear that the first of these elements is
present—the spouse was ‘mentioned.’ Our decision therefore must rest on the question of the
testator’s intent, the second element; it must be ascertained from the will itself.” (Id., at p. 695, 105
Cal.Rptr. 742.)
The will in Paul was ordered revoked even though P. was mentioned as a wife and there was a
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reasonable inference the will was executed in contemplation of marriage. Further, she was named
elsewhere as an alternate executor which the court also found insufficient to prevent revocation.
Although we have not been cited, nor can we find, a California case dealing specifically with the fact
situation before us, a distillation of the authorities provides (1) a strong public policy underlying
section 70 that looks with “disfavor toward a testator’s failure to provide for a surviving spouse.”
(Estate of Duke, supra, 41 Cal.2d 509, 512, 261 P.2d 235; and, (2) revocation by marriage is a
presumption which can be rebutted only by a clear manifestation of intent on the face of the will. (Estate of
Paul, supra, 29 Cal.App.3d 690, 696-697, 105 Cal.Rptr. 742; Estate of Poisl, supra, 44 Cal.2d 147, 150
280 P.2d 7898; Estate of Green, supra, 120 Cal.App.3d 589, 593, 174 Cal.Rptr. 654.)
Bonnie, in executing her will on the same day she filed for dissolution, may well have intended not
to provide for Paul, as the situation then presented itself. However, she did not specifically disinherit any
future marriage partner. We find it difficult to believe that a future partner, other than Paul, could
revoke the will as to himself, merely as an after-acquired spouse, yet that option is not available to
Paul when he remarries the same spouse.
Remarriage to a former spouse may occur rarely. However the purpose of the statute (to prevent
unintentional disinheritance of a surviving spouse) should apply equally to wills executed prior to a
remarriage.
Probate Code section 70 legislates the natural assumption that a decedent does not intend to
disinherit an after-acquired spouse. We perceive no reason for a different rule merely because the
after-acquired is also a former spouse. Remarriage resumed a relationship interrupted by a brief
period of unhappiness leading to dissolution of the first marriage. The pretermitted heir statute
applies to all marriages unless one of its specific exceptions is fully satisfied.
The judgment is affirmed.
11.6.4.2 Children

11.6.4.2.1 Omitted Children
In the case of a child born after the execution of the will, the testator must make it clear that
he or she intended to disinherit the child. If the omitted child is not disinherited, the statutes in the
majority of jurisdictions follow the Uniform Probate Code (UPC) approach and provide for the
child to receive a portion of the testator’s estate. This is similar to the negative disinheritance rule.
Under that rule, the disinherited child can take his or her intestate share of the estate unless the
testator makes affirmative dispositions of all of his or her property. This rule has been modified by
the UPC.

UPC § 2-302. Omitted Children
(a) Except as provided in subsection (b), if a testator fails to provide in his [or her] will
for any of his [or her] children born or adopted after the execution of the will, the omitted
after-born of after-adopted child receives a share in the estate as follows:
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(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
child would have received had the testator died intestate, unless the will devised all or
substantially all of the estate to the other parent of the omitted child and that other parent
survives the testator and is entitled to take under the will.
(2) If the testator had one or more children living when he [or she] executed the will, and the
will devised property or an interest in property to one or more of the then living children, an
omitted after-born or after-adopted child is entitled to share in the testator’s estate as
follows:
(i) The portion of the testator’s estate in which the omitted after-born or after adopted
child is entitled to share is limited to devises made to the testator’s then living children under
the will.
(ii) The omitted after-born or after-adopted child is entitled to receive the share of the
testator’s estate, as limited in subparagraph (i), that the child would have received had the
testator included all omitted after-born and after-adopted children with the children to
whom devises were made under the will and had given an equal share of the estate to each
child.
(iii)To the extent feasible, the interest granted an omitted after-born or after adopted child
under this section must be of the same character, whether equitable or legal, present or
future, as that devised to the testator’s then-living children under the will.
(iv) In satisfying a share provided by this paragraph, devises to the testator’s children who
were living when the will was executed abate ratably. In abating the devises of the then-living
children, the court shall preserve to the maximum extent possible the character of the
testamentary plan adopted by the testator.
(b) Neither subsection (a)(1) nor subsection (a)(2) applies if:
(1) it appears from the will that the omission was intentional; or
(2) the testator provided for the omitted after-born or after-adopted child by transfer
outside the will and the intent that the transfer be in lieu of a testamentary provision is
shown by the testator’s statements or is reasonably inferred from the amount of the
transfer or other evidence.
(c) If at the time of execution of the will, the testator fails to provide in his [or her] will for a
living child solely because he [or she] believes the child to be dead, the child is entitled to
share in the estate as if the child were an omitted after-born or after-adopted child.
Problems
1. In 1990, Gloria married Michael. Gloria gave birth to the couple’s first child, Patrick, in 1991.
The couple’s second child, Tresmal, was born in 1993. In 1997, Gloria executed a will leaving her
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estate to her two children, Patrick and Tresmal. The estate was to be split evenly between the two
boys. Gloria and Michael divorced in 2000. In 2001, Gloria married Alvin. Gloria gave birth to
Alonzo in 2002. In 2003, Gloria was killed in an automobile accident. Gloria’s will was probated in
1994. In a UPC jurisdiction, what, if anything, is Alonzo entitled to inherit from Gloria’s estate?
2. In 2003, Sandra married Henry. In 2010, Henry executed a will leaving his estate to Sandra. Two
years later, Sandra and Henry adopted twins, Cody and Catherine. Henry died of lung cancer in
2013. In a UPC jurisdiction, what, if anything, will Cody and Catherine inherit from Henry’s estate?
3. Geneva was a divorced woman who had one biological child, Elliot, and one adopted child,
Robert. Geneva wanted her oldest son, Robert, to marry Kendra, her best friend’s daughter. Robert
refused, so Geneva told him that he would not receive any of her multi-million dollar estate. Geneva
executed a will stating, “I want my son, Elliot, to receive 100% of my estate. No one else, including
Robert, is entitled to any of my estate.” After she executed the will, Geneva had an affair with
Jeremy. As a result of the affair, Geneva gave birth to Joneka. A few months after Joneka’s birth,
Geneva was diagnosed with breast cancer. Geneva’s lawyer asked her if she wanted to modify her
will to provide for Joneka. In response, Geneva stated, “Joneka’s father has enough money to take
care of her. Elliot needs all of the help he can get.” Geneva died without changing her will. In a
UPC jurisdiction, what, if anything, will Joneka inherit from Geneva’s estate?
4. Claudia was the mother of five children, Rebecca, Keisha, Rashad, Ozark and Benjamin. Four of
Claudia’s children went to college and became productive members of society. However, Benjamin
was a permanent student. He never worked. He just kept acquiring college degrees. Claudia won
fifty million dollars in the lottery. Claudia opened up a joint bank account with Benjamin. She placed
five hundred thousand dollars in the bank account. Claudia sent Benjamin a letter informing him of
the bank account. The letter contained the following statement: “You need to grow up and get a job.
The money in this bank account is all I ever plan to give you. When it runs out, you should get a job
or go hungry.” Later, Claudia executed a will leaving her estate in equal shares to Rebecca, Keisha,
Rashad and Ozark. What, if anything, will Benjamin inherit from Claudia’s estate?
5. Fatima executed a will leaving her entire estate to charity. After the execution of the will, Fatima
married Ali and gave birth to Urooj. Fatima and Ali established a trust for the benefit of Urooj.
Fatima and Ali died in a house fire. What, if anything, will Urooj inherit from Fatima’s estate?

11.6.4.2.2 After Born Children
Hedlund et al. v. Miner et. al., 69 N.E.2d 862 (Ill. 1946)
THOMPSON, Justice.
This case comes to us on direct appeal from a partition decree entered in the circuit court of Ford
county. The complaint for partition was filed by Carl A. Hedlund and Allen G. Miner, each of
whom is the owner of an undivided one-third of the premises sought to be partitioned. The other
one-third interest was owned by Leslie E. Miner, who died seized thereof on February 22, 1943,
leaving a widow, Lois Sweet Miner, and one child, Sandra Louise Miner, aged 1 year, 3 months and
19 days, at the time of her father’s death.
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It appears from the record that on October 11, 1941, Leslie E. Miner, who then had no children, but
was shortly expecting the birth of a child, made and executed a last will and testament, which,
omitting the formal parts, is as follows: ‘I devise and bequeath all the estate and effects whatsoever
and wheresoever, both real and personal, to which I may be entitled, or which I may have power to
dispose of at my decease, unto my dear wife, Lois Sweet Miner, absolutely; and I appoint her sole
executrix of this my will, and I direct that she be exempt from giving any surety or sureties on her
official bond as executrix.’ Afterward, on November 3, 1941, the appellee, Sandra Louise, was born,
and approximately two weeks later Miner delivered the executed will to his wife. Thereafter he died
testate, leaving his will as originally made, and leaving his said widow and child as his only heirs-atlaw.
The will was admitted to probate and letters testamentary were issued to the widow, as executrix, by
the probate court of Cook county, on April 22, 1943. At the hearing on the petition to probate the
will, the child was represented by a guardian ad litem, appointed by the court. The estate of the
testator, in addition to his interest in the real estate here sought to be partitioned, consisted of
approximately $18,000 in cash and other personal property of considerable value. The widow filed
her final account and report as executrix in the probate court of Cook county on February 3, 1944,
showing payment in full of all claims and costs of administration and distribution of all the
remainder of the property to herself, individually, as sole beneficiary and legatee, and an order was
entered by the probate court on the same day approving the final report of distribution, declaring
the estate settled and discharging the executrix. This order was entered without notice to the child,
Sandra Louise, and she was not represented by guardian ad litem nor in any other manner at the
hearing on the final report. No appeal or other proceedings for review were taken concerning the
action of the probate court.
The complaint for partition, to which both the mother, Lois, and the child, Sandra Louise, were
made parties defendant, set forth the death and heirship of Leslie E. Miner. It also set forth the
execution by him of his last will and testament, the subsequent birth of his daughter, Sandra Louise,
twenty-two days later, the admission of the will to probate in Cook county, the issuing of letters
testamentary to the widow, as executrix, and the final settlement of the estate in that court on a
report of distribution of all the property of the estate to the widow as sole legatee and beneficiary.
The complaint then alleged that because of the birth of the daughter after the execution of the will, a
construction of the will was necessary to determine whether said child possessed any rights in the
realty under section 48 of the Probate Act. The complaint concluded with a prayer that the court
construe the will of Leslie E. Miner, deceased, determine the rights of the parties in the real estate,
and enter a decree for partition of said lands based on such determination. Appellant answered,
denying that the daughter, Sandra Louise Miner, was entitled to any interest in the real estate, and
claiming that the said Sandra Louise Miner was disinherited by the will of her father, Leslie E. Miner.
The guardian ad litem appointed for Sandra Louise filed an answer and counterclaim by which it was
alleged that Sandra Louise, because of her birth after the execution of the will of Leslie E. Miner,
and because it did not appear by said will that it was the intention of the testator to disinherit her,
was entitled to receive two-thirds of the interest which her father had in the real estate at the time of
his death. The counterclaim further alleged that the child was entitled to a two-thirds interest in the
net personal estate of Leslie E. Miner; that Lois Sweet Miner was wrongfully withholding the said
two-thirds share, and that the said Lois Sweet Miner holds, on a constructive trust for the benefit of
the minor, two thirds of the net personal estate.
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The matter was referred to a master in chancery, who, after hearings, reported that the plaintiffs
were entitled to a partition; that the child, Sandra Louise, was entitled to a two ninths interest in the
real estate and a two-thirds interest in the net personal estate of Leslie E. Miner; that Lois Sweet
Miner, the mother, holds in constructive trust, for the benefit of Sandra Louise Miner, the portion
of the real estate involved and also two thirds of the personal property of Leslie E. Miner; that a
decree of partition should be entered in accordance with the interests of the parties therein and that
appellant should be directed to pay and deliver to Sandra Louise Miner two thirds of the money and
personal property distributed under the order of the probate court. In arriving at this conclusion, the
master held that there was no intention expressed in the will to disinherit Sandra Louise and that the
provisions of section 48 of the Probate Act apply to give to the child that portion to which she
would be entitled had there been no will. Objections were filed by the widow to the master’s report,
which were overruled by the master. The circuit court, after a hearing on the master’s report and the
objections thereto, which were ordered to stand as exceptions, approved the report and entered a
decree in accordance with its conclusions.
To obtain a reversal of the decree, appellant makes the contention, among others, that the child,
Sandra Louise Miner, (hereinafter referred to as the appellee,) was intentionally disinherited by the
will of her father and therefore section 48 of the Probate Act has no application and does not
operate to entitle the child to any portion of the father’s estate.
Section 48 of the Probate Act reads as follows: ‘Unless provision is made in the will for a child of
the testator born after the will is made or unless it appears by the will that it was the intention of the
testator to disinherit the child, the child is entitled to receive the portion of the estate to which he
would be entitled if the testator had died intestate, and all devises and legacies shall be abated
proportionately therefor.’ Ill.Rev.Stat.1945, chap. 3, par. 199. This section, which was enacted as a
part of the Probate Act of 1939, is a restatement, with verbal changes only, of that part of section 10
of the Descent Act concerning the effect upon a parent’s will of the subsequent birth of a child,
which, prior to its repeal by said Probate Act, had been in effect for many years.
This provision of section 10 of the former statute was as follows: ‘If, after making a last will and
testament, a child shall be born to any testator, and no provision be made in such will for such child,
the will shall not on that account be revoked; but unless it shall appear by such will that it was the
intention of the testator to disinherit such child, the devises and legacies by such will granted and
given, shall be abated in equal proportions to raise a portion for such child equal to that which such
child would have been entitled to receive out of the estate of such testator if he had died intestate.’
Ill.Rev.Stat.1937, chap.39, par. 10.
Under the express provisions of both section 48 of the present Probate Act and section 10 of the
former Descent Act, a will, making no provision for an after-born child, is not effective as regards
such child unless it appears by the will that it was the intention of the testator to disinherit the child.
It is evident, from the wording of the statute in both instances, that the controlling factor in
determining its applicability is the testamentary intent of the parent, and that in order to remove the
will from the operation of the statute, the intention to disinherit must appear by the will. The
requirement that the testator’s intention to disinherit any after-born child or children must appear by
the will is no different, however, from the requirement necessary to render effective any other
intention of the testator, since it is well established that in all cases the intention of the testator
which the courts will carry into effect is that expressed by the language of the will when interpreted
in view of the facts and circumstances surrounding the testator at the time of its execution.
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The object of the statute is not to control the intention of the parent or to restrict his absolute
power to disinherit any child, whether living or subsequently born, but only to provide for such
after-born children as were neither provided for nor disinherited in the will. The rule laid down in
the cases involving the application of the statute is, that although the testator’s intention to disinherit
after-born children must be drawn from the will itself, it is not essential that such intention be
declared in express terms, but the same may be drawn from the language of the will when construed
in connection with the proved facts and circumstances surrounding the testator when the will was
made, evidence of which may be received, not for the purpose of changing the language of the will,
but 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.
The question then to be considered in this case is whether it appears by the will of Leslie E. Miner
that it was his intention to disinherit his daughter, Sandra Louise Miner, whose birth was expected to
and did occur within a short time after the execution of the will. Ordinarily, a will purporting to
devise and bequeath all the property of a testator to a beneficiary therein named is equivalent to the
expression of an intention to disinherit all other persons, and it is unnecessary to construe the will to
ascertain the testator’s intentions. When, however, such will is taken in connection with the
provisions of section 48 of the Probate Act, a latent ambiguity is raised and it becomes necessary to
construe the will in order to ascertain if it was the intention of the testator to therein disinherit his
after-born child or children.
This court, in a number of cases involving the application of the statute, has had occasion to
construe wills, including those where a devise simpliciter appears in the will as well as other forms of
wills, for the purpose of ascertaining from such wills the intention of the testator as to disinheriting
after-born children. Upon an examination of these cases we find that where a testator, having a
living child or children and another child soon to be born, executed a will, giving to each of his
living children a share in his estate, but making no provision for, or mention of any unborn child or
children and using no express words of disinheritance therein, this court has construed the will in
such instances as not disclosing an intention of the testator to disinherit the after-born child. Lurie v.
Radnitzer, 166 Ill. 609, 46 N.E. 1116, Ward v. Ward, 12.0 Ill. 111, 11 N.E. 336.
The same construction was also adopted where a will making provision for the testator’s living
children neither provided for nor expressly disinherited after-born children, and another child of the
testator was born more than a year and a half subsequent to the execution of the will. Salem National
Bank v. White, 159 Ill. 136, 42 N.E. 312. In another instance, where a testator, having two children,
aged respectively four and two years, executed his will, giving all his property to his wife and making
no reference or provision concerning children, present or after-born, the will was construed as
disinheriting a son born two months after its execution. Hawke v. Chicago & Western Indiana Railroad
Co., 165 Ill. 561, 46 N.E. 240. In that case this court stated that it was not reasonable to believe that
the testator intended to exclude his two infant children, who were living with him when the will was
executed, and not at the same time exclude another child to be born within the next two months
thereafter. The same construction was adopted and the same reasoning applied in Froehlich v.
Minwegen, 304 Ill. 462, 136 N.E. 669, and Peet v. Peet, 229 Ill. 341, 82 N.E. 376.
In each of these cases it was held that a will made by a testator having at the time of its execution a
living child or children, which gave all of his property to his wife and made no reference or
provision concerning children, either present or after-born, sufficiently manifested the testator’s
529

intention to disinherit after-born children, when considered in connection with the circumstances
surrounding the testator when the will was made. In the Froelich case the testator had two children
born prior to the making of his will and six born thereafter, but there is nothing showing the ages of
the living children at the time the will was executed or showing how long it was thereafter before
another child was born. In the Peet case the testator, at the time of executing his will, had one child
aged three years, and another child was born about two and a half years subsequent to the making of
the will.
It can be seen, therefore, that the decisions in this State are to the effect that where a testator having
living children, disinherits them, little short of an express provision in the will for after-born children
will be construed as sufficient to raise a portion for any after-born child; whereas, if the testator
provides in his will for his living children, little short of an express disinheritance of after-born
children will be construed as precluding the after-born child from sharing in the estate.
The latest case in which the applicability of the statute in question was considered by this court, and,
so far as we are able to discover, the only case where the testator had no children at the time of
executing the will and made no provision of any kind therein concerning children, is that of Hawkins
v. McKee, 321 Ill. 198, 151 N.E. 577. In the Hawkins case the testator, William T. Hawkins, had no
children living at the time he executed his will on January 9, 1908. On November 27, 1908, a child
was born to the testator and his wife, and on September 9, 1910, the birth of their second child
occurred. The testator died on May 9, 1913, leaving a widow, the beneficiary in his will, and the two
minor children. The will in that case was in simple language, giving and devising to his wife all his
estate, real and personal, and appointing her sole executrix; and this court held that it did not, in
view of the circumstances surrounding its execution, disinherit the after-born children. We there
pointed out, after a review of our former decisions construing wills for the purpose of ascertaining
whether or not after-born children had been disinherited, that in no case in this State had a will ever
been construed as showing an intention to disinherit after-born children where the testator had no
children at the time of making the will and after-born children were not referred to in the will, and
also stated that these distinguishing facts were of such importance in considering the application of
the statute, that the cases previously considered by this court could not be held controlling.
Both appellant and appellee cite and rely upon the Hawkins case in support of their respective
contentions. Appellant argues that the language in the opinion that ‘since the testator had no
children and no reason to know that he would have, there is nothing to indicate that he had any
intention whatever respecting after-born children’ shows plainly that had the birth of a child to the
testator and his wife been imminent, and the testator, in making his will, had in mind such unborn
child, then the will would have been construed as disinheriting the child. The conclusion reached
does not seem to follow from the language quoted. The most that can be said of this language is that
it implies that, under such circumstances, the will would have been construed as indicating that the
testator did have an intention respecting unborn children, but does not imply, in the least, what such
intention might be construed to be.
Appellant contends that the will of Leslie E. Miner and the facts and circumstances existing at the
time of the execution of the will manifest his intention to disinherit his child about to be born and
exclude it from receiving any portion of his estate. The record discloses that Miner and the
appellant, at the time the will was executed, were happily married and anticipating with joy the
coming of the baby, and that he was solicitous of her welfare during the pregnancy. These facts and
circumstances cannot justly be said to indicate that the testator intended to disinherit the child. Nor
530

does the will contain anything indicating that he intended the statute should not have its full
operation. The presumption must be indulged that he knew the law and had the provisions of this
statute in mind when making his will. Lurie v. Radnitzer, 166 Ill. 609, 46 N.E. 1116, 1118. The
following language of this court in the case last cited might also be aptly applied to the present case:
‘It may be observed, also, that the testator could not know that the child would be born alive. He
did know, however, as it must be held, that if he made no provision for the child, and did not by the
will show an intention to disinherit it, it would, if born alive, receive its due share, under the statute
making provision in such cases.’ Viewed in this light, the testator, Leslie E. Miner, by his will
provided for his wife under any and all circumstances and also for his unborn child in the event such
child should be born alive and survive the testator.
We are of the opinion that it does not appear by the will in this case, when properly construed, that
it was the intention of the testator to disinherit the child, Sandra Louise Miner, born subsequent to
the time the will was made. There is nothing in the case of Hawkins v. McKee contrary to the
conclusion we have reached in this case.
Decree affirmed.
Notes and Questions
1. Parents are legally obligated to provide financial support for their children. Therefore,
noncustodial parents must pay child support. Nonetheless, that duty ends when the parent dies.
Since children do not have a right to inherit from their parents, their parents can disinherit them.
However, should parents be permitted to disinherit minor and disabled children? What are the pros
and cons of the majority approach which allows parents to disinherit their children regardless of
their youth or disability?
2. What are the pros and cons of the Uniform Probate Code’s approach to the omitted child
problem?
3. Should parents be required to state reasons why they are disinheriting their children?
4. In light of the Hodel decision discussed in Chapter Seven, is Louisiana’s forced heir statute
unconstitutional? Is there a difference between prohibiting a person’s property from being disposed
of under the intestacy system and requiring that a portion of the person’s property be disposed of
under the intestacy system?
5. In all jurisdictions the spouse is entitled to a share of the decedent’s estate whether he or she
leaves a will or dies intestate. Therefore, a person cannot disinherit his or her spouse. In light of that
fact, should a person be able to disinherit his or her minor and disabled children?
6. The Hedlund court found that the father did not intend to disinherit the child born after the
execution of the will. At the time the will was executed the testator’s wife was pregnant, so he knew
about the child’s impending birth. However, he failed to make provision for the child in the will.
What are arguments in favor of finding that the testator intended to disinherit the afterborn child?
What are arguments in favor of finding that the testator did not intend to disinherit the afterborn
child? The court made a distinction between cases involving a testator who had living children at the
531

time of the execution of the will and a testator who did not have children at the time of the
execution of the will. What was that distinction? Should that distinction matter in deciding whether
or not the testator intended to disinherit his afterborn child?

532

Chapter Twelve: Non-Attested Wills

12.1

Introduction

A large number of people die intestate because they do not take the time to execute a will. In
Chapter Eleven, we discussed the requirements necessary to execute a validly attested will. It is
thought that the required formalities deter persons from executing wills. Some jurisdictions permit
people to have less formal wills. These wills do not have to be witnessed and provide more
convenient options for persons who may be intimidated by the traditional wills process. The
majority of this chapter consists of an examination of the legal issues that occur when a person seeks
to dispose of his or her property by using a holographic will. This chapter also includes a brief
discussion of nuncupative (oral) wills.
12.2

Holographic Will

Uniform Probate Code § 2-502. Execution; Witnessed or Notarized Wills; Holographic
Wills.
(b) [Holographic Wills.] A will that does not comply with subsection (a) is valid as a holographic
will, whether or not witnessed, if the signature and material portions of the document are in the
testator’s handwriting.
(c) [Extrinsic Evidence.] Intent that a document constitute the testator’s will can be established by
extrinsic evidence, including, for holographic wills, portions of the document that are not in the
testator’s handwriting.
A holographic will is a will that is handwritten. In order to be valid, the will must be written
in the testator’s handwriting and it must contain the testator’s signature. The entire will does not
have to be in the testator’s handwriting; however, the material portions, including those parts
showing testamentary intent, must be in the testator’s handwriting. About half of the states
recognize holographic wills. The challenges to these types of wills usually focus upon the validity of
the testator’s signature and the inclusion of information in the will that is not in the testator’s
handwriting. Internet sites like LegalZoom have pre-printed will forms that testator’s can fill out. If
these wills are not properly witnessed, they may be submitted to probate as holographic wills.
Therefore, courts have to determine whether or not those types of wills satisfy the requirements
necessary to be valid holographic wills.
12.2.1 Testamentary Intent
A will speaks at death, so the testator must intend for the gift to only take effect after he or
533

she dies. However, the testator must have a present intent to make the transfer even though the
transfer will not be completed until after death. When evaluating the validity of a holographic will, it
is critical that the court determine whether or not the person meant for the instrument to be
testamentary in nature. The execution of an attested will includes a formal process. The lawyer, the
testator, and the witnesses gather for the signing ceremony. Thus, there is no doubt that the purpose
of the document that is signed by the testator and the witnesses is to govern the distribution of the
testator’s property after he or she dies. Since a holographic will may be written on a wall, a napkin,
an envelope or any other surface, the testamentary nature of the writing may not be so evident.

In re Kimmel’s Estate, 278 Pa. 435 (Pa. 1924)
SIMPSON, J.
One of decedent’s heirs at law appeals from a decree of the orphans’ court, directing the register of
wills to probate the following letter:
‘Johnstown, Dec. 12.
‘The Kimmel Bro. and Famly We are all well as you can espec fore the time of the Year. I received
you kind & welcome letter from Geo & Irvin all OK glad you poot your Pork down in Pickle it is
the true way to keep meet every piece gets the same, now always poot it down that way & you will
not miss it & you will have good pork fore smoking you can keep it from butchern to butchern the
hole year round. Boys, I wont agree with you about the open winter I think we are gone to have one
of the hardest. Plenty of snow & Verry cold verry cold! I dont want to see it this way but it will
come see to the old sow & take her away when the time comes well I cant say if I will come over yet.
I will wright in my next letter it may be to ruff we will see in the next letter if I come I have some
very valuable papers I want you to keep fore me so if enny thing hapens all the scock money in the 3
Bank liberty lones Post office stamps and my home on Horner St goes to George Darl & Irvin
Kepp this letter lock it up it may help you out. Earl sent after his Christmas Tree & Trimmings I
sent them he is in the Post office in Phila working.
‘Will clost your Truly,
Father.’
This letter was mailed by decedent at Johnstown, Pa., on the morning of its date-Monday,
December 12, 1921-to two of his children, George and Irvin, who were named in it as beneficiaries;
the envelope being addressed to them at their residence in Glencoe, Pa. He died suddenly on the
afternoon of the same day.
Two questions are raised: First. Is the paper testamentary in character? Second. Is the signature to it
a sufficient compliance with our Wills Act? Before answering them directly, there are a few
principles, now well settled, which, perhaps, should be preliminarily stated.
While the informal character of a paper is an element in determining whether or not it was intended
to be testamentary (Kisecker’s Estate, 190 Pa. 476, 42 Atl. 886), this becomes a matter of no moment
534

when it appears thereby that the decedent’s purpose was to make a posthumous gift. On this point
the court below well said:
‘Deeds, mortgages, letters, powers of attorney, agreements, checks, notes, etc., have all been held to
be, in legal effect, wills. Hence, an assignment (Coulter v. Shelmadine, 204 Pa. 120, 53 Atl. 638), *** a
deed (Turner v. Scott, 51 Pa. 126), a letter of instructions (Scott’s Estate, 147 Pa. 89, 23 Atl. 212, 30
Am. St. Rep. 713), a power of attorney (Rose v. Quick, 30 Pa. 225), and an informal letter of requests
(Knox’s Estate, 131 Pa. 220, 18 Atl. 1021, 6 L.R.A. 353, 17 Am. St. Rep. 798), were all held as wills.’
It is equally clear that where, as here, the words ‘if enny thing hapens,’ condition the gift, they
strongly support the idea of a testamentary intent; indeed they exactly state what is expressed in or
must be implied from every will. True, if the particular contingency stated in a paper, as the
condition upon which it shall become effective, has never in fact occurred, it will not be admitted to
probate. Morrow’s Appeal, 116 Pa. 440, 9 Atl. 660, 2 Am. St. Rep. 616; Forquer’s Estate, 216 Pa. 331, 66
Atl. 92, 8 Ann. Cas. 1146. In the present case, however, it is clear the contingency, ‘if enny thing
hapens,’ was still existing when testator died suddenly on the same day he wrote and mailed the
letter; hence, the facts not being disputed, the question of testamentary intent was one of law for the
court. Davis’ Estate, 275 Pa. 126, 118 Atl. 645.
As is often the case in holographic wills of an informal character, much of that which is written is
not dispositive; and the difficulty, in ascertaining the writer’s intent, arises largely from the fact that
he had little, if any, knowledge of either law, punctuation, or grammar. In the present case this is
apparent from the paper itself; and in this light the language now quoted must be construed:
‘I think we are gone to have one of the hardest [winters]. Plenty of snow & Verry cold Verry cold! I
dont want to see it this way but it will come * * * well I cant say if I will come over yet. I will wright
in my next letter it may be to ruff we will see in the next letter if I come I have some very valuable
papers I want you to keep fore me so if enny thing hapens all * * * [the real and personal property
specified] goes to George Darl and Irvin Kepp this letter lock it up it may help you out.’
When resolved into plainer English, it is clear to us that all of the quotation, preceding the words ‘I
have some very valuable papers,’ relate to the predicted bad weather, a doubt as to whether decedent
will be able to go to Glencoe because of it, and a possible resolution of it in his next letter; the
present one stating ‘we will see in the next letter if I come.’ This being so, the clause relating to the
valuable papers begins a new subject of thought, and since the clearly dispositive gifts which follow
are made dependent on no other contingency than ‘if enny thing happens,’ and death did happen
suddenly on the same day, the paper, so far as respects those gifts, must be treated as testamentary.
It is difficult to understand how the decedent, probably expecting an early demise-as appears by the
letter itself, and the fact of his sickness and inability to work, during the last three days of the first or
second week preceding-could have possibly meant anything else than a testamentary gift, when he
said ‘so if enny thing hapens [the property specified] goes to George Darl and Irvin’; and why, if this
was not intended to be effective in and of itself, he should have sent it to two of the distributees
named in it, telling them to ‘Kepp this letter lock it up it may help you out.’
The second question to be determined depends on the proper construction of section 2 of the Wills
Act of June 7, 1917 (P. L. 403, 405; Pa. St. 1920, § 8308), which is a re-enactment of section 6 of the
Wills Act of April 8, 1833 (P. L. 249), reading as follows:
535

‘Every will shall be in writing, and, unless the person making the same shall be prevented by the
extremity of his last sickness, shall be signed by him at the end thereof, or by some person in his
presence and by his express direction.’
The letter now being considered was all in the handwriting of decedent, including the word ‘Father,’
at the end of it; and hence the point to be decided would appear to resolve itself into this: Does the
word ‘Father,’ when taken in connection with the contents of the paper, show that it was ‘signed by
him?’ When stated thus bluntly-in the very language of the statute-the answer seems free from
doubt; but since we said in Brenna’s Estate, 244 Pa. 574, 581, 91 Atl. 220, 222, that ‘signing in the
usual acceptation of the word and in the sense in which, presumably, it is used in the act is the
writing of a name or the affixing of what is meant as a signature,’ we must go further and determine
whether or not the word ‘Father’ was ‘meant as a signature.’
In Vernon v. Kirk, 30 Pa. 218, 223, it is said:
‘The purpose of the Legislature seems rather to have been to designate the place where the signature
should be, to wit, at the end of the will, than to prescribe the manner in which it should be made. * *
* It was not, as was supposed in the earlier cases, to furnish, in the handwriting, evidence of identity,
and protection against fraud; for the name might be signed by the testator or by another at his
request, in which last case no such proof is deducible from the handwriting. The authentication of
the instrument was left to the witnesses. * * * While the place of the signature is rigidly defined, its
made is left unfetered.’
In Knox’s Estate, 131 Pa. 220, 229, 18 Atl. 1021, 1022 (6 L.R.A. 353, 17 Amm. St. Rep. 798), this
subject was fully considered, and we there said:
‘The purposes of the act of 1833 were accuracy in the transmission of the testator’s wishes, the
authentication of the instrument transmitting them, the identification of the testator, and certainty as
to his completed testamentary purpose. The first was attained by requiring writing instead of mere
memory of witnesses, the second and third by the signature of testator, and the last by placing the
signature at the end of the instrument. The first two requirements were derived from the English
statute; the third was new (since followed by the act of 1 Vict. c. 26), and was the result of
experience of the dangers of having mere memoranda or incomplete directions taken for the
expression of final intention. Baker’s Appeal, 107 Pa. 381; Vernon v. Kirk, 30 Pa. 223. These being the
purposes of the act, and the Legislature not having concerned itself with what should be deemed a
signing, we must look dehors the statute for a definition. As already said, the act is founded on the
statute of frauds, 29 Car. 2. Under that act it has been held that the signing may be by a mark, or by
initials only, or by a fictitious or assumed name, or by a name different from that by which the
testator is designated in the body of the will. 1 Jarman on Wills, 78; 1 Redf. of Wills, c. 6, § 18, and
cases there cited.’
This has been approved and followed in Plate’s Estate, 148 Pa. 55, 23 Atl. 1038, 22 Am. St. Rep. 805;
Swire’s Estate, 223 Pa. 188, 192, 73 Atl. 1110; and Churchill’s Estate, 260 Pa. 94, 100, 103 Atl. 533,
and has never been doubted. If, then, the word ‘Father,’ was intended as a completed signature to
this particular character of paper, it answers all the purposes of the Wills Act. That it was so
intended we have no doubt. It was the method employed by decedent in signing all such letters, and
was mailed by him as a finished document. In these respects it varies from Brennan’s Estate, supra, so
much relied on by appellant, where the writing of ‘your misserable father,’ was construed to be not a
536

signature, but part of an unfinished paper, which decedent retained, and to which his signature was
not subsequently attached.
It is of course true-and upon this point Plate’s Estate, supra, and Brennan’s Estate, supra, were decidedthat while ‘exactly what constitutes a signing has never been reduced to a judicial formula,’ if that
which is written at the end of the paper is not ‘a full and complete signature according to the
intention and understanding of the testator,’ it is not a compliance with the statute. The same cases
decide, however, it will be held to be so, ‘if the intent to execute is apparent.’ In the present case, as
already pointed out, testator used the word ‘Father,’ as a complete signature, and mailed the paper as
a finished document. True, a formal will would not be so executed; but this is not a formal will. It is
a letter, signed by him in the way he executed all such letters, and, from this circumstance, his ‘intent
to execute is apparent’ beyond all question.
Decree affirmed and appeal dismissed, the costs in this court to be paid by the estate of Harry A.
Kimmel, deceased.

Estate of Southworth, 51 Cal. App. 4th 564 (Cal. Ct. App. 1996)
GILBERT, J.
A charitable donor card contains printed language showing an intent to make a future gift to the
charity. In the blank space following the printed words a testator writes that her entire estate is to be
left to the charity. She signs and dates the donor card. Does her handwriting on the donor card
constitute a holographic will? No.
The trial court admitted a donor card into probate as a holographic will. Half siblings, Jeanette
Southworth, Jack Southworth, and an heir finder, Francis V. See, appeal from the judgment of the
trial court in favor of respondent, North Shore Animal League (NSAL).
According to Probate Code section 6111, the material provisions of a holographic will must be in
the handwriting of the testator, and the required testamentary intent may be set forth either in a
holographic will or as part of a commercially printed form will. Because the handwriting here
incorporates printed material on a donor card stating the future intention of Dorothy Southworth,
the deceased, we reverse the judgment.
Facts
Decedent never married and had no children. On March 4, 1986, in response to decedent’s request
for information, NSAL sent a letter to her describing its lifetime pet care program and explaining
how to register for it. NSAL asked that she return its enclosed pet care registration card, contact her
attorney to include her bequest to NSAL in her estate and send a copy of the bequest to NSAL.
NSAL informed her that “[e]ven if you don’t currently have a will, we’ll accept your Registration on
good faith and maintain an Active file on your pet while you’re arranging the Bequest.” Decedent
never returned the registration card to NSAL.
On September 4, 1987, decedent requested registration with The Neptune Society for cremation of
her body upon her death. On the registration form, she stated that she never married and that
537

Neptune should contact the Ventura County Coroner to make arrangements. On the same date,
decedent sent a letter to NSAL asking whether or not it destroys animals.
Her letter to NSAL states:
“I have been terribly upset since I heard [that NSAL destroys animals] because I have always truly
believed that you did not destroy animals and this was the determining factor in my selection of you
as the beneficiary of my entire estate as I have no relatives and do not want the State of California,
courts, or attorneys to benefit from my hard earned labor. I should appreciate greatly if you would
clarify this point about the destruction of animals at your shelter and tell me honestly and truly what
your policy is [and] not hedge because I have mentioned leaving my estate to your organization.”
On September 9, 1987, NSAL wrote to assure her that it would not destroy any pet. NSAL included
a brochure regarding estate planning. The brochure explained that a letter or a verbal promise will
not effectuate a testamentary gift; that a proper written will is required. The mailing urged members
to consult an estate planning attorney to avoid the possibility that the estate might end up with
“distant relatives whom you didn’t even know.” Decedent never prepared a formal will.
NSAL sent a donor card to the decedent. It stated: “Your newest gift to the North Shore Animal
League will help get more homeless dogs and cats out of cages and into new homes.” The donor
card thanked her “for your interest in making a bequest to the League.” It explained that she could
change her life insurance policy or provide for animals in her will by calling her attorney. It sought
gifts and legacies and asked her to complete and return the donor card.
On April 19, 1989, she returned the donor card to NSAL. The card provided three options: a.
naming NSAL as a beneficiary of a life insurance policy, b. changing one’s will to leave securities or
cash to NSAL, or c. not taking immediate action, but stating her intentions.
On the card, the decedent circled printed option c. which states: “I am not taking action now, but
my intention is [in the blank space provided she wrote] My entire estate is to be left to North Shore
Animal League.”
The donor card also included a printed statement which reads, “The total amount that the animal
shelter will someday receive is [she wrote in the blank space] $500,000.” The card then stated, “I
would like the money used for:
“Food and shelter for the animals
“Adoption Fund to advertise for new owners
“Spaying and Neutering Program
“Unrestricted use[.]”
Decedent placed an “x” next to the food and spaying options listed. She signed and dated the donor
card.
On May 10, 1989, NSAL sent a thank you letter to decedent for “letting us know that you will
538

remember the North Shore Animal League in your will.” The letter requested that decedent “have
your attorney send us a copy of your will[.]”
The Neptune Society asked for additional information to complete the death certificate, pursuant to
amendments to the Probate Code. Decedent returned Neptune’s supplemental form and stated that
there are “[n]o living relatives” and to “[p]lease notify North Shore Animal League.” She included
NSAL’s address, telephone numbers and the name of the executive director of NSAL. She signed
the supplemental form and dated it October 20, 1989.
On September 2, 1992, NSAL sent a letter to decedent acknowledging that in March 1989 she wrote
NSAL to state that she intended to take action leading to its becoming one of the beneficiaries of
her estate. NSAL requested a meeting with decedent, thanking her for her “kind thoughts and
generous support.” She never responded to this request.
On January 14, 1994, Dorothy Southworth died. The Ventura County Public Administrator was
appointed special administrator of her estate. The public administrator filed notice of its petition to
administer her estate. NSAL filed its objection to the petition on the grounds that the donor card
constitutes a holographic will of the decedent. Francis V. See contested the admission of the alleged
holographic will on behalf of Jeanette and Jack Southworth, Michael and Arthur Hulse and himself.
Jeanette Southworth, Jack Southworth, Michael Hulse and Arthur Hulse assigned part of their
alleged interests in the estate to See. Jeanette and Jack are the surviving half siblings of decedent.
Michael and Arthur Hulse are the children of another half-sister of decedent who predeceased her.
The See contestants argued that the donor card should be denied admission into probate as a
holographic will because not all of its material provisions are in the handwriting of the decedent and
there is no showing of testamentary intent at the time she signed the card. NSAL argued that the
donor card reflected decedent’s testamentary intent and satisfied the statutory requirements for a
holographic will.
The trial court concluded that decedent’s handwritten statement on the donor card that “[m]y entire
estate is to be left to North Shore Animal League” substantially complies with all the Probate Code
requirements for a holographic will. The court viewed the preprinted parts of the donor card and the
$500,000 sum written in to be immaterial. The court interpreted the preprinted words stating that “I
am not taking action now, but my intention is ...” to mean that she did not want to immediately
transfer her funds to NSAL, but intended to bequeath them upon her death. The trial court
admitted the donor card to probate as the last will of the decedent. Jeanette and Jack Southworth,
and Francis V. See, appeal from the judgment.
Discussion
The facts are stipulated. “Where, as here, there is no conflict in the evidence, ”’the validity of the
holographic instrument must be determined entirely by reference to the applicable statutes and
principles of law. “ [Citations.]’ [Citation.]” (Estate of Black (1982) 30 Cal.3d 880, 883 [181 Cal.Rptr.
222, 641 P.2d 754].) Interpretation of statutes is a question of law and our fundamental task is to
ascertain the intent of the Legislature. (Walnut Creek Manor v. Fair Employment and Housing Com. (1991)
54 Cal.3d 245, 268 [284 Cal.Rptr. 718, 814 P.2d 704]).
539

Former Civil Code section 1277 stated that “[a] [h]olographic will is one that is entirely written,
dated and signed by the hand of the testator himself. It is subject to no other form, ... and need not be
witnessed.” (Italics added.) Section 1277 was strictly construed. (See Estate of Thorn (1920) 183 Cal.
512 [912 P. 19] [despite obvious testamentary intent, document denied probate because rubber
stamp was used to print name of parcel of real property within body of otherwise holographic will].)
In Estate of De Caccia (1928) 205 Cal. 719 [273 P. 552, 61 A.L.R. 393], our Supreme Court reversed
the order of a trial court which had denied probate to an otherwise handwritten will simply because
it was written under a printed letterhead stating, “Oakland, California.”
In 1931, the Legislature reenacted former Civil Code section 1277 as section 53 of the Probate Code
and added a third sentence to codify the rule announced in the De Caccia case. (See Estate of Towle
(1939) 14 Cal.2d 261, 269 [93 P.2d 555, 124 A.L.R. 624]). The sentence stated, “No address, date or
other matter written, printed or stamped upon the document, which is not incorporated in the
provisions which are in the handwriting of the decedent, shall be considered as any part of the will.”
In Estate of Black, supra, 30 Cal.3d at pages 882-883, the decedent wrote out her will on three
identical, commercially printed one-page will forms. In the blanks provided, she wrote her signature
and place of domicile, and on the third page she inserted the name and gender of her executor, the
date of the instrument and the city and state where she executed it. She either struck out or ignored
other printed language regarding residuary gifts, the appointment of an executor, attesting witnesses
and a testimonium clause.
“Using virtually all of the remaining space on each of the three pages, testatrix expressed in her own
handwriting a detailed testamentary disposition of her estate, including specific devises and legacies
to individuals and a charitable institution and a bequest of her residuary estate.” (Estate of Black,
supra, 30 Cal.3d at p. 883).
The trial court denied probate because the testator incorporated some of the printed language, even
though it concerned perfunctory procedural matters in the form will. Our Supreme Court reversed
because “none of the incorporated material is either material to the substance of the will or essential
to its validity as a testamentary disposition ....” (Estate of Black, supra, 30 Cal.3d at p. 882).
The Black court explained that “ ‘[t]he policy of the law is toward ”a construction favoring validity,
in determining whether a will has been executed in conformity with statutory requirements“
[citations].’ ” (Estate of Black, supra, 30 Cal.3d at p. 883). Moreover, we affirmed (Estate of Baker (1963)
59 Cal.2d 680, 685 [31 Cal.Rptr. 33, 381 P.2d 913]) “ ‘ ”the tendency of both the courts and the
Legislature ... toward greater liberality in accepting a writing as an holographic will ....“ ‘ (Ibid.) ‘
”Substantial compliance with the statute, and not absolute precision is all that is required.... “ ‘ [Citation.]” (Black,
supra at p. 883, italics in text.) Courts are to use common sense in evaluating whether a document
constitutes a holographic will. (Id., at pp. 885-886.)
The Black court recognized that “ ‘[i]f testators are to be encouraged by a statute like ours to draw
their own wills, the courts should not adopt, upon purely technical reasoning, a construction which
would result in invalidating such wills in half the cases.’ That sensible admonition is no less
appropriate today. [Citations.]” (Estate of Black, supra, 30 Cal.3d at p. 884). The law recognizes that
such wills are generally made by people without legal training. (Ibid.) The primary purpose of the
statutory holographic will provisions is to prevent fraud. Because counterfeiting another’s
540

handwriting “ ‘is exceedingly difficult,’ ” these statutes require the material provisions of holographic
wills to be in the testator’s handwriting. (Ibid.)
It was apparent to the Black court that the testator mistakenly believed she needed to use the printed
language on the commercially printed will form regarding procedural matters. Our Supreme Court
noted that “identification of the document as a will and herself as its maker ... are accomplished in
the clearly expressed words of the document written by her own hand.” (Estate of Black, supra, 30
Cal.3d at p. 885).
The court determined that the printed clause of the commercial will form referring to a personal
representative was “patently irrelevant” to the substance-the dispositive provisions of her will.
(Estate of Black, supra, 30 Cal.3d at p. 885). The court explained that the issue is not whether one
mechanically intends to include printed material, but whether one intends to include printed material
“ ‘because of its importance or materiality to the testamentary message.’ ” (Id., at pp. 885-886, italics added.)
The inclusion of such printed procedural details does not invalidate an otherwise valid will. (Id., at
pp. 886-887.)
Whether a document should be admitted to probate as a holographic will depends on proof of its
authorship and authenticity, and whether the words establish that it was intended to be the author’s
last will and testament at the time she wrote it. (Estate of Black, supra, 30 Cal.3d at p. 888).
Our high court explained that four questions are pertinent in evaluating whether a document should
be invalidated as a holographic will due to printed language in the document: “Was the particular
provision relevant to the substance of the will? Was it essential to the will’s validity? Did the testator
intend to incorporate the provision? Would invalidation of the holograph defeat the testator’s
intent?” (Estate of Black, supra, 30 Cal.3d at p. 885).
Accordingly, in 1983, the year after our Supreme Court decided Black, our Legislature replaced
Probate Code section 53 with Probate Code section 6111. Section 6111 provides, in pertinent part,
that “(a) A will ... is valid as a holographic will, whether or not witnessed, if the signature and the
material provisions are in the handwriting of the testator.” In 1990, the Legislature added
subdivision (c) which provides that “Any statement of testamentary intent contained in a
holographic will may be set forth either in the testator’s own handwriting or as part of a
commercially printed form will.”
Probate Code section 6111.5 states that “[e]xtrinsic evidence is admissible to determine whether a
document constitutes a will pursuant to Section 6110 [concerning formal wills] or 6111, or to
determine the meaning of a will or a portion of a will if the meaning is unclear.”
There is no question that the handwriting on the document at issue is that of Dorothy Southworth,
and that she signed and dated it. Unlike Black, however, the document is not a commercially printed
will form. It is a donor card for a charity. It was not drafted to serve as a will. The card provides the
option of informing NSAL that the donor has or intends to instruct one’s attorney to change his or
her will.
Furthermore, the printed language Southworth incorporated from the donor card does not evince
her present testamentary intent. Instead of striking the material printed words which state “I am not
taking action now, but my intention is,” she chose to incorporate those words with her handwritten
541

statement, “My entire estate is to be left to North Shore Animal League.” The material printed
language together with her handwriting evince a future intent; not present testamentary intent.
Although other extrinsic evidence, such as her letter to NSAL of September 4, 1987, and the
supplemental Neptune form she signed on October 20, 1989, shows that Southworth desired to
leave her estate to NSAL, neither the donor card at issue nor the handwriting on it substantially
complies with Probate Code requirements for holographic wills. Although courts may consider
statements made before and after a holographic will is made and the surrounding circumstances,
evidence of present testamentary intent provided by the instrument at issue is paramount. (Estate of Wong (1995) 40
Cal.App.4th 1198, 1204-1205 [47 Cal.Rptr.2d 707]; Estate of Archer (1987) 193 Cal.App.3d 238, 244
[239 Cal.Rptr. 137]; Estate of French (1964) 225 Cal.App.2d 9, 15-16 [36 Cal.Rptr. 908]; Prob. Code.
§§ 6111, subd. (c), 6111.5.)
Here, Southworth incorporated printed language stating that she was not taking any action when she
executed it. It does not establish her testamentary intent at the time she executed it. It only states her
intention to make a will in the future.
The judgment is reversed. The parties are to bear their own costs.
Problems
1. David wrote the following letter to his girlfriend: “The last three months with you have been the
best of my life. If I died today, I would want you to have everything that I own. I love you.” David
signed the letter “Your Heart.” After he finished the letter, David committed suicide. Is this a valid
holographic will?
2. Vera sent a letter to her granddaughter Phyllis. The letter stated: “Dear Phyllis, Granny loves you
very much. The doctor says that this leukemia will probably kill me. I know that you need help to
finish college. I plan to go to the attorney next week to draft a will, so I can leave you $100,000. I
will see you at Christmas.” Vera signed the letter, “Love Granny.” Vera died the day after she mailed
the letter. Is this a valid holographic will?
3. Alma wrote the following on a note pad: “To Whom It May Concern, I am feeling really sad. I
just celebrated my 70th birthday and it is time to put my affairs in order. I do not have time or money
to get a lawyer to make a will for me. Darlene told me that I could write a will myself. My estate
consists of about $12,000 in cash and a mortgage-free house that is worth $230, 000. I would like to
leave the house to my only child, Darrell. The $12,000 should be given to my church, Friendship
Fellowship Church.” Alma signed the note. Is this a valid holographic will?
4. Paula was found dead in her bed. The following note was found on her night stand. “Peaches,
ground beef, rice, apples, and light bulbs. Life is too short. When I go, I want my daughter Maxine
to have my house. She has been such a good daughter. My daughter, Liza, should only get $1.00. All
she wants to do is drink and gamble. Not with my money. The rest of my property and money
should be split between my mother, Rosa and my sister, Clara. They need the money more than my
children. Something to think about.” Paula signed the note. Is this a valid holographic will?

542

12.2.2 In the Testator’s Handwriting

Matter of Estate of Hand, 684 A.2d 521 (N.J. 1996)
GOTTLIEB, P.J.Ch.
This case involves a challenge to a purported holographic will. It is before me upon the return of an
order to show cause seeking the will’s admission to probate. The primary issue is whether a
holograph can be hand printed or must be in cursive to be in the author’s handwriting.
Jeffrey A. Hand died on December 25, 1995. Decedent’s brother Norman, the plaintiff, claims that
decedent wrote out a holographic will on September 17, 1995. The will is actually dated September
17, 1996, an obvious error. The lined but otherwise originally blank sheet of paper tendered as that
holographic will contains the following:
9/17/96
I JEFFREY HAND LEAVE TO MY SISTERS SHARON & SUE MY house & BANK ACC.
NORMAN & ADAM MY GUNS & TOOL ADAM GETS MY BOAT NORMAN GETS MY
TRUCK
Decedent executed no formal will. When he died, he was survived by his sisters Sharon and Susan,
his brothers Norman and Adam and his widow Marie, the defendant.
For several years before his death, decedent had been ill with kidney disease, diabetes and other
medical problems. On September 11, 1995, Norman and Adam visited decedent. They discussed
distribution of decedent’s assets to his family. Norman and Adam maintain that decedent began
writing on a sheet of paper and declared to his brothers that he was writing his will. Adam and Susan
claim that on September 17, 1995, decedent handed the sheet of paper to Susan, told her it was his
will and directed her to retain it. Susan contends that she noted the mistake in the year of the
document’s date and that she and decedent “joked about this obvious mistake.”
Norman offers the writing for probate as a holographic will. He also contends that decedent and
Marie had been separated when decedent died. Norman seeks to be appointed as administrator cum
testamento annexo. Marie opposes the probate of the alleged holographic will. In the alternative, if the
will is admitted into probate, Marie requests recognition of her rights to an elective share of the
estate pursuant to N.J.S.A. 3B:8-1 to -19 since she denies any marital separation.
Marie asserts that (a) the writing is not a holograph since it is hand printed and not in cursive; (b) the
paper does not contain decedent’s signature; and (c) the markings on the sheet of paper were not
placed there by decedent.
Norman and Adam, on the one hand, and Marie, on the other, have submitted conflicting affidavits
as to whether decedent and Marie were separated when decedent died.
N.J.S.A. 3B:3-3 provides:

543

A will which does not comply with N.J.S.A. 3B:302 is valid as a holographic will, whether or not
witnessed, if the signature and material provisions are in the handwriting of the testator.
What is one’s handwriting? Must it be in cursive or may it be hand printed?
At a minimum “handwriting” encompasses a person placing markings on paper or other writing
surface using an implement which inscribes those markings in a manner unique to or characteristic
of the writer. Other writing surfaces include cardboard, chalkboard and other objects capable of
retaining markings for an extended period of time. The implement may be a pencil, In re Craddock’s
Estate, 179 Mont. 74, 586 P.2d 292 (1978); Appeal of Knox, 131 Pa. 220, 18 A. 1021 (1890), a felt-tip
pen or an ink pen. Indeed, it may be any object that causes a lasting inscription, such as charcoal, a
crayon or a lipstick. Different portions may be in different ink. In re Moody’s Estate, 118 Cal.App.2d
300, 257 P.2d 709, 716 (1953). However, it cannot be a typewriter or other mechanism incapable of
unique and individual inscription. Dean v. Dickey, 225 S.W.2d 999 (Tex.Civ.App. 1949); Scott v.
Gastright, 305 Ky. 340, 204 S.W. 2d 367, 173 A.L.R. 565, 567 (1947); In re Bauer’s Estate, 5 Wash.2d
165, 105 P.2d 11 (1940); Wolf v. Gall, 176 Cal. 787, 169 P.1017, 1019 (1917), as to a typewriter; In re
Thorn’s Estate, 183 Cal. 512, 192 P. 19 (1920), as to a rubber stamp; In re Johnson’s Estate, 129 Ariz.
307, 630 P.2d 1039 Ct.App.1981); In re Wolcott’s Estate, 54 Utah 165, 180 P.169, 4 A.L.R. 727 (1919),
as to the filling in of blank spaces in preexisting printed matter.
Handwriting is required under the statute for three reasons. The first is to decrease the opportunity
for fraud. Presumably, there will be sufficient other samples of a decedent’s handwriting that a
forged holographic will can be identified and rejected. Block printing is as amenable to that
detection and analysis process as cursive writing. United States v. Mangan, 575 F.2d 32, 41-42 (2d Cir.
1978, cert. denied, 439 U.S. 931, 99 S.Ct. 320, 58 L.Ed.2s 324 (1978); James V.P. Conway, The
Identification of Handprinting, 45 Journal of Criminal Law, Criminology and Police Science 605 (1955).
The second reason is to ensure that a testator was aware that he or she was making, and intended to
make, testamentary dispositions. In re Smith’s Will, 108 N.J. 257, 262, 528 A.2d 918 (1987). Inherently
the process of creating and executing a holographic will lacks the ceremony and third-party inquiry
attendant to a formal will execution format. That format is designed to impress on a testator the
momentous consequences he or she is generating. By actually having to write out the specifics of
what is wanted, as opposed to the less arduous process of merely filling in some blank spaces on a
preprinted form, we believe that the significance of what the testator is doing permeates his or her
understanding.
The third reason why handwriting-as opposed to filling in blanks or checking off provisions on a
preprinted form-is required by N.J.S.A. 3B:3-3 is to make more certain that the testator expressed
only and exactly what he or she intended. We trust that the bother of having to write out the will’s
directives shall result in a reflection on and verbalization precisely reciting what the testator meant to
occur.
None of these reasons for requiring handwriting is adversely implicated by the use of hand printing
as distinguished from cursive. The authenticity of printing can be tested as can cursive writing. It is
evident that the use of printing or cursive equally address the goals of reassuring that the testator’s
state of mind was one of knowing what he or she was doing and of guaranteeing that the testator
was expressing what he or she intended.
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In Alexander’s Estate v. Hatcher, 193 Miss. 369, 9 So.2d 791, 792 (1942), a hand printed holographic
will was challenged. It was printed with a lead pencil. The claimed testator was able to write in
cursive. The question was whether the decedent had written the proposed will. The decision was
that he had not. That the will was printed, as opposed to cursively written, was not a prima facie basis
for its rejection.
Accordingly, I conclude that the use of hand printing or block lettering not only satisfies the
definition of handwriting but also is consistent with the goals of N.J.S.A. 3B:3-3 in requiring
handwriting.
Must a signature be in cursive or may it also be printed? N.J.S.A. 3B:3-3 requires the signature on a
holographic will to be in the testator’s handwriting. As defined in Webster’s New World Collegiate
Dictionary 1079 (1973), a “signature” is the name of a person written with that person’s own hand.
Cf., Matthews v. Deane, 201 N.J.Super. 583, 584, 493 A.2d 632 (Ch.Div.1984)(which approved printed
signatures on a recall petition, but defined “signature” as “that which an individual intends to be his
signature.”) But see, In re Waldick Aero-Space Devices, Inc., 71 B.R. 932, 936 (D.N.J. 1987), which
permitted a typewritten signature on a security agreement since it was consistent with existing
commercial practices.
By definition a signature is not necessarily inscribed in cursive. It only must be the writer’s name in
the writer’s handwriting. It need have no particular “cast or form.” In re Hyland’s Will, 27 N.Y.S. 961,
963 (Surrog.Ct.1892). For the purpose of N.J.S.A. 3B:3-3 a signature may be in cursive or in block
lettering, as long as it is the writer’s name and in the writer’s hand.
Marie asserts that, since the claimed will does not contain the testator’s signature at the end of the
writing, it is invalid. However, if decedent printed his name at the beginning of the document and
intended it to be his signature, it will suffice. In re Siegel’s Estate, 214 N.J.Super. 586, 592, 520 A.2d
798 (App. Div.1987). This, of course, assumes that the purported holographic will was written by
decedent. This assumption is at issue because of the third of the widow’s challenges to admitting the
holographic will to probate.
Marie posits the unlikelihood that decedent wrote the claimed will. Her stance is based on more than
mere conjecture. She claims that decedent always wrote in cursive when he wrote out something or
signed his name. She has provided copies of numerous documents in support of this claim.
Additionally, when signing his name, decedent invariably included his middle initial. The signature
on the holographic will lacks any middle initial. The genuineness of the handwriting constituting a
holographic will is a sine qua non for its admissibility into probate. A bona fide factual dispute exists
as to that genuineness. I cannot now rule on the will’s admission into probate. A resolution of that
factual dispute and whether decedent and Marie were living separately from one another will be
determined at a trial to be scheduled in the near future.
Finally, it is not fatal to the will’s acceptance that the date on it is obviously incorrect. The general
rule is that an error in the dating will not vitiate a holographic will. (citations omitted) Here, the
misstatement of the year will not nullify the will.

545

12.2.3 Material Portions

Matter of Estate of Krueger, 529 N.W.2d 151 (N.D. 1995)
LEVINE, Justice.
Fred Bieber appeals from a county court judgment, entered in a formal testacy proceeding, denying
probate of the purported holographic will of Diana C. Krueger. We affirm.
Diana C. Krueger died on May 3, 1992. Her heirs are four nephews, Fred Bieber, William Bieber,
Rhinhold Bieber, and Daniel Bieber. During her lifetime, Krueger executed two wills: a holographic
will, executed on January 8, 1979, and a formally attested will, drafted by an attorney, and executed
on March 9, 1990. The second will (“1990 will”) contained a clause expressly revoking all previous
wills, including the holographic will. The 1990 will was not located after Krueger’s death.
Following Krueger’s death, Fred Bieber petitioned the county court for formal probate of the
holographic will and for appointment as personal representative of Krueger’s estate. His brothers,
William, Rhinhold, and Daniel Bieber [collectively “William”] objected to the probate of the will.
They contended, inter alia, that a material provision of the will had been altered by someone other
than the testator, invalidating the will under NDCC § 30.1-08-03. William also argued that Krueger
did not reexecute the altered will and, once altered, it could not be revived.
The original holographic will contained a specific bequest of Krueger’s “Books and Diploma” to her
niece, Doris. However, at the time of probate, Doris’s name had been crossed out and the phrase,
“Fred Bieber daughters,” inserted in its place. At the probate hearing, Fred testified that on March
14th or 15th of 1990, shortly after the execution of the 1990 will, he and his wife accompanied
Krueger home from the hospital to Krueger’s farm in Regent, North Dakota. After supper, Krueger
asked him to retrieve a box from a dining room closet. As he and Krueger sat in her bedroom,
Krueger took an envelope, containing the holographic will, out of the box and said, “Look, we still
have our will.” Then, Krueger read the contents of the two-page document to him “word for word.”
Fred testified that he could see cross-outs on the first page of the document. After she finished
reading the will, Fred said that “Diane crossed [Doris’s] name out” and, at Krueger’s request, he
wrote in its place, “Fred Bieber daughters,” while Krueger held the document.
The county court found that “[e]ven if Fred Bieber’s testimony is true, the holographic will as
altered no longer complies with NDCC § 30.1-08-03. A material provision of the holographic will is
not in the handwriting of the testator after the alteration.” The county court also found that Krueger
did not reexecute the altered holographic will and absent reexecution, the altered will could not be
reviewed under NDCC § 30.1-08-09. On appeal, Fred contends that the trial court erred in
concluding that the bequest of Krueger’s books and diploma to a specific legatee is a material
provision of the holographic will and that the trial court’s finding that Krueger did not reexecute her
holographic will is clearly erroneous.
I. Material Provision

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The right to make a will disposing of one’s property is statutory and unless a testator complies with
the prescribed statutory formalities, the will is invalid. In re Lyon’s Estate, 79 N.D. 595, 58 N.w.2d 845
(1953); Montague v. Street, 59 N.D. 618, 231 N.W. 728 (1930). Probate proceedings in North Dakota
are governed by the Uniform Probate Code (UPC), codified at Title 30.1, NDCC. See, e.g., Matter of
Estate of Ketterling, 515 N.W.2d 158 (N.D. 1994).
A holographic will is valid if “the signature and the material provisions of the will are in the
handwriting of the testator.” NDCC § 30.1-08-03. Fred contends that his handwritten insertion,
“Fred Bieber daughters,” is not a material provision because of the insignificant value of the books
and diploma in light of the total value of the estate. We cannot agree.
The interpretation and application of a statute is a question of law fully reviewable on appeal. Olson v.
N.D. Dept. of Transp. Director, 523 N.W.2d 258 (N.D. 1994). Neither the UPC, nor the general
provisions of the North Dakota Century Code, define the term “material provisions.” We construe
words undefined in the Code by attributing to them their “plain, ordinary, and commonly
understood meaning.” Stewart v. Ryan, 520 N.W.2d 39, 45 (N.D. 1994). We construe uniform laws
and model acts in the same manner as other jurisdictions to provide consistency and uniformity in
the law. Zuger v. N.D. Ins. Guaranty Ass’n, 494 N.W.2d 135 (N.D. 1992). Our consideration of other
states’ similar statutes and court decisions interpreting those statutes is relevant and appropriate. J.P.
Furlong Enterprises, Inc. v. Sun Exploration and Production Co., 423 N.W. 2d 130 (N.D. 1988).
Generally, “material” means “relevant,” “consequential,” or “having a certain or probable bearing ...
on the effect of an instrument.” Webster’s Third New Int’l Dictionary, 1392 (1971). “Material
provisions” are those portions of a holographic will which express the testamentary and donative
intent of the testator. Matter of Estate of Muder, 156 Ariz. 326, 751 P.2d 986 (Ariz.App. 1987). Specific
bequests to particular legatees indicate testamentary intent and are uniformly held to be material
provisions of holographic wills which must be in the handwriting of the testator. Estate of Johnson,
129 Ariz. 307, 630 P.2d 1039 (App.1981) [words are material if essential to the testamentary
disposition]; In Re Estate of Cunningham, 198 N.J.Super. 484, 487 A.2d 777, 778-779 (L.1984)
[describing the material provisions of the will as “instructions concerning the donation of [the
testator’s] bodily remains, specific bequests and the devise and bequest of the remainder of [the]
estate”]; Matter of Estate of Fitzgerald, 738 P.2d 236 (Utah App. 1987) [admitting holographic will to
probate because material provisions were in handwriting of testator]. The Drafters’ Comments to
UPC § 2-503, from which our holographic wills statute is derived, supports this interpretation:
“By requiring only the ‘material provisions’ to be in the testator’s handwriting ..., a holographic
will may be valid, even though immaterial parts such as date or introductory wording be printed or
stamped. A valid holograph might even be executed on some printed will forms if the printed
portion could be eliminated and the handwritten portion could evidence the testator’s will.”
Comment UPC § 2-503.. Uniform Probate Code Practice Manual 2d, v. 1 (1977).
We construe the material provisions requirement of NDCC § 30.1-08-03 to mean that those
provisions which express donative and testamentary intent must be in the handwriting of the
testator.
The bequest of Krueger’s books and diploma to Doris reflects Krueger’s donative intent. Therefore,
the alteration made by Fred resulted in a material provision of Krueger’s will being in his handwriting
and not in Krueger’s. Insertion of the designation, “Fred Bieber daughters,” as legatees is relevant
547

and consequential, and it changes the effect of the instrument by altering the disposition of assets
under the will. Compare Bell v. Timmins, 190 Va. 648, 58 S.E.2d 55 (1950)[deleting confusing language
or inserting corrections in punctuation and spelling, although not done by the testator, did not alter
the testamentary dispositions and hence were not material].
Fred cautions that a “strict construction” of NDCC § 30.1-08-03 would elevate form over substance
and defeat Krueger’s testamentary intent. He urges us to liberally construe the provisions of the
UPC to effectuate that intent. While we adhere to the credo of liberal construction of a will, once it
is admitted to probate, in order to effectuate the intent of the testator, see Matter of Klein, 434 N.W.2d
560 (N.D. 1989),this case involves the threshold question of the validity of the will under an
unambiguous statute.
The requirement under NDCC § 30.1-08-03, that the material provisions of a holographic will be in
the testator’s handwriting, is designed to ensure the authenticity of holographs, while still permitting
lay persons to prepare their own wills without the expense and formality associated with attested
wills. See Matter of Estate of Erickson, 806 P.2d 1186 (Utah 1991); Estate of Black, 30 Cal.3d 880, 181
Cal.Rptr. 222, 641 P.2d 754 (1982). Section 30.1-08-03, NDCC, provides a straightforward means of
ensuring that a will is truly the testator’s, recognizing the difficulty of forging an entire handwritten
document. Black, 181 Cal.Rptr. 222, 641 P.2d 754. We share the county court’s apprehension that:
“[i]f the holographic will in this case was admitted to probate with all of the
cross-outs and writing on it, a precedent would be set which could open the door
to forged and fraudulent documents being admitted as a decedent’s will.”
We conclude that a material provision of the will was not in Krueger’s handwriting, and the trial
court did not err in denying probate of the invalid will.
12.2.4 Preprinted Forms
Wills should carry out the testator’s intent. The attestation process exists to ensure that the
will is executed in accordance with the wishes of the testator. States that recognize holographic wills
attempt to ensure that the testator is the maker of the will by requiring that the material portions of
the will and the signature be in the testator’s handwriting. Courts have addressed the preprinted
form problem by ignoring the printed portions of the document and only reading the parts that are
in the testator’s handwriting. If the handwritten portions standing alone do not clearly show the
testator’s intentions, courts usually refuse to allow the will to be probated.

In re Will of Ferree, 848 A.2d 81 (N.J. 2003)
FISHER, P.J.Ch.
This case raises an issue of first impression in this State: may the filling in of blanks in a pre-printed
form result in the creation of a valid holographic will? Because accepted legal principles compel the
ignoring of all pre-printed language in an alleged holograph, because vast portions of the material
provisions are not handwritten, and because the document is unintelligible without resort to the preprinted words, the proffered document may not be admitted to probate.
548

I
The facts—all of which are undisputed—may be simply and briefly stated. Ronald Ferree
(“decedent”) died, apparently by his own hand, on July 13, 2002. Near his body was a document
purporting to be his Last Will and Testament. The parties acknowledge that decedent executed this
document, the handwritten portions were written by decedent, and decedent’s signature was
witnessed by only one person. The parties also agree that there is no later or prior will and, if the
document in question is not admitted to probate, decedent’s estate will pass pursuant to the laws of
intestacy.
Plaintiff Charles Creel (“plaintiff”) is a named beneficiary in the document in question, but not an
heir at law. Accordingly, plaintiff will not be entitled to share in decedent’s estate if the document is
not admitted to probate.
II
In the United States, the right to make a will is not viewed as a “natural right” and no constitutional
protection attaches. Girard Trust Co. v. Schmitz, 129 N.J.Eq. 444, 453, 20 A.2d 21 (Ch.Ct.1941);
Renwick v. Martin, 126 N.J.Eq. 564, 568, 10 A.2d 293, 297 (Prerog.Ct. 1939); 1 Page on Wills (Bowe–
Parker revision, 1960) § 3.1. As a result, the right to transfer property upon death, and the manner
for effectively making such a transfer, is subject to legislative control, as our Supreme Court has
recognized:
The right of a citizen to dispose of his property by will has always been deemed a legislative
creation. The state may regulate the manner and terms upon which his property, both real and
personal, within its jurisdiction may be transmitted by will or by inheritance. It may prescribe who
shall take, and who shall not be capable of taking, the property. And the privilege of transmission
of property by will or by intestacy may be made subject to such terms as in the judgment of the
state will serve the public good.
[United States v. Kingsley, 41 N.J. 75, 79, 194 A.2d 735, 737 (1963).
Accordingly, in determining what should be admitted to probate, the court is bound to consider the
Legislature’s carefully-crafted parameters.
In regulating the manner in which citizens may dispose of property upon death, the Legislature has
concluded that “every will shall be in writing, signed by the testator or in his name by some other
person in his presence and at his direction, and shall be signed by at least two persons each of whom
witnessed either the signing or the testator’s acknowledgment of the signature or of the will.”
N.J.S.A. 3B:3-2. The parties agree that the document offered for probate fails to comply with the
formalities required by N.J.S.A. 3B:3-2 because only one person executed the document as a witness.
The Legislature has recognized and provided for one exception to the requirements of N.J.S.A.
3B:3-2. That is, a holographic will may be admitted to probate. N.J.S.A. 3B:3-3. Accordingly, it must
be determined whether this document is a valid holographic will; if not, then the complaint should
be dismissed and decedent’s property distributed by way of the laws of intestacy.
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III
The Statute of Wills exists, in the words of the late Judge Clapp, one of this State’s leading
authorities in the field, “to forestall frauds by the living upon the dead.” In re Taylor’s Estate, 28
N.J.Super. 220, 226, 100 A.2d 346, 349 (App.Div.1953). The terms of the statute permitting
holographic wills endeavor to be consistent with that approach. While the apparent purpose in
allowing holographic wills was to provide lay persons with the ability to make their own wills
without the expense of legal assistance, see Matter of Estate of Krueger, 529 N.W.2d 151, 154
(N.D.1995); Matter of Estate of Erickson, 806 P.2d 1186, 1188 (Utah 1991), the requirement that the
material provisions be in the testator’s handwriting assumes that such action not only brings into
contemplation the seriousness of the undertaking but also renders more difficult and unlikely the
possibility of forgery. See In re Towle’s Estate, 14 Cal.2d 261, 93 P.2d 555, 561 (1939)(The handwriting
requirement is an “adequate guaranty of its genuineness.”); 1 Page on Wills, supra, § 1.3 (Some states
permit holographic wills to be probated “[b]ecause of the additional guaranty of trustworthiness that
is thought to exist in the complete use of handwriting.”). Holographs become sufficient substitutes
for more formally-witnessed wills in that there is the equal assurance, in both instances, that such
instruments are not fraudulent, constitute solemn undertakings, and employ the words actually
intended by their authors.
Our Legislature, in apparent contemplation that individuals might seek to avoid the cost of legal
counsel, has permitted a less costly device to be utilized by allowing holographic wills to be
probated. There are no other options; indeed, the idea that a will may be created in some other or
less reliable way than required by the statute constitutes a prodigious leap from the considered
influence of many centuries of Anglo–American law. Since the document in question is not
sufficiently witnessed pursuant to N.J.S.A. 3B:3-2, it must either be found to be a holographic will or
decedent must be deemed to have died intestate; there are no other alternatives.
IV
N.J.S.A. 3B:3-3 provides that a will which fails to comply with N.J.S.A. 3B:3-2 “is valid as a
holographic will, whether or not witnessed, if the signature and material provisions are in the
handwriting of the testator.” Since the signature affixed on the document is concededly decedent’s,
it remains to be decided whether “the material provisions are in the handwriting of the testator.”
It is readily apparent, and not disputed, that the paragraphs of this document are either entirely preprinted or a mixture of both pre-printed material and decedent’s handwriting. The pre-printed
material, in fact, so predominates that no single paragraph is entirely handwritten. Accordingly, it
must be determined whether, as a matter of law, N.J.S.A. 3B:3-3 may be loosely applied to
encompass a document containing material provisions which are both handwritten and pre-printed.
Courts have dealt with this question in the same or similar settings, with mixed results. For example,
various decisions have been rendered concerning the significance of both handwriting and the
making of obliterations on a photocopy of an earlier will, printing rather than cursive writing, the
use of a typewriter or other similar device, the use of ink or pencil, and, as here, filling in the blanks
of a pre-printed will form. (citations omitted). Other interesting problems have arisen over the years.
Some of these situations have proven particularly nettlesome in those jurisdictions where the statute
permitting holographic wills requires that the entire document be in the handwriting of the decedent.
550

For example, in Estate of Baker, 59 Cal.2d 688, 31 Cal.Rptr. 33, 381 P.2d 913 (1963), the testator
wrote his will on paper embossed at the top with “AAA, Approved, Hotel Covell” (which testator
drew lines through) and “Modesto, California” (which was not stricken). The court rejected the
argument that the document could not be admitted to probate, concluding that the printed
information was not material to the testamentary provisions of the document. Accord In re Schuh’s
Estate, 17 Ariz.App. 172, 496 P.2d 598 (1972)(handwritten material on stationery containing the
following pre-printed material: “Bring’s Funeral Home” and “My last will and testament”); In re
Parson’s Will, 207 N.C. 584, 178 S.E. 78 (1935) (handwritten material on paper with the words “In
the name of God, Amen” pre-printed at the top). The same result was reached in cases where
testators wrote their wills on stationery bearing their own or their business’s names and addresses.
See Succession of Heinemann, 172 La. 1057, 136 So. 51 (1931); In re Lowrance’s Will, 199 N.C. 782, 155
D.E. 876 (1930); In re Bennett’s Estate, 324 P.2d 862 (Okla. 1958).
Additional difficulties have been encountered where the testator did not fully date the document in
his own handwriting but, rather, incorporated a pre-printed portion of a date. For example, in one
case a testator used stationery with its location and a partial date already embossed (“Stockton, Calif.
_____ 19___”). The testator, in his own hand, wrote “May 3” and “38” before and after the preprinted “19.” Notwithstanding California’s statutory requirement that the document be dated in the
testator’s own handwriting, the court observed a growing tendency toward a liberal approach and
admitted the writing to probate. (citations omitted); but see, In re Noyes’ Estate, 40 Mont. 190, 105 P.
1017 (1909), and earlier California cases which took a more literal approach toward the governing
statute than Durlewanger.
These cases, and others, reveal that where a statute requires the entire document, including its date, to
be in the handwriting of the testator, courts have, at times, managed to permit the probating of
documents that literally do not conform to that direction. In short, these other jurisdictions appear
to have adopted a standard which permits probate so long as those provisions which are material are
in the handwriting of the testator. Thus, through this case-by-case process, most of the jurisdictions
governed by statutes requiring that the entire document be in the testator’s handwriting have
gradually moved toward applying the “material provisions” standard expressly adopted by
legislatures in jurisdictions such as our own.
V
The cases discussed above, which dealt with “letterhead wills” or the partial use of a pre-printed
date, appear to have followed two different philosophical approaches. The first suggests some
consideration of the testator’s probable intent with regard to the non-holographic material; the other
approach—the surplusage theory—has been described by the leading treatise as follows:
the surplusage test [requires that] the non-holographic material [be] stricken and the remainder of
the instrument admitted to probate if the remaining provisions made sense standing alone. This is
done even though the stricken non-holographic material was clearly intended to have been made
part of the will as is the case where the will is made by filling in the blanks of a printed will form.
[2 Page on Wills, supra, § 20.5.]
The surplusage theory, however, has proven easier to describe than to consistently apply. That is,
with regard to the “letterhead” and “date” cases briefly reviewed above, the disregarding of nonholographic material has had less impact upon the gist or substance of the instrument than on the
551

respect due the applicable statute (which required the entire document and its date to be in the
handwriting of the decedent).
Here, the question does not concern extraneous material found on hotel stationery or the use of a
pre-printed “19” which the testator incorporated to form the year of the making of his holographic
will. The more difficult problem, encountered here and by courts in other cases with mixed results,
is how to deal with a document containing substantive provisions which are partially pre-printed and
partially handwritten.
In approaching this vexing problem, it is initially observed that our Legislature’s adoption of
N.J.S.A. 3B:3-3 undoubtedly suggests the employment of this surplusage standard. N.J.S.A. 3B:3-3
was based upon the then-existing version of Uniform Probate Code § 2-503. The comment to this
section of the Uniform Probate Code (UPC), in fact, describes the present situation and the
application of the surplusage theory:
This section enables a testator to write his own will in his handwriting. There need be no
witnesses. The only requirement is that the signature and the material provisions of the will be in
the testator’s handwriting, (rather than requiring, as some existing statutes do, that the will be
“entirely” in the testator’s handwriting) a holograph may be valid even though immaterial parts
such as date or introductory words be printed or stamped. A valid holograph might even be executed on
some printed will forms if the printed portion could be eliminated and the handwriting portion could evidence the
testator’s will.
[emphasis added.]
Since our Legislature adopted the holographic will standard contained in the UPC, it must be
assumed that it intended to have N.J.S.A. 3B:3-3 applied as the UPC’s drafters intended.
Accordingly, it logically follows that the surplusage theory should be applied.
That is, while our statute does not disqualify a holograph simply because portions are not in the
testator’s handwriting, it does require that only the testator’s handwritten words be considered and
that those words must be intelligible without resort to words not in the testator’s handwriting. All
other provisions, whether pre-printed, typed or written by others, are deemed surplusage and must
be ignored.
In this case, an elimination of the pre-printed words renders the offered document meaningless. If
all pre-printed material is removed, the document only states:
Ronald D. Ferree Ronald D. Ferree 40 Waterman Ave, Rumson N.J. 07760
There are no other rf rf rf Micheal Ferree (Brother) 2981 Heather Court, Jensen
Beach, Fla 34957 Barbra Ferree 2981 Heather Ct Court, Jensen Beach, Fla 34957
Charles Creel (my IRA at Smith Barney) 49 Parker Ave, Fair Haven NJ Micheal
Ferree Barbra Ferree 21st October 99 Ronald D. Ferree Ronald D. Ferree
As can readily be seen, the handwritten portions of this document—standing alone—mean nothing.
The pre-printed verbs, the pre-printed punctuation, the pre-printed directions and the pre-printed
testamentary language are essential if this document is to have any meaning. Material language,
necessary to provide meaning and necessary to reveal the writer’s testamentary intent, is not in
decedent’s handwriting. As such, this document cannot be considered a holographic will. This court
552

can come to no other conclusion without doing great violence to the meaning of N.J.S.A. 3B:3-3.
While courts of other jurisdictions have found meaning despite the ignoring of pre-printed language
in other documents, the document at hand simply does not permit any rationale interpretation when
its pre-printed portions are disregarded. Any attempt to wring meaning inevitably requires resort to
the pre-printed portions—a wholly impermissible approach.
Our Legislature has adopted procedures governing the manner in which its citizens may distribute
property upon death. This court is bound to enforce those laws. If the material provisions of the
document are in the handwriting of the testator than the document may be admitted to probate as a
holographic will; if not, then there must be two witnesses to the testator’s execution of the
document. Here, neither of these choices has been presented. If it makes sense for a document such
as that in question to be admitted to probate, it is up to the Legislature to say so.
DISCUSSION ON SUBSTANTIAL COMPLIANCE IN VI IS OMITTED
VII
For these reasons, the document which plaintiff would have admitted to probate does not qualify as
a holographic will. The complaint will be dismissed.
APPENDIX

12.3

Nuncupative Wills

A few states permit the probate of oral wills referred to as nuncupative wills. These wills are
only valid for the disposition of personal property that is worth less than a specified amount.
Nuncupative wills function as temporary wills for emergency situations. The circumstances must
prevent the testator from being able to execute a traditional will. In order to be probated, the wills
have to be reduced to writing.

T. C. A. § 32-1-106. Nuncupative wills (Tenn.)
(a) A nuncupative will may be made only by a person in imminent peril of death, whether from
illness or otherwise, and shall be valid only if the testator died as a result of the impending peril, and
must be:
(1) Declared to be the testator’s will by the testator before two (2) disinterested witnesses;
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(2) Reduced to writing by or under the direction of one (1) of the witnesses within thirty (30) days
after such declaration; and
(3) Submitted for probate within six (6) months after the death of the testator.
(b) The nuncupative will may dispose of personal property only and to an aggregate value not
exceeding one thousand dollars ($1,000), except that in the case of persons in active military, air or
naval service in time of war the aggregate amount may be ten thousand dollars ($10,000).
(c) A nuncupative will neither revokes nor changes an existing written will.
Problems
(Answer the following questions relying on the above statute)
1. Jacob was admitted to the hospital for open heart surgery. Jacob was afraid that he would not
survive the surgery. Jacob’s three friends, Carl, Lawrence and Maurice, sat with him while he was
waiting to go into surgery. Jacob said, “I want to leave $20,000 to my sister, Ellen, so that she can
finish nursing school. I want my brother, Keith to get the rest of my property. I don’t want my other
sisters, Lisa and Mona to get anything from me.” Carl, Lawrence and Maurice agreed to make sure
that, if Jacob died, his wishes would be carried out. While Jacob was in surgery, Carl type up the
conversation that he, Lawrence and Maurice had with Jacob. Lawrence and Maurice signed the
typed statement and agreed that it accurately reflected Jacob’s wishes. During surgery, Jacob had a
heart attack and died. Carl submitted the typed statement to be probate as Jacob’s will. Lisa and
Mona challenged the validity of the will. Is this a valid nuncupative will?
2. One of the tires blew out on Sharon’s tractor. When she tried to repair the tire, the tractor rolled
over and she got trap under it. After Sharon had been trapped for about two hours, her friends,
Evans and Jane discovered her. They tried unsuccessfully to get Sharon from under the track.
Sharon said, “I’m not gonna make it. I need to get my affairs in order.” Evans and Jane tried to
convince Sharon not to give up. But, Sharon said, “I want to leave my house to my cousin Joe and
everything else to my Aunt Tabby.” Sharon died a few hours later. Evans wrote out Sharon’s will
and submitted it for probate. Is this a valid nuncupative will?
3. Norman was a private in the United States army stationed in Iraq. One day Norman was shot in
the chest by a sniper while he and five other men were on patrol. As he lay on the ground bleeding,
Norman told his friend Mitchell, “I want my friend, Nina, to have the $8,000 in my savings account.
My parents can have everything else.” Norman died a few moments after making his statement.
Two days later, Mitchell wrote out Norman’s wishes and submitted the document for probate. Is
this a valid nuncupative will?
4. Molly and four of her friends were riding their bikes. Molly fell off her bike and hit her head.
Molly’s friend, Dena called 911 and waited with her for the ambulance to arrive. Molly started crying
and said, “If I die, I want my sister, Sammy, to have everything I own. It is probably only worth
about $500, but it’s better than nothing.” Dena took out a napkin and wrote down what Molly told
her. Molly died on the way to the hospital. The next day, Dena submitted the napkin to be probated
as Molly’s will. Is this a valid nuncupative will?
554

5. Nellie and her sisters, Connie and Starr, were hiking in the woods. Nellie got bitten by a
poisonous snake. Nellie said, “If I don’t make it, I want the two of you to split the thousand bucks I
have in the bank.” Nellie was rushed to the hospital. She died the next morning. Connie wrote down
what Nellie had said and submitted it to be probated as Nellie’s will. Is this a valid nuncupative will?
6. Barry was scheduled to have surgery to remove a cancerous tumor from his stomach. The
doctors told Barry that he had a 35% chance of survival. The morning of surgery, Barry told his
wife, Jessica, that he wanted to execute a will. Jessica went to call the family lawyer. While Jessica
was gone, Barry began to feel sick. Barry told his nurses, Lucy and Tim, “My wife is taking too long
to get that lawyer. She may not be back before I have to go under the knife.” Tim offered to write
down Barry’s will and to give the note to Jessica when she came back. Barry said, “I want to leave
everything to Jessica. But, I want to leave $1000 to the church.” Barry’s operation was successful.
Two days later, when Barry and Jessica were driving from the hospital, their car was hit by a drunk
driver. Barry was killed instantly. A week after Barry’s funeral, Jessica submitted the note Tim had
given her to be probated as Barry’s will. Is this a valid nuncupative will?

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Chapter Thirteen: Additional Doctrines Impacting Wills

13.1

Introduction

In Chapter Eleven, we examined the things that are necessary to validly execute a will. The
purpose of this chapter is to discuss doctrines that are relevant to the execution of wills. The first
two principles, integration and incorporation by reference, apply when someone wants the probate
court to treat an independent document as part of the will. The doctrine of republication by codicil
relates to the impact that a codicil can have on a will. The main way to dispose of property after
death is through the execution of a will. Courts tend to invalidate other methods persons attempt to
use to control the distribution of their probate property after they die. The doctrine of acts of
independent significant is used to show that the person had a nontestamentary motive, so his or her
wishes should be enforced.
13.2

Incorporation by Reference

The testator may want another document to be considered as a part of his or her will. Courts
can use the doctrine of incorporation by reference to carry out the testator’s intent. In order for a
doctrine to be incorporated into a will, the following three factors must be present: (1) the writing
must be in existence at the time the will is executed; (2) the will must describe the specific writing
and (3) the testator must manifest an intent that the writing be incorporated into the will.

§ 2-510. Incorporation by Reference
A writing in existence when a will is executed may be incorporated by reference if the language of
the will manifests this intent and describes the writing sufficiently to permit its identification.
13.2.1 In Existence

Cyfers v. Cyfers, 759 S.E.2d 475 (W. Va. 2014)
WORKMAN, Justice:
The Petitioners, Cathy Cyfers, Joseph Cyfers, and Megan Cyfers, APPEAL FROM A November 28,
2012, order entered by the circuit court of Kanawha County, West Virginia, granting summary
judgment in favor of the Respondents, Jack Cyfers, Helen Cyfers, Roger Cyfers, Dottie Cyfers and
Wayne Cyfers, who are beneficiaries under a Will.

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I. Facts and Procedural History
This case arises from the Last Will and Testament (“the Will”) of Lois Jayne Cyfers Miller (“the
Decedent”), who died on January 7, 2009. The Will was executed by the Decedent on August 15,
2006, and was witnessed by Stacy Clark and Boyce Griffith, Esq. Mr. Griffith also prepared the Will
for the Decedent. The Will had an “Exhibit A” attached to it when it was submitted to probate by
Philip Vallandingham and Cathy Cyfers, the co-executors (referred to collectively as “the coexecutors”) named in the Will.
Article IV of the Will referenced Exhibit A and provided that other devises could be made through
Exhibit A, “which exhibit [wa]s of even date” with the Will. Exhibit A also contained handwritten
notations throughout the five-page document using different colors of ink and included a postexecution date in the Decedent’s handwriting. The exhibit set forth bequests made by the Decedent
to various relatives as referenced in Article IV of the Will. The exhibit, standing alone, was not
signed by the Decedent or witnessed. Included among the handwritten bequests was the following:
“Roger & Dottie [;] Nephew & Wife [;] Coin Collection in Strong Box at Home.” There was another
handwritten bequest to “Debbie Cyfers[;] (Niece in Utah).” That bequest provided: “3/4 coat Mink
& Leather, Many family Albums (20 some) and Loose Pictures, Keep in Family always!!!, Many good
coats, suits, purses, fur pieces, Various Jewelry, 1 diamond engagement ring, 1 Anniversary ring (8
small diamonds), Mixture too various to list, Mantle clock, ‘Howard Miller’ Anniversary Clock.”
There were other varied bequests of personal property, bank accounts and real estate contained
within Exhibit A. On the last page of the exhibit was the following handwritten language:
I love all my relatives and I have no children. My sisters & brothers have left their children their
estates; therefore, some do not need as others. Am taking this all into consideration, am trying to
do what, I think, is best. Gertrude was so good to Mom, Dad and Uncle Elmer!!! Since Joe Miller,
my love, help[ed] [to] make a lot of this money I want his only live sibling to have equal monies. I
love you Delores. (11/29/06[)].
The date of November 29, 2006, was nearly four months after the Will was executed.
A dispute arose between the co-executors of the Will and some of the beneficiaries of the Will
concerning the administration of the Decedent’s estate. On October 7, 2010, Jack Cyfers, Helen
Cyfers and Rogers Cyfers petitioned the County Commission to remove the co-executors stating
that “the Executors of Lois Jayne Cyfers Miller’s estate have continually refused to administer the
estate, pursuant to the Decedent’s last wishes, as set out in her Last Will and Testament. They refuse
to distribute the assets as directed by the Will.”
A few days later, on October 13, 2010, the co-executors filed a petition for declaratory relief in the
circuit court, asking for
(a) An order determining whether the handwritten notations on the face of the
will alter the will or have no effect on the will; (b) An Order determining whether
the handwritten attachment, Exhibit A, is validly incorporated by reference; [and]
(c) For such other relief and direction in the administration of said estate as the
Court deems proper.
On November 24, 2010, following a hearing regarding the petition to remove the co-executors, the
557

County Commission entered an order ruling that according to the Decedent’s Will, she left “all her
tangible personal property to Cathy Cyfers and all of the remainder of her personal property,
including the proceeds from the sale of her home ... to those people listed in Exhibit ‘A’ attached to
the Will.” The County Commission further determined that the co-executors had failed to
administer the Decedent’s estate as set out in her Will and that the co-executors had contested the
validity of the Will, which placed them in conflict with the heirs to the Decedent’s estate and with
the Decedent’s wishes. Consequently, the County Commission revoked the appointment of Mr.
Vallandingham and Mrs. Cyfers as co-executors of the Decedent’s estate and appointed the Sheriff
of Cabell County to serve as executor.
The declaratory judgment action proceeded in circuit court. The parties submitted cross-motions for
summary judgment. By letter dated September 26, 2011, the circuit court initially granted the coexecutors’ motion, concluding that Exhibit A was not validly incorporated by reference into the Will
under West Virginia law and directed the co-executors to prepare an order reflecting that ruling.
On January 12, 2012, the co-executors submitted an order as directed by the circuit court. On
January 17, 2012, the respondent beneficiaries filed an objection to the proposed order and filed a
motion for reconsideration. By order entered September 18, 2012, the circuit court granted the
respondents motion for reconsideration and set the matter for trial on October 9, 2012.
On October 9, 2012, the parties appeared for trial. At that time the circuit court inquired of the
parties if they wished to have the circuit court rule on renewed motions for summary judgment. The
parties agreed that the issues could be resolved by the pending summary judgment motions, thereby
waiving their right to a jury trial in favor of a ruling by the circuit court as a matter of law.
By order entered November 28, 2012, the circuit court granted summary judgment in favor of the
Respondent beneficiaries under the Decedent’s Will. The circuit court concluded that Exhibit A was
properly incorporated by reference into the Decedent’s Will. More precisely, the circuit court, in
relevant part, determined that “‘Exhibit A’ (a) is repeatedly referenced in the Will; (b) is attached to
the Will; [and] (c) is written in the Testator’s handwriting [ ]....” Regarding only the handwritten
notations found on the Will and Exhibit A that were clearly made after the date the Will was
executed, the circuit court determined that “all of the disputed notations with dates after the Will
was executed are surplusage and can be disregarded as the remainder of the Will is more than
adequate to express ... [the Decedent’s] intent and to dispose of her property.” Finally, after
concluding that the handwritten notations on the Will itself and the single handwritten notation
containing a post-execution date on Exhibit A were surplusage and were to be disregarded, the trial
court found that “there is nothing to indicate that the Will together with Exhibit A do not
adequately and accurately reflect how ... [the Decedent] intended her Estate to be divided upon her
death.”
On appeal, the Petitioners argue that the circuit court erred: 1) in concluding that Exhibit A to the
Will was properly incorporated by reference into the Will; 2) in concluding that the handwritten
notations contained within Exhibit A clearly made after the date that the Will was executed are
surplusage and were to be disregarded; and 3) by considering the Decedent’s intent with respect to
whether Exhibit A was properly incorporated by reference into the Will. Based upon a review of the
parties’ briefs and oral arguments, the appendix record, and both parties’ agreement that the issues
were susceptible to resolution by summary judgment, we conclude there was no other material
evidence available and therefore insufficient evidence to allow Exhibit A to be incorporated by
558

reference into the Will. We reverse the circuit court and remand for entry of an order consistent
with this opinion.
II. Standard of Review
“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192
W.Va. 189, 451 S.E.2d 755 (1994); accord Syl. Pt. 2, Estate of Robinson v. Randolph Cnty. Comm’n, 209
W.Va. 505, 509-10, 549 S.E.2d 699, 703-04 (2001). Further, “[a] motion for summary judgment
should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry
concerning the facts is not desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Cas. &
Sur. Co. v. Fed. Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963). We will reverse a circuit
court’s grant of summary judgment if, as a matter of law, the moving party is not entitled to
judgment. Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 336 (1995). With the
standards of review in mind, we review the issues raised.
III. Discussion
The determinative issue is whether the circuit court erred in concluding that Exhibit A to the Will
was in existence at the time of execution of the Will and was properly incorporated by reference into
the Will. The circuit court ruled that “[i]n this case, ‘Exhibit A’ (a) is repeatedly referenced in the
Will; (b) is attached to the Will; (c) is written in the Testator’s handwriting; and (d) Ms. Miller’s prior
Will, executed in 1999, also had an ‘Exhibit A’ attached indicating her wishes.” (Footnote added).
The Petitioners argue that the Exhibit A that was found with the Will and presented for probate was
not the same Exhibit A that existed at the time the Will was executed. It is apparent from the single
handwritten date that is found in Exhibit A that at a least portion of Exhibit A was added after the
Will was executed. Conversely, the Respondent beneficiaries argue that the circuit court did not err
in incorporating Exhibit A by reference into the Will.
The controlling case on this issue in West Virginia is Wible v. Ashcraft, 116 W.Va. 54, 178 S.E. 516
(1935). One of the issues presented to the Court in Wible was whether the reference to the deeds in
the will was sufficient to incorporate the deeds by reference into the will. Id. In deciding the
incorporation by reference argument, the Court stated:
“An unattested or imperfectly attested paper may be incorporated in a will by reference, if the
terms of the will, assisted (if necessary) by the surrounding circumstances, are sufficient to identify
the paper, and to show the intention of giving effect to it.” Allen v. Maddock, 11 Moore P.C. 427,
14 Reprint 757, 26 Eng. Rul. Cas. 439. The foregoing rule, followed by the English courts, has
been frequently cited and followed in this country. Newton v. Seaman’s Friend Society, 130 Mass. 91,
39 Am. Rep. 433. In the latter case Chief Justice Gray said: “If a will, executed and witnessed as
required by statute, incorporates in itself by reference any document or paper not so executed and
witnessed, whether the paper referred to be in the form of a will or codicil, or of a deed or
indenture, or of a mere list or memorandum the paper so referred to, if it was in existence at the time
of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to
therein, takes effect as part of the will, and should be admitted to probate as such.” The same rule
was invoked by the Supreme Court of Virginia in the case of Pollock v. Glassell, [43 Va. 439] 2 Grat.
(Va.) 439 [(1846)].
116 W.Va. at 57-58, 178 S.E. at 517 (emphasis added). Following other jurisdictions, including
559

Virginia, the Court adopted the doctrine of incorporation, holding in the first syllabus point of Wible
that
[w]here it appears from the language of a will that deeds bearing a certain date
were included in the testator’s plan for the disposition of his property and
prompted the provision for the one bequest made therein, and the reference to
the deeds is sufficient to reasonably identify them, such deeds become part and
parcel of the will as completely as if copied therein for the purpose of
ascertaining the testator’s intention regarding the said bequest.
Id. at 54, 178 S.E. at 516, Syl. Pt. 1.
Applying this law to the facts of Wible, the Court concluded that:
Have the deeds been incorporated into the will in the present case? A reference is made to the
transfer to “my beneficiaries” by deeds “dated the 11th day of February, 1928”; the deeds were in
existence at the time of the execution of the will; and the intent to incorporate them for purpose
of explanation is sufficiently shown by the words “and now desiring to give to my granddaughter,
Mary Wible, such further amounts out of my estate, in addition to the property already deeded to
her, as I feel she is entitled to receive in order that she may have an equal share of my estate.”
True, the will does not set out in detail the property conveyed by the deeds, or the names of the
several grantees; but this is not necessary where the deeds can be identified with sufficient
certainty to warrant their incorporation. The appellant does not deny the existence of the deeds, or
that the four in question are the ones referred to in the will.
Id. at 58, 178 S.E. at 517-518.
Even though the Wible case dealt with incorporating a deed by reference, the law relied upon by the
Court concerning the doctrine of incorporation by reference expressly provided that any document
or paper could be incorporated by reference into a will. Extracting the salient requirements for
incorporation by reference from the Wible decision, we now hold that there are three elements that
must exist in order to incorporate a document by reference into a will. First, the extrinsic document
sought to be incorporated must be in existence at the time the will is executed. Second, the intention
of the testator to incorporate the extrinsic document into the will must appear clearly from the will.
Third, the reference in the will must identify the extrinsic document with sufficient certainty that the
written document referenced in the will is the written document proffered. See id at 54 and 58, 178
S.E. at 516 and 517-18.
Having set forth the necessary requisites that must be established in order for a document to be
incorporated by reference into a Will, the focus of this appeal is whether Exhibit A, the extrinsic
document sought to be incorporated into the Decedent’s Will, was in existence at the time the Will
was executed. Id.
In discerning the answer to the question before us, there is no dispute that there was an Exhibit A
attached to the Will at the time the Will was submitted to probate. There is, however, no evidence
regarding what bequests were contained within Exhibit A at the time the Will was executed. Rather,
the evidence submitted before the circuit court was that the Decedent’s attorney, Mr. Boyce A.
Griffith, gave the Decedent a blank form to fill out regarding certain bequests of tangible personal
property and real estate to beneficiaries that the Decedent would identify in the exhibit. The practice
in Mr. Griffith’s office was that after completing the blank document, the Decedent would return
560

the completed form to his office prior to the will being executed. All that Mr. Griffith had in his file
regarding the Decedent’s Will was a copy of the Will before it was executed without any exhibit
attached thereto. Even though Mr. Griffith testified that Exhibit A was in existence on the date the
Decedent’s Will was executed, he could not state what language or bequests were contained within
Exhibit A when the will was executed. Mr. Griffith further stated that even though he did not have
any documentation to show any of the language contained in Exhibit A on the date the Will was
executed, he testified that the Decedent had “already written” out what she wanted included in
Exhibit A at the time the Will was executed. However, Mr. Griffith testified that at least some of the
notations contained within Exhibit A were made after the Will was executed on August 15, 2006.
No additional evidence was offered by the parties to show what language was contained within
Exhibit A on the date the Will was executed.
Given the uncertainty as to what bequests were contained in Exhibit A at the date of execution of
the Decedent’s Will, we are compelled to conclude that there was insufficient evidence to allow the
incorporation of Exhibit A by reference into the Will. Unfortunately, the undisputed evidence shows
that at least one of the bequests contained within Exhibit A was made after the date the Will was
executed. Further, the Decedent’s attorney was unable to state what bequests or language was
contained within Exhibit A at the time the Will was executed. These facts together with the
Respondents’ inability to present any additional evidence on this issue must necessarily result in the
conclusion that it is simply impossible to prove that the Exhibit A that was submitted affixed to the
Decedent’s Will for probate was the same Exhibit A that existed at the date the Will was executed.
As the Court stated in Wible, the existence of the extrinsic document, Exhibit A, sought to be
incorporated must have been in existence at the time the will was made. 116 W.Va. at 54 and 58, 178 S.E. at
516 and 517-18 (emphasis added).
Our ruling today is supported by a similar determination made by the Supreme Court of Virginia in
the Triplett case. See 172 S.E. at 167. In Triplett, the court considered whether an exhibit had been
incorporated by reference into a holographic will. Id. A memorandum in the decedent’s handwriting
referred to as exhibit Y, provided that the decedent was in the process of rewriting his will; however,
he did not wish his original will to be affected by his undertaking if he failed to complete it. Id. The
decedent then stated in exhibit Y that there was a change to his third request made in his will as
follows: “The change made in my third request I prefer being substituted for the original.” Id.
Exhibit Y was dated December 11, 1929, and was witnessed and signed by the decedent. Id. In the
same envelope as exhibit Y, was exhibit X. Id. Exhibit X was an unfinished will that the decedent
was engaged in rewriting. It contained four enumerated clauses including a third bequest which left
$15,000 to the decedent’s nephew. Id.
The argument before the court in Triplett was that exhibit Y incorporated by reference exhibit X,
because exhibit Y met the statutory requirements for a holographic will as it was in the decedent’s
handwriting, witnessed and signed by the decedent. Id. at 167. The problem the Virginia court had
with this argument was that the decedent had indicated that he was in the process of rewriting his
will at the time he indicated in exhibit Y that he desired to change the third bequest. Id. at 168.
Exhibit Y was dated December 11, 1929, but the decedent did not die until March 6, 1930. So the
factual query posed to the Triplett court was: “How much of the paper sought to be incorporated by
reference was written after Exhibit Y was written; or how much had been written at the date of that
exhibit? We do not know. How, then, is it proven that the paper was in existence at the time it was
claimed to have been incorporated by reference?” Id. The court concluded that there simply were
insufficient facts to prove the requisite existence of exhibit X at the date of execution of exhibit Y.
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Id.
Based upon the foregoing discussion, the requisites for incorporating a document into a will by
reference cannot be established. This legal doctrine exists in order to prevent a third party from
interfering with the intent of a testator by altering a document to be incorporated by reference by
fraud or undue influence once the will is executed. Although there is no allegation of wrongdoing or
fraud in the instant case, and although the testator may have intended her estate to be distributed in
accordance with the bequests identified in Exhibit A, that intent was frustrated by the failure to
follow these legal principles which have been developed to protect the sanctity and integrity of the
testamentary process. Therefore, the circuit court erred, as a matter of law, in allowing Exhibit A to
be incorporated by reference into the Decedent’s Will.
IV. Conclusion
Based upon the foregoing, we reverse the decision of the circuit court and remand this case for entry
of an order consistent with this opinion.
Reverse and remanded.

Clark v. Citizens Nat. Bank of Collingswood, 118 A.2d 108 (N.J. Super. Ct. App. Div 1955)
HANEMAN, J.S.C.
Plaintiff herein filed a suit seeking the construction of the will of Ernest W. Clark, deceased. In
answer thereto, the Attorney General of the State of New Jersey filed an answer in which it was
stated that it had no knowledge or information sufficient to form a belief as to the allegations of the
complaint. The defendant Citizens National Bank of Collingswood, New Jersey, filed an answer and
stated, among other things, that it was presently in the process of liquidation and therefore
powerless to act in a banking or trust capacity except for the purpose of liquidation. Thereupon the
plaintiff moved for a summary judgment upon affidavits filed and testimony taken in open court. In
the light of the consent of the defendants to proceed in this matter, it will be considered as if the
same were submitted on final hearing. The facts in connection herewith are as follows:
On Saturday, March 1, 1952, Ernest W. Clark, then being ill and confined to his home, executed two
instruments, (1) an Inter vivos trust agreement, and (2) a last will and testament. The order in which
reference to these instruments is made is not to be deemed a conclusion as to the sequence of their
execution. The Inter vivos trust agreement, which was not executed as required for the execution of
a will, created a charitable trust, giving broad powers to the named trustee in the management and
conduct of the investments in said trust, and provided in addition, in part, as follows:
‘Witnesseth that: Whereas the Donor has this day deposited with the Trustee certain monies,
property, securities, investments and/or other assets, as set forth and enumerated in Schedule ‘A’
annexed hereto and hereby made a part hereof, in trust nevertheless for the uses and purposes, and
under and subject to the terms and provisions hereinafter set forth; which trust the Trustee is willing
to accept and assume; and the said parties desire to herein and hereby express and set forth and
define the nature and terms of said trust:
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(a) The Trustee shall pay the entire net income derived from the trust estate during the Donor’s
lifetime to the Donor, or in accordance with such written instructions or directions as may be given
by the Donor to the Trustee, from time to time, with respect thereto; and the Trustee shall further
pay and/or deliver to the Donor, from time to time, in addition to the said payments of income,
such monies or other assets from the principal of the trust estate as the Donor may request, or as
the Trustee may deem necessary for the support, maintenance, comfort or welfare of the Donor.
(b) From and after the Donor’s death the Trustee shall pay the entire net income derived from the
trust estate unto the wife of the Donor, Dorothea J. Clark, if she shall survive him, in convenient
installments, for and during the term of her natural life, or until her remarriage; and her receipt for
any sum or sums so paid to her shall be a complete and sufficient discharge of the Trustee in such
regard.
(c) Upon the death or remarriage of the Donor’s said wife, or if she should predecease the Donor
then upon the Donor’s death, the trust estate, or so much thereof as remains, whether principal or
accumulated income, shall be held and retained, in trust, by the Trustee, in perpetuity, and shall be
known and designated as the Clark Memorial Fund in memory and honor of the father and mother
of the Donor, Ernest W. Clark and Lula B. Clark, his wife, both late of Belhaven, North Carolina,
and the net income therefrom shall be paid and/or applied to further the education of such worthy
and needy graduates of the Belhaven High School, of Belhaven, North Carolina, as may be selected
in the manner hereinafter set forth.’
‘Schedule ‘A’. Securities deposited by Donor with the Trustee under the foregoing agreement: 100
shares, Camden Fire Insurance Association.’
The said last will and testament provided, as far as here pertinent, as follows:
‘* * * all of my residuary estate, I give, devise and bequeath unto the Citizens
National Bank of Collingswood, New Jersey, and to its successor or successors, In
Trust Nevertheless for the uses and purposes, and under and subject to the terms
and provisions of a certain agreement of trust entered into between the said
Citizens National Bank and myself, and bearing even date herewith, including such
amendments to and modifications of the same, if any, as may hereafter and during
my lifetime be made and agreed upon between the parties to said agreement, the
property passing under this paragraph to be added to and to become and be a part
of the corpus of the trust estate established by said agreement.’
There is great uncertainty as to whether the trust agreement or the last will and testament was first
signed on March 1, 1952. The state of the proof is such that there is no positive evidence of the
order in which said instruments were signed. However, it was proven that the trust agreement and
the 100 shares of Camden Fire Insurance Association stock therein referred to were not delivered to
the Citizens National Bank of Collingswood, New Jersey before Monday, March 3, 1952, and that
the said Citizens
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