Beyond The Will, Client Compass

How Ancestry Kits Upend Estate Plans and Create Estate & Trust Litigation

November 26, 2020


To best enjoy this post, please be sure to first read A Family History of the Smiths & Alexanders.

Continuing the Smith and Alexander family saga, this blog focuses on the interesting and not-uncommon twist of Stevie Jenkins surfacing and believing to be half-siblings with Twyla and Randall. Tiffany Bentley’s blog last week discussed the potential litigation involving Johnny’s estate. Stevie’s emergence, however, further complicates things.

To recap, several years before Johnny’s death, Randall gave his sister, Twyla, a 23 and Me ancestry kit for a holiday present in order to learn more about their genes and to improve their health, in light of their father’s (Johnny’s) deteriorating health due to Alzheimer’s. Twyla took the test, set up her online profile, then forgot about it.  Stevie Jenkins’s ancestry results revealed that she was half-sisters with Twyla, sharing the same father: Johnny. Of course, the timing of Stevie’s emergence is around the same time that Johnny’s estate is being probated.

The existence of Stevie as Johnny’s potential third child could have significant effects on his estate distribution. At the outset, Stevie did not receive any notice of Johnny’s estate being probated (because Moira, the nominated Personal Representative, did not know Stevie existed and the facts do not indicate that Stevie saw the publication notice in the local newspaper).  Nevertheless, based on the fact pattern, it seems that Johnny’s estate was still open at that time due to litigation. With the estate open, Stevie would file a Notice of Appearance and Objection.  She also should file a Motion to Compel DNA testing.

If the estate was closed though, Stevie would need to file a formal Petition to Determine Heirs. While there is a default three-year statute of limitations to probate an estate in Massachusetts, there are a few exceptions, one of which could apply here, and there is statutory language that the limitations period does not apply to determine heirs of an intestate. Although Johnny died with a 2013 Will, as Tiffany Bentley discussed, Randall and Twyla might argue intestacy because of the fact that Moira and Johnny never married and the 2013 Will does not reflect Johnny’s intentions. Randall and Twyla might regret arguing for intestacy after Stevie surfaces!

In the estate case, Stevie needs to prove that she is, indeed, Johnny’s daughter. The most straightforward way to do this is through a sibling DNA test, in which Stevie and either Twyla or Randall have DNA tests to determine if they share the same father. I have used this method successfully in several cases.

If the facts were different here and Johnny had no other children (i.e., Twyla and Randall were never born), it is possible to obtain DNA evidence from deceased Johnny himself. In fact, a few years ago I was involved in a fascinating case in which a person sought to obtain DNA evidence from his alleged father who had died in 1979! Over family and religious objections, the lower court determined that the putative son introduced sufficient evidence of being the son, such that the court ordered the body to be exhumed from a local cemetery for the purposes of DNA testing. (Spoiler alert:  The exhumation never happened.)

If DNA concludes that Stevie is Johnny’s daughter, she would try to claim that she is entitled to a share of Johnny’s estate as an “omitted heir.” Under the governing MUPC statute, Stevie would need to prove either (1) she was born (or adopted) after Johnny executed his Will in April 2013 (making Stevie about seven years old, which is unrealistic); or (2) Johnny believed Stevie to be dead. It is unclear on the facts provided whether Johnny knew of Stevie’s existence, but Stevie would need to try to prove that Johnny believed she was dead. This is a tough argument to prove.

Stevie could also claim that she is part of the class of Johnny’s children. The facts state that Johnny and Moira’s 2013 Wills defined children to include Randall, Twyla, Alexis, and David.  Nevertheless, Stevie should review Johnny’s Will and Trust to see if there is any wiggle room in the language to fall within the class of children and/or if there is exclusionary language for any other children besides those specifically defined.

Lastly, it seems that Stevie could fall within the class of Johnny’s “issue” in Johnny’s parents’ Family Trust. Through Johnny’s Will, he exercised a limited power of appointment that had been granted to him in such Family Trust, directing that income from that trust be paid to his spouse, Moira, for her lifetime. That Family Trust, by its terms, would terminate upon the last to die of Johnny and his four siblings, at which time the remaining principal would distribute outright to the issue of Johnny and his siblings by right of representation.

This class is large because it includes Johnny and his four siblings’ issue.  Under the MUPC, “issue” refers to “descendants,” which is defined as “all of such individual’s descendants of all generation.” Based on the facts, it is unclear if this Family Trust terminates upon Johnny’s death or whether any of Johnny’s siblings are still alive. In any event, Stevie has a strong argument to include her as Johnny’s issue upon the termination of the Family Trust. It is likely that the Trustee of this Family Trust would file a Complaint for Instructions as to whether Steve is includable in the class to receive part of the principal distribution at the time of termination.  Again, a sibling DNA test would be necessary here if it had not been performed in the estate matter.

Although Stevie’s situation seems farfetched, this type of situation occurs! In the last few years, ancestry kits such as 23 and Me have allowed people to search their family history. Even today with Black Friday sales going on, for the low sale price of $79, anyone can learn their family tree, ancestry reports, and DNA relatives, as well as health disposition reports. The results can connect previously unknown – yet very close – relatives, thereby revealing some family secrets and creating a potential inheritance windfall.

The most important way to avoid a similar situation is to update your estate plan regularly.  For example, as explained above, Stevie is unlikely to inherit as an “omitted heir” because she was not born after Johnny executed the Will (and it is difficult to prove that Johnny thought she was dead). The situation might have been different had Johnny never executed the 2013 Will and had an old Will that predated Stevie’s birth.

If you have any questions about inheritance rights, this is a fascinating and developing area of the law so be sure to consult with a skilled estate and trust litigator.

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