Metropolitan News-Enterprise


Thursday, October 11, 2001


Page 1


Adopted Children Entitled to Share of Natural Father’s Estate—C.A.

Case Shows ‘Danger of Preprinted Wills,’ Third District Panel Warns


By KENNETH OFGANG, Staff Writer/Appellate Courts



The adopted-out children of a man who signed a preprinted form will leaving everything to his wife, who later predeceased him, are entitled to their intestate shares of their natural father’s estate, the Third District Court of Appeal has ruled.

“This case illustrates the danger of using preprinted wills,” Justice Fred Morrison wrote Tuesday.

The panel ruled that Phillip Joe Battles and the children of the late Jimmie Dean Battles are entitled to share, under the intestacy laws, in the estate of Haskell J. Dye. The Battles brothers were the issue of Dye’s first marriage and were adopted, with Dye’s consent, by their stepfather Arthur Battles in 1959.

Dye died in June 1999, five months after the death of his second wife. The couple has executed preprinted form wills, each leaving his or her entire estate to the other, in 1989.

1985 Legislation

The appellate panel agreed with Yuba Superior Court Judge Thomas F. Matthews that because Dye executed his will after 1985, his adopted-out children are entitled to the benefit of legislation, now found in Probate Code Sec. 6451, effective that year. The law provides that a child adopted by a stepparent is also considered a child of the natural parent for inheritance purposes if the child was part of the natural parent’s household.

Under prior law, adoption always severed the relationship between the child and the natural parent.

Matthews’ ruling was appealed by Scott T. Dye, Haskell Dye’s adopted son and the natural child of Dye’s second wife, Eleanor. Scott Dye claimed to be the sole heir to the estate, arguing that Haskell Dye never intended to benefit the Battleses, especially Jimmie Dean Battles’ children, “some of whom he never even met.”

But if Haskell Dye didn’t want to leave shares of his estate to the Battleses, Morrison wrote, he could have expressly disinherited them or left them a dollar each, either in the 1989 will or in a new will or codicil following his wife’s death. “Decedent did none of these things,” the justice wrote.

Had Haskell Dye executed his last will before the law changed, Morrison explained, the new provision would not apply. But the jurist rejected Scott Dye’s contention that the new law shouldn’t apply where the adoption occurred prior to the legislative change.

“The statute does not retroactively undo adoptions, it prospectively defines circumstances under which an adopted-out child can invoke intestacy laws and inherit from a natural parent,” Morrison wrote.

The justice went on to reject the contention that Matthews should have admitted extrinsic evidence of the testator’s intent in order to resolve the “ambiguity” of the will regarding disposition in the event Dye was predeceased by his wife. There was no such ambiguity, Morrison said.

Attempt to Rewrite

Scott Dye’s contention that “Haskell intended all of his estate to go only to his wife under any and all circumstances surrounding his death and the act of so disposing of his property manifests his intent that Eleanor’s heir, Scott, would be entitled to the estate if Eleanor passed before Haskell” represents an attempt to rewrite the will, not interpret it, Morrison reasoned.

The justice went on to reject the contention that the estate should pass through to Scott Dye as Eleanor Dye’s heir, rather than to Haskell Dye’s heirs, based on the “antilapse” provision of Sec. 21110(c).

The statute provides that “if a transferee . . . fails to survive the transferor...the issue of the deceased transferee take in the transferee’s place,” with “transferee” defined to mean “a person who is kindred of the transferor or kindred of a surviving, deceased, or former spouse of the transferor.”

A spouse isn’t “kindred,” and California has never applied the antilapse statutes to spousal bequests, Morrison explained.

“The antilapse statutes and decisions vary widely,” he wrote. “...But in California, as in the common law generally, ‘kindred’ requires consanguinity, not merely affinity.”

The case is Estate of Dye, 01 S.O.S. 4950.


Copyright 2001, Metropolitan News Company