Wednesday, January 17, 2007
Page 3
C.A.: Acknowledgment of Paternity Enough to Give Inheritance Rights
By Tina Bay, Staff Writer
Evidence that a decedent during his lifetime acknowledged an individual as his child to various people on various occasions is sufficient to establish a father-child relationship for the purpose of inheritance rights, the Court of Appeal for this district ruled yesterday.
Div. Six affirmed an order by Ventura Superior Court Judge Barbara A. Lane, who found that under intestate succession laws, an Ohio man was entitled to share equally along with his half-sister in the estate of his biological father, Oxnard resident Gregory Burden.
Agnew was conceived out of wedlock to Burden and Sally Routt in October 1971. When he learned Routt was pregnant, Burden did not deny fatherhood and proposed marriage. Routt declined and instead married Chris Agnew, who was named on Dale Agnew’s birth certificate as the father and then supported him as though he were his own child, according to the evidence.
While growing up in Ohio, Dale Agnew had no contact with Burden or any member of his family and was not told that Burden was his biological father. When he was 18 years old, Routt finally told him about Burden and took him to meet Burden’s mother and siblings.
Agnew called and spoke to Burden for the first time after visiting his paternal relatives in Ohio. In that conversation, Burden apologized to him for being “an inactive father,” and also told him he had a half-sister but could not come to California to meet her.
The half-sister, Tara Burden, had been born in 1981 to Gregory Burden and his then-wife Linda Eve Burden. Although she grew up in the custody of her mother after her parents divorced in 1985, she had a close relationship with her father until his death in 2004.
Gregory Burden and Agnew spoke a second time in early 1990 after Routt had sent Burden photos of Agnew. Burden mentioned to Agnew that there was a family resemblance between him and Agnew and Agnew and his half-sister. But he subsequently sent a letter to Routt stating he did not want to become involved in Agnew’s life.
Agnew spoke to Burden for the last time in 1995, when he called after graduating from college to ask for help getting into Navy flight school. However, there was evidence that Agnew maintained a close relationship with Burden’s family—he has resided near them since 1998—and sent Burden a wedding invitation, birth announcements, father’s day cards, e-mails and greeting cards with pictures of his children.
Though Burden discussed Agnew with his sister in several emails, he did not respond to any of Agnew’s communications. In one email, Burden stated that he had “only been a party to conception” and that having a relationship with Agnew was “not high on my priority list.”
Agnew said everyone in Burden’s family except his half-sister knew that he was Burden’s son.
After Burden died without a will, Agnew claimed he was entitled to an equal share of his father’s estate under California’s intestate succession laws.
Although Agnew had never established paternity while Burden was alive, Lane found he showed by clear and convincing evidence that Burden openly held him out as his own during his lifetime, and thus established a father-child relationship for intestate succession purposes under Probate Code Sec. 6453(b)(2).
Sec. 6453(b)(2) provides that paternity may be established by clear and convincing evidence that the alleged father “has openly held out the child as his own.”
Agnew met his burden of proof under the section, Lane held, with evidence that Burden admitted his paternity both orally and in writing, for example in emails to his sister.
The Court of Appeal agreed with Lane, ruling that the “openly held out” requirement was satisfied by evidence that Burden acknowledged Agnew as his son.
Writing for the court, Justice Steven Z. Perren explained:
“Dale’s paternity claim is not ‘dubious.’ Although Gregory only grudgingly admitted paternity, he did so on a number of occasions to a number of people, both orally and in writing.”
Perren also explained that “[w]hether or not Gregory would have wanted Dale to inherit is irrelevant.”
Justices Kenneth R. Yegan and Paul H. Coffee concurred in the opinion.
Agnew’s appellate counsel, Tamara Lynn Harper, told the METNEWS her client was pleased with the ruling but remained concerned about protecting his inheritance rights in trial court.
“Tara’s still appointed as the administrator of the estate with limited authority,” the lawyer said. “We plan to go back to the probate court to have Dale appointed as the administrator and finish the probate, and divide [the estate] the way it should be.”
Tara Burden’s attorneys could not be reached for comment.
The case is Estate of Burden, B185726.
Copyright 2007, Metropolitan News Company