Thursday, June 21, 2018
Deceased Effectively Claimed Illegitimate Son Though Not to Wife, Family—C.A.
By a MetNews Staff Writer
A decedent who kept his illegitimate son secret from his wife and family has been held by the First District Court of Appeal to have nonetheless openly and publicly acknowledged the son for purposes of his standing to challenge the trust in the father’s estate.
The unpublished opinion, filed Tuesday, was written by Acting Presiding Justice Stuart R. Pollak of Div. Three. He was joined by Justice Martin J. Jenkins and Justice Peter J. Siggins, the latter of whom is currently awaiting confirmation of his elevation to presiding justice of the division.
The case involves a dispute between the illegitimate son of J.D. Smith Jr., a fullback for the San Francisco 49ers and other National Football League teams between 1956-66, and Patricia D. Smith Javaheri, Smith’s daughter by his wife. Javaheri is executor and trustee of Smith’s estate.
Jonathan Portero-Brown, Smith’s son from an extra-marital affair, challenged the validity of Smith’s posthumous trust and sought distribution of Smith’s assets through intestate succession. Javaheri responded by contesting Portero-Brown’s standing.
Openly Held Out
The issue of standing hinged on whether Smith had “openly held out the child as his own,” as required by Probate Code §6453(b)(2). The trial court found that Portero-Brown was, in fact, Smith’s son but ruled that Smith had not openly held him out as such.
“We conclude that holding a child out as one’s own within the meaning of section 6453, subdivision (b)(2) does not require an announcement of paternity to the world and is not necessarily precluded by withholding that information from family members unaware of the father’s extra-marital relationship,” Pollak wrote.
Widely Acknowledged Paternity
He went on to say:
“Smith admitted paternity in one social circle and concealed it from another. Although Smith concealed his paternity from his wife, marital children, parents and friends, he ‘openly and publicly acknowledged’ plaintiff to be his son within plaintiff’s ‘family and social circles,’ as the trial court found. Smith acknowledged his paternity to a wide array of plaintiff’s family and friends and never asked plaintiff’s mother ‘to deny’ his paternity. At plaintiff’s college graduation ceremony and party, Smith approached plaintiff’s friends and freely introduced himself as plaintiff’s father.”
“The evidence here established that Smith was ‘extremely protective of his children’ and ‘did not want them to be hurt by news of his extramarital affair.’ Smith was also protective of his public reputation as a professional football player and concerned that the inter-racial nature of the relationship would create a ‘scandal.’”
The case is Portero-Brown v. Javaheri, A149442.
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