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Son Disinherited Because of Felony Despite Expungement

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When William Garland, Jr., wrote his will, he was concerned about his son Richard Garland. Because he thought Richard had engaged in some irresponsible behavior in his teens, Mr. Garland directed that Richard’s share of his estate would be held in trust. The terms of the trust directed that all income would be distributed to Richard, but that he would get none of the principal until he turned thirty.

In fact, Mr. Garland was concerned enough that he included another, unusual, provision: if Richard Garland was convicted of a felony before he turned thirty, according to Mr. Garland’s trust, Richard Garland’s share would pass to Mr. Garland’s two daughters. In other words, Richard Garland had it within his power to disinherit himself.

Sure enough, Richard Garland got in trouble again before he turned thirty. In 1993 he pled guilty to a drug charge, was put on probation for five years and ordered to pay a $1,000 fine. That may have been the shock he needed, however, as he did not get in trouble again for the next decade.

In the year 2000 Richard Garland took advantage of the state law allowing convicted felons in some cases to set aside their criminal records. He convinced a judge that he had been rehabilitated, and his record was expunged. As part of that process the judge even ordered that his prior criminal conviction should be sealed.

Richard Garland then sought to have the remaining trust principal distributed to him as if he had not been convicted of a felony. His sister objected, arguing that the fact that his conviction had been set aside did not mean it had not happened, and Richard Garland had no right to receive anything further from the trust.

The trial court judge agreed with Richard, ruling that the expunging of his record meant that the conviction never happened in the first place. Richard’s sister appealed the court’s order.

The Arkansas Supreme Court reversed the trial court’s determination and ordered the trust distributed between Richard’s sisters. According to the Supreme Court’s analysis, the minute Richard entered his guilty plea and was sentenced, he had been convicted of a felony. The fact that he had successfully moved to set aside the conviction did not mean that it had not happened, only that the record was wiped clean. Put another way—when Richard Garland pled guilty, the trust property became his sisters’ because the trust’s terms directed that result. Later developments could not revive his interest in the trust. Summers v. Garland, February 13, 2003.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.