Based on popular cultural references (and especially novels, television and movies), it might seem like will contests are commonplace. In fact, very few wills are contested. When a will contest is filed, it is seldom successful.The risk that someone might contest your will is very slight — but it does happen. The background story in a recent Alaska case – involving a dispute about paternity – illustrates how will contests sometimes can arise.
John Sitka (not his real name) was a longtime Alaska resident. When he died at age 90, he left no spouse or children behind — or at least, that was what his will said. He had signed his will five years earlier, and it recited that he was not married and had no living children or issue.
The lawyer who prepared John’s will filed it with the Alaska probate court, which accepted it as John’s last will. His lawyer was also named as personal representative, and she began administration of his estate.
The will contest
Shortly after the probate was started, Victor Marks filed a petition with the court. He alleged that John was his father, that John and his mother, though unmarried, had a thirteen-year relationship thirty years before John’s death.
John had been cremated, and the ashes spread over the mountains around Anchorage. Victor asked the probate court to order DNA testing on John’s ashes. He argued that the will was defective because John had forgotten that he had a son.
Meanwhile, Victor’s mother filed a creditor’s claim against John’s estate. Though Victor was by this time over thirty years old, she argued that she was owed eighteen years of child support for raising John’s son to the age of majority.
The probate court ruling
The Alaska probate court rejected Victor’s mother’s claim. It was too late to assert a claim for child support, ruled the judge.
Because neither Victor nor his mother had ever sought a court order establishing paternity during John’s life, the probate court also dismissed Victor’s will contest. The probate proceeding is not the right place to assert a paternity claim, ruled the probate judge.
As part of its ruling on the will contest, the probate court also rejected his request for DNA testing on John’s ashes. Although the ashes had already been scattered, Victor asserted that there might be residual ashes in the urn where they had been stored and/or the airplane used for the scattering. The probate court rejected this idea.
Side issues arose in the will contest proceedings, as well. In one pleading the lawyer filing the will had inadvertently listed the wrong date for the will signing. Victor and his mother seized on this issue to claim that John’s “real” will must have been lost.
John’s will also included a provision that might have specifically disinherited Victor. It said: “If any relative, or person claiming to be an heir or relative, or any other person whomsoever, should attempt by legal action or otherwise, to contest this Will, I hereby give [such person] the sum of $1.00….” The personal representative argued that, even if Victor turned out to be John’s son, his “inheritance” would be limited to one dollar.
Ultimately, the probate judge ruled against Victor and his mother on all of their claims. In fact, the court ordered that neither of them would be allowed to file any further motions or petitions, since they had no legitimate interest in John’s estate. Victor appealed, and his mother joined in the appeal.
The Supreme Court ruling
The Alaska Supreme Court ultimately heard the appeal. It agreed with the probate court on several of the key issues, but reversed part of the judge’s ruling and ordered further proceedings.
The state’s highest appellate court agreed that Victor’s mother made her claim for child support too late. If she had wanted to pursue paternity and child support, she needed to have done so while Victor was still a minor child (or shortly thereafter). Waiting another dozen years to assert the claim against his estate was impermissible.
John’s will did not leave anything to Victor, the high court agreed. Furthermore, Victor could not simply assert that John must have forgotten him. Alaska (like Arizona) does have a provision modifying wills when a child is born after the will was written. Such a later-born child is referred to as a “pretermitted” heir. In this case, though, John’s will was signed when Victor was in his mid-twenties. Victor was not a pretermitted heir.
Victor’s (small) victory
Victor was successful in the Supreme Court on one small point, however. The high court allowed him to argue that John was his father one last time. Alaska law provides $10,000 for an adult child unless the decedent’s will explicitly rejects that small bequest. If Victor could prove that John was his father he would be entitled to that amount. He might also be entitled to the $1.00 left to anyone claiming to be a family member.
The Supreme Court left open Victor’s paternity claim, at least for the moment. Both parties were ordered to file arguments on whether Victor’s claim should be barred as having been filed too late. In the meantime, however, Victor’s will contest has been denied. Estate of Seward, June 2, 2017.