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Will Contest Fails, But Paternity Remains an Issue

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Paternity in Alaska

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.

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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.