Probate can dredge up issues better left buried

Probate can dredge up issues better left buried
Posted on March 6, 2015
Robert was 17, and in love with 19 year old Margaret. Margaret got pregnant, but his parents wouldn’t let him marry her, and without parental consent, the age to marry in Arkansas was 18. Margaret gave birth to a daughter, Joyce, in January 1949, but a birth certificate was not immediately issued. In 1951 Robert (now 19) and Margaret married, and a delayed birth certificate was issued in July of 1952 listing Robert as the father. The family moved to Vegas, and stayed together until Margaret died in 1990 and Robert died in 2012 at age 80. His obituary identified Joyce as his sole heir, and Joyce paid for his funeral services. Joyce did not immediately file for probate / intestacy.

There was no Will, which could have made it clear Robert wanted Joyce to inherit from him whether she was his daughter or not. In the absence of a Will, Robert’s sister Polly and nephew Gary filed a probate court petition for special appointment claiming 1) Joyce was not Robert’s real daughter, 2) “You knew you were never his child, the birth certificate is invalid, we want a DNA test.” Oh, and 3) Polly should inherit everything as next of kin.

The Nevada court opinion does not say how close Robert and his sister/nephew were. You can draw your own conclusions based on who arranged for the obituary and the funeral. The court did not force a paternity test. Instead, the Probate Commissioner held that the birth certificate was presumptively valid, Robert and Margaret had lived as if it were valid, which reinforced the validity of the birth certificate. Even if that were not the case, paternity contests are generally barred three years after the child reaches majority. Polly and Gary were out of luck.

Polly and Gary appealed, and asked for discovery (expensive) and an evidentiary hearing (essentially a trial). The court said no, your case does not even get to the discovery stage because you do not have standing and are time barred, so they appealed again. And lost again, with a Supreme Court of Nevada issuing an opinion citing cases from all over the US saying that siblings do not get to contest paternity by virtue of being siblings, as they are not “directly interested parties.” Getting a potential inheritance in a probate case does not convert them into an interested party in a “related” paternity case. Plus, you are time barred. Opinion here: http://law.justia.com/cases/nevada/supreme-court/2015/63284.html

A just result? Yes, albeit after years of litigation. But the court seemed to gloss over the second part of the 3 year time bar statute, which says “This section does not alter the time within which a right of inheritance or a right to a succession may be asserted beyond the time provided by law relating to distribution and closing of decedents’ estates or to the determination of heirship, or otherwise.” I would have liked to see more analysis on why this pretty specific language doesn’t apply. I suppose that will come down the road when someone else tries to litigate the issue.

Posted in probate, Uncategorized | Tagged heir, intestacy, probate

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