The $500 million question. Part I.

Okay, July California bar takers. This one is going to be on your exam. I can feel it.



"In 2001, Vickie, a resident of Los Angeles, California, executes a will in Los Angeles, California. Vickie is unmarried at the time and leaves her entire estate to her son Daniel, to be held in trust by Howard. Vickie explicitly disinherits all other relatives in Article I, including future children or spouses. However, in the following provision, Article II, Howard is directed to disperse trust funds to her 'children' at various times. On September 7, 2006, Vickie has a daughter, Danielynn. On September 10, 2006, Daniel dies, unmarried and without children of his own. On September 28, 2006 Vickie and Howard exchange vows off the coast of the Bahamas, but no marriage certificate is issued. On February 8, 2007, Vickie dies in the Bahamas. Who gets her estate?"

ARTICLE I:



ARTICLE II:



The will will be interpreted by California law, because it was executed in California by a California resident at the time.

First thing's first. Vickie's marriage to Howard is a legal nullity. There was no marriage certificate. He is not a spouse, so legally, she died unmarried.

Daniel is dead, and Danielynn was not in existence at the time the will was written. A "pretermitted child" is a child of a person who has written a will in which the child is not mentioned or left anything. These include children born after a will was executed. Is Danielynn a "pretermitted child"? Yes. Does California have a pretermitted child statute? Why yes it does! Westlaw says:

§ 6570. Child born or adopted after execution of will; share in estate Except as provided in Section 6571, if a testator fails to provide in the will for a child of the testator born or adopted after the execution of the will, the omitted child shall receive a share in the estate equal in value to that which the child would have received if the testator had died intestate. West's Ann.Cal.Prob.Code § 6570

"Intestate" means you croaked without a will, and every state has default rules on how an estate is distributed in the event someone dies without a will.

§ 6402. Intestate estate not passing to surviving spouse of surviving domestic partner. Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse or surviving domestic partner, as defined in subdivision (b) of Section 37, under Section 6401, or the entire intestate estate if there is no surviving spouse or domestic partner, passes as follows:

(a) To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240. West's Ann.Cal.Prob.Code § 6402

"Issue" means child. All right! This means that Danielynn would take under the will, right? Wait a minute, what is that "Section 6571" business? Maybe we should read that.

§ 6571. Children not receiving share; circumstances A child does not receive a share of the estate under Section 6570 if any of the following is established:

(a) The testator's failure to provide for the child in the will was intentional and that intention appears from the will. West's Ann.Cal.Prob.Code § 6571

Okay, let's stop here, because (b) and (c) are irrelevant, and I don't want to take up space. Article I explicitly disinherited everyone but Daniel, and it was even labeled "Statutory Disinheritance". Article I states, "Except as otherwise provided in this Will, I have intentionally omitted to provide for... my... future... children." That seems pretty clear. But Article II provides, in part, for trust funds to be dispersed to Vickie's "children" and refers to said children in the plural and using words like "their" and "are". What was her intent? And what was the attorney who drafted this will smoking?

We'll see that this doesn't matter, because Danielynn will take everything anyway.

Part II to come soon.