JOSEPHINE'S STORY

In 1936, Josephine married a man named Ernest Jay Primm. Together, they had five children. The couple divorced in 1950. Josephine raised the children on her own.

In 1969, two years after Myron's first wife had died, Josephine and Myron married in California. Josephine's son Gary Primm served as best man. Myron's daughter, Judith Wright, was maid of honor.

In 1992, at Myron's probate proceeding in Texas, it came to light that Judith Patterson's attorney was not actually admitted to practice law in Texas. In reaction, the probate court struck all of her pleadings in the matter—a rather harsh move for a court to take. She filed no further claims against Myron's estate.

Fast-forward 12 more years to 2004. Josephine passed away in Washington state. The bulk of the estate she left had come from Myron.

Josephine's will identified her living "issue" by name and specified that "issue" meant "lawful descendants." The will expressly distinguished "issue" from "heirs at law" and provided that an adopted child was the "lawful descendant" of the adopting parents. The will gave two-thirds of Josephine's estate to Myron's "issue," presumably Judith Wright.

END OF STORY?

Fast-forward another three years to January of 2007. After the bulk of Josephine's estate had been distributed, Judith Patterson, by then about 51 years old, filed a petition to recover under Josephine's will pursuant to the Trust and Estate Dispute Resolution Act (TEDRA).

Judith Patterson's petition requested a determination that Myron was her father and consequently, that she was entitled to a share of Josephine's estate. The executor of Josephine's estate opposed this TEDRA petition and proffered documentary evidence that neither Myron nor Josephine had accepted Judith Patterson as Myron's biological daughter.

After a hearing, the superior court commissioner dismissed the TEDRA petition. Judith moved for reconsideration, which the commissioner also denied. She then sought revision of the commissioner's order before a judge of the superior court, who adopted the commissioner's decision as the decision of the court. Judith appealed.

On appeal, Judith argued that the term "lawful descendants" must be construed consistently with Washington's announced public policy as reflected in its intestacy statute treating the children of married and unmarried parents equally. The executor of Josephine's estate argued that the intestacy statute was irrelevant given that Josephine died testate and given that her will reflected her intent that Myron's "lawful descendants" included only those of Myron's descendants born to married parents. The appellate court agreed with the executor.

The appellate court initially noted that no Washington case had previously examined the meaning of the modifier "lawful" in relation to words such as "children," "issue" or "descendants."

Courts in other states that have examined the issue almost universally conclude that the phrase "lawful descendants" must be read as representing the intent to limit a bequest to children of legally married parents.

The court provided three reasons why Josephine's will shows that she intended to exclude any children that Myron might have had with women to whom he was not married.

(1) Josephine's will expressly distinguished "heirs at law" (those who would be entitled to inherit under the intestacy statute) from "lawful descendants" (those entitled to recover under the will's residuary provisions.) The court stated that accepting Judith Patterson's argument would render the distinction between these two groups utterly meaningless, as both would be interchangeably entitled to inherit under the will.

(2) Even if Josephine's will had not expressly distinguished between "heirs at law" and "lawful descendants," treating the terms defined in the will as "lawful descendants" (children, issue, etc.) as though they were defined simply as "descendants" would render the modifier "lawful" purposeless.

(3) Finally, if, for the sake of argument, the modifier "lawful" as used in Josephine's will was in fact ambiguous, the court could then look to extrinsic evidence to ascertain Josephine's intent. Evidence supported the court's conclusion. Specifically, Myron's will expressly listed his "lawful descendants." Judith Patterson was omitted.

Also, when Judith Patterson attempted to intervene in the probate of Myron's will and establish paternity, Josephine (as executrix of Myron's estate) vigorously opposed her claims and her entitlement to inherit under Myron's will (paternity notwithstanding). The provisions of Myron's will were nearly identical to those in Josephine's, and nothing in the record suggested that Josephine had a change of heart with respect to Judith Patterson's claims during the time between Myron's death and her own death. As a result, Judith Patterson's contention that Josephine intended to devise a substantial portion of her estate to her is without credibility.

At the conclusion of its opinion, the appellate court tersely rejected Judith Patterson's final argument that its decision violates the equal protection clause and Fourteenth Amendment of the U.S. Constitution, as these provisions apply to actions by states, not actions by individuals.

MORAL OF THE STORY?

The problem of the rights of non-marital children to inherit under documents that use phrases like "issue," "lawful issue," etc. is a perennial one that many states have addressed through legislation.

While testators and settlors are free to disinherit non-marital children, most of this legislation seeks to make them do so in a much more direct way than through the use of ambiguous terms.