Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Thursday, November 11, 2010

Limitation to "Lawful" Descendants Excludes Nonmarital Children

Georgia In Hood v. Todd, 695 S.E.2d 31 (Ga. 2010), the testator’s will gave the residuary estate to his children and the issue of deceased children. In the will, the testator stated that he had two daughters, named them, and defined “children” to be the “lawful blood descendants in the first degree of the parent indicated.” An alleged non-marital daughter of the testator brought an action to establish her right to take as a child of the decedent and the probate court denied the executors’ motion for summary judgment. A divided Supreme Court of Georgia reversed, holding that the testator’s identification of his two daughters as his two living children and the limitation of the term children to “lawful blood descendants” means that a non-marital child cannot take under the will.

Special thanks to William P. LaPiana (Rita and Joseph Solomon Professor of Wills, Trusts,and Estates, New York Law School) for bringing this to my attention.


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