Wills, Trusts & Estates Prof Blog

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

Thursday, December 3, 2020

How Ancestry Kits Upend Estate Plans and Create Estate & Trust Litigation

Estate planningThe blog post discussed below is best enjoyed if preceded by Family History of the Smiths and Alexanders.

Randall, son of Johnny, gave his sister Twyla a 23 and Me ancestry kit as a gift in order to learn more about their genes. The gift came after their father (Johnny) became sick with Alzheimer's. After Twyla took the test, Stevie Jenkins appeared after her results revealed that she was Twyla's half sister. Stevie happened to show up at the time Johnny's estate was being probated. 

Since Stevie's existence was unknown to the Personal Representative, she was not given notice of the estate being probated. If the estate is still open (it appears to be) Stevie would need to prove that she is Johnny's daughter, which could be done using a DNA test. If Stevie is Johnny's daughter, she could argue that she is entitled to a portion of Johnny's estate as an "omitted heir." 

In order to be successful, Stevie would need to show, "Stevie would need to prove either (1) she was born (or adopted) after Johnny executed his Will in April 2013 (making Stevie about seven years old, which is unrealistic); or (2) Johnny believed Stevie to be dead. It is unclear on the facts provided whether Johnny knew of Stevie’s existence, but Stevie would need to try to prove that Johnny believed she was dead." 

Stevie could also look for broad language that would allow her to fit herself into the Will. 

As crazy as this situation appears, it is not uncommon. Ancestry kits have allowed people search their family history, bringing up siblings and other family members that they may have never known about. Thus, family secrets have come to light which may often lead in litigation and family battles over estate shares. 

See Ann Hetherwick Cahill, How Ancestry Kits Upend Estate Plans and Create Estate & Trust Litigation, Burns & Levinson: Beyond the Will Blog, November 26, 2020. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

https://lawprofessors.typepad.com/trusts_estates_prof/2020/12/how-ancestry-kits-upend-estate-plans-and-create-estate-trust-litigation.html

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