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Why you should update your NY attorney drafted will from time to time: Non-marital, afterborn children and the NY estate law: Estate of John Singleton

3
Jun

By Jason Stern

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When John Singleton arrived onto a Hollywood set in 1991 with his groundbreaking film Boyz n the Hood the twenty-five year old director instantly rose to the top of every movie studios choice for new projects.  Nominated for Best Director for the film by the Academy Awards, Singleton’s edgy, blockbuster movie about several young African American men growing up in gang riddled Los Angeles depicted the underbelly of a great City that had become a war zone.  This issue had gone largely unnoticed by the mainstream media until this project brought this controversial issue into the public’s awareness.  Unfortunately, only twenty-six years later, the acclaimed director would suffer a massive stroke in 2019 claiming his life at the age of 51.

To make matter worse Singleton had made the innocent mistake of failing to update his 1993 will in nearly 30 years.  With an estate in excess of $30 million dollars, Singleton’s Last Will & Testament only provided for then daughter Justice Singleton who was the only child he had in 1993.  However at the time of Singleton’s death the director left behind five children whom he acknowledged as his own during his life in addition to two other alleged children whose paternity is now in question.  

Afterborn children

As a NY estate lawyer with two decades of experience litigating estate matters the Singleton Estate creates two legal estate issues.  The first NY estate issue concerns the treatment of John Singleton’s five acknowledged children, children whom paternity is not in question.  Keeping in mind that only Singleton’s first child, Justice Singleton had been born at the time of Singleton’s 1993 Last Will Testament’s execution deeming his remaining four acknowledged children “afterborn” children.  

According to the NY estate law, more specifically as stated in Matter of Gillmore, because John Singleton provided for his daughter Justice to receive the entirety of his estate in his 1993 instrument, it is logical to assume John Singleton meant for his afterborn children to be treated similarly. As such, by virtue of the fact four of Singleton’s children were born after his will’s execution all five acknowledged children are entitled to inherit his estate equally.  In Los Angeles, where John Singleton’s will is now being contested, the estate laws are no different than the NY estate law concerning this issue.

Pursuant to EPTL 5-3.2 of the NY estate law the NY estate law guards against the unintentional disinheritance of children excluded from a NY will only by the mere fact they were born after the document’s creation.  As a NY estate lawyer who understands this issue I can tell you that each afterborn child shall be treated in accordance with any child born prior to a NY will’s execution.  For example In John Singleton’s estate he listed his only living child, Justice Singleton, as his sole beneficiary of his estate.  Under the NY estate law all acknowledged afterborn children, herein there are four, will now equally share the entirety of his estate equally.  

Luckily for John Singleton’s afterborn children, John had a fondness for his daughter Justice at the time of the 1993 will’s execution.  Had John disinherited Justice from his estate in the 1993 will, all afterborn children would be treated similarly and thus disinherited from his considerable estate. So the afterborn child rule under the NY estate law is really a double edged sword.  This is a perfect example illustrating the need to have your NY estate lawyer update your NY will from time to time as life events occur which impact our NY estate plans.

Non-marital children

The bigger, more complex estate issue with the John Singleton Estate is the status of his two “alleged” daughters.  An alleged distributee is a designation in an estate petition for an individual who may be related to the deceased but whose paternity was never formally established. For example when a child is born within a marriage or prior to their parent’s getting married there is something called the marital presumption of legitimacy.  Simply stated the NY estate law automatically designates children of married parents to be of the marriage.  However children born outside of wedlock have a much tougher hill to climb before they are legally presumed to be the paternal heir of their father.    

As one of a handful of NY estate lawyers who have successfully litigated this estate issue I can tell you there are no easy answers to this question.  These are very emotionally charged cases and to make matters worse the courts are all over the place when interpreting this area of the NY estate law.  There are several possible outcomes in the John Singleton Estate regarding this issue. First, if John Singleton’s five acknowledged heirs were to acknowledge their alleged siblings, the two “alleged” daughters would be treated similarly to the acknowledged heirs and would also inherit from the Singleton Estate.

However, should any of John Singleton’s heirs object to the status of the two daughter’s paternity as it seems likely will happen, the burden shifts to the alleged daughters of John Singleton to prove paternity by clear and convincing evidence.  In 2010 the NY estate law was amended that a non-marital child may inherit from his or her father if paternity was established during the decedent’s lifetime by clear and convincing evidence.  

So what is clear and convincing evidence of paternity?  Clear and convincing evidence within the context of their right to inherit as a non-marital child under the NY estate law requires overwhelming evidence of paternity and is one of the highest burdens to meet in all of law for a NY estate lawyer.  The NY estate law also includes a rigid quantum of proof included in the EPTL 4-1.2 before permitting a non-marital child to inherit from his or her father including:

(A) an order of filiation made during the father’s lifetime; or

(B) the father signed an instrument acknowledging paternity which also complied with the other requirements under EPTL 4-1.2(2)(B); OR

 (C) a blood genetic marker test, (DNA)  and other evidence established paternity by clear and convincing evidence.

However, if the alleged non-marital child cannot meet any of the above-mentioned burdens of proof, as DNA evidence also known as genetic marker material is rarely available, the alleged child may in theory establish paternity by way of open and notorious acknowledgment of paternity. In these cases, while there is no requirement that the putative father disclose paternity to all his friends and relatives an acknowledgment of paternity in the community in which the child lives is sufficient, in theory.

Unfortunately for NY estate lawyers, while the NY estate law theoretically provides for open & notorious acknowledgement of paternity, courts are extremely reluctant to permit alleged non-marital children to inherit by way of open and notorious acknowledgement.  Even in cases where a strong presumption of paternity by way of open and notorious evidence exists, NY Courts have still demanded clear and convincing evidence by way of some other means usually requiring genetic marker testing, otherwise known as DNA evidence.  In Matter of Lewis, NYLJ (Surr. Crt. Brx. Cty. 2016), where three children, one marital and two non-marital, were disputing each other’s right to inherit from their father’s NY estate the court ordered genetic marker testing to move forward for each of the three children before acknowledging paternity despite the existence of overwhelming evidence of open and notorious acknowledgement of paternity.  In fact, even in instances where there is no DNA material of the decedent available for testing purposes, the court has ordered that each alleged child’s genetic material be tested against any and all siblings of the decedent.

The court’s tact in many of these NY non-marital inheritance estate cases not only creates roadblocks for this class of claimants to assert their inheritance rights under the NY estate law as it is written and their NY estate lawyers but is also completely contrary to the spirit of this law’s 2010 revision.  More specifically, in 2010 EPTL 4-1.2 of the NY estate law, was specifically altered to allow claimants to choose their own path to assert their inheritance rights utilizing either evidence of open & notorious acknowledgement of paternity or some other clear and convincing as stated above if they wished. Unfortunately, since this statute’s 2010 revision, caselaw has been spotty as courts continue to ignore evidence of open and notorious acknowledgment of paternity electing instead for the more expeditious path of genetic marker testing.  This is very unfortunate, as we as NY estate lawyers believe the statute was amended to reinforce the inheritance rights of non-marital children to take as distributees where paternity was openly and notoriously acknowledged by the decedent but where biological relations may be questionable or where genetic marker material unavailable.  After all, is it not a travesty of justice to question the paternity of someone who was born outside of wedlock but who was raised and acknowledged to be the decedent’s child their entire life despite the existing possibility of being non-biological?  

As such, in light of the NYS legislature’s 2010 revision to the NY estate law, non-marital children should be able to assert their rights to inherit as distributees if open and notorious acknowledgment was established during the decedent’s lifetime and should not be subjected to the indignity of DNA testing if they so choose.

In each of our NY estates involving the assertion of inheritance rights on behalf of non-marital claimants, we chose to establish paternity by way of open and notorious means.  Unarguably, open and notorious acknowledgment is the most difficult path for a NY estate lawyer to pursue in these matters by design.  While courts prefer to take a very pragmatic approach to these contested matters opting instead to order genetic marker testing, that is not in the spirit of the NY estate law.  

From experience as a NY estate lawyer I can tell you that with tens of millions of dollars in the balance, John Singleton’s Estate will have to be litigated to some extent.  However with that much inheritance at stake I am sure an amicable settlement can be reached among each party should cooler heads prevail.  

If you or a family member are thinking about drafting or litigating an issue concerning a NY will feel free to call the NY estate lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our NY estate lawyers have more than 60 years of combined NY estate law experience drafting and probating wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Orange, Richmond and Dutchess.

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