Estate of Turkington

California Court of Appeal Sep 29, 1983 No. 7655Published

Before: Woolpert

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Holding. The court held that an adult adoptee who was previously named in a will as a niece is a pretermitted heir because the change in status to child is a momentous event that must be contemplated on the face of the will to avoid revocation.

Issues

Does the adoption of an adult niece, who was previously named in a will, render her a pretermitted heir?
Does a legacy to a person identified by a prior relationship (niece) satisfy the requirement to provide for a child under the pretermitted heir statute?

Disposition. affirmed

Quotations verified verbatim against the opinion

“the change in status from niece to child is so momentous that the testator must make a new testamentary disposition absent a clear statement in the existing will that it was executed in contemplation of the change of status.”

“we hold that Joan was not provided for as the testator's child and was a pretermitted heir.”

147 Cal.App.3d 590 (1983) 195 Cal. Rptr. 178 Estate of ROBERT K. TURKINGTON, Deceased.

JOAN SANTOS, Petitioner and Respondent,

JANE BUCHANAN, Objector and Appellant.

Docket No. 7655. Court of Appeals of California, Fifth District.

September 29, 1983. [591] COUNSEL

Eric G. Helgesen for Objector and Appellant.

McKinney, Enes & Wainwright and James A. Wainwright for Petitioner and Respondent.

OPINION

WOOLPERT, J.

(1a) When a single man adopts one of two adult nieces he has raised since childhood, does the newly acquired daughter become a pretermitted heir, thereby nullifying his previously executed will in which he left his estate equally to his two named nieces? We answer affirmatively because the change in status from niece to child is so momentous that the testator must make a new testamentary disposition absent a clear statement in the existing will that it was executed in contemplation of the change of status.

Jane and Joan are natural sisters who were raised by their uncle, Robert Turkington. On November 26, 1973, Robert executed a will by which he left his entire estate to his sister, directing that the estate be "used for the care, support, maintenance and education of my nieces, JANE BEATRICE [592] TURKINGTON and JOAN ELLEN TURKINGTON." No further limitations or contingencies were mentioned.

Robert's sister died shortly thereafter, triggering the next clause of the will: "If my sister should predecease me, then I hereby give, devise and bequeath all of my estate to my nieces, JANE BEATRICE TURKINGTON and JOAN ELLEN TURKINGTON."

Estate of Turkington

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OPINION

WOOLPERT, J.

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