Santos v. Buchanan

Opinion

WOOLPERT, J. 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.”

On September 15, 1977, approximately four years after the will was executed, Robert adopted Joan. Both had signed an agreement on August 25, 1977, indicating that they lived at the same place, desired to assume the relationship of parent and child, and sought to subject themselves to “all the duties and responsibilities of that relation.”

On January 3, 1982, Robert died without changing his will. Joan was found to be a pretermitted heir and as sole surviving child, takes the entire estate pursuant to Probate Code section 222 (all further statutory references are to the same code). Jane appeals, contending first, that Joan is not a pretermitted heir because she was sufficiently provided for in the will, and second, that Joan’s efforts to avoid the consequences of the will provisions amounted to a contest which should deprive her of all but one dollar pursuant to a forfeiture clause.

On first impression it might appear that Jane is right. Both women were close to the testator since they were raised by him. By his will he sought to protect them while his sister survived, and then left them everything he owned in equal shares. He identified them by true name and relationship. It could also appear that his only oversight was not anticipating that one of the nieces would become his child by adoption. Because of the existing family ties, the adoption might appear to be a superficial event. However, we are not permitted to speculate why only one of the nieces was adopted or to measure the importance of the adoption to the testator. In fact, we suspect Robert Turkington knew far less about the effect of the adoption on his will than the attorneys who have submitted the question to us.