The Oklahoma Bar Journal November 2024

the testator’s intent to omit. 16 The default position, both in statute and the case law, appears to be that any child left out of a will is a pretermitted heir. The only way in which this is affirmatively contradicted is the presence of an intentional omission by the testator. 17 This can be in the form of expressly leaving nothing to an individual or leaving them a nom inal amount, but it must be inten tional and in the “four corners” of the will. This “four corners” doctrine disallows even clear parol evidence that would indicate the intent of a grantor, unless there are ambiguities on the face of the will created either by text or external facts. 18 In Crump v. Freeman, the court ignored the testatorial dispo sition of the entire estate. The will did not grant shares of the estate to certain heirs. 19 This is because if a legal heir is not expressly omit ted, they are considered uninten tionally omitted, and if a legal heir is unintentionally omitted, then they are considered pretermitted. 20 With the rise of commercial DNA testing through companies such as 23andMe and Ancestry, practitioners have speculated that these relatively novel tests could

have an impact on probate law in the discovery of pretermitted heirs. The Oklahoma Supreme Court held otherwise. The use of commercial DNA testing has become a method of discovering ancestors, relatives and descen dants, and courts have held that it is just that, another tool for dis covering pedigree. This has been made abundantly clear in a recent Oklahoma Supreme Court case, Felts v. Massey , in which James Felt, the appellant in the case, discov ered himself to be the progeny of Basil Georges, the decedent in this case. The decedent had been dead for 15 years, his will already admitted to probate and a final decree already entered. The appel lant discovered his connection to the decedent by complete accident when the results of a commercially available DNA test revealed that both he and someone known to be a child of the decedent shared the same father. 21 Based on the DNA results, the appellant petitioned to be declared a pretermitted heir in order to receive an intestate share of the estate. 22 However, the court ruled that the decedent’s will was conclusive. Fifteen years after the decedent’s death was far beyond

consideration. Biological children born out of wedlock are generally treated the same as biological chil dren born into wedlock, with an exception regarding the father of the child. Only when the father in some way acknowledges the child to be his own – by marrying the mother, receiving a court decree declaring he is the father or sign ing a document stating he is the father – is the child a valid heir. 14 Another situation involves pretermitted children known about by courts or executors. Not only do pretermitted heirs have a right to an intestate share of an estate, but should a court and/or the executor of an estate know about the heir, courts and executors of estates are obligated to protect the interests of the pretermitted heir. Executors must alert courts to the existence of a pretermitted heir, and courts must protect the interest of this pretermit ted heir by distributing their “statu torily entitled share” to them. 15 A logical question arises if the testator has given the entire estate to a named beneficiary. Is such a gift sufficient evidence of the testa tor’s intent to disinherit all others? Oklahoma courts have said no, there must be further evidence of

As with most subjects of law, the subject of pretermitted heirs has had to grapple with changing technology and how people learn information.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL