Estate Planning Tips For Lawyers and Their Clients

John O’Grady, O’Grady Law Group

The Rules of Arbitration are Not Arbitrary

Some people choose to settle legal disputes using arbitration since it is much less expensive and more private than going to court.

That’s because a qualified arbiter considers the evidence presented by both parties behind closed doors before issuing a ruling that each party agrees to abide by beforehand, whatever the outcome. But plaintiffs and defendants can only be compelled to use arbitration when both have agreed to it.

Frances McArthur wanted her daughters Pamela, Kristi and Deborah to settle any disagreements after her death using “Christian Dispute Resolution” – a type of arbitration based on Biblical teachings – so she added a clause in her trust to that effect. After she died, Pamela sued Kristi, alleging financial elder abuse against their mother, and Kristi sought to settle the matter in arbitration. But because Pamela had never signed an arbitration agreement, the Court of Appeal ruled that she could take her sister to court.

If you want your beneficiaries to settle disputes after you are gone using arbitration rather than the courts, ask them to sign an arbitration agreement. McArthur v McArthur (2014) 224 CA4th 651

 

No Will + No “Openly Held Out” Paternity = No Inheritance

“Intestacy” is when someone dies without a will—which can have serious consequences for would-be heirs.

The recent Stennett v. Britel case all too tragically illustrates the devastating impact this can have on children born outside of marriage and never “openly held out” as offspring by a parent.

DNA tests showed a 99.9996 percent likelihood that Amine Britel impregnated Jackie Stennett when they were students at Harvard in 2000. But Britel, a cyclist who competed in the 1992 Barcelona Olympics, repeatedly told Stennett he wanted nothing to do with either her or their daughter because his Moroccan-Muslim upbringing dictated that fathering a child out of wedlock was socially taboo, fearing disinheritance from his wealthy family.

Stennett subsequently neglected to seek an adjudication of paternity because she’d held out hope that Britel would eventually acknowledge his fathership. He didn’t: but after the 41-year old Britel was fatally run down by a texting drunk driver while cycling in 2011,  Stennett sought to declare herself Britel’s estate administrator and their child his sole heir under Probate Code §6453(b)(2). Then Britel’s sister submitted a counter-petition to be her brother’s estate administrator.

In the end, and on appeal, the court ruled in the sister’s favor because Britel had never told his family that he’d fathered Stennet’s child. Nor had he ever stated his paternity “in public view”—even though he’d privately acknowledged this in a private email to Stennett. Judges deemed Britel’s apparent biological paternity irrelevant because he never indicated he wanted his daughter to inherit his estate.

The legal lesson here is for single mothers: encourage your child’s father to hold the child out as his own, and consider filing a paternity action. Consult a qualified estate planning lawyer to protect your child. Estate of Britel (2015) 236 CA4th 127

 About the author:

John O‘Grady, O’Grady Law Group, was the 2012 chair of BASF’s Estate Planning, Trust & Probate Section.