Opinion
Case No. 120,451
03-07-2023
In the MATTER OF the ESTATE OF Dwight JONES, Deceased, Randy Brown, Appellant, v. Lisa Renea Chapman, Appellee.
Brett Agee, Samuel K. Davis, GARVIN, AGEE, CARLTON, P.C., Pauls Valley, Oklahoma, for Appellant, Dean Hart, Jr., HART & HART, Pauls Valley, Oklahoma, for Appellee.
Brett Agee, Samuel K. Davis, GARVIN, AGEE, CARLTON, P.C., Pauls Valley, Oklahoma, for Appellant,
Dean Hart, Jr., HART & HART, Pauls Valley, Oklahoma, for Appellee.
B.J. Goree, Presiding Judge:
¶1 Randy Brown claims he is the biological child of Dwight Jones, deceased, and that Dwight Jones unintentionally omitted him from his will. "When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section." 84 O.S. § 132. Relying on § 132, Randy Brown objected to the final account of Dwight Jones' estate.
¶2 Decedent's daughter, Lisa Renea Chapman, is the personal representative of the estate. She does not concede Randy Brown is a biological child. Further, she argues Dwight Jones intentionally omitted him by deliberately not providing for unknown lineal descendants, a class of persons that includes Randy Brown.
¶3 The appealed order states: "[I]t appears to the Court that the decedent, Dwight Jones, intentionally omitted all lineal descendants, known or unknown, and that Randy Brown is not entitled to any part of the Estate of the decedent, Dwight Jones." This is an appealable interlocutory order because it affects a substantial right in a probate cause. 58 O.S. § 721(10). Okla. Sup. Ct. Rule 1.60(h). After consideration of the appellate briefs and oral argument we review the cause de novo because the question involves interpretation and application of a statute. In re City of Durant , 2002 OK 52, ¶2, 50 P.3d 218, 220.
¶4 The purpose of § 132 is to protect the right of issue to share in the estate unless the will itself gives clear expression of an intentional omission. Crump's Estate v. Freeman , 1980 OK 80, ¶3, 614 P.2d 1096, 1097. When a will fails to provide for a child or issue it is presumed to have been unintentional. Id . at ¶8. The clearest way for a testator to intentionally omit a child is to identify the child by name and expressly state the named child is to receive nothing. Estate of James , 2020 OK 7, ¶19, 472 P.3d 205, 211. But a testator may also exclude a child by class. Crump's Estate , ¶6 (noting the will made no mention of the contestant by name or class). Since Dwight Jones did not name Randy Brown in his will we must determine from the four corners of the will whether Jones intentionally omitted him by class. The primary task is to give effect to the intent of the testator. Estate of Chester , 2021 OK 12, ¶18, 497 P.3d 284, 287.
¶5 In his will, Dwight Jones declared he has two children, Lisa Chapman and Kerri Jones. He named Joshua Chapman as his grandchild. He then stated, "I have no other children or grandchildren, natural or adopted, living or deceased." He gave property to his grandson and two nephews and directed that the residue be given to his daughter, Lisa Chapman. He disinherited his daughter Kerri Jones: "I am deliberately and intentionally not making any gift, devise, or bequest in this my Last Will and Testament to my daughter, KERRI DAWN JONES. It is my intention, and I specifically direct, that KERRI DAWN JONES shall receive nothing from this my Last will and Testament or from my Estate."
¶6 The will directs that Lisa Chapman be appointed as personal representative and it outlines her powers. In the last section of his will, Dwight Jones made the following declaration which is the focus of the parties' arguments in this appeal:
I have carefully considered each of the provisions contained in this my Last Will and Testament. This instrument contains my directions as to how and to whom I
want my property distributed after my death. I have carefully considered my family, including all of my known and unknown lineal descendants, together with all of my other family members, immediate and remote. If I have not provided for any person in this my Last Will and Testament, then I declare and emphasize that I have intentionally and deliberately not provided for that person.
¶7 In Estate of Woodward , 1991 OK 25, 807 P.2d 262, the court rejected the argument that the testator intended to omit her two grandchildren. An intentional omission was not supported by strong and convincing language and the grandchildren were omitted heirs under § 132. In her will, Flora Woodward, deceased, gave 75 acres to her son Jewell, other real estate and personal property to her son, Jerry, and one dollar to her daughter, Violet. The final sentence of the will provided: "All other persons are excluded from receiving anything from my estate, except as follows: To my daughter-in-law, Adria Cradduck, I leave my diamond and ruby rings." Flora Woodward had grandchildren (the offspring of a deceased child) and they brought an action claiming a share under § 132. The court held that the word "persons" in the phrase "all other persons are excluded" could not be a class of heirs which the testator intended to omit. According to the court, "The language utilized by Woodward in her will does not even remotely suggest that she had appellees in mind when she excluded ‘all other persons.’ Thus, the testator's intent to omit appellees does not appear upon the face of the will in strong and convincing language, and appellees are pretermitted heirs under Section 132." Woodward , ¶8.
¶8 Relying on Woodward , Randy Brown argues Dwight Jones did not clearly exclude him. He contends the omission language in paragraph 12 means nothing more than "If I didn't provide for any person, then it was intentional." Paragraph 12 is the end of the will, and Randy Brown maintains it is boilerplate and not reflective of the testator's intent.
¶9 Lisa Chapman relies on a different sentence in paragraph 12: "I have carefully considered my family, including all of my known and unknown lineal descendants, together with all of my other family members, immediate and remote." Ms. Chapman urges that Randy Brown is a member of the class "unknown lineal descendants" and the testator intentionally disinherited any persons in that class.
¶10 A testator's intention is to be ascertained from the words of the will and all parts of a will are to be construed in relation to each other to form one consistent whole. 84 O.S. §§ 152, 155. Words in a will are to be interpreted to give effect to every expression rather than to render any expression inoperative. § 159.
¶11 We do not agree that paragraph 12 of Dwight Jones' will is devoid of all expression of intent. Neither will we consider any one sentence of that paragraph in isolation to ascertain intent. Woodward does not provide a complete answer to the problem because, unlike Dwight Jones, the testator in Woodward did not indicate she had considered unknown lineal descendants. Dwight Jones' will is more specific. On the other hand, the will in Woodward did not suggest the testator "had appellees in mind when she excluded ‘all other persons.’ " Woodward , ¶8. Likewise, nothing in Dwight Jones' will suggests he had Randy Brown in mind when he executed his will. Randy Brown asserts his mother was never married to Dwight Jones. The will does not indicate whether or not Dwight Jones knew of Randy Brown's existence.
¶12 Woodward does not establish a rule that a testator must have a specific individual "in mind" in order to effectively omit them. The point of law is that the intent to omit a child must appear by strong and convincing language. Woodward , ¶8. As suggested in Estate of Chester , 2021 OK 12, ¶14, 497 P.3d 284, 288, a testator may declare in their will that any child claiming to be pretermitted will take nothing. Another recognized method of expressing intent to omit a child is "specifically denying the existence of members of a class to which the claimant belongs coupled with a complete disposition of the estate." Id . Dwight Jones did not deny he had children but he denied he had children other than Lisa Chapman and Kerri Jones. He made a complete disposition of his estate and declared he had considered his family, including all of his known and unknown lineal descendants. He didn't deny the existence of other lineal descendants, but he declared that if he hadn't provided for any person it was intentional and deliberate.
¶13 Returning to the language of the statute, when a testator omits to provide in his will for a child, unless it appears that such omission was intentional, such child must have an intestate share. The legislature intended that omitted children be provided for, unless it appears the testator intended to omit them. We agree with the district court. It appears from the language of his will that Dwight Jones intended to omit to provide for unknown lineal descendants.
¶14 In summary, Dwight Jones did not provide for Randy Brown in his will. It appears that the omission was intentional because he denied having children other than Lisa Chapman and Kerri Jones, he made a complete disposition of his estate, he described a class of persons composed of his known and unknown lineal descendants, and emphasized that he intentionally and deliberately omitted to provide for all persons in such class. Randy Brown claims to be a known or unknown lineal descendant. Therefore, the trial court ordered Randy Brown is not entitled to any part of the estate of Dwight Jones. The order is affirmed.
SWINTON, J., and MITCHELL, C.J., (sitting by designation) concur.