MacDonald v. Mowry
3 Cal. Daily Op. Serv. 2567, 107 Cal. App. 4th 338, 131 Cal. Rptr. 2d 855 (2003)
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Rule of Law:
Under California Probate Code § 21620, the statutory protection for an 'omitted child' applies only to children born or adopted after the execution of a decedent's testamentary instruments. A child who was known and living at the time a will was executed is not protected by this statute if they are not mentioned in the will.
Facts:
- In 1974, Paul Randall Mowry, Jr. adopted Toni Mowry MacDonald.
- On December 7, 1990, Mowry executed a holographic (handwritten) will.
- The will stated that Mowry's entire estate was to be given to his brother, Joe Allen Mowry.
- The will made no mention of Mowry's adopted daughter, Toni Mowry MacDonald.
- Mowry died on September 25, 2000.
- MacDonald stated that she had a close relationship with Mowry from the time he married her mother until his death.
Procedural Posture:
- Joe Allen Mowry, the decedent's brother, petitioned the probate court to probate the decedent's holographic will.
- Toni Mowry MacDonald, the decedent's adopted daughter, filed a petition in the probate court to determine her entitlement to distribution as an omitted heir.
- The probate court (trial court) denied MacDonald's petition, concluding she was not an omitted heir under Probate Code § 21620 because she was adopted before the will was executed.
- The probate court granted Joe Allen Mowry's petition for final distribution of the estate.
- MacDonald (appellant) appealed the trial court's order to the California Court of Appeal.
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Issue:
Does California Probate Code § 21620, which protects a child born or adopted after the execution of a will from unintentional omission, also apply to a child who was adopted before the will's execution and was not mentioned in it?
Opinions:
Majority - Hastings, J.
No. The protections of California Probate Code § 21620 do not extend to a child adopted before the execution of the decedent's will. The court reasoned that the plain language of § 21620 explicitly limits its application to a child "born or adopted after the execution of all of the decedent’s testamentary instruments." The court rejected the appellant's argument that this section should be read in light of older public policy that protected against unintentional disinheritance. The court, citing Estate of Della Sala, explained that the legislature deliberately changed the law by repealing the former, broader statute (§ 90) and replacing it with the current, more restrictive scheme based on the Uniform Probate Code. This change shifted the legal landscape, establishing that for a child living when a will is made, omission is presumed to be intentional. Therefore, § 21621, which provides exceptions to the omitted child rule, is irrelevant because a child adopted before the will's execution does not qualify under § 21620 in the first place.
Analysis:
This decision solidifies the modern, narrower interpretation of California's pretermitted heir statutes, marking a definitive break from the state's prior public policy which was more protective of omitted children. The case clarifies that the protection is not a broad guard against unintentional disinheritance but is strictly limited to the scenarios explicitly described in the statute: children born or adopted after the will is made, or children the testator mistakenly believed were dead. This ruling reinforces the principle of testamentary freedom, allowing a testator to disinherit a known, living child by simple omission, without needing an express disinheritance clause. Consequently, children who existed when a will was executed and were omitted from it cannot use the omitted heir statute and must instead rely on other grounds, such as undue influence or lack of capacity, to challenge the will.
