Authored by: Michael C. Levy, Esq.

The importance of carefully drafted language in estate planning documents increases as the types of potential takers from an estate becomes more complex and varied.  This is especially true when the testator of a will or grantor of a trust has children from previous marriages or born out of wedlock.  A recent Georgia ruling illustrates how conflicting and confusing language may force a court to determine the testator’s intent to the possible detriment of one or more children.

In Hood v. Todd, the Supreme Court of Georgia were tasked with determining whether a child born out of wedlock would have any right to take under her father’s will.  Regina Gordon Todd was the biological daughter of John E. Buffington, the product of an extramarital affair between Buffington and Todd’s mother.  Despite the fact that Buffington acknowledged Todd as his daughter, his will contained no specific bequests to her.  Buffington did acknowledge his two other daughters, Beth and Ginger, and included a bequest of his estate to his surviving children.  “Children” were defined as his lawful blood descendants.

The Supreme Court held that Buffington had shown a clear intention to leave the residue of his estate to Beth and Ginger alone.  Using the standard rules of will construction, by reviewing the ‘four corners’ of Buffington’s will, the Court found that despite Buffington’s acknowledgement of Todd and the support given to her during his lifetime, the mention of Beth and Ginger but not Todd proved Buffington’s intent to exclude her.  Relying on several non-Georgia cases, the Court further held that a child born out of wedlock should not be included in the definition of ‘lawful’ blood descendants.

However, in his dissent, Justice Harris Hines questioned the majority’s definition of “lawful.”  By using outside jurisdictions to establish this definition, Justice Hines warns that the Court may be setting a dangerous precedent that could harm children born out of wedlock.  Hines concludes that it should be the Georgia General Assembly, not the Court, who defines whether a child should be able to inherit from their biological parents.

The Hood case illustrates the need for careful drafting of estate planning documents specifically for each person’s unique circumstances.  Wills and trusts should not be ‘one size fits all’ and by treating them as such, families may find their loved ones’ wishes determined by a court rather than by the documents they sign.