A recently decided unpublished appellate opinion focused on whether or not a child born out of wedlock had standing, as a child, to contest the validity of his father's trust.
The trial court found that the son did not having standing.
"The trustee moved for an evidentiary hearing to determine plaintiff's standing before proceeding to a trial on the merits. The trustee asserted that plaintiff could not show he is Smith's son and, therefore, has no standing to contest the validity of the trust. Following an evidentiary hearing on June 13 and 14, 2016, the court found that "[a]ll presented testimony was credible, and clearly established that [plaintiff] was decedent's biological son." But the court concluded that paternity of a child born out of wedlock must be "established by clear and convincing evidence that the father has openly held out the child as his own." (§ 6453, subd. (b)(2).) "While decedent openly and publicly acknowledged [plaintiff] to be his son on several occasions, this occurred only within [plaintiff's] family and social circles. Decedent never so acknowledged [plaintiff] in [decedent's] own family and social circles, such that those most likely charged with administering decedent's estate had no knowledge of [plaintiff] or his relationship to the decedent. The legislative intent behind [Probate Code section] 6453(b)(2), namely promotion of the efficient and expeditious administration of decedent['s] estates, is not advanced in this case, and so [plaintiff] does not have standing to pursue his trust contest."
The trial court's decision was reversed on appeal.
"Decedent Smith did not admit paternity to his close relatives, as in Burden. Nor did Smith admit paternity only to the mother's child and his best friend, as in Britel. Smith admitted paternity in one social circle and concealed it from another. Although Smith concealed his paternity from his wife, marital children, parents and friends, he "openly and publicly acknowledged" plaintiff to be his son within plaintiff's "family and social circles," as the trial court found. Smith acknowledged his paternity to a wide array of plaintiff's family and friends and never asked plaintiff's mother "to deny" his paternity. At plaintiff's college graduation ceremony and party, Smith approached plaintiff's friends and freely introduced himself as plaintiff's father."
Interestingly, the son was challenging the trust's validity, inter alia, on the theory that his father lacked capacity because "he suffered from concussive traumatic encephalopathy and other cognitive impairments."
CTE is the degenerative brain disease that has afflicted numerous professional and college football players.
Portero-Brown v. Smith Javaneri, Alameda County Superior Court case # RP15786933.
