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Estate of Seward

Supreme Court of Alaska

June 2, 2017

Estate of JAMES V. SEWARD, Deceased.

         Appeal from the Superior Court No. 3AN-13-02105 PR of the State of Alaska, Third Judicial District, Anchorage, Erin B. Marston, Judge.

          Vincent E. Mock and Gaylene L. Mock, pro se, Lexington, Kentucky, Appellants.

          Donna C. Willard, Personal Representative of the Estate of James V. Seward, Anchorage, Appellee.

          Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.


          WINFREE, Justice.


         A decedent left a will stating he had no children. But during probate proceedings a man in his early 30s claimed to be the decedent's son, requested genetic testing on the decedent's cremated remains, and filed numerous motions in an attempt to share in the decedent's estate. The man's mother also filed numerous motions in the proceedings, claiming to be a creditor of the decedent's estate and seeking recovery of child support from the man's birth to his 18th birthday. After previously signing orders denying the motions based on the probate master's reasoning that paternity determinations may not be made in estate proceedings, the superior court ultimately ruled that: (1) laches barred the man's and his mother's efforts to establish paternity; and (2) because paternity had not been established, neither the man nor his mother had standing to pursue a claim in the estate proceedings.

         We disagree with the probate master and superior court's underlying conclusion that a paternity determination may not be made in estate proceedings. We also disagree with their conclusion that a laches defense could apply in this context. We nonetheless affirm the superior court's decision with respect to the man's mother on the alternative ground that her putative creditor claim - the only basis by which she could be an interested person in the estate proceedings - unquestionably is barred by the applicable statute of limitations. But if the man proves to be the decedent's son he has, at a minimum, certain statutory rights that: (1) may be established through declaratory judgment in the probate proceedings; and (2) might not be barred by a statute of limitations. Because the statute of limitations defense to the man's claim was briefed only in limited fashion in the superior court and was not ruled on by that court, and because the issue has not been adequately briefed to us, we: (1) explain in detail how the man may be entitled to a statutory allowance from the estate; and (2) order that supplemental briefing be filed to assist us in resolving whether a statute of limitations may bar the man's recovery from the estate.


         James V. Seward executed a will on September 11, 2008. In it Seward stated: "I hereby declare that I am a single man and that I have no children, nor do I have any deceased child or children with lineal descendants now living." The will also provided: "If any relative, or person claiming to be an heir or relative, or any other person whomsoever, should attempt by legal action or otherwise, to contest this Will, I hereby give [such person] the sum of $ 1.00" Seward appointed Donna Willard, the attorney who prepared the will, as his estate's personal representative; he instructed that his body be cremated and the ashes scattered on the mountains overlooking Anchorage; and he expressed how he wanted his estate distributed. Seward died in Anchorage in May 2013 at age 90.

         In August 2013 Willard applied for informal probate of Seward's will and appointment as the estate's personal representative.[1] Willard stated that she believed the will was "validly executed, " and that she was "unaware of any instrument revoking [the] will." But she also stated that the will was executed "the 11th day of September 2011" when in fact the will was executed on September 11, 2008. In September Willard's application for informal probate of the will "dated September 11, 2011" and appointment as personal representative was approved by the probate master.

         In October Vincent Mock - self-represented-filed a motion requesting genetic testing on Seward's ashes to prove he is Seward's son. The following month he asked that Seward's estate not be distributed until he could establish Seward's paternity. Willard opposed both motions, contending that Seward's ashes already had been scattered according to his will and that even if Vincent could prove Seward's paternity, Vincent would not be entitled to estate assets because he was not mentioned in Seward's will, was not a minor child entitled to statutory protection, [2] and was not a pretermitted heir.[3] In reply Vincent insisted the urn and airplane used to transport Seward's ashes still could contain ash remnants. Vincent stated that Seward knew Gaylene Mock, Vincent's mother, bore Seward a child and that the assertion in Seward's will that he had no children was the result of memory loss or coercion. Vincent argued that the will was invalid, requiring intestate distribution to him as the sole heir, or alternatively that he was a pretermitted heir because he was "unintentionally ... omitted from the will" and was not "specifically disinherited."

         The probate master recommended denying Vincent's motion for ashes testing, [4] stating: "Probate of [a] last will is not [the] proper venue for [a] paternity contest. Vincent Mock is not an interested party in [the] estate." The probate master also recommended denying without prejudice Vincent's motion regarding disbursal of Seward's estate, stating again that an "[e]state case is not [the] proper venue for [a] paternity contest[, ] and Mr. Mock lacks standing because he is not an interested party in [the] estate case." Finally, on a third recommended order denying both motions, the probate master reiterated that a paternity determination is not appropriate in estate proceedings, adding that even if Vincent were Seward's son, "he is not an heir according to [the] last will." In December the superior court signed all three recommended orders without comment.

         Meanwhile in November Gaylene-also self-represented-filed a motion requesting that the court acknowledge Seward as Vincent's father. Gaylene stated that she lived with Seward "off and on for thirteen years" and that Seward knew she was pregnant with his child because she "told him so." In opposition Willard argued that Gaylene should have filed a separate superior court action and not a motion in the estate proceedings. Willard also contended that Gaylene had "no standing ... to establish paternity on behalf of her adult son"; Gaylene was not the real party in interest for seeking a paternity determination or the child support alleged now to be due Vincent; and Gaylene's motion was time-barred under even the most liberal ten-year statute of limitations. The probate master recommended denying Gaylene's motion without prejudice because "[a] probate proceeding is not [the] correct venue for [a] petition to establish paternity, " Gaylene "lack[ed] standing as [an] interested party, " and Vincent "is not an heir" under the will. In December the superior court signed the recommended order without comment.

         Also in December Vincent filed a motion to conduct genetic testing on Seward's sister in California, contending that the testing would establish Seward as his father. Willard opposed the motion, arguing that the estate proceedings were not appropriate for a paternity determination, the applicable statute of limitations had passed, and Alaska's long-arm statute was not sufficient to establish personal jurisdiction over the sister. Vincent replied that because the sister was a beneficiary under Seward's will, the court could establish personal jurisdiction. In January 2014 the probate master noted that in December 2013 the court had denied Vincent's motion for genetic testing, referring to the order denying genetic testing on Seward's ashes. The master made no specific recommendation regarding Vincent's motion for genetic testing of Seward's sister, and it does not appear the superior court took further action on the motion.

         Gaylene filed a creditor claim[5] against the estate in March, claiming Seward's estate owed her "20% of.. . Seward['s] yearly [i]ncome from the year 1982 to the year 2000" for child support. Willard disallowed the claim[6] based on lack of standing, the applicable statute of limitations, and failure to present the claim against the estate within the required time period.[7] Gaylene then filed a petition to allow her claim.[8]Willard opposed Gaylene's petition, arguing: "paternity has never been established, this is the wrong forum in which to establish it, [and] it is too late to establish it both factually and because of the prejudicial delay in waiting so long to try to do so." In her reply Gaylene contended that Willard had no actual authority to deny her claim because the 2008 will was not valid, as it had not been accepted for probate; rather a "September 11, 2011" will had been accepted, but it had been lost. The superior court apparently did not rule on Gaylene's petition, although her proposed order was stamped "not used" in the probate master's signature block.

         Vincent and Gaylene filed a number of other motions not relevant to this appeal, and Willard eventually sought to preclude Vincent and Gaylene from filing further motions. Willard argued that Vincent and Gaylene "persist in filing ill-considered motions, wasting the time and resources of both the Court and the Estate" even though they "are [not] interested parties and hence they have no standing to inject themselves into this proceeding." Gaylene responded that Vincent was an interested person as Seward's son and she was an interested person as a creditor.[9] Willard replied that Gaylene had no proof of paternity and that Gaylene had not filed her child support claim within the four-month window provided by AS 13.16.460(a)(1). Willard again reminded the court it already had ruled that Vincent and Gaylene were not interested persons in the probate proceedings.

         In a three-page report issued in late March the probate master recommended precluding Vincent and Gaylene from filing further motions because neither was an interested person in the estate proceedings. The master noted there had been no paternity determination despite the lengthy opportunity to obtain one before Seward's death. The master also reasoned that waiting until after Seward's death to bring their claims "work[ed] substantial prejudice on his estate, " justifying the application of laches to bar the claims.

         Vincent objected to the master's report, arguing that Seward's 2008 will was invalidly admitted to probate because the order accepting Seward's will for probate expressly referred to a "September 11, 2011" will, and not a 2008 will. Vincent therefore suggested that Seward had a 2011 will that had been lost and argued that the referenced 2011 will may have mentioned him or his mother. Vincent further argued that he always had intended "to establish paternity with [his] father . . . [but] just did not expect him to die." Gaylene also objected to the master's report, arguing that it was wrong to rely on the 2008 will when the order accepting a will for probate referred to a 2011 will. Gaylene stated that she and Seward had planned on marrying but their plans fell through, and that she had omitted Seward's name from Vincent's birth certificate and not sought child support because Seward "had a violent temper" and would often hit her.

         Also in March Vincent and Gaylene filed motions to remove Willard as the personal representative of Seward's estate. Their arguments again centered around the possible existence of a 2011 will; Vincent questioned whether in a September 11, 2011 will Seward disposed of his assets differently than in the September 11, 2008 will that had been admitted for probate. Willard responded: "Unfortunately, in my application, I made a typographical error utilizing the number 11 for both the day and the year [of Seward's will]. In fact, as the Will evidences, its date of execution was September 11, 2008." In reply Vincent again argued that Willard apparently had probated the wrong will and that a September 11, 2011 will actually existed or had been destroyed by Willard. In May the superior court denied without explanation the motions to remove Willard as personal representative.

         In March Vincent also had asked the court to recognize him as Seward's pretermitted heir. Vincent argued he had been "accidentally overlooked" when Seward created his will but had not been specifically disinherited. Vincent also argued he was a "rightful" and "only" heir entitled to Seward's entire estate. Willard responded by pointing out that a pretermitted heir must be born after the will's execution, [10] but Vincent was born more than 25 years before Seward executed his will. She also argued that if Seward had been aware of Vincent, Seward declined to acknowledge Vincent was his son by declaring in his will that he had no children deceased or living. Citing the provision of the will providing one dollar to any person who contests it, Willard also contended Seward "made it plain" that the will's provisions "were not to be attacked by any relative or person claiming to be an heir or relative." In early May the superior court denied without explanation Vincent's motion seeking recognition as a pretermitted heir. The superior court in early May also adopted the probate master's March report as its order, precluding Vincent and Gaylene from filing further motions because they were "not interested parties in the estate proceeding." Vincent petitioned for our review of this order, emphasizing both that he was Seward's son and the significance of the alleged will date discrepancy, contending that (1) there existed somewhere a valid 2011 will and (2) the 2008 will had not been effectively registered for probate. Vincent also argued that his mother was a creditor and qualified as an interested person in the estate proceedings. Willard opposed the petition, largely reiterating her arguments made to the superior court. Because the superior court's order was a final judgment as to Vincent (and Gaylene), we converted Vincent's petition for review into an appeal and ordered full briefing. Gaylene filed a notice of participation and joined Vincent in the appeal.


         A. The Probate Statutes Contemplate That A Paternity Adjudication May Be Made During Estate Proceedings.[11]

         The superior court repeatedly adopted the probate master's recommendations to deny Vincent's and Gaylene's paternity-related motions on the ground that paternity cannot be adjudicated during probate estate proceedings. But when the superior court acts as the probate court[12] it "has 'jurisdiction over all subject matter relating to' decedents' estates... 'to the full extent permitted by the constitution, ' "[13] and "when exercising probate jurisdiction a superior court 'should continue to exercise its jurisdiction' to resolve 'questions ancillary' to the probate proceedings."[14] By statute that subject matter jurisdiction expressly extends to the "determination of heirs and successors of decedents."[15]

         Alaska Statute 13.12.114(a) also provides that "for purposes of intestate succession by, through, or from a person, an individual is the child of the individual's natural parents, regardless of their marital status, and the parent and child relationship may be established as indicated under AS 25.20.050." In relevant part AS 25.20.050(a) provides: "A child born out of wedlock is legitimated and considered the heir of the putative parent when ... the putative parent is determined by a superior court without jury or by another tribunal, upon sufficient evidence, to be a parent of the child." Alaska Statute 13.12.114(d) further provides that "[t]o the extent there is a conflict between this section and... AS 25.20.050 ..., [AS 13.12.114] controls."[16] It is clear AS 13.12.114 contemplates that the probate court may enter a judgment regarding the parent and child relationship.

         Alaska Statute 13.12.114 is based on a Uniform Probate Code provision intended to provide that an illegitimate child be treated as a child of the father when parentage is sufficiently established under the Uniform Parentage Act:[17]

If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person,
... a person is the child of its parents regardless of the marital status of its parents and the parent and child relationship maybe established under the [Uniform Parentage Act].[18]

         It is evident that both the current and former probate statutes addressing paternity were adopted from Uniform Probate Code provisions contemplating that paternity determinations could be made after the putative father's death. But Alaska did not adopt the Uniform Parentage Act[19] - which provides that "[a] proceeding to adjudicate the parentage of a child having no presumed, acknowledged, or adjudicated father may be commenced at any time"[20] - and when AS 13.12.114 was created from the Uniform Probate Code language it instead contained the reference to AS 25.20.050. Although Willard argues that there can be no paternity determination because Seward is deceased and AS 25.20.050 requires a living defendant to establish paternity, nothing in AS 25.20.050 compels the conclusion that paternity determinations may be made only against living persons. The statute simply states that "[a] child born out of wedlock is legitimated and considered the heir of the putative parent when ... the putative parent is determined by a superior court without jury... upon sufficient evidence, to be a parent of the child."[21]

         Given that: (1) when acting as a probate court the superior court has broad subject matter jurisdiction relating to decedents' estates, including matters ancillary to the estate proceedings; (2) probate courts are expressly empowered to determine the "heirs and successors of decedents"; and (3) AS 13.12.114 invites paternity determinations during estate proceedings in the manner set forth in AS 25.20.050(a), it was error to adopt the probate master's recommendations to deny Vincent's and Gaylene's paternity-related motions to the extent those denials were based on the specific ground that a paternity determination cannot be made during estate proceedings.

         B. Because The Request For An AS 13.12.114 Paternity Determination Was For Declaratory Judgment With Underlying Legal Claims, Laches Was Not An Available Defense.[22]

         As stated above AS 13.12.114 contemplates that the probate court may enter judgment regarding the parent and child relationship. This is a form of declaratory judgment.[23] Although courts have the authority to declare rights without granting separate legal or equitable remedies, when deciding whether a request for declaratory judgment and any associated relief is time-barred, courts must look to the nature of the relief to determine whether laches or a statute of limitations applies.[24] If the relief is equitable, laches applies; if the relief is legal, a statute of limitations applies.[25] Here the request for declaratory judgment was associated with Gaylene's creditor claim and with Vincent's assertion of statutory property rights, both legal in nature. Nothing about the request for declaratory judgment and associated relief was equitable in nature.

         Courts have no inherent power to decide whether it would be equitable to adjudge someone a father.[26] And we have long held that actions to collect child support are not equitable, but rather are legal in nature.[27] Although the superior court may apply equitable principles when acting under its probate jurisdiction, [28] that does not include the power to employ laches to bar a legal claim.[29] Laches is inapplicable in this context, and it was error to apply it to preclude Vincent and Gaylene from pursuing their requests for declaratory and related legal relief in the probate proceedings.

         C. Gaylene's Creditor Claim Is Unquestionably Barred By The Statute Of Limitations, [30] And The Superior Court's Ruling That Gaylene Is Not An Interested Person In The Estate Proceedings Is Affirmed On This Alternative Ground.[31]

         Gaylene asserts she is an interested person in the estate proceedings because she is a creditor;[32] she seeks to establish that Vincent is Seward's son in connection with her legal claim for child support allegedly due her from 1982 through 2000; and she seeks recovery from the estate based on this alleged pre-death obligation. The ten-year statute of limitations of AS 09.10.100, [33] subject to tolling during the child's minority under AS 09.10.140, [34] applies to claims for past child support.[35] Assuming Vincent is Seward's son and Gaylene has standing to assert her claim for long-past-due child support, [36] and given Gaylene's assertion that she knew Seward was Vincent's father when Vincent was born, the statute of limitations on Gaylene's claim expired years before Seward died. For this reason Willard's disallowance of Gaylene's creditor claim on the statute of limitations ground should have been sustained by the superior court, and we so hold. And because Gaylene's only basis for asserting that she is an interested person in the estate proceedings is her creditor claim, the superior court's conclusion that she is not an interested person in the proceedings is affirmed on this ground.

         D. If Vincent Is Seward's Son, He Is An Interested Person In The Estate Proceedings.

         Alaska Statute 13.06.050(24) expressly includes a decedent's children as persons interested in the decedent's estate.[37] This makes abundant sense, as there are several ways in which a decedent's child may be entitled to a portion of the decedent's estate. For example a child is an intestate heir absent a valid will or to the extent a valid will does not dispose of the entirety of the decedent's estate.[38] A child born after the execution of a will may be a pretermitted heir entitled to a share of the decedent's estate passing under the will.[39] And a child may have the right to certain statutory allowances from the decedent's estate notwithstanding the existence of a valid will otherwise fully disposing of the decedent's estate.[40] For these reasons notice of estate proceedings must be given to a decedent's child[41] - notice allows a decedent's child the opportunity to protect statutory rights and contest the validity of a will.

         With this in mind we first address the merits of the parties' substantive arguments whether, if Vincent is Seward's son, Vincent might have a claim against the estate. Vincent argues on appeal that the 2008 will is invalid and he may be entitled to inherit under an alleged 2011 will; that even if the 2008 will is valid he is entitled to recover under the will as a pretermitted heir; and that he has the legal right to statutory allowances notwithstanding the existence of a will. Willard asserts that the 2008 will is valid and properly being probated; that Vincent cannot be a pretermitted heir under the will; and that Vincent is barred from seeking recovery under other language of the will. Willard does not address Vincent's claim to statutory allowances.

         1. The errors on the application and order for admission of Seward's 2008 will to informal probate are immaterial - the will accepted for probate is the 2008 will.

         There can be no dispute that Seward executed a will in 2008 and that this will was presented for probate. Willard later stated that she made a date mistake in her paperwork opening the estate, and Vincent offers no evidence to refute Willard's explanation. Vincent cannot seize solely on a scrivener's error in accompanying paperwork to invalidate an otherwise valid will facially complying with the requisite statutory formalities.[42]

         We have recognized that honest mistakes are sometimes made in court documents and that courts should be free to correct them. Alaska Civil Rule 60(a), for example, provides: "Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders."[43] Although Willard should have requested that the superior court correct the date mistake in the order accepting the 2008 will for probate, implicit in its denials of Vincent's various motions regarding the mistake is the court's acknowledgment that the mistake was simply a mistake. Other than the noted date discrepancy, no evidence was presented suggesting the actual existence of a 2011 will - the paperwork error alone does not affect the acceptance of Seward's 2008 will for probate. We therefore affirm the superior court's acceptance of the 2008 will for probate, its appointment of Willard as the personal representative, and its rejection of Vincent's arguments about an alleged 2011 will.[44]

         2. Vincent is not a pretermitted heir under the 2008 will and has no claim under the will.

         The superior court ruled that Vincent is not a pretermitted heir under the 2008 will. Vincent argues that he is a pretermitted heir because Seward did not intentionally disinherit him but rather "inadvertently forgot[]" to include Vincent in his will.

         To qualify as a pretermitted heir eligible to "a share in the [testator's] estate, " the testator's omitted child must be "born or adopted after the execution of the will."[45] Analyzing a former version of the pretermitted heir statute, we explained that "[t]he plain language of the statute indicates that [it] applies only to the testator's children . . . born or adopted after the execution of the will."[46] We explained that this statute's purpose was "not to compel parents to make testamentary provision for children, but to prevent the consequences of forgetfulness or oversight."[47] It was meant to protect a testator's children "against an unintentional omission in a will."[48] Vincent was born in 1982, but Seward executed his will in 2008. Because Vincent was not born or adopted after the execution of Seward's will, he cannot benefit from the presumption that he was omitted ...

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