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Descendants by Blood

Written by on Sep 15, 2009| Posted in: Estate Litigation

It will have blood, they say; blood will have blood.

~William Shakespeare~

Court rules the phrase “descendants by blood” is a legal term of art, not a scientific one.

Court’s are often called upon to interpret ambiguous language contained in wills, trusts and other legal instruments.  Recently, I was curious to read that a court was called upon to give meaning to the phrase “descendants by blood” in Doe v. Doe, 34 Fla.L.Weekly D1819c (Fla 2nd DCA February 4, 2009).  I had presumed its meaning was clear, however, when I read the opinion issued by this court, it appears that it was necessary for an interpretation given the recent advances in technology, especially in the area of genetic testing.

The facts of Doe are uncomplicated.  Chester Jr. and Eleanor, his wife, executed mutual revocable trust agreements.   Each trust provided for a class gift to the settlor’s grandchildren.  One of the grandchildren was Catherine, who was the daughter of Chester III by virtue of his name appearing on her birth certificate and a court order entered in the domestic relations division following Chester III’s divorce with Catherine’s mother.

Unbeknownst to either trust settler, Chester III submitted samples from Catherine and himself to two separate laboratories for DNA testing.  The test results from each of the two laboratories conclusively excluded Chester III as Catherine’s biological father.  Eleanor, the surviving settlor, died six years after the results of the DNA tests became known to Chester III.

The trustees went to court seeking to exclude any distributions to Catherine arguing that the class gift excluded her since the DNA tests showed that she was not related by blood as the settlors’ grandchild.

Each of the settlors’ trusts contains an identical provision limiting the class gift:

“For all purposes, hereunder, in determining whether any person is a child or descendant, only children and descendants by blood shall be included. The term “grandchild[,]” as used herein[,] includes all grandchildren of the Settlor and is not limited to grandchildren by the one son whose death causes a trust to terminate.”

The court observed that the critical language here is the limitation of beneficiaries of the class gifts made in both trusts to “only children and descendants by blood.” In other words, Article XVIII restricts the class gifts in the trusts to persons whose relationship to the settlors is one of lineal consanguinity.

The trustees’ admittedly unenlightened argument was that the limitation of the class gifts to “only children and descendants by blood” reflected the settlors’ desire to keep “family money” within the family as determined by lineal consanguinity.  The trustees also argued that the case was focused on the settlor’s constitutional right to dispose of their property as they wanted.

The Second District disagreed and issued an opinion declaring that judicial districts policy on the issue:

“The Trustees’ argument overlooks the meaning of the term “descendants by blood” and similar expressions as they have been used historically in wills and trusts in connection with the limitation of class gifts to persons related to the testator, the settlor, or some other designated person. Before the advent of modern genetic testing in the last twenty to thirty years, a challenge such as the one the Trustees have brought against Catherine — challenging the paternity of a child born in wedlock — would have been all but unthinkable… Only with the relatively recent development of genetic testing has the proof necessary to overcome the presumption of legitimacy become generally available.”

“Of course, the use of terms such as “descendants by blood” and similar expressions to limit class gifts began long before genetic testing became available. Such expressions are terms of art that have been traditionally used — sometimes successfully and sometimes unsuccessfully — to limit class gifts to persons related to the testator, settlor, or other designated person by a blood relationship and thus to exclude adopted persons. Thus, by expanding the definition of “descendants” to include adoptees, adopted persons may be included within the terms of class gifts to descendants.”

“The Trustees’ expansive reading of Article XVIII’s restriction of the trusts’ class gifts to “descendants by blood” as requiring genetic testing to determine membership in the class ignores the lessons of legal history. Because the blood restriction came to be used in wills and trusts to exclude adoptees from class gifts long before genetic testing became available, the meaning of these old expressions cannot reasonably be extended beyond the exclusion of adopted persons to disqualify descendants such as Catherine who were not adopted and who would otherwise qualify as a beneficiary of the class gifts but who happen to lack the requisite genetic profile from the settlors.Thus a proper interpretation of the limitation of the trusts’ class gifts to “only children and descendants by blood” does not support the Trustees’ argument.”

“To put it in a nutshell, the trusts’ Article XVIII appears in legal instruments, not in a technical paper on genetics. The phrase “descendants by blood” is a legal term of art, not a scientific one. As a legitimate child of one of the settlors’ sons, Catherine qualifies as one of the settlors’ “descendants by blood.”

It seems the court gave significant weight to the notion that the granddaughter was a “legitimate” child of the settlor’s son, which I presume stems from Chester III being listed on the birth certificate and the court order.

However, would the court reach a different opinion if evidence existed that the only reason why Chester III’s name appeared on the child’s birth certificate was a result of the biological mother lying to Chester III regarding paternity and that the court order entered in the domestic relations division was issued based on that same lie?  Under that hypothetical, is there a “legitimate” child or should it even matter?

This case illustrates the difficulties faced by courts when confronted with the conflict between social policy and the law’s goal of giving legal effect to the desires of a person as expressed in their will or trust.

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