This column first appeared in the SA Express-News and its MySA.com website on March 12, 2015.
Dear Mr. Premack: I recently found out that my natural, biological father was “an old family friend” whom I had not seen in 30 years. He is 86 years old has one living son, a deceased son (both have children) and a stepdaughter whom he raised from age 3. He is widowed. He looked for me for 10 years and his sister helped him. We have built a wonderful relationship and he wants to leave me his home and land and a little money and material goods. That scares me. We talked about having a DNA test but he prefers not to have one saying he knows I am his and that is all that counts. I am worried if he changes his Will there will be a fight over his estate. Although I would love to have what he wants to give me, I feel awkward at the same time. What is the best thing for him to do? I don’t want to look greedy, yet I do not want to go against his wishes either. – C.G.
You may be asking how this man could legally recognize you as his child. Technically, he could have acknowledged you as his child near the time of your birth, but that would have required that 1) he and your mother sign and file an acknowledgment, and 2) your mother’s husband at the time of your birth sign and file a denial that her husband is your father. It is clearly too late for that process to be used.
In the absence of that process, this “old family friend” is not recognized as your legal father unless he goes to court to establish paternity. His belief that he is your father has no legal effect. To obtain a court decree, he would file a suit in District Court, and the court could (and likely would) order genetic testing. Since he refuses to undergo a DNA test, the legal issue of paternity is not at all settled.
What is your position if you are recognized as his legal child? As his natural child, you are one of his heirs at law – that is, you are a person who might inherit part of his estate if he dies intestate (without a Will). But if he does make a Will, he can include you or can leave you out, just as any parent or friend could do.
Conversely, what is your position if you are NOT recognized as his legal child? He still has the right to declare in his Will that he wants to give some property to you. He can list you as a devisee and, so long as he has testamentary capacity, then his legal instructions are enforceable upon his death.
So the issue of whether he is or is not your father has no bearing on whether he can legally name you to receive an inheritance when he dies. The true issue is whether his intention to name you in his Will is going to stand up to the challenge that could come from his acknowledged children.
To prepare for that, he must take very careful legal steps. He must prepare a Will that is written by an experienced attorney. The attorney may want to lay the groundwork for the Will’s validity by having a doctor examine him to certify his capacity. Then he should start a campaign with his children by informing them of his new Will, telling them of its contents, and discussing their opinions with them. Although it may be difficult, if his children are fully informed while he is alive, they are far less likely to bring a legal challenge at the time of his death.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and business entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.