Benjamin v. Butler

2008 OK 83, 194 P.3d 1269, 2008 Okla. LEXIS 85
CourtSupreme Court of Oklahoma
DecidedSeptember 16, 2008
DocketNo. 103,063
StatusPublished
Cited by45 cases

This text of 2008 OK 83 (Benjamin v. Butler) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benjamin v. Butler, 2008 OK 83, 194 P.3d 1269, 2008 Okla. LEXIS 85 (Okla. 2008).

Opinion

TAYLOR, J.

§ 1 We are presented with this question of first impression: whether the assets of a revocable inter vivos trust are subject to the provisions of Oklahoma's pretermitted heir statute, 84 0.9.2001, 182. We are also presented with the question of whether, in a probate proceeding, notice must be given pursuant to title 58, section 240 of the Oklahoma Statutes before a court's order deter-minating heirs is binding. We answer the question of first impression in the negative and answer the second question in the affirmative.

I. FACTS

T2 This appeal arises from a final decree in a probate proceeding of the estate of Walter Kinsley Jackson (Jackson). On August 18, 2008, Johnny C. Benjamin (Benjamin) filed a petition seeking to be named the personal representative of the estate of Jackson. In the petition, Benjamin alleged (1) Jackson died intestate, (2) Benjamin is Jackson's adult son,1 and (8) Benjamin is Jackson's sole surviving heir at law.

T3 The notice of the hearing on Benjamin's petition stated that Benjamin had applied for letters of administration and appointed a time certain for the hearing on Benjamin's petition. Absent from the notice was any reference to or request for a determination of the heirs. Benjamin appeared at the hearing, but the record is absent of any evidentiary proof that Benjamin is Jackson's heir at law. On September 3, 2003, the trial court found Jackson died intestate, found Benjamin to be Jackson's son and entitled to Letters of Administration, and found Benjamin to be Jackson's sole heir at law.

T4 Benjamin brought an intra-probate proceeding against Robena Butler and Harris Butler (together, the Butlers), the co-trustees of a revocable inter vivos trust established by Jackson and his wife, who had predeceased him. In the intra-probate proceeding, Benjamin sought the removal of the Butlers as co-trustees with him named as trustee in their place, sought the disgorgement of any trust assets which had been disbursed, and sought a determination that he was Jackson's pretermitted heir and entitled to all the trust's assets. Benjamin's position hinged on the September 3, 2008 order's findings that he was Jackson's son and that he was Jackson's heir at law.

1 5 The Butlers filed a motion for summary judgment arguing that Benjamin had failed to produce evidence pursuant to title 84, section 215 that he is Jackson's son and heir at law and attaching Benjamin's birth certificate which shows Kenneth P. Benjamin to be his father. The docket sheet shows that Benjamin filed a response to the Butler's motion, but the response is not part of the record on appeal.

6 Benjamin then filed a motion for partial summary judgment in which, relying on Thomas v. Bank of Okla., N.A., 1984 OK 41, 684 P.2d 553, he argued that in the September 3, 2008 order, the trial court found him to be Jackson's son and Jackson's sole surviving heir at law; that the terms of title 84, section 132 applied to trusts, as well as wills; and that as Jackson's sole and pretermitted heir, he was entitled to all of the trust's assets. [1272]*1272The Butlers replied with a continuation of their argument that Benjamin failed to produce evidence that he was indeed Jackson's son and heir at law.

T7 The trial court denied Benjamin's motion for partial summary judgment, finding that the terms of title 84, section 182 of the Oklahoma Statutes do not apply to a revocable inter vivos trust. Pursuant to the letters of administration, Benjamin presented the court with a final accounting which stated that "[nlo assets exist for this estate and therefore there is no distribution." On January 17, 2006, the final decree in the proceeding was filed. The final decree acknowledged the trial court's previous ruling that the terms of title 84, section 132 do not apply to revocable inter vivos trusts.

8 Benjamin appealed asserting that he is Jackson's pretermitted heir; that the assets of the revocable inter vivos trusts are subject to the terms of title 84, section 182 of the Oklahoma Statutes; and that he is entitled to share in the trust assets. The Court of Civil Appeals affirmed the trial court's judgment, finding that even if Benjamin were Jackson's son, Oklahoma's pretermitted heir statute is inapplicable. This Court granted Benjamin's petition for writ of certiorari.

II. STANDARD OF REVIEW

19 Here we are presented with questions of law which we review de movo. St. John Medical Center v. Bilby, 2007 OK 37, 1 2, 160 P.3d 978, 979. Such review is plenary, independent, and non-deferential. Id.

III. EFFECT OF SEPTEMBER 3, 2008 ORDER

110 The Butlers have protested, both in the trial court and on appeal, that Benjamin has failed to provide the statutory proof under title 84, section 215 that he is Jackson's son and heir at law. Thus, they argue that the trial court erred in its September 3, 2008 order when it found Benjamin to be Jackson's son and his heir at law.

1 11 We view the September 3, 2003 order as having two separate components: first is the finding that Benjamin is Jackson's son and entitled to letters of administration, and second is the determination that Benjamin is Jackson's sole heir at law. To address the first finding, title 58, section 122 of the 2001 Oklahoma Statutes2 prioritizes the persons entitled to be appointed to administer an estate, with a child being placed second in the order. In fact, under section 122, any legally competent person may be granted letters of administration. There is no explicit evidentiary requirement in section 122 for a child or for another person to be appointed as administrator of an estate.

{12 In contrast, title 84, section 215 has specific evidentiary requirements for a child born out of wedlock to attain the status of an heir at law. Section 215 requires a child born out of wedlock and seeking status as the heir at law of a putative father to produce (1) proof of a written acknowledgment signed before competent witnesses that the child is that of the father, (2) proof that the father married the mother after the birth and acknowledged the child or adopted the child into his family, (8) proof that the father publicly acknowledged the child, receiving it into his family with his wife's consent if married, and treating it as a child born in wedlock, or (4) proof that the father had been judicially determinated in a paternity proceeding to be the child's father. Section 215 mandates such proof before a child born out of wedlock may attain the status of an heir at law of a putative father. The record is absent such proof.

[1273]*1273113 In addition to such proof, title 58, section 2403 requires an explicit notice of a determination of heirs as a prerequisite to determinating heirship. The record here again is absent such notice. Because of this absence of such notice, this Court is not bound by the trial court's determination of heirs, i.e. the finding that Benjamin is Jackson's sole heir at law in the September 3, 2008 order.

§14 Even though the trial court erred in determining Benjamin to be the sole heir at law without proper notice, the trial court's decision that Benjamin was not entitled to the trust assets was based on the question of whether the assets of a revocable inter vivos trust are subject to Oklahoma's pretermitted heir statute. This is the question presented by Benjamin for our review.

IV.

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Bluebook (online)
2008 OK 83, 194 P.3d 1269, 2008 Okla. LEXIS 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benjamin-v-butler-okla-2008.