Will which excluded illegitimate children upheld: CAREY v. JAYNES (COA 3/21/2008)

CAREY v. JAYNES
PROBATE:   Will which excluded illegitimate children upheld
2007-CA-000148
PUBLISHED: AFFIRMING
PANEL: COMBS PRESIDING; DIXON, KNOPF CONCUR
COUNTY: MADISON
DATE RENDERED: 4/10/2008

This case involved the attempt of an illegitimate child to obtain a share of her father’s estate. A court had determined paternity and the father had paid child support to the plaintiff’s mother. However, his will left his estate to his “children” and defined that term as the “lawful blood descendants in the first degree of the parent designated.”

Under Kentucky law, the term “children” refers to legitimate and not illegitimate children. Marquette v. Marquette’s Ex’rs, 227 S.W. 157 (Ky. App. 1921). Furthermore, “[t]he law in Kentucky has always held that the word lawful in this context means legitimate or born of a lawful marriage.” Black v. Cartmell, 49 Ky. 188 (1849) (emphasis in original). Although the Court noted that the law regarding the rights of illegitimate heirs has changed for persons dying intestate, the testator was free to make his will as he saw fit.

By James Worthington

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