The second half of that legal article:
http://writ.news.findlaw.com/commentary/20080513_gans.htmlHeath Ledger's Estate: Why Daughter Matilda, Who Was Left Nothing in Her Father's Will, Might Have a Claim to Everything
Part Two in a Two-Part SeriesBy JOANNA GROSSMAN AND MITCHELL GANS
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Tuesday, May. 13, 2008
As has been widely reported, critically-acclaimed actor Heath Ledger recently died, at age 28, of an accidental drug overdose. He is survived by both of his parents, three sisters, a two-year-old daughter, Matilda, and, potentially, an 11-year-old child whom tabloids have suggested he fathered, with an older woman, while he was still in high school.
Although Ledger's Will bequeathed everything to his parents and sisters, we argued in the first part of this series that his entire estate would pass to Matilda if New York law were applied. However, California or Australian law might, alternatively, apply.
As we will explain, the conflicts-of-law question here is important because it governs where the will should be probated and what law should determine the rights of after-born and non-marital children.
Where Was Heath Ledger Domiciled -- New York, California, or Australia?
Ledger's domicile at the time of death may prove to be critical. As a general matter, wills are usually probated in the jurisdiction in which the decedent was "domiciled" at the time of death. Adults establish domicile through physical presence in a jurisdiction with the intent to remain there. Was Ledger domiciled in New York? We can't be sure without more facts, but there are is at least some evidence to support the claim that he was a New York domiciliary. Ledger told New York Magazine that he and Michelle had "localized" themselves in Brooklyn and there was not "another place on earth" they'd rather be. After they broke up, reports suggest that Ledger shifted from Brooklyn to Manhattan, but also seems to have spent time in Los Angeles, California. He does not seem to have owned a house or apartment in either jurisdiction. There is no dispute that he died in New York, or that Matilda was born and still lives in New York.
Yet California has, instead, been claimed by some to be Ledgers' domicile. Ledger's Will names two people as co-executors of his Will and co-trustees of the trust for his family. They filed a petition in a New York court for temporary/limited administration of his estate, with a notation on the form that the Will would be submitted for probate in Australia. (One reason for filing such a petition would be to enable them to manage any assets located in New York.) The court papers ask for the decedent's "name, domicile, date and place of death, and national citizenship." In that box, the executors appear to have written that that Ledger was a citizen of Australia, but died in Manhattan and was domiciled in Los Angeles, California. (The publicly available copy of the will has some parts of the address redacted.)
Under a test of physical presence plus intent to remain, it would seem that New York or California might be a logical choice for Ledger's domicile. But the executors of Ledger's estate may well ultimately claim he was still domiciled in Australia. His will was executed there and, it appears, he remained an Australian citizen. It may, in other words, be difficult to prove that he had intended to change his domicile from Australia.
What Law Should Control the Rights of Disinherited Family Members?
Ledger's domicile is important to determine what rights his after-born and/or non-marital children have to his estate. Under existing law, the law of the decedent's domicile at the time of death generally controls the rights of afterborn children such as Matilda (who was born after the will was executed and thus is termed by the law "after-born," as we discussed in Part One), at least with respect to personal property (that is, everything but real estate).
For example, in the 1965 New York case, In re Harris' Will, the court applied the New York statute, rather than the law of the decedent's domicile at the time of the Will's execution. The decedent had executed his Will in Ontario, Canada, where he was then domiciled, leaving everything to his wife. The couple then moved to New York, where they had two children. Six years after making the move, he died. The court applied New York's after-born child statute, rather than the contrary law in Ontario. Under the New York law, the children were entitled to share the estate with their mother, despite the express terms of the will, because their father was domiciled in New York at the time of his death.
The court analogized the protection for after-born children to the right-ofelection statute's protection of a surviving spouse against intentional disinheritance, and decided the conflict-of-law question accordingly: Just as the surviving spouse's rights are to be determined by the law of the decedent spouse's domicile at death in the case of personal property, the court held, so too should after-born children's rights be determined by the law of the decedent's domicile at time of death.
This remains New York's approach, but it may not be the best-reasoned one, for the New York court's analogy between protection for after-born children and intentionally disinherited spouses is a weak one. The right of election provides a surviving spouse with a minimum share of the decedent spouse's estate (typically, a one-third share). This right applies even when the decedent spouse expressly and very intentionally disinherits the survivor; indeed, the right is designed to prohibit complete intentional disinheritance of one spouse by the other.
In contrast, the after-born child statute protects against unintentional disinheritance. Children have no substantive right under American law to inherit from their parents. (Louisiana, which provides "forced heirship" for children up to a certain age, is the only exception to this rule.) Any testator can expressly disinherit existing and future children through proper drafting. This distinction between the right-of-election and after-born child statutes might justify a different conflict-of-laws rule.
The applicability of the after-born-child statute might therefore be more appropriately conceptualized as a question of how to interpret the decedent's intent: Should Ledger's silence in his will about after-born children be read as indicating an intent to include or exclude them?
The answer depends on the default rule. If Ledger executed the will in a jurisdiction that provided no protection for after-born children, then his failure to specifically disinherit such children cannot be read as intending that they share in his estate. On the other hand, if he executed the will in a jurisdiction that protected all after-born children not provided for or specifically disinherited, then we can treat their omission as accidental.
The Restatement (2d) of Conflicts, a treatise that many courts view as persuasive, seems to acknowledge that it might defeat the testator's expectations to apply the law of the domicile at the time of death, rather than the law of the domicile at the time of drafting. This is consistent with the notion that, as a general rule, the interpretation of a will bequeathing personal property does not change merely because of a post-execution change in domicile.
What Law Should Control the Legal Status of Parent and Child?
Another conflict-of-law question arises with respect to determining the legal parentage of Matilda and Ledger's alleged older child. As we explained in detail in Part One, Matilda's ability to take Ledger's estate as an omitted child may turn on whether he is her legal father. But her rights may also turn on whether Ledger is the legal father of the Australian girl, because the Australian girl's existence at the time his Will was executed would defeat Matilda's claim, at least under New York law.
What law should determine the girls' respective legal statuses? Choice of law matters here because other jurisdictions may have a more or less rigorous version of New York's non-marital-child statute – imposing a higher or lower standard of proof in terms of establishing paternity.
As a general matter, the law of the place where the child is born determines his/her status for this purpose. Thus, Matilda's status should be determined by New York law, but the alleged earlier child's should probably be determined by Australian law.
What if California or Australian Law Applies? Matilda Still Gets Everything
Ultimately, the choice of law only matters if the outcomes differ. If New York law applies, then the most likely outcome is that Matilda gets everything – for the reasons we set forth in Part One. Ledger would clearly qualify as her legal father, and she would be an entitled to her intestate share under the after-born child statute. And her intestate share would be everything. Whether the Australian girl is treated as Ledger's child – a status that could interfere with Matilda's claim, as we also explained in Part One– would turn, most likely, on Australian law.
What if California law applies, however? The probate petition seems to assert that Ledger was domiciled in California at the time of his death. If that is true, how should his estate be distributed? If Matilda is Ledger's only child, California law calls for the same outcome as New York law. Section 21620 of the California Probate Code protects after-born children in the same way as New York law, by giving an after-born child who is not provided for by a parent's Will her intestate share. And, as in New York, the intestate share Matilda would receive under section 6402 of the California Probate Code, if she is the only living child, is the entire estate.
If the Australian girl is proven to be Ledger's child, however, the outcome under California law will differ from that under New York law. Under California's Sections 21620 and 21621, the existence of a child born before the will is executed who is also disinherited does not necessarily negate the share of an after-born child. But, under these sections, if a living child is omitted from a parent's will under the mistaken belief that the child has died or does not exist, then the living child is entitled to an intestate share as well. If a decedent died intestate with two living children, those children would share the estate equally. The Australian girl's ability to share in the estate, however, would depend on her ability to prove that Ledger was her "natural parent".
What if Ledger is domiciled in Australia? The distribution of his estate might differ drastically than if New York or California law governs. Law in Australia differs by province, so we would first need to know in which province he was domiciled. As a general matter, however, Australian law tends to protect family members in a different way than the law ofAmerican states does.
In at least some Australian provinces, there is a law giving probate courts discretion to provide for needy spouses and dependent children, regardless of what bequests are made in a will or what the rules of intestacy provides. This sort of discretionary support is a concept that does not exist in American law (though, in some states, family members may be entitled to support during the administration of the estate).
Ultimately, Matilda Will Likely Fare Best If New York or California Law Is Applied
It seems fair to assume that whatever Matilda might be entitled to under Australian law, it might well be outstripped by her potential entitlement to the entire estate under New York or California law. Let's hope she has a lawyer advocating for her rights.
(There is a place in the original article website to click here to go to a message board to discuss this.)
Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site. Mitchell Gans, a FindLaw guest columnist, is a professor of law at Hofstra University. He is an academic fellow at the American College of Trust and Estate Counsel and is the co-author of a recent book on the ethical responsibilities of tax practitioners.
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