Patterico's Pontifications

2/16/2007

Anna Nicole Smith’s Will – Another Fine Mess

Filed under: Current Events,General,Law — Justin Levine @ 12:39 pm



[posted by Justin Levine]

TMZ.com has obtained a copy of Anna Nicole Smith’s will. I’m assuming at this point that it is genuine and that no subsequent revisions to the will have been made.

 

I suspect that this document could potentially screw things up even more regarding the Anna Nicole Smith death saga.

 

I am not an expert. I took wills and trusts in law school. I’ve written three wills for people who had relatively simple estates. So I maybe wrong about this, but it seems to me that Anna Nicole’s will could shape up to be yet another disaster that the courts will be forced to deal with.
Is Anna Nicole’s will invalid?? Possibly.

Here is my analysis –

The will was written before the birth of Anna Nicole’s daughter Dannielynn. Her only child at the time that she wrote the will was Daniel, who is now dead.
Like many states, California has a legal provision whereby if you have any children after you write your will, the courts are entitled to presume that you really meant to include them in the will unless you specifically indicate otherwise.
Here’s the problem – Anna Nicole specifically indicated otherwise.

 

She may have just screwed her only daughter out of her estate. Page 1 of her will (page 4 of the PDF document) states (emphasis added):

“I have one child DANIEL WAYNE SMITH….Except as otherwise provided in this Will, I have intentionally omitted to provide for my spouse and other heirs, including future spouses and children and other descendants now living and those hereafter born or adopted, as well as existing and future stepchildren and foster children.”

Whoops! Why was Anna Nicole so stupid in this instance as to include that paragraph about her future children?? Maybe there is a probate expert who can help me out here, but isn’t that a very problematic clause? If she leaves her estate to Daniel (who is now dead), and explicitly excludes any future children or heirs, doesn’t this essentially mean that she died without a valid will (“intestate” as we lawyers say)? If that is the case, then maybe Danielynn would still end up getting the estate by default. But would that overrule her clause specifically denying the estate to any future children?

 

(She indicates in the will that she is a resident of Los Angeles, so I assume that the probate will take place under California law. But even if that is not the case, many other jurisdictions have similar rules of interpreting wills.)

 

But then the wording gets very sloppy on page 2 (page 5 on the PDF document – emphasis added):
 

“All  the property in my estate…shall be directed to Howard Stern Esq., to hold in trust for my child under such terms as he and a court of competent jurisdiction may declare, such that my children are distributed sufficient funds for the health education and support according to their accustomed  manner of living from either the income or principal of the trust until age twenty-five; and are at that time given one-third of all the income in the trust and one-third of the principal of the trust as then constituted; and at thirty are given one-half of the income from the trust and one-half of the principal of the trust as then constituted; and at thirty-five given all the principal from the trust. If in the direction of the Trustee, the amount remaining in the Trust is too small to efficiently administer, he may give all of the corpus of the trust to my child at once.”

  
Notice the use of the plural “children”, then switching back to the singular “child”? Does this imply some intent negating the clause on the first page that excludes future children?? Does this screw-up and the designation of Howard K. Stern as the trustee provide any clues as to Stern’s behavior in fighting for Dannielynn?

 
Regardless, this is a total mess. One to go along with all of the other legal messes that Anna Nicole Smith left behind in the wake of her life and death. You would think that when dealing with a potential estate such as Anna Nicole Smith’s, the lawyers would be a bit more careful and precise in the construction of the will. Howard K. Stern apparently didn’t write it, but shouldn’t he have at least proofread it and advised her of making some changes to the wording?

 
They manage to get all of the meaningless legal boilerplate down fine, but when it comes to the most important section that details what Anna Nicole actually wanted done with her money – it is a complete clusterf**k of confusion in my mind. She should ask for her money back.

 
I’d like to call on any probate estate attorneys to help me out with my analysis here. Am I making a mountain out of a molehill? Will courts simply come up with an equitable solution and award the daughter the estate in any event? Help! The fate of the nation rests on this analysis as you well know.

 

Update:  It seems that other estate attorneys are unsure as well (though leaning towards the probability that the daughter will still eventually get it somehow).

Chris Boyett, a trust and estate lawyer not connected to the Smith case, said that since Smith’s son is dead, the court will probably treat her estate as if she had died without a will, meaning her estate would by law go to her baby daughter.

“I don’t think the result will be that it goes to no one,” Boyett said. “I think the courts are going to find a beneficiary, and I think the beneficiary is going to be the minor child.”

But Jeff Baskies, another lawyer who is not involved in the case, said that it was unclear who should get Smith’s estate and that it would depend on the laws in the place where she claimed residency when she died. Smith had a home in the Bahamas.

[posted by Justin Levine]

100 Responses to “Anna Nicole Smith’s Will – Another Fine Mess”

  1. Well, I’m not sure how California estate law works, but:

    Let’s say the entire (or bulk of the) ANS estate goes to her son Daniel. Daniel is dead, so the ANS estate goes to Daniel’s estate. Assuming Daniel didn’t have a will (he was just a kid), the ANS estate gets passed through to Daniel’s heirs through intestacy. I would assume Daniel’s baby half sister is his heir under intestacy as being his closest living relative (Daniel had no issue, and I assume in California siblings take before parents, whoever Daniel’s dad is).

    Therefore, the baby girl takes not because of (or despite of) ANS’s will but because she is the sole heir in intestacy of ANS’s sole beneficiary, who is predeceased.

    Aplomb (b1076c)

  2. Oh, and the screw up with “children, their and child” was almost certainly the sloppy lawyer taking a boilerplate paragraph from a model will and forgetting to change all the words to the singular.

    I would think the clearly drafted (if puzzling as to her motive) paragraph from page 1 disinheriting future children would be the one that a judge would use to establish intent, and recognize that the second paragraph’s internal inconsistency was a drafting error. He might do that just as a matter of interpretation, although to be safe he might get the drafter or witnesses to testify about it to clear up the confusion as to intent.

    Aplomb (b1076c)

  3. On re-reading, I think you’ve missed bolding the most relevant passage:

    including future spouses and children and other descendants now living and those hereafter born or adopted

    That’s going to be hard to get around, I think.

    Wiz (041bc8)

  4. Since her son died first I think he can’t inherit. So if the will leaves everything to him, she in effect died intestate.

    James B. Shearer (fc887e)

  5. “Since her son died first I think he can’t inherit. So if the will leaves everything to him, she in effect died intestate.”

    Unless California law is weird, his estate would be able to inherit. Predeceased beneficiaries happen all the time and, absent provisions in the will that specify what should happen in that case, the usual presumption is to pass it through the estate of the beneficiary to the named beneficiaries or intestate heirs of the predeceased beneficiary. The idea is, if my beneficiary can’t take it, and I haven’t specified otherwise, give it to those my beneficiary would have given it to.

    In a very sad chain of events for my family, I just went through this. Within the last few years, first my sister died, then my mother died, then my grandmother died. My grandmother’s will left everything to my mother (deceased) and aunt (living). My aunt took 50% of the estate. My living brother and I and my sister (deceased) took through my mother and split the 50% that was meant for my mother, as my mother’s will split her estate between the three of us. My sister’s share of both my grandmother’s estate and mother’s estate went to her only son. Obviously, my grandmother’s will did not provide for the bizarre passing of her daughter and granddaughter before her. Yet, some of her estate ended up skipping two generations and ending up with my nephew by virtue of two applications of the rule that estates of the deceased can inherit and pass the bequest to their beneficiaries.

    Aplomb (b1076c)

  6. Justin,

    Doesn’t California have a forced share provision? I would be very surprised if it doesn’t. Under those laws, I think the baby’s guardian could file suit to claim a forced share as long as the Will was written prior to the baby’s birth.

    In any event, the Will does refer to “my children” on page 5 in the disposition section so that might also provide a basis for a legal claim that Anna Nicole Smith intended to provide for any unborn children, despite Will provisions to the contrary. It was probably a typo, given that this is not the type of Will you generally see from people with lots of money. My guess is it was a short-term thing to make sure Stern was the executor and not her mother. But courts will look for any excuse to provide for disinherited babies in these situations, and frankly I don’t think it’s a common occurrence – especially when the decedent is the mother.

    DRJ (605076)

  7. I should have been more specific. I did read your post but my point is that the courts will probably apply the forced share provision anyway. Probate courts typically construe those laws in a manner that makes it very hard to disinherit a child. You have to have a clear and unambiguous statement of intent in order to disinherit an after-born child, including the reasons you want to do that. My guess is that this provision doesn’t rise to that level

    What are the odds that this family would end up with another high-profile probate case? Given the flamboyant participants, I guess the odds are pretty good but there are so few litigated probate cases and the Marshall estate has two of them.

    DRJ (605076)

  8. This, and Aplomb’s experience, is why a will should be updated every time a beneficiary dies. And at least reviewed after the birth of a child.

    larry (336e87)

  9. 7

    I expect a minor child is entitled to the equivalent of child support so as not to be a burden on society but I am doubtful about anything more than that.

    James B. Shearer (fc887e)

  10. 5

    I don’t think this is universal, it often matters who dies first and wills may have provisions about when deaths should be treated as simultaneous.

    James B. Shearer (fc887e)

  11. Aplomb –

    Just to clarify your thinking on this. Do you feel that a judge would essentially treat this as an intestacy and give the daughter her share of the estate despite the clear explicit language of the will indicating that she wished to exclude any future children? Would intestacy provisions overrule a clear request found in the will itself? You may be right – I’m just asking.

    (Technically speaking, I’m not sure that the ANS estate would pass along to Daniel’s estate. I suspect that the judge would rule that provision of the will to be impossible to fulfill and decalre ANS’s will to be invalid. But the final result would admittedly still be the same if the clause explcitly excluding future children can be ingnored – the daughter would still get the money. However, this COULD be a very important distinction if Anna Nicole’s estate gets the millions from the Howard Marshall estate in terms of the death tax. If it goes directly from Anna Nicole to her daughter, it would only get taxed once. Going from Anna Nicole’s estate, to Daniel’s, and then to Dannielynn’s means that it would get taxed twice (wouldn’t it?). Help! My head is about to explode…..

    Justin Levine (b1cc1f)

  12. DRJ –

    You may be right. But don’t you think that the disinheretnce provision here is a clear and unambiguous statement of intent? I frankly don’t see how it could be any more clear. Are you saying that more specific reasoning still has to be given in the will?

    Again, you may very well be right. I’m just asking. But if you read the language in California’s law that I linked to in the post, it could still very well be an open question.

    Justin Levine (b1cc1f)

  13. I don’t know about California law. I think there are Texas cases that require (if I recall it correctly) a “clear and unambiguous intent” to disinherit a child. Of course, California case law could have evolved different than Texas law.

    In Texas, I believe that courts are required to initially rely on the 4-corners of the Will but they are more likely to look outside the basic document in cases like this. Thus, the court would consider the totality of the circumstances in deciding whether to disinherit the baby, and any evidence that ANS loved and cared for her baby would support a finding that she did not intend to disinherit her daughter. In addition, I think Texas cases and courts are reluctant to permit these clauses – without a clear statement in the Will why the disinheritance is desired – because they never really know what was the testator’s intent and what was simply poor legal drafting.

    I’ve seen 2 Wills like this, and those Wills included an express disinheritance provision as well as the stated reasons for the disinheritance. Both involved a living child who was financially irresponsible. One testator also had a companion video where she explained her reasoning in detail. This specificity can be dangerous because it opens the door to allegations that the testator suffered from a mistake of fact or a delusion, and the express statements in the Will and the video can be used to support those allegations. On the other hand, a competent testator with a good reason to disinherit a child is quite forceful when they “speak out from the grave.”

    CAVEAT: I think my analysis is correct but I haven’t been active in probate law for over 15 years, the time I last did serious probate work and I also taught a class for paralegals on the subject. However, probate law typically doesn’t change as quickly or as dramatically as other areas of the law.

    DRJ (605076)

  14. My piddly little browser cannot download the actual will.

    Dead people inheriting is not the rule in Illinois. We are very careful to say “… if he is then living” for any named beneficiary and a catch-all provision that he is presumed to have predeceased the testator if he dies within 30 days after the testator does. We do include savings clauses “and in the event he dies before me to his children, per stirpes and not per capita” (lawyer talk for they just split what would have been his share).

    I confess that I have faced this in transactions and probate actions involving real estate and in Illinois dead people can neither own nor inherit real estate. It does seem to me however, despite Aplomb’s experience, to be the common law rule and not the exception. The maxim “no one is heir to the living” means that you never know which of your presumptive heirs will be alive when you die and thus inherit from you.

    So, without reading the will and knowing nothing about California probate law, I boldly state that Anna Nicole Smith’s will is a nullity and her daughter is her only heir by intestacy. The strongest opponent would be the State of California to whom Ms. Smith’s estate would escheat if the will were to be read as disinheriting everyone other than the son.

    nk (2ab789)

  15. Wouldn’t Daniel be considered having an estate since he died after the birth of his sister…

    Now I know why my father’s will reads like it does, actually covering grandkids should he survive my sister or myself…

    Scott Jacobs (a1de9d)

  16. Scott,

    I think that ANS’s estate legally vests at the moment of her death. Since Daniel was already dead, he is what the law calls “predeceased” and cannot inherit. The only exception might be if the express terms of ANS’s Will or state law provided an extended time period for a person to be considered predeceased, but I don’t see how that could be in this case.

    For instance, some Wills and many state probate laws provide for an extended time period to determine whether someone has predeceased the testator. The reason for these laws and provisions is generally to prevent problems that arise when spouses die together, such as in a car wreck, especially where you aren’t sure which one died first. You don’t want the husband’s estate to pass to the wife and the wife’s estate to pass to the husband. It’s a waste of time and may generate unnecessary fees and taxes. So the provision/law may say that a beneficiary must live at least 30-60-90-120 days after the testator to take a share under his Will.

    Unless I’m missing something, I don’t think this type of provision applies where the beneficiary clearly dies before the testator. So I agree with NK that Daniel’s share of the Will must be distributed under the residuary clause. I’m not so sure that a court would rule the entire Will void. I think courts will have an incentive to find the Will valid and let the baby inherit, if only for the tax benefits that may accrue because of the various tax provisions. And I suspect the named Executor, Stern, will argue this, too, because it’s certainly possible he would not be named as the estate administrator if ANS is deemed intestate.

    DRJ (605076)

  17. Scott,

    On the other hand, if you mean that Daniel has an estate, I agree that he does and his estate may well make a claim in this case. It will be interesting to see who files to be named guardian of his estate.

    DRJ (605076)

  18. I see two drafting mistakes: the clause ruling out future husbands and children could be the incorrectly drafted boilerplate. (IE, the “correct” version would have ruled out future husbands but not future children). More puzzling, there is no residuary legatee or beneficiary named in case Daniel predeceased her. That’s one of the basics a probate lawyer is supposed to make sure of–to prod the client to think of the unthinkable happening.
    I hope Mr. Lund (the lawyer who drafted the will) is consulting his malpractice carrier even as we speak.

    Wikipedia says she has five half siblings, a father, a mother who is apparently in competition with the Wife of Bath and the Samaritan woman for most husbands married (five so far, of whom ANS’s father was the first)–not to mention the daughter. I foresee many lawyers in this mix.
    And, of course, since she owned property in Nassau, it’s quite possible that the Bahamian courts will rule differently from the California courts, and her house there will go in a different direction.
    But no escheat to California. Florida law goes so far as to allow in-laws to inherit an intestate estate if no blood relatives can be located, in the effort to avoid escheat, and I would assume California law is just as liberal.

    And, to add a further quirk–the Marshall estate litigation also involved a son who claimed he should have been in the will but wasn’t.

    But I don’t recall any case in which the relatives were arguing about who gets the corpse. (Latest twist there if you haven’t heard: the ME was unable to carry out the embalming ordered by the judge here in Ft. Lauderdale because the embalmer he picked REFUSED TO SIGN A CONFIDENTIALITY AGREEMENT.

    kishnevi (caa37b)

  19. Frankly, I’m glad she’s dead. She was a whore.

    She was a drugged out slut, and I hope they show her autopsy photos soon.

    [Please don’t comment here again. — P]

    Robert (ee9fe2)

  20. Geeze #19, thanks for farting in here.

    And now a question from this non-lawyer: What will be the effect if DNA evidence identifies the father of the baby and it is not Mr. Stern?

    Old Coot (581b7e)

  21. My only guess would be that she was afraid people would come out of the woodwork after her death? Maybe some of her husband’s kids?

    David N. Scott (71b49c)

  22. Not much of a heckuva difference, Old Coot. When it comes to custody and visitation DNA means little. How much the father was involved in the child’s life before and after birth, a lot. The baby will be placed in accordance with a judge’s judgment as to what is in her best interest.

    A question I have, doesn’t California disbar lawyers for impregnating their clients?

    nk (2ab789)

  23. If the will is valid, leaving all to her son, and now that both she and her son are dead, wouldnt the estate go to her son’s next of kin, or his father (whomever that may be)?

    bains (dd1157)

  24. Billy Wayne Smith. Her first husband.

    nk (77d95e)

  25. If she is intestate, I think her assets would go to her surviving child. I don’t see how it would pass to her son’s father unless it first passed into Daniel’s estate and I’m having trouble grasping how that could happen. After her daughter, typically the next heirs would be her mother/parents and then her siblings. At least they would be in Texas, and I doubt that California law is that much different.

    My bet is that the various parties will be claiming different state laws govern this case depending on how they affect distribution. Plus, in fairness, she did move around a lot. Like Howard Hughes, there are probably numerous places that could be considered her legal domicile.

    I think it’s also possible that Stern will claim he is her common law husband. Does California recognize common law marriage?

    DRJ (605076)

  26. the new daughter is a pretermitted heir, and at very least entitled to a share of the estate. i don’t think those disinheritance of future children clauses are valid, if i recall correctly, you have to name a child in the will to disinherit him/her, otherwise the law will presume that you forgot about the child, or otherwise intended to leave something to a child who didn’t exist at the time the will was written.

    assistant devil's advocate (c15808)

  27. This one continues to be interesting to watch.

    Seems like job one is to determine which of the 6 now, wait, I did her too, make that 7 claims of paternity is the valid one.

    Though I don’t know, I would assume, (oh don’t), that he should be granted custody if able to provide a suitable home for the child.

    Seems there should be ample $’s to come into play for such, so it would be the rearing situation and such.

    Again it will be interesting to watch the further carnage upon the legal system over it.

    TC (b48fdd)

  28. Don’t care. I see no reason any of us should concern ourselves with Anna Nicole Smith and the freak show of her life and death. I’m sorry for family that she died, but honestly, why waste a second of concern on her? It’s not like she did anything of consequence during her life other than be a celebrity.

    Jal (9cd016)

  29. What is all this blathering about ANS being “intestate”? She wrote a will, albeit with some weird provisions, but you can’t ignore it just because the one named heir predeceased.
    The weirdest thing is that some folks out there apparently think a predeceased heir gets to take… no way!
    Most (if not all) states allow spouses to take a marital share against their deceased spouse’s will, even if the spouse explicitly disinherits them. Same for minor children, because parents have a duty of support to the minor children.
    So… live baby gets the minimum “forced” share allowed by California law, and the rest escheats to the state! Good Luck getting your share Ahhnold!

    PS I do this stuff for a living.

    jagcap (8ce757)

  30. I practiced law in San Mateo County, CA before retiring in 2001. Started as a litigator, and settled into a practice restricted to corporate and real estate law. Over 38 years, drafted tons of wills and trusts, many for very wealthy people, and handled many many probates.

    When I read the second sentence in Article I of Anna Nicole Smith’s will, it is the very first time I saw such language. I can’t recall ever seeing such language in any of my many form books on Wills and Trusts. [Yes, we do use form books!] The language is entirely the opposite of what a testator would naturally include in a will, unless the testator was expressly disinheriting a living child.

    I am also not aware of any case law interpreting such a clause under the peculiar facts of this case. The other problem is that the will under the factual circumstances gives the residuary estate to Stern as testamentary trustee, but there apparently is no beneficiary, because the son predeceased her, without leaving heirs.

    This is going to create a nightmare for the probate judge [If the estate has sufficient assets to require a full blown probate, rather than a summary probate]. Particularly, if Anna Nicole Smith is found to have died intestate – the daughter, grandmother and other relatives may come in with claims against the estate.

    The lawyer in LA should contact Lawyer’s Mutual or other Malpractice carrier immediately. Why didn’t he follow up once the news was out that Anna’s son had passed?

    Charles E Chase (add1c0)

  31. Wouldn’t it be simplest if the daughter simply inherited from her brother ? Isn’t she the (tragically) deceased child’s next of kin ?

    Michael Llaneza (8aceea)

  32. I have practiced trust and estates law in the past. The key to this will is the lack of a so-called residuary legatee. In plainspeak, this means that it is legal to disinherit a child, but the will is invalid if it doesn’t leave the estate to anyone. Because Daniel died and future children are excluded, this will fails because there is no one left to inherit the estate.

    Because the will fails, a court has to look somewhere to distribute the estate, and that will be to the intestacy laws that apply in the state (or country) where Anna Nicole was a resident at the time of her death.

    If she was a legal resident of the Bahamas (a big “if”), that country’s intestacy law will apply. A typical intestacy law would leave most of the estate to any surviving children, and the rest would divided among listed next of kin, usually parents or siblings. Predeceased children would not inherit a share under any intestacy law I have ever seen.

    On the front page of the will, the draftsman is listed as one Eric J. Lund, who is a recognized trusts and estates lawyer in California. How he got roped into preparing a will with no residuary legatee is the legal question of the day. That is a first year lawyer’s mistake in drafting wills. We will draftsmen are always supposed to provide for someone to inherit in all contingencies.

    Ken Cobb (a2f0e6)

  33. I just noticed jagcap’s comment #29 above, where he claims the estate would escheat to the state of California, minus a forced share for the baby. In the two states where I practice, that is not the case. A failed will defaults to the instestacy laws.

    The intestacy laws are in place precisely to cover situations of no wills and invalid wills.

    Ken Cobb (a2f0e6)

  34. I read jagcap’s comments too. He is completely wrong (even if he claims to this stuff for a living). California law most certaily does allow a person to disinherent their spouse or children if it is their explicit intention to do so. And there is also no way the estate would go to California. It would go towards the next of kin – which in this case would either be the daughter, or, if the provision for not giving it to any future children is recognized, then her estranged mother.

    Ken Cobb is right.

    Justin Levine (b1cc1f)

  35. Michael Llaneza – Unfortunately, you can’t give an estate to somebody who died before you (at leat not in California and many other states). Daniel died before his mother, so he can’t inheret anything. End of issue.

    Justin Levine (b1cc1f)

  36. Jal – I know that its hip to try and take the attitude that nobody should care about any of this. But honestly, you are full of it.

    This case is a perfect illustration of common mistakes that are made in drafting wills and people can actually learn quite a bit from it in planning their own estates. If you had bothered to read the post and some of the comments, you could actually walk away learning something new and useful about estate law in California and elsewhere. Imagine the reaction I would get in my Wills & Trusts class if I said, “I don’t care about the billion-dollar heiress who led a crazy lifestyle in this case I’m reading about. It doesn’t affect my life in any way. I should be paying to REALLY important stuff like State Department’s latest proclamation about Arab-Israeli peace which always affects my life in profound ways.”

    If you would rather ignore all of this and take the attitude of “I’m above news about Anna Nicole SMith and everyone else who wants to discuss her”, that is your perogatve of course. Just don’t think that it demonstrates your taste and intelligence – because it doesn’t.

    Justin Levine (b1cc1f)

  37. Kishnevi and Ken Cobb – You are both right about Eric Lund who apparently drafted the will. I’m not going to bag on an attorney just because he may have made one mistake. But I’m stil astonished that somebody like Anna Nicole Smith with her potential estate and access to dozens of attorneys managed to end up with such basic and serious mistakes in her final will. It is just beyond my comprehension how somebody else didn’t proofread the thing and point out the drafting errors plus the fact that it doesn’t provide for an alternative heir if Daniel was unable to inheret the estate for any reason. I’m sure Howard K. Stern must have read it. Where was he in all of this?

    Justin Levine (b1cc1f)

  38. Maybe Lund was dealing with an unreasonable and emotional client who said, “I don’t care if it means the will would be invalid if Daniel dies first. How likely is that? If he dies first I don’t care what happens anyway, and I certainly don’t want my family to get my money!” In the face of a client who has been properly advised, all an attorney can do is draft the will the client wants, and keep his fingers crossed that the son outlives the mom.

    Ken Cobb (a2f0e6)

  39. Is article 4.3.1 significant? It says “In all matters of interpretation, the masculine, feminine and neuter shall each include the other, as context indicates, and the singular shall include the plural and vice versa.”

    It seems in my (non-lawyer) opinion that at the very least, this muddies the waters even further. Or could be used to do so.

    I speculate that ANS wanted especially to exclude her deceased husband’s children. Interestingly, the will was signed and witnessed on 7/30/2001; Wikipedia indicates that there was a decision against Smith regarding the Marshall estate in July 2001. The ongoing inheritance disputes may have something to do with the confused nature of this document … who knows.

    Nikki (ef4e90)

  40. The “escheat” part was not jagcap’s, it was my stupid suggestion. He was being sarcastic about the Gobernador getting anything.

    (Otherwise, however, without having read the will or knowing California law, I was pretty close to the mark going by what Ken Cobb and Justin said. Daniel being dead knocks him out as an heir and if the will cannot be otherwise salvaged it will be held invalid and the estate will pass under the laws of intestacy. The baby will get the lion’s share if not the whole kielbasa.)

    nk (4cd0c2)

  41. Both from a technical and (more importantly) tactical legal standpoint, how will ANS’s manner of death, problematic will, and deceased child, affect ongoing struggles that the family of her deceased husband have with ANS. I mean she married an octagenarian and he died a year later. What a gold-digger. Serves her right! {/Mr. Garrison}

    TCO (ce8c4b)

  42. Daniel died before his mother, so he can’t inheret anything. End of issue.

    There’s the anti-lapse statute, but that would only apply if the son had kids himself.

    jpe (5a05e5)

  43. I’m just trying to imagine what would have happened if Daniel had survived his mother and Howard K. Stern were determined to be the father of Dannielynn, as he claims he is.

    Would Howard, as executor, be in court demanding that Anna’s entire estate go to the trust in favor of Daniel, leaving his own daughter with nothing?

    Joshua (b3820a)

  44. I’m no lawyer, but that paragraph makes me wonder if she ever gave up a child for adoption. The wording is just so weird. Nikki’s explanation makes sense in that light, too.

    Also, are judges flexible with the fact that since the baby was just born it is possible that she didn’t have a chance to update it yet and would have intended to include her daughter since she did include her son?

    Melissa (4ae123)

  45. Melissa: Normally such flexibility wouldn’t need to occur. It’s not unusual for someone to write a will and later have another child or children. But under normal circumstances, one would provide for that in the original will with language such as “my estate shall be divided into equal shares, one share for each of my children who survive me ….”

    But in this case, Anna Nicole’s will purports to say that she wanted to disinherit any future children she might have had.

    Fortunately for Dannielynn, though, common law precedents indicate that a disinherited child can still inherit if any portion of the estate is not allocated to anyone else (i.e. passes through intestacy). Anna Nicole left everything to a trust for Daniel, but he predeceased her, so the trust would fail. That means that the entire estate would pass according to the intestacy rules. So if the jurisdiction where her estate is probated follows the common law rule, Dannielynn would most likely inherit everything.

    Joshua (b3820a)

  46. Also, as indicated in the original posting, “Like many states, California has a legal provision whereby if you have any children after you write your will, the courts are entitled to presume that you really meant to include them in the will unless you specifically indicate otherwise.” So if Anna Nicole had only provided for Daniel in the will, and just not said anything either way about future children such as Dannielynn, Dannielynn would at least have inherited something — under California law, half of Anna Nicole’s estate.

    Joshua (b3820a)

  47. I can’t believe I just said half … since Daniel predeceased Anna Nicole, under the circumstance I just described, Dannielynn would inherit everything under California law.

    However, I suspect that the Bahamas will get to probate Anna Nicole’s will, and I can’t find their probate law online.

    Joshua (b3820a)

  48. Joshua,

    At this point, I think an equally or perhaps even more interesting question is who will be chosen as the Executor or Administrator. Do you have any thoughts on that? My thought is that Stern will have the inside line since he was named in the Will, although it will get messy if he’s not the biological father. ANS’s mother would normally be a possibility but some reports suggest she and ANS had a poor relationship, so that might come into play. That may leave an institutional administrator.

    DRJ (605076)

  49. Aplomb,

    I’ve been thinking about your comment #5. I certainly don’t mean to tell you about your own probate experience, but I think your situation is legally different than the situation with ANS’s estate. When the assets passed under your Grandmother’s Will, they probably passed per stirpes or by share according to the Will’s instructions. So there was one share for your mother’s side of the family and another share for your aunt’s side, and it didn’t matter who had died as long as there was at least one person from each side still alive who could be a beneficiary.

    Thus, I think the operative fact in your Grandmother’s Will wasn’t that someone had predeceased her but that her Will provided for successive per stirpes distributions if that happened. It may seem like the same situation as ANS’s Will, but legally it’s not.

    DRJ (605076)

  50. Well, the will names an executor and three successor executors. Howard Stern is indeed the first-named executor and on its face I don’t know of any reason why a court might prevent him from being the executor. On the other hand, there is always the possibility that someone (such as Larry Birkhead) might try to challenge the will as being the product of Howard’s “undue influence” on Anna Nicole Smith.

    (I don’t believe that Larry’s lawyers have raised that as a possibility yet, but if the will were to be struck down, I would guess that “undue influence would be the reason.)

    Also, at the hearing on Friday, Ron Rale (one of Anna’s other lawyers) raised the possibility that Howard might withdraw as executor, which would make Ron next in line as executor. After Ron, the next successor executor would be Eric Lund, another lawyer and the credited drafter of the will, followed by Wells Fargo Bank.

    Complicating this is the fact that the executor’s main task is likely to be trying to secure for Anna Nicole’s estate as much of J. Howard Marshall’s estate as possible in the ongoing litigation. The executor might have to make decisions like whether to settle over J. Howard’s estate for a smaller amount, or risk going to trial with the potential of either a higher verdict or receiving nothing for the estate.

    If Howard is the executor and Dannielynn’s father, he would likely be highly motivated to get the maximum possible for her; if he’s the executor but not Dannielynn’s father, his motivation might drop. So if someone other than Howard is Dannielynn’s father, that person might seek to get the right to supervise the litigation over J. Howard’s estate — or at least to require court approval over any settlement that the executor tries to enter into.

    Joshua (b3820a)

  51. At this point, the cynic in me doubts that Howard is the father, and I suspect that he knows it. He’s refusing paternity tests, and is acting far shadier than lawyers usually do (no offense, you lawyers out there… had to have a lawyer joke doncha know).

    I’m always fairly interested as to who will be named executor. Since (so I have heard) the will wasn’t actually filed in court, it seems that Howard’s claim “I am the executor” probably doesn’t stand…

    As an aside, I’d like to be the first in america to state that I’m NOT the kid’s father… One down, millions to go…

    Scott Jacobs (a1de9d)

  52. It is clear from the will that wherever it is probated California law will play a large role. I think the disinheritance of afterborn children is effective under California law. The question that remains is what happens when the intestate succession rules are then applied because of the lack of a residuary legatee. Can Dannielynn take under the rules of intestate succession even after she is clearly disinheritted by the will, or is she disqualified by the terms of the will even from intestate succession (in which case ANS’ parents would likely take all?) I think the weight of precedent (without any clearly controlling precedent) would NOT allow the terms of a will to impose a disqualification on an intestate heir. Dannielynn gets it all (probably).

    Bob, Arizona (cad8ac)

  53. Anna Nicole’s mother’s lawyer has said that the will is invalid and a “phantom will” because it wasn’t filed in court. But it would seem that the solution to that, from Howard’s perspective, would be to go ahead and file the will. The will wouldn’t be filed in court until after Anna Nicole’s death anyway, and it’s only been 10 days since she died.

    Joshua (b3820a)

  54. The copy of the will, which is available on line, WAS filed in the probate court in Broward County Florida. ANS’s mother might have grounds to contest the will, and to challenge its authenticity, but it is no phantom.

    Bob, Arizona (cad8ac)

  55. Justin (#36): Why the personal attack? You quite ably knock down a strawman of your own creation. I said none of the things you criticize. However, that didn’t stop you from manufacturing fictitious quotes. Very nice.

    I’ll leave you to get back to Court TV and your National Enquirer. Enjoy.

    Jal (a90377)

  56. I think Joshua #45 is right on the “disinheritance” issue. You don’t actually disinherit anyone, you just leave everything to somebody(ies) and do not include him.

    nk (d7a872)

  57. The talking heads on TV have been all over the “california law allows” crap about the disavowing any future kids…

    What does FLORIDA law allow? Cali law doesn’t mean anything I would suspect, in relation to the laws of the state where the will was filed…

    Scott Jacobs (a1de9d)

  58. Bob in Arizona,

    I’m not sure I agree that the rules of intestate succession will apply to ANS’s Will. After you determine that the beneficiary predeceased the testatrix (Daniel died before ANS), the question turns to the residuary clause. I can’t find a residuary clause in this Will. If that’s the case, you can’t make one up and use the rules of intestate succession in lieu of a provision. Instead, the Will is valid but not capable of performance, so it fails and ANS becomes intestate. The rules of intestate succession would apply because she was in fact intestate.

    I haven’t heard anyone question whether this was ANS’s Will so I assume it is a valid Will. A court may try to find the Will operative by including ANS’s daughter as a beneficiary of the testamentary trust – based in part on the fact that the dispositive clause does mention “children” as beneficiaries and also because I think the court will go outside the Will and take testimony regarding ANS’s intentions and her affection and love for her after-born daughter. I think there may also be testimony about the circumstances of the drafting of the Will – that the concern was not to disinherit ANS’s biological children but to disinherit Marshall heirs, hence the specific mention of disinheritance of “stepchildren and foster children.” Of course, given the complexity of family units these days, that may be routine boilerplate language but this Will is muddled and it opens the door to consider testimony regarding ANS’s intentions when she made it. And my guess is that Stern would be the witness who can testify to her intent.

    Joshua,

    Thank you for your thoughtful reply. You answered my questions (and more) even though I did not state them well. I realize that Stern will probably be the Executor if the Will is valid and operative. I guess I was focusing on what might happen if it failed. If the Will is valid, it’s my experience that named Executors rarely decline, either because they feel an obligation to fulfill the testator’s wishes and/or they want the Executor’s fees if the estate is well-funded.

    DRJ (605076)

  59. Scott,

    I think the Will provides it will be interpreted under California law so, if it is probated, the substantive laws of California should apply.

    DRJ (605076)

  60. DRJ – Sure sounds like Stern is going to end up with it all, then… Depending on the outcome of ANS’s issue with the estate of her late husband, that could end up being a lot of money, with no money going to whoever is actually the daughter’s father…

    I really hope the cops are looking at Stern long and hard… I spell motive I-N-H-E-R-I-T-A-N-C-E…

    Scott Jacobs (a1de9d)

  61. DRJ: We get to the same place. The will appears valid. It references California law all over the place. The Cal. Probate Code provides that for property not effectively disposed by will the rules of intestate succession apply. Interestingly, I first looked at a copy of the will available at CNN.com. That copy omits the final (Attestation) page, and appears invalid for lack of witnesses. But, another copy available at eonline.com includes the extra page with apparently valid witnesses and attestation.

    Scott: Being Executor (as Stern most likely will be) is a far far cry from ending up with any money. The question there will be, “Who is the guardian of Danielynn?” There has been a guardian ad litem appointed (a Florida lawyer, not Stern) but he is just her attorney for this proceding. If someone can prove paternity, then that person is the most likely guardian. (Unless Daniel is the father, but that is even too sick to contemplate!)

    Bob, Arizona (cad8ac)

  62. Scott, I’m not sure I understand your reasoning. the will identifies ANS as a California resident, contains repeated references to California law, and even states expressly that it will be governed by California law. Apart from dying there, what connection does she or her will have with Florida that you think would trump that?

    The various and sundry “Howard Stern bumped off ANS” theories strike me as equally suspect, if not more so. Beginning with the will, note that the very same provision that purports to disinherit future children (Danielynn) also purports to disinherit any future spouses (Stern). Thus, if the will is enforceable by its terms, Stern gets nothing. The plan only works if you assume he hatched his evil plan back in 2001, executing a valid will to pre-disinherit himself in full knowledge that the will would be held unenforceable, and only because he would bump off Daniel and marry “Smith” 5 years later, then bump her off. Even that only gets him half of the estate by intestacy, with the other half passing to Danielynn (see Cal. Prob. Code §§ 6401, 6402(a)) so if you really believe that convoluted theory, someone had better keep an eye on Danielynn to make sure she doesn’t meet any “accidents” of her own.

    Speaking of convoluted theories, get a load of this one on Outside the Beltway, a once-great domain that now allows morons to piss away its former reputation. Last fall, shortly after “Smith” and Stern wed, the James Joyner wannabe cited an unnamed legal “expert” who was “positive” that the reason they got married at the time they did was because “under the family law in the Bahamas, if a person marries the mother AFTER birth of the child AND acknowledges he is the natural father (which Howard Stern did on the Larry King show) — he is presumed under their laws to be the father of the child.” The legal eagle cited Chapter 130, Part III, Section 7(1)(C), which does indeed create that presumption, but managed to overlook paragraph (A) of that same part, which creates the same presumption where the couple is married before the child is born, without even the need for the husband to acknolwedge anything. He also overlooked Subsection (2) of the same statute, which utterly kills the presumption “where circumstances exist that give rise to presumptions of paternity in respect of more than one father.” This kinda throws a monkey wrench into his subsequent conclusion that “Under Part [sic, Section] 10, Larry Birkhead can only file a paternity proceeding if there is no one presumed to be the father,” which is is technically true but irrelevant since no one is presumed to be the father under these circumstances. Nor does either the wannabe or the “expert” offer any theory at all to explain why the couple would assume paternity top be governed by Bahamanian law rather than the laws of California, where they were domiciled, or specifically why Stern would have been dumb enough to bet his half of the estate on that theory, when marrying “Smith” before Danielynn’s birth would have entitled him to the same statutory presumption under either Bahamanian or California law (see Cal. Fam. Code 7540.).

    Xrlq (670300)

  63. Re: comments 54 and 57: the will was introduced on the judge’s instructions as evidence in the matter before him–custody of the corpse. It was not introduced with the intention of being probated. As far as I know, ANS owned no property in Florida, and therefore Florida law is not applicable, because ANS had no estate in Florida to be probated.

    It is, I suppose, possible that Stern could not file the will for probate, but move directly to intestacy–if his interests lie that way. But if they do, I’m sure someone else will find in their interest to attempt probate of the will.

    kishnevi (7a9e8b)

  64. Re: 63. I stand corrected. While the will has been introduced in court, you are correct that it has not been offerred for probate. However, the situs of property is not the only basis for probate jurisdiction. Property, domicile, and the domicile of debtors can each be used to establish a proper venue for probate. There are all sorts of places where this could be probated, and ancillary procedings can be maintained in multiple jurisdictions as well, if property is located in multiple jurisdictions. One thing is certain: Only her executor (or personal representative as it is known in some states) can pursue ANS’s claim on the Marshall assets, therefore, someone will go to court somewhere seeking to be appointed executor. Certainly, Stern will use this will in that proceding to have himself declared executor.

    Bob, Arizona (cad8ac)

  65. #63 kishnevi: I don’t see it as a realistic possibility that Stern could or would avoid filing the will for probate, unless Bahamian law is extremely different from California law on this point. Under California law, the person with custody of a will is required to file it within 30 days of learning of the testator’s death. Since the will’s existence is known to the public and all other interested parties now, it would be hard for Stern to get away with not filing the will.

    Furthermore, the will appoints Stern as executor. Thus, if he wants control over the administration of the estate, it’s in his best interest to have the will filed.

    Joshua (b3820a)

  66. Some misunderstandings have crept into the more recent comments. One, Stern is not legally married to ANS, so would inherit nothing by intestacy in any state, even if instestacy statutes apply.

    Two, if the will fails to leave a legatee, it fails entirely. That means that intestacy laws take over, as if there was no will in the first place. Anyone who wants to argue that it escheats to the state had better show us one case where that ever happened. Escheat laws are intended to cover situations where property has been abandoned, and there are no known rightful owners, including heirs of deceased persons.

    Which state’s intestacy laws apply depends on where ANS resided at the time of her death, not where the will was written. Once the will fails, it isn’t considered any longer in an intestate proceeding.

    Since ANS didn’t actually fulfill the residency requirements for the Bahamas, which required purchasing a home worth at least $500,000, she probably remained a legal resident of California.

    Legal Beagle (094780)

  67. To understand the will, one needs to read the ‘entire’ will. The will makes reference to a Trust in many places, and I am not ready to conclude there is no trust out there, simply because the lawyers in the courtroom did not ask for it. All of this may be moot, if she executed a Trust document before, on or after July 30, 2001, and we have not read it yet.

    Secondly, the Will, paragraph 6.1, states that any heir that contests the will gets nothing under it. Therefore, unless there is California statute or case law, which permits this child to contest the will as written, she “literally” will not be able to take under the will. If you look at paragraph
    6.2, you shall see where Smith repeats herself on disowning the world of “heirs” besides her son.

    Now, “practically” speaking, as a few have said above, Courts are loathe and loath to permit absurd results, such as this will might call for, yet frequently courts are forced to.

    So, assume that the will literally, which it does, excludes the daughter. Assume further, a court determines the will was validly executed as to form and substance. How, let’s assume for a moment that Eric Lund, who drafted the document, was actually directed to draft this will as we read it – for reasons that you cannot fathom presently – but for reasons that Eric Lund will later explain.

    Assume further that Eric Lund has a letter signed by Lund and Smith where he cautions her as to what the absurd consequences are if she signs it as written. Nevertheless, she signed the letter.

    Aside from any applicable forced share to the child, is it your position that Anna Nicole Smith, for whatever reason she chose, was precluded from providing nothing for her next child?

    Is it your position that if Anna Nicole Smith told he lawyer, I don’t care if the entire estate goes to the state if Daniel dies before me, she may not do so?

    Five months passed after Daniel’s death. During that time Smith, and her lawyers Lund, Stern, and Rale – and who knows how many other lawyers – knew the contents of this will. Yet, nobody sought to change it? Is it hard to believe that there is no trust out there that addresses this mess, eh?

    The will, wherever probated, will be governed by California law. If a Bahamian or California court rules the will invalid for whatever reason, than under California law it all goes to the baby.

    ==========

    Here are a few more issues to consider:

    Is Ron Rale conflicted from now representing Stern, since Rale was formerly Smith’s attorney? Does Rale have to be disqualified? Assume, hypothetically, that for whatever reason, Stern was negligent in his care of Smith, which duty he assumed and breached, and as a proximate result of said negligence she died. Does the estate have an action against Stern? If so, can Smith’s former attorney Rale represent Stern in an action by the estate against Stern?

    Assume Stern shows up to court Tuesday morning, and Birkhead or the Smith’s mother, Mother, Virgie Hogan Hart, serves Stern with papers seeking a declaratory relief that Stern is not the father, and that he cannot represent the baby, and further that Birkhead is the father, and that he has the right to represent the baby in this case to determine the burial locus? Will Judge Seidlin or another circuit judge in Broward County, Fl., thereby have jurisdiction to determine paternity?

    Would permit Stern – if you were his lawyer – to appear live tomorrow morning?

    Marty (ea4517)

  68. Legal Beagle: First, I do not necessarily agree that,”if the will fails to leave a legatee, it fails entirely.” First, the legatee here is the testamentary trust. If that trust fails for lack of a beneficiary, the property passes as if the decedent died intestate, but I do not think that the entire will is thrown out. I think the nomination of an executor, the instructions on payment of taxes and expense, the choice of law etc. still apply.

    Second, the general rule (I believe) is that intestacy is governed by the law of the jurisdiction of last domicile (not residence.) (There is a difference, but I don’t know where her last domicile was — probably the Bahamas even without legal residency.) Still, even if all bequests fail, I do not think she is intestate, even though property might pass pursuant to the rules of intestacy.

    Bob, Arizona (cad8ac)

  69. Bob, from Arizona

    As to your second point, Paragraph 4.4 of the will instructs that California law governs the will. I tmatters not where she was domiciled or lived at the time of her death, unless she was legally domicled in the Bahamas, and for some strange reason Bahama disregards the will of the testator as to which law governs.

    Marty (ea4517)

  70. 1. The lawyer who drafted the will was incompetent.
    2. There should be no law that allows disinheritance of a dependent child.
    3. As someone stated, the lawyer should have contacted ANS after her son’s death and updated the will.
    4. That lawyer adds to lawyers bleak reputation of causing confusion instead of making things cut and dried.

    Les (752139)

  71. Bob, it could be different if the legatee was an existing trust, and we had to look to the trust terms to deal with her son’s early death. Here the will distributes the estate directly to the son to be held in trust, meaning that the trust is created by the will. Since the only beneficiary is dead, it should be treated identically to any bequest to a previously-deceased person. It fails.

    Once a will fails for failure to name a legatee, it fails for all purposes, and we look to general probate law as if the decedent died without a will. All of the provisions about executors, cutting out future children, and California law controlling are out, too.

    Legal Beagle (094780)

  72. If someone can cite a case in California to the contrary, I will yield the point. However, in my law experience whenever a will or a contract is invalid for some reason, it is held to be invalid for all purposes. For example, if a contract is invalid because there was no consideration, or it wasn’t signed by one party, we don’t only invalidate parts of the contract.

    I know of no legal precedent for invalidating a will sufficiently to invoke the intestacy laws, while still preserving the other parts of the will. The court will rule that the will must be read as a whole. For example, Stern was the executor to pay taxes, because it was assumed that Daniel would be the beneficiary.

    Would ANS have wanted everything else in the will to remain the same if Dannelynn was the sole beneficiary instead? No one knows, which is the danger of leaving any part of an invalid will still standing. That is the usual reason why courts will strike down a will or a contract in its entirety. I confess I don’t practice law in California, but I am stating the general U.S. rule here.

    Legal Beagle (094780)

  73. Beagle,

    I think you are right except where the residuary clause of the Will specifically adopts the intestacy laws to determine the last alternate beneficiary – and that doesn’t apply in this case.

    DRJ (605076)

  74. If I am correct about the will being thrown out in its entirety, then I see this going down as follows: Either Bahama or California intestacy law applies, depending on ANS last domocile or residency, which ever applies. If they are like most instesacy statutes, the surviving daughter would get it all.

    The money would be held in trust and managed by an institutional trustee appointed by the court, probably a bank trust department, until the daughter turns 21.

    Guardianship of the baby is a separate issue. If Birkhead is not unfit, and is proved to be the father, he is likely to be made the legal guardian of the child.

    Legal Beagle (094780)

  75. The lawyer did not know what he was doing and will get sued, as he should.

    JBD (5f92cc)

  76. Legal Eagle. In answer to #73:

    I call your attention to: ESTATE OF RALSTON, 1 Cal.2d 724 (1934)37 P.2d 76 where the sole bequest was into trust, but the trust failed for lack of certainty. There was no residuary beneficiary. The Court ruled that the estate passed “under the laws of intestate succession.” Note that the Court did not rule that the decedent was deemed to be intestate, or that the will failed, but merely that the estate passed under the laws of intestate succession. I believe that the will is still valid unless it is shown to be void for fraud, or improper execution, or lack of testamentary intent or lack of witnesses etc. The failure to effectively devise all property is not fatal to the will. (Also see ESTATE OF BELDON, 11 Cal.2d 108 (1938)77 P.2d 1052: “A testator has the right to make a will which does not dispose of all of his property but leaves a residue to pass to his heirs under the law of succession.”

    Bob, Arizona (cad8ac)

  77. This case is an addiction! I’ve got it bad.

    Today’s hearing on the disposition of ANS’s body was another wild ride. I think that unless ANS expressed her intent in a proper document, her intent is of no merit. My quick check of Florida statutes gives the right to body clearly to Dannielynn — no one else. Her Guardian ad Litem needs to decide how to dispose of the remains in the best interest of the child. It should be entirely up to him.

    Bob, Arizona (cad8ac)

  78. Bob, by watching you only incourage them…

    Scott Jacobs (a1de9d)

  79. Thanks for the reality check, Scott. I’ll try to back away. But, if it turns out, as I suspect, that neither Stern nor Birkhead is the father, watching this thing for the next several years will become my full time occupation.

    Bob, Arizona (cad8ac)

  80. When an estate passes under the laws of intestate succession, that’s just another way of saying the person died intestate.

    DRJ (605076)

  81. Not entirely, DRJ. The question is whether the will’s other provisions about nomination of executor, choice of law, payment of taxes, etc. are applicable, or whether the whole will is void. Eagle says it is void. I say it is not.

    Bob, Arizona (cad8ac)

  82. Bob, don’t get me wrong… I love a good train wreck as much as the next guy, but there’s a limits to the amounts of human wasteland I can stomache, you know?

    This entire case is an example of life imitating social commentary. Someone who added what amounts to nothing to the world passes on, and the world stands freaking still as anyone and everyone even tangentally associated with her rolls around in their own filth for the benifit of the cameras…

    This PvP Online comic strip sums it up nicely: http://www.pvponline.com/article/3132/fri-feb-09

    Scott Jacobs (a1de9d)

  83. Scott, you are absolutely right. I do understand. Now, how do I get a camera crew to show up when I check into rehab for my ANS addiction?

    Bob, Arizona (cad8ac)

  84. I am not even a lawyer … But,

    IF: She was a resident of CA. at the time of the Will – do California laws apply.

    IF: She was a resident of Bahamas at time of death, do Bahamian laws apply?

    IF: She NEVER bought the house in the Bahamas was she REALLY a resident of Bahamas?

    IF: She was a resident of the Bahamas did she give up her US citizenship?

    IF: She NEVER bought the house in the Bahamas and thus was NOT a resident of the Bahamas that would MAKE HER a resident of California – SO, would American law apply to the CHILD with respect to paternity?

    Lady (9cd016)

  85. My prediction on the judge’s ruling:

    Burial in Bahamas if Stern and everyone stipulates to the following: members of the Mother’s family have full rights to access and visit the burial sight in the same fashion and manner as does any member of a deceased would have in Bahamas. If Stern refuses to so stipulate, then burial in Texas.

    Marty (ea4517)

  86. Thanks for the California case cites, Bob. I stand corrected. This probably means that Stern can serve as executor. Of course he has to pay all taxes, but that would have been the case under intestate probate anyway.

    The more difficult problem is the provision cutting out future-born children. That is in direct conflict with intestate succession, which would give all or most of the estate to the daughter. It is the direct conflict between the will and intestate succession that made me wonder if the will can survive here.

    Legal Beagle (094780)

  87. Bob #82,

    Oops, sorry. I thought the intestacy discussion was focused on the bequest provisions and I missed the point of your comment. I agree a court may find the Will valid and implement the other provisions.

    DRJ (605076)

  88. Bob,

    This reminds me of a case I was once peripherally involved in. The Will was valid but did not purport to cover all the testator’s assets. There was a possibility that the estate would have to be probated (for the assets subject to the Will) and administered (for the assets that passed by intestacy). Does California law allow this and, if so, is that what happens procedurally or is there a way to merge the proceedings?

    DRJ (605076)

  89. Lady #85: I see you have been waiting 12 hours for some answers. Let’s see if I can take a stab at your questions: Yes and no; yes and no; yes and no; no; yes and no.

    OK. Seriously. Her will invokes California law, which most courts would apply for most purposes (unless California law violates the public policy of the forum state, for example.) However, it is the California law of wills that would apply, but not the California law of court procedure, or burial rights, or even intestate succession.

    For any case brought in the Bahamas, Bahamian law will be applied at least in some regard. I don’t know how the Bahamas deals with “conflicts of law” or “choice of law” so other jurisdictional law might come in. However, none of this has anything to do with her residency. I do believe that the Stern testimony at the Florida trial makes a strong case for Bahamian domicile (not residence) which might bring Bahamian law into play on an intestacy determination in California or elsewhere.

    You don’t have to buy a house to be a resident and buying a house doesn’t make you a resident. Also, one can be a resident for tax purposes and not for estate purposes (but every has one and only one domicile at any given time.)

    Almost certainly, the paternity law of the forum in which the paternity suit is heard will govern that suit. But, in my opinion, a paternity suit brought in a jurisdiction where the child is not present almost certainly has no legal basis. (I can’t believe that the California paternity case has not yet been thrown out for lack of jurisdiction.)

    Hope that helps.

    Bob, Arizona (cad8ac)

  90. DRJ #89. I really don’t know the answer. I think this would be a procedural question that would be determined by the law of the forum. It might have a different result in California, Bahamas, Florida, Texas …. It all depends on where the will is probated.

    Bob, Arizona (cad8ac)

  91. Jal – regarding # 55. I responded with a personal attack becuase your original comment (#28) clearly implied a personal attack, not only against me, but against evey commenter to this post when you wrote “I see no reason any of us should concern ourselves with Anna Nicole Smith…”. If YOU don’t care, fine. But the level of discussion on this post indicates that there are very bright people here who do (and should) care since it illustrates some great principles of estate law that people might have to tackle themselves when they consider drafting a will. You might not have intended it, but subtext of your comment illustrates a hollier-than-thou attitude that I think is flawed and unwarranted. If you didn’t intend it that way, ok. In that case, I withdraw the tone of my own original resposne. But with your other comment of “I’ll leave you to get back to Court TV and your National Enquirer. Enjoy”, I suspect that I was right on the money to begin with. For somebody who claims not to care about this subject, you seem to be revisiting the post quite a bit.

    Justin Levine (d553ec)

  92. The most intriguing aspect for many is how to make sure our wishes regarding property are handled once we are no longer living.
    It is quite possible that Ms. Smith, after suing the Marshall Estate for so many years, simply did not wish to have her son go through the same hoops for an inheritance she felt belonged to her, and her son, if she won the appeals against the Marshall son. Therefore, she would trust her latest boyfriend, an attorney, to write up a document to protect her son. The majority of people assume they will pre-decease their children, and do not imagine they will drop dead at the age of 39, and their 20 year old formerly healthy son, before them.
    True, that Mr. Marshall’s son would be most angry with 400 million dollars at stake that he felt Anna did not deserve. Anna was not an MBA graduate, did not attend law school, and basically did what she was told to do by her promoters. Yes, her program was trashy, and she was obviously a victim of drug abuse.
    Personally, I find it more than strange that Mr. Howard K. Stern is executer of her will that he composed, did not legally marry Ms. Smith, did not want her to remain in US domain, and she and her son died of unknown causes within a year of one another in the Bahamas.
    The judge in Florida does not want to allow anyone to get away with murder, and has a case before him that has every suggestion of two possible murders for hope of financial interests regarding the Marshall estate.

    Joan Phelps (143dc4)

  93. I’ve read this section of the will before, but I saw it in a new light:

    “I have intentionally omitted to provide for my spouse and other heirs, including future spouses and children and other descendants now living and those hereafter born or adopted, as well as existing and future stepchildren and foster children.”

    Is it possible that the “children and other descendants” was intended to apply to the heirs of future spouses, i.e., future spouses and their children and other descendants?

    Why refer to existing and future stepchildren and foster children when she didn’t have any existing stepchildren or foster children. That might make more sense to describe a spouse or future spouse who has existing stepchildren or foster children. The will is a confusing mess, but it makes more sense if the qualifiers following “future spouses” are read as clauses that modify future spouses.

    I’m just sayin’.

    Greg Miller (36bad2)

  94. Joan Phelps, the problem with the double murder theory is that Stern doesn’t have anything to gain. He is not a legatee of the estate. I think ANS moved to the Bahamas for tax reasons.

    Greg Miller, there are several phrases in the will that are standard will boilerplate, and that a good lawyer would have edited for this situation.

    Your reading would not be supported in court. First, ANS starts out with a general purpose of disinheriting all of her “other heirs”, meaning other than Daniel. Then she gets more specific, and lists future spouses and children. The normal meaning is “my” spouses and “my” children, which keeps the specific phrase consistent with the general introductory phrase that led into it.

    Your reading would require mentally inserting the word “their” in front of “children”, to make it read, “future spouses and their children”. That would create a conflict in the overall clause that hadn’t been there before. A court wouldn’t do that.

    Legal Beagle (a2f0e6)

  95. Greg — California Probate Code § 6454 provides “For the purpose of determining intestate succession by a person or the person’s issue from or through a foster parent or stepparent, the relationship of parent and child exists between that person and the person’s foster parent or stepparent if both of the following requirements are satisfied:

    (a) The relationship began during the person’s minority and continued throughout the joint lifetimes of the person and the person’s foster
    parent or stepparent.

    (b) It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal
    barrier.”

    For that reason, as Beagle said, this is standard, and appropriate California estate planning boilerplate.

    Bob, Arizona (cad8ac)

  96. Nothing but a 2 timing topless dancer hooker whose only aim in life was to cheat people of their fortunes. I am glad she died. Her child will not have to worry for having a worthless tramp for a mother and will not have to grow up with the shame.
    Can you imagine with more than 100 000 people that have died in Iraq and other people that are dying every day CNN and other media still choose to give more attention to the death of a hooker whose death was most probably self inflicted by drug abuse.
    In every one of her interviews its nothing but BLAH BLAH BLAH im a tramp, BLAH BLAH BLAH im a tramp…
    and yet people are acting as though she had won a noble peace prize or something. People who feel sorry for her are ignorant and share the same colorful trailor trash lifestyle. What good did she ever do??
    Her life was so pathetic that there needs to be a legal procedure to find out who the baby of the poor child is. If that does not spell tramp then what does. Ive noticed that the only people who feel sorry for her are mostly white trash women.
    GOOD RIDANCE!!!!!

    WHITE TRASH HUNTER (6601f7)

  97. Thank you. I’ve been asking everyone I know, what the hell is the big deal. This is getting more tv time then when Princess Di was killed. She was someone to mourn for. She did a lot of good things. What did this piece of trailor trash do? Let’s see, she stripped for the cameras, she married a dead guy “for his money, and don’t even try to tell me they were in love” gag me, she had a stupid sitcom, if you can call it that, which pretty much just showed her humping everything around her. At least now her daughter has a chance for a normal “somewhat” life. Thank you for letting me vent. Di

    Diane Nettleton (7be0d6)

  98. Isn’t the troubling paragraph in question usually inserted in the wills of MEN who may have impregnated woman outside of marriage and the potential children of those casual unions?

    While men can have theoretically have children born that they are unaware of that could become potential heirs to their estate a woman always know exactly how many children she has birthed in her lifetime.

    The use of this paragraph in the will is very strange since reports are that she WANTED to get pregnant again with Dannilyn.

    Very, very strange and hopefully the attorney who drew it up can shed some light on why it is in her will.

    Cathy (10a73a)

  99. I dunno Kathy… She was pretty oblivious to a lot of stuff due to the drugs… I wouldn’t put it past her to not notice…

    Scott Jacobs (a1de9d)


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