Section 2507 Omitted Heir Unknown Child
Estate of Rothberg, PICS Case No. 17-1115 (Pa. Super. June 23, 2017) Ford Elliott, P.J. (15 pages).
Trial court properly sustained executrix' preliminary objections and dismissed appellant's petition for declaratory judgment because 2507 of the probate code specifically dealt with birth or adoption after the parent executed a will and did not address appellant's situation in which she was born 49 years before the will was executed. Affirmed.
Appellant alleged she was a child of the deceased and after her challenge to the deceased's will was denied, she filed a petition for declaratory judgment asserting that she ought to be considered an omitted heir under 2507 of the probate, estates and fiduciaries code. Executrix argued that 2507 did not apply because appellant was born before the will was executed by decedent. The trial court dismissed the petition and appellant appealed.
The court found that there was no merit to appellant's claim that the petition should have been answered by the executrix of the estate but was not. While the preliminary objections did not state in the introduction that daughter was filing in her capacity as executrix of the estate, paragraph 2 of the preliminary objections stated "respondent is the named Executrix of Decedent's will." Daughter filed a timely response and indicated that she was responding because she was the executrix.
Appellant contended that under 2507, a child who was unknown to the testator was in a similar situation to a child who was born after the testator executed his will and that equity demanded that the unknown child should receive a share of the parent's estate. The court found that appellant was born 49 years before the will was executed and could not be considered in the same position as an after-born child. Additionally, appellant did not explain why decedent did not amend his will himself since she alleged he learned of her existence in 2004 but did not die until 2008. The court found that the trial court correctly found that 2507 specifically dealt with a birth or adoption after the parent made a will and did not mention the situation here where the child was born before the execution of the will. Furthermore, the trial court correctly did not look to the language, "among others" at the beginning of 2507 to include the situation faced by appellant. The general assembly did not insert a clause into the code that gave courts the authority to subvert the intention of a testator in the interest of equity. Section 2507 clearly referred to children born after the execution of the will.