5-2 court rules for kids over alleged sibling

Georgia Supreme Court reverses probate judge's decision on inheritance for daughter allegedly fathered out of wedlock

By Ben Smith
The Daily Report
05/18/2010

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The Georgia Supreme Court on Monday denied a Hall County woman's bid to inherit a portion of the estate left by a man she claims fathered her out of wedlock.

The court split 5 to 2 in the decision, with the majority finding that the purported father of Regina Gordon Todd intentionally left her out of his will.

The dissenters, Justices P. Harris Hines and Hugh P. Thompson, said the ruling "takes a giant step backwards in the development of the law in regard to the rights of biological children born without the benefit of marriage."

The high court ruling reverses a probate judge's decision to allow Todd to provide evidence she is the biological daughter of John E. Buffington and would be entitled to a portion of his estate. Buffington died in 2006.

According to the Gainesville Times, Buffington was a road construction contractor and owned a 2,000 acre farm in East Hall County.

Todd's attorney, J. Vincent Cook of Athens, did not return a phone call seeking comment.

The lawyer for the two Buffington daughters who filed the state Supreme Court appeal called the case "a cautionary tale" for lawyers who draft wills.

"This was a case where the drafter of the will was not aware of the child allegedly born out of wedlock," said attorney Wade H. Watson III. "Had the testator told the drafter of this other child, they could have drafted the will more clearly."

Court records cited in the decision indicate that Todd might have a strong claim that she is also Buffington's daughter. Hines pointed to evidence that Buffington acknowledged that he'd had an affair with Todd's mother and that Todd was their child.

In Buffington's will, he declares his intention to leave his estate to his children, defined as "lawful blood descendants," according to the high court ruling.

"I have two living children," states Buffington in the will. He identifies them as Beth Buffington Hood and Ginger Buffington Folger.

The court majority said the definition is clear, rendering the question of Todd's parentage irrelevant.

"A testator may make any disposition of his property he chooses, so long as not contrary to law or public policy, even to the exclusion of his spouse and/or descendants," wrote Chief Justice Carol W. Hunstein for the majority.

"By defining the term 'children' as 'lawful blood descendants,' Buffington also demonstrated his intent that his child born out of wedlock not be included as a beneficiary under his will," Hunstein stated.

Hines and Thompson disagreed and argued that Todd's evidentiary hearing in probate court should be allowed to take place.

"The opinion of the majority," stated Hines in his dissenting opinion, "is premised upon an ill-supported finding of testamentary intent based upon the faulty and perilous legal conclusion that the term 'lawful,' when used to describe blood descendants named in a will, necessarily precludes biological children born out of wedlock."

Hines noted that Todd and Buffington "apparently had a good relationship" and that Buffington had designated her the beneficiary for two life insurance policies.

An expert on family law said Todd could have perhaps once made a valid claim to be Buffington's heir. But that time has long passed.

"The alleged daughter, or her mother, should have asserted rights against the father while alive," said Randall M. Kessler, vice chairman of the ABA Family Law Section. "The only rights against the estate that might exist would be for support of the child while she was a minor."

Even that would be an uphill battle, said Kessler, who is partner with Kessler, Schwarz & Solomiany.

Kessler agreed that lawyers drafting wills and their clients should be more careful.

"To be safe, children being intentionally left out of a will should be mentioned by name, even if paternity is in doubt.

"The problem is that this would cause people to disclose relationships they may not want to disclose," Kessler said, "but my opinion is that is a cost of having the relationship."

Watson, the lawyer for the Buffington daughters, didn't go quite that far.

"A lot of times, the lawyer drafting the will is representing a husband and his wife," Watson said. "If the husband has an out-of-wedlock child somewhere, he might not say that. ... It's a dangerous area."

Watson said he disagreed with dissenting justices that the high court's decision sets a bad precedent.

"All the Supreme Court did was to rule that this particular testator intended to exclude this particular person," Watson said. "You really can't extend this to any other case."

The case was Hood v. Todd, No. S10A0131.

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