Azcunce v. Estate of Azcunce

Brief Fact Summary.

Rene R. Azcunce executed a will before the birth of his daughter, appellant, Patricia Azcunce. As a result, the appellant was not included in the first will. Rene Azcunce prepared a codicil to the will after the appellant was born, but Azcunce adopted the first will without making provision for the appellant.

Synopsis of Rule of Law.

Under a pretermitted child statute, a child may take a share of her deceased parent’s estate if he or she was born or adopted after the parent made the will unless it appears from the face of the will that the omission was intentional

Facts.

Azcunce executed a codicil that republished her first will. Azcunce failed to provide for the appellant, her daughter, Patricia Azcunce in her first will or the codicil. Patricia Azcunce petitioned to take her statutory share of her father’s estate as a pertermitted child. The trial court denied her petition and Patricia Azcunce appealed. .

Issue.

Whether a child who was not in existence at the time of the creation of a will make take under a pretermitted child statute if the child was living during the creation of a codicil that republished the will.

Held.

No. When a testator executes a codicil that expressly republishes the original will, the testator’s child who was living at the time does not come within the meaning of the pretermitted child statute. The codicil republished the first will because it adopted the express terms of the original will. The face of the will is unambiguous and parol evidence is inadmissible. The draftsman may have erred in failing to inform a testator of the need to expressly provide for a child that was excluded in his first will. However this mistake does not void the will.

Discussion.

Because Patricia had been born when the codicil was executed, the Court will not allow that child to share in his parent’s estate because the reasons that the testator contemplated the child, but chose not to include her in his estate.