Parker v. Parker, 131 S.W.3d 524 (Tex. App.—Fort Worth 2004, pet. denied).
In a case with a highly complex procedural history, the key issue was
whether adopted great-grandchildren are eligible beneficiaries of
certain testamentary trusts. Both the trial and appellate courts agreed
that they were eligible beneficiaries.
The court recognized that it was bound by the law as it existed at the
time the will was executed which was the 1931 version of the Texas
adoption statute that presumed that adopted children do not take under a
will executed by a third person unless the testator provided otherwise
in the will. Testator stated in the will that grandchildren had to be
“born of [the child’s] body” to qualify as beneficiaries. However,
great-grandchildren were not subject to same limitation. Instead, the
will provided that “the children, and their heirs, of any deceased child
of [the child’s] body [are] entitled to their parent’s portion per
stirpes.” Because the testator omitted the “of the body” language from
this gift over to great-grandchildren, testator intended to include
adopted great-grandchildren and the otherwise applicable presumption
against the inclusion of adopted individuals did not apply. The court
recognized that it might not be logical for the testator to exclude
adopted grandchildren but include adopted great-grandchildren. However,
the court was unwilling to redraft the will to carry out a presumed
intent.
Moral: Wills and trusts must be carefully drafted to carry out the
client’s intent. If a client wishes to exclude non-blood descendants
from taking, a clear, unambiguous statement should be included in the
will such as, “Under no circumstances may a non-blood related person
receive property under this will as a child, grandchild,
great-grandchild, or other descendant.”