By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate & Probate Litigation Attorney

Today’s blog takes us to the prairies and farmlands of Nebraska in an old-fashioned property dispute.  In Burnett v. Maddocks, Charles Maddocks writes a will directing the executor to purchase farmland.  His nephew, Walter, would have a life estate in the property.  Upon Walter’s death, his son Merrill would get a life estate on the property.  On Merrill’s death, the property would pass to Merrill’s eldest son as a property free of any encumbrances.  Should Merrill not have a son, then the property passes to the eldest grandson in Walter’s male line, and if no grandson exists, then all of Walter’s heirs at law shall own the property.  Burnett, whose mother married Merrill when he was alive, was an adult when he was adopted by Merrill in Colorado in 2006 as Merrill’s “heir at law.”  Merrill had no surviving children when he died.  So Burnett filed an action to quiet title, stating that as Merrill’s heir by adoption, he is entitled to the farm.  Jeffrey Maddocks, the eldest grandson in Walter’s male line and the next in line to get the property should Merrill have no surviving children, jumped in and claimed that Merrill was not a son as contemplated by Charles’s will, making Jeffrey the rightful owner of the property.

Interestingly, the Nebraska Supreme Court in 1989 ruled in a similar case that an adopted adult is considered the adopter’s child for purposes of property succession in a will when the will was drafted before Nebraska allowed adult adoption.  But this adoption occurred in Colorado.  While an adoption will be recognized by Nebraska under the Full Faith and Credit clause of the US Constitution if it doesn’t violate public policy, this wasn’t a full adoption where the rights of the biological parent are severed and the person becomes the legal child of the adopter.  Instead, the adoption in Colorado made Burnett an “heir at law” which declares the person to be able to inherit from the petitioner as if the person was the child born in lawful wedlock, inheriting should the “adopter” die without a will.

But did that make Burnett Merrill’s son for purposes of inheriting the property?  In a similar case decided in California, the court there held that being an “heir at law” was not a child for purposes of determining whether the person can inherit under another’s will because Colorado does not give this person the same rights and duties that normally exist between a parent and a child.  The court then held that Burnett was simply an heir at law, and not what Charles meant when he wrote in his will to give to Merrill’s eldest son.  It then awarded the property to Jeffrey as the grandson since Merrill had no surviving children.

The logic is sound because an heir exists for when a person dies without a will, and doesn’t create a parent-child relationship.  Based on the court’s logic, had the will been thrown out for some reason, the court would have declared Merrill intestate, and under the Court’s logic, Burnett would be the sole heir for the property.  It is therefore surprising that there was no argument made that the will should be considered invalid as a backup argument.  Perhaps that argument never made it up to appeal, or would be considered too late to take action, since Charles died in 1938.

To discuss your NJ Estate & Probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.