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2010 OK CIV APP 24
231 P.3d 727
Case Number: 106200
Decided: 12/04/2009
Mandate Issued: 03/04/2010

In the Matter of the Estates of Bartley John David McLean and Beulah Simpson McLean, same person as Beulah S. McLean, both deceased:





Doug Friesen, Oklahoma City, Oklahoma, for Appellants,
Thomas B. Goodwin, Cheyenne, Oklahoma, for Appellee Jael McLean,
Thomas S. Ivester, Ivester, Ivester, & Invester, Sayre, Oklahoma, for Appellees Marcus Tye McLean, and Jaime Carol McLean.

Larry Joplin, Judge:

¶1 Appellants John L. Branson, Jeffrey Branson, and Jimmie Kay Williams (individually, by name, or collectively, Appellants) seek review of the trial court's order determining Appellees Jael McLean, Marcus Tye McLean, and Jaime Carol McLean (Appellees) to be sole and only heirs of Bartley John David McLean, Deceased, the pretermitted heir of Beulah Simpson McLean, Deceased. In this proceeding, Appellants challenge the trial court's refusal to admit evidence of the intentional omission of Bartley from Beulah's Will.

¶2 Beulah Simpson McLean had two children, a daughter and a son, Bartley John David McLean. Beulah's daughter (and her child) died in an automobile accident sometime prior to 1988.

¶3 In 1988, Beulah, a Texas resident, executed her Last Will and Testament in Texas. In her Will, Beulah devised all of her estate to her nephew John L. Branson, nephew Jerry L. Branson, and Jimmie Kay Williams, in equal shares, and, if any beneficiary predeceased her, devised "the share of my estate which he or she would have received to his or her children who survive[d]" her.1 Beulah did not mention Bartley.

¶4 Bartley died in 2000, survived by three children, Appellees Jael McLean, Marcus Tye McLean, and Jaime Carol McLean. Beulah died in 2002. At the time of her death, Beulah owned the surface and a fraction of the minerals underlying one hundred sixty (160) acres of real property in Roger Mills County, Oklahoma.

¶5 In 2006, nephew John L. Branson filed his Petition for Probate of Beulah's Will in the trial court.2 Over John L. Branson's objection, the trial court held that, prior to her death, Beulah owned a fractional interest in the minerals underlying the Roger Mills County property, and Beulah validly conveyed one-half of her interest in the surface of the Roger Mills County property to her son, Bartley.3

¶6 Appellees subsequently filed their Applications to Share in Beulah's estate as the children of her omitted son, Bartley, and Beulah's sole and only heirs at law. Appellants objected. To the objection, Appellants attached an order of a Texas District Court severing the relationship between Beulah and Bartley with Jael McLean.

¶7 At the hearing on Appellees' claim and Appellants' objection, Appellants offered a videotape of Beulah during her initial interview with the Texas attorney who drafted her Will. By offer of proof, Appellants said the tape reflected Beulah's intentional omission of Bartley from her Will, and that the tape was admissible under Texas law, the law in effect where Beulah made her Will. Appellees responded, arguing Beulah did not express her intentional omission of Bartley in her Will, and, under Oklahoma law, absent any ambiguity in the Will, extrinsic evidence was inadmissible to show such intent.

¶8 On consideration of the parties' arguments, the trial court held:

. . . . Beulah . . . omitted to provide in her will for her son, Bartley . . . , who predeceased her leaving [Appellees] as his sole and only issue.

[T]he omission by Beulah . . . to provide for her son does not appear from the four corners of her Will to have been intentional. There is no ambiguity in the text of the Will and insufficient evidence of latent ambiguity to warrant resort to extrinsic evidence to establish intent. The children of the son of Beulah . . . are pretermitted heirs entitled to intestate shares of her Oklahoma estate.

The trial court accordingly awarded Beulah's Oklahoma property to Appellees in equal shares. Appellants appeal.

¶9 "Probate proceedings are of equitable cognizance." In the Matter of the Estate of Holcomb,

¶10 Section 132 of title 84, O.S. 2001, provides:

When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, . . . .

Section 152 of title 84, O.S. 2001, provides:

In case of uncertainty, arising upon the face of a will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations.

(Emphasis added.)

¶11 Relevant to this appeal, the Oklahoma Supreme Court has consistently held:


In the Matter of the Estate of Hoobler

. . . . A latent ambiguity will arise from a fact or circumstance extraneous to the text which renders the meaning uncertain. [Wh]ere there is no ambiguity but only silence . . . the law's command has supplied its own answer. The pretermitted-heir statute superimposes itself upon the silent will to establish heirship in the protected person. The status once so created by force of law cannot be erased by parol. The needed intent for the heir's omission cannot come dehors the will from sources not testamentary in character.

Crump's Estate v. Freeman

¶12 In Estate of Flowers, testatrix and her husband adopted a girl and a boy, biological siblings.

¶13 Testatrix later executed her Last Will and Testament without mention of the girl, the trial court held the girl was a pretermitted heir entitled to share in testatrix's estate, and the Court of Appeals affirmed. Estate of Flowers,

The instant cause is similar to Crump in that the entire estate was given to [testatrix's] sisters in the will. The cause differs in that there is an extraneous fact making the will ambiguous -- the termination order, duly filed in a court of record and admitted by the trial court. The very existence of this order raises questions concerning [testatrix's] intent. If [testatrix] thought the termination order ended any relationship between [her] and [the girl], the failure to mention [the girl] in the will may well have been intentional. If she believed that some familial relationship continued to exist, did [testatrix's] stated intent to disinherit her adopted son and his 'kin' coupled with the false statement that she had only an adopted son create an ambiguity within the will? The intention of the testator is controlling; when the Court construes a will, it must ascertain and give effect to the testator's intent, unless the intent attempts to effect what the law forbids. Here, the termination order makes the admission of extrinsic evidence necessary to determine intent. We find that the existence of the termination order is an extraneous fact rendering the testatrix's will ambiguous. Parole evidence is admissible to ascertain the adoptive mother's intent.

Estate of Flowers

¶14 We distinguish Estate of Flowers from the present case. In Estate of Flowers, the parent/child relationship between the testatrix and the omitted child had been terminated by an order admitted into evidence by the trial court. In the present case, and solely according to an offer of proof, only the relationship of Bartley's child to her grandmother, testatrix Beulah, and her father, Bartley, had been terminated, not the parent/child relationship of the testatrix, Beulah, and the omitted child, Bartley. The order terminating the relationship of Beulah and Bartley to the grandchild, Appellee Jael McLean, consequently creates no ambiguity in Beulah's Will concerning Bartley's omission as to justify, under Oklahoma law, the admission of the extrinsic evidence of the video tape purportedly establishing Beulah's intent to disinherit Bartley.

¶15 Furthermore:

Except as otherwise provided, the validity and interpretation of wills is governed, when relating to real property within this state, by the law of this state; when relating to personal property, by the law of the testator's domicile.

84 O.S. 2001 §20. (Emphasis added.) See also, 16 Am. Jur. 2d, Conflict Of Laws, §61.5 So, Oklahoma law controls the devise of Oklahoma realty by a non-resident testator. Dean v. Moore, 1962 OK 177, ¶3, 380 P.2d 934, 9356; In re Adams' Estate, 1950 OK 201, ¶6, 222 P.2d 366, 3687; Bacus v. Burns, 1915 OK 401, ¶¶8-9, 149 P. 1115, 1116.8 The law of the state where real property is located also governs the determination of the rights of a pretermitted child. See, e.g., Price v. Johnson, 428 P.2d 978, 981 (N.M. 1967); Crossett Lumber Co. v. Files, 149 S.W. 908, 910-911 (Ark. 1912).

¶16 Under the Texas pretermitted-heir statute, extrinsic evidence may be admissible to show an heir's omission by "accident" or "mistake." V.A.T.S. Probate Code, §67; Estate of Gorski v. Welch, 993 S.W.2d 298, 304-305 (Tex.App. - San Antonio 1999). In Oklahoma, however, "[t]he needed intent for the heir's omission cannot come dehors the will from sources not testamentary in character," because "[o]ur pretermitted-heir statute, which makes no reference to 'accident' or 'mistake'[,] . . . confine[s] judicial inquiry to a search for the expressed testatorial intention to omit one's protected heir." 84 O.S. §132; Crump's Estate, 1980 OK 80, ¶4, 614 P.2d at 1097-1098.9

¶17 Because there is no patent ambiguity on the face of Beulah's will, the only circumstance in which extrinsic evidence might be admitted is if some latent ambiguity appears within the will's four corners. Appellants here argue that, because extrinsic evidence is admissible in the state where the will was executed (Texas), but not in the state where the real property is located (Oklahoma), Beulah's will is latently ambiguous.

¶18 However, in our view, the fact that extrinsic evidence may or may not be admissible does not create some latent ambiguity justifying the admission of extrinsic evidence in this case. By force of

¶19 The potential admissibility of evidence in one state, by itself, does not create a latent ambiguity in a will justifying the admission of extrinsic evidence. In Oklahoma, one must examine the nature of the evidence itself to determine its admissibility.

¶20 The video tape was not referred to or incorporated in Beulah's will. The video tape does not appear to have been acknowledged in the manner of self-proving testamentary documents. The tape stands outside the will and is not a "source testamentary in character." Under Oklahoma law, the video tape is inadmissible to demonstrate Beulah's intentional omission of Bartley.

¶21 Beulah failed to clearly express her intent to disinherit Bartley in her Will. Under §132, Beulah is deemed to have died intestate as to Bartley, and Bartley is Beulah's pretermitted heir. Bartley's surviving offspring are consequently Beulah's sole and only heirs at law. The trial court did not err in so holding.

¶22 The order of the trial court is AFFIRMED.

MITCHELL, C.J., concurs; HANSEN, P.J., dissents.


1 Nephew/Devisee Jerry L. Branson predeceased Beulah, but was survived by a son, Appellant Jeffrey Branson.

2 Nephew John L. Branson was appointed administrator of Beulah's Texas estate in the District Court of Hutchinson County, Texas.

3 By unpublished opinion, the Court of Civil Appeals affirmed the trial court's judgment. In the Matter of the Estates of Bartley John David McLean and Beulah Simpson McLean, Case No. 103,963 (Ok. Civ. App. Div. III, March 21, 2008) ( Petition for Certiorari denied as untimely filed, May 19, 2008) (Petition for Rehearing denied, June 16, 2008).

4 The order appears to have been obtained by Jael's mother shortly after her divorce from Bartley when Jael was about two years old.

5 "In general, all questions arising under wills in regard to real property are referred to the lex rei sitae. That is, the testamentary disposition of real property is governed by the laws of its situs. . . ."

6 "The residuary estate under consideration consists only of real property located within Oklahoma. Therefore, the fact that testatrix was domiciled in Arkansas has no bearing on our decision. This is true because of the provisions of 84 O.S.1961 § 20: 'Except as otherwise provided, the validity and interpretation of wills is governed, when relating to real property within this State, by the law of this State; when relating to personal property, by the law of testator's domicile.' We held in In re Adams' Estate, 203 Okl. 377, 222 P.2d 366; and in Bacus v. Burns, 48 Okl. 285, 149 P. 1115; that, as to the interpretation of a devise by will of real estate lying within Oklahoma, the law of Oklahoma must govern."

7 "The first question presented is whether the interpretation of the will is to be governed by the law of Texas, the domicile of the testators, or that of Oklahoma, where lies the real estate involved. This question is not an open one because foreclosed by statute, Tit. 84 O.S. 1941 §20. The statute was construed in Bacus v. Burns, 48 Okl. 285, 149 P. 1115."

8 "It is conceded that the testator was a resident of Kansas at the time the will was made, and that the same was properly executed under the laws of that state. This being true, it is entitled to probate under the laws of this state under section 8351, Rev. Laws 1910, which is as follows: 'A will, . . . , made out of this state by a person not having his domicile in this state, is as valid when executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, as if it were made in this state, and according to the provisions of this article.' Its interpretation, however, so far as the same relates to real estate located in this state, is governed by the laws of this state. Section 8336, Rev. Laws 1910."

9 "Two different approaches to the problem of an heir's omission from his ancestor's will are identified in national legal literature by reference to the Massachusetts and Missouri prototype statutes. The Missouri-type solution benefits children 'not named or provided' for in the will, whereas Massachusetts makes superimposition of heirship status subject to the qualifying phrase 'unless it shall appear that such omission was intentional and not occasioned by any mistake or accident.' Under a Massachusetts-type statute extrinsic evidence is admitted to show both presence or absence of intention to disinherit, while under a Missouri-type solution any evidence offered to rebut the statutorily-created presumption of inadvertent omission must appear within the four corners of the will. Oklahoma's pretermitted-heir provision has been characterized as Massachusetts-derived . . . [and] disallowing the use of parol proof to show testator's unexpressed intentional omission of children from the will. . . ."


¶1 The only issue in this appeal is whether extrinsic evidence, in this case video evidence taken during the creation of the will, may be admitted to show intention on the part of the testator. There is no other issue.