Probate, trust, guardianship and inheritance litigation
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Stepchildren Excluded As Beneficiaries Under Will In Oregon

In Garcia v. Clark, stepchildren were excluded from the definition of “my children” in a testator’s will.  The Oregon appellate court used Oregon law governing will construction to determine that the stepchildren were excluded as beneficiaries under the terms of the will.

The Terms of The Oregon Will

Leatha Todd died with a will in April 2017.   The will stated, in part:

“SECOND: I am married to KEITH S. TODD and all references in this Will to ‘my husband’ are to him. I have no children from this marriage.

“I was previously married and have three (3) children now living, whose names and dates of birth are:




“My husband was previously married and has two (2) children now living whose names and dates of birth are:


“DEBRA [RHYMES], * * *

“I have no deceased children who died leaving issue.

“All references in this Will to ‘my children’ or any similar term shall refer not only to my children named above but also to any child or children hereafter born to or adopted by me.

“* * * *

“SIXTH: Further, in the event that my husband, KEITH S. TODD, should predecease me * * *, then I give,  devise and bequeath all the rest, residue and remainder of my Estate * * * to my children. However, in the event that my children should predecease me then to the issue of my said children who shall be living at my death, to share and share alike, by right of representation. In the event that my children should predecease me and have no issue then surviving, then I give one half of my Estate to my then heirs at law and one half of my Estate to my husband’s heirs at law.”

Were The Stepchildren Considered Decedent’s Children Under The Terms of The Will?

Leatha’s husband predeceased her.  Therefore, Leatha’s estate was to pass to her children under section sixth of her will.

The personal representative filed a petition under ORS 114.275 seeking instructions on how to construe the will.  Specifically, the personal representative sought instruction as to whether or not the stepchildren were excluded or included in the definition of Leatha’s children under the Will.

The stepchildren argued that the will was ambiguous as to whether they were included in the definition of children, and offered extrinsic evidence as to the testator’s intent to include them as devisees.

The probate court determined that in a letter opinion that the will “unambiguously provides that the references to ‘my children’ in the will do not apply to the stepchildren.” The stepchildren appealed the judgment excluding them as beneficiaries under the terms of the Oregon will.

The Term “My Children” Excluded The Stepchildren As Beneficiaries Under The Will

On appeal, the stepchildren continued to argue ambiguity, and asked that the appellate court remand for the probate court to consider extrinsic evidence as to the testator’s intent for the distribution of her estate.

Oregon law provides the following guidelines for construing a will:

In construing a will, the “intention of a testator, as expressed in [the] will, is * * * the controlling factor.” Kidder v. Olsen, 176 Ore. App. 457, 463, 31 P3d 1139 (2001) (citation and internal quotation marks omitted; ellipsis in original); see also ORS 112.227 (“The intention of a testator as expressed in the will of the testator controls the legal effect of the dispositions of the testator.”). Generally, “a will speaks for itself,” and a court may not “resort to extrinsic evidence * * * to ascertain a testator’s intent.” LaGrand v. LaGrand, 47 Ore. App. 81, 84, 613 P2d 1091, rev den, 290 Ore. 211 (1980). However, extrinsic evidence may be used “to explain an ambiguity, intrinsic or extrinsic.” ORS 41.740; see, e.g., First Interstate Bank v. Young, 121 Ore. App. 1, 7, 853 P2d 1324, rev den, 318 Ore. 25, 318 Ore. 24, 862 P.2d 1305 (1993). Whether a term in a legal instrument is ambiguous is a legal question. See, e.g., Yogman v. Parrott, 325 Ore. 358, 361, 937 P2d 1019 (1997).

The stepchildren urged that “my children” was capable of more than one reasonable construction.  First, because they were named in section two, the reference to “my children” in the next paragraph included them.  They also argued that their inclusion in section two means that they were indeed to be devisees along with the other people named in that section as devisees, not excluded as beneficiaries under the will.

The problem with the stepchildren’s argument that they were included in the definition of “my children” under the will was that the other provisions of section two foreclose the argument that the term “my children” included the stepchildren.  Here’s the reasoning of the appellate court:

As quoted above, section two begins by identifying the stepchildren’s father, Keith Todd, as the testator’s husband. It then states that the testator has “no children from this marriage.” (Emphasis added.) It follows with the statement that the testator “was previously married and [has] three (3) children now living” (emphasis added), who are identified by name. It goes on to provide that the testator’s “husband was previously married and has two (2) children now living” (emphasis added), who also are identified by name. In light of those provisions, particularly the statement that the testator has no children from her marriage to Keith Todd, the reference to “my children,” that is, to the testator’s children, cannot plausibly include the stepchildren, who are identified in the will to be Keith Todd’s children (and not the testator’s, who are identified and named separately) and who, if they were the testator’s children for purposes of the will, would be her children because of her marriage to Keith Todd.

The court concluded that the term “my children” in the will could not reasonably be construed to encompass the stepchildren. It was clear that the testator defined her children and her husband’s children, and that “my children” referred to the testator’s children only.  The stepchildren were excluded as beneficiaries under the unambiguous terms of the will.   This case should not be read to mean that stepchildren can never be beneficiaries of a step-parent’s estate.  This case turned on the provisions of this particular will, and is not a broad statement as to the rights of step-children  in inheritance litigation.

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