Gray v. Gray

947 So.2d 1045 (2006)

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Nature of the Case

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Facts

John executed his will. He was married to Mary and had two children from a prior marriage, Robert and Monica. John's will devised all of his estate to his wife Mary and did not include his two children. John and Mary gave birth to Jack. In 1989, John and Mary divorced. John and Mary's divorce judgment and property settlement included a provision creating a trust for Jack, which states that 'one-half of all assets, inheritance or disbursements of any kind received by the Husband from his mother's estate shall be placed in trust for his son, Jack.' Although John's will devised all of his estate to Mary, Mary would not inherit under John's will upon his death because John and Mary divorced. In 2004, John died without having changed his will. William petitioned the Jefferson County Probate Court to probate John's will. Jack petitioned the probate court for an order finding that he is entitled to a share of John's estate under Ala.Code 1975, § 43-8-91. William moved to dismiss Jack's petition. The executor argued that Ala.Code 1975, § 43-8-91(a)(2), applies because John had two children when he executed his will and devised substantially all of his estate to Jack's mother, Mary. Jack was not entitled to his intestate share of John's estate. The executor also argued that Ala.Code 1975, § 43-8-91(a)(3), applies because, he argued, John provided for Jack in a non-testamentary transfer in lieu of a testamentary transfer when he established a trust in Jack's favor upon his divorce from Jack's mother. Robert and Monica, John's children from his previous marriage, also moved the probate court to dismiss Jack's petition. The probate court granted Jack's petition, holding that Jack is entitled to a distribution from John's estate equal in value to the share he would have received had John died intestate. This appeal resulted.