Heath Ledger's Estate: Why Daughter Matilda, Who Was Left Nothing in Her Father's Will, Might Have a Claim to Everything
By JOANNA GROSSMANand MITCHELL GANS
Monday, May. 12, 2008
The death at age 28 of critically acclaimed actor Heath Ledger left Hollywood stunned. His body was found in a Manhattan apartment, surrounded by a number of prescription bottles. The cause of death, according to the report of New York's chief medical examiner, was the combined toxic effect of painkillers, sleeping pills, and anti-anxiety drugs. Before his death, Ledger had been catapulted to fame by his role in the acclaimed film Brokeback Mountain, in which he gave a heartbreaking performance as a rugged, but secretly gay cowboy.
Fame was not the only outgrowth of Ledger's Brokeback Mountain performance. He and co-star Michelle Williams hooked up and became parents of a daughter, Matilda, in 2005. (Ledger and Williams never married and had broken off their relationship before Ledger died.) Ledger thus left behind a young daughter and an estate with potential complications worthy of a law school exam question. In this two-part series, we will examine the proper disposition of Ledger's estate, focusing primarily on one ultimate question: Could Matilda, who was left nothing in Ledger's will, actually inherit everything in the end?
As we lay out in this column, Ledger's entire estate could pass to his daughter even though she was omitted from his Will (probably inadvertently, as it was written prior to her birth). Her right to inherit, if any, will turn on where Ledger was domiciled at his death, which jurisdiction's laws govern his estate, and even whether tabloid reports that Ledger fathered another child many years earlier are true.
Heath Ledger's Will and the Freedom of Testation
On April 12, 2003, Heath Ledger executed a Will in his native Australia. (Though we tend to assume that young people have an insufficient sense of mortality to engage in estate planning, Ledger joins a crowd of celebrities who died tragically and young – but with a Will. Jim Morrison, found dead in a bathtub at 27, had a will. So did John Belushi, Elvis Presley, and John Lennon.)
Ledger's Will puts the bulk of his assets into a trust, the beneficiaries of which are his parents, Kim Ledger and Sally Bell, and his three sisters. The Will makes no provision for his now-two-year-old daughter, Matilda, or her mother, Michelle Williams.
Will Ledger's estate be distributed according to the wishes he expresses in his Will? That turns out to be a question complicated by Matilda, a child born after execution of the Will and not provided for in it. The "freedom of testation" that Ledger and other individuals enjoy is subject to some limits, one of which, in American law, is the right of children not to be accidentally disinherited.
When the Will was first made public, Ledger's father insisted to the press that both Matilda and Michelle would be "taken care of". However, what if Matilda is not taken care of out of the goodness of her grandparents' hearts? Does she have any direct claim to Ledger's estate as a disinherited child?
The Few, but Potentially Important, Rights of a Disinherited Child
Under American law, children have no right to inherit from their parents, but they do have the right not to be disinherited by accident – at least, in most states. At a minimum, most jurisdictions protect children who are born after the execution of a parent's will – so-called "afterborn" children – from unintentional disinheritance. Under omitted child statutes (also called "pretermitted" child statutes), the forgotten child is entitled to some share of the parent's estate on the assumption that the parent simply forgot to amend the will after the child's birth.
Let's assume that New York law applies to the distribution of Ledger's estate, because New York is the place he resided and then died. (The conflict-of-law issues will be considered in detail in Part II of this column.) Under Section 5-3.2 of the New York Estates, Powers and Trusts Law (EPTL), a child born after the execution of a parent's last will is entitled to a portion of the estate as long as she is neither provided for nor mentioned in the will. Matilda was born in 2005, clearly after execution of his will in 2003, and there is no mention in Ledger's will of future children. (In contrast, in Anna Nicole Smith's will, she intentionally disinherited all existing and future children not mentioned, putting her daughter Dannielynn's right to inherit in jeopardy – as discussed in a prior column for this site.).
When Do Children Born Out of Wedlock Inherit from Their Fathers?
Matilda's rights as a disinherited child turn on whether she is considered the "child" of Ledger under New York law. The many magazine photos of the two strolling through the park may cement the social perception of the parent-child relationship, but the legal standard is more technical.
A child born to married parents is considered to be legally the child of both – and, as such, will have full inheritance rights from both parents. However,
New York, like most other states, has different rules for determining legal parenthood of children born out of wedlock. A non-marital child is always considered the legal child of her mother and may thus always inherit from her. Yet such a child may only inherit from her father if steps were taken to establish the legal parent-child relationship, such as an acknowledgment of adjudication of paternity.
In New York, under EPTL § 4-1.2, a man is the legal father of a non-marital child if paternity has been adjudicated by a court; the parents have acknowledged paternity in writing; or paternity has been established by other "clear and convincing" evidence and the father has "openly and notoriously acknowledged" the child as his own.
Here, it seems pretty clear that Ledger's paternity has been adequately established. He is listed as the father on her birth certificate, and he lived with Matilda and Michelle for the first year of Matilda's life. (Plus, all the photos in US Weekly of Ledger pushing her stroller do support the claim of open and notorious acknowledgment.)
Moreover, a recent appellate case in New York rules that a child can get posthumous DNA paternity testing as long as she can show open acknowledgment of paternity. So, one way or the other, Matilda should be able to establish a parent-child relationship with Ledger.
To What Share of a Parent's Estate is an Afterborn Child Entitled?
As an after-born child, what portion of Ledger's estate might Matilda be entitled to? Now, this is where the story gets interesting. Under New York's omitted child law, when a testator has no children living at the time the will is executed, the afterborn child is entitled to the same share she would have taken had the testator died without a will (in legal terms, "intestate"). In other words, the afterborn child is entitled to her "intestate" share of his estate, and the will is revoked to the extent of that share.
The laws of intestate succession determine who succeeds to a decedent's estate and in what proportions when the individual died without a will. These laws tend to first give priority to a decedent's spouse, but then seek to distribute the estate to the closest surviving relatives, with descendants always being preferred to ancestors. As a general matter, for example, parents of a decedent would never take under the rules of intestacy unless the decedent had not a single living descendant.
In this case, New York's intestacy laws lead us to a somewhat striking result: Matilda, who was omitted from her father's will entirely, would be entitled to everything. Why? Under EPTL §4-1.1, when a decedent is survived by no spouse, the decedent's "issue" (a legal term that includes any direct descendant of the deceased such as children and grandchildren) take everything. Ledger was single when he died (he had never been married), so Matilda is next in line.
What about the Will, which was designed to benefit Ledger's parents and sisters? If New York law governs disposition of his estate, his Will would be revoked in its entirety by the pretermitted child law. Ledger's Will, in other words, could be declared valid, but, ultimately, completely revoked by the share due Matilda.
This result is counterintuitive, yet,clearly supported by both statutory and caselaw in New York. In a 2003 ruling of a probate court in New York, Lance Nelson's entire estate was given to his infant daughter under the omitted child law, even though he had executed a valid will leaving everything to his parents. As the court explained in that case: "If Ashley Nelson is determined to be an afterborn child and was unprovided for by any settlement, the Will is revoked to the extent of her intestate share. If she is the only child of the decedent, that intestate share is the entire estate and the entire dispositive provisions of the Will are revoked." If Ledger's Will were probated in New York, and governed by New York law, this exact same analysis would apply, and Matilda would inherit his entire estate.
What Effect Might a Second, Pre-Will Child Have on Matilda's Claim?
After Ledger died, tabloids reported that Ledger might have fathered a child long before he fathered Matilda. There is an as-of-yet-unsubstantiated claim that he fathered a child while still in high school in Australia, with an older woman. If this claim is true, would the existence of that child (claimed to currently be an 11-year-old girl) have any effect on the distribution of Ledger's estate?
That depends largely, at least under New York law, upon whether the criteria for legal parenthood would be met. There is no reason to think, with the current evidence, that Ledger had acknowledged paternity of the Australian child, had a DNA test during his life to determine paternity, or indeed even knew about her. As a result, under New York's § 4-1.2, at least as presently interpreted, the child would be unable to prove paternity.
But what if the Australian girl were nonetheless determined to be Ledger's child? Such a claim might be made either by the girl (through her mother or another representative), by pointing to the law of some other jurisdiction, or by Ledger's parents and sisters, in order to wholly defeat Matilda's rights.
The latter claim is somewhat counterintuitive: As a child born prior to the execution of the Will, the Australian girl is not protected by New York's omitted-child law. So how can her existence, if the law treats her as Ledger's legal child, deprive Matilda of her after-born share?
Here is the logic behind New York's rule: If the testator omitted a child who was already in existence when he wrote his Will (for Ledger, this would be the Australian girl), how can we assume that he would have provided for the after-born child (for Ledger, Matilda)? To the contrary, we might assume that he intentionally had disinherited and would continue to disinherit, any and all children he might have. That assumption might be unfair in a particular case – Ledger may not have know about the Australian girl (if she exists) and that may be the only reason he did not include her in his Will. But the assumption applies in all cases, and cannot be rebutted.
This complex scenario arises, as we have noted, if New York law is applied to Ledger's estate. But that choice of law is not a foregone conclusion. Thus, in Part Two of this two-part series, we will address the question of which jurisdiction's laws apply to his estate. As we will explain, there is a good argument for the application of New York law to Ledger's estate but, perhaps, equally good arguments for the application of either California or Australian law. We will explain how to determine the appropriate law to apply and how the outcomes might differ in each jurisdiction.