Under Michigan law, the answer is this: A person might well have two fathers.
This is a story, not just about a unique set of facts and law, but about how aggressively your trial lawyer should be fighting for you.
Not long ago, I received a call from “Jimmy” a young man, who told me his father had only days before, been killed in a motorcycle accident. After sharing my sympathies with him, we set up a meeting, and at that time, “Jimmy” (not his real first name) explained the facts. His father, “John”, went out for what was supposed to be a quick, early evening late summer motorcycle ride, when a pickup truck pulled out in front of him, resulting in a fatal accident.
I told Jimmy that I would need to get him appointed as the Estate Personal Representative (PR), but that unlike other lawyers, I would not have to farm out the probate work, because probate work was (and is) part of my regular practice. Jimmy asked if it mattered that his father’s name did not appear on his (Jimmy’s) birth certificate; I indicated that while it would have certainly been easier to have his father’s name on the birth certificate, it would not be fatal. Maybe all it would take would be to commission a DNA test. I filed the Probate Court Petition to have my client appointed as the Estate PR, which in turn would be a prerequisite to my client filing a suit for wrongful death.
Not long afterward, I received a call from an area attorney, who told me that not only was my client NOT a rightful heir to his father’s estate, but that my client had already been adjudicated the offspring of another man. Worse still, he email/scanned me a very legitimate looking document that appeared to say just that. If I didn’t feel punched in the gut at that point, I certainly did, when I searched the Wayne County Friend of The Court files, and obtained documentation that, indeed, seemed to prove that my client was sired by a man, other than the decedent.
While there was no biological relationship between the decedent, John, and my client, they were truly father and son, where it counted. They did everything together, and my client had the photos from Christmas, Easter, numerous Tiger Baseball games, snowball fights to help prove it; when my client got in trouble in elementary and middle school, John (the decedent) was the one who came and spoke to school authorities. When my client got married, and started having kids of his own, John was the proud Grandpa.
My client was actually the adopted son of the decedent’s live-in girlfriend, and the relationship between my client and John, continued to flourish, even when John’s relationship with my client’s mother did not. Indeed, John continued to treat Jimmy as his own son, even picking him up from a home occupied by Jimmy’s mother and a man she had married, after she and John had broken up. Years later, when the accident happened, John & Jimmy’s mother had reconciled, and they were in fact, living together.
Naturally, this other attorney, representing the decedent’s mother, filed objections, and ultimately, we had to brief out our positions. It made intuitive sense that someone unrelated to a decedent should not be able to participate in that decedent’s estate. How could I get the court to make the leap from a knee-jerk decision based on DNA testing, to one based on the reality of the father-son relationship?
MCLA §700.2103 is a Michigan statute that explains the intestate succession rule applicable to this case, or how property would be divided, where there is no will. In essence, it said that any part of the intestate estate not going to the surviving spouse, would go first to decedent’s “descendants”, and if there were none, then to decedent’s parents. John was not married at the time of his death, and the question was whether I could qualify my biologically unrelated client, to the decedent.
MCLA §700.2114(1)(b) is another statute, and it provides for six different ways Michigan law helps to establish paternity for children, like my client Jimmy, who were born out of wedlock. The only one of the six that applied was MCLA §700.2114(1)(b)(iii), which establishes paternity where “the man and child have established a mutually acknowledged relationship of parent and child that begins before the child becomes age 18, and continues until terminated by the death of either.” THAT WAS JOHN! THAT WAS JIMMY! THAT WAS THIS CASE!
Still, I needed to worry about the previous order, adjudicating my client the son of another father. Not only did this prior order seemingly devastate my client’s case on the merits, there was that pesky “res judicata” thing to think about. Courts are prohibited by the doctrine of res judicata, from re-deciding a question that had already been decided by that court, or by another, involving the same parties and same claims.
The Difference Between an “Attorney” & “Counselor”
Going into court, we had one family torn apart by the death of a man, who was just as good a brother, son, and soulmate, as he was a father to my client. Jimmy was torn about the effect the increasingly heated litigation was having on family relationships which had previously been quite close, despite the lack of a blood/DNA relationship.
Our clients look to us as attorneys, for advice as to how to best shepherd their cases through the court system. However, they also look to us, as counselors, for guidance as to whether we should rely on the court system, in the first place. Opposing counsel was doing what he thought was his job, but he saw this case only as a “zero sum game”, to be won or lost; he was not thinking about the negative effect of the probate litigation on the grief-stricken family. While trying to win his case, he did not see how both sides could win. As well, he was not familiar with either the probate litigation, or with the eventual wrongful death litigation that would have to be filed; it had been years since he had done any negotiating whatsoever with an insurance company. These were all well within my wheelhouse.
Conscious of my client’s concerns about how this was affecting the family, I discussed some options with him, one of which was to approach opposing counsel, and to propose that we could enter a consent judgment, by which his client and mine would be co-equal Estate PR’s (or co-Personal Representatives), and by which my client would be acknowledged as decedent’s son. My client authorized me to propose this to opposing counsel.
I explained to counsel that either side (i.e., he) could lose this battle, and that the ongoing battle was hurting the family. Maybe, it might be better for everyone to satisfy themselves with “half of a loaf”, and that moreover, keeping me in this matter meant we would have counsel experienced in injury and death cases, and probate matters. Additionally, I told him I would do all the work, and all he had to do was to be ready for any communications I might have to have with his client. That way, I maintained control over the matter, and all sides’ interests were protected.
Sure, it was good to earn a fee, and to pay a referral fee to brother counsel. However, even better was that I was able to get a result that benefitted the family, both monetarily, and in terms of their relationships with one another.
Three things got this result for my client and his family:
- Creative thinking;
- Aggressive lawyering; and
- Shameless, relentless advocacy on behalf of my clients.
Call Jon Frank at The Frank Law Firm, PC, (586) 727-1900, or email me at [email protected]. I would be glad to help. Thanks for checking in.