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Estate of Seward (6/2/2017) sp-7175

           Notice:   This opinion is subject to correction before publication in the P                       ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                          



Estate  of  JAMES  V.  SEWARD,                                         )      Supreme  Court  No.  S-15561  

Deceased.                                                              )  

                                                                                                                                          

                                                                       )      Superior Court No. 3AN-13-02105 PR  

                                                                       )  

                                                                                                   

                                                                       )      O P I N I O N  

                                                                       )  

                                                                                                               

                                                                       )     No. 7175 - June 2, 2017  



                      A                                                                                           

                         ppeal from the Superior Court of the State of Alaska, Third  

                                                                                                     

                      Judicial District, Anchorage, Erin B. Marston, Judge.  



                                                                                                                     

                      Appearances:  Vincent E. Mock and Gaylene L. Mock, pro  

                                                                                                            

                      se,  Lexington,  Kentucky,  Appellants.                             Donna C.  Willard,  

                                                                                                             

                      Personal Representative of the Estate of James V. Seward,  

                                            

                      Anchorage, Appellee.  



                                                                                                                     

                      Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                     

                      Bolger, Justices.  



                                            

                      WINFREE, Justice.  



I.         INTRODUCTION  



                                                                                                                                   

                      A decedent left a will stating he had no children.   But during probate  



                                                                                                                                     

proceedings a man in his early 30s claimed to be the decedent's son, requested genetic  



             

testing on the decedent's cremated remains, and filed numerous motions in an attempt  



                                                                                                                                            

to share in the decedent's estate.  The man's mother also filed numerous motions in the  



                                                                                                                                             

proceedings, claiming to be a creditor of the decedent's estate and seeking recovery of  



                                                                                                                                      

child support from the man's birth to his 18th birthday.  After previously signing orders  


----------------------- Page 2-----------------------

                                                                                                                      

denying   the   motions   based   on   the   probate   master's   reasoning   that   paternity  



                                                                                                                             

determinationsmay not bemadein estateproceedings, thesuperior court ultimatelyruled  



                                                                                                                               

that:  (1) laches barred the man's and his mother's efforts to establish paternity; and  



                                                                                                                               

(2) because paternity had not been established, neither the man nor his mother had  



                                                             

standing to pursue a claim in the estate proceedings.  



                                                                                                                    

                     We  disagree  with  the  probate  master  and  superior  court's  underlying  



                                                                                                                               

conclusion that a paternity determination may not be made in estate proceedings.  We  



                                                                                                                                

also disagree with their conclusion that a laches defense could apply in this context. We  



                                                                                                                                

nonetheless affirm the superior court's decision with respect to the man's mother on the  



                                                                                                                            

alternative ground that her putative creditor claim - the only basis by which she could  



                                                                                                                                

be an interested person in the estate proceedings - unquestionably is barred by the  



                                                                                                                               

applicable statute of limitations.  But if the man proves to be the decedent's son he has,  



                                                                                                                    

at a minimum, certain statutory rights that:  (1) may be established through declaratory  



                                                                                                                                 

judgment  in  the  probate  proceedings;  and  (2)  might  not  be  barred  by  a  statute  of  



                                                                                                                          

limitations.  Because the statute of limitations defense to the man's claim was briefed  



                                                                                                                               

only in limited fashion in the superior court and was not ruled on by that court, and  



                                                                                                                                

because the issue has not been adequately briefed to us, we: (1) explain in detail how the  



                                                                                                                              

man  may  be  entitled  to  a  statutory  allowance  from  the  estate;  and  (2)  order  that  



                                                                                                                     

supplemental briefing be filed to assist us in resolving whether a statute of limitations  



                                                           

may bar the man's recovery from the estate.  



                                  

II.        FACTS AND PROCEEDINGS  



                                                                                                                         

                     James V. Seward executed a will on September 11, 2008.  In it Seward  



                                                                                                                              

stated: "I hereby declare that I am a single man and that I have no children, nor do I have  



                                                                                                                      

any deceased child or children with lineal descendants now living."   The will also  



                                                                                                                             

provided:   "If any relative, or person claiming to be an heir or relative, or any other  



                                                                                                                                   

person whomsoever, should attempt by legal action or otherwise, to contest this Will, I  



                                                                -2-                                                         7175
  


----------------------- Page 3-----------------------

hereby give [such person] the sum of $1.00 . . . ." Seward appointed Donna Willard, the                                                                                                                                                              



attorney who prepared the will, as his estate's personal representative; he instructed that                                                                                                                                                        



his body be cremated and the ashes scattered on the mountains overlooking Anchorage;                                                                                                                                       



and he expressed how he wanted his estate distributed.                                                                                                               Seward died in Anchorage in                                                        



May 2013 at age 90.                                           



                                       In August 2013 Willard applied for informal probate of Seward's will and                                                                                                                                    

                                                                                                                                                     1  Willard stated that she believed the  

appointment as the estate's personal representative.                                                                                                                                                                                                 



will was "validly executed," and that she was "unaware of any instrument revoking [the]  

                                                                                                                                                                                                                                                



will."  But she also stated that the will was executed "the 11th day of September 2011"  

                                                                                                                                                                                                                                            



when in fact the will was executed on September 11, 2008.  In September Willard's  

                                                                                                                                                                                                                                 



application for informal probate of the will "dated September 11, 2011" and appointment  

                                                                                                                                                                                                                          



as personal representative was approved by the probate master.  

                                                                                                                                                                                            



                                       In October Vincent Mock - self-represented - filed a motion requesting  

                                                                                                                                                                                                                               



genetic testing on Seward's ashes to prove he is Seward's son.  The following month he  

                                                                                                                                                                                                                                                       



asked that Seward's estate not be distributed until he could establish Seward's paternity.  

                                                                                                                                                                                                                                                                 



Willard  opposed  both  motions,  contending  that  Seward's  ashes  already  had  been  

                                                                                                                                                                                                                                              



scattered according to his will and that even if Vincent could prove Seward's paternity,  

                                                                                                                                                                                                                                  



Vincent would not be entitled to estate assets because he was not mentioned in Seward's  

                                                                                                                                                                                                                                   

will, was not a minor child entitled to statutory protection,2  and was not a pretermitted  

                                                                                                                                                                                                                     



                    1                  See  AS13.16.080-.130                                               (establishinginformalproceduresforacceptingwill                                                                                         



for probate and appointing personal representative);                                                                                                      see also                 AS 13.16.010 (providing                    

that will may be declared valid by order of informal probate); AS 13.16.350 (stating                                                                                                                                                   

personal representative's duty to settle and distribute estate according to probated will).                                                                                                                                                   



                    2                  See  AS 13.12.401-.405 (establishing homestead, exempt property, and  

                                                                                                                                                                                                                                                  

family allowances for protection of surviving spouse and certain children).  We discuss  

                                                                                                                                                                                                                                         

these statutory allowances in detail later in this opinion.  

                                                                                                                                           



                                                                                                                           -3-                                                                                                                 7175
  


----------------------- Page 4-----------------------

               3  

heir.   In reply Vincent insisted the urn and airplane used to transport Seward's ashes still                                                                                                                                                                                



 could contain ash remnants. Vincent stated that Seward knew Gaylene Mock, Vincent's                                                                                                                                                                      



mother, bore Seward a child and that the assertion in Seward's will that he had no                                                                                                                                                                                              



 children was the result of memory loss or coercion.                                                                                                                       Vincent argued that the will was                                                                 



invalid, requiring intestate distribution to himas the sole heir, or alternatively that he was                                                                                                                                                                               



 a pretermitted heir because he was "unintentionally . . . omitted from the will" and was                                                                                                                                                                                   



not "specifically disinherited."                                                                      



                                            The probate master recommended denying Vincent's motion for ashes                                                                                                                                                         

                        4   stating:   "Probate of [a] last will is not [the] proper venue for [a] paternity  

testing,                                                                                                                                                                                                                                                   



 contest. Vincent Mock is not an interested party in [the] estate." The probate master also  

                                                                                                                                                                                                                                                                            



                      3                     To pretermit in the legal sense means "[t]o neglect, overlook, or omit                                                                                                                                                       



 accidentally; esp. to fail to include through inadvertence."                                                                                                                                      Pretermit, B                                LACK 'S   LAW  

DICTIONARY   (10th ed. 2014).                                                                         AS 13.12.302(a), Alaska's pretermitted heirs statute,                                                                                                      

provides:   "[I]f a testator fails to provide in the testator's will for the testator's children                                                                                                                                                              

born or adopted after the execution of the will                                                                                                        , the omitted after-born or after-adopted                                             

 child receives a share in the estate as follows . . . ." (emphasis added).                                                                                                                                                    Vincent was born                           

in 1982.                     



                      4                     As we have noted previously:  

                                                                                                        



                                            The                standing                          probate                        master                      conducts                            hearings                          and  

                                                                                                                                                                                                                             

                                            recommends findings and conclusions to the superior court.  

                                                                                                                                                                                                                                                

                                            It is the superior court that makes final decisions, and before  

                                                                                                                                                                                                                         

                                            doing so the court may permit oral argument or additional  

                                                                                                                                                                                                   

                                           briefing, may allow the taking of additional evidence, and  

                                                                                                                                                                                                                                 

                                            may grant a trial de novo.  

                                                                                                             



In re Estate of Fields, 219 P.3d 995, 1007 (Alaska 2009) (footnotes omitted) (citing  

                                                                                                                                                                                                                                                                   

Alaska R. Prob. P.2(b), (e), (f)(1)).   And as we also have noted previously, Probate  

                                                                                                                                                                                                                                                               

Rule 2 "does not create an inferior probate court over which the master presides." Id. at  

                                                                                                                                                                                                                                                                                    

 1005 (rejecting "misconception that the probate court is something different from the  

                                                                                                                                                                                                                                                                               

 superiorcourt"and explaining that when adoptingUniformProbateCode, "Alaskachose  

                                                                                                                                                                                                                                                                       

 [to place] subject matter jurisdiction for probate matters with the superior court").  

                                                                                                                                                                                                                                                 



                                                                                                                                        -4-                                                                                                                              7175
  


----------------------- Page 5-----------------------

                                                                                                                                

recommended  denying  without  prejudice  Vincent's  motion  regarding  disbursal  of  



                                                                                                                               

Seward's estate, stating again that an "[e]state case is not [the] proper venue for [a]  



                                                                                                                                 

paternity contest[,] and Mr. Mock lacks standing because he is not an interested party in  



                                                                                                                               

[the] estate case."  Finally, on a third recommended order denying both motions, the  



                                                                                                                           

probate  master  reiterated  that  a  paternity  determination  is  not  appropriate  in  estate  



                                                                                                                     

proceedings, adding that even if Vincent were Seward's son, "he is not an heir according  



                                                                                                                          

to [the] last will."  In December the superior court signed all three recommended orders  



                              

without comment.  



                                                                                                                         

                    Meanwhilein November Gaylene -alsoself-represented -filed amotion  



                                                                                                                              

requesting that the court acknowledge Seward as Vincent's father.  Gaylene stated that  



                                                                                                                              

she lived with Seward "off and on for thirteen years" and that Seward knew she was  



                                                                                                                              

pregnant with his child because she "told him so."  In opposition Willard argued that  



                                                                                                                           

Gaylene should have filed a separate superior court action and not a motion in the estate  



                                                                                                                  

proceedings.  Willard also contended that Gaylene had "no standing . . . to establish  



                                                                                                                               

paternity on behalf of her adult son"; Gaylene was not the real party in interest for  



                                                                                                                              

seeking a paternity determination or the child support alleged nowto be due Vincent; and  



                                                                                                                                

Gaylene's  motion  was  time-barred  under  even  the  most  liberal  ten-year  statute  of  



                                                                                                                       

limitations.         The  probate  master  recommended  denying  Gaylene's  motion  without  



                                                                                                                                 

prejudice because "[a] probate proceeding is not [the] correct venue for [a] petition to  



                                                                                      

establish paternity," Gaylene "lack[ed] standing as [an] interested party," and Vincent  



                                                                                                              

"is not an heir" under the will. In December the superior court signed the recommended  



                                       

order without comment.  



                                                                                                                                

                    Also in December Vincent filed a motion to conduct genetic testing on  



                                                                                                                               

Seward's sister in California, contending that the testing would establish Seward as his  



                                                                                                                              

father.      Willard  opposed  the  motion,  arguing  that  the  estate  proceedings  were  not  



                                                                                                                         

appropriate for apaternity determination, theapplicablestatuteof limitations had passed,  



                                                               -5-                                                         7175
  


----------------------- Page 6-----------------------

and Alaska's long-arm statute was not sufficient to establish personal jurisdiction over                                                                                                                           



the sister. Vincent replied that because the sister was a beneficiary under Seward's will,                                                                                                                         



the court could establish personal jurisdiction. In January 2014 the probate master noted                                                                                                                        



that   in   December   2013   the   court   had   denied   Vincent's   motion   for   genetic   testing,  



referring to the order denying genetic testing on Seward's ashes.  The master made no                                                                                                



specific recommendation regarding Vincent's motion for genetic testing of Seward's                                                                                                                    



sister, and it does not appear the superior court took further action on the motion.                                                                                                                                

                                                                                                                    5    against  the  estate  in  March,  claiming  

                                  Gaylene   filed  a   creditor   claim                                                                                                                                



Seward's estate owed her "20% of . . . Seward['s] yearly [i]ncome from the year 1982  

                                                                                             

to the year 2000" for child support.   Willard disallowed the claim6  based on lack of  

                                                                                                                                                                                                                         



standing, the applicable statute of limitations, and failure to present the claim against the  

                                                                                                                                                                                                                       



                                                                                                7                                                                                                                           8  

                                                                                                     Gaylene then filed a petition to allow her claim.   

estate within the required time period.                                                                                                                                                                      

                                                                               



Willard opposed Gaylene's petition, arguing: "paternity has never been established, this  

                                                                                                                                                                                                                      



is the wrong forum in which to establish it, [and] it is too late to establish it both factually  

                                                                                                                                                                                                        



                 5                See   AS 13.16.465 (setting                                             out manner                       for   presenting   claims against a                                             



decedent's estate).   



                 6                See AS 13.16.475(a) (providing that personal representative may disallow  

                                                                                                                                                                                                         

claims presented to estate).  

                                                    



                 7                AS 13.16.460(a)(1) provides:  

                                                                                       



                                  All claims against a decedent's estate that arose before the  

                                                                                                                                                                                    

                                  death of the decedent . . . if not barred earlier by other statute  

                                                                                                                                                                            

                                  of  limitations,  are  barred  against  the  estate  .  .  .  unless  

                                                                                                                                                                     

                                  presented . . . within four months after the date of the first  

                                                                                                                                                                                  

                                  publication  of  notice  to  creditors  if  notice  is  given  in  

                                                                                                                                                                                     

                                  compliance with AS 13.16.450 . . . .  

                                                                                                                          



                 8                See AS 13.16.475(a) (barring disallowed claimunless claimant files timely  

                                                                                                                                                                                                               

petition for allowance).  

                               



                                                                                                            -6-                                                                                                   7175
  


----------------------- Page 7-----------------------

and because of the prejudicial delay in waiting so long to try to do so."                                                                                                                                                     In her reply           



Gaylene contended that Willard had no actual authority to deny her claim because the                                                                                                                                                                        



2008 will was not valid, as it had not been accepted for probate; rather a "September 11,                                                                                                                                                                   



2011" will had been accepted, but it had been lost. The superior court apparently did not                                                                                                                                                                   



rule on Gaylene's petition, although her proposed order was stamped "not used" in the                                                                                                                                                                       



probate master's signature block.                                                                      



                                        Vincent and Gaylene filed a number of other motions not relevant to this   



appeal, and Willard eventually sought to preclude Vincent and Gaylene from filing                                                                                                                                                                   



further   motions.     Willard   argued   that   Vincent   and   Gaylene   "persist   in  filing  ill- 



considered motions, wasting the time and resources of both the Court and the Estate"                                                                                                                                                           



even though they "are [not] interested parties and hence they have no standing to inject                                                                                                                                                             



themselves into this proceeding."                                                                       Gaylene responded that Vincent was an interested                                                                                

                                                                                                                                                                                                                  9   Willard replied  

person as Seward's son and she was an interested person as a creditor.                                                                                                                                                                           



that Gaylene had no proof of paternity and that Gaylene had not filed her child support  

                                                                                                                                                                                                                                               



claim within the four-month window provided by AS 13.16.460(a)(1).  Willard again  

                                                                                                                                                                                                                                                     



reminded the court it already had ruled that Vincent and Gaylene were not interested  

                                                                                                                                                                                                                                        



persons in the probate proceedings.  

                                                                                                             



                                        In athree-pagereport issued in lateMarchtheprobatemaster recommended  

                                                                                                                                                                                                                           



precluding Vincent and Gaylene from filing further motions because neither was an  

                                                                                                                                                                                                                                                             



interested person in the estate proceedings. The master noted there had been no paternity  

                                                                                                                                                                                                                                           



determination despite the lengthy opportunity to obtain one before Seward's death. The  

                                                                                                                                                                                                                                                          



master  also  reasoned  that  waiting  until  after  Seward's  death  to  bring  their  claims  

                                                                                                                                                                                                                                                



                    9                   See AS 13.06.050(24) (defining "interested person" in decedent's estate to  

                                                                                                                                                                                                                                                                

include decedent's children and creditors).  

                                                                                                  



                                                                                                                               -7-                                                                                                                                 7175  


----------------------- Page 8-----------------------

                                                                                                                                

"work[ed] substantial prejudice on his estate," justifying the application of laches to bar  



                  

the claims.  



                                                                                                                               

                    Vincent objected to the master's report, arguing that Seward's 2008 will  



                                                                                                                         

was invalidly admitted to probate because the order accepting Seward's will for probate  



                                                                                                                        

expressly  referred  to  a  "September  11,  2011"  will,  and  not  a  2008  will.                                     Vincent  



                                                                                                                                

therefore suggested that Seward had a 2011 will that had been lost and argued that the  



                                                                                                                               

referenced 2011 will may have mentioned himor his mother. Vincent further argued that  



                                                                                                                                

he always had intended "to establish paternity with [his] father . . . [but] just did not  



                                                                                                                               

expect him to die."  Gaylene also objected to the master's report, arguing that it was  



                                                                                                                                   

wrong to rely on the 2008 will when the order accepting a will for probate referred to a  



                                                                                                                             

2011 will.  Gaylene stated that she and Seward had planned on marrying but their plans  



                                                                                                                                

fell through, and that she had omitted Seward's name fromVincent's birth certificate and  



                                                                                                                                      

not sought child support because Seward "had a violent temper" and would often hit her.  



                                                                                                                                

                    Also in March Vincent and Gaylene filed motions to remove Willard as the  



                                                                                                                                

personal representative of Seward's estate.  Their arguments again centered around the  



                                                                                                                             

possible existence of a 2011 will; Vincent questioned whether in a September 11, 2011  



                                                                                                               

will Seward disposed of his assets differently than in the September 11, 2008 will that  



                                                                                                                   

had been admitted for probate.  Willard responded:  "Unfortunately, in my application,  



                                                                                                                        

I made a typographical error utilizing the number 11 for both the day and the year [of  



                                                                                                                                

Seward's will].  In fact, as the Will evidences, its date of execution was September 11,  



                                       

2008."  In reply Vincent again argued that Willard apparently had probated the wrong  



                                                                                                                                

will and that a September 11, 2011 will actually existed or had been destroyed by  



                                                                                                  

Willard.  In May the superior court denied without explanation the motions to remove  



                                                       

Willard as personal representative.  



                    In March Vincent also had asked the court to recognize him as Seward's  



                                                                                                                         

pretermitted heir. Vincent argued he had been "accidentally overlooked" when Seward  



                                                                -8-                                                         7175
  


----------------------- Page 9-----------------------

created his will but had not been specifically disinherited.                                               Vincent also argued he was                  



a "rightful" and "only" heir entitled to Seward's entire estate.                                                     Willard responded by                 

                                                                                                                                     10 but Vincent  

pointing out that a pretermitted heir must be born after the will's execution,                                                                  



was born more than 25 years before Seward executed his will.  She also argued that if  

                                                                                                                    



Seward had been aware of Vincent, Seward declined to acknowledge Vincent was his  

                                                  



son by declaring in his will that he had no children deceased or living.   Citing the  

                                                                                                                                                        



provision of the will providing one dollar to any person who contests it, Willard also  

                                                                                                                                                       



contended Seward "made it plain" that the will's provisions "were not to be attacked by  

                                                                                                                                                          



any relative or person claiming to be an heir or relative." In early May the superior court  

                                                                                                                                                     



denied without explanation Vincent's motion seeking recognition as a pretermitted heir.  

                                                                                                                                                                



                        The superior court in early May also adopted the probate master's March  

                                                                                                                                                  



report as its order, precluding Vincent and Gaylene from filing further motions because  

                                                                                                                                                



they were "not interested parties in the estate proceeding."  Vincent petitioned for our  

                                                                                                                                                        



review of this order, emphasizing both that he was Seward's son and the significance of  

                                                                                                                                                           



the alleged will date discrepancy, contending that (1) there existed somewhere a valid  

                                                                                                                                                     



2011 will and (2) the 2008 will had not been effectively registered for probate.  Vincent  

                                                                                                                                                



also argued that his mother was a creditor and qualified as an interested person in the  

                                                                                                                                                         



estate proceedings. Willard opposed the petition, largely reiterating her arguments made  

                                                                                                                                                     



to the superior court.   Because the superior court's order was a final judgment as to  

                                                                                                                                                          



Vincent (and Gaylene), we converted Vincent's petition for review into an appeal and  

                                                                                         



ordered full briefing.  Gaylene filed a notice of participation and joined Vincent in the  

                                                                                                                                                         



appeal.  

               



            10  

                                        

                        See AS 13.12.302(a).  



                                                                            -9-                                                                           7175  


----------------------- Page 10-----------------------

III.	        DISCUSSION  



                                                                                                                                        

             A.	         The Probate Statutes Contemplate That A Paternity Adjudication  

                                                                                                             11  

                                                                                     

                         May Be Made During Estate Proceedings. 



                                                                                                                                               

                         The          superior            court         repeatedly               adopted             the       probate            master's  



                                                                                                                                                             

recommendations to deny Vincent's and Gaylene's paternity-related motions on the  



                                                                                                                                                         

 ground thatpaternity cannot beadjudicatedduringprobate estate proceedings. But when  



                                                                                12  

                                                                                                                                                       

the superior court acts as the probate court                                        it "has 'jurisdiction over all subject matter  



                                                                                                                                                        13  

                                                                                                                                                            and  

relating to' decedents' estates . . . 'to the full extent permitted by the constitution,' " 



                                                                                                                                                               

 "when exercising probate jurisdiction a superior court 'should continue to exercise its  



                                                                                                                                          14  

                                                                                                                                                       

jurisdiction' to resolve 'questions ancillary' to the probate proceedings."                                                                    By statute  



                                                                                                                                                            

that subject matter jurisdiction expressly extends to the "determination of heirs and  



                                                15  

                           

 successors of decedents." 



             11          "We interpret statutes according to reason, practicality,                                             andcommon sense,         



 considering   the   meaning   of   the   statute's   language,   its   legislative   history,   and   its  

purpose."   Pestrikoff v. Hoff                        , 278 P.3d 281, 283 (Alaska 2012) (citing                                       In re Estate of          

Maldonado, 117 P.3d 720, 725 (Alaska 2005);                                                Grimm v. Wagoner                    , 77 P.3d 423, 427           

 (Alaska 2003)). We "adopt 'the rule of law that is most persuasive in light of precedent,                                                      

reason, and policy.' "                   Maldanado, 117 P.3d at 725 (quoting                                    Guin v. Ha          , 591 P.2d 1281,       

 1284 n.6 (Alaska 1979)).          



             12          In re Estate of Fields, 219 P.3d 995, 1005 (Alaska 2009) (explaining that  

                                                                                                                                                            

when  adopting  Uniform  Probate  Code  "Alaska  chose  [to  place]  subject  matter  

                                                                                                                                                      

jurisdiction for probate matters with the superior court" and probate court is not different  

                                                                                                                                                   

than superior court).  

                           



             13          Id.  (alteration omitted) (first quoting AS 13.06.065(1)-(2); then quoting  

                                                                                                                                                    

AS 13.060(1), (5)).  

                             



             14          Id. at 1006 (quoting Briggs v. Estate of Briggs, 500 P.2d 550, 554 (Alaska  

                                                                                                                                                     

 1972)).  



             15          AS 13.06.065(1).  

                                 



                                                                              -10-	                                                                      7175
  


----------------------- Page 11-----------------------

                                                             Alaska Statute 13.12.114(a) also provides that "for purposes of intestate                                                                                                                                                                                                                        



 succession by, through, or from a person, an individual is the child of the individual's                                                                                                                                                                                                                                                     



 natural parents, regardless of their marital status, and the parent and child relationship   



 may be established as indicated under AS 25.20.050." In relevant part AS 25.20.050(a)                                                                                                                                                                                                                                                     



 provides:   "A child born out of wedlock is legitimated and considered the heir of the                                                                                                                                                                                                                                                                                               



 putative parent when . . . the putative parent is determined by a superior court without  



jury or by another tribunal, upon sufficient evidence, to be a parent of the child." Alaska                                                                                                                                                                                                                                                                          



  Statute 13.12.114(d) further provides that "[t]o the extent there is a conflict between this                                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                                16   It is clear AS 13.12.114  

 section and . . . AS 25.20.050 . . . , [AS 13.12.114] controls."                                                                                                                                                                                                                                                                                      



 contemplates that the probate court may enter a judgment regarding the parent and child  

                                                                                                                                                                                                                                                                                                                                                                              



 relationship.  



                               16                            We note that AS 13.12.114 replaced former AS 13.11.045, which stated in                                                                                                                                                                                                                                                        



 relevant part:   



                                                             If,   for   purposes   of   intestate   succession,   a   relationship   of  

                                                             parent and child must be established to determine succession                                                                                                                                                                

                                                             by, through, or from a person,                                                                   



                                                                                           . . . .  



                                                              . . . . [A] person born out of wedlock is a child of the mother;                                                                                                                                                                        

                                                             that person is also a child of the father, if:                                                                                                                                  



                                                                                           . . . .  



                                                              [T]he paternity is established by an adjudication before the                                                                                                                                                                                                

                                                             death of the father or is established thereafter by clear and                                                                                                                                                                                              

                                                             convincing proof . . . .                                                             



 Former AS 13.11.045 (1972),                                                                                                         repealed by                                           An Act Relating to the UniformProbate Code,                                                                                                                                     

 ch. 75,  18, SLA 1996.                                                                                      The former statute was based on 1969 Uniform Probate Code                                                                                                                                                                                                      

   2-109.                                Compare  former AS 13.11.045 (1972),                                                                                                                                                    with  UNIF . P                                              ROBATE   CODE    2-109   

 (1969).   



                                                                                                                                                                                          -11-                                                                                                                                                                                 7175
  


----------------------- Page 12-----------------------

                           Alaska Statute 13.12.114 is based on a Uniform Probate Code provision                                                           



intended to provide that an illegitimate child be treated as a child of the father when                                                                            

parentage is sufficiently established under the Uniform Parentage Act:                                                                        17  



                                                                                                                            

                                        If, for purposes of intestate succession, a relationship  

                                                                                             

                           of  parent  and  child  must  be  established  to  determine  

                                                                                                

                           succession by, through, or from a person,  



                                               

                                         . . . .  



                                                                                                                                              

                                         . . . a person is the child of its parents regardless of the  

                                                                                                                                        

                           marital  status  of  its  parents  and  the  parent  and  child  

                                                                                                                                 

                           relationship maybeestablishedunderthe[UniformParentage  

                           Act].[18]  



It is evident that both the current and former probate statutes addressing paternity were  

                                                                                                                                                                     



adopted   from   Uniform   Probate   Code   provisions   contemplating   that   paternity  

                                                                                                                                                          



determinations could be made after the putative father's death. But Alaska did not adopt  

                                                                                                                                                                    

the Uniform Parentage Act19  - which provides that "[a] proceeding to adjudicate the  

                                                                                                                                                                        



parentage of a child having no presumed, acknowledged, or adjudicated father may be  

                                                                                                                                                                          

commenced at any time"20  - and when AS 13.12.114 was created from the Uniform  

                                                                                                                                                             



Probate Code language it instead contained the reference to AS 25.20.050.  Although  

                                                                                                                                                           



Willard argues that there can be no paternity determination because Seward is deceased  

                                                                                                                                                             



and  AS  25.20.050  requires  a  living  defendant  to  establish  paternity,  nothing  in  

                                                                                                                                                                         



              17           See  UNIF . P           ROBATE   CODE    2-109 & cmt. (amended 2010); 1 A                                                         M. L     AW  



INST .-ABA, U                 NIF .P     ROBATE  CODE  PRACTICE  MANUAL  67-68 (Richard V. Wellman ed.,  

               

                                                        ELLMAN).  

2d ed. 1977) (hereinafter W                                                   



              18           UNIF . P       ROBATE  CODE    2-109 (1973) (alteration in original).                                  



              19           See Rubright v. Arnold, 973 P.2d 580, 583 n.1 (Alaska 1999) (noting  

                                                                                                                                                               

Uniform Parentage Act "has not been adopted in Alaska").  

                                                                                                    



             20            UNIF . P       ARENTAGE  ACT    606 (amended 2002).                              



                                                                                   -12-                                                                             7175
  


----------------------- Page 13-----------------------

 AS 25.20.050 compels the conclusion that paternity determinations may be made only                                                                                                              



 against living persons.  The statute simply states that "[a] child born out of wedlock is                                                                                        



 legitimated and considered the heir of the putative parent when . . . the putative parent                                                             



 is determined by a superior court without jury . . . upon sufficient evidence, to be a parent                                                                                              

 of the child."                21  



                                Given that: (1) when acting as a probate court the superior court has broad  

                                                                                                                                                                                               



 subject matter jurisdiction relating to decedents' estates, including matters ancillary to  

                   



 the estate proceedings; (2) probate courts are expressly empowered to determine the  

                                                                                                                                                                                                    



 "heirs   and   successors   of   decedents";   and   (3)   AS   13.12.114   invites   paternity  

                                                                                                                                                                                     



 determinations during estate proceedings in the manner set forth in AS 25.20.050(a), it  

                                                                                                                                                                                                         



was  error  to  adopt  the  probate  master's  recommendations  to  deny  Vincent's  and  

                                                                                                                                                                                                  



 Gaylene's paternity-relatedmotions to theextent thosedenialswerebased on thespecific  

                                                                                                                                                                                          



 ground that a paternity determination cannot be made during estate proceedings.  

                                                                                                                                                                                               



                B.	             Because The Request For An AS 13.12.114 Paternity Determination  

                                                                                                                                                                       

                                Was  For  Declaratory  Judgment  With  Underlying  Legal  Claims,  

                                                                                                                                                                                       

                                Laches Was Not An Available Defense.22  

                                                                                                             



                                As stated above AS 13.12.114 contemplates that the probate court may  

                                                                                                                                                                                                 



 enter judgment regarding the parent and child relationship. This is a form of declaratory  

                                                                                                                                                                                  

judgment. 23                     Although  courts  have  the  authority  to  declare rights  without  granting  

                                                                                                                                                                                       



                21	             AS 25.20.050(a)(4).   



                22              Whether laches applies to a claim before the court                                                                             is a legal question       



                                                                                                                                                     

reviewed de novo.  Burke v. Maka, 296 P.3d 976, 979 (Alaska 2013).  



                23              AS 22.10.020(g), Alaska's Declaratory Judgment Act, provides in part:  

                                                                                                                                                                                              



                                In case of an actual controversy . . . the superior court . . .  

                                                                                                                                                                        

                                may declare the rights and legal relations of an interested  

                                                                                                                                                     

                                party seeking the declaration, whether or not further relief is  

                                                                                                                                                                         

                                                                                                                                                                            (continued...)  



                                                                                                 -13-	                                                                                          7175
  


----------------------- Page 14-----------------------

 separate legal or equitable remedies, when deciding whether a request for declaratory                                                    



judgment and any associated relief is time-barred, courts must look to the nature of the                                                                 

                                                                                                                              24    If the relief is  

relief to determine whether laches or a statute of limitations applies.                                                                                    

                                                                                                                                         25   Here the  

 equitable, laches applies; if the relief is legal, a statute of limitations applies.                                                                    

                                                                                                                            



request for declaratory judgment was associated with Gaylene's creditor claim and with  

                                                                                                                                                      



Vincent's assertion of statutory property rights, both legal in nature.  Nothing about the  

                                                                                                                                                         



request for declaratory judgment and associated relief was equitable in nature.  

                                                                                                                                   



                         Courts have no inherent power to decide whether it would be equitable to  

                                                                                                                                                           

 adjudge someone a father.26   And we have long held that actions to collect child support  

                                                                                                                                                 

 are not equitable, but rather are legal in nature.27   Although the superior court may apply  

                                                                                                                                                    

 equitable principles when acting under its probate jurisdiction,28 that does not include the  

                                                                                                                                                         



             23	         (...continued)
  



                                                                                                                            

                         or could be sought. . . . Further necessary or proper relief
  

                                                                                                                        

                         based on a declaratory judgment or decree may be granted
  

                                                                                                                            

                         .  .  .  against  an  adverse  party  whose  rights  have  been
  

                                                           

                         determined by the judgment.
  



             24	        Laverty v. Alaska R.R. Corp., 13 P.3d 725, 729-30 (Alaska 2000).  

                                                                                                                                     



             25	        Id. at 730.  

                                    



             26          See Dep't of Soc. Servs. v. Dinkins, 442 N.Y.S.2d 887, 888 (N.Y. Fam.  

                                                                                                                                                     

 1981) (stating that because paternity determination "is a creature of statute and clearly  

                                                                                                                             

 an action at law . . . [that] cannot be affected by laches"); cf. T.P.D. v. A.C.D., 981 P.2d  

                                                                                                                                                      

 116,  119-22  (Alaska  1999)  (refusing  to  apply  laches  to  bar  a  man  from  legally  

                                                                                                                                                 

 disestablishing paternity but acknowledging that equitable estoppel may apply to such  

                                                                                                                                                      

 an action).  

       



             27          State, Dep't of Revenue, Child Support Enf't Div. ex rel. Valdez v. Valdez,  

                                                                                                                                                 

 941 P.2d 144, 152 (Alaska 1997).  

                                                   



             28          See  AS  13.06.015  ("Unless  displaced  by  the  particular  provisions  of  

                                                                                                                                                         

                                                                                                                                     (continued...)  



                                                                           -14-	                                                                    7175
  


----------------------- Page 15-----------------------

                                                                                 29  

power to employ laches to bar a legal claim.                                          Laches is inapplicable in this context, and                            



it was error to apply it to preclude Vincent and Gaylene from pursuing their requests for                                                                      



declaratory and related legal relief in the probate proceedings.                              



             C.	         Gaylene's Creditor Claim Is Unquestionably Barred By The Statute                                                            

                                                        30  

                         Of Limitations,                                                                                                                        

                                                             And The Superior Court's Ruling That Gaylene Is  

                                                                                                                                                              

                         Not An Interested Person In The Estate Proceedings Is Affirmed On  

                                                                             31  

                                                            

                         This Alternative Ground. 



                                                                                                                                                      

                         Gayleneasserts sheis aninterestedpersonintheestateproceedings because  



                              32  

                                                                                                                                                            

she is a creditor;                she seeks to establish that Vincent is Seward's son in connection with  



                                                                                                                                                             

her legal claim for child support allegedly due her from 1982 through 2000; and she  



             28          (...continued)  



                                                                                                                                                         

[Alaska's Uniform Probate Code,] AS 13.06 - AS 13.36, the principles of law and equity  

                                                                                                                                   

supplement those provisions."); see also Pestrikoff v. Hoff, 278 P.3d 281, 286 (Alaska  

                                                                                                                                                               

2012)  (noting  that  AS  13.06.015  "permits  a  court  to  apply  equitable  principles  to  

                                                                                                                                                         

supplement the probate code"); Riddell v. Edwards, 76 P.3d 847, 858 (Alaska 2003)  

                                                                                                                                                           

(recognizing  that  "in  deciding  claims  arising  under  the  probate  code,  a  court  may  

                                                                                                                                                

exercise its equitable powers unless explicitly forbidden to do so"); id. at 855 ("Alaska's  

                                                                                                                                                    

Uniform Probate Code generally gives trial courts broad latitude to supplement statutory  

                                                                                                      

provisions with equitable principles . . . ." (citing AS 13.06.015)).  



             29          Gudenau v. Bang, 781 P.2d 1357, 1363 (Alaska 1989) ("Laches is an  

                                                                                                                                                               

equitable defense inapplicable to actions at law." (citing Kodiak Elec. Ass'n v. DeLaval  

                                                                                                                                                    

Turbine, Inc., 694 P.2d 150, 157 (Alaska 1984))).  

                                                                                



             30          "We exercise our independent judgment when interpreting and applying  

                                                                                                                                                   

statutes of limitations."  Heustess v. Kelley-Heustess, 259 P.3d 462, 468 (Alaska 2011)  

                                                                                                                                                         

(quoting Koss v. Koss, 981 P.2d 106, 106-07 (Alaska 1999)).  

                                                                                                       



             31          "We may affirm a judgment on any grounds that the record supports, even  

                                                                                                                                                           

if not relied on by the superior court."  Snyder v. Am. Legion Spenard Post No. 28, 119  

                                                                                                                                                             

P.3d 996, 1001 (Alaska 2005).  

                                               



             32          Cf. AS 13.06.050(24) (defining interested person in decedent's estate to  

                                                                                                                                                                

include decedent's creditors).  

                                     



                                                                              -15-	                                                                       7175
  


----------------------- Page 16-----------------------

seeks recovery from the estate based on this alleged pre-death obligation.                                                                The ten-year   



                                                                         33  

statute of limitations of AS 09.10.100,                                                                                                           

                                                                             subject to tolling during the child's minority  

                                       34 applies to claims for past child support.35  Assuming Vincent is  

under AS 09.10.140, 



                                                                                                                                                        

Seward's son and Gaylene has standing to assert  her claim for long-past-due child  

               36  and given Gaylene's assertion that she knew Seward was Vincent's father  

support,                                                                                                                                               



when Vincent was born, the statute of limitations on Gaylene's claim expired years  

                                                                                                                                                        



before Seward died. For this reason Willard's disallowance of Gaylene's creditor claim  

                                                                                                                                                        



on the statute of limitations ground should have been sustained by the superior court, and  

                                                                                                                                                            



we so hold.  And because Gaylene's only basis for asserting that she is an interested  

                                                                                                                                                



person in the estate proceedings is her creditor claim, the superior court's conclusion that  

                                                                                                                                                           



she is not an interested person in the proceedings is affirmed on this ground.  

                                                                                                                                 



             33          "An action for a cause not otherwise provided for may be commenced                                                



within 10 years after the cause of action has accrued."                                                AS 09.10.100.   



             34          AS 09.10.140(a) provides:  

                                                          



                         [I]f a person entitled to bring an action mentioned in this  

                                                                                                                                  

                         chapter is at the time the cause of action accrues . . . under the  

                                                                                                                                    

                         age of majority, . . . the time [during which the person is  

                                                                                                                       

                         under the age of majority] is not a part of the time limit for  

                                                                                                                                    

                         the commencement of the action. . . . [T]he period within  

                                                                                                                             

                         which the action may be brought is not extended in any case  

                                                                                                                                 

                         longer than two years after the disability ceases.  

                                                                                                                     



             35          Heustess, 259 P.3d at 468-69; cf. State, Dep't of Revenue, Child Support  

                                                                                                                                        

Enf't Div. ex rel. Valdez v. Valdez, 941 P.2d 144, 152 (Alaska 1997) (concluding that  

                                                                                                                                                           

laches could not be applied to claim for child support arrearage).  

                                                                                                      



             36          See Heustess, 259 P.3d at 468-69 & n.16 (holding that claim belongs to  

                                                                                                                                                              

child but allowing mother to assert it on child's behalf).  

                                                                                          



                                                                             -16-                                                                       7175
  


----------------------- Page 17-----------------------

                D.	             If Vincent Is Seward's Son, He Is An Interested Person In The Estate                                                                                         

                                Proceedings.  



                                Alaska Statute 13.06.050(24) expressly includes a decedent's children as                                                                                                



                                                                                                      37  

persons interested in the decedent's estate.                                                                                                                                                         

                                                                                                             This makes abundant sense, as there are  



                                                                                                                                                                                    

several ways in which a decedent's child may be entitled to a portion of the decedent's  



                                                                                                                                                                                                

estate.  For example a child is an intestate heir absent a valid will or to the extent a valid  



                                                                                                                                                  38  

                                                                                                                                                                                                     

will does not dispose of the entirety of the decedent's estate.                                                                                          A child born after the  



                                                                                                                                                                                                

execution of a will may be a pretermitted heir entitled to a share of the decedent's estate  



                                                     39  

                                                                                                                                                                                   

passing under the will.                                    And a child may have the right to certain statutory allowances  



                                                                                                                                                                                                  

from the decedent's estate notwithstanding the existence of a valid will otherwise fully  



                                                                                40  

                                                                                                                                                                                                  

disposing of the decedent's estate.                                                  For these reasons notice of estate proceedings must  



                                                                       41  

                                                                                                                                                                                                        

be given to a decedent's child                                              - notice allows a decedent's child the opportunity to  



                                                                                                                          

protect statutory rights and contest the validity of a will.  



                37              AS 13.06.050(24) (" '[I]nterested person' includes [a decedent's] heirs,                                                                                        



devisees, [and] children . . . .");                                              see also              AS 13.06.050(5) (" '[C]hild' includes an                                                       

individual entitled to take as a child under AS 13.06 -                                                                      AS 13.36 by intestate succession                       

from the parent whose relationship is involved, and excludes a person who is only a                                                                                                                       

stepchild, a foster child, a grandchild, or a more remote descendant.").                                                             



                38              See AS  13.12.101(a); AS  13.12.103(1).  

                                                                                             



                39              See AS  13.12.302.  

                                                   



                40              See  AS  13.12.401-.405 (establishing homestead,  exempt property,  and  

                                                                                                                                                                                                    

family allowances for protection of surviving spouses and children).  

                                                                                                                                           



                41              See AS 13.16.105(b)(requiringthat after informal probate is initiated notice  

                                                                                                                                                                                               

be given to decedent's "heirs"); AS 13.16.150(a) (requiring, at commencement of formal  

                                                                                                                                                                                              

proceedings, notice to "children" of decedent); see also AS 13.06.110(a) (providing that  

                                                                                                                                                                                                    

required probate notices be given to any "interested person").  

                                                                                                                            



                                                                                                  -17-	                                                                                          7175
  


----------------------- Page 18-----------------------

                                                 With this in mind we first address the merits of the parties' substantive                                                                                                                                                          



arguments whether, if Vincent is Seward's son, Vincent might have a claim against the                                                                                                                                                                                                                               



estate.   Vincent argues on appeal that the 2008 will is invalid and he may be entitled to                                                                                                                                                                                                                             



inherit under an alleged 2011 will; that even if the 2008 will is valid he is entitled to                                                                                                                                                                                                                              



recover under the will as a pretermitted heir; and that he has the legal right to statutory                                                                                                                                                                                                   



allowances notwithstanding the existence of a will.                                                                                                                                         Willard asserts that the 2008 will is                                                                                        



valid and properly being probated; that Vincent cannot be a pretermitted heir under the                                                                                                                                                                                                                            



will; and that Vincent is barred from seeking recovery under other language of the will.                                                                                                                                                                                                                                           



Willard does not address Vincent's claim to statutory allowances.                                                                                                                                      



                                                  1.	                     The   errors   on   the   application   and   order   for   admission   of  

                                                                          Seward's 2008 will to informal probate are immaterial - the                                                                                                                                                                             

                                                                          will accepted for probate is the 2008 will.                                                                                                     



                                                 There can be no dispute that Seward executed a will in 2008 and that this                                                                                                                                                                                       



will was presented for probate.                                                                                     Willard later stated that she made a date mistake in her                                                                                                                                       



paperwork   opening   the   estate,   and   Vincent   offers  no   evidence   to   refute   Willard's  



explanation.     Vincent   cannot   seize   solely   on   a   scrivener's   error   in   accompanying  



paperwork to invalidate an otherwise valid will facially complying with the requisite                                                                                                                                                                                                         



                                                                             42  

statutory formalities.                                                              



                                                                                                                                                                                                                                                                                                           

                                                 We have recognized that honest mistakes are sometimes made in court  



                                                                                                                                                                                                                                                                                                                    

documents and that courts should be free to correct them.  Alaska Civil Rule 60(a), for  



                                                                                                                                                                                                                                                                                                       

example, provides:  "Clerical mistakes in judgments, orders, or other parts of the record  



and errors therein arising from oversight or omission may be corrected by the court at  



                                                                                                                                                                                                                                                                                                               

any time of its own initiative or on the motion of any party and after such notice, if any,  



                         42  

                                                                                                                                                                                                                                                                                                                   

                                                 See AS 13.12.502(a) (stating that a will must be in writing, signed by the  

                                                                                                                                                                             

testator, and signed by at least two witnesses).  



                                                                                                                                                        -18-	                                                                                                                                                                7175  


----------------------- Page 19-----------------------

                                                                                43  

 as the court orders."                                                                 Although Willard should have requested that the superior court                                                                                                                                                                        



 correct the date mistake in the order accepting the 2008 will for probate, implicit in its                                                                                                                                                                                                                                             



 denials                            of              Vincent's                                     various                              motions                                regarding                                     the                mistake                               is            the                 court's  



 acknowledgment that the mistake was simply a mistake.                                                                                                                                                                                Other than the noted date                                                                 



 discrepancy, no evidence was presented suggesting the actual existence of a 2011 will                                 



 -  the paperwork error alone does not affect the acceptance of Seward's 2008 will for                                                                                                                                                                                                        



 probate.     We   therefore   affirm the                                                                                                  superior   court's   acceptance   of the                                                                                                       2008   will   for  



 probate, its appointment of Willard as the personal representative, and its rejection of                                                                                                                                                                                                                                                

 Vincent's arguments about an alleged 2011 will.                                                                                                                                               44  



                                                     2.	                       Vincent is not a pretermitted heir under the 2008 will and has  

                                                                                                                                                                                                                                                                                                                                   

                                                                               no claim under the will.  

                                                                                                                                                               



                                                     The superior court ruled that Vincent is not a pretermitted heir under the  

                                                                                                                                                                                                                                                                                                                                      



 2008  will.                                       Vincent  argues  that  he  is  a  pretermitted  heir  because  Seward  did  not  

                                                                                                                                                                                                                                                                                                                                   



 intentionally disinherit him but rather "inadvertently forgot[]" to include Vincent in his  

                                                                                                                                                                                                                                                                                                                                       



 will.  

                    



                           43                        See also Jensen v. Froissart                                                                                  , 982 P.2d 263, 268 (Alaska 1999) ("As long                                   



 as the intentions of the parties are clearly defined and all the court need do is employ the                                                                                                                                                                                                                                         

judicial eraser to obliterate a mechanical or mathematical mistake, the [Rule 60(a)]                                                                                                                                                                                                                                    

 modification will be allowed." (quoting                                                                                                                   In re W. Tex. Mktg. Corp.                                                                           , 12 F.3d 497, 504-05                                  

 (5th Cir. 1994)));                                                 Allen v. Bussell                                             , 558 P.2d 496, 501 (Alaska 1976) (" '[C]ourts possess                                                                                                                              

 an ample remedial power to correct clerical mistakes in judgments, order[s], or other                                                                                                                                                                                                                                       

 parts of the record . . . . In exercising the power to correct clerical mistakes, courts                                                                                                                                                                                                                                

 should, however, confine the power to correction of mistakes that may legitimately be                                                                                                                                                             

 said to be clerical, and exercise it only on a clear showing of mistake.' " (quoting 6A                                                                                                                                                                                                                                             

                  OORE, F                        EDERAL  PRACTICE  60.06(3), at 4061-63 (1974))).                                                                                                            

 J. M 



                           44                        Because the merits of Vincent's brief argument that the 2008 will is invalid                                                                                                                                                                                      



 due   to   Seward's   testamentary   incapacity   or   undue   influence   were   never  actually  

 considered by the superior court, we assume but express no opinion about the validity  

                                                                                                                                                                                                                                            

 of the 2008 will.                             



                                                                                                                                                                  -19-	                                                                                                                                                        7175
  


----------------------- Page 20-----------------------

                         To qualify as a pretermitted heir eligible to "a share in the [testator's]                                          



estate," the testator's omitted child must be "born or adopted                                                    after  the execution of the               



          45  

                                                                                                                                                           

will."          Analyzing a former version of the pretermitted heir statute, we explained that  



                                                                                                                                                

"[t]he  plain  language  of  the  statute  indicates  that  [it]  applies  only  to  the  testator's  



                                                                                                                  46  

                                                                                                                                                           

children . . . born or adopted after the execution of the will."                                                       We explained that this  



                                                                                                                                                            

statute's  purpose  was  "not  to  compel  parents  to  make  testamentary  provision  for  



                                                                                                                                     47  

                                                                                                                                                       

children, but to prevent the consequences of forgetfulness or oversight."                                                                 It was meant  



                                                                                                                                             48  

                                                                                                                                                   

to protect a testator's children "against an unintentional omission in a will."                                                                   Vincent  



                                                                                                                                                          

was born in 1982, but Seward executed his will in 2008.  Because Vincent was not born  



                                                                                                                                           

or adopted after the execution of Seward's will, he cannot benefit from the presumption  



                                                                                                                                                        

that he was omitted unintentionally. Thus he cannot qualify as a pretermitted heir under  



                                                                                                                                                              

the 2008 will.  The superior court's ruling on this issue was correct, and we affirm it;  



                                                                       

Vincent has no other claim under the will.  



                                                                                                                                               

                         3.	         Vincent  may  be  entitled  to  the  statutory  exempt  property  

                                     allowance.  



                                                                                                                                                         

                         Vincent argues that if he can prove he is Seward's son, he then would have  



                                                                                                                  

a "legal right" to obtain "his Homestead Allowance, Family Allowance[,] and Exempt  



            45	          AS 13.12.302(a) (emphasis added).                    



            46           Nicholson  v.  Sorensen,  517  P.2d  766,  768  (Alaska  1973)  (construing  

                                                                                                                                            

Alaska's pretermission statute, former AS 13.11.115(a) (1973) and noting that when "a  

                                                                                                                                                              

testator fails to provide in his will for any of his children born or adopted after the  

                                                                                                                                                            

execution of his will, the omitted child receives a share in the estate equal in value to that  

                                                                                                                                                           

which he would have received if the testator had died intestate").  

                                                                                                      



            47           Id. at 770 (quoting Gerrish v. Gerrish, 8 Or. 351, 353-54 (Or. 1880)); cf.  

                                                                                                                                                              

AS 13.12.101(b) (providing decedent by will may "expressly exclude or limit" intestate  

                                                                                                                                                   

succession rights of heirs).  

                                       



            48           Nicholson, 517 P.2d at 772.  

                                                                     



                                                                             -20-	                                                                      7175
  


----------------------- Page 21-----------------------

                                                                                 49  

Property" from Seward's estate.                                                          Alaska's statutory                              exemptions are derived                                       from  



 2-401 to 2-404 of the Uniform Probate Code, which provide surviving spouses and                                                                                                                        



certain children specific rights "in preference over unsecured creditors of the estate and                                                                                                                

persons to whom the estate may be devised by will."                                                                             50  



                                Althoughthehomesteadallowanceoriginatedinstatutes intending to secure  

                                                                                                                                                                                                    



to the surviving family part of the estate in the form of a residence, the Uniform Probate  

                                                                                                                                                                                                

Code  retains  the  protection  in  the  form  of  a  dollar  allowance.51                                                                                              Alaska's  version  

                                                                                                                                                                                                



provides  a  $27,000  allowance  to  a  decedent's  surviving  spouse,  or,  if  there  is  no  

                                                                                                                                                                                                           



surviving spouse, to each minor and other dependent child of the decedent in pro rata  

                                                                                                                                                                                                          

shares.52  This allowance "is exempt from and has priority over all claims against the  

                                                                                                                                                                                                           



estate," and is authorized in addition to any share passing to the surviving spouse or  

                                                                                                                                                                                                             



minor or dependent child through intestate succession or "by the will of the decedent,  

                                                                                                                                                                                           

unless otherwise provided."53  Seward had no surviving spouse, but even if Vincent is  



Seward's son, he was not a minor or other dependent child of Seward at Seward's death  

                                                                                                                                                                                                      



and cannot be entitled to a homestead allowance from Seward's estate.  

                                                                                                                                                             



                49              See   AS 13.12.401-.405 (establishing homestead, exempt property, and                                                                                                    



family allowances for protection of surviving spouses and certain children).                                                                                     



                50              See UNIF . P                 ROBATE  CODE  2-4 cmt.;                                        see also            WELLMAN,  supra note 17,  



at 110-14.   



                51              WELLMAN, supra note 17, at 111.  

                                                                                                        



                52              AS 13.12.402; see also AS 13.12.405(a) (setting out source for satisfaction  

                                                                                                                                                                                        

of the allowance, including payment of cash).  

                                                                                                 



                53              AS  13.12.402;  see  also  WELLMAN,  supra  note  17,  at  112  (noting  the  

                                                                                                                                                                                                          

allowance exists "except where the will specifically provides otherwise").  

                                                                                                                                                       



                                                                                                    -21-                                                                                              7175
  


----------------------- Page 22-----------------------

                       The family allowance is generally intended to provide a period of financial                                    



                                                                                                                 54  

adjustment for the decedent's family, depending upon its needs.                                                                        

                                                                                                                      Alaska's version  



                                                                                                                                   

provides that the decedent's surviving spouse, dependent minors, and other dependent  



                                                                                                                                            

children "are entitled to a reasonable allowance in money out of the estate for their  

                                                                                                      55    The allowance may be  

                                                                                                                                                

maintenance during the period of [estate] administration." 



limited to one year if the estate is otherwise inadequate to pay allowed claims against the  

                                                                                                                                               

estate,56   and is subject to objection by interested persons and determination by the  

                                                                                                                                               

probate court,57  taking into account the family's previous standard of living and existing  

                                                                                                                                       

resources available to meet current living expenses.58                                       The family allowance is exempt  

                                                                                                                                        

from and takes priority over all other claims but the homestead allowance,59  and like the  

                                                                                                                                               



homestead allowance "is not chargeable" against benefits from the decedent's will,  

                                                                                                                                            

                                                                                                     60    Again,  Seward  had  no  

unless  otherwise  provided,  or  from  intestate  succession.                                                                                 

                                                                                 



surviving spouse, but even if Vincent is Seward's son, he was not a minor or other  

                                                                                                                                           



           54          WELLMAN,  supra  note   17,  at   110-11.  



           55          AS   13.12.404(a).  



           56          Id. ;   see   also   AS    13.12.405(a)    (allowing   personal   representative   to  



"determine   the   family   allowance   in   a   lump   sum   not   exceeding $18,000   or   periodic  

installments  not  exceeding  $1,500  per  month  for  one  year").   



           57          AS 13.12.405(a); see In re Estate of Gregory, 487 P.2d 59, 61-63 (Alaska  

                                                                                                                                       

 1971).  



           58          WELLMAN, supra note 17, at 110-11.  

                                                                          



           59          AS  13.12.404(a).  

                              



           60          AS  13.12.404(b); WELLMAN, supra note  17, at 111 (stating allowance is  

                                                                                                                                                 

"ordinarily not charged against any provision in the will of the decedent, but the will may  

                                                                                                                                             

expressly provide otherwise").  

                                                      



                                                                      -22-                                                                 7175
  


----------------------- Page 23-----------------------

dependent child of Seward at Seward's death and therefore cannot be entitled to a family                                                                                           



allowance from Seward's estate.                             



                              The exempt property allowance, like the original homestead allowance,                                                                        



relates to the surviving family's interest in certain property - Alaska's version provides                                                                                      



that the decedent's surviving spouse, or if there is no surviving spouse, "the decedent's                                                                                  



children,"   are   entitled   to   items   of   "household   furniture,   automobiles,   furnishings,  

                                                                        61 in value not exceeding $10,000. Withsomelimitation  

appliances, and                    personal effects"                                                                                                                          



other assets of the estate may be used to make up a deficiency in the listed assets, and the  

                                                                                                                                                                                             

right to this allowance has priority over "all claims against the estate."62 As with the other  

                                                                                                                                                                                        



allowances, this allowance is in  addition to  the benefits given  under  a will,  unless  

                                                                                                                                                                                    

otherwise provided, or to those of intestate succession.63  

                                                                                                  



                              Unlike the other two allowances,  which in the absence of a surviving  

                                                                                                                                                                             



spouse are limited to minor and other dependent children (homestead allowance) or to  

                                                                                                                                                                                               



dependent minor and other dependent children (family allowance), the exempt property  

                                                                                                                                                                                



                                                                                                                                                                                               64  

allowance is directed to "children," which includes adult, non-dependent children.                                                                                                                   

                                                                                                                                       



               61             AS   13.12.403.  



               62             Id.  



               63             Id. ;  WELLMAN,  supra  note   17,  at 113 ("Of  course,  the  testator may  force  



the   spouse   or   children   to   elect to take  property   under   the   will   in   lieu   of   the   exempt  

property  by  an  express  provision  in  the  will,  e.g.,  'this  provision  for  my  wife  is  expressly  

in   lieu   of   her   right  to   homestead   allowance   and   exempt   property,   and   any   family  

allowance  to  my  wife  shall  be  charged  against  this  provision  under  my  will.'  ").  



               64             AS  13.12.405 (noting "children who are adults" may select property for  

                                                                                                                                                                                            

exempt property allowance); UNIF .  PROBATE  CODE    2-403, cmt. (am.  2010) ("Unlike  

                                       

the   exempt   amount described   in   Sections   2-402   [Homestead   Allowance]   and   2-404  

 [Family  Allowance],  the  exempt  amount  described  in  this  section  [Exempt  Property]  is  

available  in a  case  in which the decedent left no spouse but left only adult  children.");  

                                                                                                                                                                     (continued...)  



                                                                                             -23-                                                                                       7175
  


----------------------- Page 24-----------------------

Therefore absent a valid will provision expressly charging the allowance against other                  



                                                        65  

property devised under the will,                                                                                                       

                                                            Vincent is entitled to the $10,000 exempt property  



                                                                                                                                     

allowance if he is Seward's son; it is undisputed that no such will provision exists.  



                                                                                                                                  

                       As noted earlier Willard has not addressed Vincent's claim to statutory  



                                                                                                                                                   

allowances.  She does, however, make a short argument that the "no-contest" clause in  



                                                                                                                                             

Seward's  will  applies  to  Vincent's  efforts  to  share  in  Seward's  estate.                                                    But  even  



                                                                                                                                     

assuming the no-contest clause is enforceable and might be applicable to Vincent's  

                                                                           66   it would have no bearing on Vincent's  

                                                                                                                                     

challenge to the validity of the 2008 will, 



separate right to the exempt property allowance. Alaska's statutory allowances must be  

                                                                                                                                                  



satisfied before estate expenses, allowed creditor claims, and distributions under a will  

                                                                                                                                                

are satisfied.67           A will may provide that statutory allowances be charged against will  

                                                                                                                                               



distributions, and not be in addition to will distributions, but we are unaware of any  

                                                                                                                                                



            64         (...continued)  



                   ELLMAN,  supra note 17, at 113 (noting that when there is no spouse, "adult   

see also W 

children" may partake in exempt property allowance).                       



            65         See AS 13.12.402.  

                                      



            66         Cf.  AS  13.12.517  ("A  provision  in  a  will  purporting  to  penalize  an  

                                                                                                                                                 

interested person for contesting the will or instituting other proceedings relating to the  

                                                                                                                                                 

estate is unenforceable if probable cause exists for instituting proceedings.").  

                                                                                                            



            67         See In re Hutchinson's Estate, 577 P.2d 1074, 1074-77 (Alaska 1978)  

                                                                                                                                            

(construing predecessor family allowance statute and rejecting contention that family  

                                                                                                                                           

allowance did not take priority over estate expenses, certain prioritized claims, and "all  

                                                                                                                                                

other  claims"  against  the  estate);  see  also  Richardson  v.  Estate  of  Berthelot,  No.  

                                                                                                                                               

S-13696, 2013 WL 203271, at *10 (Alaska Jan. 16, 2013) (affirming order granting  

                                                                                                                                       

surviving spouse her three statutory allowances, "which have priority over all other  

                                                                                                                              

claims" against the estate).  

                                   



                                                                       -24-                                                                  7175
  


----------------------- Page 25-----------------------

authority suggesting that a testator otherwise can expressly or impliedly eliminate a                                                                                              

surviving spouse's or child's rights to statutory allowances.                                                                68  



                                                                                                                                                            

              E.	           We Do Not Decide At This Time Whether A Statute Of Limitations  

                                                                                                                                                         

                            Bars Vincent From Establishing Paternity In The Estate Proceedings.  



                                                                                                                                                     

                            Relying  on  Grober  v.  State,  Department  of  Revenue,  Child  Support  



                                                 69  

                                                                                                                                                                                

Enforcement  Division,                                Willard  contends  that  AS  09.10.100's  ten-year  statute  of  



                                                                                              70  

                                                                                                                                                                              

limitations  applies  to  all  paternity  actions.                                                    She  notes  that  AS  09.10.140(a),  the  



                                                                                                                                                                                

disability tolling  statute,  provides that "the period  within  which the action may  be  



                                                                                                                                                                                       

brought is not extended in any case longer than two years after the disability ceases."  



                                                                                                                                                                  

Willard asserts that (1) given the tolling statute, Vincent was required to bring a paternity  



                                                                                                                                                                              

action against Seward by the time he was age 20, and (2) even if Vincent had the full ten- 



                                                                                                                                                                                   

year limitation period after he reached the age of majority, he was required to bring a  



                                                                                              

paternity action by the time he was age 28.  



                                                                                                                                                                                 

                            Grober involved the pursuit of an AS 25.20.050 paternity determination by  

                                                                           71  After noting that AS 25.20.050 does not delimit  

                                                                                                                                                                       

the State in a child support context. 



who may bring a paternity action and that the (unstated) statute of limitations tolls during  

                                                                                                                                                                        



              68            Cf.   In   re   Estate   of   Peterson,   576   N.W.2d   767,   769,   772   (Neb.   1998)  



(holding adult emancipated child was entitled to statutory exempt property allowance                                                                            

despite specific will provision that under no circumstances should any share of estate go                                                                                        

to that child);             Matter of Estate of Dunlap                             , 649 P.2d 1303, 1305-06 (Mont. 1982) (holding                                   

child   specifically   disinherited   in   will   was   entitled   to   statutory   exempt   property  

allowance).   



              69            956 P.2d 1230, 1232 (Alaska 1998).  

                                                                                           



              70            AS 09.10.100 ("An action for a cause not otherwise provided for may be  

                                                                                                                                                               

commenced within 10 years after the cause of action has accrued.").  

                                                                                                                                                 



              71            956 P.2d at 1231.  

                                                      



                                                                                      -25-	                                                                                7175
  


----------------------- Page 26-----------------------

                                       72  

the child's minority,                     we rejected the argument that because those entitled to bring a                                                       



paternity action during the child's minority knew of the child's illegitimacy there was no                                                                    

                                                              73   We quoted an earlier case:  "It can be regarded as  

"disability" necessitating tolling.                                                                                                                           



fundamentally unfair to a minor to saddle the minor with the consequences of [others']  

                                                                                                                                                  

neglect . . . ."74   And we expressly noted that the rule allowing minors to assert their own  

                                                                                                                                                          



actions after reaching the age of majority is designed to protect children, not to create "a  

                                                                                                                                                              

modified version of the discovery rule."75  Because the State's action was initiated during  

                                                                                                                                                      

the child's minority, there was no possible statute of limitations bar to the action.76   Thus  

                                                                                                                                                         



we avoided discussing or deciding two other issues raised on appeal - whether there is  

                                                                                                                                                               



a specific statute of limitations for a paternity action and whether a statute of limitations  

                                                                                                                                              

for a paternity action could survive a constitutional equal protection challenge.77  

                                                                                                                                 



                         Although Willard raised her statute of limitations argument to the superior  

                                                                                                                                                   



court, that court did not address it.  At least the following questions seem relevant, none  

                                                                                                                                                         



of which have been raised or discussed in the briefing for this appeal:  Is there a specific  

                                                                                                                                                    



statute of limitations and accrual date for AS 25.20.050 paternity determinations for all  

                                                                                                                                                             



             72          Id.  at   1232.  



             73          Id.  at   1233  &  n.5.  



             74          Id.  at   1233  (quoting  Hanson  v.  Kake   Tribal   Corp.,  939  P.2d   1320,   1326  



(Alaska   1997)).  



             75          Id.  at   1233  n.5.  



             76          Id.  at   1231,   1232.  



             77          Brief  of  Appellee  at  9-13,  Grober  v.  State,  Dep't  of  Revenue,  Child  Support  



Enf't  Div.,  ex  rel.  Clarence  Willoya,  No.  S-07353,  (Sept.  23,  1996),  1996  WL  34392603  

at   *7-19;  Reply  Brief  of  Appellant  at  5-9,  id.,  (Nov.  4,   1996),   1996 WL  34392604  at  

*4-13.  



                                                                             -26-                                                                       7175
  


----------------------- Page 27-----------------------

                                                                                              78  

purposes, including the determination of heirs?                                                    Or is a paternity determination request                       



simply a declaratory judgment request not necessarily subject to a time bar defense itself,                                                                          

                                                                                                                    79   Is AS 13.12.114(d) subject  

but with any attendant relief subject to a time bar defense?                                                                                                      

                                                                                                                80   Is there a constitutional equal  

to any statute of limitations applicable to AS 25.20.050?                                                                                                            

                                                                                          



protection concern if a statute of limitations is applied in the manner Willard proposes  

                                                                                                                            



to prevent an as-yet-unlegitimized child from being an heir to a parent's estate?  

                                                                                                                                                    



                           We therefore do not at this time decide the statute of limitations question,  

                                                                                                                                                             



and we order supplemental briefing to assist us in resolving the question.  

                                                                                                                                  



              78           See  AS 25.20.050(a) (providing child "is legitimated and considered the                                                                      



heir of the putative parent" after paternity determination).                          



              79           See supra Section B.  This raises the question when a statutory allowance  

                                                                                                                                                           

claim arises. See In re Hutchinson's Estate, 577 P.2d 1074, 1075 (Alaska 1978) (noting  

                                                                                                                                                                 

family allowances seem to be "liabilities of the estate, and they arise at or after the death  

                                                                                                                                                                     

of the decedent"). Other courts have held that an illegitimate child's claim to inheritance  

                                                                                                                                                          

accrues at the time of the parent's death and that a paternity statute of limitations does  

                                                                                                                                          

not apply.  See In re Estate of Rogers, 81 P.3d 1190, 1198 (Haw. 2003); Ellis v. Ellis,  

                                                                                                                                                                     

752 S.W.2d 781, 782-84 (Ky. 1988); In re Estate of Kingsbury, 946 A.2d 389, 394 n.4  

                                                                                                                                                                         

(Me. 2008); In re Estate of Palmer, 658 N.W.2d 197, 199-200 (Minn. 2003); In re  

                                                                                                                                                                           

Nocita, 914 S.W.2d 358, 359 (Mo. 1996); Wingate v. Estate of Ryan, 693 A.2d 457, 463- 

                                                                                                                                                                       

64 (N.J. 1997);  C.L.W. v. M.J., 254 N.W.2d 446, 450 (N.D. 1977); In re Estate of  

                                                                                                                                                                           

 Greenwood, 587 A.2d 749, 752 (Pa. Super. 1991); In re Estate of Chavana, 993 S.W.2d  

                                                                                                                                                                 

311, 317-18 (Tex. App. 1999); Marshall v. Bird, 334 S.E.2d 573, 575 (Va. 1985); Taylor  

                                                                                                                                                                  

v. Hoffman, 544 S.E.2d 387, 395 (W. Va. 2001); In re Estate of Thompson, 661 N.W.2d  

                                                                                                                                                                

869, 880 (Wis. App. 2003).  But see In re Estate of Smith, 685 So.2d 1206, 1208 (Fla.  

                                                                                                                                                           

 1996)  (holding  that  Florida  has  no  separate  statute  of  limitations  for  paternity  

                                                                                                                                                            

determinations in probate proceedings).  

                                                      



              80           See  AS  13.12.114(a)  ("[T]he  parent  and  child  relationship  may  be  

                                                                                                                                                                         

established  as  indicated  under  AS  25.20.050.");  AS  13.12.114(d)  (stating  that  

                                                                                                                                                                      

AS 13.12.114 controls over AS 20.20.050 "[t]o the extent there is a conflict").  

                                                                                                                                          



                                                                                    -27-                                                                             7175
  


----------------------- Page 28-----------------------

V.                              CONCLUSION  



                                                               We AFFIRM the superior court's rulings that: (1) Seward's 2008 will was                                                                                                                                                                                                                                                                



properly admitted to probate and that Willard was properly appointed the personal                                                                                                                                                                                                                                                                                             



representative of the estate; (2) Gaylene                                                                                                                                                               Mock - on the alternative ground of the                                                                                                                                                         



applicable statute of limitations - is not an interested person in the estate proceedings;                                                                                                                                                                                                                                                                 



and (3) Vincent Mock is not a pretermitted heir under Seward's 2008 will or otherwise                                                                                                                                                                                                                                                                                     



entitled to claim under that will.                                                                                                                    We REVERSE the superior court's ruling that Vincent                                                                                                                                                                          



Mock's statutory allowance claimis barred bylaches                                                                                                                                                                                                   and ORDERsupplemental briefing                                                                                                



on   the   question   whether   a   statute   of   limitations   bars   him from seeking                                                                                                                                                                                                                                                                          a   paternity  



determination in the estate proceedings establishing his right to the statutory property                                                                                                                                                                                                                                                                                       



allowance.  



                                                                                                                                                                                                   -28-                                                                                                                                                                                           7175
  

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