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Wingate v. Estate of Ryan

May 16, 1996

JOANNE WINGATE, AND SALVATORE ERIC PIRRI, A MINOR, BY HIS GUARDIAN AND NATURAL MOTHER, JOANNE WINGATE, PLAINTIFFS-RESPONDENTS,
v.
ESTATE OF JOHN J. RYAN AND HELEN THOMAS, ADMINISTRATRIX OF THE ESTATE OF JOHN J. RYAN, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County.

Approved for Publication May 16, 1996.

Before Judges Skillman, P.g. Levy and Eichen. The opinion of the court was delivered by Skillman, J.A.D.

The opinion of the court was delivered by: Skillman

The opinion of the court was delivered by

SKILLMAN, J.A.D.

The issue presented by this appeal is whether N.J.S.A. 9:17-45(b), the section of the Parentage Act, N.J.S.A. 9:17-38 to -59, which requires a paternity claim to be brought within twenty-three years of a child's birth, applies to a paternity claim asserted for the purpose of establishing a right to intestate succession.

The decedent, John J. Ryan, died on the evening of February 6, 1995. The following morning, plaintiff Joanne Wingate, who was then thirty-one years old, filed this paternity action against Ryan's estate. Upon plaintiff's ex parte application on telephone notice to Ryan's sister, Helen Thomas, the court entered an order to show cause which, among other things, authorized plaintiff to make immediate arrangements "for the taking of blood ... from the body of John J. Ryan ... so genetic testing can be accomplished for [the] purpose of determining whether the decedent is plaintiff's natural father." *fn1 The order also directed Ryan's "attorney-in-fact or the executor/administratrix" and the funeral director to permit such samples to be taken before Ryan's body was embalmed. A sample of Ryan's blood was drawn pursuant to this order, and DNA testing of the blood indicated that there is a high probability Ryan was plaintiff's biological father.

Plaintiff subsequently filed an amended complaint adding as a defendant Thomas who, if plaintiff's claim were unsuccessful, would be entitled, as Ryan's only next of kin, to inherit his entire estate under the rule of intestate succession set forth in N.J.S.A. 3B:5-4(c). Thomas also is the current administratrix of Ryan's estate.

Defendants filed a motion to dismiss plaintiff's complaint on the ground that it is barred by the section of the Parentage Act which prohibits paternity actions brought more than five years after a child attains the age of majority (i.e., after the child reaches twenty-three years of age). N.J.S.A. 9:17-45(b). The trial court granted this motion but also gave plaintiff an opportunity to file an amended complaint alleging a cause of action in tort based on Ryan's failure to disclose during his lifetime that he was plaintiff's father. Plaintiff then filed a second amended complaint which added various tort claims. *fn2

Thereafter, plaintiff filed a motion for reconsideration of the order dismissing her paternity claim. After extensive oral argument, the trial court reversed its earlier decision and concluded that plaintiff's paternity claim was not barred by the limitations provision of the Parentage Act. The court's essential rationale was that an action to establish paternity post-mortem is governed by the Probate Act, rather than by the Parentage Act. The court memorialized this decision by an order denying summary judgment "on the issue of paternity." We granted defendants' motion for leave to take an interlocutory appeal from this order and now reverse.

I

In 1983 the Legislature enacted the Parentage Act, L. 1983, c. 17, which is based on the Uniform Parentage Act proposed by the National Conference of Commissioners on Uniform State Laws. Assembly Judiciary, Law, Public Safety and Defense Committee Statement on Senate Bill No. 888, L. 1983, c. 17 (1982), reprinted in, comments to N.J.S.A. 9:17-38. One of the objectives of this legislation was "to provide a procedure to establish parentage in disputed cases." Ibid. Thus, the Parentage Act prescribes the parties who may bring a paternity action, N.J.S.A. 9:17-45(a); authorizes the appointment of a guardian ad litem for a child whose paternity is in dispute, N.J.S.A. 9:17-47; establishes procedures for requesting a trial by jury, N.J.S.A. 9:17-49; authorizes the court to require blood tests to be taken, and to admit evidence of blood or genetic tests, N.J.S.A. 9:17-48(d),(g); establishes procedures to compel testimony and evaluate the admissibility of evidence of other sexual relations, N.J.S.A. 9:17-50; sets forth certain forms of evidence that may be relied upon to prove or disprove paternity, N.J.S.A. 9:17-52, including evidence that will give rise to a presumption that a man is the natural father of a child, N.J.S.A. 9:17-43(a); and establishes the burdens of proof that govern such actions, N.J.S.A. 9:17-43(b),(d). Most significantly for the purposes of this appeal, the Parentage Act provides that "no action shall be brought under this act more than 5 years after the child attains the age of majority." N.J.S.A. 9:17-45(b).

When the Legislature first enacted the Parentage Act, the Probate Act contained a separate provision dealing with the establishment of paternity for the purpose of intestate succession. N.J.S.A. 3B:5-10 then provided in pertinent part:

If, for the purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through or from a person, a child born out ...


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