## Facts

- Gregory Allen Burden died intestate in August 2004.
- Tara Burden, Gregory’s marital daughter, petitioned to administer the estate and claimed she was the sole intestate heir.
- Dale Agnew, Gregory’s nonmarital biological son, objected and sought recognition as an heir under California Probate Code § 6453(b)(2).
- Dale was born in 1971 after Dale’s mother declined Gregory’s marriage proposal and married another man shortly before Dale’s birth; that man was listed as father on Dale’s birth certificate and raised Dale.
- Dale learned Gregory was his biological father around 1989 and met Gregory’s mother and siblings, who accepted him as Gregory’s son.
- Gregory communicated directly with Dale, acknowledging paternity (including apologizing for being an “inactive father” and noting a family resemblance), but requested that Tara not be told and that Dale avoid events where Tara would be present.
- Gregory’s mother and siblings testified that Gregory referred to Dale as his son, and an email from Gregory to his sister acknowledged his role in Dale’s conception while expressing reluctance to form a relationship.

## Issues

1. Whether Dale proved, by clear and convincing evidence under Probate Code § 6453(b)(2), that Gregory “openly held out” Dale as his child, establishing a father-child relationship for intestate succession.

## Decision

- The Court of Appeal affirmed the probate court’s order recognizing Dale as Gregory’s child for intestate succession purposes.
- The court held that Gregory’s lifetime acknowledgments to Dale and to close family members, corroborated by testimony and an email, were sufficient to satisfy § 6453(b)(2).
- The court rejected Tara’s argument that Gregory’s request for secrecy as to Tara defeated the “openly held out” requirement.
- Applying appellate review of a clear-and-convincing finding, the court concluded substantial evidence supported the probate court’s determination and declined to reweigh credibility.

## Legal Principles

- A nonmarital child may establish a father-child relationship for intestate succession by clear and convincing evidence that the father “openly held out the child as his own.” (Cal. Prob. Code § 6453(b)(2).)
- “Openly held out” does not require formal acts (such as placement on a birth certificate) or broad public disclosure; acknowledgments made to the child and to persons with significant ties to the father may suffice.
- Selective nondisclosure to some individuals does not, by itself, negate “openly held out” where the father affirmatively acknowledged paternity in other meaningful settings.
- On appeal from a probate finding made under a clear-and-convincing standard, the reviewing court examines whether substantial evidence supports the finding when the record is viewed in favor of the prevailing party.

## Conclusion

The court affirmed that Dale qualified as an intestate heir because clear and convincing evidence showed Gregory acknowledged Dale as his son during his lifetime in a manner not wholly concealed, satisfying Probate Code § 6453(b)(2) despite Gregory’s partial secrecy within the family.


Estate of Burden, 146 Cal. App. 4th 1021 (Cal. Ct. App. 2007)