## Facts

- Roy Gilmore executed a will in June 1996 leaving his entire estate to his daughter, Angela Manning, and naming her executor.
- Andrea Hofler and Malverick Hofler were Gilmore’s nonmarital biological children, born before the will’s execution.
- Gilmore did not know of the Hoflers’ existence when he executed the will.
- Gilmore later learned of his paternity, but died on January 13, 2007 without changing or republishing the will.
- Manning offered the 1996 will for probate.
- The Hoflers objected and sought a statutory share as pretermitted children under EPTL 5-3.2, arguing they should be treated as “after-born” children because they were “after-known” to the testator.
- The Surrogate’s Court denied the Hoflers’ motion for summary judgment and rejected their EPTL 5-3.2 claim; the Hoflers appealed.

## Issues

1. Whether biological children born before execution of a will, but unknown to the testator until afterward, qualify for a share under EPTL 5-3.2 as pretermitted children.
2. Whether such “after-known” biological children may be treated like children adopted after will execution under the judicial extension of EPTL 5-3.2.

## Decision

- The Appellate Division affirmed the order denying the Hoflers’ claim under EPTL 5-3.2.
- The statute’s plain language limits protection to children born after execution of the will; children born before execution do not qualify even if the testator was unaware of them.
- The judicially recognized extension for certain after-adopted children did not apply because adoption creates a new legal parent-child relationship after execution, unlike preexisting biological parentage.
- Any expansion of EPTL 5-3.2 to cover “after-known” biological children was deemed a legislative, not judicial, matter.

## Legal Principles

- EPTL 5-3.2 applies to children born after execution of a will who are omitted; courts apply the statute according to its unambiguous text.
- Courts may not add categories of beneficiaries by implication where the Legislature did not include them.
- The limited judicial extension of pretermitted-child protection to certain after-adopted children rests on adoption’s post-will creation of a legal parent-child relationship and does not extend to biological children whose status existed before the will.
- Estate-distribution statutes that adjust testamentary intent are construed narrowly to preserve certainty and the testator’s expressed plan absent clear statutory direction.

## Conclusion

Because the Hoflers were born before the will’s execution, they were outside EPTL 5-3.2’s scope despite the testator’s later discovery of their existence, and the court declined to expand the statute beyond its text or the narrow after-adoption line of cases.


In re Gilmore, 87 A.D.3d 145 (N.Y. App. Div. 2d Dep’t 2011)