In re Estate of William J. Hannifin

This opinion is subject to revision before final
publication in the Pacific Reporter.

2013 UT 46

IN THE

SUPREME COURT OF THE STATE OF UTAH
———————
In the Matter of the ESTATE OF WILLIAM J. HANNIFIN
———————
MAX HILL, as Special Administrator of the Estate,
Appellant,
v.
WILLIS NAKAI, individually and as
Personal Representative of the Estate,
Appellee.
———————
No. 20111125
Filed August 2, 2013
———————
Third District, Salt Lake
The Honorable Robert K. Hilder
No. 103900808
———————
Attorneys:
Charles M. Bennett, Salt Lake City, for appellant
Donald J. Winder, Jerald V. Hale, Salt Lake City, for appellee
———————
JUSTICE LEE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT and ASSOCIATE CHIEF JUSTICE NEHRING
joined.
JUSTICE DURHAM filed a dissenting opinion,
in which JUSTICE PARRISH joined.
———————

JUSTICE LEE, opinion of the Court:

¶1 Max Hill, in his capacity as Special Representative of the
Estate of William J. Hannifin, appeals from a district court order
awarding Willis Nakai a portion of that estate. Though Nakai is
neither biologically nor legally related to Hannifin, the district
court determined that he was nonetheless entitled to inherit under
the doctrine of equitable adoption.
 IN RE ESTATE OF WILLIAM J. HANNIFIN
Opinion of the Court

¶2 We reverse. We hold that the doctrine of equitable adop-
tion, first recognized in In re Williams’ Estates, 348 P.2d 683 (Utah
1960), has been preempted by the detailed provisions of Utah‘s
Probate Code. See UTAH CODE §§ 75-1-101 to -8-101. And, because
Nakai does not qualify under the Probate Code‘s intestate succes-
sion provisions, we reverse the decision entitling him to inherit
from Hannifin.

I
¶3 Willis Nakai is a member of the Navajo Nation. He was
raised by his aunt from infancy to age five or six. After her death,
he attended a series of boarding schools, though his biological
parents were living and married to each other throughout his
childhood. At one of these schools, the Intermountain Indian
School (IIS) in Brigham City, Utah, Nakai met Father William J.
Hannifin, an Episcopal priest.
¶4 In the summer of 1958, Hannifin had occasion to visit the
Navajo Reservation near Aneth, Utah, where Nakai and his family
were then residing. During this visit, Hannifin had a conversation
with Nakai‘s mother and maternal grandparents, during which
Nakai‘s mother asked Hannifin to take Nakai—who was fourteen
years old at the time—and raise him as his own child. Hannifin
agreed. Because Nakai‘s father was frequently away from home
and not involved in family matters, he was not a party to this
conversation.
¶5 Hannifin assumed this parental role when Nakai returned
to IIS the following school year. Though Nakai subsequently
made brief yearly visits to see his biological family, his parents
did not assert parental control over him and did not support him
financially. Instead, from that point forward, Hannifin provided
Nakai an allowance, food, clothing, medical care, transportation,
and emotional support. He monitored Nakai‘s schoolwork and
generally provided for Nakai‘s health and welfare. Though Nakai
initially boarded at IIS and visited Hannifin only on weekends
and holidays, he began living with Hannifin full time after he de-
veloped health problems during his secondary education and con-
tinued to live there throughout his secondary and college educa-
tion.
¶6 From Nakai‘s return to IIS in 1958–59 until the end of Han-
nifin‘s life, the two referred to each other as father and son and

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Opinion of the Court

held themselves out to the community as such. Even after Nakai
married and moved out of Hannifin‘s house, he and Hannifin
maintained a close relationship, with Hannifin providing Nakai
counsel and acting as if he were grandfather and great-
grandfather to Nakai‘s children and grandchildren. Hannifin even
arranged for many of his assets, including his life insurance poli-
cy, bank accounts, and investment accounts to be transferred to
Nakai upon Hannifin‘s death.
¶7 Yet when Hannifin died in 2009, he was intestate and had
no spouse and no biological descendants. Nakai, alleging that he
and his family were Hannifin‘s only known heirs and devisees,
petitioned to be appointed as Personal Representative of Han-
nifin‘s estate, which petition the district court granted.
¶8 Max Hill, acting on behalf of himself and nineteen other
collateral relatives of Hannifin, petitioned the court to be appoint-
ed Special Administrator of Hannifin‘s estate for the limited pur-
pose of contesting Nakai‘s claim to the estate. The court granted
Hill‘s petition and, following a bench trial, held that under the
doctrine of equitable adoption, Nakai was entitled ―to inherit
from Father Hannifin‘s estate as though he were his legally
adopted son.‖ The district court also awarded Nakai attorney fees,
which Hill opposed on the grounds that Nakai was not eligible to
serve as Personal Representative.
¶9 Hill filed this appeal, arguing that Utah‘s enactment of the
Probate Code preempted the common law doctrine of equitable
adoption. That is a question of law, which we review de novo. See
Navajo Nation v. State (In re Adoption of A.B.), 2010 UT 55, ¶ 21, 245
P.3d 711.
II
¶10 We have long recognized the axiom ―that our precedent
must yield when it conflicts with a validly enacted statute.‖ Pat-
terson v. Patterson, 2011 UT 68, ¶ 37, 266 P.3d 828. Statutes ―may
preempt the common law either by governing an area in so perva-
sive a manner that it displaces the common law‖ (field preemp-
tion) ―or by directly conflicting with the common law‖ (conflict
preemption). OLP, L.L.C. v. Burningham, 2009 UT 75, ¶ 16, 225 P.3d

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 IN RE ESTATE OF WILLIAM J. HANNIFIN
Opinion of the Court

177.1 Preemption may be indicated expressly, by a stated intent to
preempt the common law. ―More often,‖ however, ―explicit pre-
emption language does not appear, or does not directly answer
the question. In that event, courts must consider whether the . . .
statute‘s structure and purpose or nonspecific statutory language
nonetheless reveal a clear, but implicit, pre-emptive intent.‖ Bish-
op v. GenTec Inc., 2002 UT 36, ¶ 9, 48 P.3d 218 (alteration in origi-
nal) (internal quotation marks omitted).

¶11 We have relied on ―the federal model for determining
whether federal law pre-empts state law‖ to determine ―whether
a state statute pre-empts the common law.‖ Id.; see UTAH CODE
§ 68-3-2(1) (―The rule of the common law that a statute in deroga-
tion of the common law is to be strictly construed does not apply
to the Utah Code.‖). Under that model, ―[f]ield preemption occurs
when the scope of a statute indicates that [the legislature] intend-
ed [a statute] to occupy a field‖ in such a way ―as to make reason-
able the inference that [the legislature] left no room for the [com-
mon law] to supplement it.‖ In re Adoption of A.B., 2010 UT 55,
¶ 31 (internal quotation marks omitted). Conflict preemption, on
the other hand, ―occurs where it is impossible . . . to comply with
both [the common law] and [a statute], or where [the common
law] stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of [the legislature].‖ Id. ¶ 33 (al-
teration in original) (internal quotation marks omitted).

¶12 This notion of conflict preemption is reiterated in the Pro-
bate Code. Though the Code provides that ―principles of . . . equi-
ty supplement its provisions,‖ UTAH CODE § 75-1-103, it also con-
tains an express caveat that principles of equity may not be in-
voked where they are ―displaced by the particular provisions of
th[e] code.‖ Id. A judge-made doctrine that conflicts with a statute
is certainly ―displaced‖ by it.2

1 See Daniels v. Gamma W. Brachytherapy, LLC, 2009 UT 66, ¶ 49,
221 P.3d 256 (―A statute preempts a common law claim by specifi-
cally adopting a limitation or prohibition on a claim or by com-
prehensively addressing a particular area of law such that it dis-
places the common law.‖).
2 The argument that equitable adoption properly ―supple-
ment[s]‖ the Code because it operates ―parallel with‖ it infra ¶¶

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¶13 We find the Code to displace the doctrine of equitable
adoption recognized in Williams’ Estates. In that case, a couple
took a child into their home, agreeing with the birth mother that
they would adopt the child and ―raise, care for and treat [her] in
all respects as their own child.‖ In re Williams’ Estates, 348 P.2d
683, 685 (Utah 1960). Though they never formally adopted the
child, they did raise her as their own. Id. at 684. And when the
couple died intestate, the child claimed that ―she should be
awarded the same share of the Williamses[‗] estate as she would
have been entitled to had they . . . fulfilled their agreement to
adopt.‖ Id. We agreed that a child in that situation could possibly
inherit through intestacy, noting that

39–40, is an effective acknowledgement that the two cannot be
reconciled. A doctrine that operates outside (parallel to) the Code
cannot be seen as a supplement to it. That is not to say that no
provision of the Probate Code is amenable to supplementation. It
is merely a recognition that the provisions prescribing who can
take through succession (and in what order) are not. They are
clear and detailed and leave no room for common-law adaptation.
See Riddell v. Edwards, 76 P.3d 847, 855–56 (Alaska 2003) (recogniz-
ing that Alaska‘s Uniform Probate Code gives courts ―latitude to
supplement statutory provisions with equitable principles‖ but
deciding that ―the particular provisions of statutory law govern-
ing void and voidable marriages and accrual of allowances and
share fully covered [the circumstances of the case] and affirma-
tively displaced the equitable remedy‖ sought (internal quotation
marks omitted)). So the fact that we may have supplemented oth-
er parts of the Code in the past has no bearing on our decision in
this case. See infra ¶ 40 (citing cases where we have purportedly
―supplemented [the code] in . . . outcome-determinative ways‖).
In any event, in none of these past instances have we supplement-
ed the Code in a way that conflicts with it. See, e.g., In re Estate of
Pepper, 711 P.2d 261, 263 (Utah 1985) (holding that a rule 60(b) mo-
tion can vacate an otherwise final closing order, a result that is
specifically allowed under section 75-1-304‘s assertion that ―the
rules of civil procedure, including the rules concerning vacation of
orders and appellate review, govern formal proceedings under
the [Probate Code]‖ (internal quotation marks omitted)).

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 IN RE ESTATE OF WILLIAM J. HANNIFIN
Opinion of the Court

[i]t is generally recognized that where a child‘s par-
ents agree with the adoptive parents to relinquish all
their rights to the child in consideration of the adopt-
ed parents‘ agreement to adopt such child, . . . and
such agreement is fully performed by all parties con-
nected with such contract except there is no actual
adoption, the courts will decree specific performance
of such contract and thereby award to the child the
same distributive share of the adoptive parents‘ es-
tate as it would have been entitled to had the child
actually been adopted as agreed.

Id.

¶14 In such circumstances, we determined that ―[a] contract to
adopt . . . may be proved by circumstantial evidence, but such ev-
idence must be clear and convincing.‖ Id. at 684–85. Though we
have not had occasion to opine on this doctrine since it was rec-
ognized, most other jurisdictions employing the doctrine have fol-
lowed the same path, requiring claimants to prove the existence of
an agreement to adopt. Modern Status of Law as to Equitable Adop-
tion or Adoption by Estoppel, 122 A.L.R. 5th 205 (2012). Most also
limit use of the doctrine to situations that benefit the equitably
adopted child, meaning, for example, that the doctrine does not
prevent the equitably adopted child from inheriting from natural
parents, and typically cannot be used by an adoptive parent to in-
herit from the equitably adopted child. Id. Courts deem these and
other similar restrictions proper ―since equitable adoption is only
an equitable remedy to enforce a contract right, is not intended or
applied to create the legal relationship of parent and child, with
all the legal consequences of such relationship, [and] is [not]
meant to create a legal adoption.‖ Id.

¶15 The Probate Code, enacted fifteen years after we embraced
equitable adoption in Williams’ Estates, is in direct conflict with the
doctrine in three principal respects: (A) Equitable adoption allows
children who cannot satisfy the Probate Code‘s definition of
―Child‖ to nonetheless participate in intestate succession as if they
had. (B) Equitably adopted children can take by succession from
both natural and adoptive parents—despite the Code‘s clear
mandate to the contrary. (C) The doctrine adds confusion and
complexity to our law‘s intestate succession scheme, in contraven-

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tion of the Code‘s stated purpose of streamlining and clarifying
the distribution of a decedent‘s estate.

¶16 In light of these conflicts, the equitable adoption doctrine
cannot be squared with the Probate Code; it is impossible to satis-
fy both the requirements of the Probate Code and the elements of
equitable adoption.3 This is a doctrine in conflict with the Code,
which we therefore repudiate as preempted by statute.4

A

¶17 At the time of our decision in Williams’ Estates, our intestate
succession statutes did not define the terms ―child‖ or ―parent.‖
See UTAH CODE § 74-4-1 to -24 (1953). They did not distinguish
classes of children that could take by succession (such as natural
and adopted children) from those that could not (like foster chil-
dren, stepchildren, and grandchildren). The Probate Code
changed the landscape by providing precise definitions of parties
legally entitled to take by intestate succession. These provisions
displaced the open-ended system within which Williams’ Estates
was situated.5

3 Though we typically ―reconcile the common law with statutory
law whenever possible,‖ see infra ¶ 36, here, for all the reasons
discussed below, reconciliation is not possible.
4 Though a number of states that have adopted the Uniform
Probate Code have continued to endorse equitable adoption, see
e.g., Poncho v. Bowdoin, 126 P.3d 1221, 1226 (N.M. Ct. App. 2005);
Johnson v. Johnson, 617 N.W.2d 97, 101 (N.D. 2000), none of these
states, to our knowledge, have considered the key question ad-
dressed herein—whether there are conflicts between the Code and
the common law doctrine that sustain a finding of preemption.
See, e.g., Calista Corp. v. Mann, 564 P.2d 53, 61 & n.18 (Alaska 1977)
(accepting and applying the doctrine without any preemption dis-
cussion or analysis). And absent some analysis of this pivotal is-
sue, these precedents are unhelpful. We look to other states‘
caselaw to help us analyze the legal questions before us, not as a
statistical exercise of nose-counting.
5 Admittedly, the previous version of the Probate Code detailed
the order in which different categories of takers took through suc-

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Opinion of the Court

¶18 The Probate Code provides that ―[a]ny part of a decedent‘s
estate not effectively disposed of by will passes by intestate suc-
cession to the decedent‘s heirs as provided in‖ the Code. UTAH
CODE § 75-2-101(1). Thus, the Code establishes a detailed scheme
that governs the priority by which certain classes of heirs are enti-
tled to succeed to the decedent‘s estate. Under the Code, ―[a]ny
part of the intestate estate‖ that does not pass to the decedent‘s
spouse (because, for example, the decedent‘s spouse did not sur-
vive him) passes ―to the decedent‘s descendants per capita at each
generation,‖ id. § 75-2-103(1)(a), and if no surviving descendants
exist, then to the decedent‘s parent(s), id. § 75-2-103(1)(b). And if
neither parent survived the decedent, the estate goes to the par-
ents‘ descendants, if any, and then, if none exist, to the decedent‘s
grandparents or the grandparents‘ descendants. Id. § 75-2-
103(1)(c)-(e).

¶19 The second group of takers, ―the decedent‘s descendants,‖
generally includes a decedent‘s children, ―with the relationship of
parent and child . . . being determined by the definition of child
and parent contained in [the Probate Code].‖ Id. § 75-1-201(9).
And according to the Code, a ―Child‖ is ―any individual entitled
to take as a child under this code by intestate succession from the
parent whose relationship is involved and excludes any person
who is only a stepchild, a foster child, a grandchild, or any more
remote descendant.‖ Id. § 75-1-201(5). ―Parent‖ similarly ―includes
any person entitled to take, or who would be entitled to take if the
child died without a will, as a parent under this code by intestate
succession from the child whose relationship is in question and
excludes any person who is only a stepparent, foster parent, or
grandparent.‖ Id. § 75-1-201(33). And ―for purposes of intestate
succession by, through, or from a person, an individual is the
child of the individual‘s natural parents‖ and ―[a]n adopted indi-
vidual is the child of the adopting parent or parents and not of the
natural parents.‖ Id. § 75-2-114(1), (2).

¶20 By enacting a Probate Code with a specific definition of
―child‖ that excludes those ―equitably‖ adopted, the legislature

cession. See UTAH CODE § 74-4-5 (1953). But it did not define the
proper members of each of these categories, and it was open-
ended in that respect. See infra ¶ 38 n.2.

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preempted common law doctrines that are in conflict with the re-
sults those definitions require.6 See Christensen v. Christensen (In re
Estate of Christensen), 655 P.2d 646, 649 (Utah 1982) (deciding that
because the Probate Code ―makes no mention‖ of a term that
―figured prominently in prior statutes and case law‖ that the
―omission must have been deliberate,‖ particularly ―[i]n a statute
so carefully drafted‖ and determining that ―re-engraft[ment]‖ of
that term ―by judicial decision‖ would be ―inappropriate‖). Under
this scheme and according to these definitions, the only methods
of determining who is a child for intestate succession purposes are
legal adoption and natural parentage.7 And Nakai is neither Han-
nifin‘s legally adopted nor his natural child.8 The closest Nakai
comes to any of the relations delineated in the Probate Code is to a

6 See In re Estate of Peterson, 716 P.2d 801, 803 (Utah 1986) (refus-
ing to allow a judgment creditor to be joined in probate court pro-
ceeding as an interested party because ―the Uniform Probate Code
expressly limit[s] the categories of interested persons that may
present claims‖ and the creditor was ―not among those designat-
ed‖).
7 Perhaps the doctrine of equitable adoption ―is not premised on
our ability to judicially define the statutory term ‗child‘ or ‗par-
ent.‖‘ See infra ¶ 39. But that does not at all answer the question
before us. The fact that equitable adoption countermands the stat-
utory definitions of ―child‖ and ―parent‖ does. Because the statute
now provides these definitions, we can no longer define those cat-
egories as we see fit. The statutory definitions foreclose our ability
to decide that ―justice require[s] awarding‖ a person that does not
meet those definitions ―the same inheritance she would have re-
ceived if‖ she did. See infra ¶ 39.
8 It is telling that under these definitions as well as under equi-
table adoption, Hannifin can never qualify as a ―parent.‖ Because,
as Nakai argues, equitable adoption ―is not intended to create the
legal relationship of parent and child . . . and does not effect a le-
gal adoption‖, it can never be used in reverse to allow an ―adop-
tive‖ parent to take through intestate succession from an equita-
bly adopted child. So, under the facts before us and as another ex-
ample of the conflict between the Code and equitable adoption,
not only is Nakai not a child, but Hannifin is also not a parent for
purposes of intestate succession.

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Opinion of the Court

foster child, which is a category specifically excluded from taking
intestate. Yet he falls short even there. A foster child/parent rela-
tionship is one marked by legal rights and responsibilities, neither
of which existed in this case. Nakai thus can have no claim under
the Probate Code to a distribution through intestate succession.

¶21 It is thus impossible to comply with both the Probate Code
and with the principles of equitable adoption. See In re Adoption of
A.B., 2010 UT 55, ¶ 33 (stating that conflict preemption ―occurs
where it is impossible . . . to comply with both [the common law]
and [a statute]‖). Because Hannifin had neither a spouse nor chil-
dren, the Probate Code requires that his estate pass to his parents
or, if neither survived him, to his parents‘ descendants. UTAH
CODE § 75-2-103(1)(a)-(c). If no takers exist in those categories,
then his estate must past to his grandparents or, if none survived
him, to their descendants. The statutory scheme makes this chain
of distribution both clear and mandatory. And Hill and his fellow
relatives qualify as takers in that chain. In contrast, equitable
adoption requires that the estate pass to Nakai, a legal stranger to
Hannifin, leaving nothing for Hill and the others. There is no way
to reconcile the two different sets of requirements.

B

¶22 Another intractable conflict between the Probate Code and
equitable adoption stems from section 75-2-114(1)-(2), which
states that ―for purposes of intestate succession . . . [a]n adopted
individual is the child of the adopting parent . . . and not of the
natural parents.‖ This section operates to prohibit adopted chil-
dren from taking by intestacy from both their natural parents and
their adoptive parents. This is in direct contravention of the doc-
trine of equitable adoption, which is purely beneficial to the child
and in no way alters the legal relationship between the claimant
and the decedent or between the claimant and the biological par-
ents. See infra ¶ 43.

¶23 At the time of Williams’ Estates, dual succession was per-
mitted under our common law. In Benner v. Garrick (In re Benner’s
Estate), 166 P.2d 257, 258 (Utah 1946), we recognized that principle
while rejecting the argument that our succession statute fore-
closed it. In so doing, the court concluded that ―a great array of
authority convinces us that the laws of adoption do not so limit

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[the succession statute] as to cause a child, on being adopted, to
lose its right to inherit from its natural parent.‖ Id. The referenced
succession statute provided only that ―[i]f the decedent leaves no
surviving husband or wife, but leaves issue, the whole estate goes
to such issue, and if such issue consists of more than one child liv-
ing, or one child living and the issue of one or more deceased
children, then the estate goes in equal shares to the children liv-
ing, or to the child living and the issue of the deceased child or
children by right or representation.‖ UTAH CODE § 101-4-5(2)
(1946). The rule allowing dual inheritance existed only in the
common law; it was never codified.

¶24 Thus, at the time of Williams’ Estates, the Utah Code posed
no barrier to a ―beneficial‖ law of equitable adoption that could
establish a right of succession from an equitably adopting parent
without foreclosing any succession rights on the part of or flowing
from natural parents. But when our legislature enacted the Pro-
bate Code fifteen years later, it expressly foreclosed that possibil-
ity. It did so by enacting section 114, which prevents a child from
inheriting from two sets of parents. See UTAH CODE § 75-2-114(1)-
(2) (―[F]or purposes of intestate succession . . . [a]n adopted indi-
vidual is the child of the adopting parent . . . and not of the natu-
ral parents.‖). That is a significant legislative development in our
law in the Probate Code and one that is in direct conflict with eq-
uitable adoption.

¶25 True, section 114 is more explicit in its rejection of the rul-
ing in In re Brenner’s Estate than in its overriding of the broad
principle of Williams’ Estates. But the fact that the legislature could
have preempted Williams’ Estates more explicitly is of no conse-
quence. In any matter of statutory construction of any conse-
quence, it will almost always be true that the legislature could
have more clearly repudiated one party‘s preferred construction.
But the converse is almost always true as well, as it is here: Just as
the legislature could have explicitly discarded the doctrine by
name, it also could have expressly preserved it, as the California
legislature did. See CAL. PROBATE CODE § 6455 (―Nothing in this
chapter affects or limits application of the judicial doctrine of eq-
uitable adoption for the benefit of the child or the child‘s issue.‖).

¶26 The legislature‘s failure to speak more clearly does not
provide a basis for us interpreting the unambiguous words that it

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Opinion of the Court

did use. See Badaracco v. C.I.R., 464 U.S. 386, 398 (1984) (―Courts
are not authorized to rewrite a statute because they deem its ef-
fects susceptible of improvement.‖). And those words are plenty
clear enough. The Probate Code expressly forecloses a core ele-
ment of the doctrine of equitable adoption (dual succession).9 That
is more than enough to sustain the conclusion that the Code is in
conflict with the common law doctrine, and thus that the latter is
preempted.

¶27 We do not and cannot require the legislature to use magic
words or express references to our precedent to preempt it. So it is
no matter that ―[n]o provision in the Probate Code mentions . . .
equitable adoption‖ or that ―the legislature has not specifically
abolished equitable adoption,‖ as Nakai claims. We look at the
words the statute does use, the results those words require, and
the scheme that they create to decide whether our precedent has a
continuing place in the law. See Bishop, 2002 UT 36, ¶ 9; Burning-
ham, 2009 UT 75, ¶ 16. And here the answer is clear. Dual succes-
sion is an inherent element of equitable adoption. Yet dual succes-
sion is expressly foreclosed by statute. The conflict is palpable and
explicit. Again, it is impossible to comply with both the Probate
Code and with the judge-made doctrine of equitable adoption, as
the former prohibits what the latter requires. And in light of this
conflict, our only option is to abandon the doctrine of equitable
adoption.

9 Our holding is not that section 114 contains ―a one-person-one-
inheritance rule.‖ See infra ¶ 44. Rather, the statute establishes a
one-set-of-parents inheritance rule. And equitable adoption treats
an equitable adoptee as one entitled to inherit from a decedent as
though she were the biological or adopted child of the decedent
without cutting off inheritance rights from actual biological or
adoptive parents. See infra ¶ 43. That treatment, moreover, runs
afoul of Section 114. Our construction of that section, and of the
other intestacy provisions of the Probate Code, does nothing to
alter the ability of ―individuals to inherit from a wide range of rel-
atives.‖ See infra ¶ 44. It simply gives proper respect to the word
―relative.‖

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C

¶28 Such abandonment is the only way to maintain fidelity to
the objectives expressly detailed in the Probate Code. See Bishop,
2002 UT 36, ¶ 9 (stating the court considers a statute‘s stated ob-
jective in determining preemptive intent). As the Code indicates,
its detailed intestate succession scheme is designed:

(a) To simplify and clarify the law concerning the af-
fairs of decedents, missing persons . . .;

(b) To discover and make effective the intent of a de-
cedent in distribution of his property;

(c) To promote a speedy and efficient system for ad-
ministering the estate of the decedent and making
distribution to his successors;

(d) To facilitate use and enforcement of certain trusts;
and

(e) To make uniform the law among the various juris-
dictions.

Id. § 75-1-102(2).

¶29 The doctrine of equitable adoption undermines these objec-
tives by introducing uncertainty, complexity, and inefficiency—
the very evils the Probate Code was designed to avoid.

¶30 Though the equitable adoption doctrine has been on the
books for more than fifty years, neither we nor any other Utah
court has given it any dimension. This boundary-less quality is
another point of incompatibility with the Probate Code, which
values predictability and stability. Were we to retain the doctrine,
we would have to provide predictable definition to the otherwise
vague standard announced in Williams’ Estates. For instance, in
future cases we would surely be called on to decide questions
along the following lines: Must both biological parents be party to
the agreement to adopt? What kind of evidence is required to
prove the existence of an agreement to adopt? How long must the
adoptive parents treat the child as their own before the child qual-
ifies for intestate succession? Just how limited must the child‘s re-

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Opinion of the Court

lationship with his biological family be? How completely must the
natural parents relinquish ―all their rights to the child‖?10

¶31 In working to populate these fields, we would only com-
pound the problem we identify today. With each new contour
added to the standard, we would inevitably substitute our own
policy choice for that expressed by the legislature when it enacted
the Probate Code. We cannot condone such substitution.11 In the
Code the legislature decided, as a policy matter, that efficiency
and predictability are best served by distributing the estates of
those that die intestate in accordance with a prediction as to the
preference of the average intestate decedent.12 And that prediction
follows biological and legal relationship lines.13 We have no au-

10 The dissent suggests that equitable adoption doesn‘t conflict
with the Probate Code because the statute‘s ―invit[ation]‖ to sup-
plement the Probate Code with legal and equitable principles is
evidence that ―the legislature evidently is willing to tolerate a de-
gree of complication in furtherance of a just and equitable out-
come.‖ See infra ¶ 46. But the legislature can be seen as making
that determination only where it left room for such supplementa-
tion. Here it left no such room.
11 See Harper v. Lucas (In re Estate of Lucas), No. ADM 1327-03,
2005 WL 674682, at *7–8 (D.C. Super. March 22, 2005) (―The legis-
lature of the District of Columbia has . . . provided a comprehen-
sive set of laws for intestate succession . . . . This Court is of the
opinion that it should not use its equity power to disturb the Dis-
trict‘s statutory scheme. . . . Whether to permit inheritance by one
who is neither the natural nor the adopted child of an intestate is a
policy issue for the legislative branch.‖).
12 See UNIF. PROBATE CODE, art. II, pt. 1 gen. cmt. (1969) (stating
that the Probate Code is a gap filler meant ―to reflect the normal
desire of the owner of the wealth as to the disposition of his prop-
erty at death‖); Joel R. Glucksman, Intestate Succession in New Jer-
sey, Does it Conform to Popular Expectations?, 12 COLUM. J. L. & SOC.
PROBS. 253, 266 (1976) (stating that intestacy laws ―pattern what
people desire to do in distributing an estate‖).
13 The question whether the decedent in this case ―would likely
have preferred to leave his estate to an individual whom the de-
cedent raised as his own child rather than to distant relatives,‖

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Opinion of the Court

thority to second-guess that decision.14 Doing so would substitute
our preference for that of the legislature. It would also override
the presumptive preference of the decedent, who is entitled to
presume that absent a will his estate will pass in accordance with
the detailed scheme enacted by the legislature, and not with the
second-guesses of a court.15

¶32 Thus, equitable adoption ―stands as an obstacle to the ac-
complishment and execution of the full purposes and objectives of
[the legislature]‖ in enacting the Probate Code. In re Adoption of
A.B., 2010 UT 55, ¶ 33. The two cannot coexist. And when a

infra ¶ 47, is a matter beyond our capacity to resolve on this rec-
ord. As an appellate court we are in no position to engage in such
speculation. And in any event the question is withheld from us by
the terms of the Probate Code.
14 It is certainly true, as the dissent suggests, that ―the legislature
can amend the statute to direct a different outcome in future cas-
es‖ if it ―disapproves‖ of the way we tinker with its statutory en-
actments. See infra ¶35. But the availability of a legislative self-
help remedy is of little consequence. We are tasked with interpret-
ing the legislature‘s handiwork by our best lights. It is not enough
to offer a merely plausible construction in the anticipation that the
legislature will override us if we mistake its intent.
It may be that ―[s]tate courts and state legislatures function in
dialogue with one another.‖ See infra ¶ 35. But in this dialogue
and in this context, when the legislature speaks, we must listen.
We cannot properly speak over the legislature‘s voice on this mat-
ter. And though we may be free to ―call the attention of the legis-
lature to statutes in need of clarification or modernization,‖ see
infra ¶ 35, we should not force such changes on the legislature by
judicial mandate.
15 The dissent posits that equitable adoption may represent the
wishes of some decedents and may not prolong all estate proceed-
ings. See infra ¶¶ 47–48. But this hedging is significant; it ultimate-
ly supports the conclusion that equitable adoption adds uncer-
tainty and complexity to the intestacy scheme.

15
 IN RE ESTATE OF WILLIAM J. HANNIFIN
JUSTICE DURHAM, dissenting

statute and common law principle butt heads, the common law
must yield.

III

¶33 We accordingly jettison the doctrine of equitable adoption
as a vestige of a common-law friendly intestacy regime that has
been overtaken by statute. Thus, we hold that the administration
of Hannifin‘s estate is subject to the express terms of the Probate
Code, including terms governing matters of distribution and rep-
resentation. We reverse and remand for further proceedings con-
sistent with this opinion.
——————
JUSTICE DURHAM, dissenting:

¶34 I disagree with the majority‘s conclusion that it is ―impos-
sible‖ to follow both the doctrine of equitable adoption and Utah‘s
version of the Uniform Probate Code (Probate Code or Code). See
supra ¶ 16.
¶35 State courts and state legislatures function in dialogue with
one another and serve as checks on one another‘s power—
alternately reinforcing, calling into question, and even reversing
the other‘s law-making activities. In the words of one commenta-
tor, we live in a ―world where common and statutory law are wo-
ven together in a complex fabric.‖ David L. Shapiro, Continuity
and Change in Statutory Interpretation, 67 N.Y.U. L. Rev. 921, 937
(1992). When courts fill interstices in statutory law in a manner the
legislature disapproves of, the legislature can amend the statute to
direct a different outcome in future cases. See, e.g., Gressman v.
State [forthcoming] (noting that in response to the district court‘s
holding, the legislature amended the Post-Conviction Remedies
Act to clarify that claims expire on the claimant‘s death). Similar-
ly, the legislature can overrule or preempt common law doctrines
by statute. See, e.g., Bishop v. GenTec Inc., 2002 UT 36, ¶ 12, 48 P.3d
218 (holding that the Liability Reform Act preempted in part the
common law doctrine of respondeat superior). Although courts
cannot overrule statutory law on the basis of policy, they are re-
sponsible for determining the constitutionality of challenged stat-
utes. See, e.g., Gallivan v. Walker, 2002 UT 89, ¶¶ 64, 83, 54 P.3d
1069 (holding that the multi-county signature requirement for ini-
tiatives violated the uniform operation of laws clause and the fed-
eral equal protection clause). Additionally, courts can call the at-

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 CITE AS: 2013 UT 46
JUSTICE DURHAM, dissenting

tention of the legislature to statutes in need of clarification or
modernization. See, e.g., McArthur v. State Farm Mut. Auto. Ins. Co.,
2012 UT 22, ¶¶ 40–47, 274 P.3d 981 (Durham, J., concurring) (urg-
ing the legislature to revisit the uninsured motorist statute).1
¶36 Given the dynamic nature of the state law-making process,
we assume, absent a contrary indication, that the legislature in-
tends its statutes to work in tandem with our case law, and we
reconcile the common law with statutory law whenever possible.
See Olseth v. Larson, 2007 UT 29, ¶ 39, 158 P.3d 532 (―We presume
the Legislature is aware of our case law . . . .‖); see also Bishop, 2002
UT 36, ¶ 10 (―[T]he common law must necessarily give way‖ to
statutory law only when the two are ―in conflict‖ or when the leg-
islature intended to preempt the common law.). Conflict preemp-
tion occurs only ―where it is impossible . . . to comply with both
[the common law] and [statutory] requirements, or where [the
common law] stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of [the legislature].‖
Navajo Nation v. State (In re Adoption of A.B.), 2010 UT 55, ¶ 33, 245
P.3d 711 (first alteration in original) (internal quotation marks
omitted).
¶37 When the legislature enacted the Probate Code thirty-eight
years ago, 1975 Utah Laws 579–715, it included the following sec-
tion, which has not been amended: ―Unless displaced by the par-
ticular provisions of this code, the principles of law and equity
supplement its provisions,‖ UTAH CODE § 75-1-103. The legislature
instructed the judiciary not to infer preemption just because the
legislature had spoken on a subject. Rather, courts are to find
preemption only where the Probate Code directly ―displace[s]‖ a
common law doctrine. At the time the Code was enacted with this
presumption against preemption, equitable adoption had been the
law in Utah for fifteen years. In re Williams’ Estates, 348 P.2d 683
(Utah 1960). Yet nothing in the original Probate Code or its subse-
quent amendments either addresses or conflicts with equitable
adoption.

1 Evidentiary and procedural rule-making is another arena
where the courts and the legislature interact, with the supreme
court having primary authority and the legislature the power to
amend rules. See UTAH CONST. art. 8, § 4.

17
 IN RE ESTATE OF WILLIAM J. HANNIFIN
JUSTICE DURHAM, dissenting

I. THE PROBATE CODE‘S DEFINITIONS OF ―CHILD‖
AND ―PARENT‖ DO NOT UNDERMINE THE
DOCTRINE OF EQUITABLE ADOPTION
¶38 The majority seems to recognize that equitable adoption
was valid as a common law doctrine before the Code was enacted.
See supra ¶¶ 17, 24. In the majority‘s view, equitable adoption and
the previous probate code could coexist because the previous
probate code did not define the terms ―child‖ or ―parent.‖2 The
majority holds that the Uniform Probate Code‘s definitions of
―child‖ and ―parent,‖ quoted above in paragraph 19, are preemp-
tive. See supra ¶¶ 19–21.
¶39 Contrary to the majority‘s view, these definitions are not
preemptive because the doctrine of equitable adoption is not
premised on our ability to judicially define the statutory term
―child‖ or ―parent.‖ The version of the probate code in effect
when Williams’ Estates was decided provided for intestate succes-
sion by a decedent‘s ―child‖ or ―issue.‖ UTAH CODE § 74-4-5(1)–(2)
(1953). We did not reach our holding in Williams’ Estates by judi-
cially defining these statutory terms, as the majority suggests. See
supra ¶ 20. Instead, we exercised our equitable power to hold that,
even though the claimant was not a ―child‖ or ―issue‖ under the
statute, justice required awarding her the same inheritance she
would have received if she had been adopted. See In re Williams’
Estates, 348 P.2d 683, 684 (Utah 1960). Nothing in the Uniform
Probate Code definitions changes our ability to do that.3 Equitable
adoption has always operated in parallel with the probate code,
providing a non-statutory, equitable right to inherit as if the
claimant were the child of the decedent. See id.

2 The majority refers to the previous version of the probate code
as an ―open-ended system.‖ Supra ¶ 17. This characterization is
surely exaggerated. The probate code in effect when Williams’ Es-
tates was decided addressed intestate succession in as much detail
as the Code provisions quoted in paragraph 18. Compare UTAH
CODE § 75-2-103 (2013) with UTAH CODE § 74-4-5 (1953).
3 Even if equitable adoption were a judicial method of interpret-
ing the statutory term ―child,‖ it would be difficult to find
preemptive intent in the Code‘s exclusion of foster children and
grandchildren because Williams’ Estates did not involve these cat-
egories of individuals.

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 CITE AS: 2013 UT 46
JUSTICE DURHAM, dissenting

¶40 The majority further holds that equitable adoption conflicts
with the Probate Code because it leads to a different distribution
of estate assets than the intestacy provisions would otherwise dic-
tate. Supra ¶ 21. But supplemental legal and equitable principles—
explicitly invited by the legislature in Utah Code section 75-1-
103—almost always alter the outcomes of the cases to which they
are applied. Otherwise, there would be no reason to apply them.
Courts in Utah and other states that have adopted the Uniform
Probate Code have supplemented it in several outcome-
determinative ways. See Berneau v. Martino, 2009 UT 87, ¶ 10, 223
P.3d 1128 (allowing the equitable discovery rule to toll the three-
year statute of limitations required in the Probate Code); Morgan
v. Zion First Nat’l Bank (In re Estate of Pepper), 711 P.2d 261, 263
(Utah 1985) (holding that final closing orders in a probate pro-
ceeding can be vacated through a rule 60(b) motion, despite the
fact that section 75-3-1001 of the probate code ―discharges a per-
sonal representative from further claim or demand after a final
closing order has been entered‖); In re Estate of Butler, 444 So. 2d
477, 479 (Fla. Dist. Ct. App. 1984) (estopping the first wife of de-
cedent from asserting her inheritance rights as against the dece-
dent‘s second wife); In re Estate of Peter C., 488 A.2d 468, 470 (Me.
1985) (holding that the common law rule that a guardian is in a
fiduciary relationship to his ward was not abrogated by the adop-
tion of the Uniform Probate Code even though the code does not
shoulder guardians with fiduciary responsibilities); In re Estate of
Foster, 699 P.2d 638, 645 (N.M. Ct. App. 1985) (applying the equi-
table rule ―authoriz[ing] an award of attorney fees for services
rendered which confer a benefit upon the estate‖); In re Estate of
O’Keefe, 583 N.W.2d 138, 140 (S.D. 1998) (holding that the circuit
court had the equitable authority to partially disqualify a benefi-
ciary from inheriting from an estate because of his fraudulent
acts); see also In re Estate of Wagley, 760 P.2d 316, 319-20 (Utah 1988)
(holding that a claim of quantum meruit was appropriate in a
probate case because under section 103, ―principles of law and
equity supplement the provisions of the [Utah Uniform Probate
Code] unless displaced by particular provisions of the Code‖).
¶41 More specifically, several states that have enacted the Uni-
form Probate Code recognize equitable adoption. See, e.g., Calista
Corp. v. Mann, 564 P.2d 53, 61 & n.18 (Alaska 1977) (holding that
Alaska‘s version of Utah Code section 75-1-103 permitted the
court to recognize equitable adoption); In re Estate of Jenkins, 904
P.2d 1316, 1320 (Colo. 1995) (en banc) (acknowledging that the
state recognizes equitable adoption); Jolley v. Seamco Laboratories,

19
 IN RE ESTATE OF WILLIAM J. HANNIFIN
JUSTICE DURHAM, dissenting

Inc., 828 So. 2d 1050, 1051 (Fla. Dist. Ct. App. 2002) (same); Johnson
v. Johnson, 617 N.W.2d 97, 101 (N.D. 2000) (same). I am aware of
no case in which a litigant has argued or a court has held that eq-
uitable adoption is incompatible with the Uniform Probate Code.
¶42 Because the doctrine of equitable inheritance has never re-
lied on the absence of a definition of ―child‖ or ―parent‖ in the
probate code, and because equitable principles are almost always
outcome-determinative where applied, I would hold that the Uni-
form Probate Code‘s definitions of ―child‖ and ―parent‖ do not
conflict with the doctrine of equitable adoption.
II. THE PROBATE CODE‘S RULE THAT ADOPTED
CHILDREN CANNOT INHERIT FROM THEIR BIOLOGICAL
PARENTS IS IRRELEVANT TO THE DOCTRINE OF
EQUITABLE ADOPTION
¶43 The majority also finds preemption based on the Probate
Code‘s rule that ―for purposes of intestate succession . . . [a]n
adopted individual is the child of the adopting parent . . . and not
of the natural parents.‖ UTAH CODE § 75-2-114(1)-(2); see supra ¶¶
22–27. The majority correctly states that claimants who inherit
under the doctrine of equitable adoption could also inherit from
their biological parents because ―the doctrine of equitable adop-
tion . . . is purely beneficial to the child and in no way alters the
legal relationship between the claimant and the decedent or be-
tween the claimant and the biological parents.‖ Supra ¶ 22; see
Tracy Bateman Farrell, Annotation, Modern Status of Law as to Eq-
uitable Adoption or Adoption by Estoppel, 122 A.L.R.5th 205, § 2[a]
(2004). I agree with this assessment. But the necessary implication
of the ―purely beneficial‖ nature of equitable adoption is that
Utah Code section 75-2-114(2) is irrelevant to our preemption in-
quiry. In a case of equitable adoption, there is no ―adopted per-
son‖ and no ―adopting parent.‖
¶44 The majority seems to have derived its own version of a
fairness principle from this Code section that would prevent indi-
viduals from inheriting both from their biological parents and
from other adults who perform parental duties. However, the in-
testacy statutes allow individuals to inherit from a wide range of
relatives. The Probate Code does not contain a one-person-one-
inheritance rule. Section 75-2-114 simply clarifies the effect of a

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JUSTICE DURHAM, dissenting

statutory adoption—which has no relation to the inaptly named
doctrine of equitable adoption4—on intestate succession.
III. THE STATED OBJECTIVES OF THE PROBATE CODE
ARE NOT IN CONFLICT WITH THE DOCTRINE OF
EQUITABLE ADOPTION
¶45 I disagree with the majority‘s emphatic conclusion that eq-
uitable adoption frustrates the following ―underlying purposes
and policies‖ of the Probate Code:
(a) To simplify and clarify the law concerning the affairs of
decedents, missing persons, protected persons, minors, and
incapacitated persons;
(b) To discover and make effective the intent of a decedent
in distribution of his property;
(c) To promote a speedy and efficient system for adminis-
tering the estate of the decedent and making distribution to
his successors; . . .
(e) To make uniform the law among the various jurisdic-
tions.
UTAH CODE § 75-1-102(2).
¶46 The majority‘s strongest point is that equitable inheritance
adds uncertainty to the determination of an intestate decedent‘s
heirs, in frustration of objective (a). A claim of equitable adoption
does indeed require a court to consider evidence for and against
the claim. But any of the legal and equitable principles with which
the legislature has invited courts to supplement the Probate Code
could be viewed as adding ―uncertainty, complexity, and ineffi-
ciency.‖ See supra ¶ 29. The legislature evidently is willing to tol-
erate a degree of complication in furtherance of a just and equita-
ble outcome.5

4 The presence of the word ―adoption‖ in the phrase ―equitable
adoption‖ falsely suggests a relationship between this doctrine
and statutory adoption. I prefer the term ―equitable inheritance‖
because it is more descriptive of the specific relief that ought to be
available to claimants in limited circumstances and does not sug-
gest itself as a basis for other rights and duties associated with
adoption.
5 As a side note, I do not share the majority‘s general skepticism
of state common-law development. See supra ¶¶ 30–31. Incremen-

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 IN RE ESTATE OF WILLIAM J. HANNIFIN
JUSTICE DURHAM, dissenting

¶47 The remaining objectives could be furthered or hindered by
equitable adoption, depending on the circumstances of individual
cases. As to objective (b), the majority notes that the ―presumptive
preference‖ of a decedent who dies intestate is for assets to be dis-
tributed according to the Probate Code. Supra ¶ 31. However, a
decedent could also rely on the common law doctrine of equitable
adoption found in Williams’ Estates, which has been binding law
in Utah for over fifty years. Furthermore, in a case like the present
one, a decedent would likely have preferred to leave his estate to
an individual whom the decedent raised as his own child rather
than to distant relatives with whom he might not have had any
personal relationship.
¶48 As to objective (c), equitable adoption will likely prolong
many but not all estate proceedings in which it is claimed. In this
case, if the viability of the doctrine had not been challenged, it
may have been speedier and more efficient to award the entire es-
tate to Mr. Nakai than to trace the decedent‘s bloodlines to distant
relatives, painstakingly calculate each relative‘s share, and dis-
tribute the estate (including personal and real property) among
nineteen individuals.
¶49 Regarding objective (e), the goal of uniformity would be
furthered slightly more by retaining the doctrine of equitable
adoption than by overruling it. Approximately half of the states
recognize equitable adoption, but of the state courts to have di-
rectly considered the doctrine, significantly more than half have
adopted it. See Tracy Bateman Farrell, Annotation, Modern Status
of Law as to Equitable Adoption or Adoption by Estoppel, 122 A.L.R.5th
205 (2004). This trend suggests that equitable adoption will con-
tinue to grow in acceptance.
¶50 Equitable adoption does not categorically frustrate the
purposes of the Probate Code. Neither these stated objectives nor
the other Code provisions analyzed above provide a basis for
overruling the doctrine. Because no ―particular provisions‖ of the
Probate Code have ―displaced‖ equitable adoption, see UTAH
CODE § 75-1-103, I would allow the doctrine to continue to coexist
with statutory law, as it has done for over fifty years. Given the
majority‘s foreclosure of this outcome, however, I would encour-

tal change through resolution of the questions posed by individu-
al cases is the sine qua non of the common law. See Judith S. Kaye,
State Courts at the Dawn of a New Century, 70 N.Y.U. L. Rev. 1, 5
(1995).

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JUSTICE DURHAM, dissenting

age the legislature to consider the policy arguments in favor of its
specific inclusion in the Code.
——————

23