Joined by TAYLOR, C.J., COLBERT, V.C.J., WINCHESTER, J., dissenting:
1 I must respectfully dissent. The majority opinion authorizes a determination of paternity as a basis for intestate succession and inheritance, post-death, a position I cannot support.
*295{2 Appellant Powell, sought a share of Decedent's estate, as an omitted heir, under 84 O.S. 182, claiming he was born out of wedlock to a woman who gave him up for adoption, and Decedent was his biological father. Subsequent to the decedent's death, and with the aid of DNA testing performed on the Decedent's surviving brother, Archie Dicksion, appellant established his theory of paternity. Appellant sought a share of Decedent's estate as an omitted heir.
T3 Pursuant to the provisions of 84 O.S. 2001, 215, in order to establish his omitted-heir status, the appellant must successfully prove one of four methods.
14 84 O.S.2001, 215 provides in pertinent part:
For inheritance purposes, a child born out of wedlock stands ... in identical relation to his father ..., whenever; (a) the father, in writing, signed in the presence of a competent witness acknowledges himself to be the father of the child, (b) the father and mother intermarried subsequent to the child's birth, and the father, after such marriage, acknowledged the child as his own or adopted him into his family, (c) the father publicly acknowledged such child as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a child born in wedlock, or (d) the father was judicially determined to be such in a paternity proceeding before a court of competent jurisdiction.
T 5 In Matter of Estate of King, 1990 OK 138, ¶ 12, 837 P.2d 463, 467, in an opinion authored by Justice Hodges, we held:
Section 215 provides ... (4) there is a judicial determination of paternity before the death of the father ... (Emphasis added.)
T 6 In the present matter, Powell seeks to establish his right to inherit under the fourth method, specifically with the use of DNA testing, conducted after the death of his alleged father.
In In the Matter of the Estate of Gertrude Jo Geller, 1999 OK CIV APP 45, ¶¶ 11-17 and 24, 980 P.2d 665, 669-670, the Appellant, Holly White, sought to determine heirship by reason of a sexual encounter between her mother and Jay Myers, the son of the Gertrude Geller. Mr. Myers had predeceased his mother, Ms. Geller by some thirty-seven years. Ms. White sought to prove heirship by exhumation of her alleged father's body. The court stated with regard to Section 215(d):
As section 215(d) is phrased-"the father was judicially determined to be such in a paternity proceeding ..."-it does not appear to contemplate post-death genetic testing ..." (Emphasis original.)
I agree with this interpretation.
T7 The majority assert the Uniform Parentage Act, 10 O.S. Supp.2006, $ 7700-101 et seq., which became effective in 2006, now specifically applies to paternity determinations in probate matters. The majority states it is illogical to allow posthumous genetic DNA testing under the Uniform Parentage Act, but not to allow it in probate actions in which the statute expressly allows an individual to prove heirship via paternity proceedings. What is illogical is the concept that a father would not have the opportunity to be heard in paternity proceedings, notwithstanding technology has advanced to such levels as to establish his relationship to a child born out of wedlock with a high degree of certainty.
18 Our laws of succession allow him the opportunity to dispose of his assets in a knowing manner. See 84 0.8. 41. The right to make a will includes the right to make it according to the testators own desires, subject only to statutory restrictions. Ward v. Cook, 1931 OK 575, 3 P.2d 728, 152 Okl. 234. This was the intent of the legislature in stating "the father was judicially determined to be such in a paternity proceeding before a court of competent jurisdiction." (Emphasis original.) If the parent-child relationship had been established prior to his death, the father could make disposition of his estate with the knowledge of the relationship. Section 215 applies to "omitted children" a putative father, once determined by a court of competent jurisdiction to be the father, would have the opportunity to provide for this child or disinherit the child in accordance with 84 O.S. 132.
*296T9 The United States Supreme Court, in upholding the constitutionality of a New York statute which provided for a procedure during the lifetime of the father to make an order of filiation declaring paternity in a proceeding brought during the pregnancy of the mother or within two years from birth of the child,1 addressed a similar issue in Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978).
£10 The United States Supreme Court addressed the greatest concern how to achieve finality of a decree in any estate when there always exist the possibility, however remote, of a secret child born out of wedlock hidden in the buried past of a parent or an ancestor of a class of beneficiaries. Finality in a decree of distribution is essential, since title to real property passes under such decree.2 See; Lalli v. Lalli, supra.
{11 The provisions of § 215(d) provide a requirement designed to ensure the accurate resolution of claims of paternity and to minimize the potential for disruption of estate administration. Accuracy and finality in estate administration are enhanced by placing paternity disputes in a judicial forum during the lifetime of the father. Fraudulent assertions of paternity will be much less likely to succeed, or even to arise, where the proof is put before a court of law at a time when the putative father is available to respond, or to react to a judicial determination of paternity, rather than first brought to light when the distribution of the assets of an estate is hanging in the balance.
1 12 A post-death determination of paternity based upon scientific testing, although likely accurate, does not afford the father the basic opportunity to be heard or to change his testamentary plans after a court of competent jurisdiction has made a determination of paternity. A child's right to inherit should not outweigh an individual's right to dispose of their property as they feel appropriate.
1 13 To follow the majority's interpretation there would be little if any finality to the distribution of ones estate if, through the advances of science, one could assert heirship and entitlement for years or decades after the death of the putative father. How would a putative father disinherit all "unknown issue?" The basic principles of due process would allow a man who has been determined to be a father at a paternity proceeding to make a disposition of his estate in light of a court's decision.
€ 14 Without a determination of paternity, prior to the death of Valatus Merral Dicksion, Powell is not an heir and has no standing in the probate proceeding. A right to inherit property is granted solely by statute. Matter of Estate of Baxter, 1992 OK CIV APP 15, ¶ 17, 827 P.2d 184, 187. Succession to estates is strictly a matter of statutory regulation, which cannot be changed by courts. In Re Felgars's Estate, 1954 OK 193, ¶ 22, 272 P.2d 453, 456; Matter of Estate of Swartz, 1994 OK CIV APP 7, ¶ 3, 870 P.2d 179, 180.
1 15 I respectfully dissent.
. N.Y. Est., Powers & Trusts Law § 4-1.2 (McKinney 1967)
. 58 O.S.2001, 711.