Son Disinherited Because of Felony Despite Expungement

FEBRUARY 17, 2003 VOLUME 10, NUMBER 33

When William Garland, Jr., wrote his will, he was concerned about his son Richard Garland. Because he thought Richard had engaged in some irresponsible behavior in his teens, Mr. Garland directed that Richard’s share of his estate would be held in trust. The terms of the trust directed that all income would be distributed to Richard, but that he would get none of the principal until he turned thirty.

In fact, Mr. Garland was concerned enough that he included another, unusual, provision: if Richard Garland was convicted of a felony before he turned thirty, according to Mr. Garland’s trust, Richard Garland’s share would pass to Mr. Garland’s two daughters. In other words, Richard Garland had it within his power to disinherit himself.

Sure enough, Richard Garland got in trouble again before he turned thirty. In 1993 he pled guilty to a drug charge, was put on probation for five years and ordered to pay a $1,000 fine. That may have been the shock he needed, however, as he did not get in trouble again for the next decade.

In the year 2000 Richard Garland took advantage of the state law allowing convicted felons in some cases to set aside their criminal records. He convinced a judge that he had been rehabilitated, and his record was expunged. As part of that process the judge even ordered that his prior criminal conviction should be sealed.

Richard Garland then sought to have the remaining trust principal distributed to him as if he had not been convicted of a felony. His sister objected, arguing that the fact that his conviction had been set aside did not mean it had not happened, and Richard Garland had no right to receive anything further from the trust.

The trial court judge agreed with Richard, ruling that the expunging of his record meant that the conviction never happened in the first place. Richard’s sister appealed the court’s order.

The Arkansas Supreme Court reversed the trial court’s determination and ordered the trust distributed between Richard’s sisters. According to the Supreme Court’s analysis, the minute Richard entered his guilty plea and was sentenced, he had been convicted of a felony. The fact that he had successfully moved to set aside the conviction did not mean that it had not happened, only that the record was wiped clean. Put another way—when Richard Garland pled guilty, the trust property became his sisters’ because the trust’s terms directed that result. Later developments could not revive his interest in the trust. Summers v. Garland, February 13, 2003.

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