Harbie v. Falk

Youssef Harbie, decedent, had two children at the time he executed his will in 1994. Youssef’s first child, Carlos Harbie (plaintiff), was from his prior marriage and was 20 years old and living in Venezuela. Youssef’s second child, Rita Harbie, was from his current marriage and was two years old. In the 1994 will, Youssef left 30 percent of his estate to his current wife, Catia Harbie, and half of the residuary estate to “my children.” The will stated that, should Catia predecease Youssef, her 30 percent share would “vest equally in my children.” The will then stated that Youssef had “only one child at the time of this Will, Rita Harbie.” The will went on to direct that if Rita should predecease Youssef, Rita’s share in the estate should pass to Rita’s children, or if Rita had no children, then “to my remaining children.” After Youssef’s death in 2002, Carlos petitioned for a share of Youssef’s estate as one of Youssef’s children. The estate (defendant) moved for summary judgment, arguing that Youssef had intended the references to “my children” to only include Rita and any afterborn children, not Carlos. The attorney who drafted Youssef’s will submitted an affidavit in support of the estate’s position in which he testified that (1) Youssef had never mentioned Carlos; (2) Youssef’s intent was to leave the majority of his estate to Rita; and (3) the references to “children” were included in the will at the attorney’s suggestion to ensure any future children born after the execution of the will would be able to inherit. Carlos did not submit an affidavit in opposition to the estate’s motion for summary judgment. The trial court granted the estate summary judgment, finding that the attorney’s affidavit resolved any ambiguity. Carlos appealed.