Decedent Thomas E. Brown, Jr. ["Tom"] died on November 13, 2018, at the age of 63. Tom was never married and he was survived by his son Lucas Hallick ["Lucas"] and his daughter Shannon Guerin ["Shannon"]^[FN1] . Letters of Administration issued to Lucas on January 17, 2019.

Pending now before me is a petition for judicial settlement of Lucas's final account. Jurisdiction has been obtained over all necessary parties, and Thomas D. Migliaccio, Esq. was appointed guardian ad litem ["GAL"] for possible unknown heirs.

In cases such as this, where there is a non-marital child, issues concerning kinship generally and class-closing arise.

On consent of the parties, a kinship hearing was held on December 6, 2021, before a Court Attorney appointed by me on a hear and report basis. The parties waived the filing of a written report and consented that I might decide the issues based upon the testimony and [*2]documents produced at the hearing and stipulated into evidence (see SCPA 506[6][c]).

I now find and decide as follows.

Pursuant to EPTL 4-1.2, the right of non-marital children to inherit from their birth fathers depends on proof of paternity by one of four methods: (1) an order of filiation by a court of competent jurisdiction during the lifetime of the father; (2) an acknowledgment of paternity executed by the parents of the child pursuant to Public Health Law §4135-b and filed in the district in which the birth certificate is filed; (3) a signed instrument, acknowledging paternity by the father in a manner required to record a deed; or (4) by clear and convincing evidence, which may include, but is not limited to, evidence derived from a genetic marker test, or evidence that the father openly and notoriously acknowledged the child as his own.

A claimant has the burden of proving kinship (see, e.g., Matter of Flavin, 15 Misc 3d 1104A [2007]), and she or he must establish that she or he is the decedent's closest blood relative as defined in EPTL 4-1.1 (see, Matter of Dinzey, NYLJ, June 9, 2003, at 33, col 4). This burden is met by a preponderance of the evidence (see, Matter of Paul, 2017 NY Misc LEXIS 674, 2017 NY Slip Op 30355U [dec. Feb. 17, 2017]; see also, Matter of Whelan, 93 AD2d 891 [1983]). For kinship to be established to the satisfaction of the Court, a claimant must make an evidentiary showing (1) how she or he is related to the decedent, and (2) that no other persons of the same or a nearer degree of relationship survived the decedent. Upon proof that no heirs other than those before the Court exist, the class of heirs may be "closed" (see e.g., Matter of Alao, NYLJ, March 19, 2002, at 20, col 5).

Testimony was presented at the hearing by Lucas, Lucas's mother Judy Hallick ["Judy"], decedent's brothers Raymond Brown ["Ray"] and Peter Brown ["Peter"], and decedent's friend Paul Steger ["Paul"].

Judy testified that she had known Tom since he was thirteen years old. She and Tom, as well as Ray, Peter and Paul, were childhood friends. Judy and her friends were known as the "Armor Girls", and Tom and his group of friends were known as the "Big Tree Boys", based on the neighborhoods where they resided in Orchard Park, New York.

After graduating from high school in 1972, Judy and Tom lived together with her sister and her husband. Judy testified that she and Tom would often break up, but, when she became pregnant, they decided that they would keep their child, and, on XXXX XX, 1975, Lucas was born ^[FN2] . Immediately after Lucas's birth, Tom's paternity was established by the Erie County Family Court.^[FN3]

Judy testified that, after Lucas's birth, Lucas did not have any relationship with Tom until one day, when Lucas was in third grade and he was at a park, and Lucas seemed to recognize Tom as his father. Judy and Tom talked and then decided that they would tell Lucas that Tom was his father, after which father and son established a close relationship. Judy testified that Tom would take Lucas all the time, and that Tom wanted Lucas to have a relationship with his younger child, Shannon, and that he "wanted them to be a happy family".

Lucas testified that he first met his father when he was eight years old. Lucas would spend every other weekend with Tom and his younger sister Shannon, until he was 18 years of age, after which he began to see his father more frequently. Lucas testified that he and Tom would hunt and fish together and attend NASCAR races. Tom owned property in Forestville, New York, and he would host large gatherings of family and friends that Lucas would be a part of. Tom, Lucas, and Shannon attend the NASCAR races at Watkins Glen as a family for approximately fourteen years in a row. Tom always acknowledged Lucas and Shannon as his children, and there were never any other children who were known to be children of Tom's or siblings of Lucas and Shannon. Lucas testified that his and Shannon's children identify Tom as their grandfather.

Ray, Tom's brother, testified that there were four brothers and two sisters in their family and that he and Tom shared a bedroom in the family home in Orchard Park, New York. Ray served in the military from 1974-1977, and, during that time, he learned during a phone call with his father that Tom had become a father. When Ray returned from the military, he met Tom's son Lucas. At that time, Tom was living with his girlfriend, Cheryl Wolfley, with whom he had a daughter, Shannon. Ray testified that Tom always acknowledged Lucas and Shannon as his children, and that Tom had no children other than Lucas and Shannon. Ray was certain that that if Tom had had any other children, he would have known about them.

Tom's older brother Peter also testified that he and Tom were very close. They lived together for several years and worked together at the local Ford plant for twenty years. Peter testified that he spoke to Tom every day, and that they were part of the "Big Tree Boys" friend group which continues to this day. Peter knew that Tom and Judy had a child, Lucas, and that Tom had a second child, Shannon, with his girlfriend Cheryl. Peter testified that there was never any question that Lucas and Shannon were Tom's only children, and they were included in all family events and gatherings.

Tom's best friend, Paul, testified and confirmed the prior testimony of Judy, Ray, and Peter. Paul met Tom in 1960 and knew Tom "all my life". Paul was a member of the "Big Tree Boys", and he and Tom and their friends would hunt, fish, play sports, and spent almost every day together. Paul's wife lived with Judy and Tom when they were young. Paul lived in Denver, Colorado from 1980-1987, and prior to leaving he knew Tom had a son named Lucas. When he returned to Western New York, he learned Tom also had a daughter, Shannon. Tom and his two children were at all the group parties, and Paul is confident that Tom had no other children and that he would have known if he did. Tom told Paul that he wanted Lucas to get his property in Forestville, and Shannon to get his house when he died.

In evidence is Judy's petition for paternity, dated July 8, 1976, and an Order of Filiation and Support issued on April 17, 1977, by Hon. John J. Honan, Erie County Family Court Judge, [*3]establishing Thomas Brown Jr. as Lucas's father. Also in evidence is a Petition for Paternity, filed by Cheryl Wolfley, dated July 22, 1994, and an Order of Filiation and Support issued on August 19, 1994, by John J. Aman, Erie County Family Court Hearing Examiner, establishing Thomas Brown Jr. as Shannon's father. Searches conducted by the New York State Putative Father Registry and Erie County Family Court show no children of Tom's other than Lucas and Shannon.

I find that all reasonable efforts have been made to ascertain the existence of any other possible children (SCPA 2225[b]) but no other such children have been identified.

The GAL has submitted his report and recommendation, and he recommends (1) that Tom's only distributees are his two children, Lucas and Shannon, and (2) that the class of issue has been closed.

I conclude that Tom was never married, that he had two non-marital children, Lucas Hallick and Shannon Querin f/k/a Shannon Wolfley, that the class of issue is closed, and that Lucas and Shannon are entitled to Tom's net estate in equal shares [50% and 50%] after the payment of creditor claims and administrative expenses.

I further find that the GAL's fee application for $1,512.50 is fair and reasonable under all the circumstances. No objections have been received to that fee, which is approved and shall be paid within 20 days of this decision.

This decision shall constitute the Order of this Court and no other or further order shall be required.