Skip to content

Class gifts versus specific gifts.

10 March 2010, 6:51 pm

The difference between a class devise and a specific devise is the way the gift is treated if one of the beneficiaries dies before the testator. When a member of the class predeceases the testator, his share lapses in favor of the surviving class members. If the devise is not a class gift but a specific gift and one of the beneficiaries predeceases the testator, his gift does not lapse but is passed on to his heirs.

A devise constitutes a class gift when it grants property to a group of persons bearing a certain relationship to the testator or to each other. The persons included in the group satisfy this requirement when they can be designated by the same general name such as children, nephews, brothers or sisters. Such a gift must be to a class uncertain in number at the time of the gift. This requirement of uncertainty can be satisfied by the possibility that the number in the class may increase or decrease in the future. A devise to specific persons such as “my sisters, Jane and Joan” is not a class gift but a specific gift to individuals.

An example of a class gift: the Testator devises his property to “my sisters.” He has five sisters but two of them predecease him. The two who predecease him have children. The testator’s estate is divided into three parts and given to the three surviving sisters. The children of the two sisters who predeceased the testator get nothing.

An example of a specific gift: the Testator devises his property to his five sisters by name. Two sisters who have children predecease the testator. The estate is divided into five parts with the children of the two deceased sisters getting their parents share.

Pearls of wisdom: In order to avoid a class gift, name the persons who you want to inherit your estate. Don’t use terms such as “children,” “grandchildren,” “brothers,” nieces,” etc. unless you have specifically named them.

Filed under Inheritance. Tagged 
Comment

Proving a lost will was not revoked

9 March 2010, 4:47 pm

I have discussed in another article the procedure for probating a lost will. To review the article, click here.

One of the problems that you have when proving a lost will is that there is a presumption that the will has been revoked. One of the methods by which a will can be revoked is by destroying the original copy of the will. The evidence at trial established the original will was in the deceased’s possession and could not be located after his death. When a will was last known to be in the decedent’s possession and cannot be located after death, a rebuttable presumption of revocation arises. In order to overcome that presumption, the proponent of the will must prove that the testator continued to have affection for the chief beneficiary of the lost will. If the continued affection is proven and there is no evidence to show the decedent was dissatisfaction with the will or had any desire to cancel or change the will, the proof is sufficient for the court to admit the lost will to probate. This assumes of course that the requirements of proving the contents of the lost will have been met.

A Texas appeals court recently had to decide whether the proponent of a lost will had overcome the presumption that the lost will had been revoked. When the proponent offered the lost will for probate, she offered her affidavit that said “…as far as I know and believe, decedent left a will dated August 25, 2004 and never revoked it.” The trial court admitted the will to probate. A son from a prior marriage appealed and the appeals court reversed the case and sent it back to the trial court. The appeals court said that the proponent did not offer any evidence of the testators continued affection for the chief beneficiary.The court said that the statement “… as far as I know and believe…” was insufficient to prove that the will had not been revoked. The affidavit does not positively and unequivocally represent the facts as disclosed in the affidavit to be true and within the affiant’s personal knowledge and are therefore legally insufficient. The appeals court sent the case back to the trial court for additional evidence on this issue

Pearls of wisdom: If you’re going to file a lost will for probate, you not only have to prove the contents of the lost will but you also have to prove that the will was not revoked.

Filed under Contesting wills, Probate. Tagged 
Comment

Must the testator sign a will before the witnesses?

7 March 2010, 11:46 am

To see a discussion of the requirements of executing a will, click here.

What happens if the witnesses sign the will before the testator? Do the witnesses have to sign the will after the testator? As long as the execution of the will is done in one transactions, it doesn’t make any difference whether the testator or the witnesses sign first.

In a court case on the issue of who signs first, a chiropractor asked her secretary to type up a will for her. Later, two other employees of the chiropractor signed the will as witnesses. The will was then taken into the chiropractor who signed it. The notary then gathered the testator and the witnesses in a room and notarized the will. These transaction all occurred before noon.

The will disinherited the chiropractor’s children. When the chiropractor died, the children contested the will. They said that the will was void because the witnesses had signed the will before the testator. The trial court agreed. However, on appeal, the appeals court reversed. The appeals court held that as long as the signing of the will was done substantially contemporaneously with the execution, it was not a problem that the witnesses signed before the testator. As long as the signatures occurred at the same time and place and formed parts of the same transaction, the will could be valid even though the witnesses signed before the testator.

Pearls of wisdom: When you execute your will, make sure that it is done properly. The best way to insure that it is executed properly is to have an attorney prepare your will and supervise its execution.

Filed under Contesting wills, Procedure. Tagged 
Comment

A gift deed has to be delivered to be valid.

7 March 2010, 10:20 am

To be effective, a deed has to be delivered. Just as the deed must be signed to be effective, it must also be delivered. This is true whether the deed is one of purchase or of gift. The essential elements of delivery are: 1. The grantors relinquishment of control over the deed to the grantee or a third-party; and, 2. With contemporaneous intent that the deed is to take effect as a conveyance. (The grantor is the person who sells or gives the property away and the grantee is the person who buys or receives the property.) The test is whether or not the grantor parted with all dominion and control over the instrument at the time he delivered it with the intent at the very time of delivery that it take effect as a conveyance. No particular form of words or action is required to constitute delivery, and delivery is often said to turn on the grantor’s intent as determined by examining all of the facts and circumstances preceding, attending, and following the execution of the instrument.

A very old case in Texas illustrates the question of delivery. In 1927, a man executed deeds to his two daughters. He kept the deeds in his bank box and continue to exercise dominion and control over the land. In 1931, he retrieved the deeds from his bank box and went to see one of his daughters with the “… avowed purpose of delivering the deeds to her to be recorded.” After the man arrived at his daughter’s house, he  retired for the night. The next morning he was found dead. His daughter found the deeds in his suitcase and recorded them. The administrix of the man’s estate filed suit against the two daughters seeking to set the deeds aside. The administratrix claimed that there was no delivery of the deeds. The court ruled that the deeds were void because there had not been a delivery. The court held that the man had an intention to deliver the deeds but had never actually delivered them. Therefore, they were never effective to transfer the land to his daughters.

Pearls of wisdom. A deed not only has to be executed but it has to be delivered in order to be effective. A person wishing to convey property needs to execute the deed and get it filed of record or give it to the grantee in order to effectively transfer the property. If a person executes a deed and then puts it in a drawer with the intention to give it to the grantee later and he never gets around to delivering the deed before he dies, the person who he wants to have the property may not receive it.

Filed under Inheritance, Property. Tagged 
Comment

Who gets the money if a man names his ex-wife as beneficiary in a life insurance policy?

6 March 2010, 4:14 pm

A husband and wife of 25 years filed for divorce. The husband agreed to pay alimony until 2001. He also agreed that he would obtain an insurance policy and name his ex-wife as beneficiary “to a portion of the proceeds on such policy in a face amount sufficient to pay the then remaining alimony payments…”  After the divorce, the husband bought a $250,000.00 policy and named his ex-wife as the beneficiary. Several years later, husband remarried. He contacted the insurance company about changing the beneficiary on the policy and limiting his ex-wife’s part to what was due under the alimony agreement. The insurance company sent him a change of beneficiary form but he never filled it out.

Later, in his divorce from his second wife, husband wrote a letter to his divorce attorney outlinning what he wanted to keep in the divorce. He mentioned three insurance policies: the $250,000.00 policy mentioned above and two policies for $100,000.00 each. He said that one of the $100,000.00 policies was “…required to be used as collateral in my payment to…” first ex-wife based on the alimony agreement in their divorce.

Husband died in 2002. When he died, the first ex-wife and his children filed competing claims for the $250,000.00 policy. The children argued that the first ex-wife was a creditor beneficiary and should only recover an amount not to exceed the debt (the alimony.) Since the alimony was fully paid by husband and had ended in 2001, they argued that the first ex-wife was not entitled to any part of the policy. The ex-wife said that she was named the beneficiary without limitations and she should receive the full $250,000.00.

The trial court agreed with the children and awarded them the proceeds from the policy. The wife appealed. The appeals court agreed with the wife and reversed the trial court. The appeals court said that the husband did not limit the ex-wife’s recovery to the amount owed for alimony nor did he mention the divorce settlement in the beneficiary designation of the policy. The appeals court also noted that husband did not change the beneficiary when he was sent the change of beneficiary form by the insurance company. They awarded all of the policy to ex-wife and none to the children.

PEARLS OF WISDOM: This case points out the necessity of making sure that any policy of life insurance is set up exactly the way you want it so that the proper beneficiary gets the proceeds of the policy. Don’t think that you have it set up the way you want it, make sure that you have it set up the way you want it. 252/663.

Filed under Children, Inheritance, Spouse. Tagged , , ,
Comment

Can you appeal a family settlement agreement in a probate case?

27 February 2010, 11:01 am

Not if you accepted benefits under the agreement. I have discussed the situation where a person who entered into a family settlement agreement but became dissatisfied before the judge signed the order, lost her right to appeal. To view the discussion, click here.

Filed under Probate, Procedure. Tagged 
Comment

Can there be a parol (oral) gift of real estate?

26 February 2010, 5:20 pm

Normally, a conveyance of real property has to be in writing. However, a gift of realty can be made in two ways: either by deed or by parol (oral) gift. To relieve a parol gift of real estate from the requirement of a writing, one must show three elements: (1) a gift in praesenti, that is, a present gift; (2) possession under the gift by the donee with the donor’s consent; and (3) permanent and valuable improvements, made on the property by the donee with the donor’s knowledge or consent or, without improvements, the existence of such facts as would make it a fraud upon the donee not to enforce the gift. To be a present gift, the donor must, at the time he makes it, intend an immediate divestiture of the rights of ownership out of himself and a consequent immediate vesting of such rights in the donee. The three elements which constitute a gift are (1) donative intent, (2) delivery of the property, and (3) acceptance of the property. All dominion and control over the property must be released by the owner. The party claiming a parol gift has the burden of establishing these elements.

The Houston court of appeals has ruled that there was a parol gift of land when one brother gave another brother a document that said that – I give my brother all of my interest in our parents estate – followed by the brother living on the land in question for many years exclusively.

The parties contesting the alleged parol gift also argued that, even if it is a parol gift, it must fail because the document lacks a sufficiently specific description of the property conveyed, citing Republic National Bank of Dallas v. Stetson, 390 S.W.2d 257 (Tex. 1965). In that case, the Texas Supreme Court stated the general rule that “the description in a written conveyance must furnish within itself or by reference to some other existing writing, the means or data by which the particular land conveyed can be identified.” Id. at 262-63. Concluding that an alleged parol gift of undescribed land to Stetson was void, the Court went on to state: “We can think of no reason that the description of land which is the subject of a parol gift should not be governed by the settled rule for written conveyances. Indeed the dangers which the statutes sought to guard against are greater in the case of oral conveyances.”

The Houston court went on to distinguish the present case from the Supreme Court case holding that the description was sufficient to properly identify the land. The court said “Here, as evidenced by the writing and the other evidence discussed above, Rudy made a parol gift of his interest in his father’s estate to Karl. There is no dispute that Rudy, Karl, and Charlotte each inherited an undivided 1/3 interest in the real property at issue from their father. Nor is there any dispute about the description, location or boundaries of this real property. Therefore, the Texas Supreme Court’s stated policy and reasoning against parol conveyances of land do not pose a stumbling block in this case.” No. 14-06-00787-CV.

This case makes clear that proving a parol gift of land is difficult. Although the parties succeeded in this case, this case is the exception rather than the rule.

Filed under Probate, Property. Tagged 
Comment

Probating a lost will

17 February 2010, 9:33 am

Sometimes after a person dies, a will cannot be found. If there was a will but it just cannot be found, a “lost will” can be probated. For a discussion of the requirements of proving a loss will, click here.

In a case involving a lost will, the Houston Court of Appeals held that a lost will was not proven. In that case, the lost will was allegedly made a few days before the testators died. It left everything to the proponent of the lost will. The proponent said that he had given the will to Davis to keep. Davis testified that she was given a piece of paper, the top part of a greeting card, and that she remembered that it had some words indicating that it was a a will. It also had some signatures on it. She also remembered that it gave the testator’s house and some other property to the proponent. The proponent testified that the testator asked him to type his will, that he typed it and that it was three pages long. He further testified that the testator signed the will in front of witnesses who also signed the will. At the testator’s direction, he gave the executed will to Davis to keep. In refusing to admit the alleged lost will to probate, the court said:

“Davis did not identify the copy of the alleged will produced at trial to be the same document that Cole had given her. Furthermore, the document that Cole produced at trial was typewritten, three pages long, and dated July 16, 2004, whereas the document described by Davis was given to her on May 5, 2004, and was handwritten on a single page torn from a greeting card. Therefore, because Cole failed to present evidence that Davis had possession of the alleged lost will, he did not prove the cause of the will’s non-production as a matter of law…”

So in this case, the proponent did not prove that the will had never been revoked nor did he prove, to the satisfaction of the court, the reason for not producing the original will. If you have a situation where you are sure there was a will but it cannot be found, you can still probate the lost will if you meet the requirements. To insure that everything is handled correctly, you need to contact an attorney as soon as possible and let him advise you on what to do.

Filed under Probate, Procedure. Tagged ,
Comment

What evidence proves an “insane delusion?”

16 February 2010, 12:01 pm

The testator said in his will that he did not have any children. A woman claiming to be his daughter contested the will saying that the testator was operating under an insane delusion. The Austin appeals court ruled that the woman did not raise a fact issue and upheld summary judgment against her. The court said that proving that the testator was married to her mother in 1927, that she was born a year later and that the testator and her mother were divorced one and one-half years after her birth, did not raise a fact issue on the question of the testator having an insane delusion that he had no children.

A full discussion of insane delusion relating to wills is here.

The court explained its decision by stating “(n)othing in this proof raises a fact issue as to whether Hempel’s failure to include Carroll in his wills “was due to some organic defect in the brain or some functional disorder of the mind” or could not have been entertained by a rational person under the circumstances. Even if Carroll had raised a fact issue regarding whether she was Hempel’s child—on which we express no opinion—her proof, if anything, would be at least equally consistent with the inference that Hempel’s unwillingness to include her in his wills stemmed from a conscious, rational, and consistently-expressed desire not to reopen the long-closed chapter of his life involving Ms. Chanek.”

The 1929 divorce decree did say that there were no children of the marriage. There is a presumption that a child born during the marriage is the child of the husband and I’m sure that that presumption was around in 1929 but the Austin court apparently held that the decree trumps any presumption.

Filed under Contesting wills, Probate. Tagged ,
Comment

Is the economy causing more contested probate cases?

13 February 2010, 1:04 pm
There have been several artilces about the economy causing more contested probate cases. Here’s one and here’s another.
I disagree that the recession is causing more cases. I have long thought that it is the changing make-up of the family that causes families to fight over family assets. In the past, mom would marry dad. They would have children. They would die and the children, all brothers and sisters, would settle the estates with very little arguing.
Today, that situation is the exception rather than the rule. Now, mom marries dad. They have children. They get divorced. Dad remarries and has children with the new wife. Mom remarries a man who has children by another woman. Instead of brothers and sisters settling the estates, it is brothers, step brothers, half sisters and ex-spouses. Today’s family doesn’t have that blood bond that they had in the past. Their loyalties may go in many different directions.
Many times, a person doesn’t want to make a will because he or she has these extended families and doesn’t want to hurt anyone’s feelings. They may be closer to a step child than they are to their own children. The effect of not making a will is to hurt everyone’s feelings. When there is no will, there can be a free-for-all battle over the estate. Everyone involved can end up hating everyone else.
Just as only grandma or grandpa can get the family to together for thanksgiving, they are the only ones who can hold the family together after their deaths by having a will so there will be no fighting. While there can still be a fight over assets if there is a will, a fight is almost guaranteed if there is no will.
We don’t prepare wills so this is not a plea to come in and hire us to make you a will. Rather, it is a plea to make less work for me by avoiding a contested probate case by making a will and keeping it up to date.

There have been several artilces about the economy causing more contested probate cases. Here’s one and here’s another.

I disagree that the recession is causing more cases. I have long thought that it is the changing make-up of the family that causes families to fight over family assets. In the past, mom would marry dad. They would have children. They would die and the children, all brothers and sisters, would settle the estates with very little arguing.

Today, that situation is the exception rather than the rule. Now, mom marries dad. They have children. They get divorced. Dad remarries and has children with the new wife. Mom remarries a man who has children by another woman. Instead of brothers and sisters settling the estates, it is brothers, step brothers, half sisters and ex-spouses. Today’s family doesn’t have that blood bond that they had in the past. Their loyalties may go in many different directions.

Many times, a person doesn’t want to make a will because he or she has these extended families and doesn’t want to hurt anyone’s feelings. They may be closer to a step child than they are to their own children. The effect of not making a will is to hurt everyone’s feelings. When there is no will, there can be a free-for-all battle over the estate. Everyone involved can end up hating everyone else.

Just as only grandma or grandpa can get the family together for thanksgiving, they are the only ones who can hold the family together after their deaths by having a will so there will be no fighting. While there can still be a fight over assets if there is a will, a fight is almost guaranteed if there is no will. Trying to make  your own will leads to disasters in these situations. I think that it is rare for a person to try to make their own will without making mistakes. Since wills have to me made and executed within strict guidelines, you should always let an attorney handle the will preparation.

We don’t prepare wills so this is not a plea to come in and hire us to make you a will. Rather, it is a plea to make less work for us by avoiding a contested probate case. Make a will and keep it up to date!

Filed under Contesting wills, Probate. Tagged 
Comment
« Older Entries