1 February 2012, 10:07 am
The probate code provides that if you offer a will for probate in good faith and with just cause, you can recover your reasonable and necessary attorney’s fees even if you lose.
In a recent will contest, the proponent offered a 2003 will for probate. The contestants contested the 2003 will and offered an older will for probate. The jury found that the testator lacked testamentary capacity when he executed the 2003 will offered by the contestant. They also found that the contestant had incurred $600,000.00 in reasonable and necessary attorney’s fees but did not find that she offered the will in good faith and with just cause. The court held that the evidence supported the jury’s answer. The contestant then claimed that there was a conflict between the jury’s finding that the fees were reasonable and necessary and their finding that the contestant did not act in good faith and with just cause. The court said that contestant waived this issue because she did not make her objection about the conflict before the jury was discharged, which was required. No. 04-09-00777-CV
1 February 2012, 9:51 am
An appeals court recently had to decide if a jury’s verdict that the testator lacked testamentary capacity and their verdict that the testator was unduly influenced was so conflicting that the verdict had to be set aside. If a jury verdict has an irreconcilable conflict, the court is obligated to reverse the case.
In general, undue influence presumes that the testator has testamentary capacity. Ruling that there was no irreconcilable conflict, the court noted that the Supreme Court has recognized that a finding of undue influence implies the existence of a sound mind. However, no court has held that a finding of undue influence requires the existence of sound mind. In fact weakness of mind and body, whether produced by infirmities of age or by disease or otherwise, may be considered as a material circumstance in determining whether or not a person was in a condition to be susceptible to undue influence. The court stated that in order to be an irreconcilable conflict, one of the jury’s answers would require a verdict for the contestant and the other would require a verdict for the proponent. Since both of these findings by the jury would require a verdict for the contestant’s, there was no irreconcilable conflict. No. 04-09-00777-CV.
20 September 2011, 12:38 pm
No, says the Waco Court of Appeals. In a case decided in 2011, a testator had children from a prior marriage. He left a will leaving everything to his second wife. One of his children contested the will. During the contest, a family settlement agreement was reached. The contest was dropped and the will was admitted to probate. Several years later, the daughter found out that one of the wife’s children had forged the will with the help or knowledge of the wife. She filed suit to set aside the forged will.
In upholding the trial court’s dismissal of the suit, the Court of Appeals said that the suit was not filed within the time required by the statute of limitations and could not be brought even though the will was forged! This case is another clear message from the courts: if you have questions about a will, you better act promptly or you won’t be able to question the will even if it is forged. 10-09-00275-CV
16 July 2011, 10:38 am
The Texas Legislature has passed and the governor has signed House Bill 3674 which amends §132.001 of the Civil Practice and Remedies Code and states that an unsworn declaration “may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law.” The change goes into effect September 1, 2011. An example jurat is provided.
While Texas wills have never been required to be notarized, the self-proving affidavit has been. It appears that the new law may change that requirement since it specifically mentions affidavits but the cautious attorney will continue to notarize the self-proving affidavit.
14 June 2011, 1:19 pm
The Wall Street Journal ran an article on June 11, 2011 entitled “Unholy Matrimony: How to Fight Back” about the growing problem of marriage between an elderly patient and their money-seeking caregiver. These cases differ from the normal case where a caregiver gets the elderly person to change their will to benefit the caregiver because the family can contest the will on the basis that the elderly person didn’t have testamentary capacity or was being unduly influenced by the caregiver. In the “predatory marriage” cases however, the only person who can annul a marriage is one of the spouses. If the family doesn’t find out about the marriage until after death it is too late in many states for the family to take action. The laws of many states allow marriage property rights to take precedence over estate planning.
The Journal article details the problems that families face when the “predatory marriages” take place. The increase in such cases may be related to dementia and increasing life spans.The article cites examples such as where an adult daughter left her elderly father in the care of a longtime friend while she took a short vacation. In one week, the friend married the father, started transferring assets into joint accounts and named herself his pension beneficiary. The children learned of the marriage a month later. When they confronted their father, he recalled nothing about it. In another case, a hired caretaker secretly married her charge of nine years about a year before his death. She told his children about it the day before his funeral.
With our aging population, some states are trying to address these predatory practices by making it easier for family members to unwind these twilight marriages. Some new laws give the family the right to contest the marriage even after the death of the elderly spouse. Other state courts have ruled the a fraud was committed because the elderly person didn’t know what they were doing. Hopefully, all of the states will address this problem before more families are hurt.
While the elderly have always been victimized by so called “caregivers” who try to manipulate the elderly to obtain their property, the avenue that the modern money-seeking caregiver is using is a secret marriage. The elderly need to be protected.
30 April 2011, 12:09 pm
The State of Texas maintains a site to provide customers information about prepaid funerals.
“Prepaid funeral merchandise and services is defined as goods and services sold on a prepaid basis directly to the public for use in connection with future funeral services. Along with the normal funeral service items, prepaid funeral merchandise and services also includes opening and closing of the grave and outer-burial containers. The term does not include a grave, marker, monument, tombstone, crypt, niche, plot, or lawn crypt unless it is sold in contemplation of trade for a funeral service or funeral merchandise.”
You can go to the site by clicking -> here.
24 January 2011, 9:14 am
The Texas Probate Code, §73, requires that a will be probated within four years of the death of the testator “unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years…” So the question in all of these late filing cases revolves around the issue of “default” of the one who files the will for probate.
In a 2010 case, a Texas appeals court found that the proponent of the will was not in default even though she filed the will for probate more than ten years after the testator had died. The evidence listed by the court was that the proponent had limited financial resources: she testified that she could not afford to pay her former counsel and she had to apply for a loan to fix some doors that were falling apart. Moreover, she testified that her educational background was limited to grade school. She believed it was unnecessary to probate the will; she did not know there was a time limit to probate a will. The children of the testator never asked for a share of his estate prior to this action. She also believed the the lawyer had taken care of the matter regarding the will. It was not until a third party, the children of the testator, filed the petition for determination of heirship that the proponent became aware of the need to probate the will, and she did so within thirty days of the children’s petition. After reciting these facts, the court said “As such, the record shows there was no absence of reasonable diligence … in probating the … will, and so she was not in default. 324 S.W.3d 257.
Although it is difficult to do because you must prove that you were not “in default,” it is possible to probate a will more than four years after the testator has died.
30 December 2010, 11:23 am
Texas recognizes two types of wills. A typed will and a handwritten will. A handwritten will is called a holographic will.These two types of wills are equally valid but have different requirements.
A holographic or handwritten will, must be wholly in the handwriting of the testator. It cannot have parts that are printed and parts that are handwritten.The handwritten will must be made with testamentary intent and signed by the testator. No witnesses are required.
A typed will is different from a handwritten will because it must be attested to by two witnesses who sign it in the presence of the testator at his request. A typed will can be partly handwritten and partly typed as long as the handwriting portion was part of the will when the testator and witnesses signed it. If a testator has a typed will that he later changes by handwriting on the will, the will is no longer valid unless the will is re-executed with the formalities required by law, e.g. signed by the testator and attested to by two witness who sign it in the presence of the testator and at his request.
A holographic will can be changed by the testator after it is written by the testator making handwritten changes to it since it is not required to be attested by two witnesses. However, if someone else makes the changes to the handwritten will, it is no longer “wholly” in the handwriting of the testator and it will most likely not be admitted to probate. 162 s.w.2 95, 757 S.W.2d 117.
29 December 2010, 2:28 pm
Some wills make reference to documents outside the will to dispose of property. If the other document is sufficiently identified and was in existence when the will was made, such a will can be valid.
Most of the time, however, references to documents outside the will cause a challenge to the will. To survive the challenge, the documents must be clearly identified and the testator must indicate that he is incorporating the document into his will. Words such as “attached” or “pursuant to” in reference to the other documents are not enough to indicate that the testator wanted to include them in his will. Also, generally identifying documents rather than specifically identifying them may invalidate the will. 452 S.W.2d 560.
11 November 2010, 12:28 pm
A codicil is an addition or supplement to a will. Someone may have been born or died since the original will was executed. A codicil is an easy way to make additions or deletions to a will without having to redo the entire will. However, the codicil has to be executed with the same formalities as a will.
Consider this situation: a man executes a will; several years later, he executes a second will that revokes the first will; then, several years later, he makes a codicil that references the first will and, like all codicils, says that the first will is republished. Is the first will revived even though the second will revoked it? Yes according to the Texas courts. A properly executed codicil has the effect of validating and republishing the prior will so that the will and codicil will then be considered as one instrument speaking from the date of the codicil. 460 S.W.2d 215.
Going even further, most jurisdictions in which the question has arisen also hold that a properly executed codicil validates a prior will which was inoperative or invalid because of defective execution, lack of testamentary capacity, or undue influence. 280 S.W.2d 731; No. 06-08-00015-CV, Texarkana.
