Posted on | February 16, 2010 | No Comments
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.
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.