Texas Probate Litigation

Inheritance disputes on the rise

The Financial Times recently published an article regarding the rise in will contests in the UK.  Rise in claims by people contesting inheritance attributes the primary causes as the complexity of modern family structures and outdated inheritance laws in the UK.

The changing family structures certainly is also a cause for the increase in inheritance disputes in the US.  Based on my experience, it also can be attributed to the increasing prevalence of dementia. A common tactic these days seems to be to rush mom or dad to get a will made after they exhibit signs of severe dementia. In my view, that is nothing but theft of inheritance.

Texas Inheritance Dispute Lawyers

Inheritance theft

Inheritance theft can be defined in many ways.  Simply put, it is the diversion of a testator's estate, including probate and non-probate assets, to the benefit of someone who utilizes overt threats, exerts undue influence or uses deception to subvert the natural will of the testator.  Unfortunately, it is a rapidly growing problem in the United States as the baby boomers age and pass away.

The largest thefts in prior generations may have been accomplished with a gun. These days it may be a son or daughter simply telling their father suffering from dementia, "Daddy I need you to sign some papers." Those papers will typically include a Power of Attorney and a will.

Inheritance disputes

A testator may possess capacity, but still be subject to undue influence

Last year, my opposing counsel in a will contest case argued to the Judge that a jury shouldn't even consider evidence of undue influence until it decided whether the testator had capacity.  His position was that a finding that the testator had capacity would render moot my client's alternative position that the testator was unduly influenced.

The Judge rejected that argument.  Texas law is  that a testator with capacity to execute a will may still be subject to undue influence. 

A good example in this regard is found In re Estate of Reno. In that case, the Texarkana Court of Appeals reversed the trial court's determination that the testator lacked testamentary capacity.  However, the court of Appeals affirmed the ruling that the testator was unduly influenced to make the will at issue.

In its decision, the Court of Appeals noted:

To prove whether the testator's free will was subverted or overcome, we examine the testator's mental or physical incapacity to resist or susceptibility to influence. Weakness of mind or body are relevant inquiries.

Therefore, medical evidence regarding the testator's mental and physical condition can still be critical, even when the issue is undue influence instead of testamentary capacity.

Fort Worth and Tarrant County Will Contest Lawyers

Contesting a Will in Texas

Trial & Heirs

 
  Michigan attorneys Danielle and Andrew Mayoras have written a fascinating book about famous celebrity estate battles.  Trial & Heirs tells tales of estate plans that went awry, or were never made.  The predictable result of litigation might be messy, but makes for entertaining reading.  It also should give pause to the non-celebrity readers who either ignore estate planing or try the self help route of the internet will kit.

Widow of intoxicated driver denied life insurance benefits

An article in the Houston Press discuses the plight of a widow denied life insurance benefits because her husband was legally intoxicated when he was killed in a car accident.  Essentially, Cigna claims her husband's death was not an accident because it was foreseeable due to his drinking before driving.

Certainly society should discourage drunk driving. However, in my view, this is another example of an insurance company finding creative means of denying life insurance benefits.  Fortunately, the widow found an attorney willing to sue Cigna in federal court. The suit is in federal court because the husband had obtained the life insurance policy through his employer.

Beneficiaries denied or delayed benefits by the life insurance company should contact an experienced Texas Life Insurance attorney.

Texas Attorneys Handling Life Insurance Denial Litigation

Who gets the life insurance?

I've evaluated, and handled, several cases in the past year involving disputes over who gets life insurance proceeds.  Most of the time the answer is easy: whoever is listed as the beneficiary gets the policy proceeds. Such designation will override the terms of a will.

However, in some circumstances the answer is not so simple.  Claims to life insurance proceeds often must be evaluated under both Texas and federal law.  Some factors to consider:

1. Was the policy owner married when the policy was purchased?
2. Did the policy owner get divorced after the policy was purchased?
3. Did the policy owner remarry?
4. Was the policy bought directly or through an employer?
5. What was the source of the premium payments?

I have found that many attorneys have difficulty evaluating these claims.  That is likely because they can involve a mixture of Texas community property laws and federal ERISA regulations.  In some cases, designating someone other than a spouse as the beneficiary creates a fraud on the community claim.  But such claims can sometimes be preempted by ERISA.

It is very important to contact an appropriate attorney to evaluate life insurance claims.  The advice you get from friends and relatives will very often be incomplete or simply wrong.

Texas Life Insurance Dispute and Denial Lawyers

Undue influence is typically more subtle than overt duress

Michael:"So my father went to see this bandleader and offered him $10,000 to let Johnny go, but the bandleader said no. So the next day, my father went back, only this time with Luca Brasi. Within an hour, he had a signed release for a certified check of $1000.

Kay: How did he do that?

Michael: My father made him an offer he couldn't refuse.

Kay: What was that?

Michael: Luca Brasi held a gun to his head, and my father assured him that either his brains or his signature would be on the contract."

    The above passage from The Godfather is not typical of the type of undue influence alleged in most will contests. The bandleader had a choice between signing the paper or losing his life.  Naturally he chose the former option.

     In real life, undue influence is rarely so obvious.  It typically involves a pattern of interaction between the influencer and the testator, sometimes stretching over a period of years. Typically the influencer isolates the testator and exerts overt, yet sometimes subtle, influence to coerce the making of a will benefiting the influencer.  The key in evaluating a potential undue influence claim is distinguishing the encouragements of a relative or a friend for a testator to remember her in his will, from deceptive, manipulative and coercive actions.

Texas Undue Influence Law

Texas Inheritance Disputes

Obtaining the testator's medical records in a Texas will contest

Many will contests are based upon an allegation the testator lacked capacity when executing the will at issue.  In such cases, it is important to obtain the testator's medical records.  Records indicating any form of dementia, including alzheimer's, are powerful evidence that a will should not be probated.

However, medical records are protected from disclosure in this age of HIPAA restrictions. Typically, the patient must sign a HIPAA compliant release.  Of course, that isn't possible in a will contest. Fortunately, Texas law provides a mechanism to obtain a deceased person's medical records.  Texas Probate Code 10B provides:

Notwithstanding the Medical Practice Act, a person who is a party to a will contest or a proceeding in which a party relies on the mental or testamentary capacity of a decedent before the decedent's death as part of the party's claim or defense is entitled to production of all communications or records relevant to the decedent's condition before the decedent's death. On receipt of a subpoena of communications or records under this section and proof of filing of the will contest or proceeding, by file-stamped copy, the appropriate physician, hospital, medical facility, custodian of records, or other person in possession of the communications or records shall release the communications or records to the party requesting the records without further authorization.

When requesting a testator's medical records from a physician or hospital, I include a copy of that statute along with my petition contesting the will. 

Contesting a will in Texas.

Retailer pleads no contest to elder fraud

Interesting story out of San Antonio.  A retailer, Arrow Upholstery & Drapery, was ordered to pay a $102,000 fine after pleading no contest to felony elder fraud.  This San Antonio Express news story has the details:

Bertha Briggs, who lived in the Towers retirement community, contacted Arrow Upholstery in April 2006 to install five window drapes. The business initially charged her $62,000 but later agreed to reduce the amount to $11,300 after her daughter complained, according to court documents.

Despite the steep reduction, Briggs was still overcharged, her daughter, Sharon Morey, said in court documents.

Morey traveled from California to meet with the Bexar County district attorney's office in June 2006, after getting a call from her mother's bank attempting to verify a $35,000 down payment check to Arrow Upholstery.

The daughter said Briggs, who died this year, was 90 years old and her eyesight, hearing and memory were failing at the time the purchase was made.

“She had never been good with numbers or finances, and now whatever skill she once had is virtually gone,” Morey previously said in court documents. “She frequently says to anyone, including  strangers, ‘I can't see, I can't hear, but otherwise I'm all right.'”

As the story notes, the line between unethical and criminal was Briggs' lack of mental capacity.

New Texas Law Regarding Forfeiture Clauses

Many testators try to discourage potential will contestants by leaving them a modest amount in the will, while providing that bequest will forfeit if the beneficiary files a will contest. These in terrorem or "no contest" clauses are construed narrowly by Texas courts, but they do sometimes discourage even well founded contests.

Such clauses will now be more difficult to enforce. On June 19, 2009, Governor Perry signed HB 1969, which became effectively immediately. It amends the Texas Probate and Trust Codes to provide that  no-contest clauses will not be enforced to forfeit a devise if the contest to the will or trust is brought:

1) with probable cause; and
2) in good faith

Some Texas appellate decisions had at least hinted that forfeiture would not apply if the contest was brought with probable clause and in good faith, but the Texas Supreme Court has never directly addressed the issue.  While probate litigators will no doubt wrangle over what constitutes probable cause and good faith, this codification provides needed clarity.

Some estate planners will argue that this is not a good change to the law because it will encourage more will contests and frustrate the intent of testators. However, those of us who litigate in this area see far too many cases of new wills being executed just after the testator has suffered a stroke or is in the grip of Alzheimers or other dementia. 

Will contests in Texas.