Texas Probate Litigation

Gary Coleman's will filed for probate

According this story from the Salt Lake Tribune, Gary Coleman's will has been filed for probate in Utah. The will, executed in 1999, leaves Coleman's entire estate to his former manager. With a will that old, leaving assets to a former business associate, one naturally wonders if it really  reflects his current intentions.  But the law will not presume that Coleman procrastinated or simply forgot to do a new will.  Instead, absent a successful challenge, the existing document will be enforced.

Coleman's ex-wife is threatening a contest, based on a 2007 handwritten codicil.  That codicil apparently gives everything to her.  However, they were subsequently divorced.  Many states, including Texas, do not recognize bequests to ex-spouses, unless made after the divorce or the couple remarries.

Contesting a Will in Texas

Can a change of life insurance beneficiary designation be challenged?

 Under Texas law, one who is named as a life insurance beneficiary can challenge a later beneficiary change on the grounds the decedent lacked sufficient mental capacity or was the victim of undue influence.  The aggrieved beneficiary can file an action to impose a constructive trust on the proceeds.  In In re Estate Of Wallis, the Tyler Court of Appeals discussed Texas law in this regard:

It is well established that the beneficiary of a life insurance policy has at least an estate in anticipation sufficient to authorize the beneficiary to raise the issue of the decedent’s mental capacity to change the beneficiary designation.  Westbrook v. Adams, 17 S.W.2d 116, 120 (Tex. Civ. App.–Fort Worth 1929), aff=d sub nom., Adams v. Bankers= Life Co., 26 S.W.2d 182 (Tex. Comm=n App. 1931, holding approved).  Almost seventy years after Westbrook, the Waco Court of Appeals held that equity may entertain jurisdiction of a suit by an original beneficiary of a life insurance policy to set aside a decedent’s change to another beneficiary on the ground of undue influence and to enjoin the payment of the policy to the latter.  Cobb v. Justice, 954 S.W.2d 162, 167-68 (Tex. App.–Waco 1997, pet. denied) (quoting 4 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 60:72, at 60-132 to 60-134 (3d ed. 1996)); see also Tomlinson v. Jones, 677 S.W.2d 490, 492-93 (Tex. 1984) (former beneficiary of life insurance policy has right to contest change of beneficiaries on ground that deceased insured was incompetent at time change was executed).  And a constructive trust is available as a remedy when a beneficiary designation has been wrongfully changed. See Hudspeth v. Stoker, 644 S.W.2d 92, 95-96 (Tex. App.—San Antonio 1982, writ ref’d) (trial court justified in imposing constructive trust on life insurance proceeds where decedent had changed beneficiary designation in violation of property settlement agreement in divorce).  An assertion that a person wrongfully changed a beneficiary designation form is a distinct legal claim arising from a set of circumstances separate from a challenge to a will.  Kongs v. Harmon, No. 03-97-00444-CV, 1998 WL 394177, at *2 (Tex. App.–Austin July 16, 1998, pet. denied) (not designated for publication).

In this case, a person granted power of attorney changed a beneficiary designation to benefit himself. The court found this was an abuse of fiduciary duty and imposed a constructive trust on the proceeds.

Texas Life Insurance Dispute Law Firm

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

Daughter ripped off dad and landed in jail

This article from Virginia details an unfortunately common scenario of a child taking financial advantage of a parent.  As is typical in these cases, the daughter and her husband isolated the 84 year old man  and had him sign over his assets.  The steps they took to keep him away from from the rest of the family were extreme:

Living with Emma and her husband for nearly two years, Moncie was kept secluded in their home and cut off from contact with other family members and long-time friends. The couple had disabled his vehicles, prevented his use of the telephone and used scare tactics to keep him from leaving the house, according to the court’s findings. Suspecting his food was being laced with drugs, Moncie lost 45 pounds.

The ordeal ended when Moncie pried open a door and escaped into the cold night on Jan. 10, 2008. “He just got desperate enough to leave,” said Pulley. Moncie walked for miles before getting help at a convenience store.

The father sued the daughter to recover his assets.  The trial did not go well for her and the judge ordered her jailed for contempt of court:

The case turned on the credibility of the competing family members, and Alexander did not hesitate to rule for Moncie in Doss v. Doss (VLW 008-8-262.) He wrote, “Emma’s testimony is not credible. She has intentionally given false testimony during the course of the trial. … In contrast to Emma’s testimony, Moncie’s testimony is credible.”

Emma must have sealed her reputation with the judge when she was asked in open court in August what happened to $120,000 from the sale of one of her real estate purchases. “I used the money to pay them,” she said, pointing to the lawyers for herself and her husband. The lawyers later had to acknowledge their retainers were a good deal less than $120,000.

Later, Emma submitted an affidavit purporting to account for the funds, but the judge found it insufficient and ordered Emma locked up for contempt of court.

Describing the hearing, Pulley said the judge told Emma, in effect, “You’ve had two chances to tell the truth. I’m going to send you someplace where you have a chance to think about it.”

“And she’s still there,” Pulley said. Alexander ordered her release if she pays $25,000 of the award

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Probate litigation also increasing in the UK

Probate disputes are not only increasing in Texas, but also overseas.   This article discusses the growing number of disputes in the UK.  The primary reason cited is the growing of estates with more than £300,000 in assets (about $450,000):

Lawyers expect the surge in will disputes to continue. 'A huge swathe of the population has entered into the bracket whereby disputing the will makes economic sense, even though litigation is expensive,' says Paul Hewitt of Withers.

The article also gives a bit of advice:

The best advice is to try to settle. As well as costing a great deal of money, court decisions do not tend to provide 'win-win' solutions. At the start of a dispute, relationships can break down totally between estranged family members. But most cases settle when clients start paying the ongoing legal costs.

Copeland is used to organising 'family meetings' to try to negotiate settlements. 'At the start, we encourage both sides to read out a statement, or to outline their concerns and what they want to achieve,' she says. 'That tends to humanise the situation and take a lot of heat out of it.' Compromises usually follow.

Settlement is often preferred for a number of reasons, including avoiding the uncertainty of trial, reducing family acrimony, and saving legal fees and expenses.  But settlement depends on both sides being reasonable and sometimes going to trial is the only option.

Will contest: Neighbors take control of millions?

Interesting article regarding a will contest in Australia.  An elderly woman worth about $15 and no close relatives had an old will leaving her estate to animal charities.  Some neighbors apparently decided to "take care of" the elderly woman and have her make a new will which gave them the money.  Not surprisingly, the charities contested the later will, providing classic evidence of lack of testamentary capacity and the exercising of undue influence:

Justice Peter Vickery also heard that when a relative arrived to live with and care for an ailing Ms Dyke, she found five of the neighbours in the elderly lady's house.

Dianne Dyke, of Phillip Island, said that there were a group of "very stern" people in her cousin's kitchen, and she identified them as neighbours who later received millions in the will.

"It was a strange feeling. It made me feel very uncomfortable," Mrs Dyke said.

The plaintiffs, who are contesting Betty Dyke's will, have alleged that the neighbours tried to isolate her after they were made her major beneficiaries. 

Another witness, Shirley Huyton, said she'd bought eggs from Ms Dyke for decades, but noticed that from the late 1980s her mental powers deteriorated.

Mrs Huyton, of Mornington, said that on being given money, Ms Dyke would "have a few goes" at trying to calculate the cost of the trays and how much change she should give.

"Betty was not mentally or physically well for a number of years prior to her death," she said.

   

   

More on the Hunt saga: Al III's attorney disqualified

Northern District Judge Reed O'Connor has disqualified Bill Brewer from further representing Al Hunt III in the case.  As this Dallas Morning News story notes, Brewer had previously represented Al Hunt Jr in an earlier, unrelated matter.  I haven't read any of the briefs on the issue, but I suspect the Judge could have decided the issue either way and I doubt he is overruled by the 5th Circuit. 

Al III has 45 days to find another attorney.  That shouldn't be a problem in a case with this profile.

Dallas will contest attorneys.

Mortgage fraud, power of attorney, and elder abuse

This story from San Diego details how a famous Russian composer was apparently duped by swindlers and became a victim of mortgage fraud.  Not surprisingly, a power of attorney (a favored tool of swindlers), combined with a good old fashioned confidence scam, led the composer and his wife into a circumstance where they went from owning a condo outright to a house with over a million dollar mortgage.

It is possible the composer's greed and desire for a huge house led him to lower his guard. More likely, he was simply too trusting and failed to carefully read the numerous documents the swindlers had him sign.

Consistent with my prior observations, the story notes:

Financial crimes against the elderly have in the past five years supplanted physical abuse in nursing homes as the most commonly thought of crime against seniors, said local elder abuse attorney Linda Robinson.

"All of a sudden -- in the last five, six years, predators figured this out that these elderly people have a lot of financial gain, and it just evolved," she said. "Not to say there still isn't a lot of nursing home abuse, that's sadly still continuing. But definitely the evolution has been to this financial sector."

Our firm has been evaluating an increasing number of cases involving allegations of mortgage fraud. Such fraud was apparently quite prevalent in North Texas, particularly in Collin County.  North Texas bank and lender liability lawyers.

Abuse by home care providers

Abuse of the elderly in nursing homes has long been recognized as a problem.  In Texas, our legislature "addressed" the problem by making it harder to sue nursing homes.  Seems those evil plaintiff lawyers and whining relatives of the victims were proving to be a drain on the profits of the large nursing home chains.  But large contributions to those in power in Austin saved the day.  (Yes, I'm being sarcastic.  But votes have consequences and many voters are finding that blind support for "tort reform" just maybe wasn't a good idea).

This Wall Street Journal  article by Philip Shishkin discusses financial and physical abuse of the elderly in their own homes.  Home care is increasingly popular with the elderly, their families, and those paying the bills.  As the article notes:

The trend toward home care has generally been hailed as a way to keep seniors happier and healthier, and at a lower cost, than they would be in an institutionalized setting. Nonmedical home aides typically receive only $10 to $15 an hour, and often work part-time. It costs the government's Medicaid program about $6,000 per person per year for home care, versus about $20,000 for care in a nursing home, according to Joshua Wiener, an analyst at RTI International, a research institute in Research Triangle Park, N.C.

The bulk of the abuse comes from non-medical providers:

Health aides are often certified nursing assistants, who are generally licensed and regulated. But the bulk of the abuse cases involves caregivers hired to provide nonmedical assistance. These caregivers, who aren't required to receive specialized training, are only loosely overseen.

That is consistent with my personal observations.  The unlicensed caregivers who provide housekeeping services are more likely than medical personnel to mistreat the elderly.  The most common form of mistreatment is petty theft of cash or property.  But sometimes the caregivers convince the senior to write large checks for cash, give them power of attorney, or even make them a beneficiary to their will. Fortunately, physical violence is rare.

Family members who suspect such abuse should be vigilant in reporting and removing the care giver.  Often times the senior will deny the financial abuse occurred because they are embarrassed to admit the "nice person" was actually a con artist.  Even if they don't want to prosecute or file a lawsuit, the relatives should take action to remove the caregiver.

What about the possessions nobody really wants?

As a litigator, I deal with fights over who gets what from the decedent's estate.  But what about possessions nobody really wants, but feel tortured about declining? There is a nice NY Times article on the topic by Joyce Wadler entitled The Tyranny of the Heirloom.

Legatees recognize the sentimental value of certain personal possessions.  But recognizing the sentimental value doesn't solve the issue of what to do with large items such as paintings or furniture.  What fit into a parent's decor might stick out like a sore thumb in another setting.  But simply selling or giving away certain possessions is too traumatic for many as explained by one gentlemen entrusted with a "hideous Victorian settee":

Mr. Nye had a car painter spray it white and then reupholstered it in white and yellow checks, which made it look fresh for a time. When he changed his décor, he tried for chic by ebonizing it and putting taupe linen fabric on it. “It just looked like an old Victorian settee painted black with linen on it.” It has now been exiled to his office.

“It will never live in my house,” Mr. Nye says. “But I can’t get rid of it. I’d be guilt ridden, I’d have to increase my Zoloft.”

He has five siblings; why not give it to one of them?

Mr. Nye, a glib talker, now stumbles.

“I could, um, I just feel emotionally, um, it’s taken me years of therapy to get over my relationship with my mother, it was something my mother just adored, so by giving it away, I would be breaching that healed relationship.”

Unfortunately, there is only so much a probate litigator can do to help a client with the understandable, yet emotionally difficult to resolve, issues surrounding heirlooms.