A point of confusion I often see is a failure to appreciate probate vs. non-probate assets. It is a critical distinction. For example, I receive many calls from people wanting to contest a will. When I ask about the assets, I often hear that their mother had a million dollars in a brokerage account. I then have to explain that very often financial and investment accounts do not pass through probate. Instead, they pass through beneficiary designations.
Read MoreA testator must have a minimum level of mental capacity to execute a will in Texas. Referred to as testamentary capacity, there are no hard and fast rules for the type and level of evidence required to prove the maker of a will lacked testamentary capacity. But a court of appeals will be reluctant to overturn a jury’s verdict that a testator lacked capacity.
Read MoreOnly interested persons can contest estate proceedings in Texas. Persons who are not interested lack standing and the court will not hear their claims.
Read MoreModern day theft is rarely as evident and action packed as the movies. Bank heists and robberies make for good theatre. But I find that most theft is accomplished with a pen than with a weapon.
Read MoreA power of attorney (POA) is a legal instrument that grants authority to a person (the agent) to act on behalf of another person (the principal). In Texas, the holder of a POA owes a fiduciary duty to the principal, which is a legal obligation to act in the principal's best interest, with the utmost loyalty and good faith
Read MoreExecutors and trustees owe fiduciary duties to beneficiaries. Power of attorney agents owe fiduciary duties to their principal. Disputes regarding the existence of the fiduciary relationship and obligations of fiduciaries are common issues in estate, trust, and guardianship disputes.
Read MoreIn a fair number of the contested estates I handle, there is a claim of common law marriage. Texas is one of the states that still recognizes common law marriages. Those are marriages that are not established formally through a civil process of obtaining a marriage license and a ceremony.
There is often some confusion that a common law marriage is not a "real" marriage
Read MoreThe major assets a person typically owns are either land (real property) or financial accounts. And many of the latter pass through beneficiary designations, not directly through an estate.
Read MoreA very common issue in a contested estate is a claim of common law marriage. Someone claims to be a spouse of the decedent. If they are a spouse it would entitle them to certain assets and legal rights. A common misconception is that a common law marriage is not the same in effect as a traditional civil ceremony marriage..
Read MoreA common form a dispute regarding a will isn’t over its validity, but instead its meaning. There can be disputes regarding the interpretation of a particular phrase contained in a will.
This often comes up in situations where a specific asset no longer exists. Or where a beneficiary has pre-deceased the testator. Or if there is a dispute regarding a beneficiary class or asset class. Sometimes, it is simply a matter of a drafting error.
These disputes are typically resolved via a declaratory judgment action. Often, the executor or administrator will file a declaratory judgment suit when faced with competing interpretations of a provision in a will. The competing parties will then urge the court to adopt their preferred interpretation.
Read MoreDiscovery is the phase of a will contest that happens after the lawsuit is filed and before the case goes to trial. It is the process of uncovering facts supporting either side of the case. During discovery, each side can obtain information and documents from the other side using a variety of instruments, such as Interrogatories, Requests for Production, or depositions. With good lawyering, the parties will already have a basic understanding of the facts. But the discovery process allows the parties to uncover additional evidence, including regarding the assets at issue. And most importantly, it allows for putting the opposing party under oath in a deposition.
Read MoreI am always interested when a Texas court of appeals upholds an undue influence verdict. Undue influence is not easy to prove. But in Estate of Scott, a jury found that three separate wills were the product of undue influence. And the court of appeals upheld those findings.
Read MoreIn Estate of Cooksey, the San Antonio Court of Appeals upheld a jury’s finding that three deeds and a will were the product of undue influence. The effect was to overturn the deeds and the will.
The dispute involved a couple and their two daughters. The husband died in 2010. According to testimony, they had affirmed they intended to divide their property equally between the daughters. But that is not how it turned out.
Read MoreA contractual will contains a binding agreement between two people to distribute their assets in a certain way. It is typically between a married couple. The most often arrangement is the couple will agree to leave their assets to the survivor of the two, with the remainder per the agreement. It is a method for a couple to have certainty regarding the disposition of their assets after both die.
Read MoreEstate beneficiaries often become upset with a lack of communications from an executor regarding the status of an estate. Often times they do not necessarily suspect wrong doing, but want to know the status of the assets and how the executor or administrator is handling the estate.
Read MoreEstate disputes in Texas can go to trial, before a judge or a jury. They can even be appealed after trial. But most are settled short of trial. In Texas, estate disputes, such as will contests are often resolved through family settlement agreements. Often with the help of a mediator, the parties agree to distribute the estate assets differently than provided for in a will or beneficiary designation. Texas pubic policy encourages resolution of probate cases through family settlement agreements, and they are almost always enforced.
Read MoreAfter a will is filed for probate, it is typically at least two to three weeks later before the court holds a hearing to admit the will and appoint an executor. That interval is typically the best time to file a contest. But a contest can still be filed in Texas up to two years after the will is admitted to probate.
Read MoreIn Estate of Durrill The Corpus Christi Court of Appeals considered a suit by children to void their father’s marriage, pursuant to Chapter 123 of the Texas Estates Code.
Read MoreIn ESTATE OF LUCE, the Fort Worth Court of Appeals considered questions surrounding the validity of proxy signatures and testamentary capacity of an accident victim of executes a substitute will while in the hospital.
Michael and GayeLynne Luce’s marriage was not without conflict. After years of trial separations and attempted divorce the couple finally appeared to split for good. In the Fall of 2015 with Michael and GayeLynne’s divorce proceedings working its way through Parker County, Texas courts, Michael was in an ATV accident that left him a quadriplegic.
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