Blog

28 March 2017

Testator lacked capacity to execute estate planning documents

In Texas Capital Bank v. Asche, the Dallas Court of Appeals affirmed the probate court’s judgment that a series of estate planning documents should be set aside. The judgment was based on jury findings that the testator lacked sufficient mental capacity to execute the documents. This was not the classic case of challenged will executed in the days or weeks before death. In this case, the challenge was to a series of wills, codicils, and trust documents executed over a period of about 13 years. This was not an easy task for the contestants, given the long time period and […]
17 January 2017

Court may construe a will before it is admitted to probate

Many will contests involve a challenge to the validity of a will, such as claims it did not meet formality requirements or that the testator lacked capacity or was subjected to undue influence. However, sometimes the primary dispute is how to interpret one or more provisions of a will. I find this to be most often the case when the will is not prepared by an experienced estate planing lawyer. Unfortunately, homemade wills often contain confusing, unclear, or outright contradictory provisions.  Or a testator may have an excellent will drafted by a lawyer, only to make a homemade codicil that […]
21 December 2016

Challenging non-testamentary designations

Much of the “action” in probate litigation these days does not involve challenges to testamentary dispositions.  Instead, I see more of a trend in my practice of challenges to beneficiary designations.  Those include designations for: life insurance accidental death insurance bank accounts investment accounts 401k accounts IRA accounts certificates of deposit ERISA accounts Typically, a letter to an institution asserting a challenge will be sufficient to put payment in suspense.  That will lead to a period of opportunity for negotiation and, failing that, an interpleader suit.  I have encountered a few situations where a financial institution, usually a brokerage, will demand […]
17 November 2016

Estate of Koontz: Another summary judgment overturned

Estate of Koontz is a very recent decision from the San Antonio Court of Appeals.  The trial court in Bandera County had granted summary judgment against a will contestant’s claims of lack of testamentary capacity and undue influence. The trial court also ordered the contestant to pay the executor $18,029.49 in attorney’s fees, finding the contest was not brought in good faith or with just cause.  The court of appeals reversed the summary judgment ruling and the award of attorney’s fees. The primary evidence in response to the motion for summary judgment was the affidavit of the contestant.  Because he brought the contest after the […]
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