Cases

9 June 2018

Court finds evidence to establish lack of capacity

In Estate of Danford, the County Court in Brazoria County had dismissed a will contest at the summary judgment stage.  In essence, the trial court found that the contestants to the offered will had not presented sufficient evidence to get to trial on either lack of capacity or undue influence claims.  The Houston 14th Court of Appeals disagreed. Regarding capacity, the court of appeals noted the following evidence from the contestants: Neither of the will witnesses had previously known the testator Neither of the witnesses could confirm the witnesses knew she was signing a will; no one read the will […]
4 March 2018

Yes, a deed can be overturned

A deed is typically considered a non-testamentary disposition.  Property that has been deeded away, either directly or through a retained life estate, is not included in a grantor’s estate at death. But are there ways to overturn a deed under Texas law? Yes.  Like a will or an account/insurance designation, a deed can be set aside if a grantor lacked sufficient mental capacity to execute the deed.  Or if the grantor was subjected to undue influence in executing the deed. The analysis will be similar to a will contest. Mental capacity is relatively straightforward, even if the proof is often […]
19 October 2017

Court rejects effort to avoid settlement agreement

In my experience, the vast majority of will contests and related estate disputes are ultimately resolved through settlement at mediation.  The motivation for settlement is driven primarily by several factors: The high costs of litigation.  Lawyers and expert witnesses are expensive.  In some cases, the estate may be responsible for the fees of the  lawyers on both sides; The uncertainty of the results.  Estate cases tend to be very fact specific and the outcome at trial may be determined by how jurors view the contestants on a personal level; The effects of litigation on families.  Litigation often pits family members against […]
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 […]
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