Probate

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 […]
18 October 2016

Estate of Matthews: Successful challenge to marriage

A fairly common scenario in estate litigation involves a claim from a widow to a share of an estate.  Often there is a claim of a common law marriage. Texas recognizes common law marriage under some circumstances.  Once established, a common law marriage is effectively the same as a formal marriage. Even a formal marriage can be challenged, under limited circumstances.  After a person’s death, an interested person may petition a court to annual a marriage entered into less than three years before death, by proving that: on the date the marriage occurred, the decedent did not have the mental capacity to: […]
29 April 2015

Court of appeals upholds removal of executor

In Estate of Montemayor, the San Antonio Court of Appeals considered a challenge to the probate court’s removal of an independent executor.  Such removals have become more difficult since the Texas Supreme Court’s opinion in Kappus v. Kappus. The probate court removed the executor because it found that, after over three years, he had not effectively pursued resolution of the estate.  That alone is not necessarily grounds for removal.  But the sole asset of the estate was a house and lot. The executor moved into the house and told one of the beneficiaries that “he was going to keep the […]
26 May 2014

A claim for tortious interference with inheritance is not necessarily a “probate proceeding”

In In re Hannah, the Houston Fourteenth Court of Appeals considered the Texas Estates Code definitions of a “probate proceeding” and a “matter related to a probate proceeding.”  The case involved a claim by the beneficiary of prior wills against the beneficiaries of a later will.  The claim was that the later beneficiaries tortiously interfered with the prior beneficiary’s expected inheritance. The tortious interference case was filed in Harris County.  The will depriving the earlier beneficiary of her interest was filed and admitted to probate in Aransas County.  The beneficiaries of that will were defendants in the Harris County suit.  They contended […]
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