TXPL

1 August 2017

Corpus Christi court upholds undue influence verdict

In Estate of Jose M. Rodriguez the Corpus Christi Court of Appeals considered a verdict denying probate to a will because of undue influence. The court of appeals upheld the jury’s verdict. Proof of a claim of undue influence has three elements: (1) the existence and exertion of an influence; (2) that subverted or overpowered the testator’s mind at the time he executed the instrument; (3) so that the testator executed an instrument he would not otherwise have executed but for that influence. A contestant may establish undue influence by direct or circumstantial evidence, but it is more frequently established by the […]
10 May 2017

Account designations in favor of an ex-spouse

For decades, Texas law has provided that a designation of a spouse as a beneficiary in a life insurance policy or a will is rendered void by a divorce. The exceptions are limited. The provision regarding life insurance policies is found in Section 9.301 of the Texas Family Code. The provision regarding wills is found in Section 123.001 of the Texas Estates Code. These provisions often arise in my life insurance beneficiary dispute practice and in estate disputes. Until recently, there was no similar provision regarding beneficiary designations for multi-party financial accounts. In 2015, the Texas legislature added Texas Estates […]
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 […]
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