TXPL

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 […]
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: […]
5 July 2016

Estoppel does not prevent beneficiary from pre-suit discovery

The Fort Worth Court of Appeals decision in In Re Meeker involves two important issues for probate litigators: entitlement to pre-suit discovery and estoppel based on acceptance of benefits. Both issues arise fairly regularly in will contests. Texas Rule of Civil Procedure 202 provides a limited method to obtain discovery of facts before actually filing a suit.  It is a useful tool when a litigant suspects they have a valid claim, but wish to investigate further before actually filing suit. There are some exacting requirements of the rule and the discovery tools are more limited than would be allowed in […]
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