Texas, like many other states, prohibits a killer from receiving life insurance proceeds or inheriting from an estate. Such prohibitions are commonly referenced as either a "slayer statute" or a "slayer rule." The public policy is obviously that a killer should not financially benefit from a death he or she willfully causes. Given the sizes of many estates and life insurance policies, such scenarios are unfortunately not uncommon. Certainly, investigators and prosecutor will look to whether insurance or estate proceeds might have provided motive for a particular murder. There have even been some notorious cases of people taking out life insurance policies on acquaintances and then killing them for profit.
Read MoreQuestions regarding the basics of contesting a will or defending a will contest are common from potential clients. Of course, every case is different. The most important guidance I can provide is to consult with an experienced probate litigator very, very early in the process. I can not count the number of times I've been asked to consider handling a will contest after the potential client has spent months or more with a lawyer who is a "family friend" or was seemingly picked at random.
Read MoreIn Estate of Harrell, the testator's daughter challenged her father's capacity to execute a will. The jury found he had capacity and the Houston Court of Appeals (1st. Dist.) affirmed that decision. The father executed the challenged will in 2012. The will specifically identified the daughter, but disinherited her. Instead, he gave his property generally to the sons of a close friend and to his brother. This was contrary to a will he had executed in 1999. The father died in 2016. Daughter contested the 2012 will, citing her father's alleged alcoholism and a hoarding disorder. She also cited the fact that his own name was misspelled in the will. The proponents of the will presented testimony from the drafting attorney and two of the attorney's employees, who served as witnesses to the will. Predictably, they testified it appeared he had capacity. But they did not know him well and could not recall details of conversations with him or the will execution.
Read MoreIn 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:
Read MoreA 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 complex.
Read MoreIn 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:
Read MoreIn 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 number of documents executed. The challenge was largely based on the testimony of a forensic psychiatrist, Dr. Lisa Clayton. She opined that a stroke the testator suffered in 1997 rendered him without testamentary capacity until he died in 2011.
Read MoreMany 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 offers more confusion than clarity. The procedure for having a court determine meaning of a legal document, such as a will, is through a declaratory judgment action.
Read MoreEstate 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.
Read MoreThe 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 an actual lawsuit. But it can be a useful mechanism at times, particularly when a potential will contestant is unable to obtain much information through informal investigation.
Read MoreTexas appellate courts are generally reluctant to overturn trial court factual findings regarding testamentary capacity and undue influence. In re Estate of Parrimore, from the Houston 14th Court of Appeals, is an example. Parrimore involved a trial to the judge (bench trial) of a will contest. The contest involved the usual issues regarding testamentary capacity and undue influence. The evidence at trial was that the testator signed the will only 11 days after being released from the hospital for treatment after a stroke. However, there was also evidence that the testator had begun work on his will long before the stroke and it was consistent with wishes long expressed to friends.
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