Wills

Testamentary Intent

Collins v. Smith, 53 S.W.3d 832 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

 

Testator’s original will left his property equally to his five daughters. After the death of Testator’s wife, Testator took a variety of steps in favor of one of his daughters (Favored Daughter) who was still living on Testator’s property. For example, he named her as an agent under a power of attorney and converted bank accounts into survivorship form with Favored Daughter. Favored Daughter sent instructions to Attorney for the preparation of a new will under which cash would be divided among grandchildren with the contents of the house passing equally to his daughters. Attorney prepared the will as instructed but never spoke with Testator about its contents. Attorney, fearing a will contest, did not supervise the will execution ceremony. Testator later executed the will at another law office. Attorney did, however, prepare a deed for Testator under which he conveyed all his real property to Favored Daughter and her husband. After Testator’s death, Disfavored Daughters contested the will and the inter vivos transfers. The jury found for Favored Daughter on all matters including that Testator had testamentary intent to execute the will. Disfavored Daughters appeal claiming that the evidence was insufficient to support the jury’s findings.

The appellate court affirmed. Disfavored Daughters asserted that Testator lacked testamentary intent for a variety of reasons. For example, he was in poor health, did not directly give Attorney the instructions for the will, the will execution ceremony was kept secret from the beneficiaries, Favored Beneficiary was too involved with the will execution, the disposition of the estate was unnatural and impossible, and Testator lacked the means to determine the contents of the will. The court agreed that these factors could cast suspicion on Testator’s testamentary intent but that Favored Daughter met her burden in presenting evidence removing any suspicion. The court reviewed the plethora of evidence demonstrating that Testator wanted his property to pass as indicated in the will and other documents.

Moral: It is difficult to overturn a jury finding that a testator had testamentary intent on appeal. Thus, the contestant must present strong evidence at trial.

 

Miscellaneous

Fraud in Procuring Deed

Collins v. Smith, 53 S.W.3d 832 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

 

Testator’s original will left his property equally to his five daughters. After the death of Testator’s wife, Testator took a variety of steps in favor of one of his daughters (Favored Daughter) who was still living on Testator’s property. For example, he named her as an agent under a power of attorney and converted bank accounts into survivorship form with Favored Daughter. Favored Daughter sent instructions to Attorney for the preparation of a new will under which cash would be divided among grandchildren with the contents of the house passing equally to his daughters. Attorney prepared the will as instructed but never spoke with Testator about its contents. Attorney, fearing a will contest, did not supervise the will execution ceremony. Testator later executed the will at another law office. Attorney did, however, prepare a deed for Testator under which he conveyed all his real property to Favored Daughter and her husband. After Testator’s death, Disfavored Daughters contested the will and the inter vivos transfers. The jury found for Favored Daughter on all matters, including that Favored Daughter did not fraudulently procure the deed. Disfavored Daughters appeal claiming that the evidence was insufficient to support the jury’s findings.

The appellate court affirmed. Disfavored Daughters claimed that Daughter and her husband never intended to pay for the deeded property and thus fraudulently induced Testator into signing the deed. As evidence of their claims, Disfavored Daughters pointed to the fact that no mortgage or note was prepared to protect Testator’s interest in the property. Favored Daughter was unclear as to the purchase price and the terms of payment when questioned at trial. In addition, Favored Daughter initially placed the payments in accounts in which she had survivorship rights. Nonetheless, the jury examined the evidence and concluded that Favored Daughter actually intended to pay for the property.

Moral: It is difficult to overturn a jury finding that a transaction was not fraudulent on appeal. Thus, the complaining party must present strong evidence at trial.

 

Wills

Fiduciary Duties

Collins v. Smith, 53 S.W.3d 832 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

 

Testator’s original will left his property equally to his five daughters. After the death of Testator’s wife, Testator took a variety of steps in favor of one of his daughters (Favored Daughter) who was still living on Testator’s property. For example, he named her as an agent under a power of attorney and converted bank accounts into survivorship form with Favored Daughter. Favored Daughter sent instructions to Attorney for the preparation of a new will under which cash would be divided among grandchildren with the contents of the house passing equally to his daughters. Attorney prepared the will as instructed but never spoke with Testator about its contents. Attorney, fearing a will contest, did not supervise the will execution ceremony. Testator later executed the will at another law office. Attorney did, however, prepare a deed for Testator under which he conveyed all his real property to Favored Daughter and her husband. After Testator’s death, Disfavored Daughters contested the will and the inter vivos transfers. The jury found for Favored Daughter on all matters, including that Daughter did not breach her fiduciary duties. Disfavored Daughters appeal claiming that the evidence was insufficient to support the jury’s findings.

The appellate court affirmed. Disfavored Daughters pointed to many factors which tended to show that Favored Daughter breached her duties towards Testator. For example, Favored Daughter did not tell Attorney that the bank accounts were all in survivorship form so the monetary gifts to grandchildren would actually never take place and that she was going to buy the house. The court examined contrary evidence and found that that it was sufficient to support the jury’s finding.

Moral: It is difficult to overturn a jury finding that a person did not breach fiduciary duties on appeal. Thus, the complaining party must present strong evidence at trial.

 

Estate Administration

Costs for Defending Will in Good Faith

Collins v. Smith, 53 S.W.3d 832 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

 

Testator’s original will left his property equally to his five daughters. After the death of Testator’s wife, Testator took a variety of steps in favor of one of his daughters (Favored Daughter) who was still living on Testator’s property. For example, he named her as an agent under a power of attorney and converted bank accounts into survivorship form with Favored Daughter. Favored Daughter sent instructions to Attorney for the preparation of a new will under which cash would be divided among grandchildren with the contents of the house passing equally to his daughters. Attorney prepared the will as instructed but never spoke with Testator about its contents. Attorney, fearing a will contest, did not supervise the will execution ceremony. Testator later executed the will at another law office. Attorney did, however, prepare a deed for Testator under which he conveyed all his real property to Favored Daughter and her husband. After Testator’s death, Disfavored Daughters contested the will and the inter vivos transfers. The jury found for Favored Daughter on all matters, including that Disfavored Daughters did not attempt to probate Testator’s original will in good faith and with just cause. Disfavored Daughters appeal claiming that the evidence was insufficient to support the jury’s findings.

The appellate court affirmed. Disfavored Daughters alleged that they are entitled to costs under Prob. Code § 243 because they attempted to probate Testator’s original will in good faith and with just cause. They assert there was sufficient evidence to show that they believed Testator’s later will was tainted for a variety of reasons, such as fraud, undue influence, and lack of capacity. Nonetheless, the court determined that there was sufficient evidence to support the jury’s finding that Disfavored Daughters did not proceed in good faith and with just cause.

Moral: It is difficult to overturn a jury finding that a person did not attempt to probate a will in good with and with just cause. Thus, the complaining party must present strong evidence at trial.



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