In re Estate of Hemsley, 460 S.W.3d 629 (Tex. App.—El Paso 2014, pet. denied).
After the probate court determined that Testator
had testamentary capacity, Contestants appealed. The appellate court
affirmed. The court studied the evidence which included testimony of the
attorney who drafted Testator’s power of attorney who declined to draft
the will fearing a contest due to Testator’s celebrity status (e.g., the
character of George Jefferson from All in the Family and The
Jeffersons) as well as the attorney who eventually prepared the
will. This attorney had no doubt that Testator had full testamentary
capacity. The two witnesses and a registered nurse caring for Testator
testified in a similar manner. Nonetheless, Contestants claimed that
this evidence was legally insufficient.
Moral: Regardless of how competent a person
is at the time of will execution, family members dissatisfied with the
terms of the will are likely to contest the will, especially if the
estate has substantial value.
Decedent did not specify a person to control the
disposition of his remains under Health & Safety Code § 711.002. A
dispute arose between Half-Brother and Testator’s Friend who was also
the sole beneficiary and executor of his will. The trial court
determined that the Friend’s instructions prevailed and Half-Brother
appealed.
The appellate court concluded that the issue was
moot and thus it could not render a decision regarding whose
instructions had priority. Half-Brother did not suspend the trial
court’s judgment for the period of the appeal allowing Friend to have
Testator buried. Whether Half-Brother can have Testator disinterred and
buried elsewhere was not an issue before the court.
Moral: A person should
execute an Appointment of Agent to Control Disposition of Remains so
that the individual the person wishes to control the disposition has
clear legal authority to do so.