In re Estate of Cole, No. 02-13-00417-CV, 2015 WL 392230 (Tex. App.—Fort Worth Jan. 29, 2015, no pet).
A dispute arose as to whether Husband’s will put
Wife to an election to either (1) assert rights to her one-half of the
community estate or (2) give up these rights in exchange for her gifts
under the will. The trial court determined as a matter of law that the
will put Wife to an election. Wife appealed.
The appellate court reversed. The court focused on
the clause of Husband’s will which provided that he intended only to
dispose of his property “including my one-half interest in the community
property.” Wife claimed that this clause means that a gift in the will
of an investment account to Son would only include funds that were
Husband’s separate or his community one-half. The court conducted a
careful review of Texas election will cases and concluded that Husband’s
will did not clearly and unequivocally put Wife to an election.
Husband’s mere statement in the will that the investment account was his
separate property “does not mitigate his prior clear and specific
language that he intended only to dispose of his separate property and
his one-half of the community property.” Id. at *6. At most, this
created an ambiguity which precluded a holding that the will put Wife to
an election.
Moral: A married testator should include an
election provision in the will expressly stating whether the will is or
is not intended to trigger an election by the surviving spouse.
Husband’s will contained a no contest clause which,
among other things, provided that if Wife contested the
“characterization of my property as my separate property” she would
forfeit all gifts to her under the will. Wife made a claim for her
community property interest against an investment account Husband
classified as his separate property. The trial court determined that her
claim did not trigger the no contest clause but yet submitted the issue
of her good faith and just cause to the jury which subsequently decided
she was lacking. Wife appealed.
The appellate court first agreed with the trial
court that Wife was not contesting the will or any of its provisions.
Instead, she was merely asserting a right to her own property which the
will did not prevent her from doing because Husband stated he was only
disposing of his separate property and his one-half of the community
property. Although puzzled about why the trial court submitted the issue
of Wife’s good faith and probable cause to the jury, such action did not
impact the judgment and thus was harmless error.
Moral: An beneficiary’s
action must first fall within the scope of a no contest clause before
the beneficiary’s good faith and just cause in bringing that action is
relevant as a defense to forfeiture.