In re Estate of Cole, No. 02-13-00417-CV, 2015 WL 392230 (Tex. App.—Fort Worth Jan. 29, 2015, no pet).

Wills

Election Wills

 

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.

 

Wills

No Contest Clause

 

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.

 



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