Estate of Wright, 482 S.W.3d 650 (Tex. App.—Houston [14th Dist.] 2015, pet. denied).
After the court admitted Testator’s will to
probate, Leroy claimed certain property under two theories. First, Leroy
claimed that Testator gave him the property as a gift. Second, Leroy
asserted the will was invalid and that he should receive the property
under the terms of a different will. The trial court held that Testator
made a completed oral gift to Leroy imposing a constructive trust on the
house and ordered it transferred by a special warranty deed to Leroy.
Independent Executor appealed.
The appellate court affirmed. The court agreed that
Testator had gifted the property to Leroy despite the fact that Testator
never deeded the property to him. The court first addressed whether the
Dead Person’s Rule, Texas Rule of Evidence 601(b), should have excluded
Leroy’s testimony about the alleged gift as being Testator’s
uncorroborated oral statements not solicited by an opposing party. The
court determined that Independent Executor did not properly object to
the testimony and thus regardless of the Rule, the trial court could
consider the evidence.
The court next determined that there was sufficient
evidence to prove an oral gift of real property. Although recognizing
that conveyances of real property should be in writing and signed, the
court recognized that in equity, an oral gift is possible. The elements
necessary to prove an oral gift include (1) a present gift, (2) the
donee’s possession of the property with the donor’s consent, and (3) the
donee made permanent and valuable improvements with the donor’s consent
or other facts which show the donee would be defrauded if the gift were
not enforced. The court believed that evidence that Leroy lived in the
house, paid property insurance, handled mold remediation matters with
the insurance company, and that Testator showed him a will in which he
was the devisee of the house was sufficient to prove the gift. Despite a
strong dissenting opinion, the court rejected the argument that the
evidence of the devise will actually showed a future intent which would
prevent the oral gift from being effective.
Moral: A person claiming evidence is
inadmissible under the Dead Person’s Rule must maintain a timely
objection to all uncorroborated oral statements of the Testator not
solicited by an opposing party. Failure to do so will permit the court
to consider that evidence.
After the court admitted Testator’s will to
probate, Contestant attempted to probate a different document as
Testator’s will. Although Contestant’s attempt failed, the trial court
allowed Contestant to recover attorney’s fees from Testator’s estate for
attempting to probate the alternate will. Independent Executor appealed.
The appellate court affirmed. The court determined
that there was sufficient evidence to support the trial court’s holding
that Contestant’s attempt to probate the alternate will was in good
faith and thus Contestant was entitled to attorney’s fees under what is
now Estates Code § 352.052. The court rejected Independent Executor’s
assertion accepted by the dissent that the award was not supported by
proper pleadings or tried by consent. Instead, the court stated although
Contestant’s live pleadings at the time of the trial did not request
attorney’s fees, he did put on evidence of those fees at the end of the
trial and filed a motion for entry of a judgment awarding the fees. The
court also explained that Independent Executor was not surprised by the
request and, in fact, Independent Executor had the opportunity to
cross-examine the attorney about her fees.
Moral: To avoid the issues that arose in
this case, a party alleging entitlement to attorney fees should
consistently request them in all pleadings.