Estate of Wright, 482 S.W.3d 650 (Tex. App.—Houston [14th Dist.] 2015, pet. denied).


Oral Gift of Real Property


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.


Estate Administration

Attorney Fees

Unsuccessful Admission to Probate


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.