Wise v. Mitchell, No. 05-15-00610-CV, 2016 WL 3398447 (Tex. App.—Dallas June 20, 2016, pet. denied).
Grandmother (Principal) transferred land to
Grandson retaining a life estate, the authority to sell, and the power
to change the remainder owners. Agent, under a durable power of
attorney, entered into a contract to sell the land and filed a
revocation of the original deed and alternatively, appointed different
individuals as the remainder owners. Agent was later appointed as
Principal’s guardian and requested court permission to sell the
property. Before the court could rule on the motion, Principal died.
Agent was then appointed as Principal’s executor. A protracted dispute
arose between Grandson and Principal over the land. After Principal
prevailed, Grandson appealed.
The appellate court affirmed. The court explained
that Agent’s failure to file the durable power of attorney before
entering into the real property transaction did not impact the validity
of the revocation. In addition, the statutory provision Grandson alleged
Agent did not follow was not part of Texas law although it is part of
the Uniform Power of Attorney Act which Texas has not adopted. The court
also explained that the form Principal used was not the statutory one
and thus Agent’s powers are determined by its terms. The court
determined that the language granting Agent the power to “perform any
and all acts in my stead and to do and perform all such other matters as
may be necessary and expedient for the purposes of carrying out the
objects above mentioned” was sufficient to authorize Agent to revoke the
deed.
Moral: The facts in the case occurred prior
to the enactment of the Texas Real Property Transfer on Death Act,
Estates Code ch. 114. Although § 114.054(b) precludes the creation of a
transfer on death deed by an agent, it does not speak to whether an
agent may revoke an already existing TODD. To avoid controversy, prudent
practice may be to expressly address this issue in the durable power of
attorney.