Texas Capital Bank v. Asche, No. 05-15-00102-CV, 2017 WL 655923 (Tex. App.—Dallas Feb. 17, 2017, pet. dism'd).
The trial court determined that the testator lacked
capacity to execute multiple estate planning documents over a period of
time spanning over a decade. In addition, the trial court found that the
testator was subjected to undue influence.
The appellate court made an exhaustive review of
the evidence which included both medical and lay testimony. Although
there was “unquestionably conflicting evidence” about testator’s
capacity, the court explained that it may not substitute its judgment
for that of the jury. The court then concluded that the evidence was
legally and factually sufficient to support the jury’s finding that the
testator lacked capacity. Accordingly, the court did not need to address
the undue influence issue.
Moral: Once a jury determines a testator’s
capacity to execute a will, it will be difficult to have that finding
overturned on appeal unless the jury’s finding is against the great
weight of the evidence.
The trial court determined that a settlor lacked
capacity to create a trust. However, the contestant failed to join the
trustee of the trust as a party. Accordingly, the appellate court
reversed because “[i]t is well established that suits against a trust
must be brought against its legal representative, the trustee.” The fact
that the same entity was a party to the lawsuit as the settlor’s
executor was insufficient as “[e]xecutor and trustee are separate and
distinct capacities.”
Moral: A trust is not a legal entity that
can sue or be sued. In any action involving a trust, the trustee in
his/her/its representative capacity must be made a party.