PROBATE LAW

FALL 2011

In re Estate of Fiedler, W.L.1441888; LEXIS 52856 (Tex. App.—Corpus Christi 2011) (memo op.)

Undue Influence and Fraud in Will Contest: Ernst repeatedly told his family he did not want to execute a will because he did not care what happened with his property after his death. Beginning in 2002, Ernst recuperated from injuries from a fall and fought cancer at the VA hospital for a year. Ernst’s brother was at the VA hospital at the same time, and Ernst’s niece paid Ernst’s bills, cared for his property, and visited him regularly. In July 2002, Ernst met Tammy at the VA hospital. Tammy’s husband was related to Ernst’s late wife. In 2003, Ernst and Tammy began visiting each other regularly, and Tammy helped Ernst with his medications and occasional rides to the VA hospital. In July 2003, Tammy asked Ernst about a will and his Jefferson County property. Tammy called a local attorney to discuss the disposition of Ernst’s property in July 2003, researched the legal descriptions of Ernst’s Jefferson County property, and scheduled a meeting with the attorney, Ernst, and Tammy at Tammy’s home. The attorney prepared a will and called Tammy instead of Ernst when the will was ready. Tammy drove Ernst to the bank to execute the will and witnessed Ernst execute the will. Ernst died in 2006, and Ernst’s brother and niece discovered that the will left Ernst’s entire estate to Tammy. Ernst’s brother contested the will based on undue influence and fraud. The jury found that Ernst’s will was procured by undue influence and fraud, and Tammy appealed. Held: The Court found that there was sufficient evidence to prove the elements of undue influence and fraud based on Tammy’s actions. Affirmed.

In re Estate of Lynch, W.L. 1496536; LEXIS 2942 (Tex. App.—San Antonio 2011, no pet.)

Undue Influence and Testamentary Capacity in Will Contest; Attorneys’ Fees in Will Contest: In 1995, Wilbur Lynch (“Wilbur”) suffered a stroke, and his daughter Tracy began to travel to Wilbur’s home once a month for six and a half years to help Wilbur with his business. After the death of Wilbur’s wife in 2000, Tracy moved in with Wilbur to care for him. In 2001, Wilbur executed a will that left his estate in equal shares to his three daughters, and filed a deed giving his home to Tracy. Wilbur was diagnosed with dementia, and Wilbur later executed a 2003 will after a clinical psychologist hired by an estate planning attorney conducted a testamentary capacity evaluation of Wilbur. The primary beneficiary of the 2003 will was Tracy. Wilbur died in 2005, and the 2003 the will was admitted to probate. The other daughters contested the 2003 will on the grounds of lack of testamentary capacity and undue influence by Tracy, and the jury returned a verdict in favor of the other daughters and included an award of attorneys’ fees. Held: The Court concluded that testamentary capacity and undue influence “are not necessarily mutually exclusive; in fact, one (incapacity) may be a factor in the existence of the other (undue influence).” As a result, the Court refused to hold that in all cases a person cannot both lack testamentary capacity and be unduly influenced. The Court held that Wilbur lacked testamentary capacity and was subject to the undue influence of Tracy when he executed the 2003 will. The Court further held that Tracy’s attorneys’ fees will not be paid out of the estate, since Tracy unduly influenced Wilbur regarding the 2003 will and therefore did not act in good faith. Affirmed.

Jurek v. Kivell, W.L. 1587375; LEXIS 3032 (Tex. App.—Houston [1st Dist.] 2011) (memo op.)

Fraud by Nondisclosure of Will; Motion for Summary Judgment: Joseph conveyed a home to his daughter Linda, but Joseph later sued Linda over ownership of the home and the court ordered the parties to mediation. The mediation agreement included a surrender of fee simple in the home by Linda, a grant of a life estate interest in the home to Linda, and a 1/4 future interest in the home to be given to Linda upon Joseph’s death. Joseph later sued Linda again seeking reimbursement of insurance premiums and asserting that Linda forfeited her right to a life estate in the home, and the court found for Linda. Linda sued Linda’s two sisters in a third lawsuit in their individual capacity and as guardians of Joseph. Linda alleged that Joseph and the sisters conveyed the home to one of the sisters in violation of the mediation agreement. Joseph died in 2008, and Linda learned that Joseph’s will did not provide for Linda’s 1/4 future interest in the home. Linda amended her lawsuit and also sued Joseph’s attorney and asserted the attorney had not disclosed the existence or contents of Joseph’s will during the mediation. Linda argued that Joseph’s attorney had a duty to disclose the existence and contents of Joseph’s a will under the common law cause of action of fraud by nondisclosure and the state bar’s disciplinary rules for professional conduct. The Court affirmed the trial court’s grant of Joseph’s attorney’s motion for summary judgment. Held: Affirmed.

Coleman v. Coleman, W.L. 1796234; LEXIS 3497 (Tex. App.—San Antonio 2011, no pet.)

Will Construction; Mineral Interests: Randolph’s will included a bequest of a life estate in his mineral interest in Crockett County to his wife Betty. Randolph’s children and grandchildren from prior marriages filed suit against Betty in probate court challenging Betty’s claim to royalties from new wells drilled after Randolph died, and also filed a declaratory judgment to construe the bequest to Betty. Betty counterclaimed and also filed a declaratory judgment to construe the bequest, and the probate court granted Betty’s motion. Held: The Court held that Randolph unambiguously bequeathed to Betty a life estate in Randolph’s entire mineral interest in Crockett County, and Randolph’s statement of his owner number with Oxy in the bequest provided additional detail regarding the entire mineral interest. Affirmed.

In re Guardianship of Erma Lee Bays, W.L. 3211251; LEXIS 4834 (Tex. App.—Fort Worth 2011, no pet.)

Notice of Temporary Guardianship: A social worker filed a suggestion of need for guardianship or need for investigation under Texas Probate Code § 683 regarding Erma Lee Bays (“Bays”), and included facts regarding Bays’ transfer of money to Nyagudi O. Okumu (“Okumu”). The probate court appointed a guardian ad litem and a court investigator. The guardian ad litem filed an application for letters of guardianship and the probate court appointed an attorney ad litem to represent Bays in the guardianship matter. Okumu filed a pro se motion asking the probate court to inform Okumu of any actions in the guardianship matter and to recognize a power of attorney executed by Bays. Okumu also filed a pleading which purported to be an answer and a motion for continuance. Okumu’s attorney filed a notice of appearance and a contest to the guardianship. The guardian ad litem filed an application for temporary guardianship and sought emergency relief because Okumu had withdrawn over $200,000 from Bays’ bank accounts. Okumu attended the hearing on the application for temporary guardianship. The probate court appointed a temporary guardian of the person and a temporary guardian of the estate of Bays, and also ordered Okumu to place the funds removed from Bays’ bank accounts into the probate court’s registry. Okumu did not comply with the order, and the probate court found Okumu in contempt and ordered Okumu incarcerated. Okumu appealed the probate court’s order. The record reflects that after multiple attempts to serve Bays by the certified process server, the process server resorted to court order and served Bays by attaching the notice to Bays’ door pursuant to Texas Rule of Civil Procedure 106(b). The record contained an affidavit by the process server, a return by the process server, a motion for substituted service, and an order on the motion for substituted service. Held: The Court overruled Okumu’s arguments regarding service. The Court also held that Texas Probate Code § 875 did not include a ten day notice requirement prior to a hearing being held on a temporary guardianship application. Okumu was not deprived due process of law when the probate court ordered Okumu to turn over Bays’ funds even though Okumu was not given notice of the temporary guardianship hearing. Affirmed.

Lacis v. Lacis, W.L. 2623954;LEXIS 4913 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

Will Construction; Anti-Lapse Statute: A declaratory judgment action was filed to construe bequests under a will admitted to probate in light of the Anti-Lapse Statute under Texas Probate Code § 68(a). Uldis’ will included specific bequests to his children, and the residuary of his estate to his wife. The specific bequests to Uldis’ children did not specifically state how the bequests would pass if Uldis’ children predeceased Uldis, and Uldis’ children predeceased Uldis leaving surviving children. Uldis’ will defined the residuary estate as “all property in which I may have any interest (including lapsed gifts)”. The trial court applied the Anti-Lapse Statute and found in favor of Uldis’ grandchildren. Held: The Court analyzed the language in Uldis’ will and concluded that the language demonstrated Uldis’ intention that should the specific bequests lapse the bequests would become part of Uldis’ residuary estate. The Court reasoned that the application of the Anti-Lapse Statute would require the Court to ignore how Uldis expressly defined the residuary estate, and it presumed Uldis intended the specific bequests to pass to his grandchildren if his children predeceased him. Reversed and remanded.