Texas Probate Litigation

Failure to probate will cost son mineral interests

J. Michael Young — Fri, 03 Feb 2012 15:30:17 -0600

I have written previously that legal heirs and beneficiaries should pay close attention to mineral interests possibly owned by the decedent. With modern drilling technologies, previously dormant areas have become hot beds of drilling activity. A prime example is the Eagle Ford Shale formation in South Texas, streching from Webb to Karnes to Leon counties.

Several will contests and trust disputes I'ver handled involved oil and gas interests throughout Texas. What was previously a relatively modest estate can become quite large if the interest is in one of the modern drilling hot beds, such as the Eagle Ford Shale, the Barnett Shale, or the Haynesville Shale in East Texas. I've also seen reports of renewed activity in the Permian Basin.

In Estate of Rothrock, the Tyler Court of Appeals considered the efforts of a son to probate his father's will 14 years after his father died. The son, named as the executor, did not offer the will for probate earlier because he believed his father did not own significant property. Instead, the son entered into an agreement with his siblings to split the property and he only received two cameras owned by his father.

In 2008, the son was notified by an oil and gas landman that his father owned mineral interests in Cherokee County, Texas. At that point, he decided to offer the will for probate to obtain a share of the mineral royalties. Unfortunately for son, Section 73(a) of the Texas Probate Code provides that a will cannot be offered for probate more than four years after the testator's death, unless the proponent can demonstrate he was not in default for the untimely filing. In this case, the appellate court agreed with the trial court that the son had not provided a sufficient legal excuse for failing to probate the will. It was clear that the son knew about the will and had a copy, he just didn't believe there were enough assets to justify probating the will and instead opted to sign the agreement wherein he received the two cameras. Bad move in retrospect.

The decision notes that evaluating the default issue depends on the particular facts and circumstances. In a different circumstance, the court may have allowed the will to be probated.

Contesting a Texas Estate involving mineral interests

Seven Stages of Alzheimer's

J. Michael Young — Thu, 15 Dec 2011 19:55:49 -0600

A fair number of the will contest cases I handle involve testators with Alzheimer's or some other form of dementia. In fact, I have just filed a contest involving an elderly testator who, according to statements made by an attending nurse, was suffering from Stage 7 Alzheimer's. According to the Alzheimer's Association, this is the final stage and typically characterized by:

"In the final stage of this disease, individuals lose the ability to respond to their environment, to carry on a conversation and, eventually, to control movement. They may still say words or phrases. At this stage, individuals need help with much of their daily personal care, including eating or using the toilet. They may also lose the ability to smile, to sit without support and to hold their heads up. Reflexes become abnormal. Muscles grow rigid. Swallowing impaired."

More information regarding the seven stages of Alzheimer's can be found at alz.org.

Contesting a will in Texas, including Collin, Dallas, Tarrant, Harris and surrounding counties

Evans v. Allen: No general discovery rule in will contests

J. Michael Young — Wed, 23 Nov 2011 21:01:36 -0600

In Evans v. Allen, the Houston First Court of Appeals affirmed the dismissal of a will contest filed more than two years after the will was admitted to probate. In affirming the decision of Harris County Probate Court Number One, the Court of Appeals affirmed that the discovery rule does not generally apply to will contests.

Section 93 of the Texas Probate Code provides that a will contest must be brought within two years of the will being admited for probate. The only stated exception is that a suit may be brought to cancel a will for fraud or forgery after the discovery of the fraud or forgery.

The appeals court noted that a person interested in an estate is charged with constructive notice of the contents of the public probate records. Therefore, the fact that they may not be actually aware of a will being admitted to probate is no excuse for an untimely contest.

Contesting a Will in Texas, including Dallas, Fort Worth, and Houston areas

Contesting the internet will

J. Michael Young — Wed, 27 Jul 2011 20:24:27 -0500

I'm not an estate planner and do not evaluate the quality of the will kits available at various book stores or on the internet. I have heard from colleagues who draft wills and trusts that these form kits are often flawed in substance and fail to comply with various technical requirements of state law or do not really offer the tax benefits advertised.

As a probate litigation attorney, I have another perspective on these will kits. They are easier to challenge than a will or trust prepared by an attorney and where the execution is overseen by an attorney. I have handled multiple contests of internet wills in Texas and every one has resulted in a relatively quick, and favorable, settlement for my client. The problem for the proponent of such wills is that there is not an attorney, and the attorney's staff, available to testify that the testator appeared to have capacity and did not appear to be subject to undue influence. Thus, you are often left with only the proponent and the proponent's friends - or total strangers who don't know the testator and aren't trained in any manner to evaluate capacity - to support the will.

Keep that in mind if you are considering using an internet will and there is even the possibility of a contest. I've challenged several for clients where hundreds of thousands of dollars were at issue. So far I haven't handled any contest of an internet will where the estate was valued in the millions of dollars. But I suspect it won't be long as the internet will kits become more popular due to constant advertising. People are often tempted to be penny wise and pound foolish. That is the perfect description for someone who would use a will kit to direct the disposition of a seven figure estate.

Contesting a will in Texas

Unholy matrimony?

J. Michael Young — Sun, 12 Jun 2011 20:41:37 -0500

"Twilight marriages," "predatory unions" or whatever colorful term used, late lafe marriages by persons suffering dementia are under inreasing scrutiny. It can be a form of inheritance theft in my view, depending on the particular circumstances.

The Wall Street Journal has a nice article on the phenomenon:

It is difficult enough to entrust an elderly parent's care to someone you hire. But what do you do when that worker secretly marries their charge—and claims a chunk of your inheritance?

Although no one tracks the numbers of such marriages, lawyers who handle estate-related litigation say they are seeing increasing numbers of "predatory unions," as life spans increase and dementia becomes more common.

"Let's face it—baby boomers are heading into old age," says Susan Slater-Jansen, an estate-planning attorney at Kurzman Eisenberg Corbin & Lever in White Plains, N.Y. "It's going to be an increasing problem."

The consequences can be difficult to avoid. Texas has no particular statutory method of unwinding such marriages. Placing an elderly parent under a guardianship before such a marriage occurs is an option, albiet expensive

Texas Estate Dispute Lawyer

Wall Street Journal highlights power of attorney abuse

J. Michael Young — Thu, 26 May 2011 19:54:51 -0500

The Wall Street Journal recently published an article entitled, Power Grab:

A time-tested method to protect assets as people age is starting to blow up on baby boomers.

The "power of attorney," a legal arrangement that helps older people turn over management of their finances or other business matters to family members or friends, is emerging as a vehicle for fraud.

Not long ago, such documents were rarely challenged or exploited. But prosecutors and elder-law attorneys say the number of cases of adult children purloining assets from parents' accounts is rising. That is prompting lawmakers to turn their attention to power-of-attorney abuse—often the first step in a swindle.

Powers of attorneys are often drafted by Texas estate planners for clients. Unfortunately, there are few effetive safeguards to prevent fraud by a loved one or confidant. I have seen cases where hundrends of thousands of dollars have been stolen, effectively with the stroke of a pen.

Texas Breach of Fiduciary Duty Lawyers

Update on San Antonio estate battle

J. Michael Young — Sat, 23 Apr 2011 15:04:11 -0500

According to the San Antonio Express News, a partial settlement has been reached in the battle over Leo Block's estate. The settlement resolves the dispute between Mr. Block's children and has widow, along with claims involving various charities.

Interestingly, a battle still looms between the widow and the attorney who the children had accused of helping her obtain most of the estate. As is not unusual in contested estates, passions have become inflamed:

When Boyd deposed Block last month, the fireworks went off repeatedly as she called him a thief and a liar.

“You are the most unethical, you are the most dishonest, no-heart-and-soul human being I've ever known in my lifetime,” she told Boyd before the deposition even got rolling.

At one point, Boyd apparently felt threatened, but she dismissed this with the remark, “Can I assure Stephen that I'm not going to kill him? ... I wouldn't even waste the money on a bullet.”

With the estate dwindling, I'm guessing the rest of the battle is eventually resolved.

Texas Will Contest Lawyer

Mickey Rooney testifies regarding elder abuse

J. Michael Young — Thu, 03 Mar 2011 11:19:44 -0600

In my practice in Texas, I have seen what I consider egregious cases of elderly persons asked (forced?) to sign important legal and financial documents while under duress or when suffering from dementia. The effect is that the person signs away hundreds of thousands of dollars, either immediately or upon their death. Sometimes the wrongdoer is a caregiver, sometimes a girlfriend/boyfriend, and sometimes a close family member.

Mickey Rooney gave some compelling and emotional testimony before the Senate Special Committee on Aging. He was speaking in support of Senator Herb Kohl's “Elder Abuse Victims Act." According to Bloomberg, Rooney testified to what he called "emotional blackmail" of elders:

“My money was stolen from me, by someone close . . I was eventually and completely stripped of the ability to make even the most basic decisions in my own life.”

Rooney has alleged that he was physically and financially abused by his stepson.

Family members, attorneys, physicians, ministers, and financial advisors should be on the lookout for such abuse. Furthermore, prosecutors should take financial abuse cases more seriously. Prosecution is the only real remedy if the money has been stolen and spent. At that point, civil litigation is often impractical.

Texas Breach of Fiduciary Duty Attorney

San Antonio estate battle

J. Michael Young — Sat, 05 Feb 2011 15:56:19 -0600

According to the San Antonio Express News, a battle is raging over the estate of San Antonio businessman and philanthropist Leo Block. Litigation is not surprising given the following:

1) Mr. Block was rich

2) He married only about a year before his death, allegedly without informing his closest family

3) The alleged involvement of a twice disciplined lawyer; and

4) The wife allegedly taking a $37,500 monthly "salary" and unsecured loans in excess of $217,000 from Mr. Block.

Given the above allegations, it isn't surprising there is a will contest and allegations of elder exploitation and abuse. I'm frankly also not surprised there are allegations of wrongdoing against Mr. Block's caretakers as well. Caretakers are often in the best position on a daily basis to influence an elderly person.

Texas Will Contest Lawyers

The "common law" spouse in Texas

J. Michael Young — Sat, 15 Jan 2011 15:46:58 -0600

An issue that sometimes arises in Texas estate litigation is a claim of common law marriage. These claims can be very important, as spouses are often entitled to certain rights and benefits not allowed to boyfriends/girlfriends. Most notably, a spouse has a lifetime estate interest in the homestead, even if it was the separate property of the deceased.

Texas recognizes both formal and informal marriages. Formal marriages are the ones where a marriage license is obtained and a ceremony performed. Informal or "common law" marriages are ones in which the couple live together as husband and wife and hold themselves out to the community as married. The formal elements of a common law marriage include: (1) the man and woman agreed to be married; (2) after the agreement they lived together in this state as husband and wife; and (3) represented to others that they were married. (Texas Family Code - Section 2.401(a)(2).

Of course, the proof available for each of these elements will vary by case. Documents such as tax returns and account applications provide important evidence. Testimony from witnesses in the community can also be important. A recent Texas case, In re Marriage of Warren, addresses the proof necessary to meet that third element. In Warren, the Waco Court of Appeals held that references to each other as husband and wife must be consistent:

We find that the element of “holding out” requires more than occasional references to each other as “wife” and “husband.” Flores v. Flores, 847 S.W.2d 648, 653 (Tex.App.-Waco 1993, writ denied); (no evidence of holding out where woman introduced man as her husband to two or three friends, told a few others that she was married, and wore wedding band given to her by man). . .(“[I]solated references to each other as husband and wife alone do not establish a holding out[.]”). However, a “couple's reputation in the community as being married is a significant factor in determining the holding out element.” (Evidence of four occasions on which wife or her alleged husband introduced each other as husband or wife as well as an AARP enrollment form that showed her as man's wife that the alleged husband admitted signing insufficient to raise fact issue on element of holding out.).

Therefore, isolated representations to others that the couple was married are not sufficient to prove common law marriage.

Texas Estate Litigation