Articles
Lack of Testamentary Capacity in Texas Will Contests
Russell Aldrich
Jan 31, 2023
Testamentary capacity is a legal requirement for a will to be considered valid and enforceable in Texas. Testamentary capacity means that the person making the will must have the ability to understand the nature and effect of making a will and the property being disposed of at the time of the will’s execution. Lack of testamentary capacity is a common complaint in will contests and can result in the probate court declaring a will invalid. The elements required for testamentary capacity are described in Prather v. McClelland, a seminal Texas Supreme Court decision from 1890. These elements include understanding the nature of the business, the nature and extent of property, the natural objects of one’s bounty, and the mode and manner of distribution. In determining testamentary capacity, Texas probate courts consider several factors, such as age, mental state, medical history, influence of drugs or alcohol, and behavior.
Evidence in Will Contests, Probate Litigation, and Trust Litigation in Texas
Russell Aldrich
Jan 31, 2023
In will contests and other types of probate and trust litigation, the evidence commonly presented includes wills, trusts, estate planning documents, witness testimony, medical records, financial records, expert witness testimony, and evidence of undue influence or fraud. Probate litigation attorneys use various discovery tools – such as requests for production, interrogatories, depositions, requests for admission, and subpoenas duces tecum – to gather this evidence from opposing parties and non-parties to the case. Any evidence obtained must comply with the Texas Rules of Evidence for it to be admissible in court. An attorney experienced in probate litigation will be able to navigate the complexities of these rules to ensure any admissible evidence is duly presented to the judge or jury.
Power of Attorney Abuse in Texas
Russell Aldrich
Jan 31, 2023
A power of attorney (POA) is a legal document that allows a person to give another person the authority to make decisions and take actions on their behalf. Power of attorney litigation arises when there is a dispute over the scope of the powers granted, the validity of the power of attorney document itself, and the unauthorized use of the power of attorney to steal, transfer, or misappropriate the assets of the principal. Power of attorney litigation often goes hand in hand with allegations of undue influence, elder abuse, or financial exploitation of a vulnerable person by one or more individuals. If one or more warning signs indicate that a person is being exploited by a person abusing a power of attorney, you should consult with an attorney with experience in power of attorney litigation to go over your case and explore the available options.
Undue Influence in Texas Will Contests
Russell Aldrich
Jan 31, 2023
Undue influence occurs when a person uses coercion or manipulation to persuade another person to act against their own free will. In the context of a will contest, undue influence can occur when an individual, through the exercise of power or by way of a confidential relationship – causes another to execute a will that they otherwise would not have executed or include provisions in a will that they otherwise would not have included. This article outlines the elements necessary to prevail in a will contest alleging undue influence, the signs of undue influence, and the types of evidence used to prove the existence of undue influence in court.
Probate litigation: An introduction to will contests in Texas
Aldrich Law Firm, PLLC
Dec 23, 2019
A will contest is the process of requesting a court order declaring that the will of a decedent is invalid. If a contested will is found to be invalid by a probate court or other court with probate jurisdiction, the contested will cannot be admitted to probate; in effect, the court order makes it as though the contested will never existed. In Texas, a will may be contested on several grounds, to include fraud, undue influence, and a lack of testamentary capacity.
When can I sue for the mismanagement of a trust?
Aldrich Law Firm PLLC
Dec 23, 2019
A trustee is an individual or a corporation in charge of administering a trust and effectuating the terms contained in the trust agreement. Trustees have significant duties and responsibilities that are enumerated in the terms of the trust document and provided for in Texas statutory and caselaw. A trustee must act prudently and place the interests of the trust beneficiaries above their own. In cases where a trustee fails to carry out the terms of the trust, performs their duties negligently, or misappropriates trust assets, the beneficiaries of the trust may sue the trustee for a breach of fiduciary duty and apply for a court order removing the trustee.
Fiduciary duties in probate administration explained
Aldrich Law Firm, PLLC
Dec 23, 2019
Texas law describes the duties and obligations of executors and administrators charged with the administration of a decedent’s estate. Their duties include the gathering of a decedent’s assets; filing any necessary tax returns; providing notice to creditors and beneficiaries of the estate; filing an inventory of estate assets with the probate court; paying any applicable debts of the decedent and expenses incurred over the course of the probate administration; and distributing the assets of the estate to its beneficiaries or heirs. The beneficiaries or heirs of an estate can seek a court order removing an executor or administrator if they mismanage the estate or otherwise fail to abide by the will’s terms and/or their obligations pursuant to the Texas Estates Code . If the beneficiaries or heirs were harmed by the executor or administrator’s actions, they may also elect to file suit for breach of fiduciary duty and request a judgment for damages and attorney’s fees.
Recent Texas case highlights issues with handwritten wills
Aldrich Law Firm, PLLC
Dec 23, 2019
Texas law provides that handwritten (“holographic”) wills are valid if certain requirements are met. Although permitted by the Texas Estates Code, holographic wills may increase the likelihood of a will contest contesting the validity of the document after the death of the testator. In Amaro v. Gilman & Associates, 15 beneficiaries of an estate filed a will contest alleging that the holographic will of a deceased loved one was a forgery. The judge in the case ruled against the beneficiaries and declared the disputed will to be valid. The beneficiaries then sought, unsuccessfully, to reopen the will contest so they could present the testimony of a handwriting expert.
