Signing a Will in All the Wrong Places

Signing a Will in All the Wrong Places

Where do you sign a Texas will?

In a recent case, 01-20-00073-CV, a Texas will was offered for probate. The trial court did not admit the will to probate because the testator just initialed six pages and did not sign on the seventh page where the document had a space for his signature. The trial court determined that the will was not properly signed. The proponent of the will appealed.

Initials are OK in Texas

The court of appeals reversed the trial court and admitted the will to probate even though it was initialed not signed. The appeals court held that:

“Except as otherwise provided by law,” a will must be: (1) in writing; (2) signed by the testator in person;[3] and (3) “attested by two or more credible witnesses who are least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.”..”Texas courts have been lenient regarding the location and form of a ‘signature.'”…A signature may be informal, and its location of secondary importance, if the maker intended his or her name or mark to constitute a signature expressing approval of the instrument as the maker’s will…”it is necessary that the maker intend that his name or mark constitute a signature, i.e., that it expresses approval of the instrument as his will”…The facts and circumstances surrounding the instrument’s execution may be considered in determining whether the maker intended a testamentary disposition of his property…”The key inquiry, however, remains whether the testator intended the mark to constitute an expression of his testamentary intent.”

Considering this case law, we conclude that Wendell’s initials on pages one through six of his will are sufficient to satisfy Section 251.051’s signature requirement, just as any other mark made by him would be, so long as he “intended the mark to constitute an expression of his testamentary intent.”

The court went on to say that the opponent of the will did not put on any evidence to the contrary.

I have a short podcast on the signing of a will.

Presumption of Undue Influence

Presumption of Undue Influence

Presumption of Undue Influence

A person who is an Executor, Administrator, Trustee, or who has a Power of Attorney is a fiduciary. A fiduciary must act in the best interest of the beneficiaries and show that each of his actions was in the beneficiaries’ best interest. When an action benefits the fiduciary in any way, there is a presumption of unfairness, and the fiduciary may be liable.

David Johnson, an attorney who writes on fiduciary litigation, has an article that addresses the case of In re Estate of Klutts, 02-18-00356-CV, (Tex. App.—Fort Worth December 19, 2019, no pet. history). In Klutts, a son who had a power of attorney helped his mother prepare a new will which benefited the son. When the mother died, he attempted to probate the new will. However, his siblings contested the will. The son asked the court to dismiss the contest because his siblings had no evidence that he unduly influenced his mother. The trial court agreed with the son and rejected the will contest. On appeal, the appeals court reversed.

The appeals court held that because he had a power of attorney, the son had to overcome the presumption of undue influence. Thus, the burden was not on the siblings to prove undue influence but on the son to disprove it.

What can go wrong if you represent yourself – part 2

What can go wrong if you represent yourself – part 2

Representing yourself in court

I have written before about what can go wrong when representing yourself in court. Look at this post and this one. The law refers to you as a pro se litigant.

Many people ask about representing themselves in court. They also want to know how to do it. One of the problems with probate matters involving inheritance issues or contesting a will is that the estate is considered a separate person. So while you can represent yourself in court, you can’t represent the interest of the estate. There were two recent cases dealing with pro se litigants and inheritance issues.

The first one involved a man attempting to probate a will and getting appointed as the independent executor as the will specified. Because he wasn’t an attorney, he could represent himself but could not represent the estate so while the judge did admit the will to probate he refused to appoint the man the independent executor of the estate. 13-17-00555-CV.

The second case involved a man dying during an appeal. The man’s attorney withdrew because he couldn’t get the man’s wife to cooperate with him. The wife attempted to represent the estate and filed the appellate brief. The appeals court dismissed the appeal because the wife was not an attorney and therefore could not represent the estate. 08-20-00052-CV.

Can you represent yourself?

Yes. Is it wise, no. And remember, you can’t represent someone else in court and an estate is someone else so you can’t represent an estate in court, only yourself.

Learn the First Step in Contesting a Will in Texas

What Happens When You File An Inheritance Dispute In The Wrong Texas Court

How bad people use undue influence

How bad people use undue influence

This article is about ways that people exert undue influence in Texas to obtain the property or estate of others.

Undue influence can take many forms. In a 2020 Texas case, Buford, a man with a below average IQ hired a private investigator, Tait, whose name he found in a phone book, to help him. Tait’s assistant was Irene Rueda.

Undue influence example. Tait and Rueda soon began providing Buford with other services, including cleaning, cooking, bill paying, shopping, and running errands. In fact, Rueda testified that she saw Buford almost every day for three years until his death in August of 2015. During these three years, Tait and Rueda submitted numerous invoices to Buford, billing him tens of thousands of dollars for their investigation and other services. In addition, Buford gave both Tait, Rueda, and their family members bonuses and gifts, including a $5,000.00 gift to Tait’s wife, despite the fact that Buford had admittedly never met his wife. In addition, the record contains evidence that Buford made large cash withdrawals from his account during the time that Tait and Rueda were providing services to him, some of which were signed by Tait, acting on Buford’s behalf.

Tait prepared wills

Buford did not have a will when he first met Tait and Rueda. Several wills were prepared by Tait and signed or written out by Buford. The will gave Tait and Rueda all of the real and personal property and $300,000 to Tait and $200,000 to Rueda. The total value was about 2.4 million dollars.

When the will was filed for probate, the cousins of Buford, his closest relatives, contested it. The jury ruled that the will were written under undue influence. Tait and Rueda appealed.

The appeals court, in addition to the above facts, set out the evidence supporting the jury verdict including:

  • Emails from Tait the he was “working” on Buford to make a will.
  • Bills from Tait for helping Buford prepare his will.
  • Tait had taken over virtually all of Buford’s legal affairs.
  • Tait accompanied Buford to every meeting with others.
  • Tait himself admitted that he could influence Buford to add provisions to his will.
  • After making the first will, Buford told someone that he had not yet decided what to do with his property.

Every case is different but undue influence is based on the overall conduct that is taking place and who benefits from it.

If you believe a loved one has been the subject of undue influence, you must act quickly. Remember, the two year statute of limitations for contesting a will doesn’t change even if the will is the result of undue influence.

Undue Influence in Texas can Invalidate Wills, Deeds, and Other Instruments

Relationship Poisoning And Undue Influence

When Can a Texas judge change or reform a will

When Can a Texas judge change or reform a will

Contesting a will in Texas

When can a Texas judge reform a will?

The Texas Estates Code, 255.451, says a Texas judge can reform a will or modified it in certain circumstances. The same is true of a trust. Prop. C. 112.054. In a 2019 case, 06-19-00014-CV, a trust was modified by the trial court. The appeals court reversed the modificaiton.

Facts

A man and woman were married. 06-19-00014-CV. The wife had a child, Edna. The husband adopted Edna. Thereafter, they had two children between them, Ignacio and Esperanza. At some point, they created a trust.

The first Trust article, labelled “Identification,” read, “The Grantors have two children, their daughter, ESPERANZA GONZALES and son IGNACIO G. GONZALES, JR. All references in this Declaration of Trust to the `Grantors’ children’ are to them. The term “children” was never used again. The trust only used the term “descendants” after that. Edna’s name was not in the trust.

There was one blank in the document that said “all of the remaining trust property shall be distributed to the Grantors’ [_____].” Ignacio and Esperanza asked the trial judge to reform the will and fill in the blank with “children.” Edna opposed that and wanted the blank to be filled in with the term “descendants” that was used in all the provisions that disposed of property. The trial court reformed the trust by inserting “children.” Edna appealed.

Ruling

The appeals court reversed. It discussed the law about the ability of a Texas judge’s ability to reform a will or a trust based on a scrivener’s error (a mistake made by the attorney preparing the document as opposed to a mistake by the clients.) They noted that the person seeking the reformation had a high burden. A clear and convincing burden of proof which Ignacio and Esperanza did not meet.

The court agreed that there was a scrivener’s error but it could have been leaving Edna out of the Identification paragraph as well as not filing in the blank. They sent the case back to have these issues tried by a jury.

What should you know

A Texas judge can reform a will. If there is a will or trust that has errors in it, a court can correct those errors in certain circumstances.

Challenging a Joint Account

Challenging a Joint Account

Background

When a person dies, his will determines who gets his property. If he doesn’t have a will, then the law of descent and distribution determines who gets his property. Pay on Death (POD) and joint accounts with right of survivorship are different.

Financial accounts like checking, savings, CD’s, brokerage accounts and retirements accounts are not probate assets and they are not part of the decedent’s property if they have a beneficiary designation. The beneficiary gets the account and they are not divided between the heirs. What happens if you think something is wrong and the decedent was taken advantage of and this type of account should go to probate and be divided among the heirs, not given to the beneficiary? This article will discuss that issue.

Challenging a joint account

Paperwork is not in order

To challenge a POD or joint account with right of survivorship is not easy but there are ways to do it. The first thing to learn is whether or not the paperwork at the financial institution is in order. Texas requires specific words and forms to create such an account and if the paperwork is not in order, the account goes to the estate and not the beneficiary. Where the paperwork is not in order, you can challenge the account based on a fiduciary relationship between the beneficiary and the decedent or challenge the account based on the intent of the decedent to share the account with other beneficiaries. You can ask the probate court to determine who gets the money in the accounts. But what happens if the paperwork is in order?

Paperwork is in order

If the paperwork is in order, you can’t challenge the account based on a fiduciary relationship between the beneficiary and the decedent or challenge the account based on the intent of the decedent to share the account with other beneficiaries. Because the paperwork is in order, other evidence is not admissible to change the account contract.

What can you do? The account can be challenged based on the decedent’s lack of mental capacity to contract at the time the beneficiary designation was changed or added. This is similar to contesting a will based on lack of testamentary capacity. Filing the proper paperwork in the probate court, obtaining admissible evidence and presenting it in the proper manner to the court at the proper time is what needs to be done to challenge these accounts.

Take away

If someone is claiming that they own a financial account because they were designated as a beneficiary, don’t take that on face value. Have your attorney look into the accounts and determine to whom they belong.

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