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.
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.
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.
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.
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.
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.
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.
Many wills and trust have no contest clauses, also referred to as in terrorem clauses. These basically say that anyone who contest the will or trust looses their inheritance under the will or trust. People are afraid that they will get nothing if they contest the will.
Are no contest clauses enforceable?
Texas courts don’t like to enforce these forfeiture clauses if there is a reasonable way to avoid enforcement. Heirs getting nothing is not what courts want to see. There are only a handful of Texas cases that enforce these clauses. The majority of cases don’t enforce them. Many courts created a good faith exception. If a contest was brought in good faith, there was no forfeiture. In addition to the good faith exception, one court listed twelve items that do not trigger the forfeiture effects of a no contest clause: (1) to recover an interest in devised property; (2) to compel an executor to perform duties; (3) to ascertain a beneficiary’s interest under a will; (4) to compel the probate of a will; (5) to recover damages for conversion of estate assets; (6) to construe a will’s provisions; (7) to request an estate accounting or distribution; (8) to contest a deed conveying a beneficiary’s interest; (9) to determine the effect of a settlement; (10) to challenge an executor appointment; (11) to seek redress from executors who breach fiduciary duties; and (12) presenting testimony in a will contest brought by other beneficiaries. 01-10-01019-CV.
The Texas legislature adopted the reasoning on good faith and recently updated the law on no contest or in terrorem clauses and the good faith issue. The new law makes it easier to contest wills that have no contest provisions and voids in terrorem clauses in wills and trust if a contest of the willor trust was brought in good faith. In other words, even if the will provides for a forfeiture in the event of a will contest even one brought in good faith, the new legislation voids those provisions if the contest was brought in good faith. Because of this new law, your should not let the existence of a no contest clause in a will keep you from contesting a will if you are acting in good faith and with just cause.
Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization. We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).
If you have questions about how to challenge the will of a loved one for any reason this page will help you get started.
Contesting a Will is Not About Greed
As tragic as it is, abuse against our elders is on the rise. Whether by caretakers, friends, siblings, or even their own children, we are seeing more and more cases of seniors being abused into revising their will. See this articleabout abuse.
We know that this is a painful time for you, and you may be feeling guilty about your need to contest the will, but the first thing you need to know is that in most cases, disputing the legitimacy of a will is not about greed and that it is within your rights to call it into question.
When a new will is created due to this abuse that favors the abuser, often the only remedy is to file a suit contesting the will.
How Contesting a Will Works
If a person makes a will when he or she does not have the mental capacity to do so, or when they are under the control of another person, then the will can be disputed – or contested. When a will is contested, it is because the contestant doesn’t believe it is the true will of the person who created it (the testator).
In other words: if you don’t feel that this is the will your loved one wanted to write, then you may contest it.
In this article, we will give you everything you need to make an informed decision about what to do next, and what lies ahead.
Statute of Limitations for contesting a will (Time Limits)
What happens to the estate if the will is successfully challenged
How to Contest a Will
A general discussion of how to contest a will can be found here. Because of the time limits or statute of limitations for contesting a will and the fact that the estate may be depleted by others taking property from the estate, a will contest needs to be started as soon as possible.
We realize this can be a confusing, frustrating, and emotional process. Below, we have laid out the steps you need to take and how you can take them in order to make the process easier for you.
The law is very strict about the form and execution of wills. A will may be set aside if it isn’t written or executed appropriately.
This usually happens because individuals create the will themselves, rather than through an attorney. There are times, though, that even an attorney does not ensure that everything is in order as far as the law is concerned.
Often, individuals will type out a will on their computer, download a form from the Internet, or copy a form from a book. If any mistakes are made during this process, the will can be set aside.
Testamentary capacity, in essence, is the legal term to describe a person’s legal and mental ability to make, alter or revoke a will.
A person must have testamentary capacity in order for their will to be considered legally valid.
There may be a number of causes – both in legal and in psychological terms – that might diminish a person’s testamentary capacity, but the result of each is often the same: any wills they may have created while lacking testamentary capacity may be overturned.
Whatever the cause, it could mean that the will made in this condition doesn’t follow their true wishes.
Find out what to do if you believe your loved one wasn’t fully aware of their actions when they created their will.
If a person is being controlled or dominated by another person so completely that they aren’t able to create their will according to their wishes, we call this undue influence.
Cases such as these might entail abuse or coercion or just a strong mind over a weak one. Keep in mind that this doesn’t always mean the abuse is physical. If a person is being coerced by emotional or verbal means, it could also be cause to contest the will.
The rest of this article is the old webpage that we had in place of the information that you just read. You can read it although you will see that it is generally a repeat of what has been said. The above information is an easier read and less lawyerly than the paragraphs below but they contain essentially the same information.
This article should be your starting point to learn about contesting wills in Texas. It provides general information about contesting a will. This general article will lead you to specific articles on the site and on our blogwhere you can find more detailed information about the particular question you have concerning will contests.
Contesting a Will is not about greed
Elder abuse is increasing. Often the abuse is by a friend or close relative, even a child. When the abuse involves creating a new will favoring the abuser or disinheriting the family completely or partially, the remedy is a suit contesting the will. If your family has found itself in one of these situations or if a will was made by someone not mentally fit to make a will, you will find information here that will help.
When a person makes a will when he does not have the mental capacity to make a will or when he is so dominated by another that he can’t make the will that he wants to make, a will contest often results. A will is contested because the contestant believes that the will is not the true will of the testator. In other words, it does not represent the true intent of the testator to pass his estate to the people that are the natural objects of his bounty. In this general article, we will discuss reasons for contesting a will (Grounds), limitations for contesting a will (Time Limits), what you need to do to contest a will (Procedure) and what happens to the estate if the contest is successful (Effect of Successfully Contesting a Will).
A will has to be in writing, in the correct form and executed according to the law to be valid. Most of the cases dealing with improper form or execution of a will involve wills that were prepared by individuals instead of attorneys. A person will type out a will on their computer, download a form from the Internet or copy a form from a book. Since the law is very strict about the form and execution of wills, many of these wills are set aside because of mistakes in the form or because of improper execution.
In order to make a will, the testator must have testamentary capacity. That means that he must know what he is doing and also know who the natural recipients of the estate would be. There are variations of testamentary capacity that may be referred to as insane delusion or mistaken in the factum. You can read about the evidence to prove an insane delusion here. The fundamental basis of these claims is that the testator did not have the mental capacity to know what he was doing when he made his will. Therefore, the will is not the will of the testator.
Undue influence means that the testator is so controlled and dominated by another that he can’t make his will the way he wants to but has to make it the way the person who is a dominating him wants him to make the will. Fraud in the inducement is just another type of undue influence.
The time limits, what the law refers to as the statute of limitations, within which a will must be contested are determined by the probate process, not the date of death. In general, you have two years after the will is admitted to probate, not two years after the date of death, to contest it. The time starts to run from the date that the will is admitted to probate. There may be exceptions to this general rule relating to minors and those who don’t know they are heirs.
Additional information on the statute of limitations for contesting wills
Because of the time limits or statute of limitations for contesting will and the fact that the estate may be depleted by others taking property from the estate, a will contest needs to be started as soon as possible.
Additional information on the procedure to contest a will.
When a will is successfully contested, the testator’s prior will is then considered “his will.” If there was no prior will or if it is lost and no one has a copy, the testator is treated as if he died intestate (without a will.) The court will then distribute the estate to those who would take on intestacy.
Click herego to our article about what you need to know about successfully contesting a will
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