Void Versus Voidable Marriages

Void Versus Voidable Marriages

by | Last updated Mar 1, 2023 | Contesting wills, Grounds, Probate, Spouse, Time limits

Void versus Voidable

In a recent Texas case, Allebach v. Gollub, 14-22-00272-CV, the issue of void versus voidable marriages came up. There is a difference in the way the courts treat void marriages as opposed to voidable marriages. A void marriage is just that, void. A voidable marriage is one that can be declared void but someone must take some action to get it voided.

A man remarried after his wife died. When the man died, the new wife filed a new will for probate that left most of his estate to her. The Man’s children from the first marriage contested the will on the basis that the man lacked the testamentary capacity to make a new will. They also alleged that the marriage to the new wife was void. It was void, according to them, because the new wife was the daughter of their father’s biological sister – she was his niece. The new wife said the children were too late to contest the marriage because they didn’t complain about the new marriage until four years after the man died.

Is it too late?

There is a provision in the Texas estates code, §123.102, that says an interested party must contest a marriage within three years of the date of death of the Decedent. The subchapter is titled “Proceeding to Void Marriage Based on Mental Capacity Pending at Time of Death.”

The new wife said that this provision applied and since the children had not filed their motion to void the marriage within three years, the limitations of that provision applied and they were too late.

The court examined §123.102 and found that it applied to voidable marriages but not void marriages. The court explained that the marriage to a close relative was void and not voidable. Different rules are applied to void marriages. The court pointed out that:

And under our common law, such suits may be brought “by anyone, at any time, directly or collaterally.” See Simpson v. Neely, 221 S.W.2d 303, 308 (Tex. App.-Waco 1949, writ ref’d)…Thus, the limitations provision contained within Section 123.102 should only be understood to apply to a challenge to a marriage made voidable on the ground of mental incapacity. This understanding comports with the plain language of the statute, and it also preserves the longstanding common law rule that challenges to void marriages are not subject to limitations.

When you need to contest a marriage of someone who dies, you have to know the difference between void versus voidable marriages. If the marriage is void, as it was here, it can be contested at any time by anybody. However, if you are contesting the marriage because a person lacks mental capacity, you have to contest it within three years of that person’s deat.

Who Can Contest a Texas Probate?

Who Can Contest a Texas Probate?

by | Last updated Nov 5, 2022 | Contesting wills, Procedure, Spouse, Who

Who Can Contest a Texas Probate

Background

In order to contest a Texas probate, you have to have standing. Standing means a person has a right to bring a lawsuit in Texas. To have standing in a Texas probate proceeding, you have to be an interested party.

Facts

In a recent case out of the Fort Worth court of appeals, the issue of standing was the central issue. 02-21-00290-CV. In this case, a man died in an accident. His common-law wife, Ms. Pachecano, had three suits; a worker’s compensation case, a wrongful death and survival action, and a probate case seeking to be appointed administrator of the husband’s estate. In the worker’s compensation case, the insurance company balked because of the alleged common-law marriage. Ms. Pachecano settled the worker’s compensation case to get the proceeds for her children. She signed papers that she was not a legal beneficiary.

When Ms. Pachecano filed the probate case to be appointed administrator of her husband’s estate, the defendant, Jackson, intervened in the probate case. Jackson claimed that because Ms. Pachecano had said in the worker’s compensation case that she was not a legal beneficiary, she couldn’t participate in his probate case—the probate court denied Jackson’s intervention. Jackson appealed. Ms. Pachecano did not challenge Jackson’s standing to be involved in the probate case until after he appealed.

Appeal

The court of appeals affirmed the trial court, stating:

Because Jackson was not an interested person, Ms. Pachecano’s argument continues that Jackson lacked standing to intervene in the heirship proceeding that she filed. We agree that the question of whether a person is interested implicates standing. As explained below, Jackson as a defendant in a wrongful-death and survival action is not an interested person in an heirship determination; thus, Jackson lacked standing to intervene. Further, Jackson’s arguments regarding why it had standing—whether an interested person or not—are unpersuasive.

Ms. Pachecano did not challenge Jackson’s standing to intervene in the probate court. That failure, however, is not a waiver of a jurisdiction-based contention, such as standing.

Signing a Will in All the Wrong Places

Signing a Will in All the Wrong Places

by | Last updated Apr 19, 2022 | Contesting Wills, Contesting wills

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

by | Last updated Mar 2, 2022 | Contesting Wills, Contesting wills, Duties, Procedure, Trustee, 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.

How do I claim my inheritance Texas

How do I claim my inheritance Texas

by | Last updated Jan 6, 2022 | Contesting wills, Heirship, Inheritance

Claiming an inheritance in Texas

An inheritance can never compensate for the death of a family member. But inheritance is not about greed; it is about custody and control of your property.

Claiming an inheritance in Texas is usually straightforward if you are a named beneficiary in the will. The executor or administrator named in the will and appointed by the court gathers the property, pays the debts of the estate, and distributes the property to the beneficiaries. As a beneficiary, you do not normally need to do anything.

Problem – no will

Problems develop when there is no will, or you feel the will was unfair.

If there is no will, the court must determine who are the beneficiaries and what part of the estate they each own. Often, if you are not close to your relative who passed away, the local family will “forget” to tell the court that you are an heir. If you are illegitimate, the family may try to prevent you from receiving your inheritance. And, if you just discovered your relative through DNA, that brings up a new set of problems that you will need help with.

If there is an unfair will that has been offered for probate, you will need to contest that will.

Problem – Who are the heirs.

If there is no will or if there is a will that doesn’t dispose of all of the property, then the property goes to the decedent’s heirs. Who those heirs are and getting them their inheritance requires an attorney who handles inheritance disputes.

The local family may forget to mention an heir, they may try to keep a distant heir from receiving their property, and heirs found through DNA cause other problems. In all these cases, the heir needs to have an attorney helping them obtain custody and control of their property.

How long does a beneficiary have to claim their inheritance?

If there is a will, a contest must be filed with two years of the date the will was admitted to probate. Not two years from death but two years from the date the will was admitted to probate.

If there is no will, or the will doesn’t dispose of all of the property, then an heirship proceeding needs to be filed. There is no time limit to file an heirship proceeding unless the decedent died before January 14, 2014. In that case, you need to talk to an attorney who is familiar with heirships to see if you can still file for your heirship.

How to resolve inheritance disputes?

Many inheritance disputes can be settled. We try to settle a case if possible because of the uncertainty of jury trials. But, when a case can’t be settled, we are experienced trial attorneys with many years of experience.

Remember

The property you inherit is your property. You are not trying to get something from someone else. You just want custody and control of your property.

WHAT CONSTITUTES A SIGNATURE ON A WILL

WHAT CONSTITUTES A SIGNATURE ON A WILL

by | Last updated Dec 19, 2020 | Contesting wills, Wills

What constitutes a signature

A holographic will is one that is wholly in the handwriting of the testator and signed by him. What constitutes a signature is often contested.

Texas recognizes holographic wills but other states do not. The difference between a holographic will and a typed or printed will is that the typed or printed will has to be attested to by two credible witnesses. Holographic wills do not need to be attested.

Any will whether holographic or regular has to be signed by the testator. When documents are offered for probate as holographic wills, one of the problems that comes about is whether it was signed or not.

In a 2020 case in Texas, a document that was handwritten by the decedent was offered for probate as his holographic will. There was no signature on the document, however, in the body of the document the testator did write “R. Hohmann Estate.” 04-20-00237-CV.

The proponent of the document as a holographic will claimed that that was a sufficient signature. Those contesting the document claimed that it was not and since the testator did not sign or initial the document anywhere, it did not meet the requirements of the holographic will. The court ruled that “R. Hohmann Estate” was not a proper signature.

“Because nothing in the written instrument indicates the phrase “R. Hohmann Estate” expresses Raymond’s approval of that document as a whole…” 

So, what is a valid signature on a holographic will? An X on a document by a person who could not read or write the English language was a sufficient signature. Likewise, a will that started out “I, JP Dawson, being of sound mind… Make this my last will and testament” satisfy the requirements of the signature.

I have written previously about riding on the back of a greeting card that was just initialed that was found to be a valid holographic will. You can read about that case here.

Every case is different and whether a document is a will depends on whether it disposes of property on death and is signed by the person whose will it is claimed to be.

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