Problems filing in the wrong court

Problems filing in the wrong court

What happens if you miss-file your claims

When a case or claim is filed in the wrong court, you may lose your claim without being heard. If your case is dismissed after the statute of limitations has run, you are out of luck no matter how good your claim was.

Necessary Disclaimer: Do not take, or refrain from taking, any action based on what you read. You need to discuss your situation with an attorney who can advise you based on your facts.

If you have a question about a pending or anticipated lawsuit about contesting a will in Texas, use the Contact Us page at the top of the site to see if we can help.

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Filing in the wrong court

In a 2020 case, a man died and his family filed his probate case in the probate court. His wife ( a divorce was pending but was not final so she was still his wife) filed an opposition and also filed a tort suit against the other family members in the probate court asserting claims of business disparagement and intentional infliction of emotional distress. (“the tort case”). The other family members filed a motion to dismiss under the Texas Anti-SLAPP law. The probate judge granted the motion to dismiss the tort suit and ordered the wife to pay attorney’s fees to the other family members. The wife appealed. 4-19-00500-CV.

No jurisdiction

In the appeal, the appeals court ruled that the probate court did not have jurisdiction over the tort suit. Because this decision came more than two years after the claims accrued, it was too late for the wife to refile them in a court that did have jurisdiction. 

The moral of this case?

If you file in the wrong court you may never get your case decided on the merits.

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Who and What we Are

Robert Ray is Board Certified

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).

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What can go wrong if you represent yourself – part 1

What can go wrong if you represent yourself – part 1

Contesting a will in Texas and representing yourself

Representing yourself in a Texas will contest is like operating on yourself. Can you do it? Yes. Is it safe to do it? No.

Necessary Disclaimer: Do not take, or refrain from taking, any action based on what you read. You need to discuss your situation with an attorney who can advise you based on your facts.

If you have a question about a pending or anticipated lawsuit about contesting a will in Texas, use the Contact Us page at the top of the site to see if we can help.

Thanks for visiting!

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What can go wrong if you represent yourself

In a 2020 case, a man contested the will of a woman who he claimed was his common-law wife. Texas refers to these marriages as informal marriages.

He was quickly thrown out of court because he represented himself and did not know what he was doing. When reading the case, it seems that he had a good case or at least a case that could have been tried to a jury. But because he was representing himself and did not know what to do, he lost before the case ever got to a jury. The decision of the appeals court is full of examples of things that he failed to do to be able to maintain his claim. The court was not able to do anything but dismiss his case. 07-19-00283-CV, 07-18-00434-CV.

The moral of the story is this: if you represent yourself, the court cannot give you any help. You have to know what is needed and provide it in a timely manner. If you don’t, your case will be dismissed before anyone decides the merits of your case.

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Who and What we Are

Robert Ray is Board Certified

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).
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We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

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Removal Suits May be Subject to the Texas Anti-SLAPP, TCPA Law

Removal Suits May be Subject to the Texas Anti-SLAPP, TCPA Law

Problems with Removal of Trustee or Executor

Trustees and executors are fiduciaries and owe duties to the beneficiaries of the trust or estate that they are in charge of. If they breach those duties, they can be removed.

The Texas Anti-SLAPP, TCPA, law was established to protect a person’s right to free speech, free association and the right to petition. When a suit is filed and a motion to dismiss under the Texas Anti-SLAPP, TCPA law is filed, the suit stops and the judge must rule on the motion. If he grants the motion, the suit is dismissed and the person who brought the suit is required to pay the attorney’s fees of the person sued. He may also have to pay expenses and sanctions. The law is a draconian sword hanging over suits.

The law has been applied in many different suits like divorce actions, collection suits, contract cases, etc. How far the law reaches is still being ironed out in Texas.

Recently, there was a suit to remove a trustee. Does it apply to removal actions?

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A suit was filed to remove a trustee. The trustee filed a motion to dismiss under the Texas Anti-SLAPP, TCPA, law. You can read about it below.

Suit to Remove Trustee as a Texas Anti-SLAPP, TCPA Claim

Does the Texas Anti-SLAPP, TCPA law apply? Well, in the case, the court assumed without deciding that it did then went on to rule that the people against whom the motion to dismiss was filed met their burden and proved their defense. The motion to dismiss was denied.

If the people who filed the removal action had not met their burden, their removal suit might have been dismissed and they would have had to pay the attorney’s fees of the trustee. Just be aware!

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Who and What we Are

Robert Ray is Board Certified

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).
~

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Let Us Help You

Learn the First Step in Contesting a Will in Texas

The first thing that you must do in Texas when you have an idea that you may be contesting a will is to contact a Texas attorney and you should contact the lawyer as soon as possible.

Since contesting a will is litigation, you need to contact a lawyer who is familiar with litigation. Some lawyers mainly have an office practice where they draft documents like wills and estate plans for their clients and handle cases that do not normally involve litigation. Trials are seldom or never part of their practice.

Other lawyers have litigation practices where most of their cases involve suits filed in court. They may or may not be Board Certified. Since a will contest that can’t be settled involves a suit filed in court, a trial attorney can help you decide if you have a good case. He can also evaluate the possiblity of settling a case without filing suit in court.

Continue here to discuss how to successfully contest a will in Texas

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

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).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Contesting a will with a no contest clause.

Most wills have a no contest clause in them. These no contest clauses are also called in terrorem clauses. I have described these here. Many people ask if these no contest clauses mean that they can’t contest a will. The answer to that question is no.

Courts are reluctant to enforce these clauses because of the chilling effect they have on legitimate claims that the will being contested is not the will of the testator. Imagine a situation where a person has gained undue influence over the testator who then makes a will leaving little to his family and benefiting the person exerting the undue influence. If the family receives anything under the will, they will be afraid that they will lose what little they have if they contest the will. It’s for this reason that court’s are reluctant to enforce these clauses. The legislature also passed a law making these provisions void if the person contesting the will did so in good faith and with just cause. Under that law, even if a contestant loses the will contest, he won’t be denied his inheritance set out in the unsuccessfully challenged will if the court or jury finds he was contesting the will in good faith and with just cause. Of course, if someone is contesting a will without good faith and just cause, the courts may enforce the no contest clause. There are very few cases where the courts have enforced these provisions although there are some.

I have created a podcast about no contest clauses in will. You can find it here.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

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).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Learn How to Successfully Contest a Will in Texas

Learn How to Successfully Contest a Will in Texas

First Thing

The first thing that you must do when you have an idea that you may be challenging a will is to contact a Texas attorney and you should contact the lawyer as soon as possible.

Since contesting a will is litigation, you need to contact a lawyer who is familiar with litigation. Some lawyers have an office practice where they draft documents for their clients and handle cases that do not normally involve litigation. Trials are seldom or never part of their practice.

Other lawyers have litigation practices where most of their cases involve suits filed in court. They may or may not be Board Certified and they may or may not be experienced at contesting a will. Since a will contest that can’t be settled involves a suit filed in court, a trial attorney can help you decide if you have a good case. He can also evaluate the possiblity of settling a case without filing suit in court.

You need to be aware of the Texas probate limits or statute of limitations for contesting a will. If you miss the deadline for filing a will contest, your rights are lost even if you have a perfect case. “A stitch in time saves nine” (it is better to act or deal with problems immediately, because if you wait and deal with them later, things will get worse and the problems will take longer to deal with.)

You also need to be aware of the reasons for contesting a will.

Will a Judge or Jury Decide the Case

This article will discuss what factors go into a successful or an unsuccessful Texas will contest. Will the judge decide the case based on a legal question or will the jury decide the case based on a factual question? The answer to that question depends on the reasons for contesting a will. The first thing to think about is the will itself. Is it a will? Does it meet all the requirements of a will? If there are defects in the will, the judge will rule on those before the case ever gets to the jury and may refuse to admit the will to probate because of those defects. If there are no defects in the will, the case will proceed on and a jury will decide the issues involving the testator‘s mental capacity.  We will first talk about some defects in a will that prevent the case going to the jury then talk about the issues involved in jury trials if there are no defects in the will. We will discuss the facts that will be important to jurors in deciding the case.

Judge Decides Case

Some Texas will contest are determined by the judge based on procedural matters. The cases never get to the jury because the judge decides the case based on one of these procedural issues. Defects in the will are such things as: a document appears to be a will but does not meet the requirements of a will set out in the probate code; or, the will appears to be good but it was not executed with the formalities required of wills. These defects will prevent a will from being admitted to probate in Texas, the effect of which is that the testator dies intestate (without a will.) Regardless of the mental state of the testator, the document offered as a will is not a will and there is nothing for the jury to decide. Likewise, if the Texas probate limits or statute of limitations for contesting a will are not met, the judge will dismiss the contest no matter how valid it is.

Jury Decides Case

If the will is not defective and was executed properly the case will go to the jury. At this point, all Texas will contest come down to the question of the testator’s mental state at the time the will was executed. The jury will decide whether the testator was mentally competent at the time the will was executed or will decide whether or not the testator was under such undue influence that he could not make the will that he wanted to make. Similar issues may be that the will was not actually executed by the testator and is not his will or the testator was operating under an insane delusion or some similar mental defect. Generally, both the proponent of the will and the contestant of the will will have witnesses that testify before the jury. The proponent’s witnesses will state that the testator was mentally competent and the contestant’s witnesses will testify that the testator was not mentally competent. The two parties may even have opposing doctors where one doctor testifies that the testator was competent and the other doctor testifies that the testator was not mentally competent. So if the Texas jury will hear opposing testimony from both sides, what other facts do juries tend to look at in deciding which side to believe? The rest of this article will discuss those facts that influence juries in making their decisions.

Starting Point

The starting point for any Texas will contest is an unnatural disposition of the property. “One of the main objects of the acquisition of property by the parent is to give it to his child; and that child in turn will give it to his, in this way the debt of gratitude we owe to our parent is paid to our children. Thereby, each generation pays what it owes to the preceding one by payment to the succeeding one. This seems to be the natural law for the transmission of property. Any departure from that course, though it may not be uncommon or unusual, is unnatural.” 12-18-00079-CV.

Normally, you would expect  people to leave their property to their spouse and children if they have any and to their nearest relatives if they do not. The disposition of the property in a will to people other than those family members, should cause suspicion. Juries tend to side with family members when deciding will contest cases. Some attorneys studied a number of cases contesting wills in Texas over a significant time period. Their data showed that when there was a will contest between family members and non-family members, the family members were successful more than 90% of the time. That doesn’t mean that every time there’s a challenge to a will between family members and non-family members, the family automatically wins. There may be facts that convince a jury that the testator knew what he was doing when he failed to give his property to family members. Generally however you are in a better starting position if you are a family member rather than a non-family member. What happens in cases where both sides are family members? Again it depends on the facts of the case but in general terms, the jury is going to tend to side with the family members who are seeking a reasonable and equitable distribution of the property rather than a family member who is seeking all or most of the property for themselves or their children. There may be reasons why the testator left all or most of his property in favor of one relative over another but speaking in general terms, juries are suspicious of those transactions and tend to want everything to be fair and square. Along the same lines, if you would expect a child or other family member to inherit the property but the will leaves the property to a more distant relative like a brother or cousin or aunt, that will raise suspicions in the jury’s mind. It doesn’t mean that the will contest will be successful, it just means that the jury tends to lean more one way than another.

The Will Itself

A Texas will made shortly before death is more likely to be successfully challenged than a will that has been in existence for a number of years. Likewise, a will prepared by an attorney and executed in his office is more likely to be upheld than a homemade will or wills downloaded from the Internet or copied out of books.

Contesting a will can be successful if you have good facts on your side as well as being a person who would normally be expected to inherit the property in the circumstances. You may be a grand niece or grand nephew but if you are the nearest relative, you are already in a good starting position to contest a will.

No Guarantees

Contesting a will is just like any other litigation. There is no guarantee of success. Using the information above, you can get some idea of whether or not your contest of a will will be looked at favorably by a Texas jury. Besides the status of the parties and the the will itself, there are procedural problems associated with a successful will contest. Even though you are in the best position to win, you need to select an attorney who is familiar with these cases so that you can present your case to a jury in the best light and have the best chance of being successful. Go to our “Start” page for contesting wills to view the reasons for contesting a will and to get information on the probate limits or the statute of limitations for contesting a will in Texas and other information that you will need.

CAVEAT:

The foregoing is not intended as any legal advice to you but mere observations and suggestions for you to check out and follow up with an attorney.

Your Privacy

We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.

Robert Ray is Board Certified

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).

Robert Ray Texas Inheritance

Click here to email us or to go to the contact form if you want to contact us about a Texas inheritance dispute.

Contesting a will in Texas

Zoom type workshops?

In the age of Covid-19. we have been thinking of having monthly or bi-monthly, free, Zoom type workshops where participants discuss with us issues that are of interest to them. There would be no agenda, we would discuss areas that the participants wanted to discuss. Participants could attend by computer, tablet or smartphone.

This would be a public Zoom type meeting so nothing personal or confidential should be discussed. Just general questions. Personal or confidential questions should be asked by using the Contact Us tab above.

If you think we should start having these workshops, please leave your email so we can notify you?

We will notify you if we decide there is interest in the workshops. Thanks for letting us know.

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