Background
In Estate of Crawford, 14-17-00703-CV, (Tex. App. – Houston [14] November 9, 2017) the court of appeals ruled that you can waive your right to appeal in a suit contesting a will.
A will was filed for probate by the executor named in the will. Someone else decided to contest the will. The opinion does not set (more…)
An attorney is an agent for the person (principal) that he represents. Agency law imputes the knowledge of the agent to the principal. If an agent knows something, the law says that the principal knows it as well.
An interesting case out of Ohio had the question of do you legally know what your attorney knows come up in relation to a will contest. In Ohio, (more…)
Possibly. I’ve previously written that a divorce voids any will provision in favor of an ex-spouse or his/her family. EC123.001(b), 201.001. If a new will is executed giving the ex-spouse property after the divorce or if the provision in favor of the ex-spouse is added to a will after the divorce, then those provisions in favor of the ex-spouse are valid. Likewise, I’ve previously written that a properly executed codicil republishes the will as of the date of the codicil. 280 2d 731. So, what does this all mean.
Let’s say a couple is divorced. Any provision in their wills in favor of the other one is void. Sometime later, the husband makes a codicil adding a small gift to his church. Because the codicil republishes the will as of the date of the codicil, those old provisions in the will in favor of the ex-spouse that were voided by the divorce now are brought back to life! The ex-spouse may inherit although that is not what is intended. The message for today is to go to your attorney and make a new will after a divorce. Otherwise, things that you don’t want to happen can happen.
Once a will is properly executed, pages cannot be changed or replaced unless the will is re-executed with the same formalities required of a new will. In a case decided in 2013, a Texas Court of Appeals had to decide an issue relating to the time frame in which corrections of some of the pages in a will occurred.
There was no question that the will contain mistakes and that they were corrected. The question was whether the corrections were made after the will was executed or before. The first thing that the court ruled on was who had the burden of proof. They ruled that the person who was claiming the will was corrected after it was executed had the burden of proof. While there was some conflicting evidence, the trial judge ruled that the corrections were made before the will was executed. On appeal, the appeals court ruled that the person claiming that the will was executed before the corrections were made did not meet their burden of proof and therefore ruled against them. No one stated directly that the will was corrected after it was executed. There was some circumstantial evidence that the attorney took the will back to his office at one point, made the corrections and returned but no one said definitely this took place after the will was executed. The will was admitted to probate. No. 05-11-00246-CV.
Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.texasinheritance.com and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation.
A fiduciary owes the highest duty imposed in law to the person (beneficiary) over whose property he has control. A fiduciary might be appointed to administer a trust or handle an estate. The appointment will set out the rights and powers of the fiduciary. Based on these powers, the fiduciary will have the power to make decisions about the best use of the property. These discretionary powers may include the power to sell property, to invest, to rent or to exchange property.
Can a fiduciary delegate these discretionary powers? The general rule is that he can’t. 174/2 963. Usually when the trustee tries to delegate his powers, something bad is happening. For instance, an elderly trustee might be under the undue influence of someone who wants to use the trust property to benefit himself. Another example is where a person who doesn’t know the first thing about being a fiduciary relies on someone who takes advantage of the situation.
There are some cases where the courts have said that a trustee could delegate his discretionary duty. In a case where the trustee and beneficiary were the same person and this person and the trust, through the trustee, also were the guarantors on a note, the Supreme Court held that the beneficiary could not claim that the trustee had no right to delegate his duty to guarantee the note. 586/2 472. While this seems contrary to the general rule, when all the people involved are the same, you’re not going to avoid liability by claiming that you had no right to do what you did.
Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.texasinheritance.com and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation.