What You Need to Know about the Burden of Proof in Contesting a Will

What You Need to Know about the Burden of Proof in Contesting a Will

Will Contest in Texas

In Texas, when someone dies, they may leave behind a will. Sometimes, people may disagree about what the will says or whether it is valid. Then, they may go to court to ask a judge to decide. Who has the burden of proof at this stage can be important.

This is what happened in a case called Castello v. Castello, 03-22-00012-CV. In this case, a man named Frank Castello died in 2018. He had a wife named Cindy and three children from a previous marriage. He also had a will that he made in 2012. In his will, he said that he wanted to give his wife the right to use his property for her life, but after she died, he wanted his children to get everything. He also chose his son Mark to be the executor of his will. The executor is the person who is in charge of carrying out the will.

The Contest in Castello

Cindy contested the will. She said that Frank did not have the mental ability to make a will in 2012. She said that he had a stroke in 2006 and that his condition got worse after that. She said that he could not remember things, recognize people, or make decisions for himself. She also said that she had another will that Frank made in 2009. In that will, he gave her more property and less to his children. Cindy wanted the 2009 will admitted to probate.

Mark said that Frank did have the mental ability to make a will in 2012. He said that he talked to Frank about his wishes and that Frank understood what he was doing. He also said that the will was signed by Frank and two witnesses who said that Frank was of sound mind. He asked the court to admit the 2012 will to probate. Probate is the process of proving that a will is valid and following its instructions. Who had the burden of proof would be important in deciding this case.

Trial Court Decision

The trial court had to decide who was right. The court looked at the evidence that both sides presented. Mark had the 2012 will, the affidavit of the lawyer who drafted the will, and a deed that showed that Frank sold some property in 2012. Cindy had her own affidavit and some parts of the lawyer’s deposition. A deposition is when someone answers questions under oath before the trial.

The trial court ruled that Mark was right. The court said that the 2012 will was valid and that Frank had the mental ability to make it. The court said that Cindy’s evidence was not enough to show that Frank was not capable of making a will. The court admitted the 2012 will to probate and dismissed Cindy’s claim.

The Appeal – Burden of Proof

Cindy was not happy with the court’s decision. She appealed to a higher court. She said that the lower court made a mistake. She said that she did have enough evidence to show that Frank did not have the mental ability to make a will in 2012. She said that the court should have let a jury decide the case.

The higher court agreed with Cindy. The higher court said that Cindy’s evidence did show that there was a question of fact about Frank’s mental ability. A question of fact is something that is not clear, and that needs to be decided by a jury. The higher court said that Cindy’s evidence showed that Frank’s physical and mental health had been declining since his stroke in 2006 and that he had Alzheimer’s disease, memory problems, and confusion. The higher court said that this evidence could be used to show that Frank did not have the mental ability to make a will in 2012. The higher court said that the lower court should not have decided the case by itself. The higher court said that the case should go to a jury trial. A jury trial is when a group of people listen to the evidence and decide who is right.

The higher court reversed the lower court’s decision and sent the case back for a jury trial. The case is not over yet. Cindy and Mark will have to present their evidence to a jury and let them decide who gets what after Frank died.

Burden of Proof

The higher court based its opinion on who had the burden of proof. The proponent, Mark, had the burden of proof if the will was contested before it was admitted to probate. Cindy would have the burden of proof if the will was contested after the will was admitted to probate. Because the will was contested before it was admitted to probate, Mark had the burden of proof. Since Cindy put on some evidence of mental incapacity, the trial court was wrong to grant a summary judgment without a jury trial.

Lesson to be learned

A person thinking about contesting a will needs to act quickly. Cindy contested the will early, before it was admitted to probate, and therefore, Mark had the burden. If Cindy had waited until the will was admitted to probate, she would have the burden of proof to show lack of mental capacity. Her evidence may not have met the burden of proof standard.

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.

Oral Statements by the Testator about a Texas Will

When a person tells someone how he wants his property handled when he dies but he has a written will or trust, the oral statements will not change how his property is handled if the will or trust is unambiguous.

Problem

Someone testifies in a Texas will or trust contest that the testator told them how he wanted his property distributed. The will or trust of the testator specifies a different way to distribute the property. What effect do the testator’s statements have on the Texas will or trust?

Facts

In her lawsuit, Blanca alleged that when Frank decided to sell the Ranch, he told family members they would be given an opportunity to match any offer he received.

Blanca filed the underlying lawsuit seeking a temporary restraining order and injunction to prevent Frank from conveying the (property based on the statements by the testator).

The court had to decide if or how this evidence should be treated.

ESTATE OF RODRIGUEZ, 04-17-00005-CV, (Tex. App. – San Antonio January 10, 2018)

Trust versus Will in Texas

Since this case dealt with a trust, the court stated the Texas’ rules for construing trusts.

The same rules of construction apply to both wills and trusts. The construction of an unambiguous trust instrument is a question of law for the trial court.

An appellate court may not focus its attention on what the testator intended to write, but on the meaning of the words he actually used.  That is, we must not redraft a trust instrument to vary or add provisions under the guise of construction of the language of the trust to reach a presumed intent. No speculation or conjecture regarding the intent of the testatrix is permissible where, as here, the will is unambiguous, and we must construe the will based on the express language used therein.

This court must harmonize all terms to give proper effect to each part of the instrument; in construing the instrument, we must give effect to all provisions and ensure that no provisions are rendered meaningless.  Provided the language of the instrument unambiguously expresses the settlor’s intent, there is no need to construe the instrument because “it speaks for itself.”

What are the rules for construing a trust in Texas?

ESTATE OF RODRIGUEZ, 04-17-00005-CV, (Tex. App. – San Antonio January 10, 2018)

Ruling

Based on the facts of the case and applying Texas law, the court found that the trust stated how the property was to be handled and that any statements by the Testator to the contrary were to be disregarded.

Notes

There are some Texas cases where a will or trust was ambiguous and statements by the Testator were used to determine what he meant. In this case, the trust was not ambiguous.

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Oral Statements by the Testator about a Texas Will

Can A Will Be Signed By Initials In Texas

Can A Will Be Signed By Initials In Texas

Can a will be signed by initials in Texas?

What happens if instead of signing his name, the testator just initials the document?

Texas courts have been lenient regarding the location and form of a “signature.” They have approved an X as a sufficient signature on an attested will. The most important factor is that the testator intended his mark to constitute his signature. A signature by initials executes a will if the instrument is testamentary in character and if the testator meant his initials to be his signature. 862 s.w.2d 8.

 

What are the requirements of a will in Texas

Texas requires that a will be in writing and signed by the testator or signed by another person on behalf of the testator and in the testator’s presence and under the testator’s direction.

Will contest in Texas

If someone is contesting a will in Texas and contends that the initials or the mark are not a sufficient signature, the issue at trial will be the testator’s intention when he initialed or put his mark on the document rather than whether or not the initials or the mark constitute a valid signature.

Removal Of Executor In Texas

Removal Of Executor In Texas

Grounds for removal of an executor in Texas

A Texas executor, administrator, trustee, or other fiduciaries can be removed by the probate court but not because the beneficiaries under the will don’t like him. A Texas executor can only be removed for specific reasons that must be pled and proven by the beneficiaries who are seeking his removal. Some of those grounds are gross misconduct, gross mismanagement and a material conflict of interest.

Gross Mismanagement

In a 2015 case from the San Antonio court of appeals, the beneficiaries pled that the executor had not “assiduously pursued settlement of the estate” and that the executor had a conflict of interest with the estate. The application further alleged that “grounds exist for removal of  the independent executor due to misapplication of funds and other fiduciary property, breach of fiduciary duty, and self-dealing in estate property.” The complaint was that the executor had not tried to sell the estate’s only asset, a house and that he had moved in the house and was not paying rent. The executor claimed that the application for his removal did not allege gross misconduct, gross mismanagement, or material conflict of interest as grounds for his removal which are the only grounds for removal. The court ruled that Texas has notice pleadings and that the application in this case while not using the words in the removal statute was sufficient to give the executor notice of why the beneficiaries wanted his removal.

Conflict of Interest

In addition to the pleadings question, the executor alleged that the conflict of interest alleged by the beneficiaries was only a good-faith disagreement regarding the value of the property. The supreme court of Texas has ruled that good faith disagreements regarding the value of the property do not constitute a conflict of interest sufficient to remove an executor. The court rejected the executor’s argument noting that he had moved from a garage apartment into the house, had said that he was going to live there forever, and had changed the locks. The court ruled that these acts were not just good-faith disagreements over the value of the property but were sufficient grounds for the removal of an executor in Texas.

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