Contesting a will with a no contest clause.

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 courts 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.

You can find more information here.

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

Breaching A Fiduciary Duty In Texas

Power of Attorney

A power of attorney in Texas creates a fiduciary duty between the person who holds the power (agent) and the person who gives it (principal.) The agent owes his principal a high duty of good faith, fair dealing, honest performance, and strict accountability. A 2015 case out of Fort Worth dealt with the issue of breaching a fiduciary duty in Texas.

Deed

A man (agent) had his aunt (principal) give him a power of attorney. About a year before the aunt died, the nephew executed deeds to the aunt’s real estate to himself and his son. After the aunt died, a probate was filed. When the beneficiaries of the aunt found out about the deeds, they were understandably upset.

Family Settlement Agreement

Apparently, most of the beneficiaries did not have the money to sue the agent so they entered into a family settlement agreement to give one of the beneficiaries the right to sue the agent for breaching a fiduciary duty in Texas. A suit was filed and (more…)

Elder Abuse Is Increasing

Elder Abuse Is Increasing

Elder abuse is increasing in Texas.

Elder abuse is often at the hands of those closest. In an article in the Arizona Daily Star by Patrick McNamara, which was published on their website, tucson.com, the paper reported that law enforcement is seeing an increase in elder abuse.

Reason that elder abuse is increasing

As our elderly population grows, law enforcement and prosecutors are seeing an increase in the number of incidents of exploitation and abuse against older people. According to the article, law enforcement has seen a nearly 50 percent increase in elder exploitation reports. Financial crimes are taking a toll on lives and pocketbooks reports Constance Gustke in the New York Times. Trusted caregivers – friends and relatives who offer support and guidance – are often the ones at fault. The article states that older adults are appealing – and vulnerable – targets because they have a lot of money that was saved over the years.

Abuse of senior citizens, both physical and financial, has become a growing problem in all states, including Pennsylvania, and it isn’t expected to abate as that state’s elderly population rises reports Matt Miller on pennlive.com. The Pennsylvania Supreme Court is so concerned that it has created a task force calling for everyone from judges to legislators to family members and the general public to get involved. Because elder abuse is increasing, they made recommendations to require banks and other financial institutions to report suspected cases of financial exploitation of seniors along with a proposed expansion of existing law to make it impossible for someone convicted of abusing a senior citizen to later benefit from that victim’s estate.

I have an article on this blog about a case where an adult daughter left her elderly father in the care of a longtime friend while she took a short vacation. In one week, the friend married the father, started transferring assets into joint accounts, and named herself his pension beneficiary. The children learned of the marriage a month later. When they confronted their father, he recalled nothing about it.

Elder abuse is increasing and undue influence is one way bad guys use to abuse the elderly.

Remedies for the victims and their family

What can be done if a family has had an elderly loved one fall victim to abuse? Often when a family learns of elder abuse, it is too late. The bad guy has taken the money and it cannot be recovered. Close monitoring of those who are around the elderly helps but sometimes that is not possible. What if mom or Aunt Sally or Uncle Joe lives in the next city or next county or next state? Sometimes the abuser is a child or other close relative. Since close monitoring is not always possible, a regular review of the elder person’s finances may disclose transactions that need to be pursued. If the abuser has gotten the elder person to write a new will, this may not be discovered until after the elder person dies. The only remedy then is a will contest.

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Contact Us.

By Robert Ray a Board Certified attorney. The foregoing information is general in nature and does not apply to every fact situation. We handle litigation involving inheritance disputes. We don’t prepare wills. We don’t file wills for probate or distribute estates except when we are contesting a will or protecting a will from a contest. We handle a select few cases on contingency. Don’t use a comment to ask a personal question about an inheritance issue because your name and comment will be public. To ask a litigation question and to protect your privacy, click the red button to the right.

Pay On Death Beneficiary Designation

Pay on death beneficiary designationNon Probate Assets

Financial accounts like checking accounts, savings accounts, C.D.’s and retirement accounts are non probate assets. That means that a person’s will does not control who gets the funds. The beneficiary designation on those accounts determine who gets the funds. They do not pass through probate. The same is true of joint accounts with right of survivorship.

Pay On Death Beneficiary Designation

Owners of the financial accounts sign a Pay On Death Beneficiary Designation form POD. The person designated as (more…)

Tortious Interference With Inheritance Rights.

Tortious interference with inheritance rightsWhat is it?

Tortious interference with inheritance rights is a tort where someone does something that has the effect of denying you an inheritance or gift that you should have received. It is a tort just as if someone runs a stop sign and injures you. Both of these actions are torts and you may be able to hold that other person liable for your damages.

It applies when a testator has been induced by tortious means to make his first will or not to make it; and it applies also when he has been induced to change or remake it. It applies when a will is forged, altered or suppressed. It is well settled in Texas that “[a]ny intentional invasion of, or interference with, property, (more…)

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