Bill of Review

Bill of Review

by | Last updated Nov 1, 2022 | Heirship, How to probate a case, Inheritance

Bills of Review in Texas

When a case doesn’t turn out the way you want in the trial court, you appeal to the court of appeals. But what can you do if you didn’t know about the case or didn’t learn of a trial setting until an appeal was too late? A bill of review allows you to bring the problem to court. Texas has two types of bills of review, an equitable bill of review and a statutory bill of review. The difference between the two was highlighted in a recent case.

In Gill v. Bordokas, 14-21-00356-CV. from the Houston 14th court of appeals, a man died intestate. One of his daughters filed an application to determine heirship where she alleged that he was not married and that she and her siblings were his only heirs. Within the time allowed, a woman filed a motion for new trial claiming that she was the common-law wife of the man. The woman did not request a hearing and the motion for new trial was eventually overruled by operation of law. Seventeen months later, she filed a statutory bill of review asking the court to overturn its order on heirship. The judge denied the bill noting that she did not pursue her motion for new trial when she could have. The alleged common-law wife appealed.

Equitable Bill of Review

The appeals court first discussed the court’s holding that the woman was not diligent. It listed the requirements for an equitable bill of review which requires diligence.

To obtain an equitable bill of review, a petitioner must generally plead and prove the following three elements: (1) the petitioner has a meritorious claim or defense to the judgment; (2) the petitioner was prevented from making that claim or defense because of official mistake or because of the opposing party’s fraud, accident, or wrongful conduct; and (3) the petitioner’s inability to make the claim or defense was unmixed with any fault or negligence on the petitioner’s own part...When cases involving res judicata have arisen in the context of an equitable bill of review, there is normally a failure by the petitioner to satisfy one of these three elements.

However, the court stated that the alleged common-law wife filed a statutory bill of review, not an equitable one.

Statutory Bill of Review

But this case involves a statutory bill of review, which Gill sought under Section 55.251 of the Texas Estates Code. That statute provides that “an interested person may, by a bill of review filed in the court in which the probate proceedings were held, have an order or judgment rendered by the court revised and corrected on a showing of error in the order or judgment, as applicable.” See Tex. Est. Code § 55.251(a); see also Tex. Est. Code § 22.029 (defining “probate proceedings” as “a matter or proceeding relating to a decedent’s estate,” which includes a determination of heirship). By its plain language, this statute authorizes a bill of review in a probate proceeding merely upon “a showing of error,” without the other elements required by an equitable bill of review. Thus, a petitioner in a probate proceeding can obtain this statutory bill of review even if the petitioner did not exercise the amount of diligence that would be demanded in the context of an equitable bill of review.

There is still a two-year statute of limitation on filing a statutory bill of review, but you don’t have to show that you were diligent.

Texas Supreme Court Holds There Is No Tortious Interference With Inheritance Rights Cause Of Action

Texas Supreme Court Holds There Is No Tortious Interference With Inheritance Rights Cause Of Action

by | Last updated Jan 13, 2021 | Property

Interference with inheritance in Texas

The Texas Supreme Court is loathed to recognize or create a cause of action if there is a question about whether or not one exist. They showed that again when asked if there is a cause of action for tortious interference with inheritance rights. Archer vs. Anderson, No. 16-0256, (Tex. 2018). They said:

Because existing law affords adequate remedies for the wrongs the tort would redress, and because the tort would conflict with Texas probate law, we hold that there is no cause of action in Texas for intentional interference with inheritance.

Problem

If the property you should have inherited is used, stolen or otherwise disposed of by someone, what can you do?

Facts

Archer was a successful oilman with no children. He had a will made in 1991 leaving his property to his brother’s children, his closest relatives (the Archers). The will left a small amount to charity.

After Archer suffered a stroke and testimony indicated that he no longer had testamentary capacity.  Anderson, a friend and attorney, set about to have Archer disinherit his closest relatives and leave all of his estate to charity. A new will was prepared. Testimony showed that Anderson did not like Archer’s relatives.

There were long battles over guardianship between the relatives and attorneys that Anderson hired using a power of attorney he obtained from Archer. As these things are costly:

The Archers agreed to pay their attorneys, who had been charging hourly rates, a contingent fee of 40% of all Jack’s assets recovered.

The relatives eventually won the guardianship and learned about the new will. They filed suit to set aside the new will and continued the suit after Archer passed. A settlement was eventually reached between the charities and the Archers to probate the 1991 will instead of the new will.

The whole process cost the relatives over two million dollars in attorney’s fees. They sued Anderson for intentional interference with inheritance rights to recover those fess and won (they sued Anderson’s estate actually since Anderson had also died in the meantime.)

Anderson’s estate appealed claiming that there was no intentional interference with rights cause of action in Texas.

The court had to decide if Texas recognized a cause of action for intentional interference with inheritance.
Archer vs. Anderson, No. 16-0256, (Tex. 2018)

Remedies available in Texas after this case

In discussing remedies available to the Archers, the Texas Supreme Court said:

Texas law thoroughly governs inheritance through probate and restitution and, as we noted… provides remedies for unfairness, such as a constructive trust. If these remedies are inadequate, it is because of legislative choice or inaction, and filling them is work better suited for further legislation than judicial adventurism.

If assets that would otherwise have passed by donative transfer to the claimant are diverted to another recipient by fraud, duress, undue influence, or other intentional misconduct, the recipient is liable to the claimant for unjust enrichment.

Suits on established torts, such as fraud, conversion, theft, and breach of fiduciary duty, as well as suit under the Declaratory Judgment Act, may also be available. The Court has never been persuaded that the remedies provided by probate law and established torts are inadequate.

”(T)he Archers asserted 3 other causes of action against Anderson—breach of fiduciary duty, intentional infliction of emotional distress, and legal malpractice. The law provided adequate remedies for the Archers’ injuries.

David F. Johnson who writes a blog titled Texas Fiduciary Litigator wrote an article that offered his thoughts on remedies that may be available after this decision:

So, at this point, plaintiffs will have to rely on other causes of action to vindicate their rights when the elderly and infirm are taken advantage of by bad people. It appears that the Court believes that a constructive trust is the principal claim in this situation. For example, in Kinsel v. Lindsey, 526 S.W.3d 411, 423 (Tex. 2017), family members and an attorney convinced an elderly woman, who did not have mental capacity, to execute new estate planning documents and sell a ranch. The ranch would have gone to other family members, but since the ranch was sold, its proceeds (cash) went to the bad individuals. The Court held that a constructive trust, based on a mental incapacity finding, provided an adequate remedy and there was no need to recognize the tort of tortious interference with inheritance rights. Id.

Regarding a constructive trust, the defendants had several arguments for why the trial court abused its discretion in creating a constructive trust in this case. Id. at *31-35. The Court disagreed and held that there does not have to be a breach of a fiduciary duty by the defendants owed to the plaintiffs. Id. There was no duty owed by the defendants to the plaintiff. Id. Citing to an earlier opinion, the Court held: “It is true that we recently recognized that a ‘breach of a special trust or fiduciary relationship or actual or constructive fraud’ is ‘generally’ necessary to support a constructive trust. But in that same case we reaffirmed our statement in Pope that ‘[t]he specific instances in which equity impresses a constructive trust are numberless—as numberless as the modes by which property may be obtained through bad faith and unconscientious acts.’” Id. Even though the defendants did not breach any duty owed to the plaintiffs, the Court concluded that the trial court acted within its discretion in imposing a constructive trust: “We hold the mental-incapacity finding, coupled with the undue-influence finding, provided a more than adequate basis for the trial court to impose a constructive trust.” Id.

But, the issue remains, what if the ranch proceeds had been dissipated? How would the plaintiffs recover what was due to them?

The Court’s opinion in Archer is good news for parties who regularly deal with the elderly and infirm. Trusted advisors have been at risk for tortious interference claims. Attorneys that draft wills and trusts, financial advisors, financial institutions, broker/dealers, insurance agents, accountants, and others who provide advice have been at risk for tortious interference claims. For example, the Archers sued Anderson, who was an attorney. The Kinsels sued Jackson Walker, who were attorneys, for tortious interference. The risk of such a claim is now gone. Of course, creative plaintiffs may think of other claims and theories to bring trusted advisors into litigation against the “bad guy” that influenced an elderly or infirm person. Claims such as conspiracy, aiding and abetting breach of fiduciary duty, and knowing participation in breach of fiduciary duty, may be raised under the correct circumstances.

Ruling

Based on the facts of the case and applying Texas law, the Texas Supreme Court held that Texas does not recognize the tort of intentional interference with inheritance. The court disapproved of all court of appeals decisions that have held otherwise.

What Happens When You File An Inheritance Dispute In The Wrong Texas Court

by | May 28, 2017 | Contesting wills, Procedure, Property

Filing an inheritance dispute in the wrong Texas court can be fatal to your claim!

Facts

A recent court of appeals decision illustrates what happens when you file an inheritance dispute in the Wrong Texas Court. An elderly Texas man had nine children. In the last few years of his life, one of his children gained control of the man. She obtained a power of (more…)

Should You Tell Your Children What They Will (Or Won’t) Inherit?

by | Dec 5, 2013 | Children, Property, Spouse

Deborah L. Jacobs, a staff writer at Forbes, wrote an article where she listed seven reasons why you should tell your children what they will or won’t inherit. While this is a difficult conversation especially as you age and become more dependent on your children, it is one that should take place. Read her article to learn why.

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.

Under the “slayer rule” can you inherit from someone you murdered if your are found incompetent?

Under the “slayer rule” can you inherit from someone you murdered if your are found incompetent?

by | Last updated Dec 27, 2021 | Contesting wills, Probate, Procedure, Property, Wills

The “slayer rule” is a rule that some states recognize prevents someone convicted of causing death from later profiting by inheriting from the deceased victim. Texas does not recognize the slayer rule except for insurance proceeds, as I’ve written before. In fact, Texas has a constitutional provision that states that a person’s inheritance rights can’t be denied because of a crime that he committed. But, Texas accomplishes the same result, but it requires that the heirs take some affirmative action.

In an article on recordonline.com, Bonnie Kraham, an attorney practicing elder law and estate planning with the Ettinger Law Firm in New York, wrote about the slayer law in New York and how it intertwined with the “Son of Sam” law that was passed to prevent criminals from profiting from their crimes. In the interesting article, Kraham talked about several possible loopholes and how the courts had dealt with them. One of those loopholes is set out in the title, e.g., what if you’re found not guilty by reason of insanity. Can you inherit then? What if you kill you mother-in-law who leaves everything to your wife then your wife dies? Can you inherit your mother-in-law’s property that way? Kraham points out that the courts found ways to apply the slayer rule to these cases even though they were not exactly slayer rule cases. The article is fascinating reading for this dark area of inheritance law.

In Texas, the other family members must file suit to prevent the slayer from inheriting. If your attorney is not familiar with Texas inheritance law and files suit under the slayer rule concept, you will find yourself quickly out of court.

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. We are Texas inheritance lawyers and would love to learn about your case, and there is no fee for the initial consultation.

 

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