The evening standard reports that London courts are facing an explosion of will contest cases.
“There has been a huge explosion of inheritance disputes. More people will be aware that they can do something about it when they are cut out of their parents’ will.” “We are seeing an increase in Inheritance Act claims brought by adult children …. claims of this nature will only become more common,”
Ageing Population Cause of Explosion of Will Contest Cases
An ageing population and rising levels of dementia have fueled a sharp rise in will disputes.
“People are living longer and we have a generation of children who are reliant on their parents.”
Some children (and, based on my experience, “friends” and “caretakers”) are taking advantage of the elderly.
The article “warned that a rise in court fees was leading more people to try to represent themselves.” “(T)he end result could be catastrophic for some.” While the court fees are not as high in Texas as they are in the UK, a person trying to represent themselves in a will contest case in Texas may be facing a catastrophe for them and their case.
Everybody knows when you are dead, right? When the question involves when are you dead for probate purposes the answer is not quite so settled. I have written before on this question of when are you dead for probate purposes and those articles are cited at the bottom of this article.
Simultaneous Death Act
The question usually arises because Texas, as most states, has a statute that deals with survivorship when two people die around the same time. In Texas, if you die within 120 hours of another person you are presumed to have died at the same time. Usually when these statutes are invoked, the issue involves close family members like a husband and wife. If the husband and wife die close together in time, the state doesn’t want to require the children to have to file an estate for the father and then put his money into the mother’s estate and then open an estate for the mother and put her money into the estate of the father and then…. you can see the point. The issue is also important in joint accounts with right of survivorship. If the joint owners die close together, what happens to the money. The Simultaneous Death Act resolves that problem. One final issue is what happens when a will speaks to what happenes to the property if the testator and the main beneficiary die in a common disaster. Common disaster means (“[a]n event that causes two or more persons [with related property interests] . . . to die at very nearly the same time, with no way of determining the order of their deaths.”) This last issue relating to the definition of common disaster was the subject of a 2016 case out of the Texas Supreme Court. NO. 14-0406 consolidated with NO. 14-0407.
A husband murdered his wife at 8:59 PM and then shortly thereafter at 10:55 PM killed himself. They had nearly identical wills with provisions relating to what happens to their estate if they died in a “common disaster.” The issue before the court was whether or not these two people died in a common disaster? The trial court had ruled that they did die in a common disaster. The Court of Appeals agreed holding that the homicide-suicide was “a common disaster in spite of the fact that husband did not successfully kill himself immediately” because the shots that killed the husband and wife “were fired in one episode.” The Supreme Court however disagreed and ruled that the husband and wife did not die in a common disaster.
Construing A Will
The Supreme Court said that this was a case of construing a will, plain and simple. While the trial court and the Court of Appeals had discussed the Texas Simultaneous Death Act, the Supreme Court said that that act did not apply because the wills addressed the situation and had to be followed. The court stated that common disaster has a settled legal meaning. One of the requirements is that the order of death must be uncertain. In the case under review, there was no uncertainty as to the order of death. Common disaster fails to encompass unrelated but closely timed deaths. Therefore the doctrine of common disaster did not apply in this case. The provisions in the will dealing with what happens to the property if the husband and wife die in a common disaster never become effective.
I’ve writtenabout how accepting benefits under a will may prevent or estop a person from contesting that will. In a 2014 case a trial court ruled that a party was estopped from probating a newer will and from contesting the older will. The trial court held that the party had accepted benefits under the older will and that estopped him from probating the newer will. The trial court also held that probating the newer will was a contest of the older will which the party could not do because of his acceptance of benefits under the older will.
Accepting Benefits Under Older Will
In this case the San Antonio Court of Appeals overturned the trial court’s ruling that a party could not probate a newer will (more…)
The Texas Legislature has passed and the governor has signed House Bill 3674 which amends §132.001 of the Civil Practice and Remedies Code and states that an unsworn declaration “may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law.” The change goes into effect September 1, 2011. An example jurat is provided.
While Texas wills have never been required to be notarized, the self-proving affidavit has been. It appears that the new law may change that requirement since it specifically mentions affidavits but the cautious attorney will continue to notarize the self-proving affidavit.
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.
Is a forged will good for something? A forged will can be used to determine when the statute of limitations starts running says the San Antonio Court of Appeals.
A man died. A will was offered and admitted to probate. One of the heirs decided that contesting the will was warranted because the will was forged. The jury found the will to be a forgery. The trial court ruled that the testator died intestate. There was no order specifically setting aside the order admitting the will to probate, just an order finding that it was forged.
Some heirs filed an earlier will for probate more than two years after the forged will was admitted to probate. They contended that the testator did not die intestate but that he had a valid will. The court denied the probate of the earlier will. They said that, in reality, the filing of the earlier will was a will contest. Will contest have to be filed within two years of the date a will is admitted to probate. “We hold that section 93 of the Texas Probate Code ( now §256.204 of the Estate Code – the two-year limitations period) applies to those situations where a party attempts to probate an earlier will after a later will has been admitted to probate.”
The court said that even though the first will was forged, the limitations period began to run on the day that it was admitted to probate. Since the earlier will was filed more than two years after the forged will was initially admitted to probate, limitations had run and it could not be admitted. The trial court’s ruling that the testator died intestate stands. 100 S.W.3d 424. I have written an article about filing two different wills for probate. I have also written an article about contesting a will before it has been admitted to probate.
Taking Action Quickly
This case shows again the importance of taking action quickly. If you don’t, you lose your rights. Instead of the estate going to the people mentioned in the earlier will, it went to all of the testator’s heirs because under the ruling, he died intestate. While the reason the court ruled the way it did maybe based on the language “(t)here was no order specifically setting aside the order admitting the will to probate, just an order finding that it was forged,” you don’t want to take any chances. Act quickly.