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.

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

Do All Heirs Have To Join A Will Contest?

In Rem Proceedings

Will Contest in Texas are in rem proceedings which means that notice to all the heirs is not required. It is up to each interested party to keep themselves apprised of the status of any probate case. Tennessee is also an in rem state as far as contesting a will is concerned.

Do All Heirs Have To Join A Will Contest in Texas?

A will contest may be brought by anyone interested party, and all other interested parties are free to join the contestant, join the proponent, or stand aloof. But, if they don’t join and there is a settlement agreement, they may be left out as stated by the Tennessee Supreme Court; and see E2016-02497-COA-R3-CV.. Those that join the will contest may settle and if they do so in good faith, the compromise of the will contest will not inure to the benefit of those heirs not participating. The heirs not involved in the suit may lose their inheritance unless they can show some form of bad faith by the parties to the suit. In 2017, a Pennsylvania Superior Court also held that an heir who did not participate in the will contest and was left out of a settlement agreement, could not do anything about it. The heir would have received his share if he had participated in the will contest but since he did not participate, he could not challenge the settlement that excluded him. 2620 EDA 2016.

What You Should Do

If someone you love has died and there is an inheritance dispute between the heirs, all heirs should participate in the proceeding. If an heir does not join, there is a chance that they will lose an inheritance that is rightfully theirs.

Can Minors Contest a Will?

Yes. A minor can contest a will. Usually, a parent will begin contesting a will as “next friend” of the minor. That is the same procedure used in Texas for all lawsuits where a minor is a party. Someone may also be appointed as guardian of the child and start a challenge to a will. What happens if no will contest is filed? In that case, the minor has two years after he reaches eighteen to begin contesting the will. If the person doesn’t start the will contest with two years of reaching eighteen, then he can’t contest it thereafter because of the statute of limitations.

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.

How much time do you have to get a Court to construe a will?

When a will is not being contested but there is a disagreement of how the will should be construed, a person has four years before action needs to be taken.

In a large estate, a handwritten will gave a ranch to the decedent’s third cousin. This provision incurred a large tax. The will had a provision that all taxes were to be paid out of the residuary bequest. The residuary bequest is that part of a will that says something like “I give everything else to …” The residuary beneficiaries under the will were a museum and a university. When the beneficiary who received the ranch asked the residuary beneficiaries to pay the taxes on the ranch transfer, they refused. A long court battle ensued. Eventually, the Courts determined that the third cousin and not the residuary beneficiaries were responsible for the tax based on the language in the IRS Code.

The Appeals Court added a footnote that they weren’t deciding the issue of whether or not the third cousin was entitled to reimbursement from the residuary beneficiaries under Texas law based on the will but just what the Federal Tax Code required. Using this footnote, the third cousin filed a declaratory judgment action under Texas law seeking to get reimbursed by the residuary beneficiaries based on the provision in the will that said all taxes were to be paid out of the residuary clause. The Court noted that it had been more than four years since the dispute was known to the third cousin and that his claim was too late. They upheld the Statute of Limitations claim raised by the residuary beneficiaries. The first court case lasted so long that limitation had run on the Texas suit. Both claims probably should have been brought as alternative claims in the first suit. 362 /3 134.

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.

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