Can a Fiduciary delegate his discretionary power to another?

A fiduciary owes the highest duty imposed in law to the person (beneficiary) over whose property he has control. A fiduciary might be appointed to administer a trust or handle an estate. The appointment will set out the rights and powers of the fiduciary. Based on these powers, the fiduciary will have the power to make decisions about the best use of the property. These discretionary powers may include the power to sell property, to invest, to rent or to exchange property.

Can a fiduciary delegate these discretionary powers? The general rule is that he can’t. 174/2 963. Usually when the trustee tries to delegate his powers, something bad is happening. For instance, an elderly trustee might be under the undue influence of someone who wants to use the trust property to benefit himself. Another example is where a person who doesn’t know the first thing about being a fiduciary relies on someone who takes advantage of the situation.

There are some cases where the courts have said that a trustee could delegate his discretionary duty. In a case where the trustee and beneficiary were the same person and this person and the trust, through the trustee, also were the guarantors on a note, the Supreme Court held that the beneficiary could not claim that the trustee had no right to delegate his duty to guarantee the note. 586/2 472. While this seems contrary to the general rule, when all the people involved are the same, you’re not going to avoid liability by claiming that you had no right to do what you did.

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.

What are six common reasons for contesting wills?

Six reasons why people contest wills.A law professor who teaches probate and estate planning has listed six common reasons why people contest wills. Prof. Gerry Beyer’s paper is here. The paper also recommends a proper procedure for the execution of wills. It is worth reading. The six common reasons for contesting a will listed by Prof. Beyer are:

  1. Disinheritance of Close Family Members in Favor of a Distant Relative, a Friend, or a Charity.
  2. Unequal Treatment of Children.
  3. Sudden or Significant Change in Disposition Plan.
  4. Imposition of Excessive Restrictions on Bequests.
  5. Elderly or Disabled Testator.
  6. Unusual Behavior of Testator.

These are not the only reasons that people contest wills but they are common reasons. The reasons listed generally relate to the mental decline of the testator in their old age which is evidenced by their confusion, forgetfulness or susceptibility to the influence of others.

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.

Can a testator be unduly influenced when they are incompetent?

Facts

An appeals court recently had to decide if a jury’s verdict that the testator lacked testamentary capacity and their verdict that the testator was unduly influenced was so conflicting that the verdict had to be set aside. In Texas, if a jury verdict has an irreconcilable conflict, the court is obligated to reverse the case.

Can a testator be unduly influenced when they are incompetent?

In general, undue influence presumes that the testator has testamentary capacity. Ruling that there was no irreconcilable conflict, the court noted that the Supreme Court has recognized that a finding of undue influence implies the existence of a sound¬†mind. However, no court has held that a finding of undue influence requires the existence of a sound mind. In fact weakness of mind and body, whether produced by infirmities of age or by disease or otherwise, may be considered as a material circumstance in determining whether or not a person was in a condition to be susceptible to undue influence. The court stated that in order to be an irreconcilable conflict, one of the jury’s answers would require a verdict for the contestant and the other would require a verdict for the proponent. Since both of these findings by the jury would require a verdict for the contestants, there was no irreconcilable conflict. 350 S.W.3d 130.

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