Texas does not recognize a pretermitted (forgotten) spouse so this article has no application to Texas. Some states do recognize a pretermitted spouse and I have written about those states here. Basically, a pretermitted spouse is someone who marries a person after that person has made a will. If the will is not revised and the parties are still married on the death of the one who made the will, the surviving or pretermitted spouse will take a portion of the estate even though they are not mentioned in the will.
This post concerns fiduciary duties in Texas. The case that is discussed deals with an Executor but could also apply to a trustee or any other fiduciary in Texas. A court of appeals ruled in 2014 that a Texas Executor commits breach of trust not only where he violates a duty in bad faith, or intentionally although in good faith, or negligently but also where he violates a duty because of a mistake. Executor Violates Duty because of a Mistake even if he relied on his attorney for advise. No. 02-14-00170-CV.
Executor Violates Duty because of a Mistake
A man died. He had two sons. First son was appointed executor under the man’s will. Second son was, for some reason, not Continue reading
Texas and many other states will enforce forfeiture clauses in wills if the contestant is not successful. The clauses are know as no contest provisions or in terrorem clauses . Texas has a Good Faith Exception in Will Contest involving no-contest clauses. There is an exception to enforcement if the person contesting the will brings the action in good faith. EC 254.005. In that case, the courts will not enforce no-contest forfeiture clauses.
Some states like Mississippi had not recognized the good faith exception to forfeiture but that has changed. In 2015 the Mississippi Supreme Court in Parker v. Benoist recognized the good faith exception. The court stated that the logic for a good faith exception is simple: courts exist to determine the truth. Continue reading
An old Texas case was faced with these facts: A husband abandoned his wife, with the intention of abandonment, and remained away from her continuously until her death; that he left his wife destitute and without means of support; that she was compelled to earn her living and pay her own way; and, that by such efforts she had earned and accumulated property. After her death, the husband returned to claim her property because she died without a will. The wife had no children.
Is it the law that Husband Inherits Abandoned Wife’s Property? That is the question the court had to answer. The trial court ruled that all the property went to the wife’s brothers and sisters because the husband had abandoned her. The court of appeals reversed. The appeals court stated that it might be conceded that it would seem unjust that the husband should be permitted to share in the property of his wife after having so grossly disregarded the marriage vow, but the statute clearly and unequivocally gives the deceased spouse’s Continue reading
Elder abuse is increasing, 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 Continue reading