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
Although this blog is only about Texas law, a recent case out of Delaware dealt with an unusual issue and the results should be the same in Texas if the issue ever comes up. The Delaware court in 2015 was asked to decide if an agreement not to contest a will would support a suit for damages. The facts recited in the opinion are set out as follows: “In his complaint, Paul alleges that their mother had wanted to renounce the 2004 Will and create a new will leaving Paul the family home and 50 percent of her remaining estate; however, she was prevented by Charles from doing so. After their mother’s death, Paul confronted Charles about his actions, and Charles agreed to honor their mother’s wishes and share her estate with Paul in exchange for Paul’s agreement not to contest the 2004 Will.”
When Charles breached the agreement, Paul filed a breach of contract suit against Charles for damages. Charles asked the court to dismiss Paul’s suit because the alleged contract between Paul and Charles was Continue reading
Necessary parties to will contest
In every lawsuit, there are necessary parties. For instance, a husband cannot file for divorce without making his wife a party and serving her with citation. The same may be true in will contest but there is a difference between states as to who constitutes a necessary party.
In Texas, will contest are In Rem, while in other states, will contest or In Personam. In Rem means about the thing while In Personam means about the person. Because Texas will contest are in rem, such proceedings are binding on all persons interested in the estate of the decedent whether or not they have actual notice of the proceeding and Continue reading
Non Probate Assets
Financial accounts like checking accounts, savings accounts, C.D.’s and retirement accounts are non probate assets. That means that a person’s will does not control who gets the funds. The beneficiary designation on those accounts determine who gets the funds. They do not pass through probate. The same is true of joint accounts with right of survivorship.
Pay On Death Beneficiary Designation
Owners of the financial accounts sign a Pay On Death Beneficiary Designation form “POD.” The person designated as Continue reading
I’ve written about 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 Continue reading