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 any one interested party, and all other interested parties are free to join the contestant, join the Continue reading
What is Forced Heirship?
Forced heirship is a concept that provides that all of your children have a right to a portion of your estate upon your death. There are limited circumstances under which a child can be disinherited. Absent one of these circumstances, if you do not provide a child with his or her forced portion, he or she can sue to claim it. The idea comes from Roman and French Civil Law. Louisiana has forced heirship. All states follow the Common Law of England rather than the Civil Law of Europe except for Louisiana.
Texas Forced Heirship.
Texas was part of Mexico before its independence. Mexico’s law is based on the Civil Law of Europe. Because Mexico had Continue reading
What is an arbitration clause
The Supreme Court of Texas upheld an arbitration clause in a trust and the same reasoning may apply to wills although the court has not ruled on this question where a will was involved. Arbitration clauses are usually found in contracts or other agreements. The parties agree to arbitrate. Disputes are submitted to an arbitrator instead of being tried by a court in a lawsuit. There are perceived cost savings with arbitration and arbitration can be quicker than normal litigation. One of the main benefits of arbitration is privacy. Litigation is public, arbitration is private.
Arbitration clauses in wills
A testator may not want the world to know about his estate and may prefer that all disputes be settled by arbitration. In the context Continue reading
History of Undue Influence
The doctrine of undue influence derives from English courts. A will contest heard by Sir Francis Bacon as the Lord Chancellor of England in 1617 illustrates common aspects of the process of undue influence which emerged in the context of a will contest. These aspects include frail health, and physical dependency, false affection, relationship poisoning, threats and mistreatment, and involvement in the execution of documents by and in favor of the alleged abuser. UNDUE INFLUENCE: DEFINITIONS AND APPLICATIONS.
Relationship poisoning and undue influence.
What is relationship poisoning in the context of a will contest? A Texas court held that when a person makes negative remarks Continue reading
What is a pretermitted spouse
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.
Pretermitted Spouse and Premarital Agreement
In a 2014 case from California, which does recognize a pretermitted spouse, the court was asked to determine if a premarital Continue reading