Backbround In 2016, the Texas court of appeals in Austin had to decide if a will was voidable because of public policy. The testator had one child, a girl. Two days before he died, he executed a new will that disinherited his daughter. The daughter contested the will. Her principal theory was that her disinheritance by her father violated ” public policy” –namely Texas’s strong public policy against sexual abuse of children. As her basis for that theory, she alleged that her father had abused her sexually while she was a teenager and had disinherited her after she confronted him with those allegations decades later. Is A Will Voidable Because of Public Policy Texas courts have voided wills or provisions in wills based on public policy. Those cases might involve restrictions on marrying someone of a different race, placing restrictions on the acts of a guardian appointed by the court who also happens to be a beneficiary or similar provisions. Ruling by the Court In this case, the court held that there was no basis for voiding a will based on public policy. The court said: the Legislature has not seen fit either to require testators in (father’s) alleged position either to provide an inheritance for their victim or to proscribe them from disinheriting the victim. The closest the Legislature has come is to authorize probate courts to bar...Read More
Author: Robert Ray
Is a Contingent Will Valid A will may be drawn to take effect on the happening of a contingency or condition. If the contingency or condition never occurs, it is void. An important class of contingent wills consist of instruments made to take effect as testaments in the event of the death of the maker from a particular illness, (i.e. “if I don’t survive my heart operation”) or before the happening of a certain event, such as returning to his home from a trip (i.e. “if I don’t return alive from my trip to India.”) If the testator survives the heart operation or if he returns alive from his India trip, the will is void. If the happening of the event is merely referred to as giving the reason or inducement for the making of the will, it will be held unconditional and a valid will no matter what happens; but, if it appears that the testator intended to dispose of his property in case of the happening of the named event, then it will be held to be conditional. So how do you determine if the testator intended a contingent or conditional will? The courts use “rules of construction” in determining if a will is contingent or not. Those rules are: the fact that testator left a will implies that he did not intend to die intestate; a...Read More
Usually. Most states will admit a foreign will to probate even if it doesn’t meet all the requirements of a will as long as it is valid in the state in which it was executed. (The term foreign will is how courts describe another state’s will. It doesn’t mean a will from another country.) For instance, some states require that a will be attested to by two witnesses. Other states may require three witnesses. If you execute your will with two witnesses and it is valid in your old state, the new state will admit the will to probate even though it doesn’t meet the requirements of a will in the new state which may require three witnesses. However, wills are not always recognized by the new state. As an example, Texas and many other states recognize holographic wills. A holographic will is one that is wholly in the testator’s handwriting. It doesn’t require witnesses if it is wholly in the testator’s handwriting. Florida does not recognize holographic wills and will not recognize a foreign will if it is a holographic will even though it is valid in the prior state where it was written. Florida Probate Code, §732.502. Just to be safe, if you move to another state you should talk to an attorney who handles estate planning to make sure your will is valid in your new...Read More
Most wills have a residuary clause. That clause is usually at the end of the will and says something like “I give all the rest and residue of my property to…” If property owned by the testator is not mentioned in the main part of the will, the residuary clause will determine who gets that property. What happens if your will does not have a residuary clause? In a 2014 case from the Florida Supreme Court that issue was before the court. A lady, the testator, had used an “E-Z Legal Form” for her will. It was properly executed and attested by two witnesses which Florida requires but it did not have a residuary clause. The will detailed all the property that she owned at the time and left the “listed” property to her sister. The will had a provision that if the sister didn’t survive her, the listed property would go to one of her brothers. The sister died before the testator. The sister left all of her property to the testator. The testator opened a separate account and put all of her sister’s property in that new account which was not listed in her will. The testator prepared an “addendum” to her “E-Z Legal Form” will that said “all my worldly possessions” go to my brother. It was in her handwriting and attested to by one person....Read More
A Business Partner Receives Life Insurance Proceeds to Buy a Deceased Partner’s Interest but Keeps the Money.
Insurance Policy for PartnerIn a 2014 case out of the Tyler Court of Appeals, the court decided a case involving life insurance proceeds between partners. Two men were partners in a business. They obtained life insurance policies on each others life for $2,000,000.00. When one partner died, the other partner decided to keep the two million dollars. The family of the deceased partner filed suit alleging that the life insurance policy was meant to go to the family of the deceased to buy out his interest in the company. The trial court ruled in favor of the living partner. The family appealed.
Who Owns the Life Insurance ProceedsAfter reviewing the facts, the court of appeals agreed with the trial court and ruled against the family of the deceased partner. They noted that while there were discussions about the money being used to buy out the family, there was never any contract to do so. Even though the deceased partner may have had a subjective belief that the proceeds of the insurance policy would be given to his family, his state of mind was insufficient to show a valid contract. Since the living partner was the sole beneficiary under the insurance policy, he kept all the money. 12-12-00150-CV.
What Should Have Been DoneThe family of the deceased partner believed that the partners had agreed to pay for the insurance policy to protect the family of a partner who died. Just because they believed that didn’t create a contract where none existed. The partners should have entered into a written contract to protect their families. With this much money involved, the partners could have afforded a competent attorney who could have advised them on the proper way to achieve their goals.
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Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization. We handle litigation cases related to inheritance disputes including will contest, related property disputes and associated torts throughout Texas. Our principal office is in Tyler, Texas. Contact Robert