An Attorney Prepared the Affidavit
In an old Texas case, the attorney testified that the deceased insisted on an affidavit. He refused to make a will because his wife was refusing to make one. The attorney recommended that he execute a will instead but he refused. The court noted that even though the gentleman told his attorney that he did not want to make a will but an affidavit, the affidavit was in fact a will.
Can an affidavit be a will, Yes it can be
The case upholds a jury finding that the affidavit is a will. The court noted that the affidavit is unambiguous and is clearly testamentary in its character. It makes certain special bequests and then proceeds to dispose of the maker’s entire estate. It Continue reading
England seeing an increase in will contest, why?
For the same reasons Texas is seeing an increase in will contest. I have previously written on why contesting a will has become more common. You can view that article here. An English law firm, Soosmiths, has an article on their website that discusses the Ministry of Justice statements on the causes of the increase in such cases in England. The increase is as much as 700% over prior years!
English law is different from Texas law but the law firm notes several reasons that I have previously discussed like the change in the family structure and the fact that we are living longer. The English article also talks about self made or do it yourself wills being a cause Continue reading
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. In other words, each of your children must get part of your estate. 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 but is not part of the common law of England. All states follow the Common Law of England rather than the Civil Law of Europe except for Louisiana. Louisiana has forced heirship, the other states generally do not have it.
No 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