Texas Probate & Guardianship Blog

Today we look at the magical term “Testamentary Capacity.”

Out of all the possible avenues for attack in a Will Contest, the question of Testamentary Capacity has to be the most well traveled.  Texas Probate Code Section 88 requires that the testator was of “sound mind” when the Will was executed.  “Sound Mind” is sort of the layman’s term for Testamentary Capacity.  Over the years, the Courts in Texas have developed a definition of Testamentary Capacity that, in its current form, looks like this:

The testator must, at the time of the Will execution, have sufficient mental ability to (1) understand the business in which he is engaged; (2) understand the effect of his act in making the Will; (3) know the general nature and extent of his property; (4) recognize his next of kin and the natural objects of his bounty; and (5) have sufficient memory to collect in his mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other and to form a reasonable judgment.  Lindley v. Lindley, 384 S.W.2d 676, 683 n. 1 (Tex. 1964).

While it is never presumed, testamentary capacity is actually a fairly low bar to hurdle.  As long as the person has their wits on the day of the execution, even a subsequent finding of incapacity is not admissible.  The fact that the person writing the will was old or feeble is not enough.  The fact that the person was taking medication is not enough, unless it is shown that the medication rendered him incapable of knowing his family, his estate, or understanding his actions.

Interestingly, a physicians opinion regarding mental capacity is, in the eye of the law, no better than that of any other person.

So the question really becomes, did the person know he was signing a Will, know that a Will transfers his property upon his death, know what property he had, and know the people to whom he wished to leave property.    If those factors are covered, more than likely the person had capacity.

Next time we wrap up our series with a look at insane delusions and undue influence in the making of a Will.

Today we look at the statutory requirements for a valid Texas Will.

Texas Probate Code Section 59 is where we find the rules for what constitutes a valid Will in Texas.  It states that a will shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence, and shall, if not wholly in the handwriting of the testator, be attested by two or more credible witnesses above the age of fourteen years who shall subscribe their names thereto in their own handwriting and in the presence of the testator.

Now those are the physical requirements.  However, to be a valid Will, the document must be written with what is called “testamentary intent.”  It must possess in some degree the essential characteristics of a will.  The most common proof of such intent is a statement such as “This is my last Will and Testament,” or “it is my will and desire.”  However, the fact that the person may not realize they are writing a Will, does not prevent it from being probated as such, if it fulfills the statutory requirements.  The Supreme Court in Hinson v. Hinson stated that “The [testamentary intent] does not depend upon the maker’s realization that he is making a will, or upon his designation of the instrument as a will, but upon his intention to create a revocable disposition of his property to take effect at his death.  It is essential however that the maker shall have intended to express his testamentary wishes in the particular instrument offered for probate.”

What about Oral Wills?  Well, until 2007, there remained in Texas such a thing as an “oral will” or otherwise known as a “nuncupative” will.  However such a Will was only valid for personal property and required three witnesses and only counted if the person made it on his deathbed.  Now, even such limited circumstances do not count and all Wills must be in writing to be valid.

Regarding the technical requirements, the “signature” of the testator can be any mark and may even appear in the body of the document.  If the person signed with an “X” then that is a valid signature.  If the person wrote “Your son, Jimmy,” then that is a valid signature.  In fact, even if someone else signs the document, say because the Testator had two broken hands, this will be valid provided that it is done in the Testator’s presence and at his direction.

Furthermore, the witnesses to such Will must be “credible.” Luckily for most of us, this is a very low hurdle to overcome. To qualify as credible, the witness must not be receiving any bequest under the will, and must be over the age of fourteen.  In fact, the witnesses do not even need to know they are signing a Will.  Nor do they have to actually see the Testator sign the Will.  Nor do they have to sign in each others’ presence.  So long as they sign in the Testator’s presence and at his direction, they will qualify as a valid witness.

If one wishes to dispense with even the meager requirement of two witnesses, they need only to write the entire will in their own handwriting.  A “holographic” Will, as such is known, is a Will wholly in the handwriting of the Testator and requires nothing more than the Testator’s own signature.  There’s even a case in Texas of a man scratching out a valid Will on the fender of a tractor that he had unfortunately turned over and fatally pinned himself under.

So there you have it, the execution of a Will.  No notary requirement, no formal ceremony, no fancy recitals or oaths of fealty, just a writing with testamentary intent and signatures of witnesses if it’s typewritten.  Next time, we will look at “Testamentary Capacity,” and what it means to be of “sound mind.”

As I mentioned in my last post, the Chronicle has not offered any solutions to the corruption that it perceives in the Probate Court. While it continues to allege corruption in the Courts, it acknowledges that the Probate Courts have instituted fee guidelines that govern the fees charged in cases pending in the Probate Courts. As the Chronicle mentions, the maximum fee that can be charged by an attorney in a case in the Probate Courts is $300/hour, which is substantially lower than the fees charged by attorneys in most types of cases.

Following the articles that ran in 2008 in the Chronicle, the Probate Courts in Harris County instituted fee guidelines that they apply to fees submitted for approval by the Court. Those fee guidelines lay out how much an attorney can charge, the types of matters that he can bill for, etc. While those fee guidelines were instituted as a result of the Chronicle’s allegations, they do nothing to solve the corruption that the Chronicle alleges.

By establishing a cap on the fees that can be charged in Probate and guardianship cases, the guidelines hinder the public’s ability to retain talented attorneys to work on these cases. Under the guidelines, an attorney who has been licensed over 10 years can charge between $200 and $300 per hour. However, there is no provision for ever being able to charge more than $300 per hour. The problem that this creates is that highly skilled attorneys will charge $300 an hour or more by their 13th to 15th year in practice. Thereafter, as their rates increase, they have to take a reduction in their rates if they want to work on probate and guardianship cases. Because many firms will not allow their attorneys to take these kinds of reductions, the attorneys are forced to stop assisting clients with probate cases.

This problem played out dramatically about 3 years ago when all of the probate lawyers at a large firm in Houston had to leave their firm and start a smaller firm because their original firm required them to bill at rates higher than the Probate Courts would approve. This forced those attorneys to either stop practicing the area of law in which they were experts, or they had to leave their firm in order to cut their rates enough to meet the Probate Court guidelines.

Probate and guardianship cases often involve very complex situations, which would naturally require highly skilled attorneys to handle. However, because of the restrictions advocated by the Chronicle, the cap on fees makes it harder to find attorneys who are highly skilled and willing to reduce their fees enough to comply with the guidelines.

In reality, the vast majority of fees charged by attorneys in probate and guardianship cases are reasonable and necessary. Those fees are only submitted to the Court because the Probate Code requires that they be. Allowing the Houston Chronicle to legislate what happens in the Probate Courts is incredibly dangerous because a) the Chronicle does not understand the subject matter, and b) their restrictions would ensure that the public is denied competent legal representation. The last time I checked, Texas adhered to the free market system upon which this country was founded. The public should be given the option to hire any lawyer that they choose, and the lawyers should be allowed to charge the rates that the market will bear. The Chronicle is hindering the free market.

On Friday, October 22, 2010, the Houston Chronicle published a front-page article regarding its perceived abuses and misuses of the Probate Courts by the Judges who preside over those courts and by the attorneys who practice in them. This article is a follow-up article to a two-part series that the Chronicle ran in the summer of 2008 on the same topics. In the article, the author cites to various statistics regarding fees that have been approved by the Probate Courts in Harris County and casts stones upon both the Judges and the attorneys who practice in these courts.

The Chronicle seems to take the opinion that the Harris County Probate Courts must be corrupt because the judges in those Courts approve attorneys’ fees for the attorneys who practice in those Courts. What the article does not tell you is that the Probate Code requires that attorneys in many probate cases and in all guardianship cases submit their fees to the Court for approval. The article also does not tell you that the Probate Courts are virtually the only Courts in the state of Texas where attorneys are required to submit their fees for approval to the Court in even the most basic and routine cases.

In an effort to shed some light on the allegations made by the Chronicle, I am going to post a short series of a couple of blog posts regarding the issue of the attorneys’ fees charged in the Probate Courts and the allegations that are raised by the Chronicle. I hope that you find the series helpful and informative.

In previous posts, we discussed two of the three Court-appointed individuals used in guardianship proceedings throughout the State. For every guardianship proceeding, the Court appoints an Attorney ad Litem to act as the attorney for the Proposed Ward. In many cases, the Court may take an additional step and appoint a Guardian ad Litem to identify and represent the “best interests” of the Proposed Ward throughout the case. A third appointee that is generally found only in the guardianships of larger counties is the Court Investigator.

Each statutory probate court – the specialized probate courts found in the largest Texas counties – routinely appoints a Court Investigator upon the filing of an application for guardianship. The Investigator is designed to be as neutral and objective an observer as can be. They work for neither the applicant nor the Proposed Ward, and their background is often more filled with experience in social work than legal advocacy.

When appointed, the Court Investigator has an obligation to investigate the circumstances alleged in the applicant’s application for guardianship. Often, this involves face-to-face interviews with the applicant, the Proposed Ward, family, friends, caretakers and so on. The Court Investigator will almost certainly want to visit with the Proposed Ward where he or she lives, as most applications for guardianship allege that the Proposed Ward is less than fully capable of caring for themselves.

The Court Investigator’s role is very much what is sounds like. After investigating the circumstances, they will prepare and file a report with the Court. Depending on the contents of the report, it may be offered as evidence in favor of a guardianship, against a guardianship, or in favor of something in the middle. One of the key components of the report will be the Investigator’s conclusions regarding less restrictive alternatives. If something less restrictive than a complete guardianship would resolve the issue, the Court Investigator should identify it.

The Court Investigator’s office is also responsible for supervising the Court Visitor Program. Each statutory probate court is required to operate such a visitor program, and to utilize volunteers wherever possible. Court Visitors are often called upon to gather information similar to the Court Investigator and report that information back to the Court. In many cases, Court Visitors will be assigned to visit with Wards that have been under a guardianship for long periods of time. Their periodic information helps the Court determine if continuation of the guardianship is necessary.

As we take a step back from our review of the roles of appointees in guardianships, it is clear to see that in many cases, several individuals could be involved in the process. The filing of an application puts several wheels in motion for the applicant, the Proposed Ward, the Court and appointed personnel. Each person has their own role, and those roles are clearly defined by the same law which authorizes their appointment.

Johnny Carroll, Individually and as Trustee of the Johnny Carroll Trust, v. Letha Frances Carroll and Donald Carroll, Supreme Court of Texas
This week’s entry comes to us from on high, the Texas Supreme Court. Johnny Carroll appealed the Appellate court’s ruling on a default judgment which was awarded in favor of Letha and Donald Carroll. Johnny raised the issue of jurisdiction for the first time in the Supreme Court cliaming that the County Court, to which this case had been transferred, lacked the requisit jurisdiction to hear the matter. The Supreme Court agreed.

Jurisdiction in regard to Trust Proceedings

The Texas Property Code provides that a district court has original and exclusive jurisdiction over all proceedings concerining trusts, including proceedings to appoint or remove a trustee, determine the liablity of a trustee, or to require an accounting by a trustee.

Letha and Donald’s original suit sought exactly such accounting and removal. Despite this, the 66th District Court of Hill County transferred this suit to to County Court at Law.

The Supreme Court noted that the district courts may only assign cases to the county courts at law that are within the county court at law’s jurisdiction. Because nothing in the Texas Government Code confers jurisdiction on county courts at law over trust proceedings, the transfer to the Hill County Court at Law was improper. In light of the fact that the Hill County Court at Law had no jurisdiction over the proceeding, its judgment was void.

What does all of this mean for you? Perhaps a lot. Void judgments are no judgments at all. They are good nowhere and can be attacked at any time. Therefore, even if you have been out of court for years and you now read this and realize your trust case was handled in a court that lacked jurisdiction, you may still be able to attack such a judgment on the basis of voidness. To make sure, call us today and schedule an appointment to discuss your options.