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.

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.”

On Friday, November 4, 2011, the Houston Chronicle ran a front-page story entitled, “Elderly Texans at Risk, and It’s Legal,” which is the latest in a series of articles over the last few years regarding the Chronicle‘s perceived deficiencies in the way that guardianship cases are handled by the Probate Courts in Texas.  You may recall that we reported on a similar story from October 22, 2010, and prior stories were published in the Chronicle in June 2007.

The new article depicts the story of Helen Hale, an 86-year old widow who was “plucked” from her house and placed into a retirement home, but the article glosses over the fact that Hale’s children were neglecting to provide appropriate care for her.  The article cites that over 30,000 elderly people in Texas have “lost the right to decide where they live, to choose a caretaker or to spend their life savings…” due to becoming incapacitated in their later years.  The article also cites that the number of guardianship cases in the larger counties like Harris, Travis, and Bexar has increased to the point that each probate judge handles a caseload of between 1,500 and 3,000 guardianships per court, but it fails to cite that these counties have special courts dedicated to handling guardianship cases.  Most interestingly, the article casts a negative light on these courts because “most [probate] judges have only a single investigator to check out potential problems” in guardianship cases.

Although the Chronicle appears to tell a compelling story of neglect in the Probate Courts, the story clearly fails to convey the facts about guardianships accurately.  The article faults the probate courts for having only one investigator per court, but it fails to mention that only the 10 largest counties in the State with special courts dedicated to handling guardianship cases have court investigators to investigate problems in guardianship cases.  In the 224 other counties in the state, no court investigator exists in the entire county, which means that the vast number of counties in the state have nobody to investigate guardianship issues.

Likewise, in the 10 largest counties that have special judges dedicated to hearing nothing but probate and guardianship cases, the Courts have investigators and auditors to closely monitor what happens in guardianship cases.  The 224 other counties in the state have judges who do not “specialize” in guardianship cases, and in many cases, those judges are not even lawyers.  Instead, the courts in the 224 smaller counties hear a wide variety of cases – civil, criminal, family, guardianship, etc. – and do not offer incapacitated individuals the same level of attention that they receive in the larger counties.

The Chronicle is correct that the number of guardianship cases has exploded in the last 20 years because of the aging population in Texas.  The Chronicle also correctly cites one of the Probate Judges in Houston when she says that guardianship disputes are “the most expensive endeavors that I see in probate courts.”  Guardianship disputes are incredibly complex, and they are often made more complex by attorneys who do not routinely practice in this area and who do not fully understand the complexities of these cases before they get involved.

In reality, no system is perfect, and every system is going to have flaws.  However, the Probate Courts in Harris County take the greatest care of any Courts in the state in attempting to protect the interests of the elderly in Houston.  If you find that you need to pursue a guardianship over a family member, please contact Ford + Mathiason.  Our attorneys have very substantial experience in contested guardianship cases, and we would be glad to assist you.

The first place to start in a Will contest, is, not surprisingly, the Will itself. In Texas, a Will must be in writing in all but the most limited circumstances. If you knew the Decedent to have a Will, examine the one offered for probate. Is it the same document you knew to be the decedent’s Will? If not, is it consistent with what the Decedent relayed to you concerning the disposition of his Estate? Also, determine if the Will is from a familiar source. Most probate attorneys have some form of identification on their Wills. If you find it, ensure that it is a lawyer you knew the Decedent had used in the past or was at least familiar with. Feel free to give the attorney a call and inquire as to her recollection of the execution.

Second, the Will must be signed by the Decedent. If you were familiar with the signature of the Decedent, examine the Will and ensure that the signature matches what you knew to be the Decedent’s signature. However, it is important to note that almost any marking will suffice as a signature, just so long as it was the Decedent’s mark or a mark made by someone, for him, at his direction, and in his presence. If you feel the signature does not match up, consult a handwriting expert and obtain a professional opinion.

Third, the Will must be signed by the maker with the intent to express his wishes for a testamentary disposition of his property. In other words, the intention to make the document a Will. This is called “Testamentary Intent.” A letter may suffice as a Will, but it must clearly express the person’s desire to pass on property after his death. Anything short of that and the document will not be held to have been drafted with the requisite “intent.”

Finally, the drafter must have known and understood the contents of the document he was signing. While this element bleeds over slightly into testamentary capacity issues, the main thing to focus on here is did the drafter know what was in the Will, and did he understand what the document stated. If this was just some document that was drafted elsewhere and then shoved into the person’s face by a manipulative beneficiary, and the Decedent never knew or understood the contents, then it will not qualify as a valid Will.

These are the first questions to be asking yourself when you are concerned with the validity of a Will and contemplating a Will Contest in Texas. Tomorrow we will delve deeper into the requirements for a valid execution of a Texas Will.

My goal is to explain exactly what a Texas Will contest entails, what grounds are available for such a contest, and what issues regularly arise in such proceedings. In the following days, I will lay out what actual grounds are available for a such contests, and hopefully clear up some of the misconceptions out there about what can and cannot be contested when dealing with Texas Wills.

As a primer, there are basically two base groupings that all contests fall into. The first deals with the person writing the Will, and the second deals with the document itself. Therefore, starting Monday, we will look at the following issues surrounding Will Contests:

1. What are the statutory requirements for a valid Will in Texas?

2. What are the statutory requirements for a valid Will execution in Texas?

3. What does “testamentary capacity” mean?

4. What is an “insane delusion” and what constitutes “undue influence” in the drafting of a Will?

So tune in tomorrow as we delve into the statutory requirements for a properly drafted Texas Will.

This case deals with the removal of an independent executor because of an alleged conflict of interest.

In a fairly broad sweeping opinion, the Supreme Court ruled that because a conflict of interest is not listed in the probate code among the several grounds as conditions for removal, it is not a valid reason for removal.

The Court noted that the grounds to remove an independent executor post-appointment are different than those to disqualify an executor pre-appointment. The evidence in the case showed that the dispute was a good-faith disagreement between the executor and the contestant as to how to split the value of improvements made to land co-owned by the Estate and the Independent Executor. The record contained no evidence of dishonesty or misappropriation on the Executor’s part.

The Court concluded that a good-faith disagreement over the Executor’s ownership share in the estate is not enough, standing alone, to require removal under section 149C. The estate was small; there was no actual harm to the Estate since the trial court resolved the percentage-of-ownership issue; the Independent Executor asserted his claim in good faith; and the Testator knew of the Independent Executor’s co-ownership in the property when he named him as such in his will. Therefore, without more, the Court was unwilling to remove the Independent Executor based on a potential conflict of interest.

What does this mean for you? You need to be vigilant in attacking conflicts of interest prior to appointment. If you see potential danger ahead, do not wait until it’s too late. Contact us today and let us help you to ensure that your matter is handled properly from the start.

The report also cited a second recent study showing that donors who include a charitable bequest in their estate plans make annual gifts more than double in size than similar donors who fail to utilize such bequests. (Source: The Bequest Study, The Center on Philanthropy at Indiana University; Giving USA 2008)

Given the current state of the economy and the uncertainty that lies ahead for medicaid/medicare and social security given these staggering numbers, its more important than ever to ensure you have a comprehensive estate plan to ensure your financial health well into the future.

Contact us today to discuss all of the ways you can ensure your estate plan is up to date and viable in this ever-evolving economy.

It is easy to shrug off the eccentric or erratic behavior of elderly individuals as simply the typical behavior of someone their age. Sadly, though, in far too many cases it can be much more serious. External signs such as excessive clutter or letting their homes fall into disrepair are some of the common signs that elderly individuals are neglecting themselves. Sometimes the signs of self-neglect not as easily observable, though. Often times an individual may not be eating enough, or getting a balanced diet. They may be forgetting to take their medications, or accidentally taking the wrong doses. The only way this can be observed and reported is if those close to them take the time to educate themselves and take on the responsibility of knowing how to care for their loved one.

This type of elder abuse poses significant danger to the elderly, and only promises to get worse as we see the baby boomers aging. Take the time to learn about the medications your neighbors or family members are on. If you suspect a friend or loved one is a victim of self-neglect do not be afraid to make an honest assessment of the situation. If you believe that someone is incapable of caring for herself, you not only have a duty under the law to report it, but more importantly you owe it to her for her own safety and well-being.

The speech focused on the common causes of Elder Abuse, the most frequent offenders, and the reason that a majority of these crimes go unreported. Not surprisingly the common theme in most of these cases involves family members seeking money from elderly parents or grandparents. However such crimes are not limited to monetary exploitation and can include physical, psychological, and sexual abuse. Unfortunately a vast majority of these crimes go unreported because of the strong emotional bond between elderly victims and the abusive family member and/or the embarrassment that naturally stems from being a victim of such abuse.

The presentation wrapped up with a rundown of the reporting guidelines which are listed in the Human Resources Code Section 48.051. Such section states that a person having cause to believe that an elderly or disabled person is being abused, neglected, or exploited, shall report the information immediately to the authorities. Such duty applies without exception to a person whose knowledge concerning possible abuse, neglect, or exploitation is obtained during the scope of the person’s employment or whose professional communications are generally confidential, including an attorney, clergy member, medical practitioner, social worker, and mental health professional.

The report may be made orally or in writing and needs to include not only the name, age, and address of the elderly or disabled person but also the name and address of any person responsible for that person’s care; the nature and extent of the person’s condition; the basis of the reporter’s knowledge; and any other relevant information.

Such reports can be made to the police by dialing 911, Adult Protective Services (APS), Department of Aging and Disablity Services (DADS); or the County Attorney’s Office Protective Division, by calling Celilia Longoria at 713-578-2181.

Please help do your part to prevent this rapidly increasing problem. If you suspect that an elderly or disabled person is the victim of abuse, please contact one of the departments listed above or give us a call at 713-260-3926.

In this Will contest from Beaumont, we get one of the rare cases where undue influence was proven in the trial court, and managed to hold up at the Court of Appeals. Pearl Graef probated the 1989 will of her sister, Minnie Ola Kremer. Nearly two years later, Charles Lester Smith, a friend of Minnie’s, filed a motion to set aside the 1989 Will and instead probate a Will allegedly written by Minnie in 2004.

After a trial, the jury found that Minnie lacked testamentary capacity when she executed the 2004 Will and that Smith procured the 2004 Will by exercising undue influence over Minnie. The jury also found that Smith failed to bring his proceeding in good faith and therefore denied him attorney’s fees.

Smith appealed the jury’s findings. In his first issue, he challenged the probate court’s admission of Minnie’s nursing home records. According to Smith, such records were inadmissible because they were not supported by expert testimony. At trial, Smith objected under Rule 403 of the Texas Rules of Evidence that the probative value was outweighed by the prejudicial effect.

The Court of Appeals stated that the trial court has the discretion to admit or exclude evidence. The Court noted that relevant medical records are admissible as records of regularly conducted activity if they have been properly authenticated. However, Smith did not complain of improper authentication. Therefore, the Court concluded that the records were relevant and admissible.

In his second issue, Smith objected to the lack of expert medical testimony to prove that the Decedent lacked testamentary capacity when she signed the 2004 Will. The Court once again shot this down stating that testamentary capacity need not be proved by expert medical testimony and the requisite proof is within the common knowledge of laypersons.

In his third and final issue, Smith contends that there was not sufficient evidence to prove undue influence. Because such cases are rare, this case is valuable to anyone looking to try an undue influence claim as the Court gives a great rundown of the elements needed and what was produced at trial in this matter.

The Court first laid out the factors to consider in such a case including: (1) the nature and type of relationship existing between the testator, the contestants and the party accused of exerting such influence; (2) the opportunities existing for the exertion of the type of influence or deception possessed or employed; (3) the circumstances surrounding the drafting and execution of the testament; (4) the existence of a fraudulent motive; (5) whether there has been an habitual subjection of the testator to the control of another; (6) the state of the testator‟s mind at the time of the execution of the testament; (7) the testator‟s mental or physical incapacity to resist or the susceptibility of the testator‟s mind to the type and extent of the influence exerted; (8) words and acts of the testator; (9) weakness of mind and body of the testator, whether produced by infirmities of age or by disease or otherwise; and (10) whether the testament executed is unnatural in its terms of disposition of property.

In reviewing all of the evidence, the Court concluded that the jury could have concluded that Minnie and Smith were friends who had a creditor-debtor relationship, and in light of the relationship between the parties, the jury could have reasonably concluded that Minnie’s gift was an unnatural disposition of her estate. Additionally, the Court found that the jury could also have reasonably inferred that the circumstances involved in the creation and execution of Minnie’s 2004 Will did not reflect the normal manner under which testators create wills. The jury could have also considered that Smith, not Minnie, paid for the attorney’s services, and that Smith arranged for his friends to serve as witnesses at the will signing ceremony.

Finally, the Court noted that when Minnie executed the 2004 Will, she was ninety years of age. She was in poor health and unable to care for herself. She had only a sixth grade education. The jury could have reasonably concluded that Minnie was susceptible to being unduly influenced during the ceremony in light of her minimal educational background, her poor hearing, and her generally poor state of health around the time she signed the 2004 Will, together with evidence showing that Minnie was not provided with supplemental oxygen during the will ceremony, and that neither before or during the ceremony, did Minnie question why the 2004 Will left the home in which Pearl was living to the Smiths. The jury could reasonably conclude from all of the circumstances that Minnie did not have the strength of mind or body to exercise her own will when she executed the 2004 Will.

In light of the fact that the Court must look at the evidence in the light most favorable to the jury verdict in this matter, the Court stated that there was sufficient evidence to find undue influence.

What does this mean for you? If you feel someone you know has been a victim of undue influence, call us today for a free consultation.