Collins v. Smith, 53 S.W.3d 832 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
Testator’s original will left his property equally to his five
daughters. After the death of Testator’s wife, Testator took a variety
of steps in favor of one of his daughters (Favored Daughter) who was
still living on Testator’s property. For example, he named her as an
agent under a power of attorney and converted bank accounts into
survivorship form with Favored Daughter. Favored Daughter sent
instructions to Attorney for the preparation of a new will under which
cash would be divided among grandchildren with the contents of the house
passing equally to his daughters. Attorney prepared the will as
instructed but never spoke with Testator about its contents. Attorney,
fearing a will contest, did not supervise the will execution ceremony.
Testator later executed the will at another law office. Attorney did,
however, prepare a deed for Testator under which he conveyed all his
real property to Favored Daughter and her husband. After Testator’s
death, Disfavored Daughters contested the will and the inter vivos
transfers. The jury found for Favored Daughter on all matters including
that Testator had testamentary intent to execute the will. Disfavored
Daughters appeal claiming that the evidence was insufficient to support
the jury’s findings.
The appellate court affirmed. Disfavored Daughters asserted that
Testator lacked testamentary intent for a variety of reasons. For
example, he was in poor health, did not directly give Attorney the
instructions for the will, the will execution ceremony was kept secret
from the beneficiaries, Favored Beneficiary was too involved with the
will execution, the disposition of the estate was unnatural and
impossible, and Testator lacked the means to determine the contents of
the will. The court agreed that these factors could cast suspicion on
Testator’s testamentary intent but that Favored Daughter met her burden
in presenting evidence removing any suspicion. The court reviewed the
plethora of evidence demonstrating that Testator wanted his property to
pass as indicated in the will and other documents.
Moral: It is difficult to overturn a jury finding that a testator had
testamentary intent on appeal. Thus, the contestant must present strong
evidence at trial.
Collins v. Smith, 53 S.W.3d 832 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
Testator’s original will left his property equally to his five
daughters. After the death of Testator’s wife, Testator took a variety
of steps in favor of one of his daughters (Favored Daughter) who was
still living on Testator’s property. For example, he named her as an
agent under a power of attorney and converted bank accounts into
survivorship form with Favored Daughter. Favored Daughter sent
instructions to Attorney for the preparation of a new will under which
cash would be divided among grandchildren with the contents of the house
passing equally to his daughters. Attorney prepared the will as
instructed but never spoke with Testator about its contents. Attorney,
fearing a will contest, did not supervise the will execution ceremony.
Testator later executed the will at another law office. Attorney did,
however, prepare a deed for Testator under which he conveyed all his
real property to Favored Daughter and her husband. After Testator’s
death, Disfavored Daughters contested the will and the inter vivos
transfers. The jury found for Favored Daughter on all matters, including
that Favored Daughter did not fraudulently procure the deed. Disfavored
Daughters appeal claiming that the evidence was insufficient to support
the jury’s findings.
The appellate court affirmed. Disfavored Daughters claimed that Daughter
and her husband never intended to pay for the deeded property and thus
fraudulently induced Testator into signing the deed. As evidence of
their claims, Disfavored Daughters pointed to the fact that no mortgage
or note was prepared to protect Testator’s interest in the property.
Favored Daughter was unclear as to the purchase price and the terms of
payment when questioned at trial. In addition, Favored Daughter
initially placed the payments in accounts in which she had survivorship
rights. Nonetheless, the jury examined the evidence and concluded that
Favored Daughter actually intended to pay for the property.
Moral: It is difficult to overturn a jury finding that a transaction was
not fraudulent on appeal. Thus, the complaining party must present
strong evidence at trial.
Collins v. Smith, 53 S.W.3d 832 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
Testator’s original will left his property equally to his five
daughters. After the death of Testator’s wife, Testator took a variety
of steps in favor of one of his daughters (Favored Daughter) who was
still living on Testator’s property. For example, he named her as an
agent under a power of attorney and converted bank accounts into
survivorship form with Favored Daughter. Favored Daughter sent
instructions to Attorney for the preparation of a new will under which
cash would be divided among grandchildren with the contents of the house
passing equally to his daughters. Attorney prepared the will as
instructed but never spoke with Testator about its contents. Attorney,
fearing a will contest, did not supervise the will execution ceremony.
Testator later executed the will at another law office. Attorney did,
however, prepare a deed for Testator under which he conveyed all his
real property to Favored Daughter and her husband. After Testator’s
death, Disfavored Daughters contested the will and the inter vivos
transfers. The jury found for Favored Daughter on all matters, including
that Daughter did not breach her fiduciary duties. Disfavored Daughters
appeal claiming that the evidence was insufficient to support the jury’s
findings.
The appellate court affirmed. Disfavored Daughters pointed to many
factors which tended to show that Favored Daughter breached her duties
towards Testator. For example, Favored Daughter did not tell Attorney
that the bank accounts were all in survivorship form so the monetary
gifts to grandchildren would actually never take place and that she was
going to buy the house. The court examined contrary evidence and found
that that it was sufficient to support the jury’s finding.
Moral: It is difficult to overturn a jury finding that a person did not
breach fiduciary duties on appeal. Thus, the complaining party must
present strong evidence at trial.
Collins v. Smith, 53 S.W.3d 832 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
Testator’s original will left his property equally to his five
daughters. After the death of Testator’s wife, Testator took a variety
of steps in favor of one of his daughters (Favored Daughter) who was
still living on Testator’s property. For example, he named her as an
agent under a power of attorney and converted bank accounts into
survivorship form with Favored Daughter. Favored Daughter sent
instructions to Attorney for the preparation of a new will under which
cash would be divided among grandchildren with the contents of the house
passing equally to his daughters. Attorney prepared the will as
instructed but never spoke with Testator about its contents. Attorney,
fearing a will contest, did not supervise the will execution ceremony.
Testator later executed the will at another law office. Attorney did,
however, prepare a deed for Testator under which he conveyed all his
real property to Favored Daughter and her husband. After Testator’s
death, Disfavored Daughters contested the will and the inter vivos
transfers. The jury found for Favored Daughter on all matters, including
that Disfavored Daughters did not attempt to probate Testator’s original
will in good faith and with just cause. Disfavored Daughters appeal
claiming that the evidence was insufficient to support the jury’s
findings.
The appellate court affirmed. Disfavored Daughters alleged that they are
entitled to costs under Prob. Code § 243 because they attempted to
probate Testator’s original will in good faith and with just cause. They
assert there was sufficient evidence to show that they believed
Testator’s later will was tainted for a variety of reasons, such as
fraud, undue influence, and lack of capacity. Nonetheless, the court
determined that there was sufficient evidence to support the jury’s
finding that Disfavored Daughters did not proceed in good faith and with
just cause.
Moral: It is difficult to overturn a jury finding that a person did not
attempt to probate a will in good with and with just cause. Thus, the
complaining party must present strong evidence at trial.