Texas Fiduciary Litigator

Texas Fiduciary Litigator

The Intersection of Texas Courts and the Fiduciary field

2016 Fiduciary Litigation Update

Posted in Items of Interest, Knowledge Library
2016 Fiduciary Litigation Update

2016 Fiduciary Litigation Update

David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, spoke at the Amarillo Area Bar Association in Amarillo, Texas, on September 23, 2016.  David presented his paper,“Fiduciary Litigation Update,” and discussed recent Texas precedent impacting fiduciary litigation.  Some of the issues that David discussed are informal confidential relationships, funding of trusts, tortious interference with inheritance claims, forfeiture actions, employee liability for tortious conduct, slayer rule, and more.

CLICK HERE:2016 Fiduciary Litigation Update_Paper

CLICK HERE: PowerPoint_2016 Fiduciary Litigation Update

Contractual Clauses That Impact Disputes – Presentation

Posted in Items of Interest, Knowledge Library

Contractual Clauses That Impact Disputes

David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, spoke at the Texas Association of Bank Counsel’s 40th Annual Convention in Austin, Texas, on September 22, 2016. David presented his paper,“Contractual Clauses That Impact Disputes,” and discussed the purposes, standards for enforcement, and legal issues relating to the following contractual clauses: arbitration, forum-selection, venue-selection, jury-waiver, choice-of-law, indemnity, statute-of-limitations limiting, injunction, receivership, damage-limiting, and more.

CLICK HERE: Paper_Contractual Clauses That Impact Disputes

CLICK HERE: PowerPointContractual Clauses That Impact Disputes

Court Reversed Forfeiture Award Due To Trial Court Not Indicating It Followed The Correct Standard

Posted in Cases Decided, Texas Court of Appeals

In Cooper v. Sanders H. Campbell/Richard T. Mullen, Inc., a company filed suit under a promissory note against a former joint venture partner. No. 05-15-00340-CV, 2016 Tex. App. LEXIS 9253 (Tex. App.—Dallas August 24, 2016, no pet. history). The defendant filed a counterclaim for breach of fiduciary duty and sought equitable forfeiture for the amount owed under the note. The trial court initially awarded the plaintiff $1.4 million on the note, but later reduced that award by $520,000 for the equitable forfeiture claim. Both parties appealed.

The court of appeals affirmed the plaintiff’s note claim, and then turned to the defendant’s equitable forfeiture claim. The defendant argued that the trial court should have awarded an amount of forfeiture for the entire note claim, and not just a partial award. The plaintiff argued that the forfeiture award should be reversed because “the record does not show the trial court made the required determination that the conduct of the Mullen Co. was a ‘clear and serious’ breach of fiduciary duty, which the trial court can conclude only after applying the factors identified by the Texas Supreme Court.” Id. (citing ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 874, 875 (Tex. 2010)). The court first set out the standards for equitable forfeiture:

Courts may fashion equitable remedies such as disgorgement and forfeiture to remedy a breach of a fiduciary duty. Disgorgement is an equitable forfeiture of benefits wrongfully obtained. A party must plead forfeiture to be entitled to that equitable remedy. Whether a forfeiture should be imposed must be determined by the trial court based on the equity of the circumstances. However, certain matters may present fact issues for the jury to decide, such as whether or when the alleged misconduct occurred, the fiduciary’s mental state and culpability, the value of the fiduciary’s services, and the existence and amount of harm to the principal. Once the factual disputes have been resolved, the trial court must determine: (1) whether the fiduciary’s conduct was a “clear and serious” breach of duty to the principal; (2) whether any monetary sum should be forfeited; and (3) if so, what the amount should be.

As stated above, the trial court’s first step is to determine whether there was a “clear and serious” breach of duty. The trial court should consider factors such as: (1) the gravity and timing of the breach; (2) the level of intent or fault; (3) whether the principal received any benefit from the fiduciary despite the breach; (4) the centrality of the breach to the scope of the fiduciary relationship; (5) any other threatened or actual harm to the principal; (6) the adequacy of other remedies; and (7) whether forfeiture fits the circumstances and will work to serve the ultimate goal of protecting relationships of trust. However, forfeiture is not justified in every instance in which a fiduciary violates a legal duty because some violations are inadvertent or do not significantly harm the principal.

Second, the trial court must determine whether any monetary sum should be forfeited. The central purpose of forfeiture as an equitable remedy is not to compensate the injured principal, but to protect relationships of trust by discouraging disloyalty. Disgorgement is compensatory in the same sense as attorney fees, interest, and costs, but it is not damages. As a result, equitable forfeiture is distinguishable from an award of actual damages incurred as a result of a breach of fiduciary duty. In fact, a claimant need not prove actual damages to succeed on a claim for forfeiture because they address different wrongs. In addition to serving as a deterrent, forfeiture can serve as restitution to a principal who did not receive the benefit of the bargain due to his agent’s breach of fiduciary duty. Third, if the trial court determines there should be a forfeiture, it must determine what the amount should be. The amount of disgorgement is based on the circumstances and is within the trial court’s discretion. For example, it would be inequitable for an agent who performed extensive services faithfully to be denied all compensation if the misconduct was slight or inadvertent.

Id. (internal citations omitted).

The court then noted that the defendant did not plead for equitable forfeiture, though he did plead for breach of fiduciary duty and seek an award of damages. The defendant did not seek a jury finding on the plaintiff’s mental state or culpability, the value of its services, or the existence and amount of harm to defendant. The jury found that the plaintiff breached its fiduciary duty to the defendant, but awarded him no damages. The defendant then asked the trial court to enter an award of forfeiture damages in his motion for judgment notwithstanding the verdict, and in other post-trial motions. However, the defendant did not adequately brief the issue and the factors relevant to such a claim. The court of appeals held that the record did not support the trial court’s award, and remanded the case for further proceedings to allow the trial court to consider the appropriate legal standards, elements, and factors in finding that a forfeiture award should be entered:

Cooper did not identify or brief in the trial court the requirement that the trial court conclude there was a “clear and serious” breach of duty as a predicate to assessing a sum that should be awarded as an equitable forfeiture. Cooper does not cite to anything in the record, nor can we find anything in the record, to show that in the fashioning of the equitable forfeiture award the trial court considered the “principles” or “factors” enumerated in ERI Consulting. Accordingly, we conclude the claim of forfeiture should be remanded to the trial court for consideration of the factors described by the Texas Supreme Court.

Interesting Note: This court of appeals holds that a trial court’s analysis regarding an award of equitable forfeiture must be shown in the record. This is a departure from normal rules of procedure regarding a trial court’s findings. When a trial court makes factual findings in a dispute, a party may seek findings of fact and conclusions of law – that is true even if some issues are submitted to a jury. IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997).  Where neither party timely requests findings of fact, an appellate court must uphold the trial court’s judgment on any valid legal theory that was presented to the court and is supported by the evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). When no findings of fact are properly requested or filed, the trial court’s judgment implies all findings of fact necessary to support it. Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003); Carter v. William Sommerville and Son, Inc., 584 S.W.2d 274, 276 (Tex. 1979). Moreover, in the context of a jury trial, there can be omitted elements of a claim. Texas Rule of Civil Procedure 279 provides that where some elements of claim or defense are submitted to the jury, but others are not, the omitted elements are presumed in favor of the trial court’s judgment. Tex. R. Civ. P. 279. Accordingly, if a party does not want the omitted elements found in favor of the judgment, it has the burden to request express findings from the trial court on those omitted elements. Tex. R. Civ. P. 299; Insurance Co. of St. Louis v. Bellah, 373 S.W.2d 691, 692 (Tex. App.—Fort Worth 1963, no writ).

The Cooper court did not state in the opinion whether either party requested findings, though it is apparent from the opinion that the trial court did not enter any findings. Under normal procedure regarding a claim submitted to a jury, the omitted findings should have been found in favor of the judgment as some of the elements were submitted to the jury (breach of fiduciary duty) but others were not (mental culpability). However, equitable forfeiture is an equitable remedy that a trial court decides, not a jury. Burrow v. Arce, 997 S.W.2d 229, 245 (Tex. 1999). Yet, as there were no findings of fact requested, all of the findings necessary to support the factors and elements for equitable forfeiture should have been presumed in favor of the judgment. This opinion stands for the proposition that there appears to be a reverse presumption that a trial court does not follow the law or follow proper standards in the context of equitable forfeiture where the record is silent on the court’s process. A party (especially the winning party) should request the trial court to enter findings of fact and conclusions of law regarding an equitable forfeiture award. That is not necessarily common sense to an attorney in Texas. Normally, the prevailing party does not seek findings, because in their absence all findings will be presumed in favor of the judgment. The winning party in an equitable forfeiture case should request findings of fact and also prepare a draft of those findings for the court’s consideration.

Of course if findings are entered (or implied findings applied) that does not mean that a court of appeals should automatically affirm the judgment; the plaintiff can still challenge those implied findings for legal or factual sufficiency of the evidence. A party should specifically challenge the trial court’s finding of fact in its issues presented and in its arguments in the brief. In re Estate of Bessire, 399 S.W.3d 642, 648-49 (Tex. App.—Amarillo 2013, pet. denied); In re M.W., 959 S.W.2d 661, 664 (Tex. App.—Tyler 1997, writ denied). Appellate complaints must be directed at specific findings of fact rather than at the judgment as a whole. In re Estate of Bessire, 399 S.W.3d at 648-49; In re M.W., 959 S.W.2d at 664. A broad challenge to the sufficiency of evidence without specifying the challenged finding of fact preserves nothing for review. Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 927 (Tex. App.—Fort Worth 1994, writ denied). An appellant should brief an appeal of implied findings as if they had been given as express findings. Russell v. Russell, 865 S.W.2d 929 (Tex. 1993); Giangrosso v. Crosley, 840 S.W.2d 765, 769 (Tex. App.—Houston [1st Dist.] 1992, no writ); see also Mcdonald & Carlson, Texas Civil Practice 2d, §18.12-18.13. Unless the trial court’s findings are challenged by a point of error on appeal, they are binding upon the appellate court and the parties, and the appealing party waives any complaint regarding the evidence to support the findings. Cass v. Stephens, 156 S.W.3d 38, 77 (Tex. App.—El Paso 2004, pet. denied);  Northwest Park Homeowners Ass’n, Inc. v. Brundrett, 970 S.W.2d 700 (Tex. App.—Amarillo 1998, pet. denied); Whitehead v. Univ. of Tex., 854 S.W.2d 175, 178 (Tex. App.—San Antonio 1993, no writ). If a party fails to challenge findings of fact that support the judgment, the court of appeals should summarily affirm the judgment. Brundrett, 970 S.W.2d at 704.

So, where a trial court makes express findings, a party appealing from a trial court’s award of equitable forfeiture should specifically challenge via issue statements the factual findings in support of the award and then argue those issues in the body of the brief. Where there are no express findings, the appealing party should: 1) complain that the trial court did not make any findings and seek an abatement in the court of appeals so that the trial court make those findings; and 2) in an abundance of caution, argue that the specific implied findings are not supported by the evidence.

Recorded Webinar:  Trustee’s Duty and Right to Bring Claims On Behalf Of A Trust

Posted in Knowledge Library, Webinars
Recorded Webinar

Recorded Webinar

Thank you to everyone who joined us for the “Trustee’s Duty and Right to Bring Claims On Behalf Of A Trust” webinar on September 13.  The recorded webinar link is now available.  If you are interested in joining our next complimentary webinar, please send your request to dfjohnson@winstead.com.


David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, discusses the statutory and common-law requirements for a trustee to bring claims on behalf of a trust, the trustee’s right to control those claims, and potential ramifications regarding those rights and duties.

Target Audience: In-house counsel and other litigation contacts, trust officers, risk management contacts, and wealth advisors at banks and financial institutions.



Summary Judgment Appellate Issues (SBOT- Civil Appellate Practice 101)

Posted in Knowledge Library
30th Annual Civil Appellate Practice-Austin, Texas

30th Annual Civil Appellate Practice – Austin, Texas

David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, presented his paper on summary judgment appellate issues to the State Bar of Texas’s Civil Appellate Practice Course in Austin, Texas, on September 7, 2016.  David’s presentation covered the following issues: finality of summary judgments, standard of review for traditional and no-evidence motions for summary judgment, scope of review, appellate standards of review, challenging the denial of summary judgment motions, preservation of error hot topics, the appellate record and items missing from the record, and briefing tips and traps.  See below for presentation materials.

Click Here: Advanced Civil Appellate Course_DFJohnson

Click Here: Summary Judgment Appellate Issues in Texas

Court Holds That Trust No Longer Owned Vehicle Because It Allowed Beneficiary’s Wife To Drive It

Posted in Cases Decided, Texas Court of Appeals

In In the Interest of H.D.V., a husband appealed from a bench trial in a divorce proceeding. No. 05-15-00421-CV, 2016 Tex. App. LEXIS 9520 (Tex. App.—Dallas August 26, 2016, no pet. history). His mother had set up a trust for him and funded it with various assets, including a vehicle. The husband was the trustee and primary beneficiary of his trust and his children were named as secondary beneficiaries. The husband allowed his wife to drive the trust’s vehicle. In the divorce proceedings, the wife sought ownership of the vehicle, and the trial court awarded it to her. The husband appealed several issues, including the award of the vehicle to the wife.

On appeal, the husband contended that the trial court erred in awarding the wife the vehicle because it was owned by the trust. The trust agreement contained a spendthrift provision prohibiting the principal or income of the trust from being “seized, attached, or in any manner taken by judicial proceedings against any beneficiary or distributed on account of the debts, assignments, sale, divorce, or encumbrance of the beneficiary or distribute.” The husband maintained that awarding the car to wife violated the terms of the trust.

The court of appeals defined spendthrift trusts as

[T]rusts with language prohibiting the voluntary or involuntary alienation of the beneficial interest. Such a trust protects the beneficiary from his creditors by expressly forbidding alienation of his interest in the trust. The corpus, the accrued income which has not been paid to the beneficiary, and any future income to be paid to a beneficiary of a spendthrift trust are not subject to the claims of the creditors of the beneficiary while those amounts are in the hands of the trustee.

Id. The court of appeals also noted that the trust agreement gave the husband as trustee the power to “sell, exchange, give options upon, partition, convey, or otherwise dispose of . . . any property that may from time to time be or become part of the Trust estate.” As the husband testified at trial that the car was in the wife’s possession, the court of appeals held that there was evidence the vehicle had been conveyed or distributed from the trust and was no longer protected by the spendthrift provision. The court of appeals concluded that the “trial court did not abuse its discretion in awarding the car, which was in Wife’s possession, to her as separate property.”

Court Dismisses Appeal From Order Appointing A Temporary Administrator And Reverses Temporary Injunction

Posted in Cases Decided, Texas Court of Appeals

In Harris v. Taylor, Harris challenged a probate court’s interlocutory order appointing a temporary administrator and a temporary injunction order enjoining her from accessing certain financial accounts. No. 01-15-00925-CV, 2016 Tex. App. LEXIS 8110 (Tex. App.—Houston [1st Dist.] July 28, 2016, no pet. history). Taylor alleged that Harris had entered into joint accounts with rights of survivorship with their father at a time when the father was mentally incompetent, and therefore, Taylor alleged that Harris should not be named executor and sought an injunction precluding Harris from withdrawing funds from the accounts. The trial court entered an order that appointed a temporary administrator and granted the injunction, and Harris appealed.

The court of appeals dismissed the appeal from the order appointing a temporary administrator because that order was an interlocutory order from which there was no right of appeal. Regarding the temporary injunction, the court reversed that order because the order did not set the matter for trial. Texas Rule of Civil Procedure 683 requires that every temporary injunction order shall include an order setting the matter or trial on the merits. The court held that requirement was mandatory, and any order that omitted that requirement was subject to being declared void and dissolved. Accordingly, the court reversed the injunction order.

Webinar – Trustee’s Duty and Right to Bring Claims on Behalf of a Trust (Sept. 13 at 10:00 am CST)

Posted in Knowledge Library, Webinars

Join us for a presentation covering the statutory and common-law requirements for a trustee to bring claims on behalf of a trust, the trustee’s right to control those claims, and potential ramifications regarding those rights and duties.

Trustee’s Duty and Right to Bring Claims on Behalf of a Trust

Trustee’s Duty and Right to Bring Claims on Behalf of a Trust

Date: Tuesday, September 13, 2016

Time: 10:00 – 10:30 a.m. Central Time

Cost: Complimentary

Speaker: David F. Johnson

Continuing Education Credit Information: This course has been approved for MCLE credit by the State Bar of Texas Committee on MCLE in the amount of 0.5 credit hours

Who should attend: In-house counsel and other litigation contacts, trust officers, risk management contacts, and wealth advisors at banks and financial institutions



Court Enforces Trust Even Though The Trust Document Was Missing

Posted in Cases Decided, Texas Court of Appeals

In Gause v. Gause, a son brought suit to affirm the existence of a trust established by his father. No. 03-13-00768-CV, 2016 Tex. App. LEXIS 8138 (Tex. App.—Austin June 29, 2016, no pet. history). The father had executed a will and a trust document. After his death, a child read the documents to the other children and took the documents to her home. The documents later became missing. A child then procured a deed to real property from the mother that was supposed to be in the trust. Another child sued to hold the deed void and to establish the terms of the trust. The trial court ruled that the trust was effective, set forth its terms, and otherwise voided the deed.

The court of appeals affirmed. The court held that a deed or other document is not made ineffective by its destruction or loss. Rather, production of the original document is excused when it is established that the document has been lost or destroyed, and parol evidence of the contents of a writing is admissible if the original has been lost or destroyed. Loss or destruction of the document is established by proof of search for this document and inability to find it.

The court acknowledged that trusts involving real property had to meet the statute of frauds writing requirement, but that rule did not remove a trust from the operation of the general rule for lost documents. The court held that the evidence was sufficient to establish the terms of the trust and its existence.

Interesting Note: Texas cases have dealt with missing contracts and agreements, and similarly hold that the terms of those agreements can be established through parol evidence. For example, in Bank of America, N.A. v. Haag, a depositor created a trust account for his son’s education, but the signature card was lost. 37 S.W.3d 55, 58 (Tex. App.—San Antonio 2000, no writ). Later, his son withdrew all of the money in the account without the depositor’s permission. See id. The depositor testified that he signed a signature card and testified to its contents, i.e., he was the only one on the signature card and that his son was not allowed to withdraw the money. See id. The trial court awarded judgment to the depositor and against the bank. See id. The bank appealed and argued that its statements and after-the-fact documents proved that the account allowed the son to withdraw funds from the account. See id. The court of appeals, however, dismissed this argument:

Bank of America seeks to rely on the account statements that commenced in 1990 as an unambiguous written agreement which the parol evidence rule prohibits from being contradicted or varied by extrinsic evidence. However, the account statements do not evidence the creation of the account, but simply record the information that was transferred to Bank of America’s system from University Savings’ system. The account statements are not the operative legal document that created the account.

Id. at 58. The court of appeals approved the trial court’s admission of Haag’s parol testimony because there was evidence that a signature card existed at one time but was lost. See id. The court stated: “When a written, signed contract is lost or destroyed such that the party seeking to prove or enforce the agreement is unable to produce the written agreement in court, the existence and terms of the written contract may be shown by clear and convincing parol evidence.” Id. (citing EP Operating Co. v. MJC Energy Co., 883 S.W.2d 263, 267 n.1 (Tex. App.—Corpus Christi 1994, writ denied); Chakur v. Zena, 233 S.W.2d 200, 202 (Tex. Civ. App.—San Antonio 1950, no writ); Mark K. Glasser & Keith A. Rowley, On Parol: The Construction and Interpretation of Written Agreements and the Role of Extrinsic Evidence in Contract Litigation, 49 Baylor L. Rev. 657, 734-35 (1997)). The court concluded: “Because the written contractual documents evidencing the creation of Haag’s account were not introduced into evidence, the trial court did not err in admitting Haag’s testimony regarding the terms of the account.” Id. Based on the testimony of the plaintiff, the court affirmed the jury’s verdict that a trust account had been created and that the beneficiary had no right to withdraw the funds as the only person that may withdraw money from a trust account is the person claiming to be the trustee unless that person dies. See id. (citing Tex. Fin. Code Ann. § 65.106(a)). See also Armstrong v. Roberts, 211 S.W.3d 867 (Tex. App.—El Paso 2006, pet. denied) (testimony of bank’s representative regarding contents of missing second page of account agreement was sufficient to support trial court’s finding that account had survivorship effect); In re Estate of Berger, 174 S.W.3d 845, 846 (Tex. App.—Waco 2005, no pet.) (parol evidence admissible to prove contents of a trust agreement); Phillips v. Ivy, No. 10-02-00266-CV, 2004 Tex. App. LEXIS 7539 (Tex. App.—Waco Aug. 18 2004, pet. denied) (a surviving spouse was allowed to admit an “exemplar” CD of the type used during the relevant time to prove the missing document’s terms). Accordingly, missing trust documents, like other contracts, can be established by parol (oral) testimony.

Lost documents do provide a wrinkle to the normal burden of proof. One court held that to prove the contents of a lost bank agreement, the plaintiff has the burden to establish same by clear and convincing evidence. See Bank of America, N.A., 37 S.W.3d at 58. In Phillips v. Ivy, the court of appeals questioned whether the clear and convincing standard should apply to an agreement that does not involve real property. No. 10-02-00266-CV, 2004 Tex. App. LEXIS 7539, at *5-6 (Tex. App.—Waco Aug. 18 2004, pet. denied). In any event, because the jury instructions submitted the case to the jury on a clear and convincing evidence standard without objection by the parties, the court of appeals applied that standard. See id.

Court Affirms Dismissal Of Will Contest Based On Public Policy Arguments Arising From Sexual Abuse Allegations

Posted in Cases Decided, Texas Court of Appeals

In Merrick v. Helter, a daughter who accused her father of sexual abuse attempted to void her father’s will based on public policy grounds. No. 03-14-00708-CV, 2016 Tex. App. LEXIS 8966 (Tex. App.—Austin August 18, 2016, no pet. history).  Two days before the father died, he signed a will that left no property to his only child, the daughter, and explicitly disinherited her. After he died and his will was admitted to probate, the daughter filed a contest seeking to invalidate the will on public policy reasons and clear the way for her to inherit through intestate succession. Her principal theory was that her disinheritance violated “public policy”—namely Texas’s strong public policy against sexual abuse of children. As her factual predicate 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. The executor filed a motion to dismiss under Texas Rule of Civil Procedure 91a contesting whether the daughter’s “public policy” theory would be a viable basis in Texas law for the relief she sought even if her version of the facts were true. The probate court granted the Rule 91a motion and dismissed the daughter’s claim.

The court of appeals first addressed the relatively new Rule 91a motion to dismiss. The court noted that Rule 91a permits a party to “move to dismiss a cause of action on the grounds that it has no basis in law or fact.” Dismissal on a “no basis in law” ground is appropriate “if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.” The court held that whether this standard is met “depends ‘solely on the pleading of the cause of action.’”

The court then moved onto the central issue in the case: whether the daughter could void the will due to public policy reasons. The court noted that the general rule is that a person of sound mind has a perfect legal right to dispose of his property as he wishes and may disinherit an heir if he desires. The daughter relied on authority that certain terms in wills may be deemed unenforceable on “public policy” grounds. She argued that: Texas public policy strongly condemns sexual abuse, particularly sexual abuse of minors, or conduct aimed at concealing or aiding it; that the father used his will and her disinheritance from it as a means of “silencing” her from divulging the sexual abuse and subsequently “punishing” her for confronting him about it; and the will provision disinheriting her runs afoul of the aforementioned Texas public policy, rendering the provision unenforceable.

The court stated that will construction cases dealt with ascertaining the objective meaning of the language actually used within the “four corners of the will,” not from perceptions of the testator’s subjective intent. The court noted that the daughter’s “public policy” challenge was grounded entirely in asserted conditions or limitations that appear nowhere in the will’s text and allegations about the father’s subjective motives in drafting the will as he did. The court also held: “Even if we were to look beyond the will’s ‘four corners,’ Merrick failed to allege facts to support any theory that Cole conditioned Merrick’s inheritance on her remaining silent about the claimed sexual abuse.”

Finally, the court held:

But more critically, Merrick’s arguments erroneously presume that she has any entitlement to an inheritance from Cole in the first instance. On the contrary, as this Court recently observed in Anderson, “a prospective beneficiary’s interest in receiving an inheritance is merely in the nature of an expectancy or hope,” and it was for this reason we held that an inheritance falls short of the type of protected contractual or economic interest whose disturbance could be actionable through the tortious-interference tort. Undergirding that analysis, we explained, was the “perfect legal right” of a testator with sound mind “to dispose of his property as he wishes,” a right that includes, as previously noted, the prerogative of disinheriting an heir if the testator sees fit. Further, as Helter emphasizes, the Legislature has not seen fit either to require testators in Cole’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 a parent from inheriting from a child (the reverse of the situation here) who dies intestate (whereas here there is a will) where the parent has been convicted or placed on community supervision for certain crimes against that child, including sexual offenses (and no such criminal charges or dispositions occurred here). In the very least, we can say with certainty that the Legislature has not seen fit—at least as of yet—to authorize, let alone require, the recovery Merrick seeks.

The court of appeals affirmed the dismissal, finding that the daughter’s public policy argument found no support in the will, the factual allegations, or the law.