David F. Johnson presented his paper “Practical Issues Concerning Power of Attorney Transactions” to the Annual Legal Conference 2021 hosted by the Texas Bankers Association and the Southwest Association of Bank Counsel on October 7, 2021.
This presentation addressed many of the common issues that financial institutions face when a
power of attorney
Court Properly Admitted A Will To Probate Where The Evidence Did Not Establish Mental Incompetence Or Undue Influence As A Matter Of Law
By David Fowler Johnson on
Posted in Cases Decided, Texas Court of Appeals
In Neal v. Neal, the decedent died leaving three sons. No. 01-19-00427-CV, 2021 Tex. App. LEXIS 2051 (Tex. App.—Houston [1st Dist.] March 18, 2021, no pet. history). She had several wills in the last five years of her life, but her final will left all of her estate to one son. The other sons alleged that the last will was invalid due to mental incompetence and due to undue influence. The trial court found against the contestants and admitted the will to probate, and the contestants appealed.
Court Holds That A Defendant Cannot File A No-Evidence Summary Judgment Based On A Self-Interested Transaction Due To The Presumption Of Unfairness
By David Fowler Johnson on
Posted in Cases Decided, Texas Court of Appeals
In In re Estate of Klutts, a son held his mother’s power of attorney when he assisted in securing a new 2008 will, which enhanced his share of the estate. No. 02-18-00356-CV, 2019 Tex. App. LEXIS 11063 (Tex. App.—Fort Worth December 19, 2019, no pet. history). Siblings attempted to…
Court Held That A Power Of Attorney Agent Had Authority To Sue On Behalf Of The Principal And Affirmed A Finding That A Mineral Deed Was Procured By Fraud And Undue Influence
By David Fowler Johnson on
Posted in Cases Decided, Texas Court of Appeals
In Cortes v. Wendl, an elderly woman signed a deed conveying her mineral rights to two individuals. No. 06-17-00121-CV, 2018 Tex. App. LEXIS 4457 (Tex. App.—Texarkana June 20, 2018, no pet.). When the woman’s nurse and friend learned of the transaction, she obtained a power of attorney and filed a…
Court Affirms Judgment That Power-Of-Attorney Holder Converted Funds By Withdrawing Them From A Joint Account
By David Fowler Johnson on
Posted in Cases Decided, Texas Court of Appeals
In Fletcher v. Whitaker, a brother withdrew $25,000 from a joint bank account while the owner of the funds (decedent) was still alive. No. 02-17-00138-CV, 2018 Tex. App. LEXIS 8329 (Tex. App.—Fort Worth October 11, 2018, no pet. history). The parties to the joint account were the decedent and…
Court Held That Power-Of-Attorney Holder Was Not Authorized To Name Himself As A Beneficiary Of The Principal’s Insurance Policy, But Could Name His Sister
By David Fowler Johnson on
Posted in Items of Interest
In Transamerica Life Ins. Co. v. Quarm, Thomas Quarm obtained a life insurance policy and designated his mother as his beneficiary and his brother, Nicholas, as the alternate beneficiary. No. EP-16-CV-295-KC, 2017 U.S. Dist. LEXIS 192192 (W.D. Tex. November 13, 2017). Quarm later purchased an annuity product with the…
New Texas Statutes That Impact Fiduciaries Become Effective Today (9/1/2017)
By David Fowler Johnson on
Posted in Items of Interest
The Texas Legislature passed, and the Governor has signed, a new act that creates new protections for vulnerable individuals. This impacts financial institutions, broker/dealers, and investment advisors. The Texas Legislature now requires employees to report suspected incidences of financial exploitation of vulnerable persons (those over 65 or those with disabilities) …
Court Affirms Sanctions Order Against Fiduciary Due To Discovery Abuses
By David Fowler Johnson on
Posted in Cases Decided, Texas Court of Appeals
In Eng v. Kolbe, a mother sued her daughter for abusing a power of attorney document. No. 03-15-00409-CV, 2017 Tex. App. LEXIS 2680 (Tex. App.—Austin March 30, 2017). The daughter was assisting her aging parents with their finances as her father suffered from dementia and her mother suffered from…
Court Refuses To Enforce Arbitration Clause Due To Lack Of Mental Capacity
By David Fowler Johnson on
Posted in Cases Decided, Texas Court of Appeals
In Oak Crest Manor Nursing Home, LLC v. Barba, a plaintiff sued a nursing home for negligently allowing a patient with mental disorders to leave the facility and jump from a bridge in an attempt to commit suicide. No. 03-16-00514-CV, 2016 Tex. App. LEXIS 12710 (Tex. App.—Austin December 1…
Court Affirms Power Of Attorney Holder’s Right To Revoke Gift
By David Fowler Johnson on
Posted in Cases Decided, Texas Court of Appeals
In Wise v. Mitchell, a power of attorney holder, Mitchell, filed a revocation of a deed that the principal issued to Wise. No. 05-15-00610-CV, 2016 Tex. App. LEXIS 6502 (Tex. App.—Dallas June 20, 2016, no pet. history). After the principal’s death, Mitchell, as executor, moved for partial summary judgment…