In In the Estate of Mahaffey, a testatrix executed a new will nine days before she died of cancer. No. 04-19-00122-CV, 2019 Tex. App. LEXIS 11171 (Tex. App.—San Antonio December 27, 2019, no pet. history). A niece offered the new will for probate. The new will cut out one of the testatrix’s sisters, and

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 probate an earlier will and

In Hawes v. Peden, a client sued a deceased attorney’s estate and her law firm in district court due to the attorney failing to finish the representation before her death. No. 06-19-00053-CV, 2019 Tex. App. LEXIS 10841 (Tex. App.—Texarkana December 16, 2019, no pet. history). The law firm filed a plea to the jurisdiction,

In Lavizadeh v. Moghadam, a trustee purchased real estate and then had a dispute with a guarantor. No. 05-18-00955-CV, 2019 Tex. App. LEXIS 10835 (Tex. App.—Dallas December 13, 2019, no pet. history). The trial court ruled against the trustee, and the trustee objected to the failure to have a jury trial. The trial court overruled that objection, and the trustee appealed. The court of appeals first held that the trustee waived any issue on the procedure by expressly agreeing to same:

During the hearing conducted prior to jury selection, the Trust’s counsel initially stated “for the record that we’re here on a jury trial setting” and he believed “factual issues [existed] that may need to be presented to the jury. . .”, however, he subsequently agreed to Moghadam’s counsel’s proposal to stipulate all exhibits into evidence. More specifically, the Trust agreed, “it would be appropriate” to have a “summary trial by the Judge on those issues, and then if we need a jury on a fact issue . . . “ the parties would return to court for further proceedings. Following this exchange and an off-the-record discussion, the Trust offered 18 exhibits into evidence, and the court admitted them. Moghadam’s exhibits were likewise deemed admitted at the same time although submitted electronically a few days later. We conclude the Trust’s agreement with this procedure waived any objection to the court’s refusal to submit any issues to a jury.

Id. The court also held that any failure to provide a jury trial was harmless as there were no questions of fact: “The right to a jury trial attaches only when controverted questions of fact exist.” Id.
Continue Reading

In Leland House v. Webb, a husband sued his deceased wife’s executor to quiet title in real estate that she obtained from her aunt. No. 06-19-00054-CV, 2019 Tex. App. LEXIS 10012 (Tex. App.—Texarkana November 19, 2019, no pet. history). The executor argued that the transfer was not a sale of property, but was a gift. The trial court ruled for the executor, and the husband appealed. The court of appeals first reviewed the law regarding community property and presumptions concerning same:

In general, characterization of property is determined by the time and circumstances of its acquisition, often referred to as the ‘inception of title’ doctrine.” It is presumed that property possessed by spouses during marriage is community property, but this presumption can be overcome by clear and convincing evidence that it is the separate property of a spouse. Property a spouse acquires “during marriage by gift, devise, or descent” is separate property.

Id. The court then stated that it was undisputed that the aunt conveyed tracts of land to the wife while she was married to the husband. The court held that the property was presumed to be community property unless clear and convincing evidence demonstrated that it was a gift.

The court then reviewed the deed conveying the property, which stated:

I, ELIZABETH SPRADLEY BAUMAN, . . . for and in consideration of the love and affection which I have for my niece, the Grantee, have GRANTED, SOLD AND CONVEYED, and by these presents do GRANT, SELL AND CONVEY unto DIAN[N]E HOUSE . . . all of the surface (without the present merchantable timber) and mineral estate in the following described real property in Nacogdoches County, Texas, to-wit: . . . “Big Loco Farm” . . . and “Little Farm.”

Id. The husband argued that the deed does not contain the word “gift” or indicate that it is to be the wife’s sole and separate property. The court disagreed:
Continue Reading

Selected by Texas Bar Today as a “Top 10 Blog Post”

In In the Estate of Johnson, a decedent’s daughter filed a will contest after accepting over $146,000 from the estate. No. 05-18-01193-CV, 2019 Tex. App. LEXIS 9646 (Tex. App.—Dallas November 4, 2019, no pet.). The executrix filed a motion in limine challenging the daughter’s standing and asked the trial court to dismiss the will contest, which the trial court did. The daughter appealed.

The court of appeals first addressed whether the daughter had standing to file a will contest. The court held that “[d]evisees and heirs-at-law are interested persons.” Id. (citing Tex. Est. Code § 20.018). The court concluded:

Though Lisa Jo claims that Tia did not meet this burden because she failed to introduce the Will into evidence with her petition, we assume the trial court took judicial notice of the Will and its contents, as well as the inventory, which was in the trial court’s files. Because the face of the Will established Tia’s standing as a devisee and an heir-at-law, Tia satisfied her threshold burden.

Id. The court then reviewed the estoppel defense arising from the daughter’s acceptance of estate assets. The court reviewed the law and its own precedent on estoppel in this context:
Continue Reading

In In re Troy S. Poe Trust, trustees of a trust that was embroiled in litigation filed suit to modify the trust to increase the number of trustees and change the method for trustees to vote on issues. No. 08-18-00074-CV, 2019 Tex. App. LEXIS 7838 (Tex. App.—El Paso August 28, 2019, no pet.). After the trial court granted the modification, a party to the proceeding appealed and argued that the trial court erred in refusing him a jury trial on initial issues of fact.

The court of appeals first looked at a party’s general right to a jury trial in Texas:

 The Texas Constitution addresses the right to a jury trial in two distinct provisions. The first, found in the Bill of Rights, provides that the “right of trial by jury shall remain inviolate.” But this provision has been held to “maintain a right to trial by jury for those actions, or analogous actions, tried by jury when the Constitution was adopted in 1876.” And Richard has not shown that trust modifications were tried to a jury in 1876 or before. The Texas Constitution also contains another provision governing jury trials in its judiciary article: “In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature.” This section is broader than the Section 15 right to jury in the sense that it does not depend on court practice in 1876 or before. It is narrower in the sense that it only applies to “causes.” But the Texas Supreme Court views the term “causes” expansively, and that court has only restricted the right to jury trial in specific contexts where “some special reason” made jury trials unsuitable, such civil contempt proceedings, election contests, suits to remove a sheriff, and appeals in administrative proceedings. The Texas Constitution also gives the legislature authority to regulate jury trials to maintain their “purity and efficiency.” In that regard, we look to the statutory framework to determine whether parties possess a right to a jury trial.

Id. (internal citation omitted). The court then analyzed whether the Texas Property Code waived a party’s right to a jury trial regarding a claim to modify a trust:
Continue Reading

In Klinek v. Luxeyard, Inc., a company sued its majority shareholder in a suit for breach of fiduciary duty arising from a pump-and-dump scheme and later settled that claim. No. 14-17-00899-C, 2019 Tex. App. LEXIS 9421 (Tex. App.—Houston [14th Dist.] October 29, 2019, no pet. history). The company then sued a third party for

In Melton v. Waddell, a sister sued her brother for breach of fiduciary duty for misapplying funds in a joint account and not properly allocating revenues from real estate that they owned as tenants in common. No. 07-18-00105-CV, 2019 Tex. App. LEXIS 9531 (Tex. App.—Amarillo October 30, 2019, no pet. history). The brother filed