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August 31, 2017

Texting & Driving in Texas

On June 6, 2017, Texas Governor Greg Abbott announced that he had signed House Bill 62 into law.  The new law, codified as Texas Transportation Code Section 545.4251, states, in part, as follows:

“An operator commits an offense if the operator uses a portable wireless communication device to read, write, or send an electronic message while operating a motor vehicle unless the vehicle is stopped.”  See Tex. Transp. Code § 545.4251(b).

Accordingly, effective September 1, 2017, texting while driving within the State of Texas will be punishable by a fine of $25-$99 for first-time offenders, and $100-$200 for repeat offenders.  See Tex. Transp. Code § 545.4251(e).

It is important to note that the statute only covers operators who “read, write, or send an electronic message” via a “wireless communication device.”  See id.; see also Tex. Transp. Code § 545.425(a)(2) (“Wireless communication device” means a device that uses a commercial mobile service).

Further, the statute states specifically that it “preempts all local ordinances, rules or other regulations” adopted by cities and towns across the State relating to the use of “portable wireless communication devices” to “read, write, or send an electronic message.”  See Tex. Transp. Code § 545.4251(j).  However, this statute will not preempt more stringent cell phone bans in local ordinances, rules and regulations in at least 45 cities throughout the State.

While there are some affirmative defenses to this offense, it is important to consult an attorney at MCJ to help you protect your rights and to receive legislative updates moving forward.

 


August 15, 2017

Jurisdiction for Will Contest

As a will contest is a matter appertaining or incident to the estate of the deceased testator, subject matter jurisdiction of the contest usually lies (at least initially) in whichever court the application to probate the will is filed.  Tex. Estates Code § 32.001 (asserting that “[a]ll probate proceedings must be filed and heard in a court exercising original probate jurisdiction” and a “court exercising original probate jurisdiction also has jurisdiction of all matters related to the probate proceeding” as specified for that court).

Pursuant to Tex. Estates Code § 32.005, “[i]n a county in which there is a statutory probate court, the statutory probate court has exclusive jurisdiction of all probate proceedings, regardless of whether contested or uncontested.”  See also Carlisle v. Bennett, 801 S.W.2d 589, 592 (Tex. App.—Corpus Christi 1990, no writ) (noting that where courts have concurrent subject matter jurisdiction, the first court to acquire jurisdiction has dominant jurisdiction).

A district court has original jurisdiction over all proceedings concerning trusts, including questions related to construction and validity, except for the concurrent jurisdiction otherwise conferred by law on statutory probate courts under Tex. Estates Code § 32.006.

Accordingly, the probate court, at least initially, has subject matter jurisdiction over any suit contesting the will and trust.

Attorney’s Fees

Unless there is a statutory basis upon which a judgment for the recovery of attorney’s fees may be based, there is no support for an award of the same.  See State v. Estate of Brown, 802 S.W.2d 898 (Tex. App.—San Antonio 1991, no writ).  Any assertion that merely filing pleadings or motions is sufficient to support the judgment for attorney’s fees would be untenable.  See Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812 (Tex. 1983).

There is NO statutory basis for recovery of attorney’s fees for a will or trust contest.  Contra Tex. Estates Code § 352.052 (stating that a party seeking to have a will admitted to probate is entitled to recovery of attorney’s fees); Collins v. Smith, 53 S.W.3d 832 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (in contest of will and deed made by 90-year-old in poor health, jury finding that contestant’s attempt to probate earlier will was not made in good faith and with just cause upheld on appeal).  (*NOTE:  This provision would only apply if we were also seeking the probate of a prior will.).

If you want to contest a will, you may need to contact an attorney immediately to help you protect your rights.


August 1, 2017

Statute of Limitations on Counterclaims Against Decedent’s Estate

Generally, statute of limitations issues applicable to claims against an estate are governed by Chapter 355 of the Texas Estates Code (“Estates Code”).  Accordingly, § 355.065 of the Estates Code states that “[a] judgment may not be rendered in favor of a claimant on a claim for money that has not been (1) legally presented to the personal representative of an estate; and (2) wholly or partly rejected by the representative or disapproved by the court.”  In the case of a claim for money, the applicable statute of limitations for claims against an estate are some of the shortest in Texas jurisprudence.

However, commentary to § 355.065 of the Estates Code states that “[t]he requirement of presentment and disallowance of a claim before it can be sued upon applies only to ‘claims for money.’  It does not apply to unliquidated claims, such as tort claims.”  See Wilder v. Mossler, 583 S.W.2d 664 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) (emphasis added).

As such, the applicable statute of limitations set forth in the Texas Civil Practice and Remedies Code (“CPRC”) would govern these tort counterclaims, including any issues related thereto.

CPRC § 16.003 provides that a person must bring suit for a personal injury within a two-year limitations period.  See also Valverde v. Biela’s Glass & Aluminum Prods., 293 S.W.3d 751, 753 (Tex. App.—San Antonio 2009, pet. denied).  However, § 16.062 of the CPRC tolls for one year any action in favor of or against a dead person.  See CPRC § 16.062(a).  Thus, if a plaintiff dies before suit is filed, there can be up to one additional year to bring an action.  Likewise, if a defendant dies before suit is filed, the plaintiff has an additional year to bring an action.  Realize, however, that if a personal representative is appointed within those 12 months, then the tolling is only from the date of death to the date the personal representative qualifies.  See id. at § 16.062(b); see also Sowell v. Dresser Indus., 866 S.W.2d 803, 807 (Tex. App.—Beaumont 1993, writ denied).  The presumption is that a personal representative will sue or defend as appropriate.

In the event there is an issue with the expiration of the above-described statute of limitations period, § 16.068 of the CPRC provides for the following:

If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.

(emphasis added); see also Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex. 1990); Ware v. Everest Grp., 238 S.W.3d 855, 866 (Tex. App.—Dallas 2007, pet. denied).

There may, however, be issues with the applicability of this “relation back doctrine” if the underlying lawsuit was brought solely as a wrongful death cause of action, as the wrongful death cause of action belongs solely the to the surviving spouse, children and the parents of the deceased, but not the heirs at law or the estate of the deceased.  See Sowell, 866 S.W.2d at 807.  Further, while the “relation back doctrine” operates to cure potential statute of limitations problems, failing to name the proper party when suing or defending an estate can be fatal.  Estates, guardianships and trusts are not legal entitles and cannot sue or be sued.  The proper defendant or counter-defendant, the personal representative of the estate, must be made a party.  See, e.g., Price v. Estate of Anderson, 522 S.W.2d 690 (Tex. 1975); Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex. 1987).

If you have a claim against someone and they die, you may need to contact an attorney immediately to protect your rights.


June 26, 2017

Contesting a Will

In Texas (as in many states), if a beneficiary contests the will and loses, and if the will contains a no-contest clause and it is given effect, the beneficiary forfeits her legacy.  There is a very narrow exception that would allow the beneficiary to receive the designated benefits under the will which requires the court to find that, even though the beneficiary loses the will contest, she brought the action in good faith and had just cause to contest the will.  Tex. Prop. Code § 254.005; see Hammer v. Powers, 819 S.W.2d 669 (Tex. App.—Fort Worth 1991, no writ) (held in favor of will based on the affidavits and testimony provided).

Testamentary Capacity.  As is true in most states, a will can be contested at the time the will is offered for probate, or within two years after the will has been formally admitted to probate (i.e., after due execution has been proved).  In fact, most will contests are filed within that two-year period after the will has been probated.  Once the will has been admitted to probate, the burden as to testamentary capacity shifts to the contestant.

At the time of executing the will, the testator must have had sufficient capacity to: understand the nature of the act he was doing; know the nature and character of his property; know the objects of his bounty; and understand the dispositions he was making.

Capacity to make a will may exist even where capacity to make a contract does not.  The fact that a testator was committed to a mental hospital shortly before and shortly after executing a will, while of strong probative force, is not conclusive evidence of lack of capacity; a juror may still find the testator met the four-point test above.  Likewise, evidence that the testator was old, feeble, and in poor health is, by itself, insufficient to establish a lack of testamentary capacity.  Rich v. Rich, 615 S.W.2d 795 (Tex. Civ. App. 1980).

Evidence of lack of testamentary capacity at times other than the time of execution can be used to establish incapacity on the date the will was executed if such evidence is probative of a lack of capacity at the time the will was executed.

Undue Influence.  To establish undue influence, the contestant must prove:  (1) Existence and exertion of an influence.  The contestant must prove that a dominant influence existed and was exerted upon the testator; (2) Overpowers mind and will of testator.  One contending that the testator was unduly influenced must further prove that the effect of the influence was to overpower the mind and free will of testator; and (3) Will would not have been executed “but for” that influence.  The will contestant must prove that the product of the influence is a will that would not have been executed “but for” the influence.  “[T]he influence is no undue unless the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence . . . [O]ne may request or even importune and entreat another to execute a favorable dispositive instrument; but unless [these] are shown to be so excessive as to subvert the will of the maker, they will not taint the validity of the instrument with undue influence.”  Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963).

“[A] will cannot be set aside on proof of facts which at most do no more than show an opportunity to exercise influence.”  Rothermel, 369 S.W.2d at 917.  Thus, regardless of the type of relationship that existed between the testator and the beneficiary, the elements of undue influence must be met.  Evans v. May, 923 S.W.2d 712 (Tex. Civ. App. 1996).

Further, mere susceptibility to influence due to old age or physical condition is insufficient to prove undue influence.  This evidence may be considered as establishing a physical incapacity to resist or the susceptibility of the testator’s mind to an influence exerted.  However, this evidence does not establish that the testator’s mind was in fact subverted and overpowered at the time the will was executed.

Finally, the mere fact that the will makes an unnatural disposition that favors some family members over others is not enough to establish undue influence.  “[A] will may not be set aside because some interested party, or jury, disagrees with the disposition.”  In re Estate of Davis, 920 S.W.2d 463 (Tex. App. 1996) (reversing jury verdict).  It is only where all reasonable explanation for the devise is lacking that the trier of facts may take this circumstance as a badge of disorder or of undue influence.

Testator Did Not Know Contents of Will.  Texas recognizes this unusual and rarely encountered ground for denial of probate if suspicious circumstances are present.  A competent testator is presumed to know the contents of a testamentary instrument he has signed, unless a set of circumstances exists that casts suspicion on the issue.  Gilkey v. Allen, 617 S.W.2d 308 (Tex. Civ. App. 1981).  This presumption arises even if the testator was blind or illiterate.


June 9, 2017

Welcome to our new website!


August 31, 2017


Texting & Driving in Texas

MCJ

August 15, 2017


Jurisdiction for Will Contest

MCJ

August 1, 2017


Statute of Limitations on Counterclaims Against Decedent’s Estate

MCJ

June 26, 2017


Contesting a Will

MCJ

June 9, 2017


Welcome to our new website!

Author's Name

This blog is made available by McWhorter, Cobb & Johnson, LLP, and its attorneys solely for educational and informational purposes. This blog is not intended to and does not provide legal advice. By using this blog, you agree that no attorney client relationship has been created. This blog is not a substitute for competent legal advice from a licensed attorney.


August 31, 2017

Texting & Driving in Texas

On June 6, 2017, Texas Governor Greg Abbott announced that he had signed House Bill 62 into law.  The new law, codified as Texas Transportation Code Section 545.4251, states, in part, as follows:

“An operator commits an offense if the operator uses a portable wireless communication device to read, write, or send an electronic message while operating a motor vehicle unless the vehicle is stopped.”  See Tex. Transp. Code § 545.4251(b).

Accordingly, effective September 1, 2017, texting while driving within the State of Texas will be punishable by a fine of $25-$99 for first-time offenders, and $100-$200 for repeat offenders.  See Tex. Transp. Code § 545.4251(e).

It is important to note that the statute only covers operators who “read, write, or send an electronic message” via a “wireless communication device.”  See id.; see also Tex. Transp. Code § 545.425(a)(2) (“Wireless communication device” means a device that uses a commercial mobile service).

Further, the statute states specifically that it “preempts all local ordinances, rules or other regulations” adopted by cities and towns across the State relating to the use of “portable wireless communication devices” to “read, write, or send an electronic message.”  See Tex. Transp. Code § 545.4251(j).  However, this statute will not preempt more stringent cell phone bans in local ordinances, rules and regulations in at least 45 cities throughout the State.

While there are some affirmative defenses to this offense, it is important to consult an attorney at MCJ to help you protect your rights and to receive legislative updates moving forward.

 


August 15, 2017

Jurisdiction for Will Contest

As a will contest is a matter appertaining or incident to the estate of the deceased testator, subject matter jurisdiction of the contest usually lies (at least initially) in whichever court the application to probate the will is filed.  Tex. Estates Code § 32.001 (asserting that “[a]ll probate proceedings must be filed and heard in a court exercising original probate jurisdiction” and a “court exercising original probate jurisdiction also has jurisdiction of all matters related to the probate proceeding” as specified for that court).

Pursuant to Tex. Estates Code § 32.005, “[i]n a county in which there is a statutory probate court, the statutory probate court has exclusive jurisdiction of all probate proceedings, regardless of whether contested or uncontested.”  See also Carlisle v. Bennett, 801 S.W.2d 589, 592 (Tex. App.—Corpus Christi 1990, no writ) (noting that where courts have concurrent subject matter jurisdiction, the first court to acquire jurisdiction has dominant jurisdiction).

A district court has original jurisdiction over all proceedings concerning trusts, including questions related to construction and validity, except for the concurrent jurisdiction otherwise conferred by law on statutory probate courts under Tex. Estates Code § 32.006.

Accordingly, the probate court, at least initially, has subject matter jurisdiction over any suit contesting the will and trust.

Attorney’s Fees

Unless there is a statutory basis upon which a judgment for the recovery of attorney’s fees may be based, there is no support for an award of the same.  See State v. Estate of Brown, 802 S.W.2d 898 (Tex. App.—San Antonio 1991, no writ).  Any assertion that merely filing pleadings or motions is sufficient to support the judgment for attorney’s fees would be untenable.  See Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812 (Tex. 1983).

There is NO statutory basis for recovery of attorney’s fees for a will or trust contest.  Contra Tex. Estates Code § 352.052 (stating that a party seeking to have a will admitted to probate is entitled to recovery of attorney’s fees); Collins v. Smith, 53 S.W.3d 832 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (in contest of will and deed made by 90-year-old in poor health, jury finding that contestant’s attempt to probate earlier will was not made in good faith and with just cause upheld on appeal).  (*NOTE:  This provision would only apply if we were also seeking the probate of a prior will.).

If you want to contest a will, you may need to contact an attorney immediately to help you protect your rights.


August 1, 2017

Statute of Limitations on Counterclaims Against Decedent’s Estate

Generally, statute of limitations issues applicable to claims against an estate are governed by Chapter 355 of the Texas Estates Code (“Estates Code”).  Accordingly, § 355.065 of the Estates Code states that “[a] judgment may not be rendered in favor of a claimant on a claim for money that has not been (1) legally presented to the personal representative of an estate; and (2) wholly or partly rejected by the representative or disapproved by the court.”  In the case of a claim for money, the applicable statute of limitations for claims against an estate are some of the shortest in Texas jurisprudence.

However, commentary to § 355.065 of the Estates Code states that “[t]he requirement of presentment and disallowance of a claim before it can be sued upon applies only to ‘claims for money.’  It does not apply to unliquidated claims, such as tort claims.”  See Wilder v. Mossler, 583 S.W.2d 664 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) (emphasis added).

As such, the applicable statute of limitations set forth in the Texas Civil Practice and Remedies Code (“CPRC”) would govern these tort counterclaims, including any issues related thereto.

CPRC § 16.003 provides that a person must bring suit for a personal injury within a two-year limitations period.  See also Valverde v. Biela’s Glass & Aluminum Prods., 293 S.W.3d 751, 753 (Tex. App.—San Antonio 2009, pet. denied).  However, § 16.062 of the CPRC tolls for one year any action in favor of or against a dead person.  See CPRC § 16.062(a).  Thus, if a plaintiff dies before suit is filed, there can be up to one additional year to bring an action.  Likewise, if a defendant dies before suit is filed, the plaintiff has an additional year to bring an action.  Realize, however, that if a personal representative is appointed within those 12 months, then the tolling is only from the date of death to the date the personal representative qualifies.  See id. at § 16.062(b); see also Sowell v. Dresser Indus., 866 S.W.2d 803, 807 (Tex. App.—Beaumont 1993, writ denied).  The presumption is that a personal representative will sue or defend as appropriate.

In the event there is an issue with the expiration of the above-described statute of limitations period, § 16.068 of the CPRC provides for the following:

If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.

(emphasis added); see also Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex. 1990); Ware v. Everest Grp., 238 S.W.3d 855, 866 (Tex. App.—Dallas 2007, pet. denied).

There may, however, be issues with the applicability of this “relation back doctrine” if the underlying lawsuit was brought solely as a wrongful death cause of action, as the wrongful death cause of action belongs solely the to the surviving spouse, children and the parents of the deceased, but not the heirs at law or the estate of the deceased.  See Sowell, 866 S.W.2d at 807.  Further, while the “relation back doctrine” operates to cure potential statute of limitations problems, failing to name the proper party when suing or defending an estate can be fatal.  Estates, guardianships and trusts are not legal entitles and cannot sue or be sued.  The proper defendant or counter-defendant, the personal representative of the estate, must be made a party.  See, e.g., Price v. Estate of Anderson, 522 S.W.2d 690 (Tex. 1975); Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex. 1987).

If you have a claim against someone and they die, you may need to contact an attorney immediately to protect your rights.


June 26, 2017

Contesting a Will

In Texas (as in many states), if a beneficiary contests the will and loses, and if the will contains a no-contest clause and it is given effect, the beneficiary forfeits her legacy.  There is a very narrow exception that would allow the beneficiary to receive the designated benefits under the will which requires the court to find that, even though the beneficiary loses the will contest, she brought the action in good faith and had just cause to contest the will.  Tex. Prop. Code § 254.005; see Hammer v. Powers, 819 S.W.2d 669 (Tex. App.—Fort Worth 1991, no writ) (held in favor of will based on the affidavits and testimony provided).

Testamentary Capacity.  As is true in most states, a will can be contested at the time the will is offered for probate, or within two years after the will has been formally admitted to probate (i.e., after due execution has been proved).  In fact, most will contests are filed within that two-year period after the will has been probated.  Once the will has been admitted to probate, the burden as to testamentary capacity shifts to the contestant.

At the time of executing the will, the testator must have had sufficient capacity to: understand the nature of the act he was doing; know the nature and character of his property; know the objects of his bounty; and understand the dispositions he was making.

Capacity to make a will may exist even where capacity to make a contract does not.  The fact that a testator was committed to a mental hospital shortly before and shortly after executing a will, while of strong probative force, is not conclusive evidence of lack of capacity; a juror may still find the testator met the four-point test above.  Likewise, evidence that the testator was old, feeble, and in poor health is, by itself, insufficient to establish a lack of testamentary capacity.  Rich v. Rich, 615 S.W.2d 795 (Tex. Civ. App. 1980).

Evidence of lack of testamentary capacity at times other than the time of execution can be used to establish incapacity on the date the will was executed if such evidence is probative of a lack of capacity at the time the will was executed.

Undue Influence.  To establish undue influence, the contestant must prove:  (1) Existence and exertion of an influence.  The contestant must prove that a dominant influence existed and was exerted upon the testator; (2) Overpowers mind and will of testator.  One contending that the testator was unduly influenced must further prove that the effect of the influence was to overpower the mind and free will of testator; and (3) Will would not have been executed “but for” that influence.  The will contestant must prove that the product of the influence is a will that would not have been executed “but for” the influence.  “[T]he influence is no undue unless the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence . . . [O]ne may request or even importune and entreat another to execute a favorable dispositive instrument; but unless [these] are shown to be so excessive as to subvert the will of the maker, they will not taint the validity of the instrument with undue influence.”  Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963).

“[A] will cannot be set aside on proof of facts which at most do no more than show an opportunity to exercise influence.”  Rothermel, 369 S.W.2d at 917.  Thus, regardless of the type of relationship that existed between the testator and the beneficiary, the elements of undue influence must be met.  Evans v. May, 923 S.W.2d 712 (Tex. Civ. App. 1996).

Further, mere susceptibility to influence due to old age or physical condition is insufficient to prove undue influence.  This evidence may be considered as establishing a physical incapacity to resist or the susceptibility of the testator’s mind to an influence exerted.  However, this evidence does not establish that the testator’s mind was in fact subverted and overpowered at the time the will was executed.

Finally, the mere fact that the will makes an unnatural disposition that favors some family members over others is not enough to establish undue influence.  “[A] will may not be set aside because some interested party, or jury, disagrees with the disposition.”  In re Estate of Davis, 920 S.W.2d 463 (Tex. App. 1996) (reversing jury verdict).  It is only where all reasonable explanation for the devise is lacking that the trier of facts may take this circumstance as a badge of disorder or of undue influence.

Testator Did Not Know Contents of Will.  Texas recognizes this unusual and rarely encountered ground for denial of probate if suspicious circumstances are present.  A competent testator is presumed to know the contents of a testamentary instrument he has signed, unless a set of circumstances exists that casts suspicion on the issue.  Gilkey v. Allen, 617 S.W.2d 308 (Tex. Civ. App. 1981).  This presumption arises even if the testator was blind or illiterate.


June 9, 2017

Welcome to our new website!

August 31, 2017


Texting & Driving in Texas

MCJ

August 15, 2017


Jurisdiction for Will Contest

MCJ

August 1, 2017


Statute of Limitations on Counterclaims Against Decedent’s Estate

MCJ

June 26, 2017


Contesting a Will

MCJ

June 9, 2017


Welcome to our new website!

Author's Name

This blog is made available by McWhorter, Cobb & Johnson, LLP, and its attorneys solely for educational and informational purposes. This blog is not intended to and does not provide legal advice. By using this blog, you agree that no attorney client relationship has been created. This blog is not a substitute for competent legal advice from a licensed attorney.