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Tag: Preparing will
Estoppel I’ve written about how accepting benefits under a will may prevent or estop a person from contesting that will. In a 2014 case a trial court ruled that a party was estopped from probating a newer will and from...Read More
The Texas Legislature has passed and the governor has signed House Bill 3674 which amends §132.001 of the Civil Practice and Remedies Code and states that an unsworn declaration “may be used in lieu of a written sworn...Read More
To see a discussion of the requirements of executing a will, click here. What happens if the witnesses sign the will before the testator? Do the witnesses have to sign the will after the testator? As long as the execution of the...Read More
At www.TexasInheritance.Com, we handle contested probate matters, usually involving litigation. We do not prepare wills. However, every lawyer receives questions about people preparing their own wills. We are often asked...Read More
Texas recognized oral wills (nuncupative wills) up to the year 2007. Now, oral wills cannot be offered for probate. I’ve written about oral wills on my main site, www.TexasInheritance.Com. To read more about oral wills, go...Read More
Forged will starts limitations Is a forged will good for something? A forged will can be used to determine when the statute of limitations starts running says the San Antonio Court of Appeals. A man died. A will was offered and...Read More
In a recent case, the testator had what was obviously a self made will. It was not prepared by a lawyer. As you might expect in that situation, the will was contested. The contest involved the location of the signature of the...Read More
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If an attorney prepares a will can the will name him as a beneficiary? The quick answer is no, it can’t. Texas has a statute that says a devise or bequest of property in a will to an attorney or to an heir or employee of the attorney who prepares or supervises the preparation of the will is void. EC §254.003.
In a recent case, an attorney prepares a will. He had a woman working in his office that was an independent contractor. She claimed that she was not an employee of the attorney. She was a paralegal but she just did occasional work for the attorney. She also did occasional work for other attorneys who shared office space with the attorney who drafted the will. The will made her a beneficiary and also appointed her as the executor of the will.
The Will Contest
A sister of the testator contested the provisions of the will leaving part of the estate to the paralegal. The court agreed with the sister finding that the paralegal met the definition of employee under the statute and ordered the paralegal to return all of the property that she had received to the heirs of the testator. The court also ordered the paralegal to pay the attorney fees of the sister.
The paralegal appealed claiming that the statute did not apply to her since she was not an employee. The appeals court disagreed and denied her appeal. Jones v Krown.
A 2015 case out of Michigan indicates that Michigan law is different from Texas law. The Michigan case held that a will prepared by an attorney that left the attorney property was not necessarily void. The court held that under Michigan law, if the attorney could plead and prove that he did not unduly influence the testator, the will could be probated. The difference between Michigan and Texas is that a Texas statute declares the will void. There is no need to find that the attorney used undue influence. In Michigan, the rule is in their attorney’s Rules of Professional Conduct which are guidelines for attorneys’ conduct but don’t have the force of law like a statute. The attorney is presumed to have unduly influenced the testator but if the attorney can plead and prove that he did not exert undue influence, the will and the gift can be upheld. Florida has a similar rule, e.g. a gift to the attorney who prepares the will or his employees is not void but only voidable if undue influence can be shown.
If you have a will and you decide to make changes to it, can you take out a page and replace it? If you replace pages and then re-execute the will with the formalities required of a will, you can make changes. However, if you...Read More
In Texas, there are two sets of requirements for wills. One applies to the rare situation where wills are wholly in the handwriting of the testator and the other one applies to the more common situation where wills are not...Read More
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Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization. We handle litigation cases related to inheritance disputes including will contest, related property disputes and associated torts throughout Texas. Our principal office is in Lantana, Texas. Contact Robert