Tag: wills

Court Reversed Order Appointing Temporary Administrator Due To A Lack Of A Bond

In In re Robinett, a party filed a petition for writ of mandamus, challenging a trial court’s order appointing a temporary administrator. No. 03-21-00649-CV, 2022 Tex. App. LEXIS 926 (Tex. App.—Austin February 9, 2022, original proc.). The petitioner complained that the trial court failed to hold an evidentiary hearing and also appointed a temporary administrator without a bond. Regarding the hearing complaint, the court of appeals disagreed:

Under Section 55.001 of the Texas Estates Code, “[a] person interested in an estate may, at any time before the court decides an issue in a proceeding, file written opposition regarding the issue.” Relators are correct that such interested persons are entitled “to process for witness and evidence, and to be heard on the opposition.” Id. But, based on the record before us, they did not file any “written opposition” to the appointment until they filed their motion to reconsider three days after the appointment had already been decided. The trial court therefore did not abuse its discretion by appointing the temporary administrator without first conducting a hearing pursuant to Section 55.001 because there was no requirement for the trial court to hold a hearing under that statute.

Id. The court, however, agreed that the trial court abused its discretion by appointing the temporary administrator without bond:

The Estates Code expressly requires that the order appointing a temporary administrator “set the amount of bond to be given by the appointee.” Moreover, the Estates Code requires that a party must enter into a bond unless they meet one of a limited number of exceptions: (1) a will directs that no bond be required; (2) all the relevant parties consent to not requiring bond; or (3) the appointee is a corporate fiduciary. And other statutory provisions require a hearing and evidence before “setting the amount of a bond.” Based on the record before us, there is no evidence that the temporary administrator met any of the exceptions to the bonding requirement, nor is there any indication that the trial court undertook any evidentiary hearing regarding the bond amount. Accordingly, the trial court abused its discretion by failing to follow the statutory requirements for setting bonds as part of a temporary administrator appointment.

Id.

© 2022 Winstead PC.
For more articles about civil procedures in litigation, visit the NLR Civil Procedure section.

Counsel Fee Award When Contesting A Will

In general, the party tasked with defending a decedent’s Will during a Will contest, which is typically the executor, is entitled to the reimbursement of counsel fees that they incur in defending the Will on behalf of the Estate. At times, however, a party who has filed an action to contest a Last Will and Testament may also be entitled to an award of counsel fees provided there was a reasonable and legitimate basis to contest the decedent’s Last Will and Testament. In a recent appellate division case, the court affirmed an award of counsel fees to the contestant of a decedent’s Will for these very reasons.

In this matter, the defendant executor had been awarded counsel fees by the court, as the defendant was responsible for defending the decedent’s Last Will and Testament against the challenges levied by the plaintiff. In addition, the trial court also awarded counsel fees to the plaintiff, as it found that plaintiff’s challenge to the decedent’s Will was made in good faith and was reasonable. Moreover, the court found that plaintiff’s fees for which it sought reimbursement were fair and reasonable. In response, the defendant argued that the award of counsel fees was contrary to the applicable New Jersey court rules, and therefore, objected to the award. The appellate division reviewed the applicable rule of professional conduct, RPC 1.5(a), and concluded that the plaintiff had reasonable cause to contest the validity of the decedent’s Will, and moreover, that the fees the plaintiff sought were reasonable. As such, the appellate division concluded that the trial court correctly awarded counsel fees to the contestant of the decedent’s Will.

This appellate division decision reaffirmed a well-accepted standard as to an award of counsel fees in the context of probate litigation. When you are either taxed with defending a Last Will and Testament or intending to contest a Last Will and Testament, this factor should be considered when deciding whether settlement makes sense. Since there is no guarantee to either side that the counsel fees will be awarded, it is an issue that should be considered in the context of any settlement discussions before trial.

COPYRIGHT © 2021, STARK & STARK
Article by Paul W. Norris with Stark & Stark.
For more articles on estates and trusts, visit the NLR Family, Estates & Trusts section.

Are iWills The Way of the Future?

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Smartphones sure make lives a lot easier (and, arguably, busier). With a few taps of a screen, individuals can do everything from checking the weather to buying stock to engaging in FaceTime across the world. One individual in Australia recently came up with another innovative use for his smartphone. He used it to prepare his Last Will and Testament shortly before taking his own life.

Karter Yu typed his Will on the Notes application installed on his iPhone, titling the document his “Last Will and Testament.” When challenged, the Supreme Court of Queensland, Australia declared the electronic document to be in fact the Will of Mr. Yu, the decedent. Consequently, the document was admitted to probate. The court specifically noted that the document contained the decedent’s signature and was automatically time and date stamped by the phone.

While the Australian case presents a unique example of how technology is transforming the world of estate planning, it is not recommended that individuals use the same “do-it-yourself” digital approach. First, electronic communications can easily be lost or outdated as technology rapidly advances. Such communications may also fail to meet the traditional requirements of testamentary formalities (which vary from one jurisdiction to another) and may raise red flags about the document’s validity or authenticity. For instance, how can a court be sure that the true author was the decedent and not someone simply using his iPhone? Was the document composed under duress? Was it meant to invalidate a previous Will? Under the current statutes and laws of Kentucky, such “writing” would not qualify as a person’s Living Will and Testament.

However, as we move further into the digital age, courts will likely be required to re-examine what type of instrument may qualify as a Will. For now, though, estate planning is best done on paper with the aid of an estate planning attorney. Instead of trying to use your iPhone to write a Will, use it to call an estate planning attorney who can work with you to ensure your estate planning needs are met in accordance with your wishes and within the applicable law.

© 2014 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.
ARTICLE BY

Terri R. Stallard
OF
McBrayer, McGinnis, Leslie and Kirkland, PLLC