law-probate | independent executor | trustee | independent administration | letters testamentary |
trustee removal suits | undue influence in making or changing a will |
RECENT TEXAS SUPREME COURT DECISIONS: PROBATE MATTERS
Holmes v. Beatty, No. 07-0784 (Tex. Jun. 26, 2009)(Jefferson)(probate law, right to survivorship accounts,
community property survivorship agreement)
HARRY HOLMES, II, INDEPENDENT EXECUTOR OF THE ESTATE OF THOMAS J. HOLMES, SR., DECEASED
AND AS TRUSTEE OF ANY TRUST NAMED AS A LEGATEE IN THE WILL OF THOMAS J. HOLMES, SR.,
DECEASED v. DOUGLAS G. BEATTY, INDEPENDENT EXECUTOR OF THE ESTATE OF KATHRYN V. HOLMES,
DECEASED; from Harris County; 14th district (14-03-00663-CV, 233 SW3d 475, 08-14-07) | Electronic briefs in
Holmes v. Beatty No. 07-0784 (Tex. 2009)
consolidated with
Holmes v. Beatty (htm), No. 07-0785 (Tex. Jun. 26, 2009)(Jefferson)(nontestamentary transfer of assets between
spouses, right to survivorship accounts)
HARRY HOLMES, II, INDEPENDENT EXECUTOR OF THE ESTATE OF THOMAS J. HOLMES, SR., DECEASED
AND AS TRUSTEE OF ANY TRUST NAMED AS A LEGATEE IN THE WILL OF THOMAS J. HOLMES, SR.,
DECEASED v. DOUGLAS G. BEATTY, INDEPENDENT EXECUTOR OF THE ESTATE OF KATHRYN V. HOLMES,
DECEASED; from Harris County; 14th district (14-05-00474-CV, 233 SW3d 494, 08-14-07)
2 petitions
The Court reverses and renders in part and affirms in part the court of appeals' judgment.
Chief Justice Jefferson delivered the opinion of the Court. [pdf]
Smith v. O'Donnell, No. 07-0697 (Tex. Jun. 26, 2009)(O'Neill)(PROBATE LAW: legal malpractice suit by executor
of estate against decedent's attorney, non-estate planning context, gross negligence, malice standard)
PAUL H. SMITH, ET AL. v. THOMAS O'DONNELL, EXECUTOR OF THE ESTATE OF CORWIN DENNEY; from
Bexar County; 4th district (04-04-00108-CV, 234 SW3d 135, 07-25-07) 2 petitions
The Court affirms the court of appeals' judgment.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Brister, Justice Medina,
and Justice Johnson joined. [pdf - 11 pgs]
Justice Willett delivered a dissenting opinion, in which Justice Wainwright joined. [pdf]
(Justice Hecht and Justice Green not sitting)
Kappus v. Kappus, No. 08-0136 (Tex. May 1, 2009)(Willett) (probate case, mere conflict of interest of
independent executor not enough to warrant removal)
JOHN KAPPUS v. SANDRA L. KAPPUS; from Anderson County; 12th district (12-06-00233-CV, 242 SW3d 182, 11-
30-07)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court
Ditta v. Conte, No. 07-1026 (Tex. Jun. 5, 2009) (Willett) (in action for removal of trustee, statute of limitations does
not apply; trustee may be removed for cause at any time, based on complaint of acts or omissions that would
otherwise be time-barred, but suit for breach of fiduciary duty seeking money damages is subject to four-year SoL)
LOUIS M. DITTA, GUARDIAN OF THE ESTATE OF DORIS L. CONTE, AN INCAPACITATED PERSON v. SUSAN C.
CONTE AND JOSEPH P. CONTE, JR.; from Harris County; 1st district (01-05-00603-CV, ___ SW3d ___, 08-31-07)
motion to strike petitioner's appendix to brief on the merits dismissed as moot
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Willett delivered the opinion of the Court.
07-1026 LOUIS M. DITTA, GUARDIAN OF THE ESTATE OF DORIS L. CONTE, AN INCAPACITATED PERSON v. SUSAN C. CONTE AND JOSEPH P.
CONTE, JR.; from Harris County; 1st district (01‑05‑00603‑CV, ___ SW3d ___, 08-31-07)(probate court case, authority to remove trustee)
A.G. Edwards & Sons, Inc. v. Beyer, No. 05-0580, 235 SW3d 704 (Tex. Sep. 28, 2007)(Wainwright)
(financial services, breach of contract, joint account with right of survivorship, Texas Probate Code,
attorney's fees)
A.G. EDWARDS & SONS, INC. v. MARIA ALICIA BEYER; from El Paso County; 8th district
(08-03-00495-CV, 170 S.W.3d 684, 06/30/05)
PETITIONS IN PROBATE LAW APPEALS DENIED BY TEX. 2008
09‑0656
GEORGE DIEHL DOLAN v. ZELIE M. DOLAN; from Harris County;
1st district (01‑07‑00694‑CV, ___ SW3d ___, 06‑18‑09, pet. denied Oct 2009)
Dolan v. Dolan (Tex.App.- Houston [1st Dist.] Jun. 18, 2009. pet. denied Oct 2009)(Op. By Higley) (probate law,
trustee, breach of fiduciary duty, preservation of error)
09‑0687
BOBBIE WASHINGTON v. ANNIE MARIE GARRETT SMITH, ET AL.; from Harrison County; 6th district
(06‑08‑00121‑CV, 289 SW3d 362, 06‑30‑09, pet denied Oct 2009) (probate litigation, removal of administratrix,
dependent, independent administration of estate, attorneys fees, appellate sanctions denied)
09-0210
KAUFMAN COUNTY, TEXAS, WAYNE GENT, JIM DELLER, GERALD ROWDEN, KENNETH SCHOEN, KEN
LEONARD AND HAL D. JONES v. JO ANN E. COMBS; from Kaufman County; 5th district (05-07-01152-CV, 274
SW3d 922, 12-30-08, pet. denied June 2009)(probate court jurisdiction, recusal of judge, guardianship)
(guardianship proceeding, subject matter jurisdiction of probate court, void order contention overruled) ("Having
jurisdiction, Judge Ashworth had the authority to determine the Guardian's fee recovery and his 2002 order is a
valid, enforceable order. Tex. Gov't Code Ann. § 21.001(a) (Vernon 2004). Therefore, trial court erred when it
held it lacked jurisdiction regarding the Guardian's claims in the present case.")
09‑0044
MARK RILEY, INDIVIDUALLY AND AS TRUSTEE v. ROBERT ALPERT, ROMAN ALPERT, AND RENEE PICAZO,
GUARDIAN OF THE ESTATE OF DANIEL ALPERT, A MINOR; from Harris County; 1st district (01-06-00605-CV,
274 SW3d 277, 10‑23‑08)(probate, trust management dispute)
08-0963
IN THE ESTATE OF BOBBY WAYNE DILLARD, DECEASED; from Rusk County; 6th district
(06-08-00015-CV, ___ SW3d ___, 09-30-08) as amended (will contest, holographic will)
08-0974
IN RE THE ESTATE OF SARAH E. BOREN, DECEASED; from Lamar County; 6th district
(06-07-00104-CV, 268 SW3d 841, 10-03-08)(probate law dispute, guardianship, power of attorney)
The previous ruling in this case as decided on September 4, 2008, (1)1 is withdrawn and this opinion is rendered
in its stead. (probated dispute)
Sarah E. Boren's last will and testament named her nephew, Richard Finley, as her first choice to serve as the
independent executor of her estate, with his mother, Jeanetta Finley (Sarah's sister-in-law), as his alternative or
successor. The will also devised her estate in equal shares to Richard and Jeanetta as her sole beneficiaries if
her husband, Charles Boren, did not survive her. The trial court entered an order refusing Richard's application
for probate and his application for appointment as independent executor. The trial court also impliedly ruled that
Richard and Jeanetta had effectively disclaimed any claim to inheritance under Sarah by signing documents which
complied with Section 37A of the Texas Probate Code.
Richard had served as attorney-in-fact for Sarah and her husband, Charles, neither of whom had children.
However, Charles was determined incapacitated and a guardian of his estate was appointed; the issuance of the
letters of guardianship rendered the durable power of attorney given by Charles no longer effective. (2)
08-0558
DAVID WAYNE SMITH AND DANA L. MAYOR v. MARY LINDA MCCALL; from Harris County; 14th district
(14-07-00032-CV, 252 SW3d 663, 04-03-08)(divorce and life insurance, probate court)
08-0466
SHARON SWANK BACKHUS, BENJAMIN F. SWANK, III, SHANNON LEA WERCHAN PICKERING, SWANK TURNER
BACKHUS, BENJAMIN FONTAINE SWANK, IV, CHRISTIAN HARRIS SWANK AND SUZANNE SWANK PORTER v.
HAVEN LYNN WERCHAN WISNOSKI AND SHANE ALAN WERCHAN; from Grimes County; 1st district (01-07-
00041-CV, ___ SW3d ___, 03-13-08, pet denied)
Backhus v. Werchan Wisnoski (Tex.App. - Houston [1st Dist.] Mar. 13, 2008, pet. denied Aug 2008)(Nuchia)
(probate law, construction of will, real estate law, partition of land)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
This is an appeal from a declaratory judgment action. Appellants sought a judicial declaration that the partition of
certain lands inherited by life tenants, Sharon Swank Bacchus and Benjamin F. Swank, III ("B. F."), was valid and
binding on all parties.
08-0138
ESTATE OF JOHN A. TEINERT DECEASED, LAURANCE KRIEGEL, DESCENDENT, HEIR TO THE ESTATE; from
Coryell County; 10th district (10-07-00297-CV, 251 SW3d 66, 01-09-08, pet. denied Aug 1, 2008)
as redrafted; petitioner's motion for partial summary judgment denied (probate matter)(Because the trial court had
no jurisdiction to take any further action with regard to Teinert’s Estate, this Court has jurisdiction only to dismiss
the appeal.)
08-0138
ESTATE OF JOHN A. TEINERT DECEASED, LAURANCE KRIEGEL, DESCENDENT, HEIR TO THE ESTATE; from
Coryell County; 10th district (10-07-00297-CV, 251 SW3d 66, 01-09-08, pet. denied Aug 1, 2008)
as redrafted; petitioner's motion for partial summary judgment denied (probate matter)(Because the trial court had
no jurisdiction to take any further action with regard to Teinert’s Estate, this Court has jurisdiction only to dismiss
the appeal.)
08-0463
KAY FRANCES WALKER, JUANITA FAYE ANDERSON-COPIER, MONA WALKER HURST, MARCIA WALKER
HURST, MARTHA DIANE WALKER, DWAYNE WALKER, JOHN WALKER AND SHARON WALKER ATWELL v.
NORMA LEA BEASLEY; from Dallas County; 5th district (05-07-00976-CV, 250 SW3d 212, 04-17-08, pet. denied
2008) (probate, amended inventory)
08-0128
IN THE MATTER OF THE ESTATE OF ROSEZELLER WILLICH, DECEASED; from Henderson County; 12th district
(12-06-00409-CV, ___ SW3d ___, 12-21-07, pet. denied 2008) motion to amend dismissed as moot
(probate, undue influence and Rosezellar lacked testamentary intent or capacity)
Appellant Robert Lewis Willich appeals an order admitting the will of Rosezellar Willich to probate as a muniment
of title. On appeal, Willich presents seven issues. We modify the order and affirm as modified.
08-0212
THE ESTATE OF STEPHEN ELLIS ALEXANDER; from McLennan County; 10th district (10-06-00360-CV, 250
SW3d 461, 01-30-08, pet. denied 2008)(probate, will or intestate, motion for new trial)
This appeal involves the question of whether the decedent Stephen Ellis Alexander made a nuncupative will
before his death or died intestate. The trial court determined that Stephen died intestate. Appellant Ben C.
Lambeth contends in four issues that: (1) the court abused its discretion by denying his oral request for a
continuance; (2) the court erred by granting a summary judgment motion filed by Appellees Cheryl and Deborah
Alexander, Stephen’s sisters, because genuine issues of material fact remain on each element of Ben’s claim that
Stephen made a nuncupative will; (3) the court abused its discretion by denying Ben’s motion for new trial
premised on the denial of his continuance request; and (4) the court abused its discretion by denying his motion
for new trial premised on the summary judgment ruling. We will affirm.
08-0350
STEPHANIE DUKES, ET AL. v. PHILIP JOHNSON/ALAN RITCHIE ARCHITECTS, P.C., ET AL.; from Tarrant
County; 2nd district (02-07-00095-CV, ___ SW3d ___, 03-27-08, pet. denied Jun 2008)(probate, issue of duty,
voluntary undertaking, professional code of ethics, summary judgment, premises liability)
08-0350
STEPHANIE DUKES, ET AL. v. PHILIP JOHNSON/ALAN RITCHIE ARCHITECTS, P.C., ET AL.; from Tarrant
County; 2nd district (02-07-00095-CV, ___ SW3d ___, 03-27-08, pet. denied Jun 2008)(probate, issue of duty,
voluntary undertaking, professional code of ethics, summary judgment, premises liability)
08-0087
ESTATE OF HAZEL DELORES HATCHER, DECEASED; from Collin County; 5th district
(05-06-01109-CV, ___ SW3d ___, 12-11-07, pet. denied June 2008)(probate mattter, will contest)
In this will contest case, Beverly Hatcher Christensen appeals the trial court's order admitting the will of her sister,
Hazel Delores Hatcher, to probate subject to the family settlement agreement. Because we conclude Christensen
has voluntarily accepted benefits of the order she attacks on appeal, we dismiss the appeal as moot.
08-0207
JUNELLA ROSIE HEMPEL CARROLL v. CLAUDE A. MERTZ AND CHARLIE H. RIPPER, INDEPENDENT
EXECUTORS OF THE ESTATE OF EWALD HEMPEL, DECEASED; from Fayette County; 3rd district (03-05-
00540-CV, ___ S.W.3d ___, 11-01-07, pet. denied 2008) (probate, will contest)
This is an appeal from a summary judgment in a will contest. Appellees, Claude A. Mertz and Charlie H. Ripper,
are the independent co-executors of the estate of Ewald Hempel under Hempel's 1990 will (the Estate). Persons
claiming to be beneficiaries under an earlier joint and reciprocal will executed by Mr. Hempel and his wife in 1960
filed suit to set aside the probate of Hempel's 1990 will and subsequent codicils and to obtain a declaratory
judgment affirming their inheritance rights under the1960 will and a 1969 codicil. Appellant, Junella Rosie Hempel
Carroll, intervened, alleging that she was Hempel's sole child and heir and seeking to void all of his wills and
codicils for insane delusion or, alternatively, to inherit claimed lapsed gifts under the 1960 will and 1969 codicil.
The district court granted the Estate's motion for traditional and no-evidence summary judgment and ordered that
Carroll take nothing on her claims. For the reasons explained below, we affirm the judgment of the district court.
08-0136
JOHN KAPPUS v. SANDRA L. KAPPUS; from Anderson County; 12th district
(12-06-00233-CV, 242 SW3d 182, 11-30-07, pet. denied April 2008)(probate dispute, independent executor of
estate and trustee of testamentary trust)
Sandra Kappus, ex-wife of the deceased, James W. Kappus, complains of certain trial court rulings entered in the
probate of James’s estate. In four issues, Sandra claims the trial court erred in its division of the estate’s primary
asset and by failing to remove John Kappus as independent executor of the estate and as trustee of a
testamentary trust created by James’s will. We affirm in part and reverse and render in part.
08-0145
CURTIS S. COLE v. ERNESTINE HOGAN; from Harris County; 1st district
(01-06-00477-CV, ___ SW3d ___, 12-20-07, pet. denied April 2008) (probate case, lost will)
08-0078
DAVID DIAZ MONTEZ v. MARYLINDA RIOS, INDIVIDUALLY AND AS TRUSTEE OF THE KANDO CHILDREN'S
TRUST AND KANDO CHILDREN'S TRUST NO. 2, AND LAURIE PATRICIA MONTEZ, INDIVIDUALLY AS TRUSTEE
OF THE KANDO CHILDREN'S TRUST; from Bexar County; 4th district
(04-07-00089-CV, ___ SW3d ___, 12-12-07, pet. denied April 2008)(probate matter, wills and trusts, res judicata
doctrine, due process)
David Diaz Montez appeals the probate court's order declaring that his claims are barred by res judicata and that
he forfeited his rights under certain wills and trusts. Montez asserts three issues on appeal contending: (1) his
claims are not barred by res judicata; (2) he did not forfeit his rights under the wills and trusts; and (3) any
forfeiture of his rights under the wills and trusts violated his due process. We affirm the trial court's judgment.
08-0176
RODGER DALE CASTLEBERRY v. ELAINE CASTLEBERRY BIGBEE, INDIVIDUALLY, AND AS INDEPENDENT
EXECUTRIX OF MAY GLEN CASTLEBERRY, DECEASED, AND TRUSTEE OF THE CASTLEBERRY FAMILY
IRREVOCABLE LIFE INSURANCE TRUST, THE CASTLEBERRY MARITAL TRUSTS, AND THE CASTLEBERRY
BY-PASS TRUST; from Comal County; 13th district (13-06-00551-CV, ___ S.W.3d ___, 01-17-08,
pet. denied April 2008) (probate law)
This is a probate matter concerning the compensation of an executrix of the estate of Don and May Glen
Castleberry (the "Estate") and a trustee of the Castleberry trusts. By three issues, appellant, Elaine Castleberry
Bigbee, asserts that the trial court's judgment should be reversed because: (1) the district court erred in
construing the intent of May Glen's will, and Bigbee is entitled to statutory compensation as a matter of law; (2)
May Glen's will is ambiguous if the district court's interpretation of the will is adopted; and (3) the parties' Rule 11
Agreement and the district court's September 28, 2005 order do not preclude Bigbee's right to compensation. We
reverse and remand for proceedings consistent with this opinion
07-0965
PENNY TRESA MCMENNAMY v. CURTIS MCMENNAMY; from Hunt County; 5th district
(05-06-01566-CV, ___ SW3d ___, 10-10-07, pet. denied Feb. 2008)(collateral attack on probate court judgment)
Penny Tresa McMennamy appeals the trial court's order dismissing her lawsuit against Curtis McMennamy. In four
issues, appellant contends the trial court erred by granting appellee's motion for new trial and dismissing her
lawsuit for lack of subject matter jurisdiction. We affirm the trial court's dismissal order.
Appellant's allegations in her petition show she is attempting to collaterally attack the county court's probate
judgment by seeking a declaration that the will was obtained by fraud, the title to the property did not vest in
appellee through the will because it was no longer part of Jones's estate at the time of her death, and by seeking
construction of the will. Thus, appellant is challenging matters relating to the probate and administration of
Jones's estate. Consequently, under the facts and circumstances of this case, we conclude the district court
properly determined it did not have jurisdiction to consider appellant's allegations. We overrule appellant's third
issue. Having determined the trial court lacked subject matter jurisdiction over this case, we need not consider
appellant's remaining issues.
07-0965 PENNY TRESA MCMENNAMY v. CURTIS MCMENNAMY; from Hunt County; 5th district
(05-06-01566-CV, ___ SW3d ___, 10-10-07, pet. denied Feb. 2008)(collateral attack on probate court judgment)
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