KEEPING CURRENT P R O B AT E CASES ACCEPTANCE OF BENEFITS: Contest barred by acceptance of benefits even if less than amount receivable upon a successful contest. The executor distributed to a child of the testator a mutual fund account specifically bequeathed to the child. The child assumed ownership of the account and five months later sued to set aside the will alleging undue influence by the executor, another child of the testator. The executor moved to dismiss for lack of standing and the trial court agreed because accepting a benefit under the will prevents the beneficiary from attacking the will’s validity. The intermediate appellate court reversed, holding that the child was not estopped because the benefit accepted was worth less than what the child would receive if the suit were successful. On appeal by the executor, the Texas Supreme Court reversed in Estate of Johnson, 64 Tex. Sup. Ct. J. 1160 (Tex. 2021), holding that the application of the acceptance of benefits doctrine does not depend on the value of the interest accepted under the will. EXECUTOR POWERS: Statutory powers authorized the executor to convey property devised to a trust. In Lockhart v. Chisos Minerals, LLC, 621 S.W.3d 89 (Tex. App. 2021), a Texas intermediate appellate court held that the terms of a will giving the executor all the statutory powers given to a trustee authorized the executor to convey the real property of the estate that passes under the residuary devise to an existing trust for consideration. Keeping Current—Probate Editor: Prof. Gerry W. Beyer, Texas Tech University School of Law, Lubbock, TX 79409; gwb@ ProfessorBeyer.com. Contributors: Claire G. Hargrove, Paula Moore, Prof. William P. LaPiana, and Jake W. Villanueva.
to “any beneficiary” also applies to the settlor who is the sole life beneficiary. Keeping Current—Probate offers a look at selected recent cases, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.
Therefore, the executor, who was also the trustee of the trust, could not challenge the validity of the deed on the grounds that the executor had not signed the deed in a trustee capacity. LAPSE: Devise to charity does not lapse so long as the charity is in existence when the testator died. The testator’s will made a devise to a nursing home operated as a charity under IRC § 501(c)(3). At the time of the testator’s death, the nursing home was a party to an agreement with a for-profit entity to transfer its operations and licenses to the entity once a new facility was completed. After filing estate tax returns identifying the devise as a charitable gift, the executor petitioned for construction of the will. The trial court agreed with the executor that the devise had lapsed because the nursing home was no longer operating as a charity at the time of the testator’s death. On appeal, the Supreme Court of Nebraska in In re Estate of Akerson, 960 N.W.2d 719 (Neb. 2021), reversed because the nursing home was operating as a charity on the date of the decedent’s death and thus the agreement was irrelevant. NO-CONTEST CLAUSE: No-contest clause applies to a settlor who is a trustee. In its opinion in McMurtrie v. McMurtrie, No. 200404, 2021 WL 1569396 (Va. Apr. 22, 2021), the Supreme Court of Virginia held that a no-contest clause in a trust that applies
TORTIOUS INTERFERENCE: A plaintiff must prove the defendant’s knowledge of the plaintiff ’s expectations. The defendants in a suit alleging tortious interference with inheritance won their summary judgment motion because the trial court agreed that the plaintiffs had not presented evidence to create a sufficient dispute of a material fact, that is, whether the defendants had knowledge of any inheritance the plaintiffs expected. The plaintiffs appealed and the Supreme Court of Iowa affirmed in Buboltz v. Birusingh, 962 N.W. 2d 747 (Iowa 2021), holding that an element of the cause of action is the defendant’s “purpose to interfere with the plaintiff ’s expectancy,” citing Restatement (Third), Torts: Liability for Economic Harm, § 19, and stating that purpose to interfere requires knowledge of the expectancy. TORTIOUS INTERFERENCE: Denial of an undue influence claim prevents bringing action based on tortious interference. The decedent’s surviving spouse challenged the admission to probate of the decedent’s will alleging undue influence by the decedent’s child from a prior marriage and the decedent’s attorney. After an evidentiary hearing, the probate court dismissed the objections, finding there was insufficient evidence of undue influence, and admitted the will to probate. The surviving spouse then brought an action against the child and the attorney alleging tortious interference with inheritance and with contractual relations regarding revision of a pre-nuptial agreement. The trial court granted the defendants’ motion for summary judgment. On appeal, the Connecticut intermediate appellate court in Solon v. Slater, 253 A. 3d 503 (Conn. App. 2021), affirmed, agreeing
Published in Probate & Property, Volume 35, No 6 © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
28
November/December 2021
