General Practice, Solo and Small Firm Section of the State Bar of Texas


FALL 2018   



Archer v. Anderson, 2018 Tex., W.L. 3090810; LEXIS 1611 (Tex. 2018)


No Tort for Intentional Interference with Inheritance:  The Texas Supreme Court recently addressed this issue in Kinsel v. Lindsey, 526 S.W.3d 411 (Tex. 2017), declining then to recognize a new cause of action for tortious interference with inheritance (discussed in the Fall 2017 issue).  However, many argued the Court left open the possibility of recognizing the tort under the right circumstances.  The last year has shown a continued split in the courts of appeals about whether the cause of action does in fact exist. Held:  This time, facing a new set of circumstances, the Court decided to resolve the issue and conclusively determined there is no cause of action for tortious interference with inheritance.  The Court recognized the important balance in probate law between honoring a testator’s actions and addressing scenarios where such actions were wrongfully taken.  The Court ultimately held a tort of intentional interference with inheritance is not needed because existing probate and other law provide adequate remedies. However, the strong dissent points out the Court has not seen enough different sets of facts to conclusively determine the existence of an adequate remedy in all scenarios.  The dissent also highlights the growing issue of diminished capacity and the need to prevent exploitation in the elderly population. 


In the Guardianship of A.E., 2018 Tex. App., W.L. 2976424; LEXIS 4353 (Tex. App.—Fort Worth, 2018, no pet.)


Guardianships for Intellectual Disabled Adults:  The probate court denied the parents’ application to be appointed guardian for their intellectually disabled eighteen year old daughter.  The probate court found the parents had not shown by clear and convincing evidence that supports and services and alternatives to guardianship were not feasible.  It was significant to the trial court that the parents had not encountered issues in obtaining medical treatment for their daughter (A.E.) in the two weeks between her eighteenth birthday and the hearing, and that A.E. was agreeable to her parents assisting with her medical decisions (Section 1103.001 of the Texas Estates Code allows a person to file an application for a minor, who because of incapacity, will require a guardianship after the proposed ward is no longer a minor). Held:  On appeal, the Court held the evidence demonstrated by clear and convincing evidence that A.E. was totally without capacity and that no alternatives to guardianship or supports and services were feasible to avoid the guardianship.  For example, A.E. lacked capacity to make personal decisions or to sign a power of attorney or supported decision making agreement that would avoid the need for a guardianship.  Further, without the appointment of a guardian, A.E. was susceptible to abuse and exploitation and might be denied necessary medical care.  It is important to note the focus in recent years has been recognizing appropriate alternatives to avoid guardianship.  This opinion lays out a clear roadmap and explains why guardianship is necessary, and may be the only option, for many intellectually disabled adults. 



In re Rittenmeyer, 2018 Tex. App., W.L. 1870744; LEXIS 2812 (Tex. App.—Dallas 2018, no pet)


Exception to Attorney-Client Privilege in Will and Trust Disputes:  The attorney-client privilege is well settled law in Texas.  See Tex. R. Evid. 503.  However, there are certain exceptions, and one in particular often applies in will and trust disputes.  In Rittenmeyer, the Executor, who happened to be the Decedent’s mother, sought declarations from the Court that the Decedent’s unpaid bonuses were his separate property pursuant to a pre-nuptial agreement.  The Decedent’s surviving spouse challenged the enforceability of the pre-nuptial agreement.  In discovery, the Executor asserted attorney-client privilege and withheld from production certain drafts of wills, trusts and related attorney-client communications.  The surviving spouse argued the executor interpreted the exception too narrowly, and the trial court granted the surviving spouse’s motion to compel production of the documents.  The relevant exception is that attorney-client communications are not privileged if the communications are relevant to an issue between parties claiming through the same deceased client.  See Tex. R. Evid. 503(d)(2). Held: There is sparse case law interpreting the scope of the exception.  Here, both the trial court and appellate court determined the discovery sought by the surviving spouse was relevant, and both rejected the Executor’s interpretation of the exception.  Thus, the trial court was within its discretion in determining the discovery sought was relevant to the dispute, and the Court denied the Executor’s petition for writ of mandamus.



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