Kittie started dating her daughter’s boyfriend Butch when he was 17 years old. They apparently dated for over twenty years, during which time Kittie purchased him a house to “use.” Butch later moved into the house with his girlfriend Peaches. Butch and Peaches had a daughter Maggie. Butch was frequently physically abusive and often threatened both Peaches and Kittie while brandishing his .45 revolver. One night Peaches had enough. She seized Butch’s revolver after he went to bed, shot him in the back and killed him. The grand jury no billed Peaches. Their daughter was Butch’s only heir. Butch died without a will. Do Peaches’ actions affect her ability to inherit from Butch’s estate? Can Peaches become the legal representative of Butch’s estate for herself and their minor daughter Maggie? Can Kittie get her house back?

Yes. Peaches will have difficulty inheriting from Butch’s estate for several reasons. Peaches would first have to prove in court that Butch was her common law husband; otherwise,  she is not an heir. Even if she could prove common law marriage, what about the Slayer Rule?

The Slayer Rule

The only specific Texas statute keeping a murderer from benefitting from his deceased victim is in the insurance code. A beneficiary of a life insurance policy forfeits the beneficiary’s interest in the policy if the beneficiary is a principal or an accomplice in willfully bringing about the death of the insured. But what about estate assets other than insurance? There still is no clear answer by case or statute. Section 21 of the Texas Constitution’s Bill of Rights provides that “no conviction shall work… forfeiture of estate….” So, early cases concluded that a willful murderer who was an heir of his victim, did not forfeit his right but would inherit his part of the property of the deceased. Troubled by that result, it appears, later decisions hold that equity compels a murderer to surrender the profits of his crime and thus prevent his unjust enrichment – by imposing a constructive trust on the murderer’s portion of the inheritance in favor of the heirs other than the murderer. One judge opined, “[c]ertainly the statutes should not be used as a vehicle to acquire property through parenticide.”

Maggie as Heir

Butch died without a will. He had only one child – a minor. Without having to struggle through proving common law marriage, and perhaps having to avoid the Slayer rule, Peaches stands to control the benefits of Butch’s estate by acting as administrator to insure that their minor child Maggie inherits everything from Butch, right? Peaches claimed that, because she was the next of kin of their minor child – the intestate’s sole heir – she had priority to be the estate administrator over anyone else. Most judges would apply the statutory preference to appoint Peaches under these circumstances, assuming the appointment of Peaches “would be in the best interest of the Estate.” However, if any of Butch’s next of kin had objected, they would have been the administrator because a non-marital partner lacks priority over an intestate’s next of kin to be appointed as the administrator of an intestate’s estate. No one objected. Peaches was administrator.

What about Kittie? Can she get her house back?

The Slayer rule utilizes underlying concepts of Texas constructive trust law – a tool in equity to prevent a party from unjustly enriching themselves. Kittie also had extenuating facts of undue duress. Without detailing the circumstances, imposing a constructive trust is a tool developed in equity to assist judges to temporarily secure property that is the source of someone’s unjust enrichment, pending transfer of the property to its rightful owner. Kittie argued that she was the rightful owner. In mediation, the attorneys agreed, and she got her house back.

Balancing the Scales – for all members of the Family

Kittie had become quite attached to Maggie and did not want to alienate her. While she wanted to provide, as she could, for Maggie, Kittie did not have the same commitment to Peaches. Mediation was a good mechanism to resolve the disagreements among those claiming against Butch’s estate.

Tilting the Scales Blog

This is another in a series of Tilting the Scales articles on “real life” business and family issues in the lives of families and friends seeking a fair solution to heated disagreements. Kittie’s issues were litigated and resolved by Cleve Clinton and other Gray Reed lawyers.

No Legal Advice

This blog is informational only. The names have been changed. The facts and legal issues are sometimes changed to make a point. Seek advice worthy of your trust from someone with the necessary education and experience.

Mary Goodblood grew up believing that she was Cash Goodblood’s only daughter. Twenty-five years after he died, her dad’s brother Uncle Trusty sold the Goodblood family business for a tidy sum. After report of the lucrative sale was plastered on the front page of the local newspaper, Mary received a Facebook message from a stranger Désirée saying “Hi, I think your Dad is also my Dad. Do you want to exchange DNA?” In talking to her Uncle Trusty Mary learned that Désirée’s mom, Candy Onenight, had a brief relationship with Cash long before Cash and Mary’s mom got married. When Uncle Trusty, the trustee of Cash’s trust that specifically names Mary and nowhere mentions Désirée, is presented with Désirée’s claim for a share of Cash’s estate, what should Uncle Trusty do?

Proceed cautiously. While Désirée, too, may be a beneficiary to whom Trusty may later be determined to owe a fiduciary duty, Désirée has some daunting challenges. First, she must prove that she is Cash’s biological daughter. Second, she must prove that the language of Cash’s estate documents – especially his trust – benefits any biological heirs besides Mary. Until Désirée proves her claims to be correct, what must Uncle Trusty do as Mary’s fiduciary?

Uncle Trusty’s Trustee Duties Owed to Mary

Generally, a fiduciary has the duty to do what is reasonable under the circumstances to defend actions by third parties against the trust estate. Mary’s rights to Cash’s trust are unquestioned.  Desirée’s rights are, at best, tentative – claims by a third party against the trust estate which require a judicial finding or the parties’ agreement.

With respect to paternity – DNA testing – what is reasonable under the circumstances for Uncle Trusty to do? Should he voluntarily test himself and other Goodblood family members? Is Desirée’s claim, alone, sufficient to put him on notice to give her some credibility? Does Uncle Trusty owe Desirée a fiduciary duty to proactively assist in a court’s determination of her claim? Is that solely her responsibility? Recognizing that a trustee has a duty to act for all the beneficiaries, not for only some of them without expense to the others, if Trusty acts is he being impartial?

With respect to Cash’s Trust assets – values and funds distribution – how can Uncle Trusty satisfy his fiduciary duty of impartiality in managing, supervising and safeguarding the trust assets of his brother Cash? For example, Trusty owes Mary a duty to make full and accurate disclosure of all material facts necessary for her to protect her interest, including all financial information affecting Cash’s Trust. Before Cash is determined to be Desirée’s father establishing her interest in Cash’s Trust, does Trusty owe Desirée a duty to fully and accurately disclose to her the Trust’s finances and assets? Is Desirée yet a beneficiary whose interests Uncle Trusty is duty-bound to protect? If not, is Trustee being impartial in disclosing to Desirée confidential information about Cash’s Trust?

Following up a bit on Trusty’s duties, they may also include getting a judicial determination whether the language of Cash’s trust is written to include illegitimate descendants. For more on this topic, check out “Illegitimate Heirs – Trust Language: “Hi, I Think Your Dad is also My Dad” – Part 2.”

With respect to distributions from Cash’s Trust – scheduled cash payments – what should Trusty do with undistributed Trust funds? Of all the unanswered questions, this may be the easiest – set aside the share that may later be due to Desirée until final determination of rights and ownership.

Family in Transition

In all candor, the burden placed on Cash’s brother Uncle Trusty was probably a little unfair. He was catapulted into new and uncharted waters. Yet, there were certain tenets of fiduciary duties that continued unchanged. A trustee has a fiduciary duty to protect those to whom he owes a duty – and only them – until the beneficiaries change. In doing so, the best advice to Trusty – in caring for his beneficiary – is to hold back a fair share that may later become due to a claimant. Perhaps the overarching consideration for Trusty is to honor his duty to act impartially in managing the trust assets, considering any differing interests of the beneficiaries – impartially managing the trust assets, and in so doing, impartially fulfilling his duties to the trust beneficiaries. That means not sharing either Cash’s Trust information or funds until a new beneficiary unquestionably has the right to both. For example, doing nothing to assist Desirée’s claim may well include not unduly assisting her by offering to gather and test DNA samples.

Balancing the Scales – for both the Family and the Business in Transition. Careful thought must be given to both the strictly legal answers as the business transitions from one generation to the next, and the emotional / practical answers as the family transitions between generations. Both must be weighed to chart a workable solution for all interested parties.

Tilting the Scales Blog

This is the fourth and final in a series of Tilting the Scales articles on “real life” business and family issues in the lives of the Goodblood family and the claims or an illegitimate heir which were litigated and resolved by Gray Reed lawyers Greg Sampson, Cleve Clinton and Bill Drabble. This Part 4 of “Illegitimate Heirs: Fiduciaries – ‘Hi, I think Your Dad is Also My Dad’” addresses the questions raised by Desirée Onenight that upended the Goodblood family as Desirée navigated her way to the courthouse.

Unanswered Question: Did Desirée wait too long?

Mary’s dad Cash, being her Uncle Trusty’s brother died over twenty-five years ago. How long can Desirée wait before she has waited too long to make a claim? Generally, the statutory deadline to claim it or lose it is four years. Twenty-five years sounds too long. However, today Texas law offers no answer. Generally, Texas statutes and case law have been unchanged in trusts and estates law for hundreds of years. There is presently no statute of limitations on filing such a claim.

No Legal Advice

This blog is informational only. The names have been changed. The facts and legal issues are sometimes changed to make a point. Seek advice worthy of your trust from someone with the necessary education and experience.

Co-author Emily Morris*

Last month Tilting blogged about Peter LoDuca, Steven A. Schwartz and their New York law firm who New York Federal Judge Kevin Castel chastised for submitting non-existent judicial opinions with fake quotes and citations created by the artificial intelligence tool ChatGPT. Worse yet, they continued to stand by the fake opinions after Judge Castel challenged their brief. Though LoDuca and Schwartz claimed they were “unaware of the possibility that [ChatGPT’s] content could be false,” Judge P. Kevin Castel ordered them to appear earlier this month to evaluate whether sanctions were warranted.

Update from the Hearing

During the two hour June 8^th hearing, Judge Castel pressed Schwartz to explain why his brief was filled with fake judicial opinions and legal citations. Remorsefully stating that he “did not comprehend that ChatGPT could fabricate cases,” and that he wished he had conducted more thorough research into the information, Schwartz stated that he assumed the “new site . . . was, like, a super search engine” capable of pulling research that he was somehow unable to access. Judge Castel was not impressed. When asked “[c]an we agree that is legal gibberish?” Schwartz sheepishly agreed and acknowledged he did nothing to confirm the cited cases actually existed.

Though Mr. Schwartz’s attorney argued that no intentional misconduct was committed, one wonders how such an instance of attorney negligence warrants a lesser punishment than other failures of professional legal conduct.

Although concluding that LoDuca and Schwartz acted with subjective bad faith, Judge Castel found that their law firm arranged to conduct mandatory ethical training on technological competence and artificial intelligence programs, and the Court noted and weighed the significant negative publicity generated by their actions, together with their sincerity in describing their embarrassment and remorse. The Court concluded that a penalty of $5,000 paid into the registry of the Court was sufficient.

Déjà Vu in Colorado

LoDuca and Schwartz’s public misfortune may have rescued another attorney from a similar fate. A new Colorado Springs attorney Zachariah Crabill fell prey to fraudulent ChatGPT case citations. Crabill accidentally cited to numerous cases fabricated by—you guessed it—ChatGPT. Luckily, Crabill realized his mistake on the day of the hearing, though the judge threatened to file a complaint against him. Crabill apologized for the mishap in a May affidavit, stating that “[b]ased on the accuracy of prior validated responses, and the apparent accuracy of the case law citations, it never even dawned on [him] that this technology could be deceptive.”

Tilting the Scales in Your Favor

While AI in the workforce may have a bright future, current users beware! Regardless of ever-changing technology, a lawyer owes a duty of candor and accountability to the tribunal. Legal professionals are duty bound to ensure that they make no material misrepresentations of fact or law. An inability to locate an AI-generated case on Lexis, Westlaw, Fastcase or even in a physical copy of the Federal Reporter should raise plenty of red flags, and the intentional choice to proceed with that knowledge falls far short of a lawyer’s duty to the court.

*Emily is a rising 2-L at the University of Texas Law School and a Gray Reed summer associate.

Co-author Derek Younkers *

For the last 15 years, our Tilting the Scales article outlining the “Top 10 Texas Fireworks Laws” has been an explosive hit every July 4 and New Year’s. This year, especially with the excessive heat we’re experiencing, you may be wondering if your upcoming weekend fireworks extravaganza will be dampened by a county burn ban?

Probably not. County judges and their commissioners courts are empowered to issue burn bans when faced with droughts, like those of the past several years. Even though it may seem like fireworks would fall under a county’s burn ban, the state burn ban statute does not mention fireworks. The only way counties can ban fireworks is by declaring a local disaster, which requires authorization from the governor. In unincorporated areas, county commissioners can issue a fireworks ban, but even in that case, they will not prohibit all fireworks or fireworks shows – only “skyrockets with sticks” (bottle rockets) and “missiles with fins.” That means sparklers are fair game!

A Refresher on the Top Texas Fireworks Laws

1. Fireworks Sales. Only permitted June 24th – July 4th and December 20th – January 1st. Plus optional:
   • Texas Independence Day (February 25th – March 2nd)
   • San Jacinto Day (April 16th – 21st)
   • Cinco de Mayo (May 1st – 5th if within 100 miles of the Texas/Mexico border)
   • Memorial Day (Wednesday before through Memorial Day)
2. Where can fireworks be shot?
   • NOT within 100 feet of places where flammable liquids, flammable compressed gasses or fireworks are sold or stored … seems reasonable!
   • NOT from or towards motor vehicles, including boats … despite what you see in the movies.
   • NOT in a public roadway, public property, park, lake or U.S. Corps of Engineer Property … hate to set a lake on fire.
   • NOT bought or sold if less than 16 years old … some might argue should be closer to 26 years old.
   • NOT within 600 feet of a church, hospital, day-care center or school … tough on the surgeons, I imagine!
   • NOT within city limits or, in some cities, even possessing fireworks in the city is prohibited. Some cities have hefty fines approaching $2,000 for selling, igniting or possessing fireworks within city limits … country clubs and their hired experts have special permits.
   • ONLY on your own property in unincorporated areas where fireworks are legal or with the owner’s written permission … mailboxes are also a no-no as to both their owner and the postman!
3. LIABLE? Yes. Just satisfying these laws does not protect an ill-fated fire started by shooting fireworks. If intentional, you may be charged with arson. If accidental, you may be subject to a fine and the all damages to the injured property owner… seriously dampens your holiday weekends!
4. Sobering Thought? You have to be sober to buy fireworks. So, don’t get lit before your fireworks celebration starts!

Tilting the Scales in Your Favor

As always, use good judgment when using fireworks, particularly if your area is under a burn ban. Today, of the 254 counties in the state, the Texas A&M Forest Service lists 57 counties that have burn bans, including Bexar (San Antonio) and El Paso counties.

Here’s a list of fireworks shows in DFW this holiday weekend. Have a great (and safe) Independence Day!

* Derek is a rising 2-L at Baylor Law School and a Gray Reed summer associate.

Mary Goodblood grew up believing that she was the only daughter of Cash Goodblood. One day, 25 years after Cash died, and to no one’s surprise after the lucrative sale of the Goodblood family business was plastered on the front page of the local newspaper, Mary received a Facebook message from a woman named Désirée that said “Hi, I think your Dad is also my Dad. Do you want to exchange DNA?” After doing some research, Mary discovered that Désirée’s mom, Candy Onenight, had a very brief relationship with Cash long before Cash and Mary’s mom married. Cash died thinking that he left everything to his wife Martha Goodblood and their daughter Mary under his will and trust.

Regrettably, Cash’s will only addressed certain specific items for distribution; it did not address all of his remaining assets. During probate of Cash’s will the executor discovered valuable mineral interests that were not mentioned in the will. If a paternity test establishes Desirée as Cash’s daughter, does Desirée have a claim to Cash’s mineral interests that did not pass under either Cash’s will or his trust?

Part 1 of our series considered whether Desirée was Cash’s biological child – legitimate or otherwise. The Texas Family Code addresses paternity for child support purposes, not for heirship rights. None of the Family Code provisions that presume the father’s paternity apply to Desirée’s facts. Yet, for purposes of this blog Part 3, we assume the court found paternity – that Desirée was Cash’s biological child.

Part 2 of our series considered whether the “Lawful Descendant” Language in Cash’s Trust described Désirée. Under Texas case law interpreting the meaning of “lawful descendant,” only a child born of parents who were legally married at the time of Desirée’s birth could benefit under a Trust or will. This Part 3 focuses upon assets not captured in the trust or Cash’s will.

What happens to assets not distributed by a will or trust?

Assuming Desirée is Cash’s child and his will does not address the remaining assets of the estate that were not specifically distributed, does Desirée have a claim to them?

When a person dies without a will, it is called intestacy. In Texas, if someone dies without a will or if their will doesn’t mention certain assets like mineral interests, those assets are distributed according to the state’s intestacy laws. These laws determine who will inherit the assets based on a predetermined order, usually starting with the surviving spouse and children. If there are no spouse or children, other family members may be entitled to inherit.

Modern intestate law does not distinguish descendants born out of wedlock from those born of a “lawful” marriage. Because Desirée is the daughter of Candy and not Martha, then as Cash’s surviving spouse Martha would only inherit her one-half interest in the community estate; the other half would be split between Martha and Cash’s children Mary and Desirée. If any of the newly discovered assets, including mineral interests, are Cash’s separate property Cash’s widow Martha receives one-third of any separate personal property and a right to use any real property (a life estate) until her death. Martha and Cash’s daughter Mary – and now, assuming paternity, Desirée – inherit the remainder outright.

Balancing the Scales – for both the Family and the Business in Transition

It is vitally important that a will and trust address both the assets that the owner wants specifically distributed as well as all of the remaining assets. If Desirée was Cash’s biological child and the entirety of his probate estate – his will and any trusts – passed all of his estate only to his “lawful descendants,” Cash’s unknown illegitimate child would receive nothing. However, any unspecified assets – such as mineral interests that are not conveyed by his will and any trusts – would be shared by his illegitimate child Desirée.

Tilting the Scales Blog

This is the third in a series of articles on “real life” business and family issues litigated and resolved by Gray Reed lawyers Cleve Clinton, Greg Sampson and Bill Drabble. This Part 3 of “Illegitimate Heirs – Intestate Inheritance: ‘Hi, I think Your Dad is Also My Dad’” addresses the third of four questions that Desirée must successfully “win” to complete her claim to at least a portion of her claimed share of Cash’s assets – her illegitimate father who never knew her.

No Legal Advice

This blog is informational only. The names have been changed. The facts and legal issues are sometimes changed to make a point. Seek advice worthy of your trust from someone with the necessary education and experience.

Claiming that he was injured when a metal serving cart struck his knee during a flight from El Salvador to New York in 2019, Robert Mata recently sued Avianca Airlines. Avianca filed a motion to dismiss in New York federal court arguing the lawsuit was too late; the statute of limitations had expired. Vehemently objecting, Mata’s lawyers filed a 10-page reply brief citing more than half a dozen apparently-relevant court decisions. Among them was Varghese v. China Southern Airlines which purported to offer a learned discussion of federal law and “the tolling effect of the automatic stay on a statute of limitations.” What if none of Mata’s reply brief was true?

Avianca and the Judge’s Response

Neither Avianca’s lawyers nor the trial court judge could find the decisions or the quotations cited and summarized in the Mata brief. ChatGPT had invented everything. The plaintiff’s lawyer Steven Schwartz cut and pasted the ChatGPT “brief.” Schwartz, a lawyer for over thirty years, finally confessed that he had used the artificial intelligence program to do his legal research and admitted that it was “a source that has revealed itself to be unreliable.” Insisting that he had no intent to deceive the court or the airline, he offered that he had even asked the program to verify that the cases were real – “[I]t had said ‘yes.’” His excuse? He had never used ChatGPT, and “therefore was unaware of the possibility that its content could be false.” Schwartz said he “greatly regrets” relying on ChatGPT “and will never do so in the future without absolute verification of its authenticity.” Can a lawyer just cut and paste a ChatGPT report into their court filings with impunity? Shouldn’t Schwartz have had clear-cut verification of the citations and verifications before he used the ChatGPT report?

Federal Law and Texas State Law

Yes. Both federal law and Texas state court law require every pleading, written motion and “other paper” filed with a court to be signed by the party or their attorney. In federal court, the signed pleading certifies that, to the best of the person’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the claims, defenses and other legal contentions are warranted by existing law.  A Texas signed pleading is a certificate by the lawyer that, to the best of their knowledge, information and belief formed after reasonable inquiry, the instrument is not groundless. Failure to abide by these rules can result in sanctions. Allowing that he had been presented with “an unprecedented circumstance” – a reply brief replete with “bogus judicial decisions, with bogus quotes and bogus internal citations” – the judge ordered a hearing to discuss potential sanctions.

The Likely Result?

Who knows? Schwartz, the brief “writer,” threw himself on the mercy of the court with an affidavit that the artificial intelligence program used to do his legal research was “unreliable.” But, was a lack of intent to deceive the court or the airline sufficient to avoid sanctions? I think not. Schwartz, as with opposing counsel and the judge, had a duty before filing his reply brief to form an independent opinion that his position was supported by existing law – real law. How about Schwartz’s “great regret” and promise to “never do so in the future without absolute verification of its authenticity?” Likewise, Schwartz’s signature certified that he had made “reasonable inquiry” and that his reply brief was not groundless. Well, it was… groundless. Moreover, it was bogus. Perhaps Schwartz will get a pass on this one because of his tenure and his general unfamiliarity with how ChatGPT works. Who knows?

Tilting the Scales in Your Favor  

If you are a lawyer, beware… and be aware. Given the clearly stated duty of every lawyer to double check and be willing to “stand behind” what is presented in a brief or other court motion, I seriously doubt whether many judges will be forgiving of such “mistakes” – even less likely, federal court judges.

Real Life

What does this apparent lawyer snafu have to say to the rest of us? Should we each have a standing practice to “trust but verify” whenever information – gossip or internet – is repeated and it just doesn’t sound right? Too good to be true? Deviates from “common sense?” And, the like. Is it appropriate to ask for the back-up data? Should we take the time? Is it worth it not to take the time? What might the implications be if all of us fail to take the time?

As a general rule, whether you are a lawyer or not, you should always verify the information ChatGTP creates.  It can be an excellent tool for drafting and finding information, but don’t depend on it to be accurate. Always double check your work. 

Attending a wedding in upstate New York, my son, Cam Clinton, read and shared with me this story first reported in the NY Times over the 2023 Memorial Day weekend. Stay tuned for the “rest of the story.”

A Southern Solution

Gray Reed Associate Donte Jones apprises me that, apparently mindful of the ChatGPT pitfalls, Northern District of Texas Judge Brantley Starr now requires all attorneys appearing before his Court to file a docket certification attesting either that no portion of any filing will be drafted by generative artificial intelligence, or that any language drafted by artificial intelligence will be checked for accuracy by a human being. For those Texas attorneys, does this new requirement impact FRCP 11? Stay tuned.

No Legal Advice

This blog is informational only. It is absolutely not intended to be used by non-lawyers or even lawyers for anything other than issue identification and general information.

Mary Goodblood grew up believing that she was the only daughter of Cash Goodblood. One day, 25 years after Cash died, and to no one’s surprise after the lucrative sale of the Goodblood family business was plastered on the front page of the local newspaper, Mary received a Facebook message from a woman named Désirée that said “Hi, I think your Dad is also my Dad. Do you want to exchange DNA?” After doing some research, Mary discovered that Désirée’s mom, Candy Onenight, had a very brief relationship with Cash long before Cash and Mary’s mom married. What should Mary do? If Désirée can first prove paternity – that Cash is her biological father – does she have a legitimate claim to share equally with Mary in Cash’s trust created from the sale of the Goodblood family business?

Whether Desirée is Cash’s biological child (legitimate or otherwise) was considered in the last blog Illegitimate Heirs – Paternity. Assuming that Désirée is Cash and Candy’s child –

Do the words in the Goodblood trust describe an intent to benefit Désirée?

For hundreds of years, will and trust language benefitting the progeny (offspring) of a father used words like “child,” “heir,” and “next of kin” The beneficiaries of Cash’s Trust are described as his “lawful descendants.” Even if Desirée is Cash’s child – and she is unquestionably illegitimate – is she a “lawful descendant” that the trust intends to benefit?

Texas still follows the English common law that reaches back to England’s King Charles II whose only children were born out of wedlock – illegitimate. He had no legitimate child to succeed him to the throne. Thus, Charles’s brother King James II was crowned in 1685 upon Charles’s death. Entrenched in English common law, the Republic of Texas, and later the State of Texas in these early years, affirmed by statute that, like the royals, children born out of wedlock did not have a claim to the rights of either one of a deceased parent – even if their parents later married. So, applying the historic English common law rule to “descendants” and “children” – even before adding the word “lawful” – in Texas, only a child born of parents who were legally married at the time of birth could inherit. Regardless of whether Désirée is actually Cash’s biological daughter, it is undisputed—and undisputable—that she was not his legitimate daughter. Désirée’s mother was never married to Cash. In fact, she was married to another man when she gave birth to Desirée. As you might imagine, more modern cases and statutes have muted this hard line in certain circumstances.

Cash’s trust language, which adds the adjective “lawful” – using “lawful descendants” – further strengthens Mary Goodblood’s argument that Desirée has no rightful claim to Cash’s trust. Even though some states abandon the historical common law rule as to “descendants,” they all reach the same conclusion for “lawful descendants” – the child must have been born to married parents. They interpret “descendants” and “children” to include illegitimate offspring only if the documents’ language does not indicate a different intent. Here, Cash’s repeated use of the adjective “lawful” in his trusts establishes that he intended to exclude illegitimate offspring from any beneficiaries of his trusts. Therefore, Désirée is not a “descendant” – and certainly not a “lawful descendant” – under Cash’s trusts.

Desirée’s Counsel Disagrees

First, Désirée argued that Texas statutory law is now changed from English common law – that illegitimate children can inherit from their parents. Her lawyers would have been correct only if Cash died without a will or a trust, but he had both. Before a 1984 U.S. Supreme Court case Trimble, whether a deceased parent had a will or trust or not, the illegitimate child of a deceased parent could not inherit. After changes in 1984 to Texas estate statutes, a parent who dies intestate – without a will – and with children, all “heirs at law” (children), legitimate or illegitimate, share equally in their deceased parent’s estate. However, Texas still holds that every parent, including Cash, has the right to decide who gets their “stuff,” so long as their intent is spelled out in a will or trust which identifies the beneficiaries. Cash’s “lawful descendants” do not include Désirée, whether her paternity establishes that she is Cash’s illegitimate child, or not.

Second, Désirée argued that the culture and the law is changing, and that “lawful descendants” should include all children – legitimate or illegitimate – because the Texas Estates Code permits a determination of paternity by genetic testing. Genetic testing can answer whether Désirée is Cash’s biological child, but it does not tell us whether she is a “lawful descendant,” as intended by Cash in his will or trust. A better argument is that when Cash signed his will “lawful descendants” meant his children born of a marriage. Texas cases and Estates Code law are clear on this. If the culture has, in fact, changed Texas courts will wait for the Texas legislature to change Texas law on this point.

Family in Transition

After Mary’s father Cash died, Cash’s brother – Uncle Trusty – was anointed as being responsible to handle Cash’s trust assets (principally, the proceeds from the sale of the family business) for the benefit of Mary. Mary was initially thrilled that she might have a sister to hang out with. Mary’s Uncle Trusty just wanted to make sure that he was paying the right person the right amount from Cash’s trust. Mary’s mother Martha didn’t much care for the possibility that – even though born before Martha and Cash started dating – Désirée might have been Cash’s daughter. Martha just wanted all of this to go away. What do you think Desirée – who grew up with her stepbrother and a stepsister – and her mother Candy wanted?

Balancing the Scales – for both the Family and the Business in Transition

Careful thought must be given to both the strictly legal answers as the business transitions from one generation to the next, and to the emotional / practical answers as the family transitions between generations. Both must be weighed to chart a workable solution for all interested parties.

Tilting the Scales Blog

This is the second in a series of articles on “real life” business and family issues litigated over a claimed illegitimate heir, and resolved by Gray Reed lawyers Cleve Clinton, Greg Sampson and Bill Drabble. This Part 2 of “Illegitimate Heirs – Trust Language: ‘Hi, I think Your Dad is Also My Dad’” addresses the second – and probably the most challenging – of four questions that Desirée (who now claims to be a biological daughter of Cash who he never knew) must successfully “win” to succeed in her claim to share with Cash’s daughter Mary, the benefits of her father’s trust.

No Legal Advice

This blog is informational only. The names have been changed. The facts and legal issues are sometimes changed to make a point. Seek advice worthy of your trust from someone with the necessary education and experience.

Mary Goodblood grew up believing that she was the only daughter of Cash Goodblood. One day, 25 years after Cash died and ironically after the lucrative sale of the Goodblood family business was plastered on the front page of the local newspaper, Mary received a Facebook message from a woman named Desiree that said “Hi, I think your Dad is also my Dad. Do you want to exchange DNA?” After doing some research, Mary discovered that Desiree’s mom, Candy Onenight, had a very brief relationship with Cash long before Cash and Mary’s mom married. What should Mary do? Despite the fact that Cash is not listed as the father on Desiree’s birth certificate, does she have a legitimate claim to any of the Goodblood family wealth?

Is Desirée the biological child of Cash (and Candy) – legitimate or otherwise?

The closest Texas law that speaks to whether Desirée is Cash’s descendant is the Texas Family Code provision for paternity and child support. No comparable statutes exist to resolve heirship rights. Before the Federal Child Support Act of 1984 Texas children (and their mothers) had no legal right to receive support from an alleged dad. All later Texas paternity laws – written for the Texas Family Code – focused on child support by a living male, not heirs. The Family Code paternity laws presumed paternity if the father (i) was married to the mother during the marriage, (ii) voluntarily accepted paternity on the birth certificate or by adoption, and other similar conduct, like representing the child as his. Then DNA came along and the Family Code added genetic testing, requiring at least a 99% probability of paternity. But, that’s for an alleged father and child support. Later – for those who die without a will (an intestate heirship proceeding), the Texas Estates Code allows genetic testing to prove the decedent’s heirs by referring to the standards of proving paternity under the Family Code. But those provisions do not apply to beneficiaries under Wills or Trusts. Before he died, Cash did not acknowledge – and no Court ever determined – that Cash was Desirée’s biological father. None of the DNA tests “swapped” between Desirée and Mary – nor the comparative tests of Uncle Trusty’s DNA – met the Texas Family Code paternity criteria. They all fell short and were, at best, inconclusive. Therefore, without a court finding of paternity or a settlement between the two girls, Desirée had no avenue for recovery.

Desirée’s Counsel Disagrees

Pointing to the Family Code provisions establishing paternity by DNA, Desirée’s Counsel maintains that while DNA testing of Cash’s brother is not the same as Cash’s DNA, it’s close enough. Desirée completes 8 DNA tests conducted by two different testing laboratories but only one test shows a possible familial relationship – and it’s only 82%. Undaunted, Desirée’s Counsel presses on to trial with some DNA test evidence of a relationship, an expert to support that interpretation, and good ol’ fashioned first-hand testimony from Cash’s brothers who know that Candy and Cash dated “back in the day.” Is it enough to establish paternity? Perhaps, if a judge or jury thinks so. But, is it that enough to establish a right to inheritance?

Family in Transition

After Cash died, his brother – Trusty – was anointed as being responsible to handle Cash’s trust assets (principally, the proceeds from the sale of the family business) for the benefit of Mary. Mary was initially thrilled that she might have a sister to hang out with. Mary’s Uncle Trusty just wanted to make sure that he was paying the right person the right amount. Mary’s mother Martha didn’t much care for the possibility that Cash might have a daughter she never knew about. Martha just wanted all of this to go away. What do you think that Desirée and her mother wanted?

Tilting the Scales – Finding Balance for both the Family and the Business in Transition

Careful thought must be given to both the strictly legal answers as the business transitions from one generation to the next, and the emotional/practical answers as the family transitions between generations. Both must be weighed to chart a workable solution for all interested parties.

This is the first in a series of Tilting the Scales articles on “real life” business and family issues litigated and resolved by Gray Reed lawyers Greg Sampson, Cleve Clinton and Bill Drabble. This Part 1 of “Illegitimate Heirs: Paternity – ‘Hi, I think Your Dad is Also My Dad’” addresses the first – and most important – of several questions that Desirée must successfully navigate to win at the courthouse. Check out Part 2 for our continued story …

No Legal Advice

This blog is informational only. The names have been changed. The facts and legal issues are sometimes changed to simplify or make a point. Seek advice worthy of your trust from someone with the necessary education and experience.

Following the untimely death last year of his father Big Daddy Bux due to COVID-19, brother Hustler Bux was appointed independent executor of Big Daddy’s Will. When Hustler asked for a judicial discharge, sister Kathy “Kitten” – who had cared for both parents and still lived in the family home – objected complaining that Hustler failed to disclose important facts related to the estate. Kitten’s mistrust was intensified by altercations between them at the family home, and then confirmed by Hustler’s late inventory and accounting revealing his uneven distribution of Big Daddy’s $5 million estate. Without telling Kitten, Hustler (i) deeded the family home to Kitten and deducted his determination of its value from her share, (ii) deeded a ranch in Goliad to himself and their two brothers – but not her, (iii) reserved $150,000 of estate funds to cover his attorneys’ fees to defend any lawsuit. Kitten asked for explanations. Hustler refused. Even worse, Hustler intimated that, by just asking for the estate information, Kitten violated the will’s “no-contest” clause. Can Hustler refuse to tell Kitten about Big Daddy’s estate and his assets? What’s a “no-contest clause?” What is a judicial discharge?

Refusal to Reveal Information – Breach of Fiduciary Duty to Disclose

Hustler’s oath to the court when he was appointed executor of Big Daddy’s will sealed the fiduciary duty he owes to all beneficiaries of Big Daddy’s estate, including Kitten. Until properly distributed under Big Daddy’s directions in his will, Hustler acts as trustee of the estate’s property for the benefit of all the beneficiaries under Big Daddy’s will. Acting as a trustee, Hustler owes – to the owners of the property that he is overseeing – a duty fully to disclose all material facts of which he is aware that might affect the beneficiaries’ rights. Hustler – and all other executors – also owe each of their estate beneficiaries “a high duty of good faith, fair dealing, honest performance, and strict accountability.” All of these are embodied in the executor’s oath of office.

No-Contest Clause

Intending to avoid the family beneficiaries fighting over what they got upon Big Daddy’s demise, his will included a “no-contest” clause. Responding to Kitten’s request for an inventory and an accounting, Hustler’s lawyer threatened that she risked losing her inheritance under the will’s no-contest clause.  A “no-contest” clause is a provision in a will that would cause the forfeiture of anything in favor of a person who contests the will unless a court determines that (i) there was just case for bringing the claim and (ii) the claim was brought in good faith.

Judicial Discharge

About this time, Hustler filed a Motion for Judicial Discharge under the Texas Estates Code. Kitten objected and Hustler finally delivered an inventory and accounting showing that Kitten had not received the same amount as her brothers.  A “Judicial Discharge of Independent Executor” seeks to discharge Hustler, as the independent executor, from any liability involving matters relating to his administration of Big Daddy’s estate – that have been fully and fairly disclosed. Because the finally-produced inventory and accounting disclosed that all beneficiaries had not been treated equally and that Hustler had improperly withheld funds, Hustler would not only be denied a discharge, he would in all probability also be required to make Kitten “whole” and to reimburse her for her attorney’s fees. When an independent executor takes the oath and qualifies in that capacity, he or she assumes all duties of a fiduciary as a matter of law.

The Real Case: In re Stewart Supported Kitten on Appeal

The real “Kitten” in the San Antonio court of appeals case was Jennifer Stewart. She prevailed over her executor brother Wayne Stewart. It was only due to Jennifer’s efforts that she received an equal distribution of the estate by Wayne’s own accounting; further, it was only due to her efforts that Wayne returned $48,000 to the estate for the benefit of the residual beneficiaries. Further, by pursuing her objection to Wayne’s judicial discharge to verdict, Jennifer obtained a judgment requiring Wayne to return $150,000 in funds he “reserved” (that is, paid to his attorneys) and was denied the judicial discharge he sought. The San Antonio Court of Appeals upheld the verdict of the trial court which awarded Jennifer her reasonable and necessary attorney’s fees and costs.

Tilting the Scales in Your Favor

If you are a Texas executor, communicate, communicate, communicate – let everyone know what’s going on. Disclose all the assets, the income, the expenses and the values – just like it was shared ownership in a business. Treat all the beneficiaries fairly and take care to undertake your fiduciary duties in good faith, by fair dealing, and by full disclosure.

If you are the beneficiary of a will in Texas, know that you have certain rights. Encourage your executor to communicate early and completely all reasonably necessary information that you should get to understand what is going on. You are entitled to it.

Both the executor and the beneficiaries are tasked with working through and administering the estate in line with the decedent’s directives or Texas law, and for all of the estate’s beneficiaries – even if you don’t get along so much.

Left home alone by his inattentive parents and fearing the Wet Bandits, ten-year-old Kevin McAllister rigs his home with a series of booby traps to stop the would-be burglars. Among other measures, Kevin sprays the front steps with water, which quickly freezes, and uses an electric BBQ starter to turn his front doorknob molten hot. But Kevin’s best-lain plan quickly goes awry. Concerned about Kevin safety, Old Man Marley stops by and attempts to open the door. Recoiling in pain, he stumbles backward, slips on the steps, and falls in the snow. Old Man Marley is later diagnosed with a severe concussion and a full-thickness third-degree burn. Will Kevin be ensnared by Marley’s forthcoming lawsuit?

Yes. Even though he set the traps in response to a legitimate threat, Kevin is liable for Marley’s injuries. Texas courts have long expressed a dislike for and concern about the use of booby traps. One explained, “While the law authorizes an owner to protect his property by such reasonable means as he may find to be necessary, yet considerations of humanity preclude him from setting out, even on his own property, traps and devices dangerous to human life and limb of those whose appearance and may be reasonable anticipated, even though they may be trespassers.” In fact, property owners generally owe a duty to avoid injuring trespassers willfully, wantonly, or through gross negligence, as explained in a prior post.

The rule in Texas (and other states) is that setting a booby trap is permissible if and only if the facts are such that the property owner could have used same force and inflicted the same injury had he been present in person. Additionally, the property owner bears the burden of proving that the use of force was justified.

Satisfying that burden requires the property owner to show that the trap was reasonably necessary to protect himself, another person, or his property:

• Self-defense: Under Texas law, a person is justified in using force to protect himself when: (1) he honestly believes that he is in immediate danger; (2) his belief is reasonable; and (3) he only uses the degree of force reasonably necessary to repel the threatened violence. Deadly force is justified only when the person reasonably believes that it is immediately necessary to defend against deadly force.
• Defense of Others: A person is justified in using force to protect another, if, under the circumstances, he would have been justified in using force to protect himself and reasonably believed that his intervention was necessary to protect the other person.
• Defense of Property: Unlike most states, Texas permits the use of force—including deadly force—to protect property interests. A person may use force to protect property if (1) he is lawfully in possession of real or personal property and (2) he reasonably believes that force was immediate necessary to prevent or terminate another’s trespass on the land or interference with the property. Deadly force is allowed in limited circumstances, such as when the person reasonably believes that it is necessary to prevent the imminent commission of arson, burglary, robbery or theft during the nighttime or criminal mischief during the nighttime.

Thus, if the Wet Bandit had been injured by one of Kevin’s booby traps, he could have asserted self-defense or defense of property and likely would have prevailed.

But Kevin’s lawful purpose (protecting himself and his home from burglars) and potential justification for injuring the Wet Bandits does not excuse his injuries to Marley. Property owners set booby traps at their own peril, so that, if they injure or kill someone who did not threaten their person or property, the defenses do not apply. As one Texas court held, “[i]f one with so little regard for human life sets out a [booby trap] with the purpose and intent to injure, he must accept the chances of its discharge at the wrong time, and under circumstances that may occasion injury to an innocent trespasser. He cannot be heard to say that that was a consequence unforeseen, and therefore it was not the proximate result of his acts.” Therein lies the danger of booby traps: You never know who is going to set them off.

Tilting the Scales in Your Favor

If you believe that you, someone else, or your property is in danger, call the police. Do not set up booby traps. And have a merry Christmas, ya filthy animal.