In re Graham, 251 S.W.3d 844 (Tex. App.—Austin 2008, no pet. h.).ESTATE ADMINISTRATION — VenueDecedent was domiciled in Travis County at the time of her death.  ProbateCode § 6 provides that venue is mandatory in the county where the deceasedresided if the deceased has a domicile of fixed place of residence in Texas.Nonetheless, Decedent’s will was filed for probate in Tom Green County andthe applicants swore that Decedent was domiciled in Tom Green County.  Thecourt believed the applicants and the will was admitted to probate in TomGreen County.  When subsequent litigation occurred, one of the applicantsmoved to transfer the case to Travis County because Decedent was domiciledthere at the time of death.  The trial court denied the motion and theapplicant requesting the transfer sought a writ of mandamus to compel thetransfer.The appellate court agreed with the applicant and conditionally granted thewrit of mandamus.  The court rejected arguments that the motion to transferwas partial or was a collateral attack.  Instead, it was a motion totransfer the entire probate case and thus was a direct challenge to thevenue determination made in the order admitting the will to probate.  Thecourt also rejected the argument that under Probate Code § 8(c)(1), thecourt could not transfer the case for want of venue because the orderadmitting the will to probate was a final decree.  The explained that anorder admitting a will to probate is not a final decree.The court noted that although one of applicants had originally signed theProof of Death swearing that Decedent was domiciled in Travis County, suchaction did not act as a judicial admission as this applicant was not a partyto the proceeding at the time he made the statement.  In addition, astatement about a person’s domicile is a legal conclusion which anon-attorney is unskilled to make and he did not have legal counsel when hemade the statement.Finally, the court conducted a careful review of the evidence regardingdomicile and determined that “[t]he evidence that [Decedent] slept,gardened, entertained guests, stored her personal possessions, and generallyconducted day-to-day activities in Travis County conclusively establishesresidence in fact and intent to the make the residence her home.”  In reGraham at 851.A dissenting judge believed that there was sufficient evidence to supportthe trial court’s determination that venue was in Tom Green County,especially because the applicant’s motion came 1.5 years after the courtadmitted the will to probate and only because litigation had erupted betweenthe original applicants.Moral:  Probate Code § 6 is a mandatory venue provision and thus it isessential to bring probate actions in the correct county to reduce thelikelihood of later procedural disputes based on lack of venue.For summaries of other recent Texas cases, please follow this link:http://www.professorbeyer.com/Case_Summaries/Texas_Case_Summaries.htm.Posted with permission from the author:Gerry W. BeyerGovernor Preston E. Smith Regents Professor of LawTexas Tech University School of Law

In re Estate of Wilson, 252 S.W.3d 708 (Tex. App.-Texarkana 2008, no pet.h.).WILLS — Lost WillAfter Husband died, Wife was successful in probating Husband’s will eventhough she could not locate the original will.  Son (Wife’s step-son)contested the probate of the will claiming that the evidence was legallyinsufficient to rebut the presumption of revocation that arises when theoriginal will cannot be located.The appellate court agreed with Son.  The court began its analysis byrecognizing that when a will was last known to be in the testator’spossession and cannot be located after death, a presumption of revocationarises which can be rebutted by a preponderance of the evidence.  The courtalso explained that “the testator’s continued affection for the chiefbeneficiary [of the will], without evidence tending to show the decedent’sdissatisfaction with the will or any desire to cancel or change the will, issufficient to rebut the presumption of revocation of a missing will.”Wilson at 713.The court then examined the record and found it lacking of any directevidence of why the original will could not be located.  Wife’s merestatement that as far as she knew and believed, Husband had not revoked thewill is not evidence of the asserted facts.  In addition, there was noevidence of Husband’s continued affection for Wife or that Husband hadcontinued to recognize the will’s validity.  Accordingly, the court heldthat the evidence was legally insufficient to rebut the revocationpresumption and remanded the case to the trial court.Note:  This case also involved several procedural issues such as therequirements of a restricted appeal, when evidence is considered legallyinsufficient, and proper extent of a remedy (render or remand).Moral:  Original wills need to be protected so that they are available atthe time of probate and are not inadvertently lost, destroyed, or located bydisgruntled heirs.For summaries of other recent Texas cases, please follow this link:http://www.professorbeyer.com/Case_Summaries/Texas_Case_Summaries.htm.Posted with permission of the author:Gerry W. BeyerGovernor Preston E. Smith Regents Professor of LawTexas Tech University School of Law

In re Estate of Tei, 251 S.W.3d 66 (Tex. App.—Waco 2008, pet. denied,

rehearing filed).

ESTATE ADMINISTRATION — Independent Administration — Closing Estate by

Operation of Lawnert

Testator died in 1977 and his estate was handled through an independent

administration in 1978.  Although the executor paid creditors and

distributed estate assets promptly to the beneficiaries, he never filed an

affidavit to close the estate under Probate Code § 151.  About thirty years

later, a beneficiary petitioned the court to be appointed as the executor to

resolve a dispute regarding royalty interests held by several devisees.  The

court refused his request, closed the estate under Probate Code § 152, and

recommended that he could seek resolution of this issue in a separate legal

proceeding.  The beneficiary appealed.

The appellate court dismissed the appeal.  The court explained that the

closing methods of Probate Code § 151 and 152 are not exclusive.  Prior

cases have held that final distribution of the estate after creditors are

paid results in the closing of the estate by operation of law.  Thus, the

trial court lacked jurisdiction to take further action with regard to

Testator’s estate.

A dissenting judge pointed out that no court has ever determined that all

estate assets were distributed and thus the conclusion that the estate was

closed as a matter of law was incorrect.

Moral:  Even though not required, it would be prudent to close all

independent administrations by affidavit to avoid the possibility of renewed

estate administration decades later.

Attribution:

For summaries of other recent Texas cases, please follow this link:

http://www.professorbeyer.com/Case_Summaries/Texas_Case_Summaries.htm.

Gerry W. Beyer

Governor Preston E. Smith Regents Professor of Law

Texas Tech University School of Law

Professor Beyer, well known probate law professor and frequent contributor to the Texas Probate Lawyers listserv, has graciously allowed this site to publish his case law updates, which are available at his website:

web http://www.ProfessorBeyer.com   

For summaries of other recent Texas cases, please follow this link:

http://www.professorbeyer.com/Case_Summaries/Texas_Case_Summaries.htm.

A heartfelt thanks goes to Professor Beyer for allow us to repost his updates here on our blog.

 Insurance companies have been inserting subrogation language in their policies. This language states that if you are injured by a third party, and that third party pays insurance benefits, the insurance company gets its money back…even if there’s not enough to go around. http://www.statesman.com/opinion/content/editorial/stories/04/16/0417kostura_edit.html 

An email purporting to be a a federal subpoena is circulating. In the email, a copy of what appears to be a federal subpoena (complete with official looking decal) asks the user to download Adobe software in order to view the subpoena. The email includes several bits of real information about the user’s company. The software instead downloads software to steal a computer users identity, or take control of the user’s computer.http://www.nytimes.com/2008/04/16/technology/16whale.html?_r=1&oref=slogin 

An FDD is the updated term for UFOC. An FDD is a list of disclosures that a franchisor is required to disclose to potential franchisees regarding the franchise offering, start up costs and a summary of important terms contained in the franchise agreement. Like a UFOC, an FDD is required in all fifty states. However, some states require additional disclosures.

A UFOC is a Uniform Franchise Offering Circular. This is a set of disclosures that companies selling franchises must give to potential buyers in advance. The disclosures include a synopsis of the franchise agreement, financial information about the business and its owners along with several other useful items to assist potential buyers. On top of the federally required disclosures, many states also require franchisors to supply additional information.

David L. Leon, PC has moved offices. We are now located at 3500 Oak Lawn Ave., Ste. 205, Dallas, Texas 75219.  We now offer services including wealth preservation, asset protection, and, through our association with Pearce Ferguson and Davis law firm, securities and private placement services.

Software Freedom Law Center sued Verizon on behalf of BusyBox for allegedly violating BB’s copyrights 

http://www.internetnews.com/bus-news/article.php/3715336