Texas Supreme Court Refuses To Rule On Whether Texas Recognizes Tortious Interference With Inheritance Rights And Affirms A Constructive Trust Based On A Finding Of Mental Incompetence

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In Jackson Walker LLPO v. Kinsel, Lesey and E.A. Kinsel owned a ranch, and when E.A. died, he divided his half between his children and Lesey. Jackson Walker, LLPO v. Kinsel, No. 07-13-00130-CV, 2015 Tex. App. LEXIS 3586 (Tex. App.—Amarillo April 10, 2015), aff’d in part, 2017 Tex. LEXIS 477 (Tex. May 26, 2017). Lesey owned sixty percent at that point. Lesey placed her interest into an intervivos trust, which provided that upon her death, her interests would pass to E.A.’s children. Lesey became frail and moved near a niece, Lindsey, and nephew, Oliver.  Lindsey and Oliver referred Lesey to an attorney to assist in drafting a new will. The attorney informed E.A.’s children that Lesey needed to sell the ranch to pay for her care. At that time, Lesey had approximately $1.4 million in liquid assets and did not need to sell the ranch. Not knowing Lesey’s condition, E.A.’s children agreed to sell, and the ranch was sold. Lesey’s $3 million in cash went into her trust. Lindsey, as a residual beneficiary in the trust, would receive most of the money – not E.A.’s children. The attorney also effectuated amending the trust to grant Lindsey and Oliver greater rights, while advising them to withhold that information from E.A.’s children. E.A.’s children sued Lindsey, Oliver, and the attorney for tortious interference with inheritance rights and other tort claims. The jury returned a verdict for E.A.’s children.

The Amarillo court of appeals first addressed the tortious interference with inheritance claim: “Someone who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.” Id. The court noted that many Texas intermediate appellate courts recognized such a claim. The court reviewed several Fort Worth Court’s opinions, where the case had been transferred from, to see if Fort Worth had recognized such a claim, and determined that Fort Worth had not directly done so. The court also noted that it and the Texas Supreme Court had not recognized the claim. The court held that it was solely the authority of the Texas Legislature or the Texas Supreme Court to create a new cause of action. Court rendered for the defendants refusing to recognize that new cause of action. The court reversed on the fraud and other tort claims due to insufficient evidence of damages.  The court affirmed the mental incompetence finding on the trust changes and sale of the ranch. The court then affirmed in part a finding of a constructive trust, making Lindsey hold any proceeds that should have gone to E.A.’s heirs in trust for them.

The Texas Supreme Court granted the petition for review in Jackson Walker, LLPO v. Kinsel, No. 15-0403, 2017 Tex. LEXIS 477 (Tex. May 26, 2017). The Court first addressed whether Lesey had mental capacity to execute the documents:

Documents executed by one who lacks sufficient legal or mental capacity may be avoided. Lesey had the mental capacity to execute the documents effectuating the ranch sale and the fourth and fifth amendments to her trust if she “appreciated the effect of what she was doing and understood the nature and consequences of her acts and the business she was transacting.” The proper inquiry is whether Lesey had capacity on the days she executed the documents at issue. But courts may also look to state of mind at other times if it tends to show one’s state of mind on the day a document was executed.

The Court quoted from the court of appeals summary of her deterioration in the final years of her life:

[Lesey] 1) grew more infirm, 2) experienced macular degeneration, 3) became legally blind, 4) had to have others give her the pills she had to take, 5) had to have others manage her doctors’ care and her finances, 6) became extremely frail, 7) required assistance in walking, bathing, dressing, and eating, 8) became incontinent of urine or urinated on herself, 9) experienced continual confusion and forgetfulness, 10) experienced agitation, and 11) experienced depression. So too did she begin to experience congestive heart failure in 2007 and grow less responsive to the medications administered to ameliorate that condition. The condition resulted in her having renal insufficiency or a precursor to renal failure. Consequently, fluid was pooling in her body, and her heart was unable to “clear it out.” That, according to a physician who testified, could affect a person’s mental state “[w]hen it gets that significant.”

Id. at *16. The Court held that not all of Lesey’s afflictions suggested that she was mentally compromised, and noted that evidence of physical infirmities, without more, does not tend to prove mental incapacity. Id. at *16-19. “But evidence of physical problems that are consistent with or can contribute to mental incapacity is probative.” Id. The Court noted that a board-certified forensic psychiatrist testified how Lesey’s physical challenges contributed to her mental incapacity. She testified that by February 2007 Lesey had “mild to moderate dementia and cognitive impairment.” Id. She added that in 2007 and 2008 Lesey was in the latter stages of congestive heart failure, which led to renal insufficiency. She testified a person’s mental state can be affected by that condition. She testified that Lesey began having “confusion” about her medication in 2007 and that nurse and caregiver notes on Lesey indicated “she was confused, she was forgetful. And those began going up until she passed away.” Id. The psychiatrist opined that by the end of February 2007, Lesey had neither “the executive functioning nor the overall mental capability” to transact business or sign legal documents. Id. As to Lesey’s dementia, the testimony was that “as you’re losing brain cells and if you keep losing so many, some days your brain cells that you have left function better than other days” but that “you’ll still have a significant limitation.” Id. The psychiatrist also noted the deterioration of Lesey’s handwriting as evidence of her mental decline.

The Kinsels testified that well before Lesey executed a document in 2007, Lesey was consistently confused, forgetful, and unable to comprehend conversations and documents. She would ask for a car she no longer owned and could no longer understand jokes. Id. at *20-21. Due at least in part to her loss of vision, she could no longer read, work crossword puzzles, or play board games, all pursuits she once enjoyed. Id. One testified to a “dramatic change in her mental and physical health” beginning in 2006: “She was very forgetful. She was hard to talk to. Just a little disassociative with people.” Carole testified that by Thanksgiving of 2006 Lesey was no longer lucid and would talk and respond only in short sentences or by nodding. Id. “She was not the Lesey that I had known my entire life,” she testified. Another testified that in late 2006 Lesey was “clearly becoming more and more confused and forgetful, and she would forget things that she had recently done or did.” Id. He visited Lesey four days after Lesey executed the document, and testified she was “very agitated and confused.” Id. Lesey told him: “I think I’ve signed something and I don’t know what I’ve signed.” Id. He testified that by 2008, Lesey only sometimes remembered conversations from minutes earlier. Id. He added, “[O]ftentimes I found that she either had not heard what I said or understood it, or didn’t understand it, because I’d have to repeat myself.” Id.

The Court noted that although the defendant maintained at trial that Lesey never lost mental capacity, the jury considered evidence that contradicted this evidence. Id. The Court held:

We agree with the court of appeals that there is sufficient evidence to support the jury’s mental-incapacity finding. Keith’s [the attorney’s] testimony, and that of those who accompanied him on his visits with Lesey, tends to contradict the evidence that Lesey was mentally impaired. And the evidence shows that Keith took his responsibilities seriously and executed his duties carefully and ably. But it is not our place to weigh the testimony adduced at trial. That is the jury’s province.

Id.

The Court then turned to whether Texas recognizes the tort of tortious interference with inheritance rights. Id. at *24-31. The Court held that it and the Legislature had never recognized such a tort. It then held:

We take a host of factors into account when considering a previously unrecognized cause of action. Not the least of them is the existence and adequacy of other protections. In this case, the Kinsels secured judgments holding Jane, Bob, Keith, and Jackson Walker personally liable for fraud and tortious interference with their inheritances. But the trial court also imposed a constructive trust on the funds Jane inherited from Lesey as the trust’s residual beneficiary. Provided the trial court acted in its discretion in doing so, an issue we separately address below, we see no compelling reason to consider a previously unrecognized tort if the constructive trust proved to be an adequate remedy.

Id. The Court held that the constructive trust, based on the mental incapacity finding, provided an adequate remedy and there was no need, in this case, to recognize the tort of tortious interference with inheritance rights. Id.

Regarding a constructive trust, the defendants had several arguments for why the trial court abused its discretion in creating a constructive trust in this case. Id. at *31-35. The Court disagreed and held that there does not have to be a breach of a fiduciary duty by the defendants owed to the plaintiffs. Id. There was no duty owed by the defendants to the plaintiff. Id. Citing to an earlier opinion, the Court held: “It is true that we recently recognized that a ‘breach of a special trust or fiduciary relationship or actual or constructive fraud’ is ‘generally’ necessary to support a constructive trust. But in that same case we reaffirmed our statement in Pope that ‘[t]he specific instances in which equity impresses a constructive trust are numberless—as numberless as the modes by which property may be obtained through bad faith and unconscientious acts.’” Id.

Even though the defendants did not breach any duty owed to the plaintiffs, the Court concluded that the trial court acted within its discretion in imposing a constructive trust: “We hold the mental-incapacity finding, coupled with the undue-influence finding, provided a more than adequate basis for the trial court to impose a constructive trust.” Id.

The Court also held that undue influence was not, by itself, a cause of action that allowed an award of damages. Id. at n. 3. Rather, the Court held that it was a legal theory that allowed a court to disregard a document, such as a trust or will. The Court also held that there was no evidence that the attorney unduly influenced Lesey. Id. at n. 8. The Court held that the following evidence was not sufficient to prove undue influence: the attorney was present for the execution of a document he did not prepare and he drafted a second document and was present for the execution of that document. There was no evidence of what was said between the attorney and Lesey, and the Court also expressly noted that the attorney did not personally gain from these transactions. Id.

The Court affirmed the lower court’s judgment, sustained the constructive trust, and refused to rule on whether a claim of tortious interference with inheritance rights exists in Texas.

After the court of appeals ruled on the Jackson Walker case, the Austin Court of Appeals weighed in and agreed with that Texas has not yet recognized a tortious interference with inheritance claim. In Anderson v. Archer, the trial court’s judgment awarded the plaintiffs $2.5 million in damages based on a tortious interference with inheritance claim. No. 03-13-00790-CV, 2016 Tex. App. LEXIS 2165 (Tex. App.—Austin March 2, 2016, pet. filed). The defendants appealed and argued that Texas law does not recognize such a claim. The court of appeals agreed with the appellants. The court first analyzed prior cases from that court and determined that it had never adopted such a claim. It cited the Jackson Walker opinion and agreed with it. The court in Anderson stated:

In short, we agree with the Amarillo Court of Appeals that “neither this Court, the courts in Valdez, Clark, and Russell, nor the trial court below can legitimately recognize, in the first instance, a cause of action for tortiously interfering with one’s inheritance.” We also agree with the Amarillo court’s assessment that neither the Legislature nor Texas Supreme Court has done so, or at least not yet. Absent legislative or supreme court recognition of the existence of a cause of action, we, as an intermediate appellate court, will not be the first to do so.

Id.  The court also rejected an argument that a tortious interference with inheritance claim is merely a subset of the tort of tortious interference with a contract or prospective contractual or business relationship. It held that it was a separate claim that had not yet been recognized.  The court therefore reversed the award for the plaintiff.

The plaintiff filed a petition for review in the Anderson case, and the Texas Supreme Court requested briefing on the merits. The briefing has been complete since December of 2016, and the Court has yet to grant the petition and set the case for oral argument. Presumably, this case has the right procedural facts to allow the Court to rule on the important issue of whether a tortious interference with inheritance rights cause of action exists in Texas.



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