Reed: Can Veronica take the CD and contest the will?

Sandra W. Reed
Special to the Reporter

Anita Miller executed a will leaving all the property in her estate to her nephew, Roland. A year prior Anita had signed a pay-on-death designation for a certificate of deposit (CD) in favor of her daughter, Veronica.  

Sandra Reed

When Anita died, the bank issued the CD to Veronica and she accepted it. Thereafter, Veronica filed a suit contesting the will on the basis that her mother lacked capacity to make the will and that Roland had exerted undue influence over Ms. Miller that had resulted in her leaving the bulk of her estate to him instead of her daughter.

Veronica asserted that, since Ms Miller had made no other will, she, Veronica, was entitled to the entire estate by intestacy. Can Veronica contest the will even though she has received benefits from the decedent?

Can a Person Accepting Benefits under a Will Contest the Will?

Numerous Texas court decisions have found that a person who has accepted benefits from a will, cannot contest it. Trevino v Treveno, 564 S.W.2d 682, 685- 86, 689 (Tex. 1978). For instance, suppose Anita’s will had left her jewelry to Veronica and the executor had distributed that jewelry to her before she filed her will contest. Veronica’s suit contesting the will would have been dismissed. The court would have determined that, having taken the jewelry by virtue of the will, she no longer had standing to complain of its validity.

Can a Person Who Accepts Non-Probate Assets of a Decedent Contest the Will?

Veronica accepted the funds the bank distributed to her from the CD. The CD is a non-probate asset, meaning its distribution is governed by the contract with the bank, not by the provisions of the will. Texas Estates Code §111.052(b).

One might think that the result from having accepted this benefit would also deprive Veronica of the ability to contest the will. After all the assets belonged to the same decedent.  However, one would be wrong.

The Court of Appeals in San Antonio found no authority in Texas that would prevent a person receiving non-probate assets of a decedent from challenging the validity of the decedent’s will. In the Estate of Perez-Muzza, 446 S.W.3d 415 (Tex.App.-San Antonio 2014, no pet). Therefore, Veronica is free to pursue her will contest.

Sandra W. Reed practices Elder Law in Somervell County, which includes handling probating of estates, drafting of wills, trusts, powers of attorney and deeds as well as estate and Medicaid planning.  She lives on beautiful Chalk Mountain and can be reached at 254.797.0211; 817.946.2809 or at sreed1247@gmail.com.