Bustos Law Firm

Archive for August, 2011|Monthly archive page

A Will’s Bare Necessities

In Legal, Texas Law, Uncategorized, Wills on August 30, 2011 at 10:14 AM

The normal goal for a person to have when writing a will is to ensure that all of his property and money are given to the right people after he dies. On the other hand, perhaps the central focus for an attorney drafting a will is to ensure that the will is written in such a way that it would be very difficult to contest. Both of these goals can be reached by following the statutory guidelines for will requirements and by applying common sense and skill to the drafting process.

In Texas, the Probate Code governs the probate process, including the requirements for a valid will. Section 57 describes who may execute a will, and section 59 details the requirements of the will. In order to execute a will, a person must have “legal capacity.” This means that either the testator (person leaving the will) is eighteen years or older, has been married, or is a member of the armed forces. The statute further requires that the testator has “testamentary capacity.” Testamentary capacity is more amorphous than legal capacity. The only language the statute offers to explain testamentary capacity is that the testator must be of “sound mind.” This term has been further defined by Texas case law with the pinnacle case being Stephen v. Coleman, 533 S.W.2d 444 (Tex. Civ. App.—Fort Worth 1976, writ ref’d n.r.e.). Essentially, testamentary capacity boils down to whether the testator has the ability to understand everything that he is doing in relation to leaving a will and the impact that act will have. A testator must also have “testamentary intent,” which simply requires that the testator intends for the document to be his will.

Other formal requirements are mandated by the statute. The will must be signed by the testator. If the will is attested, as opposed to holographic (entirely hand written by the testator), it must be signed by two witnesses who are older than fourteen. The witnesses must sign at the bottom of the will (subscribe) and must sign the will in the presence of the testator. These requirements seem very simple, yet they only provide the bare minimum of what a will must contain. A will that is valid, and therefore follows all of the statutory guidelines, is not necessarily uncontestable. Great care and skill are often required in drafting a contest–safe will. For further reading, see the Texas Probate Code (especially Chapter IV), accessible at http://law.justia.com/codes/texas/2005/pb.html.

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Response Review: Was the Rick Perry Prayer Rally Unconstitutional?

In Constitutional Law, First Amendment, Legal on August 8, 2011 at 3:45 PM


Governor Perry’s August 6th prayer rally garnered lots of media attention this past weekend. With 30,000 people in attendance, the sheer size of “The Response” was newsworthy—it was reportedly larger than any rally so far this election cycle by any other Republican presidential hopeful. Relatedly, many pundits saw the event as Governor Perry’s proverbial gauntlet throw-down, a flexing of admittedly large social conservative political muscles that have the potential to make him a top contender should he enter the presidential race. There has also been questioning as to whether Governor Perry’s key role in the event was a violation of the Establishment Clause. According to the Southern District of Texas, the short answer to this question is, it doesn’t matter. In Freedom From Religion Foundation, INC. v. Perry, Judge Gray Miller found that even if Governor Perry’s actions had been unconstitutional, plaintiff FFRF–quite possibly along with all other potential plaintiffs–had no standing to sue.

The analysis that leads to this answer follows a long and tangled path, beginning with the text of the Constitution itself, proceeding on to subsequent constitutional amendments, traversing some two hundred years of interpretive jurisprudence, and ending with Judge Miller’s decision in FFRF v. Perry. The First Amendment reads, in relevant part, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” In 1947, the Supreme Court held this portion of the Bill of Rights to be enforceable against state as well as federal governments through 14th-Amendment incorporation. Governor Perry’s actions in his capacity of state governor, therefore, must conform to the mandates of the First Amendment.

Whether they do, however, is a moot question according to Judge Miller, as FFRF had no standing to sue. The three requirements for standing in such a case are: “(1) an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the injury and the conduct complained of; and (3) the likelihood that a favorable decision will redress the injury.” The court, referring heavily to a recent Seventh Circuit opinion on whether President Obama could constitutionally declare a National Day of Prayer, found that plaintiffs failed to meet the first requirement by showing there had been an “injury in fact.”

In arriving at this conclusion, the court emphasized that attendance at the rally was voluntary and that Governor Perry merely invited prayers from those not in attendance: “Governor Perry’s statements are requests, not commands, and no injury flows from a mere request.” The court explicitly held, again referring to the Seventh Circuit opinion, that nonparticipants’ resulting feelings of exclusion are not sufficient to constitute an injury because they only reflect value judgments of the excluded bystanders. Finally, the court acknowledged that its ruling might well have the effect of making it so that nobody would have standing in a case such as the one before it. Judge Miller gave this concern short shrift by simply referring back to the above-mentioned requirements for standing. “[A]bstract injury. . . is not injury in fact,” he stated.

What about the merits of the case? In other words, if FFRF did have standing, how would the court have ruled? Judge Miller gave a strong hint when he stated: “plaintiffs…seek two types of specific injunctive relief that have never been granted by a federal court: (1) an injunction barring a state governor from issuing a proclamation inviting people to pray; and (2) an injunction limiting the manner in which a state governor may participate in a religious function” (emphasis added). If the injunction in question is the type never to have been granted in federal court, it is likely that most courts would decline to extend the Establishment Clause so far as to prohibit activity of the kind in which Governor Perry engaged. It is also likely the Supreme Court would so forbear.

What Does Tort Reform Have in Common with Chuck Norris? Loser Pays

In Costly Litigation, Frivolous Lawsuits, H.B. 274, Humor, Litigation, Loser Pays, Texas Law, Tort Reform on August 4, 2011 at 9:18 AM

Chuck Norris may be able to beat the sun at a staring contest, yet even he has been victimized by meritless and costly lawsuits. Recently, two women sued Chuck Norris after they tried to tear each other’s hair out in the bathroom of one of his restaurants. The pugilistas based their lawsuit on the claim that a restaurant employee should have been present to stop the fight. It cost Chuck Norris $2,000 to pay them to drop their meritless suit—a resolution less expensive than litigating. Because exporting pain was a less than adequate expression of his frustration with a legal system that incentivizes such litigiousness, Chuck Norris recently co-authored an article in the Wall Street Journal, “A Texas Roundhouse for the Trial Lawyers,” in which he praised Texas’s new “loser pays.”

In his article, Chuck Norris points out that small businesses, which are the creators of 64% of American jobs, are usually the target of frivolous lawsuits, paying 81% of business tort liability costs in 2008. A small business earning $1 million must spend $20,000 annually on lawsuits, money that could have otherwise been spent on job creation or product development. Frivolous lawsuits also affect individual Americans; according to estimates, meritless lawsuits cost each American $838 a year. Additionally, groundless plaintiffs congest the legal system making the court system more difficult to navigate for those who have legitimate claims.

The “loser pays” law, Texas House Bill 274, becomes effective September 1, 2011. One of the most significant changes made by House Bill 274 is an instruction to the Texas Supreme Court to make rules for courts to dismiss meritless suits before hearing evidence on the claims. This is a landmark measure because Texas previously did not have a procedure to file a Motion to Dismiss; heretofore, the defendant had to endure costly discovery before disposing of the suit through a No-Evidence Motion for Summary Judgment.  To prevail under the new Motion to Dismiss measure, the defendant must show the court that the suit has no basis in law or in fact.

The teeth behind Texas’s new Motion to Dismiss is that it encompasses mandatory fee shifting: the party who prevails on a Motion to Dismiss, whether it is the plaintiff or the defendant, will be entitled to have their attorney’s fees paid by the losing party. For example, if the defendant files a Motion to Dismiss that is ultimately denied because the claim is based in law or fact, the case will continue through litigation and the defendant must pay the plaintiff’s attorney’s fees and costs incurred in responding to the Motion to Dismiss. The fee shifting aspect of the new Motion to Dismiss measure thus creates risk for both plaintiffs and defendants. Plaintiffs are less likely to assert frivolous lawsuits, and defendants are unlikely to move to dismiss non-frivolous lawsuits.

Other changes made by House Bill 274 include: (1) raising the caps on attorneys’ fees required to be paid by those who reject reasonable settlement offers; (2) instructions to the Texas Supreme Court to make new rules to limit discovery costs and expedite suits with claims under $100,000; (3) prohibiting joinder of responsible third  parties after the statute of limitations has expired; and (4) prohibiting defendants from designating responsible third  parties after the limitations period has expired (unless they did not know of the responsible third  party before the statute of limitations expired and they did not purposefully withhold such information).

With these significant changes, Texas is at the forefront of the effort to stop frivolous litigation and, in turn, to improve the economy by spurring job creation and product development. Come September 1, 2011, two old axioms will ring even more true: “Don’t press your luck with Chuck,” and “Don’t mess with Texas.” Those civil litigants who ignore these words of wisdom by filing frivolous lawsuits will be made to feel significant pain.