Karla Merrick v. Bonnie Helter, Individually and as Independent of the Last Will and Testament of J.C. Cole ( 2015 )

ACCEPTED
03-14-00708-CV
4159185
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/16/2015 11:49:57 AM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-14-00708-CV
IN THE COURT OF APPEALS FOR THE THIRD FILED IN
JUDICIAL DISTRICT 3rd COURT OF APPEALS
AUSTIN, TEXAS
AUSTIN, TEXAS 2/17/2015 11:49:57 AM
JEFFREY D. KYLE
Clerk
KARLA MERRICK,
Appellant
v.
BONNIE HELTER, Individually and as Independent Executor of
the Last Will and Testament of J.C. Cole, Deceased,
Appellee.
APPELLEE'S BRIEF
From the Probate Court #1, Travis County, Texas
Alex R. Tandy
State Bar No. 19635000
Law Office of Alex R. Tandy, P.C.
Suite A
777 Lonesome Dove Trail
Hurst, TX 76054
Telephone: (817) 281-1600
Facsimile: (817) 485-7588
Email: contact(alextandy.com
Attorney for Appellee
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ii
ISSUE PRESENTED. 1
STATEMENT OF FACTS 1
SUMMARY OF THE ARGUMENT 2
ARGUMENT
PUBLIC POLICY IS NOT A VALID LEGAL BASIS ON WHICH TO
INVALIDATE THE DECEASED'S WILL 3
PRAYER. 12
CERTIFICATE OF SERVICE
CERTIFICATE OF COMPLIANCE
TABLE OF AUTHORITIES
Cases Page
In re Bartels' Estate, 164 S.W. 859 (Tex. Civ. App.—Galveston
1914, writ refd). 7
In re Burt's Estate, 169 A.2d 32 (Vt. 1961). 5
In re Estate of Clark, 219 S.W.3d 509 (Tex. App.—Tyler
2007, no pet.) 6
In re Estate of Good, 274 S.W.2d 900 (Tex. Civ. App.—E1Paso
1955, writ refd n.r.e) 6, 7
In re Estate of Halbert, 172 S.W.3d 194 (Tex. App.—Texarkana
2005, pet. denied) 6, 7
In re Estate of Morris, 577 S.W.2d 748 (Tex. Civ. App.—Amarillo
1979, writ ref d n.r.e) 6
Marion v. Davis, 106 S.W.3d 860 (Tex. App.—Dallas 2003,
pet. denied) 8
Medford v. Medford, 68 S.W.3d 242 (Tex. App.—Fort
Worth 2002, no pet.), overruled on other grounds by
Mansions in the Forrest, L.P. v. Montgomery County,
365 S.W.3d 314 (Tex. 2012) 10
Poole v. Starke, 324 S.W.2d 234 (Tex. Civ. App.—Fort Worth
1959, writ refd n.r.e.) . 5
Snell v. Weldon, 87 N.E. 1022 (Iii. 1909) 5
Wich v. Fleming, 652 S.W.2d 353 (Tex. 1983) 6, 11
ii
TABLE OF AUTHORITIES (CONT'D)
Statutes Page
Tex. Const. art. I, § 21. 9
Tex. Est. Code Ann. § 201.058 10
Tex. Est. Code Ann. § 201.062 9, 11
Tex. Est. Code Ann. § 251.001 5
Tex. Est. Code Ann. § 251.002 5
Tex. R. Civ. P. 91a 2
iii
ISSUE PRESENTED
Whether public policy bars a parent from making a valid will and disinheriting
his adult daughter, whom he sexually abused as a minor.
STATEMENT OF FACTS
The testator, J.C. Cole ("Deceased"), made a valid will that complied with all
statutory requirements under Texas law. Under the terms of his will, the Deceased
left nothing to his only child, Karla Merrick ("Merrick"), the Appellant. Appellee,
Bonnie Helter, is the Executor of the Deceased's will. In her Will Contest, Merrick
alleges (with absolutely no proof) that the Deceased sexually abused her as a child
when she was about age 13. Merrick also alleged that the Deceased drank and was
violent.
According to her Will Contest, when Merrick was about age 45, she finally
confronted the Deceased about his abuse of her when she was a child. Merrick
alleged that the Deceased at first admitted the abuse and reacted with remorse, but
later entered a denial phase. She alleged that the Deceased stated in front of other
people that what happened was Merrick's fault, and he removed her from his will.
Merrick elaborates on some of these points in her Brief in Response to Bonnie
Helter's Motion to Dismiss.
Merrick contended that it was against public policy for a father to exclude from
his will his child whom he had sexually abused and whom he "punished" for
confronting him with the allegations by excluding her from his will. The trial court
granted the Motion to Dismiss filed by the Executor of the will, Bonnie Helter,
holding that Merrick's public policy claim was without a legal basis even if her
unsubstantiated factual allegations were true. See Tex. R. Civ. P. 91a.
SUMMARY OF THE ARGUMENT
The trial court did not err in granting Appellee Bonnie Helter's Motion to
Dismiss. Appellant Merrick's public policy claim is without merit even if Merrick's
allegations of her sexual abuse as a minor by the Deceased are true. There is no
authority to support the claim that in such a situation, public policy would bar a
person from disposing of his property by will as he sees fit and disinheriting his child
if he sees fit. The right and power to dispose of property by will is purely statutory,
and a decedent has the statutory right to dispose of his property on death in a manner
he sees fit. Such right is of great value, and the courts must protect this right as a
matter of public policy, even if the decedent is a thoroughly bad or immoral man. A
person's past criminal, sexual, or immoral conduct does not bar him from making a
valid will and disposing of his property as he chooses. Merrick has cited no relevant
2
authority, and there is none, to support her claim that public policy should bar a
person who has sexually abused his daughter as a minor from disposing of his
property by valid will as he wishes and disinheriting his adult daughter. Such claim
is directly contrary to the law in Texas and public policy pertaining to wills. If the
requirements for disposing of property by will are to be altered, it is the province of
the legislature, not the court. Therefore, the Court should affirm the trial court's
dismissal of Merrick's public policy claim.
ARGUMENT
PUBLIC POLICY IS NOT A VALID LEGAL BASIS ON WHICH
TO INVALIDATE THE DECEASED'S WILL
Merrick alleged in her Will Contest that the Deceased sexually abused her
when she was 13 years old. She also alleged that the Deceased was violent and beat
his wife. Merrick concluded as follows:
26. Sexual deviancy—particularly indecent exposure to a child—his
own child—is against the public policy of Texas. Seeking to conceal this
conduct and to punish his child for his conduct is likewise against public
policy. The exclusion of Karla from the will should be invalidated and
she should be granted her intestate inheritance according to Texas laws.
(Will Contest ¶ 26.)
3
As the trial court ruled, even assuming Merrick's unsupported allegations of
sexual abuse are true, they do not support her public policy claim. Such public policy
claim is totally devoid of merit.
Initially, it should be noted that Merrick's "Common-Sense Statement of
Issues" in her Brief is misleading, at best. Whether "incestuous indecency with a
child [is] against the public policy" of Texas (Appellant's Br. 9), or whether it is
against the public policy of Texas "for a parent to punish or coerce one's child into
silence regarding act of incestuous indecency perpetrated on the child" (id.) is not at
issue in this appeal. Obviously, it is against the law for a parent to sexually abuse his
minor child, and the child should not be punished or coerced into silence about such
sexual abuse. In this case, however, the alleged abuse occurred decades ago when
Merrick was a minor, and all of the events pertaining to the Deceased's will occurred
decades later when Merrick was an adult, not under the control of her father and free
to accuse the Deceased of sexual abuse at any time. Thus, these two issues are not
raised here and are irrelevant. Contrary to Merrick's suggestion, the trial court did
not determine that incestuous indecency with a child does not violate public policy;
it determined only that committing such offense does not bar a person from disposing
of his property by will as he wishes.
4
The only issue raised in this appeal is whether public policy bars a parent from
making a valid will and disinheriting his independent, adult child where the parent
sexually abused the child decades earlier as a minor. As the trial court ruled, there
is no such public policy. A person's past criminal, sexual, or immoral conduct cannot
bar him from making a will. As succinctly stated in In re Burt's Estate, 169 A.2d 32
(Vt. 1961), "[a] thoroughly bad man may make a valid will." Id. at 35; see Snell v.
Weldon, 87 N.E. 1022, 1027 (Ill. 1909) ("Injustice, unfairness, prejudice, or anger;
without a reasonable cause, does not disqualify any person from making a valid
will.").
Merrick's claim is also directly contrary to the law in Texas pertaining to wills
and public policy. Texas Estates Code section 251.002 provides that a person
competent to make a last will and testament may devise under the will "all the estate,
right, title, and interest in property the person has at the time of the person's death,"
Tex. Est. Code Ann. § 251.002(a), and may "disinherit an heir," id. § 251.002(b)(1);
see id. § 251.001 (a person of sound mind has the right and power to make a last will
and testament if certain requirements not at issue here are met). "The right and power
to dispose of property by will is purely statutory. A person by will may devise and
bequeath his property, or any part thereof, subject to the limitations proscribed by
law." Poole v. Starke, 324 S.W.2d 234, 236 (Tex. Civ. App.—Fort Worth 1959, writ
5
ref d n.r.e.). If the requirements for disposing of property by will are to be altered, it
is the province of the legislature, not the court, to effect those changes. With v.
Fleming, 652 S.W.2d 353, 355 (Tex. 1983).
As stated in In re Estate of Good, 274 S.W.2d 900 (Tex. Civ. App. El Paso
1955, writ refd n.r.e), "it is the law of Texas that a citizen of this state may by his will
dispose of his property without regard to the ties of nature and relationship, and may
do so in defiance of the rule of justice or the dictates of reason." Id. at 902.
Furthermore,
"no sentimental considerations of love and affection that should actuate
a man in dealing with his own blood can be decisive as to the validity of
a will that has been executed by a person possessing testamentary
capacity and without undue influence." Stolle v. Kanetzky,
Tex.Civ.App., 220 S.W. 557, 559.
Id.
A decedent has the statutory right to dispose of his property on death in a
manner he sees fit. In re Estate of Halbert, 172 S.W.3d 194, 200 n.9 (Tex.
App.—Texarkana 2005, pet. denied); In re Estate of Clark, 219 S.W.3d 509, 514
(Tex. App.—Tyler 2007, no pet.). The courts must protect this right as a matter of
public policy. Halbert, 172 S.W.3d 194; Clark, 219 S.W.3d 509. "The right of
testamentary disposition conferred by statute is as absolute as the right to convey
property during life." In re Estate of Morris, 577 S.W.2d 748, 756 (Tex. Civ.
6
App.—Amarillo 1979, writ ref d n.r.e.). "Neither Courts, juries, relatives, nor friends
of a testator may say how property should be passed by a will or rewrite a will
because they do not like the distribution of property." Id; accord Halbert, 172
S.W.3d at 200 n.9.
Further, the power of disposing of property "is an inestimable privilege of the
old." Good, 274 S.W.2d at 902. The "right of the owner of property to dispose of it
by will as he may please is one that is often of great value, especially to those who are
old or infirm and dependent upon others for services and attention; and this right
should be as jealously guarded as any other property right." In re Bartels' Estate, 164
S.W. 859, 866 (Tex. Civ. App.—Galveston 1914, writ refd).
Accordingly, no matter how reprehensible the Deceased's alleged conduct of
sexually abusing his minor daughter nor how unjust his exclusion of his daughter
from his will, that has no bearing on his power and right to dispose of his property by
will as he chooses. The Deceased's will was validly made in accordance with Texas
law and disposes of his property as he intended, and the manner in which he disposed
of his property perfectly complies with the law. He may legally exclude his child if
he wishes. There is absolutely no legal basis to support Merrick's claim that an
immoral or violent person, even one who commits sexual offenses against his
daughter, is barred by public policy from making a valid will and disposing of his
7
property as he sees fit. To the contrary, public policy protects such a person's right
to do so. Therefore, Merrick's public policy claim has no basis in law, and its
dismissal should be affirmed.
The cases cited by Merrick referring to public policy limitations in carrying out
the intention of the testator involve different facts and issues, are limited in scope,
and are not analogous to or apposite in this case. Typically, unlike this case, such
cases involve conditions placed by the testator on the disposition of the property, and,
further, typically the cases uphold the intent of the testator against a claim of
invalidity of the conditions based on public policy. See, e.g., Marion v. Davis, 106
S.W.3d 860 (Tex. App.—Dallas 2003, pet. denied) (forfeiture provision did not
violate public policy; and beneficiary failed to establish public policy argument as a
matter of law). Thus, such cases do not support Merrick's public policy claim here.
Merrick's argument based on contract law is also inapposite. There is no parallel
between contract law and the law applicable to wills. Thus, the public policy
considerations applicable to contracts have no relationship or application to wills.
The provisions of the Texas Estates Code and case law discussed earlier set forth this
law and public policy considerations applicable to wills.
Similarly, the criminal and other statutes and regulations cited by Merrick are
irrelevant to whether a person, even one convicted of sexual abuse of his daughter,
8
may dispose of his property by will as he sees fit. Simply because child sexual abuse
is a crime (and obviously against public policy) does not in the slightest support the
claim that it is against public policy for one who is accused of such offense, or even
one who has been convicted of such offense, to dispose of his property as he sees fit,
or to disinherit his child.
Likewise, the Estates Code provision cited by Merrick does not support her
position. Estates Code section 201.062(a)(3), referred to by Merrick, provides that a
parent who has been convicted or placed on community supervision, or has been
adjudicated under title 3 of the Family Code for sexual abuse indecency with a child,
in violation of the Penal Code, and such conduct caused the death or serious injury
of the child, may be barred from inheriting from the child if the child is under 18
years of age. It does not prevent such parent from inheriting from such child who has
reached adulthood. Moreover, the statute requires a conviction (or placement on
community supervision) or an adjudication under the Family Code to prevent
inheritance from the child; mere allegations, even if proved, are insufficient to bar
inheritance from the child. Such statute thus undercuts Merrick's public policy
argument here, where all parties are adults and there has been no adjudication of any
kind concerning Merrick's allegation. Further, the matter at issue in this case
pertains to the right to dispose of property as one sees fit, not the right to inherit. See
9
also Tex. Const. art. I, § 21 ("No conviction shall work corruption of blood, or
forfeiture of estate, and the estates of those who destroy their own lives shall descend
or vest as in case of material death."); Tex. Est. Code Ann. § 201.058(a) ("No
conviction shall work corruption of blood or forfeiture of estate except as provided
in Subsection (b)."); Medford v. Medford, 68 S.W.3d 242 (Tex. App. Fort Worth
2002, no pet.) (brother could not be denied his beneficial interest in home despite
brother's conviction for causing serious injury to his mother, which injury resulted in
transfer of possession of home to brothers), overruled on other grounds by Mansions
in the Forrest, L.P. v. Montgomery County, 365 S.W.3d 314 (Tex. 2012). As the
foregoing demonstrates, rather than support Merrick's public policy argument, the
statutes cited by Merrick, along with the other authority cited above, undercut her
argument and support Appellee's position.
Merrick's references to statutes requiring the reporting of child abuse are
similarly irrelevant and unavailing and have no application to a person's power and
right to dispose of his property by will. Furthermore, it must be remembered that in
this case, Merrick, as an adult, chose not to report her allegations of sexual abuse as
a child. According to Merrick, even after the Deceased told her, after she confronted
him with her allegations, that the confrontation had cost her $3 million, Merrick
10
chose not to report the alleged sexual abuse. Obviously, at that point, the Deceased
could not even be accused of using inheritance to silence Merrick.
In short, no authority supports Merrick's public policy claim. Moreover, to
allow a will to be invalidated by such previously unreported and unsubstantiated
allegations of sexual abuse could only result in chaos for the courts. Under such
ruling, any time a child (or other relative) was disinherited, that child (or relative)
could simply accuse the deceased testator of child abuse (or perhaps some other
offense) in order to invalidate the will. Of course, the deceased testator will not be
present to counter the allegations, leaving it to the court to determine the appropriate
burden of proof and to conduct a trial on the merits of the will contestant's
allegations. The court would also, among other questions, have to determine what
types of evidence would be admissible and how the deceased's side of the story could
be presented and his or her reputation defended.
Clearly, given the complexities of such a legal proceeding and the far-reaching
effects of such a rule, it is the province of the legislature, not the court, to effect such
changes in the law. See With, 652 S.W.2d 353; see also Tex. Est. Code Ann. §
201.062 (discussed above; allowing for barring of inheritance by parent if certain
offenses committed, but offense has to result in conviction or similar outcome). The
court should not attempt to supersede the legislature in such a matter.
11
Accordingly, there is no legal basis for Merrick's public policy claim.
PRAYER
For all the foregoing reasons, it is respectfully requested that the Court affirm
the judgment of the trial court dismissing Merrick's public policy claim.
Respe Ily subm ed
(
Al x R. dy
State Bar No. 19635000
Law Office of Alex R. Tandy,
Suite A
777 Lonesome Dove Trail
Hurst, TX 76054
Telephone: (817) 281-1600
Facsimile: (817) 485-7588
Email: contact@alextandy.com
Attorney for Appellee
12
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has
been forwarded to the following attorney of record for Appellant Karla Merrick on
the go 'day of February 2015:
Paul M. Bohannon, Esquire
Bohannon Legal PLLC Suite 450
8300 FM 1960 West
Houston, TX 77070
Via email: paul@bohannonlegal.com
Alex R. Tandy
CERTIFICATE OF COMPLIANCE
This Brief complies with the word limitation set forth in Texas Rule of
Appellate Procedure 94(i) and contains 3,193 words, exclu ng the parts of the Brief
exempted by the Rule.
Alex R. Tandy