Tex. Capital Bank v. Asche, 05-15-00102-CV
| Decision Date | 17 February 2017 |
| Docket Number | No. 05-15-00102-CV,05-15-00102-CV |
| Parties | TEXAS CAPITAL BANK, AS SUCCESSOR INDEPENDENT EXECUTOR OF THE ESTATE OF FREDERIC B. "TEX" ASCHE, JR.; MARY SUSAN BARNHILL, AS INDEPENDENT EXECUTRIX OF THE ESTATE OF SARAH P. "SALLIE" ASCHE; AND BAYLOR UNIVERSITY MEDICAL CENTER, Appellants v. FRITZ ASCHE, VALE ASCHE ELKINS, CRAIG ASCHE, LISA MITTNACHT, AND RICK ASCHE, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the Probate Court No. 2 Dallas County, Texas
Before Justices Bridges, Francis, and Whitehill
Opinion by Justice Whitehill
This will contest concerns whether a forensic psychiatrist's testimony that a stroke rendered the testator incapable of exercising testamentary capacity and consistent testimony from lay witnesses support the trial court's judgment setting aside multiple estate planning documents executed over a more than ten-year time period following that stroke.
In a will contest brought by Tex's children, a jury found that (i) Frederic B. (Tex) Asche lacked capacity to execute a series of wills, codicils, and trust documents after he suffered a serious stroke and (ii) his wife, Sarah P. (Sallie) Asche exerted undue influence over him regarding those documents. The trial court entered judgment accordingly.
Appellants Texas Capital Bank, as the successor independent executor of Tex's estate, Mary Susan Barnhill, as the independent executrix of Sallie's estate, and Baylor University Medical Center as the residuary beneficiary of Sallie's estate (collectively, appellants), contend that the evidence is legally and factually insufficient to support the verdict and the trial court's judgment in favor of Tex's children. Specifically, they argue that:
(i) The evidence is legally and factually insufficient to support the jury's finding that Tex lacked the required capacity when he executed a will and management trust in 2005, a will and related documents in January 1998, and a will and related documents in June 1998, or that he signed any of these documents as a result of undue influence;
(ii) The trial court erroneously admitted Dr. Lisa Clayton's expert testimony;
(iii) The trial court erred in excluding evidence that Sallie left her estate to Baylor specifically "for the purpose of providing financial assistance to those persons who need a bone marrow or other blood related transplant and who cannot otherwise pay for such transplant" instead of for charitable purposes generally;
(iv) A new trial is required because of juror misconduct; and
(v) The trial court lacked jurisdiction to set aside the management trust documents because the trustee was not a party to the suit.
As discussed below, we conclude that:
(i) The record evidence is legally and factually sufficient to support the jury's finding that Tex lacked capacity to execute the 1998 will and all subsequent estate planning documents (and we thus need not reach the undue influence question);
(ii) Dr. Clayton's testimony was not erroneously admitted;
(iii) The trial court did not abuse its discretion by excluding evidence of Sallie's specific bequest requirement; (iv) The trial court did not abuse its discretion by denying appellants' motion for new trial based on jury misconduct; and
(v) The trial court lacked jurisdiction over the management trust because the trustee of that trust was not joined in the suit.
We therefore reverse the trial court's judgment setting aside the 2005 management trust and affirm the remainder of the trial court's judgment.
There was evidence admitted at trial of the following:1
Before The Stroke
Tex was a beneficiary of several family trusts, some of which had existed for generations. He was very proud of the Asche family name and his ancestors' financial legacy, and "in his right mind," Tex would never have wanted this money to leave the family.
Tex married Sallie in 1977. He had five children from previous marriages: Vale, Fritz, Craig, Lisa, and Rick (collectively, the Children).
Tex executed wills in 1994 and 1995.2 The 1995 will left Tex's personal property and certain residences to Sallie, with the bulk of his estate going to the Children and Tex's grandchildren after Sallie's death.
Prior to the stroke, Tex was a flamboyant, dominating person. He "ran the show" and took care of Sallie. He had strong opinions and desires that he did not hesitate to articulate, and he handled the family business affairs and decisions.
Tex suffered a severe stroke in September 1997. His right side was permanently paralyzed, and he could not walk, get his own food, bathe or dress himself, or get himself in and out of a chair. He communicated "on the level of a small child," and was unable to initiate conversations or engage beyond the most basic level. He was unable to make sense of the mail or understand his brokerage account statements. As Sallie noted, "[w]ith brain damage, there is a daily struggle to do the smallest of tasks . . . ."
At least one of the Children or their spouses visited Tex in the hospital every day for almost three months. Several of the Children celebrated Christmas with him in 1997.
The children also visited frequently after Tex left the hospital. Vale and Ed visited often, and Fritz visited about three times a week. The Children that lived out of town wanted to visit, but Sallie told them it was not a good time. Neither Tex nor Sallie ever complained to the Children that they were not paying enough attention to him.
In early January 1998, Sallie contacted Rust Reid, the estate planning lawyer who had prepared Tex's 1995 will. Sallie told him that Tex had suffered a stroke and they wanted to change their estate planning documents. Reid met with Tex and Sallie in their home the next day.
As a result of the meeting, Reid prepared and Tex signed a new will (the January 1998 will). The 1998 will disinherited the Children and left Tex's residual estate to Sallie.
In a memo memorializing the meeting and subsequent events (the Reid Memo), Reid noted that Tex's changed estate plan was motivated in part by the fact that the Children "had paid relatively little attention to [Tex] after the stroke." Reid also stated that the Children "have substantial property" and would receive even more upon Tex's death.
The Reid Memo reported that Tex took the lead in the discussions about his will and "made it clear that the matters discussed were the results of his decisions." Regarding the day of execution, the memo said:
[Tex] was perfectly rational throughout our meeting and clearly understood that he was executing a new will and doing so of his own free will . . . In my opinion, [Tex] was competent. He was alert and all of his responses were appropriate. He gave no indication of being subject to any undue influence.
Sallie called Reid to request that he prepare codicils to the will, and Reid acknowledged that he did what she told him to do.
Tex executed two codicils to the January 1998 will; one in April 1998 and one in May 1998. The first codicil exercised a power of appointment to direct to Sallie all funds in one of the family trusts. The second codicil exercised a special power of appointment to direct the proceeds of another family trust to Tex's grandchildren,3 and exercised a power of appointment directing to Sallie during her lifetime the income of several trusts created for the Children's benefit.
Four days after the executing of the second codicil, Sallie met with new attorneys, Don Godwin and Jim Vetter, to discuss preparing new estate planning documents for Tex. In a follow up letter addressed only to Sallie, Godwin wrote:
Thank you very much for coming in today to visit with Jim Vetter and me. We are having the estate planning documents picked up this afternoon from Rust Reid and will review them and get back to you within the next few days regarding our recommendations . . . .
Vetter subsequently prepared a new will for Tex (the June 1998 will), which made no provision for the Children. Specifically, it stated:
Godwin admitted that they relied on Sallie to explain the will to Tex. And Godwin never told Tex that the will removed the Children from the ancestral trusts.
The will execution ceremony was videotaped and played for the jury. Godwin asked Tex whether the decision to not leave his estate to the Children was his, and whether he was comfortable with that decision. He also asked whether Tex was satisfied that the Children had been adequately provided for by his ancestors. Tex answered "yes" to each question. After the will was signed, Godwin handed the will to Sallie, and said, "You want to take, flip through there also if you will and make sure we got everything as far as the signatures and the notary?"
In 2000, Tex executed a codicil to his June 1998 will and gave Sallie his interest in a ranch family partnership owned by the Asche family members. Tex signed additional codicils in 2003 (clarifying a power of appointment to one of the trusts), 2004 (exercising a power of appointment of certain trust income to Fritz and Vale), and two in 2005 (granting, under the trust known as the mineral trust, $500,000 per year to each of the Children and $1,000,000 to the grandchildren at age fifty and amending the general power of appointment under the will toappoint the interests to Sallie directly). Sallie instructed Vetter to prepare the codicils. Tex did not see these documents until Vetter brought them to his house for signing.
On the recommendations of Sallie and Tex's financial advisor, Sallie contacted...
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