Sunday, October 30, 2011
Elements of Judicial Estoppel
WHAT IS JUDICIAL ESTOPPEL - WHEN DOES THE DOCTRINE APPLY?
Judicial estoppel “precludes a party from adopting a position inconsistent with one that it maintained successfully in an earlier proceeding.” Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 6 (Tex. 2008). This doctrine requires that: (1) a sworn, inconsistent statement be made in a prior judicial proceeding; (2) the party making the statement gained some advantage by it; (3) the statement was not made inadvertently or because of mistake, fraud, or duress; and (4) the statement was deliberate, clear, and unequivocal. Galley v. Apollo Associated Servs., Ltd., 177 S.W.3d 523, 528–29 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see also Pagosa Oil & Gas, L.L.C. v. Marrs & Smith P’ship, 323 S.W.3d 203, 218 (Tex. App.—El Paso 2010, pet. denied) (holding same).
SOURCE: HOUSTON COURT OF APPEALS - 01-10-00766-CV - 10/27/11
In her second issue, Evans contends that Allen is judicially estopped from seeking to probate the Second Will because Allen had previously admitted, in Vinson’s guardianship proceedings, that he was totally incapacitated and thus lacked testamentary capacity to execute the Second Will. Allen contends that the application of judicial estoppel is inappropriate because the standards for incapacity and the standards for testamentary capacity are different, and, thus, she did not assert inconsistent positions in the two proceedings. We agree with Allen.
[Judicial estoppel case law]
Before appointing a guardian, the court must find by clear and convincing evidence that the proposed ward is an incapacitated person. TEX. PROB. CODE ANN. § 684(a)(1) (Vernon 2003). An “incapacitated person” is defined as “an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.” Id. § 601(14)(B) (Vernon Supp. 2010). The court must also find, by a preponderance of the evidence, that “the proposed ward is totally without capacity as provided by this code to care for himself or herself and to manage the individual’s property, or the proposed ward lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or to manage the individual’s property.” Id. § 684(b)(4).
A testator has testamentary capacity if he has “sufficient mental ability, at the time the will is executed, to understand the business in which the [testator] is engaged (the making of the will); the effect of [his] act in making the will; and the general nature and extent of [his] property.” In re Estate of Robinson, 140 S.W.3d 782, 793 (Tex. App.—Corpus Christi 2004, pet. denied); In re Neville, 67 S.W.3d 522, 524 (Tex. App.—Texarkana 2002, no pet.). The testator must also “know [his] next of kin and the natural objects of [his] bounty, and have had sufficient memory to collect in [his] mind the elements of the business to be transacted, to hold those elements long enough to perceive their obvious relation to each other, and to form a reasonable judgment about them.” Estate of Robinson, 140 S.W.3d at 793.
The proper focus is whether the testator had testamentary capacity on the day that the will was executed. Id. (citing In re Estate of Graham, 69 S.W.3d 598, 606 (Tex. App.—Corpus Christi 2001, no pet.)). We may look to the testator’s state of mind at other times “if these times tend to show [his] state of mind on the day the will was executed.” Id. (citing Bracewell v. Bracewell, 20 S.W.3d 14, 22 (Tex. App.—Houston [14th Dist.] 2000, no pet.)); see also In re Estate of Trawick, 170 S.W.3d 871, 877 (Tex. App.—Texarkana 2005, no pet.) (“When there is an absence of any direct testimony of acts, demeanor, or condition indicating that the testator lacked testamentary capacity on the date the will was executed, the testator’s mental condition on that date may be determined from lay opinion testimony based on the witnesses’ observations of the testator’s conduct either prior or subsequent to the execution.”). We consider this evidence “if it demonstrates that a condition affecting the individual’s testamentary capacity was persistent and likely present at the time the will was executed.” Bracewell, 20 S.W.3d at 22 (quoting Horton v. Horton, 965 S.W.2d 78, 85 (Tex. App.—Fort Worth 1998, no pet.)).
Texas courts have held that a testator under a guardianship is “not necessarily incompetent to make a will although such adjudication [of incapacity] is not set aside [at the time the will was executed].” Clement v. Rainey, 50 S.W.2d 359, 359 (Tex. Civ. App.—Texarkana 1932, writ ref’d); see also Duke v. Falk, 463 S.W.2d 245, 252 (Tex. Civ. App.—Austin 1971, no writ) (“Even if the guardianship proceedings had demonstrated that [the testator] had been declared a person of unsound mind, being prior to and not too remote from the date of making the will, nevertheless such evidence would have no probative force except as it might tend to show his state of mind at the time of execution of the will.”). In Clement, the Texarkana Court of Civil Appeals held that:
One’s mental powers may be so far impaired as to incapacitate him from the active conduct of his estate, and to justify the appointment of a guardian for that purpose, and yet he may have such capacity as will enable him to direct a just and fair disposition of his property by will. The most that can be contended for on account of the [guardianship] adjudications is that they prima facie establish that the testator was not competent to make the will.
50 S.W.2d at 359; cf. Stephen v. Coleman, 533 S.W.2d 444, 447 (Tex. Civ. App.—Fort Worth 1976, writ ref’d n.r.e.) (“Therefore, there was no adjudication that the testator was incompetent on the date that the will was signed. It follows then that there was no presumption that the testator did not have testamentary capacity on the date he signed the will.”).
Thus, although the fact that a testator was under a guardianship at the time that he executed a will creates a presumption that he lacked testamentary capacity, that presumption is not conclusive and may be rebutted with evidence that the testator had testamentary capacity on the day that he executed the will. See Clement, 50 S.W.2d at 359; Stephen, 533 S.W.2d at 447 (noting that if testator had been adjudicated incompetent before will was executed, there ispresumption of no testamentary capacity); see also Bolton v. Stewart, 191 S.W.2d 798, 802 (Tex. Civ. App.—Fort Worth 1945, no writ) (“We also believe that the prima facie evidence of insanity at all times subsequent to the adjudication is subject to rebuttal by competent proof . . . .”). A guardianship determination is relevant to the question of testamentary capacity, but it does not follow that a testator automatically lacks testamentary capacity after a court places the testator under a guardianship.
Here, the earlier probate court found on September 27, 2006, that Vinson was an incapacitated person and required a guardian of the person and of the estate. In making this determination, the court ruled that Vinson “lacks the capacity to do some, but not all, of the tasks necessary to care for himself or to manage his property.” The order creating the guardianship and appointing Allen as Vinson’s guardian does not specify which tasks Vinson lacked the capacity to perform. In making this determination, the court did not find that Vinson was “totally incapacitated.”
We therefore conclude that because a testator under a guardianship does not necessarily lack testamentary capacity to execute a will, Allen, by seeking a guardianship for Vinson and by seeking to probate a will executed after the initiation of the guardianship, did not assert inconsistent positions. We therefore hold that Allen is not judicially estopped from seeking to probate the Second Will.
We overrule Evans’s second issue.
We affirm the judgment of the trial court.
SOURCE: HOUSTON COURT OF APPEALS - 01-10-00766-CV - 10/27/11