Law Commons^™

Appraising Problems, Not Stuff, Chad J. Pomeroy

St. Mary's Law Journal

Abstract forthcoming.

Unlimited Liability For Banks: Deposits As Fraudulent Transfers, Katherine Zampas

St. Mary's Law Journal

One of a trustee’s most valuable resources in bankruptcy proceedings is his avoidance powers. A trustee is charged with the duty to recover and recapture any property wrongfully removed from the estate by way of fraudulent transfer or preference. In some cases, a trustee has attempted to treat a debtor’s deposit into a bank account as a transfer, rendering it subject to his avoidance powers. Such a result will leave banks collaterally responsible as a transferee for a debtor’s conduct despite their lack of culpability and control over the funds.

The definition of transfer within the Bankruptcy Code is comprehensive …

Keep Suing All The Lawyers: Recent Developments In Claims Against Lawyers For Aiding & Abetting A Client’S Breach Of Fiduciary Duty, Katerina P. Lewinbuk

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers have increasingly become subject to liability under various legal theories, ranging from traditional legal malpractice or negligence liability claims to various third-party actions. Most recently, state and federal courts across the country have recognized attorney liability for aiding and abetting a client’s breach of fiduciary duty. This Article will address the current status of the cause of action for a lawyer’s aiding and abetting her client’s breach of fiduciary duty, explain the commonalities and distinguish nuances as outlined by particular states, examine recent decisions by federal courts that have recognized the cause of action, and culminate in its conclusion …

The Limited Duties Of Lawyers To Protect The Funds And Property Of Nonclients, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Issues arise daily in law practice about the duties owed by lawyers to nonclients with respect to funds or property entrusted to them. In resolving those issues, care must be exercised when interpreting state versions of Model Rule 1.15, the American Bar Association’s pattern ethics rule on safekeeping of funds and property. Otherwise, a lawyer’s duties to third persons may too readily encroach on the performance of obligations owed to clients, as well as on the legitimate interests of lawyers themselves.

As numerous authorities have recognized, lawyers are obliged to protect the property interests of third persons only if they …

The Texas Constructive Trust And Its Peculiar Requirements, David Dittfurth

Faculty Articles

Consider two cases. In the first case, you represent the children of a woman who was intentionally and wrongfully killed by her husband. After having pled guilty to negligent homicide, the husband probates his wife's will in which he is the sole beneficiary. In the second case, your client attempts an online transfer of her savings to another of her accounts but enters the account number erroneously and sends her life's savings to a stranger's account. The recipient of this windfall has withdrawn the money in cashier's checks and refuses to return them to her.

Your clients want a court …

Witnesses' Signatures Located Only After Self-Proving Affidavit Do Not Satisfy Attestation Requirements., Michael W. Mccrum

St. Mary's Law Journal

Abstract forthcoming.

Videotaping The Will Execution Ceremony - Preventing Frustration Of The Testator's Final Wishes., Gerry W. Beyer

St. Mary's Law Journal

Abstract forthcoming.

Contractual Wills - Do 1979 Probate Code Revisions Solve The Procedural Problems., Erwin Smith Mcgee

St. Mary's Law Journal

Abstract Forthcoming.

The Rights Of An Illegitimate Child Post - Gomez V. Perez: A Legitimate Situation., Deborah J. Venezia

St. Mary's Law Journal

Throughout Texas history the legal status of illegitimacy has prevented an illegitimate child from enjoying the right of parental support guaranteed to a legitimate child. The United States Supreme Court’s decision in Gomez v. Perez rendered unconstitutional the denial of an illegitimate child’s right to parental support on the basis of his illegitimacy. In response to Gomez, the Texas Legislature enacted Chapter 13 of the Texas Family Code (TFC) which provides for voluntary legitimation of an illegitimate child by the father. Section 13.01 gave an illegitimate child, whose natural father did not voluntarily acknowledge paternity, procedure to establish the parent-child …

Probate Court Lacks Authority To Remove An Independent Executor Adjudged Non Compos Mentis., David V. Jones

St. Mary's Law Journal

Abstract Forthcoming.

A Source Of Revenue For The Improvement Of Legal Services, Part Ii: A Recommendation For The Use Of Clients' Funds Held By Attorneys In Non-Interest-Bearing Trust Accounts To Support Programs Of The Texas Bar Association And An Analysis Of The Federal Income Tax., Taylor S. Boone

St. Mary's Law Journal

Abstract Forthcoming.

Stale Future Interests: Can Texas Pass A Constitutional Reverter Act., Robert H. Sheppard

St. Mary's Law Journal

Abstract Forthcoming.

The Possession By A Trustee Of The Power To Alter The Time And Manner Of Enjoyment Of Life Insurance Proceeds Held In Trust Requires That The Value Of The Proceeds Be Included In The Decedent Trustee's Gross Estate., Alex Huddleston

St. Mary's Law Journal

Abstract Forthcoming.

Parol Evidence To Prove Resulting Trusts., Mance M. Park

St. Mary's Law Journal

Abstract Forthcoming.

The United States Government Breached Its Fiduciary Duty By Paying Oklahoma Estate Tax On The Property Of A Noncompetent Osage Indian Without Determining Whether Intervening Cases And Internal Revenue Rulings Had Removed The Requirement For Paying The Tax., Phyllis Wilson Gainer

St. Mary's Law Journal

Abstract Forthcoming.

A General Power Of Appointment Created After 1942 By The Will Of The Donor Is Taxable To The Estate Of The Donee Without Regard To Probate Of Donor's Will Where The Donor And Donee Were Killed Simultaneously Under Circumstances Where The Survivor Could Not Be Determined., Charles R. Billings

St. Mary's Law Journal

Abstract Forthcoming.

The Executor's And Administrator's Statutory Compensation In Texas., Ben G. Sewell, Paul W. Nimmons Jr.

St. Mary's Law Journal

Abstract Forthcoming.

Want Of Trustee As Affecting The Creation Of Trusts., Arthur Yao

St. Mary's Law Journal

If a court determines that an instrument created a trust, that trust will not fail for want of a trustee. The analysis for determining whether a trust was created, however, depends on the context the failure arises in. For testamentary trusts, as long as the testator’s intention is clearly manifested in the will, equity will enforce it regardless of the cause of the failure of trustee. The analysis for inter vivos conveyances requires the court to determine whether the failure for want of a trustee was initial or subsequent. If the failure was subsequent, a validly created trust will not …

The Scope Of Texas Probate Jurisdiction Over Matters Incident And Appertaining To An Estate., Paula C. Tredeau

St. Mary's Law Journal

Providing for probate court jurisdiction to accommodate all types of probate issues would lead to a more efficient probate system in terms of cost, time, and judicial economy. However, the constitutional and statutory constraints establish serious limits on probate jurisdiction. The 1973 legislature adopted a major revision to section 5 of the Probate Code to simplify and clarify probate jurisdiction by reorganizing the probate court system. In the four subsequent revisions to section 5 of the Probate Code, the issue of whether to distinguish the phrases “appertaining to an estate” and “incident to an estate” arose. These subsequent amendments continued …