In re the Estate of Kam

484 S.W.3d 642, 2016 WL 787921
CourtCourt of Appeals of Texas
DecidedFebruary 29, 2016
DocketNo. 08-14-00016-CV
StatusPublished
Cited by19 cases

This text of 484 S.W.3d 642 (In re the Estate of Kam) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Estate of Kam, 484 S.W.3d 642, 2016 WL 787921 (Tex. Ct. App. 2016).

Opinion

OPINION

YVONNE T. RODRIGUEZ, Justice

Carol Elam appeals a bénch trial order denying her application to probate the purported last will of her deceased father, Charles Joseph Kam. The will Carol submitted to the court completely disinherits her brother,' David' Kam. David asserts that the trial court correctly rejected the will offered by Carol because it was not properly executed and because it was the product of Carol’s undue influencé on Charles. He also argues that the trial court was justified in finding that Carol did not offer the will to probate in good faith.

We reverse and render judgment admitting the purported will to probate, and remand for further proceedings.1

BACKGROUND

Robert Kant’s Death and Aftermath

Two tragedies struck the Kam family between 2011 and 2012: the death of a father, Charles, and the death of his son, Robert. Both deaths spawned contentious probate litigation in the Dallas courts, replete with two lawsuits, an eviction attempt, tit-for-tat allegations of fraud and forgery, complaints with the State Bar, and a family polarized into two camps.

Although this particular case concerns the validity of Charles Kam’s will, the roots of this dispute between Carol and David trace back to actions taken after Charles’ late son- Robert was diagnosed with pancreatic cancer. In the aftermath of the diagnosis, Robert Kam created the Robert S. Kam Trust to manage his assets. It is undisputed that Robert amended the Trust’s terms shortly before he died to redistribute certain assets within the Trust and to name David as trustee. Robert also named David as his estate’s executor.

Following Robert’s death, David assumed the role of trustee and began clash-in'g with Robert’s adult son Justin over control of a house held by the Trust. David ’also attempted to submit Robert’s will to probate.- Carol and Justin contested the validity of both Robert’s will and the Trust, accusing David of mismanaging trust assets and misappropriating Robert’s estate. Animosity from that legal dispute bled out into the family, with Charles Kam’s surviving children all eventually aligning against David- in the litigation in Robert’s case. This created the backdrop for the current litigation at bar.

Charles Kam’s Reaction to the Emerging Feud :

Carol Kam, the family’s youngest daughter, was Charles Kam’s caretaker in the months before his death at age ninety; Although witnesses testified that Charles was mentally sharp and still driving two months before he''died, Charles had also' suffered a stroke that weakened him physically, and according to David, he experi-' eneed occasional memory loss. Charles lived with a roommate at his home in Dallas, and would often visit Carol, who lived nearby. David also kept in regular phone contact with Charles. Charles’ other son Tom, who lived in Austin, maintained a long-distance relationship with his father and spoke to him almost every day. Charles’ daughters Cheri and Cindy had [646]*646limited contact with Charles in the months leading up to his death.

While the will contest in Robert’s case was' pending, Carol told Charles that she suspected David was conspiring with hid attorney and Robert’s girlfriend to steal Robert’s estate. Both David and his counsel repeatedly denied that allegation at trial. Tom testified that Charles shared Carol’s concerns over David’s management of Robert’s estate.

At some point following Robert’s death, Carol opened her father’s mail and learned that David had been named as sole beneficiary of Charles Kam’s Veterans Administration Life Insurance Policy. Previously, the policy had allegedly named both Tom and Robert as beneficiaries. Carol informed Charles of the change, and according, to her, Charles became very upset, stating that he never made the change.2

Carol testified that Charles then instructed her to find his will, but she could not — the will was- missing.’ It is'-undisputed by both sides that Charles’ original lost will split his estate evenly between his six children, including David and Carol. It is also undisputed that the only financially significant asset in Charles’ estate at the time of trial was a house,- encumbered by a mortgage. lien, with an equity value of between $60,000 and $70,000. Upon learning that the will was missing, Charles allegedly told Carol to have her then-boyfriend draft him a new will that he would sign. Carol testified that it was the VA insurance policy change, not the dispute over Robert’s estate, that finally caused Charles to change his will.

Meanwhile, the probate court in Robert’s ease found that Carol’s will contest was not brought in good faith, and over her objection, the will was admitted to probate and David was appointed as executor of Robert’s estate. Litigation in that case was- ongoing at the time of trial, and the parties in that case recently settled on appeal during the pendency of this action.3

Charles Kam’s Alleged New Will

A year after Robert Kam died, Charles Kam met with Carol’s then-boyfriend, Jimmy Carter, who was not a lawyer, to type up a new will that disinherited David. Carter testified that he found a form will online that had instructions on how to properly execute a will, and that he filled in and changed provisions based on Charles’ wishes.4 The will named Tommy and Carol as co-executors. It excluded David from inheriting anything, and removed Robert as an heir, ultimately resulting in a four-way split of the estate between the rest of Charles’ living children. Carol also submitted a handwritten letter to the trial court, purportedly from Charles Kam addressed to David. According to her, Charles instructed her not to deliver the letter to David until after Charles had died. The letter, which was notarized on April 11, 2012, reads as follows:

[647]*647David,
I left you out of my will.
Changing my VA-Policy.
I saw what you did to Justin in keeping him out of his Father’s house against Robert [sic] wishes.
Robert would have not hired an attorney — & I dont [sic] need to [illegible] the hassel [sic] — I am leaving everything to Tommy for its [illegible]. Tommy, Cindy, Cheri & Carol.
Charles J. Kam

Oncé the will was prepared, Carol took Charles to a UPS Store in Casa Linda Plaza. While there, Charles signed the will in the presence of notary Mona Eakin. Eakin testified that she checked Charles Kam’s identification because the name sounded familiar to her, since there had been a complaint that someone named Kam had not signed a notarized document, and she wanted to make sure the man was who he said he was. Eakin spoke with Charles briefly, determined the document was a will, asked him if he knew what he was signing, and then, after confirming he understood, asked him to place his thumbprint on the will.5 She then notarized the will.

Shortly thereafter, Carol called her friends Jeanette Collora and Veronica Czi-kora to her house to serve as attesting witnesses to Charles’ will. Neither woman saw Charles actually sigh the document, nor did' either woman see the other sigh the document.

Collora testified that she was not an heir under the will.

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484 S.W.3d 642, 2016 WL 787921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-kam-texapp-2016.