San Antonio Express-News
Copyright 2009, Paul Premack
September 15, 2009

Statute of Limitations May Bar Fraud Claim
-and-
Life Estate Ends Upon Holder's Death

Dear Mr. Premack: My grandfather wrote a will leaving me a substantial amount of money. He died when I was thirteen, and my father changed the will and I never saw any of that money. Now I am 29 and have done some research into the background. I found that my father never entered the will into probate. How would I go about disputing the altered will and getting my money? – BM

Your father may have acted improperly and illegally with intent to defraud you of your inheritance. Or he may have thought he was following your grandfather’s instructions with no intent to cause you any harm. Those are the two competing allegations that would be made if you could file a lawsuit about his actions. But you face a giant hurdle before you can file suit: the statute of limitations.

Texas law requires you to take action on your legal claims before too much time has passed. You have four years to file suit when you are defrauded or when you are harmed by a breach of fiduciary duty, which is probably how your father’s actions would be construed. However, the four-year limit only begins when you become capable of action, which for you was on your 18^th birthday. Thus, you could have sued him any time before your 22^nd birthday. You have waited 7 years beyond that, so your claim is very likely barred.

Your father may have altered your grandfather’s will, but he never offered it for probate. If it had been submitted for court review, then you could have filed suit within two years after the date you discovered the fraud (after you turned 18). Even if he had filed it for probate so that this law applied, your delay to age 29 stills bars you from bringing a claim now.

Instead of probating the Will, your father treated your grandfather as though he had died intestate. He used the intestacy law to claim heirship as the surviving son. That was a breach of his legal duty to you, but it also was an offense to public policy. As a community, we do not want his behavior to become common or accepted, so Texas law defines that type of activity as criminal.

Under penal code section 32.47, it is a crime to “destroy, remove, conceal, alter, substitute or otherwise impair” the true contents of a written document, or to obscure its legibility, or to impair its availability. If the document is another person’s will, then the crime is punishable as a “state jail felony” (punishable in a state jail for 180 days to 2 years with a possible additional fine up to $10,000). However, state law does not allow him to be prosecuted for the crime if seven to ten years have already passed.

You may find it beneficial to have a direct consultation with an attorney experienced in litigation matters to see if any detailed exception to the law might apply in your circumstances. Otherwise, because you waited so long, there is no legal action you can take to get the money.

Dear Mr. Premack: My mother was given life estate in a house. Can she will her life estate to her children or does it all end upon her death? - RT

Life estate is an interest that allows a person to use, enjoy and profit from a parcel of real property. The interest expires instantly upon the death of the person who owns the life estate (your mother). Thus, she cannot legally include those rights in her Will. On the other hand, her rights do still apply so long as she is alive, and she does have the legal right to sell or assign the use and enjoyment of the property. However, any such transfer would also end immediately at the moment of her death (so generally no one is interested in paying to buy the life estate, because if she dies unexpectedly a week later, the purchased interest terminates along with the life estate’s termination).