This narrative about a daughter gone bad is for title examiners, landmen and moralists. Business development persons, skip straight to the lesson.
Elvira owned a home and lived with Johnny. Elvira and Johnny were named managing conservators for her three grandchildren after a daughter died. The grandchildren lived at the house. Elvira and Johnny signed a “March 11, 2005 Will”, handwritten by Johnny. It said that the house would be equally owned by the grandchildren and nothing would be done to the house without their authorization. All the players knew of the document.
Irma wants it all
Elvira and daughter Irma has a history of not getting along. Fast forward to 2009. At trial it was established that Elvira, along with physical maladies, suffered from psychosis, dementia, and Alzheimers. Notes of a nurse at her nursing facility described her as confused, combative, and unable to find her room without assistance. Irma and Elvira met at a Starbucks and Elvira signed a Warranty Deed, prepared at Irma’s request, conveying the home to Irma and husband in exchange for a “love and affection” (Imagine how the jury received that information). The notary knew something was up when Irma asked if Elvira needed to be present for him to notarize the document. Wasting no time, Irma filed the deed of record the day after signing.
Irma changed the locks on the house and denied access to Johnny. A year after the trespass to try title suit was filed by Johnny and the grandchildren, Irma and husband made improvements to the property.
Was the will effective?
No. The will was not attested to by two witnesses. It could have been a holographic will if it had been written wholly in Irma’s handwriting. Remember, it was handwritten by Johnny.
Was it a gift deed?
No. The will was not acknowledged, witnessed or recorded. Delivery of the property is required but it need not be actual or immediate. Delivery could be constructive. So far so good.
An unrecorded or unacknowledged instrument is binding on the parties to the instrument, their heirs, and a subsequent purchaser who does not pay valuable consideration or who has notice of the instrument (in other words, not a bona fide purchaser for value). The question, then, was …
What was Elvira’s intent?
To be a gift, the donor must intend immediate and unconditional vesting of her ownership interest in the donee. The will did not absolutely and irrevocably divest Elvira of title, dominion and control of the property. The 2005 “will” was not a gift deed. And Elvira clearly did not have the requisite capacity to sign the 2009 Warranty Deed.
Could Irma and husband recover their improvements?
No, thank goodness. Under the Property Code a defendant in a trespass to trial title action who is not the rightful owner of the property, but who has possessed the property in good faith and made permanent and valuable improvements is either:
- entitled to the amount by which the value of the improvements exceeds of the use and occupation. or
- liable for the amount by which the value of the use of and waste or other injuries exceeds the value of the improvements.
The Property Code does not allow for direct reimbursement of money. Receipts for material and labor were not helpful. There was no evidence as to the value of the improvement, and there was no evidence whether the value of their use and occupancy outweighed any increase in the property’s value.
This musical interlude is for Irma’s soul.
And while we’re on the harmonica, an analogue for her behavior.
PS: Nothing personal to Irma. I’m only extrapolating.