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BILL ANALYSIS |
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By: Hartnett |
BACKGROUND AND PURPOSE
Several states have enacted statutes that prohibit the application of penalty clauses in wills and
trusts when a challenge to a will or trust is found to be made in good faith and with probable
cause. Several lower courts in Texas have adopted this prohibition. The Texas Supreme Court
in Calvery v. Calvery, 122 Tex. 204, 55 S.W.2d 527 (Tex. 1932) cited this prohibition favorably,
but found it unnecessary to adopt the prohibition under the circumstances of the case.
C.S.H.B. 1969 provides that penalty clauses in wills and trusts are ineffective in cases where a
challenge to a will or trust is brought in good faith and with just cause.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly grant any additional rulemaking
authority to a state officer, department, agency, or institution.
ANALYSIS
C.S.H.B. 1969 amends the Texas Probate Code to provide that a provision in a will that purports to penalize an interested person for contesting the will is unenforceable if probable cause exists for commencing the contest and the contest was brought in good faith.
C.S.H.B. 1969 amends the Property Code to provide that a provision in a will that purports to
penalize an interested person for contesting the will is unenforceable if probable cause exists for
commencing the contest and the contest was brought in good faith.
EFFECTIVE DATE
On passage, or, if the act does not receive the necessary vote, the act takes effect September 1,
2009.
COMPARISON OF ORIGINAL TO SUBSTITUTE
H.B. 1969 as filed was a “type-only” Council document, whereas the C.S.H.B.1969 is a Legislative Draft version. C.S.H.B. 1969 has gone through the formal review process.