                                                                                  ACCEPTED
                                                                             03-14-00708-CV
                                                                                    4159185
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                       2/16/2015 11:49:57 AM
                                                                            JEFFREY D. KYLE
                                                                                      CLERK
                CAUSE NO. 03-14-00708-CV

      IN THE COURT OF APPEALS FOR THE THIRD FILED IN
                JUDICIAL DISTRICT        3rd COURT OF APPEALS
                                              AUSTIN, TEXAS
                  AUSTIN, TEXAS          2/17/2015 11:49:57 AM
                                                         JEFFREY D. KYLE
                                                              Clerk
                     KARLA MERRICK,

                                        Appellant

                              v.

BONNIE HELTER, Individually and as Independent Executor of

      the Last Will and Testament of J.C. Cole, Deceased,

                                        Appellee.


                    APPELLEE'S BRIEF



       From the Probate Court #1, Travis County, Texas

                            Alex R. Tandy
                            State Bar No. 19635000
                            Law Office of Alex R. Tandy, P.C.
                            Suite A
                            777 Lonesome Dove Trail
                            Hurst, TX 76054
                            Telephone: (817) 281-1600
                            Facsimile: (817) 485-7588
                            Email: contact(alextandy.com

                            Attorney for Appellee

              ORAL ARGUMENT REQUESTED
                     TABLE OF CONTENTS
                                                           Page


TABLE OF AUTHORITIES                                         ii

ISSUE PRESENTED.                                             1

STATEMENT OF FACTS                                           1

SUMMARY OF THE ARGUMENT                                      2

ARGUMENT

    PUBLIC POLICY IS NOT A VALID LEGAL BASIS ON WHICH TO
    INVALIDATE THE DECEASED'S WILL                            3

PRAYER.                                                     12

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE
                          TABLE OF AUTHORITIES

Cases                                                             Page

In re Bartels' Estate, 164 S.W. 859 (Tex. Civ. App.—Galveston
       1914, writ refd).                                              7

In re Burt's Estate, 169 A.2d 32 (Vt. 1961).                          5

In re Estate of Clark, 219 S.W.3d 509 (Tex. App.—Tyler
       2007, no pet.)                                                 6

In re Estate of Good, 274 S.W.2d 900 (Tex. Civ. App.—E1Paso
       1955, writ refd n.r.e)                                      6, 7

In re Estate of Halbert, 172 S.W.3d 194 (Tex. App.—Texarkana
       2005, pet. denied)                                          6, 7

In re Estate of Morris, 577 S.W.2d 748 (Tex. Civ. App.—Amarillo
       1979, writ ref d n.r.e)                                        6

Marion v. Davis, 106 S.W.3d 860 (Tex. App.—Dallas 2003,
     pet. denied)                                                     8

Medford v. Medford, 68 S.W.3d 242 (Tex. App.—Fort
     Worth 2002, no pet.), overruled on other grounds by
     Mansions in the Forrest, L.P. v. Montgomery County,
     365 S.W.3d 314 (Tex. 2012)                                      10

Poole v. Starke, 324 S.W.2d 234 (Tex. Civ. App.—Fort Worth
      1959, writ refd n.r.e.) .                                       5

Snell v. Weldon, 87 N.E. 1022 (Iii. 1909)                             5

Wich v. Fleming, 652 S.W.2d 353 (Tex. 1983)                       6, 11




                                            ii
                       TABLE OF AUTHORITIES (CONT'D)

Statutes                                               Page

Tex. Const. art. I, § 21.                                 9

Tex. Est. Code Ann. § 201.058                            10

Tex. Est. Code Ann. § 201.062                          9, 11

Tex. Est. Code Ann. § 251.001                             5

Tex. Est. Code Ann. § 251.002                             5

Tex. R. Civ. P. 91a                                       2




                                     iii
                              ISSUE PRESENTED

      Whether public policy bars a parent from making a valid will and disinheriting

his adult daughter, whom he sexually abused as a minor.



                           STATEMENT OF FACTS

      The testator, J.C. Cole ("Deceased"), made a valid will that complied with all

statutory requirements under Texas law. Under the terms of his will, the Deceased

left nothing to his only child, Karla Merrick ("Merrick"), the Appellant. Appellee,

Bonnie Helter, is the Executor of the Deceased's will. In her Will Contest, Merrick

alleges (with absolutely no proof) that the Deceased sexually abused her as a child

when she was about age 13. Merrick also alleged that the Deceased drank and was

violent.

      According to her Will Contest, when Merrick was about age 45, she finally

confronted the Deceased about his abuse of her when she was a child. Merrick

alleged that the Deceased at first admitted the abuse and reacted with remorse, but

later entered a denial phase. She alleged that the Deceased stated in front of other

people that what happened was Merrick's fault, and he removed her from his will.

Merrick elaborates on some of these points in her Brief in Response to Bonnie

Helter's Motion to Dismiss.
      Merrick contended that it was against public policy for a father to exclude from

his will his child whom he had sexually abused and whom he "punished" for

confronting him with the allegations by excluding her from his will. The trial court

granted the Motion to Dismiss filed by the Executor of the will, Bonnie Helter,

holding that Merrick's public policy claim was without a legal basis even if her

unsubstantiated factual allegations were true. See Tex. R. Civ. P. 91a.



                       SUMMARY OF THE ARGUMENT

      The trial court did not err in granting Appellee Bonnie Helter's Motion to

Dismiss. Appellant Merrick's public policy claim is without merit even if Merrick's

allegations of her sexual abuse as a minor by the Deceased are true. There is no

authority to support the claim that in such a situation, public policy would bar a

person from disposing of his property by will as he sees fit and disinheriting his child

if he sees fit. The right and power to dispose of property by will is purely statutory,

and a decedent has the statutory right to dispose of his property on death in a manner

he sees fit. Such right is of great value, and the courts must protect this right as a

matter of public policy, even if the decedent is a thoroughly bad or immoral man. A

person's past criminal, sexual, or immoral conduct does not bar him from making a

valid will and disposing of his property as he chooses. Merrick has cited no relevant

                                           2
authority, and there is none, to support her claim that public policy should bar a

person who has sexually abused his daughter as a minor from disposing of his

property by valid will as he wishes and disinheriting his adult daughter. Such claim

is directly contrary to the law in Texas and public policy pertaining to wills. If the

requirements for disposing of property by will are to be altered, it is the province of

the legislature, not the court. Therefore, the Court should affirm the trial court's

dismissal of Merrick's public policy claim.



                                   ARGUMENT

      PUBLIC POLICY IS NOT A VALID LEGAL BASIS ON WHICH
      TO INVALIDATE THE DECEASED'S WILL

      Merrick alleged in her Will Contest that the Deceased sexually abused her

when she was 13 years old. She also alleged that the Deceased was violent and beat

his wife. Merrick concluded as follows:

       26. Sexual deviancy—particularly indecent exposure to a child—his
       own child—is against the public policy of Texas. Seeking to conceal this
       conduct and to punish his child for his conduct is likewise against public
       policy. The exclusion of Karla from the will should be invalidated and
       she should be granted her intestate inheritance according to Texas laws.

(Will Contest ¶ 26.)




                                           3
      As the trial court ruled, even assuming Merrick's unsupported allegations of

sexual abuse are true, they do not support her public policy claim. Such public policy

claim is totally devoid of merit.

      Initially, it should be noted that Merrick's "Common-Sense Statement of

Issues" in her Brief is misleading, at best. Whether "incestuous indecency with a

child [is] against the public policy" of Texas (Appellant's Br. 9), or whether it is

against the public policy of Texas "for a parent to punish or coerce one's child into

silence regarding act of incestuous indecency perpetrated on the child" (id.) is not at

issue in this appeal. Obviously, it is against the law for a parent to sexually abuse his

minor child, and the child should not be punished or coerced into silence about such

sexual abuse. In this case, however, the alleged abuse occurred decades ago when

Merrick was a minor, and all of the events pertaining to the Deceased's will occurred

decades later when Merrick was an adult, not under the control of her father and free

to accuse the Deceased of sexual abuse at any time. Thus, these two issues are not

raised here and are irrelevant. Contrary to Merrick's suggestion, the trial court did

not determine that incestuous indecency with a child does not violate public policy;

it determined only that committing such offense does not bar a person from disposing

of his property by will as he wishes.




                                           4
      The only issue raised in this appeal is whether public policy bars a parent from

making a valid will and disinheriting his independent, adult child where the parent

sexually abused the child decades earlier as a minor. As the trial court ruled, there

is no such public policy. A person's past criminal, sexual, or immoral conduct cannot

bar him from making a will. As succinctly stated in In re Burt's Estate, 169 A.2d 32

(Vt. 1961), "[a] thoroughly bad man may make a valid will." Id. at 35; see Snell v.

Weldon, 87 N.E. 1022, 1027 (Ill. 1909) ("Injustice, unfairness, prejudice, or anger;

without a reasonable cause, does not disqualify any person from making a valid

will.").

       Merrick's claim is also directly contrary to the law in Texas pertaining to wills

and public policy. Texas Estates Code section 251.002 provides that a person

competent to make a last will and testament may devise under the will "all the estate,

right, title, and interest in property the person has at the time of the person's death,"

Tex. Est. Code Ann. § 251.002(a), and may "disinherit an heir," id. § 251.002(b)(1);

see id. § 251.001 (a person of sound mind has the right and power to make a last will

and testament if certain requirements not at issue here are met). "The right and power

to dispose of property by will is purely statutory. A person by will may devise and

bequeath his property, or any part thereof, subject to the limitations proscribed by

law." Poole v. Starke, 324 S.W.2d 234, 236 (Tex. Civ. App.—Fort Worth 1959, writ

                                           5
ref d n.r.e.). If the requirements for disposing of property by will are to be altered, it

is the province of the legislature, not the court, to effect those changes. With v.

Fleming, 652 S.W.2d 353, 355 (Tex. 1983).

       As stated in In re Estate of Good, 274 S.W.2d 900 (Tex. Civ. App. El Paso

1955, writ refd n.r.e), "it is the law of Texas that a citizen of this state may by his will

dispose of his property without regard to the ties of nature and relationship, and may

do so in defiance of the rule of justice or the dictates of reason." Id. at 902.

Furthermore,

       "no sentimental considerations of love and affection that should actuate
       a man in dealing with his own blood can be decisive as to the validity of
       a will that has been executed by a person possessing testamentary
       capacity and without undue influence." Stolle v. Kanetzky,
       Tex.Civ.App., 220 S.W. 557, 559.

Id.

       A decedent has the statutory right to dispose of his property on death in a

manner he sees fit. In re Estate of Halbert, 172 S.W.3d 194, 200 n.9 (Tex.

App.—Texarkana 2005, pet. denied); In re Estate of Clark, 219 S.W.3d 509, 514

(Tex. App.—Tyler 2007, no pet.). The courts must protect this right as a matter of

public policy. Halbert, 172 S.W.3d 194; Clark, 219 S.W.3d 509. "The right of

testamentary disposition conferred by statute is as absolute as the right to convey

property during life." In re Estate of Morris, 577 S.W.2d 748, 756 (Tex. Civ.

                                             6
App.—Amarillo 1979, writ ref d n.r.e.). "Neither Courts, juries, relatives, nor friends

of a testator may say how property should be passed by a will or rewrite a will

because they do not like the distribution of property." Id; accord Halbert, 172

S.W.3d at 200 n.9.

      Further, the power of disposing of property "is an inestimable privilege of the

old." Good, 274 S.W.2d at 902. The "right of the owner of property to dispose of it

by will as he may please is one that is often of great value, especially to those who are

old or infirm and dependent upon others for services and attention; and this right

should be as jealously guarded as any other property right." In re Bartels' Estate, 164

S.W. 859, 866 (Tex. Civ. App.—Galveston 1914, writ refd).

      Accordingly, no matter how reprehensible the Deceased's alleged conduct of

sexually abusing his minor daughter nor how unjust his exclusion of his daughter

from his will, that has no bearing on his power and right to dispose of his property by

will as he chooses. The Deceased's will was validly made in accordance with Texas

law and disposes of his property as he intended, and the manner in which he disposed

of his property perfectly complies with the law. He may legally exclude his child if

he wishes. There is absolutely no legal basis to support Merrick's claim that an

immoral or violent person, even one who commits sexual offenses against his

daughter, is barred by public policy from making a valid will and disposing of his

                                            7
property as he sees fit. To the contrary, public policy protects such a person's right

to do so. Therefore, Merrick's public policy claim has no basis in law, and its

dismissal should be affirmed.

      The cases cited by Merrick referring to public policy limitations in carrying out

the intention of the testator involve different facts and issues, are limited in scope,

and are not analogous to or apposite in this case. Typically, unlike this case, such

cases involve conditions placed by the testator on the disposition of the property, and,

further, typically the cases uphold the intent of the testator against a claim of

invalidity of the conditions based on public policy. See, e.g., Marion v. Davis, 106

S.W.3d 860 (Tex. App.—Dallas 2003, pet. denied) (forfeiture provision did not

violate public policy; and beneficiary failed to establish public policy argument as a

matter of law). Thus, such cases do not support Merrick's public policy claim here.

Merrick's argument based on contract law is also inapposite. There is no parallel

between contract law and the law applicable to wills. Thus, the public policy

considerations applicable to contracts have no relationship or application to wills.

The provisions of the Texas Estates Code and case law discussed earlier set forth this

 law and public policy considerations applicable to wills.

       Similarly, the criminal and other statutes and regulations cited by Merrick are

 irrelevant to whether a person, even one convicted of sexual abuse of his daughter,

                                            8
may dispose of his property by will as he sees fit. Simply because child sexual abuse

is a crime (and obviously against public policy) does not in the slightest support the

claim that it is against public policy for one who is accused of such offense, or even

one who has been convicted of such offense, to dispose of his property as he sees fit,

or to disinherit his child.

       Likewise, the Estates Code provision cited by Merrick does not support her

position. Estates Code section 201.062(a)(3), referred to by Merrick, provides that a

parent who has been convicted or placed on community supervision, or has been

adjudicated under title 3 of the Family Code for sexual abuse indecency with a child,

in violation of the Penal Code, and such conduct caused the death or serious injury

of the child, may be barred from inheriting from the child if the child is under 18

years of age. It does not prevent such parent from inheriting from such child who has

reached adulthood. Moreover, the statute requires a conviction (or placement on

community supervision) or an adjudication under the Family Code to prevent

inheritance from the child; mere allegations, even if proved, are insufficient to bar

inheritance from the child. Such statute thus undercuts Merrick's public policy

argument here, where all parties are adults and there has been no adjudication of any

kind concerning Merrick's allegation. Further, the matter at issue in this case

pertains to the right to dispose of property as one sees fit, not the right to inherit. See


                                             9
also Tex. Const. art. I, § 21 ("No conviction shall work corruption of blood, or

forfeiture of estate, and the estates of those who destroy their own lives shall descend

or vest as in case of material death."); Tex. Est. Code Ann. § 201.058(a) ("No

conviction shall work corruption of blood or forfeiture of estate except as provided

in Subsection (b)."); Medford v. Medford, 68 S.W.3d 242 (Tex. App. Fort Worth

2002, no pet.) (brother could not be denied his beneficial interest in home despite

brother's conviction for causing serious injury to his mother, which injury resulted in

transfer of possession of home to brothers), overruled on other grounds by Mansions

in the Forrest, L.P. v. Montgomery County, 365 S.W.3d 314 (Tex. 2012). As the

foregoing demonstrates, rather than support Merrick's public policy argument, the

statutes cited by Merrick, along with the other authority cited above, undercut her

argument and support Appellee's position.

       Merrick's references to statutes requiring the reporting of child abuse are

similarly irrelevant and unavailing and have no application to a person's power and

right to dispose of his property by will. Furthermore, it must be remembered that in

this case, Merrick, as an adult, chose not to report her allegations of sexual abuse as

a child. According to Merrick, even after the Deceased told her, after she confronted

him with her allegations, that the confrontation had cost her $3 million, Merrick




                                           10
chose not to report the alleged sexual abuse. Obviously, at that point, the Deceased

could not even be accused of using inheritance to silence Merrick.

      In short, no authority supports Merrick's public policy claim. Moreover, to

allow a will to be invalidated by such previously unreported and unsubstantiated

allegations of sexual abuse could only result in chaos for the courts. Under such

ruling, any time a child (or other relative) was disinherited, that child (or relative)

could simply accuse the deceased testator of child abuse (or perhaps some other

offense) in order to invalidate the will. Of course, the deceased testator will not be

present to counter the allegations, leaving it to the court to determine the appropriate

burden of proof and to conduct a trial on the merits of the will contestant's

allegations. The court would also, among other questions, have to determine what

types of evidence would be admissible and how the deceased's side of the story could

be presented and his or her reputation defended.

      Clearly, given the complexities of such a legal proceeding and the far-reaching

effects of such a rule, it is the province of the legislature, not the court, to effect such

changes in the law. See With, 652 S.W.2d 353; see also Tex. Est. Code Ann. §

201.062 (discussed above; allowing for barring of inheritance by parent if certain

offenses committed, but offense has to result in conviction or similar outcome). The

court should not attempt to supersede the legislature in such a matter.

                                             11
      Accordingly, there is no legal basis for Merrick's public policy claim.



                                      PRAYER

      For all the foregoing reasons, it is respectfully requested that the Court affirm

the judgment of the trial court dismissing Merrick's public policy claim.

                                        Respe Ily subm ed

                                                                (
                                        Al x R.     dy
                                        State Bar No. 19635000
                                        Law Office of Alex R. Tandy,
                                        Suite A
                                        777 Lonesome Dove Trail
                                        Hurst, TX 76054
                                        Telephone: (817) 281-1600
                                        Facsimile: (817) 485-7588
                                        Email: contact@alextandy.com

                                        Attorney for Appellee




                                           12
                          CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of the foregoing document has

been forwarded to the following attorney of record for Appellant Karla Merrick on

the   go   'day of February 2015:

       Paul M. Bohannon, Esquire
       Bohannon Legal PLLC Suite 450
       8300 FM 1960 West
       Houston, TX 77070
       Via email: paul@bohannonlegal.com



                                       Alex R. Tandy
                     CERTIFICATE OF COMPLIANCE

      This Brief complies with the word limitation set forth in Texas Rule of

Appellate Procedure 94(i) and contains 3,193 words, exclu ng the parts of the Brief

exempted by the Rule.


                                      Alex R. Tandy
