In Merrick v. Helter, a daughter who accused her father of sexual abuse attempted to void her father’s will based on public policy grounds. No. 03-14-00708-CV, 2016 Tex. App. LEXIS 8966 (Tex. App.—Austin August 18, 2016, no pet. history).  Two days before the father died, he signed a will that left no property to his only child, the daughter, and explicitly disinherited her. After he died and his will was admitted to probate, the daughter filed a contest seeking to invalidate the will on public policy reasons and clear the way for her to inherit through intestate succession. Her principal theory was that her disinheritance violated “public policy”—namely Texas’s strong public policy against sexual abuse of children. As her factual predicate for that theory, she alleged that her father had abused her sexually while she was a teenager and had disinherited her after she confronted him with those allegations decades later. The executor filed a motion to dismiss under Texas Rule of Civil Procedure 91a contesting whether the daughter’s “public policy” theory would be a viable basis in Texas law for the relief she sought even if her version of the facts were true. The probate court granted the Rule 91a motion and dismissed the daughter’s claim.

The court of appeals first addressed the relatively new Rule 91a motion to dismiss. The court noted that Rule 91a permits a party to “move to dismiss a cause of action on the grounds that it has no basis in law or fact.” Dismissal on a “no basis in law” ground is appropriate “if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.” The court held that whether this standard is met “depends ‘solely on the pleading of the cause of action.’”

The court then moved onto the central issue in the case: whether the daughter could void the will due to public policy reasons. The court noted that the general rule is that a person of sound mind has a perfect legal right to dispose of his property as he wishes and may disinherit an heir if he desires. The daughter relied on authority that certain terms in wills may be deemed unenforceable on “public policy” grounds. She argued that: Texas public policy strongly condemns sexual abuse, particularly sexual abuse of minors, or conduct aimed at concealing or aiding it; that the father used his will and her disinheritance from it as a means of “silencing” her from divulging the sexual abuse and subsequently “punishing” her for confronting him about it; and the will provision disinheriting her runs afoul of the aforementioned Texas public policy, rendering the provision unenforceable.

The court stated that will construction cases dealt with ascertaining the objective meaning of the language actually used within the “four corners of the will,” not from perceptions of the testator’s subjective intent. The court noted that the daughter’s “public policy” challenge was grounded entirely in asserted conditions or limitations that appear nowhere in the will’s text and allegations about the father’s subjective motives in drafting the will as he did. The court also held: “Even if we were to look beyond the will’s ‘four corners,’ Merrick failed to allege facts to support any theory that Cole conditioned Merrick’s inheritance on her remaining silent about the claimed sexual abuse.”

Finally, the court held:

But more critically, Merrick’s arguments erroneously presume that she has any entitlement to an inheritance from Cole in the first instance. On the contrary, as this Court recently observed in Anderson, “a prospective beneficiary’s interest in receiving an inheritance is merely in the nature of an expectancy or hope,” and it was for this reason we held that an inheritance falls short of the type of protected contractual or economic interest whose disturbance could be actionable through the tortious-interference tort. Undergirding that analysis, we explained, was the “perfect legal right” of a testator with sound mind “to dispose of his property as he wishes,” a right that includes, as previously noted, the prerogative of disinheriting an heir if the testator sees fit. Further, as Helter emphasizes, the Legislature has not seen fit either to require testators in Cole’s alleged position either to provide an inheritance for their victim or to proscribe them from disinheriting the victim. The closest the Legislature has come is to authorize probate courts to bar a parent from inheriting from a child (the reverse of the situation here) who dies intestate (whereas here there is a will) where the parent has been convicted or placed on community supervision for certain crimes against that child, including sexual offenses (and no such criminal charges or dispositions occurred here). In the very least, we can say with certainty that the Legislature has not seen fit—at least as of yet—to authorize, let alone require, the recovery Merrick seeks.

The court of appeals affirmed the dismissal, finding that the daughter’s public policy argument found no support in the will, the factual allegations, or the law.

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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law