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Needing advice in Texas Law. Father passed away, but brother

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told him athat if he...
Needing advice in Texas Law. Father passed away, but brother told him athat if he did not deed over all of his land to him that Taxes & such would take it all...Dad was in terminal health, and deeded it to him. After Father's death we found out when trying to Probate the will, in finding the Deed has been reviewed by handwriting experts & they state it is a Forgery. Brother had POA and signatures apprear to be Forgery on that also. He then signed & was paid for Oil/Gas leases on the said property. What else do we need to do to prove the forgery, and that the Notary may have been in on this also, in regards XXXXX XXXXX Law, and in what court should we persue this matter?
Submitted: 9 years ago.Category: Legal
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1/2/2009
Lawyer: MStrisik, Attorney replied 9 years ago
MStrisik
MStrisik, Attorney
Category: Legal
Satisfied Customers: 288
Experience: General practitioner; former litigator.
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Hi sheila,

Have you already been through the probate system? What is the current status of the estate of your father?

This will help me answer you.

M. Strisik, Esq.
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Customer reply replied 9 years ago

not probated.

We all thought it was to be probated. We drew up family divides, and took the will to an attorney...when he asked about property and I said he had the acreage...my brother chimed in and said...oh, well he deeded it to me awhile back....the attorney flippantly said...well, it's yours son...I've got to go to court...please pay on your way out...

Then I began to research the matter & have gathered all the docuements...and my brother has even told me several times that he told daddy...."if you don't deed it over to me the taxes and doctors will get it all, and that he promised to take care of like daddy wanted".....

currently I am still gathering information on how much more I need to prove that my dad did not sign the deed over to my brother...I believe it was duress & that possiby my father was not even there..... Trying to figure out how much more evidence I'll need. I am feeling confident that my borther and his notary will probably say Dad signed it in front of her.

Lawyer: MStrisik, Attorney replied 9 years ago
Understood.

The party who can bring a suit is the party who has been damaged. As of now, only your father's estate has been damaged, so the executor or executrix could perhaps bring the suit. Otherwise, depending on the date of death of your father, it might be an action that you can bring on your own - as a person who should have recovered under the estate. This will have to be answered by a local TX practitioner.

I can tell you that if your claims are true, then you have the ability to initiate an action against your brother for economic duress and fraud (forgery).

The elements of duress are (1) a threat or action taken without legal justification; (2) the threat or action was of such a character as to destroy the other partys free agency; (3) the threat or action overcame the opposing partys free will and caused the party to do that which he or she would not otherwise have done and that which he or she was not legally bound to do; (4) the restraint was imminent; and (5) the opposing party had no present means of protection. Chapman Children=s Trust v. Porter & Hedges, L.L.P., 32 S.W. 3d 429, 443 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). Economic duress may be claimed only when the party against whom it is claimed was responsible for claimants financial distress. Deer Creek Ltd v. North Amer. Mortg. Co., 792 S.W.2d 198, 203 (Tex. App.CDallas 1990, no writ).

The elements of fraud are: (1) a material misrepresentation was made; (2) the representation was false; (3) when the representation was made the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation intending that the other party act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. Formosa Plastics Corp. USA v. Presidio Eng=rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998).

Note that it is a crime for a notary to attest to a document that was not signed by the party who is representing to have signed the document. Your attorney will help bring this document into evidence properly.

Finally, your father's will itself will provide a great deal of help to a judge. The will shows your father's intentions. When we get in front of a judge about a person's estate - the judge will always look to see what the person's intentions were when they drafted their will.

Best of luck. Please accept and feel free to follow-up.

M. Strisik, Esq.




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Customer reply replied 9 years ago
if the signature is not my father's is that a criminal forgery case instead of a civil case? would it be better to turn that over to the authorities (district attorney) and let it be investigated under their jurisdiction?
Lawyer: MStrisik, Attorney replied 9 years ago

Hi again sheila,

 

It would be to your benefit if the authorities could prove the forgery. This would help your fraud case; or, at the very least, it would work to void the transfer of the land to your brother. At the end of the day what we want here is everyone to rightfully share in your father's estate. Your brother strong-armed his way into an inheritance and it may have been against your father's wishes.

 

The authorities will be helpful. They will help your case.

 

M. Strisik, Esq.

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