Nadine Ivy Phillips v. Betty Jean Ivy ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-02-00265-CV

Nadine Ivy Phillips,

                                                                      Appellant

 v.

Betty Jean Ivy,

                                                                      Appellee

From the 87th District Court

Freestone County, Texas

Trial Court # 01-084-B

DISSENTING Opinion

        We should not go behind the language of the disclaimer.  See Tex. Prob. Code Ann. § 37A (Vernon 2003); Badouh v. Hale, 22 S.W.3d 392, 396 (Tex. 2000).  I would hold that the disclaimer had the effect, even if the will was more expansive in its donative language, of limiting Betty’s interest under Article III of the will to a traditional life estate.  This would require a reversal of the trial court’s judgment and a remand to the trial court to resolve issues that remain to be decided regarding the relative rights of the life tenant and the remainderman in the proceeds of the sale of the corpus and income derived therefrom.

      All doubt about what the testator may have intended in his will was removed by the disclaimer signed by the widow.  The disclaimer states:

   I hereby irrevocably and without qualification disclaim, renounce and refuse to accept any interest under Article III of the will other than a life estate, it being my intent hereby that I have no interest in the remainder of such property.

      If, for any reason, we somehow avoid the clear language of this disclaimer, we will have not only bent the words of this disclaimer beyond its breaking point, we will cause uncertainty in any estate planning application that involves the use of a disclaimer.

      Due to the language used in the will, Betty wanted certainty and predictability with regard to her own estate planning, not just the benefits that she would receive under her husband’s will.  To achieve this certainty, she signed a formal legal document, as provided for by the probate code, that would have a certain effect: to identify and define the property that she was to receive under the will.  I would give that legal document the effect that it has for all other purposes, and would hold that Betty’s disclaimer limited the gift under Article III to a traditional life estate.  Thus I would not need to address Phillips’s first issue.  Because the majority holds otherwise, I respectfully dissent.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed August 18, 2004