DocketNumber： 13-01-00298-CV
Filed Date： 10/10/2002
Status： Precedential
Modified Date： 9/11/2015
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NUMBER 13-01-298-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
IN THE MATTER OF THE ESTATE OF
MARY LEE HAMILTON, DECEASED
On appeal from the County Court
of Wharton County, Texas.
O P I N I O N
Before Justices Dorsey, Yañez, and Rodriguez
Opinion by Justice Dorsey
The issue in this case is whether bequests in a will leaving property to step-grandchildren are void when the will was prepared by the children=s father, an attorney. The issue turns on whether Rule 1.08(b) of the Texas disciplinary rules of professional conduct was violated, which, in turn, is determined by the relationship between the testatrix and the beneficiary children. We hold the rule of professional conduct was not violated, because the attorney=s children, as step-grandchildren of the testatrix, are Arelated to@ the testator as that term is envisaged by the disciplinary rules.
Mary Lee Hamilton, decedent, left a Last Will and Testament that contained bequests to Caroline Adair Hamilton, Vance Matthew Hamilton, Marc Thomas Hamilton, and Vaughn Hamilton. They were the children of her husband=s child, Anthony Hamilton, but bore no blood relationship to her. Anthony Hamilton, a licensed attorney, drafted the will. The children of the testatrix sued for declaratory judgment seeking a ruling that the bequests to Anthony=s children be held void because he violated Texas Disciplinary Rules of Professional Conduct section 1.08(b) by including in the will bequests to his own children. See Tex. Disciplinary R. Prof=l Conduct ' 1.08(b) (1991), reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon 1998). Mary Lee Hamilton=s children moved for and received a traditional summary judgment on grounds the bequests violated rule 1.08(b) and were accordingly void. We reverse the judgment and hold that the bequests did not violate disciplinary rule 1.08(b) because the term Arelated to@ in that rule includes the relationship of step-grandchildren.
We review the trial court=s grant of summary judgment by applying the same standards the trial court should have used. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). That is, we review the summary judgment record to determine whether the movant met his or her burden to show that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). In making such a determination, all evidence favorable to the non-movant will be taken as true, every reasonable inference should be indulged in favor of the non-movant and any doubts resolved in favor of the non-movant. Nixon, 690 S.W.2d at 548‑49.
Rule 1.08(b) states:
A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as a parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.
Tex. Disciplinary R. Prof=l Conduct ' 1.08(b) (1991), reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (emphasis added). Thus, the bequests to Anthony=s children included in Mary Lee=s will ran afoul of this rule unless the children are considered to be Arelated to@ Mary Lee within the rule=s construction of that phrase. If a bequest runs afoul of the disciplinary rule, it may be considered void as violative of public policy. See Shields v. Tex. Scottish Rite Hosp. for Crippled Children, 11 S.W.3d 457, 459B60 (Tex. App.CEastland 2000, pet denied) (noting that the disciplinary rules evidence the public policy of this State).
Mary Lee Hamilton=s will was executed in 1995. At that time, there was no statute in effect that would have voided a bequest that ran afoul of disciplinary rule 1.08(b). The question of whether Mary Lee Hamilton=s step-grandchildren were Arelated to@ her as used in disciplinary rule 1.08(b) appears to be one of first impression. We have located no cases construing the meaning of Arelated to@ in rule 1.08(b), nor do the rules define that phrase elsewhere. Likewise, the commentary accompanying rule 1.08(b) offers little guidance in interpreting how the term Arelated to@ is to be construed. The commentaries state, generally, that the rule Adeals with certain transactions that per se involve unacceptable conflicts of interests,@ and that A[a]s a general principle, all transactions between client and lawyer should be fair and reasonable to the client.@ Tex. Disciplinary R. Prof=l Conduct ' 1.08(b), cmt. 1B2 (1991). Further, the commentary advises that in transactions between client and lawyer Aa review by independent counsel on behalf of the client is often advisable.@ Id. at cmt. 2. Having found no guidance in the rules regarding how far the term Arelated to@ reaches, we look to the probate code, as it deals with similar terms and concepts.
In 1997, the Legislature enacted Texas Probate Code section 58b, which is a parallel statute to disciplinary rule 1.08(b). However, since 58b only applies to wills drafted after the effective date of the statute, it does not govern the outcome of this case. Rather, we look to it for guidance in interpreting the parallel disciplinary rule.
Section 58b renders void Aany devise or bequest of property in a will to . . . an heir . . . of the attorney who prepares or supervises the preparation of the will . . . .@ Acts of 1997, 75th Leg., ch. 1054, ' 1, eff. Sept. 1, 1997. The statute expressly exempted, though, a bequest made to a person Arelated within the second degree by consanguinity or affinity to the testator . . . .@ Id. ' 58b(b). Subsection (b) of section 58b was amended in 2001, and its current version states that a will making a bequest to the heirs of the attorney who drafted the will is not void when the bequest is made to a person who:
(A) is the testator=s spouse;
(B) is an ascendant or descendant of the testator; or
(C) is related within the third degree by consanguinity or affinity to the testator.
Tex. Prob. Code Ann. ' 58b(b) (Vernon Supp. 2002).
This most recent declaration by the legislature guides us in determining how close the relationship between testator and beneficiary must be in order to avoid violation of rule 108(b) of the disciplinary rules. This provision is a statement by the legislature of the public policy of the State as to the relationship between testator and beneficiary that will be allowed when the will is prepared by an attorney related to the beneficiary. We hold that if an heir of the attorney who drafted the will is related to the testator in one of the ways described in probate code section 58b(b), the bequest does not violate disciplinary rule 1.08(b), because the heir is Arelated to@ the testator as that phrase is used in the rule.
The next question is whether the relationship between the testatrix and the beneficiaries is within the third degree of affinity or consanguinity. Although the probate code does not define the term Aaffinity,@ nor does it provide for the calculation of its degrees, the government code does. See Tex. Gov=t. Code Ann. ' 573.024 (Vernon Supp. 2002).[1] Section 573.024 states that Atwo individuals are related to each other by affinity if: (1) they are married to each other; or (2) the spouse of one of the individuals is related by consanguinity to the other individual.@ Id. ' 573.024(a). The code states that two individuals are related by consanguinity if one is a descendant of the other. Id. ' 573.023(a)(1). At the time Anthony drafted the will for Mary Lee, Mary Lee was married to Tom, Anthony=s father. Thus, Anthony=s children, (Mary Lee=s step-grandchildren) were related to her by affinity because they were related to her spouse by consanguinity. See id. '' 573.023(a)(1), 573.024(a).
The government code provides the specific method for calculating degrees of affinity. See Tex. Gov=t. Code Ann. ' 573.025 (Vernon 1994). Section 573.025(b) states that A[a]n individual=s relatives within the third degree by affinity are A(1) anyone related by consanguinity to the individual=s spouse in one of the ways named in Section 573.023(c); and (2) the spouse of anyone related to the individual by consanguinity in one of the ways named in Section 573.023(c).@ Id. ' 573.025(b)(1). Section 573.023(c) states that an individual=s relatives within the third degree include grandchildren (which are actually second degree relatives). Id. ' 573.025(c). Because Mary Lee Hamilton=s step-grandchildren were related by consanguinity to her spouse, Tom, in Aone of the ways named in Section 573.023(c),@ they were related to Mary Lee within the third degree by affinity. Id. ' 573.025(b)(1). Accordingly, we hold that because the relation of step-grandchildren to their step-grandmother is a relationship within the third degree of affinity as described by Texas Probate Code section 58b, we hold that Mary Lee=s stepson=s drafting of her will did not violate disciplinary rule 1.08, requiring that bequests made to the drafting attorney=s heir(s) are not proper unless the attorney=s heir is also Arelated to@ the testator of the will.
We reverse the trial court=s judgment declaring the bequests to Mary Lee Hamilton=s step-grandchildren void, and render declaratory judgment that those bequests do not violate disciplinary rule 1.08 and are not void on that basis. See Tex. R. App. P. 43.2(c).
______________________________
J. BONNER DORSEY,
Justice
Publish.
Tex. R. App. P. 47.3(b).
Opinion delivered and filed
this 10th day of October, 2002.
[1]This chapter of the government code deals with ethical rules pertaining to prohibitions against nepotism in matters involving governmental officials.