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Badouh v. Hale - 22 S.W.3d 392 (Tex. 2000)

Rule:

In the context of Tex. Prob. Code Ann. § 37A(g), which requires beneficiary status for acceptance purposes, protects the disclaimer rights of those who take possession or exercise control of property in some other capacity: Where a devisee or legatee is entitled to hold the devised or bequeathed property in a capacity other than that of a beneficiary under the will, such as that of an heir, executor, trustee, or partner, the fact that he entered into or retained possession of the property after the testator's death, or that he exercised certain control over it, does not necessarily give rise to an inference of acceptance of the devise or bequest, in the absence of some other act or conduct on his part tending to show an intent to claim the property as a beneficiary under the will.

Facts:

Rubylien Barber Badouh executed a will specifically bequeathing her home to her daughter, Elaine Badouh Hale. Elaine later pledged her expectancy in the property as security for a note to Charles B. Gorham. A few years later when Rubylien died and her will was admitted to probate, Edward Badouh, Jr., who held a judgment against Elaine, applied for a turnover order of Elaine's interest in her mother's estate. Elaine then filed a disclaimer of her entire interest in her mother's estate. Elaine argued that the application for a turnover order violated the no-contest clause of the will. Reasoning that one cannot act in the capacity of beneficiary until after the testator's death, the court of appeals held that Elaine's pledge of her expectancy was not an acceptance that would invalidate her disclaimer.

Issue:

Was Elaine’s pledge of her expectancy in the property an acceptance that would invalidate her disclaimer?

Answer:

Yes.

Conclusion:

The Court noted that a disclaimer was not effective if the beneficiary has accepted the property. Acceptance would occur if the person making the disclaimer has previously exercised dominion and control over the property in the capacity of beneficiary. Here, the Court held that Elaine exercised dominion and control over her expectancy when she pledged it. Because she did so in the capacity of a beneficiary, she accepted the property under Tex. Prob. Code Ann. § 37A(g) and her present disclaimer was ineffective.

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