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Dudley v. Jake & Nina Kamin Foundation

Court of Appeals of Texas, First District

January 28, 2014

LISA T. DUDLEY, CINDI L. ARMER, KRISTEN K. THELANDER, AND GUNNAR K. THELANDER, Appellants
v.
THE JAKE AND NINA KAMIN FOUNDATION, Appellee

On Appeal from Probate Court No. 2 Harris County, Texas Cause No. 399, 104-401

Panel consists of Justices Keyes, Higley, and Massengale

MEMORANDUM OPINION

Michael Massengale, Justice

This appeal arises from a declaratory judgment action concerning the administration of the will of the late Jake Kamin. The appellants, his grandchildren, challenge the trial court's conclusion that Kamin did not die partially intestate as to one-half of his separate property. They contend that the will's reference to one-half of Kamin's property is a failed specific bequest that passes through intestacy. We affirm.

Background

Jake Kamin signed his Last Will and Testament on July 24, 2008. At the time of his death, Jake was married to Nina Nathan Kamin and had four living grandchildren: Lisa T. Dudley, Cindi L. Armer, Kristen K. Thelander, and Gunnar K. Thelander. The will disposed of Jake's property through a series of specific bequests and a residuary clause, which provided as follows:

A-7 Residuary Estate. I give all of the remainder of my estate, including any of the above gifts that lapse ("my residuary estate"):
(a) If my wife survives me, to the trustee of the Nina Nathan Kamin Marital Trust.
(b) If my wife does not survive me, to the Jake and Nina Kamin Foundation.
The will also includes a paragraph describing Jake's "Separate Property":
F-3. Separate Property. The gift under Paragraph A-3(b) of one-half of my separate property shall include those assets (other than the items expressly excluded from such gift) . . . . My wife and I have kept careful records indicating which assets comprise our community estate and which our respective estates . . . for purposes of the gift under Paragraph A-3(b).

Although Paragraph F-3 references a gift under Paragraph A-3(b), there is no Paragraph A-3(b) in the will.

Jake passed away in 2010. Nina died one year after Jake, causing the property identified in the residuary clause to pass from the marital trust to the Foundation according to the trust's terms. The grandchildren filed a declaratory judgment action in probate court to construe the will, and the Foundation filed a counterclaim and cross-claim for declaratory judgment. Both parties moved for traditional summary judgment; the probate court ruled in favor of the Foundation. It held that Jake Kamin did not ...


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