Virginia O. Kinsel, as Attorney-in-Fact for J. Frank Kinsel, J. Frank Kinsel, Jr., Carole K. Edwards, and Catherine K. Collins, Petitioners and Cross-Respondents
Jane O. Lindsey, Individually and as Co-Trustee of the Lesey B. Kinsel Trust, and Robert N. Oliver, Respondents and Cross-Petitioners, and Keith Branyon and Jackson Walker, LLP, Respondents
February 16, 2017
Petition for Review from the Court of Appeals for the Seventh
District of Texas
Justice Lehrmann did not participate in the decision.
Jeffrey V. Brown Justice
asked in this case to recognize tortious interference with an
inheritance as a viable cause of action in Texas. Petitioners
and cross-respondents, the Kinsels, argue we already did so
more than sixty years ago. We disagree. Although some of our
courts of appeals have recognized the tort, we have not. And
because the Kinsels have an adequate remedy in this case-a
constructive trust imposed on the disputed inheritance-we are
not persuaded to consider it here. For that reason and others
explained below, we affirm the court of appeals' judgment
and remand the case to the trial court for further
proceedings consistent with this opinion.
case arises out of the sale of a family-owned ranch. Lesey
Kinsel owned 60% of the ranch, and her step-children and
step-grandchildren owned various shares of the other 40%.
Lesey deeded her share of the ranch to her intervivos trust
in 1996. Under the trust's terms, her 60% interest in the
surface and minerals would pass to certain of her
step-children and step-grandchildren, some of whom already
owned interests in the ranch.
inheritance allocation changed over time. Under a third
amendment to her trust executed in 2004, her 60% share would
be split between J. Frank Kinsel, Jeff Kinsel, Carole
Edwards, and Cathy Collins. Her estate-planning documents
were silent as to what would happen if the ranch were sold
during her lifetime. So by default, any ranch-sale proceeds
would pass to the trust's residual
beneficiary-Lesey's only niece, Jane Lindsey.
Carole, Cathy, and Virginia Kinsel, acting on behalf of the
late J. Frank Kinsel (the Kinsels), would eventually sue
Jane, Lesey's nephew Bob Oliver, attorney Keith Branyon,
and his firm, Jackson Walker LLP, over their role in the sale
of the ranch a month before Lesey died. The Kinsels argue
they were misled by Jane, Bob, and Keith to believe Lesey was
running out of money and needed to liquidate the ranch to
cover the growing costs of her care. In reality, Lesey had
around $1.4 million in marketable securities at her disposal.
But if the ranch were sold and the Kinsels' inheritance
adeemed, Jane would receive Lesey's share of the
ranch-sale proceeds as the trust's residual beneficiary.
The Kinsels who owned shares in the ranch argue they would
not have agreed to sell if they did not believe it necessary
to support Lesey.
Kinsels argue the scheme to co-opt their inheritance began in
2005 when, at age 92 and losing her eyesight, Lesey moved
from her longtime home of Beaumont to an assisted-living
facility in Fort Worth. Jane and Bob, Lesey's only living
blood relatives, lived in Fort Worth, and the record shows
Jane apparently was Lesey's primary caretaker outside of
the 24-hour home care she received beginning in 2006. Jane
and Bob also began helping Lesey with her finances; Jane
wrote checks from Lesey's account to cover her expenses,
and Bob began opening her mail and reading financial
statements to her.
August 2006, Jane wrote to Floyd McSpadden, Lesey's
longtime estate-planning attorney in Beaumont. The letter
mostly covered housekeeping issues regarding Lesey's
estate. But she also inquired "whether or not the
[ranch] minerals are separate from the land in the case of
[Lesey] willing her share of the ranch to some of the
Kinsels." In a letter addressed to Lesey, McSpadden
responded that the mineral and surface estates had not been
severed. On January 24, 2007, Jane indicated in a letter to
McSpadden that Lesey wished to separate the mineral estate in
her share of the ranch and gift it equally to Jane and Bob.
Jane advised McSpadden that Lesey was "thoroughly
informed" and "requested [the changes] be
implemented by you." If McSpadden had any questions,
Jane wrote that he should "contact Lesey by phone."
drafted an updated will and a fourth amendment to Lesey's
trust. Because Lesey now lived in Fort Worth, he recommended
she retain a local attorney to handle their execution. Bob
contacted his son-in-law, an attorney with Jackson Walker,
who in turn referred Lesey to Keith, an estate-planning
attorney in Jackson Walker's Fort Worth office. McSpadden
sent the documents to Keith and, because Lesey could no
longer read, instructed him to read them aloud to her.
and Bob drove Lesey to Keith's office on February 23,
2007, to execute the fourth amendment. Keith testified it was
his first time to meet any of them. Jane and Bob waited in
the lobby while Keith met with Lesey for an hour and a half.
Keith testified he spent that time evaluating Lesey's
mental capacity through conversation, reading the pertinent
documents aloud to her, and ensuring she understood and
desired the proposed changes. In a letter to McSpadden
following execution of the fourth amendment, Keith wrote that
Lesey "knew all of the people that she had chosen to
benefit and she asserted over and over that she was
comfortable with the terms."
after Lesey moved to Fort Worth, various owners of the ranch
broached the idea of selling. There does not appear to be any
evidence that the idea originated with Jane, Bob, or Keith,
none of whom owned an interest in the ranch. Paul Prince, a
part-owner who was in charge of the ranch's upkeep,
testified that he, Cathy, and Joe Bob Kinsel, Jr., another
part-owner, initially decided to sell. Paul and Joe Bob are
not parties to this case, but Cathy testified she only agreed
to sell because Jane told her Lesey was running out of the
testified he then asked Jane to run the proposal to sell by
Lesey. He had spoken with Jane about two months earlier, he
testified, and heard her concerns over Lesey's growing
expenses. Paul told Jane it was a "perfect time to sell
the ranch." He testified that Jane called him back about
a week later while she was with Lesey and said Lesey had
agreed to sell the ranch. Paul testified he then spoke
directly to Lesey on the phone and that she told him that
although she was conflicted by her sentimental attachment to
the ranch, she acknowledged she could no longer visit and it
was time to sell.
Lesey's agreement, a majority of the ranch's
ownership was prepared to sell. Paul ordered an appraisal of
the ranch and secured a broker who in turn produced a buyer.
Most of the co-owners readily agreed to the offer. With a
sales contract Paul signed on the owners' behalf in
place, Keith was again contacted in February 2008 to help
execute the sale. Keith testified he could not recall who
initially brought him into the transaction, but that someone
delivered to him a copy of the sales contract and appraisal.
His billing records reflect he met with Bob and Jane in
February 2008 to review documents regarding the sale. Keith
sent letters to all the ranch owners to confirm their
respective interests, notify them of the offer, and gauge
their desire to sell. In these letters, dated February 15,
2008, Keith stated:
I represent Lesey Kinsel and the trustee of her living trust
with regard to [the ranch]. As you may know, Ms. Kinsel's
living expenses, including the care she receives at her home,
have increased substantially of late. As we have investigated
the various possibilities available to her in raising some
additional cash, she has made the decision that she would
like to sell the referenced property in Atascosa County.
testified he then met with Lesey at her apartment on February
19, 2008, to discuss the ranch sale. Lesey told him she had
grown weary of shouldering the ranch's expenses without
help from the other owners, that she was physically unable to
visit, and that the offer was too good to pass up.
testified he read the terms of the sales contract to her and
that she understood them. He further testified he discussed
with Lesey the tax consequences of selling during her
lifetime as well as the other substantial assets at her
disposal. But Lesey wanted to sell.
and despite earlier indications that the Kinsels were
coalescing behind the sale, J. Frank Kinsel's family,
which included Virginia, Jeff, and Carole, showed signs of
holding out. In an e-mail to Virginia and Carole dated
February 19, 2008, Jeff wrote that he had urged Keith to
"consider putting any monies from [Lesey's] 60% in a
separate trust" and that he doubted Virginia would be
willing to sell J. Frank's interest "unless she
feels that 'we' are protected." Carole responded
that she had met with a lawyer who advised her that "we
need to find out where the 60% will go and who will control
the 60%." Cathy similarly testified that "we were
all concerned that if the ranch were sold and everything was
converted to cash, that that cash had to be separated between
Jane Lindsey's inheritance and our inheritance instead of
early March 2008, Jeff visited Lesey at her apartment. He
testified she was "scared to death she was running out
of money" and "did not know what was going
on." Jeff told Lesey that Keith would not speak with him
about her affairs and drafted a letter for Lesey to sign
authorizing Keith to discuss her estate planning with Jeff.
The letter purportedly is signed by Lesey with just her
initials, which, according to Jeff, "was all Lesey was
able to sign at that time in her life."
testified that he had a phone conversation with Jeff in which
Jeff expressed concern about what would happen with
Lesey's share of the ranch-sale proceeds. According to
Keith, Jeff "threatened to cause [J. Frank Kinsel] not
to join in the sale unless I somehow caused Lesey to change
her estate planning documents to protect the proceeds for he
and his family." Keith testified he would consult with
Lesey. But he reminded Jeff that the buyer was willing to
purchase Lesey's 60% interest even if others were
unwilling to sell.
testified he visited with Lesey the next day about her estate
planning as it applied to the ranch-sale proceeds. Lesey said
that Keith was not authorized to discuss her plans with Jeff
or members of his family. She further told Keith she was
"upset" with the Kinsels and that Jeff and his wife
were visiting her "all the time, trying to make sure
that she was going to leave them their portion of the
proceeds." Keith testified Lesey gave him permission to
discuss her estate planning only with Jane and Bob. Lesey
also told him that she did not want to make any changes to
her estate planning at that time.
eventually agreed to the sale on J. Frank's behalf, and
the deal closed in July 2008. Lesey's trust received $3,
056, 120.65 for Lesey's share, Cathy received $509,
067.96, and Virginia received $509, 279.44 for J. Frank's
interest. Shortly after the ranch sold, Lesey and
Keith met to discuss another amendment to Lesey's trust.
Keith testified he presented her with a proposed fifth
amendment that would have devised the ranch-sale proceeds to
the Kinsels in proportion to the trust's ranch-interest
bequests under the fourth amendment. But Lesey rejected that
draft, opting instead to leave Jeff and Carole $25, 000 in
cash each. She made no specific bequest to Cathy because, as
Keith recollected, "she had just received $509, 000 and
she felt like Cathy . . . had received her interest."
According to Keith, Lesey "was still bothered by all of
the contacts, the visits, the phone calls that she received
from the Kinsels during the process of the sale of the
ranch." Keith prepared the fifth amendment as Lesey had
instructed, which included deleting from the trust all
references to the ranch. Lesey executed it on August 12,
2008. Keith testified he honored Lesey's request to not
share news of the amendment with anyone else. She died ten
Kinsels sued Jane, Bob, Keith, and Jackson Walker, arguing
they unduly influenced Lesey and that she lacked capacity to
execute the fourth and fifth amendments to her trust or to
sell her share of the ranch. They sought damages for tortious
interference with their inheritances; statutory and
common-law fraud; and conspiracy. The Kinsels also sought
imposition of a ...